In the ARBITRATION between

NAPTOSA OBO MEHLO, DORIS
(Union/Applicant)

And

HOD: EASTERN CAPE DEPARTMENT OF EDUCATION
(Respondent)

Employee’s representative: Mr Kwezi Dalasile
Applicant’s address: 68 Recreation Road
Southernwood
East London
5201
Telephone: 043 722 4104
Telefax: 043 722 4089
E-mail:

Employer’s representative: Mr Luthando Mvangeli
Respondent’s address: P.O. Box X7057
Queenstown
5320

Telephone: 045 808 5712
Telefax:
E-mail:

DETAILS OF HEARING AND REPRESENTATION

1. This arbitration was finalized on 30 January 2018 at the district offices of the Respondent in Queenstown. The parties requested and was granted 7 days in which to submit written closing arguments and they duly obliged.

2. The dispute concerns an alleged unfair labour practice relating to disciplinary action short of dismissal in terms of section 186 (2) (b) of the Labour Relations Act 66 of 1995, as amended. The Applicant was fined one month’s salary as well as a final written warning after she was found guilty on three charges of misconduct. It is this sanction she is now challenging.

3. The Applicant, Ms. Doris Mehlo, was present and was at all times represented by Mr. Kwezi Dalasile, an official from the union NAPTOSA, of which the Applicant is also a member.

4. The Respondent, the Eastern Cape Department of Education, was represented by Mr. Luthando Mvangeli, its Employee Relations Specialist.

5. The proceedings were digitally recorded.

ISSUE TO BE DECIDED

6. I am required to determine whether the Respondent committed an unfair labour practice by issuing the Applicant with a fine of one months’ salary and a final written warning for the alleged acts of misconduct. In making such determination, I have to decide whether the Respondent acted procedurally and substantively fair.

7. In the event that I find that the Respondent committed an unfair labour practice, I have to determine an appropriate remedy that I deem reasonable under the circumstances.

BACKGROUND TO THE DISPUTE

8. The Applicant was found guilty of the following charges:

1. You contravened section 18 (1) (a) of the Act in that you failed to comply with or contravenes this Act or any statute regulation or legal obligation relating to education and the employment relationship, in that you violated the declaration of confidentiality which you signed upon your appointment, by contacting the shortlisting candidates.
2. You contravened section 18 (1) (q) of the Act in that you, whilst on duty, you conducted yourself in an improper, disgraceful or unacceptable manner as you went to Zwelitsha to submit a letter without Mr. KE Jayiya’s approval who is your supervisor.
3. You contravened section 18 (1) (i) of the Act in that you failed to carry out a lawful order or routine instruction without just and reasonable cause, in that you refused to attend a meeting with the Labour Relations Officials, which is a serious case of insubordination and a display of disrespect for authority.
9. The Applicant requested an order for the re-imbursement of the one month’s fine that was deducted from her salary.

Applicant’s case

10. The Applicant testified that she was supposed to attend a disciplinary hearing on 29 to 30 September 2015, but she had an ankle injury and had to attend a doctor. She was given the notice to attend this hearing by her supervisor, Mr. Jayiya. She submitted the medical certificate to Ms. Masondo, the secretary of Mr. Jayiya.

11. She testified further that she and another colleague wrote a letter to the district director with a view to influence him to abandon the disciplinary hearing and to resolve the matter without having to go through a formal hearing. He responded that they should attend the hearing and that their non-attendance would lead to the hearing proceeding in their absence.

12. The Applicant stated further that she was part of the panel that was supposed to interview candidates for a position who, if filled, fell directly under her. She was appointed by the district director for this task. When the criteria was set for the shortlisting process, the district director, Mr. Godlo, said the application of one candidate must be set aside since she must be automatically shortlisted due to the fact that she acted in the post. According to the Applicant, no one acted in that position. This particular candidate, she stated, acted in another post because she could not cope with the work in that post.

13. The Applicant mentioned she was shocked at this move by Mr. Godlo and she went to him to have discussions with him around that issue. Mr. Godlo however informed her that he had an obligation to appoint the candidate and that she (the Applicant), must prepare herself to work with her. She informed Mr. Godlo that she would report this matter to the Chief Director.

14. She also stated that she then wrote a letter to the Chief Director, Mr. Godlo, her supervisor, as well as the labour union representatives who had observer status in the shortlisting process to request that the behaviour of Mr. Godlo be investigated. AS a result of her letter the interviews, scheduled for 30 June 2015, did not take place. She was later withdrawn from the panel and the interviews went ahead without her. The candidate who was automatically shortlisted was then appointed.

15. The Applicant testified that with regards to Charge 1, she was aware that Mr. Matundu, a member of the panel who played the role of Human Resources, wrote a letter wherein he stated that she contacted one of the candidates. She however only provided him with the telephone number of a shortlisted candidate because he mentioned to her that he could not get hold of the candidate. She noted that Mr. Matundu wrote the letter on 6 July 2015, some 6 days after the interviews was supposed to take place.

16. On Charge 2, the Applicant testified that she visited her supervisor Mr. Jayiya in hospital to hand him the letter she wrote to the Chief Director. He signed acknowledgement of the letter and when she informed him that she was going to Zwelitsha (the Respondent’s Head Office), he said “kulungile-ke mama”, meaning “its fine mama”. She then drove to Zwelitsha to submit the letter to the Chief Director.

17. Charge 3 relates to the Applicant’s refusal to attend a grievance meeting involving one of her subordinates at the Labour Relations office. The Applicant testified on this issue that she informed her supervisor that because there is no head in that section and that she would not attend a meeting arranged by junior members of the section. She previously wrote a letter to Mr. Godlo on this matter and when she was requested by her supervisor to attend the meeting, she requested Mr. Godlo to respond to her letter. She then went to his office and according to her, he understood her concerns. Mr. Godlo then promised to arrange a meeting between her and the Labour Relations office. That meeting however never took place.

18. According to the Applicant, after she had been called by the MEC regarding the sanction on appeal, she requested that the one months’ salary be deducted in installments. She phoned the MEC as well as the Superintendent General and the Superintendent General phoned Mr. Godlo regarding that, but Mr. Godlo went ahead and implemented the deduction of her full salary in August 2015.

19. Mr. Mvangeli insisted during cross-examination that her medical certificate should have been submitted by a fellow employee, to which the Applicant responded that her supervisor, Mr. Jayiya was a fellow employee. He however mentioned that Mr. Jayiya was in fact the one charging her, to which she mentioned that Mr. Godlo was in fact the one who charged her and that Mr. Godlo’s signature was on the notice to attend the hearing.

20. Mr. Mvangeli also took issue with the letter the Applicant wrote to the district director to inform him that she would not attend the hearing, but the Applicant stated that she wrote the letter in good faith because she was of the view that the issues she was charged with could be resolved without attending a hearing. She did not run away from the hearing by simply dropping the certificate. According to her, she knew she had an obligation to attend and answer to the allegations.

21. The Applicant also informed Mr. Mvangeli that she did sign the confidentiality form, but that she is a principled woman and that she could not be co-opted into wrongdoing. She reiterated her submission that the candidate that was automatically shortlisted did in fact not act in the position.

22. Ms. Nomonde Masondo testified that she is the senior personnel officer at the district office. She stated that the Applicant’s daughter brought her the medical certificate on the afternoon of the 28th of September 2015. She took this medical certificate to Mr. Jayiya’s office, but she did not phone the Applicant.

23. Ms. Masondo admitted under cross-examination that she did not have any proof that she handed the certificate to Mr. Jayiya. She just gave it to him.

Respondent’s case

24. Mr. Nkosinathi Godlo testified that the Applicant signed a confidentiality form due to the fact that the process of shortlisting and interviewing was sensitive and highly confidential. At all material times, he testified, everything must remain between the four walls. He was the chairperson of the panel and he made it clear that the panel should not communicate with anyone outside the panel. They had to protect the credibility of the process. It however came to his attention that the Applicant communicated with a shortlisted candidate and by doing so, she crossed the line.

25. Mr. Godlo testified further that any objections had to be raised in the process. Panelists were not supposed to raise objections, but had to discuss it in the panel. The panelists, he stated, cannot object to themselves. According to him, the panel agreed with the criteria and when he learnt of the letter she wrote to the Chief Director and the unions, he confronted the Applicant, she only told him that she was afraid of her supervisor Mr. Jayiya and that is why she did not raise it inside the panel. The Applicant thus had to be removed because she disqualified herself. She did not stick to basic principles of confidentiality.

26. According to Mr. Godlo, he told the panel that if there was a person acting in the post and that person must be shortlisted provided she met the criteria. When the Applicant informed him separately, he told the Applicant that he cannot entertain a discussion outside the panel. There were no queries form union.

27. On a question of whether the Applicant went to Zwelitsha without permission, Mr. Godlo responded that the Applicant was so insubordinate. She had a string of complaints against her. According to him she did in fact leave the workplace without permission.

28. With regards to Charge 3, Mr. Godlo testified that the Applicant refused to cooperate with the Labour Relations Section. The Applicant told him that she will only go to the grievance meeting if there is a head in that section. It was a case of serious insubordination. The Labour Relations Office, he stated is an independent section that reports to the district director. There was no head at that section at the time, but Mr. Mvangeli was acting in that post. He however said that they must go to the meeting to attend to the grievance. He sent her to that office.

29. Mr. Godlo came under intense cross-examination and I do not intend to record during it. I will however only refer to pertain aspects of it. He stated that the Applicant did meet with him on the issue of the candidate that supposedly acted in the position and he told her that she should have raised it from day one in the panel discussions. According to him, the candidate did render services in the district and the panel agreed that she acted. He however could not submit proof that she acted in the post. There was according to him no document require to shortlist the candidate in question.

30. Mr. Godlo also stated that he could not have agreed with her on the issue she raised and she should have gone back to the same panel and not go outside the panel with her issue. The panel affirmed their position that that is the criteria they agreed upon. It was not appropriate for the Applicant to ask a person senior to him to investigate the matter, but no one could stop her from doing that. He also admitted that the union members of the panel, although just observers, could report any concerns outside of the panel.

31. Mr. Godlo mentioned that he had little knowledge of Charge 2 other than the compliant brought to him regarding the Applicant’s behaviour on this misconduct. According to him, the Applicant left the workplace without permission. Mr. Jayiya was looking for her.

32. Ms. Masango from the Labour Relations department testified mostly on the submissions she made to the chairperson of the hearing as to why the hearing should proceed in the absence of the Applicant. She stated that on-one submitted the medical certificate on behalf of the Applicant and that it should not have been done by her supervisor, who was conflicted in the matter.

33. She further argued before the chairperson that the letter the Applicant submitted to the district director that she will not be attending the hearing was indicate of someone who was actually trying to avoid the hearing. She however conceded that she did not bring the district director’s response to the attention of the chairperson wherein he advised the Applicant to attend the hearing because she ran the risk of the hearing proceeding in her absence.

34. Mr. Mbulelo Safa testified that when he was presiding over the case. He was satisfied that all procedures were in fact followed. The Applicant was supposed to be at the hearing.

35. He took a decision to continue with the hearing because there was no request for a postponement from the Applicant and due to the fact that she wrote a letter to the district director informing him that she will not attend the hearing. He got the sense that the Applicant was trying to avoid the hearing. It was just convenient for her because she was work the previous day but she was fine a day or two later. In his view, the Applicant was disrespectful towards the person who invited her to the hearing as well other the hearing and the head of the department. Because no reason were given for the non-attendance of the Applicant at the hearing he decided to continue with the hearing.

36. Again, I do not wish to record all the evidence that came out in the cross-examination, but I wish to rather refer to it in my summary of evidence.

37. Mr. Khonza Jayiya testified that the Applicant did not submit the medical certificate booking her off-sick for the disciplinary hearing directly to him, but that it was in fact left under his door of his office. He then tried to call her, but was unable to get hold of her. According to him, he was not advised to submit the medical certificate, because it is normally submitted through the leave section. He testified further that he informed the Chairperson of the hearing of the medical certificate and he also tried to call her because there was a hearing on that day.

38. With regards to Charge 2, Mr. Jayiya stated further that the Applicant did approach him on the day in question at the hospital and brought to him the letter that she was intending to submit to the Chief Director at the Respondent’s Head Office in Zwelitsha. He asked her why she did not raise her issues in the shortlisting process. According to him, the Applicant stated that she did not want to offend the panel and himself. He however did not give her permission to go to Zwelitsha. It was not correct for the Applicant to write the letter and disclose the process.

39. He mentioned further that the employees at Human Resources as well as Labour Relations are totally separate sections and that the different section would work together through their respective heads. Mr. Mvangeli was head of the Labour Relations section. A letter inviting her to attend the hearing was issued to her, but she refused to attend the hearing. Page D.

40. Mr. Jayiya confirmed under cross-examination that he found the medical certificate under his door on the day of the hearing. He suspected that either Ms. Masondo or the Applicant placed it there. He also found it strange that Ms. Masondo would place it under his door. He confirmed that he took the certificate to the hearing and inform them thereof because he was the Applicant’s supervisor.

41. He also stated that on the day she came to him with the letter she wanted to submit to the Head Office, he told her that he cannot give her permission; only the district Director could do so. He agreed that employees have a right to complain if they are unhappy.

42. Mr. Jayiya testified that he was not aware of the meeting that took place between the Applicant and the District Director with regards to her complaint. He agreed that she had a right to go another level up if there was formal communication.

43. He also mentioned that the fact that Mr. Mvangeli was appointed as acting CES of Labour Relations and that that information was shared in management meetings and that the Applicant must have been aware of that.

ANALYSIS OF EVIDENCE AND ARGUMENT

44. Section 186 (2) (b) of the Act prohibits any unfair disciplinary action short of dismissal. The disciplinary action complained of must be disciplinary both in nature and intent.

45. The one month’s fine as well as the final written warning issued by the Respondent to the Applicant falls squarely within the provision of the above section of the Act. I am therefore required to determine whether the Applicant was indeed guilty of the misconduct levelled against her and if so, whether the sanction meted out was appropriate under the circumstances. The procedures that an employer follows prior to issuing any disciplinary action should also be scrutinized. I will deal with this issue first.

46. The procedural issue in dispute relates to the decision by the disciplinary chairperson to proceed with the hearing in the absence of the Applicant. In this regard, it is trite law that an accused employee, under normal circumstances, must be present at a disciplinary enquiry in order to be given an opportunity to refute allegations of misconduct and to present a case in response to such allegations.

47. The Applicant did not present herself at the hearing because she was incapacitated. Her ankle was in fact broke according to her and therefore could not drive to the hearing. She thus sent the medical certificate via her daughter to her supervisor. The chairperson did not accept the medical certificate at face value to postpone the hearing based on the fact there was no application for postponement as well as the fact that the Applicant previously indicating that she will not be attending the hearing.

48. It is clear from the evidence that the veracity of the medical certificate and the diagnosis from the doctor was not placed in dispute. I say this because a medical certificate normally constitutes hearsay evidence and an employer is entitled to challenge the veracity thereof. Because it was not as such in dispute that the Applicant was indeed incapacitated, it must be accepted that she was unable to attend the hearing. In other words, she did not deliberately avoid submitting herself to the hearing.

49. Given the nature of her incapacity, it is difficult to fathom that she was expected to physically appear at the hearing herself to request a postponement. It was physically not possible under the circumstance, hence she sent her daughter to submit the certificate. Mr. Mvangeli did not challenge the evidence by the Applicant that she spoke to her supervisor, Mr. Jayiya, the day before the hearing informing him that she had an ankle injury and thus could not attend. The mere fact that she did not answer her phone on the day of the hearing cannot be definitive evidence that she was deliberately trying to avoid the hearing.

50. Also, the issue of sending a representative was debated at length, unnecessarily so in my view. The Applicant clearly did not have representative at the time of the hearing to represent her. As such, no one could have requested a postponement on her behalf. In the Applicant’s mind, she informed her supervisor Mr. Jayiya that she was unable to attend work and he did not inform her that since she will be attending a hearing, she had to send another person to request a postponement on her behalf.

51. The chairperson erred in my view to seriously consider in context the letter the Applicant wrote to the district director informing him that she would not be attending the hearing. The Applicant clearly stated in the letter that she and her colleaugue wanted to avoid wasteful and fruitless expenditure and wanted the matter to be resolved by management without having to go the hearing.

52. Even though the follow-up letter from the district director wherein he cautioned the Applicant to attend the hearing was deliberately withheld from the chairperson, his evidence was that he would still have proceeded because he was of the view that the Applicant deliberately defied the district director due to her non-attendance. In the light of the subsequent medical certificate, it was not a rational conclusion. In the end, the chairperson should have erred on the side of caution and adjourned the hearing. By deciding to proceed, he did not afford the Applicant an opportunity to state her side. The Respondent thus acted procedurally unfair.

53. I now turn to the first charge. The question to be answered is whether the Applicant indeed contacted the shortlisted candidates. No direct evidence was led on this charge. Any mention of this during the course of this arbitration must be regarded as hearsay. A certain Mr. Matundu wrote a letter to the effect that the Applicant contacted one of the shortlisted candidates, a Ms Rozani. Mr. Matundu did not give evidence at the arbitration and no reason was advanced why he could not attend. There was no argument that I should accept the hearsay evidence based on any factors beyond the Respondent’s control.

54. Still on that point, Mr. Matundu mentioned in his letter that a certain Ms. Gcweca was in his office when he had this discussion with the Applicant about not contacting the candidates, yet the Respondent did not call this person and provided no reason for its failure to call her to the arbitration. The Applicant’s evidence that she only gave Mr. Matundu the number of the shortlisted candidate when he told her that he could not get hold of her, should therefore be accepted on the balance of probabilities. On the evidence therefore, the Applicant is not guilty on this charge.

55. The second charge deals with the allegation that the Applicant went to the head office of the Respondent without the approval of her supervisor. The charge does not address the issue of the Applicant divulging what transpired in the shortlisting process, but whether she sought Mr. Jayiya’s permission to go to the head office to submit the letter. It is significant that Mr. Jayiya’s was very clear in his evidence that the Applicant did in fact not require his permission. According to him, she should have asked the district director. So the content of the letter was not the issue. Even so, I have reason to believe that the Applicant did seek his approval even if it was not required on his own evidence.

56. The fact that the Applicant so vividly recall what exactly transpired on that day makes me to lean towards her version. She testified that she visited Mr. Jayiya in hospital and mentioned the name of the doctor whom he visited. She stated confidently that Mr. Jayiya said to her “kulungile-ke mama”, meaning “It’s ok Mama”. It was not disputed by the Respondent’s representative. I thus prefer her version on this issue and find that she indeed was given approval by Mr. Jayiya to go to Zwelitsha to submit a letter there.

57. Mr. Godlo, the district director, acknowledged that the Applicant approached him with what transpired in the shortlisting process, namely that he put aside the application of an employee that due to the fact that this employee had purportedly act in the advertised position. In her view, this person had not acted in the post.

58. Mr. Godlo’s evidence on this issue left much to be desired. He firstly wanted to convey the impression that he immediately requested the Applicant to leave his office when she confronted him with the person who was automatically shortlisted. Later on however, he stated that he informed the Applicant of the Collective Agreement that states that lecturers who previously worked at FET colleges must be integrated into the educator system. That must have been a reasonably lengthy discussion.

59. In my view, the Applicant had a legitimate concern with the manner in which Mr. Godlo dealt with the shortlisting process. She was the head of the section where the candidate supposedly acted and she testified that the candidate did in fact not act there. Mr. Godlo later testified that the candidate acted in that post at some point, yet he wanted to create the impression at the outset that the candidate had to be shortlisted automatically because she acted in the post at the time of the shortlisting. In any event, no documentary proof was forthcoming as proof that she acted. The Applicant’s concerns was however brushed aside and she wrote a letter to the panel as well as to the level higher than the district director. It was clear that the matter was not going to be resolved at district director level. The district director alluded to this.

60. Mr. Jayiya, during cross-examination, admitted that the Applicant was entitled to approach a level higher than the district director. I thus find that firstly, she was given approval to go to Zwelitsha to submit a letter to the chief director and that she had legitimate reasons to do so. I thus find her not guilty of this charge as well.

61. The Applicant testified on Charge 3 that she dealt with the issue of attending a grievance meeting at the office with the district director Mr. Godlo. Mr. Godlo on the other hand, denied this and testified that he told her to attend the meeting. When her supervisor informed her that she should attend the meeting, she referred him back to the letter she wrote to Mr. Godlo and informed her supervisor that she is awaiting feedback from Mr. Godlo. According to her, he agreed with her concerns and promised to arrange a meeting between the parties. Now he says he does not sit in grievance hearings.

62. Mr. Godlo, when I raised serious concerns about the timing of the charge, could not give a satisfactory reason why it took him so long to charge the Applicant even though he was aware of the misconduct at the time. He says that he was simply too busy, yet submits at this arbitration that the refusal of the Applicant to attend the meeting at the Labour Relations office constitutes a serious form of insubordination. It does not add up.

63. In my view, serious questions has to be raised as to why this allegation would rear its head again only after the Applicant disagreed with Mr. Godlo on the shortlisting process and decided to report him to his supervisor. His decision to charge the Applicant some twelve months after the incident occurred must be regarded as unfair. I say this because in the Applicant’s mind, the issue had been dealt with and in my assessment of the evidence on this issue, this was in all probability the case. I thus prefer the version of the Applicant that the matter was dealt with.

64. Even I am wrong on this score, I am of the view that the Applicant wanted to have clarity on whether there was a head in the Labour Relations office because no-one in that office could have given her a direct instruction to report to that office. The evidence was clear that the two offices operated independently and would communicate to each other via the heads of the sections. After the Applicant informed her supervisor Mr. Jayiya that she is awaiting feedback from the district director, he did not repeat his instruction that she report to the Labour Relations office. That is a clear indication that the Respondent considered the matter finalized. I thus cannot find the Applicant guilty on this Charge either.

65. My finding that the Applicant was not guilty on all charges, bring me to the issue of relief. I see no reason why the fine of month’s salary should not be re-imbursed to the Applicant. Since she was not guilty of the misconduct charges, I will also order the removal of the final written warning from the Applicant’s file.

66. In awarding compensation, I take into account that the disciplinary action was both procedurally and substantively unfair. I also take into account the fact that the Applicant was severely inconvenienced as a result of the unfair fine. I also take into account that it is a well-known fact the Respondent’s mandate to provide quality schooling in this province is under severe financial constraint.. I am thus of the view that compensation of R10 000 (ten thousand rand) is reasonable under the circumstances.

67. In the premise therefore, I make the following award:

AWARD

68. The Respondent, the HOD: Eastern Cape Department of Education, committed an unfair labour practice by issuing the Applicant, Ms. Doris Mehlo, with a fine of one month’s salary and a final written warning.

69. The final written warning issued to the Applicant is declared of no force or effect and the Respondent is therefore ordered to remove such warning from the Applicant’s personnel file.

70. The Respondent is further ordered to re-imburse the Applicant her monthly salary of R49 068.06, less statutory deductions.

71. It is also ordered that the Respondent further pay the Applicant compensation of R10 000, less statutory deductions.

72. The combined payment of R59 068.06 must be paid to the Applicant by no later than 15 April 2018.

Signature:

Commissioner: Samuel Baron
Sector: