PSES 251-12/13 FS
PSES 251-12/13 FS
Award Date:
19 March 2013
Case Number: PSES 251-12/13 FS
Province: Free State
Applicant: Peyper Sesele Inc obo D Jordaan
Respondent: Department of Education, Free State
Issue: Unfair Dismissal - Misconduct
Venue: Sasolburg
Award Date: 19 March 2013
Arbitrator: Yusuf Nagdee
IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT SASOLBURG
CASE NO: PSES 251-12/13 FS
In the matter between:
PEYPER SESELE INC obo D. JORDAAN Applicant
and
FREE STATE DEPARTMENT OF EDUCATION Respondent
ARBITRATION AWARD
1. DETAILS OF HEARING AND REPRESENTATION
1.1 An arbitration hearing was scheduled for the 15th March 2013 at Fezila Dabi Education District, Sasolburg. The Applicant was represented by Attorney J.H. Peyper of Peyper Sesele Attorneys. The Respondent was represented by Mr P.J. Masihleho of the FSDOE;
1.2 At the commencement of the arbitration proceedings, the parties agreed to a common set of facts. The parties also agreed on the methodology for the conduct of the arbitration. It was agreed that the Applicant would present evidence in mitigation and evidence in aggravation would be presented by the Respondent;
2. ISSUES TO BE DECIDED
The issue to be decided is whether the sanction of dismissal was appropriate.
3. AGREED SET OF FACTS
The following facts were common cause:
“1. Applicant in this matter was appointed as a marker for the Matriculation Accounting examination paper for the period November/December 2010;
2. Applicant’s son (Ben Jordaan) was one of the candidates enrolled to sit for examination during the period mentioned in paragraph 1 above and his paper was accordingly to be examined;
3. The Applicant acquired an examination paper (Accounting Answer book) hereinafter referred to as an extra answer book from another school in Bothaville that had been written the previous week on Wednesday and caused her son to rewrite this question paper during the weekend;
4. The Applicant while performing her duties as a Marker at the marking centre in Parys, took in with her extra answer book of his son with the intention to swap it with the original answer book;
5. The Applicant while performing her marking duties recollected her thoughts and decided not to swap the answer books, where after she left the marking centre with the extra answer book concealed under her clothes;
6. Applicant was then caught by the Security Officer while on her way out of the centre with the extra answer book and told the Security Officer that she wants to destroy the Answer Book;
7. Applicant on the instruction of the Security Officer went back into the marking centre and put the extra answer book with the rest of the four answer books;
8. Applicant realized that there were five answer books instead of four, and went back out of her own volition to remove one of her sons answer books;
9. It is at this stage when Applicant removed the extra answer book from the pile of the four answer books and the one without a barcode in the pile.”
4. EVIDENCE IN MITIGATION
The Applicant testified, inter alia, as follows:
4.1 She was a teacher at Viljoenskroon for 30 years. She had the highest average in accountancy several times. Her learners performed the best;
4.2 Reference was made to a letter from the Principal of Hoerskool Standerton wherein it was requested that a release form be issued by the Free State Department so that she could be appointed departmentally;
4.3 She has been a Marker for 27 years. She is the first women to mark in the Free State. To achieve results she had extra classes. Her husband told her that she is married to the school. She was never at home. She has two sons;
4.4 Her husband broke all contact with her. He re-married and she had to take care of the 2 children;
4.5 Her son, Ben was one of the top 10 students in Grade 11, he did power lifting and played Craven Rugby;
4.6 The local Dominee’s wife on a particular day collided with her son who was on a bike. He bumped his head and sustained serious injuries. He was in a coma in Milpark for a period of 6 months and had to undergo rehabilitation for 3 months;
4.7 He wrote matric in 2009. He passed matric except for accounting. He was intent on passing accounting and in 2010 he registered to write. She told him to leave it;
4.8 He wrote the exam and informed her he left out a few questions and did not think he would pass. She was concerned because he threatened to shoot himself. He redid the paper at home and she marked it;
4.9 She endured psychological pressure. She had to make a choice between her son’s life and his wish. She decided not to do it and considered whether she should change the paper or not. She had the paper in her car. She placed it in her handbag and then into her lap in the exam room. She considered what if he committed suicide;
4.10 She walked out of the exam hall and considered tearing it. Security stopped her and told her not to destroy the paper;
4.11 She has 3 years before she goes on pension. She is 57 years old and a single parent;
4.12 She lives in a hostel in Standerton with her son. Her other son is in Potchefstroom University. Her ex-husband is not maintaining them;
5. EVIDENCE IN AGGRAVATION
EVIDENCE OF MR KIESSE
5.1 He is the Principal of Solomon Senekal. He worked for some 30 years with the Applicant and 6 years as the Principal. He has a good relationship with his colleagues;
5.2 If any staff acted incorrectly he would raise it with them. There were some incidents with the Applicant. She interfered and did not mind her own business. She helped a child in Grade 11 with the accounting paper;
5.3 He could not trust the Applicant;
5.4 There were other irregularities but he had no evidence. The SGB would not put her back;
5.5 In cross-examination it was put to the witness that he had no proof of
irregularities. The witness confirmed this, save for the one incident. He also confirmed she had a clean record;
5.6 It was put to the witness why the Applicant had not been suspended. Why had she been allowed to continue teaching? The witness stated he did not have an accounting teacher and he did not have powers to dismiss;
5.7 She could not be trusted. She went behind his back and approached the Standerton Principal for a position;
6. CLOSING SUBMISSIONS
The Applicant’s Attorney submitted as follows:
6.1 She is an excellent teacher that produced fine results. The ban should be lifted by re-employing her. She gave her life to teaching and the mitigating factors presented were extreme;
6.2 What she did by taking the paper out of the exam room was morally wrong but not misconduct. She was told to place the document on the pile;
6.3 She panicked and was under immense pressure. It was actually an act of God;
7. RESPONDENT’S SUBMISSIONS
7.1 This was no coincidence, she had an intention to achieve an outcome;
7.2 The conduct had an adverse effect on the integrity of examiners who set exams, moderate and mark;
7.3 Section 17 of the Educators makes dismissal mandatory;
7.4 Reference was made to the decision of the SCA Edcon v Pillemer, which provides that evidence of dishonesty should be presented;
7.5 The relationship had broken down irretrievably;
8. ANALYSIS OF EVIDENCE AND SUBMISSIONS
8.1 The evidence presented and submissions made were carefully considered. The issue to be decided was the appropriateness of the sanction. The evidence does demonstrate that there are strong mitigating factors in that she has long service and personal circumstances were extraordinary. However the Applicant is a Senior
person an examiner of many years. Her long service in these circumstances is in fact an aggravating factor. To say that no misconduct took place when she removed the exam paper to destroy it, does not assist the Applicant. The documentation presented to her to sign when she accepted the appointment to mark sets out stringent conditions. One of these is not to remove exam material from the marking room without authority. Clearly by bringing in an additional exam this paper compromised the integrity of the exam system and the administration of marking;
8.2 Her explanation that nobody reads this document does not assist her. She is a Senior teacher with many years of teaching exercise. Clearly she had to adhere to the terms and conditions;
8.3 A report prepared by an examiner also reflected that the performance of the candidate in the first three questions was excellent. On a balance of probabilities the Applicant assisted her son and it was her intention to substitute the exam paper;
8.4 The evidence was that she helped another Grade 11 learner previously. In the circumstances while I have sympathy for her personal situation, I am not convinced that a lesser sanction is appropriate. The offence in question provides for a mandatory dismissal. This factor should be not ignored;
8.5 The Applicant could have raised the issue with a Senior. She in fact compounds the misconduct by placing the script without the barcode into the batch and removes the actual. This exam paper is a further aggravating factor;
9. AWARD
Having regard to the above, I do not find grounds to interfere with the sanction. Accordingly the following Order is made:
9.1 The dismissal is substantively fair;
9.2 The application is dismissed.
DATED AT JOHANNESBURG ON THIS THE _19TH DAY OF MARCH 2013.
YUSUF NAGDEE
ARBITRATOR
Province: Free State
Applicant: Peyper Sesele Inc obo D Jordaan
Respondent: Department of Education, Free State
Issue: Unfair Dismissal - Misconduct
Venue: Sasolburg
Award Date: 19 March 2013
Arbitrator: Yusuf Nagdee
IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT SASOLBURG
CASE NO: PSES 251-12/13 FS
In the matter between:
PEYPER SESELE INC obo D. JORDAAN Applicant
and
FREE STATE DEPARTMENT OF EDUCATION Respondent
ARBITRATION AWARD
1. DETAILS OF HEARING AND REPRESENTATION
1.1 An arbitration hearing was scheduled for the 15th March 2013 at Fezila Dabi Education District, Sasolburg. The Applicant was represented by Attorney J.H. Peyper of Peyper Sesele Attorneys. The Respondent was represented by Mr P.J. Masihleho of the FSDOE;
1.2 At the commencement of the arbitration proceedings, the parties agreed to a common set of facts. The parties also agreed on the methodology for the conduct of the arbitration. It was agreed that the Applicant would present evidence in mitigation and evidence in aggravation would be presented by the Respondent;
2. ISSUES TO BE DECIDED
The issue to be decided is whether the sanction of dismissal was appropriate.
3. AGREED SET OF FACTS
The following facts were common cause:
“1. Applicant in this matter was appointed as a marker for the Matriculation Accounting examination paper for the period November/December 2010;
2. Applicant’s son (Ben Jordaan) was one of the candidates enrolled to sit for examination during the period mentioned in paragraph 1 above and his paper was accordingly to be examined;
3. The Applicant acquired an examination paper (Accounting Answer book) hereinafter referred to as an extra answer book from another school in Bothaville that had been written the previous week on Wednesday and caused her son to rewrite this question paper during the weekend;
4. The Applicant while performing her duties as a Marker at the marking centre in Parys, took in with her extra answer book of his son with the intention to swap it with the original answer book;
5. The Applicant while performing her marking duties recollected her thoughts and decided not to swap the answer books, where after she left the marking centre with the extra answer book concealed under her clothes;
6. Applicant was then caught by the Security Officer while on her way out of the centre with the extra answer book and told the Security Officer that she wants to destroy the Answer Book;
7. Applicant on the instruction of the Security Officer went back into the marking centre and put the extra answer book with the rest of the four answer books;
8. Applicant realized that there were five answer books instead of four, and went back out of her own volition to remove one of her sons answer books;
9. It is at this stage when Applicant removed the extra answer book from the pile of the four answer books and the one without a barcode in the pile.”
4. EVIDENCE IN MITIGATION
The Applicant testified, inter alia, as follows:
4.1 She was a teacher at Viljoenskroon for 30 years. She had the highest average in accountancy several times. Her learners performed the best;
4.2 Reference was made to a letter from the Principal of Hoerskool Standerton wherein it was requested that a release form be issued by the Free State Department so that she could be appointed departmentally;
4.3 She has been a Marker for 27 years. She is the first women to mark in the Free State. To achieve results she had extra classes. Her husband told her that she is married to the school. She was never at home. She has two sons;
4.4 Her husband broke all contact with her. He re-married and she had to take care of the 2 children;
4.5 Her son, Ben was one of the top 10 students in Grade 11, he did power lifting and played Craven Rugby;
4.6 The local Dominee’s wife on a particular day collided with her son who was on a bike. He bumped his head and sustained serious injuries. He was in a coma in Milpark for a period of 6 months and had to undergo rehabilitation for 3 months;
4.7 He wrote matric in 2009. He passed matric except for accounting. He was intent on passing accounting and in 2010 he registered to write. She told him to leave it;
4.8 He wrote the exam and informed her he left out a few questions and did not think he would pass. She was concerned because he threatened to shoot himself. He redid the paper at home and she marked it;
4.9 She endured psychological pressure. She had to make a choice between her son’s life and his wish. She decided not to do it and considered whether she should change the paper or not. She had the paper in her car. She placed it in her handbag and then into her lap in the exam room. She considered what if he committed suicide;
4.10 She walked out of the exam hall and considered tearing it. Security stopped her and told her not to destroy the paper;
4.11 She has 3 years before she goes on pension. She is 57 years old and a single parent;
4.12 She lives in a hostel in Standerton with her son. Her other son is in Potchefstroom University. Her ex-husband is not maintaining them;
5. EVIDENCE IN AGGRAVATION
EVIDENCE OF MR KIESSE
5.1 He is the Principal of Solomon Senekal. He worked for some 30 years with the Applicant and 6 years as the Principal. He has a good relationship with his colleagues;
5.2 If any staff acted incorrectly he would raise it with them. There were some incidents with the Applicant. She interfered and did not mind her own business. She helped a child in Grade 11 with the accounting paper;
5.3 He could not trust the Applicant;
5.4 There were other irregularities but he had no evidence. The SGB would not put her back;
5.5 In cross-examination it was put to the witness that he had no proof of
irregularities. The witness confirmed this, save for the one incident. He also confirmed she had a clean record;
5.6 It was put to the witness why the Applicant had not been suspended. Why had she been allowed to continue teaching? The witness stated he did not have an accounting teacher and he did not have powers to dismiss;
5.7 She could not be trusted. She went behind his back and approached the Standerton Principal for a position;
6. CLOSING SUBMISSIONS
The Applicant’s Attorney submitted as follows:
6.1 She is an excellent teacher that produced fine results. The ban should be lifted by re-employing her. She gave her life to teaching and the mitigating factors presented were extreme;
6.2 What she did by taking the paper out of the exam room was morally wrong but not misconduct. She was told to place the document on the pile;
6.3 She panicked and was under immense pressure. It was actually an act of God;
7. RESPONDENT’S SUBMISSIONS
7.1 This was no coincidence, she had an intention to achieve an outcome;
7.2 The conduct had an adverse effect on the integrity of examiners who set exams, moderate and mark;
7.3 Section 17 of the Educators makes dismissal mandatory;
7.4 Reference was made to the decision of the SCA Edcon v Pillemer, which provides that evidence of dishonesty should be presented;
7.5 The relationship had broken down irretrievably;
8. ANALYSIS OF EVIDENCE AND SUBMISSIONS
8.1 The evidence presented and submissions made were carefully considered. The issue to be decided was the appropriateness of the sanction. The evidence does demonstrate that there are strong mitigating factors in that she has long service and personal circumstances were extraordinary. However the Applicant is a Senior
person an examiner of many years. Her long service in these circumstances is in fact an aggravating factor. To say that no misconduct took place when she removed the exam paper to destroy it, does not assist the Applicant. The documentation presented to her to sign when she accepted the appointment to mark sets out stringent conditions. One of these is not to remove exam material from the marking room without authority. Clearly by bringing in an additional exam this paper compromised the integrity of the exam system and the administration of marking;
8.2 Her explanation that nobody reads this document does not assist her. She is a Senior teacher with many years of teaching exercise. Clearly she had to adhere to the terms and conditions;
8.3 A report prepared by an examiner also reflected that the performance of the candidate in the first three questions was excellent. On a balance of probabilities the Applicant assisted her son and it was her intention to substitute the exam paper;
8.4 The evidence was that she helped another Grade 11 learner previously. In the circumstances while I have sympathy for her personal situation, I am not convinced that a lesser sanction is appropriate. The offence in question provides for a mandatory dismissal. This factor should be not ignored;
8.5 The Applicant could have raised the issue with a Senior. She in fact compounds the misconduct by placing the script without the barcode into the batch and removes the actual. This exam paper is a further aggravating factor;
9. AWARD
Having regard to the above, I do not find grounds to interfere with the sanction. Accordingly the following Order is made:
9.1 The dismissal is substantively fair;
9.2 The application is dismissed.
DATED AT JOHANNESBURG ON THIS THE _19TH DAY OF MARCH 2013.
YUSUF NAGDEE
ARBITRATOR