30 January 2026 – ELRC592-25/26GP

IN THE MATTER OF EDUCATION LABOUR RELATIONS COUNCIL
ELRC592-25/26GP

BETWEEN

M.J MASILELA Applicant

AND

GAUTENG DEPARTMENT OF EDUCATION 1st Respondent

Panelist: Mmeli Danisa
Case No: ELRC 592-25/26 GP
Date of Ruling: 08 December 2025

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

This matter was decided on the papers, pursuant to the directive issued to the parties on 21 November 2025. The dispute concerns an alleged unfair labour practice relating to promotion in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 (“the LRA”).
POINT IN LIMINE/ PRE-LIMINARY ISSUES
There is no preliminary issue.
ISSUE TO BE DECIDED
Whether the Respondent committed an unfair labour practice relating to promotion by disqualifying the Applicant at the sifting stage on the basis that she allegedly used an incorrect post number. If so, what remedy, if any, is appropriate.
BACKGROUND
The Applicant is a Post-Level 3 educator who has been acting as Principal of Olievenhoutbosch Secondary School since 1 January 2024. She applied for the advertised position of Principal in Vacancy Circular 02 of 2024 under post number TS24ED1011.
The Applicant was earning a basic salary of R47 658. 25 completed her GDE2R form by hand. The Respondent’s sifting panel disqualified her application on the basis that she allegedly wrote an incorrect post number (“T524ED1011”).
A grievance was thereafter heard by the District Grievance Committee (“DGC”). The DGC initially accepted that the GDE2R form was correct, but upheld the disqualification based on the alleged incorrect post number. The District Director confirmed the outcome.
No internal appeal was lodged. The post has since been filled.
SURVEY OF EVIDENCE AND ARGUMENTS (SUMMARY OF SUBMISSIONS)
I am not going to give an exhaustive survey of all the evidence and arguments presented during the arbitration hearing. What follows is a concise summary of evidence relevant to my findings only.
APPLICANT
The Applicant argues that,
9.1. The Respondent’s initial disqualification (incorrect GDE2R form) was factually wrong and conceded at the DGC.
9.2. The subsequent reliance on the alleged incorrect post number is subjective, contextually incorrect, and irrational.
9.3. Her handwritten “S” resembles a “5”, but within the context of GDE post numbering, only TS exists for Tshwane South; there is no “T5” district.
9.4. The intention is clear, and the Respondent’s interpretation elevates a minor clerical issue into a material defect, contrary to principles of fairness and rationality.
9.5. Reliance is placed on a Labour Court judgment adjudicated between Solidarity union on behalf of members and Gauteng Department of Education dated 05 November 2024, which allegedly set aside an irrational sifting decision and ordered the process to be redone.
9.6. The Applicant elected to refer the matter to the ELRC due to a lack of confidence in the DGC process.
9.7. The Applicant seeks a redo, re-advertisement, or structurally corrective relief.
RESPONDENT
The Respondent argues that,
10.1. Vacancy Circular 02 of 2024 requires strict compliance with the unique 10-character post number, which is a mandatory instruction.
10.2. The form reflects “T524ED1011”, and the Applicant’s handwriting shows a clear distinction between “S” and “5” elsewhere on the form (e.g., “SACE” vs “991185”).
10.3. The DGC acted within the Collective Agreement 1 of 2021 and confirmed non-compliance.
10.4. The Applicant failed to lodge a mandatory appeal within 5 working days as required by clause 17.5.1(d)(vii) of the Collective Agreement.
10.5. The post has been filled, granting structural relief would prejudice learners, the school, and the appointed candidate.
10.6. The employer complied with the prescripts and applied its discretion properly.
10.7. The dispute should be dismissed.
ANALYSIS OF EVIDENCE AND ARGUMENT
Section 138 (7) of the Labour Relations Act 66 of 1995 requires an arbitrator to issue an award with brief reasons. What follows is a summary of evidence and arguments presented at the arbitration hearing.
Applicable legal framework
Section 186(2)(a) of the LRA defines an unfair labour practice to include unfair conduct by the employer relating to promotion.
In determining unfairness, the following principles apply:
13.1. Fairness and rationality govern all administrative recruitment decisions (Allpay v SASSA )
Paragraph 27: “The doctrine of legality… requires that all exercises of public power should not be arbitrary or irrational… the means selected must be rationally related to the ends sought to be achieved.”
Paragraph 28: “A decision that is not properly informed or based on a correct appreciation of the facts cannot be said to be rational.”
Paragraph 56: “Procurement policies and requirements must be applied reasonably and fairly; formalistic or rigid approaches may undermine the constitutional imperative of fairness.”
Paragraph 89: “Even where a decision-maker enjoys discretion, that discretion must be exercised in a manner that is rationally connected to the purpose for which it is conferred.”
13.2. Interpretation of documents must be contextual, purposive, and sensible (Natal Joint Municipal Pension Fund v Endumeni Municipality ).
Paragraph 18: “Interpretation is the process of attributing meaning to the words used in a document… having regard to the context provided by reading the particular provision… in the light of the document as a whole and the circumstances in which it came into existence. Whatever the nature of the document, consideration must be given to the language used, the context in which the provision appears, and the apparent purpose to which it is directed.”
13.3. Employment decisions must not elevate technical defects into barriers where intention is clear (McBride v Minister of Police ).
Paragraph 38: “Administrative decisions must be lawful, reasonable, and procedurally fair. This requires attention to substance, not the elevation of formality over justice.”
Paragraph 39:“A rigid or mechanical reliance on a technical reading that defeats the purpose of the legislation is inconsistent with the principle of legality.”
13.4. In promotion cases, the test is whether the employer acted arbitrarily, capriciously, or without a fair process (Ndlovu v CCMA ).
Paragraph 24: “In promotion disputes, the question is whether the employer’s conduct was arbitrary, capricious, or unfair.”
Paragraph 25: “It is not for the arbitrator to decide who is the better candidate, but whether the employer acted unfairly in reaching its decision.”
The post number error: Is the disqualification substantively fair?
Having inspected the documents, including the handwritten form, the disputed character could visually resemble either an “S” or a “5”. The Applicant’s own handwriting exhibits aesthetic variation.
However, the question is not how the character looks in isolation. It is:
15.1. Would a reasonable sifting panel, applying their minds, conclude that the Applicant applied for a non-existent post “T5…”?
Several objective facts are significant, namely:
16.1. There is no district beginning with “T5” in the GDE.
16.2. All posts under Tshwane South begin with TS, including the post in question.
16.3. The Applicant is the acting principal of the very school whose post was advertised.
16.4. The post number appears in the vacancy circular attached to the same application pack.
16.5. The sifting panel initially disqualified her for an unrelated, incorrect reason (wrong GDE2R form), which was later abandoned.
These facts make it irrational and unreasonable to conclude that the Applicant intended to apply for a non-existent post.
Allpay v SASSA strongly supports the fact that a sifting decision must be rational, contextually based, and not mechanical.
A strict, literal reading that ignores context contradicts the Endumeni approach and the principle that administrative decisions must be sensible and purposive.
McBride clearly and directly supports the fact that disqualification based on a clerical defect is not permissible when substantive fairness points the other way.
The Respondent’s subsequent reliance on comparing different handwritten “S” characters is insufficient. Handwriting is inherently variable, and the issue must be assessed holistically, not mechanistically.
I therefore find:
22.1. The disqualification based on the alleged incorrect post number was unfair, irrational, and inconsistent with the principle of substantive fairness in promotion disputes.
Grievance vs Appeal
The Collective Agreement 1 of 2021 is clear:
23.1. A grievant must appeal the decision of the District Director within 5 working days (clause 17.5.1(d)(vii)).
23.2. The appeal suspends implementation.
The Applicant did not lodge an appeal. This omission has consequences, namely:
24.1. The internal process was not exhausted.
24.2. The District Director’s decision crystallised.
24.3. The post was lawfully filled.
24.4. Undoing or suspending the appointment at this stage is not competent relief for an arbitrator (see Arends & Others v South African Local Government Bargaining Council & Others ).
Paragraph 30: “An arbitrator does not have the power to set aside an appointment or to order the removal of an incumbent employee.”
Paragraph 31: “Once an appointment has been made and the employment relationship has crystallised, it is not competent for an arbitrator to undo it.”
24.5. However, failure to appeal does not cure the underlying unfairness. It limits the remedy, but does not erase unfair conduct.
Relief
The Applicant seeks a redo or re-advertisement. This is not feasible because:
25.1. The post has been filled.
25.2. Unseating an incumbent is not permissible in the absence of fraud or unlawfulness.
25.3. The internal remedies were not exhausted.
25.4. The ELRC cannot substitute the SGB or HOD’s appointment once finalised.
However, section 193(4) of the LRA gives an arbitrator discretion to award compensation where reinstatement or promotion is not practicable.
Where unfairness occurred, but structural relief is impossible, compensation is the appropriate remedy (see South African Police Service v Solidarity obo Barnard & Others ).
Paragraph 36: “Where the arbitrator finds unfairness in a promotion process but reinstatement or appointment is not possible, compensation is the appropriate remedy.”
Paragraph 38: “Compensation serves as solatium for the loss of a fair opportunity, not for patrimonial loss.”
Given that the unfairness occurred at the sifting phase, compensation should reflect, as follows:
28.1. The loss of a fair opportunity to compete,
28.2. The seriousness of the Respondent’s irrational disqualification,
28.3. The fact that the Applicant was acting principal and met eligibility requirements,
28.4. The limitation arising from failure to lodge an appeal.
A solatium-type award is appropriate.
FINDING
Having considered all the evidence, argument, the applicable legal principles, and the authorities governing unfair labour practice disputes relating to promotion, I make the following findings.
The Respondent committed an unfair labour practice by disqualifying the Applicant at the sifting stage based on an alleged incorrect post number. The evidence establishes that the disqualification was irrational, overly formalistic, and inconsistent with principles of substantive fairness, particularly when viewed against the contextually obvious intention on the GDE2R form, the Applicant’s acting role at the very school in question, and the absence of any plausible interpretation that she applied for a non-existent post beginning with “T5”.
The approach adopted by the sifting panel contravenes the principles in:
32.1. Allpay v SASSA: administrative decisions must be lawful, rational, and procedurally fair.
32.2. Endumeni Municipality: documents must be interpreted contextually and purposively, not literally to the point of irrationality.
32.3. McBride v Minister of Police: minor technical defects should not be elevated into substantive grounds for exclusion.
32.4. Ndlovu v CCMA: in promotion disputes, fairness requires that decisions be non-arbitrary and based on proper application of mind.
The Respondent’s conduct, therefore, materially impaired the Applicant’s right to a fair opportunity to compete, a principle repeatedly affirmed in promotion jurisprudence.
However, the Applicant did not lodge the mandatory appeal under clause 17.5.1(d)(vii) of Collective Agreement 1 of 2021. This does not cure the unfairness but limits the range of competent remedies, as the post has since been filled and the ELRC cannot unseat an incumbent in the absence of fraud or illegality, as illustrated in Arends v SALGBC.
Where the unfairness cannot be corrected by structural relief, compensation equivalent to a solatium-type award is the only competent just and equitable remedy, consistent with:
35.1. SAPS v SSSBC: where reinstatement/promotion is not feasible, compensation is appropriate.
35.2. Section 193(4) of the LRA: an arbitrator may award compensation when the primary remedy is not practicable.
35.3. Section 194(4) of the LRA: compensation must be “just and equitable” in the circumstances.
An 8-month solatium-type amount is appropriate, given:
36.1. The seriousness of the Respondent’s irrational exclusion,
36.2. The Applicant’s clear suitability and eligibility,
36.3. The prejudice suffered through the loss of a fair opportunity, and
36.4. The fact that her failure to lodge an internal appeal reduces the degree of fault attributable to the employer.
In awarding compensation, I am guided by paragraphs 71–76 of the ELRC Guidelines on Promotion Arbitrations, which provide that solatium for non-patrimonial loss must be conservative and generally ranges between R5 000 and R20 000, and should ordinarily not exceed R50 000 even in more serious cases.
Given the seriousness of the procedural unfairness, the Applicant’s clear eligibility, and the prejudicial impact of the irrational sifting decision, but also considering her failure to lodge an internal appeal, I find that the maximum conservative solatium permitted under the Guidelines is appropriate.
Accordingly, the Applicant is awarded R50 000.00 as solatium for the loss of a fair opportunity to compete in the promotion process
FINDING
I make the following award:
40.1. The Respondent, the Gauteng Department of Education, committed an unfair labour practice in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 by unfairly disqualifying the Applicant at the sifting stage of the promotion process.
40.2. Structural relief is not competent as the post has already been filled, and the Applicant did not lodge the mandatory internal appeal in terms of clause 17.5.1(d)(vii) of Collective Agreement 1 of 2021.
40.3. The Respondent is directed to pay the Applicant the amount of R50 000 (less statutory deductions) as solatium for non-patrimonial loss arising from the unfair labour practice.”
40.4. Interest will accrue on the aforesaid amount from 01 January 2026, in accordance with section 143(2) of the LRA.
This award is final and binding and may be enforced in terms of section 143(1) of the LRA and may be made an order of the Labour Court in terms of section 158(1)(c).
No order is made as to costs.