ELRC 190-20/21 FS
Text
ELRC 190-20/21 FS
Award Date:
24 June 2022
Arbitrator: Minette van der Merwe
Case Reference No.: ELRC 190-20/21 FS
Date of award: 24 June 2022
In the Inquiry by Arbitrator between:
Itumeleng Sydney Motlhabane Applicant
and
Department of Education – Free State Respondent
DETAILS OF HEARING AND REPRESENTATION
1. This is the arbitration award issued in terms of section 191 of the Labour Relations Act 66 of 1995, as amended, (“LRA”) between Itumeleng Sydney Motlhabane (the Applicant) and the Department of Education – Free State (the Respondent), was held on 3 June 2022 and 21 June 2022.
2. The matter had been postponed multiple times and for various reasons in between the first date of arbitration, 26 July 2021, and its finalization.
3. The matter was arbitrated at the Respondent’s premises in Bloemfontein on both the dates.
4. Parties were present throughout and duly represented. The Applicant was represented by his attorney, Mr J Nortje from Kramer Weihmann Inc whereas the Respondent was represented by Mr V Gubuza, Labour Relations Officer.
5. The proceedings were digitally recorded, and hand written notes were kept.
6. Interpretation was not required.
ISSUE TO BE DECIDED
7. Whether the dismissal of the Applicant, for reasons related to misconduct, was fair or not.
8. The Respondent raised a point in limine that the sanction of dismissal for misconduct was not implemented, and that the Applicant’s services were terminated by operation of law.
9. In the event that I find in his favour, the Applicant sought to be retrospectively reinstated into his previous position, alternatively, into a similar position where he does not work with children.
BACKGROUND TO THE ISSUE
10. The Applicant had been employed as an Education at Ikaelelo Secondary School in Bloemfontein. He had commenced employment with the Respondent on 1 May 2001 and had earned a basic salary of R 29 464.10 per month at the time of his alleged dismissal.
11. The Applicant was suspended on full pay and charged with misconduct as follows (page 4 of “A1”:
1) It is alleged that during 2014 to March 2016 you had a sexual relationship with Mmami Mekgwe, a grade 12 learner at Ikaelelo Secondary School (section 17(1)(c).
2) It is alleged that you conducted yourself in an improper, disgraceful or unacceptable manner when during 2014 to March 2016 you had a sexual relationship with Mmami Mekgwe, as grade 12 learner at Ikaelelo Secondary School (section 18(1)(q).
3) It is alleged that you unjustifiably prejudiced the administration, efficiency and discipline of the Department o Education and the School where you are employed in 2014 to March 2016 by having a sexual relationship with Mmami Mekgwe (section 18(1)(f).
12. The aforementioned disciplinary hearing was concluded and a dismissal notice was issued on 18 March 2018.
13. The Applicant continued to receive his salary until June 2022 when it was stopped.
14. An instruction was issued by SACE (South African Council of Educators), dated 20 March 2018, after a SACE disciplinary hearing was held on 24 June 2017 for the same or similar charges (paragraph 11), in terms of which the Respondent was informed that the Applicant was struck of the roll of educators and that his name was submitted to the Department of Social Development that he was to be listed on the register as a person unfit to work with children.
SURVEY OF EVIDENCE AND ARGUMENT
15. The testimonies, under oath, are fully captured on the record of proceedings, and a copy of the digital recording is available on request from the ELRC. I therefore do no deem it necessary to repeat it verbatim in this award. Below is a summary of the evidence. If evidence is not captured herein, it does not mean that it was not considered.
Documentary:
16. Bundles “A1” and “A2” was submitted into evidence by the Applicant, and “R” by the Respondent. Its veracity was not disputed and it was accepted as it purported to be. Pre-arbitration minutes were concluded and signed, and was submitted into evidence as “P”.
Evidence from the Respondent:
17. The only witness, Vuyisile Gubuza (“Gubuza”), testified that the Applicant’s employment was terminated by operation of law, and he was not dismissed for misconduct. The dismissal of the Applicant, for misconduct, was not implemented, for reasons unknown, and he continued to be employed by the Respondent, and had received his salary until June 2020 (“A2”).
18. Subsequent to the failure to implement the dismissal, the Respondent received correspondence from SACE that it had concluded the Applicant’s hearing under its own auspices for allegations of sexual misconduct, and that the finding was that the Applicant was to be removed from the roll of Educators and registered with the Department of Social Development as an individual considered unfit to work with children.
19. The Respondent received the aforementioned instruction from SACE, which document was dated 20 March 2018. Despite this instruction, the Applicant continued to be paid his salary until June 2020, but did not return to work as an Educator. The Applicant’s services were ultimately terminated, and on persal the date of termination was backdated to 14 May 2018. The Respondent only implemented the termination when it became aware of an administrative error that had the Applicant receive a salary until June 2020.
20. The Applicant’s employment was terminated by operation of law in accordance with section 15(2) of the Employment of Educators Act (76 of 1998) as amended (the EEA) as a result of the finding from SACE. An employment relationship could not exist between the Applicant and the Respondent if SACE had removed the Applicant from the roll, and additionally, found that he was unfit to work with children, as SACE registration was a prerequisite for employment with the Respondent.
21. He confirmed that the Applicant was on paid suspension since September 2016 until the outcome of his hearing, being dismissal, on 18 March 2018, and had remained an employee of the Respondent until the termination was implemented. He could not speculate whether the Applicant was served with the outcome from the SACE hearing, and he did not believe it was the duty of the Respondent to convey the outcome to the Applicant of SACE’s behalf. The Applicant should have been aware that an outcome was pending from SACE as he had attended that disciplinary hearing, and it was unlikely that he was not served with the outcome. He denied the Applicant’s version that he had appealed the dismissal by the Respondent internally, and added that the Respondent had no records that such an appeal was ever lodged by the Applicant.
Evidence from the Applicant:
22. The Applicant, Itumeleng Sydney Motlhabane, testified that he had last rendered services as an Educator on the day that he was suspended, having been 2 September 2016, and that he had received a salary until June 2020. He denied any allegations of sexual misconduct against a Learner, which he also denied during his disciplinary hearing with the Respondent and the hearing if SACE. He was served with a letter of dismissal from the Respondent on 27 March 2018, and he had appealed the outcome through his union, SADTU. He had never received the outcome of the disciplinary hearing and did not have an opportunity to submit factors in mitigation. The outcome of the appeal has never been received by him.
23. He first became aware of the outcome and finding from the SACE hearing only during his preparation for the arbitration, during July 2021. Through his attorney he had addressed correspondence to SACE to obtain the hearing outcome, but to date nothing has been received. He confirmed that, to date, he has not yet appealed the outcome of the SACE hearing, as he did not have the money to do so. He believed he should be re-employed by the Respondent in a position where he did not have to work with children so he could earn a salary in order to afford the appeal of the SACE finding and determination. He agreed that, currently, the finding of SACE is uncontested.
24. He never received notification of the termination of his employment with the Respondent, resulting from the outcome of the SACE hearing. He confirmed that registration with SACE is a prerequisite for employment with the Respondent, and that the finding from the SACE hearing rendered him unemployable by the Respondent.
ANALYSIS OF EVIDENCE AND ARGUMENT
25. Parties were given an opportunity to make oral closing arguments. Same was considered, but will not be repeated herein.
26. Section 190 defines the date of dismissal as:
“(1) (a) the date on which the contract of employment terminated; or
(b) the date on which the employee left the service of the employer.”
27. If the definition above is considered, it cannot be held that the Applicant was dismissed as a result of the outcome of the disciplinary hearing with the Respondent and on the date on which the Applicant became aware of the finding, being 27 March 2018.
28. It was the Respondent’s case that the dismissal as a result of the disciplinary hearing with the Respondent, dated 18 March 2018, was not implemented for unknown reasons. The Applicant was unable to dispute this version. The Applicant’s salary further continued to be paid to him thereafter.
29. The finding from SACE, dated 20 March 2018, was further only implemented during 2020, but backdated to 14 May 2018. It was common cause that the Applicant continued to receive his salary until June 2020, but had not rendered any services as an Educator since 2 September 2016.
30. The Respondent relies on section 15(2) of the EEA in justification for the termination of the Applicant’s employment, and argued that the Applicant’s services were terminated by operation of law. Section 15(2) of the EEA states:
“If the name of an educator is struck of the register of educators kept by the South African Council for Educators, the educator shall, notwithstanding anything to the contrary contained in this Act, be deemed to have resigned with effect from the day following immediately after the date on which the educator’s name was so struck off. “
31. It is thus clear from section 15(2) of the EEA that the Applicant was deemed to have resigned on 21 March 2018, being the day after the Applicant was struck off the roll.
32. From the evidence it is clear that the Applicant was not dismissed for misconduct, but was deemed to have resigned in accordance with section 15(2) of the EEA.
33. The Applicant confirmed that he had not appeal the SACE outcome with SACE. The finding of SACE thus remains in effect, and the Applicant is not employable by the Respondent or any institution that works with children, in terms thereof. The Applicant’s approach to first challenge his dismissal with the Respondent, and thereafter challenge the SACE outcome is nonsensical. In order to have had any success with the matter before the ELRC, the SACE finding first needed to have been challenged.
AWARD
34. The Applicant, Itumeleng Sydney Matlhabane, was unable to establish that he was dismissed by the Respondent on allegations of misconduct.
35. The Applicant’s employment was terminated by operation of law, and the Applicant is deemed to have resigned.
36. The Applicant is not entitled to any relief.
Minette van der Merwe
ELRC Panelist
Case Reference No.: ELRC 190-20/21 FS
Date of award: 24 June 2022
In the Inquiry by Arbitrator between:
Itumeleng Sydney Motlhabane Applicant
and
Department of Education – Free State Respondent
DETAILS OF HEARING AND REPRESENTATION
1. This is the arbitration award issued in terms of section 191 of the Labour Relations Act 66 of 1995, as amended, (“LRA”) between Itumeleng Sydney Motlhabane (the Applicant) and the Department of Education – Free State (the Respondent), was held on 3 June 2022 and 21 June 2022.
2. The matter had been postponed multiple times and for various reasons in between the first date of arbitration, 26 July 2021, and its finalization.
3. The matter was arbitrated at the Respondent’s premises in Bloemfontein on both the dates.
4. Parties were present throughout and duly represented. The Applicant was represented by his attorney, Mr J Nortje from Kramer Weihmann Inc whereas the Respondent was represented by Mr V Gubuza, Labour Relations Officer.
5. The proceedings were digitally recorded, and hand written notes were kept.
6. Interpretation was not required.
ISSUE TO BE DECIDED
7. Whether the dismissal of the Applicant, for reasons related to misconduct, was fair or not.
8. The Respondent raised a point in limine that the sanction of dismissal for misconduct was not implemented, and that the Applicant’s services were terminated by operation of law.
9. In the event that I find in his favour, the Applicant sought to be retrospectively reinstated into his previous position, alternatively, into a similar position where he does not work with children.
BACKGROUND TO THE ISSUE
10. The Applicant had been employed as an Education at Ikaelelo Secondary School in Bloemfontein. He had commenced employment with the Respondent on 1 May 2001 and had earned a basic salary of R 29 464.10 per month at the time of his alleged dismissal.
11. The Applicant was suspended on full pay and charged with misconduct as follows (page 4 of “A1”:
1) It is alleged that during 2014 to March 2016 you had a sexual relationship with Mmami Mekgwe, a grade 12 learner at Ikaelelo Secondary School (section 17(1)(c).
2) It is alleged that you conducted yourself in an improper, disgraceful or unacceptable manner when during 2014 to March 2016 you had a sexual relationship with Mmami Mekgwe, as grade 12 learner at Ikaelelo Secondary School (section 18(1)(q).
3) It is alleged that you unjustifiably prejudiced the administration, efficiency and discipline of the Department o Education and the School where you are employed in 2014 to March 2016 by having a sexual relationship with Mmami Mekgwe (section 18(1)(f).
12. The aforementioned disciplinary hearing was concluded and a dismissal notice was issued on 18 March 2018.
13. The Applicant continued to receive his salary until June 2022 when it was stopped.
14. An instruction was issued by SACE (South African Council of Educators), dated 20 March 2018, after a SACE disciplinary hearing was held on 24 June 2017 for the same or similar charges (paragraph 11), in terms of which the Respondent was informed that the Applicant was struck of the roll of educators and that his name was submitted to the Department of Social Development that he was to be listed on the register as a person unfit to work with children.
SURVEY OF EVIDENCE AND ARGUMENT
15. The testimonies, under oath, are fully captured on the record of proceedings, and a copy of the digital recording is available on request from the ELRC. I therefore do no deem it necessary to repeat it verbatim in this award. Below is a summary of the evidence. If evidence is not captured herein, it does not mean that it was not considered.
Documentary:
16. Bundles “A1” and “A2” was submitted into evidence by the Applicant, and “R” by the Respondent. Its veracity was not disputed and it was accepted as it purported to be. Pre-arbitration minutes were concluded and signed, and was submitted into evidence as “P”.
Evidence from the Respondent:
17. The only witness, Vuyisile Gubuza (“Gubuza”), testified that the Applicant’s employment was terminated by operation of law, and he was not dismissed for misconduct. The dismissal of the Applicant, for misconduct, was not implemented, for reasons unknown, and he continued to be employed by the Respondent, and had received his salary until June 2020 (“A2”).
18. Subsequent to the failure to implement the dismissal, the Respondent received correspondence from SACE that it had concluded the Applicant’s hearing under its own auspices for allegations of sexual misconduct, and that the finding was that the Applicant was to be removed from the roll of Educators and registered with the Department of Social Development as an individual considered unfit to work with children.
19. The Respondent received the aforementioned instruction from SACE, which document was dated 20 March 2018. Despite this instruction, the Applicant continued to be paid his salary until June 2020, but did not return to work as an Educator. The Applicant’s services were ultimately terminated, and on persal the date of termination was backdated to 14 May 2018. The Respondent only implemented the termination when it became aware of an administrative error that had the Applicant receive a salary until June 2020.
20. The Applicant’s employment was terminated by operation of law in accordance with section 15(2) of the Employment of Educators Act (76 of 1998) as amended (the EEA) as a result of the finding from SACE. An employment relationship could not exist between the Applicant and the Respondent if SACE had removed the Applicant from the roll, and additionally, found that he was unfit to work with children, as SACE registration was a prerequisite for employment with the Respondent.
21. He confirmed that the Applicant was on paid suspension since September 2016 until the outcome of his hearing, being dismissal, on 18 March 2018, and had remained an employee of the Respondent until the termination was implemented. He could not speculate whether the Applicant was served with the outcome from the SACE hearing, and he did not believe it was the duty of the Respondent to convey the outcome to the Applicant of SACE’s behalf. The Applicant should have been aware that an outcome was pending from SACE as he had attended that disciplinary hearing, and it was unlikely that he was not served with the outcome. He denied the Applicant’s version that he had appealed the dismissal by the Respondent internally, and added that the Respondent had no records that such an appeal was ever lodged by the Applicant.
Evidence from the Applicant:
22. The Applicant, Itumeleng Sydney Motlhabane, testified that he had last rendered services as an Educator on the day that he was suspended, having been 2 September 2016, and that he had received a salary until June 2020. He denied any allegations of sexual misconduct against a Learner, which he also denied during his disciplinary hearing with the Respondent and the hearing if SACE. He was served with a letter of dismissal from the Respondent on 27 March 2018, and he had appealed the outcome through his union, SADTU. He had never received the outcome of the disciplinary hearing and did not have an opportunity to submit factors in mitigation. The outcome of the appeal has never been received by him.
23. He first became aware of the outcome and finding from the SACE hearing only during his preparation for the arbitration, during July 2021. Through his attorney he had addressed correspondence to SACE to obtain the hearing outcome, but to date nothing has been received. He confirmed that, to date, he has not yet appealed the outcome of the SACE hearing, as he did not have the money to do so. He believed he should be re-employed by the Respondent in a position where he did not have to work with children so he could earn a salary in order to afford the appeal of the SACE finding and determination. He agreed that, currently, the finding of SACE is uncontested.
24. He never received notification of the termination of his employment with the Respondent, resulting from the outcome of the SACE hearing. He confirmed that registration with SACE is a prerequisite for employment with the Respondent, and that the finding from the SACE hearing rendered him unemployable by the Respondent.
ANALYSIS OF EVIDENCE AND ARGUMENT
25. Parties were given an opportunity to make oral closing arguments. Same was considered, but will not be repeated herein.
26. Section 190 defines the date of dismissal as:
“(1) (a) the date on which the contract of employment terminated; or
(b) the date on which the employee left the service of the employer.”
27. If the definition above is considered, it cannot be held that the Applicant was dismissed as a result of the outcome of the disciplinary hearing with the Respondent and on the date on which the Applicant became aware of the finding, being 27 March 2018.
28. It was the Respondent’s case that the dismissal as a result of the disciplinary hearing with the Respondent, dated 18 March 2018, was not implemented for unknown reasons. The Applicant was unable to dispute this version. The Applicant’s salary further continued to be paid to him thereafter.
29. The finding from SACE, dated 20 March 2018, was further only implemented during 2020, but backdated to 14 May 2018. It was common cause that the Applicant continued to receive his salary until June 2020, but had not rendered any services as an Educator since 2 September 2016.
30. The Respondent relies on section 15(2) of the EEA in justification for the termination of the Applicant’s employment, and argued that the Applicant’s services were terminated by operation of law. Section 15(2) of the EEA states:
“If the name of an educator is struck of the register of educators kept by the South African Council for Educators, the educator shall, notwithstanding anything to the contrary contained in this Act, be deemed to have resigned with effect from the day following immediately after the date on which the educator’s name was so struck off. “
31. It is thus clear from section 15(2) of the EEA that the Applicant was deemed to have resigned on 21 March 2018, being the day after the Applicant was struck off the roll.
32. From the evidence it is clear that the Applicant was not dismissed for misconduct, but was deemed to have resigned in accordance with section 15(2) of the EEA.
33. The Applicant confirmed that he had not appeal the SACE outcome with SACE. The finding of SACE thus remains in effect, and the Applicant is not employable by the Respondent or any institution that works with children, in terms thereof. The Applicant’s approach to first challenge his dismissal with the Respondent, and thereafter challenge the SACE outcome is nonsensical. In order to have had any success with the matter before the ELRC, the SACE finding first needed to have been challenged.
AWARD
34. The Applicant, Itumeleng Sydney Matlhabane, was unable to establish that he was dismissed by the Respondent on allegations of misconduct.
35. The Applicant’s employment was terminated by operation of law, and the Applicant is deemed to have resigned.
36. The Applicant is not entitled to any relief.
Minette van der Merwe
ELRC Panelist