ELRC644-20/21 EC
Text
PSES 262-18/19KZN
Award Date:
03 March 2022
IN THE ELRC ARBITRATION
BETWEEN:
CTU-ATU obo Zolani Mzanywa Applicant
And
DEPARTMENT OF EDUCATION – KZN PROVINCE Respondent
ARBITRATION AWARD
Case Number: PSES 262-18/19KZN
Last date of arbitration: 30 September 2021
Receipt of closing arguments: 14 January 2022
Date of award: 03 March 2022
Sent to ELRC: 03 March 2022 (timeline provided below)
VUYOKAZI NGWENYA
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.org.za SelloM@elrc.org.za MatloseM@elrc.org.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION
1. This matter has taken over two years to finalise. The chronological order of events is provided for in paragraphs below. The proceedings were characterized by innumerable delays and postponements.
2. The first day of arbitration was on 04 September 2019, followed by 25 November 2019, 05 February 2020. At this stage it is important to mention that from late March to mid-May 2020, the Council did not set down any hearings due to Level 5 Lockdown COVID-19 regulations. Post May 2020, part heard matters were set down, where parties consented to virtual hearings conducted via Zoom. The Applicant expressed reservations regarding the said method. He stated that he preferred the face to face proceedings. I also contracted the corona virus and was unavailable for any work related engagements for quite a while as my other medical conditions resurfaced. The matter was then set down for hearing on 15 April 2021 the Applicant’s representative was unavailable and postponement was duly granted.
3. The matter was rescheduled to the 12 May 2021, neither the Applicant nor his representative was unavailable. Despite numerous telephonic calls I was unable to get hold of any of the two. I stood the matter down for an hour. To accommodate them, one more time, a postponement ruling was issued and the matter was rescheduled for 30 September 2021. On the day the Applicant sought another postponement, the reason being that his representative was unavailable. Application for postponement was denied and the matter proceeded.
4. The Applicant is Mr Zolani Mzanywa, represented by Mr Siyabonga Mazibuko, a union official from CTU-ATU (Combined trade union-Autonomous trade union). The Respondent is the KwaZulu Natal Department of Education, represented by Mr A Preethpaul, an official in the Respondent’s labour relations office.
5. Both parties indicated that the services of an interpreter would not be needed. The hearing was conducted at the Durban Teachers Centre in Overport KZN.
6. On the last day of arbitration, parties were directed to submit their closing arguments. The Applicant specifically requested additional time to submit his. His reasons were that he needed his attorney to draft same on his behalf or the very least consult with him for legal advice. Throughout the proceedings from 2019 the Applicant’s stance was that his union would represent him at the hearing and he would consult with his attorney as and when he deemed appropriate. The Applicant was at some point asked if he wanted to apply for legal representation and his response was in the negative. I specifically mention that the Applicant advised that he had been interacting with attorneys ever since he was served the notice to attend the disciplinary hearing. He made it clear that he would continue to interact with his attorneys ‘on the side’ as it were, and rely on union representation during these proceedings. (I found this to be strange but nonetheless respected it hence the latitude of time given to the Applicant regarding the submission of his closing arguments.)
7. I confirm that I advised the case manager of the delay in this matter. In fact, since this case was characterized by delays from the onset, I was determined to afford the Applicant more than enough time to comply. The closing arguments were ultimately forwarded in an email dated 14 January to the Council’s offices.
8. I drafted and completed the award a few days later. Because of the delays in this matter I had forgotten to put an electronic personal reminder, as I often do with other matters. It transpired a few days ago that the award was in fact not sent to the ELRC. This was an error on my part. I discovered when the case manager sent me WhattsApp messages and emails requesting me to urgently send the long outstanding award. Following a diligent search I could not find any evidence that I had sent it. I concede that I erred. What in fact happened was that I drafted the award and saved it on my computer instead of sending it to the Council. An occurrence I consider both strange and curious.
9. The delay in submission is therefore not deliberate and any inconvenience caused to parties is deeply regretted. My non-compliance with the ELRC rules in submitting the award timeously will be dealt with separately. To this end, I will submit a separate report to the ELRC.
TERMS OF REFERENCE AND ISSUES TO BE DECIDED
10. The arbitration takes place in terms of the referral of the dispute by the Applicant. The Applicant was employed by the Respondent as an educator at Buhlebemfundo Secondary School under the Pinetown District.
11. The Applicant was dismissed on 07 November 2017. His referral to the Council was over 200 days late. Following an application to condone the late referral was duly condoned of the dispute, the Applicant’s request was successful.
12. The Applicant is challenging both the substantive and procedural fairness of the dismissal and is seeking reinstatement with full backpay as a relief.
PRELIMINARY ISSUES AND BACKGROUND
13. Documents were submitted and perused accordingly.
14. It is common cause that the primary reason for dismissal was the Applicant’s refusal to sign report cards of the learners he was teaching.
15. It is also common cause that there was an incident in the past where it was alleged that the Applicant’s signature was forged.
SUMMARY OF EVIDENCE AND ARGUMENTS
Respondent’s case
16. The Respondent submitted a bundle of documents.
17. The Respondent called Mr Bonginkosi Kati as its first witness.
18. The following is the summary of his testimony:
19. He is the principal at Buhlebemfundo School in Clermont and the Applicant was one of the staff members. He was essentially dismissed for repeatedly refusing to sign learners’ report cards. He then gave a detailed background: the Applicant approached him sometime in 2014 and informed him that there were fraudulent activities in his personal accounts, apparently someone was forging his signature. The Applicant cited the 2012 incident whereby a nursing college telephonically contacted the school and wanted them to verify the results of a ‘learner’ who was never part of their school. Upon receiving a copy of the said report it was discovered that it was fraudulent and so was the forged signature which appeared to be that of the Applicant’s. Lo and behold, the Applicant accused him of knowing the people behind the deed and that he, the principal was protecting them. At no stage did he give him the names of the so called culprits or even provide any relevant details.
20. The Applicant vehemently refused to sign any work related document. As the principal of the school he did his best to get the Departmental Heads, Site Committee, Union to intervene, despite all efforts, the Applicant still refused to sign. He then escalated the matter to the Circuit Manager who advised the Applicant to refer the matter to SAPS (the police). He referred to pages 54a, 55, 56 and 57 which are in essence, correspondence relating to the matter and the Applicant’s response thereto.
21. The school has a duty to account to parents on a quarterly basis, signed report cards are therefore important as they enable parents to see the progress, or lack thereof, of a child. Despite repeated instructions, the Applicant still refused to sign. He ended up asking other teachers to sign. It would have been very wrong to send unsigned reports to parents.
22. Eventually, after all had been done, the Applicant was given a notice to attend a disciplinary hearing and the charge is as reflected on page 53 of the bundle. It read : ‘In that in (sic) or about 2015 and/or 2016 and at or near the Buhlebemfundo Secondary School, you failed to carry out a lawful order and/or a routine instruction given by Mr C B Kati, the Principal of the School in that you refused to sign report cards of learners placed under your care. In so doing you contravened Section 18(1) (i) of the Employment of Educators Act 76 of 1998 as amended.’
23. Under cross examination, he was asked about the union’s recommendation that there should have been an investigation, his response was that he had no recollection of such, in fact he recalled that the union had in fact advised the Applicant to comply. When asked if he considered the sanction of dismissal fair given the high unemployment rate, his response was that on behalf of the Respondent, the school did everything to get the Applicant to comply. There were various interventions involving the union, the district office and other educators but the Applicant simply refused to comply. He continued to add that the Applicant was given several verbal and written warnings relating to his constant refusal to sign.
24. Even though the Applicant had his union representative with him, I afforded him an opportunity to cross examine the witness. He asked the witness how and why he was involved with a nursing school. The response was that there was no involvement except that the nursing school called them to verify the report sent by one of the nursing candidates. The said incident happened in 2012 and upon investigation it transpired that it was a fraudulent and the signature was forged.
25. The Respondent second witness was Mr Musawenkosi Eric Mabaso. He is the Deputy Director: Employee Relations. He testified as follows:-
26. He presided over the Applicant’s disciplinary hearing. The matter sat over a 5 day period and the delays were caused by the Applicant. At first he demanded legal representation and he was told that his attorney needed to be present to make that application or do so formally in writing. On the second occasion the Applicant simply did not show up and the matter was postponed. On the following occasion he was informed that the Applicant is in fact a union official and so he had to direct the Respondent to notify the union of the Applicant’s disciplinary hearing. The matter was duly adjourned. On another occasion the Applicant’s representative was busy with another matter elsewhere and he had to postpone the hearing yet again.
27. He confirmed that the Applicant was given an opportunity to cross-examine the Respondent’s witnesses. The Applicant testified on his behalf and he said he would call two more witnesses to testify on fake school report cards with fake signatures, the Respondent’s representative at the hearing stated that they would not challenge/cross-examine those particular witnesses in respect of that specific testimony. As a presiding officer he then said that the Applicant could simply ask those witnesses to present affidavits if there was a need.
28. Under cross-examination: When asked if he considered the sanction of dismissal fair, his response was that he had specifically asked a question during the hearing if the Applicant was prepared to go back to school and sign the report cards as expected and his response was a solid NO. When asked why he ignored Kati’s (the principal) failure to investigate the matter, his response was that he was satisfied with the evidence that was presented before him by the principal and did not have any evidence put before him to suggest that Kati, the principal failed to investigate.
29. Again, the Applicant indicated that he wanted to cross-examine the witness, I gave him the opportunity to do so. He put it to the witness that he manipulated the process, the witness denied having done so.
The Applicant’s case
30. The Applicant asked for an adjournment because his witnesses were not available. I informed him of his right to subpoena them through the Council’s office. We had to adjourn in order to afford him the opportunity to do so.
31. On the next occasion the Applicant, Zolani Mzanywa, took an oath and testified as follows:-
32. The Respondent did not follow the right procedure in dismissing him in that his representatives were not given time to represent him at the disciplinary enquiry and that he was not given an opportunity to call his witnesses.
33. On a substantive basis, he testified that he refused to sign the report cards because that would have put his career at risk since there were fraudulent activities and his signature was forged. Secondly, there was victimization and the principal used to shout at the teachers in front of the learners. There were different ‘camps’ or factions and a lot of victimization by the principal. The principal, Kati, knew who the perpetrators were but he chose to target him severely.
34. He wanted to open a criminal case and Kati, the principal told him that his name as well was also implicated.
35. He should not have been dismissed for not signing, the Respondent should have called the principal to order. Signing without checking the documents once put Mr Bheki Cele, the politician, in trouble.
36. He was dismissed because they wanted to make a profit out of his salary, they clearly wanted to benefit. The Respondent lacks ethical leadership and there is serious incompetency.
37. Under cross-examination, he conceded that Kati, the principal did send various HODs to ask him to sign the report cards and he refused. When asked why he did not put his version to Kati that he, the Applicant, was victimized, his response was that Kati was at fault. He also conceded that the incident involving his forged signature and the nursing school did in fact happen in 2012. He conceded also that during 2012 and 2013, (after the forged signature incident) he did continue to sign the report cards. He said he stopped because he realized that he was being taken for a ride, there was no investigation conducted. The Applicant then accused the Respondent’s representative of not presenting additional information before me. I interjected and advised the Applicant that when we first started I did afford both parties to present relevant information and if needs be, ask for disclosure of further information. The Applicant’s response was that they are protecting each other.
38. The Applicant conceded that it was his duty to sign but he stopped because his name was implicated in a crime and he could have been arrested. He also conceded that in the report card, the educator has to sign and the principal countersigns.
SUMMARY OF ARGUMENTS
39. The Respondent argued that the evidence placed before me is sufficient to prove that the Applicant’s dismissal was both substantively and procedurally fair. Dismissal was an appropriate sanction because the Applicant was given several chances to reconsider his refusal to comply with a lawful instruction.
40. The Applicant in an email dated 13 January 2022 sent his brief closing statements to his attorney’s office, who in turn sent it to the Council the very next day, without any delays. In essence he stated the following:
41. He should be reinstated because the charges/sanction imposed on him was unreasonable and irrelevant. The Respondent had a personal vendetta against him, and they wanted to dismiss him so that there could be a vacant post for their family and friends. He should have been exempted from his duties because he was implicated in a crime. The instruction that led to his dismissal put his life and career at risk therefore it was unreasonable. The chairperson of the disciplinary hearing was bias and manipulative. There was no harm to anyone as the learners continued to receive their report cards. The Respondent is responsible for the delays and it was an abuse of power on their part. Not only must he be reinstated but his contract must be back dated to 2006
ANALYSIS OF EVIDENCE AND ARGUMENT
42. The dismissal of the Applicant is not in dispute.
43. The Applicant disputed the substantive and procedural fairness of the dismissal, and the Respondent has the duty to prove the fairness thereof.
44. I will commence with the procedural aspect. The Applicant argued that Mabaso, the Respondent’s witness who was also the presiding officer of the internal disciplinary hearing, was biased. He did not say how so except to state that his representative were not allowed to represent him. This is not true and the Applicant himself did not challenge Mabaso on this point when cross examining him, Mabaso stated that there were several postponements occasioned by the Applicant’s and his representative’s unavailability. The hearings were rescheduled several times to accommodate them. The Applicant wanted legal representation, he was told how to go about doing so, and he elected to abandon that pursuit. He was initially represented by SADTU and later on by another union. The presiding officer accommodated all of this. Secondly the Applicant’s belief that his witnesses were not allowed is also not true. From the disciplinary hearing outcome it is clear that the Respondent’s representative at the internal hearing stated clearly that they are not disputing the fact that there were report cards with fake signatures, the Applicant had stated that was going to be the evidence of his witnesses. If the other side said they would not be contesting that evidence then there is no reason why such witnesses should be called.
45. Despite the fact that I granted the Applicant adequate time to prepare for cross-examination and in addition to that asked him if he had any other questions to ask the witnesses after his representative had cross-examined them, demonstrates that the Applicant was afforded enough time to put a version or ask whatever questions he had to the witnesses. He chose not to do so. Failure on his part is clearly by design and not at all unfortunate.
46. I therefore find that there was no procedural irregularity in dismissing the Applicant.
47. I now deal with the substantive part of the Applicant’s dismissal. The Applicant was dismissed for failure to obey a lawful and reasonable instruction. The instruction was that he signs the report cards as part of his duties. The Applicant does not at all dispute that such is indeed part of his duties.
48. He conceded that the incident that led to his refusal to sign the report cards occurred in 2012. Briefly, it was discovered that someone had forged his signature and signed a fraudulent report card. This was discovered when the bogus learner applied to a Nursing school/college. Upon verification of the results it became clear that there were fraudulent activities. Be that as it may, the Applicant along with all his colleagues were still expected to sign the school report cards of leaners. It was only about three years later that the Applicant stopped signing. He himself conceded that there were several interventions. He in fact did not dispute Kati’s (the school principal) testimony.
49. Kati was clear, concise and he provided full information and sequence of events as they unfolded. The Applicant accused him of protecting the culprits but he, the Applicant, failed to provide the names of the culprits or at the very least sound evidence to suggest that Kati knew who the culprits were.
50. Applicant said he felt that forcing him to sign report cards was akin to coercing him to engage in criminal activities which could put his life and career at risk. Yet he failed to provide detail in this regard or at the very least report Kati to his superiors or report the matter to the police. The Applicant was confused and difficult to follow. For just over two years after it was discovered that his signature was forged he continued as normal to sign the school report cards and then suddenly stopped on the third year demanding that Kati provide him with the investigation outcome. He then accused the Respondent of incompetency and lack of ethical leadership. How so? In what way is the principal incompetent if the culprit who forged signatures could not be found out?
51. Providing the stakeholders, parents with complete learners’ report cards is a legislative requirement. The Applicant knew that, he said so himself. It is not clear then where did he get the idea that he could suddenly stop/refuse and make demands on his superior.
52. The Applicant also argued that he was victimized by Kati yet that version was never presented to Kati under cross-examination. He also wrote in his closing arguments that his date of appointment should be backdated to 2006. I have no authority to do so even if I found in his favour.
53. The Applicant further made serious allegations, during his testimony he said that he was dismissed so that the school could make a profit at his expense i.e his salary. In his closing arguments he stated that he was dismissed so that the officials could hire their friends and relatives in the post he vacated. Such allegations are serious, however, the Applicant did not provide me with any solid evidence in that regard.
54. The Applicant argued that dismissal was inappropriate and too harsh yet he did not dispute Mabaso’s testimony that at the internal hearing he specifically asked the Applicant if he would comply with instruction to sign the report cards if he were to be given another opportunity. Mabaso said the Applicant said no. What then could have been an appropriate sanction for an educator who had clearly stated that he would not comply with a reasonable and lawful instruction? Despite efforts to make him see the error of his ways, the Applicant refused to see reason.
55. There is absolutely nothing that the Applicant has presented before me to show that he was unfairly treated and that his dismissal was inappropriate.
56. Based on the above, I therefore find that the Respondent did discharge the onus of proving both substantive and procedural fairness.
57. As a side issue, the Applicant demonstrated knowledge of the law, however he struggled with its proper application despite my numerous intervention he was adamant that his way is the right way. He also showed total disrespect of those in authority. It is my observation and belief that he can still change and focus on the positive side. He is generally knowledgeable but he needs to change his approach and outlook to life. The potential in him is without limits and he can still make a positive contribution to the education system at large.
FINDING
58. I therefore find that the dismissal of the Applicant was both substantively and procedurally fair.
AWARD
I make the following award:-
59. The application is dismissed.
VUYOKAZI NGWENYA
Arbitrator 03 March 2022
PSES262-18/19
BETWEEN:
CTU-ATU obo Zolani Mzanywa Applicant
And
DEPARTMENT OF EDUCATION – KZN PROVINCE Respondent
ARBITRATION AWARD
Case Number: PSES 262-18/19KZN
Last date of arbitration: 30 September 2021
Receipt of closing arguments: 14 January 2022
Date of award: 03 March 2022
Sent to ELRC: 03 March 2022 (timeline provided below)
VUYOKAZI NGWENYA
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.org.za SelloM@elrc.org.za MatloseM@elrc.org.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION
1. This matter has taken over two years to finalise. The chronological order of events is provided for in paragraphs below. The proceedings were characterized by innumerable delays and postponements.
2. The first day of arbitration was on 04 September 2019, followed by 25 November 2019, 05 February 2020. At this stage it is important to mention that from late March to mid-May 2020, the Council did not set down any hearings due to Level 5 Lockdown COVID-19 regulations. Post May 2020, part heard matters were set down, where parties consented to virtual hearings conducted via Zoom. The Applicant expressed reservations regarding the said method. He stated that he preferred the face to face proceedings. I also contracted the corona virus and was unavailable for any work related engagements for quite a while as my other medical conditions resurfaced. The matter was then set down for hearing on 15 April 2021 the Applicant’s representative was unavailable and postponement was duly granted.
3. The matter was rescheduled to the 12 May 2021, neither the Applicant nor his representative was unavailable. Despite numerous telephonic calls I was unable to get hold of any of the two. I stood the matter down for an hour. To accommodate them, one more time, a postponement ruling was issued and the matter was rescheduled for 30 September 2021. On the day the Applicant sought another postponement, the reason being that his representative was unavailable. Application for postponement was denied and the matter proceeded.
4. The Applicant is Mr Zolani Mzanywa, represented by Mr Siyabonga Mazibuko, a union official from CTU-ATU (Combined trade union-Autonomous trade union). The Respondent is the KwaZulu Natal Department of Education, represented by Mr A Preethpaul, an official in the Respondent’s labour relations office.
5. Both parties indicated that the services of an interpreter would not be needed. The hearing was conducted at the Durban Teachers Centre in Overport KZN.
6. On the last day of arbitration, parties were directed to submit their closing arguments. The Applicant specifically requested additional time to submit his. His reasons were that he needed his attorney to draft same on his behalf or the very least consult with him for legal advice. Throughout the proceedings from 2019 the Applicant’s stance was that his union would represent him at the hearing and he would consult with his attorney as and when he deemed appropriate. The Applicant was at some point asked if he wanted to apply for legal representation and his response was in the negative. I specifically mention that the Applicant advised that he had been interacting with attorneys ever since he was served the notice to attend the disciplinary hearing. He made it clear that he would continue to interact with his attorneys ‘on the side’ as it were, and rely on union representation during these proceedings. (I found this to be strange but nonetheless respected it hence the latitude of time given to the Applicant regarding the submission of his closing arguments.)
7. I confirm that I advised the case manager of the delay in this matter. In fact, since this case was characterized by delays from the onset, I was determined to afford the Applicant more than enough time to comply. The closing arguments were ultimately forwarded in an email dated 14 January to the Council’s offices.
8. I drafted and completed the award a few days later. Because of the delays in this matter I had forgotten to put an electronic personal reminder, as I often do with other matters. It transpired a few days ago that the award was in fact not sent to the ELRC. This was an error on my part. I discovered when the case manager sent me WhattsApp messages and emails requesting me to urgently send the long outstanding award. Following a diligent search I could not find any evidence that I had sent it. I concede that I erred. What in fact happened was that I drafted the award and saved it on my computer instead of sending it to the Council. An occurrence I consider both strange and curious.
9. The delay in submission is therefore not deliberate and any inconvenience caused to parties is deeply regretted. My non-compliance with the ELRC rules in submitting the award timeously will be dealt with separately. To this end, I will submit a separate report to the ELRC.
TERMS OF REFERENCE AND ISSUES TO BE DECIDED
10. The arbitration takes place in terms of the referral of the dispute by the Applicant. The Applicant was employed by the Respondent as an educator at Buhlebemfundo Secondary School under the Pinetown District.
11. The Applicant was dismissed on 07 November 2017. His referral to the Council was over 200 days late. Following an application to condone the late referral was duly condoned of the dispute, the Applicant’s request was successful.
12. The Applicant is challenging both the substantive and procedural fairness of the dismissal and is seeking reinstatement with full backpay as a relief.
PRELIMINARY ISSUES AND BACKGROUND
13. Documents were submitted and perused accordingly.
14. It is common cause that the primary reason for dismissal was the Applicant’s refusal to sign report cards of the learners he was teaching.
15. It is also common cause that there was an incident in the past where it was alleged that the Applicant’s signature was forged.
SUMMARY OF EVIDENCE AND ARGUMENTS
Respondent’s case
16. The Respondent submitted a bundle of documents.
17. The Respondent called Mr Bonginkosi Kati as its first witness.
18. The following is the summary of his testimony:
19. He is the principal at Buhlebemfundo School in Clermont and the Applicant was one of the staff members. He was essentially dismissed for repeatedly refusing to sign learners’ report cards. He then gave a detailed background: the Applicant approached him sometime in 2014 and informed him that there were fraudulent activities in his personal accounts, apparently someone was forging his signature. The Applicant cited the 2012 incident whereby a nursing college telephonically contacted the school and wanted them to verify the results of a ‘learner’ who was never part of their school. Upon receiving a copy of the said report it was discovered that it was fraudulent and so was the forged signature which appeared to be that of the Applicant’s. Lo and behold, the Applicant accused him of knowing the people behind the deed and that he, the principal was protecting them. At no stage did he give him the names of the so called culprits or even provide any relevant details.
20. The Applicant vehemently refused to sign any work related document. As the principal of the school he did his best to get the Departmental Heads, Site Committee, Union to intervene, despite all efforts, the Applicant still refused to sign. He then escalated the matter to the Circuit Manager who advised the Applicant to refer the matter to SAPS (the police). He referred to pages 54a, 55, 56 and 57 which are in essence, correspondence relating to the matter and the Applicant’s response thereto.
21. The school has a duty to account to parents on a quarterly basis, signed report cards are therefore important as they enable parents to see the progress, or lack thereof, of a child. Despite repeated instructions, the Applicant still refused to sign. He ended up asking other teachers to sign. It would have been very wrong to send unsigned reports to parents.
22. Eventually, after all had been done, the Applicant was given a notice to attend a disciplinary hearing and the charge is as reflected on page 53 of the bundle. It read : ‘In that in (sic) or about 2015 and/or 2016 and at or near the Buhlebemfundo Secondary School, you failed to carry out a lawful order and/or a routine instruction given by Mr C B Kati, the Principal of the School in that you refused to sign report cards of learners placed under your care. In so doing you contravened Section 18(1) (i) of the Employment of Educators Act 76 of 1998 as amended.’
23. Under cross examination, he was asked about the union’s recommendation that there should have been an investigation, his response was that he had no recollection of such, in fact he recalled that the union had in fact advised the Applicant to comply. When asked if he considered the sanction of dismissal fair given the high unemployment rate, his response was that on behalf of the Respondent, the school did everything to get the Applicant to comply. There were various interventions involving the union, the district office and other educators but the Applicant simply refused to comply. He continued to add that the Applicant was given several verbal and written warnings relating to his constant refusal to sign.
24. Even though the Applicant had his union representative with him, I afforded him an opportunity to cross examine the witness. He asked the witness how and why he was involved with a nursing school. The response was that there was no involvement except that the nursing school called them to verify the report sent by one of the nursing candidates. The said incident happened in 2012 and upon investigation it transpired that it was a fraudulent and the signature was forged.
25. The Respondent second witness was Mr Musawenkosi Eric Mabaso. He is the Deputy Director: Employee Relations. He testified as follows:-
26. He presided over the Applicant’s disciplinary hearing. The matter sat over a 5 day period and the delays were caused by the Applicant. At first he demanded legal representation and he was told that his attorney needed to be present to make that application or do so formally in writing. On the second occasion the Applicant simply did not show up and the matter was postponed. On the following occasion he was informed that the Applicant is in fact a union official and so he had to direct the Respondent to notify the union of the Applicant’s disciplinary hearing. The matter was duly adjourned. On another occasion the Applicant’s representative was busy with another matter elsewhere and he had to postpone the hearing yet again.
27. He confirmed that the Applicant was given an opportunity to cross-examine the Respondent’s witnesses. The Applicant testified on his behalf and he said he would call two more witnesses to testify on fake school report cards with fake signatures, the Respondent’s representative at the hearing stated that they would not challenge/cross-examine those particular witnesses in respect of that specific testimony. As a presiding officer he then said that the Applicant could simply ask those witnesses to present affidavits if there was a need.
28. Under cross-examination: When asked if he considered the sanction of dismissal fair, his response was that he had specifically asked a question during the hearing if the Applicant was prepared to go back to school and sign the report cards as expected and his response was a solid NO. When asked why he ignored Kati’s (the principal) failure to investigate the matter, his response was that he was satisfied with the evidence that was presented before him by the principal and did not have any evidence put before him to suggest that Kati, the principal failed to investigate.
29. Again, the Applicant indicated that he wanted to cross-examine the witness, I gave him the opportunity to do so. He put it to the witness that he manipulated the process, the witness denied having done so.
The Applicant’s case
30. The Applicant asked for an adjournment because his witnesses were not available. I informed him of his right to subpoena them through the Council’s office. We had to adjourn in order to afford him the opportunity to do so.
31. On the next occasion the Applicant, Zolani Mzanywa, took an oath and testified as follows:-
32. The Respondent did not follow the right procedure in dismissing him in that his representatives were not given time to represent him at the disciplinary enquiry and that he was not given an opportunity to call his witnesses.
33. On a substantive basis, he testified that he refused to sign the report cards because that would have put his career at risk since there were fraudulent activities and his signature was forged. Secondly, there was victimization and the principal used to shout at the teachers in front of the learners. There were different ‘camps’ or factions and a lot of victimization by the principal. The principal, Kati, knew who the perpetrators were but he chose to target him severely.
34. He wanted to open a criminal case and Kati, the principal told him that his name as well was also implicated.
35. He should not have been dismissed for not signing, the Respondent should have called the principal to order. Signing without checking the documents once put Mr Bheki Cele, the politician, in trouble.
36. He was dismissed because they wanted to make a profit out of his salary, they clearly wanted to benefit. The Respondent lacks ethical leadership and there is serious incompetency.
37. Under cross-examination, he conceded that Kati, the principal did send various HODs to ask him to sign the report cards and he refused. When asked why he did not put his version to Kati that he, the Applicant, was victimized, his response was that Kati was at fault. He also conceded that the incident involving his forged signature and the nursing school did in fact happen in 2012. He conceded also that during 2012 and 2013, (after the forged signature incident) he did continue to sign the report cards. He said he stopped because he realized that he was being taken for a ride, there was no investigation conducted. The Applicant then accused the Respondent’s representative of not presenting additional information before me. I interjected and advised the Applicant that when we first started I did afford both parties to present relevant information and if needs be, ask for disclosure of further information. The Applicant’s response was that they are protecting each other.
38. The Applicant conceded that it was his duty to sign but he stopped because his name was implicated in a crime and he could have been arrested. He also conceded that in the report card, the educator has to sign and the principal countersigns.
SUMMARY OF ARGUMENTS
39. The Respondent argued that the evidence placed before me is sufficient to prove that the Applicant’s dismissal was both substantively and procedurally fair. Dismissal was an appropriate sanction because the Applicant was given several chances to reconsider his refusal to comply with a lawful instruction.
40. The Applicant in an email dated 13 January 2022 sent his brief closing statements to his attorney’s office, who in turn sent it to the Council the very next day, without any delays. In essence he stated the following:
41. He should be reinstated because the charges/sanction imposed on him was unreasonable and irrelevant. The Respondent had a personal vendetta against him, and they wanted to dismiss him so that there could be a vacant post for their family and friends. He should have been exempted from his duties because he was implicated in a crime. The instruction that led to his dismissal put his life and career at risk therefore it was unreasonable. The chairperson of the disciplinary hearing was bias and manipulative. There was no harm to anyone as the learners continued to receive their report cards. The Respondent is responsible for the delays and it was an abuse of power on their part. Not only must he be reinstated but his contract must be back dated to 2006
ANALYSIS OF EVIDENCE AND ARGUMENT
42. The dismissal of the Applicant is not in dispute.
43. The Applicant disputed the substantive and procedural fairness of the dismissal, and the Respondent has the duty to prove the fairness thereof.
44. I will commence with the procedural aspect. The Applicant argued that Mabaso, the Respondent’s witness who was also the presiding officer of the internal disciplinary hearing, was biased. He did not say how so except to state that his representative were not allowed to represent him. This is not true and the Applicant himself did not challenge Mabaso on this point when cross examining him, Mabaso stated that there were several postponements occasioned by the Applicant’s and his representative’s unavailability. The hearings were rescheduled several times to accommodate them. The Applicant wanted legal representation, he was told how to go about doing so, and he elected to abandon that pursuit. He was initially represented by SADTU and later on by another union. The presiding officer accommodated all of this. Secondly the Applicant’s belief that his witnesses were not allowed is also not true. From the disciplinary hearing outcome it is clear that the Respondent’s representative at the internal hearing stated clearly that they are not disputing the fact that there were report cards with fake signatures, the Applicant had stated that was going to be the evidence of his witnesses. If the other side said they would not be contesting that evidence then there is no reason why such witnesses should be called.
45. Despite the fact that I granted the Applicant adequate time to prepare for cross-examination and in addition to that asked him if he had any other questions to ask the witnesses after his representative had cross-examined them, demonstrates that the Applicant was afforded enough time to put a version or ask whatever questions he had to the witnesses. He chose not to do so. Failure on his part is clearly by design and not at all unfortunate.
46. I therefore find that there was no procedural irregularity in dismissing the Applicant.
47. I now deal with the substantive part of the Applicant’s dismissal. The Applicant was dismissed for failure to obey a lawful and reasonable instruction. The instruction was that he signs the report cards as part of his duties. The Applicant does not at all dispute that such is indeed part of his duties.
48. He conceded that the incident that led to his refusal to sign the report cards occurred in 2012. Briefly, it was discovered that someone had forged his signature and signed a fraudulent report card. This was discovered when the bogus learner applied to a Nursing school/college. Upon verification of the results it became clear that there were fraudulent activities. Be that as it may, the Applicant along with all his colleagues were still expected to sign the school report cards of leaners. It was only about three years later that the Applicant stopped signing. He himself conceded that there were several interventions. He in fact did not dispute Kati’s (the school principal) testimony.
49. Kati was clear, concise and he provided full information and sequence of events as they unfolded. The Applicant accused him of protecting the culprits but he, the Applicant, failed to provide the names of the culprits or at the very least sound evidence to suggest that Kati knew who the culprits were.
50. Applicant said he felt that forcing him to sign report cards was akin to coercing him to engage in criminal activities which could put his life and career at risk. Yet he failed to provide detail in this regard or at the very least report Kati to his superiors or report the matter to the police. The Applicant was confused and difficult to follow. For just over two years after it was discovered that his signature was forged he continued as normal to sign the school report cards and then suddenly stopped on the third year demanding that Kati provide him with the investigation outcome. He then accused the Respondent of incompetency and lack of ethical leadership. How so? In what way is the principal incompetent if the culprit who forged signatures could not be found out?
51. Providing the stakeholders, parents with complete learners’ report cards is a legislative requirement. The Applicant knew that, he said so himself. It is not clear then where did he get the idea that he could suddenly stop/refuse and make demands on his superior.
52. The Applicant also argued that he was victimized by Kati yet that version was never presented to Kati under cross-examination. He also wrote in his closing arguments that his date of appointment should be backdated to 2006. I have no authority to do so even if I found in his favour.
53. The Applicant further made serious allegations, during his testimony he said that he was dismissed so that the school could make a profit at his expense i.e his salary. In his closing arguments he stated that he was dismissed so that the officials could hire their friends and relatives in the post he vacated. Such allegations are serious, however, the Applicant did not provide me with any solid evidence in that regard.
54. The Applicant argued that dismissal was inappropriate and too harsh yet he did not dispute Mabaso’s testimony that at the internal hearing he specifically asked the Applicant if he would comply with instruction to sign the report cards if he were to be given another opportunity. Mabaso said the Applicant said no. What then could have been an appropriate sanction for an educator who had clearly stated that he would not comply with a reasonable and lawful instruction? Despite efforts to make him see the error of his ways, the Applicant refused to see reason.
55. There is absolutely nothing that the Applicant has presented before me to show that he was unfairly treated and that his dismissal was inappropriate.
56. Based on the above, I therefore find that the Respondent did discharge the onus of proving both substantive and procedural fairness.
57. As a side issue, the Applicant demonstrated knowledge of the law, however he struggled with its proper application despite my numerous intervention he was adamant that his way is the right way. He also showed total disrespect of those in authority. It is my observation and belief that he can still change and focus on the positive side. He is generally knowledgeable but he needs to change his approach and outlook to life. The potential in him is without limits and he can still make a positive contribution to the education system at large.
FINDING
58. I therefore find that the dismissal of the Applicant was both substantively and procedurally fair.
AWARD
I make the following award:-
59. The application is dismissed.
VUYOKAZI NGWENYA
Arbitrator 03 March 2022
PSES262-18/19