In the matter between

P JAMES Applicant

and

DEPARTMENT OF EDUCATION WESTERN CAPE Respondent

____________________________________________________________

ARBITRATOR: Adv D P Van Tonder

HEARD: 1 September 2011; 14 October 2011

ARGUMENTS: 26 October 2011

DELIVERED: 28 October 2011

SUMMARY: Labour Relations Act 66 of 1995 – Unfair Labour Practice – Disciplinary action short of dismissal;

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

[1] This is a dispute concerning an alleged unfair labour practice referred to the ELRC in terms of section 191 of the Labour Relations Act No 66 of 1995 read together with the Constitution of the ELRC. The arbitration hearing took place in George on 1 September and 14 October 2011. The hearing was finalised when the final written heads of argument were submitted on 26 October 2011. The applicant was present throughout the arbitration hearing and represented by Adv Lourens instructed by Avontuur & Partners Attorneys. Respondent was represented by an employee Mr. Achilles. The proceedings were digitally recorded.

THE ISSUE IN DISPUTE

[2] I have to determine whether an unfair labour practice relating to disciplinary action short of dismissal was committed by respondent, and if so, the appropriate relief.

THE BACKGROUND TO THE DISPUTE

[3] Applicant commenced working for respondent as an educator at the George Fredericks Primary School in Merweville during 1992. She is still employed at that school as a post level 1 educator.

[4] Following a disciplinary hearing which was held in her absence on 9 December 2010, and during which she was found guilty of misconduct, a sanction of one month’s salary and a final written warning was imposed. The charges of which applicant was convicted are the following:

Charge 1

It is alleged that you are guilty of misconduct in terms of section 18(1)(i) of the Employment of Educators Act No 76 of 1998 in that you failed to carry out a lawful order or routine instruction without just or reasonable cause, in that you were instructed on or about 31 May 2010 by Mr CN Soldaat, Principal of George Fredericks Primary School to submit your educator portfolio on 1 June 2010, you failed to carry out this instruction.

Charge 2

It is alleged that you are guilty of misconduct in terms of section 18(1)(l) of the Employment of Educators Act No 76 of 1998 in that you performed poorly or inadequately for reasons other than incapacity; in that during January 2010 up to June 2010, you failed to keep and / or update your teacher portfolio(s), containing all the necessary documents relating to Grade 3, which is in contravention of the National Policy on Assessment and Qualifications for schools in the Get band.

[5] Applicant appealed against the conviction and sanction to the MEC for Education, but on 15 February 2011 the appeal was dismissed. Applicant then referred an unfair labour practice dispute to the ELRC asking for the convictions and sanctions to be set aside. At the time when the sanction was imposed applicant’s monthly salary was R12173,75. The fine was therefore R12173,75. In order to recover the fine from applicant, PERSAL was programmed to deduct R1217,38 per month in monthly instalments as from 1 March 2011. However these deductions could never be effected because applicant’s salary was stopped in accordance with the no work no pay rule as she no longer reported for duty and never resumed duties again.

SUMMARY OF EVIDENCE

Evidence on behalf of applicant

[6] Phillipina Teresa James, the applicant testified that she is suffering from bipolar disorder and is being treated by a psychiatrist Dr Taljaard. She admits that her learner portfolios were not completely up to date. As justification for the incomplete portfolios she cited various reasons, including her condition, the fact that they received material in English, the fact that photo copy machines were not always working, difficult learners and a school principal who makes life difficult for her. She was instructed on 31 May 2011 to hand in the portfolio the next day. She asked for an extension of 2 to 3 days to hand it in. This request was denied. She did not return to school the next day as she was sick again. She has not been attending school again and never wants to return to this school again. She has never received a charge sheet and was not notified of the disciplinary hearing. She is not being paid at the moment as she is not reporting for duty. Johan Petro James is applicant’s husband and is employed by respondent at Leeugamka Primary School. Neither him nor applicant ever received a charge sheet or notification of applicant’s disciplinary hearing.

Evidence on behalf of respondent

[7] Barend Johannes Bothma, is employed by respondent as IMG manager. The charge sheet containing the charges and notification to attend a disciplinary hearing on 26 October 2010 was given to him to serve on applicant. He emailed it to Ms Rozelle Smith on 12 October 2011 to serve on applicant. Later that same day Ms Smith later advised that applicant does not want to open the door for her.

[8] Because applicant’s husband Mr James has previously instructed the department not to communicate with applicant but that all communication should be done through him, he also decided to go to the Leeugamka Primary School where Mr James is employed. Since he had to pass Leeugamka on his way home, he phoned the school and asked the school principal to ask Mr James to wait for him as he wants to serve the charge sheet on him. When he arrived at the school later that same day he found Mr James in the principal’s office. When he wanted to hand the charge sheet to applicant, the school principal said that Mr James would not accept the charge sheet since their union has advised them not to accept the charge sheet. He then left the charge sheet with Mr James on the table and left.

[9] Desmond Simon Maarman is employed by respondent as circuit team manager. He was the chairperson of applicant’s disciplinary hearing. The first hearing was scheduled for 26 October 2010. Applicant’s union attended the hearing and asked for a postponement. He granted this postponement. The second hearing was scheduled for 9 December 2010. This time neither applicant nor her union attended the hearing. He had proof that applicant was notified of the hearing in that Ms Lizelle Smith had said to him in an email that she had personally served the notification on applicant. Furthermore applicant’s union wrote a letter to him prior to the second hearing in December advising him that they would not be attending the hearing as they did not receive adequate notification of the hearing. He rejected this argument and proceeded with the hearing in applicant’s absence. She was convicted and the sanctions were imposed.

[10] Narina Le Grange is employed by respondent. During 2010 she was the phase head for foundation phase at George Fredericks Primary School in Merweville . Applicant taught grade 3 and she taught grade 2. At the commencement of the academic year in 2010 she prepared a teacher’s portfolio file for applicant containing the file, with an assessment plan. She did this to assist applicant. It was applicant’s duty to keep the portfolio up to date. She explained that the teacher’s portfolio must contain several things. Firstly it must contain a work schedule. Then it must contain examples of the four formal assignments that the learners should have done during the school term as well how marks were allocated for those assignments. The portfolio must also contain record sheets, informal assessing (for example what books were read, what the learners had done in mathematics and in languages). It must also include day rosters.

[11] With both her first visit in February 2010 and her second visit in March 2010 to applicant, she discovered that applicant’s portfolio was not up to date. At the end of the term in May 2010 it was discovered that applicant’s portfolio was still not up to date. In fact the portfolio only contained the empty file and assessment plan that she had given applicant. There was no proof of formal or informal assignments that had been done during the second term, no record sheets, no daily rosters – nothing. As a result of this applicant’s learners could not get reports at the end of the second term. This caused learners and their parents to be unhappy. During the third term other educators had to ensure that applicant’s learners do additional assignments that they should have done during the second term, so that they could be assessed and could get reports for the second term.

[12] She concedes that educators received some of the material in English and that the photocopy machine was broken at times, but said that this could not have been the reason why applicant did not keep her portfolio up to date as all the other educators were in the same boat, and they all kept their portfolios up to date.

[13] Cornelia Kriel is employed by respondent as curriculum advisor for foundation phase. During 2009 when she commenced her duties, applicant was not at school, so she only met applicant in 2010. As she was informed that applicant had been absent from work for a while, she was tasked to give support to applicant. When she met applicant during February 2010 she found that her portfolio was empty. When she attempted to discuss this and give support, applicant’s attitude was negative. With her second visit in March 2010 the portfolio was still incomplete, with no assignments, no memorandums of assignments, no record sheets. Applicant then claimed that she does have the assignments, but when she was asked to go and fetch it she said that she is still busy and will put it in the file later. She also said she must still do the record sheet. On 19 April 2010 she again paid a visit to the school. Applicant was not at school and her portfolio was also not at school. On 26 May 2010 she again went to the school. Applicant did not have her portfolio available. Applicant claimed that it was at home. When she then suggested to applicant that they should go and fetch it at home, applicant refused this request and said that she was still busy with it. She then asked applicant to go and fetch books of learners so that she could peruse them. However the books that were brought contained work for January 2010 only.

[14] Collin Norman Soldaat is employed by respondent as school principal at George Fredericks Primary School in Merweville. He became acting principal during April 2005 and principal during January 2006. Since 2006 the longest that applicant has been at the school, when adding up all the periods that she had been at the school, would be approximately three and a half months. The rest of the time she has been off sick. In 2009 she was not at the school. Between 12 April and 26 April 2010 she was not at the school for 11 days. Between 1 June 2010 and 4 July 2010 she was not at the school for 4 days. On her medical certificates it always stated “depression”. When applicant’s portfolio was not available at the end of the second term he instructed her on 29 May 2010 to have this available on 1 June 2010 failing which the report of her learners could not go out. Applicant did not say that she would not comply with this instruction, but the next day 1 June 2010 the portfolio was not at school and applicant was off sick again.

EVALUATION

[15] The onus is on applicant to prove on a balance of probabilities that an unfair labour practice relating to disciplinary conduct short of dismissal as intended in section 186(2) of the LRA was committed.

PROCEDURAL FAIRNESS

[16] Applicant claims that there was procedural unfairness in that she was not aware of the charges against her before her dismissal and was not notified of the disciplinary hearing which took place in her absence. Respondent denies these allegations.

[17] In resolving such factual disputes, a court of tribunal must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. I was not impressed with the evidence of applicant and her husband. Apart from the fact that their evidence was completely improbable in many respects, their demeanour in the witness stand was extremely unsatisfactory. The evidence of respondent’s witnesses, who all made good impressions on me, was consistent with the probabilities. Where the evidence of respondent’s witnesses conflicts with the version of applicant and her husband, I accept the evidence of respondent’s witnesses and reject the evidence of applicant and her husband.

[18] Applicant and her husband both want me to believe that neither of them ever received the charge sheet. Yet that charge sheet was left in the presence of applicant’s husband after applicant, according to the statement of Lizelle Smith did not want to open the door for her to accept the charge sheet. What is more, is that applicant’s union appeared at the hearing 26 October 2010 and asked for a postponement.

[19] Applicant and her husband claim that neither of them had instructed the union to represent applicant and to appear at her hearing. This version is clearly a fabrication as it is completely improbable that applicant’s union would have appeared on her behalf at the hearing on 26 October if applicant or her husband did not give the charge sheet containing the charges and the date of the hearing to the union. Hence, applicant must have been aware of the charges against her. As to whether applicant was notified of the hearing of 9 December, I accept the evidence of Maarman that Lizette Smith had said to him that she did serve the notice of set down on applicant. Although the statement from Smith is hearsay, I accept this statement as the truth because it is consistent with the probabilities. In this respect, Maarman testified that shortly prior to the hearing of 9 December 2010, applicant’s union wrote to him and said that they would not be attending this hearing. Given the fact that applicant’s union wrote this letter, the inference is inescapable that Smith’s statement must be the truth and that applicant, after having received this notification of the hearing, handed it to her union, otherwise the union would not have know about the hearing and would not have been in a position to write the letter that they wrote. Further support for the inference that applicant was well aware of the hearing and charges against her, is the fact that her husband conceded during cross-examination that he did write to respondent during 2010 to say that they will not be attending disciplinary hearings. Moreover Mr. James in a letter to respondent during January 2011 complains that Ms Smith had irritated his wife with a charge sheet that the principal of the school was meant to deliver. My finding is that applicant was well aware of the charges against her and was also aware of the hearings of 26 October and 9 December 2010.

[20] That applicant suffers from bipolar disorder may be so, but this does not mean that she is too sick to work or too sick to attend hearings each and every day of the year. No medical reports or certificates were produced to persuade me that she was too sick to attend the hearing of 9 December. She has therefore not discharged the onus of proving that she was unable to attend this hearing. The evidence leaves me with no doubt that applicant and her husband was playing a cat and mouse hide and seek game with respondent, going out of their way to attempt to make it impossible for respondent to bring applicant before a disciplinary hearing. Applicant was well aware of the hearing and the charges against her, but chose not to attend while being able to do so. There was therefore no procedural unfairness when the hearing proceeded in her absence.

SUBSTANTIVE FAIRNESS

[21] The misconduct of which applicant was convicted relates to failure to keep and/or update teacher portfolios. In 2007 the National Minister of Education has approved in terms of section 3(4)(1) of the National Education Policy Act, 1996, the policy document, National Policy on Assessment and Qualifications for schools in the General Education and Training Band (GET). This policy document provides a framework for assessment and qualifications for all schools with learners registered in the General Education and Training (GET) band. Regarding the importance of teachers’ portfolios and the content thereof, the policy contains the following provisions:

“50. All teachers are expected to keep a portfolio containing all documents related to assessment. It is the teachers’ responsibility to ensure that the information in their assessment portfolios is kept up to date.

52. Teachers’ portfolios should contain the tasks for assessment as well as the planning that informs the development of these tasks and the records of assessment of the formal tasks.

53. Teachers should, as part of their planning, provide an indication of the Learning Outcomes and Assessment Standards assessed in each task.

54. The formally recorded assessment tasks should be clearly marked or indicated in teachers’ portfolios. Stickers, coloured paper, etc. may be used for this purpose.

55. Teachers’ portfolios should be available on request at all times for moderation and accountability purposes.

56. The assessment records that should be completed and kept at school are record sheets, schedules, teacher portfolios and learner profiles. The management, maintenance and safeguarding of the learner profiles, schedules and report cards is the responsibility of school management. The management and maintenance of the record sheets and teacher portfolios is the responsibility of every teacher.

57. Teachers are expected to keep an efficient and current record of learners’ progress. It is expected that carefully compiled records and/or evidence of learner performance be maintained to justify the final rating a learner receives at the end of the year. Teachers are expected to keep current records of learners’ progress electronically or in files/books/folders or any other form the school has agreed on. These record sheets must at least have the following information:

Grade and class

Learning Programme/ Learning Area / Subject

Learners’ names

Dates of assessment

Names of the formal assessment tasks

The results of formal assessment tasks

Comments for support purposes when and where appropriate.

58. The record sheets should be used to compile a schedule that will in turn be used to compile reports once a term.

59. A schedule is a quarterly record that provides a summary of the progress of all learners in a ,specific grade in a school. The school may store thisinformation manually or electronically. The progression / promotion schedule is completed at the end of the year and is a compilation of learner performance across all four school terms. Schools should submit copies of the progression / promotion schedules to the district office for archiving.

60. Schedules should be completed four times a year, i.e at the end of each school term.”

[22] During opening statements Mr. Lourens indicated that applicant admits that she did not keep her portfolio up to date, but claims that it was made impossible for her to keep it up to date. I accept the evidence of Ms Le Grange and Ms Kriel that at the end of May 2010 there was basically nothing in applicant’s portfolio for the second term.

[23] During her evidence applicant tendered many excuses why her portfolio was not up to date. These excuses included her bipolar disorder, the fact that they received material in English, the fact that photo copy machines were not always working, difficult learners and a school principal who makes life difficult for her. I reject all these excuses. According to Soldaat, whose evidence I accept, applicant was at school for most part of the second term and was only off sick for 11 days between April and May 2010. Being off sick for merely 11 days could not have been the reason why there was nothing in her portfolio. In respect of the days that applicant was at school, applicant cannot claim that her bipolar condition had prevented her from keeping the portfolio up to day because ether applicant had a sick certificate to say that she is too sick to work in which event she should have been at home and not at school or she did not have a sick certificate in which event she was fit for duty and had to work. Surely if applicant was at work, this means that she did not have a valid sick certificate for that period and was not too sick to work, otherwise her doctor would have booked her off for that period too.

[24] An educator who turns up for work should not think that she will receive any sympathy from anybody if she does not perform her duties efficiently. She cannot come to work and then not do her work, and simply claims that she was too sick to work. If she is too sick to work, she should get a medical certificate and stay at home and not come to work merely to collect a salary, not do her job and prejudice the learners as this would infringe on the constitutional rights of learners. Moreover, no doctor who is treating an educator would send that educator back to school knowing well that the educator is too sick to work and has the potential of prejudicing learners by not being able to give her best. It is therefore completely improbable that applicant’s medical condition could have been the cause of the incomplete portfolios.

[25] In respect of the excuses that some of the material was in English and that the photocopy machine was not working at times, Le Grange has testified that all the educators at the school, including herself were in the same boat and they managed to keep their portfolios up to date. These excuses are therefore also rejected. The same would apply in respect of the argument that some of the learners are difficult, because surely all educators at the school would have to cope with the same problems, but they nevertheless managed to comply with the portfolio requirements.

[26] In the light of the evidence of Kriel and Le Grange which I accept, applicant’s claim that she did not receive any support is also rejected. Kriel and Le Grange attempted to give applicant support on more than one occasion. Not at any stage did applicant ask them for assistance or advice. Kriel’s attempts were met by a negative attitude and a failure to cooperate. The support was therefore there. Applicant simply refused to make use of it. Although there was no medical evidence before me to the effect that applicant suffers from bipolar disorder, I will for purposes of this award accept this in her favour. The extent of this condition is however unknown. However, I as I have already explained, I do not believe that applicant’s medical condition was the cause of applicant’s failure to keep the portfolios up to date. In fact, if this was the real reason, then it would not have been necessary for applicant to come up with other feeble excuses such as the malfunctioning of the photocopy machine, difficult learners, etc. In my view, the real reason why applicant has failed to keep her portfolios up to date is simply because of carelessness, negligence, recklessness, laziness or a combination of these factors. I am therefore satisfied that applicant was correctly convicted on charge 2.

[27] I am however not convinced that applicant should have been convicted on charge 1 as well. The reason for this finding is that that there is a rule against duplication or splitting of charges in our law so that a person is not convicted twice of essentially the same misconduct. The real reason why applicant could not comply with the instruction referred to in charge 1, is because she has made herself guilty of charge 2 in that she had as a result of her carelessness, negligence, recklessness or laziness failed to keep her portfolio up to date throughout the term. To convict her of charge 1 as well would amount to splitting / duplication of charges and this is not permissible. The conviction on charge 1 is therefore set aside.

THE APPROPRIATENESS OF THE SANCTION
[28] While discipline is the prerogative of the employer, this does not mean that arbitrators must rubber stamp sanctions imposed by employers. It is the duty of arbitrators to decide for themselves whether penalties imposed by employers are fair. In judging the fairness of a dismissal, an arbitrator must ultimately apply a moral or value judgment to the established facts and circumstances of the case. An arbitrator must determine the fairness of a sanction as an impartial adjudicator.

[29] This requires the arbitrator to give consideration to the position and interests of both the employer and employee in order to make a balanced and equitable assessment. Arbitrators must use their sense of fairness to determine whether the employer’s sanction was fair. However, arbitrators must not approach the question on the basis of what sanction they would have imposed had they been the employer. The arbitrator must assess the fairness of the sanction objectively by taking into the totality of circumstances.

[30] That applicant has made herself guilty of serious misconduct cannot be denied. Children have the constitutional right to basic quality education. Moreover the Constitution provides that the best interests of the child are of paramount importance in every matter concerning the child. Applicant’s misconduct was in flagrant disregard of both these constitutional rights.

[31] On the other hand, the Labour Relations Act endorses the principle of corrective discipline and so does Schedule 2 of the Employment of Educators. Although I am in agreement with the employer that a final written warning and a fine was called for, I am of the view that it was unduly harsh not to suspend the fine.[1]

[32] The purpose of a suspended sanction or sentence is always to impress upon the offender that if she commits similar misconduct within the period of suspension, she forfeits the privilege of suspension and the suspended sentence will come into operation. A suspended sentence can therefore be compared to a sword that hangs over the head of an offender – a constant reminder to her that she must keep on the straight and narrow. Under these circumstances, and given the fact that the Employment of Educators Act permits employers to impose suspended sanctions, I am of the view that the principle of corrective discipline could have been achieved much more effectively by having imposed a suspended fine.

[33] In considering the appropriateness of an unsuspended fine, it also needs to be taken into account that applicant has been staying at home for many months when her sick leave was already exhausted, and that paid temporary incapacity leave has been refused for extended periods of absence which means that the salary that applicant received during those periods would be reclaimed from her, if she has not already repaid it. To impose an additional unsuspended fine of one month’s salary on an educator under these circumstances seems unduly harsh

[34] I take into account that applicant has not in the past yet received a final written warning, suspended fine or unsuspended fine. The only relevant sanction on her disciplinary record was a written warning dated 24 February 2010 cautioning her that she does not keep to deadlines regarding administrative work.

[35] Finally it should be borne in mind that I have now set aside the conviction on charge 1 (essentially a charge involving insubordination) and that applicant’s moral blameworthiness is therefore less than what the employer had thought at the time when the sanction was imposed.

[36] In the circumstances I am of the view that an unfair labour practice was committed in that the sanction that was imposed was too harsh. Accordingly I intend to substitute the sanction with a more appropriate sanction.

AWARD

In the premises I make the following order:

1. Applicant was correctly convicted on charge 2 and that conviction is confirmed

2. The sanction that was imposed was unduly harsh and inappropriate and because of this respondent has committed an unfair labour practice as intended in section 186(2)(a) of the LRA.

3. The sanction imposed by respondent is substituted with the following sanction:

a. A final written warning valid for 6 months from 15 February 2011 being the date of the outcome of the appeal;

b. A fine of one month’s salary, which fine is suspended in its entirety for a period of 12 months from the date of this award on the following conditions:

1. That applicant is not convicted again of any misconduct committed during this period of suspension involving failure to keep or update her portfolio or any other misconduct involving her teacher’s portfolio or the portfolios of learners, or any misconduct involving the neglect of learners;

2. That if applicant is convicted of such misconduct that was committed during this period of suspension, then upon such conviction, this fine of one month’s salary will automatically come into operation upon such conviction, in addition to any other sanction that may be imposed as sanction for that misconduct

4. Respondent must ensure that the PERSAL system is programmed immediately so that he fine of one month’s salary that was programmed to be deducted in monthly installments as soon as applicant receives a salary, is removed from the system

5. To the extent that respondent has already recovered the fine of one month’s salary or any portion therefore from applicant, respondent is directed to refund to applicant whatever amounts it has recovered in respect of this fine by no later than 31 November 2011, after which interest at the rate of 15,5% per annum shall accrue on all outstanding amounts from 15 November 2011 to date of payment.

6. No order as to costs is made.

______________________________ adv D P Van Tonder

Arbitrator/Panellist: ELRC

Chambers, Cape Town