30 January 2026 -ELRC488-25/26 EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT EAST LONDON
IN THE MATTER BETWEEN
SANDI MBUYISELI APPLICANT
AND
DEPARTMENT OF EDUCATION EASTERN CAPE 1ST RESPONDENT
MGEBISA JUDITH 2ND RESPONDENT
CASE NO ELRC488-25/26 EC
DATE/S OF HEARING 28 OCTOBER 2025 – 11 DECEMBER 2025
DATE AWARD SUBMITTED 14 JANUARY 2026
NAME OF PANELIST SIZIWE GCAYI

SUMMARY : Labour Relations Act No 66 of 1995 – section 186(2) : Alleged unfair labour practice by the employer.

            ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION

The arbitration hearing was held under the auspices of the ELRC. The Applicant declared a dispute in terms of section 186[2] of the Labour Relations Act 66 of 1995, as amended. The matter was held on 28 October 2025, 10 December 2025 & 11 December 2025 on virtual platform at 09h00.The matter was set down for arbitration in terms of section 191(5) of the Labour Relations Act 66 of 1995 (LRA). Mr Brian Washington an attorney represented the Applicant. [ Mbuyiseni Sandi]. Advocate Mpho Mhlanti represented the first Respondent, (Department of Education Eastern-Cape) and 2nd Respondent [ Judith Mgebisa] .
The proceedings were electronically recorded and manually recorded. The parties handed in bundle of documents in support of their cases. All parties agreed to rely on bundle A. The parties were given up until 22 December 2025 to file their closing arguments to the Council and they were received on 27 December 2025. In penning down this award their submissions were considered.

ISSUES TO BE DECIDED

I am required to determine whether an unfair labour practice relating to promotion was committed by the 1st Respondent. Further, depending on my finding, l am required to determine the appropriate relief.

BACKGROUND OF THE DISPUTE

This is a promotion dispute involving post DOE-SA03/11/2024 post for Chief Education Specialist [ CES] – School Administration.
After the post was advertised, the Applicant, the second Respondent and other candidates applied for the post. The second Respondent was appointed as CES – School administration.
The Applicant alleged that the 1st Respondent contravened the recruitment and selection policy for the department of Education-Eastern-cape.
The 1st Respondent was bias towards the 2nd Respondent. The relief sought by the Applicant is twelve [12] months compensation.

SURVEY OF EVIDENCE
Applicant’s case

The Applicant testified himself and called no other witness in support of his case. In summary, the Applicant testified as follows: He was in the employment of the Respondent no 1, holding the position of deputy chief education specialist. He testified about his working relationship with Mr Mancoko. He was in detail to the events that occurred in April 2021 when he was appointed act as a director- school administration. The post that was previously occupied by Mr Mancoko. It was his evidence prior the acting position, he enjoyed a good relationship with Mr Mancoko. They were both members of the South African Democratic Teachers Union [ SADTU]. He shared the good news with Mr Mancoko about the acting position.He was told that it was the destabilization of the trade union. Mr Mancoko did not receive the news well. Trade union had a meeting, and he was given support by the trade union to accept the acting position. He accepted the offer. Mr Mancoko stopped going to work, approached the offices of the political organisations. Mr Mancoko declared him as enemy and amongst the people that were fighting him.
Mr Mancoko never reported to work under his supervision for a period of three months. All the senior managers were aware of the situation. No action was taken. Mr Mancoko was given another acting position in August 2021 up until the time he was appointed as a director in 2023.
Bundle A pg 1- letter for grievance hearing. Mr Mancoko and Mr Ganda were invited to the hearing. It was his evidence that Mr Mancoko applied for his recusal, he informed his supervisor Mrs Fikeni and he recused himself. Mr Mbambeni was appointed to chair the grievance hearing. [ pg 8].
In relation to the dispute about the position of the Chief Education Specialist [ CES] He applied for the position in December 2024. Bundle A pg 35- letter written to Mr Joseph- Chief Director School Administration. The letter was written in March 2025. Mr Joseph was the chairperson of the recruitment process. Page 94 para 3.1 read on record, page 95 para 3.1 responsibilities of panel members read on record.
It was his evidence that Mr Mancoko declared him as an enemy. He had a duty to recuse himself the minute he saw his name because he would not be objective towards him. He also mentioned that Mr Joseph had a responsibility to ensure that panellists declared conflict of interests.
He also testified about what transpired during the grievance hearing. Mr Gwiba submitted that there were recusal letters against Mr Mancoko. He also mentioned that at shortlisting stage, his name did not appear from the master list, the information the Applicant received from Mr Gwiba.
Relationship between Mr Mancoko and 2nd Respondent: He mentioned that he joined the unit in 2017, he found both in the same unit. They were working very close to each other. In all units that Mr Mancoko acted on, the 2nd Respondent followed him. It was his evidence that he also offered 2nd Respondent opportunity to act and she declined it. He offered her acting position of CES in May 2021. Mr Mancoko in 2023 was offered the position of Director and Mr Mconywa Thembani was acting CES. On his arrival Mr Mancoko changed Mr Mconywa and replaced him with the 2nd Respondent. She was offered the position of acting CES. He maintained that it was public knowledge the relationship between Mr Mancoko and the 2nd Respondent. Ms Fikeni passed a comment on the appointment of 2nd Respondent that Mr Mancoko employed his lover. It was his evidence that Mr Mancoko did not comply with the policies of the department, page 39,40 & 41.
Marks allocation: It was his evidence that all panellists gave him fair marks, Mr Joseph gave him maximum marks and others above 20 except for Mr Mancoko. On page 53 Mr Mancoko only scored him below 20. Interview scores page 42 – 65.
Biasness : He mentioned that Mr Mancoko declared him as an enemy. The closeness of Mr Mancoko and 2nd Respondent. He stated that Mr Mancoko had a duty to recuse himself. Bundle A pg 111- guide to correct irregular appointments was read on record.
The relief sought was compensation.
Respondent’s Case
The first Respondent.
The first Respondent called one witness Mr Melikhaya Mancoko [ “ Mancoko”] . He testified as follows: In November 2023 he was appointed as a director. He gave a detailed background about the events that occurred between November and December 2023. He also mentioned the grievance hearing that was meant to be chaired by the Applicant. He applied for the recusal of the Applicant on the day of the hearing. The hearing did not proceed on that day.
In relation to the post in dispute, he mentioned that he was appointed as a member of the panel. The Applicant was shortlisted and attended the interviews. Mr Joseph was the chairperson of the interviews. It was his evidence that the interviews had two phases. 1ST phase – presentation phase and 2nd phase questions and answers. He also gave details of how scores were allocated to each candidate and time allocation for answers. He submitted that the chairperson gave all candidates opportunity to ask questions from the panellists. The Applicant expressed his gratitude for participation in the recruitment process.
Detailed background information about the events of April 2021 – May 2021. He stated that his acting appointment was not renewed and the Applicant was appointed to replace him in the position which he occupied, acting director. It was his evidence that he arranged meetings with the Member of the executive committee [MEC] for education in the province Mr Gade. He requested a removal letter form the position he occupied. He was in detail with the meetings he held with various senior managers including Dr Mbude.
In June 2021 he had discussions with Mr Mnguni and he proposed a straight transfer and he was transferred to directorate – landscaping in July 2021. He also mentioned various positions he occupied in 2022.
It was his evidence that he did not have issues with the Applicant because he did not appoint himself. The Applicant was appointed by the head of department [HOD].

The Second Respondent

The second Respondent closed its case without leading any evidence.

ANALYSIS OF EVIDENCE AND ARGUMENT

It is trite that the Applicant bears an onus to prove an unfair labour practice as defined in section 186(2) of the Labour Relations Act (LRA) was committed by the Respondent. The Applicant has to convince the arbitrator that the conduct of the Respondent amounted to an unfair labour practice as defined and distilled from applicable jurisprudence and as envisaged in the law.
I have considered the departmental guidelines for sifting, shortlisting, interview procedures.
I have also considered the recruitment and selection policy for the department of Education-Eastern-cape.
I have also considered, the advertisement in question.
Section 186(2) of the LRA reads as follows: “unfair labour practice any unfair act or that omission arises between an employer and the employee involving, unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about unfair dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee”.
I have to decide whether the 1st Respondent acted fairly or not in not appointing the Applicant for the position of the Chief Education Specialist [CES] – School administration.
It is common cause that the Applicant applied for the CES position. He was shortlisted; he attended the interviews.
In JELE v PREMIER OF THE PROVINCE OF KZN & OTHERS [2003] ILJ 13 [LC] It was stated, in deciding whether the dispute involves the promotion, one has to compare the employees current job with the job or post applied for, to determine whether a promotion is involved. Some of the factors to be taken into account are: difference in remuneration, fringe benefits, status, levels of responsibilities, of authority and job security.
It is important to note that there is no right to promotion however there is a right to be given a fair opportunity.
In NOONAN v SSSBC & OTHERS [2012] 33 ILJ 2597 [LAC], “the Court held that there was 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 constitute an unfair labour practice. If the employee is not denied the opportunity of competing for a post, then the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by unacceptable reason”.
In MONYAKENI v SSSBC & OTHERS [JA 64/13] [2015] ZALAC 17 , the Court stated that there are two components to a complaint regarding a failure to promote, an employee as an unfair labour practice. The one relates to the procedure followed by the employer, the other relates to the substantive merits and it concerns the suitability of the candidate for promotion to the post in question.” The conduct of the employer may be substantively and / or procedural unfair. Substantive unfairness relates to the reason for not promoting the employee, whereas procedural unfairness relates to an unfair process applied by an employer during the course of the recruitment and selection process. [ ELRC Collective Agreement 3 of 2016]
In the current matter before the Council, the Applicant testified himself and called no other witness in support of his case. His evidence is on record. It will not be repeated, reference will be made where relevant. 80% of the evidence of the Applicant was not challenged by Respondent no 1 and 2. 70% of the evidence of the Applicant was confirmed by Mr Mancoko. I will mention few. Mr Mncoko confronted the MEC when his acting appointment was not renewed. He demanded removal letter. Mr Mancoko never reported for duty under the leadership of the Applicant. Mr Mancoko suggested to Mr Mnguni that he be given a straight transfer and in July 2021 he was appointed to act in the directorate- landscaping. The Applicant commenced acting in April 2021 and Mr Mancoko never reported for duty under the Applicant, who supervised him. April, May and June Mr Mancoko could not account for the work he did. It was the version of the Applicant and later confirmed by Mancoko. What is clear is that Mancoko did not appreciate the fact that the position he previously held was occupied by the Applicant. It was also evident when he returned to the position in November 2023, he mentioned he saw unfamiliar faces and changes were done. He confirmed the version of the Applicant that the officials that were given acting appointments eg Mr Gada were changed and returned to the previous positions they occupied. Mr Thembani was moved and the position of acting CES was given 2nd Respondent.
The Applicant pleaded that the participation of Mancoko in the recruitment process for the post in question prejudiced him and that rendered the entire process unfair. The 1st Respondent did not comply with its own policies. The were two employees who lodged grievance about the participation of Mancoko in the recruitment process and there was no action taken by Mr Joseph. Mancoko was allowed to participate in the process despite being conflicted.
The 1st Respondent did not comply with guidelines stipulated on Recruitment & selection policy for the Department of Eastern-cape, paragraph viii shortlisting.” It provides that any person with any personal or vested interest in the process must recuse himself/herself from the process. Should it be that the person does not disclose interest, disciplinary action will be taken.” For panel members it provides: “ they must be objective, fair and non biased during the process of shortlisting and interview.” Bundle A pg 42-65 was sufficient proof to the biasness of Mancoko towards the 2nd Respondent. Mancoko was not truthful when he signed page 41. Evidence of the Applicant demonstrated his untruthfulness. The version of the Applicant was not disputed by the Respondent. Senior officials of the department knew the special relationship that Mancoko and 2nd Respondent enjoyed. No senior official of the department was called to dispute the evidence. The 2nd Respondent also did not dispute the evidence of the Applicant.
Mancoko was the only witness for the 1st Respondent, unfortunately he could not save the department. He even denied that the issue of recusal was discussed before the shortlisting and interviews. I was not impressed with his testimony. It is not clear to me whether he did not know that the minutes of the interviews and shortlisting were made available and part of the bundle that parties agreed to rely upon. I repeat the 1st Respondent could not disown its property.
Mr Joseph was made aware of the relationship between the Applicant and Mancoko on a letter dated 25 March 2025. Mr Gada also lodged grievance against the participation of Mancoko in the recruitment process. On the shortlisting minutes pg 37 the grievance letter was introduced by the Joseph. However no resolution was taken. Page 80 also revealed that recusal application was discussed on the day of the interviews, two letters were received from two employees. No resolution was taken. The was no evidence presented by the Respondent to rebut the evidence of the Applicant. It was also going to be difficult for the Respondent to disown their own property. Minutes of the interviews and shortlisting is that of the Respondent.
Joseph had all the time to replace Mancoko. He received the grievances very early in the process as per page 36,37 and 80. Mancoko was not the only employee of the department who had the capabilities to participate in in the recruitment and selection process of post DOE-SA03/11/2024. The participation of Mancoko in recruitment of the above post led to the violation of the recruitment and selection policy of the department.
Moreover, the second Respondent did not testify nor called any witness to testify on her behalf. Whereas she had all the opportunity to present her version and dispute the assertions made by the Applicant when he outlined the material flaws that plagued the process that led to her appointment. In the absence of an explanation why the second Respondent did not present a version that contradicted the Applicants account. I am inclined to take an adverse inference against her that she did not have evidence to contradict the Applicant’s version.
In order to have a sustainable recruitment and selection process, the results of which could be regarded as fair in all respects (both procedurally and substantively). The first Respondent ought to make the appointment to promotional position on the basis of a credible process that materially confirmed with the provisions of Recruitment and selection policy of the province of Eastern Cape -Education, as mentioned in each of the instances above, cannot be regarded as fair and would on the absence of evidence to the contrary, amount to unfair labour practice. The recruitment and selection process must be both the procedurally and substantively fair.
Mancoko could not even hide his biasness on the marks he awarded the Applicant and those he awarded 2nd Respondent. All the other panellists as per the scores awarded fair marks based on the performance of the Applicant, which proved that the Applicant was the best candidate. The comments section by the panellist on the score sheet of the Applicant confirmed that he was the best candidate. It was only on Mancoko’s observation that the Applicant did not perform well, which I find to be very improbable, based on the evidence before the Council. It just confirms the fears that the Applicant had with the participation of Mancoko in the process. On the last question, Mancoko just awarded marks and provided no comment for the marks he awarded, I must mention he was very stingy with the marks and with 2nd Respondent he was very generous with marks and praised her on the comment section. He made it a point that the 2nd Respondent was the highest and he succeeded. The Applicant followed the 2nd Respondent. It is clear if it was not the mischief of Mancoko the Applicant would have been scored highest and HOD decide on the suitable candidate for the position. The mischief of Mancoko dented the entire recruitment process. [ Bundle A pg 42 – 65]. With the evidence before the Council the Applicant was the best candidate. The evidence of the Applicant was not disputed.
1st Respondent did not perform its functions fairly and in doing so they infringed the Applicant’s right to fair labour practice as enshrined in section 23 of the Constitution Act 108 of 1996 . In Aries v CCMA and others (2006) 27 ILJ 2324(LC) the court held that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously or for insubstantial reasons or based upon any wrong principle or in a biased manner.” To determine if the failure to promote the employee was unfair the court in Ndlovu v CCMA and others (2000) 21 ILJ 1653(LC) stated that: “it can never suffice in relation to any such question for the complainant to say that he/she is qualified by experience, ability and technical qualifications such as university degree and the like for the post, that is merely the hurdle. 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”
The Applicant bears the onus to prove that the Respondent committed unfair labour practice relating to promotion and furthermore that there was some form of unfair conduct on the part of the Respondent during the promotion process and that such unfair conduct constituted an unfair labour practice and he is entitled to the relief sought.
Based on the evidence before me, I find that the Applicant managed to discharge the onus placed on it on the balance of probabilities, that the conduct of the first Respondent amounted to unfair labour practice on both the procedure and substance.
The relief sought by the Applicant was 12 months’ compensation. I am called upon to considerer the evidence holistic not in piece meal. In these proceedings as stated above the onus is on the Applicant.
In terms of section 193 [4] of the LRA an arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering re-instatement, re-employment or compensation.
When all evidence is considered and taking into account ELRC Collective Agreement No 3 of 2016, for procedural unfairness, one month compensation is justifiable. For substantive unfairness 9 months’ compensation is justifiable. The Applicant is currently earning R69 998 – 18 as per bundle A pg 118. [ Salary advice] In total its ten months’ compensation. [R69 998-18 X 10 ] = R699 981 – 80 The Applicant is an employee of Respondent no1, therefore Respondent no1 is in possession of the bank details of the Applicant.

AWARD

The Applicant managed to discharge the onus placed on him, in that the 1st Respondent committed unfair labour practice relating to promotion. The 1st Respondent is ordered to pay the Applicant R699 981-80. [ SIX HUNDRED AND NINETY-NINE THOUSAND, NINE HUNDRED AND EIGHTY-ONE RAND AND EIGHTY CENTS.] within 21 days upon receiving this award. To be paid into the Applicants bank account, as per Respondent No1’s records.
The appointment of 2nd Respondent is not set-aside.
Signature: