ELRC51-23/24GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL (ELRC)

(GAUTENG PROVINCE)

AWARD

Commissioner: Amos Mthimunye
Case No. ELRC51-23/24GP
Date of the Award: 12 December 2023


IN THE DISPUTE BETWEEN:

MILTON M. SEOPA APPLICANT

and

GAUTENG DEPARMENT OF RESPONDENT
EDUCATION

DETAILS OF HEARING AND REPRESENTATION
[1] This was arbitration process set down for hearing at 10h00, on 06, 31 October 2023, 17, 24 and 29 November 2023 at the premises of the respondent at No. 44 Wolgang Street, Norwood, Johannesburg. The applicant, MILTON M. SEOPA was present and represented himself, while the respondent, GAUTENG DEPARTMENT OF EDUCATION was represented by Mr Mogaba Tsebe (Employee Relations Manager).

[2] Both parties handed in bundles of documents which were accepted and marked “A”, “A1” and “R”.

[3] The proceedings were digitally recorded and handwritten notes were also taken.

BACKGROUND TO THE DISPUTE
[4] The applicant is employed by the respondent as principal of Waverley Girls High School. He was engaged on 01 January 2001. He referred an unfair labour practice dispute relating to disciplinary action short of dismissal. He is seeking that the respondent should pay back his salary in amount of R53 377.25 for the period 01 to 28 February 2023 as a form of relief. The respondent is a department education.

[5] The dispute remained unresolved, and the arbitration process commenced. Hereunder is a brief account of the arbitration in terms of Section 138 of the Labour Relations Act 66 of 1995 (hereinafter referred to as LRA).

[6] The applicant is challenging both the procedural and substantive fairness on the conduct of the respondent.
Common cause and issues in dispute.

[7] The parties held a pre-arb meeting on 26 June 2023 and signed the minutes. A copy of the pre-arb minutes was handed in.

[8] The pre-arb minutes were incorporated as part of the record of this arbitration process.

[9] The parties listed common cause and issues that are in dispute. I also listed additional issues with the parties at this arbitration process as some of the issues were not clear.

ISSUE TO BE DECIDED
[10] Whether or not the respondent committed unfair labour practice relating to disciplinary action short of dismissal and whether the conduct of the respondent was fair or unfair.

[11] Appropriate relief, if any.

SURVEY OF EVIDENCE AND ARGUMENT
Hereunder is the summarised evidence of the applicant.
[12] The applicant, Mr MILTON MMAMPONE SEOPA testified under oath that the respondent appointed him to the position of a principal on 01 January 2001. After few days in service in this position he discovered that the school had offered and paid extra remuneration to its employees. The School Governing Body (SGB) and the Finance Officer made him aware that Section 38A of SASA was offered and paid to Waverley Girls High School.

[13] In January 2014 the SGB of the school offered him Section 38A payment but he declined it. He believed that he did not deserve it at the time because he did not work an extra mile and that he was not convinced that he performed well. He advised the SGB that he had to prove to himself that he deserved to be paid the Section 38A allowance, and that permission was sought from the respondent to grant him the payment.

[14] Since that time there were issues about Section 38A payment. In 2017 the school appointed a Deputy Principal, Mr Masinge. Mr Masinge demanded that the SGB should pay him Section 38A payment. However, Mr Masinge did not approach him in that regard.

[15] He advised the SGB that the school cannot pay Mr Masinge because they had not applied to the respondent to get authorisation to pay Mr Masinge.

[16] In July 2020 Ms Mabotja was appointed as Educator to the school. Ms Masinge informed him that her persal number was wrongly captured. He and Ms Mabotja went to Johannesburg East District office of the respondent to fix the persal number. This was the first and the last time she spoke to Ms Mabotja about the money and / or remuneration.

[17] In July 2020 the SGB and the IDSO, Ms Ntlane came to the school to sort out a matter between him and Ms Mabotja. It was a complaint that he refused to pay Ms Mabotja Section 38A payment and that he was not assigning her duties. The SGB confronted and asked him why he refused to pay Ms Mabotja. He has no knowledge what transpired thereafter in that he refused to pay Ms Mabotja,

[18] He was surprised why the respondent charged him for misconduct. He advised the SGB in 2014 that permission should be sought and obtained from the respondent when Section 38A must be paid to an employee.

[19] On 03 August 2022 he fell ill. On 28 October 2022 when he reported back to work from sick leave the respondent surprised him when it served him with the outcome of a disciplinary hearing. He did not know about the disciplinary hearing date, time, and venue. The respondent did not serve him with a notice to attend a disciplinary hearing.

[20] On 02 September 2022 he could not have attended a disciplinary hearing because he was indisposed. He informed the respondent’s official (his superior), Ms Ntlane that he was ill. He had sent WhatsApp messages to his superior, Ms Ntlane that he was ill. He continuously reported to Ms Ntlane that he was still off sick until he returned back to work in October 2022. He also reported his illness to the District Director, Ms Shirley Molobi and the Deputy Director, Ms Bongi Memeza.

[21] He received WhatsApp messages, but he did not know that the respondent had scheduled a disciplinary hearing to take place on 02 September 2022. He normally receives many WhatsApp messages in his cell phone. He could not have read the said message because he was not well and in bed. He did not use his laptop and thus could not have seen and read emails because he was ill and in bed.

Hereunder is the summarised evidence of the respondent:
[22] The respondent’s witness, Ms Ceaserine Ntombikanyana Nyaka testified under oath that she is employed by the respondent as Deputy Chief Education Specialist. Her job responsibilities are amongst others, to investigate complaints from the schools. She investigated a complaint of one of the Educators, Ms Mabotja at Waverley Girls High School.

[23] The complaint of Ms Mabotja was that she received Section 38A payment, but that she did not get the same payment as that of her colleague who is in the same level as Deputy Principal.

[24] During the investigations she found that Ms Mabotja was employed in that school since July 2020 and that she would not have qualified to receive Section 38A payment. She also found that Ms Mabotja was paid Section 38A payment without following proper procedures.

[25] During investigations she interviewed the applicant and enquired why was Ms Mabotja paid Section 38A payment. The applicant’s response was that he paid Ms Mabotja because she was pestering and pressurising him. She asked the applicant whether he had informed the School Governing Body (SGB) about the payment. She also enquired whether there were SGB minutes of a meeting where this matter was discussed.

[26] During the investigation when she interviewed Ms Mabotja informed her that the applicant told her that the employees of the school were receiving Section 38A payment. Ms Mabotja requested the applicant to give her a file which she did. That is when Ms Mabotja saw that the other Deputy Principal received more payment than what she received.

[27] She after listening to the applicant’s side of the story recommended that disciplinary steps be taken against the applicant for contravening Section 16 (A)(h)(i) of the South African Schools Act, (SASA).

[28] The respondent’s witness, Ms Mantwa Margaret Mabotja testified under oath that she is employed by the respondent as Deputy Principal and is based at Waverley Girls High School.

[29] She started working for Waverley Girls High School on 01 July 2020. After some weeks during the month of July 2020 the applicant called her to his office. At the office the applicant told her that the Senior Management Team (SMTs) are receiving Section 38A payment.

[30] A week later the members of the SGB, the Chairperson and Treasurer came to the applicant’s office. The applicant called her to his office and told her that she was going to get Section 38 payment, the same amount as the other Deputy Principal.

[31] During August 2020 she started receiving Section 38A payments. She received the payments up to December 2020.

[32] The respondent’s witness, Ms Phindile Mokheseng testified under oath that she is employed by the respondent as Labour Relations Officer and is based at the Johannesburg East District office.

[33] Her job responsibilities amongst others, are to receive and serve the notices to attend disciplinary hearings. She was responsible to serve the notice on the applicant. She went to the school to serve the applicant but was told that the applicant was on sick leave. She could not trace the applicant’s whereabouts.

[34] She contacted the ISDO to enquire whether there was a medical certificate to serve as proof that the applicant was off-sick. She could not get any medical certificate. She referred me to a document and mentioned that there was no proof that on 02 September 2022 the applicant was on sick leave.

[35] She sent a WhatsApp to the applicant’s work cell phone informing him about the disciplinary hearing. The notice to attend the disciplinary hearing was attached to the WhatsApp message. She saw that the applicant had opened the WhatsApp message.

ANALYSIS OF EVIDENCE AND ARGUMENT
[36] Unfair labour practice means any act or omission that arises between an employer and employee. The unfair act or omission must relate to promotion, demotion, probation, training, or provision of benefits. It could also relate to suspension of an employee, or disciplinary action short of dismissal, failure, or refusal by the employer to reinstate or re-employ a former employee in terms of any agreement, and it may also relate to an occupational detriment other than dismissal in contravention of the Protected Disclosure Act, Act No. 2000 of 2000, on account of an employee having made a protected disclosure.

[37] The law provides that he who alleges bears the onus to prove. In this case the applicant alleged that the respondent committed unfair labour practice. The applicant therefore bears the onus to prove the existence of the unfair labour practice which constitutes an act or omission, and that such practice was unfair.

[38] The applicant alleged that the respondent committed unfair labour practice, in the form of disciplinary action short of dismissal. There were two contradictory versions presented by the parties. I must decide which version is more probable than the other.

Procedural fairness
[39] The applicant’s testimony that he was on sick leave and this was not placed in dispute. However, there were no records and / or documentary evidence to the effect that the applicant was indeed booked off sick on 02 September 2022. The respondent handed in documentary evidence to show as proof that the applicant was on sick leave for certain days but that there was no record to show that he was booked off sick on 02 September 2022.

[40] I found that the respondent’s reason to proceed with a disciplinary hearing in the absence of the applicant was because the Presiding Officer and / or the Initiator were not furnished with any information that the applicant was indisposed and booked off sick.

[41] I must say that I did not doubt the evidence of the applicant that he was “bedridden” and unable to attend the disciplinary hearing on 02 September 2022. It was not disputed by the respondent that the applicant was ill for a period from August 2022 up to October 2022. However, of utmost importance was whether the Presiding Officer and / or the Initiator knew that on 02 September 2022 the applicant was off sick and unable to attend a disciplinary hearing. There was no evidence presented to me to show that the Presiding Officer and / or the Initiator were aware of the applicant’s indisposition.

[42] The applicant relied on the fact that the ISDO, his immediate superior, Ms Ntlane knew that he was ill and that he was bedridden and not reporting for work. However, the applicant did not call Ms Ntlane to give testimony to support his evidence that on 02 September 2022 he was booked off sick, bedridden, and unable to attend the disciplinary hearing. The applicant did not say whether he told Ms Ntlane to inform the Disciplinary Tribunal that he was indisposed and thus unable to attend the hearing on 02 September 2022.

[43] Even though the applicant says he was indisposed on 02 September 2022, there was no evidence to support this assertion. The respondent presented a document to show that the applicant was off sick, and his sick leave is reflecting in their system. However, there was no record or documentary evidence presented by any of the parties to show that the applicant was indeed booked off sick on 02 September 2022. There was nothing that was presented to persuade me that the respondent acted unfair by proceeding with a disciplinary hearing in his absence. There was no evidence presented by the applicant to show that the Presiding Officer and / or the Initiator were aware that he was indisposed and unable to attend the disciplinary hearing on 02 September 2022.

[44] The applicant did not challenge the evidence of Ms Mokheseng that WhatsApp message about the disciplinary hearing sent to him showed double blue tick which confirms that he opened the said message. The applicant’s defence that he did not know the person who sent the WhatsApp message and that he could not have known that the message was informing him about the hearing is inconceivable. The applicant knew that he had already been served with a notice though it had no date, time and venue, but the notice was about a disciplinary hearing. Therefore, when he opened the WhatsApp message that says documents were sent about his disciplinary hearing, he could have worried about it. It did not make sense that he kept quiet, ignored it when he in fact knew that in the past few weeks, he had received a notice that did not have date, time, and venue for the hearing.

[45] In light of the evidence herein above the applicant has in my view failed to discharge the onus to show that the conduct of the respondent was procedurally unfair. There was no evidence that can be relied upon to show that the applicant was indeed booked off sick and / or that he reported to the Presiding Officer and / or Initiator that he was booked of sick.

Substantive fairness
[46] The applicant’s defence that he did not authorise Section 38A payment to Ms Mabotja was not supported by any other form of evidence. The respondent’s two witnesses, Messrs Nyaka and Mabotja corroborated each other that the applicant held a discussion with Ms Mabotja about the Section 38A payment.

[47] Even though the applicant says that he did not authorise the Section 38A payment of Mabotja the money could not have been paid out of the coffers of the school without his signature. The applicant could not run away from the fact that he was the custodian of the school property. The school property includes money. The applicant’s defence that the finances of the school are decided by the SGB did not take away his responsibility as the principal of the school to ensure that he remains accountable for the finances of the school.

[48] The applicant’s testimony that it was not him but that it was two (2) members of the SGB that paid Ms Mabotja did not in my view make sense. The applicant did not dispute the evidence of Ms Nyaka that he represented the HoD of the respondent and that he remains accountable to the property of the school. The applicant’s defence that the two SGB members paid the applicant against his will was another form of defence which was not supported by any other form of evidence.

[49] The applicant did not dispute the testimony of Ms Nyaka that when Section 38A payment has to be made, the SGB must hold a meeting and keep minutes of the said meeting. The applicant did not further dispute the that he told Ms Nyaka that there was no SGB meeting held to approve the payment of Ms Mabotja. The applicant knew that Ms Mabotja was received Section 38A payment which she did not deserve but he failed to report to other members of the SGB that two members paid Ms Mabotja and that it was against his will.

[50] The undisputed evidence of Ms Mabotja that the applicant called her to his office and assured her in front of the two (2) SGB members that she was going to receive Section 38A payment was consistent with the evidence of the applicant that payment was made without the discussion and approval of the SGB meeting. The applicant did not dispute that a meeting of the SGB did not take place and that two members of the SGB came to his office and that he called Ms Mabotja to assure her that she will receive Section 38A payment.

[51] In light of the evidence herein above it is improbable that the applicant was not involved in the payment of Section 38A to Ms Mabotja. The applicant did not dispute the evidence of Ms Nyaka that he (the applicant) told her that she paid Ms Mabotja because she was pressuring him and that he did the payment out of duress. The applicant did not dispute that he did not inform the SGB about the payment made to Ms Mabotja. This part of the evidence was consistent with the evidence of the applicant that the members of the SGB were in charge of the school’s finances. However, the fact that the SGB were in control and that the said members made decisions did not prevent him from reporting same to the HoD and / or his superiors.

[52] The applicant testified that he reported to his superiors that he was experiencing problems from the members of the SGB. Ms Nyaka testified to the contrary and mentioned that the applicant though her reported complaints, but he never reported a complaint about members of the SGB who forced him to allow and / or recommend school employees to receive Section 38A payment.

[53] The applicant’s testimony that he did not pay or recommend Section 38A payment for Ms Mabotja did not answer the charge that he failed to report the incident that Ms Mabotja received Section 38A payment. It was common cause that Ms Mabotja could not have qualified to receive Section 38A payment from Waverley Girls High School for the reasons that she started working at the school when such payment was already budgeted for and recommended for payment to the qualifying employees.

[54] The applicant’s evidence that he reported to his superiors that Section 38A payment was made to Ms Mabotja against his will could not be supported by any other form of evidence. The applicant did not dispute the evidence of Ms Nyaka that he did not inform her during the investigations that two (2) members of the SGB made Section 38A payment to Ms Mabotja. The applicant did not cross examine Ms Nyaka on this averment.

[55] The applicant did not at all challenge the evidence of Ms Mabotja. He did not dispute that he called Ms Mabotja to his office and discussed about Section 38A payment. He also did not dispute that two (2) members (the Chairperson and Treasurer) of the SGB, were present in his office when he assured Ms Mabotja that she was going to receive the same amount of money the other Deputy Principal received as Section 38A payment.

[56] In light of the evidence herein above I find that the evidence of the applicant was improbable and that the evidence of the respondent was more probable. Therefore, I was persuaded that the applicant has not succeeded to discharge the onus of proof that the respondent’s conduct in finding him guilty of contravening Section 16(A)(h)(i) of SASA and failing to provide the SGB with the correct information was substantively unfair. On this premise I dismiss the applicant’s claim.

AWARD
[57] The applicant, MILTON M. SEOPA has not succeeded to discharge the onus of proof that the respondent, GAUTENG DEPARTMENT OF EDUCATION has committed unfair labour practice and that its conduct was both procedurally and substantively unfair.

[58] The claim of the applicant is hereby dismissed.

Amos Mthimunye
EDUCATION SECTOR