Case Number: PSES 929-02/03
Applicant: K F C FRANSCHE
Respondent: DEPARTMENT OF EDUCATION GP
Issue: Unfair Dismissal - Misconduct
Award Date: 28 March 2005
Arbitrator: W M RALEFETA
Commissioner: Willie M Ralefeta
Case No.: PSES-929-02/03GP
Date of Award: 28th March 2005
In the ARBITRATION between:
Karen Frances Christine Fransche (Union / Applicant)
Department of Education (Respondent)
Union /Applicant’s representative:
Imraan Haffeggee (Attorney)
Union/Applicant’s address: Office 7, 2nd Floor, Greenway Centre,
108 Green Way, Greenside,
Cel: (011) 646-7406
Telefax: (011) 646-6014
Ms Pinkie Tsubele
Respondent’s address: 111 Commissioner Street
Fax: (011) 355-0466
Details of the hearing and representation
This is an arbitration in terms of the provisions of Section 191 (1) (a) of the LRA 66 of 1995 (“the Act”) read with Section 18 (3) (i) of the Employment of Educators Act 76 of 1998. The employee party, Ms KFC Fransche (hereinafter referred to as the applicant), was represented by Mr Imraan Haffeggee (an Attorney). The employer party, the Department of Education (hereinafter referred to as the employer), was represented by Ms Pinkie Tsubele, the labour relations representative during the proceedings. The arbitration hearing was initially scheduled for 18th November 2004 but the parties requested that it be extended by two more days on 2nd February 2005 and 17th March 2005.
On 18th November 2004, both parties reverted to conciliation in the absence of the commissioner but there was not settlement and the matter was then postponed to a later date. The matter was scheduled again on 2nd February 2005. The parties once again requested the commissioner to allow them to revert to conciliation before proceeding with arbitration. When they could not reach a settlement, they requested the arbitrator to proceed with the arbitration hearing. The employer’s representative raised a point in limine that the applicant was not supposed to be represented by an attorney as the matter was not legally complex. But considering the comparative ability of the applicant as an educator without any labour law background, the commissioner made a ruling that the legal representation be allowed in terms of Section 140 (1) (iv) of the LRA.
Issues in dispute
The commissioner must determine whether the dismissal of the applicant was substantively fair or not.
Submission of evidence and arguments
Opening statement by the employer’s representative-Ms Pinkie Tsubele
Ms Pinkie Tsubele made the following opening statement:
She will make submissions and call witnesses to prove that the dismissal of the applicant was substantively fair
She will also prove that the applicant was their employee and was appointed as an educator at Riverlea Secondary School
The applicant alleged that two learners at her school stole her hand bag containing her car keys and house keys which were lying on the table in her class she was teaching
The applicant further alleged that two days later her husband was hijacked inside their premises and the car was stolen;
Because of these two incidents the applicant felt that her life was threatened and would not go back to teach at the same school;
The applicant stayed away from work for some few months under the pretext that she was suffering from stress, but later alleged that she had applied for a transfer to Park Town Girls High School which was also within the realm of the department of education
Although the employer supported her transfer, she went and started working at another school, Park Town Girls High before her transfer could be authorized;
The transfer issue was handled separately from the labour relations issues and that would take some time to finalize due to volume of work and the great number of cases to be handled by each directorate;
To show their support for the applicant, the employer called a special meeting on 27th July 2000 to alleviate her fears and make her feel safe;
The resolutions of the meeting were that the principal of the school would provide her with the new lockable cupboard and install a new lock on her classroom door;
The resolutions of the meeting further stated clearly that the applicant had to initiate a disciplinary enquiry against the two learners by 7th August 2000
Police had already been called to take the statement and attend to the crime at the time of the meeting;
The applicant was instructed to report for duty the following day on 28th July 2000 but she did not come back;
On 9th September 2000 she started working at Park Town Girls High School without authorized transfer;
On 12th September 2000, the Gauteng Department of Education District C4’s official, Ms Sakiena Beg, issued out a letter informing the applicant to report for duty as the psychologist denied having booked her off sick for the periods 1/8/2000- 7/8/2000 and 7/8/2003 to 1/82003. The letter clearly stated that failure to return to work would result in a disciplinary action. The applicant never responded; Annexure B page 62
Later the applicant was summoned to the disciplinary hearing and dismissed for staying away from work without permission from 13/9/2000 to 30 March 2001;
The applicant made an appeal against the dismissal, but the dismissal was upheld.
Opening statement by the applicant’s representatative-Imraan Haffeegee
Mr Imraan Haffeggee made the following opening statement:
Their submissions would not challenge the procedural fairness of the applicant’s dismissal as the facts were clear and simple;
The employee’s bag was stolen and the following day her husband’s car was hijacked;
The employee took leave of three months and also applied for a transfer to Park Town Girls High School;
She started working at Park Town Girls High School in September 2000 under the impression that her transfer applicant was being processed and would be confirmed;
When the confirmation of her transfer did not materialize, she lodged a grievance of non confirmation of transfer and non payment of her salary;
Instead she was charged with abscondment and absence from duty without permission (see page 39 of Bundle A);
They would argue that there was a valid reason for her not to report for duty when she was expected to do so;
They would further make submissions to prove that the dismissal of the applicant was substantively unfair.
First witness of the respondent-Mr Pule Mashiloane
Mr Pule Mashiloane testified under oath as follows:
He remembered the applicant as he presided over her disciplinary enquiry in 2002 (see page 22 of Bundle B);
There were two criminal incidents that occurred to the applicant; the first one was that her handbag was stolen lying on the table in her classroom. The second incident was that the following day her husband’s car was hijacked inside their premises;
She felt so traumatized by the two incidents that she did not go back to teach at Riverlea Secondary School;
In the interim she decided to apply for a transfer to Park Town Girls High School;
A meeting was held buy the district officials to attend to her concerns and alleviate her fears where the principal and the applicant were present;
The resolution of the meeting held on 27th July 2000, to which she agreed were that the principal would immediately provide a new lockable cupboard for her and the door of her classroom would be fitted with a new lock;
Further resolution was that she would initiate a disciplinary enquiry against the learners that she suspected to have stolen her hand bag and hijacked her husband’s car;
Further resolution was that the matter would be left in the hands of the police as they had already taken the statement
The applicant further agreed to the resolution that she would immediately resume duties the following, but she never came back to school;
The applicant was absent from work from 13th September 2000 to 30 March 2001 despite the resolutions of the meeting she agreed to;
The applicant decided to resume duties at Park Town Girls High School while she had applied for a transfer;
After considering several warnings which were given to the applicant but ignored, and the fact that she transgressed a reasonable rule in Section 18(i)(f) of the Educators’ Act, he decided to dismiss her;
Further, the applicant had transgressed item 5 of the disciplinary code which resulted in a misconduct for absenting herself from work without permission from 13th September 2000 to 30th March 2001.
Under cross-examination, the witness testified that he took his decision to dismiss the applicant based on the evidence that was before him. Further, he testified that he dismissed the applicant for staying away from work without permission from 13th September 2000 to 30th March 2001 which was a period of seven months in total.
On 27th July 2000, she ignored the district director’s instruction given to her in a meeting to return to work at Riverlea Secondary School.
Second witness of the respondent-Mr Johannes Le Roux
Mr Johannes Le Roux testified under oath as follows:
Mr Le Roux has been a principal of Riverlea Secondary School from 1996 to 2005;
The problem all started in June 2000 when one of the school boys allegedly stole the applicant’s hand bag from the classroom table while she was outside;
When the applicant was informed by one of the learners that her bag had been stolen she ran after the boy to retrieve her bag but without any avail;
After a while he called the police to look for the boys outside the school yard but nothing was found;
The suspect did not attend school at Riverlea Secondary School;
The applicant told the police who she suspected;
Inside the hand bag was her cellphone, car keys, and house keys;
The applicant’s husband came to fetch her from school;
They were nearing the end of the term and the applicant kept coming to school for the whole week after the incident;
The applicant appeared traumatized by the incidents;
At the beginning of the new term, he phoned the applicant to find out if she was still coming back to Riverlea Secondary School, but she indicated that she had applied for a transfer;
The applicant never informed him that he was applying for a transfer, he was informed when the applicant told him that she had been taken at Park Town Girls High School;
He later received a fax from the head of department acknowledging receipt of her transfer application;
The applicant did not consult him about the application of her transfer as required by the organizational policy (see page 39);
The applicant sent him the sick note from a psychologist and the leave form with one of her friends (see pages 39-40 of Bundle B);
He had asked for the leave form as she was not coming to school because she said she was suffering from depression
It became very difficult for him to recommend the applicant’s leave as it was unusual for a psychologist to book someone off sick (see page 43 of Bundle B;
The district office did not authorize the sick leave recommended by the psychologist but instead instructed the applicant to report for duty on 13th September 2000.
She did not report for duty but still stayed away;
He received a letter from the MEC that they would assist her to gain a transfer;
The transfer procedure was always that the recipient school would show willingness to accept the applicant and the releasing school would also show willingness to release the teacher. The relevant documents would then be exchanged between the principals with the blessing of the head of the department;
This procedure was not followed by the applicant;
The applicant never submitted the application forms for a transfer, so he was of the view that the criminal incidents caused the applicant to leave the school at Riverlea;
Another factor which could have prompted the applicant to leave could have been the attractive position offered in the governing body at Park Town High School;
Unhappiness and lack of safety were her reasons to leave the school but not sickness;
She worked under the same conditions where crime was the order of the day in Riverlea in the past but never thought of leaving the school;
According to him the applicant absented herself without permission and that is a misconduct;
The applicant and him reported the matter to the governing body as they are the ones who must exercise discipline of the learners;
The governing body must make recommendations to the department of education if a learner has to be disciplined
But before the discipline of a learner against a teacher can be executed, the teacher must initiate the disciplinary enquiry by indicating her intentions to the principal.
The Applicant did not initiate the disciplinary enquiry, as a result, the learner who stole her bag could not be disciplined accordingly;
The school waited for the outcome from the police as they were attending to the criminal case;
The employer did everything in its power to assist the applicant;
Ms Sakiena Beg from the district office called a meeting on 27th July 2000 where the applicant was present with the aim of addressing her concerns and fears at school in Riverlea Secondary School;
As part of the resolution of the meeting, the principal was instructed to provide her with a special new lockable cupboard, fix the door lock of the classroom door to make the place safe for her;
The applicant was instructed to report for duty the following day on 28th July 2000, but she did not return;
He went to deliver a letter to remind her to return but she ignored it (see page 46;
When the applicant did not return to school, her learners in grades 11 and 12 were without a teacher;
They school had to use the governing body funds to replace the applicant with a private teacher through head hunting;
They employed Grace Mahlaku to replace the applicant to teach the grade 11 and 12 learners;
The grade 11 learners were agitated for coming to school without a teacher.
Under cross-examination the witness testified that he started teaching in 1965 and did his job to the best of his ability. He clarified in his testimony that the charges against the applicant were about the instruction issued to the applicant on 13th September 2000. The witness further explained in his testimony that he was not involved in the formulation of the charges on page 22 of Bundle B. He indicated in his testimony that he did not recall the applicant submitting an application for a transfer to him. Further what he could recall was the applicant informing him that she would be assisted by her sister in applying for a transfer. Further the witness testified that in July 2000 the applicant indicated to him that the department had sent her a letter acknowledging her transfer application when he wanted to know whether she would be coming back or not (see page 22 of Bundle A).
The witness further testified that that letter also instructed the applicant to report for work at Riverlea with immediate effect on 20th July 2000. The witness further testified that he received a letter dated 19th September 2000 from Parktown High School for Girls to release the applicant as she was being taken into a substantive post with immediate effect. Further the witness never had an opportunity to inform the applicant that a new cupboard had been provided for her and that a new lock had been fitted to her classroom door. The applicant had never expressed her fears to him and he only knew about them when they had a meeting with Ms Sakiena Beg from the district office. He further denied knowing that the applicant’s fears were the boys who stole her bag and those who hijacked her husband’s car after her bag got lost.
The witness further explained in her testimony that for the school to take a disciplinary action against the alleged thieves, Harry Modise and Phomolo, the applicant as an educator had to initiate the action through the principal, but she did not do that. Further the witness admitted that they lived with petty crime at Riverlea Secondary School and the applicant was also used to it as a common phenomena.
The applicant as the sole witness-Mrs KFC Fransche
Mrs Fransche testified under oath as follows:
She has been a teacher in the department of education since 1989.
On 6th June 2000 her handbag was stolen by two boys from her classroom, Harry Modise and Phomolo;
She managed to run after the boys assisted by Ms Isaacson, and Phomolo was apprehended while Harry Modise climbed the school fence and escaped into the location;
She reported the matter to both the police and the principal;
Even though she has an electric fence and remote controlled gate, two days later, her husband was hijacked inside their premises by two boys;
She wrote a letter to the detectives and another to the station commander about the two incidents but without getting a satisfactory answer;
She wrote a letter undated requesting the principal and the SGB to release her because her transfer was not getting finalized (see page 12 of Bundle A);
The response of the letter about transfer from the principal at the instruction of the District Education Co-ordinator was to inform the applicant report to Riverlea with immediate effect;
The letter dated 29th June 2000 from the Gauteng MEC for Education, Mr Ignatius Jacobs indicated that the applicant’s transfer was being finalized by the head of department Mr Mallele Petje (see page 22 of Bundle A);
She started teaching at Parktown Girls High School on 1st September 2000;
On 13th September 2000 she was already teaching at Parktown Girls High School
The letter dated 23rd April 2001 was issued to her by the Gauteng Department of Education directorate informing the her about their intention to proceed with the disciplinary enquiry against her in terms of Section 14(1)(a) of the Educators’ Act, (Act 76 of 1998);
On 12th September 2000 she was teaching at Parktown High School when she received the letter to report at Riverlea on 13th September 2000;
She could not follow the employer’s instructions to report at Riverlea because it was not fair in that the danger of being attacked by the two boys existed;
Phomolo who stole her bag was still in her class;
Her family was still in danger as long as Phomolo was in class;
The principal did not reassure her that he would expel Phomolo;
It was only when her husband enquired about her salary when the employer decided to take action against her;
On 27th February 2000, her legal representative wrote a letter to the employer indicating that it was unjustified to take a disciplinary action against their client for absence without leave as she was working at Parktown Girls High School;
The employer alleged that by refusing to report for duty on 13th September 2000 to 30th March 2001, she failed to carry out reasonable instructions;
She could not go back to Riverlea as she was already well established at Parktown Girls High School
She was advised to look for a school where she could be transferred to, she found Parktown Girls High School and she could not return to Riverlea Secondary School;
She started at Parktown Girls High School since 1st September 2000 and did not receive a salary for two years.
Under cross-examination, the witness argued that Phomolo and Harry stole her hand bag. Further, she argued that the same boys who stole her bag were the same boys who hijacked her husband’s car two days later. She further argued that the police let her down by failing to apprehend the two boys whom she had caught red handed carrying her bag. She further blamed the Department of Education for not expelling the boys from the school.
She testified that she was attacked by the Gauteng Department of Education because after experiencing such traumatic incidents, they went ahead and dismissed her for abscondment. She further testified that the police did not assist her as they also colluded with the hijackers. She further testified that she did not have money to pay for the lawyer but she was eventually forced to do so. She further argued that the DOE left her alone to arrange for her transfer and later dismissed her.
Further, she argued in her testimony that the hijackers used the remote control to gain access into her yard. She further argued that the hijackers could not have jumped the fence as it was electrified. Though she did not see the hijackers, she argued that Phomolo might be one of them as he did not attend school that day.
She further explained in her testimony that the incident of hijacking was reported at a different police station from the one she reported her stolen hand bag. She further admitted that she had made a mistake that the car was hijacked the following day as it was hijacked two days later. She further explained in her testimony that because Phomolo was not transferred to another school, she decided to transfer herself to another school. The witness further explained that though she did not return to Riverlea Secondary School, she kept contact with the other teachers. She further argued that she never initiated a disciplinary action against the two boys as she felt it was obvious that the principal would take his own initiative discipline them.
The witness further testified that she started working at Parktown Girls High School because the letter from the MEC had created an impression to her that the transfer was being finalized. She admitted that she started working at Parktown Girls High School because she feared for her own safety at Riverlea Secondary School even though her transfer was not yet approved.
She further admitted that she chose to go and work at Parktown Girls High School rather than sitting at home and wait for a transfer. She further admitted that at the time her salary was stopped she was working at Parktown Girls High School.
She further argued that she could not work at Rivelea because the boys were not apprehended. The witness admitted that on 13th September 2000 she was already working at Parktown Girls High School as she started on 1st September 2000. She further admitted that on 12th September 2000 she was given final warning to return to Riverlea but she defied it.
She further argued that she did not return to Rivelea due to defiance but due to defense. She further argued that she could have relocated to Cape Town if houses were not expensive there because after the traumatic incidents she went to compare prices with her husband.
The witness further testified that Ms Sakiena Beg of the district office was willing to assist with her transfer. She further argued that she was given an impression by the employer that Parktown Girls High School was prepared to accept her and Riverlea was willing to release her.
She admitted that it would be impossible for her to be in two permanent or substantive posts at the same time. She further admitted that she failed to follow the instructions by refusing to return to Riverlea on 12th September 2000 because she felt it was unreasonable.
She further admitted that the principal was the only person allowed to authorize her leave but on 13th September 2000 to 30th March 2001, her leave was not authorized by the principal. She further admitted that she did not apply for leave at that time.
Analysis of evidence and arguments
In terms of Schedule 8 (7) of the LRA regarding guidelines in cases of dismissal for misconduct-Any person who is determining whether a dismissal for misconduct is unfair should consider-
(a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
(b) if a rule or standard contravened was valid, reasonable, known and consistently applied to every body within the organization.
After having taken the submissions and the evidence of both parties into account, I find the dismissal of the applicant to be substantively fair and in accordance with the guidelines provided by Schedule 8 of the LRA above. The following are my reasons for determining the dismissal of the applicant to be substantively fair:
The applicant does not deny that she received a letter instructing her to report for duty at Riverlea Secondary School within 24 hours (see letter dated the 12th September 2000 in page 62 of Bundle B)
Further she did not deny that she was familiar with Section 18 (1) (i) of the Employment of Educators Act 76 of 1998 that states that an educator commits misconduct if she fails to carry out a lawful order or routine instruction without just or reasonable cause.
I do not agree with the applicant when she argues that she feared that the two boys that allegedly stole her hand bag could have come back to do her harm. The matter had been reported to the police
Further I do not agree with her that the people who hijacked her husband’s car two days later after she lost her bag could have come back to school to attack her. The incident had been reported to another police station.
I do not further agree with her when she says that the school authorities did nothing to ensure her safety. The resolutions of the meeting called by the employer on 27th July 2000 in which she was present addressed her concerns to alleviate her fears
Subsequent to that meeting, she was expected to have reported back to school, but she defiantly stayed away;
Further I do not agree with her that she could not come to school because she had applied for a transfer, she could not prove its approval
The applicant had recourse to the law enforcement agencies or the courts to force law enforcement agencies to act, so she had no reason to fear the two boys, Phomolo and Harry;
The applicant failed to initiate the disciplinary enquiry against the boys as required by the school disciplinary procedure. She therefore has no reason to blame the school principal or the employer;
The grade 11 and 12 learners were left stranded without a teacher when she took a unilateral decision to resume duties at another school;
The employer’s administration and efficiency was prejudiced in that she had left her post before her transfer could be processed properly; and the school had to hire somebody on the governing body funds as the learners were agitated at the fact that they no teacher.
I find the rule given to the applicant to report at school where she was supposed to be reporting, to be reasonable and valid;
The applicant was employed and placed and was expected to be at Riverlea Secondary School on 13th September 2000 to 30th March 2001;
The applicant was also paid to teach learners at Riverlea Secondary School not somewhere else where she placed herself as she has admitted.
Against this background and on a balance of probabilities I find the dismissal of the applicant to be substantively fair. I therefore, in conclusion make the following award:
After considering the submissions and arguments of both parties, I therefore make the following award:
• That the dismissal of the applicant be upheld as at 3rd April 2002;
• That I make no order as to costs.
The ELRC Commissioner: Willie Moyahabo Ralefeta
Date: 28th March 2004
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 929-02/03 GP
APPLICANT K F C FRANSCHE
RESPONDENT DEPARTMENT OF EDUCATION GP
NATURE UNFAIR DISMISSAL
ARBITRATOR W M RALEFETA
DATE OF ARBITRATION 17 MARCH 2005
APPLICANT I HAFFEGGEE
RESPONDENT MS PINKIE TSUBELE
1 That the dismissal of the applicant be upheld as at 3rd April 2002;
2 That I make no order as to costs.
DATE OF AWARD 28 MARCH 2005