ARBITRATION
AWARD

Case Number: ELRC347-24/25EC

In the matter between

SADTU obo Malusi Goodman Nyengane Applicant

and

Eastern Cape Department of Education Respondent

Appearances: For the applicant: Mr Siyabonga Gashi

Arbitrator: Mxolisi Alex Nozigqwaba
Heard: 11 September 2024; 25 October 2024; 16 January 2025
Delivered: 18 February 2025
Summary: Labour Relations Act 66 of 1995, as amended, sections 136(1), 185(a), 186(1)(a),
191(5)(a)(i).

DETAILS OF HEARING AND REPRESENTATION

1. This arbitration was heard on 11 September 2024; 25 October 2024 and 16 January 2025. Mr Malusi Nyengane (applicant) was in attendance in all sessions and was represented by a SADTU official, Mr Siyabonga Gashi. The Eastern Cape Department of Education (respondent) was represented by its labour relations manager, Mr Sandile Nyalambisa.
2. The dispute had been referred to the ELRC in terms of sections 136(1) and 191(5)(a)(i) of the Labour Relations Act 66 of 1995, as amended (LRA), and concerns dismissal related to misconduct which the applicant regards as unfair.
3. The proceedings were digitally recorded.
4. On the last day of the arbitration hearing parties agreed to submit written closing arguments and they both submitted in line with the agreed submission time frame, which was 16 January 2025. I have taken these heads of argument into consideration in penning this award.
   ISSUE TO BE DECIDED
5. I am required to determine whether the applicant’s dismissal was substantively and procedurally fair. Should I find that the dismissal was unfair I will order an appropriate relief.
   BACKGROUND TO THE ISSUE
6. The applicant has been in the applicant’s employ as a post level 1 educator and was placed Pakamani Senior Secondary School (SSS). At the time of his dismissal he was earning a gross monthly salary of R38 091.15.
7. He was dismissed on 12 July 2024. He was dismissed after he was found guilty of the following four charges:
   ‘Charge 1: It is alleged that you committed an act of misconduct as contemplated in section 17(1)(a) of the Employment of Educators Act 76 of 1998 as amended (EEA) which inter alia read as follows: ‘theft, bribery, fraud or an act of corruption in regard to examinations or promotional reports.” It is alleged that you committed misconduct on or about October 2022, in that you were discovered to have fabricated marks for more than 50% of grade 12 learners and irrationality and randomly inflated marks for the controlled test and the Department of Basic Education task known as the Common Task assessment;
   Charge 2: It is alleged that you committed an act of misconduct as contemplated in section 18(1)(a) of EEA which inter alia read as follows: “fails to comply with or contravenes this Act or any other statute, regulation or legal obligation relating to education and the employment relationship.” It is alleged that you committed misconduct on or about October 2022, in that you failed and did not comply with the Life Orientation SBA; implementation prescripts as outlined in the CAPS Policy;
   Charge 3: It is alleged that you committed an act of misconduct as contemplated in section 18(1)(ee) of EEA which inter alia read as follows: “commits and act of dishonesty in that you inflated learners marks and that transpired as learners passed or learners were passing the subject Life Orientation;
   Charge 4: It is alleged that you committed an act of misconduct as contemplated in section 18(1)(f) of EEA which inter alia read as follows: unjustifiably prejudiced the administration, discipline or efficiency of the Department of Education, an office of the State or School, further Education and Training institution or adult learning centre in that , the school and the Department could not process the marks of Life Orientation with others during marking for grade 12 for 2022. Pakamani SSS grade 12 learners were not given their results on the 20th January 2023 when all the other learners got their results. Seven learners also had to re-write the controlled test. The school became notorious country wide from your conduct.’ (pages 16- 17 of applicant’s bundle B)
8. The applicant is challenging the substantive and procedural fairness of his dismissal and is seeking re-instatement. On procedure his challenge is that his disciplinary hearing took unreasonably long period of time to be initiated and to be finalized and that prejudiced the applicant. He was charged on 08 November 2024 for an incident which allegedly found to have taken place in January 2023. His hearing, together with his appeal to the respondent’s MEC was finalized on 12 July 2024. On substantive fairness challenge he is saying that there was inconsistent application of disciplinary sanction as there are educators who had been found guilty of the same or similar offense but were given sanctions less of dismissal. He is seeking re-instatement.
   SURVEY OF THE EVIDENCE AND ARGUMENTS
9. It is common cause that the applicant pleaded guilty to all four charges, was found guilty of all of them, and a sanction of dismissal was imposed.
10. The respondent’s case is that after the allegations of fabrication of learners’ Life Orientation marks, against the applicant, cropped up an investigation was conducted. At the completion of the recommendations were made to have the applicant subjected to disciplinary processes. It took time for the respondent to serve the applicant with disciplinary charges and notice to attend his hearing as he had been involved in an accident and was sick for a long time. Upon his return to work he was accordingly charged of the four charges (as mentioned in paragraph 7 above), and the charges pertains to his dishonest behaviour of wrongfully inflating Life Orientation learners’ marks, and failure to comply with Life Orientation SBA implementation prescripts of CAPT Policy. His conduct resulted in Grade 12 Life Orientation learners getting their results late and seven others having to rewrite a controlled test. The respondent regards his conduct as having been serious enough to warrant dismissal. Even if he was not charged in terms of section 17 of EEA (as charged in charge 1) the respondent would still have opted for a sanction of dismissal, as what he did amounted to dishonesty. On inconsistent application of sanction challenge the respondent’s case is that circumstances in other cases were different from the applicant’s circumstances.
11. The applicant’s case is that the applicant pleaded guilty to the charges as a show of remorse to the offense he was disciplined for. He has been in the respondent’s employ for a long time with a clean disciplinary record. The applicant’s gripe is firstly on the delay in charging the applicant and completing his disciplinary processes. The applicant’s misconduct is saif to have happened around October, November or December 2022 period when 2022 final matric examinations and assessments were held. The offense in question was discovered in January 2023 but the applicant only got to be served with disciplinary charges on 08 November 2023, and his hearing was finalized in July 2024 when a decision to dismiss him was made. The delay in charging him and finalizing his disciplinary processes was excessive. The Constitutional Court in Stokwe v MEC Department of Education Eastern Cape mentioned its displeasure in excessive delay in holding and concluding disciplinary processes against employees. The applicant also takes issue with the fact that after having pleaded guilty to all charges the respondent imposed a sanction of dismissal even though it had not done so to other educators who were found guilty of having committed similar misconduct. He is seeking a reinstatement with payment of lost salary from the date of dismissal to the date of reinstatement.
    RESPONDENT’S CASE
    Ms Thandeka Mdoda
12. Ms Thandeka Mdoda (respondent’s Amathole East District labour relations officer) testified that labour relation section received a report dated 23 January 2023 from CES: Curriculum Services (pages 23- 25 of respondent’s bundle A). In the report it was mentioned, amongst others, that Life Orientation Grate 12 2022 teacher portfolio lacked baic question papers and memoranda for four quarters tasks, learners’ marks were tempered with and inflated in SASAMS, all learners were awarded marks even though no evidence of scripts were submitted. Life Orientation educators (the applicant and Ms Dyosini) and their departmental head, Mr Sipuka, admitted that they inflated and awarded fraudulent marks all learners. The issuing of the school’s Grade 12 results got to be delayed because of the said fraudulent capturing of inflated marks. Seven learners had to rewrite the Controlled Test.
13. Labour relations section got involved by conducting its investigation on the issue in 2023 and its investigation report was penned on 19 June 2023 (pages 19 to 22 of A). Mr Sipuka resigned in May 2023, when the investigation was still conducted, and his resignation was dealt with in terms of section 14(1)(d) of the EEA. He was deemed to be dismissed on 21 July 2023. as he resigned while investigative processes towards his disciplinary hearings were held (page 43 of A). The charges for misconduct (as appearing in paragraph 7 above) were drawn and served to the applicant and Ms Dyosini. After having been served with charges and summed to disciplinary proceedings Ms Dyosi also submitted a resignation letter. Her resignation was also dealt with in terms of section 14(1)(d) of EEA and was deemed to be dismissed on 05 July 2024 (page 44 of A).
14. There was delay in commencing the applicant’s disciplinary hearing as the applicant had been sick from the time of conducting investigation by labour relations. He got to be hospitalised at some point. His hearing was then rescheduled to 14 and 15 November 2023. The hearing finally got under way and the applicant pleaded guilty to the four charges and was accordingly found guilty and dismissed (in terms of disciplinary findings report in page 38 of A). He appealed to the MEC of the Department of Education, Eastern Cape, and his appeal was dismissed, and the decision was communicated to him on 12 July 2024, which got to be his date of dismissal.
15. The witness was then referred to the case of Ms S. Mali under Nelson Mandela District Office (under Department of Education Eastern Cape), alleged to be similar to the applicant’s case (pages 28 to 32 of B). She was charged in terms of sections 17 and 18 of the EEA, for causing matric examination candidates to copy answers, and providing answers to various questions to the candidates in the November- December 2021 matric examinations, and thus compromised the integrity and credibility of the examinations. The witness did not seem to know much about the circumstances and the basis of the decision to give a sanction short of dismissal (three months suspension without pay) after she had been found guilty as charged. She conceded that the offense by Ms Mali was similar to that of the applicant.
16. The witness was also asked about matric examination copying incidents of Mdeni SSS and Ncedisizwe SSS. She conceded that in both incidents educators involved were given sanctions short of dismissal (one was issued with suspension without pay and the other was demoted). The witness further mentioned that she was not part of the processes which led to the issuing of the said disciplinary sanctions and therefore has no knowledge of what informed the decision to issue sanctions short of dismissal.
17. On the issue of the period of conducting and finalising the applicant’s hearing Ms Mdoda confirmed that the applicant’s misconduct happened in October 2024 and was discovered as per the report by the CES in January 2023. The applicant’s disciplinary proceedings commenced after investigation was completed by labour relations section. His disciplinary proceeding ran to completion some 21 months after the act of misconduct. This was contrary to standard operating procedure of having disciplinary processes completed within 90 days from the date of the act in question. The delay, however (so her evidence continued) could not be attributed to the employer alone. The applicant had been sick for a long time and had even been hospitalised. There was even an instance where the applicant’s union representative sought postponement for the session of 14 and 15 November 2023 (pages 30- 31 of A).
    Ms Dumazile Majavu
18. Ms Dumazile Majavu (Pakamani SSS principal) testified that before being appointed as the school principal in 2021 she started out on acting capacity from 2019 until his appointment. She recalled the incident which led to the applicant’s charging and dismissal.
19. When investigations were done in 2023 the applicant would in most occasions be not on duty due to ill health. She was referred to several sick leave forms he had filled and submitted for days in January, February, July, August and September 2023. There was also an instance where SADTU union representative sought postponement for 14 and 15 November 2023 session of the applicant’s hearing.
20. She further testified that there were 200 Life Orientation learners involved in the incident. There was devastation by teachers and learners as there were learners who had to rewrite their Life Orientation exams.
    APPLICANT’S CASE
    Applicant
21. The applicant testified that he started working for the respondent as post level 1 educator in June 1995 at Zweliwelile SSS in Idutywa. He then joined Phakamani SSS on 14 June 2006.
22. The said inflation of marks, which he does not deny, happened in November 2022 during Matric examination. The investigation outcome on the matter was issued on 19 June 2023. He was then served with charges and notice to attend his hearing on 08 November 2023 for a hearing which was to be held on 14 and 15 November 2023. His case was held and concluded way more than the requisite 90 days from the date of the act to the date of finalization. He regards the delay as having been unwarranted and unfair.
23. The applicant further testified that he felt that he was treated unfairly as there are two educators of schools in Amathole District (Ncedisizwe SSS and Mdeni SSS) who had committed offences similar to his but were given sanctions short of dismissal (one given suspension without pay and the other demoted). He also got to learn about a certain Ms Mali from Nelson Mandela Bay District who was also charged for examination related misconduct similar to his but walked away with a sanction short of dismissal (suspension without pay). He felt hard done when he was issued with dismissal sanction while his colleagues from Amathole District and one from Nelson Mandela Bay got sanctions short of dismissal. He is seeking re-instatement.
24. When asked as to whether the incident Ms Mali was disciplined for was similar to his answer was that the acts were different, but both involved wrongful enabling of learners to score higher marks. His learners had written their assessment, but what he did was to allocate marks by grouping them, without having actually assessed all their work. He was also referred to the instance where his union had sought postponement.
    Arguments
25. For the respondent it was argued that the charge sheet relied on pertaining to the charges against Mali (pages 28 to 31 of B) was not signed and its authenticity was not guaranteed. The said evidence should not have been allowed. What is in the finding and sanction (page 32 was signed by a Director on behalf of the respondent’s Head of Department. On the issue of the delay in finalizing the matter within the 90 days, the respondent’s submission is that the investigation got to be delayed because of the applicant’s ill-health. The hearing had at some instance in November been postponed at the instance of the applicant’s union representative. It thus cannot be said that the delay in finally completing the matter internally can be attributed to the respondent alone. The procedural challenge therefore stands to fail.
26. On substantive fairness challenge the respondent argues that the two teachers who were involved in the exam scam with the applicant got to be deemed dismissed in terms of section 14(1)(d) of EEA after they resigned while their disciplinary processes were still under way. He thus cannot be said to have been treated harshly. The reasoning behind not dismissing educators from Mdeni and Ncedisizwe is that each case is dealt with and finalised in accordance to its merits. The applicant had a duty to subpoena the officials who dealt with the cases on Mdeni and Ncedisizwe. The charges relating to dishonest behaviour by the applicant were very serious and warranted dismissal. His conduct put the Department into disrepute. In the circumstances the applicant’s dismissal was substantively fair.
27. For the applicant it was argued that the finalization of the matter internally was unduly and unfairly delayed. The incident in question was discovered in October 2022. The investigation got to be concluded in June 2023, and the disciplinary charges and notice to attend DC hearing were served on 8th November 2023. The applicant got dismissed in July 2024. It took about 8 months to finalize the matter internally.
28. On substantive fairness challenge the fact that the applicant had long service with clean disciplinary record was not considered to his advantage by the hearing chairperson. No evidence was led to prove that the employment relationship was irretrievably broken down. There has been no advanced justification as to why the applicant was treated differently to Ms Mali and the two educators from Mdeni and Ncedisizwe who were given sanctions short of dismissal. The applicant’s dismissal was therefore substantively unfair. He is seeking retrospective re-instatement.
    ANALYSIS OF EVIDENCE AND ARGUMENTS
29. On the issue of procedure, which has to do with delay in finalizing the hearing, I have considered the fact that when the investigation was done from January 2023 it has been proven that the been on sick leave in some days in January and February 2023. The respondent’s evidence that there were instances when he could not be reached when labour relations officials from the District Office visited the school are quite probable. There is an instance in November 2023 when the hearing got to be postponed at the applicant’s union representative’s instance. It thus has not been proven that the respondent was solely to be blamed for the delay in finalizing the completion of the internal disciplinary proceedings.
30. On substantive fairness challenge I have considered the fact that the applicant pleaded guilty to the four charges, of which one was formulated in terms of section 17 of the EEA as a dismissable offense. The fact that he was accordingly found guilty of the offenses was never under challenge. The applicant’s gripe with his dismissal stems from non-consideration of his long clean record. He also takes issue with the fact that there are educators who had committed offenses of dishonesty pertaining to wrongfully assisting grade 12 learners for their or towards their Matric examinations. He argues that he was treated unfairly when his counter-parts having committed offenses similar to his were handed sanctions short of dismissal, while he got to be dismissed.
31. In Sidumo v Rustenburg Platinum Mines the Constitutional Court held that in determining whether a dismissal was fair or not, a commissioner should not approach the matter on the basis of what decision they would have made had they been the employer. The decision to dismiss belongs to the employer, while the determination of its fairness belongs to the Commission (the Bargaining Council in this instance). The Court went further to mention that the commissioner must, amongst others, consider the importance of the rule that has been breached, the reason for imposing dismissal sanction, and the basis of the employee’s challenge. Other factors for consideration include the harm caused by the employee’s conduct, whether additional training may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long service record. The commissioner is however not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair, after having considered all relevant facts.
32. In the case at hand the applicant has pleaded guilty to all four charges proffered against him, which amongst them is charge 1 formulated in terms of section 17(1)(a) of the EEA. An educator found guilty of an offense under section 17(1), as mentioned in footnote 1, must be dismissed. What this means is that once one is found guilty of an offense under section 17(1) dismissal sanction must be imposed. Section 17(1) of this piece of legislation gives no latitude or discretion to the commissioner when it has been proven that the employee is guilty.
33. The intention of the legislature, which is to be given effect to, is that: should an educator be found guilty of any offense in section 17(1) of the EEA he or she must be dismissed. The fact that the respondent has previously breached this legislative provision and did not dismiss an educator before grants no latitude to the commissioner to consider inconsistent application of this legislative provision. The fact that the employee had clean disciplinary record with long service is also of no consideration. This line of thinking finds its legitimacy from Sidumo’s decision that the decision to dismiss belongs to the employer, and the determination of fairness rests with the commissioner. The employer, through an Act of Parliament, made the sanction of dismissal mandatory when an employee is found guilty of section 17(1) misconduct. The employer had taken a decision to make it mandatory to dismiss educators found guilty of section 17(1), and its reasoning is that such offenses (fabrication of Grade 12 learners’ marks in the case at hand) if proven are serious enough to make dismissal mandatory. The decision to dismiss in the circumstances is found to be fair, as a section 17(1) offense has been proven to have been proven, and it is an offense that is known to call for a mandatory sanction of dismissal.
    AWARD
34. I therefore make the following award:
    34.1. The applicant’s dismissal was substantively and procedurally fair.
    34.2. The applicant is not entitled to any relief.

Signature:

Commissioner: Mxolisi Alex Nozigqwaba
Sector: ELRC
(ELRC) Arbitrator