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27 November 2024 – PSES712-19/20WC

Case Number: PSES712-19/20WC
Arbitrator: Retief Olivier
Date of Award: 27 November 2024

L Mjikeliso Applicant

and

Western Cape Education Department Respondent

Applicant representative:   Adv Z Mdana 


Respondent Representative:  K Smith

DETAILS OF HEARING AND REPRESENTATION

  1. The arbitration hearing took place at the offices of the Western Cape Education Department (WCED), 1 North Warf Square, Cape Town, on 27 June 2022, 8 July 2022, 20 September 2022, 21 September 2022, 30 November 2024, 14 February 2023, 31 May 2023, 10 October 2023, 8 May 2024, and virtually on 26 June 2024, 18 August 2024 and 30 September The applicant Ms Lumka Mjikeliso was represented by Adv Zinzi Mdana, and the respondent the WCED was initially represented by Mr Lazola Mbotoloshi and them by Ms Krisston Smith, labour relations official. It was also agreed that written closing arguments would be submitted and was received by 24 October 2024.

ISSUE TO BE DECIDED

  1. The Applicant referred the matter to the ELRC as an unfair dismissal dispute. The Applicant was found guilty following a disciplinary hearing first scheduled for 23 August 2019 and then continued further. The applicant referred a dispute to the ELRC and an arbitration hearing was conducted before Commissioner Reza Slamang. He did not complete the arbitration process and the matter was then rescheduled for an arbitration before myself as the arbitrator.
  2. The applicant was charged with the following offence:

Charge 1:
It is alleged that on or about 18 April 2018, the Applicant committed an act of dishonesty by writing on EFT requisition number 342 the amount of R14 383,07 for payment to Masumpa Security Services for services rendered at school during March 2018 for the school holiday period by only attaching one invoice to the requisition form, without any supporting documentation.
Alternative to Charge 1:
The Applicant allegedly failed to comply with the Basic Financial Manual for Schools (BFMS) without sourcing three comparative quotations for the aforementioned transaction.

Charge 2:
is alleged that on or about 7 August 2018 the Applicant failed to carry out a lawful order or a routine instruction without just and reasonable cause when given an instruction by Mr B Jeftha, WCED School Safety Official to refrain from making payment to Masumpa Security Services for services rendered at school during the June 2018 school holidays, however, drafted the requisition and made EFT payments amounting to R29 000,00 to the company.

Charge 3:
It is alleged that on or about 28 September 2018 the Applicant wilfully or negligently mismanaged the finances of Vuyiseko Secondary School by failing to obtain three comparative quotations when she requisitioned EFT number 417 amounting to R160 342,82, to a service provider named Zomzi Renovations CC for the payment of school stationery.

Charge 4:
It is alleged that on or about 19 September 2018, the Applicant wilfully or negligently mismanaged the finances of Vuyiseko Secondary School by approving an EFT payment amounting to R29 223,00 to the Lord Charles Hotel for the matric ball without sourcing three comparative quotations.
Alternative to Charge 4:
It is alleged that on or about 19 September 2018, the Applicant failed to comply with the BFMS by approving an EFT payment amounting to R29 223,00 to NH: The Lord Charles Hotel for the matric ball without sourcing three comparative quotations.

Charge 5:
It is alleged that on or about 28 September 2018, the Applicant committed an act of dishonesty by confirming on the EFT requisition form that supporting documentation had been attached for the amount of R20 000,00 owing to Ms Mbunge, however, said attachments contained different beneficiary details to receive payment.

Charge 6:
It is alleged that during September 2018, the Applicant misused her position at Vuyiseko Secondary School to appoint Mr Mgudlwa, an unqualified educator, to teach Life Orientation to Grade 12 learners without the necessary approval.

Charge 7:
It is alleged that during September 2018 the Applicant failed to carry out a lawful order or a routine instruction without just and reasonable cause after Ms Senosi, Circuit Manager instructed her to hand in all school resources, and/or school laptop with serial number NKW55SU1005C0123 and/or school keys, and learner profiles, and or portfolios, and/or assessments to Mr Mahleza, the Acting Deputy Principal by 28 September 2018.

Charge 8:
During October 2018 it was alleged that whilst on suspension for three months without pay, the Applicant failed to carry out a lawful order or routine instruction without just or reasonable cause given by Ms Senosi, to not enter the school premises and/or engage in school activities during said suspension.

  1. The applicant Ms Mjikeliso, the Applicant, pleaded not guilty to the charges, submitting that the dismissal was both substantively and procedurally unfair. I must therefore decide whether the sanction of dismissal was fair, on both procedural and substantive grounds.

BACKGROUND TO THE ISSUE

  1. The applicant Ms Mkijeliso had been employed as an educator with the WCED at Vuyiseka Senior Secondary High School since 2008. She was employed as a Life Science and Physical Science Educator where she was also the Head of Department (HoD). She was charged with the offences as noted, and following the initial scheduling of the disciplinary hearing in August 2019, the hearing commenced in September 2019. The applicant failed to attend the hearing submitting that she was medically incapacitated, as she had submitted a medical certificate, and she was subsequently dismissed on 20 October 2019, following the conclusion of the disciplinary hearing.
  2. It was also noted that prior to her dismissal in October 2019, she was charged with assaulting of a fellow teacher and a disciplinary hearing was held in June and July 2018. The applicant was found guilty and was issued with a final written warning, valid for six months as from August 2018, and suspension without pay for three months. It was effected as from 1 October 2018 to 31 December 2018 following discussions between the applicant and the WCED that the suspension not be implemented immediately, but to only start on 1 October 2018, the suspension only effected for the fourth term of the school year.
  3. During the period in which these alleged offences occurred the previous principal Mr Adolf had left the school and the applicant as an HoD and another teacher, Mr Mahleza, acted as the senior managers at the school. They were not appointed as acting principals but were acting in the position of manager of the school in place of the principal. Assuming these senior management duties, the applicant signed documents, and was authorizing and approving transactions on requisition forms as the Principal/Manager of the school, and presented it for payment.
  4. It was alleged that in instances as noted in charges 1, 3, 4, and 5 that she either submitted requisitions without the required documentation, such as three comparative quotations, and/or without required supporting documentation and requesting payments, insisting that the payments must be implemented. In some instances, it was alleged that she pressurized and threatened the bursar to affect payments, even where there was an instruction from the WCED not to affect payments. In relation to charge 2 it was alleged she failed to carry out a lawful instruction of the WCED not to pay for security services as it was not properly authorized and there were no proper quotations, only an invoice. In relation to charge 4 it was also alleged that payment was approved and requisitions submitted for an amount that exceeded the approved budget for the matric ball, and was paid with WCED norms and standards funds, which is not allowed. In relation to charge 5 and 6 it was alleged that she acted dishonestly, providing a requisition for payment, attaching documentation for payment for a person who was not the person who she stated should be paid for the service provided, and connected to charge 6 was the allegation that she approved payment to an unqualified educator, who was not appointed by the WCED. In charges 7 it was alleged that she again failed to carry out the lawful order or instruction to hand over resources on the last date that she was at school before her suspension was to be implemented, and connected to charge 8, the allegation that she was insubordinate to by engaging in school activities during three months suspension without pay, when specifically instructed not to do so.
  5. The applicant denied these allegations, insisting that in all instances she provided the correct documentation and comparative quotations and submitted that if there were irregularities, the payments should not have been implemented and payment refused. Payments were, however, not refused in terms of the requisitions submitted. She submitted she was not the person responsible for irregularities in payments. She denied that threats were made against the school or the employees or the Department in respect of demands for payments. She also insisted that she always had the necessary authorization to submit these requisitions and she denied that in any way acted insubordinately by refusing instructions. She further indicated that in these instances where requisitions were submitted for payment, the SGB had approved either the service providers or payments for resources that were purchased, and that all was in order. However, minutes of meetings and/or decisions of the SGB were not presented as evidence in any of the instances.

SURVEY OF EVIDENCE AND ARGUMENT

  1. Each party called a number of witnesses to testify and submitted comprehensive written closing arguments. Bundles of documents were also submitted as evidence. Extensive evidence was led and cross examination conducted. The employer called the following witnesses to testify on the charges below:
    10.1 Ms Nceda, the Bursar/Finance Officer; and
    10.2 Mr Mahleza, Acting Deputy Principal; and
    10.3 Mr B Jeftha, School Safety Officer; and
    10.4 Ms A Bianca, School Finance and Records Officer; and
    10.5 Ms A Jodo, Educator; and
    10.6 Ms I Senosi, District Director.
  2. The applicant called the following witnesses:
    11.1 Ms L Mjikeliso – Applicant
    11.2 Mr G Mpikashe – SGB Chairperson.
    11.3 Ms A Majola – Educator
  3. I am not repeating all the detailed evidence that was presented by the parties’ witnesses, it is all on record. Both parties also submitted substantive documentary evidence in their bundles. Although I have considered all the evidence and arguments, I am only referring to those aspects relevant to determine the dispute and brief summaries of evidence, as I am required in terms of sec 138(7) of the LRA to provide an award with brief reasons.

Employer’s version:

  1. Ms Agnes Jodo was the first witness to testify, and specifically in relation to charge 8, relating to insubordination. Key aspect of her evidence was that she was aware that the applicant was served with a suspension letter, starting on 1 October 2018, yet on 20 October 2018, and the applicant attended a strategic planning session, in spite of the suspension.
  2. Mr Maitice Mahleza, acting deputy principal, testified about charges 2, 6, 7 and 8. Regarding charge 2 to relating to insubordination and an instruction from Mr Brian Jaftha not to pay a particular service provider Massumpa Security Services, he confirmed that an email was sent to the applicant, instructing the applicant not to make such a payment, as the documentation was incomplete and the invoice itself was questioned, but the applicant nevertheless requested payment. Regarding charge 6 he stated applicant appointed Mr Mgudlwa, and he was not appointed as an SGB educator.
  3. Regarding charge 7 he confirmed that Ms Senosi issued the applicant the suspension letter, and instructed the applicant to hand over all resources of the school to himself as acting deputy principal by not later than the 28th of September 2018, but the applicant failed to do so. He vehemently denied that he had left the school early and that she had handed over the resources to him as instructed. Regarding charge 8 he also confirmed that the applicant, in spite of the suspension letter, on came to the school and on two occasions, to a school meeting on 5 October 2018 and 20 October 2018 to the strategic planning session. Regarding charge 6 he testified that Mr Mgudlwa came to the school during the school holidays in June/July 2018 as a tutor, but stayed on at the school, assisting the applicant in life sciences classes in grade 12 classes. He was not a qualified teacher and was appointed by either of the SGB, as there were no SGB positions, nor the WCED. He could not confirm who appointed him.
  4. The 3rd witness Ms Mavis Nceda stated that she was the bursar at the school responsible with finance issues, and that she received requisitions for payments. She stated the applicant never submitted three comparative quotations, despite initiating the requisition and further knowing that she was responsible for attaching the documents and initiating the requisition. This was in relation to charge 1, regarding the payment for Masumapa security services, as well as charge 3 relating to the requisition for stationary, also noting that the requisition was done on the 28th of September, with the quotation sent on 26 September and the invoice already delivered on the 27th of September. She also stated she was threatened to make the payments. Regarding charge 2 she testified that she forwarded the email from Mr Brian Jeptha to the applicant in which the school and the applicant was instructed not to make a payment to Masumpa Security, but she still went ahead to request the payment. Regarding charge 4 the applicant also did not supply three comparative quotations for the requisition for the matric ball. She also testified that Ms Mjikeliso signed and authorized it as the principal on the requisition form for this particular transaction. Regarding charges 5 and 6 she stated the applicant requested a payment for an educator, Mr Mdudlwa, whilst the person was not appointed as an educator by the WCED, nor was he appointed by the SGB.
  5. Regarding the payments to Masumpa Security Services she said she had called Ms Senosi at the WCED about the requisitions and the only reason why Ms Senosi allowed her to release the payments was due to receiving threats on her life from Mr Masumpa and Ms Belani, and SGB member, both of who had come to the school to demand payment.
  6. Ms Andrea Bianchi, school finance and records officer for the WCED Metro South district, noting the five payments made from requisition submitted by the applicant, relating to charges 1 to 5, stated all were above R 10 000 and was not done in accordance with the financial prescriptions of the WCED. She also noted that training had been conducted in 2018 and that applicant had also attended these training sessions, and as acting principal should be aware of the financial prescripts. She failed to adhere to these prescripts, resulting in irregular payments. She also confirmed that during 2018 there were no SGB educators appointed at the school by the SGB.
  7. Mr Brian Jeftha, WCED School safety coordinator in the Metro South, testified about the instructions that he issued to the school and to the applicant specifically around relating to the security services provided during the school holiday, and about the requirements for approving a security company noting that Masumpa Security Services did not meet the requirements for appointment. He noted he had already informed the school before the April 2018 holiday that the documents were incomplete, and again regarding the July 2018 holiday.
  8. He specifically noted in his email that despite meeting with the principal, the safety committee of which the applicant was a member, he again received incomplete documentation. He also indicated that he would have the company investigated for suspected fraud. In spite of this letter being sent to the applicant, she submitted the requisition for payment to Masumpa Security Services and had not headed his concerns. There was no approval letter from the WCED regarding the services and payment for Masumpa Security Services. He also submitted that the applicant was aware of this as she had signed the service level agreement between the school and the WCED regarding security services.
  9. Ms Senosi, Acting District Director for Metro South, the employer’s final witness, testified in relation to charge 1 the applicant never submitted three comparative quotations, despite initiating the requisition and further knowing that she was responsible for attaching the documentation. What the applicant did was in fact provide an invoice from the service provider, once services had already been rendered. She also questioned the authority with which the applicant submitted the requisitions. In relation to charge 2 she stated that the applicant was aware of the email from Mr Jeftha beforehand, as she had visited the school before the payment was made and reminded the applicant of the email stating that the service provider cannot be paid. She observed that in discussions with the applicant, she was well aware of the contents of the emails, which refutes her version of being unaware of the email. With regard to charge 3 she also testified that there was only one quotation provided, from Zomzi Renovations CC, received on the day before their invoice was submitted, and the other two quotations had only been received from the applicant during October 2018, after Zomzi had already been paid. These quotations were provided after the services being rendered, which confirmed Ms Nceda’s testimony. Nothe Trading’s quotation was received on 15 October 2018 and Cape Book and College Supplies on 11 October 2018. No SGB meeting has been held to approve a quotation from Zozi.
  10. Regarding charge 4 relating to the matric ball, she also confirmed that there were not three competitive quotations, only an invoice, and that she discussed this with the applicant and indicated to her that it exceeded the budget of R30,000-00. She confirmed that she advised Ms Nceda to do the payment as requested because it was on the day of the Matric Ball, and the deposit had already been paid previously. Threats were also made and there were serious concerns about disruptions from the learners should it be cancelled because payment was not received. She said that once again the applicant authorized an irregular expenditure and it was irregularly paid from norms and standards monies allocated to the school. Regarding charges 5 and 6 she testified the applicant had appointed Mr Mgudlwa in her own personal capacity to teach at the school and utilized the school funds to pay him. He was not an SGB educator as there was no contract, and no letter from the SGB authorizing such appointment. The applicant again submitted a requisition for irregular payment without the required documentation. Mr Mgudlwa was also not a qualified educator.
  11. Regarding charges 7 and 8 she stated that she had visited the school to provide the applicant with a suspension letter, resulting from being found guilty of assaulting a colleague. She read the letter of suspension to the applicant in the presence of Mr Mhaleza. In spite of the suspension letter she found when she visited the school on the 5th of October that the applicant was at the school and she instructed her to leave considering she’s been suspended. She had also been informed that on 20th of October the applicant attended a strategic planning session. Neither did she hand over the resources to as she was instructed in the suspension letter to Mr Mhaleza. She also stated the applicant herself negotiated the period of her suspension with the WCED in order to sufficiently prepare and finalize all school class work prior to the suspension. She subsequently highlighted that the applicant had sufficient time to prepare and complete the work necessary prior to the suspension period, disputing the version of the applicant, who indicated that she did not have sufficient time to prepare for handover prior to her suspension.
  12. She also testified that the school could not submit their assessments on time as the Grade 12 Life Science work and Grade 10 to 12 as progress reports were outstanding because the applicant never handed the portfolios over. They tried contacting her to hand over the resources, however, she never answered. The applicant committed all these offences in spite of been issued with the final written warning and an unpaid suspension previously. The applicant did not accept authority, again illustrated by her insubordination by not complying with the suspension letter.

Employer closing argument

  1. In closing it was submitted Section 16A of the South African Schools Act highlights the functions and responsibilities of the Principal of a public school. Section 16A (1) (a) which clearly stipulates that the principal of a public school represents the Head of Department in the governing body when acting in an official capacity. The Principal is therefore mandated to perform the following roles and responsibilities relating to the financial management of the school as follows:
    ‘…(h) Assist the governing body with the management of the school’s funds, which assistance must include — the provision of information relating to any conditions imposed or directions issued by the Minister, the Member of the Executive Council or the Head of Department in respect of all financial matters of the school contemplated in Chapter 4; and the giving of advice to the governing body on the financial implications of decisions relating to the financial matters of the school; and
    (i) Take all reasonable steps to prevent any financial maladministration or mismanagement by any staff member or by the governing body of the school; and
    (j) Be a member of a finance committee or delegation of the governing body in order to manage any matter that has financial implications for the school; and
    (k) report any maladministration or mismanagement of financial matters to the governing body of the school and to the Head of Department…’
  2. The applicant Ms Mjikeliso disputed that she was the Acting Principal at the time of the alleged transgressions, however, as per the evidence provided by the WCED, it became apparent that she was authorizing and approving transactions on requisition forms as the Principal/Manager of the school. The WCED therefore finds her denial highly improbable, as a reasonable person in her position would have raised their concerns at some stage, given the weight and responsibility attached to this role as outlined in the Personnel Administrative Measures (PAM), especially when running the potential risk of performing the job inadequately, which foreseeably would result in major repercussions
  3. She had a fiduciary duty to the school institution and clearly breached said duty which resulted in financial mismanagement and non-compliance. It was her duty to ensure that, by the time a payment and or transaction request was made, that all the necessary supplementary documents were attached thereto for the subsequent approval and authorization thereof. Her denying her failure to obtain the necessary quotations cannot be considered an acceptable nor justifiable defense, particularly in the absence of conclusive evidence to substantiate her version. She was duly aware of the fact that failure to comply with the procurement processes would result in irregular expenditure, which is in direct contravention of the Basic Financial Manual for Schools (BFMS), as referred to by the WCED in its documentary evidence. It is highly implausible that during her tenure as a seasoned educator and member of both the School Governing Body and Finance Committee, she was not aware of committing financial mismanagement by initiating and/or approving irregular payments and what was expectant of her in fulfilling the financial duties at the school.
  4. The applicant actively knew that all the supporting documentation ought to form part of the official financial records of the school, despite her claims in her version that she cannot account for the reasons for the missing quotations. She attempted at diverting the attention away from herself, as the alleged transgressor, and the merits of the matter, by ‘discrediting’ the officials who testified as Departmental witnesses, inferring that they were responsible for the missing supplementary documentation, were being dishonest and had fabricated the charges levelled against her. Many of these allegations made were never put to the witnesses during their cross-examination. She was singlehandedly responsible for either requesting and or authorizing payments resulting in large sums of money obtained through the norms and standards of the school, without following the correct procurement procedure and the allocation of said funds, however, more disturbingly, said transactions were done within close proximity to each other and just prior to the commencement of her suspension.
  5. It was submitted departmental witnesses all delivered consistent, credible and reliable viva voce evidence during both examination in chief, however, more pertinently during cross-examination. It is thus apparent that the versions of the witnesses are certainly the most probable version of what had transpired on the day of the alleged offences committed. However, on the other hand the applicant in delivering her testimony had failed to put crucial details in her version to the Departmental witnesses for their response, which now remains unattested. The witnesses in their answering never deviated from the facts at hand, which was contrary to the applicant, who failed to cohesively provide explanations for the witnesses’ versions put before her. She, to a large degree, contradicted her own evidence and could not substantiate her claims through documentary evidence.
  6. The applicant acted irresponsibly, remained disengaged to her duties and failed to take accountability for her actions. The employer should be entitled to rely upon an employee responsible for dealing with the financial records of the school, to perform said duty with competence and integrity. She had played an instrumental role in orchestrating instability at Vuyiseka Secondary School, by mismanaging school finances, curtailing procurement processes and further threatening and or intimidating staff members to the extent where some genuinely feared for their lives, in particular Ms Nceda. Ms Senosi, the applicant’s manager at the time observed the applicant did not want to follow rules and would not have engagements in meetings, however, instead would instruct from a ‘do as I say stance’, often leading to conflict in School Management Team (SMT) meetings and more often than she was in the center of conflict at the school. During her tenure at the school there was great instability at school and no funds in the school account, however at the time of the hearing (and at the time of her testimony), the school had roughly R2 million in its account following her exit.
  7. She displayed zero remorse for her actions during the entire process, in fact to the contrary has tried to justify her actions on many occasions throughout. All things considered the WCED cannot disregard the severity of these allegations and further allow her to run rampant without facing the repercussions of her actions. She incessantly shifted blame on to other witnesses and refused to take accountability for her insubordinate behaviour, for instance when she failed to adhere to the reasonable and lawful instructions given by both Mr Jeftha, as contained in Charge 2 and Ms Senosi as contained in Charge 7 and 8, without just and reasonable cause. She is beyond reproach and blatantly defiant, which cannot be tolerated in any workplace.

Applicant’s version:

  1. The applicant Ms L Mijikeliso testified she was an educator at Vuyiseka School and was part of the SMT committee and Financial Committee (Fincom), and when there was a project that required financing, she had to source the quotations and necessary documents for that project, where the SGB and FinCom would choose the suitable service provider. In relation to charge 1 Masumpa Security was selected and she denied the fact that she failed to submit three comparative quotations to Ms Nceda, when requesting that payment be released. She insisted that all the documents were attached by her and that the charges against her were fabricated. No one had asked her to explain about missing documents. Regarding charge 2 which was linked to charge 1 about the instruction from Mr Jeftha not to effect payment because Masumpa Security was not approved as a service provider, and that they were questions about their invoice. She denied that she had seen the email that had been sent by him and also denied that Ms Senosi had spoken to her about it. She confirmed that Mr Masumpa and Mr Belane came to the school, uninvited, and asked her about the outstanding payment. Ms Belani had visited the school as a community member and part of the Business Forum. She denied that they were threatening and stated that after Ms Nceda called Ms Senosi, payment was implemented.
  2. Regarding charge 3 the applicant stated she was project manager for the requisition for purchase of stationery for the school and because she was going on suspension, she was proactive in ensuring that she finalise this project. She had sent out an email to service providers requesting quotations and provided the SGB with the quotes after discussing it with Mr Mpikashe. He had confirmed that the quotation for Zomzi was the cheapest and they elected Zomzi, and informed them that their quote had been selected, and they delivered the stationery the next day and provided the supporting documents. She denied that she failed to submit three quotations. Regarding charge 4 about the matric ball requisition, she stated Ms Majola come to her on the day of the ball requesting her to submit a requisition for payment of an outstanding amount. A deposit was previously paid. They were not three quotations as the quotations provided initially had lapsed. The Lord Charles Hotel was already approved and paid. She denied having a conversation with Ms Senosi regarding the budgeted R30 000 for the matric ball being an excess irregular expenditure.
  3. Charges 5 and 6 was dealt together and she stated Mr Mgudlwa had tutored the students during the June holidays, and the SGB agreed that he should stay on as a tutor, to assist her learners, and be paid from the school budget. She submitted the requisition for his payment in the name of another educator was because he had a problem with his bank account. She acknowledged to paying him from the Norms and Standards funds of the school, and that the school was allowed to do so, as it was classified as a need of the school and accounted for in the school budget.
  4. Regarding charge 7 she acknowledged that on 27 September 2018, Ms Senosi had handed over her a suspension letter for the outcome of the previous disciplinary hearing. Ms Senosi was with Mr Mahleza when the letter was handed to her, and Ms Senosi had read the letter to her and asked her to sign, but she refused to sign for it. Mr Mahleza signed as a witness to the discussion and serving of the letter. She denied that she failed to hand over the resources as she was instructed to do, saying Mr Mahleza had left the school early on the day she was meant to hand over the resources.
  5. Regarding charge 8 she stated that she had gone to the school premises on 5 October 2018 with the intention to complete her outstanding work, i.e. marking and finalising the marks for students, so that she could hand it over to Mr Mahleza at the meeting. Ms Senosi had come to her and told her to leave the premises. She had left the resources, laptop and work that was incomplete in her office and could not hand over the outstanding work. On 20 October 2018, she had attended a team building session in Milnerton. She said she was invited by Mr Mpikashe, who was a member of the SGB. She had interpreted the suspension letter that was read to her to mean that she could attend the event, as the letter only referred to her being at school. She continued to deny not following instructions.
  6. Mr Mpikashe, SGB member and Chairperson of the SGB, stated that regarding charge 1, the applicant had provided all the required document for requisitioning the payment. He does not know what happened to the documents afterwards, and regarding charge 2 stated he was called for a meeting with Ms Nceda and the applicant where the service provider Masumpa was present. The meeting was to determine why the service provider was not paid. Ms Nceda showed them the email from Mr Jeftha and he responded that he was unaware of the issues raised by Mr Jeftha, despite Ms Senosi’s testimony put to him that she had numerous discussions with the SGB regarding this particular service provider. Regarding charge 3 he testified that the SGB had discussed the procurement of stationery, and the applicant had received two quotations from the business forum, stating the SGB followed the correct procurement procedure in that they conducted a meeting, assessed the needs of the school, decided to source quotations, and chose Zomzi, being the cheapest service provider.
  7. However, during cross examination, the applicant’s testimony was put to him in which she stated that on the particular day that Zomzi had allegedly provided their quotation, he had visited the school for unrelated matters when she approached him and presented him with the with the quotation, and without a second thought gave her the approval to use Zomzi as the preferred service provider. It was put to him the decision was thus taken between only himself and the applicant, without an SGB meeting or SGB approval, as per the applicant’s evidence.
  8. Regarding charge 4 he said he aware of the requisition as he was there when the deposit was paid, but he was away at the time of the matric ball. On Charge 5 and 6 he testified that he was part of the SGB members that had approved the applicant’s request for a tutor. They had been informed that the request was for a tutor and not SGB educator. The SGB normally paid for extra tutoring requested from the school budget. He could however could not account which funds were allocated to pay Mr Mgudlwa the stipend of R 20 000-00. Regarding charges 7 and 8 he denied inviting the applicant specifically to the strategic planning, but said he had sent out an email to all employees, stating he was not aware of the applicant’s suspension, as the SGB had not been informed about it.
  9. Ms Majola testified about charge 4, stating she was the project manager for the matric ball, together with another colleague, Ms Macozoma. The first requisition for the payment of the deposit was made by Ms Macozoma, where she had provided the 3 comparative quotations. She does not know what happened to the quotations as they were supposed to have been filed. Regarding the payment for the ball, she stated they had not done any fundraising and the school would provide a subsidy, but the learners had to pay. She confirmed the requisition for the outstanding payment and transaction had in fact taken place on the very same day of the matric farewell and that the venue was demanding the outstanding deposit, or threatening to cancel the event in the absence of payment.

Applicant closing argument

  1. Regarding procedural fairness it was submitted the employer dismissed the applicant without having afforded her to opportunity to present her case, as she had been booked off as ill. She had provided a medical certificate and referred to the case of Avril Elizabeth Home v CCMA (2006), emphasising the importance of a fair procedure, in that an employee dismissed must be given a reasonable opportunity to be heard by the employer. The chairperson of the disciplinary hearing refused a postponement and proceeded in her absence.
  2. Regarding the substantive fairness, it was submitted that in the Basic Financial Systems for Schools Manual (BMFS), it is stated that all payments must be proceeded by completion of a cheque requisition form and submitted with all the required documentation. Should the requisition not have the required documents support documentation such payment cannot be authorized. In relation to charge 1 it is submitted that all the required documents were submitted to Ms Nceda and about charge 4 it was submitted that the applicant witnesses testified that all required documents were handed over initially with first requisition for the matric ball, and that it must have gone missing. It was submitted that the applicant had complied with the BFMS, and if it was not so the payment should not have been done by Ms Nceda.
  3. Regarding allegations of dishonesty, related to charge 1 and charge 5, it was submitted that with reference to case law these offences that she had been charged with does not for the fall within the definition of dishonesty, defined as per Nedcor Bank Ltd v Frank and Others (DA4/01) [2002] ZALAC 11 (8 May 2002) as any form of deception, illegal or unethical acts detrimental to the employment relationship. The applicant witnesses testified that in relation to charge 1 the necessary documentation and quotations were provided, and that there was no deceit. Regarding charge 5 it was submitted the appointment of a tutor was done through the SGB. There is a school budget that was approved, and tutoring is catered for in the budget. There was no intent to deceive anyone by asking for the payment to be made in the name of another person because there was an issue with the tutor’s bank account.
  4. Regarding charges of insubordination relating to charges 2, 7 and 8, it was submitted the test for insubordination is whether the employees’ conduct demonstrates an intention to defy the employers’ authority. Regarding charge 2 it is submitted that the applicant did not receive the email and therefore could not have been insubordinate of such instruction, and in relation to charges 7 and 8 it was submitted that the implication and effect of the suspension was not properly explained to the applicant. The applicant had wanted to hand over the resources to Mr Mahleza, but he had left school early. The applicant went to the school on 5 October 2018 to finish her work and provided a reasonable explanation why she was at the school, and in attending the strategic planning meeting it was submitted that the suspension letter only refers to not being at the school, and this was at a different venue and she had been invited. The applicant did not disobey the suspension letter. Regarding the mismanagement of funds, relating to charges 3 and 4, it was submitted that applicant did not fail to follow the rules and guidelines regarding the requisitions and provided the necessary documentation. It was also submitted that there were some inconsistencies regarding the testimonies of Ms Nceba and Ms Senosi regarding when the quotations for the stationery had been received and delivered.
  5. In conclusion it was submitted the employer testified to the effect that the employment relationship between the applicant and employer is broken down and there is no trust. The employer however failed to prove the breakdown in trust and merely chose a blanket approach. The employer further testified that she works well with the applicant. The employer failed to meet their onus in showing the breakdown in trust for the dishonesty to be considered as valid. They have further failed to show that the insubordination is so gross that it will create or set a precedent of disrespect at the school.
  6. The employer’s failure to bring these allegations to the SGB or the employee further shows that the charges were only for the punishment of the applicant and not to remedy the issues the employee has. There was inconsistent application and consideration of rules for the employees who have committed or participated in the misconduct in consideration, as no action was taken against Ms Majola, whose quotations were missing, nor against Ms Nceda who was not charged for not following the BFMS. It was submitted that the applicant was not guilty of the charges, or in any event, the sanction of dismissal was not fair, and it was also submitted that the disciplinary hearing was procedurally unfair.

ANALYSIS OF EVIDENCE AND ARGUMENT

  1. The LRA states in the Code of Good Conduct in sec 7 of Schedule 8 that in a dismissal dispute the following must be considered:
    “Any person who is determining whether a dismissal for misconduct is unfair should consider –
    (a) Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
    (b) If a rule or standard was contravened, whether or not-
    (i) It was valid or reasonable rule or standard;
    (ii) The employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
    (iii) The rule or standard has been consistently applied by the employer;”

The second question to be answered is with regard to the appropriate sanction. In s7 (b) it is noted:
(iv) Dismissal was an appropriate sanction for the contravention of the rule or standard.

  1. The applicant faced multiple charges including charges related to dishonesty, to insubordination, regarding the failure to carry out lawful instructions or orders, mismanagement of funds, failure to comply with the BFMS, and misuse of her authority. Some of the charges are also interrelated. The applicant denied these charges quite vehemently, although she did make some concessions in specific instances, such as such went to school and attended a strategic planning session during her suspension and that the decision to appoint Zomzi was only taken by herself and Mr Mpikashe and not by the full SGB. She also stated that some of the charges were fabricated by the employer, but could present any evidence of such.
  2. The employer, in argument highlighted Section 16A of the South African Schools Act regarding the functions and responsibilities of the principal of a public school, noting the applicant was in a position of seniority in the management of the school although not formally appointed in an acting position, assumed an acting position as principal following the exit of the principal Mr Adolf. The applicant noted that she was not appointed in an acting capacity, but she nevertheless assumed authority and signed requisitions and documents as acting principal, as she was authorizing and approving transactions on requisition forms as the Principal/Manager of the school.
  3. She had a fiduciary duty to the school institution and the employer submitted she clearly breached said duty which resulted in financial mismanagement and non-compliance. It was her duty to ensure that, by the time a payment and or transaction request was made, that all the necessary supplementary documents were attached thereto, for the subsequent approval and authorization thereof. Her denying that she failed to obtain the necessary quotations and arguing the employer lost it cannot be considered as an acceptable or justifiable defense, in the absence of conclusive evidence to substantiate her version. She was duly aware of the fact that failure to comply with the procurement processes would result in irregular expenditure, which is in direct contravention of the Basic Financial Manual for Schools (BFMS), as referred to by the WCED in its documentary evidence. This cannot be denied by the applicant. I accept that it is highly implausible, as noted by the employer, that during her tenure as a seasoned educator and member of both the School Governing Body and Finance Committee, that she was not aware of financial policies, but committed financial mismanagement by initiating and or approving irregular payments and what was expectant of her in fulfilling the financial duties at the school. Evidence was presented by Ms Senosi and others that even since 2016 training had been provided to the SGB, and school finance committees, as well as senior management employees.
  4. Regarding the specific charges I find that as per In Marapula & others v Consteen (Pty) Ltd (1999) 8 BLLR 829 LAC it was held that the employer’s onus is discharged if “the employer can show by credible evidence that its version is the more probable and acceptable version and it’s witnesses were credible”, I do find that the employer has discharged the onus to proof that the applicant was guilty of the charges.
  5. Without repeating the considerable evidence and arguments submitted, I note that in respect of charges related to the failure to provide the necessary documentation and required three quotations with the requisitions submitted, the applicant’s key defense was that she had provided it, and where she stated that it was not in the employer’s bundle of evidence, it should be, as she had insisted she submitted the required documents, and therefore the employer had either lost it, or they did not know what happened to it. This for instance relates to charges 1, 3, 4, and 5. The applicant also submitted the SGB sourced the quotations and selected and approved the quotations, but could not provide any proof in respect of minutes of SGB meetings or documents detailing decisions taken by the SGB in selecting service providers and authorizing submission of these requisitions. Regarding charge 1 for instance the applicant and her witness, Mr Mpikashe, explaining how service providers are selected through three quotations, and submitted that the SGB performed their due diligence when considering the experience of the company, quality of services, reliability and recommendations from others, they failed to provide any proof that due diligence was done. Mr Mpikashe could not recall when the meeting had taken place and further claimed that there were minutes recorded of the meeting, but he could not provide it. Had any due diligence been done they would have been aware of the questions that are already been raised regarding Masumpa Security in April 2018, considering that Mr Jeftha’s email had been sent to the School, the SGB and the Safety Committee, and equally so the to the School, the SGB and the Safety Committee and specifically also to applicant’s email on 23 July 2018.
  6. Regarding charge 2, the failure to carry out lawful instruction, evidence was led and confirmed that the email from Mr Jeftha was sent to the applicant, clearly indicating that there were questions about Masumpa Security Services and that no payment should be affected until it was determined that they meet all the requirements, such as being was properly registered, as the ARIBA certificate appears to be a fraudulent document, and how the invoice was made up, requesting payment for instance for uniforms and a bonus, and confirmation that the service was actually provided. The applicant denied that she had received this email, but Ms Senosi also testified that the applicant was quite diligent in responding to emails that she had sent to her on other occasions and she had discussed the matter with the applicant. It is also noted that an email was also already sent in April 2028, to the SGB and the safety committee, explaining the requirements for appointing of a service provider for holiday security provisions. The letter on the process with regard to holiday and emergency security service payments from Mr Jeftha, dated 24 April 2024, clearly states that only after WCED funds have been paid into the school account, a requisition may be submitted and if all is in order and approved, payment can be made.
  7. Further concerning issues regarding this requisition and payment is the testimony that the employer and Ms Nceda and Ms Senosi was in fact threatened by the service provider, and as testified by the applicant, Mr Masumpa and Ms Baleni, a community and business forum member, visited the school demanding payment. It was noted in evidence it was also indicated that the business forum had input in selecting the service provider and considering the negative reputation that these self-appointed business forums have developed, this is disconcerting, particularly so if the functions and decisions of the SGB and the School become influenced or even dictated to by business forums. The applicant could not have been unaware of the email and the instruction not to effect payment, and she was clearly insubordinate in submitting the requisition and requesting payment.
  8. Regarding charge 3, as presented by the employee witnesses and confirmed with documentary evidence, that there was only one quotation from Zomzi, and the requisition of payment for stationery submitted on 28 September 2018, which was her last day of school for the year prior to her suspension period commencing. This particular quotation, the invoice and subsequent payment of a particularly large amount for services, rendered all happened within two days, just prior to the applicant’s suspension. During cross examination contradictory evidence between the applicant and Mr Mpikashe was acknowledged. There was no SGB meeting, a decision was thus taken between only Mr Mpikashe and applicant. The other quotations were in fact only sourced after Zomzi was already paid, as they had submitted an invoice and the very next day after delivery the stationary. Zomzi was in fact also the most expensive quotation. There was no meeting of the SGB, there is no evidence of any decisions taken by the SGB, or recommendation from the SGB. It is also particularly disturbing that this matter was rushed through because the applicant was to go on suspension.
  9. Relating to charge 4, requisition for payment for the matric ball, clearly indicates that the applicant submitted the requisition when there was no budget for such payment, and it was taken from norms and standards funding, that cannot be used for such purposes. I do understand and note that the three quotations were delivered when the initial requisition was made to pay the deposit, but in this instance it is clear that the requisition submitted, even if requested from Ms Majola, was done without any due diligence and paid irregularly, from funding that should not be used for such purposes, further evidence of the applicant’s mismanagement of finances of the school.
  10. The evidence from the employer witnesses regarding charges 5 and 6 also confirms that the applicant acted dishonestly in submitted a requisition for a Mr Mgudlwa, who was not qualified educator, and could not have been appointed by the SGB, as they had no SGB educators during that year, as confirmed by employer witnesses, including Ms Bianch, the school finance and records officer for the WCED. It was also noted that Mr Mgudlwa signed attendance registers as a WCED educator, even though he was not a qualified educator or appointed by the WCED. There was no budget allocated for his position, as argued by the applicant, because there was no budget for SGB educators. It was submitted by the applicant the appointment of a tutor was done through the SGB because there was a school budget that was approved, and tutoring is catered for in the budget. This was clearly not so and a false and deceitful statement by the applicant. Payment was in fact irregularly made from the norms and standard budget, which may only be used for the school operational requirements. This could not be refuted by the applicant.
  11. Regarding charges 7 and 8 relating to insubordination by failing to carry it out lawful instructions the evidence submitted by the employer witnesses, confirms that the applicant failed to carry out these instructions. It was also acknowledged by the applicant herself she did not hand over the resources as she was instructed, explaining that she had intended to do so, but Mr Mahleza left early on the day, although this was denied by him. It was also acknowledged by the applicant herself that she attended school on 5 October 2018, as she stated, to handover resources, which should have been handed out over on the 28th of September. She also acknowledged she attended a planning function during her suspension period, The explanation provided by the applicant that she did not understand what the suspension means, cannot be accepted, as a senior manager she cannot be so ignorant to understand what suspension means, and in this instance suspension without pay, which was in fact issued as a sanction for a previous offence of assaulting a fellow colleague. Her failure to adhere was clearly quite deliberate and an example of what Ms Senosi testified as to as her defiance of the Department’s authority.
  12. As noted above that as per Marapula & others v Consteen (Pty) Ltd (1999) 8 BLLR 829 LAC I do therefore find that on a balance of probability the applicant was guilty of all the charges as stated, and transgressed the rules and standards of the employer. The further consideration thus is whether the sanction of dismissal was fair.
  13. In assessing whether or not an employer’s decision to dismiss was an appropriate sanction according to the case of Sidumo v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC,) I considered specifically paragraph 75 and 94 referring to the issue of fairness and criteria for consideration by the commissioner. The respondent submitted that the misconduct was serious, and that there was a breakdown in the trust relationship. The respondent further submitted the applicant acted irresponsibly, remained disengaged to her duties and failed to take accountability for her actions. The employer should be entitled to rely upon an employee responsible for dealing with the financial records of the school, to perform said duty with competence and integrity. The respondent also stated that the applicant had played an instrumental role in orchestrating instability at Vuyiseka Secondary School, by mismanaging school finances, curtailing procurement processes and further threatening and or intimidating staff members to the extent where some genuinely feared for their lives, in particular, Ms Nceda.
  14. I am in agreement the misconduct of the applicant was serious, in fact she grossly misconducted herself in respect of the position that she was in as the senior manager in the school, assuming duties as head of the school. Her actions were also dishonest and by her conduct she failed in a core responsibility as a senior manager regarding her fiduciary duties. The applicant argued that she was not as dishonest as it was no dishonest intent. Grogan J, in Dismissal, 1st Edition, p 188, notes that in respect of the dishonesty, dishonesty is a genetic term embracing all forms of conduct involving deception on the part of the employees. In criminal law, a person cannot be convicted of dishonest conduct unless that conduct amounts to a recognized offence. However, in employment law, a premium is placed on honesty because conduct involving moral turpitude to employees damages the trust relationship on which the contract is founded. The dishonest conduct of employees need not therefore constitute a criminal offense. Dishonesty can consist of any act or omission which entails deceit. This may include withholding information from the employer, making a false statement or misrepresentation with the intention of deceiving the employer.”
  15. In the case of Hullet Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry and others (D 679/04) [2007] ZALC 93 (6 December 2007) it was stated:
    “42] Turning to the issue of the seriousness of the offence, the presence of dishonesty tilts the scales to an extent that even the strongest mitigating factors, like long service and a clean record of discipline are likely to have minimal impact on the sanction to be imposed. In other words, whatever the amount of mitigation, the relationship is unlikely to be restored once dishonesty has been established in particular in a case where the employee shows no remorse. The reason for this is that there is a high premium placed on honesty because conduct that involves corruption by the employees damages the trust relationship which underpins the essence of the employment relationship. In this regard the Court in Sappi Novaboard (PTY) Ltd v Bolliers (1998) 19 ILJ 784 (LAC), held that:
    “ In employment law premium is placed on honesty because conduct involving moral turpitude by employees damages the trust relationship on which the contract is founded.”
    [43] The same approach was adopted in the case of Standard Bank of SA CCMA and Others (1998) 19 ILJ 903, where the court held that dishonesty in general renders the employment relationship intolerable and incapable of restitution. The employer also referred to caselaw such as the following: in De Beers Consolidated Mines Ltd v CCMA and others (2000) ILJ 1051 (LAC) was stated the court further pointed out that “the seriousness of dishonesty, whether it can be stigmatised as gross or not depends not only, or even mainly, on the act of dishonesty itself but on the way it impacts on their employers business” and in Kalik v Truworths (Gateway) and others (2008) 1 BLLR (LC) the Labour Court held that an employment relationship. “… broken down as a result of an act of dishonesty can never be restored by whatever amount of mitigation. The underlying reason for this approach is that an employer cannot be expected to keep dishonest workers in his/her employ. The other reason for this is to send an unequivocal message to other employees of dishonesty will not be tolerated”.
  16. The applicant also argued that the alleged insubordination was not serious. The test for insubordination it was submitted whether the employees conduct demonstrates an intention to defy the employers’ authority. It was denied that she for instance refused Mr Jeftha’s instructing, stating she was not aware of the email, and also was submitted that the implication and effect of the suspension was not properly explained to the applicant, the applicant therefore did not defy employer’s authority.
  17. In Wasteman Group v SAMWU (2012) 8 BLLR 778 (LAC) the court held that an employee who expressly refused to obey an instruction and challenged the authority of the employer, would give rise to the ultimate sanction of dismissal. In this instance I have found that the applicant guilty of the charges as stated. Her actions amounted to a form of gross insubordination toward the employer, challenging the authority of the employer and defying very clear instructions. The explanation the applicant provided for defying the instructions, for instance related to her suspension, in that she did not understand what the suspension means, is clearly not reasonable. Further her refusal regarding the email instruction from Mr Jeftha was intentional as it was found she was well aware of the email and previous emails, and in failing to carry out the instructions of the employer did not consider the interests of the employer.
  18. The applicant also argued that there was inconsistency in the exercise of discipline in that Ms Nceda should have been disciplined, as she loaded the payments and accepted the requisitions from the applicant. The applicant further submitted even Ms Majola, her own witness should have been disciplined, as she could not provide her with the three competitive quotations received initially when the deposit was paid. Considering the evidence of the employer witnesses, I find that although it is correct that was on the instruction of Ms Senosi that Ms Nceda uploaded and effected the payments, I already found it was done under the threats from the service provider, and in circumstances in the school where payments were demanded for services already provided, even if the requisitions were irregular, for instance in the matter of Zomzi Renovations CC, where the stationary had all already been delivered. Similarly, regarding the matric ball requisition, it was submitted the very same day of the matric farewell because the venue demanding the outstanding deposit, threatening to cancel the event in the absence of payment. it was submitted cancelling the Matric ball on the very day, could have had severe implications for the school and its learners.
  19. In Banda v General Public Service Sectoral Bargaining Council and Others (JR3273/2009) [2014] ZALCJHB 71 (26 February 2014); by AJ Snyman; Ad paragraph 61 – “An inconsistency challenge will fail where the employer is able to differentiate between employees who have committed similar transgressions on the basis of inter alia differences in personal circumstances or on the basis of other material factors. The same was stated in Southern Sun Hotel Interests (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2010) 31 ILJ 452 (LC) at para 1 it was said: ‘…An inconsistency challenge will fail where the employer is able to differentiate between employees who have committed similar transgressions on the basis of inter alia differences in personal circumstances, the severity of the misconduct or on the basis of other material factors …’
  20. In G4S Cash Services v NBCRFLI and others (JR 1103/13) [2017] ZALCJHB 335 (handed down on 6 September 2017) Baloyi AJ, held that it is highly notable that over the years the Courts have exercised caution when dealing with cases where inconsistent application of discipline happened to be an issue. The Judge further held that it is trite that a plea of inconsistency should to a large extent be sparingly upheld by Commissioners and with or without invitation, a Commissioner is required to apply a discretion that is upon a consideration of all facts placed before him/her. The reason being that the raising of inconsistency cannot automatically constitute a bar to the imposition of dismissal. I therefore did not find any inconsistency in respect of the disciplinary action taken against the applicant in relation to the charges she faced and other employees as alleged by the applicant. In this instance it is very clear that the argument of inconsistency fails as there is no resemblance or relevance in respect of the misconduct of the applicant.
  21. Neither did the applicant show any remorse, remaining throughout the whole proceedings adamant that she was not guilty of the charges, and rejected the employer’s submission that she misconducted herself. The applicant did not in any way express remorse for her actions. In De Beers Consolidated Mines Limited v CCMA & others (2000) 21 ILJ 1051 (LAC) it is stated at par [25]:
    “This brings me to remorse. It would in my view be difficult for an employer to re-employ an employee who has shown no remorse. Acknowledgment of wrongdoing is the first step towards rehabilitation. In the absence of a recommitment to the employer’s workplace values, an employee cannot hope to re-establish the trust which he himself has broken.
  22. Considering all of the above, I find that sanction of dismissal of the applicant Ms Lumka Mijkeliso in these circumstances were not unreasonable or unfair.
  23. The applicant also raised a procedural issue, stating that dismissal was procedurally unfair. The applicant argued she was dismissed without the employer having afforded her the opportunity to present her case, as she had been booked off ill and had provided a medical certificate. It was common cause that the applicant had submitted a medical certificate to the chairperson of the disciplinary hearing, but there was no application for postponement. In the absence of an application for postponement the chairperson proceeded with the hearing. It is also common cause that following the initial disciplinary hearing, the applicant was afforded an opportunity to submit arguments on the merits of the charges and the findings and why she should not be found guilty on the charges brought against her.
  24. It is trite that the Courts have determined that a medical certificate is hearsay, and should be accompanied by an affidavit from the doctor issuing such certificate or medical report, as per the case of Mgobhozi v Naidoo NO & others [2006] 3 BLLR 242 (LAC) the Court determined that in respect of the issue of a medical reports and medical certificates it is not sufficient just to present the reports and/or certificates. The Labour Appeal Court determined that a medical certificate has to be validated by an affidavit from the doctor who issued such certificate. The judge noted “The nature of the evidence to be introduced by a medical certificate is hearsay, and it should be brought in the form of affidavits;
    • The reason that medical evidence in the form of affidavits is not provided must be considered because this failure deprived the Court of any elaboration of the widely- and vaguely-stated symptoms contained in medical certificates;
    • Due consideration should be paid to potential abuse if the doctor is not prepared to defend the medical certificate or is not prepared to spend time at the disciplinary enquiry;
    • The prejudice to the employer if the medical certificate is accepted without expert evidence being led is obviously that the employer is deprived of the opportunity to test the employee through its own practitioner. It puts the employer in a position where it must rely on the vague allegations contained in medical certificates;”
  25. It is noted that in this instance the applicant did not submit an application for postponement and just assumed that there will be a postponement. It is also noted that no affidavit was attached to the medical certificate. The applicant was however afforded the opportunity to make a submission on the findings and reasons why she should not be found guilty and dismissed. Considering all of this I find that there was no procedural irregularity.

AWARD

  1. I find that the dismissal of the applicant Ms L Mjikeliso by the employer the WCED was procedurally and substantively fair. The application is dismissed.

Commissioner Retief Olivier