Case Number: PSES115-16/17GP
Applicant: Gwendoline Gugulethu Kubyana
Respondent: Department of Education Gauteng
Issue: Unfair Labour Practice - Refusal to Re-instate i.t.o an agreement
Venue: Department of Education – Gauteng
Award Date: 20 November 2017
Arbitrator: SIBONGISENI SITHOLE
Case Number: PSES115-16/17GP
Panelist: SIBONGISENI SITHOLE
Date of Award: 20 NOVEMBER 2017
In the ARBITRATION between
GWENDOLINE GUGULETHU KUBYANA
DEPARTMENT OF EDUCATION - GAUTENG
DETAILS OF HEARING AND REPRESENTATION
1. This is the arbitration award in the matter of Ms. Gwendoline Gugulethu Kubyana the applicant/ the employee and Department of Education – Gauteng the respondent / the employer.
2. The matter was heard in the offices of the respondent – Gauteng West District Office at Krugersdorp on various dates from 26 May 2017 and finalised on 27 October 2017.
3. The applicant, Ms. Gwen. Kubyana attended the hearing and Mr. Ashraf Gagat, an attorney represented her. Mr. Mvuleni Tshishiba, Labour Relations officer appeared on behalf of the respondent.
4. The proceedings were electronically recorded. The parties were directed to submit written closing argument on/or before 6 November 2017.
BACKGROUND TO THE DISPUTE
5. The applicant was employed by the respondent as a Head of Department (HOD) at Madiba Comprehensive School since January 1991. Her services were terminated on 25 October 2015.
6. The applicant’s assertion was that her dismissal was procedurally and substantively unfair and sought retrospective reinstatement as relief. The respondent averred that the dismissal was fair and sought dismissal of this matter.
7. Six charges were levelled against the applicant and she was found guilty on the following four charges which are the subject matter of these proceedings:
7.1 It is alleged that on or around 7 November 2013, you demonstrated disrespect towards your school manager and school’s circuit manager in that you refused to hand in workshop keys to them after you were requested to do so.
In view of the above you are thus charged in terms of section 18(1) (t) of the Employment of Educators Act, Act 76 of 1998 as amended.
7.2 It is alleged that on or around 19 October 2013, you unjustifiably prejudiced the administration, discipline or efficiency of Madiba Comprehensive School in that you allowed unauthorized service providers to remove machines from school premises.
In view of the above you are thus charged in terms of section 18(1) (f) of the Employment of Educators Act, Act 76 of 1998 as amended.
7.3 It is alleged that you committed an act of dishonesty in that you sold metal scrap material from the workshop in November 2012 without authorization.
In view of the above you are thus charged in terms of section 18(1) (ee) of the Employment of Educators Act, Act 76 of 1998 as amended.
7.4 It is alleged that on or around 09 December 2012, on 28 September 2013 (during school holidays) and on 19 October 2013 (over the weekend) you refused to obey security regulation in that you allowed access to service providers without permission.
In view of the above you are thus charged in terms of section 18 (1) (y) of the Employment of Educators Act, Act 76 of 1998 as amended.
ISSUE TO BE DECIDED
8. Whether the dismissal of the applicant was procedurally and substantively unfair.
9. Appropriate relief.
THE SUMMARY OF THE RESPONDENT’ CASE
The respondent led testimony through six witnesses and submitted a bundle of documents in substantiation of its case.
10. Ms Nobuhle Letho testified that she was the initiator in this matter; she investigated the allegations and sent the applicant an audit letter to get her side of the story. The applicant did not respond. Charges were drafted and the notice to attend a disciplinary hearing was issued to the applicant. A pre-hearing notice was attached to the disciplinary hearing notice. A pre-hearing is held to prepare for the actual hearing and for the parties to exchange documents and arranging for witnesses and confirmation of the actual hearing date.
11. Upon investigation the principal informed her that he tried to speak to the applicant and no resolution was reached. The IDSO and the Circuit Manager were involved and the applicant informed the Circuit Manager the she can charge her if she wished to do so
12. The applicant refused to hand over the workshop keys. The principal told her that the applicant allowed service providers to remove machines from the school premises without authority; she sold scrap material from the workshop and no invoice was raised. The applicant went to the school at 20H35 in contravention of the School Management Committee (SMT) resolution and school policy. The principal informed her that some of the repairs to the machines could have been carried out by educators but the applicant stated that she had already sourced services of professional service provides.
13. The witness denied that that the allegations were unfounded in that the applicant was given an opportunity to resolve the matter at the school level and at the district level with the involvement of the Circuit Manager and she refused to cooperate.
14. During the prehearing, the applicant did not plead guilty and the pre-hearing notice provides, “In the event you pleading or wanting to plead guilty, it must be stressed that no agreement may be reached in respect of the sanction. Only the presiding officer may determine a sanction in respect of the allegation.”
15. The documents weren’t exchanged during the pre-hearing but 2-3 days before the hearing. The principal led testimony during the hearing over two days. The applicant had no right to legal representation and was represented by a union official. The applicant did not attend the hearing on 19th May 2015. She called her to avail herself and the applicant told her that she will not attend. She had referred the matter to the MEC & HOD and released a press statement. There were occasions the matter was postponed due to the applicant’s absence due to ill health.
16. During cross examination she stated that the notice did not contain the evidence and thus defective in terms of the item 5 of the Disciplinary Code and Procedure for educators. The evidence was introduced during the hearing. The right to legal representation is not stated in the notice. The applicant was charged within a reasonable period.
17. Mr. Petros Rampaku the principal testified that the applicant refused to hand over the workshop keys. As the principal he is the accounting officer of the school and authorised to have access to the school property. He escalated the matter to the Circuit Manager and the applicant persisted with her refusal to hand over the keys. The applicant showed disrespect towards him and the Circuit Manager.
18. The applicant handed the keys only when Mr. Chris Gryffenberg visited that school and they were under the impression that the matter was resolve only to learn that the applicant had changed the locks in the workshop.
19. The school was afforded funds in the Recap project to ensure that the workshop was functioning properly. The applicant allowed service providers to take machinery from the school during the weekend without management and his authorisation. The security officer informed him that there was a truck at the school taking material. The applicant did not report the incident on Monday, he called the applicant on Thursday to enquire and she advised him that she sold scrap metal and stated that she was left with R250. He told her to pay it to at the office. Had he not asked that applicant he would not have received a report as to what transpired on Saturday. He did not give the applicant permission to sell the scrap.
20. The applicant allowed people to work at the workshop at night without informing him. It was discussed at the SMT meeting that no service providers should be allowed at the school at night; during weekends and school holidays.
21. He instructed Mr. Sekhutsonyane to check the machines if he cannot fix them and the applicant refused him to touch the machines and stated that only professionals would touch the machines. The applicant had a meeting with a service provider on 28 Sept 2013 which was during school holidays.
22. The applicant insisted on using an educator from John Or (schools) to repair the machine which was not in line with the policy. During the School Management Team meeting on 23 Oct 2013 he reiterated the instruction he had earlier given that “no work should be done in the school’s workshop during holidays, Saturdays or at night. No movement of machinery parts without the principal’s approval.”
23. Mr Jerry Munyai testified that he is the caretaker at the school. On 9 Dec 2012 scrap metal was removed at the school and he reported the incident to the principal. He was not aware of any security policies. He controlled access to the school. It was common that educators would work after hours and during weekends.
24. Mr. Thabo Sekhutsoanyane an electrical Technology educator testified that principal asked him to check a broken machine in the workshop. The applicant disagreed and told him that it would be better if the machine was checked by a professional. He went to check and could not tell whether he could fix it or not. He reported same to the principal.
25. Ms Manini Xaba testified that she chaired the disciplinary hearing. The hearing was postponed on numerous occasions due to the applicant’s ill-health. The applicant had disagreements with her representative and she changed representatives during the hearing. Legal representation would only be allowed if a matter raised legal issues. The occupational therapist report was not presented to her. The witness denied that she gave the principal an opportunity to correct his evidence. The applicant did not bring the request for documents to her attention nor was the application for legal representation brought to her. She found the applicant guilty on the four charges and dismissal was an appropriate sanction.
26. Ms Nonhlanhla Ntsangase the Circuit Manager testified that she visited the school after the IDSO reported that she tried to intervene in that matter to no avail. She instructed the applicant to hand over the keys and the applicant refused and told her that she can charge her. The principal as the accounting officer had a right to have the keys and access the workshop. The applicant mentioned her concerns regarding theft and she explained that the principal was the one accountable and the workshop belongs to the school. She begged the applicant to hand over the keys to the principal.
27. The applicant wrote her a letter dated 21 November 2013 reiterating that she was not handing over the keys. She undermined her authority and wanted the District Director involved in the matters. She only handed in the keys in the presence of Mr. Chris Gryffenberg. Mr. Chris Gryffenberg stated that he never gave the applicant authority to hold the keys.
SUMMARY OF THE APPLICANT’ CASE
The applicant led her own testimony with one witness, Mr. Roger Mckuur and submitted a bundle of documents in support of her case.
28. The applicant’s testimony was that the notice did not have information on legal representation. The main evidence was not included in that charge and no witness statement were provided. The initiator asked her to plead guilty. The latter also asked her to resign when she submitted the Occupational Therapist report.
29. The applicant denied that she stated that she had released a press statement against the Department. She confirmed that she reported the matter to the MEC and HOD. She was not happy with the conduct of the union official and she complained about them during the hearing. She ended up representing herself. Her request for legal representation was denied and the initial chairperson said she had no discretion to determine the application for legal representation.
30. She gave the occupational therapist report to the initiator. She suffered from anxiety and depression and could not cope with the hearing. She did not attend the hearing on 19 May 2015 due to ill-health and was not at school as per the attendance register. The hearing continued in her absence.
31. She stated that she requested documents from the department via her attorneys and she did not have a response. The department did not timeously charge her. The charges were laid against her after almost two years of the alleged offences.
32. She gave the principal the keys and he made a duplicate and few weeks later the principal requested her to hand over the keys again. She requested for a week to do a stock take and reconcile what was in the workshop as per policy. The principal said the policy does not sit well with him. She handed over the keys and the register to the principal and the principal said he did not want the keys he just wanted to frustrate her.
33. She did not refuse to hand over the keys to the Circuit manager and the principal. Her main aim was to follow procedures of handing over the keys properly in that a stock taking had to be done and the principal sign for the stock and do a spot check of what was in the register. The Circuit Manager refused to sign the register and said she does not take instructions from her and the best thing would be to charge her.
34. She got permission from the principal to sell the scrap metal and she arranged transport to take the scrap metal to the scrap yard. The scrap was taken on Saturday and she gave the receipt and money to the principal on Monday. She paid for the transport and was not reimbursed. The applicant denied that there were discussions regarding movement of machines before the meeting of SMT meeting of 23 October 2013.
35. Mr. Roger Steward Mckuur testified that he was a subject advisor for the technical subjects employed by the Department. The CAPS money was given to the schools to assist workshops with buying and fixing of machinery. The money should have been utilized for that specific purpose. He did the survey at Madiba on how the money was utilized and found out that the some money was deviated. The HOD is responsible for the workshop and the acquisition of quotes for repairs. The applicant’s refusal to hand over the keys was brought to his attention and he advised the applicant to do an inventory of everything in the workshop, get a witness to sign for the stock in order to safeguard herself if anything went missing.
36. He explained to the principal the procedure for handing over of the keys and the principal told him that he does not take instructions from him. The applicant as the HOD was the first accountable person in the workshop. The principal did not adhere to policies when he requested an educator to fix the machine. The school was supposed to use only registered service provides. There is no policy on sale of scrap metal at schools. He authorized the removal of scrap metal as a subject adviser since it was no longer reusable. He advised the applicant to sell it since it was overcrowding the workshop and posed danger to the learners.
ANALYSIS OF EVIDENCE AND ARGUMENT
37. The respondent has the onus to prove on a balance of probabilities that the dismissal of the applicant was procedurally and substantively fair. Section 188 of the Labour Relations Act 66 of 1995 (“the LRA”) provides that a dismissal is unfair if the employer fails to prove that it dismissed the employee for a fair reason; and that it followed a fair procedure in dismissing the employee.
38. The applicant challenged the procedural fairness in this matter on the basis that the notice to attend the hearing did not contain a description of the allegations of misconduct and the main evidence on which the employer would rely on and there was no information that the applicant could be represented by a legal representative. The applicant argued that Item 7(5) of the disciplinary code and procedures for educators provides that if the presiding officer so directs, the employee may be represented by a legal representation. The first presiding officer failed to exercise her discretion was a gross violation of just administrative action.
39. It is common cause that a disciplinary hearing was held prior to the dismissal of the applicant; the applicant was represented by SADTU officials. Prior to the actual disciplinary hearing the parties meet at a pre-hearing meeting, which purpose was to exchange documentation that would be used at the disciplinary hearing, to discuss witnesses and clarify preliminary issues. The applicant further had an opportunity to make the application during the hearing and the chairperson, Ms. Xaba stated that the issue of outstanding documents was not brought to her attention nor did the applicant apply for legal representation. The charges proffered against the applicant were clear and specific and had a clear description of the allegations she was supposed to answer to.
40. There was no evidence presented before me to show that the first presiding officer made a ruling on legal representation. The applicant was thus at liberty when Ms. Xaba chaired the hearing to apply for legal representation and inform the chairperson about the documents she requested and weren’t provided by the respondent. It is evident that legal representation is not an automatic right but an application should be made and the chairperson makes a ruling. The second chairperson was further not bound by the decision of the first chairperson; in fact there is no evidence to suggest that the first chairperson made a ruling.
41. It is evident that the applicant was not happy with the representative and she brought it to the attention of the chairperson and she changed her representative to another union official and ended up representing herself. The applicant could have again used this opportunity to apply for legal representation whereby the chairperson. Further it is not the employer who appoints a union representative for an employee and thus her dissatisfaction with the representatives cannot be attributed to an unfair conduct on the part of the respondent. It is trite law that labour dispute should be dealt with minimum of legal formalities.
42. The applicant stated that she was urged by the initiator to plead guilty and the initiator denied these allegations. It was established that the applicant did not plead guilty to the allegations.
43. The notice for the hearing to be held on 1 & 2 October 2014 was received by the applicant on 17 September 2014 which thus provided her sufficient notice.
44. The applicant argued that the principal testified and the matter was adjourned and on the following siting he was allowed an opportunity to review and amend his evidence. The chairperson, the initiator and the principal denied these allegations.
45. With regards to the delay in charging the applicant, the initial memo relating to the allegation was brought to the applicant’s attention on 4 December 2013 for the allegations of 7 November 2013; 19 October 2013; November 2012; December 2012 and 28 September 2013. The respondent delayed in charging the applicant for the alleged misconduct of 2012.
46. The principal testified that it was never the intention of the respondent to charge the applicant but to correct her behavior. This was supported by the testimony of the Circuit Manager who testified that it was the applicant who said she can charge her if she wished to do so. The version that the Circuit Manager was the one who said she was left with no choice but to charge the applicant was not put to her. It was further belied by the memo from the Circuit Manager sent to the applicant after their meeting whereby she reiterated the instruction that the applicant should hand over the keys. There was no unreasonable delay in relations to the allegations of misconduct that took place in 2013. It was established that the respondent made attempts to correct the applicant’s behavior through the intervention of senior management to no avail.
47. The applicant was thus aware from 4 December 2013 that the respondent was investigating the allegations and signed the notice to attend the hearing on 29 August 2014. The procedural defects did not render the dismissal procedural unfair. The applicant was further afforded an opportunity to appeal which she duly utilised. In Avril Elizabeth Home for the Mentally Handicapped v CCMA and others (2006) 27 ILJ 1644 (LC);  9 BLLR 833 it was held that the employer was merely required to conduct an investigation, give the employee or his representative an opportunity to respond to the allegations after a reasonable period and thereafter to take a decision and give an employee notice thereafter.
48. With regards to substantive fairness, the principal and the circuit Manager testified that the applicant refused to hand in workshop key to them after they requested her to do so. This version was supported with documentary evidence, an internal memo from the District Director’ office was sent to the applicant where she was again requested to hand over key by 22 November 2013 to the principal. The applicant did not hand in the keys. The applicant stated in the email dated 7 November 2013 to Mr. Chris Gryffenberg that she flatly refused to hand in the keys. She further stated in her letter dated 21 November 2013 to the Circuit manager that she request the district director’s involvement and refers, “It is with deep regret that again today I am not handing in the keys.”
49. The applicant stated that she was required to hand over the keys without following the hand over procedures which justified her conduct. This version lacks substance in that the applicant testified that she earlier gave the principal the keys which negate her alleged concern with procedure. No written workshop procedures were submitted during the arbitration hearing.
50. The principal as the accounting officer was accountable and responsible for the school asserts including the workshop. The Circuit Manager senior to the principal raised this request and the applicant insisted in her refusal more than once. The applicant at no stage in her communique to the Circuit Manager and Chris Gryffenberg did she attach the alleged procedures and inventory list.
51. In fact it was the applicant’s witness testimony that he suggested to the applicant the she should have a register and an inventory list before she hands over the keys. It was the principal’s testimony that he required a duplicate of the workshop keys since the applicant was on numerous occasion off sick and the learners could not access the workshop in her absence.
52. It was clear from the testimony of the applicant and communique that she suspected the principal of mismanagement of the workshop funds which was the core reason shed refuse the instruction.
53. The applicant’s testimony and her witness testimony that she was not refusing to hand over the keys was misleading. The applicant stated clearly that she blatantly refused to hand over the keys. The applicant further stated in her email dated 25 November 2013, “ I don’t want to have anything to do with that man” referring to the principal. This is a clear indication of disrespect. The circuit manager stated that she begged the applicant to hand over the keys o and she told her to charge her. I thus find that the applicant demonstrated disrespect towards the principal and the circuit manager and refused to hand the workshop keys.
54. With regards to charge two the applicant confirmed that she allowed service provider to remove machines from the school premises. The applicant stated that she got permission from the principal. The principal denied giving the applicant permission to allow service provides to remove the machines and further stated that it was discussed in the school management team that no machines should be removed from the school. The matter was reiterated at the school management team meeting held on 23 October 2017. There is further no evidence that the service provider that removed the machines was an authorized service provider.
55. With regards to the allegation that the applicant sold scrap metal from the workshop in November 2012 without authorization. The principal denied giving the applicant authorization to sell the scrap metal. Mr. Roger Mckuur testified that he was the one who gave the applicant permission to sell scrap metal. Mr. Roger Mckuur was neither the principal of the school nor a member of the governing body and the applicant in spite of Mr. Mckuur’s advice should have sourced permission from the principal.
56. The principal testified that he heard about the removal of the scrap from the care taker who called him since the removal took place on Saturday. He further stated that the applicant only paid the money to the school on Thursday after he enquired from the applicant about the removal of scrap from the school.
57. The applicant paid over the money to the school as per the receipt on 8 November 2012. The applicant stated that she paid over the money on Monday which version is incorrect in that 8 November 2012 was a Thursday not a Monday.
58. The applicant argued that the principal could have called the scrap dealer and enquired about the value of the scrap. It was the applicant who sold the scrap to the scrap dealer and it was her responsibility to bring the receipt from the dealer to school.
59. The applicant testified that machines were taken for quotations during Saturday 19 October 2013 and she got permission from the principal. The principal denied giving the applicant permission and no supporting evidence was presented by the applicant to substantiate her claim. I find on a balance of probabilities that the respondent had established the onus to prove that the dismissal was substantively and procedurally fair.
60. The applicant’s conducted rendered the relationship between her and the employer intolerable. I thus find on a balance of probabilities that the respondent had a justifiable reasons to dismiss the applicant.
61. The dismissal of the applicant was procedurally and substantively fair.
62. This application is dismissed.
ELRC PANELIST: (SIBONGISENI SITHOLE)