Case Number: PSES372-18/19GP
Applicant: PSA obo Mary Magdalene Kirsten
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Misconduct
Award Date: 6 November 2020
Arbitrator: Livhu Nengovhela
Case Number: PSES372-18/19GP
Arbitrator: Livhu Nengovhela
Date of Award: 6 November 2020
In the MATTER between
PSA obo Mary Magdalene Kirsten
Department of Education -Gauteng
Union/Applicant’s representative: Tuni Madimabe
Union/Applicant’s address: 28 Melle & Jorrison Street
Telephone: 011 718 5400 /
Respondent’s representative: Matodi Modise
Respondent’s address: Provincial Department of Education: Gauteng
Sedibeng East District
14 Kruger Avenue, Vereeniging
Telephone: 011 355 0604
DETAILS OF THE HEARING AND REPRESENTATION
1. This is the award in the arbitration between Mary Magdalene Kirsten, the applicant, and Department of Education - Gauteng, the respondent. The arbitration was held under the auspices of the ELRC in terms of section 191(5)(a)(i) of the Labour Relations Act, 1995 as amended (“the LRA”) and this award is issued in terms of section 138 (7) of the Act.
2. The arbitration hearing took place on 23 October virtually Zoom hosted by the Education Labour Relations Council (ELRC).
3. The applicant was present and was represented by Mr Tuni Madimabe, an official from PSA union. The respondent was represented by Mr Matodi Modise, the labour relations officer of the respondent.
4. At the end of the hearing I agreed with the parties that they would submit their written closing arguments on or before Friday 30 October 2020. I subsequently received the closing arguments of the respondent on Monday 26 October 2020 and that of the applicant on Wednesday 28 October 2020.
5. The proceedings were digitally recorded, via Zoom
BACKGROUND TO THE DISPUTE
6. The applicant referred an unfair dismissal dispute to the ELRC on 02 August 2019 alleging that she was unfairly dismissed by the respondent on the basis of misconduct on 24 July 2019. The matter was thereafter set down for conciliation on 22 August 2020. The dispute remained unresolved at Conciliation, a certificate of non-resolution was then issued after conciliation failed. The applicant referred the matter for arbitration on 27 August 2019. I consequently proceeded with the arbitration as scheduled.
7. It was common cause that the applicant commenced employment with the respondent on 1 April 2009 and worked as an educator at Eureka School.
8. The applicant challenged that the sanction of dismissal that was imposed was too harsh.
9. No jurisdictional challenge was raised and because it was common cause that there had been a dismissal for misconduct I find that the ELRC has jurisdiction to arbitrate in the matter.
ISSUE TO BE DECIDED
10. I am to determine whether or not the applicant’s dismissal was too harsh. If I find that the applicant’s dismissal was indeed harsh, I am further required to determine the appropriate relief.
SURVEY OF THE EVIDENCE AND ARGUMENT
11. The applicant submitted a bundle of documents that was subsequently marked “A”. The respondent did not submit any bundle of documents. There were no objections and it was agreed that the documents were what they appeared to be.
12. As it is only required that an award with brief reasons be issued, the following is a summary of the relevant evidence tendered under oath by the applicant and arguments submitted by the representatives of the parties:
13. The representative of the respondent, Modise, decided to submit oral arguments since the applicant was only challenging the harshness of the disciplinary sanction of dismissal that was imposed by the respondent.
14. He argued that the applicant was dismissed since she was charged in terms of section 18 (1)(ee) of the Employment of Educators Act (EEA), 76 of 1998 which is the same as section 17 (1) of the same Act. The misconduct committed by the applicant was serious and warranted dismissal since the applicant committed fraud by falsifying her medical certificate.
15. He further argued that the falsification of the medical certificate was premeditate and required a lot of attention to detail to falsify. The applicant did not go to the doctor, but amended the dates on an existing medical certificate and submitted it to the respondent. This amounted to fraud hence dismissal was the only appropriate sanction. The applicant was also head of the department and was supposed to be exemplary to her subordinates. Dismissal, because of the issues raised above and also considering consistency, was the only appropriate sanction under the circumstances.
Mary Magdalene Kirsten
16. The applicant testified under oath that she was employed as an educator at Eureka School in Vereeniging from 1 April 2009 until her dismissal on 24 July 2020. At the time of her dismissal, she was head of department.
17. She falsified the document before submitting because she had no money to go to the doctor and she knew that her immediate supervisor would immediately want proof that she went to see a medical doctor. Dismissal was too harsh, the respondent should have considered corrective disciplinary process.
18. The applicant was charged with misconduct in terms of section 18 (1) (ee) of the EEA, and not section 17 (1). Section 18 is less serious misconduct, whereas section 17 is reserved for serious acts of misconduct. The applicant should therefore not have been dismissed.
19. The misconduct took place on 23 September 2017, disciplinary hearing took place on 29 October 2018 and the dismissal was only confirmed on 24 July 2019. The applicant continued working for the respondent for about 23 months after being aware that the misconduct took place. The respondent cannot just make a statement that the trust relation has been broken down.
20. In presenting her mitigating circumstances the applicant indicated that she has worked for the respondent since April 2009. During the process of her disciplinary process, she has continued to work for about 23 months. During this period she has received positive evaluation about her work which is found in pages 36 to 42 of the applicant's bundle.
21. Her dismissal was too harsh, particularly considering the nature of her dishonesty. She pleaded guilty at the disciplinary hearing, she continued working with no incident from the date the respondent was aware of the misconduct to the date of dismissal which took place about 23 months later. She was requesting reinstatement.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
22. According to Item 7 of the Code and the ELRC guidelines on Misconduct Arbitration, the first consideration regarding the substantive fairness of a dismissal requires a factual determination as to whether or not the employee actually contravened a rule or standard regulating conduct in the workplace. However, in this case, I am only required to decide if dismissal was the appropriate sanction. The reason being that the applicant pleaded guilty at the disciplinary hearing and the applicant was not challenging the substantive and procedural issues surrounding her dismissal. She was only contending that dismissal was too harsh and the respondent should have considered other disciplinary sanctions short of dismissal.
Was dismissal an appropriate Sanction?
23. Since guilt was not an issue in dispute, I need to determine if dismissal was an appropriate sanction or not. Section 188 (2) of the Labour Relations Act requires me when considering whether or not a reason for dismissal is fair, to take into account the Code of Good Practice ( the Code) contained in schedule 8 of the LRA. Article 7 (b) (iv) further requires me to consider whether the dismissal was an appropriate sanction or not.
24. In Sidumo & Another v Rustenburg Platinum Mines Ltd & Others (2007) 28 ILJ 2405 (CC),it was stated as follows:
“To sum up. in terms of the LRA, a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.”
25. The respondent had argued that the conduct of the applicant had affected the trust relationship with the applicant, and therefore there was no option but to dismiss the applicant. It further indicated that the applicant was charged in terms of section 18 (1) ee of the EEA which is similar to section 17 (1) of the same Act. I do not agree with the reasoning of the respondent on this matter. Acts of misconduct in section 17 are clearly identified as serious misconduct that are couched in a way that if an employee is found guilty of any of the (6) six transgression, there is no option, but dismissal.
26. However 18 (1) transgressions are not identified as serious misconduct. Further to this, subsection (3) clearly gives the presiding officer of an enquiry wide discretion of sanctions to be imposed in (a) to (J). The chairperson should still consider dismissal, “if the nature or extent of the misconduct warrants dismissal” (in paragraph (i)). Therefore the presiding officer still needs to evaluate the relevant factors and the nature or extent of the misconduct to decide if it warrants dismissal.
27. The Code has provided specific guidance in regard with appropriate sanction. The relevant factors that must be considered are:
a. The gravity of the offence, taking into account the employee’s circumstances, the nature of the job and the infringement itself.
b. Consistency in taking disciplinary action.
28. In regard with consistency the respondent argued that the respondent has always taken action against dishonesty and has always dismissed in instances where an employee was found guilty of dishonesty. Of recent another employee in the region was dismissed for a similar misconduct. This was not challenged by the applicant.
29. The gravity of the misconduct is that it is about dishonesty in that the applicant falsified a medical certificate and presented it to the respondent as a true medical certificate. It is also important to note that the evidence tendered by the respondent that such an act of misconduct required planning, time and diligent work to alter the medical certificate in question. This means the actions by the applicant were premeditated and required skill.
30. The applicant argued that no other evidence was led by the respondent to show the breakdown of the trust relationship. In fact, the applicant had testified, that the she was still working for the respondent for a period of about 22 months after the misconduct took place. Therefore no trust relationship was broken. While I agree that the respondent was tardy in handling this matter, there was nowhere in the process that suggested that respondent wanted to abandon the matter with the applicant. It was in the evidence of the applicant that immediately the respondent was aware, the principal accosted the applicant regarding the matter and the matter was escalated to the district. The gravity of the misconduct, cannot not have been mitigated by the tardiness of the respondent in handling the matter
31. It is therefore my finding that the dismissal of the applicant was an appropriate sanction
32. I accordingly make the following award: -
33. I find the dismissal of the applicant, Mary Magdalene Kirsten by the respondent, Department of Education - Gauteng to be appropriate.
34. The matter is dismissed.