Gauteng education ordered to replace school principal after ELRC finds unfair labour practice

The Gauteng department of education has been ordered to remove the principal of a primary school in Ekurhuleni and appoint the candidate who challenged the appointment.

This was after an arbitrator at the Education Labour Relations Council (ELRC), Mmakgare Shai, held that the recruitment process was procedurally and substantively unfair.

Shai, in an award on Monday, held that the department committed an unfair labour practice when it failed to appoint deputy principal Thabiso Lazarus Thobakgale as principal of Tlamatlama Primary School in Thembisa.

The award set aside the appointment of Richard Rihlamvhu as principal, ordered that Thobakgale be appointed with immediate effect and directed the department to pay the latter compensation equivalent to 10 months’ salary by July 30.

Shai also ordered that the award and record of proceedings be submitted to the head of the Gauteng education department to consider further investigation into the conduct of human resources official Emily Mochela and departmental official Lawrence Nkanyane.

The dispute arose after Thobakgale, who had served as acting principal for 21 months, unsuccessfully applied for the permanent principal post in 2023. He referred an unfair labour practice dispute to the ELRC, arguing that he was the stronger candidate based on his qualifications and experience and that the recruitment process was tainted by irregularities.

Thobakgale told the arbitration he held several qualifications, including a Bachelor of Education degree, a postgraduate diploma in education management and an NQF level 8 qualification equivalent to an honours degree.

He testified that he was on Relative Education Qualification Value (REQV) 16, compared with Rihlamvhu’s REQV 14, and had more experience as a deputy principal as well as nearly two years of experience acting in the principal’s role.

He also alleged that Rihlamvhu should never have been shortlisted because he failed to submit a required criminal record clearance certificate with his application or before the interview. According to Thobakgale, the document was only submitted months later after the recruitment process had already progressed.

He further argued that there were irregularities in the composition of the interview panel, inconsistencies in scoring and that departmental officials assisted Rihlamvhu to overcome shortcomings in his application.

The department denied the allegations, maintaining that all recruitment procedures had been followed and that Rihlamvhu was the stronger candidate.

During the arbitration, however, several witnesses acknowledged aspects of the process that were later central to the arbitrator’s findings.

Any reasonable decision maker would conclude that the departmental officials were engaged in aiding the second respondent to be appointed regardless of the irregularities.

—  Education Labour Relations Council award

Mochela confirmed that the clearance certificate by Rihlamvhu was only submitted later, although she maintained this did not invalidate the process. She also conceded that Rihlamvhu had been overscored by one point for qualifications and computer literacy but said he had also been underscored on experience, leaving his shortlisting unaffected.

Departmental resource person Gregory Mphahane similarly conceded that the clearance certificate had not been submitted at the interview stage and acknowledged the scoring errors. He also accepted that qualifications and experience were not considered during the interview assessment itself.

One of the most significant pieces of evidence came from retired deputy chief education specialist Peter Nkosi, who testified that he had advised the department that a candidate who failed to declare a criminal record should be disqualified.

Nkosi further alleged that Lawrence Nkanyane admitted altering Rihlamvhu’s application by replacing an original handwritten form with a typed version. He testified that the original application had indicated the candidate had no criminal record, while the later version reflected otherwise.

Nkosi also alleged Nkanyane later attempted to provide him with the wrong application documents after promising to retrieve the original.

Shai noted that these allegations were not adequately rebutted during the proceedings.

In analysing the evidence, the arbitrator found several procedural flaws.

One concerned the appointment of a co-opted member to the interview panel without evidence that the required approval had been obtained from the school governing body and the relevant departmental authority, as required by the applicable collective agreement.

Shai also found that Rihlamvhu failed to meet the minimum application requirements because the required criminal clearance certificate was neither attached to his application nor produced at the interview.

“It is clear from the above that it is a must to attach the documents or submit them at the start of the interview,” the award states.

“In their absence, a candidate does not have credentials and cannot be interviewed,” Shai said.

Although scoring errors alone would not have altered the shortlisting outcome, the arbitrator found the handling of the clearance certificate and the lengthy delay in finalising the appointment raised serious concerns.

The recruitment process began after applications closed in December 2023, interviews were completed in September 2024 and the recommendation reached the district office later that month. However, the appointment was only approved by the director in May 2025 shortly after Rihlamvhu’s clearance certificate was submitted.

The department offered no satisfactory explanation for the eight-month delay.

The arbitrator concluded that departmental officials appeared to have been focused on securing the missing clearance certificate so that the appointment could proceed despite the irregularities.

“Any reasonable decision maker would conclude that the departmental officials were engaged in aiding the second respondent to be appointed regardless of the irregularities,” the award states.

The arbitrator described the allegations against Nkanyane and Mochela as sufficiently serious to warrant further investigation, adding that “innocent, honest and hardworking educators are hard done by them” if such conduct was allowed to continue.

On the merits of the appointment itself, the arbitrator found that the department had failed to properly consider Thobakgale’s superior qualifications and experience when making the final recommendation.

The award noted that while the interview panel’s written motivation for Rihlamvhu referred to his experience and job knowledge, the motivation for Thobakgale merely stated that he would require “a lot of support and development”, despite his 21 months as acting principal.

The arbitrator found this inconsistent with the applicable collective agreement, which requires qualifications, experience and interview performance to be considered together when making appointments.