In the matter between

PEU obo MOSOME-MASALA Applicant

And

HOD, DEPARTMENT OF EDUCATION – NORTH-WEST Respondent

ARBITRATOR: Justice Mthombeni
HEARD: 05 May 2017
FINALISED: 05 May 2017
DELIVERED: 22 May 2017
SUMMARY: Labour Relations Act 66 of 1996 – Dismissal Related to Misconduct – LRA s191 (1) [191 (5) (a)] fairness of a dismissal – Employment of Educators Act 76 of 1998 (Schedule 2 Item 9 Sub Item 2) the educator or the employer must, within five working days of receiving notice of the final outcome of a disciplinary hearing, submit the appeal form to the Member of the Executive Council or the Minister, as the case may be – the words ‘shall’ or ‘must’ indicate a peremptory provision – dismissal procedurally unfair – compensation awarded.

DETAILS OF HEARING AND REPRESENTATION
1. This is an award in respect of the arbitration process held on 05 May 2017 at Madibeng Area Project Office North West Department of Education in Brits. The Applicant is Ms Morongwa Mosome – Mosala, who at the time of her dismissal was a Deputy Principal at Komane Primary School in Bojanala District Office. She was represented by Mr Joseph Munengwane, an official from Professional Educators Union.
2. The respondent is the Provincial Head of Department of the North West Department of Education, who in terms of section 3 of the Employment of Educators Act 76 of 1998 is the applicant’s employer. The respondent was represented by Mr T Monkwe, a DESD (Labour Relations).
3. The evidence was finalised on 05 May 2017. Both parties submitted written closing arguments on 12 May 2017. The Applicant handed in a bundle of documents comprised of 15 pages. The Respondent handed in a bundle of documents comprised of 29 pages. The proceedings were digitally recorded.

THE ISSUE TO BE DETERMINED
4. I have to determine whether the applicant’s dismissal was substantively and procedurally fair or not, and the appropriate relief in the circumstances.

BACKGROUND TO THE ISSUE IN DISPUTE
6. This is a dismissal dispute. The Applicant was employed by the Respondent for 23 years. She was a school principal for 6 years. At the time of her dismissal she earned a basic salary of R34 165.50 per month. Following a formal disciplinary hearing finalised on 06 August 2015 and after the applicant pleaded guilty to allegations levelled against her, she was demoted from a principal to a deputy principal position as a sanction recommended by the presiding officer. The sanction of demotion was communicated to the Applicant in writing on 08 September 2016. On 28 September 2016 (i.e. 14 working days after demotion as a sanction was communicated to parties), a letter (from the office of the Director: Bojanala District with CH Ramagofu noted for enquiries) was written to the Applicant to the effect that she would be transferred due to operational requirements from Obed More Special School, where she was a principal, to Komane Primary School in Letlhabile Area Office, where she would assume duties as a deputy principal.
7. On 30 September 2016 (i.e. 16 working days after demotion was communicated to parties) the Applicant accepted her demotion and the subsequent transfer thereof to a new school. On 01 October 2016 she assumed her position as a deputy principal at Komane Primary School. On 26 October 2016 the Applicant was given a copy of the outcome of the appeal by the Head of Department (HOD) against the sanction of demotion that was recommended by the presiding officer. Her sanction of demotion, which she had accepted, was substituted with that of dismissal as requested by the HOD. She was surprised about the appeal outcome as she was not aware of the HOD’s intention to appeal and was not given an opportunity to make any representations.
8. It is common cause that the HOD did not inform the applicant about its intentions to appeal and that the HOD’s appeal was not lodged within five days of receiving notice of the final outcome of a disciplinary hearing as per Item 9 (2) of Schedule 2 Disciplinary Code and Procedures for Educators (the Code) contained in the Employment of Educators Act 76 of 1998 (the Act). The HOD’s appeal was lodged on 21 September 2016, that is, 9 working days after receipt of the hearing outcome. On correct reading the appeal is actually 4 working days late when one excludes the 5 working days prescribed by the Code. The Respondent did not tender any reasons for its failure or inability to notify the Applicant about the appeal and/or reasons for the lateness of its appeal except for submissions that the Applicant was aware of the Respondent’s right to appeal as contained in the Code and that the Code was a guideline therefore its provisions not peremptory but merely directive. The Respondent further submitted that non-compliance with the prescribed time frames did not nullify the appeal. The Applicant contends that Item 9 (2) of the Code is peremptory and non-compliance with the provision renders her dismissal unfair.
9. After narrowing down the issues I was required to determine the fairness of the Respondent’s appeal to the Applicant and appropriate relief in the circumstances. I was also requested to determine the appropriateness of dismissal as a sanction. The parties by consent agreed to submit heads of argument regarding the fairness of the Respondent’s appeal. The Applicant was the only party that led evidence in the process to the effect that dismissal was not the appropriate sanction. The Respondent conducted cross examination only and it did not tender or lead any evidence during the process on the appropriateness of dismissal. The Respondent was duly cautioned about the implications of a party’s failure to lead evidence in rebuttal that such evidence will be accepted as credible as it was not challenged. However, heads of argument regarding the fairness of the Respondent’s appeal and appropriateness of dismissal as a sanction were received from both parties.

SURVEY OF PARTIES’ SUBMISSIONS AND ARGUMENTS
10. In terms of section 138 (7) (a) of the Labour Relations Act 66 of 1995 (the LRA) I am required to issue an arbitration award with brief reasons thereof. In view of the above provision I do not propose to offer an exhaustive survey of all the evidence and argument led at the arbitration but mainly submissions/evidence that informed my findings. Documents submitted would be referred to if and where necessary in my discussion of the issues raised by parties.

Evidence on behalf of the Applicant
Mrs Morongwa Mosome-Masala testified as follows regarding the Respondent’s appeal:
11. She was perplexed by an outcome of dismissal purportedly as a result of the Respondent’s appeal of the presiding officer’s recommended sanction of demotion. She was not aware that the HOD had lodged an appeal as the process of implementing her demotion was already under way because she had accepted the presiding officer’s sanction in writing. She was given a transfer letter to her new school and on 01 October 2016 she assumed duty. She was not given an opportunity to make representations. The outcome of the appeal letter was not even addressed to her but to the Respondent, she was only given a copy. The Respondent’s appeal was unfair to her for lack of compliance with the prescribed time frames in terms of Item 9 (2) of the Code. Item 9 (2) of the Code is peremptory.
12. Regarding dismissal as inappropriate she testified as follows: the presiding officer recommended demotion after applying his mind on both mitigating and aggravating circumstances. She accepted the sanction and it was implemented. At the time of dismissal, she was already at her new school as a deputy principal. It was not understandable how the Respondent could implement the sanction from a hearing when the HOD’s office had appealed such a sanction. She regards her dismissal to be both procedurally and substantively unfair.

Mr Johannes M Masekoameng testified as follows:
13. He works for the North West Provincial Department of Education as a Deputy Chief Education Specialist. He is responsible for management of employee conduct which entails conducting disciplinary hearings and related matters. He recommended demotion as an appropriate sanction after consideration of mitigating and aggravating circumstances. His recommendation was communicated to the parties on 08 September 2016. It is a mandatory and established practice that the appeal should be lodged within 5 working days after receiving a written outcome in relation to a sanction. Deviation from prescribed procedure would be unfair.

Evidence on behalf of the Respondent
Mr T Monkwe submitted the following on heads of argument regarding fairness of the Respondent’s appeal:
14. The Respondent’s appeal was 9 working days late. Item 9 (2) of the Code does not suggest that any appeal made outside the prescribed time frame must be nullified. Item 9 (2) of the Code is not peremptory but directory, it is only a guide. Non-compliance to time frames does not nullify the appeal application. Appealing after prescribed time frames is not unfair. The Applicant did not challenge the presiding officer’s sanction given that it was issued after 12 days instead of 5 days prescribed by Item 7 (18) of the Code because time frames are just a directive.
15. In Waverley Blankets v CCMA (2000) ZALC 79 (12 August 2000) (the Waverley case) the court argued that in matters where arbitration awards were rendered late it appears that the attitude adopted by the Labour Court was that the provisions contained in section 138 of the LRA were intended to be guidelines and not imperative (sic).
16. In Highveld District Council v CCMA (2002) 12 BLLR 1158 (LAC) (the Highveld case) the Court held that the mere fact that a procedure is an agreed upon one does not, however, make it fair. By the same token, the fact that an agreed procedure was not followed does not in itself mean that the procedure actually followed was unfair (sic). The MEC accepted the HOD’s appeal despite its lateness because time frames were a guideline.
17. The Applicant pleaded guilty to all charges and the presiding officer’s sanction was in no doubt shocking and could put the department in a very precarious situation of been blamed to be inconsistent. Given the gravity of the misconduct in view of Item 3 (4) of the Code of Good Practice: Dismissal (Schedule of the LRA) and the position of the Applicant at the school, dismissal was warranted.

ANALYSIS OF EVIDENCE AND ARGUMENT
18. Section 192 (1) and (2) of the LRA provides that, “in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. If the existence of the dismissal is established, the employer must prove that the dismissal is fair. What is fair depends upon the circumstances of a particular case and essentially involves a value judgment (NEHAWU v University of Cape Town (2003) 24 ILJ 95 (CC) par 33).
19. Item 9 (1) and (2) of the Code provides as follows:
(1) An educator or an employer may appeal against a finding or sanction by making an application in accordance with Form E attached to this Schedule.
(2) The educator or the employer must, within five working days of receiving notice of the final outcome of a disciplinary hearing, submit the appeal form to the Member of the Executive Council or the Minister, as the case may be.
20. The Respondent submitted that Item 9 (2) above is merely directory which does not require strict compliance, and deviation from it does not nullify the process that ensued. The Applicant argued that Item 9 (2) was obligatory and non-compliance with it renders a pre-dismissal process unfair.
21. A statutory provision that requires exact compliance is peremptory. Failure to comply with a peremptory provision will leave the ensuing act (action or conduct) null and void. A statutory provision requiring substantial compliance only, is merely directory. Non-compliance with a directory provision will not result in ensuing acts being null and void. The Court in Messenger of the Magistrates Court, Durban v Pillay 1952 (3) SA 678 (A) held that a word or words with an imperative or affirmative character, for example, the words ‘shall’ or ‘must’ indicate a peremptory provision. In Bezuidenhout v AA Mutual Insurance Association Ltd 1978 (1) SA 703 (A) the court found that the use of ‘shall/must’ is a strong indication that the provision is peremptory. Words like ‘may’ indicate a discretion and will be interpreted as being directory, unless the purpose of the provision indicates otherwise (Amalgamated Packaging Industries v Hutt 1975 (4) SA 943 (A)).
22. Item 9 (2) of the Code uses the word ‘must’ which in view of the above discourse makes it a peremptory provision, thereby requiring compliance with it.
23. In arguing the directory nature of Item 9 (2) of the Code, the Respondent’s representative relied on Highveld and Waverley cases above. It is important to point out that the above cases are distinguishable from the case in this matter. The Waverley case dealt with grounds for review of an award, specifically unreasonable delay of the arbitrator in rendering his award in breach of section 138 (7) and (8) of the Labour Relations Act 66 of 1995 (the LRA). In the Waverley case the court never held that section 138 (7) and (8) of the LRA were a guideline and therefore merely directory as submitted by the Respondent’s representative. The Respondent’s representative never gave reasons as to why the Applicant was not notified about the appeal and reasons for its lateness except a submission to the effect that Item 9 (2) of the Code is directory and not peremptory.
24. The Highveld case dealt with a protracted suspension of an employee in contravention of clause 2.7 (2) (c) of the Senior Management Service Handbook (SMS Handbook) which required a disciplinary hearing to be held within 60 days from the date of the applicant’s suspension. The Court above declared clause 2.7 (2) (c) of the SMS handbook as peremptory as far as suspension was concerned but not the ensuing disciplinary action. The Court in casu further held that when deciding whether a particular procedure was fair, the tribunal judging the fairness must scrutinize the procedure actually followed. It must decide whether in all the circumstances the procedure was fair. In this matter the Applicant was not notified about the Respondent’s appeal and was further not given an opportunity to make representations or an indication that she does not wish to submit any representations. If an appeal is held, it must be conducted fairly, otherwise that appeal may be rendered unfair. An appeal hearing from which the employee was excluded has been ruled unfair unless a disciplinary code permitted such an exclusion (Mekgoe v Standard Bank of SA (1997) 4 BLLR (CCMA)).
25. A dismissal for misconduct must follow a fair procedure before taking the decision to dismiss the employee. The Court in SAMWU obo Abrahams & others v City of Cape Town (2008) 7 BLLR 700 (LC) held that the idea that disciplinary codes are ‘merely guidelines’ cannot be used as a defence to wholesale flouting of the requirements of a code. In Denel (Pty) Ltd v Voster (2004) 25 ILJ 659 (SCA) (the Denel case) the court rejected an argument that the process followed, while not complying with the code, was nevertheless fair. The Court above further regarded as critical the fact that the disciplinary code had been expressly incorporated in the employee’s contract of employment. The applicant in this matter is employed in terms of the Employment of Educators Act 76 of 1998 (the Act). Schedule 2 (Disciplinary Code and Procedures for Educators) forms an integral part of the Act and the Applicant’s employment contract. In essence the employer is bound by its code and policies if they form part of the employment contract.
26. An employer who wishes to exercise a right to appeal a sanction imposed by the presiding officer of a disciplinary hearing should warn the employee that the appeal authority may increase the sanction and afford the employee an opportunity to present argument as to why the sanction must not be increased (SARS v CCMA and others (2014) 1 BLLR 44 (LAC); Opperman v CCMA and others (2017) 38 ILJ 242 (LC)). In this matter the Respondent lodged an appeal and did not make the Applicant aware of such an appeal and the Applicant was not afforded an opportunity to say anything about the appeal.
27. Mr Johannes Masekoameng testified that it was policy and an established practice within the North West Department of Education that appeals are lodged within five working days upon receipt of the outcome of the disciplinary hearing and further that the employee should always be given an opportunity to make representations. His testimony was not rebutted or cross-examined by the Respondent’s representative, it remained unchallenged. In view of the above, I accordingly find that the dismissal of the Applicant was procedurally unfair.
28. The Applicant’s argument regarding the appropriateness of dismissal as a sanction was mainly around an assertion that she accepted the demotion as recommended by the presiding officer and that it was implemented by the Respondent. The Respondent’s representative argued that her demotion was not yet effected on the persal system at the time of her dismissal. It also centred around the fact that she was not given an opportunity to make representations. The Respondent argued that the Applicant pleaded guilty to very serious acts of misconduct which warranted dismissal in view of Item 3 (4) of the Code of Good Practice: Dismissal of the LRA. The Applicant has wilfully mismanaged the finances of the school and wilfully caused damage and loss to the property of the school/state. The Respondent further argued that dismissal in this instance was consistently applied.
29. The Court in County Fair Foods (Pty) & others v CCMA (1999) 20 ILJ 1701 (LAC) held in obiter dictum that, it was within the province of the employer to set the standard of conduct to be observed by its employees and to determine the sanction with which non-compliance will be visited, interference therewith is only justified in the case of unreasonableness and unfairness. Therefore, the appropriateness of dismissal as a sanction is dependent primarily on the seriousness of the misconduct and its impact on the employment relationship (item 3 (4) of the Code of Good Practice: Dismissal). Given the evidence before me I cannot find any reason to interfere with the Respondent’s sanction of dismissal.
30. In determining a finding in this matter I took cognisance of fairness and all circumstances of this case as envisaged in Sidumo v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC) at par 75. I was also guided by the CCMA Guidelines on Misconduct Arbitrations. I accordingly find that the dismissal of the Applicant was substantively fair but procedurally unfair.
31. In awarding compensation, I considered the fact that the dismissal is only procedurally unfair to the extent that the Respondent did not afford the Applicant an opportunity to make representations when appealing the presiding officer’s sanction of demotion. I also considered that the Applicant was not innocent but guilty of alleged misconduct. Therefore, one (1) months’ remuneration calculated at the Applicant’s rate of remuneration at the date of her dismissal would be a just and equitable compensation.

AWARD
In the premises I make the following order and award:
32. The dismissal of the Applicant was substantively fair but procedurally unfair.
33. The Respondent, North West Department of Education, is ordered to pay the Applicant, Mrs Morongwa Mosome-Masala, an amount of R34 165.50 (Thirty-Four Thousand One Hundred and Sixty-Five Rand and Fifty Cents) minus deductions the Respondent is in terms of the law obliged or entitled to make.
34. The amount mentioned in paragraph 33 should be payable within 30 days upon receipt of this award by the Respondent.
35. No order as to costs.

Justice Mthombeni
ELRC Panellist
22 May 2017