ELRC 774-19/20WC
ELRC 774-19/20WC
Award Date:
16 November 2020
Case Number: ELRC 774-19/20WC
Province: Western Cape
Applicant: SADTU obo Vuyani July
Respondent: WESTERN CAPE EDUCATION DEPARTMENT
Issue: Unfair Dismissal - Misconduct
Venue: Virtually
Award Date: 16 November 2020
Arbitrator: Jonathan Gruss
Panellist/s: Jonathan Gruss
Case No.: ELRC 774-19/20WC
Date of Award: 16 November 2020
In the ARBITRATION between:
SADTU obo Vuyani July
( Applicant)
and
Western Cape Department of Education
(Respondent)
Applicant’s representative: Mr Mbalo
Applicant’s address: PO Box 624
Plettenberg Bay
6600
Telephone: 0766804121
Email: smbalo@sadtu.org.za
Respondent’s representative: Mr Vorster
Respondent’s address: Private Bag x9114
Cape Town
8000
Telephone: 021 467 9223
Telefax: 0214528612
Email: Clayton.Vorster@westerncape.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was referred for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”). The hearing was held at the District Office of the Western Cape Department of Education in George on 28 October 2020 and 19 October 2020. The arbitration commenced on 13 August 2020 utilising the Zoom virtual platform. The proceedings were electronically recorded. The applicant, Vuyani July appeared in person and was represented by Mr Mbalo, a SADTU shop steward. The respondent, Western Cape Department of Education were represented by Mr Vorster, an employee relations officer. The parties submitted closing written arguments on 6 November 2020.
ISSUE TO BE DECIDED
2. I am required to determine whether the dismissal of the applicant was both procedurally and substantively fair.
BACKGROUND
3. At the commencement of the arbitration hearing, the parties agreed that the following were accepted as common cause facts, namely:
3.1 The applicant had been employed by the respondent since 2007 as a post level 1 educator. He was dismissed on 4 September 2019 and his appeal was finalised on 4 November 2019.
3.2 Before the applicant was dismissed he taught at Kwanokuthula Primary School and earned R25395.20 per month. He was also a SADTU shop steward.
3.3 The applicant was dismissed on the following charges,
3.3.1 Charge 1: Absent yourself without a valid reason and/or permission, from Kwanokuthula Primary School, on or about the following dates; 22 November 2018 and/or 18 February 2019 and/or on 19 February 2019.
3.3.2 Charge 2: Failed to carry out a lawful order or routine instruction without just or reasonable cause at Kwanokuthula Primary School on or about the following dates; on 23 November 2018, failed to attend a morning briefing session; and/or on 26 November 2018, failed to attend a progression and promotion session.
3.4 As it relates to charge 1, the applicant claims that he was not absent from school on 22 November 2018 (he was at school) and admits that he was not at school on 18 and 19 February 2019 and he was absent from school on those dates. On 18 February 2019 he sent the principal an SMS that he would be late for work. He did not go to work in that he had attended a funeral during the weekend and he was feeling tired. On 19 February 2019 he was sick at home. He did not inform the principal that he was sick.
3.5 As it relates to charge 2, the applicant claimed that on 23 November 2018 he was at school and attended the morning session and on 26 November 2018 he reported to the HOD that he would be receiving a delivery at home from Game Stores after school hours. The briefing session was at 13H30 and it was during examinations.
3.6 As it relates to a disciplinary record, the applicant as a consequence to a plea bargain agreement received a final written warning valid for six months and a suspension without pay for two months for a transgression in that the applicant on or about 17 June 2018 unjustifiably prejudiced the administration, discipline or efficiency of Kwanokuthula Primary School by controversially disrupting a legitimate department interview process.
3.7 The applicant claims that his dismissal was unfair in that prior to his disciplinary hearing that culminated in his dismissal there was no consultation with his union. There was however correspondence relating to the subject matter. The applicant further claims inconsistency in that Saneliwe Mdashe, an educator at Kwanokuthula Primary School did not report for duty on 24 April 2019 and nothing happened to her. The sanction of dismissal was also too harsh and there were no rules breached.
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4. When the arbitration hearing reconvened on 28 October 2020, the applicant claimed as it relates to his absence on 19 February 2019, he attended a COSATU National Strike, which was protected.
5. As it relates to allegations that the respondent failed to consult with the applicant’s union because the applicant was a shop steward, the respondent’s representative indicated that they consulted with the union and invited them to consult regarding the applicant being charged for misconduct. The issue of the respondent not consulting with the applicant union was never raised in the applicant’s disciplinary hearing.
6. The applicant seeks to be retrospectively reinstated.
SURVEY OF EVIDENCE AND ARGUMENT
7. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
RESPONDENT’S EVIDENCE
8. The Respondent called two (2) witnesses, namely Mlulami Faleni and David Sani. Mr Faleni testified under oath to the following effect.
8.1 He is employed by the respondent as the school principal at Kwanokuthula Primary School, was appointed in 2016 and prior thereto since 2009 worked at another school. The applicant was a staff member that worked at his school.
8.2 On 22 November 2018 at approximately 14h20, he noticed that the applicant was not present at the school. He noticed that the applicant had left the school in that his vehicle was not at the school premises. He enquired from the deputy principal, Mr Sani if he knew as to the whereabouts of the applicant and he also asked Mr Booi, the acting HOD as to whether he knew of the applicant’s whereabouts. Mr Booi was unable to assist him. He checked the attendance register and noticed that the applicant had signed out at 14h30, and was not at school.
8.3 On 18 February 2019 at 07h58 he received an SMS from the applicant informing him that he (applicant) would be late for school. The applicant did not turn up for duty at all on that day. On 19 February 2019 the applicant also did not report for duty. The applicant further failed to inform him as the principal of his whereabouts. The preceding week the applicant was absent from work without submitting a medical certificate.
8.4 On 23 November 2018 the applicant did not attend the morning briefing session. The sessions are held twice a week. The preceding week they had a workshop at the school dealing with progressive discipline and the applicant at that stage had just returned from suspension. At the meeting he could see all those in attendance and had the applicant attended he would have noticed him. The applicant never gave him any explanation or made apologies for not attending the briefing session and this briefing session was part of the applicant’s duties. This progressive discipline session was organised by SADTU, the applicant’s union.
8.5 On 26 November 2018, the applicant failed to attend the progression and promotion workshop. This workshop was to deal with procedures for learners to progress to the next level. The applicant was not there. The applicant gave him no explanation why he did not attend the meeting. He himself attended the meeting. The educators including the applicant were reminded of this briefing that the notice was circulated informing educators of the purpose of the meeting and the applicant signed acknowledgement of the notice.
8.6 The school has an absence policy and educators are provided with a copy thereof and a copy thereof is also kept on the individual educators file. In terms of the policy that is known as staff attendance policy. The policy provides that there are times when a staff member needs to be absent from the workplace for various reasons. When this occasion arises, it is incumbent upon the staff member to request permission/authorisation in time from the principal of the school. All staff members need to inform their immediate supervisors after been authorised. Where educators are absent learners must not be left alone and therefore an educator has to be arranged to supervise learners. The applicant is aware of this policy. They have a daily electronic attendance register and this allows the school to know who is at school and what steps need to be taken to ensure learners are educated that day.
8.7 Unauthorised absence impacts negatively on learners. When an educator is going to be absent he would enquire from the educator how long he anticipates being absent so that arrangements could be taken to ensure that learners do not fall behind and that they are educated.
8.8 He has attempted to correct the applicant’s behaviour and he can recall a time when he had to charge the applicant, the applicant could not answer or explain his behaviour and the applicant even commented to him “I do not know why I am like this, I’m not usually like this”. He instructed the applicant to seek help and even spoke to the deputy principal to give the applicant a second chance. He also spoke to the applicant’s union to ask if they could help him. He also spoke to Mr Booi to see if he could counsel the applicant. Both Mr Saini and Mr Booi had a problem working with applicant.
8.9 On 16 August 2018 for example, there was an issue with the applicant not submitting results (marks). When the school reopened he had to move the applicant to another class. The applicant refused to accept the move and refused to adhere to the instruction. He eventually spoke to applicant in the presence of Mr Booi and Mr Mbeki. He had requested the applicant to accompany him to the office and the applicant in front of the learners commented how unprofessional he is.
8.10 On 13 August 2018, Mr Booi called him and enquired from him as to what arrangements were made for the applicant to teach which class. During 2018 the applicant’s supervisor was Mr Booi and Mr Booi was unaware as to the whereabouts of the applicant. He tried to call the applicant and send him an SMS. The response given to him by the applicant was that he must not call him.
8.11 As it relates to the affidavit made by Ms Jaceni, relating to him allegedly mentioning to the SGB that he would never be able to work with the applicant and that between them, one of them must leave. The statement itself amounts to transgression in that members of the SGB are not permitted to make statements and what she alleges is not true. During 2016/2018 the SGB warned her not to speak out as to what is happening at SGB meeting. As it relates to affidavit made by Mr Booi wherein he avers that on 22 November 2018, the applicant informed him that he would be attending a union meeting after school and on 26 November 2018, the applicant reported that he would be receiving a delivery at home and that he (Mr Booi) should apologise to the deputy principal, Mr Saini that he would not be attending the meeting.
8.12 Under cross examination, he intimated that the relationship he had with his educators was sound but you will always find someone who would go astray. The relationship however with the applicant was not good and where a person does not want to take instructions such the applicant, relations will not be good. He did however acknowledge the applicant as a leader and he co-opted the applicant onto committees because he is a shop steward. He usually recognises who is a school and who is not at about approximately 09h00 and 10h00. On 22 November 2020 at approximately 14h20 whilst walking around the school premises he noticed that the applicant was not at school. The applicant left the school without his authorisation. School finishes at 15h00.
8.13 As it relates to the applicant’s affidavit that the applicant on 22 November 2018 attended a union meeting the witness indicated there are procedures that must be followed if you need to attend union meetings. He did not know where the applicant was and therefore he was unaware that the applicant was allegedly attending a union meeting.
8.14 As it relates to the affidavit submitted by Saneliswe Mdashe who alleges as it relates to an inconsistency challenge that the educator was absent from work on 23 April 2019 and only returned back to work on 24 April 2019 and when she returned to work, the principal only told her as it relates to her not reporting her absence, not to do it again. The witness indicated that you cannot compare the applicant’s transgression with that of Mdashe in that he first adopts progressive discipline to correct the behaviour. Whereas it relates to the applicant, his conduct as relates to absenteeism is more serious and frequent.
8.15 As relates to the applicant’s absence from work on 19 February 2020 and the alleged COSATU March he did not know where the applicant was that the applicant never informed him that he would not be attending work but would be attending a march.
9. Mr Sani testified under oath to the following effect.
9.1 He was employed as the deputy principal at Kwanokuthula Primary School at the time when the applicant was dismissed. During March 2020 he went on early retirement. He has known the applicant since 2016 when he started working at Kwanokuthula Primary School.
9.2 On 22 November 2018 he was approached by Mr Faneli, the principal who enquired about the whereabouts of the applicant. He did not give the applicant permission to leave. Should an employee be late or not be able to perform his duties that employee must communicate his absence with the principal.
9.3 On 18 February 2019, according to a report received from Mr Faleni, the applicant had sent a SMS to Mr Faleni reporting that he would be late for work. The applicant however did not report for work that day. On 19 February 2019, the applicant was not at work, the applicant did not inform him and neither did he inform Mr Faleni that he would be absent from work. During that time Mr Booi was the applicant’s immediate supervisor.
9.4 From his communication with Mr Booi, Mr Booi was unaware of the applicant’s whereabouts for the 23 and 26 November 2018. On 23 November 2018, the applicant did not attend the morning briefing meeting. He himself was present at the meeting and the applicant usually sits close to the door at such meetings. The applicant had promised that he would be at the meeting.
9.5 On 26 November 2018, the applicant did not attend the progression and promotion meeting. The applicant was at school during the morning and he was notified of the scheduled meeting. The meeting the applicant did not attend the meeting. The applicant also did not report his absence or communicate to him or apologise.
9.6 Where an educator is not at school it has a negative impact on the classes that have to be rearranged to ensure that learners are educated. For every school day there is a plan as to what work needs to be covered with the learners.
9.7 As it relates to protected industrial action, procedures requires that the union would inform the school which employees will not be at work. He himself was unaware that the applicant was staying away because of a strike.
9.8 He confirmed what is contained in the staff attendance policy, more specifically when an employee is going to be absent from school it is incumbent on that member of staff to request permission/authorisation in time from the principal. The policy further provides that all staff members need to inform their immediate supervisor after being authorised to be absent from work. All educators are aware of this policy in that a copy of the policy is kept in the file of each educator.
9.9 Under cross examination, it was put to the witness that there was a vendetta against the applicant by the principal, Mr Faleni. The witness did not agree and indicated that this is the applicant’s version.
APPLICANT’S EVIDENCE
10. The Applicant testified to the following effect.
10.1 He was employed by the respondent as a post level I educator and had been since 2010 a member of the SGB. He was also a member of the school SMT committee. He was also the leader of the union, SADTU in that he was the regional secretary and currently he is a deputy regional secretary. He was an elected site steward (shop steward).
10.2 His working relationship with Mr Faleni started in 2015. During 2014, Mr Faleni as a union member took SADTU to court in attempt to interdict the union conference. The applicant lost the interdict with costs. They again started working together in 2016 and for few weeks they had a good relationship. However, during 2017 there were positions that he had filled, he acted as a HOD and as a consequence thereto, he became a SMT committee member. During the period they had to rotate as acting HOD’s. His relationship with Mr Faleni started to fall apart in that they were not allowed as educators to express their views. This led to him walking out of meetings and he and two other HOD’s reported the unhappiness to the circuit manager concerning the manner in which Mr Faleni was treating the educators.
10.3 The absence/ attendance policy was not a policy in that the SGB never approved this policy. Mr Faleni introduced this policy to the school himself and he referred to him (applicant) as a second principle.
10.4 On 22 November 2018 he was at school the day, he arrived at school before 08h00 in that he had to attend a union meeting after school at 14h30. The learners at that time were writing exams. During examination times, learners knockoff at 13h00 and by agreement educators would leave work at 14h00. He went to his supervisor, Mr Booi and informed him of the scheduled union meeting that he would be attending. As a regional office bearer he had to attend the meeting.
10.5 On 18 February 2019 he did not attend school. He did inform Mr Faleni via SMS that he would be late. He had attended a funeral the past weekend and had overslept. He could not go to school that Monday in that he was tired.
10.6 On 19 February 2019 he was at home and not a school. He was supporting the COSATU march and as a SADTU office bearer, he was supporting the COSATU march. He was supposed to have gone to Cape Town to participate in the march to Parliament. He phoned his union secretary, Mr Mbalo and informed him that he would not be joining them because he was still tired and would stay at home in solidarity. The respondent, Western Cape Department of Education was aware of the COSATU industrial action.
10.7 As to him allegedly not attending the morning meeting on 23 November 2018, he attended the meeting in that he knew that he was supposed to attend a regional executive committee meeting that day. As to the meeting attendance register, Mr Hempe was not a school that week but the register records him as being in attendance. Therefore, the register cannot be relied on.
10.8 On 26 November 2018, the day that the promotion progression meeting was held he was at school that day although he did not attend the meeting. On 24 November 2018 he had purchased a gym machine and this machine was going to be delivered at his house on 26 November 2018. He received a call after 13h00 informing him that there needed to be someone at home to receive the gym that was being delivered. He reported to Mr Booi, that Mr Booi must apologise to Mr Sani that he would not be able to attend the meeting. There were however other teachers that were not in attendance and according to his knowledge these teachers were called in by the principal to give reasons for the non-attendance. He was the only one that was disciplined and that there is an vendetta against him.
10.9 Mr Sani when issuing with the charge sheet indicated to him that during the meeting Mr Faleni, the principal had opened the door and asked for him (applicant). It is not normal for the principal to go around checking on educators to see if they are at school. As to his car not being at work he does not use his car every day and some days he walks to work.
10.10 When he worked under the previous principal, Mr Faku, he was never charged and disciplined and in all places where he worked prior to taking up employment in the education department, he was a Numsa shop steward.
10.11 He is not guilty on the charges and the allegations levelled against him were as a consequence to a plot. He has extended family to support as well as elderly parents.
10.12 Under cross examination as relates to the applicant on 22 November 2018, the applicant confirmed the meeting was supposed to be held at 14h30 and he left around 14h00 to attend a union meeting. The applicant was challenged as to his evidence that educators were released at 14h00 to go home during exam times in that this version was never put to either Mr Faleni nor was it put to Mr Sani. As to the applicant alleging that he did not attend work on 19 February 2019 due to him participating in an protected industrial action, he was challenged in that according to his application for leave form he recorded applying for normal sick leave. The explanation given was that he just signed the leave form. The applicant was further challenged as to him not attending the morning briefing session commenced at 07h45, that the attendance register records him signing in at 07h50. He was further challenged on him not attending on 26 November 2019 the progression/promotion session in that the session started at 13h00 whereas the applicant according to the attendance register signed out at 12h40. The applicant admitted that during briefing sessions he is rather vocal and therefore his attendance would be visible. His relationship with Mr Sani was good, Mr Sani at one stage approached him and wanted to talk to him about Mr Faleni, the principal.
11. Mr Booi testified under oath to the following effect.
11.1 He confirmed that he was acting as a HOD, July 2017 to March 2019 (21 months) and now he is a post level 1 educator.
11.2 In terms of the rules, should you as an educator want to leave the school premises you must inform your immediate line manager who would in turn communicate this with the principal. A person who is going to be absent will have to get authorisation from the principal and then inform his immediate supervisor of his absence. The policy changed during the first term of 2019 making it a prerequisite that the principal must give authorisation for an educator to be absent. He went to the deputy principal, Mr Sani and informed him that the applicant would not be attending the meeting. As it relates to the normal briefing session on 23 November 2018 he is unsure whether the applicant attended or not the meeting. However, the staff room is small and therefore they would be very packed. The morning briefing sessions are held on Wednesdays and Fridays start at 07h45.
11.3 As relates the briefing session scheduled for 26 November 2018 relating to the progression/promotion meeting, the applicant reported to him that he would be receiving a delivery from Game and that he would return to school. The applicant did not return in that the meeting (briefing session) was short.
11.4 He confirmed that the relationship between the applicant and Mr Faleni was not good. He can recall an incident shortly after the applicant returned from suspension that the applicant’s classroom was locked. Mr Faleni indicated that should the applicant return to the school you’d never be able to work with him. The relationship between the applicant and Mr Faleni started to deteriorate in that during a staff meeting the applicant posed questions to Mr Faleni. Mr Faleni would answer that he should go to his office and he will then tell him. During that year (2019) he was charged with AWOL and he knows no one else who was charged for not attending morning meetings.
11.5 Under cross examination when questioned when he was acting HOD whether there was a policy at school, the response given was that he was not sure in that at times policies would arrive and they would be amended by the Principal. During 2018 there were questions asked why policies were not amended. He confirmed that educators are permitted to leave the school premises at 15h00 and during exams at 14h00.
12 Ms Jaceni affirmed to the following effect.
12.1 She is employed as a post level I educator and since 2016 she has worked at Kwanokuthula Primary School. She has since 2017 been an SGB member. She confirmed that she testified in the applicant’s disciplinary hearing.
12.2 When the principal, Mr Faleni arrived at the school in 2016 they (educators) did not know him and he did not know them, they however accepted him. They all had a good relationship and Mr Faleni was even the applicant’s friend. When the applicant became a shop steward, Mr Faleni would asked the applicant for assistance. The applicant was called in to assist in interviews. There were times when they got into disagreements with Mr Faleni and this led to them to lay a complaint against Mr Faleni. The relationship thereafter worsened between them and Mr Faleni. Should you disagree with Mr Faleni he would not accept you.
12.3 During 2017 she was elected onto the SGB although she was not accepted in that Mr Faleni always made remarks about her. She then decided not to argue with him. It was during that period that Mr Faleni stated that he would not be able to work with the applicant anymore.
12.4 During 2015 they sat down before moving to the new school. This was done in the absence of Mr Faleni in that he had not taken up his post as yet. They also set up committees and on Mr Faleni’s arrival he did not speak about the policies and the committee the setup was not used. Things were not done in the open. During December 2018 they set up policies such as the attendance policy that were available for everyone to have access to.
12.5 Under cross examination, the witness confirmed that she was part of a group that lodged a complaint against Mr Faleni in that they were not happy with what he was doing. This is done to set them free. The witness as it relates to the date the attendance policy came into existence was shown that the policy was dated 9 March 2017. When confronted with this, she indicated that she knows this policy. As it relates the briefing session held on 23 November 2018, the witness confirmed that the applicant attended the session in that he enquired as to how to put scores/marks into the system.
ANALY SIS OF EVIDENCE AND ARGUMENT
13. Section 192 of the LRA provides that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. If the existence of the dismissal is established, the employer must prove that the dismissal is fair. Accordingly, due to the fact that dismissal was not in dispute, the onus was on the respondent to prove that the dismissal was both procedurally and substantively fair.
14. The determining issue as provided for in terms of Item 7 of Schedule 8 of the Code of Good Practice is whether the applicant committed misconduct for which he was dismissed and whether the sanction of dismissal was appropriate and therefore fair. I am also required to determine whether the dismissal was procedurally fair and whether the respondent acted inconsistently as relates to not disciplining or dismissing other employees who had allegedly committed the same misconduct as the applicant.
15. In Marapula & Others v Consteen (Pty) Ltd 1999 20 ILJ 1837 (Labour Court) the Labour Court noted the following:
"The Labour Court noted that it was faced with two conflicting versions of what had transpired. The onus was on the employer to prove that the dismissal was fair on a preponderance of probability. This onus is discharged if the employer can show by credible evidence that its version is the more probable and acceptable version. The credibility of witnesses and the probability or improbability of what they say should not be regarded as separate enquiries to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the employer's version, an investigation where questions of demeanor and impression are measured against the content of the witnesses' evidence, where the importance of any discrepancies or contradictions is assessed and where a particular story is tested against the facts which cannot be disputed and against the inherent probabilities, so that at the end of the day one can say with conviction that one version is more probable and should be accepted, and that therefore the other version is false and may be rejected with safety".
16. In determining where the probabilities lie, it is important to establish those facts which are either common cause between the parties, or which were not disputed during the course of the various witnesses' evidence. The applicant can of course only assert that the respondent's witnesses ought to be disbelieved in relation to those facts which were disputed during the course of their cross-examination. See Small v Smith 1954 (3) SA 434 (SWA) at 438E-G where Claassen J said the following:
"It is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case or defence as concerns that witness, and if need be, to inform him, if he has not been given notice thereof, that other witnesses will contradict him, so as to give him fair warning and an opportunity of explaining the contradiction and defending his own character. It is grossly unfair and improper to let a witness's evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved."
15. In order to resolve the factual dispute as it relates to absentee charges the applicant admitted that on both the 18 February 2019 and 19 February 2019 he was not at work on those days. When this arbitration initially commenced on 13 August 2020 as to the applicant’s absence from work on 19 February 2019 when narrowing the issues, the explanation given for his absence for that day was that he was sick and that is why he was absent. However, when the arbitration reconvened on 28 October 2020 the applicant claimed that the reason for his absence on 19 February 2019 was because he was participating in a protected industrial action. The problem with the applicant changing his defence is that this change only surfaced after the applicant had already placed his bets that he was off sick. This defence was not used by the applicant in his disciplinary hearing and therefore I view the applicant’s defence that he was participating in a protected industrial action with circumspect. Had there been any truth that the applicant was participating in a protected industrial action he would have never applied for sick leave in circumstances when he is not entitled to be paid. Nevertheless, when looking at absenteeism within the education sector one cannot ignore that in terms of our Constitution the rights of a child is paramount. What this means is that the rights of the child to be educated must always be a factor to take into consideration. The respondent, more specifically Kwanokuthula Primary School has a staff attendance policy that prescribes procedures to be followed when an educator needed to be absent from work and one of those procedures prescribed that the person who is going to be absent from work must first seek permission/authorisation from the principal and then inform his immediate supervisor after being authorised to be absent from work. The failure terms of the policy to seek authorisation or permission would result in an employee being absent from work without permission or authorisation.
16. The applicant and Ms Jaceni, the applicants witness tried to play down and or claim that this policy was not legitimate in that as educators they did not agree thereto. Ms Jaceni’s claimed that the absentee policy only came into existence during December 2018. The policy in question was dated 9 March 2017 and therefore her evidence concerning the legitimacy of the staff attendance policy must be rejected.
17. It is of significance that on 7 June 2019 educators that included Mr Booi and Ms Jaceni submitted a petition to the respondent wherein they requested that the charges against the applicant be dropped in that the applicant was not being treated fairly by the principal. They further felt that most of the educators at the school have transgressed especially the same charges laid against the applicant and nothing was done to them, they further concluded in the petition that they believe that the applicant is one of the best teachers when it comes to curriculum and sport and they believe further that no teacher must be singled out for the transgressions. The fact that the applicant’s witnesses participated in a petition means that they are subjective witnesses and are biased in favour of the applicant. The majority witnesses testified that Mr Faleni told the SGB that he could never work with the applicant and even before the applicant was due to resume duties after his suspension, Mr Faleni repeated his attitude towards the applicant. The applicant even testified that Mr Faleni even called him the second principal of the school and the relationship between them became strained after Mr Faleni unsuccessfully attempted to interdict SADTU conference. This led as I understand to the expulsion of Mr Faleni from SADTU. What is clear to me that there was a power struggle between the applicant and his followers and Mr Faleni. Mr Faleni clearly did not want to subject himself to the control and supervision of the principal Mr Faleni. As to whether the applicant committed the misconduct in relation to the charges or not, Mr Faleni’s evidence deals the existence of this staff attendance policy that prescribes what needs to be done should an educator need to be absent from work. The fact that Mr Faleni and the applicant had a working relationship problem between each speaks for itself. The applicant and his witnesses suggest that Mr Faleni had a vendetta against the applicant. Mr Faleni testified in relationship to the disciplinary action that led to the applicant’s suspension without pay as a sanction that before the respondent entered into the plea bargain agreement with the applicant, he was phoned and he had to give his blessing and he did so in order to give the applicant a second change. It is clear that the charges that led to the sanction of suspension without pay were serious enough to justify dismissing the applicant. Therefore, the suggestion that Mr Faleni had a vendetta against the applicant and he was framed by Mr Faleni is not credible.
18. Mr Sani, who was previously the deputy principal at Kwanokuthula Primary School when the transgressions were allegedly committed I view as a reliable and credible witness. Mr Sani was clearly hesitant to give evidence against the applicant although at the time of the arbitration he was no longer an employee of the respondent in that he had gone on early retirement. Mr Sani when employed by the respondent was a loyal member of SADTU and therefore he had nothing to gain by fabricating evidence in order to implicate the applicant. Mr Sani testified as to the existence of the staff attendance policy and confirm that all the staff are aware of the policy in that a copy is found in each educators file. Mr Sani was adamant that should an educator or staff member require to be absent from work they must seek permission/authorisation from the principal. This requirement was non-negotiable. The fact that the applicant sent a SMS to Mr Faleni on the morning of 18 February 2019 informing his principal that he would be late for work serves as proof that he was aware of the policy. Instead of coming to work on 18 February 2019 although informing Mr Faleni that he would be late, the applicant simply stayed away from work. As it relates to the charge of unauthorised absenteeism on 18 February 2019 I must find the applicant guilty on the charge. As it relates to unauthorised absence charge for 19 February 2019, I also find the applicant guilty on the charge in that he never sought permission and authorisation from his principal to be absent from work. The applicant’s submission that he was participating in a protected industrial action (COSATU stay away) is clearly an afterthought that amounts to a misrepresentation in these proceedings. Mr Sani testified that when it comes to strike action, the union would notify the respondent who in turn would notify the school. This never happened.
19. As it relates to the charge that the applicant failed to carry out a lawful order or routine instruction without just or reasonable cause on 23 and 26 November 2018 by not attending a morning briefing session on 23 November 2018 and progression/promotion session on 26 of November 2018, I find as it relates to the briefing session scheduled in the afternoon on 26 November 2018 the applicant is guilty in that contrary to the staff attendance policy he failed to seek permission from the principal to not attend the meeting. The fact that he allegedly communicated to Mr Booi that he needed to go home to take receipt of a delivery from Game Stores I find highly improbable in that had he informed Mr Booi, in contravention of the staff attendance policy, Mr Booi would have informed Mr Sani and this he did not do. As relates to the morning briefing session on 23 November 2018, the applicant alleges that he attended this meeting whereas his own witness Ms Jaceni could not remember whether the applicant was there or not. Mr Faleni testified that the applicant did not attend the morning meeting. I am satisfied that the applicant is guilty on this charge as well.
20. In relation to the inconsistency challenge that other employees failed to attend the briefing session and they were never disciplined, whereas the applicant was disciplined and dismissed. Mr Faleni explained that he would not resort to drastic measures such as formally charging employees, he would first enquire from them why they were not at a meeting or why they were not at work and should their conduct be found wanting, he would reprimand them, thereby warning them and telling them not to do it again. As it relates the applicant, it was not his first time that he transgressed and therefore progressive discipline had previously been adopted in addressing the applicant’s behaviour. When dealing with inconsistency as a challenge you must compare apples with apples are not apples with pears.
21. In the matter of South African Commercial Catering and Allied Workers Union and others v Irvin & Johnson Ltd 2002 (3) SA 250 (LAC) where the Labour Appeal Court stated as follows:
“ In my view too great an emphasis is quite frequently sought to be placed on to the "principle" of disciplinary consistency, also called the "parity principle" (as to which see eg Grogan Workplace Law 4ed at 145 and Le Roux & Van Niekerk The South African Law of Unfair Dismissal at 110). There is really no separate "principle" involved. Consistency is simply an element of disciplinary fairness ("The Dismissal of Strikers" MSM Brassey (1990) 11 ILJ 213 at 229). Every employee must be measured by the same standards (Reckitt & Colman (SA) (Pty) Ltd v Chemical Workers' Industrial Union & others (1991) 12 ILJ 806 (LAC) at 813H-I). Discipline must not be capricious. It is really the perception of bias inherent in selective discipline which makes it unfair. Where, however, one is faced with a large number of offending employees, the best that one can hope for is reasonable consistency. Some inconsistency is the price to be paid for flexibility, which requires the exercise of a discretion in each individual case. If a chairperson conscientiously and honestly, but incorrectly, exercises his or her discretion in a particular case in a particular way, it would not mean that there was unfairness towards the other employees. It would mean no more than that his or her assessment of the gravity of the disciplinary offence was wrong. It cannot be fair that other employees profit from that kind of wrong decision. In a case of a plurality of dismissals, a wrong decision can only be unfair if it is capricious, or induced by improper motives or, worse, by a discriminating management policy (as was the case in Henred Fruehauf Trailers v National Union of Metalworkers of SA & others (1992) 13 ILJ 593 (LAC) at 599H-601B; National Union of Mineworkers v Henred Fruehauf Trailers (Pty) Ltd (1994) 15 ILJ 1257 (A) at 1264). Even then I dare say that it might not be so unfair as to undo the outcome of other disciplinary enquiries. If, for example, one member of a group of employees who committed a serious offence against the employer is, for improper motives, not dismissed, it would not, in my view, necessarily mean that the other miscreants should escape. Fairness is a value judgment. It might or might not in the circumstances be fair to reinstate the other offenders. The point is that consistency is not a rule unto itself.”
22. Was the sanction of dismissal appropriate under the circumstances? The applicant claims that dismissal of the sanction was far too harsh. In determining whether the sanction of dismissal was appropriate and therefore fair, one cannot ignore that on 12 September 2018 the applicant was charged and he pleaded guilty to disrupting an interview process and for this transgression, he was issued with a final warning and a two month suspension without pay. The suspension ended on 16 November 2018 and after the applicant returned to work in the same month, he again transgressed. I therefore find the sanction under the circumstances to be appropriate and therefore fair.
23. The applicant challenged procedural fairness on the basis that the respondent contravened item 4 (2) of the LRA’s Code of Good Practice: Dismissal where it is held that discipline against a trade union representative or an employee who is an office bearer or official of the trade union should not be Institute without first informing and consulting the trade union. Forming part of the respondent’s bundle is a letter dated 27 March 2019 address to the Provincial Secretary of SADTU where therein, SADTU is informed that there were allegations of misconduct against the applicant and the respondent has taking cognisance of the provisions of Item 4 (2) of the LRA’S Code of Good Practice : Dismissal and therefore the union was invited to a meeting for consultation on the matter. The meeting was scheduled for Tuesday, 4 April 2019 at 10h00 at the respondent’s premises in Cape Town. In the letter SADTU was further informed concerning the proposed meeting, they could contact Mr C Vorster, who was the initiator in the applicant’s disciplinary hearing and the respondent’s representative in this arbitration. The applicant’s union was notified and invited to consult and they failed to heed the request to consult. The respondent therefore cannot be blamed for not consulting. Accordingly, I find that the dismissal of the applicant was procedurally fair.
AWARD
24. The dismissal of the Applicant, Vuyani July was both procedurally and substantively fair. He is not entitled to any relief.
Name: Jonathan Gruss
(ELRC) Arbitrator
Province: Western Cape
Applicant: SADTU obo Vuyani July
Respondent: WESTERN CAPE EDUCATION DEPARTMENT
Issue: Unfair Dismissal - Misconduct
Venue: Virtually
Award Date: 16 November 2020
Arbitrator: Jonathan Gruss
Panellist/s: Jonathan Gruss
Case No.: ELRC 774-19/20WC
Date of Award: 16 November 2020
In the ARBITRATION between:
SADTU obo Vuyani July
( Applicant)
and
Western Cape Department of Education
(Respondent)
Applicant’s representative: Mr Mbalo
Applicant’s address: PO Box 624
Plettenberg Bay
6600
Telephone: 0766804121
Email: smbalo@sadtu.org.za
Respondent’s representative: Mr Vorster
Respondent’s address: Private Bag x9114
Cape Town
8000
Telephone: 021 467 9223
Telefax: 0214528612
Email: Clayton.Vorster@westerncape.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was referred for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”). The hearing was held at the District Office of the Western Cape Department of Education in George on 28 October 2020 and 19 October 2020. The arbitration commenced on 13 August 2020 utilising the Zoom virtual platform. The proceedings were electronically recorded. The applicant, Vuyani July appeared in person and was represented by Mr Mbalo, a SADTU shop steward. The respondent, Western Cape Department of Education were represented by Mr Vorster, an employee relations officer. The parties submitted closing written arguments on 6 November 2020.
ISSUE TO BE DECIDED
2. I am required to determine whether the dismissal of the applicant was both procedurally and substantively fair.
BACKGROUND
3. At the commencement of the arbitration hearing, the parties agreed that the following were accepted as common cause facts, namely:
3.1 The applicant had been employed by the respondent since 2007 as a post level 1 educator. He was dismissed on 4 September 2019 and his appeal was finalised on 4 November 2019.
3.2 Before the applicant was dismissed he taught at Kwanokuthula Primary School and earned R25395.20 per month. He was also a SADTU shop steward.
3.3 The applicant was dismissed on the following charges,
3.3.1 Charge 1: Absent yourself without a valid reason and/or permission, from Kwanokuthula Primary School, on or about the following dates; 22 November 2018 and/or 18 February 2019 and/or on 19 February 2019.
3.3.2 Charge 2: Failed to carry out a lawful order or routine instruction without just or reasonable cause at Kwanokuthula Primary School on or about the following dates; on 23 November 2018, failed to attend a morning briefing session; and/or on 26 November 2018, failed to attend a progression and promotion session.
3.4 As it relates to charge 1, the applicant claims that he was not absent from school on 22 November 2018 (he was at school) and admits that he was not at school on 18 and 19 February 2019 and he was absent from school on those dates. On 18 February 2019 he sent the principal an SMS that he would be late for work. He did not go to work in that he had attended a funeral during the weekend and he was feeling tired. On 19 February 2019 he was sick at home. He did not inform the principal that he was sick.
3.5 As it relates to charge 2, the applicant claimed that on 23 November 2018 he was at school and attended the morning session and on 26 November 2018 he reported to the HOD that he would be receiving a delivery at home from Game Stores after school hours. The briefing session was at 13H30 and it was during examinations.
3.6 As it relates to a disciplinary record, the applicant as a consequence to a plea bargain agreement received a final written warning valid for six months and a suspension without pay for two months for a transgression in that the applicant on or about 17 June 2018 unjustifiably prejudiced the administration, discipline or efficiency of Kwanokuthula Primary School by controversially disrupting a legitimate department interview process.
3.7 The applicant claims that his dismissal was unfair in that prior to his disciplinary hearing that culminated in his dismissal there was no consultation with his union. There was however correspondence relating to the subject matter. The applicant further claims inconsistency in that Saneliwe Mdashe, an educator at Kwanokuthula Primary School did not report for duty on 24 April 2019 and nothing happened to her. The sanction of dismissal was also too harsh and there were no rules breached.
l
4. When the arbitration hearing reconvened on 28 October 2020, the applicant claimed as it relates to his absence on 19 February 2019, he attended a COSATU National Strike, which was protected.
5. As it relates to allegations that the respondent failed to consult with the applicant’s union because the applicant was a shop steward, the respondent’s representative indicated that they consulted with the union and invited them to consult regarding the applicant being charged for misconduct. The issue of the respondent not consulting with the applicant union was never raised in the applicant’s disciplinary hearing.
6. The applicant seeks to be retrospectively reinstated.
SURVEY OF EVIDENCE AND ARGUMENT
7. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
RESPONDENT’S EVIDENCE
8. The Respondent called two (2) witnesses, namely Mlulami Faleni and David Sani. Mr Faleni testified under oath to the following effect.
8.1 He is employed by the respondent as the school principal at Kwanokuthula Primary School, was appointed in 2016 and prior thereto since 2009 worked at another school. The applicant was a staff member that worked at his school.
8.2 On 22 November 2018 at approximately 14h20, he noticed that the applicant was not present at the school. He noticed that the applicant had left the school in that his vehicle was not at the school premises. He enquired from the deputy principal, Mr Sani if he knew as to the whereabouts of the applicant and he also asked Mr Booi, the acting HOD as to whether he knew of the applicant’s whereabouts. Mr Booi was unable to assist him. He checked the attendance register and noticed that the applicant had signed out at 14h30, and was not at school.
8.3 On 18 February 2019 at 07h58 he received an SMS from the applicant informing him that he (applicant) would be late for school. The applicant did not turn up for duty at all on that day. On 19 February 2019 the applicant also did not report for duty. The applicant further failed to inform him as the principal of his whereabouts. The preceding week the applicant was absent from work without submitting a medical certificate.
8.4 On 23 November 2018 the applicant did not attend the morning briefing session. The sessions are held twice a week. The preceding week they had a workshop at the school dealing with progressive discipline and the applicant at that stage had just returned from suspension. At the meeting he could see all those in attendance and had the applicant attended he would have noticed him. The applicant never gave him any explanation or made apologies for not attending the briefing session and this briefing session was part of the applicant’s duties. This progressive discipline session was organised by SADTU, the applicant’s union.
8.5 On 26 November 2018, the applicant failed to attend the progression and promotion workshop. This workshop was to deal with procedures for learners to progress to the next level. The applicant was not there. The applicant gave him no explanation why he did not attend the meeting. He himself attended the meeting. The educators including the applicant were reminded of this briefing that the notice was circulated informing educators of the purpose of the meeting and the applicant signed acknowledgement of the notice.
8.6 The school has an absence policy and educators are provided with a copy thereof and a copy thereof is also kept on the individual educators file. In terms of the policy that is known as staff attendance policy. The policy provides that there are times when a staff member needs to be absent from the workplace for various reasons. When this occasion arises, it is incumbent upon the staff member to request permission/authorisation in time from the principal of the school. All staff members need to inform their immediate supervisors after been authorised. Where educators are absent learners must not be left alone and therefore an educator has to be arranged to supervise learners. The applicant is aware of this policy. They have a daily electronic attendance register and this allows the school to know who is at school and what steps need to be taken to ensure learners are educated that day.
8.7 Unauthorised absence impacts negatively on learners. When an educator is going to be absent he would enquire from the educator how long he anticipates being absent so that arrangements could be taken to ensure that learners do not fall behind and that they are educated.
8.8 He has attempted to correct the applicant’s behaviour and he can recall a time when he had to charge the applicant, the applicant could not answer or explain his behaviour and the applicant even commented to him “I do not know why I am like this, I’m not usually like this”. He instructed the applicant to seek help and even spoke to the deputy principal to give the applicant a second chance. He also spoke to the applicant’s union to ask if they could help him. He also spoke to Mr Booi to see if he could counsel the applicant. Both Mr Saini and Mr Booi had a problem working with applicant.
8.9 On 16 August 2018 for example, there was an issue with the applicant not submitting results (marks). When the school reopened he had to move the applicant to another class. The applicant refused to accept the move and refused to adhere to the instruction. He eventually spoke to applicant in the presence of Mr Booi and Mr Mbeki. He had requested the applicant to accompany him to the office and the applicant in front of the learners commented how unprofessional he is.
8.10 On 13 August 2018, Mr Booi called him and enquired from him as to what arrangements were made for the applicant to teach which class. During 2018 the applicant’s supervisor was Mr Booi and Mr Booi was unaware as to the whereabouts of the applicant. He tried to call the applicant and send him an SMS. The response given to him by the applicant was that he must not call him.
8.11 As it relates to the affidavit made by Ms Jaceni, relating to him allegedly mentioning to the SGB that he would never be able to work with the applicant and that between them, one of them must leave. The statement itself amounts to transgression in that members of the SGB are not permitted to make statements and what she alleges is not true. During 2016/2018 the SGB warned her not to speak out as to what is happening at SGB meeting. As it relates to affidavit made by Mr Booi wherein he avers that on 22 November 2018, the applicant informed him that he would be attending a union meeting after school and on 26 November 2018, the applicant reported that he would be receiving a delivery at home and that he (Mr Booi) should apologise to the deputy principal, Mr Saini that he would not be attending the meeting.
8.12 Under cross examination, he intimated that the relationship he had with his educators was sound but you will always find someone who would go astray. The relationship however with the applicant was not good and where a person does not want to take instructions such the applicant, relations will not be good. He did however acknowledge the applicant as a leader and he co-opted the applicant onto committees because he is a shop steward. He usually recognises who is a school and who is not at about approximately 09h00 and 10h00. On 22 November 2020 at approximately 14h20 whilst walking around the school premises he noticed that the applicant was not at school. The applicant left the school without his authorisation. School finishes at 15h00.
8.13 As it relates to the applicant’s affidavit that the applicant on 22 November 2018 attended a union meeting the witness indicated there are procedures that must be followed if you need to attend union meetings. He did not know where the applicant was and therefore he was unaware that the applicant was allegedly attending a union meeting.
8.14 As it relates to the affidavit submitted by Saneliswe Mdashe who alleges as it relates to an inconsistency challenge that the educator was absent from work on 23 April 2019 and only returned back to work on 24 April 2019 and when she returned to work, the principal only told her as it relates to her not reporting her absence, not to do it again. The witness indicated that you cannot compare the applicant’s transgression with that of Mdashe in that he first adopts progressive discipline to correct the behaviour. Whereas it relates to the applicant, his conduct as relates to absenteeism is more serious and frequent.
8.15 As relates to the applicant’s absence from work on 19 February 2020 and the alleged COSATU March he did not know where the applicant was that the applicant never informed him that he would not be attending work but would be attending a march.
9. Mr Sani testified under oath to the following effect.
9.1 He was employed as the deputy principal at Kwanokuthula Primary School at the time when the applicant was dismissed. During March 2020 he went on early retirement. He has known the applicant since 2016 when he started working at Kwanokuthula Primary School.
9.2 On 22 November 2018 he was approached by Mr Faneli, the principal who enquired about the whereabouts of the applicant. He did not give the applicant permission to leave. Should an employee be late or not be able to perform his duties that employee must communicate his absence with the principal.
9.3 On 18 February 2019, according to a report received from Mr Faleni, the applicant had sent a SMS to Mr Faleni reporting that he would be late for work. The applicant however did not report for work that day. On 19 February 2019, the applicant was not at work, the applicant did not inform him and neither did he inform Mr Faleni that he would be absent from work. During that time Mr Booi was the applicant’s immediate supervisor.
9.4 From his communication with Mr Booi, Mr Booi was unaware of the applicant’s whereabouts for the 23 and 26 November 2018. On 23 November 2018, the applicant did not attend the morning briefing meeting. He himself was present at the meeting and the applicant usually sits close to the door at such meetings. The applicant had promised that he would be at the meeting.
9.5 On 26 November 2018, the applicant did not attend the progression and promotion meeting. The applicant was at school during the morning and he was notified of the scheduled meeting. The meeting the applicant did not attend the meeting. The applicant also did not report his absence or communicate to him or apologise.
9.6 Where an educator is not at school it has a negative impact on the classes that have to be rearranged to ensure that learners are educated. For every school day there is a plan as to what work needs to be covered with the learners.
9.7 As it relates to protected industrial action, procedures requires that the union would inform the school which employees will not be at work. He himself was unaware that the applicant was staying away because of a strike.
9.8 He confirmed what is contained in the staff attendance policy, more specifically when an employee is going to be absent from school it is incumbent on that member of staff to request permission/authorisation in time from the principal. The policy further provides that all staff members need to inform their immediate supervisor after being authorised to be absent from work. All educators are aware of this policy in that a copy of the policy is kept in the file of each educator.
9.9 Under cross examination, it was put to the witness that there was a vendetta against the applicant by the principal, Mr Faleni. The witness did not agree and indicated that this is the applicant’s version.
APPLICANT’S EVIDENCE
10. The Applicant testified to the following effect.
10.1 He was employed by the respondent as a post level I educator and had been since 2010 a member of the SGB. He was also a member of the school SMT committee. He was also the leader of the union, SADTU in that he was the regional secretary and currently he is a deputy regional secretary. He was an elected site steward (shop steward).
10.2 His working relationship with Mr Faleni started in 2015. During 2014, Mr Faleni as a union member took SADTU to court in attempt to interdict the union conference. The applicant lost the interdict with costs. They again started working together in 2016 and for few weeks they had a good relationship. However, during 2017 there were positions that he had filled, he acted as a HOD and as a consequence thereto, he became a SMT committee member. During the period they had to rotate as acting HOD’s. His relationship with Mr Faleni started to fall apart in that they were not allowed as educators to express their views. This led to him walking out of meetings and he and two other HOD’s reported the unhappiness to the circuit manager concerning the manner in which Mr Faleni was treating the educators.
10.3 The absence/ attendance policy was not a policy in that the SGB never approved this policy. Mr Faleni introduced this policy to the school himself and he referred to him (applicant) as a second principle.
10.4 On 22 November 2018 he was at school the day, he arrived at school before 08h00 in that he had to attend a union meeting after school at 14h30. The learners at that time were writing exams. During examination times, learners knockoff at 13h00 and by agreement educators would leave work at 14h00. He went to his supervisor, Mr Booi and informed him of the scheduled union meeting that he would be attending. As a regional office bearer he had to attend the meeting.
10.5 On 18 February 2019 he did not attend school. He did inform Mr Faleni via SMS that he would be late. He had attended a funeral the past weekend and had overslept. He could not go to school that Monday in that he was tired.
10.6 On 19 February 2019 he was at home and not a school. He was supporting the COSATU march and as a SADTU office bearer, he was supporting the COSATU march. He was supposed to have gone to Cape Town to participate in the march to Parliament. He phoned his union secretary, Mr Mbalo and informed him that he would not be joining them because he was still tired and would stay at home in solidarity. The respondent, Western Cape Department of Education was aware of the COSATU industrial action.
10.7 As to him allegedly not attending the morning meeting on 23 November 2018, he attended the meeting in that he knew that he was supposed to attend a regional executive committee meeting that day. As to the meeting attendance register, Mr Hempe was not a school that week but the register records him as being in attendance. Therefore, the register cannot be relied on.
10.8 On 26 November 2018, the day that the promotion progression meeting was held he was at school that day although he did not attend the meeting. On 24 November 2018 he had purchased a gym machine and this machine was going to be delivered at his house on 26 November 2018. He received a call after 13h00 informing him that there needed to be someone at home to receive the gym that was being delivered. He reported to Mr Booi, that Mr Booi must apologise to Mr Sani that he would not be able to attend the meeting. There were however other teachers that were not in attendance and according to his knowledge these teachers were called in by the principal to give reasons for the non-attendance. He was the only one that was disciplined and that there is an vendetta against him.
10.9 Mr Sani when issuing with the charge sheet indicated to him that during the meeting Mr Faleni, the principal had opened the door and asked for him (applicant). It is not normal for the principal to go around checking on educators to see if they are at school. As to his car not being at work he does not use his car every day and some days he walks to work.
10.10 When he worked under the previous principal, Mr Faku, he was never charged and disciplined and in all places where he worked prior to taking up employment in the education department, he was a Numsa shop steward.
10.11 He is not guilty on the charges and the allegations levelled against him were as a consequence to a plot. He has extended family to support as well as elderly parents.
10.12 Under cross examination as relates to the applicant on 22 November 2018, the applicant confirmed the meeting was supposed to be held at 14h30 and he left around 14h00 to attend a union meeting. The applicant was challenged as to his evidence that educators were released at 14h00 to go home during exam times in that this version was never put to either Mr Faleni nor was it put to Mr Sani. As to the applicant alleging that he did not attend work on 19 February 2019 due to him participating in an protected industrial action, he was challenged in that according to his application for leave form he recorded applying for normal sick leave. The explanation given was that he just signed the leave form. The applicant was further challenged as to him not attending the morning briefing session commenced at 07h45, that the attendance register records him signing in at 07h50. He was further challenged on him not attending on 26 November 2019 the progression/promotion session in that the session started at 13h00 whereas the applicant according to the attendance register signed out at 12h40. The applicant admitted that during briefing sessions he is rather vocal and therefore his attendance would be visible. His relationship with Mr Sani was good, Mr Sani at one stage approached him and wanted to talk to him about Mr Faleni, the principal.
11. Mr Booi testified under oath to the following effect.
11.1 He confirmed that he was acting as a HOD, July 2017 to March 2019 (21 months) and now he is a post level 1 educator.
11.2 In terms of the rules, should you as an educator want to leave the school premises you must inform your immediate line manager who would in turn communicate this with the principal. A person who is going to be absent will have to get authorisation from the principal and then inform his immediate supervisor of his absence. The policy changed during the first term of 2019 making it a prerequisite that the principal must give authorisation for an educator to be absent. He went to the deputy principal, Mr Sani and informed him that the applicant would not be attending the meeting. As it relates to the normal briefing session on 23 November 2018 he is unsure whether the applicant attended or not the meeting. However, the staff room is small and therefore they would be very packed. The morning briefing sessions are held on Wednesdays and Fridays start at 07h45.
11.3 As relates the briefing session scheduled for 26 November 2018 relating to the progression/promotion meeting, the applicant reported to him that he would be receiving a delivery from Game and that he would return to school. The applicant did not return in that the meeting (briefing session) was short.
11.4 He confirmed that the relationship between the applicant and Mr Faleni was not good. He can recall an incident shortly after the applicant returned from suspension that the applicant’s classroom was locked. Mr Faleni indicated that should the applicant return to the school you’d never be able to work with him. The relationship between the applicant and Mr Faleni started to deteriorate in that during a staff meeting the applicant posed questions to Mr Faleni. Mr Faleni would answer that he should go to his office and he will then tell him. During that year (2019) he was charged with AWOL and he knows no one else who was charged for not attending morning meetings.
11.5 Under cross examination when questioned when he was acting HOD whether there was a policy at school, the response given was that he was not sure in that at times policies would arrive and they would be amended by the Principal. During 2018 there were questions asked why policies were not amended. He confirmed that educators are permitted to leave the school premises at 15h00 and during exams at 14h00.
12 Ms Jaceni affirmed to the following effect.
12.1 She is employed as a post level I educator and since 2016 she has worked at Kwanokuthula Primary School. She has since 2017 been an SGB member. She confirmed that she testified in the applicant’s disciplinary hearing.
12.2 When the principal, Mr Faleni arrived at the school in 2016 they (educators) did not know him and he did not know them, they however accepted him. They all had a good relationship and Mr Faleni was even the applicant’s friend. When the applicant became a shop steward, Mr Faleni would asked the applicant for assistance. The applicant was called in to assist in interviews. There were times when they got into disagreements with Mr Faleni and this led to them to lay a complaint against Mr Faleni. The relationship thereafter worsened between them and Mr Faleni. Should you disagree with Mr Faleni he would not accept you.
12.3 During 2017 she was elected onto the SGB although she was not accepted in that Mr Faleni always made remarks about her. She then decided not to argue with him. It was during that period that Mr Faleni stated that he would not be able to work with the applicant anymore.
12.4 During 2015 they sat down before moving to the new school. This was done in the absence of Mr Faleni in that he had not taken up his post as yet. They also set up committees and on Mr Faleni’s arrival he did not speak about the policies and the committee the setup was not used. Things were not done in the open. During December 2018 they set up policies such as the attendance policy that were available for everyone to have access to.
12.5 Under cross examination, the witness confirmed that she was part of a group that lodged a complaint against Mr Faleni in that they were not happy with what he was doing. This is done to set them free. The witness as it relates to the date the attendance policy came into existence was shown that the policy was dated 9 March 2017. When confronted with this, she indicated that she knows this policy. As it relates the briefing session held on 23 November 2018, the witness confirmed that the applicant attended the session in that he enquired as to how to put scores/marks into the system.
ANALY SIS OF EVIDENCE AND ARGUMENT
13. Section 192 of the LRA provides that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. If the existence of the dismissal is established, the employer must prove that the dismissal is fair. Accordingly, due to the fact that dismissal was not in dispute, the onus was on the respondent to prove that the dismissal was both procedurally and substantively fair.
14. The determining issue as provided for in terms of Item 7 of Schedule 8 of the Code of Good Practice is whether the applicant committed misconduct for which he was dismissed and whether the sanction of dismissal was appropriate and therefore fair. I am also required to determine whether the dismissal was procedurally fair and whether the respondent acted inconsistently as relates to not disciplining or dismissing other employees who had allegedly committed the same misconduct as the applicant.
15. In Marapula & Others v Consteen (Pty) Ltd 1999 20 ILJ 1837 (Labour Court) the Labour Court noted the following:
"The Labour Court noted that it was faced with two conflicting versions of what had transpired. The onus was on the employer to prove that the dismissal was fair on a preponderance of probability. This onus is discharged if the employer can show by credible evidence that its version is the more probable and acceptable version. The credibility of witnesses and the probability or improbability of what they say should not be regarded as separate enquiries to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the employer's version, an investigation where questions of demeanor and impression are measured against the content of the witnesses' evidence, where the importance of any discrepancies or contradictions is assessed and where a particular story is tested against the facts which cannot be disputed and against the inherent probabilities, so that at the end of the day one can say with conviction that one version is more probable and should be accepted, and that therefore the other version is false and may be rejected with safety".
16. In determining where the probabilities lie, it is important to establish those facts which are either common cause between the parties, or which were not disputed during the course of the various witnesses' evidence. The applicant can of course only assert that the respondent's witnesses ought to be disbelieved in relation to those facts which were disputed during the course of their cross-examination. See Small v Smith 1954 (3) SA 434 (SWA) at 438E-G where Claassen J said the following:
"It is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case or defence as concerns that witness, and if need be, to inform him, if he has not been given notice thereof, that other witnesses will contradict him, so as to give him fair warning and an opportunity of explaining the contradiction and defending his own character. It is grossly unfair and improper to let a witness's evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved."
15. In order to resolve the factual dispute as it relates to absentee charges the applicant admitted that on both the 18 February 2019 and 19 February 2019 he was not at work on those days. When this arbitration initially commenced on 13 August 2020 as to the applicant’s absence from work on 19 February 2019 when narrowing the issues, the explanation given for his absence for that day was that he was sick and that is why he was absent. However, when the arbitration reconvened on 28 October 2020 the applicant claimed that the reason for his absence on 19 February 2019 was because he was participating in a protected industrial action. The problem with the applicant changing his defence is that this change only surfaced after the applicant had already placed his bets that he was off sick. This defence was not used by the applicant in his disciplinary hearing and therefore I view the applicant’s defence that he was participating in a protected industrial action with circumspect. Had there been any truth that the applicant was participating in a protected industrial action he would have never applied for sick leave in circumstances when he is not entitled to be paid. Nevertheless, when looking at absenteeism within the education sector one cannot ignore that in terms of our Constitution the rights of a child is paramount. What this means is that the rights of the child to be educated must always be a factor to take into consideration. The respondent, more specifically Kwanokuthula Primary School has a staff attendance policy that prescribes procedures to be followed when an educator needed to be absent from work and one of those procedures prescribed that the person who is going to be absent from work must first seek permission/authorisation from the principal and then inform his immediate supervisor after being authorised to be absent from work. The failure terms of the policy to seek authorisation or permission would result in an employee being absent from work without permission or authorisation.
16. The applicant and Ms Jaceni, the applicants witness tried to play down and or claim that this policy was not legitimate in that as educators they did not agree thereto. Ms Jaceni’s claimed that the absentee policy only came into existence during December 2018. The policy in question was dated 9 March 2017 and therefore her evidence concerning the legitimacy of the staff attendance policy must be rejected.
17. It is of significance that on 7 June 2019 educators that included Mr Booi and Ms Jaceni submitted a petition to the respondent wherein they requested that the charges against the applicant be dropped in that the applicant was not being treated fairly by the principal. They further felt that most of the educators at the school have transgressed especially the same charges laid against the applicant and nothing was done to them, they further concluded in the petition that they believe that the applicant is one of the best teachers when it comes to curriculum and sport and they believe further that no teacher must be singled out for the transgressions. The fact that the applicant’s witnesses participated in a petition means that they are subjective witnesses and are biased in favour of the applicant. The majority witnesses testified that Mr Faleni told the SGB that he could never work with the applicant and even before the applicant was due to resume duties after his suspension, Mr Faleni repeated his attitude towards the applicant. The applicant even testified that Mr Faleni even called him the second principal of the school and the relationship between them became strained after Mr Faleni unsuccessfully attempted to interdict SADTU conference. This led as I understand to the expulsion of Mr Faleni from SADTU. What is clear to me that there was a power struggle between the applicant and his followers and Mr Faleni. Mr Faleni clearly did not want to subject himself to the control and supervision of the principal Mr Faleni. As to whether the applicant committed the misconduct in relation to the charges or not, Mr Faleni’s evidence deals the existence of this staff attendance policy that prescribes what needs to be done should an educator need to be absent from work. The fact that Mr Faleni and the applicant had a working relationship problem between each speaks for itself. The applicant and his witnesses suggest that Mr Faleni had a vendetta against the applicant. Mr Faleni testified in relationship to the disciplinary action that led to the applicant’s suspension without pay as a sanction that before the respondent entered into the plea bargain agreement with the applicant, he was phoned and he had to give his blessing and he did so in order to give the applicant a second change. It is clear that the charges that led to the sanction of suspension without pay were serious enough to justify dismissing the applicant. Therefore, the suggestion that Mr Faleni had a vendetta against the applicant and he was framed by Mr Faleni is not credible.
18. Mr Sani, who was previously the deputy principal at Kwanokuthula Primary School when the transgressions were allegedly committed I view as a reliable and credible witness. Mr Sani was clearly hesitant to give evidence against the applicant although at the time of the arbitration he was no longer an employee of the respondent in that he had gone on early retirement. Mr Sani when employed by the respondent was a loyal member of SADTU and therefore he had nothing to gain by fabricating evidence in order to implicate the applicant. Mr Sani testified as to the existence of the staff attendance policy and confirm that all the staff are aware of the policy in that a copy is found in each educators file. Mr Sani was adamant that should an educator or staff member require to be absent from work they must seek permission/authorisation from the principal. This requirement was non-negotiable. The fact that the applicant sent a SMS to Mr Faleni on the morning of 18 February 2019 informing his principal that he would be late for work serves as proof that he was aware of the policy. Instead of coming to work on 18 February 2019 although informing Mr Faleni that he would be late, the applicant simply stayed away from work. As it relates to the charge of unauthorised absenteeism on 18 February 2019 I must find the applicant guilty on the charge. As it relates to unauthorised absence charge for 19 February 2019, I also find the applicant guilty on the charge in that he never sought permission and authorisation from his principal to be absent from work. The applicant’s submission that he was participating in a protected industrial action (COSATU stay away) is clearly an afterthought that amounts to a misrepresentation in these proceedings. Mr Sani testified that when it comes to strike action, the union would notify the respondent who in turn would notify the school. This never happened.
19. As it relates to the charge that the applicant failed to carry out a lawful order or routine instruction without just or reasonable cause on 23 and 26 November 2018 by not attending a morning briefing session on 23 November 2018 and progression/promotion session on 26 of November 2018, I find as it relates to the briefing session scheduled in the afternoon on 26 November 2018 the applicant is guilty in that contrary to the staff attendance policy he failed to seek permission from the principal to not attend the meeting. The fact that he allegedly communicated to Mr Booi that he needed to go home to take receipt of a delivery from Game Stores I find highly improbable in that had he informed Mr Booi, in contravention of the staff attendance policy, Mr Booi would have informed Mr Sani and this he did not do. As relates to the morning briefing session on 23 November 2018, the applicant alleges that he attended this meeting whereas his own witness Ms Jaceni could not remember whether the applicant was there or not. Mr Faleni testified that the applicant did not attend the morning meeting. I am satisfied that the applicant is guilty on this charge as well.
20. In relation to the inconsistency challenge that other employees failed to attend the briefing session and they were never disciplined, whereas the applicant was disciplined and dismissed. Mr Faleni explained that he would not resort to drastic measures such as formally charging employees, he would first enquire from them why they were not at a meeting or why they were not at work and should their conduct be found wanting, he would reprimand them, thereby warning them and telling them not to do it again. As it relates the applicant, it was not his first time that he transgressed and therefore progressive discipline had previously been adopted in addressing the applicant’s behaviour. When dealing with inconsistency as a challenge you must compare apples with apples are not apples with pears.
21. In the matter of South African Commercial Catering and Allied Workers Union and others v Irvin & Johnson Ltd 2002 (3) SA 250 (LAC) where the Labour Appeal Court stated as follows:
“ In my view too great an emphasis is quite frequently sought to be placed on to the "principle" of disciplinary consistency, also called the "parity principle" (as to which see eg Grogan Workplace Law 4ed at 145 and Le Roux & Van Niekerk The South African Law of Unfair Dismissal at 110). There is really no separate "principle" involved. Consistency is simply an element of disciplinary fairness ("The Dismissal of Strikers" MSM Brassey (1990) 11 ILJ 213 at 229). Every employee must be measured by the same standards (Reckitt & Colman (SA) (Pty) Ltd v Chemical Workers' Industrial Union & others (1991) 12 ILJ 806 (LAC) at 813H-I). Discipline must not be capricious. It is really the perception of bias inherent in selective discipline which makes it unfair. Where, however, one is faced with a large number of offending employees, the best that one can hope for is reasonable consistency. Some inconsistency is the price to be paid for flexibility, which requires the exercise of a discretion in each individual case. If a chairperson conscientiously and honestly, but incorrectly, exercises his or her discretion in a particular case in a particular way, it would not mean that there was unfairness towards the other employees. It would mean no more than that his or her assessment of the gravity of the disciplinary offence was wrong. It cannot be fair that other employees profit from that kind of wrong decision. In a case of a plurality of dismissals, a wrong decision can only be unfair if it is capricious, or induced by improper motives or, worse, by a discriminating management policy (as was the case in Henred Fruehauf Trailers v National Union of Metalworkers of SA & others (1992) 13 ILJ 593 (LAC) at 599H-601B; National Union of Mineworkers v Henred Fruehauf Trailers (Pty) Ltd (1994) 15 ILJ 1257 (A) at 1264). Even then I dare say that it might not be so unfair as to undo the outcome of other disciplinary enquiries. If, for example, one member of a group of employees who committed a serious offence against the employer is, for improper motives, not dismissed, it would not, in my view, necessarily mean that the other miscreants should escape. Fairness is a value judgment. It might or might not in the circumstances be fair to reinstate the other offenders. The point is that consistency is not a rule unto itself.”
22. Was the sanction of dismissal appropriate under the circumstances? The applicant claims that dismissal of the sanction was far too harsh. In determining whether the sanction of dismissal was appropriate and therefore fair, one cannot ignore that on 12 September 2018 the applicant was charged and he pleaded guilty to disrupting an interview process and for this transgression, he was issued with a final warning and a two month suspension without pay. The suspension ended on 16 November 2018 and after the applicant returned to work in the same month, he again transgressed. I therefore find the sanction under the circumstances to be appropriate and therefore fair.
23. The applicant challenged procedural fairness on the basis that the respondent contravened item 4 (2) of the LRA’s Code of Good Practice: Dismissal where it is held that discipline against a trade union representative or an employee who is an office bearer or official of the trade union should not be Institute without first informing and consulting the trade union. Forming part of the respondent’s bundle is a letter dated 27 March 2019 address to the Provincial Secretary of SADTU where therein, SADTU is informed that there were allegations of misconduct against the applicant and the respondent has taking cognisance of the provisions of Item 4 (2) of the LRA’S Code of Good Practice : Dismissal and therefore the union was invited to a meeting for consultation on the matter. The meeting was scheduled for Tuesday, 4 April 2019 at 10h00 at the respondent’s premises in Cape Town. In the letter SADTU was further informed concerning the proposed meeting, they could contact Mr C Vorster, who was the initiator in the applicant’s disciplinary hearing and the respondent’s representative in this arbitration. The applicant’s union was notified and invited to consult and they failed to heed the request to consult. The respondent therefore cannot be blamed for not consulting. Accordingly, I find that the dismissal of the applicant was procedurally fair.
AWARD
24. The dismissal of the Applicant, Vuyani July was both procedurally and substantively fair. He is not entitled to any relief.
Name: Jonathan Gruss
(ELRC) Arbitrator