ELRC186-22/23EC

Panelist: Clint Enslin
Case No.: ELRC186-22/23EC
Date of Award: 13 February 2023

In the ARBITRATION between:

NAPTOSA obo Monica Mbewana
(Union / Applicant)

and

Department of Education: Eastern Cape

(Respondent)

Applicant’s representative: Mr A Mhlontlo
Applicant’s address:

Telephone: 082 308 3940
Telefax:
Email mhlontloaaron@gmail.com / lablegec@naptosa.org.za

Respondent’s representative: Ms Z Nkomo
Respondent’s address:


Telephone: 082 592 7022
Telefax:
Email zukienkomo10@gmail.com

DETAILS OF HEARING AND REPRESENTATION

1. This dispute was scheduled for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 17 of the ELRC Constitution: ELRC Dispute Resolution Procedures. The hearing was held via Zoom (virtual) on 6 September, 11 October and 22 November 2022 as well as 23 January 2023 and the proceedings were electronically recorded.

2. The Applicant, Ms Monica Mbewana, was represented by Mr Aaron Mhlontlo, an official of NAPTOSA, a registered trade union. The Respondent, Department of Education – Eastern Cape was represented by Ms Zukiswa Nkomo, an Assistant Director: Labour Relations.

ISSUE TO BE DECIDED
3. Whether the disciplinary action instituted against the Applicant, by the Respondent, amounts to an Unfair Labour Practice as per Section 186(2)(b) of the LRA.
4. If so, determine appropriate relief.

BACKGROUND TO THE ISSUES

5. The following facts were agreed to between the parties as common cause and there existed no dispute of fact.

5.1 The Applicant started employment with the Respondent on 1 March 1995.
5.2 The Applicant has held the position of post level 4 Principal since 1 May 2017.
5.3 The Applicant earns R41 363.32 per month.
5.4 The Applicant was subjected to a disciplinary enquiry, where after she was found guilty of the charges contained on page 2 of A1.
5.5 As a result of being found guilty, a sanction of a fine in the amount of R15 000 was imposed.
5.6 The Applicant appealed the decision on 19 March 2022.
5.7 The Appeal was dismissed and the fine was implemented.

6. The Applicant handed in 2 bundles of documents which are referred to as “A1”and “A2”. The Respondent also handed in 2 bundles of documents referred to as “R1” and “R2”. Both parties submitted written closing arguments.

7. The matter was digitally recorded.

SURVEY OF EVIDENCE AND ARGUMENT

8. This award constitutes a brief summary of evidence, argument and my reasons for the award issued in
terms of Section 138 (7)(a), of the LRA, relevant to the dispute at hand and does not reflect all the
evidence and arguments heard and considered in deciding this matter.

Applicant’s case

Applicant’s evidence

9. The Applicant testified that as an experienced educator she was aware of the difference between a section 20 and a section 21 school. Section 21 of the South African Schools Act (“SASA”) outlined the functions and duties of the School Governing Body (‘SGB”), which inter alia included management of finances and the creation of posts. The school had approximately 492 learners in 2016, approximately 484 learners in 2017 and approximately 464 learners in 2018. They were allocated 8 educators in 2016 and 2017 and 14 educators in 2018.

10. They had a shortage of maths and science teachers during the period from 2016 until 2018. As principal, she addressed this with the SGB. The SGB took the matter to the parents and then created posts. During the AGM, parents decided to fund raise for these posts. It was further decided that they would contribute R1500 per educator per month for 12 months during 2016, R2000 per educator per month for 12 months during 2017 and R2500 per educator per month for 12 months during 2018.

11. She knew Mr Mkhize as the SGB had appointed him in an SGB post in 2016, to teach maths. He had proved himself whilst working there. Pages 24 and 25 of A1 was part of an SGB contract. It was signed by the Educator (Mr Mkhize), The Principal (Ms Mbewana) and the SGB Chair and it was effective from January to November 2017. Three such contracts were signed from 2016 until 2018. They had tried to get a fully qualified educator before appointing Mr Mkize, but were unsuccessful due to the low offer. She had reported the matter to the circuit manager and requested assistance in finding/appointing a maths educator. Both circuit managers she had reported to, during the period in question, had referred her to SASA and the SGB to take action as the Department could not employ.

12. Page 38 of A1 was the requirements for REQV from PAM. At B.1.2, the first 2 requirement were as follows:
• REQV 10 – Educational Value = Grade 12 or lower without a teachers’ qualification
• REQV 11 – Educational Value = Grade 8, 9, 10, or 11 plus a teacher’s qualification of at least two years relevant training.

13. Page 20 of A1 was part of Mr Mkhize’s CV. It confirmed that his last school attended was Gowozi High School and that his highest grade passed was Grade 11. In relation to page 38 of A1, Mr Mkize would fall under REQV 10. She had not employed Mr Mkihize, but it was rather the SGB that employed him. P1 of A2 confirmed that the circuit manager visited the school on a number of occasions during the the period, including 8 visits during 2017 and 2018 never said that Mr Mkhize’s employment should not be continued. Pages 10 to 26 of A2 was the Respondent’s Service Charter that was valid and signed off in 2016. Page 25 of A2, bullets 1 and 2, under the heading “Institutional Development Support & Governance” Read as follows:
• SGBs will receive empowerment training in finance, policy and compliance to strengthen governance at schools in the financial year.
• EDO’s (Educational development Officer) to visit schools in their circuits at least twice per quarter to monitor and support school governance by SMTs and Principals in the academic year.

14. She had not benefited financially form the appointment of Mr Mkize and in fact she sometimes had to fund him without being reimbursed.

15. She had only become aware of the allegation contained in charge 2 when she received the charge sheet. She was not aware of the situation set out in this charge prior to this. When she received the charge sheet, she was also not familiar with the name of the learner. Neither the educator nor learner had testified in her presence.

16. Mr Mkhize had been appointed at the school in approximately October/November 2016. After the AGM, in November, he signed a contract for 2017. When he arrived he was given a contract until the end of 2016. She initially learned of Mr Mkize when he dropped his CV with its attachments off by her. His ID, Grade 11 report and some qualifications were attached. She did not believe it was unacceptable to appoint an educator for a high school who did not have grade 12 because he was responsible for grade 8 and 9 maths. This would be REQV 10. Although the Departments systems did not allow for the appointment of an educator with REQV 10, Mr Mkhize was appointed by the SGB and as such he would not be on the system.

17. She confirmed that the signatures on various documents were those of Mr Mkize despite being questioned as to why the differed from his signature on his ID. She had not reported the issue contained in charge 2 as she had not been aware of it. She denied having submitted a report on this issue. She denied any knowledge of pages 11 and 14 of R2 despite it being put to her that she in fact signed pages 11, 12 and 14 of these documents. She denied that it was her signature on these documents. She denied that the document on page 14 of R2 was their logbook. The school stamp was kept by her and she, the Deputy Principal and clerk had access to it.

Respondent’s case

Mr Tholakele Mfoza

18. Mr Tholakele Mfoza testified that he was the ex-deputy principal at the Applicant’s school. He had been there as Deputy Principal since 7 November 2017. Mr Mkize was already there when he arrived so he did not know who had appointed him. SGB educators are normally appointed after an interview where the SGB is present and forms part of the panel. Parents paid the SGB educators. These funds were taken by the Principal and paid into the school account so that they could be paid at the end of each month. The school had one account. The normal process for SGB appointments was that the Principal would identify shortages and report this to the SGB. If the SGB agreed, they would do interviews and the panel would decide who was appointed. He could not say if this process had been followed with the appointment of Mr Mkhize as he was not there at the time. SGB educators were usually appointed on 6 to 12 month contracts, depending on the school. These contracts were sometimes renewed, depending on performance. Mr Mkize had taken the school to the CCMA when his contract ended.

19. He was aware of the issue of the relationship between an educator and a learner (charge 2) and at the time the Principal had wanted concrete evidence as they could not rely on hearsay. Some teachers had tried to get evidence. These teachers were called and questioned. The educator alleged to have had the relationship with the learner denied same until some teachers came with evidence. Ultimately, he admitted to same. All reports had been left with the Principal. He was not sure how the Department had found out about the matter. He confirmed that the meeting, as captured, on page 14 of R2, had been held and it was in this meeting that the said educator admitted to the relationship. This meeting had been lead by the Principal to establish the truth of the allegations. He had been present in this meeting.

20. The educator involved in the sexual relations issue was Mr Mpetshwa. Mr Mpetshwa was already at the school as voluntary/SGB educator when he arrived at the school. After this, a departmental post became available to which Mr Mpetshwa had been appointed. He had seen Mr Mpetshwa’s qualifications, which was a B.Ed degree (economics) from Walter Sisulu University. He was employed to teach economics for grades 10 to 12. He was not sure who the learner in charge 2 was until they had sat in the meeting to discuss same. He confirmed that the principal would preach in staff meetings about improper relationships.

21. He had key to the Principal’s office. He would only sign documents in her absence if they were critical and on her instruction or when he acted. He would sign such documents in his own name and PP. He had not noticed the sexual relationship at school until it came up in the meeting. The principal had said that she reported the matter, but they did not know when she had done so.

Mr Thobile Ngezana

22. Mr Ngezana testified that he was the chairperson of the SGB. He was part of the SGB when Mr Mkize arrived and he was still part of the SGB as its chairman. He had not been involved in Mr Mkhize’s appointment. He could not recall when he first became a member of the SGB, but believed it was in approximately 2014. He had been trained on the roles and responsibilities of an SGB. He agreed that one of the roles of the SGB was to create posts. During his time as chair, from 2015 until 2018, they had not done so. He knew Mr Mfoza (ex-deputy principal), but he only had a short period with him of about 4 months before his term as chairman ended. When it was put to him that this could not be correct as he was elected in 2015 and that his term ended in 2018, whilst Mr Mfoza arrived at the school in 2017, he stated that he had not made notes and could not recall anything during that period. During his time as SGB chairman he was one of the bank signatories. He recalled that he, during this period, had signed a number of cheques for SGB educators, including Mr Nkhize. They were paid because they were educators that helped at the school. He had never questioned the principal as to why Mr Mkhize was being paid. He also did not see anything wrong with paying him. The parents were also aware he was being paid. Parents would give the funds and they would then put the funds in the bank and pay these educators.

23. In terms of the creation of SGB posts, they were trained that when the need for such arises, they need to look at qualifications. They were not trained to check qualifications of those SGB educators who were already there. Although they were taught to sit down and establish the number of educators required, this had not happened. There were SGB posts done which were not in accordance with the constitution. The principal would introduce the educators and they would already be working, The SGB not know how they got into the positions.

ANALYSIS OF EVIDENCE AND ARGUMENT

24. Section 186(2) of the LRA states “Unfair Labour Practice means any unfair act or omission that arises between an employer and an employee involving –
(b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee”
Was the Applicant guilty of the charges brought against her?
Charge 1
25. The Applicant was charged with misconduct in terms of section 18(1)(b) of the Employment of Educators Act 76 of 1998 as amended: which inter alia reads as follows: “Willfully or negligently mismanages the finances of the state, a school or an adult learning centre.”, in that you employed an unqualified educator (Mr Mkhize) from November 2016 to 3 April 2018, which resulted in wasteful expenditure.

26. The Applicant testified that from 2016 to 2018 the school, at which she was the principal, had a shortage of maths and science teachers and that she had brought this to the attention of the SGB. The SGB discussed this with the parents and it was decided to fund raise for these posts. The SGB had appointed Mr Mkhiza in 2016, to teach maths. Page 24 and 25 of A1 was part of an SGB contract and was signed, inter alia, aby the Mr Mkhize. They tried to get fully qualified teachers, but could not due to the low offer. She reported the issue of a shortage of maths and science educators to the Department who confirmed they could not employ and that it should be addressed by the SGB.

27. One does not have to be a handwriting expert to see that the 3 purported signatures on pages 24 and 25 of A1, for SGB Educator, SGB Chairperson, and Principal are in fact not signatures at all. They are merely each of the said persons initials and surname written into the space allowed for their signatures. It is also clear that same was done by the person who filled out the rest of the contract. Even if I am wrong in this conclusion, which I do not believe I am, it is quite clear that the purported signature for Mr Mkize in the space provided therefore, on these pages, differs substantially from the signature found on his ID document. This in my view, supports my previous conclusion, which would mean that this contract was in fact not signed by either Mr Mkhize or the SGB Chairperson. At least not on these pages where it is claimed that they signed. They are from 2017, a time when Mr Ngezana was the chairman of the SGB. The lack of his signature on this document makes his version that they were effectively kept in the dark more probable.

28. In the Applicant, on her own version, testified that they could not get fully qualified teachers at the level of payment available. It is therefore, on her own version, clear that Mr Mkize was not fully qualified. She further confirmed that she learnt of him when he dropped his CV and its’ attachments off by her. She testified further that she reported the issue of lack of maths and science teachers to her superiors who indicated that the state could not employ and that she should address the matter with the SGB. This would be the correct way of dealing with a shortage in educators that could not be dealt with by the Department. The fact that they did so does not mean that they meant that such positions could be filled in contravention of requirements. As stated, the Applicant on her own version was aware that the Applicant was not fully qualified.

29. Annexure A.7 of PAM deals with the functions and responsibilities of a school principal. At paragraph 2.1 thereof it states that the aim of the job is: “To ensure that the school is managed satisfactorily and in compliance with the applicable legislation, regulations and personal administrative measures as prescribed.” At paragraph 3.6.1.1 thereof it confirms that one of the requirements/responsibilities of a principal is: ‘To serve on the governing body of the school and render all necessary assistance to the SGB in the performance of their functions in terms of SASA.” At paragraph 3.6.1.3 (a) thereof it confirms that a principal must (a) attend and participate in all meetings of the governing body and at (d) inform the governing body about policy and legislation. From this, in my view, the principal had duty to ensure that they complied with requirements of employing qualified educators. She had a duty to intervene and guide the SGB if in fact, as she claims, they were responsible for employment of a “not fully qualified educator”. It is not disputed that the funding for SGB teachers, including that of Mr Mkhize, was obtained from parent donations and that such funds were paid into the school account and that they were paid from this account. The fact that the SGB Chairperson may have signed cheques off for the payment of these educators does not, in my view, detract from the fact that as the principal of the school she should not have allowed, either herself or the SGB to appoint a ‘not fully qualified educator”. She furthermore should not have allowed/condoned the payment of such an educator from the schools account, no matter where these monies came from. At the very least, in my view, her actions amounted to negligence in this regard.

30. Even if she did not employ him directly herself, it does not detract from the points raised above. It is trite that “charges” in a disciplinary process are not likened to those in a criminal prosecution. To my mind, in this case, to argue that because she might not have directly employed him, as per the charge sheet, it should mean that she should be found not guilty, is not correct. If she did not employ him, she allowed him to be employed and did not prevent or report same, despite knowing that he was “not fully qualified”.

31. I accordingly believe that, on a balance of probability, the Applicant is guilty of charge 1.

Charge 2

32. The Applicant was charged with misconduct in terms of section 18(1)(f) of the Employment of Educators Act 76 of 1998 as amended: which inter alia reads as follows: “unjustifiably prejudices the administration , discipline or efficiency of the Department of Education, an office of the State or a school or adult learning centre .”, in that you failed to report an educator who was having a sexual relationship with a learner in your school whilst the matter unfolded before you around the 4th of September 2020 and educator affirmed of this unbecoming behaviour.

33. The Applicant’s defence to this charge is effectively that she did not report it as she was not aware of it until she received the charge. She could not report something she was not aware of. I believe that this defence, is to say the least, problematic in view of the evidence presented. Despite her denial of any knowledge of the issue, Mr Mfoza, testified that the meeting, as per page 14 of R2 was in fact held, that the allegation against the educator was admitted in this meeting, that he was present in this meeting and that not only was the Applicant present, but that she lead the meeting to establish the truth of the allegations. What would he stand to gain by lying about this issue? I do not believe that he would have reason to be dishonest in this regard. If the Applicant was in this meeting, which I believe she was, then her defence that she did not report the matter because she only became aware of it when she received the charge sheet, cannot be correct.

34. It should be noted that the signatures on page 14 of R2, as well as those on the school stamps on documentation and the letter on page 11 for the principal all appear to be the same. It would, in my view be improbable that her signature was being forged on all these documents. In the letter on page 11 of R2, which is purported to be report from the principal to the Circuit Manager, it sets out what allegedly took place in terms of the investigation meetings held in September 2020. The question is, what would someone gain by doing this letter and claiming it was done and sent by the principal? I cannot think of anything. Why would they mark her as present in a meeting and forge her signature confirming her presence in same? There were a number of other people marked as present in the meeting on page 14 of R2 and yet the Applicant called none of them to confirm/corroborate her version that she was not present at the said meeting or that such meeting did not take place at all. Surely, she could have done so if she in fact was not present as she claims. I also find it improbable that teachers would be aware of the situation and in fact try and get evidence of same and yet the principal would be blissfully unaware of the situation. I find it more probable that the Applicant was in fact aware of the situation, was part of the meeting contained on page 14 of R2, as confirmed by Mr Mfoza and indeed drafted and sent the report contained on page 11 of R2.

35. I accordingly believe that, on a balance of probability, the Applicant is guilty of charge 2

Was the Respondent entitled to impose the sanction of a fine in the amount of R15 000?

36. Despite the Applicant, during the narrowing of issues, claiming that she was not guilty of the charges and that if she was found that she was guilty, monies could in any event not be deducted, the second part of not being allowed to deduct the monies was not taken further. I believe wisely so given that section 18(3)(f) of the Employment of Educators Act 76 of 1998 confirms that a sanction of a fine not exceeding one months’ salary may be imposed as sanction, if an educator is found to have committed misconduct as per section 18(1) of the same Act. In this case, both the forms of misconduct fall within section 18(1) of the aforementioned Act, it is common cause that disciplinary proceedings were held prior to the deduction, as required and the fine imposed of R15 000 does not exceed the Applicant’s monthly salary of R41 363,32.

37. The Applicant has failed to prove, on a balance of probabilities that the Respondent has committed an Unfair Labour Practice against her, as alleged.

AWARD

38. The Applicant, Ms Monica Mbewana, has failed to prove that the Respondent, the Department of Education: Eastern Cape, has committed an Unfair Labour Practice against her, in relation to the disciplinary action taken against her.

39. The Applicant is not entitled to the relief she seeks.

Name: Clint Enslin
(ELRC) Arbitrator