IN THE ELRC ARBITRATION
BETWEEN:

NUPSAW obo BC NAICKER Applicant
and
THE DEPARTMENT OF HIGHER EDUCATION AND TRAINING 1st Respondent

ALBERT VUYANI MBOTHO 2nd Respondent

ARBITRATION AWARD

Case Number: ELRC733-23/24KZN

Date of arbitration: 10 July 2024 and was finalised on 13 May 2026.
Date of award: 08 July 2026

Mandlakhe Khawula
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
DETAILS OF HEARING AND REPRESENTATION

           DETAILS OF HEARING AND REPRESENTATION

1. The arbitration commenced on 10 July 2024 and was finalised on 13 May 2025. Save for numerous dates on which the hearing was postponed, the proceedings continued for 16 days. The hearing was held at the offices of Esayidi TVET College, in Port Shepstone.

2. The Applicant, Ms. Bernedette Cecilia Naicker (applicant), was present and represented by Mr. M. Mzindle (Mzindle), a union official from NEHAWU. The 1st Respondent, the Department of Higher Education and Training, was represented by Mr. L.I. Hlabe (Hlabe), Assistant Director Labour Relations.
3. The 2nd Respondent, Mr. Albert Vuyani Mbotho (2nd respondent), was also present and represented by Mr. S. B. Mkhize (Mkhize), a union representative from SADTU. The parties provided their bundle of documents. The proceedings were digitally recorded. Parties requested to submit their closing arguments on 25 May 2026. I accepted the request, and parties complied. Due to the complex nature of this matter, I also requested extensions to submit the award which were granted.
4. The services of an interpreter were never requested.

 ISSUE TO BE DECIDED

5. I am required to determine whether the 1st Respondent failure to promote the applicant constituted unfair labour practice. As a relief sought, the applicant seeks to have the interview process declared unfair, setting aside the appointment of the 2nd respondent and an order to rerun the process.
   BACKGROUND
6. The applicant was employed by the respondent on 16 March 2009 as a Post Level 1 (PL1) Lecturer. She responded to an advert for a position of Senior lecturer NCV which was published on 4 November 2022. When the dispute arose, she was earning R25 395.50 per month, the annual salary was R304 746.00. She challenges both procedural and substantive fairness of the recruitment and selection process. The applicant led evidence on numerous irregularities that are alleged to have rendered the selection process flawed. Both the 1st and 2nd respondents insist that the process was procedurally and substantively fair. The issues raised were inter alia that the sifting and interview panel was not properly constituted; unsigned minutes were used; the advert was tailor made to allow the 2nd respondent who is from the Report 191 (NATED) stream to qualify for the post; the chair of the interviews set as chairperson in the grievance process; the 2nd respondent was unqualified due to lack of qualifications and experience; the 2nd respondent did not have a Business or management Diploma but possessed a Bachelor of Administration (BAdmin) ; the 2nd respondent’s referees were members of the interview panel, the 2nd applicant submitted a falsified Z83.
7. The 1st respondent disputed such evidence save to say that the Chairperson who is also Acting principal, had to sit as chairperson of the grievance process as an Accounting Officer. During the opening statements, Hlabe conceded that during the selection process, Mr. Migochi was the Chairperson, but he was not part of the interview process. He had to leave due to an emergency. Ms. Mpanza was an HR Manager but at that time acting as Assistant Director Labour Relations. Her position allowed her to be a player and a referee. The 2nd respondent had more than 19 years of experience as a lecturer. The equity target is African male.

SUMMARY OF EVIDENCE AND ARGUMENTS

8. This is a summary of the evidence relevant to the dispute, which assisted me in reaching my findings.
   The Applicant’s case
9. The applicant was a single witness. She testified that as a result of the irregularities and favoritism during the selection process, she was not appointed, but an unqualified 2nd respondent was promoted.
   Experience
10. She is currently a Post Level 1 (PL1) Lecturer in the NCV Program. She has 13 years’ experience in the NCV and 11 years in NATED or Report 191 programs respectively. She has been the Subject Head for the English Language for the past 12 years where she controls the functioning within the English Department. She conducted workshops, set standardised assessments, and moderate the assessments in accordance with the Regional and Provincial requirements and policies. She has been the Chairperson of the Standardisation Assessment Committee for the Provincial and Regional level.
    Educational Qualifications and skills
11. She has a National Diploma in Accounting; PGC in Education; Honours in Education Management. She obtained Practical’ in Teaching Practices from UNISA in relation to education. She has Assessor, Moderator and Facilitator skills. She has a Design and Develop Accessor’s Certificate and other Certificates in relation to acts of misconduct and poor performance of learners and under-performing lecturers. She also obtained a 100% pass rate in both NCV and Report 191 programs.
    Advert tailor made
12. She testified that she applied for a Senior Lecturer General, Post Level 2 (PL2), salary level R353 979- R419 367.00 per annum. She applied because she has the qualifications and lecturing experience. She testified that the advert was tailor made to suit other candidates because with an NCV post, candidates must have NCV related qualifications and experience and not Report 191 because these are different programs with various policies and procedures in their functioning. The advert should not have included Report 191 lecturing knowledge or experience in an NCV post. It was the first time that such programs would be combined in an advert. She referred to the Recruitment and Selection Policy which states that an advert shall not favour, prejudice or discriminate against any applicant. It further says that an advertisement must be consistent with the job content and post requirements, be brief and clear. This is the reason why she questions the inclusion of Report 191 to the NCV program because these programs are different and run separately . The policy further states that the advertisement must be aligned to the job profile used during the job evaluation .
13. In respect of the lecturing experience in the NCV program, she testified that the 2nd respondent only has one year experience as a lecturer in the NCV program which he acquired in 2014. He only taught Office Practice level 2. To accommodate the 2nd respondent, the advert was drafted to require 3 years’ lecturing experience in the TVET Sector . It further stated that a candidate must have sound NCV or Report 191 subject knowledge and work-related applications. In comparison, the applicant referred to a 2024 advertisement for a Senior Lecturer Report 191 Business Studies published by the respondent where the advert was crafted as follows “Minimum three years relevant experience, of which recent (Technical Vocational Education and Training College) Report 191 classroom teaching experience is essential ”. The applicant testified that likewise, the NCV advert should have been specifically aligned to NCV. The advert must speak to the core functions to be performed by the incumbent . The advert for the Senior Lecturer Report 191 is specific to the program.

14. The applicant further testified that the advert , required relevant recognized tertiary qualification bachelor’s degree or National Diploma in Business Studies/Management. The 2nd respondent has a B Admin degree which is not relevant to business studies but relevant to Report 191. B Admin relates to Report 191 program where public administration is the subject taught in the Public Management Program. In business studies, the 2nd respondent only has N4 and N5 Certificates in Business Management . He does not have N6 in Business Management, his diploma in incomplete. Therefore, the 2nd respondent did not meet the minimum requirements. The evidence of the applicant was supported by Hlabe who submitted that both the applicant and the 2nd respondent did not meet the minimum requirements in relation to the required qualifications. The applicant insisted that she met the minimum requirements.

Shortlisting

15. The applicant stated that the 2nd respondent’s shortlisting form was never completed compared to hers . The applicant testified that during the short listing, each panel member is furnished with the form. She stated that her form shows under phase 1 that she has a National Diploma, Sace certificate. In phase 2 the number of years of experience in NCV program is indicated. In the applicant’s form, it is simply written in. The selection committee was unfair. They were not given same treatment. This also shows that there was favoritism. The selection and assessment process should be credible, consistent, fair and transparent[1]. 
    
    Interviews
16. The interviews were conducted on 16 February 2023. The Interview Committee (IC) members were Mr. I.M. Madla (Madlala) African Male and Chairperson; Mr. R. V. Naidoo Indian Male who is Acting Campus Manager for Nyenyezi Campus; Mr. C. J. Van Rensburg a White Male who is Campus Manager Port Shepstone. There were 2 union observers Mr. Mr. S.B. Mkhize from SADTU who the 2nd respondent’s representative and Mr. S. R. Cele is a union representative from NEHAWU. There was also Mr. Mpanza the Assistant Director HR who was introduced as a secretary and Mr. Gcolothela the HR Officer. The applicant testified that she felt intimidate as the IC panel was composed of males only. She stated that according to the policy, panel members should be balanced in terms of race, gender and disability . In this panel, there was no female. The Chairperson must also be employee at least one level higher to be post filled .
    Employment Equity Policy

17. The applicant testified that during the selection process, the Employment Equity (EE) policy was not followed. Her understanding of the EE is that an EE member should be present during the interviews . The EE committee members should form part of the selection panel in the recruitment process. During the interviews, she was never informed of any employment equity target. The minutes are also silent on that issue. During her interviews, no member from the EE committee was present. The panel was only composed of Campus Managers. The composition of the panel did not comply with the Recruitment and Selection policy.

Record keeping

18. The applicant testified that her interview was not electronically recorded as per the policy requirement which says that all interviews must be recorded both manually and electronically by the HR Scribe and minutes approved by the chairperson . The minutes must also be signed by the chairperson. The minutes submitted at this arbitration were not signed and approved by the chairperson . During her interviews, she was never informed that Madlala was standing for Migochi. However, her interviews records show Migochi as the Chairperson.

Grievance

19. The applicant led evidence that following the failure by the respondent to appoint her, she lodged a grievance which was scheduled for 12 April 2023 . The chairperson Migochi promised to issue his finding within 10 days. Despite an email sent to him on 21 June 2023, enquiring about same, he failed to issue the outcome. The applicant stated that she then decided to lodge a dispute with the Council.

Irregularities

20. Migochi, who was the chairperson during the shortlisting and once again set as the chairperson of the grievance committee . Mr. V. R Naidoo was member of the IC and a referee in the 2nd respondent’s CV. Mrs. Van Niekerk was member of a short-listing committee and a referee in the 2nd respondent’s (VC) hence conflict of interest. Her name is reflected on the Declaration by members of the shortlisting committee, and she also signed the document . She also signed the attendance register of the shortlisting process . The applicant stated that if a person is a referee for the candidate, clearly, that person would speak on behalf of the candidate. That shows a direct relationship with the candidate. The applicant should have disclosed his relationship with his referees in par 1.4 of the Interview Integrity Check form but failed to do so. It is also not mentioned in the minutes that there was such disclosure.

Score sheets

22. The applicant testified that her scores were manipulated. She testified that candidates were scored according to their responses to the questions. If one look at the 2nd respondent scores is 8 and 9s. The responses she gave were more or less the same, but she was always scored differently or less. She referred to question 2 . This question is about what happens during the exams. The applicant provided 9 points answer but was scored at 7.3 by Madlala. The same Scorer Madlala gave the 2nd respondent a score of 8 where he gave an 8 points answer . In another incident, scorer Y Naidoo in question 2, gave the applicant a score of 7 having provided 8 correct answers . He gave the 2nd respondent 7 points, but this score was later changed to 8 . The applicant testified that these changes were made after the candidates had left, this is irregular. It looks like the scorers were giving candidates one mark for each correct score. However, VC Van Rensburg in question 2 gave a score of 9 to be applicant which was changed to 8. He then gave the applicant a score of 8+. Van Rensburg was not using points. This is also an irregularity. Some panel members were noting the answers provided by the candidate and some were not recording.

The 1st Respondents Case

23. The 1st Respondent led the evidence of Mr. Sbongiseni Richard Cele who testified that he is a member of the union NEHAWU, he was present during the short listing as an observer. He did not witness any irregularities. Under cross examination, he confirmed that the EE policy was never discussed. He testified that Migochi signing the minutes of the interviews was irregular because he did not chair the interviews, he left earlier and Madla took over.
24. Another witness of the 1st respondent Ms. Cynthis Buyisile Mpanza testified that she is an Assistant Director HR since 1 November 2019. During the interviews, she was a Scriber . She confirmed that after Migochi had left the IC, he appointed Madlala who took over a chairperson. The IC members were Mr. I.M. Madlala, C.J. Van Rensburg and Mr. VR Naidoo . She testified that the EE of the College was presented during the interviews. The minutes of the interviews were taken . Van Niekerk was replaced by Naidoo. Mpanza remained the only female. She testified that the questions were managerial centered because the position was supervisory. She stated that the senior lecture must possess more knowledge of the subject compared to lecturers they supervise. She testified that she was not part of the shortlisting process. She confirmed that any evidence she led about the shortlisting was based on the norm as she was not there. She stated that the filling of information in the form shows that the panel had checked and verified the qualifications. The testified about the EE and stated that the target is African male, it means they need more males than females. The EE had no effect because an Africa male was the highest. Under cross examination she testified that minutes do not need to be signed. It was put to her that Cele testified that the EE was never discussed, she insisted that it was discussed during the interviews. However, she conceded that no such discussion was recorded in the minutes. When questioned about her evidence that the employment equity target was African males, she changed that position and stated that in fact prior to the advert, the EE target was African females. Under cross examination, she denied that the presence of Naidoo and Van Niekerk in the IC and Shortlisting committee constituted conflict of interest because that issue is not covered in the declaration . She conceded that Naidoo and Van Niekerk did not disclose their referee’s status. She conceded that the 2nd respondent had a criminal record for drunken driving . Seeing that the offence was committed some 20 years ago, they only requested clearance certificate to remedy the situation. She admitted that the 2nd respondent did not declare that he had a criminal record. He was not the first person to do so. She conceded that the 2nd respondent comparator Mr. Zela declared the criminal record. She testified that falsification of documents is not norm, particularly in relation to declaring criminal records. The 2nd respondent was subsequently appointed because he submitted a clearance certificate. She stated that if the 2nd respondent had not accepted the offer the applicant would have been appointed because that day employment equity was not considered. She further stated that if the 2nd respondent was disqualified because of verification issues, they would have considered the second-best candidate which was the applicant in this case. She testified that she does not know if the administration of NCV and Report 191 programs is the same.
25. Madlala testified that as chairperson of the IC He stated that they only declare conflict of interest relating to blood and marriage relationship. Under cross examination, he testified that all proceedings must be recorded both manual and electronical by the HR Scribe and minutes must be approved by the Chairperson . He stated that electronically means that there must be an audio recording. In the IC process in question, they did not record electrical. When asked about the criteria they used when scoring the candidates, he averred that they would listen to the candidate and score according to what they heard. He testified that it did not happen with him that a candidate who gave more information got less points. When questioned as a chairperson as to why the applicant’s score was scratched , he said he does not know. When he was questioned about a score of 8+ that was given to the applicant by Van Rensberg, his response was that he had never heard of such. It was put to him that he was the Chairperson, he is accountable for what transpired during the interviews, he said he did not check the score sheets. It was put to him that in his evidence he testified that he signed the minutes, what was he signing for. His response was that the score sheets were not part of the minutes .
26. The last witness, Migochi, testified that he was the chairperson of the IC, however, due to a work-related emergency, he had to excuse himself. He testified that when they conducted the personal credential verification for the 2nd respondent, fingerprints were taken. It was found that he had a criminal record . The report reflects that on 15 September 2006; he was arrested and convicted to for drunken driving and paid a fine of R2000.00 . The results were produced on 22 March 2023. It is standard that once there is a discrepancy between the Z83 and findings on the record, a candidate will explain why he did not declare. This is what happened to the 2nd respondent. An email was written to him on 17 August 2023, requesting him to provide reasons for his failure to disclose a criminal record on the Z83 and the Integrity form. In the middle of the Z83 application form , the 2nd respondent says he has never been convicted or found guilty of a criminal offence. In the interview integrity check form, paragraph 1.3, the 2nd respondent is asked the same question, where he said he had no criminal record. He signed a declaration in Z83 that all the information provided is complete and correct to the best of his knowledge. He understands that any false information provided will result in his application being disqualified or disciplinary action taken against him if he is appointed . The 2nd respondent provided a response where he apologised. After receiving the letter, they decided not to take the matter any further. They felt it was not a serious case. However, conceded that the 2nd respondent falsified the application document, Z83 and that falsification of documents is a serious offence. The explanation he provided was “I would like to clear the fact that I didn’t lie nor mislead the college panel that shortlisted and interviewed me, with my limited law knowledge I was made to believe that my 2006 driving under the influence of alcohol case was long expunged. I was made to believe that such minor cases disappear after ten years, and at the time I applied more than 16 years had gone by…”. When the applicant was made aware of the criminal record, he was already in possession of the clearance certificate that was issued on 11 May 2023 . When the 2nd respondent submitted his response, the verification process had been done. Probably because he gave proof that he had no elicit report, the outcome of the new verification was captured on 20 September 2023. A new report with no elicit was retrieved . They receive a legal opinion where they were advised that if the candidate genuinely misunderstood the process, and clearance obtained, the respondent may consider it as non-malicious . When I asked Migochi to look at the question asked in Z83, and the answers that the 2nd respondent provided, he conceded that he lied.
27. He testified that he does not think that the 2nd respondent’s referees should have declared that fact nor recused themselves. They were not related to the 2nd respondent. The post in question was advertised externally. He conceded that to list the 2nd respondent as the recommended candidate was unprocedural . He does not know how it happened. He conceded that in terms of the policy , the panel must rank the candidates according to 1, 2, and 3 choices for each position. He conceded that by signing the request for the approval of promotional appointment. When signing the recommendation, he conceded that he did not disclose that he was also the chairperson of the grievance process. He conceded that the case quoted in legal opinion was decided in 2024 whereas the appointment was made in 2023.
    The 2nd Respondent’s version
28. The 2nd respondent testified as follows, he was employed on 1 February 2005 as a Business Development Facilitator, training Co-operatives and SSMEs, a program funded by the Department of Economic Development in the Province. He was then hired by the 1st respondent because the said program was run by FET colleges at that time. They were training learners at different colleges. When the program was phased out in 2011, he was absorbed and converted to a lecturer. He did not possess a teaching certificate. The teaching qualification was requirement but was relaxed. In 2015, he graduated with a National Professional Diploma in Education (NPDE) which was a 3-year program. In 2018, he graduated with a Bachelor of Public Administration from MACOSA. In 2017, she did training with UNISA, a program in Training Practices for educators and Trainers.
29. He met the requirements of the post in question. In the advert the post required a lecturer with experience in Report 191 or NCV. Public admin is a degree in management. At Nyenyezi Campus, they have 2 programs, NCV and Report 191. The NCV is junior to Report 191 because a student who studies under 191 acquires a certificate that is equivalent to a matric certificate. Whereas in Report 191, is studying towards a diploma. Therefore, a lecturer who teaches Report 191 automatically qualifies to teach NCV. The two programs are managed by one HOD. The content that is taught in NCV is junior and 191 is senior.
30. In terms of experience, he qualified, in 2014, he taught NCV, he has one year experience in teaching NCV. The position advertised was for Senior Lecturer in the NCV program. He was better experienced compared to the applicant. He has been with the respondent for 21 years. When the NCV was introduced in 2007, he was part of the college establishment but not involved in it. He has been in the college Council representing the staff. That alone exposed him to governance and management matters. He has been a College Implementation Committee member put together by the National Department. He believed he was overqualified, but not better qualified than the applicant. However, better experience based on earlier stated reasons. He does not dispute that the applicant is by far more experienced than him in teaching NCV. He stated that he has a degree in management, the applicant has Honours degree in Education, which was not a requirement. The applicant has a PGCE Certificate which she obtained in one year and a 3-year Diploma. His NPDE was a 3-year qualification. He stated that he is not an expert in qualifications.
    Criminal record
31. The applicant testified that he submitted his application documents on 14 November 2022. He only found out that he had a criminal record when Mrs. Bodenstein, Acting College Principal wrote a letter him asking why he should not be disqualified after finding out that he had a criminal record. The information he provided in Z83 was to the best of his knowledge as per the declaration . Having a criminal record was not going to be an automatic disqualification. To say no to the answer in Z83 where he asked whether he had been convicted for a criminal offence , was not falsification of document because he did not know that he had a criminal record. He testified that in 2006, he was driving a friend’s car. He was arrested in a roadblock for drunken driving. He was released on a R1000.00 bail. He signed a warning statement to appear in court. In court he was assigned a lawyer from the Legal Aid Board. The attorney admitted guilt on his behalf. He paid the admission of guilt fine of R2000.00. He told him that he had sorted it out, he may go home. He was happy that he was going home. In 2022 when he applied for the post in question, he received the letter from Bodenstein in 2023 informing him that he had a criminal record. He went to the police station; he was told to pay R65.00 to apply for police clearance. The police told him that normally such record that are minor disappear after 10 years. At that time, it was already 16 years. He testified that he understood what the question wanted from him. He testified that the explanation he is providing at this arbitration is different from the one he gave to the respondent about the issue of criminal records. The reason is that there was no space for lengthy explanation. When he realized that the letter from Mrs. Bodenstein is dated 14 August 2023, he changed his version and testified that prior to Bodenstein letter he had already been informed of the criminal record.
32. Best Candidate
33. He was a union leader, Secretary of the branch for more than 6 years. He sat in the interviews and shortlisting meetings as an observer, hence got an exposure. He answered the questions until the timekeeper stopped him. The 8 candidates that were shortlisted were best.
34. He does not believe that the post was tailor made because he had no friends at HR. If it was tailor-made, it would have been structured in line with his qualifications.
    ANALYSIS OF EVIDENCE AND ARGUMENTS
35. I am called upon to determine on the balance of probability whether the 1st Respondent failure to promote the applicant constituted unfair labour practice in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 (LRA), which reads, any unfair act or omission that arises between an employer and an employee involving, unfair conduct by the employer relating to promotion, demotion, probation or training of an employee or relating to the provisions of benefits to an employee. It is not in dispute that in casu, the dispute relates to promotion.
36. It is trite that an employee who alleges unfair labour practice bears the onus of proving the claim on the balance of probability. The employee must prove not only the existence of the labour practice, but also that it is unfair . It has been established that mere unhappiness or a perception of unfairness does not establish unfair conduct .
    Referees’ involvement in the shortlisting and interviews
37. The case of the applicant was more concerned with favoritism and irregularities during the selection process. The first issue which is not in dispute that I must deal with is that of conflict of interest in that the 2nd respondent was shortlisted and interviewed by his referees Van Niekerk and Naidoo. The applicant testified that favoritism occurred because two of the 2nd respondent’s listed referees sat for the shortlisting and on the interviewing panel. In South African public sector recruitment and the system of recruitment and selection generally, panel members are required to declare any conflict of interest with job candidates. Having a candidate’s active referees sit on the panel creates a structural or apprehension of bias. It is a well-accepted fact that a referee is, by definition, an advocate for the candidate’s professional capabilities. It is impossible for a panel member to objectively assess a candidate if they are simultaneously acting as a formal voucher for that candidate’s performance. Such conduct is, in my view, unjustifiable and constitutes a severe procedural irregularity. Migochi, who is the Principal of the TVET College, testified baldly that there was no conflict of interest because the panel members Naidoo and Van Niekerk were not related to the 2nd respondent. He referred to the declaration by members of the shortlisting committee , in clause 2 where it reads “To withdraw from the committee should we have a personal interest (by virtue of blood relationship and marriage) in any application for the post or we consider that a close relationship with an applicant compromises our impartiality in the selection process”. Migochi’s testimony in this regard reveals a fundamental, legally flawed interpretation of the very clause he is relying on. He is guilty of selective reading and has completely ignored the second half of the sentence, which explicitly destroys his argument. This clause properly interpreted, contains two distinct independent triggers for withdrawal, separated by the disjunctive word “or”. In law and language, the word “or” creates an alternative. It means a conflict occurs if either condition is met. Let’s look at, trigger 1, “To withdraw from the committee should we have a personal interest (by virtue of blood relationship and marriage) in any application….”, Migochi argues that because the parenthetical text explicitly names “blood relationship and marriage” only family members are excluded. The flaw in his logic is that he failed to understand that this is only the first part of the rule. If the clause ended there, he might have a technical argument. But it does not. Trigger 2” … or we consider that a close relationship with an applicant compromises our impartiality in the selection process”. The actual meaning: this second part is entirely separate category. It deliberately expands the definition of a conflict beyond family ties. “Let’s dissect the phenomenon of the ‘close relationship’”. A referee -applicant dynamic is, by definition, a close professional relationship. A referee is someone who has worked closely enough with a candidate to formally vouch for his character, skills and suitability. Another phrase to look at is “compromises impartiality”, the moment a panel member agrees to act as a referee for a candidate, he has already formed a favorable opinion of that candidate. He is no longer impartial. He has an active advocate for that candidate. In my view, the clear purpose of this declaration is to safeguard the integrity, fairness and objectivity of the public sector hiring process. Interpreting it to mean that panel members can interview their own best friends, business partners, or handpicked proteges simply because they are not married or related by blood, leads to absolute absurdity. It completely defeats the anti -corruption purpose of the declaration. In a famous and old case of President of the Republic of South Africa v South African Rugby Football union (1999) (CC), the Constitutional Court set out the test for bias: it is whether a reasonable, objective, and informed person would reasonably apprehend that the decision-maker would not bring an impartial mind to bear. In the case before me, clearly, a reasonable person looking at the shortlisting and interviewing panel where two members are the 2nd respondent’s formal referees would instantly apprehend bias. Migochi as the Principal of the Institution, had a fiduciary duty to uphold the highest standard of objectivity. His testimony proves that he failed to understand or he deliberately chose to misinterpret his own committee’s code. The two panel members, Naidoo and Van Niekerk, had a close relationship with the 2nd respondent as referees that severely compromised their impartiality. Under the very close Migochi quoted, they had a strict duty to withdraw from the committee. Their failure to do so, and Migochi or Madla’s failure to recuse them, rendered the entire selection process unlawful and unfair. By signing the declaration and proceeding to shortlist and interview and score the 2nd respondent, the two panel members committed a direct breach of their written undertaking and actively participated in a compromised process. They acted in bad faith which in my view directly connects to why the applicant’s scores were later altered downwards from 8 to 7 by Naidoo. It would appear that the panel was actively engineering a predetermined victory for the 2nd respondent. I will deal with this issue later.
38. Grievance process conflict of interest
39. The second conflict of interest involves Migochi directly. It is not in dispute that he participated in the selection process. He was the chairperson of the shortlisting committee and the IC . It is common cause that he relinquished the IC chairmanship position after he had participated in the crafting of the questions of the interview . He also signed the declaration by members of IC . He was one of the members of the selection committee who recommended or supported the appointment of the 2nd respondent. According to the evidence of the applicant, conflict of interest arose when he sat as chairperson of the grievance committee to adjudicate the applicant’s grievance. It is not in dispute that despite email communication from the Mzindle who was represented the applicant enquiring about the outcome of the grievance hearing, Migochi failed to deliver the outcome. The applicant had to lodge the dispute with the Council without the said outcome. Mr. IM Madlala, who replaced Migochi and the chairperson of the IC and Naidoo, who was also member of the IC, participated in the grievance hearing as representatives of the employer . In other words, members of the selection committee, being the interview and IC members respectively participated in the grievance process to defend their decision.
40. Migochi chaired the shortlisting committee, helped craft the interview questions, signed the IC declaration, and formally recommended the 2nd respondent. He then sat as the Chairperson of the grievance committee to adjudicate the applicant’s formal complaint regarding the very selection process he oversaw. By sitting as a judge over a grievance that directly challenged his own committee actions, he committed gross breach of administrative justice. He had a direct, vested institutional and personal interest in dismissing the applicant’s grievance to validate his own prior decisions. To compound this bad faith, he deliberately suppressed the grievance outcome, ignoring formal enquiries from the applicant’s representative. This calculated silence was a clear attempt to frustrate the applicant, run down statutory timelines, and block her from accessing justice. The applicant was forced to refer the matter to the Council blindly, without the employer’s formal response. The inclusion of Madlala and Naidoo inside the grievance panel as employer representatives is fatal to the employer’s case. Madlala and Naidoo could only legally participated in the hearing as witnesses called to account for their actions. Migochi allowing them to act as employer representatives inside the grievance structure meant that the individuals who engineered the unfair scoring which I will deal with later, were now given the administrative power to cross-examine the victim, control the narrative, and defend their own irregularities from within the grievance hearing room. In my view, the grievance process was not an objective investigation; it was a coordinated defense mechanism. The Nemo Iudex in Sua causa principle and reasonable apprehension of bias are absolute standard in South African law. In Turnbull Jackson v Essential Investments (Pty) Ltd (2014) CC, the Constitutional Court reaffirmed that decision-makers must be free from any institutional or personal bias. Turning to the case before me, when the person who created the disputed decision (Migochi, Naidoo and Madlala), sits in judgement or control of grievance process, a reasonable apprehension of bias is not just likely, it is an absolute certainty, President of South Africa v SARFU . In Mohlala v Minister of Justice (LC), the Court held that where an employer establishes a disciplinary or grievance forum comprised of the very individuals involved in the dispute, the proceedings are a nullity because the forum lacks the fundamental institutional independence required to deliver a fair hearing. It is my finding on the balance of probabilities that the conduct of Migochi, Naidoo and Madla created reasonable apprehension of bias.
41. The scoring irregularities
42. I now deal with the scoring irregularities. The summary of the evidence of the applicant in this regard is in paragraph 22 of this award. In response thereto, there is Madlala’s evidence as the Chairperson of the IC in paragraph 25 above. In a nutshell, the applicant stated that her scores were manipulated. Her scores were altered downwards, and it is common cause that such changes were not recorded in the minutes of the IC. A critical scrutiny of the evidence presented and factual breakdown of the interview scoring sheets , reveal systemic, mathematical and administrative manipulation, I will provide reasons for such conclusion. The interview scoring process was not an objective, merit-based assessment. Instead, it was an artificial, procedurally flawed process characterized by systemic manipulation, a total breakdown of administrative oversight, and deliberate disregard for regulatory safeguards. The evidence of the applicant regarding the physical alteration of score sheets remains uncontroverted and exposes bad faith designed to ensure pre-determined outcome in favour of the 2nd respondent. The record reflects a stark of mathematically indefensible divergence between the actual substance of the candidates’ responses and the scores they were allocated. On question 2 referred to above , pertaining to protocols, the applicant delivered fact based and correct responses satisfying nine separate criteria. No evidence was led to suggest that the answers provided by the applicant were incorrect or inadequate. Despite providing superior answers, the Madla awarded her deflated score of 7.3. Conversely, on that exact question, the 2nd respondent provided an inferior 8 points response yet was awarded with 8 points from Madlala . In public sector employment, a selection panel does not possess unfettered license to score candidates whimsically. Even logic dictates that scoring a candidate who provide more correct information lower than a candidate who provides less information violates the foundational principle of administrative rationality and fairness which is paramount in labour law. As established in Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South Africa [200] ZACC, the exercise of public power must be rationally related to the purpose for which that power was given. Therefore, I have no doubt that in a recruitment process, the allocation of scores must rationally mirror the objective performance of the candidates. Furthermore, if an employer implements a structured scoring matrix, it is bound by the internal logic and mechanics of that system. In Strydom v Board of the SABC [1997] 1 BLLR 113 (LC), the labour court affirmed that arbitrary deviation from a designated selection matrix to disadvantage a specific candidate constitutes bad faith and amount to unfair labour practice. Madla’s explanation under cross examination that the panel simply scored according to what they heard is an admission of unguided subjectivity that directly contradicts the requirement for administrative fairness. Labour law in general is about fairness, that is what I am called upon to determine in this matter.
43. It is vivid from the evidence presented that the physical integrity of the selection documents was profoundly compromised. Evidence proved that score sheets were manually altered after the candidates had vacated the interview room. Specifically, Naidoo manually adjusted the 2nd respondent’s score upward from 7 to an 8 on question 2. On the same question Van Rensburg executed unexplained alteration on the 2nd respondent’s sheet and applied a cryptic and unquantifiable “8+” notation to the applicant’s sheet , while completely failing to record the substance of the candidates’ answers. The 1st respondent failed to call Van Rensburg to testify to explain a glaring irregularity, a fatal omission in its defence. In Elgin Fireclay Ltd v Matthews [1992] ZASCA 121, the SCA held that such a failure justifies the inference that the witness’s testimony would have exposed irregularity or damaged the party’s case. In this case, simply because the author of the altered documents, Van Rensburg was not called to testify, the applicant’s prima-facie case of document manipulation becomes conclusive proof. As supported by State v Boesak [2000] ZACC 25, uncontroverted evidence of document tempering that remains unaddressed by the creator must be accepted as fact. The physical changes to the score sheets were targeted, unexplained and unminuted, pointing directly to coordinated effort to artificially influence the promotion of the 2nd respondent. It would appear that the systemic manipulation of the scoring sheets was exacerbated by a comprehensive failure of institutional oversight. Madlala, who served as the Chairperson of the IC and signed off on the final recruitment minutes, admitted under cross examination that he did not check the score sheets before doing so. He further asserted the legally untenable proposition that the score sheets were not part of the minutes. It is common knowledge that score sheets in the recruitment and selection environment are the vital, foundational annexures that justify the final recommendations contained within recruitment minutes. Therefore, certifying the fairness of the selection process while remaining intentionally blind to altered and scratched out scores represents a gross abdication of fiduciary duty. I therefore conclude that Madla’s claimed ignorance does not absolve the 2nd respondent. By signing off on a corrupted tally without verification, Madlala insulated a flawed administrative act from internal review, directly facilitating unfair labour practice against the applicant.
44. The recording of the IC process
45. I now deal with the issue relating to the recording of the interview process as a mandatory non-compliance. It is common cause that the recruitment policy in Clause 4.2.4 (k), explicitly dictates a double safeguard mechanism in that all interview proceedings must be recorded both manually and electronically. Madlala conceded that the panel failed to conduct an electronic audio recording. In my view, this was not a minor technical oversight; it was a flagrant violation of a mandatory policy directive designed to preserve institutional integrity. The purpose of an electronic audio backup is to provide an unalterable, objective quality assurance trail, precisely to prevent panel members from executing port-interview adjustments, such as those performed by Naidoo and Van Rensburg. By failing to record the audio, the 2nd respondent effectively destroyed the primary evidentiary benchmark against which the disputed score sheets could be verified. In Head of Department, Limpopo Province v Settlers Agricultural High School [2003] ZACC 15, the Constitutional Court held that public education authorities are bound by strict adherence to recruitment regulations. Disregarding mandatory procedural directives compromises the entire administrative process and invalidates the resulting appointments. The panel’s failure to capture electronic audio, viewed alongside the unexplained score changes, satisfies the conclusion that the objective quality trail was purposefully omitted to prevent oversight and mask favoritism. It would appear that had the applicant scores not been artificially deflated by Madlala and Naidoo including the role played by Van Rensburg, and the 2nd respondent scores not been inflated post interview, the applicant would have emerged as a clear number one ranked candidate. Despite all the manipulation, the applicant still remained a close second best on points. The 1st respondent’s scoring manipulation represents an egregious breach of basic administrative fairness.
46. Was the advert tailor made
47. There is overwhelming evidence that demonstrates that the advertisement for Senior Lecturer NVC was manipulated from its inception. It would appear that the 1st respondent adjusted the job criteria to eliminate competing candidates, artificially restricting the candidate pool, solely to accommodate the 2nd respondent’s deficient profile. The applicant successfully exposed the tailored nature of the 2022 criteria by presenting the employer’s own 2024 advertisement for senior Lecturer Report 191 Business Studies post. The 2024 advertisement strictly mandated a minimum of 3 years relevant experience, of which recent TVET Report 191 classroom teaching experience is essential. The evidence led by both parties showed that Report 191 are entirely distinct educational pathways within the TVET sector. The applicant correctly demonstrated that as a matter of curriculum design and public policy, these streams operate under completely different legal framework structural syllabi and student assessment procedures as the 2nd respondent correctly stated that after completion, an NVC student is awarded a certificate equivalent to a metric while the Report 191 a diploma. Since there was no expert witness called I took time researching the veracity of the evidence led by the parties in this regard. Despite these deep structural and operational divides, the 2022 advertisement stated that candidates must possess a sound NVC or Report 191 subject knowledge and work-related application. It further generalized the required experience to “3 years of lecturing experience in the TVET sector rather than demanding focused, classroom-specific NCV experience. The contrast between the two advertisements reveals a highly inconsistent and unfair recruitment standard. I say so because when advertising a Report 191 post, the 2nd respondent treated Report 191 classroom experience as non-negotiable and essential. However, when advertising the NCV post, it diluted the requirement, allowing Report 191 experience to serve as a blanket alternative to NCV knowledge. This structural deviation directly violated the 2nd respondent’s own Recruitment Policy, which explicitly dictates that an advertisement must be brief, clear, must not favour or prejudice any applicant and must speak directly to the core functions to be performed by the incumbent as established during the job evaluation profile.
48. The rationale behind these relaxed, blended criteria becomes obvious when evaluating the 2nd respondent’s actual experience. The objective record shows that the 2nd respondent possessed only one year of NCV teaching experience, which he acquired nearly as decade prior in 2014, teaching a single module, Office Practice Level 2. The 2nd respondent conceded under cross examination that the applicant was by far better experienced than him in the NCV program, noting that he had never been involved in the curriculum since its introduction in 2007. It would appear that by broadening the advert’s language to accept generic “TVET sector experience” and “Report 191 knowledge” the 1st respondent intentionally masked the 2nd respondent’s severe deficit in NCV classroom instruction. This allowed him to bypass the shortlisting filter to the direct prejudice of the applicant who possessed 12 years as an active Subject Head. In labour law, a recruitment process is declared procedurally and substantively unfair when an employer adapts or stretches a job profile in an advertisement to match a favored individual rather than fulfilling objective operational needs. In George Municipality v IMATU obo Bennet and Others (C413/2013) ZALCCT 27, the Labour court held that an employer acts arbitrary, capriciously, and unfairly when it departs from rational, objective job specifications to favor a preferred individual. By tailoring the 2022 advertisement, the IC built favoritism into the very foundational phase of the recruitment cycle. Clearly, this structural defect was designed to validate the shortlisting of an otherwise unsuitable candidate, rendering the entire subsequent selection process unfair.

The falsified Z83

44. The 1st respondent through Migochi led evidence admitting that the 2nd respondent was convicted of driving under the influence of alcohol on 15 September 2006 and was sentenced to a fine of R2000.00. The 2nd respondent had a criminal record. By answering “no” to a question where he was asked if he has ever been convicted or found guilty of a criminal offence (including an admission of guilt), in the Z83 , and repeated this false statement on the employer’s integrity check form, the 2nd respondent falsified the recruitment documents. The wording of the Z83 form is completely unambiguous, leaving no room for a layperson’s misinterpretation. The form explicitly states that any false information will result in immediate disqualification. The issue is not entirely about the criminal record. A criminal record that is disclosed is excusable, but lying about it, is not. Upon reading the text in Z83, Migochi was forced to concede that the 2nd respondent lied. The 2nd respondent presented two entirely contradictory, mutually exclusive versions of his state of mind, thereby destroying his credibility. In his written response to Bodenstein’s inquiry (version A), the 2nd respondent stated that based on his limited law knowledge, he believed his case of drunken driving had long expunged. In his oral testimony at this arbitration, he abandoned version A, claiming that he did not know that he had a criminal record at all. He testified that his Legal Aid Attorney admitted guilt on his behalf and told him that he had sorted this out, he paid R2000.00. The 2nd respondent new version was that he left court without understanding that he was convicted. When asked why he did not include this ignorance narrative in his written letter to the management (Bodenstein), he claimed that there was no space in the letter. When shown the physical document he sent to Bodenstein, which was an email , and asked how an electronic email or letter lacked physical space for an explanation, the 2nd respondent was entirely unable to answer. In a desperate bid to cover up the 2nd respondent’s lie, Migochi testified that when the 2nd respondent was confronted about his failure to disclose a criminal record and the falsification of the Z83 and the integrity check form, the 2nd respondent was already in possession of the police clearance certificate. This was exposed as fabrication. The 2nd respondent initial testimony was that he only applied for clearance after receiving Bodenstein’s formal email inquiry on 17 August 2023. However, when confronted with the physical clearance certificate, which was inexplicably dated 11 May 2023, he suddenly changed his version claiming an unnamed HR official had phoned him prior to receiving a letter from Bodenstein. He could not remember who called him, nor could he explain why if he obtained the certificate in May 2023, did not submit it to the 1st respondent or why Bodenstein was still writing to him in August 2023 demanding answers. Under cross examination, the 2nd respondent conceded that his testimony at this arbitration was completely different from his written explanation to management. It is clear that the 2nd respondent was shifting his version dynamically, building a false narrative as the hearing progressed based on the questions he observed being put to Migochi about the same subject matter. The timeline of the 2nd respondent’s vetting process reveals an unacceptable and highly suspicious administrative delay. The illicit background check report revealing the 2nd respondent’s conviction was produced on 22 March 2023. Yet the 1st respondent management sat on this explosive information for months, issuing a rule to show cause letter via Bodenstein on 17 August 2023. Despite the 2nd respondent’s written admission that he knew of the conviction but presumed it had vanished, Migochi testified that management decided not to take the matter any further because they felt it was not a serious case, and the 2nd respondent had apologised. This is a profound and fatal administrative irregularity. He later conceded that falsification of recruitment documents is a serious offence. However, by actively choosing to bury a confirmed case of fraud to protect a preferred candidate, the 2nd respondent acted with bad faith. In G4S Secure Solution (SA) (Pty) Ltd v Ruggiero NO and Others (DA3/2015) ZALAC 54; (2017) 38 ILJ 881 (LC), the LAC ruled that the employee’s false misrepresentation that he had no criminal record was a material misrepresentation which went to the heart of the employment relationship. It is trite that when a witness presents multiple shifting, and contradictory versions under oath their evidence must be rejected. I reject the 2nd respondent’s explanation in this regard. The 1st respondent’s decision to accept his apology and not take the matter further because they deemed criminal record and document fraud not serious, is a serious abuse of power. It serves as damning proof as argued by the applicant party that the 1st respondent was determined to appoint the 2nd respondent at all costs, completely disregarding the law, its policy and the superior, honest candidacy of the applicant. It is my finding on balance of probability that the 2nd respondent appointment is legally indefensible for so many reasons and even on misrepresentation alone.
45. In promotion disputes, the applicant bears the onus to prove not only that irregularities occurred, but also that he was the best candidate who ought to have been appointed, reference is made to the National Commissioner of the SA Police Service v Safety and Security Bargaining Council and Other (2005) 26 ILJ 903 (LC) par 10-12. In the matter before me, the applicant successfully proved material irregularities in the composition of the panel and dishonesty by the 2nd respondent, he also discharged the burden of proving that he was the best candidate. In SAPS v Inspector Zandberg & others (2010) 31 ILJ 1230 (LC); Manana v Department of Labour & others [2010] 6 BLLR 664 (LC), the Court stated that provided that the successful candidate has been joined as a second respondent, the arbitrator has the discretion, irrespective of the relief requested by the applicant, to set aside the appointment of the successful candidate.
46. The 1st respondent attempt to raise the issue of employment equity (EE) target must fail. Firstly, the 1st respondent conceded that the 2nd respondent was not appointed based on employment equity. In my view raising the employment equity target issue was an afterthought. Its testimony regarding the EE collapsed under cross examination, revealing a complete lack of organizational consistency and objective planning. The 1st respondent admitted on record that the 2nd respondent was not appointed based on EE consideration. However, it was raised as a secondary defence arguing that if the appointment were set aside, it would negatively impact their demographic targets because the required target for the post is African male. Under thorough cross examination this defence dissolved. When confronted with their own tracking metrics and data, the position changed to state that the actual demographic target for the position was Africa female. This shows that the 2nd respondent was actively inventing a defense during the hearing rather than implementing a pre-formulated, lawful EE strategy. The 2nd respondent cannot use contradictory demographic assertions as post hoc realization to shield a flawed and irregular recruitment process from being overturned. Mpanza’s testimony was clear that if the second respondent had not accepted the offer the applicant would have been appointed as the 2nd best candidate because that day employment equity was not considered. Mr. Richard also testified that during the shortlisting the EE was never discussed. This version corroborated that of the applicant who testified that during the interviews there was no discussion about the EE. In Gordon v Department of Health: KwaZulu Natal [2008] ZASCA 99, SCA established that in the absence of rational, preexisting, and systematically applied affirmative action plan at the exact moment a hiring decision is made, an employer cannot retroactively cite transformation goals to justify an otherwise flawed selection process.
47. In this case, as empowered by legislation, I order direct promotion and appointment of the applicant for the following reasons, the but -for -test is fully met. It is clear from the evidence and my findings that once an ineligible candidate is removed and the applicant’s suppressed scores are mathematically restored; the applicant is substantively and numerically the number one candidate. The 1st respondent conceded that the EE was not considered on the day of the appointment, and the shifting testimony about the post demographic target (moving from African Male to African Female), proves that the target was a fabrication. Therefore, this unconsidered EE target cannot be used to lock out a top performing candidate from a designated group (Indian female). Mpanza an HR Manager explicitly confirmed that the applicant was the definitive second-best candidate and would have been appointed immediately had the 2nd respondent been disqualified. Because the 2nd respondent must be disqualified by law, the applicant’s right to the post is a foregone conclusion. In my view, wasting public funds to run a protracted re-advertisement cycle when a fully qualified applicant is before this forum on an uncorrupted record is economically irrational.

48. In light thereof, it is my finding on the preponderance of probability that the applicant has discharged the onus of proof that the 1st respondent’s failure to promote her constituted procedurally and substantively unfair labour practice.

49. In view thereof, I will make the following award.
    Award
50. I accordingly find that the conduct of the 1st Respondent constituted unfair labour practice, and it was unfair.
51. The appointment of the 2nd Respondent, Mr. Albert Vuyani Mbotho, to the post of Senior Lecturer NCV General is set aside with immediate effect.
52. The 1st Respondent the Department of Higher Education and Training is ordered to directly appoint the applicant Ms. Bernedette Cecilia Naicker into the position of Senior Lecturer NCV General (Post Level 2.
53. The appointment must be made retrospectively to the date on which the 2nd Respondent was originally placed in the role of Senior Lecturer NCV General.
54. The 1st Respondent is ordered to pay the applicant the retrospective salary deferential within the post Level 2 scale (R353 -R419 367) and all backdated benefits, to be processed and paid on or before 30 July 2026.

MANDLAKHE KHAWULA
ELRC ARBITRATOR