Former official wins long legal battle with education department

The Constitutional Court has found the axing of senior Eastern Cape education department official Thandiwe Stokwe in 2014 “procedurally unfair”.

She was sacked almost five years after initially being charged with misconduct.

In the wake of last Thursday’s judgment, the ConCourt sent the matter back to the labour court for a decision on an appropriate remedy: to either reinstate, re-employ or pay compensation to Stokwe.

She was dismissed after she was charged with four counts of misconduct in 2010, relating to her awarding a scholar transport contract to her husband’s company in 2009.

The company, Dikela Tours and Distribution Services, which was paid close on R300,000 for four months’ work, was not registered on the department’s database.

According to court papers, even though Stokwe did declare the awarding of the contract to her spouse’s company in accordance with required procedure, she awarded the “temporary” contract without authorisation from her bosses.

Stokwe was deputy chief specialist in the special needs education section.

Court papers state that when her boss fell ill in January 2008, she temporarily stepped in as co-ordinator of the scholar transport section.

During her boss’ absence, a transport provider contracted by the department terminated its services.

“This created an emergency which meant that if the transport provider concerned was not replaced, some learners would not have transport.

“This situation would remain until a suitable replacement was found. Consequently, the applicant [Stokwe] approached her spouse and awarded a ‘temporary’ service contract to his company.”

The company rendered transport services for four months until a new service provider was appointed.

Stokwe was charged with misconduct in July 2010 and received a letter in June 2011, informing her that after a disciplinary process, she had been dismissed.

Stokwe requested reasons for her dismissal, but received no response.

She unsuccessfully appealed her dismissal and on February 14 2014, it took effect.

Stokwe referred an unfair dismissal dispute to the Education Labour Relations Council, which in August 2014 found her dismissal “substantively fair”.

She failed to have this set aside in the labour court and labour appeals court in 2016.

Stokwe approached the ConCourt for leave to appeal the labour court judgment which dismissed her application to review and set aside the award of the Education Labour Relations Council.

The basis of her approaching the ConCourt was that her dismissal was substantively and procedurally unfair, because of the delay in dealing with the matter. She argued that the department’s conduct was inconsistent with tenets of procedural fairness under the Labour Relations Act.

The ConCourt’s acting justice Xola Petse found that the delay was “an unexplained and unjustified departure from the department’s internal disciplinary procedure and was therefore unlawful and inconsistent with the LRA”.

He found the council was reasonable in finding the dismissal was substantively fair but he found it not procedurally fair because of the long delay in the disciplinary process.

He then ordered that Stokwe be allowed to take back the matter to the labour court.