08 June 2026 – ELRC1264-25/26KZN

IN THE MATTER BETWEEN:

Rishi Arjun Sivnarain Applicant

And

KwaZulu-Natal Department of Education Respondent

ARBITRATION AWARD

Case Number: ELRC1264-25/26KZN

Date of Award: 08 June 2026

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

The matter was enrolled before the Education Labour Relations Council (the ELRC) under case number ELRC1264-25/26KZN. The Applicant, Mr Rishi Arjun Sivnarain, was represented by Mr R. Juguth, an official of NAPTOSA. The Respondent, the KwaZulu-Natal Department of Education, was represented by Mr W.B. Ntshangase, Deputy Director: Human Resource Management, UThukela District.
The parties agreed that the matter be determined as a stated case, on facts that are common cause together with their written heads of argument. The Applicant began. No oral evidence was led.
The parties were afforded an opportunity to file written closing arguments. Closing arguments were awaited from 22 May 2026 and, to date, none have been submitted. As the matter is a stated case raising a discrete question of interpretation or application, and the parties had already filed full heads of argument directed at that question, the absence of closing arguments has occasioned no prejudice. The award is issued on the common cause facts and the heads of arguments.
BACKGROUND
The dispute arises from the staffing of Ethangeni Combined School for the 2026 school year under HRM Circular 38 of 2025, the procedure manual that gives effect to ELRC Collective Agreement 4 of 2016 and KZN PELRC Collective Agreement 1 of 2017.
Following a decline in learner enrolment the school was required to declare additional one Departmental Head, among other educators, additional to the post establishment. The Applicant, the Departmental Head for Mathematics and Science, was the educator so declared as additional. He contended that the school applied the governing provisions incorrectly. The Respondent contended that the declaration was correct.
The matter was referred to the Council as an application or interpretation of Collective agreement. For the reasons set out below, it is properly a dispute concerning the interpretation and application of a collective agreement.
ISSUES TO BE DECIDED
The proper meaning of clause 5.6.9.4, read with clause 5.6.9.4.1, of HRM Circular 38 of 2025, and whether the Respondent applied the correct test when it identified the Departmental Head for Mathematics and Science as additional to the establishment.
If so, to order the appropriate relief.

COMMON CAUSE FACTS

The Applicant has held the post of Departmental Head (Post Level 2) for Mathematics and Science at Ethangeni Combined School, which offers Grades R to 12, since 1 June 2003, with more than 22 years of uninterrupted service at that post level.
Before the 2026 staffing process the establishment comprised one Principal, two Deputy Principals, five Departmental Heads and thirty Post Level 1 educators.
A decline in learner enrolment required the school to declare a number of Post Level 1 educators and one Departmental Head additional for 2026. This dispute concerns only the reduction of the Departmental Head establishment by one post.
At a formal staff meeting on 4 November 2025 the Applicant was declared the additional Departmental Head. He was temporarily transferred to Biggarsberg Primary School with effect from 1 January 2026, the receiving School Governing Body declined the placement on 13 January 2026, and he resumed duty at Ethangeni Combined School, where he currently teaches.
The other Departmental Heads were appointed to Post Level 2 in 2014 (two of them), 2016 and 2019. The Respondent accepted that the Applicant is the most experienced Departmental Head at the school.
Whether the enrolment decline lay specifically in the Mathematics and Science stream, and the adequacy of any curriculum analysis undertaken at school level, are in dispute. Those matters were not placed before me as common cause facts and no evidence was led on them in this stated case.
SURVEY OF EVIDENCE AND ARGUMENTS
Applicant’s submissions
The Applicant submitted that he is the Departmental Head (Post Level 2) for Mathematics and Science at Ethangeni Combined School, appointed on 1 June 2003, with more than 22 years of uninterrupted service at that post level. HRM Circular 38 of 2025 is the governing procedure for the staffing of schools in 2026 and serves as the procedure manual for ELRC Collective Agreement 4 of 2016 and PELRC Collective Agreement 1 of 2017.
The 2025 PPN certificate required the school to declare six Post Level 1 educators and one Departmental Head additional. At a staff meeting on 4 November 2025 the Applicant was declared additional, he was temporarily transferred to Biggarsberg Primary School on 1 January 2026, and the placement was rejected on 13 January 2026. He disputed the correctness of his declaration, contending that the school failed to apply clause 5.6.9.4.1 of HRM 38, which prescribes the LIFO principle of seniority at post level.
On procedural fairness, the Applicant submitted that posts are reduced according to the Post Provisioning Norm and not by phase. Clause 5.6.9.4.1 requires that, where two or more promotion post holders compete for the same post, the educator with the highest number of years at that post level be retained. The school declared him additional despite his 22 years at Post Level 2 while retaining educators appointed between 2014 and 2019, which he submitted is a direct violation of clause 5.6.9.4.1. No documented curriculum rationale was provided to override the seniority principle, and the staff-meeting minutes do not reflect a transparent application of HRM 38. Clause 4.4 of Collective Agreement 1 of 2017 requires that the identification of additional educators be conducted in line with Collective Agreement 4 of 2016, and by failing to apply HRM 38 correctly the school breached both agreements.
On substantive fairness, the Applicant submitted that his seniority far exceeds that of his colleagues. The comparative service at Post Level 2 is Mdlalose (2019, six years), Nyoka (2016, nine years), Dlamini (2014, eleven years), Naidoo (2014, eleven years) and the Applicant (2003, twenty-two years), so his tenure is double that of the longest serving retained Departmental Head. HRM 38 requires retention of the most senior educator at post level, and by declaring him additional the school inverted that principle. While HRM 38 permits curriculum needs to be considered, no documented rationale was provided, and Mathematics and Science are core to the curriculum and cannot be arbitrarily reduced.
On the interpretation of the clause, the Applicant submitted that clauses 5.6.9.4 and 5.6.9.4.1 must be read together. Clause 5.6.9.4 provides the context of curriculum needs, while clause 5.6.9.4.1 provides the prescriptive mechanism for selection. The term “promotion post holders” encompasses all educators above Post Level 1, including Departmental Heads, and to confine the seniority principle to Deputy Principals is a narrow and self-serving interpretation that invites arbitrariness. He acknowledged that his earlier argument referred to promotion post holders competing for “fewer” posts rather than the “same” post, submitted that the slip was not deliberate, and contended that the word “same” is in fact more suited to his argument.
On curriculum needs against seniority, the Applicant submitted that the Respondent admitted he is the most experienced Departmental Head, with service dating to June 2003, yet failed to provide objective evidence that the junior Departmental Heads possess specialised curriculum competencies that he lacks. Mathematics and Science are consistently identified as critical curriculum needs, and the assertion that a veteran Mathematics and Science Departmental Head is additional to the needs of a Grades R to 12 combined school is logically inconsistent and substantively unfair. He is not appointed as the Departmental Head of a particular phase but is the Departmental Head for both the GET and FET phases for Mathematics and Science.
On prejudice, the Applicant submitted that the unfair labour practice occurred the moment he was incorrectly identified as additional. Being declared additional fundamentally changes an educator’s status and exposes him to temporary transfer and eventual permanent displacement; the resulting uncertainty and loss of security constitute clear prejudice regardless of whether a placement was finalised. Collective Agreement 1 of 2017 emphasises stability in the staffing of schools and identifying a twenty-two-year veteran for transfer while retaining junior staff contradicts that objective.
The Applicant sought an order declaring the Respondent’s conduct an unfair labour practice and directing that the process of identifying additional educators at Ethangeni Combined School be redone correctly, adhering to the seniority principle for promotion posts as mandated by HRM 38. He relied on ELRC552-22/23KZN (NAPTOSA obo Makhanya), submitting that an adverse inference may be drawn against an employer that fails to follow the collective agreements.
Respondent’s submissions
The Respondent submitted that the 2025 PPN certificate required the school to declare five Post Level educators and one Departmental Head additional owing to a drop in learner enrolment. On 4 November 2025 the additional educators were identified and declared for the 2026 academic year, the criterion being the curriculum needs of the school. A second staff meeting was held on 17 November 2025, at which the Applicant raised concerns about his subjects being left unattended.
The Respondent submitted that on 5 November 2025 the Applicant lodged a grievance which was later withdrawn by his former union, SADTU. He was temporarily transferred to Biggarsberg Primary School on 1 January 2026, rejected by that school’s governing body on 13 January 2026, and currently teaches at his original school. The Respondent prayed for the dismissal of the dispute, contending that the declaration process was undertaken in a fair, transparent and objective manner and was not used as a punitive measure against the Applicant.
On procedural fairness, the Respondent disputed that the staff meeting was required to apply the LIFO principle to identify the additional Departmental Head, because clause 5.6.9.4 of HRM 38 provides that, in determining which educators are additional in promotion posts, the curriculum needs of the school must be considered. The school implemented clause 5.6.9.4 by considering its curriculum needs. The Respondent did not dispute that the Applicant is the most experienced Departmental Head but submitted that he was declared surplus on the basis of curriculum needs. It contended that the Applicant’s heads quoted the clause incorrectly by substituting “fewer” for “same”. Departmental Heads, it submitted, are appointed at the same post level but in different post categories based on their learning areas or streams, and HRM 38 does not require phase-based retention. Clauses 5.6.6 and 5.6.7 set out the steps a school must follow depending on its type, and the school is a combined school in which the drop in enrolment lies in the Science and Mathematics stream.
On substantive fairness, the Respondent submitted that the Applicant was declared additional at a formal staff meeting on 4 November 2025 in terms of clause 5.4.1 of HRM 38, following which the Circuit and District Task Team processes resulted in his temporary placement at Biggarsberg Primary School. Clause 5.6.9.4 requires curriculum needs to be considered first. Clause 5.6.9.4.1 concerns two or more promotion post holders competing for the same post, as with Deputy Principals who may be required to identify one deputy when enrolment drops, in which case LIFO applies. Departmental Heads, it submitted, differ from Deputy Principals because their appointment is based on learning areas, which exist subject to the number of learners in that learning area.
In conclusion, the Respondent submitted that the Applicant was declared additional in a fair, transparent and objective manner, that the school was both substantively and procedurally fair, and that although the Applicant’s long service was considered, curriculum need is the primary criterion in the identification of additional educators. It submitted that the Applicant suffered no prejudice, as he returned to his original school after the placement was rejected, and prayed for the dismissal of the dispute.
ANALYSIS OF EVIDENCE AND ARGUMENTS
Although the parties agreed that the matter be determined as a stated case on a question of law, both sets of submissions extended into disputed factual territory. The Respondent asserted that the decline in enrolment lay in the Mathematics and Science stream and relied on a staff-meeting minute of 17 November 2025, while the Applicant disputed those assertions together with the adequacy of any curriculum analysis. Those are contested questions of fact. They were not agreed, no evidence was led on them, and the nature of a stated case does not permit them to be resolved on assertion from the bar. I have confined the determination to the question of law and the common cause facts, and I have left the contested factual assertions advanced on both sides out of account.
HRM 38 and the agreements it implements are construed by reading the words in their context and in the light of their purpose, sensibly and as a whole (Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA)). Collective Agreement 1 of 2017 exists to secure stability in school staffing, and clause 5.2.1 of HRM 38 requires that the declaration of educators as additional be fair, transparent and objective, and not used as a punitive measure.
Clause 5.6.9 governs promotion posts. Clauses 5.6.9.1 and 5.6.9.2 confirm that a reduction may fall on management posts, and that a Deputy Principal or a Head of Department may be declared additional where the school is no longer entitled to the post. Clause 5.6.9.3 sets the management post norms. Clause 5.6.9.4 requires that curriculum needs be considered in determining which educators in promotion posts are additional, and clause 5.6.9.4.1 provides that, where two or more promotion post holders compete for the same post, the educator with the most years at that post level is retained, subject to stated further factors.
Curriculum needs are the primary consideration. The same order of enquiry appears at Post Level 1 in clause 5.6.4, where the seniority principle applies only once two or more educators compete for the same post after the curricular needs have been taken into account. Length of service does not preserve a post that the curriculum no longer requires. Were a school to discontinue a learning area, the Departmental Head for that area might properly be declared additional however long that educator had served, because the post itself would have fallen away.
The seniority principle in clause 5.6.9.4.1 is not displaced by clause 5.6.9.4. The provisions operate in sequence. Once curriculum needs have been determined, and two or more promotion post holders remain in competition for the same post, the educator with the most years at that post level is retained. Departmental Heads are not excluded from this rule. A Departmental Head holds a Post Level 2 promotion post, the clause refers to promotion post holders without qualification, and clauses 5.6.9.1 and 5.6.9.2 expressly contemplate that a Head of Department may be declared additional. There is no textual basis for confining the rule to Deputy Principals.
Curriculum needs must be determined objectively, and the basis for the determination must be capable of demonstration. Clause 5.2.1 requires a fair, transparent and objective process. A curriculum rationale that is merely asserted, and not established on an objective and recorded analysis, does not satisfy the agreement. Were it otherwise, the curriculum criterion could be used to choose among incumbents at will, which the agreement does not permit.
Whether, on a correct application of the agreement, the Applicant’s post was properly identified as the additional Departmental Head is a different and factual question. It depends on the curriculum needs of the school, the basis on which the reduction was allocated among the learning areas, and the analysis, if any, undertaken at the staff meeting. Those facts are in dispute and were not placed before me. This is a stated case confined to a question of law, and it would be inappropriate to determine a disputed factual justification that the parties did not agree and on which no evidence was led. I make no finding on whether the Applicant ought, on the facts, to have been retained. That assessment falls to be made when the agreement is applied correctly.
An arbitrator interferes with an employer’s exercise of its staffing function on limited grounds, among them a failure to apply the governing prescripts (Arries v CCMA and Others). The misapplication of clauses 5.6.9.4 and 5.6.9.4.1 is such a ground. The correct application of the agreement, including any reliance on curriculum needs and, where it arises, the seniority principle (on the operation of LIFO when educators are declared in excess, see PSA obo Chokoe v Education Labour Relations Council and Others [2016] ZALCJHB 396), is a matter for the school to undertake afresh on the construction set out above.
FINDINGS
The dispute is one concerning the interpretation and application of a collective agreement, and the Council has jurisdiction to determine it.
On the proper construction of HRM Circular 38 of 2025, clause 5.6.9.4 read with clause 5.6.9.4.1 requires that the curriculum needs of the school be determined first, objectively and on a recorded basis, and that, where two or more promotion post holders, including Departmental Heads, thereafter compete for the same post, the educator with the most years at that post level be retained, subject to the stated further factors.
The Respondent’s approach was wrong in two respects of law. First, it treated curriculum needs as an unqualified consideration that dispenses with objective justification, which clause 5.2.1 does not permit. Second, it read Departmental Heads out of clause 5.6.9.4.1, which the text does not support. The identification of the additional Departmental Head therefore did not proceed on the correct construction of the agreement.
The appropriate course is to correct the process rather than to substitute an outcome. The declaration falls to be set aside and the identification undertaken afresh on the correct construction. The disputed question whether the Applicant’s post was, on the facts, correctly identified is not determined and is left for the corrected process.

AWARD

The identification of the Applicant, Mr R.A. Sivnarain, as the Departmental Head additional to the establishment of Ethangeni Combined School for 2026 was not undertaken in accordance with HRM Circular 38 of 2025, clause 5.6.9.4 read with clause 5.6.9.4.1 and is set aside.
The Respondent is directed to conduct the identification of the Departmental Head additional to the establishment at Ethangeni Combined School afresh, within thirty (30) days of the date of this award.
Pending the conclusion of that process, the Applicant remains in his post at Ethangeni Combined School.
There is no order as to costs.