ELRC146-22/23WC

IN THE ELRC ARBITRATION
BETWEEN:

MATODI ABRAM MODISE “the Applicant”

and

DEPARTMENT OF EDUCATION – GAUTENG PROVINCE “the Respondent”


ARBITRATION AWARD


Case Number: ELRC685-21/22GP
Last date of arbitration: 31 August 2022
Last of written closing arguments received on: 12 September 2022
Date of award: 10 October 2022 (Extension granted)

COEN HAVENGA
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
Details of hearing and representation
1. The last day of the hearing of the arbitration took place on 31 August 2022 at the offices of the Respondent in Johannesburg. The Applicant is Mr Modise, MA, represented by Mr Mphahlele, M, an advocate from the Pretoria Society of Advocates. The Respondent is the Department of Education – Gauteng Province, represented by Mr Chabalala, A.

Issue to be decided

2. The parties conducted a pre-arbitration meeting, and agreed that the following facts are common cause, and are accepted as proven:
2.1 The Applicant is employed by the Respondent as a Labour Relations Officer.
2.2 The Applicant is earning a salary of R47 957,00 per month.
2.3 The Applicant was charged with two counts of misconduct in terms of section 18(1)(f) of the Employment of Educators Act 76 of 1998 (“the EEA”) in that on 6 October 2020 and 16 March 2020 respectively he unjustifiably prejudiced the administration, discipline and/or efficiency of the Department in that he entered into settlement agreements for case numbers ELRC19-20/21 and GPBC1572/2019 respectively without the necessary authorization to do so.
2.4 The Applicant pleaded not guilty but was found guilty in respect of both charges and was issued with a sanction of a final written warning and two months’ unpaid suspension.

3. The following issues were placed in dispute to be decided by the arbitrator:
3.1 Whether or not the Applicant entered into the settlement agreements as per the allegations against him without authorisation.
3.2 Whether or not whether the Respondent committed against the Applicant an unfair labour practice related to disciplinary action short of dismissal as provided for in section 186(2)(b) of the Labour Relations Act 66 of 1995 (“the LRA”), and if so, what relief is to be awarded.

4. The Applicant disputes the procedural fairness of the disciplinary action in that the chairperson of the hearing was at the same level as him and was not an employee senior to him as required by the collective agreement or the EEA. The Respondent disputes that there is such a requirement in a collective agreement or the EEA.

5. The parties agreed that the arbitrator is to determine whether the Respondent committed an unfair labour practice related to disciplinary action short of dismissal as provided for in section 186(2)(b) of the Labour Relations Act 66 of 1995 (“the LRA”), and if so, what relief is to be awarded.

6. The relief sought by the Applicant is that the guilty verdict and sanction be set aside, and that the Applicant be reimbursed with the two months’ salary that was forfeited.

Summary of evidence

The proceedings have been recorded digitally, and a summary of the Employee’s and Employer’s witnesses’ evidence follows below. What follows is only a summary of evidence deduced at the inquiry and does not purport to be a verbatim transcription of all the testimony given. The digital record of the proceedings will reflect the complete testimony of the witnesses.

Applicant’s case

7. The Applicant submitted the documents contained in Bundle A.

8. Matodi Abram Modise (“Modise”), the Applicant, testified under oath that he is employed by the Respondent as a Deputy Chief Education Specialist (DCES) since 2017. He was not trained in representing the employer in arbitrations.

9. In respect of count 1 he entered into the settlement agreement with Dr Bannister, M (“Bannister”). She wanted to be translated from an Educational Therapist to a School Psychologist and wanted to be paid her remuneration retrospectively from 2012. She lodged a dispute with the ELRC after the Department did not accede to her request. Modise was the Department’s representative in the dispute. The witness he was supposed to rely on confirmed Bannister’s claim to be translated. Modise discussed the matter with his manager, Ms Jaffer, M (“Jaffer”). He suggested to her that the Department settle with Bannister as he had no opposing witnesses.

10. Jaffer told Modise to draft a request to settle the matter, and to give it to the district director, Mr Metsing, BP (“Metsing”), to sign off on. A8 - A10 contains the request to Metsing. Metsing signed it on 28 September 2020. On 29 September 2020 Modise sent the signed request to Jaffer as per her request.

11. Jaffer did not respond to him. The matter was postponed twice because he did not have a mandate to settle the dispute. He was waiting to hear from Jaffer on how to proceed. He assumed they were in agreement that the matter should be settled. He expected of her to contact him if she did not agree.

12. Jaffer did not revert back to him and on 6 October 2020 Modise entered into the settlement agreement with Bannister. He signed the agreement on behalf of the Department. He sent a scanned copy to Jaffer on 7 October 2020. She did not respond.

13. In November 2020 Bannister informed Jaffer that she was withdrawing from the settlement agreement. Jaffer did not mention the settlement agreement in November 2020, December 2020, or January 2021. She did not say the agreement was invalid. According to Modise the settlement agreement was a full and final settlement. In January 2021 Modise attended an arbitration for the same dispute under the same case number. Jaffer joined the arbitration proceedings virtually and informed the commissioner that a settlement agreement had been signed, that the ELRC lacks jurisdiction in the concluded matter and that Bannister should go to the court if she challenged the agreement. The commissioner later issued the ruling reflected in A12, confirming that the ELRC did have jurisdiction.

14. Modise’s appointment as representative required him to obtain a mandate from the relevant authority, i.e. senior management, to enter into a settlement agreement. He did what Jaffer instructed him to do and drafted the request. In the past she authorised him to sign other settlement agreements. He had to obtain a mandate from his supervisor. There is no requirement that it must be the Head of Department (HOD). Jaffer had to obtain authorisation from the HOD, if that was what was required.

15. A19 reflects the agreement which formed the basis for the second charge. It is not a settlement agreement. It was a dispute in the GPSSBC. It was a claim for overtime and night shift allowances. At the Council the 1st applicant in that case, Dlamini, indicated that the Department owed them the overtime and night shift allowances. The principal admitted that they were entitled to the payment of the overtime and night shift allowances. She said she made submissions for payments to the district office. Modise entered into the agreement as reflected in A19. Jaffer was aware of the matter. They did not speak about a settlement. The principal was the only witness. She would have testified that she did submit the claims and that the problem was with the district office.

16. The Respondent did not suffer any losses in respect of both the charges. The Bannister matter is still in process. B24 is a request for settlement of the Bannister matter dated 9 March 2021. It was signed by the director, Mr Selowa, P (“Selowa”) on 23 March 2021. Modise’s request was sent on 29 September 2020, eight days before the arbitration date, which gave enough time for Jaffer to have formalised it. The later agreement that was approved was the same as what Modise settled for, i.e. translation to School Psychologist. the matter was settled by an agreement.

17. During cross-examination Modise testified that the Bannister case was postponed several times before he requested a mandate to settle it. It was due to sickness and bereavement.

18. Modise is the head of labour relations in the district. He has three employees reporting to him, i.e. two Senior Education Specialists (SES) and one senior personnel practitioner. He supervises their work. Modise represents the Respondent in arbitrations. It is part of his duties set out in his appointment letter.

19. In respect of the Bannister case, Jaffer agreed in principle that they should settle. The fact that she did not respond to his request for settlement, means she agreed. He thus had a mandate to enter into the settlement agreement with Bannister. Jaffer even used the settlement agreement to object to the jurisdiction of the ELRC when later Bannister withdrew from the agreement.

20. Selowa is Modise’s Director of Labour Relations. He requested authorisation from Selowa through Metsing. Jaffer told Modise to include Metsing in the request. Metsing approved the request to go further to Selowa.

21. B9 is Modise’s response in respect of the Bannister settlement, as requested by Selowa. He wrote it because he was asked where he got the mandate from to enter into a settlement agreement with Bannister. He did not state in his response that he got a mandate from Jaffer and Metsing. He explained in person to Selowa what happened.

22. Modise had the signed approval of his request from Metsing, and a verbal agreement by Jaffer to enter into the settlement agreement with Bannister.

23. Modise does not regard the agreement with Dlamini and others as reflected in B16 as a settlement agreement. The contents suggests that the matter was not concluded. It was only a commitment to pay. Modise agreed that nothing in B16 shows that it was not an agreement. He made Jaffer aware of the agreement. He does not see it as a settlement agreement. Modise agreed that he did not have a mandate to enter into the agreement with Dlamini and others.

24. B24 is a request for approval of the settlement with Bannister which Modise entered into. Dlamini and others were not paid twice. Jaffer gave Modise permission to settle with Bannister when she gave him the instruction to draft the settlement agreement.

25. Charmaine Trent (“Trent”) testified under oath that she is a DCES in Krugersdorp currently. She is a specialist in labour law. Jaffer was Modise’s manager. To settle, he had to approach her and indicate his intention to settle. He then has to send a proposal for settlement to Jaffer, who has to sign it off and send it to Director Selowa. Jaffer is the Modise’s senior management. Once a proposal is submitted to Jaffer, Modise had to wait for it to come back signed. If Jaffer agreed that there were no prospects of success, Trent used to assume the proposal will come back signed. Her perception however changed as a result of what happened to Modise.

26. Trent is currently appointed in the Bannister case. The ULP dispute was changed to an interpretation and application dispute. If there was a settlement in the Bannister case, she would not have been saddled with the case now. Legally it could not have been an agreement. Modise would have expected an answer from Jaffer. If the manager does not send the proposal further up the line, it would delay the matter.

27. Trent does not regard the agreement with Dlamini as a settlement agreement, as it was not enforceable. The agreement reflected in A19 does appear to be a settlement agreement. There are no amounts mentioned therefore it is not enforceable.

28. During cross-examination Trent testified that once you have requested for the approval to settle, you must wait for the response. She also settled cases without official authorisation in the past. Trent does not agree that Modise’s conduct prejudiced the administration of the Department. In theory he probably should have waited for confirmation of authorisation.

Respondents’ case

29. The Respondent submitted the documents contained in Bundle B.

30. Moefiedah Jaffer (“Jaffer”) testified under oath that she is a Chief Education Specialist (CES) and Modise’s immediate supervisor. She did discuss the Bannister case with him. She believed he had witnesses. Later he indicated that he still did not have a case. She told him to write a proposal to settle the matter, which she would assess, and pass on to the director for his consideration and approval. Modise did submit the request for settlement. Neither she nor the Department responded to the proposal. She did read it and wasn’t quite convinced that he had no prospects of success, and that the proposal was a solid one. There was also not enough time for the proposal to go through all the steps. Eight days was not sufficient time, given the magnitude of the case.

31. Jaffer did not give Modise the authority to settle the dispute, as she does not have that power. The proposals to settle go to the Director of Labour Relations. She reports to the Director. B13 reflects the settlement agreement with Bannister. There was no telephone agreement between Modise and Jaffer authorising him to settle. Although the amount is not specified, it still remains a settlement agreement. Bannister had been translated. The Department believed it was bound by the agreement. Modise represented the Department and signed the agreement. The financial relief is now being arbitrated. Jaffer drafted the proposal for Bannister to be translated as reflected in B24.

32. Jaffer does not authorise settlements. Modise had no mandate to settle with Dlamini and others, as reflected in B16. He was not supposed to enter into that settlement agreement without authorisation. It is a valid settlement agreement, as the amounts to be paid are standardised amounts.

33. Jaffer corrected herself and testified that Bannister had not been translated yet. Modise is properly qualified for his position. He would not have been appointed as DCES if he was not. He would have had to display his knowledge of representing the employer in the Councils during the interview process. Lack of training is not a valid excuse for entering into the settlement agreements without authorisation.

34. During cross-examination Jaffer testified that she did not revert back to Modise on his request for settlement. There was no in-principle decision or agreement to settle the Bannister case. There was no consensus that there were no witnesses. Jaffer spoke to people, and she was of the opinion that there were witnesses. She referred Modise to those witnesses. It is his version that they did not support the employer’s case. She told him to write the proposal for settlement. The proposal did not create the impression of a mandate to settle. It is to be considered first. She was not satisfied with the proposal. Jaffer agreed that it was not best practice not to pass it on, and not to respond to the proposal. She was not charged for not responding to the proposal.

35. There was no in-principle decision to settle the Bannister case. She does not and did not have the authority to grant a mandate to settle any dispute. She is not part of senior management.

36. B16 clearly states that it is a settlement agreement. It contains the wording “the parties agree that the matter is settled in the terms outlined above”.

37. Patrick Selowa (“Selowa”) testified under oath that he is the Director of Labour Relations. A mandate to settle must come from him. He oversees the management of all disputes in the Department. He appoints the Department’s representatives in disputes. That appointment letter states that the representative must investigate the prospects of success, and if there are none, have a discussion with Selowa, and if he agrees, he would advise that a proposal to settle be generated. Selowa can consider it, support it, and take it to the HOD. Selowa also may give a mandate to settle. Under no circumstances may a dispute be settled by a representative of the Department without Selowa having given the go-ahead.

38. Selowa did not give a mandate to Modise to enter into a settlement agreement with Bannister on behalf of the Department. He learned about the agreement afterwards and then questioned whether Modise had the authority to sign it. He does not know what discussions Modise had with Jaffer, but she had no authority to give Modise a mandate to settle. The appointment letter as representative clearly states Modise first had to obtain permission from Selowa.

39. Selowa denies that he ever complimented Modise where he settled without a mandate. He would never have done that. Selowa disputes Trent’s interpretation that it isn’t a settlement agreement without an amount. The absence of an amount does not render it invalid. The intention to settle the dispute is clearly indicated by the parties. B15 contains the wording “the signatory confirming that he is duly authorised to conclude this agreement”, which should have alerted Modise to the fact that he had no authority to bind the Department.

40. During cross-examination Selowa that he has the authority to five a mandate to settle if there is not enough time to follow the route to the HOD. If Modise got no response from Jaffer, he had the responsibility to contact Selowa for advice. He had no right to regard the lack of response as if a mandate had been given. It wasn’t correct for Jaffer not to respond. Modise had no right to sign based on the in-principle discussions he had with Jaffer. Discussions with her does not translate into authority from Selowa to enter into a settlement agreement.

41. The issue of training is irrelevant. What is relevant, is whether Selowa gave a mandate or not. After Selowa became aware of the agreement, he wrote an email to Modise requesting an explanation why he entered into the agreement without Selowa’s authority. Jaffer denied that she gave Modise a mandate to settle.

42. Selowa recommended corrective measures against Modise. He queried the signing of the agreement as soon as he became aware of it.

Analysis of evidence

43. Both parties submitted extensive written closing arguments which form part of the record and will not be repeated here. I have considered the arguments, principles of law, Codes of Good Practice together with the other evidence, oral and documentary, presented by the parties during the arbitration, as reflected in the record of the hearing.

44. The Applicant claims that the Respondents committed an unfair labour practice relating to disciplinary action short of dismissal, i.e. the issuing of a sanction of unpaid suspension for a period of two months and a final warning.
45. The statutory provision, in terms of which this tribunal may arbitrate disputes about the fairness of disciplinary action short of dismissal, is to be found in section 186(2)(b) of the Labour Relations Act, no. 66 of 1995, which defines unfair labour practices.
46. The onus in an unfair labour practice disputes falls on the Applicant. The standard of proof applicable in hearings of this nature is identical to the civil standard – “the (applicant) must prove the case ……………on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1. The employee must prove not only the existence of the labour practice, if it is disputed, but also that it is unfair. The employer must actually have done something or refused to do something.
47. Mere unhappiness or a perception of unfairness does not establish unfair conduct - see Du Toit et al Labour Relations Law (5th ed) 488. What is fair depends upon the circumstances of a particular case and essentially involves a value judgement. The fairness required in the determination of an unfair labour practice must be fairness toward both employee and employer (see National Union of Metalworkers of SA v Vetsak Co-Operative Ltd & others 1996 (4) SA 577 (SCA) 589C–D; National Education Health & Allied Workers Union v University of Cape Town & others (2003) 24 ILJ 95 (CC) paragraph 38).
48. The arbitration of the dispute in casu entails a review of the employer’s actions. The Constitutional Court’s examination of the concept of fairness where it has been held that the arbitrator is not given the power to consider afresh what he would do but to decide whether what the employer did was fair, is relevant - see Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] JOL 20811 (CC).
49. In respect of both charges the crux of the allegations against the Applicant is that he unjustifiably prejudiced the administration, discipline and/or efficiency of the Department in that he entered into settlement agreements without the necessary authorization to do so.
50. I find Applicant’s argument that the agreements are not valid settlement agreements, to be devoid of substance. The terms of both agreements clearly define the agreements as settlement agreements. The fact that it does not contain amounts, does not mean that it is not quantifiable, and not enforceable. The Applicant clearly intended both agreements to be settlement agreements in line with the terms of the agreements. That subjective and conscious action was subject to the provisions of his appointment as representative of the Respondent in the respective disputes. The rules and terms of his appointment as such are clear that he was not allowed to enter into any settlement agreement without authority from senior management, and in this case, the Director of Labour Relations, Selowa. The evidence of the Respondent stands undisputed that Jaffer had no authority to give Modise a mandate to settle the disputes.
51. Selowa testified without contradiction that he did not give the Applicant the required authority to enter into the two settlement agreements. The Applicant’s argument that because Jaffer did not respond to his request for settlement, she tacitly gave a mandate to settle, is without substance. With the knowledge of the terms of his appointment, he should have followed up on his request, or take advice from Selowa, if Jaffer was not forthcoming. Although Jaffer’s lack of response is regrettable, as she conceded to, it did not justify the Applicant’s signing of the agreement without authority. The Applicant’s own witness, Trent, reluctantly conceded that the Applicant had to wait for approval of his request for settlement, before entering into a settlement agreement in the Bannister case. .
52. It must be noted that the Applicant never placed the issue of inconsistent application of discipline in dispute in the pre-arbitration agreement, which is binding on the parties, nor in his opening statement. I will therefore not pronounce of the issue.
53. The fact that Jaffer argued at a later sitting of the Bannister dispute that the settlement agreement with Bannister excluded the jurisdiction of the ELRC, does not condone or justify the fact that the Applicant entered into that agreement without the prescribed authority.
54. The Applicant grasped at straws when he argued that the lack of training in how to conduct arbitrations was the reason he signed the settlement agreements without the required authority. He is a labour law specialist, appointed as DCES in charge of s district. He merely had to refer to the terms of his appointment as representative in the disputes to know that he should obtain a mandate from senior management before entering into a settlement agreement on behalf of the Respondent.
55. The Applicant testified that the Bannister matter was postponed twice because he did not have a mandate to settle, which confirms that he was aware of the lack of authority and the requirement to obtain authority to settle the dispute.
56. The Dlamini and others agreement clearly states that it is a settlement agreement. It contains the wording “the parties agree that the matter is settled in the terms outlined above”, which makes it crystal clear. The Applicant agreed that he did not have a mandate to enter into this settlement agreement. His argument that it is not a settlement agreement, is devoid of substance. It is any event immaterial whether the agreements were valid and/or enforceable, but relevant whether the Applicant had the requisite authority to enter into what he at the time of signing believed to be valid settlement agreements.
57. I find on a balance of probabilities that the Applicant on 6 October 2020 and 16 March 2020 unjustifiably prejudiced the administration, discipline and/or efficiency of the Department in that he entered into settlement agreements for case numbers ELRC19-20/21 and GPBC1572/2019 respectively without the necessary authorization to do so. The evidence shows on a balance of probabilities that the Applicant made himself guilty of the misconduct which he had been found guilty of.
58. Any sanction imposed for misconduct must be an “appropriate” remedy, in the light of the facts of the case. The employer should consider the circumstances surrounding the commission of the offence, the employee’s blameworthiness, consistency in dealing with similar offences, the employee’s past disciplinary record, the employee’s length of service and the consequences of the particular transgression. Misconduct that unjustifiably prejudiced the administration, discipline and/or efficiency of the Department, and compromised and jeopardized the interest of public funds, must be regarded as being serious misconduct that would even lead to dismissal in some instances.
59. The risk and liability involved in binding the Respondent in substantial settlements agreements without the oversight function of senior management, is huge. The fact that the Applicant repeated the misconduct for a second time, is of an aggravating nature. The Applicant also showed no signs of remorse, or acceptance of wrongdoing, but rather elected to blame Jaffer, Metsing and Selowa for his conduct.
60. In the light of the seriousness of the transgressions I am of the opinion that the sanction that was imposed, i.e. an unpaid suspension for a period of two months coupled with a final warning, is appropriate in the circumstances and cannot be regarded as being unfair.
61. Although the Applicant stated in the pre-arbitration minutes and in opening statements that he disputes the procedural fairness of the disciplinary action in that the chairperson of the hearing was at the same level as him and was not an employee senior to him as required by the collective agreement or the EEA, he presented no evidence of any kind in that regard during the arbitration hearing.
62. I therefore find no substance in the argument that the Applicant was treated unfairly. In casu where there is no obvious or glaring deviation from the prescribed process, it would not be justified to interfere with the exercise of management’s discretion.
63. I am satisfied that the Respondent did not commit a practice that would constitute unfair action by the Respondent that resulted in unfair disciplinary action which falls within the definition of an unfair labour practice as provided for in section 186(2)(b) of the LRA. The Respondent did not act irrationally, capriciously or arbitrarily. Accordingly, the claim must be dismissed.
Relief

64. The Applicant is not entitled to relief.

Award

65. The application is dismissed.


COEN HAVENGA
Senior ELRC Arbitrator/Panelist
10 October 2022
ELRC685-21/22GP