PSES314-18/19EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT GRAHAMSTOWN / MAKHANDA
Case No PSES314-18/19EC
In the matter between

Z Dayile Applicant

and

Provincial Department of Education: Eastern Cape Respondent


ARBITRATION AWARD


ARBITRATOR: JC Robertson

HEARD: 2019 03 26; 2019 06 14,19; 2019 07 01,02,03; 2019 07 26; 2019 08 07,08,15,16; 2019 09 30; 2019 11 13,14,15; 2019 12 11,12; 2020 03 05,06; 2020 04 28,29,30; 2020 07 16,17; 2020 08 06; 2020 08 26; 2020 09 16, 2020 09 23; 2020 10 14; 2020 11 11; 2020 12 02; 2021 03 03,04; 2021 06 04; 2021 06 17; 2021 07 05,06; 2021 07 28,29; 2021 08 19; 2021 09 16; 2021 10 11,12; 2021 11 08.09; 2021 11 18; 2022 02 15, 16.

FINALISED: 26 July 2022


SUMMARY: Labour Relations Act 66 of 1995 – Section 186(1)(a) – Unfair Dismissal Dispute; Misconduct and / or gross dereliction relating to incidents during the period 2010-2015; Fraud and / negligent misrepresentation during 2011 relating to claims for fuel allowance.


Details of hearing and representation
1. This matter was referred for arbitration to the Education Labour Relations Council (ELRC) in terms of section 191(5)(a)(i) of the Labour Relations Act, No 66 of 1995 (LRA). Initially the hearings were held at the Education Leadership Institute, Sterling East London. Following on claims by the witness, Mr Mpendu, at the time (01 July 2019), that he felt intimidated by the presence of various persons gathered at the Institute, the parties arranged for the matter to be heard at the offices of Smith Tabata attorneys, 12 St Helena Street, Beacon Bay, East London. With the advent of the covid pandemic, hearings were then conducted via the zoom digital portal until 18 November 2021, whereafter the hearings were held at the boardroom of the respondent’s representative, 13 Tecoma Street, Berea, East London, respectively and on the dates set out above. Mr J Mama of Java Mama Attorneys represented Mr Zama Dayile (the applicant). Adv S Collett instructed by the State Attorney, East London, represented the Provincial Department of Education: Eastern Cape (the Respondent). Mr D Kova acted as interpreter. The proceedings were digitally recorded. The matter was finalised on 25 March 2022 when the parties submitted written closing arguments. I requested an extension to submit my award.

The issue to be determined
2. I am required to determine whether the dismissal of the applicant was substantively fair, and if not, to determine appropriate relief.

Background
3. The applicant commenced employment with the respondent (the Provincial Department of Education Eastern Cape), in 1994 as an educator. As from 1 May 2007, the applicant was employed by the respondent as a Chief Education Specialist (CES), Human Resource Development & Labour Relations (HRD &LR), at the Fort Beaufort District Office.

4. The applicant was charged, during February 2016, with several counts of misconduct. The charges related to incidents over the period 2010-2012 and 2014 / 2015 as set out in Schedule 1 hereto . The applicant pleaded not guilty to all of the charges at his disciplinary inquiry. He was found guilty on all charges and dismissed. His appeal was unsuccessful, his effective date of dismissal was 29 May 2018. At the time of his dismissal, the applicant earned a salary of R 67 553.14 .

5. The applicant referred a dispute to the ELRC seeking as relief that he be reinstated, together with backpay, from the date of his dismissal. The respondent sought that the status quo ante remains. The matter was not resolved at conciliation and proceeded to arbitration.

6. The parties handed up various bundles of documents, at the arbitration hearing, on the basis of what they purport to be, the arbitrator not to take cognizance of documents in respect of which no witness testified, as follows:
6.1 Respondent: Exhibit A1-A312
Exhibit A132(A)-A132(C)
Exhibit A174(A)-A174(D)
Exhibit A176(A)-A176(C)
Exhibit A224(A)-A224(B)
Exhibit A235(A)-A235(C)
Exhibit A261(A)-A261(C)
Exhibit A312(A)-A312(R)
Exhibit B1-B74
Exhibit B103-B113
Transcript (T) of the disciplinary inquiry (1197 pages)
6.2 Applicant: Exhibit A176(D)-A176(P)
Exhibit A294(A)-A294(J)
Exhibit B75-B102
Exhibit B114-B119
Exhibit C-Grievance Procedure
Exhibit D-Discipline Procedure
Exhibit E -Excerpts PMDS Handbook

7. I shall refer to the documents, where necessary as A1, A24, B23-B25, C, D, E and T300 etc.

Survey of evidence and argument
The Respondent’s Submissions
8 The respondent led the following witnesses and closed its case:
Mr Thobile Charles Mpendu: Senior Personnel Officer, HR Unit, Fort Beaufort, District Office, Department of Education: Eastern Cape. Member of NEHAWU. (Charges 6.1, 6.2.1, 6.2.2, 6.2.4, 6.3, 6.4.1, 6.4.2 and 6.5)
Mr Sihle Mnguni: Director Labour Relations, Zwelitsha Head Office, Department of Education: Eastern Cape. At the time in question, Chief Education Specialist (CES) for Human Resources Department and Labour Relations in East London District, from 2008 to November 2012 and Acting Director, East London District November 2012 to March 2017. (Charges In general & 6.1, 6.1.1, 6.1.5, 6.1.6, 6.1.7, 6.1.8, 6.2.1, 6.2.4, 6.4.1)
Mr Thembela Ndzandze: Working as Administrative Clerk at Integrated Quality Management (IQMS) at the time in question reporting to Ms Lombard, and since 2013 Personal assistant to District Director, Mr Stofile. (Charges 6.1.5, 6.1.7, 6.1.8, 6.2.4)
Mr Luyambile Michael Ngalo: Admin Clerk, Fort Beaufort District Office, Department of Education: Eastern Cape. Office Bearer / Chairperson, NEHAWU 2010 – 2015. (Charges 6.1, 6.1.5, 6.1.6, 6.1.7, 6.1.8, 6.2.1, 6.2.2, 6.2.3, 6.2.4, 6.3/6.4, 6.4.1,6.5)
Ms Jean Lombard: Education District Officer (EDO), Fort Beaufort, District Office and also Integrated Quality Management System (IQMS) Coordinator 2007-2011. 2011 translated to EDO and exited the department 31 December 2015. (Charge 6.1.5, 6.1.7, 6.1.8, 6.3, 6.4.2)
Mr Siwelile Cwelana: Chief Provisioning Administrative Clerk at Asset & Fleet Management, Fort Beaufort District Office, since 19 January 2009. (Charge 6.5)
Ms Zuzole Unathi Mncono: Administrative Clerk, Fort Beaufort, Amathole West, District Office. (Charge 6.5)
José Daniel Valiathazhyl: Retired. Deputy Director: Conditions of Service & Staff Appointments, Department of Education, Eastern Cape, Head office, Zwelitsha. (Charge 6.5)

Mr Ntsikelelo Vazi: Director for School Health Safety and Learner Enrichment. At the time of the Vazi Commission he was Director, Institutional Development, Support & Governance. (Testified in general & Charges 6.1.2, 6.1.5 & 6.3)
Ms Rosalind Pendrigh: Deputy Director Leave Management, Department of Education, Eastern Cape, Head Office, Zwelitsha. (Charge 6.5)

Mr N Tom: No longer in the employ of the respondent. During April 2012 – end May 2013, Acting District Director, Fort Beaufort District. Originally a member of SADTU in 2012 and joined NEHAWU late 2012 as he was then office based. (Testified in general and to Charge 6.3)

Mr Stephanus Francois Louw: Self Employed as a Private Investigator. (Charge 6.5).

Mr Loyiso Mgidi: Deputy Chief Education Specialist (DCES) Examinations. (Charge 6.5)

Mr Dirk Andries Hanekom: Acting Circuit Management Centre Head, of Buffalo City District based in East London. (Charge 6.5)

Ms Hlumisa Solomon: At the time Deputy Director Finance, Chief Financial Officer, Fort Beaufort District, currently Deputy Director, Institutional Development & Service Delivery, stationed at Department of Education, Eastern Cape, Head office under Chief Directorate Institutional Operations Management. (Charge 6.1, 6.2, 6.3 and 6.4)

9 The respondent led no evidence on charge 6.6. It was the respondent’s case that it had discharged the onus, on a balance of probabilities, that the applicant was guilty as charged (except for charge 6.6) and that accordingly his dismissal was substantively fair.

The Applicant’s Submissions
10 The applicant held the view that no case had been made out which he was required to meet. He accordingly elected not to testify and closed his case. The applicant sought that he be reinstated in his employment from the date of his dismissal (31 May 2018) together with all backpay.

Analysis of evidence and argument
11 The parties have both presented comprehensive written closing arguments (Applicant 44 pages, Respondent 105 pages). My thanks to the parties’ representatives for the comprehensive nature of their respective written arguments. I do not intend to refer to all aspects of their respective arguments, nevertheless I have considered them and they are filed of record. The number of witnesses who testified and the extent of their testimony and that they covered different combinations of the charges, respectively, together with the wide range of events and time periods covered by the charges, would if all were covered in this award, obscure the issues in the myriad of events testified to by the various respondent’s witnesses. Suffice it to say that I have considered all the evidence and argument, but because the Labour Relations Act no. 66 of 1995 (LRA) requires brief reasons (Section 138 (7)), I have only referred to the evidence and argument necessary to substantiate my finding/s and award.

12 The LRA provides that an employee may not be unfairly dismissed , and that a dismissal includes the situation where an employer terminated employment with or without notice . Further that [i]n any proceedings concerning any dismissal, the employee must establish the existence of the dismissal and that [i]f the existence of the dismissal is established, the employer must prove that the dismissal is fair . In terms of Section 188 of the LRA, a dismissal is unfair if the employer fails to prove that the reason for dismissal is a fair reason (substantive fairness) and that it was arrived at in accordance with a fair procedure (procedural fairness), taking into account any relevant code of good practice issued in terms of the LRA . Schedule 8 of the LRA, the Code of Good Practice: Dismissal; sets out guidelines relating to procedural and substantive fairness and guidelines on determining sanction .

13 This matter arises out of the applicant’s referral of his dismissal dispute. Dismissal was not in dispute. The applicant denied that he was guilty as charged and raised issue with substantive fairness. The applicant seeks that he be reinstated together with backpay. It was the respondent’s case that the applicant was guilty as charged (apart from charge 6.6 on which it did not lead evidence) and that dismissal was an appropriate sanction.

14 In order to discharge the onus, an employer, the respondent herein, is required to prove that the applicant’s dismissal was fair and that the applicant is guilty of the allegations proffered against him, on a balance of probabilities. The respondent needs to prove by way of credible evidence, that its version is the more probable and acceptable version . The rules underlying the charges and that the applicant was aware of the rules was not in dispute. What is in dispute is whether the applicant contravened the rules or whether in certain instances he can be held responsible .

15 It is important to contextualise the charges in respect of the events and situation that pertained at the Fort Beaufort District Office, both before, during and after the Vazi commission. The intervention of the Vazi commission in itself is an important event in the saga surrounding the charges brought against the applicant. Mr Vazi, of the Vazi Commission, as can be seen from the list of witnesses above, testified at the arbitration hearing.

16 According to Mr Ngalo, an admin clerk and chairperson of NEHAWU (2010-2011), Ms Kwinti the then District Director, Fort Beaufort District Office, “left in a very bad situation” in 2000. Ms Nqandela a District Director, after Ms Kwinti also “left in a very bad situation”. He elaborated in the case of Ms Nqandela that both NEHAWU and SADTU had toyi toyed and the workers had chased her away in 2007. This was a common refrain amongst the witnesses who came from the Fort Beaufort District Office, although in some cases SADTU was not mentioned. Be that as it may, different witness would have had different perceptions as to who was the driving force in chasing Ms Nqandela away. The main point is that due to worker unrest, the Union/s had taken it upon themselves to drive out two District Directors. No action was taken to redress any misconduct on the part of those responsible for driving out Ms Nqandela. Mr Ngalo and Mr Mpendu both testified that NEHAWU drove Ms Nqandela out of office, however no action was taken against them by the department. In this case, the responsible authority would be the head office in Zwelitsha. One must bear in mind that the message this sends to employees is incalculable. Disorder, ill-discipline and insubordination together with a lack of respect for authority becomes the order of the day.

17 SASAWU, see below, was not yet in existence when Ms Nqandela was driven out of office. After Ms Nqandela left, it appears that head office rotated leadership of the Fort District Office amongst the senior managers, i.e. Ms Solomon, Mr Mata, Mr Gugwini and the applicant. This continued until a proposal initiated by the applicant to the effect that Mr Gugwini be appointed as acting Director, until the post could be advertised. Thereafter several other individuals were appointed as caretaker / administrator or, in an acting capacity as director of the Fort Beaufort District Office. Mr Deliwe was sent by Head Office as an administrator. According to Mr Ngalo, he did not stay long and was chased away. Reverend Fetsha, District Director, Grahamstown, was appointed as a caretaker / acting director of the Fort Beaufort District Office. The Unions took umbrage to this as Head Office did not introduce him to the stakeholders. Mr Tom was appointed as Acting Director in April 2012. Both Unions (NEHAWU & SADTU) were initially against him and according to Mr Tom, SADTU took issue with the fact that head office failed to introduce him. Later he joined NEHAWU and, again according to him tensions eased in relation to NEHAWU but not SADTU. It is accordingly evident that over a period of 10 years at the most, and at the least 3-4 years, the situation at the Fort Beaufort District Office steadily grew worse. It is also apparent that Head Office did not intervene by way of taking action against those responsible for the unrest or appointing a permanent District Director. The Union parties were divided and division occurred within them. A break away group from NEHAWU formed SASAWU. SADTU was made up of the Alice Branch, the Fort Beaufort Branch, the Adelaide and Bedford Branch (Adelford) and the Middledrift branch. According to the respondent’s witnesses, NEHAWU did not favour the applicant whereas SADTU, apart from its Middledrift branch, favoured the applicant for the position of Director of the District. In all this time, the Head Office did not act to put stable and permanent leadership in place. Mr Ngalo, chairperson of NEHAWU testified that NEHAWU was in the driving seat of the destabilisation of the Fort Beaufort District Office, this to a lesser extent was echoed by Mr Mpendu. It is readily apparent that Mr Mpendu used his connection with NEHAWU to drive his grievance relating to the irregular conduct of Ms Jiyana in changing his pmds score from 4 to zero. Ultimately and on a recommendation from the Vazi Commission, the applicant held a grievance meeting with Mr Mpendu, Mr Ndymara and Ms Jiyana, it was pointed out to her that what she had done was wrong, she apologised and it was agreed that the applicant would address correspondence to head office to remedy the situation. Head office however did not respond timeously, leading to Mr Mpendu seeking other avenues of redress and further strengthening his distrust of the applicant.

18 The witnesses (Ms Lombard (IQMS co-ordinator) and Ms Ndzandze) were unable to recall the exact date, but testified to a toyi toyi / march which entered the District Offices and came to their building, some distance from the main building, climbed the stairs to their office on the top floor (2nd floor), and harassed them by shouting, blowing vuvuzelas, chanting, ripping out the electricity supply to their computers and in one instance waving a knobkierie above the head of one of the women. Finally the group locked them in the room when they departed. They had also noticed liquid being poured under the door and were afraid that this was petrol. Ms Ndzandze was of the view that the march / toyi toyi was by principals. Ms Lombard was of the view that one principal led the march / toyi toyi. The march / toyi toyi was composed of SADTU members. This incident, without further comment, traumatised the individuals in question. Ms Ndzandze tried to contact the applicant, was unsuccessful and contacted her husband and asked him to contact the applicant. Ms Lombard also tried to contact the applicant but was unsuccessful. After the door was opened, she had gone to Mr Dayile’s (the applicant) office and found him together with the police and Mr Hopa. She reported the incident. She was not sure what he had done about it. She was of the view that toyi toyi / marches of this nature fell within the purview of the applicant’s job description.

19 Witnesses from various sections, HR, Finance, IQMS / IDS&G testified that grievances lodged by them and their staff were not attended to by the applicant / his Unit. Ms Lombard (IQMS / IDS&G) testified that she had complained about the pmds score allocated to Ms Ndzandze and which had been changed. The applicant had written back to her advising that pmds was a personal issue and that Ms Ndzandze should lodge a grievance. Ms Lombard appeared to have a problem with this. Evidence as to whether Ms Ndzandze lodged a grievance or not and if so what happened was not presented. Ms Ndzandze testified that she was always the last to get paid in respect of pmds, however she did get paid. Later, an official from head office had assisted on how to complete the form and thereafter she did not experience any further trouble. How the applicant should be called to account for this is baffling to say the least. On what basis the applicant was charged in this regard, is difficult to understand. Grievances are completed by the grievant and handed to the employee designated to facilitate grievances at the institution. As apparent from A210, this appears to have been Mr Qabaka DCES Labour Relations, resorting under the applicant, CES HRD & Labour Relations. On the basis that the Acting District Director (to whom the applicant reported) was not charged for the applicant’s alleged misconduct, and that the applicant was charged, the question arises as to why Mr Qabaka (who reported to the applicant) was not charged. In addition, whether or not the actual grievances, if lodged, were escalated to the applicant, was not dealt with.

20 Other issues also drive employees in the workplace, irrespective of their affiliation, and that is remuneration. Although not addressed on this issue by the parties, it is no coincidence that the SADTU march / toyi toyi launched against the office of Ms Lombard, at the time IQMS coordinator (similar to pmds but for academic staff/educators) and Mr Mpendu’s and Ms Ndzandze’s grievances relating to pmds in additions to claims that pmds scores had been changed, were so vigorously pursued, both had to do with remuneration.

21 A recurring theme in the correspondence and witnesses’ testimony is the lack of appropriate and adequate intervention and support on the part of Head Office of the Fort Beaufort District Office, this in the face of a severe leadership crisis in the Fort Beaufort District starting, at the latest, from 2007.

22 Another recurring theme as per various witnesses, is that the applicant failed to take action and discipline certain employees who had been reported to him for certain misdemeanours or that he ought to have known about. Discipline is a line function. The applicant was responsible for HRD (Mr Mandindi) and Labour Relations (Mr Qabaka) and in the event, it was required, to discipline them. I shall deal with this below. In the case of Ms Jiyana, she resorted under the Human Resource Unit and should have been disciplined by Mr Ndymara. The applicant had no authority to discipline her and if he had he would have usurped Mr Ndymara’s authority. In the event Mr Ndymara needed technical assistance e.g. the procedures to follow or in drafting charges, then he could have approached the applicant for assistance, as this was within the applicant’s mandate / job description.

23 As apparent from various references made by certain of the respondent’s witnesses, the applicant had been in the leadership of SADTU while he was in Alice. The result was that when the applicant came to the Fort Beaufort District Office as CES HRD&LR, he was associated with SADTU. Some of the witnesses testified to members toyi toying and carrying placards to the effect that they wanted the applicant to be the Director. This clearly put the applicant in opposition to Mr Mpendu, Mr Ngalo and Ms Solomon, all members of NEHAWU. In a conflict free environment membership of a Union would be a normal corollary of working in the department, however, given the tense atmosphere that prevailed, it would appear that this added to the negative view that Mpendu, Ngalo and Solomon held of the applicant.

24 In June 2012, the Acting head of Department, Mr Ngonzo, convened the Vazi Commission to investigate:
24.1 Allegations levelled into the actions of Mr Ntozelizwe Tom, the Acting Director in Fort Beaufort, by the Fort Beaufort District Educational Forum (DEF) and the South African Democratic Teacher’s Union (SADTU)
24.2 Functionality and efficiency of Institutional Development Support and Governance (IDS&G), Human Resource and Finance Sections in the district
24.3 General decision making and management of the district

25 The documents used as source documents were:
o Petition from the DEF
o Petition from National Education Health and Allied Workers Union (NEHAWU)
o Letter of complaint, Mr N Tom, the Acting District Director.

26 As evident from the above, the Unions remained in play with respect to the oversight of the district office. Mr Tom who was a witness at the applicant’s disciplinary inquiry and the arbitration, was called before the Vazi Commission. Although according to Mr Vazi, and Mr Mnguni, the focus of the commission was not to discipline but recommend remedial action and that allegations made against certain individuals remined as allegations as they could not “dig down deeper”, Mr Tom was of the view that the Vazi Commission was aimed directly at him.

27 The report of the Vazi Commission was sent to Mr Tom. He however did not see the necessity to circulate it amongst members of the Fort Beaufort district, as in his opinion, it exonerated him. In the circumstances, none of the recommendations in the Vazi Commission report were brought to the attention of parties referred to therein. It was put to witnesses and not disputed that the first time the applicant had sight of the report was at his disciplinary inquiry . Head office did nothing to implement the recommendations of the Vazi Commission report, until in May 2013 when Mr Stofile was brought in as the District Director by the MEC for Education. The fact that the Head Office did nothing in respect of the Vazi Commission report recommendations added greatly to the continuing turmoil in the district, namely labour unrest, ill-discipline, disorder, failure to attend meetings, loss of morale, lack of respect for authority, different groupings with different agendas, competition between the respective groupings for control, and a lack of permanent and decisive leadership.

28 Mr Vazi testified that the focus of the Vazi Commission report recommendations was not punitive but on healing and reconstruction of team spirit and had these recommendation been attended to expeditiously, in all probability the applicant would not be the subject of the current arbitration hearing. The focus of the report was not punitive, it was developmental and wanted to build capacity and hence had recommended that head office bring support to HRD & LR, HR and HRA. In his view, to focus on punitive measures would be a disservice to the area (District Office) as the leadership / acting leadership was chaotic and some acting persons were also alleged to have caused destabilisation. There was a trust deficit and in some instances, individuals were marginalised and at each other’s throats. Therefore, in his view, there was a need for teambuilding and permanent leadership as opposed to acting or caretaker appointments. In his view, Mr Tom, the acting director at the time, had a lot of differences with his immediate subordinates, including the applicant and could not see eye to eye with them.

29 In sum, his view was that the district was dysfunctional, heads of department abdicated their responsibilities, there was no permanent District Director (leadership), ill-discipline, the situation was abnormal and accordingly it was not possible for district structures e.g. the Skills Development Committee (SDC), the grievance committee and Moderation Committee to function properly or at all. Given the situation, it was not possible to single out one person who could have maintained labour peace. For anyone to function properly, all departments and structures needed to work. One individual could not be held responsible for the entire dysfunctionality of the district .

30 It is against the above background that the charges (see Schedule ! hereto) levelled against the applicant are to be considered.

Charge 6.1.1, 6.1.2, 6.1.3 & 6.1.8
31 There was no duty on the applicant to supervise Ms Jiyana. Discipline is a line function. Both Mr Vazi and Mr Mnguni made this clear. Ms Jiyana’s supervisor was Mr Ndymara in the Human Resources Unit. Accordingly, it was Mr Ndymara’s function to discipline Ms Jiyana. The applicant’s role was to assist by way of offering technical assistance. In the event Mr Ndymara, required such assistance he should have requested same from the applicant. No evidence was led to this effect. I find the applicant not guilty of these charges.

Charge 6.1.4
32 No evidence was led to show that the applicant actually processed, alternatively was instrumental in processing a performance bonus for Mrs Matiti for the 2010-2011 financial year in circumstances where she was not entitled to it. I find that the charge must accordingly fall away.

Charge 6.1.5
33 Much was made of as to who signed off the pmds list after it had been moderated at District Level. Mr Vazi, Mr Mnguni and Mr Stofile (at the disciplinary hearing) stated that the secretary of the moderation committee would compile the list and that the District Director and secretary (DCES HRD – Mr Mandindi) would sign and the document would be forwarded to Head Office from the Director’s office. Mr Tom gave varying answers but agreed that the moderation committee was chaired by the District Director and that the pmds list was signed by him. It was his view that the list was then sent from the office of HRD. Nothing much turns on this. The fact is that the various Unit heads, including the applicant presented their subordinates’ pmds scores to the moderating committee, chaired by the District Director (or his delegate authorised thereto in writing) with Mr Mandindi (HRD) acting as the committee’s secretariat. Accordingly, it would be somewhat difficult for the applicant to tamper with scores as; he was required to present his subordinates’ scores to the committee, the compiled list of scores were signed off by the secretary to the moderation committee and the District Director and sent to Head Office from the District Director’s office. Scores may well have been tampered with by others e.g. the Unit head, the Moderation Committee, the DCES HRD, the District Director or even at the level of Head Office, whether by way of error or intentionally. No evidence was led as to the applicant’s involvement in the manipulation of performance scores. There was no requirement for the DCES HRD&LR (the applicant) to sign (or space provided for his signature on the form), so that he could quality assure the compilation of scores, which were signed off by the District Director and the secretary and sent to Head Office from the District Director’s office. Ultimate responsibility for submitting pmds scores to Head Office, rested with the District Director, assisted by the DCES HRD under the applicant as DCES HRD&L. No evidence was led to suggest that the applicant contravened charge 6.1.5

Charges 6.1.6
34 Ms Solomon testified that she had been invited by the applicant to attend a short thirty minute meeting. She had attended the meeting and was surprised to find that it was a moderation committee meeting. It was put to her that Mr Stofile, the day before, had delegated the applicant to hold the meeting, the applicant had invited NEHAWU. Mr Ngalo had attended for a short while (A179) and had then left citing short notice. Ms Solomon had taken exception to the manner in which the meeting had been called and had walked out. The minutes of the meeting are reflected at A177-A179 and dated 12 June 2015. In the circumstances, although short notice of the meeting was given, the meeting was held and the fact that Ms Solomon chose to leave, in circumstances where it was clear that adequate notice could not be given, does not reflect well on her as a senior manager. Mr Ngalo attended for a short while and left as was his right, being a social partner invited to attend. It seems that the applicant was “between a rock and a hard place”. He had been instructed by the District Director to hold the moderation committee meeting at short notice, one of the senior managers refused to stay in the meeting and left and Mr Ngalo of NEHAWU exercised his right to leave citing short notice. In these circumstances, it is patently unfair to seek to charge the applicant with something that is ultimately the responsibility of the District Director. In any event, NEHAWU was given notice of the meeting and so too was Ms Solomon. I accordingly find the applicant not guilty of contravening this charge.

Charge 6.1.7
35 It is the responsibility of all supervisors to enter into performance contracts with their supervisees. Most of the respondent’s witnesses testified to this. Ms Ndzandze complained of being paid her pmds late. It appears that Ms Ndzandze may have had a problem completing the forms but she was able to get assistance and thereafter she had no further problems with the submission of her pmds. Her supervisor would have been in a position to assist if need be. In any event the ultimate responsibility for pmds would lie with the District Director as head of the district. It was put to Mr Tom that Mr Vazi and Mr Ngalo testified that training had taken place. Mr Tom was unaware of this but mentioned that IQMS training had taken place in Alice, funded by the applicant’s section, which he felt was an anomaly. It is apparent that training did take place. It is not possible to determine on the evidence tendered whether this training was adequate or not. Given the above and the situation in the Fort Beaufort District at the time, I find the applicant did not contravene this charge.

Charge 6.2.1
36 Mr Vazi testified that the relevant structures could not operate normally in an abnormal environment. In his view, the environment was a “war-like situation”. The acting District Directors were unable to provide leadership and the acting Director, Mr Tom, did not improve the situation (one of the reasons for the intervention of the Vazi Commission was to investigate allegations levelled at the acting District Director, Mr Tom). In such an environment, structures such as the Skills Development Committee (SDC), Moderation committee and Grievance committee could not and did not function optimally. In such a situation, to charge one individual, in this case, the applicant, who did not bear final responsibility for their functions, is without foundation and unfair. I find the applicant did not contravene this charge.

Charge 6.2.2
37 No evidence was led as to anyone who was selected for the award of a bursary without NEHAWU or through favouritism by the applicant. In fact it was put to the witnesses that bursaries were awarded and training received and that most, if not all recipients were members of NEHAWU, this was not gainsaid by the witnesses in question. No evidence was led of anyone who had applied, including NEHAWU members, who did not get bursaries. I find that the respondent has failed to establish that the applicant contravened this charge.

Charge 6.2.3
38 No evidence was led that the applicant failed to attend meetings with NEHAWU. Mr Stofile testified at the Disciplinary Inquiry (T349-T350) that the applicant attended all meetings unless he had excused him or he had tendered an apology. This was not challenged when put to the respondent’s witnesses. I find that the respondent has failed to establish that the applicant contravened this charge.

Charge 6.2.4
39 As apparent from the various responses from the witnesses, the applicant had been on suspension when Mr Mandindi had been suspended. On his return and at a meeting the District Director, Mr Stofile, had enquired about the presence of Mr Mandindi at the meeting. Mr Mandindi told him that the current Head of Department had sanctioned his return. Mr Stofile was unhappy about this and it was the applicant who advised Mr Mandindi to leave the work premises in order that the District Director could make the necessary inquiries. In addition, it was put to the witnesses that at the disciplinary inquiry, Mr Stofile had answered to a question put to him, that he had no information to the contrary that the applicant had recalled Mr Mandindi from suspension (T349-T352). The respondent’s witnesses were unable to rebut the above. Mr Mpendu testified to the effect that he had seen Mr Mandindi at the District Office, but could not say whether the applicant had also seen him. Later he testified that he saw Mandindi and the applicant together talking to one another. To say the least, Mr Mpendu’s testimony was contradictory. Mr Ngalo stated that he had seen Mr Mandindi at work on several occasions, while he was supposed to be on suspension. No dates were given. It was common cause that the applicant was placed on suspension for a lengthy period. Given this and the nature of the testimony led, I find that there is insufficient evidence to make a finding that the applicant permitted Mr Mandindi to return to work when he knew he was on suspension.

Charge 6.3
40 No concrete evidence was led to the effect that the applicant was responsible for the destabilisation. Various comments were made by witnesses that the applicant would hold meetings with Union members in room 211 prior to and after toyi toyi’s and that the applicant incited them to destabilise the district etc. This self-evidently was their respective subjective assumptions. They were not part of the so-called meetings and could have no knowledge of what, if anything, was discussed. Mr Vazi testified that this had been raised at the Vazi Commission and despite them asking on several occasions and following up on this, not a single shred of evidence in the form of an email, sms, etc had been provided. He considered the claim simply an allegation without foundation.

41 One also has to take into account that Mr Ngalo testified that NEHAWU, which Union he led, contributed to the destabilisation and was responsible with SADTU for driving the previous District Director (Ms Nqandela) away from the District Office . The respondent’s witnesses, in particular Mr Mpendu, Ms Solomon, and Mr Ngalo, appeared to side with their Union (NEHAWU) in casting responsibility and blame on the applicant. Ironically, Mr Ngalo confirmed that NEHAWU under his leadership was one of the driving forces behind the destabilisation.

42 According to Mr Vazi, no single individual could have been able to maintain labour peace in the atmosphere of violence prevailing at the time. In other words, it was impossible for any one employee to maintain structures and other structural efficiencies and stability in the prevailing conditions at the district.

43 With regard to the incident experienced by Ms Lombard, Ms Ndzandze, Ms Gradwell and Ms Wesson relating to the march / toyi toyi in their office, the following has to be considered. Neither Ms Lombard nor Ms Ndzandze established contact with the applicant at the time of the incident. Mr Mnguni confirmed that the job description of the applicant did not extend to safeguarding the physical safety of fellow employees. No evidence was led of Mr Qabaka (Labour Relations), escalating any grievance to the applicant in this regard.

44 In so far as this charge (or Charge 6.4.2, see below), may relate to inciting personnel, in particular Ms N Matiti, Ms N Nkewana, Mr B Ganto, and Ms P Matyana, as mentioned by the witnesses and who are the applicants in the Labour Court Judgment, Case No. PR152/19 & PR158/19, I am in agreement with Mr Mama, that in so far as the Labour Court has found that their dismissals were substantively unfair, that this aspect of the charge falls away.

45 In the circumstances, I find that the respondent has failed to establish that the applicant contravened this charge.

Charge 6.4.1
46 In so far as charge 6.4.1 related to possible disciplinary action against Mr Qabaka (DCES Labour Relations), there is insufficient evidence to make a finding. Mr Mpendu’s grievance, when brought to the applicant’s attention by the Vazi Commission was addressed by the applicant, see above. In addition, Ms Jiyana did not report to the applicant and any disciplinary action against her ought to have been taken by her supervisor, Mr Ndymara, see above.

47 The duty to sign off pmds scores, collated by the moderation committee, rested on Mr Mandindi (DCES HRD) and the District Director. In this sense, it could be argued that there was no responsibility on the applicant to discipline Mandindi for infractions in this regard. However Mr Mandindi resorted under the applicant’s control as CES HRD&LR. Of relevance is that the Vazi Commission report which recommended disciplinary action against Mr Mandindi was never shown to the applicant (Apart from Mr Tom, It was not distributed to members of the District Office and the applicant saw it for the first time at his disciplinary inquiry). Instead, the acting District Director, Mr Tom, instructed the applicant by way of letter (see A171 dated 21 November 2012) that he should institute disciplinary action against Mr Mandindi on the basis of “irrebuttable evidence” relating to his unilateral manipulation of pmds scores and report progress to him within 5 working days. The “irrebuttable evidence” was not provided. On 23 November 2012, see A172, the applicant requested that Mr Tom favour him with the irrefutable evidence in order to consider preferring charges against Mr Mandindi. During his testimony Mr Tom, when asked whether he had provided the evidence required, answered that as far as he was concerned, everyone knew about it and that the applicant was merely fobbing him off. Notwithstanding the urgent tone of his letter of instruction and giving the applicant 5 working days to respond, the acting District Director, Mr Tom, did not supply the information requested and did not take the matter further. The charge against the applicant, in respect of Mr Mandindi, in such circumstances, is without merit.

Charge 6.4.2
48 Mr Mpendu conceded that the applicant did not insult him or Mr Ngalo. Later he added that the applicant was part of a group of people, some of whom had insulted them. Mr Ngalo stated that he, Mpendu and others were insulted by members of SADTU in the presence of the applicant and that those charged for insulting them were dismissed. He took issue with the failure of the applicant to do anything about the persons who insulted Mr Mpendu and him, in the applicant’s presence. The nature of the insults, victimisation, humiliation or insults, if any and by whom, were not made known. I find that the respondent has failed to establish that the applicant contravened this charge

Charge 6.5
49 The respondent led several witnesses on this issue. Mr S Cwelana, Chief Provisioning Administration Clerk, Asset Fleet Management, Fort Beaufort District, since 19 January 2009 who handled transport claims of employees with subsidized vehicles until March 2012. He testified that there were certain documents required for processing a transport claim. The document handed up e.g. A249, a log sheet, was not sufficient to indicate where the applicant had been. Various other documents were required e.g. the trip authority, an itinerary authorised by the employee’s supervisor, a confirmation form (e.g. a school register was not required for a transport claim, only a school stamp signed by the principal, letter of invitation or attendance register) and fuel slips. These would be attached to the back of the log sheet and if in order this would be endorsed on the back of the log sheet and signed. Initially he had problems with the way in which the applicant had submitted his transport claims. He had then explained to the applicant how claims should be submitted and from then on, the transport claims submitted by the applicant were all in order.

50 Ms Z Mncono, Administrative Clerk Fort Beaufort District dealt with transport files in 2012. The transport files had been handed over to her in 2012. She had the applicant’s 2012 transport file but had been unable to locate his 2011 file. She was not sure whether it had been handed over to her or not. She confirmed the documents that were required to be attached to the log sheet, as above, and that a travel claim would not be paid unless all the required documents were submitted.

51 Mr JD Valiathazhyl, retired Deputy Director Conditions of Service and Staff Appointments, testified to the effect that the log book entries at B60-61 and A249 were insufficient to substantiate a transport claim and that additional documentation along the lines specified by Cwelana and Mncono would also be required. He was not familiar with the way in which the log sheet had been filled in. Put to him that the log sheet was simply a recordal and not a transport claim, he could dispute or agree to it.

52 Ms R Pendrigh, Deputy Director Leave Management, Head Office Zwelitsha, testified to the effect as apparent from PERSAL printouts at A261B and A261C that the applicant had been on vacation leave for 13 days (13 06 2011-30 06 2011) and 4 days (04 10 2011-07 10 2011).

53 Mr S Louw testified in relation to certain pro forma reports that he had obtained from various schools, in which a responsible person, if the principal was not available had endorsed as whether the applicant had signed the school visitors book on certain dates during the period January 2011 to October 2011. Mr Louw’s testimony constituted hearsay evidence. Given that the evidence of Cwelana and Mncono directly contradicted the reports made by the individuals at the various schools as relayed by Mr Louw, I am unable to place any weight on his testimony.

54 Mr L Mgidi, DCES Examinations Fort Beaufort District testified as to the way he filled in log sheets and the documents needed to be attached to a transport claim. He confirmed that it was not necessary for a copy of the school visitors’ register to be attached. However it was his view that the school visitors’ register should be signed. He could not refer to any rule or policy that required this.

55 Mr D Hanekom, Acting Circuit Management Centre Head for Buffalo City testified to the effect that it was expected practice for departmental officials to sign school visitors’ books. Copies of school visitors’ books were not required for submission with a transport claim. He cited the documents as indicated by Mr Cwelana and Ms Mncono that should be attached to a vehicle logbook for purposes of a transport claim. The school visitors’ book could be used for auditing purposes.

56 Mr Cwelana testified that the applicant’s transport claims had apart from his earlier problems, all been in order. Ms Mncono’s testimony was in agreement with that of Mr Cwelana as to the documents required and testified further that a transport claim would not be paid unless all the documents were submitted. On the basis of Mr Cwelana and Ms Mncono’s testimonies, it is self-evident that the respondent found the applicant’s travel claims to be in order. No application was made to declare them hostile witnesses in so far as their evidence differed form that of the other witnesses relating to the manner of filling in a logbook, or the validity of any claims made by the applicant, relating to any period. In the circumstances, I find that the respondent has failed to prove that the applicant contravened this charge.

Charge 6.6
57 The respondent did not persist with this charge and presented no evidence in regard thereto.

58 In terms of section 193(1) of the LRA, a commissioner may order reinstatement, reemployment or compensation. In addition and in terms of section 193(2), a commissioner must require an employer to reinstate or reemploy an employee unless, the employee does not wish to be so reinstated or reemployed, it would be intolerable, or it would be impracticable for the employer, or the dismissal is unfair only because the employer did not follow a fair procedure. The applicant wishes to be reinstated. I am of the view, given in particular the testimony of Mr Vazi and Mr Mnguni, that the trust relationship between the parties has not been broken or that it would be impracticable or intolerable for the applicant to resume his employment. In my view, there is no reason why he should not be re-instated in his employment, together with backpay as set out below.

59 I have considered the authorities on the issue of reinstatement and backpay . The applicant was dismissed effectively, as from 31 May 2018. As at the end of July 2022, the applicant has been unemployed for 50 months. I have found that the applicant’s dismissal by the respondent was substantively unfair. However, I am of the view that portion of the delay in the finalising of the matter was due to the applicant, e.g. by way of applications for postponement, unable to attend, connectivity and load shedding and system delays which cannot be placed on the respondent. Although this is difficult of precise quantification, looking at the history of the matter, I am of the view that a period of 9 months of the delay must be apportioned to the applicant. The applicant is accordingly entitled to backpay for a period of 41 months (50-9=41).

60 The applicant was dismissed effectively, as from 31 May 2018. As at end July 2022, the applicant, subject to the deduction of 9 months, is entitled to backpay in the sum of R 2 769 678.74 calculated as follows:
(R 67 553.14 X 41 months = R 2 769 678.74)

61 I make the following award:

AWARD
62 The applicant, Mr Zama Dayile, is not guilty of the charges set out in the notice of disciplinary hearing dated February 2016 and recorded at Schedule 1 hereto.

63 The dismissal of the applicant by the respondent, the Provincial Department of Education: Eastern Cape on 29 May 2018 was substantively unfair.

64 The respondent is ordered:
64.1 To reinstate the applicant with effect from the date of his dismissal, 29 May 2018 in the post he occupied, on the same terms and conditions he enjoyed prior to his dismissal, subject to 64.2 below.
64.2 To pay the applicant the sum of R 2 769 678.74 (Two million seven hundred and sixty nine thousand and six hundred and seventy eight Rand and seventy four cents) as and for backpay, as set out in paragraph 60 above, for the period 31 May 2018 to 31 July 2022.

65 The applicant is ordered to report for duty at the Fort Beaufort District Office on or before 06 August 2022.


Senior Arbitrator ELRC
Makhanda / Grahamstown



EDUCATION LABOUR RELATIONS BARGAINING COUNCIL
Case: PSES314-18/19EC
In the Matter Between:

Z Dayile Applicant

and

Provincial Department of Education: Eastern Cape Respondent


SCHEDULE 1


The Charges
6.1 It is alleged that you are guilty of misconduct and / or gross dereliction of duty, more particularly in that you:
6.1.1 You failed to ensure, alternatively, adequately supervise Ms Jiyana in the performance of her duties relating to PMDS in the 2010 – 2011 financial year;
6.1.2 You failed to ensure that Ms Jijana implemented the PMDS policy adequately or at all in respect of Mr Mpendu during the financial year 2010 – 2012;
6.1.3 As a result of her conduct and your failure Mr Mpendu did not initially receive his 1% pay progression until intervention occurred;
6.1.4 You processed alternatively were instrumental in processing a performance bonus for Mrs Matiti for the 2010 – 2011 financial year in circumstances where she was not entitled thereto and thus causing the department financial loss;
6.1.5 You failed to ensure that the documentation relating to PMDS of employees, was not tampered with and that procedures were adequately followed in 2010 / 2011 and 2011 / 2011;
6.1.6 You permitted the 2014 / 2015 PMDS moderation to continue in the absence of NEHAWU after failing to inform them timeously of the said moderation in circumstances where you were aware, or should have been aware, that the absence of a social partner from the process could expose the department to the risk of a potentially unfair implementation
6.1.7 You failed to ensure adequate training and / or all supervision of the PMDS policy implementation
6.1.8 You are guilty of gross dereliction of duties in that you failed to discipline Ms Jijana or any other official for their inadequate alternatively improper implementation of PMDS.

6.2 You are guilty of gross misconduct and / or dereliction of duty in that you have conducted yourself in an improper, and unacceptable manner, more particularly;
6.2.1 You failed to ensure alternatively permitted bursary selection to be done without the involvement of NEHAWU as a social partner in circumstances where you were aware, or should have been aware that the lack of involvement of a social partner from the process could expose the department to the risk of a potentially unfair process during 2010 / 2011 and 2011 / 2012
6.2.2 You permitted favoritism in the award of bursaries and PMDS;
6.2.3 You failed to attend NEHAWU meetings with district management when you were required and or expected to attend;
6.2.4 You permitted Mr Mandindi to be present and work at the workplace whilst you knew that he was on suspension and prohibited to do so by the employer

6.3 You are guilty of gross misconduct and / or dereliction of duty in that you have incited other personnel, destabilized the district and insulted employees particularly, but not limited to, employees Mpendu, Nompunga, January, Ngalo and Stemele.

6.4 You are guilty of gross misconduct and / or dereliction of duty in that you:
6.4.1 You have failed to manage and / or control and / or discipline your subordinates adequately or at all;
6.4.2 You failed to ensure that grievance of employees relating to victimization, humiliation or intimidation were attended to adequately or at all

6.5 You are guilty of fraud and / or negligent misrepresentation and or dereliction of duty in that you claimed fuel allowance during January – December 2011 without complying with the prescribed procedures and / or in circumstances when you were not entitled to such fuel allowance.

6.6 “It is alleged that you are guilty of gross misconduct and / or dereliction of duty and / or negligence in that you failed to carry out a lawful order and / or displayed insubordinate conduct relating to the replacement of Ms B Rawana with Mr Saule to attend the Labour Relations Training in 2015”