ELRC168-22/23GP

IN THE ELRC ARBITRATION
BETWEEN:

BT BUTHELEZI “the Applicant”

and

DEPARTMENT OF EDUCATION – GAUTENG PROVINCE “the Respondent”

ARBITRATION AWARD

Case Number: ELRC168-22/23GP
Last date of arbitration: 05 October 2022
Last of written closing arguments received on: 12 October 2022
Date of award: 21 October 2022

ZIPPORAH Ngwenya
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 dispute between the Applicant, Mr. Bekizenzo Buthelezi, and the Respondent, Gauteng Department of Education, was referred to the Education Labour Relations Council (ELRC) in terms of section 191 of the Labour Relations Act 66 of 1995, as amended (LRA).

2. The arbitration was virtually held via Zoom on 5 October 2022. The Applicant was represented by Ms. P. Jafta, an official from SADTU. Ms. Valarie Mnisi, a Labour Relations Specialist, appeared on behalf of the Respondent.

3. The proceedings were conducted in English and were digitally recorded.

ISSUE TO BE DECIDED

4. I am required to decide whether the Applicant’s dismissal was substantively fair, and if not, the appropriate relief.

BACKGROUND TO THE ISSUE
5. The Applicant worked for the Respondent at Wiseman Cele Secondary School as an Educator in the year 2009, an HOD in 2018 and a Deputy Principal in 2019. He then accepted an offer of appointment from the Respondent to be a School Principal in the year 2021. In effecting this appointment on persal, according to the Respondent, it discovered that the Applicant had been blocked on the system by the KwaZulu Natal Department of Education (KZN DoE). As a result of this, the Applicant was requested to submit a letter from KZN DoE detailing reasons for blocking him on persal and the sanction thereof. Upon the receiving records from KZN DoE and making its findings, the Respondent subsequently charged and dismissed the Applicant for misconduct.

6. It is alleged that during January 2021 the Applicant committed an act of dishonesty; “…in that; on the acceptance certificate for appointment to the post of Principal at Wiseman an Cele Secondary School you declared that you were never dismissed for misconduct whereas you were dismissed on account of misconduct by the KwaZulu – Natal Department of Education in 2008.” The Applicant maintains that he had not committed the misconduct and challenged substantive fairness of his dismissal.

7. He sought reinstatement. It was confirmed on record that the claim for outstanding payment was revoked from the current dispute.

SURVEY OF EVIDENCE AND ARGUMENTS
8. Both parties presented witness testimony under oath. The bundle of documents handed up by each party were accepted as what they purported to be. The Applicant party bundle is marked bundle “A” while the Respondent’s is marked “R”.

The Respondent’s case
Liswe Jafta (Mr. Jafta)
9. Mr. Jafta was employed by the Respondent as a Director in HR; one of his duties included recruitment of employment. He testified in short, that the blockage on persal lead to a finding that the Applicant had misrepresented himself. The acceptance certificate on page B5 in bundle R indicates that he declared that he hadn’t been previously dismissed due to misconduct, whereas he had.

10. The persal document on page B4 of Bundle R reflects that the Applicant was dismissed in 2007 by KZN DoE. The memo on page B9 of the same bundle reflects that the Applicant had absconeded from work. Page B8 reflects completed government employees pension fund forms. It is indicated in section C that the Applicant had been dismissed. At cross examination, Mr. Jafta admitted that KZN DoE had failed to implement the dismissal on time.

Serasengwe Merafe (Mr. Merafe)
11. Mr. Merafe was employed by the Respondent as Chief Personnel Officer. In short, Mr. Merafe testified that an employee cannot be appointed because of previous dismissal. An employee who was once dismissed must seek to be pardoned by an HOD.

The Applicant’s case
Bekizenzo Buthelezi (Mr. Buthelezi)
12. Mr. Buthelezi reiterated what is reflected in paragraph 5 and 6. He furthermore testified that he only learnt about the alleged dismissal when his persal was blocked and was requested to enquire reasons thereof from KZN DoE. He became aware of the letter titled “your abscondment from duty since 5 March 2007” on 29 July 2021. He learnt about the persal document on page B4 of Bundle R which reflects “dismissed” when he and the Respondent exchanged bundle of documents for arbitration. As for the government employee pension fund forms, he only completed section A, B and E. Section C, completed with a different handwriting as his, was completed by someone else in his absence.

13. Mr. Buthelezi was not being dishonest when he declared on the acceptance certificate, that he hadn’t been dismissed. He would have declared the dismissal had he been aware of it. He had instead resigned from his previous employment on 16 February 2007. He had given the resignation letter to a neighbouring School Principal to submit to the Ward Manager.

Jabulani Mdletshe (Mr. Mdletshe)
14. This witness testified that he was a former Circuit Manager of KwaNongoma from the KZN DoE. He confirmed to have been the Applicant’s immediate Supervisor. A letter regarding abscondment was sent to the Applicant when he stopped reporting for work. It was clear that the letter was never delivered because it was returned. The Applicant was never dismissed.

CLOSING ARGUMENTS
15. Written heads of argument were handed in by both parties. Although considered, I am not going to repeat these arguments here in detail but will refer to them during my analysis of the evidence, where relevant.

ANALYSIS OF EVIDENCE AND ARGUMENTS

16. In Order to determine whether the Applicant’s dismissal was substantively fair, it is necessary to make a finding of whether he is guilty as charged for dishonesty.

17. In SACWU v Dyasi [2001] 7 BLLR 731 (LAC), the Court held that abscondment amounts to repudiation of a contract and that an Employer is entitled to accept or reject it. The acceptance thereof results in dismissal. In this instance, it is made clear from the Respondent’s supporting evidence that the Applicant was deemed discharged from service on the account of misconduct by the KZN DoE. It can thus be accepted that the discharge amounted to dismissal. The Respondent therefore has a burden to prove the fairness thereof.

18. The question now is, why did the Applicant not disclose the said dismissal on the Respondent’s acceptance certificate? According to the Respondent, the Applicant acted out of dishonesty. The Applicant on the other hand disputed this. According to him, he had not been aware of the dismissal at the time he completed the certificate. There is no evidence before me indicating that the KZN DoE had communicated the said dismissal to the Applicant and since Mr. Mdletshe confirmed that the abscondment letter addressed to the Applicant was returned, I am inclined to believe this version. Regarding the completed pension funds form, the Applicant’s version remained unchallenged that section 4 (which mentioned dismissal and was written in a different pattern than other sections on the form) was completed by an unknown individual in his absence. The applicant furthermore testified that the persal document (indicating dismissal on it) was only revealed to him way after he completed the certificate. I accept this testimony and find it probable that the Applicant had indeed not been aware of the dismissal. It is furthermore conceivable how that Applicant wouldn’t think that there was ever a dismissal to disclose since being employed and thereafter promoted twice by the Respondent. The Respondent did not demonstrate how else the Applicant could have known about the dismissal. The Applicant instead claimed to have resigned from his previous employment. The Respondent only contested the possibility of the KZN DoE ever receiving the resignation letter, and not that the letter was written and backdated in reaction of the charge levelled against him (as alluded in the closing arguments). Although it is possible that the letter was never received by Mr. Mdletshe, I do accept that he did write the letter and had handed it to his colleague to submit on his behalf. It is conceivable how the Applicant was under the impression that his termination with his former employer was terminated by way of resignation and not of dismissal. It is then fathomable why the Applicant did not disclose dismissal on the acceptance certificate; he did not know about it. I therefore cannot find that he is indeed guilty of dishonesty.

19. I therefore find that the Applicant’s dismissal was, on a balance of probability, substantively unfair.

Relief
20. According to the pre-arbitration minutes, the Applicant sought reinstatement. Since the dismissal was substantively unfair, and that there isn’t any reason before me that shows that the employment relationship is broken, I do not have a reason to not order the reinstatement.

21. Although the Applicant felt that his life was in danger when he fled from KwaZulu-Natal, he ought to have used the HR21 form to tender his resignation (as expected from all employees) and ensured submitting it to his supervisor. Even if it was at a later stage when his safety was secured. This could have spared the Department from seeking his whereabouts and from delays of finding his replacement at the former school. For this reason, I am ordering the reinstatement without backpay.

Award

22. The dismissal of the Applicant, Mr. Buthelezi , by the Respondent, Gauteng Department of Education is substantively unfair.
23. The Respondent is ordered to reinstate the Applicant effectively from 1 November 2022.
24. The applicant must report to work from 1 November 2022.


Signature:
Zipporah Ngwenya
ELRC Panellist