ELRC274-22/23NW

Case Number: ELRC274-22/23NW
Commissioner: Ntjatja Klaas Aphane
Date of Award: 28 February 2023

In the ARBITRATION between:

MOTSAMAI BLONDIE MAAKE
(The Applicant)

And

DEPARTMENT OF EDUCATION: NORTH WEST PROVINCIAL GOVERNMENT
(The Respondent)

Applicant’s representative: Lutendo Sephuma (Legal Representative of the Applicant)

Respondent’s representative: Martin Keetile (Labour Relations Practitioner) Dept of Edu: North West

DETAILS OF THE HEARING AND REPRESENTATION:
1. This is the arbitration award in the arbitration proceedings concerning an alleged unfair dismissal related to misconduct dispute between Motsamai Blondie Maake, the Applicant, and North West Provincial Government: Department of Basic Education, the Respondent.

2. The dispute was referred to the ELRC in terms of section 191(5) (a) of the Labour Relations Act 66 of 1995 (the LRA).

3. The arbitration was scheduled and held on 18 October,21 and 22 November 2022 and 01,02 and 03 February 2023.
4. On 18 October 2022, it was virtually held, and legal representation ruling issued. On 21 and 22 November 2022 and 01, 02 and 03 February 2023, the arbitration was held in person, at the Department of Education district offices, at Vryburg.

5. The award is issued in terms of section 138(7) of the LRA.

6. The Applicant was present and was legally represented by his legal representative, Lutendo Sephuma whilst the Respondent was present and represented by its Labour Relations Practitioner. On 01, 02 and 03 February 2023, Lutendo Sephuma was not physically present but attended on line.

7. The Applicant was legally represented and therefore I adopted an adversarial approach to resolve the dispute.

8. The arbitration proceedings were digitally recorded and handwritten notes were taken.

9. Nthabiseng Mokgosi provided translation services to one witness.

10. The prayer sought by the Applicant is retrospective reinstatement.

THE ISSUES TO BE DECIDED:

11. I must determine whether the Applicant must be legally represented or whether legal representation should be allowed or not.

12. I must also determine whether the dismissal of the Applicant was substantively and procedurally fair or not. If not fair, I must determine the appropriate relief.

THE BACKGROUND TO THE DISPUTE:

13. The Applicant started employment with the Respondent on 01 January 1995, as an educator at Limpopo Province. He taught at various schools at Gauteng Province, Limpopo Province and North West Province as temporary educator or on fixed term employment contract. He started at Tlotlang Thuto Secondary School on 11 February 2019, as temporary educator and his temporary employment status was later changed and secured a permanent employment as educator at Tlotlang Thuto Secondary School, earning a monthly salary of R26 500,00.

14. The Applicant’s employment with the Respondent was terminated on 02 December 2021, consequent to an internal disciplinary hearing. The Applicant submitted an appeal against the outcome of the disciplinary process on 10 December 2021, and the outcome of the appeal was communicated to the Applicant on 21 June 2022, confirming the sanction of dismissal.

15. The Applicant referred the alleged unfair dismissal related to misconduct dispute to the ELRC on 20 July 2022.The dispute was scheduled for conciliation process and the parties failed to resolve the dispute at conciliation. The conciliation outcome certificate was issued stating that the dispute remained unresolved.

16. The Applicant referred the dispute for arbitration and requested that the dispute be resolved through arbitration. The dispute was scheduled for arbitration on 18 October 2022.The Applicant’s legal representative applied for legal representation and the Respondent’s representative conceded that for the reasons submitted by the Applicant’s legal representation, does not oppose the legal representation. Ruling on legal representation application was issued granting legal representation.

17. The Applicant’s legal representative and the Respondent’s representative agreed to submit closing arguments on or before 10 February 2023.

18. The Applicant’s dismissal was not in dispute, both the Applicant’s legal representative and the Respondent’s representative conceded that the Applicant was dismissed.


19. The Respondent’s representative called four witnesses (Dora Masibi, Joyce Mabebe,Pulane Sedietso and Tshitannye Magdeline Keamogetse) whilst the Applicant testified in support of his case and his legal representative called two more witnesses (Sabatha Gilbert Sebela and Kutlo Enock Modisane).

20. The Respondent’s representative submitted a bundle of documents “R”, consisting of pages 1 to 41, whilst the Applicant’s legal representative submitted bundle “A”, consisting of pages 1 to 31.


SURVEY OF THE EVIDENCE:

21. I wish to state from the onset, that not all evidence presented will be set out hereunder. Only a summary of the relevant evidence is contained herein.

THE RESPONDENT’S CASE:

22. The first witness for the Respondent was Dora Masibi, who testified under oath, that she was an employee of the Respondent, employed within corporate services conduct management, with responsibilities of initiating and chairing the disciplinary processes. She got eleven years of service with the Respondent.

23. She is employed as senior educational specialist with eleven (11) years of service.

24. She was appointed to preside over the disciplinary hearing of the Applicant. It was her responsibilities to ensure that the Applicant was served with the charges on time and ensures all his rights are adhered to e.g., the right to be represented at the disciplinary hearing, to call witnesses and cross examined the witnesses of the Respondent and to present his case.

25. After applying her mind, she presented her finding and requested parties to present mitigation and aggravating circumstances before pronouncing on sanction. The Applicant was represented by a recognised trade union, SADTU, and all procedures were followed.

26. The Respondent’s representative and the Applicant’s SADTU representative called their respective witnesses and both parties were given an opportunity to lead, cross examines each other’s respective witnesses.

27. The Applicant was served with charges and the notice to attend disciplinary hearing on time and sufficient time to prepare given to the Applicant. The rights of the Applicant were tabulated on the notice to attend the disciplinary hearing, time, venue and date of the disciplinary hearing stated with clarity. The charge sheet and the notice to attend the disciplinary hearing were served on the Applicant on 19 October 2021, and the disciplinary hearing was held on 04 November 2021.

28. The Applicant and the Respondent were required to submit closing arguments in writing and they submitted aggravating and mitigating circumstances for considerations before sanction was pronounced.

29. The Applicant was charged with the following counts of misconduct:-

a. On 29 June 2021 at your place of work (Tlotlang Thuto Secondary School) you violated the examination rules and regulations by giving your grade 11 learners a memorandum of June examination before the life orientation question paper was written. Your action or omissions thereof impact negatively on curriculum of the school. As such you have contravened section 18(1) of the Employment of Educators Act 76 of 1998.”Which reads that you committed an act of dishonesty”.

b. On 29 June 2021 at your place of work (Tlotlang Thuto Secondary School) you violated the examination rules and regulations by stealing / unlawfully accessed grade 11 life orientation June question paper and revise same with learners before the examination was written. Your action or omission thereof impact negatively on curriculum of the school. As such you have contravened section18 (1) (i) of the employment of educators act 76 of 1998.”Which reads that perform poorly or inadequately for reason other than incapacity.”

c. On 16 August 2021 at you place of work (Tlotlang Thuto Secondary School) you failed to teach learners according to annual teaching plan (ATP) and to prepare before going to class hence you were behind schedule with nine (9) days and giving learners activity from term 1.Your action or omission thereof impact negatively of curriculum of the school.as such you have contravened section 18 (i) of the Employment of Educators Act 76 of 1998,”which read that you failed to carry out a lawful order or routine instruction without just or reasonable cause.

30. The sanction or the outcome of the disciplinary hearing was communicated to the Applicant in writing on 02 December 2021.The Applicant submitted an appeal against the findings and sanction of the disciplinary hearing to the MEC of the Provincial Department of Education on 10 December 2021.The outcome of the appeal was communicated to the Applicant in writing on 21 June 2022 and signed acknowledgement of receipt.

31. On page “R41”, she wrote, “therefore I find Maake not guilty as charged”, and she attributed that to typing error, as she then requested parties to submit aggravation and mitigating factors for consideration in imposing a sanction.

32. The Applicant was found guilty in an internal disciplinary hearing of charge 1 and 2 and not guilty on charge 3.In the main the evidence adduced was that learners were given provincial question papers and answers as class activity on 29 June 2021, a day before midyear examination scheduled on 30 June 2021.

33. She testified that she considered the impact of the conduct of the Applicant, impact on educational systems as well as impact of the readiness of learners to migrate from grade 11 to 12 with necessary knowledge and information on the subject.

34. During cross examination, she failed to respond when proposition was put to her, that the appeal authority did not process the appeal correctly as the Applicant was not called to provide his version.

35. The second witness for the Respondent was Joyce Mabebe, who testify under oath that she is an educator and head of department at Tlotlang Thuto Secondary School, a direct supervisor of the Applicant. One of her core task is monitoring of educators progress on annual teaching plan.

36. She discovered that the Applicant was lagging behind with 9 days or two weeks on life orientation whilst doing monitoring of the Applicant , she was more concerned because the grade 11 were writing the provincial examination, she therefore requested the Applicant to submit recovery plan for two chapters or topics so that learners can cover all topics before the test.

37. She was carrying out monitoring of teachers every two weeks to ensure that they are up to date and complies with the annual teaching plan. The applicant failed to provide her with the recovery plan. They were preparing grade 11 learners for national senior certificate and therefore it was absolutely necessary to adhere to the annual teaching plan, to equip the learners for the examination.

38. On 29 June 2021, she was invigilating and when she goes to the staff room, she saw the applicant with lot of question papers going to grade 11, and because she was concerned about his recovery plan and his failure to share or respond to the recovery plan, went to check if he is implementing the recovery plan given the fact that it was late and they were lagging behind.

39. The applicant was seated whilst all learners were having question papers so she checked if it was previous question papers , much to her shock and dismay, all learners were having memorandum of the mid-year examination scheduled for the following day, 30 June 2021.Memorundum having questions and answers.

40. Memorandum should not be given to learners but previous question papers should be shared for revision, the Applicant gave the memorandum to learners because the annual teaching plan was not followed, therefore he compromised the quality of education, assessment of learners preparedness for examination and the school would not get a fair picture of the learners knowledge because they were given questions and answers for the following day’s examination.

41. She then called two learners to check where did they get the memorandum and they notified her that the memorandum was given to the class by the Applicant, who warned all learners not to bring the memorandum to school the following day (30 June 2021, LO exam date), because should they bring such memorandum, he will be in trouble with school management.

42. She then immediately called the school principal to sensitize her of what was happening at school and to notify her that the following day LO examination was compromised and it will not be fair to allow the learners to write such examination.

43. The principal then advised her to call the provincial subjects advisor and bring to her attention that the school cannot write the same provincial examination paper because at the school such examination was tainted as the learners were given the memorandum. The applicant did not teach the learners but gave those questions and answers and that is cheating.

44. Class activities 12 and 13 were the two topics that the applicant was lacking behind with, so instead of teaching those two topics, gave learners memorandum.

45. The provincial subject advisor then arranged for the school to write a different paper, send a different question paper, the school did not write the same papers as other grade 11 learners from other school.

46. There is a WhatsApp group of LO teachers in the province and the subject advisor sent all LO teachers such question papers and the memorandum to be printed on the date of the examination and the Applicant was part of that WhatsApp group and that’s where he sourced such memorandum.

47. The principal called a meeting upon resumption of school after mid-year recess, and it was her, the principal and the applicant in that meeting , she gave her version and the applicant refused to participate saying he will only talk to them in the presence of SADTU’s representative or SADTU shop-steward

48. Another meeting was convened with the principal, subject advisor, the applicant and the HOD, still the applicant refused to provide answers or input or his version, or he will only talk in the presence of SADTU’s representative, then the principal reported the matter to the district offices and the applicant was charged with misconduct.

49. She was not told by the applicant that he is not feeling well, actually she was hearing that for the first time from learners that the applicant was not feeling well, health-wise. She was acting principal on that day and nobody reported sick.

50. The conduct of the applicant is frowned upon within the educational sector, because it is not only cheating the learners, the school and the province, but the entire country.

51. The third witness for the Respondent was Pulane Sedietso, who testified under oath that in 2021, she was a learner and matriculated last year 2022 and currently no longer a learner.

52. She was in grade 11 during the year 2021 at Tlotla Thuto Secondary School, she knows the applicant well as a teacher at the school during 2020, 2021 until June 2022.He was teaching LO in 2021.

53. On 29 June 2021, the Applicant came to the class and gave us the memorandum paper to write as class work, during such class work, the HOD came into their class and find the teacher seated on a desk in front of the learners. She took two books of the learners, Keletso and Pulane, and left the class.

54. She later called the learners and asked them where did they get the memorandum and they explained that the Applicant gave them the memorandum and pleaded with them, to take such memorandum home and not bring such memorandum the following day, they were advised to revise the memorandum at home, they were also advise not to bring such memorandum to school, as that will reflect badly on the Applicant. They were writing examination the following day, on 30 June 2021,

55. The following day, 30 June 2021, they wrote a different examination paper, different to the memorandum shared with them on 29 June 2021.

56. It was the applicant that distributed the memorandum to the learners.

57. The fourth witness for the Respondent was Tshitannye Magdeline Reamogetse who testify under oath and whose testimony was that, she is an employee of the Respondent as a school principal at Tlotlang Thuto Secondary school where the Applicant was based as a teacher.

58. She knows the Applicant as a teacher at her school and as a teacher that was dismissed because of misconduct of printing and sharing the memorandum with learners on 29 June 2021, before the provincial examination paper could be written on 30 June 2021.

59. She was called and received a telephone call from the HOD, Ms Mabebe, who notified her that the Applicant printed and gave out the memorandum to the grade 11 learners on 29 June 2021.She was not at school and the HOD was acting principal on that day.

60. She advised the HOD to inform the subject advisor about the leakage of LO memorandum and to seek advise on how best to manage the challenges in such a way that the leakages does not affect the learners and ensure that the grade 11 LO learner sit for the examination on 30 June 2021.

61. Indeed the HOD engaged the subject advisor and luckily, there were three different question papers, and the subject advisor sent the other question paper to the school for mid-year examination scheduled on 30 June 2021.The grade 11 LO Learners wrote a different question paper from that of their fellow grade 11 ,from other schools, on 30 June 2021.

62. She was equally informed by the HOD that the Applicant was lagging behind with two topics and failed to submit the recovery plan as required to ensure that the learners were ready and well equipped for the mid-year LO examination. The Applicant failed to adhere to the request for recovery plan.

63. Upon resumption of school, after mid-year school recess, she called the Applicant and the HOD to discuss the leakage of grade 11 LO memorandum. The HOD submitted her version of events but the Applicant refused to discuss the leakage and demanded that he can only discuss the grade 11 LO memorandum leakage if the SADTU union official or shop-steward was present in that meeting. She gave the Applicant the go ahead to invite the SADTU official or shop-steward, and that prompted her to write a report to the district or circuit leadership. (A22 and A23).


64. During their time as colleagues, the principal and the Applicant enjoyed a cordial professional relationship, in fact she went extra mile to protect the Applicant because one grandmother came to school to complain that the teacher was visiting her granddaughter in the evening and that was not good. The grandmother complained that the teacher was harassing a female learner (granddaughter) to have sexual relationship with her and that is contrary to the rules and the Applicant gave the female learner scripts to mark other learner’s examination script.

65. One of the learner reported to the parents and the principal that the Applicant offered him R400,00 to testify in support of his case and implicate Ms Mabebe as the one that brought the memorandum to the grade 11 learners on 29 June 2021.

THE APPLICANT’S CASE:

66. The first witness to testify for the Applicant was Sabatha Gilbert Seebela, who testify under oath that he started knowing the Applicant in 2018 and 2019.The Applicant was a History, English and Geography teacher at school, he was a class teacher during 2022 and was teaching history.

67. The Applicant was teaching Geography and History during the year 2021, and Joyce Mabebe, the HOD was teaching Tswana and the school principal was not teaching him any subject. The Applicant was teaching History and Life Orientation and Geography in 2021.

68. The Applicant came to the class on 29 June 2021 and was not feeling well due to Covid19- vaccination and took a seat in the table. Joyce Mabebe came and give the LO papers to the learners in a class because the Applicant was not feeling well.

69. It was early in the morning when Ms Mabebe came to give the LO Memorandum to the learners because it was LO period.

70. The Applicant went outside with the HOD to discuss the LO memorandum and other stuff. The principal was in her office, he saw the principal because he requested permission to go the bathroom outside the classroom.

71. Ms Mabebe came to the class three times , she came to give the LO memorandum, came to check if the Applicant was teaching, she was peeping through the class to see what was happening and she was not talking to the learners.

72. The applicant was seated in front of the class not feeling well. It is impossible to see outside the classroom because the windows were painted.

73. He completed matric last year 2022 and he is twenty two years of age.

74. During cross examination, he conceded that he did not write a report as requested by the Principal and took him long to remember that the Applicant was teaching him LO, the other reason is that teachers changes subjects from time to time.

75. During cross examination , he testified that he saw Ms Mabebe giving the LO memorandum to the Applicant but the Applicant did not respond, as the result the papers were given to Keketso Diraditsile to distribute amongst students, Ms Mabebe placed the documents on the table when visiting classroom in the afternoon, the documents were question papers and the memorandum.

76. The second witness for the Applicant was Kutlo Enock Modisane, who testify under oath that he is twenty one (21) years of age and completed his matriculated last year 2022.He was in grade 10 in 2021 and the Applicant was teaching him Geography and the Applicant did not teach him during the year 2021.He was taught LO by Ms Masiti.

77. He was given LO memorandum by Keketso Diraditsile, that contains questions and answers, that memorandum was from Ms Mabebe, who came to their class twice on 29 June 2021.

78. The Applicant was seated down and Ms Mabebe gave out instruction that the memorandum be given to the learners. The applicant told the learners that he was not feeling well, health-wise, and the principal does not allow him to go home and sleep, hence sleeping in the classroom.

79. During cross examination, he conceded that he forgot about the LO and that the Applicant was teaching LO because it was quite a long without the Applicant teaching him.

80. They received the question papers and the memorandum, firstly it was question paper and followed by the memorandum.

81. One of the learner, Keletso volunteered to distribute the memorandum to the learners, it was noisy in the classroom as the Applicant was sleeping and not feeling well. She saw the principal who was leaving the school premises around past seven in the morning.

82. The third witness was the Applicant, Motsamai Blondie Maake, who testified under oath that he started employment relations with the Respondent at Tlotlang Thuto Secondary School on 11 February 2019 and his services were terminated on 21 June 2022, consequent to internal disciplinary process and appeal processes.

83. On 28 June 2021, he went for covid-19 vaccination. On 29 June 2021, he reported to work with headache, abdominal pain and feeling dizzy.

84. The school principal was not at work and the person in charge of the school was Ms Mabebe, he reported to Ms Mabebe that he is experiencing abdominal pains and headache and Ms Mabebe was cool and feeling pity for the Applicant. MS Mabebe then called the principal, who was not at school on 29 June 2021, to request that the Applicant be excused from work given his medical conditions after covid19 vaccinations.

85. The principal refused to allow Ms Mabebe to release the applicant and then the HOD instructed the applicant to go to his class to sit and relax and to mitigate against learners making noise in class.

86. He down loaded previous question papers to do revision with learners and prepare them for 30 June 2021, LOA examination. He rested facing the learners and some learners ask him, why can’t he go home to sleep?

87. Ms Mabebe came to his grade 11 class with question papers to write class activities and one of the learner, Keletso distributed the papers to the learners.

88. Learners were surprised, and Ms Mabebe went outside and after few minutes came back and started going through desk in his class. She then took papers from learners and requested two learners to come outside and question them about the memorandum in the staff room and she was very emotional.

89. He witness three or two learners interrogated at the staff room and Ms De Wee was recording the learner’s conversation.

90. On 30 June 2021 and 01 July 2021, the covid-19 symptoms were worse and he went to Bonabona Clinic and the school was about to go on midyear recess.

91. During mid-year school recess, he heard some news that he gave out school learners some memorandum for the examination that was scheduled for 30 June 2021.

92. When school resumed after midyear recess, he was called into the principal’s office, it was the Applicant and the HOD Ms Mabebe to discuss the leaking of the memorandum of the LO on 29 June 2021, before the exam scheduled on 30 June 2021.It was in that meeting that the Applicant requested the principal to call his SADTU’s representative or shop steward.

93. There was another meeting between the Principal, Ms Mabebe the HOD and LO subject specialist and he pleaded with them to call the union representative, SADTU, to be at school for the meeting and that was not done. The principal told him that he is stubborn and he will be dismissed from work because he does not want to talk to school management and provide his version with regards to the memorandum that was leaked and given to students whilst he was in class and giving learner class activity on memorandum.

94. The principal did not want him at that school, in actual fact told him that, “I don’t want you at my school”. He was not surprised when he was given the charge sheet and the notice to attend the disciplinary hearing at Ganyesa.

95. The Principal went to the grade 11 class and requested learners to write statements that it is the Applicant, Mr Maake, that gave them memorandum and some of the learners complied whilst other learners reported the matter with him and they refused to write those statement, saying the principal was instructing them to write bad statement against him.

96. Six (6) learners were ready and willing to be his witnesses but when they arrive at the disciplinary hearing, he was told by his SADTU union representative that only one learner will be allowed to testify but strange enough, the principal , the HOD, came with two learners, whilst only one learner was allowed to be his witness.

97. Six (6) of the learners that testified in support of the Applicant were deliberately failed and had to repeat grade 11 merely because they testified in support of the Applicant. Those learners were told by the principal that they were failed because they were called as witnesses of the Applicant.

98. The six (6) learners willing and were ready to testify in support of the Applicant at the internal disciplinary hearing were Tumisho Marabutse, Tlotlomereyabona,Gosego Masiane,Tlhalefo Shashape and does not remember the other two learners. The two ex-learners who testified at the arbitration proceedings were Sabatha Gilbert Sebeela and Kutlo Enock Modisane.

99. Learners were threatened not to testify in support of the Applicant by the principal and their parents were called and threatened that their children should not testify in support of the Applicant.

100. Pulane Sedietso was a slow learner or a learner with serious learning disabilities and her brother as well is suffering from serious learning deficiencies and therefore her whole evidence was solely what she was told what her testimony should be and was easily influenced.

101. During March 2021, the principal requested him to borrow her R5000, 00, promising to pay back the money before July 2021, she promised him that her husband will get money and she will repay him.

102. He was due to pay lobola to his partner around June 2021, and requested the principal to repay the R5000, 00 but was astonished when the principal responded that she cannot repay the money because the applicant was on contract of employment, and he was told that temporary educators were paying the principal R500, 00 in order for their employment contract to be renewed or to be employed permanently as educators. He persisted and his R5000,00 was paid back or transferred to his bank account on 27 July 2021.She complained though that other teachers are paying and why are not paying. And the principal started changing her attitudes towards him, from warm and receptive to hostile and confrontational.

103. The principal used to praise him at assembly and staff meeting, almost every day but that stop immediately after demanding his repayment of R5000, 00 and after it was transferred back into his bank account.

104. The principal gave her personal vehicle (bakkie) to the Applicant to use for the purposes of his lobola negotiation and ceremony. The principal discouraged him about his wife, saying the local ladies were not good and in particular his wife was not good for him.

105. The principal requested him that they should travel together and use his car one week and the other week use her car, alternate in use cars from home to work and work to home.

106. On 01 September 2021, it was spring day, they were at playing grounds with other colleagues, foreign national educator, when all of a sudden the principal requested him to come and be closer to her, so they could only be two of them, she then started sharing her marital challenges and frustration with him, amongst others that her husband is working far at Kurumane. When he is around, he spend time at the tavern until three o’clock in the morning, come home intoxicated, his friends are his priority over his family and in particular his marriage, she is even contemplating filing a divorce but need a person like him with backbone to be there for her, he was told that he is a man with good quality that the principal would need, and she needed assurances before filling for divorce.

107. The Applicant told her that, he got two children with his wife and they were experiencing marital challenges and that he needed time off to fetch his parents to assist him to sort out those marital challenges, which excited the principal who responded by saying, “you see I told you”.

108. Whilst his wife left him to stay with her parents, the principal will call him in the evening to drive her and or with her friend to Ganyesa for some entertainment, and he decided to switch off his cellphone to avoid the principal that evening and that resulted in the principal getting upset and scolded him that he stood her up and she was embarrassed.

109. Temporary teachers in the district with their principals were invited to meet the district manager at Ganyesa district offices but the principal excluded him. The Principal assured him that she will submit his credentials to the district. His wife who was also a temporary teacher alerted him to that meeting with the district, so he decided to go to that meeting uninvited and the principal was surprised that he was also there. They queue to submit their credential and the principal gave him his documents but were not certified correctly. All temporary teachers were present with their principals. All temporary teachers present, who are qualified, were to be converted to permanent employees.

110. There is a SADTU WhatsApp group circulating with all temporary teachers that were converted into permanent employees, his name was on that SADTU WhatsApp group. The principal notified all temporary teachers that they must not report back to school when school terms resumes the following year. He reported for duty and notified the Principal that he saw his name on SADTU WhatsApp group and indeed he was converted to permanent educator on 03 December 2020.The principal was not happy that he was not converted into permanent teacher.

111. During the year 2022, he was over loaded with subjects and periods and that’s more work. He was assigned 54 periods per month whilst other teacher’s average between 27 and 34 periods per month. He was equally restricted to use photocopy machines and he reported the mistreatment to SADTU. He was banned from using the photocopier and the printer and those work instruments were located in the principal’s office.

112. School gates were locked with chains as the principal forced learner’s to come to school even if they tested covid-19 positive.

113. The 9 days or two (2) weeks lagging behind could be attributed to two weeks community strike, this was not factored by the HOD and his relationship with the HOD is very good except that she is scared of the principal who was clear that she does not need him at her school. Therefore Ms Mabebe, was used by the principal to destroy his career.

114. The principal even gave him a day off to look for a school, where he can go and work. The school, Maiketso School, was happy to accommodate him, but only requested release letter from the principal, but she refused to provide him with that release letter.

115. Education Assistant were told not to assist the Applicant, but can assist other teachers, and he reported that to SADTU.

116. The prayer sought by the Applicant is retrospective reinstatement.

ANALYSIS OF EVIDENCE AND ARGUMENTS:

117. In considering the merits of this dispute, I had regard to the provisions of the LRA, the ELRC Dispute Resolution Procedure, and the Code of Good Practice: Dismissal (the Code) of the LRA and relevant case law.

118. Everyone has the right to a fair labour practices. This cardinal principle is enshrined in section 23 of the Constitution of the Republic of South Africa Act 108 of 1996. This right is well entrenched by section 185 of the LRA, which provide the right not to be unfairly dismissed or subjected to unfair labour practices.

119. In the case of Sidumo and another v Rustenburg Platinum Mines (Pty) Ltd and others (2007) 28 ILJ 2405 (CC) 2007) 12 BLLR 1907 (CC), the court held that, “one of the primary objects of the LRA is to give effect to and to regulate the fundamental rights conferred by section 23 of the Constitution, including the right to fair labour practices enshrined in section 23(1).

120. Section 188 of the LRA provides that an employee’s dismissal will be unfair if the employer fails to prove that the dismissal was for a fair reason and that it was effected in accordance with a fair procedure.

121. In terms of section 192 of the LRA, the employee must prove that he was dismissed and the employer then bears the onus to prove that the dismissal was fair.

122. The dismissal of the Applicant was not in dispute; both the Respondent and the Applicant confirmed that the Applicant was dismissed.

123. The Respondent’s witnesses, Ms Mabebe and Ms Tshitannyane corroborated each other on the aspect of requesting the Applicant to submit his version of events of 29 June 2021, with regards to LO memorandum. The Applicant himself, in his evidence in chief also confirmed that he refused to discuss the leakage of LO memorandum with the HOD and the Principal without the SADTU union representative, despite the fact that the Principal and the HOD conceded that the SADTU union representative can be invited. It is the responsibility of the Applicant to notify and invite his union representative and not the Principal to ensure attendance of the SADTU representative.

124. It is quite therefore disingenuous, smack of arrogance of extraordinary nature and lack of co-operation of the Applicant to demand that the principal should invite his union representative, who was to represent him to discuss the leakage of LO memorundum. Therefore his refusal to provide his version was misplaced and misguided. It is however, his constitutionally entrenched right to be represented by any union of his choice, but it was his responsibility to brief and ensure attendance of that union representative.

125. Therefore the Respondent’s witnesses’ testimony was credible, highly probably and was confirmed by the Applicant whilst the Applicant’s reluctance to co-operate was highly questionable and inconsistent with expectation of the employer and the employee relationship.

126. The witnesses, Sabatha Gilbert Seebela and Kutlo Enock Modisane, testimonies were questionably and suspicious. Sabatha Gilbert Seebela testified that the Applicant was teaching them from 2018 whilst the Applicant, testified that he joined Tlotla Thuto Secondary School in February 2019.

127. The Applicant was teaching them English, History and Geography and only after several attempts, conceded that, he was also teaching LO. Kutlo Enock Modisane stated that the Applicant was not his LO teacher in 2021 and he was in grade 10 not grade11, Ms Masiti was LO teacher but later changed that it was the Applicant. Their testimony was quite questionable and should be rejected because it was riddled with lot of inconsistencies, lies and was misleading.

128. Sabatha Gilbert Seebela was equally economical with the truth with regards to the fact that the Principal was in her office, he saw her, because he requested permission to go to the bathroom and saw the Principal. The Principal testified that she was not at school, the HOD was acting school principal and that version was supported by the Applicant in his evidence in chief.

129. Sabatha testified that Ms Mabebe distributed the memorandum to learners, placed the memorandum on the desk in front of the Applicant, and gave the memorandum to the Applicant, one of the learners Keletso volunteer to distribute the memorandum to all learners. The Applicant and the HOD went outside and discussed the memorandum but was not privy to the discussions. The applicant was sick as the result of covid-19 vaccinations. How could one witness contradict himself so much, and still place value on his testimony? Certainly he was not credible and honest and therefore his evidence not probable.

130. Equally Enock testified that Ms Mabebe gave instruction that the learners be given memorandum and Keletso distributed such memorundum. His testimony was riddle with lot of inconsistencies and highly improbable. He was in grade 10 in 2021, Ms Masiti was LO teacher and many contradictory statement.

131. The Applicant submitted that he reported that he was not well due to covid-19 vaccination and reported that to the HOD who then requested the principal to release the Applicant but the HOD rebutted such version and indicated that she was not aware of the health challenges of the Applicant and the HOD was a good person and was overruled by the principal.

132. It was testimony of the Principal and the HOD that that the only discussion was the leakage of the LO memorundum. However learners, who are witnesses of the Applicant testified that the Applicant was sick due to covid-19.It is therefore highly unlikely that the Applicant reported his sickness to the HOD.

133. The Applicant, despite legally represented, failed to challenge the principal’s version or denied her version with regards to the complain of the grandmother of one of the learner, that happened to the granddaughter of the grandmother that complained that the Applicant was seeking sexual relationship with the learner and was using such female learner to mark examination scripts.

134. The Applicants version of R5000,00 loan to the principal, soliciting R5000,00 bribery by the principal, marital challenges of the principal, the principal seeking sexual relationship with the Applicant through innuendos, the temporary teachers meeting with the district manager to convert them to permanent role, SADTU WhatsApp conversion of temporary teachers to permanent teacher was never canvassed with the principal whilst testifying to get her response. There was no documentary proof to substantiate those allegations. This seems highly unlikely and after thoughts by the Applicant to paint the principal as the colleague who was having an axe to grind.

135. On the contrary, the evidence of Pulane corroborate the Applicant’s two witness with regards to the fact that the Applicant told them that he was not feeling well and permission was not granted to go home to sleep and recuperate. It is highly probable that the Applicant notified the learners that he was not well and did not notified the HOD.

136. Pulane, who was painted as a learner with learning deficiencies, was firm, never contradicted herself despite robust cross examination, her recollection of the event was clear and consistent.

137. Therefore the Respondents witnesses were highly credible, their testimony corroborated by even the Applicant and some of his witnesses testimony and should be accepted. The Applicant and his witnesses on the contrary provided inconsistent and highly improbable evidence.

138. In Tseane v Get Ahead Foundation (1995) 16 ILJ 202 (IC), the court held that an employee owes an employer a duty to always promote its business interests and act in its interest. A breach of this duty by an employee entitles an employer to dismiss him.

139. The conduct of the Applicant in failing to adhere to the annual teaching plan, resulting in learners lacking behind with two topics, failing to provide the HOD with recovery plan and giving memorandum to learners to prepare for the provincial examination the following day was harming learners, the school and the entire educational system. The conduct of the Applicant was harmful and not advancing the interest of education. The Respondent was within its right to subject the Applicant to a disciplinary process, credible evidence adduced point to commission of misconduct, which borders on dishonesty and undermined the educational system.

140. In the Publication, Principles of Practice Labour Law, issue 7, (2005) paragraph 245, it is held that, “When rendering services his services, the employee must ensure that his services are executed in good faith and that they in no destruct from the relationship of trust”.

141. The Applicant demonstrated an abrasive attitude and a lack of remorse during the arbitration proceedings. He refused to acknowledge the wrongfulness of his conduct and instead blamed the principal of waging a campaign of hate, witch-hunt, attempted bribery, victimization and revenge for demanding repayment of R5000, 00, interference in his marital affairs and desperately seeking romantic link with him. There was no slightest remorse on the Applicant and therefore it will be bad to expose learners to this kind of conduct as displayed by the Applicant.

142. In Department of Labour v GPSSBC (2010) 231 ILJ 1313 (LAC), the Labour Appeal Court confirmed the principle that a sanction aimed at correction and rehabilitation is of no purpose when an employee refuses to acknowledge the wrongfulness of his / her conduct.

143. In terms of item 4 (1) of the Code of Good Practice on Dismissal (the Code), the employer should notify the employee of the allegations using a form and a language that the employee can reasonable understand, and the employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken and preferably furnish the employee with written notification of that decision.

144. The Applicant was charged and served with charge sheet, served with notice to attended a disciplinary meeting, he was represented by SADTU representative at the disciplinary meeting, he was given a verdict, allowed mitigation and appeal, he was notified of the sanction and outcome of the appeal and advised to refer the dispute to the ELRC.

145. Therefore the dismissal of the Applicant did complied with item 4(1) of the Code of Good Practice on Dismissal. The dismissal was procedurally fair.

146. Equally, in terms of item 7 of the Code of Good Practice on Dismissal (the Code), the following must be consider in determining the fairness of the dismissal, whether the employee contravened the rule, if the rule was valid or reasonable, if the employee was aware of the rule or is reasonable expected to be aware of the rule, the rule is consistently applied by the employer and if dismissal is the appropriate sanction for breached of such a rule.

147. In Woolworths (Pty) Ltd v SACCAWU and others (JA 56/2016) (2017) ZALAC 54, the court laid down steps for an inquiry into a breach of a rule and held that in cases of a breach, the Commissioner must consider, whether there was a rule breached, the nature and importance of the rule breached, whether the employee had knowledge of the rule or was expected to have such knowledge, whether the rule had been consistently applied and whether dismissal was an appropriate sanction.

148. The Applicant despite denying the charges, overwhelming, credible evidence pointed to the commission of the misconducts by the Applicant.

149. This misconducts are of a serious nature and warrants the Respondent losing trust and confidence in the Applicant, more so that the Applicant was employed in a position of trust to build capacity in the educational sector. The Applicant by giving memorandum to learners, telling learners not to bring the memorandum to school the following day, telling learners that the principal does not allow him to go home, would inevitable created unnecessary tension and hostility towards the principal and the HOD.


150. The Respondent has discharged the onus to prove the existence of good reasons for the dismissal of the Applicant and therefore cannot be faulted on substantive fairness. The conduct of the Applicant was costly in terms of national capacity building framework, undermined the educational sector and deceitful.

151. Therefore the Respondent cannot be faulted for dismissal on substantive fairness and procedural unfairness.

RELIEF SOUGHT:
152. In terms of section 193(2) of the Labour Relations Act, the arbitrator must reinstate the employee unless:-
1. The employee does not wish to be reinstated or re-employed
2. The circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable
3. It is not reasonably practicable for the employer to reinstate or re-employ

153. The prayer sought by the Applicant was retrospective reinstatement. The Applicant is not entitled to any reinstatement as relief sought for the alleged unfair dismissal. The relationship between the Respondent and the Applicant is beyond repair, based on the totality of evidence presented.
Award

In the premises I make the following award

154. The Applicant, Motsamai Blondie Maake’s, dismissal by the Respondent, Department of Education: North West Provincial Government, was procedurally and substantively fair.

155. The Application is dismissed.

156. There is no order as to costs.

Thus, done and signed at Pretoria, dated 28 February 2023.

Signature:

ELRC: Panelist: Ntjatja Klaas Aphane