IN THE ELRC ARBITRATION
BETWEEN:

NAPTOSA obo N.D MAHARAJ
“the Applicant”
and
DEPARTMENT OF EDUCATION – KWAZULU-NATAL “Respondent”
ARBITRATION AWARD

Case Number: ELRC517-24/25KZN

Last date of arbitration: 23 May 2025

Date of submission of closing arguments: 3 June 2025

Date of award: 13 June 2025

ELAINE MOODLIAR
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
The General Secretary
ELRC Building
Private Bag X126
Centurion
0046
Gauteng
RSA

Tel: 012 663 7446
Fax: 012 643 1601
E-mail: cindyfoca@elrc.org.za
Website: www.elrc.org.za

Physical Address
ELRC Building
261 West Avenue
0046
RSA

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration commenced on 13 March 2025, 14 March 205, 10 April 2025, 22 May 2025, and the presentation of evidence was finalised on 23 May 2025. Both parties thereafter requested and were granted permission to submit written closing arguments by no later than 3 June 2025.
2. The arbitration was held at the Durban Teachers Centre in Durban. The Applicant was represented by Ms I Dhanook (NAPTOSA Official). The Respondent, the KwaZulu-Natal Department of Education (the Department), was represented by Mr Itumeleng Makhoee, employed by the Department as a Labour Relations Director.
3. The second respondent, Ms Seema Sukku was not present as she was removed from the dispute by the Applicant.
4. The parties submitted documentary evidence. The respondent’s documents were marked bundle A, and the Applicant’s documents were marked bundle B.
5. The proceedings were digitally and manually recorded.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

6. The arbitration is in respect of a referral by the Applicant of an alleged unfair labour practice as provided for in section 186 (2) (a) of the Labour Relations Act 66 of 1995 (LRA) concerning the Department’s failure to promote the Applicant.
7. I am required to decide whether the respondent’s refusal to sift the Applicant’s application resulted in her not being promoted. Whether this constituted an act of unfair labour practice.
8. The Applicant seeks compensation which must be calculated at the difference in notch between the applicant’s current notch and her notch had she obtained the post up to the age of 60.

BACKGROUND

9. There hereunder facts were common cause.
10. The applicant is employed as an education therapist at the RP Moodley Special School (a LSEN School) in the Pinetown district. She applied for the position of Deputy Principal (Post no. 572), which was advertised in the promotion bulletin, HRM 20 of 2023, dated 22 June 2023.
11. The Applicant‘s Curriculum Vitae (CV) was not part of the shortlisting process. Her application was initially sifted in. After it was discovered during the shortlisting process that the Applicant was not a qualified teacher, the process was stopped. All applications were returned to the circuit. The process restarted.
12. When the applications returned to the Interview Committee for shortlisting, the Applicant’s application was removed by the sifting committee.
13. It was common cause that the requirements for the post of Deputy Principal as per the HRM 20 of 2023 (as contained in page 19 of the Respondent’s documents) were as follows:
    Educational Qualifications:
    • Recognised 3 or 4 years qualification which includes a Professional Teaching Qualification.
    Statutory requirements:
    • Registration with SACE as a Professional Educator
    Experience and eligibility:
    • Advanced knowledge of teaching as provided for in the Professional Qualification;
    • Good management skills;
    • Leadership
    • Good teaching and assessment skills;
    • Good extra and co-curricular skills;
    • Good people management;
    • Good administrative skills;
    • Good communication skills; and
    • 5 years of actual teaching experience
14. In terms of the above-stated requirements for the post, it was further common cause that the Applicant did not possess a Professional Teaching Qualification. She also did not have five (5) years of actual teaching experience.
15. The Applicant’s case was that she was eligible to apply for the post. She is defined as an Educator and is registered with SACE. The Respondent acted inconsistently as it previously appointed Therapists (without a Professional Teaching Qualification) to Principal positions at LSEN Schools. The Applicant was not allowed to compete for the post. This constitutes an unfair labour practice.
16. The respondent’s case was that the Applicant is a Therapist. She does not possess a Professional Teaching Qualification and was therefore not eligible to apply for the post of Deputy Principal. If therapists were appointed as Principals, these appointments were irregular and should not have occurred.

SUMMARY OF EVIDENCE AND ARGUMENTS

17. The Applicant and three other witnesses, namely, Mr Anand Sirkissoon, Ms Marthie Combrinck, and Ms Ishara Dhanook, testified in support of the Applicant’s case.
18. Ms Seema Sukku, Mr M Lulchund, Ms H Nonhlanhla Msomi, and Mr P. H Nkosi testified in support of the Respondent’s case.
19. The evidence presented forms part of the record, and as such, I will not burden this award with verbatim submissions. The relevant submissions relating to the issues in dispute will be captured in the survey below.
    THE APPLICANT’S EVIDENCE
20. The Applicant, Ms Nishla Devi Maharaj, testified that she did not possess a teaching qualification. She is registered with SACE. She works as a Therapist. She possesses a Bachelor’s degree in speech and hearing therapy.
21. The Applicant stated she was aware of Therapists who did not possess a Professional Teaching Qualification who were appointed to Principal positions at other LSEN schools. She mentioned Ms K. Chetty from the Kenmont School, who is currently Deputy Principal at the Kenmont School, also an LSEN school. Ms Chetty was initially not considered for this post. She was only appointed after she lodged a grievance. The outcome of which is contained on page 18 of the Applicant’s bundle. The outcome indicates that the requirements for LSEN schools are different from those of mainstream schools.
22. She submitted that the Respondent was not consistent in applying the relevant qualifications when appointing. Her application was sifted out because she did not possess a Teaching Qualification, yet it appointed Ms Chetty without one.
23. She referred to the Personnel Administrative Measures (PAM) contained in page 12 of the Applicant’s bundle B, which states under B3.2.1.3 that:

“Notwithstanding the requirements set out in paragraphs B.3.2.1.1 and B.3.2.1.2, a person appointed to any of the following posts, is not required to be a qualified educator but must comply with the relevant requirements for appointment as set out in the document, “Criteria for the Evaluation and Recognition of Qualifications for Employment in Education”.

24. She read out B.3.2.1.3 (u), which listed Speech Therapists as one of the categories that did not require a teaching qualification.
25. She also referred to B.3.2.1.7, which stated that:

“‘A person who qualifies for appointment in a permanent capacity in terms of paragraphs b.3.2.1.1 to B.3.2.1.8 may also be promoted to an appropriate post on a higher post level.”

26. Based on the above, she believed that she ought to have been considered and shortlisted for the post
27. She stated that had she not been sifted out, she would have been appointed as she knew the demands of the post, had served at the school for 20 years, and had a very good relationship with the community; she felt that she had more to offer than the selected candidate. Her knowledge of the running of the school, her therapy background, as well as her commitment to the learners, would have all rendered her an ideal candidate for the post.
28. She should have been given a fair opportunity for the position. Her CV should have been scored and ranked together with the rest of the applications. She has been deprived of this opportunity due to her application being sifted out.
29. Under cross-examination, she confirmed that she was not a Teacher. She agreed that Therapists are defined as Educators in legislation for purposes of the Department’s policies applying to them.
30. She confirmed that she submitted a motivation with her application. She further agreed that the HRM Circular did not state that applications must be motivated.
31. She could not comment on the process that the CVs would be returned to the circuit if an error in sifting was detected.
32. When referred to the Circular and the qualification requirements for the Deputy Principal post, she confirmed that she did not meet the criteria insofar as having a Teaching Qualification.
33. When referred to the application form (page 6 of the Respondent’s bundle), she confirmed that she ticked Level 1 Educator as her current position on her application. She conceded that she was not a Level 1 Educator. Since the form did not provide for a Therapist, this was the only option she could have chosen.
34. It was then put to her that the reason why the form did not provide for Therapists is because of the requirements for the post. It was further put to her that if the post invited applicants without a teaching qualification, then the form would have had a space for Therapists and all other job titles. The applicant could not comment in this regard.
35. It was put to her that she misinterpreted the Circular. Particularly, Item 4.1, which she relied on, pertained to the shortlisting criteria for LSEN schools and not the requirements of the post. She agreed that there was a difference between shortlisting and sifting.
36. It was further put to her that she also misinterpreted B.3.2.1.3 of the PAM. This paragraph states that Therapists appointed at schools do not require a Teaching Qualification. She was referred to the word “the following posts”. It was put to her that the paragraph does not say that Therapists may apply for a Principal post without meeting the requirement of a Teaching Qualification. The applicant maintained that she interpreted that Therapists could apply for posts without a Teaching Qualification.
    Mr Anand Sirkissoon
37. Mr Sirkissoon testified that he was the Principal at the R.P. Moodley school. He has since retired. He was part of the Interview Committee and was present when the Applicant’s CV was queried and when all the applications were returned to the Circuit.
38. He knows the applicant very well and stated that her CV did reach the committee, but on instruction from the resource person, it was sifted out.
39. He stated that had she been interviewed, she would have been selected as she knew the duties of a Deputy Principal and was a good worker. He believed that the applicant was eligible to apply and should not have been excluded.

Ms Marthie Combrinck

40. Ms Combrinck testified that she is currently the Principal at Thuthukani Special School in Empangeni. This is a LSEN. She is An Occupational Therapist without a Professional Teaching Qualification. She was first appointed as Departmental Head, Deputy Principal, and then School Principal.
41. Her application was never sifted out; she was shortlisted by the Interview Committee, interviewed, and then appointed. She referred to her application form and her letter of appointment in the absence of a professional teaching qualification.
42. Ms Combrinck also confirmed that the Deputy Principal of the school is also a Therapist and does not have a professional teaching qualification. She is further aware of other schools in her district where Therapists occupy management positions. She made mention of the Zululand Remedial School.
43. Under cross-examination, she could not say the circumstances under which she was appointed. She further stated that the Speech Therapists in her school were part of the staff establishment.

Ms Ishara Dhanook

44. Ms Dhanook, the Applicant’s representative, testified in respect of the appointment of Ms K Chetty as Principal of Kenmont School.
45. She stated that she represented Ms Chetty in her grievance hearing. She referred to Page 18 of the Applicant’s bundle, which is the grievance committee decision in Ms Chetty’s promotion grievance. Her signature is at the bottom of the page as the ‘union representative on behalf of the grievant’.
46. Ms Dhanook read out the findings of the Chairperson of the Grievance Committee as follows:

“ HRM 36 of 2019 item 4 outlines the requirements for 2 types of schools, Normal Public schools and LSEN schools. It is quite correct that if the employee applied for a mainstream school her CV would be excluded as she does not have the requisite teaching qualification, Kenmont however, is an LSEN school, the employee meets the requirements to be considered for the post at this school as outlined in 4.1 of the said circular.”

47. The recommendation of the Grievance Committee was:

“The Grievance is upheld. The Interview committee is to reconvene and score the CV of Ms Chetty, should the CV score high enough to make the shortlist, the interview process should be redone with her being included.”

48. This finding was dated 2020; there is no new legislation or policy since this date that states that a therapist cannot apply for a promotion post. The grievance outcome is on the letterhead of the same employer that employs the Applicant. The outcome of the Applicant’s grievance was different to that of Ms Chetty.
49. Ms Dhanook stated that rulings made should be consistent across all districts as they are guided by policy, and not the opinion of Chairpersons.

THE RESPONDENT’S EVIDENCE

Ms Seema Sukku

50. Ms Sukku testified that she was the successful incumbent and is currently the Deputy Principal at the R.P. Moodley school. At the time of her appointment, she possessed a Higher Education Diploma and Honours Bachelor of Education. The Applicant only possessed the Degree of Bachelor of Speech and Hearing Therapy. She had eight years of experience in mainstream teaching. She served as the Head of Department for seven years. She referred to her application on pages 32 to 36 of bundle A.
51. The Applicant is a Speech Therapist at the school.
52. Under cross-examination, she confirmed that, judging from her qualifications, years of experience, and her involvement in curriculum for special needs schools, she was the best candidate for the post.
53. She also confirmed that by looking at CVs, it was possible to choose candidates to be shortlisted. Schools are usually given the best CVs to choose from. The interview process was where a final decision would be made after meeting the candidates.

Mr Maanchand Lalchund

54. Mr Lalchund testified that he is the Principal at the R.P. Moodley School. He testified about the Post-Provisioning Norms Certificate (PPN Certificate). He stated that the PPN is used to determine how many Educators are allocated to a school. He stated that in the R.P. Moodley school, there is one Principal, two Deputies, four Departmental Heads, and sixteen PL1 Educators.
55. The Applicant was not included therein. Not only her, but other Therapists were also not included in the PPN. The reason for this is that therapists do not form part of the teaching component of the school. Therapists are not employed under the provisions of the Employment of Educators Act.
56. He added that Therapists are defined as Educators only for Legislation and because they work within the schools. Their career paths, salary grading, and levels are different from those of Educators / Teachers. Therapists do not teach; they only provide specialized support to learners.
57. He was not aware if Therapists were part of the Persal system as he had not seen a salary advice of a Therapist.

Ms HyaCynthia Nonhlanhla Msomi

58. Ms Msomi testified that she was the Resource Person for the Interview Committee. On the day, the owners of the CVs were not known. There was a CV which a concern. It was picked up by the Interview Committee that the applicant for the post was not an Educator. The Committee was divided over whether she was an educator or not. When they attempted to see the subjects that she offered, they only found Speech Therapy. Through the advice of the former Principal, who was part of the Committee, the meeting resolved that Speech Therapy was not a subject.
59. The process was stopped and referred back to the circuit management. The second time the CV was not sent back to the school for shortlisting, and the process was completed.
60. During cross-examination, she stated that her role as a Resource Person was to guide the process. She is guided by the HRM Circular and no other document. The criteria for shortlisting were set per the HRM Circular and not the PAM documents. The Applicant’s CV did not meet the criteria set out in the HRM Circular. The HRM Circular will determine who should apply.
61. When the disagreement arose, she was not in a position to remove the affected CV. She added that even the union representatives who were present confirmed that Speech Therapy is not a subject. As a Resource Person, she did the right thing by taking the entire pack of applications back to the Circuit Management for revisiting.

Mr Phumelela Nkosi

62. Mr Nkosi testified that he is the Chief Education Specialist responsible for Circuit Management. He oversees the process of sifting.
63. The reason the Applicant’s CV was initially sifted in was because she misled the sifting tribunal. She indicated Level 1 under paragraph 1.12 of Bundle A. She was, however, not a PL1 Educator.
64. He confirmed that the entire pack of applications was brought back to the Circuit Management, and the sifting process was reconvened. The Applicant’s CV was not sent back to the school as she was not eligible to apply.
65. He differentiated between the Educator and the Teacher. The Educator definition was broader to make provision for consequence management of the specialized group of people who work with children. He also differentiated between the career path and salary structure of speech therapists and Educators.
66. He disagreed with the view that Therapists could be appointed to school management positions. He emphasised that it was not possible for a person who had never taught to manage Teachers.
67. He added that the levels for a Teacher are Level 1, Level 2 (HOD), and Level 3 (Principal). The same applies to Therapists. A Level 1 Therapist can be promoted to Level 2 or Level 3.
68. He further illustrated that a Level 1 Teacher cannot be promoted to a Level 2 Therapist. Similarly, a Level 1 Therapist cannot be promoted to a Level 3 Teacher. Therefore, a Therapist cannot apply to be promoted to a School Principal.
69. During cross-examination, he stated that he was not aware of why other Therapists were appointed as Principals. It would be appropriate for the persons who made such appointments to testify at the arbitration. He was not aware of the merits or reasons for the said appointments. He was only accountable for what he had done.
70. Concerning paragraph B.3.2.1.7, he agreed that it states that a person who qualifies may apply. This means that the person must have the necessary qualifications. To be a Teacher at a school, the relevant qualification is a Teaching Qualification. A Therapist who does not have the Teaching Qualification cannot apply for a teaching-level post.
71. With regards to the grievance outcome of Ms Chetty, he stated that he could not comment. There are different Managers and different Chairpersons who may have different interpretations of the legislation. This would result in different outcomes.

ANALYSIS OF EVIDENCE AND ARGUMENT

72. Section 186(2) (a) of the Labour Relations Act 66 of 1995, as amended, defines an unfair labour practice as any unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee.
73. In Noonan v Safety & Security Bargaining Council and Others [2012] 33 ILJ (LAC), it was held that 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 scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason.
74. In Ncane v R. Lyster N.O. and Others (2017) 4 BLLR 350 (LAC), the Court held that an arbitrator may only interfere with an employer’s substantive decision to promote a certain person where the decision is irrational, grossly unreasonable or mala fides unless the employer has set an objective standard.
75. It is also trite that the Applicant bears the onus of proving that the employer exercised its discretion improperly, unfairly, and arbitrarily. It has become trite law that there are three basic requirements for a fair appointment or promotion: the procedure must have been fair; there must have been no discrimination, and the decision must not have been grossly unreasonable. Any decision taken by an employer must be exercised reasonably and judiciously, and an Arbitrator must be loath to interfere unless there is gross unreasonableness or mala fides.
76. In the present matter, it was common cause that the Applicant did not meet the minimum requirements of the post as advertised in the HRM Circular No. 20 of 2023. Clause 4 of the Circular states that applicants for the Deputy Principal position must possess a recognised Teaching Qualification together with at least five years of actual teaching experience. The applicant did not possess a Teaching Qualification, and she did not have five years of experience in actual teaching.
77. Despite her not meeting the requirements for the post, she argued that her application ought to have been sifted in for shortlisting. I cannot accept this view. The sole purpose of the sifting process is to check that all applications are correct and that the applicants meet the minimum requirements for the post. The sifting process is guided by the advertisement and the requirements for the post. The sifting committee cannot accept applications that do not meet the minimum requirements. I therefore cannot find that the Applicant was incorrectly sifted out.
78. What happened is that she was incorrectly sifted in on the first instance. The Applicant indicated on her application form that she was a Level 1 Educator. The sifting committee was misled. Had she indicated that she was a Therapist, her CV would not have been sifted in.
79. With regards to LSEN schools, Clause 4.1 of the Circular states that applicants for these positions must possess both a Professional Teaching Qualification and relevant qualifications and experience in the special education field, as specified in the HRM document.
80. The PAM B.3.2.1.3 (u) that the Applicant appeared to rely on states that a Speech Therapist may not have a teaching qualification. What the Applicant failed to allude to is that it further states that: “but must comply with relevant requirements for appointment as set out in the document “Criteria for the Evaluation and Recognition of Qualifications for Employment Education”. What this means is that the relevant requirements must be present if the Speech Therapist wishes to apply for the post.
81. It is evident that the Applicant misinterpreted the PAM documents and the Circular, which at all material times refer to qualifying applicants and relevant requirements. These relevant requirements were contained in the advertisement for the post.
82. In the matter of Aries v CCMA & others (2006) 27 ILJ 2324 (LC) it was held 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.
83. Whilst I appreciate the Applicant’s vast knowledge and experience that she presented, the Respondent would be the best judge of the attributes, skills, and experience it was looking for when it shortlisted the Applicants for the position. It makes sense why the Respondent required a Teaching Qualification for the Deputy Principal position. It requires special expertise in teaching and school management. This is a reasonable requirement that is inherent to the position of educational leadership.
84. It would, however, have been unreasonable for a school to have a Senior Management Team of Therapists, Psychologists, Social Workers, all without a teaching qualification, managing a school and Teachers. It only makes sense that a Principal who heads the school should be familiar with teaching subjects.
85. The Respondent was therefore not shown to have acted in bad faith, with ulterior motive, arbitrarily, capriciously, or in a grossly unreasonable manner. The non-sifting, therefore, caused no prejudice to the Applicant since she lacked the relevant qualification and years of experience required in order for her to be shortlisted. Even if her application was sifted in, it is highly unlikely that she would have been shortlisted. She would not have met the criteria as set out by the shortlisting committee. Ms Msomi categorically stated that the shortlisting criteria were set in line with the HRM Circular, which contained the requirements for the post.
86. In reaching the above conclusion, I have also given due consideration to the ELRC Guidelines: Promotion Arbitrations. Under Section H, which guides Commissioners on how to deal with procedural aspects. Under Section H (51), the Guidelines refer to various Court Judgements. It further highlights that substantial compliance with PAM and ELRC Collective Agreements is sufficient. It goes on to say that one does not need to go digging to find points to hinder the process of appointing suitable candidates to teaching positions.
87. I will now deal with the claim of inconsistency. Whilst the Applicant stated that the respondent was inconsistent. The Respondent denied this and claimed that the previous appointments of candidates who did not possess relevant teaching qualifications were probably irregular. I find this version to be probable.
88. The fact that other Therapists were appointed as Principals does not mean that this was correct. It further does not mean that the Applicant ought to have been appointed. There was no evidence presented on the circumstances of the other two appointments. Ms Combrinck did not know the circumstances of her appointment. No member of the sifting committee or the Interview Committee testified in relation to how Ms Combrinck was appointed.
89. Ms Chetty did not testify on how she was appointed. The Chairperson of Ms Chetty’s grievance also did not testify on how he reached his outcome.
90. I therefore accept that the merits of the two appointments could have been different. Mr Nkosi also confirmed that different Managers or Chairpersons may interpret the policies differently. I therefore find the Respondent’s version that the appointments could have been irregular to be probable. If there are omissions or errors in the previous appointments (which are now being corrected), the Applicant cannot use this to claim prejudice, as she lacked the minimum requirements for the post in question.
91. In Sun International Management (Pty) Ltd v CCMA and others (JR 939/14) [2016] ZALCJHB 433 (handed down on 18 November 2016) it was held that a finding that a failure to promote was unfair must be a rational one i.e., it must be supported by facts. It is a determination that can only be made after a holistic assessment of evidence relating to the Employee’s qualifications and/or suitability for the position in question, against that of other candidates. The Court held that in promotion disputes, it is not enough to merely show that there is a breach of protocol or procedures in the recruitment process. It is also necessary for an Employee to show that the breach of the procedure had unfairly prejudiced her. This means that the Employee must not merely show that he was a suitable candidate for consideration, but that he was the best candidate.
92. Section F, ELRC Guidelines on Promotion Disputes in the Collective Agreement No.3 of 2016 outlines under Section F (48) that even if there was unfair conduct by an employer during a promotion process, this does not mean that there is substantive unfairness. There is a requirement on the applicant to show that, but for the irregularity or unfairness, the applicant would have been appointed to the post.
93. Whilst the Applicant argued that she would have been the best candidate for the post, she did not dispute that Ms Sukku met the requirements for the post. Ms Sukku has a Professional Teaching Qualification together with more than five years of teaching experience. The Applicant did not have these requirements; it is therefore unlikely that she would have been the best candidate for the post.
94. Section F (49) further states that it is necessary for the applicant to show that not only was she better qualified and sited for the post than the successful incumbent, but also that she was the best of all the candidates who applied for the position.
95. Apart from the claim of inconsistency concerning other Therapists being shortlisted or appointed, the applicant led no evidence that indicates that she was the best candidate for the post.
96. From all of the above, I am not satisfied that the Applicant has established on a balance of probabilities that the first Respondent has committed an unfair labour practice against her.
97. I therefore find that the first Respondent has not committed an unfair labour practice in respect of the Applicant.

AWARD

98. In the circumstances, I make the following award:

a) The Respondent has not committed an unfair labour practice in respect of the
Applicant;
b) The application is dismissed; and
c) There is no order as to cos

Elaine Moodliar
Arbitrator 13 June 2025
ELRC517-24/25KZN