Case Number: PSES239-12/13 KZN
Applicant: E Ryland
Respondent: Department of Education, KwaZulu-Natal
Issue: Unfair Dismissal - Misconduct
Award Date: 29 November 2012
IN THE EDUCATION LABOUR RELATIONS BARGAINING COUNCIL
HELD AT DURBAN
CASE NUMBER: PSES239-12/13KZN
DATE : 29TH November 2012
In the matter between:
E RYLAND Applicant
DEPARTMENT OF EDUCATION-KZN Respondent
Applicant/Employee Party: represented by S Roopnarain
Respondents/Employer Party: represented by A Preethpaul
Fax: 031- 3374261
 Details of hearing and representation
[1.1] The Arbitration was finalised at Durban Teachers Centre on 31st October 2012. The parties agreed to submit written arguments.
[1.2] The Applicant was represented by Lushen Pillay Attorneys whilst the Respondent was represented by the KZN department of education. There was consent to legal representation.
 Issues to be decided
[2.1] Whether the Applicant’s dismissal was substantively fair. Procedural fairness was common cause.
 Background to the issue and survey of evidence and argument
[3.1] The Respondent employed the Applicant on January 2005 as an educator. He was dismissed for reasons related to misconduct on 22nd August 2012. The charges appeared from page 3 at bundle B. The parties agreed bundles A and B. The parties agreed that the Applicant will file its outstanding medical report with the ELRC and the Respondent by no later than the 14th November 2012. Thereafter the Respondent will file its closing argument by the 21st November 2012. The Applicant’s reply will follow on the 28th November 2012.
[3.2] The Applicant solely challenged the sanction of dismissal as being inappropriate. He sought reinstatement and the Respondent sought the application be dismissed.
 Applicant’s case and argument.
The Applicant testified.
[4.1] he stated that the sanction was harsh. He was bipolar and asthmatic, diabetic with hypertension. He took his medication regularly and was on medication on the day of the incident. It was the provocation, since he was laughed at in his face and he was not brought up like those girls.
[4.2] He pleaded guilty to the charge. He initially referred the girls to the principal who in turn referred them to him and this gave the girls the right to be that way to him. He was not brought up like them. They provoked and disrespected him by laughing at him in his face. Assault of the learner was too harsh a term to use.
[4.3] he is not going to be cured for his illnesses. There are disrespectful girls at the school but he will never do it again.
[4.4]he was referred to page 27 of the bundle B. He agreed he pleaded guilty to the charge.
[4.5] no argument was presented.
 Respondent’s case and argument
[5.1] No argument was presented by the Respondent.
 Analysis of evidence and argument
[6.1] The Applicant’s only challenge to the dismissal was the sanction imposed. The onus rests upon the Respondent to show on a balance of probabilities, that the imposition of dismissal was fair in these circumstances. Despite the onus, the Applicant must still present a probable version before me.
Based on the evidence before me, I find the Applicant’s dismissal substantively fair for the following reasons:
[6.1.1] I do not intend repeating the evidence herein but it is clear that the Applicant excuses his conduct for various reasons and his entire evidence is coated with this. He admitted guilt and this was already common cause. He went as far as to testify that the term assault of the learner was too harsh to use. He persisted that the learner provoked him by laughing at him. He further did not challenge that he had admitted to the assault of the learner, in that he had fisted her. The latter I find, speaks directly to the sanction imposed by the Respondent.
[6.1.2] it is clear to my mind that this Applicant presents clear and present danger to the learners. Whether for illness of mind or other illnesses it is unclear, since on his own version he seemingly tries to excuse his conduct by constantly referring to upbringing or provocation. I cannot accept that this sanction was inappropriate or too harsh in these particular circumstances. On his own evidence he proves to be clearly untrustworthy. I am mindful that he also was on a final written warning for the same offence and the Respondent did adhere to principles of progressive discipline.
[6.3] I accordingly find for the Respondent in this matter.
[7.1]The application is dismissed.