ELRC150-22/23WC

Commissioner: Lanthis Taylor
Case No.: ELRC150-22/23WC
Date of Award: 15 February 2023

In the Arbitration between:

SADTU obo N Goniwe
(Union/Applicant)

and

DEPARTMENT OF EDUCATION – WESTERN CAPE
(Respondent)

Union / Applicant’s representative: Dr. Jefferey Sigudla & Ms Goniwe
Telephone:
Telefax:
Email:

First Respondent’s representative: Mr. Frederick Scholtz (WCED Representative
Telephone:
Telefax:
Email:

PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. An arbitration hearing was convened under the auspices of the Education Labour Relations Council over the period 18 August 2022 to 20 January 2023 by way of the virtual platform, Zoom, as well as in face-to-face hearings at the Metro East District in Parow and at North Square Cape Town. A number of challenges were experienced with ill health, loadshedding and witness availability.
2. The applicant, Ms. Ntombizandile Goniwe was represented by Dr. Jefferey Sigudla, an official of SADTU. Mr. Frederick Scholtz represented the respondent, the Department of Education – Western Cape. The proceedings were conducted in English and were digitally recorded.

THE ISSUE IN DISPUTE
3. I must determine whether the applicant’s dismissal was in all respects unfair.

BACKGROUND TO THE ISSUE
4. A pre-arbitration meeting was concluded between the parties and the minutes set the tone for the issues that are in dispute and the issues that are common cause. It is common cause that the applicant was employed as a Principal at Bloekombos Secondary School since 1 October 2018. She earned a gross annual remuneration of R 587 763.00 at the time of her dismissal. The applicant had a disciplinary hearing which extended over the period 21 October 2021 and ended on 18 February 2022. Ms. Goniwe was charged with five charges. She initially pleaded guilty to only charge 3 but on 18 February 2022, she changed her plea from not guilty to guilty on charges 1, 2, 4 and 5 after evidence was led by the Senior State Accountant. The presiding officer accepted that she had changed her plea of own free will without duress and ultimately decided to impose a sanction of dismissal. Ms. Goniwe appealed the decision to the Member of the Executive Council. The appeal was dismissed on 12 May 2022. The matter was then referred to the ELRC..

5. The applicant indicated that her dismissal was both procedurally and substantively unfair and she seeks retrospective reinstatement as a remedy.

6. At the start of proceedings on 23 September 2022, despite the parties having concluded a pre-arbitration minute, the issues were further narrowed due to challenges of loadshedding and photocopying of documents. The applicant’s contention regarding the procedural challenges was that a postponement request had not been granted by the presiding officer, the Circuit Manager shared a surname with the presiding officer and he should not have been allowed to continue as there might be an appearance of bias. In respect of the substantive fairness, Ms. Goniwe accepted that she had pleaded guilty to all the charges. Her view was that the sanction imposed was not appropriate as her guilt had been precipitated by the Department’s actions. In light of Ms. Goniwe confirming and accepting that she had pleaded guilty to all the charges, Mr. Scholtz indicated that there would not be a need for the respondent to call one of its main witnesses. He however reserved his right to do so if needed.

SUMMARY OF THE EVIDENCE & ARGUMENTS:
5. Both parties presented bundles of documents in support of their versions. The respondent called two witnesses, while the applicant called six witnesses, a number of whom were subpoenaed to come to testify. I am required by the LRA to provide brief reasons to substantiate my findings and determinations in this dispute. As such despite considering all the submissions presented, I will only deal with what I believe is relevant and what will relate to the core issues in dispute.

OPENING STATEMENTS
6. The respondent bore the burden of proof and as such commenced with presenting its version. Mr. Scholtz stated that the applicant’s dismissal was procedurally and substantively fair. The respondent would present the presiding officer as a witness to explain his role and decisions. The Circuit Manager, who is now the District Director would also testify to the trust relationship. Dismissal was the only sanction that could be imposed by the presiding officer.

7. The applicant’s representative stated the Employment of Educators Act indicates how an educator can be sanctioned and that the presiding officer did not follow the Act. As such the sanction was inappropriate. The applicant was charged with financial mismanagement. The SGB handles the finances. Most of the charges related to payments being made without the authorization of two persons. The SGB was illegally constituted and the person appointed as treasurer, was not supposed to be the treasurer. This was brought to the attention of the Circuit Manager. The presiding officer was supposed to take note of this when presenting the sanction. The applicant would be presenting documents to show that the SGB was asked to step down and that the so-called teacher (acting as treasurer) is not a teacher.

THE RESPONDENT’S CASE
8. The respondent’s first witness, Jacobus Williams testified under oath that he had presided over the applicant’s internal hearing. He outlined his experience as a presiding officer and indicated that he had been duly appointed as a presiding officer by the respondent. Williams testified that at the outset of the hearing he explained the rules and principles of the process to all the parties. He then ascertained from the accused employee whether all the rights have been afforded to him or her. He then proceeded to hear the submissions and used the relevant policies, the appropriate framework and what was presented to him as a means to make a fair determination.
9. Williams stated that the applicant’s averment to him sharing a surname with the circuit manager being a display of bias, is unfounded. She has a double-barreled surname and he does not know her at all. He did notice the surname but there is no familial relationship. He stated that if he knew her, he would have informed the parties. In relation to the applicant’s averment of a procedural defect because he did not grant a postponement, Williams stated that when the hearing was set to continue on 1 March 2022, he was made aware that a teacher that was associated with Bloekombos Secondary School had been shot and killed on either that morning or the day prior. He received an email and a call from Dr. Sigudla in this regard. He granted a postponement of 14 days from 1 to 15 March 2022.

10. On 8 March 2022, he received a further request for postponement. The funeral of the deceased teacher was to take place on 12 March 2022 and he had already granted a postponement until 15 March 2022. He decided to not grant a further postponement as he believed that the three days beyond the funeral was sufficient time for the matter to continue. When the matter reconvened on 15 March 2022, there were no objections raised by any party in relation to his decision to not grant a further postponement. The applicant also did not say anything to him. Williams confirmed that the applicant had changed her plea from not guilty to guilty and that this was relayed to him by Sigudla. Accordingly, he found her guilty and proceeded to determine an appropriate sanction after hearing the employer’s aggravation and the employee’s mitigation. This was done in writing. Prior to this, the circuit manager, Ms. Meyer-Williams came to testify in aggravation.

11. Mr. Williams explained how he arrived at the sanction of dismissal. He further explained that the mandate from the Department was dismissal as relayed by Mr. Scholtz and also that Ms. Meyer-Williams had testified at the hearing that the only remedy would be to end the working relationship with the applicant permanently. Mr. Williams stated that Sigudla had argued for a lesser sanction and had stated that it was incumbent on the circuit manager to ensure that no maladministration or mismanagement of school funds takes place. It was further argued that the circuit manager is to ensure that the school had a functional Senior Management Team (SMT). Williams stated that the qualifications of teachers at the school was raised during the internal hearing but this was unrelated to the allegations levelled against the applicant. He stated that he considered case law, the testimony of witnesses and the applicant’s plea of guilty on all accounts before deciding that dismissal was an appropriate sanction. He also considered that the applicant had received a final written warning and a fine (albeit that the plea bargain that she had entered into is silent as to the reasons therefore). Williams remained steadfast that the sanction of dismissal was the correct sanction.
12. During cross examination, Williams confirmed that there was no familial relationship between himself and Cherie Meyer-Williams. He stated that he granted a postponement on the basis of the death of the educator. There were no further compelling reasons submitted for him to consider granting a further postponement. The correspondence was that the funeral was on 12 March 2022 and he had already granted a postponement until 15 March 2022. He further stated that if he had noticed that the applicant could not continue on the day of the hearing, he would not have continued with the hearing. The applicant did not say anything about being exhausted.

13. Williams confirmed that he had considered all the evidence presented to him and as the applicant was ultimately responsible and accountable, he came to the decision that dismissal was the appropriate sanction. This was in line with Section 18(3)(i) and 18(5) of the Employment of Educators Act 76 of 1998. The applicant had pleaded guilty to financial misconduct which in his view had a nexus of dishonesty attached to it.

14. Williams confirmed that he had spoken to the applicant about her age and how many years she still had to work but denied that his comment regarding the applicant’s age was a biased comment. He further confirmed that this interaction was during a break and that this was a long time before the applicant had changed her plea to guilty on all counts.

15. The respondent’s second witness, Ms. Cherie Meyer-Williams testified under oath that she is the District Director of Metropole South since 1 October 2022. She was previously the circuit manager and had held that position for three years from 2019 to 2022 and had taken over the role from Dr. Henk Punt. She stated that the role of the circuit manager is to ensure that the principal delivers quality teaching and learning. The circuit manager also offers support and guidance with school governance. The circuit manager communicates with principals via Whatsapp, emails and quarterly principal meetings. The District Director has regular school visits and has to see twenty one public schools and ten independent schools on a monthly basis.

16. Meyer-Williams testified that the applicant had entered into a plea bargain where she had received a final written warning and the payment of a fine relating to mismanagement of finances at the school. This occurred in October 2020. In February 2022, the applicant pleaded guilty to five charges of financial misconduct which shows that the applicant cannot manage school finances and also speaks to her competencies in respect of the Basic Finance Management Act. She testified that a circuit manager needs to be able to trust and believe in a principal to manage public funds. This is a serious responsibility with financial management being a core duty of the principal. She stated that she could not trust the applicant in the position of principal as an amount of R3 to R4 million had been paid into the school. Money went missing, was not reported and there was no accountability. She explained how she had assisted the applicant by meeting with her and the chairperson of the SGB. Corporate compliance officers also provided guidance. Despite this the school became a high-risk school because the finances had been called into question, monies were not banked and this was only brought to the attention of the Department in February 2020. The results for the school were affected.

17. The principal is accountable as the principal signs off on documents including the marks. The allegations against her involved public funds and affected the lives of the children. Meyer-Williams testified that the applicant had personal problems with the SGB. Eric Magodla of management and governance, Zukiswa Cwayi, the Deputy Chief Education Specialist and she went to mediate and guide the SGB and the applicant. She stated that a SGB meeting cannot be without the presence of the principal and by walking out of the meeting, the applicant had declared the meeting null and void. The applicant would not compromise with the SGB. She reiterated that she could not continue a working relationship with the applicant.

18. Meyer-Williams confirmed that her maiden surname was Meyer and that there was no familial or other relationship between herself and the presiding officer who shared her married surname, Williams. The first time that she had met the presiding officer was when she arrived to testify in aggravation at the applicant’s hearing. She confirmed that she had given the applicant the support and assistance by arranging meetings at the District office and training at the school. The applicant and the SGB could not work together amicably. When the SGB wanted to do things in a certain manner, the applicant would not agree to their way of doing things. Meyer-Williams explained the composition of the SGB which consists of parents, teacher representatives, non-teaching staff, Student Representative Council learners and the principal.

19. She stated that the teacher and non-teacher representatives have to be associated with the school as employees, whether permanent or not. She explained further that the parents are categorized as biological parents, adoptive parents, and where the parents have passed on, guardianship papers of learners at the school needs to be provided for SGB representatives. The applicant had raised issues about the legitimacy of the SGB with management and it was found that some parent SGB members may have been ineligible to serve on the SGB. The Director of Management had intervened to mediate the conflict between the applicant and the SGB and also to clarify the legitimacy issues. This happened during the applicant’s tenure as principal.

20. During cross examination, Meyer-Williams confirmed that it was brought to the Management’s attention that Zukeka Jacobs did not have a child at the school and as such she should not have been part of the SGB. When this was relayed to the management, this was the first time that it was stated that she had a relationship with a parent who had a child at the school. In response to the question regarding a teacher by name of Sulelo, Meyer-Williams stated that he is eligible to serve if elected. It was put to her that he is not a qualified teacher and her response was that he was appointed as a specialist teacher and HR had confirmed his appointment.

21. Meyer-Williams confirmed that the applicant had been given support and guidance and that the Metropole East District provided training and workshops regarding finances. The applicant had attended financial management workshops at least twice. She further confirmed that a principal cannot leave a SGB meeting and if the principal is unhappy with anything in the meeting, should request that the minutes reflect the unhappiness and show the relevant laws. She stated that the principal has a duty to ensure the legitimacy of the SGB. The principal is the accounting officer and has to put measures in place to engage the members if there is ineligibility of a person to serve on the SGB. If this is the case, a by-election should take place. She stated further that if the principal cannot mediate with the SGB then the principal is to contact the Circuit Manager who will in turn contact the Head of Management and Governance to give guidance to the SGB and the principal. This is what was done. Meyer-Williams confirmed that monies were deposited late and the applicant entered a plea bargain accepting a final written warning. She confirmed that the trust relationship had broken down and had emanated out of the history of the applicant not being able to manage the school’s finances. The respondent closed its case.

APPLICANT’S CASE:
22. The applicant, Ntombizandile Victoria Goniwe testified under oath that when she started at Bloemkombos High School, there were two deputy principals who were managing the finances. She was not accepted by the SGB when she was appointed. There were a few issues that she had discussed with the educators. This included drinking at school, sexual harassment and corporal punishment. When she raised these issues, she became unpopular. Teacher representatives resigned and she did not get much support from the district. She had asked Meyer-Williams for information and assistance when in 2020 during COVID, when a classroom was contaminated, the teacher representatives wanted the whole school cleaned whereas the Department only allowed certain areas to be cleaned. This caused a commotion with the teacher representatives telling teachers not to go to class.

23. She stated that there were illegal occupants around the school that came and took water and electricity from the property. She addressed this with the teachers and the SGB went to the community but the community protested around the school telling her that it is not her land, electricity or water. She took leave and when she came back she called Meyer-Williams who addressed the local residents committee. Early during 2021, the SGB led by Sulelo and Plaatjies had the NGO, that was helping the learners with science, be removed from the school which left the school without help for maths and science. When she tried to address the teachers for using vulgar language, she received no cooperation from teacher representatives.

24. Goniwe stated that a teacher, Mr. Duna, was gunned down and she felt uncomfortable at the school. She had not received much information when she was appointed as principal. The acting principal introduced her as principal but she was not introduced to the assets or policies by the SGB. She only saw the Circuit Manager much later. Goniwe stated that she had a working relationship with the circuit manager and when there was chaos between the SGB and herself she contacted her telephonically because parents had burnt the ballot papers when they were not elected. In that instance the district office appointed an electoral officer for the second round of elections. She did not know the qualifications of the parents or whether they were guardians of children at the school. When she reported this to Meyer-Williams, a meeting was called. Only the mending of relationships and not the illegality of the SGB members was discussed.

25. Goniwe testified that she did not know David Mathe but he came to sort out the computers at the school. When she became principal, she saw him being paid R 2 000.00 per month. Upon discovering this she carried on doing so in a chaotic school where there had been no handover to her. She stated that she had never seen a section 38A application PAM document which had to be completed by the SGB and the principal for additional work done with Saturday classes. When she was appointed, she did not have any teacher profiles and when she attempted to allocate teachers she found that 70% of them were not qualified to teach certain subjects. A circular came around indicating that teachers are to teach what they are qualified for. One person did not have any teaching qualification. She informed Meyer Williams about this and was told that he is a specialist who had been employed by the department. She checked SACE and found that he had received a provisional accreditation but that his application had expired. SACE stated that he should not be in a classroom.

26. During cross examination, she indicated that she had not been forced to plead guilty to the allegations levelled against her. However, she indicated that she was not thinking straight as she had a death threat made against her. Goniwe confirmed that her representative had submitted mitigation and that the department had submitted aggravation but stated that these were not sent to her. She did not see the charges that were levelled against her as being serious as they did not fall within section 17 offences of the Employment of Educators’ Act. Her version is that she did not benefit from the allegations and was paid for her time on the Saturdays. The learners benefitted from this.

27. Her view was that the money that was paid to her was a transport allowance. She was not aware of S38A forms and only became aware of this when Granville Grove presented a report to the whole SGB. She tried to follow the recommendation but the SGB had an agenda. She confirmed that even after the workshop with Grove, she still did not get written approval for S38A payments. She stated that she did not accept responsibility for all the deposits not being made as COVID made it difficult. Regarding payments to David Mathe, she stated that she just continued making payments that had been made since 2014.

28. Goniwe stated that if there had been a proper handover she would not be in the position that she is. The circuit manager indicated that she could not manage the school finances because the circuit manager, Meyer-Williams has personal issues with her because she reported Meyer- Williams to the director for not visiting the school. Her view is that despite testifying that they are not related, nothing proves that the presiding officer, Mr. Williams and Meyer-Williams are not related. She stated that she did not receive any financial training.

29. The applicant subpoenaed Lelethu Lolwana to testify on her behalf. He testified that he is the biological father of Msingizana Natasha. He stated that his daughter was attending Silikamva High School in Hout Bay and had left Bloekombos High mid-year 2021. He stated that he was involved in the SGB at Bloekombos High School when his daughter came into grade 8 in 2020. He had come from the Eastern Cape and couldn’t find a school for his daughter. His ex-fiancé, Zukeka Jacobs, the current SGB chairperson, was invited by a teacher, Mr. Sulelo to become part of the SGB. She agreed and later in that year of 2020 a number of meetings took place at his house. Issues around the schools governance were discussed and he got to know the various issues at the school. The following year when it came to SGB elections, he started attending meetings and a number of parents were standing together. The issues discussed were around maladministration by the principal, the ineffectiveness of the principal and that she needed to be removed by the established SGB and be held accountable. His ex-fiancé became the chairperson and Sulelo was the treasurer. The ex-fiancé was appointed on the basis of her being the guardian to Msingizana Natasha.
30. Lolwana stated that after his daughter had left the school he was still in contact with Sulelo. Sulelo’s son lived with him for a month and he would take the boy to school while he’s ex-fiancé would fetch him after school. He submitted an affidavit to the department or the principal when he realised that he had been lied to by Sulelo who was furthering his own ambitions. He explained that ballot papers were burnt when the cabal realised that they did not have the numbers to win the election. He was part of the group who had burnt the ballot papers and the strategy was to disrupt and re-run the election process. After rioting and burning the ballot papers, the preferred candidates were elected. During all of this, they had a confrontation with Mr. Duma, a teacher. Sulelo was elected but it was ascertained that he was not a qualified teacher. He has a music diploma.

31. Lolwana stated that his daughter was not performing at the school and he moved her from the school mid 2021. He stated that he and his ex-fiancé were involved with the SGB until September 2021. She carried on with the SGB when he left for the Eastern Cape. During cross examination, he confirmed that his ex-fiancé acted as guardian on behalf of his child. He stated that his own sources revealed that Sulelo was unqualified but he could not reveal these sources. He could not give any answer about the relevance of this in relation to the principal. He accepted that the Department of Education would ‘vet’ any employee before appointing the person. He confirmed that Sulelo is still teaching and is still the treasurer of the SGB at the school. His relationship with Sulelo was soured when he found out that Sulelo was sleeping with his now ex-fiancé. He discovered this in December 2021. She had moved out in July 2021 and he had written his affidavit in January 2022.

32. The applicant subpoenaed Devendra Rampersad who is the current curator principal of Bloekombos High School. He testified under oath that Msingizana Natasha had left the school before he took up the curator post on 6 June 2022. He understood Natasha to be the daughter of the chairlady of the SGB. He became aware of this because the Circuit Manager was investigating the legitimacy of the SGB and parents had to provide proof. He stated that the circuit manager had invited parents but only Linda Phito had turned up. The others did not turn up and in his view this was defiance. He was uncertain about what Meyer-Williams did to verify those that had not turned up. The same SGB was still in place and to his knowledge, no letters were issued to them. Sulelo and Buso are the teacher representatives on the SGB. He stated that he did not have any information regarding Sulelo’s qualifications but indicated that the respondent would ‘vet’ a person prior to appointment. He confirmed that the Department could employ educators without teaching qualifications for their skillset.

33. During cross examination, Rampersad confirmed that Sulelo has been the acting HOD for Creative Arts since beginning of 2022 and that there were no issues with him. He further stated that Sulelo’s C.V. stated that he has been at the school since 2009 and that he did not have any reason to doubt his qualifications. Furthermore, the PAM provisions allowed for specialised educators and that this applied to Sulelo.

34. The next witness that was subpoenaed, Linda Phito testified under oath that he is the father of Zelu Phito, a grade 8 learner at Bloekombos Secondary School. He is also a community activist and is still a part of the SGB. He became aware that there were potentially parents who did not have children at the school when the Circuit Manager called them and notified them of several cases being lodged at the district office. Parents were requested to bring documents to prove legitimacy. He stated that he was the only biological parent on the SGB. Others were classified as Parent “C” being guardians of children. He confirmed that the people elected were “C” parents.

35. Phito testified to the ballot papers being burnt by the community when SGB elections were taking place. Goniwe was not there and the acting principal was in her place. The police was called and the principal was advised to lodge a case and inform the Respondent. Two weeks later the elections were redone. He stated that he found out that Sulelo does not have qualifications to teach. This emanated from an ordinary SGB meeting where there was a complaint from learners. When Sulelo was addressed by Goniwe about his qualifications, he stated that he will get what he wants and will do anything to get it. He stated that the community is raising grievances about Sulelo and wants to close the school because of the SGB and Sulelo. The community wanted the SGB disbanded. Sulelo had been called to three meetings in the hall and the meetings were seeking the removal of Goniwe because she was not performing.

36. During cross examination, he stated that he was not aware of the allegations against Goniwe. He stated that he assumed that Sulelo was not qualified as he did not present his qualifications. His SACE registration had expired on 12 February 2021. He was aware that Sulelo was the HOD and that Rampersad was happy with him.

37. The applicant subpoenaed George Moroasui, the Manager Legal Affairs or discipline ethics at SACE. He testifed that Sulelo was registered with the council under a conditional registration which expired on the 12th of February 2021. He confirmed that an educator gets registered to teach. In this instance it related to a teaching a particular subject or trade. Sulelo was registered to teach creative arts for grade 8-9. When SACE registration expires, it should be renewed in order for the person to stay at the school or in the profession. Conditional registration is limited to a particular school. If a person wants to change schools he or she would need a letter from the new school.

38. Moroasui testified that if a SACE registration is not renewed and an extension is not granted, a principal would be held accountable and SACE will investigate why there is an unregistered person at the school if it is brought to its attention. The principal could face removal from the school or be fined.

39. During cross examination, it was put to Moroasui, that there were deductions for SACE made against Sulelo’s salary as recent as 16 April 2022 and that he was still employed at the school. He confirmed that Sulelo’s SACE registration expired but was never terminated. This was not brought to the attention of the respondent but SACE was investigating a complaint since October 2022. He stated that questions in this regard would be asked of Sulelo and the principal. Sulelo’s only issue was to renew his SACE registration or vacate the position.

40. The next witness subpoenaed William Jeffery Stephanus Jantjies testified under oath that he is the Director of institutional Management and Governance. His role encompasses policy development, capacitation of district officials, safety and management of governance at schools. He explained what qualifies a person to be a member of an SGB and elaborated on the same structure of parent members as Meyer-Williams had. He confirmed that if a child leaves the school, the “parent” continuing on the SGB cannot exercise any rights associated with SGB membership. He stated that it is the principal’s responsibility to deregister a child who has left the school. The Department would not be aware of any SGB vacancies unless informed by the principal.

41. He stated that he had assisted with conflict resolution at Bloekombos High School. There was a complaint about the chairlady who allegedly did not have a child at the school but was romantically involved with someone who had a child at the school. For this reason she was on the SGB. When the relationship ended, she should not have been allowed to be on the SGB any longer. It was the principal’s duty to direct the SGB as the principal acts on behalf of the Head of Department in the department. He stated that he could not recall that his office had submitted a letter to the school for the SGB to step down.

42. During cross examination, he stated that he met with the school people to establish some peace within the school and among the SGB. Goniwe and Meyer-Williams were present. The objectives were not completed and when he was to meet with Goniwe again, he was told she was no longer at the school for issues relating to finances.

43. The final witness subpoenaed by the applicant, Crystal Myburgh, testified under oath that she is the HR practitioner responsible for Recruitment and Selection in the Metro East District. She explained circulars 26/2019 and 0036/2022. The former related to evaluation of qualifications and the latter related to the appointment of unqualified educators. She stated that there were exceptions to the latter given that individuals have certain areas of expertise and can be appointed on the subject matter. In relation to Sulelo, she stated that he is permanently employed by the Department. He was initially employed on probation but his SACE registration had expired. She explained that a probationary appointment is one that needs confirmation of registration with SACE. She was not aware if the SACE registration had been presented as this function fell within the Services Benefits Division. Her role was to facilitate the appointment while Service Benefits are to ensure that entire conditions are met. She did not see why Sulelo could not serve on any structures. He was appointed as an educator. The principal is responsible for ensuring that he teaches only what he was appointed to teach.

44. During cross examination she confirmed that once the appointment had been made, the recruitment and selection division is no longer involved. The burden then shifts to Service Benefits who would deal with SACE registration and the like. She confirmed that Sulelo was appointed on “recognition of educational qualification value” “(REQV13) and that he could be appointed permanently based on his qualification. She confirmed that he was appointed on probation due to outstanding issues such as SACE registration. She would not know if the issues were addressed as it fell within the scope of Service Benefits.

45. Both parties submitted closing arguments in writing on the agreed date which I have considered and which will form a part of the overall award.

ANALYSIS OF THE EVIDENCE AND ARGUMENTS:
46. I do not deem it necessary to regurgitate the closing arguments in the same vein as I have encapsulated the testimonies presented above. I will deal with the evidence as I see fit in relation to the overall dispute. The respondent bears the burden of proving that the applicant’s dismissal is both procedurally and substantively fair.

47. The procedural challenges relate to the applicant’s claim that a postponement request had not been granted by the presiding officer; the Circuit Manager sharing a surname with the presiding officer and that he should not have continued as there could have been an appearance of bias. In respect of the substantive fairness, Ms. Goniwe accepted that she had pleaded guilty to all the charges. Her view was that the sanction imposed was not appropriate.

48. From a procedural perspective, regarding the issue of the postponement that was not granted, it was testified by the presiding officer that he had indeed granted Goniwe a postponement of the matter from 1 to 15 March 2022 due to the death of an educator at the school and upon being informed of the same by the applicant’s representative. His unchallenged version was that he did not grant a further postponement which was requested on 8 March 2022 as the educator’s funeral was on 12 March 2022 and he believed that the three days beyond this was sufficient time for the applicant to continue with the hearing. His further unchallenged testimony is that when the matter reconvened on 15 March 2022, there were no objections raised by any party in relation to his decision to not grant a further postponement.

49. I have perused the bundle of documents presented into evidence including the outcome report of the presiding officer. The contents were not disputed and nowhere within the document is there any mention of any objection being raised about the matter not being postponed. Given the comprehensive nature of the outcome report, it is my view that the presiding officer would most definitely have documented such a challenge and his response thereto. The issue of the sharing of surnames was only raised within the LRA7.11 application to the ELRC and not before the presiding officer for him to consider. Furthermore, the applicant’s second procedural challenge was also not raised during the hearing. If it had, it is my opinion that the presiding officer would have dealt with the issue and made a decision in that regard too. I have considered the applicant’s procedural challenges and find that in both instances the challenges are unfounded. The decision to not grant an extension of the postponement that had already been granted does not fall within the ambit of procedural fairness as outlined in Schedule 8 of the Labour Relations Act. In respect of the surname “Williams”, both the presiding officer, Jacobus Williams and the circuit manager, Cherie Meyer-Williams testified under oath that there is no familial relationship between them and that their first encounter had been at the applicant’s disciplinary enquiry. I have no reason to doubt their submissions under oath. Accordingly, the applicant’s procedural challenge stands to fail. As such I find the applicant’s dismissal to be procedurally fair.

50. The applicant initially pleaded not guilty to certain allegations but later changed her plea to guilty on all accounts. This was relayed to the presiding officer by the applicant’s representative and also confirmed before me in the arbitration process. The presiding officer accepted the revised plea. This was not disputed in the arbitration process. I have set out in extreme detail the evidence led by both parties. The nub of the applicant’s claim is the legitimacy of the SGB and more specifically, Sulelo. However, the golden thread that emanates from this dispute is that the applicant does not accept any responsibility for her not fulfilling her role as principal. It was testified to, and is generally accepted that, the principal is the Departmental representative at the school level who maintains the vision and direction of the Department and is to ensure that directives, the policies and the law are adhered to. It was testified that the principal is the accounting officer for the school appointed by the Department of Education. If one has to look at the broad definition of “Accounting Officer”, this would be a person who is accountable to an authority (Department of Education) and who is to protect the interest of the authority. Part of this accountability would be the trust factor associated with such accountability.

51. The applicant was entrusted to oversee, among others, the financial interests of the school and the Department of Education. The applicant pleaded guilty to the allegations of financial mismanagement on all accounts levelled at her. This was a choice that she exercised freely at the internal hearing. The matter came before me as a hearing de novo with the applicant confirming her guilty plea. She is however claiming that the sanction of dismissal is inappropriate. What is interesting is that the applicant’s representative sees fit to refer to instances that were not presented to me in this de novo hearing. In his closing argument the applicant’s representative refers to issues around a particular witness, (Mr. Cordon) who did not appear before me. This witness did not appear on the basis that it was agreed by the parties that it was unnecessary for him to do so given that the applicant had pleaded guilty at the internal hearing. The same was confirmed in a pre-arb minute and when the issues in the matter were narrowed even further during one of the load shedding sessions.

52. The gist of the applicant’s argument is that she did not receive the support needed from the SGB and the circuit manager. The respondent presented two witnesses, Mr. Jacobus Williams, the presiding officer, and Ms. Cherie Meyer-Williams, the circuit manager. Mr. Jacobus Williams testified to his role at the internal hearing and how he had come to the conclusion of dismissal being appropriate. Ms. Cherie Meyer-Williams testified to the applicant’s previous disciplinary record for offences of a similar nature, the support provided to the applicant and the breach of the trust relationship between the Department of Education and the applicant.

53. When one unpacks the substantive fairness of the applicant’s dismissal, it is evident that a rule exists in relation to the management of school finances, the applicant breached the rule (she pleaded guilty to doing so on own accord); the rule is known or could reasonably be expected to be known by someone of the applicant’s level and consistent application of the rule was not challenged.

54. The applicant’s contention is that her dismissal was inappropriate. I am not of the same view. As previously indicated, the applicant is laying all sense of blame at the door of others rather than herself. All witnesses who testified on behalf of the applicant relayed their testimony in relation to the ineligibility of the SGB and of Sulelo, his qualifications, his relationship with the ex-fiancé of one of the witnesses and that he is ineligible to teach despite his appointment. While it is as such that his SACE registration may have lapsed, there is no doubt that this is easily remedied as was testified to by George Moroasui.

55. In my view, the stance of the ineligibility and illegality of the SGB on which the applicant and her representative relies on in presenting their case, is unsustainable. The applicant, as the manager and driver of the processes at the school, was accountable for the overall management of the school, its finances and the financial management of school funds. This is the role that was entrusted to her upon her appointment as a principal. She pleaded guilty to not fulfilling this role. It is incumbent on such a person to be able to work well with an appointed SGB. Jantjies’ unchallenged testimony was that it is a principal’s duty to direct the SGB. The principal acts on behalf of the Head of Department in the department. The applicant was not able to fulfil this obligation.

56. I have considered the totality of circumstances in this matter including the principles outlined in Sidumo & another v Rustenburg Platinum Mine Ltd & Others (2007) 28 ILJ 2405 (CC). The applicant’s representative stated that dismissal was inappropriate as the offences did not fall within the ambit of section 17 of the Employment of Educators Act which calls for a dismissal in particular instances. The chairperson of the enquiry quantified why he had imposed a sanction of dismissal. I concur with his view. The applicant was not charged with any offences under section 17 of the Employment of Educators’ Act. She was charged in accordance with section 18 and various subsections of section 18 were listed.

57. Section 18 (3) (i) makes provision for dismissal, if the nature or extent of the misconduct warrants dismissal. The applicant had previously been charged for the similar offences of financial misconduct to which she opted for a plea bargain deal with the respondent. In terms of this plea agreement, the applicant was issued with a final written warning as well as a fine. From the evidence before me it is evident that the previous sanction did not have any net or desired effect on the applicant given that she was once again charged with financial misconduct and in this instance pleaded guilty to all the allegations. I am of the view that the applicant’s dismissal is warranted in relation to the misconduct. I thus cannot agree that the applicant’s dismissal was inappropriate as a sanction and as such I find the applicant’s dismissal to be substantively fair.

58. The union subpoenaed six witnesses in order to sustain its view of Sulelo not being a teacher and therefore not being allowed to be a part of the SGB. The subpoenaed witnesses did not assist in the promotion of this view as it was testified that as an appointed specialist teacher, he could well be part of the SGB, if elected. The only issue relates to his SACE registration which the subpoenaed witness, George Moroasui testified was easily remedied.

59. Section 54.1.4 of Part C of the ELRC constitution makes provision for a cost order to be made against a party where that party or the person who represented such party acted in a frivolous and vexatious manner by –
“Proceeding with or defending the dispute in arbitration proceedings” or
“in its conduct during the arbitration proceedings”. Dr. Sigudla can consider himself fortunate in this instance that I have decided not to issue a cost order against the union for the manner in which it pursued this dispute despite the applicant’s guilty plea.

60. Thus, in consideration of all of the above, I make the following award:

AWARD:
61. The respondent has discharged the burden of proving that the applicant’s dismissal was procedurally and substantively fair. The applicant is not entitled to any relief.

L M Taylor
Commissioner