Case Number: ELRC197-24/25NC
Commissioner: Simon Beesnaar
Date of Award: 29 April 2025

In the ARBITRATION between

Zelda Zuricka Vos
(Union/Applicant)

And

DEPARTMENT OF EDUCATION – Northern Cape
(Respondent)

Union/Applicant’s representative: Ms. Britney Theron – Legal Rep (BTA INC)
Union/Applicant’s address:

Telephone: 066 299 9376
Telefax:
E-mail: britney@theronattorneys.co.za

Respondent’s representative: Mr. Oban Cronje – Legal Rep (VDW INC)
Respondent’s address:

Telephone: 082 579 9199
Telefax:
E-mail: oban@vanwall.co.za

DETAILS OF THE HEARING AND REPRESENTATION

1. This is the award in the arbitration between Zuricka Zelda Vos, the applicant and the Northern Cape Department of Education, the respondent.
2. The referral is in terms of section 191 of the Labour Relations Act, 66 of 1995 as amended (herein referred to as “the LRA”) and the award is issued in terms of section 138(7) of the LRA.
3. The arbitration was scheduled on 20 – 21 November 2024, 27 – 29 January 2025, 31 March 2025 and concluded on 3 April 2025 on a virtual platform.
4. The applicant was represented legally by Ms. Britney Theron from BTA INC. The respondent was represented by Mr. Oben Cronje in his capacity as a Legal Representative from VDW INC. He was accompanied throughout the proceedings by Dr Nadia Alexander, the Senior Legal Admin Officer as an observer.
5. The parties submitted into evidence bundles of documents which were accepted as what they purported to be. For the purpose of proceedings, the respondent’s bundle is referred to herein after as Annexure “R1 and 2” while the applicant’s bundle is Annexure “A1-70” and “B1-24”.
6. The proceedings were conducted in English and were manually and digitally recorded. Messrs Kwayi and Banga assisted the parties in Afrikaans as Interpreters.

ISSUES TO BE DECIDED

7. The dispute is whether the dismissal of Ms. Zelda Vos was substantively and procedurally unfair.
8. In regard to the substantive fairness of the dismissal, the issues are whether the applicant committed alleged misconduct as per R1-3 (Notice of Hearing). It is further submitted that some of the allegations unjustly dates back to 2019.
9. The consistency in the application of the rule by the respondent is also in dispute.
10. The procedural challenge related to the conduct of the chairperson of the enquiry in denying the applicant a representative of her choice. Further that the applicant was not allowed enough time to gather evidence in support of her case while she was on suspension.
11. The vagueness of the disciplinary charges is also disputed given the fact that she was denied the benefit of a representative.
12. The sanction of dismissal is also in issue.
13. Finally, should the dismissal be held to have been unfair, to determine the appropriate remedy.

BACKGROUND TO THE DISPUTE

14. The applicant was a School Principal at Loeriesfontein High from 1 January 2020. Her date of engagement with the Department was 1 January 2012. She earned R 501 978.00 per annum at the time of her dismissal.
15. She was found guilty on four (4) counts of misconduct and was dismissed on 31 May 2024. It is common cause that the applicant was not represented and could not plead to the charges because of the alleged vagueness thereof. However the chairperson entered a plea of not guilty and proceeded with the enquiry.
16. The disciplinary enquiry was postponed twice. It proceeded on 21 and 22 November 2023. It is also common cause that at the time of commencement of the enquiry, the applicant was still on suspension.
17. Aggrieved by the outcome of the disciplinary enquiry, the applicant referred the dispute to the Council for conciliation. Conciliation was scheduled on 18 June 2024 and failed to resolve the dispute. The applicant then requested that the matter be resolved through arbitration.
18. The relief sought by the applicant in the circumstances is retrospective reinstatement.

SURVEY OF EVIDENCE AND ARGUMENT
Respondent’s evidence –

19. Mr. Ricardo Britz is the Assistant Manager in Labour Relations in the Namakwa District – Springbok. He started in September 2022. He testified that in or around November 2022, the School Governing Body (SGB) for the Looeriesfontein High School made an application of expulsion of eight (8) learners from the school.

20. Ms Curnow was the Acting District Director (ADD) at the time until December 2022. He stated that normally when there is an expulsion of a learner by the SGB, the application goes via the Circuit Manager to the District Office. Then to the Chief Education Specialist for Circuit Coordination.
21. There is an establishment called Section 9 Committee in the District, chaired by the Chief Education Specialist. Other panel members are Section Heads of different units in the District. The application for expulsion is then presented to this Committee for discussion. The disciplinary procedure followed at the school would be looked at as well as the reason/s for the expulsion.
22. Thereafter the Committee would then make a recommendation to the District Director. The Section 9 Committee in the circumstances of the Loeriesfontein High School matter was held on 13 December 2022 and the recommendation was handed in to Ms Curnow who was the Acting District Director then. It was already in December and most of the Departmental Officials went on leave.
23. The ADD could not deal with the matter after the Committee submitted its recommendation. The Committee recommended that learners should not be expelled, but an alternative sanction be considered. It was further his testimony that the applicant personally investigated the alleged misconduct of the 8 learners and decided on the expulsion and she was not impartial.
24. When they came back in January 2023, Mr Farao was appointed as new ADD. The Committee recommendations were presented to him and he agreed that learners not be expelled but an alternative be considered. A letter was written to the Chairperson of the Section 9 Committee on 17 January 2023 to communicate that decision to the school Principal, Ms Vos (applicant).
25. On the day in question Ms Cupido sent the communication via WhatsApp to the applicant regarding the decision of the ADD that learners should not be expelled. Ms. Cupido was on her way to a meeting in Kimberley. The parents of the learners also made contact with her on the outcome with regard to the ADD’s decision.
26. The applicant responded to Ms Cupido’s WhatsApp that the SGB would not allow the learners back at the school. The ADD was notified about the applicant’s response on the matter. He then sent a letter with a clear instruction for learners to be allowed back at the school on an alternative sanction but the applicant refused to allow the learners at the school.
27. On 31 January 2023, the ADD had a meeting with the SGB. He was accompanied to that meeting by Ms Cupido and Clair Van Sitters. The applicant was also in attendance. The meeting was on the expulsion of the learners and an alternative sanction as recommended by the Section 9 Committee. He intimated that the applicant was more vocal than the other SGB members in that meeting.
28. After the meeting the parents of the 8 expelled learners wanted to address the ADD on their concerns and the applicant stated that she was not going to allow them on the school premises. The learners returned to school on 1 February 2023 after the applicant took leave of absence. Ms Wilcox was the Acting School Principal. She allowed learners back. However she received an instruction from the applicant that learners must sit in the corridor in front of the main hall and should not be allowed into classrooms.
29. On 2 February 2023 the applicant was back from leave and he was delegated by the ADD to write her a letter, as to why disciplinary actions should not be taken against her. In the meantime the Institutional Management and Governance Unit conducted training session for the SGB. The applicant was also part of the session. It was further indicated by the officials who conducted training that the applicant took over the role of the Chairperson of the SGB and that was worrisome.
30. It then followed that the ADD wanted to understand as to why his instruction was not carried through by the applicant. He was instructed to conduct an investigation on how SGB arrived at the decision of expulsion of the learners. At that time, they received a complaint from the MEC’s office pertaining to a parent of one of the learners who was expelled from school.
31. The parent complained about the victimisation of the learner and that the learner was arrested at school. Based on that information, the applicant was suspended pending the investigation on the matter. The investigations started towards the end of February 2023. He spoke to the learners about the incident regarding the list that led to their expulsion and they told him they were just joking.
32. He also noted while conducting an investigation at the school, that the applicant’s son was doing some work for the school. He was informed that he installed the CCTV cameras. He is Mr Hagan Vos, the applicant’s son. When he tried to ask him some question with regard to the work he was doing at the school, he refused to talk to him on the instruction of his parents.

33. He came back around April 2023 to continue the investigation. At the time the applicant’s suspension was uplifted. During the investigation there was new information pertaining to the installation of cameras at the school and that monies used to pay the applicant’s son came from a donor. Based on that and other information that came to the fore, the applicant was again suspended.
34. He spoke to Ms Brandt, the State Accountant at the District Office to assist the investigation. That she must check the assets register amongst others, if proper protocol was followed in terms of acquiring the services of Mr Hagan Vos. They went through the SGB file and looked at the meeting minutes when that decision was arrived at but they found nothing. On conclusion of the investigation they submitted recommendations to the District Director that disciplinary action should be taken against the applicant.
35. Charges were formulated (see R1-3) with the date of the hearing and he testified at the internal enquiry. Ms Bantsijang from the Office of the Premier was the Initiator. He interacted with the applicant on 21 November 2023 and provided her with the bundle of documents. The hearing could not proceed because the applicant complained that the charges were vague and she was denied access to witnesses and other material evidence including the SGB file.
36. Under cross examination he disagreed that the charges against the learners were of a serious nature and warranted expulsion. He further maintained that the SGB were not happy that the decision to expel was revoked and they lodged an appeal. On the exchange of the bundle of documents he conceded that they were given to the applicant for the first time at the disciplinary enquiry on 21 November 2023.
37. Ms. Roshel Elmary Brandt works for the Department in the finance services unit at the Namakwa District. She is responsible for salary management. She also deals with school finance and funding. Her unit also give support to schools, (public and private) and the SGBs, especially on financial matters.
38. They regularly hold information sessions, training and refreshers on financial management at schools. The school principals are part of these activities. R57-75 is the Financial Directives for the schools in the Northern Cape signed off by the HOD. It became operational on 31 August 2015. It is a guide on how to manage school finances and to maintain an effective and efficient accounting system in terms of the South African Schools Act, 84 of 1996 as amended (SASA).
39. These Directives also make provisions for the establishment of a Finance Committee that serves as a committee of the SGB in terms of section 30 of SASA. The Principal is also part of this committee in an advisory capacity and represents the Accounting Authority. He/she should be aware of the schools finances at all times. The finance officer/financial administrator /bookkeeper should be appointed by the SGB in writing.
40. She maintained that it is recommended that the SGB must first approve expenditure before goods are procured. There is a limited amount that the Principal is allowed to approve (see R66-67). Any services / goods requiring R 300 000.00 and above must go on tender. Five quotations are required in that regard and the SGB must always keep minutes of meetings held when such decisions are made. Requisitions, quotations, proof of purchase / payments including EFT payments must be recorded. These are referred to as Financial Records and must reflect on the financial statements. The SGB must always ensure these guidelines are complied with, including Treasury Regulations.
41. She intimated further that it is expected of the SGB not to enter into any loan, overdrafts or other financing arrangement for obtaining funds without prior approval of the MEC. Assets are kept in the Asset Register and must reflect on the financial statement of the school. A receipt book is also kept. The guidelines further regulate the alienation of school assets (see R75).
42. After she was requested by Mr Britz who was conducting an investigation on the SGB and the conduct of the applicant, she compiled a report to determine if financial management practices at Loeriesfontein High are in line with SASA and the Financial Directive for NCDOE (see R51-56). The report was finalised on 14 June 2023. They looked into the financial records for the financial year 2020-2021. Her investigation revealed a lot of irregularities and financial mismanagement at the school under the leadership of the applicant.
43. Monies were received as donations. The applicant signed and received the donations as Finance officer (see R76-77). They did not have the Finance committee in place and the applicant assumed the roles / responsibilities of Finance Administrator. That in her view constituted a conflict of interest and is in contravention with the Financial Directives. She maintained that the role of the Principal in that regard is very clear (see R70). Ms Wilcox who acted in the capacity as Acting Principal also confirmed that the applicant made various payments by herself. The records were incomplete. Not all attachments were made available for some transactions in the period under investigation (2020 – 2023).

44. No records and minutes were found regarding payments made to the applicant’s son for installation of cameras and that he was approved by the SGB. She maintained that further constituted another conflict of interest on the part of the applicant while the Directives and the SASA are clear. She should have at least recused herself from the meeting when the decision to appoint her son as a service provider was taken. No records were found.
45. Another issue related to disposal of assets at the public school. Approval must first be obtained from the MEC as per the SASA. The records show that some assets were disposed by the applicant without prior approval (see R76). That included cupboards, sewing machines, and chairs among others. Receipts were issued and money received was referred to as donations as signed for by the applicant. The asset register could not be found.
46. She compiled a document on the list of financial transactions for January to July 2022 (R138 – 152). That showed that payments and purchases were made without due processes being followed. There were no records to support most of the transactions performed by the applicant who assumed the role of financial administrator.
47. She compiled a similar document (R230 – 243) for the period between January to June 2021. That monitored all the financial transactions for that period. She observed that proper procedures were not followed throughout the period under review. She confirmed under cross examination that her testimony was based on the contravention of the Financial Directives. On the resignation of Ms. April, she concluded that she was not aware that Ms. April, the then Finance Officer resigned.
48. Ms. Wilcox is an Educator at Loeriesfontein High School with 12 years’ experience. She worked with the applicant since 2020 and described her management style as autocratic. They had a strained relationship at school because of the way she was managing the affairs of the school. She was involved in the school finance matters including the budget and payments. .
49. She had access to the receipt book but was never provided with any of the SGB minutes regarding the school finances. When she had challenges she always asked the applicant for guidance but she did not get much support or assistance from her. She was aware of her suspension in February 2023. There was an investigation going on. During that period, she was appointed as Acting School Principal.
50. On 1 February 2023 she was requested by the Department to write a report (see B19-20). At the time the applicant was on leave of absence. After she compiled it, she sent it to the applicant to check it and she had no problem with the contents thereof. She maintained that the expulsion of the learners was unfair. They were just sitting outside in the foyer as per instruction of the applicant. Then later on Ms Cupido called her and instructed her to put the learners in to the class room. It was not easy because that was against the will of the applicant and the SGB.
51. Under cross examination she stated that she did not play any role as far as the disciplinary enquiry was concerned. She was not made aware of the disciplinary charges against the applicant.
52. Ms. Raquel Farmer is the Administration Clerk for the Department at Loeriesfontein High since August 2022. Before her current position, she worked for the SGB. As an Administration Clerk she worked closely with the Principal. She was like her right hand man. She deals with attendance of personnel and HR matters, telephone calls and makes appointments for the Principal.
53. While working for the SGB she was reporting to the Principal. She used to receive school moneys like what she is doing right now. R77 is the receipt book where she recorded payments and money received. Receipt number 114 shows that she bought a mirror from the school for R150.00 and recorded it in the receipt book as donation when it was not a donation. She made payment to herself.
54. She did not know what to write and she asked the applicant. She was instructed to write donation. Again on receipt 120 on R78 she received money from Ms. Saal for the skateboard sold and wrote it as a donation on the receipt. Money received for assets sold were recorded as donations (see R76-79). That was done according to the instruction of the Principal.
55. She did not know the procedure that must be followed when the school assets are sold until Ms Brandt gave them training. She now knows what should happen when assets are sold.

56. Ms. Dikeledi Bantsijang represented the Department during the enquiry. She is currently working at the Office of the Premier – NC as AD: Labour Relations. She took over from Mr Britz who formulated and initiated the disciplinary charges against the applicant. Her involvement in the matter came around August 2023.
57. On the first day of the hearing she requested postponement and was granted. The applicant’s Legal Representative Ms Bester was not opposed to the request. Pre-hearing was held virtually and the respondent made their bundle of documents available to the applicant. They did not receive anything from the applicant.
58. They reconvened in September 2023 for two days. On the hearing day the applicant came with a different representative, Mr Kleynhans. At the outset of the enquiry the applicant raised few preliminary issues. Firstly she complained about the vagueness of the charges. She maintained that the issue was dealt with and resolved with the applicant’s first representative. The applicant then requested that the hearing be postponed after they requested certain information.
59. Postponement was accordingly granted and a new date agreed upon by the parties, being, 21 – 22 November 2023. On the set date, the applicant came alone without a representative. They went on record and the hearing started. The applicant submitted that she did not have enough time to secure a representative and requested another postponement. She opposed the request for postponement and the Chairperson ruled that the hearing should proceed.
60. The applicant decided that she would not participate in the proceeding. She sat there without saying anything. She did not testify or call any witness. The respondent led evidence through 3 witnesses on the first day of the hearing (21 November 2023). On 22 November 2023 she called 2 witnesses and closed the respondent’s case. They were directed to submit Heads of Arguments in writing. On the 5th day she made her submissions. She became aware latter that the applicant did not submit her closing arguments and mitigations. The Chairperson made a decision and dismissed her.
61. Under cross examination she conceded that the charges were vague because among others were not specific in terms of assets which were alleged to have been sold by the applicant. Further on she agreed that the applicant requested the particulars of the charges through her representative and access to the respondent’s premises to collate information was granted on the first day of the hearing.
62. On the issue pertaining to the applicant’s representative, she did not have any problem whether she came with a lawyer or union representative. The issue was dealt with and decided by the Chairperson not to allow her legal representation.
63. Mr Fadiel Farao is the current ADD for Namakwa. He has been appointed in an acting capacity since 1 January 2023 until 30 June 2025. He was involved in the disciplinary enquiry of the applicant. As the ADD, he took a decision to proceed with disciplinary charges against the applicant.
64. He sanctioned an investigation on allegations of serious misconduct that impacted negatively on the employment relationship. Further that the applicant blatantly refused a lawful instruction and sold the assets of the respondent without due processes being followed.
65. It was further his testimony that after the SGB made a recommendation to expel 8 learners from the school, he gave an instruction to the applicant to consider an alternative lighter sanction. The applicant refused to follow through with his instruction. If the decision to expel the learners was allowed, they would have ended up as drop outs, adding to the high unemployment rate in the community and associated ills.

Applicant’s evidence –

66. Ms. Zelda Zuricka Vos was the Principal at the school since 2020. She testified that on 25 October 2022 the School Secretary brought her a few lists which had been placed at different locations in the school. The title of the list was “Loeriesfontein High School – Gintoe List”. Gintoe in her understanding is when you refer to a person as a whore. A person with a bad reputation and is promiscuous.
67. After she received the list she went out to enquire as to who could have made that list. She accessed the CCTV footages and rewound it. 8 learners could be seen putting the list on various places at the school. She brought all of them to her office to talk about the seriousness of their misconduct. That they would be suspended and to bring their parent with. They were subjected to a disciplinary hearing, held on 8 November 2022.

68. After the SGB’s decision to expel them from school, they wrote a letter to the HOD for their expulsion in terms of section 9 of the SASA. The District Office was not in favour of their expulsion and suggested and a less severe sanction of a written warning, supervised school work, apology and temporary suspension from school activities. That letter was signed by ADD Mr. Farao dated 19 January 2023. She also received same letter (screenshot) on WhatsApp from Ms Cupido on the same date regarding the outcome from the District Office. It was around 15:48.
69. With regard to Count 1 of the disciplinary charges, when the school started at 08:00 on the day in question, she was not made aware of the decision of the ADD on the expulsion of learners. It was therefore practically impossible to could have allowed the learners back to school. She further maintained that it could have been inappropriate to allow them back. After the outcome was received from the District Office, the SGB convened an urgent /ad hoc meeting to decide on the way forward.
70. While not every member of the SGB attended, the majority were there and the meeting went ahead as scheduled on 19 January 2023 at 17:00 (see Attendance Register B69). She maintained that the Department did not consider the seriousness of the matter and the impact on victims or learners who were on the list. The decision to allow them back at the school was inappropriate in her view and the SGB were not happy about the outcome. They decided to appeal the decision of the ADD.
71. She maintained that while the SGB were in a process of appealing the unlawful decision of the ADD, the expulsion would remain in force. They were of the view the decision on the expulsion of the learner is not that of the ADD, but the HOD in terms of SASA. Further on they sought legal advice on the matter. While they appealed the decision of the ADD, she later became aware that the authority to expel was delegated to the District Director.
72. The learners returned to the school on 1 February 2023. On 9 February 2023 she was suspended. On the disposal of assets, she was not aware of the assets referred to on the 2nd charge. She maintained that she was not given proper training on asset management disposal and during induction. At the time when some of the school’s assets were sold, she did not know that approval from the MEC should have been sought.
73. She further testified that while she was charged for selling school assets without prior approval of the MEC, she was aware that the local Primary School Principal sold the kombi without any approval but she was not dismissed and that in her view was being inconsistent. The Primary School Principal is Jolene Klaaste. Pertaining to count 4, there was a need for a security system at the school and they did not receive any funding for that. The matter was placed on tender and response was received from bidders outside Loeriesfontein.
74. The SGB held a meeting and it was decided that funds should be raised to install the cameras at the school. She saw there were CCTV cameras on special and she bought them out of her own pocket and was reimbursed by the SGB. HI-Force was the only IT company in Loeriesfontein. It is Hagan Vos’ company. When a decision was taken at the SGB meeting to procure his services she recused herself from that meeting.
75. Pertaining to count 5, she maintained that she was not given enough time to prepare a proper response. The financial directives are just guidelines and are non-mandatory in her view.
76. She received the charge sheet on 27 June 2023. Her Union Representative at the time was Ms. Anthea Bester from SAOU. They were provided with the respondent’s bundle late in August 2023 and that was huge. On the date of the hearing she received another bundle, of about 300 pages and she could not prepare properly. She was on suspension and it was difficult to make contact with witnesses and access other documents like SGB meeting minutes. Access was only granted on 21 November 2023 by the Chairperson, which was the date of the enquiry.
77. She was also denied the right to a representative by the Chairperson who indicated that Legal practitioners would not be allowed. She came to the hearing alone without a representative. She then concluded that the Chairperson was biased and they applied for her recusal.
78. Under cross examination she confirmed that they sold assets of the school without prior permission / approval of the MEC as legally required. Further that the disciplinary charges against her were serious in nature and dismissible offences.

ANALYSIS OF EVIDENCE AND ARGUMENT

79. This is a referral in terms of section 191 of the LRA. The applicant seeks retrospective reinstatement should I find in her favour. In determining the dispute between the parties, I considered the provisions of the LRA and the Code of Good Practice: Dismissal (herein referred to as “the Code”) and came to the following findings.
80. Section 185 of the LRA stipulates that every employee has the right not to be unfairly dismissed or to be subjected to an unfair labour practice.
81. Section 188 of the LRA stipulates that a dismissal that is not automatically unfair, is unfair if the employer fails to prove that the reason for dismissal is a fair reason related to the employee’s conduct or capacity; or on the employer’s operational requirements; and that the dismissal was effected in accordance with a fair procedure.
82. In section 192 it is further stipulated that if the applicant has established the existence of a dismissal the burden of proof, on a balance of probabilities that the applicant’s dismissal was fair, rests with the employer. The LRA provides the relevant law on the substantive and procedural fairness of the dismissal in the Code.
83. It is acknowledged that given the nature of the respondent’s business and the risks involved, it is crucial that it should have rules, policies, codes and procedures in place. A breach of such rules and policies should obviously not be treated lightly as the consequences could be so dire. However, in considering the appropriate sanction for any breach, the employer is required to do so dispassionately and fairly. Where the employer has consistently ensured that the rules and policies are adhered to at all times and has consistently dealt with any breaches, any disciplinary action it takes pertaining to similar breaches would obviously pass the test of fairness.
84. Nevertheless the substantive fairness of a dismissal for misconduct is assessed according to a number of criteria. These are set out in item 7 of the Code of Good Conduct: Dismissal. This reads:
    “Any person who is determining whether a dismissal for misconduct is unfair should consider –
    (a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
    b) if a rule or standard was contravened, whether or not-
    (i) the rule was a valid or reasonable rule or standard;

(ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
(iii) the rule or standard has been consistently applied by the employer; and
(iv) dismissal was an appropriate sanction for the contravention of the rule or standard.

85. Paragraph (a) of item 7 requires the employer to prove, on a balance of probabilities, that the employee was actually guilty of misconduct. This involves proving that a rule existed, and that the employee actually broke that rule. The existence of a rule may be proved by reference to the employee’s contract, or to an applicable collective agreement or disciplinary code. However, the rule need not exist in written form; it is generally assumed that certain conduct is calculated to destroy the employment relationship, whether or not it is expressly prohibited in a contract or disciplinary code, and that the employee knew or should have known that this conduct could lead to dismissal.
86. For example in Early Bird Farms (Pty) Ltd v Mlambo (1997) 5 BLLR 541 (LAC) at 544, it was held that the employer did not have to prove with absolute certainty that the employee was guilty of the alleged misconduct but that proof on a balance of probabilities was sufficient.
87. The applicant was found guilty on four (4) counts of misconduct. It is alleged that (1). she failed to carry out a lawful instruction by the ADD; (2). she wilfully and deliberately failed to comply with the asset management disposal prescripts; (3). she failed to recuse herself from the SGB meeting when a decision to procure the services of her son was taken; (4). and failure to adhere to the Financial Directives of the NCDOE.
88. It is important to note that the applicant did not enter any plea of guilty or not guilty at the enquiry nonetheless the Chairperson entered a plea of not guilty for her which is unprecedented in my experience. The applicant disputes both the substantive and procedural fairness of the dismissal. The respondent led evidence through six witnesses.
89. Mr Britz’s testimony gave an overview of various disciplinary infractions alleged to have been committed by the applicant after he conducted an investigation sanctioned by the ADD. That was after the SGB took a decision to expel (eight) 8 learners from the school for misconduct. The ADD considered the recommendations of the Section 9 Committee and revoked the expulsion decision, replacing it with a lighter sanction (see R28-29). That was accordingly communicated to the applicant and the SGB on 19 January 2023. The ADD intimated that even on 31 January 2023 the learners were not back at school.
90. The applicant and the SGB under her guidance would not relent, insisting that the ADD has no authority on the matter in terms of SASA, and that the learners would not be allowed back. It became apparent that the District Director has the authority contrary to what the applicant had consistently maintained. Circular 74 of 2009 of the Department (Re: CONDUCTING DISCIPLINARY HEARINGS AGAINST LEARNERS) buttresses the point. It states that – “In the even the governing body decides to recommend expulsion, such recommendation must be made to the District Director within three (3) days of the decision of the governing body”.
91. Failure to carry out a lawful instruction and insubordination are defined by our Courts as two sides of the same coin. The behaviour may be described as resistance to, or defiance of authority or disobedience, refusal or failure to obey reasonable and lawful instruction. The essential elements of insubordination according to Brassey et al, The New Labour Law, page 430 are as follows – (a) it should be evident that an order was given; (b) the order must be lawful; (c) the reasonableness of the order should be beyond reproach; and (d) the refusal or failure to obey must have been serious enough to warrant dismissal.
92. As a general rule, for insubordination to constitute misconduct justifying a dismissal it has to be shown that the employee deliberately refused to obey a reasonable and lawful instruction by the employer. I noted that the applicant and the SGB went to an extent of securing a legal advice from outside, to challenge the decision of the ADD. I am of the view that at that point the battle lines were drawn. Employees are obliged to respect and obey their employers because lack of respect renders the employment relationship intolerable and disobedience undermines the employer’s authority.
93. I am guided to a particular direction of thought in this regard by the recent Labour Appeal Court Judgement in the matter between the Department of Correctional Services v Kutu and Others (JA27/2024) [2025] ZALAC 17 (handed down on 14 March 2025) on the appropriateness of the dismissal. This Court cited with authority what the same Court in the matter of Palluci Home Depot (Pty) Ltd v Herskowitz and Others, [6] on the case of insubordination, that “…. failure of an employee to comply with a reasonable and lawful instruction of an employer or an employee’s challenge to, or defiance of the authority of the employer may justify a dismissal, provided that it is wilful (deliberate) and serious”.
94. Mr Britz’s testimony was corroborated by the ADD, who concluded his testimony by saying that learners should be allowed to complete their school career, and “if the decision to expel the learners was allowed, they would have ended up as drop outs, adding to the high unemployment rate in the community and associated ills”.
95. Ms Brandt’s testimony was based on counts 2 and 5 of the disciplinary charges. She lamented conflict of interest in instances where the applicant conflated her role as Principal and that of Finance Administrator. Evidence abounds where the applicant signed the receipt book receiving money, donations and making payments/purchases which in terms of the Financial Directives are the roles of a Bookkeeper or Financial Administrator.
96. While the applicant was the Head of the school, I do not find it appropriate that she assumed the roles and responsibilities of the Finance Administrator as has been demonstrated in the respondent’s evidence. It was indicated that Ms. April was the Bookkeeper and she resigned. The process of appointing the Finance Administrator was overdue. That took a long time given the reports compiled by Ms. Brandt on financial mismanagement from 2020 – 2022. The Financial Directives for the NCDOE are very clear on the roles and responsibilities of the SGB members.
97. The applicant is well aware of these prescripts and other statutory provisions to ensure a sound, effective and efficient internal control system for public schools. Her only meaningful defence is that the Directives are non-mandatory, I hold a different view altogether. I had an opportunity to peruse the Directives and observe that in the Introduction it is stated that ‘schools must ensure that the provisions included in the directives are incorporated into the schools finance policy’ and were signed off by the Head of Department (HOD). I am of the opinion that they are peremptory. Further on it is stated as follows – “These Financial Directives finds expression in the South African Schools Act, 84 of 1996 as amended”.
98. I therefore find the assumption that they are non-mandatory to be a deliberate misdirection or nonchalant. It was Ms Brandt’s testimony that remained unchallenged that the SGB must ensure that these guidelines are complied with, including the Treasury regulations. It is also corroborated by both Mr Britz and Ms. Brandt that the services of the applicant’s son, Mr. Hagan Vos were procured without proper procedures being followed. Furthermore, it has not been established that she made the necessary disclosure in that regard.
99. For the person in the position held, she ought to have known better. When the decision was taken to procure the services of her son to install cameras at the school, by the SGB, it could not be established that she recused herself from that meeting. No one could find the minutes of that meeting if it ever took place. The only minutes which were presented did not have that part of her recusal as she averred. If this is not another example of a conflict of interest as submitted by Ms. Brandt, I do not know what to make of it.
100. Conflict of interest is seen by many employers as gross misconduct meriting dismissal. However, a number of cases show that this is not as simple an issue as it may seem. There are number of important conditions that must be satisfied before the dismissal is accepted as appropriate sanction. Among others, the employer should show that the employees ought to be aware or knew of the rule he/she was alleged to have broken.
101. In Numsa and another v Tokiso Dispute Settlement and others JR 2049/09 [2014] ZALCJHB 237 (handed down on 17 June 2014) it was held that the employer bears the overall onus at the end of the arbitration of proving that the dismissal was procedurally and substantively fair on the evidence presented. However, there is no reason in principle why an employee, who after all is claiming the dismissal is unfair, should not present evidence in support of that contention, which the employer must successfully rebut in order to succeed.
102. On the issue of consistency raised by the applicant, I find that the issue was not substantiated and I was not persuaded. Nonetheless it is highly notable that over the years the Courts have exercised caution when dealing with cases where inconsistent application of discipline happened to be an issue. It further held that it is trite that a plea of inconsistency should to a large extent be sparingly upheld by Arbitrators and with or without invitation, an Arbitrator is required to apply a discretion that is upon a consideration of all facts placed before him/her. The reason being that the raising of inconsistency cannot automatically constitute a bar to the imposition of dismissal.
103. For this reason I find that the respondent discharged the onus of showing that the applicant was guilty as charged. The above evidence supports the charges.
104. Having said this I am now required to consider if the sanction in this case was appropriate. In making this determination I am guided by what the court had said in Sidumo and another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC), amongst others.
105. I have also considered that our labour law requires that the issue of progressive discipline be considered. I would have been persuaded by this argument if the applicant had shown remorse instead of denying. Progressive sanctions were designed to bring the employee back into the fold, so as to ensure, by virtue of the particular sanction, that faced with the same situation again, an employee would resist the commission of the wrongdoing upon which act the sanction was imposed.
106. The idea of a progressive sanction is to ensure that an employee can be reintegrated into the embrace of the employer’s organization, in circumstances where the employment relationship can be restored to that which pertained prior to the misconduct. In these circumstances, where there is nothing more than an aggressive denial that the applicant had acted incorrectly, it is extremely difficult to justify a progressive sanction, particularly in a case where the charges are as serious as this. It is further my view that to impose this on the respondent would be unfair. For this reason progressive discipline would not be appropriate in this case.
107. The Code of Good Practice provides that, where employers are considering dismissing an employee, they should be able to justify this drastic sanction by proving that the employee’s misconduct is so serious that it makes continued employment intolerable. In the present case the respondent stated that the trust relationship had been broken. It is an acceptable labour law principle that business risk is predominantly based on the trustworthiness of company employees. A successful business enterprise operates on the basis of trust.
108. In De Beers Consolidated Mines Ltd v CCMA & others [2000] 9 BLLR 995 (LAC) para 22, the court, per Conradie JA, held the following regarding risk management: ‘Dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise’.
109. Finally, the applicant is also disputing procedural irregularity in the sense that she was denied representation and conditions due to her suspension were not favourable to mount a proper response to the allegations. I considered that it was not disputed that the charges were vague and legally technical for an unrepresented employee. I also fail to understand the decision of the respondent to exchange such a huge bundle only on the day of the enquiry if there was no malice or ulterior motives. While Ms. Bantsijang submitted that they shared their bundle earlier with Ms Bester who happened to be her first representative, there was no evidence to substantiate her averment.
110. In the circumstances, I considered Article 4 of Schedule 8 of the LRA and arrive at the decision herein after –
111. Pertaining to the issue of union/legal representation, I am of the view that the issue could have been dealt with differently. The disciplinary code allows for legal representation under certain circumstances. Refusing the applicant the right to a representative is in direct contravention with the Code.
112. In light of the above I find that the respondent had discharged the onus of showing that on a balance of probabilities the applicant’s dismissal is substantively fair in respect of the charges, and procedurally unfair.
113. In the circumstance, I make the award herein after –

AWARD

114. The dismissal of the applicant, Ms. Zelda Zuricka Vos, by the respondent, the Northern Cape Department of Education is substantively fair.
115. Due to the unfairness of the procedure followed, the respondent is ordered to pay the applicant compensation equivalent to six (6) months’ salary (calculated at R 41 831.50 x 6) which is equal to R 250 989.00 (Two hundred and fifty thousand, nine hundred and eighty-nine rand).
116. The respondent must pay the compensation amount stated in paragraph 115 above directly into the applicant’s bank account known to the respondent no later than 15 May 2025.
117. If an arbitration award orders a party to pay a sum of money, the amount earns
     interest from the date of the award at the same rate as the rate prescribed from time to
     time in respect of a judgment debt in terms of section 2 of the Prescribed Rate of
     Interest Act, 1975 (Act No. 55 of 1975), unless the award provides otherwise.

Name: SM. Beesnaar
(ELRC) Arbitrator