PSES54-14/15 FS
PSES54-14/15 FS
Award Date:
14 January 2016
Case Number: PSES54-14/15 FS
Province: Free State
Applicant: Bonakele Mathews Sani
Respondent: Department of Education Free State
Issue: Unfair Dismissal - Constructive Dismissal
Venue: Manyakeng Public School, Ladybrand
Award Date: 14 January 2016
Arbitrator: Anna Maria Fourie
Arbitrator: Anna Maria Fourie
Case Reference No.:PSES54-14/15 FS
Date of report: 14 January 2016
In the pre-arbitration meeting between:
Bonakele Mathews Sani Applicant/Employee party
and
Department of Education – Free State Respondent/Employer party
Applicant’s representative: In Person
Tel: 084 272 7144
Fax: None provided
E-mail: sanibm@live.co.za
Respondent’s representative: Mr PM Tladi
Tel: 051 – 404 4205
Fax: 086 520 1324
E-mail: None provided
DETAILS OF HEARING AND REPRESENTATION:
1. The Applicant referred an alleged unfair dismissal dispute for arbitration in terms of section 191 of the Labour Relations Act 66 of 1995 as amended (the LRA). The dispute was set down for arbitration at Manyakeng Public School, Ladybrand on 28 August 2015. However, the Respondent applied for a postponement. The dispute was then set down for arbitration on 30 November 2015 at 10h00 at Manyakeng Public School.
2. The Applicant was present and represented himself. The Respondent was represented by Mr Tladi, Assistant Director: Dispute Sub-Directorate of the Respondent. There was no need for an Interpreter. The hearing was recorded electronically and I made notes by hand.
ISSUE TO BE DETERMINED:
3. Dismissal was not in dispute. In terms of section 192(2) of the LRA the Respondent carried the burden to prove on a balance of probabilities that the dismissal was procedurally and substantively fair. I had to determine whether dismissal was procedurally and substantively fair.
4. The Applicant sought reinstatement, should I find in his favour.
BACKGROUND:
5. The Applicant was employed by the Respondent in 1990. He was an Educator. He was
dismissed on 25 February 2014 for failing to declare that he served as a Municipal Councillor. He was appointed as the Principal of Manyatseng Public School in 2013. He earned approximately R22 000.00 per month after deductions.
6. The Applicant challenged the Procedural fairness of his dismissal on the following grounds:
1. None of his immediate Supervisors were involved in his disciplinary hearing.
2. He was not ready to answer to the charge against him.
3. He did not feel comfortable to cross-examine the Employer’s witnesses during the disciplinary hearing.
4. He felt that he could not call witnesses to the disciplinary hearing, as that might have prejudiced them.
7. The Applicant challenged the Substantive fairness of his dismissal on the following grounds:
1. He was not aware of the Rule that he was dismissed for transgressing.
2. He had no prior warnings.
3. Dismissal was not the appropriate sanction.
8. The Respondent is the Department of Education, Free State. The Applicant worked for the Respondent at Manyatseng Public School in Ladybrand.
SURVEY OF EVIDENCE AND ARGUMENTS
9. I only summarised the evidence and arguments that I considered to be relevant to the issues that I had to determine. The Respondent submitted a bundle of documents into evidence. The Applicant did not submit any documentary evidence.
EMPLOYER’S CASE
Clifford Liphaphang Macholo testified as follows under oath:
10. He was the Chief Registry Clerk of the Respondent in the Motheo District Office. He worked with the files of Teachers, Clerks and General Workers. The division he worked in was responsible for communication between the Department and schools. It was their responsibility to ensure that all communication intended for schools reached its destination.
11. Communication to schools was in the form of circulars. An example of such a circular was page 48 of the Respondent’s bundle, which was a copy of circular No 40 of 2010. The Manager of an institution, e.g. the Principal of a school, should have been aware of circulars before the staff members.
12. The circular related to section 33 of the Employment of Educators Act, 1998, which stipulates:
“a) an educator shall place such time as the Minister may determine at the disposal of the employer.
b) no educator shall without permission of the employer perform or undertake to perform remunerative work outside the educator’s official duty or work.”
13. Employees were also made aware that a transgression of the above mentioned section would be met with disciplinary action. Employees were further advised that they had to disclose any financial interest, e.g. directorship, shares and remunerated work outside the public service by completing the “Application form to perform remunerative work outside the public service / Declaration of financial interest”. The said form had to be signed by the relevant authorities and then it had to be forwarded to the Human Resources Management Directorate for processing. An approved application would be valid for the financial year concerned. An Employee had to submit an application for each financial year.
14. A related circular was issued in 2011, namely No 16 of 2011. In terms of this circular, which was directed at Principals, amongst others, employees were reminded that they had to renew their applications regarding the performance of remunerative work outside the Public Service. The circular also referred to the related circular in 2010, namely No 40 of 2010 and explained that the application form was improved.
15. Under cross-examination he submitted that he could not recall the exact date on which circular No 40 of 2010 was issued. He submitted that he was only appointed in the division in 2012.
16. He submitted that the School Management Governance and Development (SMGD) must warn Principals in advance to ensure that they are aware of circulars. The Principals should know about circulars before educators. If a Principal was not alerted about a circular, then the SMGD did not do its job.
EMPLOYEE’S CASE
Bonakele Mathews Sani, testified as follows under oath:
17. He worked for the Respondent for twenty years. He was married and his wife is not employed.
He has seven minor children to support. Presently he is employed as a Municipal Councillor.
18. He believed that the outcome of his disciplinary hearing was not fair if one considered that he never knew the rule that he had to declare the fact that he was a Municipal Councillor. He only became aware of the rule when the panel at the disciplinary hearing read it to him.
19. He also believed that the transgression was not a dismissible offence. Had he been made aware of the rule, he would have complied with it. Furthermore, the fact that he was a Councillor did not have a negative impact on his job performance. In fact, the results of the school actually improved whilst he was the Principal. Furthermore, three of the Educators received certificates for their performance from the Respondent.
20. According to the register of circulars dispatched to schools, circular No 16 of 2011 was not recorded. This confirmed that he never received the circular. The circular was also not recorded in the school’s occurrence book. The Department and the SMGD did not inform him of the circular. There was also no mention of any such circular being issued in 2013. That proved that he could not know about the rule, since he never received it.
21. Under cross-examination he conceded that he generally received communication from the Respondent by means of circulars. He could not recall what the last circular that he received related to. He conceded that, as Principal, he was one of the addressees of the circular.
22. He submitted that he was never made aware of the rule, not even whilst he was the Deputy-Principal of the school.
23. He conceded that he attended Council meetings during working hours. He submitted that there was no problem with that provided he obtained permission to do so. He submitted that he obtained permission from the Principal to attend the meetings. When he was the Principal he did not obtain permission, he merely informed the Deputy-Principal that he would attend a meeting. He conceded that he received remuneration from the Respondent during the time that he attended the meetings.
24. He insisted that he submitted leave of absence in order to attend the Council meetings. He conceded that he did not obtain permission to be paid for attending Council meetings. He submitted that he would not allow Educators to leave the school and conduct their own business during working hours. When asked why he left during working hours, he said that no one had told him that he was not allowed to.
25. He conceded that it was not fair that he was remunerated by both the Council and the School for the time that he attended Council meetings.
Pitso Vincent Kabi testified as follows under oath:
26. He was the Secretary for Management Meetings of the schools in Ladybrand. He submitted that he could not recall that the circular relating to employees carrying out remunerative work outside the Department and could not recall that it was discussed at such meetings. He submitted that the last meeting he took minutes at was more than a year ago.
27. Under cross-examination he submitted that he had been a teacher since 1991. He was not surprised by Circular No 40 of 2010. The circular was sent to schools some time ago.
28. Educators should spend seven hours per day at school. It was not permissible for an Educator to leave the school premises in order to conduct business outside, unless the Principal authorised it. The same applied to the Principal. The Principal could not leave the premises of the school without the permission of the Employer.
ANALYSIS OF EVIDENCE AND ARGUMENTS
29. Dismissal was not in dispute. To determine whether or not the dismissal was fair, I considered the issues that the Applicant indicated as being in dispute with regards to procedure. The Applicant challenged procedural fairness on the following grounds:
1. None of his immediate Supervisors were involved in his disciplinary hearing.
2. He was not ready to answer to the charge against him.
3. He did not feel comfortable to cross-examine the Employer’s witnesses during the disciplinary
hearing.
4. He felt that he could not call witnesses to the disciplinary hearing, as that might have prejudiced
them.
30. The Applicant was a School Principal prior to his dismissal. He was a highly educated person who was appointed in a position of authority and trust. It was also common cause that he served as a Municipal Councillor at present and that he had been serving as such for more than ten years. The Applicant could thus not claim that he was ignorant with regards to procedural fairness in disciplinary action. In fact, as the Principal of the school it would indeed have been expected of him to impose discipline on his staff members whenever the need arose.
31. The Applicant did not make it clear as to why he felt that it was a procedural irregularity that none of his immediate supervisors were involved in the disciplinary proceedings against him. He was charged for failure to comply with a legislative requirement which applied to all Educators. He did not dispute that he did not comply. His defence was based on the submission that he was not aware of the requirement. I fail to understand how awareness of the rule could be dependent on the Applicant’s immediate superiors’ presence. As I pointed out before, the Applicant was in a position of authority. The mere fact that he was in such a position, meant that it could reasonably be expected of him to have been aware of the rule in question.
32. The second issue was that the Applicant claimed that he was not ready to answer to the charges against him. However, the Applicant submitted on record that he was notified in writing of the disciplinary hearing a month or two weeks (he could not remember which) prior to the disciplinary hearing. Thus, he had at least two weeks’ notice prior to the disciplinary hearing. This is twelve days more than most employees would be afforded. The charge in question was not complicated. It did not call for the presentation of technical evidence. It also did not require the perusal of stacks of documentation. It was a simple charge. It related to the transgression by the Applicant of a statutory requirement. The question was whether or not he transgressed it, as simple as that. I fail to understand how the Applicant could claim that he was not ready to answer to the charge, two weeks after he was notified of it.
33. The third issue was that the Applicant did not feel comfortable to question the Respondent’s witnesses during the disciplinary hearing. This is a predicament that many an employee may face. However, the question is whether or not the Respondent allowed the Applicant to question its witnesses during the disciplinary proceedings. The Applicant did not claim that he was not afforded an opportunity to question the witnesses. He merely claimed that he felt uncomfortable. This was his own subjective feeling and he did not substantiate or justify his uneasiness by referring to any unreasonable conduct on the part of the Respondent which could have triggered his uneasiness.
34. The same argument that applied to the question of cross-examination, applies to the question of calling witnesses. The Applicant submitted that he was concerned that if he called witnesses to testify on his behalf, it might prejudice them in their employment. He submitted that this fear was based on an assumption and he conceded that no one from the Respondent’s side had said or done anything that could justify this fear of his.
35. In summary, I am of the view that the Applicant’s challenges to procedural fairness had no substance. In fact, after raising it as challenges at the onset of the arbitration the Applicant never dealt with it again during the arbitration.
36. Regarding substantive fairness, the Applicant challenged the following:
1. He had no prior warnings, thus he had a clean record.
2. He was not aware of the rule in question.
3. Dismissal was not the appropriate sanction.
37. As I pointed out before, the Applicant was appointed in a position of authority. He was entrusted
with the management of the school, which included the management of his staff members. It
goes without saying that he would have to administer discipline from time to time. This meant that he would have to be conversant with all the rules that applied to Educators. This is not to mention that the rule in question was actually a statutory requirement which applied not only to Principals, but to all Educators.
38. The Applicant claimed that he was not made aware of the rule by the Respondent. That may be
the case. The Respondent did not present proof that the circular in question actually reached
the Applicant. However, I have serious doubt that the Applicant can claim ignorance to be an
excuse. He was the Principal and should have made it his business to know the legal requirements. The issue in question was not a new legislative requirement. By the time that the Applicant was charged, the requirement had been in place for at least three years. I find it very strange that the Applicant did not become aware of the requirement in all those years. Furthermore, the Applicant’s very own witness submitted that, being part of the school community in Ladybrand, he was not surprised by the rule, as he was aware of its existence. In fact, he submitted that the rule was communicated to all schools by means of a circular some time ago.
39. I found that on a balance of probabilities it could reasonably be expected of the Applicant to
have been aware of the rule in question. I reject his excuse that he was not aware of the rule. His own concessions under cross-examination revealed that he understood very well that it was not correct to leave the school during working hours to conduct other business elsewhere. If this rule applied to Educators, there was no reason why it did not also apply to the Principal. In any event, the Applicant did not present any evidence to support the notion that the rule did not apply to him.
40. The Applicant’s first and last challenge to substantive fairness, namely that he had a clean
record and that dismissal was not the appropriate sanction goes hand in hand. Both of these challenges relate to the fact that the Applicant was of the view that dismissal was not the appropriate sanction in the circumstances.
41. In considering the appropriateness of the sanction, one needs to consider whether or not the
misconduct in question was serious enough to warrant dismissal. Furthermore, one would consider factors such as whether or not the Applicant’s conduct contained an element of dishonesty, whether or not the situation could be remedied by disciplinary action short of dismissal, whether or not the Applicant’s conduct prejudiced the trust relationship, the Applicant’s years of service and seniority and whether or not the Applicant was in a position of trust.
42. The legislative provision reads as follows:
Section 33 of the Employment of Educators Act No 76 of 1998:
“33 Performance of other work by educators
(1) Unless an educator’s conditions of service provide otherwise-
(a) an educator shall place such time as the Minister may determine at the disposal of the employer;
(b) no educator shall without permission of the employer perform or undertake to perform remunerative work outside the educator’s official duty or work;”
43. It was apparent from the copies of circular No 40 of 2010 included in the Respondent’s bundle of
documents that the Respondent informed Deputy Directors-General, Chief Directors, Chief Financial Officers, Directors, Principals, all Employees and Unions that non-compliance with the legislative requirement to disclose will be met with disciplinary action.
44. As I mentioned before, the Applicant was in position of authority. As the Principal of the school, he was entrusted with the responsibility to manage the staff amongst other duties. He could thus be seen as the custodian of the Respondent’s code of conduct. It is commonplace that an employee cannot perform a second job without disclosing it to his or her employer. This is generally known. In this instance, there was even a legally induced duty upon the Applicant to disclose the fact that he was a remunerated Municipal Councillor. As a consequence of the position he held, he did not have the luxury of claiming ignorance. It is commonplace in our law that ignorance is not an excuse.
45. The fact that the Applicant submitted that it was not in order for Educators to leave the school during working hours to perform other business demonstrated that the principle embedded in the legal provision was not foreign to him. I cannot reconcile his submission that he did not know the rule relating to disclosure with his knowledge that it was not in order for Educators to do other business without permission. Unless, of course, the Applicant was of the view that for some reason, Principals were exempt from the rules and the law. However, I doubt that a man with the educational background of the Applicant, would demonstrate such an error in judgement.
46. The more probable conclusion from the evidence was that the Applicant knew the rule and failed to observe and abide by it. The attempts he made to convince the Respondent as well as me during the arbitration that he did not know the rule, was simply not convincing and could just lead to a conclusion that he might have acted in bad faith.
47. Considering the fact that the Applicant acted as Councillor since 2000 to date, I am of the view that corrective measures short of dismissal would not have remedied the misconduct. The Applicant should have declared his activities long ago. He failed to do so and his attempt to blame his superiors for not informing him of the rule surely impacted negatively on the trust relationship.
48. Considering the above, I am of the view that the misconduct was serious enough to justify dismissal and that dismissal was an appropriate sanction.
AWARD
49. The dismissal of the Applicant, Bonakele Mathews Sani, by the Employer, Department of
Education – Free State, was both procedurally and substantively fair.
ELRC Panellist
Province: Free State
Applicant: Bonakele Mathews Sani
Respondent: Department of Education Free State
Issue: Unfair Dismissal - Constructive Dismissal
Venue: Manyakeng Public School, Ladybrand
Award Date: 14 January 2016
Arbitrator: Anna Maria Fourie
Arbitrator: Anna Maria Fourie
Case Reference No.:PSES54-14/15 FS
Date of report: 14 January 2016
In the pre-arbitration meeting between:
Bonakele Mathews Sani Applicant/Employee party
and
Department of Education – Free State Respondent/Employer party
Applicant’s representative: In Person
Tel: 084 272 7144
Fax: None provided
E-mail: sanibm@live.co.za
Respondent’s representative: Mr PM Tladi
Tel: 051 – 404 4205
Fax: 086 520 1324
E-mail: None provided
DETAILS OF HEARING AND REPRESENTATION:
1. The Applicant referred an alleged unfair dismissal dispute for arbitration in terms of section 191 of the Labour Relations Act 66 of 1995 as amended (the LRA). The dispute was set down for arbitration at Manyakeng Public School, Ladybrand on 28 August 2015. However, the Respondent applied for a postponement. The dispute was then set down for arbitration on 30 November 2015 at 10h00 at Manyakeng Public School.
2. The Applicant was present and represented himself. The Respondent was represented by Mr Tladi, Assistant Director: Dispute Sub-Directorate of the Respondent. There was no need for an Interpreter. The hearing was recorded electronically and I made notes by hand.
ISSUE TO BE DETERMINED:
3. Dismissal was not in dispute. In terms of section 192(2) of the LRA the Respondent carried the burden to prove on a balance of probabilities that the dismissal was procedurally and substantively fair. I had to determine whether dismissal was procedurally and substantively fair.
4. The Applicant sought reinstatement, should I find in his favour.
BACKGROUND:
5. The Applicant was employed by the Respondent in 1990. He was an Educator. He was
dismissed on 25 February 2014 for failing to declare that he served as a Municipal Councillor. He was appointed as the Principal of Manyatseng Public School in 2013. He earned approximately R22 000.00 per month after deductions.
6. The Applicant challenged the Procedural fairness of his dismissal on the following grounds:
1. None of his immediate Supervisors were involved in his disciplinary hearing.
2. He was not ready to answer to the charge against him.
3. He did not feel comfortable to cross-examine the Employer’s witnesses during the disciplinary hearing.
4. He felt that he could not call witnesses to the disciplinary hearing, as that might have prejudiced them.
7. The Applicant challenged the Substantive fairness of his dismissal on the following grounds:
1. He was not aware of the Rule that he was dismissed for transgressing.
2. He had no prior warnings.
3. Dismissal was not the appropriate sanction.
8. The Respondent is the Department of Education, Free State. The Applicant worked for the Respondent at Manyatseng Public School in Ladybrand.
SURVEY OF EVIDENCE AND ARGUMENTS
9. I only summarised the evidence and arguments that I considered to be relevant to the issues that I had to determine. The Respondent submitted a bundle of documents into evidence. The Applicant did not submit any documentary evidence.
EMPLOYER’S CASE
Clifford Liphaphang Macholo testified as follows under oath:
10. He was the Chief Registry Clerk of the Respondent in the Motheo District Office. He worked with the files of Teachers, Clerks and General Workers. The division he worked in was responsible for communication between the Department and schools. It was their responsibility to ensure that all communication intended for schools reached its destination.
11. Communication to schools was in the form of circulars. An example of such a circular was page 48 of the Respondent’s bundle, which was a copy of circular No 40 of 2010. The Manager of an institution, e.g. the Principal of a school, should have been aware of circulars before the staff members.
12. The circular related to section 33 of the Employment of Educators Act, 1998, which stipulates:
“a) an educator shall place such time as the Minister may determine at the disposal of the employer.
b) no educator shall without permission of the employer perform or undertake to perform remunerative work outside the educator’s official duty or work.”
13. Employees were also made aware that a transgression of the above mentioned section would be met with disciplinary action. Employees were further advised that they had to disclose any financial interest, e.g. directorship, shares and remunerated work outside the public service by completing the “Application form to perform remunerative work outside the public service / Declaration of financial interest”. The said form had to be signed by the relevant authorities and then it had to be forwarded to the Human Resources Management Directorate for processing. An approved application would be valid for the financial year concerned. An Employee had to submit an application for each financial year.
14. A related circular was issued in 2011, namely No 16 of 2011. In terms of this circular, which was directed at Principals, amongst others, employees were reminded that they had to renew their applications regarding the performance of remunerative work outside the Public Service. The circular also referred to the related circular in 2010, namely No 40 of 2010 and explained that the application form was improved.
15. Under cross-examination he submitted that he could not recall the exact date on which circular No 40 of 2010 was issued. He submitted that he was only appointed in the division in 2012.
16. He submitted that the School Management Governance and Development (SMGD) must warn Principals in advance to ensure that they are aware of circulars. The Principals should know about circulars before educators. If a Principal was not alerted about a circular, then the SMGD did not do its job.
EMPLOYEE’S CASE
Bonakele Mathews Sani, testified as follows under oath:
17. He worked for the Respondent for twenty years. He was married and his wife is not employed.
He has seven minor children to support. Presently he is employed as a Municipal Councillor.
18. He believed that the outcome of his disciplinary hearing was not fair if one considered that he never knew the rule that he had to declare the fact that he was a Municipal Councillor. He only became aware of the rule when the panel at the disciplinary hearing read it to him.
19. He also believed that the transgression was not a dismissible offence. Had he been made aware of the rule, he would have complied with it. Furthermore, the fact that he was a Councillor did not have a negative impact on his job performance. In fact, the results of the school actually improved whilst he was the Principal. Furthermore, three of the Educators received certificates for their performance from the Respondent.
20. According to the register of circulars dispatched to schools, circular No 16 of 2011 was not recorded. This confirmed that he never received the circular. The circular was also not recorded in the school’s occurrence book. The Department and the SMGD did not inform him of the circular. There was also no mention of any such circular being issued in 2013. That proved that he could not know about the rule, since he never received it.
21. Under cross-examination he conceded that he generally received communication from the Respondent by means of circulars. He could not recall what the last circular that he received related to. He conceded that, as Principal, he was one of the addressees of the circular.
22. He submitted that he was never made aware of the rule, not even whilst he was the Deputy-Principal of the school.
23. He conceded that he attended Council meetings during working hours. He submitted that there was no problem with that provided he obtained permission to do so. He submitted that he obtained permission from the Principal to attend the meetings. When he was the Principal he did not obtain permission, he merely informed the Deputy-Principal that he would attend a meeting. He conceded that he received remuneration from the Respondent during the time that he attended the meetings.
24. He insisted that he submitted leave of absence in order to attend the Council meetings. He conceded that he did not obtain permission to be paid for attending Council meetings. He submitted that he would not allow Educators to leave the school and conduct their own business during working hours. When asked why he left during working hours, he said that no one had told him that he was not allowed to.
25. He conceded that it was not fair that he was remunerated by both the Council and the School for the time that he attended Council meetings.
Pitso Vincent Kabi testified as follows under oath:
26. He was the Secretary for Management Meetings of the schools in Ladybrand. He submitted that he could not recall that the circular relating to employees carrying out remunerative work outside the Department and could not recall that it was discussed at such meetings. He submitted that the last meeting he took minutes at was more than a year ago.
27. Under cross-examination he submitted that he had been a teacher since 1991. He was not surprised by Circular No 40 of 2010. The circular was sent to schools some time ago.
28. Educators should spend seven hours per day at school. It was not permissible for an Educator to leave the school premises in order to conduct business outside, unless the Principal authorised it. The same applied to the Principal. The Principal could not leave the premises of the school without the permission of the Employer.
ANALYSIS OF EVIDENCE AND ARGUMENTS
29. Dismissal was not in dispute. To determine whether or not the dismissal was fair, I considered the issues that the Applicant indicated as being in dispute with regards to procedure. The Applicant challenged procedural fairness on the following grounds:
1. None of his immediate Supervisors were involved in his disciplinary hearing.
2. He was not ready to answer to the charge against him.
3. He did not feel comfortable to cross-examine the Employer’s witnesses during the disciplinary
hearing.
4. He felt that he could not call witnesses to the disciplinary hearing, as that might have prejudiced
them.
30. The Applicant was a School Principal prior to his dismissal. He was a highly educated person who was appointed in a position of authority and trust. It was also common cause that he served as a Municipal Councillor at present and that he had been serving as such for more than ten years. The Applicant could thus not claim that he was ignorant with regards to procedural fairness in disciplinary action. In fact, as the Principal of the school it would indeed have been expected of him to impose discipline on his staff members whenever the need arose.
31. The Applicant did not make it clear as to why he felt that it was a procedural irregularity that none of his immediate supervisors were involved in the disciplinary proceedings against him. He was charged for failure to comply with a legislative requirement which applied to all Educators. He did not dispute that he did not comply. His defence was based on the submission that he was not aware of the requirement. I fail to understand how awareness of the rule could be dependent on the Applicant’s immediate superiors’ presence. As I pointed out before, the Applicant was in a position of authority. The mere fact that he was in such a position, meant that it could reasonably be expected of him to have been aware of the rule in question.
32. The second issue was that the Applicant claimed that he was not ready to answer to the charges against him. However, the Applicant submitted on record that he was notified in writing of the disciplinary hearing a month or two weeks (he could not remember which) prior to the disciplinary hearing. Thus, he had at least two weeks’ notice prior to the disciplinary hearing. This is twelve days more than most employees would be afforded. The charge in question was not complicated. It did not call for the presentation of technical evidence. It also did not require the perusal of stacks of documentation. It was a simple charge. It related to the transgression by the Applicant of a statutory requirement. The question was whether or not he transgressed it, as simple as that. I fail to understand how the Applicant could claim that he was not ready to answer to the charge, two weeks after he was notified of it.
33. The third issue was that the Applicant did not feel comfortable to question the Respondent’s witnesses during the disciplinary hearing. This is a predicament that many an employee may face. However, the question is whether or not the Respondent allowed the Applicant to question its witnesses during the disciplinary proceedings. The Applicant did not claim that he was not afforded an opportunity to question the witnesses. He merely claimed that he felt uncomfortable. This was his own subjective feeling and he did not substantiate or justify his uneasiness by referring to any unreasonable conduct on the part of the Respondent which could have triggered his uneasiness.
34. The same argument that applied to the question of cross-examination, applies to the question of calling witnesses. The Applicant submitted that he was concerned that if he called witnesses to testify on his behalf, it might prejudice them in their employment. He submitted that this fear was based on an assumption and he conceded that no one from the Respondent’s side had said or done anything that could justify this fear of his.
35. In summary, I am of the view that the Applicant’s challenges to procedural fairness had no substance. In fact, after raising it as challenges at the onset of the arbitration the Applicant never dealt with it again during the arbitration.
36. Regarding substantive fairness, the Applicant challenged the following:
1. He had no prior warnings, thus he had a clean record.
2. He was not aware of the rule in question.
3. Dismissal was not the appropriate sanction.
37. As I pointed out before, the Applicant was appointed in a position of authority. He was entrusted
with the management of the school, which included the management of his staff members. It
goes without saying that he would have to administer discipline from time to time. This meant that he would have to be conversant with all the rules that applied to Educators. This is not to mention that the rule in question was actually a statutory requirement which applied not only to Principals, but to all Educators.
38. The Applicant claimed that he was not made aware of the rule by the Respondent. That may be
the case. The Respondent did not present proof that the circular in question actually reached
the Applicant. However, I have serious doubt that the Applicant can claim ignorance to be an
excuse. He was the Principal and should have made it his business to know the legal requirements. The issue in question was not a new legislative requirement. By the time that the Applicant was charged, the requirement had been in place for at least three years. I find it very strange that the Applicant did not become aware of the requirement in all those years. Furthermore, the Applicant’s very own witness submitted that, being part of the school community in Ladybrand, he was not surprised by the rule, as he was aware of its existence. In fact, he submitted that the rule was communicated to all schools by means of a circular some time ago.
39. I found that on a balance of probabilities it could reasonably be expected of the Applicant to
have been aware of the rule in question. I reject his excuse that he was not aware of the rule. His own concessions under cross-examination revealed that he understood very well that it was not correct to leave the school during working hours to conduct other business elsewhere. If this rule applied to Educators, there was no reason why it did not also apply to the Principal. In any event, the Applicant did not present any evidence to support the notion that the rule did not apply to him.
40. The Applicant’s first and last challenge to substantive fairness, namely that he had a clean
record and that dismissal was not the appropriate sanction goes hand in hand. Both of these challenges relate to the fact that the Applicant was of the view that dismissal was not the appropriate sanction in the circumstances.
41. In considering the appropriateness of the sanction, one needs to consider whether or not the
misconduct in question was serious enough to warrant dismissal. Furthermore, one would consider factors such as whether or not the Applicant’s conduct contained an element of dishonesty, whether or not the situation could be remedied by disciplinary action short of dismissal, whether or not the Applicant’s conduct prejudiced the trust relationship, the Applicant’s years of service and seniority and whether or not the Applicant was in a position of trust.
42. The legislative provision reads as follows:
Section 33 of the Employment of Educators Act No 76 of 1998:
“33 Performance of other work by educators
(1) Unless an educator’s conditions of service provide otherwise-
(a) an educator shall place such time as the Minister may determine at the disposal of the employer;
(b) no educator shall without permission of the employer perform or undertake to perform remunerative work outside the educator’s official duty or work;”
43. It was apparent from the copies of circular No 40 of 2010 included in the Respondent’s bundle of
documents that the Respondent informed Deputy Directors-General, Chief Directors, Chief Financial Officers, Directors, Principals, all Employees and Unions that non-compliance with the legislative requirement to disclose will be met with disciplinary action.
44. As I mentioned before, the Applicant was in position of authority. As the Principal of the school, he was entrusted with the responsibility to manage the staff amongst other duties. He could thus be seen as the custodian of the Respondent’s code of conduct. It is commonplace that an employee cannot perform a second job without disclosing it to his or her employer. This is generally known. In this instance, there was even a legally induced duty upon the Applicant to disclose the fact that he was a remunerated Municipal Councillor. As a consequence of the position he held, he did not have the luxury of claiming ignorance. It is commonplace in our law that ignorance is not an excuse.
45. The fact that the Applicant submitted that it was not in order for Educators to leave the school during working hours to perform other business demonstrated that the principle embedded in the legal provision was not foreign to him. I cannot reconcile his submission that he did not know the rule relating to disclosure with his knowledge that it was not in order for Educators to do other business without permission. Unless, of course, the Applicant was of the view that for some reason, Principals were exempt from the rules and the law. However, I doubt that a man with the educational background of the Applicant, would demonstrate such an error in judgement.
46. The more probable conclusion from the evidence was that the Applicant knew the rule and failed to observe and abide by it. The attempts he made to convince the Respondent as well as me during the arbitration that he did not know the rule, was simply not convincing and could just lead to a conclusion that he might have acted in bad faith.
47. Considering the fact that the Applicant acted as Councillor since 2000 to date, I am of the view that corrective measures short of dismissal would not have remedied the misconduct. The Applicant should have declared his activities long ago. He failed to do so and his attempt to blame his superiors for not informing him of the rule surely impacted negatively on the trust relationship.
48. Considering the above, I am of the view that the misconduct was serious enough to justify dismissal and that dismissal was an appropriate sanction.
AWARD
49. The dismissal of the Applicant, Bonakele Mathews Sani, by the Employer, Department of
Education – Free State, was both procedurally and substantively fair.
ELRC Panellist