The dismissal of an Eastern Cape teacher who was found guilty of having fabricated marks for more than 50% of grade 12 pupils, which led to the delay in the issuing of the school's matric results, was substantively and procedurally fair.
The Education Labour Relations Council made this award recently as it dismissed an application referred for arbitration by Malusi Goodman Nyengane, who was employed at Pakamani Senior Secondary School in Butterworth.
Nyengane's was dismissed on July 12 2024 for events that occurred during October 2022.
He complained that his dismissal was substantively and procedurally unfair and sought reinstatement.
The education department discovered that Nyengane and two other teachers had fabricated marks for more than 50% of grade 12 pupils and irrationally and randomly inflated marks for the controlled test and the department of basic education task known as the common task assessment.
His conduct resulted in grade 12 Life Orientation pupils getting their results late and seven others having to rewrite a controlled test.
Nyengane pleaded guilty to all four charges, was found guilty and a sanction of dismissal was imposed.
The department said after allegations of fabrication of pupils’ Life Orientation marks against Nyengane cropped up, an investigation was conducted. It was recommended that Nyengane be subjected to disciplinary processes.
The department said it took time for it to serve Nyengane with disciplinary charges and notice to attend his hearing as he had been involved in an accident and was sick for a long time. It was only when he returned that he was charged for his dishonest behaviour.
The department said it regarded Nyengane’s conduct as having been serious enough to warrant dismissal.
Nyengane’s case was that he pleaded guilty to the charges as a show of remorse to the offence. He had been employed by the department for more than 20 years with a clean disciplinary record.
One of his gripes was over the delay in charging him and completing his disciplinary processes.
He said the misconduct happened in October to December 2022 when the final matric examinations and assessments were held. The offence was discovered in January 2023, but he was only served with disciplinary charges in November 2023.
Arbitrator Mxolisi Alex Nozigqwaba heard testimony from Thandeka Mdoda, the department’s Amathole East District labour relations officer, who said her section conducted the investigation in 2023 and its investigation report was penned on June 19 2023.
One of the implicated teachers resigned in May 2023, when the investigation was still being conducted. He was deemed to be dismissed on July 21 2023, as he resigned while investigative processes towards his disciplinary hearings were held.
Mdoda testified that charges for misconduct were drawn and served to Nyengane and another implicated teacher after June 19 2023. After having been served with charges and summoned to disciplinary proceedings, the other implicated teacher submitted a resignation letter. She was deemed to be dismissed on July 5 2024.
Mdoda said there was a delay in commencing Nyengane’s disciplinary hearing as he had been sick.
The school principal, Dumazile Majavu, testified that when the investigation finished in 2023, Nyengane would on most occasions not be on duty due to ill health.
There were various sick leave forms Nyengane had submitted for days in January, February, July, August and September 2023.
Majavu testified there were 200 Life Orientation pupils affected by the incident.
Nyengane said he felt he was treated unfairly as there were two teachers in the Amathole district who had committed offences similar to his but were given sanctions short of dismissal. One was suspended without pay and the other was demoted.
Nyengane also learnt about a woman from the Nelson Mandela Bay district who was also charged for examination-related misconduct similar to his but walked away with a sanction short of dismissal, which was suspension without pay.
The department argued that the two teachers who were involved in the exam scam with Nyengane were dismissed after they resigned while their disciplinary processes were still under way. Nyengane thus could not be said to have been treated harshly.
Nozigqwaba said it had been proven that Nyengane was solely to be blamed for the delay in finalising the completion of the internal disciplinary proceedings.
On the challenge that other teachers were handed sanctions short of dismissal, Nozigqwaba said Nyengane had pleaded guilty to all four charges, and in one of the charges the sanction of dismissal must be imposed.
“The intention of the legislature, which is to be given effect to, is that: should an educator be found guilty of any offence in section 17(1) of the Employment of Educators Act he or she must be dismissed.”
Nozigqwaba said the fact that the department had previously breached this legislative provision and did not dismiss an educator before, granted no latitude to the commissioner to consider inconsistent application of this legislative provision.
“The fact that the employee had a clean disciplinary record with long service is also of no consideration.”
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