11 July 2025 – ELRC150-24/25KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT PIETERMARITZBURG
CASE NO.: ELRC 150-24/25KZN
IN THE MATTER BETWEEN: –
THUMBOO N APPLICANT

AND

DEPARTMENT OF EDUCATION KWAZULU NATAL 1ST RESPONDENT

DAVID K 2ND RESPONDENT

ARBITRATION AWARD

ARBITRATOR : P. JAIRAJH

DATE OF AWARD : 1 JULY 2025

Applicant’s representative : MR V. NAIDOO

1ST Respondent’s representative : MR S.T. DANISO

2ND Respondent’s representative : MR R. JUGUTH

DETAILS OF HEARING AND REPRESENTATION
[1] This matter was scheduled for arbitration on 17 September 2024, 28 January 2025, 21 February 2025, 11 April 2025 and 23 May 2025 at the Department of Education, 169 Hoosen Haffejee Street, Pietermaritzburg.
[2] Mr V. Naidoo from SADTU represented that applicant (employee), Mr S.T. Daniso represented the 1st respondent (employer) and Mr R. Juguth from NAPTOSA represented the 2nd respondent.
[3] The parties, at the conclusion of proceedings, elected to submit written closing arguments by 30 May 2025 however the first respondent requested an extension as due to the SADTU strike, their offices were locked. Final closing arguments were received on 19 June 2025.
BACKGROUND TO THE DISPUTE
[4] The applicant applied for the promotional post of Principalship at Orient Heights Primary School under Post Number 114 which was advertised by the First Respondent under HRM 20 of 2023.
[5] The applicant was shortlisted and interviewed however she was unsuccessful. The second respondent was the successful candidate and was promoted to the post in dispute.
[6] The applicant referred an unfair labour practice dispute to the ELRC relating to promotion. The applicant contended that there was under due influence, breach of confidentiality, unprofessionalism and a clandestine meeting that was held by the IC chairperson.
ISSUE TO BE DECIDED
[7] I have to determine whether the non-appointment of the applicant to the post in question by the first respondent constituted an unfair labour practice in terms of section 186(2)(a) of the Labour Relations Act, 66 of 1995, and if so, the appropriate relief.
COMMON CAUSE & FACTS IN DISPUTE
[8] At the commencement of the arbitration hearing the parties held a pre-arbitration meeting and agreed on common cause issues and facts in dispute as follows: –
[9] Common cause issues
9.1 Post number 114 (Principalship) was advertised in HRM 20 of 2023.
9.2 The process of shortlisting and interviewing was completed.
9.3 Both the applicant and second respondent were shortlisted and interviewed for the position of principalship at Orient Heights Primary.
9.3 The second respondent was ranked number 1 and the applicant was ranked number 2.
9.4 The IC was properly constituted.
9.5 Shortlisting for the post took place on 24 and 25 September 2023.
9.6 Interviews took place on 13 October 2024.
9.7 The SGB/interview committee was workshopped in respect of the processes.
9.8 Organised Labour SADTU and CTU-ATU were part of the sittings.
9.9 In terms of the shortlisting, the applicant was ranked number 1 with a score of 32 and the second respondent was ranked number 5 with a score of 29.
9.10 The second respondent was appointed to the post on 1 May 2024.
9.11 A grievance was lodged by the applicant and was subsequently dismissed by the District’s Grievance Committee.
[10] FACTS IN DISPUTE
10.1 There was a breach of confidentiality in violation of paragraph 18 of HRM 20 of 2023.
10.2 The resource person had undue influence on the process in violation of the provisions of paragraph 12 of HRM 20 2023 (12.1.4, 12.1.5, 12.1.7, 12.1.11).
10.3 The observers to the process had an undue influence on the process.
10.4 In spite of the alleged training conducted by the Department of Education, the chairperson of the IC conducted himself in an unprofessional manner in violation of paragraph 13 of HRM 20 of 2023.
10.5 The chairperson of the IC called a clandestine meeting with members of the Interview Committee on 15 September 2023. At that meeting, it was decided that Ms Thumboo would not be appointed as principal. It is alleged that the observers were in breach of paragraphs 15.2, 15.4, 15.5 of HRM 20 of 2023.
SUMMARY OF EVIDENCE AND ARGUMENTS
APPLICANT’S SUBMISSIONS
The salient points of the applicant’s witnesses are recorded below.
NIRMALA THUMBOO (hereinafter referred to as “applicant”)
[11] The Principalship interviews took place on Friday, 13 October 2023. In the week ahead, it came to her knowledge that the school’s domestic help, learners and the teachers were talking about a new principal coming to the school.
[12] Following that, in the week of 21 October 2023, while at a finance meeting, the SGB Chairperson, Mr A. Ndlovu (Ndlovu) stopped the meeting and said, ‘Miss Thumboo, before we proceed, I would like to apologize to you. If you hear any rumours, you must ignore them.’ He used an IsiZulu word which she did not understand to refer to these rumours. She told him that this was not the forum to speak about this and she felt that he had breached confidentiality in terms of HRM 20/2023.
[13] After Ndlovu’s utterances, she became a bit suspicious and began to investigate how the rumours started.
[14] She spoke to a SGB member, Rugeshnie Naidoo nee Dwarika (Naidoo) who informed her that a clandestine meeting, consisting of only those SGB members who formed part of the IC, took place prior to the interviews to discuss whether or not she should get the post; and she was immediately taken aback. Allegations were made against her by the IC Chairperson Mr A. Munton (Munton) and Naz Ramaser (Ramaser) that she was unfit to be the principal of the school. Ramaser indicated that she thought that a man should run the school and Munton stated that she was on her phone all the time. There were negotiations about the post and in particular, Munton stated that Mrs L. Govender (Govender), who was a level 1 educator, should get the post of Principalship.
[15] Naidoo told her that she was biased in the interview process. Firstly, Munton informed the IC that he had personally visited her in hospital and that she was not going to make the interview. Further, there was also undue influence by Mr R.V. Moodley (Moodley), the resource person in terms of comments made by him.
[16] At the time she applied for the post, she was the acting principal. She never had any fallout with the SGB and they in fact had praised her for the way she was running the school. When she went for the interview, she did not have any expectations or feel that she was entitled to anything except for a fair process to take place.
[17] When she arrived for the interviews, she was received well by Ms S.B. Ebrahim (Ebrahim). As there was another candidate in the foyer, Ebrahim asked her to take a seat in the office. While she was busy with her work, the SADTU observer, Ms Charlene Harichand (Harichand), who came to call her, was agitated; her facial expression and her gestures showed that she was irritated. She greeted Harichand in a friendly manner; Harichand called her and proceeded to walk out the door. She followed but as she had left her coat on the chair, she went back to get her coat. Harichand came back and asked in a tone, ‘what’s happening’. She was a bit disturbed that she was treated in this manner and she walked into the interview with a feeling that she had done something wrong.
[18] Naidoo told her that before she had entered the interview room, Harichand had blurted out; ‘who the hell does she think she is’. An observer was there to observe that the process was just and fair. She concluded that Harichand probably had a preferred candidate.
[19] The interview process was definitely flawed and she felt that she was prejudiced before the interview could even take place. She believed that she deserved a fair interview process.
Under cross-examination she testified that:
[20] The clandestine meeting took place on 15 September 2023 at Ramaser’s house and according to her knowledge this meeting was not minuted. Other members who were present at this meeting, confirmed that this meeting did take place. The IC was biased towards her in respect of the principal’s post because she felt they had hidden agendas right from the beginning when that meeting took place.
[21] Ndlovu told them not to minute what he said and she could not understand why he was apologising and what rumours he was referring to but she knew that it had to do with the promotion post. Ndlovu breached the confidentiality of the processes because at that stage appointments were not made and nobody was informed but by him apologising to her, he made it known to her that she did not get the post. She conceded that Ndlovu did not specifically say rumours relating to the post.
[22] At that time, the Principalship, Deputy Principalship and Foundation Phase Departmental Head posts were advertised at the school. She applied for and was appointed to the Deputy Principalship post. She agreed that she testified that the IC was unfair towards her and she conceded that the same IC had recommended her for the Deputy Principal post.
[23] She was unsure why when the SGB members indicated that they wanted a male principal; she agreed that a male not appointed to the post in dispute.
[24] She confirmed that she was a member of SADTU and was being represented by SADTU. She agreed that the very same SADTU was present in the promotion process of the Deputy Principal post that she currently occupied. The very same IC conducted the process for the Deputy Principal’s post and she agreed that it was the same IC’s decision that she was contesting for the principal’s post.
[25] Although SADTU was there to protect the rights of its members, in this case, Harichand was not there to represent her due to the way in which she had behaved.
[26] It was put to her that in terms of organised labour, if SADTU was not fair to her then she would not have been appointed to the Deputy Principalship post. She averred that SADTU is there to protect their rights but that was not dependent on the fact that she got the Deputy Principal’s post.
[27] She agreed that she would not be aggrieved if she was appointed to the Principalship post.
[28] It was put to her that she testified that they said they wanted Govender and a male figure for the post therefore how credible was the information that she had received, she averred that it was not one person who gave her this information, other members present at this meeting had the same view that this was said at the meeting.
[29] She agreed that she said that the SGB met in a clandestine meeting and thus agreed that they would obviously have interest around the three posts; she was unsure of the other posts but knew specific mention was made of the principal’s post.
[30] She agreed that the Deputy Principal and Principal posts were based on the interviews. She was unaware that she had been recommended as the Deputy Principal. She had no information as to how the process unfolded for the Deputy Principal’s post thus she could not say if the SGB was biased against her.
[31] Ndlovu said that Munton went to visit her at the hospital, however she was in the ICU and he was not allowed to visit. Ndlovu phoned her before the interviews to ask if she was going to make it to the interviews and prior to the interview, Munton came to the office to question her about her health.
[32] When referred to the confidentiality clause in HRM 20 of 2023, she stated that no specific candidates’ names were mentioned to her at her meeting on 21 October 2022 or in the week prior to her meeting.
[33] It was put to her that in terms of her dispute that she lodged, the only person that seemed to have breached confidentiality was Naidoo, she averred that she believed that Ndlovu did as well at their finance meeting.
[34] She agreed that the confidentiality clause is upheld until the appointment is made. She conceded that she had participated in this breach of confidentiality before the appointment was actually made.
[35] She believed that she was prejudiced in terms of the scoring in the interview process and the fact that prior to the interview, they had already mentioned that they do not want her as a principal.
[36] In terms of the minutes of the shortlisting, she had scored the highest and at this point there was no prejudice against her.
[37] She admitted that she did not have any interaction with Harichand prior to the interviews, when she walked into the room.
[38] During the interview process, she confirmed that the questions were asked in a fair manner and she was given adequate time to answer the questions. She confirmed that apart from Harichand’s irritable looks, there was no interruption during the interviews.
[39] She believed that the interview process was flawed because Naidoo informed her that there was influence from Moodley when the discussion took place with regard to the scores.
[40] When asked exactly what was the undue influence by Moodley, she averred that Naidoo told her that when they were about to score the second respondent, Moodley said, ‘that is a brilliant answer, you’re not going to get a better answer than that’, which influenced the scoring of the other members. When they gave a low score for a certain question, he questioned them and asked them to substantiate their answer. Hence, Moodley influenced the scoring members when he made that kind of utterance; he should be guiding them and not giving his opinion of what it should or should not be.
[41] Moodley was the one and the same resource person that she used as a reference in her application. She chose him as her reference because she put her trust in him that he would be a fair person.
[42] She agreed that the minutes did not indicate any kind of prejudice.
[43] It was put to her that everyone involved in the process signed off the EHR 10 and EHR 11 as free and fair; she agreed that Naidoo was part of the process.
[44] She agreed that at the ratification process, the full SGB can decide on who should be the recommended candidate.
RUGESHNIE NAIDOO (“Naidoo”)
[45] She is part of the SGB Parent Component at the school and was part of the IC for the Principalship post. She confirmed that all the members of the IC were trained.
[46] There was a breach of confidentiality after the interviews were done. At the SGB finance meeting Ndlovu told the applicant that he needs to apologize to her; he told the applicant that if she hears any rumours about her post, it is not true and then he went on to say something in IsiZulu which she did not understand. The applicant asked him to please explain what it means and he told her not to worry and also said that he did not want this to be minuted. She thought Ndlovu was apologizing because the applicant did not get the post.
[47] The ratification was on 15 October 2023 and the next day her children told her that they heard other children talking about a new principal coming to their school. She was quite surprised because she had not shared any information with them.
[48] The applicant phoned her and asked if there was anything that she should be concerned about. She was hesitant at first and was not sure what to say but then she decided to speak the truth; that the whole interview process was not fair because they had a meeting.
[49] She was contacted via a WhatsApp call prior to the interviews by Munton who said that he wanted to have a video chat with her and the other members in the afternoon and she agreed. He called them later in the evening and he proceeded to say that he did not feel that the applicant should be the principal of the school. She told him that that was not his decision to make, which is why they have an interview process and to let them just adhere to it. He was a bit forceful but she did not want to listen to him any further so she cut the call.
[50] When Munton called her the next day and asked if they could have a meeting to discuss the post, she agreed. She could not remember the date Munton called her but it was about 10 days before the shortlisting and interview process. When she asked him if it was a SGB meeting and whether it would be minuted, he responded that it would not be minuted; then she said that she was sorry and she could not attend.
[51] After she declined to attend the meeting, Munton was a bit angry and said that she had to meet. She then agreed to meet him as she thought that maybe she could convince him to do the right thing. Ndlovu could not make it because he was not in town.
[52] The meeting took place at Ramaser’s house in Copesville and she, Ramaser, Munton and Shannon Rajah (Rajah) were present. Munton started with the same conversation they had the previous day that he feels that the applicant should not be the principal of the school because she did not have any finance to put into the school whereas Govender was wealthy and could contribute much more to the school than the applicant as she had many businesses and had previously made big contributions to the school. Munton told them that he can negotiate with them if they all vote for Govender to become the deputy principal of the school, then he will let the applicant get the principalship and if they do not do that, she will not become the principal.
[53] Ramaser initially said that if she had a choice, she would give it to a man but since they were down to this, she would say that Govender would be a better principal than the applicant. She was upset and tried to change their opinions and told them that they should go through the process and be fair to everybody. They refused to listen to her but Rajah agreed with her and said that he was not happy to be there and this was not what they should be doing.
[54] She did not hear anything thereafter and only saw them again at the meeting with Moodley which was the weekend before the interviews. Moodley had called them to notify them that he was appointed as the resource person and he would meet with them soon. She did not inform or raise issues about the clandestine meeting with Moodley.
[55] At the shortlisting process for the principalship, the resource person, union members, Munton, Ndlovu, Ramaser and she were present. Rajah could not make it because he had COVID.
[56] They proceeded to go through the CVs and midway through the pile, the applicant’s CV came up and they knew it was hers because she had stated in her CV that she was currently the acting principal of Orient Heights Primary.
[57] When Ramaser started reading the CV, she read it very pronounced and went very slow for them to know who she was talking about which she did not do for the other CVs. She asked Ramaser why she was reading in that tone but Harichand told her to carry on and she was doing a great job. Ramaser carried on reading the CV, emphasizing each word and was rolling her eyes. Midway through the CV, Munton told Moodley that he thinks that they should not consider the CV because everything that was said so far on the CV was all lies. Moodley told him that he could not do that because they have to take the CV and everything that was said in it and he could not say that it was not true; they have to go through the process and he could not discredit anything on the CV. They all agreed that it was wrong; they cannot do that and the process continued. She remembered discussing after reading the applicant’s CV, that it was a very good CV.
[58] They did the shortlisting and a week later they held the interviews for the three different positions. On the morning of the interview process while they all were getting seated, Munton, Ndlovu and Moodley went outside and she also joined them. She heard Munton telling Moodley and Ndlovu that he went to Midlands Hospital and saw the applicant who was in the ICU and she was doing very badly. He said that he did not think that she was going to make it so they should reconsider her post. He also said that he did not think that she should be the principal of the school because her health was not looking good and if she died soon they were in trouble. Moodley said he did not think she was that bad. After that, Munton did not say anything and thereafter they proceeded to go and hold the interviews.
[59] Moodley instructed them to prepare questions for the candidates and said that he would like them all to have an input in the questions.
[60] She had a question in mind which she put forward and Moodley said that it was not a good enough question for a principal’s post. He explained that this was a principal’s post and they should be able to answer very hard questions and her question was very simple. She tried to rephrase her question and he said that it was too easy and not good enough. In her opinion, she thought that her question was good enough but he did not feel that her question was difficult enough.
[61] Munton gave a question and Moodley said that his question was more in line but it had to be difficult. Thereafter, Munton rephrased the question and Moodley put it in his own words. Harichand and him were having a conversation about rewording the question. She told Munton that Harichand was not supposed to make up the questions with Moodley. She told Harichand that according to her knowledge, she was not supposed to do this; Harichand then threw up her hands in the air and said, ‘who are you?’ and Munton said. ‘don’t worry about her, you just continue’. She did not know what to do and just kept quiet.
[62] The other questions were set up by Moodley, Harichand, and a little bit was coming from Munton and Ndlovu. Moodley and Harichand put the questions together. She felt that they were taking away what they were supposed to do. They were not being fair to the entire process because they were told that the IC was supposed to make up the questions and nobody else.
[63] The questions were written on a piece of paper and had to be printed out so Moodley went with Harichand to the office to print out those questions. Moodley explained to the panel that he would go with Harichand as he had the pin code for the office to get to the printer. Munton agreed and they all kept quiet. In terms of her training, this was not allowed.
[64] When it was the applicant’s turn for the interview, Harichand went with Ramaser to fetch the applicant. Harichand came without the applicant and she turned to Moodley and said, ‘who does she think she is?’. Harichand told Moodley, ‘she’s sitting in the office, she’s not supposed to do this’ and she put her hand on her hips and said, ‘I am so mad’. She did not know what transpired and could not understand why Harichand was so angry.
[65] When they were scoring the applicant, Harichand stepped in and asked that they call out their scores. While they were calling out the applicant’s scores, Moodley asked how they could give a score like that for that question when she did not answer it well. Harichand agreed that she thought that their score was too high and they all should change their scores. She and Ndlovu disagreed because they felt she was deserving of the score. Munton told them that they need to change their scores. Moodley said that they could not give that score as it was a high score and he asked them to please change the scores as the scores they gave were unacceptable so they lowered their scores.
[66] She felt that it was quite unfair because a previous candidate came in and Moodley stated that this candidate gave a model answer, they would not get a better answer than this and this person did brilliantly. Harichand agreed and said that she thinks that they should change their scores to a higher score. In her opinion, she did not feel that it was a brilliant answer thus she gave a lower score to what she felt the candidate deserved. When Moodley heard the score, he asked all of them to change their score.
[67] They were told at the workshop that if they had a discrepancy and did not have the same score, they should reconsider; drop it by 1 or pick it up by 1 but these people were not supposed to intervene. At no point did she feel that she gave anybody extra marks or less marks.
[68] She spoke to Moodley after the interview and told him that she did not feel that what they did was fair because he stepped in and was making these comments and in her opinion she did not think that was right and he told her to just let it be.
Under cross-examination she testified that;
[69] At the time of the shortlisting, she had been a SGB member for a year and this was her first shortlisting and interview process.
[70] She agreed that all candidates should be treated in a similar manner and agreed that it would be unfair if the applicant was sitting alone in her own office while the others were seated somewhere in the foyer. Harichand and Ramaser went to call the applicant. She did not know the conversation they had from the office of the applicant to the venue.
[71] She confirmed that the applicant was the recommended candidate for the deputy principal post and she did not raise an objection to that.
[72] She was a scoring member of the IC for all three posts. Both union representatives attended the ratification meeting for all 3 posts.
[73] At the ratification meeting, the IC discussed the rank order of the candidates for the post. She signed EHR 11, the ratification document but she was forced to sign it by Harichand.
[74] She had disputed the entire process for all the interviews and had said that she would not sign the ratification for any of the processes as there were discrepancies in all three posts. She refused to sign and told Harichand that she would take it up with the Department and Harichand responded that even if she does not sign it, it will still go through as it will land on her desk first and will go no further. She stood up to leave and Moodley told her to sit down so she sat down and kept quiet. She agreed that Harichand was an observer and not a representative from the Department.
[75] While they were doing the ratification process, she asked Moodley if she could look at the minutes of the whole interview process before they proceeded as she wanted to see if everything that she had said or objected to during the process was minuted but he told her that she could not look at the minutes. She then stated that in that case, she will not sign the EHR 11 because she felt there were a lot of things that were not right in all three interviews. She agreed that her objection to the process was not recorded in the minutes.
[76] Ndlovu apologised to the applicant because apparently there were rumours circulating. She conceded that Ndlovu had never told the applicant that she was successful or unsuccessful.
[77] She confirmed that she had breached confidentiality when she told the applicant that the whole process was unfair.
[78] The IC’s job was to recommend the appointed candidate for the post. She agreed that the purpose of shortlisting, interviews and ratification is for the SGB to make the best decision for the school. She agreed that the person who performs best at interviews is usually the highest ranked candidate.
[79] She was present at the meeting at Ramaser’s house where there was discussion about the principal and deputy principal posts. She confirmed that Govender’s CV did not make the shortlist.
[80] Upon being questioned if Munton had any influence over the IC members during shortlisting and the scoring of the interviews, she averred that he did not say anything and just did what he was told.
[81] She agreed that the resource person was there to guide the process and she conceded that Moodley was correct when he spoke to the structure and type of questions. She conceded that the applicant was not prejudiced during the shortlisting.
[82] The process of the interview plan is done on the advice of the resource person. She confirmed that when the IC was developing questions for interviews, it was the resource person’s role to assist in guiding the structure of questions that were formed. She was not within the education sector and she did not know that Moodley was a school principal. She conceded that there was nothing wrong with Moodley saying her questions were too simple for the principalship post and with him assisting them. They did not take any of her questions which made her feel very disappointed and she felt that they did not think that she was educated enough to ask a good question.
[83] She confirmed that she was told at the training that the questions must not be printed or produced by one person alone. She conceded that it was not a problem when the resource person went to print the questions with the union observer as a witness.
[84] They all had a chance to read the questions which were exactly the same questions that were formulated. When asked if Moodley was wrong to question their score when the applicant did not answer it well, she averred that she felt that the applicant had answered it appropriately but confirmed that part of the resource person’s job was to keep the IC on track.
[85] She conceded that Harichand raised procedural and substantive issues which were in line with what was required of her. She confirmed that Harichand agreed with Moodley but did not tell her to change her scores. She looked at the chairperson, and he told them to change their scores.
[86] She confirmed that the union observer had an issue at the interview process with her in particular. She told Munton that she felt that Harichand was completely giving the question for the interview whereas she should be helping but not forming the question solely with Moodley; Harichand got very upset at her for saying that. She conceded that there was nothing wrong for Harichand to assist the process according to the procedure manual.
[87] She was unaware that the union observer was unhappy and after the process had written a letter to the IC and the SGB complaining about her behaviour.
[88] It was put to her that Harichand will testify that she was very unprofessional during the interview process and her behaviour was very unbecoming, she averred it was an incorrect statement.
[89] She agreed that Ndlovu did not mention principalship, deputy principalship post or that the applicant was or was not appointed and he did not say that the applicant did not get the post. She conceded that it was her assumption that Ndlovu had breached confidentiality.
[90] In all the posts, they were asked to change their scores for certain candidates. She conceded that in her training, she was informed that adjustment of scores and change of scores can happen.
[91] She signed the EHR because she was told it was not going to change anything. She conceded that she knew that when she signs something, it means that she was confirming that everything therein was up to standard.
Under re-examination she testified that:
[92] Munton and Ndlovu did not offer any questions, they allowed the process to be handled by Moodley; and Harichand and agreed that their questions were good.
SHAHEEM BANU EBRAHIM (“Ebrahim”)
[93] She was the educator representative in the SGB and was part of the ratification process for all three posts.
[94] She was the only person welcoming the candidates for the principalship post. She received the candidates and showed them where to be seated. When the applicant arrived for her interview she asked her to move into the office area because the other candidate was seated in the foyer.
[95] When it was the applicant’s turn to be interviewed, Harichand came with Ramaser to collect the applicant. Harichand asked her where the applicant was and she told her that she was in the office and she would call her. Harichand was a bit irate and asked what she was doing there. She was taken aback because she felt that Harichand was not polite. She informed Harichand that she had told the applicant to sit there. She could see that Harichand was irritated by the tone of her voice, her body language and she threw her hands in the air.
[96] She attended the SGB ratification process. When it came to the principal’s post, she, Naidoo and Rajah said that they wanted to look at the scores. They started looking at the scores and then one other SGB member asked if they could review and Moodley said that nothing was going to change. She was quite surprised because her understanding was that the resource person was there to guide the process and not make comments.
[97] According to her understanding, the SGB is allowed to make recommendations and when they started asking questions, they were shut down. Personally, she felt that she was being belittled as a professional; she needed clarity on certain things but was not given the opportunity.
[98] Naidoo and Rajah asked to look at the minutes but Moodley and Harichand told them that they could not, then she asked to look at it but they refused.
[99] The process continued. Munton at one stage said, ‘don’t worry about Naidoo’, as Naidoo started getting upset and stood up whereafter Moodley told her to just sit down. Naidoo stated that she was not happy with the process and was going to take it up to the department. Harichand told her that she can do that, but it had to go through her and it will not go any further because the questions they were trying to raise were not worth even listening to. She felt that Harichand was belittling them, she was shouting at them and getting angry and making her feel like she was not worthy of being there.
[100] Moodley just sat there and did not tell Harichand anything and the other CTU-ATU observer never intervened.
[101] When Naidoo said that the community knew the applicant, the children were used to her, she was acting in the position for almost a year and the school was running fine. Moodley said that that was part of the job; children are resilient, they will cry for a few minutes and that he had gone to another school and the children there got used to him; which was not what the resource person was supposed to say.
[102] Ndlovu just had his head down and Munton also just sat and never commented when she was speaking thus to her Moodley was actually chairing that session.
[103] The observer was supposed to simply observe and make notes and not to communicate anything. The resource person was supposed to guide the process and not to give his opinions. By Moodley making comments to them, she felt that he was directly involved in the process.
[104] She signed the EHR 11 because they were told that the process was going to go through and then it was put to a vote. Four hands went up so they were outnumbered.
Under cross-examination she testified that;
[105] She had not attended any training for the shortlisting, interview and ratification.
[106] She did not know why Harichand would get irritated to see the applicant in the office. She conceded that it would raise suspicions as it was a principalship post and the applicant was seated in the principal’s office while the other candidates were in the foyer.
[107] They did not prefer the applicant over the second respondent but they wanted to have a discussion as to how the scoring was done but they were not allowed to have any discussion whatsoever.
[108] She agreed that she was not trained in the promotion rules. When asked how then could she make statements that the resource person was overstepping his boundaries, she averred that because when she tried to ask questions or make a comment, he would respond to her one-on-one which she thought was wrong.
[109] When asked who was chairing the meeting, she stated that Munton was chairing the meeting. When it was put to her that she testified that Moodley was chairing but now she was saying that it was Munton, she stated that Munton was the chairperson but he never said a word; it was Moodley who was communicating with everybody.
[110] She conceded that by signing the EHR 11, she was a party to this document and in agreement with the contents of that document.
[111] At the ratification, the SGB did not make any changes or recommendations regarding the rank order of candidates.
[112] When Moodley said that there was going to be a vote, it was open to everyone in the SGB to either raise their hand or not and she conceded that the fact that 4 hands were raised and 3 were not, that that was a democratic method of getting to a conclusion.
[113] She was part of the ratification process when the applicant was appointed as Deputy Principal. Neither Naidoo nor she had raised any issue directly with the Department of Education regarding the appointment to the post in dispute.
FIRST RESPONDENT’S SUBMISSIONS
CHARLENE HARICHAND (“HARICHAND”)
The salient aspects are recorded below.
[114] She is the Deputy Chairperson in SADTU and the applicant’s representative was the SADTU Chairperson.
[115] She went to fetch the applicant from the area where the candidates were supposed to sit but the applicant was sitting in her office with her laptop open on her table and Ebrahim was with her. To her this was colluding with the SGB as the ratifications had not been done.
[116] She disputed that when she entered the interview room, she said, ‘who the hell does she think she is’; that was not the kind of language that she uses.
[117] The processes were fine but Naidoo was very unprofessional and was trying to bully them as observers. Naidoo had specific but very simple questions. Naidoo’s question for fundraising was, ‘how would you fundraise’ hence they asked her to add a little bit more flesh to the question as it was a principal’s post. She got very upset and stated that she was a housewife and they were looking down on her. Numerous times, Naidoo passed remarks and was very unprofessional thus she wrote a letter to Ndlovu and expressed her dissatisfaction with Naidoo’s behaviour. Ndlovu responded and expressed his disappointment with the manner in which Naidoo behaved; he apologised to her on behalf of the school.
[118] The second respondent’s performance at the interview was outstanding. Her answers to the questions were excellent and she was the outright candidate number 1. They could not have disputed that and everybody in the room agreed that she had answered to the best of her ability and her answers were outstanding. The applicant’s answers were fine.
[119] When they went into ratification, Ebrahim raised her hand and she said that she would like to do a supersession as she wanted to move the applicant over the second respondent. She indicated that it was not procedural to do a supersession of a female over a female. When they asked for a reason, Ebrahim said that the children liked the applicant a lot. They went into a vote and the second respondent was still the number 1 candidate.
[120] Moodley followed the processes and the procedure. In terms of the role of the observer, she acted accordingly. CTU-ATU did not raise any complaint against her but they had raised a complaint against Naidoo about her behaviour.
[121] In terms of the shortlisting, interview and ratification processes everything was above board until the one member raised that they wanted to hold a supersession.
[122] She felt that there was no need for them to go into voting to do a supersession as they all had agreed to sign the documents; however, the process was all fair and good.
Under cross-examination by the second respondent, she testified that:
[123] She had never been in a process where she felt so belittled and demeaned by a member. Naidoo was very arrogant, aggressive and rude to them all of the time. She felt that Naidoo had an agenda because she was trying to put forward her questions all the time.
[124] She did not find Moodley to be out of line at any point during the interview process. At the end of the process, they all gave input with regard to how the process unfolded and they did say that Moodley had handled the process very well and had led the process professionally and that everything was above board.
[125] In terms of the performance of the applicant and the second respondent, the second respondent’s performance at the interview was outstanding, her answers were excellent and she was way above the applicant.
Under cross-examination by the applicant, she testified that;
[126] According to her the applicant was a candidate and should have been with the other candidates but was with Ebrahim who went for the ratification. She was unaware that Ebrahim was there to receive the candidates.
[127] They did not change the question but she just raised that they should add some wording to it. She conceded that she tried to influence that question and that the question raised by Naidoo was not substantively and procedurally unfair. She conceded that Moodley was influencing the process when he had agreed with her and said that the question was a bit basic.
[128] She conceded that the CTU-ATU observer ought to have intervened and stopped her from interfering in the process when the questions were being asked and she had raised her objection to Naidoo’s question. She agreed that Moodley was considered to be directly involved in the process when he had helped to draft the question.
[129] During ratification, Ebrahim raised the issue of supersession and Naidoo supported her. She disputed that she told them if any grievance goes forward, it would have to go through her desk first but what she had said was that they were trying to do a supersession and according to the document they could not supersede a female over a female.
[130] When questioned where did it say that they could not supersede and it was put to her that she had intervened and interfered directly, she averred that they still went ahead with the process and voted but conceded that she was directly involved in the process and should have allowed the process to unfold and then raised objections through a grievance procedure. She conceded that Moodley also influenced the process by allowing her to speak outside the parameters of HRM 20 of 23.
Under re-examination she testified that;
[131] If the SGB wanted to do a supersession, it would be allowed if they were all in agreement. The SGB would have to write a motivation and submit it to the Department however they were not in agreement and they voted against it.
SECOND RESPONDENT’S SUBMISSIONS
PRISHIELA RAMCHANDRE (“RAMCHANDRE”)
The salient aspects are recorded below.
[132] She knew all the candidates and did not have any vested interest.
[133] At no point did Harichand or any other member of the panel speak out about any applicant by saying; ‘who the hell does she think she is?’
[134] The IC was guided into the process by Moodley and he outlined the rules, regulations, procedure and expectations to them before the process began.
[135] The IC sat together debating the questions. Naidoo had a question in mind but it was not on a level of principalship which question had to do with fundraising. She did not say anything but Harichand raised the issue that this question was too simple for the position of principal.
[136] She found Munton to be a civil person and during the process he consulted with the other two on what he was doing. From the conversation between Munton and Ndlovu, she could see that there was an understanding between them but Naidoo was a bit arrogant, rude and displayed unprofessionalism and basically just wanted it her way or no way.
[137] After each candidate was interviewed, they had to score and she felt that Naidoo was sort of imbalanced because she did not know exactly what substance they were looking for.
[138] If there was any discrepancy in the scoring then there was a debate hence, they basically came to consensus in the scoring.
[139] The scoring of the second respondent was apt to the technique of how she answered. After the applicant’s interview there was a bit of deliberation because the Munton and Ndlovu were on equal end while Naidoo was not very happy and because of her unhappiness, she displayed unprofessionalism. When they spoke about it, they reached consensus and Naidoo then accepted the scoring.
[140] After the process, she just made mention that she would like to bring to the attention of the IC chairperson that she was unhappy with the way she was treated.
[141] She disagreed that she and Harichand had an undue influence on the process. She merely observed the entire process and as an observer this process was fair and transparent.
Under cross-examination by the first respondent, she testified that;
[142] The applicant should have been treated like every other candidate and should have waited in the foyer.
[143] The question on fundraising was basically modified; it was just adding structure because it was a high-profile post. She did not think that there was anything wrong in advising the IC about structuring and modifying the questions.
[144] She did not think the union observers had undue influence on the process.
Under cross-examination by the applicant, she testified that;
[145] Naidoo did not speak to her or interfere with her. Naidoo was allowed to speak her mind but she was derogatory and rude because she was throwing remarks at whoever was there.
[146] She did not interfere at any time when questions were being redrafted by the IC, observers and the resource person.
[147] The other IC members debated the questions amongst themselves. They worked according to the document that was given to them.
[148] She disputed that she tried to influence the process. She did not interject because she felt that Harichand was correct in what she was saying.
ANALYSIS OF EVIDENCE AND ARGUMENT
I have considered all the evidence and arguments of the parties and what follows is a brief summary relevant to the dispute at hand and does not reflect all the evidence and arguments considered in deciding this matter.
[149] In terms of the Labour Relations Act, General provisions for arbitration proceedings, section 138(1) reads as follows:
The commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities.
[150] In terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995, Unfair Labour Practice means any unfair act or omission that arises between an employer and an employee involving-
(a) unfair conduct by the employer relating to the promotion, demotion, probation [excluding disputes about dismissal for a reason relating to probation] or training of an employee or relating to the provision of benefits to an employee.
[151] The Applicant claims that the First Respondent committed an unfair labour practice relating to the post of Principalship under Post No. 1148: HRM Circular No. 20 of 2023.
[152] The applicant contends that there was a breach of confidentiality, undue influence by the resource person and the observers, unprofessional conduct by the IC chairperson and a clandestine meeting by certain IC members prior to the commencement of the process wherein it was decided that the applicant would not be appointed as principal and; that the observers breached clause 15 of HRM 20 of 2023.
[153] The applicant seeks the relief of the setting aside of the appointment of the second respondent and for the interview process to be conducted by a new and independent panel excluding the previous role players; alternatively protected promotion effective from 1 May 2024.
[154] I have noted that the applicant and respondents failed to cross-examine certain evidence and put their versions to witnesses when they were on the stand.
[155] In ABSA Brokers (Pty) Ltd v Moshoana NO & others (2005) 10 BLLR 939 (LAC) the Labour Appeal Court noted that “A failure to cross-examine may, in general, imply an acceptance of the witness’s testimony.” By failing to cross-examine the witness on this specific aspect implies that the Applicant cannot rely on this point.
[156] Clause F of Collective Agreement Number 3 of 2016 ELRC Guidelines: Promotion Arbitrations provides as follows:

An employee who alleges that he is a victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities. The employee must prove not only the existence of the labour practice, but also that it is unfair.
An employee who refers a promotion dispute must do more than just demonstrate that he has the minimum advertised qualifications and experience. He must allege and prove that the decision not to appoint him was unfair. Mere unhappiness or a perception of unfairness does not establish unfair conduct. What is fair depends upon the circumstances of a particular case and essentially involves a value judgment.
Where an applicant in a promotion dispute, is unable to prove that he was the best of all the candidates who applied for the job, then in order for the employee to prove an unfair labour practice relating to promotion, he or she should generally, at least demonstrate that there was conduct that denied him or her a fair opportunity to compete for the post, or conduct that was arbitrary or motivated by an unacceptable reason, or that the successful candidate was dishonest and misled the interview panel or employer.
[157] In Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) the court held at par [79] “A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.”
[158] It is common cause that the applicant was shortlisted and interviewed and that she was ranked number 1 in the shortlisting process.
[159] The applicant testified about the corridor rumours pertaining to a new principal being appointed at the school however there was no evidence of the source of these rumours and who indeed was the appointed new principal. It was further her contention that when Ndlovu apologised to her regarding the rumours, he had breached confidentiality. There was no evidence that Ndlovu disclosed to her anything about who were the successful candidates to the posts. The applicant conceded that Ndlovu gave no inclination that she was not the recommended candidate. There is no control over rumours and rumours do not constitute unfairness. Save for the applicant’s assumptions, she provided no evidence that demonstrates and supports her claim of breach of confidentiality.
[160] The applicant testified that Harichand was agitated, had an irritated look on her face and alleged that Harichand had made a comment; ‘who the hell does she think she is’, however she failed to prove how this alleged comment made the interview process flawed, prejudicial or unfair to her. Harichand denied making the comment and Ramchandre confirmed that no such comment was made during the interview process. The applicant conceded that apart from Harichand’s irritated looks, there were no interruptions during the interview.
[161] The applicant argued that Moodley’s comment about a brilliant answer by the second respondent had influenced the scoring of the other members. This version was not put to the two respondents’ witnesses who were actually present during the interview process. There was no evidence of how Moodley’s comments had actually affected the scoring.
[162] It was Naidoo’s evidence that Moodley instructed them to prepare questions for the candidates and told them that he would like them all to have an input in the questions. Naidoo testified that when she put forward a question, Moodley explained to her that it was a very simple question for the post of a principal and asked her to rephrase it. Both Harichand and Ramchandre testified that Naidoo’s question was too simple for a principal post.
[163] I have noted that Naidoo contradicted herself several times when she testified about Munton, Ndlovu and herself providing questions.
[164] It appeared to be Naidoo’s apprehension that Moodley was taking away the process from them however it is apparent from her own evidence that Munton and Ndlovu also contributed in formatting the questions, were asked to rephrase it and their questions were reworded.
[165] Both Harichand and Ramchandre were consistent when they testified that Naidoo’s questions were too simple and that Naidoo was rude, arrogant and unprofessional which remained unchallenged.
[166] There is no unreasonableness in rewording or rephrasing a question for a level 4 post and more so all the candidates were asked the same questions. Had the interviewees been asked different questions then that would have been unfair. Hence, in as much as Moodley assisted the IC with the process, there is no evidence of any unfairness committed against any of the candidates.
[167] The applicant confirmed that during the interview process, the questions were asked in a fair manner and she was given adequate time to answer the questions. The applicant failed to present tangible evidence and details in terms of the scoring of the questions; exactly which question/s and which score/s was unfair and challenged.
[168] Save for the applicant alleging that there were ‘negotiations’ for Govender to be appointed to the post of principalship, she failed to provide tangible evidence to prove the unfairness or biasness against her. It is common cause that Govender was not shortlisted for the principalship post.
[169] Naidoo testified about the clandestine meeting and that she had voiced her dissatisfaction. However, when Naidoo had met Moodley a week before the interviews, she had an opportunity to inform him about the clandestine meeting and of Munton’s alleged underhandedness but she failed to do so.
[170] Irrespective of Naidoo’s evidence pertaining to the particular way in which Ramaser read the applicant’s CV and her evidence of Munton alleging that the applicant’s CV contained lies, the applicant was still scored the highest. It was Naidoo’s own evidence that Moodley refused to allow Munton to discredit the applicant’s CV and derail the shortlisting process.
[171] The applicant failed to call any witness to collaborate Naidoo’s testimony regarding the clandestine meeting as well as the interview process.
[172] In Tshishonga v Minister of Justice and Constitutional Development and Another [2007] 4 BLLR 327 (LC), the court held that; “The failure of a party to call a witness is excusable in certain circumstances, such as when the opposition fails to make out a prima facie case. But an adverse inference must be drawn if a party fails to testify or place evidence of a witness who is available and able to elucidate the facts as this failure leads naturally to the inference that he fears that such evidence will expose facts unfavourable to him or even damage his case. That inference is strengthened if the witnesses have a public duty to testify.”
[173] The applicant failed to show what prejudice she suffered based on Naidoo telling her that Munton had informed the IC that she was not going to make the interviews.
[174] It is common cause that scoring members were Munton, Ndlovu and Naidoo. There was no evidence to suggest that Munton or Ndlovu were involved in underhandedness to undermine the interview scoring. Naidoo confirmed that Munton did not influence the IC members during the shortlisting and the scoring of the interviews.
[175] It was the applicant’s contention that she was prejudiced before the interview could take place; however, there is nothing sustainable to show that this was the case.
[176] The applicant never disputed or challenged the evidence that the second respondent was the best candidate for the post in dispute. It is apparent that the applicant was shortlisted and interviewed for two posts and it was common cause that the very same IC appointed her to the post of Deputy Principal which position she was not disputing.
[177] In Ndlovu v CCMA & others [2000] 12 BLLR 1462 (LC), the Court held that:
“It can never suffice in relation to any such question for the complainant to say that he or she is qualified by experience, ability and technical qualifications such as university degrees and the like, for the post. That is merely the first hurdle. Obviously a person who is not so qualified cannot complain if they are not appointed. The next hurdle is of equal if not greater importance. It is to show that the decision to appoint someone else to the post in preference to the complainant was unfair. That will almost invariably involve comparing qualities of the two candidates. Provided the decision by the employer to appoint one in preference to the other is rational it seems to me that no question of unfairness can arise”.
[178] It is common cause that both Naidoo and Ebrahim signed the EHR 10 and 11 and had they been dissatisfied they could have easily refused to sign the documents and reported any irregular or unprocedural conduct to the Department.
[179] It is common cause that there was an issue at the ratification process concerning supersession which then resulted in democratic voting process taking place and at the conclusion the second respondent remained the preferred candidate.
[180] In as much as Harichand conceded that she and Moodley had interfered and influenced the process and Naidoo conceded that Moodley and Harichand were assisting the process, nothing much turns on this.
[181] In Observatory Girls Primary School & others v Head of Department: Department of Education, Province of Gauteng, Case no 02/15349 [2006] JOL 17802 (W) it was held that strict compliance with relevant guidelines and collective agreements is not necessary, substantial compliance is sufficient.
[182] In Aries v CCMA & others (2006) 27 ILJ 2324 (LC) the Court held at [16] that “there are limited grounds on which an arbitrator, or a court, may interfere with a discretion which had been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision-making powers inherent in the exercising of a discretion by a party, including the exercise of the discretion, or managerial prerogative, of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. The court held further that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner”.
[183] In Noonan v Safety & Security Sectoral Bargaining Council & others (2012) 33 ILJ 2597 (LAC), the court held at par 13(i): “It is insufficient for a complainant to say that he or she is qualified by experience, ability and technical qualifications; he or she must also show that the decision to appoint someone else in preference to him or her was unfair. If the employer’s decision to appoint another candidate is rational, no question of fairness can arise.” Further, it was held that as long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.
[184] There was no evidence presented to indicate that the decision to appoint the second respondent to the post in dispute in preference to the applicant was unfair. There is no evidence to suggest that the second respondent had an undue influence on the panel or was unduly favoured by the panel. Further, there is no evidence to show there was any manipulation in the appointment of the successful candidate to the post in dispute.
[185] In Ncane v Lyster NO and Others [2017] 4 BLLR 350 (LAC), the court held at par [25] “When it comes to evaluating the suitability of a candidate for promotion, good labour relations expect an employer to act fairly but it also acknowledges that this is not a mechanical process and that there is a justifiable element of subjectivity or discretion involved. It is for this reason that the discretion of an arbitrator to interfere with an employer’s substantive decision to promote a certain person is limited and an arbitrator may only interfere where the decision is irrational, grossly unreasonable or mala fides.”
[186] The applicant has failed to prove that but for the allegations she has made, she would have been the appointed candidate. The applicant has failed to prove that a breach of procedure has unfairly prejudiced her.
[187] The applicant bears the onus to establish that an unfair labour practice was committed against her and having regard for the aforementioned ELRC Collective Agreement 3 of 2016, the judgments and the totality of the evidence, I accordingly find that the applicant has failed to discharge the burden of proof on a balance of probabilities that the first respondent had acted irrationally or subjected her to unfair labour practice.
AWARD
[188] The applicant’s dispute is dismissed.
[189] There is no order as to costs.