Case Number: ELRC196-20/21KZN
Commissioner: Vuyo Ngcengeni
Date of Award: 20 March 2021
In the MATTER between
Velile Blessing Ngcobo
Department of Education: Kwazulu Natal
Union/Applicant’s representative: Mr Juddasthadious Philani Ngwabe (attorney from JP and Associates
Telephone: 031 301 2075 / 078 673 9231
respondent’s representative: Mr Itumeleng Makhhooe
Telephone: 031 737 2078
DETAILS OF THE HEARING AND REPRESENTATION
1. This is an award in which I briefly record the evidence and the arguments presented to me for the purposes of a determination.
2. The Arbitration was held under the auspices of the Education Labour Relations Council (the Council) in terms of s186(1)(a) of the Labour Relations Act of 1996 as amended (LRA).
3. The matter was held virtually on the 3rd of March 2021. The Employee was present and he was represented by Mr Juddasthadious Philani Ngwabe and the Employer was represented by Mr Itumeleng Makhooe.
4. The hearing was conducted in English. It was also electronically recorded.
5. The Employer submitted a termination letter, a resignation letter which is disputed by the Employee and a clearance letter for the Employee.
6. The Employee submitted one bundle which includes: a precautionary suspension letter which he signed for receipt of on 13 January 2020, charge sheet by the Magistrate Court, his bail application forms dated the 10th of January 2019, other correspondence between him and the Employer.
7. I received the closing arguments on 12th of March 2021.
ISSUE TO BE DETERMINED
8. I am required to determine whether the termination of the Employee’s employment in terms of section 14(1)(d) of the Employment of Educators Act, no 76 of 1998 as amended (the Act) read together with item no 7 of HRM Circular 37/2016 and s15(1) of the Act, amounted to an unfair dismissal or not.
9. The Employee seeks reinstatement.
BACKGROUND TO THE DISPUTE
10. The Employee was employed in January 2009 and at the time of the termination of his services, he was based at Mqhawe High School (the school) in Inanda, where he was employed as a level 1 Educator.
11. During December 2018, allegations of a serious misconduct allegedly committed by the Employee to a learner of the school were reported to the school. The Employee was accused of having raped the learner. The matter was then reported to the District offices by the Principal.
12. Upon the opening of the schools in January 2019, the Employee was put on precautionary suspension on the 21st of January 2019.
13. A resignation letter dated the 10th of January 2019 was received by the Employer in August 2019.
14. The Employer rejected the resignation on the basis that it did not comply with s15 (1) of the Employment of Educators Act 76 of 1998 (the Act) and no 7 of Circular no 37 of HRM 2016.
15. Subsequent to the resignation letter, the Employer terminated the Employee’s services on the 22nd of August 2019 by operation of law in terms of s14 (1)(d) of the Act, stating that he resigned whilst the disciplinary process against him was still incomplete. This was read in conjunction with s15 (1) of the Act and no 7 of Circular no 37 of HRM 2016.
16. The Employee referred the dispute to the Council for conciliation on the 2nd of September 2020. The late referral was condoned on the 11th of same and a certificate of non-resolution was issued on the same day.
17. The matter was then referred for arbitration on the 10th of November 2020.
18. The Employee was paid until October 2019.
SURVEY OF EVIDENCE AND SUBMISSIONS
The Employer’s case
Mr Sipho Mthembu (Mthembu) testified under oath as follows:-
19. He is the Principal at the school and has known the Employee since the Employee joined the school about 10 years ago.
20. On the 12th of December 2018, a learner, Ms MM, Mr Sipho Mbatha and Ms Nonhlanhla Msomi came to the school to report an alleged rape of the learner by the Employee.
21. He tried to get the Employee to respond on the allegations, but the Employee was not at school on that day.
22. On the 13th of same, he called the Employee using his cell phone and the Employee promised that he would come to him, but he did not.
23. The learner’s parents reported the incident to the Police and he also reported it to the District offices.
24. Since the schools were closed for the end of the year holidays, he did not hear from the Employee until the 8th of January 2019, when the Employee reported for duty at the school.
25. At around 09h30, he looked for the Employee at the school and he could not find him.
26. On the 11th of January 2019, whilst he was in his office, some members of the Employee’s family came to see him and they handed to him the Employee’s resignation letter, which he acknowledged immediately.
27. The Employee came back to school on the 21st of same, after he had called him and told him to come to the school to take his precautionary suspension letter. He has no clue as to what happened after that.
28. He did not visit the Employee whilst the Employee was in prison, and is not aware of any staff member who may have done so.
29. The learner who was allegedly raped by the Employee resides a few kilometres from the school, and she also has an uncle at the school.
30. Under cross examination- During 2018, he tried to communicate with the Employee by calling him, not in a written communication. Everything that requires investigation is as a norm, submitted by himself to the circuit management and he did so on the 13th of December 2018.
31. He was very close to the Employee. He does not know the names of the Employee’s family members who brought in the resignation letter.
32. On the 21st of January 2019, he did not discuss anything with the Employee, he only handed him the suspension letter. He informed the Employee that he received his resignation letter.
33. He has no clue as to how was the Employee informed of the pending disciplinary action against him.
34. He knows the Act. In such issues, his job as the Principal is to collate information and submit it to the Circuit or District.
35. He thought since the resignation letter bore the Employee’s signature, it came from the Employee.
36. Arguments- The Respondent admits that the ordinary procedure of disciplinary hearing was abandoned due to Applicant resignation.
37. The process of discipline began when the Principal reported the matter to the Circuit. The Circuit in turn reported to the District where the Employee Relations Section became involved. A letter of suspension was served on the employee eventually.
38. It must be noted that this became a process that involves various managers in line authority until the motivation is signed by the Head Of Department, Dr EV Nzama.
39. The approach that the Applicant took is a misdirection. The letters that the Representative asked for are not provided for in the Department of Education, KZN.
40. By virtue of the Applicant’s immediate resignation or short notice, and by so resigning when the disciplinary proceedings were not disposed of, the Application transgressed section 14(d) and 15 (1) read with item 7 of HRM Circular No.37 of 2016.
41. The above prescripts are deeming provisions. The discharge is by operation of the law. It is used for the very facts that are applicable in this matter. The Applicant cannot use the fact that he did not know what he signed as an excuse. He who alleges must prove.
42. His case implied that he was duped into signing the resignation. He cannot say who made him sign.
43. The Respondent proved that he signed a resignation letter to outsmart the system. The system outsmarted him back.
44. The Respondent was perplexed following the quick perusal of the Applicant’s closing arguments. The Applicant’s closing argument stated that the Applicant did not know who signed the resignation letter. This was in direct contradiction of his very testimony. Most probably the change is brought about by the late realization that signing was binding in terms of the caveat rule.
45. It is in the light of the afore-going that the Respondent requests that the application be dismissed.
The Employee’s case
The Employee testified under oath as follows-
46. At around September 2018, he was approached by his grade 12 physical science learners and they told him that there were rumours going around at the school, those rumours were that there were educators who told them that they must take him out of the school.
47. He then approached Mrs Manqele, his Head of Department and reported what he was told by the learners. He expected that someone or the Principal would come back to him, and no one did.
48. After that, he heard the news of his alleged rape of the learner.
49. On the 8th of January 2019 at around 09h30, whilst he and one of his colleagues were out of the school yard on a break, Police came and arrested him for allegations of sexual harassment.
50. He stayed at the police cells for two days and on the 10th of same, he went to the Ntuzuma Magistrate court. He then completed a number of forms as he applied for bail and he was assisted by an attorney. He did not get the bail.
51. He then went to prison where he spent 7 days and on the 17th of January 2019, the case was withdrawn.
52. On the 21st of same, he went to the school, and Mthembu called him and gave him the suspension letter and told him not to come to the school until he (Mthembu) calls him.
53. Mthembu also told him that the disciplinary hearing would be held within 3 months, and after 3 months, he went back to Mthembu and Mthembu was clueless in terms of the disciplinary hearing.
54. Before the end of three months, his colleague, Ms Noluthando Sithole called him on his cell phone, and told him that he was being marked absent in the attendance register, and he saw this when he went to the school.
55. In November 2019 after his salary was stopped, he went to the Employer’s offices in Durban to make an enquiry and he was told that he may have been absent from work and was therefore told to go to Mr Itumeleng Makhooe.
56. Mr Makhooe also asked him about the resignation letter and he told him that he knew nothing about it. Makhooe showed him the letter with his (Employee’s) signature and he saw it for the first time.
57. He wanted to speak to Mthembu, but Mthembu said he could not speak to him whilst he was on suspension.
58. He never got any call from Mthembu on the 13th of December 2018.
59. Under cross examination – He was aware that one of his colleagues was the uncle to the learner in question. He was not at school on the 13th of December 2018, and as such, he never heard about the learner’s parents being at the school.
60. He was at the school on the 14th of same.
61. He cannot dispute that the learner’s parents came to the school on the 12th of December.
62. He does not know why Mthembu did not call him.
63. He did not know anything about the allegations until the 21st of January 2019 when he was given a suspension letter by Mthembu. Before that, there were just rumours.
64. He does not know a difference between resignation and being discharged as well as the impact thereof on the pension fund benefits.
65. He denies that he resigned and sent the letter through his family members, as that is not possible because he had no access to the telephone. So he could not have sent the letter.
66. He cannot say he signed the resignation letter, because he was not aware of it. He did not know who made him sign the resignation letter.
67. When put to him that his resignation letter was a strategy to outsmart the system, but it backfired, he had no comment.
68. Arguments- The resignation letter could have been prepared by anyone but definitely not the Applicant.
69. It was proven during examination in chief of the Applicant's witness that the letter was prepared on the 1Oth day of January 2019.
70. On that date the Applicant was still in custody and had no resources to prepare the same letter. As to who signed the resignation letter, the answer is simply that it could be anyone. lt was established during examination in chief of the Respondent witness that the principal received a letter from people that he assumed were family members of the Applicant.
71. In cross examination it was proven that the principal's beliefs were unfounded. Further, the principal agreed to not knowing who those members were and the relationship that they had with the Applicant. Therefore, the only plausible conclusion that could be reached is that the principal received a letter from strangers and made no attempts to verify the authenticity of the letter with the Applicant.
72. The Principal did not make any effort or attempt to verify the authenticity of the Resignation Letter, he had the opportunity to do so when the Applicant went to school on the 21st of January 2019 but only chose to hand the Applicant the Precautionary Suspension Letter. That is the only logical conclusion. Therefore, the Principal as a representative of the Responded did not only fail on his duty to confirm the received letter with the person who he assumed drafted and signed the letter, but he once again failed on his duty to make a decision on whether to accept or decline such resignation hence he served the Applicant with a Precautionary Suspension Letter.
73. It cannot be said that the applicant had absconded. The respondent was throughout aware that the Applicant was discharged based on misconduct in terms of Section 14 (1) (d) of the Employment of Educators Act, in that he resigned while the disciplinary steps taken against him were not disposed of, and such dismissal is based on the operation of law.
74. The evidence led in examination in chief and cross examination by both parties exposed the fact that there was an error made by the Respondent in the application of Section 14 (1) (d) above.
75. Further that mistake is supported by the evidence presented in bundle of documents submitted by both parties.
76. The precautionary suspension letter was served to the Applicant on the 21st day of January 2019.
77. That is eleven (11) days after the Respondent had received the so called letter of resignation.
78. The principal concurred in his testimony with the above fact. Therefore, it can be concluded that the Applicant was informed for the first time of the allegations against him only on the 21st day of January 2019 when he received the precautionary letter from the principal.
79. In that atmosphere it is therefore the argument of Applicant that Section 14 (1) (d) does not apply in this matter at hand as the purported letter of resignation was received by the Principal before the Applicant was informed of any proceeding against him either verbally or in writing.
80. The Respondent's witness in his testimony stated that he made several attempts to contact the Applicant, without success to hear his side of the story. However, the principal did not provide any evidence to that effect. Hence, the only evidence being there of the exact date the Applicant was informed of the allegations against him is the Letter of Precautionary suspension which was served only on the 21st day of January 2019 to the Applicant.
81. The Respondent was negligent in the following grounds while dealing with this matter:
81.1 The principal received a letter of resignation from unknown people and sent same to the department without verifying or confirming with the Applicant whether this letter was what it purported to be and did it serve the interest of the Applicant;
81.2 Further, the Respondent witness was aware that the alleged victim in the criminal case had a relative in school who is an educator. Therefore, there was a high possibility of a third person with ulterior motive being involved in preparing, forgery and delivery of the same letter. Yet the principal proceeded negligently to file a letter of resignation received from unknown people and furthermore failed to confirm same letter with the Applicant.
81.3 Section 15 (1) of the Employment of Educators Act 76 (as amended) provides that an educator may resign by giving 90 days' notice in writing or such shorter notice as the employer may approve at the request of the educator. In this case there was never any communication about the letter of resignation between the principal and the Applicant.
81.4 Therefore, how did the principal approve the resignation at a shorter notice without confirming the request of the Applicant? Strangers had given him the letter of resignation and the Applicant returned normally to work on the 21st day of January 2019, yet he still chose not to verify the letter of resignation.
81.5 Therefore, it is the argument of the Applicant that he was resigned by unknown people and that resignation was negligently approved by the principal.
81.6 The Respondent followed a conflicting procedure when dealing with the Applicant's matter. Firstly, the Respondent received the letter of resignation with immediate effect on the I1th day of January 2019. Secondly, the Respondent gave the Applicant on the 21st day of January 2019 a letter of precautionary suspension, which contained instructions to be followed by both parties in reaching an amicable conclusion of the matter. Thirdly, the Respondent continued to pay the Applicant his salary for a period of about Ten (10) months, after the former had received a letter of resignation with immediate effect.
81.7 Within that period the Applicant even received a bonus. Fourthly, the Applicant continued to appear on the school register and was not removed as a person who had resigned with immediate effect, for a period of few months.
82. Following are facts that were proven during the hearing and supported by evidence in bundles prepared by both parties:
82.1 The Applicant was resigned for by unknown people who were assisted by the negligence of the principal.
82.2 The Respondent has never confirmed the authenticity of the resignation letter prior to processing it.
82.3 The Applicant was only informed for the first time of the proceedings against him on the 21st of January 20'19.
82.4 No disciplinary proceedings were pending at the time the Applicant was incarcerated.
82.5 Section 14 (1) (c) is not applicable to the matter at hand because the applicant has not assumed any employment.
82.6 Section 14 (1) (d) does not apply in the matter at hand for the reason in 81.3.
82.7 Section 15 (1) also does not apply in the matter at hand for the mentioned reason mentioned above.
83. Conclusion It is clear from the above that the Respondent must reverse its decision of dismissing the Applicant by way of discharge since it has been proven that it was unfair and not in line with the operation of the Law.
84. The Applicant has already suffered grave prejudice and continue to suffer because of the Negligence of the Respondent.
85. The Applicant therefore pray as follows:
85.1 Reinstatement with immediate effect.
85.2 Payment of his Salary retrospectively from date of dismissal (November 2019).
85.3 Further or alternative relief.
ANALYSIS OF EVIDENCE AND ARGUMENTS
86. It is common cause that the Employee is deemed to be discharged in terms of s14(1) of the Act which stipulate that-
“Certain educators deemed to be discharged.—
(1) An educator appointed in a permanent capacity who—
(c) while suspended from duty, resigns or without permission of the employer assumes employment in another position; or
(d) while disciplinary steps taken against the educator have not yet been disposed of, resigns or without permission of the employer assumes employment in another position, shall, unless the employer directs otherwise, be deemed to have been discharged from service on account of misconduct, in the circumstances where—
(i) ….; or
(ii) paragraph (c) or (d) is applicable, with effect from the day on which the educator resigns or assumes employment in another position, as the case may be.”
87. I have noted the testimony presented by both parties in this matter and that the bone of contention hinges more on whether did the Employee resign or not, which is the basis on which the Employer took the decision to have the Employee deemed to be discharged.
88. In the MEC for the Department of Education Western Cape v Jethro delivered on 13 June 2019, the LAC on para 41 held “A letter informing an employee of his or her deemed discharge by operation of law under section 14(1) of the EEA involves no decision or exercise of a public power, and thus cannot constitute administrative action; but a decision taken under section 14(2) of the EEA constitutes an exercise of a statutory power and the performance of a public function by the Department. It is a decision of an administrative nature (as opposed to an executive, legislative or judicial nature), which is informed by policy considerations regarding efficiency, and may adversely affect the rights of persons outside the Department, such as the respondent. The decision cannot be challenged under Chapter VIII of the LRA because it does not constitute a dismissal as defined in section 186(1) of the LRA – the dismissal having been deemed and the decision in terms of section 14(2) of the EEA being concerned solely with a request for reinstatement on good cause. The decision likewise cannot constitute an unfair labour practice under section 186(2) of the LRA because it does not relate to the rights and interests protected by that remedy. In the premises, a decision by the Head of Department, charged with the exercise of a statutory discretion to reinstate on good cause shown an employee deemed to have been discharged, constitutes administrative action reviewable in terms of PAJA.”
89. In terms of Jethro case above, the decision taken by the Employer in this case is an administrative decision, and to this end, it cannot be challenged under LRA because it does not constitute a dismissal as defined in section 186(1).
90. In the circumstances, I am satisfied that guided by the case above, the Council lacks jurisdiction to determine this matter.
91. The Council lacks jurisdiction to determine the matter.
Panelist / Commissioner