Case No ELRC227-21/22FS
In the matter between
RJ Segalo Applicant
Department of Education: Free State Respondent
ARBITRATOR: AW Howden
HEARD: 25 November 2021
DATE OF AWARD: 06 December 2021
SUMMARY: Labour Relations Act 66 of 1995 – Alleged unfair dismissal in terms of Section 191 (1) [191 (5) (a)] – Dismissal related to misconduct.
DETAILS OF PROCEEDINGS AND REPRESENTATION
1. The dispute was scheduled for arbitration in terms of Section 191 (1) [191 (5) (a)] of the Labour Relations Act 66 of 1995 as amended (the LRA) read with Clause 17 of the ELRC Constitution: Dispute Resolution Procedure Annexure C (As amended 26 May 2021). The arbitration was held on 25 November 2021 via a Zoom platform.
2. The Applicant, Mr RJ Segalo – Persal No 11615040, was present and was represented by Mr K Lennox from Lovius Block Inc.
3. The Respondent, the Department of Education – Free State, was represented by Mr V Gubuza from the Labour Relations Department.
4. The Respondent submitted a bundle of documents. None of the documents were in dispute and it was agreed that the documents’ contents were what they purported to be.
5. Prior to the Arbitration hearing the Applicant submitted an Application for Legal Representation in terms of the Council’s Rules. The Respondent did not make any submissions or object to the application on the day. The Application for Legal Representation was granted.
ISSUES IN DISPUTE
6. I am required to determine whether or not the Applicant’s dismissal was both substantively and procedurally fair.
BACKGROUND TO THE DISPUTE
7. The Applicant was employed by the Respondent as a Head of Department at Ditholwana Primary School. At the time of the incident the Applicant was the Acting Principal at the school. The Applicant was dismissed on 23 March 2021 after a disciplinary hearing was held for the charge:
You have contravened Section 18.1 (ee) of the Employment of Educators Act 76 of 1998 in that on 11 January 2019 you, Mr Segalo, committed an act of dishonesty when you paid a Cheque to the amount of R50 632.72 (Cheque no 004588) to Mr M Mokitimi for text books that were never delivered to the school for a kickback of R6 000.00 for you (Mr Segalo – Acting Principal), Ms Mifi (Chairperson of the SGB) and Ms Molupe (Treasurer of the SGB) for personal use.
8. The Applicant seeks re-instatement, alternatively compensation.
SURVEY OF EVIDENCE AND ARGUMENT
9. Even though a Pre-Arbitration Meeting was held and Minutes signed on the day, the issues were narrowed down even further and the following was found to be common cause between the parties:
- That the Applicant was originally employed by the Respondent in March 1993.
- That the Applicant was appointed as an HoD at Ditholwana Primary School in January 2015.
- That the Applicant was appointed as the Acting Principal at Ditholwana Primary School from May 2018.
- That the Applicant earned a monthly salary of R33 483.69.
- That the Applicant was dismissed by the Respondent on 23 March 2021 after a disciplinary hearing for the charge mentioned in paragraph (7) above.
- That the Applicant’s dismissal was procedurally fair.
10. The issue in dispute is the substantive fairness of the Applicant’s dismissal. The onus to prove shifts to the Respondent.
11. At the outset I must point out that this is a brief summary of the evidence which is relevant to the central issues and that I have taken all evidence submitted into account when making my decision.
12. The Respondent’s first witness, Ms K Theletsane – Educator/Secretary for the SGB and Member of the Stock Committee, after being sworn in stated the following after questions were put to her by the Respondent’s Representative:
- That in 2018/2019 there was a shortage of books which she reported to the Applicant and the Applicant reported it to the SGB.
- That in 2019 a payment was made of R50 632.72 for books, however there was no formal meeting of the SGB where the payment was discussed and agreed upon.
- That she was not aware of any quotes.
- That this was the first payment for text books which she was not aware of.
- That as the Secretary of the SGB she should be aware of purchases.
- That there was a process that needed to be followed when making purchases.
13. The Respondent’s second witness, Ms M Molupe – Ex-Treasurer of the SGB, after being sworn in stated the following after questions were put to her by the Respondent’s Representative:
- That there was an agreement between herself, Mifi and the Applicant to buy the needed books from someone that would give them a gratitude.
- That she was given the power to get quotes which she did and she had received the quotes herself.
- That she had told the Applicant that after the books had been bought a Mr Mikitimi would come and thank them.
- That when payment was made to Mokitimi R6 000.00 came back.
- That this money was picked up by Mifi and Mifi took her R2000.00.
- That she had said she was not going to take her money as the books had not been delivered yet and the Applicant got/took R4 000.00.
- That the books were never delivered.
- That she had received three quotes, one being from Mokitimi.
- That there is a procedure for buying books. First get three quotes then sit and agree on the quotes and take the lesser one.
- That the payment was not a bribe but Mokitimi needed to thank them for the work.
- That the SGB Committee never sat and she was called to the school by the Applicant and told to go look for books as the Applicant and Mifi had agreed they must look for someone to buy books from and would give something to them.
- That the cheque was signed by the Applicant and Mifi.
- That the purchase was unprocedural.
- That the SGB Committee consists of 5 members.
14. The Respondent’s third witness, Ms S Mifi – Ex-Chairperson of the SGB, stated the following after questions were put to her by the Respondent’s Representative:
- That she had received a call from Molupe as Molupe had found a service provider for the books.
- That she had asked Molupe how she was able to do this without going through the process with the SGB.
- That Molupe had said to forget the process as the guy who was going to buy the books would compensate them.
- That she had received a call from Molupe to go and sign the cheque at school.
- That at the school she found the Applicant and Mokitimi and the Applicant had confirmed that she needed to come to sign a cheque.
- That Mokitimi was going to buy the books for the school and compensate them each with R2 000.00.
- That she and the Applicant had signed the cheque and it was issued to Mokitimi.
- That she got a call from Molupe and she was told to meet Mokitimi at FNB who would then give her R6 000.00.
- That she had taken her R2 000.00 and given the Applicant the R4 000.00.
- That Molupe did not take her share and the Applicant left with the R4 000.00.
- That the SGB had not met to discuss the quotes for the books.
15. After being sworn in the Applicant testified to the following after questions were put to him by his Representative:
- That he did not dispute receiving a kickback of R2 000.00.
- That he had received the money from Mifi who had said she was called by Molupe and told to collect the money from Mokitimi.
- That the first time he was aware of the kickback was when he received the money from Mifi.
- That he had not initiated the meeting with Mokitimi.
- That he had requested Theletsane to check on the book numbers as he wanted to buy books.
- That Theletsane had not given feedback and when requested why, was informed that Molupe had taken the list.
- That five days later Molupe had called him saying she already had three quotes.
- That he was not dishonest as he did not know what he was doing and did not realize it was against the law.
- That he did not realize the money was a bribe.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
16. It is common cause that the dismissal was procedurally fair.
17. Looking at the substantive fairness of the dismissal.
18. When looking at dismissal for misconduct one needs to take the Guidelines in Item 7 of Schedule 8 in the LRA into consideration. The aforementioned guidelines are as follows:
(a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
(b) if a rule or standard was contravened, whether or not-
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
(iii) the rule or standard has been consistently applied by the employer; and
(iv) an appropriate sanction for the contravention of the rule or standard.
19. From the submissions of the parties it is evident that there was a valid or reasonable rule or standard, that the Applicant was aware of the rule or standard or could be reasonably expected to have been aware of the rule or standard even though the Applicant had pleaded ignorant.
20. The Applicant did not dispute consistency and the Respondent did not lead any evidence in this regard and it is going to be assumed that the rule(s) or standard(s) are consistently applied by the Respondent.
21. The issues I need to determine is whether or not the Applicant contravened the rule(s) or standard(s) and whether or not the dismissal sanction was appropriate under the circumstances.
22. Looking at whether the Applicant contravened the rule or standard.
23. From the submissions of the parties it is evident that the following is also common cause:
- That the procurement procedures were not followed when purchasing the text books for the school.
- That a cheque for R50 632.72 was issued on 11 January 2019 to Mokitimi which cheque was signed by the Applicant and Mifi.
- That the text books were never received although payment had already been made.
- That a R6 000.00 kickback had been received from Mokitimi, Mifi had taken R2 000.00 and the Applicant had taken R4 000.00 and personally used the money.
24. The Applicant has basically stated that he was ignorant of the procurement procedures and that Molupe had misled him and put him in that awkward position. To plead ignorance without any evidence to substantiate the claim is hopelessly insufficient at this juncture.
25. The Applicant’s version of being completely ignorant of the procurement procedures was never put to any of the Respondent’s witnesses. The Applicant’s Representative attempted to imply this with some of the questions asked during cross-questioning, however just because it was a small school and they did not make big purchases as often as other schools, it did not prove that the Applicant was ignorant of the procurement procedures.
26. The versions of being mislead and placed in a difficult position by Molupe was also never put to Molupe in any way.
27. The Applicant is a well educated mature man who had accepted a position of responsibility as Acting Principal. Why would such a person, who would be considered to be a responsible and reasonable person, just sign a cheque for such a large amount after being kept in the dark by another person throughout the whole process of purchasing an item(s) from a service provider.
28. In this day and age where bribery/corruption and “tenderpreneurship” is the order of the day, it is inconceivable that a reasonable and a responsible person would do such a thing.
29. The Applicant maintained throughout the whole procedure that he had not seen the “kickback” as a bribe or that there was anything wrong with receiving the money. This in itself is dishonesty.
30. During cross-questioning the Applicant confirmed that he had only become aware of the fact that he had received a bribe some two to three weeks later when Mokitimi did not keep his promise. An inference that can be made here is that the Applicant suddenly realized he was going to be exposed for his misdeeds and conveniently had a change of heart.
31. The Applicant’s Representative under cross-questioning of Mifi stated that the Applicant’s version was that he had realized the process was flawed when he had received the kickback money from Mifi. The Applicant however did nothing to attempt to rectify the issue or report his actions to the Respondent at this point. The Applicant however opted to remain quiet and only chose to take steps after he had seen the books were not going to be delivered. Once again an inference that can be made here is that the Applicant realized he was going to be exposed.
32. The Applicant has chosen to plead ignorance and attempted to shift the blame to others, however based on the submissions of the parties and on the balance of probability, it is my finding that the Applicant has acted dishonestly in this matter and has contravened the rules or standards in doing so.
33. Looking at whether the dismissal sanction was appropriate under the circumstances.
34. As mentioned above the Applicant has chosen to plead ignorance and has attempted to shift the blame. Not once did the Applicant accept responsibility for his actions. Not once did the Applicant show any remorse for his actions.
35. In Department of Labour v GPSSBC (2010) 31 ILJ 1313 (LAC) the Labour Appeal Court confirmed the principle that a sanction aimed at correction and rehabilitation* is of no purpose when an employee refuses to acknowledge the wrongness of his/her conduct. (Emphasis added*).
36. In Department of Home Affairs & another/Ndlovu & others (2014) ILJ 3340 (LAC) it is said that in order to prove that the sanction of dismissal was appropriate, the employer must present evidence to prove breakdown in the employment relationship. Such evidence is not necessary where the breakdown is apparent from the nature of the offence and the circumstances.
37. In this matter the Respondent did not lead any evidence in this regard, however looking at the circumstances surrounding the incident and the nature of the misconduct, I believe this is not necessary.
38. In Sidumo and Another v Rustenburg Platinum Mines Ltd & Others  28 ILJ 2405 (CC);  12 BLLR 1097 (CC) in terms of the LRA a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all the relevant factors and circumstances.
39. It is not the Arbitrator’s role to determine whether the Applicant should have been dismissed for the misconduct or not, as that is the Respondent’s prerogative. The Arbitrator’s role is to decide whether what the Respondent did was fair under the circumstances. It is my finding that the Respondent had acted fairly under the circumstances when dismissing the Applicant.
40. Taking all this into account, and based on the balance of probability, it is my finding that the Respondent has proven that the dismissal of the Applicant was substantively and procedurally fair.
41. The dismissal of the Applicant, RJ Segalo – Persal No 16115040, by the Respondent, the Department of Education – Free State, was both substantively and procedurally fair. The application is dismissed.
Panellist: AW Howden