ELRC225-22/23GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No: ELRC 225-22/23 GP

In the matter between

PEU obo Lehlabaphiri Audrey Applicant

and

DEPARTMENT OF EDUCATION GP Respondent


ARBITRATION AWARD


The venue of arbitration: Braamfontein

Date of award: 06 May 2024

Parties present:
Arbitrator: Mr C Khazamula
Applicant: Ms A Lehlabaphiri
Applicant’s Representative: Mr M Mphahlele/V Sibanyoni
Employer’s Representative: Ms E Magadla
Interpreter: Mr M Myeza

DETAILS OF HEARING AND REPRESENTATION

1. The matter was an unfair dismissal dispute referred to in terms of Part C of the Education Labour Relations Council (“the Council”) constitution.

2. The arbitration was scheduled on 24 November 2020 and continued intermittently on various days until it was concluded on 26 March 2024.

3. The Applicant during the opening statement and in loco inspection was represented by Mr Mogole Mphahle (“Mphahle”) an official of the Professional Educators Union (PEU).

4. The Applicant changed Mphahlele as her representative and was represented by Mr Vusi Sibanyoni (“Sibanyoni”) an official of the PEU. Sibanyoni represented the Applicant during the Respondent’s evidence stage and the Applicant’s evidence in chief.

5. The Applicant again reverted to Mphahlele as her representative until the conclusion of this arbitration.

6. Parties submitted opening statements and conducted an in loco inspection at Leratong Senior Primary School and the Applicant was represented by Mphahle.

7. Parties relied on a common bundle of documents as evidence and they were named Bundle A for the Applicant and Bundle R for the Respondent.

8. Parties further submitted written closing arguments.

9. The proceedings were digitally recorded and where applicable the services of an interpreter were utilised.

ISSUE(S) TO BE DECIDED

10. Whether the dismissal of the Applicant was substantively fair or not.

RELIEF SOUGHT

11. The relief sought by the Applicant is Reinstatement with back pay.

BACKGROUND TO THE ISSUE

12. The Applicant was employed by the Respondent in the position of Deputy Principal in January 1997 at Leratong Senior Primary School (“Leratong”).

13. The Applicant was charged with six (6) allegations of misconduct and she was dismissed on all allegations following a disciplinary enquiry.

14. The Applicant referred a dispute of unfair dismissal to the Council and the only issue in dispute was the reason for her dismissal.

15. I was thereafter appointed by the Council to arbitrate this dispute.

SURVEY OF EVIDENCE AND ARGUMENT

The Respondent’s case

16. The Respondent’s 1st witness Sunnyboy Masete Ramokgobathe (“the Principal”) testified he was appointed as the Principal at Lerotong. The Applicant was his subordinate in her capacity as the Deputy Principal.

17. Concerning allegations 1 and 2, the Principal testified that on the morning of 17 March 2020, Neo Anna Mohlomi (“Mohlomi”) in her capacity as the head of the department for the foundation phase at Leratong (“the HOD”) told him that she had arranged with the Respondent’s district office (“the district”) to submit the school schedules for the foundation phase instead of the scheduled dated on 18 March 2020. This made the Principal to be suspicious.

18. The Principal asked the Applicant if the reports were printed and she told him that there were no reports which were printed. Ms Majebe (“Majebe”) told the Principal that she completed her reports the previous day and was still to complete the remaining ones.

19. The Principal went to Ms Imoukhoume’s class and found her busy with the reports. Imoukhoume told him that she, Ms Moseki, and Ms Khumalo got the reports.

20. The Principal received a call from the Applicant that she was looking for the administrator to print the reports of the foundation face. He told the Applicant that the reports were already printed however the Applicant denied that the reports were printed.

21. Majebe called the Principal and told him that he did not hear her clearly in the morning and that she was going to administer the report when they returned from the district.

22. The Applicant went to the Principal’s office and asked to print the foundation phase report and he told her that the reports were already printed.

23. The Applicant submitted a letter on 18 March 2020 raising concerns about the Principal’s accusations against her related to the printing of reports (“the Applicant’s concern letter”) to the Principal. In the Applicant’s concern letter, the Applicant stated that only Immakoume’s class reports were printed however the Applicant included Majebe’s report which was contrary to what she said that only Immakoume’s report was printed in the letter.

24. The Principal submitted that the reports were fraudulently printed on 16 March 2020 , two (2) days before the schedules were verified by the district and the Applicant did not follow the procedures when printing the reports and they were printed without his knowledge and authorisation.

25. The Principal detailed the report printing procedure. He submitted that a meeting was held with the School Management Team (“SMT”) on 06 March 2020, where he communicated that he would quality assure throughout the process of punching marks on the system and that he would not sign anything he did not authorise .

26. The Applicant acknowledged that she printed out reports before ratification and that she did not request permission from the Principal . The Principal disagreed with the Applicant’s reason in her response letter to the allegations of misconduct dated 24 August 2020 and submitted that the meeting of 06 March 2020, clearly outlined the process.

27. The Principal submitted that if it was a norm to print reports before verification, the Applicant would not have said that she printed Imokhuome’s reports to check the class average. Only Mohlomi had the authorisation to print reports after the ratification by the district and distribute them to teachers including the Applicant who reported to Mohlomi as a foundation phase teacher.

28. On 17 August 2020, the Applicant wrote to the Principal requesting him to print reports that were already printed . According to the Principal, this was an indication of the Applicant’s dishonesty.

29. Concerning allegation 3, The Principal testified that the Applicant failed to take routine instruction from him and Muzikayise Peter Nhlapo (“the IDSO”). The IDSO came to Leratong because there was a delay for the parents to receive the reports for the term and the Applicant was denying that she printed the reports.

30. They requested through the School Governing Body (“the SGB”) to request the Circuit Manager to address the parents because they did not receive the reports. This meant that the issue was being addressed by the district. After addressing the parents, the district requested the Principal to get the schedules from the Applicant for verification. If he was happy, then the report could be printed and given to the parents.

31. The Principal requested the schedules from the Applicant however the Applicant refused. He reported that to the Circuit Manager and the IDSO was sent to the school. The schedules were given to him in front of the IDSO.

32. For the Principal to check the schedules, he needed the raw mark sheets, moderation tools and the learners' scripts . Mohlomi brought all the mark sheets except the Applicant’s mark sheets. Mohlomi could not get the mark sheet and the moderation tools from the Applicant because the Applicant told her that she did not know where they were. The Applicant further told Mohlomi that the learner scripts were lost.

33. After The Principal reported his inability to carry out the quality assurance because of the Applicant’s missing documents, the IDSO came for the second time to the school. The IDSO requested the documents to be submitted and the Applicant told him that they were missing.

34. The Principal submitted that according to the school systems, the documents should have been provided to Mohlomi for filing in her capacity as the HOD. The Applicant was still saying that he kept the documents in her class.

35. They were surprised because it was only the Applicant’s class documents that were missing. The Applicant during her disciplinary enquiry stated that the requested documents were found in her car. The IDSO later compiled a report . The Principal submitted that the school was frustrated because the documents were not found from the HOD and the Applicant whereas the documents were not supposed to be kept in her class but at the HOD.

36. Concerning allegation 4, the Principal testified that Mr Semenya from the LTSM unit came to the school for monitoring and other related functions. Before then they had visitors from the Youth at Work IT team (“the IT team”) who were supposed to be in the school for twelve months.

37. The Principal requested the Grade R practitioner to get the Applicant so that she could take the IT team to the computer lab to check the computers. As the Principal was walking to his office, he saw the IT team in the reception. The practitioner told him that she went twice to the Applicant to get the key to the computer lab and she did not get it.

38. The Principal went to fetch the key and took the IT team to the computer lab and the Respondent’s General Worker, Pakiso Jan Sikhosana (“Sikhosana”) opened the computer lab. They could not get into the computer lab because there were a lot of materials lying around. The Principal was shocked because the computer lab was turned into to secret storeroom of the LTSM. The items in the secret room were new. He told the team to leave and Sikhosana locked the computer lab and took the keys back to the Applicant.

39. The Principal went to the LTSM coordinator and his team and told them about what he saw at the computer lab. He called the SGB chairperson who was not immediately available. The following day they went to the computer lab and took pictures and all of them were shocked about what they saw at the computer lab. There was more LTSM at the computer lab than what was in the official storeroom.

40. The Principal submitted that the Applicant wrote a letter on 16 February 2021 and stated her displeasure with how the distribution of LTSM was done and felt that the process was unfair. The Applicant was an educator and she was supposed to be distributed her LTSM similarly to other teachers. The Applicant in her complaint letter was justifying things that were found in the secret store room. She requested materials whereas the materials were hidden by her in the secret storeroom.

41. Sikhosana told the Principal that after they viewed the computer lab, the Applicant instructed him to the LTSM boxes from her class to room twelve (12) because she reliased that after they discovered the secret room they would find things in her class.

42. The LTSM at the school was procured based on the need analysis. The Applicant had not disclosed the LTSM that was in her secret store room. The door key was only possessed by the Applicant and the last time the Principal went to the computer labs there were chairs and other things other than the LTSM.

43. Concerning allegation 5, the Applicant instructed Sikhosana to burn a box containing LTSM which was the SGB prerogative to do so. Sikhosana stated that there was one (1) big box that together with Mr Lugayeni could not carry. They divided the box into three (3) small boxes and took them to their changing room to be burned.

44. After the Principal inspected the boxes having been told by Linda Bigboy (“Linda”) he found that there were new and old LTSM materials including stationary in the boxes. There were books for the first term which was ending in March which should have been used until the 1st term. According to the Principal, the Applicant wanted to burn the books because they were a source of the document requested in allegation 3 which she intended to conceal.

45. Concerning allegation 6, the Principal stated that if the Applicant in her letter requested Mike to print Imouokhome reports then who printed Majebe’s report and the other educators? According to the Applicant, she requested Moseki to deliver them to Jenet Imouokhome (“Imouokhome”) which was not her duty but the duties of the HOD. The Applicant instructed Moseki to tell Imouokhome that she should not tell anyone that she gave them the reports.

46. The Principal was amazed when the Applicant called him that she wanted to print the report. It was fortunate that in the Applicant’s complaint letter, she added Majebe’s report instead of Imouokhome’s report. Majebe commented on her reports and signed them.

47. In the Applicant’s concern letter, the Applicant made a false statement when she said only Imouokhome reports were printed. To state that five (5) teachers did not have their reports which was a false statement because there was Majebe’s report. If the Applicant wanted to check Imouokhome’s class average why did she print Majebe’s report? The rest of the foundation phase reports were printed.

48. On 18 May 2020, Ramakgobathe called Imouokhome asking if she completed her reports and she told him that she was busy. Imouokhome said four (4) educators were given reports by Moseki excluding the Applicant and Mohlomi the HOD. The Applicant’s letter proves that she was purposely lying against the education system.

49. The Respondent’s 2nd witness Jennet Imouokhome (“Imouokhome”) testified on allegations 2 and 6 that she was a foundation phase educator at Leratong. Sometime in March 2020, four educators (“herself, Khumalo, Majebe & Moseki”) got a report from Ms Moseki. Moseki told her not to tell other educators that they got the report. She took her reports and went to her class.

50. The next day, the Principal called her requesting reports. She told him that she was busy with the reports and she would give him after she was done with them. After the call, she went to Moseki and told her that the Principal wanted the reports from her.

51. The Principal came to her class and asked who gave her reports. She was nervous to respond because of what Moseki told her eventually she told the Principal that it was Moseki. Immakoume went to Moseki to her that the Principal was in her class and she told him about the reports. Moseki became angry and said she could have told him something different.

52. The Respondent's 3rd witness Hessi Ntsala (“Ntsala”) testified she was an HOD for the intermediate and senior phase at Leratong. Concerning allegation 1, Ntsala submitted that they needed authorisation from the Principal to print reports. Ntsala detailed the procedure for the printing of reports. Ntsala submitted that the punching of marks was discussed at the SMT meeting and the principal stated they should not print the reports before his authorisation.

53. Concerning allegation 5, Ntsala submitted that she was the LTSM coordinator at Leratong. The school procured LTSM once at the beginning of the year. She detailed the procurement process and stated that they order more LTSM because there could be additional learners.

54. The LTSM was placed in the only store room at the back of the Principal’s office at Leratong and not at Tataisang. The LTSM committee distributes the LTSM directly to a teacher based on their need analysis. If there was LTSM that was left it would be stored in the storeroom.

55. Ntsala submitted that the Principal told her of the LTSM that was discovered in the computer lab and asked her if she was aware. She told the Principal that was not aware and never went to the computer lab. Ntsala called the LTSM district coordinator to check if they were aware of the LTSM in the computer lab and no one knew about that.

56. The Respondent’s 3rd witness Pakiso Jan Sikhosana (“Sikhosana”) testified that he was employed as a General Worker at Leratong.

57. In February 2021, the Applicant asked him and Mzwandile Lugayeni to take the box from the door of her class to burn it. Because it was late, they stored the box in their changing room to burn the box the following day.

58. Linda, came to their changing room to bring money so that they could buy him a soft drink. They told Linda to take a piece of paper to write down the flavour of his soft drink. When Linda removed the paper, a crayon pencils appeared. They told Linda that they were going to burn the box because it was rubbish as they were told by the Applicant.

59. After removing the crayons, that’s when a box of pencils appeared. Linda took that box and said he was going to show it to The Principal. The Principal came with the LTSM members and asked about the box. They instructed him to place the box outside so that they could see its contents. They unpacked the box and removed the rubbish which was on top.

60. They took boxes that contained the fruits for the learners and used them to divide the boxes. Important books and stationery were packed in three (3) boxes. The Principal instructed them to take the three (3) boxes to his office.

61. Sikhosana testified about room 12 and submitted that room 12 was a class that was empty and not being utilised which was at the corner next to the computer lab. The Applicant’s class was room 10. At the instruction of the Applicant, he took boxes which had stationery from her class to room 12. Sikhosana knew that it was stationary as the boxes were new and not opened.

62. People from the district came to the school walking in the foundation phase. They asked what the books were doing in room 12 and he told them that he was instructed by the Applicant to place the box, some books which learners were taught by the Applicant and craft houses in room 12.


63. The Principal sent him to the Applicant to request the key for room 12 which she gave him and he opened room 12 for them. Sikhosane went back to call the Applicant and offered to help her remove the cutbox houses because she was using them since room 12 was going to be locked however the Applicant appeared to be disinterested.

64. The Principal instructed Sikhosana to take the key back to the Applicant however the Applicant refused to take the key. The boxes were taken and placed in the computer room.

65. Respondent’s 4th witness Musikayise Peter Nhlapo (“the IDSO”) concerning allegation 3 testified that his first intervention at Leratong was on 15 October 2020, after the report he got was that the Applicant was refusing to give the schedules to the Principal. When he got to the school he found that there were challenges and finally the Applicant gave the schedules to the Principal as per his instructions. The reasons for refusal were that the Applicant did not trust the Principal. The Principal had to sign the schedules for ratification by the district. The IDSO wrote the report about his visit .

66. On 19 October 2020, he intervened again after the Applicant as a grade one (1) educator was requested by the Principal to give him the raw mark sheets and the learners' scripts so that he could quality assure them which were not forthcoming. The Applicant was adamant that the documents were at her class and they were missing.

67. The Applicant told them that the documents were missing which made it difficult for the Principal to conduct quality assurance. This posed a problem and it was finally agreed that the documents could not be accessed. There other problem was that it was the Applicant’s only documents which were missing whereas the others were with the HOD. The admin assistant also did not have copies of the documents. This posed a problem for the school in that it meant that the school could not issue the report for the first term in March 2020 because the quality assurance was not conducted.

68. On 9 December 2021, the Applicant gave Ulanda Ramara, the employer representative during the Applicant’s disciplinary enquiry the documents. The IDSO felt disappointed because the Applicant was dishonest after he spent time on this matter. He was surprised that the Applicant found the documents in her car which she was using daily.

The Applicant’s Testimony and Evidence

69. Concerning allegation 1, the Applicant testified in her evidence in chief and confirmed that she attended the SMT meeting on 06 March 2020 however she disagreed with the contents of the minutes of that meeting. The Applicant submitted the Principal addressed only three (3) issues in the SMT meeting and the other issues contained in the minutes were discussed in another meeting.

70. The typed SMT minutes were not factual or corroborating the handwritten SMT notes. The typed minutes were authored by the Principal and they were typed for convenience. In the minutes The Principal stated that the meeting adjourned at 15H30 whereas the meeting was adjourned before 12H30 and the Applicant went back to teach.

71. Before the Principal could adjourn the meeting, he said some of the discussions were between himself and her in her capacity as Deputy Principal. After the meeting concluded the Applicant went to the Principal for the discussion to continue however the Principal told him that he was busy. The Applicant on several occasions continued to go to the Principal however he kept telling her that he was busy until she told him to call her when he was not busy. On 26 November 2020, the Applicant wrote a concern letter to the District office labour department because she was frustrated by the issue of protocol .

72. The Applicant detailed the process of assessment and submitted that she conducted moderation after the HOD had moderated. The Applicant sat with Mohlomi (HOD) for quality assurance. Once quality assurance had been completed, the school administrator would take the process over until the printing of reports. The reports and schedules would be printed and the schedules would be sent to the district office for verification whereas the reports would be kept in the Principal office to await the outcome of verification by the district. This was a normal practice and the reason for doing that was to be proactive.

73. The Applicant disagreed with the word fraudulent in allegation 1 because having printed two sets of reports for grades two (2) and three (3) he did not temper with the marks. The reports are not produced by her but they are produced by the SASAMS system. The printing of reports before schedules were verified by the district office was a norm and culture and she did not attend a workshop about the changes.

74. The date allocated for the school to submit the schedules to the district was 14 March 2020. She printed the report on 13 March 2020 because she wanted to try something and not the entire foundation phase because the school had challenges with the ink at the school.

75. Concerning allegation 2, the Applicant submitted that she did not say that she printed Imoukome reports. When she said I tried with Imouokhume in her 18 March 2020 letter meant that there was nowhere she said Imouokhume reports were printed. The reason she printed two (2) reports was to try to get a class average. Mike tested with Imouokhume class only whereas she tested with Majebe.

76. On charge 3, the Applicant testified that the Principal and the IDSO did not request raw mark sheets. The person who requested the raw mark sheet for the entire foundation phase was Ms Mohlomi (HOD) on 19 October 2020. She went to her class and could not find them where she kept them. She went to Mohlomi and told her that she could not find them.

77. After, the school report from the COVID-19 pandemic school closure, there was a deep cleaning from Bidvest and they messed up everything in her class after taking everything outside the class without even calling them. The Applicant stated that she later found the documents in the box of learner activities and she went to inform Mohlomi that she found the document however Mohlomi stated that The Principal did not want them even if she brought them.

78. The Applicant was called into the Principal’s office and she found the IDSO, the Principal and Mohlomi. The IDSO said he received a call that the Applicant was refusing to give the Principal the raw mark sheet and the Principal wanted to conduct the quality assurance. She told The Principal that it was Mohlomi who wanted the raw mark sheet but she could not find them. The Applicant told the IDSO that the reports had already been printed and her statement was supported by Mohlomi however the Principal pretended not to know that the reports were printed.

79. The IDSO told the Applicant that she did not assess the learners hence she could not produce the raw mark sheets. She told the IDSO that she assessed the learners and that Mohlomi was a witness because she submitted to her for moderation. Mohlomi confirmed that she gave the administrator the raw mark sheets. They went to the administrator and found the raw marksheet. The IDSO requested the moderation tools and the Applicant told him that the moderation is dealt with by Mohlomi. Mohlomi confirmed that.

80. Concerning allegation 4, the Applicant testified that she did not hide any LTSM material. She was storing materials belonging to the foundation phase. She learned about the computer lab where she believed that the school was keeping the LTSM for the whole school.

81. The Applicant submitted that the distribution of the LTSM during term 1 was distributed to them as opposed to each educator collecting the LTSM directly. The general workers delivered the LTSM directly to their classes. For the rest of the year, they would go to Ntsala if the need arose.

82. The Principal decided that all the LTSM for the term must be delivered to the foundation phase which was too many to be kept in class. She instructed the general assistant to deliver the entire foundation phase LTSM to her class.

83. The general assistant Mthembu reported a break-in with some items stolen and the Principal came to see what happened. The Applicant suggested to the Principal that they should move the stationary to computer lab. The stationary was packed in the corner and the Principal locked and left with the keys. At the time only Mthembu could unlock the computer lab.

84. In 2012, the Applicant asked the key to put the remaining materials which were put somewhere in the front inside the computer lab. During the year, if they needed the LTSM, they would request the key from the Principal and as time went by, the Principal gave her the key. The stationary which was kept was the one which remained before Mthembu resigned and Skosana was then inducted to open the computer lab door.

85. Concerning allegation 5, the Applicant disputed that she issued instructions to Sikhosana in 2021. The instruction was issued in 2020 to Sikhosana to burn the box. She did not know who Lukayeni who was mentioned in the allegation. In August 2020, after Bidvest completed deep cleaning, she was preparing the class. The learners were no longer going to use un-ruled books for term 2. She observed that Bidvest were not using gloves when they were moving books outside. She became concerned because the boxes could have been contaminated since it was after the Covid 19.

86. The contents materials she packed in a large box were not books but pencils, loose paper sheets, a broken ruler, an empty box of crayons and old Department of Education books. Sikhosana tried to lift the box but it was heavy and he called another general worker to help him. That was the last time he saw the box.

87. The second time was when they conducted in loco inspection and it was three (3) boxes. There was no new material in the large box and the materials found during in loco inspection were not the things he put in. The items in the three (3) boxes were almost new.

88. The Applicant disputed the allegation 6 and submitted that she never instructed anyone. The relevant witness was Moseki because she instructed Moseki. This was between Moseki and Imouokhome.

89. The Applicant’s 2nd witness Neo Anna Mohlomi (“Mohlomi”) testified that she was the former HOD of the foundation phase at Leratong and left in 2022. Mohlomi detailed her activities as the head of the foundation phase.

90. Mohlomi submitted that she worked with the Applicant during the quality assurance process and after they were done, she would take the schedules to the Principal for his signature and then the schedules would be submitted to the district for ratification. She would give the ratification report to the Principal who would then give authorisation for the reports to be printed. After the reports were printed, the Applicant would give the educators for commentary and she will bring them back to her. If everything was okay, then the Principal would sign as a final signatory and he bring back the reports to Mohlomi who would give them to the educators.

91. Concerning allegation 1, Mohlomi submitted that in 2020, she taught grade 3 in the foundation phase. The foundation phase had seven (7) classes. She did not see her class reports. During the first term, she did the moderation and the quality assurance with the Applicant. She asked Gugu who was the Respondent’s facilitator for assessment from the district to submit the schedules for verification earlier because she was not feeling well. After the schedules were printed, she took them to the Principal but he was not present. She left the schedules with Kgothatso who said she would put them in the Principal’s chair and thereafter she left to attend to the doctor.

92. The following day she came back and asked Kgothatso if the Principal had signed the schedules and Kgothatso told her that she must enquire with the Principal. She asked what was the reason and Kgothatso told her that the Principal said he was the one doing the quality assurance. Mohlomi told Kgothatso that she could not recall that the Principal was the one who was now doing the quality assurance and she would check if it was written somewhere in case she had missed it.

93. Mohlomi told Kgothatso that she was going to tell the Applicant and Kgothatso told him that she must not the Applicant that the Principal was refusing to sign. Kgothatso asked if they printed the reports already, and Mohlomi told him that she did not know and would ask the Applicant. Mohlomi thereafter went to tell the Applicant that The Principal refused to sign because the Applicant was the curriculum driver.

94. The Applicant and Mohlomi went to the Principal to enquire why he refused to sign the schedules. Mohlomi requested to leave because she had a doctor’s appointment. The Principal signed the schedules. She told the Principal that the Applicant would drive her to the submission venue and he said it was okay. Upon returning from the submission venue, Mohlomi told the Applicant to tell the Principal that everything went well and she would send an electronic message (“SMS”) to the Principal which she did. In the SMS message, Mohlomi asked the Principal to print the reports.

95. Imouokhome came to Mohlomi’s class to ask if she received her reports and she told Imouokhome that she did not receive her reports. Imouokhome said she thought she had received her reports and she got them from Moseki. Mohlomi submitted that she did not know what Imouokhome was talking about because she had to check if the reports were printed at all. Mohlomi was left confused after Imouokhome left. She did not know what transpired with Imouokhome reports since she had not signed any reports in term 1.

96. Mohlomi as she was about to exit her class to check with the Applicant, Khumalo came to her class. Khumalo asked where the reports were because as the HOD, they normally receive the reports from her. She told Khumalo that she was going to find out with the Applicant about the printing of reports. Mohlomi enquired with the Applicant that Imakaume received her reports and there were other remaining reports. The Applicant told her that she printed two sets of reports because she was checking something.

97. Mohlomi went to The Principal to check if he saw her SMS and asked if reports could be printed. The Principal told her that he was not in the mood to talk to her. She went to the Applicant to ask what was going on. The Applicant told her that she would or has written a letter to The Principal.

98. Because Mohlomi was getting frustrated, she went to the Principal with the SADTU site shopsteward to intervene. The meeting did not end well and Mohlomi wrote a letter requesting a meeting with the SMT so that this issue could be discussed. That meeting did not occur and the parents were coming to her asking for the reports.

99. Concerning allegation 3, Mohlomi testified that she was aware of the issue of the raw mark sheet. She was instructed by the Principal to collect all raw mark sheets from the foundation phase. She started collecting from grade one (1) and the Applicant told her she would look for them when she went to her class. Majebe also told her that she would look for them because they were disorganised as a result of Covid 19.

100. The Applicant later told her that she could not find the raw mark sheets to her surprise she could not find the learner scripts as well. She reported to the Principal that she could not find the Majebe and the Applicant’s mark sheets. The following day, the Principal requested moderation tools.

101. The Principal and the IDSO called Mohlomi and they said that the Applicant was refusing to give them the raw marksheet. She explained to the IDSO that the Applicant could not find the raw mark sheets for grade one (1). Mohlomi told the IDSO that she had evidence that the Applicant administered assessments for term one (1). Mike would have copies of the raw mark sheet he used to punch the results. Mike was called and he brought copies of raw mark sheets. As the HOD she was the one who had to provide moderation tools. After some time, the Applicant told her that she found learner scripts and raw mark sheets in a box after putting her class in order.

102. Concerning allegation four (4) Mohlomi testified that in January, the LTSM coordinator would call educators to collect stationary in the main store room at the back of the Principal's office for the whole year. They would only take them for a term and the rest Sikhosana would put them in the store room at the computer lab and pack them according to grades. Pakiso was the only one who knew how to open the store room at the computer lab. At the end of the year, there would be less stationary left.

103. Concerning the allegation five (5) Mohlomi testified that the Applicant told her that she would instruct Sikhosana to burn term one (1) material because of Covid 19 reasons. She submitted that the un-ruled books would not be used after term one (1). The Applicant showed her only one (1) box which contained a ten (10) litre plastic water urn in August 2020.

104. Mohlomi submitted that she was not aware that the Principal stated in the SMT meeting on 06 March 2020 that the Principal would conduct the quality assurance and he would not sign anything he did not authorise . The reason was that the Applicant was the curriculum driver and schedules would be signed by her. That’s how she was inducted when she joined the school in 2019 and they have been doing that until 2020.

105. The Applicant’s 3rd witness Gertrude Moseki (“Moseki”) testified she worked with the Applicant until retirement in 2022.

106. The Applicant gave her an envelope containing Imouokhome‘s reports and instructed her to give them to Imouokhome. The Applicant instructed her that she must tell Immakume not to tell other educators that she got the report.

107. Moseki went to her class and found other educators there. After a while, she saw Imouokhome through the window. She quickly opened the door and gave her the envelope with instructions from the Applicant. It was not true that other educators got reports from her except Mohlomi. She also did not get her class report.

ANALYSIS OF EVIDENCE AND ARGUMENTS

Allegation 1

108. It was a common cause between the Parties that the Principal must certify the schedule before being sent to the district for ratification unless he has delegated the responsibility to the Principal. Once the district has approved the schedules then the reports are printed.

109. The SMT meeting held on 06 March 2020 did not indicate any delegation of authority to the Applicant instead, the Principal took over the process of quality assurance and the authority to print the reports.

110. It was a common cause that the Applicant and Mohlomi attended this meeting however the Applicant and Mohlomi disputed the veracity of this meeting as far as the Principal’s involvement in the quality assurance process and the printing of reports however the Applicant did not cross-examine the Principal in this regard. During the Applicant’s cross examination, she could not provide a reasonable explanation as to why a contrary version was not put to the Principal.

111. Mohlomi contradicted herself when she testified that the Principal had to authorise the schedules before ratification and when she testified that the Applicant as a curriculum driver also had to authorise the schedule. Mohlomi’s testimony seemed to have been aligned to corroborate the version of the Applicant to rescue the Applicant’s case since the Applicant failed to dispute the version of the Respondent’s witnesses. Why would Mohlomi request Kgothatso to put the schedule in the Principal’s office for his attention and why did he have to SMS the Principal to report the outcome of the ratification if the Principal was not involved? The evidence of the Principal was more credible in as far as quality assurance remarks were consent and the reasons for doing so are plausible. After all, the Principal is the head of the school.

112. Mohlomi’s submission that the Applicant was a curriculum driver to support why the Applicant would be involved in the quality assurance process is not plausible because the Applicant reported to her as an educator. As the HOD of the foundation, in my view, Mohlomi should be the curriculum driver as all educators in the foundation phase reported to her including the Applicant.

113. According to the Applicant, the reports were printed when the schedules were printed for ratification by the district and submitted that it was a normal practice. This version did not deal with the common cause factor in that the Applicant had received a delegation of authority from the Principal to print the report let alone to sign for the schedules. Further, it did not make sense why this would be a proactive measure if the outcome of the ratification would not be known until the district has approved. The Applicant’s version in this regard is not plausible.

114. In cross-examination, the Principal submitted that the Applicant denied printing the reports for grades one (1) to three (3). When he caught Imouokhome, she told him that she was not the only person who got the reports from Moseki. The only educators who were not provided with the reports by Moseki were the Applicant and Mohlomi.

115. The Principal’s version in this regard was corroborated by Imouokhome who was not cross-examined by the Applicant and the Applicant’s witness Moseki. Both Moseki and Immakoume were consistent in that Moseki was instructed by the Applicant that she should tell Imouokhome not to tell other educators. I do not find a reason as to why the Applicant would do so unless there was an ulterior motive for her instruction to Moseki. If the purpose was to see whether class average could be added to the report, then why the Applicant would hide this when she instructed Moseki? I do not believe her version that about the number of educators who received the reports. I also do not agree with the version of Moseki in this regard. Moseki appeared to be nervous during her testimony.

116. It was a fact that the Applicant printed the reports as per her version in the letter sent to the Principal on 18 March 2020. It should be noted that this letter was authored after the Principal became aware that the reports were printed. It was also a fact that the reports were printed two (2) days before the verification date by the district office.

117. According to the Applicant, she requested Mike to test if they were able to include class average on the reports. The Applicant did not call Mike to corroborate her version in this regard. The Applicant stated that she requested Moseki to deliver them to Imouokhome and this version was contradicted by both Moseki and Imouokhome. I cannot comprehend the Applicant’s reason that she wanted to test the class average because she did not motivate how it would benefit the school or educators. If anyone would have done it would have been Mohlomi as the HOD of the foundation phase.

118. I find that the Applicant did not comply with the procedure when printing the reports. I cannot agree with the Applicant’s reasons why she printed the report. I don’t see why the testing of the class average would have assisted the school. Mohlomi as the HOD of the foundation was not aware that Imouokhome possessed the reports.

119. The Applicant argued that the Principal’s version was hearsay when he testified that the Applicant printed all the reports of the foundation phase because he did not question other educators. I disagree with the Applicant’s argument because, on the balance of probability, the Applicant became dishonest in her letter to the Principal when she alleged to have printed Imouokhome’s report however Majebe’s report was attached to her letter. This leaves a question as to how many other reports were printed by the Applicant. The Principal was reasonable to conclude that the reports from grades 1 to 3 were printed and I cannot disagree with him.

120. Considering the above, I find that the Applicant’s dismissal was substantively fair.

121. Concerning allegation 2, as stated already, the Applicant did not call Mike to corroborate her version. The Principal testified about the Applicant’s letter in that only Imouokhome’s reports were printed. It was a fact that the Applicant was pressuring the Principal to print the reports. I do not understand the reasons for the pressure because issues of the school performance rest on the shoulders of the Principal. If the school fails to produce the reports, the principal would take accountability not the Applicant. The Principal was consistent in his version both in chief and cross-examination that Majebe had the report.

122. The Applicant corroborated the Principal’s version when she was attempting to justify why she printed Majebe’s report as opposed to what she stated in the letter to the Principal. What she stated in the letter that they tried with Imouokhome was a false statement because Majebe’s report was found by the Principal. In my view, the Applicant’s justification is an indication of continued dishonesty. I, therefore find the Applicant’s dismissal fair in this regard.

123. Concerning allegation 3, The Principal and the IDSO were consistent in their testimony on the reasons and the visits by the IDSO. The IDSO testified that on his first visit, the Applicant refused to give the schedules to The Principal hence his intervention. This was supported by the IDSO’s report he authored and testified on.

124. The IDSO testified that after engaging with the Applicant, the Applicant gave him the schedules and this version was not disputed. The IDSO further submitted that the Applicant had undermined the instruction of the Principal which was a cause of a strained relationship. This version was not disputed.

125. The Applicant and Mohlomi’s versions were consistent when coming to how the mark sheets and learners scripts were found in the box except Mohlomi's testimony was based on what she was told by the Applicant. The Applicant blamed the Bidvest team for disorganising the class.

126. If the Applicant had the bona fide intention of providing these documents to the Principal, she would have done so. The Applicant previously instructed the general workers to remove the box from her class and they did so. In this case why the Applicant did not request assistance instead of stating that the scripts were missing when they were at her class?

127. Considering that the Applicant did not at first hand provide the Principal with the schedules and provided them to the IDSO suggest a power play and undermining of the authority of the Principal as his supervisor. This could well be the same as the other documents which were requested. I don’t see the reasons why the IDSO would come for a second visit if the Applicant was cooperating with the instruction from The Principal.

128. It appears that the Applicant, knowing the importance of the documents that were needed to conduct verification may have deliberately denied to hand them. Again, according to the Principal, these documents should not have been in the Applicant’s class but with the Mohlomi.

129. The undermining of the authority may have stemmed from the fact that there was an issue of who was responsible for quality assurance and printing of reports. The Applicant complained about the conduct of Ramokgobatha in respect of authority. I have already indicated that the Applicant failed to put her version to the Respondent’s witnesses and called Mohlomi to support her version. I can agree with Mohlomi that the Applicant was not responsible for moderation. If the quality assurance was conducted by Mohlomi and the Applicant, then why Mohlomi did not have copies of the Applicant’s class documents and had to find them from the Administrator? It was not difficult to see that Mohlomi’s evidence was biased in favour of the Applicant. I, therefore, find that the Applicant’s dismissal was fair in this regard.

130. Concerning allegation 4, the in-loco inspection was conducted and it was evident that there were a lot of LTSM that were stored in the computer lab however there was an official store room where the LTSM was kept.

131. The Principal testified on how he discovered that there was a lot of LTSM and other material in the computer lab. It was a fact that only the Applicant had the key to the computer lab despite her version of how she ended up with the key. The version of Sikhosana which was not challenged cannot be ignored to prove that the Applicant had a key. Sikhosana’s evidence about room twelve (12) was damning in that it showed some elements of dishonesty by the Applicant and further showed that the Applicant on the balance of probability stored those LTSM in the computer lab.

132. The Applicant attempted to justify how the LTSM ended up in the computer lab and the quantities thereof, however, Sikhosana was more credible than the Applicant and also a relevant witness because he was the one who could open the door.

133. Ntsala was the relevant witness in this regard because she was the LTSM coordinator and her testimony about the procurement process, and how the LTSM was distributed to the educators. This testimony was not disputed by the Applicant. The Applicant provided a contrary version that was not put to Ntsala to justify why there was LTSM and other materials in the computer lab.

134. I would not be clear why the Applicant stored the material in the computer lab but the number of materials found in the computer lab during in loco inspection had prejudiced the education system and the school. The Applicant’s conduct as testified by Sikhosana when he returned the key and when he offered assistance to the Applicant to remove the materials in room twelve (12) which was not challenged points to the fact that the Applicant was avoiding being held responsible.

135. I cannot see the Applicant’s logic to burn the box whereas there were materials that had not been used. It appears that the Applicant was concealing evidence as observed by the Principal. I am not pursuaded by the Applicant’s version and therefore I find Applicant’s dismissal was substantively fair.

136. Concerning allegation 5, I am not persuaded by the Applicant’s version. Again, Sikhosana was a key witness as he was the one who was instructed to burn the box. The in-loco inspection also played a key role for the Respondent to prove its case. It was observed in the box there were items which were new and parties agreed that there were items that were still new such as a box of crayons.

137. I do not agree with the Applicant’s reasons for burning the box and I am stating this because the Applicant testified that the items may have been contaminated however she kept some of the boxes such as the learner’s scripts.

138. I also disagree with the Applicant’s version of disputing the contents of the boxes and how the big box ended up being separated into three (3) boxes. Again, the Applicant called Mohlomi to corroborate her version however Mohlomi did not see the contents of the box.

139. The Principal submitted that it was a prerogative of the SGB to dispose of the material and therefore why the Applicant did not request permission from the Principal to burn boxes unless there was an ulterior motive to do so. According to Sikhosana, the boxes he stored in room 12 on the instruction of the Applicant suggest the Applicant’s intent to conceal evidence similar to the box related to what was found in the computer lab as per the testimony of The Principal.

140. The Applicant’s conduct towards Sikhosana when he refused to provide a key to room twelve (12) and also when she refused to take the key back leaves a lot to be desired. I am satisfied that the Respondent has proved that the Applicant’s dismissal was substantively fair in this regard.

141. Concerning allegation 6, I have already discussed the evidence above. Moseki and Imouokhome corroborated each other in this regard. If it was not for The Principal to press Imouokhome he would have not known about this. Even Mohlomi who was the HOD was not aware that the Imouokhome had the reports despite being the HOD of the foundation phase. As stated above, I am not persuaded by the Applicant’s reasons for instructing Moseki. I therefore find that the dismissal was substantively fair.

142. In conclusion, the Applicant failed to challenge the version of the Respondent’s witnesses who were credible and consistent, especially during their evidence in chief. It would be difficult for me to rely only on the Applicant’s version if the evidence of the Respondent's witnesses were left unchallenged. The Applicant’s case was built on uncontested evidence of the Respondent’s witness. The documentary evidence and the Applicant’s version showed a lot of contradiction of facts. I am satisfied that the Respondent was able to prove on the balance of probability that the dismissal was fair.

AWARD

143. I, therefore, issue the following award;

143.1. The Applicant’s dismissal by the Respondent is substantively fair.
143.2. The Applicant's application of an unfair dismissal against the Respondent is dismissed.
143.3. The ELRC is directed to close the file.


Chance Khazamula
ELRC Panelist
Date: 06 May 2024