PA JACOBS “the Applicant”

and

DEPARTMENT OF EDUCATION – WESTERN CAPE PROVINCE “the Respondent”

ARBITRATION AWARD

Case Number: ELRC756 – 19/20WC

Last date of arbitration: 15 March 2021
Final closing arguments submitted in writing on: 22 March 2021
Date of award: 19 April 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 15 March 2021.

2. The Applicant is Mr Jacobs, PA, represented by Mr Brunsdon, H, an attorney, following a successful application for legal representation. The Respondent is the Western Cape Department of Education, represented by Ms Mathshaya, D.

Issue to be decided

3. The dismissal of the Applicant is not in dispute. I must determine whether his dismissal was substantively and procedurally fair.

Background to the dispute

4. The Applicant was employed as an educator at John Ramsey High School (“the School”) since 2002. He earned R26 500,00 per month at the time of his dismissal.

5. The Applicant was charged with contravention of section 17(1)(a) of the Employment of Educators Act 76 of 1998 (“the EEA”), in that, during November 2018, he committed an act of fraud by awarding marks to Grade 11 Mathematics literacy learners for the final examinations. In the alternative he was charged with contravention of section 18(1)(ee) of the EEA, in that, during November 2018, he committed an act of dishonesty by awarding marks to Grade 11 Mathematics Literacy learners for the final exams.

6. The Applicant pleaded guilty, and the chairperson of the disciplinary hearing found him guilty on the main charge of contravening section 17(1)(a) of the EEA. Section 17(1)(a) of the EEA states that an educator must be dismissed if he or she is found guilty of theft, bribery, fraud, or an act of corruption in regard to examination or promotional reports.

7. Although the chairperson of the disciplinary hearing found the Applicant guilty on contravening section 17(1)(a) of the EEA, she did not impose the mandatory sanction of dismissal, but imposed a sanction of a fine of R10 000,00 and a three-month unpaid suspension which was suspended for a period of twelve months. The Western Cape Department of Education appealed to the Provincial Minister of Education in terms of clause 9 of Schedule 2 of the EEA, whereafter the sanction was replaced with a sanction of dismissal.

8. The Applicant does not dispute that he pleaded guilty. He does not dispute that he awarded extra marks to the learners. The Applicant admits that he was dishonest but denies that he committed fraud. The Applicant submits that he intended to plead guilty to the alternative charge of contravening section 18(1)(ee) of the EEA, and that the sanction imposed by the chairperson was the correct sanction, as section 18(1)(ee) does not carry a mandatory sanction of dismissal. In terms of substantive fairness the Applicant therefore also challenges the appropriateness of the sanction of dismissal. The Minister acted functus officio in overturning the lesser sanction on appeal. The Applicant argues that the chairperson handed down the correct sanction against the Applicant but erred in finding him guilty on section 17(1)(a) of the EEA, as her reasoning, the Applicant’s intention and the testimony of the witnesses all alluded to Section 18(1)(ee) of the EEA.

9. The Applicant challenges procedural fairness in that the Respondent erred in appealing the sanction to the Provincial Minister of Education, instead of to the Labour Court. The Provincial Minister of Education acted ultra vires when she overturned the sanction of the chairperson to a dismissal of the Applicant. The Provincial Minister of Education should have recommended that the matter be appealed to the Labour Court alternatively that the finding of the chairperson be changed to reflect a guilty finding in terms of section 18(1)(ee) instead of section 17(1)(a) of the EEA, bringing the finding and subsequent sanction in line with each other.

10. 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 record of the proceedings will reflect the complete testimony of the witnesses.

Respondent’s case

11. The Respondent submitted the documents contained in bundles A, B, C, and D (transcript of the recording of the disciplinary hearing).

12. Roschin Ramawoothar (“Ramawoothar”) testified under oath that he is the School principal since 2006. The School has a process where marks are assessed at the end of the year, and re-marking is done where learners are close to the 30% pass rate. That is done in a progression and promotion meeting. Each educator received a copy of the policy that governs that process. B1 reflects the policy. All the educators are aware of the policy. Marks cannot be added without supporting evidence. B8 reflects the Guide to Educators which Ramawoothar received form the district office. He put it on a letterhead of the School, and it was given to all the educators.

13. The School had a dip in the matric results in 2018, and in January 2019 a number of subject advisors came to the School to assess all the school-based assessments for grade 8 to 12. He was then advised by Mr Hendricks, the circuit manager, that they found discrepancies in respect of the marks awarded by the Applicant.

14. A School Assessment Irregularity Meeting was held, and the Applicant pleaded guilty to the irregularities in that meeting. The three learners who were given extra marks by the Applicant were promoted to grade 12. It advantaged the learners. The crux of the matter is that no educator is allowed to add or change marks without supporting evidence. The educator is supposed to revisit all the assessments from January to December, and if no extras marks supported by evidence can be found, the leaner stays in the grade.

15. There is a grey area in terms of transferring the marks to the schedule. The witness has no trust issues with the Applicant. He is a respected member of the staff and the community.

16. Under cross-examination Ramawoothar testified that he will welcome the Applicant back. He will be able to trust him with marks and scripts.

17. Wayne Grant Hendricks (“Hendricks”) testified under oath that he is the circuit manager responsible for the School. He investigated the matter and found the irregularities. The Applicant admitted that he added the marks to the learners’ mark sheets. He accepted responsibility and said he would never do it again. The District Assessment Irregularity Meeting considered the seriousness of the transgression and referred the matter to Labour Relations.

18. The Department had the authority to appeal the outcome of the disciplinary hearing. The adding of marks could prejudice learners in a manner that they cannot cope with the next year’s demands as they should not have been promoted. It could also prejudice the School in terms of its pass rate performance. It is not allowed to simply add marks.

19. Under cross-examination Hendricks testified that the Applicant admitted that he changed the marks. They did not ask him whether he admitted to dishonesty or fraud. Hendricks was the Applicant’s principal before, and the Applicant was a good educator. He showed remorse.

20. Marius Marx (“Marx”) testified under oath that he is the DCS Mathematic Literacy in the Western Cape. The School had a high failure rate in grade 12’s. They investigated and found the discrepancies in that marks were added. The variances were high, as 13 out of 100 became 35 out of 100, for instance in respect of the learner Bianca Engelbrecht. It was a 22-mark increase. Educators are not allo9wed to add marks in that manner. The potential impact on learners is that they might pass grade 11 in that way, but then fail grade 12. If one adjusts the marks with 22, the learner will definitely struggle in the next year. Even though the learners passed grade 12 the next year, that could not have been known at the time when the marks were added without evidence. The intentional adding of marks without evidence would constitute fraud, in his opinion.

21. Under cross-examination Marx testified that he cannot remember whether the technical difference between fraud and dishonesty had been explained to the Applicant. The mathematics literacy educators of the School did not allow him in the classes, although he was the subject advisor. His interactions with the Applicant were limited.

Applicant’s case

22. The Applicant submitted the documents contained in bundle E.

23. Peter Andrew Jacobs, the Applicant, testified under oath that started as an educator in 1987, then went into private business for eleven years, and joined the School in 2002. He has BA degree. He had a clean disciplinary record.

24. He appreciates the seriousness of the transgression and takes full responsibility. He was in a promotional meeting with the grade 11 educators, the principal, Ramawoothar, and two deputy principals. They asked him whether he could add marks for the learners, and he agreed to do it. He went to the computer, changed the marks, and gave them a new marks schedule. The marks were signed off by the circuit manager. The discrepancies were then found in January 2019.

25. He was a member of SADTU, and it was the union’s rule that no subject advisors be allowed in the classrooms. He just followed their rules. He changed the marks on request of the meeting. He does take full responsibility. He made a mistake and does not plead guilty to fraud or dishonesty. He will accept that he was dishonest, in order to take responsibility. He accepted the sanction of the chairperson of the disciplinary hearing. He was not dishonest by himself, but he will take responsibility for being dishonest in the group.

26. The passed year was difficult, he had to sell his car. He trusted people would stand by him, but now he stands alone. He will never sit in a meeting where marks are added again, should he be reinstated. He had a good relationship with the principal and the educators at the School. He is involved in community upliftment. He looks after his mentally challenged son. He wants to be reinstated without any loss of income.

27. Under cross-examination the Applicant testified that he is aware of the assessment policy and knows the contents. He is not allowed to add marks by himself. He did it because it was asked in the meeting. He did not do it on his own. The policy does not allow what he did. He does not regard his actions as fraud because the meeting requested that he do it.

28. The Applicant agrees that it would be fraud if he did it on his own. He now understands he should not have added the marks but should have let the learners fail.

29. In re-examination the Applicant testified that he would not have pleaded guilty on the main charge if he understood the technical differences between fraud and dishonesty. It was put to him whether he pleaded guilty to section 17 or section 18. He was told he will receive a fine.

Analysis of evidence and argument

30. Both parties submitted extensive written closing arguments which form part of the record and will not be repeated here. I have considered all the 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.

31. 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, as well as 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). The dismissal of the Applicant is not in dispute. The Applicant disputes the substantive and procedural fairness of his dismissal, and the Respondent is therefore required to prove on a balance of probabilities that it was substantively and procedurally fair.

32. 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)).

33. The Applicant was charged with contravention of section 17(1)(a) of the Employment of Educators Act 76 of 1998 (“the EEA”), in that, during November 2018, he committed an act of fraud by awarding marks to Grade 11 Mathematics literacy learners for the final examinations. In the alternative he was charged with contravention of section 18(1(ee) of the EEA, in that, during November 2018, he committed an act of dishonesty by awarding marks to Grade 11 Mathematics Literacy learners for the final exams.

Substantive fairness

34. The Applicant does not dispute that he added marks to the mark sheets of the learners, without having any supporting evidence for the additional marks. This resulted in the learners obtaining a pass mark of 30%+, while it was not actually achieved by the learners.

35. Fraud is defined as the “unlawful making, with the intent to defraud, of a misrepresentation which causes actual prejudice, or which is potentially prejudicial to another” – see Hunt South African Criminal Law & Procedure vol II, 2 ed JRL Milton (Juta1982). The Applicant does not dispute that he added marks to the mark sheets of the learners without having any evidence to justify it. I find on a balance of probabilities that made a misrepresentation of what marks the learners actually achieved in their assessments. It was clearly done unlawfully, contrary to the Respondent’s School Assessment Policy, with the intention to defraud. There is undisputed evidence that at the time his actions had at least the potential of prejudicing the School’s pass rate, and/or prejudicing the learners by promoting them to grade 12 whilst they were not ready for it. I cannot accept the Applicant’s version that he merely acted on request of the persons in the promotion meeting. There is no evidence that he acted under any kind of duress. He cannot escape culpability by blaming the meeting, while he was a willing participant in that practice. His actions indeed constituted fraud, and not mere dishonesty.

36. The Applicant clearly made a conscious, deliberate misrepresentation. The information on the mark sheets was false from the moment he wrote it down, and it can only be seen as being a deliberate action. The Applicant is a highly educated, intelligent person, and I find it highly improbable that he could have thought that he his actions were justifiable because the promotion meeting requested it.

37. I am satisfied that the Respondent proved on a balance of probabilities that the Applicant did commit the misconduct he was found guilty of, i.e. contravention of section 17(1)(a) of the EEA, and that the Applicant contravened a rule or standard regulating conduct in, or of relevance to, the workplace.

38. The Applicant admitted during his testimony that he was aware of the rules in the Assessment Policy. 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 he was not aware of the rule or policy. Fraud, as in this case, is an example of such behaviour. There can be no credible basis for a belief that there in nothing wrong with adding marks to learners’ marksheets without any supporting evidence.

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

40. 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 he is a senior employee in a position of trust.

41. Section 17(1) of the EEA states that dismissal is the mandatory sanction for the offence the Applicant has been found guilty of. Therefore, under the circumstances, this section as it is worded, does not give any discretion to the chairperson of a disciplinary hearing, or as in this matter, to the Provincial Minister of Education on appeal, in applying a sanction other than dismissal as an appropriate sanction. I therefore find that the sanction of dismissal is fair and appropriate in the circumstances.

42. I find that dismissal is an appropriate sanction in the circumstances.

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

Procedural fairness

44. The Applicant challenges procedural fairness in that the Respondent erred in appealing the sanction to the Provincial Minister of Education, instead of to the Labour Court. The Provincial Minister of Education acted ultra vires when she overturned the sanction of the chairperson to a dismissal of the Applicant. The Provincial Minister of Education should have recommended that the matter be appealed to the Labour Court alternatively that the finding of the chairperson be changed to reflect a guilty finding in terms of section 18(1)(ee) instead of section 17(1)(a) of the EEA, bringing the finding and subsequent sanction in line with each other.

45. The chairperson of the disciplinary hearing did find the Applicant guilty on section 17(1)(a) of the EEA. That much is clear from the record of the disciplinary hearing. She did not have a discretion in respect of imposing any other sanction that the one made mandatory by the Legislature in terms of section 17(1), i.e. dismissal. She clearly erred in law when she imposed the lesser sanction of a R10 000,00 fine and a three-month period of unpaid suspension, suspended for twelve months.

46. Section 25(2) of the EEA states that an educator or an employer has the right to appeal to the Minister or the member of the Executive Council, as the case may be, against the finding by the presiding officer of a disciplinary hearing and against the sanction imposed. The Respondent as employer therefore had the right of appeal and was not obliged to approach the Labour Court for relief, as argued by the Applicant. I find that the Respondent acted procedurally correct by appealing to the Provincial Minister of Education the sanction imposed by the chairperson. Once the appeal reached the Minister, she had no option but to replace the sanction imposed by the chairperson with the mandatory sanction of dismissal prescribed by section 17(1) of the EEA. The Applicant’s conduct clearly justified a finding of guilt on section 17(1)(a) of the EEA, therefore the argument of the Applicant that the Minister should have replaced the finding of guilt to one of section 18(1)(ee) of the EEA, does not hold water.

47. I find no substance in the Applicant’s argument that the Respondent erred in appealing the sanction to the Provincial Minister of Education, instead of to the Labour Court. I cannot find that the Provincial Minister of Education acted ultra vires when she overturned the sanction of the chairperson to a dismissal of the Applicant. I find that the fact that the appeal to the Provincial Minister was not lodged within the prescribed time frame, and was not accompanied by a condonation application, did not cause any prejudice to the Applicant. The delay was not unreasonably long, and in this case actually benefitted the Applicant to the extent that his dismissal was also delayed.

48. I find no procedural flaws that caused any prejudice to the Applicant, and I accordingly find the Applicant’s dismissal procedurally fair.

Relief

49. The Applicant is not entitled to relief.

Award

50. The application is dismissed.

SIGNED AT KEMPTON PARK ON THIS 19th DAY OF APRIL 2021.

Coen Havenga