PSES 461 – 14/15 FS
PSES 461 – 14/15 FS
Award Date:
7 April 2015
Case Number: PSES 461 – 14/15 FS
Province: Free State
Applicant: SADTU obo P SEHLOHO
Respondent: DEPARTMENT OF EDUCATION FREE STATE
Issue: Unfair Dismissal - Constructive Dismissal
Venue: Department of Education in Welkom
Award Date: 7 April 2015
Arbitrator: COEN HAVENGA
IN THE ELRC ARBITRATION
BETWEEN:
SADTU obo P SEHLOHO “the Applicant”
and
DEPARTMENT OF EDUCATION – FREE STATE “the Respondent”
ARBITRATION AWARD
Case Number: PSES 461 – 14/15 FS
Date of arbitration: 30 January 2015
Final closing arguments received in writing on: 24 March 2015
Date of award: 7 April 2015
COEN HAVENGA
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
1 DETAILS OF HEARING AND REPRESENTATION
The matter was set down for arbitration on 30 January 2015 at the offices of the Free State Department of Education in Welkom. The last response in respect of the written closing arguments were received by me on 24 March 2015, and the written arguments will form part of the record. The Applicant is SADTU obo Ms. P Sehloho, represented by Mr. PF Maloka, a union official. The Respondent is the Free State Department of Education, represented by Mr. MS Maloka.
2 TERMS OF REFERENCE AND ISSUES TO BE DECIDED
The arbitration takes place in terms of the referral of the dispute by the Applicant. The parties held a pre – arbitration meeting, and the minutes will form part of the record.
The parties agreed that the dismissal of the Applicant is not in dispute, as well as the procedural fairness of the dismissal. It is common cause that the Applicant was in the employ of the Respondent as an educator and stationed at Marematlou Secondary School. She was dismissed following a disciplinary hearing held on 16 April 2014. She was charged with two counts of misconduct in terms of the Employment of Educators Act, no. 76 of 1998 (the EEA). The Applicant pleaded not guilty to the 1st and alternative charge and guilty to the 2nd charge. She was found guilty on both charges following a disciplinary hearing held on 16 April 2015, and dismissed. She appealed the outcome, which appeal was dismissed on 3 October 2014.
The parties agreed that the evidence presented at the disciplinary hearing and the record of the proceedings are not in dispute. The following issues were placed in dispute:
SUBSTANTIVE FAIRNESS – the parties agreed that the issues in dispute are whether the evidence presented at the disciplinary hearing justified a finding of guilty in respect the 1st charge, and whether the sanction of dismissal was appropriate.
The outcome that the Applicant seeks in this arbitration hearing is that the sanction of dismissal be replaced with a final written warning and a fine.
The parties also agreed on the following:
a) To empower the arbitrator to determine the substantive fairness of the dismissal;
b) Annexure B of Collective agreement no. 1 of 2006 governs the procedure of the arbitration hearing; and
c) To empower the arbitrator to award an appropriate remedy.
3 PRELIMINARY ISSUES
The parties agreed not to present any evidence but to have the matter adjudicated on written arguments alone. The arguments were submitted and form part of the record and will not be repeated here, except insofar as I summarized and referred to it below. I have studied and considered all the arguments, legal principles, case law and legislation referred to by the parties. Although the parties have been requested to submit the record of the disciplinary hearing as well as other supporting documents as part of their written arguments, it has not been done. I therefore will base my findings on the summary of the disciplinary record provided by both parties in their respective written submissions.
4 ANALYSIS OF EVIDENCE AND ARGUMENT
4.1 SUBSTANTIVE FAIRNESS OF THE DISMISSAL
In considering the substantive fairness of the dismissal of Ms. Sehloho for misconduct, the principles contained in Schedule 2: Disciplinary Code and Procedures for Educators, promulgated in terms of the Employment of Educators Act, no. 76 of 1998 (the EEA), as well as the Code of Good Practice for Dismissals in Schedule 8 of the Labour Relations Act, no. 66 of 1995, provide the following guidelines:
a) Whether or not the accused employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
b) If the rule or standard was contravened, whether or not –
I. The rule was a valid or reasonable rule or standard;
ii. The accused employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
iii. The employer has consistently applied the rule or standard.
iv. Dismissal was an appropriate sanction for the contravention of the rule or standard.
The dismissal of Ms. Sehloho is not in dispute, and the Respondent is therefore required to prove that the Applicant contravened a rule or rules, and that dismissal was an appropriate sanction for the contravention of the rules. The procedural fairness of the dismissal is not in dispute. The standard of proof that is applicable in hearings of this nature is identical to the civil standard – “the employer must prove the case against the employee on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1.
The Applicant was charged with and found guilty (after appeal) on two counts of misconduct in terms of section 17(1)(a) and in terms of section 18(1)(t) respectively. The charges read as follows:
“Charges 1
You have contravened Section 17(1)(a) of the Employment of Educators Act of 1998 in that on the 14th October 2013 while on duty at Marematlou S. School you have committed an act of corruption with regard to the 2013 third term learner’s promotional reports when you made Puleng Phoofolo to pass although she had failed the term.
Alternative charge 1
You have contravened section 18 1 (ee) of the Employment of Educators Act of 1998 in that on the 14th October 2013 while on duty at Marematlou S. School you have committed an act of dishonesty when you made Puleng Phoofolo to pass in the 2013 third term learner’s promotional reports although she had failed the term.
Charge 2
You have contravened Section 18 1(f) of the Employment Educators Act 76 of 1998 in that during the 14th October 2013 while on duty at Marematlou S. School you have unjustifiably prejudice the administration, discipline or efficiency of the school when you handed out promotional reports of 2013 third term to the learners without authority of the Principal or delegated authority.”.
The Applicant pleaded guilty to the second charge and I will therefore only deal with charge 1. The crux of the Applicant’s argument is that her actions of promoting the learner, involved a honest mistake by a person under stress from personal marital problems, and that it did not constitute corruption or dishonesty. The Applicant also argues that the guilty finding was based on inadmissible hearsay evidence because the report card was not presented as evidence at the disciplinary hearing.
I am satisfied, based on the arguments of the parties on a balance of probabilities, that the actions of the Applicant indeed constituted the misconduct she was found guilty of. I cannot accept the version of the Applicant that promoting a learner, even from one term to another, irrespective of whether it was a progress or promotional report, while the learner clearly and obviously did not qualify for such promotion, is a mere human mistake. The evidence shows that there was an improper relationship between her and the learner that would justify the inference to be drawn that it was done deliberately, and that the learner benefited unduly from that action.
I find that it was proven on balance of probabilities that the Applicant committed the misconduct as alleged in charges 1 and 2. There is therefore evidence before me that proves that Ms. Sehloho contravened a rule or standard regulating conduct in, or of relevance to, the workplace
I now turn to the element of the appropriateness of the sanction. The Respondent has argued that dismissal is appropriate taking into account the nature of the transgressions. It is therefore necessary to consider whether dismissal would be an appropriate sanction, and whether a lesser sanction would serve the desired purpose. In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness. The case of Sidumo v Rustenburg Platinum Mines Ltd [2007] 28 ILJ 2405 (CC) dealt with the scope of commissioners powers when deciding whether the sanction of dismissal for proven misconduct is fair. The final decision whether the sanction of dismissal for proven misconduct is appropriate rests with the commissioner. I must therefore as impartial adjudicator consider all relevant circumstances in deciding whether the dismissal of the Applicant was the appropriate sanction initially.
The Code of Good Conduct: Dismissal, states that one of the requirements of a fair dismissal for misconduct is that the dismissal must be an “appropriate” remedy, in the light of the facts of the case.
In an earlier dictum of Conradie JA a similar approach was also followed when the court pronounced that -: “A dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise.”. The courts have accepted that the ultimate justification for employers’ power to impose discipline flows from their right to manage their business effectively. (See De Beers Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC)).
It is well established that the relationship between employer and employee is in essence one of trust and confidence and that, at common law, conduct clearly inconsistent therewith entitles the “innocent” party to cancel the agreement (See Angehrn and Piel v Federal Cold Storage Co Ltd 1908 TS 761 at 777–778.).
The conduct of Ms. Sehloho was dishonest, at the least. The Labour Appeal Court had this to say about the effect of dishonesty by an employee on the employment relationship in Anglo American Farms t/a Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC): “This trust which the employer places in the employee is basic to and forms the substratum of the relationship between them. A breach of this duty goes to the root of the contract of employment and of the relationship between employer and employee.”.
Dismissal is generally justified in all cases of serious dishonesty, not merely those in which employees enrich themselves materially at the expense of their employer – John Grogan, Workplace Law, 10th Edition. Dismissal is an appropriate sanction when the offence involves dishonesty, even in the case of a first-time offender. See Pillay v C G Smith Sugar Ltd (1985) 6 ILJ 530 (IC) at 538 G.
According to John Grogan, Dismissal, 2002, an employer generally would have two reasons for wanting to get rid of a dishonest employee – one is that the employee can no longer be trusted, and the other is the need to send a signal to other employees that dishonesty will not be tolerated. The latter relates to the deterrence theory of punishment.
The employee’s actions were of such a nature that it surely will have a negative impact on the trust relationship. I had due regard to the principles set out in the case of Edcon Ltd v Pillemer NO & others [2010] 1 BLLR 1 (SCA) which underlines the principle that the employer has the burden of proof to show that the trust relationship has broken down irretrievably. The evidence shows that the trust has been broken down irretrievably, and leaves no option for the application of progressive discipline. The labour courts have held that the destruction of the relationship of trust is the ultimate justification for a dismissal. (See Council for Scientific & Industrial Research v Fijen [1996] 6 BLLR 685 (AD); Lahee Park Club v Garrat [1997] 9 BLLR 1137 (LAC)). I cannot accept the Applicant’s argument that she committed a mere human mistake.
Section 17(1) of the EEA in any event states that dismissal is the mandatory sanction for one of the offences the Applicant has been found guilty of. Having considered all the facts before me, including but not limited to, the gravity of the offence, the position of trust the Applicant was employed in, and the years of service of the Applicant I am of the opinion that the sanction of dismissal is fair and appropriate in the circumstances.
4.2 PR0CEDURAL FAIRNESS OF THE DISMISSAL
Section 188 of the Labour Relations Act, 66 of 1995, confirms that procedural fairness is an independent requirement for a fair dismissal. However, the Applicant did not dispute the procedural fairness of her dismissal and I am not required to make a finding in this regard.
5 AWARD
I find that the dismissal of Ms. Sehloho was for a fair reason related to her conduct, and that the dismissal was effected in accordance with a fair procedure. She is not entitled to any relief.
No order is made as to costs.
C0EN HAVENGA
ARBITRATOR
Province: Free State
Applicant: SADTU obo P SEHLOHO
Respondent: DEPARTMENT OF EDUCATION FREE STATE
Issue: Unfair Dismissal - Constructive Dismissal
Venue: Department of Education in Welkom
Award Date: 7 April 2015
Arbitrator: COEN HAVENGA
IN THE ELRC ARBITRATION
BETWEEN:
SADTU obo P SEHLOHO “the Applicant”
and
DEPARTMENT OF EDUCATION – FREE STATE “the Respondent”
ARBITRATION AWARD
Case Number: PSES 461 – 14/15 FS
Date of arbitration: 30 January 2015
Final closing arguments received in writing on: 24 March 2015
Date of award: 7 April 2015
COEN HAVENGA
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
1 DETAILS OF HEARING AND REPRESENTATION
The matter was set down for arbitration on 30 January 2015 at the offices of the Free State Department of Education in Welkom. The last response in respect of the written closing arguments were received by me on 24 March 2015, and the written arguments will form part of the record. The Applicant is SADTU obo Ms. P Sehloho, represented by Mr. PF Maloka, a union official. The Respondent is the Free State Department of Education, represented by Mr. MS Maloka.
2 TERMS OF REFERENCE AND ISSUES TO BE DECIDED
The arbitration takes place in terms of the referral of the dispute by the Applicant. The parties held a pre – arbitration meeting, and the minutes will form part of the record.
The parties agreed that the dismissal of the Applicant is not in dispute, as well as the procedural fairness of the dismissal. It is common cause that the Applicant was in the employ of the Respondent as an educator and stationed at Marematlou Secondary School. She was dismissed following a disciplinary hearing held on 16 April 2014. She was charged with two counts of misconduct in terms of the Employment of Educators Act, no. 76 of 1998 (the EEA). The Applicant pleaded not guilty to the 1st and alternative charge and guilty to the 2nd charge. She was found guilty on both charges following a disciplinary hearing held on 16 April 2015, and dismissed. She appealed the outcome, which appeal was dismissed on 3 October 2014.
The parties agreed that the evidence presented at the disciplinary hearing and the record of the proceedings are not in dispute. The following issues were placed in dispute:
SUBSTANTIVE FAIRNESS – the parties agreed that the issues in dispute are whether the evidence presented at the disciplinary hearing justified a finding of guilty in respect the 1st charge, and whether the sanction of dismissal was appropriate.
The outcome that the Applicant seeks in this arbitration hearing is that the sanction of dismissal be replaced with a final written warning and a fine.
The parties also agreed on the following:
a) To empower the arbitrator to determine the substantive fairness of the dismissal;
b) Annexure B of Collective agreement no. 1 of 2006 governs the procedure of the arbitration hearing; and
c) To empower the arbitrator to award an appropriate remedy.
3 PRELIMINARY ISSUES
The parties agreed not to present any evidence but to have the matter adjudicated on written arguments alone. The arguments were submitted and form part of the record and will not be repeated here, except insofar as I summarized and referred to it below. I have studied and considered all the arguments, legal principles, case law and legislation referred to by the parties. Although the parties have been requested to submit the record of the disciplinary hearing as well as other supporting documents as part of their written arguments, it has not been done. I therefore will base my findings on the summary of the disciplinary record provided by both parties in their respective written submissions.
4 ANALYSIS OF EVIDENCE AND ARGUMENT
4.1 SUBSTANTIVE FAIRNESS OF THE DISMISSAL
In considering the substantive fairness of the dismissal of Ms. Sehloho for misconduct, the principles contained in Schedule 2: Disciplinary Code and Procedures for Educators, promulgated in terms of the Employment of Educators Act, no. 76 of 1998 (the EEA), as well as the Code of Good Practice for Dismissals in Schedule 8 of the Labour Relations Act, no. 66 of 1995, provide the following guidelines:
a) Whether or not the accused employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
b) If the rule or standard was contravened, whether or not –
I. The rule was a valid or reasonable rule or standard;
ii. The accused employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
iii. The employer has consistently applied the rule or standard.
iv. Dismissal was an appropriate sanction for the contravention of the rule or standard.
The dismissal of Ms. Sehloho is not in dispute, and the Respondent is therefore required to prove that the Applicant contravened a rule or rules, and that dismissal was an appropriate sanction for the contravention of the rules. The procedural fairness of the dismissal is not in dispute. The standard of proof that is applicable in hearings of this nature is identical to the civil standard – “the employer must prove the case against the employee on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1.
The Applicant was charged with and found guilty (after appeal) on two counts of misconduct in terms of section 17(1)(a) and in terms of section 18(1)(t) respectively. The charges read as follows:
“Charges 1
You have contravened Section 17(1)(a) of the Employment of Educators Act of 1998 in that on the 14th October 2013 while on duty at Marematlou S. School you have committed an act of corruption with regard to the 2013 third term learner’s promotional reports when you made Puleng Phoofolo to pass although she had failed the term.
Alternative charge 1
You have contravened section 18 1 (ee) of the Employment of Educators Act of 1998 in that on the 14th October 2013 while on duty at Marematlou S. School you have committed an act of dishonesty when you made Puleng Phoofolo to pass in the 2013 third term learner’s promotional reports although she had failed the term.
Charge 2
You have contravened Section 18 1(f) of the Employment Educators Act 76 of 1998 in that during the 14th October 2013 while on duty at Marematlou S. School you have unjustifiably prejudice the administration, discipline or efficiency of the school when you handed out promotional reports of 2013 third term to the learners without authority of the Principal or delegated authority.”.
The Applicant pleaded guilty to the second charge and I will therefore only deal with charge 1. The crux of the Applicant’s argument is that her actions of promoting the learner, involved a honest mistake by a person under stress from personal marital problems, and that it did not constitute corruption or dishonesty. The Applicant also argues that the guilty finding was based on inadmissible hearsay evidence because the report card was not presented as evidence at the disciplinary hearing.
I am satisfied, based on the arguments of the parties on a balance of probabilities, that the actions of the Applicant indeed constituted the misconduct she was found guilty of. I cannot accept the version of the Applicant that promoting a learner, even from one term to another, irrespective of whether it was a progress or promotional report, while the learner clearly and obviously did not qualify for such promotion, is a mere human mistake. The evidence shows that there was an improper relationship between her and the learner that would justify the inference to be drawn that it was done deliberately, and that the learner benefited unduly from that action.
I find that it was proven on balance of probabilities that the Applicant committed the misconduct as alleged in charges 1 and 2. There is therefore evidence before me that proves that Ms. Sehloho contravened a rule or standard regulating conduct in, or of relevance to, the workplace
I now turn to the element of the appropriateness of the sanction. The Respondent has argued that dismissal is appropriate taking into account the nature of the transgressions. It is therefore necessary to consider whether dismissal would be an appropriate sanction, and whether a lesser sanction would serve the desired purpose. In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness. The case of Sidumo v Rustenburg Platinum Mines Ltd [2007] 28 ILJ 2405 (CC) dealt with the scope of commissioners powers when deciding whether the sanction of dismissal for proven misconduct is fair. The final decision whether the sanction of dismissal for proven misconduct is appropriate rests with the commissioner. I must therefore as impartial adjudicator consider all relevant circumstances in deciding whether the dismissal of the Applicant was the appropriate sanction initially.
The Code of Good Conduct: Dismissal, states that one of the requirements of a fair dismissal for misconduct is that the dismissal must be an “appropriate” remedy, in the light of the facts of the case.
In an earlier dictum of Conradie JA a similar approach was also followed when the court pronounced that -: “A dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise.”. The courts have accepted that the ultimate justification for employers’ power to impose discipline flows from their right to manage their business effectively. (See De Beers Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC)).
It is well established that the relationship between employer and employee is in essence one of trust and confidence and that, at common law, conduct clearly inconsistent therewith entitles the “innocent” party to cancel the agreement (See Angehrn and Piel v Federal Cold Storage Co Ltd 1908 TS 761 at 777–778.).
The conduct of Ms. Sehloho was dishonest, at the least. The Labour Appeal Court had this to say about the effect of dishonesty by an employee on the employment relationship in Anglo American Farms t/a Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC): “This trust which the employer places in the employee is basic to and forms the substratum of the relationship between them. A breach of this duty goes to the root of the contract of employment and of the relationship between employer and employee.”.
Dismissal is generally justified in all cases of serious dishonesty, not merely those in which employees enrich themselves materially at the expense of their employer – John Grogan, Workplace Law, 10th Edition. Dismissal is an appropriate sanction when the offence involves dishonesty, even in the case of a first-time offender. See Pillay v C G Smith Sugar Ltd (1985) 6 ILJ 530 (IC) at 538 G.
According to John Grogan, Dismissal, 2002, an employer generally would have two reasons for wanting to get rid of a dishonest employee – one is that the employee can no longer be trusted, and the other is the need to send a signal to other employees that dishonesty will not be tolerated. The latter relates to the deterrence theory of punishment.
The employee’s actions were of such a nature that it surely will have a negative impact on the trust relationship. I had due regard to the principles set out in the case of Edcon Ltd v Pillemer NO & others [2010] 1 BLLR 1 (SCA) which underlines the principle that the employer has the burden of proof to show that the trust relationship has broken down irretrievably. The evidence shows that the trust has been broken down irretrievably, and leaves no option for the application of progressive discipline. The labour courts have held that the destruction of the relationship of trust is the ultimate justification for a dismissal. (See Council for Scientific & Industrial Research v Fijen [1996] 6 BLLR 685 (AD); Lahee Park Club v Garrat [1997] 9 BLLR 1137 (LAC)). I cannot accept the Applicant’s argument that she committed a mere human mistake.
Section 17(1) of the EEA in any event states that dismissal is the mandatory sanction for one of the offences the Applicant has been found guilty of. Having considered all the facts before me, including but not limited to, the gravity of the offence, the position of trust the Applicant was employed in, and the years of service of the Applicant I am of the opinion that the sanction of dismissal is fair and appropriate in the circumstances.
4.2 PR0CEDURAL FAIRNESS OF THE DISMISSAL
Section 188 of the Labour Relations Act, 66 of 1995, confirms that procedural fairness is an independent requirement for a fair dismissal. However, the Applicant did not dispute the procedural fairness of her dismissal and I am not required to make a finding in this regard.
5 AWARD
I find that the dismissal of Ms. Sehloho was for a fair reason related to her conduct, and that the dismissal was effected in accordance with a fair procedure. She is not entitled to any relief.
No order is made as to costs.
C0EN HAVENGA
ARBITRATOR