Panellist: Themba Manganyi
Case No.: ELRC553-24/24GP
Dates of Hearing: 30 April 2024, 01, 02, 14 and 15 August 2024,
19 November 2024, 09 December 2024, 12 February 2025,
23 April 2025, 09 and 10 June 2025 and 04 August 2025
Date of Arguments: 15 August 2025
Date of Award: 25 September 2024

In the Arbitration between

MOIRA STEENKAMP APPLICANT

and

HEAD OF DEPARTMENT: GAUTENG DEPARTMENT OF EDUCATION

and 1ST RESPONDENT

ELIZNA BOSHOFF
2ND RESPONDENT

Details of hearing and representation

1. This is an arbitration award for an alleged unfair labour practice dispute referred to the Education Labour Relations Council (“the Council”) by the Applicant, Ms Moira Steenkamp (“Ms Steenkamp”). Mr Renier Botha (“Mr Botha”), from Renier Botha Attorneys, represented the Applicant. Ms Charmaine Trent (“Ms Trent”), the Labour Relations Officer, represented the 1st Respondent, Gauteng Department of Education. Ms Elizna Boshoff (“Ms Boshoff”) was joined in these proceedings as the 2nd Respondent.
2. The arbitration proceedings were conducted on 30 April 2024, 01, 02, 14 and 15 August 2024, 19 November 2024, 09 December 2024, 12 February 2025, 23 April 2025, 09 and 10 June 2025 and 04 August 2025 at Monument Primary School in Krugersdorp under the auspices of the Council. The proceedings were conducted in Afrikaans and English and Mr Musa Myeza assisted with interpretation services.
3. The parties submitted bundles of documents and called witnesses to testify. The Applicant’s bundle was marked as Bundle A and the Respondent’s bundle was marked as Bundle R. At the end of the proceedings, parties requested to submit their closing arguments in writing on 15 August 2025. The closing arguments were duly received. The proceedings were recorded and the recordings thereof were retained by the Council.

Issue to be decided

4. I am enjoined in these proceedings to determine whether the 1st Respondent subjected the Applicant to an unfair labour practice. In the event that I find in favour of the Applicant, I will have to determine the appropriate relief.

Preliminary issue/s

5. These proceedings were initially heard by Commissioner G. T. Phalane who sadly passed on before the proceedings were concluded. The parties did not prefer to restart the process because of the substantial evidence that was already tendered. The Council duly appointed me to finalize the proceedings.
6. Ms Boshoff, the 2nd Respondent, resigned from the impugned position during the proceedings. Therefore, she was excused from the proceedings because she no longer had any substantive interest in the outcome of this dispute. Mr Botha and Ms Trent did not object that Ms Boshoff be excused.

Background

7. Ms Steenkamp is employed as a PL2 Educator at Ebenhaeser Primary School (“the School”) earning a salary of R425 235, 00 per annum. She acted in the positions of Deputy Principal and Principal at the school. The 1st Respondent advertised the Deputy Principal’s post for the School on 17 April 2023 under Circular 4/2023 and the post number was GW/43ED1012. Ms Steenkamp applied for the position. However, she was not shortlisted. Hence, she referred this dispute.
8. Ms Steenkamp is challenging both the procedural and the substantive fairness of the recruitment process. She alleged that the panel was biased and that the procedure that the panel followed was not agreed upon. She contended that she was the best candidate for the position. As a relief, she sought that the appointment be set aside and the process be redone. However, after Ms Boshoff resigned from the position, the Applicant sought a ruling on the procedural and substantive fairness on the appointment of the 2nd Respondent. Further to this finding, the Applicant is seeking compensation of R30 000, 00 and a cost order.

Summary of evidence and arguments

9. Hereunder, is the summary of evidence and not a verbatim account of the proceedings as prescribed by section 138(7) of the Labour Relations Act 66 of 1995 (“the LRA”). All the witnesses testified under oath.

The Applicant’s case

10. Ms Bianca Terblanche (“Ms Terblanche”) testified that she was a panel member for the impugned post as a School Governing Body parent component member at the School. She testified that the procedure that the panel followed during the shortlisting process was flawed in that only two panel members, Mesdames Debbie Delport (“Ms Delport”) and Vanessa Combrink (“Ms Combrink”), ran the process. She testified that Ms Steenkamp was not scored on all the aspects and that the panel members did not see the application forms of candidates. She averred that the Departmental Resource Person, Mr Gcinekhaya Xungu (“Mr Xungu”), left the process immediately after opening the package. She stated that there were derogatory remarks that Ms Combrink made when the panel was scoring Ms Steenkamp and another candidate, Mr Potgieter. She testified that her signature on the minutes of the recruitment process was forged.
11. Ms Zelda van Rooyen (“Ms van Rooyen”) testified that she was a Forensic Hand Writing and Documents Examiner and she stated her qualifications and experience. She testified about the methodology that she employed to check the veracity of signatures. She concluded that some of the signatures were copied and pasted because of the striking similarities of the signatures.
12. Ms Steenkamp testified that she was a Departmental Head since 2014 and that she acted as the Deputy Principal and as the Principal at the School. She stated that she was employed as a Lieutenant Colonel at the South African Police Services. She was referred to her GDE 2R form on page 497 of Bundle R to read her qualifications, experience and skills. She testified that as an Acting Principal, she discovered that there were some financial irregularities at the School. As a result, there were two (2) staff members, Mesdames Linda Opperman and Anna Potgieter, who were dismissed for these financial irregularities. She stated that the dismissal of the two staff members caused divisions and unhappiness amongst other staff members. She applied for the Principal position at the School and the committee that the SGB convened to consider the applications included the staff members who wanted to ensure that she does not get appointed. She was not shortlisted for this position and she got to know about it even before it was formally announced. She lodged a grievance and the process was redone.
13. She testified that she applied for the Deputy Principal post at the School. The panel members for this post were the same panel members for the Principal post safe for the chairperson. Mr M de Beer was appointed in the position. She stated that she lodged a grievance and requested that the recruitment process be redone and that an independent panel be appointed to oversee the process. However, this was not done. With the current dispute, still the same biased panel members were responsible for this recruitment process. She averred that during the shortlisting process, Ms de Beer scored Ms Boshoff high scores to enable the appointment of Ms Boshoff so that she (Ms de Beer) could act as the Head of Department. She testified that Ms Combrink informed her that her application form was not scored because it was incomplete. She was sent from pillar to post when she requested her application form. She stated that she believed that she was the best candidate for the post and that Ms Boshoff’s appointment was not in accordance with the PAM.

The Respondent’s case

14. Mr Hugo van Niekerk (“Mr van Niekerk”) testified that he was one of the panel members and he was the parents’ component of the SGB. He stated that at the commencement of the shortlisting process, they signed the attendance register and the declaration form. He stated that Mr Xungu requested Ms Delport to step outside. In the absence Ms Delport, Mr Xungu asked the panel members if Ms Delport has their support as an Acting Principal and they all confirmed. Then Ms Delport was called back. He stated that the panel members agreed on the criteria that they will be using to score the candidates and that they also agreed that they will use the numbers for candidates to avoid any biasness. He testified that Mr Xungu left the meeting when there were four or five candidates that needed to be scored because of family emergency. He stated that Mr Xungu handed the package to Ms Delport to open it and that during the process, Ms Combrink would read out the candidate number and the information on the application form for scoring. He stated that they would discuss as a panel if there was something that they were not sure of particularly with regard to the qualifications. He testified that Ms Combrink took handwritten notes during their discussions before the package was opened and after they were done with scoring. He submitted that he signed the typed minutes in the morning after the shortlisting process and he confirmed that the minutes were a true reflection of what transpired.
15. Ms Delport stated that she was the Head of Department at the School and that she was the Acting Principal during the recruitment process of the impugned position. She stated that she was the Chairperson during this recruitment process. She stated that during the shortlisting meeting, Mr Xungu asked about the absence of the trade union representatives and they told him that the trade union representatives were invited, but they were not in attendance. She stated that they signed the attendance register and the confidentiality form. Mr Xungu requested her to step outside. Upon her return, Mr Xungu explained the importance of the documents and then they decided on the criteria that they were going to use and they decided to use the numbers for candidates. They decided to shortlist only five (5) candidates, but they ended up shortlisting six (6) because there was a tie. Mr Xungu opened the package and there were thirty eight (38) candidates. She stated that Mr Xungu requested to leave when they were scoring candidate number thirty four (34) or thirty five (35) and he stated that he was happy with the process. She stated that after scoring each candidate, they would discuss and if there was a problem, the panel members would request to see the application form to verify if they had scored correctly. Ms Combrink would be given the score sheets to capture the scores. She stated that there were no disagreements after scoring. Every panel member was happy. She disputed that Ms Combrink told the members how to score. She saw Ms Combrink taking the minutes.
16. She testified that she attended Mr Liebenberg’s grievance hearing meeting at the District Office. His grievance was dismissed because it was lodged out of time. However, they were told about the employment equity plan. She stated that Ms Terblanche’s statement (Page548 of R) was not correct because during the grievance hearing it was explained that in terms of the equity plan, disabled professionals were in over supply. Therefore, they should not be scored favourably. She disputed that there were any derogatory comments that were uttered during the shortlisting process. She referred to Ms Steenkamp’s score sheet (Page 515 – 524 of R) and stated that Ms Steenkamp was scored in all areas by all panel members including Ms Terblanche (page 517 of R). She confirmed that the signature on page 126 of R was hers and stated that there was no need to forge signatures
17. Ms Vicky de Beer (“Ms de Beer”) testified that she was an Educator at the school and that she was a member of the SGB for two (2) terms. She stated that she was a panel member for the Deputy Principal’s post. She said that Mr Xungu, the resource person, explained the documents to the panel and they signed the attendance register and the confidentiality form. Mr Xungu requested Ms Delport to leave the room and he asked them if they supported Ms Delport in her role as the Acting Principal. They all confirmed that she had their support. When they started with the process, they decided on the criteria and they decided that they will use numbers instead of names of the candidates. The package was opened and there were thirty eight (38) application forms. Ms Combrink read the application forms and they would discuss and allocate scores. She testified that Mr Xungu left the process when there were about two (2) or three (3) candidates that were left to be scored.
18. She confirmed that the signature on page 127 of R was hers. She stated that it was not true that Ms Terblanche’s signature was forged and submitted that she saw Ms Terblanche in the morning at the office after the shortlisting. She stated that Ms Terblanche never showed any dissatisfaction or unhappiness with the process. She confirmed that she saw Ms Combrink taking minutes during the process. She testified that Ms Steenkamp was scored in all areas. She stated that she attended Mr Liebenberg’s grievance hearing and stated that his grievance was dismissed because it was out of time.
19. Ms Magdaline van der Westhuizen (“Ms van der Westhuizen”) stated that she was the Chief Personnel Officer for the Department and that she has been employed for over thirty two (32) years. She explained the recruitment process in detail. She stated that if one of the panel members was dissatisfied about the process, he / she must put in a formal complaint and that if there is a disagreement between the panel members, they have to vote about the issue and the majority will prevail. She stated that the panel members will discuss the criteria and agree on how they are going to score candidates. It was allowed that the panel members to score candidates the same scores.
20. Ms Combrink testified that she was the Administration Assistant at the school and that she was the Scribe during the recruitment process. She testified that during the shortlisting process, Mr Xungu welcomed the panel members and asked about the whereabouts of trade union representatives. They signed the attendance register and the confidentiality form. He requested Ms Delport to step outside and he asked if the panel members have got Ms Delport’s back as the Acting Principal. All the panel members agreed that Ms Delport has their support. Once Ms Delport was called back, Mr Xungu explained the documents including the PAM. The panel decided on the criteria that they were going to use scores and deliberations. They also decided that they were going to use numbers for candidates instead of names to avoid preferential treatment. Mr Xungu sowed the panel members that the package was sealed and he requested her to open it. She stated that after scoring, the panel members would bring their score sheet to her and MS Delport would double check the score sheet. She would then capture the scores on her laptop. She stated that there were six (6) candidates that were shortlisted because two of the candidates scored the same scores.
21. She testified that she wrote the minutes during the process and she typed them the same evening. The panel members came to sign the typed minutes the following morning. She stated that Ms Terblanche signed the minutes after Ms Labuschagne. She disputed that she told the panel members what to score and that it was not true that she controlled the process. She testified that Mr Xungu left when there were about two (2) or three (3) applications that were left. She stated the Ms Delport constantly asked the panel members if they were happy with the process and no one showed any dissatisfaction. She stated that there was nothing that was said about Mr Liebenberg’s disability because there was no special score that was supposed to be allocated for disability. She refuted the allegation that she uttered any derogatory statement when they were dealing with Ms Steenkamp and Mr Potgieter’s applications. She disputed that she told Ms Steenkamp that her application form was incomplete and it was rejected.
22. Ms Chantell Labuschagne (“Ms Labuschagne”) testified that she a parent component for the SGB at the school and that she was one of the panel members during the recruitment process. She stated that the SGB requested for a resource person because there were grievances with the previous recruitment process. She stated that on the day of the shortlisting, Mr Xungu came and welcomed every one. They signed the attendance register and the confidentiality form. Mr Xungu requested Ms Delport to leave the room. He then asked the panel members if they supported Ms Delport and they all said yes. Ms Delport was called back and Mr Xungu explained the documents and they dealt with the criteria. They decided to use the number system. The package was opened in their presence. She stated that after scoring each candidate, they deliberated and the panel members were at liberty to request to see the application forms. At the end of the process, the members were satisfied with the process.
23. She disputed that the version that only one person controlled the process. She stated that Ms Combrink wrote the minutes during the process and she signed the minutes in the morning and Ms Terblanche found her in the office. She stated that Mr Xungu left when there were about three (3) or four (4) applications to be scored. She testified that Ms Delport asked them if they were happy with the process and they were all happy. She stated that according to her, the process was fair and there were no issues. She testified that she attended Mr Liebenberg’s grievance meeting and the union official explained the equity plan. She stated that they were told that there was no need to score disability differently because there was an oversupply of disabled persons in the Department. She stated that Mr Liebenberg’s grievance was dismissed because it was late.
24. Mr Xungu testified that he was the IDSO for Gauteng West during this recruitment process and that he was the resource person for this process. He stated that his role as a resource person was to advise the panel and to ensure that the process was fair. He stated that the chairperson led the process. He disputed that only two (2) people controlled the process. He testified that Ms Terblanche did not raise any concern about her unhappiness during the process. He stated that the panel members discussed during the process and he could not pick up anything that suggested that the panel members wanted to disadvantage any candidate. He submitted that he left the process towards the end when there were about three (3) candidates remaining because he has an emergency at home. He confirmed that Ms Combrink took minutes during the process. He refuted that it was his signature on page 127 of R. However, he confirmed that the minutes were a true reflection of what transpired. He disputed that there were derogatory remarks that were made during the process.

Analysis of evidence and arguments

25. Section 185(b) of the LRA prescribes that every employee has the right not to be subjected to an unfair labour practice and section 186(2)(a) of the LRA defines unfair labour practice as any unfair act or omission that arises between an employer and an employee involving 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.
26. The Applicant’s dispute turns on the perceived bias of the shortlisting panel and that the procedure that the panel members followed during the shortlisting process was unfair. She also took an issue about the veracity of the documents from the recruitment process in that they were created after the process and that the documents were falsified. Following the procedural unfairness, she argued, the consequent result was that the process was substantively unfair.
27. In SAMWU obo Damon v Cape Metropolitan Council the court said that in an unfair labour practice dispute the employee bears the onus to prove the unfair labour practice complained of and in order to do that he must examine the reasons as to why he was not promoted and demonstrate the defect in the employer’s reasoning.
28. In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others , it was held that:

The overall test is one of fairness, and that in deciding whether or not the employer had acted unfairly in failing or refusing to promote the employee, relevant factors to consider include whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious considerations on the part of the employer; or whether the employer’s decision was motivated by bad faith, was arbitrary, capricious, unfair or discriminatory; whether there were insubstantial reasons for the employer’s decision not to promote; whether the employer’s decision not to promote was based upon a wrong principle or was taken in a biased manner; whether the employer failed to apply its mind to the promotion of the employee; or whether the employer failed to comply with applicable procedural requirements related to promotions. The list is not exhaustive.

29. The Court held in the National Union of Metalworkers of SA v Vetsak Co-Operative Ltd & others that fairness required in the determination of an unfair labour practice must be fairness towards both employer and employee. There are three basic requirements for a fair appointment or promotion. The procedure must have been fair, there must have been no unfair discrimination, and the decision must not have been grossly unreasonable, it needs to be demonstrated that the employer acted irrationally or arbitrarily, was bias or failed to apply its mind or had exercised his discretion arbitrarily or based it on any wrong principle.
30. It is trite that the appointment of educators is regulated by the Act and by the PAM. Vacant posts for educators must be duly advertised, which, according to paragraph 3.1(a)(iii) of the PAM must be non-discriminatory and in keeping with the provisions of the Constitution of the RSA and clearly state that the State is an affirmative action employer.
31. It is common cause that Ms Steenkamp was not shortlisted for the impugned post. Ms Terblanche only raised her concern about the procedure that was followed during the shortlisting process when this dispute was referred. Her concern was that she was not happy with the numbering system that the panel members used to identify candidates. The unchallenged evidence of Ms van der Westhuizen was that during the training of the SGB members for the recruitment process, panel members were advised that to avoid any preferential treatment of candidates, a number system was recommended to conceal the identity of the candidates was not challenged. I therefore do not find any underhandedness for the panel members to have elected to use the number system.
32. All the witnesses that testified during these proceedings, except Mesdames Steenkamp, van der Westhuizen and van Rooyen, were part of this recruitment process. Therefore, they have first-hand knowledge of what transpired during the process. Ms Terblanche averred that there were derogatory remarks that were made when Ms Steenkamp and Mr Potgieter’s applications were to be determined. All the panel members disputed this assertion. Even if I were to believe Ms Terblanche’s assertion, which I do not, there was nothing that came out of it because Ms Steenkamp was scored on all the aspects as per the criteria that was pre-determined by all the panel members.
33. It is not in dispute that Ms Steenkamp lodged a grievance in November 2021 for the Principal’s post at the school. She again referred a dispute to the Council for the Deputy Principal’s post in the year 2022. In all the instances, Ms Steenkamp raised concerns about the impartiality and biasness of the panel members. It was her contention that the Respondent did nothing to address her concerns. Even the SGB was concerned about the grievances that follow after each recruitment process. Hence, the SGB requested that the Respondent intervene by providing a resource person. Therefore, it is not correct that the Respondent did nothing despite these serious concerns because Mr Xungu was at this recruitment process as the resource person.
34. I am alive to the allegation by Ms Terblanche that Mr Xungu left the process shortly after the package was opened. However, this allegation was rebutted by all the other panel members and they all stated that Mr Xungu left at the tail end of the process when there were less than five (5) application forms that were to be scored. In terms of the shortlisting sheet on page 128 of R, Ms Steenkamp was at number 29. Therefore, this would mean that she was already scored when Mr Xungu left the process. There were contradictions on Ms Terblanche’s on other aspects of her testimony. For instance, in her examination in chief, she confirmed that what appears on the raw minutes is what the panel members discussed. However, under cross examination, she changed her tune and said that there was nothing that was discussed. She conceded that the minutes on page 124 and 483 of R were correct. However, she disputed the signature on page 127 of R as not hers. She attended the grievance hearing meeting for Mr Liebenberg at the District Office on 15 August 2023. She authored a statement on 11 November 2023 (page 548 of R) and her statement differs materially with her testimony. In her oral evidence, she indicated that she did not recall what transpired during the grievance hearing as she would sometimes zone out. In her statement she stated that it was the first time that they were told about Mr Liebenberg’s disability. I must indicate that disability was not to be allocated a special score as it was not the requirement as per the equity plan. She testified that Ms Combrink uttered the derogatory words when they were about to score Ms Steenkamp and Mr Potgieter. She did not mention any of these derogatory remarks in her statement. Thus, I find her credibility and reliability as a witness questionable.
35. With regard to the same scores that the each panel member allocated to each candidates, Ms Steenkamp held the view that it cannot be that all panel members can score each candidate the same score. This narrative was advanced by Ms Terblanche by alluding that Ms Combrink told them what to score each candidate on each criterion. I find this absurd to say the list. The panel members agreed on the criteria (page 122 of R) and the score to be allocated on each aspect of the criterion. If it was a male candidate, they would score that candidate a two (2) as agreed. Qualifications (only relevant to education) would be scored according to the RVQ level. It therefore would follow that the panel members would not score one application differently.
36. I will now turn to alleged forged signatures. Ms van Rooyen (the expert witness) concluded that some of the signatures were forged and / or were copied and pasted. Mr Xungu and Ms Terblanche disputed the signatures on some of the documents were not theirs. I am persuaded that indeed some of the signatures that Ms van Rooyen examined for a panel member on different documents were strikingly similar. All the witnesses who testified about the minutes, they did not doubt their veracity. They all testified that the minutes were a true reflection of what transpired during the recruitment process. I cannot comprehend why they would want to forge signatures or cut and paste signatures of panel members on documents emanating from a process that they testified to its fairness. It is also concerning that the Respondent failed to produce the originally signed documents in these proceedings. The discovery of the originally signed documents would have allayed any doubts to the process that the panel members have undertaken. Notwithstanding, I do not find that the Applicant was subjected to an unfair labour practice.

Award

37. The Applicant, Ms Moira Steenkamp, failed to discharge her burden of proof that the Respondent subjected her to an unfair labour practice.
38. That the Applicant is not entitled to any relief.
39. There is no order as to costs.

Arbitrator: Themba Manganyi