Case Number: PSES815-17/18
Province: Western Cape
Applicant: Sadtu obo Joseph Muller
Respondent: Department of Education Western Cape
Issue: Unfair Dismissal - Misconduct
Venue: Satelite office of the Western Cape Education department in Swellendam
Award Date: 24 July 2018
Arbitrator: Jacobus Simon Du Plessis
Case Number: PSES815-17/18
Commissioner: Jacobus Simon Du Plessis
Date of Award: 24 July 2018
In the ARBITRATION between
SADTU obo JOSEPH MULLER
WESTERN CAPE EDUCATION DEPARTMENT
Employee’s representative: Mr Jacques Adams
Applicant’s address: Etzonhof
1 High Street
Telephone: 083 634 9207/074 692 8121
E-mail: firstname.lastname@example.org; email@example.com
Employer’s representative: No Appearance (Employee Relations Overberg District Office)
Respondent’s address: Western Cape Education Department
Overberg District Office
Telephone: 028 214 7374
Telefax: 086 210 5238
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing was convened on 16 July 2018 at 9:00 at the Satelite office of the Western Cape Education department in Swellendam to consider the alleged unfair dismissal by the Western Cape Education Department, hereinafter referred to as the “Respondent”, of Mr Joseph Muller; the “Applicant”, on 14 February 2018.
2. The Applicant was present and represented by Mr Jacques Adams, the union official for the South African Democratic Teachers Union (”SADTU), a duly registered trade union. The Respondent was absent from the proceedings despite having been properly notified of the hearing set down date time and venue via an email on 18 June 2018.
3. From the onset I must indicate that at the commencement of the arbitration, I have granted a grace period of an hour for the Respondent to arrive during which numerous telephone calls were also made to the Respondent representative, Mr Deon Achilles but without success. I have also established from Mr Jacques Adams of SADTU that he also met and spoke with Achilles on Saturday 14 July 2018 and in fact reminded him (Achilles) about the arbitration hearing and during which he (Achilles) also agreed to make available certain documentary evidence which Adams requested him to bring to the hearing.
4. In additions to my efforts to have Achilles attended the proceedings, the case management officer of the Education Labour Relations Council, Ms Nkhensani Mabunda have also made some telephone calls to the cellular phone (079 079 4422) of Achilles but without success. When she eventually got hold of him, the arbitration was already in motion after I have ruled to proceed in the absence of the Respondent. I have thus ruled that proper notice was served on the Respondent and that the Respondent was well aware of the scheduled hearing. I have decided to proceed in the absence of the Respondent in terms of section 138 (5) of the Labour Relations Act 66 of 1995 as amended.
5. The Applicant has submitted a bundle of documents into evidence while oral evidence was presented under oath. The proceedings were fully explained to the Applicant and were conducted in Afrikaans. Hand written notes were kept and the proceedings were digitally recorded.
ISSUE TO BE DECIDED
6. I must determine whether the Applicant’s dismissal was procedurally and substantively fair. In the event that I find the dismissal was unfair, I have to determine the appropriate remedy as guided by the Labour Relations Act 66 of 1995 as amended. I must also determine the appropriateness of the sanction.
BACKGROUND TO THE DISPUTE
7. The Applicant is an Educator with 31 years’ of teaching experience. He commenced employment with the Western Cape Education Department; at the BF Oosthuizen Primary School in Barrydale on 1 January 2011 teaching Nature Science for grades 5, 6 and 7; Technology for grades 7, 8 and 9 as well as Social Science for grades 6 and 7. He was dismissed for misconduct on 14 February 2018. At the time of his dismissal he earned R27 322. 75 per month and occupied the position of Head of Department.
8. The Applicant was charged for found guilty of and dismissed for, misconduct in terms of section 17 (1) (a) of the Employment of Educators Act 76 of 1998 (EEA) in that during September 2016 it is alleged that the Applicant has committed fraud by awarding marks to unmarked scripts for Nature Science and Technology Formal Assessment Task (FAT5) for the following Grade 5 and 6 learners:
Grade 5 Learners:
• Jamie-Lee Plaatjies (4 out of 20);
• Shasha-Leigh Braaf (15 out of 20);
• Giovanni Hartnick (13 out of 20)
Grade 6 Learners:
• Andrew Pieterse (15 out of 20);
• Cornwell Benn (15 out of 30);
• Raynold Du Toit (15 out of 30).
9. Alternatively it is alleged that the Applicant has committed misconduct in terms of section 18 (1) (ee) of the EEA by awarding marks to unmarked scripts of the same learners in the same grades for the same subject. The Applicant denies the allegations and seeks retrospective reinstatement.
THE APPLICANT’S CASE
10. The Applicant under oath explains how the writing of examinations and assessments work. He said the drawn-up assignments together with the work book of the learners are moderated and approved by both Head of Department and School Principal upon which the assignments are assessed and marked for which points are being awarded. Once this process is completed, the points are recorded onto the teacher’s informal class lists, and punched into the schedules into the computer and finally recorded onto the WCED Official Record Sheet as a final mark and finally recorded onto the Assessment Reports that are issued to learners at the end of the school term. As a practice only 3 to 5 scripts are moderated and the teacher’s memorandum with the assignment scripts are being handed in to see whether the points has been correctly awarded.
11. The Applicant presented into evidence the marked as well as unmarked assignment scripts for the Third Quarter of the 2016 academic year for the subjects Nature Science for grade 5 and Technology Formal Assessment Tasks (FAT5) for grade 6 (pages 4-13 in the Applicant’s bundle of documents). He also presented both the class lists the official WCED Official Record Sheets in question (pages 47-54) that are used by teachers to carry over the final marks that eventually reflect on the learner’s Reports. The ‘Class Lists” is described as the informal document teachers used to informally, manually recorded the results of marked assignments for the particular subjects for which an assessment was completed. It contains the name, academic qualification, marks and points awarded. This document is moderated by the Head of Department, Mr Ynolian Pietersen before the final marks are done. The WCED Official Record Sheets is the final official document on which the final results are recorded and the only documents from which the final marks are recorded onto the assessment reports.
12. He refers to page 3 in the bundle; the marked assignments for Nature Science and Technology for the Third Quarter; the Formal Assessments Assignment (FAT5) of Raynold Du Toit in which assignment he was awarded 15 out of 30 points. Page 49 in the bundle contains the class list that correspond with the marked assignment, and the learner that appear at number five in the list, has been given the same marks and assignment points; 15 out of 30. The Applicant confirms there are two assignment scripts for Raynold Du Toit; a marked as well as an unmarked assignment with exactly the same points awarded that also reflect in the class list and official record sheets. The unmarked assignment only contains the points 15 out of 30.
13. He testified that the subject advisor, Mr Ryk Van Romburg has visited the school on 17 October 2016 (during the fourth quarter of the year). When Van Romburg visited the school the Applicant was on sick leave when the unmarked assignment scripts were discovered in the cupboard. He said the unmarked assignment scripts was in the cupboard because the original scripts were handed to the learners to have their parents input and feedback after which the assignments should be brought back to the school. This being done, he struggled to have the learners return the assignment scripts and up to this point having them to bring back the scripts had been unsuccessful.
14. While waiting for the assignments to be brought back, they were approaching ‘December 2016’ holiday season that was due to start in the following week and with the children being in the holiday mood, it was difficult to get them to bring the assignments back to the school. By that time the points were already recorded into the WCED official Record Sheet and signed off and approved by the principal. They were also approaching the Promotion and Progression process and all assessment assignments were supposed to be included into the learners’ profiles.
15. Having realized that the assignments scripts for the learners in question were still outstanding, as a last resort he decided to issue blank assignments to be inserted into the learner’s profiles as proof that the assignments were done by these learners. He could not mark the assignment scripts because having them to redo the assignment would yield different results. Having found the assignment scripts in the cupboard in the Applicant’s absence, Van Romburg proceeded to discuss the matter with the Principal and formal charges were brought against the Applicant. He confirmed that the learners has redone the assignment but he decided not to mark the assignment but only write in the points awarded to correspond with the supporting documents. However, the assignments were not filed into the learners’ profiles.
16. The Applicant testified further that he was never called in by the principal or the Head of Department to explain the unmarked assignment scripts which were discovered in the cupboard. He was charged for dishonesty which he vehemently deny arguing that the circumstances justifies having the unmarked scripts. The chairperson of the disciplinary enquiry failed to compare the points on the assignment scripts with the informal class list; the schedules on the computer and WCED official Record Sheet. He is of the view that the points corresponds with the other supporting documents.
17. Upon his return to school he was informed by the Principal about the intended disciplinary action against the Applicant but the Applicant would be officially notified once Van Romburg’s report is made available. He maintains that the points awarded were correctly awarded for the assignments and his conscience was clear. The Applicant testified that the points awarded are according to the learner’s abilities. Van Romburg’s role is to provide the necessary support and assistance in the subject area. He expected Van Romburg to have called him in to discuss the matter of which he would have provided an explanation but he was never afforded this opportunity. He was however given an opportunity at the disciplinary hearing to state his side of the story.
18. The Applicant said after he received the charge sheet, he had a discussion with Ynolian Pietersen about the matter and the fact that Pietersen as Head of Department has moderated the assignments and also approved it before the Principal did the final moderation. He also confirmed the signatures on the scripts were Pietersen’s as proof that the work was moderated and approved by him on 13 September 2016. The WCED Official Record Sheets were signed off by the Principal. The Applicant testified further that the circuit manager also assess and control whether the learners’ comply with the requirements to be promoted to the next grade. He said that the teaching department also has a system in terms of which the circuit manager would check whether the target was met. He explained as follows: The Applicant makes an example that if the passing target was set at 75% but only 60% passed, the circuit manager would enquire about the missing 15% and they are instructed to try and find the remaining 15% in order to reach the set target. He was also not sure whether the fraud charges were brought to the intention of the circuit manager because there was no discussion between him and the circuit manager.
19. The Applicant testified that he was treated unfairly and the situation has negatively impact his personal and professional life and his wife and children struggles to come to terms with his dismissal. He is the sole bread winner and has children that are financially dependent on him. He seeks retrospective reinstatement if the dismissal is found to be unfair.
ANALYSIS OF EVIDENCE AND ARGUMENT
20. The dismissal is not in dispute. Both oral and documentary evidence proves the dismissal. I am therefore satisfied that the Applicant has discharged the onus of proving the dismissal. The Respondent is now required to prove the fairness of the dismissal.
21. The procedural fairness of the dismissal is not in dispute. I am required to determine the substantive fairness of the dismissal. The evidence shows that the Applicant was charged for misconduct in contravention of section 17 (1) (a) of the Employment of Educators Act 76 of 1998; alternatively he was found to be in contravention of section 18 (1) (ee) of the same act.
22. Section 17 (1) (a) of the Act states that “An educator must be dismissed if he or she is found guilty of:
(a) Theft, bribery, fraud or an act of corruption in regard to examinations of promotional reports”.
23. Section 18 (1) (ee) of the Act states that “Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she commits an act of dishonesty”.
24. It is alleged that the Applicant has committed fraud which is also defined as an act of dishonesty. In order for me to come to a particular conclusion I am of the considered view that one must define the term ‘fraud’. Fraud according to the Google Dictionary, is defined as a “wrongful or criminal deception intended to result in financial or personal gain”. I must therefore determine whether there are elements of ‘intended deception’ and ‘personal gain’ as well as whether the act falls within the legal meaning of a ‘wrongful act’. The legal definition according to the Legal Dictionary defines fraud as “a false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of what should have been disclosed, that deceives and is intended to deceive another so that the individual will act upon it to his or her legal injury”.
25. Having established the legal definition of ‘fraud’ I am mindful of the Labour Appeal Court decision in the recent matter of Belinda Nel v Construction Education and Training Authority & Others (PA3/17)  ZALAC 16 (10 July 2018), in which it was held “that in misconduct hearings the presiding is not required to satisfy the criminal law requirements of any wrong doing”. All that is required is “to establish whether the employee committed misconduct and whether the misconduct was one of dishonest conduct complained of or is it something else as well as the seriousness of the misconduct”.
26. The Applicant conceded to the unmarked assignment scripts that were discovered in his cupboard. He also conceded that the scripts had points written in by him even though the assignment scripts were unmarked. This was done as a last resort to have the learner’s profiles completed for the purpose of Promotion and Progression and also as proof that the assignments were done and completed by the learners. Marks can only be awarded to assignments once it was assessed and marked.
27. This is a standard rule which also forms amongst others, the core and or basic function of the teacher. I am required to establish whether the Applicant has committed misconduct. I have no doubt that with 31 years of experience and being a Head of Department himself, the Applicant was well aware of the rules in particular relating to examination scripts or promotional reports. He could eloquently elaborate on processes and procedures in as far as the assessments and record keeping are concerned.
28. I reject the evidence concerning the Head of Department, Mr Pietersen and the Principal who was responsible for moderating the work and have it approved. I say this because the Applicant’s own evidence is that when this is done, as a practice, they only use three or five assignment scripts, and there is no evidence before me to suggest that these three or five scripts is chosen in any particular sequence or order. Having said that, it is possible that the teacher could present only the work that is acceptable or of a particular standard which would ensure the progress of the learner as long as they are within the set targets.
29. There is no evidence to suggest that the Applicant was not aware of the rule pertaining to examination fraud. The Applicant in my view is guilty of misconduct in that he did not deny having the unmarked scripts in his cupboard with the intention of including it in the learners’ profiles. This part of his action boils directly to dishonesty in that the evidence clearly show that the Applicant intended to deceive his superiors and he was prepare to mislead them. Having said that, one is of the view that by him intending to include the unmarked assignments in the learner’s profiles was in fact an intention to mislead the superiors and therefore in contrast with the trust relationship which goes to the heart of the employment relationship. This being said, I could not find evidence that the Applicant has unduly benefitted from this wrongful actions either directly or indirectly. However, the teacher would have been regarded as having done his work with diligence and integrity when in fact it was not the case.
30. Furthermore, I am also of the view that the Applicant should have employed more alternative methods to have the assignments brought back to the school. Especially when he realized that the learners was in a holiday mood. Barrydale is a relatively small town where everybody knows each other, and as an alternative method one would think that the Applicant should have make an effort to go to those households in person especially since the parents were required to make an input and give feedback to the teacher about what they observed having scrutinized or perused the learner’s work. I doubt whether an uneducated parent would have make valuable inputs and give valuable feedback without the necessary guidance from the teacher. This must be part of the reasons for having the parent meetings so that parents and teacher have an opportunity to interact with one another concerning their children’s performance. I therefore do not agree with the argument that the learner’s has failed to bring back the assignments. It seems as though the assignments was not to leave the school premises to say the least. The teacher, being the ultimate responsible person should be the overall accountable official to ensure that the learner profiles are completed and ready for the Promotion and Progression process.
31. Having heard and considered the evidence in total, I find the dismissal to be substantively fair. I am also required to determine whether the sanction of dismissal was appropriate under the circumstances. It is trite law that in order to dismiss an employee, there must be an existing workplace rule, the rule must be known and consistently applied and the rule must have been contravened. It is evident from the evidence that such rule was in place and I have also considered that the Respondent has establish the rule for obvious reasons; amongst others, to have the learner legally earn the promotion. Furthermore, trust is an integral part of the employment relationship and if the trust is broken especially as a result of dishonesty, it is safe to conclude that there can be no employment relationship without trust. Having considered the evidence, I find that dismissal under the circumstances was an appropriate sanction.
32. In the premise therefore, I make the following award:
33. The dismissal of the Applicant, Joseph Muller by the Respondent, Western Cape Education Department (WCED) was procedurally and substantively fair.
34. The Applicant’s application for relief is dismissed.
35. There is no order as to costs.
Commissioner: Jacobus Simon Du Plessis