IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD (VIRTUALLY)

Case No: ELRC 411-24/25NW

In the matter between

SAOU obo WHEELER Applicant

and

DEPARTMENT OF EDUCATION: NORTHWEST PROVINCE Respondent

ARBITRATOR: Monde Boyce

HEARD: 19 September 2024

CLOSING ARGUMENTS: 29 September 2024

DATE OF AWARD: 06 October 2024

AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION:

[1] This matter was set down for arbitration on 19 September 2024 and was finalised on the same date. The matter was scheduled to proceed virtually on the abovementioned date. Miss Coetzee-Myburg, a trade union official from the trade union SAOU, appeared for the applicant while Mr Matshaba, the Labour Relations Officer in the department, appeared for the respondent.

[2] Only the employee submitted a bundle, the employer did not submit a bundle. An interpreter was not arranged owing to parties having not made a request for one. The proceedings, while held virtually, were digitally recorded, and the record of the proceedings has since been filed with the Council. Typed notes were also taken. At the conclusion of the process, parties requested to file written closing arguments, a request I duly granted. While I received the applicant’s written submission on 25 September 2024, I was forwarded the respondent’s written closing heads of argument on the 29th of September 2024.

THE ISSUE TO BE DECIDED:

[3] I am required to decide whether the respondent committed unfair labour practice by issuing the applicant a final written warning, which is disciplinary action short of dismissal as envisaged by Section 186(2)(b) of the Labour Relations Act 66 of 1995 as amended (LRA), and I am called upon to make the appropriate award.

THE BACKGROUND TO THE DISPUTE:

[4] The applicant is currently employed as a Principal at Laerskool Buhrmannsdrift. She, on 30 July 2024, was issued a final written warning for alleged misconduct where she was said to have failed to ensure that a candidate who was appointed as an Educator Assistant at her school was not a grant recipient or studying through the Fundza Lushaka bursary, a requirement for all candidates that were to be appointed on the Presidential Youth Employment Initiative (PYEI) programme. Unhappy with the warning, the applicant, through her trade union, referred an unfair labour practice dispute to the ELRC for conciliation. The dispute could not be resolved at conciliation, and the applicant referred the dispute for arbitration. She seeks, as remedy, setting aside of the final written warning issued against her.

SURVEY OF EVIDENCE AND ARGUMENT:

The Applicants’ evidence

[5] The applicant, Miss Margaretha Mariana Elizabeth Wheeler, testified that on 30 July 2024, she was called by Miss Mimi, an Administrative Assistant at the Tswaranang Circuit office and was told to bring a witness with her. On a question she posed on why she needed to bring a witness, she was told that there were documents that she needed to sign. She travelled to Mahikeng with her Administrative Assistant. On arrival at the circuit office, she was handed a letter by Mimi and on asking Mimi what the letter was all about, Mimi told her to read the letter herself. When she read the letter, she established that it was a final written warning letter, and which letter she refused to sign because she was not guilty. Mimi told her she could not refuse to sign the letter since it was just a letter that would go onto her personal file and was to be discarded after six (06) months. Mimi further told her that fifty (50) other Principals received the letters. She signed the letter and got her Administrative Assistant to sign as a witness, but she told Mimi that she was not satisfied with the letter and that she was going to contact her trade union.

[6] On her returning back to the school, she spoke to Dr Kruger, the secretary of her trade union in the Northwest Province and also emailed him the final written warning letter. Dr Kruger wrote a letter on her behalf to the District Director, Mr Ntlabathi, but she did not receive any response from Mr Ntlabathi. She believed that she followed every step that the department set out in the appointment of the candidates referred to her school. According to the list she was given, she believed that the department went through the list and that the applicants sent to her had been approved by the department. She followed every procedure that was set out by the department. She had constituted a shortlisting panel and went through the list that the department gave the school, phoned references and phoned all the applicants that were suitable for her school. There was no indication on the list given to her school by the department that any of the applicants were either in education studying or receiving SRD grants. In the manual sent by the department, it was stated that the applicant should not be receiving any grants. All the applicants were asked if they were receiving any grants and whether they were studying, Miss Nomsa Moseki, in respect of which the final written warning was issued, answered that she was not studying and that she was not receiving any grants. Her curriculum vitae (CV) also did not state that she was receiving any grants or studying. Miss Moseki was appointed as an Educator Assistant on the Presidential Youth Employment Initiative (PYEI) until December 2023.

The Respondent’s Submissions

[7] The respondent did not lead evidence.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

Procedural fairness

[8] The applicant’s challenge on the procedure followed was based on her having not been given an opportunity to answer to the allegations before the final written warning was issued. It is common cause that no formal process was followed in the form of a formal disciplinary hearing when the final written warning was issued. In its arguments, the respondent did not address the question of whether it afforded the applicant an opportunity to be heard prior to issuing the final written warning. While it is trite law that an employer does not need to convene a formal disciplinary hearing, it is still a trite requirement in law that an employee must be given an opportunity to be heard before any adverse finding is made. Section 185(b) of the LRA provides that an employee has the right not to be subjected to unfair labour practice, and this, in my considered view, includes an employee being given an opportunity to make representations on why a warning that has an effect of tarnishing his or her disciplinary record should not be issued.

[9] In the present case, the applicant was not afforded an opportunity to make representations on why the final written warning should not be issued and was not even aware, at the time she was told to go and collect a letter at the District Director’s office, that she had committed misconduct that warranted issuance of the final written warning. Even if I were to accept that the respondent was entitled to discipline the applicant, a concession the applicant also made under cross examination, it cannot be said to be fair for any disciplinary action to be taken without an employee being given an opportunity to be heard. Section 33(1) of the Constitution of the Republic of South Africa provides that:

“Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.”

[10] While Schedule 2 of the Employment of Educators Act 76 of 1998 provides that a formal hearing may be dispensed with, and a final written warning issued where the extent of the misconduct warrants it without a formal hearing being convened same cannot be said to include unilateral issuance of such warnings without employees being given an opportunity to be heard. Serving before me is not a case where the respondent called the applicant in, informed her of the allegations against her, hear what she had to say in response and, to the extent it (respondent) believed that the applicant committed the misconduct as alleged, proceed to issue the final written warning and advise the applicant accordingly. Had the respondent followed this route, the applicant’s challenge as to procedure would fall to be outrightly dismissed. But this was not the case. Because the respondent did not lead evidence in rebuttal of the claim by the applicant, I was left in no position to understand or know the difficulty the respondent had in following a simple procedural route, which is that of first affording the applicant an opportunity to be heard before imposing the sanction of final written warning. By failing to afford the applicant an opportunity to be heard prior to issuing the final written warning, I find the respondent’s conduct to have been unfair and to have constituted unfair labour practice.

Substantive fairness

[11] The version by the applicant was that she did not commit the misconduct that resulted in the respondent issuing her with a final written warning. While the respondent, in its closing arguments, asserted that the applicant committed misconduct, it is my finding that that decision does fall to be interfered with if one has regard to the evidence presented by the applicant. According to the applicant, her school received a list from the department, and that list (which I have also gleaned) lists the names of candidates and their particulars. Amongst the indications on the list are answers by the candidates themselves on the question, among which are whether they are recipients of any bursary or SRD Grants. The respondent did not lead evidence, and I thus do not have the benefit of understanding whether, besides the list sent to the schools, any express guidelines and instructions were given on how to go about ascertaining whether the candidates for the educator assistant posts were receiving a bursary or SRD grant. Thus, I cannot fault the applicant where she believed that on being sent the list, the respondent had already done the vetting.

[12] The respondent further did not lead any evidence as to the guidance given on what additional measures the school needed to take where to verify whether candidates had made truthful disclosures on the disclosure forms. Thus, where Miss Nomsa Mereki indicated on the disclosure form when asked whether she was a recipient of a bursary or a grant, that she was not, the applicant was provided with no additional measure or guide by the respondent to establish truthfulness of her (Miss Mereki) declaration. Had the allegations against the applicant been tested by way of her being given an opportunity to answer to the allegations, she perhaps would have presented as such information as would show that she did nothing wrong. On the basis of evidence before me, I cannot conclude that the final written warning was warranted, and it is my finding that the decision to issue the applicant with the final written warning does fall to be interfered with.

[13] I need mention that, in the present case, the applicant bore the onus. While it is trite that onus never shifts and while the party that bears the onus is required to discharge the onus, a need does arise for a party not burdened with the onus to discharge evidentiary burden. In other words, to the extent the party that bears the onus has set out its version to the extent that rebuttal is required or necessary lest it be believed, the party that does not bear the onus must present evidence in rebuttal. There was no agreement by the parties that this dispute be decided on stated cases and, as such, it was not enough for the respondent not to lead evidence and merely rely on the written closing arguments. But even if there was such an agreement, and this matter was decided on stated cases, I would still find that the respondent dismally failed to set out a good defense. Not only did the respondent fail to follow a fair procedure in issuing the final written warning, but evidence led by the applicant suggests that there were no justifiable or valid reasons for issuance of the said final written warning. In the circumstances, it is my finding that the conduct by the respondent was unfair and constituted unfair labour practice as claimed by the applicant, and it is my finding that the applicant is accordingly entitled to the remedy she seeks.

[14] In the premises, I make the following award:

AWARD

[15] The final written warning issued against the applicant on 30 July 2024 is set aside.

Monde Boyce
Panelist: ELRC