Case Number: PSES673-13/14NW
Province: North West
Applicant: SAOU obo Gideon Johannes Venter
Respondent: Department of Education, North West
Issue: Unfair Dismissal - Misconduct
Award Date: 6 July 2014
Arbitrator: E Maree
Panellist : E Maree
Case Number : PSES673-13/14NW
Date of Award : 6 July 2014
In the ARBITRATION between
SAOU obo Gideon Johannes Venter
Department of Education-North West
Applicant’s representative Mr. P. Delport
Applicant’s address Fax 086 670 8304
Respondent’s representative Ms. L. Lejaka
Respondent’s address Fax  388 2590
DETAILS OF HEARING & REPRESENTATION
1. The arbitration was heard on the 19th of June 2014 at the North West Department of Education situated at no 6 Pendoring Street c/o R566, Brits.
2. The applicant was represented by an official from SAOU while the respondent was represented by Ms. L. Lejaka a labour relations officer.
3. The applicant submitted bundles ‘’A1 & A2’’ and the respondent bundle ‘’B’’.
4. The parties have agreed that the matter can be determined by way of written arguments and to this end have agreed to submit same on or before the 26th of June 2014.
ISSUES TO BE DECIDED
5. Whether the applicant’s dismissal was substantively fair but only with regard to the appropriateness of the sanction and procedurally fair only with regard to the delay in the appeal procedure.
6. If a finding is made that the dismissal was unfair, appropriate relief has to be determined.
It is not my intention for purposes of this award to reflect verbatim the arguments/submissions that was made. I will only reflect the salient points of each parties arguments/submissions in so far as it has a bearing on the issue in dispute. I have studied and considered all the arguments, legal principles, case law and legislation referred to by the parties.
SUMMARY OF RESPONDENT’S ARGUMENTS
7. The applicant was found guilty subsequent to a disciplinary hearing and demoted on the 27th of October 2011. The outcome of the appeal was given on the 21st of January 2014 and the applicant informed thereof on the 3rd of February 2014 during which time he continued rendering services as principal.
8. In terms of the provisions of Collective Agreement 1 of 2006 the applicant had the right as per section 15 thereof to ensure compliance with the appeal process. If the respondent had not complied with the appeal within 45-days of receipt thereof, he could have served the respondent with a 7 day written notice to remedy the defect. If there was still no compliance, the applicant could then lodge a dispute with the ELRC. The applicant failed to follow this process but is blaming the respondent for the delay.
9. At the hearing the applicant pleaded guilty to charge 2 and the alternative, this however, does not detract from the seriousness of the charges. The SA Schools Act no 84 of 1996 in section 10 prohibits corporal punishment of a learner. This has also been prohibited by the Employment of Educators Act and constitutes a criminal offence.
10. The applicant was aware when he lodged the appeal that the Appeals Authority has the right to amend/uphold or dismiss the appeal and as such he knew and appreciated the risk thereof.
11. The Appeals Authority then found that the sanction imposed at the disciplinary hearing was inconsistent with the charges and amended the sanction from demotion to that of dismissal.
SUMMARY APPLICANT’S ARGUMENTS
12. The applicant had been a principal at Sandrift School for 19 years without incident. He pleaded guilty at the disciplinary hearing to lesser charges of misconduct due to an incident where he had ‘’contrary to education law’’ spanked a learner who had fought with another learner.
13. The applicant then remained at Sandveld after being found guilty and demoted for almost a year without the respondent ‘’executing’’ the sanction. He was then transferred to a smaller, ‘’troubled’’ school after interference by the SGB.
14. The applicant then lodged an appeal and waited for 27 months’ for the outcome without any explanation being afforded therefor.
15. The period of the delay from the 5th of December 2011 until the 21st of January 2024 means that the respondent had ‘’waived its right to continue with any action’’. The effect of the dismissal is ‘’shocking’’ especially as the applicant was allowed to continue working for almost 2 years as principal even after he was moved to another school.
16. The applicant has been an educator for the whole of his professional life and had been a principal for 23 years with an unblemished record. He is married with three children one of whom is still dependant.
17. The respondent has waived its right to act due to the long delay and as such the sanction was ‘’simply too harsh’’ and as such the applicant must be reinstated with full or limited back pay alternatively he could be reinstated at a demoted position.
ANALYSIS OF ARGUMENTS
18. Section 192 of the Labour Relations Act 66 of 1995 states that the onus is on an applicant to establish the existence of the dismissal which in casu was common cause.
19. Thereafter, in terms of section 192, the respondent has to show that the dismissal was substantively and procedurally fair.
17. The issues in dispute were limited to an attack on the appropriateness of the sanction of dismissal [substance] as well the delay in finagling the appeal [procedure].
18. The applicant was charged with three charges of misconduct and pleaded guilty and was subsequently found guilty of two. These charges read as follows:
‘’ You are charged with misconduct in terms of section 18[dd] in that on or about 08 June 2011 you administered corporal punishment on Hendrik Gerhardus a learner at Laerskool Sandrift in contravention of section 10[1[ of the South African Schools Act number 84 of 1996’’
‘’You are charged with misconduct in terms of section 18[r] in that on or about 08 June 2011 you administered corporal punishment on Hendrik Gerhardus a learner at Laerskool Sandrift’’.
19. The applicant had been dismissed for dismissed for misconduct and as such one has to take into regard schedule 8 of the LRA that sets out the guidelines for a fair dismissal. Item 7 specifically refers to misconduct and states as follows:
“ 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 workplace; and
[b] if a rule or standard was contravened whether or not-
[i] the rule was a valid or reasonable rule or standard;
[ii] the employee was aware, or could reasonably 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. “
20. Schedule 8 of the LRA has to be read with the appropriate policies, procedures and legislation governing the relationship between the respondent and its employees which inter alia are the principles contained in schedule 2: Disciplinary Code and Procedure for Educators as promulgated in the Employment of Educators Act, 76 of 1998 [EEA].
21. In its attack on the substantive fairness of the dismissal the applicant only contended that the sanction of dismissal was not appropriate for the contravention of the rule/s. This relates to schedule 8, item 7[b][iv]. The other substantive issues as set out in items [a] and [b]i-iii] therefore are not disputed.
22. In terms of section 18[f] of the EEA dismissal is warranted if an educator is found guilty of contravening section 10 of the South African Schools Act by administering corporeal punishment on a learner.
23. In Sidumo v Rustenburg Platinum Mines Ltd & Others  28 ILJ 2405 [CC] the court stated as follows in paragraphs 78 & 79:
‘’ In approaching the dismissal dispute impartially a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration.
For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long service record. This is not an exhaustive list.
[79 ‘To sum up. In terms of the LRA a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances’’.
24. In considering and applying the principles set down by Sidumo [supra] it is clear that it is not the task of the commissioner to ask what the appropriate sanction is but whether the employer’s decision to dismiss was fair. The commissioner therefore is not tasked with determining what decision they would make had they been the employer and as such is not given the power to afresh consider what he or she would do. A commissioner must consider all relevant circumstance and determine if the employer’s decision to dismiss was fair.
25. The Constitution of the Republic of South African prohibits corporal punishment and such conduct furthermore constitutes a criminal offence. Corporal punishment is also prohibited by the South African Schools Act in section 10.
26. It was argued on behalf of the applicant that he had been employed by the respondent for all of his professional life and had been a principal for 23 years during which he had an unblemished record.
27. The applicant’s years of service however, cannot outweigh the gravity and seriousness of the misconduct. De Beers Consolidated Mines Ltd v CCMA & Others  ILJ 105 [LAC]
28. In considering this arguments and all others placed at my disposal it is my view that the sanction of dismissal was appropriate.
WAS THE DISMISSAL PROCEDURALLY FAIR?
29. Schedule 8 of the LRA sets down the following guidelines for a procedurally fair hearing.
Notice of the charge;
Reasonable time to prepare a response;
Employee entitled to state a case in response;
Employee entitled to assistance;
Informed of the decision and the reasons therefore.
30. The respondent’s regulations as set out in schedule 2 of the Disciplinary Code & Procedure for Educators promulgated in terms of the EEA embody the procedures – that conforms to the basic principles of schedule 8 – to be followed in order to affect a fair procedure.
31. These procedures inter alia stipulate that discipline must be affected in the shortest possible time. The respondent offered no explanation for the delay of 27 months.
33. It was contented on behalf of the applicant that the period the respondent took before rendering an outcome on appeal boils down to a ‘’waiver of their right to continue with any action’’.
34. The respondent offered no explanation for the delay other than stating that the applicant had the right to demand an outcome if nothing was forthcoming within 45-days of giving notice of the appeal and to demand compliance within 7 days. It was also argued that when lodging the appeal the applicant appreciated the risk thereof in that he was aware that the Appeals Authority has the right to amend/uphold or dismiss the appeal.
34. The respondent failed to promptly affect discipline and departed from its own policies, thus acting unfairly.
35. The applicant’s argument that this delay constitutes a waiver of the right to continue is also not acceptable. The applicant should have been aware that his appeal is pending and that continued employment is subject to the outcome of an appeal.
36. The applicant had been demoted on the 28th of November 2011 and submitted his appeal on the 5th of December 2011. The outcome was only given on the 21st of January 2014. During this period the applicant had been gainfully employed as principal. He also took no steps as was his right to force the respondent to comply with its own policies in rendering an outcome within stipulated time frames. Only during February 2014 when he realised his appeal was unsuccessful did he spring into action.
37. In Avril Elizabeth Home for the Mentally Handicapped v CCMA & Others  9 BALR 833 [LC] the court stated the following with regard to procedural fairness:
‘’ This conception of the right to a fair hearing prior to dismissal is reflected in the Code. When the code refers to an opportunity that must be given by the employer to the employee to state a case in response to any allegations made against that employee, which need not be a formal enquiry, it means no more than that there should be dialogue and an opportunity for reflection before any decision is taken to dismiss. In the absence of exceptional circumstances, the substantive content of this process as defined by Item 4 of the Code requires the conducting of an investigation, notification to the employee of any allegations that may flow from that investigation, and an opportunity, within reasonable time, to prepare a response to the employer’s allegations with the assistance of a trade union representative or fellow employee. The employer should then communicate the decision taken, and preferably communicate this in writing. If the decision is to dismiss the employee the employee should be given the reason for dismissal and reminded of his or her rights to refer any dispute dismissal to the CCMA, a bargaining council with jurisdiction or any procedure established in terms of a collective agreement’’.
38. The dismissal of the applicant was substantively fair but procedurally unfair regarding the aspect stated above.
38. The applicant required reinstatement which in casu is prohibited by section 193[d] of the LRA.
39. In considering compensation regard must be taken of the provisions of section 194 of the LRA that requires that compensation must be ‘’just and equitable’’.
40. In considering compensation it is my view that the applicant is not entitled to any as he had not suffered any prejudice due to the delay but in fact remained gainfully employed for a period exceeding 2 years. I have also considered the fact that he did not act in ensuring an expeditious outcome as was his right in terms of the ELRC Constitution. If he had done so and still received no outcome he could then have referred the matter to the ELRC within proper time frames. Yet, he waits for more than 2 years thus leaving one with the distinct impression that he was probably hoping that the matter ‘’would go away’’.
41. I have also considered the principles set out in Avril Elizabeth [supra] and considering the matter holistically it is my view that this procedural flaw did not prejudice the applicant.
42. The dispute is subsequently dismissed.
43. I make no order as to costs.
DATED AT PRETORIA ON THIS 6TH DAY OF JULY 2014