08 July 2026 – ELRC1032 –24/25GP

0:00 29:35

IN THE ELRC ARBITRATION
BETWEEN:

P BANGO “the Applicant”

and

DEPARTMENT OF EDUCATION – GAUTENG PROVINCE “the Respondent”
ARBITRATION AWARD

Case Number: ELRC1032 – 24/25GP
Last date of arbitration: 2 June 2026
Final closing arguments submitted in writing on: 11 June 2026
Date of award: 8 July 2026 (extension granted)

COEN HAVENGA
Senior ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
Details of hearing and representation

This arbitration took place in terms of the referral of the matter by the Applicant to the Education Labour Relations Council. It was heard over several days at the offices of the Respondent in Johannesburg. The last day of the hearing was on 2 June 2026. The parties submitted written closing arguments on 11 June 2026.
The Applicant is Mr Bango, P, represented by Mr Mphahlele, M, an advocate, following a successful unopposed application for legal representation. The Respondent is the Gauteng Department of Education (“GDE”), represented by Mr Mafuya, M.

Issue to be decided

The parties submitted a signed a pre-arbitration minute which forms part of the record. The Labour Appeal Court in Alexkor Ltd v Mervyn Carstens (JA7/24) [2025] ZALAC 28 as recently as on 15 May 2025 confirmed the binding nature of pre-arbitration minutes and clarified that once signed, these minutes carry legal weight, remain in force and cannot simply be amended during the arbitration. The dismissal of the Applicant is not in dispute. The Applicant confirmed in the pre-arbitration minute that only the substantive fairness of his dismissal was to be determined . The Applicant did not dispute the procedural fairness of his dismissal.

Background to the dispute

The Applicant was employed as principal at Northview High School (“the School”). He has been employed by the Respondent since 1 April 2013. The Applicant’s appeal against the guilty finding and sanction was unsuccessful, and he received his letter of termination on 20 December 2024. By the time the applicant was charged with the alleged misconduct the Applicant had been demoted to Deputy Principal, which demotion was unrelated to the misconduct allegations. The demotion was the result of an award that set aside the Applicant’s appointment as principal.
The Applicant was charged with 4 allegations of contravention of section 18(1) of the Employment of Educators Act 76 of 1998 (“the EEA”), in that:

5.1. The Applicant contravened section 18(1)(b) of the Employment of Educators Act 76 of 1998 (the “EEA”) on 7 March 2023 he unlawfully purchased goods for personal use from Makro to the value of R23 497,00, using the School’s funds;
5.2. The Applicant contravened section 18(1)(b) of the Employment of Educators Act 76 of 1998 (the “EEA”) on 7 March 2023 as the acting principal he unlawfully used the School’s funds to pay an amount on R1396,00 for his TV license;
5.3. The Applicant contravened section 18(1)(a) of the Employment of Educators Act 76 of 1998 (the “EEA”) in that during the financial year 2023/2024 as the acting principal he failed to provide supporting documents for school funds utilised to the total amount of R16 770,57; and
5.4. The Applicant contravened section 18(1)(a) of the Employment of Educators Act 76 of 1998 (the “EEA”) in that during the financial year 2023/2024 during his tenure as acting principal of the School cash withdrawals and “cash send” to the value of R25 280,00 were made while the School bank card was in his possession.

At the start of the arbitration the Respondent applied for the admission of hearsay evidence of a deceased witness in terms of the exception to the hearsay rule as provided for in The Law of Evidence Amendment Act 45 of 1998. The evidence contained in an affidavit and the transcript of the disciplinary hearing was provisionally allowed for the parties to argue the admissibility at the conclusion of the arbitration hearing.
The Applicant applied for an inspection in loco at the School, which application was opposed by the Respondent on the basis of safety concerns following a shooting incident in the offices of the School. The application was granted with the directive that the necessary safety and security arrangements were made with the SAPS.
During the inspection on 5 August 2025 the parties went to the School’s media centre where there was a walk-in safe. The keys to the safe were held by the then acting deputy principal, Mr Williamson. The safe was opened and the Applicant pointed out a flat screen smart Hisense TV with barcode number 3964732697023C2B0889R211, a HP laptop computer with ID number 5CD243884G and serial number 6KIZIEA#ACQ (no barcode on the outside) and an ultra-link projector (which was brought from the science class to the media centre by Mr Williamson) with barcode number 0187742242004-3.
The asset register was not inspected. Mr Williamson stated that the keys to the safe are kept with him always, and he is the responsible person for all the equipment in the safe. The principal does not have access to the safe. The projector was not in the safe as it was used in the science class.
The Respondent also applied for a witness to testify virtually due to the witness being under psychiatric treatment and not able to face the Applicant. The application was granted for the reasons as reflected in the record.
The Applicant denied all the allegations.
The relief the Applicant seeks from this arbitration hearing is retrospective reinstatement without loss of benefits.

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

The Respondent submitted the documents contained in bundles A, AA, D and F.
Pamela Ditodi (“Ditodi”) testified virtually under oath that she was the bursar of the School. She explained her duties. The SGB chairperson in 2023 was Mr Thabo Manamela (“Manamela”) who passed away in February 2025. The SGB purchased two laptops in January 2023 at Makro for the Applicant and Mr Wildschut (“Wildschut”), the two deputy principals. Both declined the laptops. She returned the laptops to Makro, and the costs of the purchase were credited into the School Makro card. Around March 2024 the Applicant called her while she was on sick leave to accompany him to Makro. He told her to take the slips of the credit. They went to Makro with his car. At Makro the Applicant went to the TV section and selected a TV. He also took a laptop and projector.
At the checkout point they were asked for a TV license. The Applicant said he did not have one, and asked Ditodi whether she had one. She confirmed that the TV license was last paid up in 2025. The cashier checked her TV license and said the amount due was R1396,00. The Applicant then continued to pay for the arrears of the TV license and the three items he selected with the School funds.
They left Makro with the TV, laptop and projector and went to the car park. The TV did not fit into his car. The Applicant requested a driver of a van to take the television to his house, and she could hear him giving the driver the address other than that of the school. The laptop and projector were left in his car, and he did not take it into the School for her to register in the asset register. As bursar she was responsible to register newly purchased assets in the asset register. She read the barcodes appearing on the tax invoice into the record.
She compared the barcodes with the photos taken during the inspection of the items. The barcodes reflected there differed from the barcodes of the items the Applicant bought at Makro in her presence. She testified that the TV, projector and the laptop found at school when inspection was done are not the ones bought from Makro. She did not see the items at the School.
The Applicant did not follow the process of obtaining approval of the finance committee of the SGB based on quotes and completed requisition forms as was the required process. If the Applicant alleged it was not bought for personal use, then she was supposed to capture the serial numbers in the asset register if it had been bought for school use.
Her TV license was paid up to date by the Applicant using School funds and then used by him to buy the TV. She did not benefit from it. The Applicant asked to use her license, and she did not ask him to pay it up to date. He paid an amount of R1396,00.
Bundle AA reflected the requisition forms she completed in respect of money that was paid out from the School account by the Applicant without completing requisition forms or providing slips or other supporting documents. She asked for the supporting documents, but he never provided them. the SGB through Manamela requested the Applicant to submit the slips, but he did not. She made out the blank requisition forms to keep record of the money used.
The money reflected in allegation 4 was used through cash withdrawals and cash send without being approved by the SGB. Circular 2 of 2021 clearly stated that cash send and ewallet was not allowed, and petty cash withdrawals had a limit of R3000,00 per month. The Applicant did not comply with Circular 2 of 2021.
In cross-examination Ditodi largely confirmed her evidence in chief. She denied that she and Manamela made documents disappear because the Applicant refused to buy books at inflated prices. It was not true that Manamela said in her presence that “somebody was going to cry”. She denied that she deliberately pulled requisition forms out to put the Applicant in trouble.
Mario Mandlazi (“Mandlazi”) testified under oath that he was the DCES and the investigator in this matter. He gave the Applicant an opportunity to respond to the allegations in writing. Although he expected a detailed response, the Applicant did not respond. The Applicant responded by stating that he would comply with whatever decision the Respondent made. He did not address the complaints at all.
He paid the school a visit three times investigating the allegations brought by Manamela. He was never shown the TV, the projector or the laptop. When he checked the asset register, they were not entered therein. He also found evidence of cash send and cash withdrawals which are against policy Circular 2 of 2021 as cash withdrawals are allowed for petty cash only and to the tune of R3000 a month. He also testified that Wildschut was the deputy principal in 2025 and he was shot 6 times in his office at the School. He was still off on sick leave.
The items were not captured in the School asset register. He could not find it at the School. Wildschut did not see the items purchased by the Applicant.
During cross-examination Mandlazi testified that the Applicant benefitted personally from the items which he found had not been delivered to the School. The Applicant had the opportunity to show the items to Mandlazi, but he did not. The Applicant used School funds irregularly to pay up Ditodi’s TV license to allow him to buy a TV irregularly with School funds. The fact that allegation 2 referred to the Applicant’s TV license, is probably a typing error.

Applicant’s case

Pumile Bango, the Applicant, testified under oath that he was appointed in 2019 as a head of Department (HOH) at the school. In January 2023 he acted as the principal as the principal retired. He acted from that time to the end of the term. He was appointed on a permanent basis as the principal from 1 June 2024 until he was dismissed on 28 November 2024.
He testified that on 7 March 2023 he went to Makro with Ditodi to exchange the two laptops which he and Wildschut did not want. He took a TV, a projector and a cheaper laptop. The TV could not fit into his car, and he requested a person with a van in the parking at Makro to deliver it to the School. The van followed him to the school, and they off loaded the goods including the TV. The TV was taken to the media centre and the projector, and the laptop were taken to the office. Ditodi left for home on arrival at the school as she was off that day.
He did not tell the van driver to deliver the TV to his house in front of Ditodi. The items are used at the School. The delivery of the items was witnessed by the security man at the gate and Boikanyo, the SGB member who assisted in offloading the TV.
He denied that because the items are not entered into the asset register, they are therefore not at the School. He further testified that the school did not have an asset register up to the time when he appeared in the internal hearing when the question of the register was raised. Upon going back to the school, he then ordered that a register be compiled. Mandlazi never asked him about the whereabouts of the items.
The Applicant denied that the TV license paid for was his as per charge sheet. He agreed with Ditodi that it was her license which was used to make the purchase of the TV possible as it is a requirement. He testified that it was practice at the school to use employees to pay for example, vehicle licenses. At the time he did not see anything wrong with that.
The Applicant denied that he failed to provide supporting documents to transactions that he made using the School bank card to the value of R16 770,57. He stated that some of the transactions were catering for SGB meetings and others were for SIP which the school ran over the school holidays and they catered for learners who attended. Although the card allocated to him was used, educators and SGB members were the ones who made the transactions. The people completed the requisition forms and attached the receipts/support documents and gave them to Ditodi to sign and let the principal and SGB chairman or treasurer sign and then file them. As far as he is concerned that process was followed and she filed them, including those that he handled.
The Applicant testified that the problem arose when Manamela and Ditodi ordered expensive books and refused to look for a cheaper supplier. When he refused to sign, Manamela said “someone is going to cry”. They then made up the allegations and removed supporting documents from the file.
During cross-examination the Applicant testified that it was not required that any items bought must be reported to the SGB before it was distributed in the School. He agreed that it made sense to capture newly bought items in an asset register, but it did not happen in his time. It now made sense. He has never seen an asset register at the School. He agreed that his representative put it to Ditodi that she had the duty to register it in the asset register. He was not responsible for the way the representatives asked the questions.
They took the two declined laptops with them when they went to Makro. He could not explain why it was not put to Ditodi when she testified it had already been returned and credited when they went to Makro. They did not purchase anything at Makro, they merely exchanged the items. He did not follow the prescribed process for the purchase of the items because it was an exchange and not a purchase. He could not explain why he then referred in his appeal to items that were purchased.
The Applicant testified that he realised in the disciplinary hearing that he acted irregularly but he did not know it at the time. He was not properly trained, and he was not aware of Circular 2 of 2021. He would have pleaded guilty to allegation 4 if it was the only allegation. The rest of the allegations were a vendetta against him. He agreed that Manamela recommended him for the principal post and could not explain why he would do that if he had a vendetta against him to have him dismissed.
He assumed that Tebogo took the items to Ditodi’s office, he did not see it.
Edmonds Boikanyo (“Boikanyo”) testified under oath that he is the one, with the driver of the van, who took the TV to the media centre and put it in the safe. He also stated that the same TV was used during the induction of Grade 8 learners in 2023. He testified that he made some purchases for SGB catering and he completed his part on the requisition and gave them to Ditodi who was supposed to file them.
During cross-examination he testified that the SGB was not informed about the assets.
Aaron Malepe (“Malepe”) testified under oath he was the current chairperson of the SGB. He saw the items at the School in 2024. It was never reported to him.
During cross-examination he testified that he was not part of the executive and could not testify to the procedures that were followed or not.
Livingstone Williamson testified that he used the projector, and that the TV was used at grade 8 induction as well as during matric farewell.
During cross-examination Williamson testified that the SGB were never informed of the purchase of the TV and projector because the SGB never had a sitting before the purchase was made, and the Applicant never informed anyone after he bought it. The SGB must be informed when goods are purchased. He could not say whether the TV and projector he pointed out during the inspection were the same ones that were bought in 2023.

Analysis of evidence and argument

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.
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 disputed only the substantive fairness of his dismissal, and the Respondent is therefore required to prove on a balance of probabilities that the dismissal was substantively fair.
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)).
The Applicant was charged with 4 allegations of contravention of section 18(1) of the Employment of Educators Act 76 of 1998 (“the EEA”), in that:
48.1. The Applicant contravened section 18(1)(b) of the Employment of Educators Act 76 of 1998 (the “EEA”) on 7 March 2023 he unlawfully purchased goods for personal use from Makro to the value of R23 497,00, using the School’s funds;
48.2. The Applicant contravened section 18(1)(b) of the Employment of Educators Act 76 of 1998 (the “EEA”) on 7 March 2023 as the acting principal he unlawfully used the School’s funds to pay an amount on R1396,00 for his TV license;
48.3. The Applicant contravened section 18(1)(a) of the Employment of Educators Act 76 of 1998 (the “EEA”) in that during the financial year 2023/2024 as the acting principal he failed to provide supporting documents for school funds utilised to the total amount of R16 770,57; and
48.4. The Applicant contravened section 18(1)(a) of the Employment of Educators Act 76 of 1998 (the “EEA”) in that during the financial year 2023/2024 during his tenure as acting principal of the School cash withdrawals and “cash send” to the value of R25 280,00 were made while the School bank card was in his possession.
Substantive fairness
From the outset I find that the wording of allegation 2 where it referred to “his” TV license, is merely a typing error, and that all the evidence from both Respondent and Applicant is clear that it was the TV license of Ditodi that was paid up to date by the Applicant. The Applicant had not been prejudiced in any way by the typing error, and he was at all relevant times aware that it was supposed to read “Ditodi’s” TV license.
At the start of the arbitration the Respondent applied for the admission of hearsay evidence of a deceased witness in terms of the exception to the hearsay rule as provided for in The Law of Evidence Amendment Act 45 of 1998. The evidence contained in an affidavit and the transcript of the disciplinary hearing was provisionally allowed for the parties to argue the admissibility at the conclusion of the arbitration hearing. Neither party however presented any argument in closing in this regard, and therefore no further finding is required.
Section 37(6) of the South African Schools Act 84 of 1996 (“SASA”), states that the school fund, all proceeds thereof and any other assets of the public school must be used only for –
(a) educational purposes, at or in connection with such school;
(b) educational purposes, at or in connection with another public school, by agreement with such other public school and with the consent of the Head of Department (“HOD”);
(c) the performance of the functions of the governing body (“SGB”); or
(d) another educational purpose agreed between the governing body and the Head of department.
Section 16A of the South African Schools Act 84 of 1996 state 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.
It is common cause that the Applicant accompanied by Ditodi purchased the following items from Makro Woodmead: a 65″ Hisense television, an HP Silver Laptop and an LCD Projector. The Applicant’s belated argument that it in fact was an exchange and not a purchase, was a feeble attempt to try and justify his non-compliance with basic financial protocols.
The Applicant was a very evasive witness. His allegation that the allegations were fabricated by Ditodi and Manamela was not substantiated by any plausible evidence. In fact, he could not explain why Manamela would have recommended him for the principal post if he had such vendetta against him. The Applicant’s representative put it to Ditodi in cross-examination that she removed the properly completed requisition forms from the file to implicate the Applicant, and that the Applicant would call the relevant people to testify to that, but never called any such witnesses, apart from Boikanyo who merely testified that he gave it to Ditodi .
I accept on a balance of probabilities that the items that were bought by the Applicant were not the items that were alleged to be the ones in the safe room. Even if I accept to the benefit of the Applicant that it was the same items, it does not diminish the fact that the items were bought by the Applicant without following any financial control protocols, and in contravention of the requirements of Circular 2 of 2021, the SASA and the EEA.
It is not in dispute that the School’s funds were used by the Applicant for the purchases, and to pay the TV license of Ditodi up to date. The Applicant testified in detail to the procurement process, that the SGB must convene a meeting, minutes must be recorded reflecting the resolution of the purchase, the principal as the member of Finance Committee must obtain price quotations, requisition forms, invoice / receipts. This testimony refutes his argument that he was not properly trained. The Applicant also testified that he would have pleaded guilty to allegation 4 and thereby conceded that he made the cash send and cash withdrawals contrary to the provisions of Circular 2 of 2021.
The fact that the Applicant flaunted these financial control measures of public funds, substantiates the Respondent’s argument that the items were bought for the Applicant’s personal use.
Despite being offered several opportunities during the investigation to show the items, the Applicant failed to do so. The minimal knowledge of Boikanyo, Malepe and Williamson, the witnesses called by the Applicant, does not really assist the Applicant’s case. Boikanyo testified that the SGB was not informed about the assets bought by the Applicant. Malepe testified that the items were never reported to him. He also testified that he was not part of the executive and could not testify to the procedures that were followed or not. Williamson testified that the SGB were never informed of the purchase of the TV and projector because the SGB never had a sitting before the purchase was made, and the Applicant never informed anyone after he bought it. He testified that the SGB must be informed when goods are purchased. He could not say whether the TV and projector he pointed out during the inspection were the same ones that were bought in 2023.
The Applicant denied the existence of an asset register, but his representative put it to Ditodi that it was her responsibility to complete the asset register. I find it improbable that he would make such a statement if indeed no asset register existed or was used by the School.
I am satisfied that in respect of allegations 1, 2, 3, and 4 the Respondent proved on a balance of probabilities that the Applicant did commit the misconduct he was found guilty of, i.e. contravention of section 18(1)(a) and (b) of the EEA respectively, and that the Applicant contravened a rule or standard regulating conduct in, or of relevance to, the workplace.
As alluded to above, I find the Applicant’s argument that he did not have knowledge of the rules, highly improbable. It is also so that employees are expected to know that certain behaviour is simply unacceptable and cannot in such instance rely on the argument that he was not aware of the rule or policy. Flaunting of the strict control measures of public funds, as in this case, is an example of such behaviour.
The Applicant did not challenge the consistent application of disciplinary action by the Respondent.
In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness. The Code states that one of the requirements of a fair dismissal for misconduct is that the dismissal must be an “appropriate” remedy, in the light of the facts of the case. The courts have accepted that the ultimate justification for employers’ power to impose discipline flows from their right to manage their business effectively. (See De Beers Consolidated Mines Ltd v CCMA & Others [2000] 21 ILJ 1051 (LAC) at 1058F-G). The Applicant’s misconduct must be seen against the background that he is a senior employee in a position of trust.
The misconduct of the Applicant must be seen in a serious light. The mismanagement of school funds affects the capacity of the Department of Education to exercise its mandate efficiently, which would not be in the interest of the learners of the school. Section 28(2) of the Constitution of the Republic of South Africa 108 of 1996 provides that a child’s best interests are of paramount importance in every matter concerning the child. This is a factor that I keep in mind as surely it was not in the best interest of the learners of the school that school funds are mismanaged in such a serious manner.
All the offences relate to a callous disregard for established best practice policies and procedures. This is unacceptable behaviour by someone in control of a school, and the custodian of public funds of the school, with the responsibility of overseeing proper management.
The Respondent’s argument that the misconduct cases emanating from maladministration and mismanagement of school finances have become prevalent in the Department, is uncontested. The factor of deterrence through appropriate sanctions weighs heavily in this matter. The lack of remorse displayed by the Applicant makes progressive discipline inappropriate. The Applicant was in a position of trust which needs accountability. Mitigating factors such as a clean record and long service are unlikely to restore the trust relationship especially if the employee shows no remorse and consistently deny wrongdoing as in casu.
I had due regard to the principles set out in the case of Edcon Ltd v Pillemer NO & others [2010] 1 BLLR 1 (SCA) which underlines the principle that the employer has the burden of proof to show that the trust relationship has broken down irretrievably. The evidence shows that the trust has been broken down irretrievably and leaves no option for the application of progressive discipline. The fact that the Applicant still attempts to justify his actions and sees no wrong in using school funds in the manner which he did, or use school assets for personal benefit, justifies the loss of trust argued by the Respondent. The fact that he cannot apprehend the unacceptableness of his conduct, means that he cannot be trusted not to do so again, which leaves no room for progressive discipline.
The Applicant’s years of service cannot outweigh the gravity and seriousness of his offences. The Labour Appeal Court has held that long service cannot in itself provide a basis for rendering a dismissal unfair. See De Beers Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC).
I therefore find that the sanction of dismissal is fair and appropriate in the circumstances.
I accordingly find the Applicant’s dismissal substantively fair.