28 August 2025 – ELRC620-24/25GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN JOHANNESBURG

Case No: ELRC620-24/25GP

In the matter between

GBN Letsoele Employee

And

Gauteng Department of Education Employer

Section 188A IBA AWARD

PANELIST : John Siavhe

DATE OF AWARD : 01 August 2025

DETAILS OF HEARING AND REPRESENTATION

1.1. This award follows an IBA in terms of section 188A of the Labour Relations Act 66 of 1995, as amended in the matter between Ms Bertha Gertrude Nomathemba Letsoele and Gauteng Department of Education.

1.2. Dr Mogaba Tsebe appeared on behalf of the Employer whereas Mr JN Lebea legally represented the Employee.

1.3. Parties had Pre-Inquiry meeting and compiled one Bundle of documents still marked ER and EE. The proceedings were digitally recorded.

ISSUE TO BE DECIDED

2.1. I am called upon to determine whether or not the Employee breached as charged, if I find that she did not breach the Employer’s regulation or Disciplinary Code, the inquiry would be discontinued, in the event I find that the Employer discharged its onus in proving that the. Employee breached as charged, I would have to impose appropriate sanction.

2.2. The Employer prayed for summary dismissal whereas the Employee prayed that if found guilty progressive disciplinary action be applied.

PRELIMINARY MATTERS

3.1. There are no recorded preliminary matters that require determination.

BACKGROUND TO THE DISPUTE

4.1. Daveyton Skills School is a Public School in Gauteng Province.

4.2. The Applicant is the principal at Daveyton Skills Public School.

4.3. The Employees’ monthly remuneration at the time of these proceedings is R57 750-00.

4.4. As a procedural requirement of Inquiry by Arbitrator it will be imperative to indicate that these proceedings were triggered by the Employee as she believed in good faith that the holding of an inquiry would not be contravention of the Protected Disclosure Act 26 of 2000.

4.5. There is nothing in dispute that has been recorded in the Pre-Inquiry minutes in as far as it relates to procedure under Inquiry by Arbitrator.

4.5.1. the right to be present and be represented (including legal representation) during the inquiry to state her case.
4.5.2. the right to have sufficient time to prepare herself;
that she had enough time to prepare herself;

4.5.3. the right to cross-examine Employer witnesses, and to call her witnesses to adduce evidence for her case;

4.5.4. the right to receive the outcome of the inquiry in writing.

4.5.5. that the proceedings will be conducted in English, should the Employee request the services of an interpreter she would have to inform the Employer; and

4.6. After clearing procedural issues, we started with the proceedings with the reading of the charge on record. The charge is as follows:

“ It is alleged that during the year 2024, you failed to comply with the Provincial Gazette 129: Gauteng Schools Education Act (6/1995): Regulations on Domestic and International Tours for Learners at Public Schools, Paragraph 7(2) in that you did not make any application and/or failed to obtain approval from the Department before learners at Daveyton Skills School undertook a trip to the discipline camp at the Ranch where two learners drowned.

In view of your actions, you are thus charged with misconduct in terms of section 18(1)(a) of the Employment of Educators Act 76 of 1998, as amended.”

4.7. The Applicant understood the charge, but pleaded not guilty.

4.8. The proceedings commenced as scheduled on 26 March 2025. In discharging its onus, the Employer called its first witness, Mr Mangaliso Edom who led his examination-in-chief and was cross-examined the following day until mid-day.

4.9. Just before Mr Edom was done with his cross-examination, the Employee requested a break with her attorney which I granted. They however requested to proceed and they be afforded opportunity to communicate their decision the following day on Friday the 28th of March 2025. We nonetheless progressed with the second witness of the Employer, the Circuit Manager, Mrs. Agulhas.

SURVEY OF EVIDENCE AND ARGUMENTS

5.1. On Friday morning, the Employee changed her plea of not guilty to guilty. She conceded to have breached as charged by not applying for approval to undertake a Discipline Camp to the Ranch as required in terms of Provincial Gazette 129: Gauteng Schools Education Act (6/1995): Regulations on Domestic and International Tours for Learners at Public Schools, Paragraph 7(2). And that by itself contravened section 18(1)(a) of Employment of Educators Act 76 of 1998, (EEA) as amended.

5.2. She further conceded that;

the Employer has valid and reasonable rules or procedures that regulate the workplace;
she was aware or could reasonably be expected to have been aware of those policies;
she breached those policies;
she however did not challenge the consistency of the Employer in the application of its policies.

5.3. After a thorough consideration of the Employees’ concessions, I pronounced my findings to be that indeed the Employee is guilty.

5.4. The decision by the Employee to change her not guilty plea to guilty changed the complex of the inquiry in that there was no need to proceed with the leading of evidence by the Employer to prove, in the balance of probability that she breached as charged. Parties then had to address me on arguments to aggravate and mitigate the sanction.

ANALYSIS OF ARGUMENTS TO AGGRAVATE AND MITIGATE APPROPRIATE SANCTION.

6.1. Whilst it is no longer in dispute that the Employee changed her not guilty plea to guilty, with concessions for the breach of section 18(1)(a) of Employment of Educators Act 76 of 1998, as amended, there are factors the Employer needs to consider when imposing dismissal as an appropriate sanction. Those factors are in Schedule 8, Code of Good Practice: Dismissal, items 3, 4 and 5 in LRA, and in Sidumo v Rustenburg Platinum Mines Ltd Constitutional Court decision.

6.2. The Employee still argued in her mitigation that she did not know the Employer’s policy and/or could not be expected to have known the Regulation that required her obtain written permission from the Employer to undertake the trip. In the same breath she claimed to have been remorseful.

6.3. The Employer, on the other hand argued in aggravation of the sanction that the Employee was not genuinely remorseful because she first disputed to have breached, it was only after the Employer had called Mr Edom and after his cross-examination and after examination-in-chief of the Employer’s second witness that she changed her plea. She changed the plea after she realized that there is overwhelming evidence against her case, it is not winnable. The Employer questioned the genuineness of the argued remorsefulness in her mitigations.

6.4. Over and above the factors the Employer needs to take into account before imposing a sanction, in terms of item 3(5) of Schedule 8 of the Labour Relations Act, as amended (Code of Good Practice: Dismissal),regret and remorsefulness add to the list.

6.5. In the Supreme Court of Appeal judgement involving The State v Phakamani Nkunkuma and 2 others (SCA: 1011/2013), which held that.”

‘[13] … There is, moreover, a chasm between regret and remorse. Many accused persons might well regret their conduct, but that does not without more translate to genuine remorse. Remorse is a gnawing pain of conscience for the plight of another. Thus, genuine contrition can only come from an appreciation and acknowledgement of the extent of one’s error. Whether the offender is sincerely remorseful, and not simply feeling sorry for himself or herself at having been caught, is a factual question. It is to the surrounding actions of the accused, rather than what he says in court, that one should rather look. In order for the remorse to be a valid consideration, the penitence must be sincere and the accused must take the court fully into his or her confidence. Until and unless that happens, the genuineness of the contrition alleged to exist to exist cannot be determined. After all, before a court can find that an accused person is genuinely remorseful, it needs to have a proper appreciation of, inter alia, what motivated the accused to commit the deed, what has since provoked his or her change of heart; and whether he or she does indeed have a true appreciation of the consequences of those actions.”

6.6. In the matter before me the Employee did not give any motivation why she committed the offence she was charged with, what provoked her decision to change the plea. The tears she is shedding are crocodile tears. That by itself makes me conclude that the remorse she is claiming is cosmetic, it is not genuine.

6.7. In De Beers Consolidated Mines Ltd v CCMA & others, the Labour Appeal Court, according to Conradie, the LAC held that remorsefulness is the first step towards correctability. The Employee demonstrates that they are correctable, by not wasting the Employer’s time and costs.

6.8. In this case before me, the Employee first pleaded not guilty, but later changed the plea after the Employer had called two witnesses to adduce evidence to prove its case. When the Employee argued mitigation of the sanction reverted to the arguments in support of her first plea, that she is not guilty. I am therefore persuaded by the Employer’s argument that the Employees’ claim of being remorseful is shallow and not genuine.

6.9. The Employee further submitted that she did not break a serious misconduct that warrants dismissal, because section 18(1)(a) of EEA 76 of 1998 recommends lenient sanctions like counselling, warnings and fines. Moreover, she is a first-time offender with clean disciplinary record and thirty-three years long service.

6.10. The Employer argued that the breach is serious when taking into account its consequences in terms of the provisions of Provincial Gazette 129: Gauteng Schools Education Act (6/1995): Regulations on Domestic and International Tours for Learners at Public Schools, in particular, paragraph 7.2. The misconduct itself deprived the Employer the opportunity to take measures to prevent any risk.

6.11. Section 18(1)(a) of EEA 76 of 1998, as amended, dismissal can be a sanction depending on the merits of the case, the seriousness of the offence. It is incorrect that only lenient sanctions like counselling and warnings are to be imposed.

6.12. In terms of Schedule 8, Code of Good Practice: Dismissal, terms 4 and 5 whenever the Employer decides to terminate the services of an Employee, for alleged misconduct, over and above the seriousness of the offences committed by the Employee, personal circumstances of the Employee, long service, clean disciplinary record, the nature of the job and the circumstances of the infringement should be taken into account.

6.13. In this case the Employer argued that the offence is of serious nature, two learners lost their lives during the course of this Discipline Camp, such that clean disciplinary record and long service and being first time offender cannot mitigate the Employees’ case. By long service, clean record and also that she is chronic should have worked for the Employee by ensuring that she should have done all that is possible to keep her job.

6.14. The Employee should have known better as a school principal. Finally, there was nothing on the part of the Employer that compelled her to disregard the applicable Regulations. The Employees’ infringement deprived the Employer opportunity to take preventative action to address the possible risks.

6.15. In De Beers Consolidated Mines Ltd v CCMA & others 2000 9 BLLR 995 (LAC) the Labour Appeal Court held that “ dismissal is not an expression moral vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise. If, despite Prema facie impression of reliability arising from service, it appears that in all circumstances …. Continued employment of the offender will be operationally too risky, he/she will be dismissed.”

6.16. It will be unfair and unreasonable to expect the Employer to take risk by keeping the unrepentant Employee like Ms BGN Letsoele in its employment.

SANCTION

7.1. In light of the aforesaid and in the totality of all circumstances including the aggravation arguments of the Employer, I am left with no other alternative sanction other than to Summarily Dismiss Ms BGN Letsoele.

Thus done and signed in Johannesburg.