PSES 441-11/12 WC
PSES 441-11/12 WC
Award Date:
23 February 2012
Case Number: PSES 441-11/12 WC
Province: Western Cape
Applicant: SADTU obo MP Heynes
Respondent: Western Cape, Department of Education
Issue: Unfair Dismissal - Misconduct
Venue: Cape Town
Award Date: 23 February 2012
Arbitrator: Retief Olivier
IN THE LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
Arbitrator: Retief Olivier
Case number: PSES 441-11/12 WC
Date of Award: 23 February 2012
SADTU obo M P Heynes Applicant
and
Western Cape Education Department Respondent
Applicant representative: B Magqaza___________________________
Union/Applicant’s address 60 Duncan Str ________________________
Parow Vallei__________________________
7500________________________________
Telephone: 021 9316735__________________________
Telefax: ____________________________________
Respondent: Western Cape Education Department______
Respondent’s representative: N Price______________________________
Private Bag X9114_____________________
Cape Town 8000______________________
Telephone: 021 - 467 2846________________________
Telefax: 021 - 425 8612________________________
DETAILS OF HEARING AND REPRESENTATION
The arbitration hearing took place at the offices of the Western Cape Education Department (WCED), Golden Acre Building, Cape Town, on 17 February 2012. Mr Magqaza, SADTU official, represented the employee, Mr Heynes. Ms Price represented the employer, WCED.
ISSUE TO BE DECIDED
The matter was referred by the applicant to the Bargaining Council as an unfair labour practice, arguing that the disciplinary actions instituted against him and the sanction of a final written warning and a R 2 000-00 was unfair as there was no evidence of misconduct. The employer stated that numerous witnesses testified to the applicants alleged misconduct. I must determine whether the employer committed an unfair labour practice.
BACKGROUND TO THE ISSUE
The applicant had been employed as an educator with the WCED, teaching at The Hague Primary School in Delft. During April 2010 there was a protest at the Hague Primary School, and learners were stopped from attending school on the 12th April 2010. It was alleged the applicant was involved in the action and brought the School and WCED into disrepute. He was charged and found guilty and given a sanction short of dismissal. The charges were:
Charge 1 - that the applicant prejudiced the School and the WCED in that he handed out pamphlets related to the closing of the School to learners, and which resulted in the majority of the learners not attending school on 12 April 2010, thereby bringing the name of the School and the WCED in disrepute.
Charge 2 – that the applicant displayed disrespect toward the principal, Mr Zeeman by uttering words to the effect of “ jy klim uit jou kar uit, jy sê mos die is jou skool, wys my jy maak die hekke oop”.
Alternative charge 2 – that the applicant conducted himself in an improper, disgraceful, or unacceptable manner by uttering words to the effect of “ jy klim uit jou kar uit, jy sê mos die is jou skool, wys my jy maak die hekke oop” to the principla Mr Zeeman.
The applicant was found guilty, although the charges were not specified, and given a final written warning and a fine of R 2000-00.
SURVEY OF EVIDENCE AND ARGUMENT
The parties led evidence and agreed to provide written closing arguments by the end of business on the 17th February 2012. By the end of business however neither party had submitted their arguments. On the Sunday 19 February I received written arguments from Mr Heyens, and not from his representative, which I did however peruse. A Bundle of documents was also submitted as evidence. In spite of a pre-arbitration agreement that the parties would share and exchange documents a week before the arbitration, the applicant presented an internal WCED email, even though he could not vouch for it, that had not been shared with he parties. Although I have considered all the evidence I am only referring to those aspects relevant to determine the dispute, and particularly related to charges 1 and 7, as I am required in terms of sec 138(7) of the LRA to provide an award with brief reasons.
Employee’s version:
Mr Heynes, the applicant testified about the events on 12 April 2012. He stated that he was on the way to school when he saw the commotion at the school gate. He asked the parents what was happening and they stated the gates were locked, the parents were demonstrating against the principal Mr Zeeman. Someone phoned the Parow office of the WCED and Mr Appies and Mr Maclons arrived, as well as the local councilor, Mr Trout, who addressed the gallery. Mr Trout told them they did not trust the WCED as they were in cahoots with the principal. They had lodged complaints against the principal about corruption with Mr Maclons, the IMG manager, but nothing had happened. That is why they had decided to lock the gates.
Mr Maclons had given a report to Mr John Pretorius, the acting director North, and Mr Pretorius sent an email to Linda Rose reporting on the incident. This was the email he had handed in as evidence. According to this report Mr Trout, the Councilor was in the middle of it all, and his name is not mentioned in the email. Two to three months later only did the WCED charge him, and at the hearing the chairperson would not allow this email as evidence. He had also lodged complaints against Messrs Boezak and Botha about victimization.
He stated that the employer brought a number of witnesses to the hearing, but there was no evidence placing him at the scene. The principal Mr Zeeman was far away, and has a hearing problem and could not hear what was being said and Mr Zeeman acknowledged at the hearing he could not hear what was being said.
During cross questioning it was put to Mr Heynes that a number of witnesses testified against him at the hearing and some will come and testify at the arbitration, and he stated that he would deny stating the words towards the principal. He would also deny that he played any role in distributing the pamphlets. He would deny that he had any role in instigating the matter, all he did was getting the learners out of the way for their own safety.
Regarding the email from Mr Pretorius he stated that Mr Trout had given it to him, he could not explain how Mr Trout could get hold of an internal WCED email communication. He himself could however not vouch for the email. He acknowledged that he had previously met with Mr Trout, stating that it was to discus a soup kitchen.
Mr Heynes in his closing argued that there was no evidence that linked him to the distribution of the pamphlets, and he also raised issues that were not put to the arbitration hearing, even referring to evidence of a person, a Ms Bekker, who had not testified at the arbitration hearing. There was no reference to the second charge in his arguments.
Employer’s version:
The first witness Ms Soraya Ismael stated that she was the cleaner at the school and she was aware of the incident. When she came to school the gates were locked, so they stood outside. The week-end before the school opened Mr Heynes was at the neighbour’s house, and her neighbour showed her the pamphlet he had given her. The pamphlet stated that the school must be closed. She had seen Mr Heynes speaking to her.
During cross-questioning she stated that Mr Heynes had given it to the daughter, and she was standing next to her mother when Mr Heynes was speaking to her. She acknowledged that she had not seen him handing over the pamphlets. She stated the day before the 12th April she had seen Mr Heynes in the school when she arrived, he had given a document to the lady to copy, but she could not see what is was that was being copied. On the 12th April she saw him there with the parents, but she could not hear what was being said.
Mr Arhur Patterson stated that before the 12th April Mr Heynes had come to him as he was doing access control and asked where Mr Maclons vehicle was; he then went to the vehicle and put a paper under the wipers on the windscreen. He did not however see what was stated on the papers.
During cross-questioning he stated that he could not say exactly when the incident occurred and acknowledged that he had not seen what was written on the paper. Regarding the 12th April he stated that he has been present and had seen the applicant, he was “opstandig”, and he heard him say to the principal words to the effect of “klim uit jou kar uit, jy sê mos die is jou skool, wys my jy maak die hekke oop”. He also stated that the children who had been handing out the pamphlets deliberately did not come to his house as they knew he was with the school.
Mr Jerome Africa, deputy principal, stated that on the 12th April he found the gates to be locked and parents protesting. It was a sad situation seeing children that were coming to school being denied the opportunity. He had parked behind the principal, and heard Mr Heynes say to the principal Mr Zeeman: “jy, klim uit jou kar uit, jy sê mos die is jou skool, wys my jy maak die hekke oop”. The principal had not heard it as he had a hearing problem, but he had asked what was said. He stated that he knew nothing about the pamphlets.
Mr Reggie Pretorius, a post level 1 teacher stated that on the 12th April he came to school to find the gates locked and Mr Heynes was standing with the parents at the gate. He got into his car and then heard Mr Heynes come from the gate to the principal and heard him say to the principal words to the effect of: “jy, klim uit jou kar uit, jy sê mos die is jou skool, wys my jy maak die hekke oop”. He had come to the school to teach that day, but Mr Heynes attitude was not of someone who wanted to teach.
He reiterated during cross questioning that Mr Heynes’ demeanor was not someone who wanted to teach that day, he identified with the demonstrating parents as he was walking around. He made no attempt to persuade the parents to allow them to enter.
ANALYSIS OF EVIDENCE AND ARGUMENT
In an alleged unfair labour practice dispute the onus is on the employee to prove that the employer committed an unfair labour practice. John Grogan states the following as hallmarks of unfair conduct:
Where one person or group of people is favoured over another on the basis of irrelevant criteria.
Where people are treated arbitrarily – i.e. not in accordance with established rules.
Where people are treated irrationally - i.e. on the basis of unproven or untested views and suppositions
Where people are penalized or denied an advantage without being able to state their case.
Considering the evidence submitted I find that there was sufficient evidence to investigate Mr Heynes’ conduct in relation to the incident on the 12th April 2010 and the events leading to that, and to institute disciplinary proceedings, and he was given an opportunity to state his case. All the witnesses called by the employer testified to his involvement in one or the other nature, and even should the argument from Mr Heynes be accepted that their evidence does not prove his involvement in the distribution of the pamphlets, as related to the fist charge, there was sufficient evidence to warrant a disciplinary enquiry, and he was clearly given an opportunity to state his case. It was no arbitrary or irrational action by the employer to institute disciplinary procedures.
Regarding the charges and the finding that he was guilty of the charges, he argued that the email from Mr Pretorius to Linda Rose, an internal email that he could not explain how it ended up with the Counselor Mr Trout, and which he could not personally vouch for, does not name him and therefore there is no evidence to link him to the events. Even though it is suspect how the email ended up with Mr Trout and Mr Heynes, it is clearly not an email that had as it’s purpose to investigate Mr Heynes’ actions, and does therefore not exonerate him. It primarily indicates concern that the Councilor Mr Trout was in the middle of the protest, and significantly also indicates that further communication with Mr Trout be followed up at ministerial level.
Evidence was presented and corroborated by the witnesses that he acted disrespectfully toward Mr Zeeman, the principal, and his contention that there was no evidence against him is clearly not true, and I find that there was nothing irrational in finding him guilty of being disrespectful to the Principal Mr Zeeman, and in the context of the events of that day the sanction that was issued is justifiable. Even if he was only guilty of the second charge, I find the sanction fair, and the actions of the employer in this respect fair.
Regarding the distribution of the pamphlets I accept that Mr Patterson’s evidence on its own is not conclusive in linking him with the pamphlets, as Mr Patterson did not see what was written on the pamphlet. However Ms Ismael stated that her neighbour told her that he was involved in the distribution of the pamphlets about the school closure, and she had seen him with her neighbour and her daughter, who was given
the pamphlets. Mr Reggie Pretorius also testified that he had identified with the demonstrating parents who were stopping the learners from entering the school on the 12th April. Although Mr Heynes denied these allegations, he did not call any witnesses’ to corroborate his evidence and arguments. I find on a balance of probability the version of the employer that he was indeed involved in the distribution of the pamphlets, which led to the disruption of the school, more probable.
I find that Mr Heynes has not proven that the employer committed an unfair labour practice.
AWARD
The employer did not commit an unfair labour practice in the exercise of disciplinary action against the employee Mr Heynes.
The application is dismissed.
Panelist: Retief Olivier
PSES 441-11/12 WC
23 February 2012.
Province: Western Cape
Applicant: SADTU obo MP Heynes
Respondent: Western Cape, Department of Education
Issue: Unfair Dismissal - Misconduct
Venue: Cape Town
Award Date: 23 February 2012
Arbitrator: Retief Olivier
IN THE LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
Arbitrator: Retief Olivier
Case number: PSES 441-11/12 WC
Date of Award: 23 February 2012
SADTU obo M P Heynes Applicant
and
Western Cape Education Department Respondent
Applicant representative: B Magqaza___________________________
Union/Applicant’s address 60 Duncan Str ________________________
Parow Vallei__________________________
7500________________________________
Telephone: 021 9316735__________________________
Telefax: ____________________________________
Respondent: Western Cape Education Department______
Respondent’s representative: N Price______________________________
Private Bag X9114_____________________
Cape Town 8000______________________
Telephone: 021 - 467 2846________________________
Telefax: 021 - 425 8612________________________
DETAILS OF HEARING AND REPRESENTATION
The arbitration hearing took place at the offices of the Western Cape Education Department (WCED), Golden Acre Building, Cape Town, on 17 February 2012. Mr Magqaza, SADTU official, represented the employee, Mr Heynes. Ms Price represented the employer, WCED.
ISSUE TO BE DECIDED
The matter was referred by the applicant to the Bargaining Council as an unfair labour practice, arguing that the disciplinary actions instituted against him and the sanction of a final written warning and a R 2 000-00 was unfair as there was no evidence of misconduct. The employer stated that numerous witnesses testified to the applicants alleged misconduct. I must determine whether the employer committed an unfair labour practice.
BACKGROUND TO THE ISSUE
The applicant had been employed as an educator with the WCED, teaching at The Hague Primary School in Delft. During April 2010 there was a protest at the Hague Primary School, and learners were stopped from attending school on the 12th April 2010. It was alleged the applicant was involved in the action and brought the School and WCED into disrepute. He was charged and found guilty and given a sanction short of dismissal. The charges were:
Charge 1 - that the applicant prejudiced the School and the WCED in that he handed out pamphlets related to the closing of the School to learners, and which resulted in the majority of the learners not attending school on 12 April 2010, thereby bringing the name of the School and the WCED in disrepute.
Charge 2 – that the applicant displayed disrespect toward the principal, Mr Zeeman by uttering words to the effect of “ jy klim uit jou kar uit, jy sê mos die is jou skool, wys my jy maak die hekke oop”.
Alternative charge 2 – that the applicant conducted himself in an improper, disgraceful, or unacceptable manner by uttering words to the effect of “ jy klim uit jou kar uit, jy sê mos die is jou skool, wys my jy maak die hekke oop” to the principla Mr Zeeman.
The applicant was found guilty, although the charges were not specified, and given a final written warning and a fine of R 2000-00.
SURVEY OF EVIDENCE AND ARGUMENT
The parties led evidence and agreed to provide written closing arguments by the end of business on the 17th February 2012. By the end of business however neither party had submitted their arguments. On the Sunday 19 February I received written arguments from Mr Heyens, and not from his representative, which I did however peruse. A Bundle of documents was also submitted as evidence. In spite of a pre-arbitration agreement that the parties would share and exchange documents a week before the arbitration, the applicant presented an internal WCED email, even though he could not vouch for it, that had not been shared with he parties. Although I have considered all the evidence I am only referring to those aspects relevant to determine the dispute, and particularly related to charges 1 and 7, as I am required in terms of sec 138(7) of the LRA to provide an award with brief reasons.
Employee’s version:
Mr Heynes, the applicant testified about the events on 12 April 2012. He stated that he was on the way to school when he saw the commotion at the school gate. He asked the parents what was happening and they stated the gates were locked, the parents were demonstrating against the principal Mr Zeeman. Someone phoned the Parow office of the WCED and Mr Appies and Mr Maclons arrived, as well as the local councilor, Mr Trout, who addressed the gallery. Mr Trout told them they did not trust the WCED as they were in cahoots with the principal. They had lodged complaints against the principal about corruption with Mr Maclons, the IMG manager, but nothing had happened. That is why they had decided to lock the gates.
Mr Maclons had given a report to Mr John Pretorius, the acting director North, and Mr Pretorius sent an email to Linda Rose reporting on the incident. This was the email he had handed in as evidence. According to this report Mr Trout, the Councilor was in the middle of it all, and his name is not mentioned in the email. Two to three months later only did the WCED charge him, and at the hearing the chairperson would not allow this email as evidence. He had also lodged complaints against Messrs Boezak and Botha about victimization.
He stated that the employer brought a number of witnesses to the hearing, but there was no evidence placing him at the scene. The principal Mr Zeeman was far away, and has a hearing problem and could not hear what was being said and Mr Zeeman acknowledged at the hearing he could not hear what was being said.
During cross questioning it was put to Mr Heynes that a number of witnesses testified against him at the hearing and some will come and testify at the arbitration, and he stated that he would deny stating the words towards the principal. He would also deny that he played any role in distributing the pamphlets. He would deny that he had any role in instigating the matter, all he did was getting the learners out of the way for their own safety.
Regarding the email from Mr Pretorius he stated that Mr Trout had given it to him, he could not explain how Mr Trout could get hold of an internal WCED email communication. He himself could however not vouch for the email. He acknowledged that he had previously met with Mr Trout, stating that it was to discus a soup kitchen.
Mr Heynes in his closing argued that there was no evidence that linked him to the distribution of the pamphlets, and he also raised issues that were not put to the arbitration hearing, even referring to evidence of a person, a Ms Bekker, who had not testified at the arbitration hearing. There was no reference to the second charge in his arguments.
Employer’s version:
The first witness Ms Soraya Ismael stated that she was the cleaner at the school and she was aware of the incident. When she came to school the gates were locked, so they stood outside. The week-end before the school opened Mr Heynes was at the neighbour’s house, and her neighbour showed her the pamphlet he had given her. The pamphlet stated that the school must be closed. She had seen Mr Heynes speaking to her.
During cross-questioning she stated that Mr Heynes had given it to the daughter, and she was standing next to her mother when Mr Heynes was speaking to her. She acknowledged that she had not seen him handing over the pamphlets. She stated the day before the 12th April she had seen Mr Heynes in the school when she arrived, he had given a document to the lady to copy, but she could not see what is was that was being copied. On the 12th April she saw him there with the parents, but she could not hear what was being said.
Mr Arhur Patterson stated that before the 12th April Mr Heynes had come to him as he was doing access control and asked where Mr Maclons vehicle was; he then went to the vehicle and put a paper under the wipers on the windscreen. He did not however see what was stated on the papers.
During cross-questioning he stated that he could not say exactly when the incident occurred and acknowledged that he had not seen what was written on the paper. Regarding the 12th April he stated that he has been present and had seen the applicant, he was “opstandig”, and he heard him say to the principal words to the effect of “klim uit jou kar uit, jy sê mos die is jou skool, wys my jy maak die hekke oop”. He also stated that the children who had been handing out the pamphlets deliberately did not come to his house as they knew he was with the school.
Mr Jerome Africa, deputy principal, stated that on the 12th April he found the gates to be locked and parents protesting. It was a sad situation seeing children that were coming to school being denied the opportunity. He had parked behind the principal, and heard Mr Heynes say to the principal Mr Zeeman: “jy, klim uit jou kar uit, jy sê mos die is jou skool, wys my jy maak die hekke oop”. The principal had not heard it as he had a hearing problem, but he had asked what was said. He stated that he knew nothing about the pamphlets.
Mr Reggie Pretorius, a post level 1 teacher stated that on the 12th April he came to school to find the gates locked and Mr Heynes was standing with the parents at the gate. He got into his car and then heard Mr Heynes come from the gate to the principal and heard him say to the principal words to the effect of: “jy, klim uit jou kar uit, jy sê mos die is jou skool, wys my jy maak die hekke oop”. He had come to the school to teach that day, but Mr Heynes attitude was not of someone who wanted to teach.
He reiterated during cross questioning that Mr Heynes’ demeanor was not someone who wanted to teach that day, he identified with the demonstrating parents as he was walking around. He made no attempt to persuade the parents to allow them to enter.
ANALYSIS OF EVIDENCE AND ARGUMENT
In an alleged unfair labour practice dispute the onus is on the employee to prove that the employer committed an unfair labour practice. John Grogan states the following as hallmarks of unfair conduct:
Where one person or group of people is favoured over another on the basis of irrelevant criteria.
Where people are treated arbitrarily – i.e. not in accordance with established rules.
Where people are treated irrationally - i.e. on the basis of unproven or untested views and suppositions
Where people are penalized or denied an advantage without being able to state their case.
Considering the evidence submitted I find that there was sufficient evidence to investigate Mr Heynes’ conduct in relation to the incident on the 12th April 2010 and the events leading to that, and to institute disciplinary proceedings, and he was given an opportunity to state his case. All the witnesses called by the employer testified to his involvement in one or the other nature, and even should the argument from Mr Heynes be accepted that their evidence does not prove his involvement in the distribution of the pamphlets, as related to the fist charge, there was sufficient evidence to warrant a disciplinary enquiry, and he was clearly given an opportunity to state his case. It was no arbitrary or irrational action by the employer to institute disciplinary procedures.
Regarding the charges and the finding that he was guilty of the charges, he argued that the email from Mr Pretorius to Linda Rose, an internal email that he could not explain how it ended up with the Counselor Mr Trout, and which he could not personally vouch for, does not name him and therefore there is no evidence to link him to the events. Even though it is suspect how the email ended up with Mr Trout and Mr Heynes, it is clearly not an email that had as it’s purpose to investigate Mr Heynes’ actions, and does therefore not exonerate him. It primarily indicates concern that the Councilor Mr Trout was in the middle of the protest, and significantly also indicates that further communication with Mr Trout be followed up at ministerial level.
Evidence was presented and corroborated by the witnesses that he acted disrespectfully toward Mr Zeeman, the principal, and his contention that there was no evidence against him is clearly not true, and I find that there was nothing irrational in finding him guilty of being disrespectful to the Principal Mr Zeeman, and in the context of the events of that day the sanction that was issued is justifiable. Even if he was only guilty of the second charge, I find the sanction fair, and the actions of the employer in this respect fair.
Regarding the distribution of the pamphlets I accept that Mr Patterson’s evidence on its own is not conclusive in linking him with the pamphlets, as Mr Patterson did not see what was written on the pamphlet. However Ms Ismael stated that her neighbour told her that he was involved in the distribution of the pamphlets about the school closure, and she had seen him with her neighbour and her daughter, who was given
the pamphlets. Mr Reggie Pretorius also testified that he had identified with the demonstrating parents who were stopping the learners from entering the school on the 12th April. Although Mr Heynes denied these allegations, he did not call any witnesses’ to corroborate his evidence and arguments. I find on a balance of probability the version of the employer that he was indeed involved in the distribution of the pamphlets, which led to the disruption of the school, more probable.
I find that Mr Heynes has not proven that the employer committed an unfair labour practice.
AWARD
The employer did not commit an unfair labour practice in the exercise of disciplinary action against the employee Mr Heynes.
The application is dismissed.
Panelist: Retief Olivier
PSES 441-11/12 WC
23 February 2012.