IN THE MATTER BETWEEN:

NAVINE BUNDIRPASAD Applicant

And

KWAZULU-NATAL-DOE 1st Respondent

IRANA RAJKUMAR 2nd Respondent

ARBITRATION AWARD

Case Number: ELRC88-25/26KZN

Date of Award: 18 October 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 Applicant: Mr Navine Bundiparsad was present and represented by Mr Rishal Jugguth, NAPTOSA official.
2. The first respondent: KwaZulu-Natal Department of Education, was represented by Mr Bheki Nthsangase. The second respondent, Ms Irana Rajkumar was present and represented by a NAPTOSA officialRepresentative.
3. The matter was initially set down virtually. The first sitting on 25 August 2025 dealt with connection logistics, invitations, and readiness. The first respondent addressed the late realisation of the link exchanged, and the second respondent indicated the invite was sent to an email not used by the school. The sitting was adjourned to enable proper exchange of bundles and arrangements.
4. On 29 August 2025, the matter proceeded at Escourt CMC. On 29 and 30 September 2025 the matter proceeded virtually.
5. The applicant led his evidence-in-chief in full. The first respondent called Mr Vishane Bugwandeen (SGB Chairperson) and Mr Ramthol Dewendra Ricky (SGB scorer). The SADTU observer, Ms Rupa Ebrahim, also testified.
   BACKGROUND
6. This is a dispute concerning an alleged unfair labour practice relating to promotion under section 186(2)(a) of the Labour Relations Act 66 of 1995 (“LRA”). The ELRC has jurisdiction to arbitrate promotion disputes in the public education sector. The dispute arises from the filling of Post 1894 at Drakensberg Secondary School for Departmental Head: Humanities.
7. Shortlisting and interviews were held under HRM Circular 20/2024 for Post 1894.
8. The recommended list (EHR11) reflects scores: Rajkumar 38.6, Bundiparsad 32.3, Mbhele 27.7. The list, however, ranks Rajkumar #1, Mbhele #2, Bundiparsad #3.
9. Interview date: 04 February 2025; Ratification minutes: 05 February 2025. The EHR11 form bears the date 03 February 2025.
10. The SGB discussed affirmative action/gender equity, and the evidence reflects that Mbhele was moved to #2 on equity grounds.
11. The HOD subsequently appointed Rajkumar.
    ISSUES TO BE DECIDED
12. Procedural fairness: Whether the process (shortlisting, interviewing, scoring, documentation, and ratification) was conducted fairly; specifically, whether the SGB’s reliance on affirmative action (without placing enabling policy/plan) and documentary defects rendered the process procedurally unfair to the applicant.
13. Substantive fairness: Whether the applicant has shown, on a balance of probabilities, that he ought to have been appointed instead of the second respondent.
14. Remedy: If unfairness is established, what remedy is just and equitable (e.g., setting aside, protective promotion, or compensation).
15. Relief Sought: The applicant seeks to set aside the appointment of the second respondent or, in the alternative, appropriate relief. The respondents seek dismissal of the claim and upholding of the appointment.
    Opening Statements
16. Applicant: The applicant, through his representative, emphasised his 30 years of teaching experience, his BA and PGCE qualifications, his role as deputy chief marker, cluster coordinator, and mentor. He contended that the appointment was procedurally flawed and substantively unfair. Relief sought: to set aside the appointment of the second respondent.
17. First Respondent: The Department indicated it would call six witnesses, asserting that the second respondent’s NPDE, ACE, and CPDE workshop participation made her suitable. It argued that no grievances were lodged during the process, and the appointment was fair.
18. Second Respondent: The second respondent’s representative submitted that she had been at the school for nine years, was familiar with its community, and performed best in the interview, scoring the highest on EHR11. The SGB ratified her appointment, and the Department formalized it in writing.

SURVEY OF EVIDENCE AND ARGUMENTS

Applicant: Evidence-in-Chief

Witness: Mr Navine Bundiparsad

19. He testified he is a level 1 educator in the Humanities Department at Drakensberg Secondary, with over 30 years’ teaching. Bundle A, p17 shows 30 years’ experience at application; he has taught at Drakensberg his entire career. He holds a BA (History & Sociology) and PGCE. He knows the second respondent “for so many years”—taught her in high school; when she joined staff, they became friends, and he mentored her. He acted as Departmental Head in Humanities 2010–2012 and March 2024–March 2025; served as deputy chief marker for six years; NAPTOSA rep; cluster coordinator (teachers meet to discuss exam papers; support new educators; oversee others’ work); mentor to educators including Mbhele and the second respondent; sports coordinator (cricket/soccer); senior teacher. He included these leadership roles in his application. He trained markers, did dispute resolution, moderated markers, and structural/tactical planning and evaluation of senior markers. He said Mbhele also applied and both were shortlisted.
20. He referred to Bundle B p13: EHR11 — Recommended candidates: second respondent 38.6; Mbhele 27.7; himself 32.3; he was ranked 3rd. He stated he ranked 2nd by score and should have been second on the list. Bundle B p14: EHR7 — Curriculum Vitae Irana Rajkoomar: he said she “met the minimum requirements.” He contrasted experience: he acted in the position “for four years” and March 2024–March 2025; he stated he had over 30 years’ experience; second respondent had “8 years and nine months.” He began in 1994 (not in CV). He claimed he had more leadership than the second respondent. He described interview questions as “generic and some relevant”; he “never struggled” with answers and spoke about his career.
21. He read Bundle B par 1.18–1.19: B.A degree; workshops on curriculum delivery and discipline; computer literacy; co-founder of a history society; writing a book; shares knowledge with colleagues; leadership and community roles (political activism in the 80s; candidate for ward 10 in 2019; tutoring learners; Hindu cultural society; charity/spiritual upliftment; assisting student-teachers with research). He stated he was suitable due to qualifications, community contribution, and prior Departmental Head work. He said he knows the IC members (he taught the Chairperson; worked with scorer 2 at Nestlé; buys car parts from scorer 3). He stated IC knew him personally but not necessarily his work experience.
22. He alleged his experience was not considered at interview or ratification. He said interviews were on 04 Feb 2025, but EHR11 recommended list is dated 03 Feb 2025 which means “predetermined.” Bundle B p6: interview minutes dated Mon 2025/02/04; EHR11 shows 2025/02/03 “under the signatures.” Bundle B p10: ratification minutes dated 05 Feb 2025; par 3 references an attendance register but none attached; it states the meeting 18h00–20h15 (over 2 hours 15 minutes) but minutes are “too short,” “summarised.” He said the scribe was supposed to be “Sewpersadh but minutes show Mr Loot as secretary (par 3) after an “apology” for Sewparsadh is an educator and was the reader at interviews; he is a colleague familiar with the applicant and second respondent. p10: ratification at a full SGB meeting, he submitted no attendance register attached. p13: information “not captured correctly”: “It is I. Rajkumar , not T.,” and “Mam does not teach Social Sciences Grades 8–9; she teaches Geography Grades 10–12.” He noted Mbhele scored 27.7 yet placed #2; he said Mbhele “does not teach grade 8–9 social sciences, he teaches grade 9.” He complained his surname is misspelt (ends with D not H). He said Mmamaru is an educator at the school who “does not teach social sciences at all,” she specialises in LO; last candidate’s district blank in the form is blank. He said misstatements misrepresented second respondent’s curriculum knowledge, subject mastery, and suitability.
23. He addressed par 4, p10 (Chairperson): he denied it is the school’s prerogative to apply gender equality/affirmative action that is the Department’s jurisdiction. He read that SD Ramthol considered gender equity to place the second respondent and that Mbhele was moved to second for affirmative action; he said no equity criteria document accompanied this. He said he was moved to third because of gender equity/AA, which was not SGB jurisdiction and was unfair. He said interview scores showed too much consistency (not independent scoring). p7 (Candidate Mbhele): “too much consistency” raised by SADTU and Mr Sewlal (RP) “tried guiding the scorers.” In his score board, column 4 gave 04 “too consistent,” and “last score only one difference.” For Candidate 4: again uniformity; columns “4 and 5: 05 and 05 for all,” and “all 10 in column 3.” He said IC did not consider his experience/leadership and he was outscored by the second respondent; he did not believe the process was free, fair, transparent. He added SADTU representative “came late.”

Cross-Examination of Applicant

24. In cross-examination, he stated that all the candidates met the minimum required experience, but his experience exceeded that of the second respondent by more than two decades. He confirmed that he had more than thirty years of experience at the same school. He said that while Ms Rajkumar trained in OBE approaches, he had been exposed to three curricula—CAPS, OBE, and NATED (the one he started with in 1994). He maintained he had more experience in curriculum delivery; the approach had changed but the core skill had not changed much. Although NATED might be “outdated,” he said, that did not make it irrelevant; it remained recognised and had its own advantages. He agreed that changes had occurred but insisted that knowledge of past curricula should still be acknowledged.
25. He stated his education as a BA-Honours in History-Sociology. He recorded that, as a history educator, he had produced strong Grade results in history and motivated learners; he asserted that his merit was higher than that of the second respondent. He said his qualification enabled him to understand human behaviour, an important attribute for a teacher. When asked about Psychology, he explained that he had studied behavioural patterns in environments that affect people’s behaviour.
26. He set out his leadership roles: he had acted in the post between 2010 and 2012 and “last year until interviews.” He conceded he did not have documents from the Department of Education but said he had school documents showing he acted; he had not brought documents to substantiate the acting periods. He said he had mentored Mr Mbhele and the second respondent, describing her as a geography specialist; in CAPS there is history, and he had taught her how to set up papers and the professional behaviour she was taught by himself.
27. He confirmed he had no other qualifications. On “pastoral care,” he said it formed part of his course and that he provided pastoral care to learners. He stated he was a Senior Teacher “in terms of experience.” He clarified that, when he referred to “Senior Teacher,” he meant seniority by experience and not, as the respondent had explained, the formal designation that requires a departmental letter and is reflected differently on a payslip. In his view, twenty years’ experience should denote Senior Teacher status; since he had no departmental documentation, he believed the Department should have notified him that he was a Senior Teacher. He repeated that he was a Senior Teacher in terms of experience.
28. He was turned to the issue of incorrect spelling: he said that an incorrect spelling on a ratification document used for promotion “makes a big difference.” Where he had used an incorrect spelling, his document was not used for that (EHR7 – CV). His CV was used in the selection process, and at shortlisting there was a spelling error “AMALUSI” instead of “UMALUSI.” He said he could not accept the incorrect spelling on EHR11 (used by the Department for promotion), Bundle B at pages 20 and 13; that document, he said, was used for promotion purposes for the recommended candidates and shows their performance in the interviews.
29. He stated he had received another appointment and that made it six years as Deputy Chief Marker. He said that, in most instances, appointment letters were kept by officials when they arrived at the venue. He stated he could not include everything in the bundle as he did not know it would be needed. He added that the respondent had sufficient time to request the document from him, and that his experience could be checked by the Department; the Department had the information on his appointment in its database. Turning to EHR7 (his CV), page 19 (signature of the applicant), he said his signature should be on the CV; if not, it should have been sifted out. He stated he did not have a signature there as the document was on the computer, but the one sent to the Department was signed. The original documents, he said, were with the Department; the version in the bundle was a copy for his representative. On authenticity, he explained that he had made the CV for himself and the representative; if required, the Department could have requested the signed documents, which it had. He said he did not see why he should authenticate the copy he would be reading from.
30. He accepted that Ms Rajkumar received the highest score; he said he had no evidence of where the scores came from and that there was no motivation. Referring to the “2nd table,” page 5, he said he received the highest score in the shortlisting stage. They ranked him higher because they knew his experience and role. He stated the scores stayed the same for his shortlisting and should have for interviews, but when it came to interviews “they forgot” his merit. He said interviews are where they look for the most suitable candidate; one cannot just put scores with no motivation and justification. Referring to page 13, Bundle B, he insisted one cannot prepare a recommendation list before the interview. It did not matter if the signature was typed or handwritten; he said the form was produced on the 3rd, and the people who signed it would have been in a position to pick up the wrong date. He said even the minutes of interviews say “Monday,” which corresponds and “means it was predetermined.” On the 3rd there was no date next to it. He asserted that those who saw the document signed it on the 3rd; “people saw it and signed it.” He said the page shows three dates—the 3rd, the 5th, and the 14th—but that the “14/02/2025” is a wrong year and the “5” is unclear in the year. He said the date indicates when the document was produced; the handwriting is different; he knows the Principal’s handwriting; and there is no signature next to the date.
31. On the guidelines for promotions, he said he believed the PAM document was flouted. There was no transparency in the minutes; they did not display a full record—“a half a page is not transparency.” He said he was referring to the PAM procedure of transparency. When requested to specify in the circular where he said it was a PAM document, he maintained his position.
32. He stated that EHR11 was not authored by Ms Rajkumar; “the Principal is the author of this document.” He said he was prejudiced by the spelling error: if they can get spelling wrong, “what else can they get wrong?” On the Resource Person, he said the Principal did not score candidates during interviews. He alleged a false representation of the second respondent wherein the Principal filled incorrect information that gave her favourable suitability which she did not meet.
33. Regarding affirmative action or equity, he said the purpose of ratification is to accept or reject a list, not to draw up a new one. He said he did not have a procedure manual and could not answer what informed the question relating to ratification, but he stated the movement of Mr Mbhele was done without any Equity Plan. In his view, an individual cannot “just come up and move” a candidate; there must be statistics and an equity plan. He said scorers must not be guided by anyone; the Principal, as Resource Person, is not there to guide scorers in scoring—they must work independently. He said the issue was not discussed at length regarding guiding of scorers. He believed it was wrong for the RP to guide scorers; the RP should guide the process, not the scores; scorers “should be trained and not require any scoring.”

Cross-examination by the Second Respondent:

34. He stated he was familiar with the second respondent and concurred that both met the minimum requirements for the post. He did not dispute that she was shortlisted and agreed there is no entitlement to a post applied for. He agreed that the SGB can appoint whom they believe is the best candidate after interviews. His comment, however, was that he required “tangible evidence” that Ms Rajkumar performed better than he did, namely, the evidence of the interviews. He said he had no evidence that the SGB was trained for the process; he similarly had no evidence before him that she was a better candidate than him. He said he did not have the attendance register for the SGB ratification meeting; he had no evidence of that. In his view, ratification has no place in producing a new rank order—the SGB must reject or accept the recommended list. He said he did not know of the ratification attendance register; it was not sent to him. He said the recommended list does not show any justification and that the rank order should not be changed. He said there was an issue raised by a SADTU representative regarding “consistency,” which, to him, seemed a discrepancy “too much consistency,” which could be seen as colluding. He said he did not know of any trade union that lodged or wished to lodge a grievance. As to the issue of “too much consistency of scores,” he said there was no discussion about it and the issue was not discussed further. He agreed that, in the minutes, there was no discussion about recommending him to be the appointed candidate.
    Re-examination:
35. He stated that, based on his years of experience, he had referred to himself as a Senior Teacher. He said he did not know about “Senior Teachers and the PAM document,” and did not know that recognition attaches when one reaches twenty years of experience. He stated that in his interviews there was no issue raised about “Deputy Chief Marker,” and that the CV he produced was the one on his computer, identical to the one submitted to the post. He said he met the requirements, and all documents were properly filled in and accepted. On EHR11 and dates, he said interviews were on 04 February 2025 and ratification on 03 February 2025, which appears as the typed date. He closed by indicating there were no further witnesses and the case for the applicant was closed at that point.

Mr Vishane Bugwandeen: SGB Chairperson

36. He stated he was Chairperson of the Interview Committee; his duty was to ensure the process followed “all rules and regulations” and HRM 2024. Regarding EHR11, he said, “the form was created before the process so that all members can sign in when it is done,” the typed date was put “on day it was created,” and hand-written dates reflect when ratification was done. p10, Bundle B: On affirmative action, he said it “was agreed upon by all members” that the high score of Rajkumaar would be considered as well as gender/AA; Mr Mbhele “was recommended by another SGB member due to affirmative action” and therefore considered second candidate due to AA criteria. For a Deputy Principal post there had been a “huge difference” between first and second scores, so AA was not considered there. He concluded “everything was done according to all guidelines” and “that was my duty.”

Cross examination

37. He confirmed he is in law enforcement; he had been in about five processes; he had done scoring previously; he was there “to ensure a fair process and guidelines.” Mr Soolal was the Resource Person. He said there was no discussion about the candidates and “the process was dealt with accordingly.” He had done one workshop (primary school). He said it was stated in workshops to consider equality and affirmative action; he did not have the legislative guide in front of him. EHR11/Bundle B: he said the document is prepared after interviews and then ratified at full SGB. As to dates, “the date was put on when it was prepared, it was blank and not signed and I can assume the secretary filled in the date when they prepared that document.” He confirmed interviews were 04 Feb 2025 (school hall); “date submitted ratification: 14 Feb 2025.” He denied any predetermined list; the form was filled after interviews on 04 Feb 2025. He said it was suggested by “one of our members” to move Mr Mbhele for affirmative action because the school did not have educators of color in leadership; “Mr Mhabeer suggested this.” He said he understood AA may be provincial jurisdiction but “for our school” the suggestion was made “that we consider moving Mbhele up.” On p7 (L.P. Mbhele; N. Bundipars(e)ed) consistency concern from SADTU, Mr Soolal (RP) “just told them to score according to the points that were needed, a difference of not more than two must be scored.” He said the scores of Rajkumar were “consistent and not tampered” and the applicant’s also. He said he and the Principal attended the workshop, but was not certain about the scorers’ training. He confirmed he knew both the applicant and Rajkumar (knew applicant “as I was there as a learner”). On experience, he said they followed the guidelines: minimum years required and how the person answered and was scored in the interview.

Re-Examination

38. “None from first and second respondent.”

Mr Ramthol Dewendra Ricky: SGB Member (IC Scorer)

39. He described many years with DoE and 15 years SGB at a primary school in Escourt (10 years Chairperson); posts handled included Principals, Deputy Principals, and non-educator posts; at Drakensberg he has 13 years SGB (Treasurer/Chairperson etc.). He has experience in interviews/shortlisting and in community roles (CANSA relay; volleyball executive; cricket club player/executive; table tennis executive; president Uthukela Table Tennis Federation; DoE schools board of table tennis; chairperson indoor cultural project). A businessman for 33 years. He said these credentials give him insight into interviews and selection. Regarding Rajkumar, in his view she answered adequately, integrated present and past experiences, and portrayed more experience including handling school activities; she “does make for a good candidate”; justification of appointment: activities, experience, confidence, and all questions she answered “were related to her,” and “she took her time.” He said: “Despite gender and race, we selected the best candidate for this post at that point.”

Cross examination

40. He agreed he is an experienced SGB member (over 30 processes). He has been trained in scoring; for Post 1894 he did not attend training “for this particular one,” but trainings “generally cover the same aspects.” He said prior to interviews they had not discussed gender/equity. For the position to be fulfilled, they looked for management and leadership skills and a combination thereof to handle educators and learners. He said many years in a position may not equal “impact.” They have guidelines on positions and what to look for; they look at experience and “how they relate that experience.” Resolution 11 of 1997 “gives us a guideline” and was part of the IC process. He did not know about equity/gender at that time. On identical scores: individuals interpret answers differently; “you cannot have same scores and have different variations”; he can only explain his scores. Mbhele’s scores: “looks fair,” “identical scores” exist; as to SADTU’s consistency comment: “if it so, it is so.” Bundiparsad: similar scoring but “not exactly”; blocks 2, 4, 5 similar; “scores are not highly inconsistent… almost similar just one difference.” There is “no reason” why they are consistent; “candidate two it was also similar.” On experience: unless the candidate relates it to the post in interview, “we cannot count it,” even if IC knows the candidate. He said “the interview should be fair; it is done to select the interview. The school did not consider that. I said no, 1:34 min go back.” (recorded remark). EHR11: familiar; it stipulates the order; Bundiparsad placed 3rd; it was brought by one SGB member that in terms of race equity Mbhele should be 2nd — “Mr Mahabeer.” He was not aware of a directive for equity in schools but “read recently” that an SGB can re-arrange for equity reasons. He was not certain if the applicant was prejudiced by being 3rd though he scored 2nd highest. On ratification, he was not certain of the date; did not remember 05 Feb 2025. He said for DP Post (another process) there was a huge score gap, so no equity considered. On “criteria” for equity here, he “had no idea,” but “could have imagined” it was “because she is a female and has highest points,” and he could not recall all discussions (“long ago”).

Re-Examination

41. He repeated that Rajkumar elaborated more and related her experiences; she was confident and used all her minutes. Of the applicant, “did not relate a lot… answers were short and did not elaborate”; “you may have experiences but you need to bring it… in terms of questions asked,” and “he came up short on a lot of things but not so significant.” He said they used Resolution 11 to formulate questions. He added that even if Mbhele were not moved, the applicant would not have been moved to first.

Ms Rupa Ebrahim: SADTU Observer (Selection Process)
(Oath administered)

42. She is based at Escourt Primary. She said she was deployed “not to advance any SADTU candidate,” but to maintain fairness and proper procedures. She was Observer deployed by the local SADTU secretary; “the process was fair and transparent.” As Observer she also scored candidates “in my own reference” to ensure fairness “based on their performance.” p7, Bundle B: she said no, it was not unprocedural to have a discussion on inconsistencies in scoring; she made the comment as Observer but “stood down” thereafter; Observers are there to observe, not guide; Mr Soolal (RP) guided the process; he “said there was a consistency in the scores; I commented but I do not recall.” If irregularities were seen she would have observed and commented later. They “did discuss it,” considered it guidance, and “as a panel we agreed to give guidance to each other”; they found no irregularities. “We guided each other.” At the end, they agreed it was free and fair. She added: she has 4 years as Observer and trained; Observers must “stand by rules/regulations” and ensure fairness. That was her observation: there was consistency in scoring and the process was free and fair.

Cross examination

43. She has four years’ experience and SADTU training. She said there was no discussion of race/gender equity that she could recall at the interviews; questions were based on interview procedure and department circular for Post 1894. Bundle B p6: scorers were consistent; scoring for Rajkumar was fair. She said she was present at ratification, though late; she remembered movement of candidates. She described it not as “guidance” but a discussion regarding race/gender equity, and she had no objection as appointment was up to SGB and resource person. She did not know who is responsible for equity in schools. There was no AA document. She said the SGB wanted to consider “this area,” but experience was not mentioned.

Re-Examination

44. None. ANALYSIS OF EVIDENCE AND ARGUMENTS
45. The legal point of departure is settled. Section 23 of the Constitution guarantees the right to fair labour practices. The LRA gives effect to this right through section 186(2)(a), which protects employees against unfair conduct relating to promotion.
46. In terms of section 192, the applicant bears the initial onus to establish the impugned conduct; the employer then carries an evidentiary burden to show fairness. Where unfairness is established but the appointment would not have changed, section 193(4) empowers an arbitrator to grant just and equitable relief short of substitution.
47. Equity measures are legitimate but must be applied lawfully within an approved plan or policy (EEA s15 read with sectoral instruments such as PAM/HRM 20/2024). Appellate authority underpins four anchors for promotion disputes: irregularities must be material to outcome; a promotion order requires proof that, but for the unfairness, the applicant would have been appointed; arbitrators are slow to replace an employer’s rational preference; and affirmative action must be policy-anchored, not ad hoc.
48. In cross-examination the applicant fairly accepted that there is no entitlement to promotion and that the SGB may recommend the candidate it considers best after interviews; he nonetheless advanced that his experience (over three decades at the same school) and broader curricular exposure (NATED, OBE, CAPS) should have prevailed. Length of service and curricular familiarity are not trivial; they speak to commitment and institutional knowledge. The difficulty is that the contest here was resolved primarily by interview performance. On his own version he has “no tangible evidence” that the second respondent’s higher score is wrong; he produces no counter-scoring or contemporaneous evaluator commentary to dislodge the outcome. In those circumstances, long service, standing alone, does not establish that he should have outranked the top-scoring candidate.
49. He relied on leadership indicators acting HOD (2010–2012 and again up to interviews), Deputy Chief Marker for several years, cluster coordination, mentoring of both rivals as markers of superior suitability. I accept that he likely performed many of these roles; however, where departmental confirmations were requested, he produced none, explaining that original letters are often retained at marking venues and that the Department’s database could verify them. That explanation is not implausible, but in a promotion contest the absence of employer-issued confirmations diminishes the weight of those roles when set against a recorded interview score that is not substantively challenged. Similarly, his assertion that he is a “Senior Teacher” by experience, while sincere, lacks the formal designation and payroll reflection that would be expected; I therefore treat it as experiential seniority rather than the formal grade.
50. He placed considerable emphasis on clerical issues: spelling mistakes, subject-teaching inaccuracies, and the dating of EHR11. As to what the date meant to him, the applicant’s submission was explicit: because EHR11 bears “03 February 2025” and interviews occurred on 04 February 2025, he contended the list was “produced on the 3rd,” the signatories “saw it and signed it,” and therefore the process (including scores) was pre-arranged—“predetermined”—before any interviews. I have carefully considered that submission exactly as he cast it. I cannot agree. On the probabilities, the typed date is an administrative blunder rather than proof that the committee sat and scored candidates before interviews. Multiple participants placed the interviews on the 4th; no witness testified that ratification occurred on the 3rd; and it is inherently unlikely that a panel intent on orchestrating results would then furnish a contemporaneous paper trail recording its own orchestration. I therefore treat the EHR11 date anomaly as a clerical imperfection. It does not, on this record, impeach the reality that interviews were held and scored on the 4th, and it does not convert a process complaint into a substantive vitiation of the appointment.
51. He also argued that the Resource Person “guided” scorers—e.g., by indicating that score differentials should not exceed two points leading to excessive uniformity. Guidance of process boundaries is not ideal if it dulls genuine differentiation, but I am not presented with primary proof that scorers abandoned their independent judgment or that the guidance dictated specific marks. The Chair and the Observer described the intervention as process management; without more, uniformity alone does not make out collusion or a distortion that would have propelled the applicant to first place.
52. His most telling procedural challenge concerns ratification. He maintained that ratification is to accept or reject a recommendation, not to redraw the ranking, and he pointed to the lack of an attendance register and the absence of any Employment Equity Plan or directive. On this, the evidence is coherent: the Chair acknowledged that equity was discussed and that Mr Mbhele was shifted into second place for equity reasons; the scorer confirmed the discussion and could not identify a policy basis; the Observer recalled an equity discussion at ratification and no AA document being tabled. I am satisfied that the SGB invoked equity without placing an enabling plan or policy before the panel. That is a procedural irregularity unfair to the applicant’s interest in a policy-compliant process. Crucially, however, it did not touch the top ranking.
53. Mr Vishane Bugwandeen’s account that interviews were held on 04 February 2025 is accepted, and the typed date on EHR11 is treated as an administrative error rather than proof of pre-interview scoring. That conclusion is supported by the probabilities and by the absence of any witness placing ratification on the previous day. I therefore reject the suggestion that the dating anomaly evidences predetermination of scores or outcome. What is accepted from him—and it is decisive on process—is that equity was discussed at ratification and that Mr Mbhele was moved into second place on that basis without any Employment Equity Plan or policy being tabled. His reliance on “workshops” or general practice to justify the SGB’s implementation of equity is not persuasive: equity is an employer-policy intervention that must be anchored in an approved plan. In Department of Correctional Services v POPCRU & Others (2013) 34 ILJ 2795 (SCA), the Supreme Court of Appeal confirmed that affirmative action measures are lawful only when applied within a valid, properly formulated employment equity framework; ad hoc or mechanical application is unlawful. That principle squarely answers the justification advanced here. As to the resource person’s guidance on keeping score spreads within bounds, I accept his explanation that this was process management rather than instruction on marks. There is no primary proof that scorers were told what scores to award, and I decline to infer collusion from similarity alone. Finally, while I give limited weight to his failure to correct the EHR11 date contemporaneously, I do not treat that omission as proof of substantive unfairness, given the uncontested fact that the appointee ranked first on the interview score.
54. Mr Ramthol Dewendra Ricky’s evidence on the selection focus—management and leadership, and the ability to relate experience to the questions—is coherent and is accepted. His observation that the appointee elaborated and connected her experience, while the applicant was comparatively terse, aligns with the function of a promotion interview and was not shaken. Critically, I accept his assertion that even without moving Mr Mbhele, the applicant would not have been first; that is consistent with the recorded scores and was not contradicted by primary material. The principle in Noonan v SSSBC & Others (2012) 33 ILJ 2597 (LAC) is directly engaged: the Labour Appeal Court held that employees enjoy a right to a fair opportunity to compete, but not to promotion; a promotion order is competent only where the employee shows that, but for the unfairness, he would have been appointed. On Mr Ricky’s uncontested version and the score sheet itself, that causal threshold is not met. To the extent his evidence implied that an SGB may re-order rankings for equity as a matter of course, I do not accept that proposition; equity must be employer-driven and policy-anchored, as POPCRU makes clear. On the allegation of uniform scoring, his explanation that similar totals can emerge from independent assessments is plausible, and there is no evidence that any scorer surrendered independent judgment. The materiality inquiry from Head of Department of Education v Mofokeng & Others (2015) 36 ILJ 2802 (LAC) also applies here: the Labour Appeal Court stated that not every irregularity vitiates a process; the question is whether the defect had a reasonable possibility of affecting the result. On this record, similarity of scores does not establish a material distortion.
55. Ms Rupa Ebrahim, the SADTU observer, credibly corroborated that an equity discussion occurred at ratification and that no Employment Equity Plan or AA document was tabled. I accept that portion of her evidence because it goes directly to the process issue. Her global conclusion that the process was “free and fair” is treated with caution, given her late arrival and the legal requirement that equity be applied within policy rather than by impression. Her description of the resource person’s contribution as process-oriented rather than mark-setting is consistent with Mr Bugwandeen’s account and is accepted.
56. Taking the respondent’s evidence as a whole, only one defect is proved: the SGB altered the recommendation between second and third on equity grounds without placing an enabling Employment Equity Plan or policy before the panel. That is a procedural irregularity in the narrow sense recognised by POPCRU. The remaining challenges—most notably the EHR11 date—do not, on the probabilities, show predetermination or pre-scoring and are treated as administrative imperfections without substantive consequence. The appointment itself remains anchored in the undisputed fact that the appointee was the highest-scoring candidate at interview. Two further appellate principles confirm the outcome. In Mofokeng, the Labour Appeal Court held that an arbitrator must focus on the materiality of any irregularity—whether it could reasonably have affected the outcome; here, it did not. In Ncane v Lyster NO & Others (2017) 38 ILJ 907 (LAC), the Court cautioned that tribunals should be slow to substitute the employer’s selection absent gross unreasonableness, bias, or discrimination; where the top ranking is unaffected, a non-disruptive remedy is indicated. Applying those principles, the respondent’s witnesses establish that the only unfairness lies in the policy-less equity re-ordering between second and third, while the substantive outcome—first place—stands on a rational, score-based footing
57. In Noonan v SSSBC & Others (LAC, 2012) it was held that employees have the right to a fair opportunity to compete for a position but no automatic right to promotion.
58. Department of Justice v CCMA & Others – guidance:
    “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. This is not one of those cases such as disputes relating to unfair discrimination and disputes relating to freedom of association where if the employee proves the conduct complained of, the legislation then requires the employer to prove that such conduct was fair or lawful and, if he cannot prove that, unfairness is established. In cases where that is intended to be the case, legislation has said so clearly…”
59. The applicant testified at length about his thirty years of teaching experience, his leadership roles, and his history of mentoring the second respondent. He further identified documentary irregularities in the process: firstly, that the recommended list (EHR11) was dated 03 February 2025, while the interviews only took place on 04 February 2025; secondly, that the minutes of ratification were exceptionally short for a meeting lasting over two hours and did not include the attendance register they purported to reference; thirdly, that the secretary recorded in the minutes was inconsistent with the person originally allocated to the role. These are not trivial errors. As noted in Department of Education v Mofokeng & others (2015) 36 ILJ 2802 (LAC), irregularities in promotion processes do not automatically vitiate the process, but where they are material and have a reasonable possibility of affecting the outcome, they may amount to procedural unfairness.
60. The applicant further contended that affirmative action and gender equity considerations were impermissibly applied by the SGB, resulting in his being ranked third instead of second, despite having a higher score than Mr Mbhele. In this regard, his evidence was clear: there was no policy directive or documentary basis produced to justify the rearrangement. The witnesses for the respondent, particularly Mr Bugwandeen (Chairperson) and Mr Ramthol (SGB member), both conceded that there was no document from the Department authorising the SGB to alter the ranking on grounds of equity. Their justification was based on workshops and practice rather than statutory or circular authority.
61. It is trite that SGBs are empowered to participate in the process of recommending candidates, but the jurisdiction to implement equity and affirmative action rests with the Department as the employer. The applicant’s contention that the SGB exceeded its mandate finds support in Department of Correctional Services v POPCRU & Others (2013) 34 ILJ 1852 (SCA), which confirmed that equity measures must be applied within the framework of lawful policies and criteria. In the absence of such documentation, the alteration of rankings may be considered arbitrary.
62. On the question of experience and suitability, the applicant emphasised his over three decades of service, compared with the second respondent’s nine years. He listed leadership, cluster coordination, provincial roles, and acting experience. The SGB witnesses, however, consistently testified that what weighed in favour of the second respondent was not length of service alone but the manner in which she presented her experience in the interview. Mr Ramthol in particular stated that “you may have experiences but you need to bring it to us in the interviews,” and that the applicant “came up short” in elaborating his responses. This speaks to the well-established principle that promotions are not based on seniority alone but on a combination of experience, qualifications, and demonstrated ability. In Ncane v Lyster NO and Others (2017) 38 ILJ 907 (LAC), the Labour Appeal Court reiterated that courts and arbitrators should be slow to interfere with an employer’s discretion unless there is evidence of gross unreasonableness, bad faith, or discrimination.
63. The applicant also alleged that scoring was not independent because of uniformity among scorers. He pointed out that Mr Soolal, the resource person, intervened when identical scores were noted, instructing scorers that differences should not exceed two points. While this raises concern about independence, both the Chairperson and the SADTU observer, Ms Ebrahim, maintained that this was guidance rather than interference, and that they considered the process fair. The mere similarity of scores, without further evidence of collusion, does not necessarily establish irregularity. In Head of Department, Department of Education v Mofokeng (supra), the court warned against elevating every error into a ground for interference, focusing instead on whether the irregularity was material.
64. With regard to credibility, the applicant presented as a deeply experienced educator with a sense of grievance at being overlooked. His testimony about documentary irregularities is largely corroborated by the contents of the bundles. However, the SGB witnesses appeared consistent in their evidence that the second respondent performed better at interview and answered questions with more detail and confidence. Their evidence suggests that the committee valued interview performance highly.
65. The role of affirmative action remains problematic. On the evidence, it is clear that the applicant was displaced from second position to third due to considerations of equity, without the production of an enabling directive. Both Mr Bugwandeen and Mr Ramthol admitted as much. This irregularity, while it may not have altered the appointment of the second respondent who scored the highest, did affect the applicant’s relative ranking and prospects in the process. In City of Tshwane v South African Local Government Bargaining Council & Others (2012) 33 ILJ 2465 (LC), it was held that even where the best candidate is appointed, a failure to follow fair procedure can still constitute an unfair labour practice.
66. The applicant did not dispute that she met the minimum requirements and performed well. The dispute turns on whether his superior experience should have outweighed her performance, and whether the irregularities so undermined the process that fairness was compromised.
67. The key question is whether the irregularities materially prejudiced the applicant. The evidence shows that the second respondent scored highest and was recommended and ratified accordingly. That ad-hoc reliance on equity exceeded the SGB’s role and was procedurally unfair to the applicant. In line with Head of Department of Education v Mofokeng & Others (LAC, 2015), the enquiry is whether such irregularities were material in the sense that they could have affected the outcome.
68. Arbitration awards dealing with school-level affirmative action—such as PSES 221-08/09 (Coetzee) and PSES 285-07/08 (Abrahams)—confirm that equity may justify a departure from strict score-order only when anchored in the Employment Equity Act/PAM framework; absent that, ad-hoc rearrangements render the process procedurally unfair. While those facts involved applicants who ranked first at school level, the principle applies equally where, as here, the applicant was placed lower (third) and the successful candidate’s top-rank remains unaffected.

Relief

69. Even if I accept that the SGB’s reliance on affirmative action was procedurally irregular because it was not policy-anchored, the applicant would not have been appointed in any event as the successful candidate remained the top-ranked candidate. Promotion is not automatic; it requires proof that, but for the unfairness, the applicant would have been appointed (Noonan v SSSBC & Others, LAC). Where, as here, the top ranking is unaffected, tribunals should be slow to displace the outcome (Ncane v Lyster NO & Others, LAC). In a closely analogous matter where a lower-ranked applicant sought to use equity considerations to vault higher, the Labour Court refused promotion and set aside the award (SAPS v SSSBC & Others, LC). Equity must be implemented within a lawful plan (Dept of Correctional Services v POPCRU & Others, SCA). The appropriate relief is therefore procedural redress (compensation) rather than setting aside the appointment.
70. The dispute concerns both substantive and procedural fairness in the filling of HRM 20/2024, Post 1894 at Drakensberg Secondary School (Departmental Head: Humanities). On the substantive question, the record shows that the second respondent was the highest-ranked candidate on the interview scores and met the minimum requirements. The applicant did not establish, on a balance of probabilities, that he was the best overall candidate or that the appointment was vitiated by bias, bad faith, or another discriminator.
71. I find the process procedurally unfair in that the School Governing Body re-ordered the recommendation between second and third on equity grounds without an enabling Employment Equity Plan/policy being placed before the panel. I further find the process substantively fair: the successful candidate remained the top-scoring candidate, and Mr Navine Bundiparsad has not shown that, but for the irregularity, he would have been appointed.
72. Having considered ELRC Collective Agreement No.3 of 2016 and the Guidelines for Promotion Arbitrations on compensation for non-patrimonial harm( solatium). I determine that a distress/ solatium amount of R20 000 is appropriate. The unfairness proven is procedural only, did not alter the appointment, and warrants a solatium that is rand value proportionate and reflects the seriousness of invoking equity without a policy anchor, remains well below discrimination-level figures, and promotes deterrence without disrupting the post.

AWARD

73. The appointment of Ms Irana Rajkumar to Post 1894: Departmental Head (Humanities), Drakensberg Secondary School, is upheld; there was no unfair labour practice substantively and the appointment will not be interfered with.
74. KwaZulu-Natal Department of Education (KZN DOE) committed an unfair labour practice (procedural) and must pay Mr Navine Bundiparsad R20 000 (twenty thousand rand) as a solatium for non-patrimonial harm arising from the procedural unfairness identified.
75. Payment must be made by 25 November 2025.

ELRC Arbitrator:

Date: 18 October 2025