In the matter between:

SADTU obo K.M. HENDERSON Applicant

and

DEPARTMENT OF EDUCATION WESTERN CAPE Respondent

______________________________________________________________________
ARBITRATION AWARD
______________________________________________________________________

DETAILS OF THE HEARING AND REPRESENTATION:

1. This matter was initially set down for arbitration on 20 October 2015. Mr. K. Williams, union official of SADTU represented the Applicant. Mr. G. Stevens of Labour Relations represented the Respondent’s case. I heard the matter over more than one day. The evidence was digitally recorded, and concluded on 5 February 2016. Both parties agreed and requested to submit written closing argument by 15 February 2016. I received the Applicant’s closing argument after the due date. I further applied for extension of my award date until 4 March 2016.

ISSUE TO BE DECIDED:

2. I have to decide whether the Applicant’s dismissal was substantively fair.

HISTORICAL BACKGROUND:

3. The Respondent employed the Applicant as an educator since January 1998. The Applicant became Principal at Vredendal Secondary School since 2009 and prior to that she was a Deputy Principal at the school for approximately 1 year.

4. During 2014, the Applicant allegedly committed misconduct and the Respondent called her to a disciplinary hearing on ten charges of misconduct. The Respondent withdrew Charges 8 and 9. It subsequently found the Applicant guilty on the rest of the charges, but acquitted on Charge 4.

5. For the purposes of the arbitration hearing, the Applicant admitted guilt on Charges 1, 5, 6, and 7. The Applicant denied guilt on Charges 2, 3 and 10. The Respondent led evidence only in respect of those charges.

6. The parties were in disagreement as to whether or not dismissal was appropriate under the circumstances and whether the trust relationship was broken down. The Applicant requested reinstatement. The Respondent opposed the application.

7. The charges that the Applicant admitted are the following:

I. Charge 1 – Misconduct in that the Applicant refused and/or failed to carry out a direct instruction from Head of Department (HOD) to readmit two learners that were illegally expelled from the school;

ii. Charge 5 – Misconduct in that the Applicant committed an act of dishonesty when she reported to her senior that a receipt book was stolen from the school during a house breaking whilst that was not the case;

iii. Charge 6 – Misconduct in that the Applicant endangered the lives of the learners when she allowed her husband and others to enter the school premises and the class room and allowed him/them to assault and/or threaten the learners in her presence;

iv. Charge 7 – Misconduct in that the Applicant failed to follow the financial policy when she failed to keep the school’s receipt book in the school safe.

8. The charged that the Applicant denied are the following:

I. Charge 2 – Misconduct in that the Applicant was guilty of poor work performance during the first and second term of 2014 in that she failed to –
a) Monitor and manage her School Management Team (SMT);
b) Implement assessment control guidelines at the school;
c) Submit reports requested by her supervisor;
d) Follow prescribed procedure in respect of suspension and expulsion of learners.

ii. Charge 3 – Misconduct in that the Applicant was guilty of dishonesty in that the Applicant during the first term of 2014 submitted a false attendance register and leave report to her supervisor in respect of certain educators at her school;

iii. Charge 10 – Misconduct in that the Applicant unfairly prejudiced the administration, discipline and/or efficiency of her school in that she failed to perform her tasks as Principal.

EVIDENCE AND ARGUMENT BY THE RESPONDENT:

9. The Respondent led the evidence of M.N. Johnson, G.F. Claassen, F.D. Lekay and further submitted documentary evidence in support of its case. I have decided to summarise the Respondent’s evidence and argument as far as I consider relevant for the purpose of my award.

M.N. Johnson (“Johnson”):

10. Johnson testified that he is the Circuit Team Manager (CTM) for the West Coast District since 2008. The Applicant fell under his management.

11. In respect of Charge 2(d), Johnson testified that the Applicant failed to follow the prescripts in respect of suspension and expulsion of learners after the Department received several complaints in this regard. The Applicant pro-forma notices of suspension lacked the required detail and the Applicant did not follow timeframes in respect of suspension and disciplinary hearing of learners that after they trained and guided the Applicant as to the correct procedure.

12. In relation to Charge 10, Johnson testified that the Applicant did not professionally manage her school as required by PAM (Personnel Administrative Measure). Johnson discovered this when he and two IMG (Institutional Management and Governance) managers who reports to him, visited the Applicant’s school during the period 2009 to 2014. Johnson for instance observed that the two Deputy Principals at the Applicant’s school did not know their job requirements. Further, the school roster only started running from March instead of from the beginning of the term. The Respondent assisted the Applicant as to how to draft the job description of the educators and how to implement. This never happened. During 2010, they send the Applicant to three schools for mentorship training. On her return, they guided and questioned the Applicant as to how to discipline and manage her personnel. The Applicant also did not assess her personnel correctly. Educators received higher scores not in comparison with their work performance. The Applicant’s management style was also lacking, as she could not properly communicate with her SMT. The Applicant never disciplined her staff for failure to meet deadlines.

13. The respondent progressively disciplined the Applicant. During September 2013, the Applicant received a written warning for failure to follow the prescripts and failure to carry out a lawful instruction. Again, in March 2014 the Applicant received a final written waring for a similar transgression. The Applicant’s performance did not improve after that.

G.F. Claassen (“Claassen”):

14. Claassen testified that he is an IMG Manager since 1 January 2012 and was the Applicant’s supervisor and friend as they stay in the same community. It was part of his duties to monitor the Applicant.

15. In respect of Charge 2, Claassen confirmed that the Applicant did not properly manage her SMT. The Applicant did not correctly implement the documentary management plan and assessment control guidelines in respect of learners. Claassen detected defects, for instance no proof of a strategic planning. During follow-up visits to the school, he discovered that the Applicant did not follow his recommendations to write down how she managed her personnel. In respect of practical assessment, the Applicant could not provide physical proof thereof to support the marks awarded to learners.

16. In respect of Charge 2(c) Claassen stated that the Applicant failed to provide a documentary proof of IQMS (Integrated Quality Management System) and further did not timeously submit year-end financial statements. The Applicant also did not adhere to the due date in respect of examination roster was due.

17. In relation to Charge 3, Claassen testified that the Applicant did not honestly report to him the attendance and leave in respect of certain educators.

18. Claassen further confirmed that the Applicant also did not follow the prescripts in respect of suspension and expulsion of learners. Claassen referred to the instance in April 2014 when HOD (Head of Department) instructed the Applicant to readmit two learners illegally expelled by the School governing Body.

19. In respect of Charge 10 Claassen also confirmed that the Applicant did not display professionally leadership.

F.D. Lekay (“Lekay”):

20. Lekay testified that he is a Deputy Principal at Vredenburg Secondary School since January 2010 when he met the Applicant as Principal. Lekay is part of the SMT and currently acts as Principal.

21. According to Lekay, the Applicant did not properly monitor and manage her SMT. The SMT is not motivated due to a lack of support and proper communication from the Applicant’s side. Lekay stated that he tried to support the Applicant for approximately 10 years, but withdrew during the last 2 years before the Applicant’s dismissal when it appeared as if personnel wanted to take over control of the SMT.

22. Lekay also stated that there were certain shortcomings in respect of assessment control measures. Lekay confirmed as Head of Phases Grade 8 – 9 and as member of SMT, he is responsible for the school monitoring system. They never discussed this issue at SMT meetings.

23. In respect of Charge 10, Lekay testified that the Applicant’s professionalism as a leader is questionable. The Applicant did not monitor him in respect of IQMS (Integrated Quality Management System). The Applicant however would inform them about training, but personnel did not regularly attend development sessions due to a lack of finances. The Applicant did not really support and developed young teachers in terms of mentoring programme. The applicant also never disciplined educators for failure to perform these tasks.

Closing Argument:

24. Mr. Stevens for the Respondent submitted that the Applicant’s dismissal was substantively fair. Stevens further submitted that the Respondent’s version seems more probable than that of the Applicant in respect of Charges 2, 3 and 10. I must reject the Applicant’s version as false.

25. Stevens also argued that dismissal was appropriate under the circumstances. Even if I find the Applicant not guilty on Charges 2, 3 and 10 the dismissal must stand in respect of the other charges that the Applicant admitted.

EVIDENCE AND ARGUMENT BY THE APPLICANT:

26. The Applicant testified, called N. Nadus and H.E. Engelbrecht as witnesses. Again, I have decided to summarise the evidence and argument as far as I consider relevant for the purpose of my award.

Applicant:

27. The Applicant during her testimony confirmed her employment history and her subsequent dismissal.

28. In respect of Charge 2, the Applicant stated that she managed her SMT and that the minutes of the meetings would reflect that she that she controlled and monitored her SMT. Lekay and Engelbrecht as two Deputy Principals also had job descriptions.

29. The Applicant further stated that Lekay is in charge of assessment control. However, it was her responsibility as Principal to see proper assessment control. In respect of Charge 2(b), the Applicant stated that the practical models were available in respect of Technology, Grade 9 assessment.

30. The SMT discussed shortcomings or the Applicant would address it with the Subject Head for him or her to monitor.

31. The Applicant confirmed that there was no management plan at the beginning of 2014 as most of the Subject Heads did marking during the final examination. The educators subsequently supplied their plans.

32. The Subject Head or Head of Department do moderating of educators. The Applicant would then receive a copy of the report reflecting the moderating scores. The Applicant is only responsible for the assessment of Head of Departments and Deputy Principals. The Deputy Principal is responsible for the assessment of post Level 1 educators. Once the Personnel Development Team (PDT) responsible for IQMS convenes, amendments to moderating scores are done by consensus.

33. In respect of outstanding reports, the Applicant conceded that Lekay submitted reports late and gave reasons therefore. The Applicant addressed the issue with Lekay, but never disciplined him.

34. In respect of suspension of learners, the Applicant conceded that the correct procedures was not followed at the beginning, but after training process was followed. In respect of Charge 2(d), the Applicant stated that she advised the SGB about the correct procedure, but it decided otherwise.

35. In respect of Charge 3 the Applicant denied dishonesty. The Applicant admitted that she made a mistake when she checked the documents and due to an oversight submitted the incorrect detail that she rectified afterwards.

36. In respect of Charge 10, the Applicant testified that she acted with professional leadership and focussed on personnel development. According to her, the Subject Head and the Deputy Principal who forms part of the Development Support Group (DSG) or PDT act as mentor to young teachers.

37. The Applicant further admitted that she received practical training at various small schools where she learned about personnel management.

N. Nadus (“Nadus”):

38. Nadus testified that he is a senior educator at Vredenburg Secondary School with more than 30 years’ service.

39. According to Nadus, the Applicant as Principal showed the necessary leadership. Nadus was previously part of the SMT and as Subject Head for Afrikaans during the period 2012 to 2014 submitted reports to the Principal in respect of assessment of learners. Nadus would addresses shortcomings by means of regular tests and discussed it at management meetings that they minuted.

40. In respect of Charge 10, Nadus testified that the Applicant again revealed professional leadership when she conducted SMT meetings in an orderly fashion.

41. As far as personnel development is concerned, Nadus stated that young educators falls under mentorship of a senior educator on a subject matter. Nadus denied that the Applicant did not properly manage her SMT’s. The PDT assesses educators in terms of IQMS and the Principal is ultimately responsible to verify the IQMS marks or results. The SMT will discuss such marks or results as the PDT forms part of SMT.

H.E.C. Engelbrecht (“Engelbrecht”):

42. Engelbrecht testified that he is a Deputy Principal and Head of Phase Grade 10 – 12 at Vredendal Secondary School. Engelbrecht is responsible for drafting the school roster and the processing of learner marks for Grade 10 – 12. Engelbrecht is also the Subject Head for Maths.

43. Engelbrecht further stated that he had a good working relationship with the Applicant who monitored him on a regular basis. At the beginning of each term Deputy Principals and Subject Heads would submit management plans in respect of dates, exam rosters, subject meetings, processing of marks, etcetera. They gave their management plans to the Principal to submit to the IMG Manager, Mr Claassen. The Applicant must see to it that due dates are met. Failure to meet due dates will be reflected in the IMG report that will be discussed at the SMT. The Applicant sufficiently monitored and managed the SMT.

44. The Subject Head and ultimately the Principal is responsible for assessment control measures. Lekay as Assessment Coordinator is responsible to see that educators adhere to the assessment control measures. There is quarterly training for assessment coordinators, which Lekay attended.

45. Further, it was Lekay’s responsibility to submit certain reports, including the examination roster, on time to the IMG Manager. In cases of delay, the Applicant would speak to Lekay about it to submit and/or submit it herself.

46. Engelbrecht was of the view that the Applicant showed professional leadership and contributed to the increase in pass rate of Grade 12 from 80% to 90% in 2014.

Closing Argument:

47. Mr Williams for the Applicant submitted that the Applicant’s dismissal was substantively unfair.

48. Williams argued that Lekay contributed to the Applicant’s situation by failure to submit reports on time and failure to support the Applicant. Further Johnson and Claassen tried everything to gather information to get rid of the Applicant.

49. Williams conceded that the Applicant failed to discipline her educators and that the Applicant still need to grow as Principal and be an asset to the Department.

50. Williams finally submitted that the Respondent should have given the Applicant more training, guidance, counselling, and should have considered alternative employment other than dismissal.

ANALYSIS OF THE EVIDENCE AND ARGUMENTS:

51. I have decided only focus on those issues I consider relevant.

52. The Applicant’s employment history was common cause. The Respondent dismissed the Applicant with effect from 26 April 2015 after more than 17 years’ service. At the time of dismissal, the Applicant earned a salary of R454 608,00 per annum.

53. The Applicant admitted guilt in respect of Charges 1, 5, 6 and 7. The Applicant however denied misconduct in respect of Charges 2, 3 and 10. The Respondent led evidence in an attempt to prove the contrary.

54. Johnson as CTM and Supervisor of Claassen (IMG Manager) testified that the Applicant did not follow the prescripts in respect of suspension and expulsion of learners. Claassen’s evidence and documentary evidence supported his evidence in this regard. Here I refer to documentary evidence of examples where the Applicant did not follow the prescripts. They gave the Applicant guidance in this regard and the same thing happened in 2014. This is in contrast with the Applicant’s testimony that she initially failed to follow the prescripts, but thereafter adhered to the requirements. The Applicant on the other hand admitted guilt to Charge 1 that directly related to her failure to follow the prescripts. It was further clear from Johnson’s evidence that since 2009 to 2014 when he and the IMG visited the Applicant’s school she did not professionally manage her school. They assisted the Applicant by sending her to other schools for training. It was clear from Johnson’s evidence that the IQMS marks for certain educators were higher and not in correlation with their work performance and higher than the marks allocated to the Applicant. The Applicant during her own testimony conceded to this. What was further clear from his testimony was that the Applicant should have required proof from the educator to validate a high IQMS mark.

55. The Applicant also lacked the necessary management style and skills. The Applicant during her own testimony conceded that there was a need for her to improve her communication skills. The evidence of Claassen and Lekay supported Johnson’s testimony in this regard. Claassen testified that he requested the Applicant to record in writing how she managed her SMT. This was not forthcoming. It was Lekay’s testimony that the Applicant verbally addressed the SMT. It was the Applicant’s version in this regard that they however minute the SMT meetings. The Applicant submitted no documentary evidence thereof.

56. Johnson also referred to the Applicant’s disciplinary record that remained uncontested. It was my inference from Johnson’s testimony that the Applicant did not have the necessary skills to be a leader after a period of being in the position for more than 6 years. The Applicant’s testimony supported my inference in this regard that there was room for improvement and that she lacks the necessary communication skills. Claassen’s testimony also supported that of Johnson in this regard. Further Johnson supported Claassen’s evidence that the school roster is one of the reports that they received late. Williams to a certain extent conceded to this during the cross-examination of Johnson.

57. Further, it was my understanding of Claassen’s testimony that the Applicant did not record how she monitored and managed the SMT. The Applicant’s own testimony supported the fact that management plan were not always followed as some educators did not take it serious. Engelbrecht’s testimony also supports the fact that the Applicant spoke to him verbally about problems and that Engelbrecht however could not speak on behalf of the others. Further, the Applicant could not contest Claassen’s evidence in respect of the assessment control measures with reference to the practical models (matrix).

58. Lekay testified that he the Applicant did not properly monitored and managed him and the SMT. It was my inference from his testimony that he did not give the Applicant the necessary support and that he contributed to her situation. When he came to the school, he was inexperience and expected the Applicant to guide him in this regard. Lekay did not submit certain reports on time and the Applicant did not discipline him. Claassen during cross-examination conceded the possibility that there was a rivalry between the Deputy Principals at the school. Lekay came to testify in favour of the Respondent, whilst Engelbrecht came to testify in support of the Applicant. It is clear from Lekay’s testimony that he tried to support the Applicant until a time that he withdrew when it appeared to him that some personnel wanted to take over the management. Further Lekay testified that he was not formally appointed as Assessment Coordinator, but merely got to know that he was in that position. I find it unlikely that the Applicant did not monitor Lekay as he received IQMS scores. Lekay conceded that as a Deputy Principal he also did not have the necessary courage to approach the Applicant about her problems and decided to withdraw to avoid conflict. In the same breath, Lekay stated that the Applicant had a difficult task without the necessary support from her management team. To my mind, it raises a question mark as to his management skills when it comes to conflict handling and human knowledge. I further find it unlikely that there was no development of young educators as Lekay alleged. It was the uncontested evidence of the Applicant that young educators are placed under mentorship of a senior be it the Subject Head or Head of Department. Further, it was common cause that there were Personnel Development Plans (PDP) and PDT’s in place to monitor development. It was also common cause that development and training are subject to budgetary constraints.

59. The Applicant during her testimony at the arbitration hearing admitted guilt to certain charges, but denied guilt in respect of Charges 2, 3 and 10. In respect of Charge 3 the Applicant could not dispute the fact that she supplied the IMG with the incorrect information. It was my inference from the evidence that this is not really a case of dishonesty in the true sense of the word, but a case of neglected or oversight. If she thoroughly and properly checked the attendance register on a daily basis to see what educators are absent and who arrived late, she would have noticed that some educators were absent and did not submit leave forms on time. That to my mind is a case of negligence rather than dishonesty. As the Applicant stated, she has nothing to gain from it. The Respondent could not contest her evidence in this regard.

60. In respect of Charge 2, the Applicant made certain concessions in respect of late reports. Lekay was late in this regard and she did not discipline him. Further, she did not follow the prescripts in respect of suspension and expulsion of learners. In relation to monitoring and managing the SMT, she conceded that maybe she should improve her communication skills. It was clear from her own evidence and that of Lekay, as well as Engelbrecht that the Applicant verbally instructed them to do certain things. This was contrary to what Claassen guided and taught the Applicant to do. That was to keep written proof of instructions given to the members of the SMT in respect of planning and execution of management plans, etcetera. The Applicant also conceded that she could not say that she was in control of her personnel.

61. It was the uncontested evidence of Nadus that in case of discrepancies in the IQMS marks they address it during the SIP (School Improvement Plan) that falls under the control of the PDT.

62. After consideration of the evidence as a whole, I find the Applicant guilty of Charges 2 and 10 on a balance of probabilities. The Applicant’s own evidence supported the respondent’s evidence in that regards so much so that I cannot reject the Respondent’s evidence as false. It was my inference of the evidence as a whole that the Applicant did not have the necessary management skills to effectively manage her personnel and enforce discipline. The fact that she did not properly discipline certain educators resulted in her own fate in respect of Charge 2 and 10. As for my reasoning above, I find the Applicant not guilty of dishonesty as stated in charge 3.

63. When it come to an appropriate sanction, I need to look at all the factors, including the evidence as a whole, the seriousness of the offence, and the Applicant’s personal circumstances.

64. The Applicant did not waist our time unnecessary at arbitration when she decided to admitted guilt to Charges 1, 5, 6, and 7. The Applicant further made certain concessions in respect of Charges 2 and 10. Further, I have to take into account that the Respondent charged the Applicant under section 18 of the Employment of Educators Act of 1998 as amended. Dismissal is not compulsory. Dismissal therefore will only be appropriate if the nature or extend of the misconduct merits summary dismissal. The parties led no verbal evidence on Charges 1, 4, 5, 6, and 7 at the arbitration hearing. I therefore need to rely on the documentary evidence submitted to determine the seriousness of those offences. Mr Stevens submitted that that on those charges alone dismissal is appropriate. Further that the trust relationship was broken down. I cannot agree with him in that regard. Charge 1 is proof of Charge 2 (d) and in my view amounts to splitting of charges. Charges 2 (a) to (c) and 10 relates to the Applicant performance as Principal under difficult circumstances that existed at the school. The evidence tendered in this regard related to transgression over a period and to certain incidents as proof of general poor performance on the Applicant’s side. I cannot be blind to the circumstances under which the Applicant worked that particularly led to Charges 1, 2 (d), 5, 6, 7 and 10. The documentary evidence clearly shows that the Applicant worked under difficult circumstances. It became evident during the arbitration hearing that Vredendal Secondary School is not a small school where the Applicant worked in a protected environment. Discipline and fluctuation of learner numbers was and is a big concern. The Applicant also did not have the necessary support from her personnel and senior staff due to workload and other circumstances. Lekay conceded to that. Engelbrecht when questioned by the arbitrator admitted that he do not wish to act in the position of Principle as he might get himself into difficulty. Metaphorically, the school requires a bold and experience rider to deal with the problem directly. The Applicant could not cope under the circumstances, but that does not make her a bad teacher to brand her on the altar of revenge.

65. As I stated before one must consider all the circumstances. The Applicant to my mind was not guilty to Charges 3. Neither am I convinced that the Applicant is guilty of dishonesty in the strict sense of the word in respect of Charge 5 even though she admitted guild. The Applicant gave an explanation at the time as to why she made the report according to the information known to her at the time. This was in contrast with what the Respondent discovered later. It is further trite law that innocent people sometimes lie, because they are scared to incriminate themselves. The Applicant further admitted guilt in respect of Charge 7. Be it as it may, I am not convinced that the nature and circumstances of the offences warrants summary dismissal. Johnson testified that the Applicant could come back as an educator. That to me was a clear indication that the trust relationship was not broken down and beyond repair. The Respondent cannot for instance exclude demotion as a possible sanction under the circumstances. Accordingly, I find that the dismissal was not substantively fair.

66. When I consider an appropriate remedy, I need to look amongst others at the following: The Respondent dismissed the Applicant on 26 April 2015 after 17 years service. The Applicant is not young person. A consequence of a dismissal is that it would permanently exclude her from joining the Public Service again. The Applicant will find it difficult to get work as an educator. The Applicant contributed to her own fate. It is further my understanding of the case law that I cannot reinstate to a lower position, but to reinstate on the same terms and conditions as pertained prior to the dismissal. I find that the Applicant was unfit (incapable) for the position of Principal and therefore reinstatement is not possible. Further, I am also not certain as to available suitable vacancies in respect of reemployment. The Applicant resides in the rural area where vacancies are limited. Under the circumstances, I consider compensation to be the appropriate remedy. This would not prevent the Applicant in future to apply for a suitable vacancy. I therefore deem compensation and the amount of compensation awarded below to the appropriate under the circumstances.

AWARD:

67. In the premises I make the following award:
(1) I find that the Applicant’s dismissal was substantively unfair.

(2) I order the Respondent to pay the Applicant four months compensation in the amount of R151536, 00 (R37 884 pm (R454 608 per annum / 12 months) x 4) on or before 15 April 2016.