ELRC713-21/22GP

Commissioner: Lanthis Taylor
Case No.: ELRC713-21/22GP
Date of Award: 14 December 2022

In the Arbitration between:

Professional Educators Union obo David Kubheka Applicant
(Union/Applicant)

and

EDUCATION DEPARTMENT GAUTENG Respondent
(Respondent)

Union / Applicant’s representative: Mr. Klaas Mohlatlole (Union official) and David Kubekha
Telephone:
Telefax:
Email:

First Respondent’s representative: Mr. Matodi Modise
Telephone:
Telefax:
Email:

PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. An arbitration hearing was convened under the auspices of the Education Labour Relations Council on 23 November 2022 and concluded on 5 December 2022 by way of the virtual platform, Zoom. The applicant, Mr. David Kubekha was represented by Mr. Klaas Mohlatlole, an official of Professional Educators Union. Mr. Matodi Modise represented the respondent, the Education Department of Gauteng. The proceedings were conducted in English and were digitally recorded.

THE ISSUE IN DISPUTE
2. I must determine whether the applicant’s dismissal was fair.

BACKGROUND TO THE ISSUE
3. The applicant was employed as a primary school educator in the intermediate phase. He commenced employment with the respondent on 13 March 2013 and his services were terminated on 25 May 2021. At the time of his dismissal, the applicant was earning R2 4750.90 per month. There were five allegations levelled against the applicant of which he was found guilty of three. At the internal disciplinary hearing, the presiding officer meted out a sanction of three months’ unpaid suspension. Dissatisfied with this, the applicant made representation to the Member of the Executive Council (MEC) for Education, Gauteng. The MEC overturned the original sanction and substituted it with one of dismissal. The applicant is challenging the procedural and substantive fairness in this regard. He seeks re-instatement retrospectively to the date that the MEC imposed the sanction of dismissal.

SUMMARY OF THE EVIDENCE & ARGUMENTS:
4. Both parties presented bundles of documents in support of their versions. The respondent called two witnesses while the applicant testified on his own accord.

5. I am required by the LRA to provide brief reasons to substantiate my findings and determinations in this dispute. As such despite considering all the submissions presented, I will only deal with what I believe is relevant and what will relate to the core issues in dispute. The core issues are whether the applicant’s submission to the MEC constituted an appeal or whether it constituted a plea and whether the MEC was entitled to impose a harsher sanction without the applicant being afforded an opportunity to make representations before the imposing of the harsher sanction.

OPENING STATEMENTS
6. The respondent’s representative, Mr. Modise stated in opening that the MEC acted within his mandate and has the right to tamper with a sanction if that sanction is not appropriate. The applicant appealed to the MEC and as such gave the MEC the right to tamper with the decision.

7. The applicant’s representative stated in opening that the applicant will prove that the applicant was seeking the implementation of the sanction in a different manner. The application letter would outline the applicant’s intention. Furthermore, the Code of Good Practice for Educators indicates how the MEC should handle appeals and that if the MEC intends to impose a harsher sanction, then the employee needs to be informed so that he or she can make representations in that regard.

THE RESPONDENT’S CASE
8. The respondents first witness, Moefidah Jaffer, testified that she is employed as a chief education specialist supervising five districts and the head office of department of education in Gauteng. Ms. Jaffer explained the appeal process. She stated that when an employee is not happy with a sanction or the process, such employee may appeal and he or she is advised of the right to appeal to the MEC or the Minister, as the case may be, in line with section 9 of the Employment of Educators Act.

9. She stated that an employee completes a pro-forma template and has to provide reasons for the appeal to the MEC. She confirmed that she had not personally received the applicant’s appeal but saw the pro-forma form well after the matter had been attended to. Ms. Jaffer indicated that the applicant had submitted that the appeal authority takes his personal circumstances into account, was asking the MEC to “modify” (change the sanction) and was seeking amnesty which in her view amounts to not wanting to be held accountable. The applicant appealed against the sanction imposed by the presiding officer. She testified that the MEC has the authority to change the sanction of the presiding officer. The MEC does not have to inform the employee of an intention to change the sanction as it is the employee who asks the MEC to consider a change of a sanction imposed by the presiding officer. The MEC is authorized by law to change a sanction and the employee, when he or she appeals, is aware of this. She testified that there is no provision in the Employment of Educators Act that the MEC has to advise an employee of an intention to change a sanction.

10. During cross examination, Ms. Jaffer confirmed her view that even if the applicant was not contesting the findings levelled against him, he was dissatisfied with the sanction or outcome after having been found guilty. Her view is that the applicant was seeking that the sanction be changed. The applicant wanted the sanction of unpaid suspension to be debited monthly or be deducted from his pension fund. This amounts to him seeking to lessen the sanction to suit himself. In effect he was asking that the three months unpaid suspension be deferred which has the effect of a lesser sanction. She stated that if the deduction was to be made from his pension fund, then this would in effect not be the sanction of three months’ unpaid suspension.

11. The applicant also proposed that the sanction not be imposed at all and that he be professionally monitored. This shows a lack of taking accountability on the part of the applicant. She confirmed that the MEC considers the appeal on papers and that there is no provision for a new hearing or a re-hearing on appeal. Ms. Jaffer stated that the Department could not access the applicant’s pension for a deduction as it did not have permission to do so. Only the applicant upon termination of employment would be able to do so. She stated that the applicant was dismissed after he appealed to the MEC. The MEC could impose a harsher sanction if the original sanction imposed was inappropriate in relation to the nature of the misconduct, the consequences of the misconduct and the seriousness of the offence. The overriding factor would be the consideration of the child.

12. The respondent’s second witness, Ntombi Mahlangu, testified under oath. She confirmed that she is an Assistant Director: Legal, for the Department of Education in Gauteng. She explained the appeal process and confirmed that an employee has a right of appeal if he or she is not satisfied with either the procedure or the sanction. She confirmed what Ms. Jaffer had testified to and added that the MEC can impose a harsher sanction. The MEC, in terms of the Employment of Educators Act has a discretion and “may” call for further representation. An appeal to the MEC gives the MEC options regarding the sanction imposed by a presiding officer.

13. Mahlangu testified that the applicant’s request for a garnishing of his salary would amount to no corrective measure being imposed as he would then go on with life as if no misconduct took place. She also confirmed that an employee’s pension cannot be accessed and that the MEC can impose a harsher sanction in relation to the seriousness of the offence.

14. During cross examination, she confirmed that she did not handle the appeal and that Ms. Jaffer was also not involved in the appeal. To her knowledge, the appeal documents are prepared by the legal people including service providers but the MEC makes the decisions. She confirmed that the MEC has a discretion to not afford extended representation and that the applicant was requesting leniency or a reconsideration of the sanction. The appeal process is set out in the Employment of Educators Act and the MEC acted in terms of this Act.

15. The respondent closed its case.

APPLICANT’S CASE:
16. The applicant Mr. David Kubheka testified under oath that he was employed at Ratanda Primary School in Heidelberg. He attended a hearing in February 2020 where the presiding officer issued a sanction of three months without salary. When this sanction was delivered at the school, he immediately drove to the ELRC offices where he was told by an unknown lady that he had to make a case on the DMS system. He wrote an appeal to the MEC instead of the Head of Department after being given the forms by a person named Sharon, a Labour Relations Officer.

17. Kubheka stated that he wrote a plea but the argument revolves around whether it is a plea or an appeal. He stated that he was directed by the ELRC to seek the office of the MEC on Google and write to the MEC. He then went to the MEC’s office. He did not approach the employer as he had received incorrect advice. In his submission to the MEC, he indicated that he appreciated the sanction but wanted to express his circumstances in his plea. In response to his submission, he received a dismissal letter. He was then told to leave the school.

18. Kubheka stated that he wanted the sanction to be implemented in another way. He understood his dismissal as the reasons were relayed in the dismissal letter provided to him. He stated that he was assisted by an unregistered union, Union of Educators South Africa. He did not know that they were unregistered. He later approached his present union for assistance. He indicated that he was seeking reinstatement into his job along with the original sanction imposed on him.

19. The Commissioner sought clarity regarding the timeline of the applicant’s testimony. Mr. Kubheka stated that he approached the ELRC the day after his dismissal, 26 May 2021. He was told to look for Dispute Management System on Google and this was how he ended up communicating with the MEC’s office by submitting his plea statement. He confirmed the time line as follows:
• Disciplinary process conducted and concluded
• Outcome rendered by presiding officer – Three months unpaid suspension
• The applicant claims to have gone to the wrong forum with his plea but ended up at the MEC’s office
• The applicant claims to have gone to the ELRC offices the day after his dismissal because was in shock
• According to the applicant, the ELRC gave him guidance to seek DMS on Google in order for him to communicate with the office of the MEC.
• He submitted his plea statement at that point to the MEC’s office

20. During cross examination, Kubheka confirmed that the form that he completed is labelled as “Notice of Appeal” and that he had deleted the word “Findings” and not the word “Sanction”. He stated that he did so as he was under the impression that he was pleading. He confirmed that he had typed the document that was sent as an attachment to the “Notice of Appeal” form and confirmed that anybody receiving these documents would consider that he was appealing. This document was labelled “Appeal”. He further confirmed that he had typed “my reasons for appeal are…” and then he went on to advance his reasons. He also confirmed that he had stated that the “sanction imposed by the educational law be modified..” but did not expect the sanction to go from bad to worse. He disagreed that the word “amnesty” indicated a situation without any repercussions. He confirmed that he was assisted by a union and that he was once a principal. He can read and write but he is still developing and growing. His view is that he was misdirected by the Department into appealing whereas he was pleading. He stated that he would have accepted the three month’s suspension without pay sanction.

ANALYSIS OF THE EVIDENCE AND ARGUMENTS:
21. The matter before me relates to the applicant’s contention that the sanction imposed by the MEC should not have been worse than that of the presiding officer. His argument is that the MEC did not have the authority to elevate the sanction and if he did, then the process of not allowing him the opportunity to make representation was unfair.

22. On the documentary evidence and oral testimony presented to me by all the witnesses, it is evident that the applicant, Mr. Kubheka submitted an appeal to the MEC for consideration. This process is usually initiated when a party is unhappy with the findings and/or sanction of the disciplinary hearing and forms a part of the processes within the Employment of Educators’ Act under section 9 in the Code of Good Practice (Section 9(1)). Thus, either party to the disciplinary hearing may appeal against the finding or sanction by making application using the pro-forma form for such purposes.
23. It would almost naturally be expected that when an employee appeals, it is usually with the intention of having the given sanction lessened and when the employer appeals it can naturally be accepted that the intention is for the given sanction to be enhanced. By lodging an appeal, the party doing so places the decision making in the hands of the MEC or the Minister as may be the case.

24. The applicant’s contention is that, he was not appealing the outcome of his hearing but rather was pleading for the sanction imposed to be considered in a different way. This argument is not sustainable in my view. The applicant lodged an appeal following a disciplinary process where he was found guilty of three very serious allegations viz. assault, falsification of records and allowing learners to submit an assignment on with the same questions that had been written in an examination the day before. There most certainly is no process where one can plead for the sanction imposed to be considered in a different way. This in itself, viewed objectively, constitutes the basis of an appeal because there is an expectation of a change to the sanction imposed.

25. As indicated above, either party may appeal to the MEC or the Minister who must consider the appeal. The MEC or the Minister may uphold the appeal, amend the sanction or dismiss the appeal as outlined in the appeal process in the Code of Good Practice which forms part of the Employment of Educators’ Act. Thus, in amending the sanction, the MEC or the Minister may either lessen the sanction or impose a harsher sanction which is appropriate to the offence. The Code of Good Practice at 9(4) states “If the Member of the Executive Council or the Minister, as the case may be, chooses to allow further representations by the educator, his or her representative or the employer, he or she must notify the educator or the employer respectively of the date, time and place where such representation must be made”. It is thus very clear and evident that the MEC or the Minister, as the case may be, can elect to allow further representations. In reading this, it is clear from the word “further” that the representation made on the pro-forma appeal forms is the one that is considered and that should the MEC or Minister opt to allow further representation then the MEC or Minister has to advise the party it wants representation from. This was testified to by both of the respondent’s witnesses.

26. In the applicant’s case, he was found guilty of among others, the serious offence of meting out corporal punishment which was abolished in 1996. This offence carries the penalty of possible criminal action. The MEC considered his appeal and deemed the sanction of the presiding officer to be inappropriate and changed the original sanction to a harsher one. This is in contrast to what the applicant was expecting. In my view the applicant took the chance of having his sanction reviewed via the appeal process and has unfortunately come off second best. If the sanction had been lessened, amended or amnesty had been given as per the applicant’s appeal documents, then this matter would not have been at this level. Because it did not go his way, the applicant is now claiming that the MEC acted outside of his or her mandate. I disagree with this sentiment. The Employment of Educators Act gives such authority for the MEC or Minister to change a decision made by a presiding officer who similarly has the authority to make a final decision and not merely a recommendation.

27. The applicant is also claiming that the MEC in not allowing him the opportunity to make representations before considering to harshen the sanction, was unfair. While it is as such that the procedure outlined in the Employment of Educators’ Act makes provision for the MEC to hear the appeal on papers, the overriding factor for consideration should be the Audi Alterum Partem rule which forms the cornerstone of fair labour practices. Fair Labour practice is enshrined in section 23 of the Constitution of the Republic of South Africa.

28. In a reportable judgement in the Labour Court, Polokwane under case number JR1281/19, Mmatlou Maria Moloantoa v CCMA and Commissioner Themba Manganyi N.O., the learned judge states at paragraph 39 that the dictum of SARS v CCMA-Kruger must be followed. An employer must show that the dismissal effected is both substantively and procedurally fair. At paragraph 41 of the judgement, it is stated that “it is not the presence of a collective agreement or disciplinary code that matters, but whether those instruments empower the employer to substitute the sanction”.

29. In the matter SARS v CCMA-Kruger, which was a subject of the Labour Appeal Court and the Constitutional Court, the underlying principle is that an “employer’s invalid substitution of a sanction is not merely a procedural irregularity – because of the invalidity of such a decision the decision is also a substantively unfair act – the distinction between substantive fairness and procedural unfairness is a forensic tool of analysis rather than two discrete concepts”. In this instance, the court determined that the Commissioner for SARS did not have the authority to overturn a decision already made because this was in contravention to a collective agreement. This is not the case in casu. The Employment of Educators Act allows the MEC or Minister to change a sanction.

30. In the same matter, under case number CCT19/16 between the South African Revenue Service and Commission for Conciliation, Mediation and Arbitration, Nomsa Mbileni N.O. and Jacobus Johannes Kruger, Chief Justice Mogoeng, as he was, outlined the seriousness of Kruger’s transgression (use of the most heinous word – kaffir) which resulted in the overturning of the original sanction with one of dismissal. He indicated that despite this, the principles of fairness still need to be maintained and found that Kruger would be entitled to some form of recompense in an unfair dismissal where reinstatement is not feasible by reason of the intolerability of the continued working relationship. The situation before me is not dissimilar.

31. In my view the applicant’s dismissal was substantively fair but procedurally unfair if one gives consideration to the failure of the MEC to follow the process of Audi Alterum Partem. In the matter at hand, despite having the right to review a finding on appeal and elevate a sanction, it is my view that when the MEC decided to implement a harsher sanction, he or she should have afforded the applicant an opportunity for further representation as to why a harsher sanction (dismissal) should not be imposed. The MEC did not do this and in my view, this was a procedural defect.

32. The applicant, Mr. Kubheka was dismissed by the MEC who overturned the original sanction. In quantifying the reasons for substituting the original sanction with one of dismissal, it is evident that the MEC considered the intolerability of the working relationship. The MEC in correspondence to the applicant outlines the reasoning behind the decision. The MEC states amongst others that corporal punishment has been abolished since 1996, is in breach of the Employment of Educators’ Act, The South African School’s Act and is in contrast to the Bill of Rights and the Constitution. The MEC further stated in the correspondence that the Department would not be acting in the best interest of the learner if the applicant’s behaviour was condoned.

33. The MEC also referred to the matter of Nampak Corrugated Wadeville v Khoza (1999) 20 ILJ 578 (LAC) where at paragraph 33 the court held that “The determination of an appropriate sanction is a matter which is largely within the discretion of the employer. However, this discretion must be exercised fairly. A court should, therefore, not lightly interfere with the sanction imposed by the employer unless the employer acted unfairly in imposing the sanction”.

34. I have already found that the applicant’s dismissal was substantively fair but procedurally unfair. The applicant seeks re-instatement as a remedy. In line with Section 193(2)(b) and (c) of the Labour Relations Act an arbitrator must re-instate or re-employ an employee unless the circumstances surrounding the dismissal are of such that a continued employment relationship would be intolerable or the dismissal is unfair only because the employer did not follow a fair procedure. In finding that the applicant’s dismissal is only procedurally unfair, re-instatement is not an option.

35. While much emphasis is being place on the applicant’s transgression of administering corporal punishment, one must bear in mind that the applicant was also found guilty of falsifying records by submitting inflated marks for Life Skills on the mark sheet as well as prejudicing the administration, discipline and efficiency of the Gauteng Education Department. These are serious allegations. I am of the view that the circumstances surrounding the dismissal are such that a continued employment relationship would have been intolerable even if I had found that the applicant’s dismissal was substantively unfair.

36. The applicant stated that he accepted the original sanction but initially was only seeking a different way for it to be implemented. By implication of this approach, the applicant accepted the finding that he was guilty of the allegations levelled against him.

37. Apart from this analysis, it is also my view that the applicant was not a very reliable witness. His testimony regarding the timeline is also not sustainable. He was adamant that he approached the MEC’s office after being dismissed yet in truth, he initially was not dismissed but this original sanction was changed to dismissal after he had lodged his appeal about changing the conditions of the three-month unpaid suspension.

38. I have considered all of the circumstances including that the applicant’s dismissal was procedurally unfair, the nature and seriousness of the transgressions, the prescripts of Section 193(2)(b) and (c) of the Labour Relations Act, the LAC and Constitutional Court judgments of SARS v CCMA-Kruger, the nature of the employment relationship, that the State and the MEC as a representative of the State, has a duty of care to each and every learner and that the applicant was found guilty of acting Ultra Vires to his trusted position of Educator.

39. I have found the applicant’s dismissal to be procedurally unfair. The applicant is certainly entitled to some sort of compensation for the procedural unfairness of the dismissal. In my view a solatium of two weeks’ remuneration would suffice as compensation in this instance. The applicant was earning R24750.90 per month. Two weeks’ remuneration would amount to R11424.36 calculated as follows:

R24750.90 / 4.333 = R5712.18
R5712.18 x 2 weeks = R11424.36
40. Thus, in consideration of all of the above, I make the following award:

AWARD:
41. The applicant’s dismissal is procedurally unfair, but substantively fair. The employment relationship is untenable and a continuation thereof would be intolerable. The respondent is to pay the applicant the amount of R11424.36 as compensation for the procedurally unfair dismissal. Payment of the amount of R11424.36 is to be made by no later than 31 December 2022.

L M Taylor
Commissioner