IN THE EDUCATION LABOUR RELATIONS COUNCIL

HELD AT VRYBURG

ON 20 NOVEMBER 2012 & 29 & 30 JANUARY 2013

IN THE MATTER BETWEEN:

NAPTOSA obo EMANUEL MOKOKA

AND

THE DEPARTMENT OF EDUCATION- NORTH WEST

PSES 539-11/12 NW

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

The present dispute between NAPTOSA obo Emanuel Mokoka (hereinafter referred to as the applicant) and The Department of Education- North West (hereinafter referred to as the respondent) was referred to Arbitration in terms of Section 191 of Act no 66 of 1995, as amended (the Act). At the Arbitration hearing which was held at the Boardroom of the respondent in Vryburg on 20 November 2012, the applicant was represented by Mr. R Henderson, an attorney and the respondent was represented by Mr. P M Meje.
The matter was adjourned due to the lateness of the hour and had convened again on 29 and 30 January 2013. Due to the conspectus of evidence the parties were afforded an opportunity to submit written closing arguments by no later than 6 February 2013. Hence being the last date of the arbitration.
The submission of the award was extended by Council after my request for extension of a further 7 days due to the conspectus of evidence and the number of charges brought against the applicant.

ISSUE TO BE DECIDED

4. The issue to be decided by myself pertains to whether the dismissal of the applicant, Mr. Mokoka is procedurally and substantively fair. Substantively, I am to decide whether Mr. Mokoka is indeed guilty of the 4 charges of misconduct brought against him. It was further challenged that the respondent had failed to apply it’s discipline consistently. Procedurally, I am to decide if it was unfair for the disciplinary hearing Chairperson to have continued with the disciplinary hearing in the absence of the applicant’s representative.

BACKGROUND TO THE ISSUE

5. The applicant was employed as a Principal at the Itumeleng Primary School. The school is farm school with a limited number of learners. The applicant was charged on four counts of misconduct and was dismissed subsequent to a disciplinary hearing on 27 October 2011. The applicant referred a dispute to Council in terms of Section 191. The Conciliation failed and a certificate of non resolution was issued. The matter was then referred to arbitration.

SURVEY OF EVIDENCE AND ARGUMENTS

Both parties were afforded the opportunity to present opening statements, call witnesses and submit written closing arguments. The respondent called nine witnesses, Ms. Hannah Taetso Chabeli; Mr. Johannes Masekoameng; Ms. Doreen Kesentselg Mmelesi; Ms. Nonkono Gretta Maneli; Ms. Bulelwa Pearl; Mr. Bartmen Madau; Mr. Patrick Daniel Perumal; Mr. Adriaan Gerhardus van der Nest and Mr. Aisengkgootla Moreki to testify. The applicant, Mr. Emanuel Chankie Mokoka testified on his own behalf. A pre arbitration meeting was concluded on 28 February 2012. A signed copy of the minute was handed up. The respondent handed up a bundle of documents and was accepted to be what it purported to be. Herewith, brief reasons for my decision in terms of Section 138 (7). Should any of the evidence presented at the arbitration not be reflected hereunder, then it does not mean that it was not considered.

ANALYSIS OF EVIDENCE AND ARGUMENTS

PROCEDURAL FAIRNESS

7. The respondent’s witness, Ms. Chabeli who had investigated the matter was called to testify in respect to conducting the investigation with the applicant in the absence of the applicant’s representative. I am not inclined to discuss this aspect of her testimony since it had not been reflected on the pre-arbitration minute as an issue to decided. The issue was raised in the opening statement of the applicant and without an application to amend the pre-arbitration minute, I am not inclined to consider same.

8. However Ms. Chabeli did indeed testify that the disciplinary hearing was initially supposed to sit in March 2011. There were various postponements. In March 2011 she had contacted Mr. Thabo of the union who had indicated to her that he had not consulted with Mr. Mokoka and confirmed that he was indeed dealing with the matter. Again in May 2011 she telephoned Mr. Thabo of the union and he confirmed that he had requested a postponement which was granted by the Chairperson. In June 2011 she again telephoned Mr. Thabo who had requested yet another postponement due to him writing exams. She had conceded to the request for postponement. Finally on the eve of the disciplinary hearing in July 2011, she telephoned Mr. Thabo once again and he informed her that the case was too complex and referred her to Mr. Masondo who according to him was handling the case.

9. Mr. Masondo informed Ms.Chabeli that he was at a conference in Cape Town and that he knew nothing of the case and that he was not charge of the district. On the date of the hearing another individual of the union had presented a medical certificate on behalf of Mr. Thabo. She informed the Chairperson that she had spoken to Mr. Thabo the day before and he not indicated that he was ill or that he was not attending. She was not satisfied with the further request for postponement and that the Chairperson had ruled that the matter continue. Mr. Mokoka had indicated his willingness to proceed with the matter. Mr. Mokoka had participated in the hearing and only withdrew from the hearing whilst he was at cross examination.

10. At cross-examination it was not disputed that Mr. Mokoka had not agreed to continue with the disciplinary in the absence of his representative. In fact it was admitted by Ms. Chabeli that Mr. Mokoka and the messenger of the union who had brought in the medical certificate were allowed the opportunity to a private caucus. The conversations by Ms. Chabeli with Mr. Thabo and the non readiness of the union to represent Mr. Mokoka had also not been disputed. It is plausible that both the respondent and the Chairperson were fed up with the various excuses and delays forwarded by the union that they were not willing to accept the sick note of the union representative as being an authentic excuse since Ms. Cabeli had indeed spoken to Mr. Thabo of the union. The applicant cannot rely on the tardiness of his union representative as a reason for the delay.

11. The respondent’s second witness Ms. Masekoameng had presided as a Chairperson at the internal disciplinary hearing on 28 July 2011. Ms. Masekoameng testified that though a medical certificate was produced to her by Mr. Mokoka who had sought a further postponement, he allowed the parties to consult since there was an objection by the respondent in respect of the medical incapacity of the applicant’s representative. The disciplinary hearing had been postponed on three previous occasions and Ms. Masekoameng was informed that the applicant would continue in the absence of his representative. The Chairperson of the hearing had also considered that fairness was also in the expeditious resolution of the disciplinary hearing being heard. Ms. Masekoameng had weighed the fact that the matter was previously postponed on three occasions as opposed to the speedy resolution of the dispute and hence made the ruling that the matter proceed.

12. At cross-examination Ms. Masekoameng confirmed that after the ruling was made to deny the applicant’s request for postponement, Mr. Mokoka returned and indicated to her that he would represent himself. Ms. Masekoameng conceded that she was suspicious about the medical certificate but had not verified it’s authenticity. Though the applicant’s representative attempted to persuade the argument that Mr. Mokoka had wit drawn from the disciplinary hearing due to the lack of representation I am not inclined towards this argument since Mr. Mokoka had indeed participated in the disciplinary hearing until he was at cross examination. The only plausible inference that can be drawn is that Mr. Mokoka had left the proceedings because he might had found the cross examination intimidating and was reluctant to answer to the charges brought against him.

13. Mr. Mokoka testified on his own behalf that the Chairperson had insisted that he continue with the hearing. He insisted that he was forced to continue with the hearing but failed to suggest if had indeed protested or sought the Chairperson to allow him the opportunity to procure an alternative representative. His protest had apparently emerged to his non representation only whilst he was being cross examined by the respondent. Though the respondent failed to dispute Mr. Mokoka’s testimony in respect to the procedural issue I am still not persuaded to accept that the Chairperson had forced Mr. Mokoka to continue with the disciplinary hearing.

14. I am satisfied that the Chairperson at the hearing had indeed not verified the authenticity of the medical certificate, it is trite that a medical certificate is only prima facie proof and on it’s own is not absolute evidence of incapacity. It is then the onus on the applicant’s union to prove that the certificate is authentic given the consideration of the sequence of events which led to the prior postponements of the disciplinary hearing. I am of the opinion that it was the neglect of the union representative. Considering the indication by the union representative that the matter was too complex for him and that it was to be attended by another member of the union who had not been informed of the matter or indeed had any knowledge of the matter. Moreover I am indeed inclined to believe that Mr. Mokoka had been willing to continue with the disciplinary hearing and under the circumstances it cannot be found that the Chairperson’s ruling to continue was unreasonable. The Chairperson had indeed weighed the applicant’s right to representation as opposed to the provisions of the Act which requires for the expeditious resolution of disputes.

15. I find that the dismissal of the applicant is procedurally fair.

SUBSTANTIVE FAIRNESS

Charges 1 & 2

16. The respondent’s witness, Ms Mmelesi testified that she was contacted on 17 January 2011 by the applicant and offered a position at the school. Ms. Mmelesi assumed duties on 19 January 2011. She received a telephonic call on 22 February 2011 from the applicant, who had queried whether she had received her salary. Ms. Mmelesi. Apparently the applicant called from the District Office. She had not received a notification from her bank and therefore had no knowledge of the payment. Mr. Mokoka telephoned her again and informed her that she was indeed paid in the amount of R 8231.90. Mokoka had informed her that she was paid from 10 her salary for February 2011 was incorrect as she had been paid R 11000.00. On the same day she received a telephone call from an unidentified person indicating that he would come to school to collect the January salary. At school Mr. Mokoka approached whilst there was someone seated in a red bakkie. Mokoka informed her that the person in the bakkie was from the District Office and that they had wanted the entire remittance she had received for January 2011 as payment for her to continue her employ on a permanent basis. Ms. Mmelesi had refused to make any payment to either Mokoka or the other unidentified gentleman. She insisted that Mokoka had informed her that it was not possible to continue the working relationship and showed to her the CV’s of other educators.

17. At cross- examination Ms. Mmelesi confirmed that she was approached on 23 February 2011 to pay the money to Mokoka. She was unaware who the other gentleman was. She was indeed angry with Mokoka when she had left and quiet plausibly so. She denied that she was not happy with Mokoka since he had not renewed her contract of employment. She insisted that he had attempted to extort money from her.

18. Mr. Mokoka in his testimony in chief denied any knowledge of the incident and merely retorted that the respondent should have called in the other gentleman to testify as he was still in the employ of the respondent. At cross-examination Mr. Mokoka denied that he had contacted Ms. Mmelesi on 17 January 2011. He insisted that Ms. Mmelesi was supposed to commence work on 10 January 2011 and that she had arrived at work on 26 January 2011. He had become aware that Mmelesi had been paid on 3 February 2011 as he name appeared when he had gone to H R to check on his personal stuff. I am of the opinion that this is very convenient and far from plausible incident that Mokoka would become conveniently aware of Mmelesi’s payment. He nonetheless admits that he had told Mmelesi to return the money but failed to report the incident to the department. Hardly plausible if Mokoka had had the interest of the department at hand. He then insisted that he had written a letter to the department and shuffled around but still failing to produce it. He admitted that he taken departmental books when the school had closed down as he required the documents as evidence but still was not able to submit any document to the effect that he had informed the department of the overpayment.

19. Mr. Mokoka proved to be a deplorable witness. He was often evasive and sought to give long winded oirrelevant answers to the questions which were posed to him. He often shuffled for documents which he pretended to have had in his possession but in fact had not had. Moreover Mokoka removed material from the school to assist him with his case but failed to produce any such proof at the arbitration. I am persuaded that Mmelesi was a more credible witness than Mokoka was and that Mmelesi’s version is therefore more probable. I am not convinced that Mokoka had ever had the intention of informing the respondent of the overpayment to Mmelesi and indeed had therefore attempted to extort the money from Mmelesi. Mr. Mokoka had also failed to call in the other gentleman to testify that he had not been present on the date of the allegation. I am not satisfied that Mmelesi had concocted the version since her fixed term contract was not renewed. Mmelesi had needed the position and therefore had probably sought to continue working. It was not disputed by the applicant that he had not asked Mmelesi to leave. Besides Mokoka had not testified that Mmelesi had been disgruntled as a result of her fixed term contract not being renewed. He gave no plausible explanation as to why Mmelesi would make such an allegation. For the brief reasons stated above I am persuaded that Mokoka is indeed guilty of Charge 1 in that Mokoka had attempted to extort money from the educator to secure her a permanent post.

20. Mmelesi testified that she had signed her forms on 19 January 2011. Mokoka insisted that Mmelesi was supposed to start work on 10 January 2011 and that he had prepared the documentation in advance. He denied that he had spoken to her on 17 January 2011 or that she had commenced work on 19 January 2011 but failed to put this to Mmelesi. Mokoka insisted that he had spoken to Mmelesi in advance and hence had prepared the assumption of duty documentation in advance. Mmelesi was referred to pages 51 to 53 of the respondent’s bundle “Application for a Teaching Post” and confirmed that she had filled in the form on 19 January 2011 whilst Mokoka insisted that he had proactively signed and stamped the form on 10 January 2011 and that Mmelesi had commenced employ on 26 January 2011. Not the least probable as Mokoka could not just sign and stamp a blank form in anticipation of Mmlesi commencing work on 10 January 2011. Nothing emerged from the cross-examination Mmelsi in this regard. Mr. Perumal had signed Mmelesi’s assumption of duty on 19 January 2011. I find this highly unlikely as indeed Mmelesi signed her application on 19 January 2011 therefore it is plausible that Mr. Perumal had signed her assumption of duty on 19 January 2011 tough Mokoka signed the document indicating 10 January 2011. These dates corroborate the date that Mmelesi insists that she had commenced work. It is therefore highly unlikely that Mmelesi had commenced work on 26 January 2011 as per the applicant’s version and that Mmelesi had promised to commence work on 10 January 2011.

21. Mr. Mokoka’s version is highly improbable and therefore cannot be accepted. Mr. Mokoka is indeed guilty on Charge 2 in that he had indicated on the assumption of duty form as 10 January 2011 whilst Mmelesi had commenced work on 19 January 2011.

Charge 3

22. Mmelesi testified that whilst for the duration of her employ in approximately 6 weeks Mokoka had not taught any classes. Mmelesi was landed with both classes grades 1to 3 and grades 4to 7. Mokoka insisted that he was baffled as he had won awards. Had he not have been teaching then department would have surely known. He had got an award for being the best principal. Whilst Ms. Mmelesi testified that she had to combine the grades 1 to 7 and Mokoka would come to school once or twice a week and would not enter the classroom. By putting to the witness that she was disgruntled since she had to combine the classes is in my opinion an admission by the applicant that indeed the classes were combined due to the lack of Mokoka having to teach. It was Mmelesi’s testimony that Mokoka had offered her the position to teach grades 1 to 3 which also was not disputed by the applicant. It was testified by Mr. Perumal that the awards received by the applicant was for the period 2009/2010 whilst Mokoka was charged for not teaching for the period 2010/2011.

23. Ms. Maneli who testified for the respondent had indeed admitted that whilst she had worked at Itumeleng Primary School since 2006 till December 2010, Mokoka had taught grades 4 to 7 whilst she had taught grades 1to 3. I am inclined to accept that Mokoka had indeed taught grades 4 to 7 till December 2010. However Ms. Pearl the respondent’s fourth witness insisted that during the period of her employ at the school 2 March 2011 till 19 April 2011, Mokoka had not taught at the school. Her testimony covers the period of the charge when Mokoka had not taught classes at the school. Perumal confirmed that in terms of policy all Principals had to teach though it varied from school to school. Perumal had conceded that the District Certificate awarded to Mokoka had indeed been for the period 2010/ 2011.

24. Mr. Moreki, the respondent’s witness and School Governing Body Chairperson testified that there was in fact a meeting called by parents of the school and the issue in respect of children who had been walking about during school hours was raised. Mokoka responded that he was the Principal and did not teach children. Though it was put to Moreki that Mokoka would deny speaking to the parents and informing them that it was not the Principal’s duty to teach. Mr. Mokoka had failed to testify to the same. I therefore am inclined to accept the testimonies of Moreki, Mmelesi and Pearl that Mokoka had not taught class at least for the period since January 2011 till February 2011. I find the applicant guilty on charge 3.

Charge 4

25. In respect of the charge of using conditional grants specific for feeding learners was used for other expenditure. At the onset I must state the respondent had gone through great lengths to prove this Charge when in fact much of the testimony was in my opinion unnecessary. It is essentially for me to decide whether Mokoka had used funds expressly allocated for feeding learners from the NSNP account to the Section 21 account. The NSNP account is specific for the children’s feeding scheme whilst the Section 21 account is for daily school operations.

26. Mr. van der Nest, the respondent’s witness confirmed receipt of the documents dropped off to him by Mokoka. No evidence in respect of the said charge was extrapolated from him.

27. Mr. Moreki testified that as Chairperson of the Governing Body Mokoka would send him cheques to sign. He had not known of any decision by the School Governing Body to transfer funds from the NSNP account to the Section 21 account. At cross-examination he denied that there were any meetings in respect to finances being discussed. Mr. Perumal had merely fetched the box of documents from the auditors and could not add value to the testimony of the respondent. Ms. Maneli had not spoken to Charge as well save to suggest that she often signed blank cheques, which indeed is not relevant to this Charge. In fact the only person that gave impetus to the respondent’s case in respect of this Charge was the applicant himself.

28. Mr. Mokoka testified that the NSNP budget would be remitted quarterly and was less than R 1000. He would have to pay the cook R 700 and was left with the rest to buy supplies. Therefore he insisted that the respondent had sent a circular on page 58 allowing the transfer of funds from one account to another. He referred to the circular on page 58. The circular was dated 21 May 2010 and authorized schools to transfer funds from Section 21 accounts to NSNP accounts since the respondent was implementing a new accounting system. Mr. Mokkoka’s testimony falls flat in lieu of the fact the circular speaks to transfer of funds from Section 21 accounts to NSNP accounts and not the other way around whilst Mr. Mokoka was charged for the transfer of NSNP funds to the Section 21 account. Mr. Mokoka’s explanation therefore cannot be accepted.

29. At cross-examination Mr. Mokoka was led through evidence about the School Governing Body extensively and I am not persuaded as to the relevance thereof. It emerged however that Mr. Mokoka was transferring funds from NSNP to Section 21 account and used the circular as his justification for doing so. Mr Mokoka’s version is not probable for two reasons; firstly the circular allowed for the transfer of funds from Section 21 to NSNP accounts and secondly Makoka’s earlier testimony was that the NSNP account had not had sufficient funds yet he would transfer from NSNP account to the Section 21 account. He admitted that he had unilaterally made the decision to transfer the funds as stated above.

30. Mr. Mokoka did not dispute that he had not transferred funds from the NSNP to Section 21 but attempted to justify same by using the circular as his mandate when in fact the circular suggested the movement of funds from Section 21 to NSNP. In this Charge the applicant is found guilty.

31. The applicant, for the brief reasons mentioned hereinabove is found guilty of all four charges brought against him.

32. In relation to the issue of consistency it was Mokoka’s testimony that the gentleman who had purported to have accompanied him was still in the employ of the respondent. There was no argument or evidence in relation to this issue forwarded by the respondent. It is not before me if Mr. Lekhona was disciplined by the respondent nor is it before me that Lekohana was charged for exactly the same four charges as the applicant. Seemingly, Mr. Lekohana was only implicated in the 1st charge and therefore a comparison of consistency cannot be drawn as to why Mr. Lekohana is still in the employ of the respondent whilst Mr. Mokoka was found guilty of four charges of misconduct. I am persuaded that the parity principle is a fundamental principle however the Labour Court has ruled that indeed “apples must be compared with apples”. In any event Mr. Mokoka insisted that Mr. Lekohana had not accompanied him to extort money from Mmelesi. This version I am willing to accept as the other gentleman could not be identified by Mmelesi.

33. In view of the above I am inclined to find that the respondent was not inconsistent in it’s application of discipline.

34. The dismissal of the applicant, Mr. Mokoka is found to have been substantively fair.

AWARD

The dismissal of the applicant, Mr. E Mokoka is found to have been both procedurally and substantively fair.
The dismissal of the applicant is upheld.
There is no order as to costs.
Signed at Kimberley on this 25th day of February 2013.

ELRC PANELLIST

SHIRAZ MAHOMED OSMAN