11 April 2025 -ELRC597-24/25FS

Case Number: ELRC597-24/25FS
Commissioner: Carlton Johnson
Date of Ruling: 08 April 2025

In the MATTER between

TSHEDISO MONYANE
(/Applicant)

And

FREE STATE EDUCATION DEPARTMENT
(Respondent)

DETAILS OF HEARING AND REPRESENTATION

The arbitration hearing in this matter took place under the auspices of the ELRC on 28 March 2025. The applicant appeared in person and the respondent was represented by department official, Solomon Moloy.
The proceedings were digitally recorded.

THE ISSUE IN DISPUTE

I must determine whether the dismissal of the applicant was substantively and procedurally fair.

BACKGROUND TO THE ISSUE

The applicant was employed with the respondent as an educator. He was charged and dismissed based on two allegations of misconduct. In terms of charge one, the applicant stands accused of misconduct in that he failed to submit the marks in respect of some of his classes. In terms of the second charge the applicant was charged with applying corporal punishment which action is against the policy and law. The applicant is claiming unfairness on substantive and procedural grounds. In terms of relief the applicant is seeking retrospective reinstatement.
SUMMARY OF EVIDENCE AND ARGUMENT
THE RESPONDENT’S CASE
Kenosi Richard Diphagoe is employed with the respondent as a school principal, and he presented the following evidence under oath. The applicant was employed as an educator, and he was dismissed for failing to submit the marks in respect of some his classes, and for applying corporal punishment.
Learners come to school to be taught and assessed. The educator must after assessment submit the marks of the learners. The marks are necessary to compile a report to indicate learner progress. If the marks are not submitted it creates a problem.
There is a timetable that applies to the submission of the marks. It is difficult to provide a report if all the marks in respect of all the classes are not submitted. The applicant failed to submit the marks for 12 of his classes. The applicant had also previously neglected to submit the marks.
He wrote several letters to the applicant to address the issue. He even went to speak to the applicant’s mother highlighting the fact that the applicant was playing with fire.
Tlhabedi Mafoyane is employed with the respondent as deputy chief education specialist, and he presented the following evidence under oath. He chaired the applicant’s disciplinary hearing.
Mafoyane strongly denied the proposition that the applicant was denied the opportunity to state his case. The applicant indicated during the hearing that he did not have any witnesses and that he would not be represented. With regards to charge of corporal punishment, the applicant stated that he was not willing to comment in view of the pending criminal charge.
It was confirmed during the disciplinary hearing that the applicant was on a final written warning for not submitting marks. The latest charges were levelled within 6 months of the final written warning being issued. During cross examination Mafoyane insisted that the applicant was given an opportunity to give his version in respect of charge one pertaining to the non-submission of the marks. The applicant was informed of his right to be represented.
THE APPLICANT’S CASE
Tshediso Monyane is the applicant in this matter and presented the following evidence under oath. There was some miscommunication with the union and as a result he did not have a representative during the hearing. With regards to the allegation that he failed to submit the marks the applicant testified that he did submit some of the marks. During the disciplinary hearing the chairperson asked him what percentage he would give to the witnesses of the respondent. After he gave his opinion, the chairperson stated that he (the applicant) was therefore guilty. He was not asked to give evidence. He did not understand the process that was being followed.
With regards to the allegation of corporal punishment he told the chairperson that he was not going to discuss the matter. The process followed was unfair. The chairperson asked closed questions. In terms of relief, he was seeking retrospective reinstatement. He informed the principal that he was uncomfortable teaching life orientation, but nothing was done to assist him.
ANALYSIS OF EVIDENCE AND ARGUMENT
It is not in dispute that the respondent had terminated the employment of the applicant after he was found guilty of misconduct. The existence of dismissal is not in dispute and the onus is therefore on the respondent to prove that the applicant’s dismissal was substantively and procedurally fair.
The first issue to be decided is whether the respondent had discharged the onus to show that the applicant had failed to submit the marks in respect of all the classes under his control. The respondent presented clear and coherent evidence that the marks were not submitted. The school principal, Diphagoe, testified that the marks were not submitted and there is no reason to question the veracity of this evidence. Diphagoe further testified that due to the applicant’s failure to submit the marks the school was unable to compile reports in respect of the affected learners. Even more compelling is the fact that the applicant conceded that he failed to submit the marks in respect of all his classes. The inevitable conclusion to be drawn from the applicant’s evidence that he submitted some of the marks, is that he had failed in his duty to submit all the marks in terms of the timetable imposed by the school. The applicant at no stage denied that he was aware of the obligation to submit the marks, and the evidence clearly shows that he is guilty of misconduct in this respect.
With regards to the second charge related to the allegation that the applicant had applied corporal punishment, no direct material evidence was presented by the respondent. In the circumstances it follows that the respondent had failed to show that the applicant committed the misconduct. The applicant is therefore found not guilty in respect of charge two.
Having found the applicant guilty in respect of charge one, I must consider whether the sanction of dismissal was justified in the circumstances. On a proper analysis of the evidence, I am of the view that dismissal was completely reasonable and justified in the circumstances.
In Sidumo and another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) the Constitutional Court held that: “In approaching the dismissal dispute impartially a commissioner will take into account the totality of circumstances. He or she will necessarily take into account 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 the employee’s challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list.”
The Guidelines on Misconduct Proceedings, published by the Commission for Conciliation, Mediation and Arbitration (CCMA), state the following: “The test is whether the Employer could fairly have imposed the sanction of dismissal in the circumstances, either because the misconduct on its own rendered the continued employment relationship intolerable, or because of the cumulative effect of the misconduct when taken together with other instances of misconduct. The Arbitrator must make a value judgment regarding the fairness of the employer’s decision, considering all relevant circumstances. This must be a balanced and equitable assessment considering the interests of both the Employer and the Employee. In making this assessment, the Arbitrator must give serious consideration to and seek to understand the rationale for the Employer’s rules and standards”.
The applicant is guilty of serious misconduct in that his failure to submit the marks had resulted in the affected learners not being provided with a report. This situation has a negative impact on the reputation of the school and learners and parents are unable to assess academic progress. The applicant was on a valid final written warning at the time of this misconduct, and he was therefore fully aware that his employment was placed at risk in view of his disregard for the rules.
The applicant by failing to submit the marks disregarded the interest of the school, the learners and parents. I find in the circumstances that the respondent acted within its rights to dismiss the applicant as he could not be trusted to comply with his duty to the school and learners. I find the sanction of dismissal to be justified in the circumstances and there is no legal basis to interfere with the sanction.
The applicant submitted that he was denied the opportunity to state his case before being dismissed, but his version in this regard is contradicted by his own evidence. The applicant testified that he told the chairperson of the disciplinary hearing that in view of the pending criminal case he was not willing to discuss the allegation of corporal punishment. The applicant furthermore did not dispute the fact that he had indeed failed to submit the marks. The conspectus of the evidence shows that the applicant was afforded an opportunity to state his case and to meaningfully participate in the proceedings. I am satisfied that the applicant was afforded fair opportunity to make submissions before the decision to dismiss, was taken. In this regard I find no reason to question the truthfulness of Mafoyane’s evidence that the issues were properly ventilated.
The dismissal of the applicant is therefore also procedurally fair.
AWARD
The dismissal of the applicant, Tshediso Monyane, by the respondent, the Free State Education Department, was substantively and procedurally fair.
The applicant is not entitled to any relief.
There is no order as to cost.