Case Number: PSES 144 – 18/19GP
Applicant: L MABOGOANE
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Misconduct
Venue: the offices of the Gauteng Department of Education in Pretoria
Award Date: 9 November 2018
Arbitrator: COEN HAVENGA
DEPARTMENT OF EDUCATION – GAUTENG PROVINCE
Case Number: PSES 144 – 18/19GP
Date of arbitration: 9 November 2018
Final closing arguments received in writing on: 26 Nov ember 2018
Date of award: 15 January 2019 (extension granted)
Education Labour Relations Council
261 West Avenue
Tel: 012 663 0452
Fax: 012 643 1601
1 DETAILS OF HEARING AND REPRESENTATION
1.1 The matter was set down for arbitration on 9 November 2018 at the offices of the Gauteng Department of Education in Pretoria. The last response in respect of the written closing arguments was received by me on 26 November 2018, and the written arguments will form part of the record. The Applicant is SADTU obo Ms. L Mabogoabe, represented by Mr. W Sekhwela, a SADTU official. The Respondent is the Gauteng Department of Education, represented by Mr. P Mokgotladi.
2 TERMS OF REFERENCE AND ISSUES TO BE DECIDED
2.1 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.
2.2 The parties agreed that the following issues and facts are not in dispute:
2.2.1 The dismissal of the Applicant is not in dispute, as well as the procedural fairness of the dismissal.
2.2.2 It is common cause that the Applicant was in the employ of the Respondent as an HOD at WF Nkomo Secondary School.
2.2.3 The Applicant earned R36 297-00 per month at the time of her dismissal.
2.2.4 She was dismissed following a disciplinary hearing held.
2.2.5 She was charged with two counts of misconduct in terms of the Employment of Educators Act, no. 76 of 1998 (the EEA), i.e. sections 18(1)(a) and (b), in that the Applicant in her capacity as s school uniform committee member she contravened Paragraph 6 of the financial policy of the school in that she failed to issue receipts and to deposit an amount of R65 760-00 received for school uniforms whilst she knew it was wrong, secondly that she willfully and or negligently mismanaged the finances of the school in that she failed to account for the amount of R9490-00, which was received for school uniforms.
2.2.6 The Applicant pleaded not guilty to the allegations at the disciplinary hearing but was found guilty by the Presiding Officer on both the charges.
2.2.7 The Applicant now admits that she was indeed guilty and does not dispute that she committed the misconduct which she has been found guilty of.
2.2.8 The parties agree that the factual findings made by the Presiding Officer at the disciplinary hearing in respect of the Applicant committing the misconduct, were correct, and are not in dispute. The parties agree that those factual findings shall be used in the arbitration as proven facts.
2.2.9 In terms of the substantial fairness of the Applicant’s dismissal, the only issue in dispute is the appropriateness of the sanction of dismissal. The parties agree that this is the only issue that is to be determined by the commissioner.
2.2.10 Both parties indicated that they will not call any witnesses, but that they will submit written arguments in respect of the issue in dispute.
2.3 The outcome that the Applicant seeks in this arbitration hearing is that the sanction of dismissal be replaced with a lesser sanction, and that the Applicant be reinstated retrospectively.
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 the salient points are summarized below. I have studied and considered all the arguments, legal principles, case law and legislation referred to by the parties. The record of the disciplinary hearing as well as other supporting documents has been submitted and forms part of the record.
4 ANALYSIS OF EVIDENCE AND ARGUMENT
4.1 SUBSTANTIVE FAIRNESS OF THE DISMISSAL
4.1.1 In considering the substantive fairness of the dismissal of Ms. Mabogoane 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.
4.1.2 The dismissal of Ms. Mabogoane 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.
4.1.3 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.
4.1.4 The Applicant does dispute that she contravened a rule or standard regulating conduct in, or of relevance to, the workplace, and I find on a balance of probabilities that the Applicant did commit the misconduct she was found guilty of.
4.1.5 The Applicant does not dispute that the rules she contravened were valid or reasonable rules or standards.
4.1.6 The Applicant does not dispute that she was aware of the rules or standards.
4.1.7 The Applicant does not dispute the consistent application of the rules or standards.
4.2 APPROPRIATENESS OF THE SANCTION OF DISMISSAL
4.2.1 The Respondent submitted the following arguments in respect of the appropriateness of the sanction:
184.108.40.206 The misconduct is very serious and makes a continued employment relationship intolerable.
220.127.116.11 The mitigating circumstances of the Applicant is outweighed by the gravity of the misconduct and her lack of remorse during the disciplinary hearing.
18.104.22.168 The employer must be able to trust an educator unconditionally, and that trust have been destroyed. Educators play an important role in the forming of children, and the utmost good faith is expected from them.
22.214.171.124 The society must also have confidence and trust in educators.
126.96.36.199 By collecting money form learners and parents without issuing receipts, and by failing to account for school funds, the trust in the Applicant has been eroded. 188.8.131.52 The Applicant merely denied guilt at the disciplinary hearing, which does not allow for progressive discipline.
4.2.2 The Applicant submitted the following arguments in respect of the appropriateness of the sanction:
184.108.40.206 The Applicant accepts that the charges are serious.
220.127.116.11 The Applicant has 35 years’ service and is a first offender. She is a loyal and dedicated educator.
18.104.22.168 The Applicant was never suspended and continued working during the disciplinary process. The Respondent never saw her as a threat to the smooth running of the school.
22.214.171.124 She cooperated with the investigation. She was a cluster leader an examiner for grade 12.
126.96.36.199 The Applicant pleaded not guilty at the disciplinary hearing because she did not understand the school policy and the regulations governing public funds. At the level of arbitration, she realised her mistake and now pleads guilty to all the charges. This after understanding the broader policy statements given to her. Because she cannot change what happened at the disciplinary hearing, she now has to try her luck and plead for leniency at this level. She now feels very remorseful.
188.8.131.52 The Applicant is staying with her pensioned husband, and they have two children attending university. They are all dependent on her salary.
184.108.40.206 The Applicant is not healthy, she has undergone open heart surgery and is currently receiving treatment. She should be allowed to go on pension.
220.127.116.11 The Applicant pleads for leniency.
4.2.3 I now turn to the element of the appropriateness of the sanction. The Respondent has argued that dismissal is appropriate considering 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  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.
4.2.4 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.
4.2.5 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)).
4.2.6 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.).
4.2.7 The misconduct of Ms. Mabgoane must be seen in a serious light. The mismanagement of school funds affects the capacity of the Department of Education to exercise its mandate efficiently, which would not be in the interest of the learners of the school. Section 28(2) of the Constitution of the Republic of South Africa, no. 108 of 1996 provides that a child’s best interests are of paramount importance in every matter concerning the child. This is a factor that I keep in mind as surely it was not in the best interest of the learners of the school that school funds are mismanaged in such a serious manner.
4.2.8 The Applicant’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  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  6 BLLR 685 (AD); Lahee Park Club v Garrat  9 BLLR 1137 (LAC)).
4.2.9 I refer to Theewaterskloof Municipality v SALGBC (WC) and others LC C966/2008, 14 May 2010, wherein the Labour Court (LC) stated that the question of trustworthiness was seen to go beyond offences which are centrally dependent upon proof of outright dishonesty. The LC stated the general principle that conduct on the part of an employee which is incompatible with the trust and confidence necessary for the continuation of an employee relationship will entitle the employer to bring it to an end is a long established one. The LC stated that comparison can be drawn between length of service and a clean record on the one hand, and the circumstances of the offence and lack of remorse amounting to defiance on the other. The LC found it would be incorrect to hold the dismissal was unfair and to require the Municipality to restore the employee to a position in which he has wittingly compromised a core value and has set himself uncompromisingly against any course of reparation. There has either been no recognition by him of wrongdoing on his part or a stubborn refusal to say as much to his employer. Either way, he cannot now as a matter of fairness insist that he is to be placed back in his post, the LC found. There can be little room for the notion of corrective discipline in this situation. The LC also found that where an employee refuses to demonstrate any acceptance of wrongdoing, indicates no degree of whatsoever of remorse, makes no move to correct what he has done, and stands firm with an attitude of opposition towards his employer, then such employee through his own conduct undercuts the applicability of corrective or progressive discipline.
4.2.10 The above is aptly applicable in this matter. The Applicant showed no remorse during the disciplinary hearing but continued to deny any wrongdoing. Only after she was found guilty, and dismissed, she changed her stance. The Applicant submitted that “because she cannot change what happened at the disciplinary hearing, she now has to try her luck and plead for leniency at this level. She now feels very remorseful”. It appears as if her remorse has only been triggered by her dismissal, and that her remorse is feigned in an effort to try her luck at this level, as she argued.
4.2.11 The actions of the Applicant leave no option for the application of progressive discipline. I could find no other circumstances from the evidence that would dictate differently. 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.
4.3 PROCEDURAL FAIRNESS OF THE DISMISSAL
4.3.1 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.
5.1 I find that the dismissal of Ms. Mabogoane 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.
5.2 No order is made as to costs.