IN THE MATTER BETWEEN:

NAPTOSA obo BALGOVIND R. Applicant

And

HEAD OF DEPARTMENT OF THE KWAZULU-NATAL-DOE 1st Respondent

NAIDOO S. 2nd Respondent

ARBITRATION AWARD

Case Number: ELRC809-20/21KZN

Date of Award: 02 April 2025

ELRC Arbitrator: T. Mtolo

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION

1. The arbitration proceedings were held under the auspices of the Education Labour Relations Council (ELRC) in terms of Section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended. The dispute pertains to an alleged unfair labour practice relating to promotion. The matter was set down on 24 February 2025 at the Durban Teachers Centre. It was mechanically recorded. Closing arguments were received on 05 March from the respondent and 10 March 2025 from the applicant.
2. The applicant, Mr. Ramesh Balgovind, was represented by Ms. Fiona Moodley of FAM Attorneys. The first respondent, the KwaZulu-Natal Department of Education, was represented by Ms. Monica Mthethwa, its Labour relations. The second respondent, Mr. S. Naidoo, was present and represented by Mr. Mxolisi Mncube, a SADTU representative.
   ISSUE TO BE DECIDED
3. The issue before me is whether the non-promotion of the applicant to the position of Deputy Principal (Post No. 153 at George Campbell Technical High School) constituted an unfair labour practice in terms of section 186(2)(a) of the LRA. If so, I must determine the appropriate relief.
   BACKGROUND TO THE DISPUTE
4. The applicant applied for the post 153 of Deputy Principal as advertised in HRM Circular 13/2020. He was shortlisted, interviewed, and subsequently ranked third. The post was ultimately awarded to Mr. S. Naidoo, the second respondent.
5. Prior to the appointment, the applicant lodged a grievance alleging procedural irregularities and conflict of interest due to the inclusion of certain panel members, specifically Mr. Van Leeuwen (Principal) and Mr. Mark Francis (SGB member), both of whom had been involved in previous misconduct allegations against the applicant.
6. The applicant contended that the presence of these panelists prejudiced him during the interview process, which he alleged was procedurally flawed and lacked impartiality. The first respondent maintained that the process was procedurally and substantively fair. The applicant further asserted that he was the best candidate.
7. The applicant seeks the setting aside of the appointment of the second respondent and a restart of the process from the interview stage, alternatively, compensation.
8. The matter was initially set down on 14 September 2022 but was postponed on several occasions. It was scheduled again for 1 February 2023 before myself and concluded on 24 February 2025. the proceedings were, at times, disrupted by the conduct of the parties, who were duly cautioned.
   SURVEY OF EVIDENCE AND ARGUMENTS
   EVIDENCE LED BY THE APPLICANT – MR. R. BALGOVIND
9. The applicant, Mr. R. Balgovind, testified under oath. He testified that he met the minimum requirements for the post, was shortlisted, and was interviewed He stated that during the course of the interview process for the Deputy Principal position at George Campbell Technical School (Post No. 153), he was advised that if there was anything he did not like, he should not verbalise it at the time but should allow the process to unfold and then challenge it afterward. He stated that the following individuals were involved in the process: Mr. Van Leeuwen (Principal), Mr. Francis, Miss Young, and Mrs. Jonathan (the resource person). He asserted that the presence of both Mr. Van Leeuwen and Mr. Francis made him feel uncomfortable during the process.
10. The applicant testified that Mr. Van Leeuwen, as principal of the school, had previously charged him with several disciplinary offences, including insubordination, fraud, and theft. Although these charges were later withdrawn, the applicant stated that their prior history disturbed him and that Mr. Van Leeuwen’s presence on the interview committee created a hostile environment. He further stated that he had requested Mr. Van Leeuwen to recuse himself during a prior acting deputy principal application process, and again for the current interview process, but his request was unsuccessful. He believed that as long as Mr. Van Leeuwen remained part of the panel, his chances of success were compromised.
11. The applicant stated that he lodged a grievance immediately after the interview, as reflected in Bundle B. His grievance specifically cited Mr. Van Leeuwen’s involvement as inappropriate due to perceived bias. He testified that his grievance was heard with representation from NAPTOSA but as ultimately dismissed without clear reasons.
12. The applicant further stated that other individuals involved in prior disciplinary processes against him also served on the interview panel. Mr. Govender, who had been involved in prior charges, recused himself, as did Mr. Ingle, who had previously handled a grievance involving the applicant. However, Mr. Francis, who had also been involved in past disciplinary matters, did not recuse himself and participated in scoring the applicant. The applicant contended that both Mr. Van Leeuwen and Mr. Francis should have recused themselves due to bias, and their failure to do so tainted the process.
13. He testified that the secretary should have recorded all aspects of the interview, including the answers of all candidates. However, he was informed that the notes or pieces of paper used by the scorers had been destroyed. He believed that the destruction of such documents undermined transparency and fairness, and that the minutes would have reflected how answers were given and how scoring decisions were made.
14. The applicant referred to Bundle A, page 51, paragraph 10.12, which provides that all interviewees must be treated equally. He acknowledged that he was treated fairly in terms of conduct, but alleged that he was treated unfairly during the scoring process. He stated that his score was inexplicably low and that another candidate with a lower score was rated higher. He emphasised his extensive experience, noting that he had 33 years of teaching experience, and described the low score as demoralising.
15. He referred to Bundle A, page 40, stating that while he does not know which panel member gave him which score, he was confident that Mr. Van Leeuwen and Mr. Francis would not have scored him fairly. He believed that the principal did not want him appointed as deputy principal, referencing an earlier dispute over a 2017 post where he felt similarly unfairly treated. He expressed that his professional ambition was to join the management team in order to address what he perceived as ongoing injustices at the school. He asserted that his relationship with staff at the school was otherwise cordial and professional.
16. The applicant reiterated that no justification was provided for the scores awarded to him. He submitted that all scoring documentation, particularly the written notes and justification sheets, should have been preserved. He referred to Bundle A, page 52, specifically paragraph 11.1, which emphasises the importance of maintaining accurate records in meetings; paragraph 11.2, which requires reasonable effort to keep records; and paragraph 11.3, which mandates that such records be kept for a minimum of two years. He stated that he requested the interview minutes and was provided with them, but that they did not contain the level of detail he expected. He also requested an audio recording of the interviews but was informed that no digital recordings had been made.
17. The applicant referred to Bundle A, paragraph 12.1.5, and submitted that the failure to provide documented responses to interview questions was inconsistent with that provision. He argued that the absence of such records, combined with the continued involvement of two allegedly biased panel members, rendered the process procedurally and substantively unfair.
18. He provided a summary of his qualifications and experience: he began teaching in 1987, worked at various schools, briefly resigned in 2007. He was promoted in 2018 to the post of Departmental Head in Electrical Technology. His highest qualification is a Bachelor of Education Honours degree.
19. He further submitted that one of the panel members, Mrs. Young, had no formal training, and this constituted a procedural irregularity. He referred to Bundle A, paragraph 12.1.7, which deals with the concept of bias, stating that its provisions were not adhered to. He contended that no formal meeting was held to appoint replacements for the panel members who had recused themselves. Instead, he alleged, emails were sent to the SGB. He requested the minutes of the appointment of new IC members, particularly in relation to Mrs. Jonathan, the resource person. He claimed no formal appointment letter for Mrs. Jonathan was produced, and her appointment was not reflected in the minutes.
20. He further testified that only IC members were trained, and he specifically wanted to see the attendance register to confirm whether Mrs. Young attended the requisite workshop. He indicated his intention to call a witness to prove that Mrs. Young had not received training. He emphasised again that no appointment letter for Mrs. Jonathan was produced and was absent from the documentation.

CROSS-EXAMINATION OF THE APPLICANT – MR. R. BALGOVIND

21. During cross-examination, the applicant testified that he was advised not to lodge a complaint before or during the interviews, but to rather wait until after the process and lodge a grievance. He stated that this was based on advice from his trade union representative, who warned him that raising concerns beforehand may prejudice him. He therefore entered the interview process with the hope that his answers would be received favourably.
22. He confirmed that he did not inform the interview committee that he intended to lodge a grievance, as he suspected the same members might return as panelists for future promotions. He also did not alert the Department to intervene or address the presence of certain panel members. He acknowledged that had he raised concerns with the Department regarding the recusal of Mr. Van Leeuwen and Mr. Francis, the outcome may have been different.
23. He stated that in his view, the number of years of experience improves one’s performance in interviews, as it equips candidates to respond to questions more confidently and effectively. He maintained that he was a better candidate than Mr. Naidoo because he had more years of teaching and management experience.
24. While he initially stated that he had a sound working relationship with the principal, he later described the principal as dishonest and malicious, and stated that his appointment as Deputy Principal would have placed him in a better position to challenge systemic issues and “evil” within the school. He alleged mistreatment by the principal over a six-year period, including the loss of certain portfolios, and contrasted this with his experience under the previous principal, with whom he had no conflicts or grievances.
25. He testified that he had never filed a grievance against the former principal, nor was he aware of any arbitration proceedings involving him. When referred to Bundle A, page 52, paragraphs 12.1.1 to 12.1.10, he said he was unaware of any collusion between the resource person, the principal, and the interview committee, but speculated that collusion might be the reason why the resource person failed to raise procedural issues.
26. He explained that his reference to “personal interest” related to the fact that certain IC members had previously laid charges against him. He viewed this as a disqualifying factor. He could not recall whether the principal served as a scorer or merely as a resource person for the acting deputy principal interview but confirmed that the principal was a resource person in the previous acting deputy principal process. He reiterated that he had asked the principal to recuse himself from the current post (Post 153), not the acting post.
27. When asked about the union representative present during the interviews, he said he could not comment on why she did not raise any issues.
28. He noted that training was held at the school, but he did not see Mrs Young attend. While he was in class, he walked around during breaks and still did not see her. He confirmed that he was not privy to the attendance register and could not confirm whether she received training.
29. He stated that he had applied for several promotional posts and had lodged two disputes — one at George Campbell and another at Phoenix Technical School. The Phoenix dispute was upheld, and the interview process was redone.
30. He acknowledged that the interview committee is guided by HRM Circulars in applying minimum requirements during shortlisting and assessment. He said that, to his knowledge, there is no formal template for drafting interview minutes. However, he believed that accurate minutes should include questions, responses, and scorers’ identities.
31. He further stated that Mrs. Young, likely scored him higher because she was untrained and neutral, while the other two scorers gave him lower scores due to bias. He speculated that the dictaphone present in the interview room may not have been used for recording.
32. He confirmed that he was shortlisted and interviewed and that Bundle A, pages 38 and 40, reflected that Mr. Naidoo was scored higher and placed first. He stated that he answered all the questions posed and that Mr. Naidoo met the minimum requirements, as shown on Bundle A, page 25, paragraph E, and page 44. While he accepted that Mr. Naidoo had 26 years of experience and the required qualifications, he maintained that he had similar qualifications and more experience, and that this, along with his stronger management, budgeting, and curriculum delivery skills, made him a better candidate.
33. He emphasised that he has consistently maintained higher matric pass rates and claimed that Mr. Naidoo’s management of portfolios at the school was poor. He further alleged that Mr. Naidoo takes on too many portfolios and performs poorly in all of them, despite complaints from the management team, which the principal allegedly disregards.
34. He reiterated that the outcome of the interview was left to the interpretation of the panel but insisted that he had the requisite skills and knowledge aligned with the post requirements. He acknowledged applying for deputy principal posts at other schools, including Phoenix Technical School, but was not successful.
35. He stated that the Phoenix panel had a different standard and selected a different candidate, and he and another educator lodged grievances in that instance. He confirmed that he did not participate in scoring himself or others, nor did he hear Mr. Naidoo’s responses. He believed that the three IC members could corroborate that his performance was superior.
36. He noted that his union representative was present during the interview process but failed to lodge any grievances, and instead signed the documentation found at pages 37 and 38. He did not appoint her and was unsure whether she was qualified to serve in that role. He described her conduct as gross misconduct and stated he intended to report it to NAPTOSA.
37. He alleged that the unfair labour practice was committed by the IC through unfair scoring driven by a history of animosity. He described the scoring as “disgusting” and done in “bad faith.” He indicated he could not comment on the exact timekeeping method but was certain the dictaphone was not used, as it was not touched.
38. He stated that on Bundle B, page 31, the presence of Mr. Francis and Mr. Van Leeuwen formed the basis of the unfair labour practice. He affirmed that although he did not raise concerns during the interview, he acted professionally and lodged a grievance afterwards. He repeated that the union failed him on that day and reiterated that while one has no right to promotion, one does have the right to be fairly considered for a promotion; a right he believes was denied.
39. He confirmed that he was familiar with the South African Schools Act and that the SGB has authority to appoint the interview committee. He acknowledged that both Mr. Francis and Mr. Van Leeuwen were duly elected to the IC by the full SGB and were therefore legitimately part of the process. He stated, however, that he requested their recusal in his capacity as an educator and acknowledged that he had no formal authority to demand such recusal.
40. He emphasised that “perception” relates to how one feels about a situation — a subjective experience that can be supported by opinion-based evidence. He stated that he did not know how each scorer assessed him but understood from experience that three scorers are typically appointed to balance out scoring — with one able to act as a counterweight to the others.
41. He referred to page 58 of Bundle B and stated that his grievance was dismissed for being premature and lacking grounds. He acknowledged that the principal, as a member of the interview committee, was performing his official duties. He reiterated that despite their differences, he and the principal maintained a sound working relationship.
42. He also noted that the minutes of the interview, as provided, did not reflect everything that transpired. Referring again to Bundle A, page 52, paragraphs 11.1 to 11.3, he stated that the records of proceedings should have included motivations and script notes, which he believes were destroyed improperly.
43. He testified that he saw the dictaphone in the interview room and was sure that it was present during all interviews. He did not observe it being used, nor did he see any other device being used for timekeeping. He was unsure whether the secretary who might have recorded the minutes would testify.

RE-EXAMINATION OF THE APPLICANT – MR. R. BALGOVIND

44. During re-examination, Mr. Balgovind testified that Mr. Naidoo was also interviewed for a deputy principal post at Phoenix Technical School and was not successful. He maintained that the interview process at George Campbell was fair during the introductions but became unfair during the scoring phase. He referred to Bundle B, page 67, paragraph 33, to illustrate that his grievance was not merely based on dissatisfaction but on demonstrably low and unjustified scores.
45. He reiterated that the unfair labour practice claim was rooted in the conduct of the interview committee, which scored him unfairly. He emphasised that two or three of the panel members had previously laid grievances or charges against him and therefore could not have been impartial. He did not believe he received a fair score and noted that he was not placed in the top three candidates.
46. He stated that he specifically asked the principal to recuse himself and informed him that he would be lodging a grievance. He referred to Bundle A, page 5, confirming that the minutes reflect the recusal of two other members, but not himself or the individuals he objected to.
47. He stated that if the interview responses had been properly recorded and made available, he would have been in a position to validate the scoring, including his own. He emphasised that the lack of recorded responses compromised the fairness of the process. He again referenced Bundle A, page 52, paragraph 11.2, which deals with documenting reasons and motivations for candidate recommendations. He noted that no such motivations were provided for the top three candidates.
48. He further stated that each interview committee member was required to keep script notes, and that he does not know the specific content of those notes but believed they should have been preserved for at least two years. He confirmed that IC members had written materials in front of them during the interviews.
49. He reiterated that he only became aware of the panel members’ identities on the day of the interview. He maintained that interview minutes should reflect all that transpired, and without records of questions and answers, there could be no valid justification for the scores he received.

WITNESS: MR. JACQUEES VAN LEEUWEN

50. Mr. Van Leeuwen, the principal of George Campbell Technical School, was sworn in and gave evidence under oath. He stated that he has been employed as an educator since 1989 and became principal of George Campbell in 2017. He testified that he has known the applicant since 2013 and described their working relationship as professional. Mr. Van Leeuwen emphasised that his conduct is guided by the policies of the Department of Education, which he adheres to in all relevant processes.
51. He testified that the applicant’s performance as an educator has been inconsistent—sometimes commendable, and at other times, unsatisfactory. He acknowledged that there had been complaints regarding the applicant, although he opted not to elaborate on their nature during his testimony.
52. Mr. Van Leeuwen confirmed that he served as a panelist during the interview process. He was unable to recall the specific questions posed to the applicant but recalled that the applicant’s responses were not satisfactory. He noted his experience in sitting on numerous interview panels and reiterated that although he could not remember the content of the applicant’s answers, he remembered the overall impression formed.
53. He referred to Bundle A, page 40—the EHR 10 Interview and Assessment Form—and stated that he could not recall which score was his, although he believed he was not the panelist who awarded the score of eight, given that the applicant’s responses were not satisfactory. He further indicated that there is no policy requiring interview panelists to record candidates’ responses in writing.
54. Mr. Van Leeuwen testified extensively about the scoring process and justification of scores recorded on the EHR 10 form. He was referred to Bundle A, page 6, which contains the interview questions, and stated that there was no accompanying memorandum. Accordingly, he and the resource person provided guidance on Questions 1 to 3, which were education-related.
55. He was further referred to Bundle A, page 52, relating to the safekeeping of documents. He stated that he was neither the resource person nor the secretary, and that not all notes or documents are preserved for two years. He acknowledged that complaints regarding the applicant had been escalated to the Department, but the applicant was not formally charged.
56. Mr. Van Leeuwen denied holding animosity towards any of his staff, regardless of whether he had issued warnings or reported misconduct. He stated he does not recall the applicant requesting him to recuse himself in relation to post 153, nor does he recall such a request from Mr. Roy. He asserted that reporting misconduct to the Department fell within his duties and confirmed he did not recommend that charges be laid.
57. He was referred to Bundle A, page 5, and confirmed that Mr. Ingle and Mr. Govender recused themselves from the panel, which he read aloud. He was further referred to Bundle B, page 55, paragraph 17, which relates to the requirement for recusal in the event of a personal interest. He read this aloud and reiterated that he does not recall any request by the applicant for his recusal following the acting post.
58. Mr. Van Leeuwen testified that he was present to give evidence on HRM 13 of 2020, Post 153—being the Deputy Principal post at George Campbell. He brought documents he believed necessary for the proceedings. He retracted and noted that complaints against the applicant were irrelevant to the matter under the arbitration.
59. He again referred to Bundle A, page 52, paragraph 11.3, which he read aloud, emphasising that documents must be kept for two years.
60. He stressed that no one requested that he recuse himself, and he only takes instructions from the circuit manager.
61. Under cross-examination, Mr. Van Leeuwen confirmed that, as principal, he was elected to the Interview Committee (IC) alongside the School Governing Body (SGB). He confirmed that the resource person was appointed, that five candidates were shortlisted and interviewed, and that Mr. Balgovind was among the top three recommended but was not the best candidate. He stated that all candidates were interviewed fairly and received equal treatment. The scores from the three scorers were averaged.
62. He noted that the IC changed when Mr. Govender and Mr. Ingle recused themselves. He objected to the implication that he held animosity towards the applicant, stating such an allegation was an indictment of his integrity. He did not observe any bias or inappropriate conduct from himself or Mr. Francis during the interview process. He affirmed that time allocation, questions, and procedures were uniform for all candidates.
63. He referred to Bundle A, page 55, paragraph 10.12, which he read out, and reiterated that the applicant was treated equally. He clarified that the documents required to be kept did not include scribbled notes, and that no policy requires electronic recording of interviews. He emphasised again that the complaints regarding the applicant were not part of the arbitration.
64. He reaffirmed that the interview process was fair and that he treated all staff, including the applicant, equally. He maintained that he had no vested interest in the post but wanted the best candidate to meet the school’s curriculum needs. He emphasised that suitability for the post was assessed based on the quality of responses during the interview—particularly managerial qualities appropriate to a deputy principal role.
65. Under re-examination, Mr. Van Leeuwen reiterated that he had no written record of candidate responses correlating to their scores. Each of the three scorers determined their own score based on individual impressions and responses. He noted that he could not answer why the other panelists recused themselves, although reasons for recusal vary—from personal relationships to other forms of conflict.
66. He again referred to Bundle B, page 55, paragraph 17, regarding personal interest, stating he had no reason to recuse himself. He believed that he manages the school impartially and had no issues with the applicant. He emphasised that the process, questions, and treatment of all candidates were uniform.
67. He also asserted that while the applicant could request a panelist’s recusal, there was no right to demand it. He confirmed that no unions lodged any grievances, and referred to the grievance outcome in Bundle A, which noted that the matter had been prematurely referred and was subsequently dismissed.
68. He concluded that his role in bringing complaints to the arbitration was necessitated by the applicant being the only candidate pursuing the matter.

WITNESS: MR. MARK FRANCIS

69. Mr. Mark Francis, the treasurer of the SGB at George Campbell, testified that he served on the SGB approximately four years ago. He confirmed his awareness of Mr. Balgovind as an educator at George Campbell. Mr. Francis was a member of the interview committee and served as a scorer. He confirmed that Mr. Balgovind was shortlisted, interviewed, and scored.
70. Mr. Francis testified that there was no prejudice resulting from the inclusion of himself or Mr. Van Leeuwen on the panel. He stated that individual scores were marked independently and submitted both verbally and in writing to the resource person or secretary. He also stated that he chaired the interview committee and that his role as chairperson was not challenged by the union or the resource person. The unions were present, and no objections were raised by Mr. Balgovind regarding Mr. Francis’s participation.
71. Each candidate received the same questions and the same time allocation. Mr. Francis emphasised that the interview process was free and fair. He confirmed that Mr. Govender, the SGB Chairperson, recused himself due to issues with the applicant and asked Mr. Francis to replace him.
72. Under cross-examination, Mr. Francis reaffirmed that he did not know the issues between Mr. Govender and the applicant, and that his appointment to the panel was approved at an SGB meeting. He was unable to recall whether other individuals, such as Mrs. Young or and another I.C member had recused themselves. He remembered that Mr. Ingle was the first resource person but could not recall why he was replaced.
73. Mr. Francis acknowledged awareness of disciplinary issues at the school involving the applicant but emphasised that he could not control the applicant’s perceptions of his presence. He reiterated that he remained objective and impartial, and the historical disciplinary context had no bearing on his assessment during the interview process. He stated that the charges against the applicant were ultimately withdrawn.
74. He referred to Bundle A, page 55, and emphasised that he held no personal interest in the matter. He had only a professional interest in ensuring the fair selection of a suitable candidate. He denied having any relationship with any of the candidates. On Bundle A, page 52, he confirmed that he had no involvement with the school’s records in 2023 and could not comment on the retention of records or recordings.
75. He stated that questions were likely derived from a list supplied by the resource person, and that there were no model answers—only key trigger words that scorers might look for. He affirmed that scoring was based on candidates’ responses. He also noted the passage of time, emphasising the difficulty of recalling specifics from an event nearly five years prior.
76. Mr. Francis noted that if the scoring sheets were destroyed, he could not comment further. He maintained that he had no personal interest or relationship with the applicant and did not act in a biased manner.
77. He stated that the secretary was responsible for forwarding written notes and scoring sheets, and that he did not alter his score. He indicated that any score changes should be made with justification, although he personally made none.
78. He referred to Bundle A, page 38, and stated he could not recall who scored what, as the interviews occurred nearly five years prior. He reiterated that if score scribbled sheets were destroyed, he gave them to Resource Person or Secretary he had no knowledge of their current status.
79. He confirmed that, to his knowledge, no unions lodged grievances post-interview, and stated that Mr. Van Leeuwen, as principal, had disciplinary involvement with the applicant. However, he emphasised that he did not believe Mr. Van Leeuwen was biased, describing him as a man of integrity.
    ANALYSIS OF EVIDENCE AND ARGUMENTS
80. The applicable provision is section 186(2)(a) of the LRA, which defines an unfair labour practice to include “any unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relating to promotion.”
81. The onus is on the Applicant to prove, on a balance of probabilities, that the employer’s decision not to promote him was unfair.
82. In reaching this decision, I have had due regard to the provisions of ELRC Collective Agreement No. 3 of 2016, titled “Guidelines for the Conduct of Promotion Arbitrations”, which is binding on all parties and commissioners under the auspices of the ELRC.
83. In terms of clause 6.2 of the Guidelines, a promotion dispute includes a claim that the employer has acted unfairly in not promoting the employee and that such unfair conduct must be assessed in light of the employer’s conduct during the recruitment and selection process.
84. In Arries v CCMA & Others (2006) 27 ILJ 2324 (LC): An employee must prove that the employer acted irrationally, capriciously, for insufficient reasons, or on the basis of bias. In Noonan v Safety and Security Sectoral Bargaining Council & Others (2012) 33 ILJ 2597 (LAC): While there is no right to promotion, the process must be fair and the employer must be able to justify the decision.
85. Goliath v Medscheme (Pty) Ltd (1996) 17 ILJ 760 (IC): If irregularities and bias taint the process, the employer must provide compelling justification for its decision.
86. The respondent’s case is that the interview process was conducted in accordance with HRM Circular 13 of 2020; that all panel members were appropriately appointed and acted within the scope of their authority; that the applicant was treated fairly; and that Mr. Naidoo was the best-performing candidate in the interviews.
87. The applicant’s case is threefold: (1) that the panel was biased due to prior disciplinary history; (2) that the procedure was irregular, notably due to the destruction of documents and lack of recordings; including an I.C member that wasn’t properly constituted (3) that he was unfairly scored despite being the better candidate.
88. The applicant, Mr. R. Balgovind, led extensive evidence in support of his claim that the appointment process to the Deputy Principal post at George Campbell Technical School was procedurally and substantively unfair. His main contention was that two of the scoring panelists, Mr. Van Leeuwen (the principal) and Mr. Francis (the IC chairperson), should have recused themselves due to their prior involvement in disciplinary actions against him. He maintained that their continued presence on the panel created a reasonable apprehension of bias, which prejudiced his candidacy. The applicant asserted that he was the best candidate due to his qualifications and the number of years of experience he had.
89. The applicant further submitted that the process lacked procedural fairness because the scorers’ notes were destroyed, no recording of the interviews was kept, and the minutes did not capture sufficient detail of the responses and scoring. He argued that the absence of documentation rendered it impossible to assess the justification of the scores. He also contended that one of the panelists, Mrs. Young, had not been trained, and that this too compromised the integrity of the process.
90. During cross-examination, the applicant confirmed that he made a deliberate decision, advised by his trade union, not to raise his concerns before the interviews but to lodge a grievance thereafter. He acknowledged that he did not formally request intervention from the Department prior to the interviews and conceded that had he done so, the outcome may have been different. He insisted that his experience and qualifications made him a better candidate than Mr. Naidoo, the second respondent, and alleged that the scores he received were unreasonably low.
91. The applicant’s witness, Mr. Van Leeuwen, confirmed that he was part of the panel but denied any bias. He testified that the applicant was treated like any other staff member and that the process was consistent and professionally conducted. He stated that scoring was based on the responses given during the interview and that scores were divided equally amongst three scorers. He acknowledged prior disciplinary complaints involving the applicant but denied that this influenced the scoring. He was firm in his view that he had no obligation to recuse himself as there was no personal conflict of interest. He further confirmed that the interview process followed departmental policy and that neither he nor the resource person were informed of any misconduct during the process.
92. Mr. Mark Francis, the first respondent’s witness and the chairperson of the IC, echoed similar sentiments. He confirmed he had no personal relationship with the applicant and did not recall any concerns being raised by the applicant or the union during or after the interviews. He stated that scoring was done independently, that each panelist marked privately, and that the final score was calculated based on the average. He acknowledged that the applicant had previously been involved in disciplinary proceedings but stressed that these had no influence on his assessment. He maintained that all candidates were treated equally, and that the integrity of the process was upheld.
93. The applicant testified at length that he was the most suitable candidate for the Deputy Principal position, citing his extensive teaching experience, qualifications, and past acting roles. He conceded that the appointed candidate met the minimum requirements but contended that his own greater experience should have rendered him the preferred choice. This argument, however, is legally flawed and inconsistent with the applicable regulatory framework governing promotion processes in the KwaZulu-Natal Department of Education. HRM Circular 13 of 2020, which governs the appointment process for promotional posts, stipulates at paragraph 4.2 that candidates must merely “meet the minimum educational qualifications, statutory requirements and experiential requirements” to be eligible for appointment. Specifically, for the Deputy Principal post, paragraph 4.2.1 requires a “recognised 3 or 4-year teacher education qualification, registration with SACE, and at least 5 years of actual teaching experience.” Nowhere does the circular provide that having substantially more experience or higher qualifications than other candidates should confer preference, nor does it allow for a quantitative advantage to supersede fair process and performance-based assessment.
94. In line with this, South African labour law is clear that promotion is not an automatic right, but a discretion exercised by the employer, provided it is done lawfully and fairly. As held in Arries v CCMA & Others (2006) 27 ILJ 2324 (LC), an employee cannot demand appointment solely on the basis of being more experienced or qualified, so long as the successful candidate meets the minimum requirements, and the process is substantively and procedurally fair. Similarly, in Noonan v Safety and Security Sectoral Bargaining Council & Others (2012) 33 ILJ 2597 (LAC), the Labour Appeal Court reiterated that an arbitrator may not interfere with the employer’s discretion unless it was exercised capriciously, irrationally, or with bias.
95. Therefore, the applicant’s reliance on his comparative experience—while perhaps relevant in a subjective sense—is immaterial in law. Once all candidates satisfy the minimum threshold set out in HRM Circular 13 of 2020, it is the fairness of the process, interview performance, and institutional fit that determine the outcome—not the quantum of experience or qualifications.
96. The applicant advanced extensive evidence to support his contention that Mr. Van Leeuwen and Mr. Francis ought not to have served on the Interview Committee (IC), arguing that their prior involvement in reporting misconduct allegations against him rendered them biased and that this allegedly influenced the scores he received. However, this argument, while earnest, is not supported by law or policy. It is settled that a school principal, such as Mr. Van Leeuwen, is obligated to report complaints or incidents of misconduct that come to his attention in the ordinary execution of his duties. That he discharged this responsibility and that such allegations were later withdrawn does not render him unfit to perform other statutory or policy-aligned duties, such as serving on an IC.
97. In terms of paragraph 18 of HRM Circular 13 of 2020, recusal is only required where a member of the interview committee or governing body has a “personal interest” in the matter. The circular does not provide that prior involvement in reporting misconduct, or issuing a warning, in the absence of any demonstrated malice, constitutes such an interest. Nor does it establish that a principal’s lawful execution of duties precludes him from future involvement in related institutional functions. The principal’s dual role first, as a complainant forwarding allegations to the Department, and second, as an IC member is not mutually exclusive. Each was undertaken in his official capacity and within the scope of his authority as the head of the institution.
98. Jurisprudence supports this interpretation. In MEC for Education, Gauteng v Mgijima & Others (2016) 37 ILJ 1320 (LAC), the Labour Appeal Court held that for an allegation of bias to succeed, it must be shown that the individual had a direct or substantial interest in the outcome or that their conduct gave rise to a reasonable perception of bias. In this instance, the applicant failed to provide credible evidence that Mr. Van Leeuwen or Mr. Francis had such an interest or had acted in a manner giving rise to a reasonable apprehension of bias. Mere involvement in earlier disciplinary reporting, absent more cannot give rise to a finding of procedural unfairness. It is a speculative and unfounded assumption that undermines the principle of lawful delegation of duties within the institution.
99. The applicant further advanced the argument that Mrs. Young, one of the panelists in the interview committee, was not properly trained and that this resulted in her awarding him a higher score than he deserved. While this submission, at face value, may raise concerns about the panel’s consistency in applying scoring criteria, it paradoxically undermines the applicant’s own case. If, as the applicant contends, Mrs. Young lacked the requisite training to score candidates appropriately and this resulted in her awarding him an inflated score, this would not constitute prejudice against him, but rather an unintended benefit in his favour. Moreover, the applicant’s simultaneous assertion that Mr. Van Leeuwen and Mr. Francis deliberately scored him lower than warranted suggests internal inconsistency in his argument.
100. On the one hand, the applicant claims he was disadvantaged by being scored unfairly low by two panelists; on the other, he critiques the third panelist for scoring him too highly. This contradiction weakens the applicant’s prejudice and detracts from the overall coherence of his case. If Mrs. Young’s alleged lack of training led to a score that was higher than merited, it would not serve as evidence of an unfair labour practice as contemplated under section 186(2)(a) of the Labour Relations Act, but rather would raise concern about general panel competency—an issue that did not adversely affect the applicant’s position. In Noonan v Safety and Security Sectoral Bargaining Council & Others (2012) 33 ILJ 2597 (LAC), the Court reiterated that to succeed in an unfair labour practice dispute relating to promotion, the applicant must show not only that the process was flawed, but that the flaw resulted in unfair prejudice to the applicant. In this instance, no such prejudice arises from the score attributed to him by Mrs. Young.
101. What emerges from the collective evidence is that while the applicant had legitimate concerns regarding the historical relationship with certain panel members, he opted not to act on them prior to the interviews despite acknowledging the potential prejudice. Moreover, his union representative, who was present during the process, did not raise any objections either.
102. The respondent’s witnesses, both Mr. Van Leeuwen and Mr. Francis, were consistent in their evidence, and their version was not meaningfully contradicted. They explained the scoring method, the uniform treatment of candidates, and the reasons why they believed no recusal was necessary. While both witnesses acknowledged prior disputes with the applicant, they convincingly argued that these did not create bias nor influence the interview process. The applicant failed to provide independent corroboration of his allegations of bias or procedural irregularity. However, the evidence before me does not support a conclusion that Mr. Francis harboured any actual or perceived bias
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103. Mr. Francis testified under oath that he had no personal relationship with the applicant and that he discharged his role in accordance with the responsibilities entrusted to him by the SGB. He confirmed that he independently scored all candidates, and that the process was conducted in a consistent, fair, and transparent manner. The applicant did not produce any independent or corroborative evidence to rebut this version.
104. The applicant submitted that he was scored unfairly by panelists, particularly Mr. Van Leeuwen and Mr. Francis, and that the destruction or non-availability of the scorers’ handwritten notes amounted to procedural unfairness. The applicant contended that scorers’ notes were destroyed and that this hindered his ability to verify how his answers were scored There is no legal or policy requirement in HRM Circular mandating the retention of individual scorers’ handwritten notes beyond the formal EHR 10 assessment forms. Paragraph 11.3 of HRM Circular 13/2020 provides that relevant records are to be kept for two years; however, it refers to structured interview documentation such as the final scoring sheets, minutes, and ranking forms—not to informal or draft notes. The evidence shows that the EHR 10 forms were completed, the scores were individually determined and then averaged to produce the final score, which is a permissible and fair approach to candidate assessment. In NAPTOSA obo Pienaar v Gauteng Department of Education (ELRC225-18/19GP), it was held that if the scoring forms and consolidated scores are preserved, then the absence of handwritten notes does not vitiate the process. Thus, in this instance, the retention of EHR 10 forms satisfied procedural requirements.
105. The applicant expressed concerns over the fairness of the process, these concerns are not substantiated by either objective evidence or breaches of legal or procedural norms. Most of the allegations were speculative, lacked documentary support, or were contradicted by the respondent’s witnesses. The panel’s conduct and documentation complied with the minimum standards required in terms of HRM Circular 13 of 2020.
106. The mere existence of prior disputes or disciplinary processes does not automatically disqualify a panelist, particularly in the absence of demonstrated personal animus or improper conduct. There is no evidence that the scores were manipulated or that the process deviated from established procedures to the applicant’s detriment. The applicant’s reliance on destroyed notes and lack of audio recordings is weakened by the absence of a policy or obligation to retain such materials beyond what is recorded in the EHR 10 form or formal minutes.
107. The applicant conceded during proceedings that Mr. Naidoo met and in fact exceeded the minimum requisite years of experience for the post and held an equivalent qualification. The evidence further demonstrates that Mr. Naidoo was a strong and suitably qualified candidate who distinguished himself during the interview process. No credible evidence of bias or favouritism was adduced. Moreover, the applicant was ranked third in the overall scoring and would not have been eligible for appointment even in the hypothetical scenario where Mr. Naidoo did not meet minimum requirements.. Accordingly, the applicant has failed to discharge the onus of proving an unfair labour practice relating to promotion.
108. Upon a careful evaluation of the evidence presented by all three witnesses, I find that the applicant has not established that the process leading to the appointment of Mr. Naidoo was either procedurally or substantively unfair.
109. In light of the above, and having duly applied the principles and framework established in ELRC Collective Agreement No. 3 of 2016, I find no basis in fact or law to conclude that the non-promotion of the applicant constituted an unfair labour practice.

AWARD

110. Accordingly, I find that the respondent, the Head of Department of the KwaZulu-Natal Department of Education, did not commit any unfair labour practice relating to promotion against the applicant, Mr. Ramesh Balgovind.
111. The matter dismissed.

ELRC Arbitrator:

Date: 02 April 2025