ELRC288-23/24EC

THE INQUIRY-BY-ARBITRATOR BETWEEN

THE SUPERINTENDENT-GENERAL
FREE STATE Case Number: ELRC288-23/24EC
Panelist: Thobela Obey Mqamelo
Date of Award: 09 October 2023

In the ARBITRATION between

Public Servant Association of SA obo Makeleni Wanda and 1 Other
(Applicant)

And

Department of Higher Education and Training
(Respondent)

DETAILS OF HEARING AND REPRESENTATION

1. This unfair labour practice with specific mention to benefits dispute was set down in terms of section 191(5)(a)(iv) of the Labour relations Act 66 of 1995 (LRA) , under the auspices of the Labour Relations Council, at the offices of the East Cape Midlands College in Uitenhage at 09h00 on 29 September 2023.

2. The applicant, Wanda Makeleni (Mr Makeleni) was present and represented by Bradley Benson (Mr Benson), an Official form Public Servants Association (Union), they both attended virtually via Zoom Online

3. The 1 other is Tsebo Mohale (Mr Mohale) second applicant, was absent during the arbitration proceedings.

4. The Respondent, Department of Higher Education and Training was present and was represented by Lungisani Mpati (Mr Mpati) a Labour Relations Manager at the Respondent.

5. Both parties did not submit any bundle of documents.

6. Mr Wanda Makeleni, and Mr Abonga Mahamba testified during the proceedings.

7. Evidence was tendered under Oath.

8. The proceedings are manually and digitally recorded

9. Both parties made their opening and closing arguments orally.

Dismissal Ruling

10. It is worth mentioning that Mr Tsebo Mohale was present at East Cape Midlands College hearing room, and abandoned the proceedings before the start of the arbitration process.

11. He was contacted by the respondent to find out where he left to and he indicated the he has abandoned the proceedings. He did not give any reasons.

12. I informed his representative Mr Benson (PSA Official) to contact him, and Mr Benson was unsuccessful.

13. Having satisfied myself that the second applicant (Mr Tsebo Mohale) was properly notified of the proceedings, I issue the following ruling.

14. The matter of the second applicant Mr Tsebo Mohale is dismissed, as in terms of section 138 (5) (a) of the LRA

ISSUE TO BE DECIDED

15. I must determine whether the respondent, Department of Higher Education and Training has committed an Unfair Labour Practice, with specific mention to benefit against the applicant, Mr Wanda Makeleni.

BACKGROUND TO THE ISSUES

16. The applicant commenced employment with the respondent on 16 July 2012, he is currently employed as a Lecture earning a salary amount R30 196.88 per month.

17. The applicant seeks a benefit for the recognition of qualification.

SURVEY OF EVIDENCE AND ARGUMENT

18. This is a summary of the evidence considered as in terms of Section 138(7)(a) of the LRA, pertinent to this dispute.

ANALYSIS OF EVIDENCE
APPLICANT’S TESTIMONY
WANDA MAKELENI (MR MAKELENI)

19. The applicant led evidence through his own testimony.

20. The applicant submitted that while in the employ of the respondent he improved his qualifications and completed a qualification at the Nelson Mandela University.in the year 2020.

21. It is the applicant’s submissions that in the year 2021 he first applied for recognition of improvement benefit equivalent to a once off 10 % (R34,066.22) of his annual income.

22. He further submitted that he again applied for this benefit in August 2023.

23. He testified that he is entitled to a benefit for the recognition of improved qualification, as stated in clause 7 of Resolution 1 of 2012 of the Public Service Coordinating Bargaining Council.

24. It is the applicant’s submission that on the day of the arbitration he still has not been paid his benefit by the respondent.

RESPONDENT’S EVIDENCE
ABONGA MAHAMBA (MR MAHAMBA)

25. The respondent led evidence through the testimony of Mr Abonga Mahamba, a Human Resource Practitioner with the respondent.

26. He acknowledged that the applicant applied for the recognition of qualification benefit in 2021, after completion of his further qualification.

27. He submitted that the respondent is not trying to deprive the applicant of this benefit.

28. However when he made follow up on the process of verifying the applicant’s qualification, there was no one from the supply chain department who took accountability of the internal order created by the Human Resource division, and as a result of that, he had to cancel the internal order to avoid any potential risk.

29. He acknowledged that the applicant applied again for the recognition of improved qualification benefit in August 2023.

30. He further submitted that, the reason the applicant has not been paid his benefit is due to the fact that the applicant has not signed a verification consent form granting permission to the external verifying institution to verify the applicant’s qualification.

31. He further submitted that the departmental circular sets out procedural requirements before the respondent can recognise a an improvement of qualification, and that apply to all Further Education and Training Colleges in the Republic of South Africa.

32. He submitted that the process entails the following, that the actual qualification and transcript be sent to the supply chain department, the Human Resource Department create an internal order, the internal order goes to the Deputy Principal Finance, and to the Principal Finance, it goes to the Supply Chain Department to create a purchase order, and that once a purchase order has been created, the Human Resource must compile a file and take it with the qualification to an external service provider to verify the qualifications with the institution that issued the qualification on signing of the consent form by the applicant.

33. On verification of the qualification then the recognition of improved qualification benefit equivalent to a 10% once off annual salary is paid.

34. He submitted that the external service provider will not be able to verify the qualification without consent from the applicant and that a consent form has been sent on 03 September 2023 to the applicant, on which the applicant was sent the verification consent form, and has not signed it and did not sent it back to the respondent.

35. He submitted that the reason for verification of the qualifications is to avoid paying the benefit to people with fraudulently obtained qualification.

36. He acknowledged that the applicant has still not been paid his benefit for the recognition of improved qualification.

37. He submitted that the respondent did not commit any unfair labour practice

ANALYSIS OF EVIDENCE

38. This matter was referred in terms of Section 186(2)(a) of the LRA with specific reference to a benefit.

39. An unfair labour practice in this regard means any unfair act or omission that arises between an employee and employer involving unfair conduct by an employer relating to the provision of benefits.

40. It is trite therefore that the Applicant in this matter bears the onus of showing that the above unfair conduct occurred.

41. Before dealing with the analysis I find it prudent to highlight that this matter pertain to a benefit arising ex contractu or ex lege.

42. The matter pertains to an improvement of qualification benefit as stated in the Public Service Coordinating Bargaining Council resolution 1, clause 7 of 2012.

43. In this matter, broadly speaking, the applied for this benefit 2021, and his application was cancelled, and the later in August 2023, and was given a verification consent form to give consent to the external verification institution, and the applicant has not yet given consent for his qualification to be verified. Thereafter the applicant has not been paid this benefit.

44. I accordingly have to determine whether this decision, depriving the applicant of the benefit, amounted to an unfair labour practice.

45. In support of my notions above I rely on the below principles.

46. In Aucamp v South African Revenue Service (2014) 2 BLLR 152 (LC) the court held that remuneration as contemplated by law requires payment to the employee to be a quid pro quo for the employee actually working. Therefore, if the benefit is not a guaranteed contractual right per se, the employee could still claim the same on the basis of an unfair labour practice if the employee can show that the employee was unfairly deprived of the same.

47. However, one looks at the above scenario, it is evident that an understanding of the internal procedures in obtaining this benefit is required.

48. The applicant is aware that he must apply to obtain this benefit, hence he applied in 2021 and in 2023 for this benefit.

49. Under cross examination the applicant conceded that he is aware that he must give consent to the external institution in order to verify his qualification.

50. He also concede that he understand that the importance of the verification of qualifications is to prevent the benefit being paid to employees who fraudulently obtained their qualification.

51. It is important to consider the purpose of the internal policy. I cannot fault the respondent by cancelling the first application of in 2021 of the applicant when there was no accountability, from the supply chain department. This is to eliminate potential risk.

52. Mr Abonga Mahamba’s was relevant and reliable in his testimony when explaining the internal process pertaining to obtaining the recognition of improved qualification benefit.

53. Under cross examination the applicant admitted that it is not fair to expect the respondent to pay him the benefit, as the internal procedure required the verification procedures to be done.

54. Under the circumstances, the respondent’s version must stand as the most probable version.

55. The testimony of Mr Abonga Mahamba is relevant and reliable.

56. Without the verification consent form filed at the respondent, I do not find any unfair labour practice committed by the respondent.

57. I find, the Respondent, Department of Higher Education and Training did not commit any unfair labour practice.

AWARD

58. I find, the Respondent, Department of Higher Education and Training did not commit any unfair labour practice.

59. The applicant’s claim of unfair labour practice is dismissed.


Signature:

Commissioner: Thobela Obey Mqamelo
Sector: Tertiary Education


DEPARTMENT OF EDUCATION EMPLOYER

and

MR MOTOANE GODFREY MOFOKENG EMPLOYEE

Case No: ELRC361-22/23FS
Dates: 17 April, 21 July & 22 August 2023
Venue: DOE Provincial Office, Bloemfontein


AWARD

DETAILS OF HEARING AND REPRESENTATION

1. This is an arbitration award, in the disciplinary matter (Inquiry-By-Arbitrator) between, the Superintendent-General: Free State Department of Education (hereinafter ‘the employer’), and Mr Motoane Godfrey Mofokeng, ‘the employee’.

2. The Inquiry-By-Arbitrator (hereinafter ‘the Inquiry’) was first scheduled for 01 October 2022, then 01 and 02 December 2022, then 24 February 2023. It was postponed on those occasions, for a variety of reasons. It then took place on, 17 April, and resumed on, 21 July, and 22 August 2023, at the Provincial Office of the employer in Bloemfontein. Both parties attended the Inquiry. The employer was represented by, Ms Lindiwe Cweba, its Labour Relations Officer. The employee was represented by, Mr MJ Mathe, an Official from the trade union, South African Democratic Teachers Union (hereinafter ‘SADTU’).

3. The Inquiry was held under the auspices of the Education Labour Relations Council (hereinafter the Council), in accordance with section 188A of the Labour Relations Act (the LRA), read together with Clause 32 of the Council’s Dispute Resolution Procedure, as well as the Council’s Collective Agreement (Resolution 3 of 2018). The award is issued in accordance with section 138(7) of the LRA.

4. The proceedings were digitally recorded, and Mr LL Mpitsi was the Interpreter. Mrs MA Mphatane was the Intermediary. The parties’ representatives requested at the end of the Inquiry, to submit closing arguments in writing by, 29 August 2023. It was also agreed that should I not find the employee guilty under section 17 of the EEA, that the parties be afforded a further opportunity to submit mitigating and aggravating factors by, 14 September 2023, whereafter the award shall then follow.

ISSUE TO BE DECIDED

5. I am called upon to decide whether the employee misconducted himself, as per the allegations levelled against him. If I find that he did commit the misconduct, I must decide on an appropriate sanction.

BACKGROUND TO THE DISPUTE

6. It is common cause that the employee is employed by the employer as an Educator, in Social Science, Geography, History and Sesotho since, 01 February 2016, at Ntemoseng Secondary School, in Botshabelo, to date. Following acts of alleged misconduct(s) around March 2021, the employee was then notified of the allegations on, 27 July 2023.

7. The allegations levelled against the employee are as follows:

Charge 1
You have contravened Section 18 (1) (q) of the Employment of Educators Act No 76 of 1998, in that on or about March 2021, you conducted yourself in an improper, disgraceful or unacceptable manner when you proposed love to (learner) a grade 12 learner at a school where you are employed. [sic]

Charge 2
You have contravened Section 18 (1) (q) of the Employment of Educators Act No 76 of 1998, in that on or about March 2021, you conducted yourself in an improper, disgraceful or unacceptable manner when you had an improper relationship with (learner) a grade 12 learner at a school where you are employed. [sic]

8. The employee pleaded not guilty to both charges. The employee was properly served with a notice to appear at the Inquiry, and was provided with sufficient time to prepare for the case. His rights and obligations were also properly explained to him at the commencement of the Inquiry.

9. For purposes of this award, the names of the learners involved in this case, shall be kept confidential. The learner was 18 years old, and in Grade 12 at the time when the alleged incident took place. It was not clear where exactly the alleged incident(s) took place.

SURVEY OF EVIDENCE AND ARGUMENT

10. This section constitutes a brief summary of the evidence and arguments put forward by the parties. It is not intended to be exhaustive, but I have taken all the submissions into consideration in arriving at my conclusions.

Documentary Evidence

11. The following bundles of evidence were handed-in:
Employer: Charge sheet, audio recording and bank statement of the learner
Employee: None

Employer’s Case

12. Mrs Memeng Mothalosa ‘Mrs Mothalosa’, the School Principal, testified as the first witness for the employer. She stated that it was in November 2021, during school camps, where an incident occurred where two female learners fought over instant porridge. Mrs Mothalosa stated that a few days later, on a Thursday, a former educator, Ms Mokgele, brought the learner to her office, and told the learner to disclose the real cause of the fight between the learner, and the learner’s friend.

13. Mrs Mothalosa stated that the learner gave in, and admitted that she (learner) and the friend fought about an educator, namely the employee in this matter. She stated that whilst they were having the conversation, the learner was then busy chatting with the employee, on her cell phone. Mrs Mothalosa stated that she took the cell phone, when the learner told her that the employee told her over the phone to deny everything.

14. Mrs Mothalosa further stated that she arranged a meeting with the two learners’ parents, where it also became clear at the meeting that the girls were fighting over the employee. She stated that the other learner (P), denied having had an affair with the employee, yet it became clear at the meeting that both girls had an affair with the employee. Mrs Mothalosa testified that whilst the learner’s mother indicated that she will pursue the matter further, the mother of learner (P) insisted that her child did not have an affair with the employee.

15. Mrs Mothalosa stated that she reported the matter to her circuit manager, and the respondent’s labour relations section. She stated that the learner did admit to her that she (the learner) had a relationship with the employee, and that there was a commotion between her (the learner) and learner (P), and the employee, in the employee's office, regarding the fact that the learner felt betrayed.

16. In cross-examination, Mrs Mothalosa stated that the learner told her that she (the learner), had a love relationship with the employee, but did not give further information about it. She stated that upon calling the employee into her office, in the absence of the learner, the employee responded in shock and tears, and asked why she did not call him in whilst the learner was still in her office.

17. Mrs Seletso Emily Mokoena “Mrs Mokoena”, the parent of learner (P), testified as the second witness for the employer. She confirmed that she heard about the fighting incident over porridge the first time at a meeting called by the principal. Mrs Mokoena stated that the fight was masqueraded as one about porridge, whereas it was a fight about the employee, by the two girls. She confirmed that the learner even chatted with the employee, during the meeting. Mrs Mokoena stated that the learner eventually admitted to having had a relationship with the employee. She stated that the learner’s mother burst out in tears, and said, ‘no wonder the employee used to greet her in a funny friendly manner’.

18. In cross-examination, Mrs Mokoena stated that none of the girls were pressured to tell anything, and that learner (P) told her that the learner also became jealous when the employee asked learner (P) for water.

19. In closing arguments, the employer’s representative submitted that the employee caused the learner not to testify at the Inquiry, because of him having paid several amounts of money into the learner’s bank account, and that the audio recording between the learner and the employee shows that they had a relationship.

20. The representative submitted that the conduct of the employee falls within the ambit of section 17, and that the employee must be dismissed if found guilty, because the employee abused his position of authority over the learners, and failed to act in loco parentis towards the learners.

Employee’s Case

21. Mr Motoane Godfrey Mofokeng, the employee, testified as the only witness in his case. He denied all the allegations against him, and stated that he had a love relationship with the learner’s elder sister between 2019 and 2020, but never with the learner herself. The employee testified that he heard about the fight between the two learners, and that he even had a meeting with them, and reprimanded them to discontinue tarnishing his image. He also denied having had a relationship with learner (P).

22. The employee stated that it was wild rumours which was spread about him and the learner, and that Ms Mokgele instigated the trouble by coercing the learner to give this version. In cross-examination, the employee stood by his testimony, and added that the learner was coached, on how to make the allegation. He stated that he gave children money all the time, and that it is possible that he could have given the learner money.

23. The employee’s representative did not submit his closing arguments as promised.

ANALYSIS OF EVIDENCE AND ARGUMENT

24. As stated previously, the employee pleaded not guilty to the charges levelled against him. The employer called two witnesses. The employee was the only witness in his case.

25. The employer’s case is that the employee conducted himself in an improper, disgraceful or unacceptable manner, based on the type of relationship he had with the learner. The employee contended that he is not guilty of the allegations, and that he was framed by a fellow colleague, one Ms Mokgele. I shall now proceed to consider the allegation(s), the facts and evidence of case, as well as the application of the law on the facts.

Charge 1
You have contravened Section 18 (1) (q) of the Employment of Educators Act No 76 of 1998, in that on or about March 2021, you conducted yourself in an improper, disgraceful or unacceptable manner when you proposed love to (learner) a grade 12 learner at a school where you are employed. [sic]

26. Even though Mrs Mothalosa, and Mrs Mokoena stated that the learner admitted to them of having had a love relationship with the employee, the learner did not testify to corroborate the evidence of the two, as far as the love relationship is concerned. However, the audio recording which was presented as evidence by the respondent, clearly shows that the employee and the learner had more than just a professional relationship, in that the employee pleaded with the learner not to disclose or reveal the true nature of their relationship.

27. The employee was also unable to justify the payments which he occasionally made to the learner. No educator may be seen make payments to learners, without the knowledge of the learner’s parents, and without giving proper explanations for it.

28. As regards the audio recording, the inference to be drawn from this is that clearly, the employee has something to hide, in which case he begged the learner not to make public. I find the audio recording as a reliable piece of evidence, which on a balance of probabilities, proves that the applicant had a love relationship with the learner, a conduct on the part of the employee which I find improper, disgraceful and unacceptable.

29. I therefore do find the employee guilty on Charge 1.

Charge 2
You have contravened Section 18 (1) (q) of the Employment of Educators Act No 76 of 1998, in that on or about March 2021, you conducted yourself in an improper, disgraceful or unacceptable manner when you had an improper relationship with (learner) a grade 12 learner at a school where you are employed. [sic]

30. Then there is charge 2, which describes the relationship between the employee and the learner, as improper. The evidence of the employer shows that the employee even made regular payments to the learner, and that the audio recording shows that the employee did not want the learner to reveal everything about their relationship to the parents and the employer.

31. This type of relationship is not one which is common between a professional educator, and a learner. The fact that Mrs Mothalosa and Mrs Mokoena could see the learner chatting with the employee on her phone, and in which the employee told the learner not to say everything, shows indirectly that the relationship between the employee and the learner, was not that of a normal teacher/learner relationship.

32. Even though it cannot be pinpointed what the exact nature of the relationship was, the relationship, on face value, appears to be improper and not normal.

33. Section 18(1)(q) of the Employment of Educators Act 76 of 1998 (hereinafter the EEA), provides the following:

Misconduct
18. (1) Misconduct refers to a breakdown in the employment relationship and an educator commits
misconduct if he or she –
(q) while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner
33. Now the employee has admitted that an incident did take place where the two learners fought about him, to a point where he had to call them into his office, and to reprimand them about them tarnishing his image. Now in my view, the type of relationship which the employee had with the learners, was not just improper, but unacceptable as well. No learners of the opposite sex need to fight over an educator, like the instance of the employee. Whatever the employee gave or promised to give the learners was not just improper, but unacceptable as seen by the conflict which it caused between the two learners.

34. I am persuaded by the evidence and admissions before me that the employer has proven Charge 2 on a balance of probabilities.

VERDICT

35. The employee is hereby found guilty on both charges, as regards the improper, disgraceful and unacceptable relationship he had with the learner.

SANCTION

36. The Education Laws Amendment Act (the ELAA), which purpose is also to amend the EEA’s provisions dealing with incapacity, misconduct and appeals, provides the following:

11. The Employment of Educators Act. 1998, is hereby amended by the substitution for sections 18 to 24 of the following section:
“Misconduct
18. (1) Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she—
1 (a) fails to comply with or contravenes this Act or any other statute, regulation or legal obligation relating to education and the employment relationship;
(b) wilfully or negligently mismanages the finances of the State, a school, a further education and training institution or an adult learning centre;
(c) ………….
(q) while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner;
……………………………….
(2) If it is alleged that an educator committed misconduct as contemplated in subsection (1), the employer must institute disciplinary proceedings in accordance with the disciplinary code and procedures contained in Schedule 2.
(3) If, after having followed the procedures contemplated in subsection (2), a finding is made that the educator committed misconduct as contemplated in subsection (1). the employer may, in accordance with the disciplinary code and procedures contained in Schedule 2, impose a sanction of—
(a) counseling;
(b) a verbal warning;
(c) a written warning;
(d) a final written warning;
(e) a fine not exceeding one month’s salary;
(f) suspension without pay for a period not exceeding three months;
(g) demotion;
(h) a combination of the sanctions referred to in paragraphs (a) to (i): or
(i) dismissal, if the nature or extent of the misconduct warrants dismissal.
(4) Any sanction contemplated in subsection (3)(e), (~) or (g) may be suspended for a specified period on conditions determined by the employer

37. It is clear from subsection 11(3) of the ELAA that a sanction of dismissal may be imposed on the employee, if found guilty of a misconduct, such as the one in this case, namely, a contravention of paragraph 18(1)(q) of the ELAA. Having considered the gravity of the misconduct, as well as the extent thereof which led to two learners having engaged in a in physical fight over the employee, I arrived at a conclusion that progressive discipline will not secure the safety and well-being of the learners, under the care of the employee.

38. It is for these reasons that a sanction of dismissal should suffice, as contemplated by paragraph 11(3)(j) of the ELAA.

39. In the premise, I make the following award:

AWARD

40. Mr Motoane Godfrey Mofokeng is guilty of Charge 1 and 2, as levelled against him, by the Superintendent-General: Free State Department of Education.

41. A sanction of dismissal, is imposed on Mr Motoane Godfrey Mofokeng with immediate effect, for conducting himself in an improper, disgraceful and unacceptable manner.

42. The Council is directed to serve this award on the Director-General of the Department of Social Development, for purposes of listing the employee on the Child Protection Register.

43. The Council is further directed to serve a copy of this award on the South African Council of Educators.

This is done and dated on, 06 October 2023, at Kimberley.

Adv. David Pietersen
ELRC COMMISSIONER

Inquiry-By-Arbitrator