In the arbitration between:

M WIUM APPLICANT

and

GAUTENG DEPARTMENT OF EDUCATION
RESPONDENT

ARBITRATION AWARD
1 . INTRODUCTION

.1 The arbitration was held on 29 March 2000 at the Dept of Education offices, 111 Commissioner Street, Johannesburg. Mr Jeff Thipe represented the Department of Education. Mr Jonker represented Mr Wium who is the Applicant in this matter. This arbitration was about an alleged unfair dismissal of Mr Wium.

.2 In terms of the arbitration agreement, I am required to determine whether in my opinion based on evidence presented

there is fair cause to make a finding of misconduct.
what sanction is fair for such conduct.
whether the employee had a fair opportunity to state his case prior to the dismissal.
.3 The arbitrator also has the power to make an award, which she deems appropriate and which may prescribe a sanction or remedy including reinstatement.

.4 At the beginning of the arbitration process, Mr Thipe objected to the legal representation of Mr Wium by Mr Jonker. He supported his argument by quoting the following sections of the LRA:

Section 138 (1), which deals with the general provision for the arbitration proceedings.

Section 140 (1)(b), which deals with special provisions for arbitration about dismissal for reasons, related to conduct and capacity.

Section 210, which deals with the application of the Act when in conflict with other laws.
.5 Mr Jonker counter argued by saying that the ELRC is a statutory body like the CCMA. It operates on the basis of an agreement that was negotiated by all relevant stakeholders. Annexure A of the Education Labour Relations Council that deals with dispute resolution procedures, section 8.3.1(a) allows that any party to the dispute may be represented by a trade union official and/or management official and/legal representative.

.6 The arbitrator made a ruling in favour of Mr Wium allowing him to be represented by Mr Jonker. The basis of this decision was the fact that the ELRC has an agreement that allows for legal representation. The sections that were quoted by Mr Thipe from the LRA apply in situations of commissioners when operating under the auspices of the CCMA.

2 . ISSUE IN DISPUTE

.1 The Department’s position was that the dismissal of Mr Wium was procedurally and substantive fair.

.2 He was charged for making a false statement regarding his criminal offence during his application for the Deputy Principal’s position.

.3 Mr Wium had been appointed as Deputy Principal of Meyerton Primary School.

.4 Mr Jonker’s position on the other hand was that the Department had knowledge of Mr Wium’s criminal record.

.5 He was even suspended by the council for two years. His name was removed from the list of educators. The council later reinstated him and the Department has always had this information.

.6 Based on these factors, Mr Jonker believes that the dismissal of Mr Wium was substantively unfair.

3 . EVIDENCE

.1 The first witness on behalf of the Department was Mr Trevor Frederick. The Department employs him as Labour Relations Practitioner. He started working for the Gauteng Department of Education in 1996. Prior to that he was with the Western Cape Department of Education.

.2 Mr Frederick’s main responsibilities are to co-ordinate all disciplinary matters. He acknowledged that he had also dealt with Mr Wium’s disciplinary matter. He explained the steps that have to be followed before disciplinary action can be taken against an employee. This process includes the appointment of a disciplinary tribunal.

.3 Mr Wium was charged for making a false or incorrect statement knowingly. He made this statement when he submitted a CV together with his application for a Deputy Principal’s position at Meyerton Primary School. He indicated in his CV that he had no criminal offence whereas he had one in about 1993.

.4 According to Mr Frederick, there was no formal request to produce such information about his criminal record. This was information that Mr Wium had voluntarily provided without being requested to do so. Furthermore, there was no such a record in Mr Wium’s personal file.

.5 The Department responded to the complaint that was lodged by Mr De Beer who was acting on behalf of the SGB. The complaint was with regard to Mr Wium’s failure to disclose his criminal offence. The Department conducted its own investigation that resulted in disciplinary action being taken against Mr Wium. Subsequently, he was dismissed in terms of Section 11(1) of the Employment of Educators Act.
.6 According to Mr Frederick, the final decision to dismiss or not to dismiss an educator lies with the Superintendent-General. In terms of the letter dated 23 March 1999, the SG did consider the recommendations by the tribunal to give Mr Wium a warning. Having considered all other mitigating and aggravating factors, however, he decided to dismiss Mr Wium’s on the grounds that he saw this transgression as amounting to gross dishonesty.

.7 Under cross-examination, Mr Frederick acknowledged that he only became aware of Mr Wium’s criminal offence for the first time when the Department received a complaint through Mr De Beer who was acting on behalf on the School Governing Body.

.8 Mr Frederick claimed that he was not aware of Mr Wium’s suspension by the Federal Council for his criminal offence. He consequently lost his position as an educator, as his name was removed from the list of educators.

.9 Mr Frederick denied under cross-examination that he received a letter from Mr Wium lodging a grievant against Mr De Beer who had forcefully suspended him from duty without following the procedure.

.10 Mr Wium who is the Applicant in the matter led his evidence. Mr Wium testified that he started working as a teacher in 1966. He gave information about the qualifications that he had obtained while he was employed as teacher. Mr Wium further gave an explanation about the circumstances that led to his criminal offence. He was charged for failing to account for an amount of R300,00 that belonged to a school fund.

.11 Mr Wium further led evidence that he was readmitted as a teacher after he had been suspended for two years. He first acquired a teaching position on a temporal basis. The Department of education advised him to clear his name with the council before he could qualify to be appointed in a permanent position. This shows that the Department had information about his criminal offence. His name was subsequently cleared with the council after a period of three years.

.12 In 1996, Mr Wium applied for a Deputy Principal’s position in Meyerton Primary School where he was appointed. He gave an explanation about how he was suspended from duty by Mr De Beer. On 11 August 1998, Mr De Beer called an emergency meeting of the SGB. He came to the meeting with a tape recorder. Without any prior discussions, he instructed Mr Wium to immediately remove himself from the school premises.

.13 Mr Wium in his evidence confirmed that the Department had charged him for making false or incorrect statements about his criminal offence. He said he pleaded not guilty to the charge during the hearing. The disciplinary tribunal recommended that he be given a warning but the Superintendent-General decided to dismiss him. He brought an appeal against this decision to the MEC that was later upheld.

.14 Under cross-examination Mr Wium contradicted himself by initially testifying that he accepted the decision of the Federal Council to suspend him because there was no reason to challenge it.
.15 He later said his reason for not challenging it was that there was no forum that allowed for an appeal within the council.

.16 Mr Wium admitted that he made an incorrect or false statement about his criminal offence at the time that he was applying for the Deputy Principal position. He believes that the Federal Council had punished him and the Department is punishing him again for a similar offence.

.17 Mr Wium contended that the Department had knowledge of his criminal offence. He had previously discussed it with Mr De Beer and was under the assumption that he communicated the information to the Department.

.18 The second witness on behalf of Mr Wium was Mr Antony Weinzierl who is the current SGB chairman at Meyerton Primary School. He explained he has been serving as a member of the SGB finance committee since 1997.

.19 In his testimony he corroborated Mr Wium about how he was suspended from duty by Mr De Beer on 12 August 1998. He said that he believed that some members of the SGB already knew about the decision to suspend Mr Wium. He is one of the people who were surprised by the decision to immediately suspend Mr Wium from duty.

.20 Under cross-examination Mr Weinzierl mentioned that he was not aware of any relationship problem that existed between Mr Wium and Mr De Beer. He became aware of Mr Wium’s criminal offence for the first time at the meeting of 12 August 1998.

4 .ARGUMENT BY THE DEPARTMENT OF EDUCATION

.1 The Department presented the following arguments:

.1 The Department of Education appointed Mr Wium in a permanent position in 1994. The Department received a complaint from the SGB about an allegation that Mr Wium had failed to disclose his criminal offence at the time when he was applying for the Deputy Principal position. The Department conducted an investigation that led to his charge of misrepresenting himself in his application.

.2 Disciplinary action was taken against Mr Wium. The disciplinary tribunal recommended that the Department give him a warning. The Superintendent-General did not accept the recommendations made by the tribunal. He decided to dismiss him on the grounds that Mr Wium’s transgression amounted to gross dishonesty.

.3 The dispute about Mr Wium’s dismissal arises from a public sector industry that is highly regulated. It is therefore important for parties that are in dispute to understand the regulations and procedures to be able to challenge issues.

.4 The issue that is in dispute according to Mr Jonker is that the dismissal of Mr Wium was substantively unfair. The Superintendent-General made it clear in his letter of dismissal to Mr Wium that he did consider all mitigating and aggravating circumstances including the recommendations by the tribunal. His decision to dismiss Mr Wium was well thought of and he acted within his powers.

.5 Mr Wium was charged for misleading the Department by saying that he had no criminal record. He voluntarily provided such information without being asked for it. He decided on his own accord to submit a CV that requested information about his criminal offence and he said he had no such record. He did this knowing very well that he had a criminal offence in about 1993.

.6 There is a deliberate attempt by Mr Wium to confuse this process by testifying that he is punished twice. Mr Wium is clearly not charged for theft as was convicted by the court of law. The Department has charged him for misleading the Department in his application for a Deputy Principal’s position.

.7 Mr Wium has raised a lot of irrelevant issues about failure by the MEC to meet him. The MEC is the political head. The arbitration process has no jurisdiction to challenge decisions that are made by the MEC. The request for a meeting with the MEC by Mr Wium in this case is therefore irrelevant.

.8 The notion that the Department has always known about his criminal offence is incorrect. Mr Frederick in his evidence testified that such information was not available in Mr Wium’s personal file.

.9 No evidence was led to show how such information was communicated to the Department except for his discussion with Mr De Beer. Mr Wium clearly stated in his evidence that he assumed that Mr De Beer could have notified the Department about his criminal offence.

.10 It would have made sense if the arguments presented were against the sanction of dismissal and not the reason thereof. Most of the arguments by Mr Jonker are irrelevant to the sanction of dismissal, the issue that is in dispute. The Department’s position is that Mr Wium was appointed in a position of trust and authority as a deputy Principal. The fact that he acted dishonestly by misleading the Department is a serious form of misconduct.

.11 The Department does not in anyway condone Mr De Beer’s action to forcefully suspend Mr Wium without following the procedure.

5 . THE APPLICANT’S ARGUMENT

.1 The dismissal of Mr Wium was substantively unfair. The Superintendent-General did not take into consideration the recommendations by the disciplinary tribunal who suggested that Mr Wium be given a warning.

.2 The Department had information about his criminal offence. The Federal Council suspended him for two years. The Department had advised Mr Wium to clear his name before he could qualify for a permanent position. It does not make sense for the Department to claim not to have had information of Mr Wium’s criminal record.

.3 Mr Frederick’s evidence was about the flow of documents, most of it was basically hearsay and based on his opinion.

.4 No reason was given as to why the MEC and Mr De Beer were not called to testify on behalf of the Department. The Department has failed to prove its case. No valid reasons were given for the dismissal of Mr Wium.

.5 The Department has argued that the trust relation between Mr Wium and the Department had broken down but no evidence was led to substantiate their argument.

.6 Mr Jonker admitted to have made the concession at the beginning of the arbitration to only challenge the substantive unfairness of the case. He had since realized that in terms of regulation 97 (a) (b) there were irregularities in the procedure for the appeal, as well.

.7 Mr Jonker applied in his closing argument to change his case and raise a procedural issue with regard to the appeal process. This was that the decision to uphold Mr Wium’s dismissal was taken without a hearing, therefore the process was unfair.

6 . ANALYSIS OF EVIDENCE

.1 It has become clear from the evidence presented that :

.1 Mr Wium was charged for misleading the Department during his application for the Deputy Principal’s position.

.2 In 1993, Mr Wium was convicted for theft by the court of law that involved an amount of R300 belonging to a school fund, which he could not account for. He was subsequently suspended as a teacher for a period of two years.

.3 Mr Wium’s personal file had no information about his criminal offence. Mr Jonker on the other hand argued that the Department was aware of such information.

.4 Mr Jonker believes that Mr Wium has been punished twice for the same offence. The fact that the Federal Council suspended him for two years was punishment enough for him.

.5 In my opinion, some of the evidence that had been presented in this matter tends to cloud the real issue. Mr Wium had been charged for making false or incorrect statement about his criminal record. His argument that he has been punished twice is misleading.

.6 He claims that the Federal Council had suspended him and now the Department has dismissed him for the same offence. I do not believe that Mr Wium can not separate the two, he seems to deliberately attempt to confuse the issues.

.7 It is clear from the evidence presented that the Federal Council suspended Mr Wium as a result of his criminal offence. The Department charged him for making an incorrect statement about his criminal record, which subsequently led to his dismissal.

.8 Mr Wium in his evidence testified that he pleaded not guilty to the charge during the disciplinary hearing and yet he admitted in this process that he made an incorrect statement about his criminal record. This is a contradiction that makes his credibility as a witness questionable.

.9 John Grogan in his book, Workplace Law, 4th edition states that “An employee is obliged to disclose prior misconduct only if such prior misconduct has a bearing on the relationship to be forged with the new employer. If there was a duty to disclose, the employer may terminate the contract after its commencement on the basis of such non-disclosure, provided it is material.

.10 According to evidence by Mr Frederick there was no request by the Department for Mr Wium to disclose his criminal record. He had voluntarily informed the Department that he had no criminal record and yet he had one. Mr Wium was not under any pressure to disclose, he decided on his own accord to mislead the Department.

.11 If the Department had known about Mr Wium’s criminal record, the question is, would he have been appointed as Deputy Principal? In terms of evidence that was led by the Department, they got to know about his criminal record for the first time when Mr De Beer lodged a complaint about this issue.

.12 Mr Wium testified that he had discussed his criminal record with Mr De Beer. He assumed that Mr De Beer had communicated this information to the Department. According to Mr Frederick, this information was not in Mr Wium’s personal file.

.13 Based on evidence presented, it appears that Department was not aware of Mr Wium’s criminal record at the time he applied for the Deputy Principal’s position. There is a possibility that the would not have appointed as Deputy Principal if the Department knew about his criminal record. Mr Wium’s prior misconduct does have a bearing on the relationship that was to be forged between himself and the Department in his new position as Deputy Principal.

.14 According to Mr Jonker, the issue that is in dispute is that the dismissal of Mr Wium was substantively unfair. Evidence was led by the Department to show that the reason for Mr Wium’s dismissal was carefully considered by the Superintendent-General.

.15 All mitigating and aggravating circumstances including the disciplinary tribunal’s recommendations were considered. Mr Wium had been appointed in a position of trust and authority as Deputy Principal. The fact that he acted dishonestly by misleading the Department is a serious form of misconduct.

.16 Mr Wium has a record of misusing school funds. Considering his work environment and his responsibilities as Deputy Principal that will involve management of school funds, I am of the opinion that there was sufficient evidence to render the trust relationship between the Department and Mr Wium as broken down.

.17 Mr Jonker’s other argument about the Department’s failure to call the MEC and Mr De Beer as witness to this process was irrelevant. His application to change his case and raise procedural issues during the closing argument could not be substantiated by any evidence, therefore had no significance.

.18 I would found that Mr Wium’s past criminal record rendered him unfit for the employment offered. There was a fair cause to make a finding of misconduct. He further misled the Department by making false or incorrect statement about his criminal record.

.19 I regard an employee/employer relationship where the employee is trusted with school assets to be where utmost good faith is required. There was a clear material misrepresentation of facts by Mr Wium’s during his application for the Deputy Principal’s position.

.20 I find that the dismissal of Mr Wium was substantively fair.

7 . AWARD

Mr Wium’s dismissal is upheld.

_______________________
ARBITRATOR
Me L R ZONDI
Date : 3 April 2000

EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD

CASE NUMBER PSES GAAR 010034 GDE
APPLICANT M WIUM
RESPONDENT DEPARTMENT OF EDUCATION
NATURE ALLEGED UNFAIR DISMISSAL
ARBITRATOR MRS L R ZONDI
DATE OF ARBITRATION 29 MARCH 2000
VENUE JOHANNESBURG

REPRESENTATION:

APPLICANT MR JONKER
RESPONDENT MR JEFF THIPE

AWARD:

Mr Wium’s dismissal is upheld.

DATE OF AWARD 3 APRIL 2000