ELRC420-21/22 GP

Case Number: ELRC420-21/22 GP
Panelist : Mathabo Makwela
Date of Award: 22 August 2022

In the ARBITRATION between

Edmond Fana Digashu
(Employee)

And

Department of Education: GAUTENG
(Employer)

DETAILS OF PARTIES AND REPRESENTATION

1. This is the award in the arbitration between Edmond Fana Digashu, the applicant, and the Department of Education: Gauteng, the respondent.

2. The arbitration was under the auspices of the Education Labour Relation Council in terms of Section 191 (5) (9) of the Labour Relations Act 66 of 1995 (as amended) (the LRA).

3. The arbitration hearing took place on 23 May; 10 June and 15 July 2022

4. The applicant was in attendance and was represented by Advocate Mphahlele Mogole instructed by Fatuwane Moila Attorneys Inc, while the respondent was represented by Mr Peter Nkosi, its industrial relations practitioner.

5. The respondent submitted a bundle of documents which was marked as Bundle R and the applicant ‘s bundle of documents as submitted were marked as Bundles A and B and used in these proceedings. The proceedings were digitally recorded and handwritten notes were also taken. Interpretation services for the witnesses was provided by Mpotseng Moloi.

BACKGROUND TO THE DISPUTE


6. The parties are Edmond Fana Digashu (the applicant) and the Department of Education- Gauteng, the respondent.

7. The applicant was employed by the respondent as a school principal on 01 January 2017 having commenced his employment on 01 January 2006. He earned R62 228.44 per month at the time of termination of his services. School funds went missing in 2018 and 2019. As a result, the applicant was subjected to a disciplinary enquiry. The following allegations were proffered against the applicant.

(i) failure to prevent maladministration of funds and
(ii) signing fourteen (14) cheques made out to the SGB chairperson.

8. The applicant was dismissed on 27 July 2021. He referred an alleged unfair dismissal dispute to the Council. He that his dismissal was unfair in that the embezzlement was done in a manner that nobody would have prevented it and that it was a normal practice for the school to issue cheques as he did and that it was never challenged by anyone.

9. It was common cause that Secular 13 of 2000 was in effect at the time of the commission of the alleged transgressions and that the applicant breached Section 16A (2)(i) of the SASA Act, 84 of 1996.

10. The applicant sought relief in the form of retrospective reinstatement.

PRELIMINARY ISSUES

11. There were no preliminary issues raised by either of the parties.

ISSUE TO BE DECIDED


12. The issue to be decided is whether the applicant’s dismissal was substantively fair.

SURVEY OF PARTIES EVIDENCE AND ARGUMENTS

The Respondent’s Case

Seth Thabo Senooane (Seth) ‘s evidence under oath:

13. Seth testified that he is the chairperson of the SGB at the School: Entsonalanga Primary School and has been in that position since 2019. Prior thereto, he was the SGB Deputy Chairperson. He was the SGB chairperson when the applicant was charged with the alleged transgressions of missing school funds.

14. There were issues regarding school funds in 2019 and the applicant had called the SGB Executive. He showed them copies of cheques, which some being blank cheques, bearing his signature. He explained that he and the SGB former chairperson, Mello, had signed the cheques in question. He referred them to the finance auditor, Mr Mahangwana, who showed them the signed cheques and told them that the money was not adding up on the cheques. The SGB Executive called Mello who conceded that he knew about those cheques and that they were given to him by the applicant. He further stated that he was the one who cashed the cheques at Festival Mall. He wrote a confirmatory letter on what he had told them about the cheques as per page 12 of bundle A (“A). He pleaded that the matter should not be reported to the police and that he would repay it at R500 instalment per month.


15. He further testified that they wrote a letter to the IDSO, i.e., the School Inspector, Mr Mphahane, about the situation. Mphahane called the Finance Officer, Ms Doreen Kgopane, who Mello said that he was sharing the cashed cheques money with. Doreen denied any involvement in what Mello had stated regarding the sharing of the money. A criminal case was opened against Mello. However, he was released and the case docket has since disappeared. Mello has never paid the money as per his undertaking. Doreen was dismissed as it can be seen from page 10 of bundle R (“R”).

Under cross-examination, Seth testified that:

16. He was not a member of the SGB when the applicant was appointed to the position of principal in 2017, but the previous SGB Treasurer, Dora Matsokola, was. They no longer use cheques as a method of payment. Irrespective of only two signatories signing a cheques, the bank would not pay without the confirmation of the principal as it is a policy between the school and the bank.

17. The applicant showed the SGB signed blank cheques and had admitted in front of parents and the district director that he was fooled to sign blank cheques. Dzukula and Mello signed the cheques on A13 and there were cheques signed by the applicant as well. It was a mistake on his part to have testified that the applicant and Mello signed the cheques of the 31st December 2018. One can go to the bank to cash a cheque alone and the bank will call any of the signatories to confirm if it can be cashed.

18. The cheques at A14 were not signed by the applicant but were cashed. Pages 15-19 are cheques without the applicant’s signature. He did not know how the bank confirmed the cashing of such cheques without the principal’s signature. By testifying that he had seen signed blanked cheques, he meant that the applicant and Mello said those, for instance, after obtaining costs of service or products from a supplier, whoever had the cheques would just insert the amount. He has experienced the same practice as well.

19. In 2018 and 2019 the Department trained them on finance when they became SGB members. They had observed discrepancies in monthly and quarterly financial reports and had then referred the books to the bookkeeper. It was the applicant who pointed out the discrepancies to them.

20. The Financial Clerk was appointed by the previous SGB and he could not confirm things that happened prior to his time. During his time, Doreen had entered cheques as per A14-16. There was a book written in pencil which has since been lost. The applicant was advised in his presence to open a criminal case. He could not offer any comment about there not being a cash analysis book when the applicant was the deputy principal or the principal.

21. A20 is a requisition form used when a cheques is issued and it is completed by the principal and the Treasurer. The SGB signs when they pay or when the supplier is paid. The requisition form is signed by the principal, treasurer and the SGB chairperson. The principal is the accounting officer and had to have knowledge of what was happening. The cheque book stayed with the Finance Clerk and the principal had access to it.

22. Mello had said that he was working with the applicant and the latter had refuted his allegation. He attended meetings with Manavhela, the auditor, Didi and the other SGB members where Mello was present. He agreed that Mello admitted to having stolen the money in that meeting and did not mention the involvement of the clerk. It could have been an omission by the scriber that the minutes of the side meeting before the general meeting did not mention the name of the applicant and that of Doreen.

23. Seth further testified that he attended two meetings with the District Director in November. They could have had a meeting with the Director on 07 August and he never corrected the meeting minutes to reflect the implication. If he had written the minutes, he would have corrected them.

24. As per A3, they had several meetings on the issue and the applicant had told them that he had escalated the problem to the IDSO. It was the SGB Executive and the applicant who reported the matter to the IDSO on 23 August. He denied that when he invited Director to the school he had done so on behalf of his political party. It was the parents and not his political party members who attended the general meeting. After the disclosure of the embezzlement of funds, he had worked with the principal until his last day. He did not know what was the Function D Report.

Gregory Lucky Mphahane (Mphahane)’s evidence under oath

25. Mphahane testified that he is the IDSO (Institutional Development Support Officer) lately referred to as Cluster Leader (formerly referred to as an Inspector). School principals report to him. The applicant had called him regarding issues of unauthorised activities in the school account. The applicant had informed him, by email as per R9, that Mello had confessed to have played a part in the unathorised activities on the school account. He escalated the matter to his senior and the Finance Unit. A criminal case was opened against Mello. Kgopane was investigated and subsequently dismissed.

26. He further testified that it is the duty of the principal to ensure that there is no embezzlement of funds and that proper financial management principles must be complied with. The applicant was also shocked on how he could have missed such occurrences and appeared surprised. There would have been a series of finance training since the applicant assumed the position of principal but he would not be aware of the depth of such training. According to his discussion with the applicant, the latter did not play any part in the embezzlement, had not seen the cheques and did not have clear information on the cheques. The applicant had told him that the Administrator would come to him while busy to ask him to sign and he would not have had time to interact with her about what he was signing for.

27. He also stated that he had a meeting with the SGB on the matter when the applicant was said to be implicated with Mello. There were varying feelings between the SGB members whether the applicant was guilty or not. The EFF had organized itself rallying around the notion that the applicant was unwanted at the school. According to him, he felt that the dismissal was too harsh given the manner in which the embezzlement occurred. His suspicion was that the whole thing was orchestrated.

Under cross-examination, Mphahane testified that:

28. He has never requested to see the school’s financial records. He had labored under the impression that all was well. Function D is money allocated to the school with prescription on its usage. He is not sure how regularly the school has to report on its finances and the applicant’ school has always been reporting to the District on its finances.

29. He knew that there were financial management training sessions but did not know if the applicant had attended them. He had no comment to the applicant’s version that he was invited once to a workshop dealing with Function D. He will not rule out the external whole school evaluation having taken issue with the applicant’s school financial management. He acknowledged that its report stated that the IDSO should ensure that the responsible persons dealing with finance (Finance Officer) should be adequately empowered to deal with finances at school and that the IDSO should monitor periodically that the financial management and systems are in place and that appropriate reporting is done. Against the background of that acknowledgement, he testified that there are units dealing with finance and responsible for school financial issues. They support and monitor the schools.

30. He was not aware that the applicant was only trained in finance recently and that he could not transfer his skills because he was banished from the school. He would not offer any response to a version that the applicant was only trained after the finance officer had left the school. He disputed that the school depended on the Function D report to capture money movements.

31. It was possible that the Brakpan principal was dismissed for financial mismanagement and was reinstated by the Minister with a sanction of three months’ suspension. Mello had confessed to have participated fully with Kgopane in stealing the money and that the dismissal of the applicant was harsh.

The Applicant’s Case

Edmund Fana Digashu (the applicant)’s evidence under oath

32. The applicant testified that he managed the school and ensured that management was unified. He was blocked from entering the school by EFF members following investigations that he had requested investigations into financial irregularities. The former SGB chairperson in cohort with the finance clerk stole money from the school. The financial transactions were recorded on the cheque requisition book which the finance clerk kept in the lockable room where she was based. The cheque requisition had to be processed first and the SGB executive in collaboration with the finance committee would present what was supposed to be purchased to the finance clerk who will complete the cheque requisition based on the quotation presented to her.

33. The requisition had three signatures of SGB members who are supposed to approve whatever was being purchased. The three members were himself as the principal, SGB member and treasurer. The requisition will be given to the finance officer to action the writing of the cheque. She will bring it back to the principal and the co- signatory. When the cheque came, they verified the information of the cheque against the information on the stubs as well as the information on the cheque all which must correlate with the information on the quotation. If the cheque is addressed to the supplier, it will be given to the supplier. If it is for the purchase of something to be bought, it will be given to the payee to go and cash it so that the relevant purchase can be made.

34. The school did not have the EFT facility. They will address the cheque to the SGB member to cash and pay the service provider. SGB member will have to bring the slip to the finance clerk to file it together with the cheque requisition, copy of the cheque, quotation and invoice. Financial records were used to verify if the cheque had fulfilled its purpose. A bank statement would also be used to confirm the withdrawal.

35. When he started at the school, the cheque requisition together with the invoices were the internal controls that the school was using to track income and expenditure and it worked very well. The documents were put in one file, i.e. the requisition, quotation, invoices and the receipts. The monthly file at the end of the year will be taken to the bookkeeper who would draw the financial statement using information from the twelve monthly files.

36. A32 was the cheque signed by Mello and Dzukula dated 06 December 2017 with cheque number 10297. He did not sign this cheque. His thinking was that the cheque was one of those which were stolen because during this period they were not using that particular cheque book. The cheque is for R39 950.00. A33 items mentioned are similar to those mentioned at A30 and the amounts are more or less the same. His thinking was that people that stole the cheque on A32 used an invoice on A30 to design an invoice on A33. He did not notice that there was a stolen cheque, basically because he did not have a book where he was recording the cheques in their sequence when they were purchasing goods.

37. Like any other member of the SGB, Mello would be used to write out cheques in his name, for example, when it was for catering usage in the SGB meetings or for SGB members transport. At times they would sign a cheque for R5000 when they are aware of another meeting to take place soon to avoid the cashing of multiple cheques.

38. On A21 the cheque payee is Mello and the amount was R38 950.00 but recorded on the stub as R9 353. He and Mello had signed this cheque. The amount on the counterfoil is R9 853. He together with Mello and Dzukula signed the cheque. The cheque was prepared by Mello which was the first discrepancy as Mello did not have the authority to prepare cheques. The amount written on the cheque was altered after he had signed the cheque because the amount on the stub differed with the one on the cheque. The finance clerk had written it with an erasable pen, took it to him, the cheque was erased and Mello prepared it.

39. Fourteen cheques had discrepancies. A24 is a cheque requisition and the cheque thereof is one on A25. The cheque was authorised for R5 000 as is the amount on the counterfoil but the amount on the cheque is R31 605. The cheque, requisition and counterfoil were prepared by Kgopane and Mello. He and Dzukula authorised the requisition. He thought Mello wrote the amount after it was altered. The cheques were prepared and fully written and were thus not signed blank cheques.

40. A26 was the requisition of R6 000 prepared by Kgopane. At A27, the stub as written on by Kgopane indicated R6 000. He signed the cheque. The amount was later changed to R29 995 and was written in Mello’s hand writing altering it to R29 955 after he had signed.

41. Mello stole money amounting to R578 712.80. with assistance of the finance clerk. The cheques were kept at the safe of the finance clerk’s office. The finance clerk is the only person that had access to the safe pin and keys to her office.

42. He further testified that the finance files were taken to the bookkeeper in April 2019 for annual financial statement preparation. On 28 June 2019, the bookkeeper indicated to him some unaccounted transactions. The cheque stubs and the cheque debited amounts on the statement were not correlating. There were also transactions without requisition and supplier invoices but the school account was debited. On the other hand, there were requisitions which had amounts on the stubs different from the cheques. In this group of transactions, there were cheques with requisitions that he had signed which were accompanied by invoices and cheque stubs but the cheque copies were not there and had large amounts.

43. He requested Standard Bank for copies of the cheques and requested the bookkeeper to send him a formal email to forward to the Finance Clerk. He took the Finance Clerk with him to the bookkeeper and the Finance Clerk indicated to the bookkeeper that there were no other documents left in her office. The Finance Clerk also stated that she did not know why there were no copies of the missing cheques. On 31 July 2019 he took the new SGB finance committee to the bookkeeper. It was during that time that he decided to inform the SGB of the financial situation.

44. SGB meeting was held on 02 August 2019 and they took a decision to call Mello and Dzukula since they did not have answers to the unaccounted transactions. The meeting reconvened on 07 August 2019 and when Mello was questioned, he tried to implicate him. No resolution was arrived at on that day.

45. A full SGB meeting was held on 07 August 2019 and prior to its commencement Mello requested a side meeting with the SGB Executive. Mello apologised for wrongfully accusing him in the previous meeting and admitted to have defrauded the school with the assistance of Kgopane. He was asked if he was ready to confess to the full SGB and he answered in the affirmative. He then confessed to the full SGB meeting that he colluded with the Finance Clerk to steal money for their own benefit. It was resolved that the matter be escalated to IDSO who promised to come to the school on 13 August 2019. Mello was suspended from the SGB activities pending the intervention of the IDSO.

46. Between 07 and 13 August 2019 the District did not do anything and he went back to the SGB for further action. On 22 August 2019 the SGB Secretary wrote a letter to the IDSO as a follow up to his letter and still nothing happened. On 11 September 2019 he informed the District Deputy Director in finance and she said that she was awaiting a formal report from the IDSO. He went back to the SGB on 16 September 2019 where they took a resolution to open a criminal case against Mello which was done at the Tembisa Police Station using Mello’s confession letter on 20 September 2019. The District did not do anything until the matter was reported to the parents on 27 October 2019.

47. The District Director visited the school on 05 November 2019 and insisted on having a meeting with the SGB and parents as the latter had indicated that they were going to stop the examinations if the District did not intervene. The meeting was then held later on that day with the Director and the EFF. They had gone to the meeting knowing same to be parents meeting but parents were not invited. Parents are normally invited through letters and this was not done. In the meeting it was resolved that he be left alone until the investigation was completed.

48. It was fair that after the investigation he was charged and found guilty. However, the sanction was extremely harsh. He was appointed into the position with strong curriculum expertise without any form of training on finance. Crooks had taken advantage of him. He wished that he had received finance training long before the incidents had happened. He only received training in July 2019 after the investigation into the financial irregularities at the school. The district governance unit came to the school to orientate them on how to run school finances and this was in response to the findings of the investigation. He had taken it upon himself during his precautionary suspension to register for a course in accounting governance which he completed at the end of 2020. He feels that the department could have given him an alternative sanction which could have either included a suspension without pay or a demotion or any other post that could have kept him in the system. The fact that he did not steal the money and that there was a confession point to the harshness of the sanction. The Brakpan High School principal was involved in a similar matter and was dismissed. Upon appeal, he was suspended and had financial training recommended for him.

Under cross-examination, the applicant testified that:

49. His main concern was on the harshness of the sanction. Even though he was the accounting officer, Kgopane was the finance officer with a Diploma in Finance Management. Even though his position puts him as the accounting officer, Kgopane was an expert more than anyone in the SGB. He was outsmarted by Kgopane who colluded with Mello with extensive experience in the SGB. He acknowledged that the respondent had the right to charge him as the accounting officer.

Ramatabane Joseph Manavhela (Manavhela)’s evidence under oath:

50. Manavhela testified that he became a member of the SGB in 2019 at the school. He occupied the position of Treasurer later on as an executive member. The financial irregularities were discovered on or about August 2019 when the bookkeeper informed the applicant of same. The applicant had meetings with the bookkeeper and the finance clerk on the finances whereafter the applicant convened the SGB to inform it. The SGB executive immediately decided to have a meeting with the bookkeeper to find out what had happened. The finance clerk said he had no knowledge of what had happened.

51. Mello and Dzukula were seen by the SGB and in that initial meeting Mello said he knew nothing. When he was pressed on the cheque that he cashed on 31 December 2018, Mello agreed to have cashed that cheque and started implicating the applicant stating that he did so with him. The applicant never responded and was surprised at the allegation by Mello. The SGB executive decided on an emergency meeting with the full SGB for the following day. Before this meeting could start, Mello asked for a meeting with the SGB executive first stating that he wanted to clarify something. Mello stated in that meeting that he had wrongfully accused the applicant on the previous day. Mello also said that even the treasurer was not involved in the embezzlement of funds. He said that it was himself and Kgopane who were involved in the stealing of the funds. Kgopane was then called into the meeting and she flatly denied any involvement. Mello stated that he was prepared to repay the embezzled amount at R500 per month. In the meeting of the full SGB, Mello confessed to having stolen the money acting in cohort with Kgopane.

52. Mello was suspended from the SGB and before the applicant was suspended, there was a meeting where parents were called and the EFF was involved. The meeting was dominated by EFF members. The applicant was forcefully removed from the school by EFF members and suspended by the District.

53. It was discovered during the investigation that there were cheques signed by the principal, treasurer and the chairperson. Part of the applicant’s problem was that he was negligent. Part of the SGB function was to oversee the smooth running of finances and it did not do the right thing. They were there to steal the money. A24 was supposed to have been signed by the treasurer, principal and the chairperson.

Under cross-examination, Manavhela testified that:

54. He was not protective of the applicant and there was no personal gain to be derived there from by his testimony. There were people who confessed to have stolen the money. The department was correct to charge the applicant for negligence. The applicant was wrong as per A24 to have allowed Mello to be a payee when he was one of the people who authorised the cheque requisition. The principal is the accounting officer. Kgopane was dismissed. The applicant’s charge was about negligence and not stealing the money.

55. It was submitted in closing that the applicant bemoaned the harshness of the sanction and stated that a lesser sanction would have been appropriate. This was, largely, to the evidence that those that had stolen were known and that Kgopane was dismissed without challenging her dismissal. In Nampak Corrugated Wadeville v Khoza (1999) 20 ILJ 578 (LAC) at 33 the court held that the determination of an appropriate sanction is a matter which is largely within the discretion of the employer. In Waterkloof Municipality v SALGBC Western Cape Division the court held that the fairness determination of the fairness of the sanction entails comparing the reasons given by the employer to justify dismissal with the reasons given by the employee for challenging it.

56. The applicant conceded to be the accounting officer. The commissioner should impose a sanction based on the submissions of the parties at the arbitration. The respondent acted within its ability on the strength of the case and the facts presented during the hearing to dismiss the applicant.


ANALYSIS OF PARTIES EVIDENCE AND ARGUMENTS


57. Section 191 of the Labour Relations Act 66 of 1995 (as amended) (the LRA) places the onus of proof on the employer to prove that the dismissal was fair. The procedural fairness of the dismissal is not challenged in this matter but only the substantive fairness is challenged in relation to the harshness of the sanction. The issues that were in contention in this matter were that the applicant’s dismissal was unfair in that the embezzlement was done in a manner that nobody would have prevented it and that it was a normal practice for the school to issue cheques as he did and that it was never challenged by anyone.

58. The applicant had two charges proffered against him. Charge 1 was an allegation that during the period February 2018 and May 2019 as the principal of Entshonalanga Primary School he had failed to prevent financial maladministration by the SGB chairperson, Mello, when he defrauded school funds to an amount of R578 712.80 and charge 2 was an allegation that during the same period he signed school cheques amounting to R492 056.80 wherein he knew or ought to have known that the SGB chairperson, Mello, was a payee of those cheques.

59. As regards the first charge, the applicant has admitted that he was the accounting officer and had to oversee the management of the school funds. However, he testified that he was not trained in school financial management and only attended the training after he was suspended on the allegations of the financial irregularities in question. The respondent did not adduce any evidence to the contrary in terms of the applicant ‘s testimony that he was not trained. The respondent’s witnesses were not sure that the applicant was trained though certain financial management training sessions had taken place.

60. The question is whether with or without training the applicant could have prevented the embezzlement of the school funds, and in particular the fraud confessed to by Mello. The applicant had access to the cheque book and could have seen the stubs and the cheques issued to Mello. He could have seen that there were discrepancies between the amounts in the stubs and the actual cheque amounts cashed. He had access to the requisition book which he had signed for certain amounts which were true amounts and could have used same to compare the actual cheque amounts. However, the latter would only have been possible depending on when the actual cashed cheques were returned to the school for such a comparison to be undertaken.

61. The employment relationship is one of trust. I cannot wholly fault the applicant for having trusted that Mello and Kgopane would act in terms of the requisition form amounts. In fact, Mello was the chairperson of the SGB who was supposed to act in the best interest of the school and Kgopane was directly appointed to safeguard the monies of the school. Kgopane and Mello did the exact opposite and colluded to defraud the school taking advantage of the applicant’s trust. It is not trust alone that was supposed to be at the core here for the applicant. This had to be coupled with some sensitisation and knowledge through financial management training. This would have emphasised that trust alone is not the only thing but that certain activities had to be looked out for when transacting on school account in terms of issuing of cheques.

62. While I accept that the applicant was negligent in his conduct of not ensuring that the amounts for which he signed the requisition were truly reflected on the corresponding cheques, I cannot find it fair that such negligence should warrant his dismissal. The finance officer was entrusted to action the writing of the cheques. The people that defrauded the school are known and Mello had confessed. He was not trained to use watertight processes of ensuring that there was no fraud and had relied on trusting Kgopane and Mello and the two had abused that trust. The lesson for the applicant should be that trust alone is not sufficient when dealing with money but that he must ascertain himself that what had been signed for is what is cashed at the bank. This will involve an intense process of overseeing the school account transactions on a monthly basis and where he is in doubt to refer same to the bookkeeper so that instances occasioned by Mello and Kgopane could be prevented as early as possible.

63. The assumption that principals by virtue of their academic excellence and experience as teachers should be as excellent in financial management is fallacious. The finance world is different from school academia and requires special skills and knowledge. This is attested to by the fact that the applicant has since been taken to school for financial management training. Unfortunately, this was after the incidents of irregularities occasioned by Mello and Kgopane. I, accordingly, find that though the applicant was negligent, his negligence was occasioned by lack of training in finance and too much reliance on trust of the SGB chairperson and the Finance Clerk.

64. The second charge related to issuing cheques in the name of Mello to pay suppliers and buy materials and products for the school. The applicant’s contention was that this was the normal practice and that nobody had challenged such a practice. It was even done at the time that he was the deputy principal. The respondent led no evidence to disprove what the applicant had referred to as normal practice. Even if this was against financial management principles, the applicant would not have known about it since he was not trained in financial management. He had found a practice in existence and continued with it without anyone challenging him on that practice. There were financial reports that reached the district which also did not caution against such a practice. The issuing of cheques is a long outdated method of payment and is very much susceptible to abuse and the school has since discontinued it.

65. The applicant has shown remorse for his failure to exercise oversight on school financial matters. He has been trained on same and has, himself, enrolled and completed a course in school finance management with UNISA in 2020. This is a sign of someone who is accountable and ready to serve with knowledge and very much remorseful. To punish him for the fraudulent conduct of a SGB chairperson and Finance clerk would be a cruel condemnation devoid of the circumstances under which he became negligent. The school may still lay criminal charges against the people who stole from the school to recover the money lost.

66. I, accordingly, find that the applicant was negligent in his conduct but that the circumstances of the infringements excuse his conduct. He does not come with clean hands owing to his negligent and should therefore not be retrospectively reinstated. He will forfeit what would have been his full payback had he had clean hands in his dismissal. A reinstatement with no back payment is just and equitable in the circumstances.

AWARD

67. The dismissal of the applicant was substantively unfair.

68. The respondent is ordered to reinstate the applicant into the position of school principal on the same terms and conditions of that position.

69. The applicant is to report for work on 12 September 2022 at the relevant District Office or at the school where he worked prior to his dismissal.


Mathabo Makwela
ELRC Panelist