Case Number: PSES 174-04/06 KZN
Applicant: L S MKHWANAZI
Respondent: DEPARTMENT OF EDUCATION KZN
Issue: Unfair Dismissal - Misconduct
Award Date: 8 November 2004
Arbitrator: S A MDLEDLE
IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT EMPANGENI
Case No. : PSES 174/04/06 KZN
In the matter between
L.S. MKHWANAZI Applicant
DEPARTMENT OF EDUCATION Respondent
Commissioner : S.A. Mdledle
On behalf of the Applicant : Advocate G.B. Buthelezi
On behalf of the Respondent : Mr S.T. Nxumalo
Date of arbitration : 2 November 2004
Date of issue of the award : 8 November 2004
Details of the Hearing and Representation
The arbitration hearing took place at the district office of the respondent at Empangeni. The applicant in this matter was represented by Advocate G.B. Buthelezi. The respondent was represented by Mr S.T. Nxumalo, the Labour Relations Officer.
Issues to be Decided
The issue in this matter is whether or not the applicant was unfairly dismissed.
Survey of Evidence and Argument
The respondent called a witness, Jabu Priscilla Dumisa, she testified that she was the Labour Relations Director. Her duties entailed handling dismissal disputes, conciliations, and arbitrations etc. on behalf of the respondent. She commenced her duties with the respondent in 1993. In 1998 she was in the Human Resources Labour Relations Section. She testified that during that time the Department of Education, the respondent embarked on a campaign, of investigation to rude out corruption in the department. All the posts of everybody in the department including the Chief Executive Officer (CEO) were frozen and every employee was requested to submit a fresh application. This process entailed everybody having to submit the certificate to prove that he or she had the necessary qualifications for the post that particular person was occupying. This process applied across the board from the CEO down to the person who was serving tea in the department. She said that the department unearthed a lot of fraud within the department. They discovered that a lot of certificates were fraudulent. Some people, occupying posts, were not even existing. Some people were existing but they were not rendering services in the department but were still paid. This project was called The Head Count project.
The representatives from the departments visited the schools to check the certificates and count the number of the employees in those institutions and take the original certificates. Once the certificates were received the department will then check the authenticity of those documents.
Those people who were found to have been fraudulent for having submitted fraudulent certificates were then subjected to investigation. Once the investigations was finalized, letters were then distributed to those people requesting their submissions as to why they should not be dismissed. She believed that by so doing they complied with schedule 8 of the code of good practiced dismissal. She believed that by so doing they gave those people a chance to present their own defences and therefore there was no need for formal enquires in the circumstances.
She confirmed that a letter was written to the applicant. That letter was part of the bundle which was submitted by the respondent. The letter in question was written by one Mr B.G. Sibiya. It appeared from the evidence that Mr Sibiya had long passed away. However Mrs Dumisa stated that she was the head in the department and therefore Mr Sibiya was serving under her. Therefore she knew what was happening in the department. She said she was the Assistant Director in the department and the project was under her directorate. She testified that the applicant was expected to respond to the letter and when she did not respond a letter of termination was written and addressed to her. That letter was also part of the bundle and it was dated 9 January 2000. In that same letter it was indicated that the pensions or benefits that would have been due to the applicant would be offset against the loss incurred by the department due to the fraudulent submission of the fake certificate. She said that the applicant submitted a fraudulent Matric Certificate. The letter that was calling for a response from the applicant was dated the 3rd of September 1999 and this letter starts by saying that” it has come to my attention
that you obtained your present employment with the department as an educator on the strength of a false qualifications certificate”. This letter continues to say that “attached hereto find copies of the following: -
The qualification certificate presented by you when applying for the position.
A letter from the issuing authority in which it denies that this certificate was issued to you or that you made requirements for the issue of such certificate by issuing authority concerned”.
She then testified that, when the applicant failed to respond to this letter she was Thereafter discharged it terms of Section 11 of the employments educators act No. 76 of 1998. Under cross examination she conceded that the applicant could have been first employed in 1981 and consequently she could have submitted
Another certificate which was also part of the bundled which was a Primary Teachers certificate (PTC). However she mentioned that, that was not the employment she was referring to. She said that when the positions were all frozen and People were asked to apply afresh that is when the applicant was marked to apply and it was in that period she submitted a false certificate and when it was discovered that the certificate was fraudulent she was thereafter dismissed. She argued that she referred to a certificate submitted when she was employed and the was certificate submitted in 1998 when all the educators and other members of staff of the departments were requested to re-submit their qualifications.
Therefore the employment in 1981 according to her was in irrelevant. It was put to her that the applicant only applied once for the position and that was in 1981 and that is when she was employed as an educator. She insisted that the applicant also applied when everybody else was applying due to the project called Head Count. She said if she did not re-apply she could not have been re-employed by the department.
It was put to her that the applicant would Say that she never received the letters, the letter calling for an explanation and
The letter of termination, She said that in all probabilities the applicant must have received both letters. In fact she pointed at a letter of acknowledgment which formed part of the bundled, This letter of acknowledgment was dated 21 October.
She therefore stated that this letter of acknowledgement should have the acknowledgement for the first letter written on the 3rd of September 1999.
That ended the case of the respondent.
The applicant, Lungile Sanelisiwe Mkhwanazi, also gave evidence. She testified that she was 56 years of age, leaving at kwaMondi at Eshowe. She testified that she was employed in 1981 with a Primary Teachers Certificate (PTC). She gave a brief history of the places where she worked before she ended at this school where she was eventually dismissed.
She consider that in 1995 she submitted a senior certificate which was fraudulent. She justified this by stating that she heard on the radio that all those who did not have matric would be dismissed by the department. She then acquired this certificate by fraudulent means and submitted it.
However, she stated that she did not obtained, employment through this certificate. She stated that she submitted a Primary Teachers Certificate (PTC) and she was employed because of that certificate. She confirmed that she received the letter dated 3rd of September 1999. She said she received this letter only on the 26th of January 2000, She said she wanted to respond to this letter. She was advised to write a letter. She fell sick and before she could write this letter she received the letter of termination on the 15th of February 2000. When she was requested to submit a copy she said she did not have a copy of the letter that she wrote.
She then gave a detailed account of the steps she took after she was dismissed. I must say that the applicant was very apologetic. She said she was seeking re-instatement. She realized that she made a mistake by submitting the matric certificate which was fraudulent. Under cross examination she stated that after submitting the certificate in 1995 she kept on phoning trying to check if it had been accepted and 1996 she was told that the certificate was with the finding committee and that it have been discovered that the certificate was actually fraudulent and she panicked and realize that she was in trouble.
When Head Count began in 1997 she did not submit the matric certificate because she knew at that stage that the certificate was fraudulent. But some where in 1998 a certain Mrs Ndaba came and requested the original of matric certificate that she had submitted and then she gave that certificate to Mrs Ndaba. She never received that certificate back since it was taken by Mrs Ndaba. She said she did not received any benefits in terms of salary or increament as a result of submission of the matric certificate. She also testified that she did not receive her pensions she was told that her pensions would be forfeited to compensate the department for the loss suffered as a result of her submitting a fraudulent certificate.
This concluded the evidence that was given by the both parties.
Analysis of Evidence and Argument
In this matter it was common cause that the applicant submitted a fraudulent certificate in 1995. Despite what was the argument by applicant’s representative capitalizing on the letter dated the 3rd of September 1999 which stated that she submitted a fraudulent certificate when she was employed, the applicant was very well aware that she was dismissed because of the matric certificate that she submitted. I must also say that though the applicant’s representative argued in his opening statement and closing arguments that there was no proof that the applicant received the letter inviting her submissions prior to her dismissal she confirmed having received the letter and the letter of termination of employment.
It is also common cause as it was admitted by the applicant and which is also the reason why she submitted the matric certificate that the educators who did not have matric certificate were not going to be employed by the department. It is also common cause that the applicant was originally employed in 1981 and I accept that as it was a country wide project by the department of education of rooting out corruption that educators and other staff members within the department were required to submit their original certificates and the applicant was no exception.
It cannot therefore be rejected as untrue the fact that when the department referred to her employment they were referring to her employment after the Head Count in 1998. I don’t see any reason why should reject this because if the department regarded this as being re-employment as that explains the letter dated the 3rd of September 1999 that they refer to the employment in 1999 as de-employment and therefore the reference to the employment only refers to the employment in 1998. I see no reason why should reject this explanation given by the respondent.
Section 118 of the Labour Relations Act 65 of 1996, as amended ( “The Act”) requires the dismissal of an employee to be both substantively and procedurally fair. The substantively fairness refers to the reason that is advanced by the respondent in dismissing an employee while the procedural fairness refers to the procedure that is employed in effecting dismissal. The employer is required to prove that on a balance of probabilities that the dismissal was fair and particular that applicant committed the act of misconduct for which he or she is charged. The employer is not required to prove with absolute certainty that the employee is guilty of the alleged acts of misconduct. The question in this matter is not whether the applicant did commit an act of misconduct.
The applicant herself admit that she did wrong by submitting a fraudulent certificate but the argument that is raised on her behalf is that she was not dismissed for that reason. I reject that argument. The applicant in her evidence was very clear she admitted the wrongdoing and apologies for it. I don’t think it would be fair and just for me to rely on a technicality of saying that she was employed in 1981 and therefore whatever happened in 1998 was not an employment.
In the eyes of the respondent what happened in 1998 was an employment of all the employees employed by the department of education and therefore the referral to the employment in 1998 was the employment in terms of what the respondent understood. Therefore I find that in this matter the applicant did commit an act of misconduct which justified a dismissal. I wish to refer at this moment to the case of Hoch vs Mustac Electronics (Pty) Ltd (1999) 12BLLR 1287 (LC).
In this matter I am therefore satisfied that the applicant’s dismissal was for a fair reason and fortunately in this matter the applicant is also aware of that. With regard procedural offence it is common that there was no hearing. The applicant was never advised of her right representation right to prepare for the hearing, she was simple handed a letter calling for her submissions otherwise she would be dismissed. The question then is whether this result in the dismissal being procedurally unfair. Item 3(4) of schedule 8 of the code of good practice dismissal provides that a hearing may be dispensed with an exceptional circumstances. In those circumstances the employer is required to prove that there were exception circumstances. In this matter the respondent as per evidence of Mrs Dumisa suggested that the respondent complied with the recommendations of item 4 of the code of good practice: dismissal. In this matter I cannot find any exceptional circumstances. In the circumstances I believe the respondent should have held a disciplinary enquiry in this matter before effecting the dismissal of the applicant. But in this circumstances no enquiry was held and no explanation was given as to why the enquiry was not held. It is therefore my finding that the respondent failed to comply with the requirement of procedural fairness by not holding an enquiry and allowing the applicant representation. I must say that in that enquiry though the applicant might in any event have been found guilt, the applicant is given a chance to plead mitigating circumstances. As I stated earlier the respondent bears the onus to prove on the balance of probabilities that the dismissal was fair both procedurally and substantively and in this matter I find that the respondent failed to prove that the applicant’s dismissal was procedurally fair.
The remedy that is available the applicant were dismissal has been found unfair only because the respondent failed to following the correct procedure in effecting the dismissal.
In terms of Section 194 of the act compensation that is awarded should be just unfair. In the circumstances I find that an amount of compensation equivalent to the applicant’s four months is fair and just in the circumstance. At the date of dismissal the applicant was earning an amount of R3428,25. My award is therefore as follows: -
1. I find that the applicant’s dismissal was substantively fair but procedurally unfair.
2. The respondent is ordered to pay to the applicant compensation to the sum of R13,713, 00 being the equivalence of the applicant’s four months remuneration calculated as follows:-
R3428, 25 x 4. = R13713,00.
3. The respondent is ordered to pay the aforesaid sum of R13713,00 to the applicant on or before the Friday 17th of December 2004.
4. There shall be no order as to costs.
DATED AT DURBAN ON THIS 8TH DAY OF NOVEMBER 2004.
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 174-04/06 KZN
APPLICANT L S MKHWANAZI
RESPONDENT DEPARTMENT OF EDUCATION KZN
NATURE UNFAIR DISMISSAL
ARBITRATOR S A MDLEDLE
DATE OF ARBITRATION 2 NOVEMBER 2004
APPLICANT ADV G B BUTHELEZI
RESPONDENT MR S T NXUMALO
1 I find that the applicant’s dismissal was substantively fair but procedurally unfair.
2 The respondent is ordered to pay to the applicant compensation to the sum of R13,713, 00 being the equivalence of the applicant’s four months remuneration calculated as follows:- R3428, 25 x 4. = R13713,00.
3 The respondent is ordered to pay the aforesaid sum of R13713,00 to the applicant on or before the Friday 17th of December 2004.
4 There shall be no order as to costs.
DATE OF AWARD 8 NOVEMBER 2004