30 March 2026 – ELRC760-24/25GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case Number: ELRC760-24/25GP

In the matter between:

Paballo Minah Bapela Applicant

And

Department of Education Gauteng 1st Respondent

Joseph Linda Gumede 2nd Respondent

ARBITRATION AWARD

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Email: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

[1] The arbitration was conducted over 6 days. The first was on 23, 24 and 25 July 2025. The second sitting was to be on 25 and 26 August 2025, but the matter did not sit because all three subpoenaed witnesses of the Applicant were not in attendance. A ruling was issued compelling them to attend the hearing. The third sitting was on 24 and 25 September 2025. The fourth sitting was on 10 November 2025. The fifth sitting was scheduled for 2 and 3 February 2026, but both witnesses of the Respondent were not in attendance. A directive was issued. The sixth sitting was scheduled for 4 and 5 March 2026. Both parties were in attendance during all the arbitration hearings.

[2] The Applicant, Paballo Minah Bapela (Bapela), was unrepresented whilst the Respondent, Gauteng Department of Education was represented by Mr John Marakalla (Marakalla), a Deputy Chief Education Specialist. The second Respondent, Mr Joseph Lind Gumede was also in attendance and was represented by Mr Fannie Songo (Songo), a SADTU Union Official.

[3] The proceedings were conducted in English and there was a Sepedi interpreter.

[4] The proceedings were digitally recorded and hand written notes were kept.

[5] All witnesses testified under oath.

[6] Both parties submitted a bundle of documents which was admitted on record to the arbitration which I named bundle “R” for the Respondent and bundle “A” for the Applicant. The authenticity thereof was not questioned.

THE ISSUES TO BE DECIDED

[7] The issues that I am to determine following the Pre-Arb minutes, are: (a) whether the Respondent committed an unfair labour practice related to promotion by failing to promote Bapela; (b) Whether Bapela was the most suitable candidate for the position advertised. In making this assessment, I will determine it both procedurally and substantively.

BACKGROUND TO THE DISPUTE

[8] Bapela was an Educator at Lehlabile Secondary School, occupying a Post Level 1(P 1) position and had applied for the Departmental Head position. She had seen an advert under post number TS83ED1052 for the Lehlabile Secondary School. The advertised position was for Technology grade 8 to 9 and Mathematical Literacy grade 10 to 12.

[9] She was interested and she applied for the position as, in her opinion, she met most of the requirements of the position. At that time, she was in the acting position of the same post level for 3 months.

[10] She went to the interview and was not found to be competent for the position as her comparator, Gumede was appointed and not her. She became aggrieved by this and had decided to refer an unfair labour practice dispute to the ELRC in relation to promotion.

[11] Two interviews were scheduled, the first on 3 October 2023 and the second was on 14 October 2023. The reason for the second one was because the first was cancelled.

During Closing Arguments

Both parties submitted their closing arguments in writing, which I had considered in reaching my decision. The parties had to submit their closing arguments in writing on 12 March 2026. The Respondent submitted its closing arguments on 13 March whilst the Applicant submitted her closing arguments on 17 March 2026.

SURVEY OF EVIDENCE

[13] The onus is on the Applicant to prove that, the Respondent’s conduct was unfair towards him in terms of section 186(2) (a) of the LRA.

[14] I am guided by Section 138 (7) (a) of the LRA as amended, to deal only with the evidence that is relevant to the issues in dispute.

The following is a brief summary thereof:

The Applicant’s case
Ms Paballo Minah Bapela (Bapela) was the 1st witness in her case she testified as follows:
[15] She testified that she had seen the Departmental Head position advertised in vacancy circular 08/2023 and the closing date was 24 August 2023. The vacancy circular made her to have interest to apply for the post. She was in a favourable position as she had started acting in the position from July 2023 for a period of 3 months. At their school, they were rotating in the position as colleagues.

[16] She had attended two interview sessions, the first was on 3 October 2023 whilst the second was on 14 October 2023. During the first interview, Mr Kgafane informed her that Mr Nkadimeng and Mr Mokoena were on their way. She started her interview before Mr Hoza could arrive. Mr Hoza and Mr Nkadimeng never arrived at the interview. The first interview was cancelled and she attended the second interview on 14 October 2023. She was asked the same questions and this made her to be favoured by the questions, and in her opinion, she did well during the second interview.

[17] She testified that she was a woman and in terms of the Employment Equity Plan Act 55 of 1998, she fully qualified for the position. She testified that the panel did not look at her ability as males were the only ones afforded the opportunity. She was unfairly discriminated because she was a woman. She testified that Gumede’s (comparator) qualifications were not vetted. She referred to table 5(f) of bundle I, and concurred that males of all races were under represented in Post level 2 (P2) positions within the Gauteng Department of Education.

DURING CROSS – EXAMINATION

[18] She testified that she understood the Collective Agreement and that recruitment processes were regulated by the Collective agreement. She testified that the information on her GDER form was true and correct. She testified that Collective Agreement 1/2021 works with vacancy circular /08 of 2023. She testified that the Respondent appointed the Gumede without copies of qualifications commissioned. It was put to her that the Deputy Director of THRS will come and testify and she responded by stating that, she would be waiting for her to do so.

[19] She testified that she compared herself with Gumede and that she was the most suitable candidate in terms of experience, broader experience, knowledge, skills and qualifications. She testified that she was not supposed to be appointed just because she was a woman, but that she met the requirements to be appointed. She disputed the fact that she was fairly treated. She testified that Ms Nethonzhe told her that the interviews were cancelled. She conceded that the recommendation of the SGB was in line with the advert and that the recommended candidate should meet the curricular needs of the school.

[20] She conceded that the suitability of the candidate would be informed by what the school requires. It was put to her that the Respondent had applied its mind carefully when deciding which candidate to appoint and she disputed this version by the Respondent. She concurred that her qualifications and experience are at the centre stage in this case. She did not agree with the version of the Respondent that there was nothing wrong with the qualifications of Gumede. She conceded that the most suitably qualified person should be recommended for the position and that she was that person.

[21] She testified that she does not agree with the version of the Respondent that there was no apprehension of biasness when the selection panel ran with the process. It was put to her that she was very evasive. She disputed this version by the Respondent. She conceded that Gumede scored more as compared to her. It was put to her that the Deputy Director would come and testify that Gumede was the most suitably qualified candidate and she responded by stating that she will be waiting for her.

[22] She testified that she does not possess a qualification in Mathematical Literacy. She conceded that there was a difference between Mathematics and Mathematical Literacy. She concurred that Gumede had more years of experience than her. Marakalla had put it to her that, she averred that she does not have a qualification in Mathematical Literacy and yet she argued that the Respondent did not apply its mind in appointing Gumede.

The 2nd witness of the Applicant was Ms Maseka Dlamini (Dlamini)

[22] She testified that she was also an usher during the interviews. Her responsibilities was to welcome interview candidates as well as the panel who came to the interviews. She could not remember how many people she ushered. There were documents that were used for the interviews process even though she could not recall the documents. The document she used had a list of candidates. She testified that she does not recall how many candidates were called.

During Cross – Examination

[23] She testified that she was an admin clerk at the school. She was in the school governing body representing PS staff. She was tasked by the School Governing Body (SGB) to take care of the people who came to the interviews, specifically by Mr Gafane. She did not possess material evidence to assist the commissioner as she did not hear and see what transpired in the interview process. She had mental health issues and was on and off at the school to perform her duties. She conceded that she was an irrelevant witness. She testified that she was not familiar with the document on page 95 of bundle “R”. She conceded that she could not assist the arbitration as to whether Gumede, the comparator of Bapela was a suitable candidate for the post. She conceded that she cannot assist the arbitration as to whether the Respondent misconducted itself in not appointing Bapela.

[24] During the interview, her duties was simply to usher candidates to the library. She did not deliver a testimony regarding issues raised in 3.2 of bundle “AR”. She had nothing to testify upon, regarding whether or not Bapela was a suitable candidate for the position and whether the Respondent misconducted itself, in failing to appoint Bapela. She was an irrelevant witness to assist in dealing with the issues Bapela, called her to testify upon. She submitted that she did not see and hear what transpired in the interview process.

The 3rd witness of the Applicant was Ms Shibambo (Shibambo)

[25] She was part of the SGB, teacher component. She was not part of the panel during the interview process. In 2023, Mr Masilela was the chairperson of the SGB. She testified that, the chairperson and the deputy chairperson were co-opted into the SGB. Mr Nkadimeng and Mr Mokone were also co-opted in the SGB, in the parent component. She testified that she was in the School Management Team (SMT). She testified that the post that was advertised was for mathematical literacy and technology. The SGB would sit and elect the panel members for the interview. She was not present during the meeting of the selection of the panel. She conceded that Mr Gafane was the chairperson. She could not remember as to whether he was outside the province or not. She testified that she was not part of the shortlisting.

During Cross – Examination

[26] She testified that she did not have any role during the recruitment and selection process. She was a member of the School Management Team of Lehlabile Secondary School. The SGB approved the GDE79. The GDE79 was where the post was advertised as per the school needs. She testified that the document on page 12 of bundle “R” was the GDE79. She testified that the information on page 12 was true.

The Respondent’s case
The 1st witness of the Respondent was Mr Kubyane (Kubyane) and he testified as follows:

[27] He was the School Principal of Lehlabile Secondary School. He had being working at the school for 35 years. He knew Bapela as a colleague. As the principal and a member of the SGB, he was a primary contributor in the curriculum needs of the school. He testified that, as the principal of the school, he was in the position of knowing the curriculum needs of the school. As the principal, he was the conductor of the curriculum. He testified that, the principal as the curriculum director, he was in a better position to know the curriculum needs of the school. He testified that a meeting of the SGB was called, to gazette the advertised posts. The document on pages 13 and 14 of bundle R was the selection of the interview panel. The panel was selected on 19 September 2024. The document on page 12 was the gazette, wherein the post number was TS83ED1052 of Lehlabile secondary School.

[28] He testified that, the 2 subjects which were advertised was Technology and Mathematical literacy. Technology was for grade 8 to 9 and Mathematical Literacy was for grade 10 to 12. He testified that, the panel came with the criteria for shortlisting. Five candidates were shortlisted. Bapela had a BEd. Senior Phase from University of Pretoria in Mathematics, Chemistry and Fundamental Numeracy. She also had BEd. Honors from the University of Pretoria, specializing in Mathematics, Science Technology and Indigenous Science. She also had a BEd Honors in Environmental Science from the University of Pretoria specializing in Environmental Science Education.

[29] He testified that Gumede had a grade 12 specializing in Mathematics, Life Sciences, Geography and Business Studies. Gumede also had a Senior Primary Teachers Diploma from Rand Afrikaans University (RAU), specializing in Mathematics ,Natural Sciences, English, Computer Literacy, Adult Basic Education Certificate from University of South Africa(UNISA), specializing in Adult Basic training 1 – 4, Advance Certificate from Nelson Mandela Metropolitan University, specializing in Mathematical literacy and a Masters of Business Administration (MBA) degree, specializing in Management and Organisational Behaviour(OB) research and methodology.

[30] He testified that the two candidates, being Gumede and Bapela, had basic qualifications. In addition, Gumede had a Management Qualification, being an MBA degree. Gumede also had a foundation in Mathematical literacy and Bapela had a foundation in Pure Mathematics. He testified that, Gumede as compared to Bapela, met most of the requirements for the advertised position. The minimum requirements in terms of experience for the position was 3 years. Bapela misrepresented herself in that, on her application form she wrote that she worked at Unisa and her subject was BEd. He testified that Gumede was better experienced because he had 15 years of experience, whilst Bapela had only 7 years of experience with BEd (TPN3704). He testified that Gumede had the most experience in terms of his previous years of experience, totaling 27 years of experience, whilst Bapela had a total of 15 years of experience.

[31] He testified that, after the shortlisting of suitable job candidates, the next process was the interviews which took place on the 14 October 2023. Prior to the interviews, questions were formulated and that everyone was satisfied with the process. He testified that the document on page 18 of Bundle “R” was the questions and possible answers. The process was transparent. He testified that Mr Hoza from SADTU also attended the interview process.

During Cross-Examination

[32] He knew Bapela as a colleague and also as a Mathematics Literacy Teacher. He testified that the requirements of the post was Mathematics Literacy for grade 10 to 12 and Technology grade 8 to 9. Bapela was the acting Departmental Head during the advertisement of the post. He testified that Bapela did not perform to the expectation of the panel. He knew the curriculum needs of the school and his testimony regarding this, was not disputed by Bapela.

[33] He testified that there was a panel which was selected and he corroborated his testimony with documentary evidence. He referred to the minutes of the selection panel. He referred the arbitration to page 14 of Bundle “R”, where there was a list of members of the panel that were elected in the SGB meeting on 19 September 2024. Marakalla referred him to page 100 of the same bundle, clause 8.1 of the Collective Agreement no. 1 of 2021 and subsection 8.1.1 which provided that “in terms of section 23(9) of the South African Schools Act, 1996 the number of parent members had to be more than the combined total of other members of the governing body/interview committee who have voting rights. He testified that the Respondent had complied with the provisions of the Collective Agreement.

The 2nd witness of the Respondent was Ms Rishile Chauke (Chauke) and she testified as follows:

[34] She worked at Tshwane South District in the position of Deputy Director for THRS which stands for Transversal Human Resources Services. She had been appointed as such since 01 March 2020 at Sedibeng District. She testified that her core duties included inter alia, oversee appointments, filling of posts, implement service benefits, manage records for appointed employees and oversee registry and employee health and wellness. She testified that, her role after receiving the file was to verify the file to assist the delegated authority when appointing a department head (DH).She testified that the document on page 12 is a copy of the vacancy circular for post number TS83ED1052. She testified that the subjects that were advertised was Technology grade 8 to 9 and Mathematical Literacy grade 10 to 12.

[35] She testified that, GDE79 entails the curricular needs at the school level. She testified that the GDE 79 goes through the SGB Chairperson, Principal and the cluster leader. She testified that, the selection panel will shortlist and interview job candidates. She testified that the role of the SGB was to make a recommendation. They have a system called MIE which they use to load the information for verification purposes. She testified that they also do criminal checks as well. They will also compare the qualifications with the advertisement. She testified that they check the experience and the grades one has taught or have been teaching. If the first candidate does not meet the requirements they will check the second and the third.

[36] She testified that she was familiar with the Collective Agreement 1/2021. She referred the arbitration through the qualifications of Gumede and that of Bapela. She testified that Gumede had specialized in Mathematical Literacy and that Bapela did not possess Mathematical Literacy. She testified that Gumede was better qualified as compared to Bapela. She testified that Gumede has 15 years teaching the subjects and had an overall of 27 years in teaching. She testified that the candidate who best suited the position was Gumede. She testified that the total score of Gumede was 22 and Bapela had 12.4

During Cross-Examination

[37] She testified that they do the vetting process. She testified that the document on bundle A1 is the vacancy circular. She did not agree that they appointed Gumede without verification. She testified that they do verification/vetting under MIE. She testified that, Gumede had a SACE certificate and the date of issue was in the year 2000. Bapela had put it to her that the academic record of Gumede was not certified and she responded by stating that, on page 42 of Bundle “R”, was the certified copy of same. She testified that it was certified on the 02 October 2023. [38]She testified that the vetting was done by MIE and DHET. Bapela had put it to her that she was discriminated and she responded by stating that unless if she a male as per table 5 on page 8 of bundle I, she would be in agreement with her that she was discriminated against.

[38] She testified that Bapela was not discriminated and that Gumede met the minimum requirements. The decision was not based on gender but on merit. Bapela did not challenge the fact that the GDE79 addressed the needs of the school and that GDE79 was aligned with the advert.

The 3rd witness of the Respondent was Mr Andries Nkadimeng (Nkadimeng) and he testified as follows:

[39] He worked at Tshwane South as the District Director. He had 4 years cumulative experience. He was previously a Circuit Team Manager for circuit 3 before he was appointed as the District Director. He was responsible for the overall management, administration, leadership, and management of the district. His duties included a number of other things inter alia, curriculum delivery in schools and HR matters.

[40] He had a delegated responsibility from the Head of Department in terms of the recruitment processes. His duties also included the appointment of PS up to level 5, post level 1 as well as departmental heads and that, in the case of principals and deputy principals, he would only recommend but had no power to appoint. He testified that Collective Agreement 1/2021was used for recruitment processes. He testified that he was familiar with the Collective Agreement. He testified that the document on page 12 of Bundle “R” was a copy/extract from the open Vacancy Circular 08 of 2023.

[41] He testified that document A1 was a copy of the Vacancy Circular and page 12 on bundle “R” was developed from the Vacancy Circular. He testified that, he knew about post number TS83ED1052. The post was advertised on Vacancy Circular 08 of 2023. He testified that, the requirement for this post was Technology grade 8 to 9 and Mathematical Literacy grade 10 to 12. The requirements for the post were prescribed not in any order. He testified that, the first requirement was the issue of experience and the minimum experience for the Departmental Head was 3 years. The second requirement was relevant experience.

[42] He testified that he appointed based on the recommendation of the SGB. Before appointing, he had to check as to whether the recommended candidate had requisite qualifications. He testified that, the recommended candidate had to meet the Gauteng Department Equity Plan before an appointment was made. He had appointed Gumede because he met the minimum requirements. His appointment was based on the recommendation of the SGB.

[43] He testified that Gumede had an Advanced Certificate in Education, specializing in Mathematical Literacy. He testified that Bapela had an achievers award from Lehlabile Secondary School and that was not a qualification. He could not appoint someone based on the achiever’s award and that, he needed someone to have a qualification for the position.

[44] He testified that item 11 on page 77 was a certificate of attendance for 2 and half hour for Mathematical Literacy for Bapela. In comparing the two, Gumede had a qualification in the required subject. He testified that in terms of employment laws, one cannot appoint someone based on a certificate of attendance and that they needed a qualification.

[45] He testified that Bapela was not overlooked and that, she was given a fair chance by being shortlisted. He testified that by looking at her application form, she was not even supposed to be shortlisted. She was given a fair chance to compete. He testified that the process was a regulated process and it was fair and objective.

During Cross – Examination

[46] He testified that he started acting in 2003 and he was appointed in 2025. He testified that he was the Circuit Team Manager since 2015 and he was appointed an Institutional Development Support Officer (IDSO) in 2007. He testified that he would check the experience of each job candidate. The file would be submitted to HR and that was where the verification was done. He testified that on page 40 bundle “R”, Bapela had didactics, which was a teaching method and that, one cannot teach without a method. He testified that they have MIE to verify qualifications and that he was not qualified to verify.

[47] He disputed the fact that, the comparison between Gumede and Bapela was not fair. He testified that the advert was Mathematical Literacy, which Bapela did not possess. He testified that Ms Bapela had a certificate of attendance for 2 hours and half. He testified that, that was a training certificate and not a qualification. Gumede was the most suitable candidate for the advertised position

ANALYSIS

[48] Section 186(2) (a) of the LRA refers to unfair labour practice as “any unfair act or omission that arises between an employer and an employee involving: an unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee”.

[49] In the matter before me, Bapela had applied for the position of Departmental Head at Lehlabile Secondary School, in response to an advertisement under post number TS83ED1052, for Technology grade 8 to 19 and Mathematical Literacy grade 10 to 12. The position was advertised on Vacancy Circular 08 of 2023. She was not found appointable whilst his comparator, Gumede was appointed for the position. Aggrieved by this, she referred a dispute to the ELRC, alleging that, the Respondent committed an unfair labour practice by failing to appoint her, but in the alternative, had appointed Gumede.

[50] The basis of Bapela’s contention was that, she was of the view that she was the most competent and suitable candidate for the position. She testified that, the fact that she had attended two interviews, being the first on 3 October 2023 and the second on 14 October 2023, she was advantaged as the same questions were asked in both the interviews. The first interview was unfortunately cancelled.

[51] The Respondent disputed this version by Bapela that she was the most suitable candidate by stating that, many factors are considered in deciding who the best candidate would be. Factors such as the skill the candidate possesses, the years of experience, leadership qualities as well as the candidates qualifications. In the Respondent’s opinion, Gumede had the most experience, totaling 27 years whilst Bapela only had 15 years of experience. Gumede had a qualification in Mathematical Literacy whilst Bapela had a qualification in pure Mathematics and had only done a 2, 5 hours training for Mathematical Literacy. It needed someone with a qualification, but not a training certificate on olny 2.5 hours. In addition, Gumede had an MBA qualification, which in the Respondent’s opinion, was a leadership qualification.

[52] The position advertised required someone with leadership skills as it was a Departmental Head position. On a balance of probability, I find in favour of the Respondent, and find that, Bapela was not the most suitable candidate for the position advertised under post number TS83ED1052 for the Lehlabile Secondary School.

Procedural Fairness

[53] Under Procedural Fairness, the Respondent followed a fair process, being guided by both the Collective Agreement 1/2021, Circular 9 of 2020 as well as by the Gauteng Department Equity Plan which provided that, where any gender is in the minority regarding Departmental Head positions, priority must be given to that gender in appointments. Table 5 on page 8 of Bundle “I” of Circular 9 of 2020, provided such guidance.

Substantive Fairness

[54] Under substantive fairness, Bapela testified that, Gumede was seen as the most suitable candidate, whilst her, Bapela was in her opinion, the most qualified and most suitable. She however conceded that she did not possess a qualification in Mathematics Literacy and that, her years of experience was less than that of Gumede. In Matsokoleng v Shoprite Checkers (2013) 2 BLLR 130 (LAC), the court held that “appropriate considerable weight should be placed on uncontested evidence”.

[55] Based on the evidence presented to me by both parties, I find that the Respondent did not commit an unfair labour practice related to promotion by not appointing Bapela. She did not possess the necessary skills, qualifications and the experience which her comparator, Gumede possessed. Gumede was the most suitable job candidate for the position advertised under post number TS83ED1052 for the Lehlabile Secondary School.

FINDING

[56] Having listened to the evidence presented before me and having looked at the requirements of the position advertised, I am of the opinion that, the Applicant, Paballo Minah Bapela, was not the most suitable candidate for the position and that, the Respondent, Gauteng Department of Education, has committed an unfair labour practice by not appointing the Applicant, Paballo Minah Bapela in the position of Departmental Head for Technology grate 8 and 9 and Mathematical Literacy grade 10 to 12, at Lehlabile Secondary School.

AWARD

[57] The Respondent, Gauteng Department of Education (GDE) did not commit an unfair labour practice relating to promotion against the Applicant, Paballo Minah Bapela.

[58] The Applicant, Paballo Minah Bapela, is not entitled to relief and the s case is dismissed. the Council is directed to close the Applicant’s file.