Case Number: PSES 306-16/17KZN
Applicant: Khuzwayo S.C
Respondent: Department of Education Kwa-Zulu Natal
Issue: Unfair Dismissal - Misconduct
Award Date: 5 December 2019
Arbitrator: Protas Cele
Case Number: PSES 306-16/17KZN
Commissioner: Protas Cele
Date of Award: 5 December 2018
In the ARBITRATION between
(Union / Applicant)
Department of Education Kwa-Zulu Natal
Union / Employee’s representative : Advocate T. Kadungure
Union / Applicant’s address : 29 Jupiter Road
Email : Charles.firstname.lastname@example.org
Employer’s representative : A Preethpaul, ER
Email : Charles.email@example.com
1. Details of Hearing and Representation
1.1 An alleged unfair dismissal dispute was referred to the ELRC in terms of section 191(1) and 191 (5) (a) of the Labour Relations Act 66 of 1995 (LRA), as amended.
1.2 The arbitration hearing was held at Dokkies- KZN, Glenwood, Durban on 17-18 April 2018 and at Durban Teachers Centre on 19 June 2018, 20 August 2018, 29-30 October 2018. The Applicant was represented by Advocate T Kadungure instructed by N.F Mlaba Attorneys and A Preethpaul from Employee Relations, represented the Respondent.
1.3 The hearing was conducted in English and was digitally recorded.
2. Issue to be decided
2.1 The issue to be decided is whether or not the dismissal of the Applicant was substantively and/or procedurally fair, and if it was not, what relief he is entitled to, and the quantification thereof.
3 Background to the issue
The facts set out below were agreed or not disputed
3.1 The Applicant was employed by the Respondent in 1989 as an educator at Nqabakazulu comprehensive school. In December 2000 he was promoted to be a Head of Department at Umlazi Secondary School. He was further promoted to be a deputy Principal at Sivananda Technical School in January 2006. He was an acting Principal at the same school in January 2009 and confirmed as Principal on 22 February 2011.
3.2 He was dismissed in May 2014 for misconduct following a disciplinary enquiry and the appeal confirmed the dismissal in August 2016. At the time of the dismissal he was earning a basic salary of R41,178,75 per month 5 charges were levelled against him and he was found guilty on charge 1 with 5 counts as well as charge 2. The charges emanated from an investigation report on alleged mismanagement of school finances and poor performance. The Applicant denied the allegations levelled against him.
3.3 Sivananda Technical High School was sharing the same site with Elangeni FET College. The events which gave rise to the dispute occurred during the co- existence of the school with the FET College before they were unbundled.
4. Survey of Evidence and Argument
4.1 The Respondent produced a bundle of documents, an investigation report, pages 1-261, which was marked as bundle A as and which was admitted and led the evidence of 5 witnesses, Nhlanhla McCord Ngcobo, Chairperson of the School Governing Body (SGB), Velile Fortunate Gasa, Administration Clerk, Leslie Peter Swart, Verulam Circuit Manager, Sibongile Tracy Nkosi, Chief Education Specialist and D E Thusi, Pinetown Circuit Manager.
4.2 McCord testified that his involvement at Sivananda Technical High School started when he was a parent for 2 learners whereupon he became a member of the SGB. In 2010 he was a deputy chairperson and eventually became chairperson of the SGB.
4.3 As a section 21 school, the school collected fees from learners. Parents came to the school in October 2010 as they normally did, to register learners for the following academic year and paid admission fees. He was not called to all the meetings of the SGB and as such he was not initially aware if the moneys were banked until it was brought to his attention by the Circuit Manager, Ms Nkosi, that in fact they were not, and that was at the time when the learners became violent.
4.4 An SGB meeting was held and chaired by Ms Nkosi during which she stated that the money was used as a bribe in order for Mr Khuzwayo (the Applicant) to get the post of principal and further that other members of the SGB did not benefit from that bribe.
4.5 A verbal alteration had then ensued amongst the members of the SGB whereupon he (McCord) stated that the matter was serious and that it needed an investigation.
4.6 He stated that the SGB never recommended for the appointment of an auditor for the school, at least in his presence. He never saw a school audit report. The department issued a circular not allowing Ngwenya and Associates to be an auditor. He (Ngwenya) was not doing a perfect job as an auditor for other schools. He was not aware who appointed him (Ngwenya).
4.7 He explained that it was the responsibility of the principal to ensure that banking was done. Banking should be done daily and if it is not possible then the money must be kept in the strong room. Banking was supposed to be done at First National Bank.
4.8 He testified that the role of the SGB when it comes to the appointment of educators is firstly to conduct interviews before it appoints, if it is a substantive or permanent post and if it is a substitute, it recommends.
4.9 He referred to page 229 of bundle A and stated that the SGB did not recommend for the appointment of Phiwayinkosi Mhlobo but the Principal (the Applicant) continued with the appointment inspite of the SGB’s refusal to recommend.
4.10 When Mhlongo was employed from 1 June 2012 until 7 December 2012 it was for the 2nd time. He had previously been employed from January 2012 to May 2012. The SGB had not been a party to this appointment from the onset. After his first appointment there was a complaint about his intermittent attendance at the school and then it transpired that he was in fact a full time student.
4.11 The SGB questioned the appointment of an unqualified teacher who was a full time student instead of a qualified teacher who was not a full time student. He referred to page 238 of the bundle, a notice of assumption of duty and testified that the Principal completes this form when an educator is employed. The period of employment recorded on the notice is from 1 June 2012 to 7 December 2012. He reiterated that the SGB had not recommended this appointment.
4.12 He then referred to page 244, a time book, and explained that all employees/educators sign when they report for duty and when they leave. According to the time book Mhlongo is recorded as No16 in the educator column. His signature does not appear in the signature column. The period recorded in the time book is from 30/01/2012 to 3/02/2012. Mhlongo is recorded as sick for the entire duration of that period.
4.13 During cross examination he confirmed that when he was a deputy chairperson the school already had an account at First National Bank. He stated that the investigation was conducted when he was already a chairperson but he was still a deputy chairperson when the issues about the school finances were disclosed to him.
4.14 He conceded that in terms of paragraph 1 on page 133 of the investigation report the school did not have an account prior to 1212 and that as such the Principal (Applicant) could not have deposited the money into the school’s bank account as he (McCord) stated in his testimony.
4.15 He stated that the Principal and the chairperson did not call him to the meetings because he was a stumbling block. He explained that when the Principal was recommended for the post, a total of R23, 000 was shared amongst the SGB members and that the members confirmed in the presence of the Circuit Manager that they were paid. He admitted that he does not have proof of this and that the investigation report does not make any reference to it.
4.16 When he was referred to paragraph 1 on page 137 of the investigation report where it is recorded that the SGB has not performed its statutory, and more importantly, its fiduciary functions relating to the management of the school’s finances, he stated that the Principal is an accounting officer, the SGB is there to support the school thereby supporting the Principal. In terms of SASA the Principal has a duty to workshop the SGB and not the other way round. If the SGB is wrong it is so because of the Principal.
4.17 He denied that the school had no funds at the time of unbundling. He explained that he raised a lot of objections when there was a suggestion for the payment of a non-refundable fee of R100 for cleaning the school yard. He stated that he believed that this was incorrect and illegal because there were allocations at the school for that. He confirmed that because the school did not have a bank account the money was deposited into the account of Elangeni College.
4.18 He stated that the Principal did not want him to become a member of the SGB. He knew the Principal long before “Sivananda” and there was no animosity. He denied that the school always had its problems and that every principal would be accused of money issues and leave under a cloud.
4.19 He conceded that he did not write to Head office when he became aware that Mhlongo had been appointed insipte of their refusal as the SGB to recommend the appointment and that he also did not write to Pietermaritzburg for the teacher (Mhlongo) not to be paid.
4.20 He did not comment when it was put to him that Mhlongo did not disclose to the Principal that he was registered as a student and that when he (Principal) became aware of this, he took action.
4.21 He stated that Ngwenya is no longer doing any auditing. He was stopped. He is not an auditor nor does he possess a certificate to that effect. The SGB recommends auditors. The Principal was required to present the SGB with 3 quotations from which it would then choose the best in terms of the work that they were doing.
4.22 Fortunate testified that she is currently employed as an Administration clerk at Sivananda Technical High School, a position she has occupied since 8 May 2010. Her duties involve all administrative duties which include dealing with Finance, leaner administration, human resource functions, typing and filing, answering the telephone, receiving the mail from the post office and any related administrative work.
4.23 Her financial duties include the collection of monies, receiving proof of payments from leaners, doing cash receipt payments, keeping a cash receipt journal, keeping petty cash and banking.
4.24 In 2010 she received R29 700 which was for grade 8 registration. The money was reconciled in front of the Principal and the Deputy Principal whereupon the Principal took it for banking. She stated that before she was employed at Sivananda Technical School, she was employed at Elangeni College from 5 February 2008. At the time she performed Human Resource Functions and did not deal with financial matters pertaining to Sivananda Technical School.
4.25 She testified that the bank account in respect of Sivananda Technical School was opened on 21 January 2010. She explained that on the previous day of the arbitration hearing she had gone to the bank to check when the account was opened and to obtain proof of payment for grade 8 for 2010, 2011 and 2012.
4.26 She referred to paragraph 8.4.10 on page 119 of bundle A of documents and stated that the money she collected from leaners for grade 8 registration was a total amount of R29,300. The money was reconciled in the presence of the Principal and the Deputy Principal. The Principal took R2,000 from this amount for grade 12 awards and end of year function.
4.27 She deposited the balance of R27,300 into the bank account. The grade 12 awards and the end of year function proceeded as scheduled.
4.28 The auditor for the school in 2010 and 2011 was Ngwenya and Associates. She stated that she was a member of the SGB representing non-teaching staff and that she was present at the meeting when the SGB appointed Ngwenya and Associates and auditors.
4.29 She testified that she knew Mr P Mhlongo. He was a substitute Educator. He did not come to the school regularly and she did not know where he was when he was not at school.
4.30 During cross examination she confirmed that in 2009 Sivananda Technical School was unbundled from Elangeni College and that at that stage she was not dealing with any finances pertaining to the school. She could not confirm whether Sivananda had no money when she started and that a R100 administration fee was introduced as a fund raising exercise. She did not know and explained that she was not yet there.
4.31 She also could not comment on the proposition that only when the account was opened, was R29,300 deposited. She further did not know who recommended Mr P Mhlongo to be appointed as a substitute.
4.32 She confirmed that she knew Mr Ngwenya and that he used to come to the school. She stated that Siphumlele Primary School and Sibonelo High School also used him as an auditor.
4.33 She further confirmed that the grade 12 awards existed since the inception of Sivananda Technical School. She did not comment on the proposition that the amount of R29,000 was deposited into Elangeni College Bank Account on 18 01 2010 before Sivananda bank account was opened.
4.34 She also did not comment on a further proposition that before the money was deposited two payments of R6,280 and R950 were made to a service provider for a call out when there was a leakage and a blockage in the boys’ toilet and that a further payment of R1,810 was made for a new switch when there was an electricity problem, leaving the balance of R20,660 which was deposited on 18/01/2010.
4.35 She stated that she did not do any petty cash for Sivananda Technical School or Elangeni College in 2009. She did not collect any money for Sivananda School in 2009. She further stated that she was not aware of a cheque book and disputed that the signature which appeared on the cheque book was hers.
4.36 Leslie Swart testified that he is currently employed as a Circuit Manager in the Verulam District. The position was occupied by Rev D.E Thusi at the time when the Applicant was the Principal of Sivananda Technical High School.
4.37 He was commissioned by the HOD to investigate alleged financial irregularities at Sivananda Technical High School where Mr Khuzwayo (Applicant) was the principal. His investigation report is contained in the Respondent’s bundle A of Documents.
4.38 He stated that Sivananda School had been part of Elangeni FET college and that according to the investigation report the school was unbundled from the FET college in February 2010, meaning that the school opened its own bank account. Previously all monies were deposited at the FET College.
4.39 He referred to page 202 of the investigation report and testified that Ms V Gasa, the school clerk and finance officer, had written a letter to the Circuit Manager, Rev Thusi on 25 October 2012 in which she explained that during October 2010 she collected a total of R29,700.00 being administration fees from new grade 8 learners. As per instruction from the Principal (Applicant), Mr Khuzwayo, no receipts were issued, instead names were recorded on a template.
4.40 He explained that Gasa handed the money over to the Principal in the in the presence of the Deputy Principal, Ms N.E Ndlovu. At a meeting held during a preliminary investigation and chaired by Dr Nzama, Mr Khuzwayo stated that he had banked the money but he could not produce bank statements as proof of deposit.
4.41 In the last interview Khuzwayo presented a slip from the bank contained on page 9 of bundle B (Applicant’s bundle) which he explained that he had since been able to locate. He (Khuzwayo) explained that he deposited the money in January 2010. The date which appears in the bank statement is January 2010.
4.42 He testified that when he spoke to the Clerk, Gasa, she stated that she commenced employment at the school (Sivananda) in May 2010. He explained that in terms of the KZN school fund policy manual, monies received must be banked on the day of receipt or on the following day.
4.43 In outlining his other duties and functions he stated that from 2009-2016 he was utilized extensively by Head Office to conduct financial workshops at schools in KwaMashu and Ntuzuma. Mr Khuzwayo would have been present at the workshops for Principals and finance officers if he was a Principal in 2009/2010.
4.44 He testified that all monies received must be receipted. The school must have a personalised receipt book. The internal auditor ought to reconcile the monies with receipts. The monies must be deposited on the same day unless there are exceptional circumstances in which case the monies must be locked in the strong room if not banked.
4.45 During cross-examination he was referred to page 132 and confirmed that he compiled the report. He conceded that he is neither a qualified auditor nor a qualified forensic investigator. He also admitted that an investigation must be approved by the MEC, and that he did not have a letter from the MEC. He stated that Dr Nzama would have to provide that (letter).
4.46 He could not comment on the provisions of 543 (2) (b) of the South African Schools Act when it was put to him that he carried out all his functions during the investigation without being appointed by the MEC.
4.47 When a proposition was put to him that according to page 133 paragraph 1 of his investigation report the school fund account was established in February 2012 after Sivananda Technical High School was unhundled from the Elangeni Group of FET Colleges, whereas according to the confirmation of account held with FNB contained on page 59 of Bundle B (Applicant’s bundle), the account was opened on 21/01/2010, he stated that p133 of his report must be disregarded,
4.48 He admitted that he did not make any effort to confirm with the bank. It was put to him that the money which appears on the receipt on page 9 of bundle B i.e.R20,660 which was deposited into the school fund account had been collected in 2009 prior to the opening of the school fund account, It was further put to him that according to the receipt contained on page 10 of Bundle B, an amount of R6,280 was paid to a service provider who attended to the boys toilet when it was leaking
4.49 It was also put to him that according to a quotation for electrical maintenance which appears on page 11 of Bundle B, an amount of R1,810 was spent on changing of light tubes and staters, installation of a new plug socket kits, new light switch, new day light switch and outside lights repair and that the date on the quotation is 11/01/2010. He was also referred to an amount of R950 for a callout reflected on page 12 of Bundle B
4.50 He admitted that he did not get all this information during his investigation and that he did not request for any terms of reference. He conceded that if he had this information his views would most probably have been changed,
4.51 When he was referred to Julias Nkwanyana’s affidavit which appears on page 66 of Bundle B and a version put to him that Julias was the first Chairperson of the SGB at Sivananda School and that in his affidavit he stated that he was in the SGB from 2010 to 2013 and that all the finances were up to date in all these years, he admitted that he did not interview him.
4.52 He was also referred to page 67 of Bundle B, an affidavit in which Sizakele Mtshali, treasurer of the SGB at Sivananda School during the period 2010-13. In her affidavit she stated that school finances were in order. He confirmed that he did not speak to her.
4.53 He stated that he conducted financial training at school in KwaMashu and Ntuzuma but could not recall if Khuzwayo (Applicant) attended, He got involved because people with expertise overlap, He did not have an attendance register containing the names of the people who attended.
4.54 During re-examination he stated that his involvement was to conduct an investigation and not auditing.
4.55 Tracy testified that she is employed the Respondent as a Chief Education Specialist. At the time when Mr Khuzwayo (Applicant) was a Principal at Sivananda school she was a supervisor for Ward Managers i.e. Circuit Manager. She interacted with Principals of school and discussed about their finances.
4.56 As part of her duties she visited schools to ensure that they were functioning properly. She started working as a Circuit Manager in 2009
4.57 She testified that the appointment of Phiwayinkosi Mhlongo as an educator at Sivananda school was irregular. Rev Thusi, Ward Manager investigated the matter and found that he was a full-time student. She could not confirm if Khuzwayo was aware that Mhlongo was always absent from school.
4.58 She refered to a letter on page 252 of Bundle A addressed to the Principal of Sivananda School on 20 May 2012 and explained that the letter refers to the placement of students for professional practice. Mr Mhlongo’s name appears on the schedule. The University of KwaZulu Natal had confirmed that Mr Mhlongo was a fulltime student at Edgewood College of Education.
4.59 She referred to page 238 of Bundle A, an assumption of duty signed by Mr Khuzwayo, pages 239-240, registration for employment as an educator, page 242 confimation letter that Mhlongo was employed at Sivananda as an educator, and explained that at this stage Khuzwayo would have known that Mhongo was a student.
4.60 During cross examination she stated that although she could not be precise, she started in March 2009 and Khuzwayo was appointed before she went to Head Office. She conceded that the letter on page 252 of Bundle A, placement of students does not state that Mhlongo is a full-time student.
4.61 When she was referred to page 46 of Bundle B, a circular on identification of vacancies for placement of educators, and a version put to her that task teams are required to consider three requirements as per the circular and that Khuzwayo would not have been aware that Mhlongo was a full-time student as Mhlongo only told him that he was part-time, she stated that Mhlongo was not protected by the circular as it referred to educators who were always in the system.
4.62 She did not comment when she was referred to a letter on page 52 of Bundle B in which Mhlongo states that he acted in such a way that is deemed inappropriate by the Department of Education, apologises and seeks parental advise.
6.63 She was referred to pages 254-261of Bundle A, an attendance register and a version put to her that Mhlongo was attending and not always absent as stated, she stated that signatures are not the same but she did not want to allege “who did what” she conceded that she did not have a report from Rev Thusi who according to her,investigated the matter stating that Mhlongo was absent from school nor any forensic report from someone.
4.64 She did not comment when a version was put to her that Mhlongo would come and testify that he did not disclose to the school that he was a full-time student.
4.65 During re-examination she stated that she was not sure if Edgewood College offers part-time studies but she thought that it does.
4.66 Thusi testified that he is employed by the Respondent as Circuit Manager and that he was a supervisor for Mr Khuzwayo. He explained that Principals had to identify an educator and the school was granted permission to appoint if he/she met the criteria.
4.67 He referred to page 229 of Bundle A, A Route Form and stated that the form is completed by the Principal when he/she submits for appointment and that in this case it was completed Mr Khuzwayo in respect of Mr Mhlongo.
4.68 After he received allegations of irregularities relating to the appointment of Mr Mhlongo from the Circuit Office, he approached the school. The allegations were that Mhlongo was a full-time student and yet employed by the school. He established that he was a full-time student, a PGECE.
4.69 He referred to page 252 of Bundle A, placement of students, and page 232, appointment of temporary/substitute educator and testified that the letter on page 252 is normally sent by the university to the school and that according to the form which appears on page 232 Mhlongo was appointed on 1 June 2012. Mr Khuzwayo was supposed to be aware of the appointment but he (Khuzwayo) said that he had allocated that responsibility to the Deputy.
4.70 During cross examination he continued that he did speak to the Deputy Principal who informed him that she was responsible for student educators and that Mhlongo was a student teacher, but she was not sure how he was appointed.
4.71 The Applicant produced a bundle of documents which was marked bundle C together with a supplementary bundle which was marked bundle. Both bundles were admitted and the Applicant proceeded to lead the evidence of 2 witnesses, Sakhumuzi Charles Khuzwayo and Phiwayinkosi Mhlongo.
4.72 Khuzwayo testified that he has 20 years teaching experience. He started at Nqabakazulu High School as educator and subsequently promoted to the position of HOD for maths at Umlazi Secondary School. In 2006 he was further promoted to the position of Deputy Principal at Sivananda High School. In 2009 he became an acting Principal and in 2011 he was confirmed as the Principal at the same school (Sivananda High School).
4.73 He explained that a bulletin would come out for various positions whereafter CV’s would be submitted. If a candidate was successful he/she would be called for an interview and if further successful he/she would get a placement. The same procedure was applied when he was promoted.
4.74 He referred to the allegations contained on page 67 of bundle A and to the investigation report contained on page 119 of the same bundle of documents and confirmed that the allegations were levelled against him pursuant to an investigation which was carried out. He received an invitation from Dr Nzama to attend an interview at the district office in Pinetown.
4.75 The panel consisted of 3 Female and 3 male panellists. He could not recall their names but amongst them was Dr Swart who was introduced as a Finance investigator. The interview emanated from a list of grievances which was submitted to Head Office by a group called “Concerned parents”.
4.76 He was asked a number of questions on finances including an amount of R29,000 which was allegedly missing and not deposited. He then referred to page 72 of the same bundle (A) and stated that an investigation was also conducted on 22/10/2012 into the circumstances which caused dysfunctionality at Sivananda High School.
4.77 He Further referred to pages 133-137 of the bundle and testified that a further investigation was conducted by Dr Swart on the finances of the school. He did not know who the author of the 1st investigation was.
4.78 He stated that Dr Swart does not have forensic qualifications and was not registered and that as such he ought not to have conducted the investigation and further that he did not have a letter from the MEC authorising him to conduct the investigation.
4.79 He explained that when he was asked about the amount of R29,000 he did not have anything to show at that stage but he told the panel that he deposited the money into the account of Elangeni FET College. The panel rejected his explanation and insisted on an explanation around the money that was allegedly used as a bribe in order for him to get the post.
4.80 He testified that the school (Sivananda) did not have an SGB and that it was under the administration of the College, Elangeni FET. All the finances were administered at the College. The educators at Sivananda wanted their own SGB and one of the reasons was a belief that school funds were utilised for the benefit of the College instead of the school.
4.81 Another reason was that since there was no SGB at Sivananda, the promotion function was effected by the Central office of Elangeni College and the Educators at Sivananda felt that they did not enjoy preference of College Council when it came to promotion posts.
4.82 At the time of unbundling there was a concern that the school would not get its funds and a fear that it would start on zero balance. A decision was taken at a meeting that the school should raise funds which would keep it afloat until it received its own allocation.
4.83 It was agreed that in the school’s intake, which is grade 8, forms should be issued with a non refundable amount of R100. It was agreed that the forms should be contained to 30 in number which would translate to the value of R30,000.
4.84 The total amount which was however received from the forms issued was R29,700. He put the money in the safe at the school instead of depositing it at Elangeni. At that stage there was no account for the school. He realised that it was not safe to keep the money and thought about opening an account for the school.
4.85 He then proceeded to the bank where he was told that only an SGB can open an account. The school did not have an SGB. He eventually deposited the money into the account of Elangeni FET College after the Rector at a meeting assured him and allayed fears that the school would not get its allocation.
4.86 He referred to page 8 of bundle B and explained that 365 forms were issued, 303 were taken, 62 were left and the value of refunded forms was R600. If R100 (value of each form) is multiplied by 303 (forms that were taken) the total value comes to R30,300 minus R600 (value of refunded forms) = R29,700.
4.87 He further referred to page 9 of the same bundle, a deposit slip bearing an FNB date stamp being 18 January 2010, the amount of R20,660 being cash deposit into the FNB account of Elangeni FET College at the Pavillion branch, and stated that the amount that was received from the forms i.e R29,700 was deposited on 18 January less the amount of R9,040.
4.88 From the balance of the money i.e R9,040, R6,280 had been paid to a service provider on 6/01/2010 who attended to the boys’ toilet when it was leaking, as per a tax invoice which appears on page 10 of bundle B. A further amount of R1,810 had also been paid on 11/01/2010 for electrical maintenance as per quotation and invoice which appear on page 11 of the same bundle. R950 was paid on 16/01/2010 for plumbing as per tax invoice which appears on page 12 of the bundle. A total amount of R1,810 had also been paid on 11/01/2010 for electrical maintenance as per a quotation and invoice which appear on page 11 of the same bundle. R950 was paid on 16/01/2010 for plumbing as per a tax invoice which appears on page 12 of the bundle. The total comes to R9,040.
4.89 He referred to paragraph 8.49 on page 119 of bundle A and stated that according to the investigation report the money i.e R29,700 was collected during October 2010 and that the money was not deposited. He explained that the money was collected late in 2009 for the following academic year, 2010. The money was deposited and an illustration has already been made as to how the balance of the money was used and what it was used for. If the author had given himself time to listen to his version there would be no discrepancy. The report was used to support their version that I had used the money as a bribe.
4.90 He then referred to page 133, paragraph 1 of the same bundle and testified that according to the investigation report the school fund account was established in February 2012. He then referred to page 59 of bundle B and stated that the confirmation of the account from FNB clearly states that the account was opened on 21 January 2010.
4.91 The school did not have money and hence they were fundraising. When the process was started i.e fundraising they did not have a receipt book and hence he generated a template for a record.
4.92 The monies were reconciled in the presence of the clerk and the Deputy Principal. He asked them to leave R2,000 aside which was subsequently used for the matric awards function. There was no shortfall which could not be accounted for as stated in paragraph 8.4.10 on page 119 of bundle A i.e investigation report.
4.93 It is true that McCord Ngcobo, 1st Respondent’s witness and former chairperson of the SGB did not want him to be the Principal of the school and tried to discredit him. McCord believed that he played a role in order for him not be the chairperson and instead became the deputy although he had acquired more votes than the person who became chairperson prior to him (McCord) becoming chairperson at a later stage. He referred to page 83, paragraph 7.2.3 of the investigation report contained on Bundle A and stated that the former chairperson of the SGB J. Nkwanyana, said that he did not remember anything about the R20,000 bribery for the post of the Principal.
4.94 Nkwanyana further stated that he knew that there were 2 camps within the former SGB. The first camp was supporting the acting Principal. The other camp with McCord Ngcobo and Simelane did not want him (Khuzwayo).
4.95 He testified that it is disturbing and inadequate, that Dr Swart did not interview any of the people whose affidavits appear on pages 66-67 of bundle B i.e Julius Kwanyana (1st Chairperson of the SGB), Sizakele Mthabali (former treasurer)and Nompumelelo Mthethwa (parent of grade 8 learner).
4.96 Ngcobo wanted him out of the school. In September 2011 during school holidays he received text messages stating that he should not report for duty when the schools re-opened on Monday because there would be people waiting to shoot him.
4.97 He further testified that Phiwayinkosi was a temporary educator appointed to the position of HOD for Commerce in the place of Mr Sikhonde who had taken early retirement. He had worked at the school previously they were happy with him. He is currently working as an educator in the same school as a full-time employee.
4.98 A full-time employee is someone who has gone through as interview with the SGB, appointed and has a personal number. He/She must be qualified i.e must have a certificate. A temporary Educator can be someone with a degree e.g Commerce but no professional qualification. He did not allow Mhlongo to be a full-time employee.
4.99 Mhlongo did not tell him that he was a full-time student and when he (Khuzwayo) became aware of this he advised him (Mhlongo) to resign. He referred to a letter which appears on page 52 of bundle B which Mhlongo wrote to the Ward Manager stating that he had reported to the school that he was registered with Edgewood and only told them at the school, that it was on part-time basis. Mhlongo apologised in the letter and sough parental advise, he was not charged when he should have been and is currently working at the same school as a full-time educator.
4.100 He referred to a letter on page 53 of bundle B which he (Khuzwayo) wrote to the Ward Manager after he had approached Mhlongo to verify the allegations. His letter is consistent with the letter which Mhlongo himself wrote to the Ward Manager.
4.101 He stated that Mhlongo was attending at school except when he was sick or writing exams. He dismissed the investigation report on this issue as biased and contradictory. He found it to be strange that Tracy Nkosi, the Respondent’s 4th witness alluded to the fact that the attendance registers were fake when it was the respondent itself which presented the attendance registers.
4.102 During cross-examination he stated that Gasa, 2nd Respondent’s witness and administration clerk, came from Sbonelo High School and was confirmed in 2010. The school (Sivananda) did not have a designated clerk and clerks were used on roaster from Elangeni College. She (Gasa) had been used in 2009.
4.103 When it was put to him that Gasa said that she came in May 2010 and collected moneys for the first time in October 2010 he stated that Gasa came in 2009 but the monies were collected in 2009 for the 2010 school year. He was not sure when the SGB was established but he thought it was in 2010. He went to the bank to try to open an account in 2009.
4.104 He explained that the procedure for spending money is that monies must be budgeted for. Gasa in her evidence confirmed that the awards function did take place. He (Khuzwayo) never received any training on the finances of the school. There was no such requirement for the post.
4.105 He was referred to page 229 of bundle A, a route form which he had signed, page 252 of the same bundle, placement of students and to page 17 of the bundle, Mhlongo’s evidence at the disciplinary hearing and then it was put to him that he knew that Mhlongo was a full time student. His response was that he was signing that the school was hiring him as a temporary educator and denied that he knew that he (Mhlongo) was a full-time student.
4.106 During re-examination he stated that the process of unbundling was around 2009. He stated that it is worriying that Dr Swart does not have forensic qualifications. His report put him in an awkward and painful position and got him dismissed.
4.107 Phiwayinkosi Mhlongo testified that he wrote the letter which appears on page 52 of bundle B. The purpose was to apologise to the circuit office, Thusi and Nkosi for being a full-time student. He did not inform the Principal (Khuzwayo) that he was a full-time student.
4.108 He denied that at the hearing he said that the Principal was aware and stated that if the hearing was recorded, the record would confirm what he is saying. He explained that when he was employed at Sivananda in 2012 he was a UTE i.e unprotected Temporary Educator and not a full-time employee.
4.109 He stated that he was present at school until the contract expired except when he was writing exams or he was sick. He was not always absent as alleged by the Respondent.
4.110 He filled in forms when he started as a UTE and gave them to the administration clerk, Velile Gasa. He testified that the letter which appears on 252 of bundle A, placement of students from Edgewood, and addressed to the Principal, does not state that he (Mhlongo) was a full-time student.
4.111 During cross examination he stated that he was registered as a full-time student but attended on a part-time basis. The only time the Principal (Khuzwayo) approached him to verify his student status was in 2010 after doing practicals at the school.
5. Closing Arguments
5.1 Preethpaul submitted that the Respondent had proven on a balance of probabilities that the Applicant was found guilty and dismissed for a fair reason and after following a fair procedure.
5.2 In order to determine whether a dismissal is fair or not, cognisance can and should be taken of “new” evidence or changed evidence and the like presented at arbitration, as well as that which was presented at the disciplinary hearing.
5.3 This principle is supported by the well known “Sidumo” court case where it is stated. “This determination (whether a disputed dismissal was fair) and the assessment of fairness is not limited to what occurred in the disciplinary hearing. “Not limited to” does not mean exclude but means it is included as one of the considerations but is not the sole consideration.
5.4 Also, given that the accepted principle is that the decision of a commissioner would be a reasonable decision (even if another adjudicator might have came to another conclusion given the same set of facts), it would be expected that the same would apply in consideration of the findings of the disciplinary hearing and the sanction of dismissal in this case. Else, it would render discipline hearings as pointless.
5.5 He further submitted that the Principal has various duties related to the finances of the school such as advising the SGB on financial matters, assisting the SGB in financial matters, etc.
5.6 The Principal, by virtue of the position he holds as both Principal and representative of the employer in the SGB, has responsibility and accountability to his employer to ensure that the school’s finances and/ or school fund records are in order.
5.7 It is a matter of semantics as to whether the Principal causes, allows or mismanages school funds when there is a failure in the control and management of school funds in accordance with the rules or proper accounting practices. The Principal will be failing in his duties if he fails to adviseand guide the SGB(or fails to report to the employer the failure of the SGB to adhere to the rules and regulations despite the Principal’s advice to the SGB)
5.8 The Principal becomes party to the misuse, maladministration or mismanagement or breach of the rules where he/she fails to act on, or commits the breaches, it is clear in the charges brought against the Applicant that he is alleged to have failed in his duties.
5.9 He is aware of what these failures as alleged are. The testimony given and his challenges to the testimony demonstrate his understanding of what he is faced with by each charge.
5.10 What is relevant is whether the Applicant was party to mismanagement/ maladministration, where, semantic aside and in a general sense this refers to his :
a) Failure to ensure that the rules of proper financial management are adhered to in respect of the school finances.
b) Failure to properly advise and assist the SGB in its statutory functions relating to the school’s finances; and/or
c) Failure in his responsibility to report to the SGB or his employer when these rules are breached.
5.11 He proceeded to deal with charge 1-count 1 and submitted that in 2010 the Applicant, the Principal of the school at that time is alleged as per this charge and count to have mismanaged admission fees amounting to R29, 700, collected from the learners in respect of 2011 academic year.
5.12 The applicant did not deny receiving the monies from Ms Gasa. His only defence was that he had received the monies in 2009 which he banked. Cognisance must he taken of the fact that around October of each year an amount more or less the same amount was received by the school . Ms Gasa stated that in 2010 an amount of R29, 700 was received and in terms of paragraph 8.4.10 on page 119(bundle A) of the investigation report, on amount of R29, 300 was received in October 2011.
5.13 Dr Swarts’ undisputed evidence is that as of the date of his investigation the monies were not banked. The Applicant by virtue of his position as Principal is ultimately responsible for the receipt and banking of the monies. He did not give any explanation with regard to why these monies received in 2010 were not banked.
5.14 Mr Ngcobo testified that whilst he was on the SGB he was not notified of meetings. At a meeting with the Circuit Manager he learnt that the monies were used as a bribe by the Applicant for a promotion to the position of the Principal for the school. This could be the most probable explanation for the monies not being banked. Coincidentally, the selection process for the promotion took place in the same year. To cover-up his misconduct, he has misdirected the arbitration that these monies were received and banked in 2009.
5.15 Whilst the Applicant claim’s that he was not given training regarding school finances, it is important to note that he banked monies in 2009 and 2011. It must therefore he accepted that he was fully aware that he had to bank the monies but failed to do so for the reasons advanced by Mr Ngcobo.
5.16 Further more, he also testified that, at that stage, the school did not have an SGB. In this regard, he banked only R20, 660 into the college account. The balance of the monies was used for expenses as reflected on pages B10 to B12. These documents are invoices and as such do not serve as proof of payment.
5.17 Mr Ngcobo’s undisputed evidence indicates that he was elected as Deputy Chairperson of the SGB prior to 2010. The SGB took over the school after the unbundling. It was the Applicant’s evidence that the school was unbundled in 2009. Therefore his evidence that the school did not have an SGB in 2009 must he regarded as untruthful as Mr Ngcobo’s evidence in this regard was not challenged. His(Ngcobo) evidence that the Chairperson did not invite him to the SGB meetings was also not challenged.
5.18 One would have expected Mr Ngcobo’s evidence to be rebutted by putting a version to him that he was untruthful about when the SGB was elected. In the absence of such rebuttal, the Applicant’s evidence in this regard should be regarded as untruthful and therefore in admissible.
5.19 The school’s bank account was opened on 21 January 2010 (page B59). According to the South African schools Act of 1996 only an SGB can open an account for the school. Therefore in January 2010, an SGB had to be in place to open an account. The only evidence before the panellist is that of Mr Ngcobo which indicates that he was elected as Deputy chair prior to 2010.
5.20 Therefore the SGB was in place in 2009. The Applicant did not present any evidence to the countrary. The only reason the Applicant would lie in this regard is to create a doubt regarding the period when the monies were collected and for his version that the monies were collected in 2009 and net 2010 as indicated in the charge to be accepted.
5.21 Mr Gasa testified that she was appointed at Sivananda High school on 8 May 2010. Under cross examination she confirmed categorically that in 2009 she did not carry out any financial duties for the school. She only collected admission fees in 2010 and she was advised by the Applicant to record the monies received on the collection sheets (pages B73-79).
5.22 Dr. Swarts confirmed Ms Gasa’s testimony in that in his investigation he examined the records of the school. His findings were that an amount of R29,700 was collected in 2010. These monies were not banked as late as 2012 when he conducted his investigation. The Applicant did not furnish him with any explanation for this.
5.23 With regard to Dr Swart’s competence in financial management of school finances, Dr Swart testified that he was fully competent as he has served the Department for many years, inter alia, as Principal of a school, Ward Manager and conducted many training workshops for Principals. He also has a B com degree which equips him adequately for financial management.
5.24 Whilst the Applicant’s representative argued that an investigation officer must have a special qualification to conduct investigations, this is not a requirement in any state department. It is simply expected that the investigating officer is reasonably competent and that is why the employer appointed Dr Swart. Besides, in regard to testimony regarding the charges one is not relying on the investigation but on information used as evidence, in this case to prove mismanagement of funds. Therefore on a balance of probabilities, he should be found guilty on count 1 of charge 1.
5.25 With regard to count 2 of charge 1 the Applicant confirmed that he had taken R2, 000, 00 for the Awards function held in 2011. He has not provided any substantial proof at the arbitration hearing that he had in fact used the monies for that purpose. According to Dr Swart’s undisputed evidence it is a department requirement. The Applicant failed to submit such proof during the investigation. He also failed to provide proof at the disciplinary enquiry as well as at arbitration, so he is guilty of mismanaging these monies. Therefore, on a balance of probabilities, he should be found guilty on count 2 of charge 1.
5.26 With regard to count 4 and 5 of charge 1 the Applicant’s defence seems to be that he was not trained and therefore was ignorant of these rules. He had banked monies received in 2009 and 2011. It was only in 2010, an intervening period, that he did not bank monies. It must be concluded that he was fully aware of these rules and chose not to receipt and bank the monies as he wanted to use them for his own purpose. Therefore, on a balance of probabilities, he should be found guilty on court 4 and 5 of charge 1.
5.27 With regard to charge 3, the only defence the Applicant put up is that he was not aware that Mr P. Mhlongo was a full time student. The document from the University clearly indicates that Mhlongo is one of the students referred to the school to do in-service training. Furthermore, Mr Thusi confirmed that the letter from the university must first come to the Applicant as Principal of the school. The Applicant did not deny having received the letter.
5.28 Most importantly, if the Applicant did not become aware of Mhlongo’s full time studies through the letter from the university, he was made aware of this subsequently. Despite being aware he did not recommend to the department to terminate his services at that stage. It should therefore be accepted on a balance of probabilities, that he had knowledge of Mhlongo’s status and dishonestly allowed him to be employed full time whilst he was a full time student.
5.29 Cognisance must be taken of the fact that the Applicant signed all documents in order for the appointment to be approved. He allowed the situation to continue even after he became aware. Therefore, on a balance of probabilities, he should be found guilty on charge 3.
5.30 it is therefore prayed that the Panelist dismisses the Applicant’s dispute and confirms the sanction of dismissal.
5.31 Advocate Kadungure submitted that the Applicant was dismissed in May 2014 for misconduct. He (Applicant) appealed against the sanction and his appeal was only considered by the MEC 2016. Thereafter he lodged a case of unfair dismissal which was heard under the auspices of the ELRC.
5.32 In terms of section 192 of the Labour Relations Act of 1995, as amended:
5.32.1 In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal, and
5.32.2 If the existence of the dismissal is established, the employer must prove that the dismissal was fair.
5.33 It further follows that a finding of misconduct will only be fair if:
5.33.1 The worker broke a rule of conduct in the workplace;
5.33.2 The rule was reasonable and necessary;
5.33.3 The worker knew of or should have known of the rule;
5.33.4 The employer applied the rule consistently (i.e. there are no other workers who have been allowed to get away with this misconduct); and;
5.33.5 It is appropriate to dismiss the worker for this reason, rather than taking disciplinary action or imposing a lesser penalty such as a final warning.
5.34 In order to effectively analyse the evidence presented by the employer at the hearing these heads of arguments shall first deal with the investigation report which is the source of the charges against the Applicant and deal with the charges themselves,
5.35 The employer did not call the author of the investigation report titled “investigation of the circumstances causing dysfunctionality at Sivananda Technical High School” to testify at the hearing. This despite the fact that the investigation report is the source of the chargers against the Applicant.
5.36 Nor was evidence led on the methodology used by the unknown authors of the report or how such authors arrived at the conclusion that the Applicant was guilty of the offences with which he was charged.
5.37 As an afterthought the employer presented a further report drafted by one DR L.P Swart who did testify at the hearing. The report and evidence presented by DR Swart was riddled with mistakes and / or errors regarding dates and it was clear that his report was limited in scope. He was also unable to produce evidence that he had been duly authorised to carry out the investigation.
5.38 When his attention was drawn to the affidavits by the former chairperson and secretary of the school’s governing body contained in bundle B, it became clear that DR Swart had not consulted with either of them. He further disputed the evidence showing that the Applicant had not misused or mismanaged the school funds but was unable to provide grounds for his view.
5.39 Although the employer was at pains to link the report of Dr Swart to the report titled “investigation of the circumstances causing dysfunctionality at Sivananda Technical High School”, it is submitted that the former was not the report that the employer relied on in its chargers.
5.40 In the premises, there has been no credible evidence presented by the employer on the veracity of the allegations made in the report titled “investigation of the circumstances causing dysfunctionality at Sivananda Technical High School” which it used in charging the employee.
5.41 Although the investigation report from which the chargers emanate has been proven as lacking in credibility, the following evidential analysis should be taken into cognisance : it was common cause at the hearing that;
5.41.1 With respect to charge 1 it was recorded that counts 1 and 2 were linked to counts 3 and 4 respectively.
5.41.2 While the employer initially informed the Applicants representatives on the record that charge 2 relating to poor performance, was not going to be pursued , it later decided to pursue it and attempted to link the charge to paragraphs 8.4.9 and 8.4.10 of the investigation report.
5.41.3 Charge 3 was amended to read that “in that on or about 2010, 2011 and 2012 at or near Sivananda Technical High School you committed gross misconduct in that you allowed Mr S.P Mhlongo to be a full-time employee while he was a full-time student. You thereby contravened section 18 (1) (ee) of the Act, “
5.41.4 The remaining chargers were dropped and the employee not found guilty on those charges.
Charge 1, Count 1 (linked to count 3)
5.42 In respect of this charge, the Applicant was alleged to have mismanaged admission fees paid in 2010 in respect of grade 8 learners for the 2011 academic year as demonstrated in paragraph 8.4.9 of the report.
5.43 That paragraph of the report recorded that R29, 700.00 was allocated as admission fees from “new” grade 8 Velile Gasa, the school’s Finance Officer, which amount was not deposited into the school fund.
5.44 The first witness led, Mr Ngcobo, testified on this charge but appeared to have no intimate knowledge of how the aforesaid R29, 700.00 was used. Instead, he resorted to unsubstantiated defamatory an outrageous statements that the money was used to bribe someone to secure the position of principal for the Applicant.
5.45 The second witness, Ms Gasa, acknowledged that R29,700 was indeed paid but could not clearly identify where the money was now. She was referred to bundle B which clearly showed that an amount of R20, 660.00 was deposited into the Elangeni FET account on 18 January 2010 due to the absence at that time of a Sivananda Technical School account. The balance of that amount was used for repairs that were necessary in order for the school to function. The two amounts together totalled the aforesaid R29, 700.00.
5.46 Initially the school had no bank account and, when the Applicant tried to open one on its behalf, he was advised at the Pavilion branch that only the school governing body could do so. The Applicant’s testimony regarding the absence of Sivananda Technical Scholl account at that time was confirmed by the current school account which clearly shows that it was only opened on 21 January 2010.
5.47 It should be noted that the Applicant clearly states that the aforesaid amount was collected in 2009 for the 2010 school year. The Applicant’s evidence that the school was only unbundled from FET in 2009 is not disputed. In fact, it is supported by the report itself in the second line of paragraph 8.4.9 which reads, “ADMISSION FEES from new grade 8 learners.”
5.48 Nor can it be disputed that the collection of money was the first collection for the school and that, in, the absence of an existing bank account the Applicant managed the R29, 700.00 as best he could.
5.49 The breakdown of how the funds were utilised follows hereunder.
5.49.1 in an amount of R 20,660.00 was deposited in the Elangeni FET account since Sivananda had no account of its own.
5.49.2 an amount of R 6,280.00 was used to repair the girls’ toilet and to put in two new flushing systems which included labour by the school contractor.
5.49.3 an amount of R 1,810.00 was used to replace non – functioning lights and included labour by the school contractor.
5.49.4 an amount of R950.00 was the cost of replacing a faulty tap.
5.50 in the premises, it is submitted that the aforesaid use of the money and depositing of funds into the Elangeni FET account was reasonable. There was therefore no evidence of misconduct proven against the Applicant on this charge.
Count 2 (Linked to count 4)
5.51 in count 2 the Applicant was charged for mismanagement of the sum of R2,000.00 which allegation was substantiated only by the report of the unknown author.
5.52 The employer’s own witness Ms Gasa who as finance officer had a responsibility of invoicing had testified that the money was used for an awards function. The Applicant collaborated that evidence and stated that it was common practice for that sum to be used for an awards function.
5.53 The employer did not lead any further evidence disputing the evidence that Ms Gasa as finance clerk was responsible for invoicing and it was clear from the Applicants evidence that Ms Gasa was responsible for such administrative functions and not he principal.
5.54 Once again there was no element of misconduct or mismanagement of funds proven as it was the evidence of the employers own witness that the money was used for a school function and invoicing was a clerical function and not the responsibility of the Applicant an Principal.
5.55 After evidence was led of other school using Ngwenya and/or Dinangwe, the employer decided to place it on record that the chargers related to this count would be dropped. In fact the employer’s witness, Ms Nkosi, confirmed the aforesaid use of Ngwenya and associates when she was referred to pages 80 to 99 of bundle B.
5.56 Inconsistency was clearly established and the charge was dropped. There is, therefore, no need to analyse same herein.
5.57 This charge relates to the Applicant’s alleged poor performance and was linked to paragraphs 8.4.9 and 8.4.10 of the aforementioned unsubstantiated investigation report.
5.58 It must be noted that Mr McCord Ngcobo testified on this charge himself to the fact that he had a poor working relationship with the Applicant. The obvious conclusion to be drawn from Ngcobo’s concession goes to the heart of the difficulty the Applicant faced being required to perform the impossible task of advising Mr Ngcobo who was hostile to him.
5.59 It also appears that, in view of the affidavits on pages 66 and 67 of the employee’s bundle, deposed to by Msimbithi Julius Nkwanyana (the former chairperson of the governing body) and the former treasurer of the governing body, that Ngcobo was not a credible witness.
5.60 The aforesaid affidavits clearly state, at pages 67 and 68, that the finances of the school were in order contrary to the defamatory allegations of bribery made by Mr Ngcobo which were disproven by the evidence led as to the disposition of the R29,700.00 above.
5.61 There was, otherwise, no evidence led from the author of the report which was the source of the charge and since Mr Ngcobo’s testimony was both unsound and contradicted by the other witnesses, the charge relating to poor performance is clearly without merit and should be dismissed.
5.62 Charge 3 relates to gross misconduct in that the Applicant allowed one Mr S.P Mhlongo to hold the position of full-time employee whilst he was a full-time student. However, the employer’s witnesses did not establish any gross dishonesty. Ms Nkosi testified that Mr Mhlongo was not attending classes which was disproved by the employers own attendance registers which demonstrated that he had attended the school.
5.63 The employer further tried to use a purported placement letter as evidence but, in cross- examination, it was conceded by Ms Nkosi that there were no words stating that Mr Mhlongo was a full-time student.
5.64 Further to the evidence of the employer, the Applicant gave evidence that he was not aware of Mr Mhlongo “being a full-time student” which was collaborated by documentary evidence in bundle B page 52. Mr Mhlongo himself stated that he did not tell the Applicant that he was a full-time student and that his conduct was inappropriate.
5.65 Mr Mhlongo further confirmed that the chairperson of the hearing had manipulated the findings by incorrectly recording that he had testified that he had informed the Applicant that he was a full-time student.
5.66 The chairperson of the hearing was not called to dispute his findings and the evidence of the Applicant was therefore uncontested.
5.67 Mr Mhlongo’s evidence was further collaborated by the Applicant himself who testified that he was not made aware of the fact that Mhlongo was a full-time student.
5.68 There is another aspect to this charge in that it appears that the Applicant had been wrongly charged because Mr Mhlongo was employed as a temporary educator not a full-time student. The employer did not amend the charge, however, which should therefore be set aside as no evidence of impropriety was led.
5.69 I, accordingly submit that the employer has failed to establish that the Applicant broke a rule of conduct in the workplace. No evidence has been led which establishes misconduct and no circular was produced to show that the Applicant had broken any rule.
5.70 In fact, the unknown author of the report which is the source of the charges never testified on his recommendations or the methodology he used in collecting evidence. The after thought report of Dr Swart was also not useful as it was not only riddled with errors but there was no evidence that the report had been authorised by the MEC.
5.71 Furthermore, nothing has been proven to show the Applicant knew of the rule (if any such existed) or should have known of such rule. Conversely, what was established in charge 3 was that the employer applied the “rule” inconsistently in not charging other school principals who had continued to use Ngwenya and Associates even up to 2016.
5.72 The employer did not lead any evidence on the breakdown of the trust relationship between it and the Applicant. An employer cannot only allege a breakdown in the trust relationship, evidence must be led proving same.
5.73 In the matter of Woolworths (pty) Ltd v Mabija and others (PA3/14) (2016) ZALAC 5; (2016) 5 BLLR 454 (LAC) (19 February 2016), it was held that the arbitrator must be made aware in determining whether the dismissal for misconduct was fair, whether the trust relationship has been broken.
5.74 In this case the supervisor did not testify that the trust relationship had been destroyed and did not testify as to what the impact of this incident was on the trust relationship. The LAC accordingly dismissed the appeal against the reinstatement of the employee.
5.75 It is clear from the aforesaid decision that it is insufficient for an employer to merely allege a breakdown in the trust relationship. Evidence must be lad at the discipline enquiry and arbitration to show specific instances of how an employee’s misconduct destroyed the trust relationship.
5.76 The review court in the aforesaid case stated that “…it is not enough for an employer to merely state that the trust relationship has broken down. It is necessary for evidence to be led to prove the breakdown of the trust relationship.” It also found that the trust relationship does not automatically breakdown each time an employee commits misconduct.
5.77 The SCA in Edcon Ltd v Pillimer NO and others (2009) 30 ILJ (SCA) [at para 19] stated that “The fact that the employer did not lead evidence as to the breakdown of the trust relationship does not necessarily mean that the conduct of the employee, regardless of it’s obvious gross seriousness or dishonestly, cannot be visited with dismissal without any evidence as to the impact of the misconduct.
5.78 In some cases, the outstandingly bad conduct of the employee would warrant an inference that the trust relationship has been destroyed. It is however always better if such evidence is led by people who are in a position to testify to such breakdown.
5.79 In short, an employer is required to lead proper evidence of a breakdown in the trust relationship or face the prospect of reinstatement. In the case at hand, the employer’s representative did not lead evidence on the same. Nor did it lead evidence on any prejudice that will be suffered by the employer if the Applicant is reinstated.
5.80 In the premises the Applicant prays for an order:
5.79.1 Of reinstatement to the position that he previously occupied, subject to the caveat that, if the position is no longer available, he be placed in a similar position at another school on the same salary he earned before his dismissal.
5.79.2 That he be paid all outstanding salary due to him to be calculated based on the salary which he earned from the date of his dismissal to the date of granting of this award.
6. Analysis of Evidence and Argument
6.1 Section 33 (1) of the Constitution of the Republic of South Africa states that everyone has the right to administrative action that is lawful, reasonable and procedurally fair. Section 23 (1) provides that everyone has the right to Fair labour practices.
6.2 Item 2(1) of the Code of Good Practice: Dismissal, provides that a dismissal is unfair If it is not effected for a fair reason and in accordance with a fair procedure. Item 4 (1) states that the employer should conduct an investigation to determine whether there are grounds for dismissal.
6.3 The definition accorded to misconduct in labour law is that it is conduct which contravenes either the rules or policies established by the employer and/or is a criminal offence.
6.4 In the present case I examined the oral evidence presented and duly perused the bundles of documents and annexures submitted. During the evidence a number of objective facts were placed before the tribunal which emanate in the main from the Applicant’s conduct which gave rise to the dispute, and his explanation for that conduct.
6.5 In Tokwe v SABC & Others JR113/08 (Unreported) the Labour Court held that the Commissioner has to ask himself or herself whether the employer’s decision, taking into account the totality of the circumstances of the case, is in the circumstances of that particular case, fair.
6.6 It is common cause that Sivananda Technical High School was sharing premises with Elangeni FET College. It is further common cause that at some stage during this co-existence, Sivananda Technical High School neither had school governing body nor a school fund bank account.
6.7 In addition to these anomalous situations, there were factions in the school governing body when it was in place. The division gave rise to the frustration and difficulties leading to instances of a breakdown in effective and harmonious school governance.
6.8 At the hearing no evidence was led regarding the existence of any regulatory policy framework to manage these anomalies, instead the focus was on the Applicant’s approaches to these anomalies. The question to be answered is whether the Applicant’s conduct befits the definition of misconduct as set out in paragraph 6.3 above.
6.9 I record that I find no basis on which it can be said that the Applicant committed misconduct i.e that he mismanaged admission fees nor can it be said that he was guilty of poor performance as alleged by the Respondent.
6.10 I further record that I found the Applicant to be a credible witness whose evidence was supported in the main by documentary evidence as well as the Respondent’s own witnesses, as it will be apparent as I deal with the charges and the evidence in the succeeding paragraphs.
6.11 On charge 1 count 1 (linked to count 3) the evidence established that the school account was opened on 21 January 2010. The money which was collected was from “new” grade 8 learners and it was the first collection for the school and because the school did not have a bank account, the money was deposited in the Elangeni FET account and the balance was used for matric awards function and for maintenance purposes.
6.12 It is probable that the money was collected in 2009. It is inconceivable why the Respondent places the collection of the money in 2010. The Respondent’s own witness and author of the investigation report, Dr Swart conceded that if he had all this information on how the money was utilized, his views would have been changed.
6.13 The Respondent heavily relied on McCord’s evidence that he learnt at a meeting with the Circuit Manager that the money was used as a bribe by the Applicant for promotion to Principal. I record that no evidence was led to substantiate this claim nor did anyone who attended that meeting testified at the hearing, except McCord himself.
6.14 Fortunate confirmed that the school fund account was opened in January 2010 and that the matric awards function did take place. She further did not dispute the expenditure for maintenance purposes at the school. Although her evidence was that she was employed on 8 May 2010 and that prior to 2010 she was employed at Elangeni and did not deal with financial matters pertaining to Sivananda as an Administration Clerk, she did not dispute the Applicant’s evidence that different clerks, were used on roaster from the College in 2009 when Sivananda was under the administration of the College.
6.15 On charge 1 count 2 (linked to count 4) Fortunate Gasa confirmed in her evidence that the amount of R2,000 was used for a school function i.e matric awards. Her evidence supports the Applicant’s version that there was no mismanagement. The only difference again is that the Respondent places this expenditure in 2010 rather than in 2009 as contended by the Applicant.
6.16 On Charge 2, the Applicant’s evidence was that McCord wanted him out of the school and tried to discredit him. His life was threatened and attempts were made to bar him from reporting for duty through text messages.
6.17 McCord himself confirmed that he had a poor working relationship with the Applicant. His testimony confirms the lack of the expected level of co-operation between himself and the Applicant as well as the intensity of the degree of the divisions which existed within the school governing body.
6.18 The evidence established that according to the former chairperson of the school governing body and the former treasurer of the governing body, the finances of the school were in order. It then begs the question why it would be said that the Applicant was guilty of poor performance as alleged by the Respondent.
6.19 On charge 3, perhaps the point of departure ought to be the question whether Mhlongo was a full-time employee as alleged by the Respondent. The evidence established that Mhlongo was a temporary educator. The Applicant was not aware that he was a full-time student. Mhlongo did not disclose to the Applicant or to the school that he was a full-time student. The Applicant acted on this after he had approached him to verify his status.
6.20 On the issue of the investigation itself, it would appear that no proper investigation was conducted in order to determine whether there are grounds for dismissal. The author of the first report on the circumstances causing dysfunctionality at Sivananda School did not testify.
6.21 This report actually formed the basis of the allegations which the Applicant faced at the hearing and yet no evidence was led at arbitration regarding the nature and extent of the Applicant’s role in causing dysfunctionailty at the school, if any, in terms of the report, nor was any evidence led on the reasons for the recommendations that were made.
6.22 The second report by Dr Swart has also not been useful. Apart from his concession that if he had all the information at the time of his investigation, his views would probably have been changed, his report is full of material errors and contradictions.
6.23 Furthermore he did not consult with the people whose information was crucial in order for him to produce a balanced report. The former chairperson of the SGB and the former treasurer of the SGB were amongst those who were not interviewed and no reasons were furnished for this. According to them there was no problem with the finances of the school.
6.24 The evidence established that there were factions and deep divisions within the SGB. The Applicant’s evidence was that certain individuals wanted him out of the school and tried to discredit him. It is my finding that these divisions played a huge role in the formulation of charges and in the investigation of the matter itself.
6.25 Firstly there was the issue of the so called “concerned parents” whose report sparked off a meeting at which McCord apparently learnt that the Applicant paid a bribe in order to secure the post of Principal. During the interview in Pinetown the panellists focussed and insisted on the Applicant to explain about the money he had paid as a bribe.
6.26 At arbitration it was the Respondent’s case, relying on McCord’s testimony that the only reason why the Applicant according to it did not deposit the money, was because he had used it as a bribe. I must point out that no evidence was led to substantiate this claim.
6.27 It is probable that when the whistle was blown the Respondent regarded the claims as being real and with substance. It is further probable that as a result thereof the investigations which followed thereafter did not diligently enquire into the matter, and as a result failed to separate facts from fiction, with the end result that the Respondent misdirected itself.
6.28 In these circumstances it is my finding on a balance of probabilities that the dismissal of the Applicant was substantively unfair. If that was no the case it is inconceivable why the Respondent did not lay criminal charges against the Applicant in a matter which would have such a huge public interest. I am aware of and also considered the provisions of Item 7 of the Code of Good Practice: Dismissal, in making this determination. Furthermore the chairperson of the disciplinary enquiry did not testify. Mhlongo testified that his evidence at the hearing was manipulated regarding his student status and whether the Applicant was aware that he was a full-time student.
6.29 The purpose of the Labour Relations Act is to resolve disputes expeditiously. There was no explanation why it took the Respondent such a particularly long period to make a pronouncement on the appeal by the Applicant against the finding of the chairperson of the disciplinary enquiry.
6.30 It is my further finding, on a balance of probabilities that the dismissal of the Applicant was also procedurally unfair.
6.31 The Applicant is entitle to be reinstated because that is the relief he has asked for. In terms of section 193(2) of the Labour Relations Act 66 of 1995, as amended, the Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless:
6.31.1 the employee does not wish to be reinstated or re-employed;
6.31.2 the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;
6.31.3 it is not reasonably practicable for the employer to reinstate or re-employ the employee; or
6.31.4 the dismissal is unfair only because the employer did not follow a fair procedure.
6.32 In National Union of Mineworkers & Another v Commission for Conciliation & Mediation& Arbitration& Others (2007)28 ILJ402 (LC), the Court stated as follows: “The provisions of section193(2) of the Act are clear. They are couched in peremptory terms and do not provide this Court or an arbitrator with any discretion. Unless an employee does not seek to be reinstated or the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable or it is not reasonably practical for the employer to reinstate the employee or the dismissal is only found to be procedurally unfair, the Court or Arbitrator must reinstate the employee”
6.33 The Court emphasised that evidence must be led by the employer to prove that the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable or that it is not reasonably practicable for the employer to reinstate the employee. In the present case the employer did not lead any evidence in this regard.
6.34 Reinstatement with full retrospective effect comes with back pay and so the Applicant is entitled to back pay from the date of dismissal to the date of this arbitration award at the salary he earned at the time of dismissal.
6.35 The amount awarded to the Applicant is calculated as follows:
R41,178.75 x 27, back pay equivalent to twenty seven months’ remuneration i.e salary from August 2016 to November/December 2018 = R1,111,826.25
I make the following award:
7.1 The dismissal of the Applicant, Khuzwayo S.C, is declared to be
Substantively and procedurally unfair.
7.2 The Respondent, Department of Education, KwaZulu Natal, is ordered to re-instate the Applicant retrospectively in its employment to the position that he previously occupied at Sivananda Technical High School as Principal.
7.3 If the position is no longer available, the Respondent is ordered to place the Applicant in a similar position at another school on the same salary he earned before his dismissal.
7.4 The Respondent is further ordered to pay the Applicant arrear salary in the amount of R1,111,826.25 (One Million One Hundred and Eleven Thousand Eight hundred and Twenty-Six Rand and Twenty-Five Cents).
7.5 The Respondent must pay the Applicant the amount set out in paragraph 7.4 above within 14 days of being notified of this award.
7.6 The Applicant must report for duty within 3 days of being notified of this award.
TP Cele (Panelist)