Panellist: Themba Manganyi
Case No.: PSES1053-19/20GP
Dates of Hearing: 25 November 2021, 20 January 2022 &
07 February 2022
Date of Arguments: 14 February 2022
Date of Award: 15 March 2022
In the Arbitration Hearing between
NAPTOSA OBO BHARAT SOOKHA APPLICANT
And
GAUTENG DEPARTMENT OF EDUCATION RESPONDENT
Applicant’s representative:
Mr Ravi Pillay
Respondent’s representative:
Mr Thulani Majola
Details of hearing and representation
1. This is an arbitration award in terms of section 138(7) of the Labour Relations Act 66 of 1995 (“the LRA”), as amended, for an alleged unfair labour practice dispute referred by Naptosa obo Mr Bharat Sookha (“Sookha”), the Applicant, to the ELRC (“the Council”).
2. The arbitration proceedings were conducted on 25 November 2021, 20 January 2022 and 07 February 2022 at the Gauteng Central District Office in Soweto. Mr Ravi Pillay (“Pillay”), a NAPTOSA Official, represented the Applicant. Mr Thulani Majola (“Majola”) represented the Respondent, Gauteng Department of Education.
3. The parties submitted bundles of documents and the Applicant’s bundle was marked as Bundle A and the Respondent’s as Bundle R. The contents of the bundle were not disputed. At the end of the proceedings parties agreed to submit their heads of arguments in writing on or before 14 February 2022 and they duly complied. The proceedings were digitally recorded and I also took handwritten notes. The recordings thereof were retained by the Council.
Issue/s to be decided
4. I must determine whether the Respondent subjected the Applicant to an unfair labour practice as contemplated in section 186(2)(b) of the LRA. If I find that the Applicant was subjected to an unfair labour practice, I would be required to determine the appropriate relief.
Background
5. At the time of the alleged dispute, the Applicant was employed as the Head of Department (“HOD”) for Mathematics at Eldorado Secondary School and he earned R393 979, 00 per annum. The Respondent preferred the following charge on the Applicant:
It is alleged that in the periods 21 June 2018, while on duty as an educator at Eldorado Secondary School, you unjustifiably prejudiced the administration, discipline or efficiency of the Department in that you signed the Schedule for Grade 9 Mathematics for term two (2) 2018 of Task 2 SBA whereas the scripts were not marked by the teachers concerned.
6. The Applicant was found guilty of the allegation levelled against him and he was issued a sanction of three (3) months’ unpaid salary. The Applicant sought that I must return a not guilty finding and to reverse the unpaid salary.
Survey of evidence and arguments
7. Since this is an alleged unfair labour practice dispute, the Applicant bears the onus of proof and thus, a duty to begin in these proceedings. All the witnesses testified under oath.
The Applicant’s case
8. Sookha testified that learners were supposed to write a School Based Assessment (“SBA”) which was sent by the Department. Ms Mdlalose (“Mdlalose”), the Mathematics teacher, was supposed to mark the scripts and give them to him for moderation. Mdlalose had marked the Grade 9B scripts. He moderated and signed them and gave the scripts to Ms Davids (“Davids”), the Deputy Principal. Mdlalose had not completed marking the Grade 9A scripts. He moderated only three (3) scripts of Grade 9A class and gave them back to Mdlalose to finalize marking.
9. When Mr Bennet Tsotetsi (“Tsotetsi”), the Mathematics Facilitator, came to the school he discovered some discrepancy on the Grade 9A scripts. He (Sookha) was not aware that the scripts were not marked. He explained the process of capturing marks on the computer and stated that he did not moderate the printout for Grade 9A. He testified that the Capturer, Ms Dalene Davids (“Dalene”), said she was instructed by Davids to capture the marks. He stated that the signature on page 2 of Bundle under HOD was not his signature, but it was Davids’ signature.
10. Under cross-examination, he confirmed that page 11 of Bundle A was the mark sheet with marks entered by the teacher after marking the scripts. He stated that he did not know if Rowan Bond’s script was marked or not because he did not see the script. He stated that in terms of the policy, 10% of the class’s scripts must be moderated. He confirmed that the scripts on pages AI, AK and AL of Bundle R were not marked. He disputed that he approved the mark sheet on page AB of Bundle R. He confirmed that he approved the documents on pages 5 and 9 for Bundle A. He stated that the letter on page 13 of Bundle A was an apology letter from Mdlalose. He averred that the scripts that he moderated for Grade 9B were indicated on page 7 of Bundle A, the moderating tool. He stated that the Principal was charged for signing the schedule on page 2 of Bundle A.
11. Mr Marlon Louw (“Louw”) testified that he was the Principal at Eldorado Secondary School at the time of the incident. He stated that he was charged for signing off the schedule whilst he did not know that the scripts were not marked. He only became aware that the scripts were not marked when he conducted an investigation. He testified that Sookha did not sign the mark sheet and that the Deputy Principal (Davids) signed the mark sheets. He stated that Davids instructed Dalene to capture the marks and that he was charged for bringing the Department into disrepute by signing the schedule, but Davids was not charged. He testified that the schedule that was referred to in Sookha’s charge was page 2 of Bundle A. He submitted that page 11 of Bundle A did not have Sookha’s signature. And that he was not informed that Sookha did not sign the mark sheet.
12. Under cross-examination, he stated that the Deputy Principals do not sign the schedule, but they sit together to verify the marks before signing off the schedule. He reiterated that he was charged for signing off the schedule. He confirmed that the document on page 11 of Bundle A was the mark sheet and that the 18 marks on the mark sheet was extracted from page AI of Bundle R. He stated that he only became aware that Mdlalose did not mark the scripts when he was charged. He confirmed that the signature on page AN of Bundle R was Sookha’s, but it was for pre-moderation before the learners wrote the assessment. It was put to him that Davids would testify that Sookha gave her permission to sign the schedule and he stated that he did not know if Davids had Sookha’s consent to sign.
13. Dalene testified that she was the Administrator at Eldorado Secondary School. She stated that page 11 of Bundle A was a mark sheet that is given to HOD’s to give to their Educators. She stated that she received the mark sheet from Mdlalose for capturing. She testified that she told Mdlalose that the HOD did not sign the mark sheet and she went to Davids to tell her (Davids) that Sookha did not sign the mark sheet. Davids gave her an instruction to capture the mark sheet.
14. Under cross-examination, she stated that she did not know Sookha was charged for scripts that were not marked. She affirmed that she would have known if Sookha had moderated the mark sheet because he would have appended his signature on the mark sheet. She confirmed that learners’ reports were issued without the scripts being marked.
The Respondent’s case
15. During the pre-arbitration meeting, the Respondent’s representative indicated that he would be calling three witnesses. However, only one witness testified in these proceedings.
16. Mr Bennet Tsotetsi (“Tsotetsi”) testified that he was the Subject Facilitator responsible for monitoring the implementation of the Mathematics curriculum for senior phase and to support schools. He stated that when he visited Eldorado Secondary School, he was presented with unmarked scripts. He stated that the Educator was responsible for marking the scripts and the HOD was responsible for moderation. He stated that he has shown Sookha the unmarked scripts. He submitted that there was no moderation tool therefore that was indicative that the scripts were not moderated. He stated that he indicated on his report that he did not get the moderation tool when he was at the school and if Sookha was disputing his report, then he was not supposed to sign it. He requested Sookha to write a report so that he could explain the discrepancies that were on the allocated marks. He averred that he did not get any response from Sookha and the Principal. He stated that page 8 of Bundle A was the moderating tool that is completed after the task has been written.
17. Under cross-examination, he stated that he did not get the moderation tool when he was at the school. Therefore, he could not say if the three scripts that Mdlalose has marked are the ones that appear on the moderation tool on page 8 of Bundle A. He stated that he handed over his report to Davids and told her that she should distribute it to all concerned. He disputed that his report was only signed by him and Davids and stated that the report that he has was signed by all concerned. He stated that he did not know whether Mdlalose gave Sookha the scripts to moderate or not. It was put to him that Davids did not distribute the report that he left with her. He disputed this version and he was adamant that Louw signed the report and that Sookha would not have written a report as he (Sookha) has stated on page AH of Bundle R.
Analysis of evidence and argument
18. Section 138(7) of the LRA requires a commissioner to issue an award with his brief reasons. With this in mind, I will only restate the evidence and submissions that I find critical to assist me in arriving at a reasonable determination. However, I have considered all the evidence and the written heads of arguments.
19. Section 185(b) of the LRA prescribes that every employee has a right not to be subjected to unfair labour practice. Section 186(2)(b) of the LRA defines unfair labour practice as any unfair act or omission that arises between an employer and an employee involving the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee. In determining the substantive fairness of a dispute, I will be guided by Schedule 8, Item 7 of the Code of Good Practice: Dismissal.
20. It is common cause that the scripts for Grade 9A Mathematics for term 2 were not marked. It is common cause that Sookha was the responsible HOD for moderating the scripts and the mark schedule in question. It is further common cause that Mdlalose was the Educator that was responsible for marking the scripts and that she wrote a letter on page 13 of Bundle A apologizing for not marking all the scripts. It is further common cause that the discrepancy of the unmarked scripts was discovered by Tsotetsi during his school visit.
21. Louw comprehensively explained the process that must be followed before the learners were issued with reports. There must be an assessment that is approved by the responsible HOD (see page AN of Bundle R in this regard) that the learners would write. After writing the assessment, the responsible Educator would mark the scripts and prepare a mark schedule and hand them over to the HOD. The HOD would moderate at least 10% of the marked scripts and the mark schedule and if he was satisfied, he would sign it off and hand over the scripts and the mark schedule to the Deputy Principal to sample the marks. The Deputy Principal would then give the mark schedule to the Data Capturer. After the marks are captured (page 9 of Bundle A), the HOD would check the data integrity thereof, then sign the captured marks. After the above-mentioned process, the HOD, the Principal and the DAT would sign off the schedule cover on page 2 of Bundle A.
22. Now having explained the process that was supposed to have been followed, I will turn to deal with the charge that led to this dispute. The crux of the charge was that Sookha signed the Schedule for Grade 9 Mathematics for term two (2) 2018 of Task 2 SBA whereas the scripts were not marked by the teacher concerned. The schedule that is referred to herein is on page 2 of Bundle A (or page AE of Bundle B). Sookha disputed that he signed the schedule as alleged and Louw corroborated his testament. Louw’s unchallenged testimony was that he signed the schedule with Davids. [my emphasis]
23. From the bundles of the documents, it is evident that Sookha signed pages 5 and 9 of Bundle A and these were the marks schedule for Grade 9B. The marks schedule for Grade 9A on pages 11 and 12 were not signed by Sookha. This was corroborated by Dalene who testified that she queried the mark schedule that was not moderated with Mdlalose when she (Mdlalose) brought the schedule to her. However, Davids instructed her to capture the marks and she complied with the instruction.
24. I find the evidence that was presented on behalf of the Applicant party corroborative and credible. In the same breath, I cannot discredit Tsotetsi’s evidence in its entirety. He gave a detailed account of what transpired during his visit when he was moderating the Mathematics scripts for Grade 9 learners. However, what he could not testify on was who actually signed the schedule between Sookha and Davids. Concerning his report, I would not want to comment on his credibility as I was not privy to his report in these proceedings. Sookha did not deny that the scripts were not all marked. It was his testimony that he moderated only three (3) scripts for Grade 9A as evidenced on page 8 of Bundle A. The three (3) scripts constituted the 10% that he was supposed to moderate. Mdlalose did not give him the handwritten mark schedule for Grade 9A for him to moderate it. As already stated, Dalene received the handwritten hand schedule from Mdlalose.
25. It was prudent for the Respondent to call Davids as a witness in these proceedings as it is clear that the factual matrix of this dispute centres on her. Majola put a version to Louw and Dalene that Davids would testify in these proceedings to state that Sookha gave her permission to sign the schedule, but for reason unbeknown to me, she was not called. Unfortunately, this was to the Respondent’s own peril. Consequently, I conclude that Davids signed the schedule and not Sookha as alleged. Further to that, Davids did not have permission from Sookha to sign the schedule on his behalf. With this said, I find that a guilt finding on Sookha was unfair.
26. Majola in his heads of arguments, raised issues of Sookha being reckless in the performance of his duties and that what he did was fraudulent. He Sookha deserved to be harshly disciplined as he was paid for the work he did not do during this period. In my view, that was not the charge that Sookha was called upon to respond to. Considering that Tsotetsi visited the school on 27 August 2018, I have to admit that there has been some negligence on Sookha’s part by not ensuring that the scripts were marked, and the marks schedules were moderated before reports could be issued out. Nonetheless, this was not the dispute that was before me. I therefore cannot make any determination.
27. Having found that the quilt verdict visited upon Sookha was unfair, it therefore follows that Sookha succeeded in discharging his burden of proof, on a balance of probabilities, that the Respondent subjected him to an unfair labour practice by imposing a sanction short of dismissal on the misconduct that he did not commit. Thus, Sookha is entitled to the relief that he prayed for.
Award
I therefore award as follows:
28. I find that the Respondent, the Gauteng Department of Education, has subjected the Applicant, Mr Bharat Sookha, to an unfair labour practice as contemplated in section 186(2)(b) of the LRA.
29. The Respondent is ordered to revoke the disciplinary hearing sanction meted against Mr Bharat Sookha and to reimburse him his three months’ unpaid salary of R98 494, 75 (R393 979, 00 ÷ 12 months X 3 months), less any statutory deductions, on or before 25 March 2022.
Arbitrator: Themba Manganyi