Case Number: PSES 676 – 13/14
Province: North West
Applicant: Van Heerden HJ
Respondent: Department of Education, North West
Issue: Unfair Dismissal - Misconduct
Award Date: 9 June 2014
Arbitrator: Sibongiseni Sithole
PSES 676 – 13/14
Date of Award:
9 JUNE 2014
In the ARBITRATION between
VAN HEERDEN H J
DEPARTMENT OF EDUCATION – NORTH WEST
Mr G Kirster
P O BOX 7106
018 468 3500
018 462 2382
Mr. P M Meje
DR KENNETH KAUNDA
PRIVATE BAG X 2044
018 388 2562
018 384 5016
DETAILS OF HEARING AND REPRESENTATION
This matter was heard in the offices of the Department of Education in North West, Potchefstroom on 22 May 2014. The applicant, Mr. H J v Heerden attended the hearing and Mr. G. Kirster, an attorney represented him. Mr. P. M. Meje represented the respondent.
The applicant led his own testimony whilst the respondent made oral and written submission in support of its case. The proceedings were electronically recorded.
The parties were directed to submit written closing argument on/or before 2 June 2014. The parties duly submitted the closing arguments.
BACKGROUND TO THE DISPUTE
The parties entered into a signed pre-arbitration minute on 22 May 2014. The following are factors that were recorded as common cause. The applicant was re-appointed on 4 April 2005 as PL 1 educator stationed at Klerksdorp Primary School.
On 4 Nov 2011, he was charged with misconduct in terms of s18 (1)(5)(F) of the Employment of Educators Act, 76 of 1998 (EEA) and S10 of the South African Schools Act (SASA) (Act 84 of 1996) as contemplated in subsection (1)(dd) of the EEA for assaulting two learners, Taz Mzengwe and Neo moloke, on 17 February 2011 and 4 August 2011 respectively.
The applicant pleaded not guilty and at the conclusion of the internal disciplinary process, the presiding officer found him guilty. After the aggravating and extenuating circumstances, the presiding officer pronounced the sanction of dismissal.
The applicant lodged an appeal with the executing authority (Member of the executive Council) and the dismissal was confirmed on 22 Jan 2014.
The applicant was also found guilty by the South African Council for Educators (SACE) on these offences and fined R10 000.00 payable within 10 months after ratification of the sanction by council and that his name be struck off the roll off educators, which striking off was suspended for a period of 10 years on condition that the does not repeat the same or similar offence during the said period.
The parties agreed that the following factors are in dispute:
The severity of the assault;
That the offence was the result of provocative behavior on the part of the learner.
That disciplinary action was only taken because of pressure from outside the school.
That he received written warnings for the same offence that he has been dismissed for and was sentenced as set out in 8 above (SASA).
That the chances of a repeat of the offence are remote.
That the respondent acted inconsistent in the dismissal of the applicant.
The sanction was too harsh.
ISSUE TO BE DECIDED
Whether the applicant is guilty of misconduct in terms of s18(1)(5)(f) of the EEA and whether the applicant contravened s10 of the SASA as contemplated in s18 subsection (1)(dd) of the EEA.
Whether the principle of double jeopardy applies.
Whether the dismissal is justifiable considering that relevant factors and circumstances.
Whether the employment relationship has been broken or not based on the view of the school that the relationship had not broken down.
The applicant seeks reinstatement with a final written warning.
SURVEY OF EVIDENCE AND ARGUMENT
THE SUMMARY OF THE RESPONDENT’S CASE
The respondent’s assertion was that the applicant was employed by the Department of Education. All serious offences committed by educators are supposed to be reported to the HOD in the province and formal processes to be invoked. Principals are delegated to deal with less serious offences. In this instance, assault occurred and in terms of s10 of SASA educators are not supposed to punish learners in any manner, corporal punishment is prohibited.
The principal was not empowered to issue the educator with warnings. The principal issued a written warning and a final written warning to show that the offences were not appreciated. The warnings were not reported to the department. The parent of the learner reported the incident to the school and wanted the teacher to apologise. The applicant did not apologise. The parent stated that the applicant was instead very rude. The applicant admitted that he committed the offence. He only apologised for being rude not for the assault.
The incident came to the attention of the district after the parent had complained to the GB. The district director wrote to the applicant and asked him to respond to the allegations and the applicant did not respond.
The principal wrote to the district stating that he tried to intervene and had spoken to him on numerous occasions and requested him to keep calm. The principal was not supposed to issue the applicant with a FWW but refer the matter to the district because the assault was not a once off incident. The principal acted ultra vires because the offence was serious.
The offence was committed, he was found guilty, he mitigated, it was not 1st time offence, irrespective of how small the employer has always been dismissal given the provisions of s10 of SASA.
The respondent further argued in closing that the fact is in any situation where the assault to person by the other happens; physical injuries are not the only factors to show that the assault was serious as emotional scars as well contribute to the person been hurt.
The two learners at the time the applicant assaulted them were 10 and 11 years. The fact that their parents approached the school, as evidenced by their letters on para 22, 24-29, 31-35 “B”, leaves no doubt that the learners were hurt by the applicant. The assaults were not just a “wack” as the applicant tried to justify his actions.
Ms Mazengwe at page 31 & 34 “B” para 2 of the letter she states, “ though I was pained and indeed very incensed by the incident, I only wanted the apology in writing so that I could respond and educate the teacher on the fundamental human rights”.
Corporal punishment is prohibited and surely in doing what the applicant did to discipline the two learners was wrong. The action broke the employment relationship.
The applicant did not provide any clear evidence that disciplinary action was because of pressure from outside the school. The action taken by the respondent was not due to outside pressure. The school is not the employer of the applicant and thus they could not do as they wish given the seriousness of the offences committed.
The SACE is an independent body which has its own processes in dealing with the ethical behavior of educators, which under no circumstances have any influence to discipline processes of the respondent.
SUMMARY OF THE APPLICANT’S CASE
The applicant testified that the assault were a result of provocative and disruptive behavior of the leaners. He pushed Neo Moloke down to sit as the children had to sit in their rows, while other learners were taken to the wall. Neo was standing and joking. It was a minor incident that he could not remember it when Mrs. Moloke wanted to speak to him about.
The other incident happened in class where the children were marking their work from the overhead projector. Taz Mazengwe was not doing his work and was disruptive and disturbing. He slapped his hand on the table in front of Taz Mazengwe tapping him on the back of his head telling him to do his work. Both assaults were of minor nature and the children did not suffer any injury.
The applicant argued that Schedule 8 item 3(5) of the LRA provides that dismissal should be reserved for cases of serious misconduct or repeated offences.
The respondent issued written warnings to the applicant for the same offense that he was dismissed for. He received a final warning on 4 August 2010 regarding the incident with Neo Moloke and on 18 February 2011 regarding Taz Mazengwe.
SACE fined him R10000.00 payable within 10 months after ratification of the sanction by the council and that his name be struck off the roll of educators, which striking off was suspended for a period of 10 years on condition that he does not repeat the same or similar offence during the said period.
This is a case of double jeopardy; essential elements of double jeopardy rule is that the charges against the employee in the second hearing are the same as they were in the first. This does not mean that the employer can simply redraft the charges in a different form. The true test is whether the charges relate to the same cause of action. He cannot be subjected to a second inquiry in respect of the same offence.
The first presiding officer has imposed a penalty less severe than dismissal. The respondent may not ignore the decision of the first disciplinary hearing and substitute its own decision.
The applicant recognized that he needed help with stress and anger management and subjected himself to treatment and counseling. The respondent accepted the reports submitted.
ANALYSIS OF EVIDENCE AND ARGUMENT
The employer has onus to prove that the dismissal was procedurally and substantively fair. No evidence was led before me to show that the dismissal was procedurally unfair.
The applicant argued that s10 of SASA reads: Prohibition of corporal punishment (1) no person may administer corporal punishment at a school to a learner. (2) any person who contravenes subsection (1) is guilty of an offence and liable on conviction to a sentence which could be imposed for assault. The respondent therefore alleged that the applicant is guilty of misconduct for committing a statutory offence in contravening section 10 of SASA.
In S v Williams, Langa J characterized corporal punishment as follows: “the severity of the pain inflicted is arbitrary, depending as it does almost entirely on the person administering the whipping.” It is clear from the facts that the applicant did not administer any whipping and can therefore not be guilty of alleged contravention of section 10 of SASA. The correct charge, as in the Stander case would have been assault.
The characterization of the charge was not submitted as an issue in dispute. It is common cause that the applicant on 4 Nov 2011, he was charged with misconduct in terms of s18 (1)(5)(F) of the Employment of Educators Act, 76 of 1998 (EEA) and S10 of the South African Schools Act (SASA) (Act 84 of 1996) as contemplated in subsection (1)(dd) of the EEA for assaulting two learners, Taz Mzengwe and Neo moloke, on 17 February 2011 and 4 August 2011 respectively. Therefore assault formed part of the charge.
It is not in dispute that the applicant assaulted the learners but he challenged the severity of the assault. “Assault is the unlawful and intentional application of force to a person, or a threat that force will be applied.” Grogan J, Workplace law tenth edition pg 216. “The legal requirement for the offence is the intentional and unlawful application of physical force, however slight, to the body of the complainant, or the threat that such force will be applied.” Grogan J, Dismisssal Discrimination & Unfair Labour Practices pg 241. Assault is generally accepted as a valid ground for dismissal. The applicant’s assertion that the assault was minor and thus dismissal was unjustified cannot be accepted taking into account that the two learners were 10 & 11 at the time of the incidents. The applicant was employed as an educator and should have used alternative measures to discipline the learners other than assault.
There is no evidence presented before me to suggest that that applicant was provoked by the learners. The applicant’s own evidence shows that the learners were joking and not doing their work which one would assume is normal in the context of the applicant’s duties.
The applicant submitted that disciplinary action was only taken because of pressure from outside the school. Evidence presented shows that the parent of the learner complained about the applicant’s conduct. The district only instituted disciplinary action after the complaint. The district would not have known about the applicant’s conduct if the parent had not complained. The letter from the parent simply stated that he wanted an apology not the applicant to be disciplined. Furthermore the warnings were issued by the principal prior the complaint which shows that at all times that applicant’s conduct was subject to discipline not as a result of outside pressure.
Furthermore the principal’s letter states that he spoke to the applicant and requested him to keep calm. This is an indication that his was a habitual offender. To further show that this was a disciplinary offence the principal gave the applicant a warning for the first offence and a final written warning for the second offence to show the seriousness of the offences.
The respondent submitted that in terms of s4 schedule 2 of the Employment of Educators Act 76 of 1998 as amended, School principals have been delegated authority to deal with less serious offences committed by educators within their respect schools and he was therefore wrong to issue the applicant with warnings. The facts of this matter shows that these were serious offences, the principal’s conduct of issuing the applicant with warnings was not only outside his scope of authority but the sanction was obviously disproportionate to the seriousness of the offence. He (the principal) further saw that the incidents were serious hence he issued the applicant with a final written warning. The respondent can therefore not be blamed for the conduct of its employee (the principal) who acted ultra vires in this matter. The applicant did not dispute the issue in relation to the powers of the principal. The applicant’s argument that this is a clear case of ‘double jeopardy’ cannot stand. To further substantiate the seriousness of this matter, SACE albeit not the employer also imposed a fine and a suspended sentence to the applicant.
The applicant submitted that the chances of repeat of the offence are remote; evidence led shows that this was not the applicant’s first offence. The principal stated that on numerous occasions he talked to the applicant. The applicant only seeks professional help when he was charged after the 2nd incident as a preventative measure for possible future occurrences. This does not nullify the offences. The fact remains that the assault took place not once but on numerous occasions.
The applicant could not provide any evidence in relation to other employees who committed the same offences who were not dismissed.
S18(1)(5)(f) of EEA and S10(1)(5) of SASA provides that an educator may be dismissed if he or she is found guilty of s10 of SASA. It is clear that the applicant was not dismissed after committing the first offence but after numerous occasions he was told by the principal to calm down. He was issued a written warning on 4 August 2010 which should have been a deterrent and application of progressive discipline and the applicant did not rehabilitate but committed a similar offence on 18 February 2011. Therefore progressive discipline was applied. It is trite law that corporal punishment is a dismissible offence. Assault, corporal punishment is prohibited. I thus reject the applicant’s assertion that dismissal was too harsh.
Based on the above if find on a balance of probabilities that the applicant is guilty of misconduct in terms of s18(1)(5)(f) of EEA and that he contravened s10 of SASA as contemplated in subsection (1)(dd) of EEA. The principle of double jeopardy does apply but the respondent cannot be saddled with an obviously irrational decision of one of its employees (the principal).
Dismissal is justifiable considering all the relevant facts and circumstances. The trust relationship has broken down and thus a continued employment relationship is intolerable.
I find on a balance of probabilities that the dismissal of the applicant was procedurally and substantively fair.
The dismissal of Hendrick Jacobus van Heerden, the applicant by the Department of Education Northwest was procedurally and substantively fair.
The matter is dismissed.
I make no order of costs.
ELRC PANELIST: (SIBONGISENI SITHOLE)