Case Number: PSES373-19/20EC
Province: Eastern Cape
Applicant: DRAAI NOEL DAVID
Respondent: 1st Respondent DEPARTMENT OF EDUCATION, EASTERN CAPE and 2nd Respondent C.J. HOOFMAN
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Department of Education: Eastern Cape in Humansdorp.
Award Date: 14 November 2019
Arbitrator: MBULELO SAFA
Case Number :PSES373-19/20EC
Commissioner: MBULELO SAFA
Date of Award 14 November 2019
In the ARBITRATION between: -
DRAAI NOEL DAVID
DEPARTMENT OF EDUCATION, EASTERN CAPE
Applicant’s representative: Ms N. Ngxonono
Applicant’s Address: 129 COMMERCIAL ROAD, PORT ELIZABETH
Telephone: 042 2840276
Telefax 042 2840276
1st Respondent’s Representative: Mr Euan Hector
1st Respondent’s Address DEPARTMENT OF EDUCATION, Graaff Reinet
2nd Respondent Representative: In person
2nd Respondent Address: Hankey Secondary School
Telephone : 0422840501
Telefax : 0422840276
Email : firstname.lastname@example.org
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter was set down for arbitration on the 30th October 2019 at the offices of the 1st Respondent, the Department of Education: Eastern Cape in Humansdorp.
2. The Applicant, Draai Noel David was represented by Ms N.F. Ngxonono from SADTU, the First Respondent was represented by Mr Euan Hector who is their Labour Relations Officer and the Second Respondent, Mr CJ Hoofman appeared in person.
3. The parties proposed and it was agreed that they will submit the closing arguments by the 4th November 2019. All parties submitted on the day.
4. The proceedings were recorded in an audio tape.
ISSUES TO BE DECIDED
5. Whether or not the decision of the 1st Respondent not to appoint the Applicant to the post of Head of Department was substantively and procedurally unfair, and to make an appropriate award.
BACKGROUND TO THE ISSUE
6. The 1st Respondent advertised an HOD post in the bulletin, Volume 2 of 2019. One of the posts was the post at Hankey Secondary School (the school), post number 509. The post was for the HOD for Languages.
7. The Applicant applied for the post, was shortlisted, interviewed but was not appointed. Instead the 2nd Respondent was appointed.
8. Unhappy with the fact that he was not appointed the Applicant referred an unfair labour practice dispute to ELRC. The dispute remained unresolved at conciliation and it was then referred to arbitration.
9. At conciliation/pre-arbitration this dispute was combined with another dispute, case number PSES390-19/20EC. The cases were heard together, but I took a decision that in order to avoid confusion each of the cases must have its own award.
10. The relief sought by the Applicant is compensation.
SURVEY OF EVIDENCE AND ARGUMENT
11. The Applicant testified himself and also relied on the documents he submitted at arbitration.
12. The 1st Respondent did not call any witness but relied on the bundle of documents that were submitted.
13. The 2nd Respondent led evidence and indicated that he was going to rely on the bundle submitted by the 1st Respondent.
APPLICANT’S EVEDENCE AND ARGUMENT
14. The Applicant testified that he had applied for the post of the HOD at the school and was invited to the interviews on the 17th April 2019. The interviews were going to be on the 23rd April 2019 at 12h00.
15. He felt he was deliberately prejudiced by being a given short notice as a result he did not have sufficient time to prepare for the interviews. The notice also fell on the Easter Weekend and by then he already had prior plans for the weekend. According to the PAM document he was supposed to be given a notice of five working days.
16. He testified that the school does not have a School Governing Body (SGB) but just a group of people making decisions. The proof that Mr Japhta was a parent/guardian of a child at the school was only done a few days before the interviews.
17. He did not receive proof that there was a ratification meeting of the SGB in the form of minutes.
18. Under cross-examination from the 2nd Respondent he said he rejoined the English department in June 2018.
19. Mrs Van Eyk, testified under oath that the SGB has four (04) parents, one teacher and no learner. The other members who were elected with these members have resigned. The SGB was functional as they regularly have their meetings. The parent members of the SGB were; Mrs Damons, Mr Katra, Ms Japhta and Ms Van Schalkwyk. The educator member of the SGB was Mr Alexander.
SECOND RESPONDENT’S EVIDENCE AND ARGUMENT
20. Mr CJ Hoofman testified under oath that he has been in the English Department since 2010.
21. Throughout that period from 2010 he has received good performance ratings and also received an award from SADTU.
ANALYSIS OF EVIDENCE AND ARGUMENT
22. The Applicant indicated that he was challenging the procedure on two areas; the short notice he was given to attend to the interviews and the status of the SGB.
23. The Applicant was given six (06) days’ notice, however some of the days were not working days. Second Respondent was also given notice of the interviews on the same date as the Applicant. This was indeed in contravention of B.5.6.5 of PAM which provides that the notice must be at least 5 working days before the date of the interviews.
24. Clause 51 of ELRC Collective Agreement 3 of 2016 holds that strict compliance with PAM is not necessary. According to the collective agreement what is sufficient is substantial compliance.
25. That the Respondent gave the Applicant six days to me is sufficient compliance. It is therefore my finding that the Respondent sufficiently complied with PAM and also with Collective Agreement 3 of 2016.
26. With regards to the status of the SGB the Applicant and his witness gave contradicting evidence. The witness of the Applicant gave evidence that there is a functioning SGB and went on to give the names of the members. This is contrary to the Applicant who testified that there is no SGB at all at the school.
27. The version of the witness of the Applicant was corroborated by the Second Respondent who not only testified about the existence of the SGB but also stated that the SGB was going to have its meeting on the day of the arbitration.
28. In his evidence, the Applicant testified that he wrote a letter to the principal requesting some information which he was going to use to support his version about the status of the SGB. To write a letter to the principal was not sufficient. There are other ways which the Applicant could have used to compel the Respondent to give him whatever document he wanted. He could have subpoenaed the document or compelled the Respondent in terms of section 16 of the LRA.
29. The onus rested with the Applicant to prove the unfair labour practice. It was his responsibility to bring all the evidence in support of his contention. He failed to bring sufficient evidence and prove his version means his contention is not supported by evidence.
30. In his arguments the Applicant raised issues and evidence that was not led during the arbitration. He submitted lists of learners and their parents and made conclusions thereon without having submitted such evidence during arbitration. He also submitted a letter written by SADTU to the First Respondent requesting some documents. To present the evidence at that stage is unfair to other parties as they have not been accorded an opportunity to engage and cross examine the evidence. I have taken a decision not to accept evidence that was presented during the closing arguments in that it was not under oath and challenged through cross-examination.
31. The Applicant did not adduce sufficient evidence to prove his contention that the SGB at the school was not existing. The Applicant also failed to adduce evidence to support his contention that he is entitled to his relief. In the circumstances I hereby issue the following award;
32. The process in appointing the Second Respondent as the HOD at the school was procedural and substantively fair.
33. The Applicant is not entitled to the relief he sought.
Mbulelo Safa : ELRC Panelist