Case Number: PSES 342-04/05 FS
Province: Free State
Applicant: SIMELANE (SASAWU)
Respondent: DEPARTMENT OF EDUCATION FS
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 2 December 2004
Arbitrator: S MAKUME
ELRC Panelist: Saki Makume
Case No:PSES 342-04/05FS
Date of Award:2 December 2004
In the matter between
SASAWU obo Simelane Applicant
Union/Applicant’s representative SASAWU obo Simelane
Tel. No 082 6542017
Fax No 011 339 3406
Respondent’s Representative DOE-FS : A. Rudman
Tel No 051 404 4293
Fax No 051 404 4388
DETAILS OF HEARING AND REPRESENTATION
The matter was heard on 16 November 2004 at DOE-FS offices in Welkom. Mr. M. Lesufi, SASAWA official, represented the applicant while Ms A. Rudman represented the respondent.
Two bundles of documents were presented. The bundle presented by the applicant was chaotic to say the least. During the presentation the applicant's representative requested that the matter be postponed citing the fact that there was poor communication, hence poor preparation. I ruled against this request taking into consideration the objection raised by the respondent and the need for speedy resolution of disputes.
ISSUE TO BE DECIDED
I had to decide whether the imposition of a final written and a fine (one month salary) was procedurally and substantively fair or not.
SURVEY OF EVIDENCE AND ARGUMENTS.
Evidence of Respondent; C.J Van der Merve.
The witness testified that she was a principal personnel officer at Lejwe-Leputswa district. Her job involved promotions, appointments, terminations and transfers.
She testified that there are strict rules that they follow as depicted in the respondent's bundle 20, on chapter 3, appointments, promotions, transfers of Employment of Educators Act 76 of 1998. She further averred on how permanent and temporary staff are appointed
She averred that the principal at the school has to provide the advertisement where it is a one-man school, the school Management Developer (SMD) has to do it.
She testified that where there is no vacancy list, they have to look for excess teachers or apply for a temporary position, which must be approved by the District Director. During October to December 2001, there were no excess teachers, she averred by reading Resolution No5 of 1998 from the respondent's bundle 22, on transfer of serving educators in terms of operational requirements.
She averred that she was not involved in the appointments of Mocholosi, but was told that there were problems. She further conceded that she was not an expect on procedures.
Evidence on behalf of the respondent's witness: K.T Motumi.
The witness testified that he was the Chief Educator Specialist that he used to be the applicant's supervisor.
He testified that proper notice was served on the applicant as per "Notice of Disciplinary Meeting", page 14 of "Employer's bundle" and that there was a written finding from page 17 of the same bundle of documents.
The witness averred that Mocholosi's letter of complaint was brought to his attention and he took the matter over as he realised that proper procedure was not followed, because the position was not advertised and even the School Governing Body (SGB) was not involved when Mocholosi was appointed into Kopamotse's position. Prior approval is mandatory for that the educator to be paid.
He testified that the transfer of Kopamotse was not procedural, as no documents were submitted. He averred that there were three people in two positions, that is why the applicant was charged.
He further testified that there were no leave forms submitted to Monaune when she went on 4 months maternity leave, and that this was brought to their attention through a whistle blowing to the toll free number.
He averred that a group of SGB members from Repholositswe came to the district office to demand the appointment of educators, because learners were left without educators. He was of the view that the principal and SMD were responsible.
He averred that the applicant failed to visit schools as required, that the applicant could not provide proof that he did, indeed, visit the school, it was, thereupon, put to him that the applicant did visit the schools as per copies of book entries of 14/01/2002, 01/02/2002, and 27/05/2002.
Evidence on behalf of the Respondent’s: B.P Mokaila
The witness testified that she was the Labour Relations Officer in DOE-FS that Section 7 (2) of the employment of Educators Act was silent on the relative rank of the hearing official.
Evidence of the Applicant's Witness: M.P Simelane
The witness testified that he was the SMD in DOE-FS and was appointed on 1 January 1990 and was at salary level 11.
He testified that after receipt of notice he requested information to prepare for charges preferred against him. On the day of the hearing a document, purportedly an investigation report was given to him to study. He further averred that an officer of the same rank as himself, Mothebe, investigated, that he was of the view that Mothebe was prejudiced.
He testified that he "was above board" that the SGB was involved in the extension of Mocholosi's services, the problem was from the HR department who could only access information on Mocholosi's late, that the assumption of duty was signed on the right day, that he wanted to extend her services. He blamed the HR for the delay and the merger of the Welkom and Odendaalrus offices.
The witness testified that the district HR office was chaotic. He quoted an admission by HR that no proper safekeeping of documents was in place. He cited the example of Gexa. Who was not properly transferred. He averred that Kopamotse was properly transferred, but HR was casual about their job.
He testified that he failed to submit leave forms of Monaune as he was on a project to reduce failing schools. He testified that when Monaune's issue was brought to his attention he wrote a report and made recommendation that were not heeded or responded to by his C.E.S. He testified that he was not aware of Monaune's substitute.
He averred that he pleaded guilty to change 2 and 4 because he wanted to show reverse, but there were strong mitigating factors, particularly the part played by HR at the district office. He further testified that indiscretions had occurred in the Monaune's matter, that he was removed from his normal duties to lead a project on failing schools.
Evidence on behalf of the applicant.: S Dlamini
The witness testified that he was a SMD for Lejwe-Leputswa. He was a member of the task team changed with the responsibility of working with failing schools.
He averred that the applicant was the team leader of the project. He averred that during this time functional schools suffered as they were neglected. They worked on the project from Tuesday to Fridays and had to do their office work on Mondays.
He averred that the applicant’s functional schools had to be attended to by Mr. Havenga.
ANALYSIS OF EVIDENCE AND ARGUMENTS
I had to determine whether the imposition of a final written warning and a fine (one month salary) was procedurally and or substantively fair or not.
There was a notice that invited the applicant to an enquiry, an enquiry was held and a finding communicated. Through the enquiry the applicant was given an opportunity to state his case. He was represented and had a right to call own witnesses and cross-examine the respondent's witnesses.
The applicant expressed dissatisfaction with the appointment of the person of same rank to investigate the matter. In my view, the investigation only determines whether grounds to lay formal disciplinary charges against the employee exist or not, findings in this regard still have to be tested in a formal hearing. The position of chairperson gives certain powers to the person. It is preferable for the chairperson to be more senior than the accused employee, but it is not mandatory.
In the notice the charges were quite clearly defined and set out. The applicant could have prepared for his defense adequately. It is not binding that the investigation report is made available to the applicant, nor is the failure to do so unfair.
I accordingly find the dismissal of the applicant was procedurally fair.
There were six charges preferred against the applicant. He was found guilty on five, and not guilty on one. In all charges, poor performance was alleged, yet the note on imposing sanction referred to ‘charge of misconduct’, and imposed final written warning and a fine of one month’s salary. I believe that it is important to use terminology in such a manner that it does not confuse. Usually poor performance is related to incapacity, and has a particular manner in which it is handled, as contemplated in Schedule 1 Item 2 of the Employment of Educators Act.
On charge 1, approval was granted after the person was in the position, not before as the policy demands. The applicant contented that he did get approval, that the HR department’s ‘chaotic’ state caused the delay. To me it is very worrying that it took Mocholosi’s complaint to address the matter.
The applicant pleaded guilty on charges 2 and 4. He relied on mitigating circumstances for a more lenient sanction. Evidence was led to the effect that Kopamotse’s transfer was unprocedural and that Monaune’s leave application forms were never submitted until demanded after the toll free call. The applicant relied on mitigating circumstances, that the district HR was chaotic, and that he was taken off his work to lead a project on failing schools.
Evidence was led to the effect that posts were not timeously filled at Repholositswe Secondary School. The applicant contented that meetings were held to discuss this issues but intransigence on the employer’s part was the cause.
On failure to visit schools, testimony was led to the effect that the schools were, indeed, visited by giving logbook copies. It is worrying that the witness (CES) wanted this evidence, and it was not available until arbitration. In my view, the applicant could not have been charged had he submitted this information when it was needed.
There is no doubt in my mind that the guilty finding was appropriate. I am aware of the fact that the courts have repeatedly ruled that arbitrators should not interfere with the hearing official’s decision unless it is unreasonable. I believe that a final warning for some of the charges would have been fair and reasonable, considering the seniority of the applicant. The imposition of a fine is unreasonable, considering the legislator’s reluctance by suggesting that this sanction may be suspended.
The Basic Conditions of Employment Act of 1998 Section 34, prohibits employers from imposing fines on their employees, and from making unauthorized deductions from their wages, unless the employee agreed to the deduction in writing and/or the deduction is required or permitted in terms of a law, collective agreement, court order or arbitration award. In Small and Others v Noella Creations (1986) 7 IJl 614 (IC), it was found that a provision in the contract of employment that results in employees forfeiting part of their remuneration for whatever reason, was unlawful and unenforceable. All this is conflict with the Employment of Educator’s Act, which allows fines. Section 5 of the BCEA states that the BCEA or anything done under it takes precedence over any agreement, whether entered into before or after the commencement of the BCEA.
The imposition of the fine is, therefore, substantively unfair.
1. The respondent must pay the amount fined the applicant in full by 15 December 2004.
2. I make no order as to costs.
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 342-04/05 FS
APPLICANT SIMELANE (SASAWU)
RESPONDENT DEPARTMENT OF EDUCATION FS
NATURE CONDITIONS OF EMPLOYMENT
ARBITRATOR S MAKUME
DATE OF ARBITRATION 16 NOVEMBER 2004
APPLICANT MR M LESUFI (SASAWU)
RESPONDENT MS A RUDMAN
1 The respondent must pay the amount fined the applicant in full by 15 December 2004.
2 I make no order as to costs.
DATE OF AWARD 2 DECEMBER 2004