Case Number: PSES 343-17/18 KZN
Applicant: Y. Kistasamy
Respondent: Department of Education – Kwa-Zulu Natal
Issue: Unfair Dismissal - Misconduct
Venue: District Office, Port Shepstone
Award Date: 16 August 2018
Arbitrator: J.D. Vedan
Arbitrator: J.D. Vedan
Case Reference No.: PSES 343-17/18 KZN
Date of hearing: 16 August 2018
In the arbitration between:
Y. Kistasamy Applicant/Employee party
Department of Education – KwaZulu-Natal Respondent/Employer party
Applicant’s representative: Mr R. B. Donachie
Tel: 031-304 3621
Respondent’s representative: Mr A. Preethpaul
Tel: 083 446 23229
DETAILS OF HEARING AND REPRESENTATION:
1. The matter was held at the Truro House, Durban on 25 January 2018, at Durban Teachers Centre on 16 March 2018, and concluded on 18 July 2018 at the District Office, Port Shepstone.
2. The Applicant was represented by Mr R.B. Donachie, an Attorney.
3. The Respondent was represented by A. Preethpaul, its representative.
BACKGROUND TO THE DISPUTE:
4. The Applicant was employed as a Level 1 Educator since 1990 until the date of his dismissal on 24 July 2017. He was suspended from his duties as a Level 1 Educator at Jai Hind Primary School on or about 2015.
5. The disciplinary enquiry was concluded on 20 October 2016 at Ugu District, Port Shepstone in his absence. He was found guilty, and thereafter dismissed. The charges against the Applicant were as follows:
In that on or about 2015 and at or near the Jai Hind Primary School, you failed to carry out a lawful order and/or a routine instruction in that, you failed to sign the time book on the dates reflected in Annexure A. you did thereby contravene Section 18(1)(i) of the Act.
In that on or about the dates reflected in Annexure B and at or near the Jai Hind Primary School, you allegedly failed to comply with or contravened PSCBC Resolution 1 of 2007 (Leave Policy of the Department), namely, you failed to make an appropriate application for leave prior to proceeding on leave. You did thereby contravene Section 18(1)(a) of the Act.
In that on or about 20 May 2015 and at or near Jai Hind Primary School you unjustifiably prejudiced the administration, discipline and/or efficiency of the School and/or the Department in that you failed to attend a meeting arranged to discuss learners performance with parents. You did thereby contravene Section 18(1)(f) of the Act.
In that on or about May 2015 and at or near Jai Hind Primary School, whilst on duty, you conducted yourself in an improper and/or disgraceful and/or unacceptable manner and/or had in the workplace displayed disrespect towards Mrs Audan, the former Acting Principal in that whilst she addressed some members of the public who visited the School, you stood between members of the public and her and told them “don’t listen to her – go straight to Mr Wood” (Circuit Manager). You did thereby contravene Section 18(1)(q) and/or (t) of the Act.
In that on or about May 2015 and at or near Jai Hind Primary School you unjustifiably prejudiced the administration, discipline and/or efficiency of the School In that you left learners unattended during instruction time. You did thereby contravene Section 18(1)(f) of the Act.
In that on or about 5 May 2015 and at or near Jai Hind Primary School you unjustifiably prejudiced the administration, discipline and/or efficiency of the School in that you initially refused to sign the cheques in respect learners excursions causing Ms S Kavanagh to use her own monies to pay for excursions. You did thereby contravene Section 18(1)(f) of the Act.
In that on or about May 2015 and at or near Jai Hind Primary School, whilst on duty, you conducted yourself in an improper and/or disgraceful and/or unacceptable manner and/or had in the workplace displayed disrespect towards Mr N. Naicker, in that you threatened him with dismissal. You did thereby contravene Section 18(1)(q) and/or (t) of the Act.”
6. The Applicant referred to himself as a Master Teacher.
7. According to the Respondent the charges against the Applicant consisted of some very serious charges. The Respondent contended that the Applicant had been given an opportunity to attend the disciplinary enquiry on many occasions, but did not avail himself on 20 October 2016. He was advised by Mr Preethpaul, the employer’s representative, to come personally to the hearing, or send his representative, to apply for a postponement. The Applicant had requested Mr Preethpaul to consent to a postponement of the matter.
8. The Applicant on the other hand said he had faxed and e-mailed the medical certificate, but despite this the hearing proceeded without his presence. The Applicant had appealed to the MEC for Education, but his appeal was dismissed.
9. The Applicant insinuated that the charges were laid against him as a part of a vendetta against him, as he was the preferred candidate for the position of Principal at the school. The post of Principal was hotly contested. The Acting Principal, Mrs R. Audan, had also applied for the position, as well as other teachers at the school namely, the Deputy Principal, Mr R. Rambaram, Mr S.G. Moodley and Ms K. Pillay.
10. He was a shop steward for the Union at the relevant time and this necessitated him taking time off during the day and applying for leave in the furtherance of his union duties, which was allowed by legislation.
11. With regard to charge 1, he denied refusing to sign the time book, which was kept in the office of the Clerk. This time book is a daily attendance register recording when the teachers arrived at school and when they left school. He claimed that others have also not signed the time book and yet they had not been charged with any form of misconduct. He had no intention not to sign the time book and any failure was due to circumstances and not a deliberate action.
12. With regard to charge 2, the Applicant states that whenever he took leave, even for a few hours a day, he would have filled a leave application form. At no stage was he approached by the Acting Principal, or any official, to say that he had not filled the leave application form. He was never requested to do so. If he did not fill the leave application form, after being requested to do so, he would simply be punished by being put on unpaid leave.
13. With regard to charge 3, he stated that he had informed Mr M.H. Khamissa, his Head of Department, who gave him permission not to be present at the parents meeting. It was common for teachers not to attend the meeting due to circumstances beyond their control, and it was perplexing why he was charged with this.
14. As far as charge 4 was concerned, he merely told the irate and threatening men to go to Mr Wood, the Acting Circuit Manager, in order to protect the Acting Principal.
15. With regard to charge 5, whenever he was not in class, he followed procedure by informing the Head of Department, or making arrangements for another teacher to attend to his class.
16. His defense to charge 6 was that he was cautious about signing the cheque, as there was not adequate substantiation for the expenditure. In any event, he signed the cheque as a member of the School Governing Body, and not in his duties as an Educator. There was another signatory to the cheque, as well, besides himself and the Acting Principal.
17. As to the assertion by Mr N. Naicker that the Applicant was going to have him dismissed, he denied making that statement to Mr Naicker, and denied that this was a form of misconduct.
ISSUE TO BE DECIDED:
18. Whether the dismissal of the Applicant was procedurally and substantively fair?
RESPONDENT’S EVIDENCE AND ARGUMENT:
19. The Respondent called five witnesses. The first witness, Roshini Audan, was a retired Educator from the Jai Hind Primary School, who had been the Acting Principal.
20. She stated that she had brought it to the attention of the Educators, time and again, to sign the attendance register. However the Applicant on a number of occasions failed to sign the attendance register. This was during the period 29 January 2015 to 22 June 2015. He would sign for his incoming time, and then omit to sign when he was outgoing. She wanted these records to be kept in order as an Educator could sign on the next day after omitting to sign on the previous day.
21. She approached the Applicant numerous times, and asked him to update the records.
22. With regards to the Applicant taking leave, he was supposed to fill in a leave form. There was a policy in place as to whether he was applying for full day leave, or leave for part of the day. Each teacher has his own book to note down the leave and also fill in the leave form concurrently. The leave taken for part of the day was accumulated, until it reached seven hours for that category of leave, and then was submitted to the Department.
23. She asserted that the Applicant did not comply with the requirements, and just went on leave without submitting the forms. She spoke to him in the presence of his Supervisor and advised him that this was a serious transgression, and he reported that he would furnish her with the leave forms.
24. She wrote him letters on 8 August 2013, 22 August 2013, and on 7 November 2013 asking him for his leave forms, and threatened that he will be docked for leave without pay.
25. On 21 April 2015, Mr Sibiya, the District Manager for Ugu, wrote the Applicant a letter for the leave forms, and gave him seven days to sign the necessary forms, stating that if he did not comply all leave taken will be granted as leave without pay. Apparently forms were sent to the Department, which were not signed, concerning the Applicant.
26. With regard to charge 3 she testified that it was important for teachers to attend these meetings, and she had received a complaint from a parent, dated 21 May 2015, stating that the Applicant did not make himself available for the meeting where the parent wanted to discuss her child’s work with him. There was another letter from a parent complaining about the Applicant not being present at the meeting, although as an Educator for Maths for Grade 7 his work was very important.
27. As far as charge 4 was concerned, she testified that the Applicant had undermined her in front of the other teachers and the members of the public and this was unacceptable.
28. She stated that the Applicant would just leave his class and come see her in his capacity as a representative of Educators. He was expected to be in his class during teaching time and also not to leave children alone. This was in reference to charge 5.
29. Savi Kavanagh, the Senior Educator at the School, in frustration of not being given the cheque by the Applicant, paid out of her own pocket for the trip, in order for the children to go on the trip. The Applicant had deliberately not signed the cheque.
30. Finally as far as charge 7 was concerned, the Applicant, not having the authority to do so, informed Mr N. Naicker that he was not getting the job. Mr Naicker was an intern teacher appointed by the School Governing Body.
31. Under cross-examination, she said her intention was not to get the Applicant dismissed. She also admitted that there were instances of teachers not signing the register, because they had gone to meetings or forgot to sign.
32. All she wanted was for the Respondent to get the Applicant to comply with the requirements for leave. She wanted an amicable solution with the Respondent.
33. She did not dispute that it was legitimate for the Applicant to ask for supporting documents before signing the cheque.
34. The second witness was Jabu Dumisa, the Chairperson of the disciplinary committee. She related what Mr Preethpaul had informed her regarding the Applicant’s illness and incapacity to attend the hearing. She informed Mr Preethpaul to inform the Applicant to either come to the enquiry or send his representative to make an application for a postponement. Nobody arrived and therefore she proceeded with the matter.
35. The matter had been ongoing for some time and there was even a recusal application when Mr Mabaso was chairing the enquiry.
36. The third witness was Rajen Rambaran, who was the Deputy Principal at the time of the incidents. He is now the Head of Department at Jai Hind Primary School.
37. He witnessed the gathering of men outside Mrs Iyer’s classroom. A disturbed child was screaming and the impression created was that the child was being assaulted by Mrs Iyer, therefore these men came there and were threatening the teacher. The Principal tried to restore order. There were other teachers present. He heard the Applicant say that the men must go to Mr Wood, the Acting Circuit Manager, and not listen to Mrs Audan.
38. He testified that Mrs Audan and the Applicant did not get along and were at logger heads with each other. The Applicant was always challenging the authority of the Acting Principal.
39. He was aware that leave forms were not being filled properly by the Applicant and was a witness to a letter being handed to the Applicant by Mr Sibiya, the District Manager (page 51 of bundle “A”).
40. He confirmed that the Applicant had forwarded a reason for his absence at the parent meeting to Mr Khamissa.
41. He said that there were camps at the school.
42. The next witness was Savi Kavanagh. There was a leadership camp arranged by herself for the learners. Monies were paid by parents and deposited into the school fund. When she required a cheque to pay the deposit, the Applicant delayed in signing the cheque. She then paid out of her own pocket and only received payment from the Applicant towards the end of March.
43. The Applicant had refused to sign the cheque and it got to a stage were the excursion could have been cancelled.
44. The last witness, Niresh Naicker, testified that he had been employed for about two to three weeks only by the School Governing Body to teach at the school. He was paid R150-00 per day and had applied to be appointed by the Department as a Level 1 Educator.
45. The Applicant called him aside and told him that Friday would be his last day at the school and that his services would be terminated. The Applicant told him that Management was supposed to inform him of this.
46. He was surprised about this and complained to the Principal and thereafter wrote a letter to the Principal complaining about what the Applicant had told him as he considered this to be very offensive and out of order. He was advised by the Principal to write the letter of complaint.
APPLICANT’S EVIDENCE AND ARGUMENTS:
47. The Applicant testified that the position of Principal was hotly contested in Jai Hind Primary School. Eventually he was recommended by the School Governing Body to get the post. He was the only one recommended. The Chairperson of the School Governing Body objected to his selection and thereafter the School Governing Body resigned.
48. The Respondent, through the Head of Department, then obtained a panel consisting of the highest ranked officials from across KwaZulu-Natal to conduct interviews and recommend a candidate. Much to the chagrin of Mrs Audan and the other applicants, he was recommended to be the Principal. Mrs Audan was acting in the post at that time as Principal.
49. He always raised matters in a professional manner with regards to time tabling and relief. Eventually he wrote letters to the Department for them to investigate the situation at school and the School Management Team was then partnered with Port Shepstone Senior Primary so that they could be mentored by the Senior Management Team of Port Shepstone Senior Primary.
50. He was the secretary of the local SADTU branch at that time and the branch was responsible for its members in over one hundred school, comprising of over one thousand three hundred teachers.
51. He testified that he was entitled to leave to deal with union matters and utilised the leave from time to time, after properly notifying the Principal. He would normally sign the time book.
52. When he was out on union matters, he would approach his Head of Department, Mr Khamissa, and leave his teaching material for the relief teacher to attend to. He would then approach the teacher in charge of relief, Mr S.G. Moodley and then Mrs Audan. Mrs Audan did not refuse him leave. She did however request proof of the reason for his leave.
53. After he attended the meeting, he would get supporting documents from the SADTU Administrator confirming he had attended to the matter.
54. He was also involved in sports and sports coaching and at times this went on late in the afternoon. The office closed at 14:30 pm and therefore he could not sign the time book.
55. With regard of the signature in the time book, Mrs Audan just spoke to the teachers generally. He was not disciplined for not signing the time book.
56. With regard to the leave, he acknowledged that Mrs Audan spoke to him about providing supporting documents and he said that he had attended to that. After being dismissed, he was called to the offices of the Respondent in order to process his pension payment. A clearance letter was issued to him as he did not owe the Department any monies. If he had not given the leave forms, he would have been penalised by the Department with the days being characterised as unpaid. Not completing leave forms would have been detrimental to him.
57. With regard to not attending the parents meeting, he had informed Mr Khamissa that he would not be available to do so. He cannot recall where he was that evening. The matter was not discussed with him after he returned to school.
58. With regard to the crowd gathering when the child was screaming, the Applicant stated that he made a statement to the crowd to rather go and discuss the matter with Mr Wood as any dispute in the school was referred to Mr Wood. The situation was tense. The only other person who was charged was another teacher, Mrs Mpunzana, for allegedly conducting herself in a disgraceful way.
59. He stated that he followed protocol when leaving the classroom and he never left the learners without speaking to the Head of Department.
60. There were three signatories to the cheque. The Applicant, the Acting Principal and a parent had signing powers. He had to ensure that financial matters at the school were in order as the Department had sent a team to investigate the school’s finances. The school was not issuing receipts at the time when the incident happened with Mrs Kavanagh.
61. The R16 000-00 was collected by Mrs Kavanagh from the learners and the funds were not deposited into the school account initially. It was deposited into a private account so he wanted proper documentation in order to sign the cheque and therefore he did not sign the cheque immediately. He denied receiving any documentation to justify the amount. He wanted to be sure everything was in order before signing the cheque.
62. As far as Mr N. Naicker was concerned, at that stage the Applicant was a secretary of the union. The Applicant told him that he was meeting with Department Officials and would discuss Mr Naicker’s situation with them. The Trade Union Officials gave names to the Department Officials and they negotiated positions for people.
63. His site steward gave Naicker a form to fill so that he could go and engage the District Office on his behalf. Mr Naicker signed the form. He told Mr Naicker that he would raise the matter with Mr Mtshali when he met with him the next week. That was the extent of his discussion with Mr Naicker. He was surprised by Mr Naicker’s assertion thereafter.
64. He did not attend the disciplinary enquiry because he was unwell and he emailed the Presiding Officer and Mr Preethpaul advising them of his situation and attaching his medical certificate.
65. Thereafter, without his appearance, the matter was decided and he was dismissed. His representative did not appear at the hearing, as he had informed him that he was ill and had communicated with the other parties. Even at the plea in mitigation stage, he was not afforded the opportunity to give mitigating evidence.
66. He said that he is fully aware of the Department’s rules and he was also aware that he did not sign the time book at times. The time book was taken away and therefore he did not have the opportunity to sign. At other times, the time book was in Mrs Audan’s office and accessible to him.
67. He claimed that he and Mrs Audan disagreed on a lot of matters. However he challenged this as a Union member in a professional way.
68. He was never charged or disciplined for his behaviour before. The flood of charges came his way in September 2016 although he was suspended in 2015.
69. After he was suspended, the Respondent was very dilatory in charging him. He only received the charge sheet one year and three months after being suspended. He lodged a dispute with the ELRC about his unfair suspension, which was lifted and he was told to report to school.
70. When he reported to school, he was told to go back home and await his charges. He was of the view that the charges were brought against him to destroy his reputation. There was a concerted campaign to get him out of school which resulted in articles about him in the South Coast Herald for over thirty weeks. These articles tarnished his name as a candidate.
71. The Union had assured him that if he sent a letter to the Presiding Officer, and the employer representative, the matter would not go ahead.
ANALYSIS OF EVIDENCE AND ARGUMENTS:
72. The onus was on the Respondent to prove that the dismissal was procedurally and substantively fair on a balance of probabilities.
73. The Applicant had attended the previous meetings and had even made an application for recusal of Mr Mabaso, the Chairperson of the disciplinary enquiry. He had showed every intention of defending the charges against him. It is the “audi alteram partem” rules of natural justice that both sides must be heard before a decision is made.
74. In this case, the Presiding Officer was aware that the Applicant had stated that he was ill. The Applicant stated that he had sent the medical certificate through to both the Presiding Officer and the employer’s representative. It is often the case that documents sent to a party, are not checked by the party receiving it immediately or else it is sent to a line used by other parties and not brought to their attention. Both the employer’s representative and the Presiding Officer were aware that the Applicant had indicated that he could not be present on the basis of illness.
75. The principle of fairness should have followed, and the Presiding Officer should have postponed the case on that particular day to afford the Applicant the chance to present his version. In matters of this nature a strictly legalistic process is not followed. The Presiding Officer wanted the Applicant’s representative to be present to make the application but not necessarily the Applicant. She should have applied her discretion in the matter and granted the postponement as the Applicant’s very future was at stake.
76. It is not as if the Applicant had ignored the hearing. The Applicant made attempts and contacted the employer’s representative and tried to contact the Presiding Officer telephonically, failing which he sent her an e-mail. There was no intention of the Applicant waiving his right to be present. The Union had informed him that there was no need for their representative to attend as well.
77. Furthermore, even at the mitigation stage, the Applicant was not informed that he was to submit mitigating factors on or before 29 November 2016. Even at that stage he was kept in the dark. Neither is there any record of aggravating factors presented to the Presiding Officer. Therefore I find that the dismissal was procedurally unfair.
78. The Applicant was faced with a plethora of charges. With regard to the first charge, a scrutiny of the attendance register/time book shows that other Educators were also not filling in the time book properly. The Educators were informed that they needed to sign the time book. The Applicant was not warned in an individual capacity previously that he had failed to sign the time sheet. Although I find that the Applicant had failed to sign on occasion, he was not the only one who failed to sign the time book, however he is guilty of this offence.
79. With regard to the leave forms, even if the Applicant was not absolutely scrupulous in signing these forms, then the sanction would have been that for those days, for which he had no proof, the Department would not have paid him, but regarded that as leave without pay.
80. A perusal of the documents shows that the Applicant was being chastised for not submitting leave forms in 2013, and he was provided with dates by the Acting Principal in 2013, wherein he had not signed leave forms. Furthermore he had received three letters in 2013 regarding the non-signature of leave forms.
81. In January 2014, the Acting Principal communicated with Mr Sibiya, the District Director, about the lack of compliance of the Applicant regarding supporting documents for leave. Eventually Mr Sibiya wrote up to the Applicant in April 2015 saying that his pay will be docked if he did not sign the forms submitted.
82. Firstly, it is surprising that the matter was held over for so long without the Applicant being charged. It is probably that it was not considered as so serious a misdemeanour at that stage, and any non-compliance could have been met with the Applicant being docked his salary. That would have been punishment to him.
83. With regard to the non-attendance at the parents meeting, I accept that the Applicant informed Mr Khamissa about his non-appearance and Mr Khamissa was never called as a witness by the Respondent to refute this.
84. With regard to the comment made by the Applicant to what could be described as a mob, there is nothing untoward about stating that the Acting Circuit Manager could deal with the situation as he was overall in charge of the school. I accept that the Applicant was diffusing the situation by referring the matter to Mr Wood.
85. The charge about leaving the classroom was not supported clearly. No specific instances and dates were given and nobody testified about this accept Mrs Audan and then again she said the Applicant left the class for Union business. I have nothing to gainsay that he did not get the necessary permission or make the necessary arrangements.
86. As far as the cheque was concerned, the Applicant acted in his position as a School Governing Body member. He is quite correct to be cautious about the signing of the cheque and that the necessary protocols are followed. The third signatory should have been called in if there was a problem. There appears to be no basis for this charge.
87. Finally the comment to Mr Naicker that Friday would be his last day, this was a statement he made in his evidence but in his written complaint he also stated that the Applicant informed him that he was in contact with the Department Officials and will be meeting with them.
88. The statement Mr Naicker says the Applicant made is rather bizarre and even if the statement was made, Mr Naicker should not have paid attention to it as the Applicant was not his employer. Moreover Naicker said he had no interaction with the Applicant prior to this.
89. The statement made is no basis for a charge. It wasn’t saying he would be dismissed and the Applicant has denied making the statement. He could not have been terminated by the Applicant.
90. Even if such an incident had occurred between the parties, the Principal should have met with the parties and discussed the interaction and tried to resolve the problem, if any.
91. It would seem that there was a lot of tension at the school. Further the teaching fraternity had split into groups, who were in opposition with each other. The whole dispute appears to centre around the choice of Principal for the school.
92. It seems that eventually the Acting Principal lost patience with the Applicant and this accounted for the charges being brought against him. It appears that the charges were collected and at the various times of the incidents, the Applicant was not informed that he would be subjected to a disciplinary enquiry, but thereafter all the charges were accumulated and presented to him.
93. What is also of concern is that it took a long period between his suspension and the charges being presented to him. The charges were only prepared after pressure was brought to bear on the Respondent after a finding made by the ELRC that the Applicant should return to school, whereupon he was again suspended.
94. I find the Applicant not guilty of charge 3, charge 4, charge 5, charge 6, and charge 7.
95. With regard to charge 1 and charge 2, he appears to have not complied exactly with the requirements of the Department. However even his transgressions would have warranted a much lesser penalty such as a warning, perhaps coupled with leave without pay, in respect of leave documents not submitted.
96. Taking all the above into consideration, I find that the dismissal of the Applicant was procedurally and substantively unfair. However considering that there was an element of culpability on his part, in respect of charge 1 and charge 2, back pay should be restricted to nine months’ salary.
97. The Respondent has indicated that the Applicant was earning R31 853-75 per month at the date of his dismissal. The Applicant is entitled to back pay in the amount of R286 683-75 (R31 853-75 x 9) together with any increments accruing thereof.
98. The dismissal of the Applicant, Y. Kistasamy is procedurally and substantively unfair;
99. The Respondent, Department of Education, is ordered to re-instate the Applicant on the same terms and conditions that governed his employment effective from 24 July 2017;
100. The Applicant is awarded nine months arrear salary in the amount of R286 683-75 (two hundred and eighty six thousand, six hundred and eighty three rand and seventy five cents) together with any increments accruing thereof, minus such deductions as the employer is in terms of the law entitled or obliged to make;
101. The amount referred to in paragraph 100 is to be paid to the Applicant within twenty-one days of the Respondent being notified of this award;