Case Number: ELRC 630-20/21 GP
Commissioner: M.A. HAWYES
Date of Award: 8TH June 2021
In the ARBITRATION between
SAOU obo Malcolm Glynn Williams
Gauteng Department of Education
Union/Applicant’s representative: Adv. L. Isparta ( instructed by Erasmus Inc. Attorneys) and MR. P. Delport (SAOU)
Telephone: 082 552 6859 / 063014 3004
Respondent’s representative: Ms. K.P. Tshiovhe
Telephone: 083 348 3160
DETAILS OF HEARING AND REPRESENTATION
1. The case was scheduled for arbitration and ran on the 24, 25, 26 May 2021 at the ELRC Head Office situated at 261 West Avenue, Centurion.
2. Ms. Louise Isparta, an advocate from the Circle Chambers, Brooklyn, instructed by Erasmus Inc Attorneys, who in turn was instructed by the South African Onderwys Unie (SAOU), represented the Applicant.
3. Ms. K.P Tshiovhe, a labour relations official, represented the Respondent.
4. After conclusion of the arbitration the parties requested the opportunity to submit written closing arguments by the 2 June 2021. Closing arguments were timeously received by both parties and my award now follows
ISSUE IN DISPUTE
5. Whether the dismissal of the Applicant on two counts of alleged misconduct was substantively and procedurally fair or not.
BACKGROUND TO THE ISSUE IN DISPUTE
6. The Respondent employed the Applicant as Headmaster (Principal) at the Parktown Boys High School in Johannesburg at the time of his dismissal.
7. At the time of his dismissal the Applicant earned R47599-00 (gross) per month.
8. The events leading up to tragic death of a new grade 8 learner, Enoch Mpianzi, who was one of a large group of learners who attended a school orientation excursion to Nyati Bush and River Break in Brits, have been fairly extensively reported in the South African main stream media and attracted a huge public interest.
9. In the aftermath of the tragedy, the Respondent commissioned a report from Harris Nupen and Molebatsi (HNM Attorneys) to investigate the circumstances surrounding the death of Enoch Mpianzi. Flowing from the report the Applicant was subsequently charged for three counts of misconduct but at the ensuing disciplinary enquiry was only found guilty of two and not guilty of one. I wish to state unequivocally that the charge for which the Applicant was found not guilty sought to link the Applicant’s acts or omissions to the death of Enoch Mpianzi.
10. It is trite that arbitration is a new hearing (a hearing de novo) and permits the parties to tender evidence afresh on all charges that were raised at the disciplinary enquiry. It is not merely a review of the evidence considered by the employer when it decided to dismiss the Applicant. At the commencement of the arbitration I specifically enquired from Ms. Tshiovhe whether she wished to pursue the charge for which the Applicant was found not guilty at the disciplinary enquiry afresh. Her answer was that she did not wish to do so.
11. This award therefore proceeds from the premise that the Applicant’s actions (commission or omission) played no part in the cause of the death of Enoch Mpianzi.
12. The allegations for which the Applicant was found guilty and which form the subject matter of the award are now detailed below.
13. Allegation 1 reads as follows:
“It is alleged that on or around the 15 January 2020, you unjustifiably prejudiced the administration, discipline or efficiency of the Department of Education in that you undertook or caused the school to undertake a school excursion to Nyati Bush and River Break in Brits, for Grade 8 orientation camp without prior approval.
In view of the above you are charged in terms of section 18 (1)(f) of the Employment of Educators Act 76 of 1998,as amended.”
Allegation 2 reads as follows:
“It is alleged that on or around the 15 January 2020, you unjustifiably prejudiced the administration, discipline or efficiency of the Department of Education in that you failed to ensure that a correct roll call for all the learners who went to Nyati Bush and River Break in Brits, for the Grade 8 orientation camp, was maintained.
In view of the above you are charged in terms of section 18 (1)(f) of the Employment of Educators Act 76 of 1998,as amended.”
All further references to the Employment of Educators Act will be abbreviated to the EEA. (My emphasis).
14. The Applicant alleges that his dismissal on these two charges is substantively unfair.
15. The Applicant appealed the fairness of his dismissal to the Member of the Executive Council (MEC) which appeal was dismissed. The Applicant argued that his dismissal was also procedurally unfair in that the MEC, following the announcement of the death of Enoch, was intimately involved in the ensuing events and inter alia made media statements that compromised his ability to consider an appeal impartially.
16. Four bundles of documents were used at the arbitration namely Applicant’s bundle, marked “A”, Respondent’s bundle, marked “B”, the Respondent’s Personnel Administrative Measures (PAM), marked “C” and the Regulations pertaining to Domestic and International Tours for Learners at Public Schools as published in the Government Gazette, notice 1189 of 2012 dated the 11 May 2012, marked “D”. The Regulations are published and sanctioned as part of the provisions of the Gauteng Schools Education Act, no 6 of 1995.
SURVEY OF THE RESPONDENT’S EVIDENCE AND ARGUMENT
17. The Respondent lead the evidence of two witnesses namely Ms Mira Briel, an attorney employed by HNM Attorneys and who was involved in the investigation and drafting of the report commissioned by the Respondent and Ms. Shirley Molobi, the District Director: Johannesburg East District Office.
18. Briel testified that the investigation found that the school did not get the requisite approval from the GDE before embarking on the excursion and that the trip should not have taken place without approval.
19. She testified further that the Applicant had co-signed the request for permission to undertake the excursion (See Bundle B pg 137-144) and was negligent for not ensuring that proper authorization was granted before the school went on the trip.
20. With reference to Bundle “D” Briel testified that it was mandatory for the school to get permission from the Respondent before proceeding with the trip.
21. In this case the school and the Applicant made no attempts to follow up on the progress of the application.
22. Molobi testified, inter alia, that on the 16th January 2020, she received a call from a colleague informing her that there was an incident at Nyati Bush and River Break where a Grade 8 learner was missing. She testified further that she discovered that the trip was not authorized as the school did not get approval from the GDE. She also testified that the school had submitted the required application but the application did not reach her office as it was found in the office drawer of an intern who had apparently received the document. The implication was that the intern, who was on a temporary assignment from another government department, had omitted to forward the document to Molobi’s office for further process.
23. Molobi testified further that two immediate managers in the relevant department were later disciplined for their part in the intern’s omission and were given the sanction of three months suspension.
24. Molobi emphasized that she was surprised that the Applicant did not communicate with her in relation to the approval of the application as he had in the past always communicated with her if there were challenges at the school.
25. In respect of Allegation 2 Ms Briel testified that the roll call list that was used by the Applicant on the 15 January 2020 was not the correct roll call list as it reflected the names of all Grade 8 learners who enrolled at the school for Grade 8 for 2020. It did not reflect the names of the learners who were only going to the camp. The subsequent roll call that was initiated by the Applicant at the camp utilized this list and it included the names of a number of boys who had elected not to enroll at the school. Thus the list used for the camp roll call was inaccurate.
26. It is common cause that the list used for the morning roll call was left on the bus and returned to Johannesburg.
27. The Respondent appeared to argue that the Applicant should have shown greater initiative in ensuring that he was taking roll call at Nyati with a correct list.
28. On the question of procedural fairness The Respondent argued that all appeals emanating from disciplinary matters at the provincial level are handled by the MEC. The Minister is responsible for disciplinary matter at a national level and it was argued that it would be unreasonable to expect the Minister to deal with disciplinary matters at the provincial level. It was argued further that the fact that the MEC was involved in the case was neither here nor there, the case was in the media and there is little doubt that the Minister would also have known about the event.
29. The Respondent submitted that the employment relationship had irretrievably broken down and that dismissal was the appropriate sanction.
SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENT
30. The Applicant commenced his testimony by giving the hearing a detailed breakdown of his extensive experience in both the public and private sector as an educator and Principal.
31. In relation to Allegation 1 the Applicant testified that i.t.o clause 9 (1) of the Regulations cited in Bundle “D” the governing body of a public school must appoint an educator at the school as tour manager to take overall responsibility for any tour by learners of the school….”
32. It is common cause that one Mr Meintjies, the Head of grade 8 was appointed as the tour manager for the excursion to Nyati. It is also common cause that Meintjies had 7-8 years’ experience as an educator, had attended 6 or 7 grade 8 camps as support staff and was the camp leader at the 2019 grade 8 camp. The Applicant was satisfied that Meintjies had sufficient experience to deal with the 2020 grade 8 camp. The Applicant testified that he had no reason to doubt Meintjies abilities.
33. The Applicant testified that the excursion for the grade 8s’ was normally organized at another facility which was unable to host the excursion on the dates required by Parktown Boys High in 2020 and an alternative venue had to be sourced at short notice. On the 28 October 2019, a meeting was convened in the Applicant’s office with Mr Anton Knoetze, the manager from Nyati accompanied by Mr Willem Swart (Deputy Principal for Student Affairs) and Meintjies. The purpose of the meeting was to establish and confirm that all of the school’s requirements could be met by Nyati and to receive the anticipated programme for the said excursion. Knoetze had given firm assurances that that the requirements of the school could be met, including general safety measures.
34. The Applicant testified that on the 12th November 2019, Meintjies applied to the Respondent for permission to hold the camp at Nyati. The application was hand delivered to the District Office on the 19 November 2019. The Applicant agreed that he signed the application together with the chairperson of the School Governing Body. Shortly thereafter the school closed for the December/January school holidays and he went away with his family to the Maldives. Due to logistical issues with chartered flights he only returned to South Africa late on the 13th January 2020. Schools re-opened for educators on the 14th January 2020 and for learners on the 15th January 2020. In a whats app message dated the 14th January 2020 the Applicant enquired whether everything was in order and Meintjies had assured him that there were no problems. It is common cause that the Applicant did not specifically ask Meintjies whether permission had been granted by the Respondent. The Applicant urged Meintjies to advise him if any curved balls should arise and Meintjies assured him that he would do so.
35. A curved ball related to halaal meals did arise and was dealt with. The Applicant testified that he undertook to take the halaal meals with him when he came through to Nyati on the 15 January 2020.
36. On the 15th January 2020, a list of grade 8 boys attending the camp by the school and a roll call was held prior to the boys’ departure in the buses. Meintjies took the said roll call list with him in the bus. The buses departed for Nyati at approximately 9h30 and Meintjies later advised the Applicant that the buses had arrived at 14h00 due to stop-go construction on the road. The Applicant testified that he arrived at Nyati at approximately 15h05 and his role at the camp was simply to be the presence of the Headmaster, to welcome the boys to Parktown Boys High and get to know them.
37. In respect of Allegation 2 the Applicant testified that at approximately 16h20 he walked down the river crossing the fields where the water activity was taking place. After having observed the situation he was not satisfied with the safety arrangements and decided to stop the activity. Despite the fact that the boys were due to go on a hike and sleep out, as the next scheduled activity, the Applicant insisted that a roll call be held. The Applicant was further advised that the roll call list taken of grade 8 learners attending the camp by an educator Mr Reddy in the morning was not available. It later came to light at approximately 16h00 that Meintjies had left the list in the bus and it had returned to Johannesburg. The bus company was not prepared to bring the list back to Nyati.
38. It is common cause that Meintjies sourced an alternative list from the school which list contained the names of children who had decided not to enroll at Parktown Boys High. Coincidently the names of the grade learners who were marked absent on the second list appeared to tally with the list of learners who were absent on the Nyati control list. Enoch Mpianzi, along with six other learners, was identified as one of the absent learners at the camp on the afternoon of the 15 January 2020.
39. The Applicant testified further that he did not take the roll call because it was his responsibility or duty. He was requested by one of the Nyati staff officials to take the roll call because her voice was not loud enough and she struggled with the pronunciation of some of the surnames.
40. It was argued that the Applicant did all he could under the circumstances. The fact that he utilized a list that was not 100% accurate does not amount to misconduct or a neglect of his responsibilities.
41. On alleged procedural unfairness the Applicant asserted that the hearing of his appeal after the findings of guilt on both allegations at the disciplinary enquiry by the MEC, was procedurally unfair and it is common cause that the MEC was requested to recuse himself from the proceedings, which request was refused.
42. The Applicant testified that that in various ways the MEC was involved, directly after the fact, in respect of the tragic happenings at Nyati, in that by way of example he visited the scene before and after the body was found; in fact he had been present when the body was taken out of the river and family members of Enoch Mpianzi were insistent upon seeing the body.
43. It was submitted further that the MEC, together with the Applicant, were there to experience and share in the raw pain of the family members, attempted to console and give assistance. Even further to this the MEC visited the family after the fact and made various statements about the matter before the disciplinary hearing had even been heard.
44. It was submitted that taking the aforementioned into consideration there was no manner in which the MEC could have heard the appeal in an objective manner and come to an objective decision thereof.
45. It was suggested by the employer representative that there was no alternative to the MEC chairing the appeal. The Applicant disagreed and referred the arbitration to Schedule 2 of the EEA (section 9 (3)) under the heading “Appeals” which made provision for the Minister to chair appeals in appropriate circumstances.
46. In conclusion the Applicant prayed for a finding that his dismissal was substantively and procedurally unfair and asked for the relief of retrospective reinstatement alternatively 12 months compensation.
ANALYSIS OF EVIDENCE AND ARGUMENT
47. The onus rests squarely on the shoulders of the Respondent to prove all elements of the two allegations on a balance of probabilities.(See section 192 (2) of the Labour Relations Act, no 66 of 1995 (as amended) (LRA)).
48. Section 18 (1) (f) of the EEA requires specific evidence that the Applicant’s acts or omissions unjustifiably prejudiced the administration, discipline and efficiency of the Respondent.
49. The Respondent submitted that the Applicant was guilty of the allegations leveled against him on the basis that, as Principal, he had overall responsibility as the final accounting officer of the school. This statement must be considered in the general context of the facts and other laws that deal with delegation as it pertains to school tours.
50. It is common cause that the Respondent never applied its mind to the schools application for permission to go on the excursion and the blame for that must be laid squarely at their door. The Respondent had tasked an intern from a completely different government department with the responsibility of receiving the application and directing it to the office of the District Director. Even an inexperienced intern could reasonably be expected to have made basic enquiries about where the application should go. It is probable that he/she did not act in a reasonable manner by placing the Parktown Boys High excursion application in a desk drawer. It could likewise reasonably have been expected of managers to have taken extra care in dealing with an inexperienced intern to ensure that she had dealt with all responsibilities assigned to her. I find that the managers were correctly disciplined for their negligence and given a sanction short of dismissal.
51. The District Director (Molobi), on the application of a consistent standard, should be regarded as having overall responsibility for important matters arising within her office. The Respondent obviously permitted the District Director to raise the defence that she had delegated the responsibility of managing the administration of tour applications to officials within her department and thus she could not be held directly accountable. For that reason she was probably not disciplined.
52. Unfortunately the Applicant was held to a different standard. Despite co-signing the application with the chairperson of the governing body the Applicant was legally permitted to appoint a tour manager in terms of Regulation 9 (1) of the Regulations dealing with Domestic and International Tours for Learners at Public Schools, 2012. The Regulations specifically give the tour manager “overall responsibility” for any tour by learners of the school. This makes sense since the Principal of any school is a busy person and cannot be expected to be hands on in all aspects of running a school. Delegation is necessary and authorized in the instance of school tours and thus Meintjies was appointed to take overall responsibility for the tour which included the submission and management of the permissions to go on the tour itself. Overall responsibility means just that and the Applicant could have occupied himself with other responsibilities and left the organization of the entire tour in Meintjies hands and not have been in breach of Regulation 9 (1).
53. The Applicant as a responsible Principal enquired from the Meintjies whether there were any curved balls (possible challenges) prior to departure and was assured that there were none. It is common cause that plans to go on the tour were at an advanced stage and all arrangements and undertakings including payment of monies had probably been made.
54. The Applicant gave unchallenged testimony that the Department had a history of only approving applications for tours after the tours had occurred. Molobi hinted at this when she testified that she had to create new systems when she took over as District Director. Clearly Meintjies knew that no permission had been granted and all indications from the unchallenged evidence are that he is a responsible, experienced educator who knew what was required of him in taking overall responsibility for the tour. Why did he not inform the Applicant of the fact that no information had been furnished regarding the approval. I find that it is probable that both Meintjies and the Applicant accepted that the approval would be granted ex post facto and thus it was probably internally understood between them but not verbalized that the tour would continue with all arrangements already made and finalized.
55. It was also reasonable to accept that had there been any objections to the tour application that they would have been raised with the school some time beforehand and it could be reasonably be concluded that the Respondent would not have refused the application at the last moment without good reason and certainly none appeared apparent. The Respondent created the reasonable impression that it had fallen back to old habits to only approve tour applications after they had already taken place.
56. I find it highly improbable that disciplinary action would have been commenced against the Applicant had it not been for the tragic death of Enoch at Nyati. Clearly the Respondent needed to be seen as doing something and pressure was on them to hold someone accountable. The obvious person was the Principal of the school. The Respondent should not be permitted to hold the Applicant accountable for the death of Enoch Mpianzi through unrelated back door methods which paint him as an irresponsible Principal whilst deflecting attention away from their serious omissions.
57. I agree with the submissions of the Applicant’s counsel that the HNM Report is not a reliable document when it comes to assessing the alleged misconduct of the Applicant due to the fact that Briel was not privy to the actual happenings to which the allegations leveled against the Applicant relates rendering her testimony largely of a hearsay nature. I find that the findings in the report were based on incomplete facts and without a proper appreciation of the legislative framework within which the matter falls.
58. The fact of the matter is that the decision to proceed with the grade 8 excursion (having met all legal obligations) was part of the normal functioning of the school and did not unjustifiably prejudice the discipline, efficiency and administration of the Respondent. Were it possible I would consider holding the Respondent liable on the basis of vicarious liability for its omissions pertaining to discipline, efficiency and administration related to the tour approval.
59. The Respondent has not proven all the elements of Allegation 1 against the Applicant on a balance of probabilities.
60. In respect of the factors contained in Allegation 2 it must be considered that that the Applicant was not involved or could not reasonably have been expected to have been involved in the early morning school roll call prior to the learners proceeding to Nyati. He had not seen the list and was at no time at the camp in possession of the list. Meintjies was at all times in possession of the correct list and he was the one responsible for leaving it on the bus when the learners arrived at Nyati. The Applicant was, in any event, not responsible for taking or maintaining a roll call at Nyati but he made a judgment call and took control of a situation, in the absence of Meintjies who was organizing the learners for the sleep-out in the veld, which he found to be unacceptable. The gist of Allegation 2 in my view seeks to punish the Applicant for being responsible and taking initiative. The Applicant could not have done more in the circumstances and I agree with the Applicant’s counsel that he went above and beyond of what was required of him.
61. As with Allegation 1 the Respondent has failed to prove on a balance of probabilities that the Applicant unjustifiably prejudiced the efficiency, administration and discipline of the Respondent by his actions.
62. Finally, I deal with the evidence pertaining to alleged procedural unfairness of the Applicant’s dismissal.
63. I find it surprising that the MEC did not of his own volition recuse himself. It is clear that the MEC was immersed in the case by his involvement with the family and utterances in the press and should rightfully have removed himself from any decision making responsibilities related to the Applicant’s appeal.
64. Section 9 of Schedule 2 of the EEA clearly cites the Minister of Education as an alternative person who can hear appeals. Yes, the MEC may have been assigned to hear provincial appeals and the Minister national appeals but I find that the legislation clearly contemplated a situation such as the one before me, where the MEC would be compromised in performing his appeal decision making powers impartially and the Minster could be requested to perform that function on an ad hoc basis in the interests of justice. I have no evidence before me that the Minister was similarly compromised in dealing with the Applicant’s appeal.
65. I agree with the Applicant’s counsel that taking into account how emotionally charged any situation is when the death of a child is involved, coupled with his political responsibilities to Enoch Mpianzi’s family the MEC’S hearing of the Applicant’s appeal was certainly procedurally unfair.
66. The Respondent led no meaningful evidence that the trust relationship had irretrievably broken down. I find quite the contrary. Even in this unfortunate situation I find that the Applicant used his exceptional leadership and management skills to heal and unite the Parktown Boys High community. The Respondent is sorely in need of gifted and responsible educators such as the Applicant in these difficult and challenging time and I trust that the Respondent will look past pride and prejudice and work towards re-integrating the Applicant back into the public education space.
67. The Respondent is ordered to reinstate the Applicant on the same terms and condition of employment which governed the employment relationship prior to the dismissal dated the 8th December 2020.
68. The said reinstatement is to operate retrospectively with effect from the 8th December 2020.
69. As a result of the retrospective effect of the reinstatement, the Respondent is ordered to pay remuneration due to the Applicant in the amount of R285 594-00 (six months’ salary) (less allowable statutory deductions) by no later than the 30th July 2021.
63. The Applicant must report for duty on the 1st July 2021 at the usual time at Park Town Boys High School.
64. No order as to costs is made.