ELRC 12-20/21 GP
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Award Date:
28 July 2021
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Case Number: ELRC 12-20/21 GP
Commissioner: M.A. HAWYES
Date of Award: 28TH July 2021
In the ARBITRATION between
L. Mothamaha
(Union/Applicant)
And
Gauteng Department of Education
(First Respondent)
Union/Applicant’s representative: N/A In Person
Union/Applicant’s address:
Telephone: 072 174 2311
Telefax:
E-mail:
Respondent’s representative: Mr. Vusumuzi Ndlovu
Respondent’s address:
Telephone: 011- 389 6330
Telefax:
E-mail:
DETAILS OF HEARING AND REPRESENTATION
1. The case was scheduled for arbitration and effectively sat on the 28th April 2021, the 13th and 14th May 2021, the 3rd June 2021 and was finalized on the 9th July 2021. The arbitration took place in person at the Orion Primary School. After completion of the arbitration the parties requested the opportunity to submit written closing arguments by the 16th June 2021. The closing arguments were timeously received and my award now follows.
2. The Applicant, L. Mothamaha attended the entire arbitration in person with no assistance from a representative. Mr. Vusumuzi Ndlovu, a labour relations official, represented the Respondent, Department of Education: Gauteng. The proceedings were digitally recorded and detailed long hand notes were also kept.
3. The parties made use of a number of different bundles of documents. The Applicant had five bundles that were marked from A1 to A5. The Respondent had three bundles that were marked from B1 to B3.
ISSUE IN DISPUTE
4. 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
5. The Respondent employed the Applicant since 1998 as an educator psychologist at the Ekurhuleni South District office (District office). The Applicant had previously been employed as a PL 1 educator at the Orion Primary School from 1988 to 1998.
6. At the time of her dismissal the Applicant earned R45749-55 (basic) per month.
7. The Applicant was charged with two counts of misconduct at the ensuing disciplinary enquiry:
Allegation 1
It is alleged that on or around the 21st September 2018 while on duty at the Ekurhuleni South District office, you unjustifiably prejudiced the administration, discipline and efficiency of the Department in that you refused to process the files for LSEN learners.
Considering the above, you are thus charged with misconduct in terms of section 18 (1) (f) of the Employment of Educators Act 76 of 1998 as amended.
Allegation 2
It is alleged that in or around September 2018, you committed an act of dishonesty in that you claimed for kilometers which you travelled for private purposes.
Considering the above, you are thus charged with misconduct in terms of item 18 (1) (ee) of the Employment of Educators Act, 76 of 1998 as amended.
SURVEY OF THE RESPONDENT’S EVIDENCE AND ARGUMENT
8. The Respondent led the evidence of a number of witnesses. The first was Mr Steven Maboa, a Chief Education Specialist (CES) at the District office and the immediate supervisor to the Applicant. The second witness was Ms. Cindy Scholtz who testified from New Zealand via Zoom online media. Scholtz deposed that whilst still employed by the Department of Education she was a registered psychologist (non-practicing) and CE Counselor who interacted closely with the Applicant in the performance of her duties. The third witness was Ms. Elveira Francis, a Chief Education Specialist (CES) at the Inclusion Special Schools Unit (ISS). The fourth witness was Ms. Nicole Koen, an Inclusion Specialist at the same ISS unit which was headed up by Maboa. The fifth and final witness was Ms. Zuereka Karen van Rooyen, a deputy director in the Finance and Administration department at the District office and whose testimony related to Allegation 1 leveled against the Applicant.
9. The Applicant and the witnesses all work in a unit that identifies learners that require placement in special schools. Before a learner can be transferred from a normal school to a special school various reports are compiled which culminates in the issue of a LSEN number. Once an LSEN number is issued a learner will be placed in a special school. The Applicant was able to issue out LSEN numbers as part of her duties as the educator psychologist at the District office.
10. Scholtz testified that she approached the Applicant and requested that she issue out LSEN numbers on a number of files. The Applicant refused and insisted that Scholtz motivate in writing why there was a need for affected learners to get their LSEN numbers and also utilize form GDE 38/4 for that purpose.
11. Both Maboa and Scholtz testified that the Respondent had discarded the use of form GDE 38/4 since 2016 when a new SIAS policy had been put in place. They testified further that a motivation for eligible learners to get LSEN numbers is embedded in the new SIAS policy and for that reason there was no need for further motivation. Witnesses Francis and Koen corroborated the evidence of Scholtz and Maboa on the implementation of the new SIAS system.
12. Scholtz approached Maboa concerning the Applicant’s conduct and Maboa issued a written instruction to the Applicant to issue the LSEN numbers for the learners immediately. The Applicant refused citing, inter alia, ethical issues of the psychologists’ profession for her reluctance to issue out the LSEN numbers.
13. It is common cause that Maboa later approached another psychologist (Mr Dingaan Mtshali), who is at the same level as the Applicant, to issue out the LSAN numbers on the basis of the information contained in the SIAS forms, which Scholtz and Koen had prepared without them using form GDE 38/4 to motivate for LSEN numbers. Mtshali issued the LSEN numbers without requiring any further motivation.
14. Maboa gave detailed testimony on Allegation 2 which related to travelling claims compiled by the Applicant for the period of the 1st September 2018 to the 30th September 2018. The Applicant claimed travelling costs for various days from her place of residence to the District office which was not permitted by the Respondent’s travel policy. (See the Department of Transport: Subsidized Motor Transport Handbook Version 1 of 2017 paragraph 3.2.4 and 3.2.5 found at Bundle A2, page 154).
15. The Applicant was given an opportunity to correct her claim form and corrected some and left other identical claims from home to office unchanged. Maboa testified that the Applicant re-submitted the claim direct to the transport office thus bypassing his oversight role in the matter. The travelling claim was eventually paid to the Applicant. The Applicant only removed the entries for the 3rd, 7th 10th, 13th, 20th, 23rd September and left the other entries including claims from the home to the District office unchanged.
16. It was submitted that the Applicant was aware of the rule against claiming travelling costs from her place of residence to the District office because she correctly excluded travel claims from home to the office on the 6th, 8th, 9th and 15th September 2018 as is captured at Bundle B, pages 45 and 47.
17. Maboa testified that the handwriting and signature was not his as is reflected at Bundle B3 at page 52 since he had not authorized the transactions. He also pointed out that his signature and handwriting are accompanied by the date of the 4th October 2018 which is a few days before the signature of a subordinate dated the 9th October 2018. Maboa attributed this to fraud.
18. It was also submitted that the Applicant’s submission of the revised claim form dated 9th October 2018 to the transport section without Maboa’s input and the use of the initial route form at Bundle B, page 53, is a clear indication that the Applicant hid the submission from her supervisor and underscores the existence of an intent to commit an act of dishonesty.
19. Maboa testified that the Applicant had previously been charged for a similar offence through internal disciplinary procedures and a final written warning was imposed on her.
SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENT
20. The Applicant testified under oath and called no witnesses although she had previously indicated that she wanted to call four witnesses via online media. On the 9th July 2021 she had a change of heart and elected to call no witnesses.
21. In respect of Allegation 1 the Applicant insisted that she required the completion of GDE form 38/4 together with a sit down discussion and verbal motivation by Scholtz before she would issue the LSEN numbers. The ethics of her profession precluded her from making decisions which would forever affect the lives of learners and their parents without sufficient motivation.
22. The Applicant denied refusing to obey Maboa’s instruction to issue the LSEN numbers due an intervening long weekend which created the impression that she had ignored his instruction.
23. In respect of Allegation 2 the Applicant referred to paragraph 3.1.2 of the Subsidized Motor Transport Handbook, Scheme B regarding private and official trips (Bundle A2, page 53) and argued that when she did official trips from her place of residence to another place she did so via the District office to sign in. The reason for doing so is that should anything happen to her without having signed in the trip would not be deemed official. Thus the trips from home to work are deemed as official trips because she was required to work at a place other than her normal place of residence and thus the whole round trip was regarded as an official trip.
24. The Applicant denied that she took the amended claim form direct to the transport office and testified that she gave the corrected form to an intern to take it there.
25. The Applicant denied that she had the intention to act dishonestly by completing the claim form, later amending it and re-submitting it direct to the Transport office with the assistance of an intern.
26. The Applicant submitted that mistakes do happen in the course of duty and these should be corrected collegially in order to maintain healthy workplace and professional relationships.
27. During the course of cross-examination of Maboa, the Applicant did not dispute previously receiving a final written warning for similar misconduct and argued that she had not been correctly found guilty at the time and that the previous misconduct should not be taken into account in assessing the appropriate sanction in this case. At the time the Applicant conceded that she had not referred an unfair labour practice to the Council concerning the imposition of the said final written warning. The Applicant made no reference to the final written warning in her written closing arguments.
28. The Applicant asked the Panelist to consider her total of 32 years’ service to the Respondent in deciding the matter and asked to be retrospectively reinstated.
ANALYSIS OF EVIDENCE AND ARGUMENT
29. The onus rests on the Respondent to prove the various allegations of misconduct against the Applicant on a balance of probabilities.
30. I was impressed with the evidence of all the Respondent witnesses in particular Maboa and Scholtz.
31. It is evident from the facts that the Applicant did not obey Maboa’s exhortation to issue the LSEN numbers as a matter of urgency or at all. This is simply evidenced by the fact that Maboa was obliged to call on the services of another psychologist (Mtshali) to issue the LSEN numbers and it is common cause that he did so on the available information placed before him i.t.o the more recent SIS policy which had been in force since 2016. I find that there was no need to make use of form GDE 38/4 and that the Applicant had been issued with sufficient data in terms the SIS system to make a decision on the issue of LSEN numbers.
32. I find that the Applicant prejudiced the administration and efficiency of the Respondent by refusing to follow Maboa’s reasonable instruction for her to issue the LSEN numbers forthwith thus unreasonably delaying their issue. The Applicant’s allegation that she needed to follow professional ethics in making decisions has no applicability to the task that she was faced with and appears to a smokescreen to justify her insolent and intransigent inaction.
33. In respect of Allegation 2 the Applicant claimed for private travel from home to the District office in contravention of paragraphs 3.2.4 and 3.2.5 of the relevant Department of Transport travel policy. When confronted she sought to rely upon paragraph 3.1.2 of the same policy which reads as follows:
When an official is required to work at a place other than his/her normal place of duty and travels directly from his/her normal place of duty and travels directly to such other place it will be deemed to be an official trip, provided that that the distance deemed as official, shall be limited to the distance which it would have been, had the official travelled to such other place from his/her normal place of duty. The lesser distance of the official’s normal place of residence or his/her normal place of work to the other place will be deemed as official.
34. It clear that this subsection does not regard travel from an official’s private residence to their normal place of duty as official travel. This is specifically precluded by paragraphs 3.2.4 and 3.2.5 referred to above. It is intended to deal with situations where the employee travels to other places on official duty and makes it clear that the official travel will be from the employee’s normal place of duty unless the distance between the employee’s home to the other place is less than the distance from the office to the other place of official business.
35. It was intended to avoid the exact situation which the Applicant was guilty of and that was in some instances where she travelled officially elsewhere she would first go to the District office to sign in and then claim that as part of the official travel. This was clearly not permitted by clause 3.1.2. Clause 3.1.2 always regarded the starting point for official travel from the District office unless travel from the Applicant’s home to the outside official venue would be less than travelling from the District office to the outside official venue.
36. The Applicant conceded that the first September claim was flawed and made changes when Maboa pointed this out to her. The Applicant slyly did not make all the changes that were required and submitted the claim direct to the transport office. Whether the claim was submitted in person or through an intern makes no difference. The net result was that she bypassed her supervisor Maboa so that he could not check whether the claim had been filled in correctly the second time. I find that this action is consistent with the Applicant knowing that her actions were wrong and seeking to materially claim in the same illegal way, whilst avoiding the risk of detection.
37. The Applicant’s actions are also consistent with her conduct in Allegation 1. If she decided that her actions were justified it did not matter that others disagreed with her and pointed to the correct path of action. Her intransigence is further proof of her intention to claim for unauthorized private travel whilst hiding behind a plainly wrong interpretation of the Respondent’s travel policy.
38. In a number of instances the Applicant claimed in the correct manner and thus proved that she knew about the rule against claiming private travel from her place of residence to the District office.
39. Finally the Applicant had previously been found guilty of similar misconduct (claiming for private travel) committed in 2016 and was issued with a final written warning. The Applicant did not dispute that she was issued with such a warning but during cross examination of Maboa disputed that it could be taken into account. It is trite that a Panelist can and must consider previous misconduct in assessing an appropriate sanction. This is balanced against the Applicant’s alleged 32 years’ service with the Respondent.
40. Dishonesty destroys the trust relationship even if it is committed by an employee that has many years’ service with the employer, such as the Applicant. The Applicant had previously been issued with a final warning for similar conduct involving an element of dishonesty. I accordingly find that dismissal is the appropriate sanction in this matter.
AWARD
The dismissal of the Applicant, L. Mothamaha was fair. The Applicant is not entitled to any relief.
Commissioner: M.A. HAWYES
Date of Award: 28TH July 2021
In the ARBITRATION between
L. Mothamaha
(Union/Applicant)
And
Gauteng Department of Education
(First Respondent)
Union/Applicant’s representative: N/A In Person
Union/Applicant’s address:
Telephone: 072 174 2311
Telefax:
E-mail:
Respondent’s representative: Mr. Vusumuzi Ndlovu
Respondent’s address:
Telephone: 011- 389 6330
Telefax:
E-mail:
DETAILS OF HEARING AND REPRESENTATION
1. The case was scheduled for arbitration and effectively sat on the 28th April 2021, the 13th and 14th May 2021, the 3rd June 2021 and was finalized on the 9th July 2021. The arbitration took place in person at the Orion Primary School. After completion of the arbitration the parties requested the opportunity to submit written closing arguments by the 16th June 2021. The closing arguments were timeously received and my award now follows.
2. The Applicant, L. Mothamaha attended the entire arbitration in person with no assistance from a representative. Mr. Vusumuzi Ndlovu, a labour relations official, represented the Respondent, Department of Education: Gauteng. The proceedings were digitally recorded and detailed long hand notes were also kept.
3. The parties made use of a number of different bundles of documents. The Applicant had five bundles that were marked from A1 to A5. The Respondent had three bundles that were marked from B1 to B3.
ISSUE IN DISPUTE
4. 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
5. The Respondent employed the Applicant since 1998 as an educator psychologist at the Ekurhuleni South District office (District office). The Applicant had previously been employed as a PL 1 educator at the Orion Primary School from 1988 to 1998.
6. At the time of her dismissal the Applicant earned R45749-55 (basic) per month.
7. The Applicant was charged with two counts of misconduct at the ensuing disciplinary enquiry:
Allegation 1
It is alleged that on or around the 21st September 2018 while on duty at the Ekurhuleni South District office, you unjustifiably prejudiced the administration, discipline and efficiency of the Department in that you refused to process the files for LSEN learners.
Considering the above, you are thus charged with misconduct in terms of section 18 (1) (f) of the Employment of Educators Act 76 of 1998 as amended.
Allegation 2
It is alleged that in or around September 2018, you committed an act of dishonesty in that you claimed for kilometers which you travelled for private purposes.
Considering the above, you are thus charged with misconduct in terms of item 18 (1) (ee) of the Employment of Educators Act, 76 of 1998 as amended.
SURVEY OF THE RESPONDENT’S EVIDENCE AND ARGUMENT
8. The Respondent led the evidence of a number of witnesses. The first was Mr Steven Maboa, a Chief Education Specialist (CES) at the District office and the immediate supervisor to the Applicant. The second witness was Ms. Cindy Scholtz who testified from New Zealand via Zoom online media. Scholtz deposed that whilst still employed by the Department of Education she was a registered psychologist (non-practicing) and CE Counselor who interacted closely with the Applicant in the performance of her duties. The third witness was Ms. Elveira Francis, a Chief Education Specialist (CES) at the Inclusion Special Schools Unit (ISS). The fourth witness was Ms. Nicole Koen, an Inclusion Specialist at the same ISS unit which was headed up by Maboa. The fifth and final witness was Ms. Zuereka Karen van Rooyen, a deputy director in the Finance and Administration department at the District office and whose testimony related to Allegation 1 leveled against the Applicant.
9. The Applicant and the witnesses all work in a unit that identifies learners that require placement in special schools. Before a learner can be transferred from a normal school to a special school various reports are compiled which culminates in the issue of a LSEN number. Once an LSEN number is issued a learner will be placed in a special school. The Applicant was able to issue out LSEN numbers as part of her duties as the educator psychologist at the District office.
10. Scholtz testified that she approached the Applicant and requested that she issue out LSEN numbers on a number of files. The Applicant refused and insisted that Scholtz motivate in writing why there was a need for affected learners to get their LSEN numbers and also utilize form GDE 38/4 for that purpose.
11. Both Maboa and Scholtz testified that the Respondent had discarded the use of form GDE 38/4 since 2016 when a new SIAS policy had been put in place. They testified further that a motivation for eligible learners to get LSEN numbers is embedded in the new SIAS policy and for that reason there was no need for further motivation. Witnesses Francis and Koen corroborated the evidence of Scholtz and Maboa on the implementation of the new SIAS system.
12. Scholtz approached Maboa concerning the Applicant’s conduct and Maboa issued a written instruction to the Applicant to issue the LSEN numbers for the learners immediately. The Applicant refused citing, inter alia, ethical issues of the psychologists’ profession for her reluctance to issue out the LSEN numbers.
13. It is common cause that Maboa later approached another psychologist (Mr Dingaan Mtshali), who is at the same level as the Applicant, to issue out the LSAN numbers on the basis of the information contained in the SIAS forms, which Scholtz and Koen had prepared without them using form GDE 38/4 to motivate for LSEN numbers. Mtshali issued the LSEN numbers without requiring any further motivation.
14. Maboa gave detailed testimony on Allegation 2 which related to travelling claims compiled by the Applicant for the period of the 1st September 2018 to the 30th September 2018. The Applicant claimed travelling costs for various days from her place of residence to the District office which was not permitted by the Respondent’s travel policy. (See the Department of Transport: Subsidized Motor Transport Handbook Version 1 of 2017 paragraph 3.2.4 and 3.2.5 found at Bundle A2, page 154).
15. The Applicant was given an opportunity to correct her claim form and corrected some and left other identical claims from home to office unchanged. Maboa testified that the Applicant re-submitted the claim direct to the transport office thus bypassing his oversight role in the matter. The travelling claim was eventually paid to the Applicant. The Applicant only removed the entries for the 3rd, 7th 10th, 13th, 20th, 23rd September and left the other entries including claims from the home to the District office unchanged.
16. It was submitted that the Applicant was aware of the rule against claiming travelling costs from her place of residence to the District office because she correctly excluded travel claims from home to the office on the 6th, 8th, 9th and 15th September 2018 as is captured at Bundle B, pages 45 and 47.
17. Maboa testified that the handwriting and signature was not his as is reflected at Bundle B3 at page 52 since he had not authorized the transactions. He also pointed out that his signature and handwriting are accompanied by the date of the 4th October 2018 which is a few days before the signature of a subordinate dated the 9th October 2018. Maboa attributed this to fraud.
18. It was also submitted that the Applicant’s submission of the revised claim form dated 9th October 2018 to the transport section without Maboa’s input and the use of the initial route form at Bundle B, page 53, is a clear indication that the Applicant hid the submission from her supervisor and underscores the existence of an intent to commit an act of dishonesty.
19. Maboa testified that the Applicant had previously been charged for a similar offence through internal disciplinary procedures and a final written warning was imposed on her.
SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENT
20. The Applicant testified under oath and called no witnesses although she had previously indicated that she wanted to call four witnesses via online media. On the 9th July 2021 she had a change of heart and elected to call no witnesses.
21. In respect of Allegation 1 the Applicant insisted that she required the completion of GDE form 38/4 together with a sit down discussion and verbal motivation by Scholtz before she would issue the LSEN numbers. The ethics of her profession precluded her from making decisions which would forever affect the lives of learners and their parents without sufficient motivation.
22. The Applicant denied refusing to obey Maboa’s instruction to issue the LSEN numbers due an intervening long weekend which created the impression that she had ignored his instruction.
23. In respect of Allegation 2 the Applicant referred to paragraph 3.1.2 of the Subsidized Motor Transport Handbook, Scheme B regarding private and official trips (Bundle A2, page 53) and argued that when she did official trips from her place of residence to another place she did so via the District office to sign in. The reason for doing so is that should anything happen to her without having signed in the trip would not be deemed official. Thus the trips from home to work are deemed as official trips because she was required to work at a place other than her normal place of residence and thus the whole round trip was regarded as an official trip.
24. The Applicant denied that she took the amended claim form direct to the transport office and testified that she gave the corrected form to an intern to take it there.
25. The Applicant denied that she had the intention to act dishonestly by completing the claim form, later amending it and re-submitting it direct to the Transport office with the assistance of an intern.
26. The Applicant submitted that mistakes do happen in the course of duty and these should be corrected collegially in order to maintain healthy workplace and professional relationships.
27. During the course of cross-examination of Maboa, the Applicant did not dispute previously receiving a final written warning for similar misconduct and argued that she had not been correctly found guilty at the time and that the previous misconduct should not be taken into account in assessing the appropriate sanction in this case. At the time the Applicant conceded that she had not referred an unfair labour practice to the Council concerning the imposition of the said final written warning. The Applicant made no reference to the final written warning in her written closing arguments.
28. The Applicant asked the Panelist to consider her total of 32 years’ service to the Respondent in deciding the matter and asked to be retrospectively reinstated.
ANALYSIS OF EVIDENCE AND ARGUMENT
29. The onus rests on the Respondent to prove the various allegations of misconduct against the Applicant on a balance of probabilities.
30. I was impressed with the evidence of all the Respondent witnesses in particular Maboa and Scholtz.
31. It is evident from the facts that the Applicant did not obey Maboa’s exhortation to issue the LSEN numbers as a matter of urgency or at all. This is simply evidenced by the fact that Maboa was obliged to call on the services of another psychologist (Mtshali) to issue the LSEN numbers and it is common cause that he did so on the available information placed before him i.t.o the more recent SIS policy which had been in force since 2016. I find that there was no need to make use of form GDE 38/4 and that the Applicant had been issued with sufficient data in terms the SIS system to make a decision on the issue of LSEN numbers.
32. I find that the Applicant prejudiced the administration and efficiency of the Respondent by refusing to follow Maboa’s reasonable instruction for her to issue the LSEN numbers forthwith thus unreasonably delaying their issue. The Applicant’s allegation that she needed to follow professional ethics in making decisions has no applicability to the task that she was faced with and appears to a smokescreen to justify her insolent and intransigent inaction.
33. In respect of Allegation 2 the Applicant claimed for private travel from home to the District office in contravention of paragraphs 3.2.4 and 3.2.5 of the relevant Department of Transport travel policy. When confronted she sought to rely upon paragraph 3.1.2 of the same policy which reads as follows:
When an official is required to work at a place other than his/her normal place of duty and travels directly from his/her normal place of duty and travels directly to such other place it will be deemed to be an official trip, provided that that the distance deemed as official, shall be limited to the distance which it would have been, had the official travelled to such other place from his/her normal place of duty. The lesser distance of the official’s normal place of residence or his/her normal place of work to the other place will be deemed as official.
34. It clear that this subsection does not regard travel from an official’s private residence to their normal place of duty as official travel. This is specifically precluded by paragraphs 3.2.4 and 3.2.5 referred to above. It is intended to deal with situations where the employee travels to other places on official duty and makes it clear that the official travel will be from the employee’s normal place of duty unless the distance between the employee’s home to the other place is less than the distance from the office to the other place of official business.
35. It was intended to avoid the exact situation which the Applicant was guilty of and that was in some instances where she travelled officially elsewhere she would first go to the District office to sign in and then claim that as part of the official travel. This was clearly not permitted by clause 3.1.2. Clause 3.1.2 always regarded the starting point for official travel from the District office unless travel from the Applicant’s home to the outside official venue would be less than travelling from the District office to the outside official venue.
36. The Applicant conceded that the first September claim was flawed and made changes when Maboa pointed this out to her. The Applicant slyly did not make all the changes that were required and submitted the claim direct to the transport office. Whether the claim was submitted in person or through an intern makes no difference. The net result was that she bypassed her supervisor Maboa so that he could not check whether the claim had been filled in correctly the second time. I find that this action is consistent with the Applicant knowing that her actions were wrong and seeking to materially claim in the same illegal way, whilst avoiding the risk of detection.
37. The Applicant’s actions are also consistent with her conduct in Allegation 1. If she decided that her actions were justified it did not matter that others disagreed with her and pointed to the correct path of action. Her intransigence is further proof of her intention to claim for unauthorized private travel whilst hiding behind a plainly wrong interpretation of the Respondent’s travel policy.
38. In a number of instances the Applicant claimed in the correct manner and thus proved that she knew about the rule against claiming private travel from her place of residence to the District office.
39. Finally the Applicant had previously been found guilty of similar misconduct (claiming for private travel) committed in 2016 and was issued with a final written warning. The Applicant did not dispute that she was issued with such a warning but during cross examination of Maboa disputed that it could be taken into account. It is trite that a Panelist can and must consider previous misconduct in assessing an appropriate sanction. This is balanced against the Applicant’s alleged 32 years’ service with the Respondent.
40. Dishonesty destroys the trust relationship even if it is committed by an employee that has many years’ service with the employer, such as the Applicant. The Applicant had previously been issued with a final warning for similar conduct involving an element of dishonesty. I accordingly find that dismissal is the appropriate sanction in this matter.
AWARD
The dismissal of the Applicant, L. Mothamaha was fair. The Applicant is not entitled to any relief.
ELRC 302 -20 /21 NW
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