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THE LABOUR COURT OF SOUTH AFRICA,
HELD AT CAPE TOWN
Case no: C 302/2023
In the matter between:
The Department of Education
Northern Cape Province Applicant
and
Ruben Forbes Crow First Respondent
Education Labour Relations Council Second Respondent
Solong Mosoma N.O Third Respondent
Sylvie Mariana Walker Fourth Respondent
Date of Hearing: 1 July 2025
Date of Judgment: 24 July 2025
Summary: Review of determination of arbitrator in ELRC in respect of unfair
labour practice claim pertaining to promotion
JUDGMENT
STELZNER AJ
Page 2
Introduction
[1] This is an application in terms of section 145 of the Labour Relations
Act, 66 of 1995 (LRA) to review and set aside the arbitration award
issued by the Third Respondent (the Arbitrator) under the auspices of
the Second Respondent, the Education Labour Relations Council
(ELRC), case number ELRC712-21/22NC dated 29 May 2023.
[2] In terms of the award the appointment of the above named Fourth
Respondent, Ms Walker, who was joined as Second Respondent in
the arbitration proceedings but did not participate therein and has not
participated in these review proceedings either, was set aside.
Applicant (more specifically its Head of Department (HOD)) was
directed to promote First Respondent with retrospective effect to the
position of school principal at Carlton Van Heerden High School. '
[3] The Applicant seeks to have the award reviewed on various grounds.
[4] It contends firstly that the ELRC had no jurisdiction to decide the
dispute before it which was submitted as an unfair labour practice
relating to promotion, making the determination which was made and
granting the relief which was granted, arguing that the First
Respondent should rather have sought to have the promotion of the
Fourth Respondent set aside under PAJA than approach the ELRC.
The “four crisp issues” identified in the Applicant’s practice note fall
under this rubric.
The jurisdiction of the ELRC over the dispute
[5] The unreported decision of LAC in the matter of Education Labour
Relations Council and Department Education: Gauteng under Case
1 The parties are referred to herein in the manner in which they have been cited in these
review proceedings. First Respondent was the Applicant in the arbitration, the Department
the First Respondent and Ms Walker the Second Respondent in those proceedings.
Page 3
no: JA72/2022, heard on 23 May 2024 in which the judgment was
delivered on 12 June 2024, provides the complete answer to this first
ground of review.
[6] In that matter the Labour Court had reviewed and set aside an arbitral
award, made by an arbitrator, under the auspices of the Education
Labour Relations Council (ELRC). The award was set aside pursuant
to the Labour Court’s finding that the Commissioner lacked jurisdiction
to arbitrate the dispute.
[7] The dispute there was between a Mr Betane and a Ms Motoma who
had scored 92 and 90 points respectively in their interviews before a
selection panel. The selection panel recommended to the School
Governing Body (SGB) that Mr Betane be recommended for
appointment by the Department of Education (DoE). The SGB ratified
the decision and recommended Mr Betane for appointment to the post.
[8] The DoE decided not to follow the SGB’s recommendation and
appointed Ms Motoma. The primary reason for rejecting the SGB’s
recommendation was that it overlooked the gender imbalance at the
school. Having considered the gender imbalance at the school it
decided to appoint a female.
[9] Dissatisfied with the DoE’s decision, Mr Betane referred an unfair
labour practice dispute to the ELRC, in terms of section 186(2)(a) of
the Labour Relations Act (LRA).?
[10] At the arbitration, the arbitrator found that the conduct of the DoE
constituted an unfair labour practice with regard to the promotion of Mr
Betane. He ordered the DoE to appoint Mr Betane to the post, and set
aside Ms Motoma’s appointment.
2 Section 186(2)(a) of the Labour Relations Act, 66 of 1995, as amended (LRA) provides:
“Unfair labour practice’ means any unfair act or omission that arises between an employer
and an employee involving —
(a) 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...’