30 July 2025 -ELRC795-21/22KZN

IN THE ELRC ARBITRATION

BETWEEN:

NAPTOSA obo Sharitha Pillay “the Applicant”

And

DEPARTMENT OF EDUCATION – KWAZULU-NATAL 1st Respondent

Saroj Moodley 2nd Respondent

ARBITRATION AWARD

Case Number: ELRC795-21/22KZN
Last date of arbitration: 24 June 2025
Date of submission of closing arguments: 14 July 2025
Date of award: 30 July 2025

ELAINE MOODLIAR
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
The General Secretary
ELRC Building
Private Bag X126
Centurion
0046
Gauteng
RSA

Tel: 012 663 7446
Fax: 012 643 1601
E-mail: cindyfoca@elrc.org.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

This matter was set down for arbitration hearing and heard on 6 August 2024, 10 February 2025, 15 April 2025, and was concluded on 24 June 2025. The parties were thereafter granted until 4 July 2025 to submit written closing arguments. I then received a request for an extension from the respondent, which I granted. I received the respondent’s closing arguments on 14 July 2025.
The applicant, Ms Sharitha Pillay (“the applicant”), was represented by Mr R Juguth, an official of NAPTOSA. The 1st respondent, the Department of Education (“Respondent”), was represented by Mr S.T Danisu, an official of the Department of Education. The 2nd respondent, Ms Saroj Moodley, was not present as she retired.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

The arbitration hearing is in respect of a referral by the Applicant of an alleged unfair labour practice as provided for in section 186 (2) (a) of the Labour Relations Act 66 of 1995 (LRA) concerning the Department’s failure to promote the Applicant.
I am required to decide whether the 1st respondent’s refusal to shortlist the applicant for the position of Deputy Principal was unfair and, if so, to determine the appropriate relief to award.
The applicant sought compensation as relief.

BACKGROUND TO DISPUTE AND NARROWING OF ISSUES

The applicant commenced her employment with the 1st respondent in 1984. She is employed as a post-level 2 educator, Department Head (DH) at the Kharina Secondary School. She earns R 24 955.40 per month.
In 2021, she applied for the position of Deputy Principal at Kharina Secondary School, which was advertised in HRM 35 of 2021 as post number 1525. Four internal candidates applied for this post (including the applicant). Out of those four, three were shortlisted.
The applicant met the minimum requirements for the post but was not shortlisted. She was therefore not among the five candidates who were selected for an interview. The applicant lodged an unsuccessful grievance. She then referred a dispute.
The five candidates who were interviewed and their respective scores are listed below:
R. Govender (internal candidate – 25 years with 7 years as DH) Scored 33.4
S. Moodley (internal candidate – 36 years with 7 years as DH) Scored 30.8
A.D. Roopan (internal candidate – 27 years with 7 years as DH) Scored 28.2
FG Majola (26 years with 14 years as DH) Scored 25.4
M.I Dlamini (13 years with 5 years as DH) Scored 26.6
The applicant had 37 years of experience, with 15 years as Department Head. She scored 23.2. She was ranked at number 11.
Upon finalisation of the second process, Ms S Moodley was appointed to the post of Deputy Principal.
The applicant’s case was that she was denied a fair opportunity to compete for the post, despite her qualifications and relevant experience, which were similar to or exceeded those of the shortlisted candidates. She contended that she was deliberately underscored. This amounts to unfair labour practice.
The applicant sought monetary compensation as a remedy.

SUMMARY OF EVIDENCE AND ARGUMENT

The applicant was the sole witness in support of her case.
Mr Mhlope, the Resource Person, and Mr T Pillay (member of the scoring committee) testified on behalf of the 1st respondent.
The evidence presented forms part of the record, and as such, I will not burden this award with verbatim submissions. The relevant submissions relating to the key issues in dispute will be captured in the survey below. All evidence and arguments were considered when reaching my decision.
The applicant’s evidence and arguments
The applicant, Ms Sharitha Pillay, testified that she has been an Educator since 1984. In terms of her formal qualifications, she possessed a BCOM (Part) degree, Junior Secondary Education Diploma, and Further Diploma in Education. At the time of her application for the post of Deputy Principal, she had been at Kharina Secondary School for fifteen years as a Department Head.
Over and above being a Department Head, during this time she also acted as a Deputy Principal for over one year.
She also applied for the posts of Deputy Principals at other schools, which were advertised in the HRM35/2021. She was shortlisted for three posts. Two posts at Silver Heights Secondary and one at Dunveria Secondary.
At her school, she applied for two posts but was not shortlisted. For the post in question, despite her extensive qualifications and experience, she was scored 23.2, significantly below others with lesser or comparable experience.
The applicant went on to show why she believed that her Curriculum Vitae (CV) was underscored by comparing hers to that of the shortlisted candidates.
The successful incumbent scored 30.8. The applicant scored 23.2, yet both her CV and the applicant’s CV were similar in many respects. In terms of the categories for consideration (1.16 – 1.19), leadership, organisational abilities and experience, professional development / educational experience, interest and insight, and leadership community-related, both her and Ms Moodley’s CVs had many overlapping functions and similar committee roles. Furthermore, when compared to the second respondent’s CV, the applicant argued that she displayed far more competencies in keeping with the role function of a Deputy Principal.
She added that despite the similarities, there were key differences where she should have scored more than she highlighted as follows:

CATEGORY APPLICANT MS S MOODLEY
Z83 Form Completion Fully completed Incomplete — crucial criminal declaration unanswered (page 6 of bundle A)
Years in Service 37 years 36 years
Years as DH at Kharina Secondary

15 years
7 years
Acted as Deputy Principal Over 1 year 0

She further stated on her CV that she was experienced in School Governing Body finances, and Ms Moodley did not have this experience.
Concerning page 4, Bundle B (1.16), the applicant stated that she acted as Deputy Principal and executed all the related duties. However, the second respondent did not mention any Acting Deputy Principal roles or experience in any of the scored sections, 1.16 to 1.19.
Based on the differences in the CVs, she ought to have been scored more than the successful incumbent.
The applicant went on to compare her CV to that of the other four shortlisted candidates. She highlighted that in terms of management experience, R. Govender had seven years, A.D Roopen had six years, Majola and Dlamini were also junior to her. None of them had experience as Acting Deputy Principal.
The Z83 of Ms A.D Roopen (Bundle B, page 71) was also not correctly completed. She failed to complete the form by omitting important information relating to official registration. Yet her CV was sifted through and she was shortlisted.
The CVs of Ms A.D Roopen (scored 28.2) and Ms M.I. Dlamini (scored 26.6) were almost identical. Some sections seemed to have been copied verbatim. The applicant submitted that this amounts to plagiarism or even misrepresentation. This appears not to have caught the attention of the Interview Committee, as the minutes do not reflect any concerns in this regard.
Considering the experience captured on their CVs, she could not understand how all other candidates scored higher than her.
Even Ms Dlamini, who was ranked number 4, only had 13 years of teaching experience and 5 years of experience as a Department Head. Ms Dlaimini scored 26.60, and the applicant was scored number 11 with a score of 23.20. Far below that of Ms Dlamini.
The applicant was of the view that the only reason she could have been kept out of the running is that, as an internal candidate, certain members of the Interview Committee did not enjoy a cordial working relationship with her. Some of the members were Educators at the school. These members of the Interview Committee understood her and would have known her CV despite the names being blocked. They would have been able to associate her name with what they knew about her.
She mentioned Ms Ramlakan, who has been on the School Governing Body for over twenty years and has always sat on Interview Committees.
She raised her concerns with the School Governing Body in August 2021 with the Department for her application to be protected.
She also added that according to the minutes, the scoring took place over two days. It was unclear which day which CV was scored. It is therefore possible that discussions could have taken place before the second day.
Considering the information on her CV, the difference between her score and that of the shortlisted candidates is shocking. Considering the similarities and differences she highlighted in the CVs, it only makes sense that she was deliberately underscored.

The respondent’s evidence and arguments

Mr Lungisani Mhlope testified that he was the Resource Person for the Interview Committee. It was his first time being the Resource Person at Kharina Secondary. He had no knowledge of which candidates were internal and which were external. His role was to guide the process.
He explained the shortlisting process and stated that it was conducted following Resolution 11 of 1997. The criteria for shortlisting for the posts, the guidelines, and what should be done would be discussed. The guidelines would be unpacked so that the committee understood the process.
As the Resource Person, he trained the committee on the process and what was expected. He would unpack and discuss Resolution 11 and go through each criterion. On the day of the shortlisting, a program of action is set out.
The process is usually that names are blocked out and CVs are numbered. This will ensure that scorers do not know the candidates. The sections to be scored are read out one at a time. Each section is scored by the scorers. The scores are then averaged to give the candidate a score for that particular section.
With regard to the post in question, he confirmed that the scoring was held over two days. He explained that the reason for this was that some members of the Interview Committee were employed elsewhere but assisted the school. Due to them only being available after 17H00, it was impossible to complete the process in one day. There was also a need to be thorough and not rush the process. He added that load shedding at 10H00 also disrupted the process. This is why the process took two days.
The post in question was highly contested. If there were vast differences in the scores, then discussions would have taken place in order to reach a consensus. This did not happen. Union observers were present, and there were no concerns raised.
Concerning the identical CVs, he stated that all the candidates were Educators and similarities would be present. It would have been different if the CVs were totally similar.
He disputed that the applicant was underscored. He was satisfied with the process as the resource person.
Under cross-examination, he submitted that the scoring was solely based on the criteria. Four areas were discussed with the candidates’ experience and skills.
He confirmed that despite the names being blocked, the panel could know who the CV belonged to. This would depend on how well a member of the panel knew the candidates.
Concerning the identical CVs of Dlamini and Roopen, he stated that the CVs may be similar but were not identical.
He confirmed that the applicant stated on her CV that she acted in the position of Deputy Principal and that Ms Roopen’s CV did not contain any acting experience. He further confirmed that acting as Deputy Principal may qualify a person for a position of Deputy Principal.
When pointed to the CVs of the applicant and the successful incumbent, he did not dispute the similarities. He, however, stated that as the resource person, he is only there to guide the process. The scorers would score each candidate. He also added that he did not notice any discrepancies in the scoring. He also pointed out that there were differences in the CVs where the applicant stated that she attended workshops whilst Ms Roopen facilitated.
He clarified that a candidate may score well in one area and score lower in another. This would affect the total score.
Mr Tyron Pillay testified that he was a member of the Interview Committee and tasked as the teacher representative. He was one of the scoring members. He knew the applicant as they were colleagues at Kharina Secondary.
He confirmed that the process took two days due to the availability of the members. He confirmed that the process of shortlisting was guided by Resolution 11 of 1997. The PAM documents were also used to identify the duties of the Deputy Principal.
The process was explained. He confirmed that the names were not read out. Only the relevant sections on each CV were read out and scored. The school names were also not read out, as this would prejudice the internal candidates.
He further explained that the five scores were averaged to reach the final score. It was agreed that if there were discrepancies in the scoring, these must be discussed and a consensus reached. He also could not recall there being any discrepancies during the process.
The applicant ranked at number 11. The scoring was solely based on the strength of the applicants’ CVs. There was no additional criterion set. No special preference was given to internal candidates. In his observation, the process went well. There were no objections from the resource person or the unions.
Under cross-examination, it was put to him that Mr Mhlope did not mention that the PAM documents were used as criteria. He responded that the PAM documents were read, but Resolution 11 of 1997 was used as the criterion.
When asked about what discrepancies meant in the shortlisting minutes, he explained that if one scorer scored a candidate at 13 and another at 10, then there was a difference of 3 or more. This would require discussion and clarity on how the scores were reached. There were, however, no discrepancies of this nature.
He further confirmed that the names of the candidates were read out at the commencement of the process to determine if any member knew a candidate. Then it would necessitate a recusal.
He agreed that the information in the CVs of Roopen and Dlamini was very similar. He could not respond to why the committee did not notice this. He, however, stated that it is common for CVs to be similar as people sometimes attend training on CV writing.
He further confirmed that the applicant’s and Ms Moodley’s scores were quite far apart. He, however, stated that he was not the only scorer. He could have scored the applicant higher than others in certain areas. He cannot speak for the other scorers.
He went on to say that it was not only the applicant who acted as a Deputy Principal. Mr Govender also did, and he was shortlisted. How the applicant perceives her CV may not necessarily be perceived in the same way by the Interview Committee.
He maintained that because no discrepancies were raised, the applicant was not underscored. He also stated that the qualifications mentioned by Ms Moodley under 1.18 were not listed by the applicant. Therefore, not all aspects in their CVs were similar.

ANALYSIS OF EVIDENCE AND ARGUMENT

Section 186(2) (a) of the Labour Relations Act 66 of 1995, as amended, defines an unfair labour practice as 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.
In Noonan v Safety & Security Bargaining Council and Others [2012] 33 ILJ (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. If the employee is not denied the opportunity of competing for a post, then the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason.
It is also trite that the applicant bears the onus of proving that the employer exercised its discretion improperly, unfairly, and arbitrarily. It has become trite law that there are three basic requirements for a fair appointment or promotion: the procedure must have been fair; there must have been no discrimination, and the decision must not have been grossly unreasonable. Any decision taken by an employer must be exercised reasonably and judiciously, and an Arbitrator must be loath to interfere unless there is gross unreasonableness or mala fides.
In the present matter, it was common cause that the applicant met the minimum requirements of the post as advertised in the HRM Circular No. 35 of 2021. Despite her meeting the requirements for the post, she was not shortlisted.
In Pamplin v Western Cape Education Department (C 1034/2015) (handed down 9 May 2018), the Court emphasised that in an unfair labour practice relating to promotion, the employee bears the onus to prove that the failure to promote was unfair, the employer will be obliged to defend the challenges made on the substantive and procedural fairness to avoid a negative outcome.
1. In Dlamini v Toyota SA Manufacturing 2004 25 ILJ 1513 (CCMA), the Commissioner stated that the Commissioner’s function is to ensure that the employer did not act unfairly towards other candidates when it selected the successful candidate.
Section F, ELRC Guidelines on Promotion Disputes in the Collective Agreement No.3 of 2016 outlines under Section F (36) that the conduct of the employer may be substantively and/or procedurally unfair. Substantive unfairness relates to the reason for not promoting the employee, whereas procedural unfairness relates to an unfair process applied by an employer during the course of the recruitment and selection process. As soon as the promotion has been made by the employer, the employer becomes responsible for any unfair conduct of the school governing body committed during the process leading up to the promotion.
In this matter, it was the applicant’s case that she was treated unfairly during the shortlisting process. She was not offered a fair opportunity to be interviewed and compete for the post.
The key issues to be determined in this award are whether the applicant ought to have been shortlisted. Whether by not shortlisting the applicant, she was deprived of a fair opportunity to compete for the post, and whether she was the best candidate for the post.
Section H (53), ELRC Guidelines on Promotion Disputes in the Collective Agreement No.3 of 2016 states concerning procedural fairness that: “Where an applicant in a promotion dispute, is unable to prove that he was the best of all the candidates who applied for the job, then for the employee to prove an unfair labour practice relating to promotion, he or she should generally, at least demonstrate that there was conduct that denied him or her a fair opportunity to compete for a post.”
In the present matter, I am satisfied that the applicant has shown that she ought to have been shortlisted and that the respondent’s conduct denied her the opportunity to compete for the post.
The applicant led extensive evidence and demonstrated why she ought to have been shortlisted. Her CV contained information relating to her vast experience as a Department Head. She had the highest number of years of service as opposed to all the other candidates who were shortlisted. She had fifteen years of experience as a Departmental Head, even higher than the successful incumbent, let alone the candidate who ranked at number 4, who had a mere five years of experience as a Departmental Head.
This evidence was left undisputed by the 1st respondent. It provided no evidence on why the five shortlisted candidates were preferred over the applicant.
It was further undisputed that the applicant had inherent experience in the role of a Deputy Principal. Mr Mhlope confirmed that acting as a Deputy Principal could qualify a candidate for the post. Despite this, there was no evidence as to why the applicant ranked number 11 as opposed to candidates who did not have experience of acting in the position. The panel ought to have reasonably known that acting as a Deputy Principal for over one year would have given a candidate sufficient knowledge or the key roles and responsibilities of the position.
I will not dwell on the CVs of two of the candidates which were identical and, somewhat verbatim, as this was undisputed. The respondent argued that it saw nothing wrong with this. However, what is surprising and questionable is that these candidates were ranked much higher than the applicant whose CV contained inherent qualities for the post.
As per the case authorities cited above, the 1st respondent had a duty to show why the applicant was not preferred over the other candidates. Instead, it relied on Resolution 11 of 1997 and maintained that the process was fair.
The fact that the committee adopted Resolution 11 of 1997 and the fact that the unions were present and did not object does not necessarily mean that the process was fair. The fact that some applications with incomplete information on the Z83s were sifted in and not picked up by the panel raises concerns around the process. To take it a step further, these candidates were shortlisted despite the incomplete information.
The applicant’s version was that she did not share a cordial working relationship with some of the members of the Interview Committee. She confirmed that she raised this with the Department in 2021. This could have been the reason why she was underscored. There was no evidence to rebut this version.
In the circumstances of what the applicant presented, I am satisfied that, despite the names not being read out when the CVs were read, it is probable that the panel knew who the CVs belonged to. This would be probable based on what was written under the various criteria and the fact that names were read out at the commencement of the process. Surely members of the School Governing Body and fellow Educators on the panel would be able to identify which CVs belonged to the internal candidates.
I am satisfied that the applicant has presented a probable version that the panel could have acted in bad faith and deliberately underscored her. There is no other probable explanation before me for how the applicant’s CV was scored so low.
Based on the aforesaid, I find it unreasonable and unfair that the panel did not know that a candidate with the highest number of years of experience, who acted as Deputy Principal for over one year and was a Department Head for fifteen years, should have been shortlisted. I further find it unreasonable that other candidates who do not even come close to the applicant’s years of experience were shortlisted and scored much higher than the applicant.
I therefore find by applying the test of fairness that the 1st respondent had acted unfairly on procedural grounds in failing to allow the applicant the opportunity to compete for the post.
Concerning the substantive grounds as to whether the applicant should have been promoted, it is trite that when making an appointment, both the qualifications and experience as recorded in the CV submitted by candidates, together with performance during interviews, must be taken into account. It is irrational to make an appointment purely based on performance during interviews or to reason that the experience and qualifications as contained in a CV become irrelevant after shortlisting.
The applicant may have fared well in the interview process and been appointed had she been allowed to be interviewed. However, as an arbitrating commissioner, I am not in a position to assess how the applicant would have fared in the interview. What I can pronounce on is that it would have been logical and reasonable for the 1st respondent to shortlist the applicant based on her experience contained in her CV. Instead, she was prejudiced and not allowed to be interviewed.
The applicant has thus discharged the onus of establishing that the 1st respondent had committed an unfair labour practice against her. The 1st respondent was unable to provide a reasonable defence to the substantive and procedural issues of unfairness raised by the applicant.
The applicant sought compensation as relief. There is no evidence before me to suggest that it would be unfair to award the applicant compensation for the procedural unfairness and prejudice she suffered. However, compensation must be just and equitable. The applicant earned R24 955.40. Taking into account all the circumstances of the case. I believe it would be just and equitable to award the applicant compensation of six (6) months of salary, (R24 955.40 x 6), which equates to R149 732.40 (one hundred and forty-nine thousand, seven hundred and thirty-two rand and forty cents).

AWARD

I find that the applicant, Ms Sharitha Pillay, was unfairly not shortlisted and that this constituted an unfair labour practice;
The 1st respondent, the Department of Education, KwaZulu-Natal, has committed an unfair labour practice in respect of the applicant;
The applicant is awarded compensation in the amount of RR149 732.40 (one hundred and forty-nine thousand, seven hundred and thirty-two rand and forty cents); and
The 1st respondent is ordered to pay the applicant the sum of R149 732.40 (one hundred and forty-nine thousand, seven hundred and thirty-two rand and forty cents) by no later than 31 August 2025.
There is no order as to costs.