27 November 2025 -ELRC229-25/26

Commissioner: VEESLA SONI
Case No.: ELRC 229-25/26 Date of Award: 24 NOVEMBER 2025

In the ARBITRATION between:

NAPTOSA OBO KRIBASHINI MOODLEY Applicant

and

THE DEPARTMENT OF EDUCATION: KWAZULU NATAL First Respondent
SADTU OBO Ms T F NXUMALO Second Respondent
SADTU Ms M T HLOPE Third Respondent

Union/Applicant’s representative: NAPTOSA – Ishara Danook
Durban

First Respondent’s representative: DOE – Intumeleng Makhooe
Pinetown

Second Respondent: SADTU – Mr Hlope
Appointees T F Nxumalo and M T Hlope

DETAILS OF HEARING AND REPRESENTATION

The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the
“ELRC”) in terms of Section 186 (2) (a) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for arbitration on the 14 November 2025. The matter proceeded and was finalized.
The Applicant, Ms Kribashini Moodley was present and was represented Ms Ishara Danook from NAPTOSA. The First Respondent was represented by Mr Makhooe from the Department of Education in Kwa Zulu Natal. The Second and Third Respondents, were represented by Mr Hlope of SADTU.
The proceedings were heard in person on 14 November 2025 and was finalized the same day.

ISSUE TO BE DECIDED

The issue in dispute was whether the Respondent committed an unfair labour practice, in respect of promotion, when they failed to shortlist the Applicant.

BACKGROUND

The background of the matter was that the Respondent advertised a position of a Deputy Principal’s post and departmental head, at Lyndhurst Primary School, for which the Applicant applied. The post was advertised in terms of HRM 20 of 2024 for which the 2nd and 3rd Respondents, Ms Nxumalo and Hlope also applied and they were appointed. The Applicant challenged the decision by the Department by sifting out her curriculum vitae (CV) for the post.
The following facts were common cause and not in dispute:
• The applicant applied for the post
• The Applicant was sifted out on the basis that the old Z 83 was used,
• A circular was issued on 21 February 2025, by the Department regarding the consideration of the old and new Z 83 forms.
• The HRM did not have the Z 83 form attached.
• It was common cause that the selection process was complete at Lynhurst Primary at the time the circular was issued.
• At the time the circular was issued the Applicant was sifted out
The crisp issue for determination was the interpretation of clause 7 of HRM Circular 8 of 2025. The parties agreed to submit written arguments on the interpretation and applicability of the said section. There was no dispute of fact and the only issue was how the above clause should be interpreted. The question was whether it included or excluded her.

APPLICANT’S CASE

Ms Dhanook argued that the Applicant should have been considered on the old Z 83, based on HRM Circular 8, issued by the Department.
The Applicant was a senior educator with 33 years of service at Lyndhurst Primary School. At the time of application, she was acting in the Departmental Head position. She applied for both Post 549 (Departmental Head) and Post 593 (Deputy Principal) under HRM Circular No. 20 of 2024. The official Z83 application form was not included in the bulletin. The Applicant obtained the Z83 form from the school Principal, who acted as the representative of the Head of Department at the school level. The Principal validated the application before submission to the District Office. It was common cause that the Applicant was sifted out at the District level, on the basis that she used the “old” version of the Z83 form.
It was also common cause that a grievance was lodged on the 16 January 2025, and was dismissed by the District Grievance Committee. On 21 February 2025, the Department issued HRM Circular No. 8 of 2025, which explicitly directed that applications must not be sifted out for using the old Z83 form.

11.The Department argued that the circular only applied to posts still at the sifting/shortlisting stage as of the date of the circular. It was submitted that the grievance was lodged before the date of the circular. It was argued that this directive confirmed that the Applicant’s application was valid and should have proceeded to shortlisting.

It was submitted that the Department’s reliance on paragraph 7 of HRM Circular No. 8 of 2025 to exclude posts already sifted was arbitrary and discriminatory. The circular states:
“The halting of selection processes applies to posts that are still at the sifting and shortlisting stages by the date of issuing of this circular.”
This clause created an unjust differentiation between applicants based on administrative timing, which was beyond the control of the Applicant. The lack of uniformity across districts and schools exacerbated this unfairness.

14.The ELRC published Guidelines for sifting, shortlisting & interview procedures which set out the procedural expectations for fair verification and sifting and were a primary source to ensure that sifting had to be conducted consistently and on substantive grounds. The DPSA has also issued a circular clarifying operational challenges with the Z83 and urged consistent treatment of Z83 completion across departments.

It was argued that the Applicant suffered significant prejudice due to the Department’s actions. She was denied the opportunity to be considered for promotion despite meeting all minimum requirements and acting as a Departmental Head role. Her applications were excluded for a reason later deemed invalid by the Department itself. The timing of the sifting process, which varied across districts, unfairly disadvantaged her. The Applicant was unfairly excluded from consideration for promotion due to an administrative error that the Department later acknowledged and corrected. The arbitrary limitation of the corrective directive to future processes perpetuated the injustice against her.
The Applicant requested for the following relief:
• That the appointments to Posts 549 and 593 at Lyndhurst Primary School be set aside.
• That the selection processes for these posts be redone from the sifting stage.
• That the Applicant’s applications be sifted in and forwarded to the school for shortlisting.
• That the ELRC issue a declaratory order confirming the procedural irregularity and unfair labour practice committed by the Department.

1st RESPONDENT’S CASE

Mr Makhooe submitted that there was an outcry from the unions which prompted the issuance of HRM Circular No.8 of 2025. All educator unions within the jurisdiction of Kwazulu-Natal convened a meeting with the Head of Department, Mr GN Ngcobo. The outcry was as a consequence of mass exclusions of applications (sifting out) on the following grounds: usage of old Z83 form, electronic initialling, omission of passport number, non-invite of unions. The Department committed an error by not attaching a Z83 form to the HRM Circular No.20 of 2024. The afore-going grounds were reversed in terms of HRM Circular No.8 of 2025.
The period to deal with the applications of the posts whose numbers were affected was from 21 February 2025 (See date of issue of the circular) to 26 February 2025. The Applicant was one of the candidates who used the old Z83 form. The selection processes at her school were already completed as at the date of issue of the circular. As such, it was argued that clause 7 of the circular precluded her from benefiting the granted advantage.
It was submitted that the literal meaning of the words in the circular had to be followed. The objective or and intention of the parties had to be considered. The parties intended to grant relief to applications within a specified time frame, until 26 February 2025.
It was submitted that if the Applicant was granted an indulgence it would open the floodgates to all applicants in the selection process. As at 21 February 2025 Lyndhurst Primary School selections process were already completed. Clause 7 of the circular unequivocally makes that provision. Mr Makhooe requested that the application be dismissed.

ANALYSIS OF EVIDENCE AND ARGUMENT

This dispute is referred as an unfair labour practice. An employee who alleges that he or she is the victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities. The employee must prove not only the existence of the labour practice, but also that it is unfair.
The Applicant is required to do more than just demonstrate that she has the minimum advertised qualifications and experience. She must allege and prove that the decision not to appoint her was unfair. This goes beyond mere unhappiness or a perception of unfairness. The issue of fairness depends on the circumstances of a particular case and essentially involves a value judgement.
The First Respondent advertised the position of a Deputy Principal’s post and Departmental Head, at Lyndhurst Primary School, for which the Applicant applied. The post was advertised in terms of HRM 20 of 2024 for which the 2nd and 3rd Respondents, Nxumalo and Hlope also applied and they were appointed. The Applicant applied for the post and used the old Z 83 form. It was common cause that the advice, as to which form had to be completed, was furnished by the principal of the school. There is no dispute in this regard. It is also immaterial whether the forms were similar in nature, the old Z83 and new Z 83 forms.
The Applicant claimed that she met the essential requirements and the Respondent committed an unfair labour practice by sifting out her CV, as the old Z 83 form was used. A grievance was lodged in respect of the process. This was also common cause.
The Applicant sought the setting aside the appointment of the 2nd and 3rd Respondents and requested for the process to start afresh from shortlisting. The Applicants claim was based on the fact that HRM Circular 8 of 2025, dated 21/02/2025 was released. I will make reference to the applicable clauses in the said circular:
Clause 4: Noting the above a directive is given to all officials responsible for these processes to ensure the following is strictly adhered to:
a) applications must not be sifted out based on the fact that the applicant has used the old Z 83 form
b) applications must not be sifted out based on the fact that the applicant initialed the Z 83 form electronically
c) applicants who are South African citizens should not be sifted out based on the fact that they did not provide passport numbers.

Clause 7: the halting of the selection processes applies to posts that are still at the sifting and shortlisting stages by the date of issuing of this circular.

The onus rested on the Applicant to establish that the conduct of the 1st Respondent denied her a fair opportunity to compete for a post, alternatively that the conduct, by sifting out her CV was arbitrary or motivated by an unacceptable reason.
The arbitration of a promotion dispute does not entail a hearing de novo, but an assessment of the employer’s decision. I turn to the test as laid out in Sidumo v Rustenburg Platinum Mines Ltd & Others [2007] 12 BLLR 1097 (CC), which is a landmark case in South African labour law. The Constitutional Court held that the test in promotion disputes, was that the arbitrator is not given the power to consider afresh what he would do but to decide whether what the employer did was fair.
Applicant’s argument was based on the fact that on 21 February 2025, the Department issued HRM Circular No. 8 of 2025, which explicitly directed that applications must not be sifted out for using the old Z83 form. Mr Makhooe argued that the circular only applied to posts still at the sifting/shortlisting stage as of the date of the circular. It was submitted that the grievance was lodged before the date of the circular. It was argued by Ms Danook that this directive confirmed that the Applicant’s application was valid and should have proceeded to shortlisting. I accept this version but find that it was subject to the terms and conditions of the said Circular, being Circular 8 of 2025.
It was argued by the Applicant that the Department’s reliance on paragraph 7 of HRM Circular No. 8 of 2025 to exclude posts already sifted, was arbitrary and discriminatory. No doubt, that due to the proviso, on the stage of the process, the Applicant suffered significant prejudice. She was indeed denied the opportunity to be considered for promotion, despite meeting all minimum requirements and acting as a Departmental Head role. I accept that she was excluded for a reason later deemed invalid by the Department itself.
The timing of the sifting process, which varied across districts, excluded her. The Applicant argued that she was unfairly excluded from consideration for promotion due to an administrative error by the Department which they later corrected. It was further argued that the arbitrary limitation of the corrective directive to future processes created an injustice and unfair treatment to the Applicant.
The Respondent accepted that the old Z 83 form was considered in terms of HRM Circular No. 8 of 2025. This circular however placed mandatory time limits which could not be ignored. In the instance of the Applicant, the sifting and shortlisting had already been completed. As such, the circular did not apply to her.
An arbitrator is not the employer and it is not my task to decide whether the employer has arrived at the correct decision. The role of the arbitrator is to oversee that the employer did not act unfairly towards the candidate that was not promoted. As I have previously stated the decision to promote or not to promote falls within the managerial prerogative of the employer. In the absence of gross unreasonableness or bad faith or where the decision relating to promotion is seriously flawed, such a decision should not easily be set aside.
The courts have held that even if there was unfair conduct by an employer during a promotion process, this does not mean that there is substantive unfairness. Substantive unfairness cannot exist in abstraction. The Applicant needs to establish a causal connection between the irregularity or unfairness and the failure to promote, which means that, but for the irregularity or unfairness, he would have been appointed to the post, as laid out in Woolworths (Pty) Ltd v Whitehead (2000) 21 ILJ 571 (LAC) para 24 per Zondo AJP. In the matter before me the 1st Respondent sifted out the Applicant’s CV. This was not improper or capricious. It was based on the fact that according to the school, the incorrect form was completed. It was only on 21 February 2025 HRM Circular 8 of 2025 was issued. In that circular, the department directed that all applications that used the old Z 83 forms had to be considered. This clause was not a stand-alone instruction but had requirements. One such requirement, which was highlighted in the circular was: “the halting of the selection processes applies to posts that are still at the sifting and shortlisting stages by the date of issuing of this circular.”
In this instance by the time the circular was released the process of shortlisting was already completed at the school. The halting of the process could not be done as the post was not at the sifting and shortlisting stage. I find that the circular was corrective in nature. It required the Department to consider the older Z 83 forms. I find that the timing in the circular did prejudice the Applicant, but it was not arbitrary or capricious. There was an implementation of a directive in that circular and unfortunately the Applicant had already passed the cut off stage. This limitation was applied across the board and not particularly to the Applicant. It was unfortunate because if the process was delayed by the school, the Applicant’s CV would not have been sifted out. I commiserate with the Applicant, but as an arbitrator it is my role to interpret the meaning of clause 7 of the circular.
Clause 7, as listed above, was conditional. The condition prescribed when the process could be halted for incumbents to be considered on the old Z 83. In this case the shortlisting had been completed and as such the circular did not apply to the Applicant.
I find that there was no unfair labour practice.

AWARD

The application of the applicant, Kribashini Moodley, is dismissed and I find that the Respondent, the Department of Education: KwaZulu Natal, did not commit an unfair labour practice.