Panelist: Khuduga Tlale
Case Reference No.: ELRC39-26/27EC
Date of award: 28 September 2026

In the matter between:

Malerato Thabatha & 1 other Applicant

And

Department of Education – Eastern Cape Respondent

ARBITRATION AWARD

Details of hearing and representation

1. The arbitration hearing between Malerato Thabatha & 1 other (“applicants”), and Department of Education – Eastern Cape (“respondent”) was held on 15 September 2026 at the respondent offices in Maletswai. The applicants appeared in persons, and Ms. N Dyubeni, NAPTOSA Executive, represented them. Mr. G Sigojo, Circuit Manager, represented the respondent.
2. This proceeding was conducted in English, and was digitally, and manually recorded. The parties agreed to submit written heads of argument on Thursday, 17 September 2026.

Issues to be decided

3. The issue to be decided is whether the alleged failure of the respondent to pay the applicants’ pay progression, constituted a benefit in terms of section 186(2)(a) of the Labour Relations Act, as amended (“the Act”).
4. In determining the abovementioned, I must establish whether the respondent committed an unfair labour practice within the context of section 186(2)(a) of the Act.

Background to the issue

5. This is a dispute brought in terms of section 186(2)(a) of the Act relating to the provision of benefits to the employees, referred by the applicants to the Education Labour Relations Council (“the Council”) for arbitration. The applicants referred this dispute to the Council, where it remained unresolved at conciliation. A certificate of non-resolution was issued, and the dispute was then referred for an arbitration. The parties did not submit bundle of documents. Survey of Evidence THE APPLICANTS’ EVIDENCE First Witness: Ms. Malerato Eunice Thabatha
6. The witness testified under oath that she is employed by the respondent as an educator. During the 2023/24 financial year, she was displaced after she and Mr. Thandile Makebeni were prevented by parents from entering the school premises. They contacted the former Circuit Manager, Mr. Nkomana, who informed them that he was out of town. The matter was also reported to the South African Police Service, following which they returned home.
7. Later that day, Mr. Nkomana contacted them and advised them to remain at home for their safety. They accordingly remained at home and did not render services from January 2023 until July 2024. Their work performance was not assessed for the 2023/24 assessment period. After other educators received their pay progressions, they enquired about the status of their assessments and pay progressions. They subsequently lodged a grievance, but the respondent made promises which were not fulfilled. As a result, they did not receive their pay progression for the 2023/24 financial year.
8. Under cross-examination, she stated that she had no knowledge of the reasons why the parents prevented them from entering the school premises. She, however, confirmed that she and Mr. Makebeni had previously acted as whistle-blowers concerning the alleged misuse of the school nutrition programme. Second Witness: Mr. Thandile Makebeni
9. The witness testified that he is employed by the respondent as an educator. He had previously received pay progression but did not receive pay progression for the 2023/24 financial year. He testified that on 23 January 2023, he and Ms. Thabatha arrived at the school but were prevented from entering the school premises by parents. They reported the incident to the former Circuit Manager, Mr. Nkomana, who advised them to remain at home for their safety. They remained at home until they returned to the school in July 2024. He maintained that the respondent did not pay him his pay progression for the 2023/24 financial year.
10. Under cross-examination, the witness stated that the problems arose after he and Ms. Thabatha reported the alleged misuse of the school nutrition programme and other school resources. THE RESPONDENT’S EVIDENCE
11. The respondent’s representative informed the proceedings that the respondent would not lead any evidence. The representative was cautioned about the decision and its implications, but nevertheless maintained that the respondent would not call any witnesses or otherwise lead evidence.

Survey of Argument

THE APPLICANTS’ ARGUMENT

12. The applicant’s representative submitted that the performance evaluation and salary progression of school based educators was strictly governed by collective agreement 2 of 2020. Clause 5.3 of the quality management system framework as read with conjunction with the Personnel Management System states that whilst educators failed to be appraised are typically ineligible to pay progression. The operational disruption beyond educators control cannot be utilized by the respondent to penalize educators their financial benefit. Due to the community led displacement, it became factually and legally impossible for the applicants to undergo or complete their regular QMS evaluation for 2023/24.
13. The respondent should execute a manual override, implement the 2023/24 salary progression. The applicants proved the unfair conduct of the respondent. The applicants appeal to the Council to direct the respondent to correct this anomaly. The applicants are sitting at the incorrect notches due to 2023/24 gap, which emerged because of the non-implementation of QMS and salary progression. THE RESPONDENT’S ARGUMENT
14. The respondent’s representative submitted that it is common cause that the applicants were displaced from the school during the relevant period and were not assessed through the normal QMS process. The respondent understands and acknowledges the exceptional circumstances surrounding the applicants’ displacement. The applicants could not be reasonably being blamed for not being assessed during the period in question. They should be afforded an opportunity to have their performance considered through the applicable QMS process. The applicants need to be assessed, evaluated and outcomes issued whether they qualify for pay progression or not to avoid any precedence. This matter be referred to the respondent to make determination.

Analysis of Evidence and Arguments

Introduction

15. Section 186(2)(a) of 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.

16. An employee alleging an unfair labour practice bears the onus of establishing the facts necessary to sustain the claim. The applicants must therefore establish that the conduct complained of falls within the ambit of section 186(2)(a) of the Act and, where reliance is placed upon a benefit arising from a policy or practice, must place sufficient evidence before the proceedings to establish the existence and nature of that benefit.
17. In Apollo Tyres South Africa (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (DA 1/11) [2013] ZALAC 3; (2013) 34 ILJ 1120 (LAC); [2013] 5 BLLR 434 (LAC), the Labour Appeal Court held that the concept of a “benefit” in section 186(2)(a) is not limited to rights arising ex contractu or ex lege. It may include an existing advantage or privilege granted in terms of a policy or practice, including where the employer retains a discretion in relation to that benefit. The Court further held that the existence of discretion does not place the employer’s conduct beyond scrutiny; where a benefit exists and its provision is subject to discretion, the exercise of that discretion may be scrutinized for fairness.
18. The unfair labour practice jurisdiction, however, does not serve to create a benefit, form of remuneration or entitlement where none previously existed. The applicants must first establish the existence of the benefit or advantage relied upon. Only after the existence of such benefit has been established does the enquiry arise as to whether the respondent acted unfairly in relation to it. Whether the applicants established entitlement to pay progression?
19. The applicants’ claim in respect of the 2023/24 pay progression is founded primarily on their evidence that they were prevented by parents from entering the school premises and, following advice from the former Circuit Manager, remained at home and did not render services for an extended period. They further relied on the fact that they had previously received pay progression and that other educators received pay progression during the relevant period, whereas they did not.
20. The difficulty with the applicants’ case is that no policy, collective agreement, statutory instrument or other applicable document regulating pay progression was placed before the proceedings. In particular, there was no evidence establishing the criteria governing entitlement to pay progression, the relevance of performance assessment to such entitlement, or the position of an educator whose performance could not be assessed because the educator was not rendering services in the circumstances relied upon by the applicants.
21. The fact that the applicants had received pay progression in previous years constitutes relevant evidence that pay progression had previously been granted to them. However, previous receipt of pay progression does not, without more, establish an unconditional entitlement to pay progression in every subsequent assessment period. There was no evidence establishing that the circumstances prevailing during the previous assessment periods were materially similar to those applicable during the 2023/24 period.
22. The applicants’ own evidence was that they did not render services from January 2023 until July 2024 and that their work performance was not assessed for the relevant period. There was no evidence before the proceedings establishing that, notwithstanding the absence of a performance assessment and the circumstances in which the applicants were absent from the workplace, the respondent was obliged, in terms of an applicable policy, rule or established practice, to award them pay progression.
23. Similarly, the fact that other educators received pay progression does not, in the absence of evidence concerning the applicable criteria and the circumstances of those educators, establish that the applicants were similarly situated or that the respondent was obliged to award the applicants pay progression. The evidence does not establish the basis upon which the other educators received pay progression or demonstrate that their circumstances were materially comparable to those of the applicants.
24. It is also significant that the applicants did not establish through their evidence that the respondent had an established and consistent practice of awarding pay progression where an employee’s performance had not been assessed in circumstances comparable to those prevailing in the present matter. The applicants therefore established that they had previously received pay progression, but did not establish the rule, policy or established practice upon which their alleged entitlement to pay progression for 2023/24 was founded.
25. The respondent elected not to lead evidence. That decision does not, however, relieve the applicants of the onus resting upon them to establish the factual basis of their claim. The absence of respondent evidence cannot, in itself, establish an entitlement which the applicants have not proved. The proceedings must determine the applicants’ claim on the evidence actually placed before it. Having regard to the totality of the evidence, I accordingly find that the applicants failed to establish the existence of an entitlement to pay progression for the 2023/24 financial year in the particular circumstances of this matter. They therefore failed to establish that the respondent’s failure to award them pay progression constituted unfair conduct relating to an existing benefit as contemplated by section 186(2)(a) of the Act. Conclusion
26. Having considered the evidence and the arguments presented, I find that the applicants have failed to discharge the onus of establishing that the respondent committed an unfair labour practice relating to a benefit as contemplated in section 186(2)(a) of the Act.

Award

27. The applicants, Ms. Malerato Eunice Thabatha and Mr. Thandile Makebeni, have failed to prove that the respondent has committed an unfair labour practice in terms of Section 186(2)(a) of the Act, in relation to benefits.
28. The application is dismissed.

Signature:
Commissioner: Khuduga Tlale
Sector: Education