IN THE ELRC ARBITRATION
BETWEEN: ELRC671-25/26GP

ENTHIA MKHABELA “the Applicant”
and

DEPARTMENT OF EDUCATION – GAUTENG “the Respondent”

ARBITRATION AWARD

Case Number: ELRC671-25/26GP
Date of award: 04 December 2025
ELRC Arbitrator: Gcina Mafani

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration was scheduled for the 27th of October 2025 and proceeded as such. Both parties were present, the applicant was represented by Mr. Johannes Leshata Seanego the Union Official of SADTU and the First Respondent was represented by Mr. George Mbonde the Employee of the Respondent and the Second Respondent Ms. Mpho Matladi was represented by Mr. William Mmereki Malope the Union official of SADTU.
2. The arbitration was held at Soshanguve Teacher’s Centre to mitigate against postponements due to network and connectivity issues .
3. The arbitration was finally concluded on the 4th of November 2025
4. Before the start of the arbitration process, the Respondent submitted their bundle of documents which was later marked Exhibit “A”, this was the only bundle as the Applicant was intending to use the same bundle.
5. The parties agreed to file their closing arguments by close of business on the 14th of November 2024. Respondents 1 and 2 agreed to submit one closing document.
6. The submissions of both parties were carefully considered but will not be repeated herein as contents basically mirror what was put to the parties during the leading of evidence and cross examination in the arbitration.

ISSUE TO BE DECIDED

2. The arbitration is in respect of a referral by the Applicant of an alleged unfair labour practice as provided for in section 186(2)(a) of the Labor Relations Act 66 of 1995 (LRA.)
3. The Commissioner is required to determine whether the first Respondent committed an unfair labour practice relating to promotion in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 when it failed to promote the Applicant to an HOD Post NO: TW25ED1061 and if so the appropriate relief.

BACKGROUND

4. The Applicant Enthia Mkhabela is a PL1 educator at Lesedi Primary School.
5. She applied for a departmental Head position, Post No: TW25ED1061 for Foundation phase with Setswana as a requirement at Lesedi Primary School. She was shortlisted and subsequently interviewed for the Post. During the Interviews the Applicant was ranked no 2 by the Interview Committee and her name was included on the list of recommended Candidates.
6. The Department appointed Ms. Mpho Matladi to the position.
7. The Applicant contends that the selection process was flawed, as one of the individuals serving on the interview Committee, Mr. Sefamela, was no longer a member of the School Governing Body (SGB) at the time. Accordingly, he was not eligible to participate in the interview process.
8. Dissatisfied with her non appointment, the Applicant referred a dispute to the ELRC for unfair labour practice.

APPLICANT’S EVIDENCE AND ARGUMENTS

9. The Applicant testified under oath and stated that she is a qualified educator, holding a Junior Teacher’s Diploma as well as an ACE certificate. She further stated that she has 24 years of teaching experience, has served on multiple committees and is currently the LTSM Coordinator, a role she has occupied for the past eight years.
10. She explained that she is a class-based educator who teaches four subjects per day, manages assessments, and consistently meets deadlines set by the school. Based on her qualifications and experience, she believes she was better suited for the Departmental Head position.
11. The Applicant testified that a former SGB (School Governing Body) member, Mr. Sefamela, was improperly included in the SGB and subsequently participated in the interview process. She stated that once his children left the school, he no longer qualified to be an SGB member. The Principal brought him back to assist with safety and maintenance, but this was never agreed to by the parents’ body.
12. She further testified that Mr. Sibanyoni, a Clerk and Finance Officer at the school, is also not an SGB member to her knowledge. She stated that his name appearing on the list of SGB attendees is incorrect, as he does not form part of the SGB.
13. When referred to bundle R, pg. 40, the Applicant acknowledged that according to Section 23(6) of the South African Schools Act, the SGB may co-opt a member or members of the community to assist in discharging its functions.
14. She was further referred to bundle R pg. 36, where she conceded that according to Section 23(6) of the SASA, membership of the Governing Body comprises of the Co-Opted members and that Sefamela and Sibanyoni were Co-Opted into the SGB to assist the SGB to discharge its duties.
15. Under cross examination, the Applicant conceded that she had been shortlisted, interviewed, and ranked second in the recommendation made by the SGB to the District, which meant that her experience and qualifications were considered by the interview Committee. When referred to bundle R, pg. 42, she acknowledged that, according to the ELRC Collective Agreement No 1 of 2021, the District Director’s failure to appoint a Human Resources Official does not invalidate the recruitment process.
16. The Applicant was referred to pages 28, 29, 31, 32, and 33 of R, she acknowledged that the 2nd Respondent had the relevant qualifications in Setswana for the post and further had managerial experience having acted for 6 months in that position.

SECOND WITNESS FOR THE APPLICANT’S CASE
MS. TUMELO MATLALA An Educator at Klipfontein Primary

17. She testified that she is a grade 1 teacher, teaching English, Sepedi, Life Skills and Maths. She has five years’ experience as an Educator.
18. She testified that she was a member of the SGB when she was at Lesedi Primary School from April 2024.
19. That the Principal recommended the names of Mr Sefamela and Mr Sibanyoni to be Co-Opted as members of the School Governing Body in 2024. She stated that it was their first time as members of the SGB and so they did not understand that they could object, save to say there was no objection by any of the members of the SGB.
20. She testified that the SGB serves a period of 3 years, the SGB is allowed to replace any of its members when the vacancy arises, that is the time they can Co-Opt a member having looked at their qualities
21. She raised the issue of balance of the SGB as the Parent component is supposed to be in majority according to the Collective Agreement 1 of 2021.
22. She testified that Mr. Sefamela served two terms in the SGB, for the third term he was Co-Opted by the Principal to assist with safety issues, then used in the interview committee as well. She reiterated that Co-Option should have been done by the SGB.
23. She testified that the minutes on page 17 are not a true reflection of what happened at the AGM meeting.
24. She testified further that Mr. Sibanyoni who was not present and had not signed the ratification signed the Declaration of Confidentiality.
25. Under Cross Examination she conceded that she was reassigned in January 2025 to another school and therefore cannot talk to the events of 2025 at Lesedi.
26. She further conceded that the absence of the Human Resources Person does not invalidate the recruitment process.
27. The witness was referred to pg. 36 the bundle and the respondent submitted that the SGB can and does have Co-Opted members, to which the witness responded by saying legally Co-Opted members.

THIRD WITNESS FOR THE APPLICANT’S CASE
TSAKANI CAROLINE MASINGI (Educator and Departmental Head at Lesedi Primary)

28. She testified that she joined the school in 2005, started at foundation phase and she worked closer to the Applicant.
29. She described the Applicant Ms. Mkhabela as a hard worker, and a LTSM Coordinator for over 10 years.
30. She testified that she did not understand why Mr. Sefamela who was not selected as a panel member was allowed to sign the attendance register, she alleged that the minutes are fraudulent because Mr. Sefamela was not nominated he was simply parachuted by the Principal into the SGB.
31. Mr. Sefamela is not the only person of concern, but Mr. Sibanyoni as well who is the school Administrator and Finance Officer. She testified that Mr. Sibanyoni is not an SGB member or an Educator.
32. She conceded under cross examination that she was not a member of the SGB and did not participate in any of the SGB meetings and therefore she is not in a position to testify about the minutes of the SGB and its fraudulent state.
33. She conceded that she did not know how Mr. Sefamela and Mr. Sibanyoni got to be in the SGB as she is not an SGB member.
34. She conceded that the Applicant was ranked second by the interview Committee and was in the list of recommended candidates.
    FOURTH WITNESS IN THE APPLICANT’S CASE
    BETTY LEBOHANG (SGB MEMBER, SOSHANGUVE EAST SECONDARY)
35. She testified that she is a treasurer for the SGB in Soshanguve East secondary School.
36. She testified that Mr. Sefamela is an SGB member at Soshanguve East. She testified that she has known him for the past three years, she was Co-Opted last term and she found Mr. Sefamela there as an existing SGB member.
37. She testified that, this year however he did not qualify to be a member of the SGB, but he was again selected because two of their SGB members were unable to take office as SGB members.
38. She conceded that she was not part of the recruitment process at Lesedi and did not know anything about that.

RESPONDENTS EVIDENCE AND ARGUMENTS
1st Witness for the Respondent
JIMMY RAMBOHO (Chairperson of the SGB Lesedi Primary)

39. He testified that Page 13 has the list of names of people who were selected to be in the interview panel and unfortunately the names of Mr. Sefamela and Mr. Mkhabela were erroneously omitted.
40. He testified that page 15 is the attendance register of the SGB meeting which sat to make the selection of the interview Committee.
41. He testified that the SGB was a full complement and did not have any vacancies at the time. Mr. Sefamela’s and Mr. Sibanyoni’s names were proposed by the Principal of Lesedi Primary Mr Pheta. All the SGB members supported and endorsed the proposed names to be Co-Opted into the SGB.
42. He confirmed by reading an extract from the SASA section 23, which states that the SGB can Co-Opt members.
43. He confirmed by reading an extract from the ELRC Collective Agreement 1 of 2021 Clause 8.1.2 (iii) which states that the panel consists of SGB members with the exclusion of teachers who have an interest”
44. He testified that Clause 8.1.1 contradicts what was read on page 36 and stated that if there is a contradiction, the Act always supersedes the Collective Agreement, and therefore the extract from SASA supersedes the Collective Agreement.
45. He testified that the normal process of nominations is followed when there is a vacant position in the SGB, if however, the SGB has a full complement, then members can be Co-Opted as per the need of their expertise.
46. He testified that Ms. Mkhabela was ranked number 2 by the interviewing Committee.
47. The interview Committee submitted three names, which were the names of the top three in the interviews to the District. The Applicant’s name was amongst the three submitted names. The work of the SGB is done upon submission of the recommended names.
48. The department has the power to select from the names recommended.
49. He submitted that the recruitment process was fair to all and particularly to the Applicant because she was shortlisted, interviewed, and recommended. Nothing could have been unfair with the process.
50. Ms. Matladi had Setswana, and the Applicant didn’t. Ms. Matladi has Setswana as her home language in her certificate at the University. That was taken into consideration.
51. Under cross examination the witness was asked about the parent teacher components in the SGB, he submitted that they followed the SASA recommendations and SASA is silent on the numbers.
52. He reiterated that Mr. Sefamela and Mr. Mkhabela were selected to be part of the panel, their names were erroneously omitted, Mkhabela was selected to be the Usher. The declaration of Confidentiality is proof they were selected.
53. The Witness was asked about his signatures which did not look the same on different documents, and he confirmed that sometimes he is not available to sign off certain documents, when that happens, he usually authorises the SGB Secretary to sign on his behalf.
54. He reiterated that the two names were Co-Opted based on the needs of the SGB.

SECOND WITNESS FOR THE RESPONDENT’S CASE.
LINDELANI BONGANI MDLOLO (The Secretary of the SGB)

55. Mr. Mdlolo testified under oath and stated that he is the Secretary of the SGB, and he is part of the teacher component.
56. Page 13 is the selection of the interview panel, some of the names were erroneously omitted by him, those are the names of Mr. Mkhabela who was the usher on that day as well as Mr. Sefamela. He apologised for the error and stated that he takes full responsibility for the error.
57. He testified that page 15 is the attendance register of the SGB meeting, the purpose of this meeting was to select the interview committee.
58. He testified that the meeting of the 17th of October 2024 was to prepare for the AGM budget.
59. He testified that the SGB Co-Opted Mr. Sefamela for safety reasons at the school as he lived close to the school and was able to attend to emergencies, and he had the necessary experience. Mr. Sibanyoni was Co-Opted for Finance and Administration duties. The SGB treasurer was not familiar with that role, and she needed assistance and Mr Sibanyoni was brought in to assist her.
60. He testified that the SGB members were all in agreement with the proposal of Mr Pheta. He stated that if someone had raised a different name, they would have taken it to a vote, however because everyone agreed, there was no need, the proposal was carried.
61. He read page 41 Extract from the ELRC Collective Agreement 1 of 2021 and testified that any member of the SGB can be part of the interview Committee except educators who have an interest and have applied for the advertised post.
62. He testified that the Applicant Ms. Mkhabela was ranked number two by the Interview Committee. The SGB submitted the names of the three candidates that were in the top three to the District. The Head of the Department chooses and appoints a suitable candidate from the recommended three names, regardless of the recommendation by the SGB. The final decision is taken by the District.
63. Under cross examination the Representative submitted that the Applicant was more experienced than the 2nd Respondent, and the witness declined to answer that question stating that he signed a declaration of Confidentiality.
64. He reiterated that nothing prohibits the Co-Opted members of the SGB to take part in the interviews.

THIRD WITNESS FOR THE RESPONDENT
PHETA MOYAHABO OBED (The Principal of Lesedi Primary School)

65. He corroborated the evidence of the two witnesses and testified that page 13 is the list of the selection panel. Two members are missing in that list Mr. Sefamela and Mr. Mkhabela. Mr. Mkhabela was an usher on the day.
66. He confirmed that the SGB was a full complement and there were no vacancies. Mr Sefamela and Sibanyoni were Co-Opted as a result of his proposal. He had proposed the two names because there was a need for stringent security measures and the Treasurer needed assistance. He stated that the two names were accepted by all the members of the SGB and there were no objections.
67. He testified that the Collective Agreement 1 of 2021 and SASA seem to be in contradiction and if such occurs, the Act supersedes the Collective Agreement.
68. He testified that the Applicant Ms. Mkhabela was shortlisted, interviewed, and recommended to the District as one of the candidates eligible for appointment.
69. He testified that the post was Setswana Foundation phase the Second Respondent’s home language is Setswana and she studied Setswana at University. The Applicant did not have any experience in Management, yet the second Respondent has 6 months experience as the Head of Department.
70. Under Cross examination when asked about the teacher-Parent ratio in the SGB, he stated that high schools and Primary Schools differ, when they elect, they elect 6 members, but they have an option to Co-Opt which can increase the number. When there is a need, the SGB can Co-Opt without limitation because the number of Co-Opted members is not specified.
71. The Applicant’s Representative submitted that the Applicant Ms. Mkhabela had acted in an HOD position although it is not written on the form. The witness responded by saying it was the responsibility of the Applicant to indicate her experience on the form, neglecting to include that cannot be blamed on the interview committee or anyone else. He reiterated that the procedure followed was fair, everyone was given a fair chance and the Applicant was ranked number 2 by the interview committee and her name was amongst the recommended.

ANALYSIS OF EVIDENCE

72. It is trite that the employee bears an onus to prove an unfair labour practice as defined in section 186(2) of the Labour relations Act (the 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 the applicable jurisprudence and as envisaged in the law.
73. Section 186(2)(a) 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 dismissal for reasons relating to probation) or training of an employee or relating to the provision of benefits to an employee.
74. I am required to determine whether the First Respondent acted unfairly or not in its recruitment processes. Whether the Applicant was treated unfairly during the process and whether the First Respondent acted fairly or not in appointing the second respondent into the HOD position.
75. In the present matter the Applicant testified that she applied for the position of a Departmental Head Post no: TW25ED1061 for Foundation Phase with Setswana as a requirement which she was qualified for, went through an interview process and was amongst the preferred three candidates, whose names were sent to the District for selection. The Applicant was not appointed as only one candidate could be appointed.
76. On the side of the Applicant three witnesses were called. The first witness being the Applicant who testified that she is qualified for the post. In her testimony, the Applicant averred that certain members of the SGB were not duly or lawfully appointed, and that these individuals were, none the less, selected to constitute part of the interview committee. The Applicant, however, failed to establish or demonstrate the manner in which the alleged irregular composition of the SGB prejudiced her interests. The mere presence of individuals who had been Co-Opted as SGB members does not, in itself render the recruitment process procedurally unfair, absent evidence showing that such individuals acted to her detriment or were, in any way opposed to her appointment.
77. The First Respondent, on the other hand, established that the process complied with the applicable procedural requirements. The Applicant was duly shortlisted, interviewed and included among the three candidates whose names were forwarded to the District for selection and appointment.
78. In terms of Employment of Educators Act 76 of 1996 subsection c, it states that the Governing Body must submit in order of preference to the Head of the Department:
    (i) At least three names of recommended candidates or
    (ii) Fewer than three candidates in consultation with the Head of Department
    Subsection (f) States that Despite the order of preference in para (c) above and subject to para (d) the Head of department may appoint any suitable candidate on the list. The fact that the Applicant’s name was included in the names recommended to the Head of Department means that any of the three candidates recommended by the School Governing Body could have been appointed.
79. As a legal concept unfairness cannot exist in abstraction. Therefore, an applicant in the promotion dispute also needs to establish a causal connection between the alleged irregularity or unfairness and the failure to promote. To do so she needs to show that, but for the irregularity or unfairness she would have been appointed to the post. This necessarily means that she must show that she was the best of all the candidates who applied for the position.
80. The Applicant Ms. Mkhabela argued that it was unfair for her not to be appointed, yet the appointment is the prerogative of the employer after proper processes have been followed.
81. In George vs Liberty Life Association of Africa Ltd (1996) 17 ILI 571 (IC), the Court held that “an employer has a prerogative or wide discretion as to whom he or she will promote or transfer to another position. The Courts should be careful not to intervene too readily in disputes regarding promotion and should regard this an area where managerial prerogative should be respected unless bad faith or improper motive such as discrimination are present
82. The Statutory obligation to make the final appointment vested in the District, irrespective of the SGB’s recommendation.
83. In the matter of Aries v CCMA and others (2006) 27 ILJ 2324 (LC) our Labour Court held that there are indeed limited grounds upon which an arbitrator or a Court may interfere with a discretion which had been exercised by a party competent to exercise that discretion, The reason for this is clearly that the ambit of the decision-making powers, inherent in the exercising of a discretion by a party, including the exercise of the discretion, or managerial prerogative of an employer, ought not be curtailed. It ought to be interfered with only to the extent that it can be further demonstrated that the discretion was not properly exercised. The court further held that an employee can only succeed in having the exercise of the discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for unsubstantial reasons, or based upon any wrong principle, or in a biased manner.
84. The evidence further established that the Applicant Ms. Mkhabela was not more suitably qualified than the second Respondent. The Second Respondent’s home language is Setswana, and she pursued Setswana as an academic discipline at University level. The Applicant led no evidence to demonstrate that her qualifications or competencies exceeded those of the Second Respondent.
85. The Respondent submitted that the Second Respondent possessed relevant experience in her capacity as the Head of Department (HOD). It was only during arbitration that the Applicant alleged that she had also acted in an HOD position, however, this was not reflected in her application form nor supported by any documentary proof. The selection committee assessed all candidates solely based on the information contained in their application forms and the documents attached thereto. Even at this stage of the proceedings, the Applicant failed to furnish any documentation confirming that she had acted in the post. In any event, such information had it been available would not have altered the outcome of the appointment decision.
86. In this case I am satisfied that at the time the Second Respondent was better qualified than the Applicant.
87. In Provincial Administration Western Cape (Department of Health and Social Services) vs Bikwani and Others, the Court held “there is considerable judicial authority supporting the principle that courts and adjudicators will be reluctant, in the absence of good cause clearly shown, to interfere with the managerial prerogative of employers in the employment selection and appointment process”
88. Whether an employee also needs to prove that she was the best candidate in order for an arbitrator to order that the process must be repeated its unclear. In KwaDukuza Municipality vs. SALGBC where a post was filled without following the collectively agreed procedures for advertising, the Court did not order the process to be repeated but merely ordered R5000 compensation. The possibility of repeating the process was however never raised.
89. In the absence of any direct Labour Court authority on the point, I am however prepared to accept that in the event of a serious procedural irregularity, it is indeed possible for the arbitrator to order that the process must be repeated without it being necessary for the Applicant to show that she is indeed the best candidate or that she would necessarily have been appointed had it not been for the irregularity. This however does not mean that such orders should be made indiscriminately simply because there was some form of procedural irregularity.
90. Ordering that the process must be repeated is a drastic remedy that disrupts the lives of the learners and educators. It is therefore my view that in an unfair labour practice dispute relating to promotion, an arbitrator must not order that the process must be repeated unless persuaded that the Applicant stood a realistic chance of being appointed. This is a sensible approach because it not only protects the rights and interests of the aggrieved educator, but also the educators who have gone through the selection process and have a realistic chance of being appointed.
    FINDING
91. The Applicant, Ms. Mkhabela, failed to show on a balance of probabilities that:
    (i) She was better qualified to be appointed in the Head of Department post No: TW25ED1061
    (ii) The presence of Mr Sibanyoni and Mr. Sefamela in the SGB then subsequently in the Interview Committee prejudiced her in any way.
    (iii) She was treated unfairly by the Interview Committee.
    (iv) That the Department of Education Gauteng, committed an unfair Practice against the Applicant in not promoting her to post number TW25ED1061
92. I accordingly make the following award
93. AWARD
94. This application is dismissed.

GCINA MAFANI
Arbitrator 04 December 2025
ELRC671-25/26GP