ELRC797-20/21LP

IN THE ELRC ARBITRATION
BETWEEN:

MASHONELA ANDERSON
MAGWIRA APPLICANT/EMPLOYEE
and
DEPARTMENT OF EDUCATION:
LIMPOPO RESPONDENT/EMPLOYER


ARBITRATION AWARD

Case Number: ELRC797-20/21LP

Last date of arbitration: 1 November 2022
Receipt of closing arguments: N/A
Date of award: 14 December 2022

MATHEWS RAMOTSHELA
ELRC Arbitrator


Case No: ELRC797-20/21LP

ARBITRATION AWARD


DETAILS OF HEARING AND REPRESENTATION

[1] The arbitration hearing was held at the employer’s offices, Polokwane, Limpopo, on several days and finalized on 1 December 2022. The employee, who was present at all sittings, was represented by Advocate R Mathebula. M Matlou, the employer’s employee relations personnel, presented its case. The proceedings were digitally recorded.

ISSUE TO BE DECIDED

[2] I am enjoined to determine whether the employer has committed an unfair labour practice relating to disciplinary action short of dismissal.

BACKGROUND TO THE ISSUE

[3] Common cause issues/facts

The employee is employed as an educator at Tshikota Secondary School. He was found guilty of several acts of misconduct and the sanction meted out was a suspension of three months without pay. He was also issued with a final written warning. His appeal against the finding on the merits as well as the sanction was unsuccessful.

Issues in dispute

[4] Whether the employer’s conduct of punishing the employee with a final written warning as well as suspension of three months without pay amounts to unfair labour practice.

SURVEY OF EVIDENCE AND ARGUMENT

EMPLOYEE’S EVIDENCE

Mashonela Anderson Magwira testified under oath as follows:

[5] As per page 30 of Bundle A, this is a copy of a letter that the Head of Department (hereinafter referred to as “the HoD”), Mr Mpilo, addressed to him, requesting that he should submit Geography scripts and Social Sciences scripts to the circuit office. Mpilo is the one that was supposed to moderate the scripts. The letter did not instruct him to submit to the HoD. The letter written to him is proof that he submitted the marks.

[6] In the abovementioned letter, Mpilo wants him to submit the scripts to the circuit office whereas the procedure is that the scripts should be firstly moderated at the school. It was unusual for him as the educator to directly submit scripts to the circuit.

[7] In compliance with the request, he has indeed submitted the scripts to the circuit office for the attention of the circuit manager, F R Baloyi. The scripts were deposited with the reception after he failed to physically hand same over to Baloyi.

[8] The scripts went missing but it transpired that they were in Mpilo’s hands. He has submitted the scripts and mark sheets to Mpilo.

Under cross-examination she further testified as follows:

[9] He concedes that the letter on page 30 of Bundle A was delivered to him.

[10] The procedure is that pursuant to the learners having written a task and he had marked, he must enter the marks into the mark sheet, make totals and submit to the HoD for moderation. He has followed this process in respect of Grade 8 to 12 Geography. Mpilo requested him to submit the mark sheet for capturing to the administration clerk.

[11] He concedes that on 15 March 2019 when schools were closing for the first term learners did not get the progress reports because the schedule did not pass at the circuit office on account of zero’s in the schedule.

[12] He was shown an example of moderation on page 1 of Bundle A and it was put to the employee that it is standard procedure that there must be feedback to the moderation. The witness did not dispute this version. He further testified that pursuant his alleged submission of mark sheet for moderation on 15 March 2022 he never got any feedback from Mpilo.

[13] The purpose of moderation is that it is a tool for checking important aspects of the work done: it gives feedback to the person whose work is been moderated as well as areas that are challenged. As an educator, he had not asked for feedback in respect of moderation.

[14] It was put to the witness/employee that the norm is that after the HoD has moderated, he/she would put a stamp on the mark sheet and furthermore append a signature as an indication that the mark sheet has been moderated. The employee responded that that is how it is supposed to be done.

[15] On page 16 of Bundle C is a mark sheet for Grade 8 Geography for the year 2019 and he was the relevant teacher.

[16] He knows what a programme assessment is and as an educator he is expected to draft one after receiving an annual general programme assessment. In 2019 he submitted the programme to the HoD.

Procedure

[17] At the disciplinary hearing he was represented by Patricia Ramango from SADTU, the union. He was not given an opportunity to testify for his case but one witness testified for his case. He was not given an opportunity to testify.

[18] He was not given material for the hearing and the employer requested leave to supply copies of the documents. The purpose of making copies is that the employer was trying to comply with brining evidence to the hearing.

[19] He was not given an opportunity to testify. His union representative took it upon herself to lead testimony on the basis that she was representing him according to the procedure.

[20] He was instructed by Mpilo to submit the mark sheets to Olivia Raswiswi, the clerk.

[21] The evidence of Khathutshelo Zacharia Mukwevho, who testified, is not included herein as the employee, through his representative, subsequently announced that he would rely solely on his evidence, thus withdrawing Mukwevho’s evidence.

EMPLOYER’S EVIDENCE

Tshifiwa Richard Mabasha (Mabasha) testified under oath as follows:

[22] He is employed at Tshikota Secondary School as a principal but at the time of the incident was acting as a principal.

[23] The closing date for term 1 was on 15 March 2019, the day on which progress reports were due to be issued. However, the reports were not issued because on the very same day the Heads of Departments (HoD’s) submitted their schedules with gaps. Accordingly, he called one of the HOD’s, Mr Leshabane, to summons all teachers to address the gaps. Only three educators came to account as the employee did not come along.

[24] The witness addressed the only three teachers, namely Messrs Mukhwevo, Mutambi and Sikhweni, who undertook to go and address the gaps. The employee was not on the school premises.

[25] Despite their promises, the three teachers did not address the gaps. He accordingly communicated with the circuit manager to grant the school an extension to submit the schedules as same were needed for approval. The extension was granted to submit until the next Monday on 18 March 2019.

[26] The challenge was that by 16 March 2019 they had already invited parents to collect the reports. When the parents came to school, they could not be given the reports. The members of the School Governig Body (SGB) were accusing him of shielding the teachers. A meeting to check the scripts was scheduled for 17 March 2019 but the employee’s scripts were still not amongst the scripts submitted.

[27] On 17 March 2022 the School Management Team (SMT) wrote a letter to the employee, requesting him to submit the scripts to the circuit office, which was successfully hand-delivered to the employee at his place of residence.

[28] The SMT promised both the circuit manager and parents that they would release the results on 29 March 2022. However, they failed to do so as four teachers, being the employee, Mr Mukwevho, Mr Mutambi and Mr Sikhweni failed to come and rectify.

[29] The SGB told the circuit manager that should the school fail to release the results by 29 March 2019, no teacher would be allowed access to the school’s premises. On 2 April 2019, being the day school re-opened, when teachers arrived they found school gates locked as parents were picketing outside.

[30] When he asked the employee to take scripts to the circuit, it was in respect of all subject he was teaching.

[31] The progress reports were eventually released on 5 March 2019. The employee contributed to the belated release of the reports because for all formal tasks after being written, they have to be marked and captured on a mark sheet and thereafter submitted to the HOD for moderation. The HoD takes the mark sheet to the administration for capturing.

[32] The mark sheets as per page 16 to 21 of Bundle D are not moderated because if they were moderated, they must have the HOD’s stamp and signature.

Charge 11

[33] Every teacher is required to draw a subject programme of assessment, which shows when learners are to write different tasks for the entire year. The programme indicates both formal and informal assessments. Each and every teacher must draw a programme as per subject, which but be consequently submitted to the HoD for approval and consolidation.

[34] The programme of assessment as per page 59 of Bundle D was drafted by Marcus Mpilo, being the HoD.

[35] He does not know if the employee drew up the 2019 programme of assessment as it is the competency of the HoD.

Muvhango Markos Mphilo (Mphilo) testified under oath as follows:

[36] He is employed at Tshikota School as a Departmental Head for natural Science and Social Science. The school closed for the first term of 2019 on 15 March 2019. He normally reports for work between 6h15 and 6h30 and on 15 March 2019 he was aware that the employee was not yet at work. On that morning the only person he saw when he arrived at school is the school principal, whom he told that he was on his way to the circuit office to submit the retrieval of files.

[37] Because he did not receive mark sheets and scripts from educators, he had to return to the school. He was supposed to receive the documents from the employee and other fellow colleagues. On 4 March 2019 he reminded them to furnish him with sheets and scripts for task 1. He said that task 2 should be on 12 March 2019 because the schedules were to be submitted by 13 March 2019 as learners should receive performance reports on 15 march 2019.

[38] He returned to the school at 10h00 and he observed that the employee was not on the school premises.

[39] When the principal was questioning about the mark sheets with empty spaces, he told him that he was still waiting for scripts from his teachers. When he was not getting any joy from the teachers he was expecting to submit to him, being the employee, Siki, Mutambi and Mukhwevo, he went to look for them in the staff room but found that they had already left.

[40] The witness also learnt that the marks were already given to the clerks without his knowledge and without the scripts being moderated. The mark sheets as per pages 16, 18, 19, 20 and 21 as per Bundle D were not moderated as they were never submitted to him together with the scripts.

[41] On page 30 of Bundle A is a copy of a letter that he wrote to the employee requesting him to submit the scripts. He asked the employee to submit the scripts to the circuit office as it was after several deliberations with the SGB and circuit office. The circuit manager said that the scripts should be submitted to the circuit office. It was also after it was noticed that some scripts were not marked but marks were already entered on mark sheets. He did not instruct the employee to submit the scripts to the principal.

[42] On pages 59 is the programme of assessment extracted from district model. On page 28 is the FET Annual programme. The employee did not draw the programme and thus did not submit to him. As an educator, the employee was expected to draw the assessment as it is his core duty because he must show when he is going to assess learners and parents must be aware when the learners are to be assessed.

[43] If the employee had drawn the programme of assessment, it was supposed to have monthly tests as well as weekly tests and also indicate the date to submit for moderation.

[44] When he conducts moderation, should he approve, he puts a stamp and signature on the mark sheet. On 15 March 2019 he did not see the employee and he did not submit the mark sheet.

Closing arguments

[45] As agreed with the Panelist, both parties submitted written closing arguments, which I have taken into account in arriving at the findings and conclusions herein. For the sake of brevity, the minutiae of the very detailed arguments have not been repeated herein.

ANALYSIS OF EVIDENCE AND ARGUMENT

[46] The employee alleges that the employer’s conduct of issuing him with a final written warning and suspension without pay for a period of three months constitutes an unfair labour practice relating to a disciplinary action short of dismissal. As per general principles of evidence, the onus to establish unfairness rests with the employee. Has the employee succeeded to discharge the requisite burden? In my considered view, the employee has dismally failed to do so. My brief reasons follow.

[47] It is common cause that the employer’s conduct aforesaid emanates from the fact that pursuant to a disciplinary hearing which the employee attended, he was found guilty of a raft of charges emanating from his neglect and/or failure to submit scripts and mark sheets to his HoD, Mr Mpilo, for moderation. It is the employee’s assertion that contrary to the employer’s case, he indeed submitted the documentation for moderation.

[48] Both witnesses for the employer, Mpilo and Mabasha corroborated each other’s evidence that the employee, despite repeated reminders and requests, did not submit, with the regrettable consequence that on the day the school was closing for the first term, progress reports could not be issued.

[49] The employee’s evidence is that contrary to the norm that he should submit the scripts to his HoD for moderation, he was instructed to submit to the circuit office. In this regard, the employee is being disingenuous because he was fully aware that the reason for this departure from the norm was that he had already failed to timeously submit to the HoD and as he was then belated and the schools had already closed, the instruction for him to submit at the circuit office was a desperate attempt by the officials to rescue the untenable situation. Mpilo has given unchallenged evidence for this departure.

[50] The employee conceded that the practice is that there must be feedback to moderation and same entails a stamp and signature being appended on the moderation document. The employee admits that he never got any feedback and yet he did not ask for the feedback.

[51] In my considered view, it is improbable that the employee, having not received feedback (as he alleges), and knowing that he did not want to risk being accused of failure to submit, could just fold his arms and not insist on being furnished with the prescribed stamped and signed feedback. The employee neglected and/or failed to furnish any plausible explanation for not asking for feedback. It is my finding that the logical conclusion is that the employee could not have asked for feedback as he knew very well that he did not submit anything for moderation, as is expected of him.

[52] I accordingly find that it is probable the employee never submitted the required documents for moderation. He was accordingly correctly found guilty of the charges levelled against him in this regard.

[53] I must be quick off the mark to point out that the employee was found guilty of serious acts of conduct that are intrinsically serious to have entitled the employer to mete out the harshest penalty of dismissal, especially when one takes into account the impact of his actions. Despite having promised parents and learners that progress reports would be available and should be collected on the day the school closed for the first term, because of the direct results of the employee’s actions, the school management was unable to issue reports to parents. As per unchallenged evidence of Mabasha, the principal, parents were infuriated. As if that was not sufficient, when the school re-opened for the second term, the parents blocked entry to school premises.

[54] It is only because the employer was at pains to correctly practice progressive discipline in compliance with relevant legal precepts that a lesser sanction was meted out.

[55] The employer also found the employee guilty of failure to draw the subject programme of assessment. Despite the employee’s denial, the employer, through the evidence of Mpilo, whose evidence was not successfully challenged, was able to demonstrate that indeed the employee did not draw the programme with the result that Mpilo himself had to step into the raise and draw the programme. The employee was unable to furnish any plausible explanation for his neglect of duties. This is despite the fact that the employer’s evidence shows that the programme of assessment is an important tool that assists in managing the writing of tasks throughout the year.

[56] The employee’s aforesaid failure to draw the programme constitutes serious neglect of duties and the employer was entitled to mete out punishment, which cumulatively with the failure to submit for moderation, rendered the sanctions of final written warning and three months without pay appropriate in the circumstances.

Procedural Fairness

[57] In his evidence, the employee contradicted himself when he alleged that he was not given an opportunity to testify. Under cross-examination he was cagey as to whether it was his own union representative who decided that he should not testify or not and furthermore he gave conflicting versions regarding the allegation that the employer did not give him access to material needed for the hearing. He claims to have been represented by a union official and yet, without proffering any explanation whatsoever, the employee did not call the union official to corroborate his assertions herein. I thus draw an adverse inference with the inevitable conclusion that the allegations are unfounded.

[58] Furthermore, the employee, in his own testimony, repeatedly conceded that the employer asked for leave to avail the requested material. What I find telling is that the employee’s evidence that he requested exculpatory documentation is not supported by any empirical evidence, in particular, there is no evidence of a written request for the material. Seeing that the employee, as per own evidence, was duly represented, one would have expected a written request for the material, especially if the employee contemplated a later challenge to his perceived unfairness occasioned by the employer’s reluctance and neglect to furnish him with the allegedly requested material.

[59] It is my considered view that in the absence of any evidence of a written request(s), the employee’s assertion that he requested but was not furnished with material for the hearing, is baseless and without evidential support. This is so when one considers that the employer is a very formal institution.

[60] From the evidence presented by both parties, the employer held a formal disciplinary hearing to inquire into the alleged acts of misconduct. It is now trite that the hearing need not be a formal one and for the employer to hold a formal inquiry wherein the employee was found guilty, it was sufficient compliance with the relevant guidelines. After all, in his opening statement, as per his advocate, the employee never raised the issue of procedural non-compliance.

[61] In conclusion, I find that the employee has failed to present sufficient evidence to prove that the employer did not follow a fair procedure in arriving at the finding that he was guilty of the charges levelled against him.

AWARD

[70] The employer did not commit an unfair labour practice, as alleged or at all.

[71] The employee’s claim of unfair labour practice is hereby dismissed.

Council Panelist: MATHEWS M RAMOTSHELA


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Signed