Commissioner: Jeffrey Nkuna
Case No.: ELRC 747 -20/21 LP
Date of the Award: 21 JULY 2021
In the matter between:
SADTU OBO ZACHARIA KHATHUTSHELO MUKWEVHO
DEPARTMENT OF EDUCATION: LIMPOPO PROVINCE
DETAILS OF THE HEARING AND REPRESENTATION
1. This award is rendered in terms of section 138(7) of the Labour Relations Act, 66 of 1995 as amended (the LRA).
2. The dispute was referred in terms of section 191(1) & 191(1) (b) (ii) of the Labour Relations Act 66 of 1995 as amended (“LRA”). The hearing was held on the 28 June 2021 at Tshikota Secondary School. Makhado, Limpopo Province.
3. The Applicant, Zacharia Khatshulelo Mukwevho (Employee), was represented by Mr Hendrick Makhafola an official from SADTU. The Respondent, Limpopo Department of Education was represented by Mr Mokgoba Matlou, its Labour Relations Officer.
4. The proceedings were manually and digitally recorded and were finalized on the 28 June 2021. The Both parties made their closing arguments and same have been considered in this award.
NATURE OF THE DISPUTE
5. The dispute is about an alleged unfair labour practice.
BACKGROUND TO THE DISPUTE
6. . The Employee has been employed as Educator from 2006 to date. The Employee initially started working as an Educator in 1990 and decided to take a break in 2005. He later re-joined the Department of Education, Limpopo as an Educator in 2006 and remained in the profession to date. The Employee was charged with acts of misconduct and initially faced two charges with 10 counts. The Employee faced only 1 charge and 2 counts and the rest of the charges were withdrawn. Charge1: Count 1 was that he failed to submit the Technology and Grade 9 scripts and mark sheets for moderation. Charge 1: Count 2 was that he failed to draw subject programme of assessments. The Employee was found guilty of both counts and was issued with a three months suspension without pay and a final written warning. The Employee is now challenging the substantive fairness of the findings and the sanction. The relief sought by the Applicant is the setting aside of the sanction imposed by the Respondent.
ISSUES TO BE DECIDED
7. I am required to determine whether the Respondent’s act or omission amounted to an unfair labour practice or not. If so, to order the appropriate relief.
SURVEY OF EVIDENCE AND ARGUMENT
8. The Employee, Mr Khatshulelo Zacharia Mukwevho, testified that he was employed as an educator in 1990 and he resigned in 2005. He then rejoined the Employer as an Educator from 2006 to date. He further testified that he is still employed as an Educator at Tshikota Secondary School. He further testified that he was teaching Natural Sciences and Technology for Grade 09, Mathematics and Physical Sciences for Grade 10. He further testified that during April 2019 he was evicted from the school by the parents. That resulted in him reporting to the Circuit Office for more than 2 years. He was then instructed to return to the school from 01 June 2021. When he returned to the school he was allocated to teach Life Orientation for Grade 8, Natural Sciences for Grade 9 and Physical Sciences for Grade 12. He further testified that he was evicted from the school by the parents who accused him of having failed to submit the reports. He was evicted from the school together with four other educators and were told not set their feet again at the school. The parents were supposed to receive their reports when the school closed on the 15 March 2019. He testified that on the 20 March 2019 he received a WhatsApp message that he must attend a meeting on the 21 March 2021. He did not attend the meeting and sent an apology. He testified that he had submitted the schedules and were verified on the 15 March 2019 and taken to the Circuit Office. He further testified that he was called to the Principal’s office and informed that there were problems with the schedules he submitted. There were gaps which confirmed that certain learners have-not submitted their tasks. He was then confronted by the Principal and told that he must ensure that all leaners complied. He responded by stating that he has requested the assistance of the HOD and that there is nothing further which could have been done. It was put the Employee that he failed to submit the schedules as required. This should have been done within 3 days after finishing marking. The Employee claimed to have submitted but cannot remember the date he did that.
9. The Employer’s first witness, Mr Muvhango Marks Mphelo, testified that he is the HOD for Natural Sciences. He further testified that in 2019 he was working at Tshikota Secondary School and the Employee reported to him as the HOD. The Employee was teaching among other subjects Technology Grade 09. The Employee was required to submit the schedules as prescribed. This was supposed to be done within three days after finishing marking the scripts. The document produced by the Employee is not legitimate as it does not have the signature of the HOD. The Employee was expected to have approached the parents of the leaners who have not done the tasks. The parents were then expected to acknowledge that the tasks were done by respective leaners. All of this, the Employee failed to do. The documents which the Employee submitted cannot be considered to be the schedules. The documents he submitted should have had the official school stamp and the signature of the subject HOD. The Employee was called by the Principal to rectify the situation. He failed to do that and refused to comply with the lawful instruction. In addition the Employee failed to attend the meeting which was intended to address his non-compliance.
10. The Employer’s second witness, Ms Olivia Raswiswi, testified that she was employed as the Administration Clerk at Tshikota Secondary School. She further testified the schedules will be submitted to her after same was submitted to the HOD for verification. Her duties included among other things, typing the generating the schedules. She further testified that the schedule is generated by the information in the mark sheets. The mark sheets were supposed to be moderated and signed by the HOD of the specific subject. Thereafter, it was to be submitted to her. She further testified that the document she received from the Employee could not be regarded as proper schedules as it did not have the school official stamp and the signature of the relevant HOD.
11. The Employer’s third witness, Phanuel Naledzani Leshabani, testified that he is employed at Elim High School as an Educator. He further testified in 2019 he was employed at Tshikota Secondary as the HOD for Commerce. He further testified that the Employee has failed to submit the schedules as required. He further testified that for the schedule to be valid it must have the school official stamp and the signature of the HOD. He further testified what the document submitted by the Employee cannot regarded as the official schedule. He further testified that the Principal requested the Employee to rectify the situation, but he failed. What the Employee claimed to have submitted was not moderated.
ANALYSIS OF THE EVIDENCE AND ARGUMENTS
12. The dispute was referred for arbitration in terms of section 186(2) (a) of the LRA. I am required to determine whether the Respondent’s conduct constituted an unfair labour practice. Section 186 (2) provides “Unfair labour practice" means the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee.
13. I am required to issue an award with brief reasons. I do not wish to offer an exhaustive survey of all the evidence and arguments presented at the arbitration hearing. I have had regard to everything presented to me, and what follows is a brief summary of the evidence relevant to my findings only.
14. It is common cause that the Employee was found to have contravened the Employer’s Policy in that he failed to submit schedules for the Technology subject for the Grade 9 leaners at Tshikota Secondary School. The Employee pleaded not guilty in the disciplinary hearing and denied that he contravened any policy. The Employee’s testimony is that he had submitted the schedule as required. He further testified that there were gaps in his submission owing to the learners who did not submit the tasks which were given to them. He further testified that he engaged the Principal and informed him that there was nothing he can do about the situation as it was beyond his control. The Employee’s evidence was contradicted by the testimony of three witness of the Employer. The testimony by three witness confirmed that the Employee failed to submit the schedules as required. This evidence was not contradicted in any material respects.
15. Evidence was led that the Employee was required to submit the schedules within three days after completing the marking. Further evidence was that the schedules were to be submitted to the relevant HOD for moderation. These schedules to be considered to be valid, must have the school official stamp and the signature of the HOD. What the Employee consider to be a submission did not have the school official stamp and the signature of the HOD.
16. The onus is on the Employee to prove that the Employer’s act or omission amounted to unfair labour practice. There was no evidence presented before to show that the Employee has indeed submitted the required schedules. There was overwhelming and compelling evidence by the Employer that the Employee failed to do what was required of him. Evidence was led that in the case of the gaps or failure by the leaners to submit the tasks, the Employee was expected to engage the parents. The parents were required to acknowledge and confirm that the respective leaners failed to comply. No evidence was tendered by the Employee to show that he had engaged with the relevant parents.
17. My analysis is that the Employer’s version is the most probable version that the Employee failed to submit the schedules as required. My findings are that the Employee has on a balance of probabilities failed to prove that Respondent has committed an act of unfair labour practice by finding him guilty of contravention of the Employer’s Policy and issuing him with three month suspension without pay and a final written warning.
18. The Respondent, Limpopo Department of Education, Limpopo Province, did not commit an act of unfair labour practice against the Applicant, Mr Khathutshelo Mukwevho by finding him guilty of the contravention of the Policy and imposing the 3 one months suspension without pay and a final written warning.
19. The application is dismissed; and
20. No order as to costs.
PANELIST: JEFFREY NKUNA