30 January 2026 -ELRC10 – 25/26GP

IN THE ELRC ARBITRATION
BETWEEN:

SADTU obo M TSHIKOTA “the Applicant”
and
GAUTENG DEPARTMENT OF EDUCATION “1st Respondent”
and
T NENE “2nd Respondent”

AWARD

Case Number: ELRC10 – 25/26GP
Last date of arbitration: 11 November 2025
Written arguments received on: 21 November 2025
Date of award: 16 January 2026 (extension granted)

COEN HAVENGA
Senior ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

Details of hearing and representation

The arbitration hearing was held over several days, the last day being on 11 November 2025 at the Tshwane South District Offices the Respondent in Pretoria. The parties requested opportunity to submit written closing arguments which were received on 21 November 2025. Due to the voluminous evidence presented and the year-end recess the Council granted extension for the submission of the award.
The Applicant is Mr Tshikota, M, represented by Mr Nomandindi, C, an official of SADTU. The 1st Respondent is the Gauteng Department of Education (“GDE”), represented by Mr Marakalla, J. The 2nd Respondent, being the incumbent in the disputed post, is Mr Nene, T, (“Nene”) represented by Mr Mokoena, D, an official of NAPTOSA.

Issue to be decided

The arbitration takes place in terms of the referral of the dispute by the Applicant. The parties concluded a pre-arbitration meeting, and the minutes thereof form part of the record of the arbitration hearing (marked as Bundle C).
The parties agreed on the following common cause issues:
4.1 The Applicant is a PL1 Educator employed by the GDE at Stanza Bopape Secondary School (hereinafter referred to as “the School”).
4.2 The advertised promotional post which the Applicant applied for was post number TS24ED1125, being the Head of Department (“HOD”) of Physical Science (“PS”), Computer Application Technology (“CAT”) and Technology (“Tech”) at the School.
4.3 Both the Applicant and Nene applied for the post, were shortlisted and interviewed.
4.4 Nene was the 1st recommended candidate on the recommendation list of the School Governing Body (“SGB”) to the GDE and was appointed in the post on 1 April 2025.
4.5 The Applicant was not one of the 3 recommended candidates on the recommendation list of the SGB to the GDE.
The following issues were specifically placed in dispute by the parties:
5.1 Whether Nene was suitably qualified for the post.
5.2 Whether the appointment of Nene was unfair.
The Applicant did not place the procedural fairness of the promotion of the 2nd Respondent in dispute.
The relief sought by the Applicant is for the appointment of Nene to be set aside, the process to be redone from the shortlisting stage. The Applicant also sought appointment in the post.
The GDE submitted Bundle R, Nene submitted Bundle B, and the Applicant submitted Bundle A.

Background to the dispute

The Applicant referred an unfair labour dispute relating to promotion at the School. The Applicant applied for the post was shortlisted, interviewed and not recommended as one of the 3 candidates on the list of recommendations of the SGB. Nene, the 1st Respondent, was the no. 1 recommended candidate on the list of recommendations of the SGB and was appointed in the post. The Applicant argued that Nene was not suitably qualified for the post, and that the Applicant should have been appointed instead.
The 1st Respondent argues that it followed all the processes to the letter of the law and appointed the best qualified and no. 1 recommended candidate. There was no irregularity in his appointment.

Summary of evidence

The proceedings have been recorded digitally, and a summary of the Respondent’s and Applicant’s witnesses’ evidence follows below. What follows is only a summary of evidence adduced at the arbitration and does not purport to be a verbatim transcription of all the testimony given. The digital record of the proceedings will reflect the complete testimony of the witnesses.

Applicant’s case

Mulimisi Victor Tshikota, the Applicant, testified under oath that he has 23 years’ experience in teaching PS, general science and English.
He referred to the advertisement of the post reflected in A1. The post requirements were Physical Science (PS), grade 10 – 12, which he had, Computer Application Technology (CAT), grade 10 – 12, which he had, and Technology (Tech), grade 8 – 9. He referred to his qualifications reflected in R99 – R123, which included a Diploma in Public Relations, a Diploma in BSIC English Grammar, a Diploma in Workplace Safety and Health, a Diploma in Change Management, his SACE certificate of registration, two Certificates of Attendance in recognition of successful completion of 80 hours OBE training which included training in Basic Computer Skills, a Higher Diploma in Education with the subjects Education, English, Mathematics, Physics and Chemistry, a Higher Diploma in Education with teaching method Physical Science and curriculum courses in Bible Education, Teaching Aids, and Computer Literacy and Education, a Matric Certificate, a participation Certificate for a Panning and Preparation Workshop, two 2007 Achievers Awards from the School for a 100% and 78.3% pass rate respectively in Physical Science, a Certificate of Participation for successful participation in the National Curriculum Statement in the FET grades 11 and 12, Certificates for participation in a Teacher Mentorship Programme in Matter of Material and Chemical Change grade 10, 11, and 12, and Rate of Reaction and Chemical Equilibrium grade 12, and Mechanics, a Certificate for participation in a short Geometry and Science Investigation Workshop, a Certificate for participation in an Electricity Workshop during Science Week 2006, a Certificate for participation in an Exam Setting and Practical Workshop, a Certificate for attending a UNISA In-service Training Programme on the Revised National Curriculum Statement grade 10, a Certificate for participating in a Laser Technology Workshop and a Certificate for participation in a Teacher Mentorship Programme 2004 – 2006.
The Applicant acted as HOD from 1 March 2021 to 31 May 2021.
During cross-examination the Applicant testified that he was given a fair opportunity to be interviewed for the post.
The Applicant testified that the advertised promotional HOD post which he was contesting required Physical Science (“PS”), Computer Application Technology (“CAT”) and Technology (“Tech”).
He conceded that he did not have any professional qualification in CAT. He conceded that he did not have a professional qualification in Tech.
He confirmed that the parties agreed in paragraph 3.2 of the pre-arbitration agreement that the arbitrator has to determine whether Nene was suitably qualified for the post and whether the appointment of Nene was unfair.
The Applicant testified that he had skills in CAT and Tech because he attended a workshop.
The Applicant testified that the appointment of Nene was unfair for the mere fact that the Applicant was not appointed while he had experience and qualifications in PS.
The Applicant testified that his experience reflected in R96, item 9, shows that his current position since 2013 was teaching English grade 10 and 11. He agreed that he did not teach PS for the last 12 years. The last time he taught PS was in 2012. He currently did not teach PS.
The Applicant agreed that the GDE did not contravene the provisions of Collective Agreement 1/2021: Recruitment and Placement Procedures for Educators at Schools. The Applicant was shortlisted and interviewed. The GDE gave him a fair opportunity to present himself to the members of the interview panel. He agreed that the interviews were performance based.
The Applicant agreed that the panel agreed on the selection criteria prior to the interview process.
The Applicant agreed that certificates of attendance or participation do not constitute a formal professional qualification.
The Applicant agreed that his total score in the interview was 85/48.3%, while Nene’s total score was 146/82.9%. He agreed that the appointed candidate, being the 2nd Respondent, Nene, had the top score of all 5 candidates that were interviewed.
The Applicant testified that he wanted to be appointed in the post. He then conceded that it was not possible for him to be appointed in the post given the scores at the interviews. He agreed that he had a fair opportunity to contest for the post and that the process was fair. He agreed that his performance at the interviews was reflected in his score, and that Nene had the highest score of all the candidates interviewed. He agreed that the panel was properly constituted.
The Applicant agreed that the suitability of a candidate is determined by what a school requires.
The Applicant testified that Nene was not qualified to teach the required subjects. The Applicant did agree that Nene’s current experience was that he was teaching CAT grade 10 – 11 and Tech grade 8 – 9 for the past 8 years since 2016, while the Applicant was teaching English for the past 12 years. He did not teach any CAT, Tech or PS for the past 12 years. The Applicant testified that he felt that the fact that he did not teach any of the required subjects for the past 12 years should not count against him.
Fanele Sibongi Mncwango, (“Mncwango”) testified under oath that he knew the Applicant as a comrade from SADTU. They are not teaching at the same school. Interviews are performance based. He was an observer at the process. The Applicant answered fairly compared to other candidates. The GDE did question the recommendation of Nene, and they told the GDE to go to the 2nd recommended candidate if they were not happy with Nene. The process went very well in line with the Departmental policies and agreements. All the candidates were treated fairly by the panel.
During cross-examination Mncwango testified that there was no grievance lodged because the process went well. Nene performed well during the interview process. He performed better than the Applicant.

1st Respondent’s case

Jeremiah Matemane (“Matemane”) testified under oath that he was a parent at the School. He was the SGB chairperson at the time. He referred to the interviews and the scores achieved by the candidates. It was not possible to appoint the Applicant as he was not one of the top three recommended candidates. Nene performed well during the interviews while the Applicant did not perform well. Nene was suitably qualified. His appointment was fair. He was more experienced.
During cross-examination Matemane testified that Nene was highly qualified. The Applicant lost touch with PS as he did not teach it for 12 years. They did not discard the Applicant’s previous experience in PS, because it got him invited for an interview. He however did not impress in the interview.
The GDE only returned the file in order to obtain a copy of Nene’s ID, SACE Certificate and FET Certificate. It was submitted originally but they submitted it again. Other candidates had to submit banking details.
Andries Nkadimeng (“Nkadimeng”), the GDE District Director for the Tshwane South District, testified under oath that he had the responsibility and authority to appoint educators. He appointed Nene in terms of the provisions of CA 1/2021. He did the necessary check and balances to make sure the recommended candidates met the profile of the advertised post. The Applicant was teaching English for the past 12 years, while Nene was currently teaching Tech and CAT. He had 2 of the 3 required subjects. The Applicant had only basic computer skills, while Nene had advanced computer skills. It made sense to consider more skills and current experience. He applied his mind, and it made sense to prefer the candidate with 2 subjects and current experience to the one with 1 subject and no current experience. A lot of changes and evolution happened in the PS in the 12 years which the Applicant taught only English. Nene had advanced qualifications compared to the basic qualification of the Applicant.
Nene was also the top recommended candidate of the SGB. It was not unfair to appoint Nene. He could not appoint the Applicant as he was not one of the 3 recommended candidates.
Nkadimeng confirmed his testimony under cross-examination.
Rishile Chauke (“Chauke”) testified under oath that she was the Tshwane South District Deputy Director for Transversal HR Services. They appointed Nene in terms of the provisions of CA 1/2021. She explained the process that was used in compliance with the provisions of C/A 1/2021.
She checked the subject experience. Nene had been teaching CAT and Tech for 8 years, while the Applicant taught English for the past 12 years. They had to look at recent and current experience and the upskilling that happened during that period. Nene had the most suitable experience. Nene had 60% of the requirements while the Applicant had only 30%.
The Applicant was not even one of the 3 recommended candidates of the SGB. Nene did qualify for the position in terms of the advert, subjects, experience, qualifications and performance in the interviews. Nene performed consistently well according to all the interview panellists, while the Applicant performed poorly. Nene’s appointment was fair. He was suitably qualified for the position.
During cross-examination Chauke testified that they did check the promotion file for all the relevant documentation. They had a person who taught CAT and Tech for the past 8 years and who is very upskilled, compared to one who had the subjects, but did not teach it for the past 12 years, and missed out on upskilling due to changes in the subject. She had no comment on the Applicant’s representative’s statement to her that they agreed that it was correct to use that criteria and that it appeared that the SGB used common sense.

2nd Respondent’s case

The 2nd Respondent did not present any evidence and closed his case.

Analysis of evidence and argument

The Applicant and Respondents submitted extensive written closing arguments which form part of the record and will not be repeated here. I have considered all the arguments, legal principles and case law referred to by the parties, together with the other evidence, oral and documentary, presented by the parties during the arbitration hearing as reflected in the record of the arbitration hearing. The fact that I did not refer to specific testimony in my summary or award does not mean that I did not consider it. Section 138(7)(a) of the LRA requires me to issue an award with brief reasons.
It is prudent to keep in mind that the parties specifically agreed in a pre-arbitration agreement that the arbitrator must determine whether Nene was suitably qualified for the post, and whether the appointment of Nene was unfair.
I therefore have to decide whether the 1st Respondent’s conduct constitutes an unfair labour practice related to the promotion of the Applicant as provided for in section 186(2)(a) of the LRA, and if so, what relief is to be awarded. It is not in dispute that the appointment would have constituted a promotion for the Applicant.
The procedural process of the appointment was not placed in dispute.
The relevant statutory provision to this matter is section 186(2)(a) of the LRA, which reads as follows:
“’Unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving –
(a) 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 the provision of benefits to an employee;”.
The Applicant alleges an unfair labour practice and must show that it falls within the provisions of the definition contained in section 186(2)(a) of the LRA above. The onus in an unfair labour practice disputes falls on the Applicant. The standard of proof applicable in hearings of this nature is identical to the civil standard – “the (applicant) must prove the case ……………on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1. The employee must prove not only the existence of the labour practice, if it is disputed, but also that it is unfair. The employer must actually have done something or refused to do something. Whether the employer has committed an unfair labour practice is an objective, factual enquiry.
The fairness required in the determination of an unfair labour practice must be fairness toward both employee and employer (see National Union of Metalworkers of SA v Vetsak Co-Operative Ltd & others 1996 (4) SA 577 (SCA)1 589C–D; National Education Health & Allied Workers Union v University of Cape Town & others (2003) 24 ILJ 95 (CC)2 paragraph 38).
The arbitration of the promotion dispute in casu entails a review of the employer’s actions. The Constitutional Court’s examination of the concept of fairness where it has been held that the arbitrator is not given the power to consider afresh what he would do but to decide whether what the employer did was fair, is relevant – see Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) JOL 20811 (CC). As a general rule employers may appoint or promote employees whom the employer deems the most appropriate. The decision to promote is the employer’s decision. The arbitrator’s decision is whether the employer came to that decision in a fair manner. The focus in unfair promotion disputes falls much more on the procedure followed by the employer – see Arries v CCMA & others (2006) 27 ILJ 2324 (LC); City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others (2013) 34 ILJ 1156 (LC).
I firstly have to decide whether there was unfair action by the 1st Respondent that resulted in the Applicant not being appointed in the post of HOD, and if so, whether the action falls within the definition of an unfair labour practice as defined in section 186(2) of the LRA.
It is common cause that the Applicant was not one of the 3 recommended candidates on the preference list of the SGB. The Applicant argues that he was the better qualified candidate, and that the 2nd Respondent was not suitably qualified for the post. The Applicant therefore should have been appointed in the post.
The arbitration of a promotion dispute does not entail a hearing de novo, but rather a review of the employer’s decision. In this respect I have regard to the Constitutional Court’s examination of the concept of fairness in the matter of Sidumo and Another v Rustenburg Platinum Mines and others (2007), where it has been held that the arbitrator is not given the power to consider afresh what he would do but to decide whether what the employer did was fair.
The Applicant believes that he was the best candidate for the post based on the belief that the post required Mathematics and Physical Science, and that he was better qualified than the 2nd Respondent in that respect.
Andries Nkadimeng, the GDE District Director for the Tshwane South District, testified under oath that he had the responsibility and authority to appoint educators. He testified that he appointed Nene in terms of the provisions of CA 1/2021. He did the necessary check and balances to make sure the recommended candidates met the profile of the advertised post. The Applicant was teaching English for the past 12 years, while Nene was currently teaching Tech and CAT. He had 2 of the 3 required subjects. The Applicant had only basic computer skills, while Nene had advanced computer skills. It made sense to consider more skills and current experience. He applied his mind, and it made sense to prefer the candidate with 2 subjects and current experience to the one with 1 subject and no current experience. A lot of changes and evolution happened in the PS in the 12 years which the Applicant taught only English. Nene had advanced qualifications compared to the basic qualification of the Applicant.
Nene was also the top recommended candidate of the SGB. It was not unfair to appoint Nene. He could not appoint the Applicant as he was not one of the 3 recommended candidates.
Rishile Chauke, the Tshwane South District Deputy Director for Transversal HR Services testified that she checked the subject experience. Nene had been teaching CAT and Tech for 8 years, while the Applicant taught English for the past 12 years. They had to look at recent and current experience and the upskilling that happened during that period. Nene had the most suitable experience. Nene had 60% of the requirements while the Applicant had only 30%. She testified that the Applicant was not even one of the 3 recommended candidates of the SGB. Nene did qualify for the position in terms of the advert, subjects, experience, qualifications and performance in the interviews. Nene performed consistently well according to all the interview panellists, while the Applicant performed poorly. Nene’s appointment was fair. He was suitably qualified for the position.
The evidence of Nkadimeng and Chauke went largely unchallenged.
The Applicant carries the burden to prove the existence of an ULP on a balance of probabilities. It is important to keep in mind the concessions made by the Applicant during cross-examination. He testified that he was given a fair opportunity to be interviewed for the post. He conceded that he did not have any professional qualification in CAT. He conceded that he did not have a professional qualification in Tech. He agreed that he did not teach PS for the last 12 years. The last time he taught PS was in 2012. He currently did not teach PS.
The Applicant agreed that the GDE did not contravene the provisions of Collective Agreement 1/2021: Recruitment and Placement Procedures for Educators at Schools. The Applicant was shortlisted and interviewed. The Applicant testified that the GDE gave him a fair opportunity to present himself to the members of the interview panel. He agreed that the interviews were performance based. The Applicant agreed that the panel agreed on the selection criteria prior to the interview process.
The Applicant agreed that his certificates of attendance or participation do not constitute a formal professional qualification. The Applicant agreed that his total score in the interview was 85/48.3%, while Nene’s total score was 146/82.9%. He agreed that the appointed candidate, being the 2nd Respondent, Nene, had the top score of all 5 candidates that were interviewed.
The Applicant testified that he wanted to be appointed in the post. He then conceded that it was not possible for him to be appointed in the post given the scores at the interviews. He agreed that he had a fair opportunity to contest for the post and that the process was fair. He agreed that his performance at the interviews was reflected in his score, and that Nene had the highest score of all the candidates interviewed. He agreed that the panel was properly constituted. The Applicant agreed that the suitability of a candidate is determined by what a school requires.
Although the Applicant testified that Nene was not qualified to teach the required subjects, he did agree that Nene’s current experience was that he was teaching CAT grade 10 – 11 and Tech grade 8 – 9 for the past 8 years since 2016, while the Applicant was teaching English for the past 12 years. He did not teach any CAT, Tech or PS for the past 12 years. I find on a balance of probabilities that Nene was the better candidate in terms of qualifications and experience and that he was suitably qualified for the position, hence his appointment was not unfair towards the Applicant.
The Applicant testified that he felt that the fact that he did not teach any of the required subjects for the past 12 years should not count against him. Mere unhappiness or a perception of unfairness does not establish unfair conduct – see Du Toit et al Labour Relations Law (5th ed) 488, as well as South African Municipal Workers Union obo Damon v Cape Metropolitan Council (1998) 20 ILJ 714 (CCMA). What is fair depends upon the circumstances of a particular case and essentially involves a value judgement. It is clear that the District Director responsible for the appointment properly applied his mind and did not act arbitrarily. The 2nd Respondent outscored the Applicant and it justified his recommendation as the no. 1 candidate for appointment.
As a legal concept substantive unfairness cannot exist in abstraction. Therefore, in order to prove substantive unfairness that would entitle the Applicant to substantive relief the Applicant also needs to establish a causal connection between the irregularity or unfairness and the failure to promote. To do that he needs to show that, but for the irregularity or unfairness, he would have been appointed to the post – see National Commissioner of the SA Police Service v Safety & Security Bargaining Council & others (2005) 26 ILJ 903 (LC); Woolworths (Pty) Ltd v Whitehead (2000) 21 ILJ 571 (LAC) para 24 per Zondo AJP; University of Cape Town v Auf der Heyde (2001) 22 ILJ 2647 (LAC) para 35; Minister of Safety and Security & others v Jansen NO (2004) 25 ILJ 708 (LC) para 27. This in any event needs to be proved in order to prove substantive unfairness and before any form of substantive relief such as appointment can be awarded – see KwaDukuza Municipality v SALGBC [2008] 11 BLLR 1057 (LC). This necessarily means that he must show that not only was he better qualified and suited for the post than a successful candidate who was appointed, but also that he was the best candidate for the position. I find that the Applicant did not show this.
In Provincial Administration Western Cape (Department of Health & Social Services) v Bikwani & others (2002) 23 ILJ 761 (LC) at paragraph [29]–[32] the Labour Court held that: “There is considerable judicial authority supporting the principle that courts and adjudicators will be reluctant, in the absence of good cause clearly shown, to interfere with the managerial prerogative of employers in the employment selection and appointment process. Courts should be careful not to intervene too readily in disputes regarding promotion and should regard this an area where managerial prerogatives should be respected unless bad faith or improper motive such as discrimination are present.”.
I find the decision by the 1st Respondent to appoint the 2nd Respondent to be justified in law. It is indeed so that the 1st Respondent retains the managerial prerogative to appoint or not. In the matter of Herbert and the Department of Home Affairs CCMA (1998) it was held that Goliath v Medscheme (Pty) Ltd (1996) 5 BLLR 603 (IC) provides the correct answer when dealing with decisions to promote where discrimination on prohibited grounds is not alleged, as in this case. It was stated there that “in the absence of gross unreasonableness which leads the court to draw an inference of mala fides, this court should be hesitant to interfere with the exercise of management’s discretion”. Le Roux, in his article entitled “Developments in individual labour law” in Current Labour Law 1996 page 46, reinforces this view.
I am of the opinion that the 1st Respondent had reasonable and fair grounds for not appointing the Applicant, and it could not be classified as defective reasoning on the part of the 1st Respondent.
Dissatisfaction or a general perception of unfairness is not sufficient. In casu where there is no obvious or glaring deviation from the prescribed process, I find no substance in the argument that the Applicant was treated unfairly. The 1st Respondent did not act irrationally, capriciously or arbitrarily.
The onus is on the Applicant to prove an unfair labour practice relating to promotion, and I am of the opinion that the Applicant did not discharge that onus. I am satisfied that the 1st Respondent did not commit a practice that would constitute unfair action that would fall within the definition of an unfair labour practice as provided for in section 186(2)(a) of the LRA. Accordingly, the Applicant’s claim must be dismissed.
The Applicant, M Tshikota, is not entitled to relief.