Panellist: Khuduga Tlale
Case Reference No.: ELRC695-25/26FS
Date of award: 25 February 2026

In the matter between:

SADTU obo Lebohang Grace Molaba Applicant

And

Department of Education – Free State 1st Respondent

BK Ramookho 2nd Respondent

ARBITRATION AWARD

Details of hearing and representation

1. The arbitration hearing between SADTU obo Lebohang Grace Molaba (“the applicant”) and Department of Education – Free State (“the 1st respondent”) and Mr. BK Ramookho (“the 2nd respondent”) was held on 09 and 10 February 2026 at the 1st respondent’s offices in Phuthaditjhaba. The applicant appeared in person, and Mr. B Mbhele, Regional Secretary, represented her. Mr. Thulo Tsunke, Assistant-Director: Dispute Resolution, represented the 1st respondent. The 2nd respondent appeared in person, and he represented himself.
2. These proceedings were conducted in English, and were digitally, and manually recorded. The parties agreed to submit the written heads of argument on Tuesday, 17 February 2026.

Issues to be decided

3. The issue in dispute is whether an unfair labour practice was committed against the applicant when she was not promoted to the position of Head of Department (PL2) at Mampoi Secondary School at Thabo Mofutsanyana District. Background to the dispute
4. The 1st respondent advertised the position of a Head of Department (PL2): Mathematics, Geography and Physical Science at Mampoi Secondary School with post reference number 911040/206 with closing date of 24 February 2025. The applicant and 2nd respondent applied for the said position, and they met the inherent requirements of the post. They were both shortlisted, and interviewed on 24 April 2025. After the interviews, the applicant was the highest scorer, and the 2nd respondent was the 2nd scorer. The interviews panel members ranked the applicant and the 2nd respondent as the 1st and 2nd suitable candidates to be appointed.
5. The School Governing Body (SGB) changed the interviewed panel ranking of candidates, and they made the 2nd respondent and the applicant as the 1st and 2nd suitable candidates. The SGB recommended the promotion of the 2nd respondent as the first suitable candidate to be appointed, and the applicant the 2nd suitable candidate to be appointed. The 1st respondent approved the promotion of the 2nd respondent, and he was promoted with effect from 01 July 2025. The applicant earned R36 300, 90, per month.
6. The 2nd respondent was joined as a party to the proceedings. The applicant referred an unfair labour practice dispute relating to promotion to the Education Labour Relations Council (“ELRC”) alleging that her non-promotion was procedurally, and substantively unfair. She sought promotion or the selection process be re-done. The dispute was not resolved at conciliation, and it was referred for an arbitration. The parties submitted bundle of document, and marked bundle “A”.

Summary of Evidence

THE APPLICANT’S EVIDENCE

First Witness: Ms. Lebohang Grace Molaba

7. The witness testified under oath that she was the applicant in this matter, and she acted for one (1) year, and six (6) months in the disputed position. The school principal told her that she preferred this position to be filled by a male. She went to the interviews knowing that she was not the preferred candidate. She was the best suitable candidate after the interviews. She had no knowledge what she had done to receive this kind of conduct from the 1st respondent. The school principal was the one who convinced the SGB about the preferred candidate.
8. Under cross-examination, she stated that the interview process was not fair. Doc “A27” of the PO10 was completed after the interviews. SADTU representative at the interviews was not telling the truth when he said that the process was fair. She was told that the school principal does not want to work with her because she was disrespectful. She denied the allegation to say that her department was not performing well, and she was disrespectful at the school. She confirmed that there were classes, especially grades 10 and 11, that performed poor. Grade 12 mathematics improved to 100%. Document “A4” was the SGB motivation for deviation, and document “A9” was the scoring of candidates.
9. The 2nd respondent stated that he had no questions for the witness. The 2nd respondent was cautioned about his decision, and its implication, but he maintained that he had no questions for the witness.
10. Under clarity questions, she stated that the interview process was not fair because PO10 form was completed after the interviews. She had no knowledge when PO10 form must be completed. She heard that there were fiddling of scores, and adjustment of scores. She stated that fiddling was done after the interviews of candidates. The candidates scores were increased and decreased. This adjustment did not affect her. She scored the highest after the interviews. She was not asked questions during the interviews about the performance of grades 10 and 11. Second Witness: Mr. Tumelo Desmond Moloi
11. The witness testified under oath that he was the observer during the selection process of the said position. The marks allocation to the candidates were not on how they responded the questions. They raised an objection about scoring, and the resource person confirmed the candidates were not scored properly. The panel members re-visited their scoring, and re-score the candidates as per their responds. The applicant was ranked number one (1) after the interviews. The interviews were concluded late at night, and they did not complete the PO10 forms. He did not attend the SGB meeting after the interviews. There was no meeting for ranking of candidates.
12. Under cross-examination, he confirmed that it was his signature at document “A27”. He maintained that he signed these document days after the interviews. He alleged that this document was blank when he signed it. He confirmed that document “A9” was not an official document. He had a problem with the initial allocation of scores. The candidates were not questioned about their performance at grades 10 and 11.
13. The 2nd respondent stated that he had no questions for the witness. The 2nd respondent was cautioned about his decision, and its implication, but he maintained that he had no questions for the witness.
14. Under re-examination, he stated that the applicant met the post requirements.
15. Under clarity questions, he stated that the applicant was not asked question about his conduct during the interviews. The panel members initially did not score candidates in terms of their responses to the questions, and that was fiddling. He was not part of the SGB meeting after the interviews. He had no knowledge whether he was supposed to form part of the SGB meeting. THE 1ST RESPONDENT’S EVIDENCE First Witness: Mr. Hanyape Jacob Molahlehi
16. The witness testified under oath that he is the principal at Ntebohiseng Primary School, and member of the SGB at Mampoi Secondary School. He was a member of the selection process of this position. Mr. Moloi was an observer during the interviews as per “A24”. The interviews were held on 24 April 2025. Mr. Moloi signed PO10 immediately after the interviews. They had SGB meeting after the interviews, and Mr. Moloi was not part of that meeting. Document “A4” was the motivation for deviation. The applicant performed exceptionally well during the interviews. They ranked the candidates in terms of their scoring, and they presented their ranking to the SGB.
17. The SGB advertised this position to address curriculum, and they also looked at the challenges of the school. The applicant acted in this position for sometimes, and she was given an opportunity to proof herself. The school used to outsource people from outside to assist the grades 10 and 11 in Geography in order to improve the results. The 2nd respondent explained how he was going to bring stability in the department of Geography. To promote the 2nd respondent was going to assist the school to save costs in relation to Geography, and his presence would add more capacity for grades 8-12. Grades 10 and 11 were not performing well.
18. The 2nd respondent stated that he had no questions for the witness. The 2nd respondent was cautioned about his decision, and its implication, but he maintained that he had no questions for the witness.
19. Under cross-examination, he confirmed that the applicant met the post requirements. Document “A20” was addressing the target group. He confirmed that the applicant was fairly discriminated when scores were allocated to the targeted group during the shortlisting process. He confirmed that it would not be fair to deal with equity after the interviews because it was addressed during the shortlisting. The trade unions were not invited to attend the SGB meeting after the interviews. The ranking and recommendation of candidates were done during the SGB meeting. Everyone including the trade union observers signed PO10 before they left the premises on 24 April 2025.
20. He confirmed that the applicant was the highest scorer after the interviews, but she was not a black male. The decision of the SGB was based on the curriculum needs of the school, and their motivation for deviation was as per “A4”. The scores of the candidates were discussed during the interviews. He denied the allegation to say that the panel members talked about the applicant’s behaviour.
21. Under re-examination, he stated that document “A4” was the true reflection of the SGB meeting.
22. Under clarity questions, he stated that the SGB wanted to reinforce stability at the school. The SGB had to contract outside people to assist Geography learners in order to improve the results. The 2nd respondent had something more to offer, and the SGB changed the ranking of candidates. The school had a discipline problem, and the 2nd respondent would assist in that aspect. The ill-discipline at the school happened while the applicant was still acting in this position. The panel members did not ask the applicant questions about the poor performance of grades 10 and 11 in Geography. The employment equity was not the reason for the SGB to deviate from the interviews outcome. THE 2ND RESPONDENT’S EVIDENCE
23. The 2nd respondent stated that he was not going to led evidence. The 2nd respondent was cautioned about his decision, and its implication, but he maintained that he was not going to lead any evidence.

Summary of Argument

THE APPLICANT’S ARGUMENT

24. The applicant’s representative submitted that the interview scores were manipulated to the applicant’s disadvantage. The SGB provided invalid reasons to alter candidate rankings. There was an adjustment of candidate scores. The interview panel did not ask the applicant questions about her performance during the interview. The applicant’s sought promotion or the selection process be re-done by the independent panel.

THE 1ST RESPONDENT’S ARGUMENT

25. The 1st respondent’s representative submitted that there was no evidence to prove that there was any malicious intention on the interview panel and SGB. The South African School Act does not clearly indicate how the SGB should make a decision once they have received the interview panel’s ranking of candidates. The appointment of the applicant as the first rank candidate would not have address the imbalance. There was a need for parity, and therefore the promotion of the 2nd respondent was made in line with addressing this imbalance.
26. Section 6(3)(a) of the Employment of Educators Act, 76 od 1998, (“EEA”) states that no appointment, promotion or transfer may be made except on the recommendation of the SGB. The EEA does not require the SGB’S order of preference to follow the interview panel’s ranking. The applicant did not proof that there was any undue influence on the SGB to recommend the promotion of the 2nd respondent. The Personnel Administration Measures states that the SGB must make its own consideration after receiving the interview ranking of candidates. The 1st respondent’s representative referred me to Kotze v Department of Education, Northern Cape (ZANCHC 2024) and argued that this case was his authority that the SGB must not rubber stamp ranking of the interview panel. The SGB exercise its power derived from the legal framework in a fair manner, and in the interest of learners. THE 2ND RESPONDENT’S ARGUMENT
27. The 2nd respondent did not submit his argument as agreed.

Analysis of evidence and arguments

Introduction

28. Section 186(2)(a) of the Labour Relations Act, 66 of 1995, as amended (“the Act”), states that an unfair labour practice is any unfair act or omission that arises between an employer and an employee involving-

• unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to benefits to an employee.

29. The dispute before me relates to an alleged unfair conduct by the 1st respondent relating to promotion. In promotion disputes, the applicant bears the onus to prove that the 1st respondent’s conduct was unfair. On the other hand, the 1st respondent, is in the same token, obliged to defend challenges on the substantive, and procedural fairness, if it wishes to avoid a negative outcome.
30. Promotion is an area of managerial prerogative unless the applicant can prove bad faith, or improper motives. It is not the commissioner’s function, or responsibility to choose the best candidate for promotion for the 1st respondent, but simply to ensure that in selecting candidates for promotion, the 1st respondent does not act unfairly. All that the 1st respondent was required to do in these proceedings were to show that it had a rational basis for its decision.
31. Section 138(7)(a) of the Act enjoins me to provide brief reasons for my findings.

Pre-arbitration minutes

32. In Sethole and others v Dr. Kenneth Kauda District Municipality (JS 576/13) (2017) ZALACJHB 484; (2018) 1 BLLR 74 (LC) (handed down on 21 September 2017), the Court, in dealing with an agreement to limit issues as contained in a pre-trial minute, referred to the decision by the Labour Court in NUMSA and others v Driveline Technologies (Pty) Ltd and another, where it was held:
    “I think it is necessary immediately to accept as a point of departure that, where a litigant is a party to a pre-trial minute reflecting agreement on certain issues, our Courts will generally hold the parties to that agreement or to those issues…”
33. In this matter, I was required to decide whether there was a fiddling on the applicant’s scoring by the interview panel members, and whether the SGB had a valid reason to change the ranking of candidates. The parties will be held to that, which they had agreed when the proceedings started. It is impermissible to seek to change positions basically halfway through the proceedings. Whether there was fiddling on scoring?
34. Fiddle is defined in the Oxford Dictionary as “falsify (figures, data, or records), typically in order to gain money’’. The question that need to be asked is whether the applicant proved that the interview panel members fiddled with her scoring. The applicant did not lead any evidence in relation to this allegation when testifying as witness. It was the evidence of Mr. Moloi that the candidates were not allocated marks in terms of their responses to the questions, but the panel members correct that conduct or omission. I, therefore, conclude that the applicant failed to adduce evidence demonstrating that the interview scores were falsified or manipulated. Whether the SGB had valid reason?
35. The dispute between the parties arose against the background that the applicant, and the 2nd respondent were recommended for the promotion to the position of the Head of Department by the SGB. The real dispute of the applicant was that the decision of the SGB to change the interview ranking of candidates were not fair. It is common cause that the applicant was the highest scorer after the interviews, and she was ranked number one (1) by the interviews panel members. It is further common cause that the SGB recommended the 2nd respondent as the first suitable candidate to be promoted, and the applicant as the second suitable candidate.
36. The ultimate decision to make appointment was that of the 1st respondent, after receipt, and consideration of the recommendation of the SGB. If the employee was not denied the opportunity for competing for a position, then the only justification for scrutinizing the selection process was to determine whether the promotion was arbitrary or motivated by an unacceptable reason. The employee who complain that the employer’s decision or conduct in not appointing her constitutes an unfair labour practice must first establish the existence of such decision or conduct. If that decision or conduct was proved, the enquiry is whether the 1st respondent’s decision was arbitrary, irrational, capricious, or procedurally unfair.
37. It was the 1st respondent obligation to place evidence of the fairness of the process followed and the rational for the promotion/non-promotion, to satisfy the proceedings that the promotion/non-promotion was rational, and thus fair. The 1st respondent must demonstrate that they acted fairly, in good faith, and applied its mind to the selection.
38. The applicant sought reasons for not been promoted because she was the highest scorer after the interviews. The issue was whether the 1st respondent in exercising its discretion, and by promoting the 2nd respondent, acted rationally, or whether it was motivated by other irrelevant considerations. It is the 1st respondent’s version that the SGB wanted to reinforce stability at the school, and Geography in grades 10 and 11 were performing poorly. The school had a discipline problem, and the 2nd respondent would assist in that aspect.
39. The ill-discipline at the school happened while the applicant was still acting in this position. It was further the 1st respondent’s version that the panel members did not ask the applicant questions about the poor performance of grades 10 and 11 in Geography, and ill-discipline in that department. The employment equity was not the reason the SGB deviated from the interviews outcome.
40. While the 1st respondent retains discretion in promotion decisions, such discretion must be exercised fairly and rationally. The reliance on concerns relating to departmental performance and discipline were not canvassed with the applicant during the interview. Central to the applicant’s case was that in the absence of any reasonable justification, the decision not to promote her was at best arbitrary. Her contention was that she was the first ranked candidate to be promoted. She met all the inherent requirements of the position, and that not being promoted caused prejudice to her. I, therefore, conclude that the absence of a reasonable and objective justification for deviating from the interview ranking, and the failure to promote the applicant constituted an unfair labour practice.

Conclusion

41. In these circumstances, I find the applicant had substantiated her claims that she was subjected to an unfair conduct by the 1st respondent relating to promotion. Remedy
42. In terms of Section 193(4) of the Act, an arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re-employment or compensation. The applicant seeks an award directing the 1st respondent to promote her, or the selection process to be re-done.
43. Although the 2nd respondent was suitable candidate to be promoted, the process leading to his promotion was unfair. In exercising my discretion, I decline to order the promotion of the applicant based on the following reasons; the disputed position was filled more than six (6) months ago. The school management and administration will be negatively affected, the learners will suffer, and it will not be in the best interest of the school, SGB, learners and community at large to nullify and set aside the promotion of the 2nd respondent.
44. Section 194(4) of the Act states that the compensation awarded to an employee in respect of an unfair labour practice must be just and equitable in all the circumstances, but not more than the equivalent of 12 month’s remuneration. In terms of the remedy, I will award compensation to the applicant. I, therefore, believe that compensation equivalent to six (6) months of her current basic salary under the circumstances is just and equitable, which is calculated as follows: R36 300, 90, per month x 6 months = R217 805, 40.

Award

45. The applicant, Ms. Lebohang Grace Molaba, had proved that the 1st respondent had committed an unfair labour practice by failing to promote her on the position of a Head of Department at Mampoi Secondary School.
46. The 1st respondent, Department of Education – Free State, is ordered to pay the applicant six (6) months compensation of her current basic salary in the amount of R217 805, 40, which must be paid into the applicant’s bank account, as known to the 1st respondent, by no later than 31 March 2026.

Signature:
Commissioner: Khuduga Tlale
Sector: Education