IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No ELRC233-24/25GP

In the arbitration proceedings between:

NEHEMIAH ZAMBUKO Applicant
And

HOD, DEPARTMENT OF EDUCATION, GP Respondent

PANELIST:
Ntjatja Klaas Aphane
HEARD:
31 July 2024, 20 & 21 August 2024

DELIVERED:

10 September 2024

ARBITRATION AWARD

Applicant’s representative: Advocate Mogole Mphahlele (Legal Representative) from Limpopo Society of Advocates, briefed by Moila Fhutu Attorneys.
Respondent’s representative: Minah Ralioma (Labour Relations Manager) Department of Education: Gauteng.
DETAILS OF THE HEARING AND REPRESENTATION:

1. This is the arbitration award in the arbitration proceedings concerning an alleged unfair labour practice in relation to unfair conduct of disciplinary action dispute between Nehemiah Zambuko, the Applicant, and Gauteng Provincial Government: Department of Basic Education, the Respondent.
2. The dispute was referred to the ELRC in terms of section 186(2) of the Labour Relations Act 66 of 1995 (as amended) (the LRA).
3. The arbitration was scheduled and held on 31 July 2024, 20 and 21 August 2024, all parties and the witnesses physically attended at district offices of the Department of Education at Tshwane Wonderboom junction, and it was held under the auspices of the ELRC in terms of section 186(5) (a) of the LRA.
4. The Applicant appeared in person and he was legally represented by his legal representative, Adv Mogole Mphahlele, instructed by Moila Fhutu Attorneys, whilst the Respondent was present and represented by its employee, Minah Ralioma, with Madeleine Grobler, as an observer.
5. The award is issued in terms of section 138(7) of the LRA.
6. The Applicant was legally represented and therefore I adopted an adversarial approach to resolve the dispute.
7. The arbitration proceedings were digitally recorded and handwritten notes were taken.
8. Mahlori Kubayi was present on 20 & 21 August 2024, to provide translation services if needs be.
9. The relief sought by the Applicant was the setting aside of the guilty verdict and the punitive suspension of one month without salary.

THE ISSUES TO BE DECIDED:

10. I must determine whether the Respondent has committed an alleged unfair labour practice when the Applicant was found guilty of the charge and sanction short of dismissal that was pronounced on the Applicant.
11. I must also decide whether the punitive suspension of one month without salary was substantively and procedurally fair or not. If unfair, I must determine the appropriate relief.
12. I must also determine if there were procedural irregularities with regards to provision of translation services to the Applicant’s party.

THE BACKGROUND TO THE DISPUTE:

13. The Applicant is a deputy principal in the employ of the Respondent, based at New Eersterus Secondary School, at Marokolong / Ramotse, in the Hammanskraal areas.
14. The Applicant was subjected to a disciplinary hearing during 2023, found guilty and a punitive suspension was meted out to him namely one month’s suspension without salary, consequent to an internal disciplinary process.
15. The Applicant submitted an appeal against the findings and the sanction. The appeal authority confirmed the sanction and the Applicant’s appeal was dismissed on 04 June 22024.
16. The Applicant referred the alleged unfair labour practice dispute to the ELRC on 11 June 2024.
17. The dispute was scheduled for conciliation, virtually, on 27 June 2024, the conciliation outcome certificate was issued stating that the dispute remained unresolved. The parties held a pre-arbitration meeting and signed the minutes on 27 June 2024.
18. The dispute was scheduled for arbitration process on 31 July 2024, and was part heard. The dispute was rescheduled for arbitration process on 20 and 21 August 2024.
19. The Applicant’s legal representative and the Respondent’s representative requested to submit written closing arguments on 28 August 2024. The parties duly complied.
20. The Applicant testified in support of his case (Nehemiah Zambuko) and the Applicant’s legal representative called one witness (Thembi Phindile Zulu), whilst the Respondent’s representative called five (5) witnesses (Diana Margaretha Loots, Alphirah Ramasela Ptjeng, Musawenkosi Ndlovu, Masetla Lazarus Madiga, and Stephens Masombuka.
21. The Respondent’s representative submitted a bundle of documents, bundle “R”, consisting of 29 pages, whilst the Applicant’s legal representative submitted a bundle of documents, bundle, “A”, consisting of pages 1 to 9, later supplemented to 1 to 16.

SURVEY OF THE EVIDENCE:
22. I wish to state from the onset, that not all evidence presented will be set out hereunder. Only a summary of the relevant evidence is contained herein.

THE APPLICANT’S CASE

23. The Applicant was the first witness to testify in support of his case and testified that he was an employee of the Respondent, employed as a deputy principal at PL3, at Lethamaga Secondary School. He started at Lethamaga on 01 August 2019. The alleged misconduct took place whilst at New Eersterus Secondary School.
24. The charge of misconduct was preferred against the Applicant as per R18, which reads as, it is alleged that during July 2023 while on duty at New Eersterus Secondary School, you disclosed confidential information regarding a short-listed candidate, Mulsiwa William at the school to the SES Mathematics, Diana M Loots.
25. He knows Diana M Loots as a subject advisor for Mathematics and he did not disclose any information in relations to the shortlisting process. He was part of the shortlisting process panel of the Departmental Head of Mathematics and science. He was invited by the Principal to be part of the panel for shortlisting process. The shortlisting process took place on 19 June 2023. During the shortlisting process, he had only been at the school for approximately two weeks. He started at the school on 05 June 2023. The panel was made up of the Principal, Deputy Principal, Madiga, the Mathematics subject advisor, the SGB parental component and the Presidential Youth Initiatives member.
26. The Applicant was elected to be the chairperson of the shortlisting process panel. Zodwa was the scribe for the shortlisting panel. The criteria was agreed upon on as to how to score the shortlisted applicants and numbers were used instead of the name of the applicants, to be fair to all applicants.
27. During his interaction with the Principal, the Principal raised a concern about the capabilities of the grade 12 mathematics teacher.
28. The Mathematic subject advisor, Madiga, requested to be excused after the shortlisting process, and the Applicant followed him outside. The Applicant went to the bathroom first and followed Madiga outside to his car. Outside, the two had casual interactions because they were once colleagues, and they discussed the principal issues with mathematics teacher. He discussed his concern that the mathematics teacher, was well versed and competent, but the Principal had his reservations. He was once a mathematics teacher himself so he was confident that the mathematics teacher had the necessary mathematics capacities.
29. He knows Diana M Loots as one of the mathematics subject advisors, a colleague of Madiga, within the Tshwane North District. He called Diana M Loots to discuss and request data on analysis of mathematics results to get an understanding of his school performance in relations to other schools in the district. This was telephonic conversation. Diana M Loots could not provide him with the mathematics analysed results data because not all results were collected and submitted for analysis.
30. He never discussed the shortlisting process with Diana M Loots but their discussion centred on the bad blood between the principal and the mathematics teacher. He pleaded for her intervention to calm the tension between the mathematics teacher and the principal. He did not know the outcome of the shortlisting process. Their views were that William Mulsiwa was not well treated by the management of the school. He did not know if William Mulsiwa was shortlisted or not during his telephonic conversation with Diana M Loots.
31. He went to the shortlisting room to fetch his bag as the shortlisting was finalised and left. He had a brief discussion with the principal about curriculum issues and not the shortlisting process. The school was closing on 20 June 2024, and they were released early that day around 10:00am. The shortlisted candidates were invited for an interviews at a later date.
32. On 19 July 2023, it was the interviews date and he was not involved in the interview process. During the school management teams meeting, they were notified that the interviews were to be held at the school on that day.
33. The Principal called him and they discussed the call to Diana M Loots, and he explained to the Principal that he took counsel from Madiga to call Diana M Loots in order to understand the challenges the Principal highlighted with regards to the competencies and value add of mathematics teaching at the school. The Principal was angry that he called Diana M Loots.
34. The Applicant requested to be excused from the interviewing process and the Principal conceded to the Applicant’s requested to be excused as the noblest and rational decision. To be precise the Principal said, “It is a noble call you are making”. There was no discussion with the Principal about the shortlisting processes.
35. The Principal requested him to provide him with a written recusal letter to share with other interviews panel members. The Applicant handed a handwritten recusal letter to the Principal.

36. He heard for the first time, about a possible breach or disclosure of the confidential shortlisting process from Mahlogonolo Mashaba, of the Labour Relations unit. The Applicant explained to Mahlogonolo Mashaba that there was no breach of any confidentiality with regard to the short-listing process.
37. Mahlogonolo Mashaba showed him documents that were mainly used in his disciplinary process, minutes of the shortlisting process, both handwritten and typed, on 26 July 2023. He signed the minutes on 26 July 2023. The minutes were signed on different dates by the short-listing panel.
38. He was also impressed by Mahlogonolo Mashaba that the Principal is threatened by the Applicant’s academic achievements, hence the possible consequent management processes against the Applicant. He was also advised to reverse the cross transfer and duly complied on 10 August 2023, through written correspondence and the cross transfer was reversed.
39. The disciplinary procedure was flouted because at the prehearing, his SADTU representative, Ms Pitjeng, requested the services of the interpreter from Setswana to English and English to Setswana. That was to enable Ms Pitjeng to follow the process and represent him well in a language she was conversant with. Mahlogonolo Mashaba declined to provide his representative with the services of the interpreter, and the reasons provided was that they were all professionals.
40. The second witness for the Applicant was Thembi Phindile Zulu, who testified under oath that she is currently an SGB member but during the previous SGB, she was a treasurer but was not voted back as a treasurer so she is just a member of the SGB.

41. She was a member of the shortlisting process panel on 19 June 2023. Other panel members were Baloyi, Mothoa, Principal, Madiga, Zambuko and Zodwa. They started by setting out house rules and agreeing on the criteria to be followed during the short-listing process. The Applicant was elected as the chairperson of the shortlisting process. It was suggested that numbers be used instead of the name of the candidates for fairness purposes.
42. Upon finalising the shortlisting process, the short-listed candidates were called by the Principal to invite them to the interview process. The CV of the Applicant was with the Principal and Madiga.
43. The Applicant left with Madiga, after Madiga requested to be excused to attend other matters, they left with their two (2) bags. They were talking and laughing when they left the shortlisting room. They stood outside next to the car. The shortlisting process was done when they left the shortlisting room. She was doing the scoring with the Applicant. The Applicant did not eat because he was outside with Madiga for a long time.
44. She did not sign the handwritten minutes after the shortlisting but was called by Mothoa to come to the school and to sign the handwritten minutes so that the file can be submitted where it should be submitted. It was during the school recess when he was called to come and sign.
45. They signed the confidentiality form so there is no way the Applicant can divulge the confidential information.
46. If during the signing, there is an error, she will correct the error and append her signature on the corrected error.
47. There is a tendency at the school to be requested and at times forced to sign the documents without reading those documents. She reported this wrong practices to the senior management of the Department.

THE RESPONDENT’S CASE:

48. The Respondent’s first witness was Diana Margaretha Loots, who testified under oath that she is an employee of the Respondent, employed as Subject Educational Specialist. Her core responsibilities is to support learners, teachers at school and monitoring examinations. She also analyses mathematics examination results. Madiga is her colleague, and they share schools in the district.
49. She started interacting with the Applicant for the first last year, 2023, wherein the Applicant called her and introduced himself as the new Deputy Principal at New Eersterus. The Applicant called her and requested information or analysis of the Mathematics results and during the conversation the Applicant explained that he was bothered by the fact that there is a Departmental head for Mathematics, Makamu, but there was shortlisting of another Departmental Head for Mathematics and Science at New Eersterus.
50. She asked the Applicant about William Musiwa, her teacher, who was a good teacher, but his competencies were not recognized, and asked if he was shortlisted and the Applicant confirmed that he was one of the shortlisted candidates for the position.
51. She expressed her happiness that William Musiwa, was recognized and shortlisted, to be precise she was used the word, “elated by the shortlisting of her pet teacher, William Musiwa”. She called Madiga and told him that William Musiwa was finally getting recognition and was shortlisted. She was just sharing the good news with Madiga.
52. She explained to Madiga that the Applicant told her and was surprised when Madiga told her that it is confidential information, and she was not supposed to know about that information. Madiga requested her to put their conversation in writing and told her that he would report that to the Principal. She wrote her statement and gave it to the Principal.
53. During the internal disciplinary hearing she was crying and hugged the Applicant and told him that when she narrated the shortlisting to Madiga, she was not aware that it would get to that level. The Applicant acknowledged that she was sorry and responded that, it is okay. The Applicant did not deny that he disclosed the confidential shortlisting process of William Musiwa to her.
54. She asked in response, how would she know about the shortlisting of William Musiwa, and the advertised position of the Department Head of Mathematics and Science at New Eersterust and the shortlisting process?
55. The Applicant called him on 07 June 2024 and requested her to be his witness and she agreed. On 11 June 2024, the Applicant called again and indicated to her that it would be better if she does not mention the shortlisting as his witness.

56. She told the Applicant that she would not lie about the conversation and the shortlisting of the Departmental Head for Mathematics and Science at New Eersterus, and she would not change her statement.
57. The Principal called her and asked her to submit the affidavit about the conversation in relation to the shortlisting at New Eersterust.
58. It was never her intention to cause the Applicant harm and apologized to the Applicant that her excitement about the shortlisting of William Musiwa resulted in his disciplinary action.
59. The second witness for the Respondent was Alphirah Ramasela Pitjeng. She testified under oath that she is a teacher at Ramabele Secondary School since 14 January 1992. She is a teacher for learners at grade 8, 9, 10, 11 and 12. She is a natural science and life orientation teacher. The medium of instruction is English for those grades. She is also a deputy secretary of SADTU at Golaganang branch.
60. She represented the Applicant during the disciplinary hearing, and she was confident in the language English and did not need the services of the interpreter. During the prehearing meeting, they hinted on securing the services of the translator for members of the SGB who were to testify.

61. The Applicant and his legal representative requested her to lie during the arbitration process that she needed the services of the interpreter. She refused to lie, and she was told in order to make the case of the Applicant stronger, she must testified dishonestly and she refused. She was instructed to use Setswana on the date of the arbitration to demonstrate to the arbitration process that she is not conversant in English, but she refused to misrepresent facts.
62. She then called the chairperson of her trade union, SADTU, to notify her leadership that she is not willing to lie as per request and instruction of the Applicant and his legal representative. The leadership of her trade union encouraged her to be honest and ethical.
63. On 20 August 2024, in the morning before the arbitration process, she was asked again to lie and she refused, and she was then instructed to leave. The Applicant and his legal representative would not call her as his witness, if she insisted on honesty.
64. The third witness for the Respondent was Musawenkosi Ndlovu, who testified that he is an employee of the Respondent, employed as a Senior Education Specialist: Labour Relations.
65. He presided over the internal disciplinary process of the Applicant. He asked parties if there were any preliminary issues and there was none. There was no request for the services of the interpreter for the Applicant and his representative or any of the witnesses at the disciplinary hearing.

66. The fourth witness for the Respondent was Masetla Lazarus Madiga, who testified that he was an employee of the Respondent, employed as Mathematics subject advisor, and that he worked closely with Dian M Loots, as they share schools in the district.
67. He was requested to assist with the shortlisting of the Departmental Head Mathematics and Science at New Eersterus Secondary School. All shortlisting panel members signed the confidentiality form, committing themselves to secrecy of all information during the shortlisting processes.
68. He was called by Diana M Loots to tell him that she is happy that her pet teacher was ultimately getting the recognition he deserves and was shortlisted as the Departmental Head at New Eersterus. He was taken aback as all panel members signed confidentiality letters. He told Diana that she was not supposed to know about the shortlisting and would certainly escalate the matter to the Principal.
69. He was told that the Applicant disclosed to the Diana the shortlisting of William Musiwa. He notified the Principal, and consequent corrective action was taken.
70. He left after all shortlisting processes were done and the Principal was to call and invite the shortlisted candidates for the interview process. He enjoyed a cordial professional relationship with the Applicant.
71. During cross examination, it was put to the witness that he once threatened to shoot the Applicant, and that is the reasons the Applicant was charged with misconduct. He indicated that there was no such thing, and the Applicant was lying.
72. The fifth witness for the Respondent was Stephens Masombuka, who testified under oath that he is an employee of the Respondent, employed as a School Principal for New Eersterus.
73. He knows the Applicant and negotiated the cross transfer of the Applicant to come to the New Eersterus Secondary School from Lethamaga Secondary School.
74. He was called by Madiga, who told him that the Applicant breached confidentiality by disclosing the shortlisting of William Mulsiwa to Diana M Loots. He requested written statements from Madiga and Diana M Loots.
75. On the day of the interview, he discussed the disclosure with the Applicant and it was agreed that the Applicant should recuse himself so as not to taint the interview processes. The Applicant wrote a statement to recuse himself and the interview process continued without the Applicant.

76. The Applicant conceded agreeing to disclose the shortlisting information to Diana M Loots and the Applicant took leave of absence on 19 July 2023.
77. There is nothing wrong with both handwritten minutes and typed version save to say that there were human errors that were rectified.
78. The Applicant is not a threat at all because he is equally qualified for his role.

ANALYSIS OF EVIDENCE AND ARGUMENTS:

79. In considering the merits of this dispute, I had regard to the provisions of the LRA, the ELRC Dispute Resolution Procedure, and relevant case law.
80. Everyone has the right to a fair labour practices. This cardinal principle is enshrined in section 23 of the Constitution of the Republic of South Africa Act 108 of 1996. This right is well entrenched by section 185 of the LRA, which provide the right not to be unfairly dismissed or subjected to unfair labour practices.
81. In the case of Sidumo and another v Rustenburg Platinum Mines (Pty) Ltd and others (2007) 28 ILJ 2405 (CC) 2007) 12 BLLR 1907 (CC), the court held that, “one of the primary objects of the LRA is to give effect to and to regulate the fundamental rights conferred by section 23 of the Constitution, including the right to fair labour practices enshrined in section 23(1).
82. The Applicant was subjected to a disciplinary hearing, found guilty and issued with a punitive sanction of one month without salary. He was charged with disclosing confidential information about the shortlisting process of the Department Head of Mathematics and Science at New Eersterus, in particular that William Mulsiwa was shortlisted to Diana M Loots.
83. It is not in dispute that the Applicant was chairing the shortlisting panel on 19 June 2023, with all panel members confirmed as a true reflection of the event of the day.
84. It was the evidence of Thembi Phindile Zulu, Madiga and Masombuka that the panel concluded its shortlisting process before Madiga left and was followed by the Applicant to his car outside the shortlisting room. It was only the Applicant that disputed that fact despite the fact that he was chairing the meeting and therefore could not leave the meeting as chair before concluding its business.
85. The Applicant corroborated Thembi that he came back after a long period whilst other panel members were eating, and the shortlisted candidates called to invite them for interviews.

86. There was overwhelming evidence that the Applicant called Diana Loots divulged the shortlisting outcome despite appending his signature on a confidentiality form. Out of excitement, Diana notify Madiga, who then escalated the matter to the Principal.
87. This was done during the telephonic conversation between the Applicant and Diana when the Applicant called to request mathematics analysis of results. This the Applicant confirmed with Masombuka during the conversation resulting in Masombuka saying to the Applicant that was the noblest decision when the Applicant recused himself from the interview process.
88. Diana apologized to the Applicant who responded by saying it was ok. On 07 and 11June 2024, the Applicant called Diana and pleaded with her to testify but not mention the short listing incidences. Diana refused to change her statement and lie. Diana and Madiga submitted written statements to the Principal about the shortlisting disclosure.
89. What was shocking was when the Applicant pleaded with Diana Loots and Alphirah to misrepresent facts to the arbitration process in order change the verdict and the sanction. He called Diana on 07 and 11 June 2024. Even on the date of the arbitration, the Applicant pleaded with Alphirah Pitjeng to lie, forcing Pitjeng to request counsel from SADTU.
90. On the alleged procedural irregularities, the labour relation officer and the presiding officer corroborated Alphira Pitjeng that there was no need and no request for the services of the interpreter. The Applicant pleaded with Alphirah to lie at the arbitration proceeding, and communicate in the Setswana language only, in order to create the wrong impression that she was clueless and could not represent the Applicant adequately.

91. The Respondent’s witnesses provided credible, probable and corroborated evidence whilst the Applicant’s testimony was riddled with deception, downright lies and denials of facts and evidence.
92. An arbitration process is a new (de novo) hearing, which means that the evidence concerning the reason of the Respondent’s decisions (which is challenged or in dispute) is heard afresh. That means I must determine the fairness of the Respondent’s decision on the evidence admitted and submissions made at the arbitration.
93. The Deputy Principal is the eyes and ears of the Respondent, but the same Applicant requested his fellow employees to lie and testify wrongfully against his employer. What kind of conduct is this from the Applicant? Honesty is sacrosanct in the employment relationship.
94. In the National Union of Mineworkers of South Africa obo Nganezi & others v Dunlop Mixing and Technical Services (Pty) limited & others (2019) 40 ILJ 1957 (CC) para 624, the Court held that the employment relationship is grounded on the fundamental values of trust, confidence, reliability, loyalty, mutual respect, and good faith. Consequently, these fundamental values form the heart of the employment relationship, which ought to be exercised by both the employee and the employer at all material times during the subsistence of their relationship.
95. The Applicant failed dismally on this above sacrosanct value. The less said about the Applicant’s conduct the better.
96. In the Publication, Principles pf Practice Labour Law, issue 7, (2005) paragraph 245, it is held that, “When rendering services, the employee must ensure that his services are executed in good faith and that they in no destruct from the relationship of trust”.
97. In Department of Labour v GPSSBC (2010) 231 ILJ 1313 (LAC), the Labour Appeal Court confirmed the principle that a sanction aimed at correction and rehabilitation is of no purpose when an employee refuses to acknowledge the wrongfulness of his / her conduct.
98. It goes without saying that the Applicant does not appreciate the wrongfulness of his conduct, and its impact on colleagues, impact which is not positive at all.
99. This misconduct is of a serious nature and warrants the Respondent taking corrective measures against the Applicant, more so that the Applicant was employed in a position of trust to build capacity in the educational sector.

100. The Applicant has failed to prove an unfair labour practice short of dismissal on a balance of probabilities.
101. Therefore, the Respondent cannot be faulted substantively and procedurally for the actions that it took.
Award
In the premises I make the following award
102. The verdict and the sanction imposed on the Applicant was fair.
103. The Applicants dispute referral is dismissed.
104. There is no order as to costs.

Thus, done and signed at Pretoria, dated 10 September 2024.