ELRC567 – 20/21GP
Text
ELRC567 – 20/21GP
Award Date:
09 June 2022
IN THE ELRC ARBITRATION
BETWEEN:
LK MAROGA “the Applicant”
and
DEPARTMENT OF EDUCATION – GAUTENG PROVINCE “the Respondent”
ARBITRATION AWARD
Case Number: ELRC567 – 20/21GP
Last date of arbitration: 9 May 2022
Last of written closing arguments received on: 18 May 2022
Date of award: 9 June 2022 (extension granted)
COEN HAVENGA
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
Website: www.elrc.org.za
Details of hearing and representation
1. The last day of the hearing of the arbitration took place on 9 May 2022 at the offices of the Respondent in Benoni. The Applicant is Ms Maroga, LK, represented by Mr Mathibe, T, an attorney. The Respondent is the Department of Education – Gauteng Province, represented by Mr Ramalepe, G.
Issue to be decided
2. The parties agreed that the arbitrator is to determine whether the Respondent committed an unfair labour practice related to disciplinary action short of dismissal as provided for in section 186(2)(b) of the Labour Relations Act 66 of 1995 (“the LRA”), and if so, what relief is to be awarded.
Background to the dispute
3. The Applicant, being an PL1 educator at Madingoane Primary School (“the School”), was also the secretary of the School Governing Body (“SGB”).
4. The Applicant was charged with and found guilty of contravening section 18(1)(f) of the Employment of Educators Act 76 of 1998, in that on or about December 2017 she unjustifiably prejudiced the administration, discipline and efficiency of the department in that she misled the District Office that there was a formal meeting where an attendance register was signed, and a grievance drafted after she coerced the SGB members to sign the attendance register.
5. On 14 August 2020 the Applicant was sanctioned with a final written warning, coupled with a two-month unpaid suspension.
6. The Applicant denies the misconduct and alleges that there was no formal meeting held in December 2017.
7. The outcome sought by the Applicant is a finding that she did not commit any misconduct, that the guilty finding and sanction be removed from her file, and that she be reimbursement of the unpaid salary for the period of two months.
8. The Applicant does not dispute the procedural fairness of the disciplinary action taken against her.
9. The Respondents allege that the Applicant did commit the misconduct she was found guilty of, and that the sanction that was imposed is appropriate. The Respondent alleges that there was a meeting that was held in December 2017, and that the Applicant coerced SGB members.
Summary of evidence
What follows is only a summary of the oral and documentary evidence deduced at the arbitration hearing and does not purport to be a verbatim transcription of all the testimony given. The digital recording of the proceedings will reflect the complete testimony of the witnesses.
Applicant’s case
10. The Applicant submitted the documents contained in Bundles B and C.
11. Kate Maroga (“Maroga”), the Applicant, testified under oath that she has no knowledge of a meeting that was held in December 2017. There were several SGB meetings, but none in December 2017. There was a meeting held on 1 July 2017, where the SGB lodged a grievance. The SGB chairperson convened that meeting. It was part of the interview process.
12. The Department advertised the post, the SGB elected an interview panel, the shortlisting meeting was held on 22 June 2017, the interviews were held on 1 July 2017, and the ratification meeting was held on the same day, where the interview panel gave feedback to the SGB on the whole process from shortlisting to interview stage. Members of the SGB were not happy with the process, and the SGB took a decision to write a letter to the Department, as reflected in A24.
13. The Applicant was the secretary of the SGB, and it that capacity she wrote the letter and the chairperson signed it. The letter was dated 5 July 2017 and was submitted to the Department on 6 July 2017. It was not done in December 2017. The district director invited the SGB to a meeting. The grievances which the SGB has with the shortlisting and interview process are outlined in A24.
14. The union observed was mentioned as a reference by one of the candidates, but the union observer did not recuse himself from the panel as he was supposed to do. The SGB felt that the shortlisting and interview process was not fair and disputed the process. An unfair appointment would have been made if the SGB did not submit the grievance. As a result of the grievance being lodged the SGB could not make a recommendation for appointment.
15. The Applicant signed A24 in her capacity as secretary of the SGB. The SGB chairperson also signed it. A26 reflects the attendance register for that ratification meeting where the decision was taken to dispute the fairness of the shortlisting and interview process. It shows the names of the persons who were present when the decision was to submit the grievance. They agreed with the decision. The Applicant did not compel anyone to sign the attendance register.
16. A27 reflects the response from the district director, acknowledging receipt of the complaint dated 28 July 2017. It still did not happen in December 2017. Usually when the SGB lodges a dispute, the Department investigates the issues, and should it find no grounds to support the dispute, the Department makes an appointment. If there is grounds to support the dispute, the post is re-advertised. In this case the post was re-advertised in 2020, and an appointment was made on 1 August 2021.
17. It took some time because the SGB escalated the grievance to Head Office, and the SGB were not happy with the response from head office and escalated the matter to the Public Protector. The Applicant believes that the grievances raised by the SGB were valid, because the post was re-advertised. The delay in making the appointment was caused by the Department, as they are responsible for appointments.
18. The Applicant was appointed as a PL1 educator. She became a member of the SGB when she was elected by her colleagues as part of the staff component of the SGB. The misconduct charges against her emanated from her participation as SGB member. She was charged into of the EEA, and not as SGB member in terms of the SGB Code of Conduct, as reflected in B76.
19. The Code of Conduct gives the HOD the power to suspend or terminate the membership of SGB members, as reflected in B77. When she wrote the grievance letter as secretary of the SGB, she was promoting the best interest of the School. One of her duties as secretary is to write communiques and correspondence. It was necessary in the best interest of the School to raise the procedural flaws in the shortlisting and interview process. If they simply made a recommendation for appointment and ignored the flaws in the process, applicants would have been prejudiced. B80 reflects the duties of the secretary. Her duties were to write minutes, circulate minutes, write letters to the Department on behalf of the SGB, deal with all correspondence on behalf of the SGB and handle all communication on behalf of the SGB.
20. Under cross-examination the Applicant testified that Mr Phasha (“Phasha”) was the chairperson of the SGB who convened the meeting. The ratification meeting was where the grievance was aired. The SGB took a decision to write a grievance letter to the Department.
21. A21 to 23 is the ratification meeting’s minutes. She drafted it. The SGB did not approve of the process that was followed, and as a result a letter had to be written. She was mandated to write the letter even though it might not have been captured in the minutes. She was asked to correspond the decision of the SGB.
22. It was the SGB who had the grievance with the way the interviews were conducted, not her personally. The grievances are set out in the minutes and the grievance letter. As secretary of the SGB she represented the interests of the SGB, not her own individual interests.
23. The SGB was not happy with the district director’s response to the grievance letter and submitted the grievance to the HOD and MEC. The SGB chairperson wrote the letter to escalate the issue to the HOD.
24. A26 was not done on a pro forma letterhead. Maroga wrote the letter based on a mandate from the SGB in the best interests of the School, as part of her communication duties. The SGB would not have signed letters if she acted in her own interests.
25. A26, the attendance register, is dated 1 July 2017. The attendance register for the interviews is also dated 1 July 2017. The interviews were held in the morning, and the ratification meeting in the evening, as people were going on holiday.
26. A23 reflects the decision of the SGB that it did not approve of the shortlisting or interview process that was followed. The decision was captured as such.
27. There was no meeting in December 2017.
28. Paul Phasha (“Phasha”) testified under oath that he was the chairperson of the SGB. The ratification meeting was held on 1 July 2017. There was no meeting in December 2017.
29. A24 is the grievance letter by the SGB addressed to the district director, signed by him and the Applicant. The grievance was about what transpired at the interviews.
30. Phasha does not understand why the Applicant was disciplined by the Respondent, as she was only performing her duties a secretary of the SGB. He was not even consulted in respect of whether there was any misconduct on her part, and if so, he does not understand why he was not charged as well.
31. Dibakoane was also part of the educator component of the SGB. C8 reflects an intention to charge him as well.
32. They had a meeting with the district director in August 2017. They wanted a response to their grievance. It was the SGB who disputed the process, not the Applicant personally. It was her duty to draft the communication containing the collective decision of the SGB. It is not necessary for the secretary to write in the minutes that she had been mandated to write a letter. She did not have to be mandated to do her prescribed duties as secretary.
33. Phasha’s signature on the minutes in A23 indicates that he sanctioned the contents on behalf of the SGB.
34. Under cross-examination Phasha testified that the way forward in A23 meant that the SGB did not approve of the shortlisting and interview process that was followed. The SGB resolved not to ratify the process as they felt it was flawed.
35. The secretary of the SGB has the duty to execute communication on behalf of the SGB. She cannot ask for a mandate to do what she had been appointed for.
Note: The matter was adjourned at this stage to continue face-to-face on a next occasion. On resumption the Respondent’s representative applied to have the Applicant recalled to the witness stand for further cross-examination. Upon questioning the basis for such an extraordinary request, the request was withdrawn, and the cross-examination of Phasha continued.
36. A24 is the grievance letter written by the Applicant. It was approved and signed on 5 July 2017. The attendance register reflected in A26 was filled in at the School on 1 July 2017.
37. The grievance was not addressed to their satisfaction by the district director. A28 reflects their appeal on the grievance. The SGB did not have a preferred candidate during the interviews, they only wanted the best for the School. The grievances are clearly explained in the letters to the Department.
38. They did not have a pro forma letterhead for the attendance register on 1 July 2017. The register is still valid, although it does not appear 100% official. It was a Saturday, and the School was closed. It is not true that it was done in December 2017 to cover up. Phasha disputes that A26 was signed at KFC during a meeting summoned by him and the Applicant. It was signed at the School.
39. The decision to lodge a grievance letter was taken on 1 July 2017, and the letter was approved on 5 July 2017.
40. There is a discrepancy between A30 and A31, there are paragraphs missing between paragraph 4.2 and 8. It does not appear to be pages from the same letter. It could not have been written on 3 July 2017 if they have not even written their own letter dated 24 July 2017.
41. Vincent Sekgobela (“Sekgobela”) testified under oath that he was a member of the SGB of the School. He became involved in this matter at the ratification stage. The reports they received indicated that the process of shortlisting and interviews were flawed. They agreed as SGB to lodge a dispute, and they wrote their grievances down. They expected the secretary to write it up and they set a date to review the grievance letter before it was sent.
42. The Applicant typed the letter as mandated by the SGB. On 5 July 2017 they went to review the letter. Everything was in order, and it was signed by the secretary and the chairperson. A24 reflects the letter. A26 reflects the attendance register for the meeting, which was signed at the School.
43. Under cross-examination Sekgobela testified that he was a parent member of the SGB. He was not part of the interviews. The SGB agreed on the grievances. They did not approve of the shortlisting and interview processes, hence the grievance letter in A24 followed.
44. They met on 5 July 2017 to review the letter. They were satisfied with the contents. A26 was signed on 1 July 2017 at the ratification meeting at the School, not at KFC nor at his house. It was not on a School letterhead. They had technical problems with printing. It wasn’t the first time they signed an attendance register like that.
Respondent’s’ case
45. The Respondent submitted the documents contained in Bundle A.
46. Samuel Mathole (“Mathole”) testified under oath that he was the deputy secretary of the SGB at the School.
47. He was part of the shortlisting and interviews for the principal post. Before the date of the interviews, the Applicant called him and Pasha to meet at
KFC in Daveyton. She told them that Milanzi was the right person for the principal post.
48. Milanzi was scored low during the interviews, and the Applicant told him that he must query why the candidate who came before Milanzi was spot
on in answering all the questions. He did so, but the panel called him to order, and he withdrew the query.
49. After the interviews they attended a meeting, and the Applicant was unhappy with the interviews. There was no instruction issued to the Applicant to lodge a grievance during the feedback meeting. The grievance was constructed at KFC. The attendance register on page 26 of Bundle A was signed at KFC.
50. Some of the SGB members signed at their place of residence. He took the attendance register to Seloga’s place of residence for signature. The aim was to mislead the Department that the attendance register was signed at school whereas it was signed at KFC. He called Dibakoane about the signing of the attendance register. Dibakoane told him that school meetings cannot be held at KFC but in the school premises.
51. They lodged the complaint after they were notified of the correct channels of doing things.
52. The school was badly affected by the Applicant’s actions because ever since the lodging of the grievance the school was without a principal until late in 2021. The Applicant misled the Department. He doesn’t know if Mr Dibakoane was ever charged for misleading the department.
53. Under cross-examination Mathole testified that the chairperson of the Applicant’s disciplinary hearing did find that there was no convincing evidence that the alleged meeting at the KFC actually took place, and she was found not guilty.
54. The panel agreed that all members must be present for the ratification meeting. He did not tell that to the Respondent’s representative, Mathole did not respond to a question whether he was confused with the rules for interviews and ratification. The Applicant addressed people outside the meeting, but he cannot remember who or how many.
55. The interviews were held between June and July 2017, he cannot remember the dates. He only knows about a caucus meeting. He does not know who chaired the caucus meeting. He does not remember the names of the candidates. After given the names of the candidates he could still not remember them. He could not explain why he found it difficult to answer questions.
56. He was not part of A24. A26 is what he signed at KFC. Sekgobela and Seloga was not there. It was Mathole, the Applicant and Phasha at the KFC. Mathole signed as the 4th attendee. He cannot explain why Sekgobela and Seloga signed before him if they were not present at KFC. He was not forced to sign. He signed out of ignorance and lack of knowledge. He was also not coerced into signing it.
57. A lot of things did not cross his mind due to ignorance. He only realised it was wrong after he spoke to Dibakoane. He did not know the Department intended to charge Dibakoane. Mathole does not blame the Applicant. He does not blame anyone. Three of them decided to draft a complaint letter on 26 October 2017.
58. Mathole testified that he stopped serving as SGB member in 2016. When it was put to him that the events relevant to this arbitration happened in 2017, he said that he was not sure. He could not remember because it was a long time ago. As far as he can remember there was no ratification meeting.
59. Phillipus Dibakoane (“Dibakoane”) testified under oath that he was a member of the SGB. He was part of the shortlisting and interview process. The Applicant had a problem when the candidate that came after Mr Milanzi was spot on in answering questions.
60. The Applicant whispered to Mathole to ask why the candidate was spot on in answering interview questions. Mathole was called to order by Phasha.
61. After the interviews he did not attend any meeting as he was going home to Limpopo. He does not know anything about a grievance lodged. He was told by Mathole that there was a grievance lodged and they were being used by the Applicant.
62. He was told by Mathole that before the interviews, there was a meeting held at KFC. The Applicant recommended that Milanzi be appointed as principal. Meetings are supposed to be held at school not at KFC restaurants. He was told that there were no issues raised in relation to the interviews during the meeting.
63. After the interviews, there was another meeting summoned by the Applicant at KFC. He was never charged of misconduct in relation to misleading the department.
64. Under cross-examination Dibakoane could not indicate how his testimony was relevant to the charge against the Applicant. He did not respond to a question about what happened in December 2017. The interviews were in July 2017. He agreed that nothing happened in December 2017. It is correct that the charge accused the Applicant of misconduct in December 2017.
Analysis of evidence
65. The parties submitted written closing arguments which forms part of the record and will not be repeated here. I have considered all the arguments, legal principles, case law, legislation, Codes of Good Practice, and other principles of law referred to by the parties, together with the other evidence, oral and documentary, presented by the parties during the arbitration hearing, as reflected in the record of the arbitration hearing
66. The Applicant claims that the Respondents committed an unfair labour practice relating to disciplinary action short of dismissal, i.e. the guilty finding for misconduct, and the issuing of a sanction of a final written warning coupled with an unpaid suspension for a period of two months.
67. The statutory provision, in terms of which this tribunal may arbitrate disputes about the fairness of disciplinary action short of dismissal, is to be found in section 186(2)(b) of the Labour Relations Act, no. 66 of 1995, which defines unfair labour practices.
68. The onus in an unfair labour practice disputes falls on the Applicant. The standard of proof applicable in hearings of this nature is identical to the civil standard – “the (applicant) must prove the case … on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1. The employee must prove not only the existence of the labour practice, if it is disputed, but also that it is unfair. The employer must actually have done something or refused to do something.
69. Mere unhappiness or a perception of unfairness does not establish unfair conduct - see Du Toit et al Labour Relations Law (5th ed) 488. What is fair depends upon the circumstances of a particular case and essentially involves a value judgement. The fairness required in the determination of an unfair labour practice must be fairness toward both employee and employer (see National Union of Metalworkers of SA v Vetsak Co-Operative Ltd & others 1996 (4) SA 577 (SCA) 589C–D; National Education Health & Allied Workers Union v University of Cape Town & others (2003) 24 ILJ 95 (CC) paragraph 38).
70. The arbitration of the dispute in casu entails a review of the employer’s actions. The Constitutional Court’s examination of the concept of fairness where it has been held that the arbitrator is not given the power to consider afresh what he would do but to decide whether what the employer did was fair, is relevant - see Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] JOL 20811 (CC).
71. The Applicant was charged with and found guilty of contravening section 18(1)(f) of the Employment of Educators Act 76 of 1998, in that on or about December 2017 she unjustifiably prejudiced the administration, discipline and efficiency of the department in that she misled the District Office that there was a formal meeting where an attendance register was signed, and a grievance drafted after she coerced the SGB members to sign the attendance register.
72. The Respondent’s case turns on the allegations, through the evidence of its witnesses Mathole and Dibakoane, that the attendance register reflected in A26 was signed at the KFC and at the homes of SGB members, and that in doing so she misled the District Office in December 2017 that there was a formal meeting, and also that she coerced the SGB members into signing A26.
73. There are two contradictory versions in respect of where the attendance register was signed, and whether the SGB members were coerced into signing it. The Applicant, Phasha and Sekgobela all three testified that no meeting took place at a KFC, and that the attendance register was signed at the School. It is important to keep in mind that the chairperson of the disciplinary hearing also found that there was no convincing evidence that the alleged meeting at KFC took place. What is not in dispute, however, is that it was not done in December 2017, as alleged by the Respondent in the charge sheet. Both the Respondent’s witnesses confirmed that nothing happened in December 2017. Mathole only testified on behalf of the Respondent that he signed the attendance register at the KFC. Dibakoane’s evidence was mainly a repetition of what Mathole told him, and he did not sign A26. Mathole in fact testified that he was not coerced or forced into signing A26. The fact that A26 was not formalized on a letterhead of the School, in itself does not justify an inference to be drawn that it was not reflective of a proper SGB meeting at the School, as the Applicant testified.
74. Mathole came across as a very poor witness. His was incoherent during his testimony, and his memory appeared to be shaky. He was evasive in respect of almost every question that was asked in cross-examination. The same applied to his testimony in chief. This is the witness upon which the Respondent relies to prove the alleged misconduct of the Applicant, as the only other witness, Dibakoane, merely repeated what Mathole told him regarding the A26 and the meeting at KFC. The witnesses for the Applicant, i.e. Phasha and Sekgobela, corroborated her evidence in all material aspects, and I find no reason to reject their evidence as not being credible.
75. The Applicant was the elected secretary of the SGB. As such her duties included dealing with correspondence on behalf of the SGB. I find no probable evidence that in writing the grievance letter as mandated by the SGB, she acted outside her authority, or that she acted out of self-interest. The SGB took a collective decision to file a grievance letter, and her drafting of the letter was logical consequence of her duties as secretary. The fact that it was not noted in the minutes of the meeting that she must exercise her duties as secretary and write the letter, is no indication that she acted outside the scope of her position and capacity as secretary. If that was the case, I find it odd that the Respondent did not act against Dibakoane, as it intended, as well as against the chairperson of the SGB, who signed off the letter. A letter of intent to charge Dibakoane with the exact same charge as the Applicant, was not followed through on, but instead he testified against the Applicant. The Respondent also had the option of acting against Phasha in terms of the Code of Conduct for SGB members but chose not to.
76. Weighing up the testimony of the Applicant, Phasha and Sekgobela against the testimony and direct evidence of only Mathole, I find on a balance of probabilities no evidence that the Applicant on or about December 2017 unjustifiably prejudiced the administration, discipline and efficiency of the department, or that she misled the District Office that there was a formal meeting where an attendance register was signed, or that a grievance was drafted after she coerced the SGB members to sign the attendance register.
Finding
77. The evidence shows on a balance of probabilities that the Applicant did not make herself guilty of the misconduct which she had been found guilty of.
78. I am satisfied that the Respondent did commit a practice that would constitute unfair action by the Respondent that resulted in unfair disciplinary action which falls within the definition of an unfair labour practice as provided for in section 186(2)(b) of the LRA.
Relief
79. Section 193(4) of LRA provides that an arbitrator may determine any unfair labour practice on terms that the arbitrator deems reasonable.
80. Taking into account the circumstances of the matter I am of the opinion that the relief sought by the Applicant is appropriate. The finding of guilt by the Respondent is set aside and the guilty finding and final written warning is to be removed from the Applicant’s personnel file. The Respondent shall retrospectively lift the unpaid suspension imposed on 14 August 2020 with immediate effect and shall reimburse the Applicant her unpaid remuneration for the two months of the suspension.
Award
81. The Respondent’s conduct amounts to an unfair labour practice in terms of section 186(2)(b) of the Labour Relations Act, no. 66 of 1995.
82. l therefore hereby order the Respondent to immediately upon receipt of this award remove the guilty finding and the final written warning from the Applicant’s personnel file.
83. The Respondent is furthermore ordered to pay to the Applicant her monthly gross salary she would have earned for the period of the two months of the unpaid suspension that was imposed, minus such deductions as the Respondent is in terms of the law or agreement with the Applicant entitled or obliged to make. The payment shall be made in one amount by no later than 30 June 2022 into the bank account of the Applicant, the details of which is known to the Respondent.
84. I have considered the Applicant’s application for costs. Considering all the circumstances of the matter, including but not limited to the ongoing relationship between the parties, I find that it would not be justified, and therefore no order is made in respect of costs.
COEN HAVENGA
Abitrator
9 June 2022
ELRC567-20/21GP
BETWEEN:
LK MAROGA “the Applicant”
and
DEPARTMENT OF EDUCATION – GAUTENG PROVINCE “the Respondent”
ARBITRATION AWARD
Case Number: ELRC567 – 20/21GP
Last date of arbitration: 9 May 2022
Last of written closing arguments received on: 18 May 2022
Date of award: 9 June 2022 (extension granted)
COEN HAVENGA
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
Website: www.elrc.org.za
Details of hearing and representation
1. The last day of the hearing of the arbitration took place on 9 May 2022 at the offices of the Respondent in Benoni. The Applicant is Ms Maroga, LK, represented by Mr Mathibe, T, an attorney. The Respondent is the Department of Education – Gauteng Province, represented by Mr Ramalepe, G.
Issue to be decided
2. The parties agreed that the arbitrator is to determine whether the Respondent committed an unfair labour practice related to disciplinary action short of dismissal as provided for in section 186(2)(b) of the Labour Relations Act 66 of 1995 (“the LRA”), and if so, what relief is to be awarded.
Background to the dispute
3. The Applicant, being an PL1 educator at Madingoane Primary School (“the School”), was also the secretary of the School Governing Body (“SGB”).
4. The Applicant was charged with and found guilty of contravening section 18(1)(f) of the Employment of Educators Act 76 of 1998, in that on or about December 2017 she unjustifiably prejudiced the administration, discipline and efficiency of the department in that she misled the District Office that there was a formal meeting where an attendance register was signed, and a grievance drafted after she coerced the SGB members to sign the attendance register.
5. On 14 August 2020 the Applicant was sanctioned with a final written warning, coupled with a two-month unpaid suspension.
6. The Applicant denies the misconduct and alleges that there was no formal meeting held in December 2017.
7. The outcome sought by the Applicant is a finding that she did not commit any misconduct, that the guilty finding and sanction be removed from her file, and that she be reimbursement of the unpaid salary for the period of two months.
8. The Applicant does not dispute the procedural fairness of the disciplinary action taken against her.
9. The Respondents allege that the Applicant did commit the misconduct she was found guilty of, and that the sanction that was imposed is appropriate. The Respondent alleges that there was a meeting that was held in December 2017, and that the Applicant coerced SGB members.
Summary of evidence
What follows is only a summary of the oral and documentary evidence deduced at the arbitration hearing and does not purport to be a verbatim transcription of all the testimony given. The digital recording of the proceedings will reflect the complete testimony of the witnesses.
Applicant’s case
10. The Applicant submitted the documents contained in Bundles B and C.
11. Kate Maroga (“Maroga”), the Applicant, testified under oath that she has no knowledge of a meeting that was held in December 2017. There were several SGB meetings, but none in December 2017. There was a meeting held on 1 July 2017, where the SGB lodged a grievance. The SGB chairperson convened that meeting. It was part of the interview process.
12. The Department advertised the post, the SGB elected an interview panel, the shortlisting meeting was held on 22 June 2017, the interviews were held on 1 July 2017, and the ratification meeting was held on the same day, where the interview panel gave feedback to the SGB on the whole process from shortlisting to interview stage. Members of the SGB were not happy with the process, and the SGB took a decision to write a letter to the Department, as reflected in A24.
13. The Applicant was the secretary of the SGB, and it that capacity she wrote the letter and the chairperson signed it. The letter was dated 5 July 2017 and was submitted to the Department on 6 July 2017. It was not done in December 2017. The district director invited the SGB to a meeting. The grievances which the SGB has with the shortlisting and interview process are outlined in A24.
14. The union observed was mentioned as a reference by one of the candidates, but the union observer did not recuse himself from the panel as he was supposed to do. The SGB felt that the shortlisting and interview process was not fair and disputed the process. An unfair appointment would have been made if the SGB did not submit the grievance. As a result of the grievance being lodged the SGB could not make a recommendation for appointment.
15. The Applicant signed A24 in her capacity as secretary of the SGB. The SGB chairperson also signed it. A26 reflects the attendance register for that ratification meeting where the decision was taken to dispute the fairness of the shortlisting and interview process. It shows the names of the persons who were present when the decision was to submit the grievance. They agreed with the decision. The Applicant did not compel anyone to sign the attendance register.
16. A27 reflects the response from the district director, acknowledging receipt of the complaint dated 28 July 2017. It still did not happen in December 2017. Usually when the SGB lodges a dispute, the Department investigates the issues, and should it find no grounds to support the dispute, the Department makes an appointment. If there is grounds to support the dispute, the post is re-advertised. In this case the post was re-advertised in 2020, and an appointment was made on 1 August 2021.
17. It took some time because the SGB escalated the grievance to Head Office, and the SGB were not happy with the response from head office and escalated the matter to the Public Protector. The Applicant believes that the grievances raised by the SGB were valid, because the post was re-advertised. The delay in making the appointment was caused by the Department, as they are responsible for appointments.
18. The Applicant was appointed as a PL1 educator. She became a member of the SGB when she was elected by her colleagues as part of the staff component of the SGB. The misconduct charges against her emanated from her participation as SGB member. She was charged into of the EEA, and not as SGB member in terms of the SGB Code of Conduct, as reflected in B76.
19. The Code of Conduct gives the HOD the power to suspend or terminate the membership of SGB members, as reflected in B77. When she wrote the grievance letter as secretary of the SGB, she was promoting the best interest of the School. One of her duties as secretary is to write communiques and correspondence. It was necessary in the best interest of the School to raise the procedural flaws in the shortlisting and interview process. If they simply made a recommendation for appointment and ignored the flaws in the process, applicants would have been prejudiced. B80 reflects the duties of the secretary. Her duties were to write minutes, circulate minutes, write letters to the Department on behalf of the SGB, deal with all correspondence on behalf of the SGB and handle all communication on behalf of the SGB.
20. Under cross-examination the Applicant testified that Mr Phasha (“Phasha”) was the chairperson of the SGB who convened the meeting. The ratification meeting was where the grievance was aired. The SGB took a decision to write a grievance letter to the Department.
21. A21 to 23 is the ratification meeting’s minutes. She drafted it. The SGB did not approve of the process that was followed, and as a result a letter had to be written. She was mandated to write the letter even though it might not have been captured in the minutes. She was asked to correspond the decision of the SGB.
22. It was the SGB who had the grievance with the way the interviews were conducted, not her personally. The grievances are set out in the minutes and the grievance letter. As secretary of the SGB she represented the interests of the SGB, not her own individual interests.
23. The SGB was not happy with the district director’s response to the grievance letter and submitted the grievance to the HOD and MEC. The SGB chairperson wrote the letter to escalate the issue to the HOD.
24. A26 was not done on a pro forma letterhead. Maroga wrote the letter based on a mandate from the SGB in the best interests of the School, as part of her communication duties. The SGB would not have signed letters if she acted in her own interests.
25. A26, the attendance register, is dated 1 July 2017. The attendance register for the interviews is also dated 1 July 2017. The interviews were held in the morning, and the ratification meeting in the evening, as people were going on holiday.
26. A23 reflects the decision of the SGB that it did not approve of the shortlisting or interview process that was followed. The decision was captured as such.
27. There was no meeting in December 2017.
28. Paul Phasha (“Phasha”) testified under oath that he was the chairperson of the SGB. The ratification meeting was held on 1 July 2017. There was no meeting in December 2017.
29. A24 is the grievance letter by the SGB addressed to the district director, signed by him and the Applicant. The grievance was about what transpired at the interviews.
30. Phasha does not understand why the Applicant was disciplined by the Respondent, as she was only performing her duties a secretary of the SGB. He was not even consulted in respect of whether there was any misconduct on her part, and if so, he does not understand why he was not charged as well.
31. Dibakoane was also part of the educator component of the SGB. C8 reflects an intention to charge him as well.
32. They had a meeting with the district director in August 2017. They wanted a response to their grievance. It was the SGB who disputed the process, not the Applicant personally. It was her duty to draft the communication containing the collective decision of the SGB. It is not necessary for the secretary to write in the minutes that she had been mandated to write a letter. She did not have to be mandated to do her prescribed duties as secretary.
33. Phasha’s signature on the minutes in A23 indicates that he sanctioned the contents on behalf of the SGB.
34. Under cross-examination Phasha testified that the way forward in A23 meant that the SGB did not approve of the shortlisting and interview process that was followed. The SGB resolved not to ratify the process as they felt it was flawed.
35. The secretary of the SGB has the duty to execute communication on behalf of the SGB. She cannot ask for a mandate to do what she had been appointed for.
Note: The matter was adjourned at this stage to continue face-to-face on a next occasion. On resumption the Respondent’s representative applied to have the Applicant recalled to the witness stand for further cross-examination. Upon questioning the basis for such an extraordinary request, the request was withdrawn, and the cross-examination of Phasha continued.
36. A24 is the grievance letter written by the Applicant. It was approved and signed on 5 July 2017. The attendance register reflected in A26 was filled in at the School on 1 July 2017.
37. The grievance was not addressed to their satisfaction by the district director. A28 reflects their appeal on the grievance. The SGB did not have a preferred candidate during the interviews, they only wanted the best for the School. The grievances are clearly explained in the letters to the Department.
38. They did not have a pro forma letterhead for the attendance register on 1 July 2017. The register is still valid, although it does not appear 100% official. It was a Saturday, and the School was closed. It is not true that it was done in December 2017 to cover up. Phasha disputes that A26 was signed at KFC during a meeting summoned by him and the Applicant. It was signed at the School.
39. The decision to lodge a grievance letter was taken on 1 July 2017, and the letter was approved on 5 July 2017.
40. There is a discrepancy between A30 and A31, there are paragraphs missing between paragraph 4.2 and 8. It does not appear to be pages from the same letter. It could not have been written on 3 July 2017 if they have not even written their own letter dated 24 July 2017.
41. Vincent Sekgobela (“Sekgobela”) testified under oath that he was a member of the SGB of the School. He became involved in this matter at the ratification stage. The reports they received indicated that the process of shortlisting and interviews were flawed. They agreed as SGB to lodge a dispute, and they wrote their grievances down. They expected the secretary to write it up and they set a date to review the grievance letter before it was sent.
42. The Applicant typed the letter as mandated by the SGB. On 5 July 2017 they went to review the letter. Everything was in order, and it was signed by the secretary and the chairperson. A24 reflects the letter. A26 reflects the attendance register for the meeting, which was signed at the School.
43. Under cross-examination Sekgobela testified that he was a parent member of the SGB. He was not part of the interviews. The SGB agreed on the grievances. They did not approve of the shortlisting and interview processes, hence the grievance letter in A24 followed.
44. They met on 5 July 2017 to review the letter. They were satisfied with the contents. A26 was signed on 1 July 2017 at the ratification meeting at the School, not at KFC nor at his house. It was not on a School letterhead. They had technical problems with printing. It wasn’t the first time they signed an attendance register like that.
Respondent’s’ case
45. The Respondent submitted the documents contained in Bundle A.
46. Samuel Mathole (“Mathole”) testified under oath that he was the deputy secretary of the SGB at the School.
47. He was part of the shortlisting and interviews for the principal post. Before the date of the interviews, the Applicant called him and Pasha to meet at
KFC in Daveyton. She told them that Milanzi was the right person for the principal post.
48. Milanzi was scored low during the interviews, and the Applicant told him that he must query why the candidate who came before Milanzi was spot
on in answering all the questions. He did so, but the panel called him to order, and he withdrew the query.
49. After the interviews they attended a meeting, and the Applicant was unhappy with the interviews. There was no instruction issued to the Applicant to lodge a grievance during the feedback meeting. The grievance was constructed at KFC. The attendance register on page 26 of Bundle A was signed at KFC.
50. Some of the SGB members signed at their place of residence. He took the attendance register to Seloga’s place of residence for signature. The aim was to mislead the Department that the attendance register was signed at school whereas it was signed at KFC. He called Dibakoane about the signing of the attendance register. Dibakoane told him that school meetings cannot be held at KFC but in the school premises.
51. They lodged the complaint after they were notified of the correct channels of doing things.
52. The school was badly affected by the Applicant’s actions because ever since the lodging of the grievance the school was without a principal until late in 2021. The Applicant misled the Department. He doesn’t know if Mr Dibakoane was ever charged for misleading the department.
53. Under cross-examination Mathole testified that the chairperson of the Applicant’s disciplinary hearing did find that there was no convincing evidence that the alleged meeting at the KFC actually took place, and she was found not guilty.
54. The panel agreed that all members must be present for the ratification meeting. He did not tell that to the Respondent’s representative, Mathole did not respond to a question whether he was confused with the rules for interviews and ratification. The Applicant addressed people outside the meeting, but he cannot remember who or how many.
55. The interviews were held between June and July 2017, he cannot remember the dates. He only knows about a caucus meeting. He does not know who chaired the caucus meeting. He does not remember the names of the candidates. After given the names of the candidates he could still not remember them. He could not explain why he found it difficult to answer questions.
56. He was not part of A24. A26 is what he signed at KFC. Sekgobela and Seloga was not there. It was Mathole, the Applicant and Phasha at the KFC. Mathole signed as the 4th attendee. He cannot explain why Sekgobela and Seloga signed before him if they were not present at KFC. He was not forced to sign. He signed out of ignorance and lack of knowledge. He was also not coerced into signing it.
57. A lot of things did not cross his mind due to ignorance. He only realised it was wrong after he spoke to Dibakoane. He did not know the Department intended to charge Dibakoane. Mathole does not blame the Applicant. He does not blame anyone. Three of them decided to draft a complaint letter on 26 October 2017.
58. Mathole testified that he stopped serving as SGB member in 2016. When it was put to him that the events relevant to this arbitration happened in 2017, he said that he was not sure. He could not remember because it was a long time ago. As far as he can remember there was no ratification meeting.
59. Phillipus Dibakoane (“Dibakoane”) testified under oath that he was a member of the SGB. He was part of the shortlisting and interview process. The Applicant had a problem when the candidate that came after Mr Milanzi was spot on in answering questions.
60. The Applicant whispered to Mathole to ask why the candidate was spot on in answering interview questions. Mathole was called to order by Phasha.
61. After the interviews he did not attend any meeting as he was going home to Limpopo. He does not know anything about a grievance lodged. He was told by Mathole that there was a grievance lodged and they were being used by the Applicant.
62. He was told by Mathole that before the interviews, there was a meeting held at KFC. The Applicant recommended that Milanzi be appointed as principal. Meetings are supposed to be held at school not at KFC restaurants. He was told that there were no issues raised in relation to the interviews during the meeting.
63. After the interviews, there was another meeting summoned by the Applicant at KFC. He was never charged of misconduct in relation to misleading the department.
64. Under cross-examination Dibakoane could not indicate how his testimony was relevant to the charge against the Applicant. He did not respond to a question about what happened in December 2017. The interviews were in July 2017. He agreed that nothing happened in December 2017. It is correct that the charge accused the Applicant of misconduct in December 2017.
Analysis of evidence
65. The parties submitted written closing arguments which forms part of the record and will not be repeated here. I have considered all the arguments, legal principles, case law, legislation, Codes of Good Practice, and other principles of law referred to by the parties, together with the other evidence, oral and documentary, presented by the parties during the arbitration hearing, as reflected in the record of the arbitration hearing
66. The Applicant claims that the Respondents committed an unfair labour practice relating to disciplinary action short of dismissal, i.e. the guilty finding for misconduct, and the issuing of a sanction of a final written warning coupled with an unpaid suspension for a period of two months.
67. The statutory provision, in terms of which this tribunal may arbitrate disputes about the fairness of disciplinary action short of dismissal, is to be found in section 186(2)(b) of the Labour Relations Act, no. 66 of 1995, which defines unfair labour practices.
68. The onus in an unfair labour practice disputes falls on the Applicant. The standard of proof applicable in hearings of this nature is identical to the civil standard – “the (applicant) must prove the case … on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1. The employee must prove not only the existence of the labour practice, if it is disputed, but also that it is unfair. The employer must actually have done something or refused to do something.
69. Mere unhappiness or a perception of unfairness does not establish unfair conduct - see Du Toit et al Labour Relations Law (5th ed) 488. What is fair depends upon the circumstances of a particular case and essentially involves a value judgement. The fairness required in the determination of an unfair labour practice must be fairness toward both employee and employer (see National Union of Metalworkers of SA v Vetsak Co-Operative Ltd & others 1996 (4) SA 577 (SCA) 589C–D; National Education Health & Allied Workers Union v University of Cape Town & others (2003) 24 ILJ 95 (CC) paragraph 38).
70. The arbitration of the dispute in casu entails a review of the employer’s actions. The Constitutional Court’s examination of the concept of fairness where it has been held that the arbitrator is not given the power to consider afresh what he would do but to decide whether what the employer did was fair, is relevant - see Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] JOL 20811 (CC).
71. The Applicant was charged with and found guilty of contravening section 18(1)(f) of the Employment of Educators Act 76 of 1998, in that on or about December 2017 she unjustifiably prejudiced the administration, discipline and efficiency of the department in that she misled the District Office that there was a formal meeting where an attendance register was signed, and a grievance drafted after she coerced the SGB members to sign the attendance register.
72. The Respondent’s case turns on the allegations, through the evidence of its witnesses Mathole and Dibakoane, that the attendance register reflected in A26 was signed at the KFC and at the homes of SGB members, and that in doing so she misled the District Office in December 2017 that there was a formal meeting, and also that she coerced the SGB members into signing A26.
73. There are two contradictory versions in respect of where the attendance register was signed, and whether the SGB members were coerced into signing it. The Applicant, Phasha and Sekgobela all three testified that no meeting took place at a KFC, and that the attendance register was signed at the School. It is important to keep in mind that the chairperson of the disciplinary hearing also found that there was no convincing evidence that the alleged meeting at KFC took place. What is not in dispute, however, is that it was not done in December 2017, as alleged by the Respondent in the charge sheet. Both the Respondent’s witnesses confirmed that nothing happened in December 2017. Mathole only testified on behalf of the Respondent that he signed the attendance register at the KFC. Dibakoane’s evidence was mainly a repetition of what Mathole told him, and he did not sign A26. Mathole in fact testified that he was not coerced or forced into signing A26. The fact that A26 was not formalized on a letterhead of the School, in itself does not justify an inference to be drawn that it was not reflective of a proper SGB meeting at the School, as the Applicant testified.
74. Mathole came across as a very poor witness. His was incoherent during his testimony, and his memory appeared to be shaky. He was evasive in respect of almost every question that was asked in cross-examination. The same applied to his testimony in chief. This is the witness upon which the Respondent relies to prove the alleged misconduct of the Applicant, as the only other witness, Dibakoane, merely repeated what Mathole told him regarding the A26 and the meeting at KFC. The witnesses for the Applicant, i.e. Phasha and Sekgobela, corroborated her evidence in all material aspects, and I find no reason to reject their evidence as not being credible.
75. The Applicant was the elected secretary of the SGB. As such her duties included dealing with correspondence on behalf of the SGB. I find no probable evidence that in writing the grievance letter as mandated by the SGB, she acted outside her authority, or that she acted out of self-interest. The SGB took a collective decision to file a grievance letter, and her drafting of the letter was logical consequence of her duties as secretary. The fact that it was not noted in the minutes of the meeting that she must exercise her duties as secretary and write the letter, is no indication that she acted outside the scope of her position and capacity as secretary. If that was the case, I find it odd that the Respondent did not act against Dibakoane, as it intended, as well as against the chairperson of the SGB, who signed off the letter. A letter of intent to charge Dibakoane with the exact same charge as the Applicant, was not followed through on, but instead he testified against the Applicant. The Respondent also had the option of acting against Phasha in terms of the Code of Conduct for SGB members but chose not to.
76. Weighing up the testimony of the Applicant, Phasha and Sekgobela against the testimony and direct evidence of only Mathole, I find on a balance of probabilities no evidence that the Applicant on or about December 2017 unjustifiably prejudiced the administration, discipline and efficiency of the department, or that she misled the District Office that there was a formal meeting where an attendance register was signed, or that a grievance was drafted after she coerced the SGB members to sign the attendance register.
Finding
77. The evidence shows on a balance of probabilities that the Applicant did not make herself guilty of the misconduct which she had been found guilty of.
78. I am satisfied that the Respondent did commit a practice that would constitute unfair action by the Respondent that resulted in unfair disciplinary action which falls within the definition of an unfair labour practice as provided for in section 186(2)(b) of the LRA.
Relief
79. Section 193(4) of LRA provides that an arbitrator may determine any unfair labour practice on terms that the arbitrator deems reasonable.
80. Taking into account the circumstances of the matter I am of the opinion that the relief sought by the Applicant is appropriate. The finding of guilt by the Respondent is set aside and the guilty finding and final written warning is to be removed from the Applicant’s personnel file. The Respondent shall retrospectively lift the unpaid suspension imposed on 14 August 2020 with immediate effect and shall reimburse the Applicant her unpaid remuneration for the two months of the suspension.
Award
81. The Respondent’s conduct amounts to an unfair labour practice in terms of section 186(2)(b) of the Labour Relations Act, no. 66 of 1995.
82. l therefore hereby order the Respondent to immediately upon receipt of this award remove the guilty finding and the final written warning from the Applicant’s personnel file.
83. The Respondent is furthermore ordered to pay to the Applicant her monthly gross salary she would have earned for the period of the two months of the unpaid suspension that was imposed, minus such deductions as the Respondent is in terms of the law or agreement with the Applicant entitled or obliged to make. The payment shall be made in one amount by no later than 30 June 2022 into the bank account of the Applicant, the details of which is known to the Respondent.
84. I have considered the Applicant’s application for costs. Considering all the circumstances of the matter, including but not limited to the ongoing relationship between the parties, I find that it would not be justified, and therefore no order is made in respect of costs.
COEN HAVENGA
Abitrator
9 June 2022
ELRC567-20/21GP