PSES 191 10/11 KZN
PSES 191 10/11 KZN
Award Date:
9 February 2011
Case Number: PSES 191 10/11 KZN
Province: KwaZulu-Natal
Applicant: NATU obo Z.W. Nyandeni
Respondent: Department of Education, KwaZulu-Natal
Issue: Unfair Dismissal - Misconduct
Venue: Vryheid
Award Date: 9 February 2011
Arbitrator: S McGladdery
EDUCATION LABOUR RELATIONS COUNCIL
Panelist : S. McGladdery
Case Number : PSES 191 10/11 KZN
Date of Ruling : 09 February 2011
In the ARBITRATION between:
NATU obo Z.W. Nyandeni (Union/Applicant)
and
KWAZULU-NATAL DEPT OF EDUCATION
(Respondent)
Union/Applicant’s representative : M.T. Gasa
Union/Applicant’s address :
Union/Applicant’s Telephone No’s : 035 7721608
Union/Applicant’s Fax No’s : 035 7721651
Respondent’s representative : I. Pillay
Respondent’s address :
Respondent’s Telephone No’s : 033 8465411
Respondent’s Fax No’s : 033 846 5462
DETAILS OF HEARING AND REPRESENTATION
This matter was held on 31 January 2011 in Vryheid. The applicant was represented by Mr M.T. Gasa, a NATU official while the respondent was represented by Mr I. Naidoo, a departmental official. The matter concluded on the day.
RESPONDENT’S OPENING STATEMENT
Respondent submitted that it had employed the applicant. It was discovered that she had submitted a fraudulent Diploma in Education from UPE. An investigation was conducted in January 2010 which revealed that the applicant’s certificate and fifty others were fraudulent. The University of Port Elizabeth, now Nelson Mandela metro University denied that the applicant was ever registered there.
The applicant had been interviewed and had failed to provide a statement of results from the institution or a valid certificate. She had conceded that the one she submitted was false. At a disciplinary hearing held, she had pleaded guilty and was dismissed.
APPLICANT’S OPENING STATEMENT
Applicant submitted that she had been treated unfairly. She had been studying at Wits and has other qualifications. Educators are scarce and it is thus unfair to dismiss them. At the hearing, the procedural aspects were correctly dealt with, but the hearing had started early without her representative present.
Applicant submitted that she would submit certificates to show that she was a qualified educator. She prayed for reinstatement.
RESPONDENT’S CASE
The first witness for the respondent was Miss BATHO MKHIZE who testified that:
She was employed by the respondent in its Internal Control Division where she was involved in handling internal audits and verifying qualifications. The former Superintendent – General had instructed them to do an investigation into the Obonjeni District because of the low Grade twelve pass rate there and had specifically instructed them to verify the authenticity of the qualifications of the educators.
They had noticed a suspiciously large number of qualifications from UPE which were unusual in that they were issued in March 2003 and some had the same numbers, names and dates, but with differing fonts.
A report in respect of the applicant’s alleged fraudulent certificate was as per Pg 15 of the bundle and reflects that as a result of the fake certificate, applicant was moved from the notch R49990 to R62964 p.a. Her actions were considered as serious in that they amounted to misrepresentation, causing financial prejudice to the respondent, as well as other costs incurred in the processing of disciplinary action and defending the arbitration. There were approximately fifty two others investigated along with the applicant. She was not aware of the sanctions meted out in those instances.
Under cross examination she testified that:
She had five years’ service with the respondent and had dealt with similar cases involving qualifications from UKZN. Although she could not differentiate between the different fonts as to which was the correct one, it was this difference that raised suspicions which is why further investigations into authenticity were undertaken.
An educator had confessed to purchasing such a certificate which is why the head of department extended the scope of the investigation. Random educators were drawn to be investigated. The applicant had been visited an questioned by Mr Zulu. Letters were written before hand for each educator that was investigated in order to give them notice.
She had not consulted with the department regarding the applicants other valid qualifications as UPE was not a departmental institution and thus they had to verify the qualification. The closed colleges were fell under the department. If applicant had valid qualifications where the records were kept by the national department, she should have brought that evidence to the hearing. That the hearing supposedly started early, the applicant should have objected. It also did not explain why she pleaded guilty if she believed she was not.
APPLICANT’S CASE
The first witness for the applicant was ZANELE NYANDENI who testified that:
She had studied at Lyceum College and done a certificate at RAU, as well as PTC M+1 and M+2. She had spent two years at Lyceum College and after that did a diploma at UPE which she obtained. She had also studied through UNISA and Unizul, doing an ABET course at UNISA.
She had registered at UPE in 2001 and obtained her certificate in 2003. At Unizul she had done a certificate in advanced maths and science.
On the day of the hearing, she had arrived at 09:00 and waited outside the venue. She was then asked to enter. She had told those present that she was waiting for her representative. They had asked if she was prepared to start early to which she had agreed. She had been asked to plead and she had pleaded guilty. The presiding officer had then pronounced her guilty.
Under cross examination she testified that :
When she had gone into the hearing, the notice of the hearing and her rights were read to her. She had been advised of her right to a representative but she had told them she was waiting for her representative.
She conceded that she did not have a statement of results and nor did she attempt to get someone from UPE to testify as to the authenticity of her certificate.
ANALYSIS OF EVIDENCE AND ARGUMENT
Both parties submitted verbal submissions in respect of closing arguments which I have taken into account.
The essence of the applicant’s defence rests on two legs. Firstly, a procedural one in that she contends that the hearing started early before her representative was present. Secondly, she contests that she has other valid qualifications.
On issues of procedure
In this regard, applicant conceded under cross examination that she received a notice to attend the hearing and that her rights were read out to her at the commencement of proceedings. That the proceedings seemingly started earlier than schedule, was, on the applicants own version, with her consent. She was aware that she was entitled to a representative and it is improbable that she would have agreed to proceed and waived her right to representation against her will. The applicant did not strike me as someone unaware of her situation and would have understood her rights. The better version that presents itself to me as being the most likely is that from the onset the applicant was aware that she would be pleading guilty and thus accommodated the supposed request to start early. Applicant could have objected or disagreed to the request and required that the matter stand down until her representative arrived. She did not do so.
Consequently I am not of the mind that there has been any procedural irregularities during the hearing process.
On issues of substance
Notwithstanding her plea of guilty at the disciplinary hearing, applicant has attempted a somewhat last gasp and flimsy attempt to testify that she indeed does have a qualification from UPE. It did not take much under cross examination for her to concede that she could not produce a statement of results. Had her qualification indeed been valid, she ought to have been able to produce such a statement. Her response was that the university could not find her name in their records. She gave no indication at being upset or annoyed at this. One would expect a reasonable person in her position to have been somewhat indignant at this and have pursued the matter, given the predicament it has placed her in. The most likely version is that the university does not have the results because she did not qualify there.
The question that remains then is whether the sanction of dismissal is appropriate.
Respondent has argued that it places a premium on honesty and unqualified educators cause great harm to educators and is a risk which it is obligated to eradicate. Children have the right to be taught by a qualified educator. It also argued that it has consistently applied the sanction of dismissal for such an offence. Applicant’s guilt is not in question and I can find little to mitigate against upholding the sanction of dismissal. It cannot be said that the applicant had merely made an error of judgment. Her actions where pre determined and made with the specific intent of trying to obtaining some financial benefit which she ordinarily would not have been entitled to. Respondent submitted that the amount involved was some R270 000 that the applicant had been paid over time and to which she was not entitled to. Even though it was argued by the applicant that she now had valid qualifications, that is irrelevant. She made a deliberate and fraudulent misrepresentation with the deliberate purpose of fooling her employer. From the start, applicant set out to deceive her employer. Nothing can detract from the seriousness of that and respondent has justifiably considered applicant’s dishonesty to be serious enough to have irreparably damaged the trust relationship. As an employer, it has the prerogative to set standards of conduct for its employees and to decided on the proper sanction if that standard is transgressed. Respondent has persistently taken a tough line against educators who have submitted fake or false educational qualifications and the commission of the offence has been proved, and I accordingly cannot find that the dismissal is not for a fair reason.
AWARD
1. The application is dismissed. The dismissal of the applicant is found to be procedurally and substantively fair.
2. There is no order as to costs.
________________________________
Panelist:
O9 – 02 - 2011
Province: KwaZulu-Natal
Applicant: NATU obo Z.W. Nyandeni
Respondent: Department of Education, KwaZulu-Natal
Issue: Unfair Dismissal - Misconduct
Venue: Vryheid
Award Date: 9 February 2011
Arbitrator: S McGladdery
EDUCATION LABOUR RELATIONS COUNCIL
Panelist : S. McGladdery
Case Number : PSES 191 10/11 KZN
Date of Ruling : 09 February 2011
In the ARBITRATION between:
NATU obo Z.W. Nyandeni (Union/Applicant)
and
KWAZULU-NATAL DEPT OF EDUCATION
(Respondent)
Union/Applicant’s representative : M.T. Gasa
Union/Applicant’s address :
Union/Applicant’s Telephone No’s : 035 7721608
Union/Applicant’s Fax No’s : 035 7721651
Respondent’s representative : I. Pillay
Respondent’s address :
Respondent’s Telephone No’s : 033 8465411
Respondent’s Fax No’s : 033 846 5462
DETAILS OF HEARING AND REPRESENTATION
This matter was held on 31 January 2011 in Vryheid. The applicant was represented by Mr M.T. Gasa, a NATU official while the respondent was represented by Mr I. Naidoo, a departmental official. The matter concluded on the day.
RESPONDENT’S OPENING STATEMENT
Respondent submitted that it had employed the applicant. It was discovered that she had submitted a fraudulent Diploma in Education from UPE. An investigation was conducted in January 2010 which revealed that the applicant’s certificate and fifty others were fraudulent. The University of Port Elizabeth, now Nelson Mandela metro University denied that the applicant was ever registered there.
The applicant had been interviewed and had failed to provide a statement of results from the institution or a valid certificate. She had conceded that the one she submitted was false. At a disciplinary hearing held, she had pleaded guilty and was dismissed.
APPLICANT’S OPENING STATEMENT
Applicant submitted that she had been treated unfairly. She had been studying at Wits and has other qualifications. Educators are scarce and it is thus unfair to dismiss them. At the hearing, the procedural aspects were correctly dealt with, but the hearing had started early without her representative present.
Applicant submitted that she would submit certificates to show that she was a qualified educator. She prayed for reinstatement.
RESPONDENT’S CASE
The first witness for the respondent was Miss BATHO MKHIZE who testified that:
She was employed by the respondent in its Internal Control Division where she was involved in handling internal audits and verifying qualifications. The former Superintendent – General had instructed them to do an investigation into the Obonjeni District because of the low Grade twelve pass rate there and had specifically instructed them to verify the authenticity of the qualifications of the educators.
They had noticed a suspiciously large number of qualifications from UPE which were unusual in that they were issued in March 2003 and some had the same numbers, names and dates, but with differing fonts.
A report in respect of the applicant’s alleged fraudulent certificate was as per Pg 15 of the bundle and reflects that as a result of the fake certificate, applicant was moved from the notch R49990 to R62964 p.a. Her actions were considered as serious in that they amounted to misrepresentation, causing financial prejudice to the respondent, as well as other costs incurred in the processing of disciplinary action and defending the arbitration. There were approximately fifty two others investigated along with the applicant. She was not aware of the sanctions meted out in those instances.
Under cross examination she testified that:
She had five years’ service with the respondent and had dealt with similar cases involving qualifications from UKZN. Although she could not differentiate between the different fonts as to which was the correct one, it was this difference that raised suspicions which is why further investigations into authenticity were undertaken.
An educator had confessed to purchasing such a certificate which is why the head of department extended the scope of the investigation. Random educators were drawn to be investigated. The applicant had been visited an questioned by Mr Zulu. Letters were written before hand for each educator that was investigated in order to give them notice.
She had not consulted with the department regarding the applicants other valid qualifications as UPE was not a departmental institution and thus they had to verify the qualification. The closed colleges were fell under the department. If applicant had valid qualifications where the records were kept by the national department, she should have brought that evidence to the hearing. That the hearing supposedly started early, the applicant should have objected. It also did not explain why she pleaded guilty if she believed she was not.
APPLICANT’S CASE
The first witness for the applicant was ZANELE NYANDENI who testified that:
She had studied at Lyceum College and done a certificate at RAU, as well as PTC M+1 and M+2. She had spent two years at Lyceum College and after that did a diploma at UPE which she obtained. She had also studied through UNISA and Unizul, doing an ABET course at UNISA.
She had registered at UPE in 2001 and obtained her certificate in 2003. At Unizul she had done a certificate in advanced maths and science.
On the day of the hearing, she had arrived at 09:00 and waited outside the venue. She was then asked to enter. She had told those present that she was waiting for her representative. They had asked if she was prepared to start early to which she had agreed. She had been asked to plead and she had pleaded guilty. The presiding officer had then pronounced her guilty.
Under cross examination she testified that :
When she had gone into the hearing, the notice of the hearing and her rights were read to her. She had been advised of her right to a representative but she had told them she was waiting for her representative.
She conceded that she did not have a statement of results and nor did she attempt to get someone from UPE to testify as to the authenticity of her certificate.
ANALYSIS OF EVIDENCE AND ARGUMENT
Both parties submitted verbal submissions in respect of closing arguments which I have taken into account.
The essence of the applicant’s defence rests on two legs. Firstly, a procedural one in that she contends that the hearing started early before her representative was present. Secondly, she contests that she has other valid qualifications.
On issues of procedure
In this regard, applicant conceded under cross examination that she received a notice to attend the hearing and that her rights were read out to her at the commencement of proceedings. That the proceedings seemingly started earlier than schedule, was, on the applicants own version, with her consent. She was aware that she was entitled to a representative and it is improbable that she would have agreed to proceed and waived her right to representation against her will. The applicant did not strike me as someone unaware of her situation and would have understood her rights. The better version that presents itself to me as being the most likely is that from the onset the applicant was aware that she would be pleading guilty and thus accommodated the supposed request to start early. Applicant could have objected or disagreed to the request and required that the matter stand down until her representative arrived. She did not do so.
Consequently I am not of the mind that there has been any procedural irregularities during the hearing process.
On issues of substance
Notwithstanding her plea of guilty at the disciplinary hearing, applicant has attempted a somewhat last gasp and flimsy attempt to testify that she indeed does have a qualification from UPE. It did not take much under cross examination for her to concede that she could not produce a statement of results. Had her qualification indeed been valid, she ought to have been able to produce such a statement. Her response was that the university could not find her name in their records. She gave no indication at being upset or annoyed at this. One would expect a reasonable person in her position to have been somewhat indignant at this and have pursued the matter, given the predicament it has placed her in. The most likely version is that the university does not have the results because she did not qualify there.
The question that remains then is whether the sanction of dismissal is appropriate.
Respondent has argued that it places a premium on honesty and unqualified educators cause great harm to educators and is a risk which it is obligated to eradicate. Children have the right to be taught by a qualified educator. It also argued that it has consistently applied the sanction of dismissal for such an offence. Applicant’s guilt is not in question and I can find little to mitigate against upholding the sanction of dismissal. It cannot be said that the applicant had merely made an error of judgment. Her actions where pre determined and made with the specific intent of trying to obtaining some financial benefit which she ordinarily would not have been entitled to. Respondent submitted that the amount involved was some R270 000 that the applicant had been paid over time and to which she was not entitled to. Even though it was argued by the applicant that she now had valid qualifications, that is irrelevant. She made a deliberate and fraudulent misrepresentation with the deliberate purpose of fooling her employer. From the start, applicant set out to deceive her employer. Nothing can detract from the seriousness of that and respondent has justifiably considered applicant’s dishonesty to be serious enough to have irreparably damaged the trust relationship. As an employer, it has the prerogative to set standards of conduct for its employees and to decided on the proper sanction if that standard is transgressed. Respondent has persistently taken a tough line against educators who have submitted fake or false educational qualifications and the commission of the offence has been proved, and I accordingly cannot find that the dismissal is not for a fair reason.
AWARD
1. The application is dismissed. The dismissal of the applicant is found to be procedurally and substantively fair.
2. There is no order as to costs.
________________________________
Panelist:
O9 – 02 - 2011