PSES48-15/16FS
PSES48-15/16FS
Award Date:
5 April 2016
Case Number: PSES48-15/16FS
Province: Free State
Applicant: T J MAKHETHI
Respondent: Department of Education Free State
Issue: Unfair Dismissal - Misconduct
Venue: Dabi Education District, 23 Totius Street, Sasolburg
Award Date: 5 April 2016
Arbitrator: M NAIDOO
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN THE FREE STATE
Case No PSES48-15/16FS
In the matter between
T J MAKHETHI Applicant
And
DEPARTMENT OF EDUCATION – FREE STATE Respondent
ARBITRATOR: M NAIDOO
HEARD: 15 FEBRUARY 2016 AND 10 MARCH 2016
DELIVERED: 17 MARCH 2016
AWARD
Details of hearing and representation
[1] The arbitration proceedings took place on 15 February 2016 and 10 March 2016 at the offices of the respondent, Fezile Dabi Education District, 23 Totius Street, Sasolburg. The proceedings were mechanically recorded. The applicant, Mr T J Makhethi, was present and represented by Mr J Masewawatla, an attorney of the law firm Masewawatla Attorneys. The respondent, the Free State Department of Education, was present and represented by Mr P M Tladi, its acting deputy director: dispute resolution. The proceedings were conducted in English. Mr T Maluleke and Mr M Seale assisted with interpretation services.
Issues to be decided
[2] The issues to be decided in this matter are: whether the dismissal of the applicant, as contemplated in section 186(1)(a) of the Labour Relations Act 66 of 1995 (“the LRA”), was fair as contemplated in section 188(1) of the LRA; and what appropriate relief to award in terms of section 193(1) of the LRA in the event of a finding in favour of the applicant that he was unfairly dismissed.
Background to the issues in dispute
[3] The applicant was employed by the respondent as a principal at the EdenvilleIntermediateSchool (“the school”). He was employed as an educator by the respondent in February 1993. He earned a monthly income of R32 399. 00. Mr Masewawatla submitted, in the applicant’s opening statement, that the applicant was dismissed on 22 January 2015 for misconduct. The applicant submitted, in his ELRC Form E1, that he was dismissed on 31 March 2015. He pointed out, in his ELRC Form E1, that his salary was stopped on 31 March 2015 and that he was not informed of the outcome of the disciplinary hearing that he was in fact dismissed. In his testimony, the applicant averred that his salary was stopped on 28 February 2015.
[4] The applicant referred an unfair dismissal dispute with the Education Labour Relations Council (“the ELRC”) on 23 April 2015. The ELRC Form E1 was served on the respondent by fax on 23 April 2015. The dispute was conciliated on 26 May 2015 and remained unresolved. Panelist J B Mthembu issued a certificate of non resolution on 26 May 2015 accordingly.
[5] On 23 October 2015 panelist T Phalane issued a ruling dismissing the respondent’s point in limine that the ELRC lacks jurisdiction to arbitrate the dispute and directed the ELRC to set the dispute down for arbitration. The ELRC sent a notice to the parties setting the dispute down to be arbitrated on 15 February 2016. The arbitration remained part-heard until the evidence stage was finalized on 10 March 2016. On 10 March 2016, at the request of the parties, I directed the parties to submit their respective written closing arguments by 16 March 2016. Only the applicant submitted written closing arguments as directed.
Summary of the evidence and arguments
[6] The parties made opening statements. The parties submitted two bundles of documents. Mr Thomas Raad Jordaan, Mr Matthews Selai Tele, Ms Emily Shabalala, Ms Annelis Fourie, Ms Thembekile Iris Mayaba and the applicant testified. The parties were directed to submit written closing arguments. When the parties made opening statements I engaged with them with a view to narrowing the issues in dispute.
Opening statements
[7] Mr Tladi explained, in the respondent’s opening statement, that the applicant was subjected to a disciplinary hearing where he was found guilty of the following misconduct and dismissed:
Charge 1
Contravention of section 18(1)(a) of the Employment of Educators Act of 1998 (“the EEA”) in that on 1 November 2013 and 11 November 2013 he walked out and failed to participate in the short listing and interview processes relating to the filling of the head of department (“HOD”) post at the school.
Charge 2
Contravention of section 18(1)(i) of the EEA in that he failed to “carry out a lawful order or routine instruction given to him” on 21 May 2014 and 28 May 2014 “without just or reasonable cause” to effect the appointment of Mr Tele as the HOD of the school.
Charge 3
Contravention of section 18(1)(a) of the EEA in that he failed to “allocate Mr Tele the duties as HOD in the school since 21 May 2014 the day you became aware of his appointment”.
Charge 4
Contravention of section 18(1)(dd) of the EEA in that he threatened to shoot Mt Tele during school hours on 13 October 2014.
Charge 5
Contravention of section 18(1)(ee) of the EEA in that he was dishonest by writing a letter to the respondent’s finance department dated 23 July 2014 in which he represented that he was not aware of Mr Tele’s appointment, resulting in the respondent freezing Mr Tele’s salary.
[8] I shall refer to the charges collectively as “the misconduct”.
[9] Mr Masewawatla explained in the applicant’s opening statement that the applicant’s dismissal was procedurally unfair because the respondent did not afford the applicant sufficient time to prepare for the disciplinary hearing.
[10] He explained further that the dismissal was substantively unfair because the respondent was inconsistent in the imposition of the sanction. Mr Masewawatla disputed that the applicant had committed the misconduct.
[11] On charge one Mr Masewawatla submitted that the applicant had attended the meeting for the short listing. Mr Jordaan, who was also at the meeting, “ejected” the ad-hoc committee that the SGB had appointed to manage the short listing and had replaced it with his (Mr Jordaan’s) “own ad-hoc committee”. Mr Masewawatla explained that the applicant had taken Mr Jordaan out of the meeting to have a private talk with him. The applicant had explained to Mr Jordaan that Mr Tele was unqualified and did not meet the requirements to be shortlisted for the post. The applicant thereafter returned to the meeting but the meeting had, by then, completed its work.
[12] On charge two Mr Masewawatla submitted that the interview meeting took place on 11 November 2014. The applicant was not present at the interviews. The recommendations of the interviewing committee were not brought to the applicant’s attention.
[13] On charge three Mr Masewawatla submitted that, when the applicant had visited Mr Chuta, the respondent’s district director and the applicant’s direct supervisor, in Pretoria on 22 May 201; Mr Chuta had instructed him (the applicant) to return the original letter of appointment to him (Mr Chuta)
[14] On charge four Mr Masewawatla pointed out that the applicant disputed that he threatened Mr Tele as alleged.
[15] On charge five Mr Masewawatla conceded that the applicant had written the letter of 23 July 2014; but averred that the applicant endeavored, by this communication, “to seek clarity” as the applicant was not aware of whether Mr Tele was in fact appointed as HOD or not. Mr Masewawatla denied that the applicant intended for Mr Tele’s salary to be frozen. Mr Masewawatla pointed out that the applicant was of the view that the HOD post, to which Mr Tele was apparently appointed, was in fact “frozen”. The applicant was conflicted about implementing the appointment in the light of the post having been “frozen”.
[16] Mr Tladi pointed out that the applicant was suspended pending the outcome of the disciplinary hearing when the respondent endeavored to serve the notice of the disciplinary hearing on him. The applicant “played hide and seek” in avoiding service of the notice on him. In frustration the respondent sent the notice to the applicant by registered mail. Mr Tladi explained that the mail was not returned to the post office; therefore the applicant would have probably received the notice. Mr Tladi averred that the applicant was nevertheless handed the charge sheet at the first sitting of the disciplinary hearing and the hearing was postponed to commence on another date.
Testimony of Mr Jordaan
[17] Mr Jordaan testified that he was in the employ of the respondent as its school Manager and Governance Developer (SMGD) in 2014. He was the applicant’s direct supervisor. He attended the short listing meeting on 1 November 2013. His role at the meeting was to provide advice to the short listing committee. He pointed out that the human resources committee, which was elected by the SGB, was supposed to be the members seized with the task of the short listing. This committee, which comprises of 11 members, is supposed to be elected every three years. The entire SGB, however, was in attendance at the meeting when Mr Jordaan arrived. He directed that only the elected HR committee members must remain for the short listing and that the other members must leave. The applicant is a member of the HR committee by virtue of his position as the principal of the school. The applicant was not the chairperson of the committee.
[18] Mr Jordaan explained that the applicant got very angry at the meeting. The applicant argued with Mr Jordaan. The applicant differed with Mr Jordaan’s understanding of what comprised a “major subject”, which was the subject of one of the criteria for the shorting .Mr Jordaan explained that the applicant stormed out of the meeting and returned to his (the applicant’s) office. Mr Jordaan followed the applicant and pleaded with him to return. The applicant agreed to return. Mr Jordaan returned to the meeting and waited for the applicant for about 20 to 30 minutes. When the applicant did not return Mr Jordaan advised the deputy principal, who was present at the meeting in her capacity as an observer union official, to substitute for the principal. Mr Jordaan pointed out that the applicant did not return to the meeting at all. One of the candidates who were shortlisted at the meeting was Mr Tele.
[19] Mr Jordaan explained that he was also present at the interviews on 11 November 2013. He averred that the applicant had told him that he (the applicant) was not invited to the interviews. Therefore he (the applicant) did not attend the interviews. Mr Jordaan pointed out that it was the applicant, as the school’s principal, who was responsible for arranging the interviews. Moreover, the applicant was part of the planning meeting which took place on 4 November 2013.
[20] Mr Jordaan explained that Mr Tele was recommended, to the Head of Departrment (“the HOD”) as the preferred candidate by the interviewing panel. The HOD, in turn, recommended Mr Tele as the preferred candidate to the Director of the Free State Department of Education (“the director”). The director appointed Mr Tele to the HOD post of the school. Mr Chuta, the director, signed the letter of appointment on 14 May 2014, which Mr Jordaan sent to the applicant. On 22 May 2014 Mr Tele signed his new contract of appointment as the HOD on post level 2 and salary level eight with the respondent at the respondent’s district office.
[21] Thereafter the applicant was supposed to complete and sign an “Assumption of Duty” (“AoD”) form, indicating the date when Mr Tele was to assume his duties in his new post. Mr Jordaan averred that the applicant, however, refused to complete the AoD form as he (the applicant) did not agree that Mr Tele was the appropriate person to have been appointed.
[22] Mr Tele reported to Mr Jordaan that he (Mr Tele) was afraid to return to work at the school because the applicant had threatened to shoot him. Mr Tele also reported to Mr Jordaan that the respondent had not paid his salary.
[23] In cross- examination Mr Masewawatla referred Mr Jordaan to a print out which he (Mr Masewawatla) averred was obtained from the respondent’s HR department. The print out sets out all the posts at the school and states that the post of HOD (post 62032 0002) was in fact frozen as at 13 May 2014 when it was printed. Mr Jordaan retorted that the post was not frozen as the director did make the appointment and the assumption of duty form was forwarded to the applicant to be completed to finalize the filling of the post. Moreover, the respondent’s HR department also concluded the contract of employment with Mr Tele. Mr Masewawatla submitted, in cross examining Mr Jordaan that the fact that the post was frozen meant that it therefore “cannot be advertised”.
Testimony of Mr Tele
[24] Mr Tele testified that his appointment letter was given to him by Ms Fourie, the deputy principal. He was later called by My Jordaan to sign his contract of employment. Mr Jordaan told Mr Tele that he (Mr Jordaan) was concerned why the AoD form was not signed as yet and instructed Mr Tele to present himself to the applicant the next day to sign the AoD form.
[25] Mr Tele pointed out that his appointment to the post, including his letter of appointment, contract of employment and AoD, was supposed to have been brought to his attention by the applicant. This did not happen. Rather this was brought to his attention by Ms Fourie and Mr Jordaan.
[26] Mr Tele averred that he was a PL1 educator until his appointment and assumption to his post of HOD on 22 May 2014. He pointed out, however, that when he did not receive his salary he made enquiries at the respondent’s district office. He was shown a letter which was sent to the respondent by the applicant dated 23 July 2014. He was told that his salary was stopped because of this letter. The letter stated:
“1. According to my documentation the PL2 (post no. 180036/202) at the above mentioned school is FROZEN.
2. To my dismay the post is now alive and is paid for without my (principal) knowledge.
3. I did not sign the assumption of duty form for the above mentioned post.
4. I am not going to be held accountable for the signature of the concerned teacher, which does not appear on the pay roll because according to my knowledge, I did not sign his assumption of duty form which I am not prepared to sign.
5. I need a thorough explanation regarding this post.”
[27] Mr Tele explained that he went to the applicant’s office on 13 October 2014 on his (the applicant’s) instruction. The applicant told Mr Tele at this meeting, while he was alone with him (the applicant), that he (Mr Tele) was not a HOD and that if he wanted to be a HOD he can be such a HOD somewhere else. The applicant explained to Mr Tele that if he (Mr Tele) persisted in being a HOD at his (the applicant’s) school, he (the applicant) will shoot and kill him (Mr Tele). Mr Tele explained that he was fearful because of this threat; as the applicant did not bring the fact of his (Mr Tele’s) appointment to him (Mr Tele), refused to sign the AoD form and refused to assign him (Mr Tele) work after his (Mr Tele’s) appointment as HOD. Moreover, explained Mr Tele, he had previously witnessed the applicant in a road rage incident when the applicant had pulled out his gun and threatened to shoot another person. The applicant concluded the meeting by telling Mr Tele that he (Mr Tele) must take the appointment letter back to Mr Jordaan “or else heads will roll”.
[28] In cross- examination Mr Masewawatla denied that Mr Tele ever travelled with the applicant and therefore he could not have witnessed the alleged road rage incident. Moreover, submitted Mr Masewawatla, if the applicant had indeed threatened Mr Tele, why then did he not report the incident to the police officials who were at the school at the time. Mr Masewawatla submitted that the police officers were called to the school by the applicant pursuant to a leaner being found in possession of drugs. Mr Tele retorted that he did not notice the police at the school on that day. He was escorted out of the meeting by the applicant. He felt unsafe. He went to the police station on 13 October 2014. The police officer who attended on him told him to return the next day to open a charge. Mr Tele returned the next day and formally opened the charge. He referred, in this regard, to his police statement which he made at the police station on 14 October 2014.
Testimony of Ms Shabalala
[29] Ms Shabalala testified that she is an administration clerk employed by the respondent. She had reported to the applicant. She now reports to Ms Fourie. She explained that she had telephoned Mr Tele, on the instructions of the applicant, and summoned him (Mr Tele) to a meeting with the applicant. She pointed out that she did not notice any police officers on the school premises when Mr Tele left the meeting on the day in question.
[30] Mr Masewawatla submitted, in cross- examination, that the applicant had called the police to come to the school and that he (the applicant) was with the police officers “throughout” his “interaction with Mr Tele” and that this was in front of Ms Shabalala’s office. Ms Shabalala responded that she “do not know anything about that”. In re-examination she explained that she did not see any police officers at the school during that entire day.
Testimony of Ms Fourie
[31] Ms Fourie testified that she was appointed as deputy principal at the school in 2013. She reported to the applicant. She explained that, when the applicant was absent from school on Thursday, 22 May 2014 and she was acting as the principal at the school, she received a telephone call from the department (the respondent). She was instructed to ensure that the AoD form is singed by Mr Tele and her. She got Mr Tele to sign it. She also signed it and thereafter submitted it to the department. When the applicant returned to work the next day he told Ms Fourie that she was wrong to have signed the AoD form and that she did not have his authority to have done so. He threatened her with disciplinary action. Ms Fourie pointed out that the applicant did not accept Mr Tele’s appointment as HOD and refused to assign him any work, including HOD duties.
[32] In cross- examination Ms Fourie was confronted with the print out which showed that the HOD post in question was frozenas at 13 May 2014. Ms Fourie retorted that she was had no knowledge of this document or of such information.
[33] Ms Fourie explained that on 13 January 2016 she was compelled to institute criminal action against the applicant as he had presented himself at the school and had refused to leave. She was, at the time, the school’s acting principal and the applicant was dismissed.
Testimony of Ms Mayaba
[34] Ms Mayaba testified that she is employed as a HR officer, administration clerk, and is stationed at the respondent’s district office. She explained that Mr Tele was appointed by the respondent as HOD at the school and was supposed to assume his duties as HOD on 22 May 2014. Mr Jordaan signed the AoD form as a witness. On 16 May 2014 she handed the original contract of employment, letter of appointment and AoD form to the applicant. The applicant was supposed to have signed the form as principal and returned it to the district office; but he did not do so. She explained that she discussed the issue with the applicant and pointed out to him that the director had approved the appointment.
[35] She pointed out that the applicant does not have the authority to “reject the director’s appointment”. He was therefore charged.
Testimony of the applicant
[36] The applicant testified that he “had a need” at the school for a HOD in the Life Orientation, Arts and Culture, Sotho and English subjects. He “prepared a plan” and sent it to district office. After the post was advertised he collected the names of the applicants for the post from the district office. He thereafter held a meeting with six of the 11 SGB members about the process to be followed and informed Mr Jordaan of the date when the short listing was scheduled.
[37] The applicant denied that he walked out of the short listing meeting. He averred that an argument ensued at the meeting because he “was not happy with the way things were going”. The applicant claimed that he asked Mr Jordaan, his senior, to speak to him outside. After he had spoken to Mr Jordaan, he (Mr Jordaan) returned to the meeting. The applicant, however, only returned later; by which time the meeting was concluded. He pointed out that he did a report dated 5 September 2013 to the director and “my senior” recording what had happened at the short listing meeting with “my recommendations. The applicant set out, in some detail, his grievance that he was dissatisfied with the manner in which the short listing proceedings took place. He requested that the district office intervene. The applicant pointed out that he received no response to his report and request.
[38] The applicant averred that he received the appointment letter from the district office that Mr Tele was appointed to the post. Mr Chuta called the applicant and informed him that Mr Tele did not meet the requirements of the post. The applicant explained that Mr Chuta instructed him to return the letter of appointment. The applicant complied. The applicant referred to a document to confirm that he did deliver the document on 21 May 2014. He pointed out that he did not refuse to give effect to Mr Tele’s appointment. He was merely complying with Mr Chuta’s instruction not to. He expected Mr Chuta to revert to him; but Mr Chuta did not. The applicant pointed out that he even wrote a letter to Mr Chuta “about the short listing”. The applicant insisted that Mr Chuta was under an obligation, under the circumstances, to “restart” the recruitment process.
[39] The applicant stated that he visited his doctor the next day. On his return the following day he discovered that Ms Fourie had signed the AoD form and had done so without informing him. He then obtained the print out from the respondent’s district office which showed that the post was in fact “frozen”. The applicant also explained that, on 3 June 2014, the district office visited the school and did a head count of the educators at the school. He confirmed the head count by signing the head count document. He pointed out two printouts which were obtained from the HR department on 13 May 2014. On one printout Mr Tele is recorded as occupying the HOD post while the other print out showed that the post was frozen. This “amazed” the applicant. He therefore wrote the letter of 23 July 2014 to the respondent. He averred that he was of the view that it was not possible to offer the post to anyone while it was frozen.
[40] The applicant asserted that he thereafter visited Mr Chuta and explained to him that “policy was overlooked to allow the post to be occupied by a person who did not qualify”. The applicant exclaimed that Mr Chuta “did not listen to me”. In cross- examination the applicant averred that, although the director had made the appointment, he (the applicant) had a duty to bring to the director’s attention that he may have been mistaken in making the appointment; as the post was in fact frozen and had been so frozen before the post was even advertised. The applicant averred that the respondent was bound by law to first unfreeze the post and only after three months had lapsed was it lawful to advertise it. This was not done. Hence, the instruction to implement the appointment was in fact unlawful. The applicant pointed out that the instruction was unlawful for the further reason that it forced him to accept Mr Tele as a HOD in the school despite Mr Tele not “meeting the requirements of the school”. The applicant exclaimed that he knows Mr Tele well. Mr Jordaan and two other officials had in fact made the appointment. Mr Tele was just not the right person for the job.
[41] The applicant conceded that he refused to assign any work to Mr Tele; but maintained that he did so because he had received the printout from the respondent’s HR department reflecting that the post was frozen and he was also awaiting a response from Mr Chuta.
[42] The applicant, not being satisfied with Mr Chuta’s appointment, sent two letters to the district office. This resulted in Mr Tele’s salary being stopped.
[43] The applicant disputed that he got notice of the disciplinary hearing before 11 December 2014, when the disciplinary tribunal first convened. He confirmed, however, that the disciplinary hearing was postponed to 19 December 2014. He pointed out that he still did not receive the notice by 19 December 2014 and was unaware of the allegations of misconduct against him when the disciplinary hearing proceeded on 19 December 2014. He did not defend himself as he was not prepared.
[44] The applicant averred that the respondent had stopped his salary on 28 February 2015 and that is how he became aware that he was in fact dismissed.
[45] The applicant conceded that he summoned Mr Tele to his office on 13 October 2014. He pointed out that he had also called the police to come to the school on that same day. Two police officers came to the school at 10:30 to investigate his complaint that one of his learners was found in possession of drugs. While the applicant was busy talking to the police officers, Mr Tele came to him. The applicant excused himself from the police officers to attend to Mr Tele. The applicant averred that he asked Mr Tele why he had not come to see him earlier. Mr Tele retorted that the applicant was “taking nonsense”. The applicant pointed out that he does not carry his firearm to school. He denied that he threatened Mr Tele and pointed out that Mr Tele passed the two police officers.
Analysis of evidence and arguments
[46] The Constitutional Court explained in CUSA v Tao Ying Metal Industries and Others(2008) 29 ILJ 2461 (CC) at [65]:
“... commissioners must … resolve the real dispute between the parties.”
[47] The essence of the allegations against the applicant were that he refused to implement the appointment of Mr Tele to the HOD post by signing the AoD form and assigning him HOD tasks. He also committed the misconduct of threatening Mr Tele when he allegedly told him he will shoot him if he persisted on being a HOD at the school. He was further accused of causing the respondent’s finance department to stop paying Mr Tele his salary. The applicant’s defences were, in essence, that the instruction to implement the appointment was unlawful as Mr Tele was not the right person for the job and the post was frozen. Hence, the director had mistakenly appointed Mr Tele to the post. He denied having threatened Mr Tele. He also denied causing the finance department to stop Mr Tele’s salary.
[48] The applicant version that he had in fact left the short listing meeting, and was away for a short period of time, only to return when it was concluded, was probably not true for various reasons. Even on the applicant’s version Mr Jordaan returned to the meeting after stepping out of the meeting with the applicant. Yet the applicant did not follow Mr Jordaan into the meeting. If indeed the purpose of stepping out of the meeting was to privately confide in Mr Jordaan, it begs the question: why did the applicant not return to the meeting with Mr Jordaan. Mr Jordaan’s version that the applicant stormed out of the meeting not to return is more probable. This is even corroborated by the applicant in his (the applicant’s) written report to the respondent’s district office and his testimony.
[49] At any rate the short listing proceeded in the absence of the applicant with Ms Fourie deputising for the applicant. I do not see why it was even necessary for the applicant to be in attendance at the meeting in the circumstances and why his absence was in fact misconduct. His presence was demanded purely because of his position as principal. Mr Jordaan himself testified that the deputy principal may lawfully assume the principal’s duties at the meeting in the absence of the applicant.
[50] The applicant’s absence at the short listing meeting is important, however, for other reasons. It demonstrated his defiance of being part of the process. He testified that he himself initiated the recruitment process by sending the “plan” to the district office, which resulted in the advertisement being issued. Yet he later vehemently refused to implement the decision of the director when the director had appointed Mr Tele to the post. His reasons were, in essence, that the director was mistaken to have made the appointment in the light of the printout that the post was frozen. If this was indeed the real reason, it begs the question: why then did the applicant send the plan to the district office. Why did he not bring this to the attention of the district office when the advertisement was published? The printout itself is problematic. There were in fact two print outs that contradicted each other: one reflecting that the post was frozen while the other reflecting that the post was not frozen.
[51] It is important that the applicant did not lead any evidence to prove that the post was in fact frozen and what, if any, the implications were. He relied on the printout and argued that an inference should be drawn that the post was indeed frozen and that the implication was that the post could not lawfully be filled. In the light of the fact that the applicant made the allegation, he was under a duty to prove it. He failed to do so.
[52] In Cooper and Another NNO v Merchant Trade Finance Ltd2000 (3) SA 1009 (SCA) Zulman JA observed that
“It is not incumbent upon the party who bears the onus of proving an absence of an intention to prefer to eliminate by evidence all possible reasons for the making of the disposition other than an intention to prefer. This is so because the Court, in drawing inferences from the proved facts, acts on a preponderance of probability. The inference of an intention to prefer is one which is, on a balance of probabilities, the most probable, although not necessarily the only inference to be drawn. … If the facts permit of more than one inference, the Court must select the most 'plausible' or probable inference. If this favours the litigant on whom the onus rests he is entitled to judgment. If, on the other hand, an inference in favour of both parties is equally possible, the litigant will not have discharged the onus of proof.”
[53] In the current matter the applicant testified that it was the director who instructed him to return the original letter of appointment. He complied with the instruction. This version begs the question: why did he then have to go so out of his way to convince the director to reverse his decision of having made the appointment? Even on the applicant’s own testimony, the director had completely ignored his various letters. This is not only a contradiction of the applicant’s version that it was the director that instructed him to return the letter of appointment; but it is also a clear indication that the director did not reverse the appointment. On the contrary, the appointment remained. This was despite the applicant’s complaint that the post was frozen. The most plausible inference I can draw from these facts is that the post was in fact not frozen.
[54] The applicant’s assertion that the instruction to implement the appointment was also unlawful because Mr Tele was not the right person for the job is a clear indication that he had absolutely no respect for the authority of the director and/or any regard of the process that preceded the appointment. He even absented himself from the interview meeting in protest. It is also a clear indication that the applicant wanted to appoint someone else, other than Mr Tele; and when it did not go his way, from the short listing process, he took up a stance that he would do everything under his power to frustrate Mr Tele actually taking up his post. In the process he became unmanageable, brazen in his stance and insubordinate.
[55] The applicant, as principal, was in a position of enormous responsibility and leadership in so far as the recruitment process was concerned. The process is engineered as a guard against the very conduct that the applicant had displayed, namely to attempt to autocratically impose one’s own sense of judgement against the collective judgement of the HR committee. Moreover, the authority of the director in making the appointment, as opposed to the applicant’s responsibility of implementing the director’s decision, is critical in the process. The applicant failed to display that the director’s decision in appointing Mr Tele was a mistake; or that his (the applicant’s) responsibility of implementing the decision by signing the AoD form and assigning work to Mr Tele was justified because the instruction was in fact unlawful.
[56] The applicant was not a credible witness. Mr Jordaan, on the other hand, was a credible witness. So was Mr Tele. Mr Tele testified that he was threatened by the applicant. The applicant denied this. The applicant averred that, if he had indeed threatened Mr Tele; then why did he not immediately tell the police officers who were at the school at the time. Mr Tele explained that he did not see the police there at the time but he did lodge a complaint with Mr Jordaan and the police station.
[57] The applicant’s version, on the other hand, was that the police officers were with him when Mr Tele came to his office. Yet Ms Shabalala testified that even she was not aware of the police being at the school when Mr Tele was with the applicant. It is highly probable that the police were indeed not at the school at the time and that Mr Tele did not in fact see the police on the school premises. Clearly Mr Tele’s version was not an afterthought. He had in fact immediately made a report to Mr Jordaan and the SAPS.
[58] The Respondent did not submit any evidence to prove that the applicant had in fact committed misconduct when the finance department stopped Mr Telel’s salary. From the evidence before me the probabilities are that the finance department was negligent in stopping Mr Tele’s salary on the basis of the applicant’s representations.
[59] In the light of the applicant’s misconduct in refusing to comply with the director’s instruction to allow Mr Tele to assume his duties at the school, the applicant’s continued persistence in this regard, his threats to Mr Tele and his complete lack of remorse; I find that the applicant’s dismissal was substantively fair as dismissal was an appropriate sanction in all the circumstances.
[60] The applicant testified that he attended the disciplinary hearing even though he did not get notice of the hearing. There was no testimony from the applicant, or from anyone else, as to how the applicant got word that the disciplinary proceedings were taking place when it first convened.
[61] Even if the applicant was unaware of what the allegations were when the disciplinary tribunal first convened; he had the opportunity of obtaining the notice, which incorporated the allegations, at the second sitting. He says he did not. Mr Jordaan’s testimony that the applicant was in fact handed a copy of the notice, incorporating the allegations, during the first sitting was not challenged by the applicant. In the light of all the evidence before me on this issue, I make the finding that the applicant was, in all probability, aware of the allegations against him long before the second sitting when the disciplinary hearing commenced. This was the only procedural challenge by the applicant. The dismissal was procedurally fair.
AWARD
[62] The dismissal of the applicant, Mr T J Makhethi, was fair as contemplated in section 188(1) of the Labour Relations Act 66 of 1995. The respondent has discharged the onus to show that dismissal was procedurally and substantively fair.
Commissioner M Naidoo
Province: Free State
Applicant: T J MAKHETHI
Respondent: Department of Education Free State
Issue: Unfair Dismissal - Misconduct
Venue: Dabi Education District, 23 Totius Street, Sasolburg
Award Date: 5 April 2016
Arbitrator: M NAIDOO
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN THE FREE STATE
Case No PSES48-15/16FS
In the matter between
T J MAKHETHI Applicant
And
DEPARTMENT OF EDUCATION – FREE STATE Respondent
ARBITRATOR: M NAIDOO
HEARD: 15 FEBRUARY 2016 AND 10 MARCH 2016
DELIVERED: 17 MARCH 2016
AWARD
Details of hearing and representation
[1] The arbitration proceedings took place on 15 February 2016 and 10 March 2016 at the offices of the respondent, Fezile Dabi Education District, 23 Totius Street, Sasolburg. The proceedings were mechanically recorded. The applicant, Mr T J Makhethi, was present and represented by Mr J Masewawatla, an attorney of the law firm Masewawatla Attorneys. The respondent, the Free State Department of Education, was present and represented by Mr P M Tladi, its acting deputy director: dispute resolution. The proceedings were conducted in English. Mr T Maluleke and Mr M Seale assisted with interpretation services.
Issues to be decided
[2] The issues to be decided in this matter are: whether the dismissal of the applicant, as contemplated in section 186(1)(a) of the Labour Relations Act 66 of 1995 (“the LRA”), was fair as contemplated in section 188(1) of the LRA; and what appropriate relief to award in terms of section 193(1) of the LRA in the event of a finding in favour of the applicant that he was unfairly dismissed.
Background to the issues in dispute
[3] The applicant was employed by the respondent as a principal at the EdenvilleIntermediateSchool (“the school”). He was employed as an educator by the respondent in February 1993. He earned a monthly income of R32 399. 00. Mr Masewawatla submitted, in the applicant’s opening statement, that the applicant was dismissed on 22 January 2015 for misconduct. The applicant submitted, in his ELRC Form E1, that he was dismissed on 31 March 2015. He pointed out, in his ELRC Form E1, that his salary was stopped on 31 March 2015 and that he was not informed of the outcome of the disciplinary hearing that he was in fact dismissed. In his testimony, the applicant averred that his salary was stopped on 28 February 2015.
[4] The applicant referred an unfair dismissal dispute with the Education Labour Relations Council (“the ELRC”) on 23 April 2015. The ELRC Form E1 was served on the respondent by fax on 23 April 2015. The dispute was conciliated on 26 May 2015 and remained unresolved. Panelist J B Mthembu issued a certificate of non resolution on 26 May 2015 accordingly.
[5] On 23 October 2015 panelist T Phalane issued a ruling dismissing the respondent’s point in limine that the ELRC lacks jurisdiction to arbitrate the dispute and directed the ELRC to set the dispute down for arbitration. The ELRC sent a notice to the parties setting the dispute down to be arbitrated on 15 February 2016. The arbitration remained part-heard until the evidence stage was finalized on 10 March 2016. On 10 March 2016, at the request of the parties, I directed the parties to submit their respective written closing arguments by 16 March 2016. Only the applicant submitted written closing arguments as directed.
Summary of the evidence and arguments
[6] The parties made opening statements. The parties submitted two bundles of documents. Mr Thomas Raad Jordaan, Mr Matthews Selai Tele, Ms Emily Shabalala, Ms Annelis Fourie, Ms Thembekile Iris Mayaba and the applicant testified. The parties were directed to submit written closing arguments. When the parties made opening statements I engaged with them with a view to narrowing the issues in dispute.
Opening statements
[7] Mr Tladi explained, in the respondent’s opening statement, that the applicant was subjected to a disciplinary hearing where he was found guilty of the following misconduct and dismissed:
Charge 1
Contravention of section 18(1)(a) of the Employment of Educators Act of 1998 (“the EEA”) in that on 1 November 2013 and 11 November 2013 he walked out and failed to participate in the short listing and interview processes relating to the filling of the head of department (“HOD”) post at the school.
Charge 2
Contravention of section 18(1)(i) of the EEA in that he failed to “carry out a lawful order or routine instruction given to him” on 21 May 2014 and 28 May 2014 “without just or reasonable cause” to effect the appointment of Mr Tele as the HOD of the school.
Charge 3
Contravention of section 18(1)(a) of the EEA in that he failed to “allocate Mr Tele the duties as HOD in the school since 21 May 2014 the day you became aware of his appointment”.
Charge 4
Contravention of section 18(1)(dd) of the EEA in that he threatened to shoot Mt Tele during school hours on 13 October 2014.
Charge 5
Contravention of section 18(1)(ee) of the EEA in that he was dishonest by writing a letter to the respondent’s finance department dated 23 July 2014 in which he represented that he was not aware of Mr Tele’s appointment, resulting in the respondent freezing Mr Tele’s salary.
[8] I shall refer to the charges collectively as “the misconduct”.
[9] Mr Masewawatla explained in the applicant’s opening statement that the applicant’s dismissal was procedurally unfair because the respondent did not afford the applicant sufficient time to prepare for the disciplinary hearing.
[10] He explained further that the dismissal was substantively unfair because the respondent was inconsistent in the imposition of the sanction. Mr Masewawatla disputed that the applicant had committed the misconduct.
[11] On charge one Mr Masewawatla submitted that the applicant had attended the meeting for the short listing. Mr Jordaan, who was also at the meeting, “ejected” the ad-hoc committee that the SGB had appointed to manage the short listing and had replaced it with his (Mr Jordaan’s) “own ad-hoc committee”. Mr Masewawatla explained that the applicant had taken Mr Jordaan out of the meeting to have a private talk with him. The applicant had explained to Mr Jordaan that Mr Tele was unqualified and did not meet the requirements to be shortlisted for the post. The applicant thereafter returned to the meeting but the meeting had, by then, completed its work.
[12] On charge two Mr Masewawatla submitted that the interview meeting took place on 11 November 2014. The applicant was not present at the interviews. The recommendations of the interviewing committee were not brought to the applicant’s attention.
[13] On charge three Mr Masewawatla submitted that, when the applicant had visited Mr Chuta, the respondent’s district director and the applicant’s direct supervisor, in Pretoria on 22 May 201; Mr Chuta had instructed him (the applicant) to return the original letter of appointment to him (Mr Chuta)
[14] On charge four Mr Masewawatla pointed out that the applicant disputed that he threatened Mr Tele as alleged.
[15] On charge five Mr Masewawatla conceded that the applicant had written the letter of 23 July 2014; but averred that the applicant endeavored, by this communication, “to seek clarity” as the applicant was not aware of whether Mr Tele was in fact appointed as HOD or not. Mr Masewawatla denied that the applicant intended for Mr Tele’s salary to be frozen. Mr Masewawatla pointed out that the applicant was of the view that the HOD post, to which Mr Tele was apparently appointed, was in fact “frozen”. The applicant was conflicted about implementing the appointment in the light of the post having been “frozen”.
[16] Mr Tladi pointed out that the applicant was suspended pending the outcome of the disciplinary hearing when the respondent endeavored to serve the notice of the disciplinary hearing on him. The applicant “played hide and seek” in avoiding service of the notice on him. In frustration the respondent sent the notice to the applicant by registered mail. Mr Tladi explained that the mail was not returned to the post office; therefore the applicant would have probably received the notice. Mr Tladi averred that the applicant was nevertheless handed the charge sheet at the first sitting of the disciplinary hearing and the hearing was postponed to commence on another date.
Testimony of Mr Jordaan
[17] Mr Jordaan testified that he was in the employ of the respondent as its school Manager and Governance Developer (SMGD) in 2014. He was the applicant’s direct supervisor. He attended the short listing meeting on 1 November 2013. His role at the meeting was to provide advice to the short listing committee. He pointed out that the human resources committee, which was elected by the SGB, was supposed to be the members seized with the task of the short listing. This committee, which comprises of 11 members, is supposed to be elected every three years. The entire SGB, however, was in attendance at the meeting when Mr Jordaan arrived. He directed that only the elected HR committee members must remain for the short listing and that the other members must leave. The applicant is a member of the HR committee by virtue of his position as the principal of the school. The applicant was not the chairperson of the committee.
[18] Mr Jordaan explained that the applicant got very angry at the meeting. The applicant argued with Mr Jordaan. The applicant differed with Mr Jordaan’s understanding of what comprised a “major subject”, which was the subject of one of the criteria for the shorting .Mr Jordaan explained that the applicant stormed out of the meeting and returned to his (the applicant’s) office. Mr Jordaan followed the applicant and pleaded with him to return. The applicant agreed to return. Mr Jordaan returned to the meeting and waited for the applicant for about 20 to 30 minutes. When the applicant did not return Mr Jordaan advised the deputy principal, who was present at the meeting in her capacity as an observer union official, to substitute for the principal. Mr Jordaan pointed out that the applicant did not return to the meeting at all. One of the candidates who were shortlisted at the meeting was Mr Tele.
[19] Mr Jordaan explained that he was also present at the interviews on 11 November 2013. He averred that the applicant had told him that he (the applicant) was not invited to the interviews. Therefore he (the applicant) did not attend the interviews. Mr Jordaan pointed out that it was the applicant, as the school’s principal, who was responsible for arranging the interviews. Moreover, the applicant was part of the planning meeting which took place on 4 November 2013.
[20] Mr Jordaan explained that Mr Tele was recommended, to the Head of Departrment (“the HOD”) as the preferred candidate by the interviewing panel. The HOD, in turn, recommended Mr Tele as the preferred candidate to the Director of the Free State Department of Education (“the director”). The director appointed Mr Tele to the HOD post of the school. Mr Chuta, the director, signed the letter of appointment on 14 May 2014, which Mr Jordaan sent to the applicant. On 22 May 2014 Mr Tele signed his new contract of appointment as the HOD on post level 2 and salary level eight with the respondent at the respondent’s district office.
[21] Thereafter the applicant was supposed to complete and sign an “Assumption of Duty” (“AoD”) form, indicating the date when Mr Tele was to assume his duties in his new post. Mr Jordaan averred that the applicant, however, refused to complete the AoD form as he (the applicant) did not agree that Mr Tele was the appropriate person to have been appointed.
[22] Mr Tele reported to Mr Jordaan that he (Mr Tele) was afraid to return to work at the school because the applicant had threatened to shoot him. Mr Tele also reported to Mr Jordaan that the respondent had not paid his salary.
[23] In cross- examination Mr Masewawatla referred Mr Jordaan to a print out which he (Mr Masewawatla) averred was obtained from the respondent’s HR department. The print out sets out all the posts at the school and states that the post of HOD (post 62032 0002) was in fact frozen as at 13 May 2014 when it was printed. Mr Jordaan retorted that the post was not frozen as the director did make the appointment and the assumption of duty form was forwarded to the applicant to be completed to finalize the filling of the post. Moreover, the respondent’s HR department also concluded the contract of employment with Mr Tele. Mr Masewawatla submitted, in cross examining Mr Jordaan that the fact that the post was frozen meant that it therefore “cannot be advertised”.
Testimony of Mr Tele
[24] Mr Tele testified that his appointment letter was given to him by Ms Fourie, the deputy principal. He was later called by My Jordaan to sign his contract of employment. Mr Jordaan told Mr Tele that he (Mr Jordaan) was concerned why the AoD form was not signed as yet and instructed Mr Tele to present himself to the applicant the next day to sign the AoD form.
[25] Mr Tele pointed out that his appointment to the post, including his letter of appointment, contract of employment and AoD, was supposed to have been brought to his attention by the applicant. This did not happen. Rather this was brought to his attention by Ms Fourie and Mr Jordaan.
[26] Mr Tele averred that he was a PL1 educator until his appointment and assumption to his post of HOD on 22 May 2014. He pointed out, however, that when he did not receive his salary he made enquiries at the respondent’s district office. He was shown a letter which was sent to the respondent by the applicant dated 23 July 2014. He was told that his salary was stopped because of this letter. The letter stated:
“1. According to my documentation the PL2 (post no. 180036/202) at the above mentioned school is FROZEN.
2. To my dismay the post is now alive and is paid for without my (principal) knowledge.
3. I did not sign the assumption of duty form for the above mentioned post.
4. I am not going to be held accountable for the signature of the concerned teacher, which does not appear on the pay roll because according to my knowledge, I did not sign his assumption of duty form which I am not prepared to sign.
5. I need a thorough explanation regarding this post.”
[27] Mr Tele explained that he went to the applicant’s office on 13 October 2014 on his (the applicant’s) instruction. The applicant told Mr Tele at this meeting, while he was alone with him (the applicant), that he (Mr Tele) was not a HOD and that if he wanted to be a HOD he can be such a HOD somewhere else. The applicant explained to Mr Tele that if he (Mr Tele) persisted in being a HOD at his (the applicant’s) school, he (the applicant) will shoot and kill him (Mr Tele). Mr Tele explained that he was fearful because of this threat; as the applicant did not bring the fact of his (Mr Tele’s) appointment to him (Mr Tele), refused to sign the AoD form and refused to assign him (Mr Tele) work after his (Mr Tele’s) appointment as HOD. Moreover, explained Mr Tele, he had previously witnessed the applicant in a road rage incident when the applicant had pulled out his gun and threatened to shoot another person. The applicant concluded the meeting by telling Mr Tele that he (Mr Tele) must take the appointment letter back to Mr Jordaan “or else heads will roll”.
[28] In cross- examination Mr Masewawatla denied that Mr Tele ever travelled with the applicant and therefore he could not have witnessed the alleged road rage incident. Moreover, submitted Mr Masewawatla, if the applicant had indeed threatened Mr Tele, why then did he not report the incident to the police officials who were at the school at the time. Mr Masewawatla submitted that the police officers were called to the school by the applicant pursuant to a leaner being found in possession of drugs. Mr Tele retorted that he did not notice the police at the school on that day. He was escorted out of the meeting by the applicant. He felt unsafe. He went to the police station on 13 October 2014. The police officer who attended on him told him to return the next day to open a charge. Mr Tele returned the next day and formally opened the charge. He referred, in this regard, to his police statement which he made at the police station on 14 October 2014.
Testimony of Ms Shabalala
[29] Ms Shabalala testified that she is an administration clerk employed by the respondent. She had reported to the applicant. She now reports to Ms Fourie. She explained that she had telephoned Mr Tele, on the instructions of the applicant, and summoned him (Mr Tele) to a meeting with the applicant. She pointed out that she did not notice any police officers on the school premises when Mr Tele left the meeting on the day in question.
[30] Mr Masewawatla submitted, in cross- examination, that the applicant had called the police to come to the school and that he (the applicant) was with the police officers “throughout” his “interaction with Mr Tele” and that this was in front of Ms Shabalala’s office. Ms Shabalala responded that she “do not know anything about that”. In re-examination she explained that she did not see any police officers at the school during that entire day.
Testimony of Ms Fourie
[31] Ms Fourie testified that she was appointed as deputy principal at the school in 2013. She reported to the applicant. She explained that, when the applicant was absent from school on Thursday, 22 May 2014 and she was acting as the principal at the school, she received a telephone call from the department (the respondent). She was instructed to ensure that the AoD form is singed by Mr Tele and her. She got Mr Tele to sign it. She also signed it and thereafter submitted it to the department. When the applicant returned to work the next day he told Ms Fourie that she was wrong to have signed the AoD form and that she did not have his authority to have done so. He threatened her with disciplinary action. Ms Fourie pointed out that the applicant did not accept Mr Tele’s appointment as HOD and refused to assign him any work, including HOD duties.
[32] In cross- examination Ms Fourie was confronted with the print out which showed that the HOD post in question was frozenas at 13 May 2014. Ms Fourie retorted that she was had no knowledge of this document or of such information.
[33] Ms Fourie explained that on 13 January 2016 she was compelled to institute criminal action against the applicant as he had presented himself at the school and had refused to leave. She was, at the time, the school’s acting principal and the applicant was dismissed.
Testimony of Ms Mayaba
[34] Ms Mayaba testified that she is employed as a HR officer, administration clerk, and is stationed at the respondent’s district office. She explained that Mr Tele was appointed by the respondent as HOD at the school and was supposed to assume his duties as HOD on 22 May 2014. Mr Jordaan signed the AoD form as a witness. On 16 May 2014 she handed the original contract of employment, letter of appointment and AoD form to the applicant. The applicant was supposed to have signed the form as principal and returned it to the district office; but he did not do so. She explained that she discussed the issue with the applicant and pointed out to him that the director had approved the appointment.
[35] She pointed out that the applicant does not have the authority to “reject the director’s appointment”. He was therefore charged.
Testimony of the applicant
[36] The applicant testified that he “had a need” at the school for a HOD in the Life Orientation, Arts and Culture, Sotho and English subjects. He “prepared a plan” and sent it to district office. After the post was advertised he collected the names of the applicants for the post from the district office. He thereafter held a meeting with six of the 11 SGB members about the process to be followed and informed Mr Jordaan of the date when the short listing was scheduled.
[37] The applicant denied that he walked out of the short listing meeting. He averred that an argument ensued at the meeting because he “was not happy with the way things were going”. The applicant claimed that he asked Mr Jordaan, his senior, to speak to him outside. After he had spoken to Mr Jordaan, he (Mr Jordaan) returned to the meeting. The applicant, however, only returned later; by which time the meeting was concluded. He pointed out that he did a report dated 5 September 2013 to the director and “my senior” recording what had happened at the short listing meeting with “my recommendations. The applicant set out, in some detail, his grievance that he was dissatisfied with the manner in which the short listing proceedings took place. He requested that the district office intervene. The applicant pointed out that he received no response to his report and request.
[38] The applicant averred that he received the appointment letter from the district office that Mr Tele was appointed to the post. Mr Chuta called the applicant and informed him that Mr Tele did not meet the requirements of the post. The applicant explained that Mr Chuta instructed him to return the letter of appointment. The applicant complied. The applicant referred to a document to confirm that he did deliver the document on 21 May 2014. He pointed out that he did not refuse to give effect to Mr Tele’s appointment. He was merely complying with Mr Chuta’s instruction not to. He expected Mr Chuta to revert to him; but Mr Chuta did not. The applicant pointed out that he even wrote a letter to Mr Chuta “about the short listing”. The applicant insisted that Mr Chuta was under an obligation, under the circumstances, to “restart” the recruitment process.
[39] The applicant stated that he visited his doctor the next day. On his return the following day he discovered that Ms Fourie had signed the AoD form and had done so without informing him. He then obtained the print out from the respondent’s district office which showed that the post was in fact “frozen”. The applicant also explained that, on 3 June 2014, the district office visited the school and did a head count of the educators at the school. He confirmed the head count by signing the head count document. He pointed out two printouts which were obtained from the HR department on 13 May 2014. On one printout Mr Tele is recorded as occupying the HOD post while the other print out showed that the post was frozen. This “amazed” the applicant. He therefore wrote the letter of 23 July 2014 to the respondent. He averred that he was of the view that it was not possible to offer the post to anyone while it was frozen.
[40] The applicant asserted that he thereafter visited Mr Chuta and explained to him that “policy was overlooked to allow the post to be occupied by a person who did not qualify”. The applicant exclaimed that Mr Chuta “did not listen to me”. In cross- examination the applicant averred that, although the director had made the appointment, he (the applicant) had a duty to bring to the director’s attention that he may have been mistaken in making the appointment; as the post was in fact frozen and had been so frozen before the post was even advertised. The applicant averred that the respondent was bound by law to first unfreeze the post and only after three months had lapsed was it lawful to advertise it. This was not done. Hence, the instruction to implement the appointment was in fact unlawful. The applicant pointed out that the instruction was unlawful for the further reason that it forced him to accept Mr Tele as a HOD in the school despite Mr Tele not “meeting the requirements of the school”. The applicant exclaimed that he knows Mr Tele well. Mr Jordaan and two other officials had in fact made the appointment. Mr Tele was just not the right person for the job.
[41] The applicant conceded that he refused to assign any work to Mr Tele; but maintained that he did so because he had received the printout from the respondent’s HR department reflecting that the post was frozen and he was also awaiting a response from Mr Chuta.
[42] The applicant, not being satisfied with Mr Chuta’s appointment, sent two letters to the district office. This resulted in Mr Tele’s salary being stopped.
[43] The applicant disputed that he got notice of the disciplinary hearing before 11 December 2014, when the disciplinary tribunal first convened. He confirmed, however, that the disciplinary hearing was postponed to 19 December 2014. He pointed out that he still did not receive the notice by 19 December 2014 and was unaware of the allegations of misconduct against him when the disciplinary hearing proceeded on 19 December 2014. He did not defend himself as he was not prepared.
[44] The applicant averred that the respondent had stopped his salary on 28 February 2015 and that is how he became aware that he was in fact dismissed.
[45] The applicant conceded that he summoned Mr Tele to his office on 13 October 2014. He pointed out that he had also called the police to come to the school on that same day. Two police officers came to the school at 10:30 to investigate his complaint that one of his learners was found in possession of drugs. While the applicant was busy talking to the police officers, Mr Tele came to him. The applicant excused himself from the police officers to attend to Mr Tele. The applicant averred that he asked Mr Tele why he had not come to see him earlier. Mr Tele retorted that the applicant was “taking nonsense”. The applicant pointed out that he does not carry his firearm to school. He denied that he threatened Mr Tele and pointed out that Mr Tele passed the two police officers.
Analysis of evidence and arguments
[46] The Constitutional Court explained in CUSA v Tao Ying Metal Industries and Others(2008) 29 ILJ 2461 (CC) at [65]:
“... commissioners must … resolve the real dispute between the parties.”
[47] The essence of the allegations against the applicant were that he refused to implement the appointment of Mr Tele to the HOD post by signing the AoD form and assigning him HOD tasks. He also committed the misconduct of threatening Mr Tele when he allegedly told him he will shoot him if he persisted on being a HOD at the school. He was further accused of causing the respondent’s finance department to stop paying Mr Tele his salary. The applicant’s defences were, in essence, that the instruction to implement the appointment was unlawful as Mr Tele was not the right person for the job and the post was frozen. Hence, the director had mistakenly appointed Mr Tele to the post. He denied having threatened Mr Tele. He also denied causing the finance department to stop Mr Tele’s salary.
[48] The applicant version that he had in fact left the short listing meeting, and was away for a short period of time, only to return when it was concluded, was probably not true for various reasons. Even on the applicant’s version Mr Jordaan returned to the meeting after stepping out of the meeting with the applicant. Yet the applicant did not follow Mr Jordaan into the meeting. If indeed the purpose of stepping out of the meeting was to privately confide in Mr Jordaan, it begs the question: why did the applicant not return to the meeting with Mr Jordaan. Mr Jordaan’s version that the applicant stormed out of the meeting not to return is more probable. This is even corroborated by the applicant in his (the applicant’s) written report to the respondent’s district office and his testimony.
[49] At any rate the short listing proceeded in the absence of the applicant with Ms Fourie deputising for the applicant. I do not see why it was even necessary for the applicant to be in attendance at the meeting in the circumstances and why his absence was in fact misconduct. His presence was demanded purely because of his position as principal. Mr Jordaan himself testified that the deputy principal may lawfully assume the principal’s duties at the meeting in the absence of the applicant.
[50] The applicant’s absence at the short listing meeting is important, however, for other reasons. It demonstrated his defiance of being part of the process. He testified that he himself initiated the recruitment process by sending the “plan” to the district office, which resulted in the advertisement being issued. Yet he later vehemently refused to implement the decision of the director when the director had appointed Mr Tele to the post. His reasons were, in essence, that the director was mistaken to have made the appointment in the light of the printout that the post was frozen. If this was indeed the real reason, it begs the question: why then did the applicant send the plan to the district office. Why did he not bring this to the attention of the district office when the advertisement was published? The printout itself is problematic. There were in fact two print outs that contradicted each other: one reflecting that the post was frozen while the other reflecting that the post was not frozen.
[51] It is important that the applicant did not lead any evidence to prove that the post was in fact frozen and what, if any, the implications were. He relied on the printout and argued that an inference should be drawn that the post was indeed frozen and that the implication was that the post could not lawfully be filled. In the light of the fact that the applicant made the allegation, he was under a duty to prove it. He failed to do so.
[52] In Cooper and Another NNO v Merchant Trade Finance Ltd2000 (3) SA 1009 (SCA) Zulman JA observed that
“It is not incumbent upon the party who bears the onus of proving an absence of an intention to prefer to eliminate by evidence all possible reasons for the making of the disposition other than an intention to prefer. This is so because the Court, in drawing inferences from the proved facts, acts on a preponderance of probability. The inference of an intention to prefer is one which is, on a balance of probabilities, the most probable, although not necessarily the only inference to be drawn. … If the facts permit of more than one inference, the Court must select the most 'plausible' or probable inference. If this favours the litigant on whom the onus rests he is entitled to judgment. If, on the other hand, an inference in favour of both parties is equally possible, the litigant will not have discharged the onus of proof.”
[53] In the current matter the applicant testified that it was the director who instructed him to return the original letter of appointment. He complied with the instruction. This version begs the question: why did he then have to go so out of his way to convince the director to reverse his decision of having made the appointment? Even on the applicant’s own testimony, the director had completely ignored his various letters. This is not only a contradiction of the applicant’s version that it was the director that instructed him to return the letter of appointment; but it is also a clear indication that the director did not reverse the appointment. On the contrary, the appointment remained. This was despite the applicant’s complaint that the post was frozen. The most plausible inference I can draw from these facts is that the post was in fact not frozen.
[54] The applicant’s assertion that the instruction to implement the appointment was also unlawful because Mr Tele was not the right person for the job is a clear indication that he had absolutely no respect for the authority of the director and/or any regard of the process that preceded the appointment. He even absented himself from the interview meeting in protest. It is also a clear indication that the applicant wanted to appoint someone else, other than Mr Tele; and when it did not go his way, from the short listing process, he took up a stance that he would do everything under his power to frustrate Mr Tele actually taking up his post. In the process he became unmanageable, brazen in his stance and insubordinate.
[55] The applicant, as principal, was in a position of enormous responsibility and leadership in so far as the recruitment process was concerned. The process is engineered as a guard against the very conduct that the applicant had displayed, namely to attempt to autocratically impose one’s own sense of judgement against the collective judgement of the HR committee. Moreover, the authority of the director in making the appointment, as opposed to the applicant’s responsibility of implementing the director’s decision, is critical in the process. The applicant failed to display that the director’s decision in appointing Mr Tele was a mistake; or that his (the applicant’s) responsibility of implementing the decision by signing the AoD form and assigning work to Mr Tele was justified because the instruction was in fact unlawful.
[56] The applicant was not a credible witness. Mr Jordaan, on the other hand, was a credible witness. So was Mr Tele. Mr Tele testified that he was threatened by the applicant. The applicant denied this. The applicant averred that, if he had indeed threatened Mr Tele; then why did he not immediately tell the police officers who were at the school at the time. Mr Tele explained that he did not see the police there at the time but he did lodge a complaint with Mr Jordaan and the police station.
[57] The applicant’s version, on the other hand, was that the police officers were with him when Mr Tele came to his office. Yet Ms Shabalala testified that even she was not aware of the police being at the school when Mr Tele was with the applicant. It is highly probable that the police were indeed not at the school at the time and that Mr Tele did not in fact see the police on the school premises. Clearly Mr Tele’s version was not an afterthought. He had in fact immediately made a report to Mr Jordaan and the SAPS.
[58] The Respondent did not submit any evidence to prove that the applicant had in fact committed misconduct when the finance department stopped Mr Telel’s salary. From the evidence before me the probabilities are that the finance department was negligent in stopping Mr Tele’s salary on the basis of the applicant’s representations.
[59] In the light of the applicant’s misconduct in refusing to comply with the director’s instruction to allow Mr Tele to assume his duties at the school, the applicant’s continued persistence in this regard, his threats to Mr Tele and his complete lack of remorse; I find that the applicant’s dismissal was substantively fair as dismissal was an appropriate sanction in all the circumstances.
[60] The applicant testified that he attended the disciplinary hearing even though he did not get notice of the hearing. There was no testimony from the applicant, or from anyone else, as to how the applicant got word that the disciplinary proceedings were taking place when it first convened.
[61] Even if the applicant was unaware of what the allegations were when the disciplinary tribunal first convened; he had the opportunity of obtaining the notice, which incorporated the allegations, at the second sitting. He says he did not. Mr Jordaan’s testimony that the applicant was in fact handed a copy of the notice, incorporating the allegations, during the first sitting was not challenged by the applicant. In the light of all the evidence before me on this issue, I make the finding that the applicant was, in all probability, aware of the allegations against him long before the second sitting when the disciplinary hearing commenced. This was the only procedural challenge by the applicant. The dismissal was procedurally fair.
AWARD
[62] The dismissal of the applicant, Mr T J Makhethi, was fair as contemplated in section 188(1) of the Labour Relations Act 66 of 1995. The respondent has discharged the onus to show that dismissal was procedurally and substantively fair.
Commissioner M Naidoo