Case Number: PSES 328- 05/06FS
Province: Free State
Applicant: MADIEHE M. K.
Respondent: DEPARTMENT OF EDUCATION – FREE STATE
Issue: Unfair Dismissal - Misconduct
Award Date: 17 November 2005
Arbitrator: Jeffrey Mani
Commissioner: Jeffrey Mani
Case No.: PSES 328- 05/06FS
Date of Award: 17 – 11- 2005
In the arbitration between:
MADIEHE M. K. Union / Applicant
DEPARTMENT OF EDUCATION – FREE STATE Respondent
Union / Applicant’s representative: Mr. M. Khang
Union /Applicant’s Address :Mapitse & Khang Attorneys
P. O. Box 1662
Tel. No. : 051 – 430 2987
Fax. No. : 051 – 430 2990
Respondent’s representative : Mr. D. P. L.. Geldenhuys
Respondent’s address : Free State Department of Education
106 Selbourne Avenue
Telephone number: 051 – 404 4293
Fax number: 051 – 404 4388
1. DETAILS OF THE HEARING AND REPRESENTATION:
The arbitration hearing was held at the Free State Department of Education
106 Selbourne Avenue Katlegong Building Bloemfontein at 10h.00
The employee, Mr. M.K Madiehe (hereinafter referred to as the Applicant) was represented by Mr. M. Khang, an attorney from Mapitse & Khang Attorneys.
The employer, Free State: Department of Education,(hereinafter referred to as the Respondent) was represented by Mr. D. P. L. Geldenhuys, the Assistant Director in the Labour Relations Section.
2 . BACKGROUND TO THE ISSUE
The Applicant worked for the Respondent as a level 1 teacher based at the Lekhulong Secondary School in Bloemfontein as of the 20 January 1977. The Applicant earned
R7 900 – 00 per month.
3. ISSUE TO BE DECIDED:
I have to determine as to whether the dismissal of the Applicant is unfair or not, if so what appropriate remedy to apply.
4. SURVEY OF EVIDENCE AND ARGUMENT:
4.1. RESPONDENT’S CASE:
• The Respondent submitted that it would prove that the Applicant committed the alleged transgressions.
• The Respondent further submitted that the Applicant confirmed the plea of guilty on the alternative charges 1 & 3 and plea of guilty on the main charge on count 2.
• The sanction of dismissal is appropriate even in S18 of the Employment of Educators Act, 76 of 1998 misconducts.
• The Respondent submitted a bundle of document as annexure “A”.
1st. Witness: Stephanus Abraham Marais, testified as follows:
He is the deputy director in the Risk Management Sub-Directorate in the Respondent. He is responsible for disciplinary actions since1998. He testified that he was appointed as a presiding officer in the Applicant’s disciplinary hearing. The Applicant’s case is about an assault, which occurred at the school where the Applicant was working.
He testified that on the 25 October 2004 the Applicant’s representative, Mr. Msiza requested that the matter be postponed for two months for the SOMA – Interactive
Consultancy report the parties agreed to postponement until the 02 December 2004. The notice to attend the hearing was read on the 25 October 2004 and was issued on the 12 October 2004.
He testified that on the 02 December 2004 the disciplinary hearing took place and it was indicated that the SOMA report was not yet received. He testified that the Applicant pleaded not guilty on the main charges in count 1 and 3, but pleaded guilty on the alternatives and on count 2. He testified that the Applicant confirmed the plea and say“ I do”. He testified that during the mitigation the Applicant submitted pages 14 – 18 of Annexure “A” and submitted that he could not remember whether it did happen or not. He testified that the Respondent recommended a sanction of final written warning and a suspension without remuneration.
He testified that the Respondent has a duty to protect the learner. The Applicant indicated that he does not know whether did the incident occur or not, he could not be convinced as to whether would it not happen again. He testified that the Respondent does not challenge the medical report as pages 14 – 18 of annexure “A”. He testified that this type of misconduct destroys the trust relationship and the Applicant could not give an undertaking that this would not happen in future. The reports from the psychologist experts do not indicate whether would such incident happen in future or not.
Under cross – examination Mr. Marais testified that no evidence was led in the disciplinary hearing. He testified that it was not the case that the Applicant pleaded guilty and later said he could not remember. It was put to the witness that if a person pleads guilty and thereafter say he cannot remember he was supposed to have entered the plea of not guilty. He confirmed that pages 14 –18 of annexure “A” deals with the mental illness but not mental capacity. However, the witness confirmed that mental illness affects mental capacity generally. He confirmed that if the Applicant said he could not remember it could be that his mental capacity was affected. He testified that he agrees that the Applicant said he could not remember. The witness testified that the SOMA report was not important for the disciplinary proceedings because the Applicant had stopped drinking his medication. The witness did not respond when it was put to him that the Respondent withheld the report on the 02 December 2004.
The witness confirmed that the Applicant started to be ill for about ten years ago and he never committed any offence, while in the Respondent’s employment. He further confirmed that when the Applicant showed hostility to doctors and nurses he was under treatment. He confirmed that when the Applicant became ill becomes hostile. He testified that the Applicant never said to him that he had stopped drinking his medication. The witness testified that the Applicant said he could not take medication due to financial constraint and personal problems. The witness testified that he does not know where are the transcripts of the disciplinary hearing. He further agreed that the Applicant’s case differs from a case of a normal person. The witness confirmed that the Applicant pleaded guilty because he could not remember.
2nd. Witness: Morongoe Neria Mokhalinyane, testified as follows:
She is in the employment of the Respondent as a principal of Lekhulong High School, the Applicant reported to her.
On the 18 March 2004, two learners Mosala Refilwe and Nomsa Mahosi came to her office and reported that the Applicant had slashed them and they had injuries in their
She called the applicant to her office and asked him about that, and he answered, “yes” that he slashed them. She asked him that is he aware that it is not within the law he answered “yes”, she then advised him not to do it again, and he accepted that. She did not report the matter on the 25 March 2004. She testified that she and Mrs. Zwane the Deputy Principal, went on the middle block checking as to whether are there teachers in classes.
When they proceeded to the Grade 12 classes they saw a boy running and they asked the boy as to what is wrong, he said the Applicant chased him with “Molamu“ a stick.
They went to the classroom the student told them that the Applicant suddenly grew up aggression and they are scared of him.
The witness testified that the Applicant at times would come to the office talking loudly and told them that he was at the brother’s place and wanted to demonstrate what happened there to the clerk and grabbed the clerk. According to her the Applicant did not appear normal when he was doing all those funny things. One learner Raletele Ntjana came bitterly crying and she asked him why is he crying he said the Applicant had beaten him. The leaner told her that he went to report other students to the Applicant that the other learner are making noise and he said he must go and fetch them when he went there he followed him and beat him with a stick bumped his head on the wall and beat him on his buttocks and thereafter he chased him out of the classroom. She reported the matter for the second time to the district and referred them to the previous letter. The learner suffered ½ centimeter open wound. I told the learner that I reported the matter to the district and we wrote the letter to the parents but the parents went to the police. Nomsa Mahosi could not be found and Refilwe Mosala said her mother said that the Applicant has asked for forgiveness, so she did not want to testified.
Under cross-examination the witness testified that she gave the Applicant a verbal warning in previous incidents but she reported the matter. She testified that she did not mention in the letter that she warned the Applicant and she has no response as to why. The witness did not respond when it was put to her that it was unfair to give the Applicant warning and charge him again for the same offence. The witness indicated that she has no comment when it was put to her that the Applicant denies the allegation as per charge 3. The witness testified that she reported to the Respondent that the Applicant is not normal long before these incidents took place, as the Applicant’s illness was continuous. The witness testified that the reason as to why he reported the matter to the Respondent because she wanted it to assist with the assessment of the Applicant, but they did not receive any response from the Respondent. She testified that someone called from Mr. Mapitse’s office, the leave section asking her to write a report, which indicates that the Applicant is fit for work, but she asked that person to put that in writing but he/she vanished. The witness testified that if the Respondent could have responded immediately it could have prevented this situation. She further testified that what stresses the Applicant is because there are many changes in the Respondent.
3rd Witness: Raletele Ntjana, testified as followed:
He is 16 years old doing Grade 9,he knows the Applicant, Mr. Madiehe. The relationship between himself and the Applicant, Mr. Madieheis is that, he knows the Applicant as a good and honest teacher. He knows him from Lekhulong Secondary School. The Applicant was his teacher from Grade 9 and he taught him English last year. There was an incident which took place between him and the Applicant, but he could not remember the date it was when the Applicant came in with the script and asked them to mark them. Some other leaner played with his answer sheet, he then took it and reported it to the Applicant and he said let them go to the classroom so that he can show him who was those learners.
In the class he told to him to bend on the table and he hit him and he asked what have he done and he hit him harder on the head, he then ran away he said he must not get in the classroom while he is teaching. He went to the principal to report what had happened. The principal gave him the letter to report the matter to the police and he went and reported the matter to Police
Station and they gave him the case number. The following day the detective asked him as to whether does he still wish to proceed with the matter he said no, but he said they would go and warn the Applicant.
The witness testified that the stick is about 60centimeter long and 5centimeter in diameter. The Applicant hit him once across the buttocks and on the top of his head. The Applicant used both hands to threaten him. He bumped his back of the head on the wall .He sustained injuries because he was swollen up at the back of the head he had a small wound on top of the head and had a swollen mark. He swallowed with difficulty when he ate.
He testified that before the incident he had a very good relationship with the Applicant, after the incident he was no longer attending when the Applicant taught, because he said he must not attend. The principal did not do anything about that she said this is more difficult for her she would report it to the Respondent.
Under cross- examination the witness testified that he agrees that the Applicant’s physical built is very strong than your built.
4. 2. APPLICANT’S CASE:
The Applicant submitted that the dismissal is both procedurally and substantively unfair.
The Applicant submitted that the dismissal was procedurally unfair in that the previous representative pleaded guilty on behalf of the Applicant but no confirmation was obtained from the applicant. The chairperson found the Applicant guilty on the main charges while the plea of guilty was entered on the alternative charges, which according to the policy are dismissible. The chairperson should have indicated that if he was not happy with the plea and let the Respondent called witnesses on the main charges.
The Applicant submitted that the dismissal is substantively unfair in the following reasons:
• The Applicant denies the allegation against himself.
• The disciplinary hearing proceeded under section 18 of the Employment Educators Act. Section 18 offences are not dismissible offences.
• The sanction imposed was harsh considering the clean record of the Applicant and the long service he had with the Respondent. The Applicant submitted bundle of documents as annexure “B”.
1st. witness : Mosuwe Karabo Madiehe, testified as follows:
He received the notice of the disciplinary hearing as per the charges.
He denied the allegations as per the said charges.
On receipt of the notice he immediately wrote a letter in response as per page 12 of Annexure “A”, letter – read. This was his immediate response on the allegation and that was the first time
he heard about the said allegations in only 2004. This was not a notice of disciplinary but the notice to respond on the allegation. The notice to attend the hearing was received on the
12 October 2004 as per page 3 of Annexure “A , after the submission of his response he was never visited by anyone. The matter was postponed due to the fact that they waited for the SOMA report about his mental status. On the 02 December 2004 before the disciplinary
Hearing started, the union representative came to him and told him that they had spoken to the Respondent’s representative that he should plead guilty to some of the charges in order to have a lesser sanction be imposed. He said to them why because he had already written a letter, which states very much clear that, he denies the allegations. The Applicant’s representative, Mr. Msiza said to him that, that is what they agreed on, so he could not do anything and he did not plead guilty in the hearing. The reason as to why he said that is because they took an advantage of his health condition because he was away from work for two months due to maniac depression (mental capacity). The principal knows his problem. He does not know whether the Respondent is aware of that, but they never approached him about his health condition.
The Applicant testified that after the guilty plea the mitigating factor, were asked from his representative as per page 6 of Annexure “A”. The Applicant testified that he did not recognized learners when he punished them but one he saw, he realized that he is one of his learners.
When he was halfway of his period he entered the classroom he reprimanded him as he had already reprimanded other learners when the Applicant came closer he ran out.
It is not true that he assaulted him. The Applicant testified that he is surprised this is a
not carry a stick at school. The response letter was forwarded to the Respondent, so
the chairperson of the disciplinary hearing was aware of his defense statement as the letterform part of annexure “A”. The Applicant testified that he stands by the content of the letter.
Under cross-examination the Applicant testified that he instructed his representative in the disciplinary hearing that he did not commit any offence and gave him the response letter. He testified that he was never asked to plead but his representative was asked. He testified that he mitigated due to the fact he was asked to do so. The Applicant testified that the reason why he could not call witnesses who were in the classroom is because he was barred to be in the school premises. He testified that prior the incident he was on and off at school, but his health condition is fine now. The Applicant testified that the SOMA report was prepared after the incident. The Respondent put to the Applicant that he was barred for only three months but he responded that he does not know.
5. SURVEY OF EVIDENCE AND ARGUMENTS:
Section 192 (1) – (2) promise that the onus to prove the existence of the dismissal is on the applicant and the onus to prove the fairness of the dismissal is on the Respondent.
The applicant challenged both the procedurally and substantive fairness of the dismissal.
I think it would be proper for me to deal with the two aspects separately as follows.
The applicant’s challenged the procedural fairness on the following points.
• The applicant’s Representative entered a plea of guilty but no confirmation was obtained from the applicant.
• The chairperson found the application guilty on the main count while the applicant pleaded guilty on the alternative. I would first deal with the first point the Applicant was Represented by Mr. Mziza, SADTU official.
It is common cause that a plea of guilty was entered on behalf of the applicant. It is also not in dispute that the plea was as a result of a plea bargain between the Representative.
It is a trite law that if a Representative acts on behalf of his client, but not to the interest of the clients and the clients does not draw that to the attention of the presiding officer he would be bound by what his Representative had said. In many cases the court relied on what the Representative said without obtaining confirmation from the accused person. The conduct of Mr. Marais even if that was the case it was not so gross to render the dismissal procedurally unfair.
Secondly the main charges against the applicant are in terms of section 17 of the Employment of Educators Act, which indicated that is for serious offences. The
Respondent submitted that the applicant pleaded guilty on the alternative charges 1 and 3 and pleaded guilty to charge 2, all those who the applicant pleaded guilty on are falling under S18 of the Employment Educators Act, which are less serious than S17.
However, despite the fact that the applicant submitted that the applicant was found guilty on the main on the main charges instead of alternative charge, the applicant failed to tender evidence to that effect. I am not convinced that the dismissal of the applicant is procedurally unfair in the circumstances.
Substantive Unfairness :
The applicant was charged of 3 charges in the disciplinary hearing. The Respondent relied on the said charges to prove the substantive fairness of its case. The Respondent further strongly relied on the guilty plea entered on behalf of the applicant.
However, the Respondent withdraw charge 2 due to the fact that one of the Respondent’s witness, Mrs. Mokhalinyane testified that the notice of the disciplinary hearing refers to Thabang Matshaba as the leaner who was assaulted and chased by the applicant, while it is not the case. Tshepo Matshaba was in actual fact that the leaner who was assaulted but the applicant was not charged for that.
So I have to deal with the two, namely charge 1 and 3. I will firstly deal with charge 1 as follows:
The Respondent pointed out that in respect of charge 1 the witness was present on the previous sitting but was uncomfortable, so he would not call any witnesses but he declined to formally withdraw the said charge as per the applicant, he indicated that to withdraw that is not his mandate. The Respondent on his closing argument shift the blame to me, that as a Commissioner failed to call the said witness in respect of charged 1. It is an unfortunate event for the Respondent I know how to exercise my powers as Commissioner. I do not think it is the duty of the Commissioner to assist parties in bringing their own witnesses to the arbitration proceedings. I do not think it is my duty to lecture the Respondent as how to subpoena a witness to the arbitration proceedings.
The alleged offence took place in a classroom with many learners, I failed to understand as to why did the Respondent not call the other learners to testify about what transpired in respect of charge 1.
I am of the view that the Respondent failed to prove the substantive fairness in respect of charge 1.
In Respect of charge 3:
The Respondent called two witnesses, Mrs. Mokhalinyane the principal, and Mr. Ntjana.
Mrs. Mokhalinyane testified that on the 25 March 2004 she and Mrs. Zwane, the deputy principal were in the middle block checking whether are there teachers in the classroom. When they proceeded to the grade 12 classroom they saw a boy running they asked him what is wrong, the boy said the Applicant chased him with a stick, called ``molamu`` They went to the classroom and the student told them the Applicant had suddenly grown up aggression and they are scared of him.
Mrs. Mokhalinyane further testified that the Applicant is not normal in that at time he
would come to the office talking loudly and told them, that he was at his brothel place and grabbed the clerk wanting to demonstrate what was happening there.
Mrs. Mokhalinyane testified further in respect of the incident of Mr. Ntjana, that he came bitterly crying and said the Applicant had beaten him. Mr. Ntjana told him the reason is because he went to report other students that are making noise. The Applicant followed him and beat him with a stick on his head and bumped him on the wall. He beat him on his buttocks, and chased him out from the classroom. She testified that she reported the matter for the second time and referred to the previous letter. She testified that the learner suffered ½ centimeter open wound. He then told the leaner that she reported the matter to the District and they wrote a letter to the parents.
The evidence of Mr. Ntjana, the learner corroborated the evidence of Mrs. Mokhalinyane. However, the second contradiction, such as that Mrs. Mokhalinyane testified that she saw the wound is a ½ centimeter long. The leaner, Mr. Ntjana testified that the stick was about 60centimetre long and 5centimetre in diameter (think). The leaner, Mr. Ntjana confirmed that the applicant’s built is very strong than his. Mr. Ntjana demonstrated that the applicant hit him vary with the stick he had described.
However, I do not think the leaner, Mr. Ntjana was hit with a stick of about 5centimetre in diameter, he might be correct in length. I considered that if the applicant hit Mr. Ntjanawith such a stick as he demonstrated initially he could have fallen. However, the leaner, Mr. Ntjana changed the demonstration to show that the Applicant gave him light lashes as per the Respondent’s closing submissions.
However, I am convinced that the leaner, Mr. Ntjana was beaten by the applicant, but not the way he had described. I accept that the applicant gave Mr. Ntjana light lashes as the Respondent’s closing submission, that would then fell under S 17 of the Employment of Educators Act, offences.
The second question to be answered is whether did the applicant appreciate to what he was doing. It is very much clear that the applicant was not normal, at the time of incident.
Considering the evidence of Mrs. Mokhalinyane, the principal, that the learners in his classroom indicated that the applicant had suddenly grown up aggression they are scared of him. Mrs. Mokhalinyane testified that she wrote letters to the Respondent reporting the health condition of the applicant but the Respondent did not respond, because she wanted that the Applicant be placed under the assessment. She testified that probably if the Respondent could have acted it could have prevented their situation. The psychologist’s expert reports were submitted as page 14 – 18 of annexure “A”. In addition to the psychologist expert report the
SOMA – interactive report was also submitted in the arbitration, of which all the reports point to the same direction that the applicant is not normal, his mental capacity is affected.
I am not convinced that the dismissal of the applicant is substantively fair in the circumstances. The only way the Respondent could have to deal with the applicant is
to offer the applicant early retirement due ill – health. To dismiss the Applicant based
on misconduct was not appropriate.
6.1 The dismissal is procedurally fair and substantively unfair.
6.2 The Respondent is ordered to reinstate the Applicant on same terms and conditions of employment with retrospective effect.
6.3 The Applicant must report for work on the 19 December 2005.
6.4 The Respondent is further ordered to pay an arrear salary amounting to R39 500 – 00.
(Thirty - Nine Thousand Five Hundred Rand) to the Applicant from the date of dismissal until the 21 December 2005. Calculated as follows:
(a) R 7 900 – 00) x 5 = R39 500 – 00
6.5 The arrear salary in paragraph 6.4 must be payable on or before the 15 December 2005.
6.6 I made no order as to cost.
E.L.R.C – PANELIST: