MOJALEFA JACOB MAPHUTSE APPLICANT
AND
DEPARTMENT OF EDUCATION FREE STATE RESPONDENT

1. DETAILS OF HEARING AND REPRESENTATION:

1.1 This arbitration was scheduled to take place at the Lejweleputsa District Education Resources Centre Tullbach Street Welkom at 10am on the 22nd and 9am on the 23rd October 2014.
1.2 The applicant (Mr. Mojalefa Jacob Maphutse) was present and represented by Mr. F Maloka of SADTU.
1.3 Respondent (Department of Education Free State) was represented by Mr. MS Maloka.

2. BUNDLE OF DOCUMENTS
2.1 The Respondent presented me with a bundle (A).
2.2 The Applicant presented me with a bundle (B).

3. THE HEARING:
3.1 The hearing took place in the boardroom of the Lejweleputswa Education Resources Centre on the 2nd Floor.

3. ISSUE TO BE DECIDED:
Whether the dismissal of Mr. Mojalefa Jacob Maphutse by the Free State Department of Education on the 24th February 2014 was procedurally and substantively unfair.

4. BACKROUND TO THE DISPUTE:
4.1 On or about the 2nd December 2013, the Free State Department of Education charged Mr. Mojalefa Jacob Maphutse with the following 10 counts:
4.1.1 Charge 1: You have contravened section 18(1)(i) of the Employment of Educators Act 76 of 1998 in that on the 9th April 2013 while on duty at Teto secondary School; you have failed to carry out a lawful order or routine instruction without just or reasonable cause when you did not compile and submit first term School Based Assessment tests of Life Orientation Grade 9G & 9H to the HOD (Ms.Nkuna).
4.1.2 Alternative to Charge 1: You have contravened section 18(1)(f) of the Employment of Educators act 76 of 1998 in that on the 9th April 2013 while on duty at Teto Secondary School, you unjustifiably prejudiced the administration, discipline of efficiency of the School when you did not compile and submit first term School Based Assessment tests of Life Orientation Grade 9G & 9H to the HOD (Ms. Nkuna).
4.1.3 Charge 2: You have contravened section 18(1)(i) of the Employment of Educators Act 76 of 1998 in that on the 9th April 2013 while on duty at Teto secondary School; you have failed to carry out a lawful order or routine instruction without just or reasonable cause when you did not compile and submit first term School Based Assessment tests of Geography Grade 10E & 10F to the HOD(Ms.Botha).
4.1.4 Alternative to charge 2: You have contravened section 18(1)(i) of the Employment of Educators Act 76 of 1998 in that on the 9th April 2013 while on duty at Teto secondary School; you have failed to carry out a lawful order or routine instruction without just or reasonable cause when you did not compile and submit first term School Based Assessment tests of Geography Grade 10E & 10F to the HOD(Ms.Botha).
4.1.5 Charge 3: You have contravened section 18(1)(i) of the Employment of Educators Act 76 of 1998 in that on the 9th April 2013 while on duty at Teto secondary School; you have failed to carry out a lawful order or routine instruction without just or reasonable cause when you did not compile and submit first term School Based Assessment tests of Sesotho Grade 11D & 11E to the HOD(Mr.Kashe).
4.1.6 Alternative to charge 3: You have contravened section 18(1)(f) of the Employment of Educators Act 76 of 1998 in that on the 9th April 2013 while on duty at Teto secondary School; you have failed to carry out a lawful order or routine instruction without just or reasonable cause when you did not compile and submit first term School Based Assessment tests of Sesotho Grade 11D & 11E to the HOD(Mr. Kashe).
4.1.7 Charge 4: You have contravened section 18(1)(i) of the Employment of Educators Act 76 of 1998 in that on the 10th May 2013 while on duty at Teto secondary School; you have failed to carry out a lawful order or routine instruction without just or reasonable cause when you did not compile and submit first term School Based Assessment tests of Life Orientation Grade 9G & 9H to the HOD(Ms.Nkuna).
4.1.8 Alternative to charge 4: You have contravened section 18(1)(f) of the Employment of Educators Act 76 of 1998 in that on the 10th May 2013 while on duty at Teto secondary School; you have failed to carry out a lawful order or routine instruction without just or reasonable cause when you did not compile and submit first term School Based Assessment tests of Life Orientation Grade 9G & 9H to the HOD(Ms.Nkuna).
4.1.9 Charge 5: You have contravened section 18(1)(i) of the Employment of Educators Act 76 of 1998 in that on the 10th May 2013 while on duty at Teto secondary School; you have failed to carry out a lawful order or routine instruction without just or reasonable cause when you did not compile and submit first term School Based Assessment tests of Geography Grade 10E & 10F to the HOD(Ms.Botha).
4.1.10 Alternative to charge 5: You have contravened section 18(1)(i) of the Employment of Educators Act 76 of 1998 in that on the 10th May 2013 while on duty at Teto secondary School; you have failed to carry out a lawful order or routine instruction without just or reasonable cause when you did not compile and submit first term School Based Assessment tests of Geography Grade 10E & 10F to the HOD(Ms.Botha).
4.1.11 Charge 6: You have contravened section 18(1)(i) of the Employment of Educators Act 76 of 1998 in that on the 10th May 2013 while on duty at Teto Secondary School; you have failed to carry out a lawful order or routine instruction without just or reasonable cause when you did not compile and submit first term School Based Assessment tests of Sesotho Grade 11D & 11E to the HOD(Mr. Kashe).
4.1.12 Alternative to charge 6: You have contravened section 18(1)(f) of the Employment of Educators Act 76 of 1998 in that on the 10th May 2013 while on duty at Teto secondary School; you have failed to carry out a lawful order or routine instruction without just or reasonable cause when you did not compile and submit first term School Based Assessment tests of Sesotho Grade 11D & 11F to the HOD(Mr. Kashe).
4.1.13 Charge 7: You have contravened section 18(1)(i) of the Employment of Educators Act 76 of 1998 in that on the 10th June 2013 while on duty at Teto secondary School; you have failed to carry out a lawful order or routine instruction without just or reasonable cause when you did not compile and submit first term School Based Assessment tests of Life Orientation Grade 9G & 9H to the HOD(Ms.Nkuna).
4.1.14 Alternative to charge 7: You have contravened section 18(1)(f) of the Employment of Educators Act 76 of 1998 in that on the 10th June 2013 while on duty at Teto secondary School; you have failed to carry out a lawful order or routine instruction without just or reasonable cause when you did not compile and submit first term School Based Assessment tests of Life Orientation Grade 9G & 9H to the HOD(Ms.Nkuna).
4.1.15 Charge 8: You have contravened section 18(1)(i) of the Employment of Educators Act 76 of 1998 in that on the 10th June 2013 while on duty at Teto secondary School; you have failed to carry out a lawful order or routine instruction without just or reasonable cause when you did not compile and submit first term School Based Assessment tests of Geography Grade 10E & 10F to the HOD(Ms.Botha).
4.1.16 Alternative to charge 8: You have contravened section 18(1)(i) of the Employment of Educators Act 76 of 1998 in that on the 10th June 2013 while on duty at Teto secondary School; you have failed to carry out a lawful order or routine instruction without just or reasonable cause when you did not compile and submit first term School Based Assessment tests of Geography Grade 10E & 10F to the HOD(Ms. Botha).
4.1.17 Charge 9: You have contravened section 18(1)(i) of the Employment of Educators Act 76 of 1998 in that on the 10th June 2013 while on duty at Teto secondary School; you have failed to carry out a lawful order or routine instruction without just or reasonable cause when you did not compile and submit first term School Based Assessment tests of Sesotho Grade 11D & 11E to the HOD(Mr. Kashe).
4.1.18 Alternative to charge 9: You have contravened Section 18(1)(l) of the Employment of Educators Act 76 of 1998 in that on the 10th June 2013 while on duty at Teto secondary School; you unjustifiably prejudiced the administration, discipline or efficiency of the school when you again did not compile and submit first term School Based Assessment tests of Sesotho Grade 11D & 11E to the HOD (Mr. Kashe).
4.1.19 Charge 10: Alternative to charge 9: You have contravened Section 18(1)(l) of the Employment of Educators Act 76 of 1998 in that on the 16th July 2013; you have performed poorly or inadequately for the reasons other than incapacity when the Principal (Ms. Mchunu) found that you did not mark the Grade 11D & 11E Sesotho exam papers and School Based Assessment tests of June 2013 examinations.
4.1.20 Alternative to charge 10: You have contravened Section 18(1)(f) of the Employment of Educators Act 76 of 1998 in that on the 16th July 2013; you unjustifiably prejudiced the administration, discipline or efficiency of the School when the Principal (Ms. Mchunu) found that you did not mark the Grade 11D & 11E Sesotho exam papers and School Based Assessment tests of June 2013 examinations.
4.2 The applicant was found guilty and dismissed after a disciplinary hearing on the 24th February 2013.

5 SURVEY OF EVIDENCE AND ARGUMENT:

5.1 Evidence of defence
EVIDENCE OF Mrs. MPOLAI MCHUNU (THE PRINCIPAL).
5.1.1 That she is the principal for 11 years but has been attached to the school for 34 years.
5.1.2 Duties are to supervise the staff, maintain the school premises. Report to the parents about the progress of the learners among others.
5.1.3 Mr Maphutse was an Educator at the school and responsible for teaching Life Orientation classes 9G & 9H, Geography classes 10E & 10F and Sesotho classes 11D & 11E.
5.1.4 She is aware of the charges against Mr. Maphutse and the reasons why he was charged.
5.1.5 I am normally reported to by the HOD’s. I was informed that Mr. Maphutse has not submitted the work of Ms. Nkuna, Ms. Botha and Mr. Kashe.
5.1.6 Mr. Maphutse was supposed to submit his work on the 9th April but only submitted on the 14th of May 2013.
5.1.7 Life Orientation marks were missing on the schedule.
5.1.8 The blank spaces on the schedule are spaces that were supposed to have been filled with the information that was supposed to have been submitted by Mr. Maphutse but at the time of printing that information had not been submitted.
THE EVIDENCE OF Ms. NKUNA HOD of LO.
5.1.9 There was a departmental year plan that had programs and submission date.
5.1.10 Every Tuesdays of the week the school hold departmental meetings where they motivate discuss and remind educators about programs and submissions.
5.1.11 There is a departmental protocol that each department is supposed to follow so that reports should be handed out to parents(Reference is made to Page 9 of Respondent bundle)
5.1.12 On reopening on 9 April 2013 we were on a go slow as I am also a SADTU member.
5.1.13 We were expecting colleagues to submit SBA as it had been arranged before, some educators submitted on the date and almost the rest submitted later.
When the strike was off we then requested Mr. Maphutse to submit but he submitted three classes but failed to submit 9G& 9H of Life Orientation.
5.1.14 All her down lines submitted the work except Mr. Maphutse.
5.1.15 Submission has always been a problem to Mr. Maphutse over the years.
5.1.16 Once he was called to a meeting by the Senior Management Team (SMT) where they had to address failure to submit work of Mr. Kashe (Sesotho HOD) he became unruly and walked out of the meeting.
TESTIMONY OF Ms. BOTHA (GEOGRAPHY HOD)
5.1.17 She testified that Mr. Maphutse failed to submit his work Geography on 9 April, 10 May and 10 June 2013.
5.1.18 She further confirmed that reports were issued without Mr. Maphutse’s work.
5.1.19 He should have submitted on 9 April 2013 as there was no strike during the holidays of March- April 2013.
5.1.20 The timing for him to submit on 10 May 2013 was reasonable as a month has lapsed and he should have long submitted.
5.1.21 They had even in the past assisted him to arrange his files as he could not do it and even marked his work.
5.1.22 Mr. Maphutse couldn`t do his work.

5.2 TESTIMONY OF MR. MAPHUTSE (APPLICANT)
5.2.1 He confirmed the following material evidence;
5.2.2 that he failed to submit his work on 9 April 2013,10 May 2013, 10 June 2013 and did not mark the work of Sesotho and had failed to mark SBA examination test on 11E on 16 July 2013.
5.2,3 That upon reopening of the schools, he had done all the work and had all the marks but he did not want to submit because he did not want to betray his union.
5.2,4 He confirmed that the three HOD’s did ask him to submit but that he was not prepared as that would have meant betraying his union.
5.2.5 He admitted that he submitted Geography on the 14 may 2013 after the 10 May deadline.
5.2.6 He informed the sitting that there is a sour relationship between him and the Principal of the school Ms. Mchunu.
5.2.7 He is a type of a person who always asks if he does not understand.
5.2.8 He had a problem with his divorce and funerals that occurred and he even consulted psychologist and was booked into a hospital.
5.2.9 He disclosed his illness to Ms. Nkuna but did not tell the Principal.
5.2.10 He gets angry when people shouts at him and Ms. Mchunu always shouts at him and he does not go to her office as a result.

6. ANALYSIS OF EVIDENCE AND ARGUMENT
6.1 Mr. Maphutse does not in any way deny that he committed the offence as per the charge sheet.
6.2 The point that he is raising is that there was a strike and he as a loyal member of SADTU and is entitled to support his union.
6.3 In closing argument Mr. Maloka from SADTU argues very strong that Mr. Maphutse was entitled in terms of the constitution of the country to support the strike by his union, Commissioner, South Africa is a democratic state founded on values such as 1. Human dignity 2. Equality 3. The advancements of human rights and freedom 4. Non-racialism and 5. Non-sexist. The constitution is the supreme law of any country and should be respected at all material times, and any law or conduct that is not in line with the constitution is invalid. The obligation imposed by the constitution must be fulfilled. This means that all issues of labour must be considered in the light of constitutional principles and the rights contained in the Bill of Rights Chapter Two of our constitution speaks of the Bill of Rights. Section 23: (Labour Relations) sub-section 2 (c): (every worker has the right)
(b) to participate in the activities and programmes of a trade union and
(c) To strike
6.4 I agree completely with Mr.Maloka on this point save to say that one thing is missing from his argument, that these rights he has referred me to can only be exercised in terms of section 64(1)(a) and (b) of the LRA. There is nowhere where Mr. Maloka has indicated or led evidence that the strike by members of SADTU at the time was exercised after his union (SADTU) had followed the procedures in terms of the LRA.
6.5 I have been provided with no disciplinary records of the applicant and no evidence of her previous disciplinary history was tendered in this arbitration but the allegations on which applicant was charged and found guilty are serious enough to compel me to confirm the sanction of dismissal and in substantiating my decision I am persuaded by the decision in De Beers Consolidated Mines (Pty) Ltd v Commission for Conciliation, Mediation & others (2000) 21 ILJ 1051; [2000] BLLR 995 (LAC).
6.6 I am compelled to align myself with the representative of the Department of Education when he says that the conduct of Mr. Maphutse is serious and willful. He said that he had always been having the marks but did not want to betray his union by submiting. The court held in National Trading Co v Hlazo 1994 12 BLLR 53(LAC) that insubordination has to be of a serious and willful character in order to justify summary dismissal. In this instance I find the actions of Mr. Maphutse to constitute insubordination.
6.7 The Labour Appeal Court in CWIU and another v SA Polymer Holdings Pty (Ltd) t/a Megapack (1996), defined insubordination as “a wilful and serious refusal to obey a lawful and reasonable command, or conduct by the employee which poses a deliberate and serious challenge to the employer’s authority. The Court accordingly found the dismissal to have been substantively fair.
6.8 In Commercial Catering & Allied Workers Union of SA and Another v Wooltru Ltd t/a Woolworths (Randburg) (1989) 10 ILJ 311 (IC). It was held that:
“the offence of insubordination is constituted by the following: When the employee refuses to obey a lawful and reasonable command or request and the refusal is wilful and serious (wilful disobedience), or when the employee’s conduct poses a deliberate (wilful) and serious challenge to the employer’s authority.
6.9 Mr Maphutse took a conscious decision not to perform his functions and in so doing caused the school to print and send the reports to the parents without the marks of the subjects that he taught. This action seriously prejudiced the administration of the school.

7. AWARD:
I therefore make the following award:
7.1 That the dismissal of Mr. Mojalefa Jacob Maphutse by the Department of Education Free State is both procedurally and substantively fair.
7.2 That this application is dismissed.
7.2 There is no order as to costs.

Butiki Rantso
Panelist
6th November 2014