30 January 2026 – ELRC350-25/26KZN

IN THE ELRC ARBITRATION
BETWEEN:

NUPSAW on behalf of its member, P.L. SHONGWE Applicant
and
THE DEPARTMENT OF EDUCATION – KWAZULU-NATAL 1st Respondent
MATUSI MADLALA 2nd Respondent

ARBITRATION AWARD

Case Number: ELRC 350-25/26KZN
Last date of arbitration: 01 DECEMBER 2025
Date of submission
of closing arguments: N/A
Date of award: 16 JANUARY 2026

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

DETAILS OF HEARING AND REPRESENTATION

The arbitration was scheduled for hearing on 01 December 2025. The arbitration was held at Durban Teachers Centre, College Road, Duban.
NUPSAW, a trade union, referred this dispute on behalf of its member, Ms. P.L. Shongwe (hereinafter referred to as the Applicant.) Mr M. Moodley, an official of the trade union, represented the Applicant.
Both the 1st and 2nd Respondents were absent. I have satisfied myself that both Respondent were properly notified of the matter scheduled for arbitration on 1 December 2025 at the Durban Teachers Centre. Notification of same was emailed to the parties on 4 November 2025 to the respective email addresses viz the 1st Respondent per Sinethemba.Daniso@kzndoe.gov.za and the 2nd Respondent per thegrangeprim@gmail.com.
The Applicant elected to proceed with the arbitration in the absence of the Respondent. The Union submitted a bundle of documents in support of the Applicant’s case, marked as Bundle A. The proceedings were digitally recorded.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

The arbitration is in respect of a referral by the Applicant alleging that the Respondent acted unfairly when it failed to appoint her as the head of department and appointed the second Respondent instead.
My task is twofold: I am tasked to decide whether:
i. Whether the failure of the Respondent to shortlist the Applicant was unfair and constituted an unfair labour practice, and
ii. Whether the Respondent’s decision to appoint the second Respondent instead of the Applicant constituted an unfair labour practice in terms of Section 186(2)(a) of the Labour Relations Act,
and if so, whether the Applicant is entitled to the relief that she seeks.

BACKGROUND

The Applicant is employed as an educator at The Grange Primary School in Pietermaritzburg and serves as level 1 educator. She has been employed at this school for 29 years since 1996.
The Applicant applied for the position of head of department (HOD) per HRM 20/2024. She was not shortlisted however contends that she met all the criteria for the post. The second Respondent was appointed in the post. SUMMARY OF EVIDENCE AND ARGUMENTS
The evidence of the Applicant is summarized herein and includes testimony in chief and any questions asked by myself for clarity. Only the most pertinent information and salient argument is reflected in this summary.
In his opening argument Mr. Moodley stated that the matter was previously conciliated and thereafter scheduled for arbitration on 26 September 2025. Due to technical difficulties the matter was not heard on the day. The 1st Respondent had been represented by Mr. Danisa on the day and he and Mr. Danisa agreed to hold a pre-arb meeting on 16 October 2025. The said meeting did not occur after Mr. Danisa indicated that he would be out of the province. The new date was confirmed for 27 November, however, the parties failed to meet on that day as well.
Mr Moodley stated that the Applicant has been a level 1 educator for 29 years and the Department has failed to advance her in this time. During conciliation, the Respondent indicated that the Applicant was not shortlisted because she noted an incorrect post number on her application. He stated further that the Applicant denies this and her testimony will prove that she was the best candidate for the post. The Applicant seeks either a protected promotion or compensation as recourse for the unfair labour practice effected against her.

The Applicant’s case (Testimony)

The Applicant testified that she applied for numerous positions over the years but was unsuccessful. Most recently, she had applied for the positions of Deputy Principal and head of department, and was unsuccessful in both endeavors. This current dispute relates to the post of head of department. She stated that she has applied for these two posts on numerous occasions and they have always appointed other people. She also recently applied for the post of Principal and was also unsuccessful.
She testified that she was aggrieved because she believes that she was the best candidate for this post. She stated that she has worked very hard at the school and has served as a SGB (school governing body) member, fundraised and started programs eg girl guides and gardening which in turn assists people in the community. She also works with the science expo and assists learners to enter their science projects in the expos. Many of her learners went on to become high level professionals eg doctors and teachers.
She stated that she wanted to be part of the SMT (school management team) because she felt that she could contribute especially to the curriculum. She believes that she has been denied these opportunities through the years. She also stated that in all these years the school has seen many principals and that many are “new people” who don’t have her work ethic. Despite this, they achieve SMT positions, yet they make no positive changes to the school. She believes that she is “being punished” for speaking up about appointees that are not working well at the school.
She stated further that the SMT members are all members of SADTU as was she. Further, SGB members in the parent component who are also educators are also members of SADTU. She stated that the current principal was previously employed in the same school as one of the parents who teach at that school before being promoted to The Grange. This was concerning for the Applicant and she joined NUPSAW to file this dispute
The Applicant testified that she was not shortlisted for the post despite meeting all the criteria as per the post advert on Page 17 of bundle A. She referred to several documents in support of this claim viz:

I. Her service record on pages 68-70 shows that she was employed on 1 January 1996 and still remains on level 1 in 2025. She has thus met criteria for 3 years of teaching experience.
II. On Page 62 was proof that she was registered with SACE.
III. On Page 64-67 there was proof of obtaining a 4 year qualification, which is a Batchelor of Education degree and a Higher Diploma in Education (senior Primary). She also holds a diploma in advanced management.

She also testified with regards to the selection committee. She stated that there were 11 members listed . The teacher component comprised 4 educators from the school. She went on to describe her relationship with the 4 teacher members.
She stated that Ndlovu was the principal who was appointed to the school. She was previously sharing the teaching of grade 5 English with him, and stated that they worked well. She stated that she has not worked closely with Shange but that they mutually “greet and talk”. In relation to Ms. Ramcharran she stated that they do speak to each other, however the Applicant noted that she was “dumped in the foundation phase” under Ramcharan for 1 year. The Applicant always made a point to fill out the QMS appraisal form and she always noted thereon that she was not trained for foundation phase and that this affects the learners. She would also write that it was “mismanagement” by the SMT. The Applicant also asked the subject adviser to come and discuss the problem however, she stated that “that person was ‘blocked’ by the principal and deputy head. The said subject adviser told the Applicant that he was satisfied with the response of the SMT. She stated that she should have been sent to grade 7 thereafter, however she was sent to grade 5 without consulting with her. She believes that the SMT did not want her to qualify for promotion posts. In respect of Ms. Xaba, she stated that she was not on speaking terms with her, although the Applicant acts professionally and only engages with Xaba for “school purposes”. The Applicant and Xaba were both teaching grade 4 learners. She stated that she (Applicant) was sent to teach grade 3 but Xaba was advanced to acting HOD. Thereafter, Xaba got the deputy principal’s post. The Applicant states that the principal always blames the SMT for decisions raking about her (in relation to where she will teach etc).
The Applicant stated further that there were three posts advertised, that of deputy principal, HOD and level 1 educator. Shange applied for the level 1 post since he was an SGB paid teacher. Xaba applied for the deputy principal and HOD post. Thus, they both recused themselves from the panel. She notes that both were successful in their applications. She stated that she is of the view that because she is highly qualified and has ethics, she is unpopular, and thus the reason why she is not being advanced. She stated that the second Respondent was appointed from “outside” the school whereas she had 29 years of experience within that school environment, making her a better fit for the post.
She also disputed that she placed an incorrect post number on her application and stated that the Respondent had ample opportunity to prove this since the time it had made the allegation. She also stated that the documents are verified by the principal before they go to the selection panel. She noted that she saw him using a blue pen (instead of black) and placed the stamp upside down. Not being happy with this, she reprinted the application and ensured that he signed and stamped it correctly.
The Applicant stated further that she was not challenging the person who was appointed, but that she wanted to highlight that she should have been shortlisted. She is unaware if the second Respondent was less qualified than her to be in the post, but she is aware that he has fewer years of experience than her.

The Respondent’s case

a) Absent

SUMMARY OF CLOSING ARGUMENTS

The Applicant

Mr Moodley declined to submit closing argument, stating that the Applicant has covered everything in her testimony.

The Respondent

Not applicable.

ANALYSIS OF EVIDENCE AND ARGUMENT

I am tasked to determine whether the Respondent committed an unfair labour practice by failing to shortlist and thereafter not appointing the Applicant to the post of head of department.
The Applicant testified that she had met all the criteria for the post of head of department, however, that the Respondent failed to shortlist her to be interviewed. Her further complaint was that in 29 years, the employer has failed to promote her despite her applying for several posts. The test for what constitutes a fair process in a promotions dispute is trite law in our Courts.
In the case of Ndlovu v CCMA and others [2000] ZALC 153, the Labour Court found at paragraphs 11 and 12:
“It can never suffice in relation to any such question for the complainant to say that he or she is qualified by experience, ability and technical qualifications such as university degrees and the like, for the post. That is merely the first hurdle. Obviously a person who is not so qualified cannot complain if they are not appointed.
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. That will almost invariably involve comparing the qualities of the two candidates. Provided the decision by the employer to appoint one in preference to the other is rational it seems to me that no question of unfairness can arise.” (my emphasis).
In the case of Department of Higher Education and Training v Commissioner Bheki Smiza Not Reportable Case no: JA53/2022 (LAC JHB), the Labour Appeal Court found:
“To succeed in an unfair labour practice claim related to promotion usually requires an employee to prove that they were not given a fair opportunity to compete for a post. This may involve evidence that the process was unfair and that despite the employee having the necessary experience, ability and technical qualifications for the post, an unfair appointment decision was taken.” (my emphasis).
In the dispute before me, the Applicant has provided via documentation, the prerequisites of the advertised post. The Applicant further demonstrated via documentation, that she met all the pre-requisites of the post. It is thus my finding that the Respondent committed an unfair labour practice by failing to shortlist the Applicant, and therefore, she did not have a fair opportunity to compete for the post.
The Applicant requested a protected promotion (alternatively compensation) as recourse for the fact that she had not been shortlisted. I turn to precedent in this regard.
In the case of Noonan v Safety and Security Sectoral Bargaining Council and Others (PA 1/11) (2012) 33 ILJ 2597 (LAC) (1 June 2012, the Labour Appeal Court had regard to the finding of the Court a quo (Labour Court) where that Court held:
“There is 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 constitutes an unfair labour practice.”
The LAC also went on to find that the Arbitrator was correct in finding that the employer had committed an unfair labour practice in respect of the promotion of the third party, however substituted the Arbitrators award of protected promotion with one of compensation.
In the recent case of City of Cape Town v Asia Coetzee and Others (C24/2022) [2024] ZALCCT 61 (6 December 2024) the Labour Court confirmed the finding of the Arbitrator, where she found that the failure to shortlist the employee constituted an unfair labour practice, and she awarded compensation to the employee.
The Applicant testified that she was not challenging the appointment of the successful incumbent but rather highlighted that she should have been shortlisted. She was unable to demonstrate that a comparison between her own qualifications and experience outweighed that of the successful incumbent.
It is thus my finding that the Applicant did not discharge the onus to prove that she was the better candidate, however it is clear that an unfair labour practice was committed by the Respondent when it failed to shortlist the Applicant, despite that she met all the criteria of the post. I see no reason why the Applicant should not be awarded compensation for the unfair labour practice.
Taking into account the lengthy period of service of the Applicant and the, and guided by the Collective Agreement 3/2016, ELRC Guidelines: Promotion Arbitrations, (specifically clauses 71 and 76), I find that it is just and equitable to award compensation in the form of solatium for the unfair labour practice committed by the 1st Respondent. The Applicant is thus awarded compensation in the amount of R 20 000.00

AWARD

The Respondents failure to shortlist the Applicant constitutes an unfair labour practice in terms of Section 186(2) of the Labour Relations Act .
The Applicant is awarded compensation in the form of solatium in the amount of R 20 000.00. The Respondent is directed to compensate the Applicant no later than 30 January 2026 from the date of receipt of this award.