29 May 2026 – ELRC363-25/26KZN

Case Number: ELRC363-25/26KZN
Commissioner: Sally-Jean Pabst
Date of Ruling: 28 May 2026

In the arbitration between

SADTU obo MS TAYARI NAIDOO
(the Applicant)

and

KWAZULU-NATAL DEPARTMENT OF EDUCATION
(the Respondent)
DETAILS OF HEARING AND REPRESENTATION

This dispute was referred to the Education Labour Relations Council (the ELRC) in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 (the LRA) – that of an alleged unfair labour practice relating to promotion. The matter was arbitrated via MS Teams on 16 October 2025, 20 November 2025, 29 January 2026, 20 February 2026, and concluded on 23 April 2026.
The Applicant, Ms Tayari Naidoo, attended with her representing SADTU union official, Mr Govi Moodley. Mr Itumeleng Makhooe represented the First Respondent, the KwaZulu-Natal Department of Education. The Second Respondent, Ms Shamitha Syed, was present and represented by her SADTU union official, Mr Nolan Pillay.
ISSUE TO BE DECIDED
I have to determine on a balance of probabilities whether the Respondent subjected the Applicant to an unfair labour practice as defined in section 182(2)(a) of the LRA.
If an unfair labour practice is confirmed, I must determine the appropriate remedy in terms of section 193, read with section 194, of the LRA – this in light of the Applicant’s expressed wish for the appointment of the 2nd Respondent to be set aside and the post re-advertised.
BACKGROUND
The Applicant, Ms Naidoo, has been in the employ of the Respondent, the KwaZulu-Natal Department of Education, since 2018. She currently occupies a Post Level 1 Educator position at Lotusville Primary in KwaZulu-Natal.
The Applicant applied for the post of Departmental Head Intermediate/Senior Phase Post 655 Lotusville Primary from HRM 20 of 2024, but was sifted out. As aforementioned, in relief the Applicant Applicant wishes for the appointment to be set aside and the post re-advertised.
A pre-arbitration conference had been conducted, minute of which was included in the matter file. The parties each submitted documentary evidence, of which it was agreed by the parties that the contents were what it purports to be.
The proceedings were conducted in English, with no language interpreter required by the parties. The arbitration was digitally recorded, and after the conclusion of the evidence the parties submitted closing arguments in writing.
SURVEY OF EVIDENCE AND ARGUMENT
In terms of section 138(1) of the LRA I conducted the arbitration in a manner that I considered appropriate in order to determine the dispute fairly and quickly, dealing with the substantial merits of the dispute with the minimum of legal formalities. In terms of s138(7)(a) of the LRA I therefore only include evidence I found particularly relevant in making a decision on the matter, by means of a brief summary.
Applicant’s Evidence
The Applicant, Ms Tayari Naidoo, testified under oath that her contention of an unfair labour practice emanates from the sifting panel of the Respondent not including her (not sifting her in) as candidate to be interviewed for Post 655 Departmental Head (HOD) Intermediate/Senior Phase at Lotusville Primary School in Durban, where she is already stationed. She acted in the position for 5 months prior to it being advertised in bulletin HRM 20 of 2024, so she is aware she is not automatically to be shortlisted, but the Principal’s validation of her Z83 application form was her assurance that everything was approved and correct on her application form.
The Applicant also contends that, at the time she completed her Z83 application, she “did not have enough time”. She had to complete it in 2 days. Nevertheless, in terms of the Principal’s validation she did not make use of the two-week extension of the application-deadline to either re-submit or improve her Z83 after she had to hurriedly complete her application in 2 days. She did not believe – although many fields on her form was incomplete – that she needed to resubmit or edit. She verily believes she should have been sifted in and interviewed in terms of the validation of her Z83 by the school Principal.
Albeit hearsay evidence, the Applicant avers a SADTU official told her she was sifted in at two other schools (Dawncrest and Pioneer), whereas her application was sifted in, but not at (her school) Lotusville, where she is an Educator. This shows inconsistency in the sifting process, and the appointment should be set aside and the post readvertised.
Also, there was a circular 8 received that indicated the Respondent acknowledges there were irregularities. After this circular SADTU on her behalf filed a formal grievance, but was one of many grievants about the very same issue at the grievance meeting. She was then informed that her application had been unsuccessful because of missing information on her Z83.
The Applicant used the newest version/template of the Z83 form, but did not get training on how to complete this form properly. The applicable Validating Officer – her school Principal – by validation signed that the application is acceptable – “she okay’d it”.
During cross examination it was pointed out that, on the Applicant’s Z83 application form, entire passages had been ‘blacked-out’ – entirely redacted –during the printing process. The Second Respondent’s representative, Mr Pillay, suggested that the Applicant completed the Z83 based on her current understanding at that time, without seeking further clarification. The Applicant did not dispute this.
The Applicant’s Z83 was compared to the Z83 of the incumbent who completed all sections fully and – where a section does not apply to her, wrote ‘N/A’ (not applicable) to indicate she noted the question as such. Particularly, the Applicant had failed to provide any References in section G, had failed to complete the latter part of section F requiring her to her making declaration in terms of any condition possibly existing which prevents her employment in the public sector, as well as she omitted completion of ‘Current study’. The Applicant conceded she did not complete these section, whereas the incumbent had completed all these sections. However, the Applicant challenged the relevance – the importance of completion because some of this information is in her view ‘obvious’.
It was put to the Applicant that the position of HOD which she applied for has a requirement for great precision and attention to detail, admin skills and management efficiencies, with pressures and deadlines. The Applicant was asked whether – based on the way she completed her Z83 – she would rate her own administrative skills as ‘good’ or ‘exceptional’ – to which the Applicant rated herself as ‘good’.
HRM Circular 8 of 2025 was tabled for discussion, in terms of the Applicant relying on this admission from the Respondent that there had been a “flouting of sifting processes”. The Applicant avers that she too had been prejudiced by her application sifted out. During cross examination it was pointed out to Ms Naidoo that the majority of the listed issues in the circular was not applicable to the omissions on her Z83- application as reasons why hers had been sifted out.
The Applicant concluded she had only 2 days to complete her Z83, but she conceded she was advised and aware that she may have utilised a 2-week extension to the deadline for applications, but she did not re-visit her application. It was her very first application with this Z83-form, but she did not seek further advice or assistance, nor venture to improve the application she already submitted, with that extra 2 weeks granted. She understood ‘validation’ as checking everything on / about the form and approving it. She understands her application has flaws, but it was ‘good-enough’ for other schools, but not for her school. She referred this ULP because she was not given an equal opportunity.
The Applicant called Ms Nicolene Hubraj to testify under oath that she as a Level 1 Educator was the Interview Committee Secretary for this recruitment process, as a teacher-representative member of the SGB. She had no training to do the job, and it was her first time participating in this role. The process, scoring and minutes were explained to her, with promises of future training, which never came to fruition. Further, that Mr Mjoli – the Deputy Chair of the SGB – and the scoring member of the Interview Committee (IC) and the Chair of the SGB was ‘not available’ at that time.
The witness testified to various irregularities in the process, which she observed, to which she did not intervene, however she noted this great with concern. When she was asked to remove from the minute statements by a union rep regarding irregular scoring, she raised issue, but was cautioned to not take her bosses on. She was discouraged from taking it further.
The witness conceded during cross examination that she “never dealt with the CV (application form) of this Applicant” – Ms Tayari Naidoo. Further, that she also did not stop the process at any time during noting all the alleged discrepancies and irregularities she testified to here – this because she “was only supposed to take minutes” and was discouraged from holding up the process. She disagreed that her credibility is questionable in that she selectively remembers CV-numbers and their faults, but not the date and attendants of the meeting she attended with the Circuit Manager.
The third witness of the Applicant, Ms Thandeka Nyawo, testified under oath that she is “an admin clerk at Woodview Secondary School with matric and computer-course and certificate for a government program and admin skills.” Herself and other staff members from her school (the school she is employed to work at) had been called upon to “sift in and out applications”. There were many people there whom she did not know, and she only knew that their Circuit Manager, Mr J Pillay, trained them all on how to sift CV’s (applications). He trained them to particularly use only the given criteria to sift applications in or out. Mr Pillay was there for most of the process, and she did not know who else were officials in charge there – only Mr Pillay.
During cross examination the witness confirmed her understanding, as confirmed by HRM20 of 2024 in evidence stating the CES is ultimately responsible for sifting, that the CES was ultimately responsible for that process she participated in. Also that the CES delegated the task to herself and the team of people she was part of, and who conducted the sifting of applications – also in terms of HRM20. Ms Nyawo confirmed that Mr Loshosi is the CES, but to her knowledge Mr Loshosi was not present at the sifting. However, this is her belief only because Mr J Pillay was the only official who introduced himself as the delegate of the Respondent, to her knowledge. If Mr Loshosi was there, then he did not introduce himself. There were very many applications and so many people, and many of the people there she did not know or recognise. She also confirmed the team conducting the sifting all double-checked their own CV-applications, listed them, and placed them in a box – thereafter she has no knowledge of what further happened to these CV-applications.
The witness confirmed that she does not know the Applicant, Ms Tayari Naidoo, nor did she know any of the other candidates who’s CV’s she sifted. “We are not allowed to siv people of our own school – whom we know.”
Respondent’s Evidence
The Second Respondent called Ms Monica Naidu, who testified under oath that she is the Lotusville Primary school Principal – that the Applicant and Second Respondent are Educators at her school. Further that she was the resource-person for this Post 655, and that she received and validated the CV’s of candidates who applied for Post 655. She wished to state that her testimony in this arbitration would be entirely unprepared – that she was called upon to testify to the extent of her intervention on the application-forms she verified.
Ms Naidu explained during cross examination her understanding that she is only to check (by validation and verification) certain specific fields of the Z83’s – that the person subsequently sifting applications is to check the other fields for completion and verification. She was the ‘Validating Official’ and the Applicant’s application was on time and therefore not rejected – also, Ms Naidoo did meet the minimum requirements. She validated and returned it to the Applicant. The witness insisted she only verifies what is within her powers to verify. She does not know about whether an application she validated can still afterwards be sifted out.
The documents arrived on 17 September, and 4 October was the first closing date. Then an extension until the 18th of October was granted. There was a school holiday for 2 weeks. A staff-meeting notified everyone of the extension and staff was allowed to send new applications in – around 10 October she informed all of her staff of this. During that extension she does not recall Tayari Naidoo bringing her another application to verify.
Notice of the Interview-Committee (IC) training workshop was circulated to all SGB members – notification on 1 December, for the training on 7 December. The witness disagreed that Ms Nicolene Hubraj was not invited to the training – “No, she was invited, as per the WhatsApp.”
Ms Naidu testified that there were many duplicate CV’s, and they did not read them all. She disagrees with Ms Hubraj having testified that the duplicates were read and scored – “Not correct, they were only read once and scored once. Hubraj is not correct.”
A full SGB convened and an IC was selected. She gave all the applications to the IC. As they read out the CV’s, duplicates were removed, as they went through it. There was an invalidated CV in the bunch. The witness confirmed she attended training on the HRM20 of 24 – training for about an hour or two, where only salient points were discussed. She is confident in her abilities and training for this process. “It succeeded a previous version.” She only checks and verifies what she must in terms of the HRM circulated via WhatsApp. She is very sure that it is not for her to answer whether – when she validates a CV – afterwards it “must be sifted in” despite empty fields. She looked at both the HER-7 and the Z83, and only validated the things in 5.7.1 – the absence of references on the reference-list on Tayari’s Z83 was not for her to judge in terms of 5.7.1 – it is not her role to judge that part.
Ms Francisca Thandi Zibane, the second witness of the Respondent, testified under oath that she too is an unprepared witness. She is the Branch Secretary of SADTU, locally. They use a WhatsApp group to communicate with SADTU members. She disagrees with the Applicant’s testimony that there had been no CV-writing training, to complete the Z83. She referred to the notice of CV-writing workshop on 2 October 2024 at 13h30. She confirmed this notice was sent via the WhatsApp group to all members, including the Applicant, and that Mr Bako was the facilitator of the training.
During cross examination the witness Ms Zibane confirmed that the Applicant left out answers and had areas blanked out, and for this reason her application was sifted out. The Applicant was definitely invited to the training, and she could have attended if she wished to or asked for the material or recording, if she was not available because the notification was on short notice. The Applicant never queried the Z83, nor asked for assistance.
The last witness for the Respondent, Mr Siyabonga Simon Lushozi testified he is the Chief Edu Specialist (CES) of the region, since 2015. That he collects applications, oversees sifting, and allocations to schools, and so forth. Generally, the applications either sifted in- or out- is open for discussion with unions. However, for this post there had come no formal objection raised regarding the sifting out of Ms Tayari Naidoo’s application from SADTU, who moved for the adoption of the process, and accepted it fully. Neither SADTU, nor the Applicant, objected.
Later the Applicant and her union representative Mr Govi Moodley came to him and asked why she had been sifted out, and he explained that the application is incomplete – “She left all these very important things out.” The Applicant also did not provide him with information showing it was ‘human error’.
During cross examination it was put to Mr Lushozi that the Applicant claims – as per HRM20 of 2024 – that she should have been sifted in in terms of having been validated by her school Principal. Mr Lushozi disagreed – “No, validation is not sifting – these are different things – validation is only the checking of 5.7.1.1 to 5.7.1.6”.
To the Applicant’s representative claiming her CV was sifted in elsewhere, Mr Lushozi responded “No, a wrong can not fix another wrong. If she was sifted in elsewhere, the process should be re-done to sift her out. We seek procedural fairness.”
Further, he testified “The Applicant was sifted out because the Validating Officer was just to check for correctness of the information listed for validation, not to complete the form for the Applicant. Validify the information regarding whether it is her correct surname and initials, post reference number, her Educational; Qualifications, REQV, her present post held, SACE Registration – if these are correct, it is validated.
ANALYSIS OF EVIDENCE AND ARGUMENT
I have considered all of the evidence and argument lead by the parties in coming to my decision on this matter. The Applicant is claiming an unfair labour practice by the Respondent in terms of 186(2)(a) of the LRA regarding promotion, defined as follows in the Act:
“(2) “Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving –
(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee; …”
The LRA requires employers to treat their employees with fairness when they apply for promotion. An employee who alleges to be the victim of an unfair labour practice bears the onus of proving all of the elements of the claim on a balance of probabilities.
It is common cause that Ms Naidoo was unsuccessful after applying for the promotion post of HOD at Lotusville Primary School, where she is an Educator. The Applicant in this matter must prove – not only the presence of a unfair labour practice – but also that the labour practice was unfair conduct by the Respondent.
The testimony of the Applicant suggested that there were many flaws in the processes of the Respondent, in general. This was conceded by the Respondent, in an evidenced Circular. Nevertheless, the Applicant is duty bound to show that she was unsuccessful due to specific unfair conduct by the Respondent which specifically affected her application and excluded her.
The Applicant focused on the asterisk-inclusion of section B of her Z83 but this section seems to not exclude her, as her passport-number and work permit left out is clearly not relevant to her, as the guide to the left of the form indicates.
The Applicant pointed out that some forms (templates) have 12 months required acting, and others have 24 months acting required to automatically have her sifted in. However, during cross-exam it became clear that, seeing as she had 5 months acting in the position, that whether the form required 12 or 24 months for automatic inclusion (sifting in), it would have made no difference in her application because she had only 5 months acting in the position. This evidence was therefore disregarded in its totality. Other factors raised met the same conclusion.
The Applicant also stated she was ‘pressed for time’ when conceding she did not list her references. This I find most unfortunate – that she did not at the very least include her correct and previous Principals’ details here. The Applicant further omitted answering two very important questions pertaining to disclosing any previous misconduct or reasons why she should not be appointed, which seemingly her printer ‘blacked out’ – she did not take the time to find out what these questions were, and rectify her omission in any way.
The Applicant’s and the incumbent’s Z83’s at one point during cross examination of the Applicant were placed alongside each other, at which point there came from the Applicant an objection to the two applications being so starkly compared. She contended it as not in the best interest of a pleasant ongoing collegial relationship between herself and the incumbent to so blatantly compare their applications. To this, Mr Makhooe referred the Applicant to paragraphs in the “Collective-Agreement-No3-of-2016-ELRC-Guidelines-Promotion-Arbitrations” stating her obligations in alleging and proving an unfair labour practice in Section F: paragraph 31-36, in light whereof the Applicant must, barring proving she was the best of all the candidates, at the very least show that there was conduct that denied her a fair opportunity to compete for the post – conduct that was arbitrary or unacceptably motivated, or the successful candidate was dishonest or misleading during the application process.
In summary, Ms Naidu testified that the validation process she conducts includes only the items listed in 5.7.1 – not the rest of the form. She does not invalidate in terms of any aspects not included in 5.7.1. She had explained that the rest of the process was normal and training was given to the IC committee members – 1 dec notified for 7 dec training.
In summary, Ms Zibane of SADTU’s evidence was that the Applicant was – however short the notice– invited to attend training on how to complete her application forms. If she had wanted to, I reasonably believe she could have asked a recording thereof, if she could not attend at short notice. But she did not and she did not seek assistance, a confirmed by Ms Zibane, nor use the extra extension-time given to submit a properly completed form.
Ms Nyawo testified that her school had been one of the schools selected to ensure people does not sift for their own school – to ensure their impartiality in the process – different schools from the school(s) recruitment is being done for.
The Applicant’s claim to unfairness is based on her contention that – because she had been apparently sifted in at two other schools, she should have also been sifted in at her own school. This presumes she used the exact same incomplete application-form for the other schools’ applications, which evidence was not before me, but I must agree with Mr Lushozi’s testimony that the Applicant’s form placed before him was incompletely filled in and therefore could not be sifted in, even if it had elsewhere, because ‘two wrongs don’t make a right’. Mr Lushozi had explained that in any school where this Z83 was indeed sifted in, such decision should have been reviewed. Mr Lushozi also read into evidence instructive requirements in the left-hand margin of the Z83, which states very clearly that it is the form completion is the Applicant’s responsibility. Mr Lushozi witness testified that validity and sifting is not the same thing – that the Principal / Validating Officer must check the correctness / accuracy of specific aspects in 5.7.1.1 to 5.7.1.6 only – not checking full completion of the rest of the form, which is the job of the sifting team, and this rings true in terms of the evidence lead from HRM20 of 2024. Mr Lushozi added that sifting – in terms of an already validated application – will also not even check whether her surname and initials, post reference number, education qualifications, REQV, present post held, SACE registration, and so forth is correct, because this information specifically was already validated by the school Principal. Similarly, the Principal would logically not perform checks due to be done during sifting.
In my view, the Applicant was obligated to at the very least cross her own t’s and dot her own i’s before claiming that the conduct of the Respondent unfairly deprived her of an opportunity to compete for the post. The Applicant omitted answering very important questions, and I can unfortunately not accept that she had been too ‘pressed for time’ and simply did not believe various information ‘relevant’ or too obvious to complete. Her application was important enough to lodge this dispute for, and it should at the very least have been similarly important to her at the time of completion to take the time to write the details of references, and to write ‘N/A’ to indicate she noted and did not ignore certain questions, in showing diligence and commitment even if she considers it kafkaesque.
While the Applicant was cross examined by the Second Respondent, it became clear she in fact had an extension on her apparent 2 days to complete her application, but she did not venture to use a 14-day extension thereafter. The Applicant did not investigate nor venture to have the pages with redacted passages reprinted, nor did she query what is underneath the redactions. She simply failed to complete the sections because of the redacted passages. In my view the Applicant displayed – whether this observation of mine is in fact true about her, or not, stands to be reasoned – a tardiness and lack of attention to detail unbecoming of a strong candidate wishing to impress a panel towards a promotion. Her Z83 was one of many, and leaving out things and stating “I assumed…” -this and “I assumed they would…” -that, is simply not acceptable when competing with others for a job.
In Mbatha V SSSBC & others (LC) JR372/13, (30 September 2015) the Labour Court commented on the applicable test for unfair labour practice disputes, at para 28:
”It has long been accepted that the decision to promote or not to promote falls within the managerial prerogative of an employer and that the courts will interfere only where such discretion was exercised capriciously, or for insubstantial reasons or based upon a wrong principle or in a biased manner.”
Holistically considered, I can only deduce that Ms Naidoo was not unfairly denied an opportunity to compete for the promotion post. The Applicant had, at the very least, been given a fair opportunity to compete for appointment in the post, she should have paid attention to details, and used the extension and informative/training resources. I therefore conclude that the Respondent did not commit an unfair labour practice as defined in s186(2)(a) of the LRA.
AWARD
The Applicant, Ms Tayari Naidoo, was not subjected to an unfair labour practice in terms of promotion as provided for in section 186(2)(a) the Labour Relations Act 66 of 1995 (the LRA), by the Respondent, the KwaZulu-Natal Department of Education.