TVET college promotion overturned after ‘engineered’ recruitment process

The department of higher education and training has been ordered to promote a KwaZulu-Natal TVET college lecturer after an education labour relations council (ELRC) arbitrator found that the recruitment process had been unfair.

The arbitrator found it was riddled with procedural irregularities, bias, manipulated interview scores and dishonesty.

In the arbitration award, arbitrator Mandlakhe Khawula ruled that the department had committed an unfair labour practice by failing to appoint Bernedette Naicker to the position of senior lecturer (NCV general) at Esayidi TVET College.

Instead, the arbitrator set aside the appointment of Albert Mbotho, ordered Naicker’s direct appointment with retrospective effect, and instructed the department to pay her the salary difference and all backdated benefits by July 30.

The dispute stemmed from a promotion process for the senior lecturer post advertised in November 2022. Naicker, who joined the department in 2009, challenged both the procedural and substantive fairness of the recruitment process after Mbotho was appointed.

The arbitration, which stretched over 16 hearing days between July 2024 and May 2026 before the award was delivered this month, heard extensive evidence from both parties.

Naicker argued that the recruitment process had been designed to favour Mbotho from the outset.

Naicker testified that the advertised requirements for the NCV senior lecturer post were altered to include Report 191 experience, despite the programmes being distinct, allowing Mbotho, whose experience lay largely in the Report 191 stream to qualify.

Naicker maintained she possessed significantly stronger NCV credentials, including 13 years’ teaching experience in the programme, 12 years as subject head for English, an honours degree in education management, assessor and moderator qualifications, and a track record that included a 100% pass rate in both NCV and Report 191 programmes.

Mbotho acknowledged during arbitration that Naicker had considerably more NCV teaching experience than he did.

One of the arbitrator’s strongest criticisms related to conflicts of interest during the recruitment process.

The award found that two members of the recruitment panels had also served as referees for Mbotho, yet neither disclosed the relationship nor recused themselves.

Khawula described this as a severe procedural irregularity, saying a referee could not objectively assess a candidate while simultaneously vouching for that person’s professional abilities.

The arbitrator rejected evidence from the college principal, who argued that conflicts of interest only applied to blood relatives or spouses.

He found the college leadership had fundamentally misinterpreted its own recruitment policy, which also required officials to withdraw where any close relationship compromised impartiality.

The award further criticised the college’s handling of Naicker’s grievance after the appointment.

The principal, who chaired the shortlisting committee and participated in the selection process, later chaired the grievance hearing into the very appointment being challenged.

Khawula found this created an obvious conflict of interest.

He also noted that Naicker never received the outcome of her grievance despite repeated enquiries, forcing her to refer the dispute to the ELRC without the employer’s decision.

The arbitrator concluded that the grievance process lacked independence and instead became “a co-ordinated defence mechanism” for those involved in the recruitment.

Naicker alleged her interview scores had been reduced while Mbotho’s scores were increased after candidates had left the interview room. The arbitrator found documentary evidence supported her claims.

The interview scoring process was not an objective, merit-based assessment. Instead, it was an artificial, procedurally flawed process characterised by systemic manipulation

—  Arbitrator Mandlakhe Khawula

Khawula noted instances where Naicker gave more comprehensive answers but received lower marks than Mbotho, as well as alterations to score sheets that were never explained or recorded in official minutes.

He said the changes demonstrated “systemic, mathematical and administrative manipulation” that undermined the integrity of the process.

“The interview scoring process was not an objective, merit-based assessment. Instead, it was an artificial, procedurally flawed process characterised by systemic manipulation.”

The arbitrator also found the college failed to comply with its own recruitment policy by not electronically recording interviews, despite the policy requiring both manual and electronic records.

He said the absence of audio recordings removed an important safeguard that could have verified disputed scores.

The issue is not entirely about the criminal record. A criminal record that is disclosed is excusable, but lying about it is not

—  Arbitrator Mandlakhe Khawula

The award further scrutinised Mbotho’s appointment after it emerged he had failed to disclose a 2006 conviction for driving under the influence of alcohol on both his Z83 application form and the employer’s integrity declaration.

Though the conviction later surfaced during background checks, the department accepted his explanation that he believed the conviction had been expunged and allowed the appointment to proceed.

Khawula rejected that explanation.

He found Mbotho had presented contradictory versions during the arbitration about whether he knew he had a criminal record and concluded he had made a material misrepresentation on official recruitment documents.

“The issue is not entirely about the criminal record. A criminal record that is disclosed is excusable, but lying about it is not.”

Ultimately, Khawula concluded that Naicker had proved not only that the recruitment process was procedurally and substantively unfair, but that she was the candidate who should have been appointed.

Instead of ordering the process to be rerun, he directed the department to appoint her directly, saying it would be irrational to spend further public money on a fresh recruitment process when the evidence clearly established who should have secured the position.

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