ELRC257-20/21
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Award Date:
05 July 2021
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Case Number: ELRC257-20/21
Commissioner: PAUL PHUNDU
Date of Award: 05 JULY 2021
In the ARBITRATION between
OBEDIA MPHORENG BUYS
(Union/Applicant)
And
DEPARTMENT OF EDUCATION-GAUTENG
(Respondent)
Union/Applicant’s representative: Adv Job Molapo
Union/Applicant’s address:
PO BOX 2121
Hammanskraal
Pretoria 0400
Telephone: 082 692 9029
Telefax:
E-mail: ombuys@gmail.com
Respondent’s representative: Ms Minah Ralioma
Respondent’s address: Gauteng Department of Education
Johannesburg
2000
Telephone: 011 631 2172
Telefax:
E-mail: Patrick.Selowa@gauteng.gov.za
DETAILS OF HEARING AND REPRESENTATION
[1] This is the award in the arbitration between, Ms Obedia Mphoreng Buys (hereinafter referred to as the Applicant) and Department of Education-Gauteng, (hereinafter referred to as the Respondent). The matter was set down for arbitration virtually on 27 January, 15 April and 11 June 2021.
[2] At the date of dismissal, the Applicant was earning a basic monthly salary of R35 122.75 as a Deputy Principal under the auspices of the Gauteng Department of Education. The Applicant was dismissed after an appeal on 28 August 2020.
[3] The applicant was present at the arbitration hearing and was represented by, Adv Job Mzondi Molapo, Instructed by S.Nkosi Attorneys. The respondent was represented by, Ms Minah Ralioma, its Employee Relations Official.
[4] The arbitration hearing was held under the auspices of the Council in terms of section 191(5) (a) of the Labour Relations Act 66 of 1995, as amended (the Act). The award is issued in terms of section 138 (7) of the Act.
[5] Bundle of documents marked annexure “A” and “B” were admitted into evidence and the content was not disputed.
[6] The proceedings were digitally recorded. I have also kept handwritten notes.
[7] Both parties submitted written closing arguments and these submissions were also considered.
ISSUE TO BE DECIDED
[8] I have to determine whether or not the dismissal of the applicant was substantively fair.
[9] I also have to determine the appropriate relief if I find that the applicant’s dismissal was substantively unfair. The relief sought by the applicant is reinstatement.
BACKGROUND TO THE ISSUE
[10] The applicant was in the employ of the Department of Education-Gauteng as a Deputy Principal since 1 November 2018 until her dismissal on 26 August 2020.
[11] The applicant appeared before the internal disciplinary hearing where she was charged with the following misconduct:
“Charge: “It is alleged that on 24 July 2018, when you applied for the position of Deputy Principal at
Lehwelereng Secondary School, you provided false information that indicated that you
have the following experience,
a. Post level 2 post held from August 2013 for a period of five years; and
b. Post level 2 held from August 2013 to April 2016, i.e., for a period of 3 years and 6 months.
[12] On 28 August 2020, the applicant was found guilty and subsequently dismissed.
[13] She referred an alleged unfair dismissal dispute to the Council for conciliation and arbitration. Conciliation failed and the certificate of non-resolution of the dispute was issued. The matter proceeded to arbitration. In terms of relief, the applicant prayed for reinstatement.
[14] The applicant challenged only the substantive fairness of her dismissal.
SURVEY OF EVIDENCE AND ARGUMENT
The respondent’s case
The respondent had three witnesses who testified in support of its case as follows:
[15] Ms Rejoice Manamela testified under oath that she is employed by the respondent as an Assistant Director-Human Resources Management. Amongst her duties, is selection and recruitment. She said the applicant applied for a Deputy Principal position. The applicant was shortlisted and interviewed for the position of Deputy Principal at Lehwereleng Secondary School. The applicant was subsequently appointed into the position of Deputy Principal at Lehwereleng Secondary School in November 2018. From September 2013, the applicant was appointed as a Head of Department at Swartklip Secondary School in Mpumalanga. On 1 May 2016 she was transferred from Swartklip Secondary School to Lehwereleng Secondary School. At the time of the transfer she occupied the same position of a Head of Department, which was a managerial position. It was not true that Swartklip Secondary School offered subjects in Grade 10 to Grade 12 in 2013. It was also not true that the applicant had five years’ managerial experience.
[16] The applicant submitted false and incorrect information when she submitted form GDR2 wherein she indicated that she had three years and eight months’ experience as a Head of Department (‘HOD’) at Swartklip Secondary School. The applicant had two years and eight months’ experience as an HOD at Swartklip Secondary School. The applicant was aware when she applied for the position of Deputy Principal that submission of false information could lead to disqualification and she could be charged with misconduct for misrepresentation. She said the respondent acted fairly by dismissing the applicant.
[17] Under cross-examination the respondent’s witness confirmed that on 11 September 2018, an audi letter was sent to the applicant by the District Director, Ms Shelly Molobi, wherein the applicant was asked to clarify the exact number of years she had as a Head of Department in Mpumalanga. The applicant confirmed in writing to the District Director that she had two years and eight months’ experience as a Head of Department in Mpumalanga. The respondent’s witness further confirmed that the applicant joined Mahwelereng Secondary School as a Head of Department in May 2016. The applicant confirmed applying for the position of Deputy Principal on 24 July 2018. During this time, she was still a Head of Department and there was no break in service. The witness testified that it was not her duty to count the applicant’s number of years as a manager. The witness further confirmed that she was not sure whether the number of years as a manager as indicated in the form by the applicant was a human error or not. The applicant was advised to withdraw her application and she refused to do so. In conclusion the witness agreed that the applicant was an HOD since August 2013 up until 1 November 2018.
[18] Ms Elizabeth Nakampi testified under oath that she is employed by the respondent as a Principal at Lehwelereng Secondary School. One of her responsibilities, amongst others, was to oversee school activities and manage staff. The applicant applied for the position of a Deputy Principal. As a Principal, she was appointed as the chairperson of the interview panel. All potential candidates used GDE 2R forms to apply for the position. This form consisted of Personal Information, Previous Employment and Experience. The criteria used in shortlisting was qualifications, number of years in teaching and managerial experience.
[19] The school was established in 2012 and it did not offer Grade 10 to 12. The highest grade was Grade 8. The applicant joined Swartklip Secondary School in August 2013.The applicant submitted incorrect and misleading information by stating that she taught Grade 10 and Grade 12 Mathematics and Physical Sciences. While at Swartklip Secondary School, the applicant had two years and eight months’ managerial experience. The applicant joined Lehwelereng Secondary School on 1 May 2016. At the time of her application for Deputy Principal position, the applicant had two years and two months’ managerial experience since she joined Lehwelereng Secondary School. It was untrue that the applicant had five years’ managerial experience. Any incorrect information may lead to misconduct. The applicant was discharged for committing misconduct and her dismissal was fair. The applicant indicated in her application form that she had eight years and eight months’ managerial experience and this was incorrect and misleading.
[20] Under cross-examination, the respondent’s witness confirmed that the applicant was appointed as a Deputy Principal at Lehwelereng Secondary School on 1 November 2018. The respondent’s witness, Ms Elizabeth Nakampi conceded that the applicant had five years’ managerial experience. The respondent witness confirmed that she had a good relationship with the applicant. While at Swartklip Secondary School the applicant wrote that she had three years eight months’ managerial experience and this was incorrect. Ms Elizabeth Nakampi further stated that she did not say the applicant had an intention to mislead. She further stated that the applicant did not disadvantage anyone. She concluded by stating that the panel did not interrogate the information provided by the candidates.
[21] Mr Peter Thage testified under oath that he is a School Governing Body member at Lehwelereng Secondary School. GDE 2R form was used to shortlist potential candidates. As Governing Body Members they are were all trained to use the forms. However, they do not interrogate the information provided. They normally check qualifications and experience.
[22] Under cross examination, Mr Peter Thage recommended candidate “B” and not the applicant. The applicant was one of the recommended candidates. The applicant was number one on the list of recommended candidates.
Summary of the Applicant’s Evidence and Arguments
The applicant had two witnesses who testified in support of his case as follows:
[23] Ms Shirley Molobi testified under oath that she was employed by the Respondent as a District Director. She said schools were allowed to run with the recruitment process, recommendation was submitted to her office after all quality assurance processes have been concluded. She would then implement the recommendation if she was satisfied. She was told that SADTU Themba Branch lodged a grievance regarding misrepresentation and experience of the applicant. She then took it upon herself to initiate a preliminary investigation. On the 11 September 2019, she issued an audi letter to the applicant and the applicant responded through her union.
[24] She decided to appoint the applicant as a Deputy Principal and later dealt with consequence management. She confirmed that the applicant had met all the requirements of the position. She had the necessary leadership skills, managerial experience and teaching experience. After the appointment, she did not detect any misrepresentation on the part of the applicant. The applicant was appointed after compliance procedures have been followed. However, she had doubts about the information provided by the applicant.
[25] No cross examination.
[26] Ms Obedin Buys testified under oath that she was employed by the Respondent as a Head of Department and she applied for Deputy Principal Position in August 2018 at Lehwelereng Secondary School. At the time of her application she was an Acting Deputy Principal. She was never trained to fill in the GDR 2 Form. This form was used to apply for any vacant position within the Department of Education. She received an audi letter from Labour Relations asking her to respond as to why she should not be charged for misconduct relating to allegation of misrepresentation. She responded to the request around September 2018. The respondent decided to appoint her into the position of Deputy Principal on 1 November 2018. According to her, this meant that the respondent was satisfied with the information she provided.
[27] She was appointed as a Head of Department at Swartklip High School in August 2013. She later applied for horizontal transfer from Swartklip High School to Lehwelereng Secondary School and resumed her duties at this school on 1 May 2016. By the time she was appointed as a Deputy Principal on 1 November 2018 she had more than five years’ managerial experience. The applicant stated that she had no intention to mislead the respondent. She has eighteen years’ teaching experience, adequate leadership skills and five years’ managerial experience. The respondent did not provide any names of the candidates who were disadvantaged by her appointment. The applicant disagreed with the allegation that she did not have five years’ managerial experience. The applicant conceded that she made a mistake by writing that she had three years and eighteen months’ managerial experience whilst at Lehwelereng Secondary School. She meant to write two years and eight months. She said this was an incorrect calculation and a human error and she had no intention to mislead or misrepresent her credentials. She later conceded that she indicated in the forms that she had eight years and eight months’ managerial experience. This was a mistake and she misinterpreted the GD R 2 form.
[28] She said she was appointed based on her performance and experience during the interview process. She denied that she was guilty of misrepresentation. After she wrote an audi letter her application was not eliminated. As a result, her dismissal was substantively unfair.
[29] Under cross-examination the applicant conceded that it was a human error that she submitted incorrect calculations. She acknowledged this error and the respondent decided to appoint her into the position of Deputy Principal. The applicant disclosed that at the time of her application she had lost her husband and son in the same year or period. And she was depressed. Her depression and dealing with the loss of family members could have contributed to her making mistakes in as far as calculation of managerial experience was concerned. She admitted and confirmed the mistakes she made before her appointment. According to the applicant, she met all the inherent requirements of the position. The applicant understood the implications of signing a declaration.
ANALYSIS OF EVIDENCE AND ARGUMENT
[30] Although I have considered all the evidence I will only refer in this award to those aspects relevant to determine the dispute, as I am required in terms of s 138(7) of the LRA to provide an award with brief reasons.
[31] This dispute relates to an alleged unfair dismissal.
[32] Meaning of dismissal in terms of section 186 (1) (a) of the LRA means that an employer has terminated employment with or without notice.
[33] Section 192 (1) & (2) of the LRA stipulates that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal, if the existence of the dismissal is established, the employer must prove that the dismissal is fair.
[34] The basis of this arbitration award is be based solely on the charges that have led to the termination of the applicant’s services. That is, the charge was about an allegation of misrepresentation in as far as managerial experience was concerned. The issue relating to whether or not the applicant taught Mathematics and/or Physical Science in Grade 10,11 or 12 as her teaching background was never an issue in dispute.
[35] The respondent’s first witness was evasive and refused to respond to the question when she was asked by the applicant’s representative whether the applicant had five years’ managerial experience or not. This was despite the same witness confirming that there was no break in service when the applicant was appointed in August 2013 as a Head of Department. The respondent’s first witness said it was not her duty to count the number of managerial years that the applicant had. I reject this argument by the respondent’s witness. This was bizarre and absurd. The reason for my rejection was based on the fact that how would she know whether the information supplied by the applicant was correct and relevant or not. Moreover, if it was not her duty to count the number of years, then how did she know that the applicant fell way short of the five years’ managerial experience that was required in order to fill the position. On this ground alone, I find this witness not a credible witness. Moreover, this witness failed to exercise due diligence.
[36] In my view, the fact that this witness conceded that the applicant was a Head of Department since August 2013 up until she was appointed into the position of Deputy Principal in November 2018 was confirmation and an undisputed fact that the applicant had more than five years’ managerial experience at the time of her appointment on 1 November 2018.
[37] I disagree with Ms Elizabeth Nakampe’s argument that the applicant did not have five years’ managerial experience. The reason I say so is because if you add two years and eight months plus two years five and months and you get five years and one-month managerial experience. Moreover, it was not disputed that the applicant, at the time of her application was acting as a Deputy Principal up until she was appointed on 1 November 2018. In my view, date of application is not the same as date of appointment. When the applicant was acting, she was still occupying a managerial position and all those months are factored in and contributed to her experience.
[38] I accept Ms Elizabeth Nakampi’s testimony that the applicant had no intention to mislead and she did not disadvantage anyone. Moreover, I am alive to the fact that I need not apply a criminal law test that misrepresentation had to have an element of intent. I accept and have given regard to the fact that this is a labour related matter. The principal and the District Director who was vested with the authority to appoint the applicant were both satisfied that the applicant had five years’ managerial experience. This was confirmed by the Office of the District Director after she asked the applicant to submit representation regarding her managerial experience. Hence a decision to appoint was taken after all these due processes have been followed. Both the principal and the District Director did not dispute the fact that the applicant had met the legal requirements of this position. The applicant had the correct qualifications, teaching experience, leadership skills and managerial experience. In my view, and based on this confirmation alone by those in authority, the allegation of misrepresentation becomes moot and carried no weight as the applicant did not disadvantage or prejudice any potential candidate.
[39] Mr Peter Thage’s testimony was contradictory in a sense that he said, as Governing Body members, they do not interrogate the information provided by potential candidates. Even though I find this absurd, it was contradictory because he went on to say they normally check qualifications and experience of candidates. In my view, this was interrogation. As a result, in my view, if the District Director ( Ms Shirley Molobi) was satisfied that due diligence, quality assurance procedures and compliance procedures have been followed, then the allegation of misrepresentation stands to be dismissed. I accept her perspective that the applicant had met all the legal requirements of the position. Hence her appointment into the position of the Deputy Principal.
[40] I have no reason not to believe the applicant’s argument that she made an error by writing three years, eight months instead of two years and eight months. In my view, and by implication, the fact that the applicant owned up to her mistake and the respondent proceeded and took a decision to appoint her is indicative of the fact that the respondent was satisfied by the applicant’s response in relation to the allegation of misrepresentation. In essence, this meant that the applicant met all the legal requirements of the position. It was also probable that the applicant’s personal circumstances at the time of her application might have contributed to her committing the human errors as she was trying to deal with the loss her family members. In my view, the respondent accepted that the applicant had made a mistake. It was a human error hence her appointment into this position. Mind you, this was done after all quality assurance processes have been followed. It is further my finding that the applicant’s long service, that is, eighteen years teaching experience and her more than five years’ managerial experience gives more weight to the applicant’s case. It is further my finding that no one was disadvantaged or prejudiced by the human error. It is further my finding that discipline should not be used as a punitive measure. Under these circumstances, the allegation of misrepresentation was ill conceived because the respondent deliberately miscalculated the applicant’s management years. The decision to dismiss the applicant was inappropriate, unreasonable and harsh under the circumstances.
[41] I find the respondent’s first witness ( Ms Rejoice Manamela) evasive and not a credible witness. Ms Elizabeth Nakampi’s testimony was relevant, reliable and consistent. I found her to be a credible witness. I found Mr Peter Thage’s testimony inconsistent and contradicting. I find him not to be a reliable witness. I found Ms Shirley Molobi to be an honest, consistent and reliable witness. I found her to be a credible witness. I find the applicant to be a credible witness because she had nothing to hide and she had no intention to mislead or misrepresent her credentials.
[42] Under the circumstances, and on a balance of probability, it is my finding that the sanction of dismissal was substantively unfair.
[43] Therefore, I reject the respondent evidence and regard it as the most improbable version under the circumstances. I am persuaded and accept the evidence of the applicant as the most plausible and probable version under the circumstances.
[44] In the light of the analysis of material evidence and arguments in totality, the respondent has failed to discharge the onus of proving that the dismissal was substantively fair.
[45] I therefore make the following award:
AWARD
[46] The dismissal of the applicant, Ms Obedia Mphoreng Buys, is found to be substantively unfair.
[47] I order the respondent (Department of Education-Gauteng) to reinstate the applicant (Ms Obedia Mphoreng Buys) with effect from 26 August 2020 into her former position that she held before dismissal (Deputy Principal) and also to restore her benefits and service record as if the dismissal had not occurred. The applicant must report for duty in this position on the 21 July 2021.
[48] The respondent, (Department of Education-Gauteng) is ordered to pay the applicant, (Ms Obedia Mphoreng Buys) back-pay in the amount of R386,350.25 (Three Hundred and Eighty Six Thousand Three Hundred and Fifty Rand Twenty Five Cents) being the equivalent of eleven months’ salary as back pay for the loss of income resulting from the unfair dismissal.
[49] The above amount, less statutory deductions, must be paid to the applicant on the 21 July 2021.
[50] As provided for by section 143(2) of the LRA, any unpaid amount due in terms of this award will attract interest at the rate prescribed in terms of section 2 of the Prescribed Rate of Interest Act, Act 55 of 1975, as from the date on which it was due.
ELRC Part-time Commissioner
Paul Phundu
Commissioner: PAUL PHUNDU
Date of Award: 05 JULY 2021
In the ARBITRATION between
OBEDIA MPHORENG BUYS
(Union/Applicant)
And
DEPARTMENT OF EDUCATION-GAUTENG
(Respondent)
Union/Applicant’s representative: Adv Job Molapo
Union/Applicant’s address:
PO BOX 2121
Hammanskraal
Pretoria 0400
Telephone: 082 692 9029
Telefax:
E-mail: ombuys@gmail.com
Respondent’s representative: Ms Minah Ralioma
Respondent’s address: Gauteng Department of Education
Johannesburg
2000
Telephone: 011 631 2172
Telefax:
E-mail: Patrick.Selowa@gauteng.gov.za
DETAILS OF HEARING AND REPRESENTATION
[1] This is the award in the arbitration between, Ms Obedia Mphoreng Buys (hereinafter referred to as the Applicant) and Department of Education-Gauteng, (hereinafter referred to as the Respondent). The matter was set down for arbitration virtually on 27 January, 15 April and 11 June 2021.
[2] At the date of dismissal, the Applicant was earning a basic monthly salary of R35 122.75 as a Deputy Principal under the auspices of the Gauteng Department of Education. The Applicant was dismissed after an appeal on 28 August 2020.
[3] The applicant was present at the arbitration hearing and was represented by, Adv Job Mzondi Molapo, Instructed by S.Nkosi Attorneys. The respondent was represented by, Ms Minah Ralioma, its Employee Relations Official.
[4] The arbitration hearing was held under the auspices of the Council in terms of section 191(5) (a) of the Labour Relations Act 66 of 1995, as amended (the Act). The award is issued in terms of section 138 (7) of the Act.
[5] Bundle of documents marked annexure “A” and “B” were admitted into evidence and the content was not disputed.
[6] The proceedings were digitally recorded. I have also kept handwritten notes.
[7] Both parties submitted written closing arguments and these submissions were also considered.
ISSUE TO BE DECIDED
[8] I have to determine whether or not the dismissal of the applicant was substantively fair.
[9] I also have to determine the appropriate relief if I find that the applicant’s dismissal was substantively unfair. The relief sought by the applicant is reinstatement.
BACKGROUND TO THE ISSUE
[10] The applicant was in the employ of the Department of Education-Gauteng as a Deputy Principal since 1 November 2018 until her dismissal on 26 August 2020.
[11] The applicant appeared before the internal disciplinary hearing where she was charged with the following misconduct:
“Charge: “It is alleged that on 24 July 2018, when you applied for the position of Deputy Principal at
Lehwelereng Secondary School, you provided false information that indicated that you
have the following experience,
a. Post level 2 post held from August 2013 for a period of five years; and
b. Post level 2 held from August 2013 to April 2016, i.e., for a period of 3 years and 6 months.
[12] On 28 August 2020, the applicant was found guilty and subsequently dismissed.
[13] She referred an alleged unfair dismissal dispute to the Council for conciliation and arbitration. Conciliation failed and the certificate of non-resolution of the dispute was issued. The matter proceeded to arbitration. In terms of relief, the applicant prayed for reinstatement.
[14] The applicant challenged only the substantive fairness of her dismissal.
SURVEY OF EVIDENCE AND ARGUMENT
The respondent’s case
The respondent had three witnesses who testified in support of its case as follows:
[15] Ms Rejoice Manamela testified under oath that she is employed by the respondent as an Assistant Director-Human Resources Management. Amongst her duties, is selection and recruitment. She said the applicant applied for a Deputy Principal position. The applicant was shortlisted and interviewed for the position of Deputy Principal at Lehwereleng Secondary School. The applicant was subsequently appointed into the position of Deputy Principal at Lehwereleng Secondary School in November 2018. From September 2013, the applicant was appointed as a Head of Department at Swartklip Secondary School in Mpumalanga. On 1 May 2016 she was transferred from Swartklip Secondary School to Lehwereleng Secondary School. At the time of the transfer she occupied the same position of a Head of Department, which was a managerial position. It was not true that Swartklip Secondary School offered subjects in Grade 10 to Grade 12 in 2013. It was also not true that the applicant had five years’ managerial experience.
[16] The applicant submitted false and incorrect information when she submitted form GDR2 wherein she indicated that she had three years and eight months’ experience as a Head of Department (‘HOD’) at Swartklip Secondary School. The applicant had two years and eight months’ experience as an HOD at Swartklip Secondary School. The applicant was aware when she applied for the position of Deputy Principal that submission of false information could lead to disqualification and she could be charged with misconduct for misrepresentation. She said the respondent acted fairly by dismissing the applicant.
[17] Under cross-examination the respondent’s witness confirmed that on 11 September 2018, an audi letter was sent to the applicant by the District Director, Ms Shelly Molobi, wherein the applicant was asked to clarify the exact number of years she had as a Head of Department in Mpumalanga. The applicant confirmed in writing to the District Director that she had two years and eight months’ experience as a Head of Department in Mpumalanga. The respondent’s witness further confirmed that the applicant joined Mahwelereng Secondary School as a Head of Department in May 2016. The applicant confirmed applying for the position of Deputy Principal on 24 July 2018. During this time, she was still a Head of Department and there was no break in service. The witness testified that it was not her duty to count the applicant’s number of years as a manager. The witness further confirmed that she was not sure whether the number of years as a manager as indicated in the form by the applicant was a human error or not. The applicant was advised to withdraw her application and she refused to do so. In conclusion the witness agreed that the applicant was an HOD since August 2013 up until 1 November 2018.
[18] Ms Elizabeth Nakampi testified under oath that she is employed by the respondent as a Principal at Lehwelereng Secondary School. One of her responsibilities, amongst others, was to oversee school activities and manage staff. The applicant applied for the position of a Deputy Principal. As a Principal, she was appointed as the chairperson of the interview panel. All potential candidates used GDE 2R forms to apply for the position. This form consisted of Personal Information, Previous Employment and Experience. The criteria used in shortlisting was qualifications, number of years in teaching and managerial experience.
[19] The school was established in 2012 and it did not offer Grade 10 to 12. The highest grade was Grade 8. The applicant joined Swartklip Secondary School in August 2013.The applicant submitted incorrect and misleading information by stating that she taught Grade 10 and Grade 12 Mathematics and Physical Sciences. While at Swartklip Secondary School, the applicant had two years and eight months’ managerial experience. The applicant joined Lehwelereng Secondary School on 1 May 2016. At the time of her application for Deputy Principal position, the applicant had two years and two months’ managerial experience since she joined Lehwelereng Secondary School. It was untrue that the applicant had five years’ managerial experience. Any incorrect information may lead to misconduct. The applicant was discharged for committing misconduct and her dismissal was fair. The applicant indicated in her application form that she had eight years and eight months’ managerial experience and this was incorrect and misleading.
[20] Under cross-examination, the respondent’s witness confirmed that the applicant was appointed as a Deputy Principal at Lehwelereng Secondary School on 1 November 2018. The respondent’s witness, Ms Elizabeth Nakampi conceded that the applicant had five years’ managerial experience. The respondent witness confirmed that she had a good relationship with the applicant. While at Swartklip Secondary School the applicant wrote that she had three years eight months’ managerial experience and this was incorrect. Ms Elizabeth Nakampi further stated that she did not say the applicant had an intention to mislead. She further stated that the applicant did not disadvantage anyone. She concluded by stating that the panel did not interrogate the information provided by the candidates.
[21] Mr Peter Thage testified under oath that he is a School Governing Body member at Lehwelereng Secondary School. GDE 2R form was used to shortlist potential candidates. As Governing Body Members they are were all trained to use the forms. However, they do not interrogate the information provided. They normally check qualifications and experience.
[22] Under cross examination, Mr Peter Thage recommended candidate “B” and not the applicant. The applicant was one of the recommended candidates. The applicant was number one on the list of recommended candidates.
Summary of the Applicant’s Evidence and Arguments
The applicant had two witnesses who testified in support of his case as follows:
[23] Ms Shirley Molobi testified under oath that she was employed by the Respondent as a District Director. She said schools were allowed to run with the recruitment process, recommendation was submitted to her office after all quality assurance processes have been concluded. She would then implement the recommendation if she was satisfied. She was told that SADTU Themba Branch lodged a grievance regarding misrepresentation and experience of the applicant. She then took it upon herself to initiate a preliminary investigation. On the 11 September 2019, she issued an audi letter to the applicant and the applicant responded through her union.
[24] She decided to appoint the applicant as a Deputy Principal and later dealt with consequence management. She confirmed that the applicant had met all the requirements of the position. She had the necessary leadership skills, managerial experience and teaching experience. After the appointment, she did not detect any misrepresentation on the part of the applicant. The applicant was appointed after compliance procedures have been followed. However, she had doubts about the information provided by the applicant.
[25] No cross examination.
[26] Ms Obedin Buys testified under oath that she was employed by the Respondent as a Head of Department and she applied for Deputy Principal Position in August 2018 at Lehwelereng Secondary School. At the time of her application she was an Acting Deputy Principal. She was never trained to fill in the GDR 2 Form. This form was used to apply for any vacant position within the Department of Education. She received an audi letter from Labour Relations asking her to respond as to why she should not be charged for misconduct relating to allegation of misrepresentation. She responded to the request around September 2018. The respondent decided to appoint her into the position of Deputy Principal on 1 November 2018. According to her, this meant that the respondent was satisfied with the information she provided.
[27] She was appointed as a Head of Department at Swartklip High School in August 2013. She later applied for horizontal transfer from Swartklip High School to Lehwelereng Secondary School and resumed her duties at this school on 1 May 2016. By the time she was appointed as a Deputy Principal on 1 November 2018 she had more than five years’ managerial experience. The applicant stated that she had no intention to mislead the respondent. She has eighteen years’ teaching experience, adequate leadership skills and five years’ managerial experience. The respondent did not provide any names of the candidates who were disadvantaged by her appointment. The applicant disagreed with the allegation that she did not have five years’ managerial experience. The applicant conceded that she made a mistake by writing that she had three years and eighteen months’ managerial experience whilst at Lehwelereng Secondary School. She meant to write two years and eight months. She said this was an incorrect calculation and a human error and she had no intention to mislead or misrepresent her credentials. She later conceded that she indicated in the forms that she had eight years and eight months’ managerial experience. This was a mistake and she misinterpreted the GD R 2 form.
[28] She said she was appointed based on her performance and experience during the interview process. She denied that she was guilty of misrepresentation. After she wrote an audi letter her application was not eliminated. As a result, her dismissal was substantively unfair.
[29] Under cross-examination the applicant conceded that it was a human error that she submitted incorrect calculations. She acknowledged this error and the respondent decided to appoint her into the position of Deputy Principal. The applicant disclosed that at the time of her application she had lost her husband and son in the same year or period. And she was depressed. Her depression and dealing with the loss of family members could have contributed to her making mistakes in as far as calculation of managerial experience was concerned. She admitted and confirmed the mistakes she made before her appointment. According to the applicant, she met all the inherent requirements of the position. The applicant understood the implications of signing a declaration.
ANALYSIS OF EVIDENCE AND ARGUMENT
[30] Although I have considered all the evidence I will only refer in this award to those aspects relevant to determine the dispute, as I am required in terms of s 138(7) of the LRA to provide an award with brief reasons.
[31] This dispute relates to an alleged unfair dismissal.
[32] Meaning of dismissal in terms of section 186 (1) (a) of the LRA means that an employer has terminated employment with or without notice.
[33] Section 192 (1) & (2) of the LRA stipulates that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal, if the existence of the dismissal is established, the employer must prove that the dismissal is fair.
[34] The basis of this arbitration award is be based solely on the charges that have led to the termination of the applicant’s services. That is, the charge was about an allegation of misrepresentation in as far as managerial experience was concerned. The issue relating to whether or not the applicant taught Mathematics and/or Physical Science in Grade 10,11 or 12 as her teaching background was never an issue in dispute.
[35] The respondent’s first witness was evasive and refused to respond to the question when she was asked by the applicant’s representative whether the applicant had five years’ managerial experience or not. This was despite the same witness confirming that there was no break in service when the applicant was appointed in August 2013 as a Head of Department. The respondent’s first witness said it was not her duty to count the number of managerial years that the applicant had. I reject this argument by the respondent’s witness. This was bizarre and absurd. The reason for my rejection was based on the fact that how would she know whether the information supplied by the applicant was correct and relevant or not. Moreover, if it was not her duty to count the number of years, then how did she know that the applicant fell way short of the five years’ managerial experience that was required in order to fill the position. On this ground alone, I find this witness not a credible witness. Moreover, this witness failed to exercise due diligence.
[36] In my view, the fact that this witness conceded that the applicant was a Head of Department since August 2013 up until she was appointed into the position of Deputy Principal in November 2018 was confirmation and an undisputed fact that the applicant had more than five years’ managerial experience at the time of her appointment on 1 November 2018.
[37] I disagree with Ms Elizabeth Nakampe’s argument that the applicant did not have five years’ managerial experience. The reason I say so is because if you add two years and eight months plus two years five and months and you get five years and one-month managerial experience. Moreover, it was not disputed that the applicant, at the time of her application was acting as a Deputy Principal up until she was appointed on 1 November 2018. In my view, date of application is not the same as date of appointment. When the applicant was acting, she was still occupying a managerial position and all those months are factored in and contributed to her experience.
[38] I accept Ms Elizabeth Nakampi’s testimony that the applicant had no intention to mislead and she did not disadvantage anyone. Moreover, I am alive to the fact that I need not apply a criminal law test that misrepresentation had to have an element of intent. I accept and have given regard to the fact that this is a labour related matter. The principal and the District Director who was vested with the authority to appoint the applicant were both satisfied that the applicant had five years’ managerial experience. This was confirmed by the Office of the District Director after she asked the applicant to submit representation regarding her managerial experience. Hence a decision to appoint was taken after all these due processes have been followed. Both the principal and the District Director did not dispute the fact that the applicant had met the legal requirements of this position. The applicant had the correct qualifications, teaching experience, leadership skills and managerial experience. In my view, and based on this confirmation alone by those in authority, the allegation of misrepresentation becomes moot and carried no weight as the applicant did not disadvantage or prejudice any potential candidate.
[39] Mr Peter Thage’s testimony was contradictory in a sense that he said, as Governing Body members, they do not interrogate the information provided by potential candidates. Even though I find this absurd, it was contradictory because he went on to say they normally check qualifications and experience of candidates. In my view, this was interrogation. As a result, in my view, if the District Director ( Ms Shirley Molobi) was satisfied that due diligence, quality assurance procedures and compliance procedures have been followed, then the allegation of misrepresentation stands to be dismissed. I accept her perspective that the applicant had met all the legal requirements of the position. Hence her appointment into the position of the Deputy Principal.
[40] I have no reason not to believe the applicant’s argument that she made an error by writing three years, eight months instead of two years and eight months. In my view, and by implication, the fact that the applicant owned up to her mistake and the respondent proceeded and took a decision to appoint her is indicative of the fact that the respondent was satisfied by the applicant’s response in relation to the allegation of misrepresentation. In essence, this meant that the applicant met all the legal requirements of the position. It was also probable that the applicant’s personal circumstances at the time of her application might have contributed to her committing the human errors as she was trying to deal with the loss her family members. In my view, the respondent accepted that the applicant had made a mistake. It was a human error hence her appointment into this position. Mind you, this was done after all quality assurance processes have been followed. It is further my finding that the applicant’s long service, that is, eighteen years teaching experience and her more than five years’ managerial experience gives more weight to the applicant’s case. It is further my finding that no one was disadvantaged or prejudiced by the human error. It is further my finding that discipline should not be used as a punitive measure. Under these circumstances, the allegation of misrepresentation was ill conceived because the respondent deliberately miscalculated the applicant’s management years. The decision to dismiss the applicant was inappropriate, unreasonable and harsh under the circumstances.
[41] I find the respondent’s first witness ( Ms Rejoice Manamela) evasive and not a credible witness. Ms Elizabeth Nakampi’s testimony was relevant, reliable and consistent. I found her to be a credible witness. I found Mr Peter Thage’s testimony inconsistent and contradicting. I find him not to be a reliable witness. I found Ms Shirley Molobi to be an honest, consistent and reliable witness. I found her to be a credible witness. I find the applicant to be a credible witness because she had nothing to hide and she had no intention to mislead or misrepresent her credentials.
[42] Under the circumstances, and on a balance of probability, it is my finding that the sanction of dismissal was substantively unfair.
[43] Therefore, I reject the respondent evidence and regard it as the most improbable version under the circumstances. I am persuaded and accept the evidence of the applicant as the most plausible and probable version under the circumstances.
[44] In the light of the analysis of material evidence and arguments in totality, the respondent has failed to discharge the onus of proving that the dismissal was substantively fair.
[45] I therefore make the following award:
AWARD
[46] The dismissal of the applicant, Ms Obedia Mphoreng Buys, is found to be substantively unfair.
[47] I order the respondent (Department of Education-Gauteng) to reinstate the applicant (Ms Obedia Mphoreng Buys) with effect from 26 August 2020 into her former position that she held before dismissal (Deputy Principal) and also to restore her benefits and service record as if the dismissal had not occurred. The applicant must report for duty in this position on the 21 July 2021.
[48] The respondent, (Department of Education-Gauteng) is ordered to pay the applicant, (Ms Obedia Mphoreng Buys) back-pay in the amount of R386,350.25 (Three Hundred and Eighty Six Thousand Three Hundred and Fifty Rand Twenty Five Cents) being the equivalent of eleven months’ salary as back pay for the loss of income resulting from the unfair dismissal.
[49] The above amount, less statutory deductions, must be paid to the applicant on the 21 July 2021.
[50] As provided for by section 143(2) of the LRA, any unpaid amount due in terms of this award will attract interest at the rate prescribed in terms of section 2 of the Prescribed Rate of Interest Act, Act 55 of 1975, as from the date on which it was due.
ELRC Part-time Commissioner
Paul Phundu
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ELRC 302 -20 /21 NW
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