Case Number: PSES421-10/11 GP
Applicant: Ismael Mohamed Sirkhot
Respondent: Department of Education, Gauteng
Issue: Unfair Dismissal - Misconduct
Award Date: 16 December 2011
Arbitrator: K Driscoll
IN THE EDUCATION LABOUR RELATIONS COUNCIL
Case number: PSES421-10/11 GP
In the matter between:
ISMAEL MOHAMED SIRKHOT Applicant
GAUTENG DEPARTMENT OF EDUCATION Respondent
Details of hearing and representation
The above arbitration was held on the 8th of December 2011 at the Respondent’s offices, Johannesburg. Mr. Potgieter, an Attorney, represented the Applicant and Mr. Nawa appeared on behalf of the Respondent. No interpreter was required. The proceedings were mechanically recorded.
The parties confirmed the pre-arbitration minute of the 25th of July 2011. The Applicant submitted a bundle of documents to the arbitration which the Respondent supplemented with a copy of the Presiding Officer’s report.
In terms of the pre-arbitration minute the Applicant did not dispute committing the misconduct or that fair procedure was followed at the disciplinary hearing.
The parties confirmed that the only issue in dispute was the appropriateness of the sanction of dismissal.
The parties agreed that this issue would be dealt with by means of oral argument and without the necessity of calling any witnesses.
The Applicant was employed as a Post level 1 Educator at the St. Ives Primary School at the time of dismissal. The Applicant was charged with dishonesty in terms of Section 18(1) (ee) of the Employment of Educators Act, for collecting school fees from Learners in the amount of R900, issuing receipts, but failing to submit the money to the School. A disciplinary hearing was held on the 21st September, 15 October, 4 November and 7 December 2009. The Applicant pleaded not guilty to the charge and did not make any submission in mitigation of sanction at the disciplinary hearing. The Applicant was dismissed on the 22nd of December 2009 and the dismissal was upheld on appeal.
Issues to be determined
Whether the sanction of dismissal was appropriate.
Summary of submissions
The Respondent submitted that the decision to dismiss the Applicant was taken by an independent chair as per the summary of the report (See page 10 Respondent bundle). The Respondent submitted further that in terms of the Employment of Educators Act, Section 18 offences included the offence of dishonesty which may result in dismissal.
The Respondent submitted that the Applicant had not been remorseful at the disciplinary hearing or at his appeal. The Respondent argued that it was faced with the task of ensuring Educators are trustworthy and able to guide young people. The Respondent argued further that the Applicant was a negative symbol and Learners, parents and the community no longer trusted the Applicant. The Respondent submitted that it was in the interests of the community that a lesser sanction should not be imposed as the sanction of dismissal should also be a deterrent. The Respondent submitted further that the Applicant’s case could be distinguished from Mr. Lottering’s case as Mr. Lottering had pleaded guilty at his disciplinary hearing and had shown remorse.
The Applicant submitted that the personal circumstances of the Applicant should be considered when determining sanction. The Applicant submitted further that no mitigating factors had been considered at the disciplinary hearing as no submissions had been made. The Applicant submitted that the following factors should therefore be considered; that the Applicant was 60 years old, was a first time offender, had 38 years service, was married with two small children and is the sole breadwinner. The Applicant contended that there had been a similar case of a Mr. Lottering, who had been given a final written warning. The Applicant conceded that not all cases should be allocated the same sanction but argued that in terms of years of service, policy and protocol issues the sanction of a final written warning is the general sanction applied. The Applicant argued further that although the offence was considered a serious one in terms of Section 18, regard should be had to the monetary amount involved, which was R900.
The Applicant referred to Shoprite Checkers v CCMA & others (2008) 12 BLLR 1211 (LAC) and Shoprite Checkers v CCMA & others (2008) 9 BLLR 838 (LAC) which involved a dismissal of employees for theft. The Applicant submitted that the Labour Appeal Court had held that where an employee had a clean disciplinary record and thirty years service that the sanction of dismissal was too harsh and amended the sanction to that of a severe final warning and repayment of the loss. The Applicant submitted further that the Court had required that sufficient evidence be presented to show that there had been a breakdown in the trust relationship and if there are mitigating circumstances why these would not result in a sanction less than dismissal.
The Applicant submitted that the Applicant’s personal circumstances, the interests of society, the seriousness of the offence and remorse shown by the Applicant should be considered. The Applicant submitted further that in terms of the appeal documents the Applicant had indicated that he was remorseful. The Applicant argued that mercy should also be considered as it was an element of justice.
The Applicant submitted that Section 18 of the Employment of Educators Act provided that an employee “may” be dismissed and thus discretion should be exercised. The Applicant submitted further that regard should therefore be had to the Applicant’s years of service, clean disciplinary record and that the fact that the Applicant had been found guilty did not necessarily imply that the Applicant was a bad Educator. The Applicant requested that the sanction be changed to the more appropriate sanction of reinstatement with a final written warning, counseling and an appropriate fine.
6. Assessment of evidence and argument
When determining an appropriate sanction consideration should be had not only to the gravity of the offence but also the merits of the case, the applicability of progressive disciplinary measures and the circumstances of the employee. Regard should also be had to the harm caused by the conduct, the actual prejudice suffered, the extent to which the trust relationship has been impaired and the effect of the conduct on other employees. In terms of the Constitutional Court judgment in Sidumo & another v Rustenburg Platinum Mines Ltd & others I am required to determine whether the sanction, given all the circumstances, was fair and that the 'reasonable employer test' is not applicable. The Court further held that an arbitrator should consider, inter alia, the interests of both the employee and the employer, the reasons for the rule and for the proscribing of the penalty and the importance of the rule for the running of the business.
I agree with the Applicant’s contention that mitigating factors, including the employee’s personal circumstances should be considered when determining an appropriate sanction (See Toyota South Africa Motors (Pty) Ltd v Radebe and Others  3 BLLR 243 (LAC) where the Labour Appeal Court confirmed that mitigating factors must always be considered.). The Applicant has, in essence, argued that the Applicant’s long service, clean disciplinary record, the negligible monetary amount involved, that the Applicant showed remorse at the appeal and arbitration and that a lesser sanction had been assigned in a similar instance should be considered when determining an appropriate sanction.
The Applicant referred to the Labour Appeal Court judgments in Shoprite Checkers v CCMA & others (2008) 12 BLLR 1211 (LAC) and Shoprite Checkers v CCMA & others (2008) 9 BLLR 838 (LAC) and argued that the Applicant’s long service and clean disciplinary record should be considered and that in this regard the sanction of dismissal should be considered to be too harsh. I agree that long service and a clean disciplinary record are factors which weigh heavily in the Applicant’s favour. I nonetheless concur with the Court in Woolworths (Pty) Ltd v CCMA & others that “The fact that an employee has had a long and faithful service with the employer thus far is indeed an important and persuasive factor against a decision to dismiss the employee for misconduct, but is by no means a decisive one. In Toyota South Africa Motors (Pty) Ltd v Radebe and Others, this Court held
“Although a long period of service of an employee will usually be a mitigating factor where such an employee is guilty of misconduct, the point must be made that there are certain acts of misconduct which are of such a serious nature that no length of service can save an employee who is guilty of them from dismissal. To my mind one such clear act of misconduct is gross dishonesty.” Woolworths (Pty) Ltd v CCMA & others (2011) ZALAC 15; JA 30/10(26 July 2011). The question is whether there is sufficient evidence to show a breakdown in the trust relationship and whether the mitigating circumstances presented by the Applicant are sufficient to result in a sanction less than dismissal (See Shoprite Checkers v CCMA & others (2008) 9 BLLR 838 (LAC).
The Applicant submitted that the monetary amount involved, R900, should also be a factor to be considered. I do not agree as it is not the amount or the value which should be considered, but the act or conduct itself. In this regard I agree with the Presiding Officer’s remark that “Parents expect their school fees to be paid into the school coffers to advance their children’s education” (See page 11 of Presiding Officer’s report). It is not the relatively small amount of money appropriated by the Applicant that is at issue but the fact that the Applicant collected the money without the necessary authority to do so and then dishonestly withheld it. This act is, in my view, aggravated by the fact that the monies were to be used for the education of the children at the school.
With regard to the lesser sanction applied in the case of Mr. Lottering, it appears that Mr. Lottering pleaded guilty at his disciplinary hearing and provided sufficient reasons as to why a lesser sanction would be appropriate in his case (See page 10 of Presiding Officer’s report). In SACCAWU v Irvin & Johnson Ltd (1999) 20 ILJ 2302 (LAC) the Court argued that "In my view too great an emphasis is quite frequently sought to be placed on to the 'principle' of disciplinary consistency, also call the 'parity principle'. …There is really no separate 'principle' involved. Consistency is simply an element of disciplinary fairness Discipline must not be capricious. It is really the perception of bias inherent in selective discipline which makes it unfair. … If, for example, one member of a group of employees who committed a serious offence against the employer is, for improper motives not dismissed, it would not, in my view, necessarily mean that the other miscreants should escape. Fairness is a value judgment. It might or might not in the circumstances be fair to reinstate the other offenders. The point is that consistency is not a rule unto itself.” The Court held further that “Some inconsistency is the price of flexibility, which requires the exercise of discretion in each individual case.” However in Cape Town City Council v Mashitho & others (2000) 21 ILJ 1957 (LAC) the Court expressed the view that this did not mean that “where two employees had committed the same wrong, and there was nothing else to distinguish them, I can see no reason why they ought not generally to be dealt with in the same way,..” (See also SRV Mill Services (Pty) Ltd v CCMA & others (2004) 2 BLLR 184 (LC). It appears that apart from the personal circumstances presented by Mr. Lottering at his disciplinary hearing that the other distinguishing factor was that Mr. Lottering pleaded guilty at his hearing, thereby showing remorse. It is not disputed that the Applicant pleaded not guilty at his disciplinary hearing and did not submit any mitigating circumstances for the Presiding Officer to consider. I am therefore of the view that the sanction applied to Mr. Lottering may be justifiably distinguished from that assigned to the Applicant.
Where an employee commits a serious act of misconduct and in addition fails to acknowledge his or her wrongdoing, the employer would be entitled to conclude that the relationship of trust has irretrievably broken down. With regard to the issue of remorse I am guided by the Court in De Beers Consolidated Mines v CCMA & others (2000) 21 ILJ 1051 (LAC) at 1058 F-G) where the Labour Appeal Court held that "It would in my view be difficult for an employer to re-employ an employee who has shown no remorse. Acknowledgement of wrong-doing is the first step to rehabilitation. In the absence of a recommitment to the employer's workplace values, an employee cannot hope to re-establish the trust which he himself has broken.” In Timothy v Nampak Corrugated Containers (Pty) Ltd & others (Labour Appeal Court case no. DA22/08 dated 17/03/2010, unreported (Jappie A and Revelas AJA) the Court held that “…progressive sanctions were designed to bring an employee back into the fold, so as to ensure by virtue of the particular sanction that faced with the same situation again, an employee would resist the commission of the wrongdoing upon which act the sanction was imposed…Where there is nothing more than an aggressive denial and a perpetuation of dishonesty, it is extremely difficult to justify a progressive sanction, particularly in a case where the dishonesty is as serious as this dispute.” I accept that the Applicant showed remorse at his appeal and at the arbitration. However my difficulty in assessing this factor is the Applicant’s apparent obstructive behavior at his disciplinary hearing and his refusal to accept responsibility for his actions. The Applicant’s show of remorse appears only after the outcome of the disciplinary hearing and his realization that he had been dismissed. In the present circumstances I am not persuaded that the Applicant has shown real remorse for his actions.
In the present instance the Applicant was charged with dishonesty, found guilty and dismissed. In Hulett Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry and Others Molahlehi J held: ‘.. .the presence of dishonesty tilts the scales to an extent that even the strongest mitigating factors, like long service and a clean record of discipline are likely to have minimal impact on the sanction to be imposed. In other words whatever the amount of mitigation, the relationship is unlikely to be restored once dishonesty has been established in particular in a case where the employee shows no remorse  3 BLLR 241 (LC) at para 42. I believe that it is not disputed that the Applicant occupied a position of trust as an Educator and that he was required to act with integrity. I agree with the Respondent’s submission that not only was the Applicant required to set an example for the Learners but that he should be trusted by the community. I concur with the Court in Threewaterskloof Municipality v South African Local Government Bargaining Council (Western Cape) & Others (2010) 31 ILJ 2475 LC) which held that "The general principle that, conduct on the part of the employee which is incompatible with the trust and confidence necessary for the continuation of an employment relationship will entitle the employer to bring it to an end, is a long established one." Having considered the submissions by both parties and the mitigating factors presented by the Applicant I am not persuaded that the mitigating circumstances are sufficient to warrant the imposition of a lesser sanction in this instance.
1) The sanction of dismissal is upheld.
2) There is no order as to costs.
16 December 2011