Panelist: Kuvonakala Chavalala
Case No.: ELRC299 23/24GP
Date of Award: 04 December 2024
In the ARBITRATION between:
Mamoyahabo William Seakamela
(Union / Applicant)
and
Department of Education Gauteng
(Respondent)
DETAILS OF HEARING AND REPRESENTATION
[1] This is the arbitration award between Mamoyahabo William Seakamela (hereinafter referred to as “the applicant”) and Department of Education Gauteng (hereinafter referred to as “the respondent”). The hearing concerned an alleged unfair dismissal dispute. It sat on several occasions and was finalised on the 08 November 2024.
[2] The applicant was represented by Ms. Moloto his legal representative. The respondent was represented by Mr. Munengwane from the respondent.
[3] The respondent submitted a Bundle of documents which we marked Bundle R. The applicant submitted a bundle which was marked Bundle A.
[4] Parties had to submit written closing arguments on or before 22 November 2024 and both did so. The hearing was held in English and it was digitally and manually recorded.
ISSUES TO BE DECIDED
[5] I am required to decide whether the dismissal of the applicant was procedurally and substantively fair and, if not, the appropriate remedy.
BACKGROUND TO THE ISSUES TO BE DECIDED
[6] The applicant was employed by the respondent effective from 09 January 1991. He was holding a position of a Post Level 1 (PL4) educator with a salary notch of R789462.00. He was stationed at JB Matabane Secondary School. He was dismissed on 01 August 2023.
[7] The applicant was charged with six counts of misconduct. He pleaded not guilty to the charges. The applicant was found guilty on all charges. The charges included tables of about 167 transactions which made the charge sheet to be 12 pages long. The charges inclusive of the transaction appear on page 1-12 of bundle R and the transactions will not be retyped in this award but must be read in as if specifically included. The charges (without the transactions) were formulated as follows: –
- Allegation 1
It is alleged that during the period 2018 to 2019, you failed to give advice to the SGB on the financial implications of the decisions relating to financial matters of the school; failed to take responsible steps to prevent any financial maladministration or mismanagement by the SGB and failed to report any maladministration or mismanagement of the financial matters to the Head of Department. Your failures emanate from the fact that the SGB procured goods and services to the value of R824,574.94 without obtaining quotations from at least three suppliers, which is out of sync with the prescription of the School Finance Policy of JB Matabane Secondary School. The transactions for the said goods and services appear below. (65 (Sixty five) Transactions listed)
In view of your actions, you are thus charged with misconduct in terms of Section 18 (1) (b) of the Employment of Educators, Act 76 of 1998, as amended.
- Allegation 2
It is alleged that during the period 2018 to 2019, you failed to give advice to the SGB on the financial implications of the decisions relating to financial matters of the school; failed to take responsible steps to prevent any financial maladministration or mismanagement by the SGB and failed to report any maladministration or mismanagement of the financial matters to the Head of Department. Your failures emanate from the fact that the SGB made payments amounting to R 631 674.19 without supporting documents which is contrary to the prescripts of GDE Circular 13 of 2000 and GDE Accounting Manual for Public Schools 2017. The transactions appear below. (48 (forty eight) Transactions listed)
In view of your actions, you are thus charged with misconduct in terms of Section 18 (1) (b) of the Employment of Educators, Act 76 of 1998, as amended.
- Allegation 3:
It is alleged that during the period 2018 to 2019, you failed to give advice to the SGB on the financial implications of the decisions relating to financial matters of the school; failed to take responsible steps to prevent any financial maladministration or mismanagement by the SGB and failed to report any maladministration or mismanagement of the financial matters to the Head of Department. Your failures emanate from the fact that the SGB issued /cashed 24 cheques amounting to R188 372.00, an amount which is above the petty cash threshold of R4000.00. This threshold is prescribed by the School Finance Policy of JB Matabane Secondary School. The transactions for the said goods and services appear below. (24 (twenty Four) Transactions listed)
In view of your actions, you are thus charged with misconduct in terms of Section 18 (1) (b) of the Employment of Educators, Act 76 of 1998, as amended.
- Allegation 4
It is alleged that during the period 2018 to 2019, you failed to give advice to the SGB on the financial implications of the decisions relating to financial matters of the school; failed to take responsible steps to prevent any financial maladministration or mismanagement by the SGB and failed to report any maladministration or mismanagement of the financial matters to the Head of Department. Your failures emanate from the fact that the SGB issued cheques without completing cheque requisition forms as required in the School Finance Policy of JB Matabane Secondary School. The transactions for the said goods and services appear below. (14 (fourteen) Transactions listed).
In view of your actions, you are thus charged with misconduct in terms of Section 18 (1) (b) of the Employment of Educators, Act 76 of 1998, as amended
- Allegation 5
It is alleged that during the period 2018 to 2019, you failed to give advice to the SGB on the financial implications of the decisions relating to financial matters of the school; failed to take responsible steps to prevent any financial maladministration or mismanagement by the SGB and failed to report any maladministration or mismanagement of the financial matters to the Head of Department. Your failures emanate from the fact that the SGB issued cheques without completing cheque requisition forms as required in the School Finance Policy of JB Matabane Secondary School. The transactions for the said goods and services appear below. (12 (twelve) Transactions listed).
In view of your actions, you are thus charged with misconduct in terms of Section 18 (1) (b) of the Employment of Educators, Act 76 of 1998, as amended.
- Allegation 6
It is alleged that during the period 2018 to 2019, you failed to give advice to the SGB on the financial implications of the decisions relating to financial matters of the school; failed to take responsible steps to prevent any financial maladministration or mismanagement by the SGB and failed to report any maladministration or mismanagement of the financial matters to the Head of Department. Your failures emanate from the fact that the SGB failed to account for debit order transactions for the value of R55 369.85 made to four service providers. Neither supporting documents nor contract/agreements between the school and service providers could be furnished. The transactions for the said goods and services appear below. (4 (four) Transactions listed).
In view of your actions, you are thus charged with misconduct in terms of Section 18 (1) (b) of the Employment of Educators, Act 76 of 1998, as amended.
[8] The following were common cause issues: –
a) Date of employment, position, and the date of dismissal.
b) Applicant was given a notice to attend disciplinary hearing which informed him of his rights. He attended the disciplinary hearing. He pleaded not guilty to all He was informed of the outcome of the hearing.
[9] The following were issues in dispute:
a) The commission of all offences.
b) The applicant alleged that his dismissal was procedurally unfair because he was not accorded the right to be represented.
[10] The applicant sought retrospective reinstatement as a relief.
SUMMARY OF THE PARTIES’ EVIDENCE AND ARGUMENT
This section only records the summary of the evidence that was tendered and not the verbatim testimony of the witnesses. The case was digitally recorded, and such recordings can be provided to the parties upon request.
Respondent’s case
The respondent called two witnesses who testified under oath and the summary is as follows as follows:
First witness: Vongani Godfrey Phephenyani
[11] He is employed by the respondent as a Deputy Director: Labour Relations. He was the chairperson in the disciplinary hearing of the applicant. As can be seen from the extract of his report of Bundle R2, the matter had 10 (ten) sittings over a period of more than a year. He cannot recollect with accuracy what transpired in every sitting the applicant had a total of 4 (four) representatives; Mr. S More, Mr. E Machete, Mr. E Shishenge, Mr. K Ramutla. The postponements were granted on the request of the employee for reasons relating to the applicant sourcing documents or securing a representative. The applicant was afforded countless opportunities to be represented.
[12] He also extended a hand of help to the applicant when he was looking for documents by explaining the process the applicant was to follow to obtain the documents he was looking for.
Second Witness: Mukundi Patrick Mavhivha
[13] He is employed by the Gauteng Department of Education under a directorate which was then called Compliance Inspectorate, today called Anti-Corruption Ethics and Integrity Management. He is a Senior State Accountant and his role is to conduct is to conduct forensic investigations in relation to financial affairs, procurement and etc. from head office, district offices, as well as the schools.
[14] He never saw the request for information signed by the applicant as appears on page 6 of Bundle A addressed to Risk Management.
[15] He conducted investigations at JB Matabane Secondary School together with Nyameko Bodoza, and Mandla Dlamini on the instruction from their Deputy Director, Ms. Mamogodi Magolu. The case was initially allocated to Mr. Dlamini and Mr Bodoza, he only joined them later on. They went to the school several times to request all the necessary documents. The applicant and Ms. Mdhluli informed them that there had been burglaries at the school and some documents were stolen. They only used the documents they sourced at the school to conduct the investigations to conclusion. There were no burglary SAPS case numbers supplied to them.
[16] Circular 13 of 2000 as appears on page 192-195 Bundle R governs the Management of School Funds. In terms of Clause 2.7 the responsibility is on the governing body, the principal or any other person to report all suspected irregularities with regard to the management of school fund without delay to the head of department and the South African police Services. This case was reported to the respondent by concerned members of society who had relationship with the school.
[17] The School Finance Policy of JB Matabane appears on Page 196-210 of Bundle R and was signed by the applicant. It was revised on 1 June 2018.
[18] The investigations revealed that payments were made without three proceed quotations; there were no supporting documents; cheques were cashed which were in excess of the petty cash threshold of R4000.00; cheques were issued in favour of a beneficiary but the invoice of the beneficiary is less than the cash that was withdrawn; no cheque requisition forms and cheque requisition forms that are not fully completed. The investigation also revealed variances in some amounts in instances where the principal would have issued out a cheque of say R90000.00 to pay for an example an electricity bill but the invoice of the electricity bill would be R85000.00 and there would be no explanation and/or no supporting documents as to what the R5000.00 variance was used for. He went through each of the 167 transactions and explained how they was none compliant with the prescripts. Some of these monies that did not have supporting documents were paid over to the applicant himself.
[19] They consulted with SGB leadership and all the people who cashed the cheques in order to investigate the allegations. Mr Mandamela stated that the principal would ask anyone to cash cheques and no documents would be supplied, the money would be taken to the principal and they would not know what he used the money for. Ms Manzini (SGB Chairperson) explained that the principal would complete the cheques and ask her to just sign them. The cheques would be cashed and they do not know what would ultimately happen to the cash. Ms. Mdhluli (Financial Officer) said there no system of ensuring payment process from the requester up till payment stage, all they do is keep copies of cheques. During investigations, she gave them cheques which were inside an envelope and she said she does not know what happened to the money.
Cross examination
[20] Him and his other 2 (two) colleagues that investigate the matter did not each have different assigned roles, they just worked together as a team. He was however given the responsibility of integrating all the transactions that all investigators looked at. He integrated all the 170 transactions in the charges.
[21] He joined the investigations after it had started but he knows for a fact that the cheques in the envelope and the school finance Policy were sourced from the school because they were given directly to him by Ms. Mdhluli. He could not dispute that his colleagues could have gotten the files from Auditors appointed by the applicant because he did not start out with the investigation.
[22] He denies the applicant’s version that he, the witness, never asked for case numbers for the alleged burglaries at the school.
[23] He denies that the risk section of the respondent took the files containing all the documents that are said to be missing. The department would have no reason to withhold the documents as it was not invested in charging the employee. It would be bizarre and unethical for the department to even question the principal for further documents while the department actually has the documents.
[24] If the principal cashes out a cheque and keeps the money to use it for school purposes, it is considered as petty cash. Any other payment would have to go directly to the receiver of it. According to the Finance Policy of the School, petty cash remains capped at R4000.00 and the policy does not cater for a discretion to be exercised on increasing the amount.
THE APPLICANT’S CASE
The applicant, Mamoyahabo William Seakamela testified under oath and the summary of which is as follows:
[25] He started working as a principal for JB Matabane from 2011.
[26] During his disciplinary hearing, Mr Sishenge appeared on his behalf request for a postponement on 2 (two) occasions. On the day the applicant was to lead evidence, Mr Sishenge was not available. The applicant asked for a postponement and Mr Phephenyani refused it. He then had to lead his own evidence which he considers a limitation to his right to be represented and thus unfair. Mr Ramutla was thereafter on record as his representative and he lead the evidence of the applicant’s witness, Ms Siphiri.
[27] At the disciplinary hearing, he had the same bundle of documents as in the Arbitration. These documents are not complete. There were files containing minutes, finance files with 2018-2019 financial statements, audited reports, contracts, quotes, requisition forms and receipts which are not part of the bundle of documents.
[28] These files were collected from diversity Consulting, an auditing, firm by one Ms Mogodu who is an employee of the respondent. She first went to JB Matabane Secondary school to request them and the applicant told her they were with the Auditor. She insisted that she wants those files and he directed her to Diversity Consulting’s office. Mr Mavhivha and his team went to the school for investigation after Ms Mogodu had taken the files. When Mr Mavhivha and the team arrived, they requested documents and space to work. They interviewed staff members in his absence. He was then after charged.
[29] As the accounting officer of the school, he had to check each and every transaction and confirm that it complies with the prescripts. He indeed ensured that all the transactions were compliant. The documents were there but taken by this Ms Mogodu from the Department of Education. The cheque requisition forms that are on Bundle R are duplicates. These do not mirror the original Cheque requisitions because they would not make a hard copies but duplicate them manually by writing twice. The duplicate would not have all signatures but the original would. This manual duplication was not done at the same time with the completion of the original requisition form. That is why there are no full signatures, other people were still going to sign and fill their portions on the duplicate. The manual duplication was done to save resources because their school is a mobile school.
[30] He would cash the cheques for amounts exceeding R4000.00 because those cashed cheques were not petty cash but were to pay certain service providers. They realised that the amount of bank charges were too much for them to issue many cheques to different service providers. The snub of the cheque would show that the money was used for what purposes.
[31] There were SGB meetings and minutes prepared where they agreed on all the debit orders. Those minutes were part of the files taken to the auditor and collected by Ms Mogodu.
[32] His dismissal was unfair and he wants to be retrospectively reinstated.
Cross examination
[33] The investigation was in the year 2020 and Mr Mavhivha interviewed other people but not him. He as the principal was a custodian of financial files.
[34] He conceded that the requisitions as they appear on Bundle R are in contraventions of the school finance policy. He also agreed that in terms of the policy, financial documents are to be submitted to the Auditor within four months after the end of a financial year end. The financial year of the school runs from January to December meaning it should be submitted to auditor by end of April 2024. The policy requires that they submit to a Qualified Auditor who is qualified in terms of SAICA requirements. The Auditor for the school was Diversity Consulting.
[35] He submitted the financial files for 2018 and 2019 to Diversity Consulting in February or March 2020 and they were collected by the lady Ms. Mogodu in April or May 2020. There was a control book at the school that was managing access to the school. He did not subpoena the control book that would show that a Ms. Mogodu had indeed visited the school because of the fact that there was arson at the school in September 2023, he thought he would not get the documents.
[36] In October 2021 he went to the Risk unit together with his representative to try and source documents for preparation for DC hearing. He never asked for Ms. Mogodu because he was visiting a Unit not an individual. When he wrote his request for documents in December 2021, he never mentioned Ms. Mogodu because he was addressing the letter to a Directorate not an individual.
[37] The files that he took to Diversity Consulting were three in total, one for minutes, the other for 2018 financial year and the last for 2019 financial year.
[38] It was put to the Applicant that in April/May 2020 the country was on a hard lockdown and all schools were closed, Ms. Mogodu could not have gone to school to collect files. He stated that he could not recall which month the country was on hard lockdown. After judicial notice was taken of that fact, he stated that he cannot recall exactly when the files were taken. When he was told that he could remember what monies were spent on what services during his evidence in chief, he stated that a mind of a person works differently and it remembers what it remembers.
[39] Mr. Mavhivha should have prepared an inventory of documents he collected from the school. That version was not put to Mr. Mavhivha because he who alleges must prove. If Mr. Mavhivha alleges he took only certain documents, he must prove it.
[40] Nowhere in the policy does it allow him to issue one cheque in respect of a specific receiver, pays over only a portion then use the balance for something else in order to avoid bank charges. They just agreed on it as SGB although the policy is silent on that process.
[41] The department selected documents and just produced some in order to paralyse his defence. Even for the arbitration, he was given documents which were not part of the bundle but they were released because he asked for them. There was a lot of conspiracy against him. He did not attach the new documents given to him at arbitration in his own Bundle because they are not related to the charges. The conspiracy against him is being fuelled by IDSO and his Union because he had reported an educator who assaulted a learner.
[42] The files normally return to him after auditing around July. The 2018 files were returned to him around July 2019 but were taken again by the auditor when he was auditing 2019 books. The auditors always ask for the previous year’s financial files before auditing the financials for the year in question. This is why Diversity Consulting had both 2018 and 2019 files that were later taken by the lady from the department, Ms. Mogodu.
[43] Ms. Mogodu first called the applicant on his cell phone and told him that she was going to the school. When she arrived at the school, she had a name tag on, he only recalls her as Ms. Mogodu. She did not have any form of document with her but she requested the School’s financial documents. He directed her to Diversity Consulting and phoned Mr Patrick Blaai, the director of Diversity Consulting and informed her Ms. Mogodu is on the was on the way to collect the files.
[44] According to him, not all cashed cheques are petty cash, some are just cash to pay service providers. How he identifies which is just cash and which is petty cash is by looking at the snubs of the cheques. Those snubs were also taken to Diversity Consulting and collected by Ms. Mogodu.
Second Witness: Matsilisi Siphiri
[45] She was a member of SGB but was not serving in any committee. She was a witness in Mr. Seakemela’s case during the internal disciplinary hearing. Her questions were led by Mr Rammutla from SADTU.
Third Witness: Kgabo Rammutla
[46] He is a SADTU official and part of the people that represented the applicant in the disciplinary hearing. He came in to represent after the person officially deployed was not available to represent. He led the evidence of Ms Siphiri and submitted closing arguments. He agrees that it was the applicant and the union’s responsibility to ensure that the applicant had a representative at the disciplinary hearing.
Fourth witness: Wellie Patrick Blaai
[47] He is the director of Diversity Consulting and he is an Accounting Officer. His duty is to prepare financial statements for institutions. JB Matabane secondary school was one of his clients for whom they prepared Financial statement.
[48] The documents they required from JB Matabane secondary school were invoices, utility bills, cheques issued to payee requisition forms, bank statements, proof of donations or grants the school received and any other financial document. All the information is collated and an Annual Financial Statement is prepared and sent over to the school. Once the Annual Financial Statement has been signed by the school, his office returns all the files to the school.
[49] Files for 2018 would typically be returned in August 2019 and 2019 files returned in August 2020
[50] In January 2020, he got a call from the applicant indicating that a certain lady from the Department of Education was on her way to the or office to collect files for 2019 and he must release those files. He was not in the office when he received a call from the applicant. Tebogo Tshetlo, a bookkeeper at his office also called him and told him a lady had arrived to collect files. He told Tebogo Tshetlo to release the files to her. Tebogo then released the files to the lady. He did not complete the financial statements for 2019 because he was waiting for the files to be returned to him.
Cross examination.
[51] He is not an Auditor/independent reviewer but an accountant. After he is done with his job of preparing a financial statements, an auditor must be appointed by the school to conduct auditing.
[52] His company failed prepare any letter to indicate who took what files and how many or at least a letter of acknowledgement for the auditor to sign. He agreed that this failure goes against good accounting practices.
[53] He estimated that the lady collected the files happened in January 2020 and not April/ May 2020. Diversity Consulting had also collected the files when the school reopened in January 2020, during the first week of school. He signed acknowledgement of collection which he left at the school.
[54] He presented emails of September 2020 wherein Tebogo Tshetlo wrote an email to the principal stating that the department of Education auditor has not returned the files she took which includes 2019 files for conducting an audit. In the trail of emails, he was referred to another email from Tebogo Tshetlo in February 2020 wherein he confirms to have received 7 files as anticipated and that some documents are still missing. He was asked how it could be that the files were taken in January 2020 and in February 2020 Tebogo is just acknowledging receipt of documents and still requests more documents. He stated that when he said the lady from head office collected the files in January 2020, he was estimating. He accepted that his dates are not accurate but that does not mean that the applicant’s testimony that files were collected in April/May 2020 was correct.
[55] He stated that the Ms. Mogodu auditor took some files not all the files, he is not sure how many because Tebogo is the one that handed them to the lady.
[56] He confirmed that the minutes of the SGB were not part of the financial documents because they do not use minutes. The only reason why Diversity Consulting would still have 2018 files is because the bookkeepers sometimes delay in returning the files back to the client, he was done with 2018 financial statements and had reported in the AGM in August 2019, there was thus no need to have 2018 files.
ANALYSIS OF EVIDENCE AND ARGUMENT
[57] In terms of section 192(1) of the Act, the employee bears the onus to prove the existence of dismissal. The existence of dismissal was placed out of issue because the respondent confirmed that the applicant was dismissed. I am enjoined by the Labour Relations Act to decide into the fairness of the dismissal and give brief reasons.
[58] The procedure followed for the dismissal was challenged by the applicant on the basis that the chairperson did not grant the postponement that he requested to secure a representative, he was thus denied of a right to be represented.
[59] It was testified by the chairperson and can be easily gleaned from the cover pages of the chairperson’s report that the applicant had a total of 4 (four) representatives and the case a had a total of 10 sittings over a period of more than one year, of which most were postponed on the request of the employee.
[60] The chairperson denied having refused the postponement request of the applicant, his version was that the applicant chose to proceed. Even if I were to accept that the chairperson refused a postponement, it would seem to me that given the history of the previous representatives being on record and the history of other postponements, such a refusal would have been justified. It is in the discretion of the chairperson whether to grant or refuse a postponement. The applicant did not allege even a slightest reason what the basis of the application for postponement was and the alleged reasons for refusal. He already had been represented by 3 representatives it would have been more onerous on him to give merit to the absence of the representative on the day. Postponement is not automatically granted just because a representative is not present, there must be merit to the absence which convinces the chairperson that the indulgence can be granted. The applicant wants me to find that the refusal for postponement which subsequently made him proceed without a representation was unfair without him substantiating such an allegation. It is the opportunity to be represented that he was entitled to, just the opportunity. Whether the applicant chooses to use it or not is another question. If he does not use the opportunity already granted, he cannot push the blame on the door of the respondent.
[61] Further, the minimum requirements for procedural fairness have been met. I am guided in this regard by the case of Avril Elizabeth Home for the Mentally Handicapped v CCMA and others (2006) 27 ILJ 1644 (LC); [2006] 9 BLLR 833 (LC) where it was held that the employer was merely required to conduct an investigation, give the employee or his representative an opportunity to respond to allegations after a reasonable period and thereafter to take a decision and give the employee notice thereof.
[62] It is my finding that probabilities favour the version of the respondent that the applicant chose to proceed with the matter on his own on the day he proceeded on his own. The dismissal was procedurally fair.
[63] I now address the question of substance.
[64] In terms of Schedule 8 of the Code, anyone determining the substantive fairness of a dismissal must determine: –
(a) Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
(b) If a rule or standard was contravened, whether—
(i) The rule was a valid or reasonable rule or standard;
(ii) The employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
(iii) The rule or standard has been consistently applied by the employer; and
(iv) dismissal with an appropriate sanction for the contravention of the rule or standard.
[65] It is not necessary for certain rules to be written more especially if they stem from common law. For an example, even if the company code does not state ‘do not steal’, every employee knows they may not steal. Most of the charges that the applicant was charged with stem from common law rules. The employee has a common-law duty to act in good faith towards the employer. Acting in good faith towards the employer is a rule that arises out of common law, and it is so well established and known that it is not necessary to write or communicate it. This rule is broad enough to encompass a requirement to follow policies/prescripts and standard operating rules of the employer. To be more pointed to the matter at hand, there is no dispute that there a is Finance Policy at JB Matabane Secondary School, Circular 13 of 2000 and other prescripts which regulated and governed the management of the school finances. It is my finding that there was a rule, this rule is valid, and the applicant is aware of it.
[66] The next question that arises is whether the applicant breached the rules. The version of the applicant is that he did not. He testified that he is aware and had complied with all the rules as stipulated. His defence is that all the documents that are needed to prove his compliance with the rules are in the custody of the respondent. He confirms that he had the responsibility of keeping the records of the financial transactions of the school safe. He alleges that he did so but a lady by the name of Ms. Mogodu from the respondent’s offices collected the files which have all the documents that can prove that he complied with the rules.
[67] There is no dispute that if all the records that were kept by the applicant were the ones in the bundles of documents submitted to me, it would be indicative of that the applicant failed to give advice to the SGB on the financial implications of the decisions relating to financial matters of the school; failed to take responsible steps to prevent any financial maladministration or mismanagement by the SGB and failed to report any maladministration or mismanagement of the financial matters to the Head of Department.
[68] It was incumbent on the employee to provide the some evidence regarding his allegation that files were taken by the department’s official. During arbitration, while the overall onus never shifts from the employer, the need to present or counter evidence may rest on different parties. In a case involving misconduct, once the employer has assembled out its allegations with evidence to a degree that its version requires an answer or rebuttal lest it be believed, the evidentiary burden shifts onto the accused employee to prove otherwise. This simply means that the employee may not sit and fold his arms because the overall onus is not on him.
[69] I am guided in this regard by the case of Woolworths (Pty) Ltd v CCMA and Others (2011) 32 ILJ 2455(LAC) at Para 34 where the Labour Appeal Court held that video footage capturing an employee concealing merchandise on his person while working in a retail store constitutes a prima facie case of dishonesty against the employee. This then shifts the evidentiary burden to the employee. In the absence of a credible and probable explanation from the employee, the inference that the arbitrator can most reasonably draw is that the employee acted dishonestly and that the employer has discharged its onus.
[70] Regarding charges 1,2,45 and 6, the applicant’s version tis basically that I must find that his dismissal is unfair, but he does not have evidence to prove that it is unfair. The version of the applicant appears to be weak if left at that. But the applicant went further to say that the evidence is in the hands of his ‘accuser’, the respondent. He alleged that the files were collected from the Diversity Consulting by a lady from Risk Section of the respondent, Ms Mogodu. If in my analysis I find that the files were indeed taken by a Ms. Mogodu who is a departmental official, what then? The applicant did not address me on this. Is it his case that I then should assume that all documents that would be needed to prove compliance would have been there? I certainly cannot do so, which weighs the probabilities against him regardless.
[71] But even looking at his version that a certain Ms. Mogodu collected the files which had all other documents, his version is improbable. This is so because of many reasons, to mention a few:
a. It was put to him that there is no such a lady by the name of Ms Mogodu at Risk section, and he could not rebut this.
b. There was no proof of the lady ever accessing the school either in the form of attendance registers or any other access document. In all the list of the documents the applicant requested, he never even once requested the school access records for that month, quarter, or semester, he simply assumed the records would not be there.
c. The applicant testified under oath that the lady collected files around April/May 2020 and when it was put to him that the country was in hard lockdown, he changed the version to say that it was just an estimate.
d. In attempt to cure this bad evidence, the applicant’s witness, Mr Blaai, came to testify that it was in the first week of January 2020. When it was also put to him that given the emails he presented, that cannot be because on 20 February 2020 Tebogo was acknowledging receipt of files and requesting further documents, he stated that his dates are not accurate. This was a clear sign of fabrication.
e. On the emails submitted by the applicant through Mr. Blaai, Tebogo referred to a person who collected some files at some stage as the “Auditor” for auditing purposes. This differs materially from the version of the applicant that the files were collected for investigations by a person from Risk section of the respondent.
f. Even the accounting company, Diversity Consulting just allegedly handed files to a person whose name, portfolio, and identity they cannot state. The company failed to even make an inventory of the files allegedly collected. Considering that this was a stranger, the company would have kept a copy of an ID at the bare minimum. Mt Blaai conceded that handing such sensitive files to a stranger does not comply with accounting principles.
g. Mr. Blaai was not present when the files were allegedly collected, he only heard that they were collected by Tebogo, the very same Tebogo who referred to the collector as the ‘auditor’. Tebogo was not called as a witness even when I alluded to the applicant’s representative that that Mr Blaai was presenting hearsay evidence regarding the collection of files. In terms of the Law of evidence Amendment Act, hearsay evidence is generally not acceptable unless there exists one or more of the exceptions as laid down in section 4 thereof. The applicant’s representative stated that Mr Blaai’s testimony does not amount to hearsay, and she was willing to close her case and argue the point when submitting closing arguments. Except for quoting the provisions of section 3 and 4 of Law of evidence Amendment Act, no argument was submitted indicating that Mr Blaai’s evidence was not hearsay. None of those exceptions exists listed existed and the applicant chose not to call Tebogo Tshetlo.
h. The applicant sated that the financial files of 2018 were needed by Diversity Consulting to prepare 2019 Financial statements. Mr Blaai on the other hand stated that he does not need the 2018 files and if they were still in his office, it would have been because his employees were slacking in returning them back to the client.
i. While Mr Seakamela stated that minutes were submitted as needed by the accountant, Mr Blaai disputed this.
j. The applicant stated that all the files 2018 and 2019 files were taken by Ms Mogodu from Diversity Consulting, Mr Blaai stated that only ‘some’ files and not all files were taken by the lady.
k. The applicant stated that Diversity Consulting is the auditor appointed by the school, Mr Blaai stated that he is not an auditor, and he merely complies financial statements, which get sent to the auditor appointed by the school afterwards.
[72] This version of the applicant that a Ms. Mogodu collected the files was riddled with contradictions on material aspects and is rejected. It is clearly a fabrication. As stated before, even if collection of files was proven, it would not do much for the applicant’s case. The applicant would still have had to utilise all means available with the help of his attorney to source these files.
[73] Regarding allegation 3, the applicant submitted that the cheques were cashed but those not to be regarded as petty cash. He accepts that petty cash is also money that is withdrawn from the account by cashing a cheque and may also be used for maintenances. He stated that if the cash is used for bigger maintenances, then that cash is no longer regarded as petty cash, and it will be written on the snub of the cheque concerned what the money was used for. The applicant clearly violated the provisions of the school policy regarding petty cash. Petty cash, even in terms of the school’s finance policy has got nothing to do with the use but the type of the currency medium. The policy does not cater for the discretion which the applicant has made to withdraw more petty cash than allowed for in the policy. It is my finding that the respondent had discharged its onus, and the probabilities favour that the applicant is guilty of this allegation.
[74] Having found that the respondent discharged its onus in proving that the applicant is guilty of all charges levelled, I now address the question of the sanction. Schedule 8, Code of Good Practice: Dismissals, items 4, 5 and 6 provide a follow: –
75 Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or willful damage to the property of the employer, willful endangering of the safety of others physical assault on the employer, a fellow employee, client or customer and gross insubordination. Whatever the merits of the case for dismissal might be, a dismissal will not be fair if it does not meet the requirements of section 188.
(5) When deciding whether to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee’s circumstances (including length of service, previous disciplinary record, and personal circumstances), the nature of the job and the circumstances of the infringement itself.
(6) The employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration.
[76] It is trite that the nature and circumstances of each individual case should be taken into consideration, prior to making a decision. This is in accordance with fair labour practices and general principles of fairness which require that due consideration should be given to all relevant considerations before a sanction of dismissal (or for any other sanction) is imposed. The imposition of a fair and appropriate sanction forms an important component of the general fairness requirement of a dismissal and requires the chairperson to consider all factors, including but not limited to, the nature and circumstances of the offence that was committed, the impact of the misconduct on the workplace and any other relevant mitigating circumstances before imposing a sanction.
[77] The position of the applicant at the time of commission of the offences was senior in nature. There is a high premium placed on honesty and transparency by virtue of the position he held. He had many years of service, and he was aware of the rules that governed and regulated the use of school funds, his many tears of service cannot tilt the scales in his favour under the circumstances. The offences themselves are very serious and have potentially deprived the school a lot of money which should have been used for the improvement of an African child’s education. In the case of Toyota SA Motors (Pty) Ltd V Radebe and Others (2000) 21 ILJ 340 (LAC) at paragraph 24 the court stated as follows “there can be no gainsaying the fact that the post to which the respondent was appointed is a senior post, which required a high level of trust and integrity. The employer was entitled, in the circumstances, to say that it was risky to keep the employee in its employ as it could no longer trust him”.
[78] The applicant throughout the whole process, did not show remorse, he did not at all admit his own liability to the acts that led to his dismissal. In De Beers Consolidated Mines Ltd V CCMA And Others (2000) 21 ILJ 1051 (LAC) at paragraph 25 the court stated: – Whereas in this case an employee over and above having committed gross misconduct (own emphasis) falsely denies having done so an employer would, particularly where a high degree of trust is reposed in an employee, be legitimately entitled to say to himself that the risk of continuing to employ the offender is unacceptably great.
[79] It is my finding that the dismissal is a fair sanction under the circumstances.
AWARD
[1] The dismissal of the applicant, Moyahabo William Seakamela, by the respondent, the Department of Education Gauteng, was procedurally and substantively fair.
[2] The case against the respondent is dismissed.
[3] I make no order as to costs
Dated on the 04 day of December 2024
Kuvonakala Chavalala
ELRC PanellistNovember 2024.