ELRC327-20/21LP

Commissioner: Grace Mafa-Chali
Case No.: ELRC327-20/21LP
Date of Award: 08 November 2021


In the ARBITRATION between:


RAPHUTI DAVID SELAMOLELA


(Employee / Applicant)



AND


DEPARTMENT OF EDUCATION-LIMPOPO PROVINCE


(Employer/Respondent)



THE DETAILS OF THE HEARING AND REPRESENTATION
1. The arbitration hearings for this matter were held on 07 April 2021 virtually via Zoom, 26, 27 and 28 May 2021, at the Department of Education, Modimolle in Limpopo Province, on 22 and 23 July 2021 virtually via Zoom, and on 11 and 12 October 2021 virtually via Zoom.
2. The Applicant was represented by Mr N C Malumbete, an attorney and the Respondent was represented by Mr N E Nyathela, the Labour Relations Officer.
3. On 12 October 2021, when the matter was concluded, both parties requested to submit written closing arguments and were directed to do so by 19 October 2021. The Respondent requested for an extension until 22 October 2021 and the extension was so granted. The Applicant submitted his closing arguments on 25 October 2021. I have considered the parties ‘arguments in my analysis hereunder.
ISSUES TO BE DECIDED
4. I must decide whether or not the Applicant’s dismissal was substantively fair.
5. If so, to decide the appropriate relief.
BACKGROUND TO THE DISPUTE
6. The Applicant was employed by the Respondent as an Educator on 01 January 1992 at Susan Strydom Special School. He was later promoted to the position of Principal on 01 June 2011, and earned a salary of R49 804.00 per month.
7. The Applicant was charged with 3 charges of misconduct, 2 counts on charge 1 and eight counts on charge 2. The misconduct is in terms of Sections 18(1) of the Employment of Educators Act, 76 of 1998 (as amended) herein referred to as the EEA.
8. The Applicant was subsequently dismissed on 11 November 2019 following a disciplinary hearing. He then lodged an appeal which confirmed his dismissal on 03 September 2020.
9. It is common cause that the Applicant was dismissed and the Applicant challenges only the substantive fairness of his dismissal in that he denied the existence of the rule, awareness of the rule and its reasonableness as well as the appropriateness of the sanction. Procedural fairness is not in dispute.
10. The Applicant prayed for retrospective reinstatement.
11. Parties submitted a bundle of documents marked “A” for the Respondent and “B” for the Applicant.
SURVEY OF PARTIES’ EVIDENCE

Respondent’s Evidence
David Motopi Seleka testified under oath as follows:

12. He is a Practitioner, Labour Relations in the Waterberg District and his job description entails investigating misconduct allegations, preparations of disciplinary hearings, appearance and also being a presiding officer. He furthermore co-ordinates grievances and disputes.
13. He was tasked to do investigation of the allegations of non-compliance with management of school funds at Susan Strydom School. He also investigated failure to pay municipal services. He visited the school in May 2017 to conduct his investigations.
14. With Reference to Page 1 of Bundle A, Charge 1, Counts 1 and 2, which were read into record, when he investigated, he did not find the approval of the Circuit Manager on the two transactions.
15. Items 8.6.1 to 8.6.6 on Page 54 of Bundle B was read into record. They did not find any quotations in relation those transactions and no evidence of delivery of the items bought.
16. On Count 2, there was a transaction that was paid for which was a workshop to make policies, but policies were not delivered to the school. Pages 23 -25 of Bundle A are proof of payments for the workshop. However, he could not find policies for the purpose of that payment. Similarly, to Count 1, he found proof of payment but could not find delivery of items for an amount of R23 04.80.
17. On Count 3, the findings were that Sethosa MH was appointed as a service provider at the workshop and it was established that there were no quotations for the service. There was a relationship between the Applicant and Sethosa M.H who was the Applicant’s representative when the Applicant lodged a dispute for nullification of his appointment as the Principal.
18. Count 4 related to the municipality bill for which the school was in arrears. It was an amount of R766 900.88 for the period 2012 to 2016. The explanation for the arrears was given by the school Principal, Ms Boshoff at the time of the investigation.
19. Count 5 it related to payment of new tyres for the vehicle that belongs to the Applicant with registration number CNB 088 L, as it appears on the documents on Pages 30-33 of Bundle A. The bank statement on Page 36 of Bundle A from ABSA bank also shows that on 11 June 2015, payment was made to Karee Bande for an amount of R5 200.00 for tyres.
20. It was not allowed to use school funds to pay repairs or maintenance of a private vehicle of an educator or Principal, as confirmed by the district finance official Mr Mabunda.
21. Pages 37 – 40 of Bundle A are related to Count 6, which are documents for vehicle maintenance for the Applicant’s vehicle.
22. For Count 7, Pages 41 to 44 of Bundle A are records of rental car hire. It was found that the school fund was used to pay rental for the car hire by the Applicant.
23. On Count 8, investigations revealed that the Applicant did not have a credit card to do the car rental and he approached Mr Rudolf Hatting to use his credit card (deceased employee of Suzan Strydom). Ms Melisa Crause told him that an arrangement was to made that the Applicant would pay when money is available. It was an amount of R8 234.84 (Page 52 of Bundle A) and the period of the rental was 18 days from 05 February 2016 to 23 February 2016.
24. In relation to Charge 3, the findings were that the Applicant was not paying rent into the school account as it was expected of him to pay for his accommodation like any other person who was occupying or staying at the school. The school had a policy previously that provides that whoever occupies the house at the school, they were expected to pay the rentals and other services.
25. At the time when he did investigations, they found that some tenants were paying rent while others were not paying rent. Reasons given were that the Principal, the Applicant, was not paying rent. One Mr Maluleka, an educator, told them so. There were no minutes of the SGB to confirm that the new policy exonerated one person not to pay rent. The tenant policy that was in possession of one person, the Applicant and was presented at the disciplinary hearing for the first time.
26. The Acting Principal was paying rent and is till staying on school premises. However, she is not able to stay in the Principal’s house because the Applicant has not handed in the house keys.
Isabella Johanna Boshoff testified under oath as follows:
27. She was appointed as the Principal of Susan Strydom since October 2016 after he opened a labour case to challenge the appointment of the Applicant as the Principal. He won the dispute and then succeeded the Applicant as the Principal.
28. During some December school holidays, a phone rang in her premises where she stays at the school. It was FNB Lephalale who wanted to know about the transaction for protective clothing for general workers. She told them that she did not know anything about it. She told them she would ask the person responsible.
29. When the school re-opened, she went to the Applicant and asked him about the transaction. He told her not to worry about it as she was not in the Finance Committee. General workers came to her asking about their protective clothing and she sent them to the Applicant to enquire. The amount for the protective clothing was R40 250.07. Afterwards the workers returned to her and told her that they have received some of the clothing but not all of them.
30. With reference to Page 19, 20, 21 and 22 of Bundle A, Dean’s phoned and asked her why they did not get paid as they delivered the stationery on 14 January 2016. She told them that she was not the Principal in January 2016 and at that time it was November 2016. She told them that since she was not the Principal when they delivered the stationery in January 2016, she could not pay R47 000.00 as school was getting subsidy only twice a year, in May and November.
31. In November 2016 when the school received another subsidy from the department, she made arrangements to pay first R24 000.00 as she could not pay the whole amount due to a lot of expenditures for the school. She divided the amount into two (2) transactions. The second amount was paid on 08 December 2016.
32. Regarding the SGB workshop, she was never asked to join the workshop. She was the Deputy Principal and there were policies at the school. There was no formal hand over when she took over as the Principal. The lodge called her in October/ November 2016 and asked for the money owed to them by the school. She went to the accountant and saw that the place was rented out for staff, using money meant for the learners.
33. According to her, the school facilities could have been used as there was a lapa, hotels and boarding rooms which could have been used without any costs. It was a waste of money go to the lodge to draft policies when there are school facilities. There are no new policies discussed at the SMT, and as head of the school, she could have been invited to give an input on the Rental Policy.
34. According to the file records, nothing was presented to the teachers from MH Sethosa. The Respondent has a legal department that draws up legal documents.
35. In regard to monies owed to the municipality, it is the Principal’s responsibility to run the school smoothly. When accounts are received, they go to the SGB and Finance Committee who must ensure that accounts are paid once approved. The Principal is the overseer of everything at the school and cannot detach himself/herself. There must be meetings which must be recorded and the Principal must give guidance to the SGB and tell them to pay the accounts.
36. When she saw the issue of payment made to Karee Bande for maintenance of the Applicant’s vehicle, she went to check in the records for the reasons but there was nothing. There was no meeting that took place to take that decision. It was against the law as the Principal was claiming travelling of R4 .50 per kilometer for attending school meetings. The school did not have its own car,
37. The same as above car applied to Count 6 for servicing of the Applicant’s vehicle. There was no record of the decision by the SGB.
38. On the car rental issue, she asked the Finance Officer who explained that the car rental was for the Applicant, but when they looked for the minutes of the meeting, there was nothing and no one approved it. The Budget car hire by Mr Hatting (the deceased) was for the Applicant to use but the Applicant stayed on school premises and there was no need for him to have the car to go to work. When he went for the meetings, the Applicant could use other cars of the colleagues from other schools and not use learners’ school money for car rentals.
39. When she saw the Applicant driving a rented car, she asked Ms Crause what was going on, and she told her that it was a rented car for the Applicant. There was no policy provision for rented car for school principal. There were no SGB minutes with reasons for the need to rent a car for the Principal.
40. On Charge 3, no one is exempted to pay rent for the staying at the hostel. Teachers, deputy principals and principals receive rental allowance from the department. She and the Applicant received hostel allowance and therefore they are not exempted from paying school rent.
41. After her appointment in October 2016 as the Principal, she went through the records and observed that Applicant was not paying rent. She called the SGB and asked why other teachers were paying rent and the Applicant did not. The SGB told her that they did not know anything. They called the teachers one by one and they indicated that the Applicant was not paying rent. The Finance Committee also confirmed that; hence they were also not paying rent. The Applicant and those teachers were given letters of demand but there was no response from the Applicant.
42. In terms of policies, the principal is not allowed to approve school funds for any purpose but can approve and Finance Committee must authorise the payment. The Finance Officer told her that she loaded payment on the bank, the SGB or Finance Committee should authorise but the Applicant himself authorised payment after the Finance Officer loaded them.
43. The Applicant as the principal did not play his role in terms of the provisions of documentation on page 65 of Bundle A, Paragraph 9 Section 16A from h to k.
Promise Molokomme testified under oath as follows:
44. He was working at Susan Strydom as an educator and started on 11 March 2013.
45. He started staying at the school in 2013 around April/ May and there was rent to be paid. He was also paying rent but when time went on, he discontinued to pay rent around 2014. He was complaining as the house he was staying in was not fixed. Some people claimed that they were not paying because they were exempted by the SGB not to pay rent hence he discontinued to pay rent.
46. The Applicant and Mr Baloyi were alleged to have been exempted by SGB to not pay rent. Mr Baloyi was rendering services to small cafeteria at the school and it was alleged he was not supposed to pay rent.
47. No policy was drafted by the Respondent that exempted anyone to stay for free at the residence of the school. He made arrangements with the SGB to pay his arrears even if he was no longer staying at the school premises anymore.
Melissa Crause testified under oath as follows:
48. She started at Susan Strydom as the Finance Officer in 2010. Her main duties are assisting the Principal and SGB with school finances, reconciliations, order food for hostels and issuing out statements for students and residents. She works for the SGB and was appointed as Accounting Clerk of the school by the Department.
49. When she arrived at the school in 2010, Mr Koetzee was the Principal and the Applicant was an educator at CS1 level. When Mr Koetzee retired, Mrs Boshoff became the Acting Principal and in 2011, the Applicant was appointed as Principal when the position was advertised.
50. The Applicant stayed at his own house and she learnt that before 2010, the Applicant was evicted from the school house as she was told by Ms Boshoff and she had documents of eviction and debt collection. When the Applicant became the Principal, he moved back to the Principal’s house at the school.
51. Mr Koetzee paid rent when he stayed at the school house and Ms Boshoff was the hostel supervisor, she stayed at the school and also paid rent and when she became the Acting Principal she continued to pay the rent. When the Applicant moved back into the school house, he did pay rent and at some time he stopped paying and said that the SGB has exempted him to pay around 2015. He instructed her not to bill him for rent anymore. She did not attend any meeting that took such decision to exempt him to pay rent. She also did not see any agreement the Applicant had with the SGB to that effect.
52. She was referred to Page 92 of Bundle B, which is the Rental Policy. She was never exposed to the said policy, nor did the SGB tell her about that policy.
53. When she left in November 2020, the Applicant was still occupying the house and Ms Monyebodi was the Acting Principal since Ms Boshoff retired in 2019. The Applicant was not paying rent even during the time Mrs Boshoff was the Principal. The Applicant told him that he and Mr Baloyi were exempted to pay rent as Mr Baloyi was in charge of the tuck shop at the school.
54. In relations to Charge 1, Count 1, she was aware that the SGB wanted to order safety wear for general workers and it was her responsibility to get quotations but the SGB said that they would look for quotations. In December 2016, some of the items were delivered but not all was received. The Applicant told her to upload the payment for the service provider. It was an EFT payment. She was the one uploading the payment and the Treasurer approved the transaction. She did not see the payment approval by the Circuit Manager.
55. For Count 2, stationery from Dean’s was ordered and delivered on 14 January 2016 and the account was not paid until December 2016. The Principal did not make sure that payment was made despite the stationery being delivered.
56. On Count 3, the principal asked her to get a quotation for the SGB to do policies. she made the arrangements with Ezingweni Safari Lodge and Spa. It was not allowed to spend school fund by the SGB as it was for educational purposes. She noted it from the documents that M.H Sethosa was paid with 2 instalments. She however. never saw any documents that were drafted after the workshop. It was not necessary to book a venue for a workshop. The school has a legal department to draft policies.
57. The Applicant told her to load the EFT payment on internet and the Applicant made payment on EFT. It is the duty of the Treasurer to authorise payments. The Principal was not authorised to make payments but he performed duties of the Treasurer. Prescripts do not allow the Principal to be the signatory of the cheque or EFT.
58. Regarding the municipality payment of services, it was the responsibility of the Principal as part of the SGB to assist the SGB in ensuring the running of the school and payments for municipal services. The Applicant asked her to go and make arrangement with the municipality to pay when the municipality switched off electricity but they did not stick to the payment arrangement made. Interest accumulated on the account as a result of the non-payment. The Applicant is the one approving the payments for the services. When statements are received through emails, they would tell the Applicant who will make payment. The SGB never engaged her on municipal accounts. She was engaged by the Applicant.
59. She was aware of payments made to Karee Bande of R5 200,00 for the maintenance of the Applicant’s vehicle. The Applicant told her to look for prices of tyres for his vehicle and the transaction was uploaded by her on the bank internet and the Applicant authorised it. She knew that when one travelled for school purposes, they would claim R4.50 per km for attending school events which cover fuel expenditures, toll gates etc. According to the prescripts the Applicant was not allowed to use school funds for vehicle maintenance. She was not aware of the SGB’s decision in any meetings that she attended to pay for the transaction.
60. Authorizing as an EFT user on the bank is the same as being a bank signatory on the cheque. The Treasurer, Vice Chairperson and third member of the SGB are signatories in terms of EFT prescripts.
61. The same reasoning is applicable for servicing the Applicant’s vehicle using school funds, as it was not allowed. It was the Applicant who asked her to arrange for this service. She was not aware of the SGB’s decision to authorise such a transaction.
62. In February 2016, a vehicle was hired for the amount of R19 856.92. It was done by the Applicant. He asked to use the house credit card of Mr Hatting and he told Mr Hatting that he will pay it personally, as Mr Hatting was on the SGB, he would realise that it was not approved by the SGB. Money from school funds was deposited into his account and she withdrew it and gave it to Mr Hatting. Money was uploaded on EFT bank and the Applicant approved the payment. The Budget car hire was from 05 February 2016 to 23 February 2016.
63. The second car hire for Avis was from 01 March to 10 April 2016. The Applicant asked to use her own credit card for this transaction. She spoke to her husband and they agreed as they trusted the Applicant. As she did not have sufficient funds on her account, she deposited money from the school account as instructed by the Applicant into her credit card and she went with the Applicant to Pretoria to collect the hired vehicle. The Applicant authorised the transaction after she uploaded it on EFT.
64. She was not aware of the SGB decision that they agreed to arrange car hire for the Applicant. The Applicant used the hired car daily and also for his personal use as well as attending to school meetings but was not claiming R4.50 per km for such official travelling. This car hire for the Applicant should not be allowed. The Applicant in terms of Amended Section 16A of EEA was supposed to advice the SGB how finances must be administered but he did not succeed in that role.
Lekola Phaswane Ewert testified under oath as follows:
65. He was appointed in 2008 as Assistant Director, Institutional Governance. His scope of work is financial management, learner affairs, safety and security as well as infrastructure.
66. The financial management is also responsible to workshop the SGB including the Principal, educators to support learners and parents. On learner affairs, he is the one who ensures that learners are educated as expected by government. On safety and security, he ensures that where learners receive education, the environment is conducive for teaching and learning.
67. He was responsible to train the SGB on financial management and procedure followed in income and expenditure and that SGB must meet and agree on the amount to be spent and minutes and roll-calls must be recorded. Any expenditure over R30 000.00 must be done only with the approval of the Circuit Manager.
68. It is expected that the Principal as a representative of the HOD, and an ex-officio member of the SGB, in the position of trust must make sure that all procedures related to prescripts must be followed. If there is any SGB violation, the Principal must show the SGB to understand the procedure on all expenditures. The Principal must also notify the circuit on SGB contravention of procedures. Reference was made to Government Gazette “A” Paragraph 9 on Page 66 of Bundle A.
69. The Government Gazette assists the SGB with management of school funds in line with directives issued by those stated in Chapter 4. The Principal is expected to keep detailed information on usage and management of the SGB and advise them in line with the prescripts.
70. One of the responsibilities of SGB in terms of Section 20 of South African Schools Act, herein referred to as SASA, is formulation of policies and mission statements. The SGB may appoint a subcommittee or committee to draft policy, sent to it stakeholders before ratification, then it goes to Annual General Meeting (AGM) to read it to parents before it gets signed to be the policy. The Principal was supposed to advise the SGB that policy formulation is done in that manner.
71. SGB has no powers to hire a service provider as an outsider to draft policies. It is the function of the SGB, in consultation with the Circuit Manager.
72. In relation to Count 4 & 5, the Principal, has to account why things happened in that way and if the SGB failed, he was supposed to consult the Circuit and District Office.
73. Money from the school funds cannot be used for the Applicant’s vehicle maintenance or to buy tyres or for car rentals. If it was the SGB’s decision, the Applicant was supposed to have declined it and advised the SGB that his car doesn’t belong to the school as he claims for subsistence and travel (S & T) when he travels on school matters.
74. According to his knowledge as per SASA prescripts exemptions are given to parents or learners to pay school fees in fee paying schools to encourage them to render voluntary services. There are no other exemptions for educators not to pay rent at school premises.
Sebolaishi Johanna Monyebodi testifies under oath as follows:
75. She was employed at Susan Strydom in January 2004 and was staying at the school premises. She is the Acting Principal. When she joined the school, she was CS1 Educator. She found the Applicant at the school.
76. When she started residing at the school, she started paying rent as all are required to pay rent for water and electricity.
77. She is not staying in the Principal’s house but still staying in the house that she was staying when she started at the school as the Principal’s house is still locked. The Applicant’s curtains are still hanging in that house and they could not find the key for the house.
78. The SGB was told to write a letter to the Applicant to vacate the house but they did not do so. When Mrs Boshoff was the Principal, she wrote the letter to the Applicant to vacate the house. Mr Mabusela, the Circuit Manager showed them the letter of dismissal and informed the SGB to write the Applicant a letter that he was to vacate the house, but that was never done. The house is still locked but she could not say the Applicant was still staying there as she has never seen him at the house but just seen the curtains.
79. The SGB cannot exempt anyone who is staying at the school to pay rent. As an Acting Principal, she gets the housing allowance stipend since she is the Supervisor of the hostel. There is a tenant policy that provides that no one can stay in the school premises without paying rent. She could however not produce the policy as she did not have it in her possession.
80. She heard that Mr Baloyi who was rendering services at the school and was the friend to the Applicant was staying free at the school premises and it caused others to also stop paying rent.
81. She has however never seen the Tenant Policy on Page 92 of Bundle B. She was never consulted about the policy as a member of the staff when it was formulated at the school.
82. She explained the 3 quotation process when securing services for the school and that the Chairperson and the Principal of the school are the last ones to sign on the document that is prepared by the Financial Officer. The Principal signs as the authorizer and approval must be obtained from the Circuit Manager if the amount to be spent is high. The current system requires the form to be signed by the Chairperson but it must have 3 signatories.
83. She was using her own personal vehicle to attend school meetings and claim for travelling at R4.00 per kilometre. The procedure to claim is to attach the meeting invitation to the claim form, calculate the kilometers travelled, attach the attendance register of the meeting, if available and the Chairperson and the Treasurer will make the payment into the back account of the claimant. She is paid when she is back from the meeting. The Chairperson and the Circuit Manager authorise her claims.

The Respondent closed its case.

APPLICANT’S EVIDENCE

Raphuti David Selamolela testified under oath as follows:
84. He was employed at Susan Strydom School as the Principal on 01 June 2011. Before that he occupied a position of an Educator since June 2002. When the Principal at that time went for retirement, he was the Acting HOD in 2010 and when the Principal’s position was advertised, he applied, went for interviews and was appointed as Principal effective 01 June 2011.
85. He was subsequently dismissed in September 2020 and at that time of his dismissal in September 2020, he earned a basic salary of R49 804.00 per month. He was charged with 3 offences with several counts as it appears on Pages 1-4 of Bundle B. He was found guilty on all charges.
86. In relation to Charge 1, Count 1, the SGB received a message that the employees were looking for protective clothes. The SGB gave the Finance Committee permission to look for quotations. They interrogated the quotations and approved the one of Thunder Valley. Approval was signed by the Treasurer of the SGB. Nowhere in the prescripts that the Principal must seek approval from the Circuit Manager. The amount to be paid to Thunder Valley was R40 250.00. There was no approval from the Circuit Manager obtained by the Financial Officer and the Treasurer. The SGB are the ones to get approval from the Circuit Manager.
87. The role of the Principal is to advise on procedure for the purchase of goods. The SGB is the custodian of the school finances and he holds the professional management of the school. In the above mentioned transaction, he advised the SGB to seek approval from the Circuit Manager through the Finance Secretary. He never received any feedback if such approval was obtained from the Circuit Manager or not. It is not stated anywhere in the prescripts that the Principal must seek such approval. It was the responsibility of the SGB.
88. The school had an SGB in 2011 and members were Mr Kgomo, Mrs Mohoto and Mr Nenguza. The new SGB started in 2012 March/ April and some of its members were Mrs Lechelele, Ms Moloantoa, Ms Kekana, Mr Kgomo and their Chaiperson was Mrs Lechelelele. Treasurer was Ms Moloantoa, Deputy Chairperson was Mrs Kekana, Mr Nel was the secretary but also an educator at the school. Mrs Crause was the Financial Officer and she was the ex-officio member. This SGB’s term of office was 3 years.
89. In relation to Count 2, he was reporting at the Circuit Office on 30 November 2016 and he started there on 27 October 2016. He could therefore not be charged for an offence of approving a transaction when he was not at the school on the date as he was at the circuit office. He did not know who authorised that transaction.
90. On 19 February 2016, he was at the school and he knew about the workshop. It was agreed at the SGB meeting that they should attend the workshop to draft and amend the school policies. There were existing policies drafted in 2014, The SGB also budget in the school budget to develop school policies as part of their duties. He was in attendance at the meeting when the decision was taken to arrange the SGB workshop.
91. In that meeting in attendance was the Chairperson, Treasurer and the late Mr Malemela. In 2016, there was a new SGB and the Chairperson was Mr Malemela and after he passed away, Mr Kekana took over as the Chairperson. After the SGB made the decision on the workshop for policies, the Treasurer instructed the Finance Officer to look for the place where they will go to draft policies and to amend old policies.
92. The SGB took a decision to have the workshop at the place where they could work until late and the Finance Officer found Ezingweni Safari Lodge and Spa on the instructions of the Treasurer. All SGB members attended the workshop except Mr Hatting.
93. The school facilities were not suitable as some SGB members would have to travel long time, needed a proper place and could not sleep at the learner’s hostels. According to SASA, SGB can utilize the finance of a school if it is meant for school purposes and it was within the school budget approved by parents. Policies were drafted including Tenant Policy on Page 92 of Bundle B. Other policies which were drafted were at the school in the Principal’s office.
94. He did not hand them over to the new Principal because the department or the new Principal was supposed to arrange the hand-over. When the schools reopened on 27 October 2020, he was not at the school as he was instructed to report at the Circuit office when the schools reopened. He was given a letter to that effect and could not go back to school anymore.
95. Payment of R7 50,00 was made to MH Sethosa, the service provider with attended the workshop to draft policies for the school. She was appointed by the SGB, and there was a meeting by the SGB wherein the decision was taken to appoint her, and the minutes of the meeting were kept in the file in the Principal’s office, which were later occupied by Mrs Boshoff, the new Principal.
96. His relationship with Mrs Boshoff was not very good, as she was not happy with his appointment as the Principal and she even refused to give him the school documents when he was appointed. He started afresh to collect his own documents. Ms Boshoff even opened a labour court case to challenge her non-appointment to the Principal position at ELRC and Labour Court.
97. Regarding the non-payment of the municipality account, it was not his responsibility to pay it but that of the SGB as stated in the SASA. Municipal accounts were sent to the Financial Officer and the she would take them to the SGB, who then decided what amount to pay after making arrangements with municipality. He advised the municipality regarding these payments.
98. When the bill for 31 May 2019 was issued he was already at the circuit office, and at that time the school was owing R2 911 900.45. Mrs Boshoff was the school Principal.
99. With regard to Counts 5 and 6, it was the SGB that decided to replace his motor vehicle tyres and to also service his vehicle. He was present in the meetings when the SGB took those decisions. He used his vehicle to attend the school meetings for SANASE in Polokwane. SGB decided to replace his vehicle tyres so that he and the Chairperson would attend the meetings as his vehicle was not roadworthy due to the tyres. The SGB discussed and took the decision to replace the tyres for his vehicle.
100. He was part of that decision and he indicated to the SGB that the vehicle belonged to him and he did not want to find himself in trouble and the SGB overruled his advice and implemented their decision. He did not want to be seen as misusing the school finances. The Treasurer and the Financial Officer did the transaction and the SGB authorised the payment.
101. As his vehicle service was overdue, and he had to take learners on a sports trip, carry food and their medication, he reported to the SGB that learners have to take a sports trip and he could not use his vehicle as it was overdue for service. They agreed as a token of appreciation of learners to service his vehicle as they knew that he normally took food, attire and medication of learners on school trips. Majority of members of the SGB were in attendance at that meeting. There was no department or school vehicle to use for the learners. Learners went for summer games around Bloemfontein.
102. On Count 7, his vehicle broken down the engine between Polokwane and Mokopane when he was coming from a school meeting. He had to attend to other meetings. He brought it to the attention of the SGB and he had to take his vehicle to the dealership for repairs. SGB took a decision to hire him a vehicle.
103. There were minutes of the meeting of the SGB where the decision to hire him the vehicle was taken. He used the vehicle to travel to athletics, school meetings, SGB meetings, sports and principal’s meetings. The rented vehicle was for R19 856.92. His thinking was that it was allowed to use the school funds to pay for rental car in order to perform school duties and purposes.
104. In relation to Count 8, the vehicle was rented from Budget in order for him to attend meetings for Province and it was the SGB that took the decision to rent the vehicle to transport him and the Chairperson to the meetings. He could not use his vehicle as it broke down in the last week of January 2016 and was fixed at the end of March 2016.
105. On Charge 4, it was also the SGB that discussed with him to move to the school house. He moved out of his house at 12 Tuscany Park in Modimolle. He was staying in his house with his family and the SGB asked him to move into the house in August 2011 after his appointment in June 2011.
106. The SGB asked him to stay in the school house and he told them that he was paying for his house and could not pay rent at the school. The SGB decided to exempt him for payment of rent. Other people also stayed at the school and paid rent. Ms Boshoff paid rent because she indicated to him that she did not want to be exempted when she was the Principal.
107. After the SGB made the decision, he talked to the Financial Officer to assist with payment of the vehicle hire. She referred to him to Mr Hatting to issue him with petty cash. She spoke to Mr Hatting to use his credit card. Money was then transferred to Mr Hatting and money for the second car rental went to Ms Crause.
Monene Paulina Kekana testified under oath as follows:
108. She knew that Applicant as Principal of Susan Strydom School as she was the SGB member at the school in April 2012 until April 2015. She served two terms and the second term ended in April 2018.
109. She knew about the approval to be obtained from the Circuit Manager for the amount over R40 000.00. The SGB approved to secure protective clothing for staff and it was authorised by the Finance Committee to pay for the clothing. The Treasurer and the Finance Officer are the ones who are supposed to get approval from the Circuit Manager.
110. She was also aware of the workshop the SGB organised through the Finance Officer to draft policies. The Principal did not organise the workshop. The SGB took a decision at the meeting to draft policies and amend existing ones as the Circuit Office was looking for policies and they did not have them.
111. The service provider SH Sethosa was appointed to assist with the drafting of the policies and was paid for the work done by the SGB an amount of R7 500.00. They needed someone who could give them legal advice when drafting the policies.
112. The transaction for buying tyres for the Applicant’s vehicle was taken by the SGB as his car was used for school purposes. The SGB also took the decision to service the Applicant’s vehicle. The SGB furthermore organised the car rental from Avis for the school as well as from Budget. The decisions were taken collectively in the SGB meetings and the minutes were kept in the Principal’s office. She was present in the meeting when SGB took those decisions and she was also part of those decisions.
113. Regarding the non-payment of rent by the Applicant, the school made a Tenant Policy. The Principal was asked by the SGB to come stay at the school premises with the learners to look after them at night in case there is an emergency. The Applicant could not pay rent as arranged by the SGB because he also paid rental at his house.
114. On Count 2, Charge 2, the municipality is the services provider and it’s the duty of the Finance Officer and the SGB who are responsible to pay the service providers.
The Applicant closed his case.

ANALYSIS OF EVIDENCE AND ARGUMENTS

115. I considered all the relevant evidence and arguments submitted by the parties and in doing so, I have only referred to evidence and arguments that I regard necessary to substantiate my findings and dispose of the dispute.
116. The Applicant referred a dispute of unfair dismissal in terms of Section 191(1)(a) of the Labour Relations Act 66 of 1995, as amended (LRA). Section 188 of the LRA provides that a dismissal is deemed to be unfair if the employer fails to prove that the reason for dismissal is for a fair reason and in accordance with a fair procedure.
117. Dismissal was not in dispute in this matter and the Applicant only challenged the substantive fairness of his dismissal. Therefore, the onus of proof lied on the respondent to prove on a balance of probabilities that the Applicant’s dismissal was substantively fair.
118. In Sidumo and Another v Rustenburg Platinum Mines Ltd & Others [2007] 28 ILJ 2405 (CC); [2007] 12 BLLR 1097 (CC) the Court held that in arriving at a decision, a commissioner is not required to defer to the decision of the employer but that it should consider all the relevant factors and circumstances. Amongst the factors relevant to the determination of fairness are:
 The importance of the rule that was breached.
 The reasons for establishing the rule including its reasonableness.
 The harm caused by the employee’s conduct.
 The impact that it had on the trust relationship.
 The effect of setting a precedent.
 The reason why the employer imposed the sanction of dismissal.
 The basis of the employee’s challenge to the dismissal.
 Whether additional training and instruction may result in the employee not repeating the misconduct.
119. The substantive issues in dispute relate to whether there was a rule, whether the rule was known to the Applicant, whether the rule was reasonable, whether the applicant committed the alleged offence/s and whether dismissal was the appropriate sanction.
120. Both parties presented me with their evidence through the oral testimony and documentary evidence. The Applicant was dismissed of contraventions of the provisions of Sections 18(1)(a), 18((1)(b) and 18(1)(f) of the Employment of Educators Act, 76 of 1998, as amended (EEA) on three (3) charges with various counts as below. I have dealt with the charges and counts that are related to each other together.
CHARGE 1-Counts 1 and 2 and CHARGE 2-Count 1
121. The Applicant was found guilty of failing to comply with Section 8.6.5 of the Prescripts for the Management of Schools Funds in Public Schools of 2011 in that it was alleged that on 10 December 2012, he authorised a transaction in the amount of R40 250,00 to Thunder Valley Trading 5 for protective clothing for general workers and it was alleged that on 30 November 2016, he authorised a transaction for stationary to Deans in the amount of R47 040,80 without obtain the approval of the Circuit Manager for expenditure exceeding R30 000,00.
121.1 The testimony of Respondent by its main witness, Mr Seleka was that he was appointed as the investigator of the allegations into contraventions of Management of School Funds at Susan Strydom School, and the investigations included the governance of the SGB and professional management of the school by the Principal. He interviewed a number of individuals, some of whom are the Respondent ‘s witnesses who testified in this arbitration process. He confirmed under cross-examination that he did not interview the Applicant and the SGB members, yet he made adverse findings against the Applicant for misconduct he investigated and also recommended that the Applicant be charged, which eventually happened.
121.2 He furthermore conceded under cross-examination that no action was taken against the SGB by the Respondent for the findings on action for which they should be held responsible in terms of the functions of the SGB but yet recommended that the Principal be charged; and his justification was that he tried on 5 occasions to secure the investigation interviews with the SGB and the Applicant without success and the SGB was defensive of the Applicant. As a result, he concluded the investigations without SGB or Applicant’s statements on advise of Mr Mathabatha, the HR Manager.
121.3 Mr Seleka testified that it was the responsibility and functions of the SGB not the Principal for the administration of the school property, buildings, hostels as well as payment of service providers, like for purchases of school materials, stationery and municipality as well as maintenance of the bank account; and that there were no records of the existence of Finance Committee or any record of the minutes of the SGB meetings.
121.4 His testimony was that his investigation findings did not find approvals of the circuit manager for the two transactions and also no proof of deliveries of the items bought. In his view because there was no record of the procurement services by the SGB or the Finance Committee, even though when he was referred to section 8.6.5 of the Management of School Funds Prescripts and having conceded that the SGB was responsible, it meant that the Principal authorised payments without the approval of the circuit manager.
121.5 Both the Applicant and Ms Crause’s testimony corroborated each other that the SGB took the decision to procure the protective clothes for the general workers. Ms Crause‘s testimony was that the SGB told her that they will look for the quotations. The provisions of the Prescripts require the 3 quotations procedure to be followed by the SGB in approving and appointing the preferred service providers and furthermore in obtaining the approval of the circuit manager for an amount exceeding R30 000.00. Ms Crause’s testimony was further that that she never saw the approval of the circuit manager.
121.6 Ms Crause was the Financial Officer & Secretary of SGB Finance Committee. She furthermore testified that the SGB Treasurer approved the transaction. I therefore find that based on this testimony it was the SGB that took the decision to procure the protective clothing and also authorised this transaction not the Applicant.
121.7 It is clear that this procurement process was done and the protective clothes were delivered at the school, although not all clothes were received. The evidence of Ms Crause was materially contradictory to that of Mr Seleka in this regard as Mr Seleka testified that his investigations revealed that the protective clothes were never received at the school. However, the approval of the circuit manager was not obtained. Such approval must be obtained by the SGB as part of the procurement process not the Applicant. Although the Principal is an ex-officio member of the SGB, it is clear that the Prescripts do not require the Principal to obtain the approval of the Circuit Manager for those transactions. I therefore find that the Applicant should not have been charged and dismissed for failing to execute a function that solely lies in terms of the Prescripts in the legal responsibility of the SGB.
121.8 It is my considered view that due to lack of critical information on the governance of the school by the SGB and non-cooperation of the SGB members in the investigations Mr Seleka as the investigator, made findings which were not substantiated by any evidence but merely on assumptions. It is clear that the Respondent failed to take proper actions against the SGB in terms of the Prescripts for failing to execute its legislative duties properly, and such responsibility was placed on the shoulders of the Applicant as the Principal, who only had an advisory role in the SGB as an ex-officio member.
121.9 For Charge 1, Count 2, the undisputed evidence was led by the Applicant that as at 30 November 2016, the Applicant was no longer reporting at Susan Strydom School since 27 October 2016 as he was reporting at the circuit office. Therefore, the Applicant should not have been charged for this count. This reason is the same for Charge 2, Count 1 as it is also alleged that the transaction occurred on 30 November 2016 as well.
121.10 For Charge 2, Count 1, it was alleged that on 30 November 2016, the Applicant authorised a transaction in the amount R23 040.80 to Deans for the stationary that was never delivered to the school. The Respondent’s witness, Mr Seleka conceded that he did not know when the Applicant started reporting at the district office, and he could not indicate why his investigations did not deal with the Applicant’s movement to the district office and exactly when were the services procured, yet it was him as the investigator who opted to use that date of 30 November 2016 in the charge-sheet as it was the date that was on the financial transactions. This then meant that the services were procured according to him on 30 November 2016 which is in contradiction with Ms Crause’s evidence that the services were procured on 14 January 2016.
121.11 This contradiction casts doubt in one’s mind as Mr Seleka was the investigator and one of the people he testified he interviewed relating to this transaction was Ms Crause, yet they have different dates for this transaction.
121.12 Ms Crause’s testimony was that the stationary was delivered to the school on 14 January 2016 but it was the account that was not paid. This testimony was also confirmed by Ms Boshoff.
121.13 Ms Boshoff further testified that she received a call from Deans about the unpaid account for stationary and she made arrangements with them to pay it in two instalments. I find that firstly, the Applicant was no longer at Susan Strydom School on 30 November 2021 and could not have authorised the transaction. Secondly, I find that the transactions in relation to this charge was made by Ms Boshoff not the applicant. The documentary evidence presented by the Respondent which was supported by the evidence of Mrs Boshoff showed that the payments of amounts of R 24 000,00 and R23 040,80 were made to Deans on 19 October 2016 and 08 December 2016 respectively. If it’s the Respondent’s argument that approval of the circuit manager for this transaction was required, then the Respondent should have charged Ms Boshoff as she conceded that she authorised the two payments for the stationary not the Applicant.
121.14 However, the Respondent in its arguments has made a concession that based on the fact that it is clear that on 30 November 2016, the Applicant was already reporting at the circuit office, the finding of guilty on the two counts was substantively unfair. I therefore based on my findings agree with this concession as well.
CHARGE 2- Counts 2 and 3
122. It was alleged that the Applicant organised a legal workshop to draft SGB policy and paid R22 969,00 to Ezingweni Safari Lodge and Day Spa and R7 500,00 to M H Sethosa for legal advice and drafting of legal documents. On this charge the evidence of Respondent was presented by Ms Crause that it was the Applicant who asked her to obtain quotations and make arrangements for the workshop; that the Applicant as EFT user logged in the system and made payment after Ms Crause loaded it on the system. She further testified that she never saw the policies that were drafted by the service provider M H Sethosa because she was not required to attend the workshop and only the SGB members attended the workshop. She did not know which SGB members specifically attended the workshop.
123. The Applicant denied Ms Crause’s evidence and testified that it was the SGB that took the decision to have the workshop to draft and review school policies and to secure the services of M H Sethosa. His evidence was corroborated by SGB member Ms Kekana, the Deputy Chairperson in this respect whose evidence was that she was aware of the decision taken by the SGB to arrange the workshop and she also attended the workshop with other members of the SGB. A copy of sample policy on Tenant Policy was submitted into evidence by the Applicant as one of the policies that were drafted by the SGB with the assistance of M H Sethosa. Furthermore, the Applicant’s testimony was that he left the other policies drafted and reviewed in the Principal’s office. The Applicant also denied that he authorised the payment for the workshop.
124. It is apparent that the minutes of the SGB meetings were not found by Mr Seleka during his investigations according to his testimony. The Applicant testified that he left them at the school in the Principal’s office. Ms Boshoff testified that she did not find them in the Principal’s office. Ms Crause also did not know the whereabouts of the minutes and files. Therefore, such minutes were not presented in evidence by any of the parties. The Applicant testified that he requested the minutes for the disciplinary hearing but he did not get them. I have not been presented with any tangible evidence of what happened to the minutes, although the Respondent argued that the Applicant was probably responsible for the disappearance of those minutes and files. I however find that alleged probable conclusion by the Respondent has not been supported by any factual evidence.
125. The Respondent referred the applicant to the Basic Education Laws Amendment no 15 of 2011, and argued that the Applicant was ignorant in not knowing about the amended provisions specifically dealing with duties of the Principal. I accept the Applicant’s version that as a Principal, he is trained on the legislations that affect them like SASA and EEA. However, clearly if those legislations are amended and the Respondent did not train the Principals or custodians affected by the legislation amendments, it cannot be expected that they must know those amendments, acknowledging that it is not his line of expertise and operational responsibilities. They must certainly be taken through training as Mr Lekota has testified. I find that the Respondent has not been able to prove that such training was done.
126. Mr Lekola testified that he was responsible to workshop SGB on institutional governance including drafting school policies, and that the SGB should not have arranged the workshop at the Lodge with the services of an external service provider as it was the SGB’s responsibility to do that, guided by section 20 of SASA. He emphasised that in as much as he did not have evidence of the decisions taken by the SGB, the Principal’s role in terms of the prescripts was only to advise the SGB on financial management and procurement of services; and that the Principal’s responsibility as ex-officio of the SGB representing the HOD of the department in the SGB was to approach the HOD if he discovers any SGB violations of the prescripts. The Applicant’s testimony was that despite his advice to the SGB they insisted on the violations and he conceded that he did not report the SGB to the HOD of the Department. However, the Applicant was not charged for failing to execute his duty of properly advising the SGB on the transactions.
127. Ms Boshoff and Mr Lekola’s testimonies in this regard is not helpful as they were not part of the procurement processes except to express their own opinion on whether the workshop should have been held at the school premises because there were suitable facilities and arranging a workshop at the Ezingweni Safari Lodge with school funds was a wasteful expenditure.
128. I find that the oral evidence of the witnesses on this piece of evidence is mutually destructive. I will therefore consider which version is more probable under the circumstances. In the light of the documentary evidence presented to me and supported by oral evidence by Ms Crause of the arrangements of the workshop and invoices, which she confirmed took place, corroborated by the Applicant and Ms Kekana ‘s evidence, I find that it was the decision of SGB to arrange the workshop.
129. I find it very surprising that if it’s the version of the Respondent that it was not the SGB’s decision but the Applicant’s actions as alleged, why did the Respondent not subpoena the SGB members more especially the Chairperson and the Treasurer to come and testify on the transactions the Applicant alleged were made by the SGB. The Applicant insisted that it was the SGB’s decision and called the Deputy Chairperson of the SGB to corroborate his evidence. In the absence of such critical evidence that would have corroborated Ms Crause’s evidence, I find therefore find the evidence of the Applicant more probable and accept it and rejects the Respondent’s testimony.
130. Documentary evidence supports the coherent and consistent evidence of the Applicant. It is inconceivable that the SGB members can attend the workshop if they were not a decision-maker with regard to its arrangements. They would have certainly questioned the Applicant’s powers to take away their legislative functions on governance and financial management, and reasonably so, as it is apparent that the Respondent alleges that the Applicant took the decision without authority or consultation of the SGB.
131. I am therefore satisfied that the decision to arrange the workshop was that of the SGB, which subsequently made arrangements to have the workshop by the external service provider M H Sethosa and also authorised the payment for the workshop venue and the service provider who conducted the workshop for them. I am furthermore satisfied that there were school policies that were drafted and some reviewed, and the fact that such policies were not found at the school does not mean that there was no workshop.
CHARGE 2 –Count 4
132. The Applicant was found guilty of this count in that it was alleged that between 2012 and 2016, he failed to pay to pay the Modimolle Local Municipality for water, electricity and related services in the amount of R 766 900,28. The Respondent’s evidence and argument was that the Applicant is responsible for the function of payment of service providers like the municipality, however there is not basis that substantiate this responsibility, and also that he failed to ensure that the account t is serviced.
133. The Respondent’s witnesses conceded that the responsibility to pay municipality services was that of the SGB. The Applicant denied that it was his responsibility, and his argument is supported by provisions of Section 21(1)(d) of SASA which clearly puts this responsibility on the SGB not on the Principal.
134. The Therefore find that the Applicant was not correctly found guilty of this charge. The Respondent failed to take action against the SGB for failing to execute its function for payment of service providers.
CHARGE 2-Counts 5 and 6
135. In these two counts the Respondent alleged that the Applicant authorised the transaction of payment of R5 200,00 to Karee Bande for the maintenance of his vehicle registration number CNB 088L, and also for the service of the same vehicle in the amount of R7 432,89 to Hyundai Bela-Bela. Ms Crause testified that she was not aware of SGB decision approving the two transactions.
136. The Applicant conceded that it was his vehicle with registration no CNB 088L and further that this vehicle was taken for maintenance of new tyres at Karee Bande and also taken for service at Hyundai Bela-Bela on the above-mentioned dates. The Applicant however denied the allegations that he authorised the two payments thereof; and testified that it was the decision of the SGB and the SGB also paid for the transaction as the school did not have its own vehicle and he used his vehicle to attend school meetings. The Respondent’s testimony to some extent confirmed that the school, did not have its own vehicle and the Principal used his own vehicle to attend to all meetings and workshops and would claim the kilometres. The Applicant’s testimony was corroborated by Mrs Kekana and challenged Ms Crause’s evidence that it was the Applicant that authorised the transactions. The fact that the Applicant was paid travelling claims does not change the testimony that it was the SGB that took the above decisions The Applicant’s evidence as corroborated is accepted as more probable.
CHARGE 2-Counts 7 and 8
137. The two charges are related to allegations that the Applicant used R19 856,92 from the school funds to pay Avis Car Rental in March 2016 and R8 234,84 from Budget Car Rental in February 2016.
138. The Respondent’ testimony by Ms Crause was that the Applicant hired the car rental using credits cards of the deceased Mr Hatting and Ms Crause, and was the one that gave Ms Crause instructions to process EFT payments and he authorised such payments. She however testified that she was not aware of the SGB decision on this car rentals. It was also Ms Crause’s evidence that the Applicant used the vehicle for personal use and to attend meetings for the school and claimed for his official travelling. She emphasised that it was Applicant’s role to advise the SGB on how to manage school finances but he failed to do so.
139. The Applicant conceded that the car rentals were made for him but by the SGB and his defence was that his vehicle had mechanical problems and since he used it to attend school meetings, and also needed to take learners to Bloemfontein for sports, the SGB took the decision to rent the cars for him. The Applicant’s testimony was corroborated by Ms Kekana’s evidence who testified that the SGB collectively took that decision and authorised the payments of those transactions.
140. Again the same reasoning as above is applicable on these charges on corroboration of the Applicant’s evidence by his witness Ms Kekana against the Respondent’s witness Ms Crause on probability basis.
CHARGE 3
141. It was alleged that the Applicant contravened the provisions of Section 18(1)(f) of the EEA in that from June 2011 to the of the charge-sheet, he failed to pay rent for the Principal’s house he occupied.
142. The Respondent led evidence through its witnesses that those educators who stayed at the school residence were expected to pay rent. Mr Seleka testified on a lengthy basis about this charge but under cross-examination he could not indicate how much rent was the Applicant expected to pay as there seems to have been no rental policy at the school; and how much did the Applicant owe to the school. Mr Seleka also testified that he could not find any policy that exonerated the Applicant to pay rent. It was the Respondent’s testimony that the Applicant was paid hostel supervisor allowance as well as housing allowance.
143. The Applicant however testified that he was exempted by the SGB not to pay rent after they requested him to come and stay at the Principal’s house and after he indicated to them that he has his own house he was also paying rent which was near the school. It was also the Applicant’s evidence that the Tenant policy that supported the SGB’s decision was drafted at the workshop conducted by MH Sethosa which was submitted in evidence, with particular reference to Clause 6 of the said policy. This testimony was corroborated by Ms Kekana, the SGB Deputy Chairperson once more.
144. I find the Respondent’s submission about whether the Applicant or his wife paid for their house bond or rent irrelevant in this matter. It was common cause that the Applicant was staying at his family house at Tuscany Park in Modimolle which was near the school approximately 4km. The Applicant argued that there was no need for him to have stayed at the school due to the proximity of his house to the school and the fact that the house was also paid bond or rent. None of the Respondent’s witnesses could deny the existence of the SGB decision as they testified that they were not in the SGB meeting.
145. It is my considered view that that the fact that there was no record of the SGB minutes found at the school by Mr Seleka during the investigations alleged does not prove that the SGB did not take those decisions, especially in this case when the Deputy Chairperson of the SGB testified that the SGB took those decisions in its meetings.
146. It is clear that the Respondent only charged the Applicant for non-payment of rent and Mr Seleka’s evidence was that some educators told him during the investigations that they were also not paying rent because the Applicant was not paying rent; and the witnesses themselves testified that they also did not pay rent as well. more specifically Mr Molokomme who merely stopped paying rent and relied on rumours that the Applicant and Mr Baloyi were not paying rent without knowing the reasons thereof.
147. The Respondent has not given evidence why those educators were also not charged for failing to pay rent but the Applicant alone was charged when there was clearly a contravention of the provisions of Section 18(1)(f) of the EEA by those educators. It was immaterial whether the Principal was paying or not. They should have complained to the SGB if they believed the Principal was not paying rent. The fact of the matter is that there was a rule for rental payment and it was applicable to all educators staying at the school premises irrespective of your position at the school. Ms Boshoff and Ms Monyebodi confirmed this in their testimonies. I find that the Respondent’s selective discipline towards the Applicant in this respect was inconsistent application of the rule.
148. I agree with the Applicant’s argument that the Respondent has no legal basis to hold the Applicant liable for rental payment when there is no proof of a rental agreement with a specific rental amount payable. It was testified that all educators staying at the school had lease agreements with the school. No evidence of such lease agreements signed with the Applicant or the other educators was adduced.
149. I consequently find that the Respondent has failed to discharge it onus of proof to prove this charge against the Applicant.
150. Based on my findings above, I find that the Respondent has not been able to discharge its onus to prove on a balance of probabilities that the Applicant was guilty of all charges and that dismissal was an appropriate sanction.
151. I consequently find that the Applicant’s dismissal was substantively unfair.
152. The Applicant wants retrospective reinstatement. I have no reason not to award the Applicant the relief sought in terms of Sections 193 of the LRA. This is the primary remedy which has a purpose to restore the employee to his or her employment contract. I will also the Respondent to pay the Applicant order back- pay from the date of dismissal for the loss of income after his dismissa,l which has been found to be unfair.

AWARD

153. I find that the Applicant’s dismissal was substantively unfair.
154. I order the Respondent to reinstate the Applicant with retrospective effect without loss of benefits and on the same or similar terms of conditions of employment that prevailed at the time of the dismissal on 11 November 2019.
155. The Respondent is further ordered to pay the Applicant back-pay in the amount of R1 195 296,00 calculated at the rate of the Applicant’s monthly basic remuneration of R49 804,00 at the date of the dismissal.
156. Payment of the back-pay must be made to the Applicant on or before 15 December 2021.
157. The Employee must report for duty on 01 December 2021.

Grace Mafa-Chali
ELRC Panellist