22 July 2025 – ELRC457-24-25GP

Case Number: ELRC457-24-25GP
Commissioner: E Maree
Date of Award: 21 July 2025

In the ARBITRATION between

SAOU obo Dirk Jakobus Barnard
(Applicant/s)

And

            Department of Education-Gauteng

(Respondent)

Details of hearing and representation

The arbitration regarding an alleged unfair dismissal, referred in terms of section 191 of the Labour Relations Act 66 of 1995 (as amended), the ‘’LRA’’ commenced on 31 October 2024 and was thereafter heard on 28 February 2025, 25 April 2025, 13 May 2025 and concluded on 13 June 2025. It was conducted via ZOOM/TEAMS.
The applicant was represented by Mrs. A. Bester an official from SAOU, while the respondent was represented by Mr. P Nkosi the DCS.
The arbitration was electronically recorded, and handwritten notes were taken. At the conclusion of the arbitration, the parties have agreed to submit written closing arguments on/before 30 June 2025. Both parties duly complied.

Issues to be decided

I must determine if the dismissal of the applicant was substantively fair and to determine appropriate relief in the event of a finding of unfairness.
The applicant disputed the contravention of the workplace rules.

Background to the dispute

The applicant was dismissed on 14 August 2024 subsequent to a disciplinary hearing on charges of misconduct.
The applicant commenced employment during 1994 as educator and at the time of this dismissal was the Principal at Brentwood Park Primary School since 1 August 2015 earning R625, 000. 00 per year.
The applicant seeks reinstatement.
Both parties submitted bundles of documents that were not placed in dispute.
Signed pre-arbitration minutes were also submitted, setting out amongst others, common cause and disputed issues, as well the issue to be determined (substantive fairness).

Survey of evidence and argument

The LRA requires that brief reasons be given in an award, therefore the following is a summary of the relevant evidence given under oath and submissions made in argument all of which is not reflected in this award but had nevertheless been taken into account.

Respondent’s evidence

The respondent called six (6) witnesses in order to prove, on a balance of probabilities, that the dismissal was substantively and procedurally fair.
The first witness Mr. Derick Myburgh testified that he was the treasurer of the SGB (School Governing Body) at Brentwood Park Primary School for the period January 2020 until March 2021 and since March 2024 to date is the chairperson of the SGB. He had been co-opted at the SGB (with voting rights) since 28 May 2019. Following his election on this date, he received the minutes of the SGB meeting held on this day (he was not present) and one of the issues reflected was that the applicant indicated the need for the appointment of an internal HOD for School Based Support (SBST). The applicant indicated that the remuneration for such position would be between R1500, 00 – R2000, 00 per month. This was approved (Bundle B pages 33, 72). The applicant indicated that his wife ( Hanlie Barnard) was the only person who indicated interest (page 33). At the SGB meeting held on 25 August 2020 the remuneration was raised to R4917, 00 per month ( page 34 par. 9).
Mr Myburgh stated that as treasurer he was then tasked to investigate the issue and obtained the payment history of educators to assist him. He determined from that that Mrs Barnard was paid R4917. 00 per month that indeed exceeded the agreed amount (between R1500, 00 to R2000, 00 per month). The remuneration was paid from the section 38A monies. The SGB is responsible for the management of school monies and increases are authorised as part of the annual budget. This increase had a negative impact on the school finances as there were ‘’less money for other issues’’.
According to Mr. Myburgh the process followed regarding the appointment of Mrs. Barnard was that during a meeting in the staffroom, the applicant indicated that there was a new internal HOD post and that those who are interested can apply. Mrs Barnard was then the only one who raised her hand. This process was not correct as recruitments at the school for SGB positions are done in terms of the recruitment policy.
With reference to page 30 par. 30, Mr Myburgh submitted that the discussions at the financial committee meeting during August 2022 around section 38A led to ‘’a lot of arguments’’ with the applicant ‘’feeling that he was unfairly targeted’’. The environment ‘’was hostile’’ during the discussion and the applicant was ‘’immediately defensive and agitated’’ and amongst others said, ‘if you touch my section 38A I leave tomorrow’’. He determined that the 2023 budget (compiled by the applicant) had incorrect financial projections that showed that the school had/would have more income that what it actually had/would have. He presented his findings to the SGB regarding this and they ‘’were shocked’’. Due to these issues with the budget it was decided to inform educators that there would be no bonuses and no salary increases, and that no-one would be paid section 38A. The applicant indicated that he was not willing to approach the educators and it was agreed that the applicant should propose alternatives. On 23 November 2022 he was called by the applicant to a meeting during which the applicant told him he ‘’I cannot understand why you are doing this to my family. You are taking R22, 000. 00 from my family and I would have to sell my f.n car, my f..n caravan and my son’s f..n car’’. The reference to R22, 000. 00 was to the sections 38A payments made to the applicant and his wife. He again requested the applicant to give viable alternatives at the next meeting on 24 November.
Mr Myburgh testified that this meeting ‘’was very heated’’ and it was agreed that to led educators go would be the last resort as such would have a negative impact on the functioning of the school. On 28 November a meeting was held with the educators ( who were very hostile) which he could not understand. They were shown the projections regarding the number of learners and told of the two alternatives namely keep all educators but no increases for anyone or increases but three educators would lose their jobs. The educators then raised the issue of the section 38A payments which was also the reason for their hostility. It was then determined that the applicant, the previous morning sent an e-mail to the school management team indicating that section 38A would not be paid ‘’as cost cutting measure. This mail shows all the educators who were paid section 38A and what the amounts were. They were able to see that the applicant’s wife was paid higher remuneration than what they were paid.
According to Mr. Myburgh, Mr Kruger ( the previous chairperson of the SGB) resigned on 28 May (Bundle C) and thus on 29 May was no longer the chairperson. The applicant’s statement (Page 13) that the payment of section 38A was approved by Mr. Kruger was not true, as Mr Kruger no longer had the authority to do so. On 28 May, Mr. Mcloud was elected as SGB chairperson.
With reference to charge 2, Mr Myburgh submitted that the SGB is responsible for the assets of the school. He heard ‘’a rumour’’ that the school bus was used ‘’for holiday trips’’. He did not act at that stage as he was not involved at the school. During February 2021 he realised that the schools trailer was not at the shed but under a tree and when he asked the applicant this he said ‘’I don’t know’ why’. He later found out it was used for a ‘’manne naweek’’ and that ‘’some parents were asked for food and alcohol donations’’. He asked Mr. Mcloud if he was aware of this weekend and/or if such was approved by the SGB and was told ‘no’’. School property cannot be used without permission.
Mr Myburgh testified (charge 5) that the process regarding payment is that there must be a requisition (completed by the person who requests the expense), the principal must approve and sign it, then it is given to the treasurer, thereafter handed to the finance officer in order to process payment and it is approved on the banking ‘’app’’. Two people have to verify the release to pay whereafter it is loaded for payment. In the event of any changes, the instructions if given via email, the applicant would approach him and/or the chairperson then it goes to the finance officer to process.
Mr Myburgh submitted that at the end of each year, the SGB conducts an assessment (in terms off criteria) to determine if the principal must be paid a bonus. In 2021, Mr. McCloud did this for the first time, whereafter it was sent to him (as treasurer), to Mr. Venter ( deputy SGB chairperson ) and to Mr. Pistorius ( deputy Principal). Mr Pistorius gave the rating as per the performance indicators and he submits it to the school management team for evaluation. Mr. McCloud would collect the assessments and the percentage of the bonus is determined. Mr Mcloud would inform the applicant as principal who in turn informs the financial administrator, Mrs. Kruger. In this instance the applicant sent a mail to Mrs. Kruger indicating that he does not agree with the manner of the evaluation and that he was entitled to the full amount. The applicant then instructed Mrs Kruger to pay his full bonus as the calculation was wrong. Mrs Kruger then forward him the email and asked if it was approved/was aware and he indicted he was neither aware nor was it approved. He also informed Mr. McCloud and as it related to payment, the issue was to be reported to the department. Mr. Mcloud asked him not to do so, ‘’’for the image of the school’’ and he indicated that he would first have a discussion with the applicant before reporting it. During their discussion the applicant apologised and said it would not happen again. The applicant also indicated that he ‘’feels’ the evaluation was ‘biased’’ but they eventually ‘’cleared the air’’. Mr Myburgh submitted that the applicant misused his position as principal to give an unlawful instruction to a subordinate.
Towards the end of 2022 (the issue of the budget) he explained to the SGB at the meeting on 8 December 2022 how the expenses could be reduced such as no payment of Section 38A during 2023. The full SGB was in favour of this and it was only the applicant and Mr. Du Plessis who opposed it. On 28 or 29 January 2023 he was at school when he was approached by the applicant who said he would propose the payment of section 38A at the next meeting. He told the applicant he would ‘’look at it’’ but that he must remember that the SGB must approve it. On the Monday he received an email from the financial administrator for approval of payment for Pistorius R3625,00 /Barnard R10250,00/Erasmus R2650,00. He informed her that it had not been approved and that it must not be paid. Subsequent to this a meeting was held with officials from the department who agreed that the SGB was correct not to pay section 38A due to it’s financial situation. The issues were also reported to the department for disciplinary action.
The second witness, Mr. Sifiso Ndlala stated that he is at finance and administration, sub-directorate provisioning and as such monitor institutions, compile/prepare approval letters, do leases and invest surplus funds.
Mr Ndlala stated that section 38A payments are extra remuneration paid to an educator. To qualify the educator must have a persal number and the SGB of the school must have surplus funds and is to apply at the department. The application is reviewed, the employee verified and notches are checked. The payment schedule is prepared to determine if the gross amount is within the school’s budget. This is then approved at the Annual General Meeting of parents and the SGB. Then the application is sent to the department where they check if payment would effect the cash of the school. Section 38A is paid by the department and is used by the SGB for extra hours worked as per ‘’PAM’’ and is not used to pay for a post. The school could therefore not use it for the LTSM post and the payment of section 38A is for an employee of the department and it is applied for. The SGB cannot create a post and use section 38A to fund the post.
The third witness Ms Rozanne Klopper testified that she is the financial administrator at Brentwood. During January 2023, the applicant approached her and told her to pay section 38A to himself, Erasmus and Pistorius. She was to place the amounts on the payroll however, before she loaded the payments on the bank, the principal or treasurer has to sign it off. The instruction by the applicant was not correct as the SGB had decided during December that section 38A payments must stop. She did the payroll and contacted Mr. Myburgh, the treasurer of the SGB via email (and copied the applicant) and was informed that the payments were not authorised as the SGB stopped the payments in December.
Ms Klopper submitted that as financial officer she is at the SGB and was aware that the section 38A payments had been stopped. The payments were not done and taken off the payroll as the treasurer did not sign it off. Regarding charge 4, she is aware of the trip and that the school paid for the fuel. This was not authorised beforehand and she was given the receipts after work.
The fourth witness, Ms Barbara Bruyns testified that she is the Deputy Director: Transversal HR Services for the district office and had been employed by the respondent for 35 years. If there exists a vacant post at a school, the principal and SGB can advise the department thereof and inform the department of the requirements for the post. If there is a SGB post, the SGB has it’s own recruitment committee.
Ms Bruyns submitted regarding allegation 1 that the applicant could not have acted in such manner and that the SGB decides on vacancies. She was not aware of a HOD post for learner support services and the school is not an eksen school. The respondent does not have a HOD post for learner support services. In the event of a vacancy at school the SGB must act fairly towards everyone, have criteria and all employees must be allowed to apply.
In conclusion Ms. Bruyns stated that if the applicant’s wife applied, he should have recused himself from the process. No process was followed regarding the appointment. The salary was agreed to by the SGB (R1500, 00 – R2000, 00) but was higher after the appointment. Bundle A page 56/57 reflected the vacancy list for Brentwood ( principal post) and is dated 18 July 2024 while page 74 is dated 1 August 2024.
The fifth witness Ms Maria Wilhelmina Meyer testified that she had been employed at Brentwood for 43 years of which years was as HOD at the foundation phase. She is now on pension as she ‘’was forced to resign/retire’’ on 17 February 2022. She was admitted to a psychology hospital for 2 weeks. She received psychological and other therapy and consults a doctor ‘’every 3 months’’.
Ms Meyer testified that the incident (referred to in charge 2) occurred during a school management meeting during which the applicant insulted and humiliated her. He did not acknowledge her as HOD, broke her down and shouted at her. He told her she is a liar.
According to Ms Meyer all this occurred in front of other employees, he falsely accused her and said she has no value for him. The applicant indicted that he trusts no-one and that ‘some-one’’ is stabbing him in the back and should no longer be on the SGB. The applicant was walking around, pointed his finger at her and said ‘’ you do not like me and want me gone’’. She was ‘’shocked’’ as she always protected him and never spoke about him to other employees. She always said ‘’he will change’’ and they all prayed for him, ‘’thinking he would become better’’. The applicant got angry at her and shouted at her and then the Grade 3 teacher, Ms. Du Plessis also started fighting with her. They asked her why she did not do class visits to the Grade R classes to which she responded that she is a Grade 1 teacher and as HOD for Grades R – 3 it was difficult to do visits.
Ms Meyer stated that the applicant ‘’was very cross’’, threw things on the table, walked out of the room and slammed the door. Tania and his wife also left. She had numerous altercations with the applicant and he continuously made negative comments towards her. They worked ‘’under stress and tension and the employees were not happy’’. She ‘’really tried to understand the applicant but started stuttering’’ when she gave him information or asked something and he would say ‘’we will talk later’’.
Regarding allegation 2 Ms Meyer stated that she was on the SMT. The post occupied by the applicant’s wife was not advertised. The SMT did not meet to decide that an HOD was needed although such was needed. A meeting was held in the staff room where the applicant asked ‘’who is interested in the post’’.
The sixth witness Mr. Renier Pistorius testified that he is currently employed at Baanbreker Primary School. He had previously been at Brentwood Park but resigned due to personal clashes with the applicant. He is aware (allegation 1) that the applicant during a meeting said that ‘’we are looking at an internal HOD post’’ and his wife raised her hand. The applicant did not recuse himself.
Mr Pistorius stated that he is aware of the incident (charge 2) where the applicant said Ms. Meyer ‘’ is as confused a camel vomit in a tumble dryer’’. The applicant continuously had conflict with ‘’many employees’’ . On this day, Ms Meyer was asked to leave and the applicant said to him and Mr Erasmus ‘’wees rustig, vandag gaan die k…k spat’’. The applicant asked Ms Meyer to leave the meeting, but he then left. During the meeting the applicant was ‘’very attacking’’ towards Ms Meyer regarding the students. The applicant ‘’got abusive’’ and shouted at her ‘get out’’. She refused and said the meeting had not been finalised. The applicant then threw his diary down and walked out. He undermined Ms Meyer who ‘’stayed positive until the end until she could no longer take it’’.
In conclusion Mr Pistorius with reference to allegation 2 stated that he was part of the meeting and that the applicant was very aggressive. Relating to Charge 4, they (educators) did not pay for the petrol.

Applicant’s evidence

The applicant Mr. Dirk Jakobus Barnard testified that he is aware of the excursion (allegation 4) that was held for all the male educators, including himself. As per the Schools Act, the SGB drafted the School vehicle/transport policy ( Bundle A page 27). They used the Toyota Quantum and the reason for the excursion falls within the definition of ‘’School activity’’ (page 28). It was a team building exercise and there was no misuse as he can authorise such (page 25). The principle is the vehicle administrator as per the policy that was applicable at the time of his dismissal. The male educators made a contribution of R250,00 towards the trip and it was used for fuel, toll fees and food and the school did not pay R1000, 00. During the disciplinary hearing no invoices for the fuel were presented by the respondent. He did not use school funds for the trip.
Mr. Barnard submitted regarding allegation 2 that a SMT meeting was held on 7 December 2022 during which an argument ensued between himself and Ms Meyer. There was a discussion around trust and he asked Ms Meyer if it were true that she told the two students that they would lose their jobs. Ms Meyer got very upset and denied saying such. The two students had approached Ms du Plessis about this issue and she (du Plessis) suggested that the students be called to confirm that Ms Meyer inform them of their imminent job losses. Ms Meyer became ‘’very, very angry’’, started screaming, raise her voice and said it was not necessary to call the students. He tried to calm her down and told her ‘’if you don’t calm down I will excuse you’’ but she refused to excuse herself. He was then forced to close the meeting as it was not constructive and left. He did not storm out. He did not make the remark as alleged in the charge and did not chase Ms Meyer out. The evidence of Mr Pistorius about this remark is a lie and Ms Meyer gave no evidence about such remark. Mr Pistorius has a vendetta against him due to charges he laid against him (Bundle A page 33) for inter alia financial mismanagement/insubordination. Mr Pistorius told employees that ‘’I will get him back’.
With reference to allegation 1, Mr Barnard stated that the Schools Act allows for the appointment of an extra educator/auxiliary staff by the SGB. The post establishment of the school (annually provided by the respondent) showed for 2019 that there were 17 posts of which 3 were departmental heads. These posts were funded by the respondent. The school had 2 LSEN classes and in terms of the Schools Act, there must be a representative for the post and the SGB then followed the process to appoint an internal head. As per the Act he advised the SGB of the need for an internal HOD (after discussing such at the SMT). The SGB then agreed on the process to be followed for such appointment and the post was to be funded by the SGB. He did not appoint his wife, but she was appointed by the SGB. Mr. Kruger (chairperson of the SGB) was the chairperson of the appointment committee and he had recused himself. The process (bundle A Page 15) shows that there was an advertisement and that his wife applied. He fully explained this in his written response (Bundle B pages 12 & 13). The SGB did not object (bundle A page 9) and Mr Myburgh who was the chairperson of the meeting, did not object to the process (Bundle B pages 57-62). The appointment was authorised by the SGB and it was discussed at the SMT and then at the staff meeting. He did not misuse his position.
Mr Barnard testified that the SGB is responsible to compile a draft the budget that is then handed to the financial committee. When it the budget is finalised, the treasurer presents it to the SGB where it is discussed. Upon finalisation, it is presented to the parents at the annual general meeting. Two weeks before the meeting the budget is at the office for perusal. During the AGM the budget is discussed and parents can ask questions. The parents then accept it in terms of a resolution. The budget is then presented to the auditor and the respondent.
Section 38A is applied for annually (pages 17-20). If approved the SGB and the educator enter into an agreement. The budget includes these applications. Therefore, he is not guilty of allegation 1. He did not create a post and did not appoint his wife.
With reference to charge 5, Mr Barnard stated that towards the end of December 2022, the SGB meeting was held on line, which is not allowed in terms of the Constitution as it has to be a physical meeting. Therefore, the decisions taken are not correct, was not ratified and there are no minutes. As per the Schools Act, he represents the respondent on the SGB and advises them on management/governing issues. There was no process followed and educators were not informed. The payment process requires a requisition, signing off by himself and the treasurer whereafter the payment is loaded on the bank account. Two people authorise the payment and 4 people, himself, FO, the treasurer and the chairperson of the SGB sign on the bank account. Only after all 4 have signed, the payment is made. He did not instruct Ms Kloppers to pay but he requested her (bundle B page 76 par 3) to add the three payments on the payroll as he believed it was authorised by the circuit manager and due to the illegal process followed by the SGB to stop the payment ( which was allowed for in the budget).
In conclusion Mr Barnard stated that the outcome of the hearing was on 14 June ( Bundle A page 64) and the appeal outcome was on 1 August but on 5 June, the respondent already advertised his post. His dismissal was unfair, and he is not guilty of any of the allegations.
On behalf of the applicant Ms Tania du Plessis testified that she had been a member of the SGB from 2009 – 2013 and from 2017 – 2023. She is currently in a departmental post but had been the internal HOD for the pre-primary and after care centre. She was a witness during the hearing of the applicant.
Regarding allegation 4 Ms du Plessis stated that during her time at the school, there were separate excursions for males and females at the school. At the time she was at the school, her son was an educator there and he attended the excursion mentioned in allegation 4. Due to this she is aware that the costs for the trip (food, snacks, fuel etc) was calculated and divided between the educators who paid their contribution into a kitty. She ‘’does not know’’ if the school paid for the fuel. She was informed by her son that each person contributed R250, 00.
According to Ms du Plessis a SMT meeting was held on 7 December 2022 where one of the issues discussed by the applicant was trust/loyalty that had been a big issue. Issues that were discussed during SMT meetings were leaked to employees before such could be discussed with them during staff meetings. One such incident involved Ms Meyer who informed students of budget cuts and that they might lose their jobs. She is aware of this as one of her students approached her and informed her of what they were told by Ms Meyer. She also said this during the meeting.
It was submitted that when the applicant mentioned this incident during the meeting, there was a ‘’heated’’ discussion between him and Ms Meyer. The applicant wanted to call the students but Ms Meyer ‘’got highly upset, became irrational, talked loudly and lost it’’. The applicant tried to calm her down but she continued being upset and denied talking to the students. The applicant then said ‘’if you do no calm down it would be better if you leave’’. Ms. Meyer then continued screaming and the applicant said ‘’ we will not resolve anything’’ closed the meeting and left.
Ms du Plessis (regarding allegation 2) stated that the applicant did not say the words as claimed and was not negative of derogative towards Ms. Meyer. She cannot recall any incident when she was present where the applicant belittled Ms Meyer and they always had a good relationship to such extent that Ms Meyer would discuss private issue with him. The applicant was strict but it was not his nature to be abusive.
With reference to allegation 1, Ms du Plessis stated that if the school identifies the need for an extra post, the SGB can identify the area of need and decide to approve an internal post. Such is then paid by the SGB or if a departmental post, the SGB can pay a top-up by way of section 38A that had to be applied for and approved by the department. The principal is responsible for the professional management of the school and is responsible for identifying areas of need. During a daily morning staff meeting, the employees became aware that there is an internal HOD post for learner welfare, when the applicant announced such. He indicated that those who are interested in such can approach him after the meeting. Only Hanlie Barnard ( his wife) was interested.
According to Ms du Plessis, the chairperson of the SGB at this stage was Mr. Kruger. On 28 May 2019 during a SGB meeting, the applicant had informed the SGB of the need for an internal HOD, the SGB asked him questions, there was a discussion and it was then approved. Mr Kruger was still the chairperson and had not yet handed over to Mr. McCloud and he (Kruger) was thus the chairperson of the interview committee and the SGB appointed Mrs Barnard.
In conclusion Ms du Plessis testified with regards to allegation 5 that she also received section 38A payment for additional work. Such application is made by the SGB to the department and eventually a contract is signed between the SGB and the educator ( Bundle A page 38). The contract (page 61) shows the process to be followed if this payment is to be stopped. The SGB cannot decide to stop such payments. She attended all SGB meetings and there were continuous discussions but no final decision was made as per the constitution or meeting policy. A teams meeting was held and Mr Myburgh presented seven scenarios but she cannot recall a final decision been made. Mr Myburgh was told that any decision must be ratified during a face to face meeting as per the constitution. If this was not done, the decision was unlawful due to the constitution not allowing for virtual meetings. The payment of her section 38A was stopped by the SGB who had failed to follow the process as set out (page 61)

Analysis of evidence and Arguments

Section 192(1] of the Labour Relations Act 66 of 1995 as amended (LRA) places the onus on an applicant to establish the existence of the dismissal, which in this matter was common cause as was the procedural fairness thereof.
Section 192(2) requires that the respondent must prove that the dismissal was substantively fair.
The LRA, in schedule 8, sets out the guidelines for a fair dismissal. Item 7 specifically refers to misconduct and states as follows:

“Any person who is determining whether a dismissal for misconduct is unfair should consider –

(a) Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and

(b) if a rule or standard was contravened whether or not-

(i) the rule was a valid or reasonable rule or standard;

(ii) the employee was aware, or could reasonably be expected to have been aware of the rule or standard;

(iii)] the rule or standard has been consistently applied by the employer and;

(iv) dismissal was an appropriate sanction for the contravention of the rule or standard. “

The applicant was charged in terms of section 18 (1) (e) and (g) of the Employment of Educators, Act 76 of 1998 as amended,( the EEA) with 5 counts of misconduct but only found guilty of 4 (charges 1,2,4 & 5).
The existence of the rule/s as contained in the Act was not disputed by the applicant. The only substantive issue thus to be dealt with is that contained in item 8(7) (a) as he claimed he was not guilty of any misconduct. The remainder of the substantive issues (item 8(7) (b) (i – iv) were not placed in dispute.
The respondent thus had to prove, on a preponderance of probabilities that the workplace rules were contravened.
The charges will be dealt with separately. This matter was heard over five full days with protracted evidence presented by the witnesses of both parties. As can be expected this led to equally exhaustive cross-examination of each of the witnesses.
Allegation 1 relates to the allegation that on 19 July 2019 or anytime incidental thereto as Principal at Brentwood Primary School, he misused his position in that he created an internal HOD post for learner support for the school without following recruitment procedures and/or authorisation from the SGB whilst knowing or ought to have known that such is wrong’’
The evidence to prove this charge is quite perplexing. The applicant was charged with misusing his position to create an internal HOD post without following recruitment procedures and/or authorisation from the SGB.
Yet, the respondent’s first witness Mr. Myburgh who had been involved with the SGB since 2019 to date in various capacities (co-opted with no voting rights, treasurer and chairperson) submitted that he received the minutes of an SGB meeting (he was not present) and one of the issues reflected was that the applicant indicated the need for the appointment of an internal HOD for School Based Support (SBST). He testified that the applicant indicated that the remuneration for such position would be between R1500, 00 – R2000, 00 per month which was approved and that his wife ( Hanlie Barnard) was the only person who indicated interested in the position. At the SGB meeting held on 25 August 2020 the remuneration was raised to R4917, 00 per month. These contentions were supported with reference to Bundle B (pages 33,34,72).
This evidence does no reflect that he applicant misused his position and created an internal HOD post without authorization from the SGB.
Mr. Myburgh further submitted that upon investigation this matter he found that Mrs Barnard’s increased remuneration was paid from the section 38 A monies. This evidence is also perplexing as the raise was agreed to by the SGB as per the minutes testified to by Mr. Myburgh.
With regard to the process in appointing Mrs Barnard, Mr. Myburgh testified that the process followed regarding her appointment was that during a meeting in the staffroom, the applicant indicated that there was a new internal HOD post and that those who are interested can apply. Mrs Barnard was then the only one who raised her hand. This process was not correct as recruitment at the school for SGB positions are done in terms of the recruitment policy. This policy was not provided. During cross-examination Mr. Myburgh was questioned regarding the existence of such policy and he conceded that such does not exist but ‘’that it is practise’’.
The evidence of Ms Bruyns, who is the deputy director: transversal HR Services regarding charge 1, was done in general terms and she stated that if there exists a vacant post at a school, the principal and SGB can advise the department thereof and inform the department of the requirements for the post. If there is a SGB post, the SGB has it’s own recruitment committee. She stated that the applicant ‘’could not have acted in such manner and that the SGB decides on vacancies’’
The evidence of Mr. Myburgh was that the SGB had approved this post and its concomitant remuneration.
Ms Bruyns stated that she was not aware of a HOD post for learner support services and the school is not an eksen school and in the event of a vacancy cool the SGB must act fairly towards everyone, have criteria and all employees must be allowed to apply. This evidence was not given any body. She also in broad terms stated that if the applicant’s wife applied, he should have recused himself from the process and that no process was followed regarding the appointment. It is not clear why Ms. Bruyns rendered this evidence as it was not supported in any way. She also merely stated that the salary was agreed to by the SGB (R1500, 00 – R2000, 00) but was higher after the appointment. The latte was common causer and Mr. Myburgh testified that such was approved by the SGB.
When Mr Myburgh was cross-examined he was asked if a principal can request the SGB to create an internal post and he stated that he ‘’may request it’’ and added upon further questioning that ‘’the problem was the process’’. Upon further questioning in this regard, he conceded that the employees who were informed of the position during a staff meeting, could all apply. Mr. Myburgh later during cross-examination stated that the applicant appointed Mrs Barnard and after vigorous cross-examination regarding the ratification of the post, Mr. Myburgh stated that he ‘’cannot recall if questions were asked during the ratification as it was 6 years ago’’ and later when it was put to him that the SGB indeed ratified the post stated that ‘’we were new, we accepted the principal acted in the best interests of the school, we had no reason to doubt him’’ and ‘’the issue arose later when we realised he acted against the process’’ .
The disciplinary process commenced during 2023 when the alleged misconduct related to 2019/2020. Such ties in with the appointment of another SGB/Chairperson of the SGB as those who were members/chairperson of the SGB during the appointment and strangely smells like a vendetta/war between ‘’old’’ and ‘’new’’.
The evidence presented on behalf of the respondent did not convince that the applicant misused his position and created an internal HOD post. The charge stated that such was done
“without following recruitment procedures and/or authorisation from the SGB’’.
The respondent’s evidence shows that the SGB approved the creation of the post and ratified such. The witness conceded that all educators were made aware of the post and could have applied. It was pointed out that that not only was no recruitment process/procedure/policy submitted but Mr Myburgh (despite evidence in chief that the applicant contravened such process) conceded during cross-examination that no such process/procedure/policy. The vague and generalised evidence of Ms Bruyns also did not further the respondent’s case in this regard.
The evidence of the applicant ( as confirmed by his witness Ms du Plessis) ties in with those rendered on behalf of the respondent, namely that the applicant announced the position during a staff meeting, that all could apply and that the only interested person was Mrs. Barnard.
The respondent’s witness made a big issue of the initial remuneration to be paid to Mrs. Barnard and the increase thereof. Not only did Mr. Myburgh testify that the SGB granted approval in both instances this contention did not form part of the charge.
Based on the evidence, the applicant is not guilty of charge 1.
Allegation 2 relates to allegations that on or around 20 November 2022 or any time incidental thereto the applicant ‘’displayed disrespect or demonstrated abusive language or insolent behaviour towards his subordinate Ms Meyer in front of other employees by saying that she is as messed up as camel vomit in a tumble dryer and that she does not know if it is a Tuesday or a Wednesday and finally chased her away from the meeting whilst knowing/should have known it was wrong to do so’’
Ms Meyer proved to be a highly confused witness who was amongst others not clear on dates. She rendered an exhaustive explanation of the conduct she allegedly suffered from by the applicant but all in vague and generalised terms. She did not testify that the applicant said to that she ‘’is as messed up as camel vomit in a tumble dryer and that she does not know if it is a Tuesday or a Wednesday’’. This evidence was rendered by Mr. Pistorius.
This charge was linked to a specific date and event ( SMT meeting on 20 November 2022) and specific words used. One should expect the person who allegedly suffered this verbal abuse on this day, to remember the specifics thereof. It also turns out that the meeting referred to was held on 7 December 2022 thus rendering the date in the allegation incorrect.
The evidence of Ms Meyer was that during the meeting the applicant insulted and humiliated her, did not acknowledge her as HOD, broke her down and shouted at her and told her she is a liar. He also falsely accused her and said she has no value for him. She stated that the applicant was walking around, pointed his finger at her and said ‘’ you do not like me and want me gone’’. She stated that the applicant ‘’was very cross’’, threw things on the table, walked out of the room and slammed the door. There is nothing in this version by Ms Meyer that she was ‘’chased away’’ from the meeting as claimed in the charge. Only when questioned during cross-examination did she state that she was asked to leave the meeting.
Mr Pistorius once again stated that the applicant shouted at Ms Meyer ‘get out’’ but that she refused and said the meeting had not been finalised. The applicant then threw his diary down and walked out.
The evidence of Ms Meyer does not reflect that she ‘’was chased away’’ and contradicts that of Mr. Pistorius who claimed she was told to ‘’get out’’.
During the cross-examination of Ms. Meyer, the confusion continues. It was put to her that during the hearing the date of incident, 20 November 2022 (and claimed in the charge) was changed to 7 December 2022. To this Ms Meyer responded ‘’I am not sure’ and confirmed that there was no incident during a SMT meeting on the date stated (20 November 2022).
The crux of the version of the applicant and his witness regarding this meeting was firstly that the alleged words were not used and that Ms Meyer was not chased out of the meeting. It was testified that Ms Meyer became quite emotional during the meeting, screaming ’got highly upset, became irrational, talked loud and lost it’’ and ultimately when she was asked to calm down, refused to do so, upon which the applicant indicated that the meeting was not constructive and left. Both witnesses were taken to task regarding their respective versions during cross-examination, but such bore no fruit. Both witnesses confirmed their versions regarding what occurred during the meeting and did not contradict one another.
The respondent failed to prove allegation 2 and as such the applicant is not guilty thereof.
Allegation 4 relates to misuse of his position and it was claimed that between 2022 and the beginning of 2023 the applicant authorised an excursion for only male educators at a bush farm around Modimolle that was not job related and costed the school an amount of R1000. 00 whilst knowing/ought to have known that such was wrong.
It was common cause that this excursion involving male educators to a bush farm to Modimolle took place. It needs to be determined then if such was job related and costed the school R1000, 00 as claimed in the latter part of the charge.
Mr. Myburgh testified that the SGB is responsible for the assets of the school. He submitted that he heard ‘’a rumour’’ that the school bus was used ‘’for holiday trips’’ but did not act at that stage as he was not involved at the school. however, during February 2021 he realised that the schools trailer was not at the shed but under a tree and when he asked the applicant this he said ‘’I don’t know’ why’ and found out later it was used for a ‘’manne naweek’’ and that ‘’some parents were asked for food and alcohol donations’’. According to Mr. Myburgh he then asked Mr. Mcloud if he was aware of this weekend and/or if such was approved by the SGB and was told ‘no’’. School property cannot be used without permission.
This evidence is vague and for a large part amounts to hearsay. Mr. Myburgh testified that he heard ‘’a rumour’’ regarding the use of the school bus for holiday trips. He did not explain where he heard the rumour (that by its very nature is hearsay) who told him that nor was any witness/es called to substantiate this evidence. The evidence that he ‘’found out later’’ about the trip, was also not properly explained, although the trip was common cause.
Mr. Myburgh contented that he was told by Mr. McCloud that the SGB did not approve the trip, was also not corroborated as Mr. McCloud did not testify. There was also no corroboration from witnesses that parents were asked for food and alcohol donations’’.
Ms. Klopper testified that she is aware of the trip and that the school paid for the fuel. This was not authorised beforehand and was given the receipts afterwards. No such receipts were submitted. Mr. Pistorius, who was part of the trip contented that they (educators) did not pay for the trip.
During cross-examination Mr. Pistorius conceded that the 8 educators who partook in the trip each paid between R100, 00 and R200, 00 which was given to him to buy ingredients for a ‘’biltong potjie’’. It was put to him that the money was used for food and fuel and he stated that ‘’we did not put petrol in’’
The applicant (and his witness, Ms du Plessis) stated that the costs for the trip was calculated and divided between the educators and then placed in a kitty. Ms du Plessis stated that she was aware of such as her son, an educator at the school, confirmed this and indicated that they each paid an amount of R250, 00. This evidence ( although hearsay) ties in to the concession made by Mr. Pistorius that each educator paid a certain amount towards the trip.
There is no proof that the school paid R1000, 00 for fuel and in the absence of documentary proof to support the contention, it is probable that the monies paid by the educators into a kitty was also used for fuel. Mr Myburgh during cross-examination stated that the vehicle was filled with fuel to the amount of R963, 00 and that he ‘’does not know why the charge says R1000, 00’’. He admitted that no such receipt was contained in the bundle.
The last issue to be determined regarding this charge revolves around the claim that it ‘’was not job related’’. As already stated the evidence of Mr. Pistorius that the SGB did not authorise such, was not supported as Mr McCloud did not testify.
The applicant stated that as per the Schools Act, the SGB drafted the School vehicle/transport policy and that the Toyota Quantum used for the excursion and the reason for the excursion falls within the definition of ‘’School activity’’. He submitted that it was a team building exercise and there was no misuse as he can authorise such. The principle is the vehicle administrator as per the policy that was applicable at the time of his dismissal.
I had regard to said policy and it is clear that the applicant, as principal was the vehicle administrator. Did the excursion fall with the definition of ‘’school activity” and can it be authorised by the principal?. It was contented on behalf of the respondent that the policy and the definition only apply to learners.
The policy is in Afrikaans (the arbitration was conducted mostly in Afrikaans with an interpreter present to assist Mr Nkosi where needed with an English translation). The definition of ‘’skoolaktiwiteit’’ ’’ beteken enige amptelike opvoedkundige, kulturele, ontspannings of sosiale aktiwiteit van die skool op of weg van die skool’’
At first glance it appears that trips for educators can fall within this definition. However, a careful reading of the policy indicates that such ‘’school activity’’ relates to transport of learners ( paragraph 3.1.1, 3.1.2 and 3.1.3). In the introduction to the policy (paragraph 1) the following is stated ‘’ Hierdie beleid beskryf die prosedure was gevolg moet word vir die gebruik van skoolvoertuie, sowel as die vervoer van leerders en/of toerusting met behulp van skool of privaat voertuie’’.
Paragraph 4(1)(d) further stipulates that ‘’ werknemers sal die amptelike voertuie slegs vir gemagtige doeleindes in die uitvoering van hulle amptelike pligte gebruik’’. Annexure A to the policy also refers to the details to be given regarding any school activity undertaken by learners.
I am thus not convinced by the applicant’s evidence that the trip was an authorised one as per the vehicle policy. It seems that it had to be authorised by the SGB as this was the gist of Mr. Pistorius’s evidence. As stated however, his evidence that no such authorisation was given by the SGB, was hearsay, as Mr. McCloud who allegedly informed his of such, was not called to testify to this.
During cross-examination, Mr Myburgh was asked about the claim that the applicant ‘’misused’’ his position. He responded by saying ‘I can honestly not talk of the charge. I might not use that wording. I do not know why the department used that wording’’.
The applicant’s finding of not guilty on this charge is based on the failure of the respondent to prove that such was not authorised by the SGB/not job related and that the school paid an amount of R1000, 00 towards fuel.
Allegation 5 relates to misuse of his position in that on January 2023 or anytime incidental thereto the applicant instructed the finance administrator to pay him R10,2500.00, to pay Mr Erasmus R2650,00, to pay Mr Pistorius R3625.22 in terms of section 38A of SASA without authorisation to do so whilst knowing/ought to have known it was wrong.
The facts are largely common cause as the applicant indeed gave this instruction (although he termed it as a request). It is also common cause that such payments related to section 38A and were ultimately not made. It was also not disputed that the SGB indeed decided to stop the section 38A payments.
The bone of contention revolves around the applicant’s claim that the SGB could not give an instruction to stop the payment of section 38A as this decision was taken during an online meeting, which was not authorized by the constitution of the SGB.
The evidence of the applicant was that towards the end of December 2022, the SGB meeting was held on line, which is not allowed in terms of the Constitution as it has to be a physical meeting. He submitted that the decisions taken are not correct, was not ratified and there are no minutes. As per the Schools Act, he represents the respondent on the SGB and advises them on management/governing issues. According to the applicant there was no process followed and educators were not informed. He further testified that he did not instruct Ms Kloppers to pay but he requested her to add the three payments on the payroll as he believed it was authorised by the circuit manager and due to the illegal process followed by the SGB to stop the payment ( which was allowed for in the budget).
In contrast to the evidence of the applicant, Ms du Plessis submitted that the SGB cannot decide to stop such payments. She stated that she attended all SGB meetings and there were continuous discussions but no final decision was made as per the constitution or meeting policy. A teams meeting was held and Mr Myburgh presented seven scenarios but she cannot recall a final decision been made. Mr Myburgh was told that any decision must be ratified during a face to face meeting as per the constitution. If this was not done, the decision was unlawful due to the constitution not allowing for virtual meetings.
Not only is the evidence of Ms du Plessis in total contrast to that of the applicant as she ‘’could not recall’’ if the section 38A payments were indeed stopped by the SGB to that of the applicant who admitted it was stopped by the SGB but that he regarded such as ‘’illegal’’ due to the online meeting process.
The evidence of Ms du Plessis that Mr Myburgh was informed that the decision must be ratified during a face to face meeting was not supported by way of documents such as minutes of the meeting. The famed constitution that allegedly only provided for face to face meetings was also not properly submitted and the unsigned copy I received at my request only for clarification following the applicant’s evidence does not support his version ( even if properly submitted).
Ms du Plessis also contradicted her own evidence in that she claimed to not recall an SGB decision to stop the section 38A payments but then spend a considerable amount of time explaining that Mr Myburgh was informed that the decision must be ratified due to the on line meeting. As stated this evidence was not supported. Ms du Plessis then also in considerable detail (with reference to a Section 38A contract) lamented the decision of the SGB to stop the payment of her section 38A payment who had failed to follow the process as set out in the contract.
The applicant was charged with misuse of his position in that he instructed the finance administrator to make section 38A payment to himself and others without authorisation to do so whilst knowing/ought to have known it was wrong.
As already stated it was common cause that the applicant gave this instruction/request to the financial administrator to effect section 38A payments to himself and others and that such payments were not done. It was also common cause that such was due to the decision of the SGB not to effect these payments.
I find the applicant’s playing with words ‘requested as opposed to instructed’’ quite arrogant and dismissive of the seriousness of the charge laid at his door.
I also find his evidence that such instruction/decision of the SGB was ‘’illegal’’ opportunistic, especially in view of the fact that there was no supporting evidence to show that all meetings must be face to face and if virtual all decisions would be ‘’illegal’’.
The evidence of the applicant and his witness, Ms. Du Plessis is contradictory and as also pointed out, she contradicted herself.
In view of the above, the version presented by and on behalf of the applicant is rejected. The version presented on behalf of the respondent thus proved this charge and the applicant is accordingly found guilty thereof.
In Sidumo v Rustenburg Platinum Mines Ltd & Others (2007) 28 ILJ 2405 (CC) the court stated as follows in paragraphs 78 & 79:
In approaching the dismissal dispute impartially, a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long service record. This is not an exhaustive list.

(79) To sum up. ’In terms of the LRA a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision, a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances’’.

In Department of Home Affairs and another v Ndlovu and others (2014) ILJ 3340 (LAC) it was held that in order to proof that the sanction of dismissal was appropriate the employer must present evidence to prove the breakdown in the employment relationship. Such evidence is not necessary where the breakdown is apparent from the nature of the offence and or the circumstances.
The applicant was charged with contravening sections 18(1) (e) and (g) of the Employment of Educators Act (EEA). He was found guilty of allegation 5 that relates to section 18(1)(g)
Section 18(1) (g) deals with the misuse of position.
The applicant was found guilty of misuse of his position in that he instructed the finance administrator to make section 38A payments to himself and others without authorisation to do so whilst knowing/ought to have known it was wrong.
This conduct falls within the ambit of section 18(1)(g)
The applicant, an educator for more than three decades of which almost one decade was as Principal, had a duty to act in the best interest of the respondent and Laerskool Brentwood Park, which consisted of its learners, educators and parents.
His attempt to have monies paid to himself and others, is self-serving and his explanation for such ‘’request’’ borders on dishonesty (I am alive to the fact that he was not charged with dishonesty).
As senior educator and Principal the conduct expected from the applicant must be above reproach. His conduct was in direct defiance of a decision of the SGB, a body that is entrusted with governing the school to its best ability. The applicant as Principal is ex officio part of the SGB and represents the interests of the department, his employer. His conduct is in direct conflict with his role, duties and responsibilities owed to the department and the school that he was entrusted to run.
The applicant failed to comply with a decision taken by the SGB of which he was fully aware, but claimed was ‘’illegal’’, in an attempt to excuse himself and justify his conduct. He showed no remorse for his actions but continued with his unsubstantiated claim that the instruction was illegal as it was taken during an on line meeting that was not permitted for in the constitution of the SGB. His own witness, as pointed out, did not further his case.
His explanation for his defiance of a clear decision taken by the SGB ( as stated already) borders on dishonest and deceitful and is indeed misuse of his position as Principal.
The importance of rules in the workplaces regulating conduct to ensure that those in positions of power, do not misuse their positions speaks for itself. It would create an intolerable and untenable situation if a Principal can use his position and the powers associated with such, to his own benefit and at his own whim and in defiance of decisions taken by the SGB. A principal is responsible for the professional governance of a school and such conduct would defeat such duty. The SGB of a school (of which the Principal is an ex-officio member and the respondent’s representative) , has to govern such to the best of its ability. The decision not to pay section 38A allowance was based on the dire financial position of the school due to the COVID pandemic. The applicant’s defiance of the SGB decision could have enriched him and others and further financially prejudiced the school.
The applicant as an educator for 30 years of which about 10 years was as Principal by the misuse of his position, destroyed the trust relationship to such extent that a continued employment relationship is not possible.
In considering the totality of circumstance and the quoted cases it is my view that the applicant is guilty of the charge levelled against him and I am satisfied that the sanction of dismissal was appropriate.