Case Number: PSES GAAR004070 GP
Applicant: W CHAUKE
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Misconduct
Award Date: 13 June 2000
Arbitrator: M JAJBHAY
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES GAAR004070 GP
In the arbitration between:
W CHAUKE APPLICANT
DEPARTMENT OF EDUCATION GAUTENG RESPONDENT
The present dispute has its origins sometime in 1994. The acrimony between the parties has exacerbated over the years culminating in the dismissal of Mr Chauke. The issue that I am called to determine is whether the dismissal of Mr Chauke has been effected for a fair reason and in accordance with a fair procedure.
At the commencement of the proceedings, the parties informed me that:
.1 The parties would adduce oral evidence;
.2 The parties will use correspondences exchanged between themselves, and the documents are what they purport to be;
.3 The arbitration did not constitute a de novo hearing;
.4 The procedure at the disciplinary hearing was not in dispute.
Prior to his dismissal, Mr Chauke was employed by the Gauteng Department of Education (GDE) for approximately sixteen years. He was an educator at the Thakgalang Junior Secondary School.
Mr Chauke was summoned in terms of a charge sheet to present himself before a disciplinary tribunal as contemplated in terms of the relevant provisions of the Employment of Educators Act No. 76 of 1998 (the Act) on the following two charges:
.1 Charge 1
That on or about 11 November 1999 you disobeyed, disregarded or wilfully defaulted in carrying out a lawful order given to you by a person having the authority to give it, or by word or conduct displayed insubordination, in that you, after being served with a notice issued by the Superintendent General, to report for duty at Laerskool Visserhoek, you failed to carry out such order. You are thus charged with misconduct as defined in Section 17(1)(c) of the Act.
.2 Charge 2
That during the period 30 January 1997 to 3 December 1999, you absented yourself from duty without leave. You are thus charged with misconduct as defined in Section 17(1)(m) of the Act.
In terms of this particular charge sheet, Mr Chauke was informed of his rights as contemplated by the Act. Although the charge sheet and time frames were not initially in strict compliance with the Act, and the regulations together with the Act, however this defect was cured by consent, when the presiding officer at the disciplinary tribunal agreed to postpone the matter to a time mutually agreed upon. Whilst Mr Chauke initially contested the short notice, he ultimately agreed, and correctly, that there was no prejudice as a result of the chairperson of the disciplinary tribunal having postponed the matter to a date when he would have sufficient time to prepare. The tribunal was properly constituted in terms of Section 22(1) of the Act. The tribunal was presided over by Mr K Sono. Mr Sono had testified on behalf of the GED.
Pursuant to the disciplinary hearing, Mr Chauke was found not guilty on charge 2. However he was found guilty on the charge of insubordination. In respect of this particular charge, the disciplinary tribunal thereafter applied their minds to the evidence that was tendered in aggravation and in mitigation, and thereafter recommended that Mr Chauke’s services be terminated immediately. In terms of a letter dated 1 February 2000, the GDE dismissed Mr Chauke with immediate effect in terms of Section 24(2)(a)(iv) of the Act. The letter setting out the dismissal, advised Mr Chauke of his right to appeal, however Mr Chauke did not exercise this particular right, and referred the matter directly to the Council in terms of the dispute resolution procedures.
The events that led to the disciplining and ultimate dismissal of Mr Chauke can be summarised as follows:
.1 On 10 November 1999, the GDE through its Superintendent General, communicated a letter to Mr Chauke. The salient part of the letters are set out hereinafter.
RE: TRANSFER - YOURSELF
Cognisance has been taken of the content of your response dated 01 November 1999 to the alleged abscondment.
Please note that the department takes strong exception to the unprofessional tone of your reply and will not tolerate such an attitude.
I wish to bring to your attention that the Department can no longer continue remunerating you, while you are not rendering any effective services.
You are therefore kindly instructed to report at Laerskool Visserhoek in De Wildt, on receipt of this notice, while your matter is being attended to. Failure to comply will result in your salary payment being frozen pending a formal charge of misconduct.
In the event of you not knowing the whereabouts of the school, you are at liberty to contact Mr Nkosi at the N4 District Office, who will assist in this regard.
.2 Mr Chauke did not attend to Laerskool Visserhoek as requested in the above letter. He believed that the employer, i.e. the GDE could transfer him without his prior consultation and consent.
.3 During or about 24 August 1994, Mr Chauke was charged by the then Department of Education and Training. However on or about 7 November 1995, all of the charges were withdrawn. Thereafter, Mr Chauke was assured that he would be reinstated at the Thakgalang Secondary School. As a result of the attitude of the principal, this was not adhered to. There was a strained relationship at the school, and it was alleged that the principal, some of the educators, and the learners did not want Mr Chauke to teach at that school. However, Mr Chauke presented a petition signed by a few educators, which in principle stated that they supported his return to the Thakgalang School. There was some doubt as to the particular author of this petition. One of the signatories to the petition was being disciplined as a result of him having drawn a firearm at the principal at school.
.4 In terms of a memorandum from the Superintendent _ General to the MEC for Education dated 6 December 1999:
“3. At the beginning of 1996, academic year, Mr Chauke reported to the school before arrangements could be made to facilitate his return. This action of his led to serious disruptions at the school which resulted in him no longer being welcome at the school”
1 The particular memorandum further sets out the facts and the following items are important:
“4. The District Office made numerous attempts to have him return to the school but all were in vain. Mr Chauke subsequently remained at home until January 1997, when he was then utilised in the District Office.
5. On 30 January 1997 he demanded a job description from the District Director who indicated that he could not supply him with one since there were no students in the District Office. Mr Chauke then verbally abused the District Director and the Director requested him to leave his office.
6. Mr Chauke was then requested to report to the District Office while attempts were being made to resolve his matter. Mr Chauke was subsequently charged with misconduct (copy of charge sheet attached). Mr Chauke was found guilty on all charges and he was given warning in this regard.
7. During this time Mr Chauke failed to resume his duties. His salary was stopped, upon instruction from the District Director, and was thereafter reinstated for reasons unknown to Head Office.
8. In the meanwhile Mr Chauke was declared in excess and attempts were made to have him placed elsewhere.
9. Mr Chauke was issued with an instruction on 11 November 1999 to resume duty at Laerskool Visserhoek since he was not effectively rendering any services.
10. An instruction was issued for the “freezing” of Mr Chauke’s salary on 18 November 1999 and his last salary was paid to him on 30 November 1999 due to the instruction being issued after the closure of the run for the November payroll. Mr Chauke’s salary for December 1999 has been stopped.”
.5 The above can safely summarise the testimony. To a large extent the aforesaid are common cause. An important point is that there was an altercation which resulted in the physical assault between Mr Chauke and the District Director. This was largely as a result of Mr Chauke’s frustration in not having been reinstated at the Thakgalang School.
.6 After having considered the documentary evidence, I am satisfied that the relationship between certain members of staff, the principal, vis-u-vis Mr Chauke was totally unsatisfactory, and unbecoming for persons charged with the education of learners. In terms of a letter by the GDE dated 6 February 1996:
“The meeting was held at the request of Thakgalang staff who wanted to express their dissatisfaction over the letter that I wrote to the principal about your reinstatement.
The consensus was that your presence at the school was undesirable. Threats of violence were expressed in no uncertain terms. It was also stated that your presence at the school will precipitate a disruption of the teaching/learning process.
I therefore advise you to reconsider a transfer to another school as suggested by the District _ Director.”
1 This letter was signed by the Circuit Manager.
.7 On 9 September 1999, the GDE had communicated a letter to Mr Chauke that read:
“ALLEGED ABSCONDMENT : YOURSELF”.
1 In terms of this letter, the GDE set out that it had intended terminating Mr Chauke’s services in terms of Section 14(1)(a) of the Act as a result of his alleged abscondment. Mr Chauke was afforded an opportunity to respond within fourteen days of receipt of the letter.
.8 In response thereto, Mr Chauke set out his feelings in a handwritten letter to the GDE. I will quote a few of the relevant issues set out by Mr Chauke:
“Your topic alleged abscondment and the content of your letter shows me clearly that you don’t know what you are doing. You are putting or shifting a blame to me that I have failed through my actions or conduct to secure a post.
[b] My place of employment as a teacher is Thakgalang Secondary School.
[c] Give me a job description which was given to me
[d] Since I have communicated with you through letters and my attorneys in 1996 you have never responded.
You and your subordinates have failed to handle this issue. You did not just fail, is just that you cannot handle it, it is to big for you.
Let me remind you. Your duty is to re-instate me to the same school. It is so simple, just write a letter to the school instruct them that I am coming back to my work. Use your authority. I need not to advice you but I am forced to help you. Write me a letter of instruction to me, tell me that I must go back to work, you may also tell me within 24 hours I will obey because this will be a lawful instruction.
Let me respond on the issue of transfer. I have been advice to consider a transfer of which I appreciate the advice. Is for me to decide whether to take a transfer or to go back to my school.
No one will force me to take transfer. If a person or any authority forces me, it will be an unlawful instruction and I will not carry unlawful instruction. According to law I have the right to say no to any unlawful instruction.
The only transfer that I will take is a lawful transfer and base on promotional post. I can take it within 24 hours.
You are hereby afforded the opportunity to respond within 14 days in writing.
N.B Do not delay for 6 years please!!!”
1 The above are extracted directly from Mr Chauke’s letter. The evidence that was tendered by Mr Chauke was substantially in compliance with what has been set out above and also the remainder of this letter.
.9 There is no doubt that the GDE was considering finding a alternative school for Mr Chauke. Mr Chauke was adamant that his place was at the Thakgalang Secondary School.
.10 The local newspapers were appraised of this particular matter, and it was reported exhaustively in the Pretoria News, as well as The Star newspapers. The gist of the articles suggested that whilst Mr Chauke did not work for five years, the GDE continued paying him.
.11 Mr Chauke insisted that he be reinstated at the Thakgalang Secondary School.
.1 In terms of Section 8 of the Act:
“The salary and other conditions of service of an educator may not be adversely affected by a transfer under this section without the consent of the writing of that educator, accept in accordance with the provisions of Chapter 5.”
.2 Chapter 5 deals with the general conditions of service of persons appointed to perform duties in respect of public examinations. Insofar as Mr Chauke being in excess is concerned, the provisions of Resolution 6 of 1998 were not complied with by the GDE. In terms of clause 6.3 to the annexure of the above resolution:
“An educator who has been declared in excess shall be so informed in writing by the provincial education department concerned.”
.3 Neither the facts before me, nor before the disciplinary tribunal, established that this particular issue was discussed with Mr Chauke.
In deciding whether there is fair reason for the imposition of a particular form of discipline selected by the employer, I must assess the seriousness of the misconduct in the context of the existing circumstances. These circumstances include, where appropriate, such matters as the sensitivity of the educational setting and ensure that a person that is clearly incapable of adequately fulfilling the duties of an educator both inside and outside the classroom is not returned to the classroom. Both the vulnerability of the learners and the need for public confidence in the education system demand such caution.
The Act as well as the regulations referred to herein above, call for some sort of consultation with the educator when the Education Department is contemplating a transfer. I am alive to the fact that the transfer contemplated in this particular matter was of a temporary nature in that the letter dated 10 November 1999 sets out:
“... while your matter is being attended to.”
Every person has a fundamental right to fair labour practices (Section 23(1)(a) of the Constitution of the Republic of South Africa). Inasmuch as in the present context, expression must be given to the prevailing employer/employee relationship, the educator as the employee, must be given the right not to be unfairly dismissed. However, the employer has the right to dismiss an employee for a fair reason, and in accordance with a fair procedure.
In its contemplation of the transfer, the GDE, while the matter was being attended to, ought to have before any decision was arrived at, albeit that this particular decision was to have been in a temporary capacity, have consulted the proposed transfer with the employee, i.e. Mr Chauke. The GDE should have allowed Mr Chauke the opportunity during the consultation to make representations about any matter on which they were consulting, in this particular instance the transfer; thereafter the GDE should have considered those representations, and if the GDE did not agree with them it should have given Mr Chauke its reasons. The unilateral imposition of a transfer flies in the face of the Constitutional principles, as well as the Act.
The primary formal obligations of an employer are geared in an attempt to reach consensus. However if consensus is then not reached, the employer can thereafter for operational reasons, transfer the particular educator. In trying to achieve a joint consensus seeking process, the attempts must not be frustrated by either of the consulting parties. If it can be shown that the educator deliberately delayed or hampered the consulting process, then in those circumstances it would be expedient to take the necessary decision with regard to the transfer insofar as the employer is concerned. However each case must be determined on its own particular facts.
When deciding whether or not to dismiss the employee, the employer must consider factors such as the employee’s circumstances. Mr J Thipe acting for the GDE submitted that I should not have a look at any circumstances except those that were present before the disciplinary hearing, simply because the arbitration did not constitute a de novo hearing. This is a narrow way of considering issues. One must have due consideration of the surrounding circumstances in order to arrive at a just and equitable decision. In the leading case of Country Fair Foods (Pty) Limited v the CCMA and Others, the Labour Appeal Court held that arbitrators should not interfere with the sanction of employers merely because the arbitrators do not like it. There must be a measure of deference to the sanction imposed by the employer subject to requirement that the sanction imposed by the employer must be fair. The importance for this is that the primary function is on the employer to decide upon the proper sanction.
See: Country Fair Foods (Pty) Limited v the CCMA and Others
Vol. 20 ILJ 1999 at page 1701.
.1 In Nampak Corrugated Wadeville v Khoza (1999) 20 ILJ 578 LAC it was stated that:
“The determination of an appropriate sanction is a matter which is largely within the discretion of the employer. However, this discretion must be exercised fairly. A Court should, therefore, not likely interfere with the sanction imposed by the employer unless the employer acted unfairly in imposing that sanction. The question is not whether the Court would have imposed a sanction imposed by the employer, but whether in the circumstances of the case the sanction was reasonable.”
.2 In my view, there is no reason why both in principle and logic, arbitrators in arbitrations such as the present matter who are called upon to consider the fairness of the sanction imposed by the employers should not be bound by the aforesaid principals. It is trite that insofar as a sanction is concerned, for a misconduct, reasonable people will readily differ from one case to another. However arbitrators should not be allowed to substitute their judgement and discretion for the judgement and discretion fairly exercised by employers. If this allowed, then the function of management may well be abdicated.
Where the sanction imposed is not fair in all of the circumstances, then the arbitrator must impose.
In the present matter, Mr Chauke was found guilty on insubordination. Insubordination is not the same as insolence. The Shorter Oxford English Dictionary (1973) refers to insubordinate as:
“not obedient to the orders of superiors”
and to insubordination as :
“resistance to or defiance of authority; disobedience”
On the other hand insolence is defined as :
“offensive contemptuousness of action or speech due to presumption”
and insolent is defined as :
“contemptuous of rightful authority; presumptuously contemptuous; impertinently insulting”
Insubordination can manifest itself in the refusal to obey a reasonable and lawful command or in challenge (or resistance) or defiance of the authority of the employer. It is of course required that the insubordination must be deliberate (wilful) and serious. The insubordination should be serious enough to justify or warrant dismissal. (See: Brassey et al, The New Labour Law at 432). It is important that it must be a refusal to obey a reasonable or lawful command. Mr Chauke argued vehemently that the command in the particular matter to report to the Laerskool Visserhoek was unlawful. When one has recourse to the regulations and the provisions of the Act referred to herein above, one cannot seriously take issue with this particular contention. In the present matter, the circumstances were such that the employer unilaterally, and without semblance of consultation, requested Mr Chauke to present himself to the Laerskool Visserhoek. The issue in respect of Mr Chauke’s reinstatement at the Thakgalang Secondary School had not been resolved. Neither the evidence at the disciplinary hearing, nor the evidence presented at the arbitration, showed with any degree of certainty that this matter was resolved. It is correct that the situation at the Thakgalang School as a result of personal indifference’s was explosive. However the matter ought to have been settled in a more constructive and conscientious fashion. This was not done. In the present matter, Mr Chauke is not without blame. The antagonistic tone used in his letter quoted herein above, was not conductive in settling the matter in an amicable fashion. For a large part extending over the six years when he was not employed, he received his salary for sitting at home. The Department was palpably embarrassed in newspaper articles in relation to this particular dispute. The Department did in fact place him in the District Office. However this proved to be a futile exercise after three or four months. In my view, Mr Chauke’s conduct cannot be interpreted in a fashion which had the effect of disregarding or making a mockery of the employer’s authority. I have already intimated that the command issued to Mr Chauke was not lawful. An employee can be insolent, without necessarily been insubordinate. There are definite traces of insolence in the present matter, however I am unable to find that there was insubordination on the evidence presented either at the disciplinary tribunal, or the evidence presented at the present arbitration.
I can find nothing unfair about the procedure that was adopted by the GDE in having disciplined Mr Chauke. However I am unable to agree with the tribunal that the reason for dismissing Mr Chauke is a fair one.
The present dispute extends over some six years. Unresolved disputes fester and spread infection and discontent. They cry out for resolution. Disputes in the field of labour relations are particularly sensitive. Work is an essential ingredient in the lives of all South Africans. Labour disputes deal with a wide variety of work related problems. They pertain to wages and benefits, working conditions, hours of work, job classification and seniority, as well as transfers. Many of these issues are emotional and volatile. If these disputes are not resolved quickly and finally they can lead to frustration, hostility and even violence. Both the members of the workforce and management have every right to expect that the differences will be, as they should be, settled expeditiously. Further the provision of services in our complex society can be seriously disrupted if these were not attended to in an expeditious fashion. Both parties must take responsibility in the present matter for not having resolved their dispute in a more expeditious and expedient fashion.
In the light of the above circumstances, and in my view, the dismissal of Mr Chauke was not for a fair reason.
The next issue that I have to deal with is the appropriate remedy in the light of the present circumstances. In applying my mind to the issue on hand, I will have to undo the unfairness that has been done. In the process, I should strive to bring about fairness. A school is a communication centre for a whole range of values and aspirations of a society. In large part it defines the values that transcend society through the educational medium. The school is an arena for the exchange of ideas and must, therefore, be premised upon principles of tolerance and impartiality so that all persons within the school environment feel equally free to participate. Both the GDE as well as the educator by their conduct, must be perceived to uphold the values, beliefs and knowledge sought to be transmitted by the school system. The conduct of Mr Chauke as evidence in the letter by the Circuit Director set out hereinbefore can be described as wanting. The manner in which the GDE dealt with Mr Chauke since the commencement of the dispute some six years ago is totally unsatisfactory. In these circumstances, I should make an order which I consider necessary to bring an end to the dispute between the parties. In exercising my discretion, I am guided by what is reasonably necessary and equitable in the circumstances of the present matter, with due regard to the interests not only of Mr Chauke but also of the Department and the persons attending Thakgalang Secondary School.
In arriving at my ultimate determination, I am also alive to the fact that I should not be making a contract for the parties. The purpose of the present arbitration is to achieve a final settlement of the dispute on hand. In exercising my discretion, I cannot adopt a myopic view. I take into consideration the broad spectrum of influences beyond the work situation in the present matter. A balance of interests is needed to restore or avoid future conflict. All of the above, means that I have to exercise a value judgement in the formulation of my final determination.
In all of the above circumstances, my finding is as follows:
.1 The dismissal of Mr Chauke by the Gauteng Department of Education was substantively unfair.
.2 The procedure adopted in the present matter was fair.
.3 Mr Chauke is reinstated in his capacity as an educator with the Gauteng Department of Education.
.4 The Gauteng Department of Education and Mr Chauke must consult within 14 days of the date of this award, in order to determine the school at which Mr Chauke will be required to perform his services in terms of his contract of employment with the Gauteng Department of Education.
.5 Mr Chauke does not have an automatic right to be reinstated at the Thakgalang Secondary School.
DATED at JOHANNESBURG on 13 JUNE 2000.
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES GAAR004070 GP
APPLICANT W CHAUKE
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR DISMISSAL
ARBITRATOR M JAJBHAY
DATE OF ARBITRATION
1 In all of the above circumstances, my finding is as follows:
1.1 The dismissal of Mr Chauke by the Gauteng Department of Education was substantively unfair.
1.2 The procedure adopted in the present matter was fair.
1.3 Mr Chauke is reinstated in his capacity as an educator with the Gauteng Department of Education.
1.4 The Gauteng Department of Education and Mr Chauke must consult within 14 days of the date of this award, in order to determine the school at which Mr Chauke will be required to perform his services in terms of his contract of employment with the Gauteng Department of Education.
1.5 Mr Chauke does not have an automatic right to be reinstated at the Thakgalang Secondary School.
DATE OF AWARD 13 JUNE 2000