ELRC236-20/21 KZN

IN THE ELRC ARBITRATION
BETWEEN:
ZIKHALE B N “the Applicant”
and
DEPARTMENT OF EDUCATION – KWAZULU NATAL “the Respondent”

ARBITRATION AWARD

Case Number: ELRC236-20/21 KZN
Date of the Award: 14 October 2022
ELRC Arbitrator: Jonathan Gruss
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601 E-Mail: gen.sec@elrc.co.za Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

1. This dispute was scheduled for arbitration in terms of Section 191(5)(a) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 7.2 of the ELRC Constitution : ELRC Dispute Resolution Procedures. The hearing was held via Zoom (virtual) on 13 May 2022, 6 July 2022, 7 July 2022, 22 September 2022 and 23 September 2022. The proceedings were electronically recorded. The applicant, Bonisiwe Maureen Zikhali referred a dismissal dispute to the ELRC. The applicant in the arbitration was represented by Adv Dlamini. The respondent, Department of Education: Kwa-Zulu Natal was represented by Ms Dumisa. The parties agreed to submit written closing arguments by no later than 4 October 2022 and have filed written closing arguments. The services of an isiXhosa interpreter was used during the arbitration.

ISSUE TO BE DECIDED
2. I am required to determine whether the applicant’s dismissal was both procedurally and substantively unfair.

BACKGROUND TO THE ISSUES

3. The parties submitted a pre-arbitration minute that recorded the following as common cause facts:
3.1 At the time of the applicant’s dismissal on 19 November 2014, she was employed by the respondent as a post level 1 educator at Sizama Inqubeko Combined School earning R19951.05 per month
3.2 She was teaching Foundation Phase. She commenced employment with the respondent on 1 March 1994.
3.3 The applicant was not represented at her disciplinary hearing that took place on 18 November 2014.
3.4 The applicant was dismissed on a charge that on or about 1 January 2006 and at or near Emaguqeni Primary School she submitted a false Diploma in Education allegedly obtained from Rand Afrikaans University (RAU) , and this resulted in the adjustment of the applicant’s salary, to defrauding the Department an amount in excess of R344 255.00, contravening section 18(1)(ee) of the Employment of Educators Act.
3.4 The dismissal dispute was referred on 17 March 2020.

4. The applicant claimed that her dismissal was procedurally unfair in that she received short notice to attend her disciplinary hearing, her disciplinary hearing notice was served on her on 13 November 2014, whereas her disciplinary hearing was held on 18 November 2014. She further claims that she requested an isiXhosa interpreter for her disciplinary hearing and her request was denied. She requested a postponement of her disciplinary hearing in order for her to arrange representation with her union. She wanted to arrange that Mr Ntweta from NATU would represent her. Her request for a postponement was declined. On substantive grounds, she claimed that she is not guilty of the misconduct for which she was dismissed, the qualification documentation submitted by her to the respondent was not false. The applicant sought to be reinstated.

5. The respondent submitted that the applicant was notified of her disciplinary hearing on 11 November 2014 and the same email notifying the applicant of her disciplinary hearings was also emailed to Mr Manyapye. The respondent disputed that the applicant requested a postponement and averred that at the commencement of the proceedings, the applicant indicated that she was ready to proceed.


SURVEY OF EVIDENCE

6. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.

RESPONDENT’S EVIDNECE

7. Ms Phindile Zwane testified under oath to the following effect.

7.1 During 2014 she worked at the respondent’s Internal Control and Risk Management section. Her duties entailed detecting and investigating fraudulent activities committed by government employees within the education sector. She attended the applicant’s disciplinary hearing and was a witness.

7.2 The applicant had brought in certificate diploma that was not authentic. She compiled an investigation report that was forwarded to the employee relations.

7.3 According to the investigation report, the Superintendent General of the respondent initiated an investigation whereby Internal Control and Risk Management Directorate was requested to verify the authenticity of qualifications submitted by educators in the Obonjeni District because he had, amongst other things, the following concerns; the grade 12 pass rate in that District was low and did not show any improvement. The approach according to the report due to the large number of educators they initially select personnel files by checking the salary progression on the persal staff records. In cases where the salary progression was suspected to not matched with a number of years it takes to acquire a particular qualification, that file was drawn. They therefore initially drew a sample of 100 files. In order to confirm their suspicions they went to one school where they interviewed an educator who confessed that she bought a Diploma for R3000.00. They then flagged out all the qualifications of the University of Port Elizabeth and Rand Afrikaans University which were similar to the one where an educator confessed that qualification was fake. In order to do justice to educators concern, they embarked on a process of visiting each and every educator whose qualification was suspected as not authentic in order to hear their sides of the story regarding the suspected qualification. The applicant’s diploma was faxed to Rand Afrikaans University for verification. It was discovered that the University could not find any evidence on the Lyceum College system to verify that the applicant had completed the course at the former Rand Afrikaans University and therefore the University could not verify the authenticity of the Diploma.

7.4. They received a statement from Eunis Sebabo, a student support service manager at Lyceum College for Higher Education. Ms Sebabo in terms of the statement confirmed that she had full access to the records of the College, and all acts relating to student administration would in cases come to her attention and all records which are kept are available to her. Her mandate was to comment on both authenticity of the Diploma as well as a results of the record search. She could not find any evidence on the Lyceum College system to verify that the student (applicant) had completed the qualification at the former Rand Afrikaans University and therefore she, Ms Sebabo could not verify the authenticity of the Diploma in question. The statement was dated 21 July 2014.

7.5 As to the investigation report indicating that the applicant taught at Emaqueqeni Primary School they located the applicant at Sizamonqubeko and she met with the applicant. The discussion was around the fact that she was investigating the applicant’s Diploma and the applicant claimed that she had enrolled at the institution, Lyceum College. She never requested the applicant to produce the original qualification. As to the verification letter written by Lyceum College and the qualification was that of RAU, Lyceum College had closed and there files that were transferred to RAU.

7.6 Under cross-examination, the applicant representative took issue with the witness calling herself a senior state accountant whereas she only has a grade 12 school leaving qualification. The witness indicated that she was appointed to the position due to her experience within the department. It was suggested to the witness that she misrepresented herself when she referred to herself as a senior state accountant. The witness was adamant that her rank in terms of Persal is that of a senior state accountant. On a question whether she regards herself as an auditor or bookkeeper or forensic investigator, the witness indicated that she was an investigator. The witness indicated that during the applicant’s disciplinary hearing, the applicant did not ask any questions, however the presiding officer asked her questions. As to how the name of Emaguqeni Primary School appeared on the investigation report, the witness indicated that the applicant’s file was held at the district office. The file stated that she was teaching at that school whereas this information was not correct. It was suggested to the witness that at Emaqugeni there was an educator with initials BJ who had the same surname as the applicant and this educator resigned. It was suggested that the person the witness interviewed was BJ Zikhali in that she never interviewed the applicant. However, in response, the witness indicated that when the applicant was interviewed she did not dispute that the certificate in the respondent’s position was a copy of her original certificate. It was also suggested to the witness that at the applicant’s disciplinary hearing she was in possession of the original certificate. The witness on a question whether she was claiming that the applicant registered but did not pass her examination, she responded that she is not saying that. It was suggested to the witness that many people who buy certificates do not register. The response given by the witness was that in many instances, they do register but there are unable to complete qualification they then buy the certificate.

8. Mr George Moroasui testified under oath to the following effect. He is employed by the South African Council of Educators (SACE) as the manager legal affairs. He is also an attorney by profession. As it relates to registration procedures in 2014, an educator seeking to register would have to complete a SACE registration form, produce a certified copy of the candidates ID book and a certified copy of the candidates matriculation certificate (Std 10), certified copy of qualifications, proof of payment of registration fee in the amount of R200.00 and should the application be for a renewal proof of payment in the amount of R50.00. Subsequent thereafter changes were made in 2018 as relates to registration procedures. In addition to SACE registration form, certified copy of a candidate ID book and certified copy of the candidates matriculation certificate (Std 10), certified copy of qualification and proof of payment they required addition documentation, the candidate’s academic record, police clearance certificate and a completion of the form that is submitted to the Department of Justice in order to ascertain whether a candidate is not on the sex offenders register. They do not verify qualification unless the qualifications are questionable.

APPLICANT’S EVIDENCE

9. The applicant (Maureen Bonisiwe Zikhali) testified under oath to the following effect.
9.1 She started her employment with the respondent on 1 March 1994 as an educator. She started at Mbodla Primary School and worked there until 1999. When she commenced employment she only had a Standard 10. From Mbodla Primary School she went to Fizaminiqbeko Combined School. She started improving her qualifications in 1998 where she registered with Lyceum College for a Junior Primary Diploma. She completed her Diploma studies in 2002 when she completed her Diploma she received a confirmation letter from Lyceum College. This confirmation letter was dated 20 February 2003 and was signed by LA Henderson the Project leader: Certification. Terms of the confirmation letter, the letter was addressed to “to whom it may concern” and certifies that Bonisiwe Maureen Zikhali, ID 650513 0668082 complied with all the requirements for the Certification in Education (M +3) (Junior Primary). Her diploma that was awarded to her by Rand Afrikaans University certifies that she had successfully completed module three (M +3) of the course in Junior Primary Education covering the following subjects, English, English 3, Mathematics, Educational 3, natural science 4 and Bible Education. As confirmed by the Diploma, she passed Education 3 and Natural Science 4 with distinctions. The diploma in question dated 30 October 2002 contained her student number as well as a diploma number. The Diploma was signed by the Dean: Faculty of Education and the Registrar (Academic).

9.2 She is a qualified educator and Lyceum College was amalgamated by the former RAU. She is registered with SACE since 2003.

9.3 As it relates to her procedural challenge, she received a notification to attend her disciplinary hearing on 12 or 13 November 2014. She was given 3 working days’ notice of her disciplinary hearing. The chairperson of her disciplinary hearing was Mr Zitha and the initiator was Mr Zulu. According to the charge sheet she was teaching at Emaguqeni Primary School. She never taught at that school and she never submitted false qualifications. According to the notification informing her of her disciplinary hearing, the notification specifically provided that a fellow employee or representative of a recognised union may represent her at the hearing. A legal representative may also represent if the presiding officer directs. Due to short notice, she was unable to arrange a representative. She informed the presiding officer of this and he indicated that the hearing would proceed even if she was not represented. She disagreed with this and pleaded with him to postpone the disciplinary hearing. In terms of the notification, it is specifically provided that the Department would provide an interpreter if circumstances warranted it. She needed an interpreter and there was no interpreter provided.

9.4 She told the presiding officer at her disciplinary hearing that she is not working at Emaguqeni Primary School and that she submitted her qualifications in 2003 whereas a charge refers to her submitting her qualifications in 2006. She indicated to presiding officer that the notice in question was not meant for her. She also informed the presiding officer that she had original certificates in her position unfortunately, they refused to allow her to hand them in. She was told that the outcome decision would be issued to her within five days and she only received the correspondence notifying her of her dismissal on 27 January 2015. The notification of the dismissal was handed over to the Principal of her school. During the disciplinary hearing the initiator, Mr Zulu did not ask her any questions and that the presiding officer, Mr Zwane did not say anything. She was not afforded an opportunity to ask questions at her disciplinary hearing.

9.5 After she was issued with a letter of dismissal she was called by the police from John Ross Police Station. Mr Buthelezi, the investigating officer of a criminal case opened against her contacted her. She went to the police station as summoned. Mr Mngomezulu who was also accused of submitting false qualifications was also at the police station. Mr Buthelezi enquired from her where they had enrolled and she informed him that she had enrolled at Lyceum College. Mr Buthelezi then requested the contact details of Lyceum College and she gave him the contact details of Euni Sebabo . Apparently according to Mr Buthelezi, Eunis Sebabo responded to him and informed him that the qualifications were authentic. She appealed the matter and Mr Mngomezulu considering the decision not to charge them criminally in that they were exonerated by the police was allowed to return back to school and as far as she is aware he is still employed and therefore he was not dismissed. However, she attempted to return to school and the deputy principal, Thandeka Tembe chased her away. She told her that the criminal charges had been withdrawn. She was told to go home and wait for a letter from Pietermaritzburg. She never received a letter calling her back to school. She then had to get an attorney to assist her in that the respondent was refusing to reinstate her. An appeal was lodged to the MEC in Pietermaritzburg. Her attorney, Mr Khumalo who had subsequently passed away but before he passed away lodged an appeal on her behalf on 20 September 2019. Mr Moto refused to accept her appeal in that it was late.

9.6 Under cross-examination, the applicant indicated that she lodged her appeal on 23 November 2015. She confirmed that she received her dismissal sanction in January 2015 and that her salary was stopped on 15 January 2015. She confirms that an employee has five days to appeal and that she lodged her appeal on 29 January 2015. She was asked as to the whereabouts of her academic record and indicated that due to the closure of the institution she cannot obtain it. When asked after writing her examination what informed her that she had passed, her response was that her diploma informed her that she had passed.

9.7 Under re-examination, the applicant was of the view that the respondent had mistaken her for another educator with the same surname but with different initials. On the respondent wanting to see her academic record, her response was that the charges against her was that she allegedly submitted false certificate and there was no mention made of an academic record. She reiterated that up to date, the respondent refused to allow her to submit the original diploma for verification. She was of the view that the respondent should have made enquiries with RAU and not with Lyceum College.

9.7 On a question by the Commissioner, the applicant indicated that she taught in the foundation phase, she taught Zulu, Mathematics and English. Natural Science is not subject taught at the school. She obtained her Diploma in September 2003. On a question whether she requested an interpreter, the applicant indicated that she requested an interpreter and that request was refused. As to the whereabouts of her academic record, the applicant indicated that she was never sent or given an academic record.

ANALYSIS OF EVIDENCE AND ARGUMENT

10. Section 192 of the LRA provides that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. If the existence of the dismissal is established, the employer must prove that the dismissal is fair. Accordingly, due to the fact that the existence of the dismissal was not in dispute, the onus was on the respondent to prove that the dismissal was both procedurally and substantively fair.

11. I must first determine on a balance of probabilities whether the applicant committed the misconduct for which she was dismissed. The charge that gave rise to the dismissal is that she allegedly submitted a false Diploma and this resulted in an adjustment to the applicant’s salary and as a consequence thereto she defrauded the respondent in the amount in excess of R344 255.00. The respondent has as part of their bundle produced a spreadsheet with information obtained from persal that shows the applicant’s salary progression. It goes without saying that should it be found that the Diploma (qualification) is fraudulent then by implication the respondent had been defrauded due to remuneration paid to the applicant after submitting a Diploma. Therefore, the issue to be determined is whether the applicant completed her qualification and whether the Diploma submitted was a forgery.

12. Eksteen AJP in the matter of National Employer's General Insurance v Jagers 1984 (4) SA 437 (ECD) at 440D-F held as follows:

"In deciding whether that evidence is true or not the Court will weigh up and test the plaintiff's allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with the consideration of the probabilities of the case and, if the balance of probabilities favours the plaintiff, then the Court will accept his version as being probably true".

13. The applicant denies committing the misconduct for which she was dismissed.

14. The applicant representative has correctly so referred me to Section 3(4) of the Law of Evidence Amendment Act 45 of 1998 with reference to the statement submitted by Ms Sebabo that claims therein that according to their records of Lyceum College, the applicant never completed her qualification. Ms Sebabo refused to testify although subpoenaed to testify. At first it was reported that she was experiencing technical difficulties, however she was telephonically contacted, I overheard her as well as the applicant’s representative telling the respondent’s representative that she had already submitted a statement and therefore she could not understand why she had to testify. Ms Sebabo told the respondent’s representative that she did not want to get involved and therefore she was not going to testify. The fact that Ms Sebabo did not testify, her affidavit amounts to hearsay evidence. The applicant’s representative referred me to the judgement of Exxaro Coal Ltd v Chipana and Others (LAC) where the appeal court held that is it is accepted that Section 3 essentially means that that if there is no agreement to receive hearsay evidence it is to be excluded unless the interest of justice requires its admission. I have decided to admit the hearsay evidence in that as provided for in terms of the Constitution the interest of a child is paramount, the reason for the respondent’s investigation was that in certain schools the pass rate was low and the competency of educators from those identified schools were questioned. This resulted in a verification process in order to ensure that educators in those schools are qualified to teach. Although I admitted the statement I shall place a value to the statement. The statement only records that according to the records of Lyceum College the applicant never qualified. Is the records of Lyceum College up to date and reliable? Therefore, I accept that the evidence must be treated with caution.

15. The applicant testified that she completed the qualification (Diploma) and has produced a confirmation letter dated 20 February 2003, signed by LA Henderson the Project leader: Certification. In terms of the of the confirmation letter, the letter was addressed to “to whom it may concern” and certifies that the applicant complied with all the requirements for the Certification in Education (M +3) (Junior Primary). The respondent argued that the confirmation letter was not on Lyceum College’s official letter head. What does concern me is that the confirmation letter refers to the applicant complying with the requirements for a Certificate in Education (M +3) (Junior Primary) This letter I view with circumspect in that the allegedly qualification awarded to the applicant was a Diploma in Education and not a Certificate in Education. From my experience confirmation letters are addressed to the student concerned. The only documentation provided by the applicant is attendance registers showing her attendance in writing exams as specific schools that were used as examination centres. The applicant did not in support of her case produce some type of examination results to support her claim that her qualification are legitimate. The turning point in the applicant’s case, unfortunately not favourable, is when the respondent firstly asked the applicant to produce her academic record, her response was that she was never dismissed for a false academic record. However, when I asked her whether she has an academic record, her response was that she was never issued with an academic record. As testified by Mr Moroasui from SACE as from 2018 a candidate will not be able obtain registration with them without producing an academic record. An academic record is a transcript details of all subjects’ studies and results, per academic year and or semester. If you have graduated the academic record will also include the date your qualifications was conferred. Therefore, should you not complete your qualification you will not be issued with an academic record. During the arbitration, I specifically mentioned to the applicant’s representative, like SACE, you would not be able to gain membership of a professional body such as the Law Society or now the Legal Practice Council without an academic record. As a legal practitioner myself, I speak from experience. The applicant’s diploma was issued by Rand Afrikaans University as it was then known. This is a reputable institution of learning and not a fly by night institution and they would have issued the applicant with an academic record had she completed her qualification.

16. The disciplinary report shows that the applicant in her disciplinary hearing did produce some results that showed in 2002 she did not pass English 1 and in April she failed English with a mark of 29 and in October she again failed obtaining a mark of 46. The Presiding Officer from the report took issue and raised the fact and questioned how the applicant could have completed her diploma. The Diploma shows the applicant passing English 3 whereas the Presiding Officer reasoned to pass English 3 you must have passed English 1 or 2. The Presiding Office correctly so raised an interesting point and suggested that the applicant could not have completed her diploma. He raised therein an interesting point that one cannot ignore. The disciplinary report records as it relates to mitigating facts, the applicant apologized for her actions and asked for a chance to study for her qualifications. After a sanction of dismissal was issued, under the heading confirmation of sanction, the Presiding Office specifically indicates under the heading advice that should the applicant choose to appeal she could only appeal against the sanction in that she finally admitted guilt. I now understand why the applicant did not produce her examinations results in the arbitration.

17. Considering the inherent probabilities I am persuaded for reasons as expressed above, that I do not believe that the applicant completed her qualification in the form of a Diploma in Education and therefore the probabilities favours only one concussion, the Diploma submitted by the applicant was falsified or forged. I therefore find that she committed the misconduct for which she was dismissed.


18. As it relates to the applicant’s procedural challenge, her version is uncontested in that the respondent led no evidence to prove that the dismissal was procedurally fair. The applicant testified that she was unrepresented at her disciplinary hearing and she requested a postponement in order to arrange representation. The charges that the applicant was facing were serious charges that had far reaching consequences for the applicant. The respondent should have afforded the applicant an opportunity to arrange representation. The applicant when her disciplinary hearing proceeded requested an interpreter. That is a right she has and the Presiding Officer should have postponed the disciplinary hearing in order for an interpreter to be arranged. The applicant claimed that she was not afforded an opportunity to ask witnesses questions. I therefore conclude that the dismissal of the applicant was procedurally unfair.

19. In terms of Section 194(1) of the LRA the compensation awarded to an employee whose dismissal is found to be unfair either because the Employer did not prove that the reason for the dismissal was a fair reason relating to the employee’s conduct or capacity or the employer’s operational requirements or the employer did not follow fair procedure, or both, must be just and equitable in all circumstances, but not be more than the equivalent of 12 months’ remuneration calculated at the employee’s rate of remuneration on the date of dismissal.


20. In the matter of Johnson & Johnson (Pty) Ltd v CWIU (1999) 20 ILJ 89 (LAC) held at paragraph 41 [also reported at [1998] 12 BLLR 1209 (LAC) – Ed] that the compensation for the wrong in failing to give effect to an Employee’s right to a fair procedure is not based on patrimonial or actual loss. It is in the nature of a solatium for the loss of the right, and is punitive to the extent that an Employer (who breached the right) must pay a fixed penalty for causing that loss. In the normal cause a legal wrong done by one person to another deserves some form of redress. The party who committed the wrong is usually not allowed to benefit from external factors which might have ameliorated the wrong in some way or another.

21. I consider two (2) months compensation to be just and equitable under the circumstances


AWARD

22. The dismissal of the applicant, Bonisiwe Maureen Zikhali is found to be procedurally unfair and substantively fair.

23. The respondent, Department of Education: Kwa-Zulu Natal is ordered to pay the applicant compensation in the amount of R 39 902,10 (R19951.05 x 2) to be paid by no later than 30 November 2022.


Name: Jonathan Gruss
(ELRC) Arbitrator