PSES223-16/17GP
PSES223-16/17GP
Award Date:
16 January 2017
Case Number: PSES223-16/17GP
Province: Gauteng
Applicant: Marinus De Beer
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Misconduct
Award Date: 16 January 2017
Arbitrator: Ravi Naidoo
Commissioner: Ravi Naidoo
Case No: PSES223-16/17GP
Date of Ruling: 16 January 2017
IN THE MATTER BETWEEN:
Marinus De Beer Union / Applicant / Employee party
And
Gauteng Department of Education Respondent / Employer party
Union/Employee’s representative: H Luus (attorney)
Union/Employee’s address:
Telephone:
082 788 2949
Fax:
086 677 0785
Employer’s representative:
M Tshitshiba
Employer’s Address:
Telephone:
011 355 0461
Fax:
011 355 0446/ 086 559 4295
1.Details of hearing and representation:
The arbitration hearing commenced 22 September 2016. A ruling was made permitting legal representation in this matter. The Applicant was represented by H Luus, an attorney. The Respondent was represented by M Tshitshiba, an official working in the Labour Relations Department of the Respondent. The matter remained part heard on 22 September 2016 and reconvened on 25 October 2016 and was still part heard. The matter was finalised on 25 November 2016. Parties were requested to file their closing arguments by 02 December 2016.
2.Issue to be decided:
1) Whether the dismissal of the Applicant was procedurally and substantively fair.
2) The Applicant raised the following procedural issues:
No Investigation was conducted in terms of Schedule 8 item (4)
Unreasonable time lapse from the alleged incident and the Applicant being brought to a disciplinary enquiry.
3) In terms of substance the Applicant denied both charges (charges 1 & 3 as per the charge sheet) in its entirety.
3.Background to the issues:
1) The Applicant was employed as a Deputy Principal at Laerskool Krugersdorp Noord at the time of his dismissal. The Applicant had 24 years and 7 months service with the Respondent at the date of his dismissal and earned R33 708-50 per month. The Applicant was dismissed for alleged misconduct and sought retrospective reinstatement as a remedy.
4. Survey of the evidence and argument:
4.1 Respondent’s Evidence
4.1.1 Witness 1: Musa Dlamini testified as follows:
1) The Witness is the Labour Relations Officer for the Department of Education and is responsible for investigating and initiating on matters referred to the District Office.
2) Laerskool Krugersdorp Noord is one of the schools that falls within the witness’s jurisdiction.
3) The witness interviewed Mr Molebatsi and Molebatsi indicated to him that the Applicant had called him a “kaffir” and told him the he “bliksems baie hard”. Molebatsi reported that the incident had occurred in the storeroom.
4) The witness did not interview the Principal, as he was not present when the incident occurred. Due to the seriousness of the matter, the Principal did not have the authority to deal with the matter.
5) The witness also interviewed the IDSO, Ms Khashane. She reported that Molebatsi had approached her and complained at the District Office about the alleged incident. She indicated that the complaint was raised on the day that the incident occurred.
6) After investigating the incident, the witness recommended that the Applicant be charged for misconduct.
7) When the witness went to give the Applicant the audi letter, the Applicant indicated to the witness that it would be Molebatsi’s word against his. The audi letter was given to afford the Applicant an opportunity to respond to the allegations.
8) The Applicant did respond to the allegations in writing (Page9 of Applicants Bundle). The witness gave consideration to the response and was not convinced by the Applicant’s submission.
9) The investigation into the alleged incident took place in April 2015. The matter was referred to the witness’s office on 7 April 2015. The witness could not confirm the exact date when Molebatsi lodged the complaint.
10) The charges are not drafted at District level. Such is done at the Provincial Head Office.
11) The Applicant would have received the notice to attend the disciplinary enquiry at least 10 days prior to the scheduled date. On the first date that was scheduled for the hearing, the presiding officer was unable to avail himself. There was a second postponement when the presiding officer, Adv Mkabela, entertained a request from the Applicant’s representative to utilise a witness from the employer. The presiding officer wanted an opportunity to explore the case law regarding the aforementioned.
4.1.2 Cross Examination
1) The witness went to the school where the Applicant was based in order to investigate the matter. The investigation was carried out over a few days.
2) The witness interviewed Molebatsi for approximately 2-3 hours. He interviewed Willie Guthree (Molebatsi’s supervisor) and also interviewed the IDSO, Ms Khashane for about an hour. Guthree was never presented as a witness at the disciplinary enquiry.
3) The witness indicated that he did not approach Cynthia Lubelo as part of his investigation because Lubelo indicated to him that she occupied an SGB post and if she participated in the hearing she would place her job in jeopardy.
4.1.3 Re-Examination
1) No questions asked in re-examination
4.1.4 Witness 2: Mercy Khashane testified as follows
1) The witness is an IDSO (Institutional Development Support Official) for the Respondent.
2) The witness is familiar with the Applicant as he was a Deputy Principal at the school in question.
3) Mr Molebatsi was a general worker employed at the school.
4) Molebatsi approached the witness in March 2015 and complained that the Applicant had called him a “Kaffir” and said that he was going to “bliksem him hard”
5) The witness could not attest to the exact date when Molebatsi came to complain to her. The witness advised Molebatsi to refer a complaint to the District Director.
6) The complaint must have been filed because the witness was interviewed by an official from the District Labour Relations Department.
7) The witness was told that the Applicant had been dismissed.
8) The Applicant is currently working at the same school as an SGB employee. The Department is currently investigating this.
4.1.5 Cross Examination
1) The witness had no contact with the Principal regarding this matter.
2) The witness confirmed that the incident occurred in March 2015. The witness assumed that the incident occurred on the same day that the Applicant had complained to her, due to the Applicant’s expression. It was put to the witness that the incident did not occur on the day which the Applicant complained.
3) The witness could recall that there was a conversation with the Applicant where the Applicant complained about the allegations. The witness expressed her disappointment to the Applicant concerning the allegations.
4) It was put to the witness that the incident occurred on 11 March 2011 and that Molebatsi only approached the District Office on 27 March 2105. The witness was unable to recall any timeframes.
5) Dlamini did have a discussion with the witness regarding the incident. The discussion lasted for less than an hour.
4.1.6 Re-Examination
1) After the alleged incident Molebatsi later applied for leave.
4.1.7 Witness 3: David Molebatsi testified as follows:
1) In 2015 the witness was employed at Laerskool Krugersdorp as a general worker.
2) The incident between the witness and the Applicant took place in the storeroom. The Applicant had entered the storeroom and asked the witness what job he was busy doing. The witness indicated that he was busy fixing a table for one of the educators. The Applicant began kicking things and said to the witness that he should not be doing that job. The Applicant then called the witness a “Kaffir” and said to the witness that he would “moer him very hard”.
3) The witness indicated that after the incident he went to the office of the Principal to report the incident, but the Principal was not present. The Applicant could not report to the Deputy Principal, because the Applicant was the Deputy Principal. The witness then decided to approach the District Office and approached Ms Khashane.
4) The witness indicated that he applied for leave after the incident occurred.
4.1.8 Cross Examination
1) The witness indicated that he made a verbal report to Ms Khashane about the incident. Khashane advised the witness to file a complaint. The witness filed a written complaint with the District Office.
2) The witness indicated that he wrote the letter on the same day of the incident and submitted it the following day.
3) The incident occurred on 19 March 2015. The witness remembered that date because when he arrived at home he marked it on his calendar.
4) The witness made a statement to Musa Dlamini. Dlamini wrote down the submission. The witness could not recall for how long Dlamini had interviewed him, but it did take some time.
5) Because the Principal was not present, the witness approached the Applicant to apply for leave. Leave had to be applied for in advance.
6) The witness requested leave from the Applicant and the Applicant refused to give him the leave forms to make the application. The witness indicated that he did not put the date on the leave forms, all he did was to sign the leave forms. Whomever dealt with the leave forms put in the dates.
7) It was put to the witness that his leave application was denied by the Applicant, however the witness still proceeded to take the leave in April 2015. The witness denied this.
8) The witness indicated that he did previously submit leave forms prior to going on leave.
9) The witness confirmed that on the day of the alleged incident, the Applicant did request Cynthia Lubelo to leave the storeroom.
10) It was put to the witness that the Applicant had given him work 2 months prior, to make signage for the parents day and the witness failed to do the work. The witness disagreed that he was given such instruction 2 months prior and indicated that he was only given two days to complete the signage on the doors.
11) It was put to the witness that when the Applicant walked into the storeroom, he was not even busy with the task given to him by the Applicant, but was busy with another task.
12) The witness confirmed that the Applicant called him a “Kaffir” and threatened him.
13) The witness indicated that his child wrote the letter of complaint on his behalf.
14) The witness was then asked “why he was feeling threatened by the words of the Applicant “Can Moer baie hard”. The witness indicated that in all the time that he had been employed, no one had ever approached him in that manner and that induced fear in him. The witness indicated that he could not read the Applicants mind and would not know whether the Applicant would carry out such a threat immediately or sometime in the future.
15) Cynthia Lubelo was afraid to testify because she felt that she might lose her job as she was employed by the SGB.
16) Cynthia had left the storeroom completely. It was put to the witness that Cynthia had confronted him and told him that the Applicant did not use the word “Kaffir”. The witness denied that Cynthia had ever approached him in this regard.
17) The witness indicated that he had a good relationship with Cynthia, even to date.
18) The witness indicated that he took a decision to report the matter at the District Office. There was no need to report it again to the Principal.
19) The witness denied that he stormed out of the office when the Applicant denied him leave. The witness indicated that when he was informed that he could not take leave, the Applicant was about to depart with the bus.
20) The witness indicated that he had a good relationship with Willie Guthree. Guthree had indicated to him that the forms were not available and that they would fill the leave forms in when the witness returned from leave. The witness could not recall the exact date, but indicated that it was towards the end of March 2015. The leave forms were only signed on the witness’s return from leave.
21) It was put to the witness that the Applicant denied calling him a “Kaffir”. The Applicant insisted that the Applicant did do so.
4.1.9 Re-Examination
1) No questions asked in re-examination
4.2 Applicant’s Evidence
4.2.1 The Applicant, Marinus De Beer testified as follows:
1) On 11 March 2015 the Applicant went into the workshop to check on the work which he requested Molebatsi to complete. He found Molebatsi fixing some desks.
2) The Applicant indicated that he had on several occasions asked Molebatsi to prepare name boards for the teachers and put same up for the parents day. Molebatsi failed to do so.
3) The Applicant queried why Molebatsi was fixing the table instead of completing the name boards.
4) Cynthia Lubelo was present when the witness entered the storeroom. He requested Cynthia to leave the workshop such that he could have a discussion with the Applicant in private.
5) Molebatsi had indicated to the Applicant that he would first complete fixing the table, which one of the female educators had asked him to do, and then he would complete the name boards. The Applicant told Molebatsi that there were other tables which the educator could utilise. Molebatsi refused to heed to the instruction.
6) The Applicant denied calling Molebatsi a “Kaffir”, neither did he threaten him by saying he “bliksems hard”.
7) The Applicant indicated that he then left the workshop and as he walked out he bumped into one of the tables that was on the ramp at the entrance and the table fell over. The Applicant indicated that he just continued walking after knocking the table over.
8) The following day the Applicant found that the name boards had been completed. For almost two months Molebatsi did not comply with the request to sort out the name boards for the educators.
9) On 25 March 2015 Molebatsi came to the Applicant’s office and requested to take leave. The Applicant indicated to Molebatsi that he was not rostered to take leave during that period as another staff member (Guthree) was already taking leave and that Molebatsi’s services were required. Molebatsi became angry and walked out of the Applicant’s office.
10) Molebatsi did not hand in any written request for leave on 25 march 2015. The Applicant then phoned Guthree and told him that he had declined Molebatsi’s request for leave and requested Guthree to accompany Molebatsi to his office to discuss the issue. Guthree returned the Applicant’s call and indicated that Molebatsi refused to discuss the matter.
11) Molebatsi then took leave without same being granted. He’s leave was considered unauthorised. Molebatsi did not report for duty for the entire month of April 2015.
12) On 27 March 2015, the Applicant received a phone call from Mercy Khashane who indicated to him that she was disappointed with the Applicant. The Applicant was taken aback. The Applicant had seen Khashane the previous day when he had submitted some documents for the SGB. The Applicant thought there was something untoward about the documentation. The Applicant was shocked when Khashane told him that Molebatsi had come to her office and alleged that the Applicant had called him a “Kaffir”. The Applicant said that he would immediately come and see Khashane to discuss the allegation. Khashane indicated to the Applicant that Molebatsi had already left and that she was not available to discuss the issue.
13) The Applicant was requested by Musa Dlamini to give a written statement regarding the alleged incident (P9-11 of the Applicant’s bundle).
14) Molebatsi came back to school at the beginning of May 2015. The Applicant did not have an opportunity to speak to Molebatsi, neither did the Applicant take any disciplinary action against Molebatsi because he feared that he would be accused of victimising Molebatsi.
15) The Applicant alleged that when he addressed Molebatsi on 11 March 2015, after Molebatsi had ignored him, the Applicant did raise his voice when he reiterated to Molebatsi what was required of him.
16) Molebatsi’s version was that the incident occurred on 19 March 2015 and he approached Khashane on 25 March 2015.
17) The Applicant indicated that he did not threaten Molebatsi. His words to him was that he would not go home until the work was completed.
18) In his 24 years of employment, prior to the charges being put to him, at no time was the Applicant ever dismissed or disciplined. The incident has tarnished the Applicant’s reputation and his son, who is a learner at the school, has also been negatively affected.
19) After the Applicant was dismissed by the GDE, the SGB took a decision to retain the Applicant’s services because they did not want to lose the Applicant’s services. When the SGB met to discuss the incident, the name of Cynthia Lubelo emerged and the Principal, Mr Muller, was tasked to interact with Lubelo regarding the incident.
4.2.2 Cross Examination
1) The Applicant was not present when Cynthia Lubelo was engaged by the Principal concerning the issue. The Applicant did not call Cynthia to testify on his behalf at the disciplinary enquiry.
2) Cynthia Lubelo is an SGB employee. The Applicant was not aware as to what the interaction was between Lubelo and the Principal. The applicant indicated that he only met with Lubelo on the previous day to discuss the incident.
3) The instruction to the Principal was to investigate whether Cynthia Lubelo knew more about the incident, because she was present prior to the alleged incident.
4) The SGB was sympathetic towards the Applicant being dismissed. The SGB felt that the matter still needed to be decided by the ELRC.
5) The Applicant had sight of Cynthia Lubelo’s statement at the previous sitting of the arbitration. It was put to the witness that Lubelo’s statement was never presented at the previous sitting of the arbitration. The Applicant indicated that his representative had provided him with the written statement. The Applicant’s representative had received the written statement from the Principal. Prior to reading the statement, the Applicant was verbally informed by the Principal of its contents.
6) The Applicant did not call Lubelo as a witness because he had told her to leave the workshop area.
7) Cynthia Lubelo was going to testify as a result of a meeting which took place between the Applicant, the Principal and the SGB. It was also as a result of the aforementioned meeting that Lubelo made a written statement.
8) It was put to the witness that it was the Principals responsibility to grant leave. The Applicant indicated that the responsibility was delegated to him to manage the leave. All leave forms are signed off by the Principal.
9) The Applicant asked Lubelo to leave after the Applicant asked Molebatsi what he was doing and Molebatsi indicating that he was busy fixing a table. When the Applicant realised that Molebatsi did not complete the work that he had requested (name boards), he asked Lubelo to leave. The Applicant raised his voice at Molebatsi because he was angry.
10) The Applicant was unable to explain why he did not take disciplinary action against Molebatsi for not following instructions and absenting himself without authority.
11) The Applicant was of the view that Molebatsi had concocted the story because he had denied him leave.
12) At the time when Molebatsi requested leave the alleged incident had already occurred. Only two days after the Applicant took issue with Molebatsi’s leave, did Molebatsi report the alleged incident to Khashane.
13) The Applicant was referred to Molebatsi’s leave form and indicated that it was probably the admin person who put the date on the product. According to the leave form, the Principal signed off the form on 5 May 2015, after Molebatsi had returned from leave.
14) The Applicant did not take disciplinary action against Molebatsi because by then he had already received a letter from Musa Dlamini regarding the alleged incident. No disciplinary action was taken against Molebatsi because it would come across as though the School was victimising Molebatsi.
15) The Applicant concurred that the allegations against him were serious.
4.2.3 Re-Examination
1) From mid-January to mid-February 2015, Molebatsi failed to complete the task that was given to him by the Applicant.
4.2.4 Witness2 : Cynthia Lubelo testified as follows:
1) The witness was seated in the storeroom with Molebatsi, when the Applicant entered. The Applicant requested the witness to leave the storeroom. The witness exited the storeroom and proceeded to sit outside where the tractor was.
2) Whilst seated outside the witness heard shouting and there was an exchange between the Applicant and Molebatsi in Afrikaans. The witness heard somebody bang the table and heard it break.
3) After the shouting subsided, the Applicant told the witness that she could go back into the storeroom.
4) The witness asked Molebatsi what had happened to the table because it was broken. Molebatsi indicated that the Applicant had broken the table.
5) The witness has a good relationship with Molebatsi.
6) The witness at no time had any contact with Musa Dlamini.
7) The witness is in a relationship with Molebatsi.
8) The witness indicated that when she was seated outside, she did not hear clearly and could not understand the conversation because it was in Afrikaans.
9) The witness had a discussion with Molebatsi after the incident and asked what had happened. Molebatsi indicated that the Applicant had requested him to fix the name boards and also the tables.
10) Molebatsi complained that he should have only been given one task.
11) The witness told Molebatsi that if this matter was going to be taken to Labour, she did not want to be involved. Molebatsi was angry and indicated that he could not be given a lot of work because he only had two hands.
4.2.5 Cross Examination
1) The witness is employed by the SGB on a permanent basis.
2) The witness indicated that it was possible that she did not remember everything that had transpired on the day.
3) The witness did not testify at the disciplinary enquiry because she did not hear the actual discussion between the Applicant and Molebatsi.
4) The witness indicated that from the tone the discussion between the Applicant and Molebatsi did not seem to be a friendly one.
4.2.6 Re-Examination
1) The witness expressed the opinion that that Molebatsi could have told her if he had been insulted, or he could have also told the witness if he was not insulted.
The closing arguments of the parties were noted
5. Analysis of evidence and argument :
1) The Applicant challenged both the procedural and substantive fairness of his dismissal.
2) In terms of procedure the Applicant alleged that there was no investigation carried out and this contravened compliance with Schedule 8 of the codes of good practice. The Applicant also alleged that there was an unreasonable time lapse from the alleged transgression to him being charged for same.
3) On the issue of the investigation, I fail to see any merit in the Applicant’s argument. Dlamini testified that he had investigated the matter by interviewing various witnesses and he also requested the Applicant to give a written statement, before he could take a decision to formally charge the Applicant for the alleged transgression. None of the aforementioned were placed in dispute. I therefore fail to find any merit in the Applicant’s submission that there was no investigation. If the Applicant for any reason is alluding that there should have been an investigative report, then such is also without merit as there is no prescription or compulsion in this regard.
4) On the issue of the alleged unreasonable delay in charging the Applicant and proceeding with the disciplinary action, I find such assertion also to be without any merit. Dlamini testified that he became aware of the matter at the beginning of April 2015. If we were to even accept the Applicant’s version that the interaction with Molebatsi took place on 11 March 2015 and that Molebatsi had reported the matter on 27 March 2015, then I can find no time delay in the investigation commencing in April 2015. According to the disciplinary notice, it would seem that the charges were put to the Applicant on or about 3 August 2015. Whilst there is a time delay of approximately 3 to 4 months from the investigation commencing to the Applicant being charged, there is no evidence presented to suggest that the Applicant suffered any prejudice during this period. The Applicant still remained gainfully employed and was not prejudiced in anyway in terms of the payment of his salary.
5) Given the aforementioned, the dismissal of the Applicant is procedurally fair.
6) On the issue of the substantive fairness, the Applicant faced and was dismissed for the following allegations:
Allegation 1 on the charge sheet
“It is alleged that in or around March 2015 you conducted yourself in an improper, disgraceful or unacceptable manner in that you called Mr D Molebatsi, a General assistant at Laerskool Krugersdorp Noord a “Kaffir”.
Allegation 3 on the charge sheet
“ It is alleged that in or around March 2015 you intimidated and/or victimised Mr D Molebatsi, a General Assistant at Laerskool Krugersdorp Noord, in that you told him that you bliksem baied hard”.
7) The Applicant denied the aforementioned allegations in its entirety.
8) From the testimony of both the Applicant and Molebatsi we know that it is common cause that it was only the Applicant and Molebatsi present in the store room when the alleged incident occurred. We also know from the Applicants own submission that he did become angry and did raise his voice at Molebatsi. This was also confirmed by Cynthia Lubelo, whom the Applicant had requested to excuse herself from the store room, but who was seated outside and testified that she could hear that the Applicant and Molebatsi engaged in an argument, but could not exactly understand or possibly hear what was being said as the two spoke in Afrikaans.
9) It was Molebatsi’s submission that the Applicant called him a “Kaffir”. The Applicant denied this and indicated in his defence that the possible reason for Molebatsi concocting such a story was because the Applicant had denied him leave. Molebatsi denied the aforementioned and indicated that it is correct that he only signed the leave forms when he returned from leave, because Guthree, his supervisor, had indicated to him that there were no leave forms available and that they would fill same on the Applicant’s return. The Applicant further stated that he did not fill in the form in its entirety and only merely signed same. This was evident when the form was perused during the arbitration.
10) There was disagreement about the date on which the verbal altercation had taken place between the Applicant and Molebatsi. The Applicant alleged that such occurred on 11 March 2015, whilst the Molebatsi indicated that the incident occurred on 19 March 2015. Molebatsi insisted that it was the 19 March 2015 and the reason he cited that he remembered same was because he had marked off the date on his calendar at home on the day of the incident. He also indicated that he sought the assistance of his child to put the complaint in writing. The Applicant’s insistence and importance surrounding the date was the submission that if the incident occurred on 11 March 2015, why did it take the Applicant so long (until 27 March 2015) to approach the District Office with the complaint. This in the Applicant’s view supported his contention that the only reason that Molebatsi had allegedly concocted such a story was because the Applicant had denied him leave when Molebatsi approached him on 25 March 2015. It is not disputed that Molebatsi had approached the IDSO, Mercy Khashane, with the complaint. Khashane was unable to recall the exact date on which this happened. One then would interestingly then look at the testimony of the Respondent’s witness Cynthia Lubelo. Lubelo testified, and it was not disputed, that after the verbal altercation between the Applicant and Molebatsi, she went back into the storeroom and found Molebatsi visibly upset. She also testified that while she was seated outside she heard a table break and when she entered the storeroom she found the table had been broken and asked what had happened, only to be told by Molebatsi that the Applicant had broken the table. It would be highly improbable that it was Molebatsi who could have broken the table, because he was busy putting effort into fixing the table. We know from both the Applicant’s testimony and Molebatsi’s testimony that the Applicant was upset that Molebatsi was fixing the table instead of performing the task that the Applicant had assigned to him and that this had angered the Applicant. It is therefore more probable that the Applicant had broken the table. If it was Molebatsi that had broken the table (which according to Lubelo occurred during the verbal altercation, because she heard the sound of the table breaking and shortly thereafter physically witnessed the broken table), then surely the Applicant would have mentioned that Molebatsi had become angry and broken the table. The only submission by the Applicant was that he, on his way out knocked down a table which was on the ramp at the entrance to the workshop. Whilst one might think that I am digressing to a charge on which the Applicant was found not guilty at the disciplinary enquiry, this is not the intention, but rather looking at the incident in its entirety in context, given the nature of the evidence, the finding in this matter hinges on who’s version (between Molebatsi and the Applicant) is more probable and truthful. This would go to the credibility of both the Applicant and Molebatsi in their submission. Given the aforementioned it becomes more probable that the Applicant in his submission had tried to water down the extent of his anger and the pursuant action that accompanied same. To merely state that he knocked down a table on his way out seems highly improbable, given the testimony of Lubelo. One would therefore question why the Applicant omitted such an important detail in his submission. The only logical conclusion that one could reach in this regard is that the Applicant was concealing the extent of his actions.
11) This brings us to the question as to the probability that existed as to whether the Applicant could have called Molebatsi a “Kaffir”. It is interesting to note that in the cross examination of Molebatsi, a version was put to Molebatsi that after the alleged altercation, Lubelo had confronted him and indicated to him that the Applicant had not called him a “Kaffir”. Molebatsi denied that this was the case. What is of interest is that this testimony was never led by Lubelo herself in evidence in chief, as the witness for the Applicant. If this version was true (and it would have been absolutely critical in the Applicant’s defence), surely such question would have been put to Lubelo by the Applicant or his legal representative. Instead the Applicant steered clear of such. One could only begin to question the veracity of such a version, put to Molebatsi by the Applicant, since it was the express testimony of Lubelo that she did not hear or understand the conversation between the Applicant and Molebatsi because she was outside and the conversation was in Afrikaans. What she could hear was that the Applicant and Molebatsi had raised their voices and from this she deduced that it was not a friendly conversation. Thus Lubelo could not have possibly have confronted Molebatsi and said to him that the Applicant had not used the word “Kaffir”. It would seem that the Applicant utilised any opportunity to divert from what was possibly the probable version (that the Applicant did make use of the word “Kaffir” when addressing Molebatsi) and put a fabricated version for Molebatsi to respond to. This goes directly to the credibility of the version put forward by the Applicant.
12) Furthermore, Lubelo testified that when she entered the store room after the verbal altercation between the Applicant and Molebatsi and after she had questioned Molebatsi about what had transpired, she indicated to Molebatsi that if the matter was to go to “Labour”, she did not want to be involved. This submission went unchallenged. If this be the case, then it would seem that on the day in question there was already some discussion between Molebatsi and Lubelo regarding a possible labour issue resulting from the altercation and Lubelo had indicated that she wanted nothing to do with it. If this be the case, then it is highly unlikely that Molebatsi could have only thought about filing a complaint after the Applicant had allegedly denied him leave. The thought of a labour issue, according to Lubelo’s testimony, had already occurred on the day of the incident. I have no reason to doubt the submissions made by Lubelo as she was consistent in her testimony. Furthermore, as attested to, she was in a relationship with Molebatsi and yet she agreed to testify on behalf of the Applicant. Lubelo could have easily fabricated a story in favour of Molebatsi, but she did not. Lubelo presented herself as an honest and credible witness. It must also further be noted that Lubelo did not testify at the Applicant’s disciplinary enquiry, because it was the Applicant’s submission that Lubelo was outside when the incident occurred and according to the Applicant could not have possibly added value to his case. Lubelo’s willingness to testify was as a result of the intervention of the Principal and the SGB. Only after the Principal and the SGB had called Lubelo to a meeting, did she agree to testify.
13) Another interesting submission made to Molebatsi in cross examination by the Applicant’s legal representative was the issue dealing with the allegation that the Applicant had threatened Molebatsi by saying he “Can Moer baie hard”. Molebatsi was asked why he would feel threatened by such words. Implicit in such an approach is that the Applicant is not denying that he had uttered same, but that such was not considered to be threatening. Given the aforementioned then, it is interesting to note that the Applicant in defining the parameters of the arbitration indicated that in terms of substance, he denied the allegations in its entirety implying that he did not make such utterances. This once again goes to the credibility of the Applicant’s version that he merely only raised his voice at Molebatsi.
14) Taking the events in its entirety into account, it was the Applicant’s submission that Molebatsi had misconducted himself by firstly failing to follow a direct instruction that was given to him almost two months prior to the verbal altercation with the Applicant, and secondly by absenting himself without authority from work for a period of a month. The aforementioned is a serious transgression for which Molebatsi certainly could be successfully disciplined if such was true. The Applicant’s submission was that Molebatsi was not disciplined because the School was afraid that it would be perceived as though the Molebatsi was being victimised. This submission by the Applicant lacks all reasonableness. One is expected to act with consistency when employees transgress in anyway. Why then was there a need to afford any special treatment to Molebatsi and why should there be any fear by the Applicant to discipline Molebatsi, given that the Applicant was confident that he had not wronged Molebatsi in anyway by using derogatory and threatening language towards him. The Applicant’s own statement on the incident was tabled as evidence in the bundle of documents and referred to. If one reads the Applicant’s statement to the Respondent, the Applicant clearly outlines his extensive experience as an educator, but more importantly makes mention of working for period of 16 years at a multi-cultural school and outlines his interaction at what he insinuates to be at a either at a multi-cultural or non-racial level. If this be the case, then neither the Applicant nor the Principal (who was responsible for signing Molebatsi’s leave form dated 5 May 2015 indicating that the leave was unauthorised) should have had any hesitation in disciplining Molebatsi for such a serious transgression. In certain circumstance taking such prolonged (1 month) of unauthorised leave could amount to a dismissible offence. Yet no action was taken against Molebatsi, because according to the Applicant, caution was being exercised against being seen as victimising Molebatsi. This makes absolutely no sense at all. Unless of course great caution was being exercised because the Applicant was fully aware of his derogatory utterances and the seriousness thereof. It is clear from the actions of the SGB and the Principal, that they have clearly put their weight behind the Applicant, to the extent that they re-employed the Applicant in an SGB post after he was dismissed by the Respondent. This is also evident in the Principal and the SGB intervening in getting Cynthia Lubelo to testify on the Applicant’s behalf.
15) Having due regard for all the aforementioned evidence the scales of probability leans towards confirming that the Applicant had made the derogatory utterances as alluded to by Molebatsi. Molebatsi was consistent in his responses and at no time came across as though he had concocted a version. Furthermore, even if one were to accept the Applicants version that leave was not granted to Molebatsi, there is no evidence to suggest that Molebatsi concocted a story on 27 March 2015 to leverage the Applicant for leave or to spite the Applicant in any way, given that if the leave was unauthorised as per the Applicant’s version, Molebatsi had placed himself at risk. Molebatsi would not have had any way of knowing that because of his allegations against the Applicant that neither the Applicant nor the Principal would not take disciplinary action against him because they were exercising caution, even though Molebatsi had allegedly misconducted himself in a serious light.
16) In the matter South African Revenue Services (SARS) v CCMA and Others, specific reference was made to the use of the word “Kaffir” and great detail was spent in highlighting the historical context of the use of such a word. In a nutshell the use of the word “Kaffir” cannot be dismissed as merely a linguistically derogatory term. Its use is steeped in a historical undertone of being oppressive, degrading, insulting and more so affirming a power relation of superiority and inferiority. Its use directly impinges on the dignity of the one against which such is used. It further goes to the heart of re-affirming the view that some people are viewed as lesser human beings than others based on what is perceived to be racial composition. Twenty years into our democracy, it is damning that such attitudes still exist. Whilst we have a progressive constitution and our laws would speak to that of equality, the law and the constitution on its own does not ensure transformation in the absence of attitudinal change of individuals. The Applicant occupied a leadership position as a Deputy Principal. He is expected to lead by example and more so imbibe the spirit of what the South African Constitution intended. To transgress in the manner in which he did, must be viewed with the seriousness that it deserves and cannot be treated lightly. Dismissal would be appropriate in the circumstance.
6. Ruling
1) The dismissal of the Applicant is both procedurally and substantively fair.
2) The matter is accordingly dismissed.
3) There is no order as to costs
Signed and dated on this the 14 day of December 2016
Ravi Naidoo
ELRC Commissioner
Province: Gauteng
Applicant: Marinus De Beer
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Misconduct
Award Date: 16 January 2017
Arbitrator: Ravi Naidoo
Commissioner: Ravi Naidoo
Case No: PSES223-16/17GP
Date of Ruling: 16 January 2017
IN THE MATTER BETWEEN:
Marinus De Beer Union / Applicant / Employee party
And
Gauteng Department of Education Respondent / Employer party
Union/Employee’s representative: H Luus (attorney)
Union/Employee’s address:
Telephone:
082 788 2949
Fax:
086 677 0785
Employer’s representative:
M Tshitshiba
Employer’s Address:
Telephone:
011 355 0461
Fax:
011 355 0446/ 086 559 4295
1.Details of hearing and representation:
The arbitration hearing commenced 22 September 2016. A ruling was made permitting legal representation in this matter. The Applicant was represented by H Luus, an attorney. The Respondent was represented by M Tshitshiba, an official working in the Labour Relations Department of the Respondent. The matter remained part heard on 22 September 2016 and reconvened on 25 October 2016 and was still part heard. The matter was finalised on 25 November 2016. Parties were requested to file their closing arguments by 02 December 2016.
2.Issue to be decided:
1) Whether the dismissal of the Applicant was procedurally and substantively fair.
2) The Applicant raised the following procedural issues:
No Investigation was conducted in terms of Schedule 8 item (4)
Unreasonable time lapse from the alleged incident and the Applicant being brought to a disciplinary enquiry.
3) In terms of substance the Applicant denied both charges (charges 1 & 3 as per the charge sheet) in its entirety.
3.Background to the issues:
1) The Applicant was employed as a Deputy Principal at Laerskool Krugersdorp Noord at the time of his dismissal. The Applicant had 24 years and 7 months service with the Respondent at the date of his dismissal and earned R33 708-50 per month. The Applicant was dismissed for alleged misconduct and sought retrospective reinstatement as a remedy.
4. Survey of the evidence and argument:
4.1 Respondent’s Evidence
4.1.1 Witness 1: Musa Dlamini testified as follows:
1) The Witness is the Labour Relations Officer for the Department of Education and is responsible for investigating and initiating on matters referred to the District Office.
2) Laerskool Krugersdorp Noord is one of the schools that falls within the witness’s jurisdiction.
3) The witness interviewed Mr Molebatsi and Molebatsi indicated to him that the Applicant had called him a “kaffir” and told him the he “bliksems baie hard”. Molebatsi reported that the incident had occurred in the storeroom.
4) The witness did not interview the Principal, as he was not present when the incident occurred. Due to the seriousness of the matter, the Principal did not have the authority to deal with the matter.
5) The witness also interviewed the IDSO, Ms Khashane. She reported that Molebatsi had approached her and complained at the District Office about the alleged incident. She indicated that the complaint was raised on the day that the incident occurred.
6) After investigating the incident, the witness recommended that the Applicant be charged for misconduct.
7) When the witness went to give the Applicant the audi letter, the Applicant indicated to the witness that it would be Molebatsi’s word against his. The audi letter was given to afford the Applicant an opportunity to respond to the allegations.
8) The Applicant did respond to the allegations in writing (Page9 of Applicants Bundle). The witness gave consideration to the response and was not convinced by the Applicant’s submission.
9) The investigation into the alleged incident took place in April 2015. The matter was referred to the witness’s office on 7 April 2015. The witness could not confirm the exact date when Molebatsi lodged the complaint.
10) The charges are not drafted at District level. Such is done at the Provincial Head Office.
11) The Applicant would have received the notice to attend the disciplinary enquiry at least 10 days prior to the scheduled date. On the first date that was scheduled for the hearing, the presiding officer was unable to avail himself. There was a second postponement when the presiding officer, Adv Mkabela, entertained a request from the Applicant’s representative to utilise a witness from the employer. The presiding officer wanted an opportunity to explore the case law regarding the aforementioned.
4.1.2 Cross Examination
1) The witness went to the school where the Applicant was based in order to investigate the matter. The investigation was carried out over a few days.
2) The witness interviewed Molebatsi for approximately 2-3 hours. He interviewed Willie Guthree (Molebatsi’s supervisor) and also interviewed the IDSO, Ms Khashane for about an hour. Guthree was never presented as a witness at the disciplinary enquiry.
3) The witness indicated that he did not approach Cynthia Lubelo as part of his investigation because Lubelo indicated to him that she occupied an SGB post and if she participated in the hearing she would place her job in jeopardy.
4.1.3 Re-Examination
1) No questions asked in re-examination
4.1.4 Witness 2: Mercy Khashane testified as follows
1) The witness is an IDSO (Institutional Development Support Official) for the Respondent.
2) The witness is familiar with the Applicant as he was a Deputy Principal at the school in question.
3) Mr Molebatsi was a general worker employed at the school.
4) Molebatsi approached the witness in March 2015 and complained that the Applicant had called him a “Kaffir” and said that he was going to “bliksem him hard”
5) The witness could not attest to the exact date when Molebatsi came to complain to her. The witness advised Molebatsi to refer a complaint to the District Director.
6) The complaint must have been filed because the witness was interviewed by an official from the District Labour Relations Department.
7) The witness was told that the Applicant had been dismissed.
8) The Applicant is currently working at the same school as an SGB employee. The Department is currently investigating this.
4.1.5 Cross Examination
1) The witness had no contact with the Principal regarding this matter.
2) The witness confirmed that the incident occurred in March 2015. The witness assumed that the incident occurred on the same day that the Applicant had complained to her, due to the Applicant’s expression. It was put to the witness that the incident did not occur on the day which the Applicant complained.
3) The witness could recall that there was a conversation with the Applicant where the Applicant complained about the allegations. The witness expressed her disappointment to the Applicant concerning the allegations.
4) It was put to the witness that the incident occurred on 11 March 2011 and that Molebatsi only approached the District Office on 27 March 2105. The witness was unable to recall any timeframes.
5) Dlamini did have a discussion with the witness regarding the incident. The discussion lasted for less than an hour.
4.1.6 Re-Examination
1) After the alleged incident Molebatsi later applied for leave.
4.1.7 Witness 3: David Molebatsi testified as follows:
1) In 2015 the witness was employed at Laerskool Krugersdorp as a general worker.
2) The incident between the witness and the Applicant took place in the storeroom. The Applicant had entered the storeroom and asked the witness what job he was busy doing. The witness indicated that he was busy fixing a table for one of the educators. The Applicant began kicking things and said to the witness that he should not be doing that job. The Applicant then called the witness a “Kaffir” and said to the witness that he would “moer him very hard”.
3) The witness indicated that after the incident he went to the office of the Principal to report the incident, but the Principal was not present. The Applicant could not report to the Deputy Principal, because the Applicant was the Deputy Principal. The witness then decided to approach the District Office and approached Ms Khashane.
4) The witness indicated that he applied for leave after the incident occurred.
4.1.8 Cross Examination
1) The witness indicated that he made a verbal report to Ms Khashane about the incident. Khashane advised the witness to file a complaint. The witness filed a written complaint with the District Office.
2) The witness indicated that he wrote the letter on the same day of the incident and submitted it the following day.
3) The incident occurred on 19 March 2015. The witness remembered that date because when he arrived at home he marked it on his calendar.
4) The witness made a statement to Musa Dlamini. Dlamini wrote down the submission. The witness could not recall for how long Dlamini had interviewed him, but it did take some time.
5) Because the Principal was not present, the witness approached the Applicant to apply for leave. Leave had to be applied for in advance.
6) The witness requested leave from the Applicant and the Applicant refused to give him the leave forms to make the application. The witness indicated that he did not put the date on the leave forms, all he did was to sign the leave forms. Whomever dealt with the leave forms put in the dates.
7) It was put to the witness that his leave application was denied by the Applicant, however the witness still proceeded to take the leave in April 2015. The witness denied this.
8) The witness indicated that he did previously submit leave forms prior to going on leave.
9) The witness confirmed that on the day of the alleged incident, the Applicant did request Cynthia Lubelo to leave the storeroom.
10) It was put to the witness that the Applicant had given him work 2 months prior, to make signage for the parents day and the witness failed to do the work. The witness disagreed that he was given such instruction 2 months prior and indicated that he was only given two days to complete the signage on the doors.
11) It was put to the witness that when the Applicant walked into the storeroom, he was not even busy with the task given to him by the Applicant, but was busy with another task.
12) The witness confirmed that the Applicant called him a “Kaffir” and threatened him.
13) The witness indicated that his child wrote the letter of complaint on his behalf.
14) The witness was then asked “why he was feeling threatened by the words of the Applicant “Can Moer baie hard”. The witness indicated that in all the time that he had been employed, no one had ever approached him in that manner and that induced fear in him. The witness indicated that he could not read the Applicants mind and would not know whether the Applicant would carry out such a threat immediately or sometime in the future.
15) Cynthia Lubelo was afraid to testify because she felt that she might lose her job as she was employed by the SGB.
16) Cynthia had left the storeroom completely. It was put to the witness that Cynthia had confronted him and told him that the Applicant did not use the word “Kaffir”. The witness denied that Cynthia had ever approached him in this regard.
17) The witness indicated that he had a good relationship with Cynthia, even to date.
18) The witness indicated that he took a decision to report the matter at the District Office. There was no need to report it again to the Principal.
19) The witness denied that he stormed out of the office when the Applicant denied him leave. The witness indicated that when he was informed that he could not take leave, the Applicant was about to depart with the bus.
20) The witness indicated that he had a good relationship with Willie Guthree. Guthree had indicated to him that the forms were not available and that they would fill the leave forms in when the witness returned from leave. The witness could not recall the exact date, but indicated that it was towards the end of March 2015. The leave forms were only signed on the witness’s return from leave.
21) It was put to the witness that the Applicant denied calling him a “Kaffir”. The Applicant insisted that the Applicant did do so.
4.1.9 Re-Examination
1) No questions asked in re-examination
4.2 Applicant’s Evidence
4.2.1 The Applicant, Marinus De Beer testified as follows:
1) On 11 March 2015 the Applicant went into the workshop to check on the work which he requested Molebatsi to complete. He found Molebatsi fixing some desks.
2) The Applicant indicated that he had on several occasions asked Molebatsi to prepare name boards for the teachers and put same up for the parents day. Molebatsi failed to do so.
3) The Applicant queried why Molebatsi was fixing the table instead of completing the name boards.
4) Cynthia Lubelo was present when the witness entered the storeroom. He requested Cynthia to leave the workshop such that he could have a discussion with the Applicant in private.
5) Molebatsi had indicated to the Applicant that he would first complete fixing the table, which one of the female educators had asked him to do, and then he would complete the name boards. The Applicant told Molebatsi that there were other tables which the educator could utilise. Molebatsi refused to heed to the instruction.
6) The Applicant denied calling Molebatsi a “Kaffir”, neither did he threaten him by saying he “bliksems hard”.
7) The Applicant indicated that he then left the workshop and as he walked out he bumped into one of the tables that was on the ramp at the entrance and the table fell over. The Applicant indicated that he just continued walking after knocking the table over.
8) The following day the Applicant found that the name boards had been completed. For almost two months Molebatsi did not comply with the request to sort out the name boards for the educators.
9) On 25 March 2015 Molebatsi came to the Applicant’s office and requested to take leave. The Applicant indicated to Molebatsi that he was not rostered to take leave during that period as another staff member (Guthree) was already taking leave and that Molebatsi’s services were required. Molebatsi became angry and walked out of the Applicant’s office.
10) Molebatsi did not hand in any written request for leave on 25 march 2015. The Applicant then phoned Guthree and told him that he had declined Molebatsi’s request for leave and requested Guthree to accompany Molebatsi to his office to discuss the issue. Guthree returned the Applicant’s call and indicated that Molebatsi refused to discuss the matter.
11) Molebatsi then took leave without same being granted. He’s leave was considered unauthorised. Molebatsi did not report for duty for the entire month of April 2015.
12) On 27 March 2015, the Applicant received a phone call from Mercy Khashane who indicated to him that she was disappointed with the Applicant. The Applicant was taken aback. The Applicant had seen Khashane the previous day when he had submitted some documents for the SGB. The Applicant thought there was something untoward about the documentation. The Applicant was shocked when Khashane told him that Molebatsi had come to her office and alleged that the Applicant had called him a “Kaffir”. The Applicant said that he would immediately come and see Khashane to discuss the allegation. Khashane indicated to the Applicant that Molebatsi had already left and that she was not available to discuss the issue.
13) The Applicant was requested by Musa Dlamini to give a written statement regarding the alleged incident (P9-11 of the Applicant’s bundle).
14) Molebatsi came back to school at the beginning of May 2015. The Applicant did not have an opportunity to speak to Molebatsi, neither did the Applicant take any disciplinary action against Molebatsi because he feared that he would be accused of victimising Molebatsi.
15) The Applicant alleged that when he addressed Molebatsi on 11 March 2015, after Molebatsi had ignored him, the Applicant did raise his voice when he reiterated to Molebatsi what was required of him.
16) Molebatsi’s version was that the incident occurred on 19 March 2015 and he approached Khashane on 25 March 2015.
17) The Applicant indicated that he did not threaten Molebatsi. His words to him was that he would not go home until the work was completed.
18) In his 24 years of employment, prior to the charges being put to him, at no time was the Applicant ever dismissed or disciplined. The incident has tarnished the Applicant’s reputation and his son, who is a learner at the school, has also been negatively affected.
19) After the Applicant was dismissed by the GDE, the SGB took a decision to retain the Applicant’s services because they did not want to lose the Applicant’s services. When the SGB met to discuss the incident, the name of Cynthia Lubelo emerged and the Principal, Mr Muller, was tasked to interact with Lubelo regarding the incident.
4.2.2 Cross Examination
1) The Applicant was not present when Cynthia Lubelo was engaged by the Principal concerning the issue. The Applicant did not call Cynthia to testify on his behalf at the disciplinary enquiry.
2) Cynthia Lubelo is an SGB employee. The Applicant was not aware as to what the interaction was between Lubelo and the Principal. The applicant indicated that he only met with Lubelo on the previous day to discuss the incident.
3) The instruction to the Principal was to investigate whether Cynthia Lubelo knew more about the incident, because she was present prior to the alleged incident.
4) The SGB was sympathetic towards the Applicant being dismissed. The SGB felt that the matter still needed to be decided by the ELRC.
5) The Applicant had sight of Cynthia Lubelo’s statement at the previous sitting of the arbitration. It was put to the witness that Lubelo’s statement was never presented at the previous sitting of the arbitration. The Applicant indicated that his representative had provided him with the written statement. The Applicant’s representative had received the written statement from the Principal. Prior to reading the statement, the Applicant was verbally informed by the Principal of its contents.
6) The Applicant did not call Lubelo as a witness because he had told her to leave the workshop area.
7) Cynthia Lubelo was going to testify as a result of a meeting which took place between the Applicant, the Principal and the SGB. It was also as a result of the aforementioned meeting that Lubelo made a written statement.
8) It was put to the witness that it was the Principals responsibility to grant leave. The Applicant indicated that the responsibility was delegated to him to manage the leave. All leave forms are signed off by the Principal.
9) The Applicant asked Lubelo to leave after the Applicant asked Molebatsi what he was doing and Molebatsi indicating that he was busy fixing a table. When the Applicant realised that Molebatsi did not complete the work that he had requested (name boards), he asked Lubelo to leave. The Applicant raised his voice at Molebatsi because he was angry.
10) The Applicant was unable to explain why he did not take disciplinary action against Molebatsi for not following instructions and absenting himself without authority.
11) The Applicant was of the view that Molebatsi had concocted the story because he had denied him leave.
12) At the time when Molebatsi requested leave the alleged incident had already occurred. Only two days after the Applicant took issue with Molebatsi’s leave, did Molebatsi report the alleged incident to Khashane.
13) The Applicant was referred to Molebatsi’s leave form and indicated that it was probably the admin person who put the date on the product. According to the leave form, the Principal signed off the form on 5 May 2015, after Molebatsi had returned from leave.
14) The Applicant did not take disciplinary action against Molebatsi because by then he had already received a letter from Musa Dlamini regarding the alleged incident. No disciplinary action was taken against Molebatsi because it would come across as though the School was victimising Molebatsi.
15) The Applicant concurred that the allegations against him were serious.
4.2.3 Re-Examination
1) From mid-January to mid-February 2015, Molebatsi failed to complete the task that was given to him by the Applicant.
4.2.4 Witness2 : Cynthia Lubelo testified as follows:
1) The witness was seated in the storeroom with Molebatsi, when the Applicant entered. The Applicant requested the witness to leave the storeroom. The witness exited the storeroom and proceeded to sit outside where the tractor was.
2) Whilst seated outside the witness heard shouting and there was an exchange between the Applicant and Molebatsi in Afrikaans. The witness heard somebody bang the table and heard it break.
3) After the shouting subsided, the Applicant told the witness that she could go back into the storeroom.
4) The witness asked Molebatsi what had happened to the table because it was broken. Molebatsi indicated that the Applicant had broken the table.
5) The witness has a good relationship with Molebatsi.
6) The witness at no time had any contact with Musa Dlamini.
7) The witness is in a relationship with Molebatsi.
8) The witness indicated that when she was seated outside, she did not hear clearly and could not understand the conversation because it was in Afrikaans.
9) The witness had a discussion with Molebatsi after the incident and asked what had happened. Molebatsi indicated that the Applicant had requested him to fix the name boards and also the tables.
10) Molebatsi complained that he should have only been given one task.
11) The witness told Molebatsi that if this matter was going to be taken to Labour, she did not want to be involved. Molebatsi was angry and indicated that he could not be given a lot of work because he only had two hands.
4.2.5 Cross Examination
1) The witness is employed by the SGB on a permanent basis.
2) The witness indicated that it was possible that she did not remember everything that had transpired on the day.
3) The witness did not testify at the disciplinary enquiry because she did not hear the actual discussion between the Applicant and Molebatsi.
4) The witness indicated that from the tone the discussion between the Applicant and Molebatsi did not seem to be a friendly one.
4.2.6 Re-Examination
1) The witness expressed the opinion that that Molebatsi could have told her if he had been insulted, or he could have also told the witness if he was not insulted.
The closing arguments of the parties were noted
5. Analysis of evidence and argument :
1) The Applicant challenged both the procedural and substantive fairness of his dismissal.
2) In terms of procedure the Applicant alleged that there was no investigation carried out and this contravened compliance with Schedule 8 of the codes of good practice. The Applicant also alleged that there was an unreasonable time lapse from the alleged transgression to him being charged for same.
3) On the issue of the investigation, I fail to see any merit in the Applicant’s argument. Dlamini testified that he had investigated the matter by interviewing various witnesses and he also requested the Applicant to give a written statement, before he could take a decision to formally charge the Applicant for the alleged transgression. None of the aforementioned were placed in dispute. I therefore fail to find any merit in the Applicant’s submission that there was no investigation. If the Applicant for any reason is alluding that there should have been an investigative report, then such is also without merit as there is no prescription or compulsion in this regard.
4) On the issue of the alleged unreasonable delay in charging the Applicant and proceeding with the disciplinary action, I find such assertion also to be without any merit. Dlamini testified that he became aware of the matter at the beginning of April 2015. If we were to even accept the Applicant’s version that the interaction with Molebatsi took place on 11 March 2015 and that Molebatsi had reported the matter on 27 March 2015, then I can find no time delay in the investigation commencing in April 2015. According to the disciplinary notice, it would seem that the charges were put to the Applicant on or about 3 August 2015. Whilst there is a time delay of approximately 3 to 4 months from the investigation commencing to the Applicant being charged, there is no evidence presented to suggest that the Applicant suffered any prejudice during this period. The Applicant still remained gainfully employed and was not prejudiced in anyway in terms of the payment of his salary.
5) Given the aforementioned, the dismissal of the Applicant is procedurally fair.
6) On the issue of the substantive fairness, the Applicant faced and was dismissed for the following allegations:
Allegation 1 on the charge sheet
“It is alleged that in or around March 2015 you conducted yourself in an improper, disgraceful or unacceptable manner in that you called Mr D Molebatsi, a General assistant at Laerskool Krugersdorp Noord a “Kaffir”.
Allegation 3 on the charge sheet
“ It is alleged that in or around March 2015 you intimidated and/or victimised Mr D Molebatsi, a General Assistant at Laerskool Krugersdorp Noord, in that you told him that you bliksem baied hard”.
7) The Applicant denied the aforementioned allegations in its entirety.
8) From the testimony of both the Applicant and Molebatsi we know that it is common cause that it was only the Applicant and Molebatsi present in the store room when the alleged incident occurred. We also know from the Applicants own submission that he did become angry and did raise his voice at Molebatsi. This was also confirmed by Cynthia Lubelo, whom the Applicant had requested to excuse herself from the store room, but who was seated outside and testified that she could hear that the Applicant and Molebatsi engaged in an argument, but could not exactly understand or possibly hear what was being said as the two spoke in Afrikaans.
9) It was Molebatsi’s submission that the Applicant called him a “Kaffir”. The Applicant denied this and indicated in his defence that the possible reason for Molebatsi concocting such a story was because the Applicant had denied him leave. Molebatsi denied the aforementioned and indicated that it is correct that he only signed the leave forms when he returned from leave, because Guthree, his supervisor, had indicated to him that there were no leave forms available and that they would fill same on the Applicant’s return. The Applicant further stated that he did not fill in the form in its entirety and only merely signed same. This was evident when the form was perused during the arbitration.
10) There was disagreement about the date on which the verbal altercation had taken place between the Applicant and Molebatsi. The Applicant alleged that such occurred on 11 March 2015, whilst the Molebatsi indicated that the incident occurred on 19 March 2015. Molebatsi insisted that it was the 19 March 2015 and the reason he cited that he remembered same was because he had marked off the date on his calendar at home on the day of the incident. He also indicated that he sought the assistance of his child to put the complaint in writing. The Applicant’s insistence and importance surrounding the date was the submission that if the incident occurred on 11 March 2015, why did it take the Applicant so long (until 27 March 2015) to approach the District Office with the complaint. This in the Applicant’s view supported his contention that the only reason that Molebatsi had allegedly concocted such a story was because the Applicant had denied him leave when Molebatsi approached him on 25 March 2015. It is not disputed that Molebatsi had approached the IDSO, Mercy Khashane, with the complaint. Khashane was unable to recall the exact date on which this happened. One then would interestingly then look at the testimony of the Respondent’s witness Cynthia Lubelo. Lubelo testified, and it was not disputed, that after the verbal altercation between the Applicant and Molebatsi, she went back into the storeroom and found Molebatsi visibly upset. She also testified that while she was seated outside she heard a table break and when she entered the storeroom she found the table had been broken and asked what had happened, only to be told by Molebatsi that the Applicant had broken the table. It would be highly improbable that it was Molebatsi who could have broken the table, because he was busy putting effort into fixing the table. We know from both the Applicant’s testimony and Molebatsi’s testimony that the Applicant was upset that Molebatsi was fixing the table instead of performing the task that the Applicant had assigned to him and that this had angered the Applicant. It is therefore more probable that the Applicant had broken the table. If it was Molebatsi that had broken the table (which according to Lubelo occurred during the verbal altercation, because she heard the sound of the table breaking and shortly thereafter physically witnessed the broken table), then surely the Applicant would have mentioned that Molebatsi had become angry and broken the table. The only submission by the Applicant was that he, on his way out knocked down a table which was on the ramp at the entrance to the workshop. Whilst one might think that I am digressing to a charge on which the Applicant was found not guilty at the disciplinary enquiry, this is not the intention, but rather looking at the incident in its entirety in context, given the nature of the evidence, the finding in this matter hinges on who’s version (between Molebatsi and the Applicant) is more probable and truthful. This would go to the credibility of both the Applicant and Molebatsi in their submission. Given the aforementioned it becomes more probable that the Applicant in his submission had tried to water down the extent of his anger and the pursuant action that accompanied same. To merely state that he knocked down a table on his way out seems highly improbable, given the testimony of Lubelo. One would therefore question why the Applicant omitted such an important detail in his submission. The only logical conclusion that one could reach in this regard is that the Applicant was concealing the extent of his actions.
11) This brings us to the question as to the probability that existed as to whether the Applicant could have called Molebatsi a “Kaffir”. It is interesting to note that in the cross examination of Molebatsi, a version was put to Molebatsi that after the alleged altercation, Lubelo had confronted him and indicated to him that the Applicant had not called him a “Kaffir”. Molebatsi denied that this was the case. What is of interest is that this testimony was never led by Lubelo herself in evidence in chief, as the witness for the Applicant. If this version was true (and it would have been absolutely critical in the Applicant’s defence), surely such question would have been put to Lubelo by the Applicant or his legal representative. Instead the Applicant steered clear of such. One could only begin to question the veracity of such a version, put to Molebatsi by the Applicant, since it was the express testimony of Lubelo that she did not hear or understand the conversation between the Applicant and Molebatsi because she was outside and the conversation was in Afrikaans. What she could hear was that the Applicant and Molebatsi had raised their voices and from this she deduced that it was not a friendly conversation. Thus Lubelo could not have possibly have confronted Molebatsi and said to him that the Applicant had not used the word “Kaffir”. It would seem that the Applicant utilised any opportunity to divert from what was possibly the probable version (that the Applicant did make use of the word “Kaffir” when addressing Molebatsi) and put a fabricated version for Molebatsi to respond to. This goes directly to the credibility of the version put forward by the Applicant.
12) Furthermore, Lubelo testified that when she entered the store room after the verbal altercation between the Applicant and Molebatsi and after she had questioned Molebatsi about what had transpired, she indicated to Molebatsi that if the matter was to go to “Labour”, she did not want to be involved. This submission went unchallenged. If this be the case, then it would seem that on the day in question there was already some discussion between Molebatsi and Lubelo regarding a possible labour issue resulting from the altercation and Lubelo had indicated that she wanted nothing to do with it. If this be the case, then it is highly unlikely that Molebatsi could have only thought about filing a complaint after the Applicant had allegedly denied him leave. The thought of a labour issue, according to Lubelo’s testimony, had already occurred on the day of the incident. I have no reason to doubt the submissions made by Lubelo as she was consistent in her testimony. Furthermore, as attested to, she was in a relationship with Molebatsi and yet she agreed to testify on behalf of the Applicant. Lubelo could have easily fabricated a story in favour of Molebatsi, but she did not. Lubelo presented herself as an honest and credible witness. It must also further be noted that Lubelo did not testify at the Applicant’s disciplinary enquiry, because it was the Applicant’s submission that Lubelo was outside when the incident occurred and according to the Applicant could not have possibly added value to his case. Lubelo’s willingness to testify was as a result of the intervention of the Principal and the SGB. Only after the Principal and the SGB had called Lubelo to a meeting, did she agree to testify.
13) Another interesting submission made to Molebatsi in cross examination by the Applicant’s legal representative was the issue dealing with the allegation that the Applicant had threatened Molebatsi by saying he “Can Moer baie hard”. Molebatsi was asked why he would feel threatened by such words. Implicit in such an approach is that the Applicant is not denying that he had uttered same, but that such was not considered to be threatening. Given the aforementioned then, it is interesting to note that the Applicant in defining the parameters of the arbitration indicated that in terms of substance, he denied the allegations in its entirety implying that he did not make such utterances. This once again goes to the credibility of the Applicant’s version that he merely only raised his voice at Molebatsi.
14) Taking the events in its entirety into account, it was the Applicant’s submission that Molebatsi had misconducted himself by firstly failing to follow a direct instruction that was given to him almost two months prior to the verbal altercation with the Applicant, and secondly by absenting himself without authority from work for a period of a month. The aforementioned is a serious transgression for which Molebatsi certainly could be successfully disciplined if such was true. The Applicant’s submission was that Molebatsi was not disciplined because the School was afraid that it would be perceived as though the Molebatsi was being victimised. This submission by the Applicant lacks all reasonableness. One is expected to act with consistency when employees transgress in anyway. Why then was there a need to afford any special treatment to Molebatsi and why should there be any fear by the Applicant to discipline Molebatsi, given that the Applicant was confident that he had not wronged Molebatsi in anyway by using derogatory and threatening language towards him. The Applicant’s own statement on the incident was tabled as evidence in the bundle of documents and referred to. If one reads the Applicant’s statement to the Respondent, the Applicant clearly outlines his extensive experience as an educator, but more importantly makes mention of working for period of 16 years at a multi-cultural school and outlines his interaction at what he insinuates to be at a either at a multi-cultural or non-racial level. If this be the case, then neither the Applicant nor the Principal (who was responsible for signing Molebatsi’s leave form dated 5 May 2015 indicating that the leave was unauthorised) should have had any hesitation in disciplining Molebatsi for such a serious transgression. In certain circumstance taking such prolonged (1 month) of unauthorised leave could amount to a dismissible offence. Yet no action was taken against Molebatsi, because according to the Applicant, caution was being exercised against being seen as victimising Molebatsi. This makes absolutely no sense at all. Unless of course great caution was being exercised because the Applicant was fully aware of his derogatory utterances and the seriousness thereof. It is clear from the actions of the SGB and the Principal, that they have clearly put their weight behind the Applicant, to the extent that they re-employed the Applicant in an SGB post after he was dismissed by the Respondent. This is also evident in the Principal and the SGB intervening in getting Cynthia Lubelo to testify on the Applicant’s behalf.
15) Having due regard for all the aforementioned evidence the scales of probability leans towards confirming that the Applicant had made the derogatory utterances as alluded to by Molebatsi. Molebatsi was consistent in his responses and at no time came across as though he had concocted a version. Furthermore, even if one were to accept the Applicants version that leave was not granted to Molebatsi, there is no evidence to suggest that Molebatsi concocted a story on 27 March 2015 to leverage the Applicant for leave or to spite the Applicant in any way, given that if the leave was unauthorised as per the Applicant’s version, Molebatsi had placed himself at risk. Molebatsi would not have had any way of knowing that because of his allegations against the Applicant that neither the Applicant nor the Principal would not take disciplinary action against him because they were exercising caution, even though Molebatsi had allegedly misconducted himself in a serious light.
16) In the matter South African Revenue Services (SARS) v CCMA and Others, specific reference was made to the use of the word “Kaffir” and great detail was spent in highlighting the historical context of the use of such a word. In a nutshell the use of the word “Kaffir” cannot be dismissed as merely a linguistically derogatory term. Its use is steeped in a historical undertone of being oppressive, degrading, insulting and more so affirming a power relation of superiority and inferiority. Its use directly impinges on the dignity of the one against which such is used. It further goes to the heart of re-affirming the view that some people are viewed as lesser human beings than others based on what is perceived to be racial composition. Twenty years into our democracy, it is damning that such attitudes still exist. Whilst we have a progressive constitution and our laws would speak to that of equality, the law and the constitution on its own does not ensure transformation in the absence of attitudinal change of individuals. The Applicant occupied a leadership position as a Deputy Principal. He is expected to lead by example and more so imbibe the spirit of what the South African Constitution intended. To transgress in the manner in which he did, must be viewed with the seriousness that it deserves and cannot be treated lightly. Dismissal would be appropriate in the circumstance.
6. Ruling
1) The dismissal of the Applicant is both procedurally and substantively fair.
2) The matter is accordingly dismissed.
3) There is no order as to costs
Signed and dated on this the 14 day of December 2016
Ravi Naidoo
ELRC Commissioner