30 January 2026 -ELRC1441-24/25GP

IN THE ELRC ARBITRATION BETWEEN:

NEHAWU obo TSHOKO, SL “the Applicant”

and

DEPARTMENT OF HIGHER EDUCATION & TRAINING (DHET) – SOUTH WEST TVET COLLEGE “the first Respondent”

and

MAVIS MATEBELE “the second Respondent”

ARBITRATION AWARD

Case Number: ELRC1441-24/25GP

Last date of arbitration: 26 November 2025

Last of written closing arguments received on: 4 December 2025

Date of award: 9 December 2025

Panelist: Leanne Joy Alexander
Details of hearing and representation

The arbitration took place on 26 September 2025 and 26 November 2025, via virtual proceedings; Microsoft Teams (“MS Teams”).
Mr Themba Mntameka, a Union Official, represented the Applicant. The Applicant, Mr SL Tshoko, was also in attendance. Ms Charity Ngobeni, a Union Official, was also in attendance.
Mr Shawn Carney, represented the Respondent.
The proceedings were conducted in English.
The proceedings were digitally recorded, and manual notes were also taken.
Both parties were afforded the opportunity to submit their closing arguments in writing by close of business on 4 December 2025.

Issue to be decided

I must decide whether the Respondent committed an unfair labour practice as contemplated in Section 186(2)(a) of the Labour Relations Act, Act 66 of 1995 (“LRA”) in that it did not appoint the Applicant in the position of Senior English Lecturer (PL2).

Background to the dispute

The parties agreed that the arbitrator is to determine whether the Respondent committed an unfair labour practice related to a promotion as provided for in section 186(2)(a) of the LRA, and if so, what relief is to be awarded.
The Respondent tendered a bundle of documents marked “R” and it was paginated. The Applicant tendered a bundle of documents marked as “A” and it was paginated.
It was common cause that the Applicant was employed as an English Lecturer (PL1) at South West College (Roodepoort Campus). He was employed on 10 January 2012 and earned R32, 750.00 per month and was still in the Respondent’s employ. He worked 5 days per week, at an average of 8 hours per day.
The relief sought by the Applicant was to be appointed in the position of PL2 Senior English Lecturer with retrospective reinstatement.
Since the dispute pertained to an unfair labour practice, the Applicant bore the onus and had a duty to begin.

Point in limine

Second Respondent submissions

Mr Mashudu, the second Respondent’s legal representative, submitted that whilst the matter pertained to an unfair labour practice, the second Respondent did not have an interest in this matter, unless she would be subpoenaed.
Therefore, the second Respondent, wished to withdraw from these proceedings, furthermore the second Respondent should not have been joined in the first place.
First Respondent submissions
The first Respondent did not have any objection to the second Respondent’s withdrawal on record.
Applicant’s submissions
The Applicant did not have any objection and wished to proceed.

Ruling

Even though, the second Respondent, Ms Mavis Matebele, was joined to the proceedings as she had a substantial interest in the matter. I take note that the second Respondent, elected to withdraw on her own accord, thus the matter would proceed in her absence.

Summary of evidence

The proceedings have been recorded digitally, what follows is a summary of the Applicant’s and Respondent’s witnesses’ evidence and the pertinent points I need to determine.

Applicant’s case

Mr Siyabulela Lee Tshoko (“Tshoko”), the Applicant, testified under oath that he was a PL1 English Lecturer. He was interviewed for the position of Senior English Lecturer (PL2) on 1 December 2023. He concluded that he was recommended for the position.
He confidently acted in the role for a period of 3 (three) years from June 2022 until January 2025, at the Roodepoort campus. He also received awards for 2 (two) consecutive years for the best senior lecturer (pass rate percentage).
When he applied for the position, he was still in the process in applying at the Department of Justice, for expungement for the charge that he had from 1993. He applied for expungement during November 2023, and it was finalized during August/September 2024.
He was informed on 8 August 2024, that he required an expungement letter. However, he received a Police Clearance on 16 September 2024, which showed the traffic offence that he received in Wynberg.
In terms of the Police Clearance that he received on 16 September 2024, it only showed a traffic offence from 2017. This had no bearing in terms of performing his duties, furthermore it was not relevant in terms of performing his work as a Senior English Lecturer.
Previously, the college migrated from the college to the Department of Higher Education and Training, and they faced many challenges with colleagues who had criminal records.
On 9 December 2024, he received a regret letter, and he requested the MIE reports, however, it was not forthcoming from the Respondent.
He submitted documentary evidence of a grievance, that he lodged on 21 January 2025, however, he did not receive any response from labour. Subsequently, he escalated the matter to the Council.
In terms of the offence that he committed, he was not afforded an opportunity to provide a motivational letter.
He was a Shop Steward, previously he applied for a Senior Lecturer post at Roodepoort West College, when he acted during 2022, however, he was not shortlisted. Subsequently, he lodged a grievance, and the post had to re-advertised, therefore, there was a pattern of unfair treatment.
The successful candidate, Ms Mavis Nonxeba Matebele, was appointed on 30 April 2025. He was deprived of a promotional opportunity and career advancement. Furthermore, he was denied financial benefits and earnings, whereas, he could have contributed to the department and the institution.
He sought to be appointed in the position, as his criminal record had no bearing on the functions and duties in the role. He also sought compensation in terms of the psychological stress and depression that he suffered due to this event.
When he acted in the role, he also received the “best mentor” award. His performance was consistent for 2 (two) consecutive years, having considered his undergraduate and postgraduate qualifications. He believed that he was the most suitable candidate for the role.
Under cross-examination Tshoko testified that he did not send an expungement letter to HR. He informed HR that he was still waiting for the expungement letter, however, he received the Police Clearance on 16 September 2024. The offence occurred during 2017, and it was a 10 (ten) year requirement period.
It was put to the Applicant that without the expungement letter he could not be appointed in a promotional post.
The Applicant submitted that he was unaware of that, however, in terms of the Employment Equality Act, 55 of 1998, it could not be considered due to arbitrary grounds.
It was put to the Applicant that the successful person who was appointed in the post also supplied an expungement letter.
The Applicant submitted that he was unaware of such.
Under cross-examination Tshoko testified that he applied for the expungement letter, as he had a case from 2017, the Police informed him that he could obtain a Police Clearance, due to the 10 (ten) year period from 2017, as a result, he received a Polie Clearance.
It was put to the Applicant that HR would testify that the reason why he was not appointed, was due to him not supplying an expungement letter; a Police Clearance was not sufficient.
The Applicant submitted that he was unaware of any policy governing such.
Under cross-examination Tshoko testified that he made follow-ups with HR telephonically.
During re-examination, Tshoko explained that the purpose of a Police Clearance, was to see whether an employee charge/offence had any adverse effects for example a fraud offence (within a financial role). He supplied the Respondent with a Police Clearance, and it indicated the offence from 2017. Furthermore, he was unaware that the successful candidate had a criminal record.
Mr Ripa Nkosikhona (“Nkosikhona”), the witness, testified under oath that he was the Senior Lecturer (Business Studies). He was employed since 2020, at the time of his appointment he had a traffic offence, however, he was still appointed.
He was uncertain if the Respondent was aware of the offence, however, it did not prevent him from being appointed.
The traffic offence that he had, did not link to his position and his ability to perform in his role.
The Respondent did not ask him to provide them with an expungement letter, furthermore, he was not aware of any policy or practice where they required same.
He was aware that the Applicant applied for the role of Senior English Lecturer (PL2) and the Applicant previously acted in the role, however, he was unaware as to why he was not appointed.
A recruitment process should be based on merits, qualifications and fairness, rather than personal circumstances.
Under cross-examination, Nkosikhona testified that he was appointed during 2020, previously he was a Lecturer at the same campus.
It was put to the witness that the reason why he was appointed, was due to a pending drinking and driving matter and the MIE report reflected that he had not been found guilty as yet, therefore he could be appointed in a promotional post. Thus, an expungement letter would not be required.
Nkosikhona responded that he was unaware of that.
It was put to the witness that HR would testify that his appointment was different to that of the Applicant’s case, as his matter had not concluded as yet.
Nkosikhona responded that he was following what he said.
During re-examination, Nkosikhona explained that he was unaware of the MIE reports. He attended an interview for the Head of Department (“HOD”) role; however, he received no further communication in that regard.
Note: The proceedings then adjourned due to the Applicant’s third witness, Mr Thando Khuso, had a family emergency; in addition, he could not locate the documents that were subpoenaed. Furthermore, his camera could not be shown on the screen, which was problematic for the proceedings. Thus, the matter stood down for the day.
Point in limine (26 November 2025)
Applicant’s submissions
The Applicant’s representative, Mr Themba Mntameka, submitted that as per the subpoena, they requested the recordings/short listings from the interview process and the MIE reports (for the Applicant and the appointed person).
They would also apply for the disclosure of documentation in terms of the appointed person’s MIE report.
First Respondent submissions
The first Respondent’s representative, Mr Carney, indicated that he had been on sick leave. Furthermore, they would not have an objection to share the appointed person’s MIE report.
Subsequently, Mr Thando Khuse, indicated that he was in possession of the documentation and would send same to the Applicant’s representative including the interview recordings (which were approximately 3 (three) hours long).

Ruling

The second Respondent, was afforded 30 (thirty) minutes to send the required documentation and the recordings to the Applicant and/or his representative.
The Applicant’s representative, Mr Themba Mntameka, confirmed that he received all the requested documentation and abandoned the request in terms of the recordings from the interview process.
The matter subsequently proceeded.
Mr Thando Khuse (“Khuse”), the witness, testified under oath that he was the Assistant Director (HR).
He confirmed that the Applicant was interviewed, he obtained a high score and was recommended for appointment for the Senior English Lecturer position.
He was unaware as to who made the final decision not to appoint the Applicant; it was not unusual, as such decisions came from the Department of Higher Education and Training. He was informed by a senior person at the Department of Higher Education and Training, verbally, that the Applicant’s application would be withdrawn.
In terms of the Applicant’s MIE report, he was not privy to that, nor had he seen that. Furthermore, he was not aware of other individuals who had criminal offences.
A traffic offence would not have any correlation in terms of the Senior English Lecturer’s role.
After the conclusion of the interviews during December 2023, the Applicant was asked to provide an expungement letter, however, he only provided a Police Clearance, which the Respondent disputed. The Respondent disputed the Police Clearance letter, as anyone could have supplied that. Hence, they required an expungement letter and not a Police Clearance letter.
In terms of the grievance that the Applicant submitted, he was unaware of such or whether it had been responded to, as grievances were directed to the labour department, which was a separate unit.
The Respondent requested the expungement letter, and he did not request it in his own capacity. There was not a policy in place, however, the law required a criminal record verification.
He was unaware as to whether the expungement letter or the Police Clearance came first, however, he confirmed that the Police Clearance was the latest document.
Under cross-examination, Khuse testified that after the interviews, the candidates were requested to submit their documentation. They were sent to MIE for verifications and if the MIE came back as “non-responsive” the person was asked to provide an expungement letter.
Under cross-examination, Khuse testified that it was the Respondent’s policy to provide the expungement letter; if MIE flagged a possible criminal record, they would need to delve deeper in that regard.
Under cross-examination, Khuse testified that a Police Clearance and an expungement letter were completely two different documents. A person would not be appointed with only a Police Clearance; you would need to provide an expungement letter.
Under cross-examination, Khuse testified that Ms Mavis Matebele, was appointed in the position as she provided the Police Clearance and the expungement letter. All candidates must provide an expungement letter if a criminal record was detected. Both documents were relevant, without the submission of an expungement letter the person would not be appointed.
During re-examination, Khuse explained that the Respondent’s policy was silent on expungements. However, it was not irregular to request an expungement letter, otherwise the government and employers would employ persons with criminal records. It was standard practice to request such, based on the MIE report.
During re-examination, Khuse explained that if the second person provided an expungement letter the Applicant could have also provided the same. The expungement letter would indicate that the criminal record had been expunged. The Applicant was afforded time from January to August 2024 to provide the letter.

Respondents’ case

Ms Lebohang Masango (“Masango”) testified under oath that she was the HR Clerk (Recruitment). In this particular case, they short-listed 8 (eight) candidates, however only 7 (seven) persons arrived for the interview. The interview was chaired by Ms Lekoloale, and the panel members were Ms Gonyela and Mr Zondi; she attended in the capacity of the scribe. The panel recommended the Applicant and Ms Mavis Matebele, was the second-best candidate.
The Applicant submitted a Police Clearance document, however, the Respondent declined it, as the document could have been provided by a friend. They informed the Applicant to provide an expungement letter from the Department of Justice. There was a difference between an expungement letter and a Police Clearance letter.
The Respondent was directed by the policy. The second candidate also had a criminal record, and they requested her to submit an expungement letter. Her MIE report came back, and it indicated no criminal record.
The second candidate, Ms Mavis Matebele, case was different as her case exceeded 5 (five) years. The Applicant was afforded time to provide an expungement letter.
In terms of the Applicant’s appointment, his appointment was declined. She received a verbal instruction from Mr Themba Mahlangu, the Assistant Director (Recruitment) in this regard.
The request for an expungement letter was common practice within the recruitment department. If a person had a criminal record they would need to provide an expungement letter. A person could not be appointed without an expungement letter.
The Applicant was afforded 6 (six) months to provide the expungement letter; however, he kept on saying that he would submit it. She was unaware of the grievance that the Applicant submitted.
Under cross-examination, Masango testified that she was informed verbally by Mr Themba Mahlangu, the Assistant Director (Recruitment), that the Applicant must provide the expungement letter. There was a lot of corruption in the country and perhaps a person could obtain a Police Clearance document from a friend.
Under cross-examination, Masango testified that they were guided by their policies, however, there was nothing mentioned regarding expungements in their policies.
Under cross-examination, Masango testified that on the Applicant’s MIE report, it indicated an offence on 3 November 2017, the clearance certificate was during March 2024, months later. It was a criminal record as there was a case number with a sentence.
Under cross-examination, Masango testified that an expungement letter came first. She would first request fingerprints as the MIE results would indicate as to whether the person had a case or not. Hence, they would ask for qualifications first and the criminal checks would be performed at a later stage.
During re-examination, Masango explained that it was an instruction from her senior to request an expungement letter from the Applicant. It was common practice; if no expungement letter was provided the person would not be appointed.

Analysis of evidence

The parties submitted written closing arguments which forms part of the record and will not be repeated here. I have considered all the arguments, legal principles, Codes of Good Practice and other principles of law referred to by the parties.
Section 186(2)(a) of the LRA provides that:
“unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals relating to probation) or training of an employee or relating to the provision of benefits to an employee”.
The Applicant claims that the Respondent committed an unfair labour practice relating to him not being appointed in the position that he applied for – Senior English Lecturer (PL2).
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.
Mere unhappiness or a perception of unfairness does not establish unfair conduct – see Du Toit et al Labour Relations Law (5th ed) 488. What is fair depends upon the circumstances of a particular case and essentially involves a value judgement. 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) 589C–D; National Education Health & Allied Workers Union v University of Cape Town & others (2003) 24 ILJ 95 (CC) paragraph 38).
The following were common cause:

The Applicant attended an interview on 1 December 2023 for the PL2 vacancy (Senior English Lecturer – PL2);
On 9 August 2024, he received communication to submit an expungement letter regarding the vacant post;
The MIE verification report indicated that an assault occurred during 1993, however, he already applied for expungement;
He also had a charge for a traffic offence during 2017;
On 29 November 2024, he received an invitation from HR to attend a MIE vetting process;
On 9 December 2024, he received a regret letter from HR, advising him that the panel did not recommend him, due to his criminal record;
He requested the MIE record; however, no information was furnished to him, and
On 21 January 2025, he lodged a grievance regarding the alleged unfair labour practice and discrimination, however, it was not addressed and the Union escalated the matter to the ELRC.

It was furthermore common cause that the Applicant did not submit an expungement letter as requested by the Respondent.
It was furthermore common cause that the Applicant was rated the highest scoring candidate during the interview process, and the second Respondent was rated the second-best candidate.
With the evidence before me, in the Applicant’s MIE record indicated the following:

2017-11-03 (traffic offence – Wynberg)
In the Police Clearance certificate, it indicated the following for the Applicant:
2017-11-03 (traffic offence – Wynberg)
In the criminal record system, it indicated the following for the Applicant:
1993-05-26 (assault offence)
2017-11-03 (traffic offence – Wynberg)

With the evidence before me, the Applicant submitted a Police Clearance Certificate, dated 2024-09-16, wherein it indicated “this is to certify that no convictions have been recorded for any crime in the Republic of South Africa…”. It furthermore highlighted the road traffic offence on 2017-11-03.
Whilst it was not placed in dispute, the Applicant indicated in the reference checks regarding previous criminal records/charges he indicated that he “had it expunged”. Furthermore, it was not disputed that the second Respondent also had a previous criminal record, however she subsequently provided an expungement letter.
In the case of Aries v CCMA and others (2006) 27 ILJ 2324 (LC) the Court held that “the Employee can only succeed in having the exercise of discretion of an Employer’s interfered with if it demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle in a biased manner”.
In the case of City of Cape Town v SAMWU obo Sylvester and others (2013) 34 ILJ 1156 (LC); [2013] 3 BLLR 267 (LC) (handed down on 7 September 2012) the Court held that “with reference to the Aries case (supra), that the overall test is one of fairness. In deciding whether the Employer acted fairly or refusing to promote the Employee it is relevant to consider the following:
(a) Whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious consideration on the part of the Employer; or
(b) Whether the Employer’s decision was arbitrary, or capricious, or unfair; or
(c) Whether the Employer failed to apply its mind to the promotion of the Employee; or
(d) Whether the Employer’s decision not to promote was motivated by bad faith; or
(e) Whether the Employer’s decision not to promote was discriminatory; or
(f) Whether there were insubstantial reasons for the Employer’s decision not to promote; or
(g) Whether the Employer’s decision not to promote was based upon a wrong principle; and
(h) Whether the Employer’s decision not to promote was taken in a biased manner”.
In the case of Apollo Tyres SA (Pty) Ltd v CCMA and Others (DA1/11) [2013] ZALAC 3; [2013] 5 BLLR 434 (LAC); (2013) 34 ILJ 1120 (LAC) (21 February 2013), the Labour Appeal Court quoted from Du Toit et al 2, The Labour Relations Act of 1995, 2nd Edition at page 443, with approval on the meaning given for the term/word “unfairness” as follows: “unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended”.
In the case of Hlope v Head of Department: Department of Education KZN and Others (D755/2021) [2024] ZALCD 4; (2024) 45 ILJ 805 (LC) (18 January 2024) the Court held that “the fact that ‘promotion’ is covered by section 186(2) of the LRA does not, by any means, create a right to promotion. It only implies that an employee (i.e. Applicant for a position) has a right to be fairly considered for a promotion or appointment. In fact, it fundamentally confers a legal right to fair labour practice with respect to appointments and promotions of employees or/officials, which is a right to be treated fairly in the process of promotions or appointments”.
Much evidence was led, and it was the Applicant’s case that he was discriminated against as a criminal record would be an “arbitrary ground” as it was not related to the “inherent requirements of the job”. I must indicate that the dispute before was an unfair labour practice dispute in terms of a promotion and not a discrimination dispute (as indicated in the party’s pre-arbitration minutes).
It was common cause that the Applicant acted in the role for a period of 3 (three) years successfully so, even obtaining awards based on his performance. However, even if a person acts in a role, it does not necessarily guarantee that the person would be appointed in the said position.
It was furthermore not disputed that the Respondent did not have the expungement request outlined in a policy, directive or the like. However, the Respondent was consistent in the request for an expungement letter should criminal activity be flagged on a MIE report. It was common practice or might I add, rather “common sense” that an expungement letter would be required if a criminal offence was flagged on a MIE/verification report.
With the evidence before me, the Applicant had a previous criminal offence being a traffic offence from 2017. It was not disputed that the Respondent waited for approximately 8 (eight) months for the Applicant to provide an expungement letter, however nothing was forthcoming in this regard.
Much evidence was led that the Applicant provided a Police Clearance document, which still flagged an offence, such that it would suffice. However, I am not convinced by this argument; as an expungement letter would be required from the Department of Justice. Such that “expungement” is defined as a “process by which a criminal record of a convicted offender is expunged from the criminal database of the Criminal Record Centre of the South African Police Service”. In these circumstances, the Applicant still had an active criminal record/offence which was flagged on the MIE report.
The Respondent was consistent in the application thereof, as the second Respondent was requested for the same documentation (expungement letter) and subsequently she provided such. Furthermore, the second Respondent’s MIE report indicated “negative – no previous convictions” on the MIE report, dated 28 November 2024. It was also not disputed that Mr Ripa Nkosikhona, case was distinguishable, as he had not been convicted as yet; such that he was not required to provide an expungement letter.
Consequently, with the evidence before me I cannot find that the Respondent acted unfairly, capriciously or mala fide. The Respondent had reasonable and fair grounds for not appointing the Applicant, and it could not be classified as mala fide reasoning. Furthermore, there was no obvious or glaring deviation from the prescribed process that was followed, I therefore find that the Applicant was not unfairly treated.
Having considered the submissions and bearing in mind that the onus rests on the Applicant to prove an unfair labour practice. It is therefore my finding that the Respondent did not commit a practice that would constitute unfair action that would fall within the definition of an unfair labour practice as contemplated in section 186(2)(a) of the LRA in terms of promotion. The Respondent did not act irrationally, capriciously, arbitrarily or mala fide by not appointing the Applicant in the position of Senior English Lecturer (PL2).

Relief

The Applicant would not be entitled to relief.

Award

The Respondent, Department of Higher Education & Training, did not commit an unfair labour practice as contemplated in section 186(2)(a) of the LRA in relation to a promotion in respect of the Applicant.
The matter is dismissed.