PSES 950-19/20GP

Award  Date:

10 May 2021

Case Number: PSES 950-19/20GP
Commissioner: Ramadimala Jacky Mateta
Date of Award: 10 May 2021


In the ARBITRATION between


Shenaaz Randles
(Union/Applicant)

And


Department Education-Gauteng
(Respondent)

Union/Applicant’s representative: Mr. Ahmed Cachalia (Legal Representative)
Union/Applicant’s address:



Telephone: 082 411 2959/072 139 9809
Telefax: Ahmed.cachalia@gmail.com/ nadrid005@gmail.com

E-mail:

Respondent’s representative: Mrs. Emily Magadla (Labour Relations)
Respondent’s address: Department of Education-Gauteng



Telephone:
Telefax:
E-mail: Emily.madadla@gauteng.gov.za




DETAILS OF HEARING AND REPRESENTATION

1. The arbitration proceedings were held on the 23rd of February 2021, continued on the 10th and the 11th of March 2021; the 29th and 30th of March 2021, the 12th of April 2021 and were and were finalized on the 13th of April 2021 at the Gauteng Department of Educations’ Johannesburg North offices in Braamfontein.
2. The applicant party, Mrs. Shenaaz Randles (“Applicant” hereinafter) was present in all days of the proceeding and dealt with her matter represented by Mr. Ahmed Cachalia, a legal representative.
3. The respondent party, Department of Education-Gauteng Province (“Respondent” hereafter) was also in attendance and was represented by Mrs Emily Magadla, Labour Relations Officer of the respondent.
4. The arbitration proceedings followed only an adversarial approach as both parties were sufficiently represented in the proceedings.
5. Bundles of documents were received from both respondent and applicant parties. The applicant’s bundles were marked Bundle A while the respondent’s bundles were marked bundles R1; R2; R3 and R4 for ease of reference.
6. After conclusion of arbitration on the 13th of April 2021, parties requested for extension and submission of their closing arguments in writing and were given until the 20th of April 2021 to do so. Written closing arguments were received from both parties as directed.
7. The arbitration proceedings were recorded both electronically and manually.
8. Legal representation was allowed as per the agreement of the parties in the Pre-Arbitration conference and also that after considering the complexity of the matter and the legal questions raised in the dispute, I concluded that it would be unreasonable to allow the applicant to continue with her matter without a legal representative.

BACKGROUND TO THE MATTER:

10. Before commencing with the arbitration hearing, parties confirmed to have concluded their pre-arbitration meeting and the binding nature of their pre-arbitration minutes.

11. The parties agreed that it was not in dispute that the applicant was employee of the respondent.

12. She was appointed by the respondent in March 1989, she had a break was re-appointed in March 1996. At the time of her dismissal, she was occupying the position of Deputy Principal at E.P. Baumann Primary School. Her salary was about R41 185.50 per month.

13. The applicant was dismissed by the respondent’s Appeal Authority on the 22nd of January 2020 after appeal against the sanction of the disciplinary hearings was upheld and a sanction was changed to that of a dismissal.

14. The allegations that were levelled against the applicant were outlined in page 3 of R1. The allegations reads as follows:

“It is that on or around November 2015, you committed an act of corruption in regard to Grade 7 November Examination: English Home Language Formal Assessment at E.P. Baumann Primary School in that you gave learners fraudulent marks. In view of your actions, you are thus charged with misconduct in terms of Section 17(1) of the Employment of Educators Act 76 of 1998 as amended.”

15. The applicant was found guilty of the above count and issued with three (3) months suspension without pay by the presiding officer. The HOD appealed against the sanction and the MEC upheld the appeal and the sanction were substituted with a dismissal.

16. The applicant has prayed for retrospective re-instatement in terms of the Labour Relations Act 66 of 1995 (as amended). (“Act” hereafter).

ISSUES TO BE DETERMINED
17. The existence of the dismissal was not in dispute. Both substantive and procedural fairness of the applicants’ dismissal were in dispute.
18. Procedurally, the applicant contended that she was not given an opportunity to view the documents that the respondent used at the disciplinary hearing; that the time lapsed from the alleged misconduct and the dismissal is such that the respondent should be viewed to have waived its rights to institute disciplinary proceedings; that the applicant was not dismissed by the chairperson of the hearing, the respondent lodged an appeal which subsequently substituted the chairperson’s sanction with a dismissal. It is the applicant’s contention that the appeal was out of time and was not accompanied by condonation and also that the substitution of the sanction was unfair and unlawful.
19. I was therefore procedurally required to determine whether the disciplinary action should have not continued due to effluxion of time; whether the applicant was afforded sufficient opportunity to view the documents; whether the substitution of the chairperson’s sanction with a dismissal was lawful and fair; whether the appeal was valid.
20. Substantively the applicant submitted that she was not guilty on any count of alleged misconduct. She also contended that should it be found that she guilty, she would further argue that the respondent was not consistent in applying its rules of discipline as the other employees Mr. Smit who did the same thing in 2016 was not dismissed; also that there were two others Mr. Daewood and Durger Pershad who were not disciplined for failing to moderate the papers which is alleged she did not mark, hence allowed fraud to continue. The applicant further submitted that should it be found that she is guilty, she would further contend that dismissal was not an appropriate sanction.
21. I was therefore required to determine whether the applicant was guilty on of any misconduct she was charged with; and if found so, to further determine whether the respondent has applied its rules of discipline consistently; and further as to whether dismissal was an appropriate sanction. If not so, to determine an appropriate remedy in terms of the Labour Relations Act 66 of 1995 (as amended) (“Act” hereafter).
22. The applicant prayed for retrospective re-instatement.

SURVEY OF EVIDENCE AND ARGUMENTS

Respondent’s case

Evidence:

23. Mr. Patrick Selowa testified as the first witness of the respondent. The summary of his evidence is that he was a Director: Dispute Management for the respondent responsible for management of discipline, grievance and dispute in the department for both educators and employees employed in terms of the Public Service Act. He is also responsible in advising the HOD on all labour relations issues.

24. He referred to the charge sheet on page 1 of A and testified that the applicant was charged with section 17(1)(a) offences. The November 2017 in the charge sheet was a mistake common to the parties as the alleged acts where for November 2015 and it was then clarified and corrected.

25. The chairperson pronounced a three (3) months suspension without pay (Page 2 of A). He (witness) then advised the HOD to file an Appeal because the Chairperson had no discretion to give any other form of a sanction. The Appeal was filed in terms of Schedule 2 (9) a provision that provides for the Appeals. The reason for upholding the Appeal was given in paragraph 3 to 5 of the letter which was signed by the MEC.

26. After the Appeal, the applicant was called upon by the Legal Services, a section that advices MEC in handling Appeals to make representations (page 3 of A). The outcome of the Appeal was issued and the sanction was substituted with that of a dismissal. (Page 4 of A).

27. Time line before lodging of Appeal was also considered. The delay in charging the applicant was also taken into consideration however, it should be noted that the delay was that the issues started at the District; it was then taken to the Province; an investigator was appointed and while busy dealing with investigation, he/she left/resigned from the department; another Assistant Director was appointed to continue with the matter. Furthermore, delay itself alone cannot render dismissal unfair. The respondent had never at any stage intended to waive its right to continue with the disciplinary action.

28. The Appeal to the MEC might have been late, however once the Appeal is submitted to the Appeal Authority, it was up to the Appeal Authority’s discretion whether to accept it or to condone the late Appeal. Condonation for late filing of Appeal is not provided for in the Code.

29. With regard to head of department and the principal of the school, they could not be charged as there was nothing from the Investigation report that shows that they were accomplices in the misconduct. It could also not be understood how the head of the department at the school could supervise or check the work of the Deputy Principal. He could not comment about the allegation that the chairperson of the hearing did not give the applicant sufficient time to view the documents.

30. Under cross-examination he agreed to have stated that Employment of Educators Act (EEA) makes sanctions in section 17 offences mandatory and peremptory. He also agreed that the Code states that the Appeal must be filed within 5 days and that it is peremptory. He conceded that the Appeal was filed after 5 days expiry period. He could not agree or to comment if the respondent’s appeal could be valid or defective or if the Appeal Authority should have dealt with it.

31. He agreed to the fact that Schedule 2 of the EEA is in conflict with Schedule 8 of the LRA as LRA states that before dismissing an employee, the employer must first take certain things into consideration. He agreed to have been aware of Sdumo’s case. He also agreed that if any law is inconsistent with the LRA, LRA will take precedence.

32. He agreed that the time lapse from alleged offence to the final charge is about two years. He agreed that the first letter to call upon the applicant to make submissions about the allegation was in February 2017. He agreed that in the absence of the applicant’s submission, the respondent could have proceeded and charged her after the expiry of 5 days. He agreed that the first investigating officer Mr. Zato resigned in 2018 and that the applicant had finally received her charge sheet on the 26th of February 2019. He agreed that the case law that he referred in his evidence in chief makes length of delay an important issue to be considered. He also conceded that the respondent did not suffer any prejudice.

33. He could not comment when it was put to him that the head of department at the school and the principal who signed for the schedule were equally guilty for allowing fraudulent marks and were not charged.

34. Mr. Malesela Gladwin Moabelo testified as the second witness. The summary of his evidence is that he is working for the respondent as an Assessment Official for Senior Phase. The Senior Phase comprises of Grade 1; 9 and 10. As an Assessment Official he administers Informal and Formal Assessment activities.

35. Formal assessment activities are conducted during learning and its purpose is to diagnose in nature. Meaning that it is aimed at giving the teacher feedback on how well has learning occurred, in order to plan the next learning activity. It also helps learners to see how they are progressing and what they have achieved in a particular learning portion.

36. Formal activities are given according to subject policy. It may be given as written tests and done mainly on monthly and quarterly basis. It would be marked and moderated; marks are recorded and progress report would be issued at the end of a term.

37. The policy that was used is NPPPPR and NPA revised policy. The language used in those policies is only Formal and Informal Assessment. Mork examinations are not provided.

38. According to the policy, Formal Assessment builds on the year mark that must be taken into account during progression of the learner. It counts for 40% of the learners’ final mark at the end of the academic year.

39. The examination is conducted at the end of the year and is called End of Year Examination. According to the policy, the Final Year Examination must be set as a Question Paper, it is moderated per grade and per subject. The Question Paper would be written by learners; the answer sheets are marked, marked answer sheet would be moderated, normally only a small percentage of 10% of the answer sheet. The 10% sample would normally be taken as follows: two sheets from the lowest mark; two middle achievers and two from the highest score would be moderated. Only a sample is taken, not all scripts are moderated unless serious discrepancies are realized.

40. The principal is not involved in moderation. He/she would feature in if there is no one who is competent and help in getting the moderator from outside to assist. If he/she is a competent person in that subject, the principal may moderate. It would therefore not possible for the principal to see if the scripts were marked or not. He/she would rely on the report from the head of the departmental and the Deputy Principal.

41. The schedule is a product of assessment recorded for capturing in the system. Educators may only check if correct information was captured. After capturing the schedule would be generated, signed and be taken to the district office for approval. The district office would check if pass requirements in terms of the policy were met. The district office would only approve if the learners were correctly progressed. If there is a leaner that was according to the policy to be progressed and was not progressed, the district would not approve the schedule.

42. On page 34(A) the schedule was approved at the district by Niger Mokhwaripa. At the school it was signed for by the principal, the deputy principal and the HOD. All did not sign to confirm that moderation was done, but to confirm that the schedule was checked and verified.

43. It is a requirement as per the policy that assessment must be fair and in line with the level of the learner. Formal assessment must cater for different cognitive levels of the learners.

44. He referred to page 8 of R1 and testified that it is the Formal Assessment, English Home Language which was written on the 9th; 10th and 11th of November 2015. According to the time table (Page 6 of R1), on the 19th of November 2015, Grade 7 was supposed to write English Compression. The paper on page 8 of R1 was moderated Ms. Daewood. Page 10 of R1 shows that the leaner wrote the Formal Assessment on the 9th of November 2015. That is consistent with the Time-Table on page 6 of R1.

45. Page 16 of R1 the learner written wrote answers on the 19th November 2015 which correlates with the question paper on page 15 of R1 (Language Aspects in Context). After writing it was supposed to have been marked and recorded together with others.

46. Page 13 of R1 the script was also was not marked. It was supposed to have been marked out of 30 marks. If it was not marked, the learner was not supposed to have received marks for that assessment. Page 19 of R1 is an answer sheet for Maseketso Rakatsinyane, written out 50 marks and allocated for 1 hour and half. Page 19 of R1 shows that the leaner was responding to questions in page 20 of R1, dealing with Synonyms. Page 17 of R1 shows that the leaner was writing about a poem, “The Invisible War”, activity 5 of the question paper. All pages 16; 17;18 are scripts for Formal Assessment that was supposed to have been marked. In total, they counted 80 marks for English Home Language. If there were not marked, they would have impacted heavily on the learners progression. They count for 60% of the leaners’ final mark for progression. If such an amount of Final Exam marks was not there, there would have been little chances that the learner would progress to next grade.

47. Page 6(R1) emphasized that “All learners must be present for all exams. Absent learner will receive 0. A doctor’s letter is required if the leaner is absent from exam.”

48. Pages 150 to 157 of A shows that the leaner wrote on the 25th of November 2015. Formal Assessment was scheduled for 09 to 11 November 2015. Only the teacher can be able explain why the leaner wrote on another date other than the date on the Time-Table.

49. Page 25(R1) shows that the script of the leaner Afshi Ahmed was marked and was given 0 marks as he was copying the content. The script of Maseketso Rasekanyane; Bongimusa Mokhubi were not marked. Page 2 of R2, leaner no. 72 recorded 80%. Page 38(R1) is the answer sheet for Armeen Muhammed; page 45(R1) Ameen’s English Language in Context out of 50 marks means that he wrote for total of 80 marks. Page 43(R1) shows that the leaner wrote Research Essay on the 9th of November 2015; page 46(R1) the leaner wrote English November 2015 Examination on the 19th of November 2015 and all were not marked.

50. Page 25(R2) recorded that the leaner achieved 81% as an Exam Mark. If the marks were not written on the answer sheet, it appears that it was not marked. It is strange that the same leaner be recorded as having achieved 81% if that part of the work was not marked.

51. Previous question papers are normally used to prepare leaners for that year’s examination. The paper must be used as an Informal Assessment. It cannot be written on the same date of that paper on the Time Table. Leaners must also know that it is a previous year’s paper. It could not have been possible that leaners could have written a previous examination paper on the same day of the Final Examination.

52. All assessments must be guided and be in line with the School Assessment policy. They must be approved by the SMT’s to ensure that leaners are not overloaded unnecessarily. Page 38 to 38 (R1) were Formal Assessment which were given to the leaners to write. One for an hour and another for 1 hour and half.

53. The department encourages schools to make Deputy Principals SAT Coordinator. He/she must ensure compliance with the curriculum policies. Deputy Principals would therefore be expected to be always aware of policies, including Assessment Policy.

54. Under cross-examination, he agreed to have stated that he was responsible for assessment. He however, conceded that he does not know how examinations are broken up and do not know how marks are allocated. He also does not know how question papers are moderated; does not know that at the applicant’s school they had a book were they were recording question papers and moderations.

55. He agreed that page 6(R1) is an Examination Time-Table and that in terms of the Time-Table, learners were examined on English Prepare Speech on the 9th and 10th November 2015. He agreed that it wasn’t a written paper and that it is assessed according to a specific rubric system. He agreed that there could not have been any other examination on the days of the 9th, 10th and 11th November 2015 as all learners were examined on Prepared Speech.

56. He also agreed that Creative Writing is a Research Essay and that according to the Time-Table it was supposed to have been written on the 26 to 29th of November 2015. He also agreed that they are not marked as they are Prepared Speech.

57. He agreed that if the learner should be writing on any other day except the day stated on the Time-Table, it implies that he/she was absent on the date of such examination. He also agreed to have stated that a learner would only do that after producing a sick note from the doctor. He agreed to have not shown any sick note in the bundles of documents. He could not tell if Bogomusa had produced any sick note.

58. He agreed that page 138(A) is Assessment policy of the Department. In terms of that policy Formal and End of Year Assessment Task Term 4, Comprehension, Language and Literature paper must take 1 hour. He also agreed that in terms of the policy (page 141(A) it counts 40%. He agreed that page 38(A) Terms 4, November/December Formal Assessment English Home Language on the 19th of November 2015. He agreed that the paper accords all requirement of the department in terms of Time Duration, Marks and the date of examination. He however could not comment when it was put to him that the paper was the correct paper that was written on the 19th of November 2015. He however conceded that that in all probabilities, it shows that it was written on the 19th of November 2015. When shown page 150(R1), he agreed that it was written 11th of November 2015. He agreed that on that day, the Time-Table states that Grade 7s were writing Afrikaans Paper 1. He agreed that it could not have been possible that date, however argued that special arrangement could have been make for the leaner to write on that day. He conceded to have stated that if that would have to happen, sick note must be submitted and in that instance no sick note is available.

59. He agreed that after writing Exams learners do no leave but stays at school. He finally conceded that the papers that the respondent have shown could have been possible that they were given as part of classroom activities to keep the learners busy after writing an Exam as learning must continue. He agreed that page 125(A); page 15(R1) differs only on that one is written 2014 and the other 2015 and that if the one 2014 did not meet the requirements, then also the one for 2015 did not meet the requirements.

60. He could not deny that the practice at E.P. Baumann was that after setting a paper, the paper and previous papers are submitted to the moderator to ensure that the educator does not repeat the same examination papers every year.

61. Ms. Maseketso Innocentia Rakatsinyane testified as the third witness. The summary of her evidence is that he was 18 years of age; was a leaner in Grade 7 at E.P. Baumann in the year 2015.

62. The applicant was her English educator. She is the author of the paper in page 15 and page 19 of (R1). The paper was a Formal Assessment Term 4 of 2015. The paper was given to her as a Final Examination in 2015. She wrote English November 2015 Examination because it was what was written on the question paper.

63. She referred to page 15(R1) and stated that she was responding to question on page 19(R1.) On page 21(R1) she wrote 19 November 2015, English November 2015 as it was what was written on that question paper. It was her expectation that her answer sheet in page 16 to 18 would be marked and that she would pass the examination.

64. Page 6(R1) was an examination Time-Table and it is stated that on the 19th November 2015 they would be writing English. They were given text, read and answered the questions. She could not remember what time she wrote but what happened was that each time after writing an Exam, they would return to their classroom and prepare for the other subjects.

65. It is not possible that on that they could have written Page 16 to 18 of R1 as a class activity because if it was a class activity, it would have been written in the classwork books. Even if that was the case, her expectation was that it would be marked.

66. The length of the paper and the marks would depend on the amount of time they were expected to write the paper. On page 37 of A the activity was that they must read the three poems, Matilda, The Invisible War and The Reading Killer. Page 38 to 42 of A confirms that she has done all three poems in Grade 7.

67. Page 33 (A) is not the paper that she wrote as an Examination on that year. It wouldn’t be possible that she could have written it on the same day that she was writing an Examination. The Time-Table on page 16(R1) shows that on 9 and 10 November 2015 they were writing English Paper 1 (Prepared Speech)They would have been given topics, go and prepare at home and present them in the classroom. Page 16(R1) was what she wrote for 09 November 2015 Final Examination. On page 13(R1) she was writing a Research Essay on the 9th of November 2015. The paper was not marked.

68. Under cross-examination, she confirmed that on that year 2015, there were some disruptions at their school. She confirmed that according to the Time Table (page 16 of R1) on the 9th to 10th November 2015, they were writing/examined on Prepared Speech and that it would not been possible that other Exam paper could be written on that day. When others were presenting their Prepared Speech, others were given some activities to keep them busy. She confirmed that it could be possible that the same paper might have been those activities that were given when the teacher was busy with Prepared Speech.

69. She confirmed that according to the Time-Table on the 20th of November 2015, they were writing Natural Science and that it was the only paper for that day. She agreed that the Departmental Assessment Policy on page 138(A) states that Paper 2, Comprehension and Language Examination was supposed to be 2hr paper counting 40 marks (Page 141(A). She agreed that page 16(R1) paper says 1hr and 50 marks and that it was not according to Departmental Assessment Policy.

70. She confirmed that a paper on page 32 of A conforms to the Departmental Policy in respect of marks, duration as stated in page 138 of A. She agreed that she remembered exam paper on page 15(R1) because that was the only paper that was brought to her attention. She agreed that Mrs Randles was a strict and passionate English Educator who would not want to see learners idling. She agreed that it was possible that the paper on page 15 of R1 was given as an informal assessment in the class to keep them busy while the educator was busy with others. She confirmed to have seen the paper on page 18 of A before.

71. During re-examination she stated that while in Grade 7, she would not been aware of the requirements that the question paper must meet.

72. Ms. Dala Adelaide Manamela testified as the 4th witness. The summary of her evidence is that she is turned 18 years on the 26th of October 2020. She was a learner in Grade 7 in 2015. The applicant was her English teacher in that year.

73. The Examination Time-Table on page 16(R1) shows that on the 19th of November 2015, they were writing English Paper 2, Comprehension and Language. Paper 2 had only one paper. Page 53(R1) is the cover page that was issued each time when writing examination. It was given and she wrote her name, proceeded and wrote 19 November 2015 on page 54(R1). When writing on that paper, she was writing a Final Examination English Paper 2. She viewed it as an examination because they were told that they must prepare for it as per Time-Table that was given.

74. On that day they wrote only one paper, page 53 to 57 (R1). She remembered the three poems in on page 38 of A because she wrote about them in the examination. On page 54(R1) she was responding to the poem Invisible War (Activity 5). Activity 8 she was responding to the Comprehension.

75. She read the upper part of page 32(A) and testified that she read the poems that were attached to the question paper. She read page 133 to 136 and stated that she remembered writing the paper in on page 54(1) because it corresponded with her answers. She did not agree to have written two papers on that day.

76. She referred to page 135 of A, stated that page 136(A) were instructions and that in page 55(R1) is the summary of the poem Invisible War. Page 137 of A corresponds with the question paper that she wrote.

77. In comprehension a paragraph was given, given questions and answered by recalling from the comprehension. Page 53(R1) to page 57(R1) she was responding to the instruction. She does not know the paper on page 32 to 36 of A.

78. They were told by the applicant to prepare for the paper and wrote it in class on the 19th of November 2015 as stated in page 53 to 57 of R1. The expectation was that she would receive the marks for the work that she has done. If it was not marked, the marks she received on page 20 of R2 and page on page 20(R2) were fraudulent.

79. The examinations were mainly written in mornings and after writing, they would go back to their class and continue learning. If they were not writing they would be given classwork and other activities. If it was a classwork they would be written in their classwork books. They would not write it as assessment. In that case they were writing exams.

80. Under cross-examination, she agreed to have stated that paper on page 53(1) was the one she wrote as an examination on the 19th November 2015. She agreed that according to the Time-Table, they were writing/examined on Prepared Speech. When asked if it was possible that on that they could have written another paper, her respond was yes and when asked which one she said Research Essay. She however agreed that Research Essay was not stated on the Time-Table. She agreed that the paper she alleged to have written on the 19th November 2015 did not have Comprehension and that the one page 138(A) had Comprehension.

81. She agreed that Bongimuso wrote the same paper on the 11th of November 2015 and differs with her date. She could not tell if he was exempted/excused not to write on the 19th November 2015. She could not remember if she wrote anything on the 20th of November 2015, however agreed that the Time-Table states that they were writing Natural Sciences. She agreed that it was possible that they would go to Ms. Randles classroom on different days and times and that it was possible that they could be given same activity on different days and times as and when they go to her class. She also confirmed that it is possible that Bongimusa went to Ms. Randles’ class on the 12th of November 2015 and was given the paper on that day.

82. She agreed that the paper that she said she wrote did not have comprehension; was written 1 and half hours and counted for 50 marks. She agreed that the paper on page 32 is dated 19th November 2015; that the Time-Table stated also the 19th of November 2015; that the Departmental policy required that it be written over 2 hour. She conceded that the paper on page 32 of A, accords to the Departmental policy in all respects. She could not want to comment on the applicant’s version that the paper on page 32(A) is the paper that they wrote on the 19th of November 2015.

83. She agreed that during examinations, after writing their examination they continued learning, writing other activities and were not allowed to remain idling. She also agreed that there were times were they would write informal assessments which would be marked by exchanging books. She agreed that she cannot remember everything that she wrote in Maths and that year and that if it were to be given to her, her memory could be recalled. She also agreed that she could remember paper in page 32 of A because she was not shown the answer sheet.

84. She stated that she wrote the paper on 155(A) and it was her English Essay paper. She agreed that on the 12th of November 2015, the Time-Table states that they were writing Afrikaans. She agreed that Bongimusa wrote on the 12th of November 2015, a different date from the date in which she wrote and that she was not shown any sick note that could have exempted him to write on a different date.

85. She agreed that Afshi Ahmed wrote the same paper and was given a 0 mark(Page 25(R1). She agreed that it was not possible that Afshi could receive 73% on a final examination mark when he lost almost 30 on the paper that he received 0 marks. She could not comment when it was put to her that reason those papers that she was shown differed dates is that they were not examination, hence she, Maseketso and Afshi wrote on the different dates. She confirmed that all learners were writing the same exam on the same date.

86. In clarifying the commissioner she explained that the examination was written in the examination venue; invigilated by a different teacher other than a subject teacher; after writing they would return to their classroom and continue writing.

ARGUMENTS

87. Closing arguments of the respondent were received, filed with the ELRC and forms the official record of the arbitration proceedings. For the brevity of the award, I chose not to repeat them verbatim or in summary, safe to say that they were read and considered in this award.

Applicants’ case.

88. Ms. Shenaaz Randles testified. The summary of her evidence is that she started working in 1989, had a break and was re-appointed in March 1996. In 2015 she was a Deputy Principal earning R41 185.50 per month. The same year she acted as the Principal for the 3rd and 4th terms.

89. In 2016 she was charge for inciting learners and was found not guilty. That was for the disruption of the learning that Maseketso had testified about when saying that there was a protest at the school.

90. She then received another charge on the 26th of February 2019 (page 1 of R1) two years after she received Allegations of misconduct on the 7th of March 2017.

91. Page 6(R1) is an examination Time-Table for the Grade 7 in 2015. All learners wrote the examination according to the Time-Table. The only learner that she knows could not write all the papers was Mensoor who was hospitalised and went for heart surgery. As a school policy, her 4th term marks were given by calculating the average of 1st, 2nd and 3rd terms.

92. During November examination, Grade 6 and 7 were writing in the same venue. In the venue there were invigilators. Subject’s teachers would be collecting their examination question papers from the strong room. The question papers would be handed to the Principal and the Deputy Principal who would in turn give them to the invigilator; the invigilator would distribute the question papers to the learners and learners would start writing. Subject teachers were not allowed in the examination venues. The Principal and the Deputy Principal would move around the venue to ensure proper invigilation was taking place. There could be no way she would have distributed any English examination question paper in the venue as subject teachers were not allowed in venues.

93. On the 9th and 10th of November 2015, learners wrote English Paper, Prepared Speech. On that day it would not have been possible that learners could write any other Examination. On the 11th and 12th of November 2015, they were writing Afrikaans Paper 1. It would not have possible that the learners could have written paper on page 8(R1) as an Examination on the day.

94. The same paper that it is alleged that the leaners wrote as an Examination in 2015, could not have been a question paper for the English Home Language question paper for that year. The Departmental Assessment policy on page 138(A) outlined what the November 2015 exams would look like. Paper 1 was Oral Exam, Prepared Speech; Paper 2, was Comprehension and Language and Literature; Paper 3 was Writing, Essay Transaction Text for 1 hour. In 2014, the curriculum requirements as set out in page 141(A) were not yet applicable. They were still attending training and only implemented in 2015.

95. She has given the paper in page 8(R1) in her classroom as an activity to keep the learners busy while she was conducting Oral Assessment. Oral Examination was not a written exam. It comprises of Listening and Speaking. In the examination, she gave learners some topics to prepare at home a week in advance. On the day of examination, it would be done in Block Sessions and in classroom. Learners would then give their speeches, each one at a time. The teacher would be sitting at the back of the classroom assessing a learner using a Rubric system.

96. During Oral assessment, other learners needed to be kept busy. In keeping them occupied, the teacher would give activities, assignment and previous years’ papers. Page 15(R1) was a 2014 Examination question paper that was given to the learners the same way. It was not an examination but only an activity that was given to learners during Block Session to keep them busy while she was conducting Oral Assessment. It was a 2014 Examination question paper and dates were simply changed by her PA as per her instruction.

97. The paper on Page 32 of A does not correspond with the Departmental Policy as marks allocation was 40 marks. The Time-Table shows that on the 20th of November 2015, learners were writing Natural Sciences. It is not possible for the learners to write an examination on that day.

98. Page 15(R1) was not an examination. Bongimusa also wrote the same activity on the 25th of November 2015 and the Time-Table shows that on the 25th of November 2015, the learners were writing Technology. The reason for the differences of those dates is that learners were given the same activity each time they were coming to her class for Block Sessions.

99. Afshi’s also wrote the same paper on the 10th of November 2015 (page 25 of R1). It was also not marked. She only wrote 0/30 because Afshi was making noise and being naughty in the classroom. She reprimanded her and Afshi continued with her disruptions. She then went to her wrote those comments on her script in order to scare her. Afshli became worried and later she came to her crying. She (applicant) told Afshli that she should not be worried as the marks are not going to be considered for any progression as it was not an examination.

100. In 2015 the practice was that they were drafting question papers in line with the curriculum, the question paper together with the previous question papers were taken to the head of the department for moderation. If the paper is a replica of one of the previous question or did not comply with the assessment policy, the paper would be returned. The paper on page 15(R1) was not complying and it would not have passed that moderation process. If it were to pass that process, be written and marked, then Afshli’s answer sheet would have been one of those which a moderator would have wanted to moderate as it was the lowest marks, 0. Marks. If Ashli had written that paper as an examination, then her examination marks would have been severely affected. She would not have received 73% when she wrote the examination out of 70.

101. Under cross-examination she agreed that the school organogram did not provide for a PA for the deputy principal, however during re-examination she clarified that the post of the PA is not a Departmental post but was one of the posts which were created by the SGB and the incumbent was paid by the SGB. She confirmed to have instructed the PA to change the date on the question paper and also confirmed to have checked the changed question paper and its front cover.

102. She stated that is not in dispute that all the learners wrote the paper on page 15(R1), however argued that the question paper was not an Examination question paper and that they all wrote it in her class. She confirmed that Maseketso wrote on the 19th of November 2015 and also wrote Research Essay on the 9th of November 2015 and emphasised that it was not an Examination and that she wrote it in her classroom.

103. She conceded that all the papers were written Formal Assessment. She stated that after writing she took the answer sheets and put them in the learners Portfolio of Evidence. She conceded to have not marked the answer sheets. She agreed that in terms of the Departmental Assessment policy all assessments should be marked. She argued that it was not a Formal assessment but an activity that was given to them to keep them busy. She conceded to have not told the learners that the papers were not examination papers, however stated she did so because she wanted them to be serious when writing it.

104. She stated that on the 19th of November 2015, learners wrote those papers written English Comprehension. She stated that paper that was given to the learners had only section as taken verbatim from the 2014 previous Exam question paper. She stated that on the 19th of November 2015, all leaners in Grade 7(C), 34 in number, were writing English Language Comprehension and that all wrote the paper in page 154(A), Language Aspect In Context in her class room, not as an Exam but a class activity.

105. She conceded that the paper was not marked and argued that it was not an Exam paper but as a class activity. She agreed that during the year when leaners were writing class activities, they were doing so the Classwork books and that if they were to write a test or classwork they would not normally write Form Assessment. She agreed that learners would not ordinarily write Nov/Dec Examination when it was not.

106. She denied to have marked Afshli’s paper but only wrote 0/30 and made a comment. When put to her that that was what was supposed to have been done to all learners, she stated that she was doing Oral Assessment and that it would not have been practical to do so to all learners.

107. She agreed that it would not have been possible for the moderator to moderate all the answer sheets; that that it would only happened when they were discrepancies and that in 2015 there were no discrepancies.

108. She agreed that if there were valid reason for any learner not have written Exam on the date stated on the Time-Table, it would have been known by the subject teacher, the Deputy Principal and the Principal. She however argued that there was no reason given for Bongimusa and that he wrote on the 25th of November 2015 as it was the day that he came to her class.

ARGUMENTS

109. Closing arguments of the applicant were received, filed with the ELRC and forms the official record of the arbitration proceedings. For the brevity of the award, I chose not to repeat them verbatim or in summary, safe to say that they were read and considered in this award.


ANALYSIS OF EVIDENCE AND ARGUMENT:

As to whether the applicant’s dismissal was procedurally fair

110. The applicant was dismissed and she contended that her dismissal was procedurally unfair. She alleged that the respondent has denied her access to view documents that were used in the disciplinary hearing. She also contended that the respondent allowed her to view some documents prior to the arbitration proceedings, however was refused to make any copy of to take a photo of any of those documents.

Whether the applicant was not afforded sufficient opportunity to view the documents

111. The applicant submitted in her closing that prior to the arbitration proceedings she requested to view certain documents which were used in the disciplinary hearing as she did not have an opportunity to view all evidence/documents for allegations leveled against. The respondent acceded to her request. She also submitted that when she went in there, she was refused the copies or take any photo of it. There was no evidence led to that effect. The process which was undertaken was not the conduct/omission in the conduct of the procedure leading to her dismissal but a process to the arbitration proceedings. It is not an issue of the fairness of the procedure leading to her dismissal.

112. It should be noted that the arbitration proceedings are held in terms of the Rules of the Council. Ordinarily if there was any document that she felt was important and she was unreasonably denied access of copies thereto, she could have applied for subpoena of the document.

113. In the procedures leading her dismissal, no evidence was led by the applicant to the effect that she requested to view any of the documents and the respondent or the chairperson of the hearing refused her an opportunity to do so. The applicant did not allege the same at the arbitration. For that reason I do not find that the respondent has refused her an opportunity to view the documents or evidence it the disciplinary hearing that could render her dismissal procedurally unfair.

Time lapse and waiving of the right to proceed with disciplinary proceedings

114. The applicant also contended that her dismissal is procedurally unfair as there was an unreasonable time lapse from the time of alleged misconduct and disciplinary proceedings that led to dismissal and as such, the respondent should be viewed to have waived its rights to institute disciplinary proceedings.

115. It is common cause that the applicant was charged for misconduct that is alleged to have taken place in November 2015. It also common cause that the applicant was charged on the 26th of February 2019. It is also common cause that prior to the charge sheet, on the 7th of March 2017 the applicant received the letter from the respondent informing her of its intention to institute a disciplinary hearing against her. It is common cause that the disciplinary hearing finally commenced on the 4th of March 2019.

116. I considered the respondent’s evidence of Mr. Selowa and his admission that the time lapse from alleged offence to the final charge is more than two years. I also considered his admission that the first letter, calling upon the applicant make submissions as to why she should not be charged for the allegation of the November 2015 was received in February 2017. There was no explanation as to what was happening during the period January 2016 to February 2017. The conclusion that could be reached is that the respondent had not yet been aware of the alleged incident.

117. I also considered Mr. Selowa’s evidence that after five days from the letter dated the 7th March 2017, the respondent could have proceeded and charged the after the expiry of 5 days without the applicant’s representation. I also considered his evidence and arguments that he managed discipline and disputes for the 15 District Offices in Gauteng Province and also for Head Office dealing with more than 400 cases per year with only 17 members of staff. I also considered the respondent’s argument that with regard to the applicant’s case the respondent complied because she was charged and served with the charged sheet on 26 February 2019 and received her disciplinary hearing outcome on 10 July 2019. I considered Mr. Selowa’s evidence that the delay was as result of the case being handled by the first investigating officer Mr. Zato who in turn resigned in 2018 and was given to another investigator from which the applicant finally received her charge sheet on the 26th of February 2019. He agreed that the case law that he referred to makes length of delay an important issue to be considered when instituting a disciplinary hearing.

118. I closing the applicant argued that case in Stokwe v Department of Education, Eastern Cape and others CCT 33/18 07 February 2019 dealt with the factors that must be considered in determining whether delay is reasonable or not. He submitted that the two years delay of the respondent is unreasonably excessive; that there was no reason advanced by the respondent as the allegation that the applicant was required to make representation on are the same and therefore no changes therefore no material cause; that the applicant had suffered a material prejudice as at the commencement of the hearing, most evidence had vanished or destroyed by the respondent; and lastly regarding the seriousness of the allegation, the Concourt stated it does not mean that serious offence must be dealt with, no matter what. It was then submitted that the respondent’s delay match exactly what the court found as an unreasonable delay.

119. In the case dealt with above, the respondent had taken five years to finalise an appeal. In this matter it took two years to finalise a contemplated disciplinary hearing.

120. In that same case law the Concourt also said that it must also be considered whether the employee has taken steps in the course of the process to assert his or her right to a speedy process. In other words it would be a factor for consideration if the employee himself or herself stood by and did nothing. It was argued by the respondent that the applicant had never taken any steps to assert her right or follow-up and for that factor alone she cannot rely on that those factors.

121. There is no evidence to the effect that the applicant ever taken any steps to assert her rights or initiated any process to a speedy process. The issues were also not argued before the chairperson of the disciplinary hearing. The main cause of the dispute is the outcome of the disciplinary hearing. To the effect that arbitration is a hearing de novo does not mean that this kind of legal questions should be raised at arbitration for the first time. Ideally, the employee must raise them with the chairperson of the hearing and the chairperson must make a ruling. It is that ruling that arbitrator must determine whether it was fair for the employer or the chairperson to have acted in the manner that he/she did.

122. For that reason, I find that the respondent cannot be viewed to have waived its rights to continue with the disciplinary hearing.

The appeal and its lateness

123. The applicant contended that her dismissed was emitted by the chairperson of the hearing, the respondent lodged an appeal and the Appeal Authority subsequently substituted the chairperson’s sanction with that of a dismissal. It is the applicant’s contention that the appeal was out of time and was not accompanied by condonation and also that the substitution of the sanction was unfair and unlawful.
124. It is common cause that the chairperson of the disciplinary hearing had issued the applicant with a sanction short of dismissal, three (3) months suspension without pay. It is also common cause that the outcome of the hearing was dated the 31st of May 2019 and handed over to the applicant on the 10th of July 2019. It also common cause that the applicant did not appeal against the decision. It is also common cause that the respondent filed its appeal with the Appeal Authority on the 20th of January 2020. It is common cause that in terms of Schedule 2, Disciplinary Code and Procedures for Educators, issued in terms of the Employment of Educators Act 76 of 1998 (as amended), an appeal must lodged within 5 days of receiving final outcome of the disciplinary hearing. If the applicant were to appeal, her appeal was supposed to have been filed on or before the 15th of July 2019. It was not clear as when did the respondent receive the outcome of the hearing, however it is not in dispute that the respondent’s appeal was outside the 5 days period.

125. It is also common cause that the appeal was not accompanied by a condonation application. On the letter that was sent to the applicant it was stated, “Should such a copy of your appeal not be received within the stipulated time-frame, the sanction will automatically be implemented”.

126. I considered the respondent’s evidence given by Mr. Selowa that the Code does provide for condonation on appeal and that the Appeal Authority has discretion to accept or not to accept the Appeal. He however conceded that from his emphasis of the word MUST in the Code regarding the sanctions, if it appears again on any paragraph, it would also mean that there would be no exception. I also considered the respondent’s argument that the appeal was filed because there was a genuine reason to appeal.

127. I considered Mr. Selowa’s evidence that the respondent filed an appeal because the Chairperson of the hearing has erred by deviating from the sanctions provided in terms of section 17(1) charges. I considered his evidence that the chairperson after finding the applicant guilty of section 17(1) offence, he had no discretion except to dismiss the employee as the section says ‘MUST’ meaning that dismissal is peremptory.

128. Mr. Selowa during cross-examination agreed that the principles laid down in Sidumo requires that before dismissing an employees, certain circumstance must be taken into consideration, including the length of service, clean disciplinary record, the effect of dismissal to the employee and whether further training would not help to prevent further infringement. He also agreed that the Code also acknowledges that Item 8 of the Code of Good Practice issued in terms of the Labour Relations Act is implied in the EEA Code in as far a discipline is concerned. He also agreed that the Code of Good Practice Dismissal, issued in terms of the Labour Relations Act also emphasises the importance of taking account the mitigating and aggravating circumstance before meting a sanction of a dismissal.

129. In the MEC for Education for the Province of Kwaulu-Natal v Education Labour Relations Council (D537.07) [2011] ZALCD 24 it was held that, “Any finding of guilty against an educator under section 17(a) to (f), whether in court or at an internal disciplinary inquiry cannot be said to automatically lead to that educators’ dismissal”. The same question was also dealt with in Stander v Education Labour Relations Council [2011] 4 BLLR 411 (LC) where the court disagreed with the commissioner who upheld a dismissal as an appropriate sanction for an educator who transgressed the provisions of section 17(1) (d) without due regard to factors that include non-denial, provocation and no prove of breakdown in employment relationship.

130. Looking at the two cases above, I do not find that the respondent had no compelling reason to appeal against the chairperson of the disciplinary hearing. The two cases above show that dismissal is not a peremptory sanction for all contraventions in section 17(1). Other factors must also be taken into consideration before dismissing an educator.

131. The applicant argued that even if the Code does not provide for condonation on appeals, the common legal practice is that if anyone in law is late in filling any application, such an application must be accompanied by a condonation application. It was also argued that if condonation application is not filed, then the words “Should such a copy of your appeal not be received within the stipulated time-frame, the sanction will automatically be implemented” must apply also to the respondent. So if the sanction of the disciplinary hearing chairperson is to be implemented, then the outcome of the appeal is null and void.

132. For the reason that the outcome letter had stated that “Should such a copy of your appeal not be received within the stipulated time-frame, the sanction will automatically be implemented” I do not see any reason that the same should not be applied the respondent. As to whether the outcome should found null and void, would be only the power of the Courts. Mine is to determine whether a particular conduct is procedurally and substantively fair. For that reason, I find that the finding above, would only be applied in determining procedural fairness and as to the appropriateness of the sanction.

133. In that way I find that the respondent has failed to comply with its Code.

134. Having found that the respondent did not have a compelling reason to appeal against the chairperson’s findings; found that the respondent has failed to comply with its code in respect of appeal, I therefore find that the dismissal of the applicant is procedurally unfair.

As to whether the applicants’ dismissal is substantively fair


135. The applicant contended that her dismissal was substantively unfair as she was not guilty of the contraventions as alleged in the charge sheet. As to whether the applicant’s dismissal was substantively fair depends on whether I find on a balance of probabilities that the respondent has succeeded in discharging its onus to prove that the applicant is guilty of misconduct as alleged in the charge sheet.

136. The applicant also avers that should it if be found that she is guilty, she would further contend that her dismissal is unfair because the respondent failed to apply its rules of discipline consistently, by not having charged other employees who were accomplices to the offence and others who did the same thing that she is alleged to have done, and finally also submitted that dismissal is not an appropriate sanction under the circumstances.

Whether the applicant is guilty of contravention alleged.

137. The applicant was charged and dismissed for allegedly committed an act of corruption in regard to examination: The charge was stated as follows: “It is that on or around November 2015, you committed an act of corruption in regard to Grade 7 November Examination: English Home Language Formal Assessment at E.P. Baumann Primary School in that you gave learners fraudulent marks. In view of your actions, you are thus charged with misconduct in terms of Section 17(1) of the Employment of Educators Act 76 of 1998 as amended.”

138. It is common cause that this charge came as a result of allegations that in November 2015, the applicant has given learners an examination in English Home Language but did not mark the examination and wrote marks on the schedule which were not what learners achieved from that examination.

139. The applicant denied to have committed any act of corruption regarding an examination. She agreed to have given the learners the assessment that is alleged to be a Formal assessment in November 2015 and to have not marked the answer sheets of the learners. She however contended that it was not an examination or a Formal assessment as alleged by the respondent. I was therefore required to determine whether the paper was written as an Examination for English learners at E.P Baumann Primary School in 2015. If found so, I will further determine whether the applicant forged the marks that were allocated to the learners in November 2015 schedule.

140. The onus of prove rested with the respondent. In trying to discharge its onus of prove, the respondent brought in four witnesses who testified orally. I considered the evidence of Mr. Moabelo an Assessment Official for Senior Phase and that he administers Informal and Formal Assessment activities. Specifically considering his evidence that Formal activities are given according to subject policy and that they may be given as written tests and done mainly on monthly and quarterly basis. That it would be marked and moderated; marks are recorded and progress report would be issued at the end of a term.

141. I also considered his evidence that the examination moderation, normally only a small percentage of 10% of the answer sheet taken as follows: two sheets from the lowest mark; two middle achievers and two from the highest score would be moderated. He emphasised that only a sample is taken, not all scripts are moderated unless serious discrepancies are realized.

142. I considered his evidence that page 8 of R1 it is the Formal Assessment, English Home Language which was written on the 9th; 10th and 11th of November 2015; that the paper in page 8 of R1 was moderated Ms. Daewood; Page 10 of R1 that shows that the leaner Maseketso Rakatsinyane wrote Formal Assessment on the 9th of November 2015 which is consistent with the Time-Table on page 6 of R1. He however during cross-examination he agreed and that conceded that according to the Examination Time-Table, on the 9th to the 11th of November 2015, learners were examined on English Prepared Speech. He also conceded that Prepared Speech wasn’t a written paper and that it is assessed according the rubric system. He also conceded that there could not have been any other examination on the days of the 9th, 10th and 11th November 2015 as all learners were supposed to be examined on a Prepared Speech.

143. I considered also the evidence that was given by learner Ms. Maseketso Rakatsinyanw that she wrote the paper in the class given by the applicant. I also considered her concession that it could be possible that the paper might have been given as a classroom activity while the teacher was busy assessing prepared Speech. The same as Ms. Dala Manamela who also finally conceded that it is possible that the same was written as a classroom activity.

144. The applicant’s evidence that I took into consideration is that Final Examinations are written in the designated exam rooms; moderated by the different person other than the subject teacher; that the subject teacher gives the question papers to the invigilator and that the subject teacher was not allowed to invigilate own subject. The evidence was also supported by Maseketso and Dala and was never disputed by the respondent. If that was the case, then it would not have been possible for the learners to have written the paper that was shown as an examination paper.

145. It is therefore more probable that the learners were given the question paper as a class activity, but not an examination. I find it more probable that the teacher was giving it to keep the learners busy while conducting assessments for Prepared Speech.

146. I further considered Moabelo’s evidence that Page 16 of R1 shows that the learner Maseketso wrote answers on the 19th November 2015 which correlates with the question paper on page 15 of R1 (Language Aspects in Context); that after writing, it was supposed to have been marked and recorded. I also considered his evidence that on Page 19 of R1 is an answer sheet for Maseketso Rakatsinyane, written out 50 marks and allocated for 1and half hour; that Page 19 of R1 shows that the leaner was responding to questions in page 20 of R1, dealing with Synonyms; that Page 17 of R1 shows that the leaner was writing about a poem, “The Invisible War”, activity 5 of the question paper; that pages 16; 17;18 are all scripts for Formal Assessment that was supposed to have been marked; combined together counted 80 marks for English Home Language. He however conceded that the structure of paper; its marks and time allocation do not meet the requirements that were required by the Department as per Assessment Policy.

147. I considered the applicant’s evidence that examination were written in the examination room and invigilated by another teacher other than the subject teacher. I considered the applicant’s evidence that the paper in page 19(R1) was not an examination but the classroom activity that was prepared and given to learners, to keep them busy when she was conducting oral assessments. I also considered her evidence that other learners wrote on different dates because learners were going to her class on different days.

148. I considered that Maseketso already conceded that they were given the papers in the applicant’s presence, that it is possible that the papers might have been given as classroom activities to keep the busy. For that reason, I do not find that the paper on page 19(R1) was not an examination question paper.

149. I considered further that Page 13 of R1 is another script for Maseketso that was not marked; that it was supposed to have been marked out of 30 marks; that if it was not marked, the learner was not supposed to have received marks for that assessment. As also found above, I effectively find it improbable that page 13 of R1 could be an Examination question paper.

150. As to whether the applicant could be guilty of providing learners with fraudulent marks I considered Mr. Moabelo’s evidence that if all those papers were not marked, they would have impacted heavily on the learners progression as they counted 60% of the leaners’ final mark for progression and that if such an amount of Final Exam marks was not there, there would have been little chances that the learner would progress to next grade. The applicant’s evidence is that Prepared Speech was scored according to a specific Rubric system. This was never denied by the respondent.

151. I also considered the applicant’s evidence that the November 2015 examination that was written by the Grade 7 learners is the one that is on page 32 of A. All of the respondent’s witnesses conceded that the paper conforms to the requirements of assessment as provided in the Departmental policy. I also considered her evidence that the paper was marked, and that the same marks were recorded on the schedule. I considered her evidence that the marked answer sheets were at the school after an examination. There was no witness from the respondent to testify contrary to this version. Ordinarily when this kind of allegations comes, the employer must conduct an investigation. It is only the investigator who went to establish facts when they were still fresh, who can assist in giving the correct state of the affairs when he visited the site. For that reason, I do not find that the respondent has succeeded in proving on balance of probabilities that the applicant has given the learners some fraudulent marks.

152. Having found that the paper that is said to be unmarked was not an examination paper, also found that the respondent has failed to discharge its onus to prove that the marks that were given to the learners were fraudulent marks, I effectively find that the respondent has failed to prove on balance of probabilities that the applicant is guilty as charged. The dismissal of the applicant is for that reason found to be substantively unfair.

153. Having found as above, it is not necessary to deal with the questions around parity principle and appropriateness of sanction.

154. The dismissal of the applicant was found both procedurally and substantively unfair. The applicant prayed for re-instatement. There was no evidence led to the effect that re-instatement of the applicant is not practically possible. For that reason, I find re-instatement as an appropriate remedy.







AWARD

155. The dismissal of the applicant, Shenaaz Randles is found both procedurally and substantively unfair.

156. The respondent Department of Education-Gauteng is ordered to re-instate the applicant back to her employment on same terms and conditions or terms and conditions that are no less favourable than the ones applied before her dismissal.

157. Their re-instatement is retrospective from 23rd of January 2020, the date immediately after the applicant’s dismissal. The applicant must report for duty on or before the 15th of June 2021.

158. As a result of the retrospective nature of their re-instatement, the respondent is further ordered to pay the applicant the amount of R617 782.50 [Six-Hundred and Seventeen Thousand, Seven Hundred and Eighty Two and Fifty Cent] as backpay amount that the applicant would have received as a salary from the date of her dismissal until the date of re-instatement.

159. The amount referred to above, is subject to statutory deductions and must be paid to the applicant on or before the 30th of July 2021.


Ramadimala Jacky Mateta



Sector: