IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No: ELRC75-25/26GP

In the matter between

SADTU obo MANDISA MOLOI Applicant

and

GAUTENG DEPARTMENT OF EDUCATION First Respondent

AMY KEI Second Respondent

Arbitrator: Pumeza Ndabambi

Date of award: 30 June 2025

SUMMARY: Labour Relations Act 66 of 1995 – Unfair Labour Practice in terms of section 186(2)(a) – unfair conduct relating to promotion.

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

1. This matter came before the Education Labour Relations Council (ELRC) for arbitration, in terms of section 191(5)(a)(iv) of the Labour Relations Act 66, 1995, (the LRA). The arbitration was heard on 19 June 2025, virtually through Microsoft Teams. The Applicant, Ms Mandisa Moloi, was represented by Mr Selokelo Malema, an official of SADTU. The First Respondent, Gauteng Department of Education and the Second Respondent, Ms Amy Kei, were represented by Mr Peter Nkosi, the Labour Relations Officer.
2. The parties agreed to submit written closing arguments by no later than 19 June 2025 and only the Applicant’s arguments were received by the due date.
3. The proceedings were electronically recorded

BACKGROUND TO THE ISSUES

4. The Applicant is a Post level 1 (PL1) Educator, earning R35 560. 55 per month and she applied for a position of Departmental Head (PL2) for Bonaero Primary School in Ekurhuleni North District and was shortlisted and invited for interviews. She was not successful in her application. The Applicant upon receiving the outcome after the interviews, referred a dispute to the ELRC of an unfair labour practice relating to promotion, in which she is challenging the following:

a. That the interview panel was was not properly constituted, procedurally; and
b. That the First Respondent failed to advertise the position in time because at the time the incumbent did not qualify. They waited for her to qualify and that amounted to post reservation.

5. The Applicant prays for the appointment to be set aside and process to start afresh or compensation.

SURVEY OF EVIDENCE AND ARGUMENT
Applicant’s Version

6. The version of the Applicant was led through the Applicant’s own testimony and a bundle of documents;
7. Ms Mandisa Millicent Moloi (the Applicant) testified that the vacancy leading to the appointment of the Second Respondent was advertised in Circular 5 whilst the position was vacant in December 2023. The Applicant was acting in the position and was called together with the Second Respondent to the Principal’s office and informed the position would be advertised. At the time the Second Respondent did not qualify to apply for the position. The vacancy did not appear in Circular 2 of 2024.
8. During shortlisting there were 2 parents and there was 1 apology from Mr Chipeta, the SGB Chairperson. Ms Makgakwe was the Secretary and Mr Chipeta was not in the attendance register because he was not present in the shortlisting meeting. In the minutes of the interviews there were 2 parents Makgakwe, as panel Chairperson and Matenche as SGB panellist and Mr Boshomane the Principal and Mrs Cleaver as Educator. There is no apology recorded and that there were only 2 parents, the Principal and Ms Cleaver were the Educators. The Applicant concludes that parents did not tender any apology on the day. The letter supposedly from Mr Chipeta is not dated and is unofficial. The letter should have been typed and anyone can write and the signature is not clear.
9. The Applicant read the provisions of section 23(9) of the South African Schools Act (SASA) and indicated that Collective Agreement 1 of 2021 comes from SASA and the panel did not follow the provisions during shortlisting. The same requirement was also contravened during interviews. During shortlisting it was claimed that the apology was sent. The letter does not state what it is for. The apology was for interviews and it appears from the shortlisting there was no apology letter from Mr Chipeta.
10. In terms of selection there was failure to apply procedure and interviews should have been conducted as per agreed procedure. The Applicant believes she qualified for the position as she holds a Bachelor of Education and Postgraduate Diploma in Education (PGCE), she taught English for 17 years from 2008 in Horizon High, 2009 in Norkham Park and from 2010 in Bonaero Park she taught English and Creative Arts & Drama, Afrikaans and Life Skills. She believes she was prejudiced by the non-appointment. The position should have been advertised in Circular 2/2024 because it was already vacant. In the Applicant’s view there was job reservation and the procedure was not followed as the panel was wrongly composed and biased in favour of the Second Respondent. The Applicant also acted in the position and did a good job and she qualifies to teach all the subjects. The First Respondent’s actions were unfair and biased.
11. Under cross-examination the Applicant stated that she does not know the Second Respondent’s qualification and that she taught Afrikaans in Horizon High. She also stated that the Second Respondent never taught Life Skills in Bonaero Park and also disagreed that Afrikaans Educators are scarce. The Applicant also reiterated that the apology appears in the shortlisting minutes and no letter in interviews. The SGB Chairperson would not have known about the emergency during interviews during shortlisting. The Applicant confirmed that in terms of Collective Agreement 1/2021 the parent component must have one more member. The position was only advertised in July by the District and it works hand in hand with the school.
12. The Applicant admitted that she was shortlisted and fairly scored but there had to be more parents.

Respondent’s Version

13. The Respondent led the evidence of two witnesses and a bundle of documents. The evidence is summarised below:
14. Mr Puti Boshomane (Mr Boshomane) testified that he is the Principal at Bonaero Park Primary School and has held the position for 5 years and had 5 years experience in the SMT as Departmental Head and was Deputy Principal at Bonaero Park Primary School for 5 years. The Applicant is one of the candidates that applied for the Departmental Head position and is currently a Post Level 1 Educator teaching English and Creative Arts in Grade 7.
15. Mr Boshomane called all Language Educators regarding the position that became vacant in December 2023 and that they are to act in the position for 3 months each. In December they could not start as they were left with 11 days into the year. The GDE79 form was done on 11 December 2023 for the District to advertise. They file it as evidence of submitting to the department for advertising. In the meeting with Language Educators he informed them that there is a vacant post and they will act, whoever is interested, so that he does not seem to prioritise one person. The Applicant and the Second Respondent indicated their interest.
16. The position was advertised in July 2024 although the GDE79 was submitted in December 2023 and Mr Boshomane cannot say why it was not advertised sooner. Both candidates are in the SGB and were both asked to recuse themselves. After that 4 parents were elected to be in the panel, 1 Educator and Mr Boshomane as Principal and asked Ms Channing to be the Scriber.
17. During shortlisting, 2 parents came. He checked Mr Chipete, the SGB Chairperson, who was unable to attend as he had an emergency in Limpopo. He has a property in Limpopo. He contacted him 30 minutes before commencing the shortlisting and the minutes reflect that he is unavailable. On the day they developed criteria to be adopted for shortlisting and the subject requirements were Afrikaans FAL, English Home Language and Life Skills. They looked for candidates who have one of the languages and Life Skills. They shortlisted 5 candidates. The Applicant and the Second Respondent were among the shortlisted candidates.
18. The Second Respondent joined the school in 2018 when Mr Boshomane was Deputy Principal and she taught Afrikaans and Physical Education (which is part of Life Skills). Mr Chipete submitted a handwritten apology that he is not available for interviews and shortlisting. The document is signed by him. The requirements in terms of the Resolution is that the same panel member must sit in shortlisting and interviews, a new person cannot be brought. The composition therefore became 2 parents, 1 Educator and Mr Boshomane as Principal. In terms of the requirements of section 23 of SASA there were 2 parents, 1 Educator and Principal as Resource person.
19. The scores of the first three candidates are as follows:
    a. Ms Kei (2nd Respondent) – 87.5%
    b. Ms Moloi (Applicant – 83.7%
    c. T. Mahabaly – 79.46%
20. The candidates all got a fair chance and were scored on the same questions and the scores were used to determine No. 1. The panel must agree and the first recommended candidate was based on scores. The candidates were scored on the same questions and based on expected answers. Questions were agreed on the day. There is no general right to promotion even if one acted in a position and action was not one of the criteria adopted. The school submitted the GDE79 to the District timeously and has no say on when they must advertise. Mr Boshomane said he cannot think of any reason to prejudice the Applicant.
21. Under cross-examination he confirmed that the Second Respondent did not qualify at the time the position was vacant because she was a temporary Educator and further that he sent the GDE79 to the District. Further that they all scored except the Scriber, so 4 out of 5 people in the interviews scored. He said that he represented the Department. He confirmed that he contacted Mr Chipeta during shortlisting. The Second Respondent became permanent later after the GDE79 was submitted. He maintained that policy and procedure was followed in respect of the recruitment in question.
22. Mr Percival Sipho Nkosi (Mr Nkosi) testified that he holds a position of Chief Personnel Officer at Circuit 3. He stated that the DGE79 form must be signed by the Principal and the SGB. It is a notice of advertisement of a position. There can be no advertisement without a GDE79. If a position is on the vacancy list it means the school submitted the GDE79 form. The department provides training on recruitment process to the schools. The requirement is that there must be one more member on the parent component in shortlisting and interviews. If one parent does not pitch then the parents must decide, 2 parents and 2 Educators can score.
23. With regards to why a position can be advertised late, like in this case, where the GDE79 form was sent in December and advertised in July and not in the January circular, Ms Nkosi mentioned that sometimes they ask schools to resubmit informed by e.g. budgetary issues, austerity measures, vacancies may be cut. The panel must develop criteria, it can be scores only or scores and deliberations. In this matter the criterion was scores only and highest scoring candidate was the Second Respondent and was ranked No. 1 and the Applicant ranked No. 2. He confirmed that the principal represents the District Director, the committee determines the Chairperson and the committee agrees on whether the principal can score.
24. Under cross-examination he confirmed that the principal is a departmental representative and enjoys both powers of a departmental representative and panellist. He stated that when one is in a committee there are no titles as the committee decides who does what. The Educator component scored. Further on the submission of the GDE79 form he stated that some can be submitted and not advertised and be made part of the next vacancy list.

ANALYSIS OF EVIDENCE AND ARGUMENT

25. Section 185 of the LRA provides that every employee has a right not to be unfairly dismissed or subjected to unfair labour practices. This section gives effect to section 23 of the Constitution of the Republic of South Africa. The dispute referred is an unfair labour practice relating to promotion and the employee bears the onus of proof.
26. On procedure the Applicant argued that the panel was not properly constituted as a result there was 1 less parent in the interview committee and the principal added to the Educator component wherein there were 2 Educators and 2 parents. Substantively the Applicant is of the view that the position was held back to allow the Second Respondent to qualify to apply for the position, thereby confirming job reservation in favour of the Second Respondent.
27. In so far as the procedural deviations, PAM – Chapter B5 outlines the following steps for recruitment and selection:
    a. Vacancy identified
    b. Advertisement (B.5.2)
    c. Sifting by the department (B.5.3)
    d. Shortlisting by Interview Committee (B.5.4)
    e. Interviews by Interview Committee
    f. Recommendation by SGB
    g. Appointment by HoD (B.5.5)
28. In this matter all the stages outlined above were followed. Some stages were affected by circumstances, for example Mr Chipeta’s absence during shortlisting due to an emergency in Limpopo. That caused the panel to be 1 parent short and 2 parents participated in the process. The panel consisted of 2 parents, 1 Educator, 1 Resource person (the Principal), representing the department. Section 16A(1)(a) states as follows:
    “The principal of a public school represents the Head of Department in the governing body when acting in an official capacity as contemplated in section 23(1)(b) and 24(1) of the SASA”.
29. Section 23(1)(b) of the SASA provides as follows: –
    “Subject to this Act, the membership of the governing body of an ordinary public school comprises —–
    (b) the principal, in his or her official capacity;”.
30. PAM Chapter B.5.4.2 provides that the Interview Committee must comprise—
    B.5.4.2.1 One departmental representative (who may be the school principal) as an observer and Resource Person.
    B.5.4.2.2 the principal of the school (if he is not a departmental representative), except in cases where he is an applicant.
31. In this matter there were 2 parents scoring, principal as departmental representative and 1 Educator. There was a Scriber. The requirements as challenged by the Applicant in so far as that there must be 1 more parent SGB member, I find that the panel agreed on their criteria, and also agreed on how they would comprise the panel, given the circumstances with Mr Chipete. The principal is not a representative of the Educator component but acts in his official capacity and in this matter was a Resource Person and departmental representative. There was therefore 1 more parent as required by section 23(9) of the SASA. There were also circumstances presented in respect of Mr Machete’s absence, I am not persuaded by the argument that his letter of apology must have been written in a specific format. The fact that it had no date does not make it inadmissible as it addressed circumstances relating to the process that was unfolding. There was an apology from Mr Chipete that was accepted by the panel.
32. The Applicant was shortlisted and was afforded an opportunity to compete for the position as all the steps in the recruitment process were followed as required in PAM Chapter B5.
33. I must reiterate the fact that substantively there is no evidence that shows that the Applicant was the best of all candidates and should have been appointed. On the substantive part based on the lack of evidence in this regard, coupled with the fact that compared to other candidates the Applicant came second in terms of performance and the scoring is not challenged, there is no nexus between the alleged irregularities and the failure to promote the Applicant. Substantive fairness requirements in the matter have therefore been met by the First Respondent, as employer.
34. In Observatory Girls Primary School & another v Head of Dept: Dept of Education, Province of Gauteng, Case No 02/15349 [2006] JOL 17802 (W) it was held that:
    “The question then arose whether the multitude of the applicable laws and regulations which prescribed the procedure to be followed in the appointment of new teachers were peremptory or merely directory. In either event, the firsther question arose whether exact compliance was required or whether substantial compliance was sufficient. Accepting for present purposes, that the prescribed procedure was peremptory, strict compliance was not necessary. All that was called for was substantial compliance.

Held, further, that the procedure that the school had followed fully achieved the purposes of the legislation of ensuring that there was a fair and transparent procedure in place for appointing teachers to fill vacancies.”

35. In this matter the attack on the composition of the interview panel is therefore without merit as there were 2 parent panellists and 1 for other components, based on an agreed process. In line with the sentiments in the Observatory Girls matter substantial compliance with PAM was achieved in the recruitment process leading to the appointment of the Second Respondent. There was further no prejudice to any of the candidates as the process substantially complied with the required procedures.
36. In Ndlovu v CCMA & others [2000] 12 BLLR 1462 (LC), the Court held at par 1462:
    “It can never suffice in relation to any such question for the complainant to say that he or she is qualified by experience, ability and technical qualifications such as university degrees and the like, for the post. That is merely the first hurdle. Obviously a person who is not so qualified cannot complain if they are not appointed.

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. That will almost invariably involve comparing qualities of the two candidates. Provided a decision by the employer to appoint one in preference to the other is rational it seems to me that no question of unfairness can arise”.

37. From the case cited above there is no evidence that the decision to appoint the Second Respondent was not rational. The Second Respondent was already in the school, and qualified to apply. Both the Applicant, the Second Respondent and others participated in the recruitment process and all got a fair opportunity and in terms of them indicating they had no questions or qualms regarding the process that unfolded up to the interviews. There can therefore be no prejudice if the Applicant was happy with the process at that stage.
38. In Goliath v Medscheme (Pty) Ltd (1996) ILJ 760 (IC), it was held that it is quite possible that the assessment made of the candidates [by the employer] and the resultant appointment will not always be the correct one. However, in the absence of gross unreasonableness which leads the court to draw an inference of mala fides, this court should be hesitant to interfere with the exercise of management’s discretion.
39. In Noonan v SSSBC and others (2012) 33 ILJ (LAC), it was held that there is 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 constitutes an unfair labour practice. If the employee is not denied the opportunity to compete for a post, then the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.
40. It is also trite that where an employee fails to prove that he was the best of all the candidates who applied for the job, then in order to the employee to prove an unfair labour practice relating to promotion, he or she should generally, at least demonstrate that there was conduct that denied him a fair opportunity to compete for a post, or conduct that was arbitrary or motivated by an unacceptable reason, or that the successful candidate was dishonest and misled the interview panel or employer.
41. It is not proved, based on the fact that the employer advertised in July, that this was to accommodate the Second Respondent to qualify to apply for the position. Circumstances that inform when an advert can be delayed were shared by Mr Nkosi. Mr Boshomane indicated that he submitted the GDE79 in December 2023 and after that the process was out of his hands. He also called both the Applicant and the Second Respondent when the position became vacant and offered an equal opportunity to act in the position and asked them to indicate their interest in the position. He provided reasons for doing so, that, he did not want to be seen to be prioritising one person.
42. Section 28(2) of the Constitution requires consideration of childrens’ interests in matters affecting them. Setting aside an appointment would therefore affect the learners in the school, and based on the reasons given about the remedy sought will affect stability in the school. The Applicant also does not know what qualifications the Second Respondent has, and can therefore not show any irrationality or bias on the part of the panel. The Applicant also does not challenge the fact that she was the best of all candidates interviewed.
43. The decision to appoint the Second Respondent can therefore not be interfered with considering that the school is stable and the interests of the children are served.
44. In the circumstances, I make the following award:

AWARD

45. The conduct of the First Respondent, Gauteng Department of Education, in not promoting the Applicant, Ms Millicent Mandisa Moloi, does not constitute an unfair labour practice.
46. The Applicant, Ms Millicent Mandisa Moloi, is not entitled to any relief.

PUMEZA NDABAMBI
PANELLIST: EDUCATION LABOUR RELATIONS COUNCIL