ELRC535-21/22KZN

Case : ELRC535 - 21/22KZN
Date of Award: 02 May 2024
Panelist : Vuyiso Ngcengeni

Province : KwaZulu Natal

Employee : PSA obo Maphanga Mandlendoda Israel

Employer : Department of Education – KwaZulu Natal

Issue : Section 186(2)(a) – Unfair Labour Practice – Demotion

Venue : Dundee


Employee representative : Mr Perfect Zulu

Employee Representative : Mr Cyril Ngcobo

ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION
1. The matter was scheduled before me on a number of days, the first being the 2nd May 2023 and last day being 27th March 2024. The matter was held under the auspices of the Education Labour Relations Council (the Council) in terms of S191(1)(iv) of the Labour Relations Act of 1996 as amended (the LRA). The Employee was present at all times and he was represented by Mr Perfect Zulu, from the PSA trade union. The Employer was represented by Mr Cyril Ngcobo. The hearing was conducted in English, there was an isiZulu interpreter. The hearing was electronically recorded.

2. The Employee submitted one bundle referred to as “A” which consists of his leave application forms as well as sick notes amongst others. The Employer submitted one bundle referred to as “B” and consists of an investigation report, a final written warning given to the Employee on 28 February 2019, a developmental programme designed for the Employee, amongst others. The parties also submitted pre-arbitration minutes (page 8-10-A).

3. I received all the closing arguments by the 18th of April 2024.

ISSUE TO BE DETERMINED
4. I am called upon to determine whether the Employer acted fairly by demoting the Employee from the position of Principal and to that of Head of Department in a different school pursuant to the finding of guilt on the Employee.

5. The Employee denies being guilty of the charges laid against him and also challenges the appropriateness of the sanction as he views the sanction as being too harsh.

6. The Employee seeks to be reinstated to the post of Principal.

BACKGROUND TO THE DISPUTE
7. The Employee was employed as a Principal at Nkonza High Scool on level P9 on 13 April 2015. On February 2020, he was demoted to the post of Head of Department (HoD) on level P2 and transferred to a different school, Jajile High School, following a disciplinary hearing held on 23 August 2019 in which he was found guilty of three charges laid against him. Both schools fall under Umsinga area.

8. He appealed against the sanction on 14 January 2020 and the outcome was handed to him on 23 August 2021.

9. The union referred the matter on his behalf to the Council for conciliation on 11 November 2021, alleging that the Employer committed an unfair conduct when it demoted the Employee from the post of Principal to that of HoD.

10. The matter was then set down for arbitration for the 22nd May 2023 when it sat for the first time and after a number of other sittings, it sat for the last time on 27th March 2024.

11. The Employee was charged and found guilty of the charges below: -

11.1 In that on or about the year 2017 to date, you allegedly have been absenting yourself from duty without reporting to your supervisor.

11.2 In that on or about the year 2017 to date, you allegedly failed to attend the accountability sessions scheduled by the Circuit Manager and District Director.

11.3 In that on or about the year 2017 to date, you allegedly failed to ensure proper basic school functionality.

12. He denies all three charges.

13. The parties signed pre-arbitration minutes and on paragraph 3, it states that the facts in dispute are whether the Presiding Officer did not apply his mind, whether the Employer did not prove its case and also, that there was no collaboration of facts.

14. The issue of inconsistency was not part of the aforementioned minutes, so I did not consider it in this award.

SURVEY OF EVIDENCE AND SUBMISSIONS
Employee’s case
The Employee testified under oath as follows:-
15. When he started as the principal at the school, the results improved such that in his first year, he achieved 100% pass rate, followed by 90%.

16. Since 2011, he noticed that his relationship with Ms Nonhlanhla Khoza (Khoza), the Circuit Manager, was not right. At that time, he was the Head of Department (HoD) at Velaphi school and she was the subject advisor.

17. In 2015 when she became his supervisor, she would come to the school and criticise him in front of the staff and that has been the case since he was the HoD at Velaphi and it became worse when he was now the principal. She would criticise him in front of staff and School Governing Body members (SGB).

18. On 13 January 2016, she came to the school and showed appreciation for their stream, on 15 January, they had a principals’ meeting at Msinga High school. She requested him to come to the district in Dundee on 18th January.

19. When he came to the district offices, she called Mr Naidoo, a Chief Education Specialist and told him that they don’t have to initiate a science stream. She demanded that they take Geography, History and Tourism. As the school, they did not accept that but she compelled them to do so. As a result, the science learners went to Lewis school and the enrolment dropped at the school.

20. On 18 September 2017, they held an invigilators training in Dundee, he was invited and attended the training.

21. On 07 September 2017, he was at work at school, but he was given leave without pay by Khoza. And on the first bullet on page 10 (B) indicates that he was charged for failure to call SGB meeting on the 3rd or 4th of September 2017, yet there is evidence on pages 52, 53 & 54 of bundle A, that he called the meeting, which contradicts the charge.

22. Khoza on bullet number 8 on page 10 – A acknowledges that he was submitting leave forms, but she did not consider those leave forms, instead, she filled in leave forms for him for the purposes of making it leave without pay.

23. On page 58 – A is leave form for leave without leave for one day, 07 September 2017, and on page 59 is another form for 15 September 2017 to 12 October, totalling 14 days. However, according to his payslip, he was unpaid for 24 days which included holidays, and that amounted to R 29 542.06.

24. In January 2018, he requested a history and geography teacher and Khoza brought in one teacher from Bhambatha Secondary School, who stayed for five days and then went back to Bhambatha, leaving learners unattended until March 2018.

25. In April 2018, Khoza brought in another teacher, who also failed to teach the subjects on grade 12 and resigned in May 2018. He reported this to the district that the learners had no teacher.

26. In August 2018, there was a protest at the school organised by SGB chairman and he was unable to go to the school because the situation was not conducive. He received some threats for about a week. Khoza came to the school with her team and criticised him in the presence of parents. The SGB chairman clearly told him that they no longer needed him at the school.

27. Around August 2019, she implemented charges against him and the case was finalised in November of the same year, and he was then demoted. On 08 January 2020, he appealed against the sanction and whilst he awaited the appeal outcome, he was demoted and transferred to Mashuka primary school as the HoD, level 2. The appeal outcome only came on 18 August 2021, confirming his demotion. The Employer terminated his services on 19 August 2021, he complained and he was reinstated on 27 October 2021. He requested a letter for the termination of his services that the Employer failed to provide him with one.

28. The Employer did not consider the distance from Nkonza school to Mashuka.

29. In March 2022, he was instructed to report at Jajile high school as the HoD. The Employer failed to afford him the opportunity to choose a school that is nearer to his residence.

30. He seeks reinstatement to Nkonza high school. The Employer reinstated Sithole, which means there was nepotism. Mr Nxumalo, who represented him in the disciplinary hearing told him that the Employer’s intention was to demote them, meaning the case against the two of them was not based on anything, it was just some kind of mandate and that is clear when the Employer managed to terminate his services without any instruction. They also reinstated him without signing any document, moved him to Jajile school without any document. The principal of Jajile only gave him his forms in December 2022, yet he started in March.

31. The Employer, as it managed to review Sithole’s sanction of demotion, it should also have done the same to him. Mr MN Sithole’s appeal outcome (page 56) was reviewed and he was then given a final written warning. He faced the charges below and he pleaded guilty (page 57):

“1. In that on or about the year 2015, to 2018 at or near Mawweni High School, you committed an act of misconduct in that due to poor or inadequate performance, the enrolment has drastically decreased at the school. You thereby contravened section 18(1)(1) of the Employment of Educators Act.

2. In that on or about the year 2018, at or near Mawweni High School, you committed an act of misconduct in that you absented yourself from duty without reporting to your supervisor. You thereby contravened section 18(1)(j) of the Employment of Educators Act.”

32. On paragraph 4 of page 57, the Employer speaks about correcting Sithole’s behaviour, which was not done in his case.

33. He has never absented himself without reporting to Khoza. On page 17 – A is a communication dated 19 September 2024 in which he was informing Khoza that he was unable to go to work on 19 September, and he attached a leave form (p16) for 4 days, until 22 September and a medical certificate (p18).

34. On page 19 is the leave form for 26 September 2017 to 29th of same and a medical certificate is attached on p20. On p 21 is a leave form for s sick leave from 09 October 2017 to 17th of same and a medical certificate is on p22. On page 23 is an update letter dated 09 October 2017, which he wrote to Khoza, informing her that he was not in good condition to go to school.

35. On p29 to 33 are similar documents and they are not disputed by the Employer.

36. In relation to the second charge, he is not aware of any accountability sessions scheduled that he did not attend. The Employer did not provide any dates for such, even in the disciplinary hearing.

37. On the third charge, there is no functionality that was explained to him which he allegedly failed to ensure at the school, neither does he know of any basic school functionality that he was supposed to implement.

38. Cross examination – His relationship with Khoza was not good, in 2011, they clashed following his appointment as the HoD at Velaphi school where he was supposed to start on 1st February 2011, and the then Circuit Manager, Mr Ntombela told him that the school no longer needed a second HoD. He did not start in February 2011 and only started in October 2011. The problem then started when his supervisor at the time wanted him to have work for the whole year, whereas he had only started in October. At the time, Khoza was a subject advisor and she as a result became negative towards him.

39. Khoza, as his supervisor, was supposed to advise and protect him, but instead, she only criticising him. She was not wrong by criticising him, but she should have told him what to do, and in 2015, he told her that he was not happy with her attitude, she said nothing and continued with same.

40. He requested her that if there was something he was doing wrongly, she should do so not in front of parents and staff. It was clear that she did not like him.

41. He denies that by failing to call any staff member to support his testimony is because no staff member would agree with him.

42. On page 60 (A) is proof that he attended the invigilators training. He does not have the attendance register, indicating that he attended the training. He attempted to get the attendance register from the Chief Director – examinations office, but could not get it, as he was told that he needed to follow a procedure that goes through the human resources department. He did not ask his representative to request the attendance register.

43. He denies that he did not get the attendance register because he knows that his name is not contained in it, since he did not attend the training.

44. He had been a principal for seven years, and he knows a leave form. He does not know that if an educator is not at school for unknown reasons, the supervisor must fill in the leave form for him/her and submit for leave without pay purposes. His view is that attempts must be made to find the educator’s whereabouts. He disputes that there is nothing wrong for a superior to complete a leave without pay for absent person.

45. The sanction to demote him was unfair.

46. He submitted his leave form (p17-A) to Khoza’s office on the same day before 10h00, 19th September 2017, the date in which it was due to begin. He started feeling well on 19th September and went to the doctor around 08h00. He did not call Khoza and inform her that he was not going to be at school.

47. He does not agree that if he was not going to be at school, he needed to report before the due date so that the Employer can make arrangements for a replacement.

48. At about 06h00, Khoza’s cell phone was on voicemail, he now remembers that he tried to call her. He did not send a sms to her because he knew he would have proof.

49. He decided to send the letter to her personal assistant (PA) because she (Khoza) was not in her office.

50. On p23-A, he was again reporting his absence, but he cannot remember around what time did he go to the doctor, it may have been between 08h00 and 09h00. He sent the letter by email, he cannot remember the time but it was before the office closed.

51. When asked whether he reported to Khoza that he was not going to be at work, he asked how he could have done so, because he was not at work. He did not report to her that he was still not ready to report to work. He denies that he was not reporting to his supervisor when absent, Khoza’s PA told him to send documents by registered mail because she would deny having received them.

52. He is not accusing the MEC- Education for nepotism, but his representative in the disciplinary hearing told him that there was an intention to demote him and Sithole.

53. There were policies at the school, so he did not fail to put such in place and ensure school functionality. He did not fail in his responsibilities, otherwise he would not have obtained 100% and 90 % pass rate, it is just that Khoza did not support him, she was there to criticise him and undermine his commitment.

54. He started at Nkonza in 2017. He cannot remember the pass rate in 2019. He agrees that the pass rate was 38%. He does not know what the pass rate was, after he was removed from the school.

55. When pointed out to him that in 2020, the pass rate was 84.6%, 20201: 100%, 2022: 73.3%, he said he does not see any problem that may have been caused by his absenteeism.

56. He denies failing to submit reports, it would be better if such reports would be specified as well as the timelines which he failed to adhere to, also, whether he was the only one who failed to do so.

57. It is correct that the problems started in 2017 and his witnesses will give evidence on who caused the problems.

58. On the issue of his development, they agreed to it but the mentors were supposed to come to his school and they did not.

59. He denies that Mbatha tried to intervene. He denies that he failed to attend accountability sessions.

Mr Mzokhona Mthembu (Mthembu) testified on behalf of the Employee as follows: -
60. He is a parent and has kids at the school. As a parent, he has attended meetings at the school in which they discussed the school’s infrastructure as well as the environment as it relates to the learners’ progress and that of the school.

61. He first interacted with the Employee when he (Employee) arrived at the school in 2016. They worked together as the school did not have fence and the Employee assisted in ensuring that the school has fence and that its performance improved.

62. After sometime, it became known that one of the teachers at the school did not have qualifications to teach and that teacher then left the school. Problems then started at the school.

63. One parent, Ngema, had unruly kids at the school and he was the Chairman of the SGB. Ngema’s kids were bringing cell phones into the school, which was not permitted. That led to them as parents to ask for Khoza’s intervention. Khoza came and she also said she did not need the Employee at the school. Ngema was also not fond of the Employee.

64. As a result, science learners ended up being placed at Lewis school, and they asked why did Khoza not support the Employee instead of taking the learners to other schools.

65. In 2017, all the good work done by the Employee deteriorated.

66. Ngema incited the community, the learners incited others and that led to a strike, whereas Ngeman insisted that he did not want the Employee at the school. The situation was bad and on 05 September 2017, a meeting was held by parents where they raised their dissatisfactions with what was happening (page 53-A).

67. In 2018, the results were very bad and that was when they realised that the situation at the school was not good. In the previous two years, before the Employee’s arrival, the school achieved a 90% and 100% pass rates.

68. Cross examination – He is not sure of when did the Employee arrive at the school. He cannot recall when exactly did the school do well, maybe it was in 2016.

69. He got closer to the Employee in 2016 as they would meet in the meetings and share similar ideas, and that was the main reason for their interaction. It was about the school’s progress and the challenges started from 2016 to 2018, when Ngema took over as the SGB Chairman.

70. He did not see the Employee after hours, he only saw him at school during meetings. He concedes that his relationship with the Employee is no different from that of other parents.

71. He cannot recall whether the Employee started at the school in 2015, but his kids started in 2016 and that is when he began to communicate with the Employee.

72. The Employee managed to instil an ideology of what a school is and also ensured that teachers attended school during school hours, learners were also taught and the grade 12 results were good.

73. The bad results were realised when there was no cooperation between Khoza, Ngema and the Employee. Khoza would come to the school with her pre-determined positions and she would not take heed of whatever the Employee was saying, instead, she leaned towards what Ngema said

74. When the Employee was removed from the school, they were not informed and they were not happy.

75. He did not sit in the School Management Team meetings, so he would not know what was discussed at such meetings. He would sit in meetings with department’s HOD and Circuit management when invited.

Mr Mchazeleni Duze (Duze) testified on behalf of the Employee as follows: -
76. He was the SGB secretary from 2015 to 2017, and worked with the Employee during that period. The Employee would inform him of all meetings and upon arrival, they would meet and make decisions.

77. In 2016, there were meetings at the school and they discussed fencing the school and grass cutting and that learners must not carry cell phones to the school and this led to the learners embarking on a strike.

78. There was a bad relationship between the Employee and the learners, as he would confiscate cell phones from the learners, then there would be break in at the school and the cell phones stolen which led to burning of some classes. The chaos at the school was caused by the confiscation of cell phones.

79. When he was still in the SGB, matric results were good and they were: 2016 – R 90%, 2017 – 100%.

80. During 2015 to 2017, the complaint was that the Employee would lock the gate, locking late coming learners out and would open it during the break. He cannot recall any complaint brought to the SGB about the Employee’s poor performance.

81. The closure of science at the school also brought chaos, because as parents, they had to buy new uniform in June, which is the middle of the year. The decision to close science was taken by Khoza. The reason for that was because the number of learners was low. The class was re-opened in 2022.

82. They were not told the reasons for the low enrolment numbers in the science class.

83. Cross examination – The reason for the closure of science class was because enrolment figures were low.

Mr Ntuthuko Maphumulo (Maphumulo) testified on behalf of the Employee as follows: -
84. He was a learner at the school from 2014 to 2017 and the Employee arrived at the school in 2015. From the arrival of the Employee, the matric results were 90% in 2016 and followed by 100% in 2017. In 2018, the pass rate dropped drastically, but he does not recall the percentage.

85. When the Employee arrived, the results were a bit average and after time, they became good. In 2014, the results were not good and at that time, there was no principal at the school.

86. The administration of the school currently is deteriorating when compared to the period when the Employee was still the principal. He was a learner at the school when the science class was closed, and they were not informed. Fourty (40) learners are needed to make a class.

87. Cross examination – before 2014, there were bad results from the school. He does not know what were the pass rates. That is because there was no principal.

88. He denies that he came to the arbitration to mislead it. The Employee was at the school from 2015 to 2018 and he did not finish the third year.

89. He was not in the science class when it was closed, but everything that happened at the school was communicated to them, so the closure of such a class was not communicated.

THE EMPLOYEE ARGUEMENTS
90. The Employer failed to specify the dates that the Employee did not report on duty. The Employee submitted leave forms to Khoza’s office, and they include applications for sick leave supported by sick notes. Khoza did not dispute that the leave forms and the sick notes were submitted to her office.

91. The Employee testified that he reported to Khoza every time he was absent from work. Khoza did not dispute the proof of service slip from Telkom.

92. The unpaid leave was done by Khoza without the knowledge of the Employee, as he had only signed the sick leave application, only to discover that he was not paid. The leave without pay was completed by Khoza herself and she went as far as committing fraud/misconduct by signing for the Employee on the leave forms.

93. One of the dates in which the Employee is said to have been absent is the 18th September 2017, yet the Employee testified that he was on duty on the said date and attended a meeting of Chief Invigilators at the district offices. The invitations for such a meeting came from the district offices, where Khoza also reported to.

94. The problems at the school pertaining to its performance only started when Khoza was promoted to be the Circuit Manager, when previous enmity between her and the Employee became apparent. This was followed by the closure of the science class and the learners being moved to other schools, and the Employee stated that he was not getting along with Khoza and that is what led to the drop in performance of the school.

95. The assistance that was put in place to assist the Employee did take place, following the confusion as to who was supposed to go where. This means the people who were supposed to develop him did not do so.

96. There were no attempts made by Khoza to find out the reasons for the programme to fail. Instead, the Employer charged the Employee for failing to attend the programme. A reasonable employer would have enquired first as to why did the programme fail before embarking on a disciplinary action.

97. The decision of the presiding officer, to demote the Employee set aside and he must be reinstated to his position of Principal.

The Employer’s case
Ms Nonhlanhla Khoza (Khoza) testified under oath as follows: -
98. She is employed as a Circuit Manager for Endumeni South which the Nkonza School falls under. She has been in the position since June 2015. Prior to June 2015, she was the subject Advisor for business studies at the same district and circuit since 2008.

99. The Employee was once a Head of Department at Velaphi School where he was teaching business studies, and that is where she met him for the first time. When she became the Circuit Manager in June 2015, she met the Employee again and at that time, he was the Principal.

100. There was a well communicated rule which was emphasised during meetings that even if one is leaving a school earlier than normal, they need to report, yet the Employee was not reporting his absences from the school to her. The Employee started to absent himself in 2017.

101. When she first met the Employee as his supervisor, they worked well together, although the school results were not good, they tried to improve the results and in 2017, the school did well.

102. In 2015 and 2016 the Employee was cooperative and in 2017, he started absenting himself.

103. On page 17, bullet no 2, it is reported that he was not at school and there were no time books entries made for seven days in May 2017 and those are: 22, 23, 25, 26, 29, 30 and 31, he did not report his whereabouts. She would call him after he had returned back from his unauthorised absence but he would deny that he was absent. On page 28 is the time book and it reflects that he was absent on the said dates. The time book has to be signed by employees who are present at work daily, and he did not sign it.

104. The principals are supposed to take the time book at 08h00 and she does not arrive at a school before 10h00, so when she arrived at the school, during the dates which he did not sign, he was not at school and his whereabouts were not known and he did not report.

105. Also, the Employee from 01 to 08 June 2017 was on Family Responsibility Leave.

106. The behaviour worsened in September 2017 as he left the school on 14th September and did not return until January 2018. This whole period he was not at school, he did not report his whereabouts. She called him by telephone and told him to submit annexures and also that he no longer had sick leave days available as he had already exhausted his 36 days. So he needed to submit annexures A and B for consideration for purposes of medical boarding.

107. At the time of his long absence, he was teaching English grade 12. Upon enquiry, she found out from learners that he had brought someone, unbeknown to her, to teach English.

108. From September 2017 to December of same: 13th October – she submitted leave form for him to Human resources and a letter explaining the reasons for doing so. She did so on his behalf and she filled in a leave form for leave without pay for him.

109. On 16th October in the morning, as she arrived at her office, the office administrator gave her his leave forms and sick notes that were emailed by the Employee. The leave forms must be submitted within two days, yet she only got them on 16th October, something that he was not supposed to do, so he was late.

110. After the above, she did not receive anything from the Employee, until November 22nd when she received an envelope with his leave forms. Again, these were late but even if she got them on time, she would not have accepted them because by then, he was supposed to submit annexures.

111. He came back to school when the schools opened in January 2018 and she was at the school. She spoke with him and asked him that they should forget what happened in 2017 and start afresh.

112. On August 2018, he disappeared again for the rest of the year.

113. She denies any suggestion that she did not like him when she was a subject advisor. At some stage when she was the subject advisor and was visiting the school, she discovered on the learners workbooks that some work was not covered and, yet such work was contained in the exams, so she asked that the exam be postponed for the learners to afford them opportunity to cover the uncovered work. At that time, she was with the Circuit Manager, Velaphi and he together with Employee agreed, and she then left the school.

114. On charge number 2: in 2018, the school results dropped again and the district Director called the Employee to the accountability session in 2019 held at the beginning of the year. The Employee did not attend the session.

115. She also has her accountability sessions on a quarterly basis, and the Employee did not attend those. In addition, she has principals’ meetings which are held monthly, but skipping some of the months. The Employee only attended one of such meetings and did not attend the rest.

116. In January 2019, he came back to school.

117. On charge 3: since the beginning of 2018/2019 a time table must be done before school closes every year, since the Employee was absent during the year 2018 and 2019, the school’s time table was not well drafted. Also, the school’s premises were not clean in January 2018 and 2019. The whole school environment was not conducive.

118. The time table directs the teaching of subjects and the times allocated on a weekly basis. There was no permanent time table at the school, the school was using a weekly time table and did so for a long time, something that is not allowed.

119. There were no basic school functioning policies such as admission policy, code of conduct for both learners and educators, etc. There was no chalk and she had to ask a neighbouring school for that.

120. In 2017, she intervened already by involving the SADTU at a local branch (his union) and they agreed on a developmental programme for the Employee (page 4-B). The Employee also was present during such intervention and the times were changed to accommodate him as he felt that he did not need to spend more time on other schools.

121. The programme did not kick-start, as the Employee was supposed to go to the specific schools and he did not on any of the schools where he was assigned to go and observe.

122. In 2017, she met with Sokhele, after she had gone to the school and the Employee was not at school at the time. She was with NATU representative and wanted to speak to the Employee about bad relations amongst the teacher at the school. That was towards the year end exams and they wanted to appoint a Chief Invigilator for matric exams. The Employee was not at school.

123. School principals are supposed to submit many documents to the Circuit on a quarterly basis and these include: beginning of the year – analysis of results for grade 10-12 of the previous year. The Employee was not submitting these on time and in 2017, the trial exams had to be collected from the school by another official, when in fact, they should have been submitted to the Circuit by the Employee.

124. Also, annual financial statements at some stage, the Employee was one of others whom were called to the Circuit offices for failure to submit them. This is important because failure to submit it means the school cannot be given money.

125. In 2017, the Employee failed to submit school improvement plan for 2016, and again in 2019 for 2018, plans that must be submitted by the school.

126. Also, there is annual academic performance report which the Employer never submitted throughout his tenure as the school principal.

127. In grade 12, they write final examination for Life Orientation in September and at the school, the learners could not start at 09h00 as scheduled because the paper was not collected on time. The same went for the History subject, where the paper was again not collected on time and after he was informed of such, she made arrangements with a neighbouring school for the copies to be made and availed to the school.

128. From 2017 to 2019, learners were not given their reports quarterly, as required, but were only given such at the end of the year only.

129. She never criticised the Employee in front of parents.

130. The Employee never called her before sending the sick leave application forms to her. The letters on pages 17, 23 and 47 were not sent to her on time in terms of the leave policy.

131. Cross examination – the Employee was directly reporting to her. Leave forms must be submitted with two days according to leave measures policy. She does not know the provisions of leave dispensation. Leave measures is part of leave dispensation.

132. If a person is not at work, such a person must report. Leave measures talk to how leave form must be submitted.

133. She does not have the minutes of the principal’s meetings, but she used to tell the principals to report their whereabouts and to submit leave forms within two days. This matter is old and she could not have kept the documents until this far. She kept them until the appeal outcome in 2021 and she now does not know where they are.

134. The issue of two days on submission of leave forms is a standing rule, but she cannot have been expected to go to the school every day. From 22nd May until 3rd August 2017, when she went to the school and found the Employee absent, she would call him telephonically.

135. The policy stipulates that she needed to give him the annexures and she did, however, such might not be in the bundle since not all documents are contained in the bundle.

136. She wrote the letter on page 15-B, informing the Employee about his developmental programme. At the time she wrote it, she did not have access to the printer, hence she could not sign it.

137. He completed the leave form on annexure A (bundle B) and she signed it and she did not recommend it because she knew nothing about it. The leave was no longer valid for the Employee as he had already exhausted his 36 days.

138. The annexure A she talked about is not one of Temporary Incapacity Leave.

139. She completed the leave form on page 58-B on behalf of the Employee and since he was absent, she has the right to complete and sign the leave form for him.

140. She cannot dispute that the leave dispensation allows her to sign only in the presence of a colleague in an instance where the Employee would have refused.

141. She informed the Employee of the leave without pay in their meeting before he absented himself, but when she wanted him to sign the document, she did not find him. She cannot recall if she told the Employee before she signed the leave form.

142. The 18th of September 2017 (page 60-A) is included in the leave form, the Employee was supposed to report to her that she was going to a meeting and he did not inform her, so she was not aware of that. She completed the leave form on 13th October 2017 and at that time, the Employee had not been at school since 14th September. She did not speak to him as she could not get hold of him.

143. The Employer’s instrument to control attendance is the time book and that is where he was supposed to indicate his whereabouts and he did not do that.

144. After 13th October 2017, he was still not on duty hence they had to arrange the chief invigilator for the exams. Such appointment is proof that he was not at school, as he was supposed to be the chief invigilator.

145. There is another person who was charged together with the Employee.

Mr Bongani Sipho Ntombela (Ntombela) testified under oath as follows: -
146. He is employed as a Chief Education Specialist, based at Umsinga area. He manages about 206 schools, including the Nkonza school. There are six circuit managers under his management.

147. Since the Nkonza school fell under Khoza, who in turn reported to him, Khoza used to inform him that there were problems in the school, whilst it was still managed by the Employee, including bad results, school dysfunctionality, learners not manageable and the drop in the school’s performance, due to the Employee’s absence from the school.

148. The Employee was not part and parcel of the school on a regular basis. The requirement is that if one is not at school on a particular day, they must report by at least 10h00, and when that is not possible, their next of kin should report on the person’s behalf. Also, leave application forms must be submitted within two days, otherwise such leave is deemed to be unauthorised, and that is what was happening in the case of the Employee.

149. Since the school was dysfunctional, it was no longer serving the needs of the community and the School Governing Body (SGB) also became involved and raised complaints.

150. Khoza also roped in SADTU to try and assist the Employee to work effectively as the principal of the school.

151. He was then informed that the interventions have failed to bear the required outcomes. The school performance dropped drastically until the Employee was removed and only then did the performance improve.

152. The school results improved as well as learner enrolment increased from about 96 learners to about 300, the PPN (teacher complement) which had dropped to four in 2020, went up to seven. These were results of gradual improvements at the school.

153. Cross examination – One of the roles of a principal is to ensure that the school environment is conducive to learning, and the moment the school is dysfunctional, parents vote with their feet and remove children from the school, whilst the opposite is also true as parents take their children to schools that are functional and where they have confidence in.

154. The moment the environment is conducive, there will be good relations, basic functionality will be in place, such as learners’ attendance, etc. When the principal, as the head of the school is not available, the environment is affected.

155. He became the Chief Education Specialist in 2019, and when the issues at the school started, he was not a SADTU steward.

156. Khoza is his colleague and she also reports to him, so she reported to him about the challenges persisting at the school and the interventions made to mitigate them.

157. Khoza conducted investigation and the report thereof led to the charges being laid against the Employee. The interventions include the developmental programme drafted, which came to a failure. Khoza exhausted all avenues as attempts were done optimally. Charging the Employee was a last resort.

158. As Circuit managers, where there were challenges in a specific school, they would visit such school together with the circuit manager responsible. He has at some stage visited the school, together with Khoza in an unannounced visit, and he witnessed the issues Khoza had been raising as they were recorded in the books, such as his absence, the school’s status and the Employee failed to produce the very work that he is paid for. That is why he did not take as the fact, the issue of saying there was bad blood between the Employee and Khoza, had the Employee done his job, and there would have been no basis for bad blood.

159. During his visit to the school, it became evident as the Employee was absent and the issues raised by Khoza were obtaining at the school.

160. It was the responsibility of the Employee to report to his supervisor, Khoza, when he was not to be at school, and to do so by at least 10h00, or if he was severely ill, his next of kin should have done so on his behalf.

161. He did not verify whether Employee was failing to comply with the leave policy, from the Employee, he relied on the reports from Khoza.

162. Attempts made where SADTU was involved and a developmental programme drafter, which the Employee failed to cooperate with. Evidence of the community not being happy is that the parents removed their kids from the school.

163. At the beginning when the Employee started, the school worked very well and the results improved. When the performance suddenly dropped, he used to communicate with the Employee and the Employee would tell him that he was not in good terms with Khoza. He then would tell the Employee that the issues that Khoza was raising were part of his (Employee’s) responsibilities.

164. He also gave the Employee three schools that he can moved to, temporarily, and those are: Fisokuhle, Phakwe and Ntabende. These schools are outside of Khoza’s supervision. He told the Employee to think about these options and revert back to him, and the Employee never came back to him. After a while, he asked the Employee why did he not come back to him and the Employee said the communities in the three schools did not want people who were from outside these areas.

165. The above conversations were done by him directly with the Employee, verbally, only after the Employee would have made his choice, then he was going to take it to a formal meeting and formalise such in writing.
Mr Sikhumbuzo Remember Mbatha (Mbatha) testified under oath as follows: -
166. He is employed as the Circuit Manager for Umnambithi area. He was the chairman of SADTU in 2019 to 2021 in the area in which Nkonza school falls, and that is how he knows the Employee as the principal in the said school.

167. There were reports by the Employee between 2017 and 2020, such that there was a sour relationship between himself and Khoza, and that that led to the Employee not to perform his duties well, as Khoza was interfering at the school.

168. Around the same period, Khoza complained about the Employee’s absence from the school and also failing to perform his responsibilities.

169. A meeting was then held with the Employee and Khoza and himself in which Khoza and the Employee gave reports. In the meeting, they resolved to support the Employee and agreed that Khoza and SADTU will draft a programme in this regard. The programme was then put in place (page 4-B). By that time, Khoza wanted to charge the Employee and the meeting with the union agreed to not charge him, but draft the developmental programme.

170. The programme was supposed to be concluded by June 2019. About a month or so before June, Khoza contacted him and told him that the programme did not materialise and that the Employee was not at school. She also asked him to contact the Employee and establish what happened.

171. He verified with two other principals who were involved in the programme, and those are from Nonyana school and from Lewis school. The two principals confirmed what Khoza had told him.

172. In 2021, Khoza contacted him again regarding the Employee and at that time, he told her that he was no longer in the area.

173. Cross examination – In 2021, he did not discuss the issue with Khoza, he told her that he was no longer with SADTU.

174. The Employee was supposed to go to Nonyane and Lewis, so his call to the two schools’ principals was to verify whether the Employee went to them or not. Khoza also told him that she was struggling to get hold of the Employee, he she phoned him.

175. He does not know anything about the Employee’s developmental programme having been changed such that the other two school’s principals would go to the Employee’s school, not as originally agreed.

176. He was not told the reasons as to why the programme did not materialise. He is not sure of the dates in the programme as he did not participate in determining the dates. The agreement was for the Employee to go to the two schools and then go back to his school to implement learnings on the focal areas that were earmarked for development.

THE EMPLOYER ARGUMENTS
177. In respect of count one, the Employee agreed that he would be absent from work and that he reported his absences to the clerk of Khoza, and then post his leave forms to the same office. Khoza’s testimony is that the Employee did not report his absences, hence his leave became leave without pay. If the Employee would be absent, he needed to inform Khoza as his supervisor and he failed to do that, but instead, informed her clerk without any reason for not reporting to Khoza.

178. It is not in dispute that Khoza did not receive any messages from the clerk and the clerk had no obligation to pass any messages from the Employee to Khoza.

179. The Employee’s absences led to the malfunctioning in instances of meeting deadlines for submissions and failures to administer assessment at the school in a proper and credible manner.

180. It is also not in dispute that as the Employee was absent, the school’s performance dropped, whereas the school performed very well when the Employee started at the school as a principal, until he absented himself.

181. The Employee failed to discredit Khoza and therefore the Employer’s version must be accepted as he was fairly found guilty during the disciplinary hearing.

182. The Employee failed as a principal at the school and the drop in the school’s performance, which justifies the sanction of demotion, although he was supposed to have been dismissed.

183. Section 28 (2) of the Constitution of the Republic of South Africa provides that the child’s best interests are of paramount importance in every matter considering children. In this case, it has to be kept in mind that the Employee’s actions were not in the best interests of the child, as the school underperformed due to his absenteeism.

ANALYSIS OF EVIDENCE AND ARGUMENTS
184. It is not in dispute that the Employee has sent the leave forms to Khoza’s office as reflected in the bundles, and also that he sent the sick notes. The Employer’s version is that such were not sent in accordance with the leave policy which stipulates that they need to be sent within two days, and also, that the Employee failed to report his absence from the school.

185. Further, it is not in dispute that Khoza completed a leave without pay form on behalf of the Employee from September 2017 to December of same. In addition, it is common cause that when the Employee started as the Principal at the school, the school results improved for two consecutive years until 2017, starting with 100% and then 90%.

186. The Employee testified that since 2011 when he was still the HoD, he noticed that his relationship with Khoza who then was the subject advisor, was not right as she would come to the school and criticise him in front of the staff, and this worsened 2015 when she became his supervisor as he was the principal. She would criticise him in front of staff and School Governing Body members (SGB).

187. The above submission was denied by Khoza.

188. It must be borne in mind that the purposes of cross examination is for the evidence to be tested. In this case, it unfortunate that the Employee, having called three witnesses, all of his witnesses’ testimonies were not put to the Employer’s witnesses. This is vital, particularly as the Employer’s witnesses occupied senior positions within its employ.

189. In NUM and another v CCMA and others [2018] 3 BLLR 267 (LAC) on para 14, the Labour Appeal Court set aside an award where the Commissioner found for the Employee on facts that were not put to Employer’s witnesses. It was held: "From the record, it is apparent that the Labour Court correctly determined that the allegation of racial abuse had not been put to the employer’s witnesses in cross-examination. The purpose of a proper cross-examination is to place a one-sided version, which often results from examination-in-chief, into proper perspective by eliciting facts which place a different complexion on the matter, or by demonstrating that the witness is untruthful. In eliciting from an opposing witness facts which are beneficial to the case of the cross-examiner’s client and to put such client’s opposing and contradictory version to the witness, the decision-maker is placed in a position which permits evidence to be properly and appropriately assessed. Since key aspects of the employee’s case were not put to the employer’s witnesses in cross-examination and had not been canvassed in the evidence of those witnesses in chief, their version on such aspects was not placed before the Commissioner. The result was that the Commissioner was unable to determine the issue before him in the manner required".

190. So the Employee’s witnesses to the extent that it speaks to the disputed issues cannot hold weight, and this includes evidence given by Mthembu where he stated that Ngema and Khoza told the Employee that they did not need him at the school, and also, that the challenges at the school were started by the issues relating to confiscation of cell phones.

191. It remained incumbent upon the Employee to substantiate his claim that the problems at the school were cause by the fact that his relationship with Khoza was not right and that that was due to Khoza’s fault of criticising him in front of teachers and parents. The Employee failed to substantiate the said claim.

192. On the issue of general failure to present himself to his workplace, being the school, the Employee firstly denied ever being absent from the school without informing Khoza. I must say that this goes to the heartbeat of the alleged malfunctioning of the school and the deterioration in its results.

193. The Employee, in his denial of ever absenting himself without informing Khoza relied on the leave forms and the sick notes that he submitted.

194. The Employee’s claim that on 18 September 2017, he attended the invigilators training in Dundee is also unsubstantiated. The Employee had ample time to collect a copy of the attendance register from the office to prove his attendance, and he as not done so, in a period that spans no less than two years.

195. Regards must be had to the fact of Khoza’s testimony, which pointed to specific seven consecutive days in May 2017 as well as the fact that in September 2017, the Employee was absent from the school for the whole year, and he only came back in January 2018. Khoza further testified that this pattern continued again in 2018 when in August of same, he disappeared for the rest of the year, until January 2019 when the schools reopened.

196. The evidence mentioned afore which is very specific and pertinent clearly lays out extended periods of absenteeism by the Employee at school, ranging from about three months consecutively in 2017 and about four school months consecutively in 2018. The Employee did not dispute the aforementioned testimony, except his bare denial accompanied by his unsubstantiated claim that he never absented himself without reporting to Khoza.

197. During cross examination, the Employee mentioned that he submitted his leave form (p17-A) to Khoza’s office on the same day before 10h00, 19th September 2017, the date in which it was due to begin, after he started not feeling well and went to the doctor around 08h00. He stated that he did not call Khoza and inform her that he was not going to be at school.

198. The Employee did not agree that if he was not going to be at school, he needed to report before the due date so that the Employer can make arrangements for a replacement. He further stated that at about 06h00 on the same day, 19th, he tried to call Khoza and her cell phone was on voicemail, yet during his evidence in chief, he said he that he only sent the leave forms to her. Also, the Employee did not put to Khoza that he at 06h00 tried to call her and her phone was on voicemail, neither did he mention whether he left a voicemail in her cell phone. It also weird that he would have forgotten to mention this in evidence in chief, as well as to put it to Khoza, when her testimony touched on numerous occasions of her failed telephonic attempts to reach out to him.

199. The Employee did not contradict Khoza’s testimony, that subsequent to his prolonged absenteeism starting from 14th September 2017, she phoned him and told him to submit annexures and also that he no longer had sick leave days available as he had already exhausted his 36 days. I therefore find it quit bizarre that the Employee still expected to get paid, when he was fully aware of the fact that he no longer had sick leave days available.

200. Khoza averred that following the school’s poor performance in 2018, the district Director called the Employee to the accountability session in 2019 held at the beginning of the year and the Employee did not attend. She also has her accountability sessions on a quarterly basis, and the Employee also did not attend those. In addition, she has principals’ meetings which are held monthly, but skipping some of the months and the Employee only attended one of such meetings and did not attend the rest.

201. The Employee mentioned that he was not aware of any accountability sessions scheduled which he did not attend and further that the Employer did not provide any dates for such.

202. Khoza stated that she did not have the minutes of the principal’s meetings, but she used to tell the principals to report their whereabouts and to submit leave forms within two days. She further stated that this matter was old and she could not have kept the documents until this far.

203. I have already dealt with the issue of submission of leave forms and the only issue I now turn to is the disputed issue of accountability sessions. Regards must be had to the fact that the sessions are threefold: One meeting held by the Director at the beginning of the year; Khoza’s quarterly meetings, and her monthly principal’s meetings.

204. Khoza stated that since the matter is old, she no longer had the documents relating to the above mentioned meetings.

205. In Govan v Skidmore [1952] (1) SA 732 (N) the Court held that it was trite law that in general, in finding facts and making inferences in a civil case, the Court may go upon a mere preponderance of probability, even though in so doing it does not exclude every reasonable doubt, so that one may, by balancing probabilities select a conclusion which seems to be the more natural, or plausible conclusion from amongst several conceivable ones, even though that conclusion may not be the only reasonable one.

206. The fact that that schools’ performance dropped in two consecutive years is not in dispute. I also have regard to the fact that the Employee has evidently absented himself from school for a very long time within 2017 to 2019, so it is unlikely that he would have availed himself for the quarterly and monthly meetings organised by Khoza, when he could not avail himself at the school on a regular basis, where he basically was supposed to be. I also find it plausible that the Director would have held a meeting with the poorly performing schools, and those include Nkonza High school.

207. In view of the above, the probabilities weigh in favour of Khoza’s submission that the accountability sessions were indeed put in place, and the Employee’s denial in this respect is dismissed.

208. When coming to the issue of basic school functionality, Khoza submitted that since the Employee was absent at the beginning of 2018 and 2019, the school’s time table which is compiled at the beginning of the year was not well drafted and there was no permanent time table as the school used a weekly time table for a long time, something which is not allowed. Similarly, the school’s premises were not clean in January 2018 and 2019. Additionally, the whole school environment was not conducive to teaching and learning. Likewise, there were no basic school functioning policies such as admission policy, code of conduct for both learners and educators, etc. There was no chalk and she had to ask a neighbouring school for that.

209. Intriguingly, the Employee did not dispute the above testimony, save to say during his evidence in chief, he mentioned that there is no functionality that was explained to him which he allegedly failed to ensure at the school, neither does he know of any basic school functionality that he was supposed to implement.

210. During his cross examination and when it was put to him that basic school functionality includes availability of policies, he mentioned that there were policies at the school, so he did not fail to put such in place and ensure school functionality.

211. The Employee, according to his testimony had been a principal for seven years, yet he mentioned that there was no school functionality that was ever explained to him, meaning he was oblivious to such. After Khoza has specified one basic school functionality being a time table which is critical in ensuring that the school functions and directs the teaching of the subjects was not in place, he chose not to challenge that, together with the other odious areas that she pointed to, which made the school functionality not to be in order.

212. I find the Employee’s evidence to be tenuous in this regard, as he was experienced enough with an experience of more than 20 years in teaching. The situation that was evidently prevailing at the school as explained by Khoza and largely supported by Ntombela, paints an environment that was indeed chaotic and unconducive to the normal functioning of the school, and there is credible evidence that these conditions are as a consequence of his elongated absenteeism from the school.

213. Further worth noting is the common cause fact that Khoza made an intervention to assist the Employee, and involved his union at the time and pot a clear developmental programme in place for the Employee. It is common cause that the programme failed and the Employee appeared to prevaricate about the reasons for its failure, stating that it failed his identified mentors were supposed to come to his school and they did not. The foregoing statement by the Employee is clearly not borne out of facts as it is perspicuous in the programme that he was supposed to present himself to the mentors, not the other way around. There is no evidence to support that the programme was changed and all three Employer’s witnesses testified that the programme was supposed to be implemented as it is reflected.

214. The Employer therefore attempted to assist the Employee and his failure to come on board can only mean that he has himself to blame.

215. Having viewed the evidence holistically, it is my view that the sanction issued by the Employer is fair and appropriate.

AWARD

216. The Employer, Department of Education did not commit an unfair conduct when it found the Employee, MI Maphanga guilty and demoted him from being a Principal to being a Head of Department.

217. The matter is dismissed.

Vuyiso Ngcengeni
Panelist / Commissioner