PSES 560-11/12 FS
Award  Date:
11 April 2012
Case Number: PSES 560-11/12 FS
Province: Free State
Applicant: M E Claassens
Respondent: Department of Education, Free State
Issue: Unfair Dismissal - Misconduct
Venue: Reitz
Award Date: 11 April 2012
Arbitrator: RI MacGregor

Case Number: PSES 560-11/12
Panellist: R I Mac Gregor
Date of Hearing: 10th April 2012
Venue: Dept. of Education-Reitz

Applicant: M E Claassens
Telephone: 072 581 0254
Fax No: 058 881 0770

Respondent: Department of Education-Free State
Representative: P T Masihlelo

Telephone: 051 404 4203

Fax No: 086 634 1246

Details of the hearing
1. The matter was heard on the 10th April 2012 at the offices Department of Education-Reitz at 1000.

2. Both Parties agreed that the ELRC has jurisdiction in the matter.

3. The Applicant requested that she be represented by a labour consultant.

4. The Respondent opposed the Application and said that the matter had been dealt with at the pre arbitration where the consultant was allowed on the understanding that he was not going to appear in further processes.

5. The Labour Relations Act makes no provision for the appearance by a consultant as a representative of the parties.

6. The rules of the ELRC do not provide for such persons to represent parties.

7. Representation was denied and the Applicant agreed to continue with the arbitration.

8. The consultant was granted observer status and the Applicant was allowed to consult him during breaks.

9. The matter related to an alleged unfair dismissal for misconduct by the Applicant.

10. The Applicant was charged for the following offences:

· Contravention of S 18(1) (ee) of the Employment of Educators Act No 76 of 1998 (the Act) in that during the period 1st January 2008 and 31st December 2009, at Tweeling School, you committed an act of dishonesty when you embezzled school hostel fees/income totalling R 479075.00 alternatively negligent mismanagement of State finances by not being able to account for a loss of R 479075.00 breaching S 18(1) (b) of the Act.

· Contravention of S 18 (ee) of the Act during the period 1st January 2008 and 31st December 2009, at Tweeling School, you effected payments on various dates to yourself and immediate family members Mr A J Claassens and Ms S Claassens from the school hostel income to which neither were entitled amounting to R 89100.00

· Contravention of S 18 (ee) of the Act during the period 1st January 2008 and 31st December 2009, at Tweeling School, when you purchased books, bedding, stationary, bedding, clothing, a wall clock, and material to the value of R 23396.82 implying it was for or on behalf of the school or the hostel whereas it was not alternatively negligent mismanagement of finances of the State in contravention of S 18 (1) (b) of the Act.

· Contravention of S 18(1) (aa) of the Act in that during 2009 on an unknown date you falsified records or any other documentation when you used or arranged to use the cover page of an audit report of auditors Enslin Frankfort on the unaudited financial statement of 2008, thereby implying that it was a properly audited financial statement of Tweeling School/hostel alternatively contravening S 18(1) (z) by giving false evidence in the execution of your duties.

· Contravention of S 18(1) (aa) of the Act in that you falsified records/receipts by changing the dates on receipts specifically receipts 6010, 6013, 6014, 6015, 6016.

11. The Applicant argued that the charges were not accurate as she was carrying out instructions.

12. The Applicant said that she was treated unfairly as the misconduct had nothing to do with her job as an educator as all the charges related to her duty as a hostel supervisor/mother.

13. She said that she was prepared to leave the hostel position and continue as an educator.

14. The Applicant said that she had not been told of her right to representation but agreed that this right had been explained to her when she received the notice of the disciplinary hearing.

15. The Applicant agreed that she had the right to object to a presiding officer at any time when she felt there was a perception of bias.

16. It was agreed that no procedural issues were in dispute.

17. The Respondent argued that the Applicant had failed to explain any of the charges even when specific meetings were held to elicit her response to the findings.

18. A proper disciplinary was held and the Applicant was given every opportunity to present her case.

19. She was found guilty on all charges and dismissed in accordance with the act.

Issues in dispute
20. Whether the Applicants dismissal was substantially fair.

Review of Evidence and Argument
Mr I S Bam, the school Principal, testified as follows:

21. He said that it became apparent that there were problems in the hostel financial management when the water and lights account proved to have been paid erratically resulting in a backlog which caused the municipality to want to cut off the school water and lights.

22. Mrs Brits, the deputy principal was appointed to investigate the payment history and did so in March 2010.

23. After visits to the different municipal offices a report of the situation was given to Mrs Dikotse, the departmental official in charge of Tweeling School, on the 3rd June 2010 after a meeting with the Governing Body (SGB) on the 1st June 2010.

24. On the 8th June there was an information sharing meeting with the Union, the Applicant and FETSA to try and get some answers to issues highlighted during the investigation. The Applicant was advised not to answer any questions and so the meeting failed to achieve its purpose of trying to resolve the matter informally.

25. The Auditors were instructed to audit the hostel books and this was completed by the 22nd/23rd July 2010.

26. The witness said that while hostel books were not subject to audit by law the school required an annual audit of the books.

27. The SGB met on the 29th July and 20th August 2010 to discuss the findings and on the 28th August the report was presented to the Department.

28. The witness said that he was brought under the impression that there were no problems at the hostel.

29. He said that the amount owing to the Municipality was partially due to meter reading problems but the basic monthly payment had not been done and had thus accumulated to crisis proportions.

30. The witness said that he had signed the cheques for the hostel but the counterfoils were not always filled in.

31. The witness confirmed that he signed all cheques and the SGB would countersign the cheques.

32. The Applicant did not have signing powers.

33. The witness said that all post for the hostel went to the school and was then put in the Hostel pigeon hole for attention of the Applicant.

Ms A Brits, the deputy principal, testified as follows:

34. She was initially asked to investigate the hostel water and lights account of R 69000.00 and concluded that the amount owed was as a result of erratic payment of the account to the municipalities.

35. She then worked with the Auditor and investigated other discrepancies that came to light.

36. The first charge was formulated when the Applicant failed to account for a shortfall in hostel funds. The Applicant could not explain the discrepancy between the funds banked and the number of students admitted to the hostel. Each child admitted to the hostel had to pay R 8000.00 p/a for their accommodations. There was a discrepancy of R 479075.00 if one considered that there were 75 occupants in the hostel.

The Applicant explained that the number of hostel occupants declined over the year and at the end of the year she only had 55 learners resident in the hostel. She pointed out that they planned 100 portions per day to feed the staff and some children who needed food. She also pointed out that that all the children’s fees were paid.

The witness rejected this proposition as the Applicant had failed to quantify her claims and she had not provided the list of persons in the hostel when requested to do so by the SGB. The Applicant said that hostel admissions were done by the school secretary but conceded that she received the payments and was required to bank the monies except those that were paid by EFT.

The Applicant denied that she provided the list of occupants to the auditors. She said that the principal handed the list to the auditors.

37. On charge two the witness said That there were cheques to the value of R 89100.00 made out to the husband and daughter and to the Applicant herself.

The Respondent agreed that Ms S Claassens was contracted to do the laundry at the hostel but additional sums were paid to her for work apparently done but not contracted for. The Applicant explained that the casual workers were hired to clean up before the start of term. She said that Bam was aware of this arrangement.

Monies for vegetables and meat bought in advance apparently for the hostel was paid to the Applicant. She was also paid for monies apparently paid to David, a hostel worker, who was also paid on a monthly basis by the hostel. Monies were also allocated for payment to the Mafube Municipality and there was no trace of such amounts being paid. A cheque for meat and vegetables was drawn on the 30th December 2008 when there was no one in the hostel. The Applicant explained that the money was payment for a sheep slaughtered by her husband and for vegetables grown on their farm supplied during the year. The Applicant said that she simply felt that they did not have to supply things for free.

38. On charge three the witness said that various items were bought as stationary but these items were for the personal use of the Applicant. There was colour cartridges bought that were for use in the Applicants computer. A laminating machine was bought and was used for the Applicants personal documents and was never available to the school. The Applicant explained that the R 1000.00 for the laminator was in return for a cash advance to David.

The Applicant said that she did not ask for stationary from school as the Principal preferred to keep the entities separate. She said that she printed stuff for the hostel on an on-going basis as required by the school. She conceded that she did use the duplicating facilities of the school from time to time.

39. On charge 4 the witness said that the Applicant had substituted an audit report from the appointed auditor to a financial statement completed by Taljaard, who was not an auditor. This was discovered when the auditors were instructed to do an audit for 2008-09 but could not locate the statements for 2007 in their files. The Applicant had the opportunity to explain this but chose not to do so and only supplied the requested documents after the meeting of 1st June 2010.

The Applicant said that she had paid the bookkeeper out of her own pocket for the 2006 audit. The cheque in 2008 for Taljaard was for a later audit.

The witness rejected this explanation as all it did was bring the SGB under a false impression that the books were audited when they had never been audited. The Applicant did not explain her actions at all.

40. With regards to charge 5 the Witness explained the differences in dates on the receipts and drew attention to the discrepancies in the amounts.

41. The Applicant said that she did not go to the bank every day and only put the date on the receipts when she banked the money.

42. She said that she used cash in the safe for emergencies like when meat was not delivered on time or some ingredients were short in a recipe. The Applicant acknowledged that she did not have the invoices for such expenditure.

Mr B J Davel, the auditor, testified as follows:

43. He confirmed that he had been asked to do an audit for 2008-2009 but did not have the audit results for 2007.

44. He said that when the papers were given to him he found that the financial statements were done by Taljaard but the audit report was on his letterhead. He spoke to the Applicant regarding this anomaly and she admitted that she swapped the audit report to prevent it looking suspicious to the SGB.

45. Davel was not sure if his firm did the audit in 2006.

Ms ME Claassens, the Applicant, testified as follows:

46. The witness said that nothing was done which Bam was not aware of. He was always in the loop and signed all the cheques.

47. The witness said that the figures used in the calculation in charge 1 were not accurate as there were never 75 children in the hostel for the full year.

48. She also said the 100 portion provision was not taken into account when the figures were calculated.

The Respondent said that no new evidence was given and the testimony cannot be a serious response to the charge.

49. As far as charge 2 went Bam was aware of the arrangement to hire additional casual staff to prepare the hostel and clean the grounds. She said that none of the expenditures were not for the benefit of the hostel.

50. The stationary that was bought was used in the hostel. She said that when she had a problem she would phone the Principal who would instruct her to solve the problem, which she did to the best of her ability.

51. With regard to the financial statements she had paid for them in cash and had been given the front page to attach to the financial statements.

52. She said that she had been given permission to keep money in the safe until she could bank the money.

53. She said that she had been charged under the wrong act as she was not acting as an educator when the hostel issues were attended to.

54. She was treated unfairly as Bam was the Superintendent and he abandoned her for his own good whereas he should be held responsible with her.

55. She wishes to return to the School an educator.

Respondent’s perspective
56. The Respondent argued that they had on the balance of probabilities proven their case that the Applicant was substantively guilty of the charges put to her.

57. No new evidence was brought by the Applicant to disprove her negligence if not dishonesty in any of the charges.

58. The Applicant had several opportunities to explain herself but has failed to do so.

59. The Applicant was appointed to her post by the Department of Educations where she was informed that she would be subject to the provisions of the Act. There is no doubt that she has been correctly charged and been found to be guilty of such charges.

60. Dismissal is prescribed as an appropriate sanction in these cases.

61. The dismissal should be upheld.

Applicant’s Perspective
62. The Applicant argued that she should not be charged as an educator as she was working in the Hostel.

63. She said that all her actions were directed by Bam and that whatever she did she did in the interest of the hostel and the hostel children.

64. She said that no-one besides her and her husband knew what was happening in the hostel and the allegations are made out of ignorance of her situation.

Analysis of evidence and argument
65. The Applicant was appointed on the 1st September 2001 and was subject to the provisions of the Employment of Educators Act

66. The Applicant was appointed as a hostel supervisor after an application to the Dept. of Education and Culture in 1996.

67. The hostel was not privatised and the Applicant was paid by the Free State Provincial Administration of the Department of Education.

68. The Act in S 3 indicates that it applies in respect of the employment of educators at—(a) public schools;

69. Tweeling School is a public School.

70. I therefore conclude that the Applicant was subject to the provisions of the Act.

71. With regard to the substantive fairness the rules that were purportedly broken were clearly identified.

72. All of these rules are contained in the Act and relate to dishonesty or negligence in some form or another.

73. The great sadness in this matter is that the Applicant believes that she did nothing wrong despite admitting for instance, that she swapped an audit report of one company with that of another to avoid suspicion that the books were not properly audited. This is so basic to what one would least expect from someone in authority and in charge of other peoples money that it simply stuns one into disbelief.

74. The first charge indicates a total lack of task allocation. Admissions were done at the school, payments at the hostel or by EFT and there was no link to determine who had paid and who had not and who was entitled to what. The Applicant explained that the numbers in the hostel were not static yet there was no register to indicate the veracity of this statement nor it seems were numbers considered when spending money. There appears to have been no budget and at one stage the Applicant’s husband was appointed as a signatory with another teacher. This surely cannot be best accounting practice.

75. At best the Applicant was guilty of negligence but the amount involved makes one wonder how the hostel survived with almost 20% of its “budgeted” income unaccounted for.

76. In charge 2 payments are made to the Applicant and her family for meat slaughtered on the farm and vegetables grown by the Claassens’. The Daughter is paid for assignments which have no bearing on her contract to do laundry. At the widest stretch of the imagination one cannot believe that one will not be called to account for such expenditure. There are no invoices for goods delivered or payslips for casuals who were ostensibly the beneficiaries of this money. The Applicant simply says that she made out the cheque for meat and vegetables as they were tired of doing things for nothing for the school.

77. This is clearly an act of dishonesty as the goods or services rendered are not quantified or receipted.

78. The third charge relates to the purchase of stationary and other materials for personal use by the Applicant.

79. The Applicant denies this but explains that R 1000.00 claimed as stationary was actually spent on a laminator as repayment for a cash advance given to David. The mind boggles at such sweet innocence with such wilful intent to hide unprocedural and unauthorised practices.

80. The forth charge shows a particular wilfulness to deceive. A friend and previous employee of the auditing firm, who is not an auditor, is contracted by the Applicant to do the 2007 audit and paid for the service in cash. No record of such payment exists and the person concerned is no longer alive. The Applicant, by her own admission, swaps the Taljaard audit report cover page with the cover page of the appointed auditor, Frankfort Enslin, so as to avert suspicion by the SGB who now believe that the books were properly audited. This act was intended to deceive and is gross dishonesty.

81. The last charge relates to the falsification of receipts. The children have one receipt and the copy in the receipt book bears no resemblance to the original either in date of issue or amounts paid.

82. The Applicant‘s explanation that the dates reflect the date of banking is so incredible that one shudders to think of the monies not receipted but received.

83. I have no hesitation in finding the Applicant guilty as charged.

84. There was no mitigating evidence presented to explain the absolute lack of accounting procedures and as such the applicant had breached the trust relationship to such an extent that the employment relationship can never survive.

85. It would be remiss of me not to comment on the quality of supervision of the hostel supervisor by the hostel superintendent. Each of the cheques was signed by the Superintendent. The argument that these cheques were signed in a hurry or that there was not time to make them out properly is a pathetic excuse that should be rejected. Not even the most rudimentary petty cash procedures were in place to safeguard other people’s money.

86. The school is advised to get the advice for the required systems of control to prevent this scenario from occurring again and the SGB should ensure that these controls are in practice and are strictly adhered to.

87. The case is dismissed and the file ordered closed.

Robin Ian Mac Gregor

11 April 2012
261 West Avenue
8h00 to 16h30 - Monday to Friday
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