Case Number: PSES 559-11/12 KZN
Applicant: PSA obo Ngobese-Mvelase PF
Respondent: Department of Education, KwaZulu-Natal
Issue: Unfair Dismissal - Misconduct
Venue: Durban TEACHER’S CENTRE
Award Date: 23 May 2011
Arbitrator: Mlungisi Sabela
AT THE EDUCATION LABOUR RELATIONS COUNCIL
Commissioner: MLUNGISI SABELA
Case No.: PSES559-11/12KZN
Date of Ruling: 23/05/2012
In the MATTER between:
PSA obo NGOBESE-MVELASE, PF (Union / Applicant)
DEPARTMENT OF EDUCATION-KWA ZULU NATAL (Respondent)
DETAILS OF HEARING AND REPRESENTATION:
This matter was set down for an Arbitration hearing on 28 February 2012 and 24 March 2012 at the Respondent’s offices at Durban Teacher’s Centre,College Road Durban between PSA obo Ngobese-Mvelase, PF the Applicant and Department of Education-Kwa Zulu Natal, the Respondent.
The Applicant was represented by Mr S Hlongwane a union official from PSA.
The Respondent was represented by Mr I Pillay a senior personnel practioner.
Before the hearing commenced the parties handed in two bundles of documents which I marked as exhibits A and B.
ISSUE TO BE DECIDED:
Whether the employee’s dismissal was both substantively and procedurally fair or not.
BACKGROUND TO THE ISSUE:
Ms Phumelele Faith Ngobese-Mvelase (Mvelase) was employed by the Respondent on 1 January 1996 as an educator and was earning R16664, 00 a month
She was dismissed on 13 December 2011 following a disciplinary enquiry where she was accused of the following:
-count 1 that on 8 March 2011 she conducted herself in an improper, disgraceful and unacceptable manner in that she caused the assault of Mr N Cele an educator at Manyuswa Senior Primary School thus committing an act of misconduct in terms of section 18 (1) (q) of the Act (Employment of Educators Act 76 of 1998)
-Alternatively that on 8 March 2011 she committed a common law or statutory offence in that she caused /incited the assault of Mr N Cele an educator at Manyuswa Senior Primary School thus committing an act of misconduct in terms of section 18 (1) (dd) of the Act (Employment of Educators Act 76 of 1998)
SURVEY OF EVIDENCE TO ARGUMENT:
Nkanyezi Hills Cele testified that in the beginning of 2011 he was employed at Manyuswa Senior Primary School in Umlazi as an HOD. On 7 March 2011 they as school management and the school governing body were supposed to meet and develop a criteria for short listing service providers to feed learners at school. They had made arrangements the previous week as to who would be there in the meeting.
There were four teachers to sit in the committee. When he approached them the previous week only one of them was interested to be in the committee. On Friday he reported to the principal that three members were not interested.
On 7 March 2011 there was a misunderstanding between him (Cele), the principal and other committee members who were not interested the previous week but who were then interested.
In the principal’s office it was him (Cele), the principal, other three committee members namely Miss Ncwane, Mrs Mvelase and Miss Msomi. The principal explained how the interested member of the committee was taken out of the process. That is when Mvelase verbally abused him saying he (Cele) wants things to happen his own way pointing a finger at his face and shouting at him loudly.
He asked the principal to protect him from Mvelase’s abuse but he (Principal) smiled and said that was what he (principal) was telling him (Cele) that he was undermining his authority. He (Cele) wanted to move out of the office but the principal closed the door and Mvelase continued shouting at him. He eventually went out and Mvelase followed him along the corridors saying so many things like that they would not be ruled by him (Cele). Miss Ncwane came to him (Cele) and told him to move away from Mvelase. He decided to move of out of the school as he could not go to the class room because he was so angry.
He (Cele) together with Mrs Kubheka and Miss Msomi reported the incident to the ward manager who promised to come to school with two officials from nutrition section. On 8 March 2011 he went to school as normal. He went to the class room for the first period and at 09:15 the principal told him to go down to the class room that was prepared for the meeting. In that class room it was the deputy principal, the principal, ward manager and two officials of the Respondent. Later Mrs Kubheka and Miss Msomi came in. Mvelase was supposed to be there as she was part of the committee.
Mvelase entered followed by four men and came straight to him (Cele) whilst he was seated as the meeting was about to start and said this is the person who was rude to her. One of those four men said to him (Cele) they had to move out of the class room. He asked them who they were and one of them said that was not important. Another asked him (Cele) why he was talking shit. He (Cele) could see that that man was in his twenties and asked him if he could see how old he (Cele) was. He tried to stand up but one of the four men hit him so hard with his left hand. Whilst that was happening he could hear Mvelase shouting that it was her turn to fix him (Cele).
One of those men drew out a gun, cocked it and pointed it at him (Cele). Whilst still shocked the one who had hit him, hit him again on his right cheek. Mvelase said do not shoot him but beat him up. There was a lot of commotion and noise and Mvelase was shouting. Most people were shocked but he saw the principal smiling. Mvelase went to Mrs Msomi and told her to be quiet as it was not about her. Those men boasted saying he is behaving like a karate man and he must stop teasing their friend’s wife and left. Mvelase then said the meeting could continue.
When it was put to him that Mvelase would say he did not know those four people except that Mrs Radebe handed them to her to show them as they were looking for him (Cele), he said it is very strange how she could tell strangers not to kill him (Cele) but beat him up.
When the visitor comes at school he would see the secretary first but that did not happen. At least Mvelase should have told the principal that there were people who wanted him.
Petrus Mkhanyiseni Mdabe testified that he is employed by the Respondent as the ward manager/superintendent of schools under Phumelela Circuit Umlazi District. Manyuswa Primary Schoolfalls under his ward. On 7 March 2011 three educators Mr NH Cele, Mrs Kubheka and Miss Nokuthula Msomi came to his office to inform him they had a problem with the appointment of a nutrition supplier. There was a committee of four educators who did not see eye to eye as who to be employed as the supplier. They told him there was a quarrel between Cele and Mvelase. He (Mdabe) then called Mxolisi Zimu who is responsible for nutrition at district who promised to meet him the following day at school. They made appointment to meet at 08:00 to 09:00 on 8 March 2011.
When he arrived at school two officials from nutrition Mxolisi Zimu and Zamo Mtaka were at the principal’s office. He (Mdabe) told the principal that they were there to resolve the issue of nutrition and asked him to call four members of the nutrition committee. The principal asked them to move to a class room down the slope next to a gate. In the class room there was a deputy principal Mr P Msomi writing something. They asked him (Msomi) to remain as they were going to request SMT (School Management Team) to be part of the meeting.
In the class room it was him (Mdabe), deputy principal, principal, NH Cele and Mxolisi Zimu. Mrs Kubheka and Miss Nokuthula Msomi joined them and they were waiting for other nutrition committee members. Miss Msomi was there as an educator representative in school governing body.
He (Mdabe) was holding a phone when Mvelase entered the class room followed by four unknown men and went straight to Mr Cele and said “this is Mr Cele who was teasing me yesterday”. One of the men asked Mr Cele to step outside of room. Cele said he could not and asked who they were. One of them said it was not important and Cele said he could not talk to him like that and he was not of his age. The other man said Cele was talking shit and hit him on the face with an open hand. Those men said Cele was used to hitting women. One of them drew a gun, cocked it and pointed it to Cele’s forehead. In the class room they were all afraid and Mrs Kubheka and Miss Msomi were screaming. Mvelase said “do not shoot him just beat him”.
The deputy principal stood between the one who had a gun and Mr Cele and said “just hold on boys”. They later moved out of the room. Whilst Nokuthula was crying Mvelase went to her and said “don’t cry this is not about you.”
He (Mdabe) then declared the meeting closed. Mvelase then pulled the chair and said the meeting could go on.
Musawenkosi Eric Mabaso testified that he is a deputy manager at employee relations directorate and was the presiding officer in the disciplinary enquiry of Mvelase. It was the first time that he listened to evidence in the matter. He did not predetermine the sanction. He applied his mind to the sanction and mitigating factors. He did not know about the matter before the disciplinary enquiry. He did not discuss the matter with any one before the disciplinary enquiry. He did not say at the disciplinary enquiry that he was aware of the incident and that no decision would be altered.
Phumelele Faith Mvelase testified about the argument with Mr Cele such that Cele pointed at her forehead and said if she talked like that to her husband he (Cele) was not her husband and he would kick her ass. She just looked at him puzzled. Miss Ncwane and the principal reprimanded him and said he could not talk like that at school. She asked Cele how come he spoke about her husband who was not a teacher, not there and not included in the matter being discussed. Cele pushed her and the principal jumped over from his chair and held Cele.
Mr Cele was shouting saying she (Mvelase) was a nonsensical girl who needed to be fixed. Cele tried to kick her and the principal pushed Cele out of the office. She then told Cele that she was going to report to the police and Cele said he did not care. Cele said she could go to the police and her stupid husband can do nothing to him. Some teachers from the staff room Mr Mkhize and Mrs Ngcece came and tried to calm Cele down as she was crying. She called her husband.
On 8 March 2011 she came to class and taught. At about 08:55 she left to the clerk’s office and gave the clerk some work to do. Mr Cele went by arriving at school. She checked the time table and noticed that she was supposed to go to grade 7C class room. She went to the office that she shared with Miss Ncwane to fetch something and Miss Ncwane told her that the ward inspector is coming to complete the previous day’s meeting. Miss Ncwane said she would not go to a meeting and she (Mvelase) said she would not go either.
When she came out of the office the principal said he was looking for her all over and said Mr Mdabe was there and they were needed at the meeting.
Later she was coming from the toilet together with the clerk when she met Mrs Radebe in the veranda and she (Mrs Hadebe) was followed by four boys asking for Mr Cele’s where abouts. She told Hadebe that she thought Cele was in a meeting and Hadebe asked her to take the boys to Cele as she was also going to the meeting.
The boys followed her and she got in the class room first and Mr Mdabe’s back was towards the door. She turned and told the boys there was Mr Cele and told them to wait and she went to the principal. Two of the boys greeted and she was talking to the principal saying Mrs Hadebe said she should take those boys to Mr Cele. One of the boys asked Cele if he could talk to him (Cele) out side. Mr Cele frowning asked them who they were and said he did not talk to boys.
One of the boys said to Cele he just wanted to talk to him out side. Cele said he did not want to talk to him and told him to live him alone. The boy clapped Cele and Cele stood up in the fighting position. Mr Msomi the deputy principal stood up and told the boys to go out side as the meeting was about to start. Every body stood up except Mdabe who was busy on the cell phone.
She (Mvelase) was surprised as to what was happening. Mr Msomi told the boys to respect him as he is old and told them to go out side. One boy took out a gun and nobody reprimanded him as they were all puzzled as to what was happening. The boy put back the gun and went out.
Miss Msomi started crying so loud and she (Mvelase) went and comforted her. She just saw every one leaving and asked what about the meeting. The principal informed her that Mdabe with held the meeting. She was the last one to leave the class room with Mr Msomi.
Mrs Kubheka and Miss Msomi screamed at the veranda and rang the school bell. They commanded Mr Mdabe to address the children that the principal tried to kill Mr Cele and pointed a gun at him. Children were told to tell their parents. Later there were cars of teachers from other schools. She had nothing to do with the assault.
She does not recall if at her disciplinary enquiry she said her husband came to school on 7 March 2011 with three men. Though she had a disagreement with Cele a day before such that Cele pushed her and she cried, she does not dwell on yesterday that is her motto.
She agrees that the procedure is that visitors must report at the office. Those men were boys and could not be parents of any school children. She acted on the instruction of Mrs Radebe to take the boys to Mr Cele.
She did not tell the boys not to shoot Mr Cele but to beat him up. She also did not say to Nokuthula that the incident had nothing to do with her. She can not say why Mdabe lied.
Thembalihle Dorrin Hadebe testified that on 8 March 2011 she was at school coming from a class room where she was writing a test when she was approached by four men who were still boys. They wanted the principal and she showed them the office. When she was in the staff room they approached her and said there was no one in the office. They said infact they wanted Mr Cele. Since she had seen Mr Cele coming late at about 09:05 she walked with them trying to find Mr Cele in four classes he was supposed to be in. They did not find him and she went back. On her way back she saw Mvelase coming from the staff room and asked her where Cele was. Mvelase said Cele was in the meeting of which she did not know about as she was not at school the previous day.
She told Mvelase that those men wanted Cele and asked her to go with them and show them where Cele was. She then went back to her class room and she did not know those men and did not know why they wanted Cele. Those men were very humble wearing happy faces. Seemingly Mvelase did not know them. If it was not for her (Hadebe) Mvelase would not be in this mass.
The procedure is usually that visitors go to the principal first. The school clerk was not there in the office and even the deputy principal was not there. She did not think of asking them to wait and send for Mr Cele. Some times visitors go straight to the classes and the principal used to warn them as teachers about that being dangerous.
ANALYSIS OF EVIDENCE AND ARGUMENT:
It does not make any sense that both Hadebe and Mvelase knew that Mr Cele was in a meeting conducted by the ward inspector and instead of telling the men to either wait until the meeting is finished or come back later; they take the boys to Mr Cele. More over the principal had told them it was dangerous for visitors to go straight to the class rooms. Their evidence on this aspect is clearly false and a clear fabrication.
On the other hand we have Mvelase who had agreed with Miss Ncwane that they would not attend the meeting, but after Mr Cele has been assaulted, pointed at with a gun she is worried about the meeting when every one is leaving the venue. The incident is so huge such that it attracted teachers from other school but Mvelase was not so shocked like every one and was worried about the meeting that she did not want to attend.
I believe the evidence of the Respondent’s witnesses that Mvelase came with those boys and pointed Mr Cele as the person who was teasing her or rude to her the previous day. I also believe that she told them not to shoot Mr Cele but to only beat him up. She could only say those things to them because she knew them and they were there on her instructions.
I therefore find that Phumelele Faith Mvelase committed the misconduct she was accused of on count 1.
The Applicant is also challenging the procedural aspect of dismissal in that the chair person conducted himself improperly such that it (Applicant) thought that the matter was already decided. How ever there is no evidence supporting the Applicant’s allegations.
In terms of Item 2 of the Code of Good Practice read with section 188 of the Labour Relations Act 66 of 1995 dismissal is unfair if not effected for a fair reason and in accordance with a fair procedure.
In terms of section of 192 (b) of the Labour Relations Act 66 of 1995, the employer must prove that the dismissal is fair.
In terms of item 2 (4) of the Code of Good Practice it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct , subject to the rule that each case should be judged on its merits, are gross dishonesty or willful damage to the property of the employer, willful endangering the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination. Mvelase‘s conduct is one of those offences listed above.
In terms of item 7 of the Code of Good Practice any person who is determining whether a dismissal for misconduct is unfair should consider-
(a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the work place; and
(b) if a rule or standard was contravened, whether or not-
(i) the rule was valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonable be expected to have been aware, of the rule or standard
(iii) the rule or standard has been consistently applied by the employer; and
(iv) dismissal was an appropriate sanction for the contravention of the rule or standard.
There is a rule prohibiting assault of a fellow employee. Even if there was no such rule it is common knowledge that at the work place and else where one should not unlawfully assault another person. Here Mvelase organised the assault of a fellow employee at the work premises.
This is a very serious offence such that it destroys the work relationship between the employer and an employee. I therefore find the dismissal of Phumelele Faith Mvelase to be both substantively and procedurally fair.
The application is dismissed.
DATED at DURBAN on this the 23rd day of May 2011.