Case Number: PSES 377-19/20WC
Province: Western Cape
Applicant: NAPTOSA obo Mdiniso, TP
Respondent: Department of Education Western Cape
Issue: Unfair Dismissal - Misconduct
Award Date: 4 March 2020
Arbitrator: Michael Marawu
Panellist/s: Michael Marawu
Case No.: PSES 377-19/20WC
Date of Award: 04-March-2020
In the ARBITRATION between:
NAPTOSA obo Mdiniso, TP
(Union / Applicant)
Department of Education – Western Cape
Union/Applicant’s representative: Mr X Zigebe (Union Official)
Union/Applicant’s address: 6 Park Road
Telephone: (021) 686 8521 / 071 972 1208
Respondent’s representative: Mr Z Dayimani (ER Officer)
Respondent’s address: 17th Floor Sanlam Centre
Cape Town, 8000
Telephone: (021) 467 2389
Telefax: (021) 425 8612
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing was held at the premises of the department of Education in Cape Town on 07 October, 27, 28, 29 November 2019, 04, 05 and 06 February 2020; the parties were further given until the 1st March 2017 to submit closing arguments. The applicant was represented by a trade union (NAPTOSA) official Mr Xolile Zigebe and the Department by Mr Zola Dayimani (Employee Relations’ Officer). The arbitration proceedings were digitally recorded.
2. There were also a number of witnesses under the age of 18 years, which were assisted by the ELRC’s appointed intermediary while giving their testimony.
THE ISSUE TO BE DETERMINED
3. I must determine whether the Applicant’s dismissal was substantively and/or procedurally fair.
BACKGROUND TO THE ISSUE
4. The Applicant was employed with the Respondent as an Educator at Thembelihle Senior Secondary School with effect from 01 January 2006. She was earning R28174.97 per month prior to her dismissal.
5. It is alleged that the Applicant was unfairly dismissed by the Respondent on 24 July 2019.
SURVEY OF SUBMISSIONS AND ARGUMENTS
THE RESPONDENT’S CASE
6. Khonaye Magqabi (Learner @ Thembelihle Senior Secondary School) testified with the assistance of an intermediary and stated that she received question with memorandum (memo) from her friend Asphile Dubula, who told her that she got same from other learners as it was shared by Zenande. Zenande got the question paper and memo from Ms Mdiniso through share it. She was among the learners caught copying from her cell phone using question paper and memo that was the same as the final examination paper.
7. After they were caught Zenande informed them as group of friends that Ms Mdiniso wanted them to relate a false story that the question paper and the memo was obtained from another school.
8. Asphile Dubula (Learner at Thembelihle Senior Secondary School) testified with the assistance of an intermediary and explained that Ms Mdiniso shred question paper and memo with her friends Tyoda and Zenande. As they were writing IsiXhosa final examination in 2018, as a group of friends doing Business Studies complained to Ms Mdiniso about lack of examination scope in respect of Business Studies examination.
9. Ms Mdiniso asked Zenande to use her cell phone to screenshot and share question paper and memo to Tyoda’s cell phone, who in turn forwarded it to Zenande using share it.
10. Thulisiwe Phama (Learner at Thembelihle Senior Secondary School) testified with the assistance of an intermediary and explained that she received a call from Ms Mdiniso while she was at home in the evening of 28 November 2018. Ms Mdiniso wanted her to cover for her at school with her friends that received leaked question paper and memo. Ms Mdiniso wanted them to tell a false story that the leaked paper was not obtained from her but from the Business Studies Teacher Ms Samyala.
11. Zenande Buya (Learner at Thembelihle Senior Secondary School) testified with the assistance of an intermediary and explained that she was among a group of friends complained to Ms Mdiniso about not receiving examination scope from the Business Studies Teacher and Ms Mdiniso shouted at them about their lack of seriousness. As she (Ms Mdiniso) was shouting at them she asked her (Zenande) to screenshot question paper and memo from her cell phone, in order to share it with other learners.
12. She warned them that they should not get caught, because she will deny everything if they were to get caught. It was Ms Mdiniso who decided to share question paper and memo with them; they did not ask her or stole it from her cell phone.
13. As they were caught copying during final examination, Ms Mdiniso called her while she was at home and told her to relay a false story during investigation that the paper and memo were obtained from another school; even if she could say Ms Samyala gave it to them that could easily be believable as she was their new Business Studies Teacher.
14. During June 2019 examination, she was found with a paper with notes she used for revision in her pocket and a rough paper she threw out the window; she was not copying as alleged.
15. Ms Zoleka Bacela (Deputy Principal @ Thembelihle Senior Secondary School) testified under oath and stated that she was called into the examination venue, as a learner was caught with question paper and memo on her cell phone. The learner (Khonaye Magqabi) indicated that she got paper and memo from Asphile Dubula, who also got it from her friends.
16. Parents of the learners were called to the school and learners were telling different stories that paper was from another school, until Asiphile’s mother demanded that Asiphile tell the real story she had told at home the other day. It was subsequently disclosed that Ms Mdiniso shared the question paper and memo with learners.
17. There is no way that the learners on their own could have known about Ms Mdiniso Teacher 911 app she had on her cell phone, for them to steal her cell phone, access app to download papers and return it again without her knowing what had happened.
18. Ms Sisipho Samyala (Educator @ Thembelihle Senior Secondary School) testified under oath and stated that she started teaching at the school since October 2018.
19. She learned about what really happened regarding her subject (Business Studies) leaked paper from a learner (Tyoda), after she faced a difficult situation of being put in a very awkward position due to circumstances surrounding the leak of her subject paper.
20. She felt as if she was being unfairly treated and there were Teachers who were trying to bully her as the new Teacher at the school, as had already taken sides while matter was being investigated.
21. Mr Bongani Nelson Mfikili (Principal @ Thembelihle Senior Secondary School) testified under oath and stated an incident of learners who had fraudulently obtained examination question paper and memo was detected during final examinations in November 2018. When the matter was brought to his attention emergency meetings had to be called at the school, including School Assessment Irregularity Committee (SAIC), wherein school management and SGB members met to deal with the problem. He did not invite union into the SAIC meeting, as the investigation was about the learners conduct of copying from a leaked paper, during final examination.
22. It only became apparent during the course of investigation that an Educator was mentioned by the learners, to have been the one who leaked the question paper and memo to them. He also had to seek guidance from the department’s officials, as the matter related to section 17 of the Employment of Educators Act governing schools’ affairs and was serious misconduct.
23. As the Principal at the school he experienced a great deal of pressure and disruptions at the school. Tough decisions had to be taken, including Business Studies paper not to be marked and learners had to be required to rewrite a different examination paper. Learners’ organisations at the school were not happy with examination interruptions and conflict erupted between school management and learners’ representatives.
24. He had to manage a very delicate situation, which caused him to suffer a serious amount of stress. Even the Teacher that felt she was being framed had to be consoled by him and organise Psychologist’s counselling, as she was seeking to resign from the school.
25. With regards to the copying incident of Zenande in June 2019, the matter was brought to the school management attention and Zenande was confronted before a suitable sanction was decided upon by the School Management Team (SMT).
26. Trust relationship has been irretrievably broken down between him and the Applicant, and cannot continue working with her, in the circumstances.
THE APPLICANT’S CASE
27. Ms Thundezwa Patricia Mdiniso is the applicant in this matter and she testified that she has been an Educator with the department for a period of about 13 years. He started from January 2006, and held a Head of Department (HOD) position at the time of her dismissal.
28. The incident was brought to her attention by the invigilating Teacher, who caught a learner using her cell phone copying from a memo. SAIC meeting was called and was removed from the meeting immediately after learners mentioned her name, without being given a fair opportunity to explain her side of the story.
29. On the charges of fraudulently leaking examination question paper and memo against her, she is not guilty at all. The learners did not get paper and memo from her, however she was subsequently made aware that her cell phone was removed from her box of items she sells at school. The learners who removed her cell phone, used one to distract her and the other one took her cell phone to transfer question paper and memo before returning it back in the box, without her knowing what had happened.
30. She denies other learners version that she shared question paper and memo with them, voluntarily. She was shocked like everyone else when news of leaked paper and memo broke out at school; she knew nothing about how paper was downloaded from her cell phone.
31. She did not call learners to persuade them to cover, but had other important reasons to call them, in order to remind about practicals and other school related business. It cannot be possible for her to share with them question paper and memo, as learners alleged in front of the whole class; that is very unlikely. One of the learners (Zenande) accusing her had a propensity of copying; she was even caught copying again during June 2019 examination.
32. She is the only Teacher with Teacher 911 app at school, but she emails other Teachers their question papers as soon as she received them. The Applicant is seeking retrospective reinstatement
33. Athaxolile Tyoda (Former Learner at Thembelihle Senior Secondary School) testified with the assistance of an intermediary and explained that she was in the same class with the group of students who got hold of the Business Studies question papers with its memo. She witnesses Amahle and Zenande distracting Ms Mdiniso, while Zenande took something from her box of items she sells and went back to sit on her seat and told her to keep quiet.
34. When she asked Zenande what she was asking her to keep quiet about, Zenande shared the question paper and memo with her, telling her they had just stolen it from Ms Mdiniso’s cell phone. After a group of learners where caught copying during final examination, Zenande and the other students agreed that they will implicate Ms Mdiniso, in order to avoid being expelled from the school.
35. She admitted that she did exchange texts with Ms Samyala relating story that implicated Ms Mdiniso as the culprit, after she was called by Ms Samyala telling her that she was about to lose her job due to leaked question paper. In the texts to Ms Samyala, she was relating the false story agreed to by their group of friends, it was not the truth. During the school investigation they had to stick to the story they agreed to as the group of friends, but the truth is what she has shared during arbitration proceedings.
36. Ms Maurita Rosenburg (HOD Social Science at Thembelihle Senior Secondary School) testified under oath and stated that she was called to the office by the Principal to be part of the SAIC meeting, as learners were caught copying during final examination in November 2018. The SAIC meeting did not involve the union representatives as SAIC guidelines provide for their inclusion.
37. Regarding the Zenande June 2019 incident she is aware that she was caught copying, but not sure how the matter was concluded.
38. Amahle Depha (Former Learner at Thembelihle Senior Secondary School) testified with the assistance of an intermediary and explained that she planned with Zenande to distract the Teacher, while Zenande went behind her desk to take Teacher’s phone from the box. Ms Mdiniso did not notice when Zenande was stealing her phone, as she (Amahle) was busy distracting her at the time. Zenande downloaded Business Studies question paper with memo from Ms Mdiniso and share it with other students, before returning phone to the same box without Ms Mdiniso consent.
39. Ms Sphokazi Florence Thyaliti (Educator @ Thembelihle Senior Secondary School) testified under oath and stated that she started teaching at the school since 2003. She was monitoring examination during June 2019 and noticed Zenande that she was acting strangely, while seeming to be nervous.
40. She went to check her desk and saw a paper thrown out the window; it turned out that the paper was used by Zenande to copy from and the incident was reported to the Principal. She is not aware how matter was handled and finalised.
41. She learned about what really happened regarding her subject (Business Studies) leaked paper from a learner (Tyoda), after she faced a difficult situation of being put in a very awkward position due to circumstances surrounding the leak of her subject paper.
ANALYSIS OF SUBMISSIONS AND ARGUMENTS
42. It is common cause that the Applicant was dismissed by the Respondent on 24 July 2019. Therefore the main issue to be decided is whether the Applicant’s dismissal was procedurally and/or substantively fair. In dealing with this issue, it is critical to consider section 192 of the LRA, which states the following:
“(1) In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal.
(2) If the existence of the dismissal is established, the employer must prove that the dismissal is fair.
43. In proving substantive fairness, the Respondent presented one allegation that the Applicant was dismissed on, which related to the alleged fraudulent act (misconduct) of the Educator in terms of article 17(1)(a) of the Employment of Educators Act no 76 of 1998 (hereafter referred to as the Act).
44. In the charge the Applicant was accused of serious misconduct in terms of article 17(1)(a) of the Act, in that she intentionally provided grade 11 learners with Business Studies’ question paper and memorandum, prior to their scheduled examination date.
45. There was alternative charges to the first charge, which related to misconduct in terms of article 18(1)(ee)&(f) of the Act, for the same allegation against the Applicant. Testimony of four learners (Khonaye, Asphile, Thulisiwe and Zenande), Business Studies Educator, deputy Principal and the Princiapal was relied upon to prove the allegations contained in the Respondent’s allegation, whereas the Applicant party relied on Ms Mdiniso’s testimony as well as that of Amahle Depha and Athaxolile Tyoda in this regard.
46. As much I could not find any reason not to believe the testimony of the four learners that presented the same version regarding the Applicant’s decision to provide learners with question paper and memorandum prior to the examination date, the Applicant’s witnesses were also equally convincing in stating that they witnessed Ms Mdiniso’s cell phone stolen by Zenande from her box.
47. However, the problem with Athaxolile and Amahle’s version is that the Educator herself was not aware that her cell phone was stolen and could not explain how her cell phone access password and relevant app was revealed to the learners. Athaxolile Tyoda’s whatsapp messages between her and Ms Samyala also revealed the same version as that presented by the four learners, who testified on behalf of the Respondent.
48. Even if the version presented by the two learners against that of four learners who testified against the Applicant was true, the Educator’s conduct of exposing her cellphone with such sensitive information to the learners would still amount to gross negligence.
49. Furthermore the Applicant could not provide a satisfactory explanation regarding how her cell phone with Teacher 911 app that had sensitive question papers with memorandums could end up in the hands of the learners,that are now accusing her of leaking papers to them. She could not make a convincing case as to why all these four learners would link her to something so serious and damaging, without a clear and present motive.
50. Based on this observation and the persuasive testimony presented by all four learners and other witnesses, I find on the balance of probabilities that the Applicant is guilty of misconduct in terms of article (17)(1)(a) of the Employment of Educators Act, for leaking question paper with memorandum to the learners as alleged by the Respondent.
51. Turning to the question of the sanction imposed (dismissal) by the employer, I have to be guided by the salient principles laid down by the courts. In Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) the Constitutional Court held that fairness requires a balancing of the interest of the employer and employee parties.
52. In Fidelity Cash Management Service v Commission for Conciliation Mediation and Arbitration & others (2008) 29 ILJ 964 (LAC) the Labour Appeal Court held that in considering the totality of circumstances the commissioner would have to answer the question whether dismissal was in all of the circumstances a fair sanction. In answering that question he or she would have to use his or her own sense of fairness.
53. That the commissioner is required to use his or her own sense of justice or fairness to decide the fairness or otherwise of dismissal does not mean that he or she is at liberty to act arbitrarily or capriciously or to be mala fide. He or she is required to make a decision or finding that is reasonable.
54. Having considered the evidence I am of the view that there is no legal basis to interfere with the sanction of dismissal. I accordingly find the dismissal of the Applicant to be substantively fair.
55. No issues pertaining to procedural unfairness had been placed before the arbitrator and as such I find the dismissal of the Applicant to be procedurally fair.
56. With regard to all the factors presented above and guiding legal principles, it is my considered opinion that the employee’s dismissal was both procedurally and substantively fair.
57. The dismissal of Thundezwa Patricia Mdiniso was both procedurally and substantively fair.
58. The referral is accordingly dismissed and the employee is not entitled to any relief.
59. No order as to cost is made.
M M Marawu