IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD VIA VIRTUAL HEARING
CASE NO.: ELRC1013-25/26KZN
IN THE MATTER BETWEEN:

TSHEPISO NDLOVU APPLICANT

AND

DEPARTMENT OF EDUCATION KWAZULU NATAL 1ST RESPONDENT

NDWANDWE Z 2ND RESPONDENT

ARBITRATION AWARD

ARBITRATOR : P. JAIRAJH

DATE OF AWARD : 20 MARCH 2026

Applicant’s representative : MS S. DLAMINI (SADTU)

1ST Respondent’s representative : MS N. NKOSI

2ND Respondent’s representative : MR N. VILAKAZI (SADTU)

DETAILS OF HEARING AND REPRESENTATION
[1] This matter was scheduled for arbitration hearing on 06 and 23 February 2026 via virtual platform.
[2] Ms S. Dlamini from SADTU represented the applicant (employee), Ms N. Nkosi represented the first respondent (employer) and Mr V. Vilakazi from SADTU represented the second respondent.
[3] The parties, at the conclusion of proceedings, elected to submit written closing arguments and final closing arguments were received on 3 March 2026.

BACKGROUND TO THE DISPUTE
[4] The applicant applied for the promotional post of Departmental Head under Post Number 1031 at Kwamlamuli Primary School which was advertised by the First Respondent in terms of HRM 20 of 2024, however she was unsuccessful.
[5] The applicant was sifted out and not shortlisted. She contended that the principal had validated her application whereafter she submitted same to the Department. Further, she had acted for more than 12 months in the disputed post thus she should have been automatically shortlisted.
[6] The second respondent was appointed to the post in dispute. The applicant challenged the Department’s decision in failing to shortlist her for the post.
[7] The first respondent agreed that the applicant had applied for the post, however her CV was shifted out due to a missing page. The applicant lodged a grievance with the District Grievance Committee (DGC) but they dismissed her grievance because of insufficient evidence.
[8] It was their contention that sifting is done at the Circuit level and there was no reason for anyone to remove any documents; there was no irregularity and the process was done fairly which was also verified by organized labour. Organised labour was present at all stages of this promotion process.
[9] The second respondent submitted that she had applied for the post lawfully, she submitted correct information and did not misrepresent anything.

ISSUE TO BE DECIDED
[10] I have to determine whether the non-shortlisting of the applicant to the post in question by the first respondent constituted an unfair labour practice in terms of section 186(2)(a) of the Labour Relations Act, 66 of 1995, and if so, order the appropriate relief.

SUMMARY OF EVIDENCE AND ARGUMENTS
APPLICANT’S SUBMISSIONS
The salient points of the applicant’s witnesses are recorded below.
TSEPISO NDLOVU (hereinafter referred to as “applicant”)
[11] She submitted her CV to the principal for validation on 7 October 2024.
[12] She acted in the disputed post of Departmental Head for 1 year and 3 months.
[13] She had submitted a comprehensive CV and all the pages were attached. She also made a copy of the CV that she had submitted to the Principal.
[14] She submitted the Z83 together with the EHR7 to the Department.
[15] The principal would not have validated her CV had it not been signed properly, there were missing pages or if there was any false information therein.
Under cross-examination by the first respondent she testified that:
[16] According to her when a document is validated, the principal will check if the document is signed, if the qualifications written in the CV are exactly what the educator is saying and if the CV was fully correct.
[17] When the principal was validating her documents, she had a sit-down session with him. After validation, she went straight to the Circuit Office to submit her CV.
[18] When questioned if she had double checked that all her documents were complete before she handed it in, she stated that when she finished with the principal, she put her CV in the envelope, closed it and never opened it.
[19] Upon being questioned if she had any reason or suspicions as to why anyone would deliberately remove a page from her CV, she averred that there was someone whom she suspected had tampered her CV.
[20] During her grievance process, she and her representative were afforded an opportunity to go to the Circuit Office and check her CV. They found that the document was tampered with as there were many staple holes on it whereas she had just used one staple to staple her documents.
[21] One of her colleagues told her that her sister is working at the District Office and her sister had phoned her and told her that she had her CV in her hand and asked whether she was a good teacher whereafter her colleague replied in the affirmative. Thereafter, her colleague’s sister responded that she will decide whether or not to bring her CV to the school; which means she has the power to remove a page thus her CV will not go to the school for shortlisting.

SIPHESIHLE ELVIS MCHUNU (the Principal)
[22] When the applicant submitted her CV together with the Z83, he verified that her information on the Z83 was correct and then he signed, dated and affixed the school stamp on her Z83 and returned her Z83 and CV to her.
[23] When he validated the applicant’s documents, both her Z83 as well as the compact CV was present, which means all the pages that was supposed to there were there.
[24] He was unsure for how long the applicant had acted in the disputed post; his estimation was 7 months.
[25] According to his understanding, a candidate is automatically short listed if they served for 12 months or more but he could not respond in terms of how sifting worked.
[26] He received a package from the Department including all CV’s and a list of the candidates that were shifted out, which was when he became aware that the applicant was shifted out.
[27] As the resource person there is a secrecy form that they sign when dealing with the shortlisting process hence he could not inform the applicant anything as it would compromise the process.
[28] Upon being questioned that had the applicant’s CV not been shifted out was there anything that stopped her from being shortlisted as she had been acting in the post for more the 12 months, he averred that firstly he was not in agreement with the duration of her acting period which he understood to be less than 12 months and further there were 47 candidates hence he was not in a position to say whether the applicant would have been shortlisted or not.
Under cross-examination by the first respondent, he testified that:
[29] He confirmed that when he had handed the applicant’s CV back to her, it was intact but he was unsure whether her CV was complete when she handed it to the District Office.
[30] The onus was not on the principal but on the applicant to ensure that a complete set of documents was submitted to the Circuit Office.
[31] To his knowledge, at the verification process, the unions are called and notified of those candidates who are shifted out. The unions would have discussions and are aware as to why the CVs are sifted in or out and are corrected if the Department had done the shifting incorrectly.
Under cross-examination by the second respondent, he testified that;
[32] As the resource person for this post, the process was within the prescripts at the school level.

FIRST RESPONDENT’S SUBMISSIONS
FAITH NTOKOZO NGUBO (“NGUBO”)
The salient aspects are recorded below.
[33] She had been employed for 18 years as an Admin Clerk at Msunduzi Circuit Management.
[34] The administration clerks had been trained in the shifting process.
[35] They have a rejection form for all the candidates. They check if all the necessary documents are attached to the application and if the candidate is sifted in or sifted out.
[36] The rejection form shows that the applicant was rejected because the first page of the EHR 7, which is the CV form, was not attached to her application.
[37] After they have shifted out the candidates, they make copies of the rejected candidates’ applications which they keep and then take the originals to the meeting with the unions.
[38] After SADTU and CTU-ATU verify all the sifted-out applications, they have to sign a document that indicates they have seen all the rejected applications and they are in agreement with the said schedule.
[39] She referred to the CMTT Minutes and averred that this was confirmation that the sifting process was done and the unions were invited to the meeting to verify all the applications.
[40] The minutes record that the unions were given access to applications that were sifted out, the unions checked the applications and indicated applications that were wrongly sifted out; those wrongly sifted out were reinstated and a new corrected schedule of applications was printed and given to unions. There was no mention of the applicant’s application being incorrectly sifted out.
Under cross-examination by the second respondent, she testified that:
[41] No applications were incorrectly sifted out in respect of the disputed post.
Under cross-examination by the applicant, she testified that:
[42] The unions are not involved at the scheduling stage of all candidates for a particular post. The administrators do the shifting according to the procedure manual; during this stage the unions are not involved. The unions are only invited to the meeting after the scheduling of all the candidates.
[43] The candidates were notified in writing whether their CV was complete or not.
[44] When questioned if there could have been any foul play from the scheduling stage until after sifting when the unions were invited, she stated that she could not comment as she would not know.

SECOND RESPONDENT’S SUBMISSIONS
The second respondent did not call any witnesses and closed their case.

ANALYSIS OF EVIDENCE AND ARGUMENT
I have considered all the evidence and arguments of the parties and what follows is a brief summary relevant to the dispute at hand and does not reflect all the evidence and arguments considered in deciding this matter.
[45] In terms of the Labour Relations Act, General provisions for arbitration proceedings, section 138(1) reads as follows:
The commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities.
[46] In terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995, unfair labour practice means “ any unfair act or omission that arises between an employer and an employee involving-
(a) unfair conduct by the employer relating to the promotion, demotion, probation [excluding disputes about dismissal for a reason relating to probation] or training of an employee or relating to the provision of benefits to an employee”.
[47] The applicant claims that the first respondent committed an unfair labour practice relating to the post of Departmental Head under Post No. 1031: HRM Circular No. 20 of 2024.
[48] The applicant seeks setting aside of the process from the stage of shortlisting and that her CV be sifted into the shortlist.
[49] The onus is on the applicant not only to prove the existence of an unfair labour practice but to also show that the employer’s conduct was unfair.
[50] In Arries v CCMA & Others (2006) 27 ILJ 2324 the court held at par [16], “that there are limited grounds on which an arbitrator, or a court, may interfere with a discretion which had been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision-making powers inherent in the exercising of a discretion by a party, including the exercise of the discretion, or managerial prerogative, of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised.” The court further held at par [17], that an employee can only succeed in having the exercise of a discretion of an employer interfered with, if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner.
[51] The applicant contended that after her application was validated by the principal, she submitted the completed application to the Circuit Office. She suspected that during the shifting process her CV was tampered with because there were multiple staple holes and the first page of her CV was removed. Further, a colleague allegedly told her that her sister had been in possession of her CV and made certain comments pertaining to her CV.
[52] During the testimony of the applicant, the commissioner cautioned her about leading hearsay evidence and failing to call a witness to corroborate that hearsay evidence.
[53] The applicant’s allegations were based on suspicion and hearsay. The applicant failed to call any witness to collaborate her testimony regarding the allegations made by her colleague about her sister who was employed at the District Office.
[54] In Tshishonga v Minister of Justice and Constitutional Development and Another [2007] 4 BLLR 327 (LC), the court held that; “The failure of a party to call a witness is excusable in certain circumstances, such as when the opposition fails to make out a prima facie case. But an adverse inference must be drawn if a party fails to testify or place evidence of a witness who is available and able to elucidate the facts as this failure leads naturally to the inference that he fears that such evidence will expose facts unfavourable to him or even damage his case. That inference is strengthened if the witnesses have a public duty to testify.”
[55] The applicant argued that she should have been automatically shortlisted because she had acted in the post for 1 year and 3 months which was challenged by her own witness who disputed the duration of her acting period and contended that her acting period was less than 12 months.
[56] Even if the applicant had acted for 12 months, this does not automatically guarantee shortlisting as one would have to still meet the minimum requirements. The applicant failed to produce any documentary evidence or policy provision proving automatic shortlisting if one acted for 12 months.
[57] The principal confirmed that he had validated the applicant’s documents before she submitted it to the District Office and her CV appeared complete at that stage. However, after the validation, the applicant bears the responsibility to ensure her complete application was submitted to the Circuit Office.
[58] Ngubo testified that the applications were sifted according to their standard procedure, the applicant’s application lacked the first page of the EHR7 and a rejection form recorded this reason.
[59] Ngubo further referred to the sifting report meeting minutes and testified that the unions had perused the applications, verified the rejected applications and signed confirmation herein. Importantly, no union had raised an objection that the applicant had been incorrectly sifted out.
[60] The applicant failed to put her version to Ngubo while she was on the stand pertaining to her testimony that the administration clerk at the District Office had removed a page from her CV. Accordingly, I find her allegation here unsubstantiated.
[61] In ABSA Brokers (Pty) Ltd v Moshoana NO & others (2005) 10 BLLR 939 (LAC) the Labour Appeal Court noted that “A failure to cross-examine may, in general, imply an acceptance of the witness’s testimony.” By failing to cross-examine the witness on this specific aspect implies that the Applicant cannot rely on this point.
[62] Clause F of Collective Agreement Number 3 of 2016 ELRC Guidelines: Promotion Arbitrations provides as follows:

31. An employee who alleges that he is a victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities. The employee must prove not only the existence of the labour practice, but also that it is unfair.
    [63] In Department of Justice v CCMA and others (2004) 25 ILJ 248 (LAC) the Court held that an Employee who complains that the Employer’s decision or conduct in not appointing him constitutes an unfair labour practice must first establish the existence of such decision or conduct. If that decision or conduct is not established, that is the end of the matter. If that decision or conduct is proved, the enquiry into whether the conduct was unfair can then follow.
    [64] In Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) the court held at par [79] “A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision, a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.”
    [65] The applicant bears the onus to establish that an unfair labour practice was committed against her and having regard to the totality of the circumstances, I accordingly find that the applicant has failed to discharge the burden of proof on a balance of probabilities that the first respondent had subjected her to unfair labour practice.
    [66] In the circumstances, I accordingly find that the first respondent, the Department of Education KwaZulu Natal, did not commit an act of unfair labour practice against the applicant.

AWARD

[67] The dispute of the applicant, Tsepiso Ndlovu, is dismissed.
[68] There is no order as to costs.

ELRC Commissioner: P. Jairajh