PSES127-16/17FS
PSES127-16/17FS
Award Date:
28 April 2017
Case Number: PSES127-16/17FS
Province: Free State
Applicant: SADTU obo Malale, Tshepo
Respondent: Department of Education Free State
Issue: Unfair Dismissal - Misconduct
Venue: Department of Education Free State District Office
Award Date: 28 April 2017
Arbitrator: Eva Ngobeni
Commissioner: Eva Ngobeni
Case No: PSES127-16/17FS
Date of Award: 28 April 2017
In the Dispute between:
SADTU obo Malale, Tshepo
(Applicant)
And
Department of Education (Free State)
(Respondent)
Union / Applicant’s representative: Frank Maloka (SADTU official)
E-mail: sizolwethu@webmail.co.za
Fax:
Contact number: 078 724 098
Respondent’s representative: T. Ntsuke
E-mail: Hlompangts@gmail.com
Fax: 086 604 1462
Contact number: 073 303 3879
DETAILS OF HEARING AND REPRESENTATION
1. This matter was heard for arbitration on 30 January and 03 April 2017, 10h00 at the premises of Department of Education Free State District Office.
2. Both parties were in attendance and representation from all parties is as indicated above. The respondent submitted a bundle of documents marked ‘A’ and video footage in support of its case. There was no bundle of documents by or on behalf of the applicant. The proceedings were electronically recorded and notes were also taken. Both parties agreed to submit written closing arguments, the applicant filed arguments on 10 April yet the respondent’s arguments were filed on 11 April 2017
BACKGROUND OF THE DISPUTE
3. The applicant was appointed as a Level 1 teacher at Letsete Secondary School from 19 January 1998. At the time of termination, the applicant earned R15 000-00 per month. The applicant was dismissed for allegations of misconduct in that he threatened to blow the principal’s head during an altercation. He was dismissed on 30 January 2015, and subsequently filed an appeal whereupon his dismissal was upheld.
4. Subsequent to his dismissal, the applicant filed an unfair dismissal dispute with the Council. The matter remained unresolved at conciliation and the applicant referred the matter for arbitration hence these proceedings. The applicant sought reinstatement as a remedy.
ISSUE FOR DETERMINATION
5. I must determine whether the applicant’s dismissal was substantively fair. If unfair, I must determine the appropriate remedy.
SURVEY OF EVIDENCE AND ARGUMENTS
RESPONDENT’S EVIDENCE
A summary of the respondent’s submissions is as follows:
6. Thabo Mojanaga testified as follows: He is employed as a principal for two (2) years. After the morning brief on 07 November 2014, he found the applicant at the clerical office. He questioned him on why he was at the office and requested that he (applicant) leave the office. The applicant refused to leave the office and indicated that he need to use a telephone. He refused the applicant permission to use the phone. He went to pick the phone and the applicant wrestled the phone out of his hands. He then unplugged the phone from the power point. The applicant invited him outside. Subsequently, he (applicant) stated that he will blow his head off. This the applicant repeated twice. He was overcome with fear, he phoned his supervisor and later opened a criminal case. After he had left the applicant in the admin office, he (applicant) tried to obstruct him and someone came in between them
7. At the time the applicant uttered those words he realized that the applicant was serious because he had previously assaulted a principal. He stated that prior to the incident, he and the applicant had a cordial relationship like any other person. He argued that the applicant forcefully took the phone out of his hands. He can no longer work with the applicant given the applicant’s record history. He (Mojanaga) is in charge of discipline at the school and the applicant undermined his authority. Subsequent to the altercation, the applicant left the workplace without authorization. He conceded that the applicant uttered the words during at the time they were wrestling over the phone. He argued that every other member of staff was at the admin office after authorization was sought.
8. Emmanuel Ratsieng testified as follows: On 07 November 2014, he was called by Ms Nabe that there was a scuffle between the applicant and the principal. The issue was about the principal refusing the applicant permission to phone. He asked the principal to leave the office and escorted the applicant outside. He submitted that permission is to be sought when a teacher wants to use the admin office facility. When asked whether there was a formal communique requiring each staff member to seek permission, he responded to state that the principal may have assumed that everyone is aware of the requirement to seek permission to use the facility. He conceded under cross-examination that there was a verbal exchange between the applicant and the principal hence he was called to intervene. He argued that it was not procedural for one to leave a class unattended.
9. Jerry Ntonyane testified as follows: On day of the incident, the principal found the applicant at the admin office. The principal explained to the applicant that he was not allowed to enter the admin office. Thereafter, the applicant stated to the principal that he will blow his head off. He argued under cross-examiination that when the argument ensue he tried to buffer between the applicant and the principal. He realized that he could not manage the situation, he then went to call Ratsieng. He argued that the principal never stated that the applicant was a thug of a teacher. The applicant was the one to have stated that he will blow the principal’s head off.
10. He argued that HOD are allowed to enter the admin office but teachers are required to seek permission. He does not know whether the applicant sought permission from Ms. Mafokane but she also enquired on how the applicant got there. Ms Mthikhulu and Nabe were Acting HOD at the time of the incident. The applicant uttered those words at the time of an altercation between him and the principal. Both the applicant and the principal were very loud.
APPLICANT’S ARGUMENTS
Malale TS
A summary of the applicant’s submissions is as follows:
11. He went to make a phone call at the admin office after he was granted permission by Ms Fokane. He was also not made aware of any restrictions to seek permission prior to accessing the admin office. There is a security door, and he can only gain entry if its opened. There were more than six educators inside the office. As he was trying to make a phone call, the principal enquired with him on what he was doing. He informed the principal that he was there to make a call to enquire about the natural science paper. On attempting to dial the number, the principal grabbed the phone from his hands. He (principal) further stated that he cannot allow him to assist him run the school as he has done with the previous principal because he is a thug of a teacher. At that very moment tempers were very high between them. He responded to the principal that if he has a problem with him they can go outside and exchange blows.
12. He argued to have not uttered the words that he will blow the principal’s head although he was humiliated and provoked. He does not understand how the applicant came to the conclusion that he wanted to kill him. The actual words which were uttered are not placed on the charge sheet. The principal could have allowed him to phone and charge him for defiance. He argued to have only stated that they can go outside and exchange blows. Moditle was also at the office and was never chased away. It was not stated why Moditle was at the office. After he was separated from the principal he went outside to sit with other colleagues. He argued to have not left the premises.
13. He argued under cross-examination that Ntonyane was in the same office throughout the entire period but never heard what the principal stated to him. He argued to have not threatened the principal but indicated that they can go outside to exchange blows. He uttered those words at the time tempers were very high. The principal stated that he has been in prison and described him as a thug. He conceded that it is 2nd time that he was charged and fined for assault against a principal.
ANALYSIS OF EVIDENCE AND ARGUMENT
14. Section 192 (1) of the Labour Relations Act stipulates that “In any proceedings concerning a dismissal, the employee must establish the existence of the dismissal”. Dismissal is not in dispute. Therefore, the onus to prove the fairness of the dismissal rests with the respondent. In doing so, Section 188 (1) of the Act requires the employer to prove:
(i) that the employee was dismissed for a fair reason relating to the employee’s conduct or capacity; or based on the employer’s operational requirement, and
(ii) that the employee’s dismissal was done in accordance with a fair procedure.
15. It is common cause that there was an altercation, then a wrestle between the applicant and the principal on 07 November 2014. The principal argued that there was a rule at the school restricting the applicant from gaining entry to admin offices without permission from the HOD. This version was corroborated by Jerry Ntonyane. The applicant on the other hand conceded to this by putting a version to the respondent’s witness (Ntonyane) that permission was sought from Ms Fokane. The respondent’s witness, Ntonyane, argued that Ms Fokane also questioned the applicant’s presence within the office. Mr. Ratsieng could not agree nor disagree that there was a rule in place requiring that permission be sought. However, he argued that all employees knows what was required of them pertaining to accessing the admin office. Therefore, I accept the version that the applicant was reasonably aware that he was to seek permission prior to gaining entry into the admin office. The applicant failed to do so.
16. It was not in dispute that the applicant was instructed to leave the office and told not to make a phone call. However, the applicant defied such instruction and picked the handset with the intention to make a call. Video footage reflects that following the applicant’s act, the principal grabbed the phone from the applicant’s hands. He (principal) then placed his hands with the handset on his back. The applicant wrestled the phone out of him (principal). The principal proceeded to unplug the phone from the wall. At a particular point in time the applicant and the principal were in very close proximity, herein referred to as being ‘eye ball to eye ball’. The principal, Ntonyane and the applicant submitted that during this unpleasant wrestle the applicant uttered the words.
17. There is a dispute of fact on what were the words uttered by the applicant. The applicant stated that he told the principal that they can go outside to exchange blows. The respondent stated that the applicant stated that he will blow the principal head. The evidence of Ntonyane cannot be relied upon given that he had a selective memory insofar as who said what and when. Ntonyane could only remember words spoken by the applicant. When assessing the submissions of the applicant and the principal. The version of the principal seem more probable than that of the applicant. It is also evident from the footage that the applicant was more agitated as compared to the principal during the altercation. Moreover, the applicant looked much more forceful upon the principal and may have uttered any words to intimidate the principal. I accept the respondent’s version that the applicant uttered the words and in so doing threatened the principal.
18. The applicant argued to have been provoked to act in the manner he acted. Oxford dictionary defines provocation to imply ‘action or speech that make one angry, especially deliberately’. It is clear from the submissions of both parties that the applicant was instructed to leave the office and not use the telephone. However, he defied the instruction issued by the principal. And in response thereto, the principal went to take the phone from his hands. Having considered the applicant’s argument, I am led to believe that the applicant is the one that provoked the principal. After the 1st engagement with the principal, the applicant had much time to reflect on the instruction and then reacted to it. He was instructed to leave the office and not making a phone call. Even at the initial encounter with the principal, it resembles the applicant throwing his hands all around whilst talking continuously. This reflects that the applicant had much to say as compared to the principal. And all this happened in front of other staff members.
19. In determining fairness, the court noted In Sidumo and another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC); [2007] 12 BLLR 1097 (CC) In terms of the LRA a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all the relevant factors and circumstances.
20. When assessing the applicant’s conduct in totality, I find that the applicant’s conduct did breach the trust relationship between himself and the Department. Therefore this conduct warrants termination. In so saying, I find that the respondent discharged the onus on balance of probability that the dismissal of the applicant was substantively fair.
21. I order as follows:
AWARD
22. The dismissal of the applicant is upheld.
23. This application is dismissed.
24. I make no order as to costs.
Thus done and signed in Pretoria on 28 April 2017
ELRC Panellist
Evah T. Ngobeni
Province: Free State
Applicant: SADTU obo Malale, Tshepo
Respondent: Department of Education Free State
Issue: Unfair Dismissal - Misconduct
Venue: Department of Education Free State District Office
Award Date: 28 April 2017
Arbitrator: Eva Ngobeni
Commissioner: Eva Ngobeni
Case No: PSES127-16/17FS
Date of Award: 28 April 2017
In the Dispute between:
SADTU obo Malale, Tshepo
(Applicant)
And
Department of Education (Free State)
(Respondent)
Union / Applicant’s representative: Frank Maloka (SADTU official)
E-mail: sizolwethu@webmail.co.za
Fax:
Contact number: 078 724 098
Respondent’s representative: T. Ntsuke
E-mail: Hlompangts@gmail.com
Fax: 086 604 1462
Contact number: 073 303 3879
DETAILS OF HEARING AND REPRESENTATION
1. This matter was heard for arbitration on 30 January and 03 April 2017, 10h00 at the premises of Department of Education Free State District Office.
2. Both parties were in attendance and representation from all parties is as indicated above. The respondent submitted a bundle of documents marked ‘A’ and video footage in support of its case. There was no bundle of documents by or on behalf of the applicant. The proceedings were electronically recorded and notes were also taken. Both parties agreed to submit written closing arguments, the applicant filed arguments on 10 April yet the respondent’s arguments were filed on 11 April 2017
BACKGROUND OF THE DISPUTE
3. The applicant was appointed as a Level 1 teacher at Letsete Secondary School from 19 January 1998. At the time of termination, the applicant earned R15 000-00 per month. The applicant was dismissed for allegations of misconduct in that he threatened to blow the principal’s head during an altercation. He was dismissed on 30 January 2015, and subsequently filed an appeal whereupon his dismissal was upheld.
4. Subsequent to his dismissal, the applicant filed an unfair dismissal dispute with the Council. The matter remained unresolved at conciliation and the applicant referred the matter for arbitration hence these proceedings. The applicant sought reinstatement as a remedy.
ISSUE FOR DETERMINATION
5. I must determine whether the applicant’s dismissal was substantively fair. If unfair, I must determine the appropriate remedy.
SURVEY OF EVIDENCE AND ARGUMENTS
RESPONDENT’S EVIDENCE
A summary of the respondent’s submissions is as follows:
6. Thabo Mojanaga testified as follows: He is employed as a principal for two (2) years. After the morning brief on 07 November 2014, he found the applicant at the clerical office. He questioned him on why he was at the office and requested that he (applicant) leave the office. The applicant refused to leave the office and indicated that he need to use a telephone. He refused the applicant permission to use the phone. He went to pick the phone and the applicant wrestled the phone out of his hands. He then unplugged the phone from the power point. The applicant invited him outside. Subsequently, he (applicant) stated that he will blow his head off. This the applicant repeated twice. He was overcome with fear, he phoned his supervisor and later opened a criminal case. After he had left the applicant in the admin office, he (applicant) tried to obstruct him and someone came in between them
7. At the time the applicant uttered those words he realized that the applicant was serious because he had previously assaulted a principal. He stated that prior to the incident, he and the applicant had a cordial relationship like any other person. He argued that the applicant forcefully took the phone out of his hands. He can no longer work with the applicant given the applicant’s record history. He (Mojanaga) is in charge of discipline at the school and the applicant undermined his authority. Subsequent to the altercation, the applicant left the workplace without authorization. He conceded that the applicant uttered the words during at the time they were wrestling over the phone. He argued that every other member of staff was at the admin office after authorization was sought.
8. Emmanuel Ratsieng testified as follows: On 07 November 2014, he was called by Ms Nabe that there was a scuffle between the applicant and the principal. The issue was about the principal refusing the applicant permission to phone. He asked the principal to leave the office and escorted the applicant outside. He submitted that permission is to be sought when a teacher wants to use the admin office facility. When asked whether there was a formal communique requiring each staff member to seek permission, he responded to state that the principal may have assumed that everyone is aware of the requirement to seek permission to use the facility. He conceded under cross-examination that there was a verbal exchange between the applicant and the principal hence he was called to intervene. He argued that it was not procedural for one to leave a class unattended.
9. Jerry Ntonyane testified as follows: On day of the incident, the principal found the applicant at the admin office. The principal explained to the applicant that he was not allowed to enter the admin office. Thereafter, the applicant stated to the principal that he will blow his head off. He argued under cross-examiination that when the argument ensue he tried to buffer between the applicant and the principal. He realized that he could not manage the situation, he then went to call Ratsieng. He argued that the principal never stated that the applicant was a thug of a teacher. The applicant was the one to have stated that he will blow the principal’s head off.
10. He argued that HOD are allowed to enter the admin office but teachers are required to seek permission. He does not know whether the applicant sought permission from Ms. Mafokane but she also enquired on how the applicant got there. Ms Mthikhulu and Nabe were Acting HOD at the time of the incident. The applicant uttered those words at the time of an altercation between him and the principal. Both the applicant and the principal were very loud.
APPLICANT’S ARGUMENTS
Malale TS
A summary of the applicant’s submissions is as follows:
11. He went to make a phone call at the admin office after he was granted permission by Ms Fokane. He was also not made aware of any restrictions to seek permission prior to accessing the admin office. There is a security door, and he can only gain entry if its opened. There were more than six educators inside the office. As he was trying to make a phone call, the principal enquired with him on what he was doing. He informed the principal that he was there to make a call to enquire about the natural science paper. On attempting to dial the number, the principal grabbed the phone from his hands. He (principal) further stated that he cannot allow him to assist him run the school as he has done with the previous principal because he is a thug of a teacher. At that very moment tempers were very high between them. He responded to the principal that if he has a problem with him they can go outside and exchange blows.
12. He argued to have not uttered the words that he will blow the principal’s head although he was humiliated and provoked. He does not understand how the applicant came to the conclusion that he wanted to kill him. The actual words which were uttered are not placed on the charge sheet. The principal could have allowed him to phone and charge him for defiance. He argued to have only stated that they can go outside and exchange blows. Moditle was also at the office and was never chased away. It was not stated why Moditle was at the office. After he was separated from the principal he went outside to sit with other colleagues. He argued to have not left the premises.
13. He argued under cross-examination that Ntonyane was in the same office throughout the entire period but never heard what the principal stated to him. He argued to have not threatened the principal but indicated that they can go outside to exchange blows. He uttered those words at the time tempers were very high. The principal stated that he has been in prison and described him as a thug. He conceded that it is 2nd time that he was charged and fined for assault against a principal.
ANALYSIS OF EVIDENCE AND ARGUMENT
14. Section 192 (1) of the Labour Relations Act stipulates that “In any proceedings concerning a dismissal, the employee must establish the existence of the dismissal”. Dismissal is not in dispute. Therefore, the onus to prove the fairness of the dismissal rests with the respondent. In doing so, Section 188 (1) of the Act requires the employer to prove:
(i) that the employee was dismissed for a fair reason relating to the employee’s conduct or capacity; or based on the employer’s operational requirement, and
(ii) that the employee’s dismissal was done in accordance with a fair procedure.
15. It is common cause that there was an altercation, then a wrestle between the applicant and the principal on 07 November 2014. The principal argued that there was a rule at the school restricting the applicant from gaining entry to admin offices without permission from the HOD. This version was corroborated by Jerry Ntonyane. The applicant on the other hand conceded to this by putting a version to the respondent’s witness (Ntonyane) that permission was sought from Ms Fokane. The respondent’s witness, Ntonyane, argued that Ms Fokane also questioned the applicant’s presence within the office. Mr. Ratsieng could not agree nor disagree that there was a rule in place requiring that permission be sought. However, he argued that all employees knows what was required of them pertaining to accessing the admin office. Therefore, I accept the version that the applicant was reasonably aware that he was to seek permission prior to gaining entry into the admin office. The applicant failed to do so.
16. It was not in dispute that the applicant was instructed to leave the office and told not to make a phone call. However, the applicant defied such instruction and picked the handset with the intention to make a call. Video footage reflects that following the applicant’s act, the principal grabbed the phone from the applicant’s hands. He (principal) then placed his hands with the handset on his back. The applicant wrestled the phone out of him (principal). The principal proceeded to unplug the phone from the wall. At a particular point in time the applicant and the principal were in very close proximity, herein referred to as being ‘eye ball to eye ball’. The principal, Ntonyane and the applicant submitted that during this unpleasant wrestle the applicant uttered the words.
17. There is a dispute of fact on what were the words uttered by the applicant. The applicant stated that he told the principal that they can go outside to exchange blows. The respondent stated that the applicant stated that he will blow the principal head. The evidence of Ntonyane cannot be relied upon given that he had a selective memory insofar as who said what and when. Ntonyane could only remember words spoken by the applicant. When assessing the submissions of the applicant and the principal. The version of the principal seem more probable than that of the applicant. It is also evident from the footage that the applicant was more agitated as compared to the principal during the altercation. Moreover, the applicant looked much more forceful upon the principal and may have uttered any words to intimidate the principal. I accept the respondent’s version that the applicant uttered the words and in so doing threatened the principal.
18. The applicant argued to have been provoked to act in the manner he acted. Oxford dictionary defines provocation to imply ‘action or speech that make one angry, especially deliberately’. It is clear from the submissions of both parties that the applicant was instructed to leave the office and not use the telephone. However, he defied the instruction issued by the principal. And in response thereto, the principal went to take the phone from his hands. Having considered the applicant’s argument, I am led to believe that the applicant is the one that provoked the principal. After the 1st engagement with the principal, the applicant had much time to reflect on the instruction and then reacted to it. He was instructed to leave the office and not making a phone call. Even at the initial encounter with the principal, it resembles the applicant throwing his hands all around whilst talking continuously. This reflects that the applicant had much to say as compared to the principal. And all this happened in front of other staff members.
19. In determining fairness, the court noted In Sidumo and another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC); [2007] 12 BLLR 1097 (CC) In terms of the LRA a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all the relevant factors and circumstances.
20. When assessing the applicant’s conduct in totality, I find that the applicant’s conduct did breach the trust relationship between himself and the Department. Therefore this conduct warrants termination. In so saying, I find that the respondent discharged the onus on balance of probability that the dismissal of the applicant was substantively fair.
21. I order as follows:
AWARD
22. The dismissal of the applicant is upheld.
23. This application is dismissed.
24. I make no order as to costs.
Thus done and signed in Pretoria on 28 April 2017
ELRC Panellist
Evah T. Ngobeni