MEC Department of Education, Free State Provincial Government v Motloung and Others (JR234/15) [2016] ZALCJHB 430 (18 November 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: JR 234/15

In the matter between:

MEC DEPARTMENT OF EDUCATION, FREE

STATE PROVINCIAL GOVERNMENT

Applicant

and

PETER MOTLOUNG

First Respondent

EDUCATION LABOUR RELATIONS COUNCIL

Second Respondent

M A HAWYES N.O.

Third Respondent

Heard: 19 October 2016

Delivered: 18 November 2016

Summary: Opposed application to review an arbitration award

RABKIN-NAICKER J

[1] This is an opposed application to review an arbitration award under case number PSES 577-13/14. In the award, the third Respondent (the Arbitrator) found the dismissal of Mr Peter Motloung (Motloung) to have been substantively unfair. Motloung was reinstated but without retrospective effect. This meant that in terms of the award for the period 20 September 2013 until the date of the Award, 11 December 2014, he received no back-pay. He was ordered to report to school on 1 February 2015 which he duly did, before condonation had been granted for the late filing of the review application. It was common cause at the hearing of this application that he has continued to perform his duties ever since, without receiving any salary.

[2] Motloung has been an educator teaching mathematics at Falesizwe Secondary School, since the 29 January 1992. He had a clean

disciplinary record and at the time of his dismissal he was Acting Principal at Falesizwe Secondary School. It was common cause at the arbitration proceedings that Motloung was well loved and respected by his pupils and peers alike and is an excellent maths teacher.

[3] It was further common cause at the arbitration that he was elected as a PR Councillor in Mafube Municipality in May 2011. In April 2013, he received a letter from his employer in which he was called upon to provide written reasons why disciplinary action should not be taken against him for an alleged contravention of the Employment of Educators Act 76 of 1998 (EEA). The letter read as follows:

“

RE: AUDI ALTAREM PARTERM RULE REPRESENTATION // YOURSELF, PERSA NO: 12089842

Kindly be informed that it has come to my attention that you have been working as a Councillor at Mafube Local Municipality and you have been earning a salary/remuneration without seeking necessary and required permission as required by the Employment of Educators Act 76 of 1998.

You are advised that your actions are contrary to the provisions of section 33 of the above mentioned Act.

Owing to the seriousness of the allegations, you are hereby required to submit written reason and/or submission as to why I should not institute disciplinary action against you and forward same on or before 03/05/2013 to the following address……

Take note that should you fail to submit your written representation and/or reasons as requested above it will lead to immediate

institution of disciplinary action against you without any further notice.

Your prompt response will be highly appreciated.

Yours faithfully

Mr RS Malope

HOD: Education

Free State

Date: 22/04/2013

[4] Motloung replied to the letter and his submissions to which documentary proof were attached were contained in the bundle of documents before the arbitrator. His letter reads as follows:

“Your correspondence date the 22nd April 2013 on the above subject bears reference.

I now make my submission as follows:

1. The contention that I have been working as a Councillor at Mafube Local Municipality and I have been earning a salary/remuneration without seeking necessary and required permission is entirely inaccurate as illustrated by the points/facts hereunder.

2. After the May 2011 Local Government elections I set out to seek the said permission. After accessing the required application form I sought advice on the way forward from a certain Mr Geldenhuys who is attached to the Legal Section at the District Office (Fezile Dabi). He told me after filling in the form I had to hand it over to my Principal, Mr MJ Magagula, who in turn had to forward it to the SMGD (Mr D Steytler). I signed the form on the 8th September 2011 and my Principal signed it on the 9th September 2011. The copy is attached hereto.

3. Our school’s Register for the Outgoing Mail indicates that the mentioned forms were given to the SMGD, by Me MA Chele (Administrator), on the 19th September 2011 during one of his routine visits to the school. The extract from the said register is also attached hereto.

4. On the 24th April 2013, I e-mailed my District Director, Mr VH Chuta, around the same issue as per the attached copy but no response has been

forthcoming.

Based on the above information I believe I did everything to comply with the provisions of Section 33 of the Employment of Educators Act 76 of 1998. I am firmly of the view that I have supplied enough evidence and facts to back my assertion that I did everything in my power to attain compliance. In my view I am not qualified to dictate to your office not to institute disciplinary action against me. Instead, I leave that to your capable self….”

[5] On or about 6 June 2013, the Applicant served Motloung with a charge sheet and a date for a disciplinary enquiry to be held on 19 June 2013. The matter did not proceed on 19 June 2013 as Motloung objected to the charge sheet on the basis that it was vague. The Applicant responded by serving him with an amended charge sheet on 3 July 2013 with new dates of the disciplinary enquiry set for the 15 to the 17 July 2013.

[6] In terms of the amended charges Motloung was charged with two main charges and one alternative charge. He was initially represented by the South African Democratic Teachers Union (SADTU) but later terminated the union’s mandate and requested to be represented

by a legal practitioner, Mr Andries Richter. After Richter had been fully instructed it was decided that the Applicant would tender a plea of guilty on count one (1). The Department agreed to withdraw the alternative charge to count one (1) and count two (2) against him.

[7] Count one (1) read as follows: “You have contravened Section 18(1) (a) of the Employment of “Education” Educators Act 76 of 1998, (EEA) in that on or about 23 May 2011 you committed an act of misconduct when you failed to comply with or contravened the provision of Section 38 of the Act (EEA) when without prior permission from the Head of Department (HOD) you resumed duties as Proportional Representative Councillor (PR Councillor) for Mafube Local Municipality.

[8] While there was a plea bargain as aforesaid, the parties could not agree on a sanction. It appears from the record before the arbitrator that Motloung’s attorney was attempting to convince the Department that a final written warning for what was ‘a

technical offence’ was appropriate. However this was not accepted and a disciplinary hearing ensued.

[9] On 20 September 2013, Motloung received the outcome of the hearing in which he was found guilty and dismissal was the recommended sanction. He received his dismissal letter on 11 October 2013 and filed an appeal in the prescribed form in October 2013. He received the outcome of his appeal on 18 November 2013 in terms of which the outcome and sanction of the Chairperson was confirmed.

[10] In submission before me, Mr Molemoeng for the Applicant did not place reliance on the heads of argument filed on Applicant’s behalf (wisely, with respect) but limited his submission to the review grounds set out in paragraph 17 of the founding affidavit as follows:

“The review is brought on the basis that there is a defect in the award which calls for the reviewing and the setting aside of the award. The award suffers from the following grounds: first, the third respondent committed a gross irregularity in failing to determine on the seriousness of the misconduct, that dismissal was an appropriate sanction. The third respondent’s award to the effect that there was an inconsistent treatment of discipline on this issue by the Department and therefore notwithstanding the seriousness of the offence, the First Respondent ought to be reinstated, is irrational, and it is one that no decision maker in the position of the third respondent would have made. In fact, the third respondent’s finding that there was no breakdown of trust relationship because the First Respondent seem to be liked by colleagues and learners at school, constitute a gross irregularity.”

[11] Regarding the issue of inconsistency the Applicant’s witness at the arbitration who was manager to the First Respondent’s Head of Department testified that he was aware of other educators who were councillors, yet he could not confirm if they received permission from their HOD to earn remuneration outside of the Department.

[12] A further witness on behalf of the Applicant, a Mr. J Makolo, who works in the anti-fraud and corruption unit testified that two other educators, KC Kanao and Moloi were also Councillors, yet no disciplinary action had been taken against them due to the fact that the Department only began its investigation process in 2012.

[13] On behalf of Motloung, Kanaono testified that he only applied for permission to earn remuneration as a Councillor in 2006, this after he had been receiving such remuneration from 2002 He further testified that no disciplinary action had been taken against him when he did seek the necessary permission in 2006.

[14] The arbitrator’s assessment of the evidence on inconsistency is noteworthy:

“6.3 In the matter of SACCAWU and others V Irwin & Johnson Ltd 1998 8 BLLR 741 (LAC) the court decided that consistency is simply an element of disciplinary fairness and it is the perception inherent in selective

discipline that makes it unfair.

6.4 After consideration of all the evidence in this matter it is evident that the Respondent’s witness conceded that no disciplinary action was taken against any employee who breached the provisions of Section 33 (1) of the EEA prior to 2012. Thereafter an investigative team was set up to investigate alleged breaches of this section of the EEA. Respondent’s witness Makolo from the anti-fraud and corruption unit was forced to concede that investigation only commenced after a complaint was lodged. This appears to have been the case in Applicant’s situation although details of the complaint appear to be information that the Respondent is not willing to disclose.

6.5 No concerted plan was made to investigate all employees who performed work outside of the Respondents. No statistics could be furnished to show how the investigations would and did unfold. The ad hoc, wait-for-a complaint, strategy adopted by the Respondent meant that certain employees could be investigated and disciplined and others who were doing the same thing might not be. It also makes investigations themselves very arbitrary since it opens the door for complaints to be lodged for ulterior motives.

6.6 I find that the Respondent’s modus operandi in investigating alleged breaches of Section 33 (1) of the EEA, from 2012 creates a perception of selective discipline and renders their actions inconsistent and thus unfair.”

[15] This finding on inconsistency is imminently reasonable, and the fact that the Department simply did not bother to respond to Motloung’s request for permission to serve as a councillor after the May 2011 elections and then sought to charge him years later is further support for the Commissioner’s view that the conduct of his employer was unfair.

[16] On the issue of breach of trust Mr Naidoo for Motloung is correct to submit that the Applicant bore the onus to prove same[1], yet failed to do so. The witness led by the Applicant at arbitration did not work directly with Motloung and those that did, such as the previous Principal Mr. Magegula, testified to the fact that there was no breakdown in trust between Motloung and the district level of the Department of Education. I note also the evidence of Motloung’s standing among pupils and their parents and his reputation of being an excellent maths teacher and leader of the school. The Commissioner was further correct in accepting that Motloung was not charged for an act of dishonesty, as confirmed by the Applicant’s own witnesses at the arbitration.

[17] Given the urgent need for our children to enjoy a good education, more especially in the field of mathematics, it is troubling that a case such as this should have been rigorously pursued through the courts by the Applicant. The review application stands to be dismissed. Motloung has been working at his post for no remuneration since the Award was issued. The court trusts that his employer will urgently meet its reciprocal obligations in this regard. I am taking the unusual step of directing the State Attorney to ensure that the Honourable Minister of Basic Education receives a copy of this judgment.

[18] I make the following order:

Order

1. The review application is dismissed with costs.

2. The State Attorney Bloemfontein is directed to ensure that a copy of this judgment is sent to the Honourable Minister for Basic Education for her attention;

__________________________

H Rabkin-Naicker

Judge of the Labour Court of South Africa

APPEARANCES

For the Applicant: Mr Molemoeng

Instructed by:

State Attorney Bloemfontein

For the First Respondent: Mr M Naidoo

Instructed by:

Corne Boshoff Attorneys

[1] Edcon Ltd v Pillemer NO & Others (2009) 30 ILJ 2642 (SCA)