ELRC796-21/22EC

ARBITRATION
AWARD

Case Number: ELRC796-21/22EC

In the matter between

Cynthia Nomhle Matshaya Applicant

and

Department of Education: Eastern Cape Respondent

Appearances: For the applicant: Mr Etienne Pretorius (Pretorius Attorneys);
For the respondent: Mr Thobelani Mlahleni

Arbitrator: Mxolisi Alex Nozigqwaba
Heard: 28 March 2022; 03 May 2022; 11-12 July 2022; 20 September 2022
Delivered: 12 October 2021
Summary: Labour Relations Act 66 of 1995, as amended, sections 136(1), 185(a), 186(1)(a),
191(5)(a).


DETAILS OF HEARING AND REPRESENTATION
1. This arbitration was heard, virtually via ZOOM, on 28 March 2022; 03 May 2022; 11-12 July 2022; and 20 September 2022. Ms Cynthia Nomhle Matshaya (applicant) was in attendance in all sessions and was represented by Mr Etienne Pretorius (from Pretorius Attorneys). Eastern Cape Department of Education (respondent) was represented by its labour relations officer, Mr Thobelani Mlahleni.
2. The dispute had been referred to the ELRC in terms of sections 136(1) and 191(5)(a)(i) of the Labour Relations Act 66 of 1995, as amended (LRA), and concerns dismissal related to misconduct which the applicant regards as unfair.
3. The proceedings were digitally recorded.
4. On the last day of the arbitration parties elected to submit written closing arguments and they both submitted in line with the agreed submission time frame, which was 29 September 2022. I have taken these heads of arguments into consideration in penning this award.
LEGAL REPRESENTATION
5. On behalf of the applicant legal representation application was made, and key on her submissions was comparative ability as she was said to be less knowledgeable about arbitration proceedings as compared to the respondent’s representative who has appeared on several arbitrations. The respondent did not oppose the application.
6. I ruled in favour of the application on comparative ability basis.
ISSUE TO BE DECIDED
7. I am required to determine whether the applicant’s dismissal was substantively and procedurally fair. Should I find that the dismissal was unfair I will order an appropriate relief.
BACKGROUND TO THE ISSUE
8. The applicant started to work for the respondent in May 1981. At the time of her dismissal she was a principal at Mthawelanga Junior Primary School (JPS), and was earning a gross monthly salary of R45 392.94.
9. Her dismissal was confirmed on 09 December 2021. She was dismissed after she was found guilty of committing misconduct in terms of Employment of Educators Act 76 of 1998 (EEA), as reflected in the following three charges:
‘Charge 1: (section 18(1)(i)) She failed to carry out a lawful routine instruction without just or reasonable cause in that on 4 December 2019 she was given a directive by the District Director to discontinue the illegal extension of curriculum by introducing grade 5 or grade 6 in 2020 and you continued to introduce the grades in 2020;
Charge 2: (section 18(1)(f)) She unjustifiably prejudiced the administration, discipline or efficiency of the Department of Education, in that in 2019 and 2020 academic year she unlawfully introduced grades 5 and 6 at Mthawelanag SPS;
Charge 3: (section 18(1)(c)) She, without permission, wrongly used the property of the state (respondent) by unlawfully allowing children of grades 5 and 6 to be learners at Mthawelanga JPS during 2019 / 2020 academic year.’
10. The applicant is challenging the substantive and procedural fairness of her dismissal and is seeking re-instatement. On procedural challenge her submission is that she was not given a fair opportunity to present her case. On substantive fairness challenge she is saying she should not have been found guilty of the charge as her decision to introduce new grades was a result of pressure from parents.
SURVEY OF THE EVIDENCE AND ARGUMENTS
11. The respondent’s first witness, Ms Thembeka Gunguta (disciplinary hearing chairperson) testified that the applicant was charged in November 2019, and on 12 March 2020 she got her first notice for the hearing. There were several postponements, at both parties’ instance and due to COVID-19, up until the matter was concluded late 2021. In the disciplinary proceedings she was represented by a NAPTOSA official, Mr Mhlantla. The charges were presented to her, she pleaded not guilty, was allowed to challenge the employer’s version, and was allowed to present her side of the story. She called all the witnesses she wanted to call. The process towards the applicant’s dismissal was therefore free from any procedural defect.
12. Mr Siphiwo Bucwa (SADA area Circuit manager) testified that the applicant reported to him as she was a principal of Mthawelanga JPS, which was a school under SADA Circuit. The respondent had engaged in a process of rationalizing public schools. The process was to entail re-alignment, merger and close of schools. Mthawelanga JPS, which had grades R to 4, was affected by this process as according to the Circuit Landscape Plan (CLP) it had to be merged with Ixhadi Labantwana Junior Secondary School (JSS), which had grades 5 to 7. Upon completing this merger the prescribed new model prototype school of grade R to 7 would be achieved. The two schools were also in close proximity. This plan was communicated to the applicant, the SGB and the parents at large. In a meeting the witness attended where the applicant, parents and SGB were in attendance, parents cordially accepted and embraced the Mthawelanga- Ixhadi merger plan as they thought it had long been overdue. For a school to be allowed to extend its classes outside the CLP it would have to make an application, which would have to be approved before such extension (addition of additional classes) is carried through. Mthawelanga SGB had at some point extended the school curriculum and added grade 5 without the District’s approval, and the District Director had written a letter admonishing the school. The letter was served to the applicant and she signed for it on 04 December 2019 (page 2 of A). In the letter she was told that the school would not have grades 5 and 6, and that grade 5 learners already enrolled would be moved to Ixhadi. Subsequently thereafter in the following academic year the District learnt that the school still had grade 5 and had also unilaterally introduced grade 6. The District Office further learnt that SASAMS system, entrusted to Mthawenlanga, of which the applicant was accountable for, had been manipulated and information to the effect that the school was introducing grades 5 and 6 had been wrongfully entered. The school’s wrong decision led to some serious administrative challenges as resources, like new teachers, to cater for new grades had not been allocated. The applicant as the principal had the responsibility to uphold the law (policy) and guide the SGB, and it seems that she deliberately abrogated her responsibility and acted in concert with the SGB to break the law. The applicant had never advised the District that she was pressurized by the SGB and parents to introduce new grades.
13. Mr Nicolas Riaan Wilberforce De Bruyn (Chris Hani West District Director) testified that SADA Circuit is under his jurisdiction. He recalls that in terms of the District’s CLP Mthawelanga SPS, with rades R to 4, was to merge with Ixhadi Labantwana JSS, with grades 5 to 7, in order to achieve the graded R to 7 prototype. This plan had been communicated with affected schools, and it was known to the schools that they would not just introduce upper grades without seeking authorisation from the District Office. He referred to a letter which was served on the applicant on 04 December 2019 admonishing her for having unilaterally introduced grade 5 (page 2 of A). The letter also warned her not to introduce any further grades. To their surprise they learnt beginning 2020 that the applicant had again introduced grade 6. The applicant was the chief administrator in her school and should have provided proper guidance to the SGB. If there was any coercion from the parents and the SGB she should have communicated such to her circuit manager and the District Office. Interventions had to be done to ensure that learners in these classes improperly set grades get tuition and gain access to all necessary resources. This prejudiced the administration of the Department as the wrongful act was done without allocation of requisite resources. It was put to him that the applicant had sought to meet him in order to inform him about the parents forcing her to upgrade the school. The witness denied knowledge of such meeting appointment. The witness took issue with the fact that the applicant never alerted any official from the District, including his circuit manager, about the coercion by parents.
14. The applicant testified that Mthawelanga SPS parents and SGB met in August 2014 and resolved that they wanted to apply for upgrade of the school to have classes up to grade 7. They lodged an application through the District which was not immediately attended to. They waited for an answer until 2018 wherein parents resolved to lodge another application, which they did. When she inquired later about the application she was told that Zwelitsha Head office was handling such applications and they would hear from them. When answers about the application were not forthcoming parents told her in 2019 that they would forcefully open grade 5 for their children, which they eventually did. She recalls the meeting wherein Mr Bucwa had encouraged parents to take their children to Ixhadi Labantwana upon completing grade 4. At some point the applicant and the SGB had arranged a meeting with the District Director on 29 July 2019, which he failed to attend. The applicant and the SGB then went to Zwelitsha for further inquiry where they were advised to go to the District and ask the District to fill the upgrade form even if it does not support the upgrade, and then have that form sent to Zwelitsha. They had also learnt that re-alignment and merger was meant for schools with 139 learners. Their learners were way above 500. Parents instructed her to apply for upgrade and get hold of temporal structures to accommodate the new grades. The applicant maintains that she never forced that the new grades be opened. It was the parents who pushed for new grades. The administration clerk supported her version in the disciplinary hearing that it was the parents who forced that new grades be introduced. She acknowledged having the October 2019 letter warning her against introduction of new grades. She also recalls receiving 04 December 2019 letter warning her about introduction of further grades. On whether she had alerted the District about the parents forcing her to upgrade notwithstanding the instruction she testified that she had at some pint sought and arranged a meeting with the District Director, and in the planned meeting he was going to tell him about the parents forcing her to upgrade the school. Unfortunately, the meeting never materialized.
15. On the issue of procedure, the applicant testified that her notice of hearing was sent to her NAPTOSA, and got to her through her union. She takes issue with that as she says she should have been directly served. The applicant also did not understand the charges because of the way they were drafted. The applicant also says she had requested rationalization policy and the CLP document and these were not given to her for purposes of preparing for the hearing. Rationalization process was explained by word of mouth. During the hearing she and her witnesses were allowed to present oral evidence.
16. Mr Nkululeko Kalolo (the then SGB Chairperson) testified that the applicant should not have been dismissed as it was the SGB that took a decision that it would unilaterally upgrade the school after its application was not attended to. The applicant had informed them that she had been told that it was illegal to upgrade the school. They continued as they thought it was their right to decide about the future of their children.
17. Mr Kalolo’s version was corroborated by Mr Simphiwe Ndingane’s (SGB member) testimony. He stressed that it was the parents’ decision to upgrade the school, and not the applicant’s. Parents got frustrated when their two applications were not answered. That is why they resorted to forcefully introducing new grades.
18. Mr Khumbuzile Nelson Dyantyi (SGB member) testified that they had an understanding that their school would not be part of the re-alignment process as learner numbers in it were far above 135, which was a set milestone for a school to be re-aligned. He is not taking the applicant’s dismissal well as she got dismissed for having taken steps they, as parents and SGB, had instructed her to do. They had given her the instruction as they were acting in the interests of their children. He recalls Mr Bucwa telling them in an arranged meeting that they should take their kids to Ixhadi. The respondent ended up taking children from upgraded grades 5 and 6 to Ixhadi without parents’ consent. On whether the applicant had alerted them about the letters from the District Director instructing her not to upgrade the school to any classes beyond grade 4, his answer was that no such letters were communicated with the parents and the SGB.
19. Ms Thandeka Eunoria Tyeni (educator and SGB teacher component member) testified that she could not understand the dismissal of the applicant as she went along with upgrading the school due to pressure from parents. Parents got impatient after having waited for a long time for a response pertaining their application for upgrade. They told her it was their children’s interest at play, and therefore they would upgrade unilaterally. She is not aware of any letter the applicant got from the District instructing her not to engage in upgrading the school.
20. Ms Nombuyiselo Helga Mthi (Mthawelanga SPS administrative clerk) testified that the applicant should not have taken the fall as it was the parents who had upgraded the school. She believes that parents did the upgrade in line with procedure as they opted for taking things in their hands after their application was not responded to. She also believes that parents have a right to take their kids to where they want their kids to school. On feeding data to SA-SAMS which ultimately gave way for introduction of grades 5 and 6 the witness acknowledged that it was her who fed the data into the system and she did that inform the applicant after being forced by parents.
21. For the respondent it was argued that employees are obliged to respect and obey their employers. Lack of such respect from employee would render employment relationship intolerable. The applicant had been given a letter by the District Director, clearly warning her of the consequences of further introducing another grade after she had introduced grade 5. She nonetheless continued despite the warning and introduced grade 6. Her conduct displayed disrespect of her superiors, and this resulted in employment relationship being rendered intolerable. Dismissal was therefore appropriate in the circumstances and should be confirmed.
22. For the applicant it was argued that she not register the children to grades 5 and 6. The parents are the ones who forcefully registered their children and there was nothing the applicant could do. She had to go along with parents’ wishes. By allowing the grades to be added it has not been proven that the applicant broke any known and generally applied rule. The appropriateness of dismissal sanction was never shown or proven by the respondent. On the issue of procedure, the charges were vague and embarrassing as they merely pointed to the piece of legislation broken and were never elaborate enough to cater for an educator with no legal training. Parents were not approached before dismissal sanction was handed down. The applicant maintains that her dismissal was procedurally and substantively unfair. She had a clean disciplinary record and thus did not deserve to be punished at first instance with dismissal. She therefore prays for re-instatement with full back pay for lost salary.
ANALYSIS OF EVIDENCE AND ARGUMENTS
23. From the evidence led I have not been upraised of any concrete set of facts suggesting that the applicant was not timeously notified of the disciplinary hearing, was not served with charges to enable her to prepare for the hearing, was not afforded opportunity to challenge the respondent’s version and put her version across. The notice was served to her union, which in turn gave it to her. No prejudice was suffered as she got to know of her hearing. There was a submission to the effect that the charges were vague because of mentioning legislative provisions of EEA. Inasmuch as legislative provisions are part of each charge I am not convinced that such approach rendered the charges vague. In addition to the legislative provision mentioned each charge goes further and mention the allegation against the applicant, and this would have enabled her to respond and put her version across. The procedure leading to the applicant’s dismissal was therefore fair and without fault.
24. The applicant was a principal and was the professional ex officio deployed member to co-lead with the SGB chairperson. Inasmuch as she is part of the SGB she is directly accountable to her employer whose executing authority is the respondent’s Head of Department (HoD), and some of HoD powers are delegated to District Directors. The respondent had a re-alignment plan in terms of which Mthawelanga (with grades from R to 4 was to merge with and be a feeder school to Ixhadi Labantwana). The applicant and her SGB were made aware of this plan. An application to add a class beyond grade 4 had been unequivocally turned down by the District Office. It surely came as a surprise when an additional grade was introduced by parents without the authority of the District Office, and notwithstanding the re-alignment plan that had been communicated. The applicant is claiming that she had been persuaded and forced against her will by parents to introduce grades beyond grade 4. This is hard to believe as there is no evidence suggesting that she had ever communicated her frustration of being coerced to the District Office. After grade 5 had been improperly introduced the District accommodated the grade 5 learners and ensured that they were not disadvantaged. The District Director then wrote to the applicant and warned her not to introduce any further grade. Contrary to this warning the applicant continued and worked in concert with parents and SGB and introduced grade 6. If her version to the effect that she was again coerced, at least she would have communicated with the District that she is being forced by parents to introduce a further grade.
25. In the circumstances I find that she acted in concert with defiant parents and thus failed to carry out a lawful and reasonable instruction (charge 1). By her conduct she also unjustifiably prejudiced the administration and efficiency of the Department as the respondent ended up being forced to make intervention plans in order to accommodate the grades 5 and 6 which were not properly catered and prepared for (charge 2). The applicant was also aware of the feeding of data to SA-SAMS and this led to the upgrading of the school without proper authorisation. She allowed the wrong utilisation of the respondent’s system for attainment of unauthorised objective, which was upgrading to grades 5 and 6. If she was not acting in concert with the parents she should have reported this to the District and sought intervention. She is therefore guilty of charge 3 as well.
26. The offenses committed by the applicant were seemingly committed defiantly as the applicant had previously been warned not to continue introducing a class further than grade 5. She had been given an opportunity to redeem herself and perform the correct instruction. She seemingly remained defiant and did the same wrong she had been corrected on. Acting this way can only be seen as direct challenge to the respondent’s authority. A persistently defiant employee is not worthy of being kept on the respondent’s employ as her stay can be rightfully be regarded as posing serious operational risk to the operations of the employer. In the case at hand serious operational risks were experienced as the respondent had to cater for grade 5 and 6 classes it had not planned to have in Mthawelanga. I find the sanction of dismissal to have been the correct response to the operational risk the applicant posed to the respondent’s establishment.
AWARD
27. I therefore make the following award:
27.1. The applicants’ dismissal was substantively and procedurally fair.
27.2. The applicant is not entitled to any relief.


Signature:

Commissioner: Mxolisi Alex Nozigqwaba
Sector: ELRC