ELRC484-22/23WC

Commissioner: Lanthis Taylor
Case No.: ELRC484-22/23WC
Date of Award: 12 September 2023

In the Arbitration between:

Felecia D Lottering
(Union/Applicant)

and

DEPARTMENT OF EDUCATION – WESTERN CAPE
(Respondent)

Union / Applicant’s representative: Mr. Vernon Seymour (attorney) and the applicant in person
Telephone:
Telefax:
Email:

First Respondent’s representative: Mr. Frederick Scholtz (WCED Representative
Telephone:
Telefax:
Email:

PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. An arbitration hearing was convened under the auspices of the Education Labour Relations Council over the period 16 March 2023 to August 2023 in face-to-face hearings at Haarlem Street Vredenburg.
2. The applicant, Ms. Felecia Lottering was represented by Mr. Vernon Seymour, an attorney while Mr. Frederick Scholtz represented the respondent, the Department of Education – Western Cape (WCED). The proceedings were conducted in a mixture of English and Afrikaans. The parties were advised that the award would be rendered in English. The arbitration process was digitally recorded.

THE ISSUE IN DISPUTE
3. I must determine whether the applicant’s dismissal was in all respects fair.

BACKGROUND TO THE ISSUE
4. The matter came before another Commissioner who recused herself due to connectivity issues on the Zoom platform. The matter was then set down for face-to-face proceedings at Haarlem Street Vredenburg for consideration before me afresh.

5. The applicant was engaged as a Post 1 Educator and acting Principal at EJ Malgarte Primary School. She commenced her employment with the WCED on 1 April 1993 and was dismissed on 26 August 2022. At the time of her dismissal, the applicant was earning a base salary of R26164.75 per month.

6. The applicant was charged with two charges viz. theft of R7000.00 being the property of the school, alternatively dishonesty and authorizing of payment without following prescribed procedures. During the proceedings the applicant pleaded guilty to all counts. She was then found guilty by the presiding officer and was dismissed.

7. At the outset of the proceedings, the following issues were narrowed as the basis of the dispute:
Procedural – The applicant was not afforded an opportunity to present a defence
She was not represented at the hearing
Her Union told her to plead guilty
She was not appraised that she could present evidence and the timelines were not explained to her
Substantively - The evidence was insufficient to warrant a guilty finding on both charges

8. The applicant indicated that her dismissal was both procedurally and substantively unfair and she seeks retrospective reinstatement as a remedy.
SUMMARY OF THE EVIDENCE & ARGUMENTS:
5. Both parties presented bundles of documents in support of their versions. The WCED called five witnesses, while the applicant called four witnesses. I am required by the LRA to provide brief reasons to substantiate my findings and determinations in this dispute. As such despite considering all the submissions presented, I will only record in writing what I believe is relevant and what will relate to the core issues in dispute.

OPENING STATEMENTS
6. The respondent bore the burden of proof and as such commenced with presenting its version. Mr. Scholtz stated that the applicant’s dismissal was procedurally and substantively fair. She was charged with theft of R7000 being the school’s property. The alternative charge was dishonesty. The department would call witnesses to testify to this. The applicant did not repay any money to date. Furthermore, the applicant was charged with another charge of authorizing payment to Mr. Orlam without the necessary approval. The applicant voluntarily pleaded guilty to the charges, was found guilty and dismissed.

7. When she pleaded guilty, the parties were afforded an opportunity to submit mitigation and aggravation in writing. The Circuit Manager testified and the applicant was given an opportunity to cross examine him. She did not ask him any questions. The applicant did not appeal against the sanction.

8. Mr. Seymour stated that the applicant was not afford a full opportunity by the presiding officer. The representative for the department is an experienced person and the applicant had no background to labour disputes. The R7000.00 was repaid to the school and in respect of the second charge the SGB had authorized payments. The applicant would provide evidence accordingly.

THE RESPONDENT’S CASE
9. The respondent’s first witness, Christian Saayman testified under oath. He explained his role and duties as a School Finance and Record Officer. He stated that he was called to investigate a R7000.00 payment from the school’s banking account to the principal, Lottering’s personal account on 19 January 2021. He was tasked to determine the whereabouts of that money.

10. During this investigation, he spoke to Mesdames Mills (a teacher) and Clarice Jordaan (the financial clerk at the school). Jordaan told him that R7000.00 had been paid from the school to Lottering for textbooks. They told him that they had reported the financial transaction of R7000.00 because they were worried that no textbooks had been received nor was there any repayment of the monies. He checked whether the text books had been received; checked the receipt books, deposit books and bank statements for the period January 2021 to November 2021. The bank statements had an entry of R7000.00 paid to Lottering on 19 January 2021. He checked all the bank statements for January 2021 to December 2022 and could find no proof that monies had been paid back to the school. He discussed this with Lottering who confirmed that the amount paid to her account was for text books. However, there was no delivery note found, no books were brought into the school nor were any books added to the text book register. There were also no SGB minutes to support the purchase. Lottering told him that the supplier could deliver these books at any time and she would pay the company. He stated that one could infer from this that she was still in possession of the money.

11. Saayman explained that depending on the amount of the purchases or services, the SGB has to discuss and approve. Three quotes are required; the SGB is to decide on the quote and the financial clerk is to load the transaction onto the banking. The supplier is then paid upon delivery. This process was not followed. Saayman explained that the school is a no-fee school and that it receives money from the WCED for municipal bill and text books. Other monies are donated by local companies and the school also generates funds by way of functions

12. Saayman testified that the receipt presented into evidence by the applicant, differed from the school’s receipt books as the school used a specific numbering system in their receipt books. Lottering never told him at any stage that she had paid the money back and that she had a receipt as proof. He referred to 2 conflicting sets of SGB minutes, one with a paragraph indicating that money should be paid into Lottering’s account and the other without. He had obtained the minutes without this paragraph from the school’s official minute book and had forwarded them to the WCED on 10 June 2022 as part of his investigation. He stated that he and Mr. Daniels, the circuit manager went to the school to get clarity around an affidavit submitted by Jordaan. He however could not remember what the discussion was between Lottering and Daniels in this regard.

13. Saayman stated that the second charge against Lottering emanated out of the investigation in respect of the R7000.00 payment to her personal account. His investigation revealed that irregular payments had been made to Mr. Orlam to the values of R1850 on 1 March 2021 and R3400 on 24 November 2021. There were no minutes confirming the SGB approval of such payments. He also found familial ties between the applicant and Mr. Orlam. The implications of family ties could lead to a conflict of interest and in this instance, the principal had the final authorization. He explained that usually the SGB appoints the financial clerk to do the budgets. None of the schools have an external person and one Mr. Alkaster, a registered auditor services the schools in Circuit 3’s books by drawing up the financial statements. He had been appointed by the SGB.

14. During cross examination, Saayman confirmed that he had been at the school in January, May, September and November 2021. He also confirmed that he examines the finances of the school and that the auditor ensures that the school spends the funds correctly. He stated that the SGB cannot just appoint a party for the purposes of budget drafting but has to get approval from the Department. He confirmed that Mr. Orlam was involved in a professional capacity and not as Lottering’s uncle but indicated that there was no approval for his involvement. He did not speak to the Chairperson or the treasurer about this but this was part of his findings during his investigation. Saayman was referred to minutes in the applicant’s bundle where it was reflected that Orlam’s appointment and that the SGB was aware of his presence in October 2020. He stated that this situation only came to his attention when he was dealing with the issue that he was investigating at the time.

15. Saayman confirmed that he had spoken to Mills and Jordaan in the last month of Jordaan’s appointment. He confirmed that Jordaan had told him that she had to authorize the payment of R7000.00 which had not been paid back. She did not report it earlier because she cared for Lottering. He confirmed that he was aware of a break-in at the school but could not confirm the exact date. He had asked Lottering to buy a safe. He could not find any evidence of a break-in but money went missing. Monies had to be deposited regularly. He confirmed that the receipts provided in the bundle were copies of the receipts at the school and this depicted the only monies received by the school. He explained the process of reconciling the receipts with the banking deposit book and stated that if a receipt book goes missing, the principal is to inform the circuit office. Saayman indicated that the receipt presented by the applicant was never presented to him and he only became aware of this receipt at the start of the arbitration.

16. ¬ The respondent called the second witness, Clarice Jordaan who testified under oath that she had been employed as a finance clerk in a SGB post for the period 2018 to 2021 and that her contract had ended on the 31st of December 2021. She explained what her duties entailed and that Lottering was her supervisor. Jordaan confirmed that she had deposed an affidavit which she read into the record. The affidavit indicated that Lottering had approached her at her home telling her that she needed R7000 to supplement the R3000 that she had available because R10000 had to be paid to FNB the following day in order to avoid her sister’s home being repossessed. Lottering told her that she was going to the school to pay R7000 from the school account into her own account. She suggested that Lottering ask Ms. Louw for a loan instead but Lottering stated that she did not want to ask her. Lottering also asked her not to say anything to Chrisell Africa as she would tell her herself. A while later Lottering phoned Jordaan from the school and asked her to authorize the transaction which she duly did. She confirmed that two persons are required to authorize a financial transaction. The payment to Lottering’s account reflected immediately as the transaction was from FNB to FNB. When the school re-opened, she told Lottering that she was reconciling the cashbook and asked what entry must be inserted. Lottering indicated “readers”.

17. Jordan stated that she had deposed the affidavit because a story had been doing the rounds that she had stolen money and that this was the reason why she was no longer employed at the school. She sent an email to the circuit manager Mr. Daniels who told her to depose the affidavit. Jordaan stated that her affidavit was deposed in 2022 and that the transaction had taken place in 2021. The textbooks relating to the transaction were not ordered and there was no record of any repayment of monies while she was at the school despite Lottering telling her that she would repay the money when she gets a bonus in March 2021. Jordaan confirmed that it was her handwriting on the receipts that were submitted into evidence. She was not aware of the receipt that was presented as part of the applicant’s bundle and was not aware of, nor was there any proof of repayment of R7000.00 made by Lottering. She stated that Saayman came to the school on 2 December 2021 and spoke to her. He requested bank statements and receipt books which were given to him.

18. Jordaan confirmed the difference between the two sets of minutes where the one paragraph relating to SGB approval for payment to Lottering’s account was added to the one set. She stated that she was not aware of such a decision in a SGB meeting. When questioned why she only reported the matter to Saayman 11 months later, Jordaan stated that Lottering had told her that she had sourced a person who would provide the books and also indicated that she would sort the issue of the books out with Ms. Mills. She could not recall if this matter had been sorted.

19. During cross examination Jordaan confirmed her testimony. She further confirmed that she was unhappy that it was claimed that she had stolen money from the school and that she was angry and upset when her contract was not renewed. Lottering had told her that she would buy the books when she had approached Lottering to pay the money back. Her relationship with Lottering was generally good and she was not aware that Lottering was concerned about her work ethic. She was just told to apply for the position that she had been occupying for a while. She confirmed her conversation with Lottering regarding the R7000 to supplement the R3000 that Lottering had to assist her sister. Lottering told her that there had been a break-in and the money had been stolen. She confirmed that she had given all the receipt books to Saayman and that they were duly numbered. She confirmed further that she was part of the SGB but she did not approach the SGB about the money as she was hoping that it would be paid back or that the books would be bought.

20. The respondent presented its third witness, Ms. Melanie Mills who testified under oath that she is the acting Principal and also a grade 1 teacher at the school. From January to June 2021, she was on maternity leave and when she returned, she served on the SGB as a treasurer and part of the financial committee. She was also in charge of learner teacher support material (LTSM) with textbooks falling in this category. She had purchased Tippie textbooks for grades one and two in 2020 from Bargain Books on the advice of the subject advisor and after the SGB had identified a need for text books.

21. Mills explained how books are inventoried upon receipt. She was overall responsible for placing these books on the inventory list. Chrissel Africa, a former grade R practitioner and the sister of Jordaan, wanted to know from her whether she had received any reading books in 2021. Africa asked her to go through the bank statements and look for a R7000 entry. Africa told her that Lottering had money paid into her personal account marked as readers and this was why the R7000 was being raised as a concern. She went through the banking statements and saw the R7000 payment made to Lottering’s account.

22. Mills testified that when the school buys books, the supplier is directly credited. From the entry in the banking, it appeared to her that Lottering had ordered and paid for readers but there was no evidence or any record of the order. Mills stated that she was given an ultimatum by Africa and Jordaan to contact the financial support officer Mr. Saayman at the circuit office about the R7000. She told Saayman about the banking statements and that there were no books placed on the inventory list. She stated that she had spoken to Lottering sometime in June or July about the books. Lottering told her that she would order the books but was waiting on the supplier as some books were not available.

23. Mills stated that she accepted that Lottering was going to order the books but Africa and Jordaan kept on about the money not being paid back or the books not being received. She confirmed to Saayman that she had not received any readers after his visit. She also confirmed that she was not part of the SGB meeting of 13 January 2021. Mills confirmed that the receipts presented were from the school receipt books and that these were in Jordaan’s handwriting. She was shown a receipt dated 1 June 2021 where the former chairperson, C Thomas purportedly received R7000.00 from Lottering. Mills stated that when she had spoken to Lottering in June/July 2021, there was no mention about the purported repayment. She was also not aware of any repayment.

24. During cross examination, she confirmed that Saayman had come to the school after Jordaan had called him. She confirmed that Jordaan and Africa are sisters and that both did not have their contracts renewed. They were unhappy about this. She stated that the two had addressed her in June/July 2021 about the receipt of books. They did not tell her to call Saayman at that time. The call to Saayman was only made in November 2021. Her discussion with Lottering was a general discussion about the Tippie program and not the R7000.00. She confirmed that when she returned to school, Jordaan was working 3 days per week and another person designated by the principal would fill in to do receipting in her absence. She confirmed that she was not present at the meeting of 13 January 2021.

25. Mills confirmed that she knew Mr. Orlam and that he had drawn up the budget of 2021. He had met the SGB and had explained the budgeting to them. She had given him the required information for the first instance being 2020 for 2021 but not for 2021 for 2022. Mills stated that she was part of the SGB since 2011 except for a period of 6 months. Jordaan did the minutes in 2021 and another person, Kim Mattheys also did the minutes. She confirmed that the receipt books at the school have 200 receipts in them and that the receipt book with receipts 1 to 5 were issued in June 2021. The previous book would have ended sometime in May 2021. She confirmed that the handwriting on the receipt presented by the applicant into testimony was that of Lottering. This receipt book was not part of the receipt books at the school.

26. The respondent’s fourth witness, Avril David Daniels testified under oath that he was the Circuit Manager of Circuit 3 during 2021 with the school EJ Malgarte Primary being part of this circuit. Daniels testified that at the beginning of January 2022, Clarice Jordaan brought an incident to his attention where she claimed that Lottering had asked her to authorize payment of R7000.00 into her personal account. He immediately contacted Saayman who told him that he was aware of the situation. They then visited the school together to gather additional information. He advised Jordaan to put her concerns in writing. She did so in the form of an affidavit which outlined what had transpired between herself and Lottering. When he and Saayman went to the school, he spoke to Lottering in the library about the allegations made by Jordaan. She told him that the SGB had decided to pay the money into her account. When he asked why the money could not be paid directly to the service provider, she stated that she would pay the service provider when they delivered the books to her house. He informed her that this was not due process as books do not get delivered to peoples’ homes and payment is directly paid to the providers. He stated that he also told her that it was her duty to direct and guide the SGB and not allow any money to be paid into her account. She indicated that she was in the bathroom when they had made a decision in this regard. She told him that the money was still in her account at that time.

27. Daniels informed Lottering that he would have to refer the matter to Labour Relations as it was a serious matter. At no point did she indicate or show that monies had been repaid. He stated that he had testified at the internal hearing and was of the view that the trust relationship between him as Circuit Manager and her as principal had been broken.

28. During cross examination he confirmed that he had a meeting at the school with Lottering on 2 February 2022. He further confirmed that he knew Lottering’s sister as he knew the whole family but that he did not know where she resides. He stated that the context shows that something wrong happened when funds were transferred from the school account to Lottering’s account. He agreed with the charge of theft but confirmed that he had not laid criminal charges as this was outside his scope. Daniels confirmed that proceedings were initiated long after the incident but stated that action was taken when he became aware of the transgression. He knew that Jordaan was no longer at the school and that she had been upset about this. He stated that in his view, the matter would still have been reported if the two sisters’ contracts had been renewed.

29. The respondent’s fifth witness, Mr. Jacobus Williams testified that he was the presiding officer in the internal enquiry. Williams explained the rules and principles that he explained the parties prior to the commencement of the hearing. He asked questions around the notice, whether the accused employee understood the allegations; he explained the employee’s rights and questioned whether the employee understood these; he checked if a representative was present and confirmed with the accused employee whether the employee was comfortable to continue without representation in this instance.

30. Williams stated that he had compiled the disciplinary outcome report. The applicant had indicated that she would be proceeding without a representative and had told him that her mind was made up that she was pleading guilty. He confirmed that she entered a plea of guilty to both charges with the alternative charge then being withdrawn. She did so of her own free will. Williams stated that he explained the implications of her guilty plea and also had told her that he would make a finding after asking her questions. She responded to his questions and based on her guilty plea, he found her guilty. There were no objections raised and if any were raised, it would have been reflected in the minutes.

31. Williams stated that after the applicant had pleaded guilty, he gave her an opportunity to speak to the employer’s representative, Mr. Scholtz on her own about his mandate in the matter. Williams stated that he left them on their own so that the applicant could not claim that she was “bullied”. When he returned, she still stuck with her decision to enter a guilty plea. Thereafter, he explained that he would hear the mitigation and aggravation in the matter. The parties could submit verbally or in writing. Both opted to do so in writing. The WCED however saw fit to also call Avril Daniels to testify in aggravation. The applicant had the opportunity to pose questions to him.

32. Williams stated that he considered the Personnel Administrative Measures document (PAM) and the South African Schools Act (SASA) along with the seriousness of the misconduct to which Lottering had pleaded guilty. Lottering was a senior staff member and at the time of the hearing, no proof that the money was paid back was submitted. He stated that she had submitted in mitigation that she had not been given an opportunity to pay back the money. Williams stated that he viewed it as serious that Lottering had not paid back the money and that he only saw the receipt that she used to purportedly pay back the money during this arbitration.

33. During cross examination, Williams, confirmed his background and his experience as a pre-siding officer. He confirmed that the applicant had pleaded guilty and as such the employer had discharged its burden. William stated that the applicant had been afforded an opportunity to call witnesses in mitigation. He stated that he had a checklist that he followed and this was part of the checklist. He further stated that the applicant understood the charges after he had asked the questions relating to this. He confirmed that he had told the applicant that he had found her guilty after her guilty plea. When questioned about the time difference between the incident and the disciplinary hearing, he indicated that he did not consider the time difference to be an issue. His concern was the charges presented to the applicant and the plea submitted by the applicant. Williams stated that the receipt had not been presented to him, the applicant did not mention any monies having been paid back, nor had she mentioned that she did not have an opportunity to pay the money back and in his view also showed no remorse. The applicant presented her mitigation after aggravation was presented and did not challenge Daniels when he testified in aggravation. When it was put to him that he did not assist the applicant knowing that she was not represented, Williams stated that he did everything that he needed to do as a presiding officer. The WCED closed its case.

APPLICANT’S CASE:
34. The applicant, Felecia Dianne Lottering, testified under oath that she was employed at EJ Malgarte Primary School from 1 October 2005 to 26 August 2022. She was appointed as acting principal on 1 May 2018 until her dismissal. Lottering stated that she was instrumental in the overall financial improvement of the school.

35. Lottering stated that as the WCED representative at the school, she could not make decisions without consulting the SGB, a functioning body at the school. She stated that there was a difference in the minutes of 13 January 2021 insofar as the one set included a suggestion from Mr. Van Wyk who was the chairperson at the time. She confirmed that the minutes reflect an amendment relating to the R7000.00 and also that Thomas signed these whereas the other minutes reflect Thomas as being absent and no mention of the R7000.00. She confirmed that these were the minutes that Saayman collected from the school but could not explain why the minutes were changed some 15 months later. She stated that there was bad blood between her, Jordaan and Africa since January 2021 because she wanted to terminate Mr. Collison, a teacher’s services in December 2020.

36. Lottering stated that Van Wyk sent an email to the Department in June 2022 and she only discovered that the minutes given to Saayman were not correct when the minute book came back to the school a week after Saayman had collected it. Ms. Mills had indicated the difference in the minutes when they looked at them after a long weekend. All educators had access to the school’s computer system. She stated that the minutes reflecting the R7000.00 was on the school’s computer but she did not know how the minutes not reflecting the R7000.00 made its way into the minute book. She stated that Jordaan typed the minutes and that she would have changed the minutes.

37. Lottering stated that she did not want the R7000.00 to be paid into her account. Regarding the receipt that she presented into evidence, she stated that, she had enquired about Tippy readers in May 2021. Only grade 1 and 2 books were available but not grade 3 books. On 24 May 2021, Van Wyk and Swarts were attending a Microsoft Teams training session at the school. Lottering stated that she was attending a different meeting and when she was done, she got together with Van Wyk and Swarts. They came across R20140.00 and a further R589.00 (cake sales) in a steel cabinet. They completed the deposit book and locked the money in the steel cabinet. Her husband tested positive for COVID and she went into isolation after informing Mr. Daniels, the Circuit Manager. She returned to school on 1 June 2021 and gave Cathy Thomas, the vice Chairperson the R7000.00 in cash. The receipt book was full and they took a new receipt book. Lottering stated that Cathy had asked her to write out the receipt because she had trouble with her hands. Lottering wrote out the receipt and Cathy signed it. Lottering testified that she had also written out two receipts for learners who had paid their bus fare in Cathy’s presence.

38. Lottering stated that Cathy had taken the cash and she (Lottering) had told her to put the money in a blue box in the steel cabinet which they locked. Thereafter she left the school and approached Swartz (treasurer). Cathy went to Van Wyk and Swartz regarding the money. They thanked Lottering for paying the money back. Lottering stated that she was nowhere near Jordaan on 19 January 2021 as alleged in her affidavit. She stated that she was at Vredenburg Mall when a message from FNB seeking authorization for a payment came to her phone. Lottering confirmed that a payment had been made to her account. She stated that Jordaan and Africa were unhappy because their contracts were not renewed.

39. Lottering testified that Mr. Orlam has been setting up the budgets since 2019. Minutes reflect his presence along with Jordaan as secretary and Swartz as treasurer. In respect of the first charge, she testified that Saayman had visited the school on 2 or 3 December 2021. He came to see her about the R7000.00, her son’s appointment as an assistant and the appointment of her uncle, Mr. Orlam. Saayman questioned her about payments to her son and Orlam which were on the bank statements in his possession.

40. Lottering stated that she met with Saayman and Daniels on 2 February 2022 in the library where she was told by Daniels about the R7000 and the affidavit from Jordaan. And she was questioned around the affidavit and her understanding of it being a binding document. The meeting lasted for about 10 minutes. She was not asked about having made any repayments nor was any mention made of any expectation of repayment on her part. She referred to a receipt dated 1 June 2021 for R7000.00 and indicated that this was a receipt from a new receipt book that she had taken from the steel cupboard as the previous one was full. She indicated that cash deposits were made into the banking account in June 2021 (R20140.00 and R589.00) and further in October 2021 (R1450.00 and R410.00) and November 2021 (R1600.00 and R270.00 and R200.00). Lottering stated that she had made the cash deposits of R20140 and R589 on 5 June 2021. There was a break-in at the school in October 2021 and all money that was in the steel cabinet after 5 June 2021 disappeared. Lottering stated that the SGB knew of the break in which was discovered when they returned to school in October 2021.

41. Lottering explained that her union representative, Kenneth Williams had advised her to plead guilty at the internal hearing. Neither Kenneth Williams nor any other representative of SADTU attended the hearing to represent her. She stated that she was disadvantaged and uninformed about her pleading guilty but felt that she was guilty because she had authorised the payment into her account. In respect of her plea of guilty relating to payments made to Orlam, she again stated that it was her who authorised the transaction with the full knowledge that Orlam was her uncle.

42. During cross examination Lottering confirmed that she did not tell Saayman that she had paid the money back as he did not want her to explain anything to him. She denied telling Jordaan that she would pay the money back in March when she received a bonus. She further stated that when she spoke to Mills the discussion revolved around the need to purchase books rather than that she had discovered that the books were not available in May already. When questioned about the R7000 not being deposited in June 2021, she stated that she could not deposit money that had not been signed off as having been received. She had instructed Jordaan to deal with this but Jordaan had ignored her instruction. She advised the treasurer but he was in isolation. Lottering stated that she did not pay the money back to the school’s account by EFT because she did not know what reference she would need to use and the auditor would question when the deposit was made. She confirmed that she pleaded guilty because she had authorised the transactions.

43. When questioned about the receipt that she had in her possession, Lottering indicated that she had done an investigation and that this particular receipt book which was not at the school, had been found amongst things removed by Jordaan. A relative of Jordaan’s had stolen the book from Jordaan and had presented it to her wanting payment for it. Lottering stated that if she had lost her job as Jordaan had, she too would fabricate things. This was in response to a statement that Jordaan had testified that she had insisted that the money be transferred into her account. She confirmed that the normal practice would be to pay the supplier directly form the school account. She stated that she had transferred the money from her cheque account to her savings account while waiting for the books. She did not advise Mr. Daniels of the situation.

44. Lottering confirmed that she attended her hearing without a representative and that she had contacted her representative Kenneth Williams who told her that she is guilty and should plead guilty. He could not come out to represent her. She confirmed to him that she would plead guilty on his advice. She did not think that she would be dismissed as one Jimmy Williams had also pleaded guilty to allegations against him and he had been suspended without pay for three months. She stated that while Jacobus Williams (presiding Officer) had explained the implications of pleading guilty, he did not explain what would happen next. When he accepted the plea, he stated that he would allow mitigation to be submitted by 12 August 2022. She agreed to this. She did not say anything regarding the mitigation to the presiding officer and did not object to his approach. She submitted mitigation as she thought it would help her. She re-iterated that she only pleaded guilty because she authorised the transactions. She focused on the authorised aspect rather than “theft”.

45. Lottering confirmed that she submitted her plea on the advice of her union. She further confirmed that the Presiding Officer had informed her that he had found her guilty and also confirmed that she had been given an opportunity to cross examine Daniels. Lottering confirmed that she did not state that the money had been paid back and confirmed that in her mitigation she had indicated that she was prepared to pay back the money. She was of the view that this related to the monies paid to Orlam. Lottering stated that Williams treated her fairly by asking the relevant questions and allowing her the opportunity to question Daniels.

46. The applicant called her second witness, Jacobus Swartz who testified under oath that he was the treasurer of the SGB during 2020/2021. He attended all meetings and confirmed that Jordaan worked with the money in the office at the school. He stated that in the meeting of 13 January 2021, he remembered that the SGB insisted that R7000.00 be given to the principal and that it be paid into her account. It was agreed that the school would be closed when the books arrived and that the principal could pay the supplier the money that had been given to her. He stated that Lottering was present at the meeting and had objected to the money being paid to her.

47. Swartz stated that in June 2021, Lottering and Cathy came to his home and told him that Lottering had paid R7000.00 to the school and showed him the receipt. A week or two later Mills called him to the school where she spoke about the R7000.00. Lottering brought her receipt and Mills opened the drawer to find a large amount of money. He advised her that the money needs to be banked as there was no need for money on the premises. Jordaan was told to bank the money but she stated that she does not have transport. Mills had moved from Vredenburg and nobody wanted to do the banking. Two other teachers also refused. He told Lottering that Saayman had approved a R200.00 payment to the person doing the banking for costs incurred. Mills did not want to pay the R200.00. The school is in Paternoster with the bank being in Vredenburg, some 30 kilometres away. He stated that he was aware of the break-in at the school and that money was gone.

48. Swartz testified that the SGB had appointed Orlam as they had heard that he does books. He had worked with Mills previously and Jordaan had called him to a meeting. He did the books and the budget and the school would pay him.

49. During cross examination, Swartz stated that Mills had shown him the R7000.00 but he was not sure of what happened to it. He does not work with the money. He could not say when the break-in took place but confirmed that Jordaan was still there. He confirmed that nobody banked the money with two educators refusing to do so despite the approval of R200 payment. He left the school in 2021 but was not sure of the date. He confirmed that he knew that Lottering and Orlam were related. The school needed someone and he had done the work previously. He confirmed that he knew Alcaster who also did books and finance. He was the auditor from before 2019. He stated that Orlam had been appointed because the SGB felt that Alcaster was not the right person for the job. Two payments were made to Orlam; R1800.00 on 1 March 2021 and R3450.00 on 24 November 2021. Swartz was very specific on these dates. During re-examination he stated that he left the school in 2022.

50. The next witness for the applicant, Matthew Maxwell Orlam testified under oath. He presented his professional credentials and described how he became involved at the school. He was invited by the SGB to make a proposal regarding drawing up of the school budget. He indicated that he needed to meet with the SGB to discuss his bona fides and that he was related to Lottering. We he presented is credentials, Lottering had excused herself from the meeting. Having presented his credentials, the school accepted his proposal and agreed that he be appointed. He stated that he had been involved with the school for 4 years and was paid for services rendered. Orlam stated that he knew Alcaster who was appointed as the school auditor. Their roles were very different. He stated that approval for his services was made by the full SGB and due diligence was done

51. During cross examination, Orlam confirmed that he had received the two payments reflected in the allegations. These were for the services that he had rendered. He also confirmed that he is Lottering’s uncle. When it was put to him that there were no minutes to support the payment requests, he stated that he too had sought the minutes as part of due diligence but that Jordaan told him that documents were missing after the break-in. He re-iterated the different roles of himself and Alcaster.

52. The final witness of the applicant, Abraham van Wyk testified under oath that he has served on the SGB since 2018 and had also served as chairperson in 2019 and deputy chairperson in 2020. Lottering was the principal and he also knew Daniels who came to speak to him when needed. Lottering had told him of the allegations levelled against her. He was not approached by any WCED official regarding SGB activities. Van Wyk stated that the SGB decided in a meeting of 13 January 2021 that R7000.00 be paid into the account of Lottering for books because the school was closing after the first quarter. If the books did not arrive, then she would pay the money back. They arranged it as such because nobody would be on the premises when the books arrived.

53. Van Wyk stated that school opened on 19 January 2021. The books never arrived and Swartz told him that the money had been paid back. Swartz told him that proof had been shown to him by Lottering and Cathy. Van Wyk explained that he had been called to the school to sign the minutes. He did so in a hurry because he was busy sorting out his accommodation. He went back after Swartz called him to tell him that he was worried about the R7000.00 and that he had incorrectly signed the minutes. He stated that he went to Jordaan who indicated that she would correct the minutes. She did not do so even though he had approached her on a number of occasions. He confirmed that he had sent correspondence to Mr. Scholtz of the WCED on 10 June 2022 regarding the minutes that Jordaan had to amend. He did so because he saw an official car at the school when he was passing. This was Saayman collecting the minutes from the school.

54. Van Wyk stated that Orlam had rendered services for 4 years. This was approved by the SGB. When services are rendered, the SGB is to approve and if the services have been rendered, the school must pay. In relation to the break-in, he stated that he had been called to the school after Lottering called him. She showed him the office. The police, Saayman and WCED safety officer were notified and they also came to the school. In relation to Jordaan’s affidavit, he stated that she made the affidavit after her services ended. In respect of the allegations in the affidavit, he stated that he did not have any discussions with Jordaan during the year regarding these.

55. During cross examination , Van Wyk confirmed that Saayman can visit the school about school affairs and that Lottering had made him aware that Saayman had come to fetch the minutes. He stated that he had sent the email to Scholtz as Jordaan had not taken the minutes correctly and it would have been a possibility that the incorrect information would be sent to him. Van Wyk confirmed that when money is made available for books, the payment would usually be made directly to the supplier. There was a deviation because the school would close and if the books arrived in the school holidays, Lottering would pay for the books. He confirmed that R7000.00 was paid to her account but books were never received. He did not engage Lottering about this from January to December 2021. He only engaged Swartz who indicated that he would speak to Lottering. Van Wyk was adamant that the SGB decided to pay the money into her account despite her protests.

56. In relation to the allegation of there being no approval for payments to Orlam, Van Wyk stated that the SGB had a struggle with Jordaan relating to minutes. He stated that some minutes were missing and that this was in order to frame Lottering. He stated that he was not aware of Alcaster’s appointment but knew that he had complaints about Lottering. Budgets were not his field and that is why Orlam was used. He stated that Saayman never spoke to him in the capacity of Chairperson.

57. Both parties submitted closing arguments in writing on the agreed date which I have considered and which will form a part of the overall award.

ANALYSIS OF THE EVIDENCE AND ARGUMENTS:
58. I do not deem it necessary to regurgitate the closing arguments in the same vein as I have encapsulated the testimonies presented above. I will deal with the evidence as I see fit in relation to the overall dispute. The respondent bears the burden of proving that the applicant’s dismissal is both procedurally and substantively fair as is the applicant’s claim in the matter before me.

59. It is common cause that the applicant pleaded guilty to the allegations levelled against her. At no point during the arbitration did she refute or deny this to be the case. The applicant was charged with two charges viz.
Charge 1 – It is alleged that you are guilty of misconduct in terms of section 18(1)(dd) of the Employment of Educators Act, 76 of 1998 (hereinafter referred to as the Act), in that on or about 19 January 2021, you committed a common law offence, namely theft, in that you stole an amount of R7000 the property of EJ Malgarte Primary School when you authorised said amount to be paid into your personal FNB account.

Alternative to Charge 1 - It is alleged that you are guilty of misconduct in terms of section 18(1)(ee) of the Act in that on or about 19 January 2021, you committed an act of this honesty, when you authorise the payment of an amount of R7000 from the school funds of EJ Malgarte Primary School into your personal FNB account, in lieu of “leesboeke”, whilst in truth you never purchased books for the school and said amount is still unaccounted for.
This allegation was later withdrawn.

Charge 2 - It is alleged that you are guilty of misconduct in terms of section 18(1)(b) of the Act, in that on or about 1 March 2021 and 24 November 2021, you wilfully, or negligently mismanaged the finances of EJ Malgarte Primary School, by authorising payments to Mr M Orlam to the amount of R5250.00, for compiling the school’s budget, without obtaining SGB approval.

60. The procedural challenge relates to the applicant’s contention that she was not afforded an opportunity to present a defence; that she was not represented at the hearing; that her union told her to plead guilty; that she was not apprised that she could present evidence and that the timelines were not explained to her. The procedural aspect was testified to by the presiding officer, Mr Jacobus Williams. The record will reflect that I as the presiding Commissioner directed that Mr. Williams be called to testify and if needed that he be subpoenaed to appear before the tribunal. I did so in terms of Section 142(1)(d) of the Labour Relations Act read with Section 138(1) of the same Act. My directing the presence of Mr. Williams became one of the issues that the applicant’s representative sought to use to bring an application for my recusal. The recusal application was dealt with and the applicant was advised on the record that the application was unsuccessful and that the matter would continue. The matter was concluded by way of both parties submitting their closing arguments for my consideration after all witnesses had testified.

61. From a procedural perspective, the applicant’s contention that she was not afforded an opportunity to present a defence is without merit. Mr. Williams testified that the applicant had pleaded guilty after the allegations were put to her. According to his unchallenged testimony, he explained the implications of pleading guilty to Ms. Lottering but she was adamant that she would be pleading guilty. Ms. Lottering confirmed that she had pleaded guilty because she had authorised the payments. When a person pleads guilty to an allegation, it is generally accepted that the person acknowledges that the person has done what is alleged. Ms. Lottering is an educated and well-versed literate person. The allegations are clear insofar that Charge 1 relates to an allegation of her committing “a common law offence, namely theft, in that you stole an amount of R7000.00 the property of EJ Malgarte Primary School when you authorised said amount to be paid into your personal FNB account and Charge 2 relates to “you wilfully, or negligently mismanaged the finances of EJ Malgarte Primary School, by authorising payments to Mr M Orlam to the amount of R5250.00, for compiling the school’s budget, without obtaining SGB approval.(my emphasis). These are the very allegations that she pleaded guilty to and to which she was afforded an opportunity to present mitigation for. In my view mitigation is a form of defence which could potentially negate the severity of a sanction that could be imposed.

62. The issue of not being represented and her union advising her to plead guilty falls squarely at the feet of the applicant. Williams’ uncontested testimony is that the applicant confirmed that she would be proceeding without representation and also that she was adamant to plead guilty despite the implications of doing so being explained to her. In my view, the applicant exercised choices. She chose to proceed without representation and she chose to plead guilty to the allegations. These procedural challenges also stand to fail.

63. The applicant’s representative, Mr Seymour raised further procedural challenges that she was not apprised (he said appraised) or informed that she could present evidence nor were the timelines of doing so explained to the applicant. This procedural challenge also stands to fail. The presiding officer did not have to inform her that she could present evidence to support her case as she had pleaded guilty to the allegations as presented to her (my emphasis). As previously stated, the uncontested version is that the applicant was adamant in pleading guilty and on her version, she was afforded an opportunity to present mitigation for consideration which she duly did. Thus, in consideration of the above, I find the applicant’s dismissal to be procedurally fair.

64. The applicant’s substantive challenge is that the evidence was insufficient to warrant a guilty finding on both charges. It is clear that the presiding officer, Mr Jacobus Williams found the applicant guilty on her own admission of being guilty and after she had pleaded guilty. This he testified occurred after he had asked her relevant questions to satisfy himself of her plea which on his uncontested version was done voluntarily. This pleading guilty differs remarkably from where a presiding officer has to assess evidence placed before him or her and has to make a finding on that basis. It is very clear that no evidence was led because the applicant pleaded guilty and the applicant has not denied that she had indeed done so. She was found guilty at the internal hearing on her own plea of being guilty. The applicant’s contention that the evidence was insufficient to warrant a guilty finding on both charges falls short of the mark.

65. Despite the applicant having pleaded guilty and having been found guilty at the internal hearing, the matter before me is a de novo process. I am compelled to examine the evidence placed before me and am to make a finding in respect thereof and to determine whether the applicant’s dismissal was both procedurally and substantively fair. I have already found the applicant’s dismissal to be procedurally fair. The following was considered in respect of the substantive aspect:

66. The respondent’s witnesses testified along a timeline golden thread relating to the R7000.00 being transferred into the applicant’s bank account on 19 January 2021 and the highlighting thereof to the Finance and Record Officer in December of 2021. This triggered the investigation which ultimately culminated in the applicant’s dismissal in August 2022. All of the respondent’s witnesses testified that they were never informed by Lottering that she had repaid the money at any point. Saayman, Jordan and Williams testified that they were not aware of and only became aware of the “receipt” at the arbitration proceedings while Jordaan testified that Lottering had not mentioned any repayment during their interactions. Daniels testified that Lottering told him that the money was still in her account in February 2022. Williams testified that Lottering indicated in her mitigation that she had not been given an opportunity to pay back the money. His version was confirmed by Lottering’s own submission that she did not state that the money had been paid back and her confirmation that she was prepared to pay back the money. This also substantiates the version that the money was not repaid.

67. Jordaan, testified that Lottering had approached her at her home to advise her that she was going to transfer funds from the school account to her own. She further testified that Lottering had phoned her from the school for her to authorize of the transfer of funds. This testimony was not challenged during cross examination. It was only when the applicant testified, that she stated that she was at Vredenburg Mall when a message from FNB seeking authorization for a payment came to her phone. There are two conflicting versions in this instance; Jordaan deposing an affidavit and Lottering testifying under oath. Interestingly, it needed two people to complete the financial transaction, one to initiate and the other to authorise the transaction.

68. Jordaan stated that Lottering went to the school, did the transfer and asked her to authorise it whereas Lottering states that she received a request for authorization from FNB thus implying that Jordaan did the transaction. It does not really make a difference who initiated payment, there was still a need for a second person to authorise the transaction. The question begs to be asked why Jordaan would randomly decide on 19 January 2021 to make a payment to Lottering’s account. Jordaan did not have a basis for doing so as the minutes that were on file did not reflect that the SGB insisted that the money be paid into Lottering’s account. These were only changed later and as testified to by Van Wyk, he only submitted these to Mr. Scholtz on 10 June 2022 some eighteen months later. They never formed part of the “official” minutes contained in the minute book at the school. Jordaan also made no bones about the fact that she was angry because her contract was not renewed. The overriding factor in my mind though is her testimony relating to how she felt about the story doing the rounds that she had stolen money being the reason for her no longer being at the school. In my view Jordaan gave a credible version of what transpired.

69. Lottering testified that she did not want the money in her account. She also testified that she knew what the process was regarding payments to suppliers. She could have declined to authorise the payment if her version is to be believed that she received an authorization request from FNB and she was uncertain of the transaction.

70. Mills testified that she had spoken to Lottering about the books sometime in June/July 2021 when she returned to school after maternity leave. This was after she had investigated and found the R7000.00 entry in the banking statements as alluded to by Africa and Jordaan. She testified that the applicant had told her that she would order the books but was waiting on the supplier as some books were not available (my emphasis). By implication, this would mean that Lottering was still in possession of the R7000.00. Mills testified that the applicant did not tell her that she had paid the money back on 1 June 2021. Mills further testified that from that time until Saayman was informed of the R7000.00, Africa and Jordaan kept telling her that the money had not been paid back. On the balance of probabilities, the money in all likelihood had not been paid back. My view in this regard is substantiated by the testimony of Saayman, Daniels and Williams who testified that throughout the period of investigation, there was no mention by the applicant at all that the money had been paid back. This is incredible as this would be a logical form of defense in the face of an accusation that she had taken the money.

71. The applicant presented a receipt for cash allegedly given to Cathy. The receipt was issued in the handwriting of the applicant as testified to by Mills. This too was uncontested. The Commissioner directed the applicant to present the receipt book if at all possible. She duly did so at an ensuing sitting of the hearing. The receipt book was not among the receipt books from the school that the Commissioner also directed the respondent to present. The applicant presented an elaborate story about Jordaan having removed this receipt book from the school and that this receipt book was stolen from Jordaan by a relative who offered it to the applicant for payment. This submission is implausible. The receipt was issued on 1 June 2021. The receipts that were presented by the respondent follow in sequence and are duly numbered according to the system used by the school. The receipt book presented by the applicant did not have any sequential numbering to the previous receipt book that was full. There would also in my view, be no reason for Jordaan to remove the non-sequential receipt book as alluded to by Lottering. Jordaan’s job was still secure at that point and it was only in December 2021 that she became aware that her contract was not being renewed. Also, if the book was at the school during June 2021, it stands to reason that Jordaan would have numbered it in line with the sequential numbering being used at the time as she would generally be issuing receipts at the school.

72. Jordaan steadfastly testified that no money had been repaid by Lottering. According to Mills, Jordaan and her sister Chrisell Africa, had approached Mills in this regard way beyond the purported period that Lottering allegedly repaid the money. Further considerations are that Lottering allegedly paid the money back in cash and not EFT. The money was paid into her account via EFT. She allegedly made payment prior to the banking of R20140.00 and R589.00 she found in the steel cabinet and which she confirmed that she had banked. It is strange that she did not bank the R7000.00 along with that money as it would have been easy to reconcile the receipt of R7000.00 with the banking deposit. Lottering’s statement that she did not pay the money back to the school’s account by EFT because she did not know what reference she would need to use and that the auditor would question when the deposit was made does not make any sense. There would most certainly have been an explainable paper trail if this had indeed been done in that manner.

73. Lottering’s witness, Swartz did not give a credible account in his testimony. He was the subject of an inquisitorial approach that I adopted as the applicant’s representative struggled to elicit his testimony in his home language of Afrikaans. He was selective in his memory by stating that he could remember the SGB insisting that the money be paid to Lottering’s account and also the specific dates that money was paid to Orlam but could not remember when he had left the school. He testified that he left the school in 2021 and then later stated 2022. He stated that Lottering and Cathy had come to his home to tell him that Lottering had repaid the money and had shown him a receipt. It is thus evident that he was not present when the money was purportedly repaid. Swartz stated that a week or two later Mills had spoken to him about the R7000.00. She showed him a large amount of money. Once again, he was very specific that R7000.00 was shown to him but he was not sure what happened to it. This version was not put to Mills.

74. Van Wyk’s testimony also leaves a lot to be desired. He stated that the decision to pay the money into Lottering’s account occurred on 13 January 2021. This happened just before the school opened for the year and it seems strange that it was allegedly decided to pay the money to Lottering because of the supplier would potentially deliver the books to her home during the school closure. This is implausible in my view as suppliers to schools are well aware of the school calendar and most certainly would not deliver to the school in the school holidays let alone delivering to an educator’s home. Van Wyk stated that if the books did not arrive, then Lottering would pay the money back. The given the reason for paying money into Lottering’s account was that delivery could take place within the school holidays. It is therefore a bit odd that there was no set date by which the money had to be paid back if the books were not delivered to her during the school holidays.

75. Van Wyk’s account largely relied on hearsay. He stated that Swartz told him that money had been paid back. Swartz told him that Saayman was at the school to collect the minutes and it was then that he realized that the minutes were not correct. He only sent the amended minutes to Scholtz on 10 June 2022 and could not account for any plausible reason why the minutes differed from the “official” ones in the minute book at the school other than to say that he did not read the original ones and laid the blame at the feet of Jordaan for not amending them.

76. In Stellenbosch Farmers’ Winery Group Ltd and another v Martel et Cie and others [2003] (1) SA 11 (SCA), the Supreme court of appeal held that where there are conflicting versions, a commissioner, must make a finding on the credibility of the witnesses and the probabilities of the two versions in order to determine where the truth lies. In this instance, the testimonies of the respondent’s witnesses are more probable than that of the applicant and her witnesses as outlined above. Thus, on her own admission of guilt and on the balance of probabilities after considering all the evidence before me, I find the applicant guilty of the allegation levelled against her in charge 1.

77. While there’s been a focus on charge 1 as outlined above, I am also cognisant of the fact that the applicant was charged with, pleaded guilty to, and was found guilty of a second charge viz. authorising payment to Orlam on two occasions without is SGB approval. Orlam testified that he rendered services to the school as a professional and had received payment for the services rendered despite his familial tie to the applicant. There is no doubt that this indeed was the case. The issue however does not relate to his service rendition but rather that the applicant authorised payment to him without obtaining SGB approval. This is on the applicant and has no bearing on Orlam’s credibility. The applicant has pleaded guilty of own accord to not getting approval before authorising payment to Orlam and accordingly I find her guilty of the allegation.

78. When one unpacks the substantive fairness of the applicant’s dismissal, it is evident that rules exist in relation to theft and the management of school finances; that the applicant breached the rules (she pleaded guilty to doing so on own accord); the rules are known or could reasonably be expected to be known by someone of the applicant’s level and the consistent application of the rule was not challenged. The matter came before me as a hearing de novo with the applicant not disputing that she had pleaded guilty. In my view, she is claiming that the sanction of dismissal is inappropriate. This is the only aspect that I am to consider.

79. I have considered the evidence and the totality of circumstances in this matter including the principles outlined in Sidumo & another v Rustenburg Platinum Mine Ltd & Others (2007) 28 ILJ 2405 (CC), Schedule 8 of the Code of Good Practice – Dismissal in the Labour Relations Act 66 of1995 along with the provisions of The Employment of Educators Act which calls for a dismissal in particular instances. Section 18(3)(i) of this Act makes provision for dismissal, if the nature or extent of the misconduct warrants dismissal. The chairperson of the internal enquiry quantified why he had imposed a sanction of dismissal. I concur with his view.

80. It must be mentioned that Mr. Seymour was taken to task about his contemptuous comments that were relayed to me by the applicant on his behalf when he failed to appear at the given time on 17 August 2023 and after being afforded a reasonable amount of time to appear on the day. This aspect was dealt with on the record and no further action was considered. Mr. Seymour, was also directed to address me on the contents of the medical certificate that he presented in respect of the postponement of the matter on 3 July 2023 and why costs should not be imposed. He duly did so. I have considered and accepted Mr. Seymour’s submission and deem that no further action is required in this regard

81. Thus, in consideration of all of the above, I render the following award:

AWARD:
82. The respondent has discharged the burden of proving that the applicant’s dismissal was procedurally and substantively fair. The applicant is not entitled to any relief.

L M Taylor
Commissioner