IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT PINETOWN

ARBITRATION AWARD

Case Number: ELRC463-25/26 KZN
Commissioner: Protas Cele
Date of Award: 10 April 2026

In the ARBITRATION between

Moodley, Govindaraj and Others

(Union / Applicant)

And

Department of Education KwaZulu Natal

(Respondent)

Details of hearing and representation

1. The matter was set down for arbitration at Durban Teachers Centre on 1 September 2025, 17-18 November 2025 at the Department of Education, Ithala Building in Pinetown, 26 January 2026 at Pinetown District office and 11 March 2026 at Durban Teachers Centre.
2. The Applicants, Govindaraj Moodley, Sanam Sivanarain and Shuneel Mathura were represented by Farzana Ebrahim, an official from SADTU. Itumeleng Makhooe, Assistant Director, appeared on behalf of the 1st Respondent, Department of Education KwaZulu-Natal and Siyanda Mthimkhulu, an official from SADTU, represented the 2nd Respondent, Vanessa Premandham.
3. Farzana produced a bundle of documents which was admitted, marked bundle A(A1 – 30) and proceeded to lead the evidence of 5 witnesses. Itumeleng presented the 1st Respondent’s bundle of documents which was also admitted, marked bundle B(B1-57) and led the evidence of 1 witness. The proceedings were conducted in English and digitally recorded.

Issue(s) to be decided

4. I must decide whether the 1st Respondent applied the procedure manual correctly and whether the sifting out of the applications in respect of the Applicants, constituted an unfair labour practice.

Background to the dispute

5. The following facts were either agreed or not disputed:

a) That the Applicants are employed by the 1st Respondent in terms of The Employment Educators Act at Dianthus Primary School at Mafukuzela Gandhi Circuit in Pinetown District;

b) That they applied for the post of principalship advertised in HRM Circular no. 20 of 2024 as post no. 739 at Dianthus Primary School;

c) That the 1st Applicant was a Deputy Principal at the school and the 2nd and 3rd Applicants were Departmental Heads;

d) That although they met the minimum requirements of the post their applications were sifted out;

e) That the passport numbers were missing in the applications in respect of all 3 Applicants and that the Z83 form had been edited in relation to the 1st Applicant;

f) That the 2nd Respondent was finally appointed to the post after the interview process was completed;

g) That the HRM Circular no. 8 of 2025 was issued following the outcry from organised labour about the mass exclusion of the applications from the process;

h) That the said HRM Circular had a cut-off date for applicability which was set at 20 March 2025 and that the selection process had already been completed in respect of the post at Dianthus Primary School;

Survey of evidence and argument.

6. I am required in terms of section 138(7)(a) of the Labour Relations Act to issue an arbitration award with brief reasons. What therefore follows hereunder is not an exhaustive survey of all the evidence led and arguments presented, but a brief summary of the salient issues relevant to my findings only.

Applicants’ evidence

7. Veronica Harilall was the secretary of the School Governing Body. She testified that the number of applications that were brought in for the post was very low. They received about 33 CV’s when they expected over 100 CV’s to be submitted considering that Dianthus is a school of choice.
8. The CV’s were brought to the school by the Circuit Manager, Mr. SA Chetty, and when she asked him why the CV’s were so few, he told her that they were the only ones that were given to him. The SGB members were not all present when he handed the CV’s to the IC.
9. Mr. Chetty handed in the CV’s without a schedule of the applications that were rejected including those that were accepted. She explained that she also spoke to Mr. Nhleko, Chairman of both the IC and the SGB about her concern regarding the number of CV’s that were brought in.
10. Mr. Nhleko wanted to stop the process but Mr Chetty told them that if they stop the process the department would take over. The process continued but they felt that they were forced to continue with the process given the concerns that were raised.
11. She stated that there were not names written on the CV’s and Mr. Chetty only read out the numbers which were handwritten by him on the CV’s when he was supposed to read out the names on the CV’s as well. At the end of the interview process Mr. Nhleko asked for a schedule but it was not provided.
12. The interview process did not go smoothly and she realized that there could have been interference from the beginning. During the process she left the room to go to the bathroom and Mr. A. Reddy, SADTU Rep, also left the room with her. When she left the bathroom, she went to Mr. Moodley’s office, 1st Applicant, who was then Acting Principal at the school, and found Mr. Reddy at the office.
13. She overheard Mr. Reddy asking Mr. Moodley if it was ok to change the scores. She explained that before she left the room with Mr. Reddy, the candidates were already ranked and scored as follows:

a) Mrs. M. Naidoo – 27.1
b) Mrs. L. Kesaban – 26.1
c) Mrs. V. Premandhan – 25.8
d) Mrs. Chunder – 24.2
e) Mrs. S. Singh – 23.5

14. Mr. Reddy then asked Mr. Moodley if they could move Mrs. V. Premandham from no. 3 to no. 2 and Mr. Moodley said that “its better the devil he knows”. When they went back to the room Mr. Reddy told the IC that Mrs. M. Naidoo, no. 1 was going to be promoted to the post of principalship at Tongaat Secondary School.
15. He further said that Mrs. V. Premandham, no. 3, should be moved to no. 2 because it would be better to have a teacher at Dianthus who is from Verulam rather than from Phoenix. The IC was not happy but Mr. Chetty agreed with Mr. Reddy, and Mrs. V Premandham was eventually appointed after the scores were changed. None of the candidates were recommended by the SGB and they completed the EH11 form because Mr. Chetty said that it was procedural.
16. During cross-examination she confirmed that she had previously not been involved in the selection process. She conceded that the expectation for the names on the CV’s to be read out was misguided or misdirected because the names are never read out except the numbers.
17. She admitted that she was not a scorer and that the procedure manual does not state that a schedule of the sifted out candidates should be provided (A7.4). She also did not dispute that the Applicants were not shortlisted or interviewed and that they were therefore not part of the process.
18. She confirmed that they all signed the EH11 form and that Mr. Reddy was not a scorer. She could not say what the scores were after they were changed. She did not dispute that they all signed the ratification form and that the minutes do not reflect that they were forced.
19. Govindaraj Moodley is the 1st Applicant. He testified that he is currently a Deputy Principal at Dianthus Primary School and that during the selection process he was an Acting Principal at the school. He heard from Mr. L. Gounden, a SADTU representative, that his CV had been sifted out.
20. He found it problematic that even the 2nd and 3rd Applicants were also sifted out, whereupon they decided to lodge grievances individually. He stated that his CV was validated by Mr. SA Chetty and that the 2nd and 3rd Applicants’ CV’s were validated by him as Acting Principal.
21. He testified that because the procedure manual did not explain how to fill in the Z83 form he discovered and used circular no. 19 of 2022 which gives direction on how to fill in the form.
22. According to the circular, South African applicants need not provide passport numbers and that it is acceptable for an applicant to indicate not applicable or leave blank to a question (A19 par 2.1.2.1 and 2.1.2.2. His grievance was however dismissed on the basis that he did not provide his passport number and that he edited the Z83 form.
23. He stated that the introduction of HRM Circular no. 8 of 2025 was unfair. Although the circular addressed the concerns they had raised, they had already been sifted out and the process was not redone at Dianthus Primary School because the interviews had already been completed.
24. At Verulam Primary School the process was redone from sifting after the circular was issued. When the process was taking place in the library at Dianthus Primary School Mr. Reddy did come to his office and asked him if he would have a problem if Mrs. Premandhan was appointed as the Principal of the school.
25. He told Mr. Reddy that “better the devil he knows than the devil he did not know”. Mr. Reddy did not tell him about the rank order. He knew Mr. Reddy as an educator in the branch and he (Moodley) also attended his wedding. He stated that his career was about improving education in the country. He is against nepotism and corruption.
26. During cross-examination he admitted that his application was sifted out because he did not provide his passport number and that his Z83 form had been edited. He conceded that he did not participate in the interview process. He confirmed that the part which disappeared after he edited the Z83 form was about “current year of study”.
27. He did not dispute that HRM Circular No. 8 of 2025 was issued on 21 February 2025 after the processes at Dianthus Primary School had been completed. He admitted that the circular applied to the school where the processes were not yet completed.
28. When it was put to him that HRM Circular No. 8, came about as a result of an agreement between the Unions and the department, he stated that the Unions let their members down. He stated that he understands validating to mean “to ratify” and conceded that it does not mean to investigate.
29. Thokozani Nhleko was the Chairperson of the IC. He testified that Mr. SA Chetty was the resource person. He was shocked at the number of candidates whose CV’s had been submitted because he expected more candidates than the number they were given.
30. During the process the procedure manual was not complied with. Mr. Chetty did not hand in the CV’s to the entire SGB together with the list of candidates. The 2nd Respondent’s CV appeared 3 times. They were not happy with the scoring but Mr. Chetty told them that if they stop the process, the department would take over.
31. They also wrote on the EH11 form that they did not recommend any candidate and motivated for the process to be restarted. Mr. Reddy asked them during the process to move the 2nd Respondent from no. 3 to no. 2 so that when Mrs. Naidoo (Maggie) who was no. 1, got the post at Tongaat High School, the 2nd Respondent would get the post at Dianthus Primary School.
32. After they moved the 2nd Respondent to No. 2, Maggie who was acting principal at Tongaat High School, was eventually appointed as principal at Tongaat High School and the 2nd Respondent was appointed as principal at Dianthus Primary School. He explained that after Maggie was appointed she complained to him and said that her first choice was Dianthus Primary School but she was told that her talent would be wasted there.
33. During cross-examination he stated that Mr. Chetty sifted out 2 of the CV’s which appeared 3 times. But he did not comment when he was asked if there was anything wrong with that. He stated that the IC was not happy with the rank order during the interview stage. Candidates were ranked within the 20’s but normally there would be someone above 30.
34. He blamed candidates who were interviewed for the scores and stated that they should not have been appointed. He admitted that there is no policy which stipulates that candidates who score within the 20’s are not appointable. He did not comment when it was put to him that according to the 1st Applicant, the 2nd Respondent was a preferred candidate.
35. Sanam Sivanharain is the 2nd Applicant and currently she is the intermediate and senior phase departmental head at Dianthus Primary School. She testified that her CV was also sifted out. When she heard that shortlisting had already taken place she asked the 1st Applicant to find out what happened to her CV.
36. Moodley spoke to Mr. L Gounden who was a SADTU representative during the process. Moodley told her that it was said that her passport number was missing on the Z83 form, whereupon she lodged a grievance. At the grievance hearing on 14 February 2025 Mr. Lushozi said that her form was incomplete because she did not provide a passport number.
37. She explained that HRM Circular no. 19 of 2022 and the form itself state that if you are a South African Citizen you need not provide your passport number. She did not receive the outcome of the hearing. Her CV was validated by the 1st Applicant, who was then acting principal at the school.
38. She testified that she was extremely disappointed by the Department’s inefficiency which unfairly took her out of the race, she chose Dianthus Primary School because that is where her heart and soul is and she knows the community but she was denied the opportunity to compete for the past.
39. During cross-examination she admitted that HRM Circular no. 8 of 2025 was issued following an agreement between the unions including her own union, with the department. She conceded that the circular applied to posts that were still at the sifting and shortlisting stages by 21 February 2025 and that the sifting and shortlisting dates at Dianthus Primary School were long before the circular was issued.
40. Shuneel Mathura is the 3rd Applicant and a Departmental Head at Dianthus Primary School. He testified that his CV was also sifted out. He heard from the 1st Applicant and thereafter he lodged a grievance. His CV disappeared and he was not called to a grievance hearing.
41. He was also told that he left out the passport number when he completed his Z83 form. He stated that he had submitted a Z83 form in respect of posts at other schools filled in exactly the same way without a problem
42. He testified that HRM Circular no. 8 proves that the department had messed up and that it issued the circular to exonerate itself. The circular was unlawful.
43. During cross-examination when it was put to him that HRM Circular no. 8 was produced by the Unions, he stated that it could be one person and that his own union also let him down. There were too many flaws and if the process was done correctly, they would not be here.

Respondents’ evidence

44. Siyabonga Simon Sithembiso Lushozi is the chief education specialist (CES) since October 2013. He testified that his role in the selection process is mainly to receive applications that are designated to the circuit Manager Centre which in this case is Mafukuzela Gandhi.
45. He would then conduct the sifting process, develop a schedule of sifted in and sifted out applications and present it to organized labour, allow organized labour representatives access to the applications and then the process would go to the school for the interview process.
46. He testified that the 1st Applicant was sifted out because he edited his Z83 form and his application was incomplete. When the form was edited the space/column for current study was removed and the Applicant also did not fill in his passport number.
47. He explained that the Z83 form is a government document and editing it erodes its authenticity. The 2nd Applicant also did not include her passport number and her application was regarded as incomplete. The 3rd Applicant did not provide his passport number and did not indicate his current study.
48. He stated that the purpose of the Z83 form is to assist a government department in selecting a person for an advertised post. The candidate need to fill in all sections of the form completely, accurately and legibly (B47).
49. HRM Circular no. 8 of 2025 came as a result of the outcry from organised labour about the mass exclusion of applications during the selection process. The purpose was to bring some relief to minimise the exclusions by relaxing stringent requirements.
50. The circular had a cut off date for application which was set at 20 Marh 2025 (B35 par. 4.8 and 4.9). Dianthus Primary School was excluded because all the processes at the School had already been completed.
51. During cross-examination he stated that validation is done by the principal of the school as set out in the procedure manual (A5.7.1). He conducted the sifting with a team, in line with the procedure manual (A7.2.1). It was not his duty to assist applicants with the Z83 form.

Closing Arguments

52. The parties filed their heads of argument with annexures which are too exhaustive to be set out in this arbitration award.
53. However, their submissions including the annexures have been considered as constituting part of the written record of the arbitration proceedings.

Analysis of evidence and argument

54. In terms of section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended (The ACT), 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, and in the context of the present case, the promotion of an employee. The onus rests with the employee to show the existence of the conduct or decision complained of.

55. It is common cause that the Applicants were sifted out during the selection process due to reasons associated with the Z83 form itself as well as passport numbers.
56. It is also common cause that following what has been couched as an outcry from organised labour about the mass exclusion of applications from the process, HRM Circular No. 8 of 2025 was issued.
57. It is further common cause that the issuing of the circular was not a unilateral act but an outcome of deliberations between the department and trade unions acting on behalf of their members.
58. It is also common cause that the purpose of the circular was to bring relief in order to minimise the exclusion of the applications by relaxing stringent requirements.
59. It is further common cause that the circular had a cut-off date for application and that Dianthus Primary School did not fall in the category of the schools in respect of which the selection process was halted because the shortlisting and interview processes had already been completed in respect of the post at the school.
60. In Fakude and Others v Kwikot (Pty) Ltd [2013] 34 ILJ 2014 (LC), it was held that trade unions have the power and authority to make decisions to settle a dispute in the interest of its members.
61. In particular, to settle in the interest of the majority, although at the time, to the detriment of the minority of its members. The decision taken cannot be vitiated by the fact that the decision was taken without proper regard for the interest of the minority of members.
62. Members affected by a decision taken by a trade union are bound by such a decision and are unable as a matter of principle to withdraw from such an agreement.
63. In the present case trade unions including the Applicants’ own trade union, were part of the deliberations and ultimately parties to the agreement which resulted or culminated in HRM Circular No. 8 of 2025.
64. In the circumstances it is my finding on a balance of probabilities that the ELRC has no jurisdiction because the matters relating to the conduct of decision complained of, were dealt with and resolved between the trade unions, acting on behalf of their members, and the department.
65. I therefore make the following award. Award
66. The ELRC has no jurisdiction.
67. The application is dismissed.
68. I make no order as to costs.

P Cele: ELRC Commissioner