Case Number: PSES 373-10/11 WC
Province: Western Cape
Applicant: SADTU obo William Vannett McDillon
Respondent: Department of Education, Western Cape
Issue: Unfair Dismissal - Misconduct
Venue: Cape Town
Award Date: 10 October 2011
Arbitrator: Hilary Mofsowitz
EDUCATION LABOUR RELATIONS COUNCIL
In the matter between
SADTU obo WILLIAM VANNETT McDILLON APPLICANT
DEPARTMENT OF EDUCATION WESTERN CAPE RESPONDENT
Case Reference PSES 373-10/11WC
DETAILS OF HEARING AND REPRESENTATION
This is the award in the matter between SADTU obo William Vannett McDillon (“Applicant”) and the Department of Education Western Cape (“the Department”).
The matter was set down for arbitration at the District offices in Caledon on 26 July 2011, 20 September 2011 and 21 September 2011. Final submissions were received on 29 September 2011.
Medwin Jacobs (“Jacobs”) of SADTU represented Applicant.
Deon Achilles (“Achilles”) of the WCED represented the Department.
ISSUE IN DISPUTE
The dispute was referred as an allegation of an unfair dismissal. I have to decide whether Applicant’s dismissal was unfair.
Applicant commenced employment as a Principal of the LR Schmidt Moravian Primary School in 1999. Applicant’s services were terminated on the grounds of misconduct on 17 September 2010. The charges/allegations are detailed below. The alleged incidents took place during the period February to March 2010. Applicant was suspended on full pay from 28 April 2010.
Applicant is contesting the fairness of dismissal on substantive grounds and seeks reinstatement.
CHARGE 1/ALTERNATIVE TO CHARGE 1
It is alleged that you are guilty of misconduct in terms of article 17.1 (d) and article 18.1 (r) (alternative charge) of the Employment of Educators Act (“the Act”) in that during February 2010, you seriously assaulted Mr Kroukamp, a General Worker at the School, by grabbing him around the neck and hitting your head against his head.
CHARGE 2/ALTERNATIVE TO CHARGE 2
It is alleged that you are guilty in terms of Article 18. 1 (r) and 17.1 (d) of the Act in that during March 2010, you seriously assaulted Samwill Magerman, a grade 5-learner at the School, by slapping him and by (violently) throwing him on the floor.
It is alleged that you are guilty of misconduct in terms of Article 18 (q) of the Act, in that during March 2010, told Samwill Magerman, a Grade 5-learner at the School, that he should “fuck off to the mountain to let the baboons devour him”.
It is alleged that you are guilty of misconduct in terms of Article 18 (q) of the Act, in that during March 2010 you instructed Meagen Beukes, a Grade 6-learner at the School to slap Samwill Magerman.
It is alleged that you are guilty of misconduct in terms of Article 18 (t) in that during January 2010 you displayed disrespect towards others in the work place by telling Davids, an Educator at the School “Davids you fucker, don’t fuck with me, don’t take me for a cunt”.
It is alleged that you are guilty of misconduct in terms of Article 18 (t) of the Act, in that during February 2010, you displayed disrespect towards others in the work place by telling Kroukamp, a General Worker at the School “You, where are you going? You are fucking going nowhere. If you go out here, there will be big shit, big trouble. I’m telling you “.
It is alleged that you are guilty of misconduct in terms of Article 18 (t) of the Act, in that during March 2010, you told the Chairperson of the SGB that “Davids is homosexual and an assfucker and Smith is a whore and the thing still takes communion”.
SUMMARY OF EVIDENCE AND ARGUMENT
Applicant was issued with a notification to attend disciplinary proceedings on 17 May 2010. The enquiry was held on 15 June 2010 and 5, 22, 29 July 2010.
It was the Department’s evidence that Applicant’s conduct served to breach the relationship of trust between the parties. Applicant held the position of Principal at a School within a small rural community and therefore he held a role of leadership within the community. Applicant displayed inappropriate and disrespectful conduct towards his colleagues and learners. During the disciplinary process, Applicant failed to show remorse and indicated that he would make the same choices if put in the same position again.
Willem Kroukamp (“Kroukamp”) was employed at the School as a Foreman. Kroukamp confirmed that Applicant head butted him on the evening of 13 February 2010. The School was hosting a social event known as the Jazz evening. Kroukamp sought permission to go home and on returning to the School, Applicant lead Kroukamp out of sight (around the corner) and assaulted him. Applicant had been drinking alcohol. Henry James Kiewiets (“Kiewiets”) a volunteer at the School confirmed that he witnessed this incident. Applicant was not wearing his spectacles on this occasion. Kroukamp confirmed that Applicant assaulted him as per charge 1.
Kroukamp confirmed that Applicant displayed disrespectful conduct and confirmed that Applicant used the words reflected in charge 7.
Paul Benjamin Boshoff Davids (“Davids”) is employed as an Educator at the School. Davids was responsible for the financial affairs of the Jazz evening. Davids and the School Secretary approached Applicant (during the course of this event) in order to make arrangements to pay the band. It was the evidence of Davids that Applicant was aggressive towards him and said the words reflected in charge 6. The incident took place in Applicant’s office. Davids was concerned that Applicant would attack him. Prior to this, the two parties enjoyed a good relationship. Applicant’s attack on Davids was unprovoked.
The School Secretary Devona Gordon (“Gordon”) confirmed that she witnessed the incident in Applicant’s office on the night of the Jazz evening. She confirmed that Applicant used the words reflected in charge 6.
Petrus Andries (“Andries”) is employed as the Caretaker at the School. He witnessed an incident between Applicant and Kroukamp at the Family Day during March 2010. Andries confirmed that Applicant uttered the words reflected in terms of charge 7. Andries had the impression that Applicant was under the influence of alcohol.
Ivan Klaasen (“Klaasen”) is a parent at the School and serves as the Chairperson of the SGB. During March 2010, Klaasen visited the School in order to finalize the agenda for the following SGB meeting. Klaasen raised certain concerns with Applicant in terms of complaints received. A number of parents complained that Applicant was rude to them at the Family Day. Applicant was under the influence of alcohol at both School social functions and arrived under the influence of alcohol at the Family Day. Applicant’s attitude towards colleagues was unacceptable. Klaasen confirmed that Applicant used the words reflected in charge 8. Klaasen reported the matter. Gordon was also in the office.
Gordon confirmed that she witnessed this incident. She confirmed that Applicant used the words reflected in terms of charge 8.
Applicant denied that he was guilty of the allegations in respect to most of the charges. However he did not dispute the allegations contained in the alternative to charge 2 and charge 4. Applicant conceded in certain respects that his conduct was unacceptable. He agreed that he hit the Learner (Samwill Magerman) and required an older Learner to also hit Samwill Magerman.
It was Applicant’s evidence that he was the victim of a conspiracy and that the allegations were fabricated to orchestrate his dismissal. The SGB raised certain complaints against Applicant but these complaints were never properly investigated.
A newspaper article was published on 9 May 2010 and therefore Applicant considered that he was publically tried before he was formally charged. The petition of “no confidence” in Applicant may also have influenced the disciplinary process.
The sanction of dismissal was not applied consistently. Other employees guilty of similar transgressions were not dismissed. Applicant referred to employees known as Fielies, Jansen and Adonis. These three employees were also charged for assaulting Learners.
Applicant denied any violent conduct towards Kroukamp at the Jazz Evening. Applicant had reason to reprimand Kroukamp as Kroukamp was negligent in his duties. Applicant cautioned Kroukamp about his non performance and neglect of duties. Applicant walked with Kroukamp (out of sight) with an arm around Kroukamp’s shoulder. He could not have head butted him as he permanently wears spectacles. Applicant conceded that he had one or two alcoholic drinks at the Jazz evening.
Applicant denied the words reflected in charge 7. Applicant queried the fact that Kroukamp was leaving the premises when there was work to be done. Applicant could not recall the exact words that he used or that he may not even have spoken to Kroukamp at all that day.
Applicant denied the allegations reflected in terms of charge 6. He conceded that he reprimanded Davids as Davids was under the influence of alcohol and had not fulfilled his responsibilities, but not to the extent as per the testimony of Davids. Applicant could not recall the exact words that he used, but had reason to reprimand Davids. Gordon was not present
Applicant denied the words reflected in charge 8 but expressed concern that his conduct was under scrutiny while other staff members displayed unacceptable behavior. Applicant mentioned to Klaasen that the SGB should be concerned that Davids is a “homosexual” and Greg Smith (“Smith”) is an “adulterer” as he has a “live-in” relationship with a woman with whom he is not married.
Terence Ess (“Ess”) was an Educator at the School from 2000 to 2003. Applicant was Principal at the time. Ess accompanied Applicant, Kroukamp and a few others on a School errand. On this ocassion Kroukamp denied any of the allegations as per the charge sheet and indicated that it was “made up” at School. Ess attended the Family Day in March 2011 but did not witness any unpleasant incidents. Ess denied that Applicant was drinking alcohol at the Family Day.
Henriette Magerman (“Magerman”) confirmed that she is the biological mother of Samwill Magerman, who is the Learner as per charges 2, 3 and 4. Although she disputed the consent form that she signed (consent to have the child participate in disciplinary proceedings) she conceded that what Applicant did to her child was wrong and Applicant apologized for it. She did sign a consent form, but not the one contained in the Department’s documentation.
ANALYSIS OF EVIDENCE AND ARGUMENT
Applicant was dismissed on several allegations of misconduct relating to inappropriate conduct towards colleagues and assaulting a Learner. Applicant denied most of the allegations but did not dispute the alternative to charge 2 as well as charge 4. Applicant was found guilty on the alternative to charge 1, charge 3, charge 6, charge 7 and charge 8.
Applicant did not dispute that he assaulted Samwill Magerman, a Grade 5 Learner by slapping him and throwing him on the floor. He did not dispute that this was in contravention of Article 18.1 (r) of the Act. This provision provides for “assault, or attempts to or threatens to assault, another employee or another person”. Applicant also did not dispute that he instructed Megan Beukes a Grade 6 Learner to slap Samwill Magerman. This was in contravention of Article 18 (q) of the Act that provides for “conducting him/herself in an improper, disgraceful or unacceptable manner”. Applicant conceded that he “transgressed the law”.
Applicant is an educated person and was represented by a well established trade union. In view of Applicant’s concessions, I have accepted that Applicant was guilty of these allegations. The Learner’s mother (Applicant’s own witness) confirmed that Applicant apologized to her for his conduct and she conceded that Applicant’s conduct (in this respect) was wrong.
On an assessment of all the evidence, there was overwhelming evidence to support the conclusion that Applicant was guilty of the other allegations. The probabilities balance the Department’s version. The Department’s witnesses have titled the evidence in the Department’s favour.
I have accepted the evidence of Kroukamp, Davids, Gordon and Klaasen. Despite Applicant’s denial, the probabilities support the conclusion that Applicant did grab Kroukamp around the neck and head butted him (alternative to charge 1). This is in contravention of Article 18.1 (r) of the Act. I have accepted the Department’s evidence that Applicant was not wearing his spectacles on the night of the Jazz evening. The probabilities favour the conclusion that Applicant displayed disrespect towards Davids and used the words contained in charge 6. He was unnecessarily rude and disrespectful to a colleague. I have not found that Applicant was provoked in order to justify his conduct.
The probabilities favour the conclusion that Applicant showed disrespect towards Kroukamp in contravention of Article 18 (t) and that he used the words contained in charge 7. Applicant displayed disrespectful and insolent behavior. I am also persuaded that Applicant used the words contained in charge 8 and that also can be regarded as disrespectful and insolent behavior and in contravention of Article 18 (t). Applicant did not dispute Kroukamp’s denial of the incident when Kroukamp testified and therefore I have not placed much weight to the evidence of Ess that Kroukamp indicated that the Department contrived Kroukamp’s evidence.
Applicant’s evidence with respect to these charges was vague and unsubstantiated. At times Applicant could not recall exactly what he said. His testimony that Davids or Kroukamp did not exercise their duties properly did not condone Applicant’s conduct.
In summary, I have found Applicant guilty of charges 1 (in the alternative), charge 2 (in the alternative), charge 4, charge 6, charge 7 and charge 8. I have discounted charges 3 and 5 as no evidence was led in respect to these two charges.
Although the Department got some of the dates confused in their drafting of the charges, this does not tilt the balance in Applicant’s favour. The witnesses were clear when these various incidents took place and Applicant was aware at all material times exactly what allegations were leveled against him. It does not mean that the incidents did not take place.
Applicant’s evidence of a conspiracy theory was vague and unsubstantiated. There is no reason that the Department deliberately wanted him out for no good reason and after such long service. It is clear that parents and educators raised certain complaints against Applicant. This probably led to investigations and it is clear from the evidence at arbitration that these were well founded. In any event, Applicant was not dismissed on account of the complaints; he was dismissed on numerous allegations as per the charge sheet.
I have considered Applicant’s allegation of inconsistent treatment. There was insufficient evidence to draw a conclusion that the Department applied the sanction of dismissal in an inconsistent manner. There were numerous charges against Applicant, which were different to the charges against Fielies, Jansen and Adonis. The documentation supplied by Applicant shows that the charges against these other employees were different to the basket of allegations against Applicant (the allegations against Applicant involved inappropriate conduct towards colleagues as well as inappropriate conduct towards the Learners). In any event, consistency is only one element of disciplinary fairness. Some inconsistency is the price to be paid for flexibility. Employees who are guilty of serious misconduct cannot escape dismissal where the employer exercises its discretion. Even if dismissal was not appropriate on this allegation (assault on a Learner), I have found dismissal to be appropriate on the other allegations.
I therefore find that the Department has discharged the onus to show substantive fairness.
Considering the totality of circumstances, I find the sanction of dismissal to be appropriate. Although Applicant has long service and an unblemished record, the charges are serious enough to warrant dismissal even at a first offence. I have considered that there are a number of allegations and the allegations all relate to improper and unacceptable conduct. This is especially so when one considers the leadership position that Applicant held. Applicant was a Principal and the School is situated in a relatively small rural community and Applicant held an important position within the community. The School was funded through the Church. I am persuaded that Applicant’s conduct has served to destroy the relationship of trust between the parties. Even if Applicant did good work within the community and some parents were happy with him, this does not mitigate against the seriousness of the allegations. Applicant’s conduct was in breach of the provisions of the Department’s Disciplinary Code.
I am persuaded that the Department has complied with all procedural aspects of pre dismissal requirements as required in terms of Schedule 8 of the LRA. Although Applicant received negative publicity in the newspaper prior to disciplinary proceedings, this does not necessarily render the process unfair. In fact the Presiding Officer showed leniency in that one of the charges was dropped and Applicant was found not guilty on one of the charges.
The Department has discharged the onus to show procedural fairness.
I find in favour of the Department.
Applicant’s dismissal was procedurally and substantively fair.
for the ELRC
PSES 373-10/11 WC
10 October 2011