ELRC912-22/23WC

Commissioner: Jacques Buitendag
Case No.: ELRC912-22/23WC
Date of Award: 5 December 2023

In the Arbitration between:

ABDUL GAMIET EDROSS
(Applicant)

and

DEPARTMENT OF EDUCATION – WESTERN CAPE
(Respondent)
 

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. The arbitration hearing under the auspices of the Education Labour Relations Council (ELRC) took place virtually via the Zoom platform on 5 October and 16 November 2023. The proceedings were digitally recorded.

2. The applicant was represented by Mr. Hendricks, an attorney at Parker Attorneys. The respondent ,being the Department of Education – Western Cape, was represented by its Labour Relations Officer, Ms. Qonongo.

3. After conclusion of the proceedings the parties have requested to submit written closing arguments. I have received the arguments on behalf of the respondent and applicant on 22 November 2023.

THE ISSUE IN DISPUTE

4. I must determine whether the respondent’s conduct constitutes an unfair labour practice involving disciplinary action short of dismissal and if so, I must determine the appropriate remedy. In particular, and in accordance with the pre-arbitration minutes, I must determine whether the decision of the Mininster of Education was unfair and whether the appeal process constitutes an unfair labour practice.

BACKGROUND TO THE ISSUE

5. The applicant is employed by the respondent at the Cravenby Combined School. He previously served as Deputy Principal. In the absence of a Principal at the school the applicant was appointed to act in this position with effect from 1 January 2020.

6. In May 2021 the applicant was placed on precautionary suspension. A disciplinary inquiry commenced in July 2021. Ten charges of misconduct were levelled against the applicant. It is common cause that all ten charges emanate from the applicant performing duties and responsibilities as acting Principal and not in his substantive post as Deputy Principal.

7. The external chairperson of the disciplinary inquiry found the applicant not guilty of charges 1 and 2. Charges 3 -10, to which the applicant pleaded guilty, relate to allegations of mismanagement of school funds in that he approved and/or released payments without authorisation or supporting documentation.

8. On 1 November 2021 the chairperson imposed a sanction of a final written warning valid for twelve months. The chairperson further found that the applicant may not act in the position of principal for twelve months or until he has completed relevant training with regards to financial controls and general acceptable accounting practices. After being informed by the respondent that the Employment of Educators Act 76 of 1998 provides for a final written warning to be valid for six months only, the chairperson rescinded the sanction and imposed a sanction of demotion.

9. On 29 November 2021 the applicant, through his union NAPTOSA, lodged an appeal with the Minister of Education. The respondent then lodged a cross-appeal.

10. On 30 January 2023 the Minister of Education informed the parties of his decision. He upheld the chairperson’s finding of not guilty on charge 1 and substituted the finding of not guilty on charge 2 with a finding of guilty. Charge 2 relates to the applicant allegedly providing false information on or about 8 December 2020 in that he requested educators to lie about fraudulent marks submitted with regard to Grade 7 English examination, whilst knowing that the marks submitted was not a true reflection of the learners’ ability.

11. The Minister of Education’s reason for substituting the finding to guilty reads as follows: “I am convinced that on a balance of probabilities, Mr. Edross, together with Sharifa Omar and Insaaf Isaacs, formed the collective objective of convincing Wasiema Omar and Junaid Mcleod to misrepresent to the circuit manager which teacher(s) was responsible for the Grade 7 class. Once that is accepted as true it become likely, on a balance of probabilities, that Mr. Edross’ email to his circuit manager on the Grade 7 marks and report cards was also deliberately dishonest.”

12. In determining the appropriate sanction the Minister of Education stated in the letter as follows: “In determining the appropriate sanction, I am mindful of the fact the employee’s submissions on charges 3 to 10, including that he pleaded guilty, that he had been Acting in the position of Principal; that he had inherited a system of poor financial management; that there was no financial loss to the school; and that there is no evidence of mala fide relating to the irregular payments.
I am also mindful of the fact that the kind of deliberate deception of on display in charge 2 will make it hard for the employer to repair its relationship of trust with the employee.”

13. The Minister of Education then offered the applicant a demotion from the position of Deputy Principal as an alternative to dismissal.

14. On 7 February 2023 the applicant wrote to the Minister of Education and indicated that whilst he disagrees with the outcome that he will accept the demotion subject to reserving his rights to challenge the outcome in the appropriate forum.

15. On 1 March 2023 the applicant was demoted from Deputy Principal to Departmental Head.

16. The applicant then lodged an unfair labour practice dispute with the Education Labour Relations Council.

17. The relief claimed by the applicant, in terms of the pre-arbitration minutes, is to be re-instated as the Deputy Principal at Cravenby Combined School and for the initial sanction of the chairperson (that of a final written warning) to be instituted.

18. The respondent claims that no unfair labour practice was committed and prays for a dismissal of the applicant’s application.

SUMMARY OF EVIDENCE AND ARGUMENT

19. I have considered all the evidence and argument. Because section 138(7) of the Labour Relations Act, 66 of 1995, as amended (LRA) requires an award to be issued with brief reasons for the findings; I shall only briefly summarise the evidence and arguments. If I do not refer to particular evidence and argument, it does mean that I did not consider it.

The applicant’s case

20. Mr. Abdul Gamiet Edross explained that he followed the financial procedures in place at the school when he acted as Principal. He acknowledged his guilt in as far as charges 3 to 10 are concerned. Mr. Edross pointed out that the school suffered no financial loss and that none of these charges related to his duties and responsibilities as Deputy Principal.

21. In as far as charge 2 is concerned the applicant denied that he is guilty of this allegation and provided extensive testimony in this regard. He explained that he made a bona fide error in an email to the Circuit Manager where he typed English teacher grade 7 instead of English teacher grade 6. He testified that he informed the Circuit Manager on 21 July 2020 that he erroneously wrote grade 7 in the email and that he then provided the Circuit Manager with the grade 6 scripts.

22. Mr. Edross testified that he was unaware that the respondent has lodged a cross appeal and that neither he nor NAPTOSA was provided with an opportunity to reply thereto. Mr. Edross testified that he was not afforded an opportunity to respond to the cross-appeal and he views the Minster of Education’s decision to change the chairperson’s finding on charge 2 from not guilty to guilty as unfair.

23. He also believes that the sanction of demotion to Departmental Head was too harsh and unfair.

24. Mr. Hendricks’ written closing arguments is on record. I have considered it. In short, Mr. Hendricks argued that the Minster of Education’s decision to overturn the finding on charge 2 from not guilty to guilty and to demote the applicant was unfair.

The respondent’s case

25. Ms. Christa Badenhorst, the Technical Specialist in the office of the Minister of Education provided a detailed explanation of how the Minister of Education has put systems and procedures in place to ensure fairness in considering appeals against findings and sanctions emanating from disciplinary hearings. These new practices was adopted late 2022 and was not in place when the applicant’s appeal was considered.

26. In as far as the applicant’s appeal and the respondent’s cross appeal is concerned Ms. Badenhorst explained that the delay in finalising the matter was caused by a backlog of appeals that was inherited from the previous Minister of Education. She explained that the applicant’s appeal and the cross appeal of the respondent were also referred to legal services for an opinion which has caused a further delay.

27. She testified that the Minister of Education considered all the evidence and arguments as well as legal opinion before making a decision in this matter. She however could not speak to the Minister’s reasoning for his decision.

28. Ms. Qonongo’s written closing arguments are on record and I have considered it. In short she argued that the Minister of Education’s decision to overturn the finding on charge 2 and to demote the applicant was fair and does not constitute an unfair labour practice.

ANALYSIS OF EVIDENCE AND ARGUMENTS

29. In terms of section 186(2)(b) of the LRA, unfair disciplinary action short of dismissal in respect on an employee fall within the meaning of an unfair labour practice. The onus is on the applicant to prove, on a balance of probabilities, an unfair act or omission on the part of the respondent that gives rise to an unfair labour practice.

30. In terms of the pre-arbitration minutes, I must determine whether the decision of the Mininster of Education was unfair and whether the appeal process constitutes an unfair labour practice.

31. Item 9 of Schedule 2 of the Employment of Educators Act 76 of 1998 reads as follows:
“(1) An educator or an employer may appeal against a finding or sanction by making an application in accordance with Form E attached to this Schedule.
(2) The educator or the employer must, within five working days of receiving notice of the final outcome of a disciplinary hearing, submit the appeal form to the Member of the Executive Council or the Minister, as the case may be.
(3) On receipt of the application referred to in subitem (1), the Member of the Executive Council or the Minister, as the case may be, must request the employer to provide him or her with a copy of the record of the proceedings and any other relevant documentation.
(4) If the Member of the Executive Council or the Minister, as the case may be, chooses to allow further representations by the educator, or his or her representative or an employer, he or she must notify the educator or employer respectively of the date, time and place where such representations must be made. (5) The Member of the Executive Council or the Minister, as the case may be, must consider the appeal, and may— (a) uphold the appeal; (b) in cases of misconduct contemplated in section 18, amend the sanction; or (c) dismiss the appeal.”

32. In terms of item 9 both the educator and employer may appeal against the finding or sanction imposed by a chairperson of a disciplinary hearing. The Minster of Education must then request the employer to provide a copy of the record of the proceedings and any other relevant documents. The Minister of Education may allow further representations and may then uphold the appeal, amend the sanction, or dismiss the appeal.

33. In casu the Minister of Education upheld the respondent’s appeal in as far as charge 2 is concerned by changing the finding of the chairperson from not guilty to guilty. The Minster of Education did so without providing the applicant with an opportunity to reply in writing or to make representations in person about the respondent’s cross appeal and in particular about charge 2. The Minister of Education was not called to explain the reasoning behind his decision and on what evidence he relied to conclude that the applicant “together with Sharifa Omar and Insaaf Isaacs, formed the collective objective of convincing Wasiema Omar and Junaid Mcleod to misrepresent to the circuit manager which teacher(s) was responsible for the Grade 7 class”. And the respondent has also not provided evidence to support the Mininster’s conclusion. On the applicant’s version presented during the arbitration there is no evidence from which to conclude that he was deliberately dishonest in his email to the Circuit Manager, as was concluded by the Minister of Education. In these circumstances I find that the Minister’s decision to overturn the chairperson’s finding on charge 2 from “not guilty” to “guilty” was unfair.

34. I will now turn to the sanction. An arbitrator is not vested with discretion to decide or impose an appropriate sanction short of dismissal in cases of workplace incapacity or misconduct. The arbitrator’s primary duty in disputes such as these is to determine whether the employer’s sanction is fair. I recognise that the employer is entitled to set its own standards of conduct in the workplace having regard to the exigencies of its business subject to the requirement that the sanction imposed by the employer must be fair.

35. In as far as charges 3 to 10 is concerned, it is evident from the letter dated 30 January 2023 that the Minister of Education recognised that the applicant had been acting in the position of Principal; that he had inherited a system of poor financial management; that there was no financial loss to the school; and that there is no evidence of mala fide relating to the irregular payments.

36. It appears that the Minister of Education offered the applicant a demotion being “also mindful of the fact that the kind of deliberate deception of on display in charge 2 will make it hard for the employer to repair its relationship of trust with the employee”. As explained in paragraph 33 above no evidence was presented in this arbitration from which to conclude that the applicant was indeed deliberately deceitful. Moreover, there is no evidence that the applicant has committed any misconduct in his substantive post of Deputy Principal.

37. Having considered all the evidence, I find that the applicant has proven that his demotion from Deputy Principal to Departmental Head was unfair and that it constitutes an unfair labour practice involving disciplinary action short of dismissal.

38. A commissioner has wide discretion when considering appropriate remedies for unfair labour practice disputes. In casu I find that an order to reinstate the applicant as Deputy Principal with effect from 1 January 2024 as just and equitable in these circumstances. In as far as a sanction in respect of charges 3-10 is concerned, the Minister of Education may, if he so chooses, impose a sanction referred to in section18 (3)(a) to (f) of the Employment of Educators Act 76 of 1998 or a combination of the sanctions referred to in paragraphs (a) to (f) on the applicant.

AWARD

The applicant, Abdul Gamiet Edross, has discharged the onus of proving that the respondent, the Department of Education - Western Cape committed an unfair labour practice concerning disciplinary action short of dismissal.
1. The finding of the Minister of Education that the applicant is guilty on charge 2 is overturned to a finding of not guilty.
2. The respondent is ordered to reinstate the applicant into the position of Deputy Principal with effect from 1 January 2024.
3. The Minister of Education may, if he so chooses, on or before 31 January 2024 impose a sanction referred to in section18(3)(a) to (f) of the Employment of Educators Act 76 of 1998 or a combination of the sanctions referred to in paragraphs (a) to (f) on the applicant.


ELRC Panellist: Jacques Buitendag