IN THE MATTER BETWEEN:

NAIDOO TAMMY Applicant

And

KWAZULU-NATAL-DOE 1st Respondent

VIRGINIA NOMDLETSHE TSHANGANA 2nd Respondent

ARBITRATION AWARD

Case Number: ELRC79-25/26KZN

Date of Award: 15 August 2025

ELRC Arbitrator: T. Mtolo

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION

1. The arbitration was convened under the auspices of the Education Labour Relations Council (“the Council”) in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995, as amended (“the LRA”). The matter was heard virtually on 29 July 2025, and closing arguments were received on 05 and 06 August 2025 respectively. The Applicant, Ms Tammy Naidoo, was represented by the South African Democratic Teachers Union (SADTU) official, Radebe Zandile The First Respondent, the KwaZulu-Natal Department of Education, was represented by Mr. S. Ngcobo. The Second Respondent, Ms Virginia Nomdletshe Tshanganya, was represented by National Teachers Union ( NATU] official, Zamangwane Khanyile.

ISSUE TO BE DECIDED

2. Whether the Second Respondent met the stipulated requirement of two years’ teaching experience in the commerce stream at secondary school level (grades 8–12), and whether the First Respondent committed an unfair labour practice relating to promotion against the Applicant .

BACKGROUND TO THE DISPUTE

3. The dispute concerns an alleged unfair labour practice relating to promotion in terms of section 186(2)(a) of the LRA. The central issue is whether the appointment of the Second Respondent to Post No. 1823, advertised in HRM Circular 20 of 2024 for the position of Departmental Head: Business, Commerce and Management Studies, met the minimum requirements of the post, and whether the First Respondent actions constituted an unfair labour practice relating to promotion against the Applicant.
4. The Department of Education, KwaZulu-Natal, issued HRM Circular 20 of 2024 advertising Post No. 1823: Departmental Head, Business, Commerce and Management Studies. Both the Applicant, Ms Naidoo, and the Second Respondent, Ms Tshanganya, applied for the post. Both were shortlisted, interviewed, and scored by the Interview Committee. On 4 April 2025, the Second Respondent was appointed to the position. The Applicant challenges the appointment on the grounds that the Second Respondent did not meet the essential eligibility requirement of two years’ teaching experience in commerce at secondary school level. SUMMARY OF EVIDENCE AND ARGUMENTS
5. Witness: Tammy Naidoo (Applicant, Post Level 1 Educator, Greytown Secondary School)

Chief Examination:

6. Tammy Naidoo testified that she is currently employed as a Post Level 1 Educator at Greytown Secondary School in the commerce department. She stated that she has been teaching Business Studies for many years, and at present she teaches Grade 11 and Grade 12 Business Studies. She explained that the reason she applied for Post No. 1823 was because she saw in the bulletin that it was a commerce post. She submitted that the post advertised was specifically for Grades 11 and 12 in the commerce stream.
7. She testified that the incumbent for the post was required to possess subjects in the commerce stream, namely Business Studies, Economics, and Accounting, and further that the incumbent must have at least two years’ experience in teaching these subjects at secondary level. She stated that she has taught Business Studies at Grade 10 and Grade 11 since 2014, and at present she teaches Grade 11 and 12 Business Studies. She referred to Bundle B, page 1, to show that Business Studies falls within the secondary phase, which comprises Grades 10, 11, and 12. She contrasted this with the senior phase, which consists of Grades 7–9, where EMS is taught.
8. She read out the CV of the second respondent at Bundle B, page 16, and stated that the second respondent did not qualify as she had not taught any of the commerce subjects at secondary level, namely Economics, Accounting, and Business Studies. She emphasised that EMS is in the senior phase and not in the secondary phase, and testified that the second respondent had taught Life Sciences and Natural Sciences, and only started teaching EMS in the senior phase after her appointment. She explained that EMS is suited to the primary or senior phase but not the secondary phase.
9. Naidoo testified that she applied because she had the relevant subjects in the secondary phase, and therefore qualified. She explained that the grouping of “Business, Commerce, and Management Studies” clearly includes the subjects she teaches and has experience in.
10. During cross-examination, Naidoo confirmed that EMS falls under the senior phase. She acknowledged that the advertisement contained categories such as “Commerce, Business Studies, and Management Studies.” She referred to Bundle C, which she testified categorises the post as “Type: Sec” and also to HRM Circular provisions which distinguish between phases.
11. She maintained her view that EMS does not fall in the secondary phase and reiterated that she possessed the correct qualifications and experience for the post.
12. In re-examination, Naidoo testified that EMS is an introduction to other commerce subjects in the senior phase, but it is not in the secondary phase. She stated that EMS is offered at schools where commerce subjects may not be available, and it functions only as an introduction to commerce concepts. She confirmed that she had closed her case.
    Witness: Virginia Nomdletshe Tshanganya (Second Respondent, Post Level 2 Educator, Greytown Secondary School)
13. Tshanganya testified that she is employed at Greytown Secondary School, where she has worked for approximately 17 to 18 years. She confirmed that she knows Ms. Naidoo, the applicant, as her colleague. Referring to Bundle B, page 16, she stated that she has taught Economic and Management Sciences (EMS) at a previous school for more than nine years and that she has 29 years of total teaching experience. She submitted that EMS forms part of the Commerce stream. She emphasised that the advertisement for the post did not specify that it was strictly for the Secondary Phase; it merely indicated that it was a post within a secondary school.
14. She explained that departmental heads exist at her school for Grades 8–12, and not exclusively for Grades 10–12. She testified that she holds a National Certificate in Commerce, with Accounting as her major. As a senior teacher, she has also performed the duties of departmental head at her school, and the institution offers several commercial subjects. She submitted that, although she did not list Accounting on her CV due to space limitations, she raised this qualification during her interview.
15. Tshanganya stated that at her school the secondary level extends from Grades 8 to 12. While Grades 7–9 are classified as the Senior Phase, she described Grade 7 as a “twin sister” to Grades 8 and 9. She explained that she included her teaching of Grade 7 in her application because of its close connection to Grade 8. She asserted that the advertisement did not specify that the post was limited to the Further Education and Training (FET) Phase, and instead broadly stated “secondary,” which in her understanding included Grade 7. Referring to Bundle C, she indicated that the term “secondary” includes Grades 8–12. Having taught EMS in Grades 7 and 8, she submitted that she qualified, as management studies were also included in the post advertisement and EMS fell within that category. She confirmed that the post was advertised for a Post Level 2 educator.
16. Under cross-examination, she reiterated that she has 28 years of teaching experience, of which nine years were in commerce subjects. These included Accounting, Business Studies and Commerce. She emphasised that she had taught EMS for nine years and maintained that EMS is part of the Commerce stream. She agreed that EMS is taught in the FET band but insisted that it also falls under management studies. She testified that under paragraph 4.2.2.2 of the circular she qualified to apply for a secondary post in commerce, having taught EMS for more than two years.
17. She explained that her teaching background included Life Sciences and Natural Sciences, depending on the needs of the school. She taught at Mowbray Primary School (Grades 6 and 7) and Obesfelde Combined School (Grade 8) before transferring to Greytown Secondary. She acknowledged that her educator profile emphasised science teaching, but explained that this was due to the needs of the school rather than the full extent of her teaching history. She admitted that she had not mentioned Obesfelde in her educator profile, but insisted that she had in fact taught there for a year, and asked that the Department conduct a full investigation into the matter.
18. She confirmed that she taught EMS in Grade 7 from 1996 to 2007, and after she taught Grade 8 for two years (January 2007 to February 2008). She argued that EMS was part of the requirements of the post because it introduced learners to commerce. She also highlighted her qualification in Accounting, although she admitted that Accounting was not specified as a requirement in the advertisement.
19. She testified that as a senior teacher she had acted as a grade controller in Grades 8 and 9, managing nine subjects and assisting in the placement of learners into Grade 10 commerce streams. She denied that performing the duties of a grade controller meant that she automatically qualified as a departmental head, but explained that she had indeed carried out leadership duties within the commerce subjects.
20. In re-examination, she maintained that EMS forms part of the secondary school offering and serves as the “door” to Grades 10–12 commerce subjects. She emphasised that her school offered EMS and that the bulletin did not restrict applicants to a single phase. She concluded that she had nine years’ experience in EMS and therefore qualified for the post. Witness: Ronnie Sizwe Manikela (Departmental Head: Mathematics and Sciences, Greytown Secondary School; Interview Committee Member)
21. Manikela testified that he is the Head of Department for Mathematics and Sciences at Greytown Secondary School, overseeing approximately 10–12 educators, including the second respondent. He explained that he was also a panel member on the interview committee for the disputed post.
22. He stated that three candidates from Greytown Secondary School applied, namely Mothala, Tshanganya (the second respondent), and Naidoo (the applicant), along with two candidates from outside. In total, five candidates were shortlisted. The committee was inducted by a departmental official, Mr. Monnsamy, who introduced them to their roles and portfolios, including the scorers and union representatives. The applicants’ CVs were then reviewed, read out by the secretary, and scored according to predetermined criteria drawn from the bulletin.
23. He explained that the committee used Resolution 11 to formulate the criteria and that questions ranged from 1.1 to 1.19. Each scorer independently awarded marks to applicants. He testified that the CVs were not checked for minimum qualifications as such; instead, the secretary read them aloud and the panel assessed their suitability for the post. He confirmed that in Bundle B, page 17, the second respondent’s CV indicated that she had EMS teaching experience. Because EMS was listed under Management Studies, the panel concluded that she qualified. He also noted that EMS could be referred to interchangeably as Economic Management Sciences or Economic Management Studies.
24. Manikela elaborated that in educational terminology, Foundation Phase is Grades 1–3, Intermediate is Grades 4–6, Senior Phase (lower secondary) is Grades 7–9, and the FET Phase (upper secondary) is Grades 10–12. He explained that Greytown Secondary includes both lower and upper secondary, and that in his understanding, the word “secondary” in the bulletin encompassed both phases.
25. He acknowledged that in his school they do not have Grade 7, but argued that in disadvantaged schools, where Grade 7 is present, educators with Grade 7 teaching experience could qualify for secondary posts. He confirmed that the applicant, Naidoo, was also qualified in terms of her experience and subjects taught.
26. Under cross-examination, he stated that he had been employed at Greytown Secondary for 18 years and was promoted from Post Level 1 to Departmental Head. He was also elected by the SGB to sit on the panel. He confirmed that he supervised the second respondent but not the applicant. He admitted that the sifting process had already been done by the Department, so the panel worked with pre-qualified candidates. He insisted that EMS was part of the commerce grouping and argued that a teacher of EMS in the Senior Phase could apply for the secondary post, as EMS introduced learners to accounting, economics, and business studies in FET.
27. He denied that the panel had shortlisted an unqualified candidate, insisting that the second respondent’s experience, as reflected on her CV, was sufficient. He maintained that the CV demonstrated EMS teaching from 1997 to 2006 and again at Mowbray, which the panel accepted as qualifying experience.
28. In re-examination, he stressed that EMS is an integrated subject introducing learners to the commerce subjects offered in FET. He submitted that this justified the panel’s decision to regard the second respondent as a qualifying candidate for the commerce post.
29. Witness: Zitha Buthelezi (Circuit Manager, Department of Education)
30. Buthelezi testified that he is employed as a Circuit Manager within the Department of Education, overseeing the recruitment and appointment processes in his circuit. He explained that his role includes monitoring interview processes, ensuring compliance with departmental circulars, and advising school governing bodies on procedural and substantive fairness during recruitment. He confirmed that he was involved in the process relating to Post No. 1823, Departmental Head: Business, Commerce and Maths Studies, at Greytown Secondary School.
31. He testified that he monitored the shortlisting and interview proceedings, and confirmed that the panel had been properly constituted. He indicated that the panel comprised the principal, SGB members, union representatives, and elected educators as required by departmental policy. He further testified that, before the commencement of the process, the panel was inducted on the relevant provisions of HRM Circular 20 of 2024.
32. Buthelezi explained that the Department is responsible for sifting applications before they reach the panel. He stated that the Department confirms whether candidates meet the minimum requirements as stipulated in the bulletin. He submitted that once the applications are sifted and forwarded, the panel’s role is to evaluate the suitability of the candidates in terms of merit, experience, and performance in the interviews.
33. He testified that the second respondent’s CV reflected that she had taught Economic and Management Sciences (EMS) for more than two years, which in the Department’s interpretation fell within the Commerce stream. He explained that EMS is regarded as a bridging subject to commerce disciplines, such as Accounting, Business Studies and Economics in the FET Phase. Based on this understanding, the Department accepted the second respondent as having satisfied the minimum requirements.
34. Under cross-examination, Buthelezi confirmed that the advertisement for the post required teaching experience in commerce subjects at a secondary school. He conceded that the bulletin did not expressly list EMS under commerce subjects but maintained that the Department regarded EMS as part of the commerce stream because it introduces learners to commerce concepts in Grades 7–9. He explained that in disadvantaged schools EMS often functions as the only commerce subject until learners reach FET, and therefore educators with EMS experience are not excluded from applying for commerce-related posts.
35. He further testified that the Department’s responsibility is not to micro-manage the content of CVs, but rather to determine whether, on the face of the documents, the minimum requirements are met. He denied that the panel had acted irregularly in shortlisting the second respondent, arguing that the Department had already sifted and approved her application. He explained that the panel had therefore been entitled to proceed with all the candidates referred to them.
36. In re-examination, Buthelezi reiterated that EMS is aligned with commerce subjects and that the Department consistently accepts EMS teaching experience when assessing applications for commerce posts. He submitted that the Department’s interpretation of the circular is that commerce streams include EMS, Accounting, Business Studies, and Economics. He concluded that the second respondent’s application was validly considered and that the process complied with departmental policy and the relevant HRM circular.

ANALYSIS OF EVIDENCE AND ARGUMENT

37. This is an unfair labour practice dispute relating to promotion under section 186(2)(a) of the Labour Relations Act 66 of 1995 (the “LRA”). The applicant alleges that the appointment of the second respondent to Post No. 1823 (HRM 20 of 2024) was unfair because the minimum eligibility criteria were not met.
38. The matter properly came to arbitration in terms of s191(5)(a)(iv) of the LRA under the auspices of the ELRC. In conducting the proceedings, I have exercised the powers in s138(1) (to determine the dispute fairly and quickly with the minimum of legal formalities) and I issue this award with reasons in terms of s138(7).
39. In promotion disputes, the employee must show, on a balance of probabilities, that the employer’s conduct constituted an unfair labour practice. Once a prima facie case of unfairness is established ie: by showing the appointed person did not meet advertised minima, the employer must provide a rational, lawful and fair justification for its decision.
40. HRM Circular 20 of 2024. Clause 4.2.2.2 Secondary Posts – Grouped Learning Areas) requires that “an applicant must have at least two years’ teaching experience in at least one subject from the relevant learning field” (Business, Commerce and Management Studies). The post advert also categorises the post as Type: SEC (secondary), which corresponds to Grades 8–12.
41. The second respondent, as recorded in Bundle A, stated that she taught at Mowbray from 1996 until 2007, during which period she was responsible for Economic and Management Sciences (EMS) in Grades 6 and 7. She further indicated that from January 2007 to February 2008, she was employed at Obesfelde, where she taught EMS at Grade 8 level. The latter school became a point of contention, as it was not reflected in the Educator Profile of the second respondent. The determination of whether or not the second respondent indeed taught at Obesfelde does not fall to be decided within the scope of this arbitration award.
    Witness testimony: Applicant (Ms Naidoo).
42. She submitted that she has taught Business Studies in Grades 10–12 for many years and that EMS lies in the Senior Phase, not secondary. Her submissions align with the phase structure, the SEC post type and clause 4.2.2.2’s minimum. She tendered concrete dates and grades (Business Studies since 2014; currently Grades 11–12). Her evidence is internally consistent and corroborated by the bundles referred to in Part 1.
43. Her testimony was crisp , and coherent. Her submissions are accepted in that she met and exceeded, the two year secondary commerce requirement. She further tendered evidence that the second respondent did not meet the minimum requirement of the post in as so far as the two years minimum experience requirement in Commerce in “SEC”, and in accordance with clause 4.2.2.2 of HRM circular 20/2024. She tendered concrete dates and grades, her evidence was consistent and corroborated by the circular and the second respondent’s curriculum vitae.

Second Respondent (Ms Tshanganya).

44. She submitted that EMS is part of commerce and that the two year minimum is a guideline the employer could relax, with merit factors (interview performance, leadership, qualifications) compensating for any shortfall. She further relied on Grade 7–8 EMS as qualifying experience and characterised Grade 7 as a “twin sister” of Grade 8. The mandatory nature of clause 4.2.2.2 defeats the “relaxation” argument. Her reliance on Grade 7 EMS conflates Senior Phase with Secondary. Crucially, her own timeline places her secondary EMS at about one year, which is below the two year threshold. Her submissions are rejected as they are misconstrued, her closing paragraphs (12–13) are detrimental to her case because they implicitly admit the shortfall and seek a discretionary waiver the circular does not permit. Consistency with the advertisement and rational application of criteria are required; panels may not invent or relax thresholds ad hoc (Noonan v SSSBC & Others). Also emphasises that deviation from prescripts without lawful authority is a reviewable irregularity and can render a promotion decision unfair.

Mr Ronnie Sizwe Manikela (Departmental Head: Maths & Sciences; IC member).

45. He explained the panel’s process, reliance on CV readings and its understanding that EMS = Economic Management Sciences/Studies within “management studies”. He fairly conceded that EMS is taught in Grades 7–9 and that the panel did not interrogate minimum phase specific experience as an eligibility gate. His submission that EMS qualifies, without distinguishing Senior from Secondary, conflicts with the circular’s SEC categorisation and clause 4.2.2.2. The concession that the committee did not check the two year secondary minimum requirement,, coupled with his supervision of the second respondent in Sciences, proves a misapplication of the prescript. Labour Appeal Court authority confirms that: Appointing a person who does not meet minimum advertised requirements is unfair in (PSA obo Gouvea v PSCBC & Others).
46. The justification given by Mr Manikela that the second respondent was appointed due to EMS being a special subject that runs from Primary and Secondary in essence asserting that an automatic qualification to Secondary phase posts if taught EMS in grade 7 is rejected, to the extent that they justify the appointment; yet confirm a procedural and substantive misdirection, this speciality clause for EMS is not based on any prescripts.

Mr Zitha Buthelezi (Circuit Manager).

47. He set out the phase structure (R–3, 4–6, 7–9, 10–12) and the school typologies (primary vs secondary). While at one point he described departmental practice of accepting EMS as part of commerce, he also recognised that Grade 7 is primary/Senior Phase and that secondary eligibility must be measured in Grades 8–12 within the relevant stream. Applying that framework to the CVs, the second respondent’s secondary EMS amounted to about one year, whereas the applicant’s FET Business Studies experience comfortably exceeds two years and exceeded to the fact that the applicant’s c.v is more qualified for the post or meets the minimum requirements when comparing the experience of both cvs. The respondents’ own witness made these assertions and comparisons without being fully briefed on the merits of the matter and was not part of the process and was only requested to testify in regards to certain interpretations of the circular.
48. Furthermore, his evidence on phases and the quantification of the second respondent’s secondary experience supports the applicant’s case. I accept his assertions insofar as they confirm the binding prescript, phase demarcation and the shortfall in the second respondent’s secondary experience.
49. The circular uses the word “must” in clause 4.2.2.2. In legal drafting, “must” denotes a mandatory requirement, not a guideline. On a plain reading, the 2 year secondary-stream experience is an eligibility threshold that must be met before comparative merits (interview performance, leadership potential, etc.) may be considered. The second respondent’s contention that the employer could “relax” this requirement is not supported by the circular and is inconsistent with the circular cited above. It is, therefore, rejected. The 2 year requirement is peremptory; the employer had no discretion to waive it absent explicit authority in the prescript or advertisement.
50. The uncontested structural framework is that Senior Phase = Grades 7–9 and Secondary/FET = Grades 10–12 (the SEC post category aligns with Grades 8–12, i.e., secondary schooling). Even accepting that EMS conceptually belongs to the commerce stream, Grade 7 is primary/senior phase, not secondary. Only secondary teaching experience in the relevant learning field counts toward the two-year minimum for a SEC post.
51. The second respondent’s own version shows the overwhelming majority of her EMS experience is Grade 7; the record identifies approximately one year of Grade 8 EMS. On her own account, she does not reach two years of secondary experience in the commerce stream. It is my finding that EMS taught at Grade 7 does not count toward the secondary minimum. The second respondent’s qualifying (secondary) time is short of two years.
52. The second respondent’s closing arguments (par 12–13): “The post required that the candidate must have at least two years’ experience in the business, commerce and management studies stream at a secondary level. This requirement it is submitted it is not peremptory in nature and therefore the employer had a discretion whether to lax it or not.”
53. While the 2-year minimum experience requirement is an important guideline, it must be interpreted in context and not as absolute or inflexible rule. The vacancy was advertised, applicants were assessed, and the selection process was guided not only by years of experience, but overall merit, interview performance, leadership potential and relevant qualifications effect on the merits”
54. The contention that the two year secondary minimum is “not peremptory” and may be relaxed is contrary to the prescript’s wording (“must”) and case law that bars appointing candidates who do not meet minimum advertised requirements. These paragraphs are, therefore, a detriment to the second respondent’s case: they operate as an admission that the stipulated minimum was not met, accompanied by an invitation to exercise a discretion that does not exist under the circular.
55. The argument was advanced further that it was the employers prerogative to appoint second respondent and deviation hinted on par 12 and 13, these arguments were not relentlessly pursued by the first respondent and second respondent during evidence in chief nor any reasons proffered for such a deviation from its own circular and criteria contained therein, therefore it is a baseless argument to raise if evidence was not led during arbitration proper.
56. On the balance of probabilities, the applicant proved that: The second respondent did not meet the minimum of two years’ secondary experience in the commerce stream; and the panel misapplied clause 4.2.2.2 by treating Senior Phase (Grade 7) EMS as interchangeable with Secondary experience, and by failing to police the eligibility threshold before considering comparative merits. This renders the appointment substantively and procedurally unfair under s186(2)(a).
57. Labour Appeal Court authority confirms that: Appointing a person who does not meet minimum advertised requirements is unfair (e.g., PSA obo Gouvea v PSCBC & Others).
58. The two year secondary experience requirement in HRM Circular 20 of 2024, clause 4.2.2.2, is mandatory. The second respondent did not possess two years’ secondary (Grades 8–12) experience in the Business, Commerce and Management Studies stream.
59. The first respondent’s panel misapplied the circular by conflating Senior Phase EMS with secondary experience and by failing to enforce the eligibility threshold.
60. The applicant established an existence of an unfair labour practice relating to promotion in terms of s186(2)(a).
61. (In terms of s193(4) of the LRA, the arbitrator may make any just and equitable relief, which can include setting aside a decision and directing that the process be re-run.

Award

62. The appointment of Ms Virginia. Tshanganya to Post No. 1823 (HRM 20 of 2024): Departmental Head – Business, Commerce and Management Studies is substantively and procedurally unfair and is hereby set aside.
63. The Department of Education – KwaZulu Natal is directed to re do the shortlisting and interview process for Post No. 1823 within 60 (sixty) days of the date of this award, strictly applying HRM Circular 20 of 2024.
64. The re run must be conducted fairly, with an independent panel, excluding all the former panel members.
65. No order as to costs.

ELRC Arbitrator:

Date: 15 August 2025