ARBITRATION
BETWEEN
SALIPSWU OBO SEBAPALO M O “the Applicant”
and
DEPARTMENT OF EDUCATION – KWAZULU NATAL “the Respondent”

ARBITRATION AWARD

Case Number: ELRC466-20/21KZN

Last date of arbitration: 16 September 2022
Date of award: 23 October 2022

NOZIPHO B KHUMALO
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) The matter was set-down for arbitration in terms of Section 191(5) (1) of the Labour Relations Act (LRA) virtually via the Zoom platform, on the 18 August 2022, 15 and 16 September 2022. Mr Sibusiso Madondo a union official of SALIPSWU represented the Applicant, Mr Mohlefi Sebapalo whilst Mr Bheki Mkhanyawo appeared for the Respondent, Department of Education: KwaZulu Natal.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

2) The Applicant was charged with misconduct in that firstly, he contravened s17(1)(a) of the Employment of Educators Act of 1998 by defrauding marks of learners while scripts were not marked. Secondly, he contravened s179(1)(i) by failing to submit geography scripts after an instruction to do so was issued. Thirdly, he contravened s18(1)(j) by absenting himself without advising his supervisor.

3) The disciplinary hearing took place on 22 August 2019 where the Applicant pleaded guilty to all the charges and he was dismissed. Two (2) appeals were forwarded on behalf of the Applicant. Dismissal was upheld on both the appeals.

4) The Applicant lodged a dispute with the ELRC for unfair dismissal.

5) The Applicant is seeking reinstatement.

6) The Applicant submitted bundles “A” and “D” whilst the Respondent submitted bundle “B” and “C

7) I have to decide whether the Applicant’s dismissal was fair or not. Based on the finding, I must decide on the appropriate relief, if any is applicable.

SUMMARY OF EVIDENCE AND ARGUMENTS

8) The material facts of this case are common cause as summarized below. They were stated and confirmed in the evidence of both parties, Petros Boy Vilakazi “Vilakazi” and Nokuthula Samukelisiwe Nxumalo “Nxumalo” of the Respondent and Ditlhari Adelaide Sebapalo “Sebapalo”, Zolile Polite Molemela “Molemela” and the Applicant.
9) The Applicant was employed by the Respondent as an educator and a head of department. He submitted learner marks for geography but did not submit the learner scripts when he was requested to.

10) The Applicant was absent from work since 28 August 2018 to December 2018. He did not report his absence to his supervisor.

The Respondent’s case

11) The Respondent’s evidence is summarized as follows. On 16 August 2018 whilst the Applicant was on leave, members of the RCL complained to Vilakazi about the geography and English term 2 marks which were not satisfactory. Term two (2) English marks were the same as that of term one (1). They had requested their learner scripts from the Applicant but he did not issue them and they therefore referred the matter to Vilakazi. On 27 August when the Applicant returned from his leave, Vilakazi called him and informed him of the complaint against him. Vilakazi also requested that he submits his teaching file, management file and all Grade 11 learner scripts for term one (1) and (2) for re-moderation. The Applicant submitted the files but not the learner scripts. The Applicant informed Vilakazi that the learner scripts were at his cottage and he was ordered to go and fetch the learner scripts and submit immediately. The time was 8 o’clock in the morning. At half past eight, the Applicant called Vilakazi and told him that he had left the key to his cottage at his home in Matatiela. He said that he will go to Matatiela to fetch the key.

12) At 16:00pm, Vilakazi called the Applicant to find out where he was because he had not returned with the scripts. The Applicant told Vilakazi that he had a puncher on his way to Matatiela but he will be at school the next morning, 28 August 2018. That was the last time that Vilakazi ever spoke with the Applicant as he never returned to work. Vilakazi called him on his cellular phone and even sent text whatsApp messages but there was no answer and eventually his cellphone was off. Vilakazi requested Grade 12 teachers who were teaching the same subjects as the Applicant to assist the Grade 11 learners in preparation for the final examinations. On 7 January 2019 when the schools reopened, the Applicant returned to work. He had been absent for a period of 72 days as recorded in “A”4-5.

13) This was not the first time that the Applicant submitted fraudulent marks. In 2016, the Applicant submitted fraudulent marks for Grade 11 English and Geography examinations and tests when the learner scripts were not marked, “A”82. No disciplinary action was taken against him but Vilakazi just warned him and requested him to mark all the scripts.

14) On 9 January 2019, a management meeting was held with the Applicant to establish his whereabouts and the learner scripts. The meeting was chaired by the circuit manager and the Applicant was represented by a member of SADTU. On 23 January 2019 another meeting was held with the Applicant and the school governing body (SGB) as recorded in “A”93. Mrs Zikode, the Deputy Chairperson of the SGB suggested that the Applicant be removed from the school and report to the circuit office for safety reasons because parents of the learners were also complaining about him, “A”96. In his defense, the Applicant submitted leave forms, “A”99, 105, 107, 109, 111, 115 and 116.

15) Nxumalo was the chairperson at the Applicant’s disciplinary hearing and Mr Mdunge appeared on behalf of the Respondent. The Applicant pleaded guilty to all the charges. Nxumalo asked the Applicant if he understood the consequences of pleading guilty and the Applicant’s response was yes. Dismissal was the recommended sanction as the Applicant was charged and found guilty in terms of s17(1)(a) of the Employment of Educators Act of 1998.

The Applicant’s case

16) The Applicant’s case is summarized as follows. The Applicant was requested by Vilakazi to bring the learner scripts. The Applicant went to his office but could not find the scripts there. Although he was confused by this, but he informed Vilakazi that the scripts were not there and requested to go and look for the scripts at his cottage. The scripts were not at the cottage either so the Applicant decided to go to his home at Matatiela to look for the scripts. On his way to Matatiela he had a puncher. While he was at Matatiela he fell ill due to stress. He had a server headache and decided to consult a traditional healer because he also developed into piles.

17) Due to the severity of his illness, he could not contact anyone as he was not allowed to by his traditional healer, “B”88. At the school, there is a file which contains all his personal information including his next of kin. Vilakazi, as the school principal had the responsibility to contact his next of kin.

18) Upon his return in January 2019, the Applicant submitted all his sick notes as proof of his whereabouts. According to “B”68 only five days were recommended for leave and only three (3) days were recommended according to “B”71. “B”74 was not recommended because of the error that was made by the doctor with the dates on the sick note. He understands Clauses 14.3 and 14.6.2 of the Leave Determination for Leave of Absence for the Public Sector but does not understand why he was punished twice because he was already given leave without pay. He had a valid reason for being absent from August 2018 to December 2018.

19) The reason for him pleading guilty at the hearing was because his representative and the Employer representative had a discussion prior to the hearing with the intention to lessen the sanction. The two representatives gave him two reasons why he should plead guilty. The first reason was that if he does not waste the state’s resources and plead guilty, he would be given a lesser sanction. The second reason was that he would be taken to another school away from Amakhuze.

20) In June 2018 the Applicant was at home with his wife, Adelaide and was busy marking the learner scripts. Adelaide did not know anything about the Applicant’s sickness because they were not in good terms and not communicating at the time.

21) The Applicant stated further that the Amakhuze Secondary School Assessment Policy states that there will be controlled tests written at the end of the quarter i.e. March, June, September and November, final examination will be written at the end of the last quarter as per commenced date stipulated by the Department of Education. The Applicant explained the difference between the examination and a controlled test as stipulated in the policy. June controlled test therefore was not an examination and could not fall within Section 17 (1) (a) of the EEA since this section speaks of examinations or promotional reports.

22) The Applicant worked with Molemela at Leshman Secondary School from 2019 until he was dismissed in 2021. His attendance was very good and he showed signs of leadership. He also compiled all the files accordingly and as a result the files were never submitted late to the head office. The school struggled to reach the desired outcome prior to the Applicant’s arrival but the results improved after his arrival.

SUMMARY OF ARGUMENTS

23) The Respondent argued that the Applicant contravened section 1 7 of the Employment of Educators Act No. 76 of 1998 and the sanction of a dismissal was the appropriate sanction. The relationship between the Applicant and the Department of Education is broken in such that he is no longer trusted. He submitted fraudulent marks while scripts were not marked. The Applicant was a Senior member at the school, he was aware of the rule and he knew that breaking the rule would result in a disciplinary action. The Applicant was absent for the period of 72 days and his absence was unauthorised because he did not follow the proper procedures. No reporting was made to the principal of the school and no leave forms were forwarded timeously.

24) Section 20(a) of the South African Schools Act states that: “The SGB of a public school must promote the best interests of the school and strive to ensure its development through the provision of quality education for all learners at the school”. Section 20(e) of this Act stipulates that: “The SGB support the principal, educators and other staff of the school in the performance of their professional functions”. The SGB plays an important part in the decisions that are made in the school, this also applies to the Representative of the learners. In terms of Determination and directive on leave of absence in the Public Service issued in August 2021, it is incumbent on the employee to utilise and manage his/her normal sick leave responsibly and with circumspect, The Applicant failed to do that, instead he abused his leave. The Respondent made reference to Classic Number Trading 80 (Pty) Ltd t/a Nashua Tshwane v Shaik-Ahmed and others [2015] 71 (LC) and Mgobhozi v Naidoo NO & Others [2006] 3 BLLR 242 (LAC). The leave forms together with the supporting documents that were forwarded by the Applicant are not valid as they constitute hearsay evidence. They were not supported or approved by the principal.

25) The Personnel Administrative Measures (PAM) states that “All educators should be at school during the formal school day, which should not be less than 7 hours per day, except for special reasons and with the prior permission of the principal. Chapter 2 (Bill of Rights) of the Constitution of the Republic of South Africa, 1996 states that “Everyone has the right to a basic education including adult basic education” Grade11 learners of Amakhuze Secondary School were deprived their right to education. The Applicant failed to provide teaching and learning to these learners for the period of 72 days. Section 14(1)(a) of the Employment of Educators Act 76 of 1998 provides that “An educator appointed in a permanent capacity who — (a) “is absent from work for a period exceeding 14 consecutive days without permission of the employer; shall, unless the employer directs otherwise, be deemed to have been discharged from service on account of misconduct” The Applicant was absent for 72 days, far more than 14 days and he is deemed to have been discharged himself.

26) Applicant argued that the section 17. (1)(a) of the EEA of 1998 speaks of the Examinations or Promotional Reports which is not the assessment that the Applicant is charged for. To fail to take instruction is to refuse to do what you are told by the authority. The Applicant never refused to submit Geography mark scripts hence even when he was not getting them he came back to the principal and told him he is not finding scripts and asked to go and look for them at his cottage and latter home, Matatiele. The Applicant also made reference to Kievits Kroon Country Estate(PTY) LTD and Johanna Mmoledi, Commisssioner Khomotjo Daniel Matji and CCMA Case No. 875/12 Supreme Court of Appeal of SA

ANALYSIS OF EVIDENCE AND ARGUMENT

27) It is trite that the employer bears the onus to justify the dismissal once the existence thereof has been proven by the employee. In terms of Section 188 of the Labour Relations Act (LRA) the employer must prove that the dismissal was for a fair reason based on the employee’s conduct, capacity or employer’s operational requirements and that it was executed through a fair procedure.

28) The Applicant in this case challenges both the substantive and procedural fairness of his dismissal. In terms of procedure, the Applicant’s complain is that he was told how to plead at the disciplinary hearing. The evidence of the Respondent is that both the representatives at the disciplinary hearing tried to raise a point in-limine at the commencement of the disciplinary hearing but the chairperson stopped them. The Applicant pleaded guilty to all charges and the sanction of dismissal was therefore preferred. In light of the fact that there were no issues concerning the disciplinary process, I therefore find that the procedure was fair.

29) The Applicant’s argument with regards to substantive fairness is that firstly he did not fail to follow the instruction from Vilakazi when he instructed him to bring the learner scripts. He went to look for the scripts in the class room. When he could not find them, he reported to Vilakazi that he could not find the scripts. He then decided to go to his home in Matatiela when he realized that the scripts were not at the cottage. The whole time he was at Matatiela he was looking for the scripts. The Applicant not only failed to report his whereabouts after he decided to go to Matatiela but also did not submit the scripts as requested. I find that the Applicant failed to follow the instruction that was given to him by his supervisor because the learner scripts were not submitted to date.

30) The Applicant further argued that while he was at his home in Matatiela he fell very sick and was under the supervision of a traditional healer and could not make contact with anyone. In National Nuclear Regulator v CCMA and others (JR 3104/12) [2016] ZALCJHB 177; [2017] JOL 36763 (handed down on 11 May 2016) the Labour Court held that the dismissal of the Employee for failing to adhere to normal working hours, unauthorised absence from work and failure to comply with a reasonable instruction from his superior, to be substantively fair. It is common in this case that the Applicant’s where about were unknown to the Respondent. The Applicant only submitted sick notes upon his return to work in January 2019 in an attempt to justify his unauthorised absence from work.

31) In Mgobhozi v Naidoo NO and others [2006] 3 BLLR 242 (LAC) the Labour Appeal Court held that in terms of the LRA the Court was entitled to enquire as to why the medical certificate was not provided in an affidavit form since a medical certificate on its own constituted hearsay evidence. In this case all the medical certificates submitted by the Applicant were not in affidavit form and therefore constitute hearsay evidence.

32) The Applicant argued further that the marks that he submitted were for term two which was the controlled test not an examination as stated on Section 17 (1) (a). June controlled test was not an examination and could not fall within Section 17 (1) (a) since this section speaks of examinations or promotional reports. The undisputed evidence of the Respondent is that the tests were for promotional purposes and the test marks are added with that of the tasks to give a promotion. It is common that the Applicant submitted marks but there were no scripts submitted as proof of the mark allocation. It was therefore impossible to know firstly whether the scripts were marked or not and secondly where the marks that were submitted by the Applicant came from.

33) I accept the version of the Respondent and find its witnesses credible and honest as opposed to the Applicant. I find the misconduct of the Applicant particularly unacceptable given the fact that that he occupied a position of authority and was responsible for management of other employees.

34) In light of the above, I find that the Respondent successfully proved on a balance of probabilities that the dismissal of the Applicant was fair. Consequently, I find that the dismissal of the Applicant was procedurally and substantively fair. In conclusion, I deem the following award fair and equitable.

AWARD

35) The dismissal of the Applicant, Mohlefi Sebapalo was procedurally and substantively fair.

Signature:

Commissioner: Nozipho B Khumalo