IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIRTUALLY

In the matter between

ALA Mei Applicant

And

Department of Education Western Cape Respondent

Arbitrator: A.Singh-Bhoopchand

Date of award: 21 May 2024

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

1. The employee is Mr Arnold Mei (“Applicant”) and is represented in these proceedings by Mr Z.Dollie, an attorney of the legal firm Dollie Attorneys Incorporated. The Respondent is the Western Cape Department of Education (“Respondent” ), represented in these proceedings by Ms A.Willemse, a labour relations officer within the Labour Relations Directorate of the Respondent. The Applicant referred a dispute to the ELRC claiming that he was unfairly dismissed for alleged misconduct. The matter was conciliated but remained unresolved at conciliation and was then scheduled for determination at arbitration.

2. The hearing was held virtually over two days. The matter was concluded when the parties submitted their closing arguments in writing, the last of which was received on 8 May 2024. I thank the parties for their detailed arguments which I have utilized in this award.

3. The parties submitted a signed pre-arbitration minute and two bundles of documents. It was agreed that the documents included in the bundles will serve as evidence of what they purport to be.

ISSUE TO BE DECIDED

4. I must decide whether the dismissal of the Applicant was substantively fair.

BACKGROUND

5. The Applicant was employed by the Respondent on 2 January 1994. He was found guilty of misconduct at an internal disciplinary hearing after which a sanction of a demotion was imposed. The Applicant appealed the finding and the sanction . On appeal the Minister varied the sanction and imposed the sanction of dismissal. The Applicant was dismissed on 17 November 2023.

6. At the time of his dismissal, the Applicant was the School Principal at Hexvallei Secondary School. His gross monthly remuneration package was R60 427.13 per month.

7. The Applicant was charged with the following offences as per the Notice of Disciplinary Hearing (which has been translated from Afrikaans to English for ease of reference) :
Charge 1
That you are guilty of misconduct in terms of Section 18(1) of the Employment of Educators Act 76 pf 1998 in that you during 2022 unfairly prejudiced the administration , discipline or efficiency of the Hexvallei Secondary School by proceeding to deregister Grade 12 learners attending at the school in contravention of the WCED’ s Policy on Admissions and registration of learners in public schools.

Alternative to Charge 1
That you on 25 March 2022 made yourself guilty of misconduct in terms of section 18(1)(l) of the Employment of Educators Act 76 of 1998 by rendering poor or substandard work for reasons unrelated / not connected to incompetence by proceeding to deregister Grade 12 learners attending at the Hexvallei Secondary School in contravention of the WCED’s Admission and Registration Policy for learners in public schools.

Charge 2
It is alleged that you made yourself guilty of misconduct in terms of section 18(1)(ee) of the Employment of Educators Act 76 of 1998 on /about 19 September 2022 by committing an act of dishonesty when you indicated /mentioned that there were consultations with the parents of the particular Grade 12 learners regarding the deregistration of their children and that the parents consented to their children being deregistered and then registered as private candidates whereas in reality , no such consent was granted by the parents of the affected learners.

SURVEY OF EVIDENCE
Respondent’s Evidence
8. L.van der Berg: He is the assessment and examinations coordinator at the Cape Winelands Education District. He testified that he became aware of allegations when he was informed by the Departments’ Head Office that eighteen learners at the school were not registered on the Departments CEMIS system . He then investigated. The Applicant told him that the learners that were deregistered were under-performing learners and that they were deregistered as they posed a threat to the school targeted pass rate of 70%. According to Mr Van der Berg, in terms of the WCED policy this is not a reason for which learners can be deregistered.

9. He conceded during cross examination that the policy did not provide a closed list of circumstances under which learners can be deregistered and that the reasons mentioned in the policy were examples of situations where learners could be deregistered. However , he reiterated that the deregistration of learners that posed a threat to the 70% targeted pass rate was not allowed .

10. Crystal Badenhorst: She is a technical specialist in the Minister’s office, and she provides technical advice to the Minister. She said that there were two main factors that informed the Minster’s decision to impose the sanction of dismissal. Firstly, the trust relationship with the Applicant was broken because the underlying reason for the deregistration of the eighteen matriculants was to disguise the true results of the school. Secondly, this is not the Applicant’s first offence. He was found guilty of another misconduct for which the presiding officer imposed the sanction of a demotion . While that matter was still subject of an appeal, the Applicant transgressed again by the commission of this misconduct. As it turned out, the sanction of a demotion in that matter was reduced on appeal to that of a fine.

Applicant’s Evidence

11. Arnold Mei: He testified that the eighteen learners that were deregistered were under-performers and were unlikely to pass their matric exams. The Department had set a target of a 70% pass rate for matriculants at their school. They had tried to improve the learner’s performance by providing extra guidance and tuition, but they did not improve. The decision to deregister the learners was taken together with the School Management team and in consultation with the parents of the learners . At the meeting with the parents, they presented to them the option of deregistering their children and registering them as part-time candidates. He told them to go home and to think about it and that if they were agreeable to deregistration that they would be required to sign forms. They subsequently signed the forms. As far as he knew , the Departments CEMIS system allows for parents to exercise the option of registering their children as part-time candidates. He also spoke to other school principals in the area, and it was apparent from his discussions with them that it was an acceptable thing to do. The learners continued to attend school and to attend extra classes which aimed at the improvement of their marks.

12. The completed forms that were signed by the parents were put into an envelope and sent to the district office, It is only when he received a call from Ms de Rhoode from the Departments Head Office enquiring about the deregistration, that he learnt that the forms that he had delivered to the District Office had not reached the Department. Ms de Rhoode advised him that he could register these learners as part-time learners and they could write their examinations in November 2022. However, she later came back to him and said that her supervisor informed her that part time registration was only for learners that were writing examinations in May. The learners were then re-registered, and he assumed that everything was resolved. He was therefore surprised when he received the Notice to attend a disciplinary hearing almost a year later. During this time, from July 2022 until November 2023 when he was dismissed, he continued to work normally in that he was not suspended nor was he moved to another position.

13. His understanding of the Policy at the time was that the circumstances under which learners can be deregistered are not limited to the examples stated in the policy. Further the CEMIS system gives other options. In hindsight he acknowledges that they may have interpreted the policy incorrectly. He denied that the purpose of the deregistration was to obscure the results of the school. The intention was to meet the target and not be regarded as a dysfunctional school.

14. Cathleen Beerwinkel: She is an administration clerk at the school. She confirmed that parents were consulted about deregistration of their children. She was present at the meeting. Parents were specifically told not to feel pressurized to sign the forms and that they should think about it and talk to their children. The parents subsequently signed the forms. The learners were not prejudiced in any way after deregistration as they continued to attend school as well as extra lessons.

ANALYSIS

15. The Respondent bears the onus to prove on a balance of probabilities that the dismissal was for a fair reason and that a fair procedure was followed in arriving at the decision to dismiss. Procedural fairness is not in dispute. Although cases of misconduct must each be decided on their own facts , every case requires the employer or arbitrators to seek answers to the following questions when assessing the fairness of a dismissal:
• Was there a contravention of a rule regulating workplace conduct in the workplace , or of relevance to the workplace?
• Is the rule reasonable and valid?
• Was the employee aware of the rule or ought he/she reasonably to have been aware of the rule?
• Was the sanction of dismissal appropriate?
• Was the sanction consistently applied?

16. The Respondent’s Policy for the Management Admission and Registration of Learners at Ordinary Public Schools (“the policy “) was central to the case of the Respondent and that the Applicant contravened the said policy and was therefore guilty of charge 1. There can be no question that the policy is relevant and important as it guides the registration of learners . Of relevance to this dispute is whether there exists a clear rule in terms of the policy which prohibits the de-registration of learners for the reasons as was done by the Applicant .

17. The essence of the Respondent’s main witness evidence-in-chief was that learners may only be de-registered for specific reasons as outlined on page 26 of the policy and further, that learners who are registered as full-time Grade 12 learners may not be registered as so-called part-time candidates unless they have already previously completed grade 12 . He conceded though during cross examination that the reasons outlined on page 26 of the policy are merely examples and that there is thus no closed list of reasons under which learners may be de-registered. Nevertheless, he maintained that the de-registration of learners for the reasons provided by the Applicant was not allowed . He could not point to a provision in the policy which specifically stated that this was not allowed.

18. It was also evident from the evidence of the Respondent in relation to that of the Applicant that there is a disconnect and disparity or discrepancy between what is stated in the policy and the options permitted on CEMIS and how the Respondent interprets the policy. It was conceded during cross examination of Respondent’s main witness that the CEMIS system, which is used daily by the school , provides for an option that learners may even be de-registered simply by the choice of the parent without any conditions being required by CEMIS.

19. When considering the disconnect and discrepancy between the policy , the options permitted by CEMIS and the apparent lack of a clear knowledge and understanding of the policy and the discrepancies that exist by the Respondent’s own witness , I am persuaded by the version of the Applicant . The Respondent has failed at the first leg to discharge the onus to prove that there exists a clear rule in terms of the policy which prohibits the de-registration of learners for the reasons as was done by the Applicant . Absent a clear rule in this regard, it cannot be said that the Applicant ought to have known how the policy should be interpreted and applied in these circumstances.

20. A further indication that the Applicant acted in good faith and that he genuinely believed that the decision to de-register the learners aligned with the Respondent’s permissible standards, was the fact that the completed and signed relevant forms were delivered to the District Office of the Respondent on or about 25 March 2022, but somehow never reached the Respondent’s Head Office. This aspect was not contested by the Respondent’s witnesses , nor was it challenged by the Respondent when the Applicant and Beerwinkel testified.

21. Although charge 1 talks only of a contravention of a policy, the Applicant was ultimately found guilty on appeal of dishonesty and of willfully attempting to distort the end of year results. Based on the above discussion , it must follow that there was no willful intent to distort or any element of dishonesty. A further aspect that cements my view that the Applicant was not dishonest, is that the de-registration was effected on the Respondent’s own live system, which effectively means that it was not and could not be hidden from the Department. Dishonesty encompasses an element of deception which is absent in this scenario. In fact, the Respondent picked up the de-registration when the learner lists were being compiled and when the Applicant was asked why he deregistered the learners , he gave them his reason. It must be borne in mind that the 70% target was set by the Respondent so it must follow that if the Applicant wanted to willfully distort the end of year results , he would not have disclosed his reason .

22. The Applicant acknowledged that in hindsight now that the policy has been clarified that he ought to have sought clarity. This is the posture of someone who is not comfortable with breaking rules. Equally, the Respondent must ensure that its rules are clear .

23. I also agree with Mr Dollie’s submission that it is unfair that the Applicant was not accorded an opportunity of defending himself against the allegations of dishonesty and willful intent at the disciplinary hearing and that these elements were added to the finding by the Minister on appeal. In terms of the evidence of Badenhorst as well as the reasons provided by the Minister for amending the sanction it is evident that the Minister called for representations to be made only in respect of the sanction after having upheld the guilty finding by the presiding officer of the disciplinary hearing. The Minster did not provide the parties an opportunity to make representations on a charge or aspects with which the Applicant was not charged, nor did the Minister indicate to anyone that he was considering aspects outside of the charges brought against the Applicant.

24. The Respondent did not provide any evidence in respect of the allegations in Charge 2 . The only evidence that I have before me in respect of this charge , is that of the Applicant and that of his witness, Ms Beerwinkel. Ms Beerwinkel corroborated the evidence of the Applicant that parents were consulted ; that the option of de-registration was explained to them and that they were given time to think about it and they consented by submitting signed forms the next day. Respondent attempted to challenge this evidence by putting to this witness that a parent testified at the disciplinary hearing and said that she did not understand what she had signed, the implication being that even if parents consented, it was not informed consent. Notably , no parents were called to testify in these proceedings which is a hearing de novo, and neither was the transcript of the disciplinary hearing provided Respondent bears the onus to prove the allegation . The introduction of evidence in this manner-through the back door so to speak is inadmissible and must be rejected. It cannot by any means serve to discharge this onus.

25. In respect of charge 2 , absent any evidence from the Respondent, the Applicants evidence must stand. Overall, the Applicant came across as a credible and a reliable witness and his version remained consistent in all material respects. More so it was corroborated by Ms Beerwinkel in respect of charge 2.

26. On the totality of the evidence before me , I find that the Respondent has failed to discharge the onus to prove the allegations against the Applicant and thus failed to prove that there was a fair reason to dismiss .

27. Reinstatement is the primary remedy in terms of the Labour Relations Act (LRA) where it is found that the dismissal was substantively unfair -unless it is found that reinstatement is not reasonably practicable. There is no evidence before me that reinstatement is not practicable.

In the premises I make the following award:

AWARD

1. The dismissal of the Applicant, Arnold Mei, was substantively unfair.
2. The Respondent is ordered to reinstate the Applicant with full back pay and benefits from the date of dismissal.
3. I calculate the back pay to be the sum of R302 135,65. This amount must be paid to the Applicant by 31 May 2024.
4. The Applicant must report for duty on 1 June 2024.

A.Singh-Bhoopchand
Senior ELRC Arbitrator