PSES 315 – 12/13 GP
PSES 315 – 12/13 GP
Award Date:
22 November 2013
Case Number: PSES 315 – 12/13 GP
Province: Gauteng
Applicant: Mr. S Hlatshwayo
Respondent: Department of Education, Gauteng
Issue: Unfair Dismissal - Misconduct
Venue: Wonderboom
Award Date: 22 November 2013
Arbitrator: Coen Havenga
IN THE ELRC ARBITRATION BETWEEN:
Mr. S HLATSHWAYO
“the Applicant”
and
DEPARTMENT OF EDUCATION – GAUTENG PROVINCE
“the Respondent”
ARBITRATION AWARD
Case Number: PSES 315 – 12/13 GP
Last date of arbitration: 14 August 2013
Last of the closing arguments submitted in writing on: 25 September 2013
Date of award: 22 November 2013 (Extension arranged)
COEN HAVENGA
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION
The last day of the hearing of the arbitration took place on 14 August 2013 at the offices of the Gauteng Department of Education in Wonderboom. The last of the written closing arguments were received on 25 September 2013, and will form part of the record. Due to the mere volume of the evidence (my handwritten notes are 100 pages) the finalization of the award was delayed, as arranged with the case management of the ELRC. The Applicant is Mr. S Hlatshwayo, represented by Mr. M Teffo, an advocate. The Respondent is the Gauteng Department of Education, represented by Ms. G Mabeta.
TERMS OF REFERENCE AND ISSUES TO BE DECIDED
The arbitration takes place in terms of the referral of the dispute by the Applicant. The parties held a pre – arbitration meeting, and the minutes thereof forms part of the record.
The parties agreed that the following facts are common cause, and are accepted as proven:
The Applicant was permanently employed by the Respondent as a Chief Education Specialist: IDS at the time of his dismissal on 04 September 2012.
The Applicant was found guilty on allegations 1, 2, 3, 5, and 6, and not guilty on allegation 4.
The following issues were placed in dispute:
SUBSTANTIVE FAIRNESS – dismissal was unfair in that the Applicant denies committing any of the misconduct he was found guilty of.
PROCEDURAL FAIRNESS – the allegations were brought outside the stipulated timeframes and the chairperson of the disciplinary hearing was biased.
The parties then agreed on the following:
To empower the arbitrator to determine the substantive and procedural fairness of the dismissal;
Annexure B of Collective agreement no. 1 of 2006 governs the procedure of the arbitration hearing; and
To empower the arbitrator to award an appropriate remedy. The Applicant claims retrospective reinstatement.
The documents contained in bundles A, B, C, D, E and F were submitted by the parties.
The Applicant was found guilty on five counts of misconduct. The charges 1, 2, 3, 5 and 6 on which he was found guilty appears on page 1 and 2 of Bundle A.
PRELIMINARY ISSUES
During her opening statement The Respondent’s representative submitted that she will prove that the Applicant committed the alleged misconduct. The Applicant submitted that no proper investigation took place. Fraud and forgery was committed by ITEC. Applicant did not present him as district director. The Applicant alleges forgery of his signature in the following instances:
B, page 28 – the Applicant did not sign and did not enter his name as “Seth Hlatshwayo” or “district director”. A person from ITEC did it.
B, page 29 – same as above.
B, page 37 – Applicant denies the signature and the entry as district director.
B, page 42 – Applicant denies the signature and the entry as district director.
B, page 43 – not his signature or entry as district director.
B, page 45 – disputes the signature and entry as district director.
B, page 52 to 55, 56, and 57 – he did not make any entry on that form.
B, page 58 – it is the Applicant’s signature.
B, page 65 – it is the Applicant’s signature.
A, page 13 – Applicant disputes that it is his signature. The letter was not written by him.
B, page 26 – it is the Applicant’s signature, but not his entry as district director.
The chairperson of the disciplinary hearing was biased. The Applicant earned a gross salary of R42 458-51 per month.
SUMMARY OF EVIDENCE
The proceedings have been recorded digitally, and a summary of the Respondent’s and Applicant’s witnesses’ evidence follows below.
WILLIAM MAKGABO testified that he is an employee of the DOE based at Head Office in the compliance inspectorate. His unit investigated the allegations around the signing of the agreement with Merchant West and Scifin. His unit deals with fraud and corruption issues. They found that there were memorandums of understanding between the two entities and the DOE represented by the Applicant. They found that there was a breach of legislation as the Applicant did not have the authority to enter into such agreements and to bind the DOE to cover debts of schools. It contravenes PFMA provisions. The Applicant exceeded his limits in his position as CES. He did not have the authority or mandate to enter into such agreements. The Applicant signed on behalf of Tshwane West District on A7. This agreement provided for default schools to be bailed out by the DOE in 14 days. The Applicant bound the DOE to that guarantee to pay. The entry “district director” was made by an employee of Merchant West. The DOE has already been sued by Merchant West because four schools already defaulted. The DOE had to pay R157 000 as settlement. ITEC is the supplier of the CCTV equipment and Merchant West is their financing partner. A24 is an email found on the Applicant’s laptop. It was sent to arrange a meeting. The HOD had no knowledge of the meetings. The Applicant was not delegated as shown by the treasury regulations on A31. A28 and A29 is read out. Thea Coetzer received complaints from schools regarding ITEC. She communicated with Makofane, the district director. Those letters make it clear the DOE is not liable. A30 is a rental agreement signed by the Applicant. Scifin knew the schools won’t be able to pay, and wanted this agreement to be signed. The schools were tricked into entering the agreement. The schools complained. The Applicant indicated to the witness that he signed A16 – 20. The representatives of Scifin will confirm that he did sign it. He did not dispute his signature during the investigation. The handwriting expert did find the signature of Applicant on B43 at (1) to be fraudulent, as well as the signature on A28 and 29. The schools involved in those documents however do not form part of the charges against the Applicant. During cross-examination he testified that he has been appointed by the HOD to do the investigation. The unit is mandated to do the investigations. There is no need for a specific appointment for each complaint. The allegations came from the district as a result of schools complaining to that district. They consulted with Merchant West and Scifin and it became known that the Applicant had meetings with them where he presented himself as the district director and signed agreements in their presence. That confirmed his involvement in this matter. The witness met with the Applicant and informed him verbally of the allegations, presented the documents to him and he confirmed signing it. The investigation report was finalized at the beginning of 2011 and made available to the HOD, Mr. Ngobeni. The witness has more than 15 years’ experience of internal investigations. The report will contain recommendations in respect of further action. The commitment given by the Applicant to guarantee non-payment coverage by the DOE, whilst he had no such authority, incurred risk for the DOE. Merchant West sued the DOE for R750 000 based on that agreement the Applicant signed. Vic Viljoen and Roxanne Mitchell signed as witnesses and said the Applicant presented himself as district director on 27 August 2009. It is strange that he did not open a fraud case if he feels someone else signed in his name. It is improbable that a person of his seniority would sign a blank form, as he claims he did. Kedibone Moremi was the Applicant’s secretary. She also signed in capacity of CFO, whilst she was not. The witness recommended that she be disciplined for that as well. She indicated that when she was made to sign and instructed by the Applicant to, the entry of CFO was not there, it was blank. Although allegation 2 refers to a memorandum of understanding, whilst the document (B33) is a memorandum of agreement, it refers to the same document. He signed on B37 on behalf of Tshwane West district. The Applicant admitted to the witness it is his signature and he singed it. Leon Kotze will also confirm that he witnessed the Applicant signing it. In several meetings with Scifin the Applicant presented himself as the director, discussed the documents, and later signed in that capacity. It was confirmed by the handwriting expert. It is now convenient for the Applicant to deny it is his signature. When he was confronted with the documents he did not deny it. A person in his position would know the implications of signing a blank document. Ms. Letlhake indicated that the Applicant instructed her to sign the document. He said she can sign as he did also. A30 is the master rental agreement the Applicant signed. He presented himself as district director when he signed the document. Any delegation to sign must be in writing. Mathe was a sales person of ITEC. The State Attorneys advised the DOE that they are liable on the basis of the Applicant’s signature. He did open a criminal case against Mathe.
WICKUS VILJOEN testified that he employed by Merchant West. He is a director and head of the public sector division. His main responsibility is to ensure that the paper work is in legally order when their sales people contract with state institutions. They provide funding for operating equipment. The Applicant presented himself as the district director. He met him once. His staff had several meetings with him. A8 and13 was signed by the Applicant in respect of office automation equipment, to be financially assisted by the DOE in the event of default. The witness was present when he signed. They met at UJ at the library as the Applicant was on his way to a seminar overseas. The contract states it was signed at Tshwane because that is where the meeting was going to be held. The contract was already completed before the sudden change of venue. Clause 2 on A10 means that the DOE will cover the default amount within 14 days. The Applicant introduced himself as the district director. During cross-examination he testified that ITEC supplies office automation equipment, and Merchant West finance the schools. The Applicant did present himself as the district director. He thinks the wording in the charges referring to a memorandum of understanding is a typo. It refers to the memorandum of agreement. The Applicant signed as director and said he was duly authorized. He had the option of submitting the agreement to the legal department of the DOE before singing it. John, the sales person for ITEC also introduced the Applicant as the district director, and the Applicant also confirmed that he is. The Applicant signed in front of him and initialed each page. The witness would not make him sign if he was not the director. He signed various other documents in that capacity.
ROXANNE MITCHELL testified that she was with Merchant West in 2009. A11 was signed by the Applicant at UJ as district director. She completed the part with the date and capacity. They were supposed to meet in Tshwane but got a message to meet the Applicant at UJ. Tshwane was already filled in on the contract by that time. Kedibone signed at the district office. They went from UJ to the district office where she signed. During cross-examination she testified that she witnessed the Applicant signing it at UJ. They signed after he signed. The Applicant did not tell her himself that he is the district director. He signed other documents as director. The document was not blank, she completed it at the office, and that is why she wrote Tshwane, as they were going to meet there. They did not change it to UJ as they did not want to scratch out. They did not know at the time that Mathe was unreliable. They did have a letter in their possession where the Applicant signed as district director. The Applicant did not object to the capacity that was entered before he signed.
LEON KOTZE testified that in 2009 he was employed by Scifin as sales manager. John Mathe from ITEC indicted that the Applicant is the district director. When they met with the Applicant at the Dros he signed A20 in front of the witness. The Applicant did not enter the capacity. The Applicant took the document back to his department and a few days later Mathe brought the document back to them, signed by the CFO. All the documents they received previously stated that the Applicant was the district director. Mathe introduced him as the district director. Le Grange specifically asked the Applicant whether he was the correct party to sign, as it needs to be signed by the district director, and the Applicant confirmed. During cross-examination he testified that everybody presented the Applicant as the district director. He never objected or corrected it. Mathe introduced the Applicant as the district director. He would never have dealt with the Applicant if he knew he was not the district director. He never indicted he is the CES.
BILLY COETZEE testified that he was employed by Scifin in 2009 as the credit risk manager. They met with the Applicant at the Dros in Hatfield. Mathe introduced the Applicant as the district director. The Applicant did not say anything when he was introduced as such. The Applicant signed in front of them and took the documents with him. They were never informed he is the CES. Le Grange asked the Applicant if he is the right person, whether he is the district director and whether he was authorized to sign, and the Applicant responded by saying “yes”. If they knew he was the CES they would not have entered into the agreement as he would not have been authorized. During cross-examination he testified that the Applicant was with them at the Dros on 13 November 2009. He had a T-bone steak. He never denied it when Mathe introduced him as the district director.
LOURIKA BUCKLEY testified that she is a forensic handwriting examiner. She submitted her report as bundle C. It contains her qualifications and experience on page 14. She testified comprehensively as to the findings contained in her report which forms part of the record. During cross-examination she testified that she used 5 files of genuine signatures of the Applicant to compare the disputed signatures. There would always be a natural range of variation, it is human. The paraph at the end of his signature has a wide range of variation which is quite common. If someone attempts to imitate, it might look the same, but the person would not know where the pen usually starts. It would be difficult to get the size ratios of the loops correct, or the placement of the curves. It is unlikely to forge precisely. Her conclusions are based on all the signatures she examined and all the factors she took into account. It is not good practice to get a person to make signatures for purposes of the investigation. They use signatures produced in normal cause of business, which is the best signatures to use for comparison. She was not biased. She compared the disputed signatures with those hundreds of signatures in the 5 files which he signed during the course of his employment. With the exception of Q5, Q6 and Q13 all the signatures examined were produced by the Applicant. She used the standard method of comparison used by everybody in the industry. It is not advisable to use a signature obtained from a person that is being investigated, as he might try to change the manner of writing. It will not provide a true version of the signature.
THEA COETSER testified that she was a CES in 2009. The Applicant was her colleague. During August 2009 she was acting District Director. Mr. Makofane appointed her. The Applicant was not the district director. A principal wrote a letter to the acting director. She received calls from schools complaining. She received the documents signed by the Applicant guaranteeing payment. She wrote a memorandum to the schools putting the process on hold. The next day she had a visit from two men, one white and one black. They wanted to know why she put a hold on their program. She explained the rules to them. They were from ITEC. The complaints continued and she took it up with the Applicant. He said she should not worry it is under control. He said he will handle all queries. During cross-examination she testified that the Applicant signed as district director. It will be even worse if he signed blank documents. It does not matter whether one calls it a memorandum of agreement or understanding, the bottom line is he signed it.
KEDIBONE MORENI testified that she was a chief administration clerk in 2009. She reported to the Applicant. On 27 August 2009 people from ITEC came to her office and asked her sign the last page of a document. She refused. They said the Applicant said she must sign. She called the Applicant and he told her to sign. He said it is a minor document and she must sign it. She asked whether she would be in trouble if she signed and he said if there is any trouble he will be accountable. She signed on his instruction. He said she must give them a copy of Her ID document. She was hesitant to sign. During cross-examination she testified that she signed because the Applicant said she must. He did not take no for an answer. Ms. Lethlage was with her. He was her first boss and she thought that is how it is supposed to be. He kept on giving her reasons to sign. He convinced her by saying he will be accountable if there is trouble. She signed without reading as the Applicant told her what it is. The Applicant already signed it. Her evidence is not a fabrication. She was suspended but not charged for signing. No one told her what to testify.
JOHANNES HATTINGH testified that he is a forensic handwriting examiner. He submitted his report as bundle F. It contains his qualifications and experience on page 6. He testified comprehensively as to the findings contained in his report which forms part of the record. During cross-examination he testified that he received the specimen signatures from Mr. Mabule. A person could try and disguise requested specimens to try and avoid detection. He did not find such attempt in this case. The poor quality of some copied documents made examination difficult. It made it impossible to reach definite conclusions.
SUMMARY OF ARGUMENT
Both parties submitted extensive written closing arguments which forms part of the record. The arguments will therefore not be repeated here. I have perused and considered the contents of the arguments.
ANALYSIS OF EVIDENCE AND ARGUMENT
6.1 SUBSTANTIVE FAIRNESS OF THE DISMISSAL
In considering the substantive fairness of the dismissal of Mr. Hlatshwayo for misconduct, the principles contained in Schedule 2: Disciplinary Code and Procedures for Educators, promulgated in terms of the Employment of Educators Act, no. 76 of 1998, as well as the Code of Good Practice for Dismissals in Schedule 8 of the Labour Relations Act, no. 66 of 1995, provide the following guidelines:
Whether or not the accused employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
If the rule or standard was contravened, whether or not –
The rule was a valid or reasonable rule or standard;
The accused employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
The employer has consistently applied the rule or standard.
Dismissal was an appropriate sanction for the contravention of the rule or standard.
The dismissal of Mr. Hlatshwayo is not in dispute, and the Respondent is therefore required to prove that the dismissal was both substantively and procedurally fair. The standard of proof that is applicable in hearings of this nature is identical to the civil standard – “the employer must prove the case against the employee on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1.
6.1.1 WAS A RULE OR STANDARD REGULATING CONDUCT IN, OR OF RELEVANCE TO, THE WORKPLACE CONTRAVENED?
As stated above, the standard of proof that is applicable is identical to the civil standard – “the employer must prove the case against the employee on the balance of probabilities and not beyond reasonable doubt”.
Arbitration hearings are not merely reviews of the employer’s decision to dismiss employees, or the propriety of the procedures followed by the employer (John Grogan Dismissal 320 (2002)). An arbitration hearing constitutes a full rehearing on the merits plus an investigation of the fairness of the procedure followed by the employer. (See Gibb v Nedcor Ltd 1998 19 ILJ 364 (LC)). Arbitration amounts to a hearing de novo. The decision of the arbitrator is not reached with reference to the evidential material that was before the employer at the time of its enquiry, but on the evidential material placed before the arbitrator during the arbitration hearing. This means that all relevant evidence must be placed before the arbitrator in proper form, even if it has been fully canvassed at the employee’s disciplinary hearing. (See Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] JOL 20811 (CC), where the Court approved the LAC dictum in Count Fair Foods (Pty) Ltd v CCMA & Others [1999] 11 BLLR 1117 (LAC)). The arbitrator must hear all the evidence relating to the issue, and decide afresh on the facts found proved whether the employee committed the misconduct for which he was dismissed or not. If not, the arbitrator is bound to find that the dismissal was substantively unfair, even though the employer acted reasonably on the basis of information available to it at the time of the dismissal (John Grogan Dismissal 93 (2002)).
I accept that the memorandum of understanding and the memorandum of agreement in actual fact refers to the same document which the Applicant is alleged to have signed. The crux of the matter is whether he signed that document/s, and if so, in what capacity.
Even though the Respondent carries the onus of proof, it is notable that the Applicant did not testify, nor did he call any witnesses, except for a forensic handwriting examiner.
I accept the evidence of Makgabo, the investigator, that when he confronted the Applicant, he did not deny signing the documents. His evidence was not discredited at all. One would have expected the Applicant to deny it forthwith when confronted by the investigator, if he was innocent. That would be the probable action of a person that is wrongfully accused. His version that he signed a blank document is improbable. A person of his experience and seniority would surely know that is unacceptable. The UJ meeting refutes his version of signing a blank document. If the document was blank, the witnesses would surely have entered the venue as UJ, and not Tshwane, as they would have had the opportunity to do so. The witnesses have no reason to falsely accuse the Applicant. They confirmed with him whether he is the right person to sign, and whether he is the district director. He said he was. It is improbable that they would have gone ahead with the signing unless the Applicant indeed confirmed such. The undisputed evidence is that they deal with State institutions on a regular basis, and would therefor know which person has to sign in order to make an agreement binding. It is improbable that they would go through such exercise just to end up with an invalid agreement. I accept the evidence on a balance of probabilities that the Applicant did present himself and signed as the district director in all those alleged instances. There is no evidence from the Applicant to refute their version. Even if the perception was created by another person through introduction, the Applicant had a duty to correct it, and by not doing so silently created the impression that he was the district director. Even if the capacity was not entered by him, he similarly had the duty to correct it when he signed the documents.
There are two conflicting expert reports, but I find sufficient direct corroborating probable evidence to sway me to accept the Respondent’s evidence in respect of the handwriting on a balance of probabilities.
Kedibone Moreni has no reason to falsely accuse the Applicant. I accept her evidence that she only signed because the Applicant exerted undue influence on her. There is no evidence from the Applicant to refute her version. I find no substance in the allegation that her version is a fabrication and a lie. I can find no probable motive for the witnesses to fabricate evidence and lie at the arbitration hearing. The Applicant did not provide any probable evidence that would support such notion.
I find that it was proven on balance of probabilities that the Applicant committed the misconduct as alleged in allegation 1, 2, 3, 5 and 6. There is therefore evidence before me that proves that Mr. Hlatshwayo contravened a rule or standard regulating conduct in, or of relevance to, the workplace.
6.1.2 WAS THE RULE A VALID OR REASONABLE RULE?
Considering the nature of the employer’s business, the circumstances in which it operates, the type of work performed by the employee and the environment in which the work is performed, it is accepted that the rules are valid, i.e. lawful and reasonable. It is reasonable to expect educators to refrain from being dishonest, and form exerting undue influence on subordinates. It has also been specifically prohibited by legislation. There is no evidence that the rules had been abrogated by disuse because the employer had not relied on it for some time.
WAS THE ACCUSED EMPLOYEE AWARE, OR COULD HE REASONABLY BE EXPECTED TO HAVE BEEN AWARE, OF THE RULE?
What is required by the provisions of paragraph 7 of Schedule 8 for a dismissal for misconduct to be fair is that “the employee was aware or could be reasonably expected to have been aware of the rule or standard”. The offences the employee has been charged with appears in the Disciplinary Code of the employer as well as the Employment of Educators Act, no. 76 of 1998. The Applicant did not place knowledge of the rules in dispute.
6.1.4 HAS THE RULE BEEN CONSISTENTLY APPLIED BY THE EMPLOYER?
There is no evidence of inconsistent and arbitrary action on the part of the employer in this matter. There is no evidence that the employer has habitually or frequently condoned similar offences in the past. There is also no evidence that the employer’s standards differ materially from those applied by other employers. The Applicant has not raised inconsistent application by the employer of the rule as an issue in dispute.
6.1.5 WAS DISMISSAL AN APPROPRIATE SANCTION FOR THE CONTRAVENTION OF THE RULE?
In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness.
The Respondent has argued that dismissal is appropriate taking into account the nature of the transgressions. It is therefore necessary to consider whether dismissal would be an appropriate sanction, and whether a lesser sanction would serve the desired purpose. In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness. The case of Sidumo v Rustenburg Platinum Mines Ltd [2007] 28 ILJ 2405 (CC) dealt with the scope of commissioners powers when deciding whether the sanction of dismissal for proven misconduct is fair. The final decision whether the sanction of dismissal for proven misconduct is appropriate rests with the commissioner. I must therefore as impartial adjudicator consider all relevant circumstances in deciding whether the dismissal of the Applicant was the appropriate sanction initially.
The Code of Good Conduct: Dismissal, states that one of the requirements of a fair dismissal for misconduct is that the dismissal must be an “appropriate” remedy, in the light of the facts of the case.
In an earlier dictum of Conradie JA a similar approach was also followed when the court pronounced that -:
“A dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise.”. The courts have accepted that the ultimate justification for employers’ power to impose discipline flows from their right to manage their business effectively. (See De Beers Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC)).
It is well established that the relationship between employer and employee is in essence one of trust and confidence and that, at common law, conduct clearly inconsistent therewith entitles the “innocent” party to cancel the agreement (See Angehrn and Piel v Federal Cold Storage Co Ltd 1908 TS 761 at 777–778.).
The conduct of Mr. Hlatshwayo was dishonest. The Labour Appeal Court had this to say about the effect of dishonesty by an employee on the employment relationship in Anglo American Farms t/a Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC): “This trust which the employer places in the employee is basic to and forms the substratum of the relationship between them. A breach of this duty goes to the root of the contract of employment and of the relationship between employer and employee.”.
Dismissal is generally justified in all cases of serious dishonesty, not merely those in which employees enrich themselves materially at the expense of their employer – John Grogan, Workplace Law, 10th Edition. Dismissal is an appropriate sanction when the offence involves dishonesty, even in the case of a first-time offender. See Pillay v C G Smith Sugar Ltd (1985) 6 ILJ 530 (IC) at 538 G.
According to John Grogan, Dismissal, 2002, an employer generally would have two reasons for wanting to get rid of a dishonest employee – one is that the employee can no longer be trusted, and the other is the need to send a signal to other employees that dishonesty will not be tolerated. The latter relates to the deterrence theory of punishment.
The employee’s actions were of such a nature that it surely will have a negative impact on the trust relationship. The Applicant was dishonest and his actions incurred liability which resulted in huge financial losses for the employer. I had due regard to the principles set out in the case of Edcon Ltd v Pillemer NO & others [2010] 1 BLLR 1 (SCA) which underlines the principle that the employer has the burden of proof to show that the trust relationship has broken down irretrievably. The evidence shows that the trust has been broken down irretrievably, and leaves no option for the application of progressive discipline. The labour courts have held that the destruction of the relationship of trust is the ultimate justification for a dismissal. (See Council for Scientific & Industrial Research v Fijen [1996] 6 BLLR 685 (AD); Lahee Park Club v Garrat [1997] 9 BLLR 1137 (LAC)).
Section 18(5)(a) of the Employment of Educators Act states that an educator may be dismissed if found guilty of dishonesty. Having considered all the facts before me, including but not limited to, the gravity of the offence, the position of trust the Applicant was employed in, and the years of service of the Applicant I am of the opinion that the sanction of dismissal is fair and appropriate in the circumstances.
6.2 PR0CEDURAL FAIRNESS OF THE DISMISSAL
Section 188 of the Labour Relations Act, 66 of 1995, confirms that procedural fairness is an independent requirement for a fair dismissal. In considering the procedural fairness of the dismissal of Mr. Hlatshwayo for misconduct, the principles contained in item 4 of Schedule 8 ― The Code of Good Practice: Dismissal of the Labour Relations Act, 66 of 1995, is followed. Stricter standards are also applied to large employers than are expected of smaller employers.
Schedule 2: Disciplinary Code and Procedures for Educators, promulgated in terms of the Employment of Educators Act, no. 76 of 1998, states that discipline must be applied in a prompt, fair, consistent and just manner.
I find no substance in the allegations of procedural unfairness. The Applicant presented no evidence in respect of the alleged bias of the chairperson of the disciplinary hearing, or the alleged breach of stipulated timeframes.
7 AWARD
I find that the dismissal of Mr. Hlatshwayo was for a fair reason related to his conduct, and that the dismissal was effected in accordance with a fair procedure. He is not entitled to any relief.
No order is made as to costs.
COEN HAVENGA
ARBITRATOR
22 November 2013
Province: Gauteng
Applicant: Mr. S Hlatshwayo
Respondent: Department of Education, Gauteng
Issue: Unfair Dismissal - Misconduct
Venue: Wonderboom
Award Date: 22 November 2013
Arbitrator: Coen Havenga
IN THE ELRC ARBITRATION BETWEEN:
Mr. S HLATSHWAYO
“the Applicant”
and
DEPARTMENT OF EDUCATION – GAUTENG PROVINCE
“the Respondent”
ARBITRATION AWARD
Case Number: PSES 315 – 12/13 GP
Last date of arbitration: 14 August 2013
Last of the closing arguments submitted in writing on: 25 September 2013
Date of award: 22 November 2013 (Extension arranged)
COEN HAVENGA
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION
The last day of the hearing of the arbitration took place on 14 August 2013 at the offices of the Gauteng Department of Education in Wonderboom. The last of the written closing arguments were received on 25 September 2013, and will form part of the record. Due to the mere volume of the evidence (my handwritten notes are 100 pages) the finalization of the award was delayed, as arranged with the case management of the ELRC. The Applicant is Mr. S Hlatshwayo, represented by Mr. M Teffo, an advocate. The Respondent is the Gauteng Department of Education, represented by Ms. G Mabeta.
TERMS OF REFERENCE AND ISSUES TO BE DECIDED
The arbitration takes place in terms of the referral of the dispute by the Applicant. The parties held a pre – arbitration meeting, and the minutes thereof forms part of the record.
The parties agreed that the following facts are common cause, and are accepted as proven:
The Applicant was permanently employed by the Respondent as a Chief Education Specialist: IDS at the time of his dismissal on 04 September 2012.
The Applicant was found guilty on allegations 1, 2, 3, 5, and 6, and not guilty on allegation 4.
The following issues were placed in dispute:
SUBSTANTIVE FAIRNESS – dismissal was unfair in that the Applicant denies committing any of the misconduct he was found guilty of.
PROCEDURAL FAIRNESS – the allegations were brought outside the stipulated timeframes and the chairperson of the disciplinary hearing was biased.
The parties then agreed on the following:
To empower the arbitrator to determine the substantive and procedural fairness of the dismissal;
Annexure B of Collective agreement no. 1 of 2006 governs the procedure of the arbitration hearing; and
To empower the arbitrator to award an appropriate remedy. The Applicant claims retrospective reinstatement.
The documents contained in bundles A, B, C, D, E and F were submitted by the parties.
The Applicant was found guilty on five counts of misconduct. The charges 1, 2, 3, 5 and 6 on which he was found guilty appears on page 1 and 2 of Bundle A.
PRELIMINARY ISSUES
During her opening statement The Respondent’s representative submitted that she will prove that the Applicant committed the alleged misconduct. The Applicant submitted that no proper investigation took place. Fraud and forgery was committed by ITEC. Applicant did not present him as district director. The Applicant alleges forgery of his signature in the following instances:
B, page 28 – the Applicant did not sign and did not enter his name as “Seth Hlatshwayo” or “district director”. A person from ITEC did it.
B, page 29 – same as above.
B, page 37 – Applicant denies the signature and the entry as district director.
B, page 42 – Applicant denies the signature and the entry as district director.
B, page 43 – not his signature or entry as district director.
B, page 45 – disputes the signature and entry as district director.
B, page 52 to 55, 56, and 57 – he did not make any entry on that form.
B, page 58 – it is the Applicant’s signature.
B, page 65 – it is the Applicant’s signature.
A, page 13 – Applicant disputes that it is his signature. The letter was not written by him.
B, page 26 – it is the Applicant’s signature, but not his entry as district director.
The chairperson of the disciplinary hearing was biased. The Applicant earned a gross salary of R42 458-51 per month.
SUMMARY OF EVIDENCE
The proceedings have been recorded digitally, and a summary of the Respondent’s and Applicant’s witnesses’ evidence follows below.
WILLIAM MAKGABO testified that he is an employee of the DOE based at Head Office in the compliance inspectorate. His unit investigated the allegations around the signing of the agreement with Merchant West and Scifin. His unit deals with fraud and corruption issues. They found that there were memorandums of understanding between the two entities and the DOE represented by the Applicant. They found that there was a breach of legislation as the Applicant did not have the authority to enter into such agreements and to bind the DOE to cover debts of schools. It contravenes PFMA provisions. The Applicant exceeded his limits in his position as CES. He did not have the authority or mandate to enter into such agreements. The Applicant signed on behalf of Tshwane West District on A7. This agreement provided for default schools to be bailed out by the DOE in 14 days. The Applicant bound the DOE to that guarantee to pay. The entry “district director” was made by an employee of Merchant West. The DOE has already been sued by Merchant West because four schools already defaulted. The DOE had to pay R157 000 as settlement. ITEC is the supplier of the CCTV equipment and Merchant West is their financing partner. A24 is an email found on the Applicant’s laptop. It was sent to arrange a meeting. The HOD had no knowledge of the meetings. The Applicant was not delegated as shown by the treasury regulations on A31. A28 and A29 is read out. Thea Coetzer received complaints from schools regarding ITEC. She communicated with Makofane, the district director. Those letters make it clear the DOE is not liable. A30 is a rental agreement signed by the Applicant. Scifin knew the schools won’t be able to pay, and wanted this agreement to be signed. The schools were tricked into entering the agreement. The schools complained. The Applicant indicated to the witness that he signed A16 – 20. The representatives of Scifin will confirm that he did sign it. He did not dispute his signature during the investigation. The handwriting expert did find the signature of Applicant on B43 at (1) to be fraudulent, as well as the signature on A28 and 29. The schools involved in those documents however do not form part of the charges against the Applicant. During cross-examination he testified that he has been appointed by the HOD to do the investigation. The unit is mandated to do the investigations. There is no need for a specific appointment for each complaint. The allegations came from the district as a result of schools complaining to that district. They consulted with Merchant West and Scifin and it became known that the Applicant had meetings with them where he presented himself as the district director and signed agreements in their presence. That confirmed his involvement in this matter. The witness met with the Applicant and informed him verbally of the allegations, presented the documents to him and he confirmed signing it. The investigation report was finalized at the beginning of 2011 and made available to the HOD, Mr. Ngobeni. The witness has more than 15 years’ experience of internal investigations. The report will contain recommendations in respect of further action. The commitment given by the Applicant to guarantee non-payment coverage by the DOE, whilst he had no such authority, incurred risk for the DOE. Merchant West sued the DOE for R750 000 based on that agreement the Applicant signed. Vic Viljoen and Roxanne Mitchell signed as witnesses and said the Applicant presented himself as district director on 27 August 2009. It is strange that he did not open a fraud case if he feels someone else signed in his name. It is improbable that a person of his seniority would sign a blank form, as he claims he did. Kedibone Moremi was the Applicant’s secretary. She also signed in capacity of CFO, whilst she was not. The witness recommended that she be disciplined for that as well. She indicated that when she was made to sign and instructed by the Applicant to, the entry of CFO was not there, it was blank. Although allegation 2 refers to a memorandum of understanding, whilst the document (B33) is a memorandum of agreement, it refers to the same document. He signed on B37 on behalf of Tshwane West district. The Applicant admitted to the witness it is his signature and he singed it. Leon Kotze will also confirm that he witnessed the Applicant signing it. In several meetings with Scifin the Applicant presented himself as the director, discussed the documents, and later signed in that capacity. It was confirmed by the handwriting expert. It is now convenient for the Applicant to deny it is his signature. When he was confronted with the documents he did not deny it. A person in his position would know the implications of signing a blank document. Ms. Letlhake indicated that the Applicant instructed her to sign the document. He said she can sign as he did also. A30 is the master rental agreement the Applicant signed. He presented himself as district director when he signed the document. Any delegation to sign must be in writing. Mathe was a sales person of ITEC. The State Attorneys advised the DOE that they are liable on the basis of the Applicant’s signature. He did open a criminal case against Mathe.
WICKUS VILJOEN testified that he employed by Merchant West. He is a director and head of the public sector division. His main responsibility is to ensure that the paper work is in legally order when their sales people contract with state institutions. They provide funding for operating equipment. The Applicant presented himself as the district director. He met him once. His staff had several meetings with him. A8 and13 was signed by the Applicant in respect of office automation equipment, to be financially assisted by the DOE in the event of default. The witness was present when he signed. They met at UJ at the library as the Applicant was on his way to a seminar overseas. The contract states it was signed at Tshwane because that is where the meeting was going to be held. The contract was already completed before the sudden change of venue. Clause 2 on A10 means that the DOE will cover the default amount within 14 days. The Applicant introduced himself as the district director. During cross-examination he testified that ITEC supplies office automation equipment, and Merchant West finance the schools. The Applicant did present himself as the district director. He thinks the wording in the charges referring to a memorandum of understanding is a typo. It refers to the memorandum of agreement. The Applicant signed as director and said he was duly authorized. He had the option of submitting the agreement to the legal department of the DOE before singing it. John, the sales person for ITEC also introduced the Applicant as the district director, and the Applicant also confirmed that he is. The Applicant signed in front of him and initialed each page. The witness would not make him sign if he was not the director. He signed various other documents in that capacity.
ROXANNE MITCHELL testified that she was with Merchant West in 2009. A11 was signed by the Applicant at UJ as district director. She completed the part with the date and capacity. They were supposed to meet in Tshwane but got a message to meet the Applicant at UJ. Tshwane was already filled in on the contract by that time. Kedibone signed at the district office. They went from UJ to the district office where she signed. During cross-examination she testified that she witnessed the Applicant signing it at UJ. They signed after he signed. The Applicant did not tell her himself that he is the district director. He signed other documents as director. The document was not blank, she completed it at the office, and that is why she wrote Tshwane, as they were going to meet there. They did not change it to UJ as they did not want to scratch out. They did not know at the time that Mathe was unreliable. They did have a letter in their possession where the Applicant signed as district director. The Applicant did not object to the capacity that was entered before he signed.
LEON KOTZE testified that in 2009 he was employed by Scifin as sales manager. John Mathe from ITEC indicted that the Applicant is the district director. When they met with the Applicant at the Dros he signed A20 in front of the witness. The Applicant did not enter the capacity. The Applicant took the document back to his department and a few days later Mathe brought the document back to them, signed by the CFO. All the documents they received previously stated that the Applicant was the district director. Mathe introduced him as the district director. Le Grange specifically asked the Applicant whether he was the correct party to sign, as it needs to be signed by the district director, and the Applicant confirmed. During cross-examination he testified that everybody presented the Applicant as the district director. He never objected or corrected it. Mathe introduced the Applicant as the district director. He would never have dealt with the Applicant if he knew he was not the district director. He never indicted he is the CES.
BILLY COETZEE testified that he was employed by Scifin in 2009 as the credit risk manager. They met with the Applicant at the Dros in Hatfield. Mathe introduced the Applicant as the district director. The Applicant did not say anything when he was introduced as such. The Applicant signed in front of them and took the documents with him. They were never informed he is the CES. Le Grange asked the Applicant if he is the right person, whether he is the district director and whether he was authorized to sign, and the Applicant responded by saying “yes”. If they knew he was the CES they would not have entered into the agreement as he would not have been authorized. During cross-examination he testified that the Applicant was with them at the Dros on 13 November 2009. He had a T-bone steak. He never denied it when Mathe introduced him as the district director.
LOURIKA BUCKLEY testified that she is a forensic handwriting examiner. She submitted her report as bundle C. It contains her qualifications and experience on page 14. She testified comprehensively as to the findings contained in her report which forms part of the record. During cross-examination she testified that she used 5 files of genuine signatures of the Applicant to compare the disputed signatures. There would always be a natural range of variation, it is human. The paraph at the end of his signature has a wide range of variation which is quite common. If someone attempts to imitate, it might look the same, but the person would not know where the pen usually starts. It would be difficult to get the size ratios of the loops correct, or the placement of the curves. It is unlikely to forge precisely. Her conclusions are based on all the signatures she examined and all the factors she took into account. It is not good practice to get a person to make signatures for purposes of the investigation. They use signatures produced in normal cause of business, which is the best signatures to use for comparison. She was not biased. She compared the disputed signatures with those hundreds of signatures in the 5 files which he signed during the course of his employment. With the exception of Q5, Q6 and Q13 all the signatures examined were produced by the Applicant. She used the standard method of comparison used by everybody in the industry. It is not advisable to use a signature obtained from a person that is being investigated, as he might try to change the manner of writing. It will not provide a true version of the signature.
THEA COETSER testified that she was a CES in 2009. The Applicant was her colleague. During August 2009 she was acting District Director. Mr. Makofane appointed her. The Applicant was not the district director. A principal wrote a letter to the acting director. She received calls from schools complaining. She received the documents signed by the Applicant guaranteeing payment. She wrote a memorandum to the schools putting the process on hold. The next day she had a visit from two men, one white and one black. They wanted to know why she put a hold on their program. She explained the rules to them. They were from ITEC. The complaints continued and she took it up with the Applicant. He said she should not worry it is under control. He said he will handle all queries. During cross-examination she testified that the Applicant signed as district director. It will be even worse if he signed blank documents. It does not matter whether one calls it a memorandum of agreement or understanding, the bottom line is he signed it.
KEDIBONE MORENI testified that she was a chief administration clerk in 2009. She reported to the Applicant. On 27 August 2009 people from ITEC came to her office and asked her sign the last page of a document. She refused. They said the Applicant said she must sign. She called the Applicant and he told her to sign. He said it is a minor document and she must sign it. She asked whether she would be in trouble if she signed and he said if there is any trouble he will be accountable. She signed on his instruction. He said she must give them a copy of Her ID document. She was hesitant to sign. During cross-examination she testified that she signed because the Applicant said she must. He did not take no for an answer. Ms. Lethlage was with her. He was her first boss and she thought that is how it is supposed to be. He kept on giving her reasons to sign. He convinced her by saying he will be accountable if there is trouble. She signed without reading as the Applicant told her what it is. The Applicant already signed it. Her evidence is not a fabrication. She was suspended but not charged for signing. No one told her what to testify.
JOHANNES HATTINGH testified that he is a forensic handwriting examiner. He submitted his report as bundle F. It contains his qualifications and experience on page 6. He testified comprehensively as to the findings contained in his report which forms part of the record. During cross-examination he testified that he received the specimen signatures from Mr. Mabule. A person could try and disguise requested specimens to try and avoid detection. He did not find such attempt in this case. The poor quality of some copied documents made examination difficult. It made it impossible to reach definite conclusions.
SUMMARY OF ARGUMENT
Both parties submitted extensive written closing arguments which forms part of the record. The arguments will therefore not be repeated here. I have perused and considered the contents of the arguments.
ANALYSIS OF EVIDENCE AND ARGUMENT
6.1 SUBSTANTIVE FAIRNESS OF THE DISMISSAL
In considering the substantive fairness of the dismissal of Mr. Hlatshwayo for misconduct, the principles contained in Schedule 2: Disciplinary Code and Procedures for Educators, promulgated in terms of the Employment of Educators Act, no. 76 of 1998, as well as the Code of Good Practice for Dismissals in Schedule 8 of the Labour Relations Act, no. 66 of 1995, provide the following guidelines:
Whether or not the accused employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
If the rule or standard was contravened, whether or not –
The rule was a valid or reasonable rule or standard;
The accused employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
The employer has consistently applied the rule or standard.
Dismissal was an appropriate sanction for the contravention of the rule or standard.
The dismissal of Mr. Hlatshwayo is not in dispute, and the Respondent is therefore required to prove that the dismissal was both substantively and procedurally fair. The standard of proof that is applicable in hearings of this nature is identical to the civil standard – “the employer must prove the case against the employee on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1.
6.1.1 WAS A RULE OR STANDARD REGULATING CONDUCT IN, OR OF RELEVANCE TO, THE WORKPLACE CONTRAVENED?
As stated above, the standard of proof that is applicable is identical to the civil standard – “the employer must prove the case against the employee on the balance of probabilities and not beyond reasonable doubt”.
Arbitration hearings are not merely reviews of the employer’s decision to dismiss employees, or the propriety of the procedures followed by the employer (John Grogan Dismissal 320 (2002)). An arbitration hearing constitutes a full rehearing on the merits plus an investigation of the fairness of the procedure followed by the employer. (See Gibb v Nedcor Ltd 1998 19 ILJ 364 (LC)). Arbitration amounts to a hearing de novo. The decision of the arbitrator is not reached with reference to the evidential material that was before the employer at the time of its enquiry, but on the evidential material placed before the arbitrator during the arbitration hearing. This means that all relevant evidence must be placed before the arbitrator in proper form, even if it has been fully canvassed at the employee’s disciplinary hearing. (See Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] JOL 20811 (CC), where the Court approved the LAC dictum in Count Fair Foods (Pty) Ltd v CCMA & Others [1999] 11 BLLR 1117 (LAC)). The arbitrator must hear all the evidence relating to the issue, and decide afresh on the facts found proved whether the employee committed the misconduct for which he was dismissed or not. If not, the arbitrator is bound to find that the dismissal was substantively unfair, even though the employer acted reasonably on the basis of information available to it at the time of the dismissal (John Grogan Dismissal 93 (2002)).
I accept that the memorandum of understanding and the memorandum of agreement in actual fact refers to the same document which the Applicant is alleged to have signed. The crux of the matter is whether he signed that document/s, and if so, in what capacity.
Even though the Respondent carries the onus of proof, it is notable that the Applicant did not testify, nor did he call any witnesses, except for a forensic handwriting examiner.
I accept the evidence of Makgabo, the investigator, that when he confronted the Applicant, he did not deny signing the documents. His evidence was not discredited at all. One would have expected the Applicant to deny it forthwith when confronted by the investigator, if he was innocent. That would be the probable action of a person that is wrongfully accused. His version that he signed a blank document is improbable. A person of his experience and seniority would surely know that is unacceptable. The UJ meeting refutes his version of signing a blank document. If the document was blank, the witnesses would surely have entered the venue as UJ, and not Tshwane, as they would have had the opportunity to do so. The witnesses have no reason to falsely accuse the Applicant. They confirmed with him whether he is the right person to sign, and whether he is the district director. He said he was. It is improbable that they would have gone ahead with the signing unless the Applicant indeed confirmed such. The undisputed evidence is that they deal with State institutions on a regular basis, and would therefor know which person has to sign in order to make an agreement binding. It is improbable that they would go through such exercise just to end up with an invalid agreement. I accept the evidence on a balance of probabilities that the Applicant did present himself and signed as the district director in all those alleged instances. There is no evidence from the Applicant to refute their version. Even if the perception was created by another person through introduction, the Applicant had a duty to correct it, and by not doing so silently created the impression that he was the district director. Even if the capacity was not entered by him, he similarly had the duty to correct it when he signed the documents.
There are two conflicting expert reports, but I find sufficient direct corroborating probable evidence to sway me to accept the Respondent’s evidence in respect of the handwriting on a balance of probabilities.
Kedibone Moreni has no reason to falsely accuse the Applicant. I accept her evidence that she only signed because the Applicant exerted undue influence on her. There is no evidence from the Applicant to refute her version. I find no substance in the allegation that her version is a fabrication and a lie. I can find no probable motive for the witnesses to fabricate evidence and lie at the arbitration hearing. The Applicant did not provide any probable evidence that would support such notion.
I find that it was proven on balance of probabilities that the Applicant committed the misconduct as alleged in allegation 1, 2, 3, 5 and 6. There is therefore evidence before me that proves that Mr. Hlatshwayo contravened a rule or standard regulating conduct in, or of relevance to, the workplace.
6.1.2 WAS THE RULE A VALID OR REASONABLE RULE?
Considering the nature of the employer’s business, the circumstances in which it operates, the type of work performed by the employee and the environment in which the work is performed, it is accepted that the rules are valid, i.e. lawful and reasonable. It is reasonable to expect educators to refrain from being dishonest, and form exerting undue influence on subordinates. It has also been specifically prohibited by legislation. There is no evidence that the rules had been abrogated by disuse because the employer had not relied on it for some time.
WAS THE ACCUSED EMPLOYEE AWARE, OR COULD HE REASONABLY BE EXPECTED TO HAVE BEEN AWARE, OF THE RULE?
What is required by the provisions of paragraph 7 of Schedule 8 for a dismissal for misconduct to be fair is that “the employee was aware or could be reasonably expected to have been aware of the rule or standard”. The offences the employee has been charged with appears in the Disciplinary Code of the employer as well as the Employment of Educators Act, no. 76 of 1998. The Applicant did not place knowledge of the rules in dispute.
6.1.4 HAS THE RULE BEEN CONSISTENTLY APPLIED BY THE EMPLOYER?
There is no evidence of inconsistent and arbitrary action on the part of the employer in this matter. There is no evidence that the employer has habitually or frequently condoned similar offences in the past. There is also no evidence that the employer’s standards differ materially from those applied by other employers. The Applicant has not raised inconsistent application by the employer of the rule as an issue in dispute.
6.1.5 WAS DISMISSAL AN APPROPRIATE SANCTION FOR THE CONTRAVENTION OF THE RULE?
In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness.
The Respondent has argued that dismissal is appropriate taking into account the nature of the transgressions. It is therefore necessary to consider whether dismissal would be an appropriate sanction, and whether a lesser sanction would serve the desired purpose. In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness. The case of Sidumo v Rustenburg Platinum Mines Ltd [2007] 28 ILJ 2405 (CC) dealt with the scope of commissioners powers when deciding whether the sanction of dismissal for proven misconduct is fair. The final decision whether the sanction of dismissal for proven misconduct is appropriate rests with the commissioner. I must therefore as impartial adjudicator consider all relevant circumstances in deciding whether the dismissal of the Applicant was the appropriate sanction initially.
The Code of Good Conduct: Dismissal, states that one of the requirements of a fair dismissal for misconduct is that the dismissal must be an “appropriate” remedy, in the light of the facts of the case.
In an earlier dictum of Conradie JA a similar approach was also followed when the court pronounced that -:
“A dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise.”. The courts have accepted that the ultimate justification for employers’ power to impose discipline flows from their right to manage their business effectively. (See De Beers Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC)).
It is well established that the relationship between employer and employee is in essence one of trust and confidence and that, at common law, conduct clearly inconsistent therewith entitles the “innocent” party to cancel the agreement (See Angehrn and Piel v Federal Cold Storage Co Ltd 1908 TS 761 at 777–778.).
The conduct of Mr. Hlatshwayo was dishonest. The Labour Appeal Court had this to say about the effect of dishonesty by an employee on the employment relationship in Anglo American Farms t/a Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC): “This trust which the employer places in the employee is basic to and forms the substratum of the relationship between them. A breach of this duty goes to the root of the contract of employment and of the relationship between employer and employee.”.
Dismissal is generally justified in all cases of serious dishonesty, not merely those in which employees enrich themselves materially at the expense of their employer – John Grogan, Workplace Law, 10th Edition. Dismissal is an appropriate sanction when the offence involves dishonesty, even in the case of a first-time offender. See Pillay v C G Smith Sugar Ltd (1985) 6 ILJ 530 (IC) at 538 G.
According to John Grogan, Dismissal, 2002, an employer generally would have two reasons for wanting to get rid of a dishonest employee – one is that the employee can no longer be trusted, and the other is the need to send a signal to other employees that dishonesty will not be tolerated. The latter relates to the deterrence theory of punishment.
The employee’s actions were of such a nature that it surely will have a negative impact on the trust relationship. The Applicant was dishonest and his actions incurred liability which resulted in huge financial losses for the employer. I had due regard to the principles set out in the case of Edcon Ltd v Pillemer NO & others [2010] 1 BLLR 1 (SCA) which underlines the principle that the employer has the burden of proof to show that the trust relationship has broken down irretrievably. The evidence shows that the trust has been broken down irretrievably, and leaves no option for the application of progressive discipline. The labour courts have held that the destruction of the relationship of trust is the ultimate justification for a dismissal. (See Council for Scientific & Industrial Research v Fijen [1996] 6 BLLR 685 (AD); Lahee Park Club v Garrat [1997] 9 BLLR 1137 (LAC)).
Section 18(5)(a) of the Employment of Educators Act states that an educator may be dismissed if found guilty of dishonesty. Having considered all the facts before me, including but not limited to, the gravity of the offence, the position of trust the Applicant was employed in, and the years of service of the Applicant I am of the opinion that the sanction of dismissal is fair and appropriate in the circumstances.
6.2 PR0CEDURAL FAIRNESS OF THE DISMISSAL
Section 188 of the Labour Relations Act, 66 of 1995, confirms that procedural fairness is an independent requirement for a fair dismissal. In considering the procedural fairness of the dismissal of Mr. Hlatshwayo for misconduct, the principles contained in item 4 of Schedule 8 ― The Code of Good Practice: Dismissal of the Labour Relations Act, 66 of 1995, is followed. Stricter standards are also applied to large employers than are expected of smaller employers.
Schedule 2: Disciplinary Code and Procedures for Educators, promulgated in terms of the Employment of Educators Act, no. 76 of 1998, states that discipline must be applied in a prompt, fair, consistent and just manner.
I find no substance in the allegations of procedural unfairness. The Applicant presented no evidence in respect of the alleged bias of the chairperson of the disciplinary hearing, or the alleged breach of stipulated timeframes.
7 AWARD
I find that the dismissal of Mr. Hlatshwayo was for a fair reason related to his conduct, and that the dismissal was effected in accordance with a fair procedure. He is not entitled to any relief.
No order is made as to costs.
COEN HAVENGA
ARBITRATOR
22 November 2013