Case Number: PSES 466-03/04 FS
Province: Eastern Cape
Applicant: T G SEBOKO (SAOU)
Respondent: DEPARTMENT OF EDUCATION FS
Issue: Unfair Dismissal - Constructive Dismissal
Arbitrator: L J LEKALE
ARBITRATOR : L J LEKALE
CASE NO : PSES 466-03/04 FS
DATE OF AWARD:
In the arbitration between:
SAOU obo T. G. SEBOKO : EMPLOYEE PARTY
DEPARTMENT OF EDUCATION FREE
STATE : EMPLOYER PARTY
EMPLOYEE’S REPRESENTATIVE : MR P. H. T. COLDITZ
TELEPHONE NO. : (051) 4473605
FAX. : (051) 448 1816
EMPLOYER’S REPRESENTATIVE : MR A. J. L. GREEFF
TELEPHONE NO. : (051) 404 4203
FAX NO. : (051) 404 4388
1. DETAILS OF HEARING AND REPRESENTATION:
1.1 The arbitration hearing was held at Bloemfontein on the 04th March 2004 and the 03rd May 2004;
1.2 The union was represented by Mr P. H. T. Colditz, a local attorney;
1.3 The employer party, on the other hand, was represented by Mr A. J. L. Greeff, its industrial relations practitioner;
1.4 At the end of the proceedings on the 03rd May 2004 the employer party agreed to deliver its closing statement in writing on or before the 10th May 2004.
2. ISSUE TO BE DECIDED:
2.1 The question to be determined was whether or not the union member was a victim of unfair labour practice as contemplated by section 186(2)(b) of the Labour Relations Act (the Act) at the hands of the employer;
2.2 In the event of the aforegoing question being decided in the affirmative, I was required by the union to quash the final written warning given to its member and, further, to direct the employer party to reimburse the union member the R2 000.00 deducted from his salary as a fine with interest.
3. BACKGROUND TO THE ISSUE:
The union referred a dispute concerning alleged unfair labour practice to the ELRC on behalf of its member on the 17th October 2003 and gave the date on which the dispute arose as being the 02nd September 2003.
An unsuccessful attempt at conciliation was made on the 05th March 2004, whereafter, the matter proceeded to arbitration on the 04th March 2004. The matter could, however, not be finalised on the said date and was postponed to the 03rd May 2004 for finalisation.
4. SURVEY OF EVIDENCE AND ARGUMENT:
The parties adduced oral evidence and, further, submitted documentary evidence by mutual consent.
4.1.1 DOCUMENTS SUBMITTED:
(a) Exhibit A : The union’s bundle of documents;
(b) Exhibit B : The employer’s bundle of documents;
(c) Exhibit C : Copy of a hand written note entitled
“Motivation of ranking in order of
(d) Exhibit D : Copy of a hand written note entitled
“Short listing “List A” “Minutes”
and dated the 19th December 2000;
(e) Exhibit E : Copy of a hand written note entitled
“Short listing List B Minute Book”.
4.1.2 ORAL EVIDENCE:
A. The union’s case:
The union member, Thabo George Seboko, testified under oath to, inter alia, the following effect:
(a) he is employed as a principal at Seithati Public School (Seithati) at Botshabelo;
(b) during 2000 the post of deputy principal was vacant and was, as such, included in the vacancy list which was published by the employer;
(c) he received applications for the said position that he took to the School Governing Body (SGB) for shortlisting and interview purposes;
(d) the SGB appointed a panel which had to go through the applications to shortlist for interview purposes;
(e) interviews were, eventually, conducted and a recommendation was made for the appointment of one Mrs M. E. Matsolo;
(f) events leading to her appointment were as follows:
· Ad List A: there was only one application received and the applicant did not meet the minimum requirements. His application was disqualified and necessary entries were made by the secretary of the day in the minute book;
· Ad List B: five candidates were eventually shortlisted on the 28th December 2000 after all the applications were considered by the SGB together with representatives of labour viz. SADTU and NAPTOSA. Minutes were also kept by the deputy secretary because the secretary was late;
· Ad interviews: interviews were conducted in a fair and proper manner with members of the panel completing the attendance register and signifying their satisfaction with the process. The School Management Developer (SMD) Mr Santo was supposed to represent Human Resources and to observe the process. He observed part of the process and left because he had many schools to attend to. The two (2) union representatives left before a decision could be arrived at with regard to the raking of candidates because it was late. He attended at their homes to ensure that they also signed the relevant form. He advised the panel with regard to Affirmative Action. The appointment was, thus, made in accordance with the employer’s rules and regulations;
· he was, however, eventually charged with misconduct after two investigations had been conducted;
· he was found guilty and no reasons were furnished for the findings;
· he knew that it was a misconduct to influence the process negatively;
· the minutes of the interview process are available as proof of what transpired;
· he only advised the panel that theirs was to recommend and the decision with regard to appointment lies with the employer;
(g) he was not guilty of any misconduct.
B. The employer’s version:
Four (4) witnesses testified under oath to the following effect, among others:
1. TEBOHO MOKOENA:
(a) He is presently employed in Labour Relations Directorate;
(b) He was the investigating officer into allegations of misconduct levelled against the union member;
(c) There were complaints against the union member from SADTU. It was alleged that he interfered with the process when the post of deputy principal was filled;
(d) His report is contained on page 11 of Exhibit B;
(e) A Task Team dealt with the matter and the SMD submitted a report which is contained in Exhibit B as page 22;
(f) There was a need for clarification and further investigation of the matter and, as such, a second investigation ensued;
(g) It was found that there was a misunderstanding with regard to who was to be recommended for the advertised position;
(h) The members of the panel scored candidates differently with the principal interfering with the process;
(i) According to Resolution No. 5 of 1998, the principal was supposed to serve as an observer because he was a Departmental representative and a resource person;
(j) The principal presented a candidate who scored less as the successful candidate while the SGB wanted a candidate who scored higher marks to be recommended for the vacant post;
(k) There was a walkout staged by some teachers present;
(l) The forms that had to be signed were not signed at the venue of the interviews whereas the practice is for such forms to be signed there;
(m) The principal did not report the discrepancies and the union only reported the same after the appointment;
(n) He eventually recommended that disciplinary action be taken against the principal;
(o) The union member represented to him that he served as the Departmental representative because the SMD was not present;
(p) The union member’s advice with regard to affirmative action would have been correct.
2. MASABATA SONIA MARUMO:
(a) She is employed as an educator at Seithati and was involved in the process of selecting a suitable candidate for appointment as a deputy principal;
(b) She represented NAPTOSA during the process;
(c) On the 19th December 2000 the principal fetched her from home to attend the shortlisting process;
(d) On arrival at the venue the principal told her and other members of the committee that List A had only one candidate and the application did not meet the standard and, further, that he would request List B;
(e) On the 28th December 2000 the principal once again took her to the venue whereat he told her and other members of the committee that there were 32 (thirty-two) applications and that he went through them and established that only five (5) qualified;
(f) The principal did not give them applications to see for themselves and only informed them;
(g) One Tau, an educator and member of the committee, arrived late and demanded to know why one Lekgoaba’s name was not shortlisted, whereupon, the principal stated that there were some discrepancies in Lekgoaba’s application;
(h) She was also present during the interviews and was not satisfied with the principal’s conduct insofar as he:
· did not declare his status during the interview;
· put questions to candidates;
· urged the panel to place candidate Matsolo at number 1 whereas her score placed her at number 3;
· stated that it was in line with affirmative action to place Matsolo as such;
(i) The members of the panel were not satisfied with the principal’s explanation and a long deliberation ensued until she decided to leave because it was late and there was no reasonable prospect that the panel would reach consensus soon;
(j) She announced that she was leaving and duly left;
(k) Late in the evening the principal arrived at her place and directed her to sign a paper where he indicated;
(l) She was not given a chance to read the document in question;
(m) She knows the principal’s handwriting and does not know that of Deputy Secretary of the SGB;
(n) The handwriting on Exhibit D is not that of the principal and on Exhibit E the principal’s handwriting is at the end of the document;
(o) Thirty-two (32) names appear on Exhibit E;
(p) She does not know if consensus was eventually reached by the panel;
(q) She conceded that her name
(d) The principal told him that he perused applications and about 5 candidates qualified for shortlisting;
(e) The principal refused to include Lekgoaba in the list;
(f) The principal relied on affirmative action in insisting on Matsolo’s name being placed at the top of the list;
(g) The panel deliberated for a long time until he also left because of transport problems;
(h) Two (2) union representatives already had left when he left;
(i) When Kanapi left she said they should proceed with their corruption;
(j) It was true that the principal was required to promote affirmative action as the manager;
(k) He has no problems with affirmative action but believes that correct procedure should be followed.
A. The union’s submissions:
Mr Colditz submitted to, inter alia, the following effect:
(a) the charges against the union member were not established by any evidence whatsoever insofar as:
· there was conclusive proof in the form of documentary evidence that the union member did not do shortlisting alone;
· there was no evidence adduced to show that he had a negative and destructive influence on the SGB;
· there was no rule or law prescribing the venue or place where P014 should be signed;
(b) the evidence tendered on behalf of the employer was of a very poor quality;
(c) Mokoena did not investigate the documents despite two (2) investigations having been conducted;
(d) the documents were further ignored on appeal;
(e) the relevant documents were disclosed on the first sitting of the arbitration hearing;
(f) the final warning and the R2 000.00 fine should be reversed;
(g) the R2 000.00 should be repaid with interest at 15,5% per annum from date of deduction;
(h) an order for payment of costs should be made in terms of paragraph 9 of Arbitration Agreement.
B. The employer’s submissions:
Mr Greeff submitted to the following effect, among others:
(a) the employer managed to show that the union member committed the acts of misconduct contemplated by section 18(1)(a) and (f) of the Employment of Educators Act (EEA);
(b) the employer has shown that the union member:
· did the shortlisting of candidates alone; and
· influenced the recommendation of the SGB;
(c) the handwriting on Exhibit E may not be that of the union member but could have been the handwriting of his wife. The onus was on the union to prove the source of the document in question;
(d) the fine of R2 000.00 and the final written warning are still an appropriate sanction;
(e) there exists no cause for an order for payment of costs to be made against the employer.
5. ANALYSIS OF EVIDENCE AND ARGUMENT:
The onus was on the union, as the referring party, to show on a balance of probabilities that its union suffered unfair labour practice at the hands of the employer.
The unfair labour practice complained about by the union was the one contemplated by section 186(2)(b) of the Act. The union, therefore, had to prove that:
· its member was subjected to a disciplinary action short of dismissal;
· there existed no fair reason for the disciplinary action in question; and
· the disciplinary action in question was not effected through a fair procedure.
(a) Disciplinary action short of dismissal:
The parties were in agreement that the union member received a final written warning together with a fine of R2 000.00 on the 20th May 2002 following a disciplinary enquiry into allegations of misconduct levelled against him.
(b) Unfairness of the employer’s conduct:
In establishing the unfairness of the employer’s conduct in relation to the disciplinary action in question, the union had to show “failure to meet an objective standard” which includes “arbitrary, capricious or inconsistent conduct” (see SACCAWU v Garden Route Chalets (Pty) Ltd 3 BLLR 325 (CCMA)).
A final written warning constitutes a serious sanction in the scheme of progressive discipline (see National Union of Commercial, Catering and Allied Workers Union v CCMA, Western Cape & Another (1999)20 ILJ 624 (LC)).
Both substantive and procedural fairness are contemplated.
(i) Substantive fairness:
The union had to show that there existed no fair reason for the sanction in question. In order words, the union had to show that its member was not guilty of the alleged misconduct(s) which led to the imposition of the sanction in question alternatively, the union had to show that the sanction was not appropriate or warranted in the circumstances.
The parties were in agreement that the union member was found guilty for allegedly contravening sections 18(1)(a) and (f) of the Employment of Educators Act in that he allegedly:
· did short-listing of candidates alone instead of involving other panel members;
· decided to present candidate number 3, Mrs Matsolo, as the best candidate and, thereby, caused the recommendation of the SGB to be altered;
· caused the P014 form not to be signed by the union representatives at the place of the interviews.
When all was said and done I was satisfied, on a balance of probabilities, that the union member was not guilty of the alleged contraventions. The aforegoing prevailed because of the following:
· there existed proof in the form of minutes that the shortlisting was not done alone by the union member. The employer contended that there was no proof as to whose handwriting was in Exhibit E. I was, however, satisfied that the employer’s witnesses did not dispute statements part to them that the Deputy Secretary of SGB was the author of Exhibits D and E. The union member’s evidence in this regard was credible, reliable and sufficient;
· the influence, if any, that the union member had on the SGB was in line with the employer’s policy insofar as he was obliged to draw the attention of the members of SGB to the affirmative action policy of the employer. The aforegoing was conceded to by Tau in his evidence under cross-examination. The three (3) witnesses, who testified on this point on behalf of the employer, could not testify as to whether or not consensus was reached with regard to the successful candidate because they left before the meeting was closed. The union’s evidence in this regard stood unrefuted. There was no reason advanced as to why members of the SGB were not called either at the disciplinary hearing or at the arbitration hearing to refute the union’s case;
· there was no rule, regulation or law referred to by the employer to show that the administration, discipline or efficiency of the Department of Education or the school was unjustifiably prejudiced when the relevant forms were not signed at the interview centre. In this regard it should be noted that section 18(1)(f) of the EEA contemplates such prejudice on the part of the school or the employer.
(ii) Procedural fairness:
The union had to show that the sanction was not effected through a fair procedure by proving that it was imposed arbitrarily or capriciously or inconsistently without following due process.
The only contention in this regard was that the presiding officer was attached to the same department as the initiator and was, as such, not neutral.
When all was said and done I was satisfied that the proceedings, when looked in the broad perspective were fair (see generally Anglo-American Farms t/a Boschendal Restaurant v Komjwayo (1992)13 ILJ 583 (LAC).
The union requested the reversal of the sanction. I was satisfied that the reversal of the sanction was reasonable in the circumstances (see section 193(4) of the Labour Relations Act).
The union, further, requested a costs order to be made against the employer on the grounds that it was frivolous and vexatious in defending the matter in the arbitration proceedings. I was, however, not satisfied that there existed any cause for such an order to be made.
6.1 In the premises the union member suffered an unfair labour practice at the hands of the employer;
6.2 The final written warning and the accompanying fine of R2 000.00 are hereby set aside;
6.3 The employer shall, therefore, repay the union member the R2 000.00 deducted from his salary with interest calculated at the rate of 15,5% per annum from the date of deduction to the date of final payment;
6.4 The employer shall expunge the final written warning from the union member’s service record and effect the repayment of the fine on or before the 07th July 2004;
6.5 I make no order as to costs.
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 466-03/04 FS
APPLICANT T G SEBOKO (SAOU)
RESPONDENT DEPARTMENT OF EDUCATION FS
NATURE SALARY DEDUCTED / UNFAIR
ARBITRATOR L J LEKALE
DATE OF ARBITRATION 3 MAY 2004
APPLICANT MR P H T COLDITZ (SAOU)
RESPONDENT MR A J L GREEFF
1 In the premises the union member suffered an unfair labour practice at the hands of the employer;
2 The final written warning and the accompanying fine of R2 000.00 are hereby set aside;
3 The employer shall, therefore, repay the union member the R2 000.00 deducted from his salary with interest calculated at the rate of 15,5% per annum from the date of deduction to the date of final payment;
4 The employer shall expunge the final written warning from the union member’s service record and effect the repayment of the fine on or before the 07th July 2004;
5 I make no order as to costs.
DATE OF AWARD