30 January 2026 – ELRC492-25/26WC

Case No: ELRC492-25/26WC

In the matter between

Hebrew Godden Applicant

And

Department of Education Western Cape 1st Respondent

NF Coetzee 2nd Respondent

Arbitrator: A.Singh-Bhoopchand
Heard: 16 September 2025; 7 & 25 November 2025
Date of Award: 15 January 2026
ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

The arbitration hearing concerning an alleged unfair labour practice relating to promotion took place virtually on 7 & 25 November 2025. The matter was initially scheduled for 16 September 2025 but had to be postponed for the joinder of the 2nd Respondent. The hearing adjourned around midday on 7 November 2025 to allow Mr Godden the opportunity to subpoena his witnesses which he had failed to subpoena.
The First Respondent was represented by Ms Lauren Randall, a labour relations official within the Labour Relations Directorate of the Respondent. The applicant, Mr W Hebrew Godden presented his own case. The 2nd Respondent was present and participated in the process.
One bundle of documents was handed in as evidence.
Proceedings were digitally recorded.
The parties signed a pre-arbitration minute.
On the last day of proceedings, the 25th of November 2025, the Applicant requested a postponement of the matter for a further opportunity to bring more witnesses, essentially members of the School Governing Body (SGB) to testify on his behalf and to obtain legal representation. The request was opposed by the first Respondent. The application was denied. It must be noted that the matter had been adjourned previously to afford Mr Godden a further opportunity to subpoena his witnesses, which he had failed to do at the outset. Two SGB members testified on 7 November 2025. At the proceedings on the 25th of November 2025, Mr Godden indicated that he had subpoenaed the relevant witnesses but that they had informed him that they did not wish to testify. Likewise, Ms Randall indicated that the members of the SGB that she had intended to call had also informed her that they did not wish to testify. I also called the witnesses that had been subpoenaed during the process but there was no response to my calls.
Given the reluctance and the difficulties experienced by the parties in securing their witnesses, I allowed both parties to call witnesses that they had not initially listed in the pre-arbitration minute. The Applicant argues that he applied for legal representation at the third sitting as the matter had become complex due to the circuit manager being called to testify. The Applicant had the right to obtain legal representation at the outset of this process but he chose not to do so. The nature of the dispute did not change at the third sitting. In fact, the allegations against the circuit manager and her alleged interference in the process have always been central to the Applicant’s dispute. There was therefore no basis for the Applicant’s sudden desire to obtain legal representation.
The request for postponement was denied, and the matter proceeded to conclusion save for closing arguments which the parties submitted in writing, the last of which was received on 7 December 2025.
I requested an extension of time for the submission of the award.

ISSUE IN DISPUTE

I must decide whether the First Respondent committed an unfair labour practice in the filling of the Principal’s post at the Ceres Secondary School.

BACKGROUND

The Applicant is currently employed on a fixed term contract as a post level 1 educator in the Northwest Province. He applied for the advertised Principal’s post at the Ceres Secondary School. He was one of the two candidates that was interviewed for the post. Three candidates were shortlisted for the post, but one candidate withdrew .
The Applicant was unsuccessful in his application. Ms NF Coetzee, the 2nd Respondent herein, has been appointed to the post with effect from 1 October 2025.
The issue in dispute as reflected in the signed pre-arbitration minute is as follows:
• Whether the Applicant was informed prior to the date of the interviews that he was required to prepare a presentation and the details thereof.
• Whether the Applicant was given sufficient time during the interview to make the presentation.
• Whether the scores allocated during the interviews were changed at the request of the observer.

Survey of Evidence and Submissions
Applicants’ Evidence

Hugo Gill Frantz: He is a member of the SGB and served on the interview panel for the post. He testified that during the interview, Mr Godden told the panel that he had not been informed that he was required to prepare a presentation. In response, Ms Haker, the circuit manager, confirmed that she had personally sent an email to Mr Godden in this regard and that he had received the email. Mr Godden said that he did not receive the email because his phone was not working.
He testified further that Ms Haker looked at him frequently during the process and shook her head. He felt that he was being intimidated.
He also said that Mr Godden was given less time to make his presentation. Overall, he felt that the process was not fair. After the interviews, they took a break to give Ms Haker time to look at the scores. When they returned from the break, Ms Haker said that she was unhappy with the scores, and she asked them to change the scores. Prior to the changes being made, Mr Godden did meet the 60% mark. He changed the scores by increasing Ms Coetzee’s scores. Mr Godden’s scores remained the same. The whole panel was unhappy but nevertheless changes were made. He informed the panel that Mr Godden would take the school forward with maths. However, Ms Haker said that the post does not require maths. Had the original scores remained, Mr Godden would have been nominated for the post.
During cross examination he confirmed that the minutes indicate that Mr Gooden said during the interview that he did not receive the email notifying him to prepare a presentation in advance of interview because his phone was not working.
In relation to the scores allocated for the prepared presentation and the ‘unprepared “presentation , he said that Ms Coetzee was allocated a higher score for both presentations.
Phillipina Lombard: She is the secretary of the SGB. She testified that the minutes are a true reflection of what transpired at the interview. She also confirmed that Mr Godden stated during the interview that he had not received the email requiring him to prepare a presentation because his phone was not working.
Mr Godden was flustered when he realized that he was unprepared. However, he indicated that he wanted to continue with the presentation, and he did not ask for more time to prepare. In her view it was his own fault that he was unprepared as it was his responsibility to ensure that he had access to emails.
Scores were not changed after their break. She does not know why Mr Frantz would say that scores were changed. Overall Ms Coetzee performed better during the interview.
During cross examination she said that it is not unusual for the resource person to assist with administrative aspects. . Mr Godden was not treated unfairly.
Hebrew John Godden: He is currently a temporary post level one educator teaching Mathematics. Prior to this he was a deputy principal at a school in Kuils River. He resigned to spend time with his mother who was diagnosed with cancer. After she passed on, he applied for the advertised principal’s post.
He was informed by the secretary that he had been shortlisted for the post. Thereafter he did not receive any further communication. The secretary asked him when she passed him in the corridor whether he would be attending the interview and he confirmed that he would be attending. That was the secretary’s opportunity to inform him about the presentation -but she did not inform him. Had the email been sent to him by the secretary, he would have received it as he had received emails from her previously.
During the interviews, he became flustered when he was suddenly informed that he was busy with the incorrect presentation. He was then informed that he ought to have had a prepared presentation in terms of the email that was sent to him. An argument ensued when he informed the panel that he had not received the email. The resource person said that she had proof that the email was sent to him and that he should proceed with the correct presentation. He was rattled but he did not feel comfortable about asking for extra time.
He did not have a fair opportunity to present himself. Candidates must be treated equally and fairly. As he was busy presenting, the timekeeper stopped him and said that his time was up. It transpired however that his time was not up, and he was asked to continue. The unnecessary interruption caused him to lose his train of thought. He found out later that the scores had been changed.

Respondent’s Case

Janette Harker: She is a circuit manager at the Ceres Secondary School falls within her area of jurisdiction. She served as the Department representative and resource person during the process of filling the post. She provided guidance and support to the interview panel.
In this case she had also sent out emails to the candidates inviting them to the interview and informing them of the presentation that they had to prepare for. Although it is not the usual practice for such emails to be sent out by the resource person, she did it in this instance because the School had an acting principal at the time who was not familiar with the process. The emails were sent to the address that was provided by the candidates themselves.
She also conducted training sessions with the interview process with regards to the process to be followed.
At no stage did she change the scores, nor did she instruct the panel to change the scores. . As a resource person she had to be objective and ensure that all candidates are treated equally and fairly. Therefore, she did intervene when candidates went over the allocated time.
During cross examination she said that the onus rests on the candidate to provide the correct email address. An email was sent to the Applicant to address which was provided by the Applicant. The only reason that she engaged with the Applicant during the process was because he said that he had not received the email. In terms of the time-keeping role that she played, she said that she was not only an observer, but she was also the resource person.

Analysis
The Applicable Legal Framework

The Constitution of the Republic guarantees everyone the right to fair labour practices, which right is further given effect through the provisions of section 186(2) of the LABOUR Relations Act (LRA) and the Employment Equity Act. Despite the guarantees, it has been held that the LRA does not create a right or entitlement to be promoted unless there is some agreement or law assuring the employee that right.
The obligation in terms of Section 186(2) of the LRA is to act fairly towards the employee in the selection and promotion process but taking into account that it is the prerogative of the employer to make appointments. The exercise of that prerogative is nonetheless not immune from scrutiny, as instances of gross unreasonableness in its exercise may lead to drawing of inferences of bad faith. To that end, it is trite that central to disputes pertaining to the appointments or promotion of employees is the principle that the courts and commissioners alike should be reluctant, in the absence of good cause, to interfere with the managerial prerogative of employers in making such decisions. Any form of interference should be with objective of dispensing fairness to both parties.
The onus to establish that conduct complained of constitutes an unfair labour practice within the meaning of section 186(2) of the LRA rests on the employee. The employee must therefore be able to lay the evidentiary foundation for his or her claim of an unfair labour practice. Mere dissatisfaction with the outcome of a recruitment or selection process is not sufficient to sustain that claim. The mere fact that the employee has the required experience, ability and technical qualifications for the post is, however, not sufficient , nor is it sufficient for the employee to merely assert that he or she scored higher in the interview process, or some other criterion linked to the selection process. There is still the burden on him /her to demonstrate that the decision to appoint someone else to the post in preference to him or her was unfair. Provided the decision by the employer to appoint one in preference to the other was rational, no question of unfairness can arise.
In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester and Others it was also emphasized that the overall test is one of fairness, and that in deciding whether or not the employer had acted unfairly in failing or refusing to promote the employee , relevant factors to consider include whether the failure or refusal to promote was motivated by unacceptable , irrelevant or invidious considerations on the part of the employer; or whether the employer’s decision was motivated by bad faith , was arbitrary , capricious , unfair or discriminatory ; whether there was insubstantial reasons for the employer’s decision not to promote; whether the employer’s decision not to promote was based upon a wrong principle or was taken in a biased manner; whether the employer failed to apply its mind to the promotion of the employee; or whether the employer failed to comply with applicable procedural requirements related to promotions. The list is not exhaustive.
In addition to the above general principles relating to unfair labour practice disputes, regard must also be had to specific legislation pertaining to the employment of educators. In terms of section 6(1) of the Employment of Educators Act, the ultimate decision to make an appointment is that of the Head of Department (HOD), after receipt and consideration of the recommendations of the SGB. The HOD is the statutorily mandated official who takes decisions on behalf of the Department.
In terms of the process guidance provided in the Personnel Administration Measures (PAM), strict compliance with every element is not the yardstick – fairness is.

Applying the Law to the Facts

I deal firstly with the Applicant’s claim of unfairness around the email that he claims he did not receive. Under section 23 of the Electronic Communication and Transactions Act, an electronic communication is considered “sent” when it enters an information system outside the control of the sender. The rule of receipt is that an email is deemed received when it enters the recipient’s information system. The uncontested evidence was that the email was successfully sent. It is therefore deemed to have been received.
Notably the Applicant’s evidence as to why he did not have sight of the email was conflicting. The minute’s record and witnesses testified that his version during the interviews was that he did not receive the email because his phone was not working. At arbitration he made no mention of his phone. Instead, he suggested that he would have received the email had it been sent by the secretary and not the circuit manager, as he had received previously successfully received emails from the secretary. I understood this to mean that he was saying that the email from the circuit manager went into his spam folder and that he therefore did not “receive” it.
I can safely conclude that the email was sent and that it is deemed to have been received. The employer took reasonable steps to ensure that the Applicant was informed that he had to prepare a presentation. The fact that it was sent by the circuit manager who also happened to be the resource person and not by the secretary is by no means a grave procedural flaw that would render the entire process unfair.
During the interviews the Applicant agreed to continue with the presentation and did not request time to prepare. Yet he now claims that he ought to have been given more time.
In terms of the allegation that the scores were changed at the request of the circuit manager, two members of the panel gave conflicting evidence. It is questionable why Mr Frantz went ahead and made the alleged changes if he had concerns (as he now claims) about doing so. He now claims that the process was unfair because of this, yet he failed to do exercise the power that he had to maintain the integrity at the time. Notably, the Applicant had already achieved a 60% mark when the panel was allegedly asked to change the scores. Although Mr Frantz testified that he changed the scores by increasing Ms Coetzee’s scores he did not say that he was specifically asked to increase her scores – only that he was asked to change the scores. Ms Lombard on the other hand testified that no changes were made to the scores and that they were not asked to make any changes. She maintains that the minutes of the process are a true reflection of what transpired and that the scores allocated were not changed.
In assessing these conflicting versions, I have considered that there is no evidence before me that the circuit manager had any reason to favour the 2nd Respondent or that she bore any ill feeling towards the Applicant.
The Applicant made much of the fact that he is a qualified maths teacher and that he would be able to improve maths at the school. It was correctly pointed out by the circuit manager that math’s is not a core requirement of the principal’s post. One cannot therefore draw any negative inference from her comment. In the context of her role as the Department’s resource person her comment is appropriate.
The Applicant also complained that he was interrupted to be told about the time and this impacted on his train of thought. Overall, I got the impression that the Applicant was nitpicking and grasping at straws in an attempt to build a case simply because he is dissatisfied with the result. Mere unhappiness or dissatisfaction is insufficient to found a claim of an unfair labour practice.
The 2nd Respondent met the requirements of the post, and she performed better than the Applicant during the interviews. On the totality of the factors before me, it is improbable that the scores were changed. The Applicant was given a fair opportunity to compete for the post. I have no reason not to accept the veracity of the minutes and the scores as reflected in them. The decision to appoint the 2nd Respondent was rational and fair

AWARD
The Applicant’s claim of an unfair labour practice is dismissed.