27 October 2026 – ELRC372-26/27LP

ARBITRATION AWARD

IN THE MATTER BETWEEN: ELRC372-26/27LP

PSA OBO NHLENGANI PIET SIBASA APPLICANT

And

EDUCATION DEPARTMENT OF LIMPOPO 1st RESPONDENT

MPHO MUKHATHO 2nd RESPONDENT

DETAILS OF THE HEARING AND REPRESENTATION
1.1. The arbitration hearing into an alleged Unfair Labour Practice (Promotion), referred to in terms of section 186(2) of the Labour Relations Act 66 of 1995, as amended was heard and finalized at Waterberg District Offices (Modimolle) on 09 October 2026.
1.2. Both parties attended the proceedings. The 1st respondent was represented by Nthabiseng Rasebotsa, it’s Assistant Director, the 2nd respondent was represented by P.M. Kgobe, SADTU union official, while the applicant was represented by Patricia Matlhadisa, PSA union official.
1.3. The hearing was held in English and was digitally recorded.
ISSUES TO BE DECIDED
2.1. Whether or not the decision by the 1st respondent not to appoint the applicant to the position of Head of Department at Ulando Combined School was substantively fair.
2.2. If the decision not to appoint the applicant was substantively unfair, I must determine appropriate relief in terms of section 193 of the Labour Relations Act 66 of 1995, as amended.
BACKGROUND TO THE ISSUES
3.1. The applicant views the decision of the 1st respondent not to appoint him to the position of Head of Department to be substantively unfair and prayed that the appointment of the 2nd respondent be set aside and he be appointed.
3.2. The following issues are common cause to both parties:
a) The applicant and the 2nd respondent applied for the position, shortlisted and interviewed.
b) That the 2nd respondent was recommended as preferred candidate for appointment by the SGB.
c) The SGB changed the interview panel rankings and ranked the applicant at position four (04).
3.3. Prior to the commencement of the proceedings, the 1st respondent submitted a bundle of documents marked “R”, while the applicant and the 2nd respondent did not submit any documents.
3.4. The applicant closed his case after leading his own evidence, while the 1st respondent closed its case after leading the two witnesses. The 2nd respondent did not lead any evidence or call witnesses.
3.5. The applicant and the 1st respondent submitted written closing arguments.
SUMMARY OF EVIDENCE AND ARGUMENTS
4.1. The following is a summary of only relevant evidence submitted by both parties and which was considered to arrive at a decision in the matter.
THE APPLICANT’S CASE
5.1. The applicant, Nhlengani Piet Sibasa, testified that the interview panel ranked him at position one (01) and the 2nd respondent was ranked at position two (02). During the interviews, candidates are ranked according to their performance. After the interviews, the SGB must recommend three candidates to the Head of Department (HOD) for appointment. The HOD must appoint the SGB’s recommended candidate after going through the reasons provided by the SGB for not recommending the candidate who was scored the highest by the interview panel. He is currently an Acting Head of Department at Maope Secondary School. The circuit manager supported the SGB’s recommendation that the 2nd respondent be appointed. The 2nd respondent is a PL1 educator at Ulando Combine School. The SGB ranked him at number four (01), while the 2nd respondent was ranked at number one (01). The SGB’s recommendation did not comply with the Collective Agreement because they never interviewed the candidates. The SGB recommended the 2nd respondent because they have all his information at their disposal and they know him very well. The SGB’s reasons/motivation for deviating from the interviews’ panel ranking said nothing about the other candidates and was done and signed by the school principal of Ulando Combine School. The SGB never submitted any reasons why he was not recommended as a preferred candidate. The principal cannot make recommendation for appointment because he is not an ex officio of the SGB.
5.2. Under cross-examination, the applicant testified that his current position of Head of Department Assistant is not recognized by the respondent and is not a formal appointment but just an internal arrangement. The school principal of Maope Secondary School appointed him as a Departmental Head Assistant and not Acting Head of Department. The interview panel rank candidates in terms of their performance during the interviews, and they have no power to appoint. The SGB rank candidates in terms of preference. The SGB has submitted reasons why they have recommended the 2nd respondent for appointment as required by the Collective Agreement. In terms of the subject achievement, the 2nd respondent was doing better than him. When the SGB make their recommendation, they not only consider the interviews ranking but also consider the candidate’s experience and skills. The SGB’s recommendation letter must also be signed by the school principal before being submitted to the circuit office.
THE RESPONDENT’S CASE
6.1. The 1st respondent’s first witness was Takalane Soul. He testified that he is currently employed as a school principal of Ulando Combine School. He was part of the interviews panel as the Department representative. After the interviews, the SGB rank candidates in terms of preference. Besides the interviews panel rankings, the SGB considered the issue of performance and skills of the candidates. The SGB also perused the CV of the other candidates, and it was discovered that the applicant’s CV was contradictory. The 2nd respondent not only assists the circuit but also assists the whole district with Accounting Business Studies and Economics. The applicant’s school is also assisted by the 2nd respondent. As the school principal, he must sign off the SGB’s recommendation before being forwarded to the circuit.
6.2. Under cross-examination, Takalane Soul, testified that the 2nd respondent was selected as preferred candidate for appointment because of his subject performance. Because the school was under performing in Business Studies and Economics, the SGB wanted to appoint someone who will uplift the school’s results. During the SGB’s meeting, he was an ex officio and never influence their decision. Prior to the SGB’s recommendation, an investigation was done regarding the applicant. After the investigations, inconsistency was discovered regarding the applicant’s CV. The applicant never submitted proof that he was acting as Departmental Head. The letter that he submitted states that he was appointed as a Departmental Head Assistant by the school principal. The applicant was appointed to assist the Departmental Head. The recommendation letter was prepared by the SGB’s secretary, and he signed it because he was part of the meeting. The SGB also submitted reasons why the applicant was not recommended as a preferred candidate for appointment.
6.3. The respondent’s second witness was Alfred Masekela. He testified that he is currently employed by 1st respondent as Acting District Director. After the interviews and SGB’s recommendation, he would do quality checks. In terms of the Collective Agreement, SGB must submit reasons why they have deviated from the interviews panel ranking. He supported the SGB’s recommendation because the applicant misrepresented his application. The applicant indicated in his application that he was acting as the Departmental Head, whereas the appointment letter from his school principal stated that he was appointed as Departmental Head Assistant. Further, the applicant stated that he is a member of SMT, which is not correct. The SGB will rank candidates in terms of preference. The Head of Department may appoint any candidate recommended by the SGB.
6.4. Under cross-examination, Alfred Masekela, testified that the advertised position required specialization in Business Studies and Economics. The interviews panel is appointed by the SGB. He supported the SGB’s recommendation because of the reasons provided for the deviation. The interviews panel ranked the application position one (01). Although he was not part of the interviews, the documents that were before him assisted him to make an informed decision. To verify the information submitted by the applicant, he contacted his school principal. The 2nd respondent performance in Business Studies and Economics played a major role in his appointment. When making the appointment, he never considered the memo prepared by HRM.
ANALYSIS OF EVIDENCE AND ARGUMENTS
7.1. In this matter, the onus was on the applicant to prove on balance of probabilities that the decision not to appoint him to the position of Departmental Head was substantively unfair.
7.2. The Collective Agreement No 3 of 2016: ELRC Guidelines: Promotion Arbitrations, provides that where the employee complains that another employee was promoted, he or she must show that:
a) He or she has the necessary skills; and
b) The person who was promoted does not possess the same or similar level of skills.
7.3. Further, in Arries v CCMA and others (2006) 27 ILJ 2324 (LC), the Court held that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for unsubstantial reasons or based upon any wrong principle or in a biased manner.
7.4. In this matter, it is common cause that the applicant and the 2nd respondent met all the minimum requirements for the advertised position, and they were both shortlisted and interviewed. It is also common cause that the interviews panel ranked the applicant position one, while the SGB recommended the 2nd respondent as the first preferred candidate to be appointed.
7.5. Much of the applicant’s argument was based on the fact that the interviews panel ranked him in position one. The applicant conceded during cross-examination that the SGB is given powers by the Collective Agreement to rank candidates in order of preference after the interviews and that the rankings of the interviews panel is not a final decision to appoint. Therefore, the SGB’s ranking of candidates in order of preference was in line with what is provided in the Collective Agreement.
7.6. The applicant also bears the onus to proof on balance of probabilities that the appointed/promoted candidate does not possess the same or similar level of skills. The applicant alleged that the 2nd respondent was recommended by SGB for appointment because they have information about him and that they know him. However, the applicant never disputed the SGB’s reasons for recommending the 2nd respondent for appointment. The applicant also failed to submit any evidence to suggest that he is/was a better candidate than the 2nd respondent in terms of skills and performance. He conceded that the 2nd respondent was a better performer than him in Business Studies and Economics and not only for his school but for the entire District. The applicant also never disputed that the 2nd respondent also assists his school with Business Studies and Economics. The SGB’s recommendation of the 2nd respondent was supported by undisputed evidence and its decision was rational. I therefore accept the 1st respondent submission through it witnesses that the 2nd respondent was recommended and appointed to advance the best interest of kids.
7.6. In the circumstances, I conclude that the applicant has failed to prove on balance of probabilities that the decision not to appoint him was substantively unfair.
AWARD
8.1. The applicant’s application is dismissed.