26 November 2025 -ELRC44-22/23KZN

IN THE ELRC ARBITRATION
BETWEEN:
NAVINDRAN PILLAY the Applicant
and
DEPARTMENT OF BASIC EDUCATION – KWAZULU-NATAL the first Respondent
ERIC DLAMINI the Second Respondent
GOVERNING BODY, ST MICHAELS
PRIMARY SCHOOL the Third Respondent

HEAD OF DEPARTMENT:
DEPARTMENT OF EDUCATION KWAZULU-NATAL the Fourth Respondent

D D NGWENYA the Fifth Respondent

ARBITRATION AWARD

Case Number: ELRC44-22/23KZN
Last date of arbitration: 18 March 2025
Date of award: 25 November 2025
Arbitrator: Scelo V Mkhize

DETAILS OF THE HEARING

The matter was enrolled before me for arbitration proceedings in terms of section 191(5) (a) (iv) of the Labour Relations Act 66 of 1995 as amended (The Act). The arbitration was held on various dates, but evidence was heard on the following dates: 01st and 02nd March 2023, 07th July 2023, 07 and 08 August 2023, 01st and 02nd November 2023, 20th November 2023, 23rd May 2024, 04th July 2024, 04th and 05th February 2025, 17 and 18 March 2025. The arbitration was held at Durban Teachers’ Centre, Overport, Durban.
The Applicant, Mr Pillay, appeared in person and he was represented by Adv J Reuou instructed by the law firm, Sanjay Lorick & Partners. The First, Third and Fourth Respondents were represented by Adv M I Mneno instructed by the State Attorney KwaZulu-Natal. The Second and Fifth Respondents were represented by Mr N Bauque a trade union official from SADTU.
The arbitration was held in English, and it was mechanically recorded.

ISSUE TO BE DECIDED

In these proceedings, I am required to decide whether by not promoting the Applicant to the position of deputy principal, the First Respondent committed an unfair labour practice envisaged by section 186 (a) of the Act. If so, I must determine the relief that the applicant would be entitled to.

BACKGROUND

The Applicant is Navindran Pillay who is currently employed by the First Respondent as the Head of Department at St Michaels Primary School. The First Respondent is the Department of Education KwaZulu Natal, a governmental department duly fulfilling its mandate in terms of the Constitution and in terms of the South African Schools Act 84 of 1996, with its provincial offices at 247 Burger Street, Pietermaritzburg, KwaZulu Natal. The Second Respondent is Eric Dlamini who is currently employed by the First Respondent as the principal at St Michaels Primary School and who, at the time of the alleged claim, was appointed as the deputy principal. The Third Respondent is the Governing Body of St Michael Primary School who are cited herein as an interested party. The Fourth Respondent the Head of Department who cited herein as an interested party. The Fifth Respondent D D Ngwenya who is currently employed as the deputy principal at St Michaels Primary School, who is cited herein as an interested party.
The Applicant referred a dispute for unfair labour practice related to promotion in terms section 186 (2) (a) of the Labour Relations Act 66 of 1995 to this honorable council claiming that First Respondent committed an unfair labour practice by not promoting him to the position of a deputy principal at St Michaels Primary School.
The Applicant’s claim is that he was the most suitable candidate for the post, and he scored the highest score at interviews than the Second Respondent, but the First Respondent through certain members of its interview committee manipulated the interview and the appointment process in that they swopped and altered the interview scores in favour of the Second Respondent. As a result, the Second Respondent obtained a higher score than the Applicant and he was recommended for appointment. Furthermore, the Second Respondent was not even supposed to be shortlisted in the first place because he did not make it to the first five candidates that were supposed to be interviewed in terms of the HRM circular.
The Respondents deny that the Applicant was the most suitable candidate for the position and that certain members of the interview panel manipulated the process by swapping and altering the Applicant’s score. The Respondents further deny that the Second Respondent was not even supposed to be shortlisted in the first place because he did not make it to the first five candidates that were supposed to be interviewed in terms of the circular.
The parties produced bundles of documents to be used during the arbitration process. The Applicant’s bundles were marked as bundle “A1” and “A2”. The First, Third and Fourth Respondents’ bundles were marked as bundle “B1” and “B2”. The Second and Fifth Respondents did not produce any bundle.

COMMON CAUSE FACTS

The following facts were common cause between the parties:
• that the Applicant is employed by the First Respondent as the Head of Department St Michaels Primary School;
• that the Applicant applied for a position of a deputy principal in the same school as advertised by the First Respondent on HRM Circular N: 70 of 2018;
• that the requirements for the advertised post were recognized 3- or 4-years’ qualification which includes professional teacher education; registration with SACE as professional educator; advance knowledge of teaching as provided for in the professional qualification; good management skills; leadership; good teaching skills; good extra and co-curricular skills; good people management; good administrative skills; good communication skills; and 5 years actual teaching experience;
• that he was shortlisted and attended interviews together with the Second Respondent;
• that he was not appointed to the post, but the Second Respondent was appointed;

ISSUES IN DISPUTE

The following issues were in dispute between the parties: Whether the First Respondent committed an unfair labour practice relating to promotion against the Applicant, in particular:
• Whether the Applicant had actually received the score higher than that of the Second Respondent at interviews, but the interview scores were manipulated in favour of the Second Respondent by the interview committee;
• Whether the Second Respondent should have been shortlisted for interviews in the first place. SURVEY OF EVIDENCE AND ARGUMENTS
Applicant’s case
He testified that during 2021, he was injured and he was not at work for some time. When he came back found certain documents on top of his desk. These documents were the interview timetable dated 13 April 2019, the original and amended interview DP and interview assessment sheets appearing in pages 153 to 168 of bundle A1. These documents indicated that he had actually received the highest score at the interviews of the deputy principal post. He believed that the documents dated the 09th of March 2019 were incorrect. The correct ones were the ones he found on top of his desk dated the 13 April 2019 as well as the assessment sheets in pages 153 to 168 of A1. He believed that the interview scores were manipulated and swapped in favour of the Second Respondent by the interview committee. During cross examination he stated that the scores were manipulated by Mr Sithole, the chairperson of the interview committee, but he was not sure as to when and where the scores were manipulated. He admitted he did not witness the swapping of scores. He also could not explain the origin of the documents he found on top of his desk or call any witness to authenticate them. He admitted that he lied under oath in his affidavit about the appointment date of the Second Respondent. He admitted also that he was not telling the truth when he said NP13 on page 66 was dated the 13 April 2019.
The Applicant’s witness, Mr H P Harricharan, testified the Applicant got the highest score at the interviews, but the scores were changed in favour of the Second Respondent. He did not do anything about it because he was fed up and he was going to retire soon. That is why he left the school soon after the interviews. He did not know why the chairperson had this agenda, but the chairperson lives in resevior hills which is the area where the high-ranking officials of SADTU were also residing. He disputed that the documents dated 09 March 2019 were correct because the interview date was on the 13th April 2019 and he was the only one who had the school date stamp. He would never predate the documents with the school stamp. During cross examination he admitted that he had omitted to put stamps on some of the documents and also that he had back dated some of the documents.

Respondent’s case

On the other hand, the First Respondent’s first witness Sithole testified that he was the chairperson of the interview committee. The Second Applicant obtained a higher score than the Applicant and he was the most suitable candidate. He denied any swapping of scores, manipulation and intimidation. He disputed the knowledge, and the contents of the documents dated 13 April 2019 and the assessment sheets in page 153 to 168. He denied that the business forum had any influence on the appointment process. During cross examination he admitted that the Applicant assessment sheet should have reflected the date stamp of the 13 April 2019 and he was not sure why this did not happen. The documents dated the 09th March 20219 looked strange because of the date stamp. He initially denied having testified or deposed to an affidavit about this matter before. However, he later admitted that he deposed to an affidavit and that in the affidavit he stated that the reason why the documents were dated 09th March 2019 was because the interview committee had agreed that all documents for the interviews and shortlisting should be compiled and put in a safe. He stated that he was not sure whether the documents from page 153 to 168 emanated from the interview process. He admitted that the Second Applicant was not the applicant that fell within the exceptions in paragraph 5.2 of the circular.
The First Respondent’s Second witness, Sbongakonke Clerence Mthembu, testified that he was the member of the interview committee. The Second Respondent obtained the highest mark at the interviews, which was 39.75, whereas the Applicant obtained 37,75. That was the reason why the Second Respondent was recommended for appointment. He denied the swapping of scores, the manipulation and the influence of the business forum in the appointment process. The reason why the interview documents had the date stamp of 09 March 2019 was because they wanted to be prepared beforehand, hence the principal stamped the forms with the date stamp of the 09th March 2019. He denied also that the interview timetable with the date stamp of the 13 April 2019, the composite spreadsheet and the assessment sheets appearing on pages 153 to 168 were the correct interview documents. During cross examination, he stated that the reason why they included the Second Respondent on the interview list was because the list had only Indian candidates; they wanted to be more inclusive and add more females and African candidates.
The Third Respondent’s witness Indrian Pillay testified that he is employed by the First Respondent as a Deputy Director of Human Resources Management for Umlazi District. He stated that the Head of Department of Education had a discretion to appoint any candidate in the recommendation list. Even if the Applicant was ranked number one on the list there was no guarantee that he would have been appointed. During cross examination, he stated that the important requirement about the qualification was the teaching diploma.

CLOSING ARGUMENTS

Both, the Applicant’s and the First Respondent’s representatives submitted written closing submissions. I would not repeat their submissions herein, but I have considered their submissions in my analysis below.

ANALYSIS OF EVIDENCE AND SUBMISSIONS

In these proceedings I am required to decide whether the First Respondent committed an unfair labour practice related to promotion envisaged by section 186 (2) (a) of the Act, in particular, whether by not promoting the Applicant to the position of the deputy principal, the First Respondent committed an unfair labour practice within the ambit of section 186 (2) (a).
The general rule applicable to all civil litigation and arbitrations is that whoever alleges a fact must prove it on a balance of probabilities. In David Johan Randles v Chemical Specialities Case No D28610, the Labour Court held, with reference to Pillay v Khrishna 1946 A 946, that – “if one person claims something from another in a court of law, then he has to satisfy the court that he is entitled to it. In Lindsay v Ithala Development Finance Corporation Ltd (2) (2002) 23 ILJ 418 (CCMA), it was held that the overall onus always rests on the employee to show the existence of an unfair labour practice. Therefore, the Applicant bears onus to prove that the First Respondent committed an unfair labour practice against him.

Whether the Respondent’s failure to promote the Applicant was unfair

In terms of section 186 (2) (a) of the Act, an unfair labour practice means any unfair act or omission that arises between an employer and an employee involving- unfair conduct by an employer relating to the promotion, demotion, probation or training of an employee or relating to the provision of benefits.
In City of Cape Town v SAMWU obo Sylvester and Others (2013) 34 ILJ 1156 (LC) it was held that an overall test in an unfair labour practice related to promotion is one of fairness. In deciding whether the employer acted fairly in failing or refusing to promote the employee it is relevant to consider the following:

• Whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious consideration on the part of the employer; or
• Whether the employer’s decision was arbitrary, or capricious, or unfair; or
• Whether the employer failed to apply its mind to the promotion of the employee; or
• Whether the employer’s decision not to promote was motivated by bad faith;
• Whether the employer’s decision not to promote was discriminatory;
• Whether there were insubstantial reasons for the employer’s decision not to promote;
• Whether the employer’s decision not to promote was based upon a wrong principle;
• Whether the employer’s decision not to promote was taken in a biased manner.

The crisp issues in this matter are whether the Applicant had actually received a score that was higher than the Second Respondent at interviews, but the interview committee manipulated the scores in favour of the Second Respondent and whether the Second Respondent should have been shortlisted for interview in the first place owing to the requirements of paragraph 8.2 of the HRM circular 70 of 2018. I will first deal with the second issue and thereafter with the first issue.
About the second issue, the Applicant’s evidence in this regard was that in terms of paragraph 8.2 of the circular, the list of shortlisted candidates for interview should not exceed five per post. The Second Respondent did not make it to the first five candidates. Therefore, he should not have been shortlisted. However, the Applicant, on his own accord, during evidence in chief, admitted that there were exceptions to this limitation, in particular the exceptions in paragraph 5.2 and where an educator has been acting in the post for 12 months or more. Even though the Second Respondent did not testify in these proceedings, the Applicant admitted that he was not aware whether the Second Respondent had been acting in the post. He was also not aware whether the Second Respondent had been a victim of downgrading of the post, which is one of the exceptions in paragraph 5.2. As indicated above, the onus was on the Applicant to show that he was treated unfairly by the First Respondent. The Applicant did not tender any evidence to show that the Second Respondent did not fall within the exceptions in paragraph 5.2 of the circular. In light of the admissions referred to above, I am of the view that the Applicant has failed to discharge onus that the Applicant should not have been shortlisted for interviews.
Despite the above conclusions, Mr Sithole, the chairperson of the interview committee, testified that the three candidates that were added on the interview lists during shortlisting were added because of affirmative action. This was, in my view, corroborated by the minutes of the shortlisting in annexure NP4 which were not in dispute between the parties and by the evidence of Mr Mthembu who confirmed that they wanted to be more inclusive. Even the Applicant’s witness Mr Harricharan admitted that the addition of the Second Respondent was the agreement of the interview committee and there was nothing wrong with it. Also, the First Respondent’s third witness, Pillay, testified that the most important requirement about the qualification was the diploma. This was not disputed by the Applicant.
In light of the above conclusions, I am of the view that the First Respondent’s interview committee cannot be faulted by the addition of the Second Respondent on the interview list and this did not constitute an unfair labour practice.
On the first issue, there was a dispute of fact as to which documents were the correct interview documents between the mystery documents that Applicant had found on top of his desk and the documents with the date stamp of 09 March 20219.
The Courts have developed guidelines on how to deal with the dispute of facts in a particular case. In SFW Group Ltd and Another vs Martel et Cie and Others 2003 (1) SA 11 (SCA), it was held that in order to conclude on the disputed facts the court must make findings on the credibility of various factual witnesses, their reliability and probabilities. In Sasol Mining (Pty) Ltd vs Commissioner Ngqeleni & Others (JR1595/08) (2010) ZALCJHB 3(1 October 2010), it was held that the proper approach when resolving factual dispute is to make findings on the credibility and reliability of witnesses, which in turn entails finding on the witnesses’ condor, demeanor, contradictions in their evidence and an assessment of the probability of their testimony.
In my view, the evidence of the main witnesses of both parties was not credible enough to assist me in making a finding on this matter. There were inconsistencies on both sides. The Applicant admitted to have lied under oath on two occasions. One was with regard to his affidavit during the high court application where he stated that the Second Respondent’s appointment was on 29 April 2019 instead of the 01 August 2019. The second one was with regards to whether NP13 was date stamped. His witness, Haricharran testified that he always put the date stamp for that day on the documents and he would never predate the documents. But he later admitted that he omitted to put the date stamp on some of the documents and that he had predated certain documents.
On the other, the Respondent’s main witness, Sithole initially stated that the interview documents should have been dated the 13th April 2019 which was the date of interviews. He did not know why they were dated 09 March 2019. However, he later admitted that in his affidavit during the high court case he had stated that they predated the documents because the interview committee had agreed to stamp and put them in a safe place. On the other hand, Mthembu stated that they predated the documents because they wanted to be prepared beforehand.
In light of the above contradictions on both sides, I had no option but to turn on the inherent probabilities of the documents in light of parties’ evidence. It was not in dispute that the documents with the date stamp of the 09th of March 2019 were the ones submitted with the recommendation for appointment to HOD. The only issue was whether these documents were the correct ones or whether the correct ones were the ones found by the Applicant on his desk.
It was also not in dispute that the interview assessment sheets of the Applicant and the Second Respondent which were submitted to the HOD had the school stamp of the 09th March 2019. On the documents that were found by the Applicant on top of his desk it was only the interview timetable which had the school stamp, and it was dated the 13th of April 2019. The other documents viz the composite spread sheets and assessment sheets did not have any school stamp or date. The evidence of Mr Haricharan was that he would always date stamp all interview documents with the date of the interview. In my view, if the composite spreadsheets and assessment sheets found by the Applicant on top of his desk were genuine documents, they would have at least had the school stamp on them based on the evidence of Mr Haricharan. On the other hand, the documents submitted to the HOD had the school stamp with the date of 09 March 2019. Even though this is not the date of interviews, it is highly probable that these were the correct documents when compared with the Applicant’s documents.
In light of the above, I am of the view that the First Respondent’s version about the interview documents is more probable than the Applicant’s version. The onus to prove the existence of an unfair labour practice lies with the Applicant, and I find that the Applicant did not discharge that onus. I therefore found that the First Respondent did not commit any unfair labour practice against the Applicant and his application falls to be dismissed.