ELRC80-20/21WC
ELRC80-20/21WC
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Award Date:
28 April 2021
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Case Number: ELRC546-20-21GP
Commissioner: E Maree
Date of Award: 28 April 2021
In the ARBITRATION between
Michael Sepule Sethokga
(Applicant)
And
Department of Education-Gauteng
(Respondent
Details of hearing and representation
1The arbitration regarding an alleged unfair dismissal, referred in terms of section 191 of the Labour Relations Act 66 of 1995 (as amended), the ‘’LRA’’ was heard on the 10th of March 2021 and the 6th of April 2021 and was conducted via ZOOM.
2. The applicant was represented by Mr. C. Levin an attorney from Clifford Levin Incorporated while the respondent was represented by Ms. I. Ntombeni, the Assistant Director: Dispute Directorate.
3. The arbitration was electronically recorded, and handwritten notes were taken.
Issues to be decided
4. I must determine if the dismissal of the applicant was substantively and procedurally fair and to determine appropriate relief in the event of a finding of unfairness.
5. The applicant disputed the contravention of workplace rules and the procedural fairness of the dismissal that was held in absentia.
Background to the dispute
6. The applicant was dismissed on the 27th of October 2020 subsequent to a disciplinary hearing relating to misconduct on charges of failing to submit a Grade 6 History paper for pre-moderation, causing Grade 6 learners to write a History paper that was not pre-moderated and instructing an intern Ms Potsane to construct a Grade 6 History examination cover page by using a Grade 6 moderated Geography cover to create the impression that the History paper was moderated whilst it was not.
7. An appeal was lodged on the 25th of November 2020 that was turned down on the 21st of January 2021 where after the dispute was referred to the Council.
8. The applicant seeks reinstatement.
9. The applicant submitted bundle A and the respondent bundle B. The bundles were properly exchanged via e-mail prior to the arbitration commencing. Bundle B was not disputed but pages 45 and 46 of bundle A were contested.
Survey of evidence and argument
The LRA requires that brief reasons be given in an award, therefore the following is a summary of the relevant evidence given under oath and submissions made in argument all of which is not reflected in this award but had nevertheless been taken into account.
Respondent’s evidence
10. The respondent called four witnesses in order to prove, on a balance of probabilities, that the dismissal was substantively and procedurally fair.
11. The first witness Mr. Tsietsi Maseko testified that he is the Principal at Pitseng Primary School where the applicant was employed as the Deputy Principal and as such reported directly to him. Mr Maseko stated that as Chief Accounting Official he is responsible for the school, thus oversees processes and must ‘’know what is going on in the school.
12. The applicant was the curriculum manager and a member of the school assessment team and was responsible for assessments, compiling the management plan on how to do assessments and initiating educators. The applicant chaired meetings where amongst others the assessment plan was compiled and the role of educators during assessments was explained.
13. Mr. Maseko submitted that the applicant drafted the evaluation plan regarding general assessments and one of the items on such plan is the dates on which submissions of papers must be made to the Head of the Department [HOD] before such paper is written. The examination management plan [Bundle B – J-J1] gives directions on how the examination will unfold. It shows the dates on which examination papers must be submitted at the HOD for pre-moderation.
14. Charge 1 alleges that the applicant [who taught Social Sciences that consists of History and Geography] failed to submit the Grade 6 History paper for pre-moderation to the HOD that had to be done as per the management plan during 6 to 10 May.
15. Mr Maseko stated that he [as was his duty as Chief Accounting Officer] continuously made follow ups with the HOD regarding the progress with the moderation and that he was aware that the applicant had not yet submitted 2 papers for moderation. During the first term the applicant gave a paper to learners that was substandard and caused a dispute that necessitated the intervention of the district. As he wanted to avoid another incident he instructed Ms Pooe, the HOD to follow up with the applicant to ensure that he submit his papers for pre-moderation to ensure it is on standard. Ms Pooe informed him subsequently that the applicant failed to submit his papers for pre-moderation and he instructed her to draft the circular [K1] dated the 24th of May 2019 to remind the applicant. Due to this incident the relationship between the applicant and Ms Pooe was strained and she offered to arrange a support session between the applicant and the management team to better relations but the applicant failed to attend even after it was rescheduled to another date.
16. Despite receiving the circular, the applicant did not submit papers for pre-moderation to the HOD [Ms Pooe] to whom he directly reported regarding curriculum matters. As HOD Ms Poee must pre-moderate all papers
17. The working relationship with the applicant was ‘’not an easy one’’ as the applicant is ‘’difficult’’ to work with, does not follow instructions ‘’easily’’ and ’’questions everything’’.
18. Bundle B - N – N9 show the school assessment policy that is related to charge 1. Learners cannot write papers that had not been pre-moderated by the HOD to ensure it is on standard.
19. Mr. Maseko submitted that the 11th of September 2020 was the last time the applicant was at school and indicated he was going to apply for co-morbidity leave but he informed him the applications for such were closed. According to Mr Maseko he sent a message to the applicant on the 17th of September 2020 indicating that his absence is unauthorised and that he had no documents to show if he was ill or not. The applicant responded indicating he was ill but that he does not have documents. He indicated to the applicant that he needs documents as he had to arrange for a substitute educator. The applicant informed him that he would submit same the next day and would apply for leave, but never did. He sent a message to the applicant on the 1st of October 2020 informing the applicant that he was on unauthorised leave and still has no documents and the applicant indicated he would submit same the next day but never did.
20. During the time the applicant wanted to apply for co-morbidity leave, the country moved to lockdown level 1 and all educators who were on such leave, were recalled and new applications were not considered.
21 Mr Maseko submitted that charge 2 is ‘serious’’ and a contravention of the assessment policy and management plan. If learners are allowed to write papers that were not moderated and are substandard, they are negatively affected due to not being prepared to meet learning challenges of the next term or year. The paper was substandard as question 5 contained the same technique as question 2 and question 6 refers to ‘’the case study below’’ but it was not ‘’below’’ or attached.
22. Mr Maseko submitted regarding charge 3 that Ms Poee confirmed that the applicant’s paper was not moderated despite the paper showing it was moderated by her. The applicant approached, Lerato, who at that stage worked as administrative intern and instructed her to make a copy of the paper that was not questioned as he normally gave instructions to interns.
23. The second witness, Ms Lerato Potsane stated that she was an administration clerk at Pitseng Primary School during 2019.
23. Ms Potsane submitted that the applicant approached her on the 23rd of May 2019 and handed her a draft history paper to type, which she did. On the 27th of May 2019 she ‘’added a few things’’ to the paper, printed it and handed it to the applicant.
24. She stated that the applicant approached her later that day and instructed her to type the cover page. She then approached the applicant who was in the staff room with two other educators, stapling Geography examination papers, and she indicated she does not have the cover page for the History paper on her lap top and asked him for an example in order to type the cover page and he then handed her the cover page for the Geography paper.
25. She then went to the office to type the cover page but before she was done, the applicant approached her and told her to ‘’copy and paste’’ by using the stamp and signature of the HOD on the Geography paper [I5] and to copy and paste it onto the History paper [I2].
She thus typed the word ‘’history’’ then cut it out from the paper with scissors and used glue to past it over the word ‘’geography’ on the cover paper that the applicant handed to her. This resulted in I2.
26. Ms Potsane stated that she then realised that there is a stamp and a signature and when pointing this out to the applicant and saying that it cannot be used as it was not moderated, and saying that she would rather type a new cover page, was told by the applicant ‘’it is fine, I will use it like this’’.
27. Ms Poee then discovered the paper that had her stamp and signature and ‘’was surprised’’ by this as she had not seen it.
28. The third witness Ms Mamake Poee testified that she is the HOD and as such was responsible to moderate the examination papers of the applicant. She did not receive his History paper for moderation and wrote him a letter [K1] on the 24th of May 2019 to remind him which letter he signed for. Despite the letter the applicant failed to submit the History paper.
29. She realized on the 30th of May 2019 that learners would write a history paper on the 31st of May 2019 that was not moderated. The applicant was absent on the 30th of May 2019 and she thus went to the staff room to find the paper and the realised that what purported to be her stamp and signature was not affixed by her, as she had not moderated the paper. She moderated, signed and stamped the Geography paper [I5] but the History paper [I2] was not moderated by her despite her signature and stamp.
30. The applicant was absent on the 30th and 31st of May 2019 but as he reported to the Principal she does not know the reason for his absence. The applicant only reported to her regarding curriculum issues for his subject, Social Sciences.
31. She approached the Principal to take action regarding the issue surrounding the History paper.
32. The fourth witness, Ms Emily Magadla testified that she acted as the chairperson of the applicant’s disciplinary hearing.
33. The hearing was scheduled for the 16th of September 2020 but did not proceed due to the absence of the applicant and was postponed to the 23rd of September 2020 on which date the applicant was also absent, despite having been given notice of the new date. No reasons or proof [such as medical certificates] for the applicant’s absence where provided nor did a representative appear on his behalf to offer an explanation on any of these days.
34. According to Ms Magadla she was informed by the initiator that the applicant, during a ‘’pre-trial’’ that was held on the 9th of September 2020, indicated that he would not attend the hearing as he intended to apply for co-morbidity leave. However, on the dates [16 and 23] when the hearings were scheduled no such proof was provided. The initiator called the applicant in her presence but he did not answer his phone upon which she called the applicant from her cell phone, but he did not answer.
35. Ms Magadla stated that she was informed by the initiator at the hearing of the 23rd of September that the applicant was at the office about an hour before the hearing was to start to deliver a restraining order against Mr Mokoena and Ms Poee, where after he left. Due to this order, the notice for the hearing of the 23rd of September was served at the applicant’s house and due to his absence, was served on his tenant around the 18th of September 2020.
36. The hearing then proceeded in his absence on the 23rd of September 2020. At this time there was also a memorandum from the HOD that all employees on co-morbidity leave, must return to the workplace due to the change in lockdown levels. It is also clearly stated on the notification that a hearing would proceed in absentia if there is no valid reason for the absence.
Applicants’ evidence
37. On behalf of the applicant Mr. Michael Sepule Sethokga testified that he commenced employment with the respondent during 1998 as educator and rendered duties as such at Pitseng Primary School since around 2009/2010 where he was also the Deputy Principal.
38. Mr. Sethokga submitted that during 2011 he ‘’fell ill with diseases’’ that eventually led to being hospitalised after consulting a medical practitioner.
39. It was stated that he acted as Deputy Principal and that the number of learners increased from around 490 to 960 and due to securing sponsors, the school now has a library. Learners and parents were happy but it caused friction with the leadership
40. Since 2012 he ‘’was ambushed left, right and centre’’, and currently the Principal is brought in to ‘’destroy’’ his career. When this failed, head office and administrative personnel was brought in. It is his view that the district official ‘’connived’’ against him that includes ‘’the one at labour’’.
41. He was the Deputy Principal and responsible for Grades 6 and 7 and is responsible for overseeing the dates and compilation of question papers that he would then hand to the administration team. He would hand the papers to Tshidi at the administration team and she would hand it to the HOD for moderation and the stamp.
42. ‘’I5’’ shows the date he gave it to the admin clerk to type, the HOD approved it and he ‘’knows nothing of cut and paste’’ and he only heard of this after being charged. He gave it to Tshidi to type and to then hand it to the HOD to moderate. Thereafter copies are made and handed to him in the staff room where he was the chief examiner.
43. ‘’I3’’ question 6 refers to ‘’the case study below’’ which was at the back of the paper. He had been doing this for 10 years and this was the first time it was challenged.
44. During 2019 was the ‘’start’’ of his ‘’mental issues’’. He consulted a doctor and uses medication for hypertension that could lead to stress. This was the cause of the delay regarding the papers in 2019. He is currently using tablets on a daily basis. He has high blood pressure that could lead to heart failure or a stroke and he thus reduced his pace.
45. ‘’K1’’ was submitted albeit late and as it was valid was written by the learners.
45. He was served with the notice to attend the hearing [A1] on the 18th of September 2020 at school and responded to it [A3]. He attended the pre-hearing on the 9th of September 2020 and gave the presiding officer, Ms Mokoena the document marked ‘’H’’ and requested her to hand it in at the hearing on the 16th of September 2020. He indicated that it ‘’was difficult to continue due to the new disease’’. Ms Mokoena rejected the document and said it was not authentic, handwritten and not from a doctor.
45. According to Mr. Sethokga he then approached the doctor who explained to him that the letter was handwritten as he ‘’ran out of letterheads’’. The doctor then gave him a letter on a letter head [bundle A page 3/bundle B ‘H’].
46. Mr. Sethokga stated that he ‘’understood’’ that things ‘’would not go well and would be serious if the medical certificate is rejected’’ and he then ‘’prioritised my own health’’ and consulted a doctor who issued a new letter [A3] which he submitted. It was his understanding that this was a valid sick note and that the hearing would not continue only to find that he was dismissed on the day he was in hospital.
47. He obtained a protection order due to ‘’lots of harassment by district officials’’. They were at his home and demanded that he came out and then harassed his wife, children and tenant. He did not serve the order that was done by the Police.
48. He intended to apply for co-morbidity leave but did not do so as he was covered by the sick note – of which everyone was aware – until the 5th of October 2020 [A3].
Analysis of evidence and Arguments
49. Section 192(1] of the Labour Relations Act 66 of 1995 as amended (LRA) places the onus on an applicant to establish the existence of the dismissal, which in this matter was common cause.
50. Section 192(2) requires that the respondent must prove that the dismissal was substantively and procedurally fair.
51. The LRA, in schedule 8, sets out the guidelines for a fair dismissal. Item 7 specifically refers to misconduct and states as follows:
“Any person who is determining whether a dismissal for misconduct is unfair should consider -
(a) Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
(b) if a rule or standard was contravened whether or not-
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have been aware of the rule or standard;
(iii)] the rule or standard has been consistently applied by the employer and;
(iv) dismissal was an appropriate sanction for the contravention of the rule or standard. “
52. The applicant was charged in terms of section 18 (1) (f) and (q) of the Employment of Educators, Act 76 of 1998 as amended, the EEA.
53. The existence of the rule/s as contained in the Act were not disputed by the applicant. The only substantive issue thus to be dealt with is that contained in item 8(7) (a). The remainder of the substantive issues (item 8(7) (b) (i – iv) were not placed in dispute.
54. The respondent thus had to prove, on a preponderance of probabilities that the workplace rules were contravened and that the procedure followed was fair.
55. The crux of the respondent’s case was that the applicant failed to submit the History Paper for Grade 6, to the HOD, Ms Pooe, for pre-moderation, on the date as set out in the examination management plan, as drafted by the management team.
56. It was stated that the applicant as Deputy Principal and curriculum manager was amongst other duties involved in and responsible for this plan, and thus fully aware of the dates therein, and his responsibilities regarding the pre-moderation process.
57. Ms. Pooe submitted that she wrote a letter to the applicant [that he signed for] that the paper was not submitted to her for pre-moderation. She stated during cross-examination that the procedure for pre-moderation entails that the examination papers are submitted to her, by the educator where after she sends the papers to the clerks to be typed and that it was not the duty of the clerk to give the papers to her. This was not disputed nor was the submission that the applicant put the process/policies in place.
58. The applicant’s version regarding the process – that is in contrast to that of Ms Pooe – was that he would hand the paper to the clerk to type where after the clerk would hand the paper to the HOD for pre-moderation. This process was not put to Ms Pooe as being the one followed, during cross-examination, other than stating that the typed version [that the applicant claimed he gave to Tshidi to type] was submitted to Ms Pooe.
59. Ms. Potsane, who was an administration clerk at Pitseng Primary School during 2019 testified that the applicant handed her a draft History paper to type which she did, printed and handed to the applicant.
60. Ms Potsane stated that she asked the applicant for an example of the cover page, as she did not have one on her lap top. The applicant then handed her the cover page of the Geography paper and he told her to do a ‘’copy and paste’’ which entailed typing the word ‘History’, cutting it out and pasting it with glue on to the Geography paper, thus pasting the word History’ over the word ‘Geography’.
61. The end result of this was that it created the impression that the History paper was moderated as the stamp and signature of the HOD then appeared on the ‘’History’’ paper cover page that in fact was the cover page of the Geography paper.
62. Ms Potsane stated that she was approached by the HOD, Ms Pooe regarding this paper when she [HOD] saw it and realised she had not pre-moderated it despite her stamp and signature appearing on it. It was also submitted by Ms Potsane that she approached the applicant about this issue and pointed out to him that the History paper was in fact not pre-moderated but was told by the applicant ‘’no it is fine, I will use it like this’’.
63. Evidence was led that the paper was below standard and contained a question that was based on a case study that was referred to in the questions as ‘’the case study below’’. It was submitted, with reference to the paper that no case study was contained in the paper.
64. The applicant countered – without providing any support for the contention – that the case study was at the back of the question paper. He was confronted with this issue during cross-examination, and stated that he was barred from obtaining such paper at the school to support his case. Even if the applicant’s version is to be accepted, namely that the case study was at the back of the paper, one would expect then that the question would refer to the ‘’case study at the back of the paper’’.
65. The applicant upon a question of clarity regarding this aspect indicated that no attempts were made to obtain such paper either with a subpoena or by virtue of the Council rules.
66. The evidence of Ms Pooe that she sent the applicant a written reminder of the outstanding History paper –that he signed for – was not disputed. It was in fact accepted during the cross-examination of Ms Pooe that he received such reminder and only realised then that there was an issue as he ‘’thought’’ it was submitted for pre-moderation.
67. One would expect of an educator, Deputy Principal and a person intimately involved with the arrangements such as the applicant was, regarding pre-moderation to ensure that one’s own paper is indeed submitted for such process. This is if the applicant’s version of the process is accepted namely that he gives it to the administration clerk to type and such clerk then submits the typed version to the HOD.
68. As stated this process as the applicant claimed existed was not put to Ms Pooe nor was her version of the process disputed. In any event it cannot be expected of a clerk to fulfil a function that is clearly that of an educator.
69. The applicant testified that the History paper was submitted albeit late and as it was valid was written by the learners. It was put to the applicant during cross-examination that the evidence of Ms Pooe was that she had not received said paper for pre-moderation. To this the applicant respondent ‘’how would I know I am not Pooe’. He repeated his evidence that he gave the paper to Tsidi to type who then handed it to Ms Pooe. When asked if he would call Tsidi to testify to support this version, the applicant said ‘’no, why would I call her?’’
70. These are but two examples of the arrogant manner in which the applicant answered questions. The applicant did not impress as a witness and was constantly arrogant, argumentative and rude, he continuously interrupted the respondent’s representative and asked counter questions to most of the questions put to him. His demeanour, tone of voice and counter questions varied between arrogant and bordered on insulting.
71. Ms Potsane rendered damning evidence against the applicant regarding the cover page that she ‘’cut and paste’’ to create the impression that the History paper was pre-moderated. Although her version was disputed during cross-examination, it was not destroyed, shown as improbable or that it was not the truth. She continuously confirmed that she was instructed to do this by the applicant, the Deputy Principal, conceded that such amounts to fraud and that she was not disciplined for her part in the incident.
72. The applicant denied during evidence that he instructed Ms Potsane to ‘’cut and paste’’ and re-iterated that he gave the paper to Tshidi - who was not called to support this version – to type. When asked during cross-examination why Ms Potsane would lie, the applicant stated ‘’I want to know from her why’’. It was put to him that Ms Potsane was not asked about this issue during cross-examination. The applicant then threw his attorney under the proverbial bus and said ‘’ I gave the responsibility to my attorney’’.
73. The applicant’s version broadly stood on three legs and varied between a bare denial, a plot against him that involves colleagues at the school up to the Departmental officials, Head Office and his health.
74. The applicant testified that he submitted the History paper, albeit late, gave it to Tsidi to type who handed it to the HOD, knows nothing of ‘’cut and paste’’ and did not submit a substandard paper as the case study was at the back of the paper.
75. Tshidi was not called to confirm this version and that of Ms. Potsane was not shown as improbable. There was also no support for the contention that the case study was at the back of the paper. Even if it was, the question does not state that.
76. The evidence of the respondent’s witnesses were not destroyed during cross-examination and thus stands as probable.
77. These witnesses even under severe cross-examination remained firm in their evidence, did not contradict themselves or the others and re-iterated what they testified to during evidence in chief.
78. The version presented on behalf of the respondent is inherently probable and the charges thus proven.
79. In Sidumo v Rustenburg Platinum Mines Ltd & Others (2007) 28 ILJ 2405 (CC) the court stated as follows in paragraphs 78 & 79:
(78) In approaching the dismissal dispute impartially a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long service record. This is not an exhaustive list.
(79) To sum up. ’In terms of the LRA a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision, a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances’’.
80. In Department of Home Affairs and another v Ndlovu and others (2014) ILJ 3340 (LAC) it was held that in order to prove that the sanction of dismissal was appropriate the employer must present evidence to prove the breakdown in the employment relationship. Such evidence is not necessary where the breakdown is apparent from the nature of the offence and or the circumstances.
81. The applicant was charged with contravening sections 18(1) (f) and (q) of the Educators Act.
82. Sections 18(1) (f) and (q) read as follows –
‘’ Misconduct.—(1) Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she—
(f) unjustifiably prejudices the administration, discipline or efficiency of the Department of Basic Education, an office of the State or a school or adult learning centre;
(q) while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner’’
83. The applicant was charged with failing to submit a Grade 6 History paper for pre-moderation (18(1) (f), causing Grade 6 learners to write a History paper that was not pre-moderated (18(1) (q) and instructing an intern Ms. Potsane to construct a Grade 6 History examination cover page by using a Grade 6 moderated Geography cover to create the impression that the History paper was moderated whilst it was not (18(1) (q).
84. The actions of the applicant clearly ‘unjustifiably prejudices the administration, discipline or efficiency of the Department’’ and amounts to conducting himself ‘’ while on duty in an improper, disgraceful or unacceptable manner’’.
85. The applicant, an educator for more than two decades of which one decade was as Deputy Principal, had a duty to act in the best interest of the respondent, Pitseng Primary School and the learners entrusted to his care. He had to be a shining example of integrity and conscientious. This he sadly was not.
86. In a country such as South Africa were learners are more often than not subjected to inferior education, such conduct cannot be accepted.
87. The applicant testified that during his time at Pitseng the learners increased and that ‘’parents and children were happy’’.
88. This might be true but does not excuse or exonerate his misconduct.
89. As senior educator and Deputy Principal the conduct expected from the applicant must be above reproach.
90. The applicant failed to comply with rules, he was a party to, by failing to submit his History paper for pre-moderation. He showed no remorse for his actions but blamed others by stating that there was a plot against him, claimed he knew nothing and added his health to the mix, in order to shift blame or exonerate himself.
91. His actions in instructing a clerk to type a cover page to create the impression the paper was moderated, is dishonest and deceitful. The applicant further shifted the blame for the non-submission of the paper to one Tshidi, whom he failed to call. The evidence that the applicant failed to submit a paper for pre-moderation during the first term, was not disputed. Although not charged with this, it clearly shows a person with no respect for rules. As educator, one would expect a respect for such. It is also clear that the negative consequences that was created by this, did not deter the applicant from repeating same.
92. The importance of rules in the workplaces regulating conduct to ensure that the administration, discipline or efficiency of the respondent is not prejudiced speaks for itself. So does the rule that requires proper and acceptable conduct.
93. In considering the totality of circumstance and the quoted cases it is my view that the applicant is guilty of the charges levelled against him and I am satisfied that the sanction of dismissal was appropriate.
94. If also needs to be determined if the dismissal procedurally fair.
95. Schedule 8 of the LRA sets down the following guidelines for a procedurally fair hearing.
• Notice of the charge;
Reasonable time to prepare a response;
Employee entitled to state a case in response/ to assistance;
• Informed of the decision and the reasons therefore.
96. These requirements are embodied in the respondent’s own procedures.
97. It was common cause that the applicant was dismissed in absentia.
98. The crux of the evidence rendered on behalf of the respondent by Ms Emily Magadla, who acted as the chairperson, was that the hearing was scheduled on the 16th and 23rd of September 2020.
99. She stated that the applicant was not present, did not apply for postponement, failed to provide a reason for his absence, submitted no medical certificates and failed to send a representative on his behalf to explain his absence, provide the necessary proof and to ask for postponement.
100. Ms. Magadla stated that the hearing of the 16th was postponed to the 23rd to allow the applicant an opportunity to appear. She also submitted that at the hearing of the 16th she was informed by the initiator that the applicant indicated during a pre-trail held on the 9th of September that he might apply for co-morbidity leave, proof of which was never submitted. She further stated that on the 23rd of September all employees on co-morbidity leave had been recalled as per a memorandum due to the change in the lockdown levels.
101. Ms. Magadla testified that on the 23rd she was informed by the initiator that the applicant was seen at the office about an hour before the hearing was to start, in order to serve a protection order.
102. The evidence of this witness was also not destroyed during cross-examination nor shown to be improbable, contradictory or inconsistent.
103. The applicant testified that his health issues started during 2011.
104. He admitted being served with the notice to attend the hearing and as a result attended a pre-hearing on the 9th of September 2020 where he handed Ms Mokoena the document marked ‘’H’’ and requested her to hand it in at the hearing on the 16th of September 2020. She however, rejected the document and said it was not authentic, handwritten and not from a doctor.
105. The applicant stated that it was ‘’was difficult to continue due to the new disease’’.
106. Annexure H in the respondent’s bundle is a handwritten document purporting to be from ‘’Doctor Yava Kalula & Associates’’. It is undated, states that during a consultation the applicant showed hypertension stage II. It does not book the applicant off for any period of time and H1 [also handwritten and undated] shows a script.
107. The applicant stated that he then approached the doctor who explained to him that the letter was handwritten as he ‘’ran out of letterheads’’. The doctor then gave him a letter on a letter head [bundle A page 3].
108. This doctor was not called to corroborate this explanation. When asked during cross-examination whether the doctor would be called as the medical certificates amount to hearsay, the applicant said ‘’you can call him’’.
109. The document on page 3 bundle A is also from ‘’Doctor Yava Kalula & Associates’’ and is dated the 14th of October 2020. It now ‘’gives him leave from 2020-09-10 to 2020-10-05’’
110. The applicant claimed that he ‘’understood’’ that things ‘’would not go well and would be serious if the medical certificate is rejected’’ and he then ‘’prioritised my own health’’ and consulted a doctor who issued a new letter [A3] which he submitted. He claimed that it was his understanding that this was a valid sick note and that the hearing would not continue only to find that he was dismissed on the day he was in hospital.
111. The applicant further submitted that he intended to apply for co-morbidity leave but did not do so as he was covered by the sick note – of which everyone was aware – until the 5th of October 2020.
112. No proof was submitted to whom, how and when this document was submitted. Ms. Magadla submitted that no medical certificate including the one shown in A3 was submitted during the hearing.
113. The applicant was subjected to extensive cross-examination regarding this document. It was put to him that it is dated the 14th of October 2020 and that the booking off is backdated to the 10th of September 2020 to the 5th of October 2020. The applicant explained that the document was ‘re-written’’ as the doctor had no letter heads when he gave him the first letter that Ms Mokoena rejected on the 9th of September 2020.
114. The applicant stated during cross-examination that he did not attend the hearing on the 23rd of September 2020 as he was ill and admitted to hospital. When asked he stated that this was done as per the certificate on page 44 bundle A.
115. This certificate however, books him off from the 6th of October 2020 until the 13th of October 2020 thus after the hearing was held.
116. The applicant was asked during cross-examination with reference to the protection order he obtained how, if he was ill, was he able to apply for this on the 22nd of September 2020 but too ill to attend the hearing on the 23rd of September 2020. The applicant submitted that the process at the police was not a hearing, took one day and was not exhausting like a hearing where one ‘’has to use one’s own mind’’. This might be, but the applicant could still have attended the hearing, produced a medical certificate and asked postponement. He could also have requested another to do so on his behalf.
117. It is clear that the applicant did not attend the hearings on the 16th and 23rd of September 2020 and he provided no medical certificates to show he was booked off.
118. The certificate he claimed booked him off is suspicious. It is dated the 14th of October 2020 and retrospectively books the applicant off for the period from the 10th of September 2020 to the 5th of October 2020.
119. The applicant’s contention that he had a valid medical certificate that ‘’everyone knew off’ was not supported by proof as to whom it was given to, when or how it was done.
120. His explanation regarding the letter head issue was not supported in any way.
121. It is thus my view that the respondent proceeded in absentia in circumstances that allowed them to do so and as such the dismissal was procedurally fair.
Award
122. I therefore make the following award:
“The dismissal of the applicant, Michael Sepule Sethokga was substantively and procedurally fair.
The case is dismissed.
DATED AT PRETORIA ON THIS 28th DAY OF APRIL 2021
Council Commissioner
Commissioner: E Maree
Date of Award: 28 April 2021
In the ARBITRATION between
Michael Sepule Sethokga
(Applicant)
And
Department of Education-Gauteng
(Respondent
Details of hearing and representation
1The arbitration regarding an alleged unfair dismissal, referred in terms of section 191 of the Labour Relations Act 66 of 1995 (as amended), the ‘’LRA’’ was heard on the 10th of March 2021 and the 6th of April 2021 and was conducted via ZOOM.
2. The applicant was represented by Mr. C. Levin an attorney from Clifford Levin Incorporated while the respondent was represented by Ms. I. Ntombeni, the Assistant Director: Dispute Directorate.
3. The arbitration was electronically recorded, and handwritten notes were taken.
Issues to be decided
4. I must determine if the dismissal of the applicant was substantively and procedurally fair and to determine appropriate relief in the event of a finding of unfairness.
5. The applicant disputed the contravention of workplace rules and the procedural fairness of the dismissal that was held in absentia.
Background to the dispute
6. The applicant was dismissed on the 27th of October 2020 subsequent to a disciplinary hearing relating to misconduct on charges of failing to submit a Grade 6 History paper for pre-moderation, causing Grade 6 learners to write a History paper that was not pre-moderated and instructing an intern Ms Potsane to construct a Grade 6 History examination cover page by using a Grade 6 moderated Geography cover to create the impression that the History paper was moderated whilst it was not.
7. An appeal was lodged on the 25th of November 2020 that was turned down on the 21st of January 2021 where after the dispute was referred to the Council.
8. The applicant seeks reinstatement.
9. The applicant submitted bundle A and the respondent bundle B. The bundles were properly exchanged via e-mail prior to the arbitration commencing. Bundle B was not disputed but pages 45 and 46 of bundle A were contested.
Survey of evidence and argument
The LRA requires that brief reasons be given in an award, therefore the following is a summary of the relevant evidence given under oath and submissions made in argument all of which is not reflected in this award but had nevertheless been taken into account.
Respondent’s evidence
10. The respondent called four witnesses in order to prove, on a balance of probabilities, that the dismissal was substantively and procedurally fair.
11. The first witness Mr. Tsietsi Maseko testified that he is the Principal at Pitseng Primary School where the applicant was employed as the Deputy Principal and as such reported directly to him. Mr Maseko stated that as Chief Accounting Official he is responsible for the school, thus oversees processes and must ‘’know what is going on in the school.
12. The applicant was the curriculum manager and a member of the school assessment team and was responsible for assessments, compiling the management plan on how to do assessments and initiating educators. The applicant chaired meetings where amongst others the assessment plan was compiled and the role of educators during assessments was explained.
13. Mr. Maseko submitted that the applicant drafted the evaluation plan regarding general assessments and one of the items on such plan is the dates on which submissions of papers must be made to the Head of the Department [HOD] before such paper is written. The examination management plan [Bundle B – J-J1] gives directions on how the examination will unfold. It shows the dates on which examination papers must be submitted at the HOD for pre-moderation.
14. Charge 1 alleges that the applicant [who taught Social Sciences that consists of History and Geography] failed to submit the Grade 6 History paper for pre-moderation to the HOD that had to be done as per the management plan during 6 to 10 May.
15. Mr Maseko stated that he [as was his duty as Chief Accounting Officer] continuously made follow ups with the HOD regarding the progress with the moderation and that he was aware that the applicant had not yet submitted 2 papers for moderation. During the first term the applicant gave a paper to learners that was substandard and caused a dispute that necessitated the intervention of the district. As he wanted to avoid another incident he instructed Ms Pooe, the HOD to follow up with the applicant to ensure that he submit his papers for pre-moderation to ensure it is on standard. Ms Pooe informed him subsequently that the applicant failed to submit his papers for pre-moderation and he instructed her to draft the circular [K1] dated the 24th of May 2019 to remind the applicant. Due to this incident the relationship between the applicant and Ms Pooe was strained and she offered to arrange a support session between the applicant and the management team to better relations but the applicant failed to attend even after it was rescheduled to another date.
16. Despite receiving the circular, the applicant did not submit papers for pre-moderation to the HOD [Ms Pooe] to whom he directly reported regarding curriculum matters. As HOD Ms Poee must pre-moderate all papers
17. The working relationship with the applicant was ‘’not an easy one’’ as the applicant is ‘’difficult’’ to work with, does not follow instructions ‘’easily’’ and ’’questions everything’’.
18. Bundle B - N – N9 show the school assessment policy that is related to charge 1. Learners cannot write papers that had not been pre-moderated by the HOD to ensure it is on standard.
19. Mr. Maseko submitted that the 11th of September 2020 was the last time the applicant was at school and indicated he was going to apply for co-morbidity leave but he informed him the applications for such were closed. According to Mr Maseko he sent a message to the applicant on the 17th of September 2020 indicating that his absence is unauthorised and that he had no documents to show if he was ill or not. The applicant responded indicating he was ill but that he does not have documents. He indicated to the applicant that he needs documents as he had to arrange for a substitute educator. The applicant informed him that he would submit same the next day and would apply for leave, but never did. He sent a message to the applicant on the 1st of October 2020 informing the applicant that he was on unauthorised leave and still has no documents and the applicant indicated he would submit same the next day but never did.
20. During the time the applicant wanted to apply for co-morbidity leave, the country moved to lockdown level 1 and all educators who were on such leave, were recalled and new applications were not considered.
21 Mr Maseko submitted that charge 2 is ‘serious’’ and a contravention of the assessment policy and management plan. If learners are allowed to write papers that were not moderated and are substandard, they are negatively affected due to not being prepared to meet learning challenges of the next term or year. The paper was substandard as question 5 contained the same technique as question 2 and question 6 refers to ‘’the case study below’’ but it was not ‘’below’’ or attached.
22. Mr Maseko submitted regarding charge 3 that Ms Poee confirmed that the applicant’s paper was not moderated despite the paper showing it was moderated by her. The applicant approached, Lerato, who at that stage worked as administrative intern and instructed her to make a copy of the paper that was not questioned as he normally gave instructions to interns.
23. The second witness, Ms Lerato Potsane stated that she was an administration clerk at Pitseng Primary School during 2019.
23. Ms Potsane submitted that the applicant approached her on the 23rd of May 2019 and handed her a draft history paper to type, which she did. On the 27th of May 2019 she ‘’added a few things’’ to the paper, printed it and handed it to the applicant.
24. She stated that the applicant approached her later that day and instructed her to type the cover page. She then approached the applicant who was in the staff room with two other educators, stapling Geography examination papers, and she indicated she does not have the cover page for the History paper on her lap top and asked him for an example in order to type the cover page and he then handed her the cover page for the Geography paper.
25. She then went to the office to type the cover page but before she was done, the applicant approached her and told her to ‘’copy and paste’’ by using the stamp and signature of the HOD on the Geography paper [I5] and to copy and paste it onto the History paper [I2].
She thus typed the word ‘’history’’ then cut it out from the paper with scissors and used glue to past it over the word ‘’geography’ on the cover paper that the applicant handed to her. This resulted in I2.
26. Ms Potsane stated that she then realised that there is a stamp and a signature and when pointing this out to the applicant and saying that it cannot be used as it was not moderated, and saying that she would rather type a new cover page, was told by the applicant ‘’it is fine, I will use it like this’’.
27. Ms Poee then discovered the paper that had her stamp and signature and ‘’was surprised’’ by this as she had not seen it.
28. The third witness Ms Mamake Poee testified that she is the HOD and as such was responsible to moderate the examination papers of the applicant. She did not receive his History paper for moderation and wrote him a letter [K1] on the 24th of May 2019 to remind him which letter he signed for. Despite the letter the applicant failed to submit the History paper.
29. She realized on the 30th of May 2019 that learners would write a history paper on the 31st of May 2019 that was not moderated. The applicant was absent on the 30th of May 2019 and she thus went to the staff room to find the paper and the realised that what purported to be her stamp and signature was not affixed by her, as she had not moderated the paper. She moderated, signed and stamped the Geography paper [I5] but the History paper [I2] was not moderated by her despite her signature and stamp.
30. The applicant was absent on the 30th and 31st of May 2019 but as he reported to the Principal she does not know the reason for his absence. The applicant only reported to her regarding curriculum issues for his subject, Social Sciences.
31. She approached the Principal to take action regarding the issue surrounding the History paper.
32. The fourth witness, Ms Emily Magadla testified that she acted as the chairperson of the applicant’s disciplinary hearing.
33. The hearing was scheduled for the 16th of September 2020 but did not proceed due to the absence of the applicant and was postponed to the 23rd of September 2020 on which date the applicant was also absent, despite having been given notice of the new date. No reasons or proof [such as medical certificates] for the applicant’s absence where provided nor did a representative appear on his behalf to offer an explanation on any of these days.
34. According to Ms Magadla she was informed by the initiator that the applicant, during a ‘’pre-trial’’ that was held on the 9th of September 2020, indicated that he would not attend the hearing as he intended to apply for co-morbidity leave. However, on the dates [16 and 23] when the hearings were scheduled no such proof was provided. The initiator called the applicant in her presence but he did not answer his phone upon which she called the applicant from her cell phone, but he did not answer.
35. Ms Magadla stated that she was informed by the initiator at the hearing of the 23rd of September that the applicant was at the office about an hour before the hearing was to start to deliver a restraining order against Mr Mokoena and Ms Poee, where after he left. Due to this order, the notice for the hearing of the 23rd of September was served at the applicant’s house and due to his absence, was served on his tenant around the 18th of September 2020.
36. The hearing then proceeded in his absence on the 23rd of September 2020. At this time there was also a memorandum from the HOD that all employees on co-morbidity leave, must return to the workplace due to the change in lockdown levels. It is also clearly stated on the notification that a hearing would proceed in absentia if there is no valid reason for the absence.
Applicants’ evidence
37. On behalf of the applicant Mr. Michael Sepule Sethokga testified that he commenced employment with the respondent during 1998 as educator and rendered duties as such at Pitseng Primary School since around 2009/2010 where he was also the Deputy Principal.
38. Mr. Sethokga submitted that during 2011 he ‘’fell ill with diseases’’ that eventually led to being hospitalised after consulting a medical practitioner.
39. It was stated that he acted as Deputy Principal and that the number of learners increased from around 490 to 960 and due to securing sponsors, the school now has a library. Learners and parents were happy but it caused friction with the leadership
40. Since 2012 he ‘’was ambushed left, right and centre’’, and currently the Principal is brought in to ‘’destroy’’ his career. When this failed, head office and administrative personnel was brought in. It is his view that the district official ‘’connived’’ against him that includes ‘’the one at labour’’.
41. He was the Deputy Principal and responsible for Grades 6 and 7 and is responsible for overseeing the dates and compilation of question papers that he would then hand to the administration team. He would hand the papers to Tshidi at the administration team and she would hand it to the HOD for moderation and the stamp.
42. ‘’I5’’ shows the date he gave it to the admin clerk to type, the HOD approved it and he ‘’knows nothing of cut and paste’’ and he only heard of this after being charged. He gave it to Tshidi to type and to then hand it to the HOD to moderate. Thereafter copies are made and handed to him in the staff room where he was the chief examiner.
43. ‘’I3’’ question 6 refers to ‘’the case study below’’ which was at the back of the paper. He had been doing this for 10 years and this was the first time it was challenged.
44. During 2019 was the ‘’start’’ of his ‘’mental issues’’. He consulted a doctor and uses medication for hypertension that could lead to stress. This was the cause of the delay regarding the papers in 2019. He is currently using tablets on a daily basis. He has high blood pressure that could lead to heart failure or a stroke and he thus reduced his pace.
45. ‘’K1’’ was submitted albeit late and as it was valid was written by the learners.
45. He was served with the notice to attend the hearing [A1] on the 18th of September 2020 at school and responded to it [A3]. He attended the pre-hearing on the 9th of September 2020 and gave the presiding officer, Ms Mokoena the document marked ‘’H’’ and requested her to hand it in at the hearing on the 16th of September 2020. He indicated that it ‘’was difficult to continue due to the new disease’’. Ms Mokoena rejected the document and said it was not authentic, handwritten and not from a doctor.
45. According to Mr. Sethokga he then approached the doctor who explained to him that the letter was handwritten as he ‘’ran out of letterheads’’. The doctor then gave him a letter on a letter head [bundle A page 3/bundle B ‘H’].
46. Mr. Sethokga stated that he ‘’understood’’ that things ‘’would not go well and would be serious if the medical certificate is rejected’’ and he then ‘’prioritised my own health’’ and consulted a doctor who issued a new letter [A3] which he submitted. It was his understanding that this was a valid sick note and that the hearing would not continue only to find that he was dismissed on the day he was in hospital.
47. He obtained a protection order due to ‘’lots of harassment by district officials’’. They were at his home and demanded that he came out and then harassed his wife, children and tenant. He did not serve the order that was done by the Police.
48. He intended to apply for co-morbidity leave but did not do so as he was covered by the sick note – of which everyone was aware – until the 5th of October 2020 [A3].
Analysis of evidence and Arguments
49. Section 192(1] of the Labour Relations Act 66 of 1995 as amended (LRA) places the onus on an applicant to establish the existence of the dismissal, which in this matter was common cause.
50. Section 192(2) requires that the respondent must prove that the dismissal was substantively and procedurally fair.
51. The LRA, in schedule 8, sets out the guidelines for a fair dismissal. Item 7 specifically refers to misconduct and states as follows:
“Any person who is determining whether a dismissal for misconduct is unfair should consider -
(a) Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
(b) if a rule or standard was contravened whether or not-
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have been aware of the rule or standard;
(iii)] the rule or standard has been consistently applied by the employer and;
(iv) dismissal was an appropriate sanction for the contravention of the rule or standard. “
52. The applicant was charged in terms of section 18 (1) (f) and (q) of the Employment of Educators, Act 76 of 1998 as amended, the EEA.
53. The existence of the rule/s as contained in the Act were not disputed by the applicant. The only substantive issue thus to be dealt with is that contained in item 8(7) (a). The remainder of the substantive issues (item 8(7) (b) (i – iv) were not placed in dispute.
54. The respondent thus had to prove, on a preponderance of probabilities that the workplace rules were contravened and that the procedure followed was fair.
55. The crux of the respondent’s case was that the applicant failed to submit the History Paper for Grade 6, to the HOD, Ms Pooe, for pre-moderation, on the date as set out in the examination management plan, as drafted by the management team.
56. It was stated that the applicant as Deputy Principal and curriculum manager was amongst other duties involved in and responsible for this plan, and thus fully aware of the dates therein, and his responsibilities regarding the pre-moderation process.
57. Ms. Pooe submitted that she wrote a letter to the applicant [that he signed for] that the paper was not submitted to her for pre-moderation. She stated during cross-examination that the procedure for pre-moderation entails that the examination papers are submitted to her, by the educator where after she sends the papers to the clerks to be typed and that it was not the duty of the clerk to give the papers to her. This was not disputed nor was the submission that the applicant put the process/policies in place.
58. The applicant’s version regarding the process – that is in contrast to that of Ms Pooe – was that he would hand the paper to the clerk to type where after the clerk would hand the paper to the HOD for pre-moderation. This process was not put to Ms Pooe as being the one followed, during cross-examination, other than stating that the typed version [that the applicant claimed he gave to Tshidi to type] was submitted to Ms Pooe.
59. Ms. Potsane, who was an administration clerk at Pitseng Primary School during 2019 testified that the applicant handed her a draft History paper to type which she did, printed and handed to the applicant.
60. Ms Potsane stated that she asked the applicant for an example of the cover page, as she did not have one on her lap top. The applicant then handed her the cover page of the Geography paper and he told her to do a ‘’copy and paste’’ which entailed typing the word ‘History’, cutting it out and pasting it with glue on to the Geography paper, thus pasting the word History’ over the word ‘Geography’.
61. The end result of this was that it created the impression that the History paper was moderated as the stamp and signature of the HOD then appeared on the ‘’History’’ paper cover page that in fact was the cover page of the Geography paper.
62. Ms Potsane stated that she was approached by the HOD, Ms Pooe regarding this paper when she [HOD] saw it and realised she had not pre-moderated it despite her stamp and signature appearing on it. It was also submitted by Ms Potsane that she approached the applicant about this issue and pointed out to him that the History paper was in fact not pre-moderated but was told by the applicant ‘’no it is fine, I will use it like this’’.
63. Evidence was led that the paper was below standard and contained a question that was based on a case study that was referred to in the questions as ‘’the case study below’’. It was submitted, with reference to the paper that no case study was contained in the paper.
64. The applicant countered – without providing any support for the contention – that the case study was at the back of the question paper. He was confronted with this issue during cross-examination, and stated that he was barred from obtaining such paper at the school to support his case. Even if the applicant’s version is to be accepted, namely that the case study was at the back of the paper, one would expect then that the question would refer to the ‘’case study at the back of the paper’’.
65. The applicant upon a question of clarity regarding this aspect indicated that no attempts were made to obtain such paper either with a subpoena or by virtue of the Council rules.
66. The evidence of Ms Pooe that she sent the applicant a written reminder of the outstanding History paper –that he signed for – was not disputed. It was in fact accepted during the cross-examination of Ms Pooe that he received such reminder and only realised then that there was an issue as he ‘’thought’’ it was submitted for pre-moderation.
67. One would expect of an educator, Deputy Principal and a person intimately involved with the arrangements such as the applicant was, regarding pre-moderation to ensure that one’s own paper is indeed submitted for such process. This is if the applicant’s version of the process is accepted namely that he gives it to the administration clerk to type and such clerk then submits the typed version to the HOD.
68. As stated this process as the applicant claimed existed was not put to Ms Pooe nor was her version of the process disputed. In any event it cannot be expected of a clerk to fulfil a function that is clearly that of an educator.
69. The applicant testified that the History paper was submitted albeit late and as it was valid was written by the learners. It was put to the applicant during cross-examination that the evidence of Ms Pooe was that she had not received said paper for pre-moderation. To this the applicant respondent ‘’how would I know I am not Pooe’. He repeated his evidence that he gave the paper to Tsidi to type who then handed it to Ms Pooe. When asked if he would call Tsidi to testify to support this version, the applicant said ‘’no, why would I call her?’’
70. These are but two examples of the arrogant manner in which the applicant answered questions. The applicant did not impress as a witness and was constantly arrogant, argumentative and rude, he continuously interrupted the respondent’s representative and asked counter questions to most of the questions put to him. His demeanour, tone of voice and counter questions varied between arrogant and bordered on insulting.
71. Ms Potsane rendered damning evidence against the applicant regarding the cover page that she ‘’cut and paste’’ to create the impression that the History paper was pre-moderated. Although her version was disputed during cross-examination, it was not destroyed, shown as improbable or that it was not the truth. She continuously confirmed that she was instructed to do this by the applicant, the Deputy Principal, conceded that such amounts to fraud and that she was not disciplined for her part in the incident.
72. The applicant denied during evidence that he instructed Ms Potsane to ‘’cut and paste’’ and re-iterated that he gave the paper to Tshidi - who was not called to support this version – to type. When asked during cross-examination why Ms Potsane would lie, the applicant stated ‘’I want to know from her why’’. It was put to him that Ms Potsane was not asked about this issue during cross-examination. The applicant then threw his attorney under the proverbial bus and said ‘’ I gave the responsibility to my attorney’’.
73. The applicant’s version broadly stood on three legs and varied between a bare denial, a plot against him that involves colleagues at the school up to the Departmental officials, Head Office and his health.
74. The applicant testified that he submitted the History paper, albeit late, gave it to Tsidi to type who handed it to the HOD, knows nothing of ‘’cut and paste’’ and did not submit a substandard paper as the case study was at the back of the paper.
75. Tshidi was not called to confirm this version and that of Ms. Potsane was not shown as improbable. There was also no support for the contention that the case study was at the back of the paper. Even if it was, the question does not state that.
76. The evidence of the respondent’s witnesses were not destroyed during cross-examination and thus stands as probable.
77. These witnesses even under severe cross-examination remained firm in their evidence, did not contradict themselves or the others and re-iterated what they testified to during evidence in chief.
78. The version presented on behalf of the respondent is inherently probable and the charges thus proven.
79. In Sidumo v Rustenburg Platinum Mines Ltd & Others (2007) 28 ILJ 2405 (CC) the court stated as follows in paragraphs 78 & 79:
(78) In approaching the dismissal dispute impartially a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long service record. This is not an exhaustive list.
(79) To sum up. ’In terms of the LRA a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision, a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances’’.
80. In Department of Home Affairs and another v Ndlovu and others (2014) ILJ 3340 (LAC) it was held that in order to prove that the sanction of dismissal was appropriate the employer must present evidence to prove the breakdown in the employment relationship. Such evidence is not necessary where the breakdown is apparent from the nature of the offence and or the circumstances.
81. The applicant was charged with contravening sections 18(1) (f) and (q) of the Educators Act.
82. Sections 18(1) (f) and (q) read as follows –
‘’ Misconduct.—(1) Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she—
(f) unjustifiably prejudices the administration, discipline or efficiency of the Department of Basic Education, an office of the State or a school or adult learning centre;
(q) while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner’’
83. The applicant was charged with failing to submit a Grade 6 History paper for pre-moderation (18(1) (f), causing Grade 6 learners to write a History paper that was not pre-moderated (18(1) (q) and instructing an intern Ms. Potsane to construct a Grade 6 History examination cover page by using a Grade 6 moderated Geography cover to create the impression that the History paper was moderated whilst it was not (18(1) (q).
84. The actions of the applicant clearly ‘unjustifiably prejudices the administration, discipline or efficiency of the Department’’ and amounts to conducting himself ‘’ while on duty in an improper, disgraceful or unacceptable manner’’.
85. The applicant, an educator for more than two decades of which one decade was as Deputy Principal, had a duty to act in the best interest of the respondent, Pitseng Primary School and the learners entrusted to his care. He had to be a shining example of integrity and conscientious. This he sadly was not.
86. In a country such as South Africa were learners are more often than not subjected to inferior education, such conduct cannot be accepted.
87. The applicant testified that during his time at Pitseng the learners increased and that ‘’parents and children were happy’’.
88. This might be true but does not excuse or exonerate his misconduct.
89. As senior educator and Deputy Principal the conduct expected from the applicant must be above reproach.
90. The applicant failed to comply with rules, he was a party to, by failing to submit his History paper for pre-moderation. He showed no remorse for his actions but blamed others by stating that there was a plot against him, claimed he knew nothing and added his health to the mix, in order to shift blame or exonerate himself.
91. His actions in instructing a clerk to type a cover page to create the impression the paper was moderated, is dishonest and deceitful. The applicant further shifted the blame for the non-submission of the paper to one Tshidi, whom he failed to call. The evidence that the applicant failed to submit a paper for pre-moderation during the first term, was not disputed. Although not charged with this, it clearly shows a person with no respect for rules. As educator, one would expect a respect for such. It is also clear that the negative consequences that was created by this, did not deter the applicant from repeating same.
92. The importance of rules in the workplaces regulating conduct to ensure that the administration, discipline or efficiency of the respondent is not prejudiced speaks for itself. So does the rule that requires proper and acceptable conduct.
93. In considering the totality of circumstance and the quoted cases it is my view that the applicant is guilty of the charges levelled against him and I am satisfied that the sanction of dismissal was appropriate.
94. If also needs to be determined if the dismissal procedurally fair.
95. Schedule 8 of the LRA sets down the following guidelines for a procedurally fair hearing.
• Notice of the charge;
Reasonable time to prepare a response;
Employee entitled to state a case in response/ to assistance;
• Informed of the decision and the reasons therefore.
96. These requirements are embodied in the respondent’s own procedures.
97. It was common cause that the applicant was dismissed in absentia.
98. The crux of the evidence rendered on behalf of the respondent by Ms Emily Magadla, who acted as the chairperson, was that the hearing was scheduled on the 16th and 23rd of September 2020.
99. She stated that the applicant was not present, did not apply for postponement, failed to provide a reason for his absence, submitted no medical certificates and failed to send a representative on his behalf to explain his absence, provide the necessary proof and to ask for postponement.
100. Ms. Magadla stated that the hearing of the 16th was postponed to the 23rd to allow the applicant an opportunity to appear. She also submitted that at the hearing of the 16th she was informed by the initiator that the applicant indicated during a pre-trail held on the 9th of September that he might apply for co-morbidity leave, proof of which was never submitted. She further stated that on the 23rd of September all employees on co-morbidity leave had been recalled as per a memorandum due to the change in the lockdown levels.
101. Ms. Magadla testified that on the 23rd she was informed by the initiator that the applicant was seen at the office about an hour before the hearing was to start, in order to serve a protection order.
102. The evidence of this witness was also not destroyed during cross-examination nor shown to be improbable, contradictory or inconsistent.
103. The applicant testified that his health issues started during 2011.
104. He admitted being served with the notice to attend the hearing and as a result attended a pre-hearing on the 9th of September 2020 where he handed Ms Mokoena the document marked ‘’H’’ and requested her to hand it in at the hearing on the 16th of September 2020. She however, rejected the document and said it was not authentic, handwritten and not from a doctor.
105. The applicant stated that it was ‘’was difficult to continue due to the new disease’’.
106. Annexure H in the respondent’s bundle is a handwritten document purporting to be from ‘’Doctor Yava Kalula & Associates’’. It is undated, states that during a consultation the applicant showed hypertension stage II. It does not book the applicant off for any period of time and H1 [also handwritten and undated] shows a script.
107. The applicant stated that he then approached the doctor who explained to him that the letter was handwritten as he ‘’ran out of letterheads’’. The doctor then gave him a letter on a letter head [bundle A page 3].
108. This doctor was not called to corroborate this explanation. When asked during cross-examination whether the doctor would be called as the medical certificates amount to hearsay, the applicant said ‘’you can call him’’.
109. The document on page 3 bundle A is also from ‘’Doctor Yava Kalula & Associates’’ and is dated the 14th of October 2020. It now ‘’gives him leave from 2020-09-10 to 2020-10-05’’
110. The applicant claimed that he ‘’understood’’ that things ‘’would not go well and would be serious if the medical certificate is rejected’’ and he then ‘’prioritised my own health’’ and consulted a doctor who issued a new letter [A3] which he submitted. He claimed that it was his understanding that this was a valid sick note and that the hearing would not continue only to find that he was dismissed on the day he was in hospital.
111. The applicant further submitted that he intended to apply for co-morbidity leave but did not do so as he was covered by the sick note – of which everyone was aware – until the 5th of October 2020.
112. No proof was submitted to whom, how and when this document was submitted. Ms. Magadla submitted that no medical certificate including the one shown in A3 was submitted during the hearing.
113. The applicant was subjected to extensive cross-examination regarding this document. It was put to him that it is dated the 14th of October 2020 and that the booking off is backdated to the 10th of September 2020 to the 5th of October 2020. The applicant explained that the document was ‘re-written’’ as the doctor had no letter heads when he gave him the first letter that Ms Mokoena rejected on the 9th of September 2020.
114. The applicant stated during cross-examination that he did not attend the hearing on the 23rd of September 2020 as he was ill and admitted to hospital. When asked he stated that this was done as per the certificate on page 44 bundle A.
115. This certificate however, books him off from the 6th of October 2020 until the 13th of October 2020 thus after the hearing was held.
116. The applicant was asked during cross-examination with reference to the protection order he obtained how, if he was ill, was he able to apply for this on the 22nd of September 2020 but too ill to attend the hearing on the 23rd of September 2020. The applicant submitted that the process at the police was not a hearing, took one day and was not exhausting like a hearing where one ‘’has to use one’s own mind’’. This might be, but the applicant could still have attended the hearing, produced a medical certificate and asked postponement. He could also have requested another to do so on his behalf.
117. It is clear that the applicant did not attend the hearings on the 16th and 23rd of September 2020 and he provided no medical certificates to show he was booked off.
118. The certificate he claimed booked him off is suspicious. It is dated the 14th of October 2020 and retrospectively books the applicant off for the period from the 10th of September 2020 to the 5th of October 2020.
119. The applicant’s contention that he had a valid medical certificate that ‘’everyone knew off’ was not supported by proof as to whom it was given to, when or how it was done.
120. His explanation regarding the letter head issue was not supported in any way.
121. It is thus my view that the respondent proceeded in absentia in circumstances that allowed them to do so and as such the dismissal was procedurally fair.
Award
122. I therefore make the following award:
“The dismissal of the applicant, Michael Sepule Sethokga was substantively and procedurally fair.
The case is dismissed.
DATED AT PRETORIA ON THIS 28th DAY OF APRIL 2021
Council Commissioner
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