ELRC450-21/22KZN

IN THE ELRC ARBITRATION
BETWEEN:
ELIZABETH NOKUKHANYA MAFULEKA the Applicant
And
DEPARTMENT OF BASIC EDUCATION – KWAZULU-NATAL the Respondent

ARBITRATION AWARD

Case Number: ELRC450-21/22KZN
Last date of arbitration: 26/07/2023

Date of award: 22/11/2023

Arbitrator: Scelo V Mkhize
Education Labour Relations Council
ELRC Building, 261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
Email: gen.sec@elrc.co.za
Website: www.elrc.org.z
DETAILS OF THE HEARING
1. The matter was enrolled before me for arbitration proceedings in terms of section 191(5) (a) (iv) of the Labour Relations Act 66 of 1995 as amended (The Act). The arbitration was held on various dates being 17 December 2021, 10 and 11 March 2022, 11 and 12 May 2022, 24 June 2022, 24 August 2022, 13 September 2022, 03 and 04 November 2022, 15 and 16 November 2022, 08 and 09 December 2022, 30 March 2023, 24, 25 and 26 May 2023, 27 June 2023 and it was concluded on 28 June 2023. The arbitration was held at the offices of the Respondent at Umkhuze, KwaZulu-Natal.

2. The Applicant, Ms Mafuleka, appeared in person and she was represented by various union officials from NATU viz: Ms. L H Zibani, Ms. S S Shusha and Mr. N S Mthimkhulu. The Respondent, on the other hand, was represented by Mr. T M Mchunu, an official from the Department of Education, KwaZulu-Natal.

3. The arbitration proceedings were held in English and were mechanically recorded. The proceedings were interpreted by Mr B A Hadebe an interpreter from the ELRC.

ISSUE TO BE DECIDED

4. In these proceedings, I am required to decide whether the Applicant’s dismissal by the Respondent was procedural and substantively fair. If I find it to be unfair, I am required to determine an appropriate remedy.

BACKGROUND

5. The Applicant is Elizabeth Nokukhanya Mafuleka who was employed by the Respondent as an educator on 16 January 1991.

6. The Respondent is the Department of Education KwaZulu Natal, a governmental department dully fulfilling its mandate in terms of the Constitution and in terms of the South African Schools Act 84 of 1996, with its provincial offices at 247 Burger Street, Pietermaritzburg, KwaZulu Natal.

7. The Applicant was charged with the following allegations of misconduct:

• That on or about 21-28 November 2019 and at or near Mboza Primary School while on duty the Applicant willingly misused her position in the school to prejudice the interest of the leaners when she deprived learners of their daily meals for the period of one week. By so doing the Applicant contravened Section 18 (1) (g) of the Act.

• That on or about November 2019 and at or near Mboza Primary School while on duty the Applicant conducted herself in an improper, disgraceful, or unacceptable manner when she demanded money from the service provider (Mr A Mthembu) to pay an amount of R25 000,00 into her personal account. By so doing she contravened Section 18 (1) (q) of the Act.

• That on or about January – December 2019 and at or near Mboza Primary School the Applicant while on duty committed an act of dishonesty in that she embezzled the amount of R10000,00 from the R25 000,00 given to her by Mr A Mthembu (service provide). By so doing she contravened Section 18 (1) (ee) of Act.

8. Consequently, she was found guilty on all charges, and she was subsequently dismissed from work on 26 August 2021. At the time of her dismissal, she was employed as the deputy principal and was earning R38 214,25 plus benefits.

9. Following her dismissal, she made an appeal to the relevant authority, but the appeal was dismissed. As a result, she referred a dispute to the Education Labour Relations Council (ELRC) claiming that she had been dismissed by the Respondent both substantively and procedurally unfairly. The Respondent denies that the dismissal was substantively and procedurally unfair.

COMMON CAUSE FACTS

10. The following facts were common cause between the parties:
• that the Applicant was employed by the Respondent at Mboza Primary School on 16 January 1991.
• that she was dismissed by the Respondent on 26 August 2021.
• that she was dismissed for misconduct in respect of the charges in paragraph 7 above.
• that at the time of her dismissal she was acting as a principal at Mboza Primary School.
• that at the time of dismissal, she was earning R38 214,25.
• that she received R25 000,00 from the service provider, which was deposited into her personal account.
• that there was a rule regulating the alleged conduct in respect of charges 1, 2 and 3.

ISSUES IN DISPUTE

11. The following issues were in dispute between the parties:
• whether the Applicant was dismissed for charge 1 only or for charges 1, 2 and 3.
• whether the dismissal of the Applicant was substantively and procedurally fair, in particular whether the Applicant committed the offences in charges 1, 2 and 3.
• whether the Applicant was aware of the rule regulating conduct in respect of charges 1,2 and 3.
• whether the sanction of dismissal was appropriate in the circumstances and
• whether the Respondent acted inconsistently in dealing with the applicant’s appeal.

SURVEY OF EVIDENCE AND ARGUMENTS

Respondent’s case

First witness

12. The Respondent called six witnesses in support of its case. The first witness was Nokukhanya Hlongwane who testified as follows:

13. She is employed by the Respondent as the director of human resources. She has been employed as such since 2014. She also serves as the chairperson of the appeals committee. The duty of the appeals committee is to advise the MEC on appeal matters and then the MEC will take an appropriate decision.

14. The Applicant’s appeal was considered by the appeals committee in which she was the chairperson. The appeals committee properly considered all the information that was submitted for appeal and thereafter submitted entire bundles and information to the MEC for consideration. The MEC read the entire documents and information provided to him. Consequently, he took the decision based on what had been submitted to him.

15. She stated that the MEC made a human error in paragraph 3 of the appeal outcome, page 27 of bundle “B”, when he recorded that the Applicant pleaded guilty to charge 1. In fact, the Applicant had pleaded not guilty to all the charges that were levelled against her. This appears in paragraph 5 of the minutes of the appeal dated 30 June 2021.

16. During cross examination, she admitted that the committee recorded that three counts were preferred against the Applicant which she pleaded not guilty and was found guilty. Whereas the presiding officer in his disciplinary hearing outcome on page 29 of bundle “C”, paragraph 6.8, recorded that the Applicant was found guilty on charges 2 and 3; not guilty on charge 1. She stated that this was a result of human error on the side of the appeals committee. However, she admitted that the committee’s findings were informed by, amongst other things, what the presiding officer had recorded. She denied that the appeal was done haphazardly and that it was not given due consideration.


Second witness

17. The Respondent’s second witness was Amon Mthembu and he testified as follows:

18. He was a director of Endaweni Contracting and Trading Enterprise, the company that was contracted to supply food at Mboza Primary School. He could not recall the date on which his company was appointed, but his contract came to an end on 31 March 2020.

19. The Applicant approached him to request a donation for a school function that the school was going to have. He told the applicant that he did not have any money that he could donate, and they left the issue at that. On another day which he could not recall, he received a call from the Applicant advising him that they have agreed that he must pay the school R25 000,00 and he would not supply the school with food for six days. He agreed to the request because he thought that it was the agreement of the school governing body. He then requested the account in which the R25 000,00 would be deposited. The Applicant gave him her personal account. He asked the Applicant why she was not giving him the school account. The Applicant told him that the school account would create problems because it was being audited. He then proceeded to deposit the R25 000,00 into the Applicant’s personal account as requested. In this regard, he produced the proof of payment appearing on page 16 of bundle “A”. The Applicant had told him that he would recover his R25 000,00 by making a claim from the government, which he did.

20. Later, he was contacted by Mr Mthembu who was employed as a clerk at Mboza Primary School. Mthembu told him that he heard that he had deposited money and asked how much it was. He told Mthembu that the money he deposited was R25 000,00. Mthembu then requested him to write a letter in that regard, which he did, and the letter appears on page 15 of bundle “A”. He confirmed that the Applicant was the principal at that time and that he had a good working relationship with her.

21. Under cross examination he disputed that when the Applicant requested the donation, she requested a cow and not money. He admitted that he did not know what the money was used for.

Third witness

22. The Respondent’s third witness was Petrose Zwelihle Mlambo who testified as follows:

23. During 2018/2019 he was the chairperson of the school governing body. He had been the chairperson for six years. He was familiar with the role and duties of the school governing body. Some of these duties are as follows: to assist the principal, to assist with financial control and trustworthiness. The school also had a finance committee.

24. He knows the Applicant and he had a good working relationship with her. However, there were instances where the Applicant was not transparent in her decision making. He was also aware of the charges that were levelled against the Applicant.

25. On 30 November 2019, the Applicant telephoned him to advise that there was money that was deposited by the supplier into her personal account and the money was R15 000,00. However, they later discovered that the money that was deposited was not R15 000,00 but R25 000,00. They became aware of this when they thanked the service provider for the donation he had made. The service provider told them how much the money was and that it was not a donation, but the money for six days food supply.

26. As a result, the finance committee arranged a meeting with her to discuss this issue. However, she did not co-operate with the finance committee. She said the finance committee was not educated; she wanted to meet with someone better than the finance committee. Consequently, they decided to write a letter to the department of education to intervene. The first meeting with the Applicant was on 01 December 2019. He referred the council to page 10 of bundle “A” which were minutes of meeting of the school governing body held on 04 February 2023. He also referred the council to page 8 of bundle “A” which was the letter that the governing body sent to the department of education about this issue.

27. During cross examination he confirmed that the school received R15 000,00 from the Applicant. The receipt of this money was first reported to him by the Applicant on 30 November 2019, and it was formally reported in the governing body meeting held on 02 December 2019. From the R15 000,00 they only used R11 000,00 to buy a cow for the school function. He admitted that the school function took place on the 04th of December 2019. He was referred to page 21 of bundle “B” which is a confirmation of goods received from the supplier and he confirmed that the signature that appeared under neath was his signature. He also confirmed that at the school function there was also decoration and a tent. He disputed that the balance from the R15 000,00 after paying for the cow was used for gifts, decoration, and the tent. He disputed the invoice for gifts, decoration and dishes appearing in page 24 of bundle “B”.

Fourth witness

28. The Respondent’s fourth witness was Khumbulani Siphiwe Dlamini who testified as follows:

29. He is employed by the Respondent at Mboza primary school as a deputy principal since 2018. During 2019, the school principal was off sick, and the Applicant was acting as the principal. There was money that was received from the supplier by the Applicant. The Applicant told the school management committee that she had received R15 000, 00 from the supplier for the school function. She said the same thing in the staff meeting as well as to the school governing body meeting. However, when the principal was thanking the supplier for the donation of R15 000, 00, the supplier told the school principal that in fact, the money donated was not R15 000, but R25 000,00. He knew this because he overheard the principal when he was talking to the supplier because his office was next to the principal’s office. Shortly afterwards, the supplier came to them and Mr Mthembu. Mr Mthembu asked the supplier what had happened. The supplier explained to them. Subsequently, the supplier was called in to a meeting of the SGB and finance committee to explain this issue. The grade R and 7 function was held on 06 December 2019.

30. Under cross examination, he admitted that he was aware that the Applicant was asking for donations from different stakeholders. He also admitted that the following functions were held at the school viz: Heritage Day, dress up day, grade R and grade 7 farewell, and closing/year end function. He stated that he could not remember whether learners were asked to contribute for each of these functions, except grade R and 7 function. He disputed the Applicant’s version that for the year end functions no learners’ contributions were made but the Applicant requested donations from stakeholders. He also disputed that the Applicant gave him R15 000,00 to buy a cow, but R11 000,00.

Fifth witness

31. The Respondent’s fifth witness was Elsie Lindeni Vumase who testified as follows:

32. She was employed by the Respondent as the chief food handler in 2019. Her duties were to place orders for food, give out food to be cooked, monitor whether food was clean, monitor whether learners are fed correctly and doing stock control for each day till the end of the month.

33. She knows the applicant very well and the Applicant was her supervisor. She regarded the Applicant as her role model because of the way she was managing them. In fact, the Applicant regarded her as her child because she was not discriminating her. Therefore, she had no reason to lie about the Applicant.

34. She stated that at the end of October 2019, the food supplier, Mr Mthembu came to their school to collect his invoices. The Applicant instructed her to ask money for the cow for the Childrens’ function from the supplier. She told the Applicant that she was scared to do that. Eventually, the Applicant spoke to the supplier herself in her presence. However, the supplier told the Applicant that he did not have money. Then the Applicant told the supplier to at least not bring food for six days so that he will be able to give them the money for the school function. The supplier agreed to the Applicant’s request. Consequently, the Applicant instructed her to calculate food supply for 6 days, which she did. She then made the calculations and discovered that each child was equivalent to a food supply of R2,60 per day. She then multiplied that by the number of learners which was 1604 and multiplied that by six days which equated to R25 000,00. She decided to keep this to herself.

35. In January 2020, the Applicant told her that it had been said that the Applicant sold food for the school. In this regard she referred the council to the record of a telephone conversation between her and the Applicant in bundle “A1”. She stated that she made the recording because she knew that there was a case that had already been started. She thought that the Department of education would call her. She had no intention to record, but it was recorded by mistake. When she had finished speaking to the Applicant, she thought she should save the recording.

36. During cross examination she could not dispute that page 16 of bundle “B” contained the list of food that was delivered in November 2019.She disputed that she intentionally recorded the conversation between her and the Applicant. She stated that her cell phone automatically recorded the conversation.

Sixth witness

37. The Respondent’s sixth witness Nicholas Velaphi Mthembu who testified as follows:

38. He was employed by the Respondent as an administration clerk. During 2019, there was a parents’ meeting that was called where a decision was taken that the school would hold a farewell function for grade R and 7. In this meeting it was resolved that each learner from grade R would contribute R400,00 towards the function and each learner from grade 7 would contribute R200,00 towards the function. At that time there were 172 learners from grade R and 191 learners from grade 7. The method for collecting this money was that each class teacher from these grades would collect the money and would bring the money and the list to him for recording. He would then provide a receipt to that teacher and record the money accordingly. He produced an example of a list from grade R (d) marked bundle “A2”. The list contained the names of learners and the amount that they contributed. He stated that there were four classes from grade R and four classes from grade 7.

39. The amount that was collected was given to the Applicant. He could not recall as to the exact amount that was given to the Applicant, but it was plus minus R55 000,00. He stated that other than the function for grade R and 7, there was another farewell function where a cow was slaughtered.

40. During cross examination, he initially admitted that there was a farewell function where a cow was slaughtered. But later, he stated that there was only one function held in December 2019; no other function was held. He disputed that in one of the farewell functions he received a certificate. He stated the certificate was given to him, but he refused to take it and this certificate was not given in a function.


Applicant’s case

First witness

41. The Applicant was the first witness to testify in support of her case and she testified as follows:

42. She was employed by the Respondent in 1991. When she was dismissed, she had been in the Respondent’s service for 30 years. She had 10 years as a post level 1 educator, 8 years as the departmental head and 12 years as the deputy principal. However, when she was dismissed, she was acting as a principal. In the past 30 years that she had with the Respondent, she never had any disciplinary record for misconduct, let alone for financial misconduct.


43. In 2018, she acted as the principal in the later part of the year, from October to December 2018. In 2019, there were two deputy principals, the Applicant and Mr Dlamini. However, Dlamini was new at the school. Therefore, the circuit manager had no choice but to appoint her again to act as the principal. She acted from January to December 2019.


44. At the time when she was acting as the principal in 2019, she organized various functions at the school such as opening prayer, Heritage Day, carrier day, grade R and 7 function and price giving day. All these functions were hosted successfully even though the school had not budgeted for these functions and the school did not have the money. This was because she organized fund raising to fund these functions. One of the fund-raising programs she had initiated was the issuing of donation letters to social partners. In this regard, she referred to pages 4 and 5 of bundle “B1”. These donation letters were related to the function that was held on 04 December 2019. The grade R and grade 7 function was held on 27 November 2019. The difference between grade R and 7 function and the year end function was that in the former, only the parents for the relevant grades who made contributions attended the function. Whereas in the latter, there were no contributions that were made, and all parents were invited to attend the function. She disputed that the grade R and 7 function was the only function that was held towards the end of the year.

45. She stated that the contributions for grade R and 7 function were R80,00 per child. The money received from these contributions was used for graduation gowns, photographs, and meals. In this regard she referred to the minutes of the meeting that was held on 13 September 2019. In this meeting the parents and all who attended agreed to R80.00 contributions towards the grade R and 7 function. She disputed the evidence of Mthembu that grade 7 had 191 learners and that they were contributing R200,00 per leaner. She disputed also that grade R had 172 leaners and that they were contributing R100.00 per learner. The money that was used for the year end function was R25 000,00 received from the donation and R2000,00 that was withdrawn from the school account.

46. Also, she disputed the list of learners appearing in bundle “A2” which was provided by Mthembu, the admin clerk. She stated that this list never existed, and it was a fabrication. This was so because when this list was compared to the list in bundle “B1” page 9 and 10, which was the list of learners who were still at Emgobeni creche in 2019, there were two leaners who appeared in both lists viz: Lubanzi Gumede and Aphiwe Gumede. It was therefore impossible that these learners would have been at the creche while at the same time they were in grade R. Furthermore, these learners did not qualify to be in grade R because Aphiwe was three years old, whereas Lubanzi would not have turned six years old before June 2019 as required by the admission policy in page 7 of bundle “B1”.

47. She referred the council to pages 3, 4, 5 and 6 of bundle “B1”. These were the photographs which were taken during the grade R and 7 function. She stated that Mlambo, Dlamini and Mthembu were present in both functions. As the chairperson of the SGB, Mlambo had something to say on both functions. Mthembu on the other hand received a certificate of appreciation during the year end function. She averred that Mlambo, Mthembu and Dlamini conspired to get rid of her in order to pave the way for Dlamini who occupied the position of the acting principal after her.

48. She disputed that there was any day on which the learners did not receive their daily meals. In this regard she referred the council to the school feeding register in page 3 of bundle “B”. She stated that they only adjusted the amount of food to be cooked to prevent food being wasted. She disputed Vumase’s evidence that they adjusted food because there was not enough food for learners. She referred the council to page 23 of bundle “B”, which was Vumase’s attendance register. She stated that Vumase, the chief food handler, worked every day in November 2019 and she worked full hours. She also referred the council to pages 15 to 19 of bundle “B”. She stated that these were the orders for November 2019 which confirms that food was delivered. She referred also to page 21 of bundle “B”. She stated that page 21 is the document confirming food received for November 2019. This document was signed by the Applicant, Mthembu and Mlambo. With reference to the presiding officer’s report on page 28 of bundle “C”, she stated that she was found not guilty of charge 1 during the disciplinary enquiry. Therefore, paragraph 3 of the outcome of appeal in page 27 of bundle “B”, which stated that she pleaded guilty to charge 1 was incorrect.

49. On the second charge, she stated that she asked for a donation of a cow from the service provider for the year end function. On a particular day when she was at the funeral, she received a telephone call from Mr Mthembu, the service provider, asking for the bank account where he could deposit the money. Consequently, the sum of R25 000,00 was deposited into her account and became clear on the following day. She then telephoned Mlambo, the chairperson of the SGB and advised him that Mthembu had donated R15 000,00. Out of this R15 000,00 he gave Mr Dlamini R11 000,00 for the cow. The balance was used to pay the boys who were going to slaughter the cow, as well as for transport and mobile fridge. She did not disclose the whole amount because she wanted to use the R10 000, 00 as a surprise for thanksgiving to teachers, SGB members, school management team and certain parents in recognition of their good work during the year. The money was used to buy gifts for thanksgiving. The other money was used to hire a tent, decoration, and dishes. In this regard, she produced an invoice from R T Khumalo dated 04 December 2019 in respect of the tent, decoration, and dishes. The total amount for the invoice was R2390.00. She also produced another invoice from M M Mabika dated 02 December 2019. This invoice was in respect of gift items for the year end function. The total amount for this invoice was R7610,00.

50. On the sanction, she testified that she had been working for the Respondent since 1991. She had an unblemished disciplinary record. She was also about to retire from work.

51. During cross examination the Applicant admitted that she was aware of legislation called Personal Administration Measures. She was also aware of the functions of the deputy principal mentioned in the Act. However, in her case, the principal had told them that he was the only one to deal with school finances. She disputed that she received training, but only an induction. But she admitted that the aim of induction is to equip an employee about his or her duties.

52. She stated during grade R and 7 function, leaners paid some contributions. Grade Rs were paying for gowns and grade 7 were paying for a school photograph. The contribution was R80,00. The total contributions were plus minus R29 600,00. This money was used for gowns, cakes, food, and the cow. She admitted that at the year-end function the total amount used was R27 000,00 being the R25 000,00 donated by the supplier and R2000,00 received from the SGB. She could not dispute that the school had a procedure on how to receive money and that the school had a bank account in which the money could have been deposited. She maintained that she was not being dishonest by failing to disclose part of the money received from Mthembu.

53. She denied the version of Mthembu and Vumase that Mthembu provided food for 15 days because the Applicant had asked him not to deliver food for 6 days. She stated that she did not know why the Respondent’s witnesses would lie about her.

Second witness

54. The Applicant’s second witness was Thandeka Mhlongo who testified as follows:

55. During 2019, she was employed at Mboza Primary School as the chef. Vumase was responsible for giving them food to cook daily. There was no day in November and December 2019 where they did not cook food for the children. There was also no day where Vumase gave them insufficient food to cook. She also never heard of any complaint that the food was not sufficient. She was always present when the supplier brought food to the school. There was never a day in November and December 2019 where the supplier brought insufficient food.
56. She also testified that during 2019, her child, Beatrice Mhlongo, was doing grade R at the same school. However, her child was not on the list of children who were allegedly doing grade R in 2019 according to Mthembu’s evidence. She also paid for her child for the grade R and 7 function and she paid R80,00. She also attended the function as it was only attended by grade R and 7 parents. There was also a year-end function which was held on a different day in the same year, and she attended that function.

57. During cross examination she admitted that counting food was not one of her duties and she would not have known as to how much food was in the storeroom. She was also not counting food upon delivery. She could not produce proof that her child paid for the grade R and 7 function. When asked how she would know that it never happened that learners did not eat since she did not know how many learners may were to be fed; in response she stated that she knew because learners would even come to eat even when they were no longer coming to school. She stated that she knew that a cow was slaughtered during the year end function because she saw the meat. But she could not recall whether the cow was slaughtered at the grade R and 7 function.

Third witness

58. The Applicant’s third witness was Nompumelelo Ntobanyana Gumede who testify as follows:

59. During November and December 2019, she was employed at Mboza Primary School as a grade R educator. There was never a time during November and December 2019 where children did not get food or where they got less food. Instead, they got more food.

60. She stated that in the same year, there was a grade R and grade 7 function as well as the year end function. For the grade R function, the learners were contributing R80,00 per leaner. This money was collected in the classrooms, and they would write a list of those who had paid and submit it to the admin clerk. Only parents for grade R and 7 were invited to attend the function. She disputed the list and the amount of R100,00 which was allegedly paid by learners in bundle “A2”. She stated that although she could not recall whether the children in the list were doing grade R, Gift Ngwenya, appearing as number 17, was her neighbor’s child and he only attended grade R in 2020. The amount of R100,00 emanated from one of the teachers who came to her to ask how much the children were paying for the function in 2019. As she could not recall, she estimated R100,00. She also could not recall the date on which this function was held, but she referred to the photographs appearing in bundle “B1” pages 3, 4 and 5.

61. She stated that the year-end function was held on a different date not on the same date as grade R and 7 function. Also, at the year-end function, all the parents were invited to attend the function as well as SGB members. The difference between the two functions was that in the grade R and 7 function, the cow that was slaughtered was bought by the admin clerk and it was slaughtered by the parents. Whereas in the year end function, the cow was bought by the Deputy principal, K S Dlamini. The grade R and 7 function also did not have gifts and the SGB members were not invited. Whereas in year end function the SGB members were present, and gifts were presented. She could not recall the date for the grade R and 7 function, but it was held in November. The year end function was held towards the end of November. She attended the year-end function, and she received a certificate. The same certificates were received by other teachers as well.

Fourth witness

62. The Applicant’s fourth witness was Khiwane Lawrence Khumalo who testified as follows:

63. He was the chairperson of the SGB at Mboza primary school. He initially started as the chairperson for a period of three years. Thereafter, he was appointed as the deputy chairperson for a further period of three years. He could not clearly recall the exact period in which he was the chairperson, but he exited when the school was taken over in terms of section 21. Besides being the chairperson and deputy chairperson, he is also an induna under Mashabane Traditional Authority. Also, he is an elder at church and a businessman. His business was catering and marquee suppliers. He also serves as a committee member for a local funeral parlor. He knows the Applicant as a very well-behaved person and whose is loved by the community members.

64. In 2019, he was asked by the school to do catering and to provide the school with the tent and dishes for the grade R and 7 function as well as the year-end function. The persons who asked him to do the job was the Applicant accompanied by the school clerk and Ntombifuthi Khumalo. In this regard he referred to the photographs in pages 3,4,5 and 6 of bundle “B1”. He also stated that he was further asked to provide the school with the tent, decoration, and dishes for the year end function. In this regard, he produced the invoice on page 24 of bundle “B” which was made out to Mboza Primary School. According to this invoice, which was dated 04 December 2019, the school paid the sum of R2390,00 for the tent, decoration, and dishes. The school could not pay him in November, but on the 04th of December 2023. He could not recall the exact date of the year end function.

65. During cross examination, it was put to him that the invoice on page 24 of bundle “B” should have been written under his company name not R J Khumalo. In response he stated that R J Khumalo is his wife; they work together. When he was asked as to where the invoice for the grade R and 7 function was, he stated he did not give out any invoice because it was the parents who had asked him to do the work, not the school. However, he could not recall which parents had asked him to do the decoration. He also could not provide proof of how the parents paid him. He stated that there was nothing written down; they paid him cash. But he said the parents paid him R1000,00. He admitted that if someone could say that the parents paid him more that person would not be telling the truth. He stated that the grade R and 7 function was in November and the year-end was on the 04th of December 2019.

Fifth witness

66. Ntombifuthi Nokuthula Khumalo was the Applicant’s fifth witness and she testified as follows:

67. She is currently working at Mboza primary school under ABET and she stays one kilometer from the school. She was also the member of the school governing body for about two terms viz: 2015 to 2018 and 2018 to 2021. In the first term she was a deputy secretary and in the second term, she was the secretary.

68. During 2019, the school had the following functions: opening prayer, Heritage Day, carrier day grade R and grade 7 function and the year end function. The grade R and 7 function was held in November 2019, whereas the year end function was held in December 2019. She was aware of the donation request letters at pages 4 and 5 of bundle “B”. The Applicant told them about these letters in a couple of meetings. There was no way that the chairperson, Mlambo, could not have known about these letters because he was present in the meetings where the Applicant told them about it.

69. The money for grade R and 7 was paid by the parents, whereas the money for the year end function was donated by the supplier. However, the school further added an amount R2000.00. She was part of the meeting where the decision on how the money that was donated by the supplier would be used. In the meeting they agreed that Mr Dlamini would buy the cow. As a result, they gave him R11 000,00. Therefore, Dlamini went to buy a cow with Mr Mlambo, Mrs Dlamini and Mrs Nhlenyama. They intended to spend R6000,00 to buy other small things. However, Dlamini called to say that they need more money for boys who were slaughtering the cow, as well as paying for cold room, petrol and chopping of meat. Consequently, the Applicant withdraw R4000.00 from her personal account in front of her and she gave it Dlamini. Therefore, the total amount given to Dlamini was R15 000.00. In the meeting where they discussed the money donated by the supplier, nobody ever advised that Applicant that the money should have been deposited in the school account. But instead, the chairperson thanked the Applicant about her trustworthiness.

70. She stated in the year end functions, various gifts were given to SGB members, teachers, non-teaching staff, School Management Team, children who performed well and parents who were cooking traditional food during Heritage Day. The gift that she received was a traditional tray. They did not ask the Applicant where she got money to buy these gifts. But looking at the number of gifts and their prices, it was very likely that the Applicant used the R10 000,00 she was alleged to have misappropriated to buy these gifts. The prices for traditional trays were ranging from R700 to R550,00 depending on the size; and there were so many people who received the traditional tray. It was also very likely that the Applicant also used this money for the tent, decoration, and the dishes. The decoration was provided by Mr Khumalo and his wife Rejina. She was present when the Applicant was asking Mr Khumalo to supply the school with the tent, dishes, and the decoration for the year end function.

71. She averred that as an SGB member and the community member she never heard any complaints about children not getting their food in 2019. Even her child never said anything of that nature. Most people in the area are unemployed and their children rely on the food that is supplied by the school to such an extent that children would go to school without having eaten anything. Knowing her community, if there was a time where the children did not get their food, the community would have complained as they did when there was a problem with exercise books.

72. She testified that she believes that the SGB had a vendetta against the Applicant. This was so because in 2014, there was a plot by SGB members and the principal to get rid of the Applicant from the school. The plot emanated from the investigations about the misappropriation of school funds which was posted by a concerned parent on face book. They suspected that it was the Applicant who organized the investigations. This led to a strike where school gates were closed. She could even remember when they were writing placards that the principal’s girlfriend told her to write that “the Applicant must go; they don’t need her”. Initially, she was part of the said plot. But later, she realized that what they were doing to the Applicant was wrong. As a religious person she approached the Applicant and repented.

73. During cross examination it was put to her that during the disciplinary enquiry, she never said anything about the plot to get rid of the Applicant, about the principal’s girlfriend instructing her how she should write a placard, that Dlamini asked her to assist them to get rid of the applicant, that the SGB alleged that the Applicant was disturbing learning or functioning of the school and that she was a religious person. In response, she stated that at the hearing she was responding to what she had been asked; she was never asked the questions the way she was being asked at the arbitration. She denied that she was coached on how to answer this question.

74. She conceded that grade R and 7 function was a school function, but it was paid for by the parents. Likewise, the year-end function was also the school function, but it involved learners. In all the functions that were held at the school in 2019, the only functions where cows were slaughtered were grade R and 7 function and the year-end function.

75. She conceded that the school had a financial committee. The members of the said committee were Mr N V Mthembu, Mr P Z Mlambo and Mr Nyawo. She knew the function of the financial committee, but nobody told them that one of the responsibilities of the financial committee was to do fund raising. She stated that she did not know that the money should have been deposited in the school account. But she conceded that there were certain advices that they received from the Applicant about the school finances.

76. About the year-end function, she stated that they did not plan for this function. If someone says they planned, he or she would not be telling the truth. She admitted that when they were giving Dlamini the money for the cow, he did not sign any confirmation for receipt. Therefore, there was no tangible evidence that they gave him R15 000.00. She conceded that it was possible that 50 or 500 children were no longer coming to school in November 2019. She conceded also that there are things that might come to her ears, but which are not true such as the money deposited in the Applicant’s account. Therefore, what she heard is not important if she does not have evidence. She could not dispute that according to the school policy school monies must be deposited into the school account.


CLOSING ARGUMENTS

77. Both the Applicant’s and the Respondent’s representatives submitted written closing submissions. I will not repeat their submissions herein, but I have considered their submissions in my analysis below.

ANALYSIS OF SUBMISSIONS

78. In these proceedings I am required to decide whether the dismissal of the Applicant by the Respondent was procedurally and substantively fair, in particular, whether the Applicant committed the offences in paragraph 7 above. If I found that the Applicant committed the aforesaid offenses, I am required to decide whether dismissal was an appropriate sanction in the circumstances. I am further required to decide whether the Applicant’s dismissal was procedurally fair, in particular, whether the Applicant was given a fair hearing.

79. Section 192 (2) of the Act provides that if the existence of dismissal is established, the employer must prove that the dismissal is fair. In the present case, the dismissal is not in dispute, therefore the Respondent bears the onus to prove that the dismissal of the Applicant was both procedurally and substantively fair.

Whether dismissal was substantively fair

80. In terms of section 188(1) of the Act, a dismissal that is not automatically unfair, is unfair if the employer fails to prove that the reason for the dismissal is a fair reason related to the employee’s conduct or capacity; or based on the employer’s operational requirements, and that the dismissal was effected in accordance with a fair procedure.

81. In terms of item 7 of the Code of Good Practice: Dismissal, Schedule 8 to the LRA (the Code), in order for a dismissal to be substantively fair, an employee:

• must have contravened the rule or standard regulating the conduct in, of relevance to, the workplace.
• the rule or standard must have been valid or reasonable, the employee must have been aware of the rule or standard, the rule or standard must have been applied consistently across all employees in the workplace and dismissal must have been an appropriate sanction for the contravention of the rule.

82. In the present case there were no issues about the inconsistent application of the rule. The only issues in dispute were whether the Applicant breached the rule, in particular, whether the Applicant committed the offenses in paragraph 7 above and whether the Applicant was aware of rules regulating the alleged conduct.

83. Another issue in dispute was whether the Applicant was dismissed for all the charges in paragraph 7 above or for only charges 2 and 3. I will first deal with this question before I can deal with the questions in paragraph 87 above.


Whether the Applicant was dismissed for all the charges in paragraph 7 or for only charges 2 and 3


84. The Applicant’s contention was that the chairperson of the disciplinary enquiry only found her guilty on charges 2 and 3 viz: that she demanded money from the service provider (Mr A Mthembu) to pay an amount of R25 000,00 into her personal account and that she committed an act of dishonesty in that she embezzled the amount of R10000.00 from the R25 000,00 given by Mr A Mthembu, the service provider. Therefore, her appeal to the MEC was only based on these two charges. But the MEC recorded that the Applicant pleaded guilty to the charges, which was not true according to the Applicant. As a result, the MEC found that the chairperson was correct in arriving at the finding of guilty and the sanction imposed. On the other hand, the Respondent contended that the MEC made a human error in his findings. In fact, the Applicant was found guilty and dismissed for all the three charges in paragraph 7 above.

85. In my view, the Applicant was dismissed for charges 2 and 3 only. I say so because the MEC based his findings and clearly confirmed what the presiding officer had found. The presiding officer found the Applicant guilty on charges 2 and 3 only, but not guilty on charge 1. In Pahlanga v Petroleum Oil and Gas Corporation of South Africa (SOC) Ltd and Others (2022) 43 ILJ 212 (LC) at paragraph 36, it was held that it is trite that an employer bears onus of justifying the fairness of a dismissal on the basis of the reason given for dismissal. In Palluci Home Depot (Pty) Ltd v Herskowits (2015) 5 BLLR 484 (LAC) at 43, it was held that the commissioner misconstrued the true nature of the enquiry and his mandate in connection therewith by making a determination on aspects of the charges, which neither the chairman of the disciplinary hearing nor the employer relied upon at the time of dismissal.

86. In light of the above, I am of the view that the Applicant was dismissed for charges 2 and 3. Therefore, charge 1 is irrelevant for the purposes of my mandate and I will accordingly make no finding on it.

Whether the Applicant is guilty of charges 2 and 3 in paragraph 7 above.

87. There were disputes of facts on whether the Applicant is guilty of charges 2 and 3. In relation to charge two, the main issue is whether the Applicant demanded the sum of R25 000,00 from the service provider and that the money should be paid into her personal account. The Applicant denied that she demanded the service provider to pay the sum of R25 000,00 into her personal account. Her version was that she only asked for a donation from the service provider and the service provider volunteered to pay the R25 000,00 and to pay it into her bank account. The Respondent’s version on the other hand was that it was the Applicant who approached the service prover and demanded that he should not provide food for certain days. Instead, he should pay the money equivalent to the food that he would have provided to the Applicant, through her bank account.

88. In relation to charge three, the main issue is whether the Applicant committed an act of dishonesty by embezzling the amount of R10 000,00 from the R25 000,00 received from the service provider. The Applicant also denied these allegations. Her version was that she used the R10 000,00 to buy gifts and to pay for things such as the tent, decoration and dishes for the year end functions which was held in December 2019. She intended this to be a surprise, hence she did not disclose this R10 000,00 to the governing body members. On the other hand, the Respondent denied that there was ever a year end function, but only grade R and 7 function which was held in November 2019.


89. In SFW Group Ltd and Another vs Martel et Cie and Others 2003 (1) SA 11 (SCA), it was held that in order to come to a conclusion on the disputed facts the court must make findings on the credibility of various factual witnesses, their reliability and probabilities. In Sasol Mining (Pty) Ltd vs Commissioner Ngeleni & Others (2011) 4 BLLR (LC), it was held that the proper approach when resolving factual dispute is to make findings on the credibility and reliability of witnesses, which in turn entails finding on the witnesses’ candour, demeanor, contradictions in their evidence and an assessment of the probability of their testimony. In Makuleni v Standard Bank of South Africa Ltd and Others (2023) 4 BLLR 283 (LAC), it was held that a finding that the witnesses “had no reason to lie” does not affect the credibility or probability of their version. Against this backdrop, I now turn to dealing with the credibility and probability of the witnesses’ testimony in relation to the two charges.

90. In relation to charge 2, the Respondent called two witnesses viz: Amon Mthembu and Elsie Vumase. Mthembu testified that he was contracted to provide food at the school. One day the Applicant approached him to request a donation for a school function. He told the Applicant that he did not have money that he could donate. On another day, which he could not recall, he received a telephone call from the Applicant advising him that they have agreed that he must pay R25 000,00 instead of supplying the school with food for six days and he agreed. He then asked for the bank account where he would deposit the money. The Applicant gave him her personal bank account number. When he questioned why the Applicant was giving him her personal bank account instead of the school account, the Applicant told him that the school account would create problems. The Applicant further told him that he would recover this money by making a claim to the Department, which he did. He disputed that when the Applicant was asking for the donation, she asked for money to buy a cow.

91. Vumase testified that at the end of October 2019, the service provider came to the school to collect invoices. The Applicant then asked her to go to the service provider and ask money for a cow for the Childrens’ function. She told the Applicant that she was scared to approach the service provider. Eventually, the Applicant spoke to the service provider herself in her presence. The service provider told the Applicant that he did not have money that he could donate with. Then the Applicant told the service provider that at least he must not bring food for six days and give them money for the school function. The service provider agreed to this request.

92. In my view there are material contractions on Mthembu’s and Vumase’s versions. The first contradiction is that Mthembu denied that the Applicant asked for a donation of money to buy a cow. Whereas according to Vumase, the Applicant had asked for money to buy a cow for the Childrens’ function. The second contradiction was that according to Mthembu, he only agreed to the donation telephonically after receiving a call from the Applicant advising him that they have agreed that he must pay R25 000,00 and not supply food for six days. However, according to Vumase, Mthembu agreed to the R25 000,00 when the Applicant was speaking to him face to face. The third contradiction was that according to Mthembu, he did not supply food for six days. However, according to the delivery note in page 16 of bundle “B”, which was admitted by Vumase, the service provider supplied the full portion of food he was required to supply for November 2019. This was delivered on 31 October 2019. At the bottom of page 16 the following was stated “All goods received in full and sufficient to benefit 1610 learners for 21 days at R2,65 per serving”.

93. I am mindful of Vumase’s evidence about the recorded conversation between her and the Applicant. Despite the Applicant’s explanation about the record, in my view, the delivery note, which was stamped by the service provider, is credible evidence that food was supplied for the period in question and has more weight than the recorded conversation. I say because there were internal contradictions on Vumase’s evidence about the recording. She gave three reasons for recording the conversation between her and the Applicant. She initially stated that she recorded the conversation because she knew that there was a case that had already started. Later, she said she recorded the conversation by mistake. Again, she said her phone automatically recorded the conversation between her and the Applicant. In light of these contradictions, Vumase’s evidence is unreliable.

94. On the other hand, the Applicant was very consistent with her version regarding charge 2. She maintained that she never demanded money from the service provider nor asked the service provider to deposit money into her bank account. She merely asked for a donation of a cow from the service provider. When she was at the funeral, she received a telephone call from the service provider asking where he could deposit the money and she gave him her personal account. Then the service provider deposited the money.

95. In the circumstances, I am of the view that the Applicant’s version is more probable than the Respondent’s version. There was no credible evidence to suggest that it was the Applicant who demanded the amount of R25 000,00 from the supplier and that such money must be deposited into her personal account. I accordingly find the Applicant not guilty of charge two.

96. Regarding charge 3, the Respondent alleged that the Applicant acted dishonestly while on duty in that she embezzled the amount of R10 000,00 from the R25 000,00 received from Mthembu, the service provider. The Applicant’s version was that she used this amount to buy gifts for the year end function, as well as to hire a tent, dishes, and decoration. The Respondent denied that there was any other function other than the grade R and 7 function. In this regard the Respondent called various witnesses. In order to decide whether Applicant embezzled the R10 000,00, as alleged, I am of the view that it would be important to first decide whether grade R and 7 function and the year-end function was one and the same function or separate functions.

97. The Applicant’s version was that these were two separate functions. The grade R and 7 function was held on 27 November 2019, whereas the year end function was held on 04 December 2019. In this regard, she produced photographs in bundle “B1” pages 3,4,5 and 6 which were taken from the grade R and 7 function. These photographs clearly show that they were taken on 27 November 2019. She further produced an invoice for the hiring of the tent, decoration and dishes dated 04 December 2019. The amount of this invoice was R2300,00. This invoice was corroborated by Mr Khumalo who testified that he was asked bby the Applicant to provide this service. This was further corroborated by Ms Ntombifuthi Khumalo who testified that she was present when Khumalo was asked to provide this service. She further produced an invoice of R7610,00 dated 02 December 2019. She stated that this invoice was for gifts, and it was from a certain MM Mabika. Mabika did not testify in the proceedings. In my view, photographs have more evidential value because they speak for themselves because they depict the date on which they were taken.

98. On the other hand, the Respondent’s third witness Mr Mlambo testified that on 30 November 2019, the Applicant telephoned him to advise him that an amount of R15 000,00 had been deposited by the supplier into her personal account. As a result, a financial committee meeting was arranged for the 01 December 2019. The issue of the money that was deposited into the Applicant’s personal account was formally reported to the governing body on 02 December 2019.

99. In my view, if according to the photographs, there was a function on 27 November 2019 and the Applicant advised Mlambo on 30 November 2019 about the money that was deposited into her account. The probability is that the money that was deposited into the Applicant’s account could not have been intended to be used in the function that was held on 27 November 2023, but for another function. It is therefore highly probable that there was another function that was held after the 27th of November 2019 and that function could have been the year end function. On this basis alone I am of the view that the grade R and 7 function and the year end function were separate functions. If that is a case, it is highly probable that the Applicant used the R10 000,00 on that function as she alleged. In fact, the Applicant’s version to that effect was that grade R and 7 and the year-end function were separate functions. I the circumstances, it is highly improbable that the Applicant embezzled the money as alleged by the Respondent and I am of the view that the Applicant is not guilty of charge three.


100. I light of my findings above; I find that the dismissal of the Applicant by the Respondent was substantively unfair.



Whether the dismissal was procedurally fair

101. In Avril Elizabeth Home for the Mentally Handicap v CCMA and Others (2006) 27 ILJ 1644 (LC), it was held that in order to comply with the fair procedure, the employer is merely required to conduct an investigation, give the employee or his representative an opportunity to respond to allegations after a reasonable period and thereafter to take decision and give the employee notice thereof. In the present case, it was common cause that the Applicant was dismissed following a properly constituted disciplinary enquiry. The parties did not lead any other evidence to suggest otherwise. I therefore find that the Applicant’s dismissal was procedurally fair.

REMEDY

102. In terms of section 193 of the Act, an arbitrator who find the dismissal unfair must require the employer to re-instate or re-employee the employee unless the employee does not wish to be re-instated or the circumstances are such that the continued employment relationship would be intolerable. In the present case the Applicant wants to be re-instated and there was no evidence to suggest that the employment relationship has broken down. I am therefore of the view that an order re-instating the Applicant retrospectively would be appropriate in the circumstances. However, I am of the view that the Applicant should not be entitled to a full backpay as result of the retrospective re-instatement. I say so because there was a delay in finalizing these proceedings which was largely caused by the Applicant. The delay was caused by the Applicant changing her representatives on two occasions. In Msikinya v GPSSBC (2016) 37 ILJ 1457 (LC), the employee’s delay in finalizing the arbitration justified the reduction of backpay to be awarded to an employee. I am therefore of the view that twelve months’ backpay would be appropriate in the circumstances.

103. The Applicant was dismissed on 26 August 2021. At the time of her dismissal, she was earning R38 214,25 per month. As a result of the retrospective effect of the re-instatement, the Respondent must pay the Applicant the sum of R458 571,00, (calculated as follows: R 38 214.25 X 12 = R 458 571.00)

AWARD

104. The dismissal of the Applicant, Elizabeth Nokukhanya Mafuleka, by the Respondent, the Department of Basic Education, KwaZulu Natal, was substantively unfair, but procedurally fair.

105. The Respondent is hereby ordered to reinstate the Applicant on the same terms and conditions of employment that existed prior to her dismissal. The Respondent must report for duty at Mboza Primary School on 17 January 2024.

106. The Respondent is further ordered to pay the Applicant the sum of R458 571,00 being the backpay in terms of paragraph 106 above.


Scelo V Mkhize - Panelist