ELRC 1101-19/20 KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT PIETERMARITZBURG
CASE NO.: ELRC 1101-19/20 KZN
IN THE MATTER BETWEEN: -
KHUMALO PS APPLICANT

AND

DEPARTMENT OF EDUCATION - KZN RESPONDENT


ARBITRATOR : P. JAIRAJH

DATE OF AWARD : 13 MAY 2022


Applicant’s representative : MR Z.S. ZIKHALI
Telephone :
Fax :
Email :

Respondent’s representative : MR T.M. MCHUNU
Telephone :
Fax :
Email :


DETAILS OF HEARING AND REPRESENTATION
[1] This arbitration hearing commenced on 1 October 2020 and was set down several times and protracted due to delays, inter alia relating to breaks in transmission during the virtual hearing, the commissioner having to enquire as to the true dispute in this matter, postponement due to the applicant being handed voluminous bundles on the morning of the hearing, application to expunge the evidence of the applicant’s witness, interposing of witnesses due to the unavailability of applicant’s and respondent’s witness, the unfortunate passing of the respondent’s witness and non-attendance of the interpreter. The hearing proceeded on 15 February 2021, 26 April 2021, 9 June 2021, 9 July 2021, 20 October 2021, 13 December 2021 and 24 March 2022.
[2] The applicant was represented by Mr Z.S. Zikhali, an attorney from Zandile Msane Attorneys and the respondent was represented by Mr T.M. Mchunu from Labour Relations.
[3] The proceedings were conducted in English and recorded electronically. The parties, at the conclusion of proceedings, elected to submit written closing arguments on or before the 4 April 2022. The commissioner applied for an extension to submit the award due to encountering problems with electricity disruptions due to damages caused by flooding, and a further extension due to her being unwell, which extension was duly granted.
ISSUE TO BE DECIDED
[4] I have to determine whether the respondent committed an unfair labour practice related to demotion, and if so, the appropriate relief.
BACKGROUND TO THE DISPUTE
[5] The applicant was employed as the Principal of Bajabulile Primary School (also referred to as “the School”). He was charged with misconduct, found guilty on four of the six charges that was preferred against him and he was sanctioned to demotion from the rank of Principal to Post Level 2 (HOD). He appealed the outcome of the disciplinary hearing on 30 October 2017 and received the dismissal of his appeal on 18 March 2020.
SUMMARY OF EVIDENCE AND ARGUMENTS
DOCUMENTARY
[6] The respondent’s bundles were marked as “A”, “B”, “C” and “E” and the applicant’s bundle was marked as “D”.
APPLICANT’S CASE
PATRICK SIBUSISO KHUMALO
The salient points are recorded below: -
[7] He has been an educator since 1996 and was appointed as Principal at Bajabulile Primary School in 2008.
[8] In 2015, he informed the Electoral Commissioner and thereafter the Circuit Manager, Mr. M.L. Mthembu (hereinafter referred to as “Mthembu”) that Mr. S. Ncube was elected as an SGB member although he did not have children at the school. They did not assist him, but they responded to a letter written by the former SGB chairperson, pertaining to the same issue.
[9] He wrote a letter to Adv. M.B. Masuku, the HOD at the time, complaining about the 2015 SGB elections and other things pertaining to the SGB, but he did not get a response.
[10] In terms of the Financial Report for January 2014/December 2014, the school monies were reported, detailed, audited and submitted to the Department.
[11] At a meeting in November 2015, the Circuit Managers, Mr. Dube (hereinafter referred to as “Dube”) and Mr. Mabaso were present when as per the Logbook entry , the finance file was taken out of the school and given to the new SGB who kept it in their homes.
[12] He pleaded not guilty to all the charges but was found guilty on charge 1, 2, 3 and 6.
[13] In respect of Charge 1, Count 1, the period of January 2014 to December 2014 was audited, compliance forms were checked by all the circuit managers, handed over to the province and was passed.
[14] In respect of Charge 1, Count 2, until December 2014, the SGB was functioning and there were controls which was evidenced by the auditor's report.
[15] Referring to Charge 2, Count 1 , he averred that he did things correctly in 2014, there was an audit report, compliance forms and the Department deposited money into the school account. However, for the period January 2015 to December 2015, the finance file had been taken away from him and was in the control of the parents, which is why there was no audit report in 2015. An investigation was done in 2016 and it was recorded that there were no specimen signatures and distribution register, however the finance file had been taken away from him in November 2015.
[16] In respect of Charge 3, he stated that the cheques were written in his name but was not signed by him. These cheques were cashed because he was sent by the SGB to perform certain duties. The charge refers to all cheques for 2014 to 2015 however, he was no longer in control during 2015.
[17] In respect of Charge 6, when the new SGB took over, the treasurer resigned but was still a signatory at the bank. The SGB requested that they continue using this teacher in order to pay for the school expenses and he had no power over that.
[18] His hearing was held in May 2017, he received the outcome of the Disciplinary Hearing in October 2017, thereafter he lodged an appeal with the MEC and received a response in March 2020, but the Department never explained the reason for the delay.
[19] The investigator, Mr. Shabalala (hereinafter referred to as “Shabalala”) came with a form to indicate that he required the 2014 files, but those files had been brought back to school by the deputy principal who is now the acting principal, Mr. Madondo (hereinafter referred to as “Madondo”), without his knowledge and those files had been stripped.
[20] He did not have a good working relationship with Madondo, as he did things without his knowledge. Although, he was the school principal, Madondo was communicating with the 2015 SGB and conducting meetings in the school in his presence. The Circuit Managers were using Madondo to request the teachers to write things which he took back to the circuit managers and to the court. A teacher had opened a case against him and had testified that he was sent by Madondo to harass him.
Under cross-examination, he testified that:
[21] He confirmed that he was not an aggrieved party, but he wanted the Department to respond to him as the principal of a school.
[22] He emailed and faxed his letter to the HOD, and it was an omission by him that the proof of service was not in the bundle.
[23] The old SGB was still in control from January 2015 until March 2015. After the SGB elections was conducted in March 2015, there was an appeal. After the appeal, the new SGB took over, and gave Madondo the authority to take control over the finances and the cheque book.
[24] When asked to refer to legislation which declares that the SGB could remove the principal from the SGB, he stated that it was not in the Act, but they could remove the principal from the SGB and replace with someone else, which is what the SGB did internally.
[25] When questioned as to what steps he took to challenge something that was totally against the policies of the Department, he stated that he wrote a letter on 29 June 2016, and informed the circuit managers and the Department.
[26] When asked to point out where he had written that he was removed from the SGB by the SGB, he conceded that it was not in the letter. He averred that the letter talks about work done behind his back and he was responding as to why he should not be suspended.
[27] When questioned if he never sought any assistance from the Department and only responded to the letter by the HOD pertaining to his suspension from his duties. He stated that he had asked for assistance in the letters that he wrote to the Department and in the meeting with the two circuit managers in November 2015, where he told them that work was done behind his back and that is why they took away the whole file in November 2015.
[28] It was put to him that he had initially testified that the meeting was to remove the finance file from the school, and he never testified that the meeting was to address his concerns pertaining to the SGB, but he now said that the meeting was as a result of his letter to the circuit manager, wherein he sought assistance. He stated that the meeting started with the removal of a file and in that meeting he informed them of all the problems.
[29] When he was referred to the Notice to effect Precautionary Suspension from duty and was asked if his letter dated 29 June 2016 was in response to this Suspension letter, he stated that he was explaining the school’s situation. It was further put to him that there was no indication in his letter that he was seeking assistance from the Department, he stated that he wrote the letter because he needed support, as the principal has to be supported by the Department.
[30] When questioned if it was not the principal who was supposed to prepare the voters roll, he stated that the principal must not be involved and the committee that works in conjunction with the electoral officer prepares the voters’ roll. The principal must only be involved when he/she would be the presiding officer.
[31] On further cross-examination, he was referred to the South African Schools Act and it was put to him that he had testified that he had nothing to do with the voters’ roll, he stated that he had prepared the voters’ roll using the admission book and he confirmed that the electoral officer received the voters’ roll from him. When questioned if the election was conducted as per the voters’ roll that he had prepared, he stated that he will never know because he was not inside.
[32] He had advised the 2014 SGB, they prepared the budget in 2014, it was presented and adopted at the parents meeting, and it was noted in the Minutes.
[33] It was put to him that there was no budget for 2015 except for a draft which was never presented to the parents or adopted and further the proposed agenda simply indicates that they only conducted a meeting on 3 June 2015, and there was nothing in the Minutes pertaining to the adoption of the budget, he maintained that this was the 2015 Budget and that there were no words indicating that it was a draft.
[34] When probed as to where were the Minutes pertaining to the presentation, approval, and adoption of the 2015 budget and it was further put to him that the budget was not signed hence it was not approved thus it remains a draft. He stated that the proposed agenda speaks about budget review, which means that there was a budget, it was signed, it had minutes, and this was a printed copy from the computer. He averred that the signed budget was in the file that was taken away during November 2015.
[35] At the beginning of 2015, the 2014 SGB was signing the cheques. The 2015 SGB only started signing cheques in June 2015, due to there being a dispute.
[36] When asked if this dispute stopped him from performing his duties to ensure that there was specimen of signatures so that the newly elected SGB could commence signing cheques, he stated it was done at the beginning of May 2015.
[37] He denied that he told Shabalala that the specimen of signatures was not done and further averred that it was in the 2015 file.
[38] He denied that he had abdicated his duties when he indicated that he had nothing to do with the SGB elections and that some meetings took place without his presence, however he conceded that he did not attend some of the meetings but averred that it was because he was not invited to them.
[39] When it was put to him that he had testified that Madondo had received a letter appointing him as the finance officer, but Madondo would deny receiving that letter, he averred that according to his knowledge, Madondo was performing the duties as the finance officer, and he had received that letter which left with the file in 2015.
[40] It was put to him that the investigation was covering the period January 2014 to December 2015 and Shabalala would testify that during an interview with the applicant, he requested the cash book, deposit book, receipt book, distribution register, income and expenditure book, petty cash file and bank statements and the applicant indicated to him that the school did not have these documents. He stated that the school did not give Shabalala the documents because the file had been taken away in November 2015.
[41] When it was put to him that he handed over a file with transactions but the deposit book, receipt book, petty cash book and a distribution register book were thick books which could not be placed in a transaction file, he stated that all these were taken out the school.
[42] He agreed that Dr ZND Zungu was not an auditor but a bookkeeper who had only prepared a report and the Annual Financial Statements was not an audit report.
[43] The original encashed cheques was not provided to Shabalala. In 2014, the payment advice was used.
[44] When it was put to him that the payment advise was not used and the few that were used was full of discrepancies and it was only done in 2015 and not in 2014. He stated that they used it in 2014 and prior to 2014.
[45] When referred to Charge 3 , he stated that for the 2014 to 2015 period, the SGB wrote the cheques and requested him to cash it at the bank but before it was cashed the bank would call the signatories.
[46] When asked how he accounted for the cheques in his name on how the money was spent, he stated that every cheque had the receipt and payment advice attached to it, which would be filed together, which was in the file for 2014 and 2015, and that is what the bookkeeper used and what the department had accepted.
[47] It was put to him that he was appointed as the Petty Cash Officer and cheques in the amount of R17,800 was issued in his name for which he was responsible but there were no vouchers. He stated that the same procedure was used for the petty cash cheques.
[48] He disputed when it was put to him that Shabalala would testify that there was no petty cash file, no explanation whether the petty cash had gone missing and further the cheque counterfoil had not been properly completed. He further disputed that there was no salary register for all SGB employees and that the stock register was not used.
[49] The school was purchasing uniforms from different companies. He was not sure for how many years the SGB was buying uniforms from Golden Dice Investment CC (hereinafter referred to “Golden Dice”). According to him it was normal for the school to purchase from Golden Dice for more than two years. He maintained that supply chain processes were followed and further stated that there was a reason to buy from that company.
[50] The churches deposited their rental of R350 into the school bank account and paid R350 for the use of the Hall, however the proof of payment was not presented to him. The churches gave the deposit slips to the finance officer and the treasurer which he saw at the finance meetings.
[51] It was put to him that Mr. S.N. Mangazi (hereinafter referred to as “Mangazi”) was staying in the cottage since 2012, and he failed to produce proof of payment of his rental in the amount of R350. He averred that many people were staying in the cottage, and he did not know their arrangement. According to his knowledge Mr. Ngobese had left a long time ago and he was not sure what happened to Mr. Dubazana. In terms of his knowledge the tenants paid their rent because it was never discussed in the finance meetings that the tenants were not paying rent.
[52] He did not dispute that Ms. Mtshali (hereinafter referred to as “Mtshali”) was last elected in 2009 and that she continued signing cheques in 2014 and 2015 while she was not a member of the SGB. He agreed that in terms of the departmental procedures, only SGB members could sign school cheques.
[53] When referred to charge 6, he averred that Mtshali was asked by the SGB to sign because one member of the SGB was no longer there, and she was still a signatory.
SAMUEL NKOSINATHI MANGAZI
The salient points are recorded below: -
[54] He was an SGB member, representing the educators at Bajabulile Primary School from 2012 to 2015. The SGB was functioning according to the rules and regulations that they had set for themselves.
[55] Ms. Masondo was the finance officer from 2012 to 2015.
[56] SGB meetings were held once per term. There was a good relationship between the applicant and SGB. Sometimes, the applicant would point out that what they were discussing was outside the policy.
[57] During that time, the applicant was not a signatory for cheques. They would meet as the Finance Committee and agree on payments.
[58] He thought that a clerk was the finance officer who was handling the day-to-day school finances.
[59] The SGB Chairperson, Dube was responsible for the purchase of the school uniforms. They would go to companies and request for quotations, but he could not recall who was involved in obtaining the quotations.
[60] The applicant and Madondo worked together but sometimes one could see that they were not working as a team.
[61] The SGB was responsible for the school cottages. The rent for those cottages was deposited into the school bank account by the tenants.
[62] The applicant was never involved in the collection of rent for the cottage and the churches. At the SGB meetings they discussed the issue of the rentals pertaining to the churches and the cottage.
[63] He did not remember if the tenants presented any proof that they had indeed paid their rent as he was not part of the finance committee meetings which is where the confirmation of the rental monies should have been presented.
Under cross-examination, he testified that:
[64] He could remember if he received training from the applicant. He thought that the SGB was abiding by the Rules in terms of the South African School’s Act.
[65] He did not know if Miss Masondo was appointed in writing, but she was chosen as a finance officer at a SGB meeting.
[66] When questioned about the budgeted amount for staff requirements, he stated he did not know when it came to money.
[67] It was put to him that he could not budget without amounts and when a budget is submitted, amounts should be included, he stated that because of the time that had passed it, was not easy to recall the amounts.
[68] He confirmed that he was staying at the school cottage but did not remember signing a lease agreement. He paid R250 in rent which he deposited at the bank.
[69] When it was put to him that he had actually lied when he said that he had no idea whether there was proof of payment that this money was deposited, he stated that he could not agree nor disagree because there had always been meetings with the finance committee and the money was deposited but he would not know if they had proof in their books that the money was indeed deposited.
[70] He told Shabalala that he did not have proof of payment and Shabalala did not tell him to produce the proof of payment once he found it.
[71] When questioned if rent of R250 was a fair price for a fully furnished three-bedroom house with a kitchen and bathroom, he stated that they were sharing the house and the rent was for a room. The rent of R750 was something that was discussed by the SGB.
[72] When referred to the Investigation Report where the SGB Minutes dated 22 November 2016, recorded that the school cottage tenants were not paying rent together with the details of the tenants and was asked if these matters were discussed with the entire SGB or the finance committee, he stated that he was no longer a member of the SGB in 2016. He conceded that he was given a chance to produce the proof of payment to Shabalala.
[73] When it was put to him that a witness had testified that the tenants were not paying hence there are no records in the school bank account, he stated that he did not know about that but could not say that the witness was lying.
[74] When it was put to him that he did not pay the rent for January 2015 and February 2015 hence he failed to produce proof of payment, he chose not to comment.
[75] When referred to cheque number 2700 made out to Golden Dice in the amount of R10,000, dated 25 August 2014, he stated that as the educator’s representative, he was never part of any dealings concerning cheques.
[76] It was put to him that when this cheque was signed, there was no voucher, quotation, invoice or supporting documents and was asked if there was any motivation presented regarding this company, he stated that he did not remember this company.
[77] It was put to him that certain cheques were signed without the knowledge of the SGB members, he stated that he did not know Golden Dice, but it may have been discussed and they agreed to pay them.
[78] When it was put to him that it seemed as if he had no idea of a number of things that were happening in the SGB, he stated that he was an active participating member of the SGB.
[79] He was referred to cheque number 2783 in the amount of R11 091,06 made out to Golden Dice where it clearly indicated that there was no voucher attached and no payment advice approved by the principal in terms of the departmental policies, he stated that he did not remember the cheque because he was not part of the finance committee.
[80] It was put to him that Golden Dice was paid more than 5 times in a year from the school account, and it was clear from the report that it was not indicated what these payments were for as there were no supporting documents , he stated he remembered the purchasing of the uniform but could not recall the name of the company.
[81] Under further cross-examination he stated that he was part of the buying process. The SGB members would get quotations from the factories, would then sit, discuss, and agree to appoint a certain company.
[82] He was referred to cheque number 28235-9 , which was made out to him in the amount of R994.50 but which had no payment advice, voucher or invoice supporting the cheque, he stated that he was the chair of the Culture committee, and this specific cheque was cashed at the bank to cover the cost of food and transport of the learners when they went to perform at Eshowe.
[83] He had been staying in the cottage since 2012 and he confirmed that there was no lease agreement. He confirmed that an arrangement had been made at that time between himself, the applicant and the SGB. He did not remember if the applicant had advised the SGB that there must be a lease agreement in place.
RESPONDENT’S CASE
NICOLAS MADODA SHABALALA
The salient points of are recorded below: -
[84] He was employed by the Department of Education as a Deputy Director: Internal control and was appointed to conduct an investigation at Bajabulile Primary School whereafter he complied his Report.
[85] He had forwarded a document to the school requesting for the financial documents. They indicated that they had the School Fund Regulation No. 47 of 1998 (Red Book), Receipt book, Cheque book, Bank statement, Asset Register, Attendance Register, Leave register, Payment Advice file, Annual Financial Statement File but did not have the Income Cash Book, Expenditure Cash Book, Deposit book, Monthly Reconciliation File, Petty Cash File, Value Form Distribution Register, Stocktaking Certificate – School Fund Items and the Statement of Outstanding Debts.
[86] He referred to Internal Audit and Risk Management Directorate Questionnaire, which the applicant completed and signed. The relevancy of the remark’s column was to indicate if someone from Head Office had collected any documents and the reason for collection. If it was indicated that the document was not there and there were no remarks provided, he concluded that it did not exist. He would question the person and if they said that they did not have the documents, he will not bother anyone if they did not the documents.
[87] Section 3.2 and 3.9 of the School Fund Departmental Instructions, states that the finance committee shall authorize all expenditure incurred in accordance with the approved budget, such expenditure to be ratified by the SGB and that they perform the internal checking function. Section 14 of the School Fund Departmental Instructions states that the finance committee shall submit a quarterly report on the financial affairs of the school to the SGB.
[88] The financial investigation conducted at the School revealed that the Finance Committee held its first meeting on 3 June 2015 at 14H00 but minutes of the meeting was signed on 21 February 2016 and there was no evidence of any other finance committee meeting that was held to discuss financial matters. There was no record of the quarterly reports on the school’s financial affairs, found in the minutes of the Finance Committee.
[89] When perusing minutes of the Finance Committee there was no evidence that proved that the committee had authorized all expenditure incurred in accordance with the approved budget. He concluded that the SGB lacked control in management of its finances as it had not demanded quarterly reports on the financial affairs of the school from the Finance Committee.
[90] An interview with the applicant revealed that there were no specimen signatures maintained for appropriate officials as per authorized delegation of authority. The SGB lacked the means to detect fraud.
[91] An interview with the applicant revealed that the school had no distribution register of receipt books. He concluded that it would be difficult to determine who was in possession of the receipt book if it was not recorded in the distribution register. There would be a possibility of financial loss if it was not known who was collecting school funds. Reporting on school monies collected would be misstated if all receipt books used to collect the funds could not be accounted for.
[92] Paragraph 6.3.2 of the School Fund Departmental Instructions states that the duties of officer/s responsible for the collection and receipt of school fund monies must be assigned to them in writing by the SBG. Their investigation revealed that the official responsible for collecting monies at school was not appointed in writing to perform this function. They concluded that an official responsible for collection of funds may deny having collected such funds, thus compromising accountability. The applicant should have advised the SGB correctly regarding the written appointment of the official collecting the school funds.
[93] Paragraph 6.5.1 of the School Fund Departmental Instructions states that monies received by the school must be acknowledged immediately by the issuing of a receipt for the amount received in respect of each individual payment, on a receipt form, by an officer responsible for the issuing of receipts. Section 6.5.4(v) states that the date of issue is recorded in the space provided. Section 6.5.5(iii) states that the original of the cancelled receipt form must not under any circumstances be removed from the receipt book. Section 6.5.4(xi) states that in instances where carbon paper has not been used and the original has been handed over to the payer, the original is to be recovered before a fresh receipt is issued.
[94] He had listed all the Receipts where he found that there was no date of issue, receipts were cancelled, and the original receipts were not attached. These were finance control measures, and it was important to link the money paid and deposited, which must correspond with the income cash book. The originals cannot be removed if it was cancelled as it leaves a loophole for fraud. He recorded on the Grade tables the amounts appearing on the receipt books, but he encountered limitation of scope because the income cash book and deposit books were not made available.
[95] The Register to record direct deposit was not used. For security reasons most schools required parents to make direct deposits at the bank due to fraud and armed robbery at schools but for control measures there had to be a register to record the direct deposits. When enquiring from the applicant regarding the register wherein all details from direct deposits of school funds are recorded, the applicant informed him that the school did not have a Direct Deposit Register. He concluded that in the absence of the register there was a lack of control.
[96] Paragraph 6.11.2 of the School Fund Departmental Instructions states that for control purposes, the use of a bank deposit book is recommended. Their financial investigation revealed that the deposit book was not used to deposit monies collected at the School.
[97] The Bank statements were not received from the applicant. When perusing the documents of the School, it was discovered that not all bank statements were found among sets received hence they had to request copies from the bank. The bank statements listed were copies requested from the bank as original bank statements could not be provided. He found that the applicant did not perform his duty in the safe keeping of all the records.
[98] Original encashed cheques were not received from the applicant. During their investigation, the original cheques for cheque numbers listed were not found among documents received from the School and as a result the bank was requested to provide copies. There was no evidence that follow up enquiries were initiated regarding the unreturned encashed cheques. Failure to give encashed cheques by the applicant limited the scope of the investigation.
[99] The few payment advices which were used when processing payments were full of discrepancies. Section 6.19.6 of the School Fund Departmental Instructions states that when it is ascertained that a payment forms a proper charge against school funds, a payment advice reflecting the name of the person to whom payment is to be made, the amount to be paid, the nature of the goods supplied or services rendered and the purpose for which goods were purchased or services required, must be completed and forwarded to the principal for approval.
[100] Section 6.19.7 of the School Fund Departmental Instructions states that supporting vouchers or the relevant certificate must be attached to the payment advice. Section 6.19.8 of the School Fund Departmental Instructions states that once approval has been obtained, a cheque must be prepared, and the cheque number and date entered on the payment advice. According to the rules of department, the principal is the head of a school, who guides and advises the SGB and knows what the school needs, that is why the approval from him or her is so important. Before the principal approves, he/she must check that all the documents are there. At least three quotations are required which must be attached to the payment advice, including the invoice amount to be paid. He found that the payment advice was not used, and he listed all the cheques where the payment advice was not used.
[101] Section 6.19.4 (ii) and 6.19.7 of the School Fund Departmental Instructions states that the payment must be supported by the relevant voucher, and the supporting voucher or relevant certificate must be attached to the payment advice. He found that the supporting documents were not attached.
[102] Section 6.13.1 of the School Fund Departmental instructions states that the Governing Body may authorize the principal to keep an amount of petty cash. Section 6.13.5(ii) states that the Officer entrusted with the keeping of petty cash must maintain a Petty Cash Book and record therein, all amounts received as well as payments made. He was told that there was no petty cash file.
[103] The finance committee proposed that Ms. ZN Nkosi be appointed as Petty Cash Officer. It was a proposition but was not forwarded to the meeting of the SGB. In fact, by law, the cheque for petty cash is officially issued in the name of the principal. He referred to the list of cheques and stated that all these cheques were issued to the applicant for petty cash.
[104] The petty cash file is important in terms of accountability and for corporate processes as all the receipts must be attached to the payment advice for petty cash and then reconciled whereafter one can request for further petty cash. Unfortunately, in this regard he could not say what amount of petty cash was authorized to the applicant by the SGB.
[105] It is improper not to have a petty cash file as it is for the principal’s own security because the cheque is issued in his name and at the end of the day the principal must account. The applicant cannot as the Head of the Institution, delegate accountability. If you cannot account as to how the money was utilized in terms of receipts, you are to be blamed which means you must pay it back. The applicant failed to provide the petty cash file.
[106] In terms of paragraph 6.20.1 (xi) of the School Fund Departmental Instructions, the cheque counterfoil must be completed with exactly the same details that appear on the face of the cheque. This assists to ascertain for what and to whom the cheque was paid, for budget purposes and to prevent double payments. Their audit revealed that the information appearing on the cheque counterfoils was not the same as on the returned cheques. It was found that some of the cheque counterfoils were blank and at times the information was not fully completed or written, for example a payee, dates, and amounts. The purpose of payment or reason was stated on cheque counterfoils but not on payment advices’ since they were not used at school. He listed all the cheque counterfoils that were not fully completed with the details as it appeared on cheques issued. In this regard the applicant did not comply with the prescripts of the Department of Education in terms accountability as the accounting officer of the school.
[107] In terms of section 16.6 of the School Fund Departmental Instructions, the rate payable per kilometer must be determined by the SGB. Paragraph 14 of the Minutes of Finance Committee meeting held on 3 June 2015 revealed that the Finance Committee proposed standard tariffs to be used for claims when officials used their own transport to perform official duties. However, there was no evidence that the proposal was approved by the SGB. It was discovered that there were a lot of transport payments made by school with no relevant supporting documents. The transport register to keep records and to control all claims for transport payments was not available. It was also found that the Claim Form for Transport was not used, as a result the information pertaining to transport payments was only found on cheque counterfoils.
[108] Referring to his report pertaining to payments without invoices or supporting vouches , he stated that there were many instances where there were payments for different things in one cheque that was issued to the applicant, (R1000 for petty cash, R300 for transport, R200 was for airtime) which was very difficult to control and further there were no relevant supporting documents. The SGB should have held a meeting, proposed, and approved the amount per km that had to be paid to a person who used his/her car for official purposes. Ordinarily, it is the principal who grants the approval for the use of private transport for official trips. There must be a form which stipulates the mileage, rate per km and trip in km. This never happened and it goes back to the issue of accountability as the principal gives the instruction and authorizes as the Office of authority and if that authority is not utilized properly, the principal bears all the sins of his subordinates.
[109] There was no register received for salary payments for official/s not appointed on persal system of the Department of Education. The encashed cheques reflect ‘salary” but if one is paid a salary, that person must acknowledge with a signature that he/she received his/her cheque. The register would reflect details such as the cheque number, date issued, the payee, and the payee must acknowledge it in writing.
[110] The stock/asset register is to maintain and control all the items purchased by the school or given by the department. The principal will advise SGB to issue a circular explaining how the assets are to be maintained or controlled.
[111] Section 11.1 of School Fund Departmental Instructions states that the SGB is required to draw up the annual draft school budget of Income and Expenditure prior to the 4th quarter of each year for the ensuing year. This draft must be presented to a general meeting of parents for approval. The school must have a budget to function. The budget must estimate the income of the school (received from parents and the department) and the expenditure. Then the school must call the general meeting of parents and keep the record of all parents present. When they investigated, they found no evidence that the budget was ever presented to a general meeting. The Budget for 2014 academic year was not received. Referring to Annexure H , he stated that the Finance Committee had prepared a draft budget for 2015, which was not an approved document.
[112] According to KZN Department of Education Circular No.65 of 2005 read in conjunction with paragraph 1 of KwaZulu-Natal Department of Education – Responsibility of Paymaster document, it is clearly stated that the Paymaster and Relief Paymaster must be appointed in writing and that the Duty Sheet and Procedure Guide must be complied with in all respect. Furthermore, a payee or employee should sign against his/her name on the payroll irrespective of whether payment is done by cheque or deposited directly into the payee’s bank account. Paragraph 8.3.4 of the Treasury Regulations provides that for all employees, the person in charge at the respective pay-points must certify on the date of payment that all persons listed on the payroll report are entitled to payment. All persons who received salaries by cheque / electronically must sign on the payroll for receipt of their cheques / salary. The signing of payrolls is to avoid ghost employees. Their audit revealed the following: -
• There was no record found for the appointed of Paymaster and Relief paymaster.
• Payroll for July 2014 financial year could not be found among payroll received from the applicant.
• Payroll for July 2015, August 2015, September 2015, October 2015, November 2015, and December 2015 could not be found among payrolls received from the applicant.
• Educators appearing hereunder did not sign next to their names to acknowledge receipt of their salary payments. (Refer Annexure I)
[113] The Chairperson of the Finance Committee revealed that the school collected funds from parents to buy learner uniforms with the motive of raising funds after negotiating uniform prices with Suppliers. Firstly, when purchasing any item, there must be 3 quotations and secondly making parents pay a certain amount, with the motive of raising funds after negotiating uniform prices is irregular.
[114] The cheques were issued in the name of the applicant however there were no vouchers supporting the cheques issued, to prove that payments were necessary for school educational purposes, charges are according to the tariffs, contract or quotation and that payments were authorized and approved by the school governing structures. The total amount of cheques issued in the name of the applicant amounted to R40 923.00. There was no documentation or list of people that were refunded. Unfortunately, the whole blame rests with the applicant as the absence of documents results in serious predicaments.
[115] Section 36(i) of South African Schools Act states that a Governing Body of a public school must take reasonable measures within its means to supplement the resources supplied by the state in order to improve the quality of education provided by the school to all learners at the school. The school has a right by law to use its resources to add some money to its coffers but even then, it has to engage with the Governing body to decide on the rent and classrooms used. In a meeting held on 22 November 2016 with the SGB, it transpired that there were Church organizations, who were renting the school hall for their Sunday services and when the applicant was asked about the rent, he responded by saying that it was deposited into the school bank account. When checking the documents, no evidence of payment of rentals of the church organizations were found as there was no register wherein payments were recorded or minutes of the fundraising committee that were made available to them for scrutiny. Madondo mentioned that he was told by the church members that the rent was paid to the applicant. It is concluded that the church organization was renting the school hall for its Sunday services as it was confirmed by Madondo that rentals are paid to the applicant but there was no proof where money was deposited. The SGB had failed to check its financial documents and make the applicant account.
[116] In a meeting held on 22 November 2016 with the SGB, it was reported that the occupants of the school cottage were using school resources but were not paying rent to the school. An inspection was done on 28 November 2016, and it was confirmed that the three-bedroom cottage was occupied by people. According to Mangazi, who was one of the occupants, the cottage was also occupied by Mr. S. Ngobese who works for SAPS and Mr. T. Dubazane who is related to him. Mangazi said that he was allocated accommodation to the cottage by the applicant and had been living there since 2012. He said that the rent per month was R350.00 and it was deposited into the school bank account, but he failed to give evidence of the deposit slips. He denied that he signed a lease agreement with the applicant or SGB. Mr. T. Dubazane and Mr. S. Ngobese could not be traced as nobody knew their phone numbers.
[117] Referring to Annexure K , he stated that the SGB reported false information to Head of Department in the compliance certificate with intent to receive transfer and subsidy payments. The letters written by the SGB members, led to the investigation. Firstly, in terms of effective, efficient, transparent financial management and internal control systems to ensure internal controls, one cannot be the referee and player, secondly documents ensure that the controls are in place, thirdly the person who is the recipient of school funds must sign the receipt book and issue a receipt, which is recorded in the income cash book, and thereafter it is recorded in the deposit book.
[118] Based on his findings, he recommended that disciplinary action be instituted against the applicant.
OWEN SITHOLE
The salient points are recorded below: -
[119] He was elected as a member of the SGB during March 2015. They did not have a good relationship with the applicant as the applicant never accepted them as the SGB members. There was no handover process from the previous SGB and the applicant.
[120] The applicant told them that there was a dispute lodged pertaining to the previous SGB thus he could not work with them. When the SGB members approached Mthembu to enquire about this dispute, he informed them that he did not know anything about the dispute. They thereafter continued performing their SGB duties, but they never received any advice from the applicant.
[121] When the SGB was elected, they were unable make payments because they were told that there was a pending dispute, and they could not sign the cheques.
[122] The SGB was elected in March 2015 but was only able to perform their SGB duties in May 2015 when they had signing powers.
[123] When they were attending to the change of signatories, the applicant gave them incorrect information. He told them that one person from the old SGB had to sign, and Mtshali was that person. They then enquired from the circuit manager, Mr Biyela as to whether it was true that they needed to have an old SGB member as a signatory, and he responded in the negative, that is when they realized that the applicant had misled them.
[124] They informed Mr Shabalala that they only started signing the cheques in May 2015 yet there were cheques that were signed during the period of March 2015 to May 2015. They also informed Shabalala that the applicant had advised them that they needed to have one person as a signatory from the previous SGB, and he advised that that was not true.
[125] The SGB thereafter held a meeting and agreed to remove Mtshali. The applicant came to the meeting, was rude and then he left.
[126] They would call the meetings, the applicant would attend but would not participate, he would just sit, be busy on his phone or end up leaving. Whenever he was given the platform as the principal, he would be disrespectful towards them. In every meeting they had house rules for example, one cannot speak when another person is still talking, and they would request that the phones be put on silent, but the applicant would interject when a person was still talking, and his phone was never put on silent.
[127] During his tenure, the churches that used the school premises, paid rent. He used to receive the payment notifications on his phone. The tenants who were occupying the school cottages were not paying rent and in 2019 when they questioned the tenants, only then they started paying rent in September 2019.
[128] They never received any advice from the applicant pertaining to the tenants that were occupying the cottage and not paying rent, but they received advice from Madondo.
Under cross-examination he testified as follows: -
[129] He disputed that the applicant went out of his way to assist the SGB and that they did not want to work with him. If the applicant really wanted to work with them, he would have welcomed them from the beginning, but he refused for them to start work.
[130] When it was put to him that the applicant tried to assist the SGB in the execution of its duties but whenever he was assisting, he would go and liaise with the District or Circuit officials and not the applicant, he stated that the reason why they went to the circuit manager was because the applicant did not want to give them information. As the principal, he was supposed to guide them, but he failed to do so and was undermining them. Most of the information that they received was from the applicant’s superiors.
[131] He was referred to the Logbook and it was put to him that his signature also appears there. He explained that a handover should have been done but, in this instance, it was not done. The SGB was just handed documents because they went to the circuit manager who then instructed the applicant to give them the documents that they had requested.
[132] When it was put to him that in 2015, the applicant was removed from the school finances, he stated that before they were welcomed, the applicant was doing everything that involved finances by himself.
[133] When they were elected but before they had signing powers, the SGB noticed the misuse of finances. One day when he arrived at the school, he saw cow and goat skins and a celebration that was going on. They were worried about what was going on and decided to do their own investigation. They then found out that cheques had been signed by Mtshali who was not a member of the SGB.
[134] He denied that they had a budget meeting with the parents which was conducted by Ms Phakathi in September 2015.
[135] They went to Shabalala and explained that they had a problem regarding the school cheques that had been signed prior to them starting work thereafter an investigation was conducted.
[136] He only started seeing the rental money after he became a signatory for cheques, whereafter payments were reflected on his phone. He was able to see the rental from the two churches which reflected on his phone, but he never saw the rental for the school cottages until 2019.
[137] They had informed Shabalala that they were expecting rental from three venues. They then had a discussion that they would request proof of payment from the tenants, but they never received the proof from them.
[138] When it was put to him that Shabalala had testified that churches were not paying rent, but he was saying that the churches were paying rent, he stated that he was talking on behalf of his SGB and not the previous SGB as that was before his time.
[139] They had a special meeting with the parents in the second term of 2016 and thereafter planned the general meeting with the parents, and the applicant was present in those meetings.
[140] While they held the meetings, the applicant would just sit and slouch on the chair and be busy on his phone. When it was his turn to give them information or feedback on anything about the school, he would then say something for the sake of saying something.
[141] That led them to have a meeting with the parents and then the applicant showed his attitude towards them. The applicant told the parents that the SGB did not know anything, and he was not going to be told anything by the SGB. The applicant further mentioned that even his superiors did not know anything. When they gave the applicant a platform to speak in the meetings, he would speak anyhow and would not mention anything that they had agreed upon, and he would put them in a bad place with the parents. Even the parents could see that one could not work with the applicant because of the way he behaved.
[142] It was put to him that whenever the SGB wanted to call meetings, they would not involve the applicant but would involve Madondo, he stated that Madondo would be present as a member of the SGB, and the applicant would also be there but busy on his phone.
[143] When asked if they appointed Madondo as a finance officer, he stated that he and Madondo were signatories.
[144] It was put to him that he undermined the applicant at every turn and instead he preferred to work with Madondo and the circuit officials. He stated that the SGB had never undermined the applicant, but the applicant was the one who was undermining the SGB, the applicant would say that he was not going to be told by the ANC because they were the ANC.
[145] He disputed that the SGB was working with Madondo and other circuit officials to remove the applicant as the principal of the school.
ETHEL FREDA THANDIWE MTSHALI
The salient points of her evidence are recorded below: -
[146] She is employed as an educator at Bajabulile Primary School. During the period 2008 to 2011, she was elected as a member of the SGB, she had signing powers and she further continued to have signing powers until 2015 even though she was no longer a member of the SGB.
[147] She used to sign the cheques anywhere. Sometimes, the applicant would come to the class while she was teaching, sometimes during weekends to her home and if she was not there he would go to her partner’s place. There was a time in 2011 and 2012, when she was teaching at Umhlathuze Primary, the applicant would come to the school for her to sign cheques. There were no supporting documents and she confirmed that she signed blank cheques.
[148] She knew that she was no longer a member of the SGB and when she questioned the applicant about this, he told her that he was the principal of the school, he had spoken to the SGB, and they agreed that she must carry on signing. The educators would throw insults at her, saying that she was eating the school’s money. She went crying to the applicant, he would ask her why she was bothered by the insults because he was the principal of the school.
[149] She knew that it was wrong for her to sign the cheques as she was no longer a member of the SGB, but the applicant was the principal, he was the one making decisions and she had to comply with whatever he said.
[150] She asked that applicant several times to remove her signing powers as teachers were throwing insults and she also received phone calls, then she ended up reporting the matter to the SMT. The applicant always stood by the fact that he was the principal of the school, he was the one who makes the decisions, and his word was final.
[151] She had a normal working relationship with the applicant. The applicant’s mistreatment was in the manner in which he spoke, not only to her but all of them.
Under cross-examination she testified as follows: -
[152] When it was put to her that the applicant denies ever coming to her or her boyfriend’s place for her to sign cheques, she stated that she was not surprised because he knew that it was wrong for him to make her do duties of the school over the weekend.
[153] She knew it was wrong for her to sign the cheques, but the applicant had told her that the SGB had agreed that she must carry on signing because she was close by and further, she no longer sat on the meetings so if her employer told her that they had agreed, she had no choice but to comply.
[154] When questioned if the bank would call her to verify the cheques that she had signed, she stated that the bank would call her to confirm as to when she had commenced as a member of the SGB and sometimes to confirm whether she had signed a cheque.
[155] When questioned about her testimony that the applicant had made her sign blank cheques and asked what she had confirmed with the bank if she did not know what she had signed for, she stated that she meant that the cheques would have figures, but it would not have the name of the payee.
[156] It was put to her that she was not telling the truth because if she did not know the recipients of the cheques therefore how could she verify with the bank, she stated that the bank would not call all the time, and when they did call, it would be to confirm if she had signed a cheque, especially if it was a big amount.
[157] When it was put to her that the applicant did not have the power to change the signatories, she stated that he had the power because she knew that he could speak to the SGB to remove her as a signatory.
[158] She did not approach the SGB because the applicant had emphasized that they must follow protocol so she could not jump the applicant and report the matter to the SGB.
[159] She did not dispute that she had resigned in December 2011 and received a salary for January and February 2012 while she was not teaching. She agreed that the applicant had informed Mthembu that she was still receiving a salary, but further stated that it was because she informed the applicant that she was still getting paid.
SIPHO ERIC SIHLE MADONDO
The salient points of his evidence are recorded below: -
[160] He commenced employment at Bajabulile Primary School as the Deputy Principal in 2008 and is currently the Acting Principal at the school. In 2015, he was elected as the educator component in the SGB.
[161] He had a good working relationship with the applicant and never had a problem with him personally or in their working environment. The problem only started when the new SGB came into existence and there was a lot of tensions between the applicant and the SGB members. The applicant indicated that the parent component of the SGB was not legitimate, therefore he was not going to work with them as the previous SGB had lodged a dispute and he was waiting for the ward manager to attend to that before he could work with them.
[162] When the SGB requested a letter through the applicant, from the outgoing SGB, he was not able to provide proof that they had lodged a dispute. Then the parent component of the SGB approached Mthembu to indicate that they were unable to play their role at school because the applicant had informed them that they were not legitimate. Mthembu informed that them that they were legitimate and that they continue doing their work as the SGB members. This created some tension between the applicant and the SGB because they felt that he did not want to work with them.
[163] When the SGB held meetings, they would agree on rules as to how that meeting was going to be conducted. At one meeting, the SGB members indicated that all cell phones were to be put somewhere where it could be seen, and the applicant refused to do that. He indicated that his cell phone was his personal property, and he was not willing to do that, then he left the meeting which continued without him as crucial matters needed to be discussed. One of the issues was that the employees employed by the SGB had not been paid because they did not have access to the cheque book. A decision was taken to communicate with Mthembu to request the cheque book and discuss the handover from the previous SGB.
[164] The SGB received a new cheque book from the bank because the old cheque book had been used up by the previous SBG who had continued signing even though their period was over.
[165] When the new treasurer asked the applicant how to do certain things, she did not get that support and information until she went Mthembu for guidance.
[166] There were many instances where the SGB meetings would not end well, because when members requested for support and assistance from the applicant, they would get it.
[167] The SGB did not trust him as the teacher component, as they assumed that he would misguide them because they thought that he would take the applicant’s side.
[168] At some point the parent component raised the issue as to who was going to account for the cheques that were signed by the previous SGB. They questioned the applicant, but he could not remember how he responded because in some instances, he would be very emotional and very impatient.
[169] They then approached Mthembu for advice and guidance. In the next meeting, the SGB decided that the circuit or the district office should intervene by looking at the finances of the school before they take over. Mthembu then reported the matter to the district, whereafter Dube and another ward manager came to the school and asked for the file that contained the documents. They indicated that they would take the matter to the district so that an investigation could be carried out and they would hand over those files to the investigating officer. Thereafter, Shabalala came to the school and collected documents that he needed and then went to the circuit office to collect the files.
[170] The ward manager informed him that they would come to school with the applicant because they were looking for certain documents. When they opened the storeroom, the applicant could not find those documents that he indicated was at school.
[171] The treasurer had an apprehension that since she raised the issue of finances, some documents might disappear therefore she raised the issue of the removal of the files.
[172] Since he arrived at the school in 2008, he had never heard of the petty cash. He learnt about petty cash as an SGB member after they attended the workshops and from Shabalala, who after the investigation, gave them a workshop on the correct procedures and protocols to follow.
[173] When they came in as SGB members the specimen of signatures was not done, he only knew about the specimen of signatures after the workshop and when they told by Shabalala.
[174] There was no official appointment of the finance officer and there was no appointment letter for the custodian of the strong room.
[175] When he arrived in 2008, the cottages were occupied but the occupants subsequently left. In 2011, Mangazi and his two brothers started living in the cottage and currently Mangazi, his wife and his three brothers are living there.
[176] During the investigation, when Shabalala question Mangazi about the rent, he indicated that he was not paying anything as the applicant had brought him to live in that cottage.
[177] He was surprised to see an amount of R12 000 on the budget which appeared to be money that was coming from the cottage. He was shocked when Mangazi indicated that he was not paying anything.
[178] On 8 November 2016, when the SGB went to Mangazi to find out how much he was paying for rent and electricity, if he had a lease document and proof of payment, he confirmed that he was not paying as he was brought in by the applicant to stay in that cottage.
[179] Three churches were using the school on Sundays. One was paying via EFT and the others was paying cash. In 2017, when the applicant was not there, one of the pastors asked him for proof of payment for money that he had paid to the applicant, but he could not issue the proof of payment because he was not aware of that money. He told the pastor that he should have asked for a receipt when he paid the money and not come after 6 or 8 months for a receipt.
Under cross-examination he testified as follows: -
[180] He disputed that at the SGB meetings, the members were full of anger, worked against the applicant or that they wanted to remove the applicant and the security guard from the school because they had an issue with the suspension and disciplinary hearing of Mrs S.G. Buthelezi in 2012. He further stated that the SGB members did not know anything about their roles and responsibilities, had open arms and wanted to work with the applicant, that is why they kept on going to the applicant for information and guidance, which they did not get. In the matter of Mrs Buthelezi, the SGB was elected in 2015 and they did not know about this issue.
[181] The only special meeting he could recall was when the SGB members wanted to address the issue of accountability and responsibility pertaining to finances.
[182] When it was put to him that the SGB would liaise only with him and not the applicant, they would call special meetings at any time of the day and he was working very closely with them in respect of those special meetings in which correct procedures were not followed, he stated that the SGB chairperson would approach the applicant, they would discuss the issue together, then the applicant would release a circular, signed by him to call the teacher component to that meeting. Further, he could not recall attending any meeting without an invitation signed by the applicant because that circular would contain the principal's and chairperson’s signature.
[183] He denied that the SGB members would deliberately go to his office and bypass the applicant’s office to discuss the school matters with him and he further stated that he did not even have an office at the institution.
[184] When he was referred to a letter written by the applicant to the HOD regarding the conduct of the SGB, he stated that it was not true, the SGB never conducted a meeting with teachers and besmirched the applicant. Every time they wanted to understand something, they would approach the applicant first for assistance and if he did not assist them, then they would go to the ward manager. The SGB did not even trust the teacher component. Unfortunately, the applicant was the one who used to sing a song about this and that policy but when it came to implementing those policies, it would be a different story as they would be surprised that the action would be contrary to what the applicant had said. The SGB was new and did not know about policies and other things therefore it impossible to accuse them of policies that they did not even know existed.
[185] He denied that the applicant wanted to help the SGB in the execution of their functions and duties, or that they rejected his assistance and preferred liaising with the district office, because he was behind this. He further stated that the applicant knows that each time the SGB wanted to know something, they would first approach the applicant for assistance. After they tried to speak to the applicant, they would then request for assistance from outside therefore it was not true that they ignored him, or that they had bypassed him. In the SGB meetings they would indicate that they were not getting information from the applicant and the next person to approach was the ward manager.
[186] The SGB never asked him for any assistance therefore he was very surprised that the applicant accused him of being behind things.
[187] He denied that he had secret meetings with the SGB to overthrow the applicant. He did not even know the SGB members in the first place.
[188] He disputed that he had ambitions to be appointed as a principal of the school. He had a PhD so he could leave at any time and go to a tertiary institution for a better job.
[189] He agreed that he attended an interview for the post of principal at the School but that did not mean that he had to make the applicant’s life miserable so that he could get that position.
[190] When he arrived at the School, he had never heard of petty cash and had never seen a petty cash file or records. If they had petty cash, then there would have been no reason for him to use his money to buy things for the schools.
[191] Two files were taken to the circuit office which was later handed to the investigating officer. He denied that the cheque book was in the files that was taken by the circuit manager. Firstly, there was no reason for the SGB to request a new cheque book if the old one was still there, secondly, he was present and saw that the cheque book was not there and thirdly, that page does not specify the content of each file.
[192] He denied that he was in charge of the stock register at the School, and he further stated that he not given an asset register.
[193] He denied that he was part and parcel of those who were hell bent on working against the applicant and he colluded with the SGB to overthrow the applicant and further stated that he had no intention, interest, or reason to do that.
Under re-examination he testified as follows: -
[194] The applicant was his supervisor and if he had indeed misbehaved at school, he never received any charge or disciplinary action from the applicant.
ANALYSIS OF EVIDENCE AND ARGUMENT
[195] I have considered all the evidence and arguments of the parties and what follows is a summary relevant to the dispute at hand and does not reflect all the evidence and arguments considered in deciding this matter.
[196] The applicant contends that the respondent committed an unfair labour practice by demoting him from the post of Principal to Head of Department and seeks reinstatement to the post of Principal at Bajabulile Primary School, and compensation.
[197] In terms of the Labour Relations Act, General provisions for arbitration proceedings, section 138(1) reads as follows:
The commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly but must deal with the substantial merits of the dispute with the minimum of legal formalities.
[198] In terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995, Unfair Labour Practice means any unfair act or omission that arises between an employer and an employee involving-
(a) unfair conduct by the employer relating to the promotion, demotion,
probation [excluding disputes about dismissal for a reason relating to probation] or training of an employee or relating to the provision of benefits to an employee.
[199] In Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) the court held at par [79] “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 relevant circumstances.”
[200] During the arbitration hearing the commissioner had to enquire into the matter to determine the true dispute of the applicant and it was established that the applicant’s real dispute was an allegation of unfair labour practice related to demotion.
[201] The onus is on the applicant to show on a balance of probabilities that the employer’s conduct in demoting him was unfair.
[202] During or about the 22nd of May 2017 the Respondent served a notice of disciplinary hearing on the applicant. The charge/s in the notice referred to the following allegations: -
Charge 1:
In that during the period 2014 to 2015 and in that at or near Bajabulile Primary School you performed poorly or inadequately for reasons other than incapacity, by committing the following offences:
Count 1
You failed to advise the SGB regarding the duties of officers responsible for financial records.
Count 2
You failed to put proper control in the administration of the finances in school.
Count 3
You failed to put proper control in the administration of payroll. (Refer to Annexure I)
Count 4
You failed to assist the SGB in the execution of its duties.
Count 5
Failure to adhere to departmental regulations with regard to payments of employees employed by the SGB not by the Department. (Refer to Annexure F) You thereby contravened section 18(1) (l).
Charge 2:
You contravened Section 18(a) of the Employment of Educators Act in that you failed in your obligation to act in accordance with Section 16A of the South African School Act. You did not comply with Section 16(2)(a)(iv) and and/or 16(2)(f) and/or 16(2)(h) of SASA as amended in that you did not assist nor inform nor adequately advise the School Governing Body regarding implementation of policy and legislation with respect to school funds.
Count 1
For the period January 2014 to December 2015, there was no specimen of signatures.
Count 2
For the period January 2014 to December 2015, no distribution register proper records of monies received by the school were kept, namely no record of receipts of income.
Count 3
Failure to adhere to departmental regulations with regard to payments and/or issuing of cheques.
Charge 3:
You wilfully or negligently mismanaged the finances of Bajabulile Primary School in the period 2014 – 2015 as per Annexure E in your capacity of Principal of Bajabulile Primary School in that you failed to account for all cheques issued in your name by so doing you contravened section 18(1)(b).
Charge 4:
In that on or about 15 May 2015 at or near Bajabulile Primary School you committed misconduct when you furnished false information as per the compliance Certificate dated 15 May 2015 to Uthungulu District Office with the intention of receiving transfer and subsidy from the Department by so doing you contravened Section 18(1)(aa) of the Act. (Refer to Annexure K)
Charge 5:
In that on or about 06 September 2015 at or near Bajabulile Primary School while on duty you incited parents to un-procedural or unlawful conduct against the SGB by so doing you contravened Section 18(1)(s) of the Act.
Charge 6:
In that on or about period 2014 - 2015 at or near Bajabulile Primary School while on duty you conducted yourself in an improper, disgraceful, or unacceptable manner when you continued to use the educator who is no longer a member of the SGB to sign cheques by so doing you contravened Section 18(1)(q) of the Act.
[203] At the conclusion of the disciplinary hearing the applicant was handed down a sanction of demotion from the Post of Principal to Post Level 1 (HOD). The Presiding Officer at the Disciplinary Hearing found the applicant guilty of charges 1, 2, 3 and 6. The applicant appealed the finding and sanction however the MEC upheld the presiding officer’s decision.
[204] In terms of the Code of Good Practice in respect of Fair Procedure, normally the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision. If the employee is dismissed, the employee should be given the reason for the dismissal and reminded of any rights to refer the matter to a council with jurisdiction.
[205] In Avril Elizabeth Home for the Mentally Handicapped v CCMA & Others (2006) 27 ILJ 1644 (LC), the court held that “It follows that the conception of procedural fairness incorporated into the LRA is one that requires an investigation into any alleged misconduct by the employer, an opportunity by any employee against whom any allegation of misconduct is made, to respond after a reasonable period with the assistance of a representative, a decision by the employer, and notice of that decision.”
[206] The applicant contended that he appealed the outcome of his disciplinary hearing on or about 30 October 2017 but only received the outcome of his appeal on 18 March 2020 and further the employer never explained the delay.
[207] I note that the MEC’s letter pertaining to the Outcome of Appeal is dated 28 November 2019 which the applicant claims to have received on 18 March 2020. There was no reasonable explanation from the respondent as to why there was a delay in communicating the outcome to the applicant. However, having regard to Schedule 2, Item 9 of the Disciplinary Code for Educators, which states that the employer must immediately implement the decision of the Member of the Executive Council or the Minister, as the case may be, I cannot find that the delay was unreasonable or that deviation from it was unfair.
[208] The functions and responsibilities of the principal of public school is set out in Section 16A of the South African Schools Act No. 84 of 1996 (as amended), prescribes that the principal must inter alia: -
2(b) attend and participate in all meetings of the governing body;
2(c) provide the governing body with a report about the professional management relating to the public school;
2(f) inform the governing body about policy and legislation;
2(h) assist the governing body with the management of the school’s funds, which assistance must include—
(i) the provision of information relating to any conditions imposed or directions issued by the Minister, the Member of the Executive Council or the Head of Department in respect of all financial matters of the school contemplated in Chapter 4; and
(ii) the giving of advice to the governing body on the financial implications of decisions relating to the financial matters of the school;
2(i) take all reasonable steps to prevent any financial maladministration or mismanagement by any staff member or by the governing body of the school;
2(j) be a member of a finance committee or delegation of the governing body in order to manage any matter that has financial implications for the school; and
2(k) report any maladministration or mismanagement of financial matters to the governing body of the school and to the Head of Department.
[209] In County Fair Foods (Pty) Ltd v CCMA & others [1999] 11 BLLR 1117 (LAC) the court at par [11] stated “It remains part of our law that it lies in the first place within the province of the employer to set the standard of conduct to be observed by its employees and determine the sanction with which noncompliance with the standard will be visited, interference therewith is only justified in the case of unreasonableness and unfairness.”
[210] I have noted that the applicant failed to put his versions and challenge some of the versions of the respondent’s witnesses while they were on the stand.
[211] In ABSA Brokers (Pty) Ltd v Moshoana NO & others (2005) 10 BLLR 939 (LAC) the Labour Appeal Court noted that “A failure to cross-examine may, in general, imply an acceptance of the witness’s testimony.” By failing to cross-examine the witness on a specific aspect implies that the applicant cannot rely on this point.
[212] The applicant testified that he had nothing to do with voter’s roll but conceded under cross-examination that he was involved, and he had prepared the voter’s roll.
[213] The applicant conceded that Mtshali who was last elected in 2009 continued signing cheques in 2014 and 2015 yet she was not a member of the SGB, and he placed the blame of this on the SGB.
[214] The applicant testified that he did not know about the arrangement pertaining to Mangazi and the other tenants who were staying in the school cottage. However, his very own witness Mangazi, testified that he had been staying in the cottage since 2012 as there was an arrangement between himself, the applicant and the SGB.
[215] Mangazi was very evasive when questioned about his rental payments. He also conceded that he was given an opportunity by Shabalala to provide proof of payment of his rentals.
[216] This ties up with Madondo’s testimony, that when Mangzi was questioned by Shabalala, he had indicated that he was not paying anything as the applicant had brought him to live in that cottage.
[217] Madondo further testified that on 8 November 2016, Mangazi confirmed to the SGB that he was not paying anything as the applicant had brought him to stay in that cottage.
[218] Shabalala completed his evidence-in-chief but before cross-examination he unfortunately passed away. Shabalala testified at length to the maladministration and financial mismanagement of funds which was documented in his Investigation Report and annexed documentary evidence. He further testified that the applicant as principal was the Head of the Institution and as such was accountable.
[219] Sithole withstood cross-examination and provided an account of the SGB’s interaction with the applicant. His testimony that the applicant misled the SGB when he informed them that Mtshali had to remain a signatory remained unchallenged.
[220] Mtshali testified that she was last a member of the SGB in 2011 but continued signing cheques until 2015. Further, she had signed blank cheques without any supporting documents. Her testimony that the applicant had told her that he had spoken to the SGB, and they had agreed that she must continue signing, remained unchallenged.
[221] In Sweeney v Transcash [2000] 6 BALR 712 (CCMA) it was held that arbitration hearings constitute a hearing de novo on the merits. The award must accordingly be based on evidence led at the arbitration, not on the record of the disciplinary hearing. The decision to demote the applicant was taken after the disciplinary hearing.
[222] The Respondent’s version was presented via the testimony of four witnesses, all of whom came across as honest; did not hesitate when testifying, was clear and candid in their responses. They corroborated each other’s versions pertaining to certain issues.
[223] The applicant and his witness came across as extremely evasive. The applicant throughout his testimony sought to distance himself from any knowledge pertaining to maladministration and financial mismanagement.
[224] The applicant and his witness’ testimony were fraught with inconsistencies. It is glaringly clear from their evidence that they contradicted each other in their versions.
[225] In Mabona & Another V Minister of Law & Order & Others 1988 (2 SA 654 (SE) the court held that the credibility of the witnesses and the probability or improbability of what is said cannot be regarded as separate enquiries to be considered piecemeal. The court held that they are part of a single investigation into the acceptability or otherwise of a plaintiff's version, an investigation where questions of demeanor and impression are measured against the content of a witness' evidence, where the importance of any discrepancies or contradictions are assessed and where a particular story is tested against facts which cannot be disputed and against the inherent probabilities so that at the end of the day one can say with conviction that one version is more probable and should be accepted, and that therefore the other version is false and may be rejected with safety.
[226] Having regard of all the evidence and arguments, I am not convinced that the respondent committed an unfair labour practice relating to the applicant’s demotion. I accordingly find the demotion fair and the applicant has failed to discharge the onus in establishing there was an unfair labour practice.
AWARD
[227] The demotion of the Applicant, Mr. P.S. Khumalo is declared to be fair.
[228] The Applicant’s claim is dismissed.
[229] There is no order as to costs.

ELRC Commissioner: P. Jairajh