ELRC762-20/21LP
Award Date:
16 August 2021
Text
Commissioner: George Georghiades
Case No.: ELRC762-20/21LP
Date of Award: 16 August 2021
In the ARBITRATION between:
CHUMA, ELIAS HLENGANI
(Union / Applicant)
and
DEPARTMENT OF EDUCATION LIMPOPO
(Respondent)
Union/Applicant’s representative: Mr. Mbhambhali (Patson) Maswanganyi
Union/Applicant’s address: P O Box 1577 Giyane 0826
Telephone: 082 816 8860
Mobile: 082 077 3448 / 076 944 8999
Telefax: N/A
Email: hlenganichuma@gmail.com / advmaswangwanyi@gmail.com
Respondent’s representative: Mr. Eric N Nyathela
Respondent’s address: Department of Education of Limpopo
Private Bag X9489
Corner 113 Biccard & 24 Excelsior Streets
Polokwane, 0700
Telephone: 015 – 290 7600
Facsimile: 015 – 297 6920
Email: NyathelaNE@edu.limpopo.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing between Chuma, Elias Hlengani and the Department of Education of Limpopo was held under the auspices of the Education Labour Relation Council (“ELRC”), virtually via Zoom Meetings. The matter was set down for arbitration to be held on 31 May 2021 in terms of section 186(2)(b) of the Labour Relations Act 66 of 1996 (“LRA’’).
2. The proceedings were held over three days, commencing on 31 May 2021, and were concluded on 06 August 2021. The proceedings were conducted in English and were manually and digitally recorded.
3. The applicant was represented by Mr. Patson Maswangwanyi, an attorney from MbhaMbhali Maswangwanyi Attorneys, while the respondent was represented by Mr. Eric N Nyathela, Deputy Director, Labour Relations at the Department of Education of Limpopo.
4. Subsequent to a ruling issued to the parties on 31 May 2021, where the parties were ordered to hold a pre-arbitration meeting and exchange their bundles of documents, the parties submitted a common bundle of documents, which was used at the arbitration hearing.
PRELIMINARY ISSUES
5. The applicant’s attorney raised a preliminary issue, insisting that the voice recordings of the disciplinary hearing held in 2016, where the dispute arose, be provided by the respondent. The respondent submitted that the documented outcome of the hearing, the judgment, and the investigation report upon which the disciplinary hearing was based, was included in the bundle.
6. The panellist ruled that the arbitration was a process de novo, where the applicant, who had referred the dispute to the council, was expected to prove its case and in doing so, could not rely on a voice transcript where the parties thereto, unless called to corroborate the recordings thereof, could prove the authenticity thereof.
7. As the documented outcome, judgement report and investigation report of the disciplinary hearing were contained in the common bundle, the panellist ruled that these sufficiently served as the records of the disciplinary hearing and that if the applicant wished to rebut or dispute any of the contents thereof, it could do so at these proceedings.
8. The respondent’s only witness at the hearing in 2016, was expected to testify at these proceedings and the panellist ruled that the council’s mandate and the purpose of arbitration proceedings were to expedite labour dispute resolution.
9. The panellist ruled that applicant’s request for the provision of voice recordings used at the hearings was rejected.
ISSUES TO BE DECIDED
10. The dispute was referred to the ELRC by the applicant as an Unfair Labour Practice carried out by the respondent, in respect of section 186(2)(b) of the LRA.
11. I was required to determine whether the respondent acted unfairly in terms of the decision to charge the applicant, and the sanction imposed on the applicant at the applicant’s disciplinary hearing, where he was issued a final written warning in respect of the transgressions for which he was charged and where a fine of R15 000.00 was imposed.
BACKGROUND TO THE DISPUTE
12. The applicant is an education specialist, employed by the Limpopo Province Department of Education, stationed at Hlanganani North Circuit, in the Vhembe District.
13. On 05 February 2018, the applicant attended a disciplinary hearing, where he was charged with three counts of misconduct, relating to (1) his failure to obey a lawful instruction, (2) contravening of section 18(1) of the Employment of Educators Act in that he unjustifiably prejudiced the administration, discipline, and efficiency of the department and (3), contravening of section 18(1)(l) of the Employment of Educators Act in that he failed to set a question paper for Xitsonga.
14. The applicant was found guilty of two of the three charges and the sanction imposed upon him, was a fine of R 15 000.00 and a final warning. He appealed against the findings of the chairperson, disputing that the disciplinary hearing was unfair and that the charges levelled against him were unclear. This appeal was unsuccessful and as a result, the applicant referred a dispute to the ELRC.
15. The applicant referred the matter as a dispute in respect of s186(2)(b), relating to unfair suspension or any other unfair disciplinary action, short of dismissal.
16. The respondent disputed this, submitting that the charges levelled against the applicant were substantiated and were both procedurally and substantively fair.
17. As the matter referred to the ELRC by the applicant relates to section s186(2)(b) of the LRA, concerning unfair suspension or any other unfair disciplinary action, short of dismissal, the onus of proof rests upon the applicant for this claim to succeed.
18. To prove their respective cases, the applicant’s representative led documented evidence and called upon the applicant to testify in order his case, while the respondent led evidence by relying on documented evidence and calling two witnesses to testify at the hearing.
19. Upon the conclusion of their submissions, both parties were requested to address me in respect of their closing arguments. Both parties did so in writing, and I have considered these in my award below.
SURVEY OF SUBMISSIONS AND ARGUMENTS
THE APPLICANT`S CASE:
The applicant, Mr. Hlengani Elias Chuma, testified under oath that:
20. The first charge levelled against him related to the contravention of section 18(1)(l) of the Employment of Educators Act in that he failed to carry out a lawful instruction, without just or reasonable cause. The charge contained four (4) counts. He was found not guilty of the fourth count of charge 1.
21. The first count suggested that during or around 2016 or at any period incidental thereto, at or near Hlanganani North Circuit, he refused to submit a monthly report for August, the second count being that during or around 2016 or at any period incidental thereto, at or near Hlanganani North Circuit, he refused to submit a monthly plan for September, and the third count being that during or around 2016 or at any period incidental thereto, at or near Hlanganani North Circuit, he refused to complete contract forms for PMDS evaluation.
22. The charges were unclear and vague. The respondent failed to prove that he had failed to carry out these tasks. The nature of the monthly report referred to in the first and second counts were not clearly specified.
23. Insofar as the third count of charge 1, he did not refuse to complete the contract forms. He did complete the forms but did verify these as he did not have the means to verify these evaluations. He did not have the resources to carry out the valuation verifications. He conceded that it was compulsory for him to have completed contract forms.
24. He was a field worker and the respondent failed to provide the tools of the trade, being transport or a vehicle, in order for him to carry out his duties. He found it very challenging to carry out his duties due to a lack of transport.
25. He did complete the contract forms for PMDS evaluation, but his line manager, Mr KG Mathivha, refused to accept these submissions, despite an attempt being made to submit the evaluations in person to him. Although he did submit a monthly report for August and a monthly plan for September, he had no record of his submissions to Mr. Mathivha and could not remember the dates of the submission of the monthly report and monthly plan.
26. All other employees who were employed in the same position wherein which he was employed, had been provided with a vehicle. By law, the respondent was required to provide him with a vehicle and a cell phone, which it failed to do.
27. He was unaware that other Curriculum Advisors employed at the Circuit office who did not have their own vehicles made use of subsidy vehicles. He was aware that they visited schools to carry out their work but was not aware of how this was done insofar as their means of transport. He did not have his own personal vehicle. He felt that he could not have asked his Circuit Manager whether it was possible for him to travel to schools with the other Curriculum Advisors.
28. He applied for a subsidy vehicle in 2015 and his application was approved. Although his application was approved, to date, no vehicle had been provided to him. There was no evidence of his application in the evidence bundle to prove that he had applied for a subsidised vehicle.
29. The second charge for which he was found guilty, related to the contravention of section 18(1)(f) of the Employment of Educators Act in that he unjustifiably prejudiced the administration, discipline, and efficiency of the department. Although the charge contained two (2) counts, he was only found guilty of the first count. Count 1 related to his alleged failure to sign the circuit’s attendance registers.
30. Although the charges at the arbitration proceedings indicated that he was charged for failing to sign the circuit’s attendance register, this charge was tampered with and amended by hand. At the internal disciplinary hearing on 05 February 2018, he was charged with, and required to answer to his failure for signing the school’s attendance register. Based on the ambiguity of this charge, he could not be expected to answer properly to this charge.
31. Count 1 of charge 2 was very broad and ambiguous, failing to specify which schools the respondent was referring to. Furthermore, as he did not have a vehicle at his disposal, he was unable to attend any schools, so doing, not being in a position to sign any attendance registers.
32. Under cross-examination, he conceded that the attendance registered referred to, were those of the Circuit and not relating to any schools. He was employed by the Circuit office and not seconded to any school as a permanent place of work. He only signed the registers on his arrival at work for two days. On the two days for which he signed in, he did not sign out when he left the workplace.
33. The reason for his failure to sign the attendance registers was due to the registers not being accessible to him. He tried to raise the issue of the accessibility of the registers with the Circuit Manager, but he was brushed aside when he raised this.
34. The third charge for which he was charged related to the contravention of the provisions of section 18(1)(l) of the Employment of Educators Act, in that he failed to set a question paper for Xitsonga. He was found not guilty of this charge.
35. He was charged by the Superintendent General of the Department of Education, Limpopo, Ms. N B Mutheiwana. Despite not being aware of or having any knowledge of the charges, she was the initiator of the respondent. She was not called to testify at the disciplinary hearing. She formulated the charges against him in order to target him.
36. At the disciplinary hearing, a certain Ms. Denga represented the respondent. He did not know Ms. Denga. Mr. KG Mathivha was the only witness that testified on behalf of the respondent at the disciplinary hearing. The disciplinary hearing was conducted in a proper manner, in line with the requirements of law.
37. His direct supervisor was Mr. KG Mathivha and not the Superintendent General (SG), Ms. N B Mutheiwana. Mr. Mathivha was the person who should have charged him and not the SG.
38. He was not afforded an opportunity to state his case or cross-examine the witness of the respondent, at the disciplinary hearing, with the chairperson continually interjecting when he was testifying or cross-questioning the respondent’s witness.
39. At the disciplinary inquiry, he was represented by a trade union official from NAPTOSA. His representative failed to raise any objections to the procedural unfairness of the disciplinary inquiry.
40. A letter confirming his failure to submit the monthly report and plan was received from the District Director, Mr. R Mphephu, further requesting that he submit the monthly report for August 2016 and the monthly plan for September 2016. This was unprocedural and unfair, as his direct supervisor was Mr. KG Mathivha, who was the official authorised to have sent him this letter. He felt offended and insulted by the letter.
41. He did respond in writing to the District Manager in respect of the letter received above, but he did not make any reference to the monthly report for August 2016 and the monthly plan for September 2016 therein.
42. The collective agreement 4 of 2017 was not applicable to him and did not bind him in any way. Although he served in a position that was listed therein, that being a Senior Curriculum Advisor, the post for which he was appointed, being an Education Specialist, was not contained in this document. Other college lecturers who were absorbed as Senior Education Specialists, were bound by the collective agreement.
43. If he was to be charged for misconduct, this should have been done by the Director General (DG) upon having been provided all the information by his supervisor, KG Mathivha – this was not done.
44. Mr. KG Mathivha reports to the District Director, to whom he submitted a letter without his knowledge or consent.
45. The time/attendance registers which he was expected to sign daily, were kept in the office of the Circuit Manager. There were many other office-based educators (curriculum advisors) who did not sign the attendance registers. No disciplinary action was taken against them by the respondent.
46. The reports which were the cause of charges that were levelled against him, were submitted to the Circuit Manager, Mr. KG Mathivha. Mr. Mathivha failed to sign any acknowledgement in respect of the submitted reports. Although he conceded that the onus lay with him to prove that the reports were submitted, he did not know why the Circuit Manager refused to officially accept the reports.
47. The relationship between him and his District Manager, Mr. KG Mathivha, was poor. This was the reason why Mr. Mathivha made unfavourable comments about him and the reason for lying about not having received the reports from him. Mr. Mathivha had reasons for hating him, but he did not know what these reasons were.
48. Under cross-examination, the applicant conceded that in terms of section 1 of the Employment of Educators Act, the Superintendent General was authorised to level charges against him.
49. Under further cross-examination, upon having been referred to a letter addressed to him by the Circuit Manager, the applicant conceded that although he had been engaged by Mr. Mathivha, in respect of his failure to submit a monthly report and a monthly plan, he was unable to do so due to a lack of transport.
50. He submitted the PMDS contract forms and reviews for the 2015/16 year but admitted that he did not do so for 2016/17. This was due to having been advised by the Circuit Manager, Mr. KG Mathivha, that he would not be paid for the reports he had previously submitted.
The applicant closed its case.
THE RESPONDENT`S CASE:
The respondent’s first witness, Mr. Kanakana George Mathivha, testified under oath that:
51. Prior to his retirement, he was employed by the respondent as the Circuit Manager for the Hlanganani North Circuit. He worked with Mr. H E Chuma from August 2013, where he acted as his supervisor as a Curriculum Advisor. Mr. Chuma reported directly to him.
52. Mr. Chuma failed to submit a monthly report for August 2016 and a monthly plan for September 2016. No proof existed of the submission thereof. This was reported to the District Office. The other Curriculum Advisors in the Circuit submitted their reports and plans. A monthly plan was a document used wherein the planned support of schools for a particular month was recorded. A monthly report was a document wherein the support of schools that was conducted for a particular month, was recorded.
53. The process of receiving documents entailed the submission of an original document and a copy. The person who received the document would acknowledge the submission thereof by signing for such. The original signed copy would remain with the party to whom it was submitted, while the signed copy of the submitted document would remain with the person who was submitting these documents/reports. If no proof of any submission of documents existed, whether original or copy, it would be reasonably assumed that the document had not been submitted.
54. He engaged Mr. Cuma in this regard. Mr. Chuma’s attitude was very negative. He claimed to have certain issues with the District Office that felt needed to be addressed, before being prepared to deal with the issues at Circuit Office level.
55. His relationship with Mr. Chuma was not good as he failed to carry out his duties for which he was employed in a proper manner. Mr. Chuma’s duties included the provision of support to Xitsonga educators and learners. These educators and learners were not provided the support that they deserved.
56. Mr. Chuma used the excuse that he did not have a vehicle in order to carry out his duties. Although he did own a 1400 Nissan bakkie, he refused to use this for work purposes. Mr. Chuma refused to apply for a Scheme-B subsidised vehicle for use to carry out his required duties.
57. The Circuit office had a large boardroom which was regularly used by the Circuit Office as a training facility. In many instances, educators were invited to be capacitated and supported. In the absence of a vehicle or transport, which was the alleged reason why Mr. Chuma was unable to visit schools in order to provide support to educators, he failed to invite any educators to the Circuit Office in order to capacitate them and provide them with support.
58. There were several GET Curriculum Advisors who had subsidised vehicles or used pool vehicles to visit schools in the Circuit. These Curriculum Advisors could have assisted Mr. Chuma in supporting schools in the Circuit if he so wished.
59. He was not aware of any application by Mr. Chuma for a subsidy vehicle. If he had made such an application, as the Circuit manager and direct supervisor of Mr. Chuma, he would have been required to support such an application. No such application was ever submitted to him for consideration and approval. The other Curriculum advisors in the Circuit had subsidy vehicles, or they used their own vehicles under the subsidy scheme-B.
60. Several Curriculum Advisors failed to sign the attendance registers as a result of them leaving their homes directly, for schools within the Circuit, carrying out their duties, or attending workshops away from the Circuit Office. He was always informed of the whereabouts of those Curriculum Advisors who had not completed and signed the attendance registers on particular days.
61. Mr. Chuma claimed that he could not conduct school visits due to the lack of transport or a subsidy vehicle. If this was the case, it meant that Mr. Chuma should have been at the Circuit Office, where it would have been expected of him to complete and sign the attendance registers. Mr. Chuma failed to do so.
62. Mr. Chuma failed to complete and submit PMDS contract forms. This was reported to the District Office. Curriculum Advisors were provided with a schedule of dates when they were required to make submissions. Mr. Chuma failed to do so.
63. Mr. Chuma was provided with an extension in order to allow him to make his submissions, to which he also failed to comply. The failure by Mr. Chuma to submit required documents, despite having been provided an extension to do so, without any proper reason, was considered as a refusal to carry out a lawful instruction. He addressed with personally with Mr. Chuma, who still failed to submit the required reports. This behaviour was later reported to the District Office.
64. In respect of the Circuit Office attendance registers, these were accessible at all times during office hours. The registers were kept in the office of his personal assistant, which adjoined his office. This meant that even when he was not in his office or at the Circuit Office, the registers were accessible to all staff members. At no time whatsoever, did Mr. Chuma raise the concern relating to the accessibility of the attendance registers with him.
65. Mr. Chuma would often report for duty at the Circuit Office, sign the attendance register and then leave the office without signing out or advising him of his intended whereabouts. It was required for all employees to sign out when leaving the Circuit Office or at the end of the day. Mr. Chuma failed to comply.
66. He was not empowered or authorised to discipline officials who were under his supervision and responsibility. If such matters arose, these were referred to the District Office, which was responsible for taking the appropriate disciplinary action.
The respondent’s second witness, Mr. Richard Mphephu, testified under oath that:
67. Prior to his retirement, he was employed by the respondent at the District Office as the senior and intermediate phase Curriculum Coordinator. During his term of office, he worked with Mr. Chuma, who was a Curriculum Advisor at the Hlanganani North Circuit.
68. A monthly plan was a workplace tool that was used to indicate what activities were intended to be carried out for that particular month, in order to provide support to schools and to address any possible challenges or problems, that were anticipated.
69. He issued two letters to Mr. Chuma in respect of his failure to have submitted a monthly report for August 2016 and a monthly plan for September 2016. In the first letter, dated 16 September 2016, Mr. Chuma was requested to submit the monthly report and plan for August 2016 and September 2016 respectively.
70. In the second letter issued to Mr. Chuma on 10 October 2016, he confirmed that no such report and plan had been submitted as previously requested and further requested Mr. Chuma to provide a response to indicate why he should not recommend that he be transferred to a school where he would serve as a HOD for languages. On 11 November 2016, a report on the conduct of Mr. Chuma was submitted to the District Director.
71. Mr. Chuma’s duties included the visiting and supporting of educators and learners at schools. In order to have been in a position to carry out the duties for which he was employed, Mr. Chuma was expected to have applied for a subsidy vehicle, or alternatively, request the use of a pool car to carry out his duties. He could have also used his own vehicle under the relevant scheme or engaged and arranged with other Curriculum Advisors in order to travel with them, to fulfil his duties. He failed to do so.
The respondent closed its case.
ANALYSIS OF EVIDENCE AND ARGUMENTS
72. I considered all relevant evidence and arguments raised by the parties and in doing so, I have only referred to evidence and arguments that I regard necessary to substantiate my findings and dispose of the dispute.
73. The applicant based his case on his inability to have carried out and fulfilled his duties, due to the failure by the respondent to have provided him with the necessary support that was required to do so. This support referred to the provision of a vehicle or transport to and from schools within the Hlanganani North Circuit, and the provision of a cell phone.
74. His failure to carry out these duties and requirements were not a refusal to do so, but rather as a result of the lack of resources, of which the respondent was aware, yet failing to assist him.
75. Insofar as the applicant’s inference that the charges were broad, unclear, and vague, I find that as Education Specialist and Curriculum Advisor employed by the respondent, the applicant was expected to understand what was being requested of him, as this formed part of his job description. His core function was to provide support to schools (educators and learners) in the district.
76. The monthly reports and monthly plans were tools used by all Curriculum Advisors in the carrying out of their day-to-day duties. The applicant never led any testimony to suggest that he was unable to compile the monthly report for August and the monthly plan for September, as a result of his lack of knowledge thereof.
77. He conceded under cross-examination that the submission of these reports was compulsory and not of a voluntary nature. The applicant’s suggestion that the charges levelled against him failed to contain the nature of the reports is highly improbable, as he was fully aware of what the reports were expected to contain.
78. The applicant’s reliance of the charges failing to specify the exact time frame referred to by the respondent, for which he was expected to submit a monthly report and plan, cannot be accepted and is rejected. The charges specifically refer to “During 2016 or at any period incidental thereto…” This clearly stipulates the time frame for which the applicant’s failure to submit a monthly report and plan.
79. In letters addressed to the applicant by Mr. Mathivha and Mr. Mphephu, specific reference to dates of the required monthly report and plan are made, these being for August 2016 and September 2016, respectively.
80. In analysing and dealing with the procedural fairness of the dismissal, where the applicant claimed that as a result of the charges that were levelled against him being ambiguous, vague, broad and not levelled within a specific period, I am guided by the Labour Appeal Court in EOH Abantu (Pty) Ltd v CCMA & Others (JA4/18) [2019] ZALAC 57, where the Court held that charges must be formulated in such a manner that the employee may be able to answer them and that he approach adopted by courts and arbitrators must not be formalistic or technical. This is because lay persons often craft the charges too narrowly or incorrectly.
81. Similarly, in Malapalane v Glencore Operations South Africa (Pty) Ltd (Goedgevonden Colliery) and others [2018] ZALAC 22, the Court confirmed the principle that although disciplinary charges do not need to be strictly framed in accordance with the wording of the relevant acts of misconduct as listed in the employer’s disciplinary codes, it was held that it is sufficient that the misconduct alleged in the charge sheet, was set out with sufficient clarity so as to be understood by the employee.
82. In Avril Elizabeth Home for the Mentally Handicapped v CCMA and Others (2006) 27 ILJ 1644 (LC), where the minimum requirement for procedural fairness was considered, it was held that the employer was merely required to conduct an investigation, give the employee or his representative an opportunity to respond to allegations after a reasonable period and thereafter, to take a decision and give the employee notice thereof.
83. The applicant testified that he was not afforded an opportunity to state his case or cross-examine the respondent’s witness at the internal disciplinary inquiry. He further claimed that it was not procedurally fair for him to have been charged by the Superintendent General, as he did not know her and that the only person who could legally charge him, was the Circuit Manager, Mr. K G Mathivha. The respondent denied this claiming that the disciplinary process was both procedurally and substantively fair.
84. By his own admission, the applicant testified that he was represented at the disciplinary inquiry by a trade union representative of NAPTOSA, but that his representative did not object to the procedural unfairness of the disciplinary inquiry. He confirmed that the disciplinary hearing was conducted “in line with the law”.
85. Under cross examination, the applicant conceded that as he was an employer of the respondent and in line with section 1 of the Employment of Educators Act, he agreed that the Superintendent General was authorised to charge him in respect of disciplinary action.
86. His claim that the District Manager, K G Mathivha, was the only person authorised to bring disciplinary charges against him, was contradicted by his own testimony in that he claimed that the Director General was the only person authorised to institute disciplinary action against him.
87. Based on these submissions, I am persuaded that the applicant’s claim that the failure of his representative to object to the procedural fairness of the disciplinary inquiry, cannot be equated to the failure of the chairperson denying him an opportunity to have stated his case and cross-examine the respondent’s witness.
88. Insofar as the applicant’s claim that the reason for his inability to have carried out his duties (verification of evaluations) due to a lack of transport and/or a vehicle, he testified that he had applied for a subsidy vehicle in 2015 and that this application was approved, but to date, no vehicle was provided. If the applicant’s version was to be accepted, it would have been reasonably expected of him to have followed up with respondent insofar as its failure to have provided a vehicle. No evidence was led in this regard.
89. The applicant could not present any supporting documents to prove that he had applied for a vehicle in 2015, as per his testimony at these arbitration proceedings. Considering that this was the main reason for the applicant’s failure to fulfil his duties, it should be reasonably expected that in order to prove such an allegation, some proof of an application should have been submitted at these proceedings to support his claim. This was not done.
90. Mr. K G Mathivha testified that as the direct supervisor of the applicant and in his capacity as District Manager, he would have been required to consider, approve, and support the applicant’s application in respect of a subsidy vehicle. He submitted that the applicant never made an application in respect of a subsidy vehicle.
91. Mr. Mathivha further testified that the applicant owned a vehicle, being a Nissan 1400 Bakkie. This undisputed testimony was contrary to the testimony of Mr. Chuma, that he did not own a vehicle. Mr. Mathivha submitted that the applicant refused to use his own vehicle for work-related duties under scheme-B and also refused to apply for a subsidy vehicle.
92. Both Mr. Mathivha and Mr. Mphephu testified that despite the applicant’s version that he did not own a vehicle, that he had not received the vehicle for which he had successfully applied and that he failed to request the use of a pool vehicle, he could have travelled to schools with other Curriculum Advisors from the same Circuit, to support schools.
93. Despite his failure to have considered this, the applicant testified that he was unaware that such a request would have been approved or accepted by his supervisor, Mr. Mathivha. The absence of such a consideration by the applicant, especially since his core function was to visit schools in the Circuit and provide support to them, appears on a balance of probabilities, to be an intentional omission by the applicant, to avoid fulfilling his duties.
94. Insofar as the charge for failing to sign the Circuit Office attendance, the applicant submitted that this charge had been tampered with and such, should not be considered at these proceedings. The applicant was represented by a seasoned attorney who attended the pre-arbitration meeting as per my ruling to the parties on 31 May 2021. This issue was not contained in the parties’ common bundle as an issue in dispute. On the contrary, as per the pre-arbitration minutes signed by both parties, the parties agreed that the authenticity of the documents contained in the common bundle was not in dispute.
95. Despite my view above (para 93), if indeed the applicant was under the impression at the disciplinary hearing on 05 February 2018, that the attendance register referred to a school and not the Circuit Office, he testified on this and was afforded an opportunity at the arbitration proceedings, to provide his understanding insofar as the alleged ambiguity.
96. The applicant was pertinently questioned about his understanding of the nature of the attendance register, confirming that he did not work at any school or at the District Office, but at the Circuit Office. He testified that the attendance registers were kept in the office of the Circuit Manager and referred to the attendance registers during his testimony and cross-questioning.
97. The attendance registers referred to and contained in the evidence bundle are headed as “Hlanganani North Circuit Time Register”, suggesting that the applicant was fully aware of the nature of these attendance registers. I am persuaded to believe that the applicant has attempted to justify his failure to have signed the attendance registers, by claiming that he was unsure of whether these related to a specific school, or the Circuit Office.
98. His claim that the charges were tampered with, were nullified by the confirmation of the authenticity of the evidence bundle and the opportunity afforded to the applicant to answer to the clarity of the initial ambiguity claimed.
99. The applicant’s further testimony that he was the only Curriculum Advisor who was disciplined for failing to sign the attendance registers, despite others having done so too, was successfully rebutted by Mr. K G Mathivha. The District Manager testified that he was aware of the whereabouts of those who had not signed the register, as they were either conducting and/or attending workshops or visiting schools.
100. This was further cemented by Mr. Mathivha’s reasoning during his testimony that if the applicant’s claim was that he was unable to have visited schools due to a lack of transport, it was reasonably expected that the applicant was expected to have been at the Circuit Office, being his place of work.
101 . Having considered the parties’ submissions and arguments, and being guided by the judgements of the honourable courts in the case law cited herein, I find that on a balance of probability, that the decision to charge the applicant and the subsequent actions of the respondent were both procedurally and substantively justifiable and fair. As a result, the applicant’s claim to dismiss the charges, findings and sanction by the respondent, are hereby dismissed.
Award
1. The applicant, Mr. H E Chuma, has failed to successfully discharge his onus in this matter to prove the respondent’s unfair conduct in respect of its charges, findings, and sanction, relating to the applicant.
2. As a result of the aforesaid, the applicant’s claim is dismissed, and the ELRC is ordered to close its file in this matter.
George Georghiades
ELRC Dispute Resolution Panellist
Case No.: ELRC762-20/21LP
Date of Award: 16 August 2021
In the ARBITRATION between:
CHUMA, ELIAS HLENGANI
(Union / Applicant)
and
DEPARTMENT OF EDUCATION LIMPOPO
(Respondent)
Union/Applicant’s representative: Mr. Mbhambhali (Patson) Maswanganyi
Union/Applicant’s address: P O Box 1577 Giyane 0826
Telephone: 082 816 8860
Mobile: 082 077 3448 / 076 944 8999
Telefax: N/A
Email: hlenganichuma@gmail.com / advmaswangwanyi@gmail.com
Respondent’s representative: Mr. Eric N Nyathela
Respondent’s address: Department of Education of Limpopo
Private Bag X9489
Corner 113 Biccard & 24 Excelsior Streets
Polokwane, 0700
Telephone: 015 – 290 7600
Facsimile: 015 – 297 6920
Email: NyathelaNE@edu.limpopo.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing between Chuma, Elias Hlengani and the Department of Education of Limpopo was held under the auspices of the Education Labour Relation Council (“ELRC”), virtually via Zoom Meetings. The matter was set down for arbitration to be held on 31 May 2021 in terms of section 186(2)(b) of the Labour Relations Act 66 of 1996 (“LRA’’).
2. The proceedings were held over three days, commencing on 31 May 2021, and were concluded on 06 August 2021. The proceedings were conducted in English and were manually and digitally recorded.
3. The applicant was represented by Mr. Patson Maswangwanyi, an attorney from MbhaMbhali Maswangwanyi Attorneys, while the respondent was represented by Mr. Eric N Nyathela, Deputy Director, Labour Relations at the Department of Education of Limpopo.
4. Subsequent to a ruling issued to the parties on 31 May 2021, where the parties were ordered to hold a pre-arbitration meeting and exchange their bundles of documents, the parties submitted a common bundle of documents, which was used at the arbitration hearing.
PRELIMINARY ISSUES
5. The applicant’s attorney raised a preliminary issue, insisting that the voice recordings of the disciplinary hearing held in 2016, where the dispute arose, be provided by the respondent. The respondent submitted that the documented outcome of the hearing, the judgment, and the investigation report upon which the disciplinary hearing was based, was included in the bundle.
6. The panellist ruled that the arbitration was a process de novo, where the applicant, who had referred the dispute to the council, was expected to prove its case and in doing so, could not rely on a voice transcript where the parties thereto, unless called to corroborate the recordings thereof, could prove the authenticity thereof.
7. As the documented outcome, judgement report and investigation report of the disciplinary hearing were contained in the common bundle, the panellist ruled that these sufficiently served as the records of the disciplinary hearing and that if the applicant wished to rebut or dispute any of the contents thereof, it could do so at these proceedings.
8. The respondent’s only witness at the hearing in 2016, was expected to testify at these proceedings and the panellist ruled that the council’s mandate and the purpose of arbitration proceedings were to expedite labour dispute resolution.
9. The panellist ruled that applicant’s request for the provision of voice recordings used at the hearings was rejected.
ISSUES TO BE DECIDED
10. The dispute was referred to the ELRC by the applicant as an Unfair Labour Practice carried out by the respondent, in respect of section 186(2)(b) of the LRA.
11. I was required to determine whether the respondent acted unfairly in terms of the decision to charge the applicant, and the sanction imposed on the applicant at the applicant’s disciplinary hearing, where he was issued a final written warning in respect of the transgressions for which he was charged and where a fine of R15 000.00 was imposed.
BACKGROUND TO THE DISPUTE
12. The applicant is an education specialist, employed by the Limpopo Province Department of Education, stationed at Hlanganani North Circuit, in the Vhembe District.
13. On 05 February 2018, the applicant attended a disciplinary hearing, where he was charged with three counts of misconduct, relating to (1) his failure to obey a lawful instruction, (2) contravening of section 18(1) of the Employment of Educators Act in that he unjustifiably prejudiced the administration, discipline, and efficiency of the department and (3), contravening of section 18(1)(l) of the Employment of Educators Act in that he failed to set a question paper for Xitsonga.
14. The applicant was found guilty of two of the three charges and the sanction imposed upon him, was a fine of R 15 000.00 and a final warning. He appealed against the findings of the chairperson, disputing that the disciplinary hearing was unfair and that the charges levelled against him were unclear. This appeal was unsuccessful and as a result, the applicant referred a dispute to the ELRC.
15. The applicant referred the matter as a dispute in respect of s186(2)(b), relating to unfair suspension or any other unfair disciplinary action, short of dismissal.
16. The respondent disputed this, submitting that the charges levelled against the applicant were substantiated and were both procedurally and substantively fair.
17. As the matter referred to the ELRC by the applicant relates to section s186(2)(b) of the LRA, concerning unfair suspension or any other unfair disciplinary action, short of dismissal, the onus of proof rests upon the applicant for this claim to succeed.
18. To prove their respective cases, the applicant’s representative led documented evidence and called upon the applicant to testify in order his case, while the respondent led evidence by relying on documented evidence and calling two witnesses to testify at the hearing.
19. Upon the conclusion of their submissions, both parties were requested to address me in respect of their closing arguments. Both parties did so in writing, and I have considered these in my award below.
SURVEY OF SUBMISSIONS AND ARGUMENTS
THE APPLICANT`S CASE:
The applicant, Mr. Hlengani Elias Chuma, testified under oath that:
20. The first charge levelled against him related to the contravention of section 18(1)(l) of the Employment of Educators Act in that he failed to carry out a lawful instruction, without just or reasonable cause. The charge contained four (4) counts. He was found not guilty of the fourth count of charge 1.
21. The first count suggested that during or around 2016 or at any period incidental thereto, at or near Hlanganani North Circuit, he refused to submit a monthly report for August, the second count being that during or around 2016 or at any period incidental thereto, at or near Hlanganani North Circuit, he refused to submit a monthly plan for September, and the third count being that during or around 2016 or at any period incidental thereto, at or near Hlanganani North Circuit, he refused to complete contract forms for PMDS evaluation.
22. The charges were unclear and vague. The respondent failed to prove that he had failed to carry out these tasks. The nature of the monthly report referred to in the first and second counts were not clearly specified.
23. Insofar as the third count of charge 1, he did not refuse to complete the contract forms. He did complete the forms but did verify these as he did not have the means to verify these evaluations. He did not have the resources to carry out the valuation verifications. He conceded that it was compulsory for him to have completed contract forms.
24. He was a field worker and the respondent failed to provide the tools of the trade, being transport or a vehicle, in order for him to carry out his duties. He found it very challenging to carry out his duties due to a lack of transport.
25. He did complete the contract forms for PMDS evaluation, but his line manager, Mr KG Mathivha, refused to accept these submissions, despite an attempt being made to submit the evaluations in person to him. Although he did submit a monthly report for August and a monthly plan for September, he had no record of his submissions to Mr. Mathivha and could not remember the dates of the submission of the monthly report and monthly plan.
26. All other employees who were employed in the same position wherein which he was employed, had been provided with a vehicle. By law, the respondent was required to provide him with a vehicle and a cell phone, which it failed to do.
27. He was unaware that other Curriculum Advisors employed at the Circuit office who did not have their own vehicles made use of subsidy vehicles. He was aware that they visited schools to carry out their work but was not aware of how this was done insofar as their means of transport. He did not have his own personal vehicle. He felt that he could not have asked his Circuit Manager whether it was possible for him to travel to schools with the other Curriculum Advisors.
28. He applied for a subsidy vehicle in 2015 and his application was approved. Although his application was approved, to date, no vehicle had been provided to him. There was no evidence of his application in the evidence bundle to prove that he had applied for a subsidised vehicle.
29. The second charge for which he was found guilty, related to the contravention of section 18(1)(f) of the Employment of Educators Act in that he unjustifiably prejudiced the administration, discipline, and efficiency of the department. Although the charge contained two (2) counts, he was only found guilty of the first count. Count 1 related to his alleged failure to sign the circuit’s attendance registers.
30. Although the charges at the arbitration proceedings indicated that he was charged for failing to sign the circuit’s attendance register, this charge was tampered with and amended by hand. At the internal disciplinary hearing on 05 February 2018, he was charged with, and required to answer to his failure for signing the school’s attendance register. Based on the ambiguity of this charge, he could not be expected to answer properly to this charge.
31. Count 1 of charge 2 was very broad and ambiguous, failing to specify which schools the respondent was referring to. Furthermore, as he did not have a vehicle at his disposal, he was unable to attend any schools, so doing, not being in a position to sign any attendance registers.
32. Under cross-examination, he conceded that the attendance registered referred to, were those of the Circuit and not relating to any schools. He was employed by the Circuit office and not seconded to any school as a permanent place of work. He only signed the registers on his arrival at work for two days. On the two days for which he signed in, he did not sign out when he left the workplace.
33. The reason for his failure to sign the attendance registers was due to the registers not being accessible to him. He tried to raise the issue of the accessibility of the registers with the Circuit Manager, but he was brushed aside when he raised this.
34. The third charge for which he was charged related to the contravention of the provisions of section 18(1)(l) of the Employment of Educators Act, in that he failed to set a question paper for Xitsonga. He was found not guilty of this charge.
35. He was charged by the Superintendent General of the Department of Education, Limpopo, Ms. N B Mutheiwana. Despite not being aware of or having any knowledge of the charges, she was the initiator of the respondent. She was not called to testify at the disciplinary hearing. She formulated the charges against him in order to target him.
36. At the disciplinary hearing, a certain Ms. Denga represented the respondent. He did not know Ms. Denga. Mr. KG Mathivha was the only witness that testified on behalf of the respondent at the disciplinary hearing. The disciplinary hearing was conducted in a proper manner, in line with the requirements of law.
37. His direct supervisor was Mr. KG Mathivha and not the Superintendent General (SG), Ms. N B Mutheiwana. Mr. Mathivha was the person who should have charged him and not the SG.
38. He was not afforded an opportunity to state his case or cross-examine the witness of the respondent, at the disciplinary hearing, with the chairperson continually interjecting when he was testifying or cross-questioning the respondent’s witness.
39. At the disciplinary inquiry, he was represented by a trade union official from NAPTOSA. His representative failed to raise any objections to the procedural unfairness of the disciplinary inquiry.
40. A letter confirming his failure to submit the monthly report and plan was received from the District Director, Mr. R Mphephu, further requesting that he submit the monthly report for August 2016 and the monthly plan for September 2016. This was unprocedural and unfair, as his direct supervisor was Mr. KG Mathivha, who was the official authorised to have sent him this letter. He felt offended and insulted by the letter.
41. He did respond in writing to the District Manager in respect of the letter received above, but he did not make any reference to the monthly report for August 2016 and the monthly plan for September 2016 therein.
42. The collective agreement 4 of 2017 was not applicable to him and did not bind him in any way. Although he served in a position that was listed therein, that being a Senior Curriculum Advisor, the post for which he was appointed, being an Education Specialist, was not contained in this document. Other college lecturers who were absorbed as Senior Education Specialists, were bound by the collective agreement.
43. If he was to be charged for misconduct, this should have been done by the Director General (DG) upon having been provided all the information by his supervisor, KG Mathivha – this was not done.
44. Mr. KG Mathivha reports to the District Director, to whom he submitted a letter without his knowledge or consent.
45. The time/attendance registers which he was expected to sign daily, were kept in the office of the Circuit Manager. There were many other office-based educators (curriculum advisors) who did not sign the attendance registers. No disciplinary action was taken against them by the respondent.
46. The reports which were the cause of charges that were levelled against him, were submitted to the Circuit Manager, Mr. KG Mathivha. Mr. Mathivha failed to sign any acknowledgement in respect of the submitted reports. Although he conceded that the onus lay with him to prove that the reports were submitted, he did not know why the Circuit Manager refused to officially accept the reports.
47. The relationship between him and his District Manager, Mr. KG Mathivha, was poor. This was the reason why Mr. Mathivha made unfavourable comments about him and the reason for lying about not having received the reports from him. Mr. Mathivha had reasons for hating him, but he did not know what these reasons were.
48. Under cross-examination, the applicant conceded that in terms of section 1 of the Employment of Educators Act, the Superintendent General was authorised to level charges against him.
49. Under further cross-examination, upon having been referred to a letter addressed to him by the Circuit Manager, the applicant conceded that although he had been engaged by Mr. Mathivha, in respect of his failure to submit a monthly report and a monthly plan, he was unable to do so due to a lack of transport.
50. He submitted the PMDS contract forms and reviews for the 2015/16 year but admitted that he did not do so for 2016/17. This was due to having been advised by the Circuit Manager, Mr. KG Mathivha, that he would not be paid for the reports he had previously submitted.
The applicant closed its case.
THE RESPONDENT`S CASE:
The respondent’s first witness, Mr. Kanakana George Mathivha, testified under oath that:
51. Prior to his retirement, he was employed by the respondent as the Circuit Manager for the Hlanganani North Circuit. He worked with Mr. H E Chuma from August 2013, where he acted as his supervisor as a Curriculum Advisor. Mr. Chuma reported directly to him.
52. Mr. Chuma failed to submit a monthly report for August 2016 and a monthly plan for September 2016. No proof existed of the submission thereof. This was reported to the District Office. The other Curriculum Advisors in the Circuit submitted their reports and plans. A monthly plan was a document used wherein the planned support of schools for a particular month was recorded. A monthly report was a document wherein the support of schools that was conducted for a particular month, was recorded.
53. The process of receiving documents entailed the submission of an original document and a copy. The person who received the document would acknowledge the submission thereof by signing for such. The original signed copy would remain with the party to whom it was submitted, while the signed copy of the submitted document would remain with the person who was submitting these documents/reports. If no proof of any submission of documents existed, whether original or copy, it would be reasonably assumed that the document had not been submitted.
54. He engaged Mr. Cuma in this regard. Mr. Chuma’s attitude was very negative. He claimed to have certain issues with the District Office that felt needed to be addressed, before being prepared to deal with the issues at Circuit Office level.
55. His relationship with Mr. Chuma was not good as he failed to carry out his duties for which he was employed in a proper manner. Mr. Chuma’s duties included the provision of support to Xitsonga educators and learners. These educators and learners were not provided the support that they deserved.
56. Mr. Chuma used the excuse that he did not have a vehicle in order to carry out his duties. Although he did own a 1400 Nissan bakkie, he refused to use this for work purposes. Mr. Chuma refused to apply for a Scheme-B subsidised vehicle for use to carry out his required duties.
57. The Circuit office had a large boardroom which was regularly used by the Circuit Office as a training facility. In many instances, educators were invited to be capacitated and supported. In the absence of a vehicle or transport, which was the alleged reason why Mr. Chuma was unable to visit schools in order to provide support to educators, he failed to invite any educators to the Circuit Office in order to capacitate them and provide them with support.
58. There were several GET Curriculum Advisors who had subsidised vehicles or used pool vehicles to visit schools in the Circuit. These Curriculum Advisors could have assisted Mr. Chuma in supporting schools in the Circuit if he so wished.
59. He was not aware of any application by Mr. Chuma for a subsidy vehicle. If he had made such an application, as the Circuit manager and direct supervisor of Mr. Chuma, he would have been required to support such an application. No such application was ever submitted to him for consideration and approval. The other Curriculum advisors in the Circuit had subsidy vehicles, or they used their own vehicles under the subsidy scheme-B.
60. Several Curriculum Advisors failed to sign the attendance registers as a result of them leaving their homes directly, for schools within the Circuit, carrying out their duties, or attending workshops away from the Circuit Office. He was always informed of the whereabouts of those Curriculum Advisors who had not completed and signed the attendance registers on particular days.
61. Mr. Chuma claimed that he could not conduct school visits due to the lack of transport or a subsidy vehicle. If this was the case, it meant that Mr. Chuma should have been at the Circuit Office, where it would have been expected of him to complete and sign the attendance registers. Mr. Chuma failed to do so.
62. Mr. Chuma failed to complete and submit PMDS contract forms. This was reported to the District Office. Curriculum Advisors were provided with a schedule of dates when they were required to make submissions. Mr. Chuma failed to do so.
63. Mr. Chuma was provided with an extension in order to allow him to make his submissions, to which he also failed to comply. The failure by Mr. Chuma to submit required documents, despite having been provided an extension to do so, without any proper reason, was considered as a refusal to carry out a lawful instruction. He addressed with personally with Mr. Chuma, who still failed to submit the required reports. This behaviour was later reported to the District Office.
64. In respect of the Circuit Office attendance registers, these were accessible at all times during office hours. The registers were kept in the office of his personal assistant, which adjoined his office. This meant that even when he was not in his office or at the Circuit Office, the registers were accessible to all staff members. At no time whatsoever, did Mr. Chuma raise the concern relating to the accessibility of the attendance registers with him.
65. Mr. Chuma would often report for duty at the Circuit Office, sign the attendance register and then leave the office without signing out or advising him of his intended whereabouts. It was required for all employees to sign out when leaving the Circuit Office or at the end of the day. Mr. Chuma failed to comply.
66. He was not empowered or authorised to discipline officials who were under his supervision and responsibility. If such matters arose, these were referred to the District Office, which was responsible for taking the appropriate disciplinary action.
The respondent’s second witness, Mr. Richard Mphephu, testified under oath that:
67. Prior to his retirement, he was employed by the respondent at the District Office as the senior and intermediate phase Curriculum Coordinator. During his term of office, he worked with Mr. Chuma, who was a Curriculum Advisor at the Hlanganani North Circuit.
68. A monthly plan was a workplace tool that was used to indicate what activities were intended to be carried out for that particular month, in order to provide support to schools and to address any possible challenges or problems, that were anticipated.
69. He issued two letters to Mr. Chuma in respect of his failure to have submitted a monthly report for August 2016 and a monthly plan for September 2016. In the first letter, dated 16 September 2016, Mr. Chuma was requested to submit the monthly report and plan for August 2016 and September 2016 respectively.
70. In the second letter issued to Mr. Chuma on 10 October 2016, he confirmed that no such report and plan had been submitted as previously requested and further requested Mr. Chuma to provide a response to indicate why he should not recommend that he be transferred to a school where he would serve as a HOD for languages. On 11 November 2016, a report on the conduct of Mr. Chuma was submitted to the District Director.
71. Mr. Chuma’s duties included the visiting and supporting of educators and learners at schools. In order to have been in a position to carry out the duties for which he was employed, Mr. Chuma was expected to have applied for a subsidy vehicle, or alternatively, request the use of a pool car to carry out his duties. He could have also used his own vehicle under the relevant scheme or engaged and arranged with other Curriculum Advisors in order to travel with them, to fulfil his duties. He failed to do so.
The respondent closed its case.
ANALYSIS OF EVIDENCE AND ARGUMENTS
72. I considered all relevant evidence and arguments raised by the parties and in doing so, I have only referred to evidence and arguments that I regard necessary to substantiate my findings and dispose of the dispute.
73. The applicant based his case on his inability to have carried out and fulfilled his duties, due to the failure by the respondent to have provided him with the necessary support that was required to do so. This support referred to the provision of a vehicle or transport to and from schools within the Hlanganani North Circuit, and the provision of a cell phone.
74. His failure to carry out these duties and requirements were not a refusal to do so, but rather as a result of the lack of resources, of which the respondent was aware, yet failing to assist him.
75. Insofar as the applicant’s inference that the charges were broad, unclear, and vague, I find that as Education Specialist and Curriculum Advisor employed by the respondent, the applicant was expected to understand what was being requested of him, as this formed part of his job description. His core function was to provide support to schools (educators and learners) in the district.
76. The monthly reports and monthly plans were tools used by all Curriculum Advisors in the carrying out of their day-to-day duties. The applicant never led any testimony to suggest that he was unable to compile the monthly report for August and the monthly plan for September, as a result of his lack of knowledge thereof.
77. He conceded under cross-examination that the submission of these reports was compulsory and not of a voluntary nature. The applicant’s suggestion that the charges levelled against him failed to contain the nature of the reports is highly improbable, as he was fully aware of what the reports were expected to contain.
78. The applicant’s reliance of the charges failing to specify the exact time frame referred to by the respondent, for which he was expected to submit a monthly report and plan, cannot be accepted and is rejected. The charges specifically refer to “During 2016 or at any period incidental thereto…” This clearly stipulates the time frame for which the applicant’s failure to submit a monthly report and plan.
79. In letters addressed to the applicant by Mr. Mathivha and Mr. Mphephu, specific reference to dates of the required monthly report and plan are made, these being for August 2016 and September 2016, respectively.
80. In analysing and dealing with the procedural fairness of the dismissal, where the applicant claimed that as a result of the charges that were levelled against him being ambiguous, vague, broad and not levelled within a specific period, I am guided by the Labour Appeal Court in EOH Abantu (Pty) Ltd v CCMA & Others (JA4/18) [2019] ZALAC 57, where the Court held that charges must be formulated in such a manner that the employee may be able to answer them and that he approach adopted by courts and arbitrators must not be formalistic or technical. This is because lay persons often craft the charges too narrowly or incorrectly.
81. Similarly, in Malapalane v Glencore Operations South Africa (Pty) Ltd (Goedgevonden Colliery) and others [2018] ZALAC 22, the Court confirmed the principle that although disciplinary charges do not need to be strictly framed in accordance with the wording of the relevant acts of misconduct as listed in the employer’s disciplinary codes, it was held that it is sufficient that the misconduct alleged in the charge sheet, was set out with sufficient clarity so as to be understood by the employee.
82. In Avril Elizabeth Home for the Mentally Handicapped v CCMA and Others (2006) 27 ILJ 1644 (LC), where the minimum requirement for procedural fairness was considered, it was held that the employer was merely required to conduct an investigation, give the employee or his representative an opportunity to respond to allegations after a reasonable period and thereafter, to take a decision and give the employee notice thereof.
83. The applicant testified that he was not afforded an opportunity to state his case or cross-examine the respondent’s witness at the internal disciplinary inquiry. He further claimed that it was not procedurally fair for him to have been charged by the Superintendent General, as he did not know her and that the only person who could legally charge him, was the Circuit Manager, Mr. K G Mathivha. The respondent denied this claiming that the disciplinary process was both procedurally and substantively fair.
84. By his own admission, the applicant testified that he was represented at the disciplinary inquiry by a trade union representative of NAPTOSA, but that his representative did not object to the procedural unfairness of the disciplinary inquiry. He confirmed that the disciplinary hearing was conducted “in line with the law”.
85. Under cross examination, the applicant conceded that as he was an employer of the respondent and in line with section 1 of the Employment of Educators Act, he agreed that the Superintendent General was authorised to charge him in respect of disciplinary action.
86. His claim that the District Manager, K G Mathivha, was the only person authorised to bring disciplinary charges against him, was contradicted by his own testimony in that he claimed that the Director General was the only person authorised to institute disciplinary action against him.
87. Based on these submissions, I am persuaded that the applicant’s claim that the failure of his representative to object to the procedural fairness of the disciplinary inquiry, cannot be equated to the failure of the chairperson denying him an opportunity to have stated his case and cross-examine the respondent’s witness.
88. Insofar as the applicant’s claim that the reason for his inability to have carried out his duties (verification of evaluations) due to a lack of transport and/or a vehicle, he testified that he had applied for a subsidy vehicle in 2015 and that this application was approved, but to date, no vehicle was provided. If the applicant’s version was to be accepted, it would have been reasonably expected of him to have followed up with respondent insofar as its failure to have provided a vehicle. No evidence was led in this regard.
89. The applicant could not present any supporting documents to prove that he had applied for a vehicle in 2015, as per his testimony at these arbitration proceedings. Considering that this was the main reason for the applicant’s failure to fulfil his duties, it should be reasonably expected that in order to prove such an allegation, some proof of an application should have been submitted at these proceedings to support his claim. This was not done.
90. Mr. K G Mathivha testified that as the direct supervisor of the applicant and in his capacity as District Manager, he would have been required to consider, approve, and support the applicant’s application in respect of a subsidy vehicle. He submitted that the applicant never made an application in respect of a subsidy vehicle.
91. Mr. Mathivha further testified that the applicant owned a vehicle, being a Nissan 1400 Bakkie. This undisputed testimony was contrary to the testimony of Mr. Chuma, that he did not own a vehicle. Mr. Mathivha submitted that the applicant refused to use his own vehicle for work-related duties under scheme-B and also refused to apply for a subsidy vehicle.
92. Both Mr. Mathivha and Mr. Mphephu testified that despite the applicant’s version that he did not own a vehicle, that he had not received the vehicle for which he had successfully applied and that he failed to request the use of a pool vehicle, he could have travelled to schools with other Curriculum Advisors from the same Circuit, to support schools.
93. Despite his failure to have considered this, the applicant testified that he was unaware that such a request would have been approved or accepted by his supervisor, Mr. Mathivha. The absence of such a consideration by the applicant, especially since his core function was to visit schools in the Circuit and provide support to them, appears on a balance of probabilities, to be an intentional omission by the applicant, to avoid fulfilling his duties.
94. Insofar as the charge for failing to sign the Circuit Office attendance, the applicant submitted that this charge had been tampered with and such, should not be considered at these proceedings. The applicant was represented by a seasoned attorney who attended the pre-arbitration meeting as per my ruling to the parties on 31 May 2021. This issue was not contained in the parties’ common bundle as an issue in dispute. On the contrary, as per the pre-arbitration minutes signed by both parties, the parties agreed that the authenticity of the documents contained in the common bundle was not in dispute.
95. Despite my view above (para 93), if indeed the applicant was under the impression at the disciplinary hearing on 05 February 2018, that the attendance register referred to a school and not the Circuit Office, he testified on this and was afforded an opportunity at the arbitration proceedings, to provide his understanding insofar as the alleged ambiguity.
96. The applicant was pertinently questioned about his understanding of the nature of the attendance register, confirming that he did not work at any school or at the District Office, but at the Circuit Office. He testified that the attendance registers were kept in the office of the Circuit Manager and referred to the attendance registers during his testimony and cross-questioning.
97. The attendance registers referred to and contained in the evidence bundle are headed as “Hlanganani North Circuit Time Register”, suggesting that the applicant was fully aware of the nature of these attendance registers. I am persuaded to believe that the applicant has attempted to justify his failure to have signed the attendance registers, by claiming that he was unsure of whether these related to a specific school, or the Circuit Office.
98. His claim that the charges were tampered with, were nullified by the confirmation of the authenticity of the evidence bundle and the opportunity afforded to the applicant to answer to the clarity of the initial ambiguity claimed.
99. The applicant’s further testimony that he was the only Curriculum Advisor who was disciplined for failing to sign the attendance registers, despite others having done so too, was successfully rebutted by Mr. K G Mathivha. The District Manager testified that he was aware of the whereabouts of those who had not signed the register, as they were either conducting and/or attending workshops or visiting schools.
100. This was further cemented by Mr. Mathivha’s reasoning during his testimony that if the applicant’s claim was that he was unable to have visited schools due to a lack of transport, it was reasonably expected that the applicant was expected to have been at the Circuit Office, being his place of work.
101 . Having considered the parties’ submissions and arguments, and being guided by the judgements of the honourable courts in the case law cited herein, I find that on a balance of probability, that the decision to charge the applicant and the subsequent actions of the respondent were both procedurally and substantively justifiable and fair. As a result, the applicant’s claim to dismiss the charges, findings and sanction by the respondent, are hereby dismissed.
Award
1. The applicant, Mr. H E Chuma, has failed to successfully discharge his onus in this matter to prove the respondent’s unfair conduct in respect of its charges, findings, and sanction, relating to the applicant.
2. As a result of the aforesaid, the applicant’s claim is dismissed, and the ELRC is ordered to close its file in this matter.
George Georghiades
ELRC Dispute Resolution Panellist
ELRC 302 -20 /21 NW
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