Commissioner: VEESLA SONI
Case No: ELRC279-26/27KZN
Date of Award: 29 SEPTEMBER 2026

In the ARBITRATION between:

NAPTOSA OBO NATISHA BUDHAL APPLICANT
and

DHET MNAMBITHI TVET COLLEGE RESPONDENT

Union/Applicant’s representative: Ms Ishara Dhanook – NAPTOSA

Respondent’s representative: Mr Thabani Mhlongo
Respondent Department of TVET College

Details of the hearing and representation

1. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the “ELRC”) in terms of Section 186 (2) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for arbitration on 27 July 2026, via M S Teams. The matter was part heard and finalized on 23 September 2026.
2. The Applicant, Natisha Budhal, was represented by Ms Ishara Dhanook from NAPTOSA. The Respondent was represented by Mr. Thabani Mhlongo.
3. The Applicant was not present on 23 September 2026, due to medical and personal reasons. Both parties proceeded by way of argument as there was no dispute of fact.

Issue to be decided

4. The issue in dispute was whether the Respondent committed an unfair labour practice, in respect of benefits.

Background and survey of evidence

5. The Applicant was appointed in 2004 as an administration clerk. She was a senior lecturer at the time of the dispute. The Applicant’s salary was R 465 732 per annum. The Applicant claimed for her long service bonus, which was her 20-year service bonus. This was due in 2024. She was not paid her long service bonus, as per her initial appointment. She applied for a lecturing position and moved from administration to lecturing on 1 April 2005. The long service bonus either became due in 2024 or 2025, in her position as a lecturer. It was submitted other employees were paid their 20-year bonus while employed by the College Council. The migration to DBE took place after their appointment but their 20-year service was recognised.
6. The Respondent’s case was that the Applicant was appointed as an administration assistant from 1 September 2004 to 31 December 2004. There was an extension of the fixed term contract from 1 January 2005 to 28 February 2007. Thereafter there was a permanent appointment made on 1 March 2007.
7. The only issue for determination is whether the period served under the college council, be recognised in determining the long service bonus award. The Respondent did not oppose the claim by the Applicant and both parties requested for an award.

APPLICANT’S CASE

8. Ms Dhanook submitted the Applicant was appointed by Mnambithi TVET College, Ladysmith in 2004 and was employed by the College Council. In March 2007 she was converted to permanency and placed on persal. In 2024 she would have been eligible for her 20-year service bonus, as per DPSA Circular 4 of 2020. The document referred to the cash awards due to employees for recognition of their long service. It provided a benefit to an employee who was employed for 20 years. The Applicant was thus entitled to a certificate of recognition and a monetary cash award.
9. The Respondent was liable for payment to the Applicant for her 20-year service (long service). It was submitted the Respondent recognize the Applicant for her 20-year service and pay the monetary amount due to her, together with interest.

RESPONDENT’S CASE

10. Mr Mhlongo submitted a proposal was made to the Respondent for the long service benefit due to the Applicant, but the matter has to date not been settled. In terms of paragraph 5.1 of the DPSA Circular 4 of 2020, all national and provincial departments were directed to implement the cash awards system for long service recognition. The Applicant qualified for her 20-year continued service. The calculation was based on uninterrupted continuation of service in the public service framework. Mr. Mhlongo accepted that the Applicant qualified for the benefit.

ANALYSIS OF EVIDENCE

11. The matter was referred as an unfair Labour Practice: In terms of section 186 (2) (a) of the Labour Relations Act:
    ‘unfair labour practice means any unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relation to the promotion, demotion, probation ( excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee.’
12. The onus is on an employee to prove that she is entitled to relief in terms of this section. In order to succeed under this section, an applicant needs to prove at least three things, namely:
    • That the dispute which was referred does indeed concern conduct by the employer relating to “benefits” of the employee;
    • That there was unfair conduct on the part of the employer in that the benefit was not granted;
    • That the unfair conduct constituted an unfair labour practice and that she is entitled to the relief she seeks.

WAS ANY UNFAIR CONDUCT PROVED?
13. An employee who alleges that she is the victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities. The employee must prove not only the existence of the labour practice, but also that it is unfair.

14. By reference to Arries v CCMA & others (2006) 27 ILJ 2324 (LC) the court set out the test for fairness taking into account inter alia the following factors:
    • whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious consideration on the part of the employer or
    • whether the employer’s decision was arbitrary, or capricious, or unfair; or
    • whether the employer failed to apply its mind to the promotion of the employee; or
    • whether the employer’s decision not to promote was motivated by bad faith;
    • whether the employer’s decision not to promote it was discriminatory;
    • whether there were insubstantial reasons for the employer’s decision not to promote;
    • whether the employer’s decision not to promote was based upon a wrong principle;
    • whether the employer’s decision not to promote was taken in a biased manner.
15. That the overall test is one of fairness and as per Gcaba v Minister for Safety & Security & others (2010) 31 ILJ 296 (CC) the court found that that a failure to promote which had no direct consequences for other citizens was not administrative action subject to the review test of unreasonableness:
    “The wholesale adoption of review tests, and notions of ‘setting aside’ an employer’s decision and sending it back to the employer for decision anew, thus appears misplaced. Rather the yardstick of fairness to both parties…is in fact apposite. This does not mean that when a selection process is unreasonable, it should not be identified as such, but that such irrationality goes to the issue of fairness. The clear wording of s 186 (2) of the LRA supports such an approach…
    In this matter the fairness yardstick… has been used by the commissioner. He has found that in a situation where the applicant’s post (In which he had been acting for five years) remained vacant after his non-appointment, and where the city did not proffer any rationale for the pass mark in respect of the written assignment, nor explain the method of allocation of marks, it had been unfair not to appoint him.”
16. In applying the tests laid out in the above cases I now assess the evidence of the current matter to determine whether the decision of the employer measured the fairness yardstick. Fairness is to be applied to all unfair labour practice cases, including benefits. On 23 September 2026 the parties confirmed there was no dispute of fact and the matter proceeded by way of submissions. In this regard it must be noted the Respondent did not dispute the long service benefit was due, owing and payable to the Applicant.
17. The Applicant was appointed by Mnambithi TVET College, in Ladysmith in 2004 and was employed by the College Council. In March 2007 she became permanent. As such, it was common cause that in 2024 she was eligible for her 20-year service bonus, as per DPSA Circular 4 of 2020. Cash awards were due to employees in recognition for their long service with the Respondent. This was a benefit applicable to any employee employed for 20 years. The Applicant was thus entitled to a certificate of recognition and a monetary cash award.
18. It was accepted by Mr Mhlongo the Respondent was liable for payment to the Applicant for her 20-year service as set out in paragraph 5.1 of the DPSA Circular 4 of 2020. This clause directed all national and provincial departments to implement the cash awards system for long service recognition; however, it was not implemented for the Applicant. I am thus satisfied the Respondent committed an unfair labour practice when the benefit was not awarded to the Applicant. The Applicant qualified for 20-year continued service. The calculation was based on uninterrupted continuation of service in the public service framework which amounted to R 10 899-00.
19. FINDING: The facts in the matter were not in dispute. In this case the Respondent accepted liability. The evidence demonstrated the Applicant was treated with prejudice. The role of the arbitrator is to oversee that the employer did not act unfairly towards the candidate that was not afforded the same benefit. After having evaluated all the evidence, the Applicant demonstrated the conduct was arbitrary and it amounted to an unfair labour practice. She is thus entitled to payment for her 20-year service in the sum of R 10 899 -00 together with her certificate of long service.

Award
I make the following award:

20. The Respondent committed an unfair labour practice by not paying the Applicant her long service benefit in the sum of R 10 899-00.
21. The above amount is to be paid by the Respondent to the Applicant by 25 October 2026.
22. The Respondent is to furnish the Applicant her long service certificate by 25 October 2026.

ELRC Commissioner: VEESLA SONI
Date: 29 September 2026