ELRC 566-21/22 LP

Case Number: ELRC 566-21/22 LP
Part Time Senior Panelist: M.A. HAWYES
Date of Award: 26th October 2022

In the ARBITRATION between

PEU obo Ms. M.L. Mmola
(Union/Applicant)

And

Limpopo Department of Higher Education
(First Respondent)

Union/Applicant’s representative:
Union/Applicant’s address:

Telephone:
Telefax:
E-mail:

Respondent’s representative:
Respondent’s address:

Telephone:
Telefax:
E-mail:

DETAILS OF HEARING AND REPRESENTATION

1. The case was scheduled for arbitration online via Zoom for three days namely the 24th March 2022, the 9th September 2022 and finalized on the 14th October 2022.
2. After completion of the arbitration the parties requested the opportunity to submit written closing arguments by the 21st October 2022. The closing arguments were timeously received and my award now follows.
3. Mr. K. Mohlatlole, a union representative from the Professional Educators Union (PEU) represented the Applicant.
4. Mr. N.E Nyathela, a labour relations official, represented the Respondent.

ISSUE IN DISPUTE


5. Whether the Applicant’s dismissal was substantively fair or not. Procedural fairness is not in dispute in this matter.


BACKGROUND TO THE ISSUE IN DISPUTE

6. The Respondent employed the Applicant as a PL 3 educator (Deputy Principal) at the time of the incidents that led to her dismissal.
7. It is common cause that the School Governing Body (SGB) had met and agreed that after the previous Principal had retired, the Applicant would act as Principal.
8. The Respondent produced a bundle of documents which was accessed electronically during the course of the arbitration.
9. The proceedings were digitally recorded and detailed long hand notes were also kept.
10. The Respondent leveled four charges against the Applicant i.t.o section 18 (1) (ee) of the Employment of Educators Act, no 76 of 1998 (as amended) (EEA) following her appointment as Acting Principal of the school in that during 2018 and 2019 or at any period incidental thereto, at or near Mogalatladi Primary School, she committed an act of dishonesty in that:
10.1 Count 1: She signed a confirmation letter of the vacant posts and appointment letter on behalf of the SGB Chairperson, Mr M.C Majomane without his consent.
10.2 Count 2: She signed a confirmation letter of the vacant posts and her appointment letter as an acting principal on or on behalf of the SGB Secretary, Ms. L.B Lekala without her consent.
10.3 Count 3: She signed Mr. Moloto’s contract of employment extension on behalf of the SGB Chairperson, Mr M.C Majomane without his consent.
10.4 Count 4: She signed Mr. Moloto’s contract of employment extension on behalf of the SGB Secretary, Ms. L.B Lekala without her consent.

SURVEY OF THE REPONDENT’S EVIDENCE AND ARGUMENT

11. The Respondent led the evidence of two witnesses namely Mr. M. Mahudu who investigated the various allegations against the Applicant after she had been suspended.
12. Mahudu gave hearsay evidence (which after consideration I admitted) that he had interviewed the Acting Principal of the school in the Applicant’s absence Mr. Moela, two educators and two members of the SGB.
13. It was mentioned that during August 2018, September 2018, October 2018 and December 2018, the Applicant had signed various documentation that was meant to be signed by the Chairperson and the Secretary of the SGB. They regarded this as forgery since she had signed their signatures on the paperwork that was forwarded to the District office and fraud.
14. The Applicant, when interviewed, had mentioned that she had been given permission to sign the documentation because the Chairperson of the SGB was not available but this was denied and the Applicant did not press the matter further during cross examination.
15. Both the Chairperson and the Secretary of the SGB advised him that they had not given the Applicant permission to sign in their stead.
16. Ms. Lydia Lakala testified that she was the secretary of the SGB at the time of the incidents in 2018.
17. Lakala confirmed that the Applicant had signed for the appointment of one PL 1 educator and for herself as the Acting Principal.
18. The Applicant had later apologized for signing on her (Lakala’s) behalf and she had asked for forgiveness. Lakala testified that she forgave the Applicant.
19. Lakala testified that the Applicant was later charged and dismissed for the said signings.
20. The Respondent had intended calling one further witness, the Chairperson of the SGB who had been subpoenaed for this purposes. However, when Nyatela encountered problems in securing the attendance of the witness on the 14th October 2022, he elected to close his case.

SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENT

21. The Applicant submitted that the Respondent had not lead sufficient evidence to prove its case against her and thus elected to close her case without leading evidence and calling any witnesses.


ANALYSIS OF EVIDENCE AND ARGUMENT

22. It is common cause that the Applicant in correspondence to the Respondent signed on behalf of the Chairperson and the secretary of the SGB in the instance of the appointment of Mr Moloto (PL 1 appointment and her own appointment).
23. The documentation in the Respondent’s bundle supports this and the documentation was never materially challenged or discredited.
24. The hearsay evidence given by Mahudu is supported by the documentary evidence and the Applicant never challenged Mahudu’s hearsay testimony that the Chairperson of the SGB Moloto had not given permission for her to sign on her behalf.
25. The evidence of Lakala that the Applicant had apologized to her and asked for forgiveness for signing on her behalf as secretary of the SGB, was never challenged under cross examination.
26. The evidence that came forth from Mahudu is that the Applicant signed the documentation in the absence of the SGB Chairperson. This was also never challenged under cross-examination but the Applicant elected not to give testimony under oath so the exact reasons that prompted her to sign the documentation on behalf of the SGB Chairperson and the SGB Secretary are not before me.
27. In the absence of the Applicant’s own testimony the allegations against her are strengthened. The Applicant own tacit admissions of guilt and remorse are adequately articulated in the Respondent’s evidence.
28. The Applicant committed four separate acts of misconduct by fraudulently signing on behalf of the SGB Chairperson and SGB secretary on four separate occasions. Thus the question of duplication of charges does not come into play since each individual signature constituted a separate act of misconduct. She misrepresented that she was authorized to sign on their behalf. The Applicant wrote (signed) the GGB Chairperson and Secretary’s signatures utilizing their names. The Applicant did not sign in a representative capacity and indeed she could not lawfully so sign since she had received no authorization. I find that the Applicant also unjustifiably forged the signatures of the two said individuals. Prejudice does not have to be actual prejudice but may be potential prejudice. The signing of documents by someone in their own case and/or on behalf of others without their authority can never be condoned and prejudices the orderly and legitimate business of the Respondent’s affairs.
29. The Applicant committed four acts of dishonesty and I find that dishonesty always breaks the trust relationship.
30. The sanction of dismissal imposed in this instance was appropriate under the circumstances.

AWARD

31. The Applicant’s dispute referral is dismissed.

MARK HAWYES

PART TIME SENIOR PANELIST