ELRC941-21/22 GP
Text
ELRC941-21/22 GP
Award Date:
13 July 2022
Case Number: ELRC941-21/22 GP
Panelists: Malusi Mbuli
Date of Award: 13-07-2022
In the ARBITRATION between
SADTU obo VICTOR MOTHOMONE MATLOGA
(Applicant)
And
GAUTENG - DEPARTMENT OF EDUCATION
(Respondent)
DETAILS OF HEARING AND DETAILS REPRESENTATION
1. The arbitration hearing took place on the 01st, 02nd & 03rd of June 2022, 30th of June 2022 and 01st and 04th of July 2022 virtually.
2. The applicant Mr. Victor Mothimone Matloga was present at the hearing and was represented by Mr. Zolani Mlambo an official of the applicant’s trade union SADTU.
3. The respondent, Gauteng – Department of Education was also present at the hearing and was represented by Mrs. Emily Magadla, an official of the respondent.
4. The arbitration hearing proceeded for the days listed above and was finalized on the 04th of July 2022 and the parties agreed to deliver their closing arguments in writing on or before the 11th of July 2022 and both parties delivered their arguments on time.
ISSUE TO BE DECIDED
5. I am required to determine whether or not the applicant’s dismissal was unfair and if so, the appropriate relief in accordance with Sections 193 and 194 of the Labour Relations Act No 66 of 1995, as amended in 2015.
BACKGROUND TO THE ISSUE
6. The applicant was employed by the respondent as a Principal at Franklin D. Roosevelt Primary School – Gauteng Province. He was dismissed by the respondent on the 20th of February 2022 after he was found guilty at the disciplinary hearing followed by an appeal process on the charge of:
- Charge – Prejudicing the Department of Education by facilitating extortion of money in the amount of R6 500 from an SGB – Educator by the name of Mphithizeli Petros Meko.
7. The applicant denied the allegations leveled against him and argued that his dismissal was substantively unfair. The applicant also disputes the procedural fairness of his dismissal arguing that the chairperson was biased because he and the initiator are appointed and report to the same Gauteng Department of Education.
8. Applicant further argues that the chairperson assisted the employer witness by answering for her and he refused to recuse himself when asked to do so and that the chairperson tempered with the recording and changed it.
9. The applicant then referred a dismissal dispute to the ELRC alleging that the respondent has unfairly dismissed him and the matter was later set down for arbitration hearing and finalized on the 04th of July 2022.
SURVEY OF EVIDENCE
10. The first witness for the respondent was Mr. Mphitizeli Petros Meko who testified that he was employed as an SGB educator at the Franklin D. Rooseveld Primary School from 2013 – 2021 and was an IT coordinator also teaching other subjects and website maintenance.
11. Upon renewing his contract between October and December 2020, he was advised by the principal to apply for the Departmental post of HOD that was left by another teacher at the school. He applied for the said position and Mr. Matloga subsequently told him that he was flagged for misconduct at the Free State.
12. He stated that they used to travel together and talk about a number of things and he then reminded him of the abscondment matter. He told him that he will see what he can do, and told him to write a letter of disclosure and email to him which he did.
13. Before receiving the disclosure letter he was called during break time when he was walking to the staff room at the smoking area by the applicant Mr. Matloga and Mr Chris Karma (the SGB member). He approached them and Mr. Matloga told him that ‘abantu bayakhala abakufuni la because of the misconduct” people are complaining about him.
14. They told him that people must be given something like R6 500, 00 and that this money must be exchanged outside school premises. He stated that he was reluctant to agree and give them the money but he wanted to save his job and he gave the money, an amount of R6 500, 00 to Mr. Kama at the Engen at North Cliff.
15. He was later told by a teacher by the name of Silindile Sibiya that Mr. Matloga and some SGB members were extorting money from employees and that that teacher left the school as she could not take it anymore. On the 20th November 2020, on salary day he switched off his phone deliberately because he knew that Chris Karma will be calling.
16. After school, while busy with other staff members, a cook by the name of Mr. Moses Sebugudi came to him running with a phone and it was Mr. Karma on the phone who told him that he was going to the garage to meet him. Before going to the garage he told Sonnyboy that he was going to give Mr. Karma money and he asked him to go to the garage and take them a photo whilst exchanging money as he was contemplating to make a case.
17. On Monday he met with Mr. Matloga at the parking lot and Mr. Matloga greeted him and asked him what did he do on Friday and he told him that he gave R6 500, 00 to Mr. Chris Karma and Mr. Matloga told him that Mr. Chris Karma told him that he was robbed and he told him that Chris was lying. Mr Matloga was complaining that other members want the money.
18. The next salary was going to be on the 15th of December and Mr. Matloga would call him to his office and remind him about the payment of money. On the pay day he was absent at work because he had flu and Mr. Matloga called him and sent email saying he will no longer be an employee at the school. Mr. Matloga also called his neighbor after he had dropped the phone. Mr. Matloga also called his ex-wife and Mr. Chris Karma was also sending messages and he was ignoring them and did not give them the money.
19. Subsequent to that when he was discussing the issue of the R6 500, 00 he paid with the clerk Sonto she also shared with him that she paid R4 500, 00 apparently at the same spot. Sonto liaised him with Ms. Khosi Phama, the SGB treasurer and Ms. Khosi Phama said they should not give these people money because Mr. Matloga is getting a lot of money.
20. After the re-opening of schools the following year he was intimidated that he was no longer an employee and now moved from the contract issue to the misconduct in the Free State issue and at this point he contacted Ms. Kowalik, the NAPTOSA representative. He together with Ms. Sonto made an arrangement to go and tell Ms. Wendy Kowalik of what happened and met her at a restaurant and told her.
21. Mr. Meko made a commitment to expose this and he escalated the matter to the IDSO and SAPS and the IDSO came to school, he narrated everything to her and gave her the case number and told her about other people though they were afraid to talk. He stated that he had to think about many things before he could take any action against this as he was not happy about the extortion. He stated that he did not record Mr. Matloga and Mr. Karma at the smoking area because he did not know what they were calling him for and what they were going to say to him. He stated that everything happened in a hit of a moment.
22. At the garage he said that he attempted to get the footage of him giving Mr. Karma the money but was told that the time has lapsed (for the footage to be recovered). He gave contradictory statements on whether the exchange of this money was inside the car or he was standing outside of the car by the car window.
23. He confirmed that Sonnyboy Twala whom he asked to follow them didn’t come through to the garage and take them pictures when giving Mr. Karma money and he thinks that Mr. Twala did not understand him as said he thought or heard that the exchange of money will be happening at the school.
24. He submitted that he never gave Mr. Matloga money but that Mr. Matloga was part and parcel of the benefiaries even though there was no evidence of this allegation. He stated that Mr. Matloga facilitated the whole process even though he was not there at the garage when the R6 500, 00 was paid to Mr. Karma at the garage.
25. The respondents’ second witness was Ms. Wendy Kowalik who testified that she was a teacher at the school for about 12 years and was HOD and Head of Afrikaans language. In 2020 / 2021 she became a NAPTOSA representative at the school. She knows that the other SGB teachers were retrenched because of Covid – 19 but Mr. Meko and Sonto were retained.
26. In January 2021 Mr. Meko approached her and told her that he wanted to talk to her about something confidential and he told her that in November 2020 Mr. Matloga and Mr. Karma called him to the principals’ office or around the smoking area and asked him to pay them the ‘thank you’ fee for the job.
27. They asked him to pay R6 500, 00 and continued badgering him and he went to the garage to draw from the ATM the money and paid him R6 500, 00. He paid this money to Mr. Karma and Mr. Matloga was not there when the money was paid and subsequent to that payment, they reminded him to pay for the following month.
28. She then contacted Joyce the IDSO of the school and Joyce advised that Mr. Meko needs to open the case with the police. She drove Mr. Meko to the Linden Police Station to open the case and after opening the case he gave her the case number.
29. Mr. Meko told her that Ms. Sonto Lebjane was also a victim as she gave them R4 500.00. The three, Mr Meko, Ms. Sonto Lebjane and Ms. Kowalik went to the restaurant and Ms. Sonto told her that Mr. Matloga and Mr. Karma wanted R4 500. 00 and she had already paid it by them. She reported the matter to Vicky Ackaloo and Ms. Phama about the extortion of money.
30. She stated that she had a good relationship with Mr. Matloga and has no reason to make up a story against him and after she was advised by Joyce she did what Joyce had advised her to do.
31. The third witness of the respondent was Mr. Teddy Moloto who testified that he worked for the respondent as Chief Education Specialist – Gauteng Department of Education and was the presiding officer during the disciplinary hearing of Mr. Matloga and is based at the Gauteng Department of Education Head Office. His duties include presiding on disciplinary hearings and has presided over a number of disciplinary hearings in various district offices.
32. He confirmed that the initiator in the disciplinary hearing is stationed at the Johannesburg North District Office and it is therefore not true that they are based at the same work station but confirmed that the HOD appoints the initiator form the district offices and the Presiding officers from the different district office. He stated that this is a practice that has always been practiced and is not unique to Mr. Matloga’s matter. He denied having discussed the matter with the initiator about Mr. Matloga’s matter.
33. He disputed that he had a mandate from anyone to get rid of Mr Matloga. He denied having responded and assisted Ms. Joyce Legoete nor any witness during the hearing and that there was never a formal application submitted for his recusal in the disciplinary hearing of Mr. Matloga. He denied having tempered with the disciplinary hearing recordings and submitted that no one requested for his Presiding Officer’s report.
34. The fourth witness of the respondent was Ms. Joyce Legoete and she testified that she is the IDSO of the school and the principal reports directly to her. She is responsible for support, curriculum development, and infrastructure and does referrals for those areas that fall outside her scope.
35. She was called by Mr. Matloga to advise him on Mr Mekos’ problem, whether to remain or not as he was flagged because of the misconduct that happened to him at the Free State. She requested Mr. Matloga to call Mr. Meko for her to get some information on the issue. Mr Meko gave her a 2 paged document which spoke about extortion of money and said this was not about the Free State matter as he has been teaching at the school long enough.
36. He said this was about the money they want to extort from him and stated that he was told by Mr. Meko that he was called by the principal Mr. Matloga and Mr. Karma and asked him to pay R6 500, 00 for job security. He complained as he could not afford it and this money was to be shared among the two and the Finance Committee. He told her that money was also taken from Sonto Lebjane and two other ladies in the tuck shop.
37. She was also called by Ms. Wendy Kowalik who spoke about the same matter and she advised Ms. Kowalik to advise Mr. Meko to open the case and make sure to speak to the station commander as they failed the first time. She received a call from Ms. Khosi Phama about the allegations of extortion and requested a report from Ms. Phama. Upon receiving Ms. Pamas’ report she wrote to Labour to investigate the matter.
38. An urgent SGB meeting was also called and the matter was presented by Mr. Matloga and it was concluded that the GDE must investigate the allegations. Ms. Joyce and Mr. Meko denied that they concocted the story and she said that she advised Mr. Meko to open the case as he stated that he was also concerned about his safety.
39. The fifth witness of the respondent was Ms. Eulenda Ramaru who testified that she is Senior Personnel Practitioner in the Johannesburg North District office and has been there since 2015. She was appointed by the HOD to initiate in the disciplinary hearing of Mr Matloga and it is common practice that the HOD – Gauteng Department of Education appoints Presiding Officers from other district offices to preside for different district offices.
40. She disputed that she had a discussion with the Presiding Officer about the matter outside the hearing and also denied that she had a mandate from anyone to dismiss Mr. Matloga. She confirmed that the bank statement for three months period given by Mr. Matloga did not cover the period when he withdrew the alleged extorted money
41. The sixth witness of the respondent was Adv. Nomakhosazana Phama – Sehunu who stated that she was the SGB Treasurer during the time of the allegations 2017 - 2020. About November 2020 she got a call from Mr. Matloga saying that Sonto Lebjane wants to thank her by buying her cold drink and she replied that she only drinks coffee and doesn’t want any cold drink.
42. She was then called by Ms. Sonto and told her that Mr. Matloga said that she (Sonto) wanted to buy her cold-drink and she told her that she must not pay people and Ms. Sonto Lebjane told her that she has already paid R4 500, 00 to Mr. Chris Karma had told her that she Ms. Khosi Pama also wanted payment and Sonto was panicking because she was fearing losing her job.
43. She then called Mr. Matloga who said he does not know anything and went to the school to speak to Ms. Sonto who asked her not to tell anyone about this. She also told her of the other two employees working at the Tuck – shop but they refused to talk and the other one was related to Mr Karma. She called Mr. Meko who confirmed that he was also extorted money by Mr. Matloga and Mr. Karma.
44. The respondent’s representative closed their case and the applicant’s representative called Mr. Matloga the applicant who testified that he used to work at the Franklin D. Rooseveld Primary School as a Principal before he was dismissed by the respondent.
45. He stated that his qualifications are Senior Teachers Diploma obtained in 1997, Advanced Certificate in Education and Honours Degree in Education Management and Administration and has about 20 years’ experience in the teaching profession. He acted as an H.O.D in 2007, became HOD in 2011, Acted as a Principal in 2014, 2016 Deputy Principal and in 2019 acted and appointed a Principal.
46. He started knowing Mr. Meko in 2016 and had a good working relationship with Mr. Meko and they sometimes travel together and talk about everything. The school had temporary vacant posts which were to be filled and SGB candidates including Mr. Meko were asked to apply.
47. He stated that Mr. Meko was appointed against a vacant post in October 2020 and at that point he got a call from Noni from the District Office stating that they cannot process Mr. Mekos’ application because he has been flagged for misconduct that happened whilst he was still at the Free State and that Mr. Meko should have disclosed.
48. He averred that he then called Mr. Meko and first couldn’t get hold of him and when he got hold of him and asked him he indicated that he was aware of the Free State issue and that it related to misconduct based on absconding yet he never absconded but resigned from the employ of the Free State Department of Education and promised to provide documentation to that effect.
49. On the 02nd of November 2020 he called Mr. Meko several times asking him to report for duty and later on the 14th and 15th of December 2022 he failed to report for duty and that he had to call Mr. Meko because all SGB teachers had to sign contracts and he was the only one who had not signed the contract and it was his responsibility to make sure that all contracts are signed. He stated that Mr. Meko had to be contracted for him to get paid and disputed that he wanted money from Mr. Meko and Mr. Meko indicated that he was not feeling well when he was asked why he did not report for duty but he was a habitual absentist.
50. He denied having called Mr Meko to him and Mr Karma in the smoking area closer to his office and also stated that he never discussed the payment of money with Mr. Meko together with Mr. Karma. He argued that Mr Meko did not produce any footage or any recording as evidence of that and that Mr. Meko does not smoke so he would not be in the area. He stated that Mr. Meko does not use that parking lot where his office, parking and the smoking area stated that it was surprising that the two clerks did not hear them as it is too close to hear even when are people whispering.
51. Mr. Matloga alleged that everyone involved in this matter, the GDE HOD, the presiding officer, the initiator, the IDSO and all the witnesses had a mandate to get him dismissed. It is however not clear where this mandate is coming from and further submitted that the police came to him to ask for his statement he denied asking them to produce evidence. He also submitted that he went to the police station where it was confirmed that the case has been opened, it is in the prosecutors’ office waiting for evidence and that he has not been charged.
52. He disputed that he extorted any money from Mr. Meko and also stated that he never benefited any money that was allegedly paid to Mr. Karma by Mr. Meko and that there is absolutely no evidence to support these allegations by Mr. Meko. He instead pointed a number of contradictions in the evidence or testimony of Mr. Meko and reiterated that his story was fabricated. He further questioned the credibility of Mr. Meko based on the evidence he has adduced.
53. He pointed out the there is no statement that he has produced about the money he said he withdrew, no statement or case number from the police, no evidence no pictures or videos taken. He stated that in the notice of appeal or appeal outcome it was stated that he pleaded guilty whereas he never pleaded guilty.
54. He further testified that the respondent’s version is not corroborated and the representative relies on hearsay evidence in a number of arreas raised in the evidence. He stated that he believes all this is a diversion from the educator who failed to disclose previous misconduct that had just surfaced and that there is no evidence linking him to the facilitation of the extortion of money.
55. The second and last witness of the applicant was Mr. Chris Karma who testified that in 2020 he was a member of the SGB and that he knows the applicant because he was the Principal at the same school Rooseveld D. Franklin Senior Primary School. He stated that he also knows Mr. Meko because he was a teacher in the same school.
56. He denied that he together with Mr. Meko called Mr. Meko to the smoking area and demanded payments for the job security for Mr. Meko and denied having received the R6 500, 00 from Mr. Meko on the 20 November 2020 at a garage or anywhere else and that Mr. Meko was never in his car. He also denied that he was robbed and could not share this money with the applicant Mr. Matloga.
57. Mr. Karma disputed driving with Mr. Meko or Ms. Kowalik to get some money from Mr. Meko and described what Mr. Meko was doing as character assassination against him and Mr. Matloga because he was also aware about Mr. Meko’s poor work attendance. He further stated that he is from the same Province – Free State where Mr. Meko is coming from and he wanted him to assist with the misconduct that he had there.
58. The applicant then closed his case.
ANALYSIS OF EVIDENCE AND ARGUMENT
59. Section 185 of the Act provides: -
‘Every employee has the right not to be:
(a) Unfairly dismissed.
60. The Act recognizes three grounds for termination of the employment relationship between parties. These grounds are the conduct of the employee, the capacity of the employee and the operational requirements of the employer’s business. The employer has the onus to prove that the dismissal of the applicant was procedurally and substantively fair.
61. According to my recollection the procedural fairness of the applicant’s dismissal was placed in dispute by the applicants in respect of three issues.
62. That the Chairperson and the initiator discussed and formulated a position on the case before it was presented at the disciplinary hearing.
- This is raised by the applicant because the chairperson and the initiator are appointed by the same person and that there is no evidence that this happened. There is nothing wrong with the HOD appointing both initiator and the chairperson and the applicant cannot just rely on the fact that they are appointed by one person to allege that they have discussed the case.
- This claim on procedural unfairness is accordingly dismissed.
63. That the chairperson assisted the employer witness in answering a questions when he was cross examined by the applicant’s representative.
- This allegation by the applicant is also not based on evidence because even the recording played by the applicant at the arbitration hearing does not reflect or demonstrate that the presiding officer assisted any witness in answering questions.
64. The last procedural issue is that the chairperson refused to recuse himself when he was asked to do so by the applicant’s representative.
- In respect of this point the chairperson testified that there was no application for recusal that was made to him by the applicant’s representative and I have no reason to disbelieve the chairperson because there was nothing that warranted or called for a recusal in this matter.
- Even if there was such an application there it is still within the chairperson’s discretion to consider that application and grant or refuse it, however that discretion must be exercised in a fair, just and a reasonable manner.
65. The applicant was allowed opportunity to state his case and dispute the employer’s case. This is what is expected from the employer as guided in Avril Elizabeth Home for the Mentally Handicapped v/s Commission for Conciliation Mediation and Arbitration & others (2006) 27 ILJ 1644 (LC) where the court makes a point that the Act never expected or intended technical compliance with the procedural aspect of a dismissal dispute. What is required is that an opportunity must be given by the employer to an employee to state his case in response to any allegations made against that employee, which need not be a formal enquiry, it means no more than that there should be dialogue and an opportunity for reflection before any decision is taken to dismiss.
66. This is what happened with the applicant’s dismissal. The applicant was called into a disciplinary hearing, given enough time to prepare his case, clear charges were put to him as I have argued above, and given an opportunity to state their case and to dispute the employer’s case. There is nothing that renders the applicant’s dismissal procedurally unfair.
67. On the substantive issue the applicant denies that he is guilty of the charge leveled against him and summarized in the topic dealing with the background to the issue above and this is an element of substantive disciplinary fairness or unfairness of a dismissal which talks to whether the applicant has broken the rule. The details of the charge for which the applicant has been dismissed for appear in this award in the topic dealing with the background to the issue in paragraph 6. At this stage I must indicate again that the applicant was found not guilty in respect of charge 2 or this charge was withdrawn hence not appearing here and for that reason I will not be dealing with this other charge.
68. I must further mention that in terms of section 192 (2) the respondent bears the onus to prove that the dismissal of the applicants was also substantively far. I shall therefore deal with and evaluate the evidence on the versions of the parties in consideration of this background. This part of the Act is very important because there is no absolution from the instance in labour matters and because of this a dismissal is either fair or unfair and the party that bears the onus carry much more burden of proof than the other party or opponent.
69. The applicant’s representative has referred me to a number of cases dealing with the issue of hearsay evidence as he has observed it in this hearing and those judgments are hereby noted. The issue here relates to a dismissal for misconduct and the question is whether the applicant’s dismissal was fair.
70. Let me remind the parties again about these charge so that we can all follow the analysis and argument below:
- Charge 1 – Prejudicing the Department of Education by facilitating extortion of money in the amount of R6 500 from an SGB – Educator by the name of Mphithizeli Petros Meko.
- This charge alleges that as applicant facilitated the extortion of money from fellow teachers in his school where he was a Principal. This allegedly happened when the employee teacher by the name of Mr. Meko was to be appointed or his contract renewed.
- It is alleged that the amount involved was R6 500, 00 per month to be paid to the applicant or Mr. Karma and be shared by the other members of the SGB involved. The point that I want to make is that this amount is excessively and unreasonably high to be paid continuously by a teacher to a principal without it being discovered and it is therefore highly improbable that the Principal and the SGB members would do this as it is bound to surface.
- The complainant Mr. Meko alleges that he was called to the Principal’s office or the smoking area and to that he has to pay this amount but does not report this immediately as shocking an amount as it is. Mr. Meko agrees to pay this amount allegedly to secure his job and no reasonable person can secure a job by payment of R6 500, 00 per month even if he is afraid of losing his job he would chose to have this resolved once and for all than this alleged arrangement.
- Mr. Meko alleges that he went to an ATM on the 20th of November 2020, withdrew the amount and paid R6 500, 00 to Mr. Karma at an Engen garage nearly but does not produce a simple bank statement that he can obtain easily from the bank as it is his account and this makes it difficult to believe his version.
- When paying this amount to Mr. Kama at the garage he was already unhappy about this but does not organize any form of real evidence to prove this whether video footage or photo or anything and what makes this part more improbable is that he presents contradictory versions on whether this was exchanged or handed over inside the car or outside the car.
- All the witnesses that were called to support the version of the employer with Mr. Meko being the complainant are all witnesses who were told by Mr. Meko what happened and this is where the issue of hearsay evidence come it. Mr. Meko’s story from the begging as described above cannot be believed and this story gets told to the other witnesses, hearsay evidence is generally inadmissible but can be admitted if it corroborates real evidence and here the problem is the above story by Mr. Meko that is not corroborated because it doesn’t sound real.
- Mr. Meko states that he opened a case and no record of the case was produced at this hearing and no case number was produced and no police official was called to testify on the investigation of this matter as it is a pure criminal matter. It is not disputed that the applicant and the complainant Mr. Meko had a good relationship and in fact friends sometimes travelling together and sharing some personal issues and it is highly improbable that this extortion could happen in these circumstances.
- Mr. Matloga’s story that he heard about the previous misconduct of the complainant, his friend from previous employment in the Free State and asked him about it which soured their relationship can easily be believed. He states that he had a responsibility to deal with this issue of non – disclosure and even if they were friends it makes sense to professionally handle an issue like this one.
- Mr. Meko states that he was called by the applicant because he wanted the money and the applicant states that he wanted the complainant Mr. Meko to come to work and sign the contract because he cannot work for the respondent without having signed the contract. This is believable and consistent with the action of someone who has a good relationship with another one.
- I understand that this charge is about facilitating extortion of money but I must say that is there absolutely no evidence that links Mr. Matloga to the receipt of this alleged extorted money and no proof of any benefit he has derived from this alleged act. Mr. Karma testified in this hearing on behalf of Mr. Matloga the applicant and the evidence led to the effect that he did not hand over a share of this money to Mr. Matloga and it is highly improbable that these two would still have this type of a relationship.
- Mr. Meko refers to other employees who have had their money extorted before by the applicant and Mr. Karma and all of them were not called to corroborate the complainant’s version and there was no clear explanation why these employees were not called. Even on a balance of probabilities it is not easy to follow and believe the respondent’s version.
71. In Fidelity Cash Management Service vs Commission for Conciliation Mediation and Arbitration & others Case DA10/05 the Labour Appeal Court held that in considering the totality of circumstances the commissioner would have to answer the question whether dismissal was in all of the circumstances a fair sanction. In answering that question he or she would have to use his or her own sense of fairness.
72. That the commissioner is required to use his or her own sense of justice or fairness to decide the fairness or otherwise of dismissal does not mean that he or she is at liberty to act arbitrarily or capriciously or to be mala fide. He or she is required to make a decision or finding that is reasonable.
73. It is not the opinion of the authorities or what the respondent thinks of what happened in relation to these incidents that should tell us whether the applicant is guilty of a transgression on a balance of probabilities, but evidence that is placed before the Council by the applicants and respondent’s witnesses.
74. Section 192 (2) of the Labour Relations Act 66 of 1995 as amended places the onus on the respondent to prove that there was a valid reason for the dismissal of the applicant and from the evidence that was led at the hearing I am not satisfied that the respondent has managed to discharge such onus.
75. Even though the test is one of a balance of probabilities it does not mean that the employee will just be guilty of a transgression, there must be clear evidence linking the applicant according to his / her acts or omissions. The point is that in order for a dismissal to be fair there must be a valid reason for dismissal at the time of the disciplinary hearing leading to the dismissal of the employee because of the serious nature of the transgression and the fact that the employee has committed such transgression.
76. In this dispute I cannot find any of the two and I reject the employer’s version that the applicant has committed a transgression that is of a serious nature as to warrant a dismissal or any action for that matter as the applicant is not guilty of the charge that was leveled against him.
77. For the reasons mentioned above I found that there was no valid reason for the dismissal of the applicant by the respondent. The Constitutional Court in NEHAWU v/s University of Cape Town (2003) CC reiterated the point that the arbitrator has to weigh the interest of both the employer and the employee in coming to a decision whether the dismissal of the employee was fair or not.
78. In this dispute the interests of the applicant far outweigh the interests of the respondent because I have already said that he has not committed any transgression. It is not in dispute that the applicant had a clean disciplinary record at the time of these allegations and this also counts in favor of the applicants.
79. In Marapula & others v/s Consteen (Pty) Ltd {1999} 8 BLLR 829 (LAC) at 837 C the court said “The onus is on the respondent to prove that the dismissal was fair on a preponderance of probability”. In my opinion, the onus is discharged if the respondent can show, by credible evidence that its version is the most probable and acceptable version.
80. From the evidence and argument summarized above I am satisfied that the respondent has failed to discharge its onus and that the applicant has presented a credible and acceptable version to dispute the employer’s version.
81. The test is one of a balance of probabilities but it does not mean that the employee will escape a guilty finding because he denies everything but there must be clear evidence linking the applicants conduct to the breaking of the rule or transgression. In this dispute there is not enough evidence on a balance of probabilities pointing to the applicant being guilty of the charge preferred against him.
82. Schedule 8 of the Code of Good Practice in the Act requires that the respondent should apply discipline in a corrective and progressive manner and that dismissals should be reserved for most serious transgressions.
83. Item 3 (2) – the courts have endorsed the concept of corrective and progressive discipline. This approach regards the purpose of discipline as a means for the employees to know and understand what standards are required of them. Efforts should be made to correct the employee’s behavior through a system of graduated disciplinary measures such as counseling.
84. Item 3 (3) – formal procedures do not have to be invoked every time a rule is broken or a standard is not met. Informal advice and correction is the best and most effective way for an employer to deal with minor violations of work discipline. Repeated misconduct will warrant warnings, which themselves may be graded according to degrees of severity. More serious infringements or repeated misconduct may call for a final warning, or other action short of dismissal. Dismissal should be reserved for cases of serious misconduct or repeated offences.
85. Item 3 (4) – Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes the continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its own merits, are gross dishonesty or willful damage to property of the employer, willful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination. Whatever the merits of the case for dismissal might be, a dismissal will not be fair if it does not meet the requirements of section 188.
86. There is no evidence or there is nothing that suggests that the respondent has even applied discipline in a corrective and progressive manner in disciplining the applicant in the event that the applicant was guilty of the charges.
87. As already indicated above the applicant’s dismissal was procedurally fair. The employer has failed to discharge its onus in terms of section 192 (2) of the act in so far as the substantive issue is concerned and this means that the applicant’s dismissal was procedurally fair but substantively unfair.
88. Section 188 of the Act requires that a dismissal must not only be for a fair reason, but must also be effected in accordance with a fair procedure. I do not accept the applicant’s version that the employer has not followed a fair procedure and therefore the applicant’s dismissal was procedurally fair.
89. What is left for me to decide is the relief to be granted to the applicant. The applicant has prayed that he be reinstated to his original position and be paid back pay for the period between the date of his dismissal and the effective date of his reinstatement.
90. Having found that the applicant’s dismissal was substantively unfair I feel that reinstatement is appropriate in the circumstances. I do not accept the employer’s argument that the trust relationship between the applicant and the respondent has broken down and that it is not practicable to reinstate as I have argued the substantive issue above.
91. I am also of the opinion that the applicant is entitled to full back pay from the date of dismissal to the date of reinstatement because there is no delay in the finalization of this matter occasioned by him.
92. In the circumstances I therefore make the following award.
AWARD
93. The respondent, Gauteng – Department of Education is ordered to reinstate the applicant Mr. Victor Mothomone Matloga in its employ on the same terms and conditions of service as those that prevailed prior to the applicant’s dismissal.
94. The respondent is also ordered to pay back pay to the applicant in the amount of R225 761, 50 which is an amount equivalent to 5 months’ remuneration calculated at the applicant’s rate of pay per month as at the date of his dismissal on the 20 February 2022 being R45 152, 30.
95. The respondent must reinstate the applicant retrospectively from the date of dismissal.
96. The applicant must report for duty with effect from the 01st of August 2022.
97. The amount referred to in the paragraph above will be paid to the applicant not later than the 20th of August 2022.
Signature:
Commissioner: Malusi Mbuli
Panelists: Malusi Mbuli
Date of Award: 13-07-2022
In the ARBITRATION between
SADTU obo VICTOR MOTHOMONE MATLOGA
(Applicant)
And
GAUTENG - DEPARTMENT OF EDUCATION
(Respondent)
DETAILS OF HEARING AND DETAILS REPRESENTATION
1. The arbitration hearing took place on the 01st, 02nd & 03rd of June 2022, 30th of June 2022 and 01st and 04th of July 2022 virtually.
2. The applicant Mr. Victor Mothimone Matloga was present at the hearing and was represented by Mr. Zolani Mlambo an official of the applicant’s trade union SADTU.
3. The respondent, Gauteng – Department of Education was also present at the hearing and was represented by Mrs. Emily Magadla, an official of the respondent.
4. The arbitration hearing proceeded for the days listed above and was finalized on the 04th of July 2022 and the parties agreed to deliver their closing arguments in writing on or before the 11th of July 2022 and both parties delivered their arguments on time.
ISSUE TO BE DECIDED
5. I am required to determine whether or not the applicant’s dismissal was unfair and if so, the appropriate relief in accordance with Sections 193 and 194 of the Labour Relations Act No 66 of 1995, as amended in 2015.
BACKGROUND TO THE ISSUE
6. The applicant was employed by the respondent as a Principal at Franklin D. Roosevelt Primary School – Gauteng Province. He was dismissed by the respondent on the 20th of February 2022 after he was found guilty at the disciplinary hearing followed by an appeal process on the charge of:
- Charge – Prejudicing the Department of Education by facilitating extortion of money in the amount of R6 500 from an SGB – Educator by the name of Mphithizeli Petros Meko.
7. The applicant denied the allegations leveled against him and argued that his dismissal was substantively unfair. The applicant also disputes the procedural fairness of his dismissal arguing that the chairperson was biased because he and the initiator are appointed and report to the same Gauteng Department of Education.
8. Applicant further argues that the chairperson assisted the employer witness by answering for her and he refused to recuse himself when asked to do so and that the chairperson tempered with the recording and changed it.
9. The applicant then referred a dismissal dispute to the ELRC alleging that the respondent has unfairly dismissed him and the matter was later set down for arbitration hearing and finalized on the 04th of July 2022.
SURVEY OF EVIDENCE
10. The first witness for the respondent was Mr. Mphitizeli Petros Meko who testified that he was employed as an SGB educator at the Franklin D. Rooseveld Primary School from 2013 – 2021 and was an IT coordinator also teaching other subjects and website maintenance.
11. Upon renewing his contract between October and December 2020, he was advised by the principal to apply for the Departmental post of HOD that was left by another teacher at the school. He applied for the said position and Mr. Matloga subsequently told him that he was flagged for misconduct at the Free State.
12. He stated that they used to travel together and talk about a number of things and he then reminded him of the abscondment matter. He told him that he will see what he can do, and told him to write a letter of disclosure and email to him which he did.
13. Before receiving the disclosure letter he was called during break time when he was walking to the staff room at the smoking area by the applicant Mr. Matloga and Mr Chris Karma (the SGB member). He approached them and Mr. Matloga told him that ‘abantu bayakhala abakufuni la because of the misconduct” people are complaining about him.
14. They told him that people must be given something like R6 500, 00 and that this money must be exchanged outside school premises. He stated that he was reluctant to agree and give them the money but he wanted to save his job and he gave the money, an amount of R6 500, 00 to Mr. Kama at the Engen at North Cliff.
15. He was later told by a teacher by the name of Silindile Sibiya that Mr. Matloga and some SGB members were extorting money from employees and that that teacher left the school as she could not take it anymore. On the 20th November 2020, on salary day he switched off his phone deliberately because he knew that Chris Karma will be calling.
16. After school, while busy with other staff members, a cook by the name of Mr. Moses Sebugudi came to him running with a phone and it was Mr. Karma on the phone who told him that he was going to the garage to meet him. Before going to the garage he told Sonnyboy that he was going to give Mr. Karma money and he asked him to go to the garage and take them a photo whilst exchanging money as he was contemplating to make a case.
17. On Monday he met with Mr. Matloga at the parking lot and Mr. Matloga greeted him and asked him what did he do on Friday and he told him that he gave R6 500, 00 to Mr. Chris Karma and Mr. Matloga told him that Mr. Chris Karma told him that he was robbed and he told him that Chris was lying. Mr Matloga was complaining that other members want the money.
18. The next salary was going to be on the 15th of December and Mr. Matloga would call him to his office and remind him about the payment of money. On the pay day he was absent at work because he had flu and Mr. Matloga called him and sent email saying he will no longer be an employee at the school. Mr. Matloga also called his neighbor after he had dropped the phone. Mr. Matloga also called his ex-wife and Mr. Chris Karma was also sending messages and he was ignoring them and did not give them the money.
19. Subsequent to that when he was discussing the issue of the R6 500, 00 he paid with the clerk Sonto she also shared with him that she paid R4 500, 00 apparently at the same spot. Sonto liaised him with Ms. Khosi Phama, the SGB treasurer and Ms. Khosi Phama said they should not give these people money because Mr. Matloga is getting a lot of money.
20. After the re-opening of schools the following year he was intimidated that he was no longer an employee and now moved from the contract issue to the misconduct in the Free State issue and at this point he contacted Ms. Kowalik, the NAPTOSA representative. He together with Ms. Sonto made an arrangement to go and tell Ms. Wendy Kowalik of what happened and met her at a restaurant and told her.
21. Mr. Meko made a commitment to expose this and he escalated the matter to the IDSO and SAPS and the IDSO came to school, he narrated everything to her and gave her the case number and told her about other people though they were afraid to talk. He stated that he had to think about many things before he could take any action against this as he was not happy about the extortion. He stated that he did not record Mr. Matloga and Mr. Karma at the smoking area because he did not know what they were calling him for and what they were going to say to him. He stated that everything happened in a hit of a moment.
22. At the garage he said that he attempted to get the footage of him giving Mr. Karma the money but was told that the time has lapsed (for the footage to be recovered). He gave contradictory statements on whether the exchange of this money was inside the car or he was standing outside of the car by the car window.
23. He confirmed that Sonnyboy Twala whom he asked to follow them didn’t come through to the garage and take them pictures when giving Mr. Karma money and he thinks that Mr. Twala did not understand him as said he thought or heard that the exchange of money will be happening at the school.
24. He submitted that he never gave Mr. Matloga money but that Mr. Matloga was part and parcel of the benefiaries even though there was no evidence of this allegation. He stated that Mr. Matloga facilitated the whole process even though he was not there at the garage when the R6 500, 00 was paid to Mr. Karma at the garage.
25. The respondents’ second witness was Ms. Wendy Kowalik who testified that she was a teacher at the school for about 12 years and was HOD and Head of Afrikaans language. In 2020 / 2021 she became a NAPTOSA representative at the school. She knows that the other SGB teachers were retrenched because of Covid – 19 but Mr. Meko and Sonto were retained.
26. In January 2021 Mr. Meko approached her and told her that he wanted to talk to her about something confidential and he told her that in November 2020 Mr. Matloga and Mr. Karma called him to the principals’ office or around the smoking area and asked him to pay them the ‘thank you’ fee for the job.
27. They asked him to pay R6 500, 00 and continued badgering him and he went to the garage to draw from the ATM the money and paid him R6 500, 00. He paid this money to Mr. Karma and Mr. Matloga was not there when the money was paid and subsequent to that payment, they reminded him to pay for the following month.
28. She then contacted Joyce the IDSO of the school and Joyce advised that Mr. Meko needs to open the case with the police. She drove Mr. Meko to the Linden Police Station to open the case and after opening the case he gave her the case number.
29. Mr. Meko told her that Ms. Sonto Lebjane was also a victim as she gave them R4 500.00. The three, Mr Meko, Ms. Sonto Lebjane and Ms. Kowalik went to the restaurant and Ms. Sonto told her that Mr. Matloga and Mr. Karma wanted R4 500. 00 and she had already paid it by them. She reported the matter to Vicky Ackaloo and Ms. Phama about the extortion of money.
30. She stated that she had a good relationship with Mr. Matloga and has no reason to make up a story against him and after she was advised by Joyce she did what Joyce had advised her to do.
31. The third witness of the respondent was Mr. Teddy Moloto who testified that he worked for the respondent as Chief Education Specialist – Gauteng Department of Education and was the presiding officer during the disciplinary hearing of Mr. Matloga and is based at the Gauteng Department of Education Head Office. His duties include presiding on disciplinary hearings and has presided over a number of disciplinary hearings in various district offices.
32. He confirmed that the initiator in the disciplinary hearing is stationed at the Johannesburg North District Office and it is therefore not true that they are based at the same work station but confirmed that the HOD appoints the initiator form the district offices and the Presiding officers from the different district office. He stated that this is a practice that has always been practiced and is not unique to Mr. Matloga’s matter. He denied having discussed the matter with the initiator about Mr. Matloga’s matter.
33. He disputed that he had a mandate from anyone to get rid of Mr Matloga. He denied having responded and assisted Ms. Joyce Legoete nor any witness during the hearing and that there was never a formal application submitted for his recusal in the disciplinary hearing of Mr. Matloga. He denied having tempered with the disciplinary hearing recordings and submitted that no one requested for his Presiding Officer’s report.
34. The fourth witness of the respondent was Ms. Joyce Legoete and she testified that she is the IDSO of the school and the principal reports directly to her. She is responsible for support, curriculum development, and infrastructure and does referrals for those areas that fall outside her scope.
35. She was called by Mr. Matloga to advise him on Mr Mekos’ problem, whether to remain or not as he was flagged because of the misconduct that happened to him at the Free State. She requested Mr. Matloga to call Mr. Meko for her to get some information on the issue. Mr Meko gave her a 2 paged document which spoke about extortion of money and said this was not about the Free State matter as he has been teaching at the school long enough.
36. He said this was about the money they want to extort from him and stated that he was told by Mr. Meko that he was called by the principal Mr. Matloga and Mr. Karma and asked him to pay R6 500, 00 for job security. He complained as he could not afford it and this money was to be shared among the two and the Finance Committee. He told her that money was also taken from Sonto Lebjane and two other ladies in the tuck shop.
37. She was also called by Ms. Wendy Kowalik who spoke about the same matter and she advised Ms. Kowalik to advise Mr. Meko to open the case and make sure to speak to the station commander as they failed the first time. She received a call from Ms. Khosi Phama about the allegations of extortion and requested a report from Ms. Phama. Upon receiving Ms. Pamas’ report she wrote to Labour to investigate the matter.
38. An urgent SGB meeting was also called and the matter was presented by Mr. Matloga and it was concluded that the GDE must investigate the allegations. Ms. Joyce and Mr. Meko denied that they concocted the story and she said that she advised Mr. Meko to open the case as he stated that he was also concerned about his safety.
39. The fifth witness of the respondent was Ms. Eulenda Ramaru who testified that she is Senior Personnel Practitioner in the Johannesburg North District office and has been there since 2015. She was appointed by the HOD to initiate in the disciplinary hearing of Mr Matloga and it is common practice that the HOD – Gauteng Department of Education appoints Presiding Officers from other district offices to preside for different district offices.
40. She disputed that she had a discussion with the Presiding Officer about the matter outside the hearing and also denied that she had a mandate from anyone to dismiss Mr. Matloga. She confirmed that the bank statement for three months period given by Mr. Matloga did not cover the period when he withdrew the alleged extorted money
41. The sixth witness of the respondent was Adv. Nomakhosazana Phama – Sehunu who stated that she was the SGB Treasurer during the time of the allegations 2017 - 2020. About November 2020 she got a call from Mr. Matloga saying that Sonto Lebjane wants to thank her by buying her cold drink and she replied that she only drinks coffee and doesn’t want any cold drink.
42. She was then called by Ms. Sonto and told her that Mr. Matloga said that she (Sonto) wanted to buy her cold-drink and she told her that she must not pay people and Ms. Sonto Lebjane told her that she has already paid R4 500, 00 to Mr. Chris Karma had told her that she Ms. Khosi Pama also wanted payment and Sonto was panicking because she was fearing losing her job.
43. She then called Mr. Matloga who said he does not know anything and went to the school to speak to Ms. Sonto who asked her not to tell anyone about this. She also told her of the other two employees working at the Tuck – shop but they refused to talk and the other one was related to Mr Karma. She called Mr. Meko who confirmed that he was also extorted money by Mr. Matloga and Mr. Karma.
44. The respondent’s representative closed their case and the applicant’s representative called Mr. Matloga the applicant who testified that he used to work at the Franklin D. Rooseveld Primary School as a Principal before he was dismissed by the respondent.
45. He stated that his qualifications are Senior Teachers Diploma obtained in 1997, Advanced Certificate in Education and Honours Degree in Education Management and Administration and has about 20 years’ experience in the teaching profession. He acted as an H.O.D in 2007, became HOD in 2011, Acted as a Principal in 2014, 2016 Deputy Principal and in 2019 acted and appointed a Principal.
46. He started knowing Mr. Meko in 2016 and had a good working relationship with Mr. Meko and they sometimes travel together and talk about everything. The school had temporary vacant posts which were to be filled and SGB candidates including Mr. Meko were asked to apply.
47. He stated that Mr. Meko was appointed against a vacant post in October 2020 and at that point he got a call from Noni from the District Office stating that they cannot process Mr. Mekos’ application because he has been flagged for misconduct that happened whilst he was still at the Free State and that Mr. Meko should have disclosed.
48. He averred that he then called Mr. Meko and first couldn’t get hold of him and when he got hold of him and asked him he indicated that he was aware of the Free State issue and that it related to misconduct based on absconding yet he never absconded but resigned from the employ of the Free State Department of Education and promised to provide documentation to that effect.
49. On the 02nd of November 2020 he called Mr. Meko several times asking him to report for duty and later on the 14th and 15th of December 2022 he failed to report for duty and that he had to call Mr. Meko because all SGB teachers had to sign contracts and he was the only one who had not signed the contract and it was his responsibility to make sure that all contracts are signed. He stated that Mr. Meko had to be contracted for him to get paid and disputed that he wanted money from Mr. Meko and Mr. Meko indicated that he was not feeling well when he was asked why he did not report for duty but he was a habitual absentist.
50. He denied having called Mr Meko to him and Mr Karma in the smoking area closer to his office and also stated that he never discussed the payment of money with Mr. Meko together with Mr. Karma. He argued that Mr Meko did not produce any footage or any recording as evidence of that and that Mr. Meko does not smoke so he would not be in the area. He stated that Mr. Meko does not use that parking lot where his office, parking and the smoking area stated that it was surprising that the two clerks did not hear them as it is too close to hear even when are people whispering.
51. Mr. Matloga alleged that everyone involved in this matter, the GDE HOD, the presiding officer, the initiator, the IDSO and all the witnesses had a mandate to get him dismissed. It is however not clear where this mandate is coming from and further submitted that the police came to him to ask for his statement he denied asking them to produce evidence. He also submitted that he went to the police station where it was confirmed that the case has been opened, it is in the prosecutors’ office waiting for evidence and that he has not been charged.
52. He disputed that he extorted any money from Mr. Meko and also stated that he never benefited any money that was allegedly paid to Mr. Karma by Mr. Meko and that there is absolutely no evidence to support these allegations by Mr. Meko. He instead pointed a number of contradictions in the evidence or testimony of Mr. Meko and reiterated that his story was fabricated. He further questioned the credibility of Mr. Meko based on the evidence he has adduced.
53. He pointed out the there is no statement that he has produced about the money he said he withdrew, no statement or case number from the police, no evidence no pictures or videos taken. He stated that in the notice of appeal or appeal outcome it was stated that he pleaded guilty whereas he never pleaded guilty.
54. He further testified that the respondent’s version is not corroborated and the representative relies on hearsay evidence in a number of arreas raised in the evidence. He stated that he believes all this is a diversion from the educator who failed to disclose previous misconduct that had just surfaced and that there is no evidence linking him to the facilitation of the extortion of money.
55. The second and last witness of the applicant was Mr. Chris Karma who testified that in 2020 he was a member of the SGB and that he knows the applicant because he was the Principal at the same school Rooseveld D. Franklin Senior Primary School. He stated that he also knows Mr. Meko because he was a teacher in the same school.
56. He denied that he together with Mr. Meko called Mr. Meko to the smoking area and demanded payments for the job security for Mr. Meko and denied having received the R6 500, 00 from Mr. Meko on the 20 November 2020 at a garage or anywhere else and that Mr. Meko was never in his car. He also denied that he was robbed and could not share this money with the applicant Mr. Matloga.
57. Mr. Karma disputed driving with Mr. Meko or Ms. Kowalik to get some money from Mr. Meko and described what Mr. Meko was doing as character assassination against him and Mr. Matloga because he was also aware about Mr. Meko’s poor work attendance. He further stated that he is from the same Province – Free State where Mr. Meko is coming from and he wanted him to assist with the misconduct that he had there.
58. The applicant then closed his case.
ANALYSIS OF EVIDENCE AND ARGUMENT
59. Section 185 of the Act provides: -
‘Every employee has the right not to be:
(a) Unfairly dismissed.
60. The Act recognizes three grounds for termination of the employment relationship between parties. These grounds are the conduct of the employee, the capacity of the employee and the operational requirements of the employer’s business. The employer has the onus to prove that the dismissal of the applicant was procedurally and substantively fair.
61. According to my recollection the procedural fairness of the applicant’s dismissal was placed in dispute by the applicants in respect of three issues.
62. That the Chairperson and the initiator discussed and formulated a position on the case before it was presented at the disciplinary hearing.
- This is raised by the applicant because the chairperson and the initiator are appointed by the same person and that there is no evidence that this happened. There is nothing wrong with the HOD appointing both initiator and the chairperson and the applicant cannot just rely on the fact that they are appointed by one person to allege that they have discussed the case.
- This claim on procedural unfairness is accordingly dismissed.
63. That the chairperson assisted the employer witness in answering a questions when he was cross examined by the applicant’s representative.
- This allegation by the applicant is also not based on evidence because even the recording played by the applicant at the arbitration hearing does not reflect or demonstrate that the presiding officer assisted any witness in answering questions.
64. The last procedural issue is that the chairperson refused to recuse himself when he was asked to do so by the applicant’s representative.
- In respect of this point the chairperson testified that there was no application for recusal that was made to him by the applicant’s representative and I have no reason to disbelieve the chairperson because there was nothing that warranted or called for a recusal in this matter.
- Even if there was such an application there it is still within the chairperson’s discretion to consider that application and grant or refuse it, however that discretion must be exercised in a fair, just and a reasonable manner.
65. The applicant was allowed opportunity to state his case and dispute the employer’s case. This is what is expected from the employer as guided in Avril Elizabeth Home for the Mentally Handicapped v/s Commission for Conciliation Mediation and Arbitration & others (2006) 27 ILJ 1644 (LC) where the court makes a point that the Act never expected or intended technical compliance with the procedural aspect of a dismissal dispute. What is required is that an opportunity must be given by the employer to an employee to state his case in response to any allegations made against that employee, which need not be a formal enquiry, it means no more than that there should be dialogue and an opportunity for reflection before any decision is taken to dismiss.
66. This is what happened with the applicant’s dismissal. The applicant was called into a disciplinary hearing, given enough time to prepare his case, clear charges were put to him as I have argued above, and given an opportunity to state their case and to dispute the employer’s case. There is nothing that renders the applicant’s dismissal procedurally unfair.
67. On the substantive issue the applicant denies that he is guilty of the charge leveled against him and summarized in the topic dealing with the background to the issue above and this is an element of substantive disciplinary fairness or unfairness of a dismissal which talks to whether the applicant has broken the rule. The details of the charge for which the applicant has been dismissed for appear in this award in the topic dealing with the background to the issue in paragraph 6. At this stage I must indicate again that the applicant was found not guilty in respect of charge 2 or this charge was withdrawn hence not appearing here and for that reason I will not be dealing with this other charge.
68. I must further mention that in terms of section 192 (2) the respondent bears the onus to prove that the dismissal of the applicants was also substantively far. I shall therefore deal with and evaluate the evidence on the versions of the parties in consideration of this background. This part of the Act is very important because there is no absolution from the instance in labour matters and because of this a dismissal is either fair or unfair and the party that bears the onus carry much more burden of proof than the other party or opponent.
69. The applicant’s representative has referred me to a number of cases dealing with the issue of hearsay evidence as he has observed it in this hearing and those judgments are hereby noted. The issue here relates to a dismissal for misconduct and the question is whether the applicant’s dismissal was fair.
70. Let me remind the parties again about these charge so that we can all follow the analysis and argument below:
- Charge 1 – Prejudicing the Department of Education by facilitating extortion of money in the amount of R6 500 from an SGB – Educator by the name of Mphithizeli Petros Meko.
- This charge alleges that as applicant facilitated the extortion of money from fellow teachers in his school where he was a Principal. This allegedly happened when the employee teacher by the name of Mr. Meko was to be appointed or his contract renewed.
- It is alleged that the amount involved was R6 500, 00 per month to be paid to the applicant or Mr. Karma and be shared by the other members of the SGB involved. The point that I want to make is that this amount is excessively and unreasonably high to be paid continuously by a teacher to a principal without it being discovered and it is therefore highly improbable that the Principal and the SGB members would do this as it is bound to surface.
- The complainant Mr. Meko alleges that he was called to the Principal’s office or the smoking area and to that he has to pay this amount but does not report this immediately as shocking an amount as it is. Mr. Meko agrees to pay this amount allegedly to secure his job and no reasonable person can secure a job by payment of R6 500, 00 per month even if he is afraid of losing his job he would chose to have this resolved once and for all than this alleged arrangement.
- Mr. Meko alleges that he went to an ATM on the 20th of November 2020, withdrew the amount and paid R6 500, 00 to Mr. Karma at an Engen garage nearly but does not produce a simple bank statement that he can obtain easily from the bank as it is his account and this makes it difficult to believe his version.
- When paying this amount to Mr. Kama at the garage he was already unhappy about this but does not organize any form of real evidence to prove this whether video footage or photo or anything and what makes this part more improbable is that he presents contradictory versions on whether this was exchanged or handed over inside the car or outside the car.
- All the witnesses that were called to support the version of the employer with Mr. Meko being the complainant are all witnesses who were told by Mr. Meko what happened and this is where the issue of hearsay evidence come it. Mr. Meko’s story from the begging as described above cannot be believed and this story gets told to the other witnesses, hearsay evidence is generally inadmissible but can be admitted if it corroborates real evidence and here the problem is the above story by Mr. Meko that is not corroborated because it doesn’t sound real.
- Mr. Meko states that he opened a case and no record of the case was produced at this hearing and no case number was produced and no police official was called to testify on the investigation of this matter as it is a pure criminal matter. It is not disputed that the applicant and the complainant Mr. Meko had a good relationship and in fact friends sometimes travelling together and sharing some personal issues and it is highly improbable that this extortion could happen in these circumstances.
- Mr. Matloga’s story that he heard about the previous misconduct of the complainant, his friend from previous employment in the Free State and asked him about it which soured their relationship can easily be believed. He states that he had a responsibility to deal with this issue of non – disclosure and even if they were friends it makes sense to professionally handle an issue like this one.
- Mr. Meko states that he was called by the applicant because he wanted the money and the applicant states that he wanted the complainant Mr. Meko to come to work and sign the contract because he cannot work for the respondent without having signed the contract. This is believable and consistent with the action of someone who has a good relationship with another one.
- I understand that this charge is about facilitating extortion of money but I must say that is there absolutely no evidence that links Mr. Matloga to the receipt of this alleged extorted money and no proof of any benefit he has derived from this alleged act. Mr. Karma testified in this hearing on behalf of Mr. Matloga the applicant and the evidence led to the effect that he did not hand over a share of this money to Mr. Matloga and it is highly improbable that these two would still have this type of a relationship.
- Mr. Meko refers to other employees who have had their money extorted before by the applicant and Mr. Karma and all of them were not called to corroborate the complainant’s version and there was no clear explanation why these employees were not called. Even on a balance of probabilities it is not easy to follow and believe the respondent’s version.
71. In Fidelity Cash Management Service vs Commission for Conciliation Mediation and Arbitration & others Case DA10/05 the Labour Appeal Court held that in considering the totality of circumstances the commissioner would have to answer the question whether dismissal was in all of the circumstances a fair sanction. In answering that question he or she would have to use his or her own sense of fairness.
72. That the commissioner is required to use his or her own sense of justice or fairness to decide the fairness or otherwise of dismissal does not mean that he or she is at liberty to act arbitrarily or capriciously or to be mala fide. He or she is required to make a decision or finding that is reasonable.
73. It is not the opinion of the authorities or what the respondent thinks of what happened in relation to these incidents that should tell us whether the applicant is guilty of a transgression on a balance of probabilities, but evidence that is placed before the Council by the applicants and respondent’s witnesses.
74. Section 192 (2) of the Labour Relations Act 66 of 1995 as amended places the onus on the respondent to prove that there was a valid reason for the dismissal of the applicant and from the evidence that was led at the hearing I am not satisfied that the respondent has managed to discharge such onus.
75. Even though the test is one of a balance of probabilities it does not mean that the employee will just be guilty of a transgression, there must be clear evidence linking the applicant according to his / her acts or omissions. The point is that in order for a dismissal to be fair there must be a valid reason for dismissal at the time of the disciplinary hearing leading to the dismissal of the employee because of the serious nature of the transgression and the fact that the employee has committed such transgression.
76. In this dispute I cannot find any of the two and I reject the employer’s version that the applicant has committed a transgression that is of a serious nature as to warrant a dismissal or any action for that matter as the applicant is not guilty of the charge that was leveled against him.
77. For the reasons mentioned above I found that there was no valid reason for the dismissal of the applicant by the respondent. The Constitutional Court in NEHAWU v/s University of Cape Town (2003) CC reiterated the point that the arbitrator has to weigh the interest of both the employer and the employee in coming to a decision whether the dismissal of the employee was fair or not.
78. In this dispute the interests of the applicant far outweigh the interests of the respondent because I have already said that he has not committed any transgression. It is not in dispute that the applicant had a clean disciplinary record at the time of these allegations and this also counts in favor of the applicants.
79. In Marapula & others v/s Consteen (Pty) Ltd {1999} 8 BLLR 829 (LAC) at 837 C the court said “The onus is on the respondent to prove that the dismissal was fair on a preponderance of probability”. In my opinion, the onus is discharged if the respondent can show, by credible evidence that its version is the most probable and acceptable version.
80. From the evidence and argument summarized above I am satisfied that the respondent has failed to discharge its onus and that the applicant has presented a credible and acceptable version to dispute the employer’s version.
81. The test is one of a balance of probabilities but it does not mean that the employee will escape a guilty finding because he denies everything but there must be clear evidence linking the applicants conduct to the breaking of the rule or transgression. In this dispute there is not enough evidence on a balance of probabilities pointing to the applicant being guilty of the charge preferred against him.
82. Schedule 8 of the Code of Good Practice in the Act requires that the respondent should apply discipline in a corrective and progressive manner and that dismissals should be reserved for most serious transgressions.
83. Item 3 (2) – the courts have endorsed the concept of corrective and progressive discipline. This approach regards the purpose of discipline as a means for the employees to know and understand what standards are required of them. Efforts should be made to correct the employee’s behavior through a system of graduated disciplinary measures such as counseling.
84. Item 3 (3) – formal procedures do not have to be invoked every time a rule is broken or a standard is not met. Informal advice and correction is the best and most effective way for an employer to deal with minor violations of work discipline. Repeated misconduct will warrant warnings, which themselves may be graded according to degrees of severity. More serious infringements or repeated misconduct may call for a final warning, or other action short of dismissal. Dismissal should be reserved for cases of serious misconduct or repeated offences.
85. Item 3 (4) – Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes the continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its own merits, are gross dishonesty or willful damage to property of the employer, willful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination. Whatever the merits of the case for dismissal might be, a dismissal will not be fair if it does not meet the requirements of section 188.
86. There is no evidence or there is nothing that suggests that the respondent has even applied discipline in a corrective and progressive manner in disciplining the applicant in the event that the applicant was guilty of the charges.
87. As already indicated above the applicant’s dismissal was procedurally fair. The employer has failed to discharge its onus in terms of section 192 (2) of the act in so far as the substantive issue is concerned and this means that the applicant’s dismissal was procedurally fair but substantively unfair.
88. Section 188 of the Act requires that a dismissal must not only be for a fair reason, but must also be effected in accordance with a fair procedure. I do not accept the applicant’s version that the employer has not followed a fair procedure and therefore the applicant’s dismissal was procedurally fair.
89. What is left for me to decide is the relief to be granted to the applicant. The applicant has prayed that he be reinstated to his original position and be paid back pay for the period between the date of his dismissal and the effective date of his reinstatement.
90. Having found that the applicant’s dismissal was substantively unfair I feel that reinstatement is appropriate in the circumstances. I do not accept the employer’s argument that the trust relationship between the applicant and the respondent has broken down and that it is not practicable to reinstate as I have argued the substantive issue above.
91. I am also of the opinion that the applicant is entitled to full back pay from the date of dismissal to the date of reinstatement because there is no delay in the finalization of this matter occasioned by him.
92. In the circumstances I therefore make the following award.
AWARD
93. The respondent, Gauteng – Department of Education is ordered to reinstate the applicant Mr. Victor Mothomone Matloga in its employ on the same terms and conditions of service as those that prevailed prior to the applicant’s dismissal.
94. The respondent is also ordered to pay back pay to the applicant in the amount of R225 761, 50 which is an amount equivalent to 5 months’ remuneration calculated at the applicant’s rate of pay per month as at the date of his dismissal on the 20 February 2022 being R45 152, 30.
95. The respondent must reinstate the applicant retrospectively from the date of dismissal.
96. The applicant must report for duty with effect from the 01st of August 2022.
97. The amount referred to in the paragraph above will be paid to the applicant not later than the 20th of August 2022.
Signature:
Commissioner: Malusi Mbuli