---
title: "15 October 2026 – ELRC349-25/26 KZN"
description: "IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT PINETOWN ARBITRATION AWARD Case Number: ELRC349-25/26 KZN Commissioner: T.P. Cele Date of Award: 15 October 2026 In the ARBITRATION between Pinkie Goodness Buyisile Mchunu (Union / Applicant) And Department of Education KwaZulu…"
url: "https://elrc.org.za/docs/15-october-2026-elrc349-25-26-kzn/"
updated: "2026-10-15"
category: AWARDS
---

# 15 October 2026 – ELRC349-25/26 KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT PINETOWN

ARBITRATION AWARD

Case Number: ELRC349-25/26 KZN
Commissioner: T.P. Cele
Date of Award: 15 October 2026

In the ARBITRATION between

Pinkie Goodness Buyisile Mchunu

(Union / Applicant)

And

Department of Education KwaZulu Natal 1st Respondent
Siyanda Msomi 2nd Respondent

(Respondent)

Details of hearing and representation

1. The matter was set down for arbitration at the Department of Education, Pinetown District Office, on 4-5 June 2026, 24 July 2026 and 25 August 2026.
2. The Applicant appeared in person and was represented by Mr. Dumisani Dube, an attorney from Dube Attorneys Inc. Mr. Itumeleng Makhooe, Assistant Director, appeared on behalf of the 1st Respondent.
3. The 2nd Respondent also appeared in person and was represented by Mr. Siyanda Mthimkhulu, an official from NATU. Mr. Dube presented documents which were marked Exhibit A and E and led the evidence of one witness.
4. Mr. Makhooe Itumeleng produced bundles of documents which were marked Exhibit B, C and D respectively and also led the evidence of one witness. The proceedings were conducted in English and isiZulu and digitally recorded. The interpreter was Linda Mandlakazi.

Issue(s) to be decided

1. I am required to decide whether or not the failure by the 1st Respondent to shortlist the Applicant for Post no. 605, constituted an unfair labour practice.

Background to the dispute

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

a) That the promotional post of principal at Mzomusha Primary School, was advertised in HRM20 of 2024 under post no. 605;

b) That the Applicant was then and is currently still a deputy principal at the school;

c) That she applied for the post, but she was not shortlisted;

d) That she met the minimum requirements for the post; and

e) That the 2nd Respondent was shortlisted and eventually appointed to the post as principal of the school.

Survey of evidence and arguments
7. I am required in terms of section 138 (7)(a) of the Labour Relations Act, to issue an arbitration award with brief reasons.

1. Therefore, what 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

1. The Applicant testified on her own behalf as her sole witness. She stated that she is currently employed by the 1st Respondent as a deputy principal at Mzomusha Primary School, a position she has occupied since 2015.
2. In 2024 she applied for a vacant post of principal at the school which was advertised in HRM20 of 2024 as post no. 605. She submitted her CV together with per qualifications and the schools where she previously taught.
3. She testified that her qualifications include matric which she obtained in 1984 from Dr. John Langalibalele Dube High School, a Primary Teachers Diploma which she obtained in 1989 from Umbumbulu College and a Bachelor of Fine Arts degree which she obtained in 1997 from the University of South Africa.
4. In 2011 she studied further and obtained a qualification in Education Management from Rand Afrikaans University and in 2018 she obtained honours in policy, Leadership and Management from UKZN, Edgewood Campus. (Exhibit B at page 57 par E).
5. She taught as a post level 1 educator at Moshane Primary School from 1989 until 1992 and at Deda Primary School from 1993 until 2009 before she was promoted to a deputy principal at Phelelani Primary School in the same year. In 2015 she continued as deputy principal at Mzomusha Primary School to date.
6. In her application for the post, she included and listed her teaching experience, leadership and related experience, organisational ability and experience, professional development/educational experience, and community related leadership experience (Exhibit B page 59-60 par 1.16 – 1.18).
7. She was not shortlisted in spite of her qualifications, experience and the post that she was, and she is still occupying as deputy principal. She lodged a grievance after which the process was redone but she was still not shortlisted during the 2nd process.
8. She testified that she has 35 years of experience, she is a deputy principal, her REQV is 16 but the candidate whose CV was marked as no. 37 has 33 years of experience, is Post level 3 with REQV 14. (Exhibit C page 8-10)
9. The candidate whose CV was marked as no. 25 has 24 years of experience, is post level 2 (HOD) with REQV 14, with no information regarding leadership and organisational ability and experience in the application. (Exhibit C page 13-16)
10. In respect of a CV which appears on page 17 of Exhibit C, the candidate has 30 years of experience, is a deputy principal at another school with REQV15.
11. With regards to a CV which is on page 22 – 26 of Exhibit C, the candidate has 29 years of experience, is a deputy principal with REQV14.
12. The 2nd Respondent has 17 years of experience, has matric, a diploma in Fine Arts, National Professional Diploma in Education and advanced certificate in Education Tech from the University of KwaZulu-Natal, with REQV14.
13. She stated that the outcome of her 2nd grievance following her non-shortlisting once again during the 2nd process, was that there was no evidence of unfair labour practice and the grievance was dismissed.
14. The grievance committee found that the IC shortlisted only the principals and deputy principals and that she was an internal deputy principal who ranked no. 7 in terms of the scoring (Exhibit A par 3.2). This finding does not reflect the true state of affairs.
15. She testified that with her REQV ranking of 16, her qualifications compared to the five candidates who were shortlisted, her longest teaching experience and the fact that she had been a deputy principal in the school for nine years at the time, she should at least have been shortlisted.
16. She asked for the process to be redone and to be conducted by a panel/committee constituted by the Department, without any involvement of the members of the SGB of Mzomusha Primary School.
17. During cross-examination she did not dispute that SADTU was present during the selection process and that no candidate did not meet the minimum requirements in terms of the number of years of service as an educator.
18. When it was put to her that the issue is about the criteria rather than a comparative study of the CV’s, she stated that the criteria must go hand in hand with the law and that the skills must be considered. She disputed that the principal is responsible for the implementation of the staff provisioning of the school and stated that it is the School Management Teams (SMT).
19. She disputed that the criteria informed that she should not make the threshold in terms of school management, participation in implementation of policies, participation in district, Reginal, Provincial, National and International organization, and participation within the community. (Exhibit B page 5).
20. She stated that as a deputy principal she has nine years of experience in school management. Prior to that she was a class teacher, and as a class teacher she was a manager. She has also planned and organised many projects in the school including the Olympiads.
21. She asserted that she applied in four other schools for the post, using the same CV, and she was shortlisted in all four schools except in Mzomusha Primary School, where she was and is currently still deputy principal. She admitted that she was not acting in the post for more than twelve months.
22. She conceded that there was nothing in the criteria which stated that a candidate with a total number of years of experience which is more than the other candidates including the REQV ranking must be shortlisted.
23. She further conceded that in terms of the HRM Circular any candidate may apply for a post of principalship and be eligible for appointment irrespective whether he/she is post level 1, 2, 3 etc.

Respondents’ evidence

1. Melusi Dladla is an educator at Mzomusha Primary School, a member of the SGB and the 1st Respondent’s sole witness.
2. He testified that he started to work as an educator at the school in January 2019. He participated in the selection process which is the subject of the arbitration hearing as a scorer. The Applicant is his colleague. She was not shortlisted based on the criteria which the IC established to select the five candidates.
3. They use a guide contained in the ELRC Resolution 11 of 1999 to establish a criteria that will adapt to the needs of the school. They agreed to look into experience in school management.
4. They further agreed to look into experience and participation in the implementation of educational policies, participation in district, regional, provincial, national and international organization within the sector of education.
5. They also agreed to look into community orientated individual who displays a high level of participation within the community (Exhibit B page 5). The school is big and they wanted someone who would be able to hit the ground running, someone who would have been a principal in a smaller school or who acted in that capacity.
6. There were three scorers during the process who did individual scoring. At the end of the scoring of each CV the scorers would read out the score allocated. The secretary would then add the scores for each criteria and divide the scores by 3 to get the average score in respect of each criteria.
7. He stated that the principal represents the HOD at the level of the school as an accounting officer and is also responsible for the implementation of the Post Provisioning Norm (PPN), in respect of educators who are additional to the establishment due to the curricular needs of the school.
8. He explained that there were two Trade Unions that were part of the process i.e. NATU and SADTU. The procedure manual provides for their presence as observers to ensure that the process is free and fair, and in respect of this process, the Unions declared it as fair.
9. The Applicant never acted for more than twelve months, it was not compulsory to check her CV, and the HRM circular does not state that if a candidate has an honours degree or a PHD, he/she must be shortlisted before anyone else.
10. During cross-examination he stated that he has a Bachelor of Education (BED) in Social Sciences and languages. He commenced his career as an educator in January 2017 at Mandlakazulu Primary School in an SGB post.
11. After a period of two years, he became a temporary educator and a year later he was converted to a permanent educator at Mzomushu Primary School. He also served as a teacher component in the SGB and in the Interview Committee (IC).
12. He confirmed that the task of the IC is to assist the SGB to recommend a suitable candidate for appointment to a post. He stated that when the criteria is established there must be a prioritisation of the needs of the school.
13. The IC members do not read the entire CV including the qualifications. They focus on the sections appearing on page 21-22 par 1.16 – 1.19 of Exhibit B, where provision is made for qualification to be listed under par 1.18.
14. He conceded that in the 2nd Respondent’s CV, no qualifications are listed and that the Applicant’s REQV is the highest at 16 (Exhibit B page 22 par 1.18. He however explained that they were not looking for a candidate with the highest qualifications.
15. He further conceded that the candidate whose CV was marked as No. 25 was an HOD, post level 2 whereas the Applicant was and is still a deputy principal with 9 years’ experience. (Exhibit C page 16).
16. He qualified his response by stating that there is a page that is missing in the CV. He would not know what else the candidate would have written and therefore he could not speak for him/her.
17. He explained that the minimum requirements for an educator to be principal is seven years teaching experience and the minimum qualifications is a diploma. There are many principals at the schools who only have diplomas and are performing well.
18. When it was put to him that there is a variation in scoring between the 1st and 2nd process, he stated that he could not comment because scoring is the responsibility of three scorers. He disputed that hey misdirected themselves in the application of ELRC Resolution 11 of 1997.
19. When it was further put to him that in the public service CVs are not hidden, he stated that in the selection process only the numbers are read out to avoid favouritism. When it was also put to her that the Applicant was shortlisted in other schools, he stated that the needs and the criteria may differ. He stated that he is also not aware that the Applicant fabricated her CV.

Closing Arguments
Applicants’ Argument

1. Mr Dube argued that on the strength of the Applicant’s credentials contained in her application, she ought to at least have been shortlisted. The contents of her CV made under each of the criteria prescribed by the ELRC Resolution 11 of 1997, are certainly just as good if not better.
2. She had a high qualification and REQV rating based on the number and level of the qualifications compared to all the 5 shortlisted candidates including the 2nd Respondent. She had the most overall years of teaching experience compared to al the 5 candidates who were shortlisted.
3. One candidate had lesser qualifications, far lesser teaching experience, held a junior position as HOD, than the Applicant. On objective considerations, she could not have scored lower than the 2nd Respondent on the criteria relevant to the qualifications and experience.
4. Section 195(1) of the Constitution of the Republic of South Africa and section 7 (1) of the Employment of Educators Act 76 of 1998, provide that in the making of any appointment, or in the filling of any post on any educator establishment, due regard must be had to equality, equity and other democratic values and principles, which are contemplated in section 195(1) i.e. ability of the candidate and the need to redress imbalances of the post.
5. He argued that in terms of clause 1 and 2.1 of the ELRC Resolution 11 of 1997, the main criteria for shortlisting and interviewing, would be the same for all posts up to post level 4. The focus under each criterion may change to accommodate the special needs and designation of the different posts.
6. The assessment for shortlisting and interviewing will be based on a 7-point scale. The filling off posts up to post level 4, will comply with the following criteria for shortlisting:

a) Leadership: Administrative, Management and related experience;

b) Organisational ability and experience;

c) Professional Development, Educational experience and insight;

d) Leadership: Community related.

1. The Resolution is more of a constraining Collective agreement than an enabling or empowering one. It only permits the change of focus under each criterion to accommodate the special needs and designation of the different parts, not the special needs or designation of schools.
2. The purpose of the Resolution was to provide guardrails against arbitrary decision making and unfettered discretion by those exercising power in regard to employment in the public service schools.
3. He argued that the IC misdirected itself in the application of the Resolution by only scoring information contained in paragraphs 1.16 – 1.19 of the CV and not considering information outside of those paragraphs. The form is designed by the Department, and it does not say the IC mut limit itself to the information contained under those headings, nor does the Resolution say that the IC must adapt the criteria to the needs of the school.
4. He further argued that Collective Agreement no. 2 of 2020, section D par 2.4 at page 48 and section E par 2.4 at page 66 provides that the performance standards in the instrument, form the core elements of the job description for deputy principals and principals.
5. He asked for the process to be redone from shortlisting and conducted by a panel constituted by the Department, without any involvement of the members of the governing body of Mzomusha Primary School.

1st Respondents’ Argument

1. Mr. Makhooe argued that the Applicant gave information of over 9-years’ experience in her CV. The information related to the previous school, and it was stale and outdated. There was also a vehement objection to the relevance of her refusal to act as a principal.
2. There are policies that can only be implemented by the principal or Acting Principal and not by a deputy principal i.e. the staffing circular. The Applicant disputed this and said that the SMT implements the circular. The fabrication was to save her case.
3. Nothing compelled the IC to shortlist her since she did not act for 12 months, neither was there a criterion that if you have the most years of experience, you must be shortlisted. There was also no criteria or requirement for REQV. Anyone with 7 years’ experience could be appointed. The Applicant herself was promoted from post level 1 to deputy principal.
4. The criteria based on Resolution 11 was customised into four criterion and all CVs were numbered. The proposition that the performance standards of the principal and that of deputy principal are the same is incorrect.
5. Only the principal and not the deputy principal is involved in the Fincom, and the PPN is only implemented by the principal. Therefore, it cannot be said that the duties of the deputy principal are the same as those of the principal.
6. If the Applicant was shortlisted in other four schools, the criteria of those schools would be responsible. The Resolution produced by the Applicant is far limited than the one that contains guidelines on how to fill the application form and the expected questions and possible answers.
7. He argued that each post is subjected to its crafted criteria which can change at each sitting. There is nothing wrong with the way in which the IC conducted the shortlisting, after all it was the way in which it was trained.
8. There was also nothing wrong with the IC deciding to zoom into the parts of the CV it deemed appropriate to score, after all paragraph 1.18 included qualifications etc. Resolution 11, customised to a particular school for its needs, informs the shortlisting. Shortlisting a departmental head over a deputy principal cannot constitute an unfair labour practice.
9. He argued that the Applicant woefully failed to prove her case and asked for the case to be dismissed.

Analysis of evidence and argument

1. In terms of section 186(2)(a) of the Labour Relations 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.

1. In IMATU obo Visagie v Mogale City Municipality (JR86/15) [2017] ZALC JHB 432, the Court held that the law requires the Employee to show the existence of the conduct or decision complained of. It held that therefore the onus rests with the Employee.
2. It is common cause that when the Applicant applied for the post, she was a Deputy Principal at Mzomusha Primary School and that she is currently still occupying the same post as post level 4. It is also common cause that the 1st selection process was restarted following a successful grievance after she was not shortlisted.
3. It is further common cause that she subsequently lodged a 2nd grievance which was unsuccessful after she was once gain not shortlisted during the 2nd process. It is common cause that the 2nd Respondent was appointed to the post as principal of the school.
4. It does not appear to be in dispute that the Applicant had overall high qualifications and REQV ranking compared to the five candidates who were shortlisted, including the 2nd Respondent, except that according to the 1st Respondent, this information was neither relevant nor considered.
5. There is an apparent dispute about the number of years that she has been in the post of deputy principal at the school, her involvement in the implementation of educational policies and her experience in terms of the information she provided in paragraph 1.18, page 60 of Exhibit A, in one of the headings that were considered and scored.
6. The 1st Respondent’s case was that the information about the number of years in the post was stale and outdated while the information at paragraph 1.18 is a fabrication although no evidence was presented to prove this allegation.
7. The crux of the matter is whether the 1st Respondent acted fairly in failing or refusing to shortlist the Applicant. To answer the question, I start with the Z83 form. The text located on the left side of the 1st page under the introductory headings explains the purpose of the form.
8. It states that “the purpose of this form is to assist a government department in selecting a person for an advertised post. This form may be used to identify candidates to be interviewed, you need to fill in all sections of this form completely, accurately and legibly, this will help to process your application fairly.”
9. The evidence established that in respect of the Applicant’s application, all the sections of this form were filled in completely, accurately and legibly or at least there was no issue raised by the Respondent in terms of how the form was filled.
10. In terms of HRM circular no. 20 of 2024, the procedure manual developed within the framework of the Personnel Administrative Measures (PAM), the obligations of the state as the Employer in relation to Section 195 and 197 of the Constitution of the Republic of South Africa include, the ability of the candidate, and the need to redress the imbalances of the past in order to achieve broad representation (par 2.1.1).
11. The education qualifications, statutory requirements and experience required for the appointment to the post of principalship, Grade P1 to P5, would be the same as departmental head and deputy principal in terms of educational qualifications statutory requirements, competency and skills.
12. The aforesaid include a recognised 3- or 4-year qualification which includes a professional teacher qualification, registration with SACE and advanced knowledge of teaching as provided for in the professional qualification.
13. The only difference in respect of a principal and deputy principal is good management skills and leadership under competency and skills in a functional field, good knowledge of appliable educator legislation, regulations and policies under generic in the case of a principal and 7 years of actual teaching experience.
14. The criteria used by the IC to conduct short listing must be fair, non-discriminatory and in keeping with the constitution of the country, and the curricular needs of the school.
15. Shortlisting and interviews must comply with the following criteria in terms of Resolution 11 of 1997, which stipulates as follows:

a) Administrative, Management and related experience 7 x 2;

b) Organisational Ability and Experience 7 x 1;

c) Professional Development, Educational Experience and insight 7 x 2;

d) Leadership: Community related 7 x 1

Total Score 42

1. The assessment for shortlisting and interviewing will be based on a 7-point scale applied as follows:

Score Scale Description of Scale

| Score | Scale | Description of Scale |
| --- | --- | --- |
| 1     | Weak     | Does not meet any requirements for the post   |
| 2     | Poor     | Far below minimum requirements   |
|   3     |   Fair: Just below Average     |   Meets some of the requirements     |
| 4       5           | Satisfactory:  Adequate, Average       Good:  Above Average           | Meets most of the requirements     Meets most of the requirements more than adequately     |
| 6       | Very Good:  Considerably above       | Meets all of the requirements considerably more than adequately   |
| 7   | Excellent:  Outstanding | Exceptional, very little room for improvement |

1. The Interview Committee Chairperson must brief the panel members on the shortlisting and appointment processes and manage a meeting to agree on the key selection criteria to use to shortlist candidates.
2. When taking into account the above-mentioned provisions, one would at east expect the Applicant to have been shortlisted based on her qualifications and experience. She did not have an automatic right to be shortlisted, but her exclusion should have been meaningfully explained.
3. The 1st challenge with the 1st Respondent’s case is that although the tribunal was directed to paragraphs 1.16 – 1.19 to justify why the entire CV/application was not considered, and that the candidate’s qualifications are catered for under paragraph 1.18, in the 2nd Respondent’s CV no qualifications are listed.
4. The 2nd is that it is also not clear what information was considered for scoring and how it was scored, and Mr. Dladla was unable to assist the tribunal in this regard because he stated that the scoring is the responsibility of three scorers. He did not at least explain about his own scoring.
5. The 3rd is that the IC focussed on the needs of the school as opposed to the curricula needs of the school as per HRM Circular No. 20 of 2024. The 4th is that no evidence was presented to substantiate the claim that the Applicant fabricated her CV.
6. For these reasons there is therefore uncertainty about the extent to which the IC complied/adhered to the HRM Circular no. 20 of 2024 and Resolution 11 of 1997, and the extent to which it deviated from them.
7. In the circumstances I am therefore satisfied that the Applicant satisfactorily established a prima facie case of an unfair labour practice against her.
8. I therefore make the following award; Award
9. The shortlisting process was not fair and rational, and constituted an unfair labour practice against the Applicant.
10. The appointment of Mr Siyanda Msomi, the 2nd Respondent to the post of principal at Mzomusha Primary is hereby declared unfair and set aside with immediate effect.
11. The selection process must be redone from shortlisting, and the IC must ensure that it shortlists the right people and that the correct information is considered for scoring and it is correctly scored.
12. I make no order as to costs.

P Cele: ELRC Commis