ELRC545-22/23 EC

Case Number: ELRC545-22/23 EC
Panelists: Malusi Mbuli
Date of Award: 13 May 2023

In the ARBITRATION between


NAPTOSA obo H. B. MABHENGU
(Applicant)


And

DEPARTMENT OF EDUCATION – EASTERN CAPE
(Respondent)

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter came before the ELRC for arbitration on 12th of December 2022, 24th & 25th of January 2023, 13th & 14th March 2023 and the 21st of April 2023 under section 186 (2) (b) of the Labour Relations Act 66 of 1995 as amended in 2015.

2. The applicant Mrs. H. B. Mabhengu attended the hearing and was represented by Mr. Aaron Mhlontlo an official of the applicant’s trade union NAPTOSA.

3. The respondent Department of Education Eastern - Cape was also present at the hearing and was represented by Mr. S. Nyalambisa, an official of the respondent.

4. The matter proceeded on the said dates and was finalized on the 21st of April 2023 and the parties agreed to file their closing arguments not later than the 02nd of May 2023 and both parties did file their arguments.

ISSUE TO BE DECIDED

5. I am required to determine whether the suspension without pay for a month was fair and whether the respondent has committed an unfair labour practice by suspending the applicant for a month without pay, and if so I must determine the appropriate remedy in terms of section 193 and 194 of the Labour Relations Act 66 of 1995, as amended.

BACKGROUND TO THE ISSUE

6. The applicant was at the time of the disciplinary hearing employed by the respondent as a Circurt Manager and based at the respondents Bizana / Mbizana District. The applicant was given a sanction of 1 month suspension without pay by respondent after she was found guilty at the disciplinary hearing for the contravention of the Employment of Educators Act 76 of 1998, Schedule 2, Item 7 of Disciplinary Code and Procedure on the charges 1 & 3:

CHARGE 1

You contravened section 18 (1) (i) of the Employment of Educators Act 76 of 1998 as amended which inter alia reads: “perform poorly or inadequately for reasons either than incapacity” in that you failed to execute your responsibility as Circuit Manager in the process of appointment of the principal of Mpondombini SSS. particularly in the formation of legitimate panel which costed the department R167 176, 97.

CHARGE 3

You contravened section 18 (1) (a) of the Employment of Educators Act 76 of 1998as amended, which inter alia reads “fails to comply with or contravenes in this act or any other statute, regulation or legal obligation relating to Education and Employment relationship in that you overlooked the Eastern Cape Department of Education Recruitment and Selection Policy, Procedure Manual for Recruitment of Educators DOE – EC dated June 2019 and PAM Document B.5.

7. It is so unfortunate that even though the charges above are clear and simple, a lot of irrelevant issues were dealt with in this hearing including part of the charges for which the applicant was not found guilty. I will only deal with the issues relevant my finding and determination in this matter.

8. The outcome, i.e verdict and sanction issued by Mr. K.S. Dalasile on the 28th July 2022 is very clear.

EVIDENCE

9. The applicant’s representative led evidence of 7 witnesses and the evidence of these witnesses dealt mostly with procedural issues. I must state at this stage that I am not going to deal with all the evidence that was dealt with in the arbitration hearing but a brief summary.

10. The procedural aspect or procedural compliance in any event is not supposed to be used as a technicality even if the sanction is that of a dismissal.

11. The applicant was allowed opportunity to state her case and dispute the employer’s case in that disciplinary hearing. This is what is expected from the employer as guided in Avril Elizabeth Home for the Mentally Handicapped v/s Commission for Conciliation Mediation and Arbitration & others (2006) 27 ILJ 1644 (LC) where the court makes a point that the Act never expected or intended technical compliance with the procedural aspect of a dismissal dispute.

12. What is required is that an opportunity must be given by the employer to an employee to state his case in response to any allegations made against that employee, which need not be a formal enquiry, it means no more than that there should be dialogue and an opportunity for reflection before any decision is taken to dismiss.

13. This is what happened with the applicant’s dismissal, the applicant was called into a disciplinary hearing, given enough time to prepare their case, clear charges to be put to her as I have argued above, and given an opportunity to state their case and to dispute the employer’s case.

Summary of evidence led by the applicant.

14. In order to prove their case the applicant or applicants representative called the following witnesses, applicant Hazel Bukiwe Mabengu, Prudence Xoliswa Jili, Simnikiwe Mbanjwa, Nomthandazo Kepu, Khuthala Mzwabantu, Mbulelo Mpupu and Zoleka Khuzwayo

15. I have already said that a bulk of the evidence of these witnesses is irrelevant to the finding and appropriateness of the sanction in this matter.

16. It is common cause that the applicant was at the time of the hearing employed through the employment processes of the Department of Education – Eastern Cape and that she is responsible for recruitment processes and a resource person status / role in the recruitment of Principals or Principal positions in her Circuit.

17. The school in question Mpondombini falls under her Circuit and it was not disputed that the final decision as to the recommendation for appointment rests with the SGB as that was a promotion process. It is also common cause that the SGB was trained but it was disputed that the applicant played her part in making sure that when there was the said recruitment at Mpondombini SSS all processes and procedures were followed.

18. It is also disputed that the applicant is supposed to play an active role in making sure that the processes were followed. These witnesses also seem to rely on the fact that the District Director through the office of the Deputy Director for HR approved the panel after applying her mind which if it was not properly constituted, she would have disapproved it.

19. These witnesses say that the applicant was not the Circuit Manager and therefore not responsible to make sure that the processes were followed. That the applicant was correct in instructing or allowing the former principal of Mpondombini SSS to conduct by-elections.

20. That Mpondombini SSS was the only school left in the district that has not finalized employment processes as per the provincial management plan. All school principals’ were busy monitoring examinations as the Chief Invigilators which in 2020 had run late due to Covid - 19 school disruptions.

21. That no visitors were visitors are allowed to schools and departmental offices because of Covid - 19 and this was confirmed by the former Acting District Director, Mrs. Jili and the CES IDS&G who at this time was the Acting District Director, Mrs. Khuzwayo, an educator Panelist, Miss Kepu T. and an observer, Mr. Mbanjwa that the matter was discussed and resolved.

22. These witnesses believe it would have been better if the letter was withheld and another submission be made to the HOD to nullify the employment. The first letter from the lawyers was received in February and at that stage the employment documents were still with the office of the HOD and it would have been easy to redo the process at that stage.

23. It is the respondent that chose to follow another route instead of settlement which they found to be correct. The applicant had no role whatsoever in the settlement that the Department reached. These witnesses don’t dispute that the applicant was supposed to be disciplined respondent but seem to focus on procedures.

Summary of evidence led by the respondent.

24. The respondent called 2 witnesses Mr. Nkosinathi Aaron Magwaca and Mr. Kwezi Dalasile. Mr. Magwaca explained that he is employed by the respondent as CES – Employee Relations from 2021 in the District of Bizana.

25. He further explained that that the DES & Circuit Manager are the same and at the same level and he or Mrs. Mabhengu have never complained about being called Circuit Managers or performing the duties of Circuit Manager. She confirmed that Mrs. Mabengu was employed as a Circuit Manager at Circuit 4 also and one of her responsibilities was to support schools and SGBs in recruitment matters.

26. He explained in detail that Mrs. Mabhengu failed to perform or poorly performed or inadequately performed her duties in that she failed to execute her responsibility as Circuit Manager in the process of appointment of the principal of Mpondombini SSS particularly in the in the formation of a legitimate panel which cost the department R167 176, 97.

27. He reiterated that that Mrs. Mabhengus job was to assist in profiling, advertisement, training and guiding the SGBs in executing their role in the appointment of the Principal. He stated that the Circuit Manager does her work guided by the departmental policies and legislation and that Mr. Mabengu failed to make sure that the process was fair.

28. He explained the whole recruitment as known by everyone in terms of the Employment of Educators Act and PAM Document and specifically stated that Mrs. Mabengu failed to ensure that the electoral officer in this recruitment was a principal from another school. He states that these procedural irregularities were picked up when the process was contested. He averred that Mrs. Mabengu denied that she was responsible.

29. Mr. Dalasile confirmed the evidence of Mr. Magwaca and stated that the applicant was not remorseful and may have issued a sanction less than the one he issued if she was remorseful.

ANALYSIS OF EVIDENCE AND ARGUMENT

30. Section 185 of the Act provides:-
‘Every employee has the right not to be:
(a) Subjected to an Unfair Labour Practice.

31. The applicant’s representative argues that the employer has committed an unfair labour practice by issuing the applicant with a sanction of a suspension for a period of a moth without pay. What seems to be in dispute here is whether the applicant was a Circuit Manager and therefore responsible for the support and guidance of the SGBs in recruitment matters.

32. It is common cause that the applicant was at the time of the hearing employed through the employment processes of the Department of Education – Eastern Cape and that she is responsible for recruitment processes and a resource person status / role in the recruitment of Principals or Principal positions in her Circuit. The applicant’s representative seem to limit the role of the applicant to that of an observer and not responsible for making sure that the recruitment processes are observed.

33. This argument is rejected here together with the applicant’s denial that she was a Circuit Manager because the applicant was employed or placed by the Department in that district as a Circuit Manager and she has accepted and performed duties as such. Now when she has failed to perform her duties in terms of the respondent’s policies in relation to this school she is not a Circuit Manager. This is disingenuous and confirms the attitude of the employee who does not want to accept responsibility.

34. The school in question Mpondombini falls under her Circuit, Circuit 4 and it is not disputed that the final decision on the recommendation for appointment rests with the SGB as that was a promotion process. It is also common cause that the SGB was trained but it is disputed that the applicant played her part in making sure that when there was the said recruitment at Mpondombini SSS all processes and procedures were followed. As indicated above it was her responsibility to ensure that the recruitment is fair and the SGB is properly guided in the exercise of its duties.

35. The applicant’s argument that she is not supposed to play an active role in making sure that the processes were followed is rejected. Similarly the fact that that the District Director through the office of the Deputy Director for HR approved the panel after applying her mind and that if it was not properly constituted, she would have disapproved it does not take away the applicants responsibility as described above. The applicant was a Circuit Manager and therefore responsible to make sure that the processes were followed.

36. The fact that Mpondombini S.S.S. was the only school left in the district that has not finalized employment processes as per the provincial management plan and that all school principals were busy monitoring examinations as the Chief Invigilators which in 2020 a late due to Covid - 19 school disruptions is not accepted because this was not the time of the hard lock down and if another principal could conduct by elections it means a principal from a neighboring school could do too.

37. The argument that it would have been better if the letter was withheld and another submission be made to the HOD to nullify the employment is a sound and acceptable point to make but again does not take away the applicants responsibility. I must state as well that I also do not agree with the Departments settlement of this matter but again this is another issue and does not take away the applicants responsibility. The applicant’s witnesses correctly don’t dispute that the applicant was supposed to be disciplined by respondent but in the same vein the applicant says she was not responsible.

38. The respondents witnesses Mr. Nkosinathi Aaron Magwaca and Mr. Kwezi Dalasile explained that DES & Circuit Manager are the same and at the same level and he Mr. Magwaca and Mrs. Mabengu have never complained about being called Circuit Managers or performing the duties of Circuit Manager. Mr. Magwaca confirmed that Mrs. Mabengu was employed as a Circuit Manager at Circuit 4. This was not disputed, in addition to the fact that one of her responsibilities was to support schools and SGBs in recruitment matters.

39. They explained in detail that Mrs. Mabengu failed to perform or poorly performed or inadequately performed her duties in that she failed to execute her responsibility as Circuit Manager in the process of appointment of the principal of Mpondombini SSS particularly in the formation of a legitimate panel which cost the department R167 176, 97.

40. The issue here is not about this amount as the Chairperson Mr. K.S. Dalasile correctly moved away from this amount and issued a sanction that is fair in relation to the transgression for which the employee has been found guilty. I have already said that I do not agree with the said settlement but this is not the subject of this award but mentioned in the context of the fairness and correct application of legal principles and the prescripts by the Chairperson.

41. It is clear that Mrs. Mabengus job included the responsibility to assist in profiling, advertisement, training and guiding the SGBs in executing their role in the appointment of the Principal guided by the departmental policies and legislation and that Mrs. Mabengu failed to apply these policies.

42. She failed to uphold the Employment of Educators Act and PAM Document in particular failed to ensure that the electoral officer in this recruitment was a principal from another school. These prescripts are there for a reason. The applicant also failed to make sure that the replacement of the educator component of the panel was correctly handled and this was her responsibility.

43. These procedural irregularities were picked up when the process was contested. The applicant Mrs. Mabengu denied that she was responsible. I agree with the respondent’s representative that the process of recruitment and selection is a highly regulated process and this is done to prevent any underhand activities associated with promotion posts generally as there has also been allegations of sale of posts. This is why the role of the applicant in the position and responsibility she has to discharge is important.

44. The applicant’s representative has referred me to a case of Solidarity obo Kern V Modau and others, (JR987/05) [2007]. ZALC 131; [2007] 6BLLR 566(LC) (19 January 2007) where the courts considered what constituted demotion and whether the same was reasonable. The courts emphasized that demotion can only be considered as a sanction as an alternative to dismissal.

45. Also to a decision in Van Niekerk v Medicross Health Care Group (PTY) LTD [1998] 8 BALR 1038(CCMA), wherein the CCMA found that since demotion is a disciplinary action, “consultation and counselling should take place before demotion is implemented. In the absence of a fair reason and fair procedure, the demotion was held to amount to an unfair unilateral alteration of terms and conditions of employment.” These two decisions are irrelevant to this case.

46. The applicants representative correctly confirmed that I am not bound by an award and /or decision issued by another Commissioner, but referred me to an award in SADTU obo Mrali A. vs Eastern Cape Department of Education [2021] ELRC 644-20-21(ELRC) where he says the sanction of demotion was set aside where no proper procedures were followed to the latter.” Again I am not bound by the decision or award of another Commissioner and am not even privy to the issue that was discussed in this matter.

47. The employer is the custodian of discipline and has a duty to discipline the employees where there is reasonable suspicion that they have committed transgressions but that discipline must be exercised fairly.

48. On the appropriateness of the sanction the Labour Appeal Court in its decision in Nampak Corrugated Wadesville v/s Khoza (1999) 20 ILJ 585 (LAC) per Ngcobo J.A. held that the determination of the appropriate sanction is a matter which is largely within the discretion of the employer, however that discretion must be exercised fairly.

49. Even if the penalty attached to this transgression is not listed in the employer’s disciplinary code, the transgression is a serious one. The sanction of a suspension without pay for a period of a month imposed by the chairperson / employer in the circumstances was a fair and a reasonable one.

50. In De Beers Consolidated Mines Ltd v/s CCMA & others (2000) 21 ILJ 1051 (LAC) the court accepted that the ultimate justification for the employers powers to impose discipline flows from the right to manage their business effectively. The court held further that “dismissal is not an expression of moral outrage; much less it is an act of vengeance. It is or should be a sensible operational response to risk management in the particular enterprise”. The employees have to submit to the authority of the employer at all times and have to perform their duties diligently.

51. In Colonial Mutual v/s Mc Donald 1931 AD 412 at 436 the court confirmed that the employee is subject to the control of the employer in the sense that the later has the right to prescribe not only what work has to be done but also the manner in which that work has to be done. Even though this is an old Appellate Division decision it is very relevant to this case because the procedures applicable are there to safeguard the interests of the respondent.

52. In this case the applicant has not performed her duties as required in terms of her appointment and her contract that she has with the respondent. In paragraph 31 of the applicants closing arguments the applicants representative argue that:

- The applicant did not mislead the employer and in the previous disciplinary hearing she apologized as a sign of remorse. Even the presiding officer confirmed that if she had shown remorse, he would have reached another decision less harsh than suspension without pay.

53. This statement is not correct, the applicant both at the disciplinary hearing and arbitration hearing tried to justify her wrongdoing or failure to perform her duties and even if she at any stage apologized this was not a true and honest apology or remorse. I say so because the applicant does not and up to the end of the arbitration hearing admit fault.

54. Secondly we spent more than 5 full days, with the applicant justifying her fault or transgressions and this conduct is not consistent with an employee who is remorseful. It must also be noted that remorse follow admission and acceptance of fault and this is not present with this applicant.

55. For the reasons stated above it is clear that the applicant’s sanction of suspension without pay for a period of a month as a disciplinary action was fair and that the respondent has not committed any unfair labour practice as alleged by the applicant.

56. In the circumstances I therefore make the following award.

AWARD

57. The sanction of a suspension for a period of a month without pay issued by the Chairperson of the hearing Mr. K. S. Dalasile on the 28th of July 2022, as and for the respondent, Department of Education Eastern Cape to the applicant Mrs. Mabhengu was fair and did not constitute any unfair labour practice as contemplated by section 186 (2) (b) of the Labour Relations Act 66 of 1995 as amended in 2015.

58. This application is dismissed and the applicant is therefore not entitled to any relief.

59. The ELRC is instructed to close this file.


Signature:

Commissioner: Malusi Mbuli