PSES 489-12/13FS

Commissioner: Zoliswa Taba Case No.: PSES 489-12/13FS
Date of Award: 20 August 2022

In the ARBITRATION between:


T.D RAMABELE
(Applicant)


And


Free State Provincial Department of Education
(Respondent)


Details of hearing and representation
1. The dispute was scheduled for arbitration in terms of clause 9.1 of the ELRC Constitution read in line with section 186 (1) of the LRA . The hearing was set down to be heard on 01; 02 & 03 August 2022, to be heard on virtual platforms through MS Teams.

2. The Applicant in this matter is Mr TD Ramabele and the Respondent is the Free State Provincial Department of Education. Adv T. Du Preeze, instructed by Jaques Nortje from Kramer Weihmann Attorneys appeared for the Applicant party. The Applicant was present together with the instructing Attorney, Mr J. Nortje. Mr T. Tsunke, from the Respondent’s Labour Relations section appeared for the Respondent party.

Issue to be decided
3. The parties concluded a pre-arbitration minute and the issue in dispute was confirmed on record. The procedural part of the dismissal is not in dispute.

4. The issue to be decided is whether or not the dismissal of the Applicant was substantively fair.

Background to the issues
5. The matter had previously been arbitrated at the ELRC which resulted in an award being issued in 2013. The award was taken on review to the Labour Court and ended up at the Labour Appeal Court. The ELRC award was successfully appealed and the LAC reverted the matter back to the ELRC for a fresh hearing. It must be noted that the award was on the Respondent’s favour but found the Applicant guilty only on charges 2 to 6 and not on charge 7.

6. There was no cross review by the Respondent when the matter was taken on review or when it was a subject of an appeal. It is for these reasons parties were in agreement that the since only charges 2 to 6 were the ones which the courts had to deal with, those were the same charges which were still the subject of this arbitration. The arbitration proceeded on those agreed terms that only charges 2 to 6 were to be dealt with ( as per the pre-arbitration minute).

7. The ELRC received the LAC judgement on 11 August 2021. The matter was initially set down at the ELRC for a re-hearing in May 2022. Arbitration proceedings could not proceed as the Respondent party was under the impression that the matter was to be argued only on sanction in terms of the Labour Court judgment. The Applicant party indicated that there was an LAC judgement which required the ELRC to hear the whole matter afresh. Arbitration had to be rescheduled to afford both parties to prepare their cases in terms of the LAC judgment.

8. The arbitration was set down to take place on 01; 02 and 03 August 2022. The parties submitted their written closing arguments on 10 August 2022. The Respondent called four (4) witnesses in support of its case. The Applicant intended to call two (2) witnesses but withdrew one witness (SGB Chairperson) as it was agreed that what he was to testify on was common cause. Therefore, the Applicant was the only one to testify for his case. The proceedings were digitally and manually recorded.


9. At the onset, I must point out that this is a brief summary of the evidence which is relevant to the central issues in dispute. Although the closing arguments and testimonies are not recorded verbatim in this award, they were taken into account and considered in coming to my decision.

Survey of evidence and arguments
The Respondent’s case
1st witness: J. Nthebe
10. He testified in relation to charge 5 and 6. He was a retired Educator who was the Chairman of the committee responsible for books at the Applicant’s school in 2010 prior to his retirement. The role of the committee was to determine how many books the school needed and submit such number to the School Governing Body (“SGB”) to approve the purchasing of such books. The other role was distribution and collection of books to and from learners and collecting books upon delivery to the school. With regard to the delivery notes in the bundle of documents, he had not signed such delivery notes but indicated that all books ordered in 2010 were received by the school.

11. During cross examination, he confirmed that in 2010, all books ordered were received by the school even though some may have been received late. He confirmed that it was his duty to receive books at the school but was not sure whether the financial clerk could receive books as well. He maintained that his committee did not deal with finances as a result he could not testify on the issue of payments as that was the role of the SGB.

2nd Witness: K. Teno
12. She was the financial clerk at the school where the Applicant was the Principal. She was aware that there was a committee called the “LTMS” which worked with the issues of books and educators needs. Such committee would send the needs to the finance department which checked whether there were funds available to purchase books and send such request to the SGB. The SGB was responsible for budget approval, do adverts for suppliers and appoint suppliers.

13. With regard to charge 5 and 6, it was her testimony that in 2010 Mowbray stationery books had won the bid to supply the school with the books. Although the signature on the quotation of R272 550.29 from Mowbray stationery and books appeared to be hers, she had not signed the quotation on page 25 and 26.

14. The payment to the suppliers was paid in half when they won the bid and the remaining balance upon delivery. Mowbray was paid R150 000.00 on 29 April 2010 (cheque 2095), R70 000.00 (cheque 2663) on 11 May 2010 and R202 550.29 (cheque 2643) on 28 May 2010. Even though the signatures which appeared on the delivery documents appeared to be similar to hers, it did not belong to her. She was not the one who received books which appeared on the delivery notes. As a result, she did not sign the delivery notes. As to page 34, she could not have put her signature therein as the date on the delivery note was not clear.

15. As to charge 3, she had signed a cheque of R8000.00 on 29 July 2010, which was authorised by the SGB for the Applicant to attend the Principals’ conference. She was not the one who completed the cheque authorisation document which allocated how the R8000.00 was used. The Applicant had indicated therein that he used R5500.00 to pay food handlers on 29 July. She was not aware of such payment as no one signed to confirm that the food handlers had in fact been paid. She was only aware of two payments done for food handlers to the total amounts of R5500 which were paid on 27 May and on 03 June. As to the conference, the Applicant indicated that he used R1500 for transport and R1000 for conference. The R1000 was questionable as the conference was for 6 days not 7 days as the Applicant alleged that R1000 was for the extra night he had to sleep over. The Applicant did not inform the SGB of the extra day he was to stay at Lesotho.

16. With regard to charge 4, the R290 which the Applicant alleged was for the prize giving transport could not have been for that as the prize giving took place at school and there was no need for transportation.

17. During cross examination, she confirmed that Mr Nthebe was the chairperson of the books committee and that he was the relevant witness to respond to all issues pertaining to the school books. She confirmed that the quotation of R272 550.29 was authorised by the SGB for books to be bought at Mowbray stationery & books.

18. She disputed that the signature on page 79, delivery note was hers. She maintained that she did not receive the books hence it could not be her signature. She asked not to comment when it was put to her that the testimony of Mr Nthebe that all books ordered were received by the school was supported by the quotation of 1799 books, which was in line with the Applicant’s entries and the delivery notes.

19. She confirmed that the cheque of R 70 000 and that of R 202 550.29 were authorised by the SGB and she had signed them and that Mowbray stationery & books had in fact been paid the amounts reflected on the cheques. She confirmed that she signed cheques in line with what had been quoted and would not sign if proper documents were not available.

20. She maintained that even though the Applicant was not charged for the cheque appearing on page 75, the cheque was not irrelevant to the case. She conceded that the cheque on page 75 was signed by her and that she would not have signed it had there been no proper documentation. She disputed that page 34 was a duplicate copy of 82 which was created automatically on the back page of a delivery book which remained in the book after the original slip was issued to a customer. She maintained that the date on page 34 was hand written as opposed to page 82.

21. She confirmed that with regard to the R8000 cheque, such amount was approved by the SGB. She conceded that those who were alleged to have been working at the feeding scheme and paid R5500 in total never came back to complain that they were not paid for the work they did. She could not comment on the R1500 for the conference and R1000 transport which added to R8000 but confirmed that the cheque was cashed after services were rendered. She conceded that there was proof that the Applicant had to sleep a day extra at the conference but maintained that the whole accommodation printout did not record the last date of 08 August below the transactions although the first page indicated 01 August to 08 august.

22. She conceded that the Applicant used his own funds to the value of R314.04 for the cleaning lady to purchase cleaning material and that such amount was not paid back to the Applicant as it was not approved by the SGB. She confirmed that there were travel costs to buy food and what was needed for the prize giving ceremony therefore R290 was probably used for that. The R4300 was approved by the SGB for prize giving and was used to purchase food. She confirmed that the cheque of R5000 was used as shown on page 6 but disputed that the Applicant paid back R414,00 to her and that she failed to issue a receipt.

23. She disputed that there had been disciplinary actions taken against her on missing documents and maintained that the charge against her was that of failing to comply with the agreement she made in 2008 to refund the money she took without authorisation. She disputed that she had stolen money from the school. She confirmed that the cheques the Applicant was charged for were not part of the negative finding of the auditor’s report. She had disputed signing any delivery notes but confirmed that at an earlier arbitration she had conceded to have signed delivery notes after being shown the transcripts of the arbitration hearing where she testified under oath about the same issue.

3rd Witness: Mr Mohapi
24. He was the Deputy Principal in 2010 at the same school where the Applicant was a Principal. Referring to page 7, he testified that he was the one who was responsible for holiday classes and confirmed that the signatures appearing on that page were legit. He was the one who wrote the names appearing on the list of educators who did the holiday duties but he did not write in the amounts reflected on that page. The payment structure was that those who worked were to be paid a flat rate but could not recall what was the flat rate at the time and he was not the one dealing with finances. All he was aware of was that educators were paid according to the days they worked and in line with the time table. It was possible for educators not to receive the same amount.

25. During cross examination, he maintained that page 7 was a register and not proof of payment. He conceded that if he was involved in the holiday teaching he would have received the R300 payment. He confirmed that he was part of the SGB in 2010 and that he was not aware of any payments done by the Applicant which were not approved by the SGB.

4th Witness: P. Buffel
26. He was employed as an investigator at the anti-corruption section of the Respondent. In 2010, an anonymous complaint was received with allegations of mis management of funds at the school. He visited the school and requested financial documents from the Applicant. The Applicant referred him to the financial clerk being the person in custody of financial documents. Cheques were received but proof of how the money was used could not be produced. All the proof of how the money allocated on the cheques was used was only made available at an arbitration which set down in 2013 and that was the first time he had seen such proof.

27. In the previous arbitration, he had testified that had those documents been before him, he would not have proceeded with allegations against the Applicant but had now changed his statement as he now saw contradictions on the proof submitted. With all submitted proof, he would have needed to confirm with those alleged to have been paid, confirmed the signatures on the documents and made himself satisfied as to how and why payments were made.

28. During cross examination, he conceded that the proof was made available in 2013 but maintained that he did not see a need to do investigation as the Applicant had already been dismissed. He conceded that page 8, which was one of the proof of how money was spent was in fact seen by him during his investigation. He conceded that he also received page 10 during his investigation, he interviewed the SGB and that such document was approved by the SGB but that he did not contact SAPA as that was not his duty to do so.

29. He confirmed that the cheques the Applicant was charged for did not form part of those cheques in which a negative finding was made by the auditors. He maintained that even if at the arbitration it appeared that there was no proof that the Applicant stole money, the documents submitted were not available when they were required. The documents were questionable as they were available when the auditors were there but were not available upon investigation.

The Applicant’s case
1st witness: T.D Ramabele
30. He was employed by the Respondent in 1988. He held a clean disciplinary record throughout his employment with the Respondent. All the cheques he was charged for were approved by the SGB and he had proof of how money was spent. With regard to charge 2, it was his testimony that he did not embezzle the money given to him. He spent R4586.00 out of the R5000.00 approved by the SGB as per allocation on page 6. The balance of R414.00 was given to Ms Teno, the financial clerk in cash.

31. With regard to charge 3, the Applicant’s testimony was that he was issued with a cheque of R8000.00 and that the expenditure found on page 10 was approved by the SGB. The R8000.00 was used in paying those involved in the feeding scheme, the Lesotho transport and for the conference he had attended. There had been no complaint that the food preparers were not paid. As to the conference issue, he arrived at the conference on a Sunday and left on a Saturday. Proof of his stay at the conference was on page 14 which indicated that he arrived on 01 August and left on Saturday.

32. He was further not guilty of charge 4 as the amount of R4300.00 on the cheque was approved by the SGB to be used for what he used it for. R4010.00 was used as per page 23 to buy food for the ceremony and the R290.00 the Respondent charged him for was used for transportation by the SGB while busy with preparations of the ceremony as they had to use taxis to buy food and prepare for the event. The R290.00 was approved for transportation by the SGB.

33. He was not guilty of charge 5 and 6. The SGB had approved an amount of R272 550.29 to be used to buy textbooks after receiving a quotation from Mowbray stationery and books. In terms of page 24, a cheque of R70 000.00 was made out, signed by himself and Ms Teno for books to be bought. As per page 27, such amount was paid to Mowbray stationery and books on 11 May 2010. A further cheque of R202 550.29 was approved by the SGB, co-signed by him and Ms Teno for books on 28 May 2010. The said amount was paid over to Mowbray stationery and books on 28 May 2010 as per page 31. All the books paid for were delivered to the school as per page 33 on 20 May 2010 and as per page 35. In May 2010 and on 03 June 2010, he made entries, page 32, and 36 confirming that all ordered books were received by the school. On all the delivery notes, Ms Teno had signed as confirmation. There had been no complaint that books ordered were not received.

34. As to the cheque on page 75, he was not charged for that and that was not even a subject of his dismissal case and did not relate to the quotation which was received of R272 550.29. When Mr Buffel visited the school for investigations, he referred him to Ms Teno for financial documents as she was the one tasked with keeping financial records and minutes of the SGB as she was also part of the SGB. There was an audit which was conducted at the school and no negative finding was made on all the cheques the Respondent charged him with. He had never used the school funds for his personal use. Had he had the documents’ in his possession, he had no reason not to give them to the investigating officer.

35. During cross examination, he confirmed that service providers were paid in two instalments before delivery and after delivery. He confirmed that page 82 was a delivery note. The first payment for books was done on 11 May 2010 and second on 20 May. Delivery was done on 20 May and on 03 June 2010. He could not respond on the issue of the R150 000 as he did not recall what was it for as he prepared his case according to the charges levelled against him. He was never charged for the cheque of R150 000.00. Even though the proof was not available at the disciplinary hearing, he made an effort after his dismissal to go to all service providers to obtain the copy of the proof to prepare for arbitration.

36. He maintained that the R1000.00 he used for conference was as a result of the extra day he had to stay. He was told on Friday late by the hotel management that his stay had come to an end but could not leave Lesotho at night to drive hence he had to stay an extra night. The conference was initially from 01 to 06 but had to stay an extra day.He arrived in Lesotho on Sunday and left on Saturday. He could not remember the specie dates as it was a long time ago. The conference was to end on 06 August and he had to return after the conference but slept over and returned the next day.

37. He disputed that he took 4 years to take disciplinary actions against Ms Teno. Ms Teno had used the school funds unauthorised for personal use. She then in writing agreed in 2008 to pay the money back but did not do so. She delayed paying hence the charges came only at a later stage for failing to do what she agreed to do. She had been disciplined prior to him referring the matter to the Respondent where she received a final written warning. He maintained that the R414.00 was given to Ms Teno in cash as she dealt with finances and was responsible to bank it. He maintained that the Deputy principal received the R300.00 hence he never complained on non-payment when he was involved in holiday work. He disputed that there was a flat rate as educators were not doing the same work.

38. It was his testimony that the amount was spent according to what was approved by the SGB. He maintained that he had paid a total of R3010.00 to educators who were involved in matric extra classes. None of the Educators had complained that they were not paid for their services. The SGB had approved a tariff to attend the workshop in Kroonstad for R1000.00. He spent a R1000.00 for transport and such tariff was approved by the SGB at a meeting he attended with the SGB chairperson.


Parties arguments
39. The Respondent argued that the Applicant was guilty of all the charges and that the dismissal was substantively fair. On the other hand, the Applicant’s argument was that he was not guilty as the money he used was approved by the SGB and used for school purposes. He had not used money for his own benefit.

Analysis of evidence and argument
40. The issue I am called to decide is whether or not the Applicant’s dismissal was substantively fair. The Respondent bears the onus to prove that dismissal was for a fair reason. The Applicant disputes guilt on all the allegations brought against him. The allegations relates to the cheques which were approved by the SGB for money to be used for school related activities. It is common cause that the SGB had approved all the cheques for money to be released and used for school related activities/ purposes, therefore my analysis will focus only on the disputed facts which are whether the Applicant had embezzled money, acted dishonestly and failed to account.

41. The allegations are somewhat similar in that they all allege that the Applicant embezzled a certain amount and failed to account for it. It is further common cause that some of the proof of how the money issued to the Applicant was spent (in relation to the charges against the Applicant) was only made available for the first time at an arbitration hearing which took place in April 2013. Although this is the case, such evidence is before me and cannot be simply ignored.

42. It cannot be ignored that such proof is relevant or is materially important evidence which affected the core of the Applicant’s defence. Even though the Respondent bears the onus to prove that dismissal was fair, there is no reason in principle why the Applicant, who after all is claiming the dismissal is unfair, should not present evidence in support of that contention, which the Respondent must successfully rebut in order to succeed. Moreso, at no time did the Respondent object to such evidence being admitted at these arbitration proceedings. I now turn to the issues of the charges which led to the Applicant’s dismissal.

Charge 2
43. The charge relates to an allegation that the Applicant embezzled R4810.00 out of the R5000.00 given to him and that he failed to account for the money used. In supporting its case, the Respondent called Mr Buffel whose testimony was that at the time of his investigation he did not receive any proof of how the R4810.00 was used and only R190.00 could be accounted for. On the other hand, it was the Applicant’s testimony that he had referred Mr Buffel to Ms Teno, the financial clerk whose duty was to keep the financial records for proof. The Applicant’s evidence was confirmed by Mr Buffel. It was not disputed that one of the financial clerk’s duty was to keep financial records. Moreso, Ms Teno, did not dispute that as a financial clerk it was one of her duties to keep financial records.

44. The Applicant submitted proof of how the R4810.00 was used as reflected on page 6 of the bundle of documents. As to the payment of Educators on page 7, the signatures on the page were declared legit by the Deputy principal, Mr Mohapi who testified that he was the one who completed the names of the educators and that they signed on that page. He also confirmed that indeed there were educators who did the work and as a result ought to be paid. Although it was his testimony that the page was meant to be a register, it is probable that the same page was used to pay the same educators. It is not indicated on that page that it was a register. Furthermore, it was not disputed that all educators appearing on the page did the work and that no complaints were received of non-payments, therefore, the Applicant’s testimony about using such money to pay the Educators is probable. As to all other items appearing on page 6, Ms Teno confirmed during cross examination that they were paid and approved by the SGB.

45. As to the R414.00 balance, Ms Teno disputed that she was given the money back to bank. Although this is the case, as a financial clerk, who is responsible to keep financial records and who was aware that there was an approved cheque of R5000.00 which was written out to the Principal for school purposes, why would she not follow up after the money was spent to request the records for safe keeping or at the very least to request a report back on how money was spent so she could reconcile her financial documents?

46. The Applicant’s testimony is that he paid the money back in cash to Ms Teno and received no receipt. It must be noted that this is the same individual who had been accused of taking school funds unauthorised and using it for her own benefit. A person who upon being confronted of what she did, promised to pay but failed to do so. It was not her testimony that she was aware that the Applicant had a balance outstanding to be paid but he had not done so. Therefore, without any proof that Ms Teno had raised the issue that there was a balance outstanding and that the Applicant had refused to pay for it, the version of the Applicant is more probable that he had indeed given such cash to Ms Teno, the responsible person for banking and keeping financial records.

Charge3
47. The Applicant in terms of page 3 made a list of how the R8000.00 given to him was spent. Ms Teno confirmed during cross examination that the R8000.00 was approved by the SGB. She confirmed that there was a feeding scheme and that those who worked at that time had to be paid for work done and such workers never complained of not receiving payment due to them. She further confirmed that the names which appeared on page 12 were names of those who had been involved in the feeding scheme.

48. She confirmed that those who worked on 27 May and 03 June were paid but could not confirm whether there was payment made on 29 July. What is of importance is to note that on page 12, there appears three different dates and on all the dates, same names, signatures and same payments appears. This means that same people were used at all times and were paid the same amount at all times. By only looking at page 12, Ms Teno could confirm two payments done by other two staff members but refused to confirm a payment which was made by the Applicant even though amounts were the same, names were the same, signatures attached and even though she confirmed that work was done on the period the Applicant says he made payments.

49. Ms Teno appeared to at all costs attempted to avoid confirming proof before her which could absolve the Applicant from the allegations against him. It was not her testimony that she was present when the payments of 27 May and 03 June were made, but she could easily confirm that such payments were made just by looking at the document. Furthermore, she did not dispute that work was done for 29 July and that those who worked then did not lay complaints of not receiving payment for work done. Without any proof that money was not paid to the feeding scheme workers, the Applicant’s version is accepted that R5500.00 was indeed paid to such workers.

50. As to the Lesotho transport and the conference, Ms Teno conceded during cross examination that the SGB had approved the R1000.00 and the R1500.00 which fell within the R8000.00. She took issue with whether the Applicant indeed stayed an extra day in Lesotho. Her testimony was that the conference was to be from 01 till 06 August 2010, which the Applicant did not deny. The Applicant had indicated that he had to stay an extra day after the conference to avoid travelling from Lesotho to South Africa at night hence the R1000.00 for the extra day.

51. In his evidence, the Applicant was adamant that since the matter happened a long time ago, he could not recall the exact dates but clearly remembered that he arrived at the conference on a Sunday and left on a Saturday. When one considers the calendar of 2010, if the Applicant arrived on a Sunday, then it means that he arrived on the 01st and if he left on a Saturday, then he left on the 07th making it six nights.

52. The Maseru Sun document on page 14, indicates the Applicant’s name and confirms the Applicant’s stay at the hotel. To read this document in isolation without the Maseru Sun summary printout which starts at page 15 -21 (“the Maseru Sun printout”), would give a wrong impression that the Applicant actually checked out on 08 August.

53. A careful look at page 14 indicates that the document was taken straight from the information on the Maseru Sun print out. It would not be unreasonable to accept that there was a group booking for headmasters with code ACP 080 and as such, a group arrival was expected from 01 August and last departure was on 08 August.

54. At a careful look at the page 1 of the Maseru sun print out, it is clear that the print out is a summary of the ACP school headmasters who were accommodated at Maseru Sun. It would be incorrect to interpret it as only belonging to the Applicant. The dates and names appearing on this specific documents are not only of the Applicant but of all other headmasters. It is clear from the Maseru Sun print out that some headmasters came earlier than others, some left earlier and some probably left later than others as the last page is missing. The arrival date of 30 July and the departure of 08 August on this document cannot be interpreted to be that of the Applicant. The Maseru Sun printout is a general statement for all headmasters who slept at Maseru Sun. What is important to look at is where the name of the Applicant appears and stick to such.

55. The Maseru Sun print out (page 15 - 21) clearly shows the Applicant’s name appearing as from 01 August, and goes up until 06 August 2010. It shows that he was charged accommodation fee for the 01st up to an including the 6th, meaning that he left on the 7th which is consistent with his testimony. This means that instead of leaving on the 6th, the Friday, as it was supposed to be, he had to sleep over on the 6th and only travel the next day hence the extra charge for the 6th.

56. Had he left on the 6th, he would have checked out in the morning of the 6th and would not have required to pay a fee for the 6th. One may accept that since the conference was until the 6th, he was initially supposed to sleep for 5 days( 1 August to 5 August) and check out on 06 August, attend the conference and go home, but due to lateness of the conference, he could not leave on the 06th. It can be accepted that the issue of seven days was an omission which is not material to the dates more so when one considered the confirmation on page 13 from the principals association confirming that the conference required him to leave on the 7th. Therefore, based on all this, the version of the R1000.00 used for an extra day is probable and falls within the R8000.00 approved by the SGB.

Charge 4
57. As to the charge of R290.00, Ms Teno supported the Applicant’s version during cross examination when she conceded that transport was used to buy food and do preparations for the prize giving therefore, the R290.00 was a reasonable amount for such transportation. Moreover, the Applicant submitted slips of food purchased for the prize giving ceremony when such transport was used as part of proof that transport was needed to buy such food.

Charge 5 and 6
58. The allegations related to mismanagement and failing to account for R70 000.00 and R202 550.29. The Applicant’s testimony was that the whole amount was used to buy school books for the school and that such money was approved by the SGB. The books ordered were delivered and money was paid to Mowbray Stationery and books. This testimony was supported by Mr Nthebe, who was responsible for books at the school. He testified that all books were received in 2010 and that there had been no complaint of any books missing or not delivered. Furthermore, Ms Teno also testified that both the R70 000.00 and the R202 550.29 were indeed paid to Mowbray stationery and books. Furthermore, it is clear from page 27 and 31 that indeed the money was paid to Mowbray Stationery and books on 11 May 2010 and 28 May 2010. The issue of when the books were delivered or how they were delivered is immaterial as none of the witnesses testified that books ordered were never received.

59. The Respondent attempted to bring in an allegations which the Applicant was never charged with which did not form part of the reason for the dismissal. All the allegations ( 2 to 6) against the Applicant related to specific cheque numbers and an amount attached to it. Nowhere in the notice to attend the disciplinary hearing nor as the reason for the dismissal did the Respondent make mention of cheque 2095 which related to the R150 000.00 the Respondent wanted to lead evidence on.

60. In NUM obo Botsane v Anglo Platinum (Rustenburg Section) , the Court held that an Employer is not permitted to introduce a new charge not initially relied on to justify dismissal. If a new basis to dismiss is discovered after the dismissal, the Employer should convene a new hearing. Therefore the evidence on cheque 2095 could not be entertained as it did not form a basis on the decision to dismiss the Applicant.

61. As to Mr Buffel, he did not go into depth as to how exactly he conducted his investigation. The fact that he did not receive some documentation he sought at the time, in itself, cannot be used as a basis to conclude that there was mismanagement of funds or embezzlement of funds. At most, one could give a report of poor documents keeping but not embezzlement or mismanagement of funds without proof. Furthermore, Mr Buffel’s testimony was not consistent. He initially testified that he saw all the documents for the first time at the arbitration proceedings but conceded that he had seen page 10 and page 8 during his investigation.

62. As to page 10, the one with the Lesotho trip, he conceded during cross examination that he confirmed with the SGB that all amounts were approved by the SGB. Why then would the Applicant still be charged with charge 3 if the investigating officer himself says he confirmed approval of such funds with the approving body, the SGB? Furthermore, it was his testimony that had he received the documents prior to the arbitration date, he would have followed up with all those who were service providers to confirm payments. This testimony is found wanting as even though he had page 10 as conceded, he still failed to follow up on service providers appearing on such a page.

63. Surely when Mr Buffel interviewed the Applicant during his investigation, he would have been told about how the money was spent even though there was some paper trail not available at the time. He had something to work on. A reasonable investigator, who wanted to get to the bottom of his investigation would have gone an extra mile to confirm with the alleged service providers what he was told by the Applicant if he suspected mismanagement of funds. Only after doing such proper investigation would he be put in a position to make an informed recommendation on an appropriate action to be taken if there is any. This, he did not do. Mr Buffel was not a reliable witness when one looks at the contradictions in his version.

64. An audit was done for the period of 2010 by a registered accountant and it declared the school’s preparations of financial statements as appropriate. The audit made comments on some torn up or missing receipts from books. If receipts were torn from books or missing, this then supports the Applicant’s version that at the time of the investigation he did not have such documents, moreover, he was not the one keeping financial records but such were kept by Ms Teno.

65. It must not be ignored that Ms Teno, was a financial clerk, who has a history of using money for her own benefit without authorisation, whose duty was to keep financial records but was not taken to task when Mr Buffel did his investigation and found some financial documents missing. The question that still remains to be answered is why there was no negative report made against her as well?

66. No witness testified that there was money which was budgeted for certain school resources but that there was a lack of such resources due to such money missing. How then did the Respondent get to a point where it decided that money was embezzled or misused? Which money was embezzled or misused?

67. It is the Applicant’s testimony that he had to go to the service providers to obtain copies after he was dismissed. One could ask why he did not do it when he went to the disciplinary hearing but a benefit of doubt could be given to him that he may have been under the impression that since he was not the one responsible for keeping the records, he may not be found guilty but, unfortunately for him, he ended up being dismissed. Upon seeing the seriousness of the dismissal and that his financial clerk had failed him by failing to do her duties of keeping important documents, he did not simply sit back and accept his dismissal, he made efforts to seek all copies from all service providers. The attempts he made to clear his name cannot be ignored simply because proof was obtained after the dismissal.

68. The evidence before me indicates that the funds which forms basis of the charges against the Applicant were all approved by the SGB. The Applicant submitted proof which accounted for the money which was given to him by the SGB.

69. The Respondent was in possession of the documentary proof the Applicant intended to use to explain how money was spent since 2013 and some during the investigation as conceded to by Mr Buffel yet made no effort to make its own investigation regarding such evidence to confirm any discrepancies it may perceived were present. Not even an attempt to secure relevant witnesses to dispute such proof. The only argument the Respondent seemed to hold on to was that such proof was not available during the investigation process and at the disciplinary hearing. Therefore, by failing to successfully challenge the authenticity of the documentary evidence or copies, such evidence stands. More so, it was collaborated by testimonies of all the witnesses when they said the SGB had approved all the funds applicable and how they were spent.

70. Having said all of the above, and taking into consideration all the facts before me, it is clear that there is no evidence before me to prove that the Applicant embezzled or mismanaged school finances. There is no proof before me that the Applicant used the school money for his own personal use or that he had acted in a dishonest way. It is my finding that the Respondent failed to prove that the Applicant is guilty as charged and that dismissal was warranted.

71. Therefore, the Applicant’s dismissal is found to be substantively unfair.

Remedy
72. The Constitutional Court in Booi v Amathole District Municipality and others held as follows at par [38] “ it is plain from this Court’s jurisprudence that where a dismissal has been found to be substantively unfair, “reinstatement is the primary remedy” and, therefore, “[a] court or arbitrator must order the employer to reinstate or re-employ the employee unless one or more of the circumstances specified in section 193(2)(a)-(d) exits, in which case compensation may be ordered depending on the nature of the dismissal”.
The court further at par [39] held that “the primacy of the remedy of reinstatement is no coincidence. It is the product of a deliberate policy choice adopted by the Legislature.

73. In this matter, no argument or weighty reasons accompanied by tangible evidence were canvassed that reinstatement would be intolerable or that there were factors existing making it impossible for reinstatement. Having considered that there is no proof that there is any intolerability, section 193(2) of the LRA dictates that reinstatement be ordered.

74. Having succeeded in this arbitration, the Applicant must be granted the remedy for which he has been fighting for all along, reinstatement. It must be noted that this is not necessarily a straight forward request because of the effluxion of time since his dismissal. I am awake to the fact that the Applicant was dismissed in 2012 already, almost 10 years ago and as such ought to be reinstated retrospectively. In this case, I must consider that the Applicant also played an ignorant role when he decided to attend his disciplinary hearing knowing fully well that he had no proof against the allegations against him. The charges were clear and the exercise he undertook after his dismissal to get copies of slips from the service providers could have been taken immediately when he received the notice to attend the disciplinary hearing. He knew that the records were not available at the school. Had he done that, there is a high probability that he may have avoided being dismissed and would have avoided suffering the loss of salary for this long.

75. Section 193(1)(a) of the LRA states that the reinstatement may be “from a date not earlier than the date of dismissal”. The Booi case (supra) held that “a court or an arbitrator may address, among other things, the period between the dismissal and the trial as well as the fact that the dismissed employee was without income during the period of dismissal, ensuring however, that the employer is not unjustly financially burdened if retrospective reinstatement is ordered or awarded. The order must be just and equitable.

76. In Equity Aviation Services (Pty) Ltd v CCMA & Others , and in Xstrata South Africa (Pty) Ltd (Lydenburg Alloy Works) v National Union of Mineworkers obo Masha and Others the Court held: “…reinstatement is the primary remedy under the LRA and involves placing an employee back in employment as if the dismissal had never occurred. If the exceptions to the remedy of reinstatement do not apply, the Labour Court and arbitrators only have a discretion with regard to the extent to which reinstatement should be made retrospective”.

77. In this matter, it is not the Applicant’s case that he had immediately appealed his dismissal and submitted the proof he obtained. Since the Applicant only made the Respondent aware of the proof of how money was spent at the arbitration of April 2013, I deem it fair and just that the retrospectivity of the reinstatement be limited to the period between the date of the first arbitration hearing, 20 April 2013 to the date of this arbitration award.

78. This therefore means that the back pay will be for 9 years and 4 months, which in total is 112 months. The Applicant earned a gross salary of R35 996.25 per month. The back pay calculations are as follows:

R35 996.25 x 112 months = R4 031 580

Award
79. In the result, the following award is made:
1. The dismissal of the Applicant, Mr T.D Ramabele by the Respondent, Free State Provincial Department of Education is found to be substantively unfair.

2. The Free State Provincial Department of Education is ordered to reinstate Mr T.D Ramabele into its employ on terms and conditions not less favourable than those that applied prior to his dismissal.

3. As a result of the retrospective reinstatement, the Free State Provincial Department of Education is ordered to pay Mr T.D Ramabele as back-pay, the amount of R4 031 580, less any statutory deductions applicable by no later than 20 October 2022.

4. Mr T.D Ramabele is to tender his services to the Free State Department of Education on 01 September 2022.


Zoliswa Taba

ELRC Panellist