Web viewThe word “support” and “recommend” carry less weight as compared to “approve”. ... The posts of Ward Clerk ... (unreported case, JR 20-1-2-12)

ARBITRATION AWARD

Case Number: PSHS192-16/17

Panellist: Thando Ndlebe

Date of Award: 13 December 2016

In the ARBITRATION proceedings between:

NEHAWU obo MHLONGO, T.F APPLICANT

And

HOD - DEPARTMENT OF HEALTH, MPUMALANGA RESPONDENT

DETAILS OF HEARING AND REPRESENTATION

1. The matter was sat down before me as an arbitration process on 3 October 2016, 4 October 2016, 15

November 2016, 16 November 2016, 17 November 2016 and 18 November 2016 in Nelspruit. The

Applicant, Dr. Florence Thokozani Ntuli, was present and was represented by Mr. Ponoane, an attorney

from Ponoane Attorneys and as instructed by the National Health Education and Allied Workers Union,

(Nehawu).

2. The Respondent was represented by Mr. Theron, an attorney from Adendorff Attorneys.

3. The parties submitted bundles of documents and same were admitted and marked as Applicant’s

Bundle “A-1” and “A-2” and Respondent’s Bundle “B”.

ISSUES TO BE DECIDED

PSHS192-16/17 Page 1

4. I am required to determine whether or not the Applicant was unfairly dismissed by the Respondent, both

procedurally and substantively.

BACKGROUND TO THE DISPUTE

5. The Applicant was appointed by the Respondent on 1 August 2013 in the position of Deputy Director

General – District Health Services. The Applicant was earning a monthly salary of R109 978.51 at the time

of her dismissal on 20 May 2016.

6. The Applicant’s trade union referred her unfair dismissal to the Council and it believed that her dismissal

by the Respondent was procedurally and substantively unfair. The Applicant seeks retrospective

reinstatement as relief.

SUMMARY OF EVIDENCE AND ARGUMENTS

RESPONDENT’S CASE

7. The Respondent called in three witnesses in support of its case.

Advocate Charl Strydom

8. He an admitted advocate and possesses the following qualifications; Bachelor of Commerce (Law),

Bachelor of Laws (LLB) and Masters Degree in Labour Law (LLM). He was the chairperson of the

disciplinary hearing that resulted in the dismissal of the Applicant. He has been practising as an advocate

as from 2001 and specialises in forensics and Labour Law. He was appointed by the Respondent to chair

the Applicant’s disciplinary hearing as confirmed at page 276 of Bundle “B”.

9. The charges of misconduct against the Applicant were duplicated. At the commencement of the

disciplinary hearing he ruled that Charges 1, 2 and 6 be restructured into a single charge (new “Charge 1”.


He also ruled that Charges 3, 5 and 7 be restructured into one charge (the new “Charge 2”). The charges

that the Applicant was subsequently dismissed for at the disciplinary hearing were as follows;

Charge 1 - “Failure to avoid irregular and or unauthorised and or fruitless and wasteful expenditure in

relation to the appointment of three Ward Clerks at the Evander Hospital; and

Charged 2 - Failure to avoid irregular and or unauthorised and or fruitless and wasteful expenditure in

relation to the appointment of three Telkom Operators at the Evander Hospital”

10. The main issues that the Applicant was charged with by the Respondent related to financial misconduct.

The Applicant raised a procedural issue in respect of the Initiator and the initial Initiator, namely Mr.

Lehlohonolo was replaced by Mr. Dr. Tonie Botha. It is clear at his Findings Report at page 257 of Bundle

“B” that the charges of misconduct against the Applicant followed after a forensic investigation by Sedupe

& Metje Consulting (Pty) Limited. The Applicant was charged for recommending a process that resulted in

the appointment of 3 Ward Clerks and 3 Telkom Operators at Evander Hospital.

11. The Respondent’s Recruitment and Selection Policy requires that a recruitment and selection process

of filling positions must be finalized within a period of three months. It was confirmed by the Respondent as

set out in pages 226 and 227 of Bundle “B” that during the appointment of the 3 Ward Clerks and 3

Telkom Operators, that it had issued Circular 28 of 2013 and Circular 32 of 2013 which advised managers

not to appoint employees during the moratorium period. The essence of Circulars 28 of 2013 and 32 of

2013 was that the Respondent was not expected to fill vacancies during the 2013-2014 Financial Year. The

action of the Applicant by recommending the appointment of the 3 Ward Clerks and 3 Telkom Operators

amounted to her not having avoided the Department to incur irregular expenditure. The appointments of the

3 Ward Clerks and the 3 Telkom Operators were not properly authorised by the Respondent. The Applicant

was not co-operative during the forensic investigation by Sedupe & Metje Consulting.


12 What stood out to him during the disciplinary hearing were the following issues; two positions were

initially for two Ward Clerks and two Telkom Operators accordingly, but the vacancies were latter changed

to three per role, the moratorium of not filling posts was not followed and the recruitment process was not

finalized within the three months prescribed period. The actions of the Applicant lead to an over-expenditure

by the Respondent in the 2014-2015 Financial Year. The Evander Hospital fell under the direct

responsibility of the Applicant and she was therefore expected to comply with section 45(c) of the Public

Finance Management Act 1 of 1999 which provides that an official in a department “must take effective

and appropriate steps to prevent, within that official’s area of responsibility, any unauthorised expenditure,

irregular expenditure and fruitless and wasteful expenditure and any other collection of revenue”. It was the

evidence of Mr. Shabangu, Deputy Director-Budgeting, during the disciplinary hearing that made him to find

the Applicant not guilty of unauthorised expenditure.

13. There was no organogram that was presented by the Applicant during the disciplinary hearing to show

that the two extra positions for Ward Clerk and Telkom Operator existed. It was the evidence of Ms. Leya

Jiyane, Corporate Services Manager at Evander Hospital, that the Applicant was aware of the rule in

respect of the filling of vacancies and that the rule was transgressed. There was evidence that the Applicant

was not liable for causing the Respondent to suffer fruitless and wasteful expenditure. The Applicant did not

deny being involved in the appointment of 3 Ward Clerks and 3 Telkom Operators. During the disciplinary

hearing, the Respondent did not provide any evidence to indicate when the moratorium was uplifted.

However, the evidence of both Mr. Boikanyo of Sedupe & Metje Consulting and that of Ms. Jiyane was that

the Applicant committed the misconduct whilst the published Respondent’s moratorium was in place. The

Applicant failed to prevent irregular expenditure. In as much no evidence was lead by the Respondent to

prove that it always filled its vacancies within a period of three months, same cannot be construed to mean

that a rule in this regard did not exist.

14. The Hippocratic Oath of medical doctors is not only limited to saving lives. The Applicant came up with

excuses during the disciplinary hearing, like stating that her unit was understaffed and mentioned the


Hippocratic Oath. When the Applicant saw the defect in the memoranda that she signed, she should have

made written submissions to the Head of Department. He applied his mind before making a determination

of a sanction of dismissal as set out at pages 265 to 269 of Bundle “B”. He also considered the mitigating

circumstances of the Applicant and the aggravating circumstances of the Respondent before he decided on

the sanction of dismissal.

Under cross-examination, Advocate Strydom responded as follows;

15. He agreed that the Applicant was suspended for a long time before she was finally charged by the

Respondent. The disciplinary hearing was supposed to have commenced within a reasonable time after the

suspension of the Applicant. He agreed with a reference to a paragraph at page 238 of Workplace Law,

10th Edition, by John Grogan where it is stated that “a hearing must not be unreasonably delayed so that it

can be dealt with when it is still fresh in the minds of the parties”. He disagreed that a delay in charging an

employee after his or her suspension amounted to a waiver to conduct a disciplinary hearing. He decided

on a sanction of a dismissal against the Applicant after having considered all the evidence that was

presented and that the trust relationship had been broken between the Applicant and the Respondent.

16, In as much there was no financial loss suffered by the Respondent as a result of the Applicant’s action,

her misconduct involved unauthorized, fruitless and irregular expenditure. The Public Finance

Management Act 1 of 1999 (PFMA) states that fruitless expenditure is an amount that one cannot get

value for. The Respondent had to pay salaries as a result of the irregular appointments and same

amounted to irregular expenditure. At page 264 of Bundle “B” it is stated that “irregular expenditure is

expenditure, other than unauthorised expenditure, incurred in contravention of or that is not in accordance

with a requirement of any applicable legislation”. He confirmed that he did not make reference to a loss by

the Respondent of an amount of Three Hundred and Thirty Rands (R330 000-00) as wasteful expenditure.

He disagreed that his findings report in the disciplinary hearing of the Applicant lacked substance.


17. The financial impact to the Respondent as a result of the Applicant’s action only came into reality in the

2014-2015 Financial Year. There was no evidence of irregular expenditure that was occasioned by the

Respondent in the 2014-2015 Financial Year. The Applicant was not found guilty of wasteful expenditure

and the irregular expenditure came from irregular payments. He did not put amounts in his findings report

as he did not think it was necessary. He stated that his findings report related to the charges that were

levelled against the Applicant by the Respondent.

18. He agreed that the moratorium was up to the end of the 2013-2014 Financial Year, but irregular

expenditure is not linked a period because it can go beyond a specific period. The issue of the moratorium

had a financial implication for the Respondent in so far as section 81 of the PFMA is concerned. The

recruitment of the Ward Clerks by the Respondent started on 9 July 2013. The moratorium was effective as

from 30 September 2013. He did not draft the charges that were levelled against the Applicant. He

disagreed that the charges that were put the Applicant were vague and embarrassing. The reference in the

charges to February 2013 was a typing error. The Applicant was found guilty of failing to prevent irregular

expenditure as envisaged in section 45(c) of the PFMA.

19. He decided on the sanction of dismissal as he also considered public interest on the matter. The nature

of the charges also related to issues pertaining to a broken working employer-employee relationship that

had come to an end. It was not Applicant that appointed the extra employees, but she was pivotal in the

appointments. In as much there is no input by the Applicant in the Recommendation for Filling of Posts of 3

Ward Clerks at Evander Hospital dated 3 February 2014 and as appearing at pages 231 to 238 of Bundle

“B”, she “supported” the recommendation. The Applicant signed the Memorandum on 24 February 2014.

The recommendation dated 3 February 2014 was made by Ms. Hlatshwayo, the Chief Executive Officer of

Evander Hospital. The Applicant was supposed to have avoided irregular expenditure. It was the Head of

Department that prepared the Memorandum.


20. There might have been a discrepancy in dates in the Memorandum at pages 231 and 240 of Bundle

“B”. The fact that no person complained to the Member of the Executive Council about the irregular

appointments is irrelevant. The Applicant was charged by the Respondent for having failed to avoid

irregular expenditure. In terms of section 45(c) of the PFMA in the event a government process is wrong,

then the outcome will also be wrong. He also considered the Department of Public Service Labour Relations

Guidelines before deciding on a sanction of dismissal.

Mr. Mogomotsi Boikanyo

21. He is a Director of Sedupe & Metje Consulting and has a Bachelor of Commerce Degree in Forensics

and has also studied in the United States of America. Sedupe & Metje Consulting was appointed to conduct

investigations into acts of irregularities within the Respondent. The investigation and as confirmed at page

142 of Bundle “A”, discovered that Mr. Sithole (the Acting Chief Director Human Resources), Mr.

Makhubedu (the Deputy Director General - Finance), the Applicant (Deputy Director General – District

Health Services) and the Dr. Mhlongo (the Head of Department) supported the recommendations of a

recruitment panel to appoint three Ward Clerks instead of two and three Telkom Operators instead of two as

it was stated in the applicable advert. It was clear in the advert stated found at page 239 of Bundle ‘B” that

the adverts in July 2013 were for two (2) Ward Clerks and two (2) Telkom Operators accordingly.

22. There was negligence on the part of the Applicant in that she could have avoided the irregular

appointments as per the memorandum at pages 231 to 240 of Bundle “B”. The Respondent advertised

two (2) Ward Clerks and two (2) Telkom Operators positions; however the Applicant supported the irregular

appointments of two extra employees as confirmed in the abovementioned memoranda. The Applicant

infringed section 45(c) of the PFMA in that she failed to avoid irregular expenditure. The appointments of

the three (3) Ward Clerks and three (3) Telkom Operators were finalized beyond the three months period as

provided for in the Respondent’s Recruitment and Selection Policy and as set out at page 286 of Bundle


“B”. There was therefore non-compliance in respect of the Recruitment and Selection Policy by

approximately seven months.

23. The Respondent issued Circulars 28 of 2013 and 32 of 2013 wherein it issued a moratorium on the

filling of posts and on transfers. The Circulars as contained at paragraphs 227 and 228 of Bundle “B”

were addressed to the following officials, namely; Deputy Director-Generals, Chief Directors, District

Directors, Directors, Medical Managers, Chief Executive Officers, Nursing Managers and Heads of Human

Resources / HRD Practitioners, (my emphasis). The posts could only be filled during the moratorium period

only in exceptional circumstances. The Respondent invoked the moratorium on the filling of positions as it

was in dire financial difficulties. The Applicant was aware of the moratorium on filling vacant positions.

24. In as much the recommendations for the irregular appointments were made during the 2013-2014

Financial Year, there was still financial misconduct on the part of the Applicant even though the

appointments were effective in the 2014-2015 Financial Year. There were no posts that were supposed to

be filled within the Respondent in the 2013-2014 Financial Year. Prejudice to the Respondent is not a

requirement in acts of irregular financial expenditure.

Under cross-examination Mr. Boikanyo responded as follows;

25. His company was appointed by the Respondent to conduct investigations in July 2014 by involving

alleged irregular appointments of 1062 staff. The Respondent then extended the scope of the activities of

Sedupe & Metje Consulting on 18 November 2014. Sedupe & Metje Consulting was given authority as

provided by the Respondent to appoint Dr. Tonie Botha as an Initiator in the disciplinary hearing of the

Applicant on 1 February 2016. The role of Sedupe & Metje Consulting also involved in it assisting in

disciplinary hearings within the Respondent.


26. Dr. Tonie Botha is an external consultant. Dr. Tonie Botha is not within the employ of Sedupe & Metje

Consulting and he was appointed by the former to assist as an Initiator. He brought in Dr. Tonie Botha as a

Consultant. There was nothing irregular with the appointment of Dr. Tonie Botha as his appointment was

made by the Respondent’s Head of Department, namely Dr. Morake. The person who raised the issue of

the irregular appointments was the Head of Department. The Applicant in her appointment as a Deputy

Director-General was bound by the Senior Management Handbook, the Labour Relations Act 66 of

1996, the Public Finance Management Act 1 of 1999 and the Respondent’s Recruitment and Selection

Policy. The PFMA provides that the Respondent’s officials must avoid irregular expenditure. He could not

state which specific rule was broken by the Applicant. He never interviewed the Applicant during the

forensic investigation period as she was not co-operative.

27 In the event the then Head of Department, namely Dr.J.V Dlamini, was in the employ of the Respondent

at the time the Applicant was charged, he could also have been disciplined for misconduct. Mrs

Hlatshwayo, the Chief Officer of Evander Hospital, was not charged by the Respondent even though she

supported the irregular appointments. There was no need for the investigators to interview Mrs. Hlatshwayo.

There was also need to interview for recruitment panel that was involved in the irregular appointments. In

the event the interviewing panel wanted to fill in the vacancy of a candidate who had passed away during

the finalization of the appointment process, a deviation process should have been submitted to the

Respondent’s top management to that effect. The Respondent formally charged Mr. Sithole, the current

Acting Chief Director -Human Resources and Development, with misconduct.

28. The notice on the moratorium on appointments by the Respondent as found at pages 230 and 231 of

Bundle “B” was also directed to Deputy Director-Generals. The Respondent was charged and dismissed

Mr. Makhubedu, the Deputy Director-General Finance for his failure to avoid irregular expenditure. The

Respondent did not charge the then Head of Department, Dr. J.V Dhlamini, for his failure to avoid irregular

misconduct. The stance of the State is to charge employees who are involved in acts of irregular

expenditure with misconduct.


Ms. Sipho Elizabeth Motau

29. She is appointed by the Respondent as Chief Director-Primary Health Care and is also the Acting

Deputy Director-General, Clinical Health. The process that involves the filling of vacancies will start at the

hospital or at facility level. The recommendation to fill in vacancies will then be forwarded to the Deputy

Director General. A recommendation is an opinion that you support a certain decision. The Circular at page

227 of Bundle “B” relates to a situation whereby the Respondent advised managers not to fill in vacancies

and to issue appointment letters. The moratorium was issued in September 2013 and for the 2013-2014

Financial Year. The Respondent’s managers were not supposed to fill positions in the organogram that

were not budgeted for

Under cross-examination, Ms. Motau responded as follows;

30. She was a junior to the Applicant and they used to work closely. A recommendation is not a decision but

it assists the decision-maker to make the final call. Before a final decision is made by the Head of

Department, it must pass through other managers for support. Appointments of employees within the

Respondent are a competency of the Member of the Executive Council. It is the Head of Department who

has the power to make recommendations to the Member of the Executive Council. When the Deputy

Director-General receives a memorandum recommending the filling of vacancies, he or she must check if

there is a budget for the posts.

The Applicants’ case

Dr. Florence Thokozani Mhlongo

31. She was head-hunted by the Respondent from Kwa-Zulu Natal to assist in Mpumalanga. In July 2013 it

was agreed by the Respondent and the Kwa-Zulu Natal Department of Health that she would operate in

PSHS192-16/17 Page 10

both provinces. She was formally appointed by the Respondent on 1 August 2013 as a Deputy Director-

General of District Health Services. The need to fill vacancies in Evander Hospital was identified by the

Respondent before she joined it and as confirmed at page 239 of Bundle “B”. The Chief Executive Officer

of Evander Hospital, Ms. Hlatshwayo, identified the need. The advert for the positions in dispute was

advertised by the Respondent before she joined the Department.

32. In terms of section 45(c) of the PFMA her role was to identify the need; the role of the Acting Chief

Director of Human Resources, namely Mr. Sithole, was to check if policies and procedures were complied

with and the role of the Deputy Director-General, namely Mr. Makhubedu, was to check if there was a

budget for the positions. The demander or source for the posts in dispute was Evander Hospital as

represented by its Chief Executive Officer, Ms. Hlatshwayo and in consultation with her Head of Corporate

Services, namely Ms. Leah Jiyane.

33. Evander Hospital had been under-resourced for years before her time with the Respondent. She was

not involved in the day to day operations of Evander Hospital. There was once a time when State clinics

were burnt down in the Evander area and same lead to an influx of patients into Evander Hospital. The

memorandum on the appointment of three (3) Ward Clerks at Evander Hospital and as appearing at pages

231 to 238 of Bundle “B” was signed by the signatories as follows; Ms Hlatshwayo signed on 20 February

2014, Applicant signed on 24 February 2014, Mr. Sithole signed on 24 February 2014, Mr. Makhubedu

signed on 27 February 2014 and Dr. J.V Dlamini (HOD) signed on 3 March 2014. She was not the final

decider in the process of the appointments, she merely supported. She was convinced that there was a

need for three (3) Ward Clerks for service delivery hence she signed the memorandum.

34. It was Mr. Sithole who found that there was no problem with the filling of three (3) Ward Clerks

positions. Mr. Makhubedu also said that the posts must be for the 2015 priority list. She was advised by the

Head of Department to confirm with Dr. Pule, the Clinical Manager of Evander Hospital, if there was a need

and he answered to the affirmative. Her signature that appears in the memorandum was merely an opinion.

PSHS192-16/17 Page 11

It was the Head of Department who exercised his power to appoint by referring back to the source and by

him having acted on Mr. Makhubedu’s comments. It was not her sole signature that influenced the

Respondent to appoint the Ward Clerks. The final signed memorandum in respect of the appointment of the

Ward Clerks would have come long after the 3 March 2014.

35. She does not understand why she was dismissed by the Respondent. The Respondent dismissed her

for having signed a memorandum in respect of the Ward Clerk position that she signed on 24 February

2014 whereas she joined the Respondent on 1 August 2013. It was unfair that the Respondent dismissed

her for something that had not happened as the appointment letters that were signed by Mr. Sithole were

with effect from 1 April 2014. She signed the memorandum in respect of the appointment of the three (3)

Telkom Operators on 18 February 2014 and as confirmed at page 245 of Bundle “B”.

36. It was no proper for Dr. Tonie Botha to be an Initiator in her disciplinary hearing as he not an employee

of the Respondent. Sedupe & Metje Consulting was not supposed to have appointed Dr. Botha to initiate in

her disciplinary hearing. Mr. Boikanyo is not an employee of the Respondent. None of her Supervisors

testified in the arbitration proceedings in respect of a break of trust between her and the Respondent. She

still has a good working relationship with the Respondent. She would like to go back to work.

Under cross-examination, Dr. Mhlongo responded as follows;

37. She conceded to being knowledgeable of the contents of the Senior Management Services (SMS)

Handbook, the Labour Relations Act and other government prescripts. She understood that the SMS

Handbook at paragraph 2.6(1) and as found at page 11 of Bundle “B” that the Respondent may appoint

someone from outside to initiate an enquiry. The appointment of Dr. Tonie Botha was improper as he was

not appointed by the Respondent but by Mr. Boikanyo’s Consulting firm. The Investigator and the

Prosecutor were from the same company.

PSHS192-16/17 Page 12

38. She could not say that the Respondent was in dire financial state when she joined it. She agreed that

the signature that appears on the memoranda for the appointments in dispute is hers. She testified that she

understood the definition of “irregular expenditure”. She also confirmed that she understood section 45 of

the PFMA. She agreed that the memos that she signed were in respect of the appointment of three (3)

Ward Clerks and three (3) Telkom Operators whereas the advert at page 289 of Bundle “B” was for two

vacancies for each post respectively. She signed the memo after having verified the information with

Evander Hospital. There is no law that states that one cannot fill three (3) posts if there are two (2)

vacancies. There was no irregular expenditure that was occasioned by the Respondent as result of her

actions. When she received the memorandum at page 238 at Bundle “B”, she verified the need with the

hospital.

39. The case at hand does not involve irregular expenditure. The Respondent has withdrawn charges

against Mr. Maxwell Sithole, the Acting Chief Director-Human Resources. Mr. Sithole is the author of the

very same documents but he was found not guilty after a disciplinary hearing. She was prejudiced by the

appointment of Dr. Danie Botha as an Initiator in her disciplinary hearing as it created a perception of bias.

She supported the appointments in dispute. The word “support” and “recommend” carry less weight as

compared to “approve”. An approval can always be overridden. She was not part of the recruitment and

selection process. Candidates responded to an advert and a transparent process was followed. The

appointments in question were all regular.

ANALYSIS OF EVIDENCE AND ARGUMENTS

40. In my analysis I have considered the evidence and written closing arguments from both parties.

Procedural fairness

41. At the commencement of the proceedings the Applicant submitted that the only challenge she had in so

far as procedural fairness is concerned, was only the issue around the appointment of the Initiator. The

PSHS192-16/17 Page 13

evidence of the Respondent was that there was nothing improper and untoward the appointment of Dr.

Tonie Botha as an Initiator in the disciplinary hearing of the Applicant. It was the evidence of the

Respondent through Mr. Boikanyo that Dr. Tonie Botha was appointed by his forensics company, namely

Sedupe & Metja Consulting, as a consultant to be the Initiator. The Applicant submitted that it was not

procedural for the service provider that had conducted the forensic investigation to be also involved in the

prosecution of the Applicant.

42. The Respondent made reference to page 11 of the Bundle “B” at paragraph 2.6 (1) in the SMS

Handbook where it is provided that “if the alleged misconduct justifies a more serious form of disciplinary

action than that provided in paragraph 2.5, the employer must appoint a person, from within or from outside

the public service, as the representative to initiate the enquiry”. The Respondent’s position was that since

Dr. Tonie Botha was “a person from outside the public service”, there was nothing improper for him to

initiate the disciplinary hearing.

43. According to Mr. Boikanyo, Dr. Tonie Botha was appointed with effect from 1 February 2016 as the

Initiator of the Applicant’s disciplinary hearing. Mr. Boikanyo further explained that the appointment of Dr.

Botha was effected after the terms of reference of Sedupe & Metja Consulting were extended by the

Respondent. The extension of scope on the forensic investigation by Sedupe & Metja Consulting was

granted by the Respondent on 18 July 2014 as per letter found at page 292 of Bundle “B”. Sedupe &

Metja Consulting appointed Dr. Tonie Botha as an Initiator on 1 February 2016 and as confirmed in

correspondence appearing at page 824 of Bundle “A”.

44. The question that therefore needs to be answered is as follows; did the appointment of Dr. Tonie Botha

by Sedupe & Metja Consulting made the entire process procedurally flawed, in its entirety? In as much an

observer of the disciplinary hearing of the Applicant would have found the relationship between the Initiator

and the Forensic Investigation company susceptible to bias, one cannot be sure this if relationship would

have influenced the “impartiality of the chairperson”. No evidence was lead before me to indicate that there

PSHS192-16/17 Page 14

was a direct relationship between Adv. Strydom (the Chairperson) and the Initiator. One respects that the

Sedupe & Metja Consulting was correct to recommend disciplinary against the Respondent’s officials that

were found wanting in their report. It would be my recommendation that the Respondent should in future not

authorize an external entity that had conducted forensic investigations to also be the prosecutor. It is clear

at paragraph 42 above that the SMS Handbook allows a State entity to appoint a person to appoint

someone from outside the Public Service to initiate a disciplinary hearing”. However, nowhere in the SMS

Handbook is it provided that the power or authority to appoint a prosecutor in Public Service disciplinary

hearing can be outsourced to service providers. I do note that there was an extension of the scope of

Sedupe & Metja Consulting to also assist in internal disciplinary hearings, but same opened the

Respondent to avoidable and unnecessary scrutiny.

45. Having submitted at paragraph 44 above that the Respondent should have avoided authorizing

Sedupe & Metja Consulting to appoint the Initiator, I do not for find that the appointment of Dr. Tonie Botha

made the disciplinary hearing procedurally unfair in its entirety. In the matter of Highveld District Council

v CCMA & Others (2002) 12 BLLR 1158 (LAC), it was highlighted that procedural irregularities which do

not cause demonstrable or material prejudice to the employee are not in themselves sufficient to renderer a

dismissal unfair. Dr. Tonie Botha was not the appointed as a decision maker in the disciplinary hearing of

the Applicant.

46. The minimum requirements of procedural fairness in disciplinary hearings were dealt with in the matter

of Avril Elizabeth Home for the Handicapped v CCMA & Others (2006) 27 ILJ 1644 where it was held

that the employer was merely required to conduct an investigation, give the employee or his representative

an opportunity to respond to allegations after a reasonable period and thereafter to take a decision and give

the employee notice thereof. The Applicant’s rights to procedural fairness where therefore not violated by

the appointment of Dr. Tonie Botha by Sedupe & Metja Consulting.

PSHS192-16/17 Page 15

47. I also would like to re-emphasize that the fact I was not provided with evidence which confirmed that

that the Applicant had direct knowledge of the Initiator interacting with the Chairperson or witnesses during

or before the disciplinary hearing. In the event same was presented to me by the Applicant, I might have

been swayed to find that there was procedural unfairness in this matter as was the case in the matter of

Ramchabi v Bureau Veritax (2014) 35 ILJ 2900 (CCMA). In the Ramchabi matter (supra) the

Commissioner held that where the chairperson of the disciplinary hearing engaged in conversation with the

initiator and witnesses before and after the disciplinary hearing, it would be reasonable for the employee to

perceive bias, and the dismissal was found to be procedurally unfair.

48. In her Heads of Arguments, the Applicant submitted at paragraph 10.22 that “to date there is no proof

shown by Mr. Boikanyo that the Employer specifically provided him with a letter to appoint Dr. Tonie Botha

to the Prosecutor / Initiator of the disciplinary hearing. The contrary on the other hand was only a clear letter

from Mr. Boikanyo’s company unlawfully appointing Dr. Tonie Botha on his company letterhead. It is

therefore the Applicant’s submission that that an unlawful process done by Mr. Boikanyo of Medupe & Metja

Consulting cannot translate to a lawful process and this is therefore makes such action procedurally unfair”.

49. I must again emphasize that the manner the Respondent outsourced the appointment of Dr. Tonie

Botha to Medupe & Metja Consulting is not advisable. Be that as it may the appointment of Dr. Tonie Botha

was therefore not material to render the dismissal of the Applicant procedurally unfair. In the event there

were other procedural irregularities that were proven by the Applicant during the arbitration proceedings,

same would have possibly swayed me to a different finding. I therefore find the Respondent has complied

with Item 4 of Schedule 8 – Code of Good Practice: Dismissal, in the Labour Relations Act 66 of 1995

(as amended). The dismissal of the Applicant was procedurally fair.

Substantive fairness

PSHS192-16/17 Page 16

49. The Applicant was dismissed after being found guilty of misconduct in that she failed the avoid the

Respondent to be exposed to irregular expenditure in respect of three (3) Ward Clerks and three (3) Telkom

Operators positions at Evander Hospital. The version of the Applicant was that in her role as Deputy

Director-General of Health Services, she lacked authority to make appointments. The evidence by Mr.

Boikanyo was that his forensics company was appointed by the Respondent in July 2014 in order to

investigate irregularities relating to appointments within its ranks. The Applicant denied ever being involved

in the misconduct she was subsequently charged for by the Respondent.

50. Advocate Strydom, who was the Chairperson of the Applicant’s disciplinary hearing, testified that the

Applicant was supposed to avoid irregular expenditure in any of her actions or inactions during the scope of

her employment. Advocate Strydom submitted that the Applicant by virtue of being a Top or Senior

Manager, she was expected to be au fair with the provisions of the SMS Handbook, the Labour Relations

Act, the PFMA and other applicable prescripts. The Applicant conceded during cross-examination that she

is aware of all the aforementioned pieces of legislations and polices. The Applicant under cross-

examination stated that she did not believe that her actions (as will be unpacked hereunder) exposed the

Respondent to irregular expenditure. To borrow the words of the Applicant during the arbitration

proceedings, she said she merely “supported” the appointments of the three (3) Ward Clerks and three (30

Telkom Operators.

51. It was admitted by the Applicant during the arbitration that she put her signature in the memorandum

after same was sent to her by Ms. Hlatswayo. On the other hand, it was common cause during the

arbitration proceedings that the advert for the positions in question and as contained at page 239 of

Bundle “B” read as follows; “Ward Clerk (2 Posts)” and “Telkom Operator (2 Posts)”. A document dated 3

February 2014, signed by the Applicant and appearing at page 231 of Bundle “B” is entitled as follows;

“RECOMMENDATION FOR FILLING OF ADVERSTISED POSTS OF X3 WARD CLERKS AT EVANDER

HOSPITAL”. Another document dated 3 February 2014, signed by the Applicant and appearing at page

240 of Bundle “B” is entitled as follows; “RECOMMENDATION FOR FILLING POSTS OF ADVERTISED

PSHS192-16/17 Page 17

POSTS OF X3 TELKOM OPERATORS AT EVANDER HOSPITAL”. In the latter mentioned two

memoranda it is further stated as follows; “1. Reason for vacancy - The posts of Ward Clerk (Telkom

Operator in the applicable memo) at Evander Hospital are vacant and funded on the approved organogram

of this institution. 3 - The posts of Ward Clerk (Telkom Operator in the applicable memo) were advertised on

08 July 2013 in the Local advert with reference number MPDoH-Local/July/2013/007 and the closing date of

09 July 2013. A copy of the advert is attached hereto as “Annexure A”. (My emphasis). One must note

that I stated above that the Applicant did not deny signing the two memoranda. The memoranda were

prepared by Mrs. Hlatshwayo, the Chief Executive Officer of Evander Hospital (who will later be “attended

to” in this Award hereunder, amongst others).

52. I now would like to attend to the issue of the moratorium on the filling of vacancies and transfers by the

Respondent (as was explained in the Summary of Evidence above) in memos dated 4 October 2013 and

11 November 2013. The Respondent submitted through Advocate Strydom and Mr. Boikanyo that when

the Applicant signed the two memoranda from Mrs. Hlatshwayo in respect of the appointments in dispute, it

was within the moratorium period. The Applicant submitted that by the time she signed the two memoranda,

the moratorium was not place. I find the submission by the Applicant in this regard as she signed the

memoranda on 18 February 2014 and 24 February 2014, questionable. I am therefore satisfied that the

Applicant was aware of the moratorium on the filling posts at the time of her “supporting” the filling of the

positions in dispute. We will also remember that the Applicant submitted under oath that she joined the

Respondent effectively on 1 August 2013. It was also the evidence of Ms. Motau that the Respondent

instructed its managers though Circular 28 and Circular 32 not appoint employees into positions that were

not budgeted for.

54. Advocate Strydom was vehement in his testimony when he intimated that the Applicant contravened

section 45(c) of the PFMA by putting her signature in the memoranda dated 18 February 2014 and 24

February 2014 in that she failed “to take effective and appropriate steps to prevent, within that official’s area

of responsibility, any unauthorized expenditure, irregular expenditure, and fruitless and wasteful expenditure

PSHS192-16/17 Page 18

and any other collection of revenue”. I agree with Advocate Strydom that the actions of the Applicants in so

far as “supporting the appointments was concerned”, was in contravention of section 45 (c) of the PFMA.

The Applicant on the other testified under cross-examination that there is nothing wrong (in the Public

Service) to filling three posts when two vacancies were advertised. I humbly disagree with the Applicant in

this regard, as I will elucidate in the following paragraph.

55. The PFMA defines “irregular expenditure” as expenditure, other than unauthorized expenditure,

incurred in contravention of or that is not in accordance with a requirement of any applicable legislation”.

Moreover, at section 45 of the PFMA (Responsibilities of other officials) it is stated that, an official in a

department, trading entity or constitutional institution –

(a) must ensure that the system of financial management and internal control established for that

department, trading entity or constitutional institution is carried out within the area of responsibility of

that official;

(b) is responsible for the effective, efficient, economical and transparent use of financial and other

resources within that official’s area of responsibility,

(c) must take appropriate steps to prevent, within the official’s area of responsibility, any

unauthorised expenditure and fruitless and wasteful expenditure and other collection of revenue, and

(e) is responsible for the management, including the safe-guarding, of the assets and the

management of the liabilities within that official’s area of responsibility.

It is against this background of applicable PFMA provisions that in the event the Applicant would have

applied her mind, she would have possibly not have “supported” the filling of the positions in dispute.

Moreover, the positions in dispute were not filled in within the prescribed three months time frame as

prescribed in the Respondent’s Recruitment and Selection as envisaged at paragraph 9.1 at page 286 of

Bundle “B”.

PSHS192-16/17 Page 19

56. When I narrowed down issues in dispute with the parties at the commencement of the proceedings, the

Applicant did not raise the issue of the inconsistent application of the Respondent’s disciplinary procedure.

However, it became apparent during the proceedings that the Applicant was not happy with the fact that

some of the signatories of the documents that resulted in her dismissal were either not charged with

misconduct or dismissed by the Respondent. In my capacity as an arbitrator I strongly believe that I will be

failing my duties in the event I do not deal with the issue of consistency. I therefore agree with the

sentiments of the Applicant in as far as inconsistency is concerned.

57. It was the evidence of the Applicant that Mrs. Hlatshwayo, the Chief Executive Officer of Evander

Hospital, was not charged by the Respondent. It was Mrs. Hlatshwayo who was the first signatory in the

memoranda that lead to the dismissal of the Applicant. Mr. Boikanyo confirmed that Mrs. Hlatshwayo was

not even interviewed by his company during the investigation process. Why Ms. Hlatshwayo was not at

least charged for misconduct baffles me as she also supported the filling of the positions in dispute. The

evidence of the Applicant was that Mr. Sithole, the Acting Chief Director – Human Resources and

Development, is still working for the Department and it was not challenged by the Respondent. In as much I

do note that he was charged by the Respondent for misconduct, why was he not dismissed or why were

charges levelled against him withdrawn? The Deputy Director-General of Finance was dismissed by the

Respondent, at this matter is still before the Council. It was submitted by the Respondent that the then

Head of Department, namely Dr. Dhlamini, resigned from the Department before the forensic investigation

was finalized. However, my above submissions on parity must not be viewed to mean that all cases

involving similar acts of alleged misconduct must be dealt with in the same way. In the matter of ABSA v

Naidu & Others (2015) 36 ILJ 602 (LAC) the Judge held that “the parity principle may not just be applied

willy-nilly without any measure of caution. In this regard, I am inclined to agree with Professor Grogan when

he remarks as follows; the parity principle should be applied with caution. It may well be that employees

who thoroughly deserved to be dismissed profit from the fact that other employees happened not to have

been dismissed for a similar offence in the past or because another employee involved in the same

PSHS192-16/17 Page 20

misconduct was not dismissed through some oversight by a disciplinary officer, or because different

disciplinary officers had different views on the appropriate penalty”.

58. The Applicant submitted in its Closing Arguments that the Respondent had failed to show during the

arbitration that its trust relationship with the Applicant had broken down and made reference to the matter of

Edcon v Pillemer NO & Others (2010) 1 BLLR SCA . The Applicant submitted in her Closing Arguments

that Mr. Boikanyo and Advocate Strydom “are in indeed not the immediate Supervisors or the Employers of

the Applicant. By law they are disqualified to pronounce themselves on the issue about the Trust

Relationship”. According to a recent online article on polity.org.za by Xander Wehnecke for Johanette

Rheeder reference was made to the matter of Lubbe v Raap NO & Others (unreported case, JR 20-1-2-

12) where Legrange J considered the SCA reasoning in Edcon and stated as follows; “it is now clear that it

will normally not be sufficient for an employer simply to make submissions that there has been a breakdown

in the relationship, unless a clear basis has been laid in evidence to justify such a conclusion. It is also

evident that such a conclusion will not be easily drawn simply because of the nature of the issue in the

case”. The witness must therefore be able to explain in detail how the employee’s conduct impacted on the

employment relationship and why the employee cannot be granted a further opportunity to change his or

her behaviour. Normally this function will fall on the shoulder of the Line Manager or Supervisor.

59. Xander Whanecke (supra) further states that, it will be prudent for the employer to ensure the

following;

- There must be sufficient facts to show the seriousness of the misconduct,

- The witness must be ready to testify on the breach of the trust relationship. The chairperson cannot

assume this evidence from his own experience or assumptions,

- The witness must testify about the trust relationship, why it is broken and the effect of the misconduct on

the employer. and

- The evidence must be linked to the employee, the specific misconduct and the specific effect thereof on

the trust relationship.

PSHS192-16/17 Page 21

60. It is my humble view that the Supervisor of the Applicant or a Senior Manger of the Respondent should

have availed himself or herself to amplify the arguments of the Respondent’s legal representative on the

“trust relationship”. In the event it was not for lack of evidence on the breaking of the relationship between

the Applicant and the Respondent and the rationale as to why the other two Senior Managers were not

dealt with by the Respondent, I might have came to a different pronouncement in so far as substantive

fairness is concerned I therefore find that the dismissal of the Applicant was substantively unfair only on

these two issues. I would have considered retrospective reinstatement of the Applicant in the event there

was indication from her during the arbitration proceedings that it cannot be business as usual when

“irregular expenditure” is involved. It has been stated in recent media reports that “irregular expenditure” will

continue to be an order of the day as there is no consequences in Departments for those who either cause

or fail to avoid “irregular expenditure”. The PFMA at section 45 is clear on the responsibilities of officials as

set out above. And it is hoped that this Award will assist Departments and officials in taking the issue of

irregular expenditure and other related expenditure very seriously. The PFMA, the SMS Handbook provide

measures that are meant to make officials accountable for the “public purse”. In a recent article by the

Republic of South Africa’s current Auditor General, Mr. Kimi Makwetu, he stated on www.fin24.com that

“Mpumalanga has been struggling to improve its compliance with legislation in the past three years. . . .

Total irregular expenditure 2015/2016 came to R4bn, up by R1bn from 201314. The Health Department

and Human Settlements department contributed R1.9bn and R1.1bn respectively to the total amount”. It is

therefore I against this background that I cannot order retrospective reinstatement in this matter, as same

would be to condone irregular expenditure activities by other officials within the Respondent. I have also

taken into account that in the event the Respondent was proactive and pragmatic in respect of how it dealt

with some of the officials that were directly or directly linked to activities as similar to those of the Applicant,

I have possibly not have ordered reinstatement. I therefore find that the sanction of dismissal of the

Applicant was too harsh, but the Applicant cannot just escape the consequences of her actions unscathed.

AWARD

PSHS192-16/17 Page 22

http://www.fin24.com/

1. I find the dismissal of the Applicant, namely Dr. FT Mhlongo, by the Respondent, namely the

Mpumalanga Department of Health, to be procedurally fair but substantively unfair.

2. I order that the Applicant, namely Dr. FT Mhlongo, be reinstated by the Respondent, namely the

Mpumalanga Department of Health, by the 16 January 2017.

Dated here in CENTURION on 13 DECEMBER 2016.

PANNELIST: THANDO NDLEBE

PSHS192-16/17 Page 23

Documents

Web viewThe word “support” and “recommend” carry less weight as compared to “approve”. ... The posts of Ward Clerk ... (unreported case, JR 20-1-2-12)