Case Number: PSES 419-17/18GP
Applicant: SAOU obo D. Pienaar
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Misconduct
Award Date: 18 March 2018
Arbitrator: M. A Hawyes
Case Number: PSES 419-17/18 GP
Commissioner: M.A. HAWYES
Date of Award: 18TH March 2018
In the ARBITRATION between
SAOU obo D. Pienaar
Department of Education: Gauteng
Union/Applicant’s representative: A.M Labuschagne
Telephone: 083 283 2484
Respondent’s representative: S.M Mogashane
Telephone: 072 484 4234
1. DETAILS OF HEARING AND REPRESENTATION
a. The case was scheduled for arbitration on three separate occasions namely the 29th November 2017, the 24th January 2018 and the 23rd February 2018.
b. Upon completion of the leading of evidence the parties requested and were granted an opportunity to submit written closing arguments upon or before the 9th March 2018. Closing arguments were duly received and the arbitration award now follows.
c. Ms. A.M. Labuschagne, an official from the Suid Afrikaanse Onderwys Unie (SAOU) represented the Applicant
d. Mr S.M. Mogashane, an employer relations official, represented the Respondent.
e. The services of an Afrikaans interpreter and intermediary services were also utilized during the arbitration. The arbitration proceedings, for the most part, were held in Regional Court 12 of the Pretoria North Magistrates Court.
2. ISSUE IN DISPUTE
I am required to determine:
a. Whether Applicant’s dismissal was substantively and procedurally fair or not.
3. BACKGROUND TO THE ISSUE IN DISPUTE
a. The following facts are common cause:
b. Respondent employed the Applicant as a post level one educator at Laerskool Teresa Park.
c. At the time of the alleged incident the applicable minor learner at the school was in Grade 6. Applicant was one of her teacher’s. Other facts related to the incident are common cause, but these will be mentioned at a later stage in the arbitration award.
d. Applicant was charged and subsequently dismissed for allegedly contravening section 18 (1) (q) of the Employment of Educators Act No. 76 of 1998 (EEA) in that he sent what’s app messages to the learner the contents of which made her feel uncomfortable and scared.
e. An appeal to the office of the MEC proved to be unsuccessful.
4. SURVEY OF RESPONDENT’S EVIDENCE AND ARGUMENT
a. Mogashane commenced the proof of his case by lodging an application to have the record of the disciplinary proceedings admitted as part of the evidentiary material. This after I was advised off record that the learner’s parents had advised Mogashane (via an e-mail dated the 23rd November 2017) that they would not allow the learner to give viva voce evidence at the arbitration hearing. Thus, Mogashane sort to introduce the hearsay transcript of the record as a substitute for the learner’s oral evidence. After hearing submissions from both representatives, I ruled that the transcripts of the disciplinary proceedings would only be admitted if the learner agreed to give oral testimony at the arbitration hearing. All the necessary arrangements had been made for the learner to testify through an intermediary with an interpreter in a properly designated children’s Regional Court.
b. In pursuit of the best evidence possible I allowed a postponement of the arbitration to give Mogashane an opportunity to consult with the parents with a view to allowing their daughter to give viva voce evidence at the arbitration hearing.
c. One the next date of set down the learner and her parents were not at the hearing and the arbitration commenced with the leading of the evidence of Mrs Elizabeth Ackerman and Mr Makgoba Matlou. A survey of these witnesses evidence will be given later.
d. The arbitration was adjourned to the 23rd February 2018, due to the absence of a competent Afrikaans
interpreter to assist the Applicant in giving his testimony. Mogashane indicated that he would make
one last effort to secure the attendance of the learner at the arbitration hearing and thus he did not
close his case at this time.
e. On the 23 February 2018 when the arbitration proceedings reconvened the learner and her parents were in attendance (but not for long).
f. The learner was called to the small room adjoining the court designated for children and the
intermediary. When the light was switched on in the room the learner immediately objected and
refused to testify.
g. She stated that she did not want anyone to see her testifying (even if it was on a TV screen) and she insisted on testifying in the dark. I was not willing to allow the learners testimony to proceed in this highly irregular fashion since it would be impossible to observe the demeanor of the child in assessing the weight to be given to her testimony.
h. Shortly thereafter the learner and her parents left the court building (without being excused first). Mogashane simply mentioned that the parents had left but made no mention of the reason for their departure. Mogashane did not specifically place on record or notify me that the Applicant was accused of intimidating the learner or her parents. It was Applicant who raised the alleged accusations for the first time during his testimony.
i. Thereafter Mogashane closed his case.
j. It is common cause that witness Elizabeth Ackerman was the learners register teacher at the time of the alleged incident.
k. Ackerman testified that on the 19th August 2016 one of the learner’s friends called her aside and mentioned that something had happened to the learner, but she was too shy to talk about it.
l. Ackerman testified further that she spoke to the learner a short while later.
m. The learner mentioned that Applicant had sent her a message whilst she was in detention class one Friday afternoon, he asked her what she was doing, she said she was learning, she mentioned that Applicant said he was proud of her.
n. Later that evening Applicant had what’s apped her again. He told her that he was laying on his bed watching a movie and mentioned that he missed her. He went on to say that he wished she was there and that he would like to give her a soft kiss on the neck. When the learner read the message, she got a fright.
o. When asked how Applicant had obtained her cell phone number the learner mentioned that the two of them had spoken over what’s app a few times.
p. Ackerman testified that the learner mentioned that on a certain day Applicant asked her to help him mark tests.
q. Ackerman deposed that she found this strange because learners helping Educators mark scripts was not allowed.
r. Applicant then showed her some jokes on his phone. The learner asked that he forward the jokes to her. She said she could not remember her cell phone number. Applicant then gave his cell phone number to her and told the learner to send him a what’s app when she got home, so that he could forward the jokes to her.
s. Applicant also asked her for a pic and she sent him a picture taken by her mother of her standing in the garden.
t. Whenever Applicant marked her books he would touch her arm and say he likes her a lot. When she went home he would give her a hug and kiss her on the top of her head.
u. All the hearsay evidence given by Ackerman was provisionally admitted.
v. Ackerman concluded by saying that the learner had not told her parents and had deleted all the messages off her phone after she got a fright.
w. Ackerman deposed that similar incidents had occurred before involving the Applicant which had resulted in disciplinaries and Applicant went for help. No further information about the alleged misconduct was placed before me. This aspect of Ackerman’s testimony was never challenged in cross examination.
x. The matter was reported to the Principal of the school.
y. Applicant later encountered her in the passage and wanted to know if she had reported him to the Principal about the learner. Ackerman confirmed this. Applicant threatened to sue her if anything came out.
z. When the issue of the alleged previous incidents was raised I posed the question whether the evidence of previous incident(s) should not be rendered inadmissible on the basis that it constituted similar fact evidence. Mogashane concede that it was indeed similar fact evidence. I then made a ruling that Ackerman’s testimony about previous incidents was inadmissible in proving the commission of the misconduct at hand.
aa. The next witness Mr Makgoba Matlou deposed that he was the Chairperson of Applicant’s disciplinary
enquiry. The first sitting of the disciplinary enquiry took place at the Garankua Magistrates Court and
later at the Gauteng District North Offices.
bb. Matlou conceded that there was no independent intermediary at the disciplinary enquiry and the learner’s mother assisted when the learner gave her testimony.
cc. It later came too light that the husband of the previous witness Ackerman had assisted with interpreting from Afrikaans to English at the disciplinary enquiry. The quality of interpretation provided was poor. It is common cause that Mr Ackerman was not appointed as an official interpreter.
dd. Matlou testified that there was nothing in the Respondent’s disciplinary code to bar parents from attending the disciplinary enquiry involving their child.
5. SURVEY OF APPLICANT’S EVIDENCE AND ARGUMENT
a. Applicant elected to testify under oath and he called no witnesses.
b. Applicant mentioned that he had been a post level 1 educator at Theresa Park Primary School for 14 years.
c. Applicant went on to depose that the complainant learner had showed him a joke on her cellphone
in January 2016. She had asked Applicant if she could send it to him. Applicant said it was ok and she sent him
the joke via what’s app. After receiving the joke and distributing it to his friends he deleted the learner’s message
d. For six months thereafter, there was no contact. However, on Friday 19 August 2016 Applicant got a what’s app
from a strange number. The person asked, “What are you doing?” Applicant deposed that he was at home. Applicant then asked who are you? The person said he must guess
e. Since the person did not want to identify him or herself, Applicant testified that he asked the person to put a
profile pic on their what’s app. Instead a photograph pic was sent, and Applicant immediately identified the
sender of the what’s app as the complainant learner.
f. The learner then asked him what he was doing, and he mentioned that he was home watching a movie.
g. On the following day (Saturday 20th) Applicant testified that he deleted the what’s app message and
the learner as a contact from his phone. That was the end of the conversation. Applicant indicated that he told the learner that he was going to delete her. Applicant deposed that he suspected the learner had laid the charge against him because he had informed her that he was going to delete her. Other than that, he could not think of any other reason why the learner had done what she had done.
h. On the alleged touching of the arm incident Applicant testified that the learner had approached him to have her
script marked. She then turned around to go back to her desk. Applicant took the book and touched her arm
to get her attention so that she could take the book with her when she went to sit down.
i. Applicant deposed that after the incident he had a lot of problems with the learner. She frequently disrupted his
classes for example by crawling on the floor. When he tried to discipline her, she stated that she would
report him to the Department.
j. Applicant asked me to reject the learner’s hearsay allegations. He mentioned that the learner had specifically
lied about him intimidating her on the last occasion she and her parents were at court. All he had done was
walk past her to the toilets and had had no eye contact with the learner. Mogashane never challenged this version during cross examination.
k. Applicant denied specifically telling the learner on what’s app that he missed her. She had been absent from school for 4-5 days. Upon her return he had welcomed her back and said that the class missed her. The learner had twisted his words This was another example of her lying behaviour.
l. Applicant’s representative asked me to find that Applicant’s dismissal was both substantively and procedurally
unfair and in the absence of evidence to prove that the relationship of trust had irretrievably broken down
Applicant prayed for retrospective reinstatement.
6. ANALYSIS OF EVIDENCE AND ARGUMENT
a. Mogashane referred in his closing arguments to the case of Minister of Police v RMM and SSSBC and others (JR 56/16)  ZALCJHB where the court accepted that the commissioner in the said case correctly admitted the hearsay evidence of the transcript of the disciplinary enquiry into evidence without the need for the complainant to testify.
b. In deciding the admissibility of the disciplinary enquiry transcript in this matter I indicated that I was willing to accept the transcript of the disciplinary enquiry into evidence but only if the complainant learner was
c. willing to testify and be subject to cross examination. I wanted to ensure I was dealing with a truthful and reliable complaint given the serious ramifications and consequences for the Applicant. Hearsay evidence has a notorious reputation for being unreliable.
d. The courts reference to hearsay of a special type is noted but can be distinguished on the facts of
this case. In the Minister of Police case the court reasonably attached much weight to the transcript and found that the transcript contained tested allegations and a tested denial.
e. The same cannot be said of the disciplinary enquiry in this matter. The Respondent admitted to glaring procedural irregularities for example Ackerman’s husband acted as an interpreter for the entire disciplinary enquiry and the Chair of the disciplinary enquiry also allowed the learner’s mother to unjustifiably act as an intermediary. The Applicant did not consent to these arrangements. It is evident from the facts of this case that the parents of the learner have influenced proceedings at the arbitration and there is no reason to believe that they could not have influenced what was said and done at the disciplinary enquiry. Therefore, I was not content to rely upon hearsay evidence and the admission of a transcript that could not be properly challenged by cross examination at a hearing de novo in a matter as sensitive as this.
f. The facts of this case are not as serious as the facts in the cited court case and it was not unreasonable to expect the learner to testify in the carefully arranged set up of a Regional Court, separate room, monitors and an independent intermediary. The learner’s reluctance to testify and be cross examined with the light on (whether influenced by her parents or not) is simply outrageous and is indicative of the unruly behaviour described by the Applicant in his evidence. It also caused me to question the veracity of the learner’s testimony where it differed from that of the Applicant.
g. It is easy to allow strong yet justified emotions for the protection of minor children in a school environment to override the clearly laid out principles of evidence. Firstly, the Respondent bears the onus to prove substantive and procedural fairness on a balance of probabilities. This they have not done. The Respondent representative himself admitted that the disciplinary enquiry that preceded Applicants dismissal was characterized with serious procedural irregularities as described above. I find that Applicant’s dismissal was procedurally unfair.
h. Contrary to the argument of Mogashane I find the Applicant’s version to be satisfactory in most material respects. Since the transcript of the disciplinary enquiry was not admitted into evidence and the learner chose not to testify there is effectively no case which raises a standard against the clear and detailed testimony of the Applicant. The version of the Applicant is not improbable on its own. On Applicant’s version he did not initiate the what’s app conversation with the learner and there is no direct evidence before me to suggest that he did.
i. Both the learner and the Applicant had enjoyed some relatively harmless interaction earlier on in the
year and it is not improbable that the immature mind of a grade six pupil could have decided to contact the educator via what’s app without realizing the consequences for the educator himself. The way Applicant handled the matter by deleting the message and the learner as a contact may be construed as reasonable self-preservation. The learner’s reaction to being deleted by her teacher may reasonably have induced immature attention seeking behaviour as described by the Applicant.
j. I find that the Respondent also failed to prove substantive fairness of Applicant’s dismissal on a
balance of probabilities.
k. The difficult part is now determining the appropriate relief. Although the evidential burden is
discharged Applicant will not find it easy or even possible to shrug the stigma that allegations of this nature bring with them in the work place.
l. Although I could not rely upon similar fact evidence of Ackerman in deciding the merits it must play some part in the determination of the appropriate relief. It is common cause that Applicant was previously disciplined for similar misconduct for which he received a fine. In a sense Applicants reputation in the workplace has already been tarnished.
m. I have an obligation to keep the school ground and the classroom free of festering stigmas.
n. I believe an order of compensation will address Applicants unfair dismissal whilst obliging him to start afresh with a clean slate somewhere else.
o. At paragraph 44 of Applicants heads it was suggested that I was empowered to award solatium for non-patrimonial loss and other relief couched in the form of damages. I regret to advise that I have no such jurisdiction to award damages as part of an arbitration award. Applicant will have to approach the courts if he seeks such additional relief.
a. The respondent is ordered to compensate the Applicant in an amount equivalent to six months gross remuneration.
b. Applicant earned R25207-50 (gross) at the time of his dismissal. The amount due and payable to the Applicant is R25207-50 x 6 = R151245-00.
c. The amount of R151245-00 (less tax) must be paid to the Applicant upon or before the 30th April 2018.