Case Number: PSES312-19/20GP
Applicant: SADTU obo Masuku and Another
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Misconduct
Venue: Department of Education Gauteng East District Office
Award Date: 27 January 2021
Arbitrator: Eva Ngobeni
Commissioner: Eva Ngobeni
Case No: PSES312-19/20GP
Date of Award: 27 January 2020
In the Dispute between:
SADTU obo Masuku and Another
Department of Education (Gauteng East)
Union / Applicant’s representative: (Union official)
E-mail: email@example.com / firstname.lastname@example.org
Contact number: 082 387 0163
Respondent’s representative: Patrick Selowa
DETAILS OF HEARING AND REPRESENTATION
1. This matter was set down for arbitration on 27 January and 24 November 2020, 09h00 at the premises of Department of Education Gauteng East District Office. Both parties were in attendance and representation for all parties is as indicated above.
2. The Applicant submitted a bundle of documents marked bundle ‘’R’’ in support of its case. There was no bundle of documents submitted for or on behalf of the Respondent. The proceedings were electronically recorded and notes were also taken. Both parties agreed to submit written closing arguments, and such was filed with the Council on 30 November 2020.
BACKGROUND OF THE DISPUTE
3. The Applicants’ details of employment is as follows:
a) Zandile Masuku has been employed with the Respondent since from 01 January 2013 at Rivoni Secondary School. She occupies a position of an educator, Post Level 1 earning R25 619-72 per month.
b) Minikazi Jaftha has been employed with the Respondent since October 2003 at Rivoni Secondary School. She occupies a position of Head of Department, Post Level 2 earning R30 687-72 per month.
4. Both Applicants were charged in terms of Section 18 (1) (J), in that they absented themselves without permission and prejudiced the administration of the Respondent. As a result of the alleged misconduct, Ms. Masuku was fined an amount of R3 000, and Ms Jaftha an amount of R6 000 payable in three (3) months. Subsequently, the Applicants through their union filed a referral of an Unfair Labour Practice: disciplinary action, hence these proceedings.
ISSUE FOR DETERMINATION
5. I must determine whether the respondent committed an unfair labour practice: disciplinary action. If so unfair, I must determine the appropriate remedy.
SURVEY OF EVIDENCE AND ARGUMENTS
A summary of the applicant’s submissions is as follows:
6. MW Jaftha testified that she attended work on 23 April 2018. The excursion was held on 23 May 2018. She attended the excursion on the latter date with other colleagues. She should have been charged in terms of section 18 (1) (f) other than (g) of the Educators Act. Though not charged with subsection (f), she was found guilty in terms of the said subsection. The chairperson had made amendments to the charges during the proceedings. This proves that the Department did not understand the nature of the charge.
7. She is an elected branch executive member for Daveyton / Wadeville branch. The Respondent failed to consult the union prior to being summoned to a disciplinary enquiry. She attended the excursion after she was approached by the organizing team a day preceding the excursion. They informed her that the number of learners attending the excursion has increased. She was further told that the Principal gave permission for her to accompany learners. She agreed to attend the excursion because she is a Life Orientation educator and whenever there is an excursion, they ask for her assistance.
8. The organizing committee is the one to communicate with the Principal about the excursion. Therefore, they were the ones to approach them to accompany the committee to the excursion. On date of the excursion she ensured that her department was taken care of. She became part of the organizing team with Ms. Masuku. There was no class for her on the date in question because the learners in attendance of the excursion were in Grade 11 and 12. There were 70 learners approved by the district to go on an excursion but there was an additional 29 learners who were to attend. The Principal gave permission for the learners and extra educators to attend the excursion.
9. She is not aware of policy which governs issues pertaining to the excursions. The Principal was aware that they were to partake in the excursion because he informed them (her and Masuku) that there was a chaos and they should ensure that all relevant documentation is in order. Mabuza had informed the Principal that the other committee members were still young and he (Mabuza) attended an excursion as a driver. She was requested by the Principal to take apples for the learners. It is implied in the Principal’s request of her to ensure that there is proper documentation, to take apples, that permission was granted.
10. An appeal was filed with the Respondent on 15 April 2019. As at filing the dispute with the Council, there was no outcome from the Respondent. The sanction of a fine was effected without the Respondent considering the appeal. Under cross-examination she conceded that there was an error on the proof of service for the appeal as it reflects no date of filing. She argued that the email sent and it transmitted on 15 April 2019. When a version was put to her that document submitted as proof is authentic, she argued that it may happen that they printed the other one. She sought permission to supplement the document as prove it was not altered. She conceded that the fax sent to the Respondent for an appeal did not go through. On enquiring, she was informed that the fax is not operational.
11. When question on why she could not hand deliver the appeal; her response was that she was provided with details to use for service and nothing more. She did not compile the report on what happened at the excursion. Her permission to attend the excursion was not in writing because it was practice for the Principal to communicate such issues with the organizing team. At the disciplinary enquiry, the Principal conceded that he was aware that she was to secure transport, even though she was not part of the organizing team. She was also required to ensure that all documents are properly checked.
12. She argued to have not been instructed by the Principal to put learners in a class. There was no activity at the school because they have been preparing for mid-year exams. She acknowledged that the charge pertaining to the excursion to the 23 May 2019. The chairperson amended the date of occurrence to reflect 23 May 2019 at the disciplinary enquiry. A question was put to her on what date was she elected executive branch member; her response was that further details will be made available to the Respondent. She conceded that she was found guilty for a charge in terms of section 18 (1) (f).
13. Zandile Masuku testified that she is an office bearer as a site executive member. The excursion was held on 23 May 2019 and she was at work. The organizing team comprised of Ndlovu, Xaba and Mofume. There were 129 learners who attended the excursion. 75 learners were on a bus with Mofume and Xaba. There were three (3) taxis with 16 learners each and an Avanza which had an extra six (6) learners. She had permission to attend the excursion from the Principal through the organizing team.
14. There was an approval for 75 learners but 129 learners attended the excursion because they paid after the approval was sought. The Principal approved for the extra learners to go on an excursion. There is no excursion policy but the ratio to use is 1 is to 20. An appeal dismissal was filed with the Deputy Director and Panyaza Lesufi, although this was not required. The District Director acknowledged receipt of the appeal via email because the fax transmission did not go through. Ndlovu had informed them that there were extra learners to attend the excursion and he was from the Principal. He requested them accompany the team to an excursion. The report about the excursion was submitted after the assault.
15. Under cross-examination she conceded that she understood the charges against her. She does not know the difference between a charge sheet and a section of the Act. She had permission from the Principal through the organizing team. Whoever organizes a tour, has the responsibility to liaise with the Principal. She accepted from the organizers that permission was granted. The Principal should have mentioned that they should not go to the excursion. They went to the excursion with the learners and there was no problem. On their return to work, the Principal never questioned them but did so after the newspaper article.
16. She does not know the reason for which the report was not signed. She does not know why the document does not reflect the names of educators who attended the excursion. She does not know why there is no date indicated on the e-mail sent for an appeal.
17. Mabuza Desmond testified that he is the Head of Department for English. He worked for the Respondent since October 2015. The excursion was held on 23 May 2019. The excursion was organized by Mofume, Xaba and Ndlovu. Whenever there is an event at the school, there is a group of educators tasked to organize the event. The organizers are responsible to liaise with the Principal. An approval was given for 70 learners, and the number of learners increased to over 100. The organizers sought assistance from myself, Jafta and Masuku. Ndlovu stated that they were given permission to liaise with them.
18. Jafta was instructed to look for extra transport to accommodate the additional learners. He and Jafta were approached by the principal informing them that they should ensure that the transport secured has relevant documentation. The principal thanked Jafta for being part of the team and instructed them to make copies of certain things. When a version was put to him that the Principal would testify that he never gave permission; his response was that educators are not allowed to touch food for learners, the Principal gave Jafta permission to take apples for learners.
19. There was no meeting held prior to an excursion and there are no procedures to follow pertaining to an excursion. The Deputy Director approves the excursions by signing off. He was part of the educators called and informed that the learners were more than projected. The organizing team liaised directly with the principal. He took learners with his Avanza and dropped them off at the excursion.
20. Karabo Ndlovu testified that he is employed at Rivoni Secondary School since 2016. He was part of the organizing team, with the assistance of Jaftha and Masuku. He went to the office in the morning because there were extra learners to attend the excursions. The Principal informed them to go with Jaftha and Masuku to the excursion. Mabuza came along to speak to the Principal but he does not know what they were talking about.
21. Under cross-examination he stated that on date of the excursion, the organizing team engaged the Principal because there was a challenge with transport. Ms. Jaftha was tasked to assist with the arrangement of transport. He argued that the Principal knew that Jaftha and Masuku were assisting but not that they were to travel to the excursion. He officially spoke to the Principal in the morning and he agreed. There were three of them that engaged the Principal but most likely each on their own at different times. He argued that they may have spoken to the Principal in the morning or the day before.
22. As a team of organizers, they became aware of the additional learners a day preceding the excursions. He conceded that the decision to take Jafta and Masuku was without the approval of the District Director. He thought it was sufficient that he spoke to the Principal other than the Deputy Director. The Principal instructed Jafta to secure extra transport for the learners.
A summary of the respondent’s submissions is as follows:
23. Mandla Mbuli testified as follows: He became aware of the additional learners in the morning when the learners were to go on an excursion. The team of organisers comprised of Xaba, Ndlovu and Mafume. They informed him that there were no learners that had paid a day preceding the excursion. He was approached by Jafta, Mofume and Ndlovu, who later informed him that they were organizing an additional transport. He was made aware that the additional learners were not in accordance with the approval. He granted permission to source for transport and told them that before the transport can leave, they need to ensure that the documents are verified.
24. He tasked Jafta to assist with organizing transport. He did not give permission to Masuku and Jafta to be part of the excursion. He went outside the gate because there was chaos as a result of classes which were not being attended to. He asked Mabuza and Jafta to put learners in class. He did not personally instruct Mabuza to utilize his transport. He could not have done so given that the majority of learners had no transport. Under cross-examination he conceded that Jafta always assisted the team whenever there was a crisis. He gave permission for her to assist with transportation.
25. There were deliberations at a meeting he held with organizing team and Deputy, that the learners should be given an opportunity to attend the excursion. There were three (3) educators who were approved to accompany learners to the excursion. The teacher ratio in terms of the excursion policy is 1/30. There was no meeting held on who was to go with learners to the excursion. It was not correct that the school allowed the additional number of learners to attend the excursion whilst there was no approval from the Director.
26. The Deputy Principal and the organizing team pleaded with him to allow learners to go on an excursion. He became aware of the actual number of learners on their return from the excursion. He was aware that he was transgressing the policy pertaining to the approval. He intended to sit and discuss with the organizing team on which educators were to accompany the additional learners but had to first attend to the issue of transport. He later became aware that the other educators had left with the learners. He contacted Mabuza and enquired with him on why they did not inform him that they were leaving.
27. He could not have had a problem if the three (3) educators, Mabuza, Jafta and Masuku accompanied learners to an excursion. He conceded that he had earlier called Mabuza and Jafta whilst at the gate, so as they can control learners. Jafta informed him that she was going to the excursion and he told her that she should not go. Mofume was a novice and could not control learners, it could have been the first time for him to allow new teachers to go on their own to the excursion.
28. He knew that there were additional learners going on an excursion but he did not give the three (3) educators permission to accompany the learners. When regard is had to the ratio, there should have been five (5) educators to accompany learners to an excursion. Mabuza was also charged but he does not know the nature of the charges preferred against him. There was no impact on the administration of the school because they managed without the other educators. There is always a shortage at the school.
ANALYSIS OF EVIDENCE AND ARGUMENT
29. The Labour Relations Act 66 of 1995 as amended (LRA) under Section 186 (2) (a) defines unfair labour practice as meaning “any unfair act or omission that arises between an employer and an employee involving an unfair conduct by the employer relating to the promotion, demotion, probation…..”
30. It is common cause that the excursion took effect on 23 May 2020. Both Applicants attended the excursion which was held at University of Johannesburg. The Applicants led evidence that they had permission to go to the excursion through the excursion organizers. Accordingly, the Principal never gave them express permission to attend the excursion. It is their version that this was a practice within the school to liaise with the Principal through the organizing team. This version was not put to the Principal during his leading of evidence.
31. Ndlovu, who was part of the organizing team, was called as witness to collaborate the evidence that permission was sought and granted. He (Ndlovu) was clutching at straws and his evidence was riddled with inconsistencies. On the one hand, he mentioned that the Principal was made aware of Jafta assisting with preparations a day before, and later stated that the Principal was informed in the morning of the excursion and that he (Principal) may have been informed by members of the team at various times. He could not clearly specify how such permission was sought and granted by the Principal. It is my conclusion that there was no permission granted for both Applicants to attend the excursion.
32. It is common cause that Jafta always assisted the team whenever there was an excursion as she was a life orientation teacher. It is evident that in this instance she assisted with transport, checked and confirmed that vehicle documents are in order, ensured that learners were in class and went to fetch apples for the learners. It is worth mentioning that there is a difference between assisting and permission being sought and granted for one to go on an excursion. As a HOD at the school, it was expected for her to assist, where so required.
33. The Respondent’s witness, Mr. Mbuli (Principal), testified that Jaftha informed him that he was going on an excursion and his response was that she should not go. This version was not challenged by the Applicants. Although Jaftha was not charged with insubordination, she disregarded authority and her actions emphasizes the fact that she had no permission to attend the excursion. It is evident that there were additional learners allowed to go on an excursion, regardless of the fact that there was approval given for 70 learners and three (3) educators. Mr. Mbuli testified that a decision was taken after discussions were held with the organizers and the deputy to allow all (129 learners) to attend the excursion.
34. Mbuli conceded that this was a transgression of policy because excursions are approved by the Deputy Director. It is common cause that there are ratios of 1/30 which needs to be adhered to during an excursion to enable educators to properly supervise the learners. Mbuli acknowledged that there was a need for him to increase the number of educators to five (5), however, he did not do so because he was to discuss with the organizing team prior to departure. He became aware after their departure that the two (2) educators, Ms Jafta and Masuku had accompanied the learners to the excursion.
35. Mbuli testified that the school administration did not suffer prejudice because they managed to put the administration in order. He argued that it could have been the first excursion in which he had sent new teachers to an excursion. Accordingly, some members of the organizing team may have been unable to control the learners and he could not have had a problem with Jafta and Masuku attending the excursion as he knew they would be able to properly manage the learners. This clearly explains on why there was no immediate action taken against the two Applicants on their return to the office. However, such action was taken after an allegation of assault was initiated against the school.
36. Having considered parties submissions, I find that the Applicants breached a rule when failing to acquire permission to attend an excursion. However, there was no prejudice suffered on the administration of the school and/or discipline. Instead, it is evident from the facts that the interest of learners who attended an excursion was met when regard is had to the compliance ratios of educators. This was confirmed by the Principal’s evidence that there was a need for the two (2) extra educators in line with the additional number of learners.
37. On procedural aspect, the Applicant (Jafta) failed to discharge the burden of evidence that she was an elected executive member of the branch which could have necessitated a consultation with the union. She argued that she would furnish supplementary documents to prove that she was an elected member of the branch but failed to do so. Although the Applicants testified that they were charged with section 18 (1) (j), it is evident from the submissions that there were amendments to the charge in that the sanction imposed of a fine and warning related to a charge in terms of subsection 18 (1) (f) of the Educators Act.
38. Much as the Applicants argued that their charge sheet reflected an incorrect incident date and misalignment on the subsection; there was no prejudice suffered by the Applicants because they understood what the content of the charge entaied. On this basis, I find that there was no procedural irregularity. The Applicants sought the withdrawal of a warning and reversal of the deduction as a relief. It is evident from the facts that the Applicants did not approach the Council with clean hands in that they attended the excursion without permission being sought and granted by the Principal. I therefore order as follows:
39. The Respondent, Department of Education (Gauteng), is directed to withdraw the final written warning issued to the Applicant, WM Jafta, on date of receipt of this award. Further to this, the Respondent, Department of Education Gauteng, is ordered to reimburse the Applicant, Ms. Jaftha (R6 000) and Ms Masuku (R3 000), the amount already deducted from their salaries as a fine.
40. As at date of this award, the Respondent is directed to issue to each Applicant, a verbal warning valid for six (6) months.
Thus done and signed in Pretoria on 27 January 2021.
Evah T. Ngobeni