Case Number: PSES280-17/18EC
Province: Eastern Cape
Applicant: Archibald Tobile Dikjan
Respondent: 1st Respondent Department of Education Eastern Cape, 2nd Respondent Newell High School SGB
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 30 July 2018
Arbitrator: Raymond Jonathan
Case Number: PSES280-17/18EC
Commissioner: Raymond Jonathan
Date of Award: 30 July 2018
In the ARBITRATION between:
Archibald Tobile Dikjan (Union/Applicant)
Department of Education – Eastern Cape (1st Respondent)
Newell High School: School Governing Body (2nd Respondent)
Department of Education Head of Department – Eastern Cape (3rd Respondent)
ZA Mapakati: Newell High School Principal (4th Respondent)
Applicant’s representative: Ms Monique Cooper
Applicant’s address: 38 Badela Street
Telefax: 041 995 4169
Respondent’s representative: Mr L Eskok (respondent 1,2 & 3)
Respondent’s address: Private Bag X0032
Telephone: 040 608 4540
Telefax: 040 608 4313 / 086 255 1741
Respondent’s representative: Ms TC Nkonki
Respondent’s address: Private Bag X0032
Telephone: 041 457 1856
Telefax: 041 456 1444
DETAILS OF HEARING AND REPRESENTATION
1. An Unfair Labour Practice dispute relating to promotion was scheduled for Arbitration in terms of section 191(5)(a)(iv) of the Labour Relations Act, No 66 of 1995, as amended (herein referred to as the ‘”LRA”). The hearing was concluded at the boardroom of the Port Elizabeth Department Education District office in Port Elizabeth on 6 July 2018. The proceedings were digitally recorded. The Applicant, Archbald Tobile Dikjan was represented by Ms M Cooper an attorney from Brown, Braude and Vlok Inc. The respondent, Department of Education – Eastern Cape, Head of Department of the Department of Education – Eastern Cape and Newell High School: School Governing Body was represented by Mr L Eskok a Labour Relations officer in the employ of the respondent. The 4th respondent Mr ZA Mapakati the incumbent was represented by Mr TC Nkonki an official from the South African Democratic Teachers Union. After the conclusion of the arbitration proceedings the parties requested to submit their closing arguments on or before 20 July 2018. This request was exceeded to and all parties submitted their arguments within the agreed timeframe.
ISSUE TO BE DECIDED
2. I am required to determine whether the Department of Education committed an Unfair Labour Practice relating to promotion by not promoting the applicant to the position of Principle of Newell High School.
SURVEY OF ARGUMENTS
3. At the commencement of the proceedings the Applicant and respondent submitted separate bundles of documents. The applicants bundle marked form 1 was not disputed. The respondent’s bundle marked 1 until 45 was also not disputed. The rest of the documents contents was agreed what it purports to be. The following were also agreed as common cause facts:
3.1 The applicant applied and was shortlisted for the post of Principle Newell High School (post number 293, bulletin volume 1 of 2016, level 3)
3.2 Mr ZA Mapakati was recommended and appointed as Principle: Newell High School while the applicant was ranked as 5th candidate.
3.3 The applicant based his claim of an unfair labour practice dispute relating to promotion on the following grounds:
3.3.1 One of the interview panel members was not an elected member of the SGB and therefore the whole process should be declared null and void.
3.3.2 He did not get an opportunity to answer question 5 since the interview panel could not give him an explanation what they meant by factions.
3.3.3 The interview room did not have a clock which displayed the time in order for him to determine how much time was left for the interview. This severally jeopardised him.
3.3.4 The applicant contended that the respondent utilized two different EDO’s during the interview process. One for the shortlisting and another for the interview which according to him was irregular.
3.6 The outcome that the applicant seek is for the appointment of Mr ZA Mapakati be set aside and the appointment process to be redone or be awarded compensation for the procedural flaws during the interview.
EVIDENCE FOR THE APPLICANT
4. The applicant, Archibald Tobile Dikjan testified that he was shortlisted and interview by the Newell School Governing Body. On the day of the interview he was scheduled to be interviewed first. He was however not interviewed at the time which was allocated to him but he had to wait for more than an hour in an office which the EDO identified. When he entered the interview room he noticed that one of the interview panellist was not part of the SGB according to his knowledge. He questioned the presence of Ms Ndingi but was told that he was wasting his own time and that he should start with his interview. He answered the first four questions without any problem. He however did not understand the fifth question, since the question dealt with factions within the school environment. He knows that this term is being used in political circles and cannot be used to describe different groupings or camps which you will find amongst teachers or even children. He was therefore entitled to request clarity with regard to this question. He requested clarity regarding this question but the panel could not supply him with the clarity which he sought. The EDO intervened but even his explanation was not clear. He was of the view that this was irregular since the EDO influenced the interview. As he was about to give his answer on the fifth question the chairperson told him that his time was up. He was given 30minutes to conclude his interview of which 20 minutes was allocated to the questioning section and 10 minutes on his presentation. He did not sign the confidentiality form before the interview or the register. After his interview he was requested by the EDO to sign the aforementioned documents but he refused since he was of the view that this administration should have been done before the actual interview and should be regarded as an irregularity.
EVIDENCE OF THE RESPONDENT
5. The respondent’s only witness, Mr Hawana testified that he is the appointed EDO under which supervision Newell High School resorts. He was therefore responsible to ensure that all appointments within his district went smoothly. After the advertising of all vacancies he assessed whether all School Governing Bodies was properly constituted. Newell High School was one of two schools where the SGB’s was not properly functioning. Two of the SGB members had to resign from their positions since they did not qualify to serve on the SGB anymore. The list of SGB members which the applicant is relying on was the old SGB before the aforementioned resignations. He therefore arranged with Ms Nana, the district official who was responsible for SGB’s within the Port Elizabeth district. He arranged a by-election and this was held on a Sunday and the election officer was Mr Toba who is a principle at Itembelihle High School. The results of the by-election were that Ms Mdinge was elected to fill one of the vacancies on the SGB. This resulted that the SGB was properly constituted.
6. He trained the SGB in shortlisting and interviews conducting. After the training, the SGB decided on a date for sifting and shortlisting of interview candidates. He was however required to attend an urgent meeting in Pretoria which resulted in him not being able to attend the shortlisting meeting as the Resource Person. The date could also not be changed since some SGB members already made arrangements to attend. He therefore requested his colleague to assist with the shortlisting process. During the interviews, he was the Resource Person who represented the Department of Education as prescribed by the Educators Act. The SGB decided on the five questions which would be asked and that all candidates would be given 30 minutes for their interviews. The time allocation for questioning was 20 minutes and 10 minutes for their presentation.
7. The applicant was the first candidate to be interviewed. When he entered the interview room the interview panel introduced themselves. At this stage the applicant started to interrogate the SGB by requiring from them to establish that they are entitled to serve on the SGB. The applicant took his time to write down their names and other details which he required. He had to intervene and informed the applicant that the SGB was properly constituted and he can confirm this after the interview since the appropriate documents was available for him for inspection. The applicant was informed that 30 minutes was allocated to his interview and that he had 20 minutes for the interview and 10 minutes for his presentation. The applicant answered the first four question but when it came to the fifth question, the applicant requested clarification on what was meant by referring to factions. The SGB attempted to clarify what they meant but the applicant started to argue with them. He had to interject and told the applicant that they were referring to different camps or clicks. When the applicant eventually started to answer the question his time was up and he was informed about it. He then proceeded to make his presentation. The applicant failed to manage his own time and cannot put blame on the SGB. All candidates were given the same time allocation and he failed one of the crucial unspoken aspect of his interview which was time management. In general, the applicant was disrespectful towards the SGB and was plainly put rude. The assessment of the applicant, according to him was correct. He did not receive any complaint from the two trade union observers and was satisfied with the result of the interview. He normally does not require candidates to sign the attendance register or confidentiality forms before the interviews since he is sensitive to the fact that candidates are nerves before the interview that is why he does it after the interview because he does not want to burden them with this task while stressed. He does it after the interview. He requested the applicant after his interview to complete the aforementioned documents but he refused and indicted that it was an irregularity. He however cannot recall any policy or provision which require that these documents should be completed before the interview.
8. He is therefore satisfied that the SGB was properly constituted and with the result of the interview. The applicant’s ranking of fifth place was correct in his own assessment. The applicant should blame his own attitude and actions for not being successful in the process.
ANALYSIS OF EVIDENCE AND ARGUMENT
9. The dispute before me was an unfair labour practice relating to promotion. The applicant alleged that the Department of Education – Eastern Cape committed an unfair labour practice by not promoting him to principle of Newell High School. In Buffalo City Public FET College v CCMA and others (P372/12)  ZALCPE (handed down on 4 November 2016) it was held that in unfair labour practice disputes, particularly in those relating to promotions, the onus is on the Employee to prove that he /she is a suitable and better candidate for the position in question. The applicant therefore bears the onus to establish the existence of the alleged unfair labour practice.
10. The applicant based his claim of an unfair labour practice of the basis:
10.1. One of the interview panel members was not an elected member of the SGB and therefore the whole process should be declared null and void.
10.2. He did not get an opportunity to answer question 5 since the interview panel could not give him an explanation what they meant by factions.
10.3. The interview room did not have a clock which displayed the time I order for him to determine how much time was left for the interview. This severally prejudiced him.
10.4. The applicant contended that the respondent utilized two different EDO’s during the interview process. One for the shortlisting and another for the interview which according to him was irregular.
11. I am required to determine on the balance of probabilities whether the applicant has established that the respondent committed an unfair labour practice against him by not promoting him to the position of Principle of Newell High School.
12. It is the applicant’s argument that Ms Mdinge was not an elected SGB member and therefore should not have formed part of the interview panel. He was relying on a list of SGB members which he received when he attended an Alumnum gathering. He submitted that this list did not include Ms Mdinge. He also submitted in his closing arguments that a request was made to the respondent, after the conciliation meeting, to make the minutes available of the elected SGB members but the respondent never supplied him with it. There was therefore no evidence that Ms Mdinge was an elected SGB member. The fact that the applicant made the aforementioned request is evident that the applicant was aware that he bears the onus to proof his claim. The applicant was represented by an attorney and his representative could have subpoenaed the information from the respondent.
13. The respondent’s witness, Mr Hawana testified that he arranged a by-election after the Alumnum meeting which the applicant was referring to and Ms Mdinge filled one of the vacancies which existed on the SGB. This was not disputed by the applicant. It is not only documents which establishes a fact but oral evidence of an eye witness also satisfies this requirement. Mr Hawana submitted that he personally arranged a by-election and he attended it where he witnessed the election of Ms Mdinge. He went so far as to testifying that Mr Toba wanted to give him the results for submission to Ms Nana at the district office. He refused to take the documentation and informed him that he should submit it himself since he was the appointed election officer. He further submitted that the documentation contained the nomination and ballot papers and should be available in the SGB office at the district office. The question in my mind is why the other elected SGB members would and the EDO accept Ms Mdinge to impose herself on them while she was not elected. It seemed to me that the applicant was alleging that the rest of the SGB did not know what the law require for a person to be part of the SGB or the interview panel. On the basis of the undisputed evidence of Mr Hawana, I therefore conclude that the applicant failed to establish that Ms Mdinge was not an SGB member.
14. The second contention of the applicant was that he did not have sufficient time to answer the fifth question since the SGB could not give him an explanation of the meaning of the word, factions. The applicant conceded that he was given 20 minutes for the interview and 10 minutes for his presentation. The applicant did not dispute the evidence of Mr Havana that he took his own time to write down the names of the SGB members and interrogated them about whether they were entitled to serve on the interview panel. It was also the applicant’s submission that he required the SGB to explain what they meant by factions since he was of the view that the term factions are used in political circles and is therefore a political term which describe different camps. He was therefore aware that this SGB interview panel which consist predominantly of parents, who might not have his understanding as himself as an academic, meant by the term. It took the EDO to tell him the meaning which he already knew. The undisputed evidence of the respondent was that the same question was posed to the rest of the interviewees and none of them asked for clarity since they understood what was meant with this question. The applicant was only complaining about question 5 but the fact is that even if he was awarded full marks for the fifth question, he would still not have surpassed the third best scored candidate. The general impression that I got from the scores was that the applicant did not have a good interview irrespective of the fifth question. I therefore conclude that the applicant failed to establish that he was prejudice by the formulation of the fifth question.
15. The applicant submitted that the absence of a clock on the wall prejudiced him. The applicant and all other candidates was interviewed in the same venue and was therefore subjected to the conditions. It was therefore upon the applicant to manage the time which was allocated to him for the interview. The undisputed evidence of the respondent was that he wasted his own time by writing the names down of the interview panel and arguing about a term which he already understood. I therefore submit that this complaint of the applicant is unfounded and therefore I reject it.
16. The final issue which I need to deal with is the contention that the respondent utilized two different EDO’s for the shortlisting and interviews respectively. The applicant was requested to indicate which legislation or collective agreement he relied on which made him to arrive at the conclusion that this was an irregularity. The Employment of Educators Act 76 of 1998 and PAM only provide that the Department of Education must have a representative present during the sifting and interview phase. The Act and all other collective agreement for both provincial and national ELRC chambers are silent on this issue. The only provision is that the EDO should be the Resource Person in the event of interview is for a school principle position. The applicant could also not indicate what prejudice he suffer based on the fact that the sifting and interview processes was presided over by different EDO’s. This contention of the applicant should also therefore be rejected.
17. In order to be successful in a dispute regarding promotion, it is imperative that the applicant or aggrieved employee must establish that he/she was the better candidate for the position. At no stage did the applicant allege that he was the better candidate than the incumbent. The fact is that he was ranked last by the interview panel after the interviews. I therefore find that the applicant has failed to establish that the Department of Basic Education-Eastern Cape has committed an unfair labour practice against him by not promoting him to the position of Principle of Newell High School.
18. The applicant, Archibald Tobile Dikjan failed to establish that the Department of Education-Eastern Cape committed an unfair labour practice related to promotion against him.
19. The applicant dispute is hereby dismissed.
Panelist: Raymond Jonathan