Case Number: ELRC470-25/26GP
Arbitrator: Clint Enslin
Date of Award: 15 January 2026

In the matter between

Ronald Bojang
(Applicant)

And

Department of Education – Gauteng First Respondent

Precious Sibiya Second Respondent
(Respondents)

Union/Applicant’s representative:

Mr Sizwe Nakalanga (SADTU)

Telephone: 0761000261
Telefax:
E-mail: U29607753@tuks.co.za

Respondent’s representative: First & Second Respondent – Mr Diketso Jafta
Respondent’s address:

Telephone: 0119832255
Telefax:
E-mail: Diketso. Jafta@gauteng.gov.za

Details of hearing and representation

1. The arbitration hearing into an alleged unfair labour practice dispute (promotion), referred in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 (the LRA), read with clause 17 of part C of the ELRC Constitution,was held on-line via the Teams platform, on 19 September, 21 October and 25 November 2025.
2. The Applicant, Mr Ronald Bojang, was present and represented by Mr Sizwe Nakalanga, an official of SADTU. The First Respondent, Department of Education – Gauteng, as well as the Second Respondent, Ms Precious Sibiya, were represented by Mr Diketso Jafta, a Senior Education Specialist of the First Respondent.
3. The arbitration was digitally recorded.
4. Written heads of argument were received on 3 December 2025.

Issue to be decided

5. The issue to be decided is whether or not the failure, by the First Respondent, to appoint the Applicant to the position he applied for, being the post of principal at Daliwonga Secondary School, amounted to an unfair labour practice; and
6. if so, to determine the appropriate relief.

Background to the matter

7. The Applicant referred an alleged unfair labour practice dispute relating to promotion.
8. The Applicant sought that the Second Respondent’s appointment be set aside and that he be appointed to the said post.
9. The following facts were common cause:

9.1 The Applicant is employed by the First Respondent as a PL3 deputy principal at Reutlwele Junior Secondary School and was so employed at the time of applying for the position in question.

9.2 He applied for a vacant substantive post, as advertised on 18 July 2024, under post number JC54ED1002, in circular 5/2004.

9.3 The post applied for was that of principal at Daliwonga Secondary School, a PL4 post.

9.4 The abovementioned position would have amounted to a promotion for the Applicant.

9.5 The Applicant’s current salary notch is R521 994 per annum.

9.6 The Applicant was shortlisted and interviewed for the position.

9.7 The Applicant was one of three persons recommended by the SGB and was placed first.

9.8 The Second Respondent was appointed to the position in dispute on 1 July 2025.

10. The following facts were in dispute:

10.1 Whether the Applicant was better qualified than the Second Respondent.

10.2 Whether the Applicant had more experience than the Second Respondent.

10.2 Whether the Applicant was best candidate and should therefore have been appointed to the position in question.

11. The Applicant and First Respondent each submitted a bundle of documents. The Applicant’s bundle was marked as “A” and the First Respondent’s as “B”. Parties agreed that the documents were what they purported to be. Survey of evidence
12. This award constitutes a brief summary of evidence, argument and my reasons for the award issued in
    terms of Section 138 (7)(a), of the LRA, relevant to the dispute at hand and does not reflect all the
    evidence and arguments heard and considered in deciding this matter.

Applicant’s evidence
Mr Ronald Bojang

13. The Applicant, Mr Ronald Bojang, testified that he held a Secondary Teachers Diploma, majoring in mathematics and electronics, an Advanced Certificate in Education majoring in leadership and management as well as an Honours Degree majoring in leadership, management and administration. He had approximately 23 years’ experience as an educator. From 2002 to 2009, whilst at Mafori Comprehensive School, he taught mathematics for grades 10 and 11, physical science for grade 10 and electrician work for grades 10 to 12. Since February 2009 to date he has been at Reutlwele Junior Secondary School. For the first 8 years, at said school, he taught mathematics, natural science and technology for grade 9. In September 2017, he was promoted to Departmental Head for mathematics, science and technology. He remained in this position for 5 years. In November 2022 he was promoted to deputy principal of said school, a position he still holds.
14. From 2017 to 2024, he was also leading teacher for mathematics – senior phase. He was also a facilitator of CAPS, when it was introduced. He had leadership, management and administrative skills as required by the advert. He also has qualifications in management. He often had to stand in as principal at his current school which was grade 8 and 9, but had over 600 learners. Despite the advert requiring leadership, management and administrative skills related to the specific school type (Grade 8 to 12), he believed he qualified for the position due to his qualifications and the fact that, in his view, leadership and management were not grade related. If he did not qualify for a position, it should be picked up early and he should not be short listed. Page 26 of R was the HR checklist, used to ensure candidates meet the minimum requirements. At point 6 it was confirmed that all 3 candidates recommended met the requirements.
15. He disputed that his management experience was limited to a school with only grades 8 and 9. He had taught FET for 7 years and was also a departmental head for 5 years. In his view, management was holistic as it required dealing with staff, learners, finance, infrastructure etc. He, however, agreed that he was not currently managing the FET phase (Grades 10 to 12) and that he was not in a management position at his previous school, where he dealt, inter alia, with grades 10 to 12. He further agreed that in his current position he had no responsibility of overseeing grade 12 exams or management of various streams (learner subject selection for the field they want to pursue).
16. The SGB had ranked him as first. He agreed that the candidates who were ranked second and third (including the Second Respondent) had more experience a deputy principles than him. He disputed that managing a school from grade 8 to 12 was more complex than doing so at a school from grade 8 to 9. He further agreed the school in question had nearly double the number of learners that his current school had. The issue of him being a lead teacher was not included in his application was therefore new information. He agreed that the decision to promote was a prerogative of the delegated authority but same had to be rational. He believed the appointment of the Second Respondent was not rational. The focus was on a phase and not on management experience. The SGB had recommended him as number 1 and same was ignored.

Mr Bongani Nyathi (SGB member and panel chairperson)

17. Mr Bongani Nyathi testified that he had been on the school’s SGB for 2 years. He had previously been the SGB chairman at a different school for 9 years. The recommendation for appointment, by the SGB, had never previously been ignored by the delegated authority. The advert on page 8 of R required leadership, administration and management skills related to specific school type. They had satisfied themselves that the Applicant met all the requirements. All the aforementioned requirements were considered when making the recommendation. The Applicant was ranked number 1 and the Second Respondent number 2 as the Second Respondent had not satisfied them in the answering of the questions. The Applicant’s answers were beyond what they expected. They recommended the Applicant as number 1 as he had better qualifications. They believed a person with better qualifications was better for the learners. It was not fair to appoint the number 2 candidate. It had not gone as expected.
18. Their responsibility was to make a recommendation to the delegated authority for appointment and the delegated authority was responsible to appoint. The problem was that the department did not call them and inform them that they would not follow the recommendation and give reasons for same. They did not feel that they were heard in the matter due to the fact that they were simply informed of the situation, without being able to give any input, and the IDSO (cluster leader) did not inform them of the decision. None of the panel members supported the First Respondent’s decision. Since the Second Respondent’s appointment, the situation has been sour. Parents are asking what happened to the recommendation, teachers are sad and the SGB lack enthusiasm.
19. He was aware that the panel merely made a recommendation and that the delegated authority made the appointment. The Second Respondent was initially scored as number 1 by the panel, however, union officials informed them that they had done certain things wrong. They relooked at it and decided they will redo it and rectify their mistakes to avoid the union reporting them. One panel member had exceeded the agreed maximum score of 20 for the Second Respondent. That was the only issue raised. Later he conceded that the aforementioned was only an example, as it was not what was contained on page 21 of R (Minutes) where the union representative from SADTU had raised concerns about reflecting on the scores. He had asked if the chairperson will allow for reflection of the scores as the scores did not reflect what was said by each candidate in the room, that some panellists had only scored much later and not wile candidates were answering and some score sheets did not have marks allocated.
20. The panel was aware that the delegated authority could appoint any of the 3 recommended. They had considered the experience of the Applicant versus the other candidates in management. They had not seen that the Applicant had the least experience in management. He disputed that the Applicant was the least experienced and confirmed that if that was the case, they would not have recommended him.

Mr Bongani Tobo (SGB member (educator) and panellist)

21. Mr Bongani Tobo testified that his role on the SGB was to advance the interests of teachers. Most of the teachers are not happy with the appointment of the Second Respondent. In the interview, some panel members had underscored the Applicant and over scored the Second Respondent. The union asked panel members to verify answers and scores. After doing so, the Applicant was scored as number 1 and the Second Respondent as 2, despite it not being that way before the verification. They had also found that the Applicant’s experience was traceable in that it could be verified within the department, whilst the Second Respondent’s was not as it spoke of night school, etc. The Applicant was therefore recommended. He disputed that parents had accepted the outcome, after the Directors office had met with the SGB and confirmed that the appointment had been rejected by the SGB. The appointment letter, of the Second Respondent, had already been with the First Respondent when they met. As such the appointment had already been made at the time of the meeting.
22. The recommendation was made in order of preference, after looking at the answers given, qualifications and experience. The Second Respondent had acted as principal of the school before (position she was now appointed to) and they had received a bad evaluation report from the district. The report showed that the Second Respondent was not fit for the position. The report was done by the department and showed the school was not run correctly. The SGB members felt that if the candidate proposed as number 1 was not appointed, they should have been consulted.
23. He agreed that the final decision to appoint lay with the delegated authority. He was aware that if the delegated authority did not appoint the candidate ranked as number 1 by the SGB, they merely had to consult the SGB and did not need to seek approval. Although the Fist Respondent had the appointment letter of the Second Respondent with them at the meeting with the SGB, he did not know when the Second Respondent had accepted the position. The bad report, he had referred to, evaluated the entire school, but he felt the buck stopped with the principal. The school had had two acting principals during the time that the report was conducted. They felt both were to blame. The evaluation was done before the recruitment and the report was received after the recruitment. As such, he conceded that at the time of making their recommendations they were not aware of the report. He was also not aware what the same report said about the Applicant at the school he came from.
24. He agreed that teaching time at a private school versus teaching time at a government school was the same and that it would be unfair to discredited experience in a private school, however, he felt it should be supported by payslips, etc. He conceded that the Applicant had not submitted his payslip when applying for the post, that same was not a requirement and that the panel had not requested the Second Respondent to submit payslips. He had been aware that the Applicant had the least amount managerial experience out of the candidates recommended. He had also been aware that the Applicant had never managed FET (grades 10 to 12) phase.

Respondent’s evidence
Ms Tshepo Seate (District Director of Johannesburg Central District)

25. Ms Tshepo Seate testified that the discretion to appoint came from ELRC Collective Agreement 1 of 2021 read with the Employment of Educators Act. Clause 16.1 of the said Collective Agreement, on page 59 of R read: ‘Despite the order of preference recommended by the School Governing Body in Form C/Submission: Annexure C the Head of the Department or his/her delegated authority will appoint a suitable candidate on the list of interviewed candidates.” In the current matter they felt that full high school experience was more aligned to the needs of school. When they advertised leadership positions, the type of school was important. There were various types of schools and not all of them can be lead the same. The school currently in question was a full high school with a large number of learners. She had looked for experience in grades 8 to 12. It was important to know the streams as learners took all subjects in grades 8 and 9, however in grade 10 they had to choose. It was therefore important for them to check management in the specific school type to benefit the learners.
26. She did not know the candidates when making the appointment. They looked at suitability. The file first goes past HR, she then applies her professional educational judgement. If she had queries she discussed same with HR, particularly if she did not agree with the ranking. After checking same, they would go ahead. She did not make the final decision. Her recommendation went to the Director of Recruitment and Selection at Head Office, who considered it against the original recommendation and looked at the file. It then went to a higher level of HR who also checked the recommendations versus the file. It then went to the Deputy Director: Corporate Management, who also checked. Only after all this did it go to the Head of Department for approval.
27. It was important to get someone who could hit the ground running as the school was high performing. The needs of the school were paramount. She had to look at the recommended candidates and decide who the best was for the learners. She found that the Second Respondent was the best as he had more experience. She would have recommended the candidate ranked 3 next as he also had more experience than the Applicant. When she explained the reasoning to the SGB, one panel member objected and referred to the school evaluation. She had to remind them that both deputies acted and as such it was not possible to say who was responsible.
28. The panellist confirmed to her that he had not checked the same report for the other candidates. When she looked at the minutes of the interviews, there were times where everyone scored the Second Respondent high, except the panellist who raised the issue of the report. It was only after the interview and the revaluation that the numbering changed. She had supported the appointment of the Second Respondent, based on the type of school and the fact that she had more experience aligned to the school. She also considered qualification.
29. In making her recommendation she looked holistically with special emphasis on management of the curriculum. She checked the candidates experience in their CVs. Vetting of same took place before and after this. She worked with the documents before her. She disputed that he Applicant would never be suitable for promotion, if school type was considered, due to the fact there were similar schools to his in other regions. With reorganisation of schools, the grade 8 and 9 schools were becoming fully fledged schools and he would also grow with the school. Although the Applicant had taught at a school with grades 10 to 12 for 7 years, the curriculum had changed since he was there in 2009. He was also not in management position there.
30. The principal of a fully-fledged high school becomes the chief invigilator of grade 12 final exams and same cannot be delegated. The Applicant did not have such experience. A single mistake in this regard could result in the entire country needing to re-write. As such, a person with experience was important. The Second Respondent had been an invigilator for grade 12 before and as such was better equipped to deal with being the chief invigilator. She disputed that the Applicant was disadvantaged because he did not work at the school. The candidates ranked second and third were better than the Applicant, as they had management experience in a fully-fledged high school. Learner’s interests were central.

Analysis

31. Section 185 (b) of the LRA provides that every employee has the right not to be subjected to unfair labour practice.
32. The definition of unfair labour in terms of section 186(2)(a) of the LRA includes “any 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 provisions of benefits to an employee”. (Own underlining)
33. The Applicant challenged the alleged unfairness of his non-appointment to the post of principal at Daliwonga Secondary School based on the basis that he believes he was the best candidate. Linked to this is that he believes he has better qualifications and experience than the Applicant.

Does the Applicant have better/higher qualifications than the Second Respondent?

34. The Applicant testified that he holds a Secondary Teachers Diploma, majoring in Mathematics and Electronics, an Advanced Certificate in Education majoring in leadership and management as well as an Honours Degree majoring in leadership, management and administration. A quick look at the Second Respondent’s application form reveals that she holds a BA Degree and a Post Graduate Certificate in Education. An Honours Degree is generally a NQF level 8, whilst a Post Graduate Certificate is generally a NQF level 7. Both candidates appear to be highly qualified academically and meet the requirements for the position in question. The Applicant, however, appears to have the higher qualification.

Does the Applicant have better experience than the Second Respondent?

35. The Applicant agreed that the other two recommended candidates had more experience as deputy principals than he did. He further agreed that in his current position he had no responsibility of overseeing grade 12 exams or management of various streams. It is clear from the evidence that the Applicant’s managerial experience consist of 5 years as a departmental head and a deputy principal position since 2022. Both of these at his current school which only has grades 8 and 9. He last spent time at fully fledged High School at the beginning of 2009 and same was not in management, but rather as an educator.
36. He did not dispute that the Second Respondent’s experience was in the school type required, whilst his was not. He instead argued that managerial experience is not phase or school type related, but rather generic. I cannot agree with this argument/proposition. Whilst certain parts of it may well be generic, there are areas that are school type specific. The advert itself requires that the leadership, administration and management skills be related to the specific school type. Ms Seate explained the reasoning and importance of same. I am satisfied that her explanation makes sense and, in my view, is rational. I am therefore satisfied that the Second Respondent possessed the better experience, particularly relating to the specific school type, as required by the advert.

Was the Applicant the best candidate and should he have been appointed?

37. The Applicant was recommended as the candidate ranked as number 1. The evidence shows that this was not initially the case. There was intervention from the union and only after same was the Applicant ranked number 1. I must state that I find this strange, however, I am not in position to determine that the final outcome was not correct according to the panel. What is, however, in my view, notable is that Mr Bongani Nyathi testified that they had not seen that the Applicant had the least experience in management. He further confirmed that if that was the case, they would not have recommended him. Mr Bongani Tobo testified that he had been aware that the Applicant had the least amount managerial experience out of the candidates recommended. He had also been aware that the Applicant had never managed FET (grades 10 to 12) phase. This in view of the specific requirements of the advert. Surely, this must place question marks as to how the Applicant was recommended as the number 1 ranked candidate?
38. Although the Applicant appears to have the higher qualification, he certainly has less managerial experience related to the specific school type, a specific requirement in the advert. In fact he had no managerial experience in FET (grades 10 to 12). Mr Bongani Tobo sought to make much of the poor report received by the school, however, he conceded that that at the time of making their recommendations they were not aware of the report. Why then seek to rely on it, if it played no role in the recommendation? He also sought to rely on what he perceived to be lack of proof/ lack of ability to verify the experience of the Second Respondent. He, however, conceded that if this was a concern, the Second Respondent was not requested to supply same. It is concerning to me that the said witness sought to rely on such issues, however, did not seem to have any concern that the Applicant had the least managerial experience and in fact had no FET related managerial experience, something that was specifically required by the advert.
39. I am not convinced that the Applicant was the best candidate, however, even if I am wrong in this, ELRC Collective Agreement 1 of 2021, clause 16.1 confirms that: ‘Despite the order of preference recommended by the School Governing Body in Form C/Submission: Annexure C the Head of the Department or his/her delegated authority will appoint a suitable candidate on the list of interviewed candidates.” What the First Respondent did is accordingly in line with the aforementioned. The First Respondent exercised its discretion to do so. There is nothing before me to lead me to the conclusion that such discretion was exercised unfairly or irrationally. As stated, the explanation for doing so is, in my view, sound as it is backed by the requirements of the advert itself and by the reasoning for same, as testified to by Ms Tshepo Seate, which I believe to be rational.
40. In light of the above, I am of the view that the Applicant has failed to prove, on a balance of probabilities, that the First Respondent committed an unfair labour practice against him by not appointing him to the position of principal at Daliwonga Secondary School.

Award

41. The Applicant, Mr Ronald Bojang, was not subjected to an unfair labour practice by the First Respondent, the Department of Education – Gauteng.
42. The Applicant, Mr Ronald Bojang, is not entitled to the relief he seeks.

Signature:

ELRC Arbitrator: Clint Enslin