PSES 363-18/19
PSES 363-18/19
Award Date:
11 December 2018
Case Number: Case No: PSES 363-18/19
Province: Western Cape
Applicant: SADTU obo V A Cupido
Respondent: Department of Education Western Cape
Issue: Unfair Dismissal - Constructive Dismissal
Venue: Western Cape Education Department (WCED), Golden Acre Building, Cape Town
Award Date: 11 December 2018
Arbitrator: Retief Olivier
Arbitrator: Retief Olivier
Date of Award: 11 December 2018
SADTU obo V A Cupido Applicant
and
Western Cape Education Department Respondent
Applicant representative: C M Mgubanto - SADTU
Union/Applicant’s address
Telephone:
Telefax:
Respondent: Western Cape Education Department
Respondent’s representative: C Hanekom
Private Bag X9114
Cape Town 8000
Telephone: 021 - 467 2846
Telefax: 021 – 425 8612
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing took place at the offices of the Western Cape Education Department (WCED), Golden Acre Building, Cape Town, on 23 November 2018. The applicant was represented by Mr C M Mgubanto from SADTU. The respondent was represented by Ms C Hanekom, labour relations official. It was also agreed that written closing arguments would be submitted by not later than 30 November 2018.
ISSUE TO BE DECIDED
2. The Applicant referred the matter to the Bargaining Council as an unfair dismissal dispute. The Applicant was found guilty in a disciplinary hearing on three charges, and was given a sanction of a final written warning. The respondent appealed this decision and the appeal was upheld and the sanction was changed to a dismissal. The applicant submitted that this was unfair and the sanction of dismissal was too harsh. The applicant did not dispute the finding of guilty on the three chargers. I must therefore only decide whether the sanction of dismissal was fair.
3. Procedural aspects were not in dispute.
BACKGROUND TO THE ISSUE
4. The applicant Ms Cupido had been employed as an educator with the WCED for 17 years, and had been working as a grade 10,11 and 12 teacher at Rusthof High School in the Strand. She was charged with the following three offences:
Charge 1: Section 18 (1) of the Employment of Educators Act, 76 of 1988 for misconduct, in that she, during the second quarter of 2017, committed an act of dishonesty by allocating marks to grade 10 and 11 learners, for the first the additional language assessment assignments/ tests without the scripts being marked.
Charge 2: Section 18 (1) (i) of the Act for misconduct in that she on or about the 26th June 2017 refused to obey a legal instruction or command without any reasonable excuse or failed to submit the First Additional Language scripts grades 10-12 within the set time.
Charge 3: Section 18 (l) (i) of the Act in that she on or about the 29th June 2017 failed to obey a legal instructional by Kumon without any reasonable excuse, or failed to attend the meeting requested by the principal.
5. The chairperson of the disciplinary hearing found her guilty on all three charges, and noted in his finding that her conduct might even easily qualify as a dismissible offense. However in the mitigating arguments submitted after the finding of being guilty of the charges were made, the applicant submitted a clinical assessment report from ICAS, to which the applicant had been referred too because she was experiencing personal problems, and this report then addressed psycho social and interpersonal issues, and noted that these conditions negatively impacted on her functioning in the work. On the basis of this report the chairperson of a disciplinary hearing found sufficient mitigating evidence not to dismiss the applicant, but issued her with a final written warning. The ICAS report however was not submitted as evidence during the disciplinary hearing.
6. The respondent appealed this outcome to the MEC of Education, indicating that the evidence presented regarding the offenses and the seriousness of the charges, warranted a dismissal. It was acknowledged that the respondent was entitled to appeal the chairperson’s finding in respect of policy prescripts. The MEC for Education considered the appeal and amended the final written warning to a dismissal. The MEC for Education issued the appeal outcome on 7 October 2018 and the applicant was subsequently dismissed. The applicant disputed this appeal finding and submitted that the sanction of dismissal was too harsh, considering the mitigating evidence as noted in the ICAS report.
SURVEY OF EVIDENCE AND ARGUMENT
7. Each party only called one witness to testify and submitted written closing arguments. Bundles of documents were also submitted as evidence. Although I have considered all the evidence and arguments I am only referring to those aspects relevant to determine the dispute and brief summaries of evidence, as I am required in terms of sec 138(7) of the LRA to provide an award with brief reasons.
Employer’s version:
8. Advocate Lynn Coleridge – Zils, director policy coordination and advisor in the MEC’s office, testified and referred to the appeal submission of the findings of the chairperson, noting the MEC regarded the misconduct of the applicant as very serious. The applicant pleaded guilty to these very serious charges that included dishonesty, failing to submit scripts, and refusing to adhere to instructions. The chairperson in his findings in fact confirmed the seriousness of these allegationswarranted dismissal. The applicant acknowledged that she marked learners’ scripts and had learners on her mark sheets that were no longer associated with the school. This resulted in learners in grade 12 not being able do apply to tertiary institutions, thereby jeopardizing their future. Assessments of learners are to be taken very seriously, and an experienced educator should not have misled the principal and the HOD. The integrity of the results are key and in this respect the applicant failed the School, the leaners and the WCED.
9. The applicant also often absented herself from school. The school made an effort to assist her, by referring her to ICAS, but the applicant did not even attend all the sessions, and provided no feedback to the school or asked for any help from the school. When the chairperson considered the ICAS report, the School had no opportunity to rebut the report and address the chairperson on the report. This was a material irregularity. The employer provided support to the applicant, but the applicant did not reciprocate. The finding of the chairperson that the employer failed the applicant can therefore not stand, particularly because the employer was also not afforded the opportunity to explain their support to the applicant. The employer in fact made numerous attempts to support the applicant, but the applicant never indicated that she needed help and spurned the attempts of the employer to assist.
10. During cross-examination she reiterated that the MEC applied her mind and considered the seriousness of these offenses and the impact it had on the learners and on the school, and the fact that the applicant was an experienced educator, and that this was completely unacceptable and her experience was in fact an aggravating factor.
11. In closing the respondent submitted that the charges were serious and referred to Grogan J, in Dismissal, 1st Edition, p 188, stating that in respect of the dishonesty “dishonesty is a generic term embracing all forms of conduct involving deception on the part of the employees. In criminal law, a person cannot be convicted of dishonest conduct unless that conduct amounts to a recognized offence. However in employment law, a premium is placed on honesty because conduct involving moral turpitude to employees damages the trust relationship on which the contract is founded. The dishonest conduct of employees need not therefore constitute a criminal offense. Dishonesty can consist of any act or omission which entails deceit. This may include withholding information from the employer, making a false statement or misrepresentation with the intention of deceiving the employer.”
12. It was submitted that the core function of an educator is to educate learners, and inherent to this is to ensure that learners are developed and the content knowledge enhanced. The chief measurement of a learner’s ability is the marks they obtain and therefore the employer places a heavy emphasis on the integrity of the results and assessments and places an enormous amount of trust in its employees. The applicant through conscious and concerted efforts obstructed the assessment process of the school and placed in jeopardy its administration ending in dignity. The conduct of the applicant affected the school and placed in jeopardy its administration and integrity and the welfare of the learners. Her conduct had a ripple effect and the school could not issue the report cards of grade 10-12 learners until well into the third term, and grade 12 learners could not apply to tertiary institutions. The employer submitted that the employment relationship has broken down provocatively, and that the applicant had to be held accountable for their actions. Therefore dismissal was the only reasonable sanction in these circumstances.
Applicant’s version:
13. The applicant, Ms Cupido stated that she was the English 1st language educator for grades 10 to 12 and that she had many classes in these grades and huge number of learners and scripts she had to mark. She acknowledged that what she did was wrong, but she thought she could fix it but did not reach out for any assistance, as she was too proud to ask. She did not feel comfortable sharing her personal problems at that time, but all became too much for her. She had personal problems related to finding out that their son had been doing drugs again and that she was also suffering financial problems due to the fact that she was the main provider. She stated that she would never engage in such misconduct again.
14. During cross-examination she acknowledged that she was aware of her responsibility as an educator and that she made a conscious decision when she gave fictitious marks. She did express remorse for her actions and acknowledged that actions constituted dishonesty, but asked that the WCED gives her a second chance, she did not think through the implications of her actions.
15. In closing it was submitted that the applicant had 17 fruitful years service as a WCED educator and worked with diligence and became the head of the English department. She remorsefully pleaded guilty to the charges, and it was submitted that the mitigating circumstances are reasonable cause for lesser sanction. It was submitted that discipline need to be corrective for progressive and that these were the applicant’s first offenses, and therefore she should be given a second chance. It was also submitted that the chairperson of the disciplinary hearing made a fair decision when he issued a sanction of a final written warning, considering the ICAS report.
ANALYSIS OF EVIDENCE AND ARGUMENT
16. The LRA states in the Code of Good Conduct in sec 7 of Schedule 8 that in a dismissal dispute the following must be considered:
“Any person who is determining whether a dismissal for misconduct is unfair should consider -
(a) Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
(b) If a rule or standard was contravened, whether or not-
(i) It was valid or reasonable rule or standard;
(ii) The employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
(iii) The rule or standard has been consistently applied by the employer;”
The second question to be answered is with regard to the appropriate sanction. In s7 (b) it is noted:
(iv) Dismissal was an appropriate sanction for the contravention of the rule or standard.
17. The applicant pleaded guilty to the charges, but submitted that the sanction of dismissal was unfair. The further consideration thus is whether the sanction of dismissal was fair.
18. In assessing whether or not an employer’s decision to dismiss was an appropriate sanction according to the case of Sidumo v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC,) I considered specifically paragraph 75 and 94 referring to the issue of fairness and criteria for consideration by the commissioner. The respondent submitted that the misconduct of Ms Cupido was serious, and that there was an irrevocable breakdown in the trust relationship. She acted dishonestly and by her conduct she failed in her core responsibilities as an educator, by not placing the interest of her learners first.
19. The applicant indicated that even though she was guilty of dishonesty, she should have been afforded a second chance, considering her personal circumstances and the ICAS report. However it is clear that the ICAS report as considered by the chairperson of the disciplinary hearing, was irrational and unjustifiable, as the employer had no opportunity to rebut the information. The applicant for instance did not even attend all the sessions and the evidence was clear and not disputed that the employer had attempted to assist the applicant, but she spurned those efforts.
20. The employer referred to Grogan in reference to the implications of dishonesty, and in case law it has been stated very clearly as in the case of Hullet Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry and others (D 679/04) [2007] ZALC 93 (6 December 2007) it was stated:
“42] Turning to the issue of the seriousness of the offence, the presence of dishonesty tilts the scales to an extent that even the strongest mitigating factors, like long service and a clean record of discipline are likely to have minimal impact on the sanction to be imposed. In other words whatever the amount of mitigation, the relationship is unlikely to be restored once dishonesty has been established in particular in a case where the employee shows no remorse. The reason for this is that there is a high premium placed on honesty because conduct that involves corruption by the employees damages the trust relationship which underpins the essence of the employment relationship. In this regard the Court in Sappi Novaboard (PTY) Ltd v Bolliers (1998 19 ILJ 784 (LAC), held that:
“ In employment law premium is placed on honesty because conduct involving moral turpitude by employees damages the trust relationship on which the contract is founded.”
[43] The same approach was adopted in the case of Standard Bank of SA v CCMA and Others (1998) 19 ILJ 903, where the court held that dishonesty in general renders the employment relationship intolerable and incapable of restitution. See also Central News Agency v CACWUSA & Another (1991) 12 ILJ 343 (LAC) and Toyota South Africa Motor (Pty) Ltd v Radebe & Others (2000) 21 ILJ 340(LAC). “ In this case the court determined that certain acts of misconduct are so serious that no length of service can save an employee who has committed them from being dismissed. It was held that dishonesty is one such conduct.
21. Considering the nature of the offences and the totality of the circumstance of the dismissal, and in particular the failure of the applicant to consider the interest of the learners, I find that sanction of dismissal in these circumstances was not unreasonable or unfair.
AWARD
22. I find that the dismissal was fair.
23. The application is dismissed.
Panelist: Retief Olivier
Province: Western Cape
Applicant: SADTU obo V A Cupido
Respondent: Department of Education Western Cape
Issue: Unfair Dismissal - Constructive Dismissal
Venue: Western Cape Education Department (WCED), Golden Acre Building, Cape Town
Award Date: 11 December 2018
Arbitrator: Retief Olivier
Arbitrator: Retief Olivier
Date of Award: 11 December 2018
SADTU obo V A Cupido Applicant
and
Western Cape Education Department Respondent
Applicant representative: C M Mgubanto - SADTU
Union/Applicant’s address
Telephone:
Telefax:
Respondent: Western Cape Education Department
Respondent’s representative: C Hanekom
Private Bag X9114
Cape Town 8000
Telephone: 021 - 467 2846
Telefax: 021 – 425 8612
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing took place at the offices of the Western Cape Education Department (WCED), Golden Acre Building, Cape Town, on 23 November 2018. The applicant was represented by Mr C M Mgubanto from SADTU. The respondent was represented by Ms C Hanekom, labour relations official. It was also agreed that written closing arguments would be submitted by not later than 30 November 2018.
ISSUE TO BE DECIDED
2. The Applicant referred the matter to the Bargaining Council as an unfair dismissal dispute. The Applicant was found guilty in a disciplinary hearing on three charges, and was given a sanction of a final written warning. The respondent appealed this decision and the appeal was upheld and the sanction was changed to a dismissal. The applicant submitted that this was unfair and the sanction of dismissal was too harsh. The applicant did not dispute the finding of guilty on the three chargers. I must therefore only decide whether the sanction of dismissal was fair.
3. Procedural aspects were not in dispute.
BACKGROUND TO THE ISSUE
4. The applicant Ms Cupido had been employed as an educator with the WCED for 17 years, and had been working as a grade 10,11 and 12 teacher at Rusthof High School in the Strand. She was charged with the following three offences:
Charge 1: Section 18 (1) of the Employment of Educators Act, 76 of 1988 for misconduct, in that she, during the second quarter of 2017, committed an act of dishonesty by allocating marks to grade 10 and 11 learners, for the first the additional language assessment assignments/ tests without the scripts being marked.
Charge 2: Section 18 (1) (i) of the Act for misconduct in that she on or about the 26th June 2017 refused to obey a legal instruction or command without any reasonable excuse or failed to submit the First Additional Language scripts grades 10-12 within the set time.
Charge 3: Section 18 (l) (i) of the Act in that she on or about the 29th June 2017 failed to obey a legal instructional by Kumon without any reasonable excuse, or failed to attend the meeting requested by the principal.
5. The chairperson of the disciplinary hearing found her guilty on all three charges, and noted in his finding that her conduct might even easily qualify as a dismissible offense. However in the mitigating arguments submitted after the finding of being guilty of the charges were made, the applicant submitted a clinical assessment report from ICAS, to which the applicant had been referred too because she was experiencing personal problems, and this report then addressed psycho social and interpersonal issues, and noted that these conditions negatively impacted on her functioning in the work. On the basis of this report the chairperson of a disciplinary hearing found sufficient mitigating evidence not to dismiss the applicant, but issued her with a final written warning. The ICAS report however was not submitted as evidence during the disciplinary hearing.
6. The respondent appealed this outcome to the MEC of Education, indicating that the evidence presented regarding the offenses and the seriousness of the charges, warranted a dismissal. It was acknowledged that the respondent was entitled to appeal the chairperson’s finding in respect of policy prescripts. The MEC for Education considered the appeal and amended the final written warning to a dismissal. The MEC for Education issued the appeal outcome on 7 October 2018 and the applicant was subsequently dismissed. The applicant disputed this appeal finding and submitted that the sanction of dismissal was too harsh, considering the mitigating evidence as noted in the ICAS report.
SURVEY OF EVIDENCE AND ARGUMENT
7. Each party only called one witness to testify and submitted written closing arguments. Bundles of documents were also submitted as evidence. Although I have considered all the evidence and arguments I am only referring to those aspects relevant to determine the dispute and brief summaries of evidence, as I am required in terms of sec 138(7) of the LRA to provide an award with brief reasons.
Employer’s version:
8. Advocate Lynn Coleridge – Zils, director policy coordination and advisor in the MEC’s office, testified and referred to the appeal submission of the findings of the chairperson, noting the MEC regarded the misconduct of the applicant as very serious. The applicant pleaded guilty to these very serious charges that included dishonesty, failing to submit scripts, and refusing to adhere to instructions. The chairperson in his findings in fact confirmed the seriousness of these allegationswarranted dismissal. The applicant acknowledged that she marked learners’ scripts and had learners on her mark sheets that were no longer associated with the school. This resulted in learners in grade 12 not being able do apply to tertiary institutions, thereby jeopardizing their future. Assessments of learners are to be taken very seriously, and an experienced educator should not have misled the principal and the HOD. The integrity of the results are key and in this respect the applicant failed the School, the leaners and the WCED.
9. The applicant also often absented herself from school. The school made an effort to assist her, by referring her to ICAS, but the applicant did not even attend all the sessions, and provided no feedback to the school or asked for any help from the school. When the chairperson considered the ICAS report, the School had no opportunity to rebut the report and address the chairperson on the report. This was a material irregularity. The employer provided support to the applicant, but the applicant did not reciprocate. The finding of the chairperson that the employer failed the applicant can therefore not stand, particularly because the employer was also not afforded the opportunity to explain their support to the applicant. The employer in fact made numerous attempts to support the applicant, but the applicant never indicated that she needed help and spurned the attempts of the employer to assist.
10. During cross-examination she reiterated that the MEC applied her mind and considered the seriousness of these offenses and the impact it had on the learners and on the school, and the fact that the applicant was an experienced educator, and that this was completely unacceptable and her experience was in fact an aggravating factor.
11. In closing the respondent submitted that the charges were serious and referred to Grogan J, in Dismissal, 1st Edition, p 188, stating that in respect of the dishonesty “dishonesty is a generic term embracing all forms of conduct involving deception on the part of the employees. In criminal law, a person cannot be convicted of dishonest conduct unless that conduct amounts to a recognized offence. However in employment law, a premium is placed on honesty because conduct involving moral turpitude to employees damages the trust relationship on which the contract is founded. The dishonest conduct of employees need not therefore constitute a criminal offense. Dishonesty can consist of any act or omission which entails deceit. This may include withholding information from the employer, making a false statement or misrepresentation with the intention of deceiving the employer.”
12. It was submitted that the core function of an educator is to educate learners, and inherent to this is to ensure that learners are developed and the content knowledge enhanced. The chief measurement of a learner’s ability is the marks they obtain and therefore the employer places a heavy emphasis on the integrity of the results and assessments and places an enormous amount of trust in its employees. The applicant through conscious and concerted efforts obstructed the assessment process of the school and placed in jeopardy its administration ending in dignity. The conduct of the applicant affected the school and placed in jeopardy its administration and integrity and the welfare of the learners. Her conduct had a ripple effect and the school could not issue the report cards of grade 10-12 learners until well into the third term, and grade 12 learners could not apply to tertiary institutions. The employer submitted that the employment relationship has broken down provocatively, and that the applicant had to be held accountable for their actions. Therefore dismissal was the only reasonable sanction in these circumstances.
Applicant’s version:
13. The applicant, Ms Cupido stated that she was the English 1st language educator for grades 10 to 12 and that she had many classes in these grades and huge number of learners and scripts she had to mark. She acknowledged that what she did was wrong, but she thought she could fix it but did not reach out for any assistance, as she was too proud to ask. She did not feel comfortable sharing her personal problems at that time, but all became too much for her. She had personal problems related to finding out that their son had been doing drugs again and that she was also suffering financial problems due to the fact that she was the main provider. She stated that she would never engage in such misconduct again.
14. During cross-examination she acknowledged that she was aware of her responsibility as an educator and that she made a conscious decision when she gave fictitious marks. She did express remorse for her actions and acknowledged that actions constituted dishonesty, but asked that the WCED gives her a second chance, she did not think through the implications of her actions.
15. In closing it was submitted that the applicant had 17 fruitful years service as a WCED educator and worked with diligence and became the head of the English department. She remorsefully pleaded guilty to the charges, and it was submitted that the mitigating circumstances are reasonable cause for lesser sanction. It was submitted that discipline need to be corrective for progressive and that these were the applicant’s first offenses, and therefore she should be given a second chance. It was also submitted that the chairperson of the disciplinary hearing made a fair decision when he issued a sanction of a final written warning, considering the ICAS report.
ANALYSIS OF EVIDENCE AND ARGUMENT
16. The LRA states in the Code of Good Conduct in sec 7 of Schedule 8 that in a dismissal dispute the following must be considered:
“Any person who is determining whether a dismissal for misconduct is unfair should consider -
(a) Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
(b) If a rule or standard was contravened, whether or not-
(i) It was valid or reasonable rule or standard;
(ii) The employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
(iii) The rule or standard has been consistently applied by the employer;”
The second question to be answered is with regard to the appropriate sanction. In s7 (b) it is noted:
(iv) Dismissal was an appropriate sanction for the contravention of the rule or standard.
17. The applicant pleaded guilty to the charges, but submitted that the sanction of dismissal was unfair. The further consideration thus is whether the sanction of dismissal was fair.
18. In assessing whether or not an employer’s decision to dismiss was an appropriate sanction according to the case of Sidumo v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC,) I considered specifically paragraph 75 and 94 referring to the issue of fairness and criteria for consideration by the commissioner. The respondent submitted that the misconduct of Ms Cupido was serious, and that there was an irrevocable breakdown in the trust relationship. She acted dishonestly and by her conduct she failed in her core responsibilities as an educator, by not placing the interest of her learners first.
19. The applicant indicated that even though she was guilty of dishonesty, she should have been afforded a second chance, considering her personal circumstances and the ICAS report. However it is clear that the ICAS report as considered by the chairperson of the disciplinary hearing, was irrational and unjustifiable, as the employer had no opportunity to rebut the information. The applicant for instance did not even attend all the sessions and the evidence was clear and not disputed that the employer had attempted to assist the applicant, but she spurned those efforts.
20. The employer referred to Grogan in reference to the implications of dishonesty, and in case law it has been stated very clearly as in the case of Hullet Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry and others (D 679/04) [2007] ZALC 93 (6 December 2007) it was stated:
“42] Turning to the issue of the seriousness of the offence, the presence of dishonesty tilts the scales to an extent that even the strongest mitigating factors, like long service and a clean record of discipline are likely to have minimal impact on the sanction to be imposed. In other words whatever the amount of mitigation, the relationship is unlikely to be restored once dishonesty has been established in particular in a case where the employee shows no remorse. The reason for this is that there is a high premium placed on honesty because conduct that involves corruption by the employees damages the trust relationship which underpins the essence of the employment relationship. In this regard the Court in Sappi Novaboard (PTY) Ltd v Bolliers (1998 19 ILJ 784 (LAC), held that:
“ In employment law premium is placed on honesty because conduct involving moral turpitude by employees damages the trust relationship on which the contract is founded.”
[43] The same approach was adopted in the case of Standard Bank of SA v CCMA and Others (1998) 19 ILJ 903, where the court held that dishonesty in general renders the employment relationship intolerable and incapable of restitution. See also Central News Agency v CACWUSA & Another (1991) 12 ILJ 343 (LAC) and Toyota South Africa Motor (Pty) Ltd v Radebe & Others (2000) 21 ILJ 340(LAC). “ In this case the court determined that certain acts of misconduct are so serious that no length of service can save an employee who has committed them from being dismissed. It was held that dishonesty is one such conduct.
21. Considering the nature of the offences and the totality of the circumstance of the dismissal, and in particular the failure of the applicant to consider the interest of the learners, I find that sanction of dismissal in these circumstances was not unreasonable or unfair.
AWARD
22. I find that the dismissal was fair.
23. The application is dismissed.
Panelist: Retief Olivier