PSES 219-13/14
PSES 219-13/14
Award Date:
5 May 2015
Case Number: PSES 219-13/14
Province: Free State
Applicant: SADTU obo SMANGO
Respondent: Department of Education Free State
Issue: Unfair Dismissal - Misconduct
Award Date: 5 May 2015
Arbitrator: Jerome Mthembu
Commissioner: Jerome Mthembu
Case no: PSES 219-13/14
Date: 5 May 2015
In the matter between:
SADTU obo SMANGO
and
DEPARTMENT OF EDUCATION Applicant
Respondent
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION:
1. The hearing was held on 17 March 2015. Mr Lekhetho an official of SADTU represented the Applicant and Mr Maloka the Respondent.
2. The parties dispensed with oral evidence and agreed to file arguments as follows:
2.1 Respondent on 9 April 2015;
2.2 Applicant on 16 April 2015;
2.3 Respondent to reply on 24 April 2015.
3. In addition to its arguments, the Respondent tendered the record of the disciplinary hearing in support of its case.
THE ISSUE TO BE DECIDED:
4. Whether or not the dismissal of the Applicant was procedurally and substantively fair, and
5. Whether the Respondent waived the dismissal of the Applicant by paying him his salary for one (1) year after his dismissal.
BACKGROUND TO THE ISSUE:
6. The Applicant was dismissed on two alleged counts of misconduct, namely, that he assaulted a learner and for improper conduct in that he hurled insults at the principal.
SURVEY OF THE EVIDENCE AND ARGUMENTS:
RESPONDENT’S CASE:
The Respondent referred to the testimony of the following witnesses as per the record of the disciplinary hearing:-
DR STEYN:
7. Steyn was a community doctor, when a learner Kopano was brought to him on 22 August 2012 by his father.
8. The learner told Steyn that he had been beaten by his teacher.
9. The learner had linear bruising, internal bleeding and was traumatized.
MRS VON MOLLENDORF:
10. She was informed by the learner’s father that the Applicant had assaulted his child.
11. Upon seeing the photos of the learner, she realized how serious the assault was, and she then referred the matter to labour relations.
12. On the second allegation she stated that when she handed a notice of the disciplinary hearing to the Applicant, the latter refused to sign for it and shouted at her saying that she harassed black staff and she must “voetsek”.
NEO NTOPO:
13. She was a Grade 5 learner in the same class as Kopano when the incident occurred.
14. She stated that the Applicant beat Kopano on the buttocks with a stick. She could not remember the type of stick.
15. It was visible on the face of Kopano that the pain was severe as he could not sit down.
16. She stated that the incident occurred in August and August is the eighth month.
MRS BIYANE:
17. She was a worker at the school and a member of the SGB.
18. It was on the re-opening of the school.
19. She passed the Applicant at the doorway and she heard him swearing as he walked out of the door of the principal’s office.
20. She heard the Applicant saying, “voetsek ha se sekolo sa hao sena” (this is not your school), the Applicant was waiving his hand backwards.
THE APPLICANT:
21. The Applicant denied the allegations as a fabrication.
22. The Applicant stated that Von Mollendorf and Benyane colluded against him.
23. Von Mollendorf saw him as a problem because he was a SADTU site steward and time and again raised pertinent issues. He was not in good terms with Benyane.
24. He denied saying “voetsek” but admitted saying that Von Mollendorf harassed black staff on a different date.
25. He admitted being in the principal’s office on 16 July 2012 to collect the notice of the disciplinary hearing but denied refusing to sign for it.
26. He denied beating Kopano however, admitted to being angry if things are not done in the right way.
WAIVER OF DISMISSAL:
27. The Respondent argued that this was an administrative error.
28. The error was discovered during the arbitration process and was immediately rectified thereafter.
29. During the period that the Applicant earned his salary, he did not render any service. He therefore benefited unfairly.
APPLICANT’S CASE:
DR Steyn’s testimony:
30. Dr Steyn did not lead evidence that specifically incriminate the Applicant.
31. He testified that he did not know who is alleged to have beaten the learner, Raleting.
32. He was also uncertain of the object used to inflict the alleged injury.
33. He examined the child and one linear mark was visible on the buttocks, the bruising had occurred two days before and it was difficult to determine his emotional state and trauma.
34. Secondly, his description of the injuries incurred is not consistent with the charge.
35. He was a subjective witness who testified that young children are unlikely to lie.
36. His testimony is hearsay and he relied on opinion evidence.
Mrs E C Von Mollendorf’s testimony:
Charge 1:
37. As the principal of the school, her evidence was pathetic and she was also naïve.
38. She testified that the complainant, Mr Kola, the father of the child did not tell her who assaulted his child during examination except to say “one of the teachers”.
39. This version casts doubt to the case as to why the parent could not volunteer the name of the teacher at first instance.
40. Secondly, the principal did not bother to probe this matter further on second encounter with the parent. The only inference to be drawn from this is that both the parent and principal were naïve and had no interest in this case.
41. She testified that Mr Smango is alleged to be the one who beat the child but failed to investigate or hear the side of Mr Smango (audi alteram partem) as required by a person in her position.
42. Her evidence is based on hearsay.
43. The photos of the child she received and submitted could not be authenticated.
44. She was inconsistent in her testimony and her recollection of events cannot be relied upon as she was referring to her notes in the hearing.
45. She further did not lead any evidence to prove a broken trust relationship between the employer and the Applicant except to say she had no bad feelings against the Applicant.
46. She was unreliable, doubtful and the documentary evidence she tendered is not admissible.
Charge 2:
47. Her testimony is based on assumptions.
48. It is common knowledge that she was in the office with Mr Khetla and the Applicant yet she failed to summon Mr Khetla to corroborate her version.
49. Her testimony cannot stand any test because she alleged “the insult” could have been directed not to her as alleged in the charge sheet as they were two in the office.
Me Binyane:
50. Her testimony is based on assumptions and cannot be relied on.
Neo Ntopo:
51. Her testimony was incoherent and her testimony was never corroborated by the complainant.
52. She was not a credible witness as she could not rebut the assertion of the Applicant.
53. In fact it was her word against the Applicants’ word.
54. Hearsay evidence tendered could not even be traced to the originator (learner) of the case because the report (affidavit) of the parent could not be admitted in the hearing. If it is considered then the question that arises is “What weight should be attached to hearsay”?
55. In the disciplinary hearing, the presiding officer did not make any ruling on the points in limine raised and in terms of the Law of Evidence Amendment Act 45 of 1998, a tribunal (e.g. a Court of law or arbitrator) may admit hearsay evidence under the following circumstances:
• The party against whom the evidence is to be adduced agrees to the admission of hearsay as evidence
• Where the originator, who is alleged by the witness to have made the statement, will himself/herself testify and
• Where the Court is of the opinion that such evidence should be admitted in the interest of justice.
56. In Metrorail Services and United Transport and Allied Trade Union obo Ndou (2002) 23 ILJ 1649 BCA, it was held that arbitrations and chairpersons of disciplinary hearings should generally admit hearsay evidence provided that (1) it has a sufficiency high probative value and (2) an adequate explanation can be given for the absence of the relevant witness(es). These two factors did not feature for purposes of fair hearing.
57. Further there are two universal and very important rules with respect to the introduction of documents:
• The first is that evidence is required to prove that a document constitutes what it purports to be. In doing so the witness does not make any statement concerning the truth of what is contained in the document. The witness’s testimony is only to confirm that the document is what it purports to be.
• The second rule is that the party must prove the contents of every document. A witness must e.g. testify as to the veracity of the contents of the document.
58. As noted above, all the witnesses of the Respondent did not meet these fundamental rules and the presiding officer relied on tendered documents without actual witnesses authenticating them. As such, their evidence was rebutted when the defence challenged the authenticity of the documents albeit without success.
59. The basic requirement for the admissibility of any means of proof is relevance. The doctor was more assuming in his version and he discredited himself by tendering opinion evidence.
60. Further, a fundamental requirement of a fair hearing is that the accused employee and the employer have a right to cross-examine each other’s witnesses. In principle, it is unfair to rely on claims by a person who does not testify at the disciplinary proceedings. If in this case the employer found it difficult to persuade the complainants to give evidence at disciplinary hearing because they are afraid to do so, the arbitrators at this stage of arbitration would be prepared to countenance the hearing of evidence in camera.
61. It is therefore submitted that the Respondent has not proved its case. The Commissioner should consider reinstating the Applicant based on the application of fairness.
ANALYSIS OF THE EVIDENCE AND ARGUMENTS:
AD CHARGE 1:
62. Dr Steyn stated at the disciplinary hearing that when the learner, Kopano, was brought to him by his father, Kopano told him that he was beaten by his teacher.
63. It was not disputed that the Applicant was Kopano’s teacher. The probability is therefore that the teacher in question was the Applicant.
64. The Applicant’s assertion that Dr Steyn stated that the injuries could have been inflicted by anyone else, is therefore incorrect. Kopano also stated that the person who assaulted him was known to him.
65. The medical report compiled by Dr Steyn also states that the nature of the injuries sustained by Kopano, were consistent with them having been inflicted by a blunt straight object on Kopano’s buttocks.
66. That it was the Applicant who beat the child was according to the testimony of Mollendorf confirmed by Kopano’s father when he lodged the complaint against the Applicant.
67. The learner, Neo Ntopo stated that she was in the same class as Kopano.
68. Neo confirmed that Kopano was beaten by the Applicant on the buttocks with a stick to extent that Kopano could not sit after the beating. Medical evidence confirmed the use of the blunt object.
69. The conclusion is therefore inescapable that based on the evidence of these three witnesses, the Applicant is the one who assaulted Kopano.
70. The Applicant’s assertion that he was found guilty on hearsay evidence, therefore stands to be rejected and must be rejected.
AD CHARGE 2:
71. Both Mollendorf and Binyane confirmed that the Applicant was swearing at Mollendorf. They both heard the words “voetsek” uttered by the Applicant to Mollendorf.
72. Binyane also stated that the Applicant was close to her when he made the utterance and this could only have been directed at Mollendorf as the Applicant came out of Mollendorf’s office and there was no third person in Mollendorf’s office at the time.
73. I can therefore find no justification as alluded to by the Applicant that the evidence of Mollendorf and Binyane was based on assumptions. In fact, the contrary is that their testimony was based on direct evidence. Neither one of the two witnesses mentioned the presence of a third person in the form of a certain Khetla.
74. The Applicant mentioned that Mollendorf should have called Khetla in collaboration, equally so, the Applicant should also have called Khetla in collaboration, which he also failed to do.
75. It is further startling that save for a bare denial, the Applicant did not comprehensively and elaboratively deal with his own version on both charges.
76. What the Applicant sought to do was to rely on hearsay evidence, which in my view is not applicable due to the direct evidence tendered against him.
77. The issue of a waiver of the dismissal was mentioned by the Applicant as one of the issues. However, same has not been dealt with by him in his submissions. I therefore conclude that he has abandoned this issue.
78. I am of the view that the Applicant was correctly found guilty of the charges against him and is not entitled to any relief.
AWARD:
79. The dismissal of the Applicant was procedurally and substantively fair.
80. The Applicant’s application is accordingly dismissed without an order for costs.
JEROME MTHEMBU
ELRC PANELIST
Province: Free State
Applicant: SADTU obo SMANGO
Respondent: Department of Education Free State
Issue: Unfair Dismissal - Misconduct
Award Date: 5 May 2015
Arbitrator: Jerome Mthembu
Commissioner: Jerome Mthembu
Case no: PSES 219-13/14
Date: 5 May 2015
In the matter between:
SADTU obo SMANGO
and
DEPARTMENT OF EDUCATION Applicant
Respondent
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION:
1. The hearing was held on 17 March 2015. Mr Lekhetho an official of SADTU represented the Applicant and Mr Maloka the Respondent.
2. The parties dispensed with oral evidence and agreed to file arguments as follows:
2.1 Respondent on 9 April 2015;
2.2 Applicant on 16 April 2015;
2.3 Respondent to reply on 24 April 2015.
3. In addition to its arguments, the Respondent tendered the record of the disciplinary hearing in support of its case.
THE ISSUE TO BE DECIDED:
4. Whether or not the dismissal of the Applicant was procedurally and substantively fair, and
5. Whether the Respondent waived the dismissal of the Applicant by paying him his salary for one (1) year after his dismissal.
BACKGROUND TO THE ISSUE:
6. The Applicant was dismissed on two alleged counts of misconduct, namely, that he assaulted a learner and for improper conduct in that he hurled insults at the principal.
SURVEY OF THE EVIDENCE AND ARGUMENTS:
RESPONDENT’S CASE:
The Respondent referred to the testimony of the following witnesses as per the record of the disciplinary hearing:-
DR STEYN:
7. Steyn was a community doctor, when a learner Kopano was brought to him on 22 August 2012 by his father.
8. The learner told Steyn that he had been beaten by his teacher.
9. The learner had linear bruising, internal bleeding and was traumatized.
MRS VON MOLLENDORF:
10. She was informed by the learner’s father that the Applicant had assaulted his child.
11. Upon seeing the photos of the learner, she realized how serious the assault was, and she then referred the matter to labour relations.
12. On the second allegation she stated that when she handed a notice of the disciplinary hearing to the Applicant, the latter refused to sign for it and shouted at her saying that she harassed black staff and she must “voetsek”.
NEO NTOPO:
13. She was a Grade 5 learner in the same class as Kopano when the incident occurred.
14. She stated that the Applicant beat Kopano on the buttocks with a stick. She could not remember the type of stick.
15. It was visible on the face of Kopano that the pain was severe as he could not sit down.
16. She stated that the incident occurred in August and August is the eighth month.
MRS BIYANE:
17. She was a worker at the school and a member of the SGB.
18. It was on the re-opening of the school.
19. She passed the Applicant at the doorway and she heard him swearing as he walked out of the door of the principal’s office.
20. She heard the Applicant saying, “voetsek ha se sekolo sa hao sena” (this is not your school), the Applicant was waiving his hand backwards.
THE APPLICANT:
21. The Applicant denied the allegations as a fabrication.
22. The Applicant stated that Von Mollendorf and Benyane colluded against him.
23. Von Mollendorf saw him as a problem because he was a SADTU site steward and time and again raised pertinent issues. He was not in good terms with Benyane.
24. He denied saying “voetsek” but admitted saying that Von Mollendorf harassed black staff on a different date.
25. He admitted being in the principal’s office on 16 July 2012 to collect the notice of the disciplinary hearing but denied refusing to sign for it.
26. He denied beating Kopano however, admitted to being angry if things are not done in the right way.
WAIVER OF DISMISSAL:
27. The Respondent argued that this was an administrative error.
28. The error was discovered during the arbitration process and was immediately rectified thereafter.
29. During the period that the Applicant earned his salary, he did not render any service. He therefore benefited unfairly.
APPLICANT’S CASE:
DR Steyn’s testimony:
30. Dr Steyn did not lead evidence that specifically incriminate the Applicant.
31. He testified that he did not know who is alleged to have beaten the learner, Raleting.
32. He was also uncertain of the object used to inflict the alleged injury.
33. He examined the child and one linear mark was visible on the buttocks, the bruising had occurred two days before and it was difficult to determine his emotional state and trauma.
34. Secondly, his description of the injuries incurred is not consistent with the charge.
35. He was a subjective witness who testified that young children are unlikely to lie.
36. His testimony is hearsay and he relied on opinion evidence.
Mrs E C Von Mollendorf’s testimony:
Charge 1:
37. As the principal of the school, her evidence was pathetic and she was also naïve.
38. She testified that the complainant, Mr Kola, the father of the child did not tell her who assaulted his child during examination except to say “one of the teachers”.
39. This version casts doubt to the case as to why the parent could not volunteer the name of the teacher at first instance.
40. Secondly, the principal did not bother to probe this matter further on second encounter with the parent. The only inference to be drawn from this is that both the parent and principal were naïve and had no interest in this case.
41. She testified that Mr Smango is alleged to be the one who beat the child but failed to investigate or hear the side of Mr Smango (audi alteram partem) as required by a person in her position.
42. Her evidence is based on hearsay.
43. The photos of the child she received and submitted could not be authenticated.
44. She was inconsistent in her testimony and her recollection of events cannot be relied upon as she was referring to her notes in the hearing.
45. She further did not lead any evidence to prove a broken trust relationship between the employer and the Applicant except to say she had no bad feelings against the Applicant.
46. She was unreliable, doubtful and the documentary evidence she tendered is not admissible.
Charge 2:
47. Her testimony is based on assumptions.
48. It is common knowledge that she was in the office with Mr Khetla and the Applicant yet she failed to summon Mr Khetla to corroborate her version.
49. Her testimony cannot stand any test because she alleged “the insult” could have been directed not to her as alleged in the charge sheet as they were two in the office.
Me Binyane:
50. Her testimony is based on assumptions and cannot be relied on.
Neo Ntopo:
51. Her testimony was incoherent and her testimony was never corroborated by the complainant.
52. She was not a credible witness as she could not rebut the assertion of the Applicant.
53. In fact it was her word against the Applicants’ word.
54. Hearsay evidence tendered could not even be traced to the originator (learner) of the case because the report (affidavit) of the parent could not be admitted in the hearing. If it is considered then the question that arises is “What weight should be attached to hearsay”?
55. In the disciplinary hearing, the presiding officer did not make any ruling on the points in limine raised and in terms of the Law of Evidence Amendment Act 45 of 1998, a tribunal (e.g. a Court of law or arbitrator) may admit hearsay evidence under the following circumstances:
• The party against whom the evidence is to be adduced agrees to the admission of hearsay as evidence
• Where the originator, who is alleged by the witness to have made the statement, will himself/herself testify and
• Where the Court is of the opinion that such evidence should be admitted in the interest of justice.
56. In Metrorail Services and United Transport and Allied Trade Union obo Ndou (2002) 23 ILJ 1649 BCA, it was held that arbitrations and chairpersons of disciplinary hearings should generally admit hearsay evidence provided that (1) it has a sufficiency high probative value and (2) an adequate explanation can be given for the absence of the relevant witness(es). These two factors did not feature for purposes of fair hearing.
57. Further there are two universal and very important rules with respect to the introduction of documents:
• The first is that evidence is required to prove that a document constitutes what it purports to be. In doing so the witness does not make any statement concerning the truth of what is contained in the document. The witness’s testimony is only to confirm that the document is what it purports to be.
• The second rule is that the party must prove the contents of every document. A witness must e.g. testify as to the veracity of the contents of the document.
58. As noted above, all the witnesses of the Respondent did not meet these fundamental rules and the presiding officer relied on tendered documents without actual witnesses authenticating them. As such, their evidence was rebutted when the defence challenged the authenticity of the documents albeit without success.
59. The basic requirement for the admissibility of any means of proof is relevance. The doctor was more assuming in his version and he discredited himself by tendering opinion evidence.
60. Further, a fundamental requirement of a fair hearing is that the accused employee and the employer have a right to cross-examine each other’s witnesses. In principle, it is unfair to rely on claims by a person who does not testify at the disciplinary proceedings. If in this case the employer found it difficult to persuade the complainants to give evidence at disciplinary hearing because they are afraid to do so, the arbitrators at this stage of arbitration would be prepared to countenance the hearing of evidence in camera.
61. It is therefore submitted that the Respondent has not proved its case. The Commissioner should consider reinstating the Applicant based on the application of fairness.
ANALYSIS OF THE EVIDENCE AND ARGUMENTS:
AD CHARGE 1:
62. Dr Steyn stated at the disciplinary hearing that when the learner, Kopano, was brought to him by his father, Kopano told him that he was beaten by his teacher.
63. It was not disputed that the Applicant was Kopano’s teacher. The probability is therefore that the teacher in question was the Applicant.
64. The Applicant’s assertion that Dr Steyn stated that the injuries could have been inflicted by anyone else, is therefore incorrect. Kopano also stated that the person who assaulted him was known to him.
65. The medical report compiled by Dr Steyn also states that the nature of the injuries sustained by Kopano, were consistent with them having been inflicted by a blunt straight object on Kopano’s buttocks.
66. That it was the Applicant who beat the child was according to the testimony of Mollendorf confirmed by Kopano’s father when he lodged the complaint against the Applicant.
67. The learner, Neo Ntopo stated that she was in the same class as Kopano.
68. Neo confirmed that Kopano was beaten by the Applicant on the buttocks with a stick to extent that Kopano could not sit after the beating. Medical evidence confirmed the use of the blunt object.
69. The conclusion is therefore inescapable that based on the evidence of these three witnesses, the Applicant is the one who assaulted Kopano.
70. The Applicant’s assertion that he was found guilty on hearsay evidence, therefore stands to be rejected and must be rejected.
AD CHARGE 2:
71. Both Mollendorf and Binyane confirmed that the Applicant was swearing at Mollendorf. They both heard the words “voetsek” uttered by the Applicant to Mollendorf.
72. Binyane also stated that the Applicant was close to her when he made the utterance and this could only have been directed at Mollendorf as the Applicant came out of Mollendorf’s office and there was no third person in Mollendorf’s office at the time.
73. I can therefore find no justification as alluded to by the Applicant that the evidence of Mollendorf and Binyane was based on assumptions. In fact, the contrary is that their testimony was based on direct evidence. Neither one of the two witnesses mentioned the presence of a third person in the form of a certain Khetla.
74. The Applicant mentioned that Mollendorf should have called Khetla in collaboration, equally so, the Applicant should also have called Khetla in collaboration, which he also failed to do.
75. It is further startling that save for a bare denial, the Applicant did not comprehensively and elaboratively deal with his own version on both charges.
76. What the Applicant sought to do was to rely on hearsay evidence, which in my view is not applicable due to the direct evidence tendered against him.
77. The issue of a waiver of the dismissal was mentioned by the Applicant as one of the issues. However, same has not been dealt with by him in his submissions. I therefore conclude that he has abandoned this issue.
78. I am of the view that the Applicant was correctly found guilty of the charges against him and is not entitled to any relief.
AWARD:
79. The dismissal of the Applicant was procedurally and substantively fair.
80. The Applicant’s application is accordingly dismissed without an order for costs.
JEROME MTHEMBU
ELRC PANELIST