29 August 2025 – ELRC853-24/25LP

ARBITRATION AWARD

IN THE MATTER BETWEEN: ELRC853-24/25LP

SAOU obo Marianie Kleynhans APPLICANT

And

Education Department of Limpopo 1st RESPONDENT

Ms Koopedi DC 2nd RESPONDENT

AWARD
8.1. The applicant’s application is dismissed. …………………………………………………..
ELRC COMMISSSIONER: NICHOLUS SONO

DETAILS OF THE HEARING AND REPRESENTATION
1.1. The arbitration hearing into an alleged Unfair Labour Practice, referred to in terms of section 186(2) of the Labour Relations Act 66 of 1995, as amended was finalized at virtually on 14 August 2025.
1.2. Both parties attended the proceedings. The 1st respondent was represented by Portia Modipa, the 2nd respondent was represented by Makhubedu, union official of MEPTOSA, while the applicant was represented by Ankia Bester, legal advisor of SAOU.
1.3. The hearing was held in English and was digitally recorded.

ISSUES TO BE DECIDED
2.1. Whether the decision of the respondent not to appoint the applicant to the position of school deputy principal at Laerskool Steelpoort Primary School was procedurally and substantively fair in respect of:
a) whether or not the 2nd respondent was favored during the shortlisting and interviews processes,
b) whether or not the 2nd respondent received an unfair advantage due to favoritism
c) whether or not panel members who had conflict of interest towards the 2nd respondent did not recuse themselves from the proceedings
d) whether or not the 2nd respondent received more marks due to favoritism.
2.3. If the non-appointment of the applicant was procedurally and 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 is employed by the respondent as a HOD at Laerskool Steelpoort Primary School. She viewed her non-appointment on the position to be procedurally and substantively unfair and prayed to be appointed in the position of deputy principal as advertised.
3.2. The following issues are common cause to both parties:
a) The applicant applied for a deputy principal past at Laerskool Steelpoort Primary School.
b) The applicant was shortlisted and interviewed.
c) The applicant was ranked second, while the 2nd respondent was ranked first.
d) The 2nd respondent was appointed on 01 November 2024.
3.3. Prior to the commencement of the proceedings, the applicant submitted a bundle of documents marked “A1, and A2, while the 1st and 2nd respondents did not submit any documents.
3.4. The applicant closed her case after leading her own evidence and two witnesses, while the respondent closed its case after leading the one witness.
3.5. Both parties submitted written closing arguments on the agreed date and time.

SUMMARY OF EVIDENCE AND ARGUMENTS
4.1. The following is a summary of only relevant evidence submitted by both parties and which was taken into account in order to arrive at a decision in the matter.

THE APPLICANT’S CASE
5.1. The applicant, Marianie Kleynhans, testified that during the interviews, she was asked seven questions and three of those questions she had answered in detail. The chairperson, Mr Nkosi, was part of the interviews panel. Mr Nkosi’s wife and the 2nd respondent are best friends. Prior to the interviews, she received a phone call from a former colleague informing her that the chances of her being appointed to the position of deputy principal are non-existent as long Mr Nkosi was going to be part of interviews panel members. After the interviews, she immediately lodged a grievance with the circuit and the district offices, but the grievance was halted because by then the appointment was still pending. During the interviews, she was asked question 5 in Afrikaans, and she had answered it in Afrikaans. English and Afrikaans are preferred communication languages at the school. Some of the panel members had conflicts of interest but never recused themselves from the interviews. The scores are not the true reflection of what transpired during her interview. The 2nd respondent was being favored from the shortlisting stage because she scored the same as her. The 2nd respondent CV consisted of only one page while her CV consisted of five pages and explained everything in detail, including her managerial experiences.
5.2. Under cross-examination, the applicant testified that the shortlisting and interviews processes were procedurally unfair in that Tebogo Nkosi’s wife and the 2nd respondent are best friends, and he was supposed to have recused himself from the panel. Furthermore, other two panel members have personal relationships with the 2nd respondent. Apart from formal qualifications and experience, the way candidates answer questions during the interviews may be taken into consideration when making an appointment. On financial management some of the panel members scored her 2 despite giving a detailed answer. On nine pillars, she was scored 2 despite mentioning them all and explaining them in detail. Prior to or during the interviews, she was not in position of the interview’s answers, but according to her she answered all the questions in full and in detail. The 2nd respondent is a member of the school SMT for about 8 years. It is possible that during the interviews, the 2nd respondent has answered some of the questions extremely well but not all of them.
5.3. The employee’s first witness was Willem Ootshuizen. He testified that he is the deputy principal of Laerskool Steelpoort Primary School. The applicant and the 2nd respondent are part of the school’s SMT. He is part of the school SGB as a teachers’ representative. During the shortlisting and interviews processes, he was a panel member and observer respectively. During the shortlisting, the members agreed that one question would be asked in Afrikaans and that the candidates are expected to respond in Afrikaans. The shortlisting panel consisted of two groups. All candidates’ CVs scored 10 during the shortlisting. The 2nd respondent scored 100% despite her CV being incomplete, not in detail and consisting of one page. On the other hand, the applicant’s CV was detailed and covered everything that was required and expected. After the interviews, he attended the SGB meeting where the chairperson refused to accept the recommendation of the majority members that the applicant be ranked number 1. The chairperson insisted that the Department should be the one taking a decision. During the interviews, the 2nd respondent was scored a 4 on question 5, despite answering it in English. The applicant answered question 5 in Afrikaans, but she was scored a 3. Regarding the nine pillars, the applicant was given satisfactory score except for two panel members. Two SGB members, Mr Viesagie and Mr Hendrick Bossert, lodged a complaint with the district office. During the shortlisting and interviews, no panel member had recused himself/herself.
5.4. Under cross-examination, Willem Oosthuizen testified that during the shortlisting, the applicant’s CV was scored by his group. During the interviews, the panel agreed that the 2nd respondent may answer question 5 in English. The 2nd respondent was supposed to have been penalized for answering question 5 in English. Afrikaans and English are treated equally at the school. The 2nd respondent’s CV was missing a lot of information. During the shortlisting, the two groups never sit and determine whether the selected candidates met the minimum requirements. The 2nd respondent met the minimum requirements. The SGB took a decision to proceed with the interviews without receiving proper training. During the shortlisting and interviews, the two unions’ officials and department representative were present. The union officials and the department representative both signed the minutes of the two processes as a true reflection of what had transpired. During the interviews, he never witnessed any wrongdoing until the scores were released. The interviews panel members were fully aware that question 5 must be answered in Afrikaans since they were briefed prior to the commencement of the interviews.
5.5. The employee’s second witness was Hendrick Bossert. He testified that he is a member of the SGB representing the parents. As a deputy principal, Willem Oosthuizen attends SGB meetings in the absence of the principal. During the interviews, he was a panel member and Mr Erasmus was the department representative. The SGB members never received any training regarding interviews. During the interviews, the department representative was also not giving any guidance. The complaint was lodged with the circuit office after the SGB refused to rank the applicant as number 1. During the interviews, English and Afrikaans was used. All candidates, except the 2nd respondent, answered question 5 in Afrikaans. It was unfair not to penalize the 2nd respondent for not answering question 5 in Afrikaans. When question 5 was asked to the 2nd respondent, it appeared that she did not understand Afrikaans. Question 5 had to be translated into English before she responds. Despite answering question 5 in English, the 2nd respondent was scored a 4. The applicant answered question 5 in Afrikaans, but she was scored a 3. He scored the applicant a 3 on question 5. It is highly questionable that some panel members scored the applicant very high, but others scored her very low in one question.
5.6. Under cross-examination, Hendrick Bossert, testified that during the interviews, the 2nd respondent never indicated that she does not understand Afrikaans, but he assumed that she does not understand the language and immediately translate the question into English. No measures were put in place to panelize candidates who were going to answer question 5 in English. They proceeded with the interviews despite not being trained because the position had to be filled immediately. The 2nd respondent answered question 5 correctly but not in Afrikaans and he scored her a 4. The school is 90% English and 10% Afrikaans. He cannot be able to tell who exactly favored the 2nd respondent during the interviews or who was supposed to have recused himself/herself during the process.

THE RESPONDENT’S CASE
6.1. The respondent’s witness was Tebogo Matthews Nkosi. He testified that he is the chairperson of the SGB and during the interviews, he was one of the panel members. Two unions, SADTU and SAWU, also attended the interviews. During or after the interviews, the two unions never raised any objections. The whole interviews process was fair and free. All candidates were interviewed in English and Afrikaans. Prior to the commencement of the interviews, there was never an agreement that if a question was asked in Afrikaans, candidates are expected to respondent in Afrikaans. There was also never an agreement that candidates would be penalized if they respond in English to a question/s that was asked in Afrikaans. The 2nd respondent was asked a question in Afrikaans but responded in English. Candidates who responded in Afrikaans to a question asked to them in Afrikaans, was an advantage because it showed that they understand the language. The 2nd respondent and his former wife are colleagues at Laerskool Steelpoort Primary School, but he cannot confirm if they are also friends. At the time of the interviews, he and his wife had already divorced for almost one year. During the interviews, the applicant was sort of making presentation than responding directly to the questions asked. On the hand, the 2nd respondent was giving direct answers to the questions asked. As members of the SGB, they never received any training on how to conduct the interviews. On the day of the interviews, the Department representative and the two unions officials were present to guide the panel members. The medium of instruction at the school is English and Afrikaans and most of the leaners speaks English. There was an agreement that question 5 would be asked in Afrikaans. He scored the scored the 2nd respondent a five (05) on question 5 because she answered the question precisely. During the interviews, no panel member was supposed to have recused himself/herself because of any conflict of interest.
6.2. Under cross-examination, Tebogo Matthews Mkosi, testified that during the interviews, the school deputy principal, Willem Outhuizen, was the Department representative, while Hendrik Bossert was a panel member. During the shortlisting, all CVs of the candidates were processed by two groups. The first group checked if the candidate met all the requirements and the second group would validate. During the shortlisting, all candidates received the same scores. During the interviews, the applicant and the 2nd respondent were both scored 10 on leadership and management. Most of the information included in the applicant’s CV did not give her added advantage because it was not related to the advertised position. In terms of leadership and management, the 2nd respondent met all the requirements because she has been in a managerial position at the school for a very long time. Regarding question 6, the applicant answered the question extremely well, while the 2nd respondent was average. Some of the questions the 2nd respondent answered extremely well. When the SGB met to discuss the recommendations, no voting was conducted. If indeed the voting was conducted to determine the majority, the 2nd respondent was going to be recommended because the majority of the SGB members are not Afrikaans speaking people. The SGB only became aware of the complaint sent to the circuit office after the recommendations were forwarded to the Department for appointment. The complaint was lodged by Mr Viesagie, who was not part of the shortlisting and interviews processes. As the chairperson of the SGB, he recommended to the SGB members that the scores should be forwarded to the Department as recommended by the interviews panel members since members were not agreeing on who should be scored first. Some SG members suggested that the applicant be first, while others suggested that the 2nd respondent be the first.

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 her to the position of deputy principal was procedurally and 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 same level of skills.
7.3. In Arries v CCMA and others (2006) 27 ILJ 2324 (LC), the Court held 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. The applicant based her argument on disputed allegations that the 2nd respondent received unfair advantage because of favoritism during the shortlisting and interviews. The applicant further alleged that Mr Nkosi failed to recuse himself from the processes despite having a conflict of interest. It is common cause that all the candidates received the same score, 100%, during the shortlisting. Using the size of her CV against that of 2nd respondent as a benchmark, is not enough. Her first witness, Willem Oosthuizen, was part of the shortlisting panel but failed to submit any convincing evidence to suggest that the 2nd respondent was favored during the shortlisting by certain panel members. The fact that no objection was raised immediately after the shortlisting clearly shows that the outcomes were justified and probably agreed upon by the collective. The applicant’s second witness, Hendrick Bossert, was part of the interviews panel. Hendrick Bossert conceded during cross-examination that the 2nd respondent never indicated that she does not understand Afrikaans, but it was just his assumption. He further conceded that the 2nd respondent answered question 5 correctly and that he scored her 4. Hendrick Bossert scored the applicant 3 in question 5 despite her answering the question in Afrikaans. Mr Bossert’s scoring of the applicant low in question 5, collaborate Mr Nkosi’s version that the applicant was not answering questions directly but giving sort of presentation and that there was no agreement by panel members to penalize candidates who answered question 5 in English. Regarding the nine pillars question, nothing was submitted by the applicant to suggest that she performed better than the 2nd respondent or that the two panel members who scored her very low were against her and/or in favor of the 2nd respondent. Expecting Mr Nkosi to have recused himself from the proceedings under the circumstances, is just a classical example of clutching at straws. At the time of the shortlisting and interviews, Mr Nkosi and his former wife had already divorced for a period of one year. No evidence was submitted during the arbitration to suggest that Mr Nkosi, his former wife and the 2nd respondent continued to have personal relationship after the divorce.
7.5. If indeed the process to appoint the 2nd respondent was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner, the two unions present during the shortlisting and interviews, probably could have raised an objection during/after the shortlisting/interviews. The person who signed the complaint lodged with the circuit, never took part in both processes.
7.6. The SGB members decided to proceed with the shortlisting and interviews without receiving proper training. The decision to proceed was taken by the collective and it binds them. To shift the blame to the department representative and to use the lack of training as a procedural defect under the circumstances, does not assist the applicant case at all.
7.7. In Observatory Girls Primary School & another v Head of Dept: Dept of Education, province of Gauteng, Case No 02/15349, [2006] JOL 17802(w), the Court held that one does not go digging to find point to stymie the process of appointing suitable candidates to teaching positions.
7.7. The Collective Agreement No 3 of 2016 ELRC Guidelines-Promotion Arbitrations provides that an employee who refers a promotion dispute must do more than just demonstrate that he has the minimum advertised qualification and experience. He must allege and prove that the decision not to appoint him was unfair. Mere unhappiness or a perception of unfairness does not establish unfair conduct.
7.8. In the circumstances, I conclude that the applicant has failed to prove on balance of probabilities that the decision not to appoint her to the position of the school deputy principal was procedurally and substantively unfair.