Case Number: PSES920-18/19FS
Province: Free State
Applicant: Letele, ME
Respondent: Department of Education Free State
Issue: Unfair Dismissal - Misconduct
Venue: the Department of Education, Katleho Building in Bloemfontein.
Award Date: 23 September 2019
Arbitrator: Dineo Palesa Selelane
Case Number: PSES920-18/19FS
Commissioner: Dineo Palesa Selelane
Date of Award: 23 September 2019
In the ARBITRATION between
Department of Education – Free State
Union/Applicant’s representative: F Crous
Union/Applicant’s address: 66 Kellner Street
Telephone: 051 430 2370
Telefax: 086 687 4748
Respondent’s representative: V Gubuza
Respondent’s address: Private Bag X20565
Telephone: 079 898 4433
1. DETAILS OF HEARING AND REPRESENTATION
1.1 The arbitration proceedings were held on 18 July 2019, and 2-3 September 2019 at the Department of Education, Katleho Building in Bloemfontein.
1.2 The Applicant, Motseki Edwin Letele was represented by CF Crous, and Attorney from Dippenaar and Crous Attorneys. The Respondent, Department of Education – Free State, was represented by V. Gubuza.
1.3 The proceedings were mechanically recorded. The Applicant sought reinstatement as a remedy.
1.4. The Respondent handed in a bundle of documents, admitted as Exhibit “R”, pp 1-11, and called in two witnesses in support of its case. The Applicant submitted a bundle of documents, admitted as Exhibit “A”, and was the only witness.
2. ISSUE TO BE DECIDED
2.1. I am required to determine whether the dismissal of the Applicant was substantively unfair, and if I find in the affirmative, I am required to determine the appropriate remedy.
2.2 The Applicant held that his dismissal was substantively unfair and alleged that he did not break the rule and that the sanction of dismissal was harsh.
3. BACKGROUND TO THE ISSUE
3.1. The Applicant was employed as a Temporary Educator PL 1 on 27 March 1990 until his dismissal on 18 December 2018.
3.2. The Applicant was dismissed for contravention of section 18 (1) of the Employment of Educators Act, 76 of 1998, in that he failed to carry out a lawful order or routine instruction without just or reasonable cause, when he failed to report for duty at Tlotlisang Intermediate School since February 2017.
3.3. I wish to state from the onset that only a brief summary of the arbitration proceedings is contained in this award. A full electronic version is available at the Council upon request.
4. EVIDENCE AND ARGUMENT
THE RESPONDENT’S EVIDENCE AND ARGUMENTS
4.1. Makalo Tsimile “Tsimile “testified that the Applicant was stationed at Leshome School in Botshabelo, he was dismissed and later reappointed. At the time of his reinstatement, the school was no longer main-stream and was closed. The Applicant was instructed to report at the Circuit School at Botshabelo.
4.2. The Applicant wrote a letter to the District Director and expressed that the was unhappy to be earning a salary without working, whereupon he was invited to a meeting where it was agreed that the Respondent would find a school to place him.
4.3. It was established that Tlotlisang Intermediate School had a need for an Educator. The Applicant’s transfer was a permanent transfer and the Principal also confirmed that he needed a Teacher.
4.4. The Applicant was informed and the two arranged to meet at the Satellite Office in Botshabelo. It was fur-ther agreed that the Applicant would receive his transfer letter when he picked him up from the institution.
4.5. He arrived late at the Satellite Office as he attended a disciplinary hearing at the neighbouring town, Thaba Nchu. Upon arrival he was told that the Applicant had left. He went to Tlotlisang Intermediate School where the Principal informed him that he saw the Applicant around the school.
4.6. He then called the Applicant and asked him to come back, he refused and told him that he was in a differ-ent section.
4.7. He then left the copy of the transfer letter with the Principal in case the Applicant would come back. He called the Principal two days later to find out whether the Applicant reported for duty. The Principal in-formed him that the Applicant came in with two gentlemen to the school, but he did not report for duty.
4.8. He called the Applicant and instructed him to come see him, his response was that he should be professional, if the Respondent needed him they should make an appointment to see him.
4.9. Since his transfer the Applicant never reported for duty at Tlotlisang Intermediate School.
4.10. During cross-examination he confirmed that p.1. of “A” was the Applicant’s transfer letter, and that Tlotlisang Intermediate School was not represented in a meeting where the decision to transfer the Ap-plicant was taken however the Principal said he would be happy to have the Applicant at his school.
4.11. He reiterated that they agreed that would meet the Applicant at the Satellite Office. He agreed that the Principal told him that the Applicant came to the school and informed that he was waiting for him, how-ever he left.
4.12. After the Applicant made to avail himself at Tlotlisang Intermediate School, he was given an alternative Educator, and that he looked for the Applicant more than seven times.
4.13. On re-examination he testified that at no stage did the Applicant notify him that he was rejected at the school.
4.14. Mmusi Sam Musi “Musi” testified that he was the retired Principal of Tlotlisang Intermediary School. He knew about the Applicant’s transfer to his school beginning of 2019. He received the Applicant’s transfer letter and gave it to him to report for duty, however the Applicant did not report for duty as per the transfer letter.
4.15. In or around March 2018 the Applicant came with civilians to the school and said they were his witnesses. He felt threatened and called management to accompany him. A meeting was held were the Applicant requested to be given training as it had been a long time since he last taught learners. The Applicant then asked a time book in order to sign. He did not allow him to sign, but instructed him to re-port for duty the following day, however he did not come to work as instructed.
4.16. He denied that he rejected the Applicant, and testified that he did not have the authority to defy an in-struction from the Department of Education.
4.17. During cross-examination he testified that Tsimile gave him the Applicant’s transfer letter, and that he would visit other Educators at the school. He was aware that the Applicant should have met with Tsimi-le at the Satellite Office, however the meeting did not materialise.
4.18. He had allocated classes to the Applicant and phoned his previous Principal and made reference checks. He emphasised that the Applicant was unprofessional the time he came with the civilians and demanded a slot in the time book.
4.19. On re-examination he testified that the Applicant demanded to have a time slot on the time book and that he did not deny him an opportunity to work Tlotlisang Intermediary School.
THE APPLICANT’S EVIDENCE AND ARGUMENTS
4.20. Motseki Edwin Letele “Applicant” testified that on 23 February 2017 he was supposed to meet with Tsimile in order to accompany him to report for duty at Tlotlisang Intermediary School. The Principal (Musi) informed him that the DOE did not inform him about the transfer but advised him to wait for Tsim-ile.
4.21. Around 14h45 pm he left the school, and at 15h00 pm Tsimile phoned him and told him that he was at the school. He told Tsimile that he was already on his way to Bloemfontein and asked him to give the transfer letter to the Principal.
4.22. He went back to Tlotlisang Intermediary School on 24 February 2017 to report for duty and asked the Principal (Musi) for slot on the attendance register. He refused and told him that he first had to meet with the Governing Body.
4.23. He came back again on 27 February 2017 and asked the Principal (Musi) for a time slot on the time register. He still refused and told him that he had not met with relevant people. Musi took his numbers and promised to call him.
4.24. He decided to go to the school on 10 March 2017 with his friends, as he did not receive any call from Musi. Upon arrival he asked Musi to give him a report between him and School Governing Body. In response Musi told him that he spoke with Finger who advised that he should go for rehabilitation.
4.25. He requested to be provided with a slot at the Register, but Musi refused. During May 2017, the Satel-lite Office officials were on strike. He then wrote a letter to the Respondent and told them that his transfer to Tlotlisang Intermediary School had failed. He did not receive response until January / Febru-ary 2018 when he realised that his salary was frozen.
4.26. He did not refuse to report for duty at Tlotlisang Intermediary School, and he received his notice to at-tend
4.27. During cross – examination he testified that he knew about his transfer to Tlotlisang Intermediary School (School) in a meeting held February. He did not go to meet with Tsimile at the Satellite Office as instructed as he lived in section C which was near to the school.
4.28. He further testified that he did not put this version Tsimile during his cross-examination as he waited for this chance to testify.
4.29. He confirmed that his transfer meant that the School Governing Body had approved his transfer to the school. He knew that he had to formally report as an Educator at the school on 20 February 2017, but he had since not reported.
4.30. He disputed that he reported to the school on 10 March 2017 to avoid abscondment. He further testified that did not know the person he reported to at the Satellite Office.
4.31. When asked who instructed him to report at Satellite Office despite the fact that he was permanently transferred, he stated that he was informed by his conscience.
4.32.He confirmed that the School Governing Body did not tell him that his transfer had failed, and that he was not denied access to the school.
4.33. On re-examination he testified that on 23 February 2017 he waited a long time for Tsimile and decided to leave.
5. ANALYSIS OF EVIDENCE AND ARGUMENT
5.1. The Code of Good Practice requires that any person who is determining whether a dismissal for mis-conduct is unfair should consider whether or not the employee contravened a rule or standard regulating conduct, in, or relevant to the workplace, whether a rule or standard was contravened, and whether or not the rule was valid or reasonable rule or standard, the employee was aware or could reasonable be aware of the rule or standard, the rule or standard has been consistently applied by the employer, and dismissal was an appropriate sanction for the contravention of the rule or standard.
5.2. It was a common cause between the parties that the Applicant was dismissed for contravention of sec-tion 18 (1) of the Employment of Educators Act, 76 of 1998, in that he failed to carry out a lawful order or routine instruction without just or reasonable cause, when he failed to report for duty at Tlotlisang Intermediate School since from February 2017.
5.3. It is further not in dispute that the Applicant was permanently transferred to Tlotlisang Intermediate School around February 2017 as an Educator.
5.4. I am called to determine whether the Applicant broke the rule and whether the sanction to dismissal was harsh.
5.5. I have analyzed the evidence of the Respondent and it appears that the charges preferred against the Applicant amounts to insubordination, which is the intentional refusal to obey an employer’s lawful and reasonable orders. The enquiry into the gravity of insubordination requires the consideration of three aspects, namely the action of the employer prior to the deed, the reasonableness of the instruction and the presence of willfulness by the employee.
5.6. Tsimile testified that there was an agreement between him and the Applicant that they would meet at Satellite Office where he would pick him up and take him to the School and introduce him to the Prin-cipal. He further stated that he arrived late and called to the Applicant who refused to come back and told him he was in a different location.
5.7. In his defense the Applicant testified that he waited for Tsimile until 14h45 pm and decided to leave. He further testified that Tsimile called him around 15h00 pm and asked him to come back, but he told him he was already on his way to Bloemfontein.
5.8. I have noted that there might have been a delay from Tsimile, but I have also noted that there was no time specified for the meeting. What was key was the objective of the meeting between the Applicant and Tsimile for the day, which was to formally introduce him to the Principal.
5.9. Musi testified that he was aware of the Applicant’s transfer and that he did not have powers to diso-bey this instruction. He testified that around March the Applicant came to the school with civilians and requested to have a time slot.
5.10. The Applicant supported this version and testified that he took the two civilians along with him to the school as witnesses. Nonetheless he failed to give evidence as to the importance of the two witness-es, and the two were not called in to testify about reason to accompany the Applicant to the school.
5.11. Tsimile testified that when he called the Applicant, the latter told him that he should be professional in that if the Respondent wished to see him, they should act in a professional manner and make an ap-pointment with him.
5.12. This evidence was not challenged. It further illustrate that the Applicant continued to be defiant to the instruction to report at the school.
5.13.I do not find justifiable reasons that stopped the Applicant from coming back fifteen minutes (15) later when Tsimile asked him to come back to the school. In his evidence he testified that he received the call asking him to return fifteen minutes after he left the school.
5.14. Furthermore, there are no compelling reasons that forced him to leave the school before Tsimile ar-rived. The evidence before me suggests that Musi was still in school the time he left, as Tsimile pro-ceeded to give him the transfer letter.
5.15. In his chief evidence, he corroborates the evidence of Musi that he requested a time slot. The Appli-cant did not lead evidence to support that there was a time where he requested Musi to introduce him to his learners. He only testified that each time he went to the school, he requested to be given a time book to sign.
5.16. I have considered the Applicant’s evidence that Musi told him that he first had to meet with the rele-vant people and the School Governing Body before he could commence as an Educator at the school.
5.17. I find this version improbable as during cross examination he confirmed that he knew that he was permanently transferred and that the School Governing Body had approved the transfer.
5.18. In Woolworths (Pty) Ltd / SACCAWU and Others the court laid down steps for an inquiry into the breach of a rule and held that in cases of breach of a rule, Commissioners must consider whether there was a rule, the nature and the importance of the rule breached, whether the employee had knowledge of the rule or was expected to have such knowledge, whether the rule had been consistent-ly applied and whether dismissal was an appropriate sanction.
5.19. It is from this background that I found that the Respondent managed to discharge the onus that the Applicant broke the rule.
5.20. Another aggravating evidence is that the only time the Applicant was prepared to meet with the Re-spondent, the time his salary was frozen. Even then, he failed to report or indicate whether Musi de-nied him access to the school or whether his transfer had failed.
5.21. In all the Applicant’s evidence, failed to testify whether he reported at the school as a permanent Edu-cator. At all material times his evidence suggested that he needed a time slot to sign. Another abhor-rent aspect is that the Applicant testified that he decided to report to the Satellite Office based on his conscience besides a clear instruction for him to report at the school.
5.22. On a balance of probabilities, I found that the Applicant broke the rule. It is a common principle that employers are vested with powers to put rules and standards in place to regulate the conduct of its employees, and observing such instructions is important.
5.23. It is also a norm that the employer’s managerial prerogative to issue instructions to its employees is a principle that is threatened by the misconduct known as insubordination. This principle ensures that the operational requirements of the organisation are not weakened by insubordination on the part of employees.
5.24. TMT Services and Supplies (Pty) Ltd v CCMA and 2 Others [JA32/2017], the LAC held that the foundation of the employer and employee relationship is premised on the employer’s instructions being followed by the employee and that it is intolerable that an employer is forced to engage in negotiations regarding day to day organisational arrangements with employees. The LAC stated that the effect of the employee’s refusal to attend the meeting amounts to undermining the working relationship with her manager.
25. On a balance of probabilities, I find that the dismissal of the Applicant, Motseki Edwin Letele, by the Respondent, Department of Education, Free State was substantively fair.
6.1. The dismissal of the Applicant, Motseki Edwin Letele, by the Respondent, Department of Education, Free State was fair.
Commissioner: Dineo Palesa Selelane