Award  Date:
12 December 2023 



Case Number: ELRC359-22/23WC
Arbitrator: Retief Olivier
Date of Award: 12 December 2023

SADTU obo Delmaine Amerika Applicant


Western Cape Education Department Respondent

Applicant representative: J Dimande - SADTU

Respondent Representative: F Scholtz


1. The arbitration hearing took place at the offices of the Western Cape Education Department (WCED), 1 North Warf Square, Cape Town, on 26 January, 27 February, 5 May, 2 June, 11 July, 15 August and 20 October 2023. The applicant was represented by Mr J Dimande from SADTU, and the respondent the WCED was represented by Mr C F Scholtz, labour relations official. It was also agreed that written closing arguments would be submitted by not later than 22 November 2023.


2. The Applicant referred the matter to the ELRC as an unfair dismissal dispute. The Applicant was found guilty in a disciplinary hearing held on 7 February 2022 on the charge that she was guilty of misconduct in terms of section 18(1) of the Employment of Educators Act in that during September 2021 she committed an act of dishonesty by providing great 12( C) learners at Tuscany Glen High School, prior to their scheduled examination date, a portion of the September Afrikaans First Additional Language paper 2 trial examination question paper, in preparation for the examination via WhatsApp. The chairperson imposed the sanction of dismissal on 22 February 2022. The applicant submitted an appeal against the sanction, but the appeal was dismissed by the MEC of Education.

3. The applicant then referred the matter to the ELRC, submitting that the dismissal was both substantively and procedurally unfair. I must therefore decide whether the sanction of dismissal was fair, on both procedural and substantive grounds.


4. The applicant Ms Amerika had been employed as an educator with the WCED for 12 years, and it was an educator at Tuscany Glenn High School and was teaching the subject Afrikaans for the grade 12 learners. It was common cause that the applicant forwarded a WhatsApp message to the grade 12 C learners, of which she was the class educator, for the September 2021 Afrikaans additional language paper. It was submitted that the applicant had prior knowledge of the this September 2021 Afrikaans additional language paper and was aware that the WhatsApp forwarded contained a portion in a question and answer relating to that paper. The WhatsApp message was forwarded to the learners in the class one day before the September 2021 examination took place, and was only forwarded to the grade 12 C class and not to any other learners in other classes.

5. In opening statements, the applicant disputed strongly that the WhatsApp message contained a question from the exam paper, the applicant submitted it was a question and answer written on a note that was forwarded to her as the class teacher by a learner, which she then forwarded to the class. It was submitted by the respondent that as a moderator of that exam paper the applicant was aware that it was a question, with the answer, as in the exam paper, but was disputed by the applicant. It was further disputed that the learners would have been unjustifiably advantaged and it was disputed that she willfully forwarded the WhatsApp message with the intention to unjustifiably advantage the grade 12 C learners. Therefore, the applicant also denied that her actions constituted dishonesty as stated in the charge. The applicant also submitted that the respondent and Mr Jantjies as principal was inconsistent in that the allegations relating to applicant was never referred to SAIC and she was never given an opportunity to explain what occurred in the exam, as Mr Jantjies did with other examination irregularities committed by teachers in the school.

6. Following the notice of the disciplinary hearing the appointed initiator in the disciplinary hearing, Mr Maurice Muller, engaged with the applicant in December 2021 and offered a plea bargain, noting that if she pleaded guilty to the charge the Department will amend its that mandate and issue a sanction of a final written warning valid for six months and a fine of two weeks salary wholly suspended for the period of 12 months. It was also noted that if this plea-bargain agreement was not accepted that the Department will proceed with the disciplinary hearing and that the sanction may be harsher than the one prescribed in the plea agreement. The applicant however rejected this offer, stating that she cannot admit guilt as she was only doing her job as a teacher.

7. When this issue was canvassed in the course of the arbitration hearing, the applicant again reiterated that she was not guilty of the offence of dishonesty and that she was only doing her job and that she was also advised by her colleagues she had done nothing wrong, and that the employer will not dismiss her. She therefore stood by the decision she made when rejecting the plea-bargain.


8. Each party called witnesses to testify, and submitted written closing arguments. Bundles of documents were also submitted as evidence. Fairly extensive evidence was led and cross examination was conducted. Although I have considered all the evidence and arguments, I am only referring to those aspects relevant to determine the dispute and brief summaries of evidence, as I am required in terms of sec 138(7) of the LRA to provide an award with brief reasons.

Employer’s version:

9. Mr Sydney Jantjies, former principal of Tuscany Glenn High School, testified that he was appointed this principal of the school since 1 October 2016 and with effect from 1 October 2022, he was appointed as principal at Knysna Secondary School. The applicant was already teaching at the school when he was appointed and she was teaching the subject Afrikaans for the grade12 learners and Mr Jacobs was her direct supervisor.

10. He stated that he was aware of the WhatsApp that had been sent to the learners on 21 September 2021, as the matter had been reported to him in respect of a complaint by learners in another grade 12 class. He noted that the applicant was the author of the WhatsApp message. The message was addressed to the great 12 C learners in the class of which the applicant was the class teacher. He understood the message to imply that they must study the question and answer for the exam paper, so that they can be prepared for the actual examination the next day. He emphasized that it is only the grade 12 C learners that received this WhatsApp and that they were therefore advantaged in the examination. It was Mr Jacobs who reported the matter, stating the three learners reported and first mentioned that the grade 12 C class was advantaged in the Afrikaans exam paper, as they had been provided with the question and answers prior to the actual examination.

11. He stated he then reported the matter to the WCED and the reason for reporting it was that an educator cannot divulge such confidential information about the contacts of an examination paper to learners before the writing of the exam. Such an educator would be committing misconduct and would be compromising the examination process. He acknowledged that the applicant’s misconduct was not referred to the school assessment irregularity committee (SAIC), as formal disciplinary steps were taken against the applicant by the WCED, who decided formally to charge her with misconduct. She was requested to appear before a disciplinary hearing on 9 December 2021. The disciplinary hearing was postponed to February 2022, where she was found guilty of misconduct and a sanction of dismissal was imposed. He reiterated that he could not trust the applicant longer, as she committed a serious transgression and did not show any remorse

12. During cross-examination he reiterated that the MEC applied her mind and considered the seriousness of these offenses and the impact it had on the learners and on the school, and the fact that the applicant was an experienced educator, and that this was completely unacceptable and her experience was in fact an aggravating factor.

13. Mr Muller stated he was appointed by his former supervisor Ms Blanker to investigate this matter. He was already investigating allegations of misconduct against another educator at the school. When he received this case for further investigation, he met with Mr Jantjies and consulted with the applicant and certain of the grade12 C learners who were in the applicant’s class. He identified the applicant as the author of the WhatsApp message and found that the message was addressed to grade 12 C learners in the applicant’s class. He found that it was only this grade 12 C class that received these exerts of the examination paper and it gave them unfair advantage over the other grade 12 learners who did not receive it. It was sent to the grade 12 learners on WhatsApp the day before the actual exam. After he obtained the information, he compiled a report for his manager and after his manager signed off his official mandate, the applicant was formally charged with misconduct by the WCED.

14. He testified about amending the mandate to allow for a plea bargain, which was equal to a fine of two weeks salary wholly suspended for 12 months and a final written warning. The applicant however did not accept this and the applicant’s disciplinary hearing then commenced on 7 February 2022. The presiding officer found the applicant guilty and dismissed her.

15. Regarding an allegation of bias from the applicant in that he and the principal attended the same church and knew each other, and that it influenced the outcome of this case, he responded that he is not familiar with the principal and they may belong to the same church, but not the same congregation, and they were not house friends. He also testified about the other educator he was investigated School, a certain Ms Solomons, who was initially charged of misconduct, but it was later withdrawn by the WCED due to lack of substance. He also stated that the applicant had submitted grievances and complaints against Mr Jantjies regarding the inconsistency in the exercise of discipline, but withdrew these at some point because she wanted to have a good and peaceful and working relationship with the principal.

16. In closing the respondent submitted the charges were serious and that the evidence submitted by the respondent should be accepted and that there is no evidence confirming bias against the applicant. A complaint was laid and it was investigated and referred to the Department, who acted and charged and disciplined the applicant. The applicant conceded that she had to take responsibility for sending the WhatsApp message to the learners and even though later she expressed some remorse, her transgression is still seen in a very serious light. He submitted that her contention that the WCED did not act consistently as the principal did not report of other related cases has no merit, the principal did not only reported this matter, but others as it was brought to his attention and then referred to the Department for further investigation.

17. It was also submitted that the witness who testified in defense of the applicant, Ms Mbekwa, conceded that it is not normal to communicate actual examination question papers to learners and that it would be seen as a serious irregularity, an allegation of dishonesty is regarded as very serious. Ms Du Preez could not shed any light on the contents of the misconduct allegations against the applicant, as she was not involved in the investigation and no matter what the outcome of the grievance that she investigated, it does not change anything in that the applicant was found guilty of misconduct relating to a very serious transgression.

18. The respondent therefore submitted that in terms of the sanction of dismissal, it was justified in the circumstances where there was a serious transgression, a breakdown in the trust relationship, and the applicant failing to show proper remorse, and in consideration of caselaw that was presented and referred too.

Applicant’s version:

19. The applicant, Ms Amerika stated that she had been teaching at Tuscany High for 12 years and prior to that she was in governing body posts. Regarding the charges she stated that she understood now that the charge relates to dishonesty, but in her mind, she was not dishonest, but now understood that she was negligent in that she did not properly read the message and regrets sending it to the WhatsApp group. She realizes she had made a huge mistake, she never wanted to advantage the learners and she stood for fairness and what is right. She referred to the plea-bargain and stated that the time she was adamant that she did nothing wrong and she was also told so by her colleagues, and that is why she rejected the plea-bargain. She acknowledges she was not in a right frame of mind at that time and did not see her actions as being dishonest. She also stated that the plea-bargain was not properly explained to her.

20. She conceded that she had sent the WhatsApp message but stated at that time they were using WhatsApp messages, as it was during Covid, and there were no guidance or instructions about how they should be dealing with WhatsApp messages. She also submitted that Mr Jantjies, as the principal at the time, did not act consistently, as he did not report other related cases. Other cases were referred to SAIC, but hers not. She also testified there was never a problem with her work and that she delivered good results and even the principal acknowledged that. The applicant also testified that when the WhatsApp message was first sent to her, she saw that it was a question and answer from a notebook and she forwarded it to her learners because many of the learners were not in class during the year after Covid. She further stated she was unaware that it was a question that appears in the exam paper, because it was from a notebook. She stated that it was only later that she realized it was in the exam paper and that it was also in exam paper for the Metropole paper in 2017. She never told the learners they must study this question for exam purposes.

21. She also referred to the investigation conducted by Mr Muller who approached her whilst he was conducting another investigation at the school during September and October 2021and she stated it about Ms Rossouw, and he responded that it was about Ms Solomons, but no charges were laid against Ms Solomons because he stated there was insufficient evidence. She informed him that she has evidence that Ms Rossouw did not mark all her scripts. He told her at that time the time there was also a complaint against her and that it would be investigated.

22. During cross-examination she was questioned about her allegation that there is a family relationship between the Mr Jantjies and Mr Muller and that Mr Muller was therefore biased. It was put to her it was Mr Muller who offered her the plea-bargain on behalf of the employer, which she rejected. She reiterated that at that time she did not accept a plea bargain because according to her there was no evidence against her and she was not dishonest, but she also did not know how to respond as she did not understand it properly. She stated that at the disciplinary hearing in February 2022 she was not afforded an opportunity to call witnesses, but it was put to her that she indicated she was ready to proceed and it was her representative’s responsibility to ensure that her witnesses testify, and she confirmed that the representative never came back to her about that. Regarding the exam paper she confirmed that Ms Solomons drew up the exam paper for Afrikaans in September 2021 and that she moderated the paper, and that she was aware of the content of the exam paper. She did then express remorse for her actions and acknowledged that actions were wrong, but asked that the WCED give her a second chance, she did not think through the implications of her actions. She also noted that she had submitted various grievances against Mr Jantjies previously but she withdrew it, but then also submitted grievances when she was being investigated and charged.

23. Ms Julia Du Preez, employee relations officer from the district, testified about the relationship between the Mr Jantjies and the applicant and said that where grievances that had been submitted against him by the applicant, specifically referring to the grievance that was submitted in February 2022. She stated that she was not aware that the previous grievances had been withdrawn, but these grievances submitted in February 2022 were investigated and a report was drawn up, and the recommendations in the report was accepted. A copy of the report, dated 17 August 2022, was also submitted to the hearing.

24. During cross examination she indicated that the grievance submitted in February 2022 was investigated by herself and she went to the school and met with the principal and the applicant on 11 of March 2022, and again visited the school on the 14 April and on the 30 May 2022. She dealt with governance issues and that they supported school governance and management and that she does not investigate misconduct. The recommendations that came out of the grievance report was referred to the circuit manager. The report was also sent to the head office. She was not aware that the applicant had been charged because did not disclose this during the discussions they had with her at the school. She herself also does not get involved in serious misconduct issues. She was not aware of the other investigations and did not know the outcome of the investigations regarding Miss Rossouw.

25. Ms. Cindy Mbekwa, previously departmental head for languages and currently deputy principal at the school, testified that the applicant had always been very professional and there was never a complaint against her. Regarding challenges in her department, she stated that there was one instance of teachers who did not mark scripts. At that time the applicant was the subject head for post moderation, when the applicant discovered that Ms Solomons as Ms Rossouw failed to mark certain scripts and she submitted a letter about this dated 19 October 2021. She referred this matter to SAIC. SAIC indicated that they cannot deal with it as it relates to a teacher irregularity. The matter was then investigated by labour relations. She said she could not comment on the applicant’s case, as she was not involved and did not know what happened in the investigation. When it was explained that the applicant forwarded a question from an exam paper to learners, she indicated that that is not acceptable, one cannot communicate actual questions to learners, it would constitute an irregularity.

26. She confirmed during cross-examination that there was an investigation involving Ms Rossouw, but she was not involved and did not know what the outcome was. She also conceded that a transgression that related to dishonesty is a serious issue, as it impacts on the trust relationship between the employee and the employer, and conceded the employer has the final say about the trust relationship, but it should be applied consistently.

27. In closing it was submitted that the dismissal of applicant was also procedurally unfair in that the employer should first have referred the matter to SAIC, and also failed apply discipline consistently. The employer also acted unfairly by delaying the internal disciplinary process. There was no evidence that the employees conduct was dishonest, in the circumstances it was submitted the sanction of dismissal was too harsh.

28. It was further submitted that the applicant never denied the fact that she forwarded the notes on the WhatsApp group, but it did not advantage the learners at the time, as she saw the message was work that came from a notebook and was covered during the teaching time. The applicant also indicated she did not accept the plea-bargain agreement, but it should be considered that at the time she was not familiar with the disciplinary procedures and what outcome with the would be. She stated that she was remorseful and misinformed and guided wrongly by educators at that time. She was an honest hard-working teacher that out the interest of the learners that are heart. The applicant was an excellent teacher who made a poor decision for sending the WhatsApp message, at a time that she was not familiar with social media and did not see her actions as dishonesty.

29. The LRA states in the Code of Good Conduct in sec 7 of Schedule 8 that in a dismissal dispute the following must be considered:
“Any person who is 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) It was 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;”

The second question to be answered is with regard to the appropriate sanction. In s7 (b) it is noted:
(iv) Dismissal was an appropriate sanction for the contravention of the rule or standard.

30. It was noted that the applicant never denied that she had sent the message on the WhatsApp group, and at first submitted that she did not understand the implications of forwarding the message, considering that it was forwarded in the format of hand written notes. The evidence of the applicant was quite contradictory in that she on the one hand insisted that had done nothing wrong, but then acknowledging that she should not have forwarded the message and that was it a mistake on her part. It was also submitted that the applicant was not familiar with the social media rules and that her actions constitute a transgression, but in her acknowledging that it was a mistake on her part to forward the WhatsApp message, there is an acknowledgement that she transgressed.

31. The applicant also submitted that she was not aware the message that she forwarded was a question that appears in the examination paper. However, when questioned she confirmed that she had moderated the particular exam paper that had been drawn up by Ms Solomons, therefore she could not have been unaware that the message that she forwarded, which included questions that would appear in the exam paper, together with the answers, the next day. In considering the evidence presented, I also noted that the applicant acknowledged wrongdoing and showed some remorse, although the remorse appears more related to the fact that she made the wrong decision when she was offered the plea bargain. She however insisted that even if her actions were wrong and perhaps even grossly negligent, she was not dishonest. Grogan J, in Dismissal, 1st Edition, p 188, notes that in respect of the dishonesty “dishonesty is a genetic term embracing all forms of conduct involving deception on the part of the employees. In criminal law, a person cannot be convicted of dishonest conduct unless that conduct amounts to a recognized offence. However, in employment law, a premium is placed on honesty because conduct involving moral turpitude to employees damages the trust relationship on which the contract is founded. The dishonest conduct of employees need not therefore constitute a criminal offense. Dishonesty can consist of any act or omission which entails deceit. This may include withholding information from the employer, making a false statement or misrepresentation with the intention of deceiving the employer.”

32. The applicant when questioned as to why she forwarded the email stated there was no dishonest intent, but that she forwarded it because many of her learners had not been in class over the year due to covid. She also stated that no one was advantaged or disadvantaged. That is not true, as learners from the other classes who had not received the message complained, arguing particularly that her class had been advantaged. She also indicated that she was not aware of the content, but she had moderated the paper, so she could not have been unaware of the content of the paper and therefore of the questions contained in the WhatsApp message. I find that her actions were therefore deceitful and dishonest.

33. Without repeating all the evidence, I find that the applicant did in fact transgress and that she was guilty of the charge, that also related to dishonesty. The further consideration thus is whether the sanction of dismissal was fair.

34. In assessing whether or not an employer’s decision to dismiss was an appropriate sanction according to the case of Sidumo v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC,) I considered specifically paragraph 75 and 94 referring to the issue of fairness and criteria for consideration by the commissioner. The respondent submitted that the misconduct of Ms Amerika was serious, and that there was a breakdown in the trust relationship. She acted dishonestly and by her conduct she failed in a core responsibility as an educator, also compromising the integrity of the examination.

35. In the case of Hullet Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry and others (D 679/04) [2007] ZALC 93 (6 December 2007) it was stated:
“42] Turning to the issue of the seriousness of the offence, the presence of dishonesty tilts the scales to an extent that even the strongest mitigating factors, like long service and a clean record of discipline are likely to have minimal impact on the sanction to be imposed. In other words, whatever the amount of mitigation, the relationship is unlikely to be restored once dishonesty has been established in particular in a case where the employee shows no remorse. The reason for this is that there is a high premium placed on honesty because conduct that involves corruption by the employees damages the trust relationship which underpins the essence of the employment relationship. In this regard the Court in Sappi Novaboard (PTY) Ltd v Bolliers (1998) 19 ILJ 784 (LAC), held that:
“ In employment law premium is placed on honesty because conduct involving moral turpitude by employees damages the trust relationship on which the contract is founded.”
[43] The same approach was adopted in the case of Standard Bank of SA v CCMA and Others (1998) 19 ILJ 903, where the court held that dishonesty in general renders the employment relationship intolerable and incapable of restitution. The employer also referred to caselaw such as the following: in De Beers Consolidated Mines Ltd v CCMA and others (2000) ILJ 1051 (LAC) was stated the court further pointed out that “the seriousness of dishonesty, whether it can be stigmatised as gross or not depends not only, or even mainly, on the act of dishonesty itself but on the way it impacts on their employers business” and in Kalik v Truworths (Gateway) and others (2008) 1 BLLR (LC) the Labour Court held that an employment relationship. “… broken down as a result of an act of dishonesty can never be restored by whatever amount of mitigation. The underlying reason for this approach is that an employer cannot be expected to keep dishonest workers in his/her employ. The other reason for this is to send an unequivocal message to other employees of dishonesty will not be tolerated”.

36. The applicant also argued that there was inconsistency in the exercise of discipline and much of the evidence that was presented by the applicant and her witnesses were related to allegations of inconsistency, and of grievances that had been submitted in the past, and was again raised after the applicant have been informed that she was being charged. Considering the evidence of the employer witnesses, they alleged that the principal Mr Jantjies had acted inconsistently in some instances, but those grievances the applicant specifically referred to in terms of Ms Solomon’s and Ms Rossouw, was investigated and irrespective of the outcomes it was not dependent on the principal Mr Jantjies. It was the Department as employer that exercised discipline, not the principal. However, I also note that the applicant at first stated that she withdrew initial grievances and then only raised issues of inconsistency again as noted in the letter to her head of Department, Ms Mbekwa, on 19 October 2021. This was during time that the applicant was already notified that there was a complaint and that the matter was being investigated. She then formally submitted a grievance against Mr Jantjies on 15 February 2023, that Ms Du Preez subsequently investigated. Ms Du Preez noted that the applicant never informed her that she was facing disciplinary charges. It therefore appears that the grievance was issued as a result of her being disciplined.
37. I find that although that was allegations that Mr Jantjies acted inconsistently, I have noted that the Department acted and investigated the allegations. Any consistency, if there was, can therefore not be brought against the principal Mr Jantjies, and the Department as employer acted on complaints or grievances. It should also be noted that the allegations against Mr Jantjies for not acting against Ms Rossouw related to scrips not being marked are entirely different allegations as to the charges that was brought against the applicant.

38. In Banda v General Public Service Sectoral Bargaining Council and Others (JR3273/2009) [2014] ZALCJHB 71 (26 February 2014); by AJ Snyman; Ad paragraph 61 – “An inconsistency challenge will fail where the employer is able to differentiate between employees who have committed similar transgressions on the basis of inter alia differences in personal circumstances or on the basis of other material factors. The same was stated in Southern Sun Hotel Interests (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2010) 31 ILJ 452 (LC) at para 1 it was said:
‘… An inconsistency challenge will fail where the employer is able to differentiate between employees who have committed similar transgressions on the basis of inter alia differences in personal circumstances, the severity of the misconduct or on the basis of other material factors …’

39. In G4S Cash Services v NBCRFLI and others (JR 1103/13) [2017] ZALCJHB 335 (handed down on 6 September 2017) Baloyi AJ, held that it is highly notable that over the years the Courts have exercised caution when dealing with cases where inconsistent application of discipline happened to be an issue. The Judge further held that it is trite that a plea of inconsistency should to a large extent be sparingly upheld by Commissioners and with or without invitation, a Commissioner is required to apply a discretion that is upon a consideration of all facts placed before him/her. The reason being that the raising of inconsistency cannot automatically constitute a bar to the imposition of dismissal. I therefore did not find any inconsistency in respect of the disciplinary action taken against the applicant in relation to the charges she faced,

40. Considering all of the above, I find that sanction of dismissal of the applicant Ms Amerika in these circumstances were not unreasonable or unfair.

41. The applicant also raised a procedural issue stating that the employer was acting procedurally unfair that her matter was not first referred to SAIC, as other examination regularities have been dealt with internally by the school. Ms Mbekwa, the applicants own witness, testified that in respect to the letter submitted by the applicant on the 19th of October 2021, she referred this matter to SAIC and SAIC indicated that they cannot deal with it as it relates to a teacher irregularity. The matter was then investigated by labour relations. The charges related to the applicant was not just about an examination issue, but about serious alleged misconduct, and that is not the jurisdiction of SAIC. There cannot be any procedural unfairness in referring a misconduct issue involving a teacher to the Department for investigation by Labour Relations. The required procedure to be followed in respect of misconduct by teachers is to refer the matter to the Department for investigation. There is eno procedural irregularity in this respect. The applicant also referred to delays and failure to call witnesses in the disciplinary hearing, but the applicant herself indicated that she was ready to proceed, and that the issue of the witnesses was not the responsibility of the employer, but the applicant herself and in that respect the representative failed her. There was no procedural irregularity.

42. I find that the dismissal of the applicant Ms Delmaine Amerika by the employer the WCED was procedurally and substantively fair. The application is dismissed.

Commissioner Retief Olivier

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