ELRC644-20/21 EC
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ELRC716-20/21 LP
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Award Date:
05 October 2021
Commissioner: M.P.SHAI
Case No.: ELRC716-20/21 LP
Date of Award: 05 October 2021
In the ARBITRATION between:
MISHACK MATAMELA SIKWENI
(Union / Applicant)
DEPARTMENT OF EDUCATION LIMPOPO
(Respondent)
Union/Applicant’s representative: H. Tshikovhi
Tel: 015 8801153
Email: monyepaomtincattorneys.co.za
Respondent’s representative: Mr. M.Mattou
Tel: 0721482349
Email: MatlouMM@edu.limpopo.org.za
DETAILS OF HEARING AND REPRESENTATION
1. The matter was heard on the several days ending on the 9th September 2021 via online media.
2. Both parties were present. The employee, Michack Matamela Sikweni was initially represented by Mr. Kgatla and later by Mr. H. Tshikovhi of Tshikovhi Incorporated, whereas the employer, Department of Education: Limpopo was represented by Mr. Makgoba Matlou, its Employee Relations specialist.
3. The proceedings were digitally recorded.
4. At the end of the proceedings, both parties filed closing arguments and same were taken into account in arriving at conclusions herein.
ISSUE TO BE DECIDED
5. I am called upon to determine whether the dismissal of the employee is fair or not. If I find that the said dismissal was unfair, I will determine an appropriate remedy for him.
BACKGROUND TO THE ISSUE
6. The employee Mr. M.M.Sikweni was employed as an educator for 24 years and at the time of his dismissal, he was attached to Tshikola Secondary School. The employee was dismissed following a disciplinary hearing wherein he was charged of:
CHARGE 1
You contravened the provisions of Section 18(1) (1) of the Act in that between January 2019 and March 2019 or at any period incidental thereto, at or near Tshikota Secondary School, you poorly or inadequately for reasons other than incapacity in that:
COUNT 1
You failed to mark Social Sciences (History) Grade 8.
COUNT 2
You irregularly or wrongfully marked History Grade 10.
COUNT 3
You irregularly or wrongfully marked History Grade 11.
COUNT 4
You irregularly or wrongfully marked History Grade 12.
COUNT 5
You failed to submit Life Orientation Grade 9 for moderation.
COUNT 6
You failed to submit Social Sciences (History) Grade 8 for moderation.
COUNT 7
You failed to submit Social Sciences (History) Grade 9 for moderation.
COUNT 8
You failed to submit Social Sciences (History) Grade 10 for moderation.
COUNT 9
You failed to submit Social Sciences (History) Grade 11 for moderation.
COUNT 10
You failed to submit Social Sciences (History) Grade 12 for moderation.
COUNT 11
You failed to draw subject programme assessment.
CHARGE 2
You contravened the provisions of section 18(1) (ee) of the Act in that between January 2019 and March 2019 or at any period incidental thereto, at or near Tshikota Secondary School, you committed an act of dishonesty in that:
COUNT 1
You allocated or submitted marks for Social Sciences (History) Grade 8 without having marked the scripts.
COUNT 2
You allocated or submitted marks for Grade 9 Life Orientation without having marked the scripts.
CHARGE 3
You contravened the provisions of section 18(1) (1) of the Act in that between January 2019 and March 2019 or at any period incidental thereto, at or near Tshikota Secondary School, you refused or failed to submit your class register for administration as requested by the Management and therefore, you failed to carry out a lawful order or routine instruction without just reasonable cause.
7. He was found guilty of all charges and their counts save for count 2and 3 of charge one. Charge 3 was withdrawn.
8. It is this dismissal that is at issue herein.
9. During the opening statements, Mr Kgatla indicated that the employee contest both substantive and procedural fairness. With regard to procedure, the defect lies therein that the employer took too long to before instituting the disciplinary hearing. Secondly, the employee did not plead guilty to the charge.
SURVEY OF EVIDENCE FOR THE EMPLOYER
MR HLAKAYISELA SHIVAMBO TESTIFIED UNDER OATH AS FOLLOWS
10. He is the Assistant Director Labour Relations at the employer. Amongst his responsibilities is the conducting of disciplinary hearings. He was the chairperson of the employee’s disciplinary hearing. At the hearing, the charges were read to him and he pleaded guilty. He consequently found him guilty as charged.
11. He asked the parties for mitigating and aggravating factors. In the end, he recommended dismissal of the employee. The employee was represented by SADTU official. In the hearing he never spoke to this official separately.
MR NETSHIOMBANE PHITHANI PATRICK TESTIFIED UNDER OATH AS FOLLOWS
12. He is employed as a Labour Law Officer, and currently acting as assistant director in health and Wellness Section.
13. He investigated this matter and made a report. He can’t remember the date on which the matter was investigated but it was around 2019. He further drafted the charges and initiated at the employee’s disciplinary hearing. The matter took time to investigate as the relevant educator was no longer working at the relevant school.
14. The employee was represented by SADTU official at the disciplinary hearing and he pleaded guilty to the charges, thus 1 and 2, whereas charge 3rd was withdrawn. The charges were serious as they were Section 18 misconduct and involved dishonesty. His finding was that he did not mark some of the learning areas and not submitted certain learning areas for moderation.
15. Page 44 of bundle B contains the mitigation by the employee signed by one Ramango, a SADTU official and the employee’s representative. Paragraph 1 thereof shows that he pleaded guilty as aforesaid.
16. The employee was teaching social sciences grade 8 – 12. With regard to charge one, page 17 of the same bundle shows that it was Mr Bale who marked the scripts for grade 8 social science. That is so because it was not marked.
17. With regard to count 4, the employee irregularly and wrongfully marked grade 12 social science, history part. For example he gave the learner 32 of 100 but when the script was marked the learner receive 42 out of 100 marks.
18. On count 5, page 33 shows that a mark was given to a learner but the script not moderated. The employee is the one who was offering the learning area.
19. He can’t remember when he submitted the report about the matter. The period of investigation depends on the complexity of the misconduct and it may take long. Besides, there was a covid-19 pandemic.
20. The relationship between the employee and the employer has become intolerable. Four educators were charged, but the difference with the employee was that he was charged of a misconduct involving dishonesty.
21. The purpose of moderation is to check whether the paper is marked correctly. If moderation gives 5 marks more it is regarded as irregular. In so far as count 5 is concerned, the employee was asked to rectify but failed to do so. He however can’t recall if the employee wrote a letter to say that he was preparing a funeral.
MS TSHIFHIWA RICHARD MABASHA TESTIFIED UNDER OATH AS FOLLOWS
22. He is employed as a school Master by the employer at Tshikota Secondary School.
23. The employee reported to Mr Mpilo and Mr Leshabane as HOD’s. To Mr Leshabane, he was reporting in respect of Life Orientation as he was offering the learning area from grade 10 – 12. He was reporting to Mr Mpilo in respect of Social Science, history grade 8 – 12.
24. With regard to count 1, the employee failed to mark history grade 8. It was marked by Mr Bale and Mr Godfrey Masethle. They were requested to do so after discovering that the employee did not mark it. This was after the school failed to issue results and the parents were complaining. At page 17 bundle B is a social science script for grade 8 for term 1, it shows it was marked by Mr Bale. The same as at page 21. With regard to count 4 pages 23 and 28, its grade 12 scripts for social science/ history marked by the employee. At page 22 the employee gave the learner 22 out of 100 marks, but one Seleka remarked it and gave the learner 53 out of 100 marks. When he was asked to come to the school to rectify the defect, he said he won’t come as he had a funeral at home. He however, told them that he left the scripts in the cardboard and it was found that they were not marked.
25. With regard to count 4, the learners had come to him to complain that the marks given to them are not theirs because they wrote very well. Page 26 is a Grade 12 script. The employee gave the learner 48 out of 100, but the external marker gave the learner 58 out of 100 marks.
26. With regard to count 5, after checking the schedule, there were gaps, further that there were no documents to back up the marks. When he asked the employee, he said they did not write, but they were allocated marks. When he asked him to do damage control he did not come to school. The HOD also confirmed that he did not see the mark sheet and the scripts thereof.
27. Page 30-33 are Grade 9 Life Orientation scripts. The employee was responsible for the learning area. The scripts were marked by student teacher Muthorwana. It was marked after reopening of the school.
28. In respect of count 6, he testified that on investigation and when he asked the HOD to bring the mark sheet and scripts the response was that the employee did not submit them to him. With regard to count 7 he testified that he got the information from the HOD.
29. With regards to failure to submit scripts and mark sheets for moderation (count 8-10), the information he received from the HOD was that they were not submitted to him. This delayed the process of issue results and caused friction between the school and the parents.
30. The purpose of compiling subject assessment program is to keep parents and learners aware when the assessments will be written. The employee did not submit one (count 10). The HOD had to do one because of this failure.
MR FANUEL LESHABANE TESTIFIED UNDER OATH AS FOLLOWS
31. He is employed by the employer as an educator and holds the position of HOD at Elim Secondary School. In 2019 he was attached to Tshikota Secondary School where he held similar position. He was supervising commercial stream and three educators reported to him, it was Mr Sathekge, Mafela and Sikweni, the employee. The employee offered Life Orientation and same was in his stream.
32. He did not moderate his work during the 1st quarter of 2019 because he did not submit any. The employee was a difficult person to work with; he would just not comply with any directive. There was no bad blood between them.
33. With regard to count 5 of charge 1, he testified that the schedule was submitted to the principal on the closing day. Some learners had marks for Life Orientation, others not. He did not moderate it. He does not know who moderated it.
34. The scripts were found in the staff room but not marked. The employee was supposed to have marked them, and he did not give reasons why he did not mark them.
35. Page 31-33 of the bundle contains Life Orientation Grade 9 scripts. The employee should have marked them. He did not. They asked Ms Muthorwana to mark them and he moderated them.
36. With regard to charge 2 count 2, he testified that the principal discovered that they were not marked. On the schedule the other learners had marks whereas others did not have. He does not know where the marks came from. What he knows is that learners cannot be allocated marks if the scripts are not marked.
37. This type of behavior is unacceptable and he would not like to work with such a person. He is non-compliant and uncooperative.
38. On charge 2 count 1, he testified that the employee had failed to draw an assessment program. If he drew one he will have seen it. It could not have been submitted to Mr. Mpilo but to him, as he was the one who supervised Life Orientation.
39. He had earlier reported to the principal that Life Orientation did not come for moderation. When he asked him about it he said he was busy with other tasks.
40. Under re-examination, he confirmed that only scripts and mark sheets are submitted for moderation (charge 2 count) that Life Orientation Grade 9 was not marked and it was the employee who should have marked it.
MR MUVHANGO MARCUS MPILO TESTIFIED UNDER OATH AS FOLLOWS
41. He is employed as an HOD by the employer and stationed at Tshikota Secondary School. During 2019 he was supervising Social Science and had 6 teachers under him. The employee was one of them. The employee offered Social Science – History Grade 10-12. He was an uncooperative educator. He did not enjoy working with him as he did not want to take orders relating to work. Before he submits he would have requested several times, and would submit late his work most of the time.
42. With regard to charge 1 count 1 he testified that the scripts were marked by Mr Bale. They are to be found at page 17-20 of bundle A. They are scripts for History Grade 8. He gave the employee the memo for marking purpose. He never said the memo had flaws. His actions resulted in disturbances at the school.
43. Page 11 of bundle A contains scripts for History Grade 12. The employee marked them irregularly. If students are not given the correct marks they may fail the subject. For example at page 22 the employee gave the learner 12 out of 100 marks, whereas Seleka gave the learner 53 out of 100 marks. At page 23 the employee gave the learner 32 out of 100 marks, whereas Seleka marked and gave the learner 42 out of 100 marks and the curriculum advisor gave the learner 38 out of 100 marks. Difference between Seleka and the employee is 10. This is a serious problem. The difference between Seleka and the advisor is acceptable. At page 24 the employee gave the learner 20 out of 100 marks, which is a difference of 7 out of the 100, which is a difference of 7.
MS OLIVIA RASWISWI TESTIFIED UNDER OATH AS FOLLOWS
44. She is employed as an administration clerk at Tshikota Secondary school. One of her duties is to prepare schedules. The procedure is that she would receive the mark sheets from the HOD. The HOD would have received the scripts and the mark sheets from the teachers. During the 1st quarter of 2019, she received the mark sheets as per page 52 from the employee. The employee told her that Mr Mpilo asked him to submit directly to her and she then entered the marks. The same happened with regard to page 54. All the mark sheets submitted by the employee were not moderated.
45. Under cross-examination she confirmed largely the above evidence. She however did not confirm with Mr Mpilo if what the employee said was true or not.
MR GODFREY BALE TESTIFIED UNDER OATH AS FOLLOWS
46. He worked at Tshikota Secondary School and he is a teacher. He marked the scripts at pages 18, 19, 20 and 21. The employee was supposed to have marked them as he was offering the subject. He was asked by Mr Mpilo to mark them. He was given the scripts and the memorandum. He did not notice anything wrong with the memo. After marking he returned the memo and the scripts to Mr Mpilo. Under cross examination he explained that the scripts above were not complete, they are only the face of the scripts.
SURVEY OF EVIDENCE FOR THE EMPLOYEE
MR MISHACK MATAMELA SIKWENI TESTIFIED UNDER OATH AS FOLLOWS
47. He was employed by the employer for twenty four (24) years as an educator. He majored in History and Geography, and has taught History ever since.
48. Mr. Mpilo joined them while they were still at Masedi Combined School. Initially he was humble but three months on and after one meeting, Mpilo referred them as spoilt brats and said the school needs to be overhauled and that they shall report to the circuit office and shall forfeit salaries and pension. He approached him to withdraw his words.
49. His problem started with his failure to attend the meeting of 21- 25 March 2019. He could not attend the meeting as he was preparing the funeral and accordingly informed the principal. Later they were asked to report at the circuit office, where their conditions were not good.
50. At the disciplinary hearing he did not plead. He had brought his legal representative Mr. Makhado. After he was not allowed he became an observer and was represented by one Patricia Ramango, a SADTU official. The latter pleaded guilty on his behalf.
51. He was not aware of the remarking of his subject. No one informed him.
52. Page 15 and 16 are charges that he received while at the circuit office.
53. With regard to charge 1, count 1, he denies the charge. While he admits that he did not mark the scripts, the memo given to him was wrong. He told Mr. Mpilo and the principal. They both agreed with him. He told Mr. Mpilo that he had already marked 20 scripts. Mr. Mpilo said he must put them aside and that the correct memo shall be made available on reopening. It is not true that the two are not aware of this. Page 18 bundle B is a script for Grade 8, he agrees that Mr Bale marked it. Page 20 does not contain a full script. He had requested a full script but did not get same. It is the same with page 21. Page 22 also is a cover page, there is no justification for marks given and could be the result of a rewriting. Mr. Bale’s marking may not be good since he does not offer the subject.
54. With regard to count 4, the marks are allocated without showing how they were accumulated. At the hearing, he was shown no irregularity. The same applies to page 23 and 24.
55. With regard to count 5, he submitted the required documents to Mr. Leshabane for moderation. The destroyed schedule would have the required marks. Further that, he was not shown the 2nd schedule.
56. He does not know who allocated the marks at page 30-33 of bundle B. this is Grade 9 Life Orientation. It could be a rewritten paper. He was not shown the scripts he was supposed to have submitted.
57. With regard to count 6, there is no way he would have failed to submit if he had marked in terms of count 1. Mr. Mpilo is aware that he had submitted as per his instructions.
58. With regard to count 7, he submitted the required documents, Mr. Mpilo simply told him to put them on his side table. When he approached him later he instructed him to take them to the clerk. The clerk then verified with Mr. Mpilo who confirmed the arrangement. The same goes for count 8. He insisted that he submitted the documents, but what he does with the documents thereafter is Mpilo’s business.
59. On charge 1 count 11, he insisted that he drew the assessment program and submitted it to Mr. Mpilo, and that is why it appears on the school program.
60. Page 39 of bundle B contains a script of a learner Amukelani Khoza, Social Science Grade 8. The learner is allocated 9 marks, however it is not a full script and the marks for Geography are not shown, it is not clear if the marks are correct.
61. He denies accountability for charge 2 count 1 because it is not shown the marks he had allegedly allocated. He was not aware that Ms. Muthorwana marked Life Orientation scripts nor he was made aware of marking by Mr Seleka.
62. He is of the view that the finding of guilt and the sanction of dismissal was unfair. He prayed for reinstatement.
HE TESTIFIED UNDER CROSS-EXAMINATION AS FOLLOWS:
63. It is not correct that he had good relations with Mr. Mpilo. He had no problem with Mr. Mabasha, the principal, but due to one incident he might hate him. That is so because he raised the issue of him taking the principal’s post.
64. He was represented by Patricia Ramango, a SADTU official. He was advised of his rights at the hearing. He did not plead but his representative did so on his behalf. After they mitigated, he received a discharge letter, and Ms. Patricia appealed on his behalf.
65. He conceded that he did not mark Social Science Grade 8, he does not know who marked it. He conceded that it was in his appeal application that he pleaded guilty to receive a sanction short of dismissal, he conceded that it was the chairperson who came up with the sanction.
66. He conceded further that Mr. Bale’s signature appears on the scripts of Social Science Grade 8, thus he marked them in his absence. He did not mark them because the memo was wrong. He was not given opportunity to correct the mistakes. In so far as he is concerned, Mr. Mpilo wanted to trap him; he however, did not report this.
67. In so far as count 4 charge1 is concerned, any mark is not acceptable because 1 mark may fail a student. He testified that there is no evidence that he had irregularly marked the scripts.
68. With regard to count 5 charge 1, he testified that he submitted the scripts and the mark sheets to Mr. Leshabane for moderation. On charge 1 count 6, he said the test that was supposed to have been submitted was not completely marked, and had to use the earlier test. He denied that he failed to submit Grade 8 social Science for moderation. On count 7 he said he marked Social Science Grade 9, recorded the marks in the mark sheet and Mr. Raswiswi confirmed with Mr. Mpilo before accepting the marks. On count 8, he testified that it is true that it was not moderated (mark sheets for Grade 9). Mr. Mpilo said he was busy and that he should submit it to the clerk. Same goes for count 9, and count 10.
On count 11, he insisted that he drew the assessment program and that is why it was included in the school program. He denied that it was Mr. Mpilo who drafted it.
On count 1 of charge 2, he conceded that he did not mark task two. He admitted entering the marks on the mark sheet but said it was at the directive of the HOD, Mr. Mpilo. He conceded that the marks were entered even though the mark sheets were partially marked, it was for the entire class though.
On count 2 charge 2, he testified that he marked Life Orientation Grade 9. It was marked by him and someone else. He does not know who marked the scripts appearing at page 30-32. He however, submitted the mark sheet and scripts for moderation. When asked why he did not mark Life Orientation Grade 9 he said it may be a rewritten paper.
69. He conceded that he did not tell the chairperson of the hearing that he was being misrepresented when the person representing him pleaded guilty on his behalf. When asked why he said he was told not to say anything at the hearing.
ANALYSIS OF EVIDENCE AND ARGUMENTS
70. In this matter dismissal is common cause, hence the onus reverts to the employer to prove that the said dismissal was fair both substantively and procedurally as the case may be. See in this regard section 192 (2) of the Labour Relations Act 66 of 1995 as amended. The employer does on a balance of probabilities. This is achieved by weighing up the two versions against each other and the one that is more probable wins the day.
PROCEDURE
71. The employee complained that the matter took too long to be instituted, but did not indicate what policy was breached. The employer led evidence to show that the matter was complex and further that the fact that the employee was no longer reporting at the school, it took time to complete the investigation. The institution of the disciplinary procedure was also interrupted by covid-19 pandemic. I find no fault with the procedure followed by the employer in this regard.
72. The employee further raised the fact that he did not plead guilty at the hearing. The employer called two witnesses, the initiator and the chairperson of the disciplinary hearing who both confirmed that the employee pleaded guilty. He did so through his representative. He was present when this was done. Further that, in the appeal documents, he shows that he pleaded guilty with the hope of getting a lessor sanction than dismissal. When I asked him why he did not object if he felt he was being misrepresented he said he did not do so because he was told that he should not say anything. He however, did not put this to the witness of the employer. I reject his evidence as an afterthought and a dishonest way of disowning a plea of guilt with a view of finding a reasonable defense. I conclude that he pleaded guilty to the charges on which he was found guilty. I consequently find no fault with the procedure the employer followed in this regard.
SUBSTANTIVE FAIRNESS
CHARGE 1
73. Charge 1 consisted of 11 counts. Count 2 and 3 were withdrawn.
COUNT 1
You failed to mark Social Science (History) Grade 8
The employer led evidence of two witnesses Mr Mabasha and Mr Mpilo who testified that the employee failed to mark Grade 8 task. When they discovered this they asked Mr. Bale to mark it, Mr. Bale testified and confirmed this. The employee conceded that he did not mark the task, though he said he marked 20 scripts and realized that the memo was not correct. He testified that he informed Mr. Mabasha nd Mr. Mpilo, both of which denied it. The employee at the disciplinary hearing pleaded guilty on this count. The defenses he raises now are probably an afterthought and stand to be rejected. He was therefore correctly found guilty on this count.
COUNT 4
You irregularly or wrongfully marked History Grade 12
74. The employer led evidence to show that Mr. Mabasha, the principal received complaints from learners about their marks for History grade 12, he then asked an external marker to remark the scripts. The witness indicated that it was found that he irregularly marked the scripts and this would have had an impact on the learners in their final examination. The employer led further evidence that a difference of 5 marks is acceptable but that a difference of more than 5 marks is unacceptable. Evidence showed that the difference was more than 5 marks which points to irregular marking. The employee’s defense was that only a cover sheet of the script was shown and he could not see how the remarking happened. The employee pleaded guilty to the charge and it is highly probable that the current defenses are an afterthought and stand to be rejected. He was therefore correctly found guilty as charged.
COUNT 5
You failed to submit Life orientation Grade 9 for moderation
75. Mr. Mabasha testified that there were spaces on the schedule that was submitted to his office on 15th March 2019. He further said the employee told him the learners did not write, hence there were spaces on the schedule. Mr. Mabasha testified that Mr. Leshabane told him that the employee failed to submit learner’s scripts and mark sheets for moderation. Mr. Leshabane also came to testify and confirm same. The employee however insisted that he submitted. There is corroboration by the two witnesses that he did not submit for moderation. The employee further pleaded guilty at the disciplinary hearing which points to defenses herein an afterthought.
COUNT 7 TO COUNT 10
You failed to submit Social Sciences grade 9, 10, 11 and 12
76. Mr. Mabasha testified that Mr. Mpilo told him that the employee did not submit Social Science scripts and mark sheets as stated above for moderation. According to him, the purpose of moderation is to check if the scripts are marked and that the marks are entered correctly on the mark sheet before capturing them on SA-SAMS. He further said if the learners did not write a test, there must be a report on why that is the case. There was no such report. Mr. Mpilo also corroborated what Mr. Mabasha said above. The employee insisted that he did submit them to Mr. Mpilo. Ms. Raswiswi also confirmed that the employee brought them directly to her without moderation and told her that it was at the directive of Mr. Mpilo, who denied that. It is clear to me that the employee fabricated his story. That is so because at the disciplinary hearing he pleaded guilty and now wants out of that plea. His evidence is clearly a fabrication and is rejected. Consequently I find that he was correctly found guilty as charged on these counts.
COUNT 11
You failed to draw subject program assessment
77. Mr. Mabasha testified that it was Mr. Mpilo who drew the program and not the employee. Mr. Mpilo also confirmed that it was him who drew it as the employee failed to submit one. The employee on the other hand insisted that he drafted one and handed it to Mr. Mpilo. The employee pleaded guilty on this charge at the disciplinary hearing and as I said earlier I reject his changing of the plea as there are no compelling reasons for doing that. I find that he probably fabricated his story and is therefore correctly found guilty.
COUNT 6
You failed to submit Social Science Grade 8 for moderation.
78. The employee complained that the count is similar to count 1 of charge 1. I agree with him and find that he was unfairly found guilty on this count.
CHARGE 2
Count 1
You allocated or submitted marks for Social Science Grade 8 without marking the scripts.
79. Mr. Mpilo testified that documents appearing at page 17 – 21 of bundle B are learner’s scripts for Social Science – history Grade 8 which was taught by the employee. It was discovered they were not marked and he testified that he was directed by the employee where he put them. They were marked by Mr Bale. The employee denied the allegations against him. His defense is that it may be rewritten test. Mr. Bale testified and confirmed that the scripts were unmarked and that he was requested to mark them, which he did. The employee at the disciplinary hearing pleaded guilty to the count and the current defenses are probably a fabrication and stand to be rejected.
COUNT 2
You allocated or submitted marks for Grade 9 without having marked the scripts.
80. Mr. Leshabane testified that the scripts were not marked but learners were given marks by the employee. The scripts were later marked by Ms. Muthorwane after reopening the schools in the 2nd term of 2019. According to Mr Leshabane this caused the school not to issue reports during closing for the term and caused a disturbance in the school. The employee denied this and his defense was that it may have been a rewritten tests. The employee pleaded guilty to this count and he probably fabricated the current defense. I reject his evidence and find that he was correctly found guilty on this count.
81. Was the sanction of dismissal fair in the circumstances? I think so. The employee was found guilty of serious charges which include dishonesty. It is trite that dishonesty has the capacity irreparably destroy the trust element which is the foundation of the employer- employee relationship. Mr. Leshabane testified that the employee is un-cooperative and non-compliant and very difficult to work with. Both indicated that they would not want to work with such a person. It is therefore clear to me that the trust relationship is irreparably broken and dismissal was a fair sanction in the circumstances.
AWARD
82. I find the dismissal of the employee, Michack Matamela Sikweni to be both substantively and procedurally fair.
M.P.SHAI
THE PANELIST
Case No.: ELRC716-20/21 LP
Date of Award: 05 October 2021
In the ARBITRATION between:
MISHACK MATAMELA SIKWENI
(Union / Applicant)
DEPARTMENT OF EDUCATION LIMPOPO
(Respondent)
Union/Applicant’s representative: H. Tshikovhi
Tel: 015 8801153
Email: monyepaomtincattorneys.co.za
Respondent’s representative: Mr. M.Mattou
Tel: 0721482349
Email: MatlouMM@edu.limpopo.org.za
DETAILS OF HEARING AND REPRESENTATION
1. The matter was heard on the several days ending on the 9th September 2021 via online media.
2. Both parties were present. The employee, Michack Matamela Sikweni was initially represented by Mr. Kgatla and later by Mr. H. Tshikovhi of Tshikovhi Incorporated, whereas the employer, Department of Education: Limpopo was represented by Mr. Makgoba Matlou, its Employee Relations specialist.
3. The proceedings were digitally recorded.
4. At the end of the proceedings, both parties filed closing arguments and same were taken into account in arriving at conclusions herein.
ISSUE TO BE DECIDED
5. I am called upon to determine whether the dismissal of the employee is fair or not. If I find that the said dismissal was unfair, I will determine an appropriate remedy for him.
BACKGROUND TO THE ISSUE
6. The employee Mr. M.M.Sikweni was employed as an educator for 24 years and at the time of his dismissal, he was attached to Tshikola Secondary School. The employee was dismissed following a disciplinary hearing wherein he was charged of:
CHARGE 1
You contravened the provisions of Section 18(1) (1) of the Act in that between January 2019 and March 2019 or at any period incidental thereto, at or near Tshikota Secondary School, you poorly or inadequately for reasons other than incapacity in that:
COUNT 1
You failed to mark Social Sciences (History) Grade 8.
COUNT 2
You irregularly or wrongfully marked History Grade 10.
COUNT 3
You irregularly or wrongfully marked History Grade 11.
COUNT 4
You irregularly or wrongfully marked History Grade 12.
COUNT 5
You failed to submit Life Orientation Grade 9 for moderation.
COUNT 6
You failed to submit Social Sciences (History) Grade 8 for moderation.
COUNT 7
You failed to submit Social Sciences (History) Grade 9 for moderation.
COUNT 8
You failed to submit Social Sciences (History) Grade 10 for moderation.
COUNT 9
You failed to submit Social Sciences (History) Grade 11 for moderation.
COUNT 10
You failed to submit Social Sciences (History) Grade 12 for moderation.
COUNT 11
You failed to draw subject programme assessment.
CHARGE 2
You contravened the provisions of section 18(1) (ee) of the Act in that between January 2019 and March 2019 or at any period incidental thereto, at or near Tshikota Secondary School, you committed an act of dishonesty in that:
COUNT 1
You allocated or submitted marks for Social Sciences (History) Grade 8 without having marked the scripts.
COUNT 2
You allocated or submitted marks for Grade 9 Life Orientation without having marked the scripts.
CHARGE 3
You contravened the provisions of section 18(1) (1) of the Act in that between January 2019 and March 2019 or at any period incidental thereto, at or near Tshikota Secondary School, you refused or failed to submit your class register for administration as requested by the Management and therefore, you failed to carry out a lawful order or routine instruction without just reasonable cause.
7. He was found guilty of all charges and their counts save for count 2and 3 of charge one. Charge 3 was withdrawn.
8. It is this dismissal that is at issue herein.
9. During the opening statements, Mr Kgatla indicated that the employee contest both substantive and procedural fairness. With regard to procedure, the defect lies therein that the employer took too long to before instituting the disciplinary hearing. Secondly, the employee did not plead guilty to the charge.
SURVEY OF EVIDENCE FOR THE EMPLOYER
MR HLAKAYISELA SHIVAMBO TESTIFIED UNDER OATH AS FOLLOWS
10. He is the Assistant Director Labour Relations at the employer. Amongst his responsibilities is the conducting of disciplinary hearings. He was the chairperson of the employee’s disciplinary hearing. At the hearing, the charges were read to him and he pleaded guilty. He consequently found him guilty as charged.
11. He asked the parties for mitigating and aggravating factors. In the end, he recommended dismissal of the employee. The employee was represented by SADTU official. In the hearing he never spoke to this official separately.
MR NETSHIOMBANE PHITHANI PATRICK TESTIFIED UNDER OATH AS FOLLOWS
12. He is employed as a Labour Law Officer, and currently acting as assistant director in health and Wellness Section.
13. He investigated this matter and made a report. He can’t remember the date on which the matter was investigated but it was around 2019. He further drafted the charges and initiated at the employee’s disciplinary hearing. The matter took time to investigate as the relevant educator was no longer working at the relevant school.
14. The employee was represented by SADTU official at the disciplinary hearing and he pleaded guilty to the charges, thus 1 and 2, whereas charge 3rd was withdrawn. The charges were serious as they were Section 18 misconduct and involved dishonesty. His finding was that he did not mark some of the learning areas and not submitted certain learning areas for moderation.
15. Page 44 of bundle B contains the mitigation by the employee signed by one Ramango, a SADTU official and the employee’s representative. Paragraph 1 thereof shows that he pleaded guilty as aforesaid.
16. The employee was teaching social sciences grade 8 – 12. With regard to charge one, page 17 of the same bundle shows that it was Mr Bale who marked the scripts for grade 8 social science. That is so because it was not marked.
17. With regard to count 4, the employee irregularly and wrongfully marked grade 12 social science, history part. For example he gave the learner 32 of 100 but when the script was marked the learner receive 42 out of 100 marks.
18. On count 5, page 33 shows that a mark was given to a learner but the script not moderated. The employee is the one who was offering the learning area.
19. He can’t remember when he submitted the report about the matter. The period of investigation depends on the complexity of the misconduct and it may take long. Besides, there was a covid-19 pandemic.
20. The relationship between the employee and the employer has become intolerable. Four educators were charged, but the difference with the employee was that he was charged of a misconduct involving dishonesty.
21. The purpose of moderation is to check whether the paper is marked correctly. If moderation gives 5 marks more it is regarded as irregular. In so far as count 5 is concerned, the employee was asked to rectify but failed to do so. He however can’t recall if the employee wrote a letter to say that he was preparing a funeral.
MS TSHIFHIWA RICHARD MABASHA TESTIFIED UNDER OATH AS FOLLOWS
22. He is employed as a school Master by the employer at Tshikota Secondary School.
23. The employee reported to Mr Mpilo and Mr Leshabane as HOD’s. To Mr Leshabane, he was reporting in respect of Life Orientation as he was offering the learning area from grade 10 – 12. He was reporting to Mr Mpilo in respect of Social Science, history grade 8 – 12.
24. With regard to count 1, the employee failed to mark history grade 8. It was marked by Mr Bale and Mr Godfrey Masethle. They were requested to do so after discovering that the employee did not mark it. This was after the school failed to issue results and the parents were complaining. At page 17 bundle B is a social science script for grade 8 for term 1, it shows it was marked by Mr Bale. The same as at page 21. With regard to count 4 pages 23 and 28, its grade 12 scripts for social science/ history marked by the employee. At page 22 the employee gave the learner 22 out of 100 marks, but one Seleka remarked it and gave the learner 53 out of 100 marks. When he was asked to come to the school to rectify the defect, he said he won’t come as he had a funeral at home. He however, told them that he left the scripts in the cardboard and it was found that they were not marked.
25. With regard to count 4, the learners had come to him to complain that the marks given to them are not theirs because they wrote very well. Page 26 is a Grade 12 script. The employee gave the learner 48 out of 100, but the external marker gave the learner 58 out of 100 marks.
26. With regard to count 5, after checking the schedule, there were gaps, further that there were no documents to back up the marks. When he asked the employee, he said they did not write, but they were allocated marks. When he asked him to do damage control he did not come to school. The HOD also confirmed that he did not see the mark sheet and the scripts thereof.
27. Page 30-33 are Grade 9 Life Orientation scripts. The employee was responsible for the learning area. The scripts were marked by student teacher Muthorwana. It was marked after reopening of the school.
28. In respect of count 6, he testified that on investigation and when he asked the HOD to bring the mark sheet and scripts the response was that the employee did not submit them to him. With regard to count 7 he testified that he got the information from the HOD.
29. With regards to failure to submit scripts and mark sheets for moderation (count 8-10), the information he received from the HOD was that they were not submitted to him. This delayed the process of issue results and caused friction between the school and the parents.
30. The purpose of compiling subject assessment program is to keep parents and learners aware when the assessments will be written. The employee did not submit one (count 10). The HOD had to do one because of this failure.
MR FANUEL LESHABANE TESTIFIED UNDER OATH AS FOLLOWS
31. He is employed by the employer as an educator and holds the position of HOD at Elim Secondary School. In 2019 he was attached to Tshikota Secondary School where he held similar position. He was supervising commercial stream and three educators reported to him, it was Mr Sathekge, Mafela and Sikweni, the employee. The employee offered Life Orientation and same was in his stream.
32. He did not moderate his work during the 1st quarter of 2019 because he did not submit any. The employee was a difficult person to work with; he would just not comply with any directive. There was no bad blood between them.
33. With regard to count 5 of charge 1, he testified that the schedule was submitted to the principal on the closing day. Some learners had marks for Life Orientation, others not. He did not moderate it. He does not know who moderated it.
34. The scripts were found in the staff room but not marked. The employee was supposed to have marked them, and he did not give reasons why he did not mark them.
35. Page 31-33 of the bundle contains Life Orientation Grade 9 scripts. The employee should have marked them. He did not. They asked Ms Muthorwana to mark them and he moderated them.
36. With regard to charge 2 count 2, he testified that the principal discovered that they were not marked. On the schedule the other learners had marks whereas others did not have. He does not know where the marks came from. What he knows is that learners cannot be allocated marks if the scripts are not marked.
37. This type of behavior is unacceptable and he would not like to work with such a person. He is non-compliant and uncooperative.
38. On charge 2 count 1, he testified that the employee had failed to draw an assessment program. If he drew one he will have seen it. It could not have been submitted to Mr. Mpilo but to him, as he was the one who supervised Life Orientation.
39. He had earlier reported to the principal that Life Orientation did not come for moderation. When he asked him about it he said he was busy with other tasks.
40. Under re-examination, he confirmed that only scripts and mark sheets are submitted for moderation (charge 2 count) that Life Orientation Grade 9 was not marked and it was the employee who should have marked it.
MR MUVHANGO MARCUS MPILO TESTIFIED UNDER OATH AS FOLLOWS
41. He is employed as an HOD by the employer and stationed at Tshikota Secondary School. During 2019 he was supervising Social Science and had 6 teachers under him. The employee was one of them. The employee offered Social Science – History Grade 10-12. He was an uncooperative educator. He did not enjoy working with him as he did not want to take orders relating to work. Before he submits he would have requested several times, and would submit late his work most of the time.
42. With regard to charge 1 count 1 he testified that the scripts were marked by Mr Bale. They are to be found at page 17-20 of bundle A. They are scripts for History Grade 8. He gave the employee the memo for marking purpose. He never said the memo had flaws. His actions resulted in disturbances at the school.
43. Page 11 of bundle A contains scripts for History Grade 12. The employee marked them irregularly. If students are not given the correct marks they may fail the subject. For example at page 22 the employee gave the learner 12 out of 100 marks, whereas Seleka gave the learner 53 out of 100 marks. At page 23 the employee gave the learner 32 out of 100 marks, whereas Seleka marked and gave the learner 42 out of 100 marks and the curriculum advisor gave the learner 38 out of 100 marks. Difference between Seleka and the employee is 10. This is a serious problem. The difference between Seleka and the advisor is acceptable. At page 24 the employee gave the learner 20 out of 100 marks, which is a difference of 7 out of the 100, which is a difference of 7.
MS OLIVIA RASWISWI TESTIFIED UNDER OATH AS FOLLOWS
44. She is employed as an administration clerk at Tshikota Secondary school. One of her duties is to prepare schedules. The procedure is that she would receive the mark sheets from the HOD. The HOD would have received the scripts and the mark sheets from the teachers. During the 1st quarter of 2019, she received the mark sheets as per page 52 from the employee. The employee told her that Mr Mpilo asked him to submit directly to her and she then entered the marks. The same happened with regard to page 54. All the mark sheets submitted by the employee were not moderated.
45. Under cross-examination she confirmed largely the above evidence. She however did not confirm with Mr Mpilo if what the employee said was true or not.
MR GODFREY BALE TESTIFIED UNDER OATH AS FOLLOWS
46. He worked at Tshikota Secondary School and he is a teacher. He marked the scripts at pages 18, 19, 20 and 21. The employee was supposed to have marked them as he was offering the subject. He was asked by Mr Mpilo to mark them. He was given the scripts and the memorandum. He did not notice anything wrong with the memo. After marking he returned the memo and the scripts to Mr Mpilo. Under cross examination he explained that the scripts above were not complete, they are only the face of the scripts.
SURVEY OF EVIDENCE FOR THE EMPLOYEE
MR MISHACK MATAMELA SIKWENI TESTIFIED UNDER OATH AS FOLLOWS
47. He was employed by the employer for twenty four (24) years as an educator. He majored in History and Geography, and has taught History ever since.
48. Mr. Mpilo joined them while they were still at Masedi Combined School. Initially he was humble but three months on and after one meeting, Mpilo referred them as spoilt brats and said the school needs to be overhauled and that they shall report to the circuit office and shall forfeit salaries and pension. He approached him to withdraw his words.
49. His problem started with his failure to attend the meeting of 21- 25 March 2019. He could not attend the meeting as he was preparing the funeral and accordingly informed the principal. Later they were asked to report at the circuit office, where their conditions were not good.
50. At the disciplinary hearing he did not plead. He had brought his legal representative Mr. Makhado. After he was not allowed he became an observer and was represented by one Patricia Ramango, a SADTU official. The latter pleaded guilty on his behalf.
51. He was not aware of the remarking of his subject. No one informed him.
52. Page 15 and 16 are charges that he received while at the circuit office.
53. With regard to charge 1, count 1, he denies the charge. While he admits that he did not mark the scripts, the memo given to him was wrong. He told Mr. Mpilo and the principal. They both agreed with him. He told Mr. Mpilo that he had already marked 20 scripts. Mr. Mpilo said he must put them aside and that the correct memo shall be made available on reopening. It is not true that the two are not aware of this. Page 18 bundle B is a script for Grade 8, he agrees that Mr Bale marked it. Page 20 does not contain a full script. He had requested a full script but did not get same. It is the same with page 21. Page 22 also is a cover page, there is no justification for marks given and could be the result of a rewriting. Mr. Bale’s marking may not be good since he does not offer the subject.
54. With regard to count 4, the marks are allocated without showing how they were accumulated. At the hearing, he was shown no irregularity. The same applies to page 23 and 24.
55. With regard to count 5, he submitted the required documents to Mr. Leshabane for moderation. The destroyed schedule would have the required marks. Further that, he was not shown the 2nd schedule.
56. He does not know who allocated the marks at page 30-33 of bundle B. this is Grade 9 Life Orientation. It could be a rewritten paper. He was not shown the scripts he was supposed to have submitted.
57. With regard to count 6, there is no way he would have failed to submit if he had marked in terms of count 1. Mr. Mpilo is aware that he had submitted as per his instructions.
58. With regard to count 7, he submitted the required documents, Mr. Mpilo simply told him to put them on his side table. When he approached him later he instructed him to take them to the clerk. The clerk then verified with Mr. Mpilo who confirmed the arrangement. The same goes for count 8. He insisted that he submitted the documents, but what he does with the documents thereafter is Mpilo’s business.
59. On charge 1 count 11, he insisted that he drew the assessment program and submitted it to Mr. Mpilo, and that is why it appears on the school program.
60. Page 39 of bundle B contains a script of a learner Amukelani Khoza, Social Science Grade 8. The learner is allocated 9 marks, however it is not a full script and the marks for Geography are not shown, it is not clear if the marks are correct.
61. He denies accountability for charge 2 count 1 because it is not shown the marks he had allegedly allocated. He was not aware that Ms. Muthorwana marked Life Orientation scripts nor he was made aware of marking by Mr Seleka.
62. He is of the view that the finding of guilt and the sanction of dismissal was unfair. He prayed for reinstatement.
HE TESTIFIED UNDER CROSS-EXAMINATION AS FOLLOWS:
63. It is not correct that he had good relations with Mr. Mpilo. He had no problem with Mr. Mabasha, the principal, but due to one incident he might hate him. That is so because he raised the issue of him taking the principal’s post.
64. He was represented by Patricia Ramango, a SADTU official. He was advised of his rights at the hearing. He did not plead but his representative did so on his behalf. After they mitigated, he received a discharge letter, and Ms. Patricia appealed on his behalf.
65. He conceded that he did not mark Social Science Grade 8, he does not know who marked it. He conceded that it was in his appeal application that he pleaded guilty to receive a sanction short of dismissal, he conceded that it was the chairperson who came up with the sanction.
66. He conceded further that Mr. Bale’s signature appears on the scripts of Social Science Grade 8, thus he marked them in his absence. He did not mark them because the memo was wrong. He was not given opportunity to correct the mistakes. In so far as he is concerned, Mr. Mpilo wanted to trap him; he however, did not report this.
67. In so far as count 4 charge1 is concerned, any mark is not acceptable because 1 mark may fail a student. He testified that there is no evidence that he had irregularly marked the scripts.
68. With regard to count 5 charge 1, he testified that he submitted the scripts and the mark sheets to Mr. Leshabane for moderation. On charge 1 count 6, he said the test that was supposed to have been submitted was not completely marked, and had to use the earlier test. He denied that he failed to submit Grade 8 social Science for moderation. On count 7 he said he marked Social Science Grade 9, recorded the marks in the mark sheet and Mr. Raswiswi confirmed with Mr. Mpilo before accepting the marks. On count 8, he testified that it is true that it was not moderated (mark sheets for Grade 9). Mr. Mpilo said he was busy and that he should submit it to the clerk. Same goes for count 9, and count 10.
On count 11, he insisted that he drew the assessment program and that is why it was included in the school program. He denied that it was Mr. Mpilo who drafted it.
On count 1 of charge 2, he conceded that he did not mark task two. He admitted entering the marks on the mark sheet but said it was at the directive of the HOD, Mr. Mpilo. He conceded that the marks were entered even though the mark sheets were partially marked, it was for the entire class though.
On count 2 charge 2, he testified that he marked Life Orientation Grade 9. It was marked by him and someone else. He does not know who marked the scripts appearing at page 30-32. He however, submitted the mark sheet and scripts for moderation. When asked why he did not mark Life Orientation Grade 9 he said it may be a rewritten paper.
69. He conceded that he did not tell the chairperson of the hearing that he was being misrepresented when the person representing him pleaded guilty on his behalf. When asked why he said he was told not to say anything at the hearing.
ANALYSIS OF EVIDENCE AND ARGUMENTS
70. In this matter dismissal is common cause, hence the onus reverts to the employer to prove that the said dismissal was fair both substantively and procedurally as the case may be. See in this regard section 192 (2) of the Labour Relations Act 66 of 1995 as amended. The employer does on a balance of probabilities. This is achieved by weighing up the two versions against each other and the one that is more probable wins the day.
PROCEDURE
71. The employee complained that the matter took too long to be instituted, but did not indicate what policy was breached. The employer led evidence to show that the matter was complex and further that the fact that the employee was no longer reporting at the school, it took time to complete the investigation. The institution of the disciplinary procedure was also interrupted by covid-19 pandemic. I find no fault with the procedure followed by the employer in this regard.
72. The employee further raised the fact that he did not plead guilty at the hearing. The employer called two witnesses, the initiator and the chairperson of the disciplinary hearing who both confirmed that the employee pleaded guilty. He did so through his representative. He was present when this was done. Further that, in the appeal documents, he shows that he pleaded guilty with the hope of getting a lessor sanction than dismissal. When I asked him why he did not object if he felt he was being misrepresented he said he did not do so because he was told that he should not say anything. He however, did not put this to the witness of the employer. I reject his evidence as an afterthought and a dishonest way of disowning a plea of guilt with a view of finding a reasonable defense. I conclude that he pleaded guilty to the charges on which he was found guilty. I consequently find no fault with the procedure the employer followed in this regard.
SUBSTANTIVE FAIRNESS
CHARGE 1
73. Charge 1 consisted of 11 counts. Count 2 and 3 were withdrawn.
COUNT 1
You failed to mark Social Science (History) Grade 8
The employer led evidence of two witnesses Mr Mabasha and Mr Mpilo who testified that the employee failed to mark Grade 8 task. When they discovered this they asked Mr. Bale to mark it, Mr. Bale testified and confirmed this. The employee conceded that he did not mark the task, though he said he marked 20 scripts and realized that the memo was not correct. He testified that he informed Mr. Mabasha nd Mr. Mpilo, both of which denied it. The employee at the disciplinary hearing pleaded guilty on this count. The defenses he raises now are probably an afterthought and stand to be rejected. He was therefore correctly found guilty on this count.
COUNT 4
You irregularly or wrongfully marked History Grade 12
74. The employer led evidence to show that Mr. Mabasha, the principal received complaints from learners about their marks for History grade 12, he then asked an external marker to remark the scripts. The witness indicated that it was found that he irregularly marked the scripts and this would have had an impact on the learners in their final examination. The employer led further evidence that a difference of 5 marks is acceptable but that a difference of more than 5 marks is unacceptable. Evidence showed that the difference was more than 5 marks which points to irregular marking. The employee’s defense was that only a cover sheet of the script was shown and he could not see how the remarking happened. The employee pleaded guilty to the charge and it is highly probable that the current defenses are an afterthought and stand to be rejected. He was therefore correctly found guilty as charged.
COUNT 5
You failed to submit Life orientation Grade 9 for moderation
75. Mr. Mabasha testified that there were spaces on the schedule that was submitted to his office on 15th March 2019. He further said the employee told him the learners did not write, hence there were spaces on the schedule. Mr. Mabasha testified that Mr. Leshabane told him that the employee failed to submit learner’s scripts and mark sheets for moderation. Mr. Leshabane also came to testify and confirm same. The employee however insisted that he submitted. There is corroboration by the two witnesses that he did not submit for moderation. The employee further pleaded guilty at the disciplinary hearing which points to defenses herein an afterthought.
COUNT 7 TO COUNT 10
You failed to submit Social Sciences grade 9, 10, 11 and 12
76. Mr. Mabasha testified that Mr. Mpilo told him that the employee did not submit Social Science scripts and mark sheets as stated above for moderation. According to him, the purpose of moderation is to check if the scripts are marked and that the marks are entered correctly on the mark sheet before capturing them on SA-SAMS. He further said if the learners did not write a test, there must be a report on why that is the case. There was no such report. Mr. Mpilo also corroborated what Mr. Mabasha said above. The employee insisted that he did submit them to Mr. Mpilo. Ms. Raswiswi also confirmed that the employee brought them directly to her without moderation and told her that it was at the directive of Mr. Mpilo, who denied that. It is clear to me that the employee fabricated his story. That is so because at the disciplinary hearing he pleaded guilty and now wants out of that plea. His evidence is clearly a fabrication and is rejected. Consequently I find that he was correctly found guilty as charged on these counts.
COUNT 11
You failed to draw subject program assessment
77. Mr. Mabasha testified that it was Mr. Mpilo who drew the program and not the employee. Mr. Mpilo also confirmed that it was him who drew it as the employee failed to submit one. The employee on the other hand insisted that he drafted one and handed it to Mr. Mpilo. The employee pleaded guilty on this charge at the disciplinary hearing and as I said earlier I reject his changing of the plea as there are no compelling reasons for doing that. I find that he probably fabricated his story and is therefore correctly found guilty.
COUNT 6
You failed to submit Social Science Grade 8 for moderation.
78. The employee complained that the count is similar to count 1 of charge 1. I agree with him and find that he was unfairly found guilty on this count.
CHARGE 2
Count 1
You allocated or submitted marks for Social Science Grade 8 without marking the scripts.
79. Mr. Mpilo testified that documents appearing at page 17 – 21 of bundle B are learner’s scripts for Social Science – history Grade 8 which was taught by the employee. It was discovered they were not marked and he testified that he was directed by the employee where he put them. They were marked by Mr Bale. The employee denied the allegations against him. His defense is that it may be rewritten test. Mr. Bale testified and confirmed that the scripts were unmarked and that he was requested to mark them, which he did. The employee at the disciplinary hearing pleaded guilty to the count and the current defenses are probably a fabrication and stand to be rejected.
COUNT 2
You allocated or submitted marks for Grade 9 without having marked the scripts.
80. Mr. Leshabane testified that the scripts were not marked but learners were given marks by the employee. The scripts were later marked by Ms. Muthorwane after reopening the schools in the 2nd term of 2019. According to Mr Leshabane this caused the school not to issue reports during closing for the term and caused a disturbance in the school. The employee denied this and his defense was that it may have been a rewritten tests. The employee pleaded guilty to this count and he probably fabricated the current defense. I reject his evidence and find that he was correctly found guilty on this count.
81. Was the sanction of dismissal fair in the circumstances? I think so. The employee was found guilty of serious charges which include dishonesty. It is trite that dishonesty has the capacity irreparably destroy the trust element which is the foundation of the employer- employee relationship. Mr. Leshabane testified that the employee is un-cooperative and non-compliant and very difficult to work with. Both indicated that they would not want to work with such a person. It is therefore clear to me that the trust relationship is irreparably broken and dismissal was a fair sanction in the circumstances.
AWARD
82. I find the dismissal of the employee, Michack Matamela Sikweni to be both substantively and procedurally fair.
M.P.SHAI
THE PANELIST