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17 May 2021 – PSES464 – 19/20GP

IN THE ELRC ARBITRATION
BETWEEN:

S GARIB “the Applicant”

and

DEPARTMENT OF EDUCATION – GAUTENG PROVINCE “the Respondent”

ARBITRATION AWARD

Case Number: PSES464 – 19/20GP

Last date of arbitration: 31 March 2021

Final closing arguments submitted in writing on: 13 April 2021

Date of award: 13 May 2021 (extension granted)

COEN HAVENGA
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
Details of hearing and representation

1. This arbitration took place in terms of the referral of the matter by the Applicant to the Education Labour Relations Council. It was heard virtually by making use of the Zoom process. The last day of the hearing was on 31 March 2021.

2. The Applicant is Ms Garib, S, represented by Mr Winfred, N, an advocate, instructed by SP Attorneys. The Respondent is the Gauteng Department of Education (“GDE”), represented by Mr M Tsebe, M.

Issue to be decided

3. The dismissal of the Applicant is not in dispute. I must determine whether her dismissal was substantively fair. The Applicant does not dispute the procedural fairness of her dismissal.

Background to the dispute

4. The Applicant was employed as principal at Bryneven Primary School (“the School”) since I October 2016.

5. The Applicant was charged with 9 allegations of contravention of section 18(1) of the Employment of Educators Act 76 of 1998 (“the EEA”), in that:
5.1 The Applicant failed to comply with Section 37(6) of the South African Schools Act (Act 84 of 1996) in that on or about 21 August 2017 she used the school fund to procure an air fryer at R1 999.00 for her own personal use;
5.2 The Applicant willfully mismanaged the monies of the school in that on or about 21 August 2017 she procured external hard drives at R9 093.00 without being budgeted for and/ or approved by the School Governing Body;
5.3 The Applicant failed to comply with Section 37(6) of the South African Schools Act (Act 84 of 1996) in that, between the period of 01 November 2017 and 31 December 2017, she allowed the use of school vehicles (with registration numbers: BR45PGGP and ZTR113GP) for personal benefit;
5.4 The Applicant committed an act of gross dishonesty in that, during the year 2016, she did not alert the Department of the additional remuneration of about R489 942.70 which was paid to the employees (including herself) that was in contravention of Section 38A of the South African School Act, 84 of 1996, as amended;
5.5 The Applicant committed an act of gross dishonesty in that, during the year 2017, she did not alert the Department of the additional remuneration of about R366 173.29 which was paid to employees (including herself) that was in contravention of Section 38A of the South African School Act, 84 of 1996, as amended;
5.6 The Applicant committed an act of dishonesty in that during on or about 30 November 2016 she did not alert the Department after additional payment or reward of about R401 996.00 that was allocated to staff members (including herself) in the form of performance bonus without the approval of the Department;
5.7 The Applicant willfully mismanaged the finances of the school in that on or around December 2018 she appointed four (4) Teacher Assistants and paid each a salary of R12 000,00 without the approval of the School Governing Body;
5.8 The Applicant, during August 2017, conducted herself in an improper and unacceptable manner in that she offered Ms Zaheera Asvat (who was not qualified as Educational Psychologist) a position of an Educational Councilor without the approval of the School Governing Body. The School Governing Body had to reach a settlement with her lawyers which meant she would relinquish her position for a compensation of R53 800,00; and
5.9 The Applicant, during the year 2017, conducted herself in an improper and unacceptable manner in that she offered Ms Lian Chetty a position of Remedial Educator without the approval of the School Governing Body.

6. The Applicant denied all the allegations. She was dismissed on 13 August 2019 following a disciplinary hearing and unsuccessful appeal to the MEC.

7. The relief the Applicant seeks from this arbitration hearing is retrospective reinstatement without loss of benefits.

Summary of evidence

The proceedings have been recorded digitally, and a summary of the Respondent’s and Applicant’s witnesses’ evidence follows below. What follows is only a summary of evidence deduced at the arbitration hearing and does not purport to be a verbatim transcription of all the testimony given. The recordings of the proceedings will reflect the complete testimony of the witnesses.

Respondent’s case

8. The Respondent submitted the documents contained in bundles A and B.

9. Emily Magadla (“Magadla”) testified under oath that she was the chairperson of the disciplinary hearing of the Applicant. She committed no procedural irregularities. Her outcome report is reflected in page A27-35 of Bundle A.

10. Under cross-examination Magadla confirmed that she did not rely on a report of a forensic auditor’s report to make her findings.

11. Note: Although the Applicant initially indicated during opening statements that procedural fairness was also in dispute, the Applicant later placed on record that procedural fairness is in fact no longer in dispute.

12. Naeem Nakooda (“Nakooda”) testified under oath that he is the acting principal at the School. The Applicant was appointed principal in 2016. He disputes that he is only testifying against the Applicant in order to get her principal post. Their relationship became strained after an annual general meeting in 2017. The meeting was tense because parents were unhappy about certain issues.

13. His statement is reflected in B7-8. The Applicant bought external hard drives for use by the school management team (“SMT”). He collected his hard drive but did not use it as there was no need for it. The School has an IT network and backup to the cloud. The Applicant told him about her purchase of the air fryer at Makro. The money for the air fryer was paid back to the school fund by Ms Singh. Nakooda did not understand why the Applicant did not pay back the money.

14. In respect of allegation 1 Nakooda referred to section 37(6) of the South African Schools Act 84 of 1996 (“SASA”), which states that the school fund, all proceeds thereof and any other assets of the public school must only be used for educational purposes, at the or in connection with such school, or another public school by agreement and consent of the Head of Department (“HOD”), for the performance of functions of the governing body (“SGB”) or for another educational purpose agreed between the SGB and the HOD. The Applicant contravened section 37(6) of SASA by purchasing the air fryer for herself with school funds. The SASA does not state that school funds may be used for personal reasons as long as it is paid back later.

15. In respect of allegation 2 Nakooda testified that the School has an advanced IT network since 2013 and there is no need for the use of external hard drives. The hard drives in laptop computers were also sufficient. The hard drives which the Applicant purchased were not budgeted for and was not approved by the SGB prior to being purchased. The purchase of the hard drives was discussed with the SMT only after it was bought. The Applicant said the SGB should not question the SMT’s purchase of the hard drives. The SMT may discuss purchases which had been budgeted for and was for educational purposes, but it was not the case with the hard drives. The SGB was unhappy and reprimanded the Applicant for irregular financial management.

16. In respect of allegation 6 Nakooda testified that the Applicant was appointed on 1 October 2016, and she joined the staff later in October 2016. A performance bonus relates to a person’s achievements for the whole year. An employee cannot qualify for a performance bonus in November if she only started in October. The Applicant’s name was not part of the discussion meeting reflected in B294. Nakooda is unable to say why she received a performance bonus if her name was not on the list. The principal is the representative of the HOD, and she must ensure the School is run in accordance with the SASA. She must advise the SGB in respect of GDE policies and SASA requirements. The Applicant did not do that.

17. In respect of allegation 7 Nakooda testified that the School only had a budget for 2 teacher’s assistants at R6000,00 each, not for 4 teacher’s assistants at R12 000,00 each. In 2017 the School had 4 teacher’s assistants at R12 000,00 each, which was not approved by the SGB.

18. In respect of allegation 8 Nakooda testified that the SGB had a budget for 2 educational psychologists and did not have a budget for an educational councillor. The SGB wanted a fully qualified educational psychologist. Ms Zaheera Asvat (“Asvat”) was only an educational councillor, and not an educational psychologist. Asvat was requested not to come to work, but she continued to do so. Asvat sent a letter of demand for payment. The Applicant said that the SGB should pay her, or she would encourage Asvat to go to her lawyers. The SGB was surprised that the Applicant would oppose the SGB. The Applicant walked out of that meeting. The SGB decided to settle the dispute with Asvat. The Applicant knew Asvat from a previous Fordsburg Primary School where they worked together before.

19. Under cross-examination Nakooda testified that he is the position of principal which was occupied by the Applicant before her dismissal. He did not aspire to get her position. He did want to become principal but did not desire it. He applied for the position when it became vacant and was appointed. He was a competitor for the position at the time when the Applicant was the successful candidate. His evidence is not tainted by his interest in the Applicant not being reinstated.

20. Section 37 of SASA is intended to prevent the misuse of school funds. He cannot comment on the Applicant’s intentions when she bought the air fryer with school funds using the School’s debit card. She said she forgot her own purse. The Applicant did not conceal the purchase. The actual purchase of the air fryer with the School’s debit card is the offence she committed. It was not for educational purposes. She did say she was going to pay back the money. He cannot comment on whether she had an intention to steal school funds. It did constitute irregular financial management of school funds. She did receive a warning from the SGB as reflected in B62, paragraph 2.

21. The purchase of hard drives for R9093,00 was wrongful as it was not approved by the SGB. The server was installed in 2013/2014. It was remotely supported by Dial-a-Nerd. He does not recall issues with the server. He agrees that the hard drives were bought with good intentions to assist the SMT. He received a hard drive but did not use it. He returned it to Ms Van Niekerk, the procurement official, at a later stage. He cannot say whether it was budgeted for or not.

22. Nakooda testified that in respect of allegations 3 and 4 he cannot really say whether the payments exceeded the budgeted amounts. He cannot say whether the GDE approved the budgeted amounts. He has no personal knowledge of the allegations 7 and 8.

23. Aman Singh (“Singh”) testified under oath that he used to be part of the SGB during 2017 to 2018. He was the treasurer. In respect of allegations 1 and 2 he testified that he queried the purchase of the air fryer. It was not budgeted for. The external hard drives were an unnecessary expenditure. There quotes were required for purchases over R5000,00. It was not an unforeseen purchase. It was not discussed in the SGB and there was no need for external hard drives.

24. In respect of allegation 3 Singh testified that Thomas Maluleke told him that the Applicant instructed him to pick up Ms Naicker’s children from school and to take them home. He questioned the Applicant about it, and she told him that she was the principal and could do whatever she wanted to do. The School’s vehicle was used for personal purposes, also to go to lawyers.

25. In respect of allegation 8 Singh testified that the School wanted to appoint an educational psychologist, not an educational councillor. The Applicant had to obtain three CV’s and short list candidates. She then unilaterally hired Asvat. The SGB found out later that Asvat was not a qualified educational psychologist. The SGB would not have appointed her. The Applicant did not follow the proper procedure when she hired Asvat. The SGB had to let Asvat go and settle her dispute with her. They had to pay three months’ salary as a settlement. Asvat was a friend of the Applicant. The Applicant denied it, but they found a Facebook post of them together in a photograph, taken a long time ago. They also found out they worked together at a previous school. The SGB was not involved in the interviews. Asvat was only allowed to consult with learners under supervision, and that was not what the SGB wanted. A502 shows that her contract was not signed by the SGB as she did not meet the requirements of the position. Asvat went to her lawyers, and the School suffered a huge financial loss in the settlement.

26. In respect of allegation 7 Singh testified that the School wanted to hire 2 teacher’s assistants at a salary of R6000,00 each. The Applicant hired four friends of her. She did not follow proper processes. The School agreed to keep them, although it was not budgeted for. They signed their contracts because the Applicant lied to them. She told Ms V Singh that SGB approved the appointments, and then she told the SGB that Ms Singh approved it. She manipulated them into signing the contracts.

27. Under cross-examination Singh testified that he raised concerns about the air fryer a day or two afterwards. The Applicant was not supposed to use the School’s debit card and school funds to buy an air fryer. The issue is that she used school funds for a personal purchase. The School’s driver and secretary were not authorised to give her permission to use school funds in that manner. Her intention does not matter, she used school funs irregularly.

28. There was no need for the purchase of external hard drives. The School had an effective IT system and server. The SGB and SMT were not aware that she was going to buy it. She only had a meeting with the SMT afterwards. She could have logged a call if she had issues with the server. The purchase was not budgeted for and not approved by the SGB.

29. There was no need for the School’s vehicle to pick up children from Bryanston High School. The Applicant instructed Thomas Maluleke, the driver, to do it. Maluleke said the Applicant also instructed him to take Asvat to her lawyers with the School’s vehicle.

30. The Applicant hired Asvat without involving the recruitment committee consisting of Farrell and Taylor. They only became aware of her appointment when she was introduced to the staff. Singh does not agree that Asvat was the only suitable candidate amongst all the CVs received. She was allowed to work for three months because the Applicant hired her. They could have done something to mitigate their losses the day after the appointment, but the Applicant was their advisor in respect of school policies. The Applicant told them that she hired Asvat. Asvat was allowed to work for three months. Singh cannot dispute that the Facebook photograph of the Applicant and Asvat was taken by someone else at a farewell party.

31. Although they budgeted for two teacher’s assistants, four were appointed. Their contracts were signed off by the SGB chairperson.

32. Thomas Maluleke (“Maluleke”) testified under oath that he works at the School as driver and messenger. He takes his instructions only from the principal. The rules do not allow him to transport learners who are not in the School.

33. In respect of allegation 3 Maluleke testified that he received an instruction from the Applicant to transport a learner of Bryanston High School. He took the child to his home in Ferndale, about 4/5km away. It was the child of Ms Naicker. He did not want to be insubordinate, that is why he complied with the instruction. It was not the right thing to transport learners from other schools. He was also instructed by the Applicant to take Asvat to the Department of Labour on one occasion. He accepted that the Applicant had the authority to give those instructions.

34. In respect of allegation 1 Maluleke testified that the Applicant used the School’s debit card and school funds to buy the air fryer at Makro. He went there to buy groceries, and the Applicant accompanied him. She saw the air fryer on special and told him that she was looking for it for a long time. She said she forgot her bank card at the School. He proposed that she buy it with the School’s debit card and replace the money later. He advised her, he did not instruct her. He knew it was wrong, but he thought she knew what she was doing because she was the principal.

35. Under cross-examination Maluleke testified that he took his orders from the Applicant. Ms Naicker was in class when he picked up her child. They were busy with exams. It was a different school, it cannot be said that he was serving the GDE. He could not question the Applicant’s authority when she gave him the instruction. He took Asvat to the Department of Labour, not to FNB. He dropped her there and went back to the School. He picked her up later. He did not discuss the matter with Aman Singh. He did not take Asvat to her lawyers.

36. Gillian Whitcher (“Whitcher”) testified under oath that she used to be the School’s bursar. She retired at the end of 2020. Her statement is reflected on B12. Ms Singh paid for the air fryer when Whitcher asked her a day later. The Applicant contravened section 37(6) of the SASA, even if the money was paid back. As principal she should have known that the use of school funds for personal use is not allowed. The external hard drives were not budgeted for. The School had a sophisticated IT system in place, and there was no need to buy the hard drives.

37. In respect of allegation 4 Whitcher testified that the Applicant asked for a section 38A of SASA payment. It was not approved by the GDE. She knew that and still accepted payment. The Applicant also demanded the payment of a 14th and 15th cheque. She said it had been approved in Whitcher’s absence. A late section 38A application was put through, which was never signed. The Applicant was supposed to advise the SGB in respect of the SASA. The payment of R77 000,00 to the Applicant was not lawful. There was approval from the GDE to pay it. The SGB could not bypass the GDE’s approval. Whitcher was extremely concerned that the Applicant would ask for a 14th cheque after being at the School for one month only, and after having received an additional R25 000,00 backdated to when she was not even at the School yet.

38. In respect of allegation 5 Whitcher testified that there was no permission for the monthly section 38A payment made to the Applicant in 2017. She expected of the Applicant as the principal not to accept the payments, as it was not approved.

39. In respect of allegation 6 Whitcher testified that the Applicant was not entitled to the performance bonus, and she should have advised the SGB that payment without GDE approval was not allowed.

40. In respect of allegation 7 Whitcher testified that the SGB budgeted for two teacher’s assistants at R6000,00 each, but the Applicant appointed four at R12 000,00 each. Whitcher told the Applicant that they have not budgeted for it, but the Applicant said she could cover it out of the locum budget. It constituted financial mismanagement.

41. Under cross-examination Whitcher testified that Maluleke did tell her that the Applicant would pay back the money for the air fryer. The issue is that school funds were used for personal use. She had to ask Ms Singh to make the refund. The hard drives were not budgeted for.

42. Whitcher was employed by the SGB. The SGB applied for the section 38A payments. They instructed her to make payments. A section 38A application was authorised for the previous principal, Mr Larson. He left at the end of 2016. The submissions for 2017 would have been made in June 2016, before the Applicant arrived. They made a late application for the Applicant, but it was not approved by the GDE. The table in allegation 4 shows what was paid in excess of what was approved.

43. In respect of allegation 5 the GDE was alerted about the payments. The chairperson of the SGB, Videshni Singh, was a lawyer. Whitcher did tell the SGB that it was unauthorised payments.

44. In respect of allegation 6 the committee of the SGB made the decision to award the performance bonus to the Applicant. There was a section 38A application, but the amount that was paid was in excess of what was approved. The files at the School will show the difference between what was approved and what was paid.

45. In respect of allegation 7 Whitcher testified that she cannot say that the Applicant appointed them. She cannot comment on whether it was the SGB that appointed them. She was not part of the appointments of the teacher’s assistants. Their salaries were not budgeted for, though.

46. Videshni Singh (“Videshni”) testified under oath that she was the chairperson of the SGB in 2016/2017. She is a qualified lawyer, but not a practising attorney.

47. She testified in respect of allegation 4 that they knew about SASA. They knew about section 38A. They did not do any SGB training or induction. They were not given the policies and procedures form the GDE. Bonusses were discussed each year. They applied for approval form the GDE. Ideally a person should have been at the school for the year. The Applicant was not part of the section 38A application that was approved for the year 2016. They included the Applicant because she requested it. They made a mistake, but the Applicant did not correct them. She had the knowledge of SASA. She rather included herself in an unlawful process. Section 16A of SASA requires of the principal to inform the SGB about policy and legislation, and to assist and advise the SGB with the management of the school’s funds, to take all reasonable steps to prevent any financial maladministration or mismanagement by any staff member or by the SGB, and to report any maladministration or mismanagement of financial matters to the SGB and to the HOD. The Applicant was the HOD’s representative in the SGB. She wanted payment even if it was wrong. The witness would have expected of her to query payments which she was not entitled to.

48. Videshni testified in respect of allegations 5 and 6 that the SGB was not told that they were wrong. The Applicant did not ensure that the SGB complies, while she was the compliance person. The SGB made mistakes, but the Applicant did not alert them to it. She deliberately misguided them.

49. In respect of allegation 7 Videshni testified that the Applicant lied to her when she told her Farrell agreed to the appointment of 4 teacher’s assistants, and that he would find the money to pay them. The SGB budgeted for only 2 at R6000,00 each. The Applicant played them off against each other. Farrell did approve the appointments, but it was not budgeted for. Not keeping to the budget constitutes mismanagement of school funds.

50. Videshni testified in respect of allegation 8 that Asvat was appointed on 1 September and they only found out about it on 14 September. They wanted a qualified educational psychologist, and they challenged Asvat’s appointment because she was only an educational councillor. The Applicant was forceful to ensure Asvat stayed on and worked with her lawyers against the School. They had to pay compensation to Asvat in the end.

51. In respect of allegation 9 Videshni testified that there was no need for a remedial educator. The Applicant appointed a friend without SGB authorisation. No proper process was followed.

52. In respect of allegation 2 no warning letter was issued to the Applicant. There was no need for an no budget for external hard drives. The School’s IT system was efficient. It was an unnecessary expenditure by the Applicant, without a budget or authorisation. Only after the purchase did she meet with the SMT.

53. Under cross-examination Videshni testified that in respect of allegation 4 the SGB did alert the GDE. The SGB makes the section 38A applications, not the principal. Videshni agrees that the SGB alerted the GDE in respect of allegations 4, 5 and 6. The SGB made the decision to pay the Applicant her a performance bonus. Videshni does not deny that the SGB made mistakes, but the Applicant should have guided them, as she had the knowledge of SASA. The SGB did not receive any training, and the Applicant told them during her interview that she knows SASA inside out. Section 16A of SASA is relevant.

54. In respect of allegation 7 Videshni testified that it was a SGB appointment. She signed off on the appointment in consultation with Farrell. She did not check the budget. She relied fully on the principal to guide them. The Applicant played them off against each other.

55. In respect of allegation 8 Videshni testified that although Asvat was at the School form 1 September, the SGB only became aware of her appointment on 14 September. She has no knowledge of a conversation between the Applicant and Farrell. She would expect Farrell to have signed Asvat’s employment contract if he did approve her appointment. The SGB wanted a psychologist, not a councillor.

56. In respect of allegation 9 Videshni testified that they did not need a remedial educator. The Applicant created a position for her friend.

57. Vanessa Barnes (“Barnes”) testified under oath that she was employed at the School as an educational psychologist from January 2015 to 31 August 2017. The Applicant asked her to source CVs for her replacement. She gave her the CVs of five educational psychologists. Asvat was not one of them. She was not involved in the process thereafter. Asvat was appointed. She was only a registered councillor, not an educational psychologist. She had limited functions as he had work under supervision of an educational psychologist. She could do limited assessments, which formed a big part of Barnes’s daily tasks at the School. The School needed an educational psychologist in order to continue with the work Barnes did. There was no position for a registered councillor.

58. Under cross-examination Barnes testified that she cannot comment on whether any of the CV’s she gave to the Applicant were available full time or not. Asvat could only provide basic counselling and was extremely limited in terms of doing assessments. She did make the SGB aware that Asvat was not an educational psychologist.

59. Jacqueline Blignaut (“Blignaut”) testified under oath that she is the PA to the principal since April 2016. She takes minutes of all meetings and interviews. She draughts contracts of employment for SGB staff appointments. Her list of duties appears on B433. She is not aware of a SMT meeting where external hard drives were discussed. If there was such a meeting, she was supposed to take minutes. There was no advertisement for the position of educational psychologist, teacher’s assistants, or remedial educator. It would her duty to place such advertisements. There was no shortlisting process for any of those positions. She would have arranged it.

60. In 2017 the Applicant asked her to minutes at the SGB meetings. The minutes she took are an accurate reflection of what transpired in those meetings. Sher cannot confirm whether a decision was taken to appoi8nt only 2 teacher’s assistants.

61. Under cross-examination Blignaut testified that there is no indication in the minutes that a decision was taken in respect of teacher’s assistants. The SGB signed their contracts and was aware that they were paid R12 000,00 per month. It was done without objection. There were no interviews. The Applicant told her to insert R12 000,00 as salary in their contracts. The witness agrees that the SGB would have made the decision to employ them. She received an external hard drive but did not use it. She is not aware of problems with the server. She has no idea why the external hard drives were purchased.

62. Raoul Blignaut (“Raoul”) testified under oath that he was the IT director for the School in 2017. There was no need to buy external hard drives as the School migrated to the Outlook Server on the Cloud in 2014. One Drive is available to store all data. They also have the school server in addition to One Drive. They never had a failure, and no data can be lost. They also do daily backups. Every laptop in the school also has its own backup and hard drive. There was never a need for external hard drives. They never budgeted for external hard drives. He was part of the SMT, and the Applicant never consulted with them before purchasing the external hard drives.

63. Under cross-examination Raoul testified that he manages and sign off on all IT expenditures. The Applicant never requested training on any of the backup systems. She should have consulted him before she bought the external hard drives. She did not follow any due process.

64. William Makgabo (“Makgabo”) testified under oath that he is the Director: Compliance at the GDE. He has 20 years’ experience in investigation of fraud and corruption.

65. Allegations 4, 5 and 6 relates to payments in terms of section 38A of SASA. Schools are not allowed to make such payments without approval from the GDE. The payments were made in contravention of section 38A. It creates a risk of fraud and corruption in the management of public funds. The Applicant was dishonest in that she failed to report transgressions in the management of public finances and benefitted from the non-compliance. Section 16A of SASA places that duty on principals.

66. Under cross-examination Makgabo testified that section 16A of SASA conferred the duty to alert the GDE on the Applicant. Any payment made in contravention of section 38A of SASA is maladministration and mismanagement of public funds. The principal acts as the representative of the HOD in terms of section 16A of SASA. She had the duty to advise and assist the SGB in respect of any decision taken contrary to SASA. Section 16A of SASA related to any financial matter, including section 38A of SASA payments. The Applicant was expected to report to the GDE that the SGB has taken decisions to pay employees money that was not approved. She also had the duty to advise the SGB, and to report irregularities. She had the responsibility to ensure that irregular payments did not occur. The bottom line is that section 38A of SASA payments must comply with the law and that Applicant had the duty to report it if it did not comply. It was dishonest to accept money that was not paid in compliance with SASA.

Applicant’s case

67. The Applicant submitted the documents contained in bundle C and exhibit D.

68. Shamin Garib, the Applicant, testified under oath that she was appointed as principal at the School with effect from 1 October 2016. She later found out that she was not the SGB’s preferred candidate. They preferred Nakooda. He has now replaced the Applicant at the School.

69. In respect of allegation 1 the Applicant testified that Maluleke was going to Makro to buy items for the School. Van Niekerk told the Applicant there were external hard drives on sale, and she went with Maluleke to Makro. She noticed the air fryer that was on special. She mentioned it to Maluleke. She told him that she did not have her purse with her. Maluleke said she should buy it with the School’s card. She phoned the bursar, who said it was no problem as long as she refunded the School. She paid for it separately, using the School’s debit card and school funds. She gave the receipt to Witcher and said that she would do the refund. She realised her card was at home, and asked Singh to pay it so long. Singh had extra-mural activities, and by the time she got to finance, the office was closed. She paid it the next morning. She did not think to check what SASA stipulated before she made the purchase. It was done on the spur of the moment, and she paid it back the next day. There was no loss to the School.

70. In December 2017, the parents called in the GDE, Mr Edward Mosui. He advised the Applicant to report to the district office from then on for her own safety. It was a precautionary transfer because the GDE felt that her life was at risk. She reported to the district office until she received the notice of a disciplinary hearing in October 2018.

71. In respect of allegation 2 the Applicant testified that she did not wilfully mismanage school funds. Some teachers told her that they struggled with the server when saving work. She spoke to the SMT about it. The SMT decided that they must buy external hard drives to store curriculum documents on. Van Niekerk requested quotes for external hard drives. The chairperson of the SGB approved the purchase. The problem was that one had no data when you went home, and then you did not have access to one’s work. The external hard drives alleviated that problem. It was her understanding that as principal she had the discretion to make such purchase. In 2017 the data was not sufficient. It was necessary to buy the external hard drives. It was entered into the asset register and distributed amongst the SMT members. One was also given to be used by the magazine. She did not have much interaction with Raoul during the two days he was at the School. He did not tell her how the system worked. She just knows that there was a server which troubled the teachers in terms of saving their work.

72. In respect of allegation 3 the Applicant testified that she did not use the School vehicle for her own personal benefit. It was in examination time in November 2017. Ms Naicker had invigilating duties but had to pick up her son from Bryanston High School. Everybody else also had duties, so the Applicant thought the best solution was to have the School driver pick up her son with the School’s vehicle. She tried to accommodate her staff. It was not for her own personal benefit. She helped a teacher, and the School benefitted from it.

73. In respect of allegation 4 the Applicant testified that she saw those figures for the first time when she received the charge sheet. She has no idea how it was calculated. She did not see it, so she could not have alerted the GDE. The SGB took responsibility for all the payments. Videshni told her that she applied on behalf of the Applicant. She said it was approved and paid. There is no evidence that the variances are correct. There was an approved amount for her. It was budgeted for Larson’s principal post, but because she then occupied his post, it meant it was budgeted for her as well. It was paid to her for fulfilling her duties.

74. In respect of allegation 5 the Applicant testified that there is no evidence as to how the figures were calculated. There is no evidence that the R310 385,56 was paid to her. She was not paid that amount. She received about r 225 000,00 and R300 000,00 was approved for the new staff member, which was she. The SGB applied and thus alerted the GDE.

75. In respect of allegation 6 the Applicant testified that she received that performance bonus. It was discussed by the SGB. B 341 reflects the application for approval. She accepted it as being legitimate.

76. In respect of allegation 7 the Applicant testified that it was a recruitment process by the SGB for teacher’s assistants. Videshni signed their contracts. The Applicant cannot appoint staff on behalf of the SGB. She obtained CVs on request of Videshni and gave it to her. The SGB drew up their contracts, inserted the salaries, signed it, and appointed them. The Applicant did not pay them. The bursar put it in the system and the SGB paid them.

77. In respect of allegation 8 the Applicant testified that they looked at the CV’s given to them by Barnes. She also received Asvat’s CV via email. All the persons sourced by Barnes were full time in private practice. The School needed a full-time appointment. Asvat was the only one available for a full-time appointment. There was no real need for a psychologist. Barnes only handed over five individual cases. They could contact the Department’s School Based Support Team if there was a need for a psychologist. The School was not left in the lurch.

78. The Applicant never encouraged Asvat to seek legal help. She asked about the Department of Labour, and the Applicant asked Maluleke to show her where it was. Singh lied when he said she asked Maluleke to take her to her lawyers. The SGB refused to pay her, and she sought legal advice. They bullied her into a settlement. The settlement was merely for the salary they owed her for the time she worked. It was not compensation.

79. In respect of allegation 9 the Applicant testified that Farrell signed the contract. The Applicant does not understand how she could be accused of offering her the position when the position was created by the SGB. The SGB employed her and paid her. The Applicant merely recommended her. Chetty is still at the School in a departmental post.

80. The Applicant denies guilt on all the allegations. The Applicant reported a whole year to the district office. She declared a dispute, and the ELRC rules that she had to go back to the School. That is when the allegations were brought against her. It was malicious. The forensic investigation was completed then.

81. Under cross-examination the Applicant testified that the section 37(6) of SASA does not allow for the purchase of the air fryer for her use. It is not about her not complying, she did not think of the SASA. She cannot agree that she did not comply with SASA. She does not feel that she mismanaged school funds. She agrees that section 37(6) of SASA does not provide for the purchase of personal items with school funds, to be paid back later.

82. Farrell will not be called to corroborate her testimony. She did talk to him about the external hard drives. She did not tell the meeting reflected on B61 that Farrell was aware that she was going to buy the external hard drives. She cannot explain why she did not tell the SGB that when they queried the purchase. She agrees that it could have vindicated her. Singh wrote on the receipt for the hard drives that it needed review. He went and wrote it only after the meeting. The Applicant cannot explain why that allegation was never put to Singh in cross-examination. The Applicant will not call Van Niekerk to corroborate the request for quotes for external hard drives. Nakooda was aware that they were going to purchase external hard drives. The Applicant cannot explain why that allegation was never put to Nakooda in cross-examination. The server gave problems and she thought it prudent to get the external hard drives.

83. The Applicant agrees that there is no legal basis for the decision to use the School’s vehicle to pick up a child from another school. Naicker gave her permission and she use her discretion. The vehicle is a school asset in terms of section 37(6) of SASA. She did not break the law. She decided to assist a teacher in the best interest of the School. It would have affected the School if she were out of her class for half an hour. She cannot explain why she did not dispute Maluleke’s evidence that she instructed him to take Asvat to the Department of Labour.

84. In respect of allegations 4, 5 and 6 the Applicant testified that she was present in the bonus meeting. No amounts were discussed. In November and December 2016 Nakooda dealt with the financial responsibilities. She did not have section 38A experience. It was the first school where she came across it. She arrived in 2016, she started having issues with financial matters in February 2017 and in June 2017 she involved the ISDO. The GDE visited the School in August 2017, and in September 2017 the SGB colluded to bring in auditors, who arrived in November 2017. In January 2018 she was told to report to the district office. She did not see a problem with the payments, she just received a letter stating that she would receive it. She had no figures that could make her ware that there was a problem with section 38A payments. With the knowledge she now has, she realises that she should have had source documents when the payments were discussed. She went for section 38A training in 2017. After her training she did not report to the GDE that previous section 38A payments were done without source documents. The SGB kept all financial matters a royal secret. She did tell her ISDO, Thabo, that procedures were not followed. That qualified to her as alerting the GDE.

85. She does not agree that she did not alert the GDE because she shared in the irregular payments. She did not request payment. Witcher approached her with the decision that the SGB wanted to pay her for October. Raoul is the one who said they should pay her. She did not put that allegation to Raoul in cross-examination because he did not testify about financial issues. According to the Applicant the bonuses were not irregularly paid, therefore she did not report it to the GDE.

86. In respect of allegations 7, 8 and 9 the Applicant testified that the SGB informed her that they took a decision to appoint teacher’s assistants before she arrived. She did not have the budget figures and merely recommended five CV’s. She did not instruct Blignaut to insert R12 000,00 in the contracts. It was not her responsibility to advertise the positions. She merely sourced CV’s. she did not interview the teacher’s assistants. The SGB formed a selection committee of which she was not a part. Her recommendations could have been accepted or rejected. It was the SGB’s prerogative. It the SGB was not happy with the recommendations for the three positions, they should not have employed them and allowed them to work for 12 months, 7 months and two and a half months, respectively. The Applicant did not employ them, and she did not pay them.

87. The circumstances prevented the appointment of an educational psychologist. It was the SGB’s decision to appoint her. Only after the fact they disapproved of her appointment. They still kept her for the month, and then the treasurer decided not to pay her. They appointed her on a four-month fixed term contract.

88. The circumstances at the School prevented her from exercising her responsibilities. She agrees that Larson’s duties differed from hers, but the budgeted amount was still available. It was applied for and approved in his name. The SGB made the decision to pay her form that budgeted and approved amount.

Analysis of evidence and argument

89. Both parties submitted extensive written closing arguments which form part of the record and will not be repeated here. I have considered all the legislation, arguments, legal principles, case law and Codes of Good Practice referred to by the parties, together with the other evidence, oral and documentary, presented by the parties during the arbitration hearing, as reflected in the record of the arbitration hearing.

90. In considering the fairness of the dismissal of the Applicant for misconduct, I will consider the principles contained in Schedule 2: Disciplinary Code and Procedures for Educators, promulgated in terms of the EEA, the principles contained in the Code of Good Practice: Dismissals, as contained in Schedule 8 to the Labour Relations Act 66 of 1995 (the Code), as well as the provisions of the South African Schools Act 84 of 1996. The dismissal of the Applicant is not in dispute. The Applicant disputes only the substantive fairness of her dismissal, and the Respondent is therefore required to prove on a balance of probabilities that it was substantively fair.

91. Arbitration hearings are not merely reviews of the employer’s decision to dismiss employees, or the propriety of the procedures followed by the employer (John Grogan Dismissal 320 (2002)). It is important to keep in mind that an arbitration hearing constitutes a full de novo rehearing on the merits as well as an investigation of the fairness of the procedure followed by the employer, should the latter be in dispute. The decision of the arbitrator is not reached with reference to the evidential material that was before the employer at the time of its enquiry, but on the evidential material placed before the arbitrator during the arbitration hearing. This means that all relevant evidence must be placed before the arbitrator in proper form, even if it has been fully canvassed at the employee’s disciplinary hearing. (See Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] JOL 20811 (CC, where the Court approved the LAC dictum in Count Fair Foods (Pty) Ltd v CCMA & Others [1999] 11 BLLR 1117 (LAC)).

92. The Applicant was charged with 9 allegations of contravention of section 18(1) of the Employment of Educators Act 76 of 1998 (“the EEA”), in that:
92.1 The Applicant failed to comply with Section 37(6) of the South African Schools Act (Act 84 of 1996) in that on or about 21 August 2017 she used the school fund to procure an air fryer at R1 999.00 for her own personal use;
92.2 The Applicant willfully mismanaged the monies of the school in that on or about 21 August 2017 she procured external hard drives at R9 093.00 without being budgeted for and/ or approved by the School Governing Body;
92.3 The Applicant failed to comply with Section 37(6) of the South African Schools Act (Act 84 of 1996) in that, between the period of 01 November 2017 and 31 December 2017, she allowed the use of school vehicles (with registration numbers: BR45PGGP and ZTR113GP) for personal benefit;
92.4 The Applicant committed an act of gross dishonesty in that, during the year 2016, she did not alert the Department of the additional remuneration of about R489 942.70 which was paid to the employees (including herself) that was in contravention of Section 38A of the South African School Act, 84 of 1996, as amended;
92.5 The Applicant committed an act of gross dishonesty in that, during the year 2017, she did not alert the Department of the additional remuneration of about R366 173.29 which was paid to employees (including herself) that was in contravention of Section 38A of the South African School Act, 84 of 1996, as amended;
92.6 The Applicant committed an act of dishonesty in that during on or about 30 November 2016 she did not alert the Department after additional payment or reward of about R401 996.00 that was allocated to staff members (including herself) in the form of performance bonus without the approval of the Department;
92.7 The Applicant willfully mismanaged the finances of the school in that on or around December 2018 she appointed four (4) Teacher Assistants and paid each a salary of R12 000,00 without the approval of the School Governing Body;
92.8 The Applicant, during August 2017, conducted herself in an improper and unacceptable manner in that she offered Ms Zaheera Asvat (who was not qualified as Educational Psychologist) a position of an Educational Councilor without the approval of the School Governing Body. The School Governing Body had to reach a settlement with her lawyers which meant she would relinquish her position for a compensation of R53 800,00; and
92.9 The Applicant, during the year 2017, conducted herself in an improper and unacceptable manner in that she offered Ms Lian Chetty a position of Remedial Educator without the approval of the School Governing Body.

Substantive fairness

93. I will deal with each allegation in chronological order.

94. Section 37(6) of the South African Schools Act 84 of 1996 (“SASA”), states that the school fund, all proceeds thereof and any other assets of the public school must be used only for –
(a) educational purposes, at or in connection with such school;
(b) educational purposes, at or in connection with another public school, by agreement with such other public school and with the consent of the Head of Department (“HOD”);
(c) the performance of the functions of the governing body (“SGB”); or
(d) another educational purpose agreed between the governing body and the Head of department.

95. Section 16A of the South African Schools Act 84 of 1996 state that the Functions and responsibilities of principal of public school —
(1) (a) The principal of a public school represents the Head of Department in the governing body when acting in an official capacity as contemplated in sections 23 (1) (b) and 24 (1) ( j).
(b)…
(2) The principal must—
(a)…;
(b)…;
(c)…;
(d)…;
(e)…;
( f ) inform the governing body about policy and legislation;
(g)…; and
(h) assist the governing body with the management of the school’s funds, which assistance must include —
(i) the provision of information relating to any conditions imposed or directions issued by the Minister, the Member of the Executive Council or the Head of Department in respect of all financial matters of the school contemplated in Chapter 4;
(ii) the giving of advice to the governing body on the financial implications of decisions relating to the financial matters of the school;
(i) take all reasonable steps to prevent any financial maladministration or mismanagement by any staff member or by the governing body of the school;
( j) be a member of a finance committee or delegation of the governing body in order to manage any matter that has financial implications for the school; and
(k) report any maladministration or mismanagement of financial matters to the governing body of the school and to the Head of Department.

96. Allegation 1: The Applicant clearly contravened section 37(6) of SASA by purchasing the air fryer for herself with school funds. The Applicant does not deny that she did use the School’s debit card to buy the air fryer with school funds. The fact that Maluleke, the driver, suggested it, does not authorise her, as principal, to use school funds irregularly. The SASA does not state that school funds may be used for personal reasons as long as it is paid back later.

97. Allegation 2: I find on a balance of probabilities that the Applicant wilfully mismanaged the school fund when she bought the external hard drives. The evidence shows clearly that the Applicant acted outside the scope of her authority, as the purchase of external hard drives was not budgeted for, and not authorised by the SGB. I accept the evidence of the Respondent’s witness, Raoul Blignaut, that the IT system of the School provided sufficient data for storage purposes, and that there was no need for external hard drives. The Applicant testified that Farrell, the previous chairperson of the SGB was aware of the purchase, and approved it, but the Applicant never disclosed this information, which could easily have vindicated her, to the SGB in a meeting. She also did not call Farrell as a witness, to corroborate her version, without giving reasons why he could not be called. This justifies an adverse inference to be drawn in that regard. It supports the probability that she acted unilaterally and wilfully mismanaged the school fund with the unnecessary transaction.

98. Allegation 3: Maluleke testified that he received an instruction from the Applicant to transport a learner of Bryanston High School. He took the child to his home in Ferndale, about 4/5km away. It was the child of Ms Naicker. The Applicant’s argument that she did not use the School’s vehicle for her own personal use, does not hold water. The probabilities favour the finding that the Applicant did a favour for Ms Naicker, using School assets. The fact that an educator has personal transport challenges in respect of her child in another school, does not warrant the use of the School assets for personal purposes. If that practice is allowed unchecked, it can create a precedent that could snowball out of control, resulting in wasteful expenditure of school funds and assets. The same argument applies in respect of using the School’s vehicle to transport educators to do their private business. The actions of the Applicant were in clear contravention of section 37(6) of SASA.

99. Allegations 4, 5 and 6: I find on a balance of probabilities that the Applicant acted dishonestly in her response to the section 38A payments, which was either not approved, or more that the approved amounts, that was made to her and to other staff members.

100. The Applicant’s duties and responsibilities conferred upon her by section 16A of the SASA are noticeably clear and weighs heavily in this regard. She was expected to guide and advise the SGB correctly, and to notify or alert the GDE when irregularities occurred. I cannot accept that an experienced principal could merely abdicate her responsibilities on the basis that the experienced resistance from the SGB. In the final instance the buck stopped with her. She not only did not disclose the irregularities to the HOD but benefitted from it. Even after receiving section 38A training, she did not act as expected of her in terms of section 16A of SASA.

101. Allegation 7: I cannot find on a balance of probabilities that the Applicant is guilty of this allegation. The crux of the allegation is that the Applicant appointed the four teacher’s assistants and paid them R12 000,00. The evidence of the Respondent shows that the contract was drawn up and signed by Singh, the SGB chairperson. The SGB cannot escape its responsibility and liability in this regard by shifting the blame to the Applicant. They had all the opportunity not to enter into contracts with the four teacher’s assistants if they were not happy with the terms of their employment. They also had the option and right to amend their salaries if it was not approved or in line with budgetary constraints. The de facto position is that the SGB appointed and paid the teacher’s assistants, and not the Applicant.

102. Allegation 8: I find on a balance of probabilities that the Applicant acted in an improper and unacceptable manner when she appointed Asvat to the position of Educational Councillor, why the SGB requited the appointment of an Educational Psychologist. The fact that other candidates were not available for a full-time position, did not authorise the Applicant to unilaterally change the post requirements and appoint Asvat in a position that was not approved by the SGB. If none of the other candidates were indeed not available for a full-time position, it would have been incumbent upon the Applicant to report that to the SGB, and to either get approval to appoint Asvat in the alternative, or to source other available candidates for the post of Educational Psychologist.

103. Allegation 9: As in respect of allegation 7, I cannot find on a balance of probabilities that the Applicant is guilty of this allegation. The crux of the allegation is that the Applicant offered Ms Chetty the position of Remedial Educator without the approval of the SGB. Even if she did offer the position to Ms Chetty, I agree with the Applicant’s argument that nothing turns on such offer. The evidence of the Respondent shows that the contract were drawn up and signed by Farrell, the former SGB chairperson. The SGB cannot escape its responsibility and liability in this regard by shifting the blame to the Applicant. They had all the opportunity not to enter into an employment contract with Ms Chetty if they were not happy with the terms of her employment.

104. I am satisfied that in respect of allegations 1, 2, 3, 4, 5, 6, and 8 the Respondent proved on a balance of probabilities that the Applicant did commit the misconduct she was found guilty of, i.e. contravention of section 18(1)(a), (b), (ee) and (q) of the EEA respectively, and that the Applicant contravened a rule or standard regulating conduct in, or of relevance to, the workplace.

105. The Applicant did not dispute knowledge of the rules. It is also so that employees are expected to know that certain behaviour is simply unacceptable and cannot in such instance rely on the argument that she was not aware of the rule or policy. Dishonesty, as in this case, is an example of such behaviour.

106. The Applicant did not challenge the consistent application of disciplinary action by the Respondent.

107. In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness. The Code states that one of the requirements of a fair dismissal for misconduct is that the dismissal must be an “appropriate” remedy, in the light of the facts of the case. The courts have accepted that the ultimate justification for employers’ power to impose discipline flows from their right to manage their business effectively. (See De Beers Consolidated Mines Ltd v CCMA & Others [2000] 21 ILJ 1051 (LAC) at 1058F-G). The Applicant’s misconduct must be seen against the background that she is a senior employee in a position of trust.

108. The misconduct of the Applicant must be seen in a serious light. The mismanagement of school funds affects the capacity of the Department of Education to exercise its mandate efficiently, which would not be in the interest of the learners of the school. Section 28(2) of the Constitution of the Republic of South Africa 108 of 1996 provides that a child’s best interests are of paramount importance in every matter concerning the child. This is a factor that I keep in mind as surely it was not in the best interest of the learners of the school that school funds are mismanaged in such a serious manner.

109. All the offences relate to a callous disregard for established best practice policies and procedures. This is unacceptable behaviour by someone in control of a school, and the custodian of public funds of the school, with the responsibility of overseeing proper management.

110. At common law, dishonesty by employees is regarded as the gravest form of breach of the duty of fidelity, justifying instant dismissal. It is well established that the relationship between employer and employee is in essence one of trust and confidence and that conduct clearly inconsistent therewith entitles the “innocent” party to cancel the agreement. The courts have approved the clearly established principle that dishonesty undermines the trust upon which the employment relationship is built and justifies dismissal – see Kalik v Truworths (Gateway) & Others (2007) 28 ILJ 2769 (LC); Hulett Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry & Others (2008) 29 ILJ 1180 (LC).

111. The conduct of the Applicant has an element of dishonesty. The Labour Appeal Court had this to say about the effect of dishonesty by an employee on the employment relationship in Anglo American Farms t/a Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC): “This trust which the employer places in the employee are basic to and forms the substratum of the relationship between them. A breach of this duty goes to the root of the contract of employment and of the relationship between employer and employee.”. Dismissal is generally justified in all cases of serious dishonesty, not merely those in which employees enrich themselves materially at the expense of their employer – John Grogan, Workplace Law, 10th Edition. Dismissal is an appropriate sanction when the offence involves dishonesty, even in the case of a first-time offender. See Pillay v C G Smith Sugar Ltd (1985) 6 ILJ 530 (IC) at 538 G.

112. An employer generally would have two reasons for wanting to get rid of a dishonest employee – one is that the employee can no longer be trusted, and the other is the need to send a signal to other employees that dishonesty will not be tolerated. The latter relates to the deterrence theory of punishment. Dishonesty to such an extent impacts on the trust relationship that dismissal normally is, or should be, a sensible operational response to risk management in the particular enterprise. The Labour Court has indicated that to be the legal position – see Miyambo v CCMA & others (2010) 31 ILJ 2031 (LAC). Mitigating factors such as a clean record and long service are unlikely to restore the trust relationship especially if the employee shows no remorse and consistently deny wrongdoing as in casu.

113. I had due regard to the principles set out in the case of Edcon Ltd v Pillemer NO & others [2010] 1 BLLR 1 (SCA) which underlines the principle that the employer has the burden of proof to show that the trust relationship has broken down irretrievably. The evidence shows that the trust has been broken down irretrievably and leaves no option for the application of progressive discipline. The fact that the Applicant still attempt to justify her actions and see no wrong in using school funds to buy personal items, or use school assets for personal benefit, justifies the loss of trust argued by the Respondent. It is disturbing that the Applicant can think and argue that because she intended to pay back the money, it is acceptable conduct for a principal. The fact that she cannot apprehend the unacceptableness of her conduct, means that she cannot be trusted not to do so again, which leaves no room for progressive discipline.

114. The Applicant’s years of service cannot outweigh the gravity and seriousness of her offences. The Labour Appeal Court has held that long service cannot in itself provide a basis for rendering a dismissal unfair. See De Beers Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC).

115. I therefore find that the sanction of dismissal is fair and appropriate in the circumstances.

116. I accordingly find the Applicant’s dismissal substantively fair.

Procedural fairness

117. The Applicant did not dispute the procedural fairness of her dismissal and I accordingly find the Applicant’s dismissal procedurally fair.

Relief

118. The Applicant is not entitled to relief.

Award

119. The application is dismissed.

SIGNED AT KEMPTON PARK ON THIS 13th DAY OF MAY 2021.

Coen Havenga