Case Number: PSES 580-13/14NW
Province: North West
Applicant: T D Maleke
Respondent: Department of Education North West
Venue: Potchefstroom in North West
Award Date: 22 February 2015
Arbitrator: Ms N Cawe
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT POTCHESFTROOM
Case No: PSES 580-13/14NW
In the matter between
T D Maleke Applicant
North-West Department of Education Respondent
ARBITRATOR: Ms N Cawe
Details of hearing and representation
The matter was arbitrated on the 16 April 2014, 15 September 2014 and was finalised on the 12 February 2015 at Potchefstroom, North-West Province. The Applicant was represented by Mr W Chisora, an attorney practising in Potchefstroom. The Respondent was represented by Mr P Meje, a labour relations officer thereof.
Background to the issue
Mr Maleke, the Applicant, is an educator at Nkang-Mahlale Secondary School (the school). He is also the teacher component on the School Governing Body (SGB). On 12 June 2012 an SGB meeting was convened at the school. He was invited to attend but was not given the agenda for the meeting. When the meeting was about to commence he was asked to leave the venue. He refused to leave demanding to know why he was being excluded. He was informed that he was to be discussed as part of the agenda. After a heated exchange he finally left.
Mr Maleke was charged with three counts of misconduct namely;-
Charge 1: On or about/during 2012 at or around Nkang-Mahlale Secondary School, Matlosane area office at his workplace he knowingly, wilfully and deliberately committed an act of misconduct contravening section 18(1) (i) when he upon a lawful instruction refused to recuse himself from the SGB meeting thereby failing to carry out a lawful order or instruction without just and reasonable cause.
Charge 2: On or about/during 2012 at or around Nkang-Mahlale Secondary School, Matlosane area office… he knowingly, wilfully and deliberately committed an act of misconduct contravening section 18(1) (t) when he displayed disrespect towards the principal and SGB members thereby undermining the authority by not leaving the meeting when requested to do so.
Charge 3: On or about/during 2012 at or around Nkang-Mahlale Secondary School, Matlosane area office… he knowingly, wilfully and deliberately committed and act of misconduct, contravening section 18(1)(q) in that while on duty he conducted himself in an improper, disgraceful or unacceptable manner when he bad mouthed Mr L S Maleshane to the Grade 12 Geography learners that he did not like him because he (Mr Maleshane) thought he was better, by so-doing you compromised his authority, dignity and respect thereby acting unethical(sic).
At the disciplinary hearing he was found guilty and sentenced to 3 months unpaid suspension. On appeal this was changed to;-
1. Final written warning
2. 1 month suspension without pay
3. Referral to an employee wellness programme
He challenges both the verdict and sanction imposed by the chairperson of the SGB.
Survey of evidence and argument
Evidence and arguments on behalf of the Applicant
The Applicant testified that he is a Level PL1 at the school. His salary is R14 000 per month. In June 2012 he received an invitation from Mr Phuswane to attend an SGB meeting. At the venue the school principal asked him to leave before the meeting started. The principal did not give any reason for this action. When he insisted on the reasons for his exclusion he was informed that there would be a conflict of interest as part of the agenda would be a discussion of the former Matebong Secondary School. Mr Maleke was one of 3 teachers who had been transferred from Matebong when that school ceased to exist. He left the venue but returned after 45 minutes and was physically thrown out of the meeting.
In October that same year he was summoned to a disciplinary hearing. He was found guilty and sanctioned to 3 months suspension without pay. On appeal the sanction was changed. It is the latter sanction that has led to the instant arbitration.
He denies ever bad mouthing Mr Maleshane. He contends that the Department did not follow proper internal procedures in carrying out the disciplinary hearing.
A further contention was that the matter had prescribed by the time the disciplinary hearing was held thus resulting in the chairperson not having jurisdiction to hear same.
The Applicant’s representative argued that the Department had no jurisdiction to discipline the Applicant. Should it be found that such jurisdiction exists the Applicant challenges the substance of the allegations against him as he should have been informed of the duration of the recusal.
A further argument advanced by the representative was that the Applicant should have been charged:-
• under Section 14 of the Employment of Educators Act as opposed to Section 18; and
• under Clauses 6, 8 and 9 of the SGB Code of Conduct.
Applicant did not call any witnesses.
Applicant wants the 1 month salary that was withheld as part of his sanction to be paid to him.
The Respondent’s representative, in his opening statement, stated that the Applicant was not underpaid but that the other educators referred to by the Applicant, were overpaid. That is how the discrepancy in the salaries of the educator’s came about.
The representative then dealt with the non-payment of the notch progression for the Applicant. He pointed out that notch progression is not automatic. The educator submits IQMS forms before he/she is considered for progression. This was in response to the Applicant’s assertion that he was singled out for non-progression, for 2006, whereas his colleagues had benefitted from same.
The Respondent called Ms Malebelo Pooe as its first witness. She was called upon to clarify the discrepancies between the Applicant’s salary notch and those of Mr Matladi, Mr Molekane and Mr Khumalo. The witness is the human resources manager of the Kenneth Kaunda district.
Her testimony was briefly that in July 1996 the system changed to salary ranges from notches. In 1995the Applicant was at notch 3889. He was placed at notch 43344 in 1996. This was range 6 in the new terminology. Mr Molekane was at notch 44307 in 1995. He was moved to notch 50868 (range 7) in 1996. Mr Matladi was moved to notch 45852 (range 6) in 1996. For every two years an educator qualifies for a notch adjustment.
Asked why the Applicant received a salary progression in 2005 whereas Mr Molekane and Mr Matladi received theirs in 2006, the witness replied that the instruction came from the National Department of Education. In 2004 the Applicant was on notch 12 and was moved to notch 13 in 2005. Her evidence was that the Applicant was not underpaid as the move to the notches was programmatically done.
She further stated that Mr Matladi and Mr Molekane received pay progression as their IQMS scores were submitted and no scores were received for the Applicant. That resulted in him (the Applicant) not receiving pay progression for that period.
In 2009 Molekane and Matladi received salary adjustments twice and the Applicant received only one adjustment. The witness explained that the former had previously worked for the erstwhile Bophuthatswana government. When Molekane and Matladi were first paid the OSD their Bophuthatswana experience was not taken into consideration. The educators queried this and an adjustment was made.
During cross-examination the witness admitted that Mr Khumalo was overpaid. Mr Matladi was also overpaid by three notches in July 2004.
When cross-examined the witness could not say for certain whether Mr Matladi had actually worked for the Bophuthatswana government. The Applicant’s representative put it to the witness that Matladi had never worked for Bophuthatswana. The witness could not dispute this.
The Respondent’s second witness was Mr Mojadebe E B T. He testified that he was the principal of Metebong Secondary School during the relevant period. His testimony was meant to cast some light on why the Applicant had not been paid the requisite adjustment when his colleagues were in 2006. The witness could not give a direct answer to this but explained how the IQMS scoring is done. I shall not repeat these for the purposes of the instant award. The relevant part of the process is that after the scores have been collated they are put on to a common score sheet and submitted to the District. The witness, in his capacity as principal of the school at the time, satisfied himself that all the educators’ scores were on the sheet. The Applicant’s scores were also captured. The witness could not explain why the Applicant had not been paid the pay progression for that period.
The Respondent called Mr Sebuaseng Lawrence as its third witness. He confirmed that the meeting requested Mr Maleke to leave the venue as the meeting was about him but when they wanted to call him (Maleke) in he had already left. No other meeting was called to discuss Maleke thereafter.
Ms Bodigelo Geneva was called by the Respondent as a witness but was clearly out of her depth explaining what transpired at the meeting on the relevant date, therefore as her testimony did not take the matter further it will not be repeated in the present award.
A further witness called by the Respondent was Ms Leketi Caroline, the principal of Nkang-Mahlale Secondary school. She testified that she was part of the meeting that requested Mr Maleke to leave the meeting as he was part of her (Ms Leketi) complaint. The meeting decided that the Maleke matter should be reported to the Department. She stated further that the School Governing Body does not discipline educators but makes recommendations, in that regard, to the Department.
The Respondent’s final witness was Mr Kola Akanyang Jack who testified that at the time of the incident he was the president of the LRC at the school. He overheard the Applicant speaking to himself about how much he hated Mr Maleshane. He reported the Applicant’s private conversation. He did this as he believed that educators who were at logger heads with each other would not be able to carry out their duties to the school.
Analysis of evidence and argument
The 2 contentions by the Applicant are that the matter had prescribed by the time the disciplinary hearing was held and that the wrong section of the Employment of Educators Act and clauses of the SGB Code of conduct were used. I will deal with the prescription of the matter at the time of the disciplinary hearing. Significantly he was represented at the disciplinary hearing and this was not made an issue. The issue was also not raised at appeal.
Regarding the SGB Code of Conduct clauses, the Applicant’s representative sought to use KwaZulu Natal (KZN) Department of Education’s Code. It was pointed out by Mr Meje, for the Respondent, that the KZN Code did not apply to the North-West Department. This was not rebutted or denied by either the Applicant or his representative. Had he sought to raise an irregularity regarding the SGB’s conduct he should have relied on a relevant Code of Conduct. Nowhere was it indicated that the KZN Code has universal application.
The South African Schools Act84 of 1996 stipulates that;-
‘The Member of the Executive Council has, in terms of the South African Schools Act, 1996 (Act No. 84 of 1996), determine the Code of Conduct for members of governing bodies in the Schedule”
I will, therefore disregard the Applicant’s submission in this regard as every Code is determined by the Member of the Executive Council (MEC) of the relevant Province . This means that it is Province specific. It is also noteworthy that the Applicant’s representative sought to introduce a general SGB Code of Conduct on the 15th September whereas he had concluded his version on the 16thApril 2014. I disallowed this as it is unacceptable in terms of civil procedure. If the representative had not prepared adequately on the day he concluded his version he cannot be allowed to reopen his case on a subsequent date.
As far as the contention concerning the bad mouthing of Mr Maleshane by the Applicant is concerned, the chairperson did not canvass this specifically in his report and/or verdict although it was a specific charge put to the Applicant. In paragraph 23 of his finding he only deals with the ‘bad blood’ between the Applicant and Mr Maleshane. This was not referred to in his final report.
The chairperson, on paragraph 25.3of his findings, encapsulates what led to the verdict and sanction meted out to the Applicant. The paragraph reads:-
25.3 From the evidence of the Employer through her witnesses it is clear that Mr. Maleke for some reasons does/did not cooperate with Ms. Leketi (his principal and representative of the Department on the spot). It is also evident that the questionable behaviour of Mr. Maleke has been going on for some time and is an issue of serious concern to an extent that there was a need to convene a special meeting in order to share challenges/frustrations with the SGB. This effort was also met with resistance by Mr. Maleke in that he refused to give chance to the SGB to discuss his conduct, disrupting the meeting and behaved in an unruly manner refusing to recuse himself from the meeting in terms of clause 14 of Annexure G of the bundle pertaining to recusal of a member. The fact that he was invited to that meeting and therefore reserved that right to refuse to recuse himself holds no water because the clause of recusal is actually meant for people who are invited and a part of the meeting but the clause is applicable in view that the issue to be discussed affects one or some members directly. It would also be unprofessional with a potential of denting images for the school to place names of teachers as an agenda item in the invitation notice because the notice, once circulated, is public information. Therefore there is nothing wrong with whoever convened the meeting not to place an item which may have a negative impact (discuss conducts) by specifying names of people as an agenda item. The absence of the agenda does not give one a right to refuse to recuse himself from a meeting once an explanation is made for why the need for recusal as it was led as evidence in this particular case. It is also funny that Mr. Maleke refused to recuse himself from the meeting of the SGB which, in his testimony, he regards as illegitimate because according to him, the SGB has no constitution or that it failed to submit a constitution to whoever wanted it. SGBs are statutory structures established in terms of Act 84 of 1996 (The South African Schools Act, 1996) and are not legitimized by the presence or absence of drawn Constitutions.
I agree with the sentiments set out in the chairperson’s finding.
An employee who alleges that he or she is the victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities. The employee must prove not only the existence of the labour practice, if it is disputed, but also that it is unfair. (Grogan Dismissal Discrimination and Unfair Labour Practices (August 2005), Juta page 43; Provincial Administration Western Cape (Department Health & Social Services v Bikwani & others (2002) 23ILJ 761 (LC) para 32).
Mere unhappiness or a perception of unfairness does not establish unfair conduct (SAMWU obo Damon v Cape Metropolitan Council (1999) 3 BALR 255 (CCMA); D Toit et al Labour Relations Law (4th ed) 464).
The onus was on the Applicant to prove that he had been treated unfairly by the Respondent. He failed to discharge this onus and merely relied on irrelevant Regulations (i.e KwaZulu Natal Provincial Regulations) and presumptions to make his case. There was no explanation proffered for Mr Maleke’s refusal to leave the meeting that led to his disciplinary hearing and, subsequently, to the present referral.
In the referral the Applicant alleges that, procedurally, the chairperson:-
• proceeded with the disciplinary enquiry despite having been made aware of outstanding information; and
• failed to make a recusal ruling after an application had been made in that regard
• made comments that were not related to the hearing
Substantively the Applicant alleges that the chairperson:-
• did not consider the elements of inconsistency that were brought
to his attention at the hearing; and
• ignored all his evidence that had not been contested
Significantly, he did not canvass the procedural and substantive unfairness of the Respondent’s actions as alleged.
The Applicant’s representative sought to remedy the shoddiness of his version by trying to introduce completely new evidence in his elaborate closing arguments. Arguments and versions are put to the opponent during the arbitration and cannot be introduced through “the back door”, as it were, in closing arguments. The only relevant argument was that the Respondent’s last witness admitted that the Applicant should not have been charged with bad mouthing Mr Maleshane as he, the Applicant, was talking to himself. Even though I agree with this submission, it was not canvassed at the arbitration. The representative only brought it up during the arbitration in order to attack the Respondent’s last witness by calling him a spy for Mr Maleshane. He, the Applicant’s representative, rudely refused to withdraw the spy insult despite being ordered to do so by myself as presiding commissioner. The representative failed to pick up that the presiding officer at the disciplinary hearing made a blanket finding of guilt against the Applicant and, therefore, nothing turns on the Applicant’s soliloquy. Even if this had been canvassed specifically and the Applicant cleared, he would still be guilty of misconduct on the other counts.
In the premises the Applicant’s referral stands to fail.
The referral is dismissed.
Dated at Johannesburg on this the 22nd day of February 2015
Arbitrator: N Cawe………………………..