Case Number: PSES377-18/19KZN
Applicant: NATU obo TR NDLOVU
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Dismissal - Misconduct
Venue: Durban Teachers Centre, Overport.
Award Date: 2 June 2020
Arbitrator: VUYOKAZI NGWENYA
NATU obo TR NDLOVU Applicant
DEPARTMENT OF EDUCATION – KZN PROVINCE Respondent
Case Number: PSES377-18/19KZN
Last date of arbitration: 16 March 2020
Receipt of closing arguments: 23 May 2020 (explanation provided below)
Date of award: 02 June 2020
Education Labour Relations Council
261 West Avenue
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: firstname.lastname@example.org SelloM@elrc.org.za MatloseM@elrc.org.za
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing was first scheduled for hearing on 13 August 2019. Due to industrial action on the said day, the matter did not proceed as parties were denied access to the allocated premises. It was thereafter rescheduled and sat for hearing on 16 September and 29 November 2019 and ultimately finalised on 16 March 2020.
2. The Applicant is Mr. TR Ndlovu, represented by Ms Simangele Shusha, a union official from NATU. The Respondent is the KwaZulu Natal Department of Education, represented by Ms Jabu Dumisa. I was assisted by Ms Andile Khumalo who rendered interpretation services as required by the Applicant’s representative as and when needed. The hearing was initially conducted at the Durban Teachers Centre in Overport and finalised at the Dookies Centre Durban.
3. On the last day of arbitration, parties were directed to submit their closing arguments. It is recorded that both parties complied with this directive. However, the submission occurred at a time when there was panic and tension in the country in that the President of the Republic had declared a National State of Disaster, ordering significant limitations on the citizens which have become known as ‘the lockdown’. He announced the lockdown on 23 March and declared it operational as at 26 March 2020. In preparation for ‘national lockdown’ as it were, most officials had to act swiftly to put contingency plans in place. It is also common cause that the ELRC offices shut down. Only essential services as defined in the regulations issued in terms of Section 27 (2) of the Disaster Management Act 2002, could operate during the lockdown and citizens’ movements were severely restricted.
4. Since then, the lockdown has been reduced to level 4 and is currently at level 3 as at 01 June 2020, it eased certain restrictions on certain sectors and industries, expanding the list of essential services allowed to operate. Table 1 of the Government Gazette describes those entities allowed to return to work in a phased manner. It is against this background that the ELRC had to comply and embrace the concept of gradual reopening of its offices and operations.
5. The case management officer returned to the office sometime in May and having gone through his ‘piled up work, they discovered that the parties had in fact submitted their closing arguments timeously. They immediately forwarded same to me. Unfortunately, and through no fault of them, I discovered this days later and immediately resumed drafting this arbitration award.
6. The delay in submission is therefore not deliberate and any inconvenience caused to parties is deeply regretted.
TERMS OF REFERENCE AND ISSUES TO BE DECIDED
7. The arbitration takes place in terms of the referral of the dispute by the Applicant. The Applicant was employed by the Respondent as an educator at Ubambiswano High School under the Zululand Service Centre. The Applicant initially resigned in April 2014 and was re-employed in August 2014. The circumstances will be outlined below. The Applicant was then dismissed in May 2018.
8. The Applicant disputed both the substantive and procedural fairness of the dismissal.
PRELIMINARY ISSUES AND BACKGROUND
9. There were no preliminary issues raised by either party. Parties confirmed that there was a pre arb and they also submitted bundles in support of their respective cases.
10. It is common cause that the Applicant was first employed as an educator at the Ubambiswano High School in 2012 under the Zululand Service Centre.
11. It is also common cause that there were allegations of sexual relations between the Applicant and one of the learners. Following a disciplinary process the Applicant was dismissed. He lodged an appeal. He then resigned and a few months later was reemployed. It is also not in dispute that upon discovery of re-employment, the Respondent terminated the services of the Applicant.
SUMMARY OF EVIDENCE AND ARGUMENTS
12. The Respondent submitted the documents contained in its Bundle.
13. The Respondent’s representative also testified on behalf of the Respondent.
14. She testified as follows, she is the Deputy Manager: ER Department. She submitted that she would be the only one testifying on behalf of the Respondent mainly because there is strong suspicion that the Applicant was working in concert with other officials in the employ of the Respondent.
15. She confirmed common cause issues and outlined background to this matter which is similar to what has been written above.
16. The gist of her testimony was that the Applicant was initially disciplined and dismissed for misconduct. He appealed the sanction and conceded that the appeal outcome took longer because of the then changes in the MEC of Education’s office. Nevertheless, it was finalised and its outcome, addressed to the Applicant himself and dated 20 August 2013, confirmed dismissal. In another correspondence dated 19 September 2013, the Head of Department wrote to the Manager: HRSS instructing them to implement the outcome of the appeal.
17. She testified that, in order to frustrate the Respondent’s intentions, some of its officials colluded with the Applicant. The appeal outcome was not implemented on purpose and to circumvent it, the Applicant then resigned on 01 February 2014 as per correspondence contained on page 7.
18. Dumisa further stated that acting in cahoots with other officials, the Applicant was then re-employed a few months later under a new contract. Upon discovering this, the Respondent terminated the services of the Applicant as he should not have been allowed to return to the system in the first place. To illustrate her point she referred to the letter on page 9 of Bundle B, letter authored by the then district director, D.S Chonco which states that ‘you have not appealed to the MEC for Education against the finding of a sanction’ She stated that correspondence was misleading as the Applicant had in fact appealed and the outcome was communicated to him.
19. The Applicant’s election to resign and then return to the system as per the Principal’s request, who by the way, shares the same surname with him, is one of many indications that there was a plan to get the Applicant back on the system even though he was dismissed for sexual misconduct.
20. Dumisa also emphasized that the service centers structures were abolished sometime in 2015 and there could have been delay or communication breakdown. The then process was for documents to be transmitted from the Head Office to the District office to the Service Centre and finally to the school concerned. There were also delays in the finalization of the appeals in the MEC’s office.
21. She emphasized that the Applicant’s appeal was against the sanction and not the finding. She also insisted that it was highly unlikely that at the time of his resignation, the Applicant was not aware of the appeal outcome, as he is claiming. She conceded that there was a delay and possibly a ‘designed/fabricated’ communication breakdown which benefitted the Applicant in that he resigned before the sanction of dismissal could be implemented.
22. Regarding the Applicant’s reappointment, Dumisa stated that the school had a new principal, also a Ndlovu, and a new School Governing Body (SGB). The Applicant was then appointed by the SGB as a temporary teacher. After a little while the school applied for a conversion from temporary to permanent status. Conversions did not require any interviews.
23. The Respondent then discovered when it was doing its audit that the Applicant was still in its system and had to terminate the employment relationship that should not have been there in the first place. The Applicant also acted in bad faith as he was supposed to have disclosed his history with the Respondent when he completed the conversion forms.
24. The Applicant’s conduct is very serious and he was initially dismissed for a very serious offence. His appeal was turned down and to bypass the system, a ‘scheme’ was devised to have him return to the system.
25. Under cross examination, when asked if the Applicant was put on suspension, her response was that in terms of prevailing practice teachers facing serious charges are put on suspension, so she assumed that the same was done to the Applicant. It was put to her that the passage of time in dealing with the Applicant’s appeal was two years. Her response was that sometimes it does take a while depending on the side of the department and also there were various changes in the MEC’s office during that time, lastly, no matter how long it took, there was no prejudice to the Applicant since all his benefits were kept intact.
26. She conceded that when the Applicant returned to the Respondent as a temporary teacher he used the same persal number because by its very nature, the employee’s number is attached to the identity number. She reiterated that his dismissal was not immediately detected because there was a ‘cover up’ to protect him.
27. The Applicant, Richard Themba Ndlovu, took an oath and testified as follows:
28. He holds a teacher’s diploma and a BTech in Education Management. He started teaching in February 1995 and voluntarily resigned in 30 April 2014 to pursue business interests. On 01 August 2014 he returned as temporary teacher until he was dismissed in May 2018.
29. He confirmed that prior to his resignation, he was disciplined and the outcome was dismissal. He therefore lodged the Appeal in 2012. In 2014 he elected to resign and at that time he had not yet been provided with the appeal outcome. A few months after his resignation, the school principal, Mrs Ndlovu, who shares the same last name with him but is not a blood relative, requested him to return to school as they were battling to find a suitable replacement. He is a mathematics and technology teacher. He accepted because his private business venture was not going according to plan. The principal was a deputy principal at the time he was charged and dismissed for sexual misconduct. The then principal had retired.
30. Upon his return at the school, he worked as normal and all the necessary paperwork was signed by him, the school principal and the SGB member. He was subsequently made permanent in December 2017 and continued to work without any problems until he did not receive a salary in June 2018. He made several enquiries and the principal assisted by contacting the circuit office. Eventually they were informed that according to the Respondent’s system he was dismissed in May 2018. He confirmed receipt of his statutory entitlements.
31. On the day that the matter was reconvened, the Applicant’s representative brought an additional document and sought that it be considered as part of the Applicant’s bundle of documents. The relevance of the document was that, as it was claimed by the Applicant, it was proof that the SGB was the old SGB when he was re-employed as a temporary teacher.
32. He stated that it was wrong for the Respondent’s representative to label him a ‘paedophile and sexual predator because his understanding is that paedophile is person who has sexual relations with children under the age of 13 and he has never had any sexual relations with girls under the age of 13. He also emphatically stated that he has never been accused of rape or molesting a girl under the age of 13.
33. Lastly, he stressed that he did not bribe anyone to secure re employment. It was principal Ndlovu who requested him to return to the school as there was a dire need for a mathematics teacher.
34. Under cross examination, he conceded that he was charged for sexual misconduct. In great and passionate detail he explained how, in his view, that hearing was fraught with procedural irregularities. When asked why he did not challenge the ‘procedural irregularities’ his response was that he had no knowledge but had appealed in 2012. He was then referred to the outcome of the appeal and his response was that he first saw it in November 2019 and was definitely not aware of it when he had chosen to resign in 2014. It was put to him that he knew of the outcome and that a ‘syndicate’ of some sort involving Respondent’s officials such as the circuit manager and the current principal Ndlovu colluded to ‘beat the system’ he denied that and was loud and somewhat emotional. He insisted that he was headhunted and re-employed.
35. The Applicant’s other witness was Grace Theodore Mzobe and her testimony was as follows:-
36. She is an educator at Ubambiswano High School and has been an educator since 1993. The Applicant is her former colleague and they were in the same union. At the time there were allegations of sexual misconduct and subsequent disciplinary hearing against the Applicant, she was a shop steward.
37. She stated that the Applicant had told her that he was resigning because of personal reasons. His appeal had not been finalised at that time. Also, he returned because it was the principal who desperately needed his services as there was no mathematics teacher. The SGB was involved.
38. Under cross examination, she conceded a large part of her testimony was in fact what she had been told by the Applicant.
SUMMARY OF ARGUMENTS
39. The Respondent main argument was that the second contract of employment with the Applicant should have never been concluded. It was done in contravention of the Respondent’s rules and regulations and sought to undermine the Respondent’s authority in that the Applicant was dismissed for sexual misconduct and allowed back into the system when he should have not been allowed to ever work for the Respondent given the gravity of the offence.
40. The Applicant argued in the main, that the second employment contract is valid in law as it was concluded legally and should not have been terminated and by so terminating it in the manner that the Respondent did, the Applicant’s rights were violated and the dismissal was unfair both substantively and procedurally.
ANALYSIS OF EVIDENCE AND ARGUMENT
41. The dismissal of the Applicant is not in dispute.
42. The Applicant disputed the substantive and procedural fairness of the dismissal, and the Respondent has the duty to prove the fairness thereof.
43. Most of the issues were common cause. However, I need to highlight a few issues before I deal with other relevant issues. They are relevant in the sense that they center on the legality of the second contract of employment of the Applicant.
44. The Applicant was initially disciplined and dismissed for sexual misconduct in that he was charged for contravening section 17(1)(c ) of the Employment of Educator’s Act. The actual charge was that he had a sexual relationship with a learner, it is not in dispute that the Applicant lodged an appeal with the MEC’s office. The Respondent’s representative, Dumisa, conceded that the appeals did take longer periods to be resolved, more so the MEC’s office had undergone changes and those affected the Appeal outcomes. She made a further concession that the circuit/district offices of the Respondent had their own internal changes and those affected flow of communication and other administrative processes.
45. On pages 8 and 9 of Bundle B, the district director, D.S.Chonco first wrote on 20 April 2018 that the Applicant had not appealed and therefore the time period for lodging same had lapsed. He penned another correspondence on 23 April 2018 stating that there was no appeal and the sanction of dismissal would be effective from 01 May 2018. Now, in light of both the Respondent’s and Applicant’s testimonies that there was an appeal, it is clear that D.S Chonco was mistaken. This also supports Dumisa’s point that there was communication breakdown. Be that as it may, there was no real prejudice suffered by the Applicant because he continued to work and receive a salary until such time he opted to resign.
46. The Applicant insisted that at the time of his resignation he had not yet received the appeal outcome, the Respondent’s representative vehemently disputed that. Looking at the Applicant’s letter of resignation on page 7 of Bundle B it is clear that the Applicant had lost interest and was no longer concerned about the appeal outcome. I say so because he made no mention of it in his resignation letter. The contents of his letter clearly depict a picture of someone who is leaving the past behind in pursuit of greener pastures.
47. The Applicant had been an educator for almost two decades when this incident happened, he was a union member and therefore reasonably familiar with labour relations processes or atleast knew what to do when faced with work related problems. He elected not to enquire about the outcome or actively challenge the unresponsiveness of the MEC. He chose to resign. I also find the Applicant to be untruthful when he testified that the sexual misconduct disciplinary hearing was fraught with procedural irregularities and when asked under cross examination why he did not challenge that, his response was a lousy ‘ I had no knowledge’ response. The Applicant could have even approached the ELRC and declared a dispute. He elected not to do so.
48. The Applicant was also at pains to explain that he was headhunted by the principal and that the SGB was fully aware of his reemployment. This is of secondary importance. The primary issue is that ‘is it appropriate and proper for any Respondent’s official or any statutory structure such as the SGB to re employ a person who was dismissed for sexual misconduct whether the Appeal outcome was communicated or not. The answer is a firm and resounding no. The Applicant claimed that the appeal outcome was never communicated until November 2019. Assuming that the Applicant is correct, it would still be improper for any Respondent’s official to reemploy such a person unless there was clear documentary proof that the outcome of the disciplinary hearing was erroneous, rescinded and/or set aside. For the record, I do not doubt that the Applicant and the principal knew of the appeal outcome before the Applicant could tender his resignation. I will outline this below.
49. In law, a contract is an agreement between two or more persons with intention and capacity to enter into a legally binding agreement and performance is possible. In this case, the Applicant holds a view that the first agreement was terminated by the Applicant’s resignation and the second contract of employment was legally binding and due process should have been followed before its termination. It was not in dispute that the temporary teacher’s contract need the SGB’s involvement and that when the Applicant’s temporary contract was converted to permanency, there were no formal interviews etc. She stated that the Respondent only discovered about the Applicant’s reemployment when an audit was conducted. What is clear therefore is that the SGB, whether it was old or new, and the principal, who was fully aware of the Applicant’s history with the school, knew of the re-employment. In fact the Applicant’s evidence is that the principal actively headhunted him.
50. The cold and almost clinical application of contract law cannot be viewed in isolation. Two of the cornerstones of the basic education sector/environment are that an educator is in loco parentis and also the principle of the best interest of the child. This basically means that the teacher/educator is on the place of a parent/ must behave as a parent would towards a child. Best interest of the child means the actions taken by anyone in authority must be favorable or to the child’s advantage.
51. Knowing full well that an educator was charged and disciplined for a grave act of having sexual relations with a learner and that the outcome of dismissal was never overturned/rescinded/set aside and then ‘headhunt’ the offender, take him back in the system, expose the learner to him, is on its own a serious act of misconduct that should not be overlooked by the Respondent. The principal acted dangerously and irresponsibly. It is not within my scope of powers to make a pronouncement in relation to the principal’s conduct, I therefore strongly recommend to the Respondent to investigate this matter further and if needs be, take the necessary disciplinary action against any official who colluded with the Applicant.
52. This case is not about whether the Applicant was framed or falsely accused, it is about the fact that there was a dismissal for having a sexual relationship with a learner and the outcome was not successfully challenged or set aside by a competent structure/tribunal. The Applicant, then, by his own conduct, abandoned his interest to clear his name or seek justice for himself, for lack of a better phrase. He voluntarily resigned knowing fully that he had not successfully challenged his dismissal for sexual misconduct. The Applicant knew that his actions were grossly improper, I say so because in his testimony he boldly said a sexual predator /paedophile is a person who has sexual relations with girls under the age of 13 and that he has never been accused of raping or molesting a girl child under the age of 13. The Applicant missed the point, Section 17 of the Act refer to a learner and not to girls under a certain age. The Respondent was correct in terminating the services of the Applicant on the first instance. To then take back such an offender into the employment fold of the Respondent is to defeat the very essence of the objectives of the applicable legislation.
53. It was stated that the Respondent’s terminated the services of the Applicant immediately after its audit revealed that he was still on its payroll. The Applicant’s representative’s argument is that it was procedurally irregular to do so. I find that the Respondent did not act irresponsibly or procedurally unfair by simply terminating the Applicant’s services. There was absolutely no need to afford the Applicant any opportunity to be heard or make representations as to why his services should not be terminated forthwith. Matter of fact, the Applicant should not have been in the system in the first place. He was knowingly put there in a fraudulent and clandestine manner designed to contravene the law and undermine the authority of the Respondent. I reiterate my recommendation to the Respondent to consider disciplinary action against any officials involved in this misconduct.
54. It is not clear why the Applicant called Mzobe as a witness, she repeated what was already established as common cause issues. Her evidence was hearsay and unreliable. It was also in support of the Respondent’s case in that it illustrated beautifully that the Applicant had and still has a very healthy relationship with union officials/shop stewards and should have therefore exercised his rights prior to resigning when his appeal was still pending, as the Applicant contended.
55. Based on the above, I therefore find that the Respondent did discharge the onus of proving both substantive and procedural fairness.
56. Lastly, I would like to extend my sincere appreciation and gratitude to both representatives by their display of professional conduct and sound work ethic.
57. I therefore find that the dismissal of the Applicant was both substantively and procedurally fair. The Applicant is not entitled to any relief.
02 June 2020