PSES 492-09/10
PSES 492-09/10
Award Date:
3 December 2010
Case Number: PSES 492-09/10
Province: Limpopo
Applicant: Anna Christina Bold
Respondent: Gauteng Department of Education
Issue: Unfair Dismissal - Misconduct
Venue: Polokwane
Award Date: 3 December 2010
Arbitrator: Ravi Naidoo
ARBITRATION AWARD
Commissioner:
Ravi Naidoo
Case No:
PSES 492-09/10
Date of Ruling:
03 December 2010
IN THE MATTER BETWEEN:
Anna Christina Bold
Union / Applicant / Employee party
And
Gauteng Department of Education
Respondent / Employer party
Union/Employee’s representative:
J C vd Walt - attorney
Union/Employee’s address:
Telephone:
Fax:
Employer’s representative:
Mvuleni Tshitshiba
Employer’s Address:
Telephone:
Fax:
1.DETAILS OF HEARING AND REPRESENTATION:
The arbitration hearing commenced on the 29 September 2010 and remained part-heard. The matter reconvened on 09 November 2010 and was finalised on the same day at the offices of the Department of Education in Polokwane. The applicants, A C Bold, was represented by J C vd Walt, a legal representative. The respondent, Gauteng Department of Education, was represented by M Tshitshiba from the labour relations department.
2.Issues to be decided:
The applicant challenged the substance of her dismissal for her alleged unauthorised absence from duty. On the issue of procedure the applicant alleged that the respondent failed to comply with proper disciplinary procedure in that the applicant was no informed of the date of set down of the disciplinary enquiry and was therefore not afforded the opportunity to present her version of events. The applicant further alleged that the presiding officer failed to keep a record of the proceedings.
3.Background to the issues:
The applicant was appointed Deputy Principal at Magaliesburg State School in January 2007. The applicant earned a salary of R16 463-00 per month, at the time of her dismissal. The applicant was dismissed in May 2009.
4. Survey of the evidence and argument:
4.1 Evidence of the Respondent
4.1.1 Witness1: Vusimuzi Archmore Ndlovu testifies as follows
1) The witness is the Labour relations officer for the Gauteng Department of Education.
2) The witness is responsible for coordinating all Labour relations functions at the district level.
3) The witness was the presiding officer the applicant's disciplinary enquiry. The applicant’s disciplinary enquiry was finalised in 2009. Initially the disciplinary enquiry was set down for late 2008, however, the enquiry could not proceed due to the applicant not been represented. The disciplinary enquiry was postponed in order to allow the applicant to obtain representation. The disciplinary enquiry convened for a second time and had to be postponed again in order to afford the applicant an opportunity to prepare for the disciplinary enquiry.
4) On the third occasion the disciplinary enquiry did not proceed due to the presiding officer taking ill.
5) On the 4th occasion the disciplinary enquiry did not proceed due to the applicant being absent at the enquiry. The respondent's representative provided proof that the applicant had been informed of the enquiry. The witness was not satisfied that the applicant was properly informed and as a result the enquiry was once again postponed.
6) On the fifth occasion the applicant once again did not present herself at the disciplinary enquiry. The witness was provided with proof that the applicant was informed via registered mail of the enquiry. The disciplinary enquiry accordingly proceeded in the applicant's absence.
7) The respondent presented its case to the witness. The applicant was found guilty of the transgression. The witness applied his mind to the sanction of dismissal and took cognisance of the fact that the applicant had been instructed on several occasions by the principal, the IDSO, as well as the director of Labour relations at the Gauteng Department of Education head office, to return to her post at the school in question. The applicant failed to heed to these instructions.
8) The notification to attend the disciplinary enquiry was sent to the last known address of the applicant.
9) After the disciplinary enquiry was concluded a report on the proceedings was submitted to the director of labour relations.
4.1.2 Cross Examination
1) The witness indicated that he was presented with the necessary bundle of documents from both the applicant and the respondent parties.
2) The witness was referred to page 49.1 of bundle B. The witness confirmed that a letter was sent from the director of Labour relations, one Sakina Beig, to the applicant. In her correspondence to the applicant the Director of Labour Relations instructed the applicant to report for duty at her designated school within 24 hours and to submit reasons for her absence. The letter was dated 28th of August 2008.
3) The witness was unable to supply a conclusive answer as to whether he ever ensured that the registered mail containing the notice to attend the disciplinary enquiry was indeed received by the applicant as per compliance with paragraph 5(2) ( c) of the employment of educators act.
4) The witness indicated that he took the following factors into account when making his decision concerning the applicant's dismissal: (A) that the applicant failed to report for duty for protracted period of time (B) that the applicant was instructed by the principal, IDSO and the director of Labour relations to report for duty at her designated school and the applicant failed to do so (C) the probable impact which the applicant's absence from school had on the learners.
4.1.3 Witness 2: Nomsa Mtimkulu testified as follows:
1) The witness is the principle of Magaliesburg State School.
2) The applicant was appointed as the second deputy principal at Magaliesburg State School.
3) The applicant failed to report for duty at the beginning of the school term in 2008 and failed to inform the witness of her absence.
4) The witness wrote a letter addressed to the applicant, dated 18 January 2008, in which the witness indicated to the applicant that the applicant had failed to report for duty since 7 January 2008 when the schools re-opened. It was indicated to the applicant in the correspondence that absenteeism was having a negative impact on the administration teaching and learning at the school.
4.1.4 Cross Examination
1) Towards the latter part of 2007. The applicant had indicated to the witness that she had sick leave until 5 December 2007. The applicant however failed to report for duty in 2008. The witness reported the applicant's absenteeism to the IDSO.
2) At no time did the IDSO ever mention the applicant's whereabouts to the witness.
3) The witness denied that there was any animosity between herself and the applicant.
4) The applicant was the deputy principal and the witness was the principal. The relationship between the two of them was a professional relationship.
5) The witness denied that there were any problems between herself and the applicant.
6) The witness indicated that it was for the first time at upon reading the correspondence of the applicant to the Department that she became aware that the applicant had taken issue with her as principal.
7) The witness indicated that there was no valid reason as to why the applicant absented herself from work.
4.1.4 Re-Examination
1) The applicant responded to the letter sent by the witness querying the applicant's absenteeism by indicating that the matter was with the applicant's lawyers.
2) At no time did the applicant ever present herself for duty at school during 2008.
3) The witness indicated that she was not aware of the reasons for the applicant's absence from school.
It was established as common cause that the applicant did not present herself for duty at Magaliesburg State School for the duration of employment during 2008.
4.2 Evidence of the Applicant
4.2.1 The applicant Anna Christina Bold testified as follows:
1) The applicant was appointed as deputy principal at Magaliesburg State School.
2) The applicant alleged that she was not given an opportunity to present her case at the disciplinary enquiry, as the enquiry proceeded in her absence. The applicant alleged that she did not receive any notification to attend the disciplinary enquiry when convened for the final time. ( It is common cause that the notification was sent via registered mail to the applicants residential address and was returned undelivered)
3) On the first day of the term in 2008 the applicant decided that she would not return to Magaliesburg State School. The applicant indicated that she was prepared to sit at the district office.
4) On her arrival at the district office the applicant was informed by Mr Tshitshiba that she could not spend time waiting in his office. The applicant indicated that she proceeded to sit outside the office of Mr Tshitshiba. The applicant was then informed by MrTshitshiba that she could not sit at the district offices. The applicant then left.
5) The applicant denied that the district informed her to return to school. The applicant indicated that Mr Tshitshiba was aware of some of the complaints of the applicant. The applicant indicated that she received no guidance from Mr Tshitshiba and that she was just asked to leave the district office.
6) The applicant alleged that she felt unsafe to return to her designated school due to the other deputy principal attempting to assault her with a pen in his hand.
7) The deputy principal Mr Kgosiman indicated to the applicant that since the ' four rats ' were in the school, the school was going down. The applicant interpreted this as a racial remark.
8) The applicant further alleged that the principal placed her in an office which was like a storeroom. The applicant indicated that she was not invited to the school management team meetings. The applicant alleged that the principal went out of her way to make the applicant the joke of the school.
9) On 7 September 2007 the applicant wrote a grievance letter and handed the letter to Mr Striecher (the IDSO) at the district office . The letter was copied for the attention of Mr Dlamini and Mr Skosana (Acting Director).
10) The applicant complained about the following:
· The applicant was provided with the incorrect information when dealing with the timetable. The applicant felt humiliated by this experience.
· The Principal forced the applicant to do the principals house plans and the applicant refused. The principal became furious as a result.
· The Principal would claim that she was going to the district office, but however would not present herself at the district office.
· The workload was unfairly distributed as the other Deputy Principal was given a lesser workload.
· The applicant indicated that there were 5 post level 1 educators who taught fewer periods than the applicant.
· The applicant indicated that the educators did not teach because there was no relevant learning material available.
11) The applicant expressed the view that the principal did not address the issues of the school and that the school began to deteriorate.
12) The applicant alleged that Mtimkulu reported the applicant to the IDSO, Mr Striecher. Striecher discussed the complaint with the applicant.
13) The applicant alleged that a member of the SGB had indicated to her that the principal wanted to get rid of her.
14) The applicant reported that the principal used a school cheque to pay for the door frames for her personal property.
15) The applicant indicated that she did have a meeting with Striecher, Kgosiman and Dlamini. The applicant alleged that nothing much was discussed. The principal, Mtimkulu, was cautioned about her absenteeism.
16) The applicant alleged that when the principal was not present the burden fell on the applicant and the other Deputy Principal to manage the school.
17) The applicant expressed the view that none of her concerns were addressed by the district office. The applicant indicated that even her correspondence to Tshithiba did not receive any reply.
18) The applicant admitted receiving the letter (Bundle B, page45). The applicant responded by saying that she had responded to the department.
19) The applicant admitted receiving the letter from Peter Skosana dated 10 March 2008, requesting an explanation from the applicant as to why her services should not be terminated in terms of section 14 of the Employment of Educators Act. The applicant indicated that she responded to the letter in writing indicating that she could not go back to Magaliesburg State School due to the treatment she was receiving from the principal and the lack of support and scare tactics by the District office. The applicant indicated that she “was waiting for a reaction to her request for a Constructive Dismissal or to be offered a similar post within the district. (Bundle B, page 48-49)
20) The applicant indicated that she was prepared to work if she was given a post elsewhere.
21) The applicant admitted receiving a letter from the Director of Labour Relations, Sakiena Beig, where the applicant was instructed to return to her school and submit reason for her prolonged absence from work. The applicant indicated that she responded to the Directors request in writing, once again highlighting her grievances and refusing to return to Magaliesburg State School (Bundle B, page 51)
22) The Department then instituted disciplinary measures against the applicant.
23) The applicant indicated that she was not willing to work at Magaliesburg State School, but would be open to accepting a post elsewhere.
24) At the end of July 2009 the applicant contacted the secretary of Westridge High School. The applicant reported for duty at that school because the school was in need of assistance.
25) The applicant approached the district office and spoke to one Sandy who indicated that there would be no problem in transferring the applicant.
26) The applicant then received a letter saying that she was still appointed at Magaliesburg State School. The applicant responded by indicating that she wanted a transfer to Westridge High School.
27) The District Office responded to the applicant’s request indicating that they could not transfer the applicant as disciplinary action was pending against the applicant.
4.2.2 Cross Examination
1) The applicant indicated that at no time did she resign. The applicant indicated that she abandoned her post for good reason.
2) The applicant indicated that at no time did she claim that she was constructively dismissed.
3) On the 07 January 2008 the applicant stayed at home and did not report for duty. The applicant alleged that she stayed at home in order to write a letter to the Department of Education.
4) The applicant admitted submitting correspondence to the Department alleging that she wanted to be “constructively dismissed”
5) The applicant initially submitted that she had requested a transfer. The applicant conceded that at no time did she submit any correspondence to the Department, seeking a transfer.
6) The applicant admitted being familiar with the grievance procedure.
7) The applicant alleged that she was almost attacked by Mr Kgosiman and therefore did not feel safe to return to school.
8) The applicant approached the District 12 office without the knowledge of the District 2 office where the applicant was based. At no time did the applicant ever request a transfer via the District 2 office.
9) The applicant admitted that a meeting was convened to discuss the applicant’s concerns. The applicant believed that her concerns were not being addressed. The applicant refused to reconcile due to this and as a result chose to leave the meeting.
10) The applicant indicated that according to the evidence presented by the Department, the applicant’s notice to attend the disciplinary enquiry was sent to the applicant’s street address. The applicant indicated that no mail is delivered to her street address and as a result she did not receive the notice to attend the disciplinary enquiry.
4.2.3 Re-Examination
1) The applicant alleged that she left the school in question because she was attacked by Mr Kgosiman and victimized by Ms Mtimkulu.
2) The applicant alleged that her complaints went unheard by the district 2 office.
4.2.4 Witness 2: Jane Sophie Mosito testified as follows:
1) The witness was an SGB member at Magaliesburg State School for the period 2007 to 2009.
2) The witness was not familiar with the relationship between the applicant and the principal.
3) The witness confirmed that the SGB did receive a report that Kgosiman had a disagreement with the applicant.
The Respondent called the following rebuttal witnesses:
4.3.1 Witness: Sarel Franscios Streicher testified as follows:
1) The witness was present at the meetings which were held in Mr Dlamini’s office. The applicant was present at the meeting. The purpose of the meeting was to address the concerns of the applicant which related to the division of work between the two Deputy Principals, the incident of Kgosiman allegedly calling the applicant a racist and the complaint about the applicant’s office.
2) The witness reported to Dlamini that the issues raised by the applicant had not been resolved. Dlamini requested a background to the complaints. During the process the applicant got upset and left the meeting.
3) The witness indicated that he was responsible for providing support to the school where the applicant was based. The witness indicated that he did address the incident where the applicant and Kgosiman had an argument. The witness mediated the differences between the two and the issue was resolved.
4) The issue of the applicant’s office space was also resolved.
5) The witness also dealt with the issue of the applicant’s job description.
4.3.2 Cross Examination
1) The witness indicated that he was familiar with the letter of complaint by the applicant.
2) The witness indicated that the issues that were raised by the applicant were being addressed and resolved over a period of time.
3) The witness indicated that he also addressed the issues at school level.
4) The witness indicated that a number of issues which were previously resolved , were raised again by the applicant in her correspondence dated 07 September 2007.
5) The witness indicated that all the issues that were raised by the applicant were not addressed in the first meeting as the issues were being addressed over a period of time.
6) When an educator absconds, the Department is unable to just fill the post, as the post not considered vacant unless the necessary action is taken.
7) The Labour relations Department indicated that they would submit the necessary correspondence to the applicant in dealing with the issue of the applicant’s absenteeism from duty.
4.3.3 Witness: Peter Skosana testified as follows:
1) The witness was present when the meeting was held to address the issues raised by the applicant.
2) The witness chaired the meeting held in 2007. The purpose of the meeting was to try and resolve the issues which the applicant had raised. Present at the meeting were Mtimkulu (Principal), Kgosiman, Stiecher, Dlamini and the applicant.
3) The witness had received correspondence from the IDSO indicating that he had exhausted all his attempts to resolve the applicant’s issues.
4) The applicant and the other concerned parties were given an opportunity to give their versions of events.
5) During the course of the meeting the applicant stood up and indicated that her lawyer would address the issues and proceeded to walk out of the meeting.
6) A while later the applicant returned with a doctor’s note and the applicant never returned thereafter.
7) The applicant was aware that if she was taking leave she had to fill in the necessary leave forms.
8) The meeting was specially called to try and resolve the concerns of the applicant, however, the applicant was not a willing participant.
4.3.4 Cross Examination
1) The witness confirmed that the applicant returned thirty minutes after leaving the meeting in question and produced a medical certificate.
2) The witness convened the meeting in an attempt to address the concerns of the applicant.
3) Each person concerned was given an opportunity to present their side of the story.
4) The applicant walked out of the meeting.
5) The applicant then did not return to school and absented herself without permission.
6) Due to the Labour Relations Department dealing with a number of cases, the applicant’s matter was only dealt with in November 2008.
4.3.5 Witness: Phulani Tafane testified as follows:
1) The witness is a Labour Relations Officer based at Gauteng West District.
2) The witness is familiar with the applicant.
3) The applicant came to the witnesses office in January 2008 and indicated that she would not return to Magaliesburg State School because she was not happy being there.
4) The witness advised the applicant to return to the school and advised the applicant to follow a grievance procedure if she was not satisfied.
5) At no time did the applicant ever indicate that she was reporting for duty at the district office.
6) The applicant indicated to the witness that she wanted to claim constructive dismissal. The witness advised the applicant to first exhaust all her internal grievance procedures.
7) The applicant then failed to report for duty during 2008. On investigation it was established that at no time did the applicant ever make any application for leave or that leave was granted to the applicant.
8) The witness wrote a letter to the applicant and physically delivered the letter to the applicant (BB. P46)
9) When the initial disciplinary enquiry convened, it had to be postponed due to the applicant having a representative.
10) The witness was tasked to ensure that the applicant secured a representative.
11) The applicant failed to attend the enquiry which was scheduled for the final time. The applicant had been informed of the hearing via correspondence sent via registered mail. The notice was returned undelivered to the District Office.
4.3.6 Cross Examination
1) The respondent had initiated an investigation into the allegations made by the applicant.
2) The witness had a number of interactions with the applicant in response to the grievances raised by the applicant. The witness indicated that she even personally to the applicant’s home in this regard.
3) The applicant still refused to report for duty, even after the Director of Labour Relations had requested the applicant to report for duty.
4) The applicant was still receiving her full salary even though she was not reporting for duty.
5) The witness’s investigation revealed that the issues which were raised by the applicant had been addressed.
6) If the Department ceded to the applicant’s demand to be given an alternate post, the implication would have been that any other educator who felt unhappy could also just request an alternate post.
7) It was clearly explained to the applicant that she had to return to school.
8) Due to the applicant raising certain complaints, the respondent decided not to invoke section 14 of the Employment of Educators Act, where the applicant would have been deemed to be dismissed. Instead the respondent charged the applicant with unauthorized absence from work.
5. Analysis of evidence and argument :
1) The applicant in this matter was dismissed for failing to report for duty for a prolonged period of almost seven to eight months. It is common cause that the applicant failed to report for duty since the beginning of the 2008 school year up until the time that the applicant was dismissed in August 2008.
2) The applicant contended that the reason why she refused to report at Magaliesburg State School was due to her being victimised by the principal (Mtimkulu) and the other Deputy principal (Kgosiman). The respondent’s witnesses Streicher, Skosana and Dlamini all testified that attempts were made to address all the issues which the applicant had raised as part of her discontent. Both Skosana and Dlamini testified that at the meeting which was called to address the applicant’s concerns, the applicant stood up and left the meeting without affording them the opportunity to attempt to deal with the applicant’s complaints. This was never disputed by the applicant. It would therefore seem that the applicant by her actions was not willing to explore any resolution to the concerns which she had raised. Streicher on the other hand indicated that even issues that had been previously resolved was again raised by the applicant in her correspondence to the respondent. It would therefore seem that the applicant was in no way attempting to seek any resolution to her concerns. The respondent’s witness Streicher pointed out that even the incident where the applicant alleged that Kgosiman had tried to attack her, had been mediated and resolved by the witness, yet the applicant persisted to use this as an excuse that she did not feel safe at Magaliesburg State School. I do not believe that the applicant’s life was in any way placed in jeopardy if she returned to school. It would seem that the applicant was holding on to any excuse in an attempt to justify her not returning to Magaliesburg State School in 2008.
3) It was even testified to by Striecher that the issue raised by the applicant regarding her office, had been addressed. A meeting was even called at the office of the District Director in order to address the concerns of the applicant. The applicant, however, took it upon herself to walk out of the meeting and express that her lawyer would deal with the issues. This was never disputed by the applicant. Thus it is evident from the testimony provided by the respondent’s witnesses that the applicant was not a willing participant in attempting to find a solution to her grievances. The applicant admitted under cross examination that at no time did she even follow the internal grievance procedure in seeking resolution to her grievances. In fact the applicant in her own correspondence to the respondent indicated that she wanted to be “Constructively Dismissed”. The applicant, however, at no stage indicated any urge to resign. In fact the applicant came across as though she was waiting for the respondent to take some action. From all the evidence presented, I can find no justifiable reason for the applicant to absent herself from duty.
4) It is not in dispute that the applicant was requested by the principal, the IDSO, the District Director as well as the Provincial Director of Labour Relations to return to work. The applicant was even instructed by the Provincial Director of Labour Relations to substantiate with good reason her prolonged absence from duty. The applicant instead responded with written correspondence regarding her constitutional rights. The applicant’s demand was that she would return to work if given an alternative post at another school. The respondent was not in any way obliged to fulfil such a request. If every educator was allowed to make demands and request a posting to a school of their choice, the entire education system would be thrown into chaos. It was not the prerogative of the applicant that she be transferred to another school, but rather the discretion of the respondent to do so based on specific needs. The applicant therefore eventually also directly defied the order by the Provincial Director of Labour Relations that she(the applicant) report for duty in her designated post at Magaliesburg State School.
5) The applicant in no way can justify her prolonged absence from duty. I’m quite surprised that the respondent did not invoke the deeming provision of section 14 of the Employment of Educators Act in dismissing the applicant. In fact it was the respondent’s contention that they wanted to afford the applicant the opportunity to provide justification for her absence and to assess whether the applicant had valid reason to absent herself from duty. From this kind of approach, I do not believe that the respondent was in anyway being vindictive towards the applicant. If anything, the applicant was treated leniently by the respondent in an attempt to get the applicant to report for duty. The applicant, however, defied every request made by the respondent and its representatives, to report for duty. I can find no valid reason for the applicant to have absented herself for such a prolonged period at the expense the learners. Such defiance by the applicant to report for duty must be viewed in a serious light and in the instance dismissal is an appropriate sanction for the applicant’s transgression.
6) On the issue of procedure, the applicant alleged that she was never given an opportunity to present her case at the disciplinary enquiry. It is common cause that the notification to attend the disciplinary enquiry was sent to the applicant via registered mail to the applicant’s residential address. The applicant contended that no mail is ever delivered to her residential address. It is common cause that the mail was returned to the respondent undelivered. Thus the applicant was genuinely not aware when the disciplinary enquiry convened for the final time. I do believe that it was the responsibility of the presiding officer to ascertain that the mail was delivered and received by the applicant. This could have easily been verified with the SA Post Office, using the tracking number. I believe that the presiding officer failed to fully establish that the notification was received by the applicant and should not have proceeded with the enquiry in the applicant’s absence. Thus the respondent did commit a procedural defect by not ensuring that the applicant did receive the notification and to ensure that the applicant was present at the disciplinary enquiry.
7) Whilst the respondent did commit a procedural irregularity in this regard, one must also be mindful of the fact that the applicant during the period of her absence was still receiving her full salary. Thus the applicant for a period of almost 7 or 8 months received a full salary without actually tendering her services, due to her wilfully absenting herself from duty without any valid justification, even after she was instructed to return and report for duty. The aforementioned must therefore mitigate any need for any inflated compensation for a procedural defect committed by the respondent.
6. Award
1) Accordingly I find the applicant’s dismissal to be substantively fair, but procedurally unfair.
2) The respondent is hereby ordered to pay the applicant an equivalent of 2 weeks of salary which amounts to (R16 463 / 4.33 X 2) R7604-00 (seven thousand six hundred and four rand, for the procedural unfairness, within 14 days of receipt of this award
Signed and dated on this the 03rd day of December 2010.
Ravi Naidoo
ELRC Commissioner
Province: Limpopo
Applicant: Anna Christina Bold
Respondent: Gauteng Department of Education
Issue: Unfair Dismissal - Misconduct
Venue: Polokwane
Award Date: 3 December 2010
Arbitrator: Ravi Naidoo
ARBITRATION AWARD
Commissioner:
Ravi Naidoo
Case No:
PSES 492-09/10
Date of Ruling:
03 December 2010
IN THE MATTER BETWEEN:
Anna Christina Bold
Union / Applicant / Employee party
And
Gauteng Department of Education
Respondent / Employer party
Union/Employee’s representative:
J C vd Walt - attorney
Union/Employee’s address:
Telephone:
Fax:
Employer’s representative:
Mvuleni Tshitshiba
Employer’s Address:
Telephone:
Fax:
1.DETAILS OF HEARING AND REPRESENTATION:
The arbitration hearing commenced on the 29 September 2010 and remained part-heard. The matter reconvened on 09 November 2010 and was finalised on the same day at the offices of the Department of Education in Polokwane. The applicants, A C Bold, was represented by J C vd Walt, a legal representative. The respondent, Gauteng Department of Education, was represented by M Tshitshiba from the labour relations department.
2.Issues to be decided:
The applicant challenged the substance of her dismissal for her alleged unauthorised absence from duty. On the issue of procedure the applicant alleged that the respondent failed to comply with proper disciplinary procedure in that the applicant was no informed of the date of set down of the disciplinary enquiry and was therefore not afforded the opportunity to present her version of events. The applicant further alleged that the presiding officer failed to keep a record of the proceedings.
3.Background to the issues:
The applicant was appointed Deputy Principal at Magaliesburg State School in January 2007. The applicant earned a salary of R16 463-00 per month, at the time of her dismissal. The applicant was dismissed in May 2009.
4. Survey of the evidence and argument:
4.1 Evidence of the Respondent
4.1.1 Witness1: Vusimuzi Archmore Ndlovu testifies as follows
1) The witness is the Labour relations officer for the Gauteng Department of Education.
2) The witness is responsible for coordinating all Labour relations functions at the district level.
3) The witness was the presiding officer the applicant's disciplinary enquiry. The applicant’s disciplinary enquiry was finalised in 2009. Initially the disciplinary enquiry was set down for late 2008, however, the enquiry could not proceed due to the applicant not been represented. The disciplinary enquiry was postponed in order to allow the applicant to obtain representation. The disciplinary enquiry convened for a second time and had to be postponed again in order to afford the applicant an opportunity to prepare for the disciplinary enquiry.
4) On the third occasion the disciplinary enquiry did not proceed due to the presiding officer taking ill.
5) On the 4th occasion the disciplinary enquiry did not proceed due to the applicant being absent at the enquiry. The respondent's representative provided proof that the applicant had been informed of the enquiry. The witness was not satisfied that the applicant was properly informed and as a result the enquiry was once again postponed.
6) On the fifth occasion the applicant once again did not present herself at the disciplinary enquiry. The witness was provided with proof that the applicant was informed via registered mail of the enquiry. The disciplinary enquiry accordingly proceeded in the applicant's absence.
7) The respondent presented its case to the witness. The applicant was found guilty of the transgression. The witness applied his mind to the sanction of dismissal and took cognisance of the fact that the applicant had been instructed on several occasions by the principal, the IDSO, as well as the director of Labour relations at the Gauteng Department of Education head office, to return to her post at the school in question. The applicant failed to heed to these instructions.
8) The notification to attend the disciplinary enquiry was sent to the last known address of the applicant.
9) After the disciplinary enquiry was concluded a report on the proceedings was submitted to the director of labour relations.
4.1.2 Cross Examination
1) The witness indicated that he was presented with the necessary bundle of documents from both the applicant and the respondent parties.
2) The witness was referred to page 49.1 of bundle B. The witness confirmed that a letter was sent from the director of Labour relations, one Sakina Beig, to the applicant. In her correspondence to the applicant the Director of Labour Relations instructed the applicant to report for duty at her designated school within 24 hours and to submit reasons for her absence. The letter was dated 28th of August 2008.
3) The witness was unable to supply a conclusive answer as to whether he ever ensured that the registered mail containing the notice to attend the disciplinary enquiry was indeed received by the applicant as per compliance with paragraph 5(2) ( c) of the employment of educators act.
4) The witness indicated that he took the following factors into account when making his decision concerning the applicant's dismissal: (A) that the applicant failed to report for duty for protracted period of time (B) that the applicant was instructed by the principal, IDSO and the director of Labour relations to report for duty at her designated school and the applicant failed to do so (C) the probable impact which the applicant's absence from school had on the learners.
4.1.3 Witness 2: Nomsa Mtimkulu testified as follows:
1) The witness is the principle of Magaliesburg State School.
2) The applicant was appointed as the second deputy principal at Magaliesburg State School.
3) The applicant failed to report for duty at the beginning of the school term in 2008 and failed to inform the witness of her absence.
4) The witness wrote a letter addressed to the applicant, dated 18 January 2008, in which the witness indicated to the applicant that the applicant had failed to report for duty since 7 January 2008 when the schools re-opened. It was indicated to the applicant in the correspondence that absenteeism was having a negative impact on the administration teaching and learning at the school.
4.1.4 Cross Examination
1) Towards the latter part of 2007. The applicant had indicated to the witness that she had sick leave until 5 December 2007. The applicant however failed to report for duty in 2008. The witness reported the applicant's absenteeism to the IDSO.
2) At no time did the IDSO ever mention the applicant's whereabouts to the witness.
3) The witness denied that there was any animosity between herself and the applicant.
4) The applicant was the deputy principal and the witness was the principal. The relationship between the two of them was a professional relationship.
5) The witness denied that there were any problems between herself and the applicant.
6) The witness indicated that it was for the first time at upon reading the correspondence of the applicant to the Department that she became aware that the applicant had taken issue with her as principal.
7) The witness indicated that there was no valid reason as to why the applicant absented herself from work.
4.1.4 Re-Examination
1) The applicant responded to the letter sent by the witness querying the applicant's absenteeism by indicating that the matter was with the applicant's lawyers.
2) At no time did the applicant ever present herself for duty at school during 2008.
3) The witness indicated that she was not aware of the reasons for the applicant's absence from school.
It was established as common cause that the applicant did not present herself for duty at Magaliesburg State School for the duration of employment during 2008.
4.2 Evidence of the Applicant
4.2.1 The applicant Anna Christina Bold testified as follows:
1) The applicant was appointed as deputy principal at Magaliesburg State School.
2) The applicant alleged that she was not given an opportunity to present her case at the disciplinary enquiry, as the enquiry proceeded in her absence. The applicant alleged that she did not receive any notification to attend the disciplinary enquiry when convened for the final time. ( It is common cause that the notification was sent via registered mail to the applicants residential address and was returned undelivered)
3) On the first day of the term in 2008 the applicant decided that she would not return to Magaliesburg State School. The applicant indicated that she was prepared to sit at the district office.
4) On her arrival at the district office the applicant was informed by Mr Tshitshiba that she could not spend time waiting in his office. The applicant indicated that she proceeded to sit outside the office of Mr Tshitshiba. The applicant was then informed by MrTshitshiba that she could not sit at the district offices. The applicant then left.
5) The applicant denied that the district informed her to return to school. The applicant indicated that Mr Tshitshiba was aware of some of the complaints of the applicant. The applicant indicated that she received no guidance from Mr Tshitshiba and that she was just asked to leave the district office.
6) The applicant alleged that she felt unsafe to return to her designated school due to the other deputy principal attempting to assault her with a pen in his hand.
7) The deputy principal Mr Kgosiman indicated to the applicant that since the ' four rats ' were in the school, the school was going down. The applicant interpreted this as a racial remark.
8) The applicant further alleged that the principal placed her in an office which was like a storeroom. The applicant indicated that she was not invited to the school management team meetings. The applicant alleged that the principal went out of her way to make the applicant the joke of the school.
9) On 7 September 2007 the applicant wrote a grievance letter and handed the letter to Mr Striecher (the IDSO) at the district office . The letter was copied for the attention of Mr Dlamini and Mr Skosana (Acting Director).
10) The applicant complained about the following:
· The applicant was provided with the incorrect information when dealing with the timetable. The applicant felt humiliated by this experience.
· The Principal forced the applicant to do the principals house plans and the applicant refused. The principal became furious as a result.
· The Principal would claim that she was going to the district office, but however would not present herself at the district office.
· The workload was unfairly distributed as the other Deputy Principal was given a lesser workload.
· The applicant indicated that there were 5 post level 1 educators who taught fewer periods than the applicant.
· The applicant indicated that the educators did not teach because there was no relevant learning material available.
11) The applicant expressed the view that the principal did not address the issues of the school and that the school began to deteriorate.
12) The applicant alleged that Mtimkulu reported the applicant to the IDSO, Mr Striecher. Striecher discussed the complaint with the applicant.
13) The applicant alleged that a member of the SGB had indicated to her that the principal wanted to get rid of her.
14) The applicant reported that the principal used a school cheque to pay for the door frames for her personal property.
15) The applicant indicated that she did have a meeting with Striecher, Kgosiman and Dlamini. The applicant alleged that nothing much was discussed. The principal, Mtimkulu, was cautioned about her absenteeism.
16) The applicant alleged that when the principal was not present the burden fell on the applicant and the other Deputy Principal to manage the school.
17) The applicant expressed the view that none of her concerns were addressed by the district office. The applicant indicated that even her correspondence to Tshithiba did not receive any reply.
18) The applicant admitted receiving the letter (Bundle B, page45). The applicant responded by saying that she had responded to the department.
19) The applicant admitted receiving the letter from Peter Skosana dated 10 March 2008, requesting an explanation from the applicant as to why her services should not be terminated in terms of section 14 of the Employment of Educators Act. The applicant indicated that she responded to the letter in writing indicating that she could not go back to Magaliesburg State School due to the treatment she was receiving from the principal and the lack of support and scare tactics by the District office. The applicant indicated that she “was waiting for a reaction to her request for a Constructive Dismissal or to be offered a similar post within the district. (Bundle B, page 48-49)
20) The applicant indicated that she was prepared to work if she was given a post elsewhere.
21) The applicant admitted receiving a letter from the Director of Labour Relations, Sakiena Beig, where the applicant was instructed to return to her school and submit reason for her prolonged absence from work. The applicant indicated that she responded to the Directors request in writing, once again highlighting her grievances and refusing to return to Magaliesburg State School (Bundle B, page 51)
22) The Department then instituted disciplinary measures against the applicant.
23) The applicant indicated that she was not willing to work at Magaliesburg State School, but would be open to accepting a post elsewhere.
24) At the end of July 2009 the applicant contacted the secretary of Westridge High School. The applicant reported for duty at that school because the school was in need of assistance.
25) The applicant approached the district office and spoke to one Sandy who indicated that there would be no problem in transferring the applicant.
26) The applicant then received a letter saying that she was still appointed at Magaliesburg State School. The applicant responded by indicating that she wanted a transfer to Westridge High School.
27) The District Office responded to the applicant’s request indicating that they could not transfer the applicant as disciplinary action was pending against the applicant.
4.2.2 Cross Examination
1) The applicant indicated that at no time did she resign. The applicant indicated that she abandoned her post for good reason.
2) The applicant indicated that at no time did she claim that she was constructively dismissed.
3) On the 07 January 2008 the applicant stayed at home and did not report for duty. The applicant alleged that she stayed at home in order to write a letter to the Department of Education.
4) The applicant admitted submitting correspondence to the Department alleging that she wanted to be “constructively dismissed”
5) The applicant initially submitted that she had requested a transfer. The applicant conceded that at no time did she submit any correspondence to the Department, seeking a transfer.
6) The applicant admitted being familiar with the grievance procedure.
7) The applicant alleged that she was almost attacked by Mr Kgosiman and therefore did not feel safe to return to school.
8) The applicant approached the District 12 office without the knowledge of the District 2 office where the applicant was based. At no time did the applicant ever request a transfer via the District 2 office.
9) The applicant admitted that a meeting was convened to discuss the applicant’s concerns. The applicant believed that her concerns were not being addressed. The applicant refused to reconcile due to this and as a result chose to leave the meeting.
10) The applicant indicated that according to the evidence presented by the Department, the applicant’s notice to attend the disciplinary enquiry was sent to the applicant’s street address. The applicant indicated that no mail is delivered to her street address and as a result she did not receive the notice to attend the disciplinary enquiry.
4.2.3 Re-Examination
1) The applicant alleged that she left the school in question because she was attacked by Mr Kgosiman and victimized by Ms Mtimkulu.
2) The applicant alleged that her complaints went unheard by the district 2 office.
4.2.4 Witness 2: Jane Sophie Mosito testified as follows:
1) The witness was an SGB member at Magaliesburg State School for the period 2007 to 2009.
2) The witness was not familiar with the relationship between the applicant and the principal.
3) The witness confirmed that the SGB did receive a report that Kgosiman had a disagreement with the applicant.
The Respondent called the following rebuttal witnesses:
4.3.1 Witness: Sarel Franscios Streicher testified as follows:
1) The witness was present at the meetings which were held in Mr Dlamini’s office. The applicant was present at the meeting. The purpose of the meeting was to address the concerns of the applicant which related to the division of work between the two Deputy Principals, the incident of Kgosiman allegedly calling the applicant a racist and the complaint about the applicant’s office.
2) The witness reported to Dlamini that the issues raised by the applicant had not been resolved. Dlamini requested a background to the complaints. During the process the applicant got upset and left the meeting.
3) The witness indicated that he was responsible for providing support to the school where the applicant was based. The witness indicated that he did address the incident where the applicant and Kgosiman had an argument. The witness mediated the differences between the two and the issue was resolved.
4) The issue of the applicant’s office space was also resolved.
5) The witness also dealt with the issue of the applicant’s job description.
4.3.2 Cross Examination
1) The witness indicated that he was familiar with the letter of complaint by the applicant.
2) The witness indicated that the issues that were raised by the applicant were being addressed and resolved over a period of time.
3) The witness indicated that he also addressed the issues at school level.
4) The witness indicated that a number of issues which were previously resolved , were raised again by the applicant in her correspondence dated 07 September 2007.
5) The witness indicated that all the issues that were raised by the applicant were not addressed in the first meeting as the issues were being addressed over a period of time.
6) When an educator absconds, the Department is unable to just fill the post, as the post not considered vacant unless the necessary action is taken.
7) The Labour relations Department indicated that they would submit the necessary correspondence to the applicant in dealing with the issue of the applicant’s absenteeism from duty.
4.3.3 Witness: Peter Skosana testified as follows:
1) The witness was present when the meeting was held to address the issues raised by the applicant.
2) The witness chaired the meeting held in 2007. The purpose of the meeting was to try and resolve the issues which the applicant had raised. Present at the meeting were Mtimkulu (Principal), Kgosiman, Stiecher, Dlamini and the applicant.
3) The witness had received correspondence from the IDSO indicating that he had exhausted all his attempts to resolve the applicant’s issues.
4) The applicant and the other concerned parties were given an opportunity to give their versions of events.
5) During the course of the meeting the applicant stood up and indicated that her lawyer would address the issues and proceeded to walk out of the meeting.
6) A while later the applicant returned with a doctor’s note and the applicant never returned thereafter.
7) The applicant was aware that if she was taking leave she had to fill in the necessary leave forms.
8) The meeting was specially called to try and resolve the concerns of the applicant, however, the applicant was not a willing participant.
4.3.4 Cross Examination
1) The witness confirmed that the applicant returned thirty minutes after leaving the meeting in question and produced a medical certificate.
2) The witness convened the meeting in an attempt to address the concerns of the applicant.
3) Each person concerned was given an opportunity to present their side of the story.
4) The applicant walked out of the meeting.
5) The applicant then did not return to school and absented herself without permission.
6) Due to the Labour Relations Department dealing with a number of cases, the applicant’s matter was only dealt with in November 2008.
4.3.5 Witness: Phulani Tafane testified as follows:
1) The witness is a Labour Relations Officer based at Gauteng West District.
2) The witness is familiar with the applicant.
3) The applicant came to the witnesses office in January 2008 and indicated that she would not return to Magaliesburg State School because she was not happy being there.
4) The witness advised the applicant to return to the school and advised the applicant to follow a grievance procedure if she was not satisfied.
5) At no time did the applicant ever indicate that she was reporting for duty at the district office.
6) The applicant indicated to the witness that she wanted to claim constructive dismissal. The witness advised the applicant to first exhaust all her internal grievance procedures.
7) The applicant then failed to report for duty during 2008. On investigation it was established that at no time did the applicant ever make any application for leave or that leave was granted to the applicant.
8) The witness wrote a letter to the applicant and physically delivered the letter to the applicant (BB. P46)
9) When the initial disciplinary enquiry convened, it had to be postponed due to the applicant having a representative.
10) The witness was tasked to ensure that the applicant secured a representative.
11) The applicant failed to attend the enquiry which was scheduled for the final time. The applicant had been informed of the hearing via correspondence sent via registered mail. The notice was returned undelivered to the District Office.
4.3.6 Cross Examination
1) The respondent had initiated an investigation into the allegations made by the applicant.
2) The witness had a number of interactions with the applicant in response to the grievances raised by the applicant. The witness indicated that she even personally to the applicant’s home in this regard.
3) The applicant still refused to report for duty, even after the Director of Labour Relations had requested the applicant to report for duty.
4) The applicant was still receiving her full salary even though she was not reporting for duty.
5) The witness’s investigation revealed that the issues which were raised by the applicant had been addressed.
6) If the Department ceded to the applicant’s demand to be given an alternate post, the implication would have been that any other educator who felt unhappy could also just request an alternate post.
7) It was clearly explained to the applicant that she had to return to school.
8) Due to the applicant raising certain complaints, the respondent decided not to invoke section 14 of the Employment of Educators Act, where the applicant would have been deemed to be dismissed. Instead the respondent charged the applicant with unauthorized absence from work.
5. Analysis of evidence and argument :
1) The applicant in this matter was dismissed for failing to report for duty for a prolonged period of almost seven to eight months. It is common cause that the applicant failed to report for duty since the beginning of the 2008 school year up until the time that the applicant was dismissed in August 2008.
2) The applicant contended that the reason why she refused to report at Magaliesburg State School was due to her being victimised by the principal (Mtimkulu) and the other Deputy principal (Kgosiman). The respondent’s witnesses Streicher, Skosana and Dlamini all testified that attempts were made to address all the issues which the applicant had raised as part of her discontent. Both Skosana and Dlamini testified that at the meeting which was called to address the applicant’s concerns, the applicant stood up and left the meeting without affording them the opportunity to attempt to deal with the applicant’s complaints. This was never disputed by the applicant. It would therefore seem that the applicant by her actions was not willing to explore any resolution to the concerns which she had raised. Streicher on the other hand indicated that even issues that had been previously resolved was again raised by the applicant in her correspondence to the respondent. It would therefore seem that the applicant was in no way attempting to seek any resolution to her concerns. The respondent’s witness Streicher pointed out that even the incident where the applicant alleged that Kgosiman had tried to attack her, had been mediated and resolved by the witness, yet the applicant persisted to use this as an excuse that she did not feel safe at Magaliesburg State School. I do not believe that the applicant’s life was in any way placed in jeopardy if she returned to school. It would seem that the applicant was holding on to any excuse in an attempt to justify her not returning to Magaliesburg State School in 2008.
3) It was even testified to by Striecher that the issue raised by the applicant regarding her office, had been addressed. A meeting was even called at the office of the District Director in order to address the concerns of the applicant. The applicant, however, took it upon herself to walk out of the meeting and express that her lawyer would deal with the issues. This was never disputed by the applicant. Thus it is evident from the testimony provided by the respondent’s witnesses that the applicant was not a willing participant in attempting to find a solution to her grievances. The applicant admitted under cross examination that at no time did she even follow the internal grievance procedure in seeking resolution to her grievances. In fact the applicant in her own correspondence to the respondent indicated that she wanted to be “Constructively Dismissed”. The applicant, however, at no stage indicated any urge to resign. In fact the applicant came across as though she was waiting for the respondent to take some action. From all the evidence presented, I can find no justifiable reason for the applicant to absent herself from duty.
4) It is not in dispute that the applicant was requested by the principal, the IDSO, the District Director as well as the Provincial Director of Labour Relations to return to work. The applicant was even instructed by the Provincial Director of Labour Relations to substantiate with good reason her prolonged absence from duty. The applicant instead responded with written correspondence regarding her constitutional rights. The applicant’s demand was that she would return to work if given an alternative post at another school. The respondent was not in any way obliged to fulfil such a request. If every educator was allowed to make demands and request a posting to a school of their choice, the entire education system would be thrown into chaos. It was not the prerogative of the applicant that she be transferred to another school, but rather the discretion of the respondent to do so based on specific needs. The applicant therefore eventually also directly defied the order by the Provincial Director of Labour Relations that she(the applicant) report for duty in her designated post at Magaliesburg State School.
5) The applicant in no way can justify her prolonged absence from duty. I’m quite surprised that the respondent did not invoke the deeming provision of section 14 of the Employment of Educators Act in dismissing the applicant. In fact it was the respondent’s contention that they wanted to afford the applicant the opportunity to provide justification for her absence and to assess whether the applicant had valid reason to absent herself from duty. From this kind of approach, I do not believe that the respondent was in anyway being vindictive towards the applicant. If anything, the applicant was treated leniently by the respondent in an attempt to get the applicant to report for duty. The applicant, however, defied every request made by the respondent and its representatives, to report for duty. I can find no valid reason for the applicant to have absented herself for such a prolonged period at the expense the learners. Such defiance by the applicant to report for duty must be viewed in a serious light and in the instance dismissal is an appropriate sanction for the applicant’s transgression.
6) On the issue of procedure, the applicant alleged that she was never given an opportunity to present her case at the disciplinary enquiry. It is common cause that the notification to attend the disciplinary enquiry was sent to the applicant via registered mail to the applicant’s residential address. The applicant contended that no mail is ever delivered to her residential address. It is common cause that the mail was returned to the respondent undelivered. Thus the applicant was genuinely not aware when the disciplinary enquiry convened for the final time. I do believe that it was the responsibility of the presiding officer to ascertain that the mail was delivered and received by the applicant. This could have easily been verified with the SA Post Office, using the tracking number. I believe that the presiding officer failed to fully establish that the notification was received by the applicant and should not have proceeded with the enquiry in the applicant’s absence. Thus the respondent did commit a procedural defect by not ensuring that the applicant did receive the notification and to ensure that the applicant was present at the disciplinary enquiry.
7) Whilst the respondent did commit a procedural irregularity in this regard, one must also be mindful of the fact that the applicant during the period of her absence was still receiving her full salary. Thus the applicant for a period of almost 7 or 8 months received a full salary without actually tendering her services, due to her wilfully absenting herself from duty without any valid justification, even after she was instructed to return and report for duty. The aforementioned must therefore mitigate any need for any inflated compensation for a procedural defect committed by the respondent.
6. Award
1) Accordingly I find the applicant’s dismissal to be substantively fair, but procedurally unfair.
2) The respondent is hereby ordered to pay the applicant an equivalent of 2 weeks of salary which amounts to (R16 463 / 4.33 X 2) R7604-00 (seven thousand six hundred and four rand, for the procedural unfairness, within 14 days of receipt of this award
Signed and dated on this the 03rd day of December 2010.
Ravi Naidoo
ELRC Commissioner