ELRC473-22/23EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case number: ELRC473-22/23EC

In the matter between

PSA obo Sengoatsi, Khotso Applicant

And

Education Department of Eastern Cape Respondent

Appearances: For the Applicant: Mr. Themba Rataza (PSA)
For the Respondent: Mr. Tsui Liphaphang
Arbitrator: Thobela Ncetezo
Heard: 18 January, 15-16 March, 3-4 May 2023
Delivered: 6 June 2023
SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2(b) – Unfair suspension or disciplinary action. The Applicant was charged for misconduct in that he allowed an educator who did not qualify for the post to assume duties without a letter of appointment and assumption of duty. He was demoted to Subject Advisor, but he appealed against this decision and the sanction was reduced to a month’s suspension without pay, a written warning and counselling. The Applicant challenged the suspension without pay.

ARBITRATION AWARD

Details of hearing and representation
1. The Applicant, Mr. Khotso Sengoatsi, was represented by PSA member, Mr. Themba Rataza. Mr. Tsui Liphaphang who is employed as Assistant Director: Labour Relations represented the Respondent, Education Department of Eastern Cape.

2. The Applicant submitted a bundle of documents, which was accepted by the Respondent. He testified and introduced four witnesses. The Respondent also introduced four witnesses. All witnesses testified under oath and the proceedings which were digitally recorded were conducted in English.

3. The parties requested to submit closing arguments in writing for consideration, the last which were received on 15 May 2023.

Issue to be decided

4. I am required to decide whether the conduct of the Respondent constitutes an unfair labour practice in terms of Section 186(2)(b) of the Labour Relations Act 66 of 1995, as amended (the Act).

Background to the dispute

5. The Applicant submitted that the disciplinary action of suspension without pay for one month was an unfair labour practice. The following charges were instituted against the Applicant.
5.1 He allowed a certain Mr. Postma to assume duties at Simphiwe Ketwa Senior Secondary School without the authority of the Respondent.
5.2 He failed to alert the Respondent about the resignation of a Mrs. Ketwa while a disciplinary process against her was being finalised; and he accepted her resignation although he knew that she was charged.
5.3 He failed to exercise the duty of utmost care to ensure reasonable protection of the assets and records of the public entity in that the Respondent ended up paying about R170 000.00 to Imma Postma due to his omission.

6. The Applicant was found guilty of the first and third charges and demoted. He appealed and the sanction was reduced to a suspension for a month without pay.
7. The Applicant further challenged procedural fairness of his disciplinary enquiry and submitted that the chairman conducted the proceedings irregularly in that she was close to the Respondent’s representative, Ms. Zukiswa Ngcwange, in that she had dinner with her and that there was no agreement to sanction in terms of clause 8(2) of Schedule 2 of the Employment of Educators Act. He further submitted that the chairman ignored crucial evidence that was led by the Applicant and therefore reached an incorrect decision.

8. The Respondent submitted that the Applicant was not given any instruction by the District Director to appoint Mr. Postma. It was further submitted that the Applicant did not avail himself to give his side of the story and that the Respondent incurred loss because his failure to follow the prescripts and employed a person who did not qualify.

9. In this matter the Applicant requested the payment of his salary which was not paid to him subsequent to his suspension without pay.

Applicant’s case

10. The testimony of the Applicant, Mr. Khotso Sengoatsi, that his duties with the Respondent include monitoring, providing support, school development and training. He further testified that the allegations of misconduct do not have a date and are not in compliance with the Respondent’s prescripts. He could not understand the charge three which is about the protection of Respondent’s assets and records. He further testified that the Respondent did not investigate about the allegations against him before a decision to charge him was made, a conduct which he viewed as inconsistent.

11. On the charge of allowing Mr. Postma to assume duties, he testified that the duty to employ Post Level 1 teachers is given to the District Director and informing people who do not qualify for a post fall under Human Resources Department. He explained that the recruitment of Post Level 1 is placed in a bulletin followed by applicants’ interviews and then appointments. An educator would then assume duties and the letter of appointment would follow afterwards. At Simphiwe Ketwa SSS, the school did not have an Afrikaans teacher for quite some time in 2017 and learners were not taught for two terms. This was reported to the portfolio committee by the school principal when they visited the school. The members of the SGB were also present during this visit. The District Director told them to recruit a teacher who will be employed till the end of the year. A week thereafter a teacher was brought in and told by the school principal to resume his duties, which he did. The Applicant received Mr. Postma’s qualification documents from the school principal and he submitted them to the HR Department. Mr. Postma possesses a Bachelor of Arts degree and Post Graduate Certificate in Education (PGCE). Mr. Postma was not paid, and they were told that he did not qualify for the post for a post that was budgeted for. Mr. Postma referred his dispute to the ELRC, and the Applicant was subpoenaed to testify against the Respondent. A teacher who is employed to the same post does not have Afrikaans. He stated that if a person does not have a subject at level one or two, they would not qualify as they do not meet the minimum requirements.

12. The procedural aspect that the Applicant challenged was that the chairman of the disciplinary enquiry had lunch at Wimpy with Mesdames Ngcwange, Sikiti and Mr Nkomane. Miss Ngcwange was representing the Respondent and Miss. Sikiti and Mr. Nkomane were witnesses in the disciplinary enquiry of the Applicant. He was charged after four and a half years and therefore his charges were not in compliance with the Standard Operating Procedure (SOP).

13. The Applicant was found guilty of charge one and three and the sanction imposed upon him was a warning, counselling, and demotion to Subject Advisor: He appealed to the MEC, and the sanction was reduced to suspension without pay for a month.

14. Under cross-examination the Applicant testified that he has been recruiting educators for the past eight years and in the performance of his duties he is guided by the Respondent’s prescripts. He further testified that when he received the CV of Mr. Postma he was satisfied that the latter qualified for the job but did not know whether he did Afrikaans at university. He submitted Mr. Postma’s documents to Mrs. Masiza who is working at HR Department. It was his CV, academic transcripts, SACE certificate and bank form. At the time that they recruited Mr. Postma it was difficult to find an Afrikaans teacher in the whole of Eastern Cape. He did not know that Mr. Postma did not qualify for the post and when the HR Department told him, he informed the District Director, Mr Mabece. He also told him how difficult it was to find an Afrikaans teacher. Mr. Mabece said that they will employ him under Learning Attainment Intervention System budget. Out of the eight months that Mr. Postma was in the post, he was only paid for four months. The Applicant could not understand as he recruited a qualified teacher. Mr. Postma occupied the post on 1 August 2017.

15. The Applicant denied that he was unavailable when they were looking for him, that he did not answer calls from the District Director or had met Miss. Sikiti during the period of COVID-19. He said that he only met Miss. Sikiti at Mr. Postma’s arbitration proceedings. He also stated that he was not aware of Circular 1/2017. He stated that Mr. Postma was recruited by the District Director as it was the latter who told him and members of SGB to recruit an educator.

16. He further testified that when he saw presiding officer of his disciplinary hearing having lunch with the Respondent’s representative and witnesses but could not hear what they were conversing about. He assumed that there was going to be biasness. He believes that the prescripts prohibit a presiding officer to sit with witnesses. He admitted that he was allowed to submit mitigating factors.

17. The first witness, Mr. Postma testified that he was employed as an Educator at Simphiwe Ketwa from 2 August 2017 to January 2018. He taught Life Orientation and Afrikaans. He got to know about this position when he went to a meeting where he was told that the school was looking for an Afrikaans teacher. He then submitted his CV and academic qualifications to the school principal before the holiday break of term two. The witness possesses a Bachelor of Arts (BA) and Post Graduate Certificate in Education (PGCE) the syllabus of which included Life Orientation and Technology. In his BA He majored in Greek, German, Latin and Arabic but does not have Afrikaans at his second-year level of university studies. When he was recruited, he was not aware of the requirements for the post.

18. The second witness, Mr. Elliot William, testified that he is the SGB chairperson at Simphiwe Ketwa SSS since 2015. When a portfolio committee, which constituted of politicians and the District Director, Mr Magadu, visited the school they informed them that they have not had an Afrikaans teacher for eight months. After the politicians had left the District Director gave a verbal instruction to the SGB, Applicant and Acting Principal to find an Afrikaans teacher. Another teacher, Mr. Ordendaal, who was the HoD at the time, recommended Mr. Postma who was then introduced to the school and SGB. Mr. Postma was then not paid but on enquiry he was told that he did not qualify. If he knew this, he would have called and told the SGB and Acting Principal. The District Director then denied that he gave them an instruction to find an Afrikaans teacher. He does not know whether the incumbent who replaced Mr. Postma has Afrikaans. He explained that when there is a vacant post the SGB is workshopped by the Applicant before the interviews.

19. The third witness, Mr. Vuyo Gladstone Nongqo, testified that he is a Deputy Principal at Simphiwe Ketwa SSS and was Acting Principal when the portfolio committee visited the school. He confirmed that when the portfolio committee visited their school, they were informed that the school does not have an Afrikaans teacher. The credentials of Mr. Postma were given to him, and he saw that he also has a SACE certificate. He was aware that the teacher must have at least passed a subject at the second-year level of their qualification at university, but parents were putting pressure on them to find an Afrikaans teacher. The District Director was also aware of Mr. Postma’s employment but he denied it. He reiterated the testimony of the second witness that it was difficult to find an Afrikaans and they had looked everywhere to find one. Even the teacher who has now replaced Mr. Postma does not have Afrikaans. The Applicant was one of the people who were instructed to recruit an Afrikaans teacher.

Survey of evidence and arguments
Respondent’s case

20. The first witness, Miss. Thembeka Gungutha, testified that she is employed by the Respondent as Chief Education Specialist: Employee Relations and presided over in the disciplinary enquiry of the Applicant. She found that the appointment of Mr. Postma was irregular as it was outside the Respondent’s prescripts and educators cannot assume duties without an appointment letter. She also found the Applicant unfit to be a circuit manager because at no stage can a person in that position not have knowledge of a circular which is discussed in meetings and sent to WhatsApp groups. Circuit managers train the SGB on processes that have to be followed. She also considered that a person who is employed in a post must fit its profile with relevant qualifications and before they can assume duties all the processes must have been followed.

21. She further testified that the principal and circuit manager must verify that the documents are correct before submitting them. The latter was being taken to account for his actions as consequent management.

22. On the issue of being close to the employer during the period of the disciplinary proceedings, the witness testified that the people that the Applicant is referring to are her colleagues who found her seated at a restaurant and joined her, but they were not discussing the case.

23. The second witness, Miss Patience Thandeka Dashe, testified that she is employed as Assistant Director: Human Resources. She explained that the SGB is trained in preparation for interviews and appointment of educators through the guidance of the Circuit Manager and school principal. The school submits the CV and academic qualifications of the person they want to appoint through the EDO.

24. She further testified that the CV of Mr. Postma was taken to her office by a former deputy principal, Mr Nongqo and on checking it they established that he did not qualify to be an Afrikaans teacher. The school was informed of this. To assume duties an official must have an appointment letter, failing which the appointment will be irregular and this was stated in a memorandum that was issued in 2016 and the circuit managers. are aware of this document, which they can also make available to the school principals. The SGB was trained by the Applicant, he conducted interviews in his circuit and circulars are just reminders to principals not to appoint educators without appointment letters, an issue which is also addressed by the PAM document. When Mr. Postma, whose appointment caused an irregular expenditure, was told that he did not qualify for the post, he declared a dispute against the Respondent, and he was awarded compensation of R170 000.00, in compliance with an arbitration award.

25. She further testified that where there is an issue about an appointment, they communicate such to the school in writing or telephonically. If a person does not qualify, his or her information would not be captured into the system. Thereafter they expect the school to recruit a person who qualifies for the post.

26. The third witness, Miss. Nokulunga Sikiti, testified that she is employed as an Assistant Director: Labour Relations. Her testimony was that when Mr. Postma declared a dispute against the Respondent, the Applicant did not avail himself nor co-operate to assist her in preparation for the dispute which was before the ELRC. She wanted to meet him and discuss the case before the date of conciliation for Mr. Postma’s case. She tried to reason with the Applicant to assist her with information, but he did not give her any documents or provide an explanation for not sending the required information, which was an attendance register, assumption of duty, and appointment letter. These documents were not in the district office or HR office. The only document that she received was an arbitration award in favour of Mr. Postma. This conduct was regarded as insubordination by the Respondent, and the Applicant was consequently charged in January 2022 because he had not been co-operating from 2020-2021.

27. She further testified that the Applicant should have verified Mr. Postma’s documents before submitting them to the HR office for processing. She reiterated the second witness’s testimony that the compensation that was paid to Mr. Postma who was to resume duties without an appointment letter, was an irregular expenditure. The Applicant communicated to the school that Mr. Postma can resume duties.

28. She stated that investigation is only conducted only when they have to gather facts but if the facts are clear there would not be a need to investigate but charge an employee accordingly.

29. The fourth witness, Mr. Victor Nkosabantu Mabece, testified that at the time that Mr. Postma who was appointed by his predecessor Mr Magadu, and assumed duties at Simphiwe Ketwa SSS, he was a District Manager in 2018 at Joe Gqabi and the Applicant was a Circuit Manager.

30. He further testified that Miss. Sikiti who was representing the Respondent in Mr. Postma’s matter before the ELRC did not have sufficient information to defend the Respondent’s case because the Applicant was not fully co-operative. The witness had to request the documents himself from the school principal in preparation for Mr. Postma’s case. He could not issue a consequent management to the Applicant as he was not at Joe Gqabi District when Mr. Postma was appointed. He also testified that the Respondent incurred financial loss as a result of the Applicant’s actions. He further testified that the role of the EDO is only to find out when is an educator going to be appointed, conduct trainings the appointments and interviews. He stated that the entry point starts with the school principal and the paper trail starts with the EDO who must then submit it to the HR Department to issue an appointment letter. He further testified that if an appointment is made, it will be signed by a District Director.

Closing arguments by the Applicant

31. The Applicant argued that the Respondent failed to produce evidence that the Applicant was aware of the circular at the time of appointment of Mr. Postma and such confirms bias on the part of the chairperson of the hearing to find the applicant guilty without concrete evidence that the applicant was aware of the circular. It was further argued that the Respondent failed to prove that the expenditure incurred was irregular as per the provisions of paragraph 3 Chapter 3 of the National Treasury Irregular Expenditure Framework. All the witnesses could not dispute that for the expenditure to be declared irregular it must comply with the above National Policy Framework.

Closing arguments by the Respondent

32. The Respondent argued that the Applicant does not have a case based on the charges levelled against him, instead the department was too lenient in giving a sanction of one month as against R170 000 and damage to the learners’ constitutional rights violated to poor learners by giving them an inferior education from an unqualified educator, who is also deaf. This is our submission in response. It was further argued that the applicant was a Circuit Manager from 2015 to date, has been training principals and SGB’s but to date is not aware of the Department prescripts on recruitment and appointments- meaning the Presiding Officer did not make an error by demoting him, he is a liability to the Department and not an asset if the Department of Education ended up losing R170 000 because of the unqualified educator that he employed to poison the learners. It was further argued that the Applicant did not show any remorse from the disciplinary hearing to the arbitration and clearly shows that he can’t change his behaviour of undermining his supervisors. He was not on leave but was paid for the day he did not render any services without taking a leave.

Analysis of evidence and arguments

33. The dispute before me was referred in terms of Section 186(2)(b) of the Labour Relations Act 66 of 1995, as amended. In disputes of unfair labour practice, the principle of “he who alleges must prove” is applicable. The burden of proof is therefore on the Applicant to prove that the conduct of the Respondent is an unfair labour practice in terms of the above section, which provides that:
“Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving…unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee.”

Substantive fairness
34. The applicant was charged and found guilty of allowing an educator who did not qualify for the post to resume duties without a letter of appointment and assumption of duty and of failing to exercise the duty of utmost care to ensure that reasonable protection of the assets and records of the public in that the Respondent ended up paying R170 000.00 to Imma Postma due to his commission.

35. With regards to charge one, even though the Applicant denied that he was aware of Circular 1/2017: Special Staffing Arrangements: Appointment of Temporary Educators dated 18 January 2017 (Applicant’s Bundle Page 54), it was addressed to Chief Directors, District Directors, Educational Development Officers, Principals, and provincial secretaries of labour unions. Notwithstanding his testimony that he was not aware of this circular, he admitted that he was aware of the requirement that to qualify to teach a subject, an educator must have done the subject at their second-year level of their university studies. He was also aware that Mr. Postma did not have Afrikaans as he testified that he received the required documents and submitted them to the HR Department. The Respondent has established inherent requirement for the appointment of educators, which I believe should be complied with to avoid any anarchy and/or inconsistency and not compromise the quality of education.

36. The Applicant did not only submit Mr. Postma’s academic documents to the HR Department, but he also enquired about his salary when the Respondent stopped paying him. This proves that he allowed Mr. Postma to resume duties even though he did not qualify in terms of the requirements for the post. It is also evident that the Applicant was aware Mr. Postma assumed duties at Simphiwe Ketwa without an appointment letter and assumption of duty. However, the testimony of Respondent proved that the Applicant was not the only one who was involved in the employment of Mr. Postma. The former District Director and the school principal were also aware of Mr. Postma’s qualification or they would not have submitted his academic certificates and transcripts but there was no disciplinary action taken against them. In eThekwini Municipality v Hadebe and others [2016] 8 BLLR 745 (LAC) the Court confirmed that in determining the fairness, the question is whether other Employees who previously engaged. In similar misconduct were treated in the same way. So, unless the Employer can rationally justify treating one Employee differently, it must act consistently.

37. In Cape Town City Council v Masitho & others (2000) 21 ILJ 1957 (LAC) it was held that fairness requires that disciplinary sanctions must be imposed consistently on delinquent employees.

Procedural fairness

38. The witness who presided over the disciplinary enquiry of the Applicant admitted that the Respondent’s witnesses and representative and who are her colleagues joined her while she was at Wimpy, but they were not conversing about the Applicant’s case. I believe that having an interaction with only one side of the party in the absence of the other and while the disciplinary proceedings was still in progress created a reasonable apprehension of bias and a perception that the presiding officer is conflicted in that her decision would be influenced by the other party. In Ramchabi v Bureau Veritas (2014) 35 ILJ 2900 (CCMA) the Commissioner held that where the chairperson of the disciplinary hearing engaged in conversation with the initiator and witnesses before and after the hearing, it would be reasonable for the Employee to perceive bias.

39. The Applicant further testified that the Respondent did not investigate prior to a decision to hold a disciplinary enquiry. The testimony of the Respondent’s witnesses on this aspect was that investigation is only conducted only when they have to gather facts but if the facts are clear there would not be a need to investigate but charge an employee accordingly.

40. With regards to the Applicant being charged in 2022 when Respondent became aware in 2018 of the issue in dispute, I accept the testimony of the Respondent as its witnesses were consistent in their testimony that the Applicant did not avail himself and the District Director had to intervene and contact the former himself.

41. It is my considered view that the Respondent had valid grounds for imposing a suspension without pay upon the Applicant. However, in consideration of Ramchabi (supra), the procedure was, in my view, flawed as a perception of bias was created when the person who presided over the Applicant’s disciplinary hearing interacted with the Respondent’s witnesses and representative. Furthermore clause 8(2) of Schedule 2 of Employment of Educators Act provides that with the agreement of the educator, the presiding officer may impose the sanction of suspension without pay or demotion as an alternative to dismissal. The argument of the Applicant that there was no agreement for suspension without pay is supported in Moolman v ELRC and others (JR 1358/2010), having considered that the MEC’s decision was flawed mainly because of a misunderstanding of the pre-requisite that must be met before demotion could be imposed as part of an alternative sanction, the Labour Court remitted the matter back to the MEC for reconsideration of the question of an alternative sanction.

42. Based on the above reasons I am of the view that the suspension of the Applicant without pay amounts to an unfair labour practice as contemplated in Section 186(2)(b) of the LRA, as amended.

43. Section 193(4) of the LRA provides that an arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re-employment, or compensation.

44. I accordingly make the following award;

Award

45. I find that the suspension without pay of the Applicant is an unfair labour practice in terms of Section 186(2)(b) of the Act.

46. The Applicant is therefore awarded compensation of R62 328.77 which is equivalent to a month’s gross salary at the time that he was suspended without pay.

47. The respondent must pay the amount awarded to the Applicant in terms of the above paragraph by no later than 30 June 2023.

Signature:

Commissioner: Thobela Ncetezo