Case Number: ELRC138-20/21GP
Applicant: Ms. Nokuthula Patience Phiri
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Misconduct
Award Date: 1 December 2020
Arbitrator: Mathabo Makwela
Case Number: ELRC138-20/21GP
Commissioner: Mathabo Makwela
Date of Award: 01 December 2020
In the ARBITRATION between
Ms. Nokuthula Patience Phiri
Gauteng Department of Education – Free State
Union/Applicant’s representative: Ms. C Du Plessis
Respondent’s representative: Mr. B Khoza
Details of Parties and Representation
1. The arbitration proceedings were scheduled for 05 October 2020 & 07 November 2020 at Sedibeng TVET College, 37 Voortreeker Road, Vereeniging and through Zoom. The applicant was in attendance and was represented by Ms. Cindy Du Plessis, an admitted attorney, while the respondent was ;represented by Bongani Khoza, (an) also an admitted attorney. The respondent submitted a bundle of documents which was marked as Bundle R and was used as a common bundle of documents for these proceedings. The latter were digitally recorded and interpretation services were not required.
Background to the Dispute
2. The parties are Patience Nokuthula Phiri (the applicant) and Sedibeng TVET College (the respondent). The respondent is a tertiary educational institution. The applicant was employed by the respondent on 01 February 2019. As at the date of her dismissal on 16 July 2019, she occupied the position of Campus Manager and earned R34 000 per month. The applicant was dismissed for the following offences; that (i) on or around 07 November 2018 you used a college vehicle TBR640 GP without authorisation/ permission from your supervisor/ manager and (ii) on or around 16 November 2018 you prejudiced the administration, discipline and/or efficiency of Sedibeng TVET College, an institution of the State, in that you instructed Ms. Pule MM to write words to the effect that “ I had an appointment with my students because they were writing on the 8th November 2018 when Ms. Pule was not at work on 07 November 2018 and you further instructed Ms. Pule MM to sign a fraudulent report by you that she was at work wherein she agreed that she was at work on 07 November 2018 and that you took her to Heidelberg Hospital and later to her daughter’s place at 199 Fairview Drive, Roodepoort. She did not challenge the procedural fairness of her dismissal but its substantive fairness. She admitted to the abovementioned charges for which she was dismissed and contended that the sanction was too harsh and that the trust employment relationship had not irretrievably broken down.
3. The applicant contended that the sanction could have been a final written warning, or suspension without pay for two months or a demotion. However, demotion is no longer applicable as a sanction. The trust relationship has not broken down as she continued to work after charges were preferred against her; she received the outcome on 09 July 2019; lodged an appeal on 29 July 2019 and continued working until she received the outcome which she appealed. She also contended that she worked for more than a year without being suspended and was, on 30 August 2019, appointed by Dr. George Mothapo to be a member of the tender evaluation committee and on 24 October 2019 was appointed as a chief invigilator.
4. On the other hand, the respondent contended that the applicant’s appeal was lodged with the Minister. The applicant was not rendering services during the lockdown period and thus she did not work for a year. The respondent had preferred not to suspend the applicant as it believed that she would not interfere with witnesses. The applicant had taken a vehicle belonging to the respondent and went on a frolic of her own and the vehicle tracking system showed that the applicant had been to Alberton in Johannesburg and in Roodepoort while the respondent conducts its business in the Vaal. She was appointed to invigilate because students had to sit for examinations. The trust relationship between the applicant and the respondent had broken down. She was in a managerial position and had committed fraud. She had to be exemplary as a leader to her subordinates but had instead broken a rule and diminished the trust between herself and the respondent.
Issue/s to be Decided
5. The issue to be decided is whether the dismissal of the applicant was substantively fair in terms of sanction and whether the trust employment relationship had irretrievably broken down. The applicant sought relief in the form of reinstatement.
Survey of Parties’ Evidence and Arguments
The Respondent’s Case
Dr. George Mothapo (George)’s evidence under oath:
6. Dr Mothapo testified that he is the respondent’s principal and thus its accounting officer since 01 June 2018. The respondent’s various campuses are managed by Campus Managers in whom the respondent puts total trust. The Campus Managers are accounting officers at their respective campuses. Abusing the college’s assets destroys trust between an employee and the employer. The college is funded from public monies through tax and utilisation of state resources; if one goes on a frolic of her own amounts to abuse of state resources. The applicant had used the college vehicle outside of the Sedibeng district. While still outside Sedibeng district, Ms. Pule, a lecturer at the respondent and the applicant’s subordinate, had delivered the applicant’s sick note and leave application destined for Head Office.
7. He also testified that he had contacted the applicant and interviewed her on the matter. Pule was also called to clarify the leave application form because it was not in compliance with the rules. Pule stated that she was not at the college on the day that it was indicated that she was at the college and that she was not transported to Roodepoort on the day that it was alleged on the written explanation. She was used as a cover-up by the applicant and said that she was not sick or transported by the applicant. She did not read the letter that was typed by the applicant on her behalf and had merely signed it.
8. Dr Mothapo George further testified that for the charges that the applicant had pleaded guilty to, she could no longer be trusted and dismissal was an appropriate sanction. The applicant was not suspended because in their opinion she could not have interfered with the evidence. He could not implement the sanction because the appeal was lodged with the Minister, who is the employer of the applicant. He had acted in compliance with the policy in not suspending the applicant. As of 26 March 2020 the college was on lockdown. The applicant said that she refueled the college car but failed to produce proof thereof and did not apologize for her conduct.
Under cross-examination, Dr Mothapo George testified that:
9. He disagreed that the allegations of dishonesty implying untrustworthiness against the applicant had nothing to do with her duties because she was a manager who had committed fraud implicating her subordinate as well. The applicant continued to do her work and had keys to the entire campus and computer classes’ keys. The allegations did not affect the applicant’s ability to perform her tasks and the reasoning for not suspending her had nothing to do with her abilities but the policy. She had trust in her that she can perform her duties. She trusted that she will not interfere with the investigation and believed that she will not interfere in anything inclusive of finance. The employer-employee relationship must operate where one can depend on the other. Trust relationship depended on the misconduct leveled against her though he had trusted her to do her duties because she was paid for same. The applicant worked online during the lockdown. The applicant committed a serious offence and the fact that she was not suspended did not mean that the offence was less serious. She was not suspended because the appeal was with the Minister.
10. He also testified that he did not have authority over the applicant when the appeal was with the Minister. The applicant was the accounting officer and he was not aware of any complaints against her. He did not see any sign of remorse by the applicant despite the applicant pleading guilty. He denied chasing the applicant away when she came to explain the envelope but had told her there was going to be a disciplinary hearing against her. The misconduct was committed and automatically the trust relationship was broken. The applicant committed fraud and instead of showing remorse, she sought to cover up her misconduct.
The Applicant’s Case
Patience Nokuthula Phiri (the applicant)’s evidence under oath:
11. The applicant testified that she pleaded guilty to the allegations leveled against her for using the college vehicle without authorisation. She was allowed to use the college car for work purposes only and to buy food on her way home. On 07 November 2018 she had received a call to inform her that her cousin had passed on. She drove to 199 Fair Drive in Roodepoort using the college car to confirm if indeed her cousin had passed on. She returned to her residence at 20h00 on that evening.
12. In relation to the charge on providing false statement and covering it up, she testified that she covered up by saying that she had taken the colleague to a hospital. She was not comfortable enough, was sensitive and thinking of the family matter. She did not want to discuss the family issue at work as she wanted it to remain out of her workplace.
13. She also testified that Pule had typed the letter in question and she would not have done so if she was not dragged by her to do so. Pule volunteered to type the letter because she was with her when she received the news of the passing of her cousin. She takes full responsibility for Pule’s action.
14. The applicant further testified that she was never suspended, or disciplined in the past. She had campus keys giving her access to the whole campus including the safe. It was not true when George had said he could not work with her because she was never suspended. During the lockdown, she worked from home and had regular virtual meetings with staff until they returned to campus. She was the last signatory on PPE tender and dealt with staff salaries. She was also still trusted to deal with the car on campus.
15. Serobe was suspended for two months for misuse of college car. She currently stays in Heidelburg where she had recently bought property and a week prior to her termination, it was her house’s final registration. She has two daughters, one at Rhodes and another in Kansas City, USA. Her husband is not working and has suffered a stroke. She had wanted to confess to the principal on the following Monday but the principal did not want to listen to her. He informed her that disciplinary measures were to be taken against her. An appropriate sanction would have been a final written warning or suspension without pay. She is still willing to adhere to reasonable instruction from her employer. She feels very bad about covering up the misconduct. She has no source of income and feels that she has seriously disappointed her family.
Under cross-examination, the applicant testified that:
16. The applicant testified that she is an educator and the Act applies to her. Her act of covering up through her subordinate giving false statement led to the breakdown of the employment relationship. She agreed that an educator may be dismissed if found guilty of dishonesty and that giving a false statement amounts to an act of dishonesty. The Minister and principal are bound by legislation. She testified that a relative had passed on but did not provide proof because she did not want to drag family matters to her employer. She did not think of sending a text to the respondent that there was an emergency in the family. The respondent would have agreed if she had requested to attend a family emergency. George had allowed her to leave early when she had requested. George would have taken her call or returned it if he could not have initially answered it. George would have been more understanding if she had told him that she had a death in the family.
17. Despite alleging death in her family, being legally represented, she has not presented proof of death but went ahead to provide a false statement through her subordinate to cover up because union representative had the death certificate and had also passed on. The false statement by Pule was pre- planned. At that time she did not have proof that there was death in the family. She had submitted the death certificate to her union representative but not to the respondent. The person who passed away was not her close relative and she, therefore, did not take leave to attend the funeral but only went to the deceased home on that Friday. She did not present this defense at the hearing because the funeral programme and the death certificate where in the hands of the trade union representative. Though her representative had the said documents, he wanted to present them during mitigation. The representative being at the hearing could not submit those documents because they were with NEHAWU which could not assist her and thus she approached an attorney for assistance.
18. She has discussed the missing death certificate with her attorney. She will go and look for the death certificate at the department of home affairs. She had lied about a person being at the hospital and did not know why the respondent should believe her version. She did not know that a lodged appeal suspends the decision to dismiss. She did not know the owner of the property she had gone to but her cousin stayed there at the time of her passing. Serobe was not charged for dishonesty- falsification of records to mislead the employer and thus the circumstances were not the same.
Analysis of Parties’ Evidence and Arguments
19. The applicant had referred an alleged unfair dismissal dispute related to misconduct. Section 192 of the Labour Relations Act provides that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. If the existence of the dismissal is established, the employer must prove that the dismissal is fair. Item 2 (1) of the Code of Good Practice: Dismissal provides that a dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure, even if it complies with any notice period in a contract of employment or in legislation governing employment. It was common cause that the applicant was dismissed on 16 July 2019. There was no procedural fairness challenge to the applicant’s dismissal but only the substantive fairness aspect thereof.
20. The applicant challenged only the substantive fairness of her dismissal. In doing so, she admitted to the charges but contended that the sanction was too harsh and that the employment relationship has not broken down since she continued to work until she was dismissed on 16 July 2020 and was never suspended. I intend to deal with the latter part of her contention first.
21. It is not automatic that for any offence(s) leveled against an employee that the latter must be suspended. Suspension is reserved for cases where there are investigations and it is reasonably anticipated that the employee against whom the allegations are leveled will not interfere with witnesses or evidence. If an employer is of the view that having the employee at work will jeopardize the case, the employer can suspend such an employee and vice versa. In terms of the advice to appeal, the applicant’s attention was drawn to the fact that she should appeal to avoid the implementation of the sanction. She had appealed and thus the dismissal sanction was put in abeyance pending the decision of the Minister. It cannot, therefore, mean that when parties follow collective agreements whose provisions have the effect of having a dismissed employee to stay on at work despite a dismissal sanction arising from a disciplinary hearing and while awaiting the Minister’s decision that such provisions should work in favour of such employees in creating an impression that the employee continued working and thus that the employer continued to have trust in her.
22. The fact that the applicant was not suspended is not any sign that the relationship of trust existed between the parties. She was kept on because of the provisions of PSCBC Resolution 1 of 2003. She was not a threat to the evidence or witnesses. The respondent already knew that she had travelled to the places in question as per the tracker report. She could not have interfered with such evidence. She had connived with Ms Pule on the falsification of facts and thus there was nothing more that she could do in interfering with the evidence. Very early on in this matter, the respondent had the evidence that it needed. I, therefore, find that this contention that she was not suspended cannot be the basis upon which it is formulated that trust relationship continued to exist between the parties. Neither does it render the offences with she was charged as less serious.
23. PSCBC Resolution 1 of 2003 is a collective agreement between the State as an employer and the trade unions and must be accorded the respect it deserves. It cannot have been put in place mechanisms to ensure that processes drag and thus imply that there is an existing trust employment relationship as in cases like this one. In this regard, the seriousness of the offences and the circumstances of infringement must determine whether dismissal becomes an appropriate sanction or not. The applicant occupied a position of trust and had committed a serious offence in using the college vehicle without authorisation or permission from her supervisor. This is a serious transgression as it had the potential of causing financial loss to the college in the event that it could have been involved in an accident and the insurance company repudiating the claim for reasons of lack of authority for the vehicle to be driven in that area at that time. It is also an abuse of state resources.
24. In terms of her evidence, there was nothing that prevented the applicant from seeking permission to drive to the area in question. In her own testimony, Dr Mothapo George would have in all likelihood given her the permission. However, this is where the problem arises. The applicant knew that there was no valid reason for which she had to ask for permission to travel to that area and thus proceeded on her own without asking George. This further proves that the death of a cousin was a mere fabrication by the applicant. To the end of this arbitration, she has failed to produce the death certificate but instead always sought to hide behind deceased persons. If the trade union representative who represented her at the disciplinary hearing had the death certificate and the funeral programme, he would have submitted same to the chairperson. If that is not enough, she has failed to produce same in this arbitration. This is one fact from which trust can be derived. It will be unfair to expect the respondent to trust a manager who continuously lie to conceal her guilt. Even when she says she is remorseful, she continues to lie. This renders her alleged remorsefulness a sham.
25. In her letter of appeal, she stated that she realized that she had aggravated the situation by being dishonest in her explanation of the unauthorised use of the vehicle and in also involving a co-employee. However, in this arbitration an inference can be drawn that she persisted to lie about what happened on that day while on the other hand she stated that she is remorseful. A remorseful person does not continue to lie. Her act of dishonesty is so serious as to render the employment relationship irretrievably broken down. In her line of duty she is entrusted with the assets of the college. For a fact that she might not have done anything wrong during his disciplinary hearing and while waiting for a decision by the Minister does not mean that she can be trusted with the assets of the college. She may have lied low for purposes of this matter and/or may have committed an offence which is currently unknown or had been discovered. The trust issue in this regard emanated from the charges that she had committed and not how long she stayed and worked for the respondent pending the finalisation of her case.
26. Based on the aforegoing, I find that the dismissal of the applicant was substantively fair. She had committed serious offences and the sanction of dismissal is appropriate in the circumstances. The respondent cannot be expected to put up with a manager who continuously lie in the midst of having committed serious offences of unauthorised use of company vehicle, who brings subordinates in to falsify facts to conceal her guilt. A manager must lead by example and this is what the applicant had dismally failed to exhibit in this instance.
27. The dismissal of the applicant by the respondent was substantively fair.
28. The applicant’s claim for unfair dismissal is unsuccessful and the relief sought is denied.
Commissioner: Mathabo Makwela