IN THE ELRC ARBITRATION
BETWEEN:

NAPTOSA obo Hastings, LC the Applicant”
and

DEPARTMENT OF EDUCATION – KWAZULU-NATAL 1st “Respondent”
SAOU obo Mostert, A 2nd “Respondent”

ARBITRATION AWARD

Case Number: ELRC394-25/26KZN

Date of submission of closing arguments: 02 December 2025
Date of award: 12 January 2026

NTOMBIZONKE MBILI
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
The General Secretary
ELRC Building
Private Bag X126
Centurion

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration commenced on 08 September 2025, proceeded on 13 October 2025 and was finalised on 11 November 2025.
2. In order to expedite the matter, the parties agreed that the matter should proceed as a stated case. The Applicant submitted its stated arguments on 14 November 2025, the first and second Respondents responded on 21 November 2025 and the Applicant replied on 02 December 2025.
3. The arbitration was initially held online, and proceeded physically at the Empangeni office of the KwaZulu-Natal Department of Education.
4. The Applicant was represented by Mr Rishal Juguth from NAPTOSA. The first Respondent was represented by Mr Thabani Mchunu, and the second Respondent was represented by Mr Tiaan Beukes from SAOU.
5. Bundles of documents were submitted on behalf of the Respondent and the Applicant respectively.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

6. The arbitration is in respect of a referral by the Applicant of an alleged unfair labour practice as provided for in section 186 (2) of the Labour Relations Act 66 of 1995 (LRA) relating to Appointment/Promotion.
7. I am required to decide whether the first respondent committed an unfair labour practice by failing to promote the applicant to the position of principal at Veldenvlei Primary School.

BACKGROUND

Common Cause Facts

8. Post number 371 was advertised in HRM 20 of 2024. The post description pertains to the principal position at Veldenvlei Primary School.
9. The Applicant applied for the post however was not shortlisted and the second respondent was appointed to the post on 02 June 2025.

SUMMARY OF ARGUMENTS

The Applicant’s case

10. The applicant contends that she was the most suitable candidate for the position. At the time of application, the applicant had 27 years 10 months experience in education; of which, 21 years 3 months were managerial, 9 years 9 months were served as a School Principal (PL4).
11. The second respondent had 12 years teaching experience; of which, 7 years 8 months were managerial.
12. The second respondent was appointed by the respondent despite having less experience and shorter tenure in leadership roles.
13. The Applicant’s case is that she was not appointed despite being the best candidate given the inherent skills, institutional knowledge she possesses, and that the second respondent did not possess the same / similar skills, yet she was appointed. (ELRC Collective Agreement 3 of 2016, Par 8).
14. Upon request for the bundles of documents pertaining to the matter from the respondent, it was discovered that certain relevant documents had gone missing from the school. The respondent provided a written affidavit from the school to support this allegation. Such a discovery is of grave concern, considering that the school is the custodian of such documents and is entrusted with the safekeeping thereof. The missing documentation allegedly includes the applicants EHR7/application form.
15. In terms of ELRC Collective Agreement 3 of 2016: An employee who alleges that he is the victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities.
16. The employee must prove not only the existence of the labour practice, but also that it is unfair. It is highly questionable that, out of all the documents under the school’s safekeeping, only those relevant to this case have gone missing.
17. No reasonable or justifiable explanation was given from the school as to how, when or why these documents cannot be accounted for.
18. In terms of paragraph 7 of HRM 20 of 2024, the employer is responsible for acknowledging receipt of all applications received within the Circuit/District. The applicant did not receive such an acknowledgement either.
19. The school contends that the applicant’s CV was among the documents which are now missing. No evidence exists on the record to show that the applicant’s CV was received by the panel, that it was considered, or that the scores attributed to the applicant were derived from an objective assessment of submitted materials.
20. The applicant therefore suffers prejudice by not being able to compare her CV against that of the second respondent as well as other shortlisted candidates. The loss of such significant documents have denied the applicant her right to a fair arbitration.
21. It is therefore questionable whether the applicant’s application was received, scored, or fairly considered and this casts serious doubt on the integrity and validity of the entire process.
22. The school had exclusive control of the shortlisting records and the selection panel’s scoring sheets.
23. Since the employer cannot produce the very documents that would demonstrate compliance, the applicant asks the arbitrator to treat their absence as evidence that the process was unreliable.
24. The applicant’s original Z83, EHR7, and supporting documents were submitted and signed for on 03 October 2024 but later went missing. No explanation or investigation was provided and no formal inquiry or police report was initiated to account for the missing documents.

The Respondent’s Case

25. The Department acknowledged that the process was marred with missing documents after the process was completed, the process was procedurally and substantively fair, and that the Applicant has failed to prove any unfairness – much less a violation of her rights as contained in section 186(2)(b) of the Labour Relations Act (LRA).
26. She claimed that she was unfairly excluded from the process or that the process itself was flawed to the extent that it warrants overturning the appointment.
27. In promotional disputes such as this, the onus is on the Applicant to demonstrate on a balance of probabilities that she was treated unfairly and that she is the best suitable candidate for the post. Unfortunately, something that she has not been able to do.
28. While the Applicant raises concerns over missing documents and questions the integrity of the process, there is no evidence to suggest that the Applicant’s CV was not considered and that the appointment process was anything other than fair and transparent, nor that the Applicant was denied a fair opportunity to compete for the position.
29. The Applicant claims that she was the best candidate for the role, based on her qualifications and experience, and that she was unfairly excluded from consideration which resulted in an unfair labour practice. However, the selection was made based on a comprehensive assessment of all candidates, not solely on years of experience.
30. The Applicant’s concern that her application was not fairly considered stems from the loss of certain documents. The loss of documents, while regrettable, does not automatically undermine the fairness of the process. It does not mean that the Applicant was denied the opportunity to compete fairly or that the appointment was unfair.
31. The Applicant has not proven that the loss of these documents was deliberate or that it had any material effect on her application.
32. The missing documents, including the CVs and scoring sheets, were under the control of the school. However, the Respondent has presented a sworn affidavit indicating that the documents were lost in the course of handling and safekeeping. While this is regrettable, it does not automatically imply foul play, nor does it lead to the inference that the Applicant was unfairly treated.
33. In Noonan v Safety & Security Sectoral Bargaining Council & Others (2012) 33 ILJ 2597 (LAC): “Mere mistakes or errors in evaluation do not constitute unfairness unless bad faith, bias, or discrimination is shown.” The Applicant has failed to meet this threshold.
34. In Department of Home Affairs v Ndlovu & Others (2014) 35 ILJ 3340 (LAC): “Where evidence is missing or incomplete, an adverse inference may only be drawn where a party was deliberately evasive or acted in bad faith.” In this matter, the Employer presented An affidavit explaining the loss, Evidence that the school attempted to reconstruct what documents it could, No evidence of intentional destruction or bias. The Applicant has not proven that Her application was not considered; The loss of documents was deliberate; or The missing records affected the outcome.
35. In MEC for Education: KwaZulu-Natal v Khumalo (2014) 35 ILJ 613 (CC), the Constitutional Court held that administrative errors—while regrettable—do not automatically invalidate a process unless they result in material unfairness. The Applicant has shown none.

Second Respondent

36. The applicant’s assertion that she was “the best candidate” is unfounded and unsupported by any objective evidence.
37. HRM 20 of 2024 stipulates that the scoring of CVs must be based solely on four criteria:
     Leadership: Administrative, management, and related experience;
     Organisational ability and experience;
     Professional development, educational experience, interests, and insight;
     Leadership within the community.
38. Qualifications and years of service are not part of the scoring criteria and therefore cannot be used as a basis to claim superiority.
39. The scoring process further allows evaluators to interpret information presented during the session.
40. The applicant claims to have received no acknowledgement of receipt of her CV and further alleges that no proof exists showing that her CV was submitted to the school. Despite this, she argues that her CV was scored unfairly. This contradiction raises serious doubt: if she cannot prove that her CV was ever received or scored, she cannot simultaneously claim that it was scored unfairly, without any proof.
41. Nowhere in clause 7 of HRM 20 of 2024 is it stated that it is the responsibility of the school to acknowledge receipt of CVs to candidates.
42. Had the documents been available and the applicant’s CV been compared to the scoring outcomes, this case would likely have been dismissed at the outset.
43. The burden of proof in a ULP dispute concerning promotion rests on the Applicant. The Applicant failed to provide sufficient proof to substantiate her claim.
44. Not all documents are missing; therefore, it is incorrect to suggest that there was total non-compliance.
45. We dispute the claim that the loss of these documents has caused any prejudice to the applicant.

Applicant’s Reply

46. The Applicant rejected the First Respondent’s assertion that the loss of documents constitutes a mere administrative error.
47. The selective disappearance of documents central to the Applicant’s case—including her CV, EHR7 application form, and scoring sheets—raises suspicion of deliberate avoidance of scrutiny.
48. The Department, as custodian of all promotion-related records, bears the responsibility to safeguard and produce these documents. Their absence fatally prejudices the Applicant’s ability to prove her case.
49. Without tangible proof that Mrs Hastings’ CV was received, considered, and scored, the Applicant cannot be said to have been afforded a fair opportunity to compete.
50. The Applicant conceded that years of experience alone do not guarantee promotion. However, experience informs the depth and breadth of leadership, institutional knowledge, and professional competence reflected in a candidate’s CV.
51. The Respondent’s claim that the appointment was based on a “holistic assessment” cannot be substantiated in the absence of the very documents that would prove such an assessment occurred.
52. The Applicant further submits that the employer’s claim that the appointment was based on “what the school needs” is unsupported, as nowhere in the minutes is there any record of what the school’s specific needs were. One must therefore assume that the only requirements were those expected of any principal.
53. The Second Respondent argues that qualifications and years of service are not part of the scoring criteria. The Applicant concedes this point but emphasizes that her CV contained extensive evidence of leadership, organisational ability, professional development, and community involvement—all directly relevant to the criteria.
54. Specifically, under the criterion “Professional development, educational experience, interests and insight,” qualifications and experience are directly relevant and can be used as a basis to claim superiority.
55. The Second Respondent argued that the Applicant cannot claim her CV was scored unfairly if she cannot prove it was received. This highlights the very prejudice caused by the loss of documents.
56. The Applicant further disputed the Second Respondent’s claim that the school was not required to acknowledge receipt of CVs. Clause 7.1 of HRM 20 of 2024 clearly places responsibility on the employer to acknowledge receipt of applications.
57. The Applicant disputed the Second Respondent’s claim that she should have known of the process due to her union involvement. Representation at the institution is determined by majority membership, and SAOU was present, not NAPTOSA.
58. The Applicant sought to Declare that the Respondent committed an unfair labour practice as defined in section 186(2)(a) of the LRA; b. Set aside the appointment of the Second Respondent and order that the process be redone by a new, independent committee; Alternatively: c. Award the Applicant just and equitable compensatory relief for being denied the opportunity to compete fairly for the post. Analysis of the Evidence
59. The dispute before me concerns itself with a claim of unfair labour practice allegedly committed against the applicant by the first respondent. It is alleged that the first respondent committed this unfair labour practice when the applicant was not short listed and appointed into the post at Veldenvlei Primary School
60. The Applicant claims she was the victim of an unfair labour practice relating to promotion in terms of section 186(2) of the LRA because she was objectively the best candidate based on superior experience and that the selection process was fundamentally flawed and unfair due to the disappearance of critical documents (her application form, CV, scoring sheets), which prevents a proper review and suggests possible foul play.
61. The Respondent on the other hand argues that the process was fair and the best candidate was appointed based on a holistic assessment against set criteria and that the loss of documents is an unfortunate administrative error that does not, by itself, prove unfairness or invalidate the outcome. The respondents further augured that the Applicant has failed to discharge her onus of proof to show unfairness on a balance of probabilities.
62. This is a unique, the respondent claims to have misplaced important documents that support their case. In terms of section 31 of the Basic Conditions of Employment Act, employers must retain records for three years after the last entry. Maintaining these records is crucial for ensuring compliance and resolving conflicts. It has been hardly one year, and the employer has failed to keep documents which are the foundation of their argument.
63. According to the ELRC Collective Agreement 3 of 2016, the burden of proof falls on the Applicant to demonstrate both the occurrence of a labour practice and its unfairness. The only available perspective is that of the Applicant, who asserts that she met the qualifications, was the top candidate for the position, and should have been shortlisted and interviewd. Due to the unavailability of documents, the Respondent has failed to support their decision not to shortlist the Applicant and to prove that their assessment was rational and fair. To this end the Applicant’s assertion that the process was flawed remains unchallenged and must stand. The Respondent has further failed to provide reason(s) on why the Applicant was not shortlisted and therefore interviewed.
64. In Noonan v SSSBC & Others [2012] 22 ILJ 2597 (LAC) it was held that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice.
65. If the employee is not denied the opportunity of competing for a post, then the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. If the decision can be rationally justified, mistakes in the process do not constitute unfairness justifying an interference with the decision to appoint. In this case however, the documents that the applicant submitted for the promotional position cannot be located to date. This in my view questions whether the Applicant’s documents were considered, rendering the process unfair against the applicant.
66. I take the view that the respondent failed to demonstrate that the Applicant was given a fair opportunity to compete for the post. The loss of important documents is so egregious that it undermines the entire process’s integrity. The Department’s failure to provide records to rebut the Applicant’s version lends itself to one inference that the process was tainted with unfairness and that the employer in fact committed an unfair labour practice.
67. I find that the Applicant has proven that the process was marred with unfairness as the respondent failed to produce evidence that her application was processed, considered and that she was given a fair opportunity to compete.
68. The Applicant was unable to prove that she was the best of all the candidates that applied for the post. I accordingly believe that the most appropriate remedy is compensation, as the Respondent has failed to prove that the Applicant was given an opportunity to compete for the post.
69. I believe that compensation equivalent to 6 months remuneration is fair and just under the circumstances.

AWARD

I accordingly make the following award:

(a) I find that the respondent failed to produce evidence that the Applicant’s application was processed, considered and that she was given a fair opportunity to compete for Post number 371 as advertised in HRM 20 of 2024.

(b) The Respondent, Department of Education Kwa-Zulu Natal, is ordered to pay the Applicant, Ms LC Hastings, compensation equivalent to 6 months remuneration, directly into her bank account, by no later than 30 January 2026.

NTOMBIZONKE MBILI
Arbitrator 12 January 2026
ELRC394-25/26KZN