IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT MTHATHA
IN THE ARBITRATION
BETWEEN
NHLANHLA MKHWANAZI APPLICANT
AND
DEPARTMENT OF EDUCATION – GP 1ST RESPONDENT
LULAMO PATO 2ND RESPONDENT

ARBITRATION AWARD

CASE NO. ELRC844-25/26GP
DATE/S OF HEARING 26 FEBRUARY AND 10 APRIL 2026
DATE AWARD SUBMITTED 29 APRIL 2026
NAME OF PANELIST BONGANI MTATI

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter was set down for arbitration in terms of section 191(5) of the Labour Relations Act 66 of 1995 (“LRA”) online on 26 February 2026 and 10 April 2026 at 09h00. Mr Lulamo Pato represented himself as the Second Respondent/incumbent.
2. The proceedings were electronically and manually recorded.

ISSUES TO BE DECIDED

3. I am required to determine whether an unfair labour practice relating to promotion was committed by the 1st Respondent. Further, depending on my finding, l am required to determine the appropriate relief.
   BACKGROUND OF THE DISPUTE
4. This is a promotion dispute involving post number JE25ED105 being the Head of Department (HOD) post for Nokuthula Special School advertised in circular number 2 of 2025 which was published on the 14 April 2025 and closed on the 9 May 2025.
5. After the post was advertised, recruitment process was done where candidates including the applicant and incumbent applied for the post. As a result of the recruitment process the 2nd Respondent was appointed as the Head of Department of Nokuthula Special School.
6. Applicant was shortlisted, but was not appointed as HOD of Nokuthula Special School.
7. The relief sought by Applicant is that the appointment of the 2nd Respondent be set aside and the post be re-advertised.
   SUMMARY OF EVIDENCE
   Applicant’s case
   Antony Nhlanhla Mkhwanazi
8. The Applicant testified that he was an educator at Nokuthula Special School since 2019 and had applied for the post of HOD and not appointed as incumbent was appointed in the post.
9. He stated that the incumbent had less experience compared to other candidates that applied for the post in question.
10. He submitted that there were additional experience requirements of severe intellectual disability (SID), autism spectrum disorder (ASD) and profound intellectual disability disorder (PID) which he viewed are of paramount importance to special schools and the incumbent has no such requirements of SID, ASD and PID.
11. He stated that the incumbent has main requirements of the post being three years’ experience, bachelor’s degree, Higher Diploma in Education, Advanced English, Chaplain’s Certificate and Computer Certificate.
12. He submitted that the incumbent has been appointed at Nokuthula Special School as post level one educator on the 1 January 2024 and promoted to the post of HOD with one and half years’ experience at special school as the three years’ experience was general requirement outside special school.
13. He testified during cross examination that the post requirements of the HOD post as per the advert was three years’ experience and further confirmed that the incumbent met the general requirements of the post as he had over twenty five years teaching experience at various schools, but according to him the incumbent did not meet the special school requirements as special schools are different in nature and character from normal schools, so incumbent had one and half years’ experience at special school. He confirmed during cross examination that there are educators with no SID, ASD and PID that are teaching at Nokuthula Special School.
14. He further confirmed during cross examination that the incumbent was appointed based on scoring high scores during interviews and him being the applicant did not make even to the top three of the interviewed candidates.
15. He finally did not dispute that the incumbent taught learners with special needs at other schools in the Eastern Cape.

Witness 2: Peter Montlante

16. He testified that he was working at Nokuthula Special School for thirty five years as an
    educator and knew the applicant and the incumbent as his colleagues.
17. He submitted that he applied for the post in question, but was issued with a regret letter which shocked him as he viewed himself qualified for the post, so concluded that there was unfairness and nepotism in the process of recruitment as he was not appointed in the HOD post.
18. He stated that based on the nature of their school being a special school, the incumbent was not qualified to be appointed as HOD in their school as he had one and half years’ experience at special school.
19. He submitted that the scores of the panel were not the true reflection of their performance as they were scored below the incumbent who had no experience to teach at special school as they had over twenty years teaching experience at special school.
20. He confirmed during cross examination that he was not scoring interviewed candidates, but was the panel who performed scoring interviewed candidates.
21. He did not dispute that the incumbent had experience to teach learners with special needs as incumbent taught them in other schools.
22. He further confirmed during cross examination that the required experience as per the advert was three years’ experience, which the incumbent had.
23. He disputed during cross examination that the incumbent had an experience in SID and PID, but confirmed that SID and PID were not requirements in the advert.
24. He confirmed that he was not aware that the incumbent was once a HOD and principal of the school before posted at Nokuthula Special School.
25. He finally confirmed that the post was open for every educator interested in the post and not confined at special schools or Nokuthula Special School.
    First Respondent’s Case.
    Witness 1. Chulu Nomathemba Nompumza.
26. She testified that she was the principal of Nokuthula Special School for thirteen years and knew the applicant and the incumbent as educators in her school under her supervision and during the recruitment process of the post in question was a resource person.
27. She stated that the post requirements were three years teaching experience and all shortlisted candidates met the minimum requirements of the post. There were seven candidates, but only
    six candidates managed to attend interviews.
28. She referred to the minutes of the interviews where panel members were six in the presence of SADTU and ATU teacher unions and the panel used a criterion of asking questions and allocating scores according to performance of each candidate as they were individually interviewed and allocated scores, so the incumbent had high scores of 461 and applicant had a score of 263 which placed him at number 4.
29. She submitted that after the interviews Mr Montlante lodged a complaint to the Department of Education and was advised to issue a regret letter to him before issuing the appointment letter to the incumbent as they were still to consult the incumbent to confirm whether he was taking the post of HOD or not, so she issued the regret letter on the 10 September 2025 and letter of appointment was issued on the 29 September 2025 and incumbent resumed his duties as HOD at Nokuthula Special School on 1 October 2025.
30. She submitted during cross examination that the panel was looking for a suitable candidate based on the advert and the incumbent met all those requirements and was further suitable for the post to be appointed at the special school as he fully qualified for the post and was recommended by the panel and School Governing Body (SGB) to be the HOD at Nokuthula Special School.
31. She stated during cross examination that she was guided by the policy which was fully complied with by the panel in recommending the incumbent as a suitable candidate for the post.
32. She disputed during cross examination that the incumbent had no experience in special schools as the incumbent acquired experience since his arrival at Nokuthula Special School.

Second Respondent’s case
Witness: Lulamo Pato

33. He testified that he was an educator at Nokuthula Special School as was appointed as HOD in the post in question and knew the applicant as his colleague at school.
34. He stated that he had proved himself that he was qualified for the post as he dealt with the learners with special needs in other schools he taught at previously.
35. He submitted that he had Bachelor of Arts degree, Advanced English certificate, Computer Literacy, Chaplain Certificate, Higher Diploma in Education and thirty years teaching experience.
36. He submitted that he applied for the post of HOD at Nokuthula Special School where he was appointed based on his qualifications and interview’s performance and disputed that he was appointed based on bribery and nepotism.
37. He stated during cross examination that SID and PID are categories of severity of impairment to the learners and not as qualifications as referred to by the applicant as conducted by therapists to learners.
38. He further stated that he had no knowledge of the panellists except educators that were panellists in the recruitment process of the post in question and had no influence over them to appoint him as HOD.
39. He submitted that he never taught at special school, but had dealt with learners with special needs at different schools he taught at, so knew what learners with special needs require at school and is able to deal with such learners with special needs at Nokuthula Special School.

ANALYSIS OF EVIDENCE AND ARGUMENT

40. It is trite that the employee bears an onus to prove that an unfair labour practice as defined in section 186(2)(a) of the Labour Relations Act (“LRA”) was committed by the Respondent. The Applicant had to convince the arbitrator that the conduct of the 1st Respondent amounted to an unfair labour practice as defined and distilled from applicable jurisprudence and as envisaged in the law.
41. I have considered the departmental guidelines for sifting, shortlisting, interview procedures.
42. I have also considered, the advert in question, Circular no.2 of 2025 with the post number JE25ED1051 for HOD at Nokuthula Special School. I have also considered the Employment of Educators Act 76 of 1998, Revised PAM document.
43. Section 186(2) (a) of the LRA reads as follows: “unfair labour practice any unfair act or that omission arises between an employer and the employee involving, unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about unfair dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee”.
44. I have to decide whether the 1st Respondent acted fairly or not, in not promoting Applicant for the position of the Head of Department at Nokuthula Special School.
45. It is important to note that there is no right to promotion, however there is a right to be given a fair opportunity for promotion. In the present case the Applicant was given an opportunity to compete for the post as he was shortlisted and invited for the interviews which he attended. The outcome of the interviews was not satisfactory to him as he was placed number four in the entire interview scores. He lodged an unfair labour practice dispute relating to promotion to the Council.
46. In NOONAN v SSSBC & OTHERS [2012] 33 ILJ 2597 [LAC], “the Court held that there was no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an employee an opportunity to compete for a post constitute an unfair labour practice. If the employee is not denied the opportunity of competing for a post, then the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by unacceptable reason”. In this case the applicant alleged that the incumbent had no required experience to be appointed as HOD at Nokuthula Special School, no transparency and accountability by the First Respondent and quarried service breaking of the incumbent.
47. Considering evidence of both parties, l find that the incumbent qualified to be appointed as HOD as he fulfilled the necessary requirements of the post of HOD as he has Bachelor’s degree, Higher Diploma in Education, over twenty years teaching experience, taught at Nokuthula Special School as post level one educator and in other schools where he taught learners with special needs as testified by the incumbent and corroborated by the principal who was resource person during recruitment period, applicant and further scored highest of all the candidates that was interviewed. .
48. I reject evidence that the incumbent had no experience with learners with special needs as he taught at Nokuthula Special School as post level one educator and other schools where he taught learners with special needs as testified by the incumbent and corroborated by the principal and curriculum vitae of the incumbent. I further find that the advert requirements were not requiring educators teaching at special schools, but all qualified educators with required qualifications were allowed to apply for the post in question, so l conclude that the post of HOD was open for all qualified educators to apply for the post.
49. Considering transparency and accountability of the First Respondent, l find that the First Respondent was transparent and accountable to all candidates that were interviewed about the process as they were served with the recruitment outcomes, given their regret letters, incumbent given appointment letter and their scores disclosed to them as per the evidence of the principal corroborated by the incumbent, Mr Montlante and the Applicant. There was no evidence tendered on the issue of service breaking of the incumbent, so there is no finding to such allegation.
50. In order to have a sustainable recruitment and selection process, the results of which could be regarded as fair in all respects, the First Respondent ought to make the appointment to promotional position on the basis of a credible process. So, I view that the panel and SGB
    performed their functions fairly in reaching to their decision of promotional appointment. In
    Aries 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 insubstantial reasons or based upon any wrong principle or in a biased manner.” In the case of Ndlovu v CCMA and others (2000) 21 ILJ 1653(LC) the Court stated that to determine whether the failure to promote the employee was unfair: can never suffice in relation to any such question for the complainant to say that he/she is qualified by experience, ability and technical qualifications such as university degree and the like for the post, that is merely the hurdle. The next hurdle is of equal if not greater importance. It is to show that the decision to appoint someone else to the post in preference to the complainant was unfair”. In this case l find that the applicant failed to prove that the promotion of the incumbent was unfair. .
51. The Applicant bears the onus to prove that the 1st Respondent committed an unfair labour practice relating to promotion to be entitled to the relief he sought. I therefore find that the Applicant failed to discharge that onus that the First Respondent committed unfair Labour Practice
52. I conclude that the First Respondent committed no unfair labour practice related to promotion in respect of the Applicant.
    AWARD
53. I find that the First Respondent committed no unfair labour practice relating to promotion as intended in section 186 (2) (a) of the LRA 66 of 1995 against the Applicant.
54. The Applicant is not entitled to the relief and his application is dismissed.

Signature:

Commissioner: Bongani Mtati
Sector: Basic Education