Case Number: PSES 790-18/19 NC
Province: Northern Cape
Applicant: SAOU obo Mr. N G WESSELS
Respondent: Department of Education Northern Cape
Issue: Unfair Dismissal - Misconduct
Award Date: 17 September 2020
Arbitrator: SHIRAZ MAHOMED OSMAN
Arbitrator: SHIRAZ MAHOMED OSMAN
Case Reference No: PSES 790-18/19 NC
Date of award: 17 SEPTEMBER 2020
In the arbitration between:
SAOU obo Mr. N G WESSELS Applicant/Employee party
Department of Education – Northern Cape Respondent/Employer party
DETAILS OF HEARING AND REPRESENTATION
1. The present dispute between SAOU obo Wessels N G (hereinafter referred to as the applicant) and The Department of Education-Northern Cape (hereinafter referred to as the respondent) was referred to Arbitration in terms of Section 191 of the Labour Relations Act no.66 of 1995, as amended. At the Arbitration hearing which was held at the Gariep High School in Prieska on 10 February 2020, the applicant was represented by Ms. Labuschagne of SAOU and the respondent was represented by Mr. Bitterbosch.
2. Due to the lateness of the hour, the matter was adjourned and set down to be heard on 30 July 2020, via Zoom, which was postponed by myself and a ruling was issued. The matter proceeded on 1 September 2020 at the above venue and testimony was concluded.
3. The parties were afforded the opportunity to submit written closing arguments by no later than 8 September 2020. Hence, being the last date of the Arbitration.
4. Due to the medical incapacity of the applicant’s representative, the closing arguments were delayed till 14 September 2020.
5. I am to decide whether the dismissal of the applicant is substantively fair. It is challenged that the sanction of dismissal is too harsh. The harshness of the sanction is to be determined by the circumstances of the evidence led at the Arbitration. Indeed, the applicant had pleaded guilty at the internal disciplinary hearing.
6. The applicant has been an educator since 1979.
7. The applicant was employed at the respondent’s school as a principal since 1 January 2014 on salary level P3.
8. The applicant was dismissed on 12 December 2018, subsequent to an appeal being considered.
9. The applicant had pleaded guilty at the disciplinary hearing. He was charged in terms of Section 18 (1) (ee) of the Employment of Educators Act no. 78 of 1998 (the EEA).
10. The applicant was paid till the end of December 2018.
11. The applicant referred his dispute to Council. The dispute failed to resolve and a certificate of non-resolution was issued.
12. The matter was referred to Arbitration in terms of Section 191 of the Act.
SURVEY AND ANALYSIS OF EVIDENCE AND ARGUMENT
13. Both parties were afforded the opportunity to present opening statements, call witnesses and submit written closing arguments. The respondent, called two witnesses to testify, Mr. Neville Fourie, (educator and treasurer of the (SGB) and Ms. Rina Ungerer (SGB member). The applicant called Mr. Nicolaas Gerhardus Wessels (the applicant), Mr. Christiaan Rudolph Immelman (SGB member) and Mr. Schalk Willem Petrus Theron (SGB Chairperson), to testify.
14. A pre arbitration meeting was concluded prior to the commencement of the arbitration and a signed minute was handed up. .
15. Both parties handed up bundles of documents and were accepted to be what they purported to be.
16. Herewith, brief reasons for my decision in terms of Section 138 (7). Should any of the evidence or argument presented at the arbitration not be reflected hereunder, then it does not mean that it was not considered.
ANALYSIS OF EVIDENCE AND ARGUMENT
COUNT 1.1 & 1.2
17. The crisp issue which is to be determined is whether the dismissal of the applicant is too harsh in the circumstances. It is essentially the applicant’s case that at best, he was negligent and not dishonest, whilst it is the respondent’s far-fetched contention that the applicant was dishonest and that dismissal was therefore an appropriate sanction.
18. The charges against the applicant read as follows:
• Count 1
On or about January 2017 at or near Prieska Combined School in Prieska you committed an act of misconduct in terms of section 18 (1) (ee) of the Employment of Educators Act 76 of 1998 in that you, inter alia, committed an act of dishonesty in that you issued double invoices both to your employer and GWK. You negligently misled the School Governing Body of Prieska Combined School in terms of the above (invoice processes) while you knew or ought to have known that you were not allowed to do so.
1. You invoiced your employer for the installation of a hot water system in the hostel (boys side) with funds provided by the former for the purpose of maintenance at the hostel. You, however, also submitted a declaration to GWK for the same work which you alleged cost R 32 000.00 (e mail 14 June 2017 at 09h23). However, the invoice to your employer differs from your declaration to GWK for the same work done- (Invoices: ID/76/717, ID/ 76/697, ID/ 76/536, ID/ 81/658, IN104933).
2. You invoiced your employer for further repairs to kitchen equipment while declaring to GWK that you utilised their funds for the same purpose Invoices: ID/78/781, ID/75/435).
3. You failed to exercise your duties and responsibilities honestly as school principal in allowing (and failing to take appropriate action against) the senior household supervisor, Mrs. Z Wessels to purchase alcoholic beverages (1L Vinipack D/Red) on the account of Combined School Prieska (Huis Frank Joubert) to the amount of R 29.99 (invoice dated 04 November 2016)
19. Indeed, the applicant pleaded guilty at the internal disciplinary hearing to the first part of the charge (3.1) but insisted that he had pleaded guilty to negligence and not dishonesty. In view of same, he challenged the harshness of his sanction. EEA Section 18 misconduct offences prescribe dismissal as a sanction. There is no discretion left to the presiding Chairperson. These offences are deemed as serious and therefore, there is no alternative sanction that might be handed down.
20. The applicant in the present instance insists that at best he was negligent, and not dishonest. He had not gained anything materially from his negligence, nor had the respondent incurred any losses.
21. The respondent’s witness, Mr. Neville Fourie, an educator and deputy Chairperson of the SGB, during the time of the incident testified that indeed the respondent had funded the renovations to the boys’ hostel. He testified that the disputed invoices were authorised by the financial committee of the SGB for submission to the respondent and not to GWK, a sponsor of the school.
22. At this stage, I need to reiterate that the applicant’s testimony was that indeed they had received funds from the respondent which was used for the purpose for which the respondent had allocated them. Both the respondent witnesses confirmed same. The funds allocated by the respondent could not be used for any other purpose. Mr. Fourie also confirmed that the funds allocated by the respondent were used for the purposes they were allocated. These funds could not be used for anything other than that for which it was allocated.
23. Mr. Fourie’s testimony in the main was very clinical. He suggested, that the applicant by making declarations to both the respondent and GWK, showed an overlap of the same expenses. He did not have an issue with the funds of the respondent, but had an issue that the applicant had declared to GWK, that their monies were used for the same purposes. He insisted in his examination in chief, that there was some dishonesty on the part of the applicant for declaring the same expenses to GWK as he did to the respondent.
24. At cross-examination Mr. Fourie failed to give a response when he was asked if there was any procedure in place when making declarations. I accept that as a “no” in that there was no procedure in relation to declarations.
25. Mr. Fourie confirmed that as treasurer and chairperson of the financial committee he had become aware of these double declarations when he was informed by the debtor’s clerk of the school. He insisted that the applicant had not informed the SGB, that he was making a declaration to GWK.
26. Mr. Theron, the applicant’s witness and Chairperson of the SGB was confident that there was no need for Mr. Wessels to inform or consult the SGB, that he had made a declaration to GWK. I am inclined to accept Mr. Theron’s approach, that there was no need nor did Mr. Wessels havehad the time to adequately respond to GWK. The sponsor GWK had just pounced on Mr. Wessels to give a breakdown of how he had utilised the sponsorship allocated to the school. There were no other invoices on hand and therefore made the same declaration to GWK that he did to the respondent.
27. The above was the crime that the applicant was charged with. None of the witnesses could show, that apart from this declaration there was any other prejudice to the school; the SGB; the respondent or to the sponsor, GWK. When GWK unexpectedly sent the email requesting the information, they sought the same immediately.
28. Importantly, Mr. Fourie, the honest and credible witness that he was, conceded that the act committed by Mr. Wessels could after all not have been dishonest, but rather negligent for him to duplicate the same declaration to GWK, that he did to the respondent. Therefore, I am obliged to accept the admission by Mr. Fourie.
29. Ms. Ungerer, the Secretary of the SGB at the time of the incident testified for the respondent. Before, I go further I must state that Mr. Immelman under oath referred to Ms. Ungerer as “a two faced lying jackel”, since this was not disputed, I must accept it. In any event, she testified that the way that Mr. Wessels had responded to GWK’s email was not negligent. Mr. Wessels used the same amounts that were already given to School by the Department of Education. She insisted GWK was “big” in the community and in future the school could not ask for money, from GWK. At this stage, I wish to remind Ms. Ungrer that it was Mr. Wessels who had procured the sponsorship of R 300 000.00 through Mr. Theron’s introduction to the management of GWK. With this, undisputed testimony in mind, I will continue to evaluate the evidence before me.
30. Ms. Ungrer, continued to testify that this action did not seem to perturb Mr. Wesssels whilst others were concerned that Mr. Wessels had used the same amounts to show as expenses to both the respondent and to GWK. Ms. Ungrer had been into his office on four occasions. She was adamant, that if Mr. Wessels had been negligent he would have apologised for it.
31. She insisted that the trust relationship had broken down, and dismissal was an appropriate sanction.
32. I am of the opinion that the respondent’s view is too simplistic. It is their case that Mr. Wessels was dishonest by submitting the same information to two parties. Not one of these two witnesses had told me about the dire economic situation, the school had been in, which was tendered as evidence by the applicant’s witnesses and was not challenged by the respondent.
33. The respondent suggests, that by Mr. Wessels, whilst under pressure gave the sponsor the same information that he had given his employer was therefore dishonest and sentenced to death, so to speak.
34. When, Mr. Wessels; Mr. Theron’s and Immelman’s logic is alluded here below then one will be able to weigh these probabilities and decide on the most probable version.
35. Mr. Wessels testified in his own defence that essentially what he did was negligent and certainly not dishonest. He was under pressure to furnish GWK with a list of expenses, of what he had done with their funding, and used the information that he had used in the department’s submission. The debtor’s clerk was unable to provide the information to him. These payments that were made from the funding were towards the expenses of the school, eg. teachers’ salaries. Mr. Theron mentioned in his undisputed testimony that 11 of 23 teachers had to be paid by the school. Monies would be short for that. There was no divisibility of payments or income apart from the funding received from the respondent which had to be used for the item it was allocated for. Other than that, there were no restrictions as to how any other money collected, had to be spent in a specific allotted manner. Mr. Theron further went to testify and which testimony was not disputed, when he had from his own poacket paid salaries to teachers in the amount of well over R 2 00 000.
36. Now I must state that the experience and maturity of Mr. Theron and Mr. Immelman give another angle to the dispute. It shows the level of involvement of the Princiapal, Mr. Wessels who had always had the interest of his school at heart. He was the one that procured the sponsorship on advice from Mr. Theron. These people were more than actively involved in the school. Then one day for some odd reason, a GWK junior clerk phones to ask Mr. Wessels how they had spent the money. In the sponsorship agreement, the school could spend the funds anyway it chose.
37. These two versions hardly weigh equally. The probability that Mr. Wessels was dishonest is nil; void; nada. He certainly was under pressure in my opinion, to submit GWK with something, and he negligently submitted them with the information that he had already given to the respondent.
38. It also emerged that the debtor’s clerk had been involved in arson and files were burnt. Seemingly, and most probably she was covering up something. In any event, could she not have been the person who had approached GWK and informed them to ask Mr. Wessels for a list of expenses. No one can establish why suddenly a junior clerk at GWK would request the information that she did.
39. Mr. Immelman testified that indeed Ms. Ungerer had discussed the allegations levelled against Mr. Wessels, to GWK. He suggested that this conduct was unacceptable. I agree. No action was taken against Ms. Ungerer for her disclosing confidential information. He alleged that Ms.Ungerer was complicit in “getting rid” of Mr. Wessels. This testimony was also not challenged. He produced a copy of an article published in the Volksblad newspaper about the incident in which Ms. Ungerer had furnished information to be published. Mr. Immelman was concerned that the newspaper had not contacted the Chairperson of the School but instead interviewed Ms. Ungerer. Indeed, something does not add up.
40. Mr. Immelman was of the opinion that the sanction against the applicant was too harsh for making the same declarations to parties. No invoices were furnished to GWK. Mr. Immelman suggested that the applicant would go the extra mile for the learners and would treattraet all children equally. This was not disputed but the respondent chose to latch on to the fact that Mr. Wessels conduct at a rugby match was not of a principal when he told the referee that he should be fair. The respondent made a “mountain of a mole hill” so to speak when the principal was standing up for fairness. In many instances, I might add, the respondent’s cross- examination missed the mark by miles.
41. The respondent’s representative was called out about his knowledge of the South African Schools Act when he suggested that the school could have had opened a second bank account when both, Mr. Immelman and Mr. Theron insisted that the Act made no provisions for same. Never ask a question one does not know the answer to at cross-examination.
42. Mr. Theron’s evidence capped the case for the applicant with his blunt but honest testimony. He testified that the conduct of Mr. Wessels was a non-issue. No complaint was brought to him about Mr. Wessels financial mismanagement. It was the SGB that was responsible for the school’s funds and not the principal. At cross-examination the respondent’s representative made an issue that Mr. Wessels had testified that he was the Accounting Officer of the School. Again, I am of the opinion that the representative had missed the mark by a mile as in my opinion it is not relevant to the dispute. Mr. Theron went on to add that it was during Mr. Wessels tenure as principal that security with cash monies received was trumped up with the acquisition of a card machine where the receipt of cash payments could be minimised. This was not disputed by the respondent.
43. At cross-examination, Mr. Theron suggested that Mr. Wessels’ conduct at best could have been maladministration, not dishonesty. It was not the principal’s duty to take care of invoices and account for same. That was the task of the undesirable debtor’s clerk. She should have sent the information that GWK had sought. The respondent’s representative made an issue of the reason that Mr. Wessels not contacting the SGB when GWK sought the information. Mr. Theron’s response was direct and prudent, in that there was no need to convene an SGB meeting for that purpose. In any event, the SGB members were scattered up to 30km out of town. Mr. Wessels had not required the sanction of the SGB to furnish the information that was sought by GWK.
44. The respondent’s cross-examination was narrow and simplistic to say the least as is with some Government departments, who fail to see the bigger picture and often intervene to mess up a well- run system. In this case the department contributes the least money per annum but insists on disciplining the applicant, is a narrow insight on the part of the department. No wonder the SGB is responsible for the payment of 11 teachers. Somebody, in the present instance saw a double declaration and probably said “aha, dishonesty” but failed to see the context of the declaration; the needs of the school and the dynamics of a small two mentality.
45. Mr. Wessels was not dishonest.
COUNT 1 .3
46. In respect of this aspect of the charge much ado was made whether the wine was bought for a personnel function or end of year function or other use. It was also in contention whether Mr. Wessels had known that the wine was bought with hostel funds. In my opinion, all this testimony was irrelevant to the charge against the applicant. The crisp issue which I am to decide on is whether Mr. Wessels had disciplined Mrs. Wessels, the hostel’s matron and Mr. Wessels spouse for her purchasing wine on the hostel account.
47. I am therefore not going to dwell on irrelevant testimony that both parties laboured on which is hardly a dispute I have to decide on.
48. The material evidence that should have been presented is that in regard to whether Mr. Wwessels had disciplined Mrs. Wessels for the purchase of the wine on the hostel account.
49. In regard to this issue, Mr. Fourie’s testimony was that Mr. Wessels should have acted more strictly as it was a serious charge. In his examination in chief, he suggested that Mr. Wessels should have asked Mrs. Wessels why she used the hostel account and reverted back to the SGB. Mr. Wessels did not.
50. Mr. Wessels testified that he had issued Mrs. Wessels with a verbal warning in regard to the incident. He felt that the verbal action was adequate to change Mrs. Wessels behaviour. Though the respondent’s representative laboured over this issue, there was nothing anyone else could present as an alternative to Mr. Wessels testimony. Mr. Wessels suggested that Mrs. Wessels was an employee of the respondent and it was not the SGB’s place to know which employees of the state were reprimanded, and for what reasons. Mr. Wessels tendered the plausible suggestion that when there is an act of misconduct on the part of a department’s employee, he would call them to his office and attend to the discipline. I am inclined to accept this approach so as not to embarrass staff members, if they are properly disciplined. I am further inclined to suggest that the verbal warning issued to Mrs Wessels is in the spirit of progressive, corrective discipline which is provided for both in the EEA and the LRA.
51. Ms. Ungerer testified that Mr. Wessels had only paid back the money for the wine in the amount of R 29.99 after three discussions were held and when the investigation committee in the charges against Mr. Wessels, was when Mr. Wessels had paid for the wine. For me, the important reasoning is that he had paid for the wine, which his wife took on the hostel account. But, I cannot accept Ms. Ungerer’s suggestion that Mr. Wessels had not disciplined his Mrs. Wessels. All we have is the testimony of Mr. Wessels that he disciplined his wife and issued her with a verbal warning, then, in terms of the law, we must accept it. No one was present when Mr. Wessels alleged that he had disciplined his wife. By the way, throughout Ms. Ungerer’s investigation, she still at the arbitration could not tell if Mr.& Mrs. Wessels were married or not. In view of same, how much impetus must one put on the testimony from an investigator who had still not figured out the relationship of the parties whom she had, investigated. I am merely suggesting that the two enthusiastic witnesses’ of the respondent did not see the whole picture.
52. Mr. Fourie admitted that Mr. Wessels could have acted negligently and not dishonestly but Ms. Ungerer still does not get it. It emerged at cross-examination, that she was the person who had reported Mrs. Wessels to the Dept. of Education. She suggested that he, Mr. Wessels should have delegated disciplinary action to the Chairperson of the SGB. In law this cannot happen. The respondent is the employer of Mrs. Wessels and only the employer may discipline her, the function may not be delegated.
53. Both Mr. Immelman and Mr. Theron accepted that Mr. Wessels had indeed disciplined his wife for the purchase of the wine on the hostel account whether it was done deliberately or not. Mr. Theron added to the issue that after the incident they had to stop any overlap from the applicant’s kitchen and the hostel kitchen and the learners special needs had to be accounted for, accordingly. Seemingly, no recognition was given to this by the respondent’s enquiry. There must have been overlap in purchases because of the hostel and the applicant’s private kitchen and the food was shared from the applicant’s kitchen for learners. Once again, the respondent took a narrow approach. Was there an investigation of this incident happening previously?
54. I am satisfied that Mr. Wessels had disciplined Mrs. Wessels.
55. In his closing argument, the respondent alluded to various sections of the South African Schools Act which related to the functions of the SGB. He sought to equate the responsibility of the SGB to that of the principal. I am of the opinion that the argument is misplaced. The SGB is a collective and indeed the principal is the department’s representative, the collective is responsible for the administration of the schools funds. In the present instance there is nothing about the schools funds that are in dispute. It is whether the applicant inbe declaring to GWK the same set of information in the circumstances was he dishonest or negligent. I found that indeed he was negligent.
56. There is nothing before me to suggest that the trust relationship had broken down, in view of the applicant’s conduct. It is also my opinion that the gravity of the negligence on the part of the applicant is not serious. The impact that the sanction has had on the applicant is grossly severe. The prejudice to the respondent is non-existent. The reason for the applicant’s dismissal is not justified. The applicant’s challenge is based on reasonable grounds. Progressive discipline would in my opinion have certainly corrected the applicant’s conduct.
57. In Sidumo & another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ (2405) (CC) the Court held that the Commissioner is not required to defer to the decision of the employer but to approach the dispute in an impartial manner; taking into consideration the “totality of circumstances”. The commissioner is required to consider amongst other factors, the importance of the rule that had been breached; the reason for imposing the sanction; the basis on which the employee challenged his dismissal; the harm caused by the employee’s conduct; whether additional training and instruction may result in the employee not committing the misconduct again; the effect of the dismissal and length of the employee’s service.
58. For these brief reasons, the application must succeed. The applicant’s dismissal in the circumstances is too harsh.
59. The applicant sought compensation and that the “block” against him, be removed from persal.
60. Section 193 of the Act provides that an arbitrator may order reinstatement; re-employment or may compensate the applicant should the applicant not wish to return to work. Reinstatement may not be ordered should the employment relationship be intolerable or the reinstatement of the employee be impracticable.
61. Section 194 of the Act, limits compensation at the maximum of 12 months. Such compensation must nonetheless be just and equitable.
62. In D C Kemp t/a Centralmed v Rawlins(2009) 30 ILJ 2677 (LAC) the Court held that the following factors must be considered when awarding compensation amongst others: the nature of the reason for the dismissal; whether the unfairness was on substantive or procedural grounds, or both; the nature and the extent of the deviation from procedural requirements if on procedural grounds; the nature of the offence that the employee is guilty of and the appropriateness of the sanction; the consequences to the parties if compensation is granted or not; the impact of the offence the employee is guilty of on the side of the employer and any conduct by the parties that promotes or undermines any object of the Act.
63. The applicant testified that he had suffered severe prejudice as a result of his dismissal. He was asked to move from the residence, which he occupied. The applicant moved to Welkom at great financial cost to himself. Both his wife, who still remains unemployed and his son in matric had been negatively affected by the dismissal.
64. The applicant earns as a level 1 educator an amount that is far less than he had earned as a Principal.
65. Indeed, I am of the opinion that the applicant was greatly disadvantaged as a result of the unfair dismissal.
66. The respondent had failed to make any submission in regard to the prejudice it would suffer if I ordered maximum compensation.
67. I am convinced that compensation of 8 months’ salary be awarded to the applicant in view of the above circumstances. I am cognisant of the fact that the applicant is earning a salary since 1 March 2019, though it is far less than which the applicant had earned.
68. Though there was no deviation on the part of the respondent on procedural grounds, the impact of the substantive unfairness had been severe on the applicant. The reason for the applicant’s dismissal is certainly not justified.
69. The consequence to the respondent for such an order of compensation is not before me. The impact of the offence on the employer is not before me.
70. The applicant earned R 41 596.00 per month and is to be compensated for 8 months.
71. Indeed, the persal block ought to be lifted since the applicant’s dismissal is found to have been substantively, unfair. I am however not empowered to make such an order.
72. The dismissal of the applicant is found to have been substantively unfair.
73. The respondent is ordered to pay the applicant the sum of R 332 768.00 (three hundred and thirty two thousand seven hundred and sixty eight rand).
74. The above amount is to be paid to the applicant by no later than 30 September 2020, directly into the bank account of the applicant, into which the applicant had ordinarily received his salary.
Signed at Kimberley on this 17 day of September 2020
SHIRAZ MAHOMED OSMAN