ELRC422-21/22LP

Commissioner: Grace Mafa-Chali
Case No.: ELRC422-21/22LP
Date of Award: 19 July 2022


In the ARBITRATION between:


PEU OBO MAPULA ROSINA MOFYA-LEGODI


(Employee / Applicant)


AND


DEPARTMENT OF EDUCATION-LIMPOPO PROVINCE


(Employer/Respondent)


THE DETAILS OF THE HEARING AND REPRESENTATION
1. The arbitration hearing was held on 09 February 2022, 10 February 2022, 11 February 2022, 16 May 2022, 17 May 2022, 18 May 2022 and finalized on 28 June 2022 on both virtual platform and at the Department of Education offices at Biccard Street in Polokwane Limpopo Province.
2. The Applicant was at all times in attendance and represented by PEU official, Mr Klaas Mohlatlole whereas the Respondent was represented by Mr Eric Nyathela, its Labour Relations Practitioner.
3. At the end of the arbitration hearing on 28 June 2022, parties requested to submit written closing arguments and were directed to submit by the latest 05 July 2022. However, Mr Mohlatlole requested and extension to submit his arguments by 08 June 2022 due to medical unfitness and the extension was granted. Both parties submitted the closing arguments by the due date.

ISSUES TO BE DECIDED
4. I must determine whether or not the Respondent committed an unfair labour practice against the Applicant in terms of Section 186 (2) of the Labour Relations Act 66 of 1995, as amended (the LRA) relating to a sanction of suspension of three (3) months without pay and final written warning.
5. If so, to determine the appropriate relief.

BACKGROUND TO THE DISPUTE
6. The Applicant was appointed as the Principal with effect from 01 July 2022 at Rev M.P Malatjie Primary School in Seshego Polokwane. She earned a basic salary of R61 991.75 per month.
7. It was common cause that she was charged with two (2) counts of misconduct; firstly for contravention of the provisions of Section 18(1) (a) of the Employment of Educators Act 76 of 1998, (EEA) as amended, in that on or around October 2019, she allowed the school to purchase a kombi in an amount of R469 975.40 without the approval of the Circuit Manager and the District, thereby failing to discharge her responsibilities as a Principal in terms of Section 1A(2)(h)(ii) of South African Schools Act 84 of 1996, (SASA) as amended, by failing to advise the School Governing Body (SGB) with management of the school funds. Secondly; in contravention of Section 18(1)(f) of SASA in that on or around 2014, she failed to offer teaching lessons to learners without a valid reason and therefore unjustifiably prejudiced the administration and discipline of the Department.
8. She was found guilty of the two charges following a duly convened disciplinary hearing and given a sanction of three (3) months without pay and a final written warning.
9. The period of suspension was from 24 August 2021. She appealed against the sanction and the appeal outcome confirmed the sanction from September 2021 to November 2021.
10. It was common cause that the Applicant was aware of the existence of the rules alleged to have been contravened but she denied the commission of the two offences and tendered evidence in that regard and also called two (2) witnesses and also subpoenaed three (3) witnesses who are Respondent’s managers. The Respondent called one (1) witness to testify.
11. The Applicant submitted that the sanction was inappropriate and prayed that it be set aside whereas the Respondent prayed that the sanction be confirmed.
12. The Applicant submitted a Bundle of documents which was marked Bundle “A” and the Respondent also submitted a Bundle of documents which I marked Bundle “B”.
13. Below is a brief summary of evidence of the parties, analysis of evidence and my findings.

SURVEY OF PARTIES’ EVIDENCE

Applicant’s Evidence
Mapula Rosina Mofya- Legodi testified under oath as follows:

14. She is employed as a Principal at Rev M.P Malatjie Primary School in Seshego with approximately 1 328 learners, 33 teachers, 7 support staff and 15 presidential support general assistants.
15. She was charged for failing to advise the SGB to buy a school combi without approval of the Circuit Manager and District. The school kombi was stolen when learners and teachers went on a school trip to Durban in August 2019. She went with them on that trip.
16. The combi was reported stolen and a case was opened with the police under case number 366181/2019 at Point Police Station and they made means to come back home. She also reported to the SGB that the kombi was stolen.
17. Upon their return from Durban, the SGB convened an urgent meeting and a letter was written to the Department on 26 August 2019 and reported the stolen kombi as it appears on Page 6 of Bundle A. At the special urgent meeting of the SGB held on 25 August 2019, the SGB decided that a new kombi must be bought and the process to source quotations from Toyota to commence. Minutes of the meeting are on Pages 8 to 10 of Bundle A.
18. The combi was used for the administration of the school. The tuckshop employees were paid from the tuckshop money and the kombi was used to run the tuckshop to enable it to generate income.
19. She advised the SGB to make an application to the Department and request for approval to by the new combi and the application process to the Circuit Manager started on 11 September 2019 as it appears on Page 7 of Bundle A. The application was submitted with supporting documents as on Page 32 of Bundle A.
20. No response was received from the Circuit Manager’s office on the application, the same as with other submissions. After some time, Mr Seima called her that the District was not able to approve the application as the police case was still under investigation and that the Circuit Manager did not recommend the request. The letter from the Circuit Manager, Ms Kganyago to the District Director dated 20 September 2019 is on Page 82 of Bundle B.
21. On October 2019, at the SGB meeting, the SGB discussed the pending application to buy the new kombi and took a resolution to buy a new kombi as there was no response from the Department. The minutes with the resolution are on Page 33 of Bundle A; in particular Paragraph 7.4 (update on the school combi).
22. The SGB took the decision despite her advice to wait for the Department’s approval as recorded in the minutes. She did not sign the minutes and the resolution.
23. She was informed by Mr Seima that the stolen kombi case was closed and that before the SGB met on 20 October 2019. Mr Seima also informed her that the Circuit Manager advised him that the school was mismanaging the school funds.
24. The application was therefore never approved but the combi was bought by the SGB as the insurance had already paid for the stolen kombi. The Circuit Manager never responded in writing to the request but she corresponded with them when things were not at the school.
25. The requisition on Page 41 of Bundle A to buy the combi was signed on 22 October 2019 by the Chairperson of the SGB, Mr Thindisa and she did not sign the requisition to approve the purchase. The Treasurer, Mr Tladi also signed the requisition.
26. Reference was made to Page 48 of Bundle A, Paragraph 8.5.12 regarding unforeseen expenditure that must go through the SGB and ratified by parents in a general meeting.
27. Page 34 of Bundle A shows under Paragraph 19, Administration of Donations that all procuments of above R100 000.00 should be approved by the District Senior Manager. There were no provisions for recommendation of anyone in these provisions. Report on suspected irregularities on management of school funds.
to Head of Department and SAPS is in Paragraph 20 (by Principal, SGB and anyone).
She did not report to the HOD as she was still hoping to get a response on the application but she co-signed the letter sent by Mr K.C Moshutla of Saviour Association of School Governing Bodies, addressed to the HOD on 25 October 2019. The letter reported that the SGB bought a kombi without the District Director’s approval with tuckshop insurance money which were R304 943.70, R179 910 and casual clothing money to make up the kombi price of R472 875.41.
28. She was not aware of allegations of school mismanagement fund. There was an investigation conducted by the Department and report issued on Page 26 of Bundle B dated 01 November 2019. She never received the final report of the investigations.
29. Regarding failing to offer teaching lessons on charge two, she explained that she started to become ill and has not been coping. In 2011, she took sick leaves and on 08 October 2010, Page 54 of Bundle A, she applied to the Circuit Manager, Mr J.M Mametja (deceased) to be transferred to office based educator. The letter appears on Page 54 of Bundle A.
30. The Neurologist’s letter, Dr Fourie on Pages 56 and 57 of Bundle A were also submitted with a recommendation for reduction of her responsibilities and to be placed somewhere where there was no noise. Dr Victor Matabane also recommended her referral to a psychiatrist and psychologist on Page 58 of Bundle A. The wellness department was also involved.
31. The recommendation of the Clinical Psychologist on Pages 59 and 60 of Bundle A was to allow her to have reduced workload, temporary leave of absence for 2 weeks and review of her conditions of work to rather work in the administrative role than as a Principal. The Department did not approve her request. She was on a sick leave and sick notes were delivered but she was subsequently not paid.
32. On 23 April 2012, there was a meeting called by Dr Karodia, as it appears on Page 61 of Bundle A with official managers appearing on the letter. In the meeting it was agreed that the Department should assist her in ways that were agreed upon in the meeting.
33. It was agreed that her teaching be reduced and she focus on management of the schools. It was recommended that she delegate to SMT and Deputy Principal to enable her to reduce her workload. The District Manager was in the meeting and she believed that the SGB and the Circuit Manager were informed about her condition and assistance to be provided by the Department.
34. She prayed that the sanction imposed on her for 3 months’ suspension with pay be withdrawn and that she be reimbursed the salary not paid, and that the final written warning be removed from her personnel records.
35. She did not have any problem with then Circuit Manager, the late Mr Mametja until Ms Kganyago was appointed as Circuit Manager. Her relationship with the new Circuit Manager is bad. She came to the school, called the SMT and insisted that she must teach. Even Mr Mothemane came to the school to address the issue, she advised them that there were a lot of schools where Principals were not teaching.
36. As a result of the bad relations with the Circuit Manager, she was not evaluated as a teacher. She lodged a grievance which was not resolved at the District level.
37. Reference was made to Page 7 of Bundle, her job description as a Principal and Item 3 with her core duties providing that her responsibilities are individual and varied depending on the approaches and needs of a particular school, looking at general administration, personnel, academic performance of the school, extra and co-curricular and teaching as per the workload of the post level and the needs of the school.
38. Extract of PAM was referred, Paragraph A.4.3 with percentages allocated to Principals in the policy which is between 10% and 92% depending on the post level which must be read with policy on SA standard of Pricipalship on Page 85 of Bundle A.
39. There is no rule that the Principal must teach. She stopped teaching due to her ill-health. Other Principals are not teaching and no action is taken against them.
40. She prayed that the sanction imposed on her for three (3) months suspension without pay and final written warning be set aside and she be reimbursed for the unpaid salaries.
Kubu Caiphus Mashutla testified under oath as follows:
41. He is the Chairperson of Saviour Association of Governing Bodies. He was approached by the SGB of Reverend Malatjie Primary School after they had difficulties with the Circuit Manager regarding the purchase of school kombi.
42. He then wrote a letter on Page 42 of Bundle A to the HOD and to Governance of the Department to inform them about the behaviour of the Circuit Manager and that the school applied to buy a new kombi which was neither approved nor declined but the SGB went on to buy the combi as there was no response from the Department.
43. He was aware that the application must be approved by the District office if its above R100 000.00. The SGB advised him of the process they followed to get the quotations, to ask for approval and the Principal did not approve their resolution but they proceeded to buy the combi without approval. The SGB told her that they could not wait anymore as there was no response to their application from the Department.
Madumetsa Samuel Thindisa testified under oath as follows:
44. He is the Chairperson of the SGB at Rev M.P Malatjie Primary School in Seshego since 2009. The school had a school kombi since 2010 and the one stolen was the fourth kombi that was purchased by the school. The first three kombis were purchased in the same way of raising funds by the school through approval of parents, make an application to the Department through the late Mr Mametja who was the Circuit Manager at that time.
45. The kombi is very useful to transport learners for sports and extra mural activities at the school and to transport teachers to workshops in order to save transport claims. Both the late Mr Mametja and the Acting Circuit Manager, Mr Tebele applauded the SGB for this initiative.
46. However, they started to experience problems after 2014 when the new Circuit Manager was appointed. The application to buy the new kombi was submitted to the Circuit Manager’s office on 11 September 2019 and Mr NC Tladi acknowledged receipt of the application.
47. No response was received from the Circuit Manager in writing. When he called to ask her about the application, she told him that they could not teach her on how to do her work.
48. She also told him the application was with the District Director. She spoke to the District Director, Ms Nkuzana who told her that the application could not be approved as the Circuit Manager was not happy with the manner the school was managing its financial matters. He could not understand that as all information on financial statements were submitted with the approval of the SGB and parents and the budget for the financial year.
49. He was aware that the Circuit Manager told them that she will respond by her own way she wants and she never responded in writing. She refused to put that in writing when then SGB met to discuss with her in 2014. She told them that if she was the Circuit Manager at the time the previous kombi was bought, she would not have approved the application. Therefore, they were not surprised when they bought the replacement kombi and told that the Circuit Manager did not support the application.
50. The SGB met, as reflected in the minutes of Page 55 of Bundle A and took a resolution to proceed to buy the kombi on 20 October 2019 despite the advice of the Principal to wait for the department’s approval. The Principal insisted that they purse the approval of the purchase irrespective of the SGB decision.
51. The Principal was not part of the SGB‘s decision and approval process. Therefore, the SGB was wrong to go against the advice of the Principal as there was pressure on the SGB because the kombi was a source of income and maintenance for the tuckshop. They need it to stock up for the tuckshop and to pay salaries for tuckshop workers.
52. They used the same procedure to request approval to buy the kombi like when they erected a concrete fence at the school in 2015 with a submission of all required documents including the resolution, minutes and budget.
53. The SGB approached the Association of SGB who wrote a letter to the HOD to assist with the approval for the purchase of the kombi as the application was delayed. No response was received by the SGB from the Department until they were made aware that the Principal was charged regarding the decision the SGB took.
Naphtally Matjitle Molope testified under oath as follows:
54. He is employed by the Department since May 2010 as CD: HR Management Development. He was providing HR Support Services.
55. He is aware of the letter on Page 61 of Bundle A, as he was part of the meeting on 19 April 2012. In 2011, the Department was under administration and the Administrator, Dr Karodia was seconded in the beginning of 2012.
56. Before the date of the meeting, Dr Karodia came to his office and introduced him to the matter of the Applicant and told him that he was concerned about her well-being and that he had issued a letter giving her leave when the two discussed. He showed him the letter and wanted his advice.
57. He told Dr Karodia that the letter was issued in error as leave provisions for educators are clear and no provision for leave can be initiated by the employer but the employee must apply for leave.
58. They then agreed that the letter must be corrected. On 19 April 2012, Dr Karodia invited him to a meeting in his office with the Applicant; but he could not remember who else was in that meeting, except Annett Janse van Rensburg and there was no secretary to take the minutes of the meeting.
59. Dr Karodia afforded the Applicant a chance to present her issue and she explained that she was not in good health for a while, besides leaves being granted to her and she requested an alternative placement. She stated her frustrations to Dr Karodia on how her case was being handled by the Circuit Manager, District Director and Wellness Unit.
60. After her explanation, Dr Karodia asked him how to assist her and he explained to them that the first issue was the challenges with the application for alternative placement in position as based educators (subject advisors) who are ranked on Senior Educator Specialist level or Deputy Chief Educational Specialist.
61. On the other hand, transfer would be a demotion or promotion as there was no direct matching with Persal. The auditors may have a problem with promotion because it would be irregular as they raised it with the HOD the previous year.
62. The conditions of the positions were not of the same as teachers work different hours of work in a day whereas in the office work is performed with more additional hours and the benefits also are different.
63. A secondment was also not possible. The only option was her to return back to work as a Principal. The Applicant indicated that she could not cope. He advised that due to ill health, she could apply for retrenchment, which was not an option she could choose as her husband was also on retirement and that could not be good for the family.
64. The last option was therefore for her to return back to work and be on the wellness programme with the Department assisting her with the work load to make sure that she still performs her work as indicated in the letter. Even though Dr Karodia recommended incapacity leave for her, the Department implemented leave without pay.
65. Reduction of her work was not part of the decision in that meeting but it was discussed that she must discuss her issues with her colleagues at the school as the PAM did not waive the conditions of service of Principals and it expected a certain percentage of teaching even in big primary schools to at least 10% and small school to up to 95%. Any form of reallocation of work could be decided through the Department Head but not the decision that the Principal must not teach. The outcome of the meeting was communicated to the District Director.
66. Regarding the recommendations on Page 17 of Bundle B for charging the Applicant, he observed that there was a strained relationship between the Applicant and the Circuit Manager and he proposed that the intervention was necessary to improve their relationship.
67. He could sense for the documents submitted of the Applicant’s disciplinary hearing minutes that there were protracted issues between the two and their relationship needed to be normalized.
Seja Kenneth Siema testified under oath as follows:
68. He was employed in the Department, Capricorn South District as a CS: Chief Education Specialist under Institutional Governance and Quality Assurance since 01 January 2011.
69. His responsibilities include capacity building of the SGB, admission of learners at schools, discipline of learners at schools, registration and deregistration of schools, approval of scholarships, adjudication of schools’ submissions, approval of school purchases for over R100 000.00 and more, quality checking and advise the person approving regarding compliance and lastly to file submissions with the District Director for approval.
70. Before application for the purchase of school kombi on Page 7 was received, the Principal called him and informed him about the stolen kombi and that as it was insured, the school wanted to replace it using the insurance money.
71. He then advised that there must be an application. The application was received but it did not have a letter from the Circuit. He spoke to the Circuit Manager about it and that it must go the District office with the convening letter. He then advised the Principal that the application will be sent back to the Circuit as the Circuit Manager indicated to him that she will not support the application. He also advised the Principal on what to do if the Circuit Manager did not approve the application.
72. The letter on Page 7 of Bundle A dated 20 September 2019, is the application and the letter on Page 82 is the response on the application from the Circuit Manager indicating issues she had with the application and reasons for not supporting it especially on financial mismanagement of the school funds.
73. He remembered that there was instability at the school and a task team was appointed to intervene as teachers were fighting with management and parents supported the Principal; but he could not confirm if the team also dealt with finances of the school at it appears on the report on Pages 27- 30 of Bundle B.
74. Under normal circumstances when there are allegations of mismanagement of finances at the school, he would be assigned to constitute a team that is independent and impartial to investigate and report directly to the District Director. In this instance, he was not assigned and it is possible that Mr Mametja and Mr Mothemane did that.
75. When the task team was appointed, the current Circuit Manager was not there. The application of the school indicated in Paragraph 7 that the school had R179 910.00 from the insurance paid for the stolen kombi, and how an amount of R472 00.00 shows on bank statement that the school had money in the bank in August 2019.
76. With a document showing tuckshop money to be used to supplement the amount, minutes of the SGB and parents meeting, the reasons were reasonable. However, as he did not have much knowledge on how insurance work with stolen vehicles, he could not comment on the Circuit Manager’s comments regarding her feeling that it was too early to buy another kombi.
77. He relied on the Circuit Manager’s recommendations and if found that the reasons are implausible, they will not approve. He believed reasons given by the Circuit Manager as genuine, since if not, they would have proceeded to approve the submission. He agreed it would be difficult to deduce feelings from the letter.
78. He trains the SGB as part of his responsibilities on management of the school finances of the school and Rev Malatjie School SGB was also trained. The Principal would regularly talk to him several times telephonically to get advice on many matters affecting the school.
79. Similarly, with the kombi, although he could not remember well, possibly he was involved with the purchase of fence. He was part of the team that initiated the investigations that led to the employee’s charges and was never involved in the process for investigation of the school finances as it was the Senior Manager that was involved.
80. But after 2017 since the new demarcation of Capricorn South and North, he took over Capricorn South and has taken those responsibilities of assembling task teams, and once investigations are finalized, findings are given to the District Director for action. Labour relations will then deal with the charges.
81. The previous District Director deliberately did not involve him but the current District Director involves him to assemble the task teams and he gets involved throughout the processes.
Tinyiko Josephine Nkuzana testified under oath as follows:
82. She is the District Director, Capricorn South for the Department of Education, Limpopo and her responsibilities are huge including monitoring of schools in the district, dealing with examination management, school finances, planning and learning support, SGB matters, stakeholders and institutional governance matters.
83. She is also responsible for managing the curriculum, corporate services, exam assessments, special projects and integrated planning.
84. When she handles a complaint about an educator’s conduct, she will get a submission from the school that will come through the Circuit Manager to her office. Then she will send the submission to the District Director in Corporate services. The Assistant Director, Corporate Services will do the investigations and submit a report which will be taken to the HOD for submission.
85. The Circuit is not empowered to make the investigations without the knowledge of the District Director or ask the District Director to sanction its investigation.
86. The Circuit Manager as the supervisor of the Principal, if it involves the school educators will be asked to give a preliminary report of what is happening and based on that Principal’s preliminary report, a decision will be made to do investigations.
87. The Circuit Manager as the supervisor of the Principal, if it involves the school
Educators will be asked to give a report of what is happening based on the Principal’s preliminary report, a decision will be made to do investigations.
88. Regarding the procurement of items by the SGB for the value of more than R100 000.00, the school submit an application to the Circuit. The Circuit will check if the submission meets all the requirements and amounts then forward it to the District Director at the office of Manager Compliance, who will communicate with the Circuit Manager about what is outstanding to get the submission finalized.
89. She was aware of the application by Rev Malatjie Primary School for purchase of a kombi for the school. Pages 7 to 32 of Bundle A were a package of the application and its supporting documents.
90. The application came to her and she referred it back to Institutional Governance Manager as it was not approved. It lacked the covering letter from the Circuit Manager and outstanding documents which were not delivered to the District.
91. In considering a submission for approval, she looks at the attachments to the submission if they meet the requirements and verify if amount is over R100 000.00 and she does that independently.
92. She remembered that according to the letter written by the Circuit Manager to the District Director, she indicated that the money to be used to purchase the combi was not included in the school budget.
93. She then referred the application to Mr Seima, Manager specializing in dealing with submissions to check and satisfy himself on the application and to ensure that he liaise with the Circuit Manager for submission of the outstanding documents.
94. The reason why there was no approval on the application was that there was no information on the budget to be used to purchase the kombi as the insurance paid R179 000.00 but there was no evidence of the surplus money. Mr Seima is not the one who approves. The Circuit Manager indicated that the police were still searching for the stolen kombi hence she said it was too early.
95. All that was required was information of budget as the school is a no-fees school, located in a poor area and parents are unable to pay school fees like in the fee paying schools. As the information outstanding did not come, approval was not granted.
96. The detailed information on Income and Expenditure for items listed on Page 25 of Bundle A on casuals and tuckshop money were required and how much was made and where the money came from.
97. She got never got communication with a complaint that the school was not submitting financial records on monthly basis to the Department at that time but she was aware that in the past there was a complaint before she joined the district.
98. She got a brief from her predecessor not from the Circuit Manager on issues at the school without much details. In 2015, she was still in Vhembe and she only joined the district in November 2018.
99. The letter of 01 November 2019 was received by her office and she referred it to Mr Seima who referred it to Mr Mojapelo with the terms of reference for investigation. She was aware that the Applicant was suspended after the investigation by Mr Mojapelo. After an investigation, she would receive a report from labour or governance but she could not remember if she got one in this instance.
100. With reference to Page 33 of Bundle B, she confirmed signing the recommendations on Page 35. On the matter of not teaching by the Principal, there was a resolution and also with reference to Page 68 of Bundle B on the entry in the log book of the school, the previous Circuit Manager told her that she could not conclude the IQMS of Rev Malatjie because the Principal did not allocate herself a class since she was not well and requested to be office based.
101. The Department was no longer transferring educators to office based. Mr Mametja’s recommendations could not be considered due to policy considerations. The letter on Page 61 of Bundle A did not indicate new medical condition of the Principal.
102. The Circuit Manager told her that she had several meetings with the Applicant to discuss her teaching and she advised her that she must allocate herself classes to teach and when one day she was at the circuit for monitoring exams around 2019 or 2020, she met with the Principal and she told her about her non-evaluation on the IQMS by the Circuit Manager.
103. She promised the Principal that she would check with the Circuit Manager and indeed she did. The Circuit Manager told her that the Principal was not evaluated because PAM requires her to teach a certain percentage as she is a school based teacher.
104. Her understanding of Page 82 of Bundle A read together with Item 34 of Page 83 record the duties and responsibilities of the Principal and teaching is one of them. Item 43.3 of PAM, requires between 10 to 90% of teaching and because Rev Malatjie is a big school, the Principal may do 10% of teaching and do other administrative roles. The PAM policy gives a guideline to determine teaching allocations.
The Applicant closed her case.

The Respondent’s Evidence
Tshoshane Gladys Kganyago testified under oath as follows:
105. She is the Circuit Manager of Seshego and is responsible amongst others monitoring and implementation of policies, governance and management of public schools and teaching, learning and support of schools.
106. The allegations that she did not process the application for purchase of school kombi were not true as after receipt of the letter, he told the school that she sympathized with them and advised them on what to do on the application. The letter was not addressed to the District Director but to her but she nevertheless took it to the District Director’s office as it fell within the District Director’s competency.
107. The school did not budget for the kombi and the money received from the insurance was far less that the money for the purchase. The excess amount could not be found on the documents submitted.
108. She addressed the letter on Page 20 of Bundle B, dated 01 November 2019 to the District Director because when she advised the school, they did not take her advice as the money to purchase was not in the school budget.
109. In July 2015, the Applicant wrote a letter to the Department complaining about teachers not teaching at the school and neglecting their duties. When they investigated, they went to the school and discovered that teachers were complaining about fundraising at the school without accountability, workload and non-teaching by the Principal.
110. In 2014 when she joined the Circuit, she wrote a letter to the District office to do further investigations on school finances. The investigation findings were that the school was unable to account for their finances and the matter was referred to Lebowakgomo Capricorn District. The issue was still pending.
111. Page 4o of Bundle B is the minuets of the SGB and Finance Committee meeting at the school on 20 October 2019, in particular Page 43, Item 7.4. Her office was never informed of the SGB decision to purchase the kombi and the Principal did not do her job in terms of SASSA Clause 16 (1) (k) to report this.
112. The Principal and the SGB were trained on their roles and responsibilities every year by the governing unit. She expected the Principal to inform her office that the SGB was violating the policies but she failed to do that.
113. The allegations in the letter from the Saviour Association of SGB were not correct as she was never in the meeting with the SGB talking about the kombi purchase and she met twice with them. When they firstly requested a permission to undergo a trip to Gauteng (Sandton or Centurion) to attend the workshop on the 4th industrial revolution and she advised the SGB that the trip and the workshop were not budgeted for and the number of teachers to attend were many for a 2 days’ attendance.
114. She then advised them to split the number of attendees into half. The Principal in her concluding remarks said “this woman as long as she is there, the school will not progress”. When she asked Mr Thoka to ask the Principal to withdraw the remarks, she refused.
115. The contents of the letter from the Saviour Association of SGB indicating that the Principal advised the SGB and insisted to pursue the approval with her office were not correct as the Principal did not inform her about the purchase of the kombi by the school without the approval by the District Director. She observed that the Principal signed with the Chairperson of the Association and this was a contradiction if she did not support the SGB decision.
116. In terms of the lines of communication, she as the supervisor of the school will receive a report which will then be directed to the District Director, through to the office of the HOD. The school was undermining the Circuit office by directly going to the HOD through the Association. She found the Principal’s statement and what she said in the letter contradictory as the Principal cannot say she is not a party to the decision but at the same time signs on the association’s letter supporting the purchase of the kombi. The letter should have been signed by Moshutla only as the Chairperson not the Principal who represents the HOD.
117. It was an incorrect allegation that she had a negative attitude towards the school. With regard to receiving of submissions, there was a standard procedure in her office where all submissions are acknowledged receipts in the submission book and if there is a duplicate correspondence, the recipient can ask the person receiving the correspondence to sign and also acknowledge receipt on such correspondence. That was the practice she found at Circuit and she continued with it and it is working for them.
118. On the issue of teaching by the Principal, the policy provides that in all public and ordinary schools for post level educators including the Principal, all of them must teach in accordance with their workload level and it differs from HOD up to the Principal. All Principals must teach as indicated in PAM according to the percentages between 10% and 99% depending on the Post Level.
119. The emphasis of the policy position is on teaching and there is no one that can change the policy including Dr Karodia. However, there may be ways in which support can be given if there are challenges with teaching.
The Respondent closed its case.

ANALYSIS OF PARTIES’ EVIDENCE AND ARGUMENTS

120. This matter was referred for arbitration in terms of Section 186(2)(b) of the LRA. The Applicant alleged that the Respondent committed an unfair labour practice relating to the sanction of three (3) months’ suspension without pay and final written warning.
121. The Applicant bears the onus to prove on a balance of probabilities that the Respondent committed unfair labour practice towards her and that the employer’s conduct was unfair.
122. It is common cause that the Applicant was charged of two counts of misconduct in terms of Section 18(1) of the EEA for allowing the school to purchase the combi to the value of R 469 975,40 without the approval of the Circuit Manager and the District and for failing to advice the SGB with management of school funds , thereby failing to discharge her responsibilities as a Principal in terms of Section 1A(2)(h)(ii) of SASA and contravention of Section 18(1)(f) of SASA for failing to offer teaching to learners without a valid reason.
123. The Applicant was found guilty of both charges at the disciplinary hearing held on 25 March 2021 and was given a sanction of three (3) months suspension without pay. She lodged an appeal and the sanction was confirmed by appeal outcome.
124. The Applicant led her own oral testimony and also presented documentary evidence four (4) witnesses including 3 subpoenaed witnesses from the Respondent, whilst the Respondent led oral evidence of one (1) witness, and also presented documentary evidence.
125. I will start with the first charge. It was common cause that the SGB of Rev M P Malatjie Primary School purchased a school kombi to the value of R 469 975, 40 on 22 October 2019 without the approval of the District Manager. It is evident that although the charge makes mention of the approval of the Circuit Manager, only the District Manager is empowered to approve a purchase of more than R100 000,00 in terms of the Prescript for the Management of Funds.
126. I will not go into length on the application for the kombi process that was followed as the witnesses of both parties corroborated each other in terms of outlining the process and documentation required for the approval and furthermore both parties agreed that the District Manager never approved the application but the SGB nevertheless proceeded and made the purchase.
127. The crux of the matter is whether or not the Principal allowed the SGB to make the purchase and whether or not she failed to discharge her responsibilities by failing to advise the SGB on the management of the school funds, as alleged by the Respondent.
128. The Applicant led oral evidence that she was present in the meeting when the SGB took the resolution to purchase the kombi as the SGB believed that there was a delay in the approval process. According to her testimony, she advised the SGB that they must wait for the approval of the application and despite her advice the SGB continued with its resolution and requisition approval of the purchase which she did not approve nor sign. Instead the SGB Chairperson and Treasurer signed the requisition for the purchase.
129. In support of her version the Applicant submitted the minutes of the SGB that that was held on 20 October 2019, in particular Paragraph 7.4 titled Update on school kombi which recorded the resolution for the SGB for the purchase of the kombi which states as follows: “The Principal advised the SGB to wait for the approval from the District but the SGB took a resolution to buy a new kombi on 21 October 2019 and signed it. The Principal insisted that she will pursue the approval of that expenditure irrespective of the SGB decision”. The resolution that was submitted in evidence was signed by the SGB members and SGB and Finance Committee.
130. The evidence of the Applicant was corroborated in all respects by Mr Thindisa, the Chairperson of the SG, who is also the signatory of the minutes and the resolution that during the meeting the Principal advised the SGB but the SGB refused to take her advice.
131. I found the evidence of Mr Seima and Ms Nkuzana confirming the common cause issue that the application for the purchase of the kombi was received by the Circuit Manager and processed up to the level of the District Director but not approved, and nevertheless the SGB continued to make the purchase without the required approval as there were still outstanding documents on the budget of the school to be utilized to buy the kombi.
132. The Applicant’s evidence and arguments went in length about the process of making follow-ups on the application and her telephonic engagements with Mr Seima regarding the progress of the application which Mr Seima could not dispute; as well as challenging the reasons why the Circuit Manager did not support the application, including her sour relationship with the District Manager. There were also issues raised that the Circuit Manager alleged that the school was mismanaging the school funds.
133. I have also taken into cognizance that the above two mentioned witnesses merely gave their views regarding whether or not the Applicant discharged her duties to advise the SGB about the management of the school funds and whether she did allow the SGB to purchase the kombi; as both of them were not present in the SGB meeting and could not challenge the authenticity of the minutes and the resolution that recorded that the Principal advised the SGB to wait for the approval first before purchasing the kombi, which minutes were confirmed by the Applicant and the SGB Chairperson Mr Thindisa.
134. The Applicant also called Adv Moshutla, the Chairperson of Saviour Association of School Governing Bodies who testified about the communication by the Association dated 25 October 2019 sent to the HOD and Governance Unit to report the failure by the District Director to approve the purchase of the kombi, then non-recommendation of the application by the Circuit Manager and the decision of the SGB to buy the kombi irrespective of the Principal’s advice. Obviously, the request to regularize the approval of the purchase of the kombi was after the fact because the combi was already bought when the letter was written.
135. In terms of the Prescripts for the Management of Funds, presented in evidence, in particular Clause 8.5.3 “the School Principal or his/her delegate and the SGB Chairperson shall authorize such payments before any payment is made”.
136. Clause 8.5.12 provides that “Expenditure unforeseen in the annual budget should first go through the School Governing Body and ratified by the parents general meeting before it is effected.”
137. The Respondent led the evidence of the Circuit Manager, Ms Kganyago which as indicated above confirmed in most respects the common cause issues highlighted above and she did not dispute that according to the minutes of the SGB, the Principal did advice the SGB and that the SGB did not take her advice as it continued to do the purchase without the requisite approval. She tried to challenge the attendance register of SGB members as against the attendance register that also has members of the Finance Committee.
138. I however observed that although those members that signed as Finance Committee Members did not sign on the SGB attendance register, the resolution was recorded to have been taken by all of them as the records appear.
139. Ms Kganyago emphasized that the Principal was supposed to have reported the matter to her or the HOD. Similarly, to the evidence of Mr Seima and Ms Nkuzana as indicated above, the evidence of Ms Kganyago could not to any extent challenge the contents of the minutes of the SGB as stated above.
140. The role of the Saviour Association was challenged by the Respondent as having no jurisdiction over this departmental governance matter but only as a representative of the SGB on its own matters of their interest and the capacity of the Applicant to co-sign the letter with the Applicant was also questioned. I found the issue of the involvement of the Saviour Association peripheral matters which do not assist in the determination of the issues in dispute as it was common cause that the kombi was bought without the necessary approval.
141. Clause 20 of the Prescripts provides that “the SGB, Principal or any other person must immediately report all suspended irregularity with regard to the management of school funds immediately to the Head of Department and the South African Police Services”.
142. It is not in dispute according to the evidence led that at no stage did the Applicant report this irregular expenditure by the SGB to the HOD or SAPS as required by the Prescript. In actual fact she conceded to that in her evidence. However, upon discovery of the irregular expenditure by the SGB, as reported by the Saviour Association, the Respondent ought to have taken appropriate action against the SGB because it is clear that it failed to comply with its roles and responsibilities but instead shifted the whole blame on the Applicant without valid reason to do so.
143. I have also noted that most of the evidence of the Respondent revolved around the Applicant’s responsibility to take reasonable steps to prevent financial administration or mismanagement by the SGB and failure to report the SGB financial mismanagement to the HOD in terms of the Section 16 of the Basic Education Laws Amendment Act No 15 of 2001 (amendment to Section 16A of SASA, 84 of 1996). These two were certainly not the charges against the Applicant. I tend to agree with the Applicant’s argument that the Applicant was therefore incorrectly charged. This legislation has relevant provisions for those contraventions.
144. Based on the oral evidence presented to me above and the documentary evidence, I am convinced that the Applicant has been able to show that she has not failed to advice the SGB about the required approval of the District Director to purchase the kombi and there is no evidence that she also allowed the SGB to do the purchase as the SGB clearly did not take her advice.
145. The Applicant was furthermore able to show that she was not part of the decision by not signing the requisition for the purchase despite the fact that she was supposed to be the signatory. These facts are consistent with a conduct of the person that does not associate herself with the decision taken by the SGB.
146. It is my considered view that the fact that she co-signed the letter of the Saviour Association cannot be regarded as her approval of the unauthorized transaction but rather as support of the request to normalize the approval since it was recorded in the minutes that she would pursue the approval despite the resolution of the SGB.
147. I consequently find that the Applicant was incorrectly found guilty of Charge 1 and I will set aside the sanction for this charge. My decision is supported by the judgement in SAPO v Jansen Van Vuuren NO & Others (2008) 29 ILJ 2793 (LC) , in which the Court held that Commissioners may set aside suspensions imposed at a disciplinary penalty if they find that on the merits, the employee was not guilty of the conduct for which he or she was suspended.
148. I will now deal with Charge 2. It was alleged that the Applicant failed to offer teaching lessons to learners without a valid reason. Although the Applicant at the commencement of the arbitration process denied the allegation, it transpired when she led evidence that she made a concession that she did not teach the lessons because of her ill-health which the Respondent was aware and did not dispute. The Applicant testified that she was given permission not to teach.
149. The Applicant presented documentary evidence of the recommendation that was made by the previous Circuit Manager, the late Mr Mametja dated 08 February 2010 for her request to be translated from the school to office based educator due to ill-health and various specialist medical reports of neurologist, psychiatrist and clinical psychologist were also submitted in evidence. It is evident from Mr Molope’s evidence that several options were discussed during the meeting to try and assist the Applicant and relieve her of the major responsibilities at the school.
150. It is unfortunate that the letter did not specify the assistance and the manner in which such assistance was to be given. The Applicant requested the Respondent to disclose the minutes of this meeting and attendance register but the Respondent indicated that no minutes of this meeting could be located due to the time lapse. I have also not been furnished with evidence of any other written approval of the request for translation by the Respondent and it is common cause that the Applicant was never translated.
151. Mr Molope in his evidence confirmed his attendance to the above meeting and denied that there was approval given to the Applicant not to teach but rather as the letter indicates that some assistance be given to her at the school to relieve her of the workload after having afforded the Applicant an opportunity to explain her issues and her frustrations on how the issues were handled by the Circuit Manager and District Director. Alternative placement was not a possible option according to the policies and avoidance of audit queries.
152. Mr Molope also testified that sometime prior to the meeting Dr Karodia had already discussed issue of the Applicant with him and that he was concerned about her well-being and that he has issued the letter to give her leave. He advised Dr Karodia that the letter was issued erroneously as leave of educators was regulated by leave policy for educators and the employer cannot initiate any leave unless there is a request by the employee for leave and it was agreed to have the letter corrected. This evidence was also uncontested by the Applicant.
153. According to Mr Molope the conclusion was that the Applicant would return to the school and discuss her issues with the colleagues at the school in order to see how they could assist her as PAM expected her to teach at least 10% as she is the Principal at the big school.
154. Mr Molope could not with certainty confirm if he received the wellness report dealing with the Applicant as the details and contents of those reports are confidential but it was not disputed that the Wellness Unit was also involved in the medical conditions issues of the Applicant. He testified also about the observations he made on the recommendations to charge the Applicant that there was the strained relationship with the Circuit Manger, which he recommended needed an intervention to improve it.
155. Ms Nkuzana seemed not have been much involved about the issue of teaching by the Applicant although she testified that she was made aware by the Circuit Manager that she could not do IQMS at the school as the Principal did not allocate herself classes to teach, and the process of her request for translation to office based. Furthermore, that the Circuit Manager told her that she held several meetings with the Applicant on the matter and advised her to allocate teaching classes for herself, which was also confirmed by the Applicant when she met her at the circuit one day when she went to do monitoring exams.
156. Ms Nkuzana’s testimony regarding the teaching responsibilities of the Principal in terms of the percentage of teaching requirements of PAM as testified by Mr Molope were again emphasized that the Principal at Rev M P Malatjie is expected to teach at least 10% as it’s a big school.
157. I must say most of the evidence of Mr Molope and Ms Nkuzana’s evidence consistent and were not contested by the Applicant except that she insisted that the agreement at the meeting with Dr Karodia was that she must not teach and further that the PAM is a guideline and the Principal at the big school may not teach even the 10% as provided in the policy specially as the size of her school with many more administrative and management functions.
158. It was also argued by the Applicant that there are many more Principals in the Department that are not teaching and the Respondent has not taken any action against them. I have not considered this evidence as it related to inconsistency and the Applicant indicated later during the proceedings that consistency of the application of the rule was withdrawn.
159. On the other hand, the Respondent led evidence by Ms Kganyago to the effect that the Principal did not teach as she had advised her and as a result she could not do her IQMS, whereas PAM requires that all Principals must teach according to the percentage between 10% and 99% depending on the post level; and further that these are policy provisions which could not be changed even by Dr Karodia and there were other ways in which support could be given if there are teaching challenges.
160. Taking into account that the Applicant did not dispute that she failed to teach because she had a valid reason due to ill-health issues, and having failed to prove that there was permission granted to her by the Respondent not to teach, I have no reason not the accept the Respondent’s evidence as the Applicant has not been able to prove that due to her ill-health she was given permission by the Respondent not to teach in deviation of the PAM provisions.
161. Even if the Applicant has argued that in terms of her job description in Government Gazette 39827 of 18 March 2016, it did not require her to teach but manage teaching as it’s only a guideline and not a must to apply, it is my considered view that the job description must be read together with PAM provisions, as its policy regulations which binds both parties and although there can be deviations they must be justified and follow some internal processes in terms of governance regulations and procedures.
162. However, as correctly argued by the Applicant, the Respondent has not tendered any evidence of how the administration, efficiency and discipline of the Respondent was unjustifiably prejudiced by the Applicant’s actions.
163. In making the above findings, I took cognizance of the fact that was raised by the Applicant regarding the alleged bad relationship with the Circuit Manager, which was confirmed by Mr Molope’s observations and the SGB.
164. The SGB Chairperson also alleged similar bad attitude of the Circuit Manager and obstructing the school development whilst her predecessor applauded them and the school for its developments.
165. Although the Circuit Manager disputed this evidence, I found it probable especially looking at the notes she made on 20 November 2015, on one of her visits to the school in which she commented about her relationship with the Principal, as well as the communication of the SGB to the MEC of Education dated 18 December 2018.
166. Although the Circuit Manager’s notes show that all parties agreed to open a new chapter in 2016, it was only her signature and the Principal did not sign to confirm the agreement and therefore the issues were still not resolved even in 2018. It is therefore consequently my finding that the Applicant was correctly found guilty of failing to carry out her duty to teach.
167. It is however clear to me that the Respondent has not properly dealt with this matter after being aware that the Applicant was not teaching as required, especially when it came out during the IQMS process.
168. This is so because the Applicant’s issues of ill-health already started in 2010 according to Mr Mametja’s recommendation for her translation on specialists’ recommendation. Then the IQMS issues were raised by the new Circuit Manager, Ms Kganyago in her letter dated 24 February 2020. The Respondent had not tendered any evidence that despite this communication alerting her of the breach of her contractual obligations, an instruction was given to her which she failed to comply with.
169. According to the school logbook note presented in evidence on 18 November 2019, the Circuit Manager made a note that she visited the school to conduct the Principal’s IQMS PS1-PS4 and the Principal did not have classes she was teaching and the evaluation was deferred to 19 November 2019 after reference has been done.
170. further noted the documentary evidence by the Applicant of contents of correspondence between the Circuit Manager dated 24 February 2020 and the Applicant’s response on 27 February 2019 on this IQMS issue and their different interpretations on how it should be conducted. According to the Circuit Manager she viewed the Applicant’s conduct as a breach of her contract of employment (job description).
171. On another logbook note presented in evidence, it showed the Circuit Manager’s notes that she visited the school on 06 February 2020 to monitor and support learning and found that the school has the time table, allocation of duties to educators, assessment plans and policies in place. Teachers are engaged in teaching and learning.
172. Subsequent to that the Applicant wrote a letter to the Circuit Manager on 18 February 2020 that she has not yet come to conduct her 2019 IQMS. The Applicant lodged a grievance on 29 June 2020 which was not resolved. It is not clear how the performance management dispute about the non-teaching finally landed as a disciplinary action against the Applicant.
173. It was only on 01 October 2020 when the Applicant was charged for the issues of SGB unauthorized purchase of the school combi that the charge for failing to teach in or around 2014 to date was also brought in.
174. It’s mindboggling for me why the Respondent did not deal with this charge since 2014 if the Applicant for six (6) years breached her contract of employment. There is probability that the trumped delayed charge was brought in as a result of the strained relationship between the Applicant and her supervisor, the Circuit Manager.
175. Therefore, regarding the appropriateness of the sanction on this charge, it is my considered view that if the Respondent viewed this conduct as a serious breach of the Applicant’s conduct, the previous Circuit Managers should have timeously taken disciplinary action. It is very improper and procedurally unfair for the Respondent to waive the disciplinary action for so many years and later initiate disciplinary action when a new charge is laid.
176. The Respondent has not called a witness to address what the Respondent’s disciplinary code provides for commission of this offence and more particularly the Chairperson to prove the appropriateness of the 3 months’ suspension and final written warning he imposed upon the Applicant. The Courts have endorsed the concept of corrective and progressive discipline. This approach regards the purpose of discipline as a means for employers to know and understand what standards are required of them.
177. Efforts should be made to correct employees’ behaviour through a system of graduated disciplinary measures such as counselling and warning. In this particular instance it was more onerous for the employer to follow that process as it did not dispute that the Applicant had issues of ill-health which were even dealt with by the highest office of the most senior, the previous Administrator Dr Karodia. Informal processes and corrections would have been the best and most effective ways for the Respondent to deal with violations of work discipline, and depending on their seriousness and repetitions of course written and final written warnings would have been then warranted.
178. I find that irrespective of my finding that the Applicant failed to prove have permission not to teach from the Respondent, the Respondent was very insensitive in the manner it handled her disciplinary action on this particular charge.
179. Unnecessary delay in bringing charges can result in indications that the misconduct was not serious enough to merit discipline, procedural timeframes have been overstepped, and that discipline was not truly instituted due to the alleged misconduct but rather due to the existence of a hidden agenda and the actual charge was a mere pretext. These principles that in cases of disciplinary action the institution of an investigation and proffering charges against an employee must not be delayed unnecessarily have been endorsed in the judgements of Eyk v Minister of Correctional Services (2005,6 BLLR 639) and Duiker Mining Ltd v CCMA & Others (2003, 6 BLLR 550).
180. It is consequently my finding that the Respondent committed unfair labour practice towards the Applicant and the sanction imposed of the 3 months’ suspension and final written warning was inappropriate and is hereby set aside. I will also order the Applicant the relief prayed, for reimbursement of her three (3) months unpaid remuneration in the amount of R185 975, 25 calculated at her monthly salary rate of R61 991, 75. The Respondent is ordered to expunge the final written warning from the Applicant’s records even if it has already expired at the time the award is issued.

AWARD

181. I find that the Respondent committed an unfair labour practice as contemplated by Section 186(2)(b) of the LRA.
182. The Respondent, the Department of Education-Limpopo is ordered to pay the Applicant unpaid remuneration in the amount of R185 975, 25 .00 by no later than 30 August 2022.
183. The Respondent is furthermore ordered to expunge the Final Written Warning issued to the Applicant by not later than 30 August 2022.


ELRC PANELLIST:
GRACE MAFA-CHALI