29 August 2025 – ELRC268-25/26LP

Commissioner: Ephraim Dikotla
Case No.: ELRC268-25/26LP
Date of Award: 25 August 2025

In the ARBITRATION between:

SADTU obo H E Rihlampfu: (Employee / Applicant)

AND

Department of Education –Limpopo Province: (Employer / Respondent)

DETAILS OF THE HEARING AND REPRESENTATION

The arbitration was held on 12 August 2025 at Limpopo Department of Education offices in Tzaneen, Limpopo Province.
The employee was represented by Mr P H Madire, an official of SADTU. On the other hand, the employer was represented by Ms P Modipa, its Assistant Director.
Both parties undertook to submit their written closing arguments on 15 August 2025. The employee obliged. The employer submitted its closing arguments on 17 August 2025.

ISSUES TO BE DECIDED

I must determine whether or not the employee’s dismissal was substantively unfair.
If so, I must determine the appropriate relief.

BACKGROUND TO THE DISPUTE

The employee was appointed by the employer as a Principal of Senwabakgololo Secondary School. He commenced employment on 01 January 2005. He was dismissed for allegations of misconduct on 09 June 2025. At the time of his dismissal, he earned a basic salary of R42 003 50 per month.
The employee was accused of contravening the provisions of section 18 (1) (aa) of the Employment of Educators Act 76 of 1998 as amended (EEA).
The charges read as follows:

Charge 1: ‘You contravened the provisions of Section 18(1) (aa) of the Act in that on or around the year 2022/2023 or at any period incidental thereto, at or near Senwabakgololo Secondary school, you falsified records or any other documentation in that:

Count 1

You inflated the enrolment of learners by creating fictitious learners and misappropriating state resources in this regard.

Count 2

On the 28th of February 2023, you falsified information by producing answer sheets for the non-existent learners.’

The employee was found guilty and dismissed subsequent to a duly convened disciplinary hearing.
He lodged an appeal with the MEC and the appeal outcome upheld the decision of the disciplinary chairperson.
All the other facts are common cause. The only issue that is in dispute is whether the sanction of dismissal was appropriate.
The employee sought reinstatement.
The employee submitted a bundle of documents which was designated as “A”. The employer submitted a bundle of documents which was designated as “R”.

SURVEY OF PARTIES’ EVIDENCE AND ARGUMENTS

A summary of only what is considered relevant evidence and arguments is given below. Employer’s evidence Azwindini Joyce Musekene’s evidence was briefly to the following effect:
She was employed as a Circuit Manager for Mawa circuit. The employee was employed as a Principal of Senwabakgololo Secondary School. Reference was made to section 18 (1) (aa) of the Employment of Educators Act on pages 23 -24 of A. The sanction of dismissal was appropriate because the trust relationship was broken down. They cannot work with someone who falsified documents as there are issues of finances. She would not trust him with finances because a Principal is the accounting officer of a school.
Under cross-examination, she maintained that the offence was serious. Mamatlepa Edgar Ramodumo’s evidence was briefly to the following effect:
He was employed as a Labour Relations Practitioner. He knew the employee as the Principal of Senwabakgololo Secondary School. Pages 16- 18 of R were read into the record. Taking into consideration the nature of the offence, he found the sanction of dismissal to be fair. The employer cannot trust the employee. Reference was made to section 18 (1) (aa) and subsection (3) of the Employment of Educators Act (pages 23-24 of A). He may not be able to tell whether the offence is serious or not but he would not review the dismissal as it would set a wrong precedent. Their systems would not be credible if they allow documents to be falsified.
Under cross-examination, he reiterated that the misconduct in terms of section 18 (1) of the EEA was the falsification of documents. He disagreed with the employee that the offence was not categorized as serious because it was not listed in section 17 of the EEA. He made reference to section 18 (3) (i) of the EEA to emphasise the seriousness of the offence (page 24 of A). He further testified that by pleading guilty, the employee acknowledged his wrongdoing but dismissal was nevertheless appropriate, taking into account the nature of the offence. Employee’s case Hlanganani Ernest Rihlampfu’s evidence was briefly to the following effect:
He pleaded guilty to the allegations as a way of showing remorse and honesty by accepting the misconduct. He is challenging the sanction of dismissal as be believed that it was harsh. He considered the offence to be less serious. He would have preferred a demotion instead of a dismissal. Reference was made to section 18 (3) of the EEA (page 24 of A). Reference was further made to section 18 (1) (aa) of the EEA. Serious offences are listed in section 17 of the EEA.
Under cross-examination, he maintained that the employer was unfair in imposing on him a sanction of dismissal.

ANALYSIS OF PARTIES’ EVIDENCE AND ARGUMENTS

Section 192 (2) of the Labour Relations Act 66 of 1995, as amended (the LRA) states: ‘If the existence of a dismissal is established, the employer must prove that the dismissal is fair’.
The employer is required to prove on the balance of probabilities that the dismissal if fair.
In the present case, the existence of dismissal is not in dispute.
The employee was dismissed for the contravention of section 18 (1) (aa) of the Employment of Educators Act 76 of 1998 (EEA). It is common cause that the employee inflated the enrolment of learners by creating fictitious learners and misappropriated state resources. It is further common cause that the employee falsified information by producing answer sheets for the non-existence learners.
I must state from the outset that the employee’s conduct amounts to fraud and fraud is dishonesty. Fraud is defined as unlawful making, with intent to defraud, a misrepresentation which causes actual prejudice, or which is potentially prejudicial, to another. Offences which fall under this category include the falsification of documents.
In Department of Home Affairs v Ndlovu and others (DA 11/2012) (2014) ZALAC 11; (2014) 9 BLLR 851 (LAC) it was held, ”dishonesty is a generic term embracing all forms of conduct involving deception on the part of employees. In criminal law, a person cannot be convicted of dishonesty unless that conduct amounts to a recognized offence. However, in the employment law, a premium is placed on honesty because conduct involving moral turpitude by employees damages the trust relationship on which the contract is founded. The dishonest conduct of employees need not therefore constitute a criminal offence. ‘Dishonesty’ can consist of any act or omission which entails deceit. This may include withholding information from the employer, or making a false statement or misrepresentation with intention of deceiving the employer….’’
The employee is challenging the appropriateness of the sanction only. In his view, this offence is less serious and does not warrant a sanction of dismissal. I disagree. I find it difficult to fathom how the employee could downplay such a serious misconduct. His conduct is despicable and inexcusable.
Item 4 of the Code of Good Practice: Dismissal provides: ‘Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or willful damage to property of the employer, willful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination’.
Firstly, one needs to look at the impact it had on the employer. The employee deliberately inflated the number of learners at the school. He did so in an attempt to mislead the employer in believing that the school had more learners. It must be noted that when the employer allocates resources to a particular school, one of the factors to be considered would obviously be the number of learners. If the number of learners is not accurate, the allocation of resources would also not be accurate and this may have an impact on the employer’s operations. I can understand why the Circuit Manager argued that the trust relationship is irretrievably broken down.
It is probable that the employee acted in this manner in order to financially benefit himself. The employee’s argument that the misconduct is less serious as it is not listed in section 17 of the EEA is flawed. Fraud is listed in section 17 (1) (a) of the EEA. Even if it was not listed in section 17 of the EEA, the offence is serious.
Secondly, as the former Principal of the school, he occupied a very senior position. He acted fraudulently despite the fact that he was put in a position of trust. He actually betrayed this trust. It would be impossible for the erstwhile employer to expect him to act against others who commit acts of misconduct. A Principal of a school must be someone of high integrity. In G4SSecure Solutions (SA) (Pty) v Ruggiero NO (2017 38 ILJ 881 (LAC) the court noted that the employment relationship obliges an employee to act honesty, in good faith and to protect the interest of the employer. It is clear to me that the employee lacked integrity and honesty. He failed to protect the interest of the employer. It is one of the fundamentals of the employment relationship that the employer should be able to place trust in the employee. A breach of this trust in the form of conduct involving dishonesty is one that goes to the heart of the employment relationship and is destructive of it, thereby warranting dismissal. See Standard Bank SA Limited v CCMA and others (1998) 6 BLLR 622 (LC)
The employee argued that I should take into account his remorsefulness, his years of service and his clean service record. The long established rule applied in the Labour Court and Labour Appeal Court, ie. that the presence of dishonesty tilts the scale to an extent that even the strongest mitigation factors, such as long service and clean record, the sanction of dismissal in cases of dishonesty, must prevail. See Cecil Nurse (Pty) Ltd v Busakwe NO and others (PR174/2013) (2015) ZALCPE 28.
Remorse and clean disciplinary record will not assist an employee in circumstances where the relationship of trust has irretrievably broken down.
I am satisfied that the employee’s conduct rendered the continuation of the employment relationship intolerable.
I find that the sanction of dismissal was appropriate under the circumstances.