10 June 2026 – ELRC779-23/24KZN

IN THE ELRC ARBITRATION
BETWEEN:

NUPSAW obo S. MAKHAYE Applicant
And
THE DEPARTMENT OF EDUCATION KZN 1st Respondent
And
NDUMISO VUNDISA 2nd Respondent

ARBITRATION AWARD

Case Number: ELRC779-23/24KZN

Date of arbitration: 14 June 2024 and finalised on 09 April 2026.
Date of award: 10 June 2026
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion

DETAILS OF HEARING AND REPRESENTATION

The arbitration proceedings were set down on numerous dates from 14 June 2024, and it was finalised on 09 April 2025. The hearing was held at the offices of the Department of Education in Pietermaritzburg.
The Applicant, Mr. Sandile Thobani Makhaye (applicant), was present and represented by Mr. N. Nyandu, a union official from NUPSAWU. The 1st Respondent, the Department of Education, KwaZulu Natal, was represented by Mr. S. Daniso, the Assistant Director Employee Relations (Daniso). The 2nd Respondent, Mr. Ndumiso Vundisa (2nd respondent), was also present and represented by Ms. S. Memela (Memela), a union representative from SADTU. The parties provided their bundle of documents. The proceedings were digitally recorded.
The services of an interpreter were subsequently required.
Preliminary issue
The preliminary issue raised by the 1st respondent pertained to the incorrect post number 986 instead of 987 cited in the referral form. I ruled that it must be corrected. ISSUE TO BE DECIDED
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
When applying for the position of Departmental Head (HD), the Applicant was employed by the respondent as an Educator PL1. During the interviews, the applicant had already acted as the HD for a period of more than 12 months, hence the evidence that he was more experienced than the 2nd respondent. He applied for a vacant post of HD, post number 987, circular number 20 of 2023, a post level 2. The advert was published on 22 June 2023. The applicant was shortlisted and interviewed. After the interviews, he was ranked as the third best candidate. In April 2024, the 2nd Respondent was appointed to the position.
The Applicant’s case as per his opening statement was that the 1st Respondent’s failure to promote him constituted unfair labour practice in that the process was fraught with irregularities and the non-appointment was procedurally and substantively unfair. According to the applicant, the interviewing committee (IC) was not properly constituted. It was not elected by the School Governing Body (SGB). One member of the SGB was ineligible for the appointment because she did not have a child at school. The procedure to disband the previously elected SGB was not followed. The IC was composed of 3 members. The applicant possessed better experience than the 2nd respondent (the appointee) because he had acted in the position in question for more than 12 months. The 2nd respondent had not acted as a DH. The respondent failed to provide reasons for his non-appointment. The 2nd respondent misrepresented his experience in that he is a member of SAICA, and he had written his articles .
The 1st respondent disputes any unfair labour practice as there was no problem with the applicant being scored by 3 IC members. The IC was elected by the SGB. The respondent disputed that the SGB member Ms. Thembi Mthembu did not have a child at school. The 1st respondent submitted that it has never been practice to tell candidates why they were not appointed. In any event, the applicant never requested for reasons. In respect of the misrepresentation of credentials in the CV of the 2nd respondent, the 1st respondent submitted that they do not dispute that until such time that they do their own verification. The 2nd respondent met the minimum requirements. The process was procedurally and substantively fair. The union representatives were present during the interviews and did not see any irregularities. The 2nd respondent was the best candidate.
The 2nd respondent’s opening statement was that the selection process ran smoothly. The 2nd respondent was a suitable candidate who met all the minimum requirements. The advert required 3 years’ experience; the 2nd respondent had 9 years’ experience in intermediate and senior phase. Prior to becoming a teacher, the 2nd respondent worked in the accounting sector. He did not work as an accountant but gained exposure to the field of accounting. The 2nd respondent admits that he was not a member of SAICA and that he had not written or published any articles. SUMMARY OF EVIDENCE AND ARGUMENTS
I only summarized only the evidence relevant to the dispute, and that assisted me in reaching my findings.
The Applicant’s case
The applicant led the evidence of 4 witnesses. The applicant testified that he applied for a position of HD under post number 987. He directed the arbitrator’s attention to his educational qualifications which are not in dispute anyway . He stated that in March 2018 he was employed as substitute Educator and only in 2019 was he employed on a permanent basis, teaching grades 3 and 4. Currently, he is at Kwa Mpungose Primary School. In 2022, he began acting as a DH. Following his application for the post in question, he was shortlisted for the role and subsequently interviewed on 4 November 2023.
During the applicant’s interview, the interview committee consisted of three members, excluding resource person and the union observer. These members were Mr. Mkhize; Mr. Zulu, (acting Circuit Manager, and co-opted member, who was School Principal at the time), and Ms. Thembi Mthembu (Mthembu). Notably, Mthembu was ineligible to serve on the SGB and IC as she did not have a child enrolled at the school. Only parents of learners can be members of the SGB .
According to the Department practice, 5 members should have constituted IC and may have co-opted additional 2 members. Therefore, the IC was not properly constituted. The IC must be elected and appointed by the SGB. On 08 September 2023, the SGB held a meeting where they elected the IC. The teachers’ component was part of the IC. On 11 September 2023, another meeting was convened where the resource person offered to train the members of IC. The teacher component was not informed of the training but only the parent component. Another meeting which did not end well was convened on 23 September 2023. Mr. Manqele and Mr. Thompson, who were members of the SGB from the teachers’ component, were chased away by the resource person. The shortlisting continued without them. The IC was elected by the parent component. On 08 September 2023, they elected 5 members of IC and co-opted 3. On 26 October 2023, the applicant was invited for the interviews.
The applicant testified that the handwriting in the shortlisting assessment tools is the same . This proves irregularities because the person who scores the candidates must also make comments. Since the handwriting is the same in all score sheets, it means one and the same person could have been scoring the candidates. The role of the scorers is to score each candidate based on questions asked, and write his comment at the end, justifying the score he gave to the candidate.
The applicant testified that he was ranked as the third best candidate . According to the minutes of the ratification process, the date of the meeting was on 4 November 2023, at 16h30. The ratification was done after the interviews were concluded. The minutes of the interviews show that the interviews were concluded at 17h15, on 4 November 2023 but the ratification started at 16h30. This means that the ratification started before the interviews. The applicant further testified that he arrived for the interviews at 13h00, but the minutes recorded that the ratification process started at 12h30.
Under cross-examination the applicant insisted that the shortlisting committee was not properly constituted. It was put to the applicant that the wrong times in the minutes were just typos. He disagreed with the proposition, calling it a lie. However, he conceded that he has no evidence to support the assertion that the ratification took place before the interviews. He was referred to D11 and D21 and told that the handwriting was not the same. He insisted that it is the same.
The second witness of the applicant, Ms. Nokulunga Zondi, testified that she is an Educator and a member of the SGB. She was shortlisted and called for the interviews. She corroborated the evidence of the applicant that there were 5 members of IC instead of 6. Mthembu and Mkhize were scorers and both were members of the SGB from the parents’ component. She stated that the process was not professional. She does not think that Mthembu and Mkhize understood the terminology that the teachers used when responding to questions. The reaction she noticed from Mthembu gave her the impression that she did not understand the discussion. She does not know Mthembu and Mkhize’s level of education.
Under cross examination, she testified that according to the policy, there should have been 6 members of the IC, but they were 5 in total of which 3 were scorers. She was directed to the procedure manual and asked to point where it stipulates that there must be six IC members. She failed to identify the clause that supports her evidence. She conceded that the IC members including Mthembu and Mkhize attended the workshop. However, insisted that the fact that they understand what is happening at the school level, does not necessarily mean that they understood the documents they were talking about during the interviews. She was directed to the score sheet and asked how they scored her if they did not understand. Her response was that anyone can write numbers. It was put to her that the applicant’s evidence is that Mthembu was not a member of the SGB in good standing because she did not have a child enrolled at school. She insisted that she was elected because she was mother of Zamaweza Mthalane who was a learner at the same school, therefore she was a member in good standing.
The third witness of the applicant, Mr. Clint Lindokuhle Thompson (Thompson), testified that he is a member of the SGB at Kwa Mpungose Primary School. He stated that the IC is formed by a minimum of 6 people. He averred that it came to his attention that Mthembu did not have a child at school, hence not in good standing. He corroborated the evidence of the applicant that the resource person, Mrs. Chonco, unceremoniously removed him and Manqele from the IC.
Under cross examination, he conceded that the procedure manual is a reliable source of information regarding the composition of the IC. He was unable to show where it stipulates that there should be 6 members.
The last witness of the applicant party, Ms. Vasco Zamazama Shabalala (Shabalala), testified about the improper manner in which the resource person performed her duties, acting beyond her powers instead of observing the process . The 1st Respondents Case
The 1st Respondent led the evidence of Mr. Sbusiso Goodman Mzomuhle Zulu (Zulu), the Circuit Manager in Edendale. He stated that Kwa Mpungose Primary school is one of the schools under his management. He was a co-opted member of the IC and was a scorer. However, the situation got out of hand when they discovered that there were members of the IC who were absent. The secretary was absent; he was then elected as secretary over and above the role of a scorer. Scorers were taking notes of answers provided during the interviews.
The IC consisted of 5 people. The number of IC members is not prescribed in the circular . The circular is silent on the number of roles an IC member can play during the interviews. The IC agreed and recorded in the minutes that the questions would be interchanged among the scorers, in line with the circular’s requirement that minutes must be kept.
He further testified that the definition of “parent” is taken from the Schools Act. In his interpretation, anyone who assumes full responsibility of a child while it is schooling, e.g. a person who is mandated by the biological parents to assist the child or if parents are unknown, then voluntarily assumes the responsibility
Under cross examination, he failed to show in the minutes where the IC agreed that he would assume two roles. He disagreed with the proposition that performing two roles was irregular. When questioned about the veracity of the information contained in the candidates’ CVs. He stated that they simply listen and score the CVs. They do not know who the candidate is. They judge them according to what they have heard. They accept everything that is in the CV. It was put to him that the 2nd respondent presented himself as a member of SAICA in his CV but admitted that in fact he is not a member. His response was that it is not the responsibility of the IC to verify the correctness of the information presented by the candidates.
The second witness of the 1st respondent, Ms. Nonhlanhla Ruth Chonco (Chonco), testified that she was a resource person representing the department. She has been a Principal at Nichols Primary School in Edendale for 28 years. She was there to advise the IC members. She went through the role of the resource person as expressed in Circular HRM 20 of 2023 . She stated that she also trained the IC members. When debating the issue of demographics in the selection of the IC, she conceded that the IC did not have the teacher component of the SGB. It was put to her that the IC was inconsistent with Clause 12.1.2 of the procedure manual because it was not constituted properly in terms of the demographics of the SGB. She disagreed and stated that the manual says that the SGB needs to select the IC, it does not make it a requirement that the teacher component must be there.
The last witness of the 1st respondent, Ms. Thembi Mthembu (Mthembu), testified that she is a member of the SGB and was IC member during the interviews. She is unemployed. As an SGB member, she had a child Zamaweza Snothando Mthalane (Zamaweza). She was not a biological parent to her, but her sister’s child. They were staying together. Her sister works at ABSA Bank in Johannesburg. She then took responsibility of Zamaweza. She made sure that she went to school on time; she did her homework; and she attended school meetings on behalf of her mother. That is the reason why she became a member of the SGB. She is currently attending a different school in Georgetown, but she is still looking after her as a parent.
Under cross examination, she testified that during the interviews, she never asked questions, but she scored the candidates. Mkhize was the one who was asking questions. Her highest standard of education is grade eleven. Her work experience only extends to general work where her function was to pick up papers on the street and cleaning. She interviewed the Candidates for a position of “Department of Head”, (I am quoting her verbatim). She testified that she was part of the shortlisting committee. She was questioned based on the score she awarded to the applicant during the shortlisting. She was asked to explain how she arrived at a score of 33. Her response was that she did not know, all she wrote where it says score was 11out of 14 (11/14). She was asked to explain what scores mean. She said, “this means things I heard when Makhaye (applicant) was talking, everything he said made sense to me”. She was asked if Makhaye was next to her during the shortlisting, her response was that he was seated across. She was once again asked as to how the IC arrived at the score of 33. She insisted that she was confused how the IC got to 33, all she knows is that her score was 11. She conceded that she has no professional expertise. She testified that she was trained to perform IC related functions.
Both parties submitted their closing argument, I do not intend to regurgitate them in my survey, however, I will refer to those parts that assist my analysis.
ANALYSIS OF EVIDENCE AND ARGUMENTS
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.
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 .
In this case, the applicant testified that the unfair conduct relates to numerous irregularities that occurred during the selection process. The unfair conduct prejudiced him to the extent that it deprived him of the opportunity to be promoted to a position of DH. The case of the applicant is to a large extent premised on the irregularities that are alleged to have occurred prior and during the interviews. I shall first deal with the composition of the IC. It is common cause that other members of the IC are elected from the SGB. Mthembu was elected to the IC based on her membership in the SGB. She was part of the parents’ component, and, for illegibility, she had to have a child enrolled at school in question. It would appear that the only argument raised by the applicant party in this regard is that she was not a biological mother. This argument has no basis hence rejected. In terms of the South African Schools Act (SASA) as correctly argued by the 1st respondent witness, Mr. Zulu, a parent is legally defined as a child’s biological/adoptive parent, legal guardian, the person who has legal custody, or any person who undertakes to fulfill the parental obligations towards the learner’s education at school. Therefore, limiting the concept of a learner’s parenthood strictly to biological ties or to formal adoption is inaccurate and stands to be rejected.
The second issue regarding the composition of the IC, according to the applicant party, it was improperly constituted because it was only composed of 5 members. The composition of the IC is clearly outlined in Clause 10.2 of the HRM Circular no. 20 of 2023 (circular) . In view of the fact that this clause does not stipulate a mandatory number of members of the IC, I reject the argument that the committee was improperly constituted simply by virtue of the number of IC members present for the interviews.
I now turn to deal with the role of the resource person in relation to the appointment of Mthembu as a member of IC. The circular in paragraphs 12.1 and 12.1.1 explicitly provides that one of the functions of the Resource Person, in this case, Ms. Chonco, is to ensure that the selection panel possesses professional expertise. To the contrary, Mthembu only achieved Grade 11 education, she has no matric qualification, and her work experience was limited to general labour functions such as cleaning and street maintenance. Despite this shortcoming, she was included in the IC that assessed candidates for senior academic and managerial post. The circular requires professional expertise within the panel. The inclusion of a member without matric and without relevant professional background is a direct violation of this requirement. This irregularity is in my view not trivial. It strikes at the heart of fairness and the credibility of the process. The irregularity was material based on the fact that, even under cross examination Mthembu was unable to explain how the IC in one of the categories arrived at the overall score of 33. One of the candidates, Zondi, testified that the process lacked professionalism. She noted that two IC members, Mthembu and Mkhize, appeared unfamiliar with standard teaching terminology used during responses. Furthermore, Mthembu’s reactions specifically led Zondi to believe that Mthembu could not follow the discussion. I agree with these sentiments; Mthembu lacked the prerequisite competence to assess candidates for senior posts. Consequently, and unfortunately, candidates were subjected to an evaluation by someone manifestly unqualified. As a result, the fairness and the credibility of the process was compromised. Zondi was only present as a candidate for less than 45 minutes yet noticed a distinct lack of professionalism in the process. I find it hard to understand how the Resource Person and the IC members overlooked such serious irregularity. In my view, this irregularity cannot be confined to one member. The entire panel is implicated. The other members of the IC knew or ought reasonably to have known that one of their colleagues did not meet the professional expertise requirement. They ought reasonably to have observed what Zondi noticed within a short period of time. Their silence and acquiescence demonstrated incompetence and bad faith. Manqele and Thompson, who were members of the SGB from the teachers’ component who would have been familiar with any terminology used were unceremoniously removed from the IC. It is evidence of the 1st respondent that the circular does not prescribe the number of IC members who should conduct the interviews. Clause 10.2.4 of the Circular stipulates that the IC shall comprise Members of the SGB, it does not limit the number but only excludes members who are applicants to the advertised post. The question is why were Manqele and Thompson excluded and Mthembu preferred. A reasonable inference to draw under the circumstances is that their removal and the inclusion of Mthembu was deliberate, intended to manipulate or predetermine the outcome.
It is prudent that I deal with the argument that SGB members are not selected based on educational qualifications. I agree with this submission, SGB members are elected under the provisions of SASA. Their role is primarily governance, representing parents, learners, and the community in school policy decisions. Educational qualifications are not a prerequisite because the law emphasises representation and democracy, not professional expertise. Be that as it may, by contrast, interview panels for promotions are governed by the HRM Circular 20 of 2023, the Employment of Educators Act and other prescripts, which explicitly require professional expertise to ensure merit based and lawful appointments. The circular in Clause 10.8 and 10.8.5 places emphases on ensuring compliance with the basic values and principles referred to in Section 195 of the constitution. This section of the constitution requires public administration to be fair, transparent and merit based. Likewise, PAJA requires decisions to be lawful, reasonable and procedurally fair. Labour law in general is about fairness. An IC member without matric and professional expertise cannot meet these requirements. In view thereof, I reject the premise that SGB members must automatically be included in the IC merely because their selection is not based on qualifications, irrespective of whether they possess the requisite professional expertise. In terms of Clause 10.2.5 of the Circular, the SGB may co-opt additional members from the community who possess expertise that may be required in the recruitment function. In view thereof, the appointment of Mthembu to the IC cannot be justified.
It was argued that members of IC including Mthembu attended a workshop, and that they were trained before conducting the interviews. This argument must fail for the following reasons. In my view, short workshops or orientation sessions cannot confer the substantive professional expertise required to evaluate qualifications, teaching experience, and managerial competence. The circular in 12.1.1 requires existing professional expertise, not temporary familiarity gained through training. The law, as I understand it, requires competence, not coaching. Therefore, the claim that the workshop or training remedied the lack of qualifications or expertise is legally and practically untenable. Therefore, the 1st and 2nd respondent reliance on training or workshop is misplaced. It is vivid that the Circular imposes a non-negotiable duty on the Resource Person, to ensure that the IC members have professional expertise. This duty is proactive, not just symbolic. The resource person must verify that each member is suitably qualified to assess candidates for senior posts. Failure to discharge this duty renders the process defective. No evidence was led to the effect that educational qualifications of IC members, particularly those who are not educators, were verified.
It is common cause that the 2nd respondent submitted a falsified CV. The 2nd respondent conceded during his opening statement that his CV contained false information. He had claimed membership of SAICA and authorship of a published article. He admitted that these claims were untrue. This was after the applicant indicated it would call a SAICA Manager to testify to the misrepresentation. His representative later declined to call him as a witness, and the issue was not ventilated further. The concession in his opening statement therefore stands as unchallenged evidence and must be accepted as a fact. Misrepresentation in recruitment process is a serious act of misconduct. It is clear that the appointment was secured through dishonesty, undermining principles of fairness and merit-based appointment. In South African Post Office Ltd v CCMA (2011) 32 ILJ 2442(LAC) the employee falsified her CV to claim that she possessed a driver’s license to secure a role. The LAC ruled that the dismissal was fair, cementing the precedent that employment gained through deceit cannot be validated. In Department of Home Affairs v Ndlovu (2014), the LAC held that employers may be justified in dismissing employees who have created false impressions regarding their qualifications and skills on their CVs. The Court said, the initial dishonesty in the CV is what underpins the fairness of the dismissal. It is entirely unnecessary for the employer to prove that the falsified experience was the only thing that induced promotion over other candidates.
In the light thereof, it is my finding on the preponderance of probability that the applicant has discharged his onus of proof that the unfair labour practice existed and that it was unfair. However, 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, while the applicant successfully proved material irregularities in the composition of the panel and dishonesty by the 2nd respondent, he did not discharge the burden of proving that he was the best candidate. A possible reason is that the panel was incompetent and tainted by irregularities, hence it is impossible to rely on the scoring or ranking of the candidates it provided. Due to the irregularities, the scoring process itself is unreliable. It cannot be determined with certainty who scored the highest points or who was objectively the best candidate. In view thereof, directing the appointment of the applicant without reliable evidence of his superiority or him being the best candidate would amount to usurping the function of the employer and even acting ultra vires. In my view an appropriate remedy is to set aside the flawed process and order it to be reconvened before a properly constituted panel.
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.
In view thereof, I will make the following award.
Award
I accordingly find that the conduct of the 1st Respondent constituted unfair labour practice, and it was unfair.
The appointment of the 2nd Respondent, Mr. Ndumiso Vundisa, is set aside.
The process must be reconvened from the shortlisting stage.
The entire interview panel is declared incompetent and disqualified from further participation in this recruitment process.
The 1st Respondent is directed to reconvene a properly constituted panel, in compliance with HRM Circular 20 of 2023.
The 2nd respondent, Mr. Ndumiso Vundisa, misrepresentation of experience in his CV is found to be dishonest and disqualifies him from further participation in this recruitment process.