IN THE ELRC ARBITRATION
SALIPSWU on behalf of its member, Philile C Mkhize “the Applicant”
THE HEAD OF THE
DEPARTMENT OF EDUCATION – KWAZULU-NATAL “the Respondent”
Case Number: PSES965-18/19KZN
Last date of arbitration: 28 April 2021
Date of submission of closing arguments: 5 May 2021
Date of award: 12 May 2021
Education Labour Relations Council
261 West Avenue
Tel: 012 663 0452
Fax: 012 643 1601
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration commenced on 1 August 2019 and proceeded on 2 August, 19-20 September, 18 November 2019, 30-31 January 2020, 23 March 2021 and the presentation of evidence was finalized on 28 April 2021. Both parties thereafter requested and were granted permission to submit written closing arguments by no later than 5 May 2021.
2. The arbitration was held at the Amajuba District Office of the KwaZulu-Natal Department of Education.
3. SALIPSWU, a trade union, referred this dispute on behalf of its member, Philile Cynthia Mkhize (hereinafter referred to as the Applicant.) Mr Mathonsi, an official of the trade union, initially represented the Applicant. He acted for the Applicant throughout the presentation of the Respondent’s case and led the Applicant in the presentation of her evidence. When the case reconvened on 23 March 2021, however, for further cross-examination of the Applicant, I was advised that Mr Mathonsi was no longer an official of the trade union and that no other official felt confident enough to represent the Applicant at that late stage of the proceedings. In these circumstances Mr Sithebe, a legal practitioner, represented the Applicant for the balance of her cross-examination and the evidence of her two witnesses. A bundle of documents, marked exhibit B was submitted on behalf of the Applicant.
4. The Respondent, the Head of the KwaZulu-Natal Department of Education (the Department,) was represented by its employee, Ms N Magoso. A bundle of documents, marked exhibit A, was submitted on behalf of the Respondent.
5. The proceedings were digitally recorded.
6. The services of an interpreter were utilized.
TERMS OF REFERENCE AND ISSUES TO BE DECIDED
7. The arbitration is in respect of a referral by the Applicant of an alleged unfair dismissal as provided for in section 191(5)(a)(i) of the Labour Relations Act 66 of 1995 (LRA.)
8. I am required to decide is whether the dismissal of the Applicant was unfair and, if so, what relief ought to be granted to her. The Applicant seeks to be reinstated with retrospective effect. The dismissal itself is not in dispute.
9. In addition to the principal issue in dispute, I was required on two occasions to determine whether the Applicant could be represented by a legal practitioner. An application in this regard was initially brought at the commencement of the proceedings. A separate ruling in which the application was refused was issued by me. In the circumstances detailed above, Mr Sithebe, a legal practitioner, represented the Applicant towards the end of the hearing. Given the issues involved, the volume of evidence that had already been led and the unwillingness or refusal of officials of the Applicant’s trade union to take over from Mr Mathonsi, I ruled that it would be unfair to expect the Applicant to act on her own behalf and that she could be represented by a legal practitioner for the remainder of the arbitration.
8. At all material times the Applicant was the deputy principal or acting principal of the Bumbisizwe Special School. She was dismissed following a formal disciplinary hearing at which she was charged with and found guilty of the following two counts of misconduct:
8.1. Count 1-“In that on or about 8 August 2016 at or near Bumbisizwe Special School you failed to comply with the regulations or legal obligation relating to education and employment relations; in that you failed to submit proof of payment or services that were rendered for the amount of R20 000as per cheque No 10015 or cheque No 10016 for an amount of R20 000, thereby contravening section 18(1(a)) of the Employment of Educators Act 76 of 1998; and
8.2. Count 2-“In that on or about 21 July 2016 at or near Bumbisizwe Special School you committed an act of dishonesty in that you failed to submit the proof of payment for goods or services that were rendered in respect with cheque No 9998, thereby contravening section 18(1)(ee) of the Employment of Educators Act 76 of 1998.”
9. The Applicant lodged an appeal against the outcome of her disciplinary hearing but she was notified by way of a letter dated 13 February 2019 that her appeal had been rejected.
10. It is common cause that at the date of her dismissal, the Applicant’s gross monthly remuneration was R41 526.86.
11. The Applicant does not dispute that she was issued with cheques 10015 and 10016, each for R20 000 and both of which were cashed by her. She also does not dispute having received R100 000 cash from the proceeds of cheque 9998.
12. She avers that although she was initially frustrated by the school principal and governing body chairperson, she ultimately accounted for the use of the abovementioned money, which was used to meet expenses associated with:
12.1. A winter school hosted by the school. The winter school was hosted by the school on the request of the KwaZulu-Natal Department of Education (the Department.) After cheque 9998 had been cashed it is common cause that R100 000 of its proceeds was given to the Applicant who avers that the money was used to meet expenses of the winter school;
12.2. A trip to Cape Town to attend a conference hosted by SANASE; and
12.3. A trip to Port Shepstone educators of deaf children.
SUMMARY OF EVIDENCE AND ARGUMENTS
The Respondent’s case
13. Mbongani Simphiwe Vilakazi (Vilakazi) is the circuit manager responsible for the school. He knows the Applicant.
14. The school governing body, through its finance committee, is responsible for a school’s finances. Once a cheque has been issued it is the responsibility of the person to whom it is issued to submit relevant vouchers to the committee once the cheque has been spent.
15. When the Applicant had acted as principal of the school she had never mentioned to Vilakazi that she did not understand responsibilities associated with school finances.
16. Vilakazi first became aware that there were problems with the finances of the school when he received a letter from the school governing body in June 2017. The letter, at page 59 of exhibit A, is dated 13 June 2017 and addressed to the Amajuba District Director. Firstly, it was alleged in the letter that the Applicant had failed to submit any supporting vouchers in respect of two cheques, each for R20 000, which had been issued to the Applicant in order to enable her to meet expenses associated with a trip to Cape Town to attend a conference organized by SANASE. Secondly, it was alleged that the Applicant had failed to account for her portion of the funds made available by the school governing body to pay for the expenses of a winter school hosted by the school. Vilakazi had written to the Applicant on two occasions calling upon her to respond to the concerns raised in the school governing body’s letter. The first and second letters written by him are at pages 64 and 63 of exhibit A respectively. The Applicant did not respond to either letter.
17. The school governing body was unable to account to its auditors for all its expenditure as a result of the failure by the Applicant to submit vouchers.
18. Vilakazi had subsequently testified at the Applicant’s disciplinary hearing at which he had been cross-examined by her representative.
19. Under cross-examination Vilakazi testified that he had gone to the school on virtually every day of the winter school as he was responsible for overseeing education at the winter school and it was the first time that such an event had been hosted by the school. The school governing body was responsible for hosting the winter school and as such was responsible for providing the venue, accommodation and meals. It was put to Vilakazi that no guidelines had been provided for how the school governing body should act. Vilakazi could not say whether written guidelines had been given but stated that he did provide guidance to Mrs Nkosi, the school principal.
20. The Applicant ought to have submitted vouchers in respect of the first cheque of R20 000 for expenses allegedly incurred on the Cape Town trip. She ought to have returned the second cheque for R20 000 to the school governing body for it to be cancelled as it had not been required to meet expenses of that trip. When it was put to him that the Applicant had given the vouchers to the school principal, Vilakazi stated that at a meeting held with the principal and the applicant, prior to having received the letter of complaint from the school governing body (at page 59 of exhibit A,) he had stressed that the Applicant needed to produce the vouchers in respect of the Cape Town trip. The Applicant had told him that the 2016 school file, where the vouchers ought to have been filed, was missing yet she had submitted certain vouchers that ordinarily ought to have been in this file at her disciplinary hearing. The Applicant disputes that such a meeting took place.
21. It was put to Vilakazi that the Applicant had responded by way of her letter dated 30 June 2017 addressed to the circuit manager and district director to his letter, at page 64 of exhibit A, calling upon her to respond to the allegations of the school governing body. This letter of the Applicant is at page 3(b) of exhibit B. This letter had been written by her in response to the letter from Vilakazi and a letter received by the Applicant from the district director, which is at page 3(a) of exhibit B. In her letter, the Applicant, inter alia, states that “the receipts available have been given to the chairperson and principal who refused to take them.” Vilakazi has no knowledge of either of the letters at 3(a) and 3(b) of exhibit B. It was further put to Vilakazi that the Applicant had left certain vouchers in the office of the school principal, after she had refused to accept them when they were submitted by the Applicant. Similarly, the chairperson of the school governing body had refused to accept other vouchers submitted by the Applicant. This was long before Vilakazi had written to her. Vilakazi submitted that the Applicant had failed to respond to his letters in which he had called upon her to respond to the allegations of the school governing body.
22. Vilakazi maintained that the second cheque for R20 000 ought to have been cancelled after it had not been required for the purpose for which it was issued; namely, to meet the expenses of the Cape Town trip.
23. Vilakazi was not aware of bad blood existing between the Applicant and both the school principal and members of the school governing body.
24. While Vilakazi had not trained the Applicant in financial matters, he was aware that she knew how school financial affairs ought to be conducted.
25. Buhle Nxumalo (Nxumalo) was the school treasurer when the events relevant to this case occurred. She was a member of the school governing body in her capacity as a parent. She had received induction training given by the Department when she became a member of the governing body on the functions of the different committees of the school governing body and the responsibilities of a treasurer. The Applicant had assisted her in answering certain questions that she was required to answer as part of her training.
26. Nxumalo learnt of the invitation to attend a conference at Cape Town from the Applicant, who had contacted her to convene a meeting of the school governing body to discuss the invitation. At the time, the Applicant was the acting school principal. At the meeting the Applicant had read from a circular that indicated that the principal and chairperson of a school ought to attend the conference. The school governing body agreed that the school would be represented at the conference. When Nxumalo raised the issue of costs such as the costs of transport and accommodation, the Applicant had responded that she they would have to see once they got to Cape Town. Nxumalo had telephoned the principal from the meeting and she had supported the decision to attend the conference. Ultimately it was agreed by the school governing body that the budget for the trip would be R30-R40 000 and that a cheque would be issued to the Applicant. Nxumalo had initially made out a single cheque for R30 000 but she had later cancelled this cheque after been advised by the Applicant to rather make out two cheques for R20 000 each. As no quotations and the like were available it was agreed that vouchers would be submitted on their return.
27. Copies of the relevant payment advice forms and cheques for R20 000 made payable to the Applicant are at pages 22 and 23 of exhibit A. Before the Applicant had left on the trip she had informed Nxumalo that she had cashed the one cheque and that she would cash the second cheque in Cape Town if she needed the money. Both cheques had, however, been cashed at the ABSA, Newcastle branch. The Applicant had never explained why both cheques had been cashed in Newcastle.
28. After the trip Nxumalo had not received any vouchers from the Applicant. She had, however, received three vouchers totaling R300 from the chairperson of the governing body, Ndlovu, who had accompanied the Applicant. Nxumalo had suggested that Ndlovu and the Applicant submit all their vouchers together as the three submitted by Ndlovu in no way justified the amount made available to the Applicant. She had not accepted the three vouchers from Ndlovu.
29. Nxumalo had never seen the invoice from Angel Rose Bed & Breakfast (Angel Rose) at page 31 of exhibit A. (The invoice is dated 26 August 2016 for accommodation of six persons over the period 30 August-2 September 2016 and is in the amount of R7 650. It is made out to the school and is marked for the attention of the Applicant. This is a voucher put up by the Applicant as an expense incurred by her on the Port Shepstone trip.) She was aware that certain teachers who had needed to repeat a course had stayed at the Angel Rose. The Applicant was not amongst the attendees. This expense had been paid for by the school governing body. The Applicant had at some stage told her that she had paid for teachers of deaf learners to go to Durban. Nxumolo had told her that she should not have done so as that expense was covered by its own budget and that the expense had already been paid. She had received no response from the Applicant. This explanation had been given to Nxumalo when she had questioned the Applicant about how the R40 000 had been spent.
30. With regard to the winter school, Nxumalo had attended a meeting called by Vilakazi at which he had requested the school governing body to host it. The hosting of the winter school had financial implications for the school governing body and Nxumalo had misgivings as there was only about R14 000 in the governing body’s bank account. The school governing body nevertheless agreed to host the winter school and a committee that would be responsible for it, was established. The Applicant was a member of the committee. It was agreed that the committee would make use of accounts held by the school governing body with various suppliers to purchase items required for the winter school on credit. It was further agreed that the committee would provide Nxumalo with a detailed report on financial projections with regards to the winter school and that all vouchers would be provided to her.
31. Sometime after the winter school had been held, the Applicant called a meeting. She said that teachers who had assisted at the winter school were demanding that they be paid their agreed fees. She said that she knew that money had been paid into the school bank account and that Nxumulo should use this money to pay the winter school expenses. No record of expenses incurred had yet been provided. The Applicant indicated that she needed R200 000 to pay the expenses. The meeting became acrimonious but after the intervention of the principal, Nkosi, it was agreed that Nxumalo would issue a cheque for R200 000 and that she would get a breakdown of the expenses and vouchers as requested. The Applicant told her to issue the cheque in the name of Twala, a school teacher. Twala agreed as she said that she could not go against the wishes of her superior. The cheque payable to Twala is a page 32 of exhibit A.
32. No vouchers were received in support of payments made from the proceeds of the cheque for R200 000. Nxumalo approached the Applicant in this regard. The Applicant’s response was that she could not do anything as the winter school committee had not met. She had requested the Applicant to provide details on the expenditure and not the committee as it was the Applicant who had requested her to release R200 000 and who had given the undertaking that proof of payments would be provided.
33. At no time had the Applicant told her that vouchers in support of the cheques issued in her name or that of Twala, had been given to the school principal or chairperson of the governing body.
34. She had supported the decision to send the letter of complaint to the district office as the failure of the Applicant to account had led to the Department withholding funds from the school as the auditors were unable to certify the financial statements of the school governing body.
35. Under cross-examination Nxumalo testified that prior to the letter of complaint having been sent to the district office, the finance committee had requested that the school governing body meet. The entire committee had been present when the letter had been drafted, but not signed, by the secretary, Twala. It was put to Nxumalo that Twala would testify that such a meeting had not been held. Nxumalo maintained that it had been.
36. With regards to the SANASE conference in Cape Town, Nxumalo testified that she learnt of the conference when the Applicant had asked her to attend a meeting of the school governing body. She, however, denied that the agenda at page 19 of exhibit B was the agenda for that particular meeting. In particular, she denied that the matters listed on the agenda, including a report on the winter school, were discussed at the meeting. It was put to Nxumalo that the deputy chairperson, Ntombela, would confirm that the agenda at page 19 of exhibit B is the agenda of the meeting at which the SANASE Cape Town trip was approved.
37. With regards to the winter school Nxumalo agreed that Vilakazi had not provided any guidelines on how the school governing body should manage the winter school. She further agreed that the school principal had acted as convenor of the committee established to manage the winter school activities.
38. It was put to Nxumalo that the Applicant agreed that she had received R100 000 of the proceeds of the cheque issued in Twala’s name for R200 000. In this regard, it was further put to her that as the winter school committee had not met, the Applicant had accounted to the principal by providing her with vouchers but that she had refused to accept them. She had kept copies of these vouchers and had taken them to the chairperson, who had similarly refused to accept them. The Applicant had not previously said this to Nxumalo. It was, in any event, wrong for the Applicant to having taken vouchers to either the principal or chairperson as they should have been submitted to her as the treasurer.
39. It was put to Nxumalo that six people attended a sign language workshop in Durban immediately after the SANASE Cape Town trip. The Applicant had cashed the second cheque for R20 000 when she got back to Newcastle after having returned from Cape Town as she had to pay the YWCA R1 000 for having provided transport to Oliver Tambo Airport. The balance of the proceeds of this cheque was then used to meet the expenses associated with the sign language workshop. Nxumalo replied that this version was different to what the Applicant had previously told her. It was wrong for the Applicant to use money issued for the SANASE conference for another purpose and Nxumalo had said this to the Applicant when she had asked the Applicant to produce the SANASE vouchers. The Applicant had then said that she had also used some of the money for another purpose.
40. Mahosazana Twala (Twala) is an educator at the school and in 2016 she was the secretary of the school governing body.
41. She is the author of the letter of complaint (page 59 of exhibit A.) The school governing body had agreed that the letter ought to be written as the finance committee was unable to justify to its auditors the payments of R40 000 to the Applicant and the R200 000 winter school expenditure as supporting vouchers had not been submitted. The failure of the auditors to issue audited financial statements had resulted in the Department withholding funds from the school. The advice from the auditors was that funds would only be paid by the Department once audited financial statements had been issued. At the time there was only R2 000 in the school’s bank account. When members of the school governing body had visited the district office they had been advised by an official, Mr Mdlalose, that should audited financial statements not be issued legal action would be taken against the school governing body. He also advised the school governing body to write a letter to the district office.
42. Twala was a member of the winter school committee. In reality, the committee consisted of Twala and the Applicant as the other members played a minimal role for various reasons. The principal fell ill. Ms Ngobese was due to attend the sign language workshop in Amanzimtoti at the same time as the winter school and then her mother then died, so she was otherwise engaged. Ms Ntomela only arrived at the winter school on one occasion and another member was unavailable as she fell ill.
43. Twala had cashed the cheque issued in her name for R200 000 and she and the Applicant had then each taken R100 000. At this stage the educators who had taught at the winter school had not yet been paid and neither had the suppliers from whom goods had been purchased on credit. Her recollection was that the winter school had run from the end of June until 8 July 2016. (The cheque was cashed on 22 July 2016.)
44. After the cheque had been cashed the Applicant and Twala had gone to the Applicant’s office and had placed the payments due to the educators in separate packets. When Twala paid an educator she would require the educator to sign alongside the educator’s name as proof that the payment had been received. In the absence of the principal, Twala had given this form to the Applicant. Twala had also paid North City Wholesalers. Its statement, at pages 55-57 of exhibit A, indicates that an amount of R14 110.21 was due to it. She did not have an independent recollection that this was the statement paid by her, but her recollection was that the amount paid by her was similar to that reflected on the statement.
45. At page 34 of exhibit A is a letter written by educators involved with the winter school and addressed to the principal “requesting “transparency” as far as money is concerned.” The letter was aimed at Twala as much as the Applicant as they had promised to be transparent in the use of funds. At a meeting in her office also attended by Ngobese, the Applicant had agreed to reconcile all their vouchers so that they could give an informed report to the educators. This did not happen and the educators wrote a second letter to the principal, who then called both Twala and the Applicant to a meeting in her office. Tempers flared at this meeting after which the principal asked Twala to approach the Applicant for her vouchers. When Twala approached the Applicant in this regard her response was that she would not take instructions from Ngobese or the principal. She had asked the Applicant for her vouchers on more than one occasion. Twala had then, on the advice of her trade union, attested to an affidavit, which is at pages 54-58 of exhibit A, in which she details how she dealt with the proceeds of the cheque for R200 000. Attached to the affidavit are the North City Wholesalers’ statement and an invoice from Fine Cash & Carry Retail for mattresses in the amount of R7 500, which were paid by her.
46. With regards to the agenda put up at page 19 of exhibit B by the Applicant, Twala states that the only item on the agenda for that meeting was the Cape Town SANASE trip.
47. The only workshop for the deaf of which Twala knew was held in July 2016. Three educators had attended this workshop. She was unaware of any such workshop having been held and attended by educators at the school in August 2016. As a member of the school governing body she would have been informed of such a workshop.
48. Under cross-examination it was put to Twala that she was biased against the Applicant for a number of reasons. Firstly, she held the Applicant responsible for preventing her being paid a so called hostel or supervision allowance. Twala responded that her trade union had taken up this issue on her behalf and she had not relied on management and, in particular, the Applicant to take up her case. Secondly, it was put to her that she was bitter as when her contract had lapsed, the Applicant had preferred to extend the contract of a certain Ngobese and not hers. This was disputed by Twala who stated that it was only Ngobese’s contract that had lapsed at that time and not hers. Thirdly, it was put to Twala that she was biased as both she and the Applicant had applied for the post of deputy principal. This allegation was also disputed by Twala who stated that the Applicant was already deputy principal when she had applied for another deputy principal’s post at the school. It was then put to Twala that she blamed the Applicant for her failure to be appointed as head of department or deputy principal. This was again disputed by Twala who responded that the Applicant had not been on the interview panels. It was further put to Twala that she was bitter towards the Applicant as she had been paid less than her for her involvement with the winter school. This allegation was again rejected by Twala who replied that due to certain prior arrangements she could not attend everyday of the winter school and thus she well knew that she would not be paid as much as those who attended each day.
49. Twala had no independent recollection of the amounts paid to each of the educators who had worked at the winter school and thus she could not confirm that the amounts reflected in the second column of the table at page 16 of exhibit B were paid to those listed in column one of the table. She did, however, confirm that the table correctly records at row three that she had been paid R8 500. In addition to those listed on the table, Twala agreed that security personnel and school governing body members had also been paid. She agreed that it appeared as if R138 500 had been paid towards these personnel expenses. When Twala had paid any of these persons she had made use of a similar form to that at page16 of exhibit B and she had required each recipient to sign the form alongside their initials as proof of receipt. She had given her signed form to the Applicant. The principal had not signed for her payment as she was ill and the money had been transferred into her bank account. She had not paid about three of the educators and she had returned their pay packets to the Applicant. Twala confirmed her evidence in chief that they had depleted her R100 000 in allocating payments to the educators and the balance required had been made up by a contribution from the R100 000 allocated to the Applicant.
50. Twala confirmed that she had paid the North City Wholesalers account (R14 118.21) and the account for mattresses (R7 500) as reflected in the annexures to her affidavit (at pages 54-58 of exhibit B.)
51. It was put to Twala that the Applicant had paid the school’s Telkom account of R6197.40 (at page PC7 of exhibit B) as the school had no money to pay it. She could not dispute that Telkom had been paid. It was further put to Twala that the Applicant had used her money to pay the creditors Yacoobs Meat (at page PC 14 of exhibit B) and Keeways (at page A53 of exhibit A) R8 175 and R6 200 respectively. Twala could not dispute this save to note that the Kewways invoice is dated 23 July 2016, whereas the winter school finished on 8 July2016.
52. Twala conceded that in her affidavit at page 54 of exhibit B, she had stated it was the Applicant’s R100 000 and not hers that had been depleted first in making payments to personnel. In re-examination she maintained that it was her R100 000 that had been so depleted.
53. Pumzile Ndlovu (Ndlovu) had been the chairperson of the school governing body and she accompanied the Applicant to Cape Town for the SANASE conference.
54. They had travelled to O R Tambo International Airport by way of road transport provided by the YMCA. From there they had travelled on Mango Airways to Cape Town and from the Cape Town airport they had shared an Avis hired car, which the sister of the Applicant had hired, to travel to their destination. Ndlovu had stayed at the Blue Lagoon Hotel and on her first night she had shared a room with the deputy principal of the Madikazela Mandela School, after which she moved to the room that had been occupied by the Applicant’s sister. She was told that the sister had gone to stay with a friend. At all times the Applicant had the money in her possession and it was agreed that on their return the Applicant would hand over the vouchers to the finance officer of the school governing body.
55. On their return the Applicant did not hand over the vouchers to the finance officer. When she questioned the Applicant in this regard she replied that she would hand them over to the principal in her own time but had not done so as the principal was off ill. The Applicant still did not hand over the vouchers to either the finance officer or principal after the principal had returned to work. As the treasurer was demanding that the vouchers be handed over, she had pleaded with the Applicant on a number of occasions to do so. She did not do so. At some stage she had met with the Applicant who had shown her a bank money bag saying that the vouchers were in the bag. Ndlovu asked why she didn’t just hand the vouchers over as requested by the principal and finance officer. The Applicant had again responded by saying that she would give them to the principal. The Applicant had no response when it was pointed out to her that the principal had already been asking for the vouchers yet she continued to withhold them.
56. Shortly before officials from the Department were due to visit the school, the Applicant had enquired from Ndlovu whether she would be able to generate invoices. Ndlovu refused to assist the Applicant in this regard.
57. At no stage had the Applicant given any cash to Ndlovu during the Cape Town trip.
58. The Applicant had not given any vouchers to her. The only voucher submitted to the finance officer was one for refreshments of R343 that Ndlovu had submitted.
59. It was put to Ndlovu under cross-examination that immediately after their return from Cape Town her relationship with the Applicant had soured. This was caused by the Applicant rebuffing Ndlovu’ suggestion that they should share whatever money remained after the trip between themselves and conceal this misappropriation by the submission of false vouchers. This was denied by Ndlovu who stated that she had not even known whether any money was left over from the trip.
60. She had not attended the meeting at which the SANASE trip had been discussed. She had, however, been contacted from the meeting by telephone. She had been informed that it had been agreed to budget R30 000 for the trip. When they had gone to the bank to cash the cheque for R30 000 the bank had informed them that if they required the cash immediately they would need to reduce the amount to R20 000. This was done. She did not know how or why the budget was exceeded by issuing a second cheque for R20 000.
61. It was put to Ndlovu that she had been paid cash of R400 for subsistence. Ndlovu acknowledged that she had received R300 from the Applicant.
62. Ndlovu was not aware of expenses incurred in respect of the Cape Town trip. In particular, she was unaware of any teaching material having been purchased or that the gala dinner was a separate expense.
63. It was put to Ndlovu that on the day that the school principal had refused to accept the vouchers from the Applicant, Ndlovu was at the school and had been called by the Applicant to see what the principal had done. Ndlovu refused as she did not want to be seen with the Applicant and it had been agreed that they would rather meet at North City Shopping Centre. At the centre Ndlovu had got into the Applicant’s car and they had driven to an open piece of land where the bank bag containing vouchers had been shown to her. Ndlovu maintained that her version was correct, that she had not seen any report or vouchers on that day but only been shown the bank bag and at that stage the Applicant was still maintaining that she would give the vouchers to the school principal.
64. Musawenkosi Mabaso (Mabaso) is a labour relations officer with the Department and he was the presiding officer of the Applicant’s disciplinary hearing. He was the author of the outcome of the disciplinary hearing report at pages 11-18 of exhibit A.
65. On the day of the hearing the Applicant had attempted to hand in vouchers to Maboso, however, he had refused to accept them as she had been charged with having failed to submit the vouchers to the school governing body for audit purposes. As such no purpose would be served by her handing them in at the hearing. She did not state that she had handed vouchers to the principal. The Applicant had apologized at the hearing for having not submitted the vouchers in time.
66. The Applicant’s representative placed on record that he objected to Mabaso giving evidence as the Respondent had not indicated that it had intended to call him as a witness. Mabaso acknowledged that he did not have an independent recollection of all the evidence given at the disciplinary hearing and that he relied upon his notes taken at the time to refresh his memory.
67. Mabaso could not dispute that the vouchers that the Applicant had wanted to submit at the hearing, were those relevant to the charges faced by the Applicant. This refusal by him had not hampered the Applicant in the conduct of her defence by limiting her ability to explain how the money had been used, as the vouchers ought to have been given to the school governing body which could have determined whether the money had been used appropriately.
68. It was put to Mabaso that the Applicant had testified before him that she had submitted the vouchers to the principal. This was denied by Mabaso who maintained that she had said that she had wanted to speak to the principal before submitting the vouchers to the school governing body chairperson. If she submitted them to the principal, how was she then able to offer them to him at the hearing, Mabaso wanted to know. It was put to Mabaso that only copies would have been submitted to him. He responded that the Applicant had not said that she wanted to submit copies of vouchers (and not the originals) at the hearing. Mabaso was adamant that the Applicant had not testified that vouchers had been given to the principal by her.
69. Dorothy Judith Nkosi (Nkosi) had been the principal and the Applicant was her deputy at all material times.
70. The Applicant had attended a finance workshop put on by SANESE in her stead together with the school’s finance committee. She had also attended together with the finance committee a similar workshop put on by the Department. The Applicant had studied accounting and she had extensive knowledge of financial matters having worked as a finance manager. She would assist staff with general financial queries.
71. A winter school, on the request of the Department, had been held at the school from 26 June-8 July 2016. A committee consisting of herself, the Applicant, Twala and three other members of the school governing body, had been established to organize the winter school. Nkosi had only attended the winter school on its first two days as she was ill and the Applicant had led the committee in her absence.
72. It was agreed with the school governing body that school funds in the school’s bank account would be used to pay expenses that had already been incurred. The cheque for R200 000 issued in the name of Twala was cashed for this purpose.
73. The Applicant had brought R4 000 to her home to pay her whilst she was home. The Applicant had also brought food to her home during this period. There was no bad blood between them.
74. Nkosi was on sick leave at the time of the Cape Town trip and accordingly has no first hand knowledge of the events leading up to the trip other than what was said to her by the Applicant who had telephoned her to advise her of the trip and that it was expected that the school principal would attend. As she was ill, the Applicant had attended in her place.
75. With regards to the sign language workshop held for those who had previously failed a course, Nkosi testified that three educators, Ngobese, Ndaba and Moloi, had attended during July 2016. The costs of this attendance had been paid for from school funds.
76. The Applicant had not given any vouchers to her.
77. She had written to the district office as the Department would not release funds to the school until it received the school’s audited financial statements. The auditors in turn could only issue audited statements once all expenditure had been verified and they could not do so as the Applicant had not submitted her vouchers. The position was so dire at the school that food could not be purchased for the children.
78. Under cross-examination Nkosi stated that she had taken early retirement and that she was unaware of the circumstances surrounding the Applicant leaving the school as she was not the school principal at the time. Nkosi could not comment on much of what was put to her as she was either on sick leave at the time or had left the school due to her having retired.
79. Nkosi had received R4 000 for her contribution to the winter school. She was at home on sick leave at the time of the payment. She did not sign a receipt and had expected to do so, on her return to school. It was accepted by the Applicant that Nkosi had asked where she would sign for the money.
80. The Applicant ought to have handed the various vouchers to the school governing body’s finance officer. It was put to her that the Applicant had in fact done so and that Nkosi had reprimanded her for having done so. This was denied. It was further put to her that the finance officer, Ntombela, would testify in support of this version.
81. With regards to the submission of vouchers for the Cape Town trip and the winter school, Nkosi had arranged for the school governing body to meet but as the Applicant had stated that she didn’t have the necessary vouchers the meeting did not proceed as the submission of vouchers had been the main purpose of the meeting.
82. Nkosi denied that the Applicant had attempted to hand to her a report on the winter school and vouchers. She further denied that she had then instructed the Applicant to take the vouchers to the finance officer. She did not know whether the Applicant had subsequently given vouchers to the finance officer but the finance officer had never reported to her that the Applicant had submitted the vouchers to her.
83. With regards to the funding for the winter school, it was put to Nkosi that the Applicant would dispute having been present at a meeting at which it was decided to issue a cheque for R200 000. She had only told Nkosi and not the school governing body of the need to pay creditors. Nkosi replied that the meeting had been called as a result of the Applicant’s initiative and that at the meeting she had emphasized the need to pay creditors. The amount of R200 000 was arrived at as a result of an estimation by the Applicant of the amount that would be needed to pay creditors. It was put to Nkosi that the Applicant disputes this version of hers.
84. Nkosi had been at the meeting of the school governing body when it decided to write the letter of complaint to the district office. It arrived at this decision as the Department was withholding funds as it had not received the school’s audited financial statements. Nkosi agreed that Twala had not informed the governing body that R143 000 had been paid to educators and that there were accordingly no vouchers for these payments. Nkosi agreed that the school was reimbursed the full costs of the winter school.
85. Nkosi stated that three educators had attended a course on sign language in July 2016. The Applicant agreed with this evidence but it was put to Nkosi that on her return from Cape Town, the Applicant had received another invitation to attend a workshop. This was unknown to Nkosi.
The Applicant’s case
87. On or about 26 June 2016 the school had been requested by the Department to host the winter school. A committee had been formed to make the necessary arrangements. Initially Nkosi had been the chairperson of this committee but after she had fallen ill the Applicant had been in charge.
88. One day whilst she was sitting in the principal’s office, in the absence of Nkosi who was ill, Twala had arrived at the office with R200 000, which she said was to pay the creditors of the winter school. The Applicant provided Twala with registers that she had kept of winter school activities and Twala drew up a schedule of amounts due to educators for having worked at the winter school. Twala then asked the Applicant for details of those creditors who needed to be paid urgently. The Applicant provided details to Twala including those of North City Wholesalers, Keeways, Telkom and an invoice for mattresses.
89. Educators came to the office and signed for their payments. The security guards also did the same. They signed the register that Twala had compiled. The payments for those educators who were not present were retained by the Applicant for safekeeping.
90. The Applicant recalled that Twala had given her money and instructed her to pay Yacoobs, Keeways and Telkom. It is possible that she paid additional creditors but the Applicant could no longer recall if she had. With regards to the payment of Telkom, this payment was in respect of the school account. The school had not paid its account with Telkom and hence the winter school’s money was used as the school did not have money to pay it.
91. The Applicant kept proof of payment when she paid creditors for submission to the finance officer after she would have shown them to the Nkosi at the handover meeting on Nkosi’s return from sick leave. When Nkosi returned from sick leave they had met and the Applicant had shown her the vouchers in respect of the winter school, the Cape Town trip and the trip to Angel Rose. As Nkosi had said that she does not need the vouchers, the Applicant had taken them to the finance officer. She had not given Nkosi a comprehensive report on the winter school as she could not get the winter school committee to meet.
92. Ndlovu, the former chairperson of the school governing body, who had accompanied the Applicant to Cape Town contacted her and asked to meet to discuss rumours that she had heard that the Applicant had failed to submit vouchers for the Cape Town trip, the winter school and the trip to Port Shepstone. At this stage the Applicant had already submitted all vouchers to the finance officer. Ndlovu had got into the Applicant’s vehicle and asked to go to a secluded spot to talk. She was particularly concerned about the invoice from Lagoon Beach Hotel (at page 13 of exhibit B) that was issued to Donald Motsepe and not the school or the Applicant. When questioned by me, the Applicant stated that the finance officer had not raised any concerns in respect of the vouchers submitted by her. She had, however, not told Ndlovu that there had been no queries with regards to the vouchers so she did not know what rumours Ndlovu had heard.
93. The Applicant had cashed one cheque for R20 000 before leaving for Cape Town. She had also taken cash that had been set aside to pay educators for their winter school services but which had not by then been collected. When she returned to Newcastle she had cashed the second cheque for R20 000 and used its proceeds to replenish the money set aside to pay the educators. Approximately R10 000 remained unspent. When she had returned from Cape Town she had seen an invitation to attend a workshop in Port Shepstone. She had called the chairperson of the school governing body to ask for permission to use the unspent money to pay for accommodation at Angel Rose. The relevant invoice for R7 650 is at page 14 of exhibit B. On being questioned by me she stated that the use of funds to attend the workshop had been approved at a meeting sometime after her return from Cape Town. When questioned further as to why it was then necessary to seek the approval of the chairperson, the Applicant conceded that she could not recall if a meeting had been held. She nevertheless maintained that a budget had been approved for the trip but that she did not know when. The chairperson of the governing body had not approved the rolling over of money from the Cape Town trip but she had nevertheless gone ahead and used the money to pay the Angel Rose invoice. She did not need the school governing body’s permission to attend.
94. The Applicant disputed the evidence of Mabaso, the chairperson of her disciplinary hearing, that she had not stated at the hearing that Nkosi had refused to accept the vouchers when submitted by her.
95. Under cross-examination the Applicant acknowledged that she had received the two letters from Vilakazi (at pages 63 and 64 of exhibit A) dated 10 October and 14 August 2017 respectively calling upon her to respond to the letter of complaint of the school governing body. She initially testified that she had replied to the letters but later stated that she could not remember whether she had done so. When the version that had been put on her behalf to Vilakazi; namely, that she had replied to his letters in the same letter that she had written to the district director (page 3b of exhibit B,) was put to her, the Applicant replied that she could not remember.
96. The Applicant denied having submitted the Freshfields Bakery statement (at page 43 of exhibit A) at her hearing as proof of a winter school expense. She also stated that only “some” of the vouchers at pages PC1-14 of exhibit B were in respect of winter school expenses. She stated that other vouchers not included in the bundles of documents had been submitted at the arbitration. She could not answer when this had occurred. Impuphilo Wholesalers’ invoice (at page PC5 of exhibit B) for R394.90 is dated 6 August 2016 long after the winter school had been held but the Applicant thought this was a winter school expense. She subsequently stated that it had been included in her bundle in error. She stated that she could not account for all the vouchers as they had been contained in a file given to her by Ngobese. She later testified that these vouchers from Ngobese were not paid from proceeds of the R200 000 cheque.
97. The Applicant did not have a voucher for her private accommodation on the Cape Town trip as she did not have sufficient time to get it. She also could not produce vouchers for the training material she had purchased as these had been purchased from private individuals who did not issue vouchers. The chairperson, Ndlovu, had been present when she had made the purchases and had agreed that she could do so. This version was, however, not put to Ndlovu. She was still looking for the voucher for the gala dinner held at the conclusion of the Cape Town trip.
98. Under re-examination the Applicant submitted that nobody had complained that they had not received any payment due to them.
99. I questioned by her on the following content of her letter dated 23 August 2017 (at page 62 of the Respondent’s bundle, exhibit A:)
“I hereby wish to acknowledge receipt of allegations letter dated 27-06-2017.
Response could be expected from me in due time regarding this matter.”
She agreed that it indicated that she had, as at 23 August 2017, not yet replied to the letter of District Director (at page 61 of exhibit A) calling upon her to respond to the allegations of the governing body. She further agreed that this letter contradicted the content of her letter dated 30 June 2017 (at page 3b of exhibit B,) which indicates that it had been received by the District Office on 30 June 2017 and in which she responds to the allegations of the governing body. Her explanation for this apparent contradiction was that the letter dated 23 August 2017 was drafted by her trade union and not her.
100. Siphiwe Jerome Ntombela (Ntombela) has been the chairperson, deputy chairperson and ordinary member of the school governing body. When the winter school was held, he was the deputy chairperson. As agreed, he had been paid for having assisted at the winter school. He had received the money from the Applicant and had signed the register presented to him by Twala as proof of receipt.
101. A committee had been formed to run the winter school. On conclusion of the winter school the Applicant had attempted to table a report at a meeting of the school governing body. It was, however, not accepted and it was resolved that the report would only be submitted to the principal once all outstanding invoices had been received.
102. When the Cape Town trip took place Ntombela was an ordinary member of the school governing body. He recalls that there was an issue about outstanding vouchers but submitted that this had not been discussed a formal meeting of the governing body.
103. It had occurred in the past that educators had returned from trips without all supporting vouchers and the governing body had still paid these alleged expenses.
104. Kate Aliena Ndaba (Ndaba) was the finance officer of the governing body. She was not part of the winter school committee but had knowledge of the Cape Town trip. At a meeting of the governing body the principal had requested that the Applicant submit vouchers from the trip. The Applicant had said that she was still sorting them out. She had then tried to submit vouchers at a subsequent meeting but the principal had insisted that she submit them together with a report on the trip. After the meeting the Applicant had asked her to check whether the vouchers were in order. She conceded that she could not clearly remember what vouchers had been present. She had made copies of the vouchers and placed them in her expenditure file. The originals had been returned to the Applicant. When she had submitted her monthly expenditure report, the governing body had said that the outstanding vouchers were to be submitted. She left the school in November 2017, by which date the Applicant had still not submitted the outstanding vouchers. She had not requested the Applicant to do so. She had no explanation for this failure.
105. On occasion others had also not submitted the required vouchers.
SUMMARY OF ARGUMENTS
106. With regards to the procedural fairness of the Applicant’s dismissal it was submitted that there had been no proper complaint prior to charges having been preferred against the Applicant. In support hereof reference was made to the evidence of Ntombela that he did not sign and was unaware of the complaint at page 34 of exhibit A, which is the letter of complaint of educators involved with the winter school. The dismissal was accordingly unfair.
107. Expenditure of the winter school funds had been done largely in the presence of Twala and she had submitted the relevant vouchers together with those for the Cape Town trip to the school governing body and the finance officer. The Applicant only failed to submit a single voucher, for accommodation, from the Cape Town trip and it would thus be unfair to find her guilty of misconduct. At worst, it is submitted, the Applicant should have been found guilty of having failed to submit this single voucher.
108. There was division in the governing body and this was the cause of the chairperson frustrating the Applicant’s efforts to submit the vouchers. When the chairperson had refused to accept the vouchers, the Applicant had given them to the finance officer.
109. With regards to sanction, if the Applicant were to be found guilty, it was submitted that the disciplinary code did not provide for a sanction of dismissal in these circumstances.
110. It was submitted on behalf of the Respondent that it was not in dispute that the Applicant had not submitted voucher for expenses such as accommodation (R4 950,) the Blue Lagoon accommodation (in respect of which she had submitted an invoice issued to Madikazela Mandela School,) shuttle travel costs and other expenses. It was submitted that the Applicant had deliberately attempted to mislead the school by submitting this invoice
111. The Applicant had made use funds approved for the Cape Town trip to pay for the unauthorized expense of accommodation at Angel Rose in Port Shepstone. No other vouchers from that trip had been submitted. The trip, in any event, was unauthorized.
112. With regards to the winter school it was submitted that the Applicant had attempted to justify her expenditure by submitting vouchers such as the Impuphu Wholesale invoice, which is dated long after the event. Such invoices cannot be valid.
113. With regards to the evidence of the Applicant, it was submitted that she gave contradictory versions. She was evasive and unreliable.
114. The overall conduct by the Applicant both at the time of the events and subsequently at the arbitration were such that she could not be trusted.
ANALYSIS OF EVIDENCE AND ARGUMENT
115. In terms of section 192 of the LRA the onus is on the Respondent to establish that the dismissal was procedurally and substantively fair.
116. With regards to the procedural fairness of the dismissal it is not in dispute that the Applicant was dismissed following a formal disciplinary hearing chaired by Mabaso at which evidence was led and she had an opportunity to testify. It is further not in dispute that she was allowed to appeal against the findings and sanction of the disciplinary hearing. No version was put to any of the Respondent’s witnesses indicating that the proceedings at the disciplinary hearing were unfair. No evidence in this regard was given by or on behalf of the Applicant. It was submitted in closing argument on her behalf that there had not been a formal complaint prior to her having been charged. In so doing reliance was placed on the evidence of Ntombela that he was unaware of the letter addressed by “concerned educators,” which is at page 34 of exhibit A. This submission, however, ignores the evidence of the Respondent’s witnesses that the governing body complained to the District Office by way of the letter at pages 59-60 of exhibit A. (The complaint at page 34 of exhibit A is a separate complaint by the educators.) As the custodian of the school funds there is surely nothing wrong in it complaining to the District Office about the alleged failure to account by the Applicant. I find that the dismissal of the Applicant was procedurally fair.
117. The gist of the alleged two counts of misconduct of the Applicant is that she did not vouch for the expenses allegedly incurred in respect of R40 000 (made up of two cheques of R20 000 each) issued to the Applicant for her and the chairperson of the governing body to attend a conference in Cape Town (count 1) and R100 000 (being a portion of the proceeds of a cheque cashed for R200 000) given to the Applicant to meet certain of the expenses of a winter school (count 2) and she did thereby contravene the provisions of section 18(1)(a) of the Employment of Educators Act 76 of 1998 by failing to comply with or contravene the said Act “or any other statute, regulation, or legal obligation relating to employment and the employment relationship.”
118. Section 16(2) of the South African Schools Act states that a “governing body stands in a position of trust towards the school” and section 37(1)of the said Act provides that “a public school must establish a school fund and administer it in accordance with directions issued by the Head of Department.” Nkosi, the former school principal, testified that the Applicant had attended a finance workshop put on by SANESE in her stead together with the school’s finance committee. The Applicant had also attended together with the finance committee a similar workshop put on by the Department. Vilakazi, the circuit manager, testified that once a cheque has been issued to meet expenses of the governing body, it is the responsibility of the person to whom the cheque is given to submit the relevant vouchers to the governing body or its finance committee. The Applicant did not dispute that as the recipient of school funds, she was required to account for their expenditure. In all instances the Applicant was acting in her capacity as deputy principal acting as the principal of the school in the place of indisposed principal. I am accordingly satisfied that the Applicant was under a legal obligation to account for the expenditure.
119. I shall deal firstly with the evidence submitted in respect of the second cheque of R20 000. It is common cause that this cheque was issued to the Applicant for her to use to meet expenses of the Cape Town trip. It is further common cause that the cheque was cashed in Newcastle by the Applicant after she and Ndlovu, who had accompanied her to Cape Town, had returned. It is the evidence of Vilakazi that if the cheque had not been used for the purpose for which it was issued, it ought to have been returned to the governing body to be cancelled. In such circumstances, were vouchers in respect of expenses incurred for other unrelated matters to have been submitted, they would have been disallowed by the governing body. It is the evidence of the Applicant that the proceeds of this cheque were used to pay expenses incurred both in respect of the Cape Town trip and a trip allegedly undertaken by her and certain educators who teach the deaf to attend a workshop in Port Shepstone. It is the evidence of the Respondent’s witnesses that they were unaware of such a workshop. (They were aware of a workshop held in July 2016 but the expenses of this workshop had been paid by other school funds.) The Applicant initially testified that the governing body had approved the use of the residual Cape Town trip funds to fund the Port Shepstone trip. On her return from Cape Town she had seen the invitation to attend the Port Shepstone workshop. She subsequently conceded that she could not remember if a meeting of the governing body had been held. She also could not remember what the agreed budget was for the trip and she conceded that the chairperson, Ndlovu, did not agree with her rolling over funds for the Cape Town trip to pay for accommodation in Port Shepstone. She had nevertheless gone ahead and paid for the accommodation using the Cape Town trip funds. She also did not name or call as witnesses any of the educators who allegedly accompanied her to Port Shepstone. In such circumstances, I find that the trip to Port Shepstone was unauthorized and any vouchers that may have been submitted in support of expenses so incurred would in any event be of no assistance to the Applicant.
120. In deciding this case it is important to keep in mind that the Applicant was not dismissed for having misappropriated school funds. She was dismissed for having failed to submit vouchers that would have enabled the governing body to reconcile its expenses. It is the evidence for the Respondent that despite numerous requests, the Applicant failed to submit the required vouchers. On the other hand, the Applicant maintains that she had handed over or attempted to hand over the vouchers.
121. Nxumalo, the treasurer testified that it was agreed that on the Applicant’s return from Cape Town she would submit the vouchers. The Applicant had not done so and, in particular, she had never said that she had given them to the school principal, Nkosi, or the chairperson of the governing body, Ndlovu. Twala, the governing body secretary, also testified that despite numerous requests the Applicant had failed to submit vouchers. In particular, she testified that at a meeting with educators who had participated in the winter school, the Applicant had agreed to reconcile the vouchers and provide them with an informal report. This had not happened. Ndlovu, the governing body chairperson, testified that she had questioned the Applicant about handing over the Cape Town trip vouchers. The response of the Applicant had been that she would do so in her own time. Vilakazi, the circuit manager, testified that at a meeting held with the Applicant and Nkosi, the Applicant had not stated that she had given the vouchers to Nkosi. She had, however, stated that the file in which they had been placed was missing. The response of the Applicant is to deny that such a meeting took place.
122. It is evident from the Applicant’s own evidence that she did not submit vouchers in respect of all the expenditure allegedly incurred by her. For instance, she testified that she did not have or submit vouchers in respect of her accommodation in Cape Town; teaching material she had purchased at the Cape Town conference; the attendance of the gala evening or for the accommodation of Ndlovu for which she submitted an invoice in the name of the Madikazela Mandela School to this arbitration. This evidence does not support the submission made on her behalf that the only invoice that she had not submitted was that relating to accommodation. She likewise conceded that certain copies of invoices submitted at this arbitration in justification of the winter school expenditure could not have related to the school as they are dated sometime after the event. The only invoice submitted by the Applicant in support of the Port Shepstone trip is the invoice from Angel Rose for accommodation in the amount of R7 650.
123. While the Applicant acknowledges that she did not submit vouchers in support of all expenditure incurred by her, she submits that the balance of the expenditure was properly vouched for. The version of the Applicant and her witnesses as to what she did with the vouchers has, however, not been consistent. Firstly, it was put to the Respondent’s witnesses that the Applicant had tried to hand the vouchers to the principal, Nkosi, and then to the chairperson of the governing body, Ndlovu, but they had refused to take them. It was further put that after the refusal by Nkosi to accept the vouchers, she had nevertheless left them in Nkosi’s office. On the other hand when the Applicant testified she stated that when she had attempted to hand over the vouchers to Nkosi she had indicated that she did not need them and she had then taken them to the finance officer, Ndaba. This version had not been put to any of the Respondent’s witnesses, including Nkosi. When Ndaba testified on behalf of the Applicant she stated that she had copied the vouchers provided to her by the Applicant and returned the originals to her. This version of Ndaba was not put to any of the Respondent’s witnesses. The Applicant herself has also never submitted that she was in possession of original vouchers.
124. Contrary to the evidence for and by the Applicant, the evidence on behalf of the Respondent was consistent in all material respects. Funds were made available to the Applicant to meet expenses incurred on the trip to Cape Town (R40 000) and for the winter school (R200 000) and despite repeated requests the Applicant refused or at least failed to account for the expenditure. It was only when advised by the auditors that this failure would cause the Department not to release further funds to the school, did they raise the complaint with the District Office. In the face of this consistency, it was put to the Respondent’s witnesses that they were conspiring against the Applicant as the governing body was made up of two opposing. This was denied by the witnesses and is contracted by the unchallenged evidence of Nkosi, the principal, that while ill at home the Applicant would bring food for her to her home. This conduct is not indicative of two opposing camps at war with one another. Further, the evidence of the Respondent’s witnesses is corroborated to a certain extent by the evidence of Ndaba who testified that when she had submitted her monthly expenditure report, the governing body had stated that the Applicant was required to submit the outstanding vouchers. She stated that the Applicant had not done so by the time of her (Ndaba’s) resignation in November 2017.
125. Turning to the probabilities of the competing versions of the Applicant and Respondent, I find that the version of the Respondent to be more probable than those of the Applicant for the following reasons. Firstly it is unlikely that the Respondent’s witnesses would associate themselves with a complaint that the Applicant had not submitted vouchers well knowing that she had given them to the finance officer, Ndaba, who had included them in her monthly expenditure report as alleged by the Applicant. Secondly, there is no rational explanation as to why the governing body would at the same time insist both that the Applicant submit the vouchers and at the same time refuse to accept them when she attempted to. Thirdly, if the vouchers had been submitted why would the Applicant have found it necessary to meet with Ndlovu, the governing body chairperson, at an open piece of land to show her a bank bag allegedly containing vouchers. Fourthly, the Applicant stated that she could not submit vouchers for the learning material purchased at Cape Town conference as it had been purchased from individuals who did not issue vouchers. In this regard, it is hard to accept that vendors attending a conference for educators would not be in a position to issue invoices and receipts. (In any event on the Applicant’s version the material should not have been purchased if she was unable to submit proper vouchers.)
126. As already stated I not required to determine whether the Applicant misappropriated funds but simply to determine whether she properly vouched for funds made available to her. For the reasons detailed above, I find that the Respondent has established that she did not do so.
127. With regards to the sanction of dismissal it was submitted on her behalf that she had not previously been found guilty of misconduct and that with the present counts, she was guilty of mismanagement of funds and not dishonesty. While it is correct that the Applicant was not charged with dishonesty I am satisfied that the evidence establishes that she acted with reckless disregard for her responsibilities towards funds of the school entrusted to her. For instance, she rolled over funds authorized for use on the Cape Town to fund a trip to Port Shepstone. She did so despite, on her own version, the chairperson of the governing body having told her that she was not to do so.
128. The Applicant has shown no remorse for her actions and instead has submitted differing versions at the arbitration. It is also evident that in preparation for the arbitration the Applicant went about collecting vouchers in an attempt to support the expenditure. In this regard for example she conceded in her evidence that the Impuphilo Wholesalers’ invoice (at page PC5 of exhibit B) for R394.90 and dated 6 August 2016, long after the winter school had been held, had been included in her bundle as a winter school expense by mistake. This is not the conduct of someone who has gained an insight into the wrongfulness of her conduct.
129. Another factor to be taken into account when considering the appropriate sanction is the effect the Applicant’s conduct had on the learners of the school. It was the unchallenged evidence of the Respondent’s witnesses that the failure of the Applicant to submit the required vouchers had prevented the school’s auditors from issuing audited financial statements. The Department in turn would only release funds to the school on receipt of the audited financial statements. The conduct of the Applicant accordingly had very serious implications for the interests of the learners.
130. In Light of the factors mentioned above, I am satisfied that the sanction of dismissal is fair.
131. The application is dismissed.
Arbitrator 17 May 2021