ELRC98-23/24FS

ARBITRATION AWARD

Panellist: Khuduga Tlale
Case Reference No.: ELRC98-23/24FS
Date of award: 16 January 2024

In the matter between:


SADTU obo Modise Samuel Mahlaba Applicant

And

Department of Education – Free State Respondent


ARBITRATION AWARD

Details of hearing and representation

1. The arbitration hearing between SADTU obo Modise Samuel Mahlaba (“the Applicant”) and Department of Education – Free State (“the Respondent”) was held on 01 November 2023, and concluded on 28 November 2023 at the Respondent’s offices in Phuthaditjhaba. The Applicant appeared in person, and Mr. B Mbhele, Branch Secretary (SADTU), represented him. Mr. V Gubuza, Deputy-Director: Dispute Management represented the Respondent.

2. These proceedings were conducted in English, and were manually, and digitally recorded. The parties agreed to submit written heads of argument on Friday, 08 December 2023. They both submitted.

Issue to be decided

3. The issue to be decided is whether the Applicant’s disciplinary action short of dismissal was both procedurally, and substantively fair.

Background to the dispute

4. This is a dispute brought in terms of section 186(2)(a) of the Labour Relations Act, as amended (“the Act”) relating to the provision of disciplinary action short of dismissal, referred by the Applicant to the Education Labour Relations Council (“the Council”) for arbitration. It is common cause that the Applicant was employed by the Respondent on 01 April 1991 as an Educator (PL1). He was promoted to the position of the Head of Department (PL2) in the year 2011. He was working at Tlotlisong Secondary School in Ficksburg.

5. The Applicant was charged with three (3) counts of misconduct relating to non-marking of learners’ scripts, falsified records, and failure to carry out instructions. He was served with the notice of the disciplinary enquiry (“the enquiry”). He attended the enquiry, and he was represented. He was found guilty on all three counts of misconduct. The sanction of a final written warning, and a demotion from Educator (PL2) to an Educator (PL1) was imposed on him on 26 January 2023.

6. He lodged an appeal, and the sanction was confirmed on 02 May 2023. He was demoted with effect from 02 May 2023. His salary was lowered from R38 407, 62, per month, to R36 178, 87, per month. He was remunerated as an Educator (PL2) in May 2023, and he was remunerated as an Educator (PL1) with effect from 01 June 2023. He attended the meetings on 05, and 23 August 2021.

7. The Applicant referred this dispute to the Council, where it remained unresolved. A certificate of non-resolution was issued, and the dispute was then referred for an arbitration. The parties submitted bundles of documents that were marked bundle “B”, and “C”. They narrowed the issues as per “A”.



Survey of evidence

Applicant

First Witness: Mr. Modise Samuel Mahlaba

8. The witness testified under oath that he was the Applicant in this matter. The Respondent issued a circular indicating that 2021 June Examinations (“the June exam”) was not compulsory as per “C1”. Their school took a decision to write the June exam, and they marked the scripts. He taught Mathematics Literacy at Grade 12, and he marked the learners’ scripts. Mr. Tsotsotso got an instruction from the school principal that he must not mark all the Mathematics scripts. The reason for that decision was because those marks were not going to form part of the formal assessment. They were going to use the control tests as June exam.

9. Informal tests were not moderated, and not recorded in the schedule, and mark list. Formal assessment was moderated, recorded, and formed part of the school based assessment (“SBA”). The acting circuit manager, Ms. Mokoma (“the manager”) had a meeting with the principals of circuit 4. They were informed that the Respondent would have a road show. They were requested to prepare the slides to show how learners’ performed during the June exam for the period 2019-2021. He informed the manager that they would present assessments for March, and May for the years 2019 to 2021. The manager replied by saying, she was expecting the 2019-2021 June exam. The manager requested the scripts of all the subjects written in the 2021 June exam. He further informed the manager that they do not have the results of pure mathematics.

10. He requested to be given a chance in order to mark those scripts, but she refused. The manager said that she had no knowledge why the scripts were not marked. The Respondent official, Mr. Motsoane visited their school, and he found that the scripts for mathematics were not marked. He was charged with misconduct in the year 2022, and the enquiry was held on 09 September 2022. The presiding officer did not provide him with the outcome report of the enquiry. Their presentation at the Respondent road show was about 2021 May tests. He did not change any marks as alleged by the manager. The results on the presentation was as per the schedule. He had no authority to change the learners’ academic results.

11. The visit of Mr. Motsoane at their school was to moderate mathematics for grades 10-12. Mr. Motsoane did not give him the instruction during his visit. He entered his instruction on the log book as per “C10-C11”. Mr. Motsoane only indicated that he, and Mr. Mohapi must intervene in mathematics. He was talking about extra classes, and team teaching. The grade 12 ATP do not make a provision for writing the June exam, it was not compulsory. The 2021 June exam was not covered by SBA as per “B13”. Documents “C100-C114 was the unmarked scripts of Tshabalala.

12. Under cross-examination, he stated that Mr. Tsotsotso marked the sample. He confirmed that they were scripts that were not marked. The manager took 84 learners’ scripts. There were no June exams for the years 2019-2021, and their school was dysfunctional. He stated that the 2021 June exam was informal assessment. He was the acting principal from the 16th of August 2021. The June exam was not compulsory as per “B8”. Their school took the June exam as an informal assessment. All grade 12 educators marked their scripts, except Mr. Tsotsotso.

13. In the year 2021, their school decided to write the June exam. The school used this exam to monitor the learners’ readiness for the trial examination, and they issued the report cards to the learners’. The learners’ could not go to the trial examination without knowing their June exam. There was an arrangement between the school principal and Mr. Tsotsotso how to mark mathematics scripts. The principal informed him about that decision or arrangement. The school management team was ready to mark Mr. Tsotsotso’s scripts. Mathematics was written on 28 June 2021, and two (2) months was more than enough to mark the learners’ scripts. Mr. Tsotsotso would be in the best position to respond why he did not mark the scripts.

14. The learners’ were given the report cards based on the control tests. He confirmed that he marked his learners’ scripts. The Respondent circular was not saying the June exam was informal assessment. His role as a head of department (“subject head) at the school was to moderate the learners’ scripts. There was no plan for the submission of the marked scripts. He denied the allegation to say he presented falsified June exam results. He presented results of all the school subjects including mathematics. He stated that his presentation was about the control test. He was the one who informed the manager that the mathematics scripts were not marked. He denied the allegation to say Mr. Motsoane gave him the instruction. He met Mr. Motsoane in relation to mathematics of grades 10-12. He stated that he did not receive the presiding officer’s report after the enquiry.

15. Under re-examination, he maintained that the circular said that the exam was informal, and not compulsory. The presentation was based on SBA, not June exam. It was a collective decision not to record the June exam.

16. Under clarity questions, he stated that the Respondent circular said that if the school decided to embark on the exam, normal procedures follows. He stated that the circular was not talking about the marking of scripts. Feedback to the learners’ about the exam was important. All the educators, excluding Mr. Tsotsotso marked their scripts. The charges against him was about the 2021 June exam. He only became aware that Mr. Tsotsotso did not mark the scripts during Mr. Motsoane’s visit on 05 August 2021.

17. He stated that the subject head at the school was responsible to ensure that the learners’ scripts were marked. The learners’ wrote first, and second papers of mathematics on 25, and 28 June 2021, but in August 2021 their scripts were not marked. In normal circumstances, educators must submit the marked scripts within five (5) days after the learners’ writing. In this matter, there were no time-frames for educators to submit marked scripts. He decided to include the control tests in his presentation. He denied the allegation to say he presented falsified information.

Second Witness: Mr. Deise Isaac Tsotsotso

18. The witness testified under oath that the 2021 June exam was not compulsory. They gave the learners’ the results of the control tests. He was given the instruction by the school principal not to mark the whole scripts of mathematics. He was requested to proceed with curriculum because the learners’ performance was poor. He did not submit the results of 2021 June exam because they were not formal. Eighty-four (84) learners’ wrote 2021 mathematics. He knew nothing about falsified records.

19. Under cross-examination, he stated that the Applicant was his immediate supervisor. There was no 2021 June exam. He was not part of the meeting held on 23 August 2021. The Applicant did not present falsified information. Mr. Motsoane did not instruct the Applicant to make sure that the scripts were marked. He was the one who told the Applicant that the principal said that he must sample. The LTA circular said that the examination was not compulsory. He had no knowledge whether the school took a decision to partake in 2021 June exam, and the school complied with the time-table as per “C2”.

20. During the re-examination, he stated that the circular was silent on the marking of the scripts.

Third Witness: Ms. Puleng Mofokeng

21. The witness testified under oath that she was the Applicant representative at the enquiry, and the presiding officer did not give them the outcome report. The enquiry was postponed on several occasions without justifiable reasons. The Respondent instituted disciplinary action against the Applicant after ninety (90) days.

22. The sanction was issued early in the year 2023. The presiding officer phoned her, and he informed her that he realized that the Applicant was going to be dismissed. She was requested to submit the mitigating factors. They were not given reasons for the finding of guilty. It was difficult to lodge an appeal because they had no outcome report.

23. Under cross-examination, she stated that she was a SADTU full-time shop-steward. She had no knowledge when the enquiry was instituted. The Respondent delayed charging the Applicant. She requested the outcome report without success. It was the responsibility of the presiding officer to issue the outcome report. The non-submission of the report had a negative impact when they lodged an appeal.

24. Under clarity questions, she stated that the presiding officer did not provide them with the verdict. The presiding officer phoned her, and he informed her that there was a dismissal, and she must submit the mitigating factors. The presiding officer did not pronounce his sanction. The Respondent delayed to charge the Applicant. The incident happened in August 2021, but he was charged in June 2022. The Respondent became aware of the Applicant’s conduct in August 2021.

Respondent

First Witness: Mr. Thabang Zacharia Mofokeng

25. The witness testified under oath that he was the investigating officer in this matter. This matter came to the attention of the district office in July/August 2021. This matter was referred to labour relations in February 2022. Labour relations were not aware of this matter in August 2021 to January 2022. October/November 2021 was the final examinations, and the schools closed in December 2021. This matter was allocated to him in April 2022. He conducted the investigation, and he submitted his report in May 2022. The Applicant was served with the notice of the enquiry in August 2022. There were three postponements due to non-availability of the presiding officer.

26. Under cross-examination, he confirmed that he was the investigating officer in this matter. He confirmed that the Respondent was aware of this matter on 17 September 2021. The charge sheet was signed after eight (8) months. The outcome report comes from the presiding officer, not the labour relations. The investigating officer’s report was not provided to the Applicant. He could not remember the exact date when he served the Applicant with the notice of the enquiry. He had no knowledge whether the Applicant was served with the outcome report.

27. Under re-examination, he stated that the ninety (90) triggered when the labour relations received the referral for alleged misconduct. When the enquiry commenced, it shifted to the presiding officer.

Second: Mr. Thabo Staat

28. The witness testified under oath that he was the presiding officer at the enquiry. Both parties were given an opportunity to present their case. He requested them to submit mitigating, and aggravating factors. He informed them about the verdict, immediately after the completion of the enquiry. He phoned the Applicant’s representative to submit mitigating factors because they did not submit as agreed. He submitted his outcome report to the Respondent. He could not remember whether he sent his report to the Applicant party. He could not remember whether there was a request for his report.

29. Under cross-examination, he stated that he sent his report, and the recommendation to the Respondent. There was no request of the report from him. He gave the reasons for his findings. The enquiry was postponed twice due to his and the Respondent representative’s non-availability. It was not fair to lodge an appeal without the presiding officer’s report. He had no knowledge how the Applicant got the report.

30. Under clarity questions, he stated that he told parties that there was misconduct. The reasons were not provided to the parties at the enquiry. The verdict was included in his report. He phoned the Applicant representative to submit mitigating factors. He did not submit the sanction to the parties. The Applicant received the sanction from the Respondent, not from him.

Third Witness: Mr. Sello Motsoane

31. The witness testified under oath that he was the provincial coordinator for mathematics in grades 10-12. He visited the school on 05 August 2021. The purpose of his visit was to moderate the learners’ scripts. Moderation was to check the quality of marking, and to identify the learners’ mistakes. On his arrival, he requested the learners’ scripts. Upon receiving the scripts, he realized that the scripts were not marked. He entered into the log book the intervention of the principal as per “C10-C11”. He met the Applicant as the subject head. He had a meeting with all grade 12 mathematics educators. He raised the issue of non-marking of the learners’ scripts with the Applicant, and Mr. Tsotsotso. He further informed them that they must mark the scripts.

32. Under cross-examination, he stated that he first met the principal, and he requested to see the mathematics subject head. He was the author of the entry into the log book as per “C10-C11”. He requested the intervention of the Applicant to Mr. Tsotsotso. The entry does not indicate the Applicant and the scripts. The duty of the subject head was to monitor all the activities in the classroom. The examination was not compulsory for the schools in the year 2021. He must have met the Applicant alone. He did not make a follow up about the non-marking of the scripts. He raised his concern about the non-marking of the scripts. He was not sure whether the meeting with the educators was an instruction.

33. Under re-examination, he stated that the educators must mark the scripts in order to give feedback to the learners. Tlotlisong Secondary School chose to write the June 2021 exam. His instruction was reasonable because he had authority over mathematics in the province.

34. Under clarity questions, he stated that he gave the Applicant a verbal instruction to make sure that the scripts were marked. The instruction could have been given at the staff room.



Fourth Witness: Ms. Maneo Mokoma

35. The witness testified under oath that she was the acting circuit manager in August 2021. Document “C6-C7” was the subject head duties, and Tlotlisong Secondary School was one of her schools. Every term there is a presentation of learners’ results. Prior to the presentation, the school would be given a template. The Applicant was an acting principal in August 2021. The results of Tlotlisong Secondary School were too high when compared with other schools. Their presentation for mathematics reflected 80%. They requested them how they reached that results. The Applicant replied by saying there should have been some wrong information, and she requested to see the learners’ scripts.

36. They divided the learners’ scripts, and they realized that mathematics scripts were not submitted. The Applicant informed her that mathematics scripts were not marked. The Applicant further said that he tried without success for the scripts to be marked. The results they presented were from the SBA. The Applicant submitted the scripts, and they were not marked. Tlotlisong Secondary School was excluded from the presentation. She informed her superior the reason Tlotlisong Secondary School was excluded. The presentation of Tlotlisong Secondary School was not a true reflection of the learners’ performance. The Applicant knew from the beginning that the scripts were not marked because he was the school principal.

37. He initially did not inform her that the presentation was about the SBA. The 2021 June exam was an official examination, and it was written. The 2021 June exam was discussed at the circuit level, and the decision was taken to partake in this examination. The 2021 June exam was written at Tlotlisong Secondary School, and the learners’ scripts were marked, except grade 12 mathematics.

38. The Applicant was also the immediate supervisor of Mr. Tsotsotso. It was the Applicant’s responsibility to make sure that scripts were marked. On 25 August 2021, the Applicant was the subject head, and also the acting principal. The Applicant should have instructed Mr. Tsotsotso to mark those scripts, but he failed to do so. The purpose of the presentation was to get the raw presentation of all the June exam results in order to check the learners’ performance.

39. Under cross-examination, she confirmed that all the subjects at Tlotlisong Secondary School were marked except grade 12 mathematics. The accounting scripts were marked, and the last 3 questions were marked by the learners. Document “B8” was the circular from the Respondent. The Respondent took a decision that the province would write the examinations. She confirmed that the 2021 June exam was compulsory. The Applicant’s presentation was about the SBA, not 2021 June exam. The instruction to the schools was clear to say the presentation must be a raw results. It was strange that the learners’ scripts were not marked in August. The marking of scripts should have been completed within three (3) days after the subject was written.

40. The Applicant did not inform them that the presentation was about the control test. The Applicant did not have the June exam results. The Respondent circulars were binding to the Applicant. The Respondent deviated from the national circular S8 of 2021. The Respondent could deviate from the national circulars. The Applicant had no permission to present control tests results. She confirmed that the informal activities could not be recorded, but the 2021 June exam was a formal assessment. Mr. Motsoane gave the Applicant instruction to make sure that the scripts were marked as per “C10-C11”.

Survey of arguments
Applicant

41. Applicant representative submitted that the Respondent relied on the provincial LTA circular 9 of 2021, and ignored circular S8 of 2021. Mr. Motsoane did not give the Applicant the instruction to mark the scripts. The entry to the log book was to give the extra classes, not to mark the scripts. Mr. Motsoane could not remember where he gave the Applicant an instruction. Mr. Tsotsotso submitted term 2 test prior to the circuit meeting. The 2021 June exam was not formal, and was not recorded. They issued the learners with report card using term 4 marks.

42. The Applicant presented term 2 SBA tasks at the circuit meeting. The Applicant was wrongly accused for not recording 2021 June exam. The charges levelled against the Applicant were not substantiated. The Respondent delayed to charge the Applicant. The Respondent failed to justify their findings through the presiding officer’s report. It remains unclear what are the findings for each charge. The presiding officer did not inform the Applicant about his sanction. The sanction imposed on the Applicant was both procedurally, and substantively unfair.

Respondent

43. The Respondent representative submitted that Tlotlisong Secondary School chose to write the 2021 June exam. Mathematics scripts for grade 12 June exam were not marked. The Applicant failed to ensure that Mr. Tsotsotso marked the scripts. The Applicant did not rebut the Respondent’s evidence that he was given an instruction to ensure that mathematics scripts are marked.

44. The Applicant presented the continuous assessment marks, instead of the June exam. The Applicant failed to disclose during the circuit meeting that the mathematics scripts were not marked. He presented falsified marks in that meeting. The Applicant did not show any remorse for his action. The sanction imposed on the Applicant, does not meet the seriousness of the misconduct committed. It was the Respondent’s plea that the Applicant was guilty as charged, and the sanction of a dismissal must be imposed on him.

Analysis of evidence and arguments

Introduction

45. Section 186(2)(b) of the Act states that ‘unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving – unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee.

46. The onus to establish that the conduct complained of constitutes an unfair labour practice within the meaning of Section 186(2) of the Act rests on the Applicant. The Applicant had to show that his complaint was justifiable. The Applicant must therefore be able to lay the evidentiary foundation for his claim of an unfair labour practice.

The following are brief reasons for the award:

Whether there was a delay to charge?

47. It is the Applicant’s version that the delay in instituting, and finalizing his enquiry was excessive, and there was no justifiable reason for the delay provided by the Respondent. Schedule 2 item 2(b) of the Employment of Educators Act, (“the EEA”) states that discipline must be applied in a prompt, fair, consistent, and just manner. The EEA is silent on the meaning of “prompt disciplinary action” as no time frames are mentioned/described. Obviously, one also cannot interpret item 2(b) in isolation.

48. Article 10 of International Labour Organization (“ILO”) recommendation 166 suggested that “the employer should be deemed to have waived his right to terminate the employment of the employee for misconduct if they has failed to do so within a reasonable period of time after they has a knowledge of the misconduct”. The Applicant’s misconduct occurred on 05, and 25 August 2021. The Applicant was formally charged in August 2022. Despite this, the Applicant’s enquiry commenced on 09 September 2022, almost 1 year, and 1 month after the Applicant was served with the notice of the enquiry. The requirements of promptness not only extends to the institution of the disciplinary proceedings, but also to their expeditious completion.

49. Item 2(d) of the EEA states that a disciplinary code is necessary for the efficient delivery of service, and the fair treatment of educators, and ensure that educators are timeously informed of allegations of misconduct made against them, and receive written reasons for any decision taken. The nature of the Applicant’s offence was not complex for the Respondent not to institute disciplinary action expeditiously. The Respondent failed to provide a justifiable, or convincing explanation for the delay during the proceedings. I conclude that the Respondent delayed to institute disciplinary action against the Applicant, and failed to complete the enquiry expeditiously.

Whether the Applicant provided with findings?

50. Item 16 of the EEA states that the presiding officer must give a finding whether, or not the educator has committed the misconduct, and must inform the educator of the finding, and reasons therefor. It is the evidence of Mr. Staat that the reasons were not provided to the parties at the enquiry, and the verdict was included in his report. I conclude that the Respondent failed to comply with item 16 of the EEA.

Whether the outcome was communicated?

51. Item 7(18) of the EEA state that the presiding officer must communicate the final outcome of the hearing to the employer, and the educator within five working days after the conclusion of the disciplinary enquiry, and the outcome must be recorded on the personnel file of the educator. It is the evidence of Mr. Staat that he did not communicate the final outcome of the hearing to the Applicant. He sent his outcome report to the Respondent.

52. Item 8(1) of the EEA states that if the presiding officer finds that an educator has committed misconduct, the presiding officer must, on behalf of the employer, imposed a sanction. It is also the evidence of Mr. Staat that he did not impose a sanction on the Applicant. He sent his recommendation to the Respondent. I, therefore, conclude that the Respondent failed to comply with items (7)(18) and 8(1) of the EEA.

Whether the Applicant’s dismissal was in accordance with a fair procedure?

53. The remarks of the Court in Stokwe v Member of the Executive Council: Department of Education, Eastern Cape and other (2018) ZACC 3; 2019 (4) BCLR 506 (CC); (2019) 6 BLLR 524 (CC) are particularly important. The Court said: “Where a procedure and remedy is prescribed either by legislation or collective agreement in the public service, the public authority has to apply it”. The failure to follow an internal disciplinary code is not in itself fatal but it remains a relevant factor in determining its impact on the fairness of the process. It must also be considered that whether the Applicant has taken steps in the course of the process to assert his right to a speedy process. In other words, it will be a factor for consideration if the Applicant himself stood by and did nothing. No evidence was led during the proceedings to prove what steps the Applicant took for a speedy disciplinary process.

54. Did the delay to charge, to conclude the disciplinary process, not communicating the outcome report, and the findings cause material prejudice to the Applicant? What impact did it have on the ability of the Applicant to conduct a proper case? The Applicant failed to prove how the failure of the Respondent to comply with the EEA impacted on his disciplinary process. As a matter of labour law, the Applicant has to show actual prejudice arising from the procedure followed. A procedural irregularity that does not result in prejudice is not actionable. The Applicant has not set out any exceptional circumstances.

55. Not every deviation or defect is material and disciplinary proceedings are not intended to be equal to formalistic criminal matters. See Avril Elizabeth Home for the Mentally Handicapped v CCMA & Others (2006) 9 BLLR 833 (LC) and the later decision in Nitrophoska (Pty) Ltd v CCMA & Others (2011) 8 BLLR 765 (LC). The court noted that the schedule was intended to do away with the strict procedural requirements imposed by courts and arbitrators under the 1956 Act. The sole test was whether he had had an opportunity to state his case. Since he had been afforded ample opportunity to do so, the proceedings satisfied the requirements of the Act. The Applicant was in any event not prejudiced as he was at liberty to present his case during the enquiry and arbitration proceedings.

56. I find the Respondent complied with a fair procedure when imposing a sanction against the Applicant, therefore, the Applicant’s disciplinary action short of dismissal was procedurally fair.

Substance

Whether the Applicant failed in his duties?

57. The Applicant was charged for contravening the Employment of Educators Act 76 of 1998, section 18(1)(f) in that he unjustifiably prejudiced the administration and efficiency of Tlotlisong Secondary School, Thabo Mofutsanyana District, and Free State Department of Education when he failed to instruct Mr. Tsotsotso to mark Grade 12 Mathematics scripts, so that he can moderate them and issue learners’ report cards on 24 August 2021. The Applicant denied this allegation.

58. It is the Applicant version that the 2021 June exam was not compulsory, and it was regarded as an informal assessment. The Respondent rebutted the Applicant’s version. The national department issued circular S8 of 2021 on 14 April 2021, and reference was made to circular S13 of 2020. Sub-paragraph 6(g) of circular S13 states that in the case of grade 12, the June exam has been removed as part of the formal assessment programme.

59. On 20 May 2021, the Respondent issued LTA circular 9 of 2021, and stated that 2021 grade 12 ATP’s do not make provision for the writing of the mid-year examination. Paragraph 4 stated that this examination is not compulsory for schools to write. However, we strongly advise and encourage schools to take part in this examination (mid-year exam). Paragraph 5 further stated that where a school chooses to write, the school will be expected to follow the provided time-table. Paragraph 7 of the circular states that the marking guidelines will be electronically distributed to schools at least 2 hours after the paper or subject shall have been written.

60. The EEA defines the employer as in relation to any provision of chapter 4, 5 or 7 which applies to, or is connected with an educator in the service of the Department of Basic Education, means the Director-General; an educator in the service of a provincial Department of Basic Education, means the Head of Department. It is clear that the Head of Department in the province is the employer of the Applicant, and he has the authority to direct the school about the examination.

61. It is the Applicant’s version that Tlotlisong Secondary School chose to write 2021 mid-year exam. It is the Respondent’s undisputed evidence that all the subjects at the school were marked except grade 12 mathematics. The question that needs to be ask is why only the subject of Mr. Tsotsotso at the school was not marked. It is the Respondent’s undisputed evidence that the marking of the scripts should have been completed within three (3) days after the learners’ wrote the subject. In this matter, mathematics papers 1, and 2 were written on 25, and 28 June 2021, therefore, the learners’ scripts should have been marked not later than 02 July 2021.

62. The school was expected to mark the learners’ scripts after writing the exam, and to provide the learners with the report cards. It is important to note that the Applicant was not disciplined for failure to record the learners’ assessments. The Applicant as the subject head failed to perform his duties as required. It is clear that the Applicant has the knowledge of the rule, and he failed to comply with the rule. I accordingly find the Applicant did commit an act of misconduct when he failed to instruct Mr. Tsotsotso to mark grade 12 mathematics scripts, moderate them, and issue learners with the report cards.

Whether the Applicant present falsified records?

63. The Applicant was charged for contravening the Employment of Educators Act 76 of 1998, section 18(1)(z) in that he presented falsified records of learners’ performance in the grade 12 mathematics subject mid-year June 2021 examinations during a circuit meeting on 23 August 2021 which were later discovered that they were not even marked by Mr. Tsotsotso as a responsible educator. The Applicant denied this allegation.

64. It is the Respondent’s undisputed evidence that the Applicant was the acting principal at Tlotlisong Secondary School on 23 August 2023. It is the Respondent’s undisputed evidence that the schools including Tlotlisong Secondary School were informed to prepare presentations regarding the 2021 June exam. It is the Applicant’s evidence that they were requested to prepare the slides to show learners’ performance during the June exam. It is the Applicant’s evidence that he did not present on the 2021 June exam, but the control tests. Based on the evidence presented before me during the proceedings, it is clear that the Applicant presented false learners’ performance. I, accordingly, find the Applicant committed misconduct and that he was correctly found guilty.

Whether the Applicant was given the instruction?

65. The Applicant was charged for contravening the Employment of Educators Act 76 of 1998, section 18(1)(i) in that he failed to carry out a lawful order or routine instruction without just or reasonable cause when at Tlotlisong Secondary School. On the 5th of August 2021 he was instructed by the head office official Mr. Motsoane to ensure that Mathematics learners’ scripts are marked by Mr. Tsotsotso on or before 10th of August 2021. The Applicant denied this allegation.

66. It is Mr. Motsoane’s version that he raised the issue of non-marking of the learners’ scripts with the Applicant, and Mr. Tsotsotso. He raised his concern about the non-marking of the scripts. He was not sure whether the meeting with the educators was an instruction. It is Ms. Mokoma’s version that the instruction given to the Applicant was entered into the log book.

67. In this matter, the Respondent was required to prove that the Applicant was given an instruction, but they failed to do so. Mr. Motsoane was not sure how the instruction was given to the Applicant. Mr. Motsoane gave contradicting evidence in relation to the instruction to the Applicant. He was not a reliable, and credible witness. I, therefore, conclude that the Respondent failed to prove that the Applicant failed to carry out an instruction.

Whether the sanction was appropriate

68. The Applicant, in his position as a subject head, and the acting school principal, will have foreseen the harm resulting from his act or omission, and will have taken steps to guard against that harm. The Applicant did not show any remorse during the proceedings. It is clear from the evidence presented during the proceedings that the Applicant failed to ensure that he executed his work in the best interest of the Respondent, and his conduct constituted an act of dishonesty, and dereliction of duty.

69. In Department of Labour v GPSSBC (2010) 31 ILJ 1313 (LAC) the Labour Appeal Court confirmed the principle that a sanction aimed at correction and rehabilitation is of no purpose when an employee refuses to acknowledge the wrongness of his/her conduct. In this matter, the Applicant failed to accept the seriousness of his action or admission of any fault on his part, the absence of any indication of regret on his part, which might indicate a willingness to conform and comply with the reasonable instructions of his superiors in the future, and Applicant’s own expressions of distrust of his superiors. There is no reason why the Respondent has to tolerate employees who prefers to always march to the beat of their own drum. The Applicant was given an alternative sanction to a dismissal even though he had not shown any remorse. I, therefore, find the sanction of a final written warning, and a demotion was fair, and appropriate in this instance.

Conclusion

70. In these circumstances, I find that the sanction of a final written warning and demotion imposed on the Applicant, Modise Samuel Mahlaba, by the Respondent, the Provincial Department of Education, Free State, is both procedurally, and substantively fair.

Award

71. The disciplinary action against the Applicant, Mr. Modise Samuel Mahlaba, by the Respondent, the Provincial Department of Education, Free State, was both procedurally and substantively fair.

72. The application is dismissed.


Signature: 
Commissioner: Khuduga Tlale
Sector: Education