In the Arbitration between:

NAPTOSA OBO M J BOOYSEN
(Union/Applicant)

and

DEPARTMENT OF EDUCATION – WESTERN CAPE
(Respondent)

Union / Applicant’s representative: Mr. F Tassiem
Telephone: 083 707 8296
Telefax: not available
Email: faeezt@naptosa.org.za

Respondent’s representative: Ms. A Blanker
Telephone: 021 467 29224
Telefax: 086 751 7884
Email: Abigail.Samson@westerncape.gov.za

 
PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. The arbitration hearing under the auspices of the Education Labour Relations Council (ELRC) took place on 12 December 2019 in Kuilsriver. Mr. F Tassiem of NAPTOSA represented the applicant, Mr. M J Booysen. Ms. A Blanker represented the respondent, the Department of Education – Western Cape (WCED). The proceedings were digitally recorded.

THE ISSUE IN DISPUTE

2. I must determine whether the respondent unfairly dismissed the applicant and if so, I must determine the appropriate remedy.

BACKGROUND TO THE ISSUE

3. The applicant was a post level 1 Educator at Riebeeck Valley Special School in Riebeeck Wes since 1 October 2016. On 20 February 2019 the respondent informed the applicant to attend a disciplinary hearing and to answer to a main charge in terms of section 18(1)(ee) of the Employment of Educators Act 76 of 1998 (EEA) of committing an act of dishonesty during March 2018 by providing the answers to year 3 learners of the school for the Natural Science and Technology test.

4. The disciplinary hearing was held on 21 June- and 18 September 2018. The applicant initially pleaded not guilty to the charge but later changed his plea to guilty. After considering the evidence and the mitigating and aggravating factors, the presiding officer imposed a sanction of a final written warning valid for 6 months and a suspension without pay for a period of three months suspended for 12 months.

5. According to item 9 of Schedule 2 of the EEA an educator or an employer may appeal against the finding or sanction within 5 working days of receiving notice of the final outcome. The respondent filed an appeal against the sanction imposed on the applicant with the Western Cape Minister of Education. The respondent submitted that the appropriate sanction was dismissal because of the serious nature of the misconduct.

6. On 20 February 2019 the Minister informed the applicant that the respondent’s appeal is upheld and that having considered the presiding officer’s report and the circumstances of this case the sanction is amended to dismissal. The applicant’s salary at the time of his dismissal was R262 899.00 per annum.

7. The applicant subsequently referred an unfair dismissal dispute to the ELRC and a certificate of non resolution of the dispute was issued on the 15 April 2019. On the 15 March 2019 the applicant applied for arbitration of the dispute.

8. The applicant claims that the sanction of dismissal was too harsh and he seeks retrospective reinstatement as primary relief. The existence of the rule (dishonesty), knowledge of the rule and the reasonableness of the rules relating to the charge against the applicant is not in dispute. The procedural fairness of the dismissal is also not in dispute.

9. The respondent claims that the applicant’s dismissal was fair.

SUMMARY OF EVIDENCE AND ARGUMENT

10. The parties submitted a joint bundle of documentation marked as pages 1-35 into evidence. The respondent called Mr. T Mofokeng as a witness. The applicant did not testify or call any witnesses on his behalf. The consequences of him failing to testify was explained to the applicant.

11. I have considered all the evidence and argument presented in this arbitration, but because section 138(7) of the Labour Relations Act, 66 of 1995 (LRA) requires an award to be issued with brief reasons for the findings, I shall only refer to the evidence that I regard as necessary to substantiate my findings in the determination of the dispute.

The respondent’s case
12. Mr. T Mofokeng testified under oath. He is the Deputy Director: Policy Coordination for the WCED.

13. Mr. Mofokeng submitted that he consulted and advised the Minister on the appeal that was lodged by the respondent and he referred to the appeal outcome report (pages 15-19 of the bundle).

14. He testified that after considering all the evidence and representations it was found that the presiding officer had misdirected herself. Mr. Mofokeng explained that they considered how similar cases were dealt with in the past and found that educators were dismissed for dishonesty relating to exam irregularities.

15. Mr. Mofokeng explained that Riebeeck Valley Special School is a special needs school and that the same high standards of honesty and integrity is expected from educators at this school as would have been the case at a mainstream school. He submitted that the applicant’s conduct damaged the trust relationship and that the appropriate sanction was dismissal.

16. Under cross examination it was put to Mr. Mofokeng that it appears from the Minister’s report that previous incidents involving the applicant factored into the decision to dismiss him. Mr. Mofokeng replied that the main factor that led to the decision was that the trust between the applicant and respondent is broken. Mr. Mofokeng testified that he is not aware of any previous disciplinary action against the applicant.

17. It was put to Mr. Mofokeng that what the applicant had done was to give the answers to the Natural Science and Technology test to the learners prior to the test and that one of the leaners then copied the question paper. It was put to Mr. Mofokeng that the leaners do not have the mental capacity to remember the answers. Mr. Mofokeng replied that the applicant pleaded guilty to the charge and that he knew what he did was wrong.

18. It was put to Mr. Mofokeng that the applicant’s performance was satisfactory. Mr. Mofokeng repeated that the nature of the misconduct had broken the trust relationship.

19. Ms. Blanker argued that the sanction imposed by the presiding officer was disproportionate considering the merits of the case and that it was not fair and equitable. The fact that the school is a special needs school does not mean that the leaners must expect less. The applicant was dishonest and had broken the trust relationship and the respondent had consistently dismissed educators for similar offences in the past.

The applicant’s case
20. The applicant did not testify. Mr. Tassiem argued that the applicant had admitted wrongdoing by pleading guilty and that his IQMS scores were satisfactorily. He further argued that it was not considered that the school is a special needs school and that when one gives answers to these learners they can’t remember it. He submitted that the trust relationship is not irretrievably broken and that the presiding officer did not err in the sanction that she has imposed. Mr. Tassiem prays for the applicant to be reinstated.

ANALYSES OF EVIDENCE AND ARGUMENTS

21. Section 192 of the LRA provides that the employee must establish the existence of a dismissal and if that has been established the employer bears the onus to prove on a balance of probabilities that the dismissal is fair. The only issue to decide it whether the sanction of dismissal was an appropriate sanction for the contravention of the rule.

22. In deciding the fairness of the applicant’s dismissal I must consider Schedule 8, item 7 of the Code of Good Practice: Dismissal. In terms of item 3(4) of this code it is generally not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such a gravity that it makes a continued employment relationship intolerable.

23. I must also take into account the principals laid down by the Constitutional Court in Sidumo and Congress of South African Trade Unions v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC). The Constitutional Court held that fairness requires a balancing of the interest of the employer and employee parties. An arbitrator must consider the totality of circumstances in determining the fairness of the sanction.

24. The applicant did not testify. But what could be establish from the documentary evidence and the testimony of Mr. Mofokeng, is that the applicant had a clean disciplinary record prior to his dismissal and that his performance was rated as satisfactory. He had about 3 years and 4 months of service at the school prior to his dismissal and he has pleaded guilty to the allegation. These facts I consider as mitigating factors.

25. Mr. Tassiem argued that the special needs leaners would not have remembered the answers to the questions that was provided to them by the applicant prior to the exam. No evidence was however presented that any of learners in the applicant’s class would have remembered the answers. But this is neither here nor there. The fact is that the applicant was aware that he may not provide the answers of exam papers to leaners prior to an exam. He was aware that it would be dishonest if he did so. Educators must set an example to learners, whether the learners have special needs or not. The most basic example to set is one of honesty and integrity. By providing leaners with answers to exam papers, the example that is set is that it is okay to cheat.

26. In Nedcor Bank Ltd v Frank & others (2002) 23 ILJ 1243 (LAC) the Labour Appeal Court held that dishonesty entails “a lack of integrity or straightforwardness and in particular a willingness to steal, cheat, lie or act fraudulent”. The conduct of the applicant falls neatly within this description.

27. The abovementioned Code of Good Practice: Dismissal lists gross dishonesty as a permissible ground for dismissal. Our labour law dealt extensively, in a number of cases, with the question of determining an appropriate sanction where an employee has been found guilty of a charge that includes an element of dishonesty. Some of these are: Anglo American Farms t/a Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC); De Beers Consolidated Mines (Ltd) v CCMA & Others (2000) 21 ILJ 1051 (LAC); Komjwayo v Anglo American Farms (1992) 13 ILJ 573 (LAC); Central News Agency (Pty) Ltd v CCAWU & Another (1991) 12 ILJ 340 (LAC); Consani Engineering (Pty) Ltd v CCMA & Others [2004] 10 BLLR 995 (LC); Metcash Trading Ltd t/a Metro Cash and Carry v Fobb & Another (1998) 19 ILJ 1516 (LC); Standard Bank of SA v CCMA (1998) 19 ILJ 903 (LC); Lefifi v SA Breweries (1999)20 ILJ 1327 (CCMA); Naidoo v Lever Ponds (1999) 20 ILJ 1610 (CCMA); and FAWU and Others v Kentucky Fried Chicken Case no EC17499 (12/08/2000). One can rely on any of the abovementioned cases to show how serious dishonesty is regarded in the workplace.

28. In several post-Sidomo judgments the Labour Court continues to take a strong line against employees who have been dismissed for dishonesty. In Kalik v Truworths (Gateway) & others (2007) 28 ILJ 2796 (LC) the court held in a review application that once an employee’s conduct is tainted with dishonesty, mitigating circumstances can never prevail. The court reached similar conclusions in Hulett Aluminium (Pty) LTD v Bargaining Council for the Metal Industry & others [2008] 3 BLLR 241 (LC) and MEC for Health (Gauteng) v Mathamini & others [2008] 29 ILJ 366 (LC), in which the employee’s misconduct was also tainted with dishonesty. In Member of the Executive Council for Finance, KwaZulu-Natal & another v Dorkin NO & another [2008] 6 BLLR 540 (LAC) the court held that no mitigating factors could possibly be raised in favour of an employee who had committed what is viewed as very serious misconduct.

29. In effect these more recent cases confirm the majority ruling in De Beers Consolidated Mines (Ltd) v CCMA & Others (2000) 21 ILJ 1051 (LAC) where it was found at paragraphs 23 to 24 that:
[23] “The seriousness of dishonesty – i.e. whether it can be stigmatized as gross or not – depends not only, or even mainly, on the act of dishonesty itself but on the way in which it impacts on the employer’s business.
[24] The employees in casu were not dismissed in order to punish them. They were dismissed because the employer was not prepared to run the risk of employing them any longer once they had been shown to be dishonest.”

30. Mr. Mofokeng’s uncontested evidence is that the respondent has consistently dismissed educators for exam related irregularities in the past. He was adamant that the applicant had damaged the trust relationship beyond repair.

31. Notwithstanding the mitigating factors referred to in paragraph 24 above, I am persuaded that the applicant’s dishonesty went to the heart of the trust relationship. I accordingly find that the respondent has discharged the onus of proving that the Applicant’s dismissal was substantively fair. The procedural fairness of the dismissal is not in dispute.

AWARD

I find that the dismissal of the applicant was fair. The dispute referral is dismissed.

ELRC Panellist: Jacques Buitendag