Case Number: PSES 2077 EC
Province: Eastern Cape
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Venue: GRAAF REINETTE
Arbitrator: S C TAKU
EDUCATION LABOUR RELATIONS COUNCIL:
Case no: PSES 2077 EC
In the matter between:
USAPE obo HANISE Applicant
DEPARTMENT OF EDUCATION
(EASTERN CAPE) Respondent
1.This arbitration was conducted under the auspices of the Education Labour Relations Council Office of the Department of Education in Graaf Reinette on 20 March 2002 at 10h00. The Applicant union alleged unfair labour practise relating to the demotion of the employee in terms of item 2(1)(b) of schedule 7 of the LRA. The matter was conciliated under the auspices of the ELRC in the same offices in Graaf Reinette on 5 March 2002 but it could not be resolved and the conciliation officer issued a certificate of a failed conciliation thereon.
2.At the arbitration hearing, the Applicant attended and was represented by Mr M Nohesi, for the USAPE (“the Union”) and the employer, Department of Education, was represented by Mr M Jack.
3.BACKGROUND TO DISPUTE:
See below the minutes of the disciplinary hearing were submitted as evidence thereon. No witnesses testified thereon. The representative submitted arguments and counter arguments thereon.
4.ISSUE TO BE DECIDED:
The purpose of this arbitration is to determine whether the demotion of the Applicant constituted an unfair labour practice.
5.SURVEY OF EVIDENCE AND ARGUMENT:
The Applicant was a Principal at Johnson Ngongoza High School in Somerset East. Mr Hanise was charged with misconduct under the Employment of Educators Act of 1998. It is common cause that the incumbent was charged for a misconduct that related to the charges:
Mismanagement of the school by failure to implement departmental procedures with regard to teachers’ absenteeism in terms of section 18(1)(a) of the Employment of Educator’s Act, 1998 and section 24 of the Regulations regarding the terms and conditions of employment of educators.
Principal allowed teachers and learners to arrive late for school and leave early (in terms of section 18(1), EEA 1998).
Principal failed to contact and inform the staff on matters affecting the proper functioning of the school (EEA, section 18(1)(a) and PAM documentary chapter)./.
Principal fratesied with female learners during school hours. The charges were subsequently withdrawn by the Department/
Principal failed to submit to the district manager the work plan for MIP work allocation and time table for the school (section 18(1)(4) the EEA).
Principal failed or refused to implement the decision of the meeting of all stake holders as instructed by the Department officials from Bisho (section 18(1)(c) of the EEA.
Principal failed to keep proper records of finances (section 1(b) of the EEA).
Principal used school funds for purposes not intended for such (section 18(1)(b) of the EEA.
Principal failed to comply with financial regulations pertaining the se of school funds (section 18(1)(b) of EEB)”.
6. The disciplinary hearing regarding the abovementioned charges was held on 14 and 15 November 2001 and was chaired by Mr M Sangqu. Both parties were represented thereat. AT the disciplinary hearing, evidence of witnesses has been led thereon. The Applicant pleaded not guilty or acquitted in respect of charge 1, but was found guilty on charges 2 and 3 respectively.
7. The sanction that was imposed by the chairperson was demotion to a post of deputy principal in terms of section 18(3)(g) as well as final written warning, in terms of section 18(3)(c)(4) of the Employment Educator’s Act of 1998.
8. The Applicant union contended that the sanction was unmerited and that the demotion was both procedurally and substantively unfair. It now sought an order setting aside the findings of the chairman of the disciplinary hearing.
9. SURVEY EVIDENCE AND ARGUMENT:
9.1 Mr Nohesi, for USAPE, argued that the matter arises subsequently to the hearing that was held from 14 to 16 November 2001, wherein M Monde Sangqu presided. The dispute relates to both procedural as well as substantive unfairness in terms of his findings as well as the sanction that was given to the Applicant. He agreed that was a worse hearing officer who handled the issue with the sensitivity it deserved.
9.2 It was float. In his recording he never mentioned that the Applicant was represented by him (Mr Nohesi). That is Exhibit A. He elected only to mention that departmental representative. He agreed further that showed the business of the presiding officer.
9.3 On the day of the conclusion of the hearing, there was an agreement that he will make his findings and immediately meet the union to mitigate against those findings in Port Elizabeth. He agreed further that the meeting was never held despite numerous interaction by him (Mr Nohesi). The presiding officer elected to take his right on behalf of the Applicant.
9.4 He agreed further that was his right and never waived such right in any stage. He agreed that, that was a resultant or constitution a procedural irregularity.
9.5 He agreed his right to mitigate on behalf of the applicant relates to mitigation against the chairperson findings. Instead, the chairperson furnished the union with the records and his sanction and findings. He agreed further that amounted to a procedural irregularity. He argued further that the chairperson failed to record closing arguments of the union as well as that of the employer representative (Mr E Gongomzola). According to him, had the chairperson of the employer representative, he would have been able to arrive at a sober decision.
9.6 He submitted that in regard to charge 3, the employer respresentative made it clear that there were not funds that have been stolen, eaten or squinted by the Applicant. He agreed further that the presiding officer failed further to indicate that the employer withdraws specific charges against the Applicant in his record due to lack of evidence.
9.7 He agreed that was irregular. The findings, if they were true, the Applicant had to fly but those issues were dealt with before the hearing and there was a lack of evidence thereon. The charge that was withdrawn by the employer was a serious misconduct in terms of the Educational Law Amendment Act, would have fallen under section 17. The employer had a thirst and hunger to hang the Applicant. Such charge or misconduct against the Applicant was put without substantive evidence, has dented the image thereof and brought his good name and the union into disrupt. The agreed further those allegations were known by other parties.
9.8 He agreed further that the Applicant was acquitted with regard to charges 1. He submitted that, in terms of charge 2 and 3, the presiding officer made findings that he himself cannot stand for. His motive was to find a fault on the Applicant.
9.9 He submitted that, the findings of the presiding officer were unmerited in terms of charge 2. The charges related the principal failure to submit the work for the MIP, work location and time table for the school to the district manager as well as the failure for refusal to implement the decision of a meeting of all stake holders as instucted by the department official from Bisho. He agreed the evidence of Mr Hector who was an employer witness, was crucial. The former agreed that the Applicant had complied with 60% of the work that he was expected to do. The EDO adhered thereto. He submitted further that the Applicant was held or found responsible for the formulation of policies delay by the institution.
9.10 He argued further that it is not the principal who has the legal duty or responsibility to make a school policy in terms of the SA Schools Act, 1996. He agreed that it is the obligation of the Governing Body and therefore the principal could not be held liable for what in terms of the law, was not his obligation. He further argued that the EDO admitted that he was at all times informed by the principal of the consultative process that was going on in relation to the formulation of the school mission and vision. He disputed the findings of the Chairperson to find the Applicant guilty for what in law does not fall within his competence. He agreed further that a person of he former’s caliber who is from the Provincial office, understands the policy of the Department. He agreed further that the EDO agreed that all documents and fall within the competence of the principal, have been submitted and complied for. He argued further that the findings of the chairperson, raised doubts as to how he arrived at his decision. According to the chairperson: “It was clear that Mr Hanise was reluctant to accept the recommendations of the meeting of 7 November 2000 as a result he did not submit all the required documents on time and that therefore frustrated the food intentions of the resolutions of the meeting something that negatively affected the culture of learning and teaching and service call that the department is trying to restore in the institution.
9.11 He argued further that evidence had led that those documents were indeed submitted. Another aspect that was that the charge did not relate tot he failure of the principal to submit those documents in time, but failure to submit the work plan, work allocation and timetable for the school to the district manager. He penetrated that Mr Hector submitted under cross-examination, that those were submitted. The question of time was not part of the charge. To find him guilty on that basis was a miscarriage of justice. The presiding officer’s statement that the Applicant was reluctant to implement the recommendation of that meeting was flawed. He argued further that the Applicant had no obligation to accept the recommendations of that meeting. It had departmental officials and SADTU. The employer selective elected not to invite his union that is the USAPE thereon, and that was abuse of authority.
9.12 He agreed further that, in the matter between Alexander v The Department of Education (EC), it was held that was the abuse of power by the Department and perhaps the abuse of the existence of the tripartite alliance. He agreed that the outcome of the meeting were a departure from the policy of the Department because any person who makes a decision, cannot make that decision outside the policy possession.
9.13 In this case, the meeting decided the SMT (School management team) should be extended to include post level 1 teachers or educators. That reflected ignorance of the officials who attended thereto. He argued further that the Department had issued a policy wherein it was stated that the SMT would be composed of the principal, the deputy principal and heads of the Department. No post level 1 educators are catered for in terms of the Green File. He agreed further that the principal compromised and implemented.
9.14 The recommendations he had no objections thereto. He humbly requested an order that the SMT be duly constituted in accordance to the departmental policy and also setting aside of the findings of the presiding officer in regard to charge 2, because they cannot be even substantiated by himself therein.
9.15 He argued that the presiding of officer was not in a position to provide any conclusive basis for his findings in respect of charge 2. That charge related to the principal’s failure to keep proper record of finances, user of school funds for purposes not intended for such and failure to comply with financial regulations pertaining to use of school funds. He submitted that the employer representative argued that there were no monies that had been stolen there. And that there was no evidence pertaining to use of school funds by the Applicant for purposes not intended for. He agreed that an amount of R820 was loaned to the principal and he was not even a signatory to the school account. That money was a fund raising initiative and was paid back to the institution by the Applicant. He argued further that the Applicant led evidence that he needed a clerk to keep proper record and assist the treasurer. The treasurer argued further that the presiding officer, had despite revealing evidence thereat that, the treasurer did not keep up to scratch as duly appointed by the Governing Body to ensure that proper record are kept of the funds, but held that principal liable thereof. He maintained further that the treasurer lost receipts and the principal asked for account or resets book and that the Department was aware of his endeavors. The Department alleged that the Applicant failed to comply with financial regulations regarding the use of school funds. He argued further that the applicant testified under oath that he had never been provided with training by the former as to basic financial management. He maintained further that the employer equipped the employees with the necessary skills to ensure that the employees effectively discharged their responsibilities in terms of the Skills Act. He argued further that the Department never did that undertaking which was refuted by the latter in its evidence. He maintained that the Applicant did not have any accounting background and that was also unchallenged by the former. He maintained further that the employer has an obligation and duty to provide guidelines and counseling and everything to the principal but instead he was charged of misprinting, mismanaging and eating funds of the school.
9.16 He argued further that there was no basis of a funding that “he was negligent in terms f financial management as head of the school. This is irrespective of his argument that there was no administrative clerk in the school and that he was never trained on financial management, his experience as a principal alone was enough for him to be able to understand basic financial management principles” was worse conclusion. No presiding officer who is deemed to be impartial to arrive at.
9.17 He humbly requested that the demotion of the Applicant to a Deputy Principal, as per the sanction of the presiding officer thereon, be set aside, and that the Applicant be reinstated as a Principal of John Ngongoaza High School. The principal was also given force leave under extra-ordinary circumstances. He argued further that the Department was irregular as the said leave is in conflict with a clause on just administration in terms of the Constitution and Promotion of Administrative Justice Act, 2000, respectively. The Applicant was never given valid reasons for his suspension. That sending a leave of the principal by the Department must be declared null and void. He humbly requested further that the whole findings of the presiding officer be set aside in his entirety.
9.18 On counter argument, Mr M Jack submitted that the sanction of the presiding officer was fair. He agreed that all the parties were given a chance to state their case. He agreed that such sanctions should remain in respect of the charges.
9.19 He maintained that the argument that such was harsh and therefore a lesser sanction should have been imposed. He agreed that, compliance with 60% of the work done was not enough. The instructions are given are very clear, that failure to do that is non-compliance and therefore needed to be addressed more seriously.
9.20 He agreed that the Principal is the manager of the institution who must initiate everything including the school body. As a manager, he had the responsibility to engage himself thereto. He agreed that the situation at school was and is abnormal and necessitated the application or implementation of abnormal procedure to ensure that the culture of learning was restored thereof.
9.21 He maintained that, in respect of the meeting on 11 November 2000, that is was flood, the decision thereat was through the instructions of the EEC (head of the Department). He applied his mind and came to a conclusion to restore a culture of learning by thereby applying or implanting such abnormal procedures. He agreed that the exclusion of level 1 educators could not promotion of a productive management. He agreed further also, they are employees and the recommended actions were to address the culture on learning. Such recommendations were reasonable and were implemented and promoted representivity. That ensures good management.
9.22 He agreed further that the principal regarding to finances of the school, he can be delegated but at the end cannot delegate his responsibility as manager and therefore is accountable for everything that happened at school. The treasure had nothing but the meeting was directed to the Principal has a manager thereof. He argued that the school fund was not intended for loans because that was not a loan scheme. He maintained that such money must be used for the promotion of resource that promote the culture of learning thereof. The fact that the Principal consciously took a loan was contrary to the culture of learning thereof. That cannot be condoned and in fact, was unacceptable.
9.23 He agreed that when the Principal is appointed, he undertakes to be accountable of all responsibility associated thereto. It was also his responsibility to raise his voice and ask for any assistance. He maintained that by his principal capacity, he was able to manage finances. He cannot delegate and sit back but delegate and monitor all the reports incidently to funds thereof.
9.24 If he had monitored he could have had a clear indication of what was happening at the school. He could have had a clear answer to R500 loan that was given to an unknown student if he could have monitored the collection as well as the proper recording of funds by the treasurer. Those are monies that are collected from school grants but were used for loans. He could have known the activities of the clerk or treasurer and that was his responsibility and was accountable by 40% about any activities that should have been monitored thereby. He could have reported any loss of accounting books in writing to the Department.
9.25 That was a clear failure and incompetence to exercise his duties with diligence. He agreed that, charge 1, the Applicant was found not guilty as charged and that the sanction was decided after following a fair procedure and related to a fair reason for misconduct, and therefore the chairperson applied his mind thereon that sanction was fair.
9.26 On a response by the union, the representative agreed that there was no amount that was allegedly loaned to any student and that the onus rested of the employer to prove that fact and provide evidence thereof, but failed. The Applicant disputed that allegation. And that was not also indicated in any report and the Applicant requested to be provided with the name of that student but it did not happen. Such amount was only recorded in the Department auditors. Such allegation was unfounded as the Applicant had no knowledge thereof. He maintained that the Applicant has no accounting background and not be responsible for the treasurer’s duties that has been appointed by the Governing Body thereof. He maintained that the Principal was only responsible for the day-to-day management of the school. He was not a signatory to the account of the institution. He agreed the Principal asked to be provided by books by the treasurer, but the latter not accountable to the former but to the Governing Body.
9.27 The Governing Body had a right had a right to refuse the request of the Applicant. He maintained that if you delegate, you also remain accountable and that was not arguable. He agreed that the Principal was not signatory to loans if the Department has made such policy pertaining to loans to the school, the Principal would not have made any mistakes. He maintained that knowing is not the same as doing those duties when you have no skills. He maintained that the Department should have provided those skills. The Applicant was unaware of those duties and even the employers’ witness agreed thereto. He maintained that the employer cannot abdicate his responsibility to provide skills.
9.28 He disputed that, compliance with 60% of the work done was not good enough. He admitted evidence was let there were no documents that were outstanding at the hearing. He maintained that the charge does not relate to good enough performance of the teacher, but refused to submit thereof. That was a miscarriage of just. He maintained that the employer did not charge the employer for failure to comply with duties. He maintained the, the representative agreed that the Department applied abnormal processes in abnormal circumstances.
9.29 The application of abnormal circumstances were irregular in that meeting. He agreed that in the matter between NUE v Department of Education (Eastern Cape), relating to pension. the commissioner held that it was not within the competence of the Department MEC to ride short over State policies or acts of Parliament. That it remains with their own competence to go back to the cabinet in that regard to get funds.
9.30 He maintains that if the SMT changes their policies as they please, that will result to administrative chaos. They cannot change those policies willingly without regarding them. He agreed that the implementation or appointment of post level 1 educators to SMT, was a reckless route. He maintained that the Department must not absolve itself of its responsibility to institute disciplinary proceedings against its SMT, if that was incapable of exercising its own responsibilities, provided thereof.
9.31 The submissions that, the dispute relates to the harshnss of the sanction wsa without merits. He maintained that hte union dispute their findings as in charge 2 and 3, the negate of the right to mitigate on behalf of the Applicant, and the harshness of the sanction. That must be seen in relation to contention to both charges 2 and 3 and not in isolation thereon. The employer should have provided the necessary guidance, training and counselling. The employee testified that there was not training regarding to financial management. The process was not recorded and the serous charges were withdrawn. The presiding officer undertook to allow the union to mitigate on behalf of its member after his findings thereof, but that never happened. He argued that the argument advanced by the Department were unpersuasive. The Department has to train its presiding officer.
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 2077 EC
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR DEMOTION
ARBITRATOR S C TAKU
DATE OF ARBITRATION 5 MARCH 2002
VENUE GRAAF REINETTE
APPLICANT MR NONHESI
RESPONDENT MR M JACK
DATE OF AWARD