PSES 288-13/14 FS
PSES 288-13/14 FS
Award Date:
10 December 2013
Case Number: PSES 288-13/14 FS
Province: Free State
Applicant: SADTU obo ME Mohlabai
Respondent: Department of Education: Free State
Issue: Unfair Dismissal - Misconduct
Venue: Bloemfontein
Award Date: 10 December 2013
Arbitrator: Jerome Mthembu
IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT BLOEMFONTEIN
Commissioner: Jerome Mthembu
Case no: PSES 288-13/14 F
Date: 10 December 2013
In the matter between:
Applicant: SADTU obo M E MOHLABAI
and
Respondent: DEPARTMENT OF EDUCATION
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION:
1. The hearing was held on 12 November 2013. Mr Seonya a SADTU official represented the Applicant, and Mr M E Mohlabai and Mr Maloka the Respondent.
2. The parties did not present oral evidence but filed Heads of Argument as follows:
The Applicant on 22 November 2013;
The Respondent answered on 29 November 2013;
The Applicant was to reply on 6 December 2013, but did not do so.
THE ISSUE TO BE DECIDED:
3. Whether the Respondent was consistent in its application of the rule or standard regarding fraud and or dishonesty when it dismissed the Applicant for a transgression thereof.
BACKGROUND TO THE ISSUE:
4. The Applicant and one Ms Ntlalapa were charged for submitting fraudulent certificates.
5. Ms Ntlalapa pleaded guilty and received a sanction of suspension for 3 (three) months.
6. It is common cause that the Applicant pleaded not guilty to the charge, was found guilty and dismissed.
7. Pursuant to the Applicant’s submission of the fraudulent certificate his salary was adjusted and changed from R125 525.00 to R162 356.00 between January 2012 to June 2012. He therefore benefitted financially.
8. The Respondent had also argued that the trust relationship had irretrievably broken down between the Applicant and itself.
SURVEY OF THE ARGUMENT:
APPLICANT’S CASE:
The following argument was presented on Applicant’s behalf:
9. It was submitted that the representative of the Applicant ill advised him to plead not guilty during the disciplinary hearing. However, the Applicant was now in these proceedings amending her Plea to one of guilty.
TRUST RELATIONSHIP:
10. It was argued that in EDCON LTD v PILLEMER N.O. & OTHERS [2009] ZASCA 135; [2010] 1 BLLR 1 ZASCA; [2009] 30 ILJ (SCA), the Employee purposefully concealed damage to a company vehicle. Initially she denied that it was involved in a collision and that it was her son who was driving it.
11. In considering the fact that the arbitrator found that the company had not placed sufficient evidence to prove that the trust relationship between the Employee and the company was destroyed, the arbitrator went on to consider the Employee’s years of service, clean disciplinary record and concluded that the trust relationship was not broken and reinstated the Employee. The Supreme Court of Appeal upheld the arbitrator’s decision.
EMPLOYMENT OF EDUCATORS ACT 76 OF 1998:
12. Schedule 2(2)(a) and (b) enunciates that:-
(a) Discipline is a corrective and not a punitive measure;
(b) Discipline must be applied in a prompt fair, consistent and just manner.
13. It was submitted that the Respondent could have opted for any sanction short of dismissal which would have had a rehabilatory effect.
CODE OF GOOD PRACTICE SCHEDULE 8 LRA:
14. Item 7(b)(iii) provides that the rule or standard has been consistently applied by the Employer.
15. It is on this basis that it was argued that there was inconsistent application of the rule.
DOUBLE JEOPARDY:
16. It was argued that the Applicant suffered double jeopardy in that once the fraudulent certificate was discovered, her salary was accordingly downgraded.
17. The Applicant argued that dismissal should be substituted with a sanction short of dismissal.
RESPONDENT’S CASE:
The Respondent submitted the following arguments:-
18. It was expected of the Applicant to show similarities on the merits or any material aspects of the case that would comparatively be the same, but failed to do so.
19. In CITY OF CAPE TOWN v SOUTH AFRICAN LOCAL GOVERNMENT C490/2009 (LAC) Judge Basson, had this to say:-
“In coming to a conclusion that the dishonesty was gross the Court took into account that the Employee had shown no remorse for his misconduct and that he had persisted in lying to his Employer in the legal proceedings that followed.”
20. It was submitted that the Applicant’s dishonesty was made gross by her denial even during the proceedings and this presented her as not seeing the wrong of her actions.
21. The circumstances of the two cases have therefore not been shown to be the same by the Applicant.
22. In WESTONARIA v SOUTH AFRICAN LOCAL BARGAINING COUNCIL & OTHERS [2009] ZALC 118; [2010] 3 BLLRC (LC), Judge Molahlehi observed that:-
“It would in my view be unfair for this Court to expect the Applicant to take back the Employee when she has persisted with her denials and has not shown any remorse. An acknowledgment of wrongdoing on the part of the Employee would have gone a long way in indicating the potential and possibility of rehabilitation including an assurance that similar misconduct would not be repeated in the future.
See in this regardDE BEERS CONSOLIDATED MINES LTD v CCMA & OTHERS (2000) 21 ILJ 1051 (LAC).”
23. In the EDCON-case the Court held inter alia that not all dishonesty cases warrant dismissal, trust is considered to be an important element in the continued employment relationship, for a dismissal a break in trust must be proven. This has been done in casu by the Respondent based on the Applicant’s persisted denial of the miconduct.
ANALYSIS OF THE ARGUMENT:
24. For consistency to avail as a defence, the sanction should not infringe the parity-principle. This means that the offences should not be materially different.
SAMSON v CCMA & OTHERS [2009] 11 BLLR 1119 (LC)
25. In casu what makes the two offences to be materially different is that from the outset Ntlalapa admitted her wrongdoing by pleading guilty and showed remorse whereas the Applicant maintained his innocence throughout by pleading not guilty, whereas he knew that he was guilty of the offence and thereby showed no remorse.
SEE: THE WESTONARIA-CASE ABOVE
26. As stated in the judgment of Judge Basson above, in the CITY OF CAPE TOWN-case, “…the Court took into account that the Employee had shown no remorse… and that he had persisted in lying to the Employer…”
27. Similarly, in casu the Applicant persisted with his lies and had shown no remorse.
28. The above factors are distinguishable hallmarks of the two cases.
29. I submit that in line with the EDCON-case above, the Respondent proved that the trust between the Applicant and itself was indeed broken.
30. How could the Respondent be expected to take back an Employee who steadfastly denied her dishonesty when all the evidence proved otherwise. I submit that it would be unfair to expect the Respondent to take back such an Employee. To make matters worse, the Applicant now sought to change his plea to one of guilty in these proceedings. This further demonstrates that he is indeed untrustworthy
31. I therefore submit that the Applicant failed to prove any inconsistency or that the Respondent has not applied progressive discipline.
32. The Applicant is accordingly not entitled to any relief.
AWARD:
I make the following award:-
33. The Applicant’s dismissal was substantively fair and his application is dismissed without any order for costs.
____________________________
JEROME MTHEMBU
ELRC PANELLIST
Province: Free State
Applicant: SADTU obo ME Mohlabai
Respondent: Department of Education: Free State
Issue: Unfair Dismissal - Misconduct
Venue: Bloemfontein
Award Date: 10 December 2013
Arbitrator: Jerome Mthembu
IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT BLOEMFONTEIN
Commissioner: Jerome Mthembu
Case no: PSES 288-13/14 F
Date: 10 December 2013
In the matter between:
Applicant: SADTU obo M E MOHLABAI
and
Respondent: DEPARTMENT OF EDUCATION
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION:
1. The hearing was held on 12 November 2013. Mr Seonya a SADTU official represented the Applicant, and Mr M E Mohlabai and Mr Maloka the Respondent.
2. The parties did not present oral evidence but filed Heads of Argument as follows:
The Applicant on 22 November 2013;
The Respondent answered on 29 November 2013;
The Applicant was to reply on 6 December 2013, but did not do so.
THE ISSUE TO BE DECIDED:
3. Whether the Respondent was consistent in its application of the rule or standard regarding fraud and or dishonesty when it dismissed the Applicant for a transgression thereof.
BACKGROUND TO THE ISSUE:
4. The Applicant and one Ms Ntlalapa were charged for submitting fraudulent certificates.
5. Ms Ntlalapa pleaded guilty and received a sanction of suspension for 3 (three) months.
6. It is common cause that the Applicant pleaded not guilty to the charge, was found guilty and dismissed.
7. Pursuant to the Applicant’s submission of the fraudulent certificate his salary was adjusted and changed from R125 525.00 to R162 356.00 between January 2012 to June 2012. He therefore benefitted financially.
8. The Respondent had also argued that the trust relationship had irretrievably broken down between the Applicant and itself.
SURVEY OF THE ARGUMENT:
APPLICANT’S CASE:
The following argument was presented on Applicant’s behalf:
9. It was submitted that the representative of the Applicant ill advised him to plead not guilty during the disciplinary hearing. However, the Applicant was now in these proceedings amending her Plea to one of guilty.
TRUST RELATIONSHIP:
10. It was argued that in EDCON LTD v PILLEMER N.O. & OTHERS [2009] ZASCA 135; [2010] 1 BLLR 1 ZASCA; [2009] 30 ILJ (SCA), the Employee purposefully concealed damage to a company vehicle. Initially she denied that it was involved in a collision and that it was her son who was driving it.
11. In considering the fact that the arbitrator found that the company had not placed sufficient evidence to prove that the trust relationship between the Employee and the company was destroyed, the arbitrator went on to consider the Employee’s years of service, clean disciplinary record and concluded that the trust relationship was not broken and reinstated the Employee. The Supreme Court of Appeal upheld the arbitrator’s decision.
EMPLOYMENT OF EDUCATORS ACT 76 OF 1998:
12. Schedule 2(2)(a) and (b) enunciates that:-
(a) Discipline is a corrective and not a punitive measure;
(b) Discipline must be applied in a prompt fair, consistent and just manner.
13. It was submitted that the Respondent could have opted for any sanction short of dismissal which would have had a rehabilatory effect.
CODE OF GOOD PRACTICE SCHEDULE 8 LRA:
14. Item 7(b)(iii) provides that the rule or standard has been consistently applied by the Employer.
15. It is on this basis that it was argued that there was inconsistent application of the rule.
DOUBLE JEOPARDY:
16. It was argued that the Applicant suffered double jeopardy in that once the fraudulent certificate was discovered, her salary was accordingly downgraded.
17. The Applicant argued that dismissal should be substituted with a sanction short of dismissal.
RESPONDENT’S CASE:
The Respondent submitted the following arguments:-
18. It was expected of the Applicant to show similarities on the merits or any material aspects of the case that would comparatively be the same, but failed to do so.
19. In CITY OF CAPE TOWN v SOUTH AFRICAN LOCAL GOVERNMENT C490/2009 (LAC) Judge Basson, had this to say:-
“In coming to a conclusion that the dishonesty was gross the Court took into account that the Employee had shown no remorse for his misconduct and that he had persisted in lying to his Employer in the legal proceedings that followed.”
20. It was submitted that the Applicant’s dishonesty was made gross by her denial even during the proceedings and this presented her as not seeing the wrong of her actions.
21. The circumstances of the two cases have therefore not been shown to be the same by the Applicant.
22. In WESTONARIA v SOUTH AFRICAN LOCAL BARGAINING COUNCIL & OTHERS [2009] ZALC 118; [2010] 3 BLLRC (LC), Judge Molahlehi observed that:-
“It would in my view be unfair for this Court to expect the Applicant to take back the Employee when she has persisted with her denials and has not shown any remorse. An acknowledgment of wrongdoing on the part of the Employee would have gone a long way in indicating the potential and possibility of rehabilitation including an assurance that similar misconduct would not be repeated in the future.
See in this regardDE BEERS CONSOLIDATED MINES LTD v CCMA & OTHERS (2000) 21 ILJ 1051 (LAC).”
23. In the EDCON-case the Court held inter alia that not all dishonesty cases warrant dismissal, trust is considered to be an important element in the continued employment relationship, for a dismissal a break in trust must be proven. This has been done in casu by the Respondent based on the Applicant’s persisted denial of the miconduct.
ANALYSIS OF THE ARGUMENT:
24. For consistency to avail as a defence, the sanction should not infringe the parity-principle. This means that the offences should not be materially different.
SAMSON v CCMA & OTHERS [2009] 11 BLLR 1119 (LC)
25. In casu what makes the two offences to be materially different is that from the outset Ntlalapa admitted her wrongdoing by pleading guilty and showed remorse whereas the Applicant maintained his innocence throughout by pleading not guilty, whereas he knew that he was guilty of the offence and thereby showed no remorse.
SEE: THE WESTONARIA-CASE ABOVE
26. As stated in the judgment of Judge Basson above, in the CITY OF CAPE TOWN-case, “…the Court took into account that the Employee had shown no remorse… and that he had persisted in lying to the Employer…”
27. Similarly, in casu the Applicant persisted with his lies and had shown no remorse.
28. The above factors are distinguishable hallmarks of the two cases.
29. I submit that in line with the EDCON-case above, the Respondent proved that the trust between the Applicant and itself was indeed broken.
30. How could the Respondent be expected to take back an Employee who steadfastly denied her dishonesty when all the evidence proved otherwise. I submit that it would be unfair to expect the Respondent to take back such an Employee. To make matters worse, the Applicant now sought to change his plea to one of guilty in these proceedings. This further demonstrates that he is indeed untrustworthy
31. I therefore submit that the Applicant failed to prove any inconsistency or that the Respondent has not applied progressive discipline.
32. The Applicant is accordingly not entitled to any relief.
AWARD:
I make the following award:-
33. The Applicant’s dismissal was substantively fair and his application is dismissed without any order for costs.
____________________________
JEROME MTHEMBU
ELRC PANELLIST