PSES 56-07/08
PSES 56-07/08
Award Date:
19 April 2007
Case Number: PSES 56-07/08
Province: Free State
Applicant: A.L. Lengau
Respondent: Department of Education: Free State
Issue: Unfair Dismissal - Misconduct
Venue: Welkom
Award Date: 19 April 2007
Arbitrator: Mokete Moloi
IN THE ELRC HELD IN WELKOM ON 29 AUGUST 2008, 21 SEPTEMBER 2010 AND 19 JANUARY 2011
CASE NO PSES 56-07/08
In the matter between
A.L. Lengau Applicant
AND
Department of Education: FS Respondent
ARBITRATION AWARD
1. DETAILS OF HEARING AND REPRESENTATION
1.1 The hearing took place at respondent’s offices in Welkom on 29 August, 9 October 2008 and 19 January 2011. Applicant was represented by his attorney, Mr. Van Aswegen while Mr. Tlale represented respondent. Mr. Slabbert replaced Mr. van Aswegen, applicant’s representative.
2 ISSUE TO BE DETERMINED
2.1 It has to be determined whether or not the dismissal Mr. A.L. Lengau by the Department of Education on 19 April 2007 was fair. Appropriate relief should be determined in accordance with the findings.
3. BACKGROUND TO THE ISSUE
3.1 Mr Lengau was principal of respondent’s Lehakwe Primary School in Welkom at the material times. He was charged with misconduct to which he pleaded guilty and he was dismissed.
4. SURVEY OF EVIDENCE AND ARGUMENT
EMPLOYER’S CASE
4.1 Mr. W. Du Preez (“du Preez”)
Du Preez testified under oath:
4.1.1 He presided over the misconduct hearing of applicant, on 24 November 2006. Applicant pleaded not guilty to the charges against him and the hearing was postponed at his instance as he had no representation. On 5 December 2006 applicant was represented by Mr. Bekeer of SADTU who told him that they were changing the plea of “not guilty” to that of “guilty”. Applicant was in attendance and he confirmed the changing of the plea and also confirmed that he understood the seriousness of the charges against him,
4.1.2 He found applicant guilty of the charges against him and pronounced the sanction of dismissal. It is a sensitive issue if people treat school funds in the manner that applicant did. Applicant’s conduct amounted to taking from the poor their hand-earned money.
4, 1, 3 He considered applicant’s mitigating circumstances.
4.1.4 According to page 23 of Bundle A (“A”) of the documents applicant was served with the notice of charges against him on 17 November 2006 while the conduct complained of occurred in 2004. The delay in instituting disciplinary action against applicant did not bother him as he once handled a case which was brought after a lapse of four years since the occurrence of the alleged misconduct. On average misconduct cases in the department are instituted long after the date on which the alleged misconduct occurred.
4.1.5 There is zero tolerance policy towards fraud in the department.
4.1.6 He never talked to Mr. Bekeer in the absence of applicant and a plea bargain was never mentioned to him at the hearing. A plea bargain would not be struck with him as chairperson of the hearing. The issue of the delay in instituting disciplinary action was not raised at the hearing.
4.2 MR. BOITUMELO LEFETE (“Lefete”)
4.2.1 Lefete testified under oath:
4.2.2 He investigated the financial affairs of Lehakwe Primary School.
The investigation lasted almost a year and he struggled to get source documents from applicant. The delay in finalising the investigation was largely caused by applicant’s inability to furnish required documents when required to do so.
4.2.3 Applicant was Accounting Officer of the school and he is the one who initiated transactions. His report on the investigation is contained in pages 11 – 20 of A. (his recommendation that applicant be charged with misconduct was approved by the HOD on 3 April 2006.)
4.2.4 CHARGE 1
4.2.4.1 Applicant was charged with having committed an act of dishonesty by appropriating an amount of R3240-00 meant for the school fund. The receipts through which the monies were collected appear on pages 24 – 56 of A. Applicant used to bank less money than collected through the receipts. The period over which the monies were collected ran from January 2004 – October 2004.
The clerk at the school namely Lenong told him she handed the monies which she had collected to applicant. Lenong was charged for having taken R3260-00 of the school fund and this amount does not include the monies she had given to applicant – see page 19 of A.
4.2.4.2 He was given the letter of Lenong which appears in page 14 of Bundle B (“B”) of the documents by applicant but the amounts here are not those that he investigated and for which Lenong was charged. Applicant did not say that the R1600- 00 over which he was asked was part of R2240-00 to which Lenong refers in her letter inn page 14 of B.
4.2.5 CHARGE 2
4.2.5.1 Applicant falsified the Analysis book (page 65 of A) in that he entered in the book that he had collected an amount of R1300-00 per receipt numbers 0849 – 0864 while in reality R700-00 was collected through these receipts (refer to pages 58 – 61 of A). Applicant did not explain this discrepancy and he did not offer the explanation that he is now giving namely that the R1300-00 reflected in the Analysis book was banked per bank deposit slip on page 62 of A as well as that his only mistake was not to reflect that R500-00 of the R1300-00 was an amount in cheque. At any rate the amount collected per receipts 0849 – 0864 amounts to R700-00 and not R800-00 that is reflected as cash on the bank deposit slip on page 62 of A. Page 63 of A (copy of bank statement) shows that an amount of R1300-00 was deposited on 4 November 2004. Applicant did also not explain that someone else collected an amount of R100-00 per receipt numbers 0855 – 0856 on page 59 of A.
4.2.6 CHARGE 3
4.2.6.1 Applicant incurred fruitless expenditure in the amount of R11221-00 over a period of time and there were no supporting documents in respect of the various transactions which make out the total of the fruitless expenditure in question. The fruitless expenditure is made up by the following amounts expended in the mentioned months of 2004: R500-00 in March, R500-00 in May, R501-60 in August, R350-00 in September and R9370-00 in October. Since there were no supporting documents in respect of the monies expended, the expenditure is regarded as fruitless as it is not known for what it has been spent on and applicant did not give any explanation when asked about the expenses. Applicant also failed to submit copy of the invitation that he said he had received in respect of the expenses of R350-00 which he said he incurred in September 2004.
He has not testified how the amount of R9370-00 is made up. The receipt numbers that appear on pages 24 – 49 of A show that they had been issued by Messrs Lenong and Lehasa but the monies collected by the two is handed over to the principal who is the person who banked the collected monies.
HEARING OF 21 SEPTEMBER 2010
4.3 ME MAMPHOTLE RACHEL LENONG (“LENONG”)
4.3.1 Lenong testified under oath: She is a financial clerk at Lehakwe Primary School where applicant was principal. She collected school fees and other income of the school and handed same to applicant per his instructions. Pages 25 – 39 of A contain receipts of the monies she collected and handed to applicant. Applicant handled the banking of the monies himself.
4.3.2 She was pressurised by the applicant to write the letter on page 19 of B in which she admitted that she would pay an amount of R2240-00 to the school. She has never used any receipt book other than the official receipt books to collect school monies. She gave applicant the amount of R1660-00 that appears on page 2 of B. She gave the R1000-00 which appears on page 3 of B to applicant and Mrs Mongale.
4.3.3 She was not involved in making payments on behalf of the school as this was done by applicant alone. She gave the amounts of R150-00 and R200-00 that appear under March 2004 to the principal and does not understand why Lefete wrote as he did on page 3 of B.
4.3.4 She has never repaid any monies to the school and she wrote the letter in page 19 of B because she knew that at end of every year they sat down at the school to reconcile books and that the amount of R2240-00 referred to in the letter might be explained by the reconciliation.
4.4 MRS NTESELENG SELINA MONGALE (”Mongale”)
4.4.1 Mongale testified under oath: She was deputy principal to applicant at the material times. She was a member of the school’s finance committee but no meetings of this committee were ever held.
4.4.2 Mr Hlatlile and Mr Malope of respondent explained to them how school finances were to be managed – they said it was the school clerk’s duty to collect and bank school monies as well as to keep the analysis book. Applicant did the opposite of what Messrs Hatlile and Malope told them – Malope even sent the school a written guide on how to manage the school monies. After collecting monies the clerk would hand same the principal and to herself in the absence of the principal. In 2003 the clerk used to lock collected monies in the strongroom the keys of which were kept by applicant and Mr Mabele. At some stage in 2003 the money got lost in the strongroom and applicant had to pay it back. No files were kept in Lenong’s office. When Lenong had given her monies in absence of applicant she would hand same over to applicant the following day.
HEARING OF 19 JANUARY 2011
4.5 MR ABIA LIAU LENGAU (“Lengau”) testified under oath: His union representatives at the hearings were Mr Masondlo and Mr Bekeer. At the first sitting of the disciplinary hearing he pleaded not guilty. At the subsequent hearing Mr Bekeer pleaded guilty on his behalf but he was not satisfied with the plea of guilty. He was found guilty on the basis of the plea of guilty and he was dismissed.
4.6 The letter on page 19 of B was written by Lenong and in it she undertook to pay an amount of R2240-00 back to the school. The amount of R3240-00 that is referred to in charge 1 against him is the amount which Lenong undertook to pay in her letter on page 19 of B. The R3240-00 represents the shortfall that was discovered when the receipt book for the development fund was checked. The actual shortfall was more than the R3240-00 referred to in page 19 of B,
4.7 After Lenong had written the letter on page 19 of B he decided not to allow her to collect school monies any longer. He never ever took any monies collected for the school. All the monies which are said to have been taken by him are attributable to Lenong’s unfaithfulness.
4.8 Page 65 of A contains an extract of the school’s analysis book. The charge against him is that he falsified the analysis book. An amount of R1300-00 was collected on 4 November 2004 and he gave R500-00 of this amount to Mongale in cash for purposes of the school’s farewell function. The amount of R1300-00 was banked as per page 62 of A and R500-00 thereof was paid by the firm Hubbly Bubbly to the school. He has no training in financial matters and that is why he made the mistake of having given Mongale the R500-00 of the total takings of R1300-00.
4.9 The amount of R2500-00 was paid to reimburse educators for their transport expenses while attending workshops. The charge that there were no supporting documents for expenditure incurred is ascribable to his suspicion that the supporting documents were taken by Lenong and Mongale as they knew in advance that there would be an investigation into the financial affairs of the school. Lenong and Mongale acted this way because the School Governing Body (“ SGB”) had indicated that the school’s books would be taken to auditors with a view to determine which persons would be charged with misconduct.
4.10 His union told him that the initiator told him that if they pleaded guilty they would be given the documents on the basis of which they would conduct their case. He was present when a plea of guilty was entered on his behalf by his union but they never informed the chairperson the reason why they were pleading guilty. The plea bargain which he says was not implemented related to being furnished with documents on the basis of which they would conduct their case.
4.11 He was given Lefete’s report after he had concluded his investigations. The monies which were collected by receipts that appear on pages 25 -26 of A were collected by Lenong and she never gave all of it to him. The amount of R3110-00 which was given to him and for the receipt of which he signed was banked in January 2004.
4,12 The people who audited the books coached him on how to handle financial books and Mr Hatlile of respondent never trained him but merely advised him. The investigations into the school’s finances started because Lenong and Mongale phoned respondent in Bloemfontein. He realized at the commencement of the arbitration hearing what charge 3 was about and he suspected that Lenong and Mongale removed the supporting documents. School books and documents were taken by Lefete from the auditors. When he pleaded guilty at the disciplinary hearing he went along with the advice of his union but with hindsight he would not have pleaded guilty.
5. RESPONDENT’S CLOSING ARGUMENT
The closing argument of respondent is as follows:
5.1 applicant pleaded guilty at the disciplinary hearing because he knew he committed the misconduct in question. He confirmed at the arbitration hearing that he referred an unfair dismissal dispute because by pleading guilty he had hoped for a lesser sanction;
5.2 respondent’s witnesses were reliable and honest whereas applicant fabricated stories against Lenong and Mongale. He came up with versions that were not placed before respondent’s witnesses to enable them to respond to same. Applicant was an unreliable and dishonest witness;
5.3 respondent has proven all the charges against applicant;
5.4 the misconduct of dishonesty warrants dismissal because it impacts on the employment relationship;
5.5 applicant did not raise the issue of inconsistency at the arbitration hearing to enable respondent to deal with same;
5.6 applicant conceded that he was accounting officer of the school he headed and in this capacity the final responsibility to account for use of the school fund stays with him;
5.7 after he pleaded guilty at his disciplinary hearing there was no need for respondent to adduce evidence against him. His mitigating circumstances were taken into account in determining the appropriate sanction.
In view of the foregoing respondent submits that the sanction of dismissal should not be interfered with and that applicant should not be reinstated.
6. APPLICANT’S CLOSING ARGUMENT
Applicant’s closing argument is as follows:
6.1 his dismissal was procedurally unfair in that he was found guilty on his plea of guilty alone without any evidence having been led. The presiding officer should ensure that a plea of guilty in fact represents the true position of the employee.
6.2 The dismissal was substantively unfair in that the employer acted inconsistently in not charging Lenong as they did applicant.
The amount which is said to be missing is the amount which Lenong admitted to having taken
6.3 He was a truth worthy witness who made a good impression.
In view of the foregoing applicant submits that he should be reinstated retrospectively alternatively he should be awarded compensation for 18 months.
7. ANALYSIS OF EVIDENCE AND ARGUMENT
7.1 An arbitration does not amount to review of or appeal against internal disciplinary inquiry, but requires a hearing de novo based upon evidence properly presented to arbitrating commissioner – DB Thermal (Pty) Ltd V CCMA & others (2000) 10 BLLR 1163 (LC).
7.2 In alleged unfair dismissal disputes, the employer bears the onus of proving – on a balance of probabilities - that the dismissal of the employee was procedurally and substantially fair – Janda v First National Bank (2006) 12 BLLR 1156 (LC).
The onus of proof in the true sense rests on the employer throughout the arbitration hearing and the employee bears no more than evidential burden where such is called for.
7.3 Contrary to what has been submitted with regard to applicant being a trustworthy witness who made a good impression, I found him to be an unreliable witness who heaped all the blame on Lenong and Mongale for what had befallen him. At some stages during his cross examination by respondent applicant would not respond to pointed questions and when pressed for a response he would give a response aimed at showing that Lenong and Mongale were colluding against him. Applicant came up with versions that were not put to respondent’s witness when they testified so that they could deal with same or respond thereto – he said Lefete never took his statement into account and never included same into his report; he said the investigations into the affairs of the school were done at the instance of Lenong and Mongale; he said Lenong and Mongale removed documents from the school in order to put him in a bad light. Both Lenong and Mongale testified in applicant’s presence and they were not confronted with these versions. In my view applicant did not testify truthfully but was more interested in painting a dim picture of respondent’s witnesses.
7.4 As against applicant Mongale was an impressive witness who testified truthfully and stated clearly if she did not know about something for example the letter in which Lenong wrote to the SGB concerning missing funds.
7.5 Lenong was a less impressive witness with regard to the letter she wrote to the SGB. At some stage she said she wrote the letter under pressure and later said she wrote it because she knew that the “missing” funds would be cleared at the end of the year during reconciliation process. With regard to her being responsible for collecting school monies and handling same to the principal or his deputy Lenong was corroborated by Mongale.
7.6 Lefete testified that during his investigations Lenong informed him that she gave R1660-00 which she had collected through receipt numbers 2341 – 2377 dated from 15 January 2004 – 27 January 2004 to applicant. Applicant did not dispute having been given the amount by Lenong. He testified that this amount of R1600-00 was not banked by applicant – see page 62 of A. Likewise, Lenong told him that the amount of R1000-00 she had collected per receipt numbers 2378 – 2397 during the period 2 February to 27 February 2004 was given to applicant. He found no proof that this amount was banked by applicant and applicant did not explain what had happened to that amount money. Applicant himself received amounts of R170-00 per receipt numbers 3597 – 3600 (during the period 4 October 2004 up to 5 October 2004) and R2800-00 per receipt numbers 0801 – 0861 (period 5 October 2004 up to November 2004).
Of the total of R2970-00 which applicant had collected he banked only R2330-00 and thus leaving a shortage of R640-00. The amount of R640-00 + R1000-00 + R1600-00 = R3240-00 which forms the basis of charge 1.
7.7 Lefete denied that the amount of R3260-00 for which Lenong was charged formed any part of R3240-00 for which applicant was charged – refer to page 19 of A. Likewise, Lefete denied that the amount of R2240-00 which appears on page 14 of B ever formed part of his investigations.
7.8 In the face of charge 1 against him like in all the other charges, applicant denied everything and sought to heap the blame on Lenong. He testified that when Lenong was confronted by the SGB she eventually produced the development fund receipt book and the tallying of the receipt book and the cash she had in her possession revealed a shortage of something in the region of R3240-00 and as a result of this shortfall Lenong was made to sign the acknowledgement of indebtedness that appears on page 19 of B. The difficulty with this version of applicant is that it was never put to Lefete at the time of his cross examination and when he made it clear that he never investigated the amount of R2240-00 mentioned in her letter of indebtedness. Furthermore, Lefete was adamant that the amount of R3240-00 was collected by Lenong and given to applicant while some was collected by applicant himself. Applicant’s other version is that the amount of R2240-00 which Lenong undertook to pay did not represent all the monies she owed – this in my view is another example of how applicant is trying to blame Lenong for his sins. Why did applicant and other signatures of the Lenong letter not insist that all the monies in Lenong’s possession be included in her letter of undertaking to pay? It is applicant himself who testified that the SGB requested that Lenong write that letter because they were afraid she might change later. The probability is that Lenong had no other amounts in her possession at the time of her writing the letter as contended for by applicant.
7.9 During his cross-examination it was pointed out that receipt numbers 3597 – 3600 and 0801 were issued by applicant himself and had collected a total amount of R220-00 per these receipts – see pages 40 – 41 of A. A Mr. Lehasa collected a total amount R610-00 per receipt numbers 0802 -0814 and applicant signed for the receipt of this amount – see applicant’s acknowledging signature dated 11 October 2004 on page 44 of A.
Receipt numbers 0815 – 0826; 0830 - -834 were issued by applicant himself see 47 – 48 of A. Applicant acknowledged receipt of the total amount of R1000-00 from receipts issued by himself and Lehasa by signing for that amount on 21 October 2004 – see 49 in this regard.
7.10 Receipt numbers 0835 – 0837 were issued by Mashiloane while receipt numbers 0838 – 0864 were issued by applicant himself. The total amount collected per these receipts amount to R1500-00. The total amount of all the above receipts and for which applicant has acknowledged receipt by way of signing for same amounts R3110-00. I may just mentioned that receipt numbers 0855 and 0856 on page 54 of A are completely blank and do not appear to have been cancelled.
7.11 When asked what had happened to all the monies which were given to him and which he himself collected and whose whereabouts could not be determined by Lefete’s investigations applicant was clearly uncomfortable and eventually said that the monies had been banked. When asked for proof of this he said that the documents were in respondent’s possession. I do not accept this explanation by applicant. Applicant was represented by a legal practitioner from day one of this arbitration namely 29 September 2008. He knew all along – since the date he was served with misconduct charges – that respondent’s case against him regarding charge 1 was that he dishonestly took an amount of R3240-00 for personal use. If he indeed believed in the veracity of his version that he had banked the monies in question, he would have given instructions to his legal representative to this extent and they would have taken the necessary steps (including subpoena of whomever was in possession of the banking documents) to have the documents produced at the arbitration in support of his claim that he banked those monies – respondent’s case is that he took the monies for own use since no trace of where the monies ended could be made during Lefete’s investigation.
7.12 In my view respondent’s has made out a case against applicant on the basis of charge 1 and I consequently find him guilty of this charge. As accounting officer of the school the final responsibility lay with applicant to give full account of every cent which has been collected on behalf of the school – he has failed to do so and has no reasonable explanation for such failure. A reasonable inference from the facts before me is that applicant probably took the amount in question for personal use. The taking of the school’s monies in the circumstances of this case by a person of the authority of applicant is clearly dishonest.
7.13 With regard to charge 2 Lefete testified that an amount of R800-00 is shown to have been collected by applicant in October and November 2004 as per receipts numbers 0849 – 0864 – see pages 58 – 61 of A. The analysis book containing these receipt numbers reflect a deposit of R1300-00 having been made on 4 November 2004 whereas the receipts in question collected an amount of R800-00 in cash. The amount of R1300-00 which was banked by applicant on 4 November 2009 represents the R800-00 collected through the above receipts plus a cheque in the amount of R500-00 which was received from Hubbly Bubbly. Lefete testified that the falsification of the analysis book was constituted by the fact that the entry of 4 November 2004 in the analysis book to the effect that an amount of R1300-00 was collected per receipts numbers 0849 – 0864 is false in that only R800 was received per these receipt numbers by applicant himself.
7.14 Applicant conceded that he wrote up the analysis book but denied that the other writings on page 65 are his, he specifically denied that he wrote the amount of R650-00 which Mr. Tlale of respondent seemed to believe constituted the charge against applicant. Applicant testified that indeed he collected R1300-00, five hundred rand of which was a cheque from Hubbly Bubbly. Of this R1300-00 he said he gave R500-00 to Mongale for a farewell function. If this version of applicant is accepted then what should have been reflected in the analysis book is an amount of R1300-00 less the R500-00 he gave in cash to Mongale as an expense but the analysis book does not reflect this. On the other hand the entry of 4 November to the effect that R1300-00 was received per receipt numbers 0849 – 0864 is not true because only R800-00 in cash was collected through these receipts. If applicant indeed collected a total amount of R1300-00 which is shown to have been banked, where did he get the R500-00 which he gave to Mongale from? He testified that the R500-00 which he gave to Mongale would be made good by the R500-00 amount in cheque from Hubbly Bubbly!
7.15 Applicant sought to explain this confusion regarding the cheque and why he gave Mongale the cash of R500-00 by saying that he had no training in financial matters. I reject this explanation in the light of the unwavering testimony by Mongale that applicant received financial training as well as that a manual instruction on financial matters was given to applicant.
7.16 I find that to the extent that applicant’s entry in the analysis book that R1300-00 was collected through receipt numbers 0849 – 0864 is misleading because only R800-00 was collected through these receipts. I have already rejected applicant’s explanation that all this was due to lack of training. He did not contest Mongale’s pointed testimony that Messrs Hatlile and Malope explained to them how to deal with school funds and of critical importance that it was the clerk’s duty to collect and bank school monies – a duty that applicant irregularly made his own. Though respondent has not made out the charge of falsification of the analysis book against applicant the way in which applicant has dealt with the R500-00 which he allegedly gave to Mongale shows that he dealt with respondent’s monies in a blatantly irresponsible manner.
7.17 Lefete testified way back on 29 August 2008 and his testimony with regard to charge 3 is that applicant incurred expenditure in the amount of R11221-00 which expenditure he could not explain by way of furnishing supporting documents. When he testified on 19 January 2011, a good two years and some four months after Lefete had testified, applicant was still unable to explain the expenditure or furnish supporting documents for the expenditure. Instead of explaining the expenditure and producing supporting documents applicant resorted to blaming Lenong and Mongale and accused them of having taken the documents in question. I reject applicant’s overworked excuse of heaping blame on Lenong and Mongale for his ills and I find that respondent has proven Charge 3 against applicant.
7.18 I do not find any merit in applicant’s argument that the chairperson of the hearing did nothing to ensure that applicant indeed understood his plea of guilty – du Preez’s testimony to this end was not shaken. It is still a mystery why applicant has not called his union representative Mr Bekeer – the person who made him plead guilty – as a witness in support of his position regarding this aspect of the case. It is also significant to note that this aspect of his case was not part of his grounds of appeal as one would have expected it to be – is this perhaps a case of afterthought on applicant’s part.?
7.19 Applicant’s argument of inconsistency on the part of respondent cannot assist him in my view. While Lenong wrote a letter in which she undertook to pay back the money to the school, there is not similar letter on the part of respondent with regard to monies for which he could not account! Instead of owning up like Lenong did applicant sought to make both Lenong and Mongale the fall guys. Applicant was accounting officer of the school while Lenong was a mere clerk who was irregularly stripped of her duties to deal with school monies by applicant himself.
7.20 The Constitutional Court has held that arbitrators are required to take all circumstances into account when determining appropriateness of sanction of dismissal, including among others, importance of rule, employers’ reason for imposing sanction, harm caused by misconduct and whether progressive discipline might avoid repetition – Sidumo & another v Rustenburg Platinum Mines Ltd & other (2007) 12 BLLR 1097 (CC).
7.21 The rule against dishonest conduct of employees is an age old one and goes to the very foundations of the employment relationship. It is expected from employees to act honestly towards employers and not to engage in any dishonest conduct that might destroy the trust upon which the employment relationship is based. Applicant was a school principal and accounting officer of his school. A school of the type where applicant worked is a public institution in whose smooth and orderly functioning the public has an interest – after all it is the public, the taxpayers’ monies that are used to fund the school as well as pay the employees’ of the school’s salaries. The conduct of applicant of dealing dishonestly with the school’s monies as well as spend it without being able to account for the expenditure destroys the trust upon which his employment with respondent is founded and also goes against public interest. The public needs to have faith that the people who are placed at the helm of important institutions such as schools are honest and trustworthy people – unfortunately the conduct in which applicant engaged does not make him a person in whom the public can put their trust.
7.22 Applicant usurped Lenong’s duties of collecting and banking school monies – there is evidence before me that it was Lenong, the clerk, who was responsible to collect and bank school monies and not applicant. Applicant created circumstances in which he could do as he pleased with school monies this he would not be able to do if he had left the collection and banking of school monies in Lenong’s hands. In my view it was in applicant’s scheme of things to have full control of school monies so that he could engage in dishonest conduct such as he did.
7.23 Applicant maintained that he was innocent in the face of overwhelming evidence against him. He did not hesitate to try shift all the blame on Lenong and Mongale. In my view applicant is unrepentant and shows no remorse at all. Applicant is likely to repeat the misconduct if reinstated. A sanction of dismissal seems to be the most appropriate in the circumstances of this case.
7.24 Though applicant seemed to complain early on at commencement of the hearing about the length of time it had taken for respondent to bring charges of misconduct against him, he never followed up on this aspect – he did not indicate on the basis of which authority or prescript he was complaining about the delay and did not even touch on this delay in his closing argument.
8. AWARD
8.1 I find that the dismissal of Mr. Abia Liau Lengau by the Department of Education: F.S. on 19 April 2007 was procedurally and substantively fair. I confirm the dismissal.
8.2 There is no order as to costs.
ELRC PANELIST: MOKETE MOLOI
Province: Free State
Applicant: A.L. Lengau
Respondent: Department of Education: Free State
Issue: Unfair Dismissal - Misconduct
Venue: Welkom
Award Date: 19 April 2007
Arbitrator: Mokete Moloi
IN THE ELRC HELD IN WELKOM ON 29 AUGUST 2008, 21 SEPTEMBER 2010 AND 19 JANUARY 2011
CASE NO PSES 56-07/08
In the matter between
A.L. Lengau Applicant
AND
Department of Education: FS Respondent
ARBITRATION AWARD
1. DETAILS OF HEARING AND REPRESENTATION
1.1 The hearing took place at respondent’s offices in Welkom on 29 August, 9 October 2008 and 19 January 2011. Applicant was represented by his attorney, Mr. Van Aswegen while Mr. Tlale represented respondent. Mr. Slabbert replaced Mr. van Aswegen, applicant’s representative.
2 ISSUE TO BE DETERMINED
2.1 It has to be determined whether or not the dismissal Mr. A.L. Lengau by the Department of Education on 19 April 2007 was fair. Appropriate relief should be determined in accordance with the findings.
3. BACKGROUND TO THE ISSUE
3.1 Mr Lengau was principal of respondent’s Lehakwe Primary School in Welkom at the material times. He was charged with misconduct to which he pleaded guilty and he was dismissed.
4. SURVEY OF EVIDENCE AND ARGUMENT
EMPLOYER’S CASE
4.1 Mr. W. Du Preez (“du Preez”)
Du Preez testified under oath:
4.1.1 He presided over the misconduct hearing of applicant, on 24 November 2006. Applicant pleaded not guilty to the charges against him and the hearing was postponed at his instance as he had no representation. On 5 December 2006 applicant was represented by Mr. Bekeer of SADTU who told him that they were changing the plea of “not guilty” to that of “guilty”. Applicant was in attendance and he confirmed the changing of the plea and also confirmed that he understood the seriousness of the charges against him,
4.1.2 He found applicant guilty of the charges against him and pronounced the sanction of dismissal. It is a sensitive issue if people treat school funds in the manner that applicant did. Applicant’s conduct amounted to taking from the poor their hand-earned money.
4, 1, 3 He considered applicant’s mitigating circumstances.
4.1.4 According to page 23 of Bundle A (“A”) of the documents applicant was served with the notice of charges against him on 17 November 2006 while the conduct complained of occurred in 2004. The delay in instituting disciplinary action against applicant did not bother him as he once handled a case which was brought after a lapse of four years since the occurrence of the alleged misconduct. On average misconduct cases in the department are instituted long after the date on which the alleged misconduct occurred.
4.1.5 There is zero tolerance policy towards fraud in the department.
4.1.6 He never talked to Mr. Bekeer in the absence of applicant and a plea bargain was never mentioned to him at the hearing. A plea bargain would not be struck with him as chairperson of the hearing. The issue of the delay in instituting disciplinary action was not raised at the hearing.
4.2 MR. BOITUMELO LEFETE (“Lefete”)
4.2.1 Lefete testified under oath:
4.2.2 He investigated the financial affairs of Lehakwe Primary School.
The investigation lasted almost a year and he struggled to get source documents from applicant. The delay in finalising the investigation was largely caused by applicant’s inability to furnish required documents when required to do so.
4.2.3 Applicant was Accounting Officer of the school and he is the one who initiated transactions. His report on the investigation is contained in pages 11 – 20 of A. (his recommendation that applicant be charged with misconduct was approved by the HOD on 3 April 2006.)
4.2.4 CHARGE 1
4.2.4.1 Applicant was charged with having committed an act of dishonesty by appropriating an amount of R3240-00 meant for the school fund. The receipts through which the monies were collected appear on pages 24 – 56 of A. Applicant used to bank less money than collected through the receipts. The period over which the monies were collected ran from January 2004 – October 2004.
The clerk at the school namely Lenong told him she handed the monies which she had collected to applicant. Lenong was charged for having taken R3260-00 of the school fund and this amount does not include the monies she had given to applicant – see page 19 of A.
4.2.4.2 He was given the letter of Lenong which appears in page 14 of Bundle B (“B”) of the documents by applicant but the amounts here are not those that he investigated and for which Lenong was charged. Applicant did not say that the R1600- 00 over which he was asked was part of R2240-00 to which Lenong refers in her letter inn page 14 of B.
4.2.5 CHARGE 2
4.2.5.1 Applicant falsified the Analysis book (page 65 of A) in that he entered in the book that he had collected an amount of R1300-00 per receipt numbers 0849 – 0864 while in reality R700-00 was collected through these receipts (refer to pages 58 – 61 of A). Applicant did not explain this discrepancy and he did not offer the explanation that he is now giving namely that the R1300-00 reflected in the Analysis book was banked per bank deposit slip on page 62 of A as well as that his only mistake was not to reflect that R500-00 of the R1300-00 was an amount in cheque. At any rate the amount collected per receipts 0849 – 0864 amounts to R700-00 and not R800-00 that is reflected as cash on the bank deposit slip on page 62 of A. Page 63 of A (copy of bank statement) shows that an amount of R1300-00 was deposited on 4 November 2004. Applicant did also not explain that someone else collected an amount of R100-00 per receipt numbers 0855 – 0856 on page 59 of A.
4.2.6 CHARGE 3
4.2.6.1 Applicant incurred fruitless expenditure in the amount of R11221-00 over a period of time and there were no supporting documents in respect of the various transactions which make out the total of the fruitless expenditure in question. The fruitless expenditure is made up by the following amounts expended in the mentioned months of 2004: R500-00 in March, R500-00 in May, R501-60 in August, R350-00 in September and R9370-00 in October. Since there were no supporting documents in respect of the monies expended, the expenditure is regarded as fruitless as it is not known for what it has been spent on and applicant did not give any explanation when asked about the expenses. Applicant also failed to submit copy of the invitation that he said he had received in respect of the expenses of R350-00 which he said he incurred in September 2004.
He has not testified how the amount of R9370-00 is made up. The receipt numbers that appear on pages 24 – 49 of A show that they had been issued by Messrs Lenong and Lehasa but the monies collected by the two is handed over to the principal who is the person who banked the collected monies.
HEARING OF 21 SEPTEMBER 2010
4.3 ME MAMPHOTLE RACHEL LENONG (“LENONG”)
4.3.1 Lenong testified under oath: She is a financial clerk at Lehakwe Primary School where applicant was principal. She collected school fees and other income of the school and handed same to applicant per his instructions. Pages 25 – 39 of A contain receipts of the monies she collected and handed to applicant. Applicant handled the banking of the monies himself.
4.3.2 She was pressurised by the applicant to write the letter on page 19 of B in which she admitted that she would pay an amount of R2240-00 to the school. She has never used any receipt book other than the official receipt books to collect school monies. She gave applicant the amount of R1660-00 that appears on page 2 of B. She gave the R1000-00 which appears on page 3 of B to applicant and Mrs Mongale.
4.3.3 She was not involved in making payments on behalf of the school as this was done by applicant alone. She gave the amounts of R150-00 and R200-00 that appear under March 2004 to the principal and does not understand why Lefete wrote as he did on page 3 of B.
4.3.4 She has never repaid any monies to the school and she wrote the letter in page 19 of B because she knew that at end of every year they sat down at the school to reconcile books and that the amount of R2240-00 referred to in the letter might be explained by the reconciliation.
4.4 MRS NTESELENG SELINA MONGALE (”Mongale”)
4.4.1 Mongale testified under oath: She was deputy principal to applicant at the material times. She was a member of the school’s finance committee but no meetings of this committee were ever held.
4.4.2 Mr Hlatlile and Mr Malope of respondent explained to them how school finances were to be managed – they said it was the school clerk’s duty to collect and bank school monies as well as to keep the analysis book. Applicant did the opposite of what Messrs Hatlile and Malope told them – Malope even sent the school a written guide on how to manage the school monies. After collecting monies the clerk would hand same the principal and to herself in the absence of the principal. In 2003 the clerk used to lock collected monies in the strongroom the keys of which were kept by applicant and Mr Mabele. At some stage in 2003 the money got lost in the strongroom and applicant had to pay it back. No files were kept in Lenong’s office. When Lenong had given her monies in absence of applicant she would hand same over to applicant the following day.
HEARING OF 19 JANUARY 2011
4.5 MR ABIA LIAU LENGAU (“Lengau”) testified under oath: His union representatives at the hearings were Mr Masondlo and Mr Bekeer. At the first sitting of the disciplinary hearing he pleaded not guilty. At the subsequent hearing Mr Bekeer pleaded guilty on his behalf but he was not satisfied with the plea of guilty. He was found guilty on the basis of the plea of guilty and he was dismissed.
4.6 The letter on page 19 of B was written by Lenong and in it she undertook to pay an amount of R2240-00 back to the school. The amount of R3240-00 that is referred to in charge 1 against him is the amount which Lenong undertook to pay in her letter on page 19 of B. The R3240-00 represents the shortfall that was discovered when the receipt book for the development fund was checked. The actual shortfall was more than the R3240-00 referred to in page 19 of B,
4.7 After Lenong had written the letter on page 19 of B he decided not to allow her to collect school monies any longer. He never ever took any monies collected for the school. All the monies which are said to have been taken by him are attributable to Lenong’s unfaithfulness.
4.8 Page 65 of A contains an extract of the school’s analysis book. The charge against him is that he falsified the analysis book. An amount of R1300-00 was collected on 4 November 2004 and he gave R500-00 of this amount to Mongale in cash for purposes of the school’s farewell function. The amount of R1300-00 was banked as per page 62 of A and R500-00 thereof was paid by the firm Hubbly Bubbly to the school. He has no training in financial matters and that is why he made the mistake of having given Mongale the R500-00 of the total takings of R1300-00.
4.9 The amount of R2500-00 was paid to reimburse educators for their transport expenses while attending workshops. The charge that there were no supporting documents for expenditure incurred is ascribable to his suspicion that the supporting documents were taken by Lenong and Mongale as they knew in advance that there would be an investigation into the financial affairs of the school. Lenong and Mongale acted this way because the School Governing Body (“ SGB”) had indicated that the school’s books would be taken to auditors with a view to determine which persons would be charged with misconduct.
4.10 His union told him that the initiator told him that if they pleaded guilty they would be given the documents on the basis of which they would conduct their case. He was present when a plea of guilty was entered on his behalf by his union but they never informed the chairperson the reason why they were pleading guilty. The plea bargain which he says was not implemented related to being furnished with documents on the basis of which they would conduct their case.
4.11 He was given Lefete’s report after he had concluded his investigations. The monies which were collected by receipts that appear on pages 25 -26 of A were collected by Lenong and she never gave all of it to him. The amount of R3110-00 which was given to him and for the receipt of which he signed was banked in January 2004.
4,12 The people who audited the books coached him on how to handle financial books and Mr Hatlile of respondent never trained him but merely advised him. The investigations into the school’s finances started because Lenong and Mongale phoned respondent in Bloemfontein. He realized at the commencement of the arbitration hearing what charge 3 was about and he suspected that Lenong and Mongale removed the supporting documents. School books and documents were taken by Lefete from the auditors. When he pleaded guilty at the disciplinary hearing he went along with the advice of his union but with hindsight he would not have pleaded guilty.
5. RESPONDENT’S CLOSING ARGUMENT
The closing argument of respondent is as follows:
5.1 applicant pleaded guilty at the disciplinary hearing because he knew he committed the misconduct in question. He confirmed at the arbitration hearing that he referred an unfair dismissal dispute because by pleading guilty he had hoped for a lesser sanction;
5.2 respondent’s witnesses were reliable and honest whereas applicant fabricated stories against Lenong and Mongale. He came up with versions that were not placed before respondent’s witnesses to enable them to respond to same. Applicant was an unreliable and dishonest witness;
5.3 respondent has proven all the charges against applicant;
5.4 the misconduct of dishonesty warrants dismissal because it impacts on the employment relationship;
5.5 applicant did not raise the issue of inconsistency at the arbitration hearing to enable respondent to deal with same;
5.6 applicant conceded that he was accounting officer of the school he headed and in this capacity the final responsibility to account for use of the school fund stays with him;
5.7 after he pleaded guilty at his disciplinary hearing there was no need for respondent to adduce evidence against him. His mitigating circumstances were taken into account in determining the appropriate sanction.
In view of the foregoing respondent submits that the sanction of dismissal should not be interfered with and that applicant should not be reinstated.
6. APPLICANT’S CLOSING ARGUMENT
Applicant’s closing argument is as follows:
6.1 his dismissal was procedurally unfair in that he was found guilty on his plea of guilty alone without any evidence having been led. The presiding officer should ensure that a plea of guilty in fact represents the true position of the employee.
6.2 The dismissal was substantively unfair in that the employer acted inconsistently in not charging Lenong as they did applicant.
The amount which is said to be missing is the amount which Lenong admitted to having taken
6.3 He was a truth worthy witness who made a good impression.
In view of the foregoing applicant submits that he should be reinstated retrospectively alternatively he should be awarded compensation for 18 months.
7. ANALYSIS OF EVIDENCE AND ARGUMENT
7.1 An arbitration does not amount to review of or appeal against internal disciplinary inquiry, but requires a hearing de novo based upon evidence properly presented to arbitrating commissioner – DB Thermal (Pty) Ltd V CCMA & others (2000) 10 BLLR 1163 (LC).
7.2 In alleged unfair dismissal disputes, the employer bears the onus of proving – on a balance of probabilities - that the dismissal of the employee was procedurally and substantially fair – Janda v First National Bank (2006) 12 BLLR 1156 (LC).
The onus of proof in the true sense rests on the employer throughout the arbitration hearing and the employee bears no more than evidential burden where such is called for.
7.3 Contrary to what has been submitted with regard to applicant being a trustworthy witness who made a good impression, I found him to be an unreliable witness who heaped all the blame on Lenong and Mongale for what had befallen him. At some stages during his cross examination by respondent applicant would not respond to pointed questions and when pressed for a response he would give a response aimed at showing that Lenong and Mongale were colluding against him. Applicant came up with versions that were not put to respondent’s witness when they testified so that they could deal with same or respond thereto – he said Lefete never took his statement into account and never included same into his report; he said the investigations into the affairs of the school were done at the instance of Lenong and Mongale; he said Lenong and Mongale removed documents from the school in order to put him in a bad light. Both Lenong and Mongale testified in applicant’s presence and they were not confronted with these versions. In my view applicant did not testify truthfully but was more interested in painting a dim picture of respondent’s witnesses.
7.4 As against applicant Mongale was an impressive witness who testified truthfully and stated clearly if she did not know about something for example the letter in which Lenong wrote to the SGB concerning missing funds.
7.5 Lenong was a less impressive witness with regard to the letter she wrote to the SGB. At some stage she said she wrote the letter under pressure and later said she wrote it because she knew that the “missing” funds would be cleared at the end of the year during reconciliation process. With regard to her being responsible for collecting school monies and handling same to the principal or his deputy Lenong was corroborated by Mongale.
7.6 Lefete testified that during his investigations Lenong informed him that she gave R1660-00 which she had collected through receipt numbers 2341 – 2377 dated from 15 January 2004 – 27 January 2004 to applicant. Applicant did not dispute having been given the amount by Lenong. He testified that this amount of R1600-00 was not banked by applicant – see page 62 of A. Likewise, Lenong told him that the amount of R1000-00 she had collected per receipt numbers 2378 – 2397 during the period 2 February to 27 February 2004 was given to applicant. He found no proof that this amount was banked by applicant and applicant did not explain what had happened to that amount money. Applicant himself received amounts of R170-00 per receipt numbers 3597 – 3600 (during the period 4 October 2004 up to 5 October 2004) and R2800-00 per receipt numbers 0801 – 0861 (period 5 October 2004 up to November 2004).
Of the total of R2970-00 which applicant had collected he banked only R2330-00 and thus leaving a shortage of R640-00. The amount of R640-00 + R1000-00 + R1600-00 = R3240-00 which forms the basis of charge 1.
7.7 Lefete denied that the amount of R3260-00 for which Lenong was charged formed any part of R3240-00 for which applicant was charged – refer to page 19 of A. Likewise, Lefete denied that the amount of R2240-00 which appears on page 14 of B ever formed part of his investigations.
7.8 In the face of charge 1 against him like in all the other charges, applicant denied everything and sought to heap the blame on Lenong. He testified that when Lenong was confronted by the SGB she eventually produced the development fund receipt book and the tallying of the receipt book and the cash she had in her possession revealed a shortage of something in the region of R3240-00 and as a result of this shortfall Lenong was made to sign the acknowledgement of indebtedness that appears on page 19 of B. The difficulty with this version of applicant is that it was never put to Lefete at the time of his cross examination and when he made it clear that he never investigated the amount of R2240-00 mentioned in her letter of indebtedness. Furthermore, Lefete was adamant that the amount of R3240-00 was collected by Lenong and given to applicant while some was collected by applicant himself. Applicant’s other version is that the amount of R2240-00 which Lenong undertook to pay did not represent all the monies she owed – this in my view is another example of how applicant is trying to blame Lenong for his sins. Why did applicant and other signatures of the Lenong letter not insist that all the monies in Lenong’s possession be included in her letter of undertaking to pay? It is applicant himself who testified that the SGB requested that Lenong write that letter because they were afraid she might change later. The probability is that Lenong had no other amounts in her possession at the time of her writing the letter as contended for by applicant.
7.9 During his cross-examination it was pointed out that receipt numbers 3597 – 3600 and 0801 were issued by applicant himself and had collected a total amount of R220-00 per these receipts – see pages 40 – 41 of A. A Mr. Lehasa collected a total amount R610-00 per receipt numbers 0802 -0814 and applicant signed for the receipt of this amount – see applicant’s acknowledging signature dated 11 October 2004 on page 44 of A.
Receipt numbers 0815 – 0826; 0830 - -834 were issued by applicant himself see 47 – 48 of A. Applicant acknowledged receipt of the total amount of R1000-00 from receipts issued by himself and Lehasa by signing for that amount on 21 October 2004 – see 49 in this regard.
7.10 Receipt numbers 0835 – 0837 were issued by Mashiloane while receipt numbers 0838 – 0864 were issued by applicant himself. The total amount collected per these receipts amount to R1500-00. The total amount of all the above receipts and for which applicant has acknowledged receipt by way of signing for same amounts R3110-00. I may just mentioned that receipt numbers 0855 and 0856 on page 54 of A are completely blank and do not appear to have been cancelled.
7.11 When asked what had happened to all the monies which were given to him and which he himself collected and whose whereabouts could not be determined by Lefete’s investigations applicant was clearly uncomfortable and eventually said that the monies had been banked. When asked for proof of this he said that the documents were in respondent’s possession. I do not accept this explanation by applicant. Applicant was represented by a legal practitioner from day one of this arbitration namely 29 September 2008. He knew all along – since the date he was served with misconduct charges – that respondent’s case against him regarding charge 1 was that he dishonestly took an amount of R3240-00 for personal use. If he indeed believed in the veracity of his version that he had banked the monies in question, he would have given instructions to his legal representative to this extent and they would have taken the necessary steps (including subpoena of whomever was in possession of the banking documents) to have the documents produced at the arbitration in support of his claim that he banked those monies – respondent’s case is that he took the monies for own use since no trace of where the monies ended could be made during Lefete’s investigation.
7.12 In my view respondent’s has made out a case against applicant on the basis of charge 1 and I consequently find him guilty of this charge. As accounting officer of the school the final responsibility lay with applicant to give full account of every cent which has been collected on behalf of the school – he has failed to do so and has no reasonable explanation for such failure. A reasonable inference from the facts before me is that applicant probably took the amount in question for personal use. The taking of the school’s monies in the circumstances of this case by a person of the authority of applicant is clearly dishonest.
7.13 With regard to charge 2 Lefete testified that an amount of R800-00 is shown to have been collected by applicant in October and November 2004 as per receipts numbers 0849 – 0864 – see pages 58 – 61 of A. The analysis book containing these receipt numbers reflect a deposit of R1300-00 having been made on 4 November 2004 whereas the receipts in question collected an amount of R800-00 in cash. The amount of R1300-00 which was banked by applicant on 4 November 2009 represents the R800-00 collected through the above receipts plus a cheque in the amount of R500-00 which was received from Hubbly Bubbly. Lefete testified that the falsification of the analysis book was constituted by the fact that the entry of 4 November 2004 in the analysis book to the effect that an amount of R1300-00 was collected per receipts numbers 0849 – 0864 is false in that only R800 was received per these receipt numbers by applicant himself.
7.14 Applicant conceded that he wrote up the analysis book but denied that the other writings on page 65 are his, he specifically denied that he wrote the amount of R650-00 which Mr. Tlale of respondent seemed to believe constituted the charge against applicant. Applicant testified that indeed he collected R1300-00, five hundred rand of which was a cheque from Hubbly Bubbly. Of this R1300-00 he said he gave R500-00 to Mongale for a farewell function. If this version of applicant is accepted then what should have been reflected in the analysis book is an amount of R1300-00 less the R500-00 he gave in cash to Mongale as an expense but the analysis book does not reflect this. On the other hand the entry of 4 November to the effect that R1300-00 was received per receipt numbers 0849 – 0864 is not true because only R800-00 in cash was collected through these receipts. If applicant indeed collected a total amount of R1300-00 which is shown to have been banked, where did he get the R500-00 which he gave to Mongale from? He testified that the R500-00 which he gave to Mongale would be made good by the R500-00 amount in cheque from Hubbly Bubbly!
7.15 Applicant sought to explain this confusion regarding the cheque and why he gave Mongale the cash of R500-00 by saying that he had no training in financial matters. I reject this explanation in the light of the unwavering testimony by Mongale that applicant received financial training as well as that a manual instruction on financial matters was given to applicant.
7.16 I find that to the extent that applicant’s entry in the analysis book that R1300-00 was collected through receipt numbers 0849 – 0864 is misleading because only R800-00 was collected through these receipts. I have already rejected applicant’s explanation that all this was due to lack of training. He did not contest Mongale’s pointed testimony that Messrs Hatlile and Malope explained to them how to deal with school funds and of critical importance that it was the clerk’s duty to collect and bank school monies – a duty that applicant irregularly made his own. Though respondent has not made out the charge of falsification of the analysis book against applicant the way in which applicant has dealt with the R500-00 which he allegedly gave to Mongale shows that he dealt with respondent’s monies in a blatantly irresponsible manner.
7.17 Lefete testified way back on 29 August 2008 and his testimony with regard to charge 3 is that applicant incurred expenditure in the amount of R11221-00 which expenditure he could not explain by way of furnishing supporting documents. When he testified on 19 January 2011, a good two years and some four months after Lefete had testified, applicant was still unable to explain the expenditure or furnish supporting documents for the expenditure. Instead of explaining the expenditure and producing supporting documents applicant resorted to blaming Lenong and Mongale and accused them of having taken the documents in question. I reject applicant’s overworked excuse of heaping blame on Lenong and Mongale for his ills and I find that respondent has proven Charge 3 against applicant.
7.18 I do not find any merit in applicant’s argument that the chairperson of the hearing did nothing to ensure that applicant indeed understood his plea of guilty – du Preez’s testimony to this end was not shaken. It is still a mystery why applicant has not called his union representative Mr Bekeer – the person who made him plead guilty – as a witness in support of his position regarding this aspect of the case. It is also significant to note that this aspect of his case was not part of his grounds of appeal as one would have expected it to be – is this perhaps a case of afterthought on applicant’s part.?
7.19 Applicant’s argument of inconsistency on the part of respondent cannot assist him in my view. While Lenong wrote a letter in which she undertook to pay back the money to the school, there is not similar letter on the part of respondent with regard to monies for which he could not account! Instead of owning up like Lenong did applicant sought to make both Lenong and Mongale the fall guys. Applicant was accounting officer of the school while Lenong was a mere clerk who was irregularly stripped of her duties to deal with school monies by applicant himself.
7.20 The Constitutional Court has held that arbitrators are required to take all circumstances into account when determining appropriateness of sanction of dismissal, including among others, importance of rule, employers’ reason for imposing sanction, harm caused by misconduct and whether progressive discipline might avoid repetition – Sidumo & another v Rustenburg Platinum Mines Ltd & other (2007) 12 BLLR 1097 (CC).
7.21 The rule against dishonest conduct of employees is an age old one and goes to the very foundations of the employment relationship. It is expected from employees to act honestly towards employers and not to engage in any dishonest conduct that might destroy the trust upon which the employment relationship is based. Applicant was a school principal and accounting officer of his school. A school of the type where applicant worked is a public institution in whose smooth and orderly functioning the public has an interest – after all it is the public, the taxpayers’ monies that are used to fund the school as well as pay the employees’ of the school’s salaries. The conduct of applicant of dealing dishonestly with the school’s monies as well as spend it without being able to account for the expenditure destroys the trust upon which his employment with respondent is founded and also goes against public interest. The public needs to have faith that the people who are placed at the helm of important institutions such as schools are honest and trustworthy people – unfortunately the conduct in which applicant engaged does not make him a person in whom the public can put their trust.
7.22 Applicant usurped Lenong’s duties of collecting and banking school monies – there is evidence before me that it was Lenong, the clerk, who was responsible to collect and bank school monies and not applicant. Applicant created circumstances in which he could do as he pleased with school monies this he would not be able to do if he had left the collection and banking of school monies in Lenong’s hands. In my view it was in applicant’s scheme of things to have full control of school monies so that he could engage in dishonest conduct such as he did.
7.23 Applicant maintained that he was innocent in the face of overwhelming evidence against him. He did not hesitate to try shift all the blame on Lenong and Mongale. In my view applicant is unrepentant and shows no remorse at all. Applicant is likely to repeat the misconduct if reinstated. A sanction of dismissal seems to be the most appropriate in the circumstances of this case.
7.24 Though applicant seemed to complain early on at commencement of the hearing about the length of time it had taken for respondent to bring charges of misconduct against him, he never followed up on this aspect – he did not indicate on the basis of which authority or prescript he was complaining about the delay and did not even touch on this delay in his closing argument.
8. AWARD
8.1 I find that the dismissal of Mr. Abia Liau Lengau by the Department of Education: F.S. on 19 April 2007 was procedurally and substantively fair. I confirm the dismissal.
8.2 There is no order as to costs.
ELRC PANELIST: MOKETE MOLOI