ELRC287-23/24EC

Case number: ELRC287-23/24EC

In the matter between

Msobomvu Marala Applicant

And

Education Department of Eastern Cape Respondent

Appearances: For the applicant: Mr. Ben Washington of Maphosa & Associates
For the Respondent: Labour Relations Officers:
Mr. Ndzongo on 19 September & 23 November 2023)
Mr. Mlahleni on 18 April and 26 June.
Arbitrator: Thobela Ncetezo
Heard: 19 September, 23 November 2023, 13 March, 18 April, 26 June, and 26 July 24
Delivered: 14 August 2024
SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(b) – Unfair labour practice related to unfair suspension or disciplinary action.

ARBITRATION AWARD


Details of hearing and representation
1. Both parties submitted bundles of documents. The proceedings which were digitally recorded were conducted in English. All witnesses testified under oath.

2. The parties requested to submit closing arguments in writing for consideration, which I received on 2 August 2024.

Issue to be decided

3. I am required to decide whether the conduct of the respondent is an unfair labour practice as contemplated in terms of Section 186(2)(b) of the Labour Relations Act 66 of 1995, as amended.

Background to the dispute

4. The applicant, Msobomvu Marala submitted that he is employed by the respondent at Ntsonkotha Senior Secondary School as a Deputy Principal. He was employed by the respondent on 28 February 1995 but has been at Ntsonkotha since 2020.

5. He was issued with a final written warning and a fine of R8000.00 after being found guilty of two charges of misconduct in terms of sections 18(1)(d) and 18(1)(d) of the Employment of Educators Act which were phrased as follows:

• On 17 September 2021 you negligently failed to safeguard a Physical Science examination paper, which was reported and handed over to you as chief invigilator by Ms. Mabusela. Your negligence resulted in the paper ending up in the wrong hands of Mr. Nkatha who then took a photo of the paper and distributed it to social media causing the department of education to incur costs of reprinting the science paper.
• In that on the 17th of September 2021 you compromised the integrity of the department by negligently failing to safeguard the physical science paper which ended up being circulated in the social media by Mr. Nkatha.

6. Students were writing Physical Science on 17 September, but an English paper was attached to one of the Physical Science papers. English was supposed to be written on 22 September, which was then leaked. The applicant who was a chief invigilator for those examinations was held responsible. He was charged and the hearing took place in 2022 and finding of hearing is dated 1 June 2023. He was found guilty and issued with a final written warning and a fine of R8000.00.

7. The applicant submitted that the respondent imposed upon him a disciplinary action for allegations that were not proved. He also submitted that the sanction was too harsh and the person who leaked the paper was given a lesser sentence and that Schedule 2 allows an option of one sanction and not two.

Survey of evidence and arguments
Applicant’s case

8. The Applicant testified that in the morning of 17 September 2021 learners at his school were writing a Physical Science paper was for Grade 12. Before reporting for work he first went to fetch the examination paper from Nzimankulu High School as he was a Chief Invigilator and managing examinations. When he arrived at school, he put them in the strongroom as required and fetched it at a time nearer to the commencement of the examination, which was 09h00. He then distributed the examination paper to all the six examination rooms. Each class had its own invigilator. After distributing the paper, he went back to his office.

9. A learner then came to his office and told him that Mrs. Mabusela was asking him to come to the examination room in which she was invigilating. As he approached the examination room, he saw her standing in the doorway with Mr. Nkatha, an educator at the school. Mr. Nkatha was not supposed to be at the examination room because he was not an invigilator, but he left when he saw the applicant coming.

10. Mrs. Mabusela told him that a learner found in her Physical Science examination paper, an English examination paper, which was to be written on 22 September. He took that paper and asked Mr. Mabusela to give the learner another examination paper. He went back to his office and called Miss. Ngethu, the Education Development Officer (EDO) and informed her about the incident. The latter instructed him to check with the other examination rooms as well and also informed him that Mesdames Rani and Siyo would be coming to the school.

11. He called the School Management Team (SMT) and told them about the incident and that officials from the Department were on their way to the school.

12. On their arrival the officials informed that the English paper was already on social media. One of the educators took a picture of the paper and posted it on SADTU WhatsApp group. The examination was still in progress.

13. On their arrival they called Mrs. Mabusela and replaced her with another invigilator because she was asked to explain to the officials and SMT what had transpired. The former explained that a learner who saw something amiss with her examination. She noticed that it was an English paper which was to be written on 22 September.

14. When asked who took the picture of the paper, Mrs. Mabusela mentioned that she left Mr. Nkatha in the examination room with the paper to fetch a sanitiser so it could have been him who took a photo of the paper. The applicant further testified that Mr. Nkatha who is a SADTU secretary was also called in the meeting, and he admitted to taking the photo and said that he wanted to expose the carelessness of the department.

15. The applicant was then asked by Miss. Ngethu to write a statement about the incident of 17 September, which he did on 23 September.

16. He further testified that the Physical Science paper did not leak, nor reprinted or posted on the SADTU WhatsApp group. He denied that he failed to safeguard the paper as no one could have foreseen that the English paper was included in the paper that was being written on the said day. The mistake was made where the examination papers were compiled as the school received the paper on the day that the subject was written. The learners continued to write the Physical Science paper on 17 September.

17. He further testified that he could not have safeguarded the paper because Miss. Mabusela called Mr. Nkandla to the examination venue first.

18. The incident was also investigated by the provincial office officials. One of them, Mr Sam, showed him a picture of the paper which was taken by Mr. Nkatha on an oak table which is different from his dark brown desk. He further testified that Mr. Sam told him that Mr. Nkatha said that the applicant gave him the English paper, which he took a picture of at his office, which applicant denied and stated that he just wanted to blacklist him.

19. He stated that it is unfair that Miss. Mabusela was acquitted and Mr. Nkatha whom he had no way of stopping from taking a picture of the examination paper was only fined R5000.00. He further testified that there was no damage or loss suffered by the respondent in that the Physical Science examination paper was not reprinted.

20. He further testified that he did not want to plead guilty but was convinced by his union representative that the case would go away faster if he pleaded guilty. He also told him that he was retiring and would like to wrap up all the cases that he was handling. He told him that he spoke to the chairman of the disciplinary heard and the latter said the applicant was going to get a lighter sentence. His representative knew that he was innocent, but he told him it was going to take a long time and ruin his reputation.

21. Under cross-examination the applicant testified that Mr. Nkatha who admitted to having taken the picture of the examination paper, told him that he was fined R5000.00.

22. He further testified that after becoming aware that an English examination paper was in a Physical Science paper, he took it and kept it safe in his possession until the officials arrived at the school. He stated that he has not been prejudiced yet as the amount has not yet been deducted from his salary, but the charges have caused him to suffer prejudice.

23. He further testified that he made a mistake in pleading guilty to charges one and two. He admitted that the leakage of the examination paper was very serious as learners could have gotten hold of it. He stated that the person involved in leaking the paper should have been charged and not him.

24. His responsibility as a chief invigilator was to fetch the examination paper from the examination centre in the morning to the examination room. The learners must also be shown that the examination paper is sealed before it is opened and distributed to them. He also had a responsibility to manage and administer the smooth running of the paper from beginning to end as well as account for the events that led to the leakage.

25. The paper that was to be written on the day in question was Physical Science and it was written without any problems. The English paper was to be written the following week. He was called by an invigilator to the examination room, who showed him that there was an English examination paper inside the Physical Science examination paper. He took the paper and kept it in his office. He stated that Mr. Nkatha took the picture of the paper before the applicant was called to the examination room.

26. He also testified that he called a DoE official immediately and thereafter took the paper to his office. Initially Mr. Nkatha said that he found the paper in the applicant’s office but later admitted that he did not find it in his office. The applicant admitted that the offence is very serious and can lead to a dismissal. He also admitted that it was his duty to safeguard the examination paper until it leaves the examination venue. He stated that an accounting officer cannot be held liable for any foul that took place but give an account of the activities that took place on that day.

27. He further testified that he did not lead any evidence in the disciplinary hearing, but he was sanctioned and that was prejudicial to him. He admitted that he was given a chance to present his case, but he was coerced by his shopsteward, Mr. Nevi to plead guilty and that if he dragged the case, it would have an impact on his image and opportunity of getting a principalship post that was available at his school.

Respondent’s case

28. The first witness, Buyiswa Siyo, testified that she is acting as Chief Education Specialist: Examinations. On 17 September 2021 she received a call from the applicant who informed her about an irregularity at Ntsonkotha Senior Secondary School. He told her that they found pages of an English examination paper inside the Physical Science examination paper which was being written on that day. She told him to keep it safe. The English paper had not yet been written.

29. She went to the school with Head of Examinations, Mrs Rani. While they were on the way to Ntsonkotha they received a call from the District Director that the English paper was already on social media. They later found out that it was posted by another educator, Mr. Nkala who told them that he found it at the applicant’s office.

30. The witness further testified that it was a gross irregular that the paper was in the applicant's office instead of the strongroom where it was supposed to be kept and this is known by invigilators as they are trained. The witness and the Head of Examinations also found the paper at the applicant’s office and saw this as compromising the integrity of the examinations as the paper ended up on social media.

31. She further testified that the applicant who was trained as a chief invigilator was given a responsibility to take care of the examination related matters, which he failed to do. Even though the applicant did not leak the paper, the steps that he took led to its leakage. The applicant was supposed to keep the paper in the strongroom.

32. Under cross-examination the witness testified that she was not at Ntsonkotha when Mr. Nkatha leaked the paper but knows that it was after the learners were given the examination paper. Mr. Nkatha told her that he took the picture of the examination paper. She further testified that the applicant knows where the examinations papers are kept for safety. When she instructed him to keep it safe, she did not tell him to keep it in the strongroom and did not dispute that he kept it under locked key. However, she stated that even if the office door was locked, someone else could have opened his office but the key to the strongroom was kept by the applicant who had a sole responsibility to keep it safe. She conceded that the applicant cannot be blamed for the actions of his subordinates.

33. She also did not dispute that a picture of the paper could have been taken before the applicant was called into the examination room by the invigilator, Miss. Mabusela. She stated that it also could be that Miss. Mabusela left Mr. Nkatha alone with the paper.

34. She never checked the desk on which the examination paper was on the photo, whether the desk was oak or not. She also did not check where the picture was taken. When they arrived at Ntsonkotha the applicant took the paper from the desk drawer in his office and showed it her.

35. The second witness, Mr. Mpakamisi Hlekani, testified that he is employed as Chief Education Specialist: Labour Relations at Nelson Mandela Bay and was the chairperson for the applicant’s disciplinary hearing.

36. He testified that on the day of the disciplinary hearing the applicant’s representative, Mr. Nevi, and employer representative, Mr. Ndzongo, requested thirty minutes to deal with some issues on their own. They came back after an hour and said that the applicant will plead guilty of the two charges and not guilty of charge three, which was about bringing the name of the respondent into disrepute. He then advised them to submit mitigating and aggravating factors on the charges that the applicant pleaded guilty of. No evidence was led.

37. The applicant requested postponement on the grounds that charge three was not clear. Later on, the witness received a withdrawal of charge three from the respondent. Thereafter the parties submitted mitigating and aggravating factors. He did not get the detail on the examination paper that had leaked.

38. The sanction imposed upon the applicant was a final written warning and R8000.00 penalty, which is permissible in terms of section 18(3)(d) of the Employment of Educators Act.

39. He further testified that the process was fair as it was also confirmed by the applicant’s representative that he was properly served with a notice to attend a disciplinary hearing, charges were read to him.

40. He found that the negligence of the applicant led to the respondent having to re-set the leaked paper for the entire province. In arriving at his decision, he considered the gravity of the offence, and that the applicant pleaded guilty to charge one and two; and there was no other evidence to suggest otherwise.

41. Under cross-examination the witness testified that Mr. Nkatha also pleaded guilty to charges against him. There was no evidence led thereafter and he was fined R5000.00. He admitted that he was not aware of the facts as both employees pleaded guilty and he did not know what the discussion was about between the applicant’s and respondent’s representatives.

42. If the applicant and Mr. Nkatha had pleaded not guilty, he could have listened to the merits and maybe the sanction would have been different.

43. In arriving at his decision, he considered the position of authority that the applicant holds as a deputy principal and Mr. Nkatha is a Post Level 1 educator.

44. Closing arguments by the Applicant

45. The applicant argued that he contended that it was the English Paper 2 pictures which had been taken and published and not the Physical Science Paper that he had been accused of failing to safeguard. He could not have safeguarded the English Paper 2 from being leaked when its pictures had been taken by Nkatha before the applicant had been told about it. The Applicant could therefore not have safeguarded what he could not have anticipated.

46. It was further argued that there could not have been any damage caused to the Physical Science Paper because the students continued with the exam without any hindrance. It was neither reprinted nor rewritten.

47. He further argued that he pleaded guilty at the disciplinary hearing was because he had been coerced by his SADTU trade union representative, Mr. Nevi; and this was proved by text messages between Mr. Nevi and the applicant in which the former conceded knowing that the applicant was innocent of the charges against him.

Closing arguments by the Respondent

48. The respondent argued that the applicant was brought before disciplinary hearing and all the procedural issues conducted, the applicant pleaded guilty to the charges. Testified that they found the physical science paper which was laden with English paper that was to be written later in Mr Marala’s office and not taken from the strong room as required.

49. It was further argued that the applicant is highly educated and occupies the highest position of a deputy principal at the school. It was his choice to join a trade union movement and by so doing gave such a union a right to represent him in matters of interest at work. His testimony that he was coerced by his own representative does not hold water given the fact that he would have had the right to refuse or change the representative if he was not pleased with the representative. Instead, Mr Marala agreed with the representative and pleaded guilty to the charges. He also confirmed to the presiding officer that he understood what he was pleading guilty about. The presiding officer was never exposed to any incidence of coercion, and he heard an employee who willingly pleaded guilty with the help of a recognised trade union representative.
50. It was further argued that the sanction to the applicant could have been far worse given the severity of misconduct, but the presiding officer chose to give linear sanction less dismissal.

Analysis of evidence and arguments

51. Section 138(1) of the Act provides that the commissioner may conduct the arbitration in a manner that the commissioner considers appropriate to determine the dispute fairly and quickly but must deal with the substantial merits of the dispute with the minimum of legal formalities. Section 138(7)(a) further provides that the commissioner must issue an arbitration award with brief reasons, signed by that commissioner.

52. The dispute before me was referred in terms of Section 186(2)(b) of the Act. In disputes of unfair labour practice, the principle of “he who alleges must prove” is applicable. The burden of proof is therefore on the applicant to prove that the conduct of the Respondent is an unfair labour practice in terms of the above section, which provides that:
“Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving…unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee.”

53. The applicant is challenging a disciplinary action of a final written warning and a penalty fine of R8000.00 after he was found guilty of contravening sections 18(1)(d) and 18(1)(f) of the Employment of Educators Act 76 of 1998. This emanated from an incident that occurred on 17 September 2021 during examinations at Ntsonkotha Senior Secondary School when an English examination paper was found by a learner in her Physical Science paper which was being written on that particular day. The English paper which was to be written on 22 September 2021 was then leaked and posted on social media.

54. I accept the testimony of the respondent that the applicant as a chief invigilator was responsible for the safekeeping of the examination papers during the examination period at his school. I also accept that he was aware of the rule to keep the examination papers in the strongroom and not his office as anyone could enter his office but was the only person who was in possession of the key to the strongroom.

55. The applicant testified that the photo of the leaked paper was not taken in his office but in the classroom. He stated that in the photo the paper was on an oak desk and his office desk is dark brown. It should be noted, however, that the photo in question was not submitted by either party as part evidence, and as such he could not prove that the photo was not taken in his office. I am therefore of the view that the testimony of the respondent’s witness that the photo was taken at the applicant’s office, was based on hearsay in that the person whom she said gave her that information was not called as a witness. Ironically this is the same witness that the applicant submitted they subpoenaed but their subpoena was not updated as a result he was not available to testify. In De Beer v Trudon (Pty) Ltd (1994) 15 ILJ 1057 (LAC) the Court with approval referred to the matter of FAWU and others v Amalgamated Beverage Industries Ltd (1994) 15 ILJ 1057 (LAC) when it held that an evidential foundation had to be laid and that a party could not merely rely on arguments only, as arguments without any evidential basis would be no more than speculation.

56. It is evident from the testimony of both parties that it was not the Physical Science paper that was leaked, in that testimony of both parties was that writing of examination by learners continued while the applicant, officials of the department and SMT were having a meeting with the invigilator who found an English examination paper. It could therefore not have been the physical science paper that was reset and reprinted.

57. The chief invigilator during that examination period was the applicant, who was then charged of failing to safeguard the Physical Science paper which, according to the respondent, ended up being circulated on social media. Both charges that the applicant was found guilty of categorically refer to the Physical Science examination paper (Page 8 of the Applicant’s Bundle). However, the testimony of the applicant, which was confirmed by that of the respondent’s first witness was that the examination paper that had leaked was for English. He was not charged for an English paper that had leaked but of a Physical Science paper that never leaked. In my view the applicant was punished for an offence that he did not commit.

58. The chairman of the disciplinary enquiry in his testimony stated that his finding of guilt was based on the fact that the applicant pleaded guilty to the offence and that he was not aware of the facts as there was no evidence led the disciplinary hearing. It is therefore evident that he was not aware that the paper which had leaked was an English paper and not the Physical Science paper that the applicant was alleged to have failed to safeguard. There was no dispute that the Physical Science paper was written as scheduled. It is therefore my considered view that had the chairman of the disciplinary hearing made an inquiry into the merits of the case and enquire if they were related to the charges before him, he would have picked up that the allegations on the charge sheet which implied that the Physical Science paper had leaked, were not correct; and his finding might have been different as he also admitted in his testimony.

59. In Country Fair Foods (Pty) Ltd v CCMA & Others (1999) 11 BLLR 1117 (LAC) the Court held that interference with a sanction is justified if the employer’s decision is unreasonable and unfair. I am therefore of the view that the applicant proved that the disciplinary action imposed upon him amounts to an unfair labour practice.

60. The applicant made a request for cost based on postponements at the instance of the respondent. I do not believe that the request for postponement by the respondent was frivolous or vexation to attract costs as in both instances evidence was produced that the representative of the respondent was bereaved and he submitted proof to that effect. On the other instance, the witness of the respondent was said to have been involved in an accident and submitted a picture of a car on a breakdown truck.

61. Based on the above reasons I find that the applicant is not guilty of the offences that he was charged for and therefore the conduct of the respondent amounts to unfair labour practice.

62. I accordingly make the following award;

Award

63. I find that the conduct of the respondent, Education Department of Eastern Cape, amounts to an unfair labour practice relating to disciplinary action short of dismissal when the applicant, Msobomvu Marala was issued a final written warning and a fine of R8000.00 in terms of section 186(2)(b) of the Labour Relations Act 66 of 1995.

64. The applicant is not guilty of the misconduct for which he was sanction to a final written warning and a fine of R8000.00 that was imposed on him on 1 June 2023. The conviction and sanction imposed is therefore set-aside. Should the respondent have already implemented the fine of R8000.00 by making deduction(s) from the applicant’s salary this must be reversed and monies deducted must be reimbursed to the applicant within 30 days from date of this award.

65. I make no order for costs.


Signature:


Commissioner: Thobela Ncetezo
Sector: Education