ELRC444-22/23EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT BUNDY PARK, KING WILLIAMS TOWN

Case No. ELRC 444-22/23 EC

In the matter between

SADTU obo MISILE NGQOBA Applicant

and

EASTERN CAPE DEPARTMENT OF EDUCATION Respondent

PANELIST: YOLISA NDZUTA

LAST HEARD: 3 APRIL 2023

DATE OF AWARD: 09 May 2023


SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) - unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee.

SUMMARY: Whether the Respondent perpetrated an unfair labour practice relating to demotion when they was held guilty of transgressing several sections of the Employment of Educators Ac t76 of 1998 and the South Africa Schools Act



ARBITRATION AWARD



PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. The matter was set down as an arbitration to be heard before me initially on the 18th of November 2022 and after several hearings was concluded on the 3rd of April 2023. During the proceedings, the Applicant, Mr Misile Ngqoba was represented by Ms Cordelia of SADTU while the Respondent, Eastern Cape Department of Education was represented by Mr Sandile Nyalambisa.

2. The parties confirmed receipt of the notice of set down and there were no pre-liminary issues raised.


THE ISSUE IN DISPUTE

3. I am required to determine whether an unfair labour practice was committed by the Respondent relating to the demotion of the Applicant after he was found guilty at the disciplinary proceedings. The applicant directed that he would be challenging the guilty finding and the sanction imposed- the demotion-.

THE BACKGROUND TO THE DISPUTE

4. In these proceedings the Applicant referred an unfair labour practice relating to demotion when he was demoted as the principal of St Matthew’s High School

5. The Applicant claimed that he was employed and served as the principal of St Matthews since from the since December 2016 until October 2022 (when he was demoted).

6. The Applicant further claimed that his demotion was unfair as he was advised during the disciplinary hearing that he would receive a final written warning as that was the sanction agreed upon with the employer representative in exchange for a guilty plea towards one of the charges.

7. The Applicant also claimed that the Respondent failed to comply with the provisions of the Employment of Educators Act, regulations pertaining to disciplinary hearings.

8. The Respondent opposed the above and argued that although there was a recommended sanction, the HOD enjoyed authority in that it could impose the appropriate sanction once it was satisfied of the sanction justifiable given the offence committed.



SURVEY OF EVIDENCE AND ARGUMENT

9. I shall hereinunder summarise the testimony (viva voce evidence) that was presented during the arbitration proceedings.

10. The applicant (Mr Misile Ngqoba) called three witnesses to testify under oath, that being himself together with Skeyi Wakhile and Thozama Lingani while the respondent called Mr S Jilingana and Mr Garth Jacobs as its witnesses.

11. Mr Ngoba testified as follows:


11.1 He had served as the principal of St Matthew’s High School since December 2016 until October 2022 (when he was demoted);

11.2 Whilst he was serving as the principal he had been suspended.

11.3 He recalls that his suspension was for a very elongated period in that the disciplinary proceedings pertaining same suspension initially commenced on or about 28 September 2018. During the disciplinary hearing he was advised that the worst sanction that could be imposed on him was a final written warning and he was shocked to have been demoted.

11.4 He was not aware of any investigation being conducted pertaining to the charges preferred to him prior to the disciplinary hearing.

11.5 While he was serving as the principal, he had academic duties and administrative duties which included being responsible for boarding school learners and staff.

11.6 Owing to his administrative duties relating to boarding school learners and staff, he had to have access to petty cash that was higher than normal. Ms Sibange (the secretary) would issue cheques which some would be considered as petty cash although some were issued as cash cheques when required for other services. All cash withdrawn from the bank per a cash or petty cash cheque was stored in a safe.

11.7 He could attest to a conspiracy that was created to have him removed from St Matthew’s High School as such he referred to the disciplinary proceedings and subsequent sanction was a result of the conspiracy.

11.8 The monies that he was charged for as a loan was actual an advance payment from the school development fund. He testified that this school development fund was created by the School Governing Body (herein referred to as the SGB) per donations as means of creating a fund to support the needs of the school. The fund was established before his tenure as principal.

11.9 Mr Skweyiya was one of several teachers who benefited from the school development fund as he received payments of which some were SGB employees while some were employees of the Department of Education.

11.10 The budget for the school was always separated from the budget of the school development fund.

11.11 The funds raised for the SDF were kept in the same bank account as the funds deposited from the Department of Education. The school’s bank account was audited on an annual basis.

11.12 He was not properly advised about the consequences of his pleading during the disciplinary hearing as such he wanted to refute and challenge the plea of guilty that was tendered at the disciplinary hearing.

11.13 The SGB had its own policy regarding the use of funds of the school development fund which was different from the department’s petty cash policy.

12. Mr Ngqoba was subject to cross-examination and the following was learned therefrom:

12.1 Mr Ngqoba was initially suspended on the 28th of September 2018 for specific allegations and another suspension was preferred (or instituted) on other allegations.

12.2 He was called by the official who had executed the investigation however because he (Mr Ngqoba) was unavailable at the times proposed by same official, he had not been able to contribute to the investigation.

12.3 He had been trained adequately about his duties and the applicable legislation more specifically the South African Schools Act. The latter training included the duties of the principal within the SGB and same principal’s role regarding school finances.

12.4 He did not understand the charges preferred against him until same charges were explained to him at the disciplinary hearing.

12.5 When referred to the affidavit of Mr Skeyi wherein same affidavit referred to the ‘advanced money’ as a loan, he (Mr Ngqoba) disputed same. When asked when Mr Skeyi paid the money back, he did not know and it was put to him that the money was only paid back in 2021.

12.6 When asked about the status of Mr Skeyi during the period when money was loaned to him, Mr Ngqoba placed on record that Mr Skeyi was a temporary educator who was being incorporated into the system as a permanent employee.

12.7 When referred to the various cheques and the description captured, Mr Ngqoba advised that it was Ms Sibange who had placed same description. It was put to him that same could constitute misrepresentation and falsifying documentation to which he (Mr Ngoba) responded that it cannot be as he is certain Mr Skeyi was a SGB employee at the time of receiving the first cheque furthermore it was money from the School Development Fund and not money from the department.

12.8 He was questioned on various sections of the South African Schools Act read with the Employment of Educators Act to which he responded that he may not know the specific sections and what each contains however he is certain that he did not transgress any statute in his actions.

12.9 It was put to him whether the policy or decision of the SGB had greater authority over the policy or statute of the department and he responded that it is that of the department. He went on to explain that there are times wherein the decision of the SGB is implemented though because of the urgency applicable and stated that the South African Schools Act permitted this.

12.10 When asked to explain the process of obtaining petty cash or cash cheque, he testified that the school’s practice included the use of a requisition form which would be sent to the school management team and SGB for approval then same would be send to the principal and secretary to populate a cheque for withdrawal.

12.11 When asked whether above practice was for all cheques issued he confirmed and emphasized that all cheques were to carry the same description as per the requisition form, he further reiterated that any reference to cheques and any evidence thereto must consider that the investigation was concluded without all the information present. There apparently was a file containing cheques and requisition forms for the period of January 2019 to June 2019 that was missing during the investigation.

12.12 When asked whether the missing file was reported, he testified that he had not.


13. The applicant’s second witness was Mr Whakile Skeyi whose testimony can be summarised as follows:

13.1 He is appointed as a post level 1 educator. He has been working at St Matthew’s High School since 24 February 2011.

13.2 He is aware of the charges preferred against Mr Ngqoba which he was ultimately demoted for as such he understood the money as an advancement and not a loan. He refuted the content of his own affidavit that was enclosed in the employer’s bundle because he was directed to the identify the money as a loan and not an advancement.

13.3 The only reason he had requested the advancement from the school (and the applicant) because the department of education was delaying in settling his salary for three months. He had been advised that the school had a school development fund which could furnish financial aid to teachers and admin staff too.

13.4 He was not the only received an advancement from the school, on the first occasion he requested an advancement he was accompanying Mr Gqoboda and Ms Kakona who were also employed by the department of education.

13.5 He was advised that the school development fund was established by the SGB and same fund included the donations from donors too.

13.6 He received an advancement from the school on two occasions and had paid the money back.

13.7 He knew that the school issued cheques for administration and petty cash as such he was aware that the latter was permitted as long as it met the requirements of the applicable statutes.

14. The above witness was subjected to cross-examination and the following was learned therefrom:

14.1 Although he was employed as an educator by the department he had not referred a complaint or dispute regarding the delay in receiving salary.

14.2 The department of education does not regulate the payment of an advance on one’s salary when asked if such is permissible, he couldn’t respond save to place on record that the school had permitted the advance payments from the school development fund per its internal policy.

14.3 It was put to him that the policy was illegal in that it was not in compliance with the South African Schools Act and he couldn’t respond to that submission.

14.4 When referred to the cheques reflecting monies paid to him, he confirmed the amount however with regards to the description per cheque he disputed the description. When referred to section 37(3) of the South African Schools Act and that how the act of managing the school development fund in the same bank account as the bank account wherein departmental funds were stored was a transgression, he confirmed that the school had erred therein.

14.5 When asked whether the advancement constituted a replacement of one’s salary, he responded that in his case it was not as he was expected to reimburse the school.


15. The applicant’s final witness was Ms Thozama Lingani whose testimony can be summarised as follows:

15.1 She was employed as a post level 1 educator and a member of the St Matthew’s High School SGB.

15.2 She was unaware of the Applicant’s suspension until she noticed his absence upon the introduction of Ms Mancoko.

15.3 She was also unaware of the reason / purpose of the visit from the officials of the risk department of the employer.

15.4 She was asked to advise of the process of having a cheque issued which she explained as follows:

(i) Firstly the purpose of the cheque is placed in a requisition which must then be considered by the SMT. The requisition is signed by the secretary and the principal.
(ii) Once SMT has accepted and authorised the requisition, the SGB considers same.
(iii) Once the SGB has authorised the requisition then the cheque is drawn.

15.5 The petty cash of the school was issued in the same fashion as described herein above as such she emphasized that the petty cash would later be stored in the safe as it would need to be accessed for immediate use for ‘petty’ things.

15.6 The staff and educators who benefited from the school development fund were SGB appointed.

15.7 Mr. Skey received money from the school together with other educators however Mr. Skeyi was not a SGB educator.

16. The above witness was subjected to cross-examination and the following was learned therefrom:

16.1 The payment of money to staff from the school development fund was meant solely for those whom are appointed by the SGB.
16.2 The payment to department educators is only permitted once authorized by the SGB. With regards to Mr Skeyi, payment to him was discussed during a staff meeting. The latter payment was described as an advancement and not a loan. Mr Skeyi at the time of receiving the advancement was a temporary educator.

16.3 When referred to the investigation report (bundle “C”) she confirmed that the cheques to Mr. Skeyi were incorrectly described. When asked to explain the disjuncture between her evidence and the documentary evidence, she testified that Mr. Skeyi commenced his employment as an SGB employee who then was employed by the department into a temporary post who was later made permanent.

16.4 She was requested to furnish information to the investigation team which she furnished in assisting same investigation team. When it was put to her that there is a possibility of her having withheld information, she refuted same assertion and testified that she provided the information she had access to.

16.5 She (and the other SGB members) had no knowledge that they could have applied to have the funds raised for school development fund stored in a different bank account. When it was put to her that the SGB as a statutory body acted contrary to the directing legislation she stated that she had no idea that the SGB was acting in contradiction to any statute however confirmed that the SGB’s action cannot supersede statutory direction.


17. The respondent called three witnesses, one Mr Siyabonga Jiligana, Ms Sibange and Mr Garth Jacobs. The testimony of Mr Jiligana can summarized as follows:

17.1 He is an assistant director at the department within the Risk Department, he formed part of the investigation team which was sanctioned to probe the complaints of misuse of school funds at St Matthews High School.

17.2 At the time of conducting the investigation, the applicant was serving a suspension.

17.3 In conducting the investigation, he was furnished with several documents, the cheque-books and financial records of the school when the information was insufficient they conducted interviews and sought further information or clarity as to the missing information.

17.4 The applicant was invited to respond to the allegations and was requested to assist in the investigation however he did not avail himself.

17.5 No one was compelled to deposed to an affidavit nor was anyone directed on what to place in their affidavits and or statements.

17.6 Regardless of the reasons and whichever body that authorized the payment from the schools account, the payment of cash from the school’s account remains a transgression of the South African Schools Act. The principal of the school is responsible to guide the SGB in all school governance matters. Considering that the applicant was trained regarding the duties of his post, including the statutory requirements of same post, he played a role in the maladministration.

17.7 During the investigation, it was found that there was a file that could not be located, that being for the financial period of Jan to June 2017 which same disappearance was not reported as a theft or was never reported to the provincial department. The disappearance of the file ought to have been reported as it the information belongs to the state. The disappearance of the file called into question not only governance of the school but the accuracy of the financial reporting linked thereto.

17.8 The investigation is not the only time the department inspects a school’s financials however in this occasion obtaining all necessary information was critical nonetheless the investigation team had sufficient information to draw a conclusion.

17.9 The persistent cash transactions by the school were of grave concern for the department. The accounting officer of the school ought to have ensured that this practice is ceased as it is not acceptable and transgresses applicable statute.

18. The above witness’s testimony was subjected to cross-examination and the following was learned therefrom:

18.1 The first visit from risk to the school was on the 20th of November 2019 and the applicant was serving a suspension and another party was the accounting officer – Mr Nyangitsimbi during the investigation. Mr Nyangitsimbi was not charged because the period of assessment was subject to the applicant’s principalship.

18.2 During the investigation it was discovered that information was also deleted from SASAMS.


19. The respondent’s second witness was Mr Sibange who testified as follows:

19.1 She had been working at St Matthew’s High School since 2008 and at the time of the investigation and the applicant’s suspension she was the secretary with specific KPA and duties.

19.2 During the period of assessment she was one of the signatories to the school’s bank account.

19.3 The school did not have a finance policy or any written policy relating to the handling of the school’s money. When there was a requirement to procure services or there was a need that required use of school money, a meeting would be convened with the school’s procurement subcommittee. The latter would determine whether departmental funds or the funds of the school development fund would be used.

19.4 Her duties did not include creating a budget therefore she cannot testify to a budget\

19.5 The school development fund precedes her therefore upon her employment at the school, same school development fund was already in existence.

19.6 She was well aware of the investigation as such she assisted as she furnished information when requested to do so by the officials of the investigation.

19.7 When requested to issue a cheque, she would do so and then cash same cheque. She would then give the applicant the cash for dispersing or use as intended. There were times when receipts and proof would be returned however there were occasions wherein receipts wouldn’t be submitted after use of the cash. She ensured to advise the investigators of the latter.

19.8 The school insisted on cash and use of cash cheques because the closest ATM or bank was several hundred kilometres away.

19.9 During the investigation, the investigators were advised of the missing file which enclosed important information.

19.10 She was well aware of the money given to Mr Skeyi and to her recollection it was for a salary similar to the SGB employees. She is also aware that Mr Skeyi paid the amount back during the disciplinary hearings.

19.11 The applicant was known to store money from cashed cash cheques and petty cash cheques in the safe which was in his office.

20. The above witness was subjected to cross-examination and the following was learned therefrom:

20.1 She was aware of the statutory and departmental policy procedures to be followed for finance management of school funds. She knew that the accounting officer of school funds was the applicant (as the principal) and that she would be co-responsible due to her role.

20.2 She was present when Mr Skeyi and other employees were furnished with money per cash cheques however their payments were made per requisitions which would have been authorized by the SMT and the SGB.

20.3 She was operating under the belief that they were permitted to handle and manage the school funds as they did.


21. The respondent’s final witness was Mr Garth Jacobs who testified as follows:

21.1 He is the CES (chief examination specialist)- employee relations in the Sara Baartman region. He was also the presiding officer at the disciplinary hearing of the applicant.

21.2 As the presiding officer he impartially chaired the disciplinary hearing and in doing so he compiled a chairperson’s report which included the recommended sanction. The latter sanction was a mere recommendation subject to the HOD’s (provincial head of department) consideration as such same HOD could enforce a different sanction too.

21.3 In executing his function as the disciplinary hearing’s presiding officer he did on occasion have side caucuses with the separate parties to explain the proceedings when required. Correspondingly he considered the submissions in making a final decision.

21.4 The applicant did plead guilty to one charge and one charge was ultimately found lacking nonetheless two charges had overwhelming evidence against the applicant. He (the witness) considered the element of the charge, the submissions and the applicable law to determine whether each charge was successfully proven or not.

21.5 He chaired other disciplinary hearings which emanated from the investigation.

22. The above witness was subjected to cross-examination and the following was learned therefrom:

22.1 Although the applicant’s disciplinary hearing was schedule later than as directed by the Employment of Educators Act 76 of 1998 the reason thereof was that there was a backlog created by the COVID-19 epidemic and its regulations. Similarly the applicant eventually accepted the latter at the hearing.

22.2 The chairperson’s report and recommended sanction was submitted to the employer timeously. The HOD received same and therefrom the chairperson had not control over its dispersal (communication) to the applicant.

22.3 Regardless of how one describes the transaction related to furnishing departmental employees with money from the school’s account, same transactions is irregular and transgresses the premise of the South African Schools Act. Although the school had several petty cash cheques, the number of cash cheques for other transactions was alarming and there was evidence to that regard during the disciplinary hearing. The applicant could not excuse the transgression and how same transactions were permitted save to place the version that the actions were authorized by the SGB.

22.4 If the MEC was unhappy with the sanction, he would have instituted an appeal which same may have had the outcome of a different sanction after consideration of the relevant facts. As such although the applicant had instituted an appeal the MEC considered same with due consideration with the relevant officials which resulted in the appeal being ruled upon accordingly.

22.5 The applicant did not advise that he was a union official at disciplinary hearing as such section 4 of the Labour Relations Act was not evoked.

22.6 Procedural fairness was observed and the applicant was afforded an impartial disciplinary hearing.

23. Further to the above, the parties made written submissions which same were considered in the conclusion of these proceedings.


ANALYSIS OF THE EVIDENCE AND ARGUMENT

24. As stated above, the parties agreed to file written submissions which same enclosed arguments as stated above. I shall hereinunder study the testimony and the arguments (per the written submissions).

25. An analysis of evidence presented a conundrum in that same evidence of the applicant did not address the elements of the charges which were preferred against him save to present the defence of inconsistency of sanction, the argument of recommended sanction vis a vis imposed sanction and the defence of conspiracy.

26. At the epicentre of this application lies a dispute of the incidents that resulted in the action undertaken by the employer (the respondent) against the employee. Correspondingly we cannot avoid the burden carried by the applicant in such matter.


27. An application of the above test stands to nullify contradicting versions. What worsens the proceedings is the influx of unsubstantiated claims by the various witnesses that only achieved a further complication of the matter.

28. The applicant also argued and claimed that there was non-compliance by the respondent with statute however fails to explain the non-compliance in that was same non-compliance was merely not following the directive or regulation in the statute or whether same non-compliance was a direct and deliberate transgression. The applicant’s arguments pertaining to interpretation of the collective agreement fails. If we are to consider the principles of substantial compliance, then we are to refer to the SCA decision in Weenen Transitional Local Council v Van Dyk which considered the application and interpretation of delegated legislation. The court places that where there is an allegation of non-compliance with legislation by an authoritative party, said non-compliance must be clearly established (my interpretation).

29. The applicant further argues that the demotion was an unfair labour practice on account of the lengthy suspension coupled with what it considers noncompliance with the Disciplinary Code and Procedures for Educators.

30. The applicant therefore seeks to change the sanction imposed on the above basis. The applicant also argued that the sanction that was ultimately imposed was too harsh and ought to have been the same as recommended by the chairperson of the disciplinary hearing.

31. The respondent’s submissions were that the applicant was duly charged and disciplined for having transgressed a rule of the department.

32. The respondent argued that the applicant was demoted as an alternative to dismissal considering the gravity of the charges which he was successfully prosecuted for at the hearing.

33. I considered the submissions.


34. The applicant’s case was based on several defences including inconsistency and a conspiracy. The defence of conspiracy could not be established same applies to the defence of inconsistency. The applicant’s case was also that the demotion ought not be imposed as the chairperson’s recommended sanction ought to have been enforced rather than the demotion. In South African Revenue Services v CCMA and others the constitutional court addressed the question of whether an employer may change a chairperson’s sanction by considering same sanction under the purview of section 193 and 194 of the Labour Relations Act. The court found that the employer is permitted to change a chairperson’s sanction when it is reasonable to do so.

35. More important in this matter was the issue of accountability for the mismanagement of school funds and whether the use of funds in a manner that was transgressional to the applicable statutes and policy was excusable.

36. The testimony of the applicant and its witnesses did not address the issue maladministration of the school’s funds rather they sought to excuse the practice by introducing the school development funds (SDF). The latter testimony did not assist in the resolution of the matter in determining whether the applicant was guilty of the charge as preferred and whether the sanction imposed was fair.

37. The respondent’s witnesses addressed the core of the dispute in that their testimony addressed the substance of the charges and sanction imposed. The probability of the principal (the applicant) in failing in the proper management of the school and transgressing the statues (as per the charges preferred) was high. In Buthelezi v MEC - Department of Education KZN and Others (D640/17) [2021] ZALCD 80 (14 December 2021) the Honourable Moodley AJ considered an application for review wherein a commissioner’s finding was scrutinized on the basis of interpretation of evidence presented in a very similar matter. In considering the evidence in relation to the charges, the honourable judge ruled that the reasonableness of convictions and sanctions in relation to the charges must be considered on the evidence juxtaposed the defense presented and where same defense fails whilst the prosecution succeeds then the conviction and sanction imposed should follow and succeed. Correspondingly in the latter case, the dismissal of the principal was justified and upheld.

38. It is thus determinable that the considering the applicant’s role in the misadministration of the school’s funds, the applicant failed in his statutory duties.

39. In the regard of the above, I make the following award.

AWARD

40. The Applicant has failed to establish that an unfair labour practice was perpetrated against him.

41. The demotion of the applicant was justifies and thus stands.

Yolisa Ndzuta
Panelist: ELRC