IN THE ELRC ARBITRATION BETWEEN:
SADTU obo Mathe Zamani Mandlakayise Alford Applicant
And

THE HEAD OF DOE KwaZulu Natal 1st Respondent
NATU obo Magubane Norman Sthembiso 2nd Respondent

ARBITRATION AWARD
Case Number: ELRC782-24/25KZN
Dates of arbitration: 30 January 2025, 04 March 2025, 19 May 2025, 26 August 2025, 30 September 2025 & 13 November 2025

Date of award: 12 January 2026
Lungisani Mkhize
ELRC Arbitrator
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 arbitration hearings as seen on the first page of this award were held online except the last one that was held face to face at the UMzinyathi District Offices in Dundee on 13 November 2025.
2. The Applicant, Mr. Zamani Mandlakayise Alford Mathe was present and represented by Mr. Hendrik Molotsi Sello, a SADTU Union Official. The 1st Respondent, the Head of Department of Education in KwaZulu Natal, was represented by Mr. Samkelo Ngcobo its Employee Relations Official from the Human Resource Management and Development Section. The 2nd Respondent, Mr. Norman Sthembiso Magubane was also represented initially by Ms. Zama Khanyile and then later by Mr. Mtolo, both the National Teachers’ Union officials. The parties provided documentary evidence and only the Applicant party called a witness to testify.
3. The proceedings were held in English and IsiZulu and digitally and manually recorded.
4. Mr. Linda Mandlakazi, a part time interpreter of the ELRC provided interpreting services.

ISSUE TO BE DECIDED

5. I am required to determine whether there was procedural and substantive unfairness in the appointment of the 2nd Respondent to the position of Principal (Post Number 1670 of HRM 20/34 of 2023) at Melokuhle Secondary School. The Applicant sought the setting aside of the appointment made for the position and for the appointment process to be redone from the shortlisting and interviewing stages through its Interviewing Committee.
6. The Applicant argued that he was acting principal during the time the post was advertised and applicants were sifted in. However, he was not sifted in and heard on the day of the interviews that they were taking place at the school and he was excluded from the process. He argued that he had filled the Z83 form correctly and had applied for other Principalship positions in other schools.
7. The Respondent argued that the Applicant’s Z83 form was not filled completely as the current experience section had a dash with only comments section filled. The Respondent produced a document it relied on to sift out the Applicant for the reason mentioned.
8. On 30 January 2025, the 1st Respondent raised a point in limine that the ELRC did not have jurisdiction to entertain the dispute as the Applicant did not lodge a formal grievance with the 1st Respondent on the issue but referred a dispute directly to the ELRC. A jurisdictional ruling was issued on 04 March 2025 where it was ruled that the ELRC has jurisdiction to entertain the matter.
9. After the matter started on 14 April 2025, the Applicant party applied for postponement but it was not granted. The Applicant party called their witness, the Applicant and evidence in chief was heard.
10. On 19 May 2025, another point in Limine was raised disputing the jurisdiction of the ELRC to entertain the matter but for different reasons based on the evidence in chief by the Applicant. Another jurisdictional ruling was issued on 02 July 2025 where it was found that the ELRC has jurisdiction to entertain the matter as the Applicant became aware on 12 November 2024 that the 1st Respondent had decided on 06 November 2024 to appoint the 2nd Respondent and referred the matter on the following day on 13 November 2024 to the ELRC.
11. On 26 August 2025, the 1st Respondent cross-examined the Applicant’s testimony and there was re-examination by Mr. Molotsi Hendrik Sello. The Applicant’s case was finalized. The Applicant party then sought a postponement in order to secure further documents due to what came out of the cross-examination of the Applicant. Instead of applying for the documents as discussed at the hearing, the Applicant party requested and got issued a subpoena for specific documents from the ELRC head office but not all the documents were provided as the 1st Respondent submitted that they could not be found as they were incorrectly filed. I informed the 1st Respondent that I would take the negative inference route in that regard.
12. On 13 November 2025, the 1st and 2nd Respondents did not present its case by calling witnesses as expected. Instead, it made an application for the matter to be dismissed and gave reasons thereof. The Applicant party opposed the application and the 1st and 2nd Respondents replied. This award will deal with the submissions made and determine if the matter should be dismissed or the Applicant party’s relief be granted.

BACKGROUND

13. The Applicant was employed on a permanent basis as a post level 1 educator since April 1990 by the 1st Respondent. At the time of writing this award, he is employed as a Head of Department in post level 2 with persal number 61020737 at Melokuhle Combined School under the UMzinyathi District. He acted as a principal at the same school for over 12 months. In 2023, he applied for a Principalship position in response to HRM20/34 of 2023 post number 1670 in the same school. When he applied for the position of Principal at Melokuhle Combined School, he had been employed for 4 years in the same school.
14. He alleged that certain irregularities took place with regards to his application for post number 1670. He communicated his concerns to the HRSS Director and did not get joy. He also got his private attorney to write a letter to the 1st Respondent in an attempt to lodge an informal compliant and get the matter resolved but there was still not joy.
15. On 12 November 2024, he was informed by Mr. Jiyane, the Circuit Inspector that the 2nd Respondent had been appointed as principal at Melokuhle Combined School and his acting appointment as Principal had been terminated.
16. The Applicant then referred an unfair labour practice dispute relating to unfair appointment to the ELRC on 13 November 2024. The ELRC then scheduled the matter to be conciliated on 02 December 2024 but remained unresolved. The ELRC then scheduled the matter to be arbitrated on 30 January 2025 and the other dates shown on the first page of this award until it was finalized on 13 November 2025.

SUMMARY OF EVIDENCE AND ARGUMENTS

17. The Applicant’s Representative submitted arguments, provided a bundle of documents and called the Applicant as his witness. The 1st Respondent‘s Representative provided a bundle of documents and also submitted counter arguments without calling witnesses. The 2nd Respondent made submissions and supported the 1st Respondent. I only summarized evidence which I regarded to be relevant to the dispute and which helped me to reach my decision as guided by section 138 of the Labour Relations Act 66 of 1995 (the LRA) as amended.

The First Respondent’s Case

18. In his submissions, the 1st Respondent’s Representative, Mr. Samkelo Ngcobo stated as follows: The burden of proof rests entirely on the Applicant to substantiate their case, yet they failed to present any supporting evidence during the arbitration proceedings. During the arbitration proceedings, the Applicant was questioned about how he intended to discharge this burden of proof. The Applicant stated he would produce evidence, however, no such evidence has been presented.
19. The Applicant submitted that he lodged a grievance, however, he failed to produce evidence of that he had completed and submitted the required grievance form. The Applicant also submitted that his cv was deliberately sifted out. His representative, Mr. Sello was present during the sifting process, and if there had been any impropriety, he should have been able to report it as the unions were responsible for ensuring all procedures are followed correctly. It was therefore submitted that it was possible that it was the Applicant’s representative who tampered with the documents.
20. From bundle A page 1 – 5, the Applicant’s CV. The Applicant confirmed that this is the same CV he submitted to the circuit office. He also confirmed that he used identical CVs to apply for positions in all the other schools. From Bundle C, page 6, it is shown that all sections of the Z83 form are compulsory. Leaving any required area incomplete will result in the application being excluded.
21. From Bundle A, page 2, Section F, it shows the Applicant’s employment history as “Melokuhle Combined” with a date of “03/2021.” Following the instruction stipulated on Bundle C, page 6, if there is no further information or date to complete the space, a line must be inserted. The form cannot be left blank, as the requirement is to put a line in that space, not to leave it empty.
22. The CV the Applicant submitted to this council (from Bundle B) differs from the one he claimed was sent for all his applications at the Circuit Office. From Bundle B, Page 9, has the Applicant’s CV that was retrieved from the Circuit Office. This document is different from the one the Applicant alleged he submitted to the Circuit Office. Furthermore, if we compare Bundle B, Page 1 to Bundle C, Page 9, it appears the CV he submitted was not validated.
23. From Bundle B, Page 11, Section F, which details the Melokuhle Combined work experience dated 03/2021. There appears to be a missing line or omission in this section. This discrepancy, in conjunction with the corrections made in the CV submitted to this arbitration by the Applicant, suggests that the Applicant was aware that the completion of the original CV was incorrect and may be attempting to mislead the Commissioner.
24. As noted during the last adjournment—following the cross-examination of the Applicant, the Applicant’s representative presented Bundle B (pages 10–11) and argued that the Applicant’s CV was sifted in, in the past, although the Applicant failed to include a line in the “To” space.
25. During the review of the CVs at the circuit office, it was confirmed that the Applicant applied to Buhlebezwe and Melokuhle schools only and did not submit applications to any other schools. Therefore, the CV submitted to these two specific schools should be the one considered, not the version previously submitted at arbitration.
26. Furthermore, following the Applicant’s examination in chief, the commissioner advised the Applicant to follow a particular process which would have prevented this application, however, the Applicant deliberately failed to do so.
27. During cross-examination, the Applicant stated that he did not receive any acknowledgment of his application from the First Respondent. The Applicant was aware that the South African Post Office was no longer providing postal services, which explained the lack of formal acknowledgment of any application. Furthermore, there is no proof that other applicants received acknowledgments.
28. He maintained that the onus was on the Applicant party to provide evidence that he applied to other schools. Furthermore, he contended that the Applicant’s failure to follow the Commissioner’s directive was a deliberate tactic to achieve his desired outcome.
    The First Respondent’s Response
29. The Applicant claimed to have submitted a grievance but has not provided the necessary formal lodging document, despite being aware of the required form. The submitted CV was affirmed by the Applicant as the version that was submitted in all his applications; therefore, the claim that it was “rough work” was incorrect.
30. From Bundle C, Page 2, the Applicant submitted that he was not required to complete a part of section F. It was submitted that Bundle C, page 6, was the standard departmental guide on how to sift out applications. They had to adhere to departmental policy and process manuals, not an Applicant’s proposed manual.
31. Organized Labour was always present during the sifting process, and that the Applicant’s representative was there. It was disputed that the First Respondent had deliberately failed to acknowledge the Applicant’s application. An email was not the same as physical mail, as physical mail involved the use of paper. From Bundle C, page 7, the Applicant failed to convince the commissioner how this list would have negatively affected the Applicant. Additionally, it was not true that when Mr. Sadaw was called, he refused to present himself. He was the chief STM and supervised the circuit, making it impossible for him to deal with all the applications.
32. Both CV’S of Melokuhle and Buhlebuyeza were the same. It was therefore his prayer that the matter be dismissed.

The Second Respondent’s Case

33. In his submissions, the 2nd Respondent NATU Representative, Mr. Njabulo Mtolo stated as follows: The law clearly mandated strict compliance with all application documents, specifically the Z83 form. The Applicant in question failed to comply with these rules and was attempting to argue inconsistency. The 1st Respondent was within its rights to exclude the Applicant’s application from the pool of candidates competing for the post. The Applicant asserted that an identical Z83 form had been successfully utilized for previous applications; however, the First Respondent cannot be held responsible for the Applicant’s failure to comply with the established application guidelines.

Second Respondent’s Response

34. They believed that this matter should be dismissed, as there were no merits that were filtered down by the Applicant.

The Applicant’s Case

35. In his submissions, the Applicant’s Representative, Mr. Molotsi Hendrik Sello stated as follows: This dispute originated from an unfair labour practice on the part of the First Respondent.
36. The Applicant fully exhausted all internal processes before referring his case to the Education Labour Relations Council. The following steps were taken: On 11 December 2023, the Applicant communicated with Mrs. Mkhize, the District Deputy Director, to discuss this matter. Evidence of communication was in Bundle A, pages 23-24.
37. On 17 September 2024, after not receiving assistance from the First Respondent, he sought legal counsel. On the same day, his attorneys contacted the First Respondent to intervene. This correspondence was in Bundle A, page 25. In addition to this, the District Director and the First Respondent were also informed of this dispute. Evidence is in Bundle A, page 25.
38. Given the absence of a response from the First Respondent regarding the Applicant’s grievance, he referred case to this Bargaining Council on 13 November 2024.
39. Initially, the First Respondent denied access to documents requested by the Applicant. The Applicant then referred to his original, or “source,” application before completing the final typed version. He admitted that Bundle A, pages 1–5, is the CV he was using as a draft before the final one that went for validation.
40. Upon submission of this specific CV, the First Respondent then produced the document the Applicant had been seeking. It was at this point that the Applicant discovered the reason his CV was sifted out from the post he had applied for, and according to the First Respondent, his CV was incomplete. The Applicant insisted that the section he left incomplete should not warrant his CV being rejected, especially since he provided an explanation for the omission.
41. The area left incomplete under Section F was not relevant to the Applicant because he was still serving in his current school. Since he indicated his current employment status, his CV should not have been excluded on that basis. The procedure manual drafted by the First Respondent, which was in Bundle A, page 11, Section 5.11, states that where an application for any post is to be rejected, the validating official must inform the Applicant in writing of the reasons for the rejection.
42. The First Respondent submitted that the Applicant could not be informed of the outcome of his application due to the Post Office no longer being functional. This premise was incorrect and should be rejected. Furthermore, on page 11 of Bundle B, the Applicant’s Z83 form confirmed that his contact details included his email address, and he did not rely on a postal address. The First Respondent therefore had the option to use his provided email address.
43. The First Respondent submitted that the Applicant’s representative attended the sifting process. This submission was rejected and he confirmed that a different representative of the union attended the sifting process, and not the Applicant’s representative.
44. All avenues available to them within the constitutional prescripts for accessing the necessary documents were exhausted. Specifically, a subpoena was submitted to the First Respondent on 02 October 2025, requesting the CV of the Applicant and all applications he submitted. They were of the view that the First Respondent was attempting to obscure the facts and had failed to assist the Council in reaching a fair conclusion on this matter.
45. The procedure manual, which was on page 16 of Bundle A, dealt with the records of proceedings. Section 11.1 mandated the maintenance of accurate records and minutes for all meetings, specifying that these records had to include the dates and names of all attendees.
46. Furthermore, Section 11.3 assigned the responsibility to the Principal or Circuit Manager to ensure the secure retention of these records for a minimum of two calendar years.
47. The Respondents failed to produce the required documents, despite their policy mandating safekeeping of records for a period of two years. Furthermore, the Respondents failed to present any evidence to counter his argument that the Applicant submitted applications to other schools, specifically Ekukhanyeni and Thembunyawo Secondary Schools.
48. The Respondent’s failure to produce the record of applications for these schools was significant. It was their assertion that these records would confirm that Applicant did apply for the aforementioned positions and would assist the Council in reaching a conclusive decision, thereby ensuring justice.
49. He requested that Bundle C be declared null and void. The documents in this bundle did not align with the subpoena’s clear requirement for a list of documents signed by all parties. This suggested the department was concealing information.
50. Mr. Sadaw, who was subpoenaed, was not called to provide evidence at the arbitration. They believed this was because his testimony would contradict the First Respondent’s case.
51. Regarding the department’s claim that the Applicant did not file a grievance, it was disputed. Bundle A, pages 25-27, confirms that the Applicant exhausted all avenues, but his efforts were not acknowledged by the First Respondent, and no alternative method for raising concerns were provided.
52. The First Respondent acknowledged that the documents with the signatures were misfiled. However, they contended that these documents were not misfiled, but rather the First Respondent was unwilling to provide them. Given that the Applicant was appointed under the LRA, the First Respondent was obligated to ensure fairness in the appointment of educators.
53. On page 6 of Bundle A, paragraph 2.1.1 stated that obligations of the State as the Employer in terms of section 195 and 197 of the Constitution of the Republic of South Africa included the following factors: (a) the ability of the candidates; and (b) the need to redress the imbalances of the past in order to achieve broad representation. It was evident that the Applicant was prejudiced, despite acting as principal in the same post. He was not given fair consideration compared to other Applicants. This appears to be a premeditated issue.
54. The Applicant faced similar prejudice before his appointment as a departmental head, necessitating legal action against the First Respondent. They believed this current situation could be punitive.
55. The Respondents failed to defend themselves against the prejudice suffered by the Applicant. They did not provide counter-evidence, prove inconsistencies, or produce witnesses to support their case, and they also failed to comply with the subpoena.
56. Dismissing this case, given current reports of corruption by officials, would promote injustice and corruption within the system. It would not serve the interest of justice and would set a precedent allowing the department to create policies that it subsequently failed to adhere to. He requested the dismissal of the application submitted by the Respondents.

ANALYSIS OF EVIDENCE AND ARGUMENT

57. Section 186(2) (a) of the LRA stipulates that an unfair labour practice means any unfair act or omission that arises between an employer and an employee involving 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.
58. The Applicant applied for the Principalship post 1670 at Melokuhle Combined School and alleged that there were irregularities that led to his application to be sifted out; ultimately denying him a chance to be interviewed and to showcase that he was the best candidate for the position in question.
59. In Department of Justice v CCMA & others (2004) 25 ILJ 248 (LAC), it was held that only once an employer has made a final decision not to appoint an aggrieved employee can that employee refer an unfair labour practice relating to promotion. In this case, the Applicant only referred this dispute after he was informed that the 2nd Respondent had been appointed whilst he was still awaiting feedback for the informal grievance he lodged with the 1st Respondent.
60. Moreover, the Applicant is a Head of Department at Melokuhle Combined School and had an interest in the appointment of the Principal as he would have to work with such a person.
61. If the 1st Respondent were to disregard the applicable policies and laws in appointing the Principal in his school, he would be directly affected like the other Educators, Parents and Children in the school. Since he applied for the position as well, an improper process could negatively affect his chance of being promoted.
62. Based on the above, he had a right to refer a Section 186 (2) of the LRA matter to the ELRC and the ELRC has jurisdiction to entertain the matter based on the articulation of the Applicant in referring his dispute and the two Jurisdictional Rulings issued before this matter was finalized and issued to the parties.
63. The 1st Respondent and 2nd Respondent applied for the Applicant’s case to be dismissed as he failed to fill section F of his Z83 Form where he had to indicate his current position at the time he was applying for post 1670. The Applicant left a gap and explained in the comments section that he was still serving in the last mentioned position as Head of Department.
64. The Applicant ultimately did not deny that he did not fill this particular section described. He submitted that he did not believe that he had to fill that section as it did not apply to him as the section required a date which did not exist at the time he applied. Hence he explained under the comments section that he was still serving and this conveyed the information that at the time of applying for post 1670, his position was that of Head of Department in the same school from March 2021.
65. I am convinced that if any reasonable person were to read the Applicant’s part F of the Z83 form, they would clearly understand the Applicant’s intended message in filling the form as he did.
66. If any of the participants in the sifting process were to be confused by how the Applicant filled part F of his Z83 form, there was section 1.15 of the EHR7 (The Applicant’s CV) that indicated the Applicant’s teaching experience and would have cleared any confusion about how the Applicant filled section F of his Z83 form.
67. This matter is about a requirement in Item 1 of HRM Circular Number 20/34 of 2023, the initial sifting checklist which stated that all sections (A, B, C, D, E, F &G) of the Z83 Form had to be completed and that if any was not completed, the application had to be excluded.
68. In this case, the Applicant submitted that the “To” section did not apply to him as he was currently employed as a Departmental Head from March 2021 and was still serving. To me, the space left by the Applicant whilst there were comments explaining why there was no date, did not warrant that an acting principal in the position he applied for with 32 years’ experience with the 1st Respondent be sifted out from the application process.
69. Part 2 (EHR7) of the HRM Circular Number 20 & 34 of 2023 Initial Check List document used in the sifting process must be used with flexibility and adaptability to ensure that the focus is on substance over form. As the courts have done, the sifting process participants and the guidelines they use must ensure that procedural rules do not defeat the ends of justice.
70. In Eke v Parsons [2015] ZACC 30; 2016 (3) SA 37 (CC), the Constitutional Court addressed the importance of complying with court orders and rules but also recognized the court’s role in ensuring fairness and access to justice. This case highlights the importance of substance over form as it happened in this case where an acting principal’s application in a school with 32 years’ experience was sifted out due to an absence of a dash in a Z83 form requiring a date which was irrelevant for the applicant.
71. Item 3 of the same checklist contained a check for validation of the application. The Applicant’s application was validated but there was no communication to him about the space in section F of his Z83 form which led to the rejection of his application as prescribed in Items 7.1.1 to 7.1.3 by Circuit Management. Item 3 of HRM Circular Number 20/34 of 2023 also called for the communication of reasons for rejecting an application being communicated to the Applicant but this was not done. The Applicant had included his email address where he could be contacted but this was not used.
72. The 1st Respondent failed to provide all documents subpoenaed by the Applicant party that would indicate the participants in the sifting process and their signatures so that a comparison would be made in terms of the 1st Respondent’s consistency in dealing with the space left in section F of the Applicant’s Z83 form. However, the 1st Respondent provided a document that was not signed by the participants in the sifting process for Buhlebuyeza Secondary School (1644) and denied that the Applicant applied at all for the other two posts at Thembunyawo (1710) and at Ekukhanyeni (1703).
73. In the absence of the subpoenaed documents, I am persuaded that probably the Applicant applied for the other two positions and the 1st Respondent chose not to provide them as this would indicate inconsistency on their part in handling the Applicant’s applications. It is also probable that the 1st Respondent ensured exclusion of the Applicant as there was previously legal action by the Applicant that led to his appointment in his position of Head of Department.
74. In Provincial Administration Western Cape (Department of Health & Social Services) v Bikwani (2002) 23 ILJ 761 (LC) it was held that an employee must prove not only the existence of a labour practice but also that it was unfair. In this case, it is my finding that the Applicant proved the existence of the labour practice and that it was unfair to him as his application for post 1670 was sifted out for not filling a dash in the space of a date of end of service which did not apply to him whilst he indicated that it was his current position in the comments on the same line.
75. It is a suggestion that the Part 2 (EHR7) of the HRM Circular Number 20 & 34 of 2023 Initial Check List document or the applicable circulars for positions should indicate that applicants are expected to include a dash or any acceptable form of indication in their current positions part of section F of the Z83 form to avoid the same dispute as this one in future.
76. In SAPS v Inspector Zandberg & others (2010) 31 ILJ 1230 (LC) it was held that irrespective of the relief requested by the Applicant, the arbitrator has discretion to set aside the appointment of the 2nd Respondent.
77. Since the 2nd Respondent was joined in this matter and I have made a finding that the 1st Respondent conducted unfair labour practice against the Applicant and this had a negative impact on the Applicant, to remedy the situation, I am convinced that the setting aside of the appointment of the 2nd Respondent would give the Applicant a fair chance to advertise his skills at during the interview process. The 2nd Respondent and the other candidates will also have a chance to be considered for the Principalship position in question.
78. The above mentioned remedy of this dispute will not jeopardize the best interest of the children of the Melokuhle Combined School as teaching and learning will proceed during the sifting process until the appointment of the new principal. The 1st Respondent is expected to appoint an acting principal after the 2nd Respondent’s position has been set aside.

AWARD

79. The 1st Respondent, Head of DOE-KwaZulu Natal committed unfair labour practice by sifting out the Applicant’s application for post 1670 at Melokuhle Combined School.
80. The action of the 1st Respondent negatively affected the Applicant’s promotion chances.
81. Accordingly, the appointment of the 2nd Respondent to post 1670 is hereby set aside and the 1st Respondent is directed to instruct the Melokuhle Combined School to redo the selection process for post 1670 from the shortlisting stage.

L Mkhize

Arbitrator                                                                                                12 January 2026

ELRC782-24/25 KZN