PSES115-18/19WC
Text
ELRC343-21/22GP
Award Date:
06 April 2022
Case Number: ELRC343-21/22GP
Commissioner: Vusi Moyo
Date of Award: 06 April 2022
In the ARBITRATION between
Nonhlanhla Madonsela APPLICANT
And
Department of Education – Gauteng RESPONDENT
DETAILS OF HEARING AND REPRESENTATION
1. This is an arbitration award issued in terms of Section 138(7)(a) of the Labour Relations Act 66 of 1995 as amended (hereafter referred to as “LRA”).
2. The matter was set down for an arbitration process in terms of Section 191(5)(a) of the LRA. The arbitration hearing was held virtually under the auspices of the ELRC over a period of five days.
3. The Applicant was in attendance and represented by a SADTU Representative, Ms Pexie Jafta. The Respondent was represented by an Official of the Gauteng Department of Education, Ms Emily Magadla. The proceedings were conducted in English and were both digitally and manually recorded.
ISSUE TO BE DECIDED
4. I am called upon in my capacity as a Commissioner of the ELRC to decide on whether the Applicant’s dismissal was both substantively and procedurally fair or not.
RELIEF SOUGHT
5. The Applicant sought reinstatement as a remedy for the alleged unfair dismissal in terms of section 193 of the LRA.
BACKGROUND TO THE ISSUE
6. The Applicant was dismissed for misconduct from her position as a Teacher at Motjoli Primary School in the Johannesburg North District. Bundles of documents were submitted via email and the authenticity and veracity of these documents was not disputed.
SURVEY OF EVIDENCE AND ARGUMENT
7. As noted above in paragraph 3, these proceedings were digitally recorded, what appears hereunder constitutes a summary of the evidence deduced by the parties in so far as is relevant for the purpose of this arbitration; it is by no means a comprehensive minute of what transpired in the course of these proceedings. Section 138(7)(a) of the LRA stipulates that within 14 days of conclusion of the arbitration proceedings the Commissioner must issue an arbitration award with brief reasons. What follows underneath accordingly serves as my brief reasons:
8. The Respondent called five witnesses to lead its evidence whereas the Applicant party led evidence through two witnesses. All witnesses testified under oath and all testimony is captured on record.
9. The Applicant was proffered with one count of misconduct as follows:
“It is alleged that on or around November 2018, you committed an act of fraud with regard to the Grade 3 scripts for English and Mathematics final exam for 2018, in that you gave learners fraudulent marks.”
10. It emerged as common cause that there is no evidence to sustain this charge. This was succinctly encapsulated by the MEC of Education in Gauteng, Mr Panyaza Lesufi, when he stated in the Appeal Outcome that,
“There is sufficient evidence presented by the employer witnesses’ testimonies and documentary evidence to conclude that you did not keep the scripts for a period of three years as required by policy. However, there seems to be no evidence to support that the marks were fraudulent, the issue of fraud does not seem to have been central focus during the hearing, understandably so because the evidence to support a case of fraud would have to be the learners’ scripts which are missing.”
11. The same approach was taken by the Respondent at arbitration. No evidence of fraud was led but rather comprehensive evidence on a failure to keep the scripts for three years in terms of the department’s policy. Hence, due to conspicuous irrelevance, there is no need to capture same on this award.
12. Closing arguments were submitted in writing by both parties.
ANALYSIS OF EVIDENCE AND ARGUMENT
13. It is common cause that the Respondent complied with statutory provisions for procedural fairness.
14. Substantively, the Respondent had no reason for dismissal on neither the proffered charge of fraud nor the failure to keep scripts for three years. On the offence related to a failure to keep scripts for three years, I found that the Respondent failed to prove that the Applicant was inducted on this policy. None of the submitted attendance registers bore her name and she was relatively new to the Gauteng Department of Education. Furthermore, the Applicant’s version that the Kwazulu-Natal Department of Education where she was transferred from, does not have the same policy was not contested.
15. Under the circumstances, it remains bizarre and puzzling how an employee was dismissed for an offence she was not charged for.
16. The employer could have simply withdrawn this allegation and amended it in order to properly reflect the correct offence. It is my considered view that the word “fraud” was forced onto the charge to amplify the seriousness of the misconduct in order to justify a sanction of summary dismissal.
17. This matter is further made absurd by the fact that there is no evidence led on who was deceived by the alleged fraudulent activity as there was never a formal complaint lodged that the marks were incorrect or unacceptable. The lack of verifying scripts is not evidence of fraud. No learner/ parent/ Teacher/ Official complained and presented evidence that the marks allocated to learners were patently wrong/ inaccurate/ inflated nor lowered. In the absence of scripts, there is no cogent reason why the Respondent could not accept that the marks allocated by the Teacher were credible as they were also accepted by the HOD, her Supervisor. The alleged fraudulent marks were likewise not presented as distinctly out of sync with the learner’s progressive pattern of performance over the course of different school terms. No evidence of undue personal gain by neither Teacher nor learners was led to breathe life into the alleged fraud.
18. It was not disputed that this was the first time that the Applicant failed to keep the scripts for three years. She was at the school for approximately half of that period. In dealing with such circumstances, the Constitutional Court has espoused in the landmark Sidumo judgment that one of the pillars on which a fair dismissal stands, is an assessment of whether ‘further instruction or training’ could have assisted to avoid a repetition. The Respondent failed to apply this fundamental principle.
19. The Respondent created a “fraud” issue out of suspicions that a Teacher has fraudulently awarded undue marks to learners based on unsubstantiated suspicions. In Mbanjwa v Shoprite Checkers (Pty) Ltd and Others (DA4/11) [2013] ZALAC 129 (handed down on 7 November 2013) the Labour Appeal Court held that the test at all times remains one of balance of probabilities. Reasonable or strong suspicion is not adequate to terminate the employment relationship. In this case, the Respondent’s case was not supported by the facts. The marks awarded to leaners remain valid and accurate until proven otherwise.
20. For the reasons stated above, I find that the Respondent has failed to discharge the onus of proving on a balance of probabilities that the dismissal of the Applicant was substantively fair and that dismissal was the appropriate sanction. I therefore conclude on a balance of probabilities that the dismissal of the Applicant has been procedurally fair but substantively unfair.
21. In casu, the Applicant asked for reinstatement in terms of Section 193 of the LRA should I find in her favour. I see no reason to deviate from this request. In terms of Section 193 – 195 of the LRA, I am empowered to make this decision.
22. Subsequently, I agree that reinstatement would be just and suitable under the circumstances. This is simply because the Respondent dismissed the Applicant in the glaring absence of evidence of misconduct.
23. There is no iota of evidence adduced to prove that the marks were fraudulent. This unfortunate case is a classic example of misuse and abuse of powers. The employer conceded to the lack of evidence of fraud but nonetheless brazenly elected to dismiss Ms Madonsela for fraud. This is morally and legally offensive.
24. It was not contested that Ms Madonsela is a Teacher with a clean record.
25. Moreover, the Respondent led no evidence on the impossibility of reinstating the employee. Due to the retrospective nature of reinstatement, the Respondent must ensure that the Applicant receives her back pay from date of dismissal. Counting from 18 May 2021 as date of dismissal, the Applicant would have been unjustly out of work for a period of 12 months at date of reinstatement. Both parties agreed that the Applicant’s monthly salary was R24 000, 00. I therefore present the award as detailed below:
AWARD
26. The dismissal of the Applicant, Ms Nonhlanhla Madonsela, by the Respondent, Gauteng Department of Education, is procedurally fair but substantively unfair.
27. I therefore order the Respondent to reinstate the Applicant on the same terms and conditions that existed prior to this unfair dismissal. The Applicant must report for duty at the Respondent’s premises on the 18th of May 2022.
28. I also order the Respondent to pay the Applicant R288 000, 00 in back-pay by no later than the 17th of May 2022. In case of non-payment, this amount shall begin to accrue interest from the 18th of May 2022 in terms of Section 143 (2) of the Labour Relations Act 66 of 1995 as amended, read with the Prescribed Rate of Interest Act, 1975 (Act No. 55 of 1975).
Dated and signed on the 06th of April 2022.
Vusi Moyo
ELRC Panellist
Commissioner: Vusi Moyo
Date of Award: 06 April 2022
In the ARBITRATION between
Nonhlanhla Madonsela APPLICANT
And
Department of Education – Gauteng RESPONDENT
DETAILS OF HEARING AND REPRESENTATION
1. This is an arbitration award issued in terms of Section 138(7)(a) of the Labour Relations Act 66 of 1995 as amended (hereafter referred to as “LRA”).
2. The matter was set down for an arbitration process in terms of Section 191(5)(a) of the LRA. The arbitration hearing was held virtually under the auspices of the ELRC over a period of five days.
3. The Applicant was in attendance and represented by a SADTU Representative, Ms Pexie Jafta. The Respondent was represented by an Official of the Gauteng Department of Education, Ms Emily Magadla. The proceedings were conducted in English and were both digitally and manually recorded.
ISSUE TO BE DECIDED
4. I am called upon in my capacity as a Commissioner of the ELRC to decide on whether the Applicant’s dismissal was both substantively and procedurally fair or not.
RELIEF SOUGHT
5. The Applicant sought reinstatement as a remedy for the alleged unfair dismissal in terms of section 193 of the LRA.
BACKGROUND TO THE ISSUE
6. The Applicant was dismissed for misconduct from her position as a Teacher at Motjoli Primary School in the Johannesburg North District. Bundles of documents were submitted via email and the authenticity and veracity of these documents was not disputed.
SURVEY OF EVIDENCE AND ARGUMENT
7. As noted above in paragraph 3, these proceedings were digitally recorded, what appears hereunder constitutes a summary of the evidence deduced by the parties in so far as is relevant for the purpose of this arbitration; it is by no means a comprehensive minute of what transpired in the course of these proceedings. Section 138(7)(a) of the LRA stipulates that within 14 days of conclusion of the arbitration proceedings the Commissioner must issue an arbitration award with brief reasons. What follows underneath accordingly serves as my brief reasons:
8. The Respondent called five witnesses to lead its evidence whereas the Applicant party led evidence through two witnesses. All witnesses testified under oath and all testimony is captured on record.
9. The Applicant was proffered with one count of misconduct as follows:
“It is alleged that on or around November 2018, you committed an act of fraud with regard to the Grade 3 scripts for English and Mathematics final exam for 2018, in that you gave learners fraudulent marks.”
10. It emerged as common cause that there is no evidence to sustain this charge. This was succinctly encapsulated by the MEC of Education in Gauteng, Mr Panyaza Lesufi, when he stated in the Appeal Outcome that,
“There is sufficient evidence presented by the employer witnesses’ testimonies and documentary evidence to conclude that you did not keep the scripts for a period of three years as required by policy. However, there seems to be no evidence to support that the marks were fraudulent, the issue of fraud does not seem to have been central focus during the hearing, understandably so because the evidence to support a case of fraud would have to be the learners’ scripts which are missing.”
11. The same approach was taken by the Respondent at arbitration. No evidence of fraud was led but rather comprehensive evidence on a failure to keep the scripts for three years in terms of the department’s policy. Hence, due to conspicuous irrelevance, there is no need to capture same on this award.
12. Closing arguments were submitted in writing by both parties.
ANALYSIS OF EVIDENCE AND ARGUMENT
13. It is common cause that the Respondent complied with statutory provisions for procedural fairness.
14. Substantively, the Respondent had no reason for dismissal on neither the proffered charge of fraud nor the failure to keep scripts for three years. On the offence related to a failure to keep scripts for three years, I found that the Respondent failed to prove that the Applicant was inducted on this policy. None of the submitted attendance registers bore her name and she was relatively new to the Gauteng Department of Education. Furthermore, the Applicant’s version that the Kwazulu-Natal Department of Education where she was transferred from, does not have the same policy was not contested.
15. Under the circumstances, it remains bizarre and puzzling how an employee was dismissed for an offence she was not charged for.
16. The employer could have simply withdrawn this allegation and amended it in order to properly reflect the correct offence. It is my considered view that the word “fraud” was forced onto the charge to amplify the seriousness of the misconduct in order to justify a sanction of summary dismissal.
17. This matter is further made absurd by the fact that there is no evidence led on who was deceived by the alleged fraudulent activity as there was never a formal complaint lodged that the marks were incorrect or unacceptable. The lack of verifying scripts is not evidence of fraud. No learner/ parent/ Teacher/ Official complained and presented evidence that the marks allocated to learners were patently wrong/ inaccurate/ inflated nor lowered. In the absence of scripts, there is no cogent reason why the Respondent could not accept that the marks allocated by the Teacher were credible as they were also accepted by the HOD, her Supervisor. The alleged fraudulent marks were likewise not presented as distinctly out of sync with the learner’s progressive pattern of performance over the course of different school terms. No evidence of undue personal gain by neither Teacher nor learners was led to breathe life into the alleged fraud.
18. It was not disputed that this was the first time that the Applicant failed to keep the scripts for three years. She was at the school for approximately half of that period. In dealing with such circumstances, the Constitutional Court has espoused in the landmark Sidumo judgment that one of the pillars on which a fair dismissal stands, is an assessment of whether ‘further instruction or training’ could have assisted to avoid a repetition. The Respondent failed to apply this fundamental principle.
19. The Respondent created a “fraud” issue out of suspicions that a Teacher has fraudulently awarded undue marks to learners based on unsubstantiated suspicions. In Mbanjwa v Shoprite Checkers (Pty) Ltd and Others (DA4/11) [2013] ZALAC 129 (handed down on 7 November 2013) the Labour Appeal Court held that the test at all times remains one of balance of probabilities. Reasonable or strong suspicion is not adequate to terminate the employment relationship. In this case, the Respondent’s case was not supported by the facts. The marks awarded to leaners remain valid and accurate until proven otherwise.
20. For the reasons stated above, I find that the Respondent has failed to discharge the onus of proving on a balance of probabilities that the dismissal of the Applicant was substantively fair and that dismissal was the appropriate sanction. I therefore conclude on a balance of probabilities that the dismissal of the Applicant has been procedurally fair but substantively unfair.
21. In casu, the Applicant asked for reinstatement in terms of Section 193 of the LRA should I find in her favour. I see no reason to deviate from this request. In terms of Section 193 – 195 of the LRA, I am empowered to make this decision.
22. Subsequently, I agree that reinstatement would be just and suitable under the circumstances. This is simply because the Respondent dismissed the Applicant in the glaring absence of evidence of misconduct.
23. There is no iota of evidence adduced to prove that the marks were fraudulent. This unfortunate case is a classic example of misuse and abuse of powers. The employer conceded to the lack of evidence of fraud but nonetheless brazenly elected to dismiss Ms Madonsela for fraud. This is morally and legally offensive.
24. It was not contested that Ms Madonsela is a Teacher with a clean record.
25. Moreover, the Respondent led no evidence on the impossibility of reinstating the employee. Due to the retrospective nature of reinstatement, the Respondent must ensure that the Applicant receives her back pay from date of dismissal. Counting from 18 May 2021 as date of dismissal, the Applicant would have been unjustly out of work for a period of 12 months at date of reinstatement. Both parties agreed that the Applicant’s monthly salary was R24 000, 00. I therefore present the award as detailed below:
AWARD
26. The dismissal of the Applicant, Ms Nonhlanhla Madonsela, by the Respondent, Gauteng Department of Education, is procedurally fair but substantively unfair.
27. I therefore order the Respondent to reinstate the Applicant on the same terms and conditions that existed prior to this unfair dismissal. The Applicant must report for duty at the Respondent’s premises on the 18th of May 2022.
28. I also order the Respondent to pay the Applicant R288 000, 00 in back-pay by no later than the 17th of May 2022. In case of non-payment, this amount shall begin to accrue interest from the 18th of May 2022 in terms of Section 143 (2) of the Labour Relations Act 66 of 1995 as amended, read with the Prescribed Rate of Interest Act, 1975 (Act No. 55 of 1975).
Dated and signed on the 06th of April 2022.
Vusi Moyo
ELRC Panellist