In the matter between:

URSULA NCOBO

Applicant

and

DEPARTMENT OF EDUCATION WESTERN CAPE Respondent

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

The arbitration took place at the offices of the Department of Education Western Cape on 21 April, 31 May, 2 June and 26 July 2011.The applicant, Ms Ursula Nomsa Ncobo (Ncobo), was represented by M. Adams, a practising attorney, the Department of Education WC (the respondent), was represented by Ms. B. Ndlondlo its labour relations officer.

THE ISSUE IN DISPUTE

Was the dismissal of Ncobo fair?

THE BACKGROUND TO THE DISPUTE

Ncobo was in the employ of the respondent from 10 January 1990 until she was dismissed on 7 February 2011. At the time of her dismissal Ncobo was the principal at Bardale PrimarySchool (the school) and earned an income of R22,681.50 per month.
SUMMARY OF EVIDENCE AND ARGUMENT

The parties handed in a common bundle of documents. The respondent handed in additional documents. No objections were recorded regarding the documents.

It was common cause that Ncobo had been afforded a fair procedure when she was dismissed.

Andile Mangali (Mangali), Ntombiyosindiso Elizabeth Mangcoto (Mangcoto), Irene Ntombomzi Mkefe (Mkefe) all of whom are educators at the school and Malusi Mapumulo (Mapumulo), the disciplinary chairperson testified under oath for the respondent.

Ncobo testified personally.Thambinkosi Mbulawa (Mbulawa), Ayanda Tontsi – Pama (Tontsi–Pama), Zuziwe Williams (Williams) who are also educators at the school, testified under oath for Ncobo.

It was also common cause thatin this matter Ncobo has been charged with and dismissed on the following charges:

Charge 1
“It is alleged that you are guilty of misconduct in terms of section 18(1) (q) of the Act, of the Employment of Educators Act, No. 76 of 1998 (hereinafter referred to as the Act) in that on or about the 1st of February 2010 whilst on duty at Bardale Primary, you conducted yourself in an improper and unacceptable manner by bringing and drinking liquor at school celebrating your birthday. “
Charge 2
“It is alleged that you are guilty of misconduct in terms of section 18(1)(s) of the Act in that on or about November 2009, you incited other personnel to an unprocedural and unlawful conduct in that you invited educators at Bardale Primary School to drink alcohol that you brought to the school to celebrate your sons ritual (umojiso)”
Charge 6
“It is alleged that you are guilty of misconduct in terms of section 18(1) (dd) of the Act, in that on or about April 2009 until April 2010, you committed an act of common law bribery, namely bribery by demanding and receiving money from Mrs Tom.

THE EVIDENCE FOR THE RESPONDENT:

During the first break on 2 February 2010, at around 10h00 Mangali, Mangcoto and Mkefe had been given cake and softdrinks provided on account of its being Ncobo’s birthday.

That afternoon, before the school had been dismissed, Mangali, Mangcoto and Mkefe had,in the staffroom separately, observed several educators including Ncobo, Mbulawa, Nkentle, Ntontsi-Pama drinking alcoholic drinks such as Savannah, Amarula and Brandy.

In November 2009 Mangali had seen Mbulawa, Mr. Masiza (a non-educator) and Ms. Tom (a non-educator) fetch alcoholic drink from the boot of Ncobo’s car. This was prompted by an announcement by Ncobo that she had something in the boot of her car from her son’s ritual over the weekend, not by an announcement that they are invited to witness to her son’s ritual at her home that Monday evening as alleged by Ncobo. According to Mangali the manner in which Ncobo had phrased it was to mean that there was something in the boot for those who wanted something.

Tom had shown Mangali the traditional beer in a silver bucket which she had fetched from the car of Ncobo.Ncobo also told Tom to take the traditional beer away as it was not the appropriate thing to have at the school.

Mangali had seen some of those present taste and enjoy the unqlomboti but did not see Ncobo drink anything. Mangcoto on the other hand saw Ncobo take the first sip of the traditional beer from the bucket on the insistence of Tom.This Ncobo did in the presence of learners. Thereafter Mangcoto had seen Tom take the bucket to some neighbour’s place and return empty handed.Mangali had not seen Ncobo drink that day.

Although Mangali is a manger he will only perform a disciplinary function in the absence of the school’s principal. This was in accordance with his training in matters of discipline.

Tom had been dismissed for fraud in that she had submitted a fraudulent Matriculation certificate when applying for her job.

Regarding the charge pertaining to bribery Mangcoto had seen Tom put R100 notes into an envelope and hand it to Ncobo. Ncobo had retorted to Mangcoto that she had caught them redhanded. Up until this point Mangcoto had never seen Tom give Ncobo any money. Thereafter Tom had explained to Mangcoto that she was paying Ncobo the money as a bribe which she does every month.

Tom had told Mangcoto that Ncobo had told her she was going to make the post permanent and that Tom should therefore give her money every month.

THE EVIDENCE FOR THE APPLICANT:

Ncobo and the SGB had appointed Tom on a fixed term contract for 6 months in February 2009. She and Tom had worked well together but she had not promised Tom a permanent position and had not asked anything of her. She was satisfied with Tom’s performance and felt she was useful to Tom as she was teaching her a skill.

Tom had given Ncobo money on 2 occasions viz. R1,000.00 on 9 May 2009 as a mother’s day gift to buy a new cellphone and R500 on the occasion of her son’s ritual when numerous other teachers also gave her money.

As Tom had left an envelopecontaining the mother’s day gift of R1000.00 on Ncobo’s desk Mangcoto had not seen Tom give the money to Ncobo.

When Tom had given Ncobo the R1,000.00 Ncobo had called in several teachers to thank Tom for the gift. Tom had in their presence said it was a mother’s day gift and had expressed her thankfulness for being at the school. Tom had said that Ncobo reminds her of her mother who passed away a long time ago and that Ncobo had comforted her and had given her the job.Tom had also expressed her gratefulness for the skills that Ncobo had imparted to her. Mbuwana, one of these teachers whom Ncobo had called in, had said to Tom that she was now recognized in the community now that she is working for the respondent and had no problem with the gift as long as Tom gave it from her heart.

According to Ncobo Tom had not given her any money between April and November 2009when she had given her R500.00 for her son’s ritual together with other teachers who also gave her money for this reason.

The conversion of non educators on contract to permanent positions March 2009. He had signed the document handed in by Ncobo in terms of which the conversion of Tom was approved.

Upon her return from her illness he had informed Ncobo that Tom’s conversion had been approved and that the school should be expecting a letter from the respondent.

Although Ncobo did make an announcement the Monday after her Son’s Umojiso she did not bring any alcohol to school. She had invited the staff to come to her home that evening to witness.

According to Mbulawa,Ntontsi-Pama and Williams Ncobo had not said anything about the Umojiso at that Monday morning briefing.She had also not invited them to drink with her and neither had Mbulawa fetched alcohol from the boot of Ncobo’s car that day. He also denied that he had been drinking at school on the day of Ncobo’s birthday. He was not disciplined for a misconduct in that regard.

According to Williams and Tontsi-Pama Tom had paid for the alcohol. According to Williams Tom had first asked them to contribute towards buying something for Ncobo on account of its being her son’s ritual. When they replied that they did not have money Tom had said that she has the money and had then taken about R400.00 from a black box and had given it to her to pay for the alcohol.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

Regarding the incident pertaining to the Monday after the week-end of the Umojiso in November 2009 and the allegation of the alcohol taken from the boot of Ncobo’s car the description of the alcohol brought to the school on the previous Friday except for thetraditional beer matched that which the respondent’s witnesses testified were taken from the boot. The evidence shows further that Mangali and Mangcoto could have seen Tom removingonly a bucket from the car but Mangaliacquired the knowledge of its contents upon Tom’sshowing it to him and Mangcoto once Tom told her of it.

The respondent’s testimony that Ncobo had told Tom to remove it from the school as it was inappropriateto have it there and then that Tom had taken it off the premises of the school to a neighbour’s place suggests that Ncobo knew it had not to be on the school premises and ordered its removal. The conclusion that I arrive at regarding the Monday after the Umojiso is that it is more probable that Ncobo had brought the brandy, the Savannahand the traditional beer to the school particularly, in the case of the brandy and the Savannah, as it was the same kind of alcohol that she had been given the Friday for the Umojiso but that there had not been any drinking by Ncobo at the school that day.

In this regard it was the testimony of Mangcoto and Mkefe who had seen Ncobo drink the traditional beer that morning against that of Ncobo. Who denied having done so.There was however drinking of the traditional beer by some of the others at the school that day. This was probably as a consequence of its having been provided by Ncobo. Ncobo had clearly instructed Tom to remove it from the premises for its being inappropriate to have it on the school premises. The testimony of Mangcoto that Tom had then taken the bucket to a neighbour’s suggests only that the bucket may have been that of the neighbor.

In this regard the evidence supports the fact that there was the drinking of or at least the tasting of traditional beer as the manner in which it is presented does not allow for its being taken away but rather for its immediate consumption. There was no evidence of the drinking of brandy or Savannah on the Monday after the Umojiso presented at this arbitration.

The evidence therefore suggests that Ncobo had probably brought the bottle of brandy and the Savanna, which probably were in sealed bottles forthose present at the Monday morning briefing to take for themselves and off from the school premises and that she had brought the traditional beer to be “witnessed” as proof of the Umojiso having taken place through seeing it or tasting it at the school. Regarding the traditional beer the evidence suggests that it is probable that the bucket belonged to the neighbour to whom it had been taken by Tom after the the “witness” had taken place.
There is sufficient evidence placed before this arbitration to conclude that Ncobo had on the Monday after the Umojiso brought alcohol onto the school premises and for the purpose of the staff partaking thereof and that the staff had partaken thereof.

Furthermore most of the version ofNcobo’s witnesses were not put to the respondent’s witnesses for their response thereto e.g. it was not put to Mangcoto and Mkefe that they have something against Ncobo and therefore told lies about her in their testimony. This version was also uncorroborated.This pertains even to the alleged insubordinate behavior of Mangcoto whom Ncobo testified she was going to lay charges against in the third term but before which she was “thrown out”.

Even the testimony of Mbulawa that Mangali had told him that Ncobo was on leave was not put to Mangali. Notwithstanding this it is hard to believe that Mbulawa could have been under the impression that Ncobo was still on leave by the time his contract terminated at the school in December 2010, more than a term after she had left the school.

The most of the testimony of Mbulawa revealed him to be lacking in credibility which impression was encouraged by his evasiveness in answering simple questions even after it had been clarified to him several times.This pertained especially to his certainty of his being in his classroom between 14h30 and 15h10 on Ncobo’s birthday.

Furthermore much of the version of Ncobo that was put to the respondent’s witnesses in cross examination was later contradicted by the applicant’s own witnesses’ testimony e.g.the version that Ncobo had invited the educators to her home the Monday evening to “witness” the Umojiso and on the other hand the testimony that there was not any announcement made by Ncobo regarding the ritual at the Monday morning briefing after the Umojiso.

Then there was the version put in cross examination to the respondent’s witnesses that the photograph at page 29 of the bundle of documents shows those persons who had collected money to purchase the alcohol as a gift for Ncobo and on the other hand the testimony of those witnesses of Ncobo that they had not contributed thereto but that it was Tom who had provided the money.

Furthermore the conclusion that one must then arrive at in terms of what Tom had given Ncobo in relation to the Umojiso is that Tom had given Ncobo gifts and money at least in an amount of R900.00 being the R500.00 in cash and the approximate cost of the alcohol in the amount of R400.00.

While it was argued by the applicant party that the versions of the two parties are mutually destructive and irreconcilable the nature of the testimony suggests that I must conclude that someone is likely to have beenuntruthful e.g.Mangali’s, Mangcoto’s and Mkefe’s saying that alcohol was consumed in the staffroom on the afternoon of Ncobo’s birthday and the witnesses of the applicant saying that there was no drinking of alcohol.

I am of the view that the Applicant’s witnesses are more likely to be unreliable and untruthful as they had been implicated in thedrinking of alcohol at the school which would constitute a misconduct on their part.

This is especially the case in the light of the undisputed testimony of the respondent’s witness that the staff had attended a training session in which it had been explained how serious a misconduct the bringing of and consumption of alcohol on school premises was. .

In fact all of the testimony of Ncobo’s witnesses regarding the allegation of their drinking alcohol with Ncobo in the afternoon of her birthday was simply a bare denial of the drinking, with each of them saying merely that they were in their respective classrooms and without this being corroborated. As argued by the respondent in particular with reference to Williams they would have been unable to comment on whether or not there had been drinking that afternoon in the staffroom if, in accordance with their testimony, they were not there that afternoon. The testimony of the respondent’s witnesses on the other hand in respect of the drinking in the staffroom that afternoon was by and large corroboratory of one another. The slight discrepancies in their testimony as to who was in the staffroom can be attributed to the fact that they had not all been in the staffroom at the same time. Their testimony was however accurate in so far as the kind of alcohol that was consumed is concerned.

There is also no reason before me why the respondent’s witnesses should wish to implicate all of theseother educators in the drinking of alcohol at the school on Ncobo’s birthday or on the Monday after the Umojiso.

In respect of even the reasons given by Ncobo for Mancoto, Mkefe and Mangali wanting to harm her by testifying as they did, was not put to any of them. There was also no corroboratory evidence presented in such instance.

The fact that Mangali had raised the matter of Ncobo’s drinking and bringing alcohol to the school only in August 2010 furthermore belies the contention of a conspiracy to harm Ncoboo. Had this been the attitude of those teachers they would have reported these things earlier and not waited until Ncobo had referred a dispute against Mangali at the district office.

The version of Ncobo herself that Tom was part of the conspiracy against her is puzzling at best as there is no reason placed before this arbitration by Ncobo as to why Tom would want to harm her. One can only conclude that there is some malicious reason for this alleged attitude of Tomto harm that Ncobo was aware of. The only probable reason in the evidence before me is that of money that Tom was having to give Ncobo for having given her the job.

This serves merely to increase the belief that Tom had given or was giving Ncobo a great deal of money. In respect of the Umojiso Tom had given Ncobo an amount of money far in excess of what the educators at the school had given her. Notwithstanding the reasons therefore as testified to by Ncobo I fail to understand why Ncobo could not and did not see that it was a circumstance that ought not to have been encouraged by her, especially given the fact that Tom probably earns far less money than those educators. I am of the view that she indeed did encourage it by her acceptance of the money and gifts that Tom had given her. This ought have been apparent to Ncobo even at the meeting she called for some of the educators to thank Tom for the mother’s day gift of R1000.00 to buy a cellphone as hers was malfunctioning. Her testimony of Tom’s labelling the envelopes that she had given her “mother’s day gift” or “for son’s ritual” within the context of Tom’s expressing deep gratitude for the job and the other educators reassuring her that she was now a member of the community as she was working for the respondent ought to have made Ncobo realise that Tom’s giving of the money was related to the fact that she had the job.

I find it hard to believe that Ncobo could have been so naïve to think that Tom was not currying favour with her regarding the job by giving her money and within the context of what she had told Tomregarding the position and the possibility of it becoming permanent.

Tom had also told Mangcoto that she had come upon her paying Ncobo a bribe in terms of an arrangement between her and Ncobo on account of Ncobo’s having given her the job. This was after Mangcoto had come upon Tom putting R100.00 notes into an envelope in her office and handing it to Ncobo. Ncobo had on that occasion said to Mangcoto that she had caught them red-handed, which Mangcoto thought was a joke.

In the light of this attitude of Tom,of which Ncobo was aware, the evidence of what the other witnesses of the respondent had said regarding what Tom had told them becomes relevant. In this regard the testimony of Mangcoto regarding what Tom had told her about what Ncobo had said viz. that Ncobo had promised her a permanent job provided she did something for her i.e. pay her something every month, has been reduced or nullified in its evidentiary value for its clearly being hearsay evidence. In this regard Ncobo had also testified at the arbitration and had denied saying that to Tom.

Many more versions were not put to the respondent’s witnesses e.g. Mangali and his powers regarding the conversion of Tom from a contract teacher to one of permanent status. The letter which Ncobo introduced into evidence only once she testified was clearly not put to Mangali for comment. For that reason the weight of such evidence is considerably reduced. Even the reasons given by Ncobo for the late introduction of the letter is not very plausible viz. that she had forgotten about it but that when she had gone home she had thought about what was happening and then gathered information. I would have thought that Ncobo would have thought about her case at least since she had referred the dispute to the Education Labour Relations Council and had gathered her information since then at least.

The testimony of Ncobo was in any event that she was not available to deal with the permanent appointment of Tom as she was off sick at the time. It was therefore in fact critical that Ncobo’s version in this regard be put to Mangali in order for him to elaborate on the circumstances surrounding Tom’s appointment into a permanent position. The failure to do so would therefore negate Ncobo’s version altogether.

Further in this regard Ncobo’s explanation of her handing in the letter only after Mangali’s testimonyviz. that she found it during the proceedings only because she had then decided to look for it, leads me to conclude that it is a fabrication on her part as she probably did not want Mangali to comment thereon.

In fact much of the testimony of Ncobo and her witnesses was most likely fabricated and in some instances purely to shift the blame for many things onto Tom, whom they knew would not be testifying at these proceedings.

All in all however, Tom was a witness more critical to the case of the respondent and in her absence from these proceedings as a witness for the respondent it tilts the probabilities in favour of Ncobo’s not having participated knowingly in the offence of bribery.

Having considered all the evidence and argument presented at this arbitration I find that in respect of charges 1 and 2 Ncobo had been properly found to have transgressed as alleged.

On a balance of probabilities Ncobo had not participated in the common law offence of bribery as expressed in charge 6.

The evidence shows too that Ncobo had been afforded a fair procedure in her dismissal.

I therefore find that the dismissal of Ncobo was fair both procedurally and substantively for reason of her having been involved in activity as set out in charges 1 and 2 above..

This is so particularly in the light of the training in progressive discipline that the staff at the school including Ncobo herself had received and particularly in relation to the attitude of the respondent towards alcohol on a school’s premises.

The dismissal is also justified in the light of the government’s declaration of schools as an alcohol free zone.

Further justifying the dismissal of Ncobo is the fact that she is the head of the school and as such should be setting the appropriate example to her staff by discouraging the use of alcohol on or the bringing of alcohol onto the school premises.

The aforesaid justification of the dismissal of Ncobo entitles the respondent to so dismiss her in accordance with the provisions of S18 (3)(i) of the Act.

AWARD

This application for relief in terms of the provisions of the Labour Relations Act 66 of 1995 as amended is dismissed.

PANELIST: L. MARTIN

19 AUGUST 2011