ELRC526 – 23/24GP

IN THE ELRC ARBITRATION
BETWEEN:

SAOU obo RJ KACHELHOFFER “the Applicant”

and

DEPARTMENT OF EDUCATION – GAUTENG PROVINCE “the Respondent”


ARBITRATION AWARD


Case Number: ELRC526 – 23/24GP

Last date of arbitration: 22 February 2024

Final closing arguments submitted in writing on: 1 March 2024

Date of award: 11 April 2024 (extension granted)

COEN HAVENGA
Senior ELRC Arbitrator


Details of hearing and representation

1. This arbitration took place in terms of the referral of the matter by the Applicant to the Education Labour Relations Council. It was heard at the premises of the Respondent at Johannesburg East District Office in Norwood. The last day of the hearing was on 22 February 2024.

2. The Applicant is SAOU on behalf of Mr Kachelhoffer, R, represented by Ms Herbst, R, a union official. The Respondent is the Gauteng Department of Education (“GDE”), represented by Mr Munengwane, J.

Issue to be decided

3. The dismissal of the Applicant is not in dispute. I must determine whether his dismissal was substantively fair. The Applicant did not dispute the procedural fairness of his dismissal.

Background to the dispute

4. The Applicant was employed as principal at Bryanston Parallel Medium School (“the School”). He has been employed by the Respondent since 1 January 1984. His salary notch was R739 761,00 per annum at the time of dismissal.

5. The Applicant was charged with 2 allegations of contravention of section 18(1)(ee) and section 18(1)(a) of the Employment of Educators Act 76 of 1998 (“the EEA”) respectively, in that:
5.1 “It is alleged that during 2018 and 2022 while on duty at Bryanston Parallel Medium School you committed an act of dishonesty in that you appointed Ms H van Eeden an unregistered educator to teach learners;
5.2 “It is alleged that on or around March 2022 while on duty at Bryanston Parallel Medium School you contravened section 38a(1)(b) in that you made payment amounting to R30 000 to Ms Meiring when you know or ought to have known that it is wrong to do so”.

6. The parties concluded a pre-arbitration meeting, and the signed minutes form part of the record. The following facts were placed in dispute:
6.1 Whether the dismissal was substantively fair.
6.2 Whether the sanction of dismissal was appropriate.

7. The Applicant denied both the allegations. He was dismissed on 10 October 2023 following a disciplinary hearing and unsuccessful appeal to the MEC.

8. It is not in dispute that the Applicant had a clean disciplinary record with the GDE.

9. The relief the Applicant seeks from this arbitration hearing is retrospective reinstatement without loss of benefits.

10. The parties submitted a common bundle of documents marked as Bundle A.

Summary of evidence

The proceedings have been recorded digitally, and a summary of the Respondent’s and Applicant’s witnesses’ evidence follows below. What follows is only a summary of evidence deduced at the arbitration hearing and does not purport to be a verbatim transcription of all the testimony given. The recordings of the proceedings will reflect the complete testimony of the witnesses.

Respondent’s case

11. Helene van Eeden (“Van Eeden”) testified under oath that she started with the School in 2018. She completed her degree in 2021 and was registered with the South African Council of Educators (“SACE”) in 2022. To be appointed as an educator it is a requirement to have a degree and a SACE registration.

12. When she started with the School is 2018 she did not have a teacher’s qualification and she was not registered with SACE. She was appointed as an after-school assistant then. Her statement is contained in A12 to A15. She drove through to SACE numerous times in order to get registered without success. A18 is her letter of appointment by the School Governing Body (“SGB”) as educator with effect from 1 March 2018.

13. A70 to A74 reflects a Whatsapp conversation regarding her SACE registration. Jaco Meiring is her boyfriend. A18 was signed by the principal, being the Applicant, and by a member of the SGB, Annette Breedzke, on behalf of the SGB chairperson, Mr D Kruger. A25, the last page of her letter of appointment, was signed by the Applicant on behalf of the School. Breedzke signed as a witness. Van Eeden does not know why it was signed like that.

14. She applied for the post when it was advertised in 2017. She did not go for an interview. She was appointed by the SGB as an intervention teacher. She did not have a teacher’s qualification then. She knew people at the School and the principal phoned her to get the post. She had a degree in biological sciences. She could not register with SACE in 2017. She did qualify for a temporary SACE registration as she was registered with UNISA, and she does not why SACE did not register her. She could register with SACE in 2022 when she obtained her Post Graduate Certificate in Education (“PGCE”).

15. A180 to A201 contain the SACE registration requirements. During 2017 to 2021 she tried to get her SACE registration. She did her PGCE during that time. She was not registered by SACE before because she did not have her PGCE. When the Applicant and the SGB called her for the appointment she did not have PGCE or a degree in education. She did not have her SACE registration at that time.

16. During cross-examination Van Eeden testified that she was initially appointed at the pre-primary after-school. She always worked under supervision of a qualified educator. She the moved from aftercare to grade R class assistant. She always worked in the presence of a qualified educator. The assistant role did not include educating learners. She was only assisting the qualified educator.

17. Thereafter she taught grade 4, 5, 6 and 7 mathematics and grade 4, 5, 6 and 7 Afrikaans FAL as intervention teacher. As intervention teacher she was always in the presence of a qualified educator. SACE requires that if one does not have a SACE registration or temporary registration the learner engagement must be in the presence of a qualified educator, as it was in her case. She never taught learners on her own, she was always under supervision of a qualified educator, as required by SACE.

18. The Applicant did not appoint her in his own capacity, it was a decision of the SGB to appoint her. Breedzke signed A18, A19 and A25 on behalf of the SGB.

19. She tried to obtain her SACE registration. A80 reflects the reasons why she could not get registered. It is an article that claims that SACE prevented teachers from practising due to administrative issues. The SGB knew she was in the process of obtaining her SACE registration. She had a BSc degree at the time.

20. She was advised of the advertisement and she sent in her CV. The Applicant advised her of the open position. The CV reflected her qualifications. There was no SACE number on her CV. That is why she was placed under the supervision of a qualified educator. She obtained her SACE registration in August 2022. She taught mathematics. Her BSc degree had mathematics in it.

21. During re-examination Van Eeden testified that A186 does not state that she could teach under the supervision of a qualified educator. The Applicant signed A18 and A25 as principal and on behalf of the School. She does not know why the SGB did not sign as employer.

22. Renier van Loggerenberg (“Van Loggerenberg”) testified under oath that he is the current SGB chairperson at the School, since Marcg 2021. He was a parent at the School since 2020. In 2021 parents raised unhappiness with the SGB. He then became involved in 2021. They addressed the issues. They found irregularities with many teacher contracts. They decided to standardise the contracts. In May 2021 they were given 40 contracts of SGB staff to sign. In 2022 the Applicant sent an email to Van Loggerenberg informing him that the Applicant was being investigated by the GDE on allegations of nepotism. It was never disclosed to Van Loggerenberg that SGB staff had been appointed without SACE registration.

23. A27 is the employment contract between Van Eeden and the SGB. Van Loggerenberg signed it on A40 in the capacity of employer. A18 to A25 is the contract between Van Eeden and the School. Discrepancies in the SGB employment contracts necessitated the standardisation thereof. Therefore the employment contract between Van Eeden and the SGB as reflected in A27. Clause 4.3 on A29 is a declaration by the employee that he/she is registered with SACE. The new SGB was only in effect for a month and a half when he signed the contract. The principal was responsible for checking the requirements. They only made amendments to existing contracts and did not make new appointments. There were no instructions from the Applicant. Van Loggerenberg became aware of Van Eeden’s lack of a SACE registration when he had discussions with a GDE official.

24. Any payment in excess of R10 000,00 needs SGB approval and must be budgeted for. The payment in charge 2 was made without approval, and he only became aware of it afterwards. The finance member of the SGB, Hanneli van Graan, brought it to his attention. A111 is the School’s Finance Policy. A93 is a payment requisition form, requested by C Pelser, to pay Ronel Meiring R30 000,00 for the revue. It was signed by Pelser on 14 March 2022. The Applicant signed it on 14 March 2022. The SGB did not sign it. Van Loggerenberg was not aware that the payment was made. A97 is the proof of payment on 15 March 2022 to Ronel Meiring for R30 000,00. Pelser and the Applicant signed it. It was a contravention of clause 4.2 of the Finance Policy. The Applicant approved it and paid it without the approval of the SGB.

25. Ronel Meiring was approved for a section 38A payment. She was not entitled to be paid as a contractor. Meiring did refund the School with the R30 000,00. The issue was debated on the SGB and of the payment that was made to her without it going through the School system without SGB approval, and the SGB was instructed that it be refunded by Meiring, and the SGB would then reconsider her claim in terms of section 38A, which was done. A107 reflects the R93 500,00 that was authorised by the GDE under section 38A.

26. There is no record of a meeting where the payment of R30 000,00 to Meiring was approved. Meiring is in a relationship with the Applicant. She is his wife. It made the process tough.

27. During cross-examination Van Loggerenberg testified that it is the duty of the SGB as employer to ensure that employees comply with requirements. The principal is part of the SGB. The Applicant should have disclosed his relationship. He was dishonest in not disclosing his future daughter in law signed a contract without a SACE registration.

28. A122, clause 4.4 states that the creditors clerk is responsible for initiation of all payments. The bursar does the payments. The creditors clerk does the administration. The EFT Requisition form on A93 is not the principal’s responsibility to make sure everyone signed it. A137 is an email from Hanneli van Graan, the finance member of the SGB, to Mering, stating that the money paid to her must go through the payroll, and that it will be corrected as there was enough section 38A money budgeted to cover the amount.

29. It was put to Van Loggerenberg that the Applicant followed process as he obtained three quotes and singed the requisition form, and that the finance ladies made the mistake, to which Van Loggerenberg replied that the Applicant benefitted from the payment and he should have been extremely sensitive to it. Meiring did pay back the money when the SGB requested it. She did receive payments latter for multiple tasks through the section 38A approved budget. Van Loggerenberg did sign off on those payments.

30. Carla Pelser (“Pelser”) testified under oath that she is the financial manager and bursar at the School. Her statement is contained in A92. She was instructed by the Applicant to make the payment of R30 000,00 to Meiring. She felt that she did not have the authority to decline the payment. The Applicant brought the requisition to her. She wrote “R30 000 betaal 15 Maart res einde van Revue” on the quote of Meiring reflected in A94. That was the instruction given to her by the Applicant. A97 is the payment batch printout. It has three signatures, i.e. the creditors clerk Mia Shulze’s, Pelser’s, and the Applicant’s. The A121 clause 4.2 states that the principal have authorisation for all budgeted operating costs up to R10 000,00, all budgeted capital expenditure up to R10 000,00 and non-budgeted expenditure up to R5000,00. Non-budgeted expenditure over R5000,00 requires the approval of the SGB. The Applicant approved the payment of R30 000,00 contrary to the Finance Policy.

31. During cross-examination Pelser testified that she did not get the approval of the SGB on the EFT Requisition form in A93 as required by the Finance Policy. It was her responsibility to have checked whether the SGB approved the payment.

Applicant’s case

32. Roelof Jacobus Abraham Kachelhoffer, the Applicant, testified under oath that he has been the principal of the School for 24 years. He had a clean disciplinary record.

33. Van Eeden began as caretaker at the pre-primary, and then advanced to mathematics teacher for grade 4 and 5 at the primary school. There was a position at aftercare which needed to be filled urgently. He knew she was available. She was asked to come and assist, supposedly only for a week or two. She waiting for acceptance for her BSc Honors degree at the University of Pretoria. As aftercare assistant her duties were to look after the children after school on the playground. It was purely supervision. A18 reflects her appointment letter. It was for a mathematics intervention teacher.

34. The SGB made the decision to appoint her. The appointment of teachers is a governance task carried out by the SGB. The SGB had her CV when they took the decision to appoint her. The CV had general information about her, a copy of her BSc Degree and the subjects she passed. It was noted that she had mathematics as part of her degree and that she was adequately qualified for mathematics. She only finished her PGCE at the end of 2021.

35. She did not have a SACE registration when she was appointed as a mathematics teacher, although she made numerous attempts to get registered by SACE. SACE’s lack of commitment at the time made it difficult. Her appointment was made by the SGB as the employer. A18 reflects that Breedzke signed on behalf of the SGB chairperson. She was also the vice-chairperson of the post and remuneration committee. The chairperson, Kruger, was unavailable. The Applicant signed because he was the principal and he was on the SGB. It was a formality or governance from the School’s side. The SGB was responsible for the process. The SGB would give him permission to sign contracts on their behalf when the members were busy and not available.

36. The declaration in clause 4.3 on A29 is the teacher’s responsibility. She did state in her CV that her SACE registration is in progress. A40 was signed by Van Loggerenberg on behalf of the SGB. It is the responsibility of the SGB as employer to ensure that employees they employ has the necessary qualifications.

37. Van Eeden was employed because the School was in trouble without a mathematics teacher for two weeks. The parents were complaining that their children were falling behind. The School was between the devil and the deep blue sea. So the option was to employ a qualified teacher without a SACE registration or to prejudice the learners. It was the best outcome at the time because Van Eeden had the mathematics qualification, and the decision was taken in the best interest of the children.

38. The Applicant did not make the payment of the R30 000,00 as alleged in charge 2. He did not have the authority to make such payment. That money was pre-approved. It was a governance issue and the SGB decided she should be paid. He did not approve the payment as it was completely outside his authority. The authority to make such payment rested with the SGB. The Remco minutes show that the SGB decided that Meiring will be paid for the service as it was beyond her normal duties. In the past she was never paid for the extra work with the revue. Van Loggerenberg recommended that she be paid for those services and the rest of the SGB members approved it.

39. Pelser is the financial manager at the School, and the bursar. She is a qualified chartered accountant. She was employed in that specific capacity for the mere fact that she is a chartered accountant. She was to provide peace of mind in respect of the financial management of the budget of about R83 million. As chief financial officer her duties in respect of releasing payments were to get notification that it was approved for payment by the SGB. She was not supposed to make payment without having the approval of the SGB. She was supposed to attach the SGB approval to the payment. She had all the authority as chief financial officer to decline payments if she did not have the SGB approval. In her position of authority she could decide on the validity of payments.

40. Pelser’s statement in A92 was only to cover herself when the GDE investigated the matter. In the private sector she would have been dismissed for such a mistake. A122 reflects the creditor clerk’s duties in clause 4.4. Pelser signed A93. She was responsible to make sure it was approved by the SGB. There was no need to pay it on 15 March before she checked the approval. She was not supposed to make the payment without the SGB singing A93. The SGB and Pelser were the custodians of the Finance Policy of the School.

41. It is not uncommon for the principal to obtain quotes. The Applicant was instructed by the SGB to get three quotes for the revue. Only a small number of persons render that kind of service and he struggled to get three quotes. That is why he took the quote to Pelser. The Applicant had no knowledge that Pelser paid the R30 000,00 as per A97. He only later became aware that the money was paid. He went to Pelser when the money was paid and told her it was. When the GDE came to investigate he asked her why she paid a quote and not an invoice. Pelser said that there was a disagreement between her and Hanneli van Graan about whether Meiring was staff or a contractor. Van Graan is the chairperson of the SGB finance sub-committee. A137 reflects the conversation between Pelser, Van Graan and Meiring. Meiring did pay the money back as requested in order to rectify the method of payment. The Applicant was not copied into that correspondence. There was a section 38A approval for Meiring. The Remco only discussed the method of payment, not that Meiring was not entitled to it. The SGB approved the payment, rectified the R30 000,00 payment and then made the payment correctly.

42. In the Remco meeting Van Loggerenberg said “hierdie vrou moet betaal word vir haar dienste”. He did nothing when the payment came to his attention. Pelser should have been disciplined. Van Graan should also have been reprimanded. As principal the Applicant has three safety nets, i.e. the Finance Policy, the financial manager, and the finance chairperson of the SGB. None of them did their due diligence in terms of the finance policy. They failed the School and they failed the Applicant.

43. During cross-examination the Applicant testified that Van Eeden is his son’s girlfriend. The SGB made the appointments, not the Applicant. It is a governance issue and the Applicant is merely a spectator in the process of appointment of teachers. The process is run by the SGB. Section 16A of the South African Schools Act (“SASA”) does state that the principal represents the HOD. He did inform the SGB of the SACE requirements. Van Eeden did not have a SACE registration when the SG B appointed her. She was appointed because the School was in serious trouble with the learners not having had a mathematics teacher and the parents accused the School of letting them fall behind.

44. The Remco pre-approved the payment of Meiring in 2021. All agreed that Mering must be paid. He did not request Pelser to make the payment. One cannot make a payment on a quote, which was what he submitted. She was supposed to submit the quote to the SGB to obtain their approval for payment. Pelser should have complied with clause 4.4 of the Finance Policy. The Applicant denied that he contravened the provisions of section 38A by instructing Pelser to make the payment to Meiring, because he did not expect of her to make the payment on a quote. Pelser admitted that she did not follow the Finance Policy.

Analysis of evidence and argument

45. Both parties submitted extensive written closing arguments which form part of the record and will not be repeated here. I have considered all the legislation, arguments, legal principles, case law and Codes of Good Practice referred to by the parties, together with the other evidence, oral and documentary, presented by the parties during the arbitration hearing, as reflected in the record of the arbitration hearing. Section 138(7)(a) of the LRA requires me to issue an award with brief reasons.

46. In considering the fairness of the dismissal of the Applicant for misconduct, I will consider the principles contained in Schedule 2: Disciplinary Code and Procedures for Educators, promulgated in terms of the EEA, the principles contained in the Code of Good Practice: Dismissals, as contained in Schedule 8 to the Labour Relations Act 66 of 1995 (the Code), as well as the provisions of the South African Schools Act 84 of 1996. The dismissal of the Applicant is not in dispute. The Applicant disputes only the substantive fairness of his dismissal, and the Respondent is therefore required to prove on a balance of probabilities that it was substantively fair.

47. Arbitration hearings are not merely reviews of the employer’s decision to dismiss employees, or the propriety of the procedures followed by the employer (John Grogan Dismissal 320 (2002)). It is important to keep in mind that an arbitration hearing constitutes a full de novo rehearing on the merits as well as an investigation of the fairness of the procedure followed by the employer, should the latter be in dispute. The decision of the arbitrator is not reached with reference to the evidential material that was before the employer at the time of its enquiry, but on the evidential material placed before the arbitrator during the arbitration hearing. This means that all relevant evidence must be placed before the arbitrator in proper form, even if it has been fully canvassed at the employee’s disciplinary hearing. (See Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] JOL 20811 (CC, where the Court approved the LAC dictum in Count Fair Foods (Pty) Ltd v CCMA & Others [1999] 11 BLLR 1117 (LAC)).

48. The Applicant was charged with 2 allegations of contravention of section 18(1)(ee) and section 18(1)(a) of the Employment of Educators Act 76 of 1998 (“the EEA”) respectively, in that:
48.1 “It is alleged that during 2018 and 2022 while on duty at Bryanston Parallel Medium School you committed an act of dishonesty in that you appointed Ms H van Eeden an unregistered educator to teach learners; and
48.2 “It is alleged that on or around March 2022 while on duty at Bryanston Parallel Medium School you contravened section 38a(1)(b) in that you made payment amounting to R30 000 to Ms Meiring when you know or ought to have known that it is wrong to do so”.

Substantive fairness

49. I will deal with each allegation in chronological order.

50. Section 16A of the South African Schools Act 84 of 1996 (“SASA”) states that the Functions and responsibilities of principal of public school —
(1) (a) The principal of a public school represents the Head of Department in the governing body when acting in an official capacity as contemplated in sections 23 (1) (b) and 24 (1) ( j).
(b)…
(2) The principal must—
(a)…;
(b)…;
(c)…;
(d)…;
(e)…;
( f ) inform the governing body about policy and legislation;
(g)…; and
(h) assist the governing body with the management of the school’s funds, which assistance must include —
(i) the provision of information relating to any conditions imposed or directions issued by the Minister, the Member of the Executive Council or the Head of Department in respect of all financial matters of the school contemplated in Chapter 4;
(ii) the giving of advice to the governing body on the financial implications of decisions relating to the financial matters of the school;
(i) take all reasonable steps to prevent any financial maladministration or mismanagement by any staff member or by the governing body of the school;
( j) be a member of a finance committee or delegation of the governing body in order to manage any matter that has financial implications for the school; and
(k) report any maladministration or mismanagement of financial matters to the governing body of the school and to the Head of Department.
51. Allegation 1: It must be noted that the only direct evidence concerning the process that was followed by the School and the SGB during the initial appointment of Van Eeden is that of the Applicant. The Respondent did not call any other witness that was part of the official process of appointment. Van Eeden merely testified in respect of her role in getting appointed. The Applicant’s evidence that he did inform the SGB of the SACE requirements is therefore undisputed. I therefore cannot find that the Applicant did not comply with his duty to inform the governing body about policy and legislation as required by section 16A of SASA. Van Loggerenberg also merely testified to what was contained in the standardized contract of Van Eeden, and could not testify to the Applicant’s actions and/or intentions during her appointment.

52. It is not in dispute that the Van Eeden did not comply with the SACE requirements, but there is no evidence that would prove on a balance of probabilities that the Applicant intended to deceive the SGB, School or the GDE, or that he acted dishonestly during the process of the appointment of Van Eeden by the SGB as her employer. It is not in dispute that her appointment probably was irregular in so far as it did not comply with SACE requirements, but the Applicant was not charged with irregularly appointing Van Eeden. He was charged with committing “an act of dishonesty in that you appointed Ms H van Eeden an unregistered educator to teach learners”.

53. In so far as the irregularity of Van Eeden’s appointment goes, the undisputed evidence of the Applicant is that the School was under pressure of parents due to the absence of a mathematics teacher, and that Van Eeden was suitably qualified to fill that role, although she was not registered with SACE yet. It is also not in dispute that she made continuous efforts to obtain her temporary SACE registration. In this regard one cannot ignore Section 28(2) of the Constitution of the Republic of South Africa, no. 108 of 1996 which provides that a child’s best interests are of paramount importance in every matter concerning the child. Although this cannot be justification for not complying with the SACE requirements, it is a factor that should be kept in mind as surely it was not in the best interest of the learners to be left without a mathematics teacher for an extended period of time. I accordingly find no evidence that would prove on a balance of probabilities that the Applicant is guilty of the misconduct he was charged with in allegation 1. The Respondent did not discharge its duty to prove in this regard.

54. Allegation 2: Respondent carries the onus to prove on a balance of probabilities that the Applicant made the payment of R30 000,00 to Meiring contrary to the provisions of section 38a(1)(b), as contained in allegation 2. Pelser is the financial manager at the School, and the bursar. She is a qualified chartered accountant, and the Applicant’s testimony that she was employed in that specific capacity for the mere fact that she is a chartered accountant, is undisputed. As chief financial officer her duties in respect of releasing payments were to get notification that it was approved for payment by the SGB. She was not supposed to make payment without having the approval of the SGB. She was supposed to attach the SGB approval to the payment. She had all the authority as chief financial officer to decline payments if she did not have the SGB approval. She admitted that she made a mistake by not checking whether the SGB approved the payment. I find it highly improbable that a person in her position, with her qualifications and authority felt that she could not refuse the Applicant’s instruction, as she testified. She was the custodian of the Finance Policy and had all the authority to refuse an alleged illegal instruction. Even if I was to accept that the Applicant did instruct her to make the payment, it was Pelser who made the actual payment, and not the Applicant.

55. It is also prudent to keep in mind that Van Graan did not query the actual payment of the R30 000,00 to Mering in itself, but rather the fact that it was not paid through the payroll. It the SGB deemed the payment to have been made unlawfully, one would have expected them to query the actual payment, and not only the method of payment.

56. It is also evident that there was no prejudice to the School’s finances or to the GDE, as the payment was refunded and Meiring was indeed approved for a section 38A of SASA payment. I accordingly also find no evidence that would prove on a balance of probabilities that the Applicant is guilty of the misconduct he was charged with in allegation 2. The Respondent did not discharge its duty to prove in this regard.

57. It appears from the evidence of Van Loggerenberg and the questions asked by the Respondent’s representative and his closing arguments that there was unhappiness about the relationship between the Applicant, Meiring and Van Eeden. However, the Applicant was not charged with or found guilty of nepotism or failure to disclose his relationship. It is also curious that the GDE did not take any steps against the any of the SGB members in terms of the SGB Code of Conduct provisions contained in SASA, as it is entitled to do in case of alleged non-compliance with the responsibilities of SGB members.

58. The Respondent did not discharge the onus of proving the Applicant’s guilt on allegations 1 and 2 on a balance of probabilities. I cannot find that the Applicant committed the misconduct he that he was dismissed for. There is therefore no evidence before me that proves that the Applicant contravened a rule or standard regulating conduct in, or of relevance to, the workplace.

59. I accordingly find the Applicant’s dismissal substantively unfair.

Procedural fairness

60. The Applicant did not dispute the procedural fairness of his dismissal and I accordingly find the Applicant’s dismissal procedurally fair.

Relief

61. The Applicant requested to be reinstated with retrospective effect. He had been employed at and by the Respondent since 1984 with a clean disciplinary record. There is no evidence before me that a continued employment relationship would be problematic or intolerable. The Respondent did present any evidence that the trust relationship between the Applicant and the Respondent was irretrievably broken down, or why reinstatement would not be feasible and appropriate.

62. In the light of the facts before me I find that reinstatement would be the appropriate remedy.

Award

63. The dismissal of the Applicant, Mr Kachelhoffer, RJ, was procedurally fair, but substantively unfair.

64. I hereby order the Respondent, the Gauteng Department of Education, to reinstate the Applicant in his position of principal of at Bryanston Parallel Medium School by no later than 22 April 2024, on the same terms and conditions of employment that existed immediately prior to his unfair dismissal, and without loss of any remuneration and benefits that would have accrued to him but for the dismissal.

65. The said reinstatement shall have a retrospective operation from the date of the Applicant’s dismissal, i.e. 10 October 2023.

66. The Respondent is ordered to pay to the Applicant his full salary for the period between the date of dismissal, i.e. 10 October 2023 and the date of reinstatement, i.e. 22 April 2024, by no later than 15 May 2024.

67. The amount that must be paid to the Applicant is calculated in terms of the provisions of section 35 of the Basic Conditions of Employment Act, no. 75 of 1997, as follows:
• R739 761,00 per annum ÷ 12 = R61 646,75 per month x 5 months [from 1 November 2023 to 31 March 2024) = R308 233,75.
• 11 October 2023 to 31 October 2023, and 1 April 2024 to 21 April 2024, being 42 days @ R2847,42 per day = R119 591,84 (R61 646,75 ÷ 4.33 = R14 237,12 per week ÷ 5 = R2847,42 per day)
• Total amount payable to the Applicant is R427 825,59 (four hundred and twenty-seven thousand eight hundred and twenty-five rand and fifty-nine cent), minus such deductions as the Respondent is in terms of the law or agreement with the Applicant entitled or obliged to make.
68. The Applicant shall report for duty by no later than 22 April 2024.

SIGNED AT KEMPTON PARK ON THIS 11th DAY OF APRIL 2024.


Coen Havenga
Senior ELRC Arbitrator