In the ARBITRATION between

NAPTOSA OBO MASOGA B
(Applicant/ Employee)

And

DEPARTMENT OF EDUCATION – GAUTENG
(Respondent/ Employer)

DETAILS OF HEARING AND REPRESENTATION

1. This is an award in the arbitration between NAPTOSA obo Masoga B, the applicant, and Department of Education – Gauteng. The matter was heard in the offices of the respondent in Wonderboom on 8 September 2016 and submitted written arguments on 15 September 2016.

2. The applicant, Mr. B Masoga attended the hearing and Mr. Tumi Madika, a union official represented him. Mr. Abe Mokgothadi, a GDE official represented the respondent. The proceedings were electronically recorded. The parties did not lead any witnesses and agreed to rely on written arguments since the only issue in dispute is the appropriateness of the sanction.

BACKGROUND TO THE DISPUTE

3. The applicant was appointed as an educator in 1996 and was promoted as a deputy principal in January 2010 and further promoted as a principal at Sedibeng Primary in June 2012. His services were terminated on 13 June 2016. The applicant was employed as a principal at Sedibeng Primary when the dispute arose. Two charges were leveled against the applicant, he was found guilty on charge one and dismissed for the one stated below:
a) Allegation 1
It is alleged that during the undermentioned periods in 2012 you committed an act of misconduct in that as a principal of the school you willfully or negligently mismanaged the finances of the school in that you failed to make sure that the amounts indicated on the requisitions corresponded with the amounts indicated on the cheques. The following is a breakdown showing discrepancies of cash between the requisition forms and the cheques.
Date Cheque No Amount Claimed Amount withdrawn Purpose Claimant
13/04/2012 5542 R200 R22000 Petty cash Mahlangu R.S
10/04/2012 5538 R1052 R10052 Transport and catering Matladi S.P
25/04/2012 5573 R252 R12252 Purchase of gas Makunyane L.J.
24/05/2012 5623 R2000 R12000 Petty cash Mahlangu R.S
06/2012 5676 R200 R12000 Purchase CD Room Nkadimeng T.H
26/06/2012 5707 R510 R5510 Transport for Sport Mahlangu A
02/07/2012 5716 R225 R9000 Transport to library Tjatji K. D
12/07/2012 5727 R513 R15513 Copy type (rental) Mahlangu R.S
27/07/2012 5753 R7847 R17847 Municipal rates Mahlangu R.S
31/07/2012 5768 R2000 R12000 Petty cash Mahlangu R. S
01/08/2012 5789 R450 R4450 Transport for sports Mahlangu A
22/08/2012 5814 R600 R6600 SGB Catering Mahlangu R. S
30/08/2012 5829 R225 R12225 Transport for sports Mahlangu. A
19/10/2012 5946 R150 R8190 Workshop Transport Sethosa P. G
02/11/2012 5967 R2000 R22000 Petty cash Mahlangu R. S
06/11/2012 5975 R3425 R13425 Purchase of wireless microphone Mahlangu A
Total R25249 R195 064
Your actions resulted in R169 815.00 of the school’s finances that could not be accounted for.
In view of your actions, you are thus charged with misconduct in terms of Section 1791) (b) of the Employment of Educators, Act 76 of 1998, as amended.

ISSUE TO BE DECIDED

4. Whether the sanction of dismissal was appropriate?
5. Appropriate relief

THE SUMMARY OF THE RESPONDENT’S CASE

6. The respondent submitted that a decision to terminate the applicant’s services was fair and had considered the gravity of the contravention, the circumstances of the contravention, the nature of the job and the mitigation and personal circumstances of the applicant. The gravity of the misconduct has been deemed very serious and constituted a serious breach of trust between the parties which thus justifies dismissal.

7. The applicant was a principal and thus an accounting officer and he defrauded the respondent with R195 064.00. The money was mismanaged under his leadership and thus the respondent could no longer entrust him with such a responsibility again. Evidence was led and verified that the applicant would even phone from prison to issue instructions to the finance clerk and the chairperson to issue cheques. Cheques would be inflated from R200 to R2000.

8. It is provided in the Basic Education Laws Amendment Act, 2011 para (i)(j)(k)

(i) The principal must take reasonable steps to prevent any financial maladministration or mismanagement by any staff or by the governing body of the school.
(j) Be a member of finance committee or delegation of the governing body in order to manage any matter that has 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.

9. The applicant failed to acknowledge the misconduct and show remorse and thus shows no willingness to improve, a severe sanction was justified. The only time the mismanagement was discovered when the external auditors perused the books.

SUMMARY OF THE APPLICANT’S CASE

10. The applicant submitted in brief that he discovered the irregularities of finances on or around 23 April 2013 to the value of approximately R186 000 which was unaccounted for. Upon investigation he discovered that the requisition form did not correspond with the amounts on the cheques. He asked for an auditor’s assistance which confirmed the suspicions and immediately reported to the district and the SGB.

11. The respondent formulated the charges based on his findings and the two administration assistants admitted to stealing the money and were found guilty and the sanction was three months suspension without pay and final written warnings. The applicant was found guilty of charge one and exonerated of charge two. The applicant was subsequently dismissed and lodged an appeal on the grounds that the dismissal was too harsh.

12. The crux of the applicant’s case is that the chairperson erred in law in holding that the offence for which he was dismissed was serious enough to warrant a dismissal. He admitted to having been negligent as the accounting officer. He acknowledged that he should have known better and took necessary precaution to deter the administrators from committing the misconduct. The administrators skillfully manipulated changing the amounts on the cheques and counterfoils only after he had signed the cheques. He had no way of picking up that they manipulated the amounts when he was signing the cheques. His actions were not willful nor did he aid and or abet them.

13. He was not charged with fraud and the charges fell within “Less serious misconduct” as contemplated in s18 of 76 of 1988 of the Employment of Educators Act which is distinguishable from serious misconduct in s17 of the Act. The applicant responded to Audit Letter on 20-03-2014 and charges were preferred to him on 5-02-2015. It took the respondent 11 months before proceeding with formal disciplinary hearing whilst they did not conduct and investigation since they used his report and the administrators he exposed as witnesses. The delay is not in the interest of justice nor does it comply with the requirements of the Labour Relations Act which provides that disputes should be dealt with expeditiously.

14. The employment relationship has not broken down; the respondent did not develop him with the relevant financial skills. There was no deliberate and willful conduct by him to misappropriate the school funds. The applicant had a clean disciplinary record, long service and continued to work diligently after being charged.

15. Section 37 of the South African Schools Act makes it quite clear that the school governing body and not the principal of the school has the ultimate responsibility for its financial management. Menstry (2004, 129) states that “the principal must work in collaboration with school governing body in the management of finances.” The applicant did just that and alerted the GB and other stakeholders.

16. There are many other matters within the department whereby the principals have mismanaged the finances of the school running to millions of rands and received a slap in the wrist with suspension without pay for three months.

17. The deputy principal who acted in the absence of the applicant and Ms. Ndinisa an administrator were not charged. The LRA requires employers to act consistently when instituting disciplinary measures. The respondent did not apply principles of progressive discipline but maliciously charged that applicant for something he had no knowledge of. He managed the finances of the school perfectly after the incident and has cooperated and shown remorse. The applicant is only pleading guilty to negligence as it happened on his watch which is the responsible thing to do. The sanction imposed is too harsh given the context of the charge that he was found guilty off. The sanction does not match his conduct. No progressive discipline was applied and only punitive measures were taken against him. The employer failed to act fairly.

ANALYSIS OF EVIDENCE AND ARGUMENT

18. The applicant’s contention was that his dismissal was substantively unfair in that the sanction imposed was not appropriate.
19. The Code of Good Practice: Dismissal, states that one of the requirements of a fair dismissal for misconduct is that the dismissal must be an ‘appropriate’ remedy, in the light of the facts of the case.
20. Dismissal, Discrimination & Unfair Labour Practice by John Grogan page 257 provides, ‘Disciplinary action may be taken against employees for negligence because they owe a duty of care to their employers and their colleagues. The basis of the offence is therefore a breach of that duty. The requirements for dismissal for negligence are:
– That the employee failed to exercise the standard of care and skill that can reasonably be expected of an employee with his or her degree of skill and experience; It is common cause that the applicant by virtue of being a principal of the school was an accounting officer and entrusted to take reasonable steps to prevent any financial maladministration or mismanagement by any staff member or the governing body of the school. The applicant admitted to having been negligent.

That the lack of care and skill manifested itself in an act or omission that did or could have caused loss to the employer; it is not in dispute that as a result of the applicant’s negligence R169 815.00 of the schools finances could not be accounted for.

That the loss or potential loss to the employer resulted or could have resulted from the employee’s negligent act or omission; it is not in dispute that the loss to the employer resulted from the applicant’s negligent act.

The negligence was gross. Documentary evidence and the arguments advanced by the parties suggest that the negligence was gross. The periods whereby the misconduct took place suggest that the applicant was persistently negligent. The fact that the applicant reported the matter to the department albeit late does not mitigate for the period the misconduct took place under his stewardship. It was further the applicant’s responsibility to report mismanagement of funds.
21. It was held in um Sidumo and another v Rustenburg Platinum Mines Ltd & others 92007) 28 ILJ 2405 (CC); [2007] 12 BLLR 1097 (CC) In terms of the LRA a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decision whether what he employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she would consider all the relevant factors and circumstances.
22. The applicant argued that there were other instances whereby the respondent did not dismiss principals who were involved in mismanagement of funds. I am not privy of these matters and thus will not be in a position to reasonably compare them with that of the applicant. It is trite law that each case should be determined based on its own merits. With regards to the sanction imposed to the administrators who defrauded the school; I have no details why the respondent opted to issue them a lesser sanction than that of the applicant. It is clear that these were administrators and thus of lesser responsibility and accountability than the applicant.

23. The applicant’s length of service and clean disciplinary record do not lessen the gravity of the misconduct nor will they provide a basis for rendering a dismissal unfair.

24. In County Fair Foods (Pty) Ltd v CCMA & Others, [1999] 11 BLLR 117 (LAC) the judge remarked, “it remains part of our law that it lies in the first place within the province of the employer to set the standard of conduct to be observed by its employees and to determine the sanction within which non-compliance will be visited, interference therewith is only justified in the case of unreasonableness and unfairness.”
25. It follows then that I should not interfere with the sanction imposed by the respondent in this matter. Based on the above, I find on a balance of probabilities that the dismissal of the applicant was substantively fair in that the sanction imposed was appropriate.

AWARD

26. The dismissal of Mr. B Masoga, the applicant by the Department of Education Gauteng, the respondent was substantively fair.
27. This application is dismissed.

ELRC PANELLIST: (SIBONGISENI SITHOLE)