In the matter between:
SAOU obo De Beer WA Applicant

Gauteng Department of Education Respondent

Union/Applicant’s representative: Ms K. Labuschagne
Union/Applicant’s address:
PO Box 90120
Garsfontein
Pretoria 0042
Fax: 086 675 4777

Respondent’s representative: Mr M. Tshitshiba
Respondent’s address:
Private Bag x 7710
Johannesburg 2000
Tel: 011 355 1505

DETAILS OF HEARING AND REPRESENTATION
[1] This is an arbitration award issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) and herein after referred to as the LRA. The matter was set-down for arbitration in terms of Section 191(5) (a) of the LRA.

[2] The arbitration hearing was conducted on 18 February 2020 at Gauteng West District Offices, Corner Boshoff & Human Street, Krugersdorp.

[3] The applicant attended the hearing and was represented by, Ms Kinnie Labuschagne, Union Official from SAOU. The respondent was represented by, Mr Mvuleni Tshitshiba, the Employee Relations Official.

[4] The proceedings were conducted in English and were digitally recorded. I also kept handwritten notes.

[5] Both parties submitted bundles of documents marked Annexure “A” and “B”.

[6] The matter was dealt with by way of parties submitting written heads of arguments.

[7] No evidence was led during the sitting.

ISSUE TO BE DECIDED

[8] I am called upon to determine whether or not the dismissal of Mr Willie De Beer was substantively fair. Should I find that the Applicant’s dismissal was substantively unfair, I should decide on the appropriate remedy for such unfairness.
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BACKGROUND TO THE ISSUE
Common cause facts
[9] Both parties proposed and agreed to submit written heads of arguments.
[10] The Applicant was appointed by the Respondent as a Deputy Principal PL-3 Educator since January 1991 until his dismissal on 18 September 2019. His salary at the time of dismissal was R41,805.00 rand per month.
[11] The Applicant appeared before the internal disciplinary hearing where he was charged with the following misconduct:

(a) Charge 1: it is alleged that on 16 October 2017 you deposited an amount of R26,122.30 belonging to Laerskool Danie Theron to your personal credit card account. In view of the above you are thus charged in terms of section 18 (1) (q) of the Employment of Educators Act, 76 of 1998 as amended.
(b) Charge 2: it is alleged that on 20 October 2017 unjustifiably prejudiced the administration, discipline or efficiency of Laerskool Danie Theron in that you organised a trip for learners without the authorisation of the School Governing Body. In view of the above you are thus charged in terms of section 18 (1) (f) of the Employment of Educators Act, 76 of 1998 as amended.

[12] The Applicant was found guilty only on charge 1 and given a two months’ suspension without pay. He was also issued with a final written warning.

[13] The Applicant is not challenging a finding of guilty. The Applicant is challenging the substantive fairness of the dismissal based on the severity of the sanction.

[14] The Applicant appealed the above sanction and the appeal authority imposed a sanction of dismissal instead.
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[15] It is also common cause that on 16 October 2017 the Applicant deposited an amount of R26,122.30 belonging to Laerskool Danie Theron into his personal credit card account. The Applicant later paid back the money to the Respondent on 29 October 2017.

[16] The applicant then referred an alleged unfair dismissal dispute to the Council for conciliation and arbitration.

[17] Conciliation failed and the certificate of non-resolution of the dispute was issued. The matter proceeded to arbitration. In terms of relief, the applicant prayed for reinstatement.

[18] The procedure that was followed before dismissal is not in dispute.

SURVEY OF EVIDENCE AND ARGUMENTS
RESPONDENT’S WRITTEN HEADS OF ARGUMENT

[19] It is common cause that two charges were preferred against the Applicant by the Respondent as
follows:

[20] It is alleged that on 16 October 2017 you deposited an amount of R26 122.30 belonging to Laerskool Danie Theron to your personal credit card account. In view of your actions, you are thus charged with misconduct in terms of section 18 (1) (r) of the Employment of Educators Act, Act 76 of 1998, as amended.

[21] It is alleged that on 20 October 2017 you unjustifiably prejudiced the administration, discipline or efficiency of Laerskool Danie Theron in that you organised a trip for learners without the authorisation of the School Governing Body (SGB). In view of your actions, you are thus charged with misconduct in terms of Section 18(1)(r) of the Employment of Educators Act, Act 76 of 1998 as amended.

[22] Applicant appealed the decision of the Presiding Officer and the Applicant clearly stated that he was not challenging the verdict imposed by Respondent, Applicant was merely only pleading for the lenient sanction. The implementation of verdict and sanction were not implemented by Respondent pending the outcome of the appeal lodged by Applicant to the Appeal Authority who is the Member of the Executive Council (MEC).

[23] Mr. Commissioner, in deciding please take into consideration that Applicant was found guilty of depositing an amount of R26 122. 30 belonging to Laerskool Danie Theron into his personal credit account on 16 October 2017. Applicant is not challenging the verdict imposed by the Presiding Officer but is challenging the sanction of two months’ suspension without pay imposed by the Presiding Officer in terms of Section 18 (3)(f) of Employment of Educators Act, Act 76 of 1998 as amended.

[24] Applicant lodged an appeal with the Member of the Executive Council referred hereunder as MEC, requesting that the two months’ suspension be changed to a reasonable fine payable over a period which would have been in terms of Section 18 (3)(e) of the afore mentioned Act (Please refer to page 24 of Applicant’s bundle under the heading ‘The desired outcome of the appeal is: In considering the Appeal, the MEC viewed the Presiding Officer sanction of two months’ suspension without pay in terms of the afore mentioned provisions of the said Act as being lenient and did therefore saw no reason to interfere with the finding and sanction of the Presiding Officer as requested by Applicant.

[25] The MEC, however decided to amend the sanction of two months’ suspension without pay and impose a sanction of dismissal because there was sufficient evidence of substantive nature more so; the offence committed is of serious nature. The offence justifies a sanction of dismissal as prescribed by Section 18(5)(a) which states that ‘an educator may be dismissed if he or she is found guilty of dishonesty or commits an act of dishonesty in terms of Section 18 (1) (ee). Applicant occupied a Deputy Principal’s post which is a management post and should have acted as an example to fellow educators.

DID THE MEC ACT WITHIN THE PRESRIPTS OF THE LAW?

[26] Schedule 2 item 9 (5) of Employment of Educators Act 76 of 1998 as amended, states that the Member of the Executive Council or the Minister, as the case may be, must consider the appeal, and may –
(a) uphold the appeal
(b) in case of misconduct contemplated in section 18, amend the sanction; or
(c) dismiss the appeal

[27] Schedule 2 item 9(6) of Employment of Educators Act states that ‘The employer must immediately implement the decision of the Member of the Executive Council or the Minister, as the case may be. It seems the MEC considered (b) above in coming to a decision to dismiss Applicant and the Respondent then implemented the decision of MEC in terms of Schedule 2 item 9(6) as stated above.

SUBMISSION FOR CONSIDERATION AND DETERMINATION BY COMMISSIONER

[28] There is no justification to deposit public money into an individual’s account. Applicant was a Deputy Principal who also acted as a Principal from February to October 2017 He should have known that is wrong to deposit school money in his personal credit card account.

[29] In Applicant’s letter dated 8 November 2017 on page 33, he states that the school driver was also asked to bank school money therefore the money should have been given to the driver to bank if he was unable to do so. The deposits of R10 900.00 and R15222.30 amounting to R26 122.30 were not the first deposits he has made, there were other deposits that were made by Applicant before and he knew what procedures are followed when depositing school funds (Please refer to his letter on page 33 paragraph 4 of Respondent Bundle). There was therefore no justification to deposit the school money in his personal credit card account. In any case Commissioner, there is no reason for the respondent to over deliberate on this point because the Applicant admitted that he is not challenging the verdict of the Respondent because he knew what he did was wrong but was pleading for leniency as he had financial responsibilities. Mr. Commissioner as stated under heading ‘DID THE MEC ACT WITHIN THE LAW’, there is no doubt that the MEC acted within his powers and there is therefore nothing wrong with his decision and you can therefore not interfere with his decision.

SUBSTANTIVE FAIRNESS

[30] Mr. Commissioner, it is my view that substantive issues were thoroughly dealt with in above paragraphs. I would however want to conclude the issue by referring Mr. Commissioner to ‘In Sidumo and Another v Rustenburg Platinum Ltd and Others 2008 (2) SA 24 (CC), the Court held at para [78] “In approaching the dismissal dispute impartially a commissioner will take into account the totality of circumstances. He or she will necessary take into the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of employee’s challenge to the dismissal.

[31] In view of the case law above, Mr. Commissioner I pray that you dismiss the application of Applicant for compensation, re-employment or reinstatement.

APPLICANT’S WRITTEN HEADS OF ARGUMENT

Mr Willie de Beer

[32] The applicant was employed by the Respondent as Deputy Principal PL-3 Educator. The misconduct happened during the period as Acting Principal. The Applicant was charged with two counts of misconduct but found guilty on the first charge. The Applicant was charged in terms of section 18(1)(q) and found guilty1. He was suspended for two months without a salary.
[33] The Applicant appealed the suspension of two months’ sanction without salary requesting a fine to be deducted over a period of time. The MEC dismissed the Applicant on 18 September 2019 based on section 18(5)(a) read with section 18(1) (ee) of the Employment of Educators Act 76 of 1998 (as amended).

BACKGROUND RELATING TO THE MISCONDUCT

[34] The Applicant was the deputy principal at Laer Gedenkskool Danie Theron since 2007, responsible for discipline at the school as well as sport management. The then principal informed them during mid-January 2017 that he is going to retire at the end of January 2017. The Applicant acted as principal from 1 February 2017 until 31 December 2017. There was a care-taker principal during the first term of 2018. He acted again as principal from the beginning of the second term until May 2018, when the new principal started at the school.

[35] There was no hand-over meeting when the previous principal retired. During the first term they
realised that the financial management of the school had certain flaws. An investigation was
instituted and it revealed that there was mismanagement of school finances over the last 3
years of the term of the previous principal. The then financial officer, who was also the treasurer
of the SGB suddenly resigned during May 2017.The Applicant, who was the deputy principal responsible for discipline and sport management without any financial experience, was appointed as acting principal at that stage, and an administrative assistant had to take over as financial officer at the school. According to the school’s financial policy, a maximum amount of R4000,00 may be kept overnight in the school’s safe. The school did not have any debit or credit card. They were limited to deposit or withdraw money only during business hours of the bank.

[36] On 16 October 2017, an amount of R26 122.30 cash was handed to him. He then decided to deposit it into his personal credit card account. The money was eventually transferred back into the school’s account. The merits of the misconduct were properly considered during the disciplinary hearing.

THE VERDICT

[37] The verdict was guilty and a sanction of a suspension of two months without salary was awarded. The HOD, Mr Edward Moshuwe who authorised the outcome of the disciplinary hearing, also confirmed the right to appeal in terms of section 25(2) of the Employment of Educators Act, Act 76 of 1998 as amended, which provides that “an educator or an employer has the right to appeal to the Member of the Executive Council; against the findings by the presiding officer of a disciplinary hearing and against the sanction imposed in terms of section 18(3)(e) to (i).”

[38] Section 18(3) of the Employment of Educators Act, 76 of 1998 states the following:
“If, after having followed the procedure contemplated in subsection (2), a finding is made that the
educator committed misconduct as contemplated in subsection (1), the employer may, in
accordance with the disciplinary code and procedures contained in Schedule 2, impose a sanction
of- (a) counselling; (b) a verbal warning; (c) a written warning; (d) a final written warning; (e) a fine not exceeding one month’s salary; (f) suspension without pay for a period not exceeding three months; (g) demotion; (h) a combination of the sanctions referred to in paragraphs (a) to (f); or (i) dismissal, if the nature or extent of the misconduct warrants dismissal.”

THE APPEAL

[39] The applicant did not appeal the finding of the Presiding officer, he however plead with the MEC to consider a more lenient fine payable over a period of time which “will enable him to cover his financial responsibilities while still providing his service to his employer, the Gauteng Department of Education.”

[40] The Applicant then motivate his plea- “Some of these grounds are that he is relatively young, he has 28 years of continuous service and this is his first offence. He was in an acting principal capacity for a few months after the principal retired after a very short notice period. In addition to this he had very little support or training with regard to the financial matters of the school (this includes the absence of a proper handover procedure) when he assumed the duties of an acting principal. He was unaware of the scope of his duties as acting principal and submit that the errors he made, at least in part, stemmed from this lack of support.

[41] Section 25(2) of the Employment of Educators Act, Act 76 of 1998 as amended, provides that “an educator or an employer has the right to appeal to the Member of the Executive Council; against the findings by the presiding officer of a disciplinary hearing and against the sanction imposed in terms of section 18(3)(e) to (i).”

[42] In AUSA obo Melville / SA Airways Technical (Pty) Ltd [2002] 6 BALR573 (AMSSA) the Arbitrator
reminds us that the purpose of an appeal is not to allow the employer to have a “second bite at
the cherry”, but rather to allow the employee to try and persuade higher authority that the
sanction handed down by the chairperson of the hearing was unfair.

[43] The Respondent has the right to appeal the sanction. The mere fact that it did not appeal the outcome, proves that the HOD agreed with the sanction of a suspension of two months without salary. There was no evidence of a breakdown in the trust relationship between the employer and employee.

[44] It is not disputed that the MEC has the authority to impose a stricter sanction than already imposed. However, any such provision must be fair, reasonable and lawful. It is pointless allowing the appeal chairperson – in this instance the MEC – limitless powers; that will make a mockery of your disciplinary hearing process.

[45] The MEC dismissed the Applicant on the provisions of a sanction of dismissal as provided for Section 18(1) (ee), as stated in his Outcome of the Appeal. However, the MEC’s actions are ultra vires – he does not have the authority to act outside the boundaries of the provisions of the Employment of Educators Act, Act 76 of 1998 as amended. There is no existing provision in law allowing Mr Lesufi to change the nature of a charge in order to enable him to impose a sanction not provided for the specific transgression. The drafting of a charge sheet is the sole responsibility of the employer – thus the HOD.

CONCLUSION

[46] When considering mitigating and/or aggravating factors, the presiding officer must take cognizance of the circumstances before, during and after the act of misconduct. (The Mitigation will be attached, for your kind consideration). The Applicant was the Acting Principal when the misconduct occurred. A permanent principal has been appointed to the school but could not fill the position immediately. He was again appointed as acting principal for another period until the newly appointed principal could assume her duties. It is evident that there was no breakdown in the trust relationship between the applicant and the respondent.

[47] The outcome of the disciplinary hearing and the sanction imposed indicated that the Employer (Respondent) was satisfied with a sanction of two months’ suspension without salary. It did not appeal the outcome. It is also evident that the Applicant accepted the verdict as guilty and requested lenience regarding the payment of the fine imposed when appealing the sanction. The sanction of dismissal was too harsh.

[48] Schedule 2: Disciplinary code and procedures for educators states the following: “…that discipline is a corrective and not a punitive measure and that discipline must be applied in a prompt, fair, consistent and just manner…”. The applicant was dismissed on 18 September 2019. The arbitration hearing was scheduled for 18 February 2020. He is already 5 months without any salary. It will be futile to request any down payment of a fine. He already has been punished over and over again for the misconduct.

RELIEF SOUGHT

[49] The applicant prays that the commissioner would make the following award: Retrospective reinstatement from 18 September 2019; ii. Full remuneration (medical and pension contributions) for the period from 18 November 2019 to date; iii. his annual service bonus payable during December 2019.

ANALYSIS OF EVIDENCE AND ARGUMENT

[50] Although I have considered all the evidence I will only refer in this award to those aspects relevant to determine the dispute, as I am required in terms of s 138(7) of the LRA to provide an award with brief reasons.

[51] I have considered all the evidence and argument presented during this arbitration. In terms of Section 188 of the LRA, “a dismissal that is not automatically unfair, is unfair if the employer fails to prove –
(a) That the reason for dismissal is a fair reason
(i) related to the employee’s conduct or capacity; or
(b) that the dismissal was effected in accordance with a fair procedure.”

[52] Section 192 (1) & (2) of the Act stipulates that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal, if the existence of the dismissal is established, the employer must prove that the dismissal is fair.

[53] I am convinced by the Respondent’s argument that there was sufficient evidence of substantive nature justifying a sanction of dismissal as prescribed by Section 18 (5) (a) of the Employment of Educator’s Act 76 of 1998. The reason I am convinced is because the Applicant conceded that on 16 October 2017 he deposited an amount of R26,122.30 belonging to Laerskool Danie Theron into his personal credit card account. The Applicant admitted that he was aware that this was not allowed and it was illegal to deposit money belonging to the School into his own personal account. It was only after a deposit slip was discovered that there was financial irregularity. It transpired that the money was not deposited into the school account. The applicant took thirteen days before he could return the money. He only returned the money on 29 October 2017after intervention by the District Office. I am persuaded by the Respondent’s argument that the offence committed is of serious nature.

[54] Schedule 2, Clause 9 (5) (b) of the Act, stipulates that.” The Member of the Executive Council or the Minister, as the case may be, must consider the appeal, and may – (b) in cases of misconduct contemplated in section 18, amend the sanction. Based on this provision of the Act, it is my finding that the Appeal Authority (MEC), on his own accord, has the power to change the sanction to that of dismissal without the employer appealing.

[55] Schedule 2, Clause 9 (3) provides that “On receipt of the application referred to in sub item (1), the Member of the Executive Council or the Minister, as the case may be, must request the employer to provide him or her with a copy of the record of the proceedings and any other relevant documentation”.

[56] Schedule 2, Clause 9(4) of the Act provides that “If the Member of the Executive Council or the Minister, as the case may be, chooses to allow further representations by the educator, his or her representative or the employer, he or she must notify the educator or the employer respectively of the date, time and place where such representation must be made”. In my view, it is probable that the Appeal Authority (MEC) had sufficient information before him. Hence he opted not invoke the provisions of Schedule 2, Clause 9 (4) of the Act as stipulated above. In my view, the gravity of the misconduct befits the sanction of dismissal.

[57] Under these circumstances, it is my finding that a sanction of dismissal was a fair and an appropriate sanction. Schedule 2 item 9 (5) of Employment of Educators Act 76 of 1998 as amended, states that the Member of the Executive Council or the Minister, as the case may be, must consider the appeal, and may – (b) in case of misconduct contemplated in section 18, amend the sanction. It is my finding that the Respondent acted within the boundaries of the provisions of the Employment of Educators Act, Act 76 of 1998 in changing a sanction of two months’ suspension without pay and imposing a sanction of dismissal. It is my finding that the decision to dismiss the Applicant was fair, reasonable and lawful.

[58] I reject the Applicant’s argument that the trust relationship is not broken. The reason for my rejection is because the gravity of the misconduct goes to the heart of the employment relationship and it is destructive of it. I disagree with the Applicant that the decision of the MEC and/ or Appeal Authority make a mockery of its disciplinary hearing process.

[59] I reject the Applicant’s argument that the Appeal Authority (MEC) actions are ultra vires and the MEC does not have the authority to act outside the boundaries of the provisions of the Employment of Educators Act, Act 76 of 1998 as amended. The reason for my rejection is that the MEC acted within the boundaries of the provisions of the Employment of Educators Act, Act 76 of 1998 as amended, especially Schedule 2 item 9 (5) (b) of Employment of Educators Act 76 of 1998.
[60] In Miyambo v CCMA and others (2010) 31 ILJ 2031 (LAC) an employee was found in possession of scrap metal in a random security check. He was not authorized to have it and was aware the employer was going to sell it for its own benefit. The Commissioner found that the employee committed theft but the sanction was too severe. The Labour Court overturned the finding. On appeal the legal representative of the employee conceded the he committed theft but argued the employee had 25 years of service and a clean disciplinary record. In its finding the Court emphasized the requirement of the trust relationship in relation to the employer’s operational requirements. The Court with approval referred to the matter of De Beer Consolidated Mines Ltd v CCMA and others [2000] 9 BLLR 995 and to Shoprite Checkers (Pty) Ltd v CCMA and others [2008] 9 BLLR (LAC) which justified a strict approach to dishonest conduct in the workplace on the basis of the employer’s operational requirements.

[61] In light of the analysis of material evidence and arguments in totality, the respondent succeeded, on a balance of probability, to discharge the onus of proving that the dismissal was substantively fair.

AWARD

[62] The dismissal of the applicant is substantively fair.
[63] The Applicant is not entitled to any relief.
[64] The Applicant’s referral of a dispute is dismissed.

ELRC – Part-time Commissioner
Paul Phundu