Arbitrator: Macjon Maarman
Case number: ELRC338-25/ 26 KZN
Date of Award: 02 December 2025

Mzwenkosi Dennis Phungula Applicant
and
Department of Basic Education, Kwa-Zula Natal 1st Respondent

Mr. Bonginkosi P. Sibanyoni 2nd Respondent

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration hearing took place virtually and concluded on 20 November 2025. The applicant, Mr. Mzwenkosi Dennis Phungula (herein after “the applicant”), was present and represented by Mr. Sibusiso Phungula, an attorney from Sibusiso Phungula Attorneys. The first respondent, Department of Basic Education, Kwa-Zulu Natal, was present and represented by Mr. Cyril Ngobo, its Employee Relations Officer. The second respondent, Mr. Bonginkosi Sibanyoni was also present. The proceedings were manually and digitally recorded. Parties submitted bundles of documents which was accepted for what it purported to be. Parties submitted closing arguments on the agreed date.

ISSUE TO BE DECIDED

2. I am required to determine whether the first respondent committed an unfair labour practice by not promoting the applicant to the advertised position of Principal at Mawele High School. The applicant seeks that the recruitment process be started afresh.

BACKGROUND:

3. It was common cause that the applicant applied for, was shortlisted and interviewed for the promotional post of Principal at Mawele High School which was advertised under post number 1771 of HRM Circular number 20 of 2024. The applicant was not promoted. The second respondent was promoted/ appointed.
4. The applicant alleges that an unfair labour practice was done by the first respondent in not promoting him on the grounds that there was a member of the Interview Committee who does not form part of the circuit, a Mr. Derrick Sibisi, who had to be part of the interview committee was requested to go to the meeting and thus not able to form part of the Interview Committee, improper questions relating to the BELA Act in the interview which the applicant said that was not an Act at the time of the interviews (February 2025), that the grievance outcome was signed after the grievance committee chairperson had passed on, that the candidates were not given equal time in the interview, that the resource person, Mr. Buthelezi, influenced the scores
   SURVEY OF EVIDENCE AND ARGUMENT
5. This award does not contain everything that was said that the arbitration or in the closing arguments of the parties. It only records the evidence and arguments material to the subject matter and the finalization of the dispute. This is in line with section 18.6.1 of the ELRC constitution as well as section 138 (7) of the LRA. The applicant’s case
6. Mr. Mzwenkosi Dennis Phungul (herein after “the applicant”) testified that Mr. Magubane does not reside in the circuit and he works at the Provincial offices hence he should not have been co-opted to be a member of the Interview Committee. He said that he submitted a grievance after his non-promotion and that the grievance meeting was arranged but Mr. Ngcobo passed on prior to that grievance hearing. The applicant further said that he did not think that it was proper to ask questions about the Basic Education Laws Amendment Act (herein after “BELA act”) as it was not in line with resolution 11 of 1997 (interview guidelines) as it was just a bill in February 2025.
7. The applicant continued to testify and said that the Interview Committee members weren’t four when they allocated scores. He said that Mr. Buthelezi was the circuit manager at the time hence some of the Interview Committee members were scared.
8. Under cross examination, the applicant said that at the time of the interviews he was the acting principal of the school and part of the School governing body. He said that when they had the HRM 20 meeting he was asked to leave the meeting as he was going to be a candidate in the interviews. The applicant further said that he did not report to the district that some School Governing Body (herein after “SGB”) members did not have biological children at the school and that he did not see how the other candidates were interviewed as his interview was alone.
9. The applicant continued to testify and said that the interview Committee co-opted Mr. Magubane even though he does not reside within the circuit and that no other SGB meeting sat which resolved on the co-option of Mr. Magubane. He said that Mrs. Nyelembi told him that Mr. Magubane was incorrectly co-opted and that in a particular training they (attendees) advised the department that only a Community member from within the circuit can form part of the Interview Committee which they carried across via their provincial secretary in 2023 to the respondent.
10. The applicant continued to testify and said that clause 10.2.5 of HRM 20 of 2024 outlines that “additional members may be co-opted from the community by the SGB for their expertise that may be required in the recruitment function (for this purpose community is defined as the circuit in which the school is based). He said that he is not aware of the grievance process or procedure like the fact the Head of department makes the final decision.
11. The applicant said that the time given to candidates in the interviews was fair but they were asked about the BELA act which was still a bill in 2024.
12. In the closing arguments the applicant said that the interview committee should have been dissolved and be reconstituted; it is the applicant’s submission that the purpose of the committee was constituted in a way that will favor a particular candidate and it was biased in the conducting of the interviews. He said that during the interview process a substantive labor practice in promotions occurred when an employer’s decision to promote was based on unfair or biased criteria in that some candidates were given more to in answering all the questions more importantly a chairperson of the committee, Mr. Madondo, together with the Resource person allowed the committee to discuss scores allocated to candidates.

The first respondent’s case

13. Mr. Zitha Buthelezi (herein after “Mr. Buthelezi”) was the witness for the first respondent. He said that he is a Circuit Manager for the Thukela Circuit and was the resource officer in the interview process for the principal of the school forming the subject matter is this arbitration. He said that the shortlisting for the principal post was done on 19 February 2025, the interviews held on 28 February 2025 and that the School Governing Body and Interview Committee was duly constituted.
14. Mr. Buthelezi continued to testify and said that the School governing body has co-opted members and the clause 10.2.5 of HRM 20 of 2024 holds that additional members may be co-opted by the SGB and the Schools Act further gives the SGB the power to co-opt members of the community to discharge its functions. He said that the Basic Education Laws Amendment Act of 2024 sets out that a SGB may co-opt members of the community or persons from outside the Community to assist it to discharge its duties. He further said that Clause 10.6 of HRM 20 of 2024 says that a SGB may appoint persons who are members of the SGB to the Interview Committee but a SGB member must be the chairperson of that Interview Committee and that Mr. Magubane was appointed to the SGB in terms of clause 10.6 of HRM 20.
15. Mr. Buthelezi further testified that the BELA was signed in September 2024, and the outstanding 3 sections signed off in December 2024 meaning that by the time of the shortlisting of the principal post (February 2025) the BELA was in full effect. He said that 4 questions were made use of for purposes of the shortlisting and 5 questions for the interviews which encompassed questions of administrative leadership. There were three people who scored the candidates, the scores consolidated at the end and he participated when the consolidation discussions were held.
16. Mr. Buthelezi continued to testify and said that the first respondent works with systems hence there was grievance outcome even after the passing of the late grievance committee chairperson, Mr. Ngcobo, passed on. There were other members of the grievance committee and the Head of department at the end communicates the decision of the first respondent. He said that the Schools Act (and BELA act) outline who may be members of the School Governing Body hence Mr. Madondo (erstwhile principal) was a member of the SGB because he has child at the school. He said that the applicant was the acting principal for 12 to 14 months and did not tell him about any SGB member who was not eligible for the position of SGB member.
17. Under cross examination, Mr. Buthelezi said that it was the SGB meeting that elected the Interview Committee chairperson and that an expert is someone who is clued-up on the issues and has the skills required to determine what’s needed for a person to be a principal. He said that he cannot remember any person saying that the have an interest to declare.
18. Mr. Buthelezi lastly said that he did not influence the scores. The second respondent did not deliver any testimony nor called any witnesses.
19. In their closing arguments the respondent said that the interview committee was established per clause 10.2.4 of HRM 20 of 2024 allowing SGB members to participate except educators who are candidates, clause 10.2.5 allows co-opted embers to participate (South African Schools Act, 1996, as amended and Act 32 of 2024 (Bela Act)) and that Mr. Magubane was appointed per clause 10.6 , not co-opted.

ANALYIS OF ARGUMENT:

20. Section 186 (2) (a) of the LRA states that “Unfair Labour Practice means any unfact act or omission that arises between an employer and employee involving- unfair conduct by the employer relating to the promotion…of an employee”.
21. In this case the applicant is a teacher who applied, was shortlisted and interviewed for a higher position of principal at Mawele High School.
22. In Pamplin v. Western Cape Education department (C1034/2015) [2018] ZALACTT the Constitutional court emphasized that whilst in unfair labour practice dispute the onus is on the employee to demonstrate that the failure to promote was unfair, the Employer, is in the same token, obliged to defend challenges on the substantive and procedural fairness, if it wishes to avoid a negative outcome. According to the court, there is an obligation on the employer to place evidence that it acted fairly and in good faith during the promotion exercise. In the absence of such evidence, it would be irrational and unreasonable to conclude that the Employer acted fairly, regardless of where the onus lies. The court also highlighted that Commissioners should warn parties about the adverse inference that might be drawn against them for failing to call witnesses.
23. The applicant’s claim of unfair Labour practice circled mainly around the points of Mr. Magubane being a SGB member whilst not from the Community; Interview questions stemming from the BELA act; Mr. Madondo’s erstwhile status and role in the interviews; the grievance letter/ outcome not signed by the late Mr. Ngcobo and alleged score manipulation.
24. Clause 10.6 of HRM 20 of 2024 sets out that “The SGB may appoint person who aren’t member of the governing body to the interview committee on grounds of expertise, but only a member of the governing body must chair the Interview Committee”.
25. The provisions of the Schools Act and Basic Education laws Amendment act was not disputed by the applicant when the first respondent’s witness delivered testimony. A school governing body may co-opt members from outside the community onto it. The Interview committee is then made up of amongst SGB members. Nothing illegal/ irregular thus happened in the composition of the Interview Committee in this recruitment process.
26. The BELA act was in effect at the time of the interviews and questions about it was thus appropriate. The work of the first respondent does not stop nor needed to be restarted post the passing on of the late grievance committee chairperson, Mr. Ngcobo. The first respondent was thus correct to make use of the information of the other grievance committee members and issue the grievance outcome. Mr. Madondo was furthermore a parent who had full rights to be elected onto the SGB and IC even though he was the former principal. No testimony was led by any other witness in aid of the averment of the applicant that the scores were manipulated (detailed discuss to lower the scores of one candidate) or any report given by any trade union that was an observer or even any of the Interview Committee members. I thus find that there was no manipulation of scores by the Interview Committee members out of fear of Mr. Buthelezi’s presence.
27. It is for all the above-mentioned reasons that I find that the applicant did not discharge his onus to prove that the first respondent committed a Unfair Labour practice against him.

AWARD

28. The first respondent, Department of Basic Education, Kwa-Zulu Natal, did not commit an Unfair Labour Practice relating to promotion against the applicant, Mr. Mzwenkosi Dennis Phungula. The applicant is not entitled to any relief.

Panelist: Macjon Maarman
ELRC338-25/ 26 KZN