Case Number: PSES 396 -05/06GP
Applicant: L MACFARLANE
Respondent: GAUTENG DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Misconduct
Award Date: 13 February 2006
Arbitrator: Ahmed Cachalia
IN THE EDUCATION LABOUR RELATIONS COUNCIL
CASE NO: PSES 396 -05/06GP
In the matter between
L MACFARLANE APPLICANT
DEPARTMENT OF EDUCATION
DATE AND VENUE OF ARBITRATION
The arbitration was held on 20 January 2006 at the premises of the Department of Education in Johannesburg, Gauteng.
Mr Macfarlane represented himself while Mr Maponya represented the Respondent.
The Applicant had been employed by the Respondent as an educator in 2001. The Applicant had previously been employed by the Free State Department of Education. On the Applicants application form for employment to the Respondent he had indicated “NO” to a question related to whether he had been charged for professional misconduct.
Upon later investigation by the Respondent, it was found that the Applicant had in fact been charged and dismissed for misconduct by the Free State Department of Education.
The Respondent subsequently charged the Applicant and dismissed him in January 2005.
The Applicant contends that his dismissal is both procedurally and substantively unfair.
Mr Maponya submitted that the Respondent had afforded the Applicant his procedural rights. In so far as it relates to witnesses, the Respondent indicated to the Applicant that it had no jurisdiction over employees of the Free State Department of Education and could therefore not secure their presence at the arbitration. The Respondent further indicated that the Applicant should secure its witnesses.
With regard to substantive fairness, Mr Maponya argued that the Applicant had misrepresented on Form E that he had not been charged with professional misconduct. The Respondent was unaware of this and only after it had received a query from Mr Macfarlane concerning his salary did the Respondent do an investigation. The Free State Department indicated that Mr Macfarlane had been charged for misconduct and dismissed. Further, the Department (Free State) wrote a letter to the Respondent dated 24/06/03 indicating that the Applicant had been dismissed with effect from 1 March 1999. It further indicated that “ this department apologises and deeply regrets the issuing of an incorrect certificate. Disciplinary action will be taken against the responsible official.”
Mr Maponya stated that Mr Macfarlane was aware that he had been charged and dismissed by the Free State Department and notwithstanding this knowledge he had indicated on FORM E that he had not been charged for professional misconduct.
Mr Macfarlane received his charge sheet in May 2004. In October 2004 Mr Macfarlane applied for another position. On his application form (pp13- 16 of bundle), Mr Macfarlane once again indicates “ NO” to two questions viz. “convicted of misconduct/criminal offence” and “been dismissed from employment.” Mr Maponya argued that despite the Applicant being aware of his dismissal for misconduct he once again after the receipt of his charge sheet still indicated that he had not been dismissed or charged for misconduct.
Mr Macfarlane indicated that he had received a certificate of service from the Free State Department indicating “ Service and conduct satisfactory as far as known”. On this basis he believed that his previous misconduct were scrapped from the records. He further indicated that until he receives a different certificate of service he will maintain that he has not been dismissed or charged with misconduct. He further argued that his dismissal cannot hold because the labour court has not yet made a decision.
Mr Macfarlane brought a witness Mr Mthimkulu who had been a witness at the disciplinary enquiry. Mr Mthimkulu stated that Mr Diederiks, a departmental official indicated that he would have filled in the form in the same way as Mr Macfarlane had done.
ANALYSIS OF EVIDENCE AND FINDINGS
With regard to procedural unfairness I cannot find anything to suggest that the Respondent had precluded the Applicant from bringing witnesses. The Respondent indicated that it did not have jurisdiction over employees of the Free State. The Applicant could have arranged for a subpoena from the ELRC requesting the presence of the witnesses that he wanted. The Applicant did not do so.
In the circumstances, the dismissal of the Applicant was procedurally fair.
I now turn to look at the issue of substantive fairness.
It is common cause that Mr Macfarlane had been dismissed from the Free State Department of Education. He had subsequently been charged by the Respondent for failing to disclose this information. The charge against Mr Macfarlane is as follows:
“it is alleged that on the 29th March 2001 you gave false declaration/information when you were completing Form E in that you declared that you have not been charged for professional misconduct in the Public Service, while you were charged for same while in the employ of the Free State Province for same.”
Mr Macfalrlane received his charge sheet on 17 May 2004. In October 2004, Mr Macfarlane once again misrepresented that he had been dismissed or charged.
Mr Macfarlane indicates that his certificate of service indicates satisfactory conduct and therefore he believes that his record has been expunged. He further argued that the form he submitted in October was irrelevant to proceedings at the arbitration.
Mr Macfarlane was at all times aware that he had been charged for misconduct and that he had been dismissed from the Free State Department of Education. I cannot accept that the certificate of service whether erroneous in nature would alter that fact. Mr Macfarlane himself indicated that that dismissal was currently before the Labour Court. If Mr Macfarlane believes that the certificate of service exonerates his previous actions, he would not have taken the matter to the Labour Court. Mr Macfarlane was clearly aware that he had been dismissed yet chose not to indicate this on his application form. He clearly misrepresented himself. It is on this basis that I find that he is guilty of misrepresentation
I now turn to deal with the issue of whether the application form of October 2004, completed after the Applicant had been charged and not part of the evidence at the disciplinary enquiry, can be used at the arbitration proceedings. I do not believe that one can ignore this evidence. I say so because it indicates aggravating factors. I do not base my reasoning of finding the Applicant guilty of misrepresentation on this issue but use it as an indication of continued misconduct on the part of the Applicant.
Even if I do not take into account this evidence, I still find that the Applicant had misrepresented himself on Form E. By completing his application form in October 2004, the Applicant persisted in his misconduct and I find this damaging to the trust relationship between the parties.
In the circumstances, I order as follows:
1. the dismissal of the Applicant is both procedurally and substantively fair;
2. there is no order as to costs.
13 February 2006