Commissioner: Ncumisa Bantwini
Date of Award: 15 March 2023

In the ARBITRATION between

SADTU obo Nonkululeko Dyantyi
(Union/Applicant)

And

Department of Education-Eastern Cape
(Respondent)

DETAILS OF HEARING AND REPRESENTATION

1. This case was scheduled for arbitration on 08 to 09 March 2023. It came before the ELRC in terms of Section 191 (1) 191 (5)(a) of the Labour Relations Act 66 of 1995 as amended (the LRA) for an alleged claim of dismissal for allegations of misconduct.

2. It was heard at the offices of the Offices of the Department of Education: Eastern Cape in East London. The SADTU official Mr Siyabonga Gashi appeared for the applicant, Mrs. Nonkululeko Dyantyi who was also in attendance. There was no appearance for and on behalf of the respondent, the Department of Education-Eastern Cape. File records indicate that the respondent was notified by the following emails: thando.makina@ecdoe.gov.za;andile.mtirara@ecdoe.gov.za;sihle.mnguni@ecdoe.gov.za; toto.tsheko68@gmail.com, lwando.jevu@ecdoe.gov.za; walter.hena@ecdoe.gov.za.

3. I proceeded with the arbitration in terms of Section 138(5) (b) of the LRA in the absence of the respondent after Ms. Annelie Brand, recused herself from the proceedings. Before the commencement of the proceedings, Ms. Brand requested postponement on 08 March 2023. Reasons for postponement request were that Mr Jevu, the official who is dealing with the case is on the national strike action but could not explain as to why other officials, Messrs. Tsheko and Hena could not avail themselves for the arbitration proceedings as the matter was not partly heard.

4. The applicant’s representative objected to the matter being postponed due to the fact that the applicant has been without a salary since June 2022 and that the matter has been postponed at the request of the respondent on a number of occasions viz 17 November 2022, 16 January 2023, 02 March 2023 owing to ill health of the Labour relations officials with no sick note being furnished as proof. My extempore ruling was to refuse postponement and to proceed with the arbitration as no sick note was submitted even on 08 March 2023 while the reason articulated about Mr Hena was that he was sick.

5. Ms. Brand was afforded an opportunity to consult again with her superiors before the commencement of the proceedings and she came back stating that the respondent will not be represented and she recused herself.

6. Section 138 (5) of the LRA provides;
• (5)”If a party to the dispute fails to appear in person or to be represented at the arbitration proceedings, and that party_
(a)………..
(b) had not referred the dispute to the Commission, the commissioner may_
(1) continue with the arbitration proceedings in the absence of that party; or
(11) Adjourn the arbitration proceedings to a later date.”

ISSUE TO BE DECIDED

7. The issue to be decided is whether the applicant’s dismissal was procedurally and substantively fair or not.

BACKGROUND TO THE DISPUTE

Employee’s evidence
8. According to Mr Gashi’s opening statement, the applicant was dismissed after there were allegations of group copying of learners at Hoho Senior Secondary school in 2019 in IsiXhosa paper3 examination room. Investigations were conducted and were finalized in 2020.

9. The applicant was initially charged for group copying in respect of IsiXhosa paper 3 but the charges were amended on 19 August 2019 to group copying in respect of Maths Literacy paper 1 on 19 August 2021.

10. The employee was suspended on 08 January 2020 and the disciplinary hearing was heard on 03 September 2021 and was dismissed on 02 June 2022. She was found guilty of charge 2 which reads:

11. You are charged with misconduct in terms of section18 (1) (f) of the Employment of Educators Act 76 of 1998, as amended in that you unjustifiable prejudiced the administration, discipline or efficiency of the Department of Education, an office of the State or school, further education and education institution or adult learning center, in that on or about October/November 2019:

• You explained instructions and given clue to learners for them to be able to respond on Maths Lit Paper.

• Furthermore, it is alleged that there is a culture of assisting learners by teachers and you are an organizer of such.

• You came into the examination class with script notes and distributed them to candidates in front of 2 invigilators, Ms. Mbatha and Ms. Finca who were invigilating (Life Science, Mathematics, and Mathematical Literacy) and on the day of writing Maths P1 and Life Science you called Ms. Mohammed and instructed her to give answers for learners. She then complied by preparing script notes for some questions and delivered them to one of the candidates to distribute to others and later on you collected script notes after candidates had completed.

12. The employee is challenging inconsistency of the employer’s application of its discipline as Ms. Mohammed who was also charged with the same allegations was issued with a written warning and suspension without pay for 1 month. In 2013 the group copying cases in Ngcobo and Libode districts, Mr Dywanisi was issued with a written warning and 1-month suspension without pay while Mr Kalazana was ordered to pay a fine R5000.00. The applicant seeks retrospective reinstatement as a remedy.

13. Mrs. Nonkululeko Dyantyi the applicant, testified as follows:
14. She was employed by the respondent as a Post Level 1 Educator on 16 March 1992, earning R385 755 per annum at the time of dismissal. She was dismissed on 02 June 2022 after a disciplinary hearing was conducted.

15. The applicant was charged as follows:
• “You are charged with misconduct in terms of section18 (1) (f) of the Employment of Educators Act 76 of 1998, as amended in that you unjustifiable prejudiced the administration, discipline or efficiency of the Department of Education, an office of the State or school, further education and education institution or adult learning center, in that on or about October/November 2019:

• You explained instructions and given clue to learners for them to be able to respond on Maths Lit Paper 1

• Furthermore, it is alleged that there is a culture of assisting learners by teachers and you are and organizer of such

• You came into the examination class with script notes and distributed them to candidates in front of 2 invigilators, Ms. Mbatha and Ms. Finca who were invigilating (Life Science, Mathematics, and Mathematical Literacy) and on the day of writing Maths P1 and Life Science you called Ms. Mohammed and instructed her to give answers for learners. She then complied by preparing script notes for some questions and delivered them to one of the candidates to distribute to others and later on you collected script notes after candidates had completed”.

16. She was found guilty of the above charge by the chairperson. She teaches Maths Literacy in grades 10, 11 and 12 at Hoho High school. The employee testified that she disputes charges against her as she never explained anything to learners and further disputed that she is an organizer of copying, and knows nothing about the school having a culture of copying.

17. The employee stated further that Mbatha and Malambile were invigilating Maths Literacy paper 1 and that she was not invigilating Maths Literacy on the day in question. Ms. Mohammed according to the applicant’s further evidence was issued with the same charges by the respondent but she was never dismissed, instead she was issued with a written warning and a suspension without pay for 1 month. This means that the respondent was unfair as it applied its discipline inconsistently. The dismissal as per the applicant’s submission was unfair and she seeks retrospective reinstatement as a remedy.

18. The applicant’s witness Mr Luyanda Mankabane testified as follows:

19. He works for the Department of Education -Eastern Cape as a Principal and he was based at Hoho High School when the applicant was charged and dismissed. He was the Chief Invigilator for all the subjects with the exception of History and IsiXhosa during the examination period. He only heard about the allegations of group copying of IsiXhosa during the marking of examination papers when he was phoned by the respondent.

20. He knows the applicant as one of the Teachers at Hoho High School and is aware of the allegations which led to her dismissal. The procedure followed when there is group copying is that the Invigilator takes all the material that is being used by the learners and give the learners new writing pads, notifies the Chief Invigilator about the issue and submits all the material to him/her (Chief Invigilator).

21. An irregularity form that is completed and signed by both the Invigilator and Chief Invigilator is submitted with other batch of papers to the examination office. These steps were never followed and he was never notified about copying in his school in any of the examination rooms. He has no knowledge of copying culture in Hoho School.

22. Subsequent to the call from the marking center, he was suspended together with the applicant and Ms. Mohammed. Ms. Mohammed was issued with a written warning and one-month suspension without pay as a sanction. After the disciplinary hearing was conducted, no sanction was ever issued to him, instead he was instructed to report for duties on 14 January 2022. The applicant was the only official who was dismissed and this is unfair.

23. In closing, Mr Gashi argued as follows:

24. It is not in dispute that Maths Literacy was written on 20 October 2019 but the applicant was never one of Maths Literacy Invigilators. After the sanction of dismissal was issued by the chairperson, the applicant filed an appeal but the sanction of dismissal was upheld on 02 June 2022.

25. The applicant’s dismissal was unfair as the respondent did not prove the allegations against her. The respondent applied the sanction of dismissal inconsistently as other employees who were charged with allegations of group copying were dismissed e.g Ms. Mohammed was issued with 1 month suspension without pay, Mr Mankabane (the witness), no sanction Mr Kalazana, a Principal of Mgudlwa Senior Secondary School was ordered to pay R5000,00 while the applicant was dismissed.

26. The sanction of dismissal was not an appropriate sanction in the circumstances. The respondent did not lead evidence to indicate that the relationship was destroyed during the disciplinary hearing. The applicant seeks retrospective reinstatement as a remedy.
ANALYSIS OF EVIDENCE AND ARGUMENTS.

27. Item 4 of the Code of Good Practice sets out guidelines to follow when an employer intends to dismiss an employee. The applicant, Mrs. Nonkululeko Dyantyi disputed the allegations against her and she testified that she never gave clues to leaners and never distributed script notes to learners and was not even involved in invigilating Maths Literacy.

28. The applicant disputed knowledge of copying culture in Hoho High School. This evidence was corroborated by Mr Mankabane, her witness. She seeks retrospective reinstatement as a remedy.

29. With regards to inconsistency challenge, the respondent was absent to justify the difference between the 4 employees who were charged for group copying and the applicant and nothing is stipulated in her dismissal letter.

30. In Consani v Engineering (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others, (2004) 25 ILJ 1707 (LC), on paragraph 19 the court held as follows;

• “… An inconsistency challenge will fail where the employer is able to differentiate between employees who have committed similar transgressions on the basis of inter alia differences in personal circumstances, the severity of the misconduct or on the basis of other material factors.”

31. No plausible reason or justification for the different treatment between the 4 employees and Mrs. Dyantyi is indicated in her dismissal letter.

32. In NUM and Another v Amcoal Colliery t/a Amot Colliery and another [2000] 8 BLLR (LAC), in determining the fairness of the dismissal the court said the following:

“The parity principle was designed to prevent unjustified selective punishment or dismissal and to ensure that like cases are treated alike…”.

33. The relationship between the employee and employer has not been broken, or was never substantiated that it has.
34. Schedule 8 item 3 (6) provides;

“(6) The employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between the two or more employees who participate in the misconduct under consideration.”

35. The applicant has discharged onus to prove that the respondent was induced by improper motives or acted capriciously when other employees were issued with written warnings, ordered to pay R5000.00 and suspended for 1 month without pay while she (the applicant) was dismissed. The respondent had no objective and fair reason for imposing different sanctions for misconduct arising from the same offence. I am saying this bearing in mind that inconsistency is not a rule on its own.

36. In view of the above evidence, it appears that there was no fair reason for the employer to dismiss the employee.

37. The burden of the employer to prove that the employee had committed an offence and that her dismissal was appropriate could not be discharged fairly and I have no reason to doubt the employee’s version. This in my view, renders the dismissal of the employee substantively unfair.

38. In terms of section 188 of the LRA, an employer must have a valid reason and must follow a fair procedure before dismissing the employee failing which, a dismissal will be considered as substantively and or procedurally unfair. It is therefore my considered view that the dismissal of the applicant was procedurally fair but substantively unfair.

39. Section 193 of the LRA provides that if the Labour Court or an arbitrator appointed in terms of the Act finds that a dismissal is unfair, the Court or arbitrator may-

Order the employer to reinstate the employee from the date not earlier than the date of dismissal,
• Order the employer to re-employ the employee, either in the work in which the employee was employed before the dismissal/or in other reasonably suitable work on any terms and from any date not earlier than the date of dismissal, or
Order the employer to pay compensation to the employee.

40. On the basis of the above evidence, I find no reason not to reinstate the applicant as it is the remedy sought by her.

RELIEF

41. I order the respondent, the Department of Education—Eastern Cape to re-instate the applicant, Mrs. Nonkululeko Dyantyi and pay 9 months’ salary as back pay amounting to R289 316.25 calculated as R32 146.25 per month x 9 months’ salary. The 9 months’ salary ordered is for loss of earnings due to the fact that the applicant ‘s dismissal was substantively unfair. It must be noted that the applicant has been without a salary for a period of 9 months.

42. I therefore make the following award:

AWARD

43. The dismissal of the applicant, Mrs. Nonkululeko Dyantyi by the respondent, the Department of Education-Eastern Cape, was procedurally fair but substantively unfair.

44. I order the respondent, the Department of Education-Eastern Cape, to reinstate the applicant Mrs. Nonkululeko Dyantyi to her former position on 11 April 2023.

45. The respondent is further ordered to pay the applicant, Mrs. Nonkululeko Dyantyi an amount of R289 316.25 calculated as R32 146.25 per month salary X 9 months as back pay on 11 April 2023.

46. The employee is ordered to report for duty at the employer’s premises on 11 April 2023.

47. There is no order as to costs.

Signature:

Commissioner: Ncumisa Bantwini
Sector: ELRC Arbitrator