DATE OF SITTING: 10th and 13th AUGUST 2004

IN THE MATTER BETWEEN

SADTU obo Marumo Employee Party

AND

DOE-LP Employer Party

AWARD

DETAILS OF THE HEARING AND REPRESENTATION

The hearing was held on the 10th and 13th August 2004, at the Department of Education Headquarters, Polokwane, Voorwaarts building. The Respondent was represented by Ms Mafunda N and the Applicant was represented by Mr Langa LM SADTU Representative.

THE ISSUE TO BE DECIDED

To determine whether the decision of the SG was within the ambit of the collective agreement or not, and if I find it to be unfair I should give an appropriate relief sought.

BACKGROUND TO THE ISSUE IN DISPUTE

The Applicant was charged by the Respondent after it was discovered that he cashed the cheque amounting to R15040.00 and the money was for feeding scheme programme. The Applicant was stationed at Abram Sibasa Primary School. The Applicant was subjected to the disciplinary hearing and he was found guilty to all the charges. The chairperson appointed pronounced his decision after he evaluated all the submissions from both parties.
SURVEY OF EVIDENCE AND ARGUMENT

Both Parties did not bring any witness only documentations were submitted before me and each Party argued its position on the basis of documents presented.

The hearing was held on the 14th November 2001 and Mr Makgopa KM was the chairperson of the hearing and the Applicant admitted guilty to all the charges. The Applicant representative was given the opportunity to mitigate. The Applicant Party mitigated that the chairperson must punish the Applicant with the corrective punishment.

The Respondent’s position was that it viewed the conduct of the Applicant as a serious act of misconduct which the chairperson should consider dismissal as the alternative sanction. On the 19th November 2001 the chairperson pronounced his decision to the SG of the Department and on the 23rd April 2002 the Applicant was informed that he was discharged from the Department. His appeal was also dismissed by the MEC.

ANALYSIS OF EVIDENCE AND ARGUMENT

Misconduct is one of the three grounds recognized by the LRA to justify the dismissal of employees. It is a common cause that the Applicant has committed fraud and also admitted during the hearing. The Respondent views the issue of fraud or theft as a very serious and sensitive issue which warrant dismissal. The chairperson of the hearing was appointed to hear the presentations of both Parties but it was an unfortunate situation because the Applicant admitted guilty to all the charges presented.

The Chairperson was appointed to hear the merits and demerits of the case and in terms of EEA of 1998, the Chairperson must act in accordance with disciplinary code and procedure. The Respondent Party has given the Chairperson the powers to deal with the issue as allowed by the Code of Good Practice. The Chairperson was afforded the opportunity to evaluate all the submissions submitted before him by both Parties and he was then in the good position to pronounce his decision after evaluating all the evidence submitted before him.

The Chairperson was appointed by the Respondent after the Respondent was satisfied that the Chairperson’s credibility is not questionable and he was entrusted with that authority of a Chairperson without any reservation.

Looking at the cases cited by the Respondent’s Representative, there are no connection between this case and the others mentioned or presented. In this case the Chairperson’s verdict was not enforced by the Respondent while the others cite cases, the Chairperson ruled against the Applicants and the Employers acted in accordance without deviating chairpersons `s ruling but the Applicants were not satisfied with the decision by the Chairperson and the Employers.

The Respondent’s position in this case is questionable. If it was the position of the Respondent from the onset why did the Respondent wasted time by appointing a rubber stamp Chairperson than to dismiss the Applicant without trying to play seek and hide game. The Respondent has used the disciplinary hearing as a mockery in order to enhance its position.

The Chairperson evaluated all the facts, evidence, mitigation and aggravating circumstances of this case and he pronounced his decision from the well informed position. The decision taken by the Respondent was out of order because the Respondent was not well informed with all the facts related to the Chairperson’s decision.

I therefore convinced that the Respondent’s conduct was abusive of power and on the balance of probability the Applicant deserves to be subjected under the decision of the Chairperson.

AWARD

I therefore order the following:

1 That the Chairperson’s decision must be implemented without any alteration.

2 The Applicant should be treated inline with the decision of the Chairperson with all the benefits entitled to him in terms of the Chairperson’s pronouncement.

3 This Award should be implemented within 30 days as from the date of this Award.

Nephalela Enoch
ELRC: PANELIST

EDUCATION LABOUR RELATIONS COUNCIL

ARBITRATION AWARD

CASE NUMBER PSES 84-04/05 LP
APPLICANT MARUMO (SADTU)
RESPONDENT DEPARTMENT OF EDUCATION LP
NATURE CONDITIONS OF EMPLOYMENT (BENEFITS)
ARBITRATOR N ENOCH
DATE OF ARBITRATION 10 & 13 AUGUST 2004
VENUE POLOKWANE

REPRESENTATION:

APPLICANT MR L M LANGA (SADTU)
RESPONDENT MS N MAFUNDA

AWARD:

1 That the Chairperson’s decision must be implemented without any alteration.
2 The Applicant should be treated inline with the decision of the Chairperson with all the benefits entitled to him in terms of the Chairperson’s pronouncement.
3 This Award should be implemented within 30 days as from the date of this Award.

DATE OF AWARD