In the matter between
SADTU OBO MOKGONYANE
(Applicants)

And

DEPARTMENT OF EDUCATION: LIMPOPO
(Respondent)
DETAILS OF THE HEARING AND REPRESENTATION

1. The dispute was referred to arbitration in terms of section 191(1) & 191(5) (a) of the Labour Relations Act 66 of 1995 as amended (“LRA”). The hearing was held on the 1, 29 and 30 July 2021 by way of Zoom meetings.

2. The Applicant, Mr Mokgonyane was represented by Ms T Monyai, an official from SADTU. The Respondent, Department of Education, Limpopo was represented by Mr Nyathela , labour relations officer of the Employer

3. The proceedings were manually and digitally recorded and were finalised on the 30 July 2021. The parties submitted their closing arguments and same were considered in this award.

NATURE OF THE DISPUTE

4. This is a dispute about alleged unfair dismissal

BACKGROUND OF THE DISPUTE

The Applicant, Mr Tlou Phillemon Mokgonyane, was employed as educator by the Employer from the 19 June 1995 until he was dismissed on the 24 November 2020. The Employee faced a misconduct for contravention of section18 of Employment of Educators Act, 78 of 1998 (as amended) for having denied the learner the right to write matric examination. The Employee pleaded guilty and the employer dismissed him, who remained in the payment roll of the Employer and earned his last salary on the 26 May 2021. The Employee is challenging his dismissal and regards the sanction as too harsh. The relief sought by the Employee is re-instatement.
ISSUES TO BE DECIDED

5. I am required to determine whether the applicant’s dismissal was substantively fair or not. If so, to order the appropriate relief.

SURVEY OF EVIDENCE AND ARGUMENT
Employer’s evidence
6. The Employer’s First witness, Ms Francinah Raesetja Rabothatha, testified that she has been employed as the Circuit manager and confirms that the Employee reported to her. . The district director informed her about a leaner who did not write the examination on the 25 November 2020 at Malusi High School. She further testified that she was driving from the camp which was attended by the learners when she received a call from the District Director. The District Director informed her about the leaner who did not write his examination. She was then instructed to suspend the Employee as the senior invigilator and informed him that he must not go to the examination room. She then went to the school concerned and approached the Employee and enquired if he had followed all the examination protocols. The Employee responded that he has followed the examination protocol and has recorded one leaner absent. The Employee told her that he requested all the leaners who were not attending the support programmes to go and fetch their parents before they can start with their examination. Johannes Moko, a leaner did not come back, whilst all other leaners came back, including those who did not come with their parents. The leaners then proceeded to the examination hall whilst the Employee engaged with the parents who were present. She further testified that the Employee was acting in accordance with the school policy that any learner failing to comply with the Policy directive will be required to call his/her parents to address the transgression. She further testified that the Employee did not intentionally deny the learner to write the examination. The leaner was sent home at about 06:50. The examination only started at 09:00 and the leaners had up to 10:00 to write their examination. The learner chose not come back. She further testified that employment relationship between the Employee and the Employer has not broken down. She further testified that in her view, dismissal sanction was harsh.

7. The Employer’s second witness, Mr Victor Dankuru Tshamano, testified that he is the chairperson of the school Governing Body where the Employee is employed as an educator and also the acting principal. He further testified that he knew about the leaner who did not write the examination on the 25 November 2020. He testified that when he and other members of the School Governing Body arrived at the school on the 26 November 2020, they came across four boys who stated they came to school about the problem of a learner who was barred from writing examination. He further testified that the school governing body held a meeting and the problem of the learner was discussed in the meeting. The school governing body was satisfied that the leaner was correctly sent home to fetch his parents because he failed to comply with the School Policy. He further testified that the Employee could not have foreseen that the leaner will not come back on the 25 November 2020. Instead that leaner came back the following day with SANCO. He further testified that it was the view of the School Governing Body that the Employee was following the School Policy and would not have foreseen the unintendent consequences of his action. There were also other leaners instructed to fetch their parents and they all came and some of them without their parents. The leaner was ultimately given an opportunity to write as per the intervention of the Constitutional Court. The learner suffered no irreparable harm as he was given the results at the same time with the learners who wrote the examination in his absence. He further testified that the employment relationship has not broken down and that the Employee was a very good employee. The action taken by the Employee was in the interest of the leaner in question. This leaner was 24 years old and was generally a problematic leaner who was not willing to comply with the School Policy.

8. The Employer’s third witness, Mr France Moshotla, testified that he was the community member who was involved in the constitutional court litigation of this matter which ordered that the right of the leaner was violated and was to be given an opportunity to write. He further testified that he was not willing to give any further evidence as his affidavit was used in the Constitutional Court.

9. The Employer’s Fourth witness, Mr Hayiseka Shivambu, testified he was the chairperson of the disciplinary hearing involving the Employee. He further testified that the Employee pleaded guilty to the charge. However, after the Employee pleaded guilty and the submission of mitigating circumstance, he was of the view that the transgression was very serious. The Constitutional Court declared that the leaner was denied the right to education and that motivated him to impose a dismissal sanction. It was put to him that the circuit manager and the Chairperson of the School governing body both testified that the employment relationship has not be broken down and that the dismissal sanction was too harsh. It was further put to him that the learner has not suffered any irreparable harm as he was given an opportunity to write and he received the results at the same time with the leaners who wrote in his absence. The witness conceded that if such evidence was available to him during the disciplinary he would not have imposed the dismissal sanction. He further conceded that he would have imposed any other sanction short of dismissal.

Employee’s evidence
10. The Employee, Mr Tlou Phillemeno Mokgonyane, testified that he has been employed by the Employer from the 19 June 1995 until he was dismissed on the 22 April 2021. The Employee testified that he pleaded guilty because he wanted to show genuine remorse because he could not have foreseen that his action would have resulted in the learner not writing the examination. He further testified that the leaner in question was one of those leaners who have been progressed. He was a learner who could not meet the requirements to progress to next grade, but was progressed. The leaner was about 24 years old and has long passed the age requirements for his grade. Those kind of leaners were required to be given support programmes in order to achieve their optimal potential. The support programme was adopted by the parents and School Governing Body. This was the Policy of the School. He further testified on the 25 November 2020, the leaner was supposed to write the Business studies. The examination was scheduled to start at 9:00. The leaners were expected to have been seated at 08:30. The leaners were also allowed to come to an examination room one hour after it has started. Once an hour lapsed, the leaners who are not present will then be recorded absent. He further testified that on the particular day, he requested all the leaners who were not participating in the support programme to go and fetch their parents. This was allowed in terms of the School policy. The instruction was given to the leaner at 06:50. He further testified that the learner’s home was about 10 to 15 minutes walk from the school. He anticipated that the learner will be back in 30 minutes which there was still enough time to sit for the examination. The leaner did not come back, but the rest of the leaners came back. Some of the leaners did not come with their parents and were allowed to sit for the examination. He then had a meeting with the parents who manged to come. He then went to the examination hall at about 10:00 and it was only then that he realised that the leaner did not come back. He further testified that he pleaded guilty as he was negligent as he would have at least taken further steps to secure the leaner when he realised that he was not back. He further testified that he was of the view that the sanction was harsh and will accept any sanction short of dismissal.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

11. Section 192 of the Labour Relations Act, 66 of 1995 as amended (the “LRA”) provides that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. Once the dismissal is established, the Employer must prove that the dismissal is fair. Dismissal is not in dispute in this case.

12. I am required to issue an award with brief reasons. I do not wish to offer an exhaustive survey of all the evidence and arguments presented at the arbitration hearing. I have had regard to everything presented to me, and what follows is a brief summary of the evidence relevant to my findings only.

13. The Employees faced a charge of misconduct formulated as follows:” You are hereby charged with misconduct in terms of section 18 of Employment of Educators Act, 78 of 1998 ( as amended) hereinafter referred as the Act in that: CHARGE : You contravened the provisions of section 18 (1)(g) of the Act in that on/around the 25 November 2020 at or near Malusi High School , you denied Johannes Moko, a Grade 12 leaner the right to write a business studies October/November 2020 final examination and therefore, you prejudiced the interest of the leaner.” The Employee pleaded guilty to the charge and was found guilty and was dismissed.The Employee is challenging the substantive fairness of her dismissal on the basis that the sanction was too harsh.

14. The evidence of the Employer was given by the circuit manager, the chairperson of the School Governing body, a community member and the Chairperson of the disciplinary hearing. The Circuit manger and the chairperson of the school governing body were very crucial in the employment relationship of the Employee. The Employee report directly to the Circuit manager and is also accountable to the management of the school and the implementation of policies to the School Governing Body. Both these witnesses’ testimony is that there was no breakdown of employment relationship between the Employee and the Employer. Their testimony went further to point out that the sanction imposed by the chairperson was too harsh.

15. The chairperson of the hearing testimony is that he imposed the dismissal sanction because he was motivated by the Constitutional court decision which confirmed that the Employee has violated the leaner’s right to education. The other witness gave no testimony except to state that he filed the affidavit in the Constitutional Court. There is no question that the Employee’s action resulted in the leaner being denied the right to write the examination.

16. Evidence was led that the learner’s right to write was restored and given an opportunity to write. In fact the leaner was received the results with the other leaners who wrote the examination in his absence. The effect was that the leaner did not suffer any irreparable damage. The chairperson of the hearing conceded under cross examination that should he have had the benefit of the testimony of two witnesses mentioned above, he would not have imposed the dismissal sanction.

17. The question is whether the sanction imposed to the Employee was appropriate. Item 3(4) of the Code of Good Practice contained in Schedule 8 of the Labour relations Act provides that: “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….”.

18. Evidence was led that the employee was implementing the Policy of the School wherein the leaners who have been progressed must be given additional support in order to realize their maximum potential. The Employee pleaded guilty and he would not have foreseen that his action will lead to the unintended consequences of denying the leaner to right to write the examination. There was compelling evidence that the employment relationship has not broken down.

19. In fact evidence was led that the Employee was a hard worker who has ensured that the school performed. I am persuaded that the Employee has shown a genuine remorse. My analysis is that this is one of those cases where the Employer has failed to apply progressive discipline. It is my finding that the employment relationship has not broken down irretrievably. In the absence of any dishonesty on the side of the Employee, it is my finding that dismissal sanction was not appropriate in this case.

20. The relief sought by the Employee is re-instatement and any other sanction short of dismissal. I also wish to point out that the Employee committed a serious transgression and deserve an appropriate sanction short of dismissal. I am accordingly, ordering the re-instatement of the Employee without back payment. The Employee’s dismissal sanction is hereby substituted with written final notice effective for 12 months and three months suspension without pay.

AWARD

21. The dismissal of the Applicant, Mr Tlou Phillemon Mokgonyane (Employee) by the Respondent, Mr Tlou Phillemon Mokgonyane Department of Education, Limpopo Province (Employer) was substantively unfair and the dismissal sanction is substituted by final written warning effective for 6 months and three months suspension without pay.

22. I order the Employer to re-instate the Employee without back payment retrospectively to work with the same terms and conditions before his dismissal and that he must report at work on the 01 September 2021.

23. No order as to costs.