Case: ELRC 1034 – 21/22KZN
Date of Award: 08 June 2025
Panelist : Vuyiso Ngcengeni

Province : KwaZulu Natal
Employee : NAPTOSA obo Pillay M
1st Respondent : Department of Education – KwaZulu Natal
2nd Respondent: Motaung M
Issue : Section 186(2)(a) – Unfair Labour Practice – Promotion
Venue : Pietermaritzburg

Employee representative : Mr Charles Adams
Email : cadams.fhp@gmail.com

1st Respondent Representative : Mr Snethemba T Daniso
Email : Sinethemba.Daniso@kzndoe.gov.za

2nd Respondent Representative : Mr Vasco Shabalala
Email : benedict.26@gmail.com

ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter was scheduled before me on a number of days, the first being the 19th of September 2023 and the last day being the 13th of May 2025. It was held at the 1st Respondent’s premises in Pietermaritzburg, under the auspices of the Education Labour Relations Council (the Council) in terms of s191(1)(iv) of the Labour Relations Act of 1996 as amended (the LRA).
2. The Employee was present at all times and she was represented by Mr Charles Adams from NAPTOSA, whist the 1st Respondent was represented by Mr S Daniso and the 2nd Respondent by Mr V Shabalala.
3. The hearing was conducted in English and it was electronically recorded.
4. The Employee submitted one bundle referred to as “A” which consists of the pre-arbitration minutes, the shortlisting minutes and the grievance outcome.
5. The 1st Respondent submitted bundles B which is made of applications by various applicants for the post, including the Employee’s and the 2nd Respondent’s. Bundle C is the HRM Circular no 35 of 2021 which includes the contested post of Deputy Principal at Open Gate Special School. The school caters for learners wo are intellectually, mentally and physically challenged.
6. I received all the closing arguments by the 29th of May 2025.

ISSUE TO BE DETERMINED

7. In terms of the pre-arbitration minutes which are duly signed by the parties, I am called upon to determine whether the Employer acted fairly when it failed to invite the Employee to the interviews, on the basis of the below –

7.1 The Employee was not given a fair opportunity to compete for the post by not being shortlisted.
7.2 The Employee met all the criteria to be shortlisted.
7.3 There was interference in the shortlisting process by union representatives.
7.4 The Employee was the best candidate for the post.

8. The Employee wants the process to either be started afresh and conducted by an independent panel or that she be compensated.

BACKGROUND TO THE DISPUTE

9. The Employee commenced employment with the 1st Respondent on the 23rd of January 1989. She currently occupies the position of Head of Department (HoD) on level P2, at the Open Gate Special School, earning R 32 000 per month.
10. On July 2021, the 1st Respondent advertised a post for the Deputy Principal (the post) at the Open Gate Special school on HRM Circular NO 35 OF 2021. The Circular included three other posts: Teacher on post level 1, Departmental Head on level 2 and Principal on level 4.
11. The Employee applied for the post but she was not shortlisted. The 2nd Respondent was appointed on the 1st of May 2022, and his appointment was announced on the 17th of March 2022.
12. The union, on behalf of the Employee referred the matter to the Council for conciliation on the 17th of March 2022. An attempt at conciliation took place in April 2022 and was unsuccessful. The union then referred the matter to the Council for arbitration on the 29th of April 2022.
13. The matter was then set down for arbitration firstly for the 19th of September 2023, the 1st of March 2024, 20th January 2025, 26th of March 2025 and the 13th of May 2025.
14. The Employee was not shortlisted for the post and the five candidates below were shortlisted: –
    Name Score
    14.1 Mrs NV Magwaxaza: 28.66
    14.2 Mrs G van Wyk: 30.99
    14.3 Mr M Motaung: 29.65
    14.4 Mr T Shange: 28.33
    14.5 Mr A Biyela: 28.66
15. The reasons for the 1st Respondent to not shortlist the Employee include the allegation that she did not adhere to the requirements set out when completing the CV in the 1st Respondent’s website, mainly, that in more than one of the four categories listed from paragraph 1.16 to 1.19 (page 4-5: bundle B), she began typing next to the headings and she exceeded the number of lines beyond that which is prescribed in the shortlisting criteria (page 5-6: bundle A). By so doing, the Employee put herself at an advantage whilst the other competitors who adhered to the prescribed number of lines were disadvantaged. This resulted in her original score of 30.33 being marked down.
16. During the arbitration and the analysis of evidence, I have taken into considerations the provisions of ELRC Collective Agreement, 3 of 2016.

SURVEY OF EVIDENCE AND SUBMISSIONS
Employee’s case
The Employee testified under oath as follows: –

17. Her experience includes attending to learner absenteeism, discipline, guiding and supporting educators, plan schedules for assessments, reporting. In terms of the curriculum, she monitors it and its delivery, designs the time table, monitors teaching in terms of the time table.
18. Her CV is contained on page three, with her personal and professional details as a departmental head. She has 32 years of service.
19. On page 4 is her teaching experience at the school, and also her experience, the subjects taught from 2008 to 2018 when she was promoted to her current post.
20. She has not only been an Educator, she had been a Senior Administrator as well and had 14 years of being an Educator of Learners with special needs.
21. The criteria for shortlisting is listed on 1.16 to 1.18, the categories: –

21.1 LEADERSHIP, ADMINISTRATIVE, MANAGEMENT AND RELATED EXPERIENCE,

21.2 ORGANISATIONAL ABILITY AND EXPERIENCE,

21.3 PROFESSIONAL DEVELOPMENT/EDUCATIONAL EXPERIENCE, INTEREST AND INSIGHT, and

21.4 LEADERSHIP: COMMUNITY RELATED.

22. She has listed all her activities and experiences. During the Covid19, she had to lead curriculum at the school as the Principal was mostly off. She was therefore in charge thereof in terms of its implementation.
23. She also led in the inclusion of the Covid19 challenges into the curriculum planning.She mentors teachers and learners, other departmental heads, manages punctuality, excursions, etc. She was involved in the implementation of Covid19 protocols, also in workshopping teachers.
24. She chaired many organisations: Staff development teacher appraisals, school evaluation committee (school improvement plans), procurement committee (staff purchase assistant devices), also a member of a discipline committee, etc. (in the CV).
25. She was instrumental in forming a report period for the curriculum. Chaired the indigent committee – to cater for children from disadvantaged backgrounds. This committee works hand in hand with the fundraising committee to supplement the income available.
26. On page 4 – 7 of bundle B is her CV which partly states the following-

1.16 LEADERSHIP, ADMINISTRATIVE, MANAGEMENT AND RELATED EXPERIENCE:
I have 4 years of SMT experience as Departmental head, I lead DCAPS LSEN Curriculum during long term absence of Deputy Principal I led other DHs & Senior Phase.

I lead in the following implementation of the SOP – C19 protocols. In particular I led the inclusion of C19 education into the curriculum and C19 timetable. I mentor teachers on learner profiles, preps, assessments, schedules and reports. I am responsible for phase meetings/facilitating e.g. monitoring punctuality, phase assembly, safety zones, co curricular activities, excursions, etc. I led my phase to include C19 in the code of conduct.

I actively led the implementation of protocols. Lead the phase in SIAS, ISPs, and Adm of Learners etc. I organised relief for teachers and aides. I mentor new educators.
As chair of the indigent Committee I lead the team with fundraising. I was elected as a rep on the SGB. I perform SGB secretary duties and I am involved in drawing contracts, handling of interviews/election docs. I assist to train EEIs in the phase, Chair of Procurement comm – experience in ordering assistive devices for LSSN.
As Chair of IQMS, I was responsible for IQMS/staff development. As Chair of WSE and drawing SIP, Identify needs of the school. On JOC committee assisted in designing the Deviation Plan for Bi Weekly attendance/staggered breaks. I also contributed to the Resurgence Plan, Member of discipline committee.

1.17: ORGANISATIONAL ABILITY AND EXPERIENCE: Chairperson of Procurement & learner welfare fundraising committees. Chairperson JQMS. Identify needs of school from SIP. Organize fund raising events e.g Race Day Annual Dance – secure sponsors – feedback meetings with committee, & staff. Secretary SGB/Fin Comm, organize meetings, AGMS, staff interviews & Phase. Involved in organising school events, inaugural and Anniversary functions, invite Dept Officials, Councillors & Mayor. Attended DCAPS workshop feedback, differentiated learning planning & assessments, terms plans and schedules. Experience from attending SANASE conference CPT – organising service providers to promote Assistive devices, adapted LTSMs, furniture and equip resources, curriculum training in DCAPS-SID Autism LSPID- Skills elective. Mentoring, guiding, supporting & orienting new educators and EEs; organising training programme & class observations. Phase development; sewing, ISPs, Secure & organised weekly meals, hampers, uniforms, hygiene products. Reach out to service providers, community, business, to assist learners affected by the riots. Prior C19 – responsible SMT member to organise school excursions. Securing safe venues, donations for indigent learners, transport & departmental permission. Informing parents & SEM of excursions, meetings with educator/support staff, drivers check at safety protocols in place.

1.18PROFESSIONAL DEVELOPMENT/EDUCATIONAL EXPERIENCE, INTEREST AND INSIGHT: I have Bed Honors, ACE, JPED majors-inclusive Ed/Barriers to learning. Management Accounting Finance Diploma, Developed Insight identifying barriers to learning in SIAS process & correct placement of learners. Bible studies helped me to adapt to the Christian Ethos of the school & guide learners & staff during the pandemic. Experience to support & guide SGB Principal Bursary on PFMA e.g Budgets & control of finance. Open gate is classified as a resource centre & having the knowledge of inclusive Education. I am able to assist-correct placement of leaners.

Which is vital and assist with an inclusive learning programme, formal differentiated lesson & assessment plans, group assessments, schedules, and reports. Guided & Supported my phase educators with the above and also differentiated teacher strategies & assessments ensuring no learner is left behind. Was instrumental in Curriculum trimming adjusting school times with Principal & SMT Formatting and implementing new Time Tables for all phases. Adjusted class lists for Bi Weekly program, Weekly calendars to parents for the 2 groups. Adjusting the school year plan with Principal – Handing to staff & SGB. Assisting Principal with monitoring curriculum delivery in all the different streams at our school. Attended QMS, C19 protocols, SOP, Risk assessments, First Aid, SA Sign Language, ACC Central palsy Epilepsy, ADHD & Challenging behaviour. As SDT member identified development needs for my educators. Phase development of sewing skills & isiZulu. Previously trained support staff, drivers – reporting EPMDS/PMDS. Work shopped professional & support staff on leave, pension, assumption of duties, salary & many other administrative matters.

1.19: LEADERSHIP: COMMUNITY RELATED: Chair of Learner Welfare Committee & Secretary of the SGB/Finance Committee interact regularly with service providers & I’m able to acquire sponsorships & donations. Our school is a beneficiary of Community Chest & I deal directly with them for organising learners to perform, Dances/Sketches at their charitable events. Liaison with City Harvest Ministries who organise Christmas gifts for the learners. I am on the Spiritual Board in my Church and I organise the youth to participate in school events, Easter/Curriculum day. They sponsor meals & hampers for learners for our Christmas Concert. Prior to C19 I organised the Church Elders to render counselling for our learners who had discipline problems, those affected by bullying & those that were easily influenced to drugs & alcohol. I work with orphanages & old age homes with regard to Evangelism & donating meals. I also organise for our learners to render entertainment items & organise with my phase food production lessons to make cup cakes to donate to the elderly. I am able to approach local businesses & our service providers to assist learner/unemployed parents who were affected by the riots & their homes burnt down / vendors where affected. Recently approached Willowton Bakery to assist with sponsoring equipment for the food production classes & they have in turn offered to provide free baking lessons for our very able learners however this will only take place when SA is on Level 1.

27. On page 8 – 10 of bundle B, is the 2nd Respondent’s CV which partly states the following-

1.17: ORGANISATIONAL ABILITY AND EXPERIENCE: we organised an open day for the prospective learners into our LSEN school, which is half yearly. We organised a meeting and an agenda was drafted. A committee was formulated. Together with the committee we plan, assigned duties and coordinate the proceedings. Members were delegated with tasks. Every member has accountability, invitations were sent to the District Office and inclusive Education Offices, gues speaker, schools and other stakeholders. Follow up meeting to report on the progress was organised. Programme of the day was drawn up and ensured that consequence management and responsibility was clearly stipulated. Safe and security, as well as Covid 19 committees were brought on board. The SGB is given the feedback on the progress. On the D-day as the function unfold, committee was the oversee & monitor the progress. A review meeting was again organised to thank all the people who were involved and responsible for the event. This was done for the purpose to eventually reviewing the effectiveness of the event for the future purposes. Committee members were afforded the opportunity to democratically share their views on their findings and the findings were a successful event.

1.18PROFESSIONAL DEVELOPMENT/EDUCATIONAL EXPERIENCE, INTEREST AND INSIGHT: I possess an Honours Degree in Bachelor of Education, ACE, STD (Technical) Diploma NTC 3, and Trade Test Diploma. Attended workshops and training in CAPS, Indusive Education, Mechanical Technology, Technical Occupational (TO) curriculum, Agriculture and Natural Science. I also have attended OMS Workshop organised by the District Office. Attended multi level teaching workshops which was school based and organised by the NGO, also attended the workshop on LTSM purchasing and management and I have workshopped educators for effective accountability. The B. Ed Honours has equipped me with management skills and understanding of educational policies, e.g SASA, PFMA, National policy on Education, etc. I have a vast experience in the teaching of learners with special education needs. I have conducted workshops and training in CAPS and Technical Occupation to educators at our school, where teacher gain CPTD points. My education experience is progressing, being the Department Head, dealing with discipline and cultural diversity, monitoring and evaluation of the effectiveness of inclusive education at our school, as member of an SMT and the Department Head, I am the part of the team that is involved and responsible for the admission of the school, whereby applications for admissions are thoroughly scrutinized to make the informed and executive decisions. I’ve developed departmental and subject policies on assessment and interacted with colleagues, learners and parents.

1.19: LEADERSHIP : COMMUNITY RELATED
I am involved in the community outreach programme, I use my skills and experience acquired over the years as a Grade Head for the Agriculture as well as the Departmental Head to facilitate the importance of agriculture ad impart the skills to learners and parents to enable them to grow vegetables and harvest. This will help to support their families and communities. Using the transformational leadership, we also allow the community to have plots on the portion of land in the school to provide them with opportunity to grow their own vegetables. This will assist the school and the community on mutual grounds by so. Such provides the school with security because the community knows exactly that the school is their provider and school is protected from break ins and vandalism. I am also a volunteering member of the community policing forum, responsible for protecting the community and the school. Thus, working in collaboration with SAPS and all the relevant stakeholders to serve and protect. My experience had assisted me to be able to solve some of the volatile matters within the community. We also have seminars whereby we make the youth aware about the issues of the Gender Based Violence, rape, harassment, help tem to be able to identify and report these immediately. This assist the men and boys to be able to conduct themselves around women and young girls.

28. On page 19 – 20 of bundle B is Ms NV Magwaxaza’s CV which partly states the following-

1.16: LEADERSHIP, ADMINISTRATIVE, MANAGEMENT AND RELATED EXPERIENCE:
I have 20 years teaching severely mentally challenged learners and learners with severe behavioural problems. 4 years experience as Head of Department responsible for planning organising, leading, control and managing DCAPS and Skills ensuring planning, implementation, development and differentiation. As IQMS chairperson I am responsible for Whole school development to ensure smooth running of our school including hostel learners and hostel staff members, transportation of learners by ensuring safety when on our school bus. I draw ground duty rosters for educators and Teacher Aides, class and personal timetables to ensure smooth running of the phase and school at large. I am actively involved in staff development, maintain discipline and counselling of learners with behavioural and social challenges. During this pandemic period I organised staff development for Covid19 protocols to ensure that staff members understand and implement all protocols to ensure safety of learners and all staff members. I worked on contingency plan to ensure that all protocols are observed during Skills lessons..

1.17: ORGANISATIONAL ABILITY AND EXPERIENCE:
As the Head of department my responsibility is to manage curriculum and ensure smooth running of the phase and the school at large. To ensure implementation of DCAPS as the pilot programme. I organised staff and development programmes for educators. I organised group chats to limit phase meetings ensuring that all necessary information reaches staff mebers and open platform for discussion on ground chat. As the DH for exit group I organise annual Parent meetings to advise parents of the available services for their exit children and liaise with Health Department and Khulisani to recommend our exit learners. I organised workshops for support staff to ensure everyone’s responsibility towards LSPID and SMH learners. As the IQMS Chairperson I ensure that staff appraisals are moderated and captured in SASAMS. During this pandemic period I worked closely with educators to ensure that Covid 19 protocols are understood and implemented to all members.

1.18PROFESSIONAL DEVELOPMENT/EDUCATIONAL EXPERIENCE, INTEREST AND INSIGHT:
I have 25 years learning experience at an LSEN schools. I qualified with Senior Primary Teacher’s Diploma (SPTD).

Further Diploma in Educational Management (FDE) and Honours Bachelor of Education with specialisation in inclusive education, barriers to learning and leaving Support. This enable me to identify barriers ti learning and development of inclusive learning programmes. I attended workshop on SIAS process and LSPID. This eneabled me to workshop support staff members on their role in safety and special needs learners and LSPID at school and out of school. I also attended the following short courses crucial for Special needs learners i.e First Aid course, SA Sign Language, Hiv & Aids and infected learners.

I also attended DCAPS, Curriculum Coverage workshop to ensure that our school is in line with required standard for all Special Schools. I am a member of SBST. I attended a workshop on how to manage school finance as per PFMA.

I conducted meetings with our stakeholders. I represented our Principal in South African National Association of Special Schools. This enabled me to network with managers and SGB members from other Provinces in order t improve service delivery.

1.19: LEADERSHIP : COMMUNITY RELATED
I am a social responsibility co-ordinator. My duties are to facilitate programmes to support needy families. I am actively involved in identifying indigent families and request donations from church members, and friends. Church groups also conduct Sundat School programmes with our hostel learners.

I am the secretary of the non-denominational prayer group in my community. We offer outreach programs to old age homes and Indawo Yethemba Children’s home at Ashburton. In return the old age home participates in school programmes e.g Cultural Day and Christmas Day. As the skills Phase DH for exit learners I request donations of school uniform from parents of exit children for the welfare committee to give to needy learners. This enables the Welfare committee to assist other indigent learners at the school. I also participated in the Intermediate Phase programme where we raised funds for indigent learners for excursions and school photos.

29. There were no criteria indicated in the minutes on how to score, such as on 1.16, 1.17, 1.18 and 1.19 and how the five candidates were shortlisted, except for that stated on 6.8. On page 11 – B, the document is for Shange, who applied for the position of Principal ship, which is an incorrect post number, together with the reference number.
30. Educators are required to register with a professional body which is SACE (South African Council for Educators), Shange responded that the registration was not applicable, meaning it was not required. On page 19 – B, clause 5.7 – An applicant has to be affiliated to a professional body. Shange should not have been shortlisted.
31. On page 8, the 2nd Respondent indicated that he was the departmental head, whilst on page 13, Shange indicated that he was the Deputy Principal. On page 18, Ms Magwaxaza was the departmental head, on page 23, Ms Biyela indicated that she was a level one Educator and Van Wyk was the departmental head.
32. Three of the candidates held the positions similar to hers. The 2nd Respondent on 1.16, only organised one event, whilst in her CV, she organised many events.
33. On 1.17, she indicated more activities than Shange and Magwaxaza. She and Biyela both display a variety of organisational capabilities.
34. All of the shortlisted candidates, together with her on 1.18, were involved in a variety of community activities. She and Van Wyk have similar qualifications and experience and both display a variety of organisational responsibilities.
35. Overall, the shortlisted candidates have similar experience and qualifications, but she has indicated more than them.
36. In the minutes, there is no indication whatsoever that there were CVs which had gone over the lines or have exceeded the number of lines prescribed. Also, there is nothing that defines the font size and how much information should go into the line / row.
37. She has the same qualifications as the 2nd Respondent but she was involved in more projects than him. also, she has similar qualifications to Shange and Gwaxaza, but she indicated more activities. She has similar qualifications and experience as Biyela’s.
38. Validation of applications as mentioned on clause 5.7.1 read thus –

5.7.1 In respect of serving educators the required documentation as outlined in 5.6.1(a) above must be submitted to their Principal/Principal’s Nominee/Supervisor and in the case Principal/Acting Principals to the Circuit Manager. In this regard, information as contained in the application form (Z83) must be verified against the educator’s personal file.

5.7.1.1 Surname and initials

5.7.1.2 Post Reference Number

5.7.1.3 Education Qualifications

5.7.1.4 REQV: Category classifications e.g (M+3 or REQV 13)

5.7.1.5 Present post held

5.7.1.6 SACE registration number or proof of registration thereof

39. There is no restriction as to the font size, and how much should go in.
40. Overall, she has noticed a lot of similarities also on the various categories, and she has indicated more than others.
41. Cross examination –What is contained on 6.1 and 6.2 is not the criteria. When it was put to her that she does not know what she is talking about, she said she knows what a criteria is and there was no criteria.
42. To say CVs must not exceed the number of lines provided is not a criteria, that is just to determine the lines and that they should not be exceeded.
43. On 1.16 on her CV, there are nine lines. She agrees that if the lines will exceed the number provided, that will mean there will be more information, thus advantaging that candidate when compared to the others.
44. There was no criteria at all, even after the points on 6.1 and 6.2 were put to her as per the minutes.
45. The 1st Respondent asked her as to how does she know if the criteria as set out does not qualify to be the criteria, she maintained that there was no criteria. Again, it was put to her that starting from number para 6 to 7 is part of the criteria set down by the IC, she maintained that there was no criteria.
46. When asked if she believed that the criteria as set down was unfair to her, she said there was no criteria.
47. She is not sure if the unions would participate in a process where there was no criteria. As per the minutes, the unions were present.
48. On 1.17 should contain 8 lines and she utilised 8 lines. She starts counting from the second line.
49. When asked if para 6 which reads “If there is a variance of 3 points, the scores will be discussed and changed if necessary. This will apply to all sections. CVs will be read once. However, the Secretary may be asked to re-read a CV for clarity” Is not the criteria, she said it does not speak of to a criteria.
50. She was not in the shortlisting meeting. It was put to her that para 3 on page 6 – A is part of the criteria, she did not respond.
51. She denied that when the IC deliberated on the issue of nine, 10 and 12 lines, that was the criteria being agreed upon. She said she understands what a criteria is. She denied that paragraphs 3, 4, 5, 6, 7, 8 on page 6 are part of the criteria set, and maintained that there was no criteria at all.
52. The circular does not state that she needed to write in a particular manner. She does not agree with her union representative in the shortlisting committee which had agreed and signed that the process was undertaken fairly.
53. There is an irregularity on Shange’s CV, as he did not submit his SACE certificate when submitting his z83.
54. She should have been shortlisted and she would have shown that she was the best candidate when compared to the five shortlisted candidates and all the 40 others who had applied for the post.
55. She conceded her that all the five shortlisted candidates have more years of experience than her, however, she maintained that had she been shortlisted,she would have been appointed to the post.
56. The HR circular does not state what space she needed to utilise and she did not exceed the lines provided on each category. On 1.17, 8 lines were provided and she utilised 8 lines, as she starts counting from the second line. She did not exceed the 8 lines by starting to write on the same line as the heading. The documents do not say she did not have to start next to the heading. There are others candidates who also did the same.
57. She conceded that no one amongst the shortlisted candidates started writing next to the heading, but that did not put her an advantage because there is no clarity in the circular on where to start writing.
58. She conceded that some of the information on her 1.17 don’t fall within this specific category, but falls on 1.18, such as attending workshops and seminars. Also, reaching out to service providers and businesses and community falls on 1.19 category, not 1.17. She maintains that the headings of the categories flow from each other.
59. On category 1.18, there are 10 lines provided and she started writing next to the heading. The information provided is within the lines, she did not exceed them. Although on the 4th line, she wrote double rows, there is no criteria and if this was an issue, Biyela also did the same on 1.18.
60. She agreed that on 1.18, she wrote 11 lines in her CV because she started next to the heading. The provision is 10 lines.
61. It was put to her that she was not shortlisted and that she was the only one who wrote on double rows in the same line provided, she disputed that and said others did so as well.

Ms Lauren Green (Green) testified on behalf of the Employee as follows: –

62. She was part of the IC and at that time, she had no experience, but they were trained.
63. Shange was shortlisted for the post, however, educators are required to register with South African Council of Educators and his response was that it was not applicable, which means the registration did not apply to him or he is not registered.
64. She and some other members of the IC had concerns regarding the process. There appeared to have been a double hand and she raised the concerns during the process. The union indicated that the matter had been ongoing for a long time and she felt threatened.
65. Some scores were changed. The shortlisting minutes contain the criteria for scoring the candidates. She thinks CVs were scored unfairly due to the fact that the minutes do not indicate the curriculum needs of the school.
66. The CVs were scored through the secretary reading them out. The IC did not adhere to the requirements of para 8.1.1 and 8.1.2 which states that –
    8.1 The Interview Committee must conduct short listing subject to the following guidelines:
    8.1.1 The criteria used must be fair, non-discriminatory and in keeping with the Constitution of the country.

8.1.2 The curricular needs of the school.

67. The Employee’s score is 30.33 which puts her in the second position, which means she should have been shortlisted. Her scoring was changed because a union representative became involved and decided that the score was too high, not the IC.
68. She has no comment regarding CVs no 29 and 15.
69. The unions were directly involved in the shortlisting process, they influenced the scores of a couple of candidates and they went along with regard to changing the scores.
70. Para 6 states – . If there is a variance of 3 points, the scores will be discussed and changed if necessary. This will apply to all sections. CVs will be read once. However, the Secretary may be asked to re=read a CV for clarity. There was no discussion in terms of this paragraph.
71. The reflected on page 9-11 on category one: 12, 8, 11 and there is a variance of 4. On category three are: 11, 8, 11 and there is a variance of 3. In category 3: 6, 4, 3 which again means there is a variance of 3. There is no indication of discussions in terms of paragraph 6.
72. On page 13-14, on category 2, the score is: 6, 4, 3, there is variance of 3. Again, there is no indication of a discussion in terms of paragraph 6.
73. On page 29 are the Employee’s scores. Her original scores are: on community & leadership: 6. On category 4: 6, 4, 4. The variance is less than 3 so in terms of para 6, it should not have been discussed because it is less than three. For this reason, her scores should not have been changed.
74. There are others scores in respect of the Employee which were changed, her scores were scratched.
75. The unions did not bring all substantive fairness and they did such to all the candidates, not just one.
76. There was no reason for the unions to be involved on the Employee’s CV.
77. Cross examination – She is employed as the Senior Administrative Clerk at the school and has been in that position for 18 years. In the IC, she was assisting the secretary to tally up the points. She attended the training in term sof HRM 35 of the 1st Respondent.
78. She did not recuse herself from the committee. She is not a close friend of the Employee, they are just colleagues.
79. It is correct that the scorers were not aware of who the candidates were. Some scores were changed and it was not necessary. On cv no 39, there was no variance of 3 and such, I should not have been changed.
80. She was unhappy about the entire process, not just as it relates to the Employee. She was not aware that CV no 39 belonged to the Employee, however, she had a feeling that it was, due to how it was written.
81. The criteria was fair, however, it was not fairly applied across the board, it was unfair to cv no 39, when the scores were changed, yet there was no variance of 3.
82. She did not object at the time, but some other members were also unhappy and they objected. The objection is not in the minutes and she does not know why it is not.
83. The unions commented that the Employee has actually repeated the information and therefore, the scores needed to be marked down.
84. It is correct that repeating information can lead to one being marked down, but when repeated in a different heading, it can be accepted and this is her personal view.
85. The unions were supposed to be observers, yet they were very active and banging tables, at some stage, they walked out.
86. Unions are allowed to intervene when there is unfairness as that is their right. The Employee was represented by the union. There should not be any unfairness happening under a union’s watch., and yet there was. Both unions were causing challenges and being vocal.
87. The unions were extremely rude when raising their concerns. They were supposed to do so verbally, not rudely.
88. The Employee’s CV on para 1.17 contains 9 lines yet they needed 8 lines. So it went against the criteria. Things such as “reaching out to service providers” was not supposed to be in this heading.
89. Also, the 4th line, the 5th and the 7th lines on para 1.17 should not have been listed under this heading. She agrees that these are some of the reasons that led to the Employee’s CV being marked down.
90. With regard to the number of lines, the secretary must stop at the prescribed number when reading the CV, where it calls for 10 lines and the CV has more, the secretary should stop at no 10. Given that the Employee exceeded the lines, that should prejudice her.
91. She was writing down the scores to assist the secretary. She raised the fact that she felt intimidated by the unions to the resource person and other members of the IC. She continued to participate in the process.

THE EMPLOYEE ARGUEMENTS

92. The focus centres on whether the Employee’s qualifications expertise and experience were given due consideration during the shortlisting process, and if she was unfairly denied the opportunity to compete for the position with direct reference to Bundle C page 23 point 10.8 including 10.8.1 through to 10.8.10. 7.
93. If a comparison is made between the Employee and the 2nd Respondent based on their work experience, she has far more managerial experience than him. If one takes note of the contents of the Key Performance Areas (KPAs) as outlined in the curriculum vitae (CV), it must be noted that both CV’s are similar in all material respects, with hers exceeding that of the 2nd Respondent in every category.
94. This then begs the question as to why the Employee was not even short-listed, thereby denying her to participate in the process, when it is quite evident, she could have been successfully appointed despite her meeting the criteria as set by the IC.
95. According to the procedural manual HRM No. 35 of 2021 point 15(2), ‘Observers are there to observe that substantive and procedural fairness are adhered to, and not to be directly involved in the processes of shortlisting and interviewing or to interfere with the appointment process by influencing any of the decision during the shortlisting, interviewing or recommendation phase.’ Therefore, as reflected in Bundle A, page 7, of the evidentiary bundle, despite their designated role as observers, union representatives appeared to have exerted influence or interfered with the shortlisting process, contrary to the provisions of the procedural manual HRM circular 35 of 2021, paragraph 15.2. This alleged interference potentially compromised the fairness and integrity of the process, thereby impacting the Employee’s opportunity to be shortlisted.
96. It is inexplicable why the Employee’s score was reduced from 33.33 to 22.32, a significant drop of 10 points, despite her superior experience compared to the 2nd Respondent. Initially, her score would have ranked her CV (EHR8) as the second-highest, making her eligible for shortlisting (see CV 39 on Page 29 of Bundle A).
97. The minutes of the shortlisting and shortlisting criteria on page 5 and 6 of Bundle A are vague and do not properly indicate exactly how the scoring was undertaken by the panel and why the Employee’s CV was reread and rescored, when this was not the case with all other CVs in the bundle or as pointed in the minutes. The purpose of reviewing both CVs would be for the Employee to present a fully-fledged case by showing that she was in fact prejudiced and that she more than met the minimum criteria to be shortlisted.
98. To meet the balance of probabilities standard, the party making the claim must present evidence that is sufficiently convincing and persuasive, demonstrating that it is more likely than not that their version of events is true. A comparison of the CVs provided grounds for the Employee to demonstrate why she was disadvantaged by the IC and by the direct involvement of the unions.
99. In SA Democratic Teachers Union v Minister of Education [2001 (2) SA 21 (CC)], the Constitutional Court affirmed that while unions have a role to play in education, their involvement must not override transparent and fair procedures. Similarly, in Mogothle v Premier of the North West Province and Another [2009 (4) SA 89 (LC)], it was held that administrative decisions tainted by external pressures, such as those exerted by unions, may constitute procedural unfairness.
100. The principles of equity and fair labour practices, as upheld in Kylie v CCMA [2010 (4) SA 383 (LAC)], demand that all employment-related actions be free from bias and improper influence. Moreover, Minister of Education v Harris [2001 (4) SA 1297 (CC)] underscores the constitutional imperative of lawful and fair administrative action, cautioning against the encroachment of third parties into governance processes. These authorities collectively support the Employee’s contention that union overreach may vitiate fair procedure and render the process materially prejudicial, thereby satisfying the burden of proof.
101. For this to be achieved the Employee submitted that she needed to demonstrate the similarities between CVs and how her CV was in fact better and worthy of being shortlisted. The Labour Court’s judgment in SAPS v SSSBC & Others (2010) establishes crucial principles governing promotional disputes, notably that employees have no inherent right to promotion but are entitled to a fair opportunity to compete for posts. Exceptions arise where contractual or statutory rights to promotion exist. In the Employee’s case, the alleged irregularities in the scoring process and the significant drop in her score without justification raise concerns about whether she was afforded a fair opportunity to compete for the post, potentially constituting unfair conduct relating to promotion. This directly impacted her chances of being considered for the role, undermining the fairness and integrity of the promotional process.
102. The 2nd Respondent being appointed to the post does not prove that all the other candidates were substantively and procedurally shortlisted in a fair manner. The Employee was the most suitable candidate at the short-listing process according to her first set of scores ranking her second.
103. The Employee submits that in terms of S186 (2) of the LRA the employer has the obligation to act fairly towards the employee in the selection and promotion process and the employer failed to do so. The Employee avers that the IC was improperly influenced by union representatives, thereby introducing bias into the process. Specifically, it is alleged that the unions impermissibly induced the IC to re-evaluate and rescore her CV, a procedure that contravenes the agreed-upon criteria and the established protocols governing union participation in the process, as outlined in the procedural manual.
104. In terms of the vague minutes of the shortlisting process, the author of the document did not comprehensively capture the process as it unfolded as it is not clear why the Employee’s CV was reread and rescored. Deliberations should be minuted on how each candidate received a scoring and whether this was justified or not when there is a variance of 3 as agreed upon by the IC and is reflected in the minutes.
105. It is respectfully submitted that there existed a deficiency in the procedure followed regarding the selection criteria process, which amounted to her disadvantage to compete for the post.
106. The Employee contends that she was unfairly denied an opportunity to be shortlisted for the promotional post, despite meeting all the stipulated requirements and having demonstrated over 32 years of dedicated service to the Department. In SAPO v Jansen van Vuuren NO and Others [2008] 8 BLLR 798 (LC), the Labour Court held that even in the absence of a right to promotion, the right to be fairly considered is protected, and any deviation from this principle may constitute an unfair labour practice.
107. The Employee submits that the process was tainted by procedural irregularities, undue influence by union representatives, and a failure by the 1st Respondents to act in accordance with the principles of fairness and transparency enshrined in the Labour Relations Act. In Ncane v Lyster NO and Others (DA1/15) [2017] ZALAC 44, the Labour Appeal Court emphasised that procedural fairness requires transparency and consistency, particularly in promotion disputes. The improper role played by union representatives, as alleged here, undermines these principles.
108. It was conceded, whether directly or by implication, that the Employee’s CV, when objectively assessed, aligned more closely with the Key Performance Areas (KPAs) of the position than those of some of the shortlisted candidates. In Gugulethu Community Development Forum v MEC for Education (EC) [2022] 3 BLLR 246 (ECG), it was held that selection panels must apply objective criteria fairly. Failure to do so can invalidate the process.
109. Despite this, her CV was subjected to rescoring, a process not applied equally to others, and one which was not adequately justified nor properly recorded in the minutes. This mirrors the principle in National Commissioner of the SA Police Service v SSSBC and Others (2011) 32 ILJ 1213 (LC), where the court found that unequal treatment in the scoring of candidates, without sufficient justification, constituted an unfair labour practice. This selective rescoring, without a clear procedural basis or consistency, amounts to unfair discrimination against the Applicant in the selection process.
110. The case of City of Cape Town v SA Municipal Workers Union obo Sylvester and Others [2013] 12 BLLR 1246 (LC) held that deviation from established procedures and inconsistency in applying selection criteria can constitute an unfair labour practice. Further, the Respondents introduced the testimony of union representatives from SADTU and CTU-ATU. These witnesses, instead of corroborating the Department’s version, contradicted each other on material issues, including the manner in which CVs were read, the number of lines considered, and the circumstances under which the Employee’s CV was re-evaluated. These internal contradictions cast serious doubt on the reliability and credibility of the Respondent’s witnesses and highlight the improper influence unions exerted over the process—a clear departure from the procedural manual governing such appointments.
111. In Kotze v SAPS (PSSS1265 – 19 June, SSSBC), the panel found that when union representatives unduly influence appointment processes, it constitutes procedural unfairness warranting remedial action. The Labour Court in Noonan v SSSBC and Others [2012] 33 ILJ 2597 (LAC) similarly held that fairness requires transparency and the absence of bias or outside interference.
112. The union respectfully submits that the evidence overwhelmingly supports the Employee’s version. The process was compromised. She suffered prejudice and the employer failed in its obligation to act fairly. In Department of Justice v CCMA and Others [2004] 4 BLLR 297 (LAC), it was held that when prejudice is shown and the process is fundamentally flawed, the decision not to shortlist or appoint can be set aside as unfair.
113. The Employee therefore prays for appropriate relief that will restore equity, dignity, and justice in this matter. In Ndlovu v CCMA and Others [2000] 21 ILJ 1653 (LC), the Court ordered the employer to re-run the selection process due to unfairness—such an outcome would be just and equitable in this case. Relief Sought is that the process of shortlisting be redone with an independent body or compensation.

The 1st Respondent’s case
Mr Mandlenkosi Mpho Motaung (Motaung) testified under oath as follows: –

114. He is the Deputy Principal appointed to the post. He has been an educator for 28 years and prior to his current position, he was the departmental head at Newton Pre-vocational School which deals with learners with learning disabilities such as epilepsy, psychologically challenged, etch, whose grading is moderate.
115. He met the requirements of the post and his application did not exceed the lines prescribed. Because he was following the procedure manual when completing it.
116. He did not influence anyone in the IC to shortlist him. he did not know anyone in the IC prior to the interviews, until he was in the interview room.
117. Cross examination – He had 9 years as the departmental head in his previous school. He had the relevant experience when applying for the post.
     Mr Mduduzi Ndlovu (Ndlovu) testified under oath as follows: –
118. He is employed as the Acting Principal at Usilinga Primary School. His role in the recruitment process of the post in contestation was that of the observer, which is to ensure that the process was handled fairly to all the applicants.
119. The process was fair and free, because before they started as the Interview Committee, which he was a member of, they set a shortlisting criteria which set out how were they going to score the candidates.
120. He was also the Branch Secretary of a union at the time, and he was used to sending union members to go and observe and he would receive reports, so it was not the first time for him as well, to observe. He had been observing for about 20 years.
121. He denies that he left the room during the interviews, he did so only during breaks. He would not have left the room as that would be against what he was deployed to do.
122. He denies having intimidated anyone, everything was done freely and fairly. They were engaging with everyone.
123. Cv no 39 on page 6-7 of bundle A (shortlisting minutes) belongs to the Employee. The remarks made in the cv indicate that there might have been something untoward about the cv when being scrutinized against the criteria.
124. They had agreed that when there was an issue, it would be raised and they would discuss it and if possible, resolve it through consensus, if not, they would raise it with the chairperson of the Interview Committee (IC) who will take it to the committee.
125. It is not only the Employee’s cv which had issues raised during their discussions, the other cv’s as can be seen are number 2, 3, 4, 11, 14, 15, 19, 26 and 28.
126. It is common that adjustment would be made on the CVs, guided by Resolution 11 of 1997 which informs the scoring process. This resolution is part of what the IC is trained on by the resource person. So if it happens that one scorer diverts from the process of scoring, they intervene and an adjustment may be made, either bringing the score up or down to align it with the other two scorers.
127. The criteria for shortlisting (page 5-6 of A) states that –

Para 6 – Criteria for Shortlisting:

1. CVs will be shuffled and numbered.
2. All CVs will be read and scored.
3. CVs must not exceed the number of lines provided –

• Leadership Administration Management and Related Experience : 9 lines
• Organisational Ability and Experience: 8 lines
• Professional Development: Educational Experience, Interest and Insight: 10 lines
• Leadership Community Related: 9 lines
  4. If the lines exceeded: the Secretary will just read the prescribed number of lines.
  5. Additional educators in a similar post will be included in the list of candidates to be interviewed.
  6. If there is a variance of 3 points, the scores will be discussed and changed if necessary. This will apply to all sections. CVs will be read once. However, the Secretary may be asked to re-read a CV for clarity.
  7. ….
  8. Shortlisted candidates must have experience in a Special school.

1. All candidates were subjected to the criteria. The Employee’s CV on para 1.17 has 9 lines, whilst they agreed on 8 lines. The Employee’s information starts next to the heading, and it was not supposed to start on that row. The secretary therefore read the first 8 lines only. On para 1.18, there are 11 lines, whilst the provision is only 10 lines.
2. His role as a trade union representative, was to ensure that all applications are treated in a fair and transparent manner. He denies that he intimidated anyone. Also, he denied that he interfered with the process, as he only did so when necessary.
3. What they did as the union observers was to raise deviations in the meeting, and that was proper, as the intention was to resolve the issues raised when possible.
4. They did the above in accordance with the role of the organised labour as defined in the Circular para 15, which partly reads thus –

15.1….
…
15.4 Union observers may bring any substantive unfairness or procedural irregularities to the attention of the interview committee / resource person for a speedy resolution.
15.5 An observer has the right to intervene in terms of the procedure if he/she deems that there is a deviation from agreed upon procedures. In such an instance an observer must indicate to the Chairperson that he/she wishes to intervene and ensure that the intervention takes place after the interviewee has left the room.
15.6 The observer must first attempt to resolve any concern with the Interview Committee. Should consensus not be reached, the observer may lodge a grievance with the District Grievance Committee.
15.7 …

132. There is nothing wrong in re-reading a CV. The IC does not have site of the Z83 form, so it was impossible for him to see that Shange wrote an incorrect post. They do not see the names of the candidates nor the schools which they are based on.
133. The issue of the Employee exceeding the number of lines in her CV is not the only issue that disadvantaged her, the context is key.
134. Cross examination – They agreed on the criteria and it must be fair and not have any negative effect on any candidate, also, it must be in line with Resolution 11 of 1997.
135. He was not directly involved when raising the discrepancies on the scores, the one who was directly involved is the scorer. When something came up, they discussed it.
136. His role was to observe but if there is a problem, they had to intervene, but not influence the process.
137. The procedure manual states that one does not have to exceed the number of lines provided. As a norm, when there is a heading for a topic, one begin to write below the heading.
138. The comments made regarding the Employee’s CV are correct. The CV was re-read because there was a misunderstanding amongst them, and both unions agreed for the CV to be re-read, and this is not against the criteria. The criteria says the secretary will re-read for clarity.
139. He cannot answer in relation to the three CVs that were sifted out of the original total of 44, because that was done by the 1st Respondent, not the shortlisting committee. He cannot comment on the shortlisting of Shange, who applied for the Principal ship position, not the post, because when the shortlisting is done, they go to the reading for the purposes of shortlisting candidates, not sifting. Shange was not supposed to be shortlisted.
140. On para 1.17 of bundle B, the Employee exceeded the number of lines provided. The same goes for 1.18. The only manner in which the Employee can exceed the number of lines is by writing.
141. When the scorers were scoring, there was a variance of more than 3, hence there were adjustments made. They had agreed beforehand that where there is a scorer who scored above or below the others, then the scorers would have to tell them the reasons for such.
142. The Employee did not adhere to the criteria of writing the CV. They treated all other CVs in the same manner. It is true that Biyela did not adhere to the criteria as she wrote 10 lines instead of 9. Biyela’s CV is no 23 and there was no adjustment.
143. He denies that Biyela’s CV was not treated the same as the Employee’s. In terms of Biyela’s CV, they had a clear understanding of what was read, which is not the case with the Employee’s.
144. As an observer, he did not have any CV at hand, he relied on what the Secretary read.

Mr Sibusiso Ralarala (Ralarala) testified under oath as follows: –

145. He is employed as a teacher at Zweliyazuza Primary School, and he was the chairman of CTU-ATU unions under the NATU trade union at the time of the interviews. He did not know the Employee at the time.
146. The shortlisting process was fair and square. As a union observer, he did not complain about anything. The process was guided by the applicable documents.
147. The Employee did not meet the criteria and like all others who failed to meet the criteria, she was not shortlisted. There was no interference by the unions in the process. The criteria reflected on pages 5-6 is what was agreed upon.
148. All CVs were mixed and then allocated numbers and then scored according to the presentation made of each of them.
149. The Employee’s CV on para 1.17 has 9 lines, because it starts on the same line where the heading is so when one is reading it, he or she needs to start where the writing starts. The Employee was supposed to start below the heading and do so in accordance with lines provided. Writing in more than the required number of lines puts the Employee at an advantage and the others at a disadvantage.
150. On para 1.18, the Employee wrote in 12 lines, exceeding the 10 lines allowed. She also wrote in double lines within one row in some instances. In para 1.19, the provision is for 9 lines and she did not exceed such.
151. When conducting the shortlisting, they start reading on para 1.16, and do not read the Z83 form because the procedure manual makes it clear that they need to start at 1.16. The Z83 is for the sifting process and it is done by the 1st Respondent. As the IC, they do not have to know the names of the candidates and the schools in which they are based.
152. The scoring process is made of three scorers, so if one of them scores such that there are more than three points above the others, then they will apply point 6, which means they may change the scores if necessary.
153. On the adjustments on the Employee’s CV comments, there are headings provided and when one puts elements that belong to a different heading, under another heading, that makes it difficult to score. The Employee put points such as those belonging to the organisational ability under leadership community.
154. Resolution 11 guides the applicants on what and where to write under the different headings. He is not allowed to extend the row and write more information.
155. They did not interfere with the process, they did what they had to do as the observers, when they see irregularities, they had to assist the process in terms of the procedure manual.
156. Cross examination – He believes that interference means doing something that they are not allowed to do, but the procedure manual mandates them to raise an issue there and then to assist the process.
157. The process was conducted fairly. There is no document that indicates where the person must begin when writing the CV. The secretary read the number of lines as stipulated in the CV and when doing so, she stuck to the criteria.
158. He is the one who objected to the Employee’s score being too high. There were no irregularities in the process.

THE EMPLOYER ARGUMENTS

159. It is the evidence of Green that she was participating in these processes for the first time. She was not aware of certain procedures governing the selection processes i.e., that unions have a right to intervene in terms of HRM Circular 35 of 2021. The witness had a vested interest in this process as it is her evidence that when shortlisting was conducted, she had identified the CV of the Employee, even though the candidates’ names were blocked.
160. Shange did not benefit from being shortlisted by the Interview Committee as he was substantively a Deputy Principal. In that regard, he did not attend the interviews. When the Interview Committee is conducting shortlisting, they start reading from item 1.16 to 1.19 of the Employee’s CVs. Therefore, there is no way they could have established that Shange had applied for a wrong post. The due diligence was upon the Committee who conducted sifting.
161. The final score for the Employee’s CV was 22.32 after the adjustments were made. Therefore, even if Shange was not shortlisted, there were other applicants who scored higher than her. In that light, there is no prejudice against her.
162. In Ndlovu v CCMA, the Court held that the onus is on the employee to prove that the decision not to appoint was unfair. Conjecture, perception, unhappiness, or disappointment do not establish unfair conduct. In IMATU obo Visagie v Mogale Municipality, the Court held that if the employee is challenging the process and that decision or conduct by the employer is not established by the employee, then that is the end of the matter.
163. The Employee failed to demonstrate that there was a conduct that denied her a fair opportunity to compete for the post or conduct that was arbitrary or motivated by an unacceptable reason.
164. It is the submission of the 1st Respondent that the Employee failed to make an unfair labour practice case and therefore the application should be dismissed.
165. It is the 1st Respondent’s prayer that the Commissioner dismisses the case.

ANALYSIS OF EVIDENCE AND ARGUMENTS

166. The Labour Appeal Court in case no: JA53/2022, in a matter between the Department of Higher Education and Training as the appellant and PSA obo Lesetja and others delivered on 22 February 2024, the LAC said “A determination as to the fairness of a promotion decision is typically weighted heavily on an evaluation of the process and the justification given for the promotion decision made by the decision-makers. An employer is required to act lawfully and adhere to the objective standards of fairness and the criteria that it has set for promotion, including its own policies, in order to ensure that an eligible employee is provided with a fair opportunity to compete for the post. Conduct that does not allow an employee such a fair opportunity will usually be found to constitute an unfair labour practice. The evaluation of the suitability of a candidate for promotion is required to be assessed fairly, rather than mechanically, with a justifiable element of subjectivity or discretion reserved for the employer.”
     The LAC went further and on para 9 stated “To succeed in an unfair labour practice claim related to promotion usually requires an employee to prove that they were not given a fair opportunity to compete for a post. This may involve evidence that the process was unfair and that despite the employee having the necessary experience, ability and technical qualifications for the post, an unfair appointment decision was taken.”
167. It is common cause that the Employee’s CV was marked down, due to the manner in which she wrote it. In the main, it is the fact that she exceeded the number of lines provided, although she holds the view that the instructions were somewhat vague and did not clearly prohibit writing in more than one sentence in one row. I will deal with this later in the award.
168. With respect to the above, the Employee firstly asserted that there was no criteria at all applied for the shortlisting. She further mentioned that the HRM circular did not specify how to write the CV and where to begin, what font to utilise and whether one can write more than one row in one line, as she did.
169. She conceded that no one amongst the shortlisted candidates started writing next to the heading beside her, but maintained that such did not put her on an advantage because there is no clarity in the circular on where to start writing.
170. She agreed that some of the information on category 1.17 should have been reflected on 1.18 and some on 1.19, not on 1.17. these include attending workshops and seminars and also reaching out to service providers and businesses.
171. Green, the Employee’s witness also stated that the 4th line, the 5th and the 7th lines on para 1.17 should not have been listed under this heading. Green went on and conceded that that the aforementioned are some of the reasons that led to the Employee’s CV being marked down.
172. As aforesaid, it is apparent that the manner in which the Employee completed her CV, more so the number of lines she utilised was very critical on what led to her points being marked down and thus falling out of the shortlisted candidates. When her CV, unbeknown to the scoring team at the time that it belonged to her, was marked down, it followed that her score was reduced from the original 30.33 to 22 and given the proximity of those that were scored below her, she then fell out of the five shortlisted candidates.
173. The issue of whether the Employee met the criteria for shortlisting is a nonstarter, simply because she was taken through the criteria and was then kicked out through the same criteria. For her to have been subjected to the criteria means she met the minimum requirements for the post, together with the other 44 candidates, and it was through the criteria that she was then left out.
174. The foregoing is therefore better amplified through the nitty grittiest of the shortlisting process, which ended up with her points being marked down and thus eliminating her from the shortlisted candidates.
175. Although the Employee was at pains in her persistent denial that there was the criteria, albeit without explaining what she meant by the criteria, par 6 does not only mention that it is about the Criteria for Shortlisting (my emphasis), but it also goes on to mention the maximum number of lines allowed on each category and specifically mentions that they are not to be exceeded. For the purposes of emphasis, the criteria on 6.3 stipulates that –

… CVs must not exceed the number of lines provided –

• Leadership Administration Management and Related Experience : 9 lines
• Organisational Ability and Experience: 8 lines
• Professional Development: Educational Experience, Interest and Insight: 10 lines
• Leadership Community Related: 9 lines

1. The 1st Respondent asked her as to how does she know if the criteria as set out does not qualify to be the criteria, she maintained that there were no criteria, and this without elaborating on what did she mean by criteria.
2. Again, it was pointed out to her that starting from para 6 to 7 is part of the criteria set down by the IC, and she maintained that there was no criteria.
3. The Employee on 1.16 on her CV, there are nine lines. She agrees that if the lines will exceed the number provided, that will mean there will be more information, thus advantaging that candidate when compared to the others.
4. The Employee’s consistent denial that there was no criteria is devoid of any substance whatsoever. The reality is as amplified through the evidence and the documentary evidence submitted, that the shortlisting committee agreed beforehand on the criteria to be followed and that criteria is as indicated above.
5. It is strange that the Employee was the only one, amongst the candidates who started writing next to the headings, as she has conceded to this fact. Also, it ism of significance to note that she acknowledged as well as her witness that some of the issues she wrote in her CV were incorrectly placed in terms of the categories and the headings stipulated.
6. The only reasonable conclusion for the aforementioned is that she wrote these activities in order to hyperbolise her CV so as to give herself an unfair advantage over the other applicants who read the instructions and adhered thereto. I am aware that Biyela has also exceeded the number of lines, albeit in one of the four categories, however, she did not start writing next to the heading at all.
7. When juxtaposed to the Employee, the Employee on 1.16 adhered to the instruction correctly, she did not start next to the heading and she wrote 9 lines as stipulated as the maximum. On 1.17 she started next to the heading and she wrote 9 lines, whereas the maximum allowed is 8. On 1.8, she started next to the heading and wrote 12 lines, when the maximum allowed is 10, and lastly, on 1.19, she started next to the heading and wrote a total of 9 lines, which is the maximum allowed.
8. It is evident therefore that the Employee bears responsibility for her own recklessness when completing her CV, and that has not only caused difficulties in comprehending what exactly she wrote, as the secretary only read until the last line provided for in the criteria, not necessarily her own last line, but also attracted the much scrutiny that it seemingly got from the IC and the union officials in observation, and it is common cause that this led to her being scored down.
9. It is not in dispute that there were also some scores belonging to other candidates which were changed.
10. Green testified that the shortlisting minutes contain the criteria for scoring the candidates, however, she thought CVs were scored unfairly due to the fact that the minutes do not indicate the curriculum needs of the school.
11. Notable in Green’s submission above is that there was the criteria in place to which all candidates were subjected to. Green’s further submission that the scoring was unfairly done due to the fact that the minutes do not indicate the curriculum needs of the school is not an issue to be considered in this dispute.
12. Green’s testimony to the effect that in terms of the criteria, only when there was a variance of 3 or more was the committee allowed to discuss the scores and if necessary, make changes was not disputed, and of course, it stipulated as such by the criteria.
13. Green averred that in addition to the fact that there are no discussions at all reflected in the minutes regarding the changes of the scores, the marking down made on the Employee’s scores was not conducted in terms of paragraph 6 of the criteria because the variance was less than 3.
14. However, during cross examination, Green mentioned that it is correct that repeating information can lead to one being marked down. Further, in addition to the Employee having exceeded the number of lines provided, Green mentioned that the Employee on category 1.7 on the 4th, the 5th and the 7th lines should not have been listed under this heading and agreed that these are some of the reasons that led to the Employee’s CV being marked down.
15. In all fairness, it is perspicuous that the marking down of the Employee’s scores was done rationally, even though there was no variance of more than three. The fact that the said discussions, which emanated from clear elements of how the Employee completed her CV, are not recorded in the minutes cannot justify a finding of unfairness against the 1st Respondent. It is not in dispute that the marking down followed discussions and meeting of minds.
16. The LAC case above states that “An employer is required to act lawfully and adhere to the objective standards of fairness and the criteria that it has set for promotion, including its own policies, in order to ensure that an eligible employee is provided with a fair opportunity to compete for the post.”
17. As I have already opined elsewhere above regarding the Employee having embellished her CV to a degree, which she also conceded to, I am satisfied that as per the case mentioned above, the 1st Respondent adhered to the objective standards of fairness when it marked the Employee’s scores down. The fact that the Employee ended up dropping out of the top five candidates was as a consequence of the fair process aforementioned, to which she has contributed herself.
18. The fact that Biyela, whom is common cause that she also exceeded the number of lines in one category, and yet, the committee did not change her scores, can be attributed to a common error by the 1st Respondent and is thus insufficient to can warrant an interference with the 1st Respondent’s decision to appoint the 2nd Respondent.
19. The foregoing is guided by the case of Noonan v SSSBC and others [2012] 33 ILJ 2597 (LAC) (handed down on 1 June 2012), whewre the LAC said “there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an Employee an opportunity to compete for a post constitutes an unfair labour practice. If the Employee is not denied the opportunity of competing for a post, then the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. 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.”
20. On the issue of the criteria, notwithstanding the persistent denial by the Employee that there was the criteria in place, the fact of the matter is that there was the criteria in place as demonstrated elsewhere above and it is manifest from both Green and the Respondents’ that the criteria was fair and that all the candidates were subjected to the same.
21. Without repeating the finding already made on the marking down made on the Employee’s CV, changing the scores was applied on the Employee as well as a number of others and it was part of the normal process. Green’s personal view that when repeating information under different headings should not have led to marking down the scores of the Employee is a nonstarter, as it is purely that, her opinion and is not based on the criteria which she has defined as having been fair.
22. Ndlovu and Ralarala submitted that the process was free and fair, and they both participated in it until the interviews in which they sat as observers. It is crucial to mention that the two witnesses participated in the process in the interest of ensuring that fairness prevailed as they represented their members, including the Employee. The aforesaid is amplified by Ndlovu when he said his role as a trade union representative was to ensure that all applications are treated in a fair and transparent manner.
23. Ndlovu denied that he intimidated anyone and also, he denied that he interfered with the process and said he did so when necessary. He stated that as union observers, they raised deviations in the meeting, and that was proper as the intention was to resolve the issues raised when possible in accordance with the role of the organised labour as defined in the Circular para 15. Ralarala also attested to the foregoing.
24. The issue of union interference is unsubstantiated. Neither the Employee nor Green disputed that the union observers acted in terms of para 15 of the secular when they raised issues in the committee. It might be that Green felt uncomfortable in the manner in which the union observers raised the issues, but her discomfort cannot on its own be sufficient to justify a finding in this regard.
25. It has to be noted that Green was participating in the process for the first time and therefore everything should have been new to her and she might have come to the committee with her own expectations of the unions.
26. It is manifest from para 15 of the HRM Circular that union observers have the right to intervene in the process when necessary, and the interest thereof is to ensure that the process is run fairly and is not prolonged unnecessarily.
27. On Biyela also having exceeded the number of lines in one category and yet her scores were not changed, Ndlovu under cross examination denied that she was treated differently from the Employee, and said when it came to Biyela’s CV, they had a clear understanding of what was read, which is not the case with the Employee’s.
28. The justification by Ndlovu is plausible in my view. Regard must be had to the fact that the Employee had unnecessarily repeated items in most of the categories, if not all, and she as well as her witness admitted to same. Further, given that the secretary only read up to the maximum number of lines allowed, that would have reasonably added difficulties in comprehending what exactly the Employee was saying in the CV.
29. It is not in dispute that Shange’s CV was incomplete, however, the 1st Respondent’s submission is that Shange was promoted to the position of the Deputy Principal subsequent to an internally conducted exercise, which implies that Shange would have already been verified in terms of his registration with SACE. The 1st Respondent argued that Shange did not attend the interviews, which is not strange because he was already employed as a Deputy Principal in a different school.
30. There is no evidence that had Shange not been included in the shortlist, the Employee would have made the top five. It is common cause that subsequent to the marking down of the Employee’s scores, her final score was 22 and on a cursory glance at the scores of the shortlisted candidates, all five of them have more than 28 scores each, allocated.
31. The Employee has stated in her own evidence that overall, the shortlisted candidates have similar experience and qualifications as her. She stated further that the distinction is that she indicated more activities that them, including the 2nd Respondent.
32. It has to be borne in mind that the issue of the Employee having indicated more activities is central to the manner in which she wrote her CV, which failed to adhere to the set guidelines and ended up costing her the opportunity to be interviewed, in the manner already defined elsewhere above in this award.
33. The above being said, it would therefore be unfair and illogical for the Employee to rely on the fact that she indicated a larger number of projects she undertook than the shortlisted candidates. It is a no brainer that she placed herself at an advantage by doing the said activity, whilst she disregarded the instructions given for what activities need to be stated at each category as well as the number of lines which needed not to be exceeded.
34. All in all, the Employee’s evidence has failed to meet the standard of unfairness as it does not demonstrate that the appointment was arbitrary or motivated by an unacceptable reason.
35. It is therefore my finding that the 1st Respondent has not committed an unfair labour practice relating to promotion as intended in section 186(2) of the LRA. That said, I need not to interfere with the 1st Respondent’s decision to appoint the 2nd Respondent.

AWARD

The matter is dismissed. Vuyiso Ngcengeni
Panelist / Commissioner

The 1st Respondent’s failure to shortlist the Employee for the post of Deputy Principal at the Open Gate Special School was procedurally and substantively fair.