PSES 781-18/19WC
PSES 781-18/19WC
Award Date:
27 November 2020
Case Number: PSES 781-18/19WC
Province: Western Cape
Applicant: NAPTOSA obo N Mapisa
Respondent: Department of Education Western Cape
Issue: Unfair Dismissal - Misconduct
Venue: Department of Education – Western Cape in George
Award Date: 27 November 2020
Arbitrator: A C E Reynolds
Panelist: A C E Reynolds
Case Number:PSES 781-18/19WC
Date of Award : 27 November 2019
In the ARBITRATION between:
NAPTOSA obo N Mapisa
(Union/Applicant)
and
Department of Education – Western Cape
(Respondent)
Union/Applicant’s representative : Mr X Zigebe (NAPTOSA)
Union/Applicant’s address : 6 Park Road
Rondebosch
CAPE TOWN
7700
Union/Applicant’s Telephone No’s : 0607916744 / 0719721208 / (021) 6868521
Union/Applicant’s Fax No’s : (021) 6892998
Respondent’s representative : Mr C Vorster
Respondent’s address : Private Bag X9114
CAPE TOWN
8000
Respondent’s Telephone No’s : (021) 4679223
Respondent’s Fax No’s : (021) 4258612/0866626022
DETAILS OF HEARING AND REPRESENTATION
1. The matter was referred for arbitration to the Education Labour Relations Council (ELRC) for a dispute relating to an alleged unfair dismissal for misconduct (alleged absenteeism and insubordination) referred in terms of section 191(5)(a)(iii) of the Labour Relations Act 66 of 1995 as amended (the LRA) and was completed over seven sittings on 2 May 2019, 19 June 2019, 8 August 2019, 11 September 2019, 12 September 2019, 15 October 2019 and 16 October 2019 at the premises of both NAPTOSA and the Department of Education – Western Cape in George. It was noted that conciliation had not taken place nor a pre-arbitration minute prepared prior to the dispute being referred to arbitration due to the expiry of the 30-day conciliation period.
2. The applicant, Ms N Mapisa, was represented by Mr X Zigebe, NAPTOSA Official, and the respondent, Department of Education – Western Cape (WCED), by Mr C Vorster, Employee Relations Officer. The first sitting of the arbitration on 2 May 2019 did not go beyond preliminary issues since all documents had not been obtained and exchanged yet. Mr Vorster for the WCED was not present at the second sitting on 19 June 2019. Proof of service to the respondent of the notification of the hearing was provided by the ELRC. Ms T Adonis, NAPTOSA Provincial Chairperson, was present as observer for the applicant on 19 June 2019. The applicant party did not wish to proceed with the arbitration in the absence of the respondent and consulted telephonically off record in my absence with the respondent. The applicant party informed that as the result of their consultations they had agreed with the respondent that the arbitration should be postponed in order for them to further explore settlement of the dispute and for outstanding documentation to be obtained. Postponement was agreed and granted and a written ruling confirming the postponement was issued on 24 June 2019. The parties informed at the next sitting on 8 August 2019 that their attempts at conciliation had been unsuccessful, whereafter the arbitration continued. Mr D Danster, NAPTOSA Shop Steward, was present as observer for the applicant on 8 August 2019. Ms D Volkwyn-Frans, Employee Relations Officer, was present as observer for the respondent on 8 August 2019, 15 October 2019 and 16 October 2019.
3. The proceedings were conducted in English with digital and electronic recordings made. It was agreed that the parties could also make their own recordings of the proceedings, but that the Panelist’s digital record would serve as the official record in the event of a dispute. A full explanation of the arbitration proceedings was provided for the benefit of the applicant, which included the onus of proof and the basic rules of evidence.
4. At the first sitting of the arbitration on 2 May 2019 the respondent raised the following preliminary issue at the commencement of the proceedings: The applicant was dismissed for misconduct based on the charges brought against her. The respondent had requested medical reports and certificates from certain hospitals to cover the applicant’s absences from duty, which the institutions failed to provide, in the absence of which the respondent had no alternative but to proceed with the disciplinary action against the applicant. An application for ill health early retirement or discharge could have been considered based on the findings of the respondent’s Health Risk Manager if the necessary medical reports were available at the time. The applicant party responded that an ill health discharge should have applied for the applicant, not a dismissal for misconduct, therefore they requested her to be re-instated and placed back on the system so that the ill health retirement process could be followed, which could not be initiated if she was dismissed. This was noted as constituting the bases of the parties’ respective cases in these proceedings.
5. At the conclusion of the final sitting of the arbitration on 16 October 2019 the parties requested that written closing arguments be submitted, with the following agreements reached in this regard:
The respondent would submit their closing arguments to the ELRC, copied to the applicant, on 24 October 2019, for forwarding to myself as the Panelist by the ELRC upon receipt.
The applicant would similarly submit their closing arguments on 29 October 2019 and the respondent their reply on 1 November 2019.
The ELRC was informed of these agreements and requested to adjust the award due date accordingly. The written closing arguments were all subsequently received on the due dates.
ISSUE TO BE DECIDED
6. The purpose of this arbitration is to determine whether the applicant, Ms N Mapisa’s, dismissal by the respondent, the Department of Education – Western Cape, for alleged misconduct was fair on both procedural and substantive grounds, as well as the appropriate relief if unfairness is found. The relief sought was retrospective reinstatement. It was confirmed that the onus of proof is on the respondent in this matter.
BACKGROUND TO THE DISPUTE
The following facts were common cause:
7. The applicant commenced service with the Eastern Cape Department of Education in 2002 and relocated in 2011 to the Western Cape Department of Education where she was appointed at Thembalethu Secondary School in George as a Post Level 1 Educator. In 2014 she was promoted to Subject Advisor Post Level 3 at the Eden and Central Karoo Education District Office (ECKED) in George. In this position she reported first to Ms Alta Raath, Head of Curriculum, thereafter to Ms Marietjie Beukes, the present Head of Curriculum, with effect from approximately 2016. The applicant was booked off sick for the following periods from February 2018 until May 2018: Mossel Bay Hospital 20 February 2018 until 2 March 2018 with diagnosis of paranoia delusion and poor insight, when she was admitted forcefully by her family due to a mental breakdown. She was then transferred on 2 March 2018 to George Psychiatric Hospital until 9 March 2018 for bipolar mood disorder with psychosis. She was thereafter transferred to Valkenberg Psychiatric Hospital in Cape Town from 9 March 2018 to 8 May 2018 with diagnosis of schizoaffective disorder bipolar type with co-morbid retroviral disease. She returned to George Hospital on 8 May 2018 and was discharged on 10 May 2018 to return home under the supervision of her family. The applicant only submitted a medical certificate to the respondent for 21 February 2018 to 1 March 2018 for the period when she was admitted to Mossel Bay Hospital. The applicant was issued a notification on 13 June 2018, which she did not sign, to attend a disciplinary hearing on 21 June 2018 to respond to the following charges:
CHARGE 1
It is alleged that you are guilty of misconduct in terms of section 18(1)(i) of the Employment of Educators Act, 76 of 1998 (hereinafter referred to as the Act), in that on or about 2 February 2018 you failed to carry out a lawful order or routine instruction without just or reasonable cause, by refusing to attend a component meeting at the Eden & Central Karoo Education District Office.
CHARGE 2
It is alleged that you are guilty of misconduct in terms of section 18(1)(i) of the Act, in that on or about 06 February 2018 you failed to carry out a lawful order or routine instruction without just or reasonable cause, by refusing to meet with Mrs M Beukes, Head of Curriculum employed at the Eden & Central Karoo Education District Office.
CHARGE 3
It is alleged that you are guilty of misconduct in terms of section 18(1)(i) of the Act, in that you failed to carry out a lawful order or routine instruction without just or reasonable cause, by refusing to attend grade 12 standard settings meeting at the Eden & Central Karoo Education District Office on the following dates:
a) 05 February 2018; and/or
b) 06 February 2018; and/or
c) 07 February 2018; and/or
d) 08 February 2018; and/or
e) 12 February 2018; and/or
f) 13 February 2018.
CHARGE 4
It is alleged that you are guilty of misconduct in terms of section 18 (1)(i) of the Act, in that you failed to carry out a lawful order or routine instruction without just or reasonable cause, by failing to submit weekly plans to Mrs Beukes, Head of Curriculum at the Eden & Central Karoo District Office for the period 02 February 2018 until 16 February 2018.
CHARGE 5
It is alleged that you are guilty of misconduct in terms of section 18(1)(j) of the Act, in that you absented yourself from Eden & Central Karoo Education District Office, by reporting late for duty on the following dates, without notifying your supervisor:
Date Time
05 February 2018 08h00
06 February 2018 08h00
07 February 2018 08h20
08 February 2018 08h15
09 February 2018 08h30
12 February 2018 08h35
13 February 2018 09h00
14 February 2018 08h15
15 February 2018 08h25
16 February 2018 07h50
28 May 2018 07h50
CHARGE 6
It is alleged that you are guilty of misconduct in terms of section 18(1)(j) of the Act, in that you absented yourself from the Eden & Central Karoo Education District, without authorization of your supervisor, on the following days:
a) 19-20 February 2018; and/or
b) 02 March 2018; and/or
c) 05-09 March 2018; and/or
d) 12 -16 March 2018; and/or
e) 19-20 March 2018; and/or
f) 22-23 March 2018; and/or
g) 26-29 March 2018; and/or
h) 03-06 April 2018; and/or
i) 09-13 April 2018; and/or
j) 16-20 April 2018; and/or
k) 23-26 April 2018; and/or
l) 30 April 2018; and/or
m) 02-04 May 2018; and/or
n) 07-11 May 2018; and/or
o) 14-18 May 2018; and/or
p) 21-25 May 2018.
8. The disciplinary hearing took place as scheduled but was postponed by the respondent due to the absence of the applicant. The hearing was rescheduled for 7 August 2018, which proceeded in the absence of the applicant and was chaired by Mr Stephen Boyes, an external Presiding Officer. The applicant was found guilty of all the charges and the sanction of dismissal was issued to her on 9 August 2018. The applicant filed a notice of intent on 17 August 2018 to appeal against the outcome due to the fact that NAPTOSA was not party to the proceedings. The final appeal was submitted to the MEC on 27 September 2018. The MEC upheld the dismissal on 26 November 2018, which serves as the date of dismissal. The applicant was paid in full for the periods that she was booked off sick. The applicant’s Persal number is 53209745 and her basic salary at the time of her dismissal was R33629,50 per month based on the final payslip dated 15 August 2018 for the period ending 31 August 2018 which was received on 12 November 2019 from the respondent.
The following facts were in dispute:
9. Whether the applicant was booked off sick prior to February 2018 from 2016 when the bipolar type disorder was already diagnosed.
10. Whether the applicant had informed the respondent of her other absences during the period February 2018 to May 2018.
11. What the reason was why the applicant was absent at the rescheduled hearing of 7 August 2018.
12. Whether the respondent was required to inform NAPTOSA of the disciplinary action instituted against the applicant.
13. Whether the respondent had followed the guidelines in Schedule 8 items 10 to 11 of the Code of Good Practice: Dismissal of the LRA in dismissing the applicant for ill health incapacity as opposed to misconduct.
14. Whether the respondent had attempted to obtain medical reports from the practitioners who had treated the applicant but was unsuccessful in achieving this.
15. Whether the medical evidence which was supplied to the respondent was only produced after the applicant’s dismissal.
16. Whether the applicant’s dismissal was fair based on both procedural and substantive grounds.
The foregoing agreed facts common cause and in dispute were e-mailed to the parties at the request of the applicant party after the sitting on 8 August 2019 via the ELRC on 19 August 2019.
SURVEY OF EVIDENCE AND ARGUMENT
17. Ms M Beukes, Head Curriculum Support for Eden and Central Karoo Education District Office (ECKED) and Ms C Buitendach, FET (Further Education and Training) Coordinator for ECKED testified under oath for the respondent.
18. Mr R Jacobs, Head of SLES (Specialised Learner and and Education Support) for ECKED, Ms D van der Vyver, Chief Occupational Therapist at George Provincial Hospital and Dr R Ori, Senior Clinician at Valkenberg Hospital in Cape Town, testified under oath for the applicant. The applicant party elected not to call the applicant, Ms N Mapisa, to testify in person due to her mental condition.
19. It is noted that it was agreed by the parties and the Panelist that Ms H Dalvie, Occupational Therapist with Alexander Forbes in Cape Town, hear the testimony of Ms van der Vyver via WhatsApp voicecall in order to assist Mr Vorster with the cross-examination of this expert witness.
20. It is further noted that it was agreed by the parties and the Panelist that the testimony of Dr Ori in Cape Town be conducted remotely via WhatsApp video and voicecall, as well as telephone landline.
21. Documents were handed in by both parties and admitted, except where indicated otherwise and in which instances the authors would be required to testify in person to the documents. It is noted that certain medical reports for the applicant were only produced or made available after the applicant’s sanction of dismissal was handed down on 9 August 2018.
22. Due to the considerable volume of evidence presented during the arbitration, only the evidence relevant to the facts in dispute are summarised below and that which was established as common cause is not repeated, unless relevant. Witnesses’ evidence in chief, under cross-examination and re-examination are summarised separately to assist with the evaluation of their evidence.
THE RESPONDENT’S EVIDENCE
23. The respondent’s case was as follows: Allegations were received about the applicant in February 2018, which were investigated at the time and found that there were grounds to charge the applicant, bearing in mind that she was booked off sick from about 2 February 2018 until approximately 28 May 2019 without anybody knowing where she was. The respondent closed the matter temporarily in order to locate the applicant. After the applicant reported for duty on 28 May 2019 she was charged for misconduct. Prior to conducting the investigation the respondent tried to get medical evidence for the applicant but in the absence of the medical reports being produced the applicant was charged for misconduct since the respondent could not wait any more. The first sitting of the disciplinary hearing was postponed after the applicant was absent due to having applied for annual leave from 21 June 2018, which she nevertheless took without the approval of her superior Ms M Beukes since the leave applied for fell over the period of this disciplinary hearing. The respondent was lenient by also postponing the second sitting of the disciplinary hearing due to the medical evidence still being absent. The applicant was present at work on the rescheduled date of the disciplinary hearing of 7 August 2018 but refused to attend the hearing, which continued in her absence. The applicant was dismissed and the subsequent appeal to the MEC was also dismissed. The medical evidence was eventually submitted by NAPTOSA but it was too late at the time. The respondent will testify that they tried to assist the applicant on various occasions but to no avail and had to wait four to five months for the information, which was too long in a professional environment. The applicant had dual union membership and belonged to both SADTU and NAPTOSA, who were both informed as a courtesy of the disciplinary action against the applicant on 13 June 2018, but the applicant did not want either union involved at the time. The respondent would prove the misconduct as stated in the charge sheet and that they tried their utmost to assist where they could to obtain the medical evidence before they proceeded with the charges against the applicant. They were not prepared to consider re-instatement as relief in this matter.
24. Ms Marietjie Beukes testified as follows under oath in her evidence in chief: As Head Curriculum Support she was the line manager of Coordinators and the Subject Advisors at Eden and Central Karoo Education District (ECKED), in which post she was appointed on 1 July 2016. Prior to that she was the General Education and Training (GET) Coordinator for grades R to 9, during which period she met the applicant as a Subject Advisor in the Curriculum component. She was referred to the charges which were addressed in the applicant’s disciplinary hearing. With respect to the first charge of failing to follow a lawful order or routine instruction to attend a component meeting, she explained the importance of the component meetings, in particular that the first component meeting is crucial since it is at the start of the school year during which training programmes and the activities that the component will focus on in the year ahead are finalised, such as school visits and logistical planning and organising, with reference too to the District Calendar issued by the Director in December for the next year. The component meeting which the applicant did not attend was on 2 February 2018. The applicant was aware of the meeting since it was circulated and the Coordinator Ms C Buitendach also confirmed that everybody had been informed of the meeting. Ms Buitendach coordinates and manages all the Subject Advisors, which included the applicant, for SENFET (Senior Phase Education and Training) which is for grades 8 to 12. When she communicated with the applicant she, the applicant, stated to her on various occasions that she was not cooperating with her, Ms Beukes, and would ignore her from time to time, with her exact words one time being “you know that I am not cooperating with you”. Regarding the second charge of the applicant refusing to meet with her on 6 February 2018, she explained that because the applicant was not cooperating and engaging and not attending meetings, whe wanted to call the applicant into her office to explain the process and motivate her, the applicant. She went to the applilcant’s cubicle in the open plan area and asked her to please come to her office to discuss something with her, which the applicant refused to do. Regarding the third charge of the applicant refusing to attend grade 12 standard settings meetings on the dates listed in the charge, she explained the importance of these meetings and that the core job of the Subject Advisors is to develop, empower and support Educators. At the beginning of a year the Subject Advisors have the opportunity to meet with all subject teachers and also reflect on the results of the past matriculation examinations and how to improve the support and communicate to Educators what should be covered and implemented in the year to come. They decided to meet in the 6 circuits for grade 12 on 6 days in the beginning of February 2018. The Subject Advisors travel to the venues and the Educators travel to the venues. The applicant was responsible for history in FET and grades 8 and 9. The applicant was charged for not attending these meetings. Her purpose in these standard settings meetings was to conduct the meeting as the Subject Advisor in history and without her presence the meetings could not take place. When she communicated with the applicant that she had to facilitate these meetings the applicant indicated that she would not be facilitating any workshops for big groups any longer, but would be prepared to do one on ones with the History Educators. It was not possible to do the standard settings one on one as all Educators collectively needed to be on the same page, and with one on one standard settings it would take the whole term to get to all the schools. With respect to the third charge for failing to submit weekly plans from 2 to 16 February 2018, she explained the purpose of the weekly plans, which was for Subject Advisors to indicate their programme for the week and which school or schools they will be visiting, that forms the database for the statistics at the end of the month. It was important that they plan ahead of time what they must do and also plan for transport. The importance of the weekly document was explained to all Subject Advisors at a FET meeting on 9 October 2017 and they were all aware of the weekly plans to be submitted weekly on a Friday, which the line managers will follow up if they do not submit the plans. The applicant was included in the e-mail examples of Advisors who were followed up and did not want to update their weekly plans. It was the line manager’s responsibility to follow up with the Subject Advisor for not submitting weekly plans. Ms Buitendach, the applicant’s line manager, did follow up with the applicant and reported that she spoke to the applicant, who still did not submit her weekly plans. With respect to the fifth charge of the applicant reporting late for duty on the listed dates without notifying her supervisor, she confirmed that they all had to be at their workstations at 07h30 and that part of the line manager’s responsibility is to monitor the signing in of their team every morning. It was important that if a Subject Advisor knew that he or she was going to be late that the line manager or herself, Ms Beukes, be informed of this. The applicant was aware that she should report for duty at 07h30. The applicant did not inform her timeously that she would be late on those dates but would indicate afterwards that she had transport problems instead of informing in advance if she knew she was going to have problems. They did try and assist the applicant when she had transport problems from where she stayed in Mossel Bay to work in George, with an example cited from around October 2017 when the Director Mr D Maarman also intervened. With respect to the sixth charge of the applicant absenting herself without the authorisation of her supervisor on the days listed in the charge, she responded as follows: The applicant did not turn up for work on 19 and 20 February 2018 and did not contact her line manager, but it was established afterwards that she left a message with the reception, which is not the standard operating procedure whereby the line manager or her, Ms Beukes, must be informed if she is going to be absent, which they are strict on. The applicant was thereafter absent for the rest of March 2018 and she tried to establish where the applicant was and whether she was ill, which she also discussed with Ms A Booysen the Labour Relations Officer, the Director and the applicant’s line manager. The Director had stated it would be serious if the applicant was absent for more than ten days without informing the line manager or herself. She established afterwards that the applicant was admitted to hospital in Mossel Bay. She telephoned the Hospital, who informed her that the applicant had absconded, was admitted again and then transferred to George Hospital. She then telephoned George Hospital and the switchboard operator in George referred her to the female ward, who informed her that the applicant had been a patient there and was transferred to Groote Schuur Hospital in Cape Town. She telephoned Groote Schuur enquring where she could find a female person who was admitted to a psychiatric ward, who in turn put her through her to Valkenberg Hospital. The Sister there informed her that the applicant was a patient at Valkenberg and she asked that her greetings and best wishes be conveyed to the applicant. Ms Y Sity the Occupational Therapist at Valkenberg telephoned her and confirmed that the applicant was a patient there, and wanted to obtain more background about the applicant and what type of work she performed. She explained the core business of the applicant’s work to Ms Sity, who informed that they will meet as a multifunctional team and get back to her, Ms Beukes. She also spoke to the applicant’s son on 22 February 2018 and on 20 February 2018 a person telephoned her who stated that he was the applicant’s brother. She informed the brother that if the applicant did not contact her, Ms Beukes, and does not tell her what is wrong, it will be difficult for her and that she must complete a leave form. Ms Booysen of Labour Relations recommended on 21 February 2018 that they deliver a letter to the applicant to request her to contact her, Ms Beukes, or the office. Mr Tserane the Messenger went to deliver the letter, to which a leave application form was attached, to the applicant on 22 February 2018. Ms Booysen sent her an e-mail on that day that Mr Tserane informed her that he went to the applicant’s house but could not find her. Only the applicant’s parents were there and informed him that the applicant was sick. He brought the letter back and asked the parents to contact her, Ms Beukes, and for the applicant to complete the leave form. The applicant did not contact her as requested. She had also asked the son and brother to get the applicant to contact her and complete a leave form. At that stage no documentation nor communication had been received from the applicant regarding her absence from work. Ms Sity the Occupational Therapist at Valkenberg, when asked, said she could not share any information with her about the applicant since it was confidential and that the respondent must contact their Head Office and ask them to forward the forms to be completed for the applicant. Ms Sity explained that she could not break the patient therapist confidentiality and just sent a letter stating that the applicant was a patient there and the son only sent a certificate of admission to the hospital. She, Ms Beukes, explained that if leave is of a certain length temporary incapacity leave forms with doctors’ reports must be completed, not just the normal leave form. She had explained the seriousness of the absence of the medical report to Ms Sity. She had made many efforts to assist the applicant with her medical condition and protect her work, with examples cited of correspondence and communications with the applicant’s son and a conversation she had with the applicant’s daughter’s School Principal informing that the mother is not well and to keep an eye on the daughter. It was not true that she did not care about the applicant. Reference was made to progressive discipline implemented previously for the applicant, firstly on 29 November 2017 at a disciplinary meeting held for similar type of misconduct by the applicant for which a written warning was issued to the applicant valid for 6 months, as well as on 25 January 2018 again for similar type of misconduct, for which a final written warning was issued to the applicant, who was absent from both meetings. Prior to the internal disciplinary proceedings instituted against the applicant she had discussed the applicant’s behaviour and lack of cooperation with her on numerous occasions. An incident occurred when the applicant came to her office and demanded that she as Head of the component answer her questions on previous matters that the applicant had referred to Labour Relations, which had happened prior to her, Mr Beukes, taking up her position, and which she indicated to the applicant she did not know about and could not investigate for her. She had requested from the applicant that she put this in writing so that she could go to the Labour Relations Officer to find out what it was that the applicant had a problem with, which the applicant refused to do because she stated she got into trouble the previous times she put things into writing. The applicant informed her that one of her colleagues had a grievance about the way she behaved towards him and that she, the applicant, had threatened him. It was referred to her as the applicant’s line manager and the applicant’s words were that that she was going to give her, Ms Beukes, until September to solve it and that she, Ms Beukes, would see what will happen if she did not provide the applicant with answers and explanations to her questions, which she referred to People Management. The applicant also wrote to a letter to the Director in September 2017 that she must be removed from her, Ms Beukes’s, component and that the Director must become her manager because of a lot of propaganda she had against the applicant. The Director called both of them into a meeting and explained to the applicant that by not cooperating with her, Ms Beukes, that she could get into trouble. He has also asked the applicant if she wanted to bring a family member or union in to assist her if she was not feeling well.This demonstrated that she had tried to assist the applicant prior to the final disciplinary action. She could not as the Head of the component trust someone who said that she would not cooperate with her and stands up in front of everybody and says you know I am not cooperating with you. She had to manage the situation and protect her position as manager of the biggest team. She had to make a tough call against the applicant although she understood there was an illness behind it, but in the absence of evidence, she had to ensure that policies are adhered to and progressive discipline is provided to anybody who transgresses.
25. Ms Beukes testified as follows under cross-examination: She responded to the question on how her interaction with the applicant was at the time that she was GET Coordinator and Deputy Chief Education Specialist and that as far as she was concerned it was a good working relationship, such as that she assisted the applicant to do Afrikaans translation and proofreading for her for documents that the applicant had to prepare for a workshop. At that point of time the applicant treated her with the respect that the position deserved. Their interaction was sporadic when the need was there because Mr S Swartz the FET Coordinator was the applicant’s direct line manager at the time and she was managed by him 99 percent of the time. Issues regarding grades 8 and 9 came to her as GET Coordinator. She would not know if there was anything discussed with the Senior Curriculum Advisors about the applicant’s behaviour at the time because Ms Raath who was the Head then used to discuss disciplinary measures and issues regading the SENFET team only with the FET Coordinator, which meetings she was not involved in. She knew however that there were processes going on as picked up on the floor. She was never called into the office by Ms Raath, but she mentioned one incident to her regarding a cell phone. She was asked to comment on the applicant’s competence since she was appointed in her current post on 1 July 2016 for the period 2016 and 2017. Mr T Harmse was the FET Coordinator at the time and she did not recall him raising any complaints from school visits about the applicant. It is noted that Mr Vorster for the respondent objected at this point since the applicant was charged for misconduct and not poor work performance. The applicant at the time of the misconduct and all the hearings was a different person from 2016. In 2016 the applicant was managed by Mr Harmse as Head of Curriculum and no lack of performance was reported to her for the applicant in 2016. She responded to the statement that all the applicant’s charges emanated in the month of of February 2018, that the same actions that the applicant had been progressively disciplined for in the previous year surfaced again in February 2018 with the final written warning issued on 1 February 2018 still on file. She then, under the guidance of the Director, compiled the charges to hand over to Labour Relations, which did not include the previous charges. After the applicant did not attend the disciplinary meetings on 29 November 2017 and 25 January 2018 she and the Labour Relations Officer went to see the Director about their concern that the applicant is harming herself by behaving in that manner. The applicant was called in to speak to the Director and herself. The reason she went to the Director is that she suspected there was something not right with the applicant and that she can only go on the facts. The Director had told the applicant that what she is doing is unreasonable and asked that she get a union or family member to help as it seemed that she was harming herself, pleading with her to cooperate with Ms Beukes as Head of Curriculum. The applicant’s words to the Diector was that there was nothing wrong with her. She viewed the applicant’s erratic behaviour as wilful and disruptive conduct with the indication on 24 July 2017 when she came into her office and said she demanded clarity on her previous grievances and issues that she had and if she, Ms Beukes, did not provide the answers she would give her time until end September 2017 and then see what happens. She was referred to the applicant’s ill health retirement application which was prepared on 13 June 2019 and what she wrote at item 11, in particular that the last months before November 2018 after the applicant returned from leave that the applicant only sat in the office, often slept at her desk, seemed disorientated, did not talk or cooperate and did not work or switch on her computer. This happened after the disciplinary process was completed for misconduct, with her behaviour deteriorating after the final sanction was given to her and she appealed against the outcome. In February 2018 she did not sleep at the desk, with her behaviour then of not cooperating and not doing standard settings and the applicant went on leave until 28 May 2018. She was only asked to complete the ill health retirement application in June 2019 after the applicant was already out of the system and NAPTOSA had persuaded the applicant to sign the form to have the confidential medical information released. Before the medical information was received they could only go on the applicant’s behaviour, making it easier for her to write the comments in item 11 in retrospect after having the bigger picture. She established that the applicant was hospitalised in Mossel Bay and George during February to May 2018 and the applicant’s son informed her on 11 March 2018 that the applicant was taken to Cape Town, whereafter she established on her own that the applicant was at Groote Schuur. She did this because as the applicant’s line manager she had to make sure that the applicant completed the relevant leave forms within the time span, otherwise the applicant could be dismissed in terms of policy. In response to the question if she would have still pursued a disciplinary hearing for misconduct if the medical report of 9 March 2018 issued by Dr Ori of Valkenberg was received prior to the disciplinary hearing and not subsequent to the applicant’s dismissal, she stated that the Occupational Therapist who she spoke to at the time said that the applicant would not be in a position to complete the forms and that she would forward the form to her for completion on behalf of the applicant. She did not think it was her call at that point in time to withdraw the charges against the applicant since the Director had already instructed on 28 May 2018 that the matter go ahead. Labour Relations put the case on hold because the applicant was on sick leave. The evidence only came later and there was no information available at the time. She had to respond to the facts and activities in her competence since she was not a Psychologist and agreed that things could change in retrospect. She did not believe she was in the position to respond to the statement that she was aware that the applicant was hospitalised for 3 to 4 months and suffered psychotic illnesses and whether this was how the respondent treated employees who were ill, she could only relate to what happened with them and that the Director instructed her to proceed with the charges and that the applicant said during the first meetings when she came back on 28 May 2018 that there was nothing wrong with her and that nothing has changed when she was asked to cooperate with her, Ms Beukes. A lot of things in retrospect could have changed if they had the reports and the applicant did turn up with representation in the disciplinary hearing, then the evidence would have been there and the whole case would have fallen in place, but they had to respond to what they had on the table. If all the information in detail was known to everybody at the time, which she put great effort in obtaining, she was certain everybody would have managed the actions against the applicant differently, but the applicant persisted in constant denial that anything was wrong with her. Ms M Jenkins the private Occupational Therapist’s report was issued after the applicant was dimissed and when the notice of intent to appeal against the sanction was submitted by NAPTOSA. Ms Jenkins met with her, Ms Buitendach and the applicant, after she issued her findings after the final hearing and progressive disciplinary process for the applicant was completed. Ms Jenkins’s main finding was that the applicant was not fit to perfom her duties. What she saw of the applicant at that time was a person not fit for duty and suffering, which is why she asked assistance from Mr R Jacobs and telephoned the Occupational Therapist and spoke to the Director. Since the applicant still did not want to cooperate with her Mr Jacobs assisted the applicant in completing the necessary forms. She had referred the applicant to the employee wellness programme (ICAS) during the progressive discipline of November 2017 after the applicant did not arrive at that disciplinary hearing, but the applicant had stated that there was nothing wrong with her. She had not seen the document from George Hospital certifying that the applicant was unfit for duty from 30 October 2018 to 31 March 2019 that was issued on 30 October 2018 by the Psychiatrist Dr B E Boon since it was not submitted to her but to Head Office. She could not comment on whether the two progressive disciplines of 22 November 2017 and 18 January 2018 were a perpetuating factor for the applicant’s condition but noted that in the second half of August 2018 the applicant’s behaviour was more visible and erratic as in 2017, because she at that time was not as an example sleeping at her desk. In response to the question on whether she felt it fair that the applicant should suffer because she could not write her own medical reports and that these were not supplied by the doctors and occupational therapists when requested, she stated that in the absence of any evidence she believed that the process taken by Labour Relations was fair.
26. Ms Beukes testified as follows under re-examination: Prior to the progressive discipline which commenced in 2017 and overlapped into 2018 she wanted and tried to reach out to the applicant, but she did not want the help, which could have been part of the disease.
27. Mrs Christina Buitendach testified as follows under oath in her evidence in chief: She was the FET (Further Education and Training) Coordinator and coordinated the Subject Advisors at secondary and high schools in Eden and Central Karoo Education Dstrict, which included Plettenberg Bay to Murraysburg, and to Heidelberg and Laingsburg. She was appointed in his position in July 2017. Prior to this appointment she was the Economics Subject Advisor at this office. She had known the applicant since she joined the office. She was referred to the charges brought against the applicant and basically confirmed what Ms Beukes had testified in her evidence in chief, which evidence is not summarised here again, save to highlight the following: With respect to the first charge, at that stage the applicant did not want to cooperate with any programme in the FET and even when she was reminded to attend a meeting she refused to do so. She reiterated the importance of the component meetings, which are important for the learners, since if they did not do their work nothing gets to the learners and these meetings determine how their work is done and impacts directly in the end on the learners. With respect to the second charge, when she went to call the applicant to go to Ms Beukes’s office she said to her that she is not going to the office and refused to go. Wth respect to the third charge, she added that the standard settings included that in each specific subject there are certain requirements such as three tests, three assignments and a project, which all Educators in a subject must do throughout the year, which is why all the Educators in a subject must be on the same page. The applicant was informed to attend that meeting and to present the History meetings at all the venues on those dates.
They had a discussion about it and the applicant refused to be part of it and said she might be able to attend the George one on 12 February 2018 but did not in in the end. With respect to the fourth charge relating to the weekly planners the applicant knew about these since they discussed these at meetings and the applicant was supposed to submit her weekly plans to her, Ms Buitendach. Even if the applicant was not part of the meeting, she took the printout of the minutes to the applicant’s desk. The weekly planners were very important since it includes the Subject Advisors’ school visits, which is her job to coordinate. The planners also helped to flag issues that they indicated is a problem at a school. With respect to the fifth charge relating to latecoming, she did ask the applicant why she came late on consecutive days and she thought the reason was that the applicant had car and transport problems and had to either rely on a lift or taxi to get to work from Mossel Bay. The applicant did have a car, but there may have been a car problem due to an accident that she was involved in. Ms Beukes had taken this up with the Director Mr Maarman since they had an office in Mossel Bay and gave her time to attend the Mossel Bay office whilst she was sorting out her transport problems. The applicant did come back but the problem was not resolved yet and the latecoming continued. The applicant was aware that she had to work from 07h30 until 16h00 every day. On the days that the applicant was late the applicant did not come to her to explain why she was late or inform in advance why she was late, but just signed in exactly when she came in and was very honest with her times. With reference to the sixth charge about unauthorised absence from duty, every employee at their office must hand in a leave form before they stay away, but if one falls ill and had not completed a sick leave form this must be done as soon as one returns to work or if the absence is going to be for a long period an arrangement must be made for the completion of the form with clear dates when the employee will be away from the office. She could not recall the reason for the absences, but did report it to Ms Beukes who handled it further on. She was aware that Ms Beukes telephoned and got hold of the applicant’s son and that the applicant was hospitalised in Mossel Bay and was then transferred to George Hospital. She was not part of all these communications of Ms Beukes but she always kept her in the loop. She did not participate in Ms Beukes’s e-mail correspondence with Ms Y Sita of Valkenberg Hospital although she was copied on this for information. It was true that Ms Beukes had not received any report from any therapist since 19 February 2018 and she knew that Ms Beukes was very worried as they did not have documentation to support the applicant’s leave and that if it was not received in time the applicant’s leave would be exhausted and it may be deducted from her salary. The medical evidence requested was obtained, but very late and every time they tried to contact the institutions they said it was personal and that they could not talk to them since they were not family. As the applicant’s supervisor and first line manager she and Ms Beukes tried to assist the applicant prior to these charges but it was difficult as it was not easy to communicate with the applicant and explain to her how important it was for her to attend the disciplinary meetings and explain her side, but she said she was not guilty and did not want to be part of any of that. Ms Beukes had engaged with the applicant more than once to help the applicant with her transport problems and tried to arrange for Head Educators to help out if the applicant could not attend a meeting. She confirmed that she conducted two progressive disciplinary meetings with the applicant and that the applicant refused to sign the documents. Prior to these meetings she, Ms Beukes and Mr Damons one of the Managers of the assessment part, had a consultation meeting with the applicant in she thought October 2017, when the applicant wanted to perform the year end verification process differently by asking the Educators to bring the material to her in the office instead of her going to them, but the applicant persisted in doing it differently and they had to start the disciplinary process. It was difficult for her to work with the applicant when she became her direct line manager since the applicant basically rejected everything, refusing to cooperate and get involved. It was not like that initially but it became like that, with the applicant starting to do her own thing. She never had anything against the applicant prior to the disciplinary actions and always thought that they had a good relationship. She once or twice gave the applicant a lift to the taxi rank and as colleagues they once or twice drove to Beaufort West and Cape Town together and she never felt the relationship between them was not good. She felt that they had a closer relationship than the other Advisors. She had no grudge against the applicant or anybody else.
28. Ms Buitendach testified as follows under cross-examination: She was surprised that the applicant would refuse everything requested of her in the month of February 2018 compared to her behaviour the past three years but her behaviour started to change for a period of 3 to 4 months from October 2017 and her behaviour just continued when the new term stared. Prior to the disciplinary meeting of November 2017 and comparing how she knew the applicant as a colleague the applicant really tried to be there and do everything and be part of the structure but after an incident in more or less October 2017 her behaviour started to change and everything was different. She was not aware of the applicant’s allegations that around that period when she started to refuse to do things that someone told her that there is a person who sent out pictures of her naked to social media and this was never brought to her attention. She had noted on the progressive discipline documents that the applicant had refused to sign these. The applicant would in the past not usually refuse to execute her duties as prescribed and would do what was expected of her. The applicant never spoke to her about plans to sabotage the aims of the respondent. She was not aware when they were colleagues and travelling and working together that the applicant had problems in working with other people. As one of the Advisors that she had to coordinate she would expect other things now from the applicant and experienced her in another way, such as in the past it did not matter to her or know whether the applicant handed in her weekly plans or not. With respect to the weekly submissions, she was aware that the applicant’s computer would not work properly and she had problems with it and often reported this to them. It took a month or two after she was appointed in her new job at the end of 2017 that she realised what had to be handed in where and when, such as the weekly plans. The interventions that they implemented when they saw that the applicant was reporting late for duty on consecutive days from 5 to 16 February 2018 consisted of talking to the applicant to establish if there was a problem, when the applicant admitted there was a problem with transport and the Director was lenient by giving her a few days in the Mossel Bay office to sort out her transport problem. They let it go for about two weeks and after that they said that it could not continue like that and they realised that it was not going to be resolved. After the intervention the applicant’s timekeeping was better but the problem was definitely not solved as there were still days that she came in late. She could not remember if the applicant approached her during the period 22 November 2017 to 18 January 2018 to inform her that she had a medical condition, but that was over the December holidays. The applicant did not attend both those disciplinary meetings with the response that she is not going to attend a meeting like that. The communication with the Occupational Therapist Ms van der Vyver was attended to by Ms Beukes since all leave and sick leave went to Ms Beukes. She once spoke to Ms van der Vyver when she called and Ms Beukes was not available when she confirmed with Ms van der Vyver that the applicant worked for them and she thought that Ms van der Vyver made and appointment to come and see them about the applicant. She was however not involved in the communications and with the stakeholders from Health but was copied in on conversations but never saw the documents since they were confidential. She was not the custodian of the employees’ leave files but most of the time the leave forms were handed in to her and she took them to Ms Beukes to sign permission after she had checked to ensure that they were completed. She confirmed that she did not communicate with any of the stakeholders but was present when Ms M Jenkins the private Occupational Therapist gave feedback on the applicant’s assessment. She could see in retrospect that the conditions that the applicant was diagnosed with could have had an impact on her behaviour. In response to the question on whether she experienced the applicant as paranoid and argumentative when she was charged, she stated that what she experienced was refusal of basically everything. She recalled two incidents in the office when the applicant was aggressive to some of the colleagues prior to the notices and meetings and prior to her being charged. She was referred to the report of the Occupational Therapist Ms M Jenkins of 3 September 2018 in which it was noted that the applicant moved and spoke slowely and that her facial expression was limited, and confirmed that she definitely observed the same with the applicant. She as line manager did not ask the applicant if there was any medical condition or illness when she observed that, but did know that Ms Beukes spoke to the applicant about this. She could not confirm the collateral information provided in Ms Jenkins’s report nor comment on certain of the observations made by Ms Jenkins and the information that Ms Beukes provided in the applicant’s ill health retirement application, but did know that the applicant experienced problems in the relationship with her Senior Curriculum Planner in Cape Town and History Specialist in the Province in the end, but not always. From the short period that they worked as Coordinator and Advisor she experienced the applicant’s behaviour difficult and found it very tiring to work with her in the end.
29. Ms Buitendach testified as follows under re-examination: She never saw the four medical reports of Ms van der Vyver, Ms Jenkins, Dr Boon and Dr Ori for the applicant before and had only really seen them here at the arbitration. She did not think that Ms Beukes had seen any of these before either. Without these medical reports to guide they would definitely not have known what the applicant’s problem is. The applicant just said there was nothing wrong with her. While the applicant was still at work she asked the applicant to rather go and see a doctor but she said no, that she had no problems.
THE APPLICANT’S EVIDENCE
30. The applicant’s case was as follows: They were of the view that the respondent had firstly taken an unfair decision to dismiss the applicant on the basis that the disciplinary hearing was conducted in the absence of the applicant. The respondent had a duty and responsibility to inform NAPTOSA as the applicant’s trade union about the the dates of the disciplinary hearings so that they could have made arrangements to be present to assist the applicant. The decision was secondly unfair since by the time the charges were brought to the attention of the applicant she had been hospitalised at different hospitals for the period of approximately four months between 20 February 2018 to 4 May 2018, which included Mossel Bay Hospital from where she was transferred to George Hospital and then to Valkenberg Hospital in Cape Town. The diagnosis which they looked at was schizoaffective disorder bipolar type, which was a combination of schizophrenia and mood disorder. At the time the applicant was admitted on 20 February 2018 it was not a voluntary admission but a forced admission by her family against her will. The applicant was discharged from Valkenberg Hospital on 4 May 2018 as an out patient and assigned to her son for monitoring while she was still under doctors’ orders until 28 May 2018. The charges against the applicant emanated immediately after the applicant was discharged from hospital, which in their view indicated the respondent’s stance that they did not want to assist and support the applicant in her condition, but adopted a punitive approach and chose to charge the applicant for misconduct instead of following ill health discharge processes. They therefore regarded the conduct of the respondent as procedurally and substantively unfair and requested an order that the applicant be reinstated with retrospective compensation from the date of dismissal of 26 November 2018, with her last payment of remuneration being on 15 November 2018.
31. Mr Roger Jacobs testified as follows under oath in his evidence in chief: He was presently the Head of SLES (Specialised Learner and Educator Support). They had a psychological sub component in SLES and those officials must be registered as psychologists. In addition they also employed social workers and learning support advisors and an occupational therapist and had a HIV AIDS section. The applicant was a colleague who worked as History Advisor in the same office and he knew her from when she started working for the respondent. In 2018 he was the Shop Steward for NAPTOSA for ECKED. The applicant never brought the charge for 18 January 2018 to his attention as the Shop Steward for the District. He explained his role as Shop Steward at the time. He was not given the opportunity to advise the applicant regarding the notice of the disciplinary hearing issued to her on 13 June 2018 for the hearing to be held on 21 June 2018, although the seniors were definitely aware of this. Neither the seniors nor the applicant informed him of this hearing. The applicant came to see him after she was dismissed. Ms Beukes requested him before the applicant was dismissed to conduct a conflict mediation session between the applicant and Mr T Molefe, the IsiXhosa Subject Advisor. He had the two parties in his office and tried to reconcile them at that stage, but the mediation was unsuccessful since Mr Molefe was very upset and the applicant was very emotional on that particular day. This happened between 3 to 6 months before the applicant was dismissed. After the session with Mr Molefe the Director and Ms Beukes consulted with him with respect to the applicant as he at that stage was still registered as an Educational Psychologist. The applicant told me that she consulted Dr C Swanepoel, whom he knew, and he telephoned Dr Swanepoel and invited her to join him, the Director and Ms Beukes in a meeting. At that stage he recalled that the applicant was taken up in the Neuro Clinic in George for about a week. The applicant attended the Neuro Clinic and returned to work. After the applicant informed him of her dismissal he immediately telephoned Ms B Probart who is the NAPTOSA Office Manager in George. Ms Probart assisted the applicant with her appeal since the applicant could not complete the appeal form himself at that stage. He confirmed that the applicant could not complete documents herself at the time. He had observed the applicant at various stages and at that particular stage she was very lethargical, calm, helpless, hopeless, did not talk a lot and he got the impression that she did not understand the detail of the form and what was asked of her. As a layperson he observed that the applicant was definitely not rational and during the conversation he had with the applicant she had delusions and extreme paranoia about her phone and computer. According to his knowledge this was indicative of psychotic behaviour and the psychosis that he observed at that stage he also conveyed to Dr Boon and Ms van der Vyver at George Hospital. Everyone in the office could see she was not healthy and not behaving in the rational manner as expected, and that even a layperson could see that there was something seriously wrong. He was not aware that the applicant was in February 2018 admitted to Mossel Bay Hospital, later transferred to George Hospital and then later to Valkenberg Hospital, and only heard about this afterwards. He did not regard it as a fair approach by the respondent for a person who was admitted for almost 4 months in a mental institution to be charged for misconduct after returing to work, since if one had been hospitalised that long in Valkenberg it showed the severity of the condition that she has been diagnosed with. One would have expected Valkenberg to communicate with the respondent and to support the applicant in her work and as far as Ms Beukes told him this did not happen and that Valkenberg did not communicate with Ms Beukes about the applicant’s condition, which to him was very unfortunate. In response to the question on who is the victim in the entire process, he stated that he at that stage remembered that he had an open conversation with Ms Beukes discussing what to do if they could see if a person is not functioning and she herself does not acknowledge, with total denial, and the person gets cross, if there are policies to assist the person to go on sick leave or to be medically boarded when one is reliant on the person herself to admit she is sick and go for help. He gave the example if something happened to him and he is totally out of touch with reality that hopefully his wife and family would assist to get him medically boarded. In the case of the applicant there was no such support, only the two children, with no person to assist and take her to hospital. They all, including Ms Beukes, realised that there was something seriously wrong with the applicant. In his view it would have been better if the applicant had been discharged for being medically boarded because of ill health.
32. Mr Jacobs testified as follows under cross-examination: He agreed that it was the responsibility when someone receives a disciplinary notice to inform their union. The applicant did not inform him about the previous disciplinary action against her in November 2017. He agreed that it was not the fault of the respondent and confirmed that the applicant’s rights were conveyed to her in the notice. He was aware that Ms Beukes and Ms Buitendach tried to to support and assist the applicant during 2017, especially Ms Beukes who asked him to assist in the first place. It was during that time that Ms Beukes asked him to assist to reconcile the applicant and her colleague. At that stage he was not aware that the applicant had not attended the two progressive disciplinary meetings and it was only afterwards that Ms Beukes told him that the applicant did not attend the meetings and that she informed the respondent that she was not going to attend them. As to whether somebody states she is not going to attend depended on the state of the person. For a normal rational person it would be the person’s fault and for a psychotic person who was not in touch with reality it would not be the same. From a manager’s perspective and whether it was unfair for the respondent to proceed with disciplinary action in the absence of medical evidence as to the applicant’s condition, he responded that it was difficult as a manager since rationally you knew it was a severe medical condition but you had somebody who did not admit and go to hospital and seek help and present evidence and have to decide how to handle that. He thought Ms Beukes’s strategy at the time was to put pressure on the applicant to seek medical help, and that she meant well by doing that. Each case was however unique and the applicant did not have good support in that the family were not forthcoming to assist and he believed Ms Beukes did try to contact children and also spoke to the applicant’s brother. He would probably have dealt with this differently from a manager’s perspective as a Psychologist who was not registered at present. From a policy point of view there were not many tools for managers to deal with these type of situations, since it is expected from the individual self to get medical evidence, which in this case was not possible, with complete denial and the applicant unable to even complete a form. He believed that Ms Beukes was not mailicious and had really tried her best, that he could not fault her, nor the applicant, but it was hoped that it could be learnt from this that if he for example got dismissed because of psychosis and it was seen that he walked up and down the stairs and did not get someone to represent thim that he was not rational at that stage. After the meeting with Dr Swanepoel and the Director the applicant went for therapy sessions with Dr Swanepoel, who had treated the applicant before, and she as Clinical Psychologist recommend that the applicant be admitted to the Neuro Clinic for a week. He could not remember the exact dates of that and it was noted that the no documentary evidence was submitted by the parties with respect to the applicant’s admission to the George Neuro Clinic. He could however confirm that himself and Ms Beukes had a meeting with Dr Swanepoel and the Occupational Therapist of the Neuro Clinic after the applicant’s discharge to discuss her re-integration back in the workplace. Ms Beukes told him that the applicant had gone missing from March 2018 and that he was aware that Ms Beukes had tried to get hold of the applicant between March and May 2018 and that contact was made but that she was not aware before that where the applicant was. He was aware that Ms Beukes struggled to get the medical reports from the respective hospitals and specialists, in particular from Valkenberg, to complete the temporary incapacity leave for the applicant. Ms Beukes told him that Valkenberg would not give her the information since she was not a relative of the applicant, and he would testify that she tried to get the evidence but failed to do so. In response to the question whether it was the fault of the respondent to discipline the applicant for misconduct after trying after four months to get the medical evidence he stated that in cases like that when the person is clearly incapacitated any rational person could see that she was not a normal functioning individual. The respondent’s policies should provide for them to put the person on incapacity instead of them expecting the person themselves to take the responsibility when the person is not capable of doing so him/herself and have to rely on others to do so for them. He responded to the statement that from a manager’s perspective that one could not work outside the policy and have to work within the framework and in the absence of medical reports and the disciplinary code it was fair to charge the applicant, it was not the applicant’s fault that she got sick with psychosis and he regarded it as ethically unfair to charge someone for misconduct if he or she was sick. He knew that Ms Beukes tried her best to assist, had no malicious intent and was extremely distraught the day when the applicant’s appeal was unsuccessful. He knew for a fact looking at the medical evidence that that the applicant should not have been dismissed for misconduct. Their policies did not make provision for this type of case, whereby Ms Beukes could not execute the right decision. He did not have professional engagements with the applicant in 2017 as a manager, but did know that there was a marked difference in the applicant’s behaviour in meetings, specifically a wellness day session that he organised in October 2017 when the applicant got up and started talking causing an uncomfortable situation, when he could see there was something severely wrong. He agreed that it would be difficult as a manager to assist someone if the person denies that there is something wrong. He conveyed to Ms van der Vyver and Dr Boon that the applicant was not healthy and rational after the applicant received the letter confirming her dismissal.
33. Mr Jacobs testified as follows under re-examination: The applicant’s situation was unique compared to others and he agreed that the applicant had no family to support her. He also agreed to the fact that the applicant lacked insight into her surroundings whilst she was employed at the District office.
34. Ms Desiree van der Vyver testified as follows under oath in her evidence in chief: She is the Chief Occupational Therapist and Head of Occupational Therapy at George Provincial Hospital with 20 years’ service in the Psychiatric Unit. She had also worked in other departments and shared responsibility with paediatrics and psychiatry. The applicant was one of her patients in the Psychiatry Department. The applicant became her patient when she was discharged from Valkenberg Hospital as an out patient to George Hospital, living in Mossel Bay. Dr Scholtz was the Psychiatrist at that stage at George Hospital. She and Dr Scholtz interviewed the applicant and she recommended that they do a functional work evaluation for the applicant, which was agreed and arranged. They wanted to do a functional work evaluation for the applicant because the Occupational Therapist at Valkenberg in her e-mail to them had indicated she was concerned that the applicant’s insight into the severity of her illness was not sufficient for her to understand that her actions could lead to disciplinary actions. The applicant at that stage herself felt she could do her work and they were concerned about the effect of the illness on her work. They were also so worried about the applicant that she might not understand why they wanted the work evaluation, whereafter they wrote a letter in which they explained to the applicant that the work evaluation was needed to establish the reasons why the respondent was unhappy since they had already got feedback from work that things were not going well. Dr Ori’s medical record of 4 May 2018 from Valkenberg in which Dr Ori had stated that the applicant remained with paranoid delusions and that the diagnosis for the applicant was changed from bipolar mood disorder to schizoaffective disorder indicated to them that all was not well. The personal contact with the applicant during interviews were also sending red flags that they needed to evaluate her more in depth because she had very limited insight that there was any problem in her behaviour at that stage. They also observed negative symptoms displayed by the applicant during the process of interviewing and she explained the meaning of the listed symptoms being blunted affect, slow psychomotor, yalogia, avolition and anheodonia. These negative symptoms were there since she got to know the applicant in May 2018 to around December 2018. After the applicant was re-evaluated on 29 May 2019 she did not recall seeing her again, with her last evaluation being on 29 May 2019. She noted that the applicant was charged and dismissed effective from 9 August 2018. She started treating the applicant round about May 2018 after she was discharged from Valkenberg and declared an out patient. She explained the difference between an in patient and and out patient. With psychiatric patients if they are unwilling to be admitted to a hospital they are admitted under the Mental Health Care Act, which is how most of their in patients are admitted if they do not come voluntarily to be admitted. If someone becomes an out patient the medical team feel that he or she is sufficiently stabilised to go home but still under continuing medical care. Valkenberg is a tertiary hospital and George is a secondary hospital hence one step down in the health hierarchy. She was referred to the applicant’s progressive disciplinary charges of 22 November 2017 and 18 January 2018 which related to failure to carry out a routine instruction without just or reasonable cause and absence from work without a valid reason or permission, as well as the charges which the applicant was dismissed for and the dates of the alleged transgressions, and was asked whether there was any assessment or contact with the applicant in February and June 2018. She responded by pointing out that the dates stated in the charge are also the same dates that the applicant was hospitalised and quite ill because the applicant’s first hospital admission to Mossel Bay was from 20 February 2018 whereafter she was transferred to George Hospital on 2 March 2018 since Mossel Bay is a District Hospital and they felt the applicant needed more intensive care and needed to be under the supervision of a Psychiatrist which they did not have on their staff establishment there. When the team realised she could not stabilise they referred her on 9 March 2018 to Groote Schuur, which was seven days later. She stayed at Valkenberg until 8 May 2018, which is a hospital stay there of almost two months, and was discharged home on 10 May 2018 in the care of her family. Quite a few of the dates mentioned in the charges coincided with the medical teams of three hospitals deciding that she is ill enough to be admitted. The applicant was not fully recovered when she was discharged home on 10 May 2018 since her psychotic symptoms and delusional thoughts were still in the forefront of her treatment until about December 2018. In their letter to the applicant, which was not available at the arbitration, they explained to the applicant that there were two options, with the first that she could go to Groote Schuur’s work evaluation unit but this required transport and accommodation which would be difficult for her, with the second the suggestion that she see a private Occupational Therapist in George under her medical aid. The applicant opted for the latter and consulted with Ms Michelle Jenkins in George. Reference was made to Ms Jenkins’s report of 3 September 2018 based on evaluations performed on 30 August 2018 and 3 September 2018, of which the explanation of the detail and tests performed on the applicant are not repeated here. She pointed out that once an Occupational Therapist has used a battery of tests that it made sense to make use of one or two of the same tests to establish if a patient has improved or not. Ms Jenkins’s finding from the BCAB (Bedside Cognitive Assessment Battery) was that the applicant’s concentration and visual and verbal memory was impaired. Those two components already would have a huge impact on her behaviour and the way she executed anything at work. Ms Jenkins had also observed that the applicant struggled with decision making and judgement because she had paranoid thinking and lack of insight into her medical condition. Part of the Occupational Therapist’s assessment is to get collateral from the workplace and Ms Jenkins contacted the respondent, who gave feedback that the applicant stopped visiting schools due to paranoid thoughts and was a risk to drive because she struggled with attention and sleepiness, which collateral from the workplace confirmed that there were problems. She referred to her own report contained in a letter of 29 May 2019 and explained its content. She had used two tests which Ms Jenkins had used since the others that Ms Jenkins had applied were not available at George as a secondary hospital. Her own observation and with interviewing was that the applicant had better insight now since the applicant’s direct words were when she asked her how the last few months were at work was that she was not OK and was dysfunctional. When she asked the applicant how she felt about continuing with work she said that her children needed her to be functional again but felt that her sense of responsibility towards her family drove her to attend work every day. She did not believe that the applicant was really able to do the work and felt at that stage that the applicant is not able to return to open labour market conditions. She felt it was better for a Psychiatrist to respond to whether there was something that happened in the applicant’s life or work which led to the applicant’s breakdown and served as perpetrating factors since a Psychiatrist can answer the question better as to what leads to mental illness. She referred to Dr B Boon’s report and would concur that stresses in private and work life can aggravate or sustain one’s mental illness. All that she could do was to testify to what Dr Boon wrote in her report in the Part D Statement of Attending Doctor annexed to the applicant’s application for ill-health retirement which Dr Boon signed on 20 June 2019, where Dr Boon wrote at item 3.11: However, the unfair dismissal for behaviour perpetrated whilst ill and the absent income/resolution of her ill-health retirement is placing tremendous strain on her with a high risk of relapse for acute illness, i e return of psychosis. She responded to the question on whether there was any stage before the applicant was charged that there was a request placed to her to supply the respondent with medical documents that firstly definitely during the period that the applicant was under in patient treatment and even the period thereafter she believed that the applicant was not able to make the best decision to her advantage to supply everybody with what they needed due to her lack of insight and the feeling that other people wanted her in hospital and not herself. Secondly, Occupational Therapists can only contact an employer if they get verbal or written permission from the patient, hence she was very specific about requesting permission from the applicant. She obtained permission the previous year from the applicant to contact the respondent hence there was e-mail correspondence between herself and Ms Beukes the applicant’s supervisor. The aim of that correspondence was to try and determine from Ms Beukes what was happening at work and Ms Beukes did clearly state her concerns and that is what motivated her to explain to the applicant that it was in her best interest to get the work evaluation. She could not disclose an Occupational Therapist’s report to an employer without the permission of the patient and she was not sure how Ms Jenkins’s report was disclosed. From the Mossel Bay, George and Valkenberg Hospital reports the applicant did not agree to be admitted and it was involuntarily admission in terms of the Mental Health Act, in which instance the patient does not pay for hospitalisation and treatment. The applicant was not initially misdiagnosed since in psychiatry it commences with a working diagnosis which may change with more exposure. In Dr Boon’s report of 20 June 2019 she had stated that the applicant’s first admission was in 2016 between April and May when the applicant was first diagnosed with bipolar mood disorder and later changed to the diagnosis of schizoaffective disorder. She responded to the question on whether the course of action taken by the respondent to discharge the applicant for misconduct was fair given that the applicant stayed four months in a mental institution, that it was her honest opinion that the respondent should have probably gone the route with the applicant of ill health if they were informed or knew that the applicant was ill, and not the route of dismissal, because there was enough evidence in August 2018 and again in May 2018 by two separate therapists that she was impaired and could not function at work in a very high demanding job.
35. Ms van der Vyver testified as follows under cross-examination: She believed that she could use Ms Jenkins’s findings or recommendations because they were of the same professionality type since she would understand the background and what Ms Jenkins meant in her report. She only used the MOCA and BCAB tests and her clinical observations for her report. She was not familiar with the other assessment tools that Ms Jenkins used because they were not available at George Hospital. She confirmed that the applicant’s score on MOCA had improved. It would however not prove that the applicant was fit to return to work. MOCA gave her a very quick look at the applicant’s cognitive health and how accurate she can work within 25 minutes more or less, whereafter she moved onto the BCAB which is more substantial and on which the applicant scored impaired. She did not see the applicant’s discharge report from Valkenberg but her Psychiatrist Dr Scholtz would have seen it. She use the e-mail that she received from the Occupational Therapist at Valkenberg before she assessed and treated the applicant. Dr Scholtz did inform her about the change in the applicant’s diagnosis. The BCAB more substantial test confirmed that the applicant was unable to work since the job of a Subject Advisor needed high cognitive functioning and a memory which was not impaired. She also explained the illness process which breaks down one’s cognitive ability every time the person became psychotic or depressed and causes the brain to become dysfunctional and the neurotransmitters will not function properly if left untreated. The applicant had some history of treatment and it popped up again in 2018. She was not aware of the applicant’s condition in 2015. Dr Boon must have got that history from Dr Henningh of the George Medi Clinic or Dr Ori from Valkenberg and sometimes the family volunteer the information and the applicant’s son may have told those doctors about the 2015 illness. She responded to the question on how to take the matter further if the applicant still denies she is ill that they have been trained to observe an illness process and understand what schizoaffective and bipolar means. They used their professional training background to remind themselves that even if their patient tells them she has no medical problem they had seen the contrary to it and the previous hospitalisation at Valkenberg which meant that something must be wrong, with the conclusion that there was a lack of insight, hence the applicant was in denial. The reason why it may have been difficult for the respondent to obtain the medical reports for the applicant is that when they write out a medical certificate in psychiatry the doctor will just state a medical condition rather than disclose an anxiety or psychological disorder as there is a general bias against mental illness, or the patient could be ashamed of a diagnosis of mental illness. She confirmed that her report came out on 29 May 2019 and that of Ms Jenkins on 3 September 2018, which was after the applicant was dismissed in August 2018. She responded to the question that the applicant’s transgressions came from November 2017 to February 2018 and that she only assessed the applicant in 2018 as to whether she could make a call from September 2018 to say that the applicant already had those conditions at the time that she could and referred to Dr Boon’s letter dated 19 June 2019 in which Dr Boon tried to summarise the applicant’s medical history. There was no doubt that the applicant had displayed active and acute symptoms from January 2018 which were probably aggravated by stress at work over a period whereby she could not cope any more. There was no information what happened to the applicant in 2014 and 2015 except for one voluntary admission to George MediClinic but three separate teams of medical doctors admitted this patient and she believed that the cognitive decline happened over a period and most probably started already late 2017. The respondent could not ask her but Dr Boon about the applicant’s earlier medical history. Although the applicant had transgressed between November 2017 and February 2018 which was prior to her admission for treatment at Mossel Bay Hospital on 20 February 2018, the applicant could have acted in that manner then due to her current condition since they as medical professionals knew that the nature of a bipolar or schizoaffective disorder followed a certain course. Mental illness does not happen overnight and from one week to another and follows a natural progression. If the arbitration wanted to understand if the applicant was already ill at that stage then they would have to look at the George MediClinic records to see how she presented then for the first time. In the absence of assessments during 2017 it could have been speculated that it could have been anything and that the applicant was not ill at the time but because she was under pressure and it led to something else. But the one thing that the respondent could not deny as an employer is that the applicant had negative symptoms as recorded by one or two medical professionals which she, Ms van der Vyver, started with and which negative symptoms played out at work, such as blunted actions where Ms Beukes alluded to that other workers in the office were struggling to communicate with the applicant, that she walked slowly, etcetera. She would agree that Ms Beukes and Ms Buitendach would not know what the nature of the applicant’s condition was in the absence of any medical report since they are not medically trained and identified the problem without being sure what they were dealing with. Even if there were no assessments done at the time between November 2017 and February 2018 the respondent should have noted the applicant’s sick leave record and realised that something was wrong and help needed to be found such as getting an Occupational Therapist involved. She would not agree that it would be difficult to make a call that the applicant was sick at the time in the absence of an assessment. Dr Ori of Valkenberg was probably the most qualified in that type of hospital to deal with the applicant. There was definitely already something up in 2015 therefore she believed that the applicant had a long standing process happening when she sought medical attention in 2015 and she probably stopped because she felt better but still not good enough for her to function in the type of post that she occupied. Because there was no absenteeism it did not mean the person was actually fine. The Occupational Therapist at Valkenberg could see the results of something that had been coming for quite a while which is why she was worried about the applicant and would not have contacted them at George Hospital. Psychiatric medicine took a while to work and it can be difficult to find the right pharmacology for an individual.
36. Ms van der Vyver testified as follows under re-examination: She was referred again to Ms Jenkins’s report in which it was stated that the respondent confirmed that the applicant’s vocational functioning started declining at the beginning of 2017 and asked what her impression of that was, to which she responded that the respondent did not notice the decline in 2016 since it was not stated. The period from 2014 when the applicant commenced service and 2015 and 2016 appeared to have been fine since the respondent did not state that there was a problem right from the start. All that she could deduct from that is that an illness process probably took hold of the applicant sometime in 2017 and limited her functioning at work. The condition had definitely existed before the applicant’s dismissal from at least January 2018 as stated by Dr Boon in her summary. At the time of writing their reports the applicant was not capable to work in the open labour market and she shared Dr Boon’s opinion that the respondent should have gone the route of ill health and not termination of employment and that the wrong form was probably completed by Dr Boon, so there may have been miscommunication on exactly what form the respondent wanted. It was not misconduct since the applicant was ill and could not function at work.
37. Dr Rasmita Ori, Senior Clinician at General Psychiatry of Valkenberg Hospital, testified as follows under oath in her evidence in chief Via WhatsApp video and voice calls and telephone from Cape Town: She was referred to the report that she issued for the applicant from Valkenberg Hospital. She confirmed the primary discharge diagnosis for the applicant as shizoaffective disorder, unspecified, that the applicant was admitted on 9 March 2018 and discharged on 4 May 2018, although the applicant was not discharged per se but was transferred from Valkenberg back to George Hospital on 4 May 2018 under the Mental Health Care Act. The applicant was still under involuntary admission to Valkenberg Hospital and it was up to George Hospital to discharge her. She had stated in her report that the applicant was previously known to Dr Henningh the private Psychiatrist who treated the applicant in 2016 at the George Neuro Clinic. Dr Henningh had diagnosed the applicant with bipolar mood disorder at the time. The applicant was subsequently referred to George Hospital with a progressive history of deterioration claiming that Ms Beukes was stealing from her and that the telephones at work were being hacked and tapped. The patient had initially herself admitted that she was treated by Dr Henningh at the Neuro Clinic and Dr Henningh responded in writing to confirm this. Her team also investigated and confirmed this. Dr Henningh had provided the first diagnosis of bipolar mood disorder and the second differential diagnosis of schizoaffective disorder, which was their final diagnosis at Valkenberg. They do not rely on what was previously diagnosed when a patient is admitted but do their own investigation into the applicant’s mental state in order to arrive at a diagnosis. They will consider other parties such as previous doctors, other health care practitioners and also the family to obtain the patient’s history. The history comes from numerous sources, the first from the applicant’s son Siseko Alexander Mapisa, the second from the applicant’s supervisor Ms Beukes and the third from George Hospital which had recorded the same information as they had. She described what the applicant looked like when she arrived from George Hospital and that she was dishevelled and her self care was impaired. The applicant’s engagement with hospital staff was hostile and irritable since she did not believe that she should be in hospital, etcetera. She explained what the medical term “blunt” meant. Part of the medical examination is the assessment of one’s thoughts, how they are put together and whether they are coherent or not. The contents of thoughts are regarded as paranoid or persecuting delusions. The applicant did not believe that she could use a computer and could not continue working at her job since the computer was hacked and a network of people were conspiring against her and had hacked into her computer and telephone, which they since found that this information was delusional. The applicant had extended this delusional thinking to that Ms Beukes had taken photographs of her in her house while naked and distributed these to other colleagues and employees and that Ms Beukes had hacked into this equipment, which was highly implausible and then termed delusional. She also explained the other terminology used such as “insight”. The applicant was difficult to manage in the ward as she refused to have blood drawn, was hostile to have her brain scanned and refused to participate in the therapeutic programme. It was only at the end of the applicant’s time with them at 4 May 2018 that there were improvements that occurred which allowed her in clinical judgement to transfer the applicant to George Hospital. The applicant had appealed against her involuntary admission in terms of the Mental Health Care Act which allows for the right of appeal if the admission was an unlawful process. The applicant’s appeal went to the Mental Health Review Board and the applicant was given the opportunity to have legal representation. The applicant showed poor insight and believed that she could only represent herself. The Board’s finding was that the applicant was still not well and that there were grounds for involuntary admission and recommended that the applicant’s financial status and employment should be protected. It was not within her ambit to address the applicant’s employment issues, but for the Occupational Therapist based on an independent assessment made between her and the employer. She explained that schizoaffective disorder is primarily a psychotic disorder with mood symptoms, whereas bipolar mood disorder does not include psychotic symptoms. The schizo part relates to impaired reality testing and in addition psychosis includes disorganised behaviour, disorganised thought and perceptual disturbances. The affective part is the presence of mood features which co-occur with mood symptoms. There can be a schizoaffective disorder bipolar and depressive subtype. Bi means two, polar means opposite. According to Dr Henningh’s records the mood features were more prominent than psychotic symptoms for the applicant at the time. When the applicant presented at Valkenberg the psychotic symptoms were at the forefront, so the ultimate diagnosis was psychosis primary with mood secondary. The illness was of a progressive nature and did not change. A psychiatric diagnosis may evolve as the illness evolves. She was referred to the charges that the applicant were dismissed for and she confirmed that the dates referred to in the charges were before the applicant was admitted for treatment. She responded as follows to the question on whether there was a link between the conduct that the applicant was charged for and the diagnosis at Valkenberg: The applicant was first admitted to Mossel Bay Hospital on 22 February 2018 and the reason stated by the applicant’s son was that he felt his mother was ill, that she felt everyone was against her and was refusing medication. This was 6 days after the last date referred to in the charges. If someone refuses to do something it does not mean that it’s due to mental illness. It is possible that the propensity of not wanting to cooperate could be driven by the symptoms of the applicant’s illness. Although the reason for the refusal was not stated on the charge sheet, the son’s testimony that his mother was unwell over this period coincides with the time the charges were made between 6 and 16 February 2018 when the applicant said everybody were against her and she would not use her cell and computer as she believed they were hacked and would not attend meetings since Ms Beukes had taken photographs of her and she felt people were laughing behind her back and as a result she stated she no longer wanted to attend meetings and that there was a conspiracy against her. These symptoms were also noted in 2016 when the patient saw Dr Henningh at George Neuro Clinic where Dr Henningh had recorded that the applicant had difficulty driving the government vehicle and needed to apply brake fluid onto her hands before she drove the vehicle in 2016. In 2018 when she was seen at Valkenberg the applicant felt she was followed and there was a conspiracy against her and she would not get into the government vehicle, with impaired judgement. Under the circumstances it is possible that the misconduct was due to mental illness. She responded as follows to the respondent’s version which would be put to her that they were waiting for medical reports and treating institutions which the specialists and treating doctors could not produce and in the absence of medical evidence the respondent had no other option but to charge the applicant for misconduct: The hospital had firstly direct contact with the respondent via their Occupational Therapist throughout the admission so the respondent was made aware by the hospital and team that the applicant was admitted to hospital as an involuntary patient. Whilst they did not divulge the diagnosis the respondent was aware that the applicant was hospitalised over a 2 month period via e-mail correspondence. When the collateral was received from Ms Beukes she out of her own stated that the applicant may have schizophrenia, which indicated the respondent’s awareness that maybe something was not well. When she left Valkenberg the applicant was provided with a sick note for the respondent which included the dates admitted and transferred and was also given a copy of the discharge summary to give to the respondent. It was difficult to link the latecoming in charge 5 with the applicant’s medical condition because it merely stated that she was late for work which could not be solely attributed to her mental condition. In itself latecoming and not reporting to her supervisor cannot be linked to any mental disorder but the applicant had felt that her supervisor was conspiring against her so in that light it can be assumed why she did not report to the supervisor and it is possible based on delusional thinking that she did not want to notify the supervisor of her whereabouts. With reference to the last charge of absenting herself from work without the authorisation of her supervisor she was a bit confused since in her documented notes on 15 March 2018 at 14h30 to 15h10 the afternoon a documented telephone contact with Ms Beukes was made via the Occupational Therapist in her team who had a conversation with Ms Beukes looking for what the applicant did at work and notifying her that the applicant was in hospital and will probably remain there for a while. In that conversation Ms Beukes agreed to ongoing communication and contact with the respondent’s Human Resources Department and on 2 May 2018 a follow up e-mail was sent to Ms Beukes from their Occupational Therapist to inform that they had not received the documents required for the applicant from the HR Department, which had not been received when the applicant was transferred to George Hospital. The respondent was aware during the period from 15 March to 25 May 2018 that the applicant was in hospital from 9 March 2018 until 4 May 2018, which is why she was confused about this charge. She respondent to the statement that they felt that Valkenberg Hospital had derelicted their duty to report to other stakeholders about the applicant’s whereabouts and that there were no reports to clarify her whereabouts, which is why the respondent decided to go ahead and charge the applicant, that it was erroneous of the respondent to assume information as any request must have the permission of the patient, or requested on the letterhead of the respondent with the consent of the applicant, of which the respondent was informed, therefore she could not comment on dereliction of duty. She was referred to the notices of the applicant’s two prior progressive disciplinary meetings of 22 November 2017 and 18 January 2018 and whether they would trigger the applicant’s condition. She could not state with confidence that the applicant became ill because of these notices and that they could have been stressors to worsen her existing mental state.
38. Dr Ori testified as follows under cross-examination: She saw the applicant when she was admitted, at the Review Board hearing and when she was transferred to George Hospital. She personally assessed the applicant at intervals during the applicant’s stay there since she managed a team of up to ten members, which included Senior Doctors who also treated the applicant. Ms Sity the Occupational Therapist was part of the team. She responded to the question on whether the applicant was unfit for duty from November 2017 until February 2018 that she saw the applicant for the first time at Valkenberg and could not make any assessment on mental illness or ability to carry out her job description prior to that. She responded to the statement that there was no medical evidence prior to their assessment and that their and the other Specialists’ assessments of the applicant were after the fact and the transgression, that the applicant was at George Neuro Clinic in 2016 under the the care of Dr Henningh who had already provided diagnoses of the applicant’s condition at the time, on which only Dr Henningh and Dr Swanepoel could comment on the applicant’s condition prior to that. As to whether it was unfair for the respondent to charge the applicant in the absence of medical certificates and reports prior to her transgressions, whomever employed the applicant must have believed that she could do the job, but it was reasonable to assume that the applicant was unwell based on the severity of symptoms, although one could not tell if the transgressions happened solely due to mental illness. The applicant was mentally unwell during for the period from 6 to 19 February 2018 as reported by her son and the collateral information from the family. One did not get certified on 21 February 2018 if you were completely well on 19 February 2018. The duration of the applicant being unwell could at least have been from February 2018 based on collateral evidence. Despite the e-mail communications with Ms Beukes in March 2018 no documents were sent to the Hospital from the respondent for the applicant such as the leave form. The annexure for completion was only sent by Ms Beukes on 3 May 2018 whilst the applicant was transferred to George Hospital on 4 May 2018 when it was the responsibility of the receiving Doctor to complete Annexure B, which is why it was completed by Dr Boon since it it made no legal sense for Valkenberg to complete the form since the applicant was already transferred to George Hospital to continue with her care. In terms of the legal process an employer has no right to confidential information from her, but it was the patient’s responsibility to hand the documents to the employer, with every patient having the responsibility to inform the employer of hospitalisation. The information will ony be provided by the patient agreeing to apply for temporary incapacity leave. She referred to the letter from Ms Sity of 11 April 2018 which was issued to the respondent for the applicant confirming the applicant’s admission at Valkenberg. If the respondent was not satisfied with that letter and that it was not a medical certificate the respondent could have requested any other documents as stated in the letter. Ms Sity made contact with Ms Beukes on 2 May 2018 and Ms Beukes only sent the information two days before the applicant was transferred to George and it was for Dr Boon to get consent from the patient to complete the documents. Sick notes could have been processed for the applicant since they had informed the respondent that the applicant was in hospital, and had provided the applicant with a sick note and medical report. Any employee can report sick leave without disclosing a diagnosis. It was unreasonable to expect a psychotic patient to inform the employer of sick leave, which is why they informed the respondent. The respondent was aware that the applicant was in hospital for that period when she could not contact the respondent herself.
39. There was no re-examination of this witness.
CLOSING ARGUMENT
40. Written closing arguments were submitted by both parties to the ELRC and forwarded to the Panelist by the agreed due dates. These closing arguments are not repeated here for the sake of brevity, but have been taken into account in arriving at the award.
ANALYSIS OF EVIDENCE AND ARGUMENT
41. I am required to determine, on the balance of probabilities and in the circumstances of this case, whether the dismissal of the applicant, Ms N Mapisa, by the respondent, the Department of Education - Western Cape, for alleged misconduct was fair on procedural and subantive grounds and to grant the appropriate relief if unfairness is found.
42. In arriving at my findings I am firstly mindful of the charges which were brought against the applicant, of which the applicant was found guilty of in her absence at the disciplinary hearing rescheduled from 21 June 2018 to 7 August 2018, which are repeated here for ease of reference:
CHARGE 1
It is alleged that you are guilty of misconduct in terms of section 18(1)(i) of the Employment of Educators Act, 76 of 1998 (hereinafter referred to as the Act), in that on or about 2 February 2018 you failed to carry out a lawful order or routine instruction without just or reasonable cause, by refusing to attend a component meeting at the Eden & Central Karoo Education District Office.
CHARGE 2
It is alleged that you are guilty of misconduct in terms of section 18(1)(i) of the Act, in that on or about 06 February 2018 you failed to carry out a lawful order or routine instruction without just or reasonable cause, by refusing to meet with Mrs M Beukes, Head of Curriculum employed at the Eden & Central Karoo Education District Office.
CHARGE 3
It is alleged that you are guilty of misconduct in terms of section 18(1)(i) of the Act, in that you failed to carry out a lawful order or routine instruction without just or reasonable cause, by refusing to attend grade 12 standard settings meeting at the Eden & Central Karoo Education District Office on the following dates:
a) 05 February 2018; and/or
b) 06 February 2018; and/or
c) 07 February 2018; and/or
d) 08 February 2018; and/or
e) 12 February 2018; and/or
f) 13 February 2018.
CHARGE 4
It is alleged that you are guilty of misconduct in terms of section 18 (1)(i) of the Act, in that you failed to carry out a lawful order or routine instruction without just or reasonable cause, by failing to submit weekly plans to Mrs Beukes, Head of Curriculum at the Eden & Central Karoo District Office for the period 02 February 2018 until 16 February 2018.
CHARGE 5
It is alleged that you are guilty of misconduct in terms of section 18(1)(j) of the Act, in that you absented yourself from Eden & Central Karoo Education District Office, by reporting late for duty on the following dates, without notifying your supervisor:
Date Time
05 February 2018 08h00
06 February 2018 08h00
07 February 2018 08h20
08 February 2018 08h15
09 February 2018 08h30
12 February 2018 08h35
13 February 2018 09h00
14 February 2018 08h15
15 February 2018 08h25
16 February 2018 07h50
28 May 2018 07h50
CHARGE 6
It is alleged that you are guilty of misconduct in terms of section 18(1)(j) of the Act, in that you absented yourself from the Eden & Central Karoo Education District, without authorization of your supervisor, on the following days:
a) 19-20 February 2018; and/or
b) 02 March 2018; and/or
c) 05-09 March 2018; and/or
d) 12 -16 March 2018; and/or
e) 19-20 March 2018; and/or
f) 22-23 March 2018; and/or
g) 26-29 March 2018; and/or
h) 03-06 April 2018; and/or
i) 09-13 April 2018; and/or
j) 16-20 April 2018; and/or
k) 23-26 April 2018; and/or
l) 30 April 2018; and/or
m) 02-04 May 2018; and/or
n) 07-11 May 2018; and/or
o) 14-18 May 2018; and/or
p) 21-25 May 2018.
43. In arriving at my findings and the award I am also mindful of the prescripts of the relevant legislation, being Sections 18(1)(i) and (j) of the Employment of Educators Act 76 of 1998 as amended (the EEA) under Chapter 5 Incapacity and Misconduct relating to misconduct, as well as the procedures to be followed in terms of Sections 18(2) and the range of sanctions that can be imposed in terms of Section 18(3) if a finding is made that an Educator had committed the misconduct contemplated in Section 18(1):
18. (1) Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she –
(i) fails to carry out a lawful order or routine instruction without just or reasonable cause;
(j) absents himself or herself from work without a valid reason or permission;
18. (2) If it is alleged that an educator committed misconduct as contemplated in subsection (1), the employer must institute disciplinary proceedings in accordance with the disciplinary code and procedures contained in Schedule 2.
18. (3) If, after having followed the procedures contemplated in subsection (2), a finding is made that the educator committed misconduct as contemplated in subsection (1), the employer may, in accordance with the disciplinary code and procedures contained in Schedule 2, impose a sanction of –
(a) counselling;
(b) a verbal warning;
(c) a written warning;
(d) a final written warning;
(e) a fine not exceeding one months’s salary;
(f) suspension without pay for a period not exceeding three months;
(g) demotion;
(h) a combination of the sanctions referred to in paragraphs (1) to (f); or
(i) dismissal, if the nature or extent of the misconduct warrants dismissal.
44. Of relevance too with respect to the charge of unauthorised absence brought against the applicant is Section 14 of the EEA relating to that Educators appointed in a permanent capacity can be deemed to be discharged from service for misconduct if, as at subsection (1) paragraph (a), the Educator is absent from work for a period exceeding 14 consecutive days without permission of the employer, which discharge will take effect from the day following immediately after the last day on which the educator was present at work. Subsection (2) is also relevant in the circumstances of this case, which is provided in full hereunder:
(2) If an educator who is deemed to have been discharged under paragraph (a) or (b) of subsection (1) at any time reports for duty, the employer may, on good cause shown and notwithstanding anything to the contrary contained in this Act, approve the re-instatement of the educator in the educator’s former post on such conditions relating to the period of the educator’s absence from duty or otherwise as the employer may determine.
45. In the context of this matter I must also consider the prescripts of Sections 11 and 12 of the EEA relating to the discharge of Educators and discharge on account of ill health respectively, of which extracts of the relevant paragraphs read as follows:
11 (1) The employer may, having due regard to the applicable provisions of the Labour Relations Act, discharge an educator from service-
(a) on account of continuous ill-health;
(d) on account of unfitness for the duties attached to the educator’s post or incapacity to carry out those duties efficiently;
(e) on account of misconduct;
12 An educator may be discharged on account of ill-health in the circumstances referred to in Schedule 1.
46. Schedule 1 of the EEA at item 3 Incapacity Code and Procedures in Respect of Ill Health or Injury outlines the procedures to be followed in respect of ill heath or injury, which would have applied if the respondent was of the view that the applicant was not performing in accordance with her post requirements as a result of poor health, had initiated an investigation into the extent of her ill health and had requested the medical examinations and medical reports to establish whether the nature of her ill health was of a temporary or permanent nature and had considered the alternatives to termination of service in terms of subitem 6 if the ill health was of a permanent nature, which it was common cause was not the route taken by the respondent in the applicant’s case but instead that of misconduct in terms of Section 18 of the EEA.
47. Finally, the best interests of the child remain paramount as held by the Constitutional Court in Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BCLR 761 (CC) that Section 28(2) of the Constitution of the Republic of South Africa imposes an obligation on all those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions. This consequently also binds Arbitrators in a forum such as this to give consideration to the effect their decisions will have on children’s lives, and learners collectively, when they decide on the fairness or otherwise of the dismissal of an Educator and even if unfairness is found, that an Educator should not be re-instated or re-employed if this will have a detrimental effect on the well-being and safety of learners.
48. I also refer again to the facts which were established and agreed as being in dispute at the commencement of the arbitration, being as follows:
• Whether the applicant was booked off sick prior to February 2018 from 2016 when the bipolar type disorder was already diagnosed.
• Whether the applicant had informed the respondent of her other absences during the period February 2018 to May 2018.
• What the reason was why the applicant was absent at the rescheduled hearing of 7 August 2018.
• Whether the respondent was required to inform NAPTOSA of the disciplinary action instituted against the applicant.
• Whether the respondent had followed the guidelines in Schedule 8 items 10 to 11 of the Code of Good Practice: Dismissal of the LRA in dismissing the applicant for ill health incapacity as opposed to misconduct.
• Whether the respondent had attempted to obtain medical reports from the practitioners who had treated the applicant but was unsuccessful in achieving this.
• Whether the medical evidence which was supplied to the respondent was only produced after the applicant’s dismissal.
• Whether the applicant’s dismissal was fair based on both procedural and substantive grounds.
49. Based on the facts established as common cause and the evidence presented during the arbitration clarity was obtained regarding most of the disputed issues, with the main disputed facts remaining as to whether the respondent was entitled to fairly institute disciplinary action against the applicant for alleged misconduct in the absence of the medical evidence that they requested from the specialists and institutions which had treated the applicant, and whether the applicant was at the time of the alleged transgressions already suffering from the medical condition of which the official diagnoses were only made available after her dismissal, and that this condition would have attributed to her conduct at the time when the transgressions were committed, and which then could be regarded as extenuating or mitigating factors which had contributed to or caused her misconduct. It should be pointed that I am not empowered in these proceedings to change the nature of the dismissal from that of alleged misconduct to that of incapacity due to ill health, but to establish whether a fair dismissal had taken place for alleged misconduct on both procedural and substantive grounds.
50. It must be stated that all parties, including myself, as laypersons, had observed that the applicant did not appear to be functioning as one would expect a normal person to function during the duration of the arbitration and that something was wrong, with her displaying some of the symptoms that the expert witnesses had testified to, and that it was apparent that the applicant still at the time of the arbitration had an underlying and serious medical condition. In the circumstances the applicant was not requested to testify in person by NAPTOSA in these proceedings.
The respondent’s evidence
51. Ms C Buitendach the applicant’s direct supervisor and line manager as FET (Further Education and Training) Coordinator at the Eden and Central Karoo Education District Office (ECKED) and Ms M Beukes, the Head Curriculum Support for ECKED the applicant’s next level of management at ECKED where she was employed as History Subject Advisor, testified to the problems that they had experienced with the applicant in terms of her attitude and conduct since November 2017 until February 2018, the periods during which the applicant had been progressively and formally disciplined prior to her disciplinary hearing and when the sanction of dismissal was handed down on 9 August 2018, which dismissal was upheld on appeal by the Provincial Member of the Executive Council (MEC) for Education on 26 November 2018 after an appeal was lodged by NAPTOSA on behalf of the applicant on 27 September 2018. Ms Beukes also testified to her concerns surrounding the applicant’s situation and the efforts that were made by the respondent to locate the applicant and to obtain the medical reports from the various institutions who treated the applicant to substantiate her medical condition and the necessary documentation to support the applicant’s absence from work on medical grounds, in particular for the period when when she was hospitalised at Valkenberg Hospital in Cape Town.
The applicant’s evidence
52. It was noted that the applicant did not testify in person since it was apparent to all present in the course of the arbitration that she was not functioning in a normal capacity, as already stated.
The expert medical witnesses Ms D van der Vyver as Chief Occupational Therapist at George Provincial Hospital and Dr R Ori as Senior Clinician at General Psychiatry of Valkenberg Hospital in Cape Town, who had both treated the applicant over different periods, being for Ms van der Vyver from May 2018 after the applicant was transferred from Valkenberg to George Hospital as an out patient to 29 May 2018 when she conducted the last evaluation for the applicant, and for Dr Ori from 9 March 2018 when the applicant was admitted to Valkenberg Hospital until her discharge/transfer to George Hospital on 4 May 2018, confirmed that the applicant had suffered from a medical condition, first diagnosed in 2016 as bipolar mood disorder by Dr Henningh of the George Neuro Clinc and later as schizoaffective disorder bipolar type. Their evidence was also that, based on their own assessments of the applicant and the collateral evidence that they had acquired of the applicant’s medical history, that this mental illness was of a longer standing nature and could have contributed to the erratic and unreasonable behaviour which the applicant had displayed from around end 2017 up to February 2018, and beyond, since mental illness followed a progressive course and did not present itself overnight. They both confirmed that they were unable to provide confidential information of the applicant’s official diagnoses to the respondent without the applicant’s consent, and it was only when this was obtained that they could issue their respective reports dated 29 May 2019 for Ms van der Vyver and 4 May 2018 for Dr Ori. Although the two other health professionals who assessed and treated the applicant did not testify at the arbitration, Ms van der Vyver confirmed the reports and correspondence of Ms M Jenkins the private Occupational Therapist dated 3 September 2018 and that of Dr B Boon the applicant’s treating Psychiatrist at George Hospital of 20 June 2019 in the Part D statement by the attending doctor for the applicant’s ill-health early retirement application of 13 June 2019, as well as Dr Boon’s letter to the respondent of 19 June 2019. Their opinion, in short, was that the respondent had sufficient information at hand during the period which the respondent alleged the applicant had transgressed and prior to obtaining the official medical diagnoses and reports, to realise that there was something seriously wrong with the applicant and that they should not have pursued the misconduct route with the applicant.
53. Mr Jacobs, presently Head of SLES (Specialised Learner and and Education Support) at ECKED, who was also previously as registered as an Educational Psychologist with the respondent and served as NAPTOSA Shop Steward in the past, in his testimony in essence confirmed what Ms Beukes had testified to regarding how the applicant’s behavior had presented itself in the workplace and had deteriorated over a period of time, and was sympathetic to Ms Beukes’s efforts to assist the applicant and to obtain the documentation required by the respondent in order to avoid disciplinary action being taken against the applicant and for the applicant to be discharged due to non-compliance in terms of Section 14 of the EEA. He was also of the opinion that the respondent should not have followed the misconduct but rather the ill health discharge route as provided for in the EEA.
FINDING
54. I have considered all the evidence and argument, but because section 138(7) of the LRA requires brief reasons, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute. The following is accordingly found, on the balance of probabilities and in the circumstances of this case:
55. The charges which were brought against the applicant in the disciplinary hearing notice of 13 June 2018 and their findings will be dealt with separately, as follows:
56. With respect to the first charge of the applicant refusing to attend a component meeting at ECKED on 2 February 2018, it was not disputed that the applicant did not attend that meeting.
57. With respect to the second charge of the applicant refusing to meet with Ms M Beukes on 6 February 2018, it was also not disputed that the applicant refused to meet with Ms Beukes on that date.
58. With respect to the third charge of the applicant refusing to attend grade 12 standard settings meetings during the period from 5 to 13 February 2018, it was also not disputed that the applicant refused to attend those meetings.
59. Similarly, with respect to the fourth charge, it was not disputed that the applicant failed to submit weekly plans to Ms Beukes for the period 2 to 16 February 2018.
60. With respect to the fifth charge of reporting late for the duty for the period from 5 to 16 February 2018 and on 28 May 2018 without notifying her supervisor, it was not disputed that the applicant reported late for duty without notifying her supervisor.
61. Finally, with respect to the sixth charge of the applicant absenting herself from duty for the periods identified in that charge without the authorisation of her supervisor, it was also not disputed that the applicant did not in person notify her supervisor of her absences on those dates and did not obtain the required authorisation for these absences.
62. On the face of it the applicant would therefore be guilty of all the charges brought against her pertaining to insubordination and unauthorised latecoming and absenteeism, but the reasons for such conduct and the mitigating circumstances highlighted in the evidence of the medical professionals who testified at the arbitration, as well as the subsequent medical reports submitted after the sanction of dismissal was handed down on 9 August 2018, put a different complexion on the underlying causes for the conduct displayed by the applicant.
63. The evidence supported that Ms Beukes was under pressure to and genuinely tried to assist the applicant in complying with the respondent’s requirements, in particular to obtain the leave application forms and medical reports with relevant diagnoses from the institutions who treated the applicant, in order to prevent disciplinary action being taken against her, as well as the serious consequence that the applicant’s services could be summarily terminated under the deemed provisions of Section 14 of the EEA.
64. Both Ms van Eeden and Dr Ori had testified that the applicant was not in any mental condition to comply with the respondent’s requirements as would be expected from a normal employee who was not suffering from mental impairment and that the respondent, at least through Ms Beukes, was aware that the applicant was admitted at Valkenberg Hospital during March 2018 when their Occupational Therapist Ms Sity contacted the respondent for the collateral work information. The applicant’s whereabouts was therefore known by the respondent, although the documentation required in terms of the respondent’s policies was still lacking at that stage. The fact that the applicant’s admission for treatment was involuntary and that she was hospitalised for several months at Valkenberg Hospital must have been an indication to the respondent that there was something seriously wrong with the applicant at that time and before that too, as supported by the evidence of Ms van Eeden and Dr Ori that mental illness did not happen overnight but was a progressive process for the more severe and obvious symptoms to be displayed. The respondent did not dispute the testimony that the applicant was admitted to George Neuro Clinic in 2016 and that the respondent through Ms Beukes and Mr Jacobs was aware that the applicant was already undergoing psychiatric treatment at that stage. The respondent’s witnesses’ own evidence supported that they observed that there was something wrong with the applicant’s conduct and that it had deteriorated over a period of time. According to Dr Ori the delusions that the applicant experienced would have accounted for her persistent insubordination and refusal to cooperate with and communicate with Ms Beukes and her superiors. The applicant’s refusal to attend her disciplinary hearings and denial that there was something wrong with her should furthermore have been a red flag to the respondent that something was seriously the matter with the applicant and that her conduct may not be that of normal misconduct and wilful defiance on her part, but had an underlying deeper cause.
65. It was accepted that the institutions could not provide the respondent with the confidential medical information until the application for ill- health early retirement was instituted by the respondent during June 2019 and the applicant’s consent was obtained, and that in the absence of this information the respondent then proceeded to charge the applicant for misconduct as opposed to ill health. Section 14 of the EEA furthermore makes provision that an Educator appointed in a permanent capacity would be deemed to be discharged for being absent from work for a period exceeding 14 consecutive days without the permission of the employer and that this would also be grounds for discharging the applicant from service on account of misconduct. However, it must have been apparent at the time, even if the confidential medical reports were not yet forthcoming, that the applicant was incapable of obtaining this permission for her absence herself from the respondent, which is why Valkenberg Hospital notified the respondent that the applicant was admitted for psychiatric treatment. Mental illness does not present the same as a physical illness, for which a more flexible and tolerant approach would be expected.
66. Therefore, taking the foregoing and the probabilities into consideration, I find that although the applicant may have been guilty of the charges as articulated in the notice of the disciplinary hearing, there were persuasive mitigating circumstances that would have warranted a lesser sanction than dismissal or for another course of action to be pursued by the respondent to deal with the applicant’s conduct and condition, in particular after the applicant had taken the sanction of dismissal on appeal to the MEC.
67. It is noted that the admitted appeal documents submitted by NAPTOSA on behalf of the applicant on 27 September 2018 to the MEC included the Occupational Therapist’s report of Ms M Jenkins of 3 September 2018, a report dated 16 August 2018 from Dr Boon the Psychiatrist at George Hospital which reported provided the applicant’s medical history since 2015, and medical certificates from George Hospital dated 25 May 2018 and 3 July 2018. Although this information may not have been available at the time that the applicant’s disciplinary process was instituted and the disciplinary hearing was held in her absence on 7 August 2018, this information was placed before the MEC at the appeal stage. In their appeal NAPTOSA had requested that the outcome of the charges of misconduct be replaced with an ill health incapacity enquiry and the MEC, being the Minister of Education Western Cape, in her rejection of the appeal, had responded that she had noted that the applicant had never made reference to ill health or injury in her engagements with the respondent and that the ill health enquiry is a distinctly different approach to a misconduct procedure.
68. In my view there were however sufficient mitigating circumstances available at the time of the appeal that an ill health situation applied instead of misconduct and that the MEC would not have been remiss to set aside the sanction of dismissal or impose a lesser sanction for the dismissal related to misconduct, which could have opened the way for the ill health procedure in terms of Shedule 1 of the EEA to be instituted. In the circumstances I find the applicant’s dismissal unfair on substantive grounds.
69. Procedural unfairness was also alleged. The evidence supported that the respondent had applied a process of progressive discipline and had afforded all the rights to the applicant for representation and preparation for the disciplinary hearing on 21 June 2018, which was rescheduled to 7 August 2018 to accommodate the applicant, but was still not attended by her and consequently led to her dismissal when it was eventually heard in her absence. The view is supported that the respondent cannot be held responsible if an accused employee refuses to participate in disciplinary proceedings and chooses not to approach a trade union or fellow employee for assistance in the process, whatever the underlying reasons may be. The respondent also had no obligation to consult with the union(s) of which the applicant was a member at the time about the disciplinary action instituted against her, since this was not a procedural requirement in this case. I accordingly find that the applicant’s dismissal was fair on procedural grounds.
70. The applicant party had sought the relief of retrospective re-instatement if unfairness is found. Clarity was sought as to whether re-instatement or re-employment would be possible if the evidence was that the applicant was unfit to return to duty. The applicant party explained that they had requested retrospective re-instatement for the purpose of applying for ill health early retirement or an ill health discharge, but not for the applicant to resume normal duties. It was common cause that an ill-health early retirement application was instituted by the respondent and the application and supporting medical reports were already completed in June 2019. The respondent’s representative had explained that the application could not be processed since there was no longer an employment relationship between the respondent and the applicant and that this application was made after the applicant was dismissed and the sanction of dismissal was upheld by the MEC. The implication is therefore that the applicant would have to be re-instated so that an ill health discharge in terms of item 3 of Schedule 1 of the EEA could be instituted. In these circumstances re-instatement will be granted.
71. The practical effect and implementation of such a re-instatement should however require careful consideration, with the respondent having to apply its discretion as to the nature of the applicant’s re-instatement and on whether the applicant will be fit to resume normal duties, in the interest of the child and learners collectively.
72. Retrospective compensation or back pay was also requested. It was noted that from the applicant’s pay advice submitted by the respondent that she was was paid up to 31 August 2018. The applicant party had however confirmed that the applicant was paid on 15 November 2018 for the month of November 2018, when the dismissal was upheld on 26 November 2018 by the MEC.
73. It was submitted that the applicant and her family had suffered severe financial hardship since her dismissal, especially since she from a medical perspective was not regarded fit to perform and compete in the open labour market. Considering the challenges that both parties faced and the applicant’s lack of cooperation at the time due to her intervening medical condition, including the delay in obtaining the medical evidence and reports requested by the respondent, I am reluctant to grant retrospective compensation or back pay for the full period since the applicant’s date of dismissal until the date of her tendering her services to the respondent in terms of this arbitration award, which is almost a year, but will consider back pay of six months’ basic salary at R33629,50 per month totaling R201777,00 as just and equitable in the circumstances of this case to alleviate the hardship suffered by the applicant.
AWARD
74. The dismissal of the applicant, Ms N Mapisa, by the respondent, the Department of Education- Western Cape, on 26 November 2018 for alleged misconduct is found to be unfair on substantive grounds but fair on procedural grounds.
75. The respondent is ordered to re-instate the applicant effective from 27 November 2018 into its employ on the same terms and conditions of employment that governed the employment relationship immediately prior to her dismissal, or any other terms and conditions that are no less favourable.
76. The respondent is ordered to pay the applicant back pay of six months’ basic salary as earned at the time of her dismissal of R33629,50 per month totaling R201777,00, less statutory deductions, into her bank account by not later than 15 December 2019.
77. The applicant is ordered to tender her services to the respondent on 1 December 2019, unless required not to do so by the respondent, for the purpose of ill health incapacity procedures to be instituted for her in terms of Schedule 1 of the EEA.
Panelist: A C E Reynolds (Ms)
Province: Western Cape
Applicant: NAPTOSA obo N Mapisa
Respondent: Department of Education Western Cape
Issue: Unfair Dismissal - Misconduct
Venue: Department of Education – Western Cape in George
Award Date: 27 November 2020
Arbitrator: A C E Reynolds
Panelist: A C E Reynolds
Case Number:PSES 781-18/19WC
Date of Award : 27 November 2019
In the ARBITRATION between:
NAPTOSA obo N Mapisa
(Union/Applicant)
and
Department of Education – Western Cape
(Respondent)
Union/Applicant’s representative : Mr X Zigebe (NAPTOSA)
Union/Applicant’s address : 6 Park Road
Rondebosch
CAPE TOWN
7700
Union/Applicant’s Telephone No’s : 0607916744 / 0719721208 / (021) 6868521
Union/Applicant’s Fax No’s : (021) 6892998
Respondent’s representative : Mr C Vorster
Respondent’s address : Private Bag X9114
CAPE TOWN
8000
Respondent’s Telephone No’s : (021) 4679223
Respondent’s Fax No’s : (021) 4258612/0866626022
DETAILS OF HEARING AND REPRESENTATION
1. The matter was referred for arbitration to the Education Labour Relations Council (ELRC) for a dispute relating to an alleged unfair dismissal for misconduct (alleged absenteeism and insubordination) referred in terms of section 191(5)(a)(iii) of the Labour Relations Act 66 of 1995 as amended (the LRA) and was completed over seven sittings on 2 May 2019, 19 June 2019, 8 August 2019, 11 September 2019, 12 September 2019, 15 October 2019 and 16 October 2019 at the premises of both NAPTOSA and the Department of Education – Western Cape in George. It was noted that conciliation had not taken place nor a pre-arbitration minute prepared prior to the dispute being referred to arbitration due to the expiry of the 30-day conciliation period.
2. The applicant, Ms N Mapisa, was represented by Mr X Zigebe, NAPTOSA Official, and the respondent, Department of Education – Western Cape (WCED), by Mr C Vorster, Employee Relations Officer. The first sitting of the arbitration on 2 May 2019 did not go beyond preliminary issues since all documents had not been obtained and exchanged yet. Mr Vorster for the WCED was not present at the second sitting on 19 June 2019. Proof of service to the respondent of the notification of the hearing was provided by the ELRC. Ms T Adonis, NAPTOSA Provincial Chairperson, was present as observer for the applicant on 19 June 2019. The applicant party did not wish to proceed with the arbitration in the absence of the respondent and consulted telephonically off record in my absence with the respondent. The applicant party informed that as the result of their consultations they had agreed with the respondent that the arbitration should be postponed in order for them to further explore settlement of the dispute and for outstanding documentation to be obtained. Postponement was agreed and granted and a written ruling confirming the postponement was issued on 24 June 2019. The parties informed at the next sitting on 8 August 2019 that their attempts at conciliation had been unsuccessful, whereafter the arbitration continued. Mr D Danster, NAPTOSA Shop Steward, was present as observer for the applicant on 8 August 2019. Ms D Volkwyn-Frans, Employee Relations Officer, was present as observer for the respondent on 8 August 2019, 15 October 2019 and 16 October 2019.
3. The proceedings were conducted in English with digital and electronic recordings made. It was agreed that the parties could also make their own recordings of the proceedings, but that the Panelist’s digital record would serve as the official record in the event of a dispute. A full explanation of the arbitration proceedings was provided for the benefit of the applicant, which included the onus of proof and the basic rules of evidence.
4. At the first sitting of the arbitration on 2 May 2019 the respondent raised the following preliminary issue at the commencement of the proceedings: The applicant was dismissed for misconduct based on the charges brought against her. The respondent had requested medical reports and certificates from certain hospitals to cover the applicant’s absences from duty, which the institutions failed to provide, in the absence of which the respondent had no alternative but to proceed with the disciplinary action against the applicant. An application for ill health early retirement or discharge could have been considered based on the findings of the respondent’s Health Risk Manager if the necessary medical reports were available at the time. The applicant party responded that an ill health discharge should have applied for the applicant, not a dismissal for misconduct, therefore they requested her to be re-instated and placed back on the system so that the ill health retirement process could be followed, which could not be initiated if she was dismissed. This was noted as constituting the bases of the parties’ respective cases in these proceedings.
5. At the conclusion of the final sitting of the arbitration on 16 October 2019 the parties requested that written closing arguments be submitted, with the following agreements reached in this regard:
The respondent would submit their closing arguments to the ELRC, copied to the applicant, on 24 October 2019, for forwarding to myself as the Panelist by the ELRC upon receipt.
The applicant would similarly submit their closing arguments on 29 October 2019 and the respondent their reply on 1 November 2019.
The ELRC was informed of these agreements and requested to adjust the award due date accordingly. The written closing arguments were all subsequently received on the due dates.
ISSUE TO BE DECIDED
6. The purpose of this arbitration is to determine whether the applicant, Ms N Mapisa’s, dismissal by the respondent, the Department of Education – Western Cape, for alleged misconduct was fair on both procedural and substantive grounds, as well as the appropriate relief if unfairness is found. The relief sought was retrospective reinstatement. It was confirmed that the onus of proof is on the respondent in this matter.
BACKGROUND TO THE DISPUTE
The following facts were common cause:
7. The applicant commenced service with the Eastern Cape Department of Education in 2002 and relocated in 2011 to the Western Cape Department of Education where she was appointed at Thembalethu Secondary School in George as a Post Level 1 Educator. In 2014 she was promoted to Subject Advisor Post Level 3 at the Eden and Central Karoo Education District Office (ECKED) in George. In this position she reported first to Ms Alta Raath, Head of Curriculum, thereafter to Ms Marietjie Beukes, the present Head of Curriculum, with effect from approximately 2016. The applicant was booked off sick for the following periods from February 2018 until May 2018: Mossel Bay Hospital 20 February 2018 until 2 March 2018 with diagnosis of paranoia delusion and poor insight, when she was admitted forcefully by her family due to a mental breakdown. She was then transferred on 2 March 2018 to George Psychiatric Hospital until 9 March 2018 for bipolar mood disorder with psychosis. She was thereafter transferred to Valkenberg Psychiatric Hospital in Cape Town from 9 March 2018 to 8 May 2018 with diagnosis of schizoaffective disorder bipolar type with co-morbid retroviral disease. She returned to George Hospital on 8 May 2018 and was discharged on 10 May 2018 to return home under the supervision of her family. The applicant only submitted a medical certificate to the respondent for 21 February 2018 to 1 March 2018 for the period when she was admitted to Mossel Bay Hospital. The applicant was issued a notification on 13 June 2018, which she did not sign, to attend a disciplinary hearing on 21 June 2018 to respond to the following charges:
CHARGE 1
It is alleged that you are guilty of misconduct in terms of section 18(1)(i) of the Employment of Educators Act, 76 of 1998 (hereinafter referred to as the Act), in that on or about 2 February 2018 you failed to carry out a lawful order or routine instruction without just or reasonable cause, by refusing to attend a component meeting at the Eden & Central Karoo Education District Office.
CHARGE 2
It is alleged that you are guilty of misconduct in terms of section 18(1)(i) of the Act, in that on or about 06 February 2018 you failed to carry out a lawful order or routine instruction without just or reasonable cause, by refusing to meet with Mrs M Beukes, Head of Curriculum employed at the Eden & Central Karoo Education District Office.
CHARGE 3
It is alleged that you are guilty of misconduct in terms of section 18(1)(i) of the Act, in that you failed to carry out a lawful order or routine instruction without just or reasonable cause, by refusing to attend grade 12 standard settings meeting at the Eden & Central Karoo Education District Office on the following dates:
a) 05 February 2018; and/or
b) 06 February 2018; and/or
c) 07 February 2018; and/or
d) 08 February 2018; and/or
e) 12 February 2018; and/or
f) 13 February 2018.
CHARGE 4
It is alleged that you are guilty of misconduct in terms of section 18 (1)(i) of the Act, in that you failed to carry out a lawful order or routine instruction without just or reasonable cause, by failing to submit weekly plans to Mrs Beukes, Head of Curriculum at the Eden & Central Karoo District Office for the period 02 February 2018 until 16 February 2018.
CHARGE 5
It is alleged that you are guilty of misconduct in terms of section 18(1)(j) of the Act, in that you absented yourself from Eden & Central Karoo Education District Office, by reporting late for duty on the following dates, without notifying your supervisor:
Date Time
05 February 2018 08h00
06 February 2018 08h00
07 February 2018 08h20
08 February 2018 08h15
09 February 2018 08h30
12 February 2018 08h35
13 February 2018 09h00
14 February 2018 08h15
15 February 2018 08h25
16 February 2018 07h50
28 May 2018 07h50
CHARGE 6
It is alleged that you are guilty of misconduct in terms of section 18(1)(j) of the Act, in that you absented yourself from the Eden & Central Karoo Education District, without authorization of your supervisor, on the following days:
a) 19-20 February 2018; and/or
b) 02 March 2018; and/or
c) 05-09 March 2018; and/or
d) 12 -16 March 2018; and/or
e) 19-20 March 2018; and/or
f) 22-23 March 2018; and/or
g) 26-29 March 2018; and/or
h) 03-06 April 2018; and/or
i) 09-13 April 2018; and/or
j) 16-20 April 2018; and/or
k) 23-26 April 2018; and/or
l) 30 April 2018; and/or
m) 02-04 May 2018; and/or
n) 07-11 May 2018; and/or
o) 14-18 May 2018; and/or
p) 21-25 May 2018.
8. The disciplinary hearing took place as scheduled but was postponed by the respondent due to the absence of the applicant. The hearing was rescheduled for 7 August 2018, which proceeded in the absence of the applicant and was chaired by Mr Stephen Boyes, an external Presiding Officer. The applicant was found guilty of all the charges and the sanction of dismissal was issued to her on 9 August 2018. The applicant filed a notice of intent on 17 August 2018 to appeal against the outcome due to the fact that NAPTOSA was not party to the proceedings. The final appeal was submitted to the MEC on 27 September 2018. The MEC upheld the dismissal on 26 November 2018, which serves as the date of dismissal. The applicant was paid in full for the periods that she was booked off sick. The applicant’s Persal number is 53209745 and her basic salary at the time of her dismissal was R33629,50 per month based on the final payslip dated 15 August 2018 for the period ending 31 August 2018 which was received on 12 November 2019 from the respondent.
The following facts were in dispute:
9. Whether the applicant was booked off sick prior to February 2018 from 2016 when the bipolar type disorder was already diagnosed.
10. Whether the applicant had informed the respondent of her other absences during the period February 2018 to May 2018.
11. What the reason was why the applicant was absent at the rescheduled hearing of 7 August 2018.
12. Whether the respondent was required to inform NAPTOSA of the disciplinary action instituted against the applicant.
13. Whether the respondent had followed the guidelines in Schedule 8 items 10 to 11 of the Code of Good Practice: Dismissal of the LRA in dismissing the applicant for ill health incapacity as opposed to misconduct.
14. Whether the respondent had attempted to obtain medical reports from the practitioners who had treated the applicant but was unsuccessful in achieving this.
15. Whether the medical evidence which was supplied to the respondent was only produced after the applicant’s dismissal.
16. Whether the applicant’s dismissal was fair based on both procedural and substantive grounds.
The foregoing agreed facts common cause and in dispute were e-mailed to the parties at the request of the applicant party after the sitting on 8 August 2019 via the ELRC on 19 August 2019.
SURVEY OF EVIDENCE AND ARGUMENT
17. Ms M Beukes, Head Curriculum Support for Eden and Central Karoo Education District Office (ECKED) and Ms C Buitendach, FET (Further Education and Training) Coordinator for ECKED testified under oath for the respondent.
18. Mr R Jacobs, Head of SLES (Specialised Learner and and Education Support) for ECKED, Ms D van der Vyver, Chief Occupational Therapist at George Provincial Hospital and Dr R Ori, Senior Clinician at Valkenberg Hospital in Cape Town, testified under oath for the applicant. The applicant party elected not to call the applicant, Ms N Mapisa, to testify in person due to her mental condition.
19. It is noted that it was agreed by the parties and the Panelist that Ms H Dalvie, Occupational Therapist with Alexander Forbes in Cape Town, hear the testimony of Ms van der Vyver via WhatsApp voicecall in order to assist Mr Vorster with the cross-examination of this expert witness.
20. It is further noted that it was agreed by the parties and the Panelist that the testimony of Dr Ori in Cape Town be conducted remotely via WhatsApp video and voicecall, as well as telephone landline.
21. Documents were handed in by both parties and admitted, except where indicated otherwise and in which instances the authors would be required to testify in person to the documents. It is noted that certain medical reports for the applicant were only produced or made available after the applicant’s sanction of dismissal was handed down on 9 August 2018.
22. Due to the considerable volume of evidence presented during the arbitration, only the evidence relevant to the facts in dispute are summarised below and that which was established as common cause is not repeated, unless relevant. Witnesses’ evidence in chief, under cross-examination and re-examination are summarised separately to assist with the evaluation of their evidence.
THE RESPONDENT’S EVIDENCE
23. The respondent’s case was as follows: Allegations were received about the applicant in February 2018, which were investigated at the time and found that there were grounds to charge the applicant, bearing in mind that she was booked off sick from about 2 February 2018 until approximately 28 May 2019 without anybody knowing where she was. The respondent closed the matter temporarily in order to locate the applicant. After the applicant reported for duty on 28 May 2019 she was charged for misconduct. Prior to conducting the investigation the respondent tried to get medical evidence for the applicant but in the absence of the medical reports being produced the applicant was charged for misconduct since the respondent could not wait any more. The first sitting of the disciplinary hearing was postponed after the applicant was absent due to having applied for annual leave from 21 June 2018, which she nevertheless took without the approval of her superior Ms M Beukes since the leave applied for fell over the period of this disciplinary hearing. The respondent was lenient by also postponing the second sitting of the disciplinary hearing due to the medical evidence still being absent. The applicant was present at work on the rescheduled date of the disciplinary hearing of 7 August 2018 but refused to attend the hearing, which continued in her absence. The applicant was dismissed and the subsequent appeal to the MEC was also dismissed. The medical evidence was eventually submitted by NAPTOSA but it was too late at the time. The respondent will testify that they tried to assist the applicant on various occasions but to no avail and had to wait four to five months for the information, which was too long in a professional environment. The applicant had dual union membership and belonged to both SADTU and NAPTOSA, who were both informed as a courtesy of the disciplinary action against the applicant on 13 June 2018, but the applicant did not want either union involved at the time. The respondent would prove the misconduct as stated in the charge sheet and that they tried their utmost to assist where they could to obtain the medical evidence before they proceeded with the charges against the applicant. They were not prepared to consider re-instatement as relief in this matter.
24. Ms Marietjie Beukes testified as follows under oath in her evidence in chief: As Head Curriculum Support she was the line manager of Coordinators and the Subject Advisors at Eden and Central Karoo Education District (ECKED), in which post she was appointed on 1 July 2016. Prior to that she was the General Education and Training (GET) Coordinator for grades R to 9, during which period she met the applicant as a Subject Advisor in the Curriculum component. She was referred to the charges which were addressed in the applicant’s disciplinary hearing. With respect to the first charge of failing to follow a lawful order or routine instruction to attend a component meeting, she explained the importance of the component meetings, in particular that the first component meeting is crucial since it is at the start of the school year during which training programmes and the activities that the component will focus on in the year ahead are finalised, such as school visits and logistical planning and organising, with reference too to the District Calendar issued by the Director in December for the next year. The component meeting which the applicant did not attend was on 2 February 2018. The applicant was aware of the meeting since it was circulated and the Coordinator Ms C Buitendach also confirmed that everybody had been informed of the meeting. Ms Buitendach coordinates and manages all the Subject Advisors, which included the applicant, for SENFET (Senior Phase Education and Training) which is for grades 8 to 12. When she communicated with the applicant she, the applicant, stated to her on various occasions that she was not cooperating with her, Ms Beukes, and would ignore her from time to time, with her exact words one time being “you know that I am not cooperating with you”. Regarding the second charge of the applicant refusing to meet with her on 6 February 2018, she explained that because the applicant was not cooperating and engaging and not attending meetings, whe wanted to call the applicant into her office to explain the process and motivate her, the applicant. She went to the applilcant’s cubicle in the open plan area and asked her to please come to her office to discuss something with her, which the applicant refused to do. Regarding the third charge of the applicant refusing to attend grade 12 standard settings meetings on the dates listed in the charge, she explained the importance of these meetings and that the core job of the Subject Advisors is to develop, empower and support Educators. At the beginning of a year the Subject Advisors have the opportunity to meet with all subject teachers and also reflect on the results of the past matriculation examinations and how to improve the support and communicate to Educators what should be covered and implemented in the year to come. They decided to meet in the 6 circuits for grade 12 on 6 days in the beginning of February 2018. The Subject Advisors travel to the venues and the Educators travel to the venues. The applicant was responsible for history in FET and grades 8 and 9. The applicant was charged for not attending these meetings. Her purpose in these standard settings meetings was to conduct the meeting as the Subject Advisor in history and without her presence the meetings could not take place. When she communicated with the applicant that she had to facilitate these meetings the applicant indicated that she would not be facilitating any workshops for big groups any longer, but would be prepared to do one on ones with the History Educators. It was not possible to do the standard settings one on one as all Educators collectively needed to be on the same page, and with one on one standard settings it would take the whole term to get to all the schools. With respect to the third charge for failing to submit weekly plans from 2 to 16 February 2018, she explained the purpose of the weekly plans, which was for Subject Advisors to indicate their programme for the week and which school or schools they will be visiting, that forms the database for the statistics at the end of the month. It was important that they plan ahead of time what they must do and also plan for transport. The importance of the weekly document was explained to all Subject Advisors at a FET meeting on 9 October 2017 and they were all aware of the weekly plans to be submitted weekly on a Friday, which the line managers will follow up if they do not submit the plans. The applicant was included in the e-mail examples of Advisors who were followed up and did not want to update their weekly plans. It was the line manager’s responsibility to follow up with the Subject Advisor for not submitting weekly plans. Ms Buitendach, the applicant’s line manager, did follow up with the applicant and reported that she spoke to the applicant, who still did not submit her weekly plans. With respect to the fifth charge of the applicant reporting late for duty on the listed dates without notifying her supervisor, she confirmed that they all had to be at their workstations at 07h30 and that part of the line manager’s responsibility is to monitor the signing in of their team every morning. It was important that if a Subject Advisor knew that he or she was going to be late that the line manager or herself, Ms Beukes, be informed of this. The applicant was aware that she should report for duty at 07h30. The applicant did not inform her timeously that she would be late on those dates but would indicate afterwards that she had transport problems instead of informing in advance if she knew she was going to have problems. They did try and assist the applicant when she had transport problems from where she stayed in Mossel Bay to work in George, with an example cited from around October 2017 when the Director Mr D Maarman also intervened. With respect to the sixth charge of the applicant absenting herself without the authorisation of her supervisor on the days listed in the charge, she responded as follows: The applicant did not turn up for work on 19 and 20 February 2018 and did not contact her line manager, but it was established afterwards that she left a message with the reception, which is not the standard operating procedure whereby the line manager or her, Ms Beukes, must be informed if she is going to be absent, which they are strict on. The applicant was thereafter absent for the rest of March 2018 and she tried to establish where the applicant was and whether she was ill, which she also discussed with Ms A Booysen the Labour Relations Officer, the Director and the applicant’s line manager. The Director had stated it would be serious if the applicant was absent for more than ten days without informing the line manager or herself. She established afterwards that the applicant was admitted to hospital in Mossel Bay. She telephoned the Hospital, who informed her that the applicant had absconded, was admitted again and then transferred to George Hospital. She then telephoned George Hospital and the switchboard operator in George referred her to the female ward, who informed her that the applicant had been a patient there and was transferred to Groote Schuur Hospital in Cape Town. She telephoned Groote Schuur enquring where she could find a female person who was admitted to a psychiatric ward, who in turn put her through her to Valkenberg Hospital. The Sister there informed her that the applicant was a patient at Valkenberg and she asked that her greetings and best wishes be conveyed to the applicant. Ms Y Sity the Occupational Therapist at Valkenberg telephoned her and confirmed that the applicant was a patient there, and wanted to obtain more background about the applicant and what type of work she performed. She explained the core business of the applicant’s work to Ms Sity, who informed that they will meet as a multifunctional team and get back to her, Ms Beukes. She also spoke to the applicant’s son on 22 February 2018 and on 20 February 2018 a person telephoned her who stated that he was the applicant’s brother. She informed the brother that if the applicant did not contact her, Ms Beukes, and does not tell her what is wrong, it will be difficult for her and that she must complete a leave form. Ms Booysen of Labour Relations recommended on 21 February 2018 that they deliver a letter to the applicant to request her to contact her, Ms Beukes, or the office. Mr Tserane the Messenger went to deliver the letter, to which a leave application form was attached, to the applicant on 22 February 2018. Ms Booysen sent her an e-mail on that day that Mr Tserane informed her that he went to the applicant’s house but could not find her. Only the applicant’s parents were there and informed him that the applicant was sick. He brought the letter back and asked the parents to contact her, Ms Beukes, and for the applicant to complete the leave form. The applicant did not contact her as requested. She had also asked the son and brother to get the applicant to contact her and complete a leave form. At that stage no documentation nor communication had been received from the applicant regarding her absence from work. Ms Sity the Occupational Therapist at Valkenberg, when asked, said she could not share any information with her about the applicant since it was confidential and that the respondent must contact their Head Office and ask them to forward the forms to be completed for the applicant. Ms Sity explained that she could not break the patient therapist confidentiality and just sent a letter stating that the applicant was a patient there and the son only sent a certificate of admission to the hospital. She, Ms Beukes, explained that if leave is of a certain length temporary incapacity leave forms with doctors’ reports must be completed, not just the normal leave form. She had explained the seriousness of the absence of the medical report to Ms Sity. She had made many efforts to assist the applicant with her medical condition and protect her work, with examples cited of correspondence and communications with the applicant’s son and a conversation she had with the applicant’s daughter’s School Principal informing that the mother is not well and to keep an eye on the daughter. It was not true that she did not care about the applicant. Reference was made to progressive discipline implemented previously for the applicant, firstly on 29 November 2017 at a disciplinary meeting held for similar type of misconduct by the applicant for which a written warning was issued to the applicant valid for 6 months, as well as on 25 January 2018 again for similar type of misconduct, for which a final written warning was issued to the applicant, who was absent from both meetings. Prior to the internal disciplinary proceedings instituted against the applicant she had discussed the applicant’s behaviour and lack of cooperation with her on numerous occasions. An incident occurred when the applicant came to her office and demanded that she as Head of the component answer her questions on previous matters that the applicant had referred to Labour Relations, which had happened prior to her, Mr Beukes, taking up her position, and which she indicated to the applicant she did not know about and could not investigate for her. She had requested from the applicant that she put this in writing so that she could go to the Labour Relations Officer to find out what it was that the applicant had a problem with, which the applicant refused to do because she stated she got into trouble the previous times she put things into writing. The applicant informed her that one of her colleagues had a grievance about the way she behaved towards him and that she, the applicant, had threatened him. It was referred to her as the applicant’s line manager and the applicant’s words were that that she was going to give her, Ms Beukes, until September to solve it and that she, Ms Beukes, would see what will happen if she did not provide the applicant with answers and explanations to her questions, which she referred to People Management. The applicant also wrote to a letter to the Director in September 2017 that she must be removed from her, Ms Beukes’s, component and that the Director must become her manager because of a lot of propaganda she had against the applicant. The Director called both of them into a meeting and explained to the applicant that by not cooperating with her, Ms Beukes, that she could get into trouble. He has also asked the applicant if she wanted to bring a family member or union in to assist her if she was not feeling well.This demonstrated that she had tried to assist the applicant prior to the final disciplinary action. She could not as the Head of the component trust someone who said that she would not cooperate with her and stands up in front of everybody and says you know I am not cooperating with you. She had to manage the situation and protect her position as manager of the biggest team. She had to make a tough call against the applicant although she understood there was an illness behind it, but in the absence of evidence, she had to ensure that policies are adhered to and progressive discipline is provided to anybody who transgresses.
25. Ms Beukes testified as follows under cross-examination: She responded to the question on how her interaction with the applicant was at the time that she was GET Coordinator and Deputy Chief Education Specialist and that as far as she was concerned it was a good working relationship, such as that she assisted the applicant to do Afrikaans translation and proofreading for her for documents that the applicant had to prepare for a workshop. At that point of time the applicant treated her with the respect that the position deserved. Their interaction was sporadic when the need was there because Mr S Swartz the FET Coordinator was the applicant’s direct line manager at the time and she was managed by him 99 percent of the time. Issues regarding grades 8 and 9 came to her as GET Coordinator. She would not know if there was anything discussed with the Senior Curriculum Advisors about the applicant’s behaviour at the time because Ms Raath who was the Head then used to discuss disciplinary measures and issues regading the SENFET team only with the FET Coordinator, which meetings she was not involved in. She knew however that there were processes going on as picked up on the floor. She was never called into the office by Ms Raath, but she mentioned one incident to her regarding a cell phone. She was asked to comment on the applicant’s competence since she was appointed in her current post on 1 July 2016 for the period 2016 and 2017. Mr T Harmse was the FET Coordinator at the time and she did not recall him raising any complaints from school visits about the applicant. It is noted that Mr Vorster for the respondent objected at this point since the applicant was charged for misconduct and not poor work performance. The applicant at the time of the misconduct and all the hearings was a different person from 2016. In 2016 the applicant was managed by Mr Harmse as Head of Curriculum and no lack of performance was reported to her for the applicant in 2016. She responded to the statement that all the applicant’s charges emanated in the month of of February 2018, that the same actions that the applicant had been progressively disciplined for in the previous year surfaced again in February 2018 with the final written warning issued on 1 February 2018 still on file. She then, under the guidance of the Director, compiled the charges to hand over to Labour Relations, which did not include the previous charges. After the applicant did not attend the disciplinary meetings on 29 November 2017 and 25 January 2018 she and the Labour Relations Officer went to see the Director about their concern that the applicant is harming herself by behaving in that manner. The applicant was called in to speak to the Director and herself. The reason she went to the Director is that she suspected there was something not right with the applicant and that she can only go on the facts. The Director had told the applicant that what she is doing is unreasonable and asked that she get a union or family member to help as it seemed that she was harming herself, pleading with her to cooperate with Ms Beukes as Head of Curriculum. The applicant’s words to the Diector was that there was nothing wrong with her. She viewed the applicant’s erratic behaviour as wilful and disruptive conduct with the indication on 24 July 2017 when she came into her office and said she demanded clarity on her previous grievances and issues that she had and if she, Ms Beukes, did not provide the answers she would give her time until end September 2017 and then see what happens. She was referred to the applicant’s ill health retirement application which was prepared on 13 June 2019 and what she wrote at item 11, in particular that the last months before November 2018 after the applicant returned from leave that the applicant only sat in the office, often slept at her desk, seemed disorientated, did not talk or cooperate and did not work or switch on her computer. This happened after the disciplinary process was completed for misconduct, with her behaviour deteriorating after the final sanction was given to her and she appealed against the outcome. In February 2018 she did not sleep at the desk, with her behaviour then of not cooperating and not doing standard settings and the applicant went on leave until 28 May 2018. She was only asked to complete the ill health retirement application in June 2019 after the applicant was already out of the system and NAPTOSA had persuaded the applicant to sign the form to have the confidential medical information released. Before the medical information was received they could only go on the applicant’s behaviour, making it easier for her to write the comments in item 11 in retrospect after having the bigger picture. She established that the applicant was hospitalised in Mossel Bay and George during February to May 2018 and the applicant’s son informed her on 11 March 2018 that the applicant was taken to Cape Town, whereafter she established on her own that the applicant was at Groote Schuur. She did this because as the applicant’s line manager she had to make sure that the applicant completed the relevant leave forms within the time span, otherwise the applicant could be dismissed in terms of policy. In response to the question if she would have still pursued a disciplinary hearing for misconduct if the medical report of 9 March 2018 issued by Dr Ori of Valkenberg was received prior to the disciplinary hearing and not subsequent to the applicant’s dismissal, she stated that the Occupational Therapist who she spoke to at the time said that the applicant would not be in a position to complete the forms and that she would forward the form to her for completion on behalf of the applicant. She did not think it was her call at that point in time to withdraw the charges against the applicant since the Director had already instructed on 28 May 2018 that the matter go ahead. Labour Relations put the case on hold because the applicant was on sick leave. The evidence only came later and there was no information available at the time. She had to respond to the facts and activities in her competence since she was not a Psychologist and agreed that things could change in retrospect. She did not believe she was in the position to respond to the statement that she was aware that the applicant was hospitalised for 3 to 4 months and suffered psychotic illnesses and whether this was how the respondent treated employees who were ill, she could only relate to what happened with them and that the Director instructed her to proceed with the charges and that the applicant said during the first meetings when she came back on 28 May 2018 that there was nothing wrong with her and that nothing has changed when she was asked to cooperate with her, Ms Beukes. A lot of things in retrospect could have changed if they had the reports and the applicant did turn up with representation in the disciplinary hearing, then the evidence would have been there and the whole case would have fallen in place, but they had to respond to what they had on the table. If all the information in detail was known to everybody at the time, which she put great effort in obtaining, she was certain everybody would have managed the actions against the applicant differently, but the applicant persisted in constant denial that anything was wrong with her. Ms M Jenkins the private Occupational Therapist’s report was issued after the applicant was dimissed and when the notice of intent to appeal against the sanction was submitted by NAPTOSA. Ms Jenkins met with her, Ms Buitendach and the applicant, after she issued her findings after the final hearing and progressive disciplinary process for the applicant was completed. Ms Jenkins’s main finding was that the applicant was not fit to perfom her duties. What she saw of the applicant at that time was a person not fit for duty and suffering, which is why she asked assistance from Mr R Jacobs and telephoned the Occupational Therapist and spoke to the Director. Since the applicant still did not want to cooperate with her Mr Jacobs assisted the applicant in completing the necessary forms. She had referred the applicant to the employee wellness programme (ICAS) during the progressive discipline of November 2017 after the applicant did not arrive at that disciplinary hearing, but the applicant had stated that there was nothing wrong with her. She had not seen the document from George Hospital certifying that the applicant was unfit for duty from 30 October 2018 to 31 March 2019 that was issued on 30 October 2018 by the Psychiatrist Dr B E Boon since it was not submitted to her but to Head Office. She could not comment on whether the two progressive disciplines of 22 November 2017 and 18 January 2018 were a perpetuating factor for the applicant’s condition but noted that in the second half of August 2018 the applicant’s behaviour was more visible and erratic as in 2017, because she at that time was not as an example sleeping at her desk. In response to the question on whether she felt it fair that the applicant should suffer because she could not write her own medical reports and that these were not supplied by the doctors and occupational therapists when requested, she stated that in the absence of any evidence she believed that the process taken by Labour Relations was fair.
26. Ms Beukes testified as follows under re-examination: Prior to the progressive discipline which commenced in 2017 and overlapped into 2018 she wanted and tried to reach out to the applicant, but she did not want the help, which could have been part of the disease.
27. Mrs Christina Buitendach testified as follows under oath in her evidence in chief: She was the FET (Further Education and Training) Coordinator and coordinated the Subject Advisors at secondary and high schools in Eden and Central Karoo Education Dstrict, which included Plettenberg Bay to Murraysburg, and to Heidelberg and Laingsburg. She was appointed in his position in July 2017. Prior to this appointment she was the Economics Subject Advisor at this office. She had known the applicant since she joined the office. She was referred to the charges brought against the applicant and basically confirmed what Ms Beukes had testified in her evidence in chief, which evidence is not summarised here again, save to highlight the following: With respect to the first charge, at that stage the applicant did not want to cooperate with any programme in the FET and even when she was reminded to attend a meeting she refused to do so. She reiterated the importance of the component meetings, which are important for the learners, since if they did not do their work nothing gets to the learners and these meetings determine how their work is done and impacts directly in the end on the learners. With respect to the second charge, when she went to call the applicant to go to Ms Beukes’s office she said to her that she is not going to the office and refused to go. Wth respect to the third charge, she added that the standard settings included that in each specific subject there are certain requirements such as three tests, three assignments and a project, which all Educators in a subject must do throughout the year, which is why all the Educators in a subject must be on the same page. The applicant was informed to attend that meeting and to present the History meetings at all the venues on those dates.
They had a discussion about it and the applicant refused to be part of it and said she might be able to attend the George one on 12 February 2018 but did not in in the end. With respect to the fourth charge relating to the weekly planners the applicant knew about these since they discussed these at meetings and the applicant was supposed to submit her weekly plans to her, Ms Buitendach. Even if the applicant was not part of the meeting, she took the printout of the minutes to the applicant’s desk. The weekly planners were very important since it includes the Subject Advisors’ school visits, which is her job to coordinate. The planners also helped to flag issues that they indicated is a problem at a school. With respect to the fifth charge relating to latecoming, she did ask the applicant why she came late on consecutive days and she thought the reason was that the applicant had car and transport problems and had to either rely on a lift or taxi to get to work from Mossel Bay. The applicant did have a car, but there may have been a car problem due to an accident that she was involved in. Ms Beukes had taken this up with the Director Mr Maarman since they had an office in Mossel Bay and gave her time to attend the Mossel Bay office whilst she was sorting out her transport problems. The applicant did come back but the problem was not resolved yet and the latecoming continued. The applicant was aware that she had to work from 07h30 until 16h00 every day. On the days that the applicant was late the applicant did not come to her to explain why she was late or inform in advance why she was late, but just signed in exactly when she came in and was very honest with her times. With reference to the sixth charge about unauthorised absence from duty, every employee at their office must hand in a leave form before they stay away, but if one falls ill and had not completed a sick leave form this must be done as soon as one returns to work or if the absence is going to be for a long period an arrangement must be made for the completion of the form with clear dates when the employee will be away from the office. She could not recall the reason for the absences, but did report it to Ms Beukes who handled it further on. She was aware that Ms Beukes telephoned and got hold of the applicant’s son and that the applicant was hospitalised in Mossel Bay and was then transferred to George Hospital. She was not part of all these communications of Ms Beukes but she always kept her in the loop. She did not participate in Ms Beukes’s e-mail correspondence with Ms Y Sita of Valkenberg Hospital although she was copied on this for information. It was true that Ms Beukes had not received any report from any therapist since 19 February 2018 and she knew that Ms Beukes was very worried as they did not have documentation to support the applicant’s leave and that if it was not received in time the applicant’s leave would be exhausted and it may be deducted from her salary. The medical evidence requested was obtained, but very late and every time they tried to contact the institutions they said it was personal and that they could not talk to them since they were not family. As the applicant’s supervisor and first line manager she and Ms Beukes tried to assist the applicant prior to these charges but it was difficult as it was not easy to communicate with the applicant and explain to her how important it was for her to attend the disciplinary meetings and explain her side, but she said she was not guilty and did not want to be part of any of that. Ms Beukes had engaged with the applicant more than once to help the applicant with her transport problems and tried to arrange for Head Educators to help out if the applicant could not attend a meeting. She confirmed that she conducted two progressive disciplinary meetings with the applicant and that the applicant refused to sign the documents. Prior to these meetings she, Ms Beukes and Mr Damons one of the Managers of the assessment part, had a consultation meeting with the applicant in she thought October 2017, when the applicant wanted to perform the year end verification process differently by asking the Educators to bring the material to her in the office instead of her going to them, but the applicant persisted in doing it differently and they had to start the disciplinary process. It was difficult for her to work with the applicant when she became her direct line manager since the applicant basically rejected everything, refusing to cooperate and get involved. It was not like that initially but it became like that, with the applicant starting to do her own thing. She never had anything against the applicant prior to the disciplinary actions and always thought that they had a good relationship. She once or twice gave the applicant a lift to the taxi rank and as colleagues they once or twice drove to Beaufort West and Cape Town together and she never felt the relationship between them was not good. She felt that they had a closer relationship than the other Advisors. She had no grudge against the applicant or anybody else.
28. Ms Buitendach testified as follows under cross-examination: She was surprised that the applicant would refuse everything requested of her in the month of February 2018 compared to her behaviour the past three years but her behaviour started to change for a period of 3 to 4 months from October 2017 and her behaviour just continued when the new term stared. Prior to the disciplinary meeting of November 2017 and comparing how she knew the applicant as a colleague the applicant really tried to be there and do everything and be part of the structure but after an incident in more or less October 2017 her behaviour started to change and everything was different. She was not aware of the applicant’s allegations that around that period when she started to refuse to do things that someone told her that there is a person who sent out pictures of her naked to social media and this was never brought to her attention. She had noted on the progressive discipline documents that the applicant had refused to sign these. The applicant would in the past not usually refuse to execute her duties as prescribed and would do what was expected of her. The applicant never spoke to her about plans to sabotage the aims of the respondent. She was not aware when they were colleagues and travelling and working together that the applicant had problems in working with other people. As one of the Advisors that she had to coordinate she would expect other things now from the applicant and experienced her in another way, such as in the past it did not matter to her or know whether the applicant handed in her weekly plans or not. With respect to the weekly submissions, she was aware that the applicant’s computer would not work properly and she had problems with it and often reported this to them. It took a month or two after she was appointed in her new job at the end of 2017 that she realised what had to be handed in where and when, such as the weekly plans. The interventions that they implemented when they saw that the applicant was reporting late for duty on consecutive days from 5 to 16 February 2018 consisted of talking to the applicant to establish if there was a problem, when the applicant admitted there was a problem with transport and the Director was lenient by giving her a few days in the Mossel Bay office to sort out her transport problem. They let it go for about two weeks and after that they said that it could not continue like that and they realised that it was not going to be resolved. After the intervention the applicant’s timekeeping was better but the problem was definitely not solved as there were still days that she came in late. She could not remember if the applicant approached her during the period 22 November 2017 to 18 January 2018 to inform her that she had a medical condition, but that was over the December holidays. The applicant did not attend both those disciplinary meetings with the response that she is not going to attend a meeting like that. The communication with the Occupational Therapist Ms van der Vyver was attended to by Ms Beukes since all leave and sick leave went to Ms Beukes. She once spoke to Ms van der Vyver when she called and Ms Beukes was not available when she confirmed with Ms van der Vyver that the applicant worked for them and she thought that Ms van der Vyver made and appointment to come and see them about the applicant. She was however not involved in the communications and with the stakeholders from Health but was copied in on conversations but never saw the documents since they were confidential. She was not the custodian of the employees’ leave files but most of the time the leave forms were handed in to her and she took them to Ms Beukes to sign permission after she had checked to ensure that they were completed. She confirmed that she did not communicate with any of the stakeholders but was present when Ms M Jenkins the private Occupational Therapist gave feedback on the applicant’s assessment. She could see in retrospect that the conditions that the applicant was diagnosed with could have had an impact on her behaviour. In response to the question on whether she experienced the applicant as paranoid and argumentative when she was charged, she stated that what she experienced was refusal of basically everything. She recalled two incidents in the office when the applicant was aggressive to some of the colleagues prior to the notices and meetings and prior to her being charged. She was referred to the report of the Occupational Therapist Ms M Jenkins of 3 September 2018 in which it was noted that the applicant moved and spoke slowely and that her facial expression was limited, and confirmed that she definitely observed the same with the applicant. She as line manager did not ask the applicant if there was any medical condition or illness when she observed that, but did know that Ms Beukes spoke to the applicant about this. She could not confirm the collateral information provided in Ms Jenkins’s report nor comment on certain of the observations made by Ms Jenkins and the information that Ms Beukes provided in the applicant’s ill health retirement application, but did know that the applicant experienced problems in the relationship with her Senior Curriculum Planner in Cape Town and History Specialist in the Province in the end, but not always. From the short period that they worked as Coordinator and Advisor she experienced the applicant’s behaviour difficult and found it very tiring to work with her in the end.
29. Ms Buitendach testified as follows under re-examination: She never saw the four medical reports of Ms van der Vyver, Ms Jenkins, Dr Boon and Dr Ori for the applicant before and had only really seen them here at the arbitration. She did not think that Ms Beukes had seen any of these before either. Without these medical reports to guide they would definitely not have known what the applicant’s problem is. The applicant just said there was nothing wrong with her. While the applicant was still at work she asked the applicant to rather go and see a doctor but she said no, that she had no problems.
THE APPLICANT’S EVIDENCE
30. The applicant’s case was as follows: They were of the view that the respondent had firstly taken an unfair decision to dismiss the applicant on the basis that the disciplinary hearing was conducted in the absence of the applicant. The respondent had a duty and responsibility to inform NAPTOSA as the applicant’s trade union about the the dates of the disciplinary hearings so that they could have made arrangements to be present to assist the applicant. The decision was secondly unfair since by the time the charges were brought to the attention of the applicant she had been hospitalised at different hospitals for the period of approximately four months between 20 February 2018 to 4 May 2018, which included Mossel Bay Hospital from where she was transferred to George Hospital and then to Valkenberg Hospital in Cape Town. The diagnosis which they looked at was schizoaffective disorder bipolar type, which was a combination of schizophrenia and mood disorder. At the time the applicant was admitted on 20 February 2018 it was not a voluntary admission but a forced admission by her family against her will. The applicant was discharged from Valkenberg Hospital on 4 May 2018 as an out patient and assigned to her son for monitoring while she was still under doctors’ orders until 28 May 2018. The charges against the applicant emanated immediately after the applicant was discharged from hospital, which in their view indicated the respondent’s stance that they did not want to assist and support the applicant in her condition, but adopted a punitive approach and chose to charge the applicant for misconduct instead of following ill health discharge processes. They therefore regarded the conduct of the respondent as procedurally and substantively unfair and requested an order that the applicant be reinstated with retrospective compensation from the date of dismissal of 26 November 2018, with her last payment of remuneration being on 15 November 2018.
31. Mr Roger Jacobs testified as follows under oath in his evidence in chief: He was presently the Head of SLES (Specialised Learner and Educator Support). They had a psychological sub component in SLES and those officials must be registered as psychologists. In addition they also employed social workers and learning support advisors and an occupational therapist and had a HIV AIDS section. The applicant was a colleague who worked as History Advisor in the same office and he knew her from when she started working for the respondent. In 2018 he was the Shop Steward for NAPTOSA for ECKED. The applicant never brought the charge for 18 January 2018 to his attention as the Shop Steward for the District. He explained his role as Shop Steward at the time. He was not given the opportunity to advise the applicant regarding the notice of the disciplinary hearing issued to her on 13 June 2018 for the hearing to be held on 21 June 2018, although the seniors were definitely aware of this. Neither the seniors nor the applicant informed him of this hearing. The applicant came to see him after she was dismissed. Ms Beukes requested him before the applicant was dismissed to conduct a conflict mediation session between the applicant and Mr T Molefe, the IsiXhosa Subject Advisor. He had the two parties in his office and tried to reconcile them at that stage, but the mediation was unsuccessful since Mr Molefe was very upset and the applicant was very emotional on that particular day. This happened between 3 to 6 months before the applicant was dismissed. After the session with Mr Molefe the Director and Ms Beukes consulted with him with respect to the applicant as he at that stage was still registered as an Educational Psychologist. The applicant told me that she consulted Dr C Swanepoel, whom he knew, and he telephoned Dr Swanepoel and invited her to join him, the Director and Ms Beukes in a meeting. At that stage he recalled that the applicant was taken up in the Neuro Clinic in George for about a week. The applicant attended the Neuro Clinic and returned to work. After the applicant informed him of her dismissal he immediately telephoned Ms B Probart who is the NAPTOSA Office Manager in George. Ms Probart assisted the applicant with her appeal since the applicant could not complete the appeal form himself at that stage. He confirmed that the applicant could not complete documents herself at the time. He had observed the applicant at various stages and at that particular stage she was very lethargical, calm, helpless, hopeless, did not talk a lot and he got the impression that she did not understand the detail of the form and what was asked of her. As a layperson he observed that the applicant was definitely not rational and during the conversation he had with the applicant she had delusions and extreme paranoia about her phone and computer. According to his knowledge this was indicative of psychotic behaviour and the psychosis that he observed at that stage he also conveyed to Dr Boon and Ms van der Vyver at George Hospital. Everyone in the office could see she was not healthy and not behaving in the rational manner as expected, and that even a layperson could see that there was something seriously wrong. He was not aware that the applicant was in February 2018 admitted to Mossel Bay Hospital, later transferred to George Hospital and then later to Valkenberg Hospital, and only heard about this afterwards. He did not regard it as a fair approach by the respondent for a person who was admitted for almost 4 months in a mental institution to be charged for misconduct after returing to work, since if one had been hospitalised that long in Valkenberg it showed the severity of the condition that she has been diagnosed with. One would have expected Valkenberg to communicate with the respondent and to support the applicant in her work and as far as Ms Beukes told him this did not happen and that Valkenberg did not communicate with Ms Beukes about the applicant’s condition, which to him was very unfortunate. In response to the question on who is the victim in the entire process, he stated that he at that stage remembered that he had an open conversation with Ms Beukes discussing what to do if they could see if a person is not functioning and she herself does not acknowledge, with total denial, and the person gets cross, if there are policies to assist the person to go on sick leave or to be medically boarded when one is reliant on the person herself to admit she is sick and go for help. He gave the example if something happened to him and he is totally out of touch with reality that hopefully his wife and family would assist to get him medically boarded. In the case of the applicant there was no such support, only the two children, with no person to assist and take her to hospital. They all, including Ms Beukes, realised that there was something seriously wrong with the applicant. In his view it would have been better if the applicant had been discharged for being medically boarded because of ill health.
32. Mr Jacobs testified as follows under cross-examination: He agreed that it was the responsibility when someone receives a disciplinary notice to inform their union. The applicant did not inform him about the previous disciplinary action against her in November 2017. He agreed that it was not the fault of the respondent and confirmed that the applicant’s rights were conveyed to her in the notice. He was aware that Ms Beukes and Ms Buitendach tried to to support and assist the applicant during 2017, especially Ms Beukes who asked him to assist in the first place. It was during that time that Ms Beukes asked him to assist to reconcile the applicant and her colleague. At that stage he was not aware that the applicant had not attended the two progressive disciplinary meetings and it was only afterwards that Ms Beukes told him that the applicant did not attend the meetings and that she informed the respondent that she was not going to attend them. As to whether somebody states she is not going to attend depended on the state of the person. For a normal rational person it would be the person’s fault and for a psychotic person who was not in touch with reality it would not be the same. From a manager’s perspective and whether it was unfair for the respondent to proceed with disciplinary action in the absence of medical evidence as to the applicant’s condition, he responded that it was difficult as a manager since rationally you knew it was a severe medical condition but you had somebody who did not admit and go to hospital and seek help and present evidence and have to decide how to handle that. He thought Ms Beukes’s strategy at the time was to put pressure on the applicant to seek medical help, and that she meant well by doing that. Each case was however unique and the applicant did not have good support in that the family were not forthcoming to assist and he believed Ms Beukes did try to contact children and also spoke to the applicant’s brother. He would probably have dealt with this differently from a manager’s perspective as a Psychologist who was not registered at present. From a policy point of view there were not many tools for managers to deal with these type of situations, since it is expected from the individual self to get medical evidence, which in this case was not possible, with complete denial and the applicant unable to even complete a form. He believed that Ms Beukes was not mailicious and had really tried her best, that he could not fault her, nor the applicant, but it was hoped that it could be learnt from this that if he for example got dismissed because of psychosis and it was seen that he walked up and down the stairs and did not get someone to represent thim that he was not rational at that stage. After the meeting with Dr Swanepoel and the Director the applicant went for therapy sessions with Dr Swanepoel, who had treated the applicant before, and she as Clinical Psychologist recommend that the applicant be admitted to the Neuro Clinic for a week. He could not remember the exact dates of that and it was noted that the no documentary evidence was submitted by the parties with respect to the applicant’s admission to the George Neuro Clinic. He could however confirm that himself and Ms Beukes had a meeting with Dr Swanepoel and the Occupational Therapist of the Neuro Clinic after the applicant’s discharge to discuss her re-integration back in the workplace. Ms Beukes told him that the applicant had gone missing from March 2018 and that he was aware that Ms Beukes had tried to get hold of the applicant between March and May 2018 and that contact was made but that she was not aware before that where the applicant was. He was aware that Ms Beukes struggled to get the medical reports from the respective hospitals and specialists, in particular from Valkenberg, to complete the temporary incapacity leave for the applicant. Ms Beukes told him that Valkenberg would not give her the information since she was not a relative of the applicant, and he would testify that she tried to get the evidence but failed to do so. In response to the question whether it was the fault of the respondent to discipline the applicant for misconduct after trying after four months to get the medical evidence he stated that in cases like that when the person is clearly incapacitated any rational person could see that she was not a normal functioning individual. The respondent’s policies should provide for them to put the person on incapacity instead of them expecting the person themselves to take the responsibility when the person is not capable of doing so him/herself and have to rely on others to do so for them. He responded to the statement that from a manager’s perspective that one could not work outside the policy and have to work within the framework and in the absence of medical reports and the disciplinary code it was fair to charge the applicant, it was not the applicant’s fault that she got sick with psychosis and he regarded it as ethically unfair to charge someone for misconduct if he or she was sick. He knew that Ms Beukes tried her best to assist, had no malicious intent and was extremely distraught the day when the applicant’s appeal was unsuccessful. He knew for a fact looking at the medical evidence that that the applicant should not have been dismissed for misconduct. Their policies did not make provision for this type of case, whereby Ms Beukes could not execute the right decision. He did not have professional engagements with the applicant in 2017 as a manager, but did know that there was a marked difference in the applicant’s behaviour in meetings, specifically a wellness day session that he organised in October 2017 when the applicant got up and started talking causing an uncomfortable situation, when he could see there was something severely wrong. He agreed that it would be difficult as a manager to assist someone if the person denies that there is something wrong. He conveyed to Ms van der Vyver and Dr Boon that the applicant was not healthy and rational after the applicant received the letter confirming her dismissal.
33. Mr Jacobs testified as follows under re-examination: The applicant’s situation was unique compared to others and he agreed that the applicant had no family to support her. He also agreed to the fact that the applicant lacked insight into her surroundings whilst she was employed at the District office.
34. Ms Desiree van der Vyver testified as follows under oath in her evidence in chief: She is the Chief Occupational Therapist and Head of Occupational Therapy at George Provincial Hospital with 20 years’ service in the Psychiatric Unit. She had also worked in other departments and shared responsibility with paediatrics and psychiatry. The applicant was one of her patients in the Psychiatry Department. The applicant became her patient when she was discharged from Valkenberg Hospital as an out patient to George Hospital, living in Mossel Bay. Dr Scholtz was the Psychiatrist at that stage at George Hospital. She and Dr Scholtz interviewed the applicant and she recommended that they do a functional work evaluation for the applicant, which was agreed and arranged. They wanted to do a functional work evaluation for the applicant because the Occupational Therapist at Valkenberg in her e-mail to them had indicated she was concerned that the applicant’s insight into the severity of her illness was not sufficient for her to understand that her actions could lead to disciplinary actions. The applicant at that stage herself felt she could do her work and they were concerned about the effect of the illness on her work. They were also so worried about the applicant that she might not understand why they wanted the work evaluation, whereafter they wrote a letter in which they explained to the applicant that the work evaluation was needed to establish the reasons why the respondent was unhappy since they had already got feedback from work that things were not going well. Dr Ori’s medical record of 4 May 2018 from Valkenberg in which Dr Ori had stated that the applicant remained with paranoid delusions and that the diagnosis for the applicant was changed from bipolar mood disorder to schizoaffective disorder indicated to them that all was not well. The personal contact with the applicant during interviews were also sending red flags that they needed to evaluate her more in depth because she had very limited insight that there was any problem in her behaviour at that stage. They also observed negative symptoms displayed by the applicant during the process of interviewing and she explained the meaning of the listed symptoms being blunted affect, slow psychomotor, yalogia, avolition and anheodonia. These negative symptoms were there since she got to know the applicant in May 2018 to around December 2018. After the applicant was re-evaluated on 29 May 2019 she did not recall seeing her again, with her last evaluation being on 29 May 2019. She noted that the applicant was charged and dismissed effective from 9 August 2018. She started treating the applicant round about May 2018 after she was discharged from Valkenberg and declared an out patient. She explained the difference between an in patient and and out patient. With psychiatric patients if they are unwilling to be admitted to a hospital they are admitted under the Mental Health Care Act, which is how most of their in patients are admitted if they do not come voluntarily to be admitted. If someone becomes an out patient the medical team feel that he or she is sufficiently stabilised to go home but still under continuing medical care. Valkenberg is a tertiary hospital and George is a secondary hospital hence one step down in the health hierarchy. She was referred to the applicant’s progressive disciplinary charges of 22 November 2017 and 18 January 2018 which related to failure to carry out a routine instruction without just or reasonable cause and absence from work without a valid reason or permission, as well as the charges which the applicant was dismissed for and the dates of the alleged transgressions, and was asked whether there was any assessment or contact with the applicant in February and June 2018. She responded by pointing out that the dates stated in the charge are also the same dates that the applicant was hospitalised and quite ill because the applicant’s first hospital admission to Mossel Bay was from 20 February 2018 whereafter she was transferred to George Hospital on 2 March 2018 since Mossel Bay is a District Hospital and they felt the applicant needed more intensive care and needed to be under the supervision of a Psychiatrist which they did not have on their staff establishment there. When the team realised she could not stabilise they referred her on 9 March 2018 to Groote Schuur, which was seven days later. She stayed at Valkenberg until 8 May 2018, which is a hospital stay there of almost two months, and was discharged home on 10 May 2018 in the care of her family. Quite a few of the dates mentioned in the charges coincided with the medical teams of three hospitals deciding that she is ill enough to be admitted. The applicant was not fully recovered when she was discharged home on 10 May 2018 since her psychotic symptoms and delusional thoughts were still in the forefront of her treatment until about December 2018. In their letter to the applicant, which was not available at the arbitration, they explained to the applicant that there were two options, with the first that she could go to Groote Schuur’s work evaluation unit but this required transport and accommodation which would be difficult for her, with the second the suggestion that she see a private Occupational Therapist in George under her medical aid. The applicant opted for the latter and consulted with Ms Michelle Jenkins in George. Reference was made to Ms Jenkins’s report of 3 September 2018 based on evaluations performed on 30 August 2018 and 3 September 2018, of which the explanation of the detail and tests performed on the applicant are not repeated here. She pointed out that once an Occupational Therapist has used a battery of tests that it made sense to make use of one or two of the same tests to establish if a patient has improved or not. Ms Jenkins’s finding from the BCAB (Bedside Cognitive Assessment Battery) was that the applicant’s concentration and visual and verbal memory was impaired. Those two components already would have a huge impact on her behaviour and the way she executed anything at work. Ms Jenkins had also observed that the applicant struggled with decision making and judgement because she had paranoid thinking and lack of insight into her medical condition. Part of the Occupational Therapist’s assessment is to get collateral from the workplace and Ms Jenkins contacted the respondent, who gave feedback that the applicant stopped visiting schools due to paranoid thoughts and was a risk to drive because she struggled with attention and sleepiness, which collateral from the workplace confirmed that there were problems. She referred to her own report contained in a letter of 29 May 2019 and explained its content. She had used two tests which Ms Jenkins had used since the others that Ms Jenkins had applied were not available at George as a secondary hospital. Her own observation and with interviewing was that the applicant had better insight now since the applicant’s direct words were when she asked her how the last few months were at work was that she was not OK and was dysfunctional. When she asked the applicant how she felt about continuing with work she said that her children needed her to be functional again but felt that her sense of responsibility towards her family drove her to attend work every day. She did not believe that the applicant was really able to do the work and felt at that stage that the applicant is not able to return to open labour market conditions. She felt it was better for a Psychiatrist to respond to whether there was something that happened in the applicant’s life or work which led to the applicant’s breakdown and served as perpetrating factors since a Psychiatrist can answer the question better as to what leads to mental illness. She referred to Dr B Boon’s report and would concur that stresses in private and work life can aggravate or sustain one’s mental illness. All that she could do was to testify to what Dr Boon wrote in her report in the Part D Statement of Attending Doctor annexed to the applicant’s application for ill-health retirement which Dr Boon signed on 20 June 2019, where Dr Boon wrote at item 3.11: However, the unfair dismissal for behaviour perpetrated whilst ill and the absent income/resolution of her ill-health retirement is placing tremendous strain on her with a high risk of relapse for acute illness, i e return of psychosis. She responded to the question on whether there was any stage before the applicant was charged that there was a request placed to her to supply the respondent with medical documents that firstly definitely during the period that the applicant was under in patient treatment and even the period thereafter she believed that the applicant was not able to make the best decision to her advantage to supply everybody with what they needed due to her lack of insight and the feeling that other people wanted her in hospital and not herself. Secondly, Occupational Therapists can only contact an employer if they get verbal or written permission from the patient, hence she was very specific about requesting permission from the applicant. She obtained permission the previous year from the applicant to contact the respondent hence there was e-mail correspondence between herself and Ms Beukes the applicant’s supervisor. The aim of that correspondence was to try and determine from Ms Beukes what was happening at work and Ms Beukes did clearly state her concerns and that is what motivated her to explain to the applicant that it was in her best interest to get the work evaluation. She could not disclose an Occupational Therapist’s report to an employer without the permission of the patient and she was not sure how Ms Jenkins’s report was disclosed. From the Mossel Bay, George and Valkenberg Hospital reports the applicant did not agree to be admitted and it was involuntarily admission in terms of the Mental Health Act, in which instance the patient does not pay for hospitalisation and treatment. The applicant was not initially misdiagnosed since in psychiatry it commences with a working diagnosis which may change with more exposure. In Dr Boon’s report of 20 June 2019 she had stated that the applicant’s first admission was in 2016 between April and May when the applicant was first diagnosed with bipolar mood disorder and later changed to the diagnosis of schizoaffective disorder. She responded to the question on whether the course of action taken by the respondent to discharge the applicant for misconduct was fair given that the applicant stayed four months in a mental institution, that it was her honest opinion that the respondent should have probably gone the route with the applicant of ill health if they were informed or knew that the applicant was ill, and not the route of dismissal, because there was enough evidence in August 2018 and again in May 2018 by two separate therapists that she was impaired and could not function at work in a very high demanding job.
35. Ms van der Vyver testified as follows under cross-examination: She believed that she could use Ms Jenkins’s findings or recommendations because they were of the same professionality type since she would understand the background and what Ms Jenkins meant in her report. She only used the MOCA and BCAB tests and her clinical observations for her report. She was not familiar with the other assessment tools that Ms Jenkins used because they were not available at George Hospital. She confirmed that the applicant’s score on MOCA had improved. It would however not prove that the applicant was fit to return to work. MOCA gave her a very quick look at the applicant’s cognitive health and how accurate she can work within 25 minutes more or less, whereafter she moved onto the BCAB which is more substantial and on which the applicant scored impaired. She did not see the applicant’s discharge report from Valkenberg but her Psychiatrist Dr Scholtz would have seen it. She use the e-mail that she received from the Occupational Therapist at Valkenberg before she assessed and treated the applicant. Dr Scholtz did inform her about the change in the applicant’s diagnosis. The BCAB more substantial test confirmed that the applicant was unable to work since the job of a Subject Advisor needed high cognitive functioning and a memory which was not impaired. She also explained the illness process which breaks down one’s cognitive ability every time the person became psychotic or depressed and causes the brain to become dysfunctional and the neurotransmitters will not function properly if left untreated. The applicant had some history of treatment and it popped up again in 2018. She was not aware of the applicant’s condition in 2015. Dr Boon must have got that history from Dr Henningh of the George Medi Clinic or Dr Ori from Valkenberg and sometimes the family volunteer the information and the applicant’s son may have told those doctors about the 2015 illness. She responded to the question on how to take the matter further if the applicant still denies she is ill that they have been trained to observe an illness process and understand what schizoaffective and bipolar means. They used their professional training background to remind themselves that even if their patient tells them she has no medical problem they had seen the contrary to it and the previous hospitalisation at Valkenberg which meant that something must be wrong, with the conclusion that there was a lack of insight, hence the applicant was in denial. The reason why it may have been difficult for the respondent to obtain the medical reports for the applicant is that when they write out a medical certificate in psychiatry the doctor will just state a medical condition rather than disclose an anxiety or psychological disorder as there is a general bias against mental illness, or the patient could be ashamed of a diagnosis of mental illness. She confirmed that her report came out on 29 May 2019 and that of Ms Jenkins on 3 September 2018, which was after the applicant was dismissed in August 2018. She responded to the question that the applicant’s transgressions came from November 2017 to February 2018 and that she only assessed the applicant in 2018 as to whether she could make a call from September 2018 to say that the applicant already had those conditions at the time that she could and referred to Dr Boon’s letter dated 19 June 2019 in which Dr Boon tried to summarise the applicant’s medical history. There was no doubt that the applicant had displayed active and acute symptoms from January 2018 which were probably aggravated by stress at work over a period whereby she could not cope any more. There was no information what happened to the applicant in 2014 and 2015 except for one voluntary admission to George MediClinic but three separate teams of medical doctors admitted this patient and she believed that the cognitive decline happened over a period and most probably started already late 2017. The respondent could not ask her but Dr Boon about the applicant’s earlier medical history. Although the applicant had transgressed between November 2017 and February 2018 which was prior to her admission for treatment at Mossel Bay Hospital on 20 February 2018, the applicant could have acted in that manner then due to her current condition since they as medical professionals knew that the nature of a bipolar or schizoaffective disorder followed a certain course. Mental illness does not happen overnight and from one week to another and follows a natural progression. If the arbitration wanted to understand if the applicant was already ill at that stage then they would have to look at the George MediClinic records to see how she presented then for the first time. In the absence of assessments during 2017 it could have been speculated that it could have been anything and that the applicant was not ill at the time but because she was under pressure and it led to something else. But the one thing that the respondent could not deny as an employer is that the applicant had negative symptoms as recorded by one or two medical professionals which she, Ms van der Vyver, started with and which negative symptoms played out at work, such as blunted actions where Ms Beukes alluded to that other workers in the office were struggling to communicate with the applicant, that she walked slowly, etcetera. She would agree that Ms Beukes and Ms Buitendach would not know what the nature of the applicant’s condition was in the absence of any medical report since they are not medically trained and identified the problem without being sure what they were dealing with. Even if there were no assessments done at the time between November 2017 and February 2018 the respondent should have noted the applicant’s sick leave record and realised that something was wrong and help needed to be found such as getting an Occupational Therapist involved. She would not agree that it would be difficult to make a call that the applicant was sick at the time in the absence of an assessment. Dr Ori of Valkenberg was probably the most qualified in that type of hospital to deal with the applicant. There was definitely already something up in 2015 therefore she believed that the applicant had a long standing process happening when she sought medical attention in 2015 and she probably stopped because she felt better but still not good enough for her to function in the type of post that she occupied. Because there was no absenteeism it did not mean the person was actually fine. The Occupational Therapist at Valkenberg could see the results of something that had been coming for quite a while which is why she was worried about the applicant and would not have contacted them at George Hospital. Psychiatric medicine took a while to work and it can be difficult to find the right pharmacology for an individual.
36. Ms van der Vyver testified as follows under re-examination: She was referred again to Ms Jenkins’s report in which it was stated that the respondent confirmed that the applicant’s vocational functioning started declining at the beginning of 2017 and asked what her impression of that was, to which she responded that the respondent did not notice the decline in 2016 since it was not stated. The period from 2014 when the applicant commenced service and 2015 and 2016 appeared to have been fine since the respondent did not state that there was a problem right from the start. All that she could deduct from that is that an illness process probably took hold of the applicant sometime in 2017 and limited her functioning at work. The condition had definitely existed before the applicant’s dismissal from at least January 2018 as stated by Dr Boon in her summary. At the time of writing their reports the applicant was not capable to work in the open labour market and she shared Dr Boon’s opinion that the respondent should have gone the route of ill health and not termination of employment and that the wrong form was probably completed by Dr Boon, so there may have been miscommunication on exactly what form the respondent wanted. It was not misconduct since the applicant was ill and could not function at work.
37. Dr Rasmita Ori, Senior Clinician at General Psychiatry of Valkenberg Hospital, testified as follows under oath in her evidence in chief Via WhatsApp video and voice calls and telephone from Cape Town: She was referred to the report that she issued for the applicant from Valkenberg Hospital. She confirmed the primary discharge diagnosis for the applicant as shizoaffective disorder, unspecified, that the applicant was admitted on 9 March 2018 and discharged on 4 May 2018, although the applicant was not discharged per se but was transferred from Valkenberg back to George Hospital on 4 May 2018 under the Mental Health Care Act. The applicant was still under involuntary admission to Valkenberg Hospital and it was up to George Hospital to discharge her. She had stated in her report that the applicant was previously known to Dr Henningh the private Psychiatrist who treated the applicant in 2016 at the George Neuro Clinic. Dr Henningh had diagnosed the applicant with bipolar mood disorder at the time. The applicant was subsequently referred to George Hospital with a progressive history of deterioration claiming that Ms Beukes was stealing from her and that the telephones at work were being hacked and tapped. The patient had initially herself admitted that she was treated by Dr Henningh at the Neuro Clinic and Dr Henningh responded in writing to confirm this. Her team also investigated and confirmed this. Dr Henningh had provided the first diagnosis of bipolar mood disorder and the second differential diagnosis of schizoaffective disorder, which was their final diagnosis at Valkenberg. They do not rely on what was previously diagnosed when a patient is admitted but do their own investigation into the applicant’s mental state in order to arrive at a diagnosis. They will consider other parties such as previous doctors, other health care practitioners and also the family to obtain the patient’s history. The history comes from numerous sources, the first from the applicant’s son Siseko Alexander Mapisa, the second from the applicant’s supervisor Ms Beukes and the third from George Hospital which had recorded the same information as they had. She described what the applicant looked like when she arrived from George Hospital and that she was dishevelled and her self care was impaired. The applicant’s engagement with hospital staff was hostile and irritable since she did not believe that she should be in hospital, etcetera. She explained what the medical term “blunt” meant. Part of the medical examination is the assessment of one’s thoughts, how they are put together and whether they are coherent or not. The contents of thoughts are regarded as paranoid or persecuting delusions. The applicant did not believe that she could use a computer and could not continue working at her job since the computer was hacked and a network of people were conspiring against her and had hacked into her computer and telephone, which they since found that this information was delusional. The applicant had extended this delusional thinking to that Ms Beukes had taken photographs of her in her house while naked and distributed these to other colleagues and employees and that Ms Beukes had hacked into this equipment, which was highly implausible and then termed delusional. She also explained the other terminology used such as “insight”. The applicant was difficult to manage in the ward as she refused to have blood drawn, was hostile to have her brain scanned and refused to participate in the therapeutic programme. It was only at the end of the applicant’s time with them at 4 May 2018 that there were improvements that occurred which allowed her in clinical judgement to transfer the applicant to George Hospital. The applicant had appealed against her involuntary admission in terms of the Mental Health Care Act which allows for the right of appeal if the admission was an unlawful process. The applicant’s appeal went to the Mental Health Review Board and the applicant was given the opportunity to have legal representation. The applicant showed poor insight and believed that she could only represent herself. The Board’s finding was that the applicant was still not well and that there were grounds for involuntary admission and recommended that the applicant’s financial status and employment should be protected. It was not within her ambit to address the applicant’s employment issues, but for the Occupational Therapist based on an independent assessment made between her and the employer. She explained that schizoaffective disorder is primarily a psychotic disorder with mood symptoms, whereas bipolar mood disorder does not include psychotic symptoms. The schizo part relates to impaired reality testing and in addition psychosis includes disorganised behaviour, disorganised thought and perceptual disturbances. The affective part is the presence of mood features which co-occur with mood symptoms. There can be a schizoaffective disorder bipolar and depressive subtype. Bi means two, polar means opposite. According to Dr Henningh’s records the mood features were more prominent than psychotic symptoms for the applicant at the time. When the applicant presented at Valkenberg the psychotic symptoms were at the forefront, so the ultimate diagnosis was psychosis primary with mood secondary. The illness was of a progressive nature and did not change. A psychiatric diagnosis may evolve as the illness evolves. She was referred to the charges that the applicant were dismissed for and she confirmed that the dates referred to in the charges were before the applicant was admitted for treatment. She responded as follows to the question on whether there was a link between the conduct that the applicant was charged for and the diagnosis at Valkenberg: The applicant was first admitted to Mossel Bay Hospital on 22 February 2018 and the reason stated by the applicant’s son was that he felt his mother was ill, that she felt everyone was against her and was refusing medication. This was 6 days after the last date referred to in the charges. If someone refuses to do something it does not mean that it’s due to mental illness. It is possible that the propensity of not wanting to cooperate could be driven by the symptoms of the applicant’s illness. Although the reason for the refusal was not stated on the charge sheet, the son’s testimony that his mother was unwell over this period coincides with the time the charges were made between 6 and 16 February 2018 when the applicant said everybody were against her and she would not use her cell and computer as she believed they were hacked and would not attend meetings since Ms Beukes had taken photographs of her and she felt people were laughing behind her back and as a result she stated she no longer wanted to attend meetings and that there was a conspiracy against her. These symptoms were also noted in 2016 when the patient saw Dr Henningh at George Neuro Clinic where Dr Henningh had recorded that the applicant had difficulty driving the government vehicle and needed to apply brake fluid onto her hands before she drove the vehicle in 2016. In 2018 when she was seen at Valkenberg the applicant felt she was followed and there was a conspiracy against her and she would not get into the government vehicle, with impaired judgement. Under the circumstances it is possible that the misconduct was due to mental illness. She responded as follows to the respondent’s version which would be put to her that they were waiting for medical reports and treating institutions which the specialists and treating doctors could not produce and in the absence of medical evidence the respondent had no other option but to charge the applicant for misconduct: The hospital had firstly direct contact with the respondent via their Occupational Therapist throughout the admission so the respondent was made aware by the hospital and team that the applicant was admitted to hospital as an involuntary patient. Whilst they did not divulge the diagnosis the respondent was aware that the applicant was hospitalised over a 2 month period via e-mail correspondence. When the collateral was received from Ms Beukes she out of her own stated that the applicant may have schizophrenia, which indicated the respondent’s awareness that maybe something was not well. When she left Valkenberg the applicant was provided with a sick note for the respondent which included the dates admitted and transferred and was also given a copy of the discharge summary to give to the respondent. It was difficult to link the latecoming in charge 5 with the applicant’s medical condition because it merely stated that she was late for work which could not be solely attributed to her mental condition. In itself latecoming and not reporting to her supervisor cannot be linked to any mental disorder but the applicant had felt that her supervisor was conspiring against her so in that light it can be assumed why she did not report to the supervisor and it is possible based on delusional thinking that she did not want to notify the supervisor of her whereabouts. With reference to the last charge of absenting herself from work without the authorisation of her supervisor she was a bit confused since in her documented notes on 15 March 2018 at 14h30 to 15h10 the afternoon a documented telephone contact with Ms Beukes was made via the Occupational Therapist in her team who had a conversation with Ms Beukes looking for what the applicant did at work and notifying her that the applicant was in hospital and will probably remain there for a while. In that conversation Ms Beukes agreed to ongoing communication and contact with the respondent’s Human Resources Department and on 2 May 2018 a follow up e-mail was sent to Ms Beukes from their Occupational Therapist to inform that they had not received the documents required for the applicant from the HR Department, which had not been received when the applicant was transferred to George Hospital. The respondent was aware during the period from 15 March to 25 May 2018 that the applicant was in hospital from 9 March 2018 until 4 May 2018, which is why she was confused about this charge. She respondent to the statement that they felt that Valkenberg Hospital had derelicted their duty to report to other stakeholders about the applicant’s whereabouts and that there were no reports to clarify her whereabouts, which is why the respondent decided to go ahead and charge the applicant, that it was erroneous of the respondent to assume information as any request must have the permission of the patient, or requested on the letterhead of the respondent with the consent of the applicant, of which the respondent was informed, therefore she could not comment on dereliction of duty. She was referred to the notices of the applicant’s two prior progressive disciplinary meetings of 22 November 2017 and 18 January 2018 and whether they would trigger the applicant’s condition. She could not state with confidence that the applicant became ill because of these notices and that they could have been stressors to worsen her existing mental state.
38. Dr Ori testified as follows under cross-examination: She saw the applicant when she was admitted, at the Review Board hearing and when she was transferred to George Hospital. She personally assessed the applicant at intervals during the applicant’s stay there since she managed a team of up to ten members, which included Senior Doctors who also treated the applicant. Ms Sity the Occupational Therapist was part of the team. She responded to the question on whether the applicant was unfit for duty from November 2017 until February 2018 that she saw the applicant for the first time at Valkenberg and could not make any assessment on mental illness or ability to carry out her job description prior to that. She responded to the statement that there was no medical evidence prior to their assessment and that their and the other Specialists’ assessments of the applicant were after the fact and the transgression, that the applicant was at George Neuro Clinic in 2016 under the the care of Dr Henningh who had already provided diagnoses of the applicant’s condition at the time, on which only Dr Henningh and Dr Swanepoel could comment on the applicant’s condition prior to that. As to whether it was unfair for the respondent to charge the applicant in the absence of medical certificates and reports prior to her transgressions, whomever employed the applicant must have believed that she could do the job, but it was reasonable to assume that the applicant was unwell based on the severity of symptoms, although one could not tell if the transgressions happened solely due to mental illness. The applicant was mentally unwell during for the period from 6 to 19 February 2018 as reported by her son and the collateral information from the family. One did not get certified on 21 February 2018 if you were completely well on 19 February 2018. The duration of the applicant being unwell could at least have been from February 2018 based on collateral evidence. Despite the e-mail communications with Ms Beukes in March 2018 no documents were sent to the Hospital from the respondent for the applicant such as the leave form. The annexure for completion was only sent by Ms Beukes on 3 May 2018 whilst the applicant was transferred to George Hospital on 4 May 2018 when it was the responsibility of the receiving Doctor to complete Annexure B, which is why it was completed by Dr Boon since it it made no legal sense for Valkenberg to complete the form since the applicant was already transferred to George Hospital to continue with her care. In terms of the legal process an employer has no right to confidential information from her, but it was the patient’s responsibility to hand the documents to the employer, with every patient having the responsibility to inform the employer of hospitalisation. The information will ony be provided by the patient agreeing to apply for temporary incapacity leave. She referred to the letter from Ms Sity of 11 April 2018 which was issued to the respondent for the applicant confirming the applicant’s admission at Valkenberg. If the respondent was not satisfied with that letter and that it was not a medical certificate the respondent could have requested any other documents as stated in the letter. Ms Sity made contact with Ms Beukes on 2 May 2018 and Ms Beukes only sent the information two days before the applicant was transferred to George and it was for Dr Boon to get consent from the patient to complete the documents. Sick notes could have been processed for the applicant since they had informed the respondent that the applicant was in hospital, and had provided the applicant with a sick note and medical report. Any employee can report sick leave without disclosing a diagnosis. It was unreasonable to expect a psychotic patient to inform the employer of sick leave, which is why they informed the respondent. The respondent was aware that the applicant was in hospital for that period when she could not contact the respondent herself.
39. There was no re-examination of this witness.
CLOSING ARGUMENT
40. Written closing arguments were submitted by both parties to the ELRC and forwarded to the Panelist by the agreed due dates. These closing arguments are not repeated here for the sake of brevity, but have been taken into account in arriving at the award.
ANALYSIS OF EVIDENCE AND ARGUMENT
41. I am required to determine, on the balance of probabilities and in the circumstances of this case, whether the dismissal of the applicant, Ms N Mapisa, by the respondent, the Department of Education - Western Cape, for alleged misconduct was fair on procedural and subantive grounds and to grant the appropriate relief if unfairness is found.
42. In arriving at my findings I am firstly mindful of the charges which were brought against the applicant, of which the applicant was found guilty of in her absence at the disciplinary hearing rescheduled from 21 June 2018 to 7 August 2018, which are repeated here for ease of reference:
CHARGE 1
It is alleged that you are guilty of misconduct in terms of section 18(1)(i) of the Employment of Educators Act, 76 of 1998 (hereinafter referred to as the Act), in that on or about 2 February 2018 you failed to carry out a lawful order or routine instruction without just or reasonable cause, by refusing to attend a component meeting at the Eden & Central Karoo Education District Office.
CHARGE 2
It is alleged that you are guilty of misconduct in terms of section 18(1)(i) of the Act, in that on or about 06 February 2018 you failed to carry out a lawful order or routine instruction without just or reasonable cause, by refusing to meet with Mrs M Beukes, Head of Curriculum employed at the Eden & Central Karoo Education District Office.
CHARGE 3
It is alleged that you are guilty of misconduct in terms of section 18(1)(i) of the Act, in that you failed to carry out a lawful order or routine instruction without just or reasonable cause, by refusing to attend grade 12 standard settings meeting at the Eden & Central Karoo Education District Office on the following dates:
a) 05 February 2018; and/or
b) 06 February 2018; and/or
c) 07 February 2018; and/or
d) 08 February 2018; and/or
e) 12 February 2018; and/or
f) 13 February 2018.
CHARGE 4
It is alleged that you are guilty of misconduct in terms of section 18 (1)(i) of the Act, in that you failed to carry out a lawful order or routine instruction without just or reasonable cause, by failing to submit weekly plans to Mrs Beukes, Head of Curriculum at the Eden & Central Karoo District Office for the period 02 February 2018 until 16 February 2018.
CHARGE 5
It is alleged that you are guilty of misconduct in terms of section 18(1)(j) of the Act, in that you absented yourself from Eden & Central Karoo Education District Office, by reporting late for duty on the following dates, without notifying your supervisor:
Date Time
05 February 2018 08h00
06 February 2018 08h00
07 February 2018 08h20
08 February 2018 08h15
09 February 2018 08h30
12 February 2018 08h35
13 February 2018 09h00
14 February 2018 08h15
15 February 2018 08h25
16 February 2018 07h50
28 May 2018 07h50
CHARGE 6
It is alleged that you are guilty of misconduct in terms of section 18(1)(j) of the Act, in that you absented yourself from the Eden & Central Karoo Education District, without authorization of your supervisor, on the following days:
a) 19-20 February 2018; and/or
b) 02 March 2018; and/or
c) 05-09 March 2018; and/or
d) 12 -16 March 2018; and/or
e) 19-20 March 2018; and/or
f) 22-23 March 2018; and/or
g) 26-29 March 2018; and/or
h) 03-06 April 2018; and/or
i) 09-13 April 2018; and/or
j) 16-20 April 2018; and/or
k) 23-26 April 2018; and/or
l) 30 April 2018; and/or
m) 02-04 May 2018; and/or
n) 07-11 May 2018; and/or
o) 14-18 May 2018; and/or
p) 21-25 May 2018.
43. In arriving at my findings and the award I am also mindful of the prescripts of the relevant legislation, being Sections 18(1)(i) and (j) of the Employment of Educators Act 76 of 1998 as amended (the EEA) under Chapter 5 Incapacity and Misconduct relating to misconduct, as well as the procedures to be followed in terms of Sections 18(2) and the range of sanctions that can be imposed in terms of Section 18(3) if a finding is made that an Educator had committed the misconduct contemplated in Section 18(1):
18. (1) Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she –
(i) fails to carry out a lawful order or routine instruction without just or reasonable cause;
(j) absents himself or herself from work without a valid reason or permission;
18. (2) If it is alleged that an educator committed misconduct as contemplated in subsection (1), the employer must institute disciplinary proceedings in accordance with the disciplinary code and procedures contained in Schedule 2.
18. (3) If, after having followed the procedures contemplated in subsection (2), a finding is made that the educator committed misconduct as contemplated in subsection (1), the employer may, in accordance with the disciplinary code and procedures contained in Schedule 2, impose a sanction of –
(a) counselling;
(b) a verbal warning;
(c) a written warning;
(d) a final written warning;
(e) a fine not exceeding one months’s salary;
(f) suspension without pay for a period not exceeding three months;
(g) demotion;
(h) a combination of the sanctions referred to in paragraphs (1) to (f); or
(i) dismissal, if the nature or extent of the misconduct warrants dismissal.
44. Of relevance too with respect to the charge of unauthorised absence brought against the applicant is Section 14 of the EEA relating to that Educators appointed in a permanent capacity can be deemed to be discharged from service for misconduct if, as at subsection (1) paragraph (a), the Educator is absent from work for a period exceeding 14 consecutive days without permission of the employer, which discharge will take effect from the day following immediately after the last day on which the educator was present at work. Subsection (2) is also relevant in the circumstances of this case, which is provided in full hereunder:
(2) If an educator who is deemed to have been discharged under paragraph (a) or (b) of subsection (1) at any time reports for duty, the employer may, on good cause shown and notwithstanding anything to the contrary contained in this Act, approve the re-instatement of the educator in the educator’s former post on such conditions relating to the period of the educator’s absence from duty or otherwise as the employer may determine.
45. In the context of this matter I must also consider the prescripts of Sections 11 and 12 of the EEA relating to the discharge of Educators and discharge on account of ill health respectively, of which extracts of the relevant paragraphs read as follows:
11 (1) The employer may, having due regard to the applicable provisions of the Labour Relations Act, discharge an educator from service-
(a) on account of continuous ill-health;
(d) on account of unfitness for the duties attached to the educator’s post or incapacity to carry out those duties efficiently;
(e) on account of misconduct;
12 An educator may be discharged on account of ill-health in the circumstances referred to in Schedule 1.
46. Schedule 1 of the EEA at item 3 Incapacity Code and Procedures in Respect of Ill Health or Injury outlines the procedures to be followed in respect of ill heath or injury, which would have applied if the respondent was of the view that the applicant was not performing in accordance with her post requirements as a result of poor health, had initiated an investigation into the extent of her ill health and had requested the medical examinations and medical reports to establish whether the nature of her ill health was of a temporary or permanent nature and had considered the alternatives to termination of service in terms of subitem 6 if the ill health was of a permanent nature, which it was common cause was not the route taken by the respondent in the applicant’s case but instead that of misconduct in terms of Section 18 of the EEA.
47. Finally, the best interests of the child remain paramount as held by the Constitutional Court in Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BCLR 761 (CC) that Section 28(2) of the Constitution of the Republic of South Africa imposes an obligation on all those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions. This consequently also binds Arbitrators in a forum such as this to give consideration to the effect their decisions will have on children’s lives, and learners collectively, when they decide on the fairness or otherwise of the dismissal of an Educator and even if unfairness is found, that an Educator should not be re-instated or re-employed if this will have a detrimental effect on the well-being and safety of learners.
48. I also refer again to the facts which were established and agreed as being in dispute at the commencement of the arbitration, being as follows:
• Whether the applicant was booked off sick prior to February 2018 from 2016 when the bipolar type disorder was already diagnosed.
• Whether the applicant had informed the respondent of her other absences during the period February 2018 to May 2018.
• What the reason was why the applicant was absent at the rescheduled hearing of 7 August 2018.
• Whether the respondent was required to inform NAPTOSA of the disciplinary action instituted against the applicant.
• Whether the respondent had followed the guidelines in Schedule 8 items 10 to 11 of the Code of Good Practice: Dismissal of the LRA in dismissing the applicant for ill health incapacity as opposed to misconduct.
• Whether the respondent had attempted to obtain medical reports from the practitioners who had treated the applicant but was unsuccessful in achieving this.
• Whether the medical evidence which was supplied to the respondent was only produced after the applicant’s dismissal.
• Whether the applicant’s dismissal was fair based on both procedural and substantive grounds.
49. Based on the facts established as common cause and the evidence presented during the arbitration clarity was obtained regarding most of the disputed issues, with the main disputed facts remaining as to whether the respondent was entitled to fairly institute disciplinary action against the applicant for alleged misconduct in the absence of the medical evidence that they requested from the specialists and institutions which had treated the applicant, and whether the applicant was at the time of the alleged transgressions already suffering from the medical condition of which the official diagnoses were only made available after her dismissal, and that this condition would have attributed to her conduct at the time when the transgressions were committed, and which then could be regarded as extenuating or mitigating factors which had contributed to or caused her misconduct. It should be pointed that I am not empowered in these proceedings to change the nature of the dismissal from that of alleged misconduct to that of incapacity due to ill health, but to establish whether a fair dismissal had taken place for alleged misconduct on both procedural and substantive grounds.
50. It must be stated that all parties, including myself, as laypersons, had observed that the applicant did not appear to be functioning as one would expect a normal person to function during the duration of the arbitration and that something was wrong, with her displaying some of the symptoms that the expert witnesses had testified to, and that it was apparent that the applicant still at the time of the arbitration had an underlying and serious medical condition. In the circumstances the applicant was not requested to testify in person by NAPTOSA in these proceedings.
The respondent’s evidence
51. Ms C Buitendach the applicant’s direct supervisor and line manager as FET (Further Education and Training) Coordinator at the Eden and Central Karoo Education District Office (ECKED) and Ms M Beukes, the Head Curriculum Support for ECKED the applicant’s next level of management at ECKED where she was employed as History Subject Advisor, testified to the problems that they had experienced with the applicant in terms of her attitude and conduct since November 2017 until February 2018, the periods during which the applicant had been progressively and formally disciplined prior to her disciplinary hearing and when the sanction of dismissal was handed down on 9 August 2018, which dismissal was upheld on appeal by the Provincial Member of the Executive Council (MEC) for Education on 26 November 2018 after an appeal was lodged by NAPTOSA on behalf of the applicant on 27 September 2018. Ms Beukes also testified to her concerns surrounding the applicant’s situation and the efforts that were made by the respondent to locate the applicant and to obtain the medical reports from the various institutions who treated the applicant to substantiate her medical condition and the necessary documentation to support the applicant’s absence from work on medical grounds, in particular for the period when when she was hospitalised at Valkenberg Hospital in Cape Town.
The applicant’s evidence
52. It was noted that the applicant did not testify in person since it was apparent to all present in the course of the arbitration that she was not functioning in a normal capacity, as already stated.
The expert medical witnesses Ms D van der Vyver as Chief Occupational Therapist at George Provincial Hospital and Dr R Ori as Senior Clinician at General Psychiatry of Valkenberg Hospital in Cape Town, who had both treated the applicant over different periods, being for Ms van der Vyver from May 2018 after the applicant was transferred from Valkenberg to George Hospital as an out patient to 29 May 2018 when she conducted the last evaluation for the applicant, and for Dr Ori from 9 March 2018 when the applicant was admitted to Valkenberg Hospital until her discharge/transfer to George Hospital on 4 May 2018, confirmed that the applicant had suffered from a medical condition, first diagnosed in 2016 as bipolar mood disorder by Dr Henningh of the George Neuro Clinc and later as schizoaffective disorder bipolar type. Their evidence was also that, based on their own assessments of the applicant and the collateral evidence that they had acquired of the applicant’s medical history, that this mental illness was of a longer standing nature and could have contributed to the erratic and unreasonable behaviour which the applicant had displayed from around end 2017 up to February 2018, and beyond, since mental illness followed a progressive course and did not present itself overnight. They both confirmed that they were unable to provide confidential information of the applicant’s official diagnoses to the respondent without the applicant’s consent, and it was only when this was obtained that they could issue their respective reports dated 29 May 2019 for Ms van der Vyver and 4 May 2018 for Dr Ori. Although the two other health professionals who assessed and treated the applicant did not testify at the arbitration, Ms van der Vyver confirmed the reports and correspondence of Ms M Jenkins the private Occupational Therapist dated 3 September 2018 and that of Dr B Boon the applicant’s treating Psychiatrist at George Hospital of 20 June 2019 in the Part D statement by the attending doctor for the applicant’s ill-health early retirement application of 13 June 2019, as well as Dr Boon’s letter to the respondent of 19 June 2019. Their opinion, in short, was that the respondent had sufficient information at hand during the period which the respondent alleged the applicant had transgressed and prior to obtaining the official medical diagnoses and reports, to realise that there was something seriously wrong with the applicant and that they should not have pursued the misconduct route with the applicant.
53. Mr Jacobs, presently Head of SLES (Specialised Learner and and Education Support) at ECKED, who was also previously as registered as an Educational Psychologist with the respondent and served as NAPTOSA Shop Steward in the past, in his testimony in essence confirmed what Ms Beukes had testified to regarding how the applicant’s behavior had presented itself in the workplace and had deteriorated over a period of time, and was sympathetic to Ms Beukes’s efforts to assist the applicant and to obtain the documentation required by the respondent in order to avoid disciplinary action being taken against the applicant and for the applicant to be discharged due to non-compliance in terms of Section 14 of the EEA. He was also of the opinion that the respondent should not have followed the misconduct but rather the ill health discharge route as provided for in the EEA.
FINDING
54. I have considered all the evidence and argument, but because section 138(7) of the LRA requires brief reasons, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute. The following is accordingly found, on the balance of probabilities and in the circumstances of this case:
55. The charges which were brought against the applicant in the disciplinary hearing notice of 13 June 2018 and their findings will be dealt with separately, as follows:
56. With respect to the first charge of the applicant refusing to attend a component meeting at ECKED on 2 February 2018, it was not disputed that the applicant did not attend that meeting.
57. With respect to the second charge of the applicant refusing to meet with Ms M Beukes on 6 February 2018, it was also not disputed that the applicant refused to meet with Ms Beukes on that date.
58. With respect to the third charge of the applicant refusing to attend grade 12 standard settings meetings during the period from 5 to 13 February 2018, it was also not disputed that the applicant refused to attend those meetings.
59. Similarly, with respect to the fourth charge, it was not disputed that the applicant failed to submit weekly plans to Ms Beukes for the period 2 to 16 February 2018.
60. With respect to the fifth charge of reporting late for the duty for the period from 5 to 16 February 2018 and on 28 May 2018 without notifying her supervisor, it was not disputed that the applicant reported late for duty without notifying her supervisor.
61. Finally, with respect to the sixth charge of the applicant absenting herself from duty for the periods identified in that charge without the authorisation of her supervisor, it was also not disputed that the applicant did not in person notify her supervisor of her absences on those dates and did not obtain the required authorisation for these absences.
62. On the face of it the applicant would therefore be guilty of all the charges brought against her pertaining to insubordination and unauthorised latecoming and absenteeism, but the reasons for such conduct and the mitigating circumstances highlighted in the evidence of the medical professionals who testified at the arbitration, as well as the subsequent medical reports submitted after the sanction of dismissal was handed down on 9 August 2018, put a different complexion on the underlying causes for the conduct displayed by the applicant.
63. The evidence supported that Ms Beukes was under pressure to and genuinely tried to assist the applicant in complying with the respondent’s requirements, in particular to obtain the leave application forms and medical reports with relevant diagnoses from the institutions who treated the applicant, in order to prevent disciplinary action being taken against her, as well as the serious consequence that the applicant’s services could be summarily terminated under the deemed provisions of Section 14 of the EEA.
64. Both Ms van Eeden and Dr Ori had testified that the applicant was not in any mental condition to comply with the respondent’s requirements as would be expected from a normal employee who was not suffering from mental impairment and that the respondent, at least through Ms Beukes, was aware that the applicant was admitted at Valkenberg Hospital during March 2018 when their Occupational Therapist Ms Sity contacted the respondent for the collateral work information. The applicant’s whereabouts was therefore known by the respondent, although the documentation required in terms of the respondent’s policies was still lacking at that stage. The fact that the applicant’s admission for treatment was involuntary and that she was hospitalised for several months at Valkenberg Hospital must have been an indication to the respondent that there was something seriously wrong with the applicant at that time and before that too, as supported by the evidence of Ms van Eeden and Dr Ori that mental illness did not happen overnight but was a progressive process for the more severe and obvious symptoms to be displayed. The respondent did not dispute the testimony that the applicant was admitted to George Neuro Clinic in 2016 and that the respondent through Ms Beukes and Mr Jacobs was aware that the applicant was already undergoing psychiatric treatment at that stage. The respondent’s witnesses’ own evidence supported that they observed that there was something wrong with the applicant’s conduct and that it had deteriorated over a period of time. According to Dr Ori the delusions that the applicant experienced would have accounted for her persistent insubordination and refusal to cooperate with and communicate with Ms Beukes and her superiors. The applicant’s refusal to attend her disciplinary hearings and denial that there was something wrong with her should furthermore have been a red flag to the respondent that something was seriously the matter with the applicant and that her conduct may not be that of normal misconduct and wilful defiance on her part, but had an underlying deeper cause.
65. It was accepted that the institutions could not provide the respondent with the confidential medical information until the application for ill- health early retirement was instituted by the respondent during June 2019 and the applicant’s consent was obtained, and that in the absence of this information the respondent then proceeded to charge the applicant for misconduct as opposed to ill health. Section 14 of the EEA furthermore makes provision that an Educator appointed in a permanent capacity would be deemed to be discharged for being absent from work for a period exceeding 14 consecutive days without the permission of the employer and that this would also be grounds for discharging the applicant from service on account of misconduct. However, it must have been apparent at the time, even if the confidential medical reports were not yet forthcoming, that the applicant was incapable of obtaining this permission for her absence herself from the respondent, which is why Valkenberg Hospital notified the respondent that the applicant was admitted for psychiatric treatment. Mental illness does not present the same as a physical illness, for which a more flexible and tolerant approach would be expected.
66. Therefore, taking the foregoing and the probabilities into consideration, I find that although the applicant may have been guilty of the charges as articulated in the notice of the disciplinary hearing, there were persuasive mitigating circumstances that would have warranted a lesser sanction than dismissal or for another course of action to be pursued by the respondent to deal with the applicant’s conduct and condition, in particular after the applicant had taken the sanction of dismissal on appeal to the MEC.
67. It is noted that the admitted appeal documents submitted by NAPTOSA on behalf of the applicant on 27 September 2018 to the MEC included the Occupational Therapist’s report of Ms M Jenkins of 3 September 2018, a report dated 16 August 2018 from Dr Boon the Psychiatrist at George Hospital which reported provided the applicant’s medical history since 2015, and medical certificates from George Hospital dated 25 May 2018 and 3 July 2018. Although this information may not have been available at the time that the applicant’s disciplinary process was instituted and the disciplinary hearing was held in her absence on 7 August 2018, this information was placed before the MEC at the appeal stage. In their appeal NAPTOSA had requested that the outcome of the charges of misconduct be replaced with an ill health incapacity enquiry and the MEC, being the Minister of Education Western Cape, in her rejection of the appeal, had responded that she had noted that the applicant had never made reference to ill health or injury in her engagements with the respondent and that the ill health enquiry is a distinctly different approach to a misconduct procedure.
68. In my view there were however sufficient mitigating circumstances available at the time of the appeal that an ill health situation applied instead of misconduct and that the MEC would not have been remiss to set aside the sanction of dismissal or impose a lesser sanction for the dismissal related to misconduct, which could have opened the way for the ill health procedure in terms of Shedule 1 of the EEA to be instituted. In the circumstances I find the applicant’s dismissal unfair on substantive grounds.
69. Procedural unfairness was also alleged. The evidence supported that the respondent had applied a process of progressive discipline and had afforded all the rights to the applicant for representation and preparation for the disciplinary hearing on 21 June 2018, which was rescheduled to 7 August 2018 to accommodate the applicant, but was still not attended by her and consequently led to her dismissal when it was eventually heard in her absence. The view is supported that the respondent cannot be held responsible if an accused employee refuses to participate in disciplinary proceedings and chooses not to approach a trade union or fellow employee for assistance in the process, whatever the underlying reasons may be. The respondent also had no obligation to consult with the union(s) of which the applicant was a member at the time about the disciplinary action instituted against her, since this was not a procedural requirement in this case. I accordingly find that the applicant’s dismissal was fair on procedural grounds.
70. The applicant party had sought the relief of retrospective re-instatement if unfairness is found. Clarity was sought as to whether re-instatement or re-employment would be possible if the evidence was that the applicant was unfit to return to duty. The applicant party explained that they had requested retrospective re-instatement for the purpose of applying for ill health early retirement or an ill health discharge, but not for the applicant to resume normal duties. It was common cause that an ill-health early retirement application was instituted by the respondent and the application and supporting medical reports were already completed in June 2019. The respondent’s representative had explained that the application could not be processed since there was no longer an employment relationship between the respondent and the applicant and that this application was made after the applicant was dismissed and the sanction of dismissal was upheld by the MEC. The implication is therefore that the applicant would have to be re-instated so that an ill health discharge in terms of item 3 of Schedule 1 of the EEA could be instituted. In these circumstances re-instatement will be granted.
71. The practical effect and implementation of such a re-instatement should however require careful consideration, with the respondent having to apply its discretion as to the nature of the applicant’s re-instatement and on whether the applicant will be fit to resume normal duties, in the interest of the child and learners collectively.
72. Retrospective compensation or back pay was also requested. It was noted that from the applicant’s pay advice submitted by the respondent that she was was paid up to 31 August 2018. The applicant party had however confirmed that the applicant was paid on 15 November 2018 for the month of November 2018, when the dismissal was upheld on 26 November 2018 by the MEC.
73. It was submitted that the applicant and her family had suffered severe financial hardship since her dismissal, especially since she from a medical perspective was not regarded fit to perform and compete in the open labour market. Considering the challenges that both parties faced and the applicant’s lack of cooperation at the time due to her intervening medical condition, including the delay in obtaining the medical evidence and reports requested by the respondent, I am reluctant to grant retrospective compensation or back pay for the full period since the applicant’s date of dismissal until the date of her tendering her services to the respondent in terms of this arbitration award, which is almost a year, but will consider back pay of six months’ basic salary at R33629,50 per month totaling R201777,00 as just and equitable in the circumstances of this case to alleviate the hardship suffered by the applicant.
AWARD
74. The dismissal of the applicant, Ms N Mapisa, by the respondent, the Department of Education- Western Cape, on 26 November 2018 for alleged misconduct is found to be unfair on substantive grounds but fair on procedural grounds.
75. The respondent is ordered to re-instate the applicant effective from 27 November 2018 into its employ on the same terms and conditions of employment that governed the employment relationship immediately prior to her dismissal, or any other terms and conditions that are no less favourable.
76. The respondent is ordered to pay the applicant back pay of six months’ basic salary as earned at the time of her dismissal of R33629,50 per month totaling R201777,00, less statutory deductions, into her bank account by not later than 15 December 2019.
77. The applicant is ordered to tender her services to the respondent on 1 December 2019, unless required not to do so by the respondent, for the purpose of ill health incapacity procedures to be instituted for her in terms of Schedule 1 of the EEA.
Panelist: A C E Reynolds (Ms)