ELRC409-22/23EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HEARD AT MTHATHA

Case No: ELRC409-22/23EC

In the matter between

NAPTOSA obo MPITSHANE, LT Applicant

and

THE DEPARTMENT OF EDUCATION: EASTERN CAPE Respondent

Arbitrator: Pumeza Ndabambi

Date of award: 21 September 2023

SUMMARY: Section 186(1)(a) - Labour Relations Act – Unfair Dismissal - Procedural and substantive fairness


ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

1. This matter came before the Education Labour Relations Council (ELRC) for arbitration, in terms of section 191(5)(a) of the Labour Relations Act 66, 1995, (the LRA). The Applicant, Ms L. T. Mpitshane, was represented by Mr Aaron Mhlontlo, an official of NAPTOSA and the Respondent, Department of Education: Eastern Cape, was represented by Ms Ntombomzi Damane, the SSC: Labour Relations. The hearing was heard on 7 November 2022, 22 - 24 February 2023, 27 - 29 March 2023, 5 - 7 July 2023, and finalised on 25 August 2023.

2. The proceedings were recorded electronically and Ayanda Matata provided interpretation services throughout the proceedings.

3. Both parties agreed to submit written closing arguments by no later than 1 September 2023 and indeed both parties complied.

ISSUE TO BE DECIDED

4. I am required to determine whether the Applicant’s dismissal by the Respondent was procedurally and substantively unfair, and if so, determine an appropriate remedy.

BACKGROUND TO THE DISPUTE

5. The Applicant worked for the Respondent as an Educator from 1992, earning R33 646. 32 per month. She was dismissed on 25 August 2022, having faced 4 charges of misconduct in terms of sections 18(1)(a), 18(1)(i), 18(1)(f) and 18(1)(m) of the Employment of Educators Act 76 of 1998, as amended (the EEA) based on which she was dismissed. She is challenging procedural and substantive fairness of the dismissal and as a remedy, she is seeking reinstatement.

SURVEY OF EVIDENCE AND ARGUMENT
Respondent’s Version

6. The Respondent’s version was led through the evidence of 6 witnesses and a bundle of documents, the summary of which is outlined below: -

7. The first witness, Ms Lusanda Ndema-Ngxikana (Mrs Ngxikana) testified that she is the Departmental Head of Mthatha Technical School, whose duties are to teach and supervise teachers in the phase. The Applicant was in the GET Phase, supervised by herself. They do class allocations before schools close in December. Class allocation is done by departmental heads and Deputy Principal or curriculum heads before submitting to the Principal for approval.

8. The Applicant was allocated in her phase for English Grade 9A and Grade 9B and when schools open Teachers are informed of the class allocation. Mr Mkhaza is the head for Languages with the Deputy Principal, Mrs Mququ. In the year 2021 schools opened late because of covid-19. On the first day the Principal welcomes staff and the following day he does departmental meetings. The Applicant was supervised by Mr Mkaza and was in the GET phase. If a teacher does not go to class she would intervene and call the first departmental meeting where she informed everybody to attend. The Applicant did not attend.

9. She does her invitation to meetings by drafting it on a book and asks one of the teachers to circulate and get teachers to sign. The Applicant read the invite and did not sign. Later she came to her and told her she would deliberately not attend and was unwilling to tell her the reason. She continued with preparation for the meetings since there was a clash of meetings in the languages department. In her meeting not all teachers attended and some tendered apologies and she assumed that the Applicant would attend another meeting.

10. This meeting was their first meeting wherein teacher allocation would be discussed and allocations communicated and they would distribute teaching material and share ideas. She assumed that Mr Mkaza would give the Applicant her allocation. When she spoke to Mr Mkaza she told him that the Applicant did not attend her meeting and thought that she would go to Mr Mkaza to get her teaching material. She noticed that she did not teach and intervened. She did not go to the Applicant and ask because she saw that she was not willing to say or explain anything. The Applicant told her to ask the Principal.

11. Ms Ndema said she reported to the Deputy Principal Mrs Mququ, that learners are left unattended and learners complained during the English period. Mrs Mququ said she would attend to the issue. She saw she attended to the issue because she kept fighting with the Applicant because there was no co-operation. She thought Mrs Mququ and Mr Mkaza would attend to the Applicant. The Applicant would come to the office and shout at Mr Mkaza and did not want to be part of what was going on. Mrs Mququ reported to the Principal. Learners were left unattended for the whole term (February to April) and the Applicant would go to class and ask students to sign the register and leave.

12. Assessments were done and she does not know how they were done by the languages department. In term 2 Mr Tiyo attended to the learners, a job that should have been done by the Applicant. In 2020 the Respondent employed Education Assistants (EAs) and their contracts were still active in the 1st term. The Applicant did not attend class again in term 2 and the school kept renewing Tiyo’s contract. There were no complaints from learners thereafter.

13. The 2nd witness Mr Sandiso Tiyo (Mr Tiyo) testified that he was employed by the Respondent as an EA from November 2020 assisting Educators and in 2021 he was allocated classes to teach English in Grades 8B, 8C and Economic Management Sciences in Grade 9D. He was on a fixed-term contract. After expiry of his contract he was called to be a School Governing Body (SGB) Teacher. At this stage Grade 9D was not part of his classes to teach and he taught English in Grades 8B, 8C, 9A and 9B with effect from 1 May 2021. He still teaches at the school, English in Grades 10T1,10T2, 10T4, 8A and 8B.

14. He testified that he knows the Applicant as she was working at the school when he got there. Their first conversation was when the Applicant called him and asked if he had any qualifications to which he replied in the affirmative. She then asked him to give his qualifications to her and he did not as he had to rush to class. The other time was when the Applicant wanted to see his class register for Grades 9A and 9B. The Applicant told him that she wanted to build a team and they would be working together in Grade 9 and also asked for the equipment, which Mr Tiyo promised to provide her the following week. He did not give the equipment as promised as he felt there was no need for her to ask for his teaching material. Mr Mkaza did that for English. Later the Applicant wanted to take some books from him and he refused to give them to her. She took one and asked him what story they were doing and he responded to her.

15. On the same day the Applicant went to his class at 12h00 and started to distribute papers to learners to sign. Mr Tiyo told the Head of Department (HOD) who told him to go to the Deputy Principal, Mrs Mququ who went to the Principal. The Principal told the Applicant to leave class because that is not the agreement they had. He was told by the Principal to go to the office. Mr Tiyo had to go to another class, 9B. On arrival at the class the Applicant was already there. The Principal and Deputy also went to that class. On arrival the Applicant was already teaching, instructing learners to sign the register. The Principal told her to leave the class and she refused. The Principal told Mr Tiyo to start his lesson and he started by asking one learner to read. The Applicant was still there.

16. The Applicant told him that was not the way to teach and started taking pictures/photos and said it is evidence that she was in class and did not negotiate. The Applicant started saying to him that he is an ordinary SGB Teacher and does not know who she is. He must not s*hit on her. The Deputy Principal asked the Applicant to leave and the Principal pulled her out. The Deputy Principal said to the Applicant it was not part of the agreement as she was required to write a letter before she could be allocated to class. The Applicant said she was busy with a lesson. Mr Tiyo was not aware of any agreement and heard for the first time when the Principal and Deputy were in the class.

17. The Applicant said she was busy with the class and learners started making noise, that is when the Principal pulled her out. The Applicant did not go and pull tables. The Deputy Principal stood there until they had to leave and the learners also started to leave. The Applicant left first and the Principal followed her. There was no tuition thereafter and 9B was also affected/disturbed but there were teachers in other classes. Mr Tiyo went to his car and went to Spar to get a drink. He was told by Mr Mkaza to calm down as the School Management Team (SMT) would take care of the matter. The following day he saw the Applicant and they did not speak and the Applicant did not teach Grade 9 thereafter.

18. Thereafter he was not on speaking terms with the Applicant and she referred to him as ‘Uqaqadekile’ meaning he is disrespectful and there is no need to teach him anything because he is disrespectful, after being asked by Ms Myataza if he had signed documentation for the student teacher placed in their school. It is not easy for him to go to learners and he was not on speaking terms with the Applicant. He had never been called by the SMT with the Applicant after the incident.

19. The third witness of the Respondent, Mr Mcebisi Mkaza (Mr Mkaza) testified that he works as a Departmental Head and commenced work at Mthatha Technical College in 2015 and is the Head of Languages and Life Orientation. His functions, among others, are to facilitate teaching and learning, induct teachers, supervise work, check quality of papers, ensure advancement of learning, professional development, assist the Principal in compiling reports, support teachers, chair and facilitate departmental meetings.

20. The Applicant was a colleague since 2015 under his department of Languages and was a Post Level 1 Educator. The Applicant is one of his English teachers in his department. Since they started the relationship was not good. A lot of problems were encountered like non-co-operation, insubordination, not attending staff meetings, not doing her work as required. He addressed concerns and highlighted transgressions from his level up to the Deputy Principal as he had to have a 3rd person when dealing with her issues. From 2020 their relationship deteriorated to the extent that there was no communication between them. In 2020 when the Applicant was required to submit her scripts to Mr Mkaza for moderation, the Applicant decided to go to school and threw her scripts at Mr Mkaza’s table and left. Shocked, Mr Mkaza went out to her and told her not to give him the scripts. At the time they were not aware how covid-19 spreads on paper. He told the Applicant to take scripts to the staffroom, to which she replied that he is a stupid and useless HOD.

21. The Applicant returned to his office and asked for her pen and told him she forgot Mr Mkaza is the one with psychological issues. The scripts referred to were assessment scripts for classes. They took a decision in a previous meeting that teachers are not to pass scripts to HOD but must keep them as no one knew about the spread of covid-19. Such scripts were to be brought to him for moderation

22. Mr Mkaza testified that the Applicant was provoking him to ensure that her commentary leads to a physical fight. Mr Mkaza reported to the Principal who was busy invigilating. The Applicant went around about people who had no qualifications and psychological issues. Later on the day the Applicant came with 2 police officers to serve him with a protection order accusing Mr Mkaza of saying she is stupid. He advised them to see him on the following Tuesday. He went to get a protection order. In 2021 they had a series of appearances in court until the matter was resolved. He then asked teachers to keep scripts in one big room called Enyangeni for their safety.

23. He did not moderate the scripts and they were taken by the Principal. He moderated later on advice of the Principal. The Applicant, when speaking to him, had a tone of voice and bad attitude of yelling and shouting. Colleagues were concerned and that it was her usual behaviour even in meetings. She would interrupt departmental meetings and cause disruption. She would question issues and take meetings back to issues already discussed in her absence. If one is not in a meeting, they’re required to ask for the minute book and the Applicant never asked for the said book. He received a letter from the Applicant dated 26 July 2019 in which she requested the minute book for minutes of a meeting he had with the Applicant and 2 Deputies. The letter also spoke to an assessment that was not written by learners in June. The task of setting papers rests with the teachers as they are the ones who assess learners and that it was also a resolution of the school for teachers to set papers and he would give a deadline for moderation. When he went through papers he noted that the Applicant did not include certain tasks. Mr Mkaza reported the issue of the Applicant not setting the paper to Mrs Mququ. At the time the Applicant did Grade 9 only and she knew she had to set the paper.

24. Mr Mkaza then asked the deputies to inform the Applicant to include the components of the papers and fill it in as an assessment and proposed changes to her paper and was met with a blatant refusal from the Applicant. They then submitted the papers as is and in 2018/2019 the Applicant did 2 classes of Grades 8, 9, 10 and 11.

25. In 2021 Mr Mkaza stated that he allocated the Applicant Grade 9A and 9B and such allocation was approved by the Principal. The Applicant refused her allocation. On 3 February 2021 Mr Mkaza wrote a notification to colleagues and asked Mr Keswa to circulate the meeting notification. The Applicant refused to sign the notice. The Applicant took a photo of the notification, recorded a video and did not attend the meeting. The meeting was a plenary meeting for the issue of revised Annual Teaching Plans (ATPs). Not all teachers attended but Ms Mququ had other administrative issues to deal with, but the Applicant did not acknowledge receipt.

26. The Applicant’s material was put in the Deputy Principal’s office and the Applicant signed the notification book that she received the teaching material on 12 February 2021. Other teachers received theirs on the day of the meeting. The materials contain ATP which breaks down the curriculum, programme of assessment, preparation book, learner inventory book, attendance register, and teacher’s signature. Her late receipt of teaching material meant that there could be no teaching and learning going on. A teacher must give reasons why s/he does not have a preparation book and means there is no facilitation of teaching and learning for that Grade. Learner inventory records book numbers issued to learners at the beginning of the year and if she only received it on the 12th it meant that no books were issued as the books must be issued prior to learning.

27. With regard to a complaint lodged by the Applicant in which she alleged that Mr Mkaza makes her work difficult by always providing information to her late, Mr Mkaza testified that the Applicant submits as and when she does and is usually the last one to submit and expects her work to be prioritised. She would come with a recorder and record him when she submits her scripts and give Mr Mkaza a deadline and does the same thing with the deputies. Mr Mkaza applies a first come first serve approach with submissions.

28. Mr Mkaza stated that the relationship between him and the Applicant deteriorated to unexplainable levels especially after 2021 when the Applicant served him with a protection order. It is not common for colleagues to work with protection orders against one another. There was no interaction between them as he also requested a protection order against her. The reality is that he is not her HOD. After allocating the Applicant Grade 9 and Grade 11 in 2020 she never went to class, never collected material to be used for Grade 9 and only took Grade 11.

29. The effect was that Grade 9A and 9B were left unattended and he asked one of the EAs to take over the Applicant’s Grade 9 classes, a proposal he first made to the Principal and the deputies. They had a briefing by the Principal regarding an altercation between the Applicant, the Principal and Mr Tiyo in front of the Deputy Principal. The Principal told them that the Applicant interrupted Mr Tiyo’s class. He felt that it was not his place to deal with the issues as it was already in the hands of his superiors. Not having a teacher in class is a disservice to the learners, causes a content gap and as the years progress the learners will feel the gap in senior grades. He stated that it is unacceptable for a teacher not to teach whilst in the employ of the Department of Education.

30. The 4th witness Mr Dumisani Nompunga (Mr Nompunga) testified that he is the 1st Deputy Principal for the school whose duties are to manage the curriculum and welfare of learners. The Applicant was his colleague in the school when he started in 2017 and manages the Technical side (Mathematics & Science) on both sides (GET & FET). He worked with the Applicant but had no close relations with her and the Applicant would normally report problems to him. The Applicant had a court order with the HOD when they shouted at each other during exam time. He could hear the noise but was not physically there. The following day Mr Mkaza came with a court order and the problems escalated from then.

31. Mrs Mququ had a meeting with the District Director and it was agreed that Mrs Mququ must take over supervision of the Applicant given that she was not on speaking terms with Mr Mkaza. When the Applicant submitted her work to Mrs Mququ she would request her to sign for receipt or record what they were saying. Mrs Mququ then said she would not work with the Applicant.

32. Mr Nompunga was asked to step in and did the communication and they parted ways when the Applicant wanted to record him or want him to sign for work that he had to hand over to Mrs Mququ or Mr Mkhaza. The Applicant would approach him with a phone and tell him that she is recording so she could use the information someday. The Applicant turned to Mrs Dency and when the Applicant came to him he would leave the office and be quiet. Mr Nompunga’s HOD spoke to the Applicant and he stopped talking to her.

33. After Mrs Mququ’s intervention they approached the District office to report the Applicant, at the time the Applicant did not attend staff meetings and was not managed at the time. He worked with her out of Ubuntu. With regards to class allocations they, as a school, did their tentative allocation before the end of the year, although they would not know what the enrolments would be like in January. Allocation is the duty of the Principal but he delegated HODs who would send to Deputies and from them to the Principal for approval. The 2021 allocation was approved and the Applicant was allocated Grades 9 and 11.

34. The Applicant only taught Grade 11 and was waiting for an answer from the Principal as she wanted to teach Grade 12. The Principal did not approve because she was not teaching Grade 11 and wanted learners in Grade 12. The other reason was that she would not be manageable as she had to work closely with the HOD and they were not talking to each other as well as the Deputy, the challenge was who would moderate her.

35. He heard when the District Director visited the school in 2020 that the Applicant worked at Walter Sisulu University (WSU) as well. They were looking for her disclosure letter and the feedback from the department was that the Applicant never disclosed. As a Deputy he is also aware of Mr Tiyo who joined the school during covid-19 and was allocated classes to teach English. Their (Tiyo and others) contracts expired and Tiyo was given the Applicant’s class. When the contract ended the Applicant should have gone back to her class. When Mr Tiyo left, the Applicant did not return to class.

36. The matter was taken to the SGB for Mr Tiyo to continue and the Applicant was still waiting for her request to teach Grade 12. There was no agreement that she would not go to class until she received a response. She was supposed to teach Grade 9. Tiyo joined as EA and when things returned to normal, the Applicant refused and was consulted by the Principal in Mr Nompunga and Mrs Mququ’s presence. The Applicant alleged that she and the Principal had a verbal agreement that the Applicant would teach Grade 12 but the Principal disputed, saying that he allocated her 2 grades and knew nothing about a verbal agreement and stuck to the allocation.

37. They decided, as Deputies, proposed to the Principal, who would then take it to the SGB because it would have financial implications. After the SGB met Tiyo and others started the following Monday. It was 1st term and Tiyo taught Grade 9 until 18 May 2021 or a day before but taught with no disturbance before.

38. The Friday before 18 May 2021 the Principal approached him and Mrs Mququ that the Applicant wanted to be given back the classes and the Principal requested a letter from her. When Mr Nompunga returned from a meeting in Trinset he was told by the Principal and Mr Mququ that the Applicant was found by Mr Tiyo teaching in his class. They told him that the Principal told her to go to the office but she was in class for the whole period. When the Applicant was called into the office he told the Principal that she was going back to class and would attend them thereafter. Mr Tiyo was disturbed in the period before break.

39. Mr Tiyo asked if he can go back to class and they followed the Applicant and found her on the steps and she went to the class. On arrival, Mr Tiyo was teaching and the Applicant entered the class and asked learners to take out books. Mr Tiyo continued to read and the Applicant said Mr Tiyo was only a boy, not a teacher and was teaching old style and continued to insult him. The Applicant was then questioned by the Principal and she was loud. The Principal hit a desk and asked the Applicant to shshs and the class was quiet. The Applicant went on to accuse the Principal of being a bully who thinks that the school is his farm and that Mr Nompunga is his puppet. He begged the Principal not to get close to the Applicant. The Applicant pushed the Principal and he fell. One of the learners collapsed and Mr Nompunga asked some learners to take the collapsed learner to the tap and other learners went out and were crying.

40. The Applicant took a video of everything and was laughing saying they will see each other. The SMT met after the incident and decided to go to the District Office to report the following day. The Applicant took her car and left. They indeed visited the District Office and met the District Director and the Circuit Manager who said they would visit the school. On their arrival at the school, there was toyitoyi by the parents who had placards written it is not Ngibe’s (the Principal) farm. The Circuit Manager and his team arrived at the school and asked parents to elect representatives to her meeting at the school. The meeting sat and the parents spoke of other issues and not about the incident.

41. They said the Principal assaulted the Applicant, they brought up the election of the SGB and the Applicant went to the police and laid charges against the Principal. A court order was issued and brought to the Principal to the effect that he must not come close to the Applicant. After all this the Applicant still did not teach Grade 9 and Mr Tiyo did. The SMT never engaged the Applicant and Mr Tiyo to clarify who should be in class and who should not and the Applicant had court orders which the Principal felt that should he call her he would be in violation of such court orders.

42. It became common in the school for teachers to have court orders against another but they all had the Applicant at the centre. The first was with Ms Ngwadla, then Mr Nkala, Mr Mkaza and numerous with the Principal. The issue of court orders was reported to Mrs Dyodo, the then District Director who came to try and resolve issues. She asked to take the Applicant off the school and place her in another school but she refused. Mrs Dyodo retired whilst trying to resolve the issue. There has never been an Educator who would not teach his/her allocated class.

43. The 5th witness of the Respondent was Mr Ntsikelelo Ngibe (Mr Ngibe), the Principal of Mthatha Technical College (the school) from 2018. He testified that his role was that of an Administrator, Supervisor, looking after the school and college activities. The school specialises in technical subjects with a boarding school.

44. Mr Ngibe testified that the Applicant taught at the school from about 2014 to September 2021. The Applicant was allocated 2 classes, Grade 9 and Grade 11 because from 2020 she taught Grade 8 to Grade 10 and he decided to take her to Grade 11. The Applicant did not complain to him about allocation but the Deputy (Mrs Mququ) came to him and told him that the Applicant was not teaching the grades. Mr Ngibe called the Applicant,wanting to know the reason. The Applicant said she was not allocated Grade 12. Mr Ngibe testified that he pleaded with the Applicant to teach Grade 9 and promised her that if she behaves in a normal fashion she would go to Grade 12 for 2022. It was a discussion over the phone and the Applicant did not go to the class as promised.

45. In 2021 the Applicant moved from Grade 8 to Grade 9 and from Grade 10 to Grade 11, She would move to Grade 12 if she did things right. In terms of the behaviour referred to Mr Ngibe said he meant non-attendance which was a key problem, not going to school - submitting leave forms, family problems and many other reasons. The Applicant promised to catch up with extra classes and never did so.

46. The Applicant was allocated to teach Grade 9A, 9B and Grade 11. The SMT looked at EAs to assist with Grade 9 and the school had no funds to employ more and employed 3 including Mr Tiyo who took Grade 9. In this regard, the SMT engaged the Executive of the SGB and got a go-ahead. The Applicant approached Mr Ngibe raising her unhappiness with Mr Tiyo’s teaching and he told the Applicant to put what she said in writing and present to him the following Monday. On Monday the Applicant said she could not write the letter because of loadshedding, although this was a surprise as she used to submit handwritten letters.

47. Before he could receive the letter he heard about 12h00 from Mrs Mququ and Mr Tiyo that the Applicant was teaching the class. He went with Mrs Mququ to the class and asked the Applicant to go to the office. She said she was busy. Some of the SMT members had to leave for various reasons after an hour waiting and the Applicant came and said she had a class. Mr Ngibe told her he hopes it is not 9B and the Applicant told him it exactly is 9B and banged the door. Mr Nompunga pleaded with the Applicant not to disturb Mr Tiyo. In the class Mr Ngibe took the Applicant’s stuff (dusters and books) and told her it was Mr Tiyo’s class.

48. After he listened to all the insults the Applicant hailed at Mr Tiyo, he moved to the Applicant and when he got closer, the Applicant pushed him and he pushed her back. It was chaotic and learners were crying and the Applicant was shouting, taking videos and photos. He had to calm down the learners and clarify the confusion. The Applicant drove out without telling anyone. He also called the SMT and explained what was happening. It was agreed that the SMT would contact the Circuit Office the following day.

49. Mr Ngibe testified that he used the Executive of the SGB. The decision was taken by the then District Director, Mrs Dyodo who decided that the SGB Executive must take care of the school without the Applicant and other members of the SGB until the end of the term. The reason is that the Applicant was elected into the teacher component of the SGB and in all meetings she would ensure that the SGB meetings did not progress. Ms Makrwede, the current District Director, took the same decision that the Executive of the SGB continue to operate the school. That is why the SGB had no meetings, it was the District Director’s instructions. No teachers in the Executive since they were not members of the Executive.

50. The matter of the Applicant was with unions, SGB and the District Office and he needed proof to produce to all the stakeholders. When they got to class with Mrs Mququ the Applicant was teaching and Mr Tiyo was out crying. The Applicant reported to the police saying that Mr Ngibe hit her with a fist and that she was not feeling well. The matter continued in court thereafter. Mr Ngibe was interdicted by the Applicant on many issues but that was not a new issue as she also had an interdict against Ms Ngwadla. On the statement by a learner that he hit the Applicant, Mr Ngibe said he was not prepared for that.

51. There was also a story that the Applicant threatened a learner named Chulumanco that stayed in a residence next to the school, through going to her room with a gentleman in military uniform and forced her to write a statement that the Applicant edited. The matron brought the learner to the school. They called the learner’s parents who wanted to see the Applicant. Another parent also approached the school because the Applicant convinced the parent to go to court and the learner was under age. The Applicant manipulated learners that had already left the school.

52. The Applicant is the source of what was happening at the school and had she written the letter he requested from her he would have taken the matter to the SGB. The Applicant, according to Mr Ngibe defied Mr Mkaza, her HOD, Mrs Mququ the Deputy until she could not continue with the Applicant as she could not tolerate photos of herself being taken by the Applicant. The Applicant is not a person who submits to authority. Mrs Dyodo confirmed that she is not on good terms with anyone and resolved that the Applicant must work from her office until she decides where to place her. The Applicant defied that instruction.

53. The Applicant wrote to the Speaker of Parliament and the SG as well as the District Director lodging complaints. The school was visited by Mr Solwandle, a representative from South African Council for Educators (SACE) to investigate a complaint, the Applicant degraded him. Mr Mhlongo who is a representative from NAPTOSA spoke to the Applicant and was told by Mr Ngibe that the Applicant does not comply with class allocation. Mr Mhlongo also failed as the Applicant takes no-one’s instructions.

54. Not going to class is the Applicant’s common thing to do. She also had no supervisor and decided to report to Mrs Dency, the HOD for Maths and Science. Mrs Dency would forward messages to them and at some point also said she is done communicating with the Applicant. She did as she pleases and Mr Ngibe informed the department and was told the matter has been sent to Labour Relations and they were later called to be witnesses in the disciplinary hearing.

55. With regard to the Applicant having work outside the school, they, as a school had a serious problem with her doing work outside the school because she was not attending school. The school found out that the Applicant was doing work at WSU and Mr Ngibe does not know if she was using school time. He wrote to the Applicant a letter trying to find out why she can't be charged for not disclosing. She responded and said she was using her own time and had disclosed it to the department. She presented no document to that effect.

56. The process of disclosures is that one must apply to the Superintendent General through the District Director, a process that Mr Ngibe followed to disclose his taxi business and informed the Principal that he does not utilise school time. Mr Ngibe stated that he advised the Applicant to get approval, having engaged her to confirm if she taught at WSU, which confirmation was received. Mr Ngibe also told other staff members in a staff meeting. He had a staff member who was involved in private electrical work who applied.

57. Mr Ngibe stated that it is not fair for the school to pay SGB teachers when there is a paid teacher as that strains SGB coffers and is unfair to the department and the school. In essence the school pays for someone to offer tuition to learners while the department is paying for Applicant’s services. The Applicant was the only one to have a workload of 2 classes because when done with Grade 11 she would leave. All teachers have 4 to 5 classes and she would boast about it and saw nothing wrong. Mr Ngibe said he was shocked when the Applicant said he was not happy that Mr Tiyo taught Grade 9. He suspected that she may have been advised by her union, NAPTOSA.

58. Mr Ngibe said that he could not ask the reasons for not bringing the letter because of the crisis that started all over with parents marching saying he (Mr Ngibe) beat a lady. They explained to the parents what occurred and they left whilst the Applicant reported to the police and approached the court. The court case was dismissed for lack of evidence.

59. The Applicant had an altercation with Ms Ngwadla over a pen and the Applicant took her car and tried to run over Ms Ngwadla but missed her. Ms Ngwadla approached the court for an interdict and won as the Applicant was interdicted for 5 years. The Applicant further shouted at Mr Mkaza in front of people in the administration block saying he did not take his ARVs, embarrassing him. Mr Mkaza went for an interdict and the Applicant did likewise. Mr Ngibe is the third victim of being interdicted. The Applicant further took Mr Nkala to court over scripts that he took.

60. The Applicant further took on Mr Mpiyonke when the Applicant brought her faulty kettle and microwave. Mr Mipyonke used the appliances as practical work for his students and the Applicant demanded new appliances from him. Mr Mpiyonke was in tears having to buy new appliances for the Applicant. Mr Ngibe stated that no one wanted to talk to the Applicant, the teachers, SGB and the District Office.

61. Ms Fundiswa Makrwede, the Respondent’s 6th witness testified that she is the District Director and started dealing with the school from 2009 and at that point operations were like any other school. The tough issue was when she had to deal with the Applicant who was redeployed from another school. There was an issue of reports, problems with the Applicant, insubordination and that the SGB could not operate because the Applicant argued with the Principal. Two other teachers resigned from the SGB and that affected operations of the SGB and management. Ms Makrwede engaged on those issues. She played a managerial role, even before her time, the Applicant was called on numerous times to Ms Dyodo’s office.

62. Ms Dyodo decided to transfer the Applicant and asked her union because teaching and learning was affected. The Applicant refused and was adamant that she wanted to stay at Mthatha Technical College. The Applicant does not want to take instructions and this was confirmed by the previous Circuit Manager confirming that the Applicant is a difficult person. They had serious issues at school. She also had a lot of interactions with the Applicant and would listen when one talks and one would believe she would change but later receive calls about her. For example there was an issue with the Electrical Engineering teacher who was hysterical as the Applicant asked him to use her appliances for a practical but later demanded new ones.

63. In their interactions they never put the Applicant to acknowledge fault on her part. At times issues never got discussed because after opening remarks there would be an argument. Issues could be decided but after a long argument to the point that the meeting will not take place. The reports issue has evidence and she admitted fault on the issue. The reason the District did not charge her for misconduct was to give her the benefit of the doubt hoping she would change. They also capacitate managers to manage conflict and take too long to get into the process of discipline and making one account for what she did. As managers they manage even where there is a crisis.

64. Ms Dyodo also interacted with the Applicant and suggested that she be taken out of the school and was called with that suggestion but the Applicant blatantly refused because she did not know what she did whilst they as the department could see it. The Applicant felt that she was the victim and she further saw the option of a transfer as victimisation to her. The union returned to the district office and said the Applicant could not agree.

65. In terms of the process leading to the Applicant’s charges, the Principal sent a written report to the Circuit Manager regarding the manner in which the Applicant took back her class which she left. She was insubordinate to the Principal and not affording the learners their right to learn. As per the report the Applicant told the Principal that she wanted to take her class back and was told to reduce that into writing. The Principal waited for the letter and whilst waiting he heard that the Applicant barged into her class.

66. At the last meeting all parties agreed to work together and they instructed the Principal to try and resolve the issues but he was too frustrated. There was continuous turmoil in the school. One of the strategies they applied was to ask the SGB Chairperson to lead and there came a court interdict for the Principal. She then decided to ask the Executive to run the SGB as it was not sitting and that the Principal as Accounting Officer to be part of the Executive. They further engaged the Legal Services unit to speak to the Applicant’s lawyers because there was a court interdict against the Principal, her HOD and they had to devise a plan to have her supervised by the Deputy. They were concerned that the parties were in the same structure and the interdict had to be removed but it was not. They had to take an abnormal decision regarding the functioning of the SGB although it must operate in full complement.

67. PAM and SACE regulate how a teacher must conduct themselves, one of which is to take instructions. There are levels of reporting standard operating procedures and a hierarchy. Looking at all the incidents, the integrity of the profession was undermined by the Applicant.

68. The Respondent’s 7th witness, Mrs Noma Mququ (Mrs Mququ) testified that she is the Deputy Principal of the school from 2018 and has been with the school since 2003. She explained her duties to perform the Principal’s duties in his absence, monitor the school, manage admissions, parents meetings, curriculum head to ensure teachers are catered for and they go to class. She also looks after the development and welfare of teachers. She worked together with the Applicant as she became Departmental Head of Languages and Life Orientation.

69. She explained the procedure for allocations in which the Principal asks the HODs to do a pre-allocation which are given to her to vet and take to the Principal who makes his changes and calls HODs. Allocations are done in December. For 2021 they did them in December and learners would come to school in February. The Applicant was allocated English and the HOD called a meeting for 3 February and circulated the invitation for teachers to sign. The Applicant’s name was there but she refused to sign and said she had a deal with the Principal to teach Grade 12. They do not know if she was aware of the allocation. The meeting continued and had to wait and see what happens with the Applicant. The process is that when one missed a meeting they would consult the minute book to get to know decisions that were taken. The book is kept by the HOD.

70. The Applicant became aware of which classes she would teach because the HOD put bundles of teaching material in batches for teachers to collect. The Applicant did not collect. The material was given to Mrs Mququ and the Applicant did not come to her office to get the material. Mrs Mququ called the Applicant a week after the meeting to come collect her material from HOD and only took material for Grade 11. She had already told Mr Mkaza she had a deal for Grade 12. The Applicant was allocated Grade 9A and 9B all the classes were allocated by Ms Mkaza and Mrs Mququ.

71. Distribution of teaching material is done in the meeting and if one is not present it is their duty to go to the HOD to get the minute book, read minutes and get what one should get. If one refuses to take material the HOD must compile a report on what transpired. The HOD came to Mrs Mququ and told her that the Applicant refused and said she had a deal. Mrs Mququ wrote to the Principal and repeated what Mr Mkaza said.

72. Mrs Mququ wrote to the Principal to be released from supervising the Applicant citing challenges of being ordered around to conform to the Applicant’s submission style of making recordings and signing acknowledgement of receipt. When these incidents happened she did not consent to being recorded. That is not how they worked. After this letter no one took over supervision of the Applicant, her immediate supervisor could not, Mrs Mququ could not and the Principal could not.

73. There were a number of issues regarding the Applicant’s work, at some point she took over from another who had left learners with work the Applicant refused to mark such work and asked why did the teacher not do her work. She did not give her marking record to Mrs Appolis, a new HOD. Mrs Mququ then decided to note down everything the Applicant did that did not sit well with her. They did not go to SBM moderations allocated for March and June. Mrs Mququ asked the Applicant to compile her files for moderations. The Applicant sent an apology that she would be late and her files were not taken to moderation. At some point the Applicant tampered with marks and the school was called to account and learners could not get reports for that term.

74. Nothing happened to the Applicant and the matter was reported to the department, they said it was a first offence she must be given a second chance. The reports were issued later. The Applicant was allocated number 11 and she taught Grade 11T2 and Grade 11T3. She never taught the Grade 9 classes allocated to her and a report was made to the Principal.

75. With regards to the Tiyo incident, Mrs Mququ was told by Mr Mkaza that there was an altercation between the two in the carpark. The Applicant asked Tiyo what he was teaching, how he came, what he knew and Mr Tiyo was offended. Mrs Mququ went to report to the Principal and whilst there Mr Tiyo came in to report that the Applicant is in the class where he taught whilst Tiyo was teaching. The Principal said he could not be alone when addressing the Applicant. They knocked in the class and asked the Applicant to speak to them. She took 10 minutes to come out and on advice by the Principal regarding Tiyo’s response the Applicant said she would come to them later and went back to class to teach. They waited for an hour and Mrs Mququ had to leave for a class. It is said that she came at the end of the period and said that the Principal must make it snappy as she had another class, which was another Grade 9 class.

76. The Principal came and discussed the matter with the SMT and it was the first time they experienced such behaviour. The matter was then reported to the department. From the Principal’s explanation he said that the Applicant came to him and told him she wanted to take over her class. The Principal asked to write down her decision because the department was aware of her not teaching Grade 9 and that another person took over the class.

77. As SMT they took a decision to employ Mr Tiyo as he was employed by the department and his contract would expire in March but was extended up to the end of April. As SMT they decided to call him back to assist learners for June examinations. They had to talk to the SGB as they had no right to pay someone. The Principal consulted the SGB and employment of 3 SGB teachers was approved. That is how Tiyo got to teach Grade 9.

78. The 7th witness of the Respondent was the SGB Chairperson, Mr Justice Madoda Hlophe (Mr Hlophe) who testified that as SGB their functions were to ensure the learners got quality education and to ensure the school and property is safe, by ensuring there is enough teachers and they go to class, there is enough books etc. He worked with the Applicant in the SGB and she was part of the teacher component and was the SGB Secretary. They worked and he noticed soon that there was disrespect of the Principal and Chairperson by the Applicant, at the time the Principal was new. He also noted disrespect in the meetings to a point they had to take learners out.

79. The Applicant also applied for the Principal’s post but was not shortlisted and that is where problems started in the school. There was unrest and the then chairperson was taken out but remained a member of the SGB. The Applicant disturbed all meetings until the District Office was approached and intervened and resolved to take the Applicant out of the school and report in the office. The Applicant refused and teachers were asked to elect another member. The reason for removing the Applicant was because she did not properly record meetings as they realised that minutes were not the true reflection of the deliberations. There were squabbles amongst the teachers about her. The Applicant was sent to a hearing with the department and SGB regarding her non-appointment.

80. As a result of the squabbles there were court orders that required her not to be in the same space as other teachers and the Principal. They approached the department again and the decision was for the SGB to proceed without the teacher component and Principal to remain as ex officio member and the Applicant left the SGB. There was still no stability. The Principal reported that the Applicant does not go to class and that she is employed at WSU during covid-19. The department employed EAs and it could be recognised that the Applicant was not teaching. He then asked the Principal on what the HODs were doing with this matter. It happened that he also had a court order not to come close to the Applicant. Mr Hlophe wondered how she got to school with such a character.

81. As SGB they wrote to SACE to request their intervention. They did their part but did not succeed. They noticed that at times she would sit in her car and not come to school. Monitoring her attendance was the Principal’s duty. Mr Hlophe was called by the Principal about the Applicant removing Tiyo from class. At that stage the SGB paid Tiyo after the department stopped paying EAs because learners had no teachers. The squabble between the Applicant and Tiyo is the reason for this arbitration.

82. They entered into an agreement with Tiyo on the purpose of the appointment, duration, remuneration, and if agreed they would draft a contract and have it signed by the SGB Chairperson. Mr Hlophe testified that he did not recall which classes Tiyo taught but that it was the Applicants’ classes. With regards to reprimanding the Applicant, it was the Principal’s duty to do so and could not as SGB. They heard the issue of the altercation between the Applicant and Tiyo.

Applicant’s Version

83. The Applicant’s version was led through the Applicant's own testimony, 2 witnesses and a bundle of documents, summarised below:

84. Ms Thandi Lovey Mpitshane (the Applicant) testified that she commenced working for the Respondent in 1992 and worked at various schools until she was transferred to Mthatha Technical College wherein she worked until dismissal on 25 August 2022. She taught English,Biblical Studies and History. She also was a member of the SGB in all 3 schools she worked in was in Sport and Entertainment, was a member of the covid-19 committee and member of the Finance & Procurement Committee. She interacted well with colleagues and learners, worked with minimal challenges as she understood different styles of approaching issues.

85. She was elected as a member of the SGB for the teacher component and attended a capacity building workshop on SGB duties, roles and responsibilities. In the workshop they were taught that the chairperson of the SGB meets the Principal and they compile a proposed agenda, the secretary will invite the members and give the date, time, venue and proposed agenda. In the school things were done differently as the Principal would invite them verbally and when the agenda is forwarded the chairperson would allow members to amend the agenda and not allow the teachers. He would take the proposed agenda as final, leading to arguments in meetings to the extent that he would postpone meetings and some would flow smoothly.

86. As a member of the Finance Committee (FINCO) the school budget was not approved in 2020 for the academic year 2021. The Treasurer was supposed to unpack the budget and the FINCO had no input on the budget, it was done by the Treasurer from his home. They would not have the final budget. Parents wanted the Treasurer present and that is where there was an altercation. The Principal wanted to present it himself and took the file and marched out of the meeting. There was no approval by the SGB and that was the end of the matter. The employees were employed but not budgeted for.

87. The Principal was suspended due to mismanagement of funds at the time the Applicant was part of the SGB. She thought that they may be called to account, looking at the instability and decided to report to the office of the Speaker: Eastern Cape Legislature through a letter dated 27 August 2018. Another letter reminding the Speaker was set on 10 August 2021, in which she was reminding them of the long overdue whistleblowing report and further reporting the ‘assault’ by the Principal on 18 May 2021. She asked for intervention and a forensic investigation into the school’s finances. The Principal was charged and his sanction was suspension without pay for 1 month. The Applicant was therefore the whistleblower and became the employer’s witness in the disciplinary hearing of the Principal, Mr Ngibe.

88. With regards to the issue of reports, Mr Mkaza did not collect the question paper that had to be written from the department. If the Applicant was at school she would be moderating as Mrs Ndlovu had her files ready for moderation. There was no correspondence sent to her as she was never unavailable for moderations. The Applicant testified that she worked smoothly with the previous Principal, Mr Dinga, who never called her to his office.

89. With regards to leaving work early, the Applicant stated that if she had to leave early she always sought permission. For absence she would report to the Principal or the Deputy. The Applicant read an application for a protection order in which the Applicant is Mr Mkaza, on the following terms:
a. “I do not want to talk to her in any form or kind;
b. I don't want to cross paths with her or any similar interaction;
c. She shouldn’t intimidate or threaten me or mock or tease me in any kind or form.

90. The Applicant testified that she never intimidated or threatened Mr Mkaza as there was no need to do that. The document shocked the Applicant to the extent of being scared to go to school but went as Mr Mkaza did not own the school. She did not do any order against the Principal because she knew that she had to work. The order did not state that the Principal must not go where the Applicant was or cross paths with each other.

91. The charge sheet is stamped 24 May 2021 and the hearing date was 1 June 2021. The date on the 1st charge refers to an incident of January 2021. The 2nd charge makes reference to allocation in January 2021 and same in the 3rd charge. It means she was meant to teach learners during the holiday and while she was on holiday. The notice is dated 24 May 2021. In terms of Schedule 2 of the Employment of Educators Act, only the HoD can charge an employee or to delegate the function to deal with misconduct. There is no delegation letter. It therefore means that the Applicant was charged by a person who had no delegation letter. In January 2021 it was not possible for the Applicant to refuse teaching as the Government Gazette was issued on 22 January 2021.

92. Mr Mkaza was the Applicant's supervisor and Mr Ngibe is the Manager. There was no preliminary investigation into the matter. There was no investigation by the department on the alleged incidents of 2018, 2019 and 2021. Ms Damane and Ms Makrwede visited the Applicant because they received a letter from the Principal that the SGB was chasing her out of the school in terms of a letter dated 8 January 2019 at page 13 of the Applicant’s bundle. The contents of the letter read:

“REMOVAL OF MS T. MPITSHANE
The SGB in its meeting yesterday has resolved that Ms T. Mpitshane should not be allocated since the District Office has recommended that she should report to the District Office or be suspended for a period of 90 days subject for the pending investigation”.

93. Mr Hlophe closed the gate when Ms Damane and Ms Makrwede came to the school. They told her that the Principal said she was not attending classes and the Applicant asked for proof and they could not produce. She was told to proceed to teach. With regards to teaching WSU students the Applicant stated that teaching time at the school was between 07h30 and 15h30. She never taught at WSU and the attendance register will prove that. The charge shows that she started from1 March 2018 - 31 December 2018 and in 2019. At the time the Applicant was a student at WSU and would be asked by the lecturer to assist and at times she would teach over weekends. During the week she would meet students between 17h00 and 19h00. She believes that as a teacher she cannot perform work or any other duty during working time.

94. Regarding submission of sick notes one gets one when one visits a doctor who would issue a medical certificate. One cannot do work, she would be at home. The Applicant denied submitting leave to go to teach at WSU. The Department of Sports would communicate coming sports activities to the Respondent and identify teachers who would participate and issue letters to managers. The Applicant’s letter was sent to Nompunga as Acting Principal.

95. On the meeting of the 3rd February 2021 the Applicant never received the notice of the Languages meeting she was not invited. Her name does not appear on the invite. The agenda was about the issuing of textbooks. She signed on 12 February 2021 for the teaching material. A learner was sent to call her to Ms Mququ’s office and the Applicant was given Grade 11 material for which she signed in the presence of Mrs Mququ. The Applicant thanked Mrs Mququ and returned to class.

96. With regards to the Tiyo issue the Applicant was humiliated by Mr Tiyo. The Applicant agrees with Mr Tiyo that indeed she was in class when Mr Tiyo arrived. The Applicant stated that she was approached by the Principal that he noticed poor performance in Mr Tiyo’s classes and asked the Applicant to assist. The Principal was concerned about Literature and the Applicant specialised in Literature.

97. On pushing the Principal the Applicant stated that as a woman she is in no position to push the Principal. It is the Principal that came and pushed her with fists to come out of the class and took her material. That is where the learners asked to go out and the Principal told the learners to all go out. The following day the parents must have been told by their children about her being pushed by the Principal in front of the learners.

98. The Applicant sent a letter on 5 June 2021 to the Labour section and reported the incident. There was no response. Regarding the disclosure of extraneous work the Applicant was advised by the former Principal, Mr Dinga, to inform the department and she informed Supply Chain in 2017, 2018 and 2019. At the time of submission there was a doubt whether she should be disclosing because the extraneous work was outside working hours.

99. The Applicant mentioned that there was disciplinary action taken against the Principal (Mr Ngibe) involving failure to account for R495 000. The Principal was also involved in a taxi business. The school used his taxis for transportation and there was no protocol observed, at some point he took 5 people to Durban and charged for a full taxi. The Applicant was also a member of the procurement committee, SGB member and served in curriculum based committees. They also looked after the hostel, supervised the school vehicle and looked after the 4 workshops of the school. The Standard Bank account had no records for fuel of the school vehicle and that may mean some monies were deposited into the Principal’s bank account.

100. The expenditure regarding the vehicle did not appear in the school account held by Standard Bank. they were of the understanding that the school had 1 bank account. On the 18th May she indeed left the school as she was emotionally disturbed. She then applied for a protection order against the Principal, something that never happened before 18 May 2021. The Applicant conducted some research on Gender Based Violence (GBV) and decided to seek protection of the law when she was pushed out of the class with fists by the manager who is supposed to resolve the issues without violence. The Principal was a person who carried a gun to school, when learners went on strike he fired a shot with live ammunition. There was no positive response from the SMT and she decided to get a final order from the magistrate.

101. Regarding the school’s newly elected SGB, there were 2 colleagues of the Applicant who were elected who had no issues but were not invited to the meetings. The Applicant reported at school on 19,20, 21 May 2021. There was a record that the Applicant tendered an apology in an SGB meeting of 21 May stating that she was on leave while she was at school. The school did not follow the guidelines of the department and were trying to deal with issues professionally but got no positive outcome.

102. The SGB never had any meeting regarding the employment of Mr Tiyo. The school had a culture of employing people without the SGB, Mrs Mququ did that and the Chairperson then refused to pay for that person. As members of the teacher component of the SGB they were elected to give positive input on the governance of the school. When they gave input the Principal would be emotional and not implement what the teachers suggested or proposed. That created a pandemonium for example information that had to be shared in meetings would not be shared with them.

103. The Principal was told to use committees and did not do that and continued to misuse school funds. He could take R5000 from the school fund to celebrate his post and take people to fence the school when he was told the department would fence the school. He also transferred big amounts to the accounts of teachers who are close to him and asked them to withdraw. He saw the Applicant as radical whilst some of the things she did were to protect the Principal.

104. The 1st witness of the Applicant, Qhawekazi Mhlauli (Ms Mhlauli) testified that she was a learner at Mthatha Technical College from 2020 and is currently doing Grade 11 and is 18 years of age. She knows the Applicant as a Teacher in the school and taught her English in Grade 8. In 2021 in Grade 9B, Mr Tiyo was the English teacher. On 18 May 2021 the Applicant came to class in 9B and gave them classwork. Mr Tiyo came and spoke to the Applicant, a conversation she could not hear. MrTiyo left and came with the Principal and the Deputy. The Principal pushed the Applicant and she fell on a desk.

105. The Deputy Principal instructed the learners to close their books. The Principal thereafter asked them to do the work they were doing before the Applicant arrived. They continued with reading. The Deputy asked if they heard/understood Mr Tiyo’s reading they said Yes. Mr Tiyo continued and they left. The Applicant also left. Mr Tiyo remained. Mr Tiyo pointed at the Applicant and told her he will show her. Ms Mhlauli heard nothing else, other learners were crying and leaving class. It became chaotic. She confirmed that she did not see the Applicant pushing the Principal.

106. Ms Nozuko Ntomboxolo Myataza (Ms Myataza), the 2nd witness of the Applicant is an Educator at Mthatha Tech and is an isiXhosa teacher for Grades 9,10, 11, 12. She serves in the SGB, a member of the sports committee, was a member of the covid committee, health promotion committee and member of the hostel committee. She served in SGB from 2009 - 2011 and in 2020, 2021,2022. She also served from 2018 to 2021.

107. She stated that the Applicant never made SGB meetings deadlocked, but the Principal compiled the agenda alone and at commencement of meetings they would find that the Executive has no knowledge of the programme. As a teacher component they were not part of the Executive. They were trained on SGB duties. Ms Myataza testified that a meeting was held for the Languages department Mr Keswa circulated the invitation and she signed. Mrs Mququ’s name appears on the invitation but not on the attendance register. Nothing was said about her non-attendance.

108. Ms Myataza is aware that the Applicant is a part-time lecturer at WSU as she would after school rush there. Lectures start at 17h00. There was never a report about her leaving school for WSU. Mrs Dency also has a relationship with WSU and no disciplinary action was taken against her. With regards to the Principal’s disciplinary action she confirmed that she was one of the whistleblowers and was the employer’s witness in this disciplinary enquiry. The main charge faced by the Principal was mismanagement of funds after he could not account for an amount close to R500 000. The Principal was also involved in the taxi business. The Principal’s taxis were used for transport by the school, no service providers were used by the school.

109. The school also has workshops with equipment for Civil and Electrical Engineering, 6 of which are empty. The school rents them out to raise funds for the school and also in an attempt to avoid them being vandalised. Payment for rentals must be paid to the school’s account. In the bank statement provided from Standard Bank the witness could not identify any payment from any of the tenants of the school.

110. Ms Myataza attended the class allocation meeting in which they received their material,nothing was discussed about how the Applicant would be dealt with. The Applicant had a good relationship with learners and was the first teacher to introduce tennis as a sport in the school and her learners did very well.

111. Regarding the issue with Mr Tiyo, Ms Myataza became aware the following day when there was a protest by community members carrying placards entering the school. They protested against a man who beats women. The SMT left and went to the department. They said nothing to the SGB. The following day parents demanded a meeting with the SGB and they found out that the SGB was not aware and they also, as teachers, were not aware. They were told that the issue would be discussed with the Executive.

ANALYSIS OF EVIDENCE AND ARGUMENT

112. Section 185 of the LRA states that every employee has a right not to be unfairly dismissed and subjected to unfair labour practice, giving effect to section 23 of the Constitution of the Republic of South Africa.

113. Section 192 of the LRA provides as follows: In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal, per subsection 1. Subsection 2 states that if the existence of a dismissal is established, the employer must prove that the dismissal is fair.

114. Section 188 of the LRA provides as follows: -“1. A dismissal that is not automatically unfair, is unfair if the employer fails to prove _
(a)that the reason for the dismissal is a fair reason -
(i)related to the employee’s conduct or capacity; or
(ii) based on the employer’s operational requirements; and
(b) That the dismissal was effected in accordance with a fair procedure”.

115. In this matter, dismissal is common cause, I shall consider the fairness thereof with due regard to Schedule 8 of the LRA.

116. Schedule 8(7) of the LRA provides guidelines for dismissals for misconduct as follows: -
“Any person determining whether a dismissal for misconduct is unfair should consider -
(a) Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
(b) If a rule or standard was contravened, whether or not-
(i) The rule was a valid or reasonable rule or standard;
(ii) The employee was aware, or could reasonably be expected to have been aware of the rule or standard;
(iii) The rule or standard has been consistently applied by the employer; and
(iv) Dismissal was an appropriate sanction for the contravention of the rule or standard.

117. This matter deals with contraventions in terms of section 18(1)(a), 18(1)(i),18(1)(f) and 18(1)(m) of the Employment of Educators Act 76, of 1998 (the EEA), detailed as follows:-

a. Charge1: You contravened section 18(1)(a) of the EEA as amended in that you failed to comply with or contravenes this Act or any other statute, regulation or legal obligation relating to education and employment relationship, in that you refused to teach grade 9 allocated to you in January 2021 and neglected the learners until SGB decided to employ SGB Educator to teach those learners which poses strain to school finances.

b. Charge 2: You contravened section 18(1)(i) of the EEA as amended in that you failed to carry out a lawful order or routine instruction without just or reasonable cause or permission in that:
i. you refused to teach grade 9a & 9b which was allocated to you in January 2021 and the school end up employ SGB educator to teach those learners.
ii. You failed to provide the principal with a letter that explains yourself that you want to take over teaching Gr9a & Gr9b on the 17 May 2021 after a long time of neglecting those learners.
iii. You failed to leave the Gr9A class on 18 May 2021 when you were instructed by SMT to leave after you invaded the class disturbing English SGB teacher (Mr Tiyo), humiliating him in front of learners who was teaching as he was allocated by the SMT.

c. Charge 3: You contravened section 18(1)(f) of the EEA as amended in that you unjustifiably prejudiced the administration,discipline or efficiency of the school in that you deliberately invaded Gr9a and Gr9b and forced SGB teacher who was allocated to teach, to leave class humiliating him in front of learners and disturbed teaching on that day infringing the right to learn for Gr9 learners whom you neglected since January 2021.

d. Charge 4: You contravened section 18(1)(m) of the EEA as amended: without the written approval of the employer, performs work for compensation for another person or organisation, either during or outside working hours, in that whilst employed by the Department of Education stationed at Mthatha Technical College, you were employed as a tutor at WalterSisulu University during teaching time from 1 March 2018 - 31 December2018, and in 2019.

118. In respect of the first charge regarding the Applicants’ refusal to teach grade 9 evidence of the Respondent is that the Applicant indicated to Ms Ndema and Mrs Mququ that she had a deal with the Principal to teach Grade 12. In the meeting where teaching material was distributed, it is said that the Applicant refused to sign. There is no record on the document that there was a refusal to sign. The practice is to circulate the invitation to all teachers and get them to sign. Mr Ngibe denied that there was an agreement for 2021, but had one for the following year, dependent on the Applicant’s good conduct. Mrs Mququ said they did not know if the Applicant was aware of the allocation and her HOD told her nothing about the Applicant checking the minute book. She called the Applicant later in the week to collect her material. She did not ask her anything regarding her not taking the grade 9 material.

119. The Applicant’s evidence is that she was not invited to the meeting as no one sent the invite to her. As seen on the meeting invitation the Applicant did not sign. She also was not part of the meeting on 3 February 2021. The Applicant collected her teaching material from Mrs Mququ on 12 February 2021 and she signed for Grade 11 material. According to Mrs Mququ the Applicant left the Grade 9 material on her desk.

120. In considering the evidence of both parties in this regard, it seems nobody cared as Mrs Mququ said that the practice is if one missed a meeting one must get the minute book and familiarise him/herself of decisions taken. If one does not do that they would send a report to the Principal. The HOD told her the Applicant refused to sign. The HOD sent Mr Nkwala to circulate the invitation and Mr Nkwala is better placed to give the Applicant’s response. Mr Mkhaza’s evidence remains hearsay regarding the refusal to sign the meeting invitation. The Applicant simply stated that she was not invited and would not have been expected to know about the meeting. The allocation document was questioned by the Applicant as to not having a date stamp and the authors as it is the practice to issue a stamped document. The document may be tampered with as a result and it’s authenticity problematic.

121. The Applicant, argues that the meeting was held on 3 February and she therefore could not be expected to be in class in January as it was the covid era at the time as teaching started 15 February 2021. She denies that there was any allocation in December. The charge talks of a refusal by Applicant whilst the Applicant was under the impression that she would teach Grade 12, part of which is agreed by the Principal. There is no concrete evidence of the instruction in that the allocation presented bears no school stamp, which raises authenticity issues. Only oral evidence based on the questionable allocation document to teach Grade 9. It is further the evidence of the Respondent that they had EAs until 31 March 2021 and after expiry of the EA contracts Mr Tiyo and 2 others were called by the Principal to be SGB teachers and he was allocated classes, Grade 8B, 8C, 9A and 9B.

122. It is therefore not clear as to at what stage did she refuse to teach, if she had a deal with the Principal to teach Grade 12 and also clear that she also did not teach Grade 12. The Applicant further went to class on 18 May 2021 after having a discussion with the Principal. The HOD, Mr Mkaza did not care whether the Applicant received the material or not. Further the school took no action against the Applicant for neglecting class the 1st day of school. Such in my view was not a refusal as both parties can attest to certain discussions and agreements during the time between the Applicant and the Principal. However, the Applicant stated that she was intending to give the written undertaking to the Principal after classes due to loadshedding.

123. The Principal wrote to the CES: HRD & Labour, Mr Matoti on 29 March 2021 reporting that the Applicant refused to teach after being allocated classes in Grade 9A and 9B, refused to attend plenary meeting for GET phase organised by Ms Ndema-Ngxikana, refused to teach the class when addressed by Mrs Mququ. The Principal recommended that the department must charge the Applicant for professional misconduct. This correspondence is therefore testimony that the Principal requested the department to intervene by taking disciplinary action against the Applicant for the alleged refusal to teach Grade 9A and 9B.

124. It is clear that the Applicant was not on speaking terms with Mr Mkaza, he did in essence not supervise the Applicant. The Principal kept changing supervisors for the Applicant and failed to confront challenges presented to him. From the evidence presented the Respondent did not produce any record of disciplinary action taken against the Applicant, but raised a lot of issues that were meant to be dealt with through the disciplinary code and such issues happened years ago, and bear no relevance to the present enquiry. In terms of the formal and informal processes of discipline there is therefore no record in file for the historical events raised against the Applicant. There is no evidence of a refusal by the Applicant, in written form and the documents relied on regarding collection of ATPs indicate that the Applicant received material for Grade 11.

125. There is evidence that Mr Tiyo as an EA taught the classes, whether such arrangement was based on the so called refusal by Applicant or covid-19 arrangements that informed appointment of EAs I cannot be clear, especially when there is a letter by the Principal to the department requesting them to take disciplinary action against the Applicant. There was further evidence of the workload per educator from the Personnel Administrative Measures (PAM) document which clearly identifies the manner in which allocation of work had to be done and clearly in the case of the Applicant she had far less work than is required by PAM. There is further no written agreement between the Principal and the Applicant allowing her to teach Grade 12. It is therefore not sustainable that she would wait for Grade 12 whilst doing nothing.

126. Clearly something happened although there is no written record of a refusal by the Applicant on the allocation and the collection of ATPs register, because in my view it was an urgent matter to be dealt with from the 1st day of school that a teacher was not in class and any issues pertinent thereto had to be dealt with urgently. I must accept that the Applicant wanted to teach Grade 12 to which the Principal promised to give her the following year, as Mr Ngibe states that she was moved from Grade 8 to Grade 9 and from Grade 10 to Grade 11 for 2021, subject to her improved conduct. There is no explanation from the Applicant other than technically challenging her being required to be in class in January when classes started 15 February 2021. There is no evidence of the school, through her HOD, Deputy Principal and the Principal ensuring that she received her teaching material for Grade 9A & 9B as well as the allocation in that they did not record that she refused to collect on 12 February 2021, this is informed by the fact that none of the SMT members concerned cared if she was given the documentation that would inform her of the allocation.

127. They, by their own admission, did not want to work with the Applicant, they were not talking to her and Mr Mkaza had a protection order and had no record of dealing with work allocation to the Applicant. From what the Applicant received from Mrs Mququ, the acknowledgement of receipt is for Grade 11 teaching material and that the Applicant was not invited to the plenary meeting where all teachers received their material. She learned on the 12th when a learner was sent by Mrs Mququ to call her to her office and it is not clear why she would refuse to teach if she is at school. In the minutes of the plenary meeting, though, it is recorded that she is allocated Grade 9A and 9B, as to whether she saw that or not cannot be confirmed. It was stated by one of the witnesses that the rule is that if one does not attend a meeting they request the minute book to familiarise themselves with decisions taken. It is not clear why would the Applicant not receive the minute book that is made available for everyone to see.

128. The Applicant, in the pre-arb confirmed that her version is that there was no refusal but honest engagements with the Principal regarding the matter. The other issue to be raised is in so far as the relations in the school, but be that as it may, the Applicant had her own responsibility of ensuring that she fulfils her obligation to teach in terms of her own employment contract. I would believe that the honest engagements were regarding her teaching Grade 12, which could only take effect the following year. Other than that she had to be in Grade 9 as expected in terms of the allocation. I therefore find that the Applicant refused teaching Grade 9A and 9B as allocated to her, given the confirmation in the minutes and the evidence of the HoD, Mrs Ndema and Deputy Principal who she told she would teach Grade 12 and did not take the material for Grade 9.

129. With regard to Charge 2 having found a refusal to teach Grade 9 as per the first charge, it follows therefore that the Applicant was indeed instructed as per the subject allocation and that the reason that she would teach Grade 12 is not sustainable in that it is confirmed by the Principal that she could only teach Grade 12 the following year, subject to her improved conduct in respect of attendance, in particular as raised by the Principal. There is no valid reason for the Applicant not to teach Grade 9 and an SGB Educator was employed indeed to take over the classes. She therefore refused the instruction in this regard.

130. With regards to the failure to provide the Principal with a written document regarding taking over the classes in question, indeed as admitted by the Applicant such a letter was not done and the Applicant cited loadshedding as a reason and that she intended to submit the letter in a typed format. The essence is that she did not submit such a letter although she indicated that there was no time frame given for the submission of the letter but was instructed to be in class on the 18th. I therefore find that the Applicant, failed to follow a lawful instruction in that she failed to provide the Principal with the letter that she had to give to the Principal regarding her return to class but she returned to class without having written the letter but stating in the pre-arb minute that there were honest engagements in this regard.

131. With regards to the third leg of charge 2, many witnesses gave evidence regarding the incident with Mr Tiyo. It is common case that the Applicant had an agreement with the Principal to start teaching grade 9 and must give him a certain letter regarding her ‘return’ to Grade 9 English. The Applicant instead went to class and there was a commotion. There seems to have been some physical aspects of the Principal’s intervention. Mr Ngibe admitted to pushing the Applicant. Mr Ngibe testified that he was not prepared to deal with that issue in the arbitration as he said it in the hearing, under cross-examination. The Applicant’s version is that she is in no position to push Mr Ngibe because she is a woman. Mr Mhlauli confirmed that the Applicant was pushed by the Principal and fell on a desk. Other witnesses in this matter presented hearsay evidence which stands to be rejected. In this regard she could not fail to leave the class as such was physically facilitated by the Principal. The Applicant was pushed out of the class, a fact admitted by the Principal and confirmed by witnesses who were present, although it is not clear which class between 9A and 9B. The Applicant, in this regard was pushed out of the class violently so. She can therefore not be guilty of failing to leave class under the circumstances.

132. Regarding allocation it is not clear who is the author of the document although Mr Mkaza and Ms Ndema agreed that the allocation is often stamped and signed by the Principal, something that did not happen. The date stamp would also show the date in January when the allocations were done. The document presented in respect of subject/class allocation can easily be tampered with or just prepared for the arbitration especially when it is standard practice to have it stamped. There is therefore no clarity on the documents talking to subject allocation and further that the Applicant’s HOD did not speak to his subordinate and can never know if the Applicant collected her study material.

133. With regards to the 3rd charge the incident in Mr Tiyo’s class disrupted teaching and learning for Grade 9 classes in the manner it happened but the intervention by SMT added fuel to the fire when the Principal ended up pushing the Applicant. As alluded to above the issue of the Applicant going to Grade 9 on the day had specific conditions given by the Principal, which I found were not fulfilled by the Applicant resulted in disturbance of teaching for the day. The Applicant indeed committed the misconduct she was charged with in this regard.

134. What happened is that the Applicant indeed went to Tiyo’s class without fulfilling the Principal’s conditions by writing the required letter and with no regard for Mr Tiyo and continued to teach in his absence. Common courtesy dictates that she at least should have spoken to Mr Tiyo first. Indeed her barging into another teacher’s class was abrupt and would leave a bitter feeling on his colleague and possibly the learners would be shocked by the exchange of unpleasantries. The Applicant should have discussed with the Principal the date on which she would start so that he can prepare Mr Tiyo. It is common cause that the SGB employed Mr Tiyo, although the Applicant argued that no proper procedures were followed during Mr Tiyo’s appointment, an issue irrelevant for this case. The disturbance of the class on the day obviously disrupted teaching, as confirmed by the learner, Ms Mhlauli that learners got out of the class disturbed by the events.

135. In respect the Applicant neglecting the learners since January 2021, an EA was teaching the learners and later appointed by the SGB. It is not clear whether this charge seeks to deal with invasion of the class, the humiliation, disturbance of teaching of infringement of the learners right to learn. Having found that the Applicant invaded the class, the time when learners had to leave class, the Applicant went to class and started teaching until she was stopped by the SMT, I cannot find that for that specific day there was any infringement of such a right to learn, on the part of the Applicant.

136. The fourth charge addresses the Applicant’s extraneous employment with WSU. The Applicant did not deny doing work for WSU and stated that she disclosed through going to Ms Satsha in the department at Supply Chain, it seems she made it verbally, and she was told it does not affect the employer’s time. The Respondent did not bring Ms Satsha to refute the Applicant’s allegation. The Applicant indicated that she was a student at WSU and assisted lecturing and later had contract. There is therefore no clarity from both parties as to how the disclosure should be made, in the absence of confirmation by the department. Also on the part of the Applicant there is no written confirmation from the department to rebut the allegation by the Respondent, given the Public Service regulations that require an employee to have written permission and not to perform work during official working hours and not use official equipment of the state. The Applicant indeed performed work outside the department as admitted, although there is no written confirmation from the department, the Applicant alleges that she disclosed to Mrs Satsha at supply chain who indicated to her there is no need to disclose if the extraneous work is done outside working hours. I therefore do not find that the Applicant did not disclose other than how the issue was managed by the department and an explanation by Mrs Satsha as to why she dealt with the disclosure verbally. There is no investigation report from department showing findings informing their decision to take disciplinary action against the Applicant in this regard.

137. The only proof presented was the Applicant’s contract with WSU which was not fact denied who also shared that Mrs Dency also offers tuition at WSU with no action taken against her. There seems to be an inconsistency challenge in this regard. Further this issue arose in 2018 and 2019. There was further evidence presented of a memo regarding management of discipline that misconduct investigation be finalised within two (2) weeks. The department lived with this issue for a number of years which is indicative that there was no prejudice. It is not conceivable that the Applicant did not disclose based on the evidence led by the Principal and Mr Mkaza that the Principal advised staff to disclose, and Mr Mkaza alluding to disclosing his livestock, and the fact that there was nothing sinister about her extraneous work.

138. Having found that the Applicant committed the misconduct regarding charges 1, 2, and 3, I must consider the appropriate remedy by considering all circumstances.

139. In order to arrive at an appropriate remedy as required in Sidumo v Rustenburg Platinum Mines Ltd and others [2007] 28 ILJ 2405 (CC)one must consider the totality of the circumstances. In considering the circumstances of the contravention. In this regard, the Applicant was a whistleblower and made a protected disclosure regarding activities in the mismanagement of school funds, a matter that was investigated and the Respondent found that indeed there were grounds warranting disciplinary action against the Principal. A sanction was meted out against the Principal. The Applicant also shows other issues affecting school funds like not knowing where other school funds are kept. She further stated that the Principal did business with the school through using his taxis for the school’s transportation needs and depositing school monies to the accounts of teachers close to him. Some colleagues also sought protection orders against the Applicant. This information regarding the whistleblowing is contained in a letter to the Speaker: Eastern Cape Legislature, dated 27 August 2018, supplementary information dated 3 September 2018 in which the Applicant, among other issues,states that the Principal attempts to expel any teacher that does not support his views.

140. There is a complaint by the Applicant against Mr Mkaza dated 11 September 2020 in which she depicts a gloomy picture of their relationship which she states in paragraph 6 of the letter that the relationship between herself and the HOD Mr Mkaza had deteriorated so badly to the extent that he does not evengreet or communicate with her on any meaningful level. The letter is sent to the Circuit Manager, Mr Songca. There is a letter from the SGB Chairperson dated 8 January 2019 which states that the SGB resolved that the Applicant must not be allocated work since the District Office has recommended that she should report to their offices or be suspended for a period of 90 days, pending investigation. The Applicant indicated that the SGB could not produce any evidence supporting the investigation or suspension when the District office intervened. The District office directed her to continue working.

141. It may therefore be argued that the Principal was in a position to target the Applicant based on the whistleblowing, hence the toxic nature of the workplace, particularly for the Applicant. This was put to the Principal and the fact that he was doing business with the school and that was not disputed. But now that he retired the environment would probably be better for her. Further the Respondent meted out a sanction short of dismissal for a transgression that involves mismanagement of school funds by a senior manager of the school. Whilst this is not the same offence as the Applicant’s but it is to be considered on the basis that it is the Applicant that led to the disciplinary action to be taken by the department.

142. On the Respondent’s side they also said that the Applicant had protection orders against her colleagues with conditions for colleagues not to be close to her. The Applicant is portrayed as a very difficult person who refused to submit to authority and caused SGB Meetings to collapse. Mr Mkaza as Applicant’s supervisor, failed to fulfil his own duties and the same applies to the Principal, who has since retired. Other teachers also had protection orders against the Applicant. The Applicant indicated that on the issue of Ms Ngwadla, it is the Principal that advised Ms Ngwadla to get a protection order instead of resolving the issue.

143. It is also to be noted that the Applicant refused to be taken to the District Office given the environment at the school, when the District so directed. The interventions by SACE and the District office that yielded no fruit, but the lacking part is decisive action against any person who behaves in a manner that compromises the integrity of the profession. At some point a report from SACE recommended that she be fired. In essence the school was in a state of chaos where Educators had protection orders against each other, some not initiated by the Applicant.

144. The Applicant was further pushed out of Tiyo’s class, violently to the extent that parents staged a protest against GBV in the school. She sought psychological intervention for herself and the learners who witnessed the incident and received no response from the Respondent. Whilst the Applicant was found guilty for Charges 2 and 3, the manner in which she was manhandled cannot be excused as it is a form of violence.

145. I find therefore that having been found to have committed the transgressions in terms of charges 1, 2 and charge 3 that the remedies to be meted out be applied to show the corrective principles of discipline and considering that she is also a victim of the issues in their school, having made a protected disclosure. No evidence was presented as to the Applicant’s disciplinary record or reference to previous disciplinary action, and this should therefore be treated as a first offence.

146. In respect of the first charge though, the Applicant had a duty to teach learners and seemingly refused, an issue that can be directly linked to her employment contract and statutory provisions relating to her teaching career. It can therefore not be that she takes no responsibility to that, although neglect on the part of supervision/management to take decisive action immediately in this regard is also a factor. The honest engagements she had with the Principal ended when the Principal at the end of March wrote to the department, to take disciplinary action against the Applicant. Given the history of events the department has been lax with issues of professionalism, discipline and ensuring a safe environment. For refusing to teach, the Applicant must therefore account and take responsibility as her conduct affected learners who played no part in the school's politics and this conduct could not have been informed by the whistleblowing. With regards to the Tiyo incident, again the Principal engaged the Applicant and they had an agreement for her to start on 18 May 2021, and indeed she started teaching, without the written undertaking requested by the Principal, so in part she finally complied.

147. In respect of procedural fairness the Applicant raised in the pre-arb the fact that the charge sheet was signed more than 18 months after the incident and that no investigation was done. The Respondent disputed stating that an investigation was done and that the Applicant was investigated between 2018. I do not find any procedural unfairness given that the hearing took a reasonable time and Schedule 8: Item 4 states that the employer should conduct an investigation to determine whether there are any grounds for dismissal. This does not have to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. 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 a written notification of that decision. The procedure meets the requirements in Schedule 8 of the LRA and Schedule 2 of the EEA.

148. I therefore find that the dismissal was procedurally fair. The Respondent did not consider the totality of circumstances as indicated from paragraphs 136 to 146 rendering the dismissal substantively unfair.

149. On the remedy, Section 193(1)(a) provides that the Labour Court or arbitrator may order the employer to reinstate the employee from any date not earlier than the date of dismissal. There has been no progressive discipline applied and that the category of offences allows one leeway in terms of Schedule 2 of the EEA. I have considered the Applicant’s service and the fact that she is not before the Commissioner with clean hands and as such an order of reinstatement without loss of service will be just and fair but with no backpay.


AWARD

150. The Respondent, Department of Education: Eastern Cape, is ordered to reinstate the Applicant, Thandi Lovey Mpitshane on the same or similar terms and conditions that governed the employment relationship prior dismissal. Such order of reinstatement is without backpay.

151. The Applicant, Thandi Lovey Mpitshane, must report for duty on 2 October 2023.

PUMEZA NDABAMBI
PANELLIST: EDUCATION LABOUR RELATIONS COUNCIL