PSES781-16/17WC
PSES781-16/17WC
Award Date:
9 May 2018
Case Number: PSES781-16/17WC
Province: Western Cape
Applicant: Naptosa obo Kruger, CB
Respondent: HOD: Western Cape Education Department
Issue: Unfair Dismissal - Misconduct
Award Date: 9 May 2018
Arbitrator: Oudsthoorn.
Case Number: PSES781-16/17WC
Commissioner: Samuel Baron
Date of Award: 9 May 2018
In the ARBITRATION between
NAPTOSA OBO KRUGER, CB
(Union/Applicant)
And
HOD: WESTERN CAPE EDUCATION DEPARTMENT
(Respondent)
Employee’s representative: Mr Faiez Tassiem
Applicant’s address: 6 Park Road
Rondebosch
Cape Town
8001
Telephone: 021 686 8521
Telefax: 021 689 2998
E-mail:
Employer’s representative: Mr Solminic Joseph
Respondent’s address: 17th Floor, Golden Acre Building
Lower Parliament Street
Cape Town
8001
Telephone: 021 467 2898
Telefax: 021 425 8612
E-mail:
DETAILS OF HEARING AND REPRESENTATION
1. This arbitration ran for three days (16-18 April 2018) and was finalized on 18 April 2018 at the offices of the Respondent in Oudsthoorn. The parties requested 7 days in which to submit written closing arguments and they duly obliged.
2. The Applicant, Mr. Christiaan Kruger, was only present on the last day of the arbitration (the 18th) but was represented throughout the proceedings by Mr, Faiez Tassiem, an official from the trade union NAPTOSA, of which the Applicant is also a member.
3. The Respondent, Western Cape Education Department, was represented by Mr. Solminic Joseph, its Labour Relations Officer.
4. The proceedings were digitally recorded and Mr. Daniel Kova provided intermediary as well as interpretation services. The services of two Social Workers, Mess. Engela Swarts and Maritsa Lindeque were also employed to provide assistance to two of the learners.
ISSUE TO BE DECIDED
5. I am required to determine whether the Applicant’s dismissal was substantively fair and if not, determine the appropriate remedy.
BACKGROUND TO THE DISPUTE
6. The Applicant was employed by the Respondent as an educator at Dysselsdorp Secondary School.
7. His dismissal was confirmed by the MEC for Education, Ms. Debbie Schafer, upon appeal to her on 27 January 2017.
8. The Applicant faced the following five charges of misconduct, which I will write down as it is. I will however elaborate the English versions in my summary and analysis of evidence.
Klag 1 “Daar word beweer dat u skuldig is aan wangedrag ingevolge Artikel 18 (1) (r) van die Wet op indiensneming van Opvoeders, No 76 van 1998, (hierna genome die Wet) deurdat u gedurende Februarie 2016 en/of Mei 2016, leerder “A”, ‘n grad 8 leerder verbonde aan Dysselsdorp Sekondere Skool aangerand het deur:
(a) Haar met ‘n klip op die voet te gooi en/of
(b) Haar met ‘ stok oor die liggaam te slaan.
Klag 2 “Daar word beweer dat u skuldig is aan wangedrag ingevolge Artikel 18 (1) van die Wet deurdat u gedurende Mei 2016, leerder “B”, ‘n grad 8 leerder verbonde aand die Dysselsdorp Sekondere Skool aangerand her deur hom teen die been te skop
Klag 3 “Daar word beweer dat u skuldig is aan wangedrag ingevolge Atikel 18 (1) (r) van die Wet deurdat u op of omtrent 22 April 2016, leerder “C”, ‘n graad 8 leerder verbonde aan Dysselsdorp Sekondere Skool aangerand het deur:
(a) Hom met ‘n boek in sy gesig te gooi, en/of
(b) Hom uit sy bank geruk het
Klag 4 “Daar word beweer dat u skuldig is aan wangedrag ingevolge Artikel 18 (1) (q) van die Wet deurdat u gedurende die eerste en/of tweede kwartaal van 2016, onderwyl aan diens, up op ‘n onbehoorlike, skandalige of onaanvaarbare wyse gedra het, deurdat u teenoor leerders verbonde aan Dysselsdorp Sekondere Skool woorde met min of meer die volgende betekenis geuiter het
(a) “Julle is die Kaap se kakste goed”
(b) “Gaan vrek julle bobbejane”
Klag 5. Daar word beweer dat u skuldig is aan wangedrag ingevolge Artikel 18 (1) (q) van die Wet deurdat u gedurende Julie 2016 u op ‘n onbehoorlike, skandalige of onaanvaarbare wyse gedra het, deurdat u teenoor leerder “D” verbonde aand die Dysselsdorp Sekondere Skool woorde met min of meer die volgende betekenis geuiter het:
(a) “sy is ‘n prostituut”, en/of
(b) “gaan sit in die hoek prostituut”
9. The Applicant requested me to order compensation in the event I find in his favour.
SURVEY OF EVIDENCE AND ARGUMENT
10. The Respondent submitted a bundle of documents and called ten witnesses to testify in support of its version. The Applicant testified himself.
Respondent’s case
11. Mr. Chris Swanepoel testified that he is employed as the circuit manager for the circuit in which the Applicant was teaching. He testified that he received several complaints from the Institutional Management and Governance Manager as well as the principal from the school, Ms. Moses, regarding the Applicant. He was also copied in a lot of communication by the Applicant. He tried to resolve some of the complaints.
12. Mr. Swanepoel testified further that there are certain protocols in place when dealing with complaints depending on the seriousness thereof. He explained that in the instance that a learner complaints against a teacher, such complaint would be investigated by the labour relations office and not himself. He also stated that when an educator has a complaint against the principal, such teacher would take it up directly with the principal and when it is not resolved, should be escalated to him as the circuit manager. If necessary, the intervention of the district office will also be sought. When the educator accuses the principal of misconduct, he mentioned, he will do a formal investigation and report it to the district director.
13. According to Mr. Swanepoel, the relationship between the Applicant and the principal, Ms. Moses was not good and that it was one of the first things he had to try and resolve when he assumed the position. He stated that the principal also tried to resolve it herself, but she failed. Finally, Mr. Swanepoel stated that there is no discretion on himself not to investigate a complaint about an educator nor does the principal has a discretion not to refer a complaint from a learner for investigation.
14. Apart from certain pertinent factors, I do not wish to restate all the issues that was raised by Mr. Tassiem in cross-examination. It was put it to Mr. Swanepoel that the Applicant referred several complaints about the principal to him, one of which was that the Grade 11’s were being taught the Grade 12 curriculum. Mr. Swanepoel responded that the Applicant was not a subject specialist and that when he (Mr. Swanepoel) sent in a subject specialist, the subject specialist could not find anything wrong with how the curriculum was being taught.
15. Another complaint that the Applicant had according to Mr. Tassiem was that the Applicant was a Physics Educator, but had to teach Life Sciences at the school. Mr. Swanepoel responded that the Applicant applied for the Life Sciences position at the school and as such was utilized to teach the subject and that it was in no way as a means to punish him for the complaints he lodged against the principal.
16. Megan Abrahams testified that she was taught Natural Sciences by the Applicant in Grade 8 and that he never gave them work to do, but always requested them to write the whole text book down. During the time he gave her class, he called her a prostitute. She understands the word to mean someone who sells her body.
17. She testified further that two other learners, Androlene and Shaun, also heard him saying that because he spoke loudly. She mentioned that she did not tell the principal herself about the incident, but that Shaun told her when she passed by the classroom. She insisted that she did hear the Applicant correctly and that he did say that she was a prostitute.
18. Meagan agreed under cross-examination that they talked a lot in class but denied that the Applicant used the word “prosthetics” instead of prostitute.
19. Androlene Esau testified that she was also taught Natural Sciences by the Applicant. She stated that the situation in the Applicant’s class was chaotic because the Applicant, when they wanted to talk to him, told them that he already gave them work the previous day.
20. She stated that she heard the Applicant telling Meagan Abrahams to “go sit in the corner prostitute”. She mentioned that she sat next to Meagan in class in the second row from behind and she could hear the word being uttered. According to her, everyone could hear the Applicant saying that. She mentioned that Meagan felt bad and started crying.
21. She mentioned further that the Applicant also previously told them that they are “die Kaap se kakste goed” (you are the shittiest things in the Cape). She testified that she felt very bad about that. She also reiterated that did not hear wrong and that the Applicant did call Meagan a prostitute.
22. Androlene denied under cross-examination that they were told by the principal to report the Applicant if he ever did something wrong. She further denied that the Applicant used the prosthetics instead of prostitute.
23. Shaun Arendse testified that he was also taught Natural Sciences by the Applicant. He testified that the Applicant told Meagan Abrahams to “go sit in the corner you prostitute”. He heard him saying that because he was sitting behind her in the class at the time. Shaun testified that he understood the word prostitute to mean someone who sells her body. He stated that Megan started crying after that. He also mentioned that he called the principal when she passed their classroom and told her about the incident.
24. Shaun stated further that the children made noise in the Applicant’s class because he did not give them work. He would always tell them that they must write down the whole text book and he would then play computer games behind his desk. According to him, the Applicant would sometimes put chalk in his ears when the children made too much noise.
25. Shaun strongly denied that the Applicant used the word prosthetics and also that the principal informed them to tell her when the Applicant would do something wrong.
26. Douglas van Beulen testified that on a particular day, he wanted to cut a page from a book when the Applicant threw a dictionary at him and that the dictionary hit him in the face on his left cheek. This incident was observed by another learner by the name of Leathin Visagie. He stated that he had the scissors in his right hand, but the cleaning lady by the name of Koba went to inform the principal that he wanted to stab the Applicant. He however did not want to stab the Applicant.
27. According to Douglas, the Applicant treated him this way because he testified against him two years ago. He stated that the Applicant also told them that if he was their parents he would lay on them until they suffocated and died.
28. Douglas also testified that he noticed that there was a problem between the principal and the Applicant because when she was in their classroom once he made funny faces behind her back. He however denied that she told them to tell her when the Applicant would do something wrong. He also denied that it was a book that was thrown at him but insisted it was a dictionary.
29. He also mentioned that the Applicant kicked another learner, Angelo Heyns, on the right leg. He did not hear what it was about, but he saw the Applicant kicking Angelo.
30. It was put to Douglas during cross-examination that the Applicant threw a textbook at him and not a dictionary and the only reason he mentioned a dictionary was to make it look worse because a dictionary is thicker. He denied it and confirmed it was a dictionary.
31. Leathin Visagie testified to confirm that the saw the Applicant throwing a dictionary at Douglas van Beulen. He was sitting in the same row as Douglas when it occurred. He stated that the Applicant also pulled Douglas out of his desk. According to him, the Applicant went back to Douglas and hit him with a bag.
32. Leathin testified further that the Applicant told them that their mothers should have laid on them at birth. According to him, he also saw the Applicant hit a learner by the name of Mochelle Heyns with a broomstick. Leaton denied that Douglas was thrown with a book by the Applicant when this was put to him during cross-examination. He maintained it was a dictionary.
33. Kaisha Arends testified that she was also taught Natural Sciences by the Applicant in Grade 8. She stated that the Applicant said in class “julle is die Kaap se kakste goed”. She mentioned that he also said that they were baboons who stand on a bridge and that their parents should have laid on them when they were small. She was of the view that he said this because she had repeated Grade 8. She stated that she felt very bad because of the words uttered by the Applicant.
34. Kaisha mentioned that she and the other learners in the Applicant’s class made a lot of noise because he did not give them work, but was rather played computer games during class. It was also put to her that they were prompted by the principal to lay complaints against the Applicant, but she denied this and reiterated that she was very sure that he said those words.
35. Kaylene September testified that when she received class from the Applicant in Grade 8, he did not give them work, but told them to write down the whole text book. She testified further that the Applicant told her that she has a stupid principal’s face, that she must stand on a bridge and fall to death and that they are stupid baboons. According to her, these words were overheard by Kaisha Arends.
36. Mr. Marius Wagenaar testified that he is the Deputy Principal of Dysselsdorp and that he is responsible for the effective functioning of the school. He is also the second in charge of the school. He also has to make sure that the Curriculum is implemented and that the statistics in relation to the Curriculum is released. He has oversight over the Head of Departments.
37. Mr. Wagenaar testified further that in the event a learner is accused of serious misconduct, it must be referred to the School Governing Body, who will investigate such matters.
38. According to Mr. Wagenaar, he had to go to the Applicant’s class several times to request him to silence the children and that he would find him behind his desk on the computer. He mentioned that the same learners would be quiet in the other classes.
39. He testified further that two learners, Mochelle Hans and Angelo Heyns came to him to complain about the Applicant. Mochelle told him that the Applicant hit her with a broomstick and Angelo complaint that the Applicant kicked him. He saw the red marks on Mochelle’s arm as well as the marks on Angelo’s legs. He had no reason not to believe either of the two learners.
40. Mr. Wagenaar stated further that he approached the Applicant about the complaints and the Applicant confirmed that he did hit Mochelle, but that it was with something that can break.
41. Mr. Wagenaar testified further that the Applicant did not like the principal and that they always differed on things. The Applicant according to him once uttered the words “you and the fucking principal are not in charge of the school”.
42. During cross-examination, Mr. Wagenaar denied that the principal was on a crusade against the Applicant.
43. Ms. Mercia Moses testified that she was appointed principal of the school in 2008. She testified further on Charge 1 that she passed the Applicant’s class and found a learner sitting outside his class. He informed her that the learner was using bad language in the class. When she confronted the learner, Mochelle Hans, Mochelle told her that the Applicant threw her with a stone on her foot and that was the reason she used the bad language. She went into the Applicant’s class and Mochelle identified the rock in the classroom. Mochelle then related the incident in front of her mother and the Applicant the next day. The Applicant responded that it was not a rock but a piece of paper that was under his desk which he threw at her.
44. Ms. Moses testified further that another incident involving the same learner occurred, it was alleged that the Applicant hit her with a broomstick. He reported this to the labour relations office to Mr. Wagenaar. Also, the matter involving Angelo Heyns also happened when Mr. Wagenaar was in charge of the school and she also reported this matter.
45. She stated further that the incident involving Douglas van Beulen was reported to her by Douglas himself. She became aware of the incident when the cleaning lady approached her to tell her that Douglas wanted to stab the Applicant with a scissors. She requested the Applicant to put in writing so that the matter could be investigated by the SGB (School Governing Body), but he never did. She referred the matter to the SGB anyway and their finding was that there was no proof that the learner wanted to stab the Applicant.
46. With regards to Charge 4, Ms. Moses testified that this incident came to her attention through an investigation that was done by the Department. It was never reported to her. On the charge relating to Meagan Abrahams being allegedly called a prostitute, Ms. Moses testified that she was told by one of the learners in the class.
47. Ms. Moses mentioned further that she had no discretion not to report any allegation of serious misconduct by an educator involving hitting a learner and any type of abuse.
48. She also stated that the Applicant’s class is very close to her office and she always heard a noise there. She once decided to go and have a look and the Applicant informed her that the learners were very rude. She informed him that he must follow the specific intervention system that were in place and report learners that misbehave. He never followed this process.
49. Ms. Moses stated further that the Applicant, when confronted with the discipline issues of the learners in his class, would always jump up and responded to her in a disrespectful manner. He once referred to her as a “stuk kak” and a “slet”.She did not take the matter further because it would happen in front of the children and she did not want to subject the learners to disciplinary hearings. She denied that she ever made the learners gang up against the Applicant.
50. Ms. Moses denied that the relationship soured since 2014 because the Applicant wrote her an e-mail to inform her that she failed in her task of disciplining the learners at the school. It was put to her that she took it personal, which she denied. She stated that the Applicant never did his part in effectively disciplining his learners.
Applicant’s case
51. The Applicant, when asked to respond to the allegations in Charge 1 (a), testified that there was a huge discipline problem at the school. He stated that he did not throw a rock at the learner, but rather a cardboard.
52. With regards to Charge 1 (b), the Applicant testified that he did not hit the learner with a stick but he hit the stick on the desk and the learner then took the incident forward. He only used a piece of veneer, he testified.
53. The Applicant further testified on Charge 2 that the learner, Angelo Heyns, left the school and that his parents were not interested in having him testified here. He stated that he attempted to hand Angelo an intervention letter, but as he came forward, Angelo tripped over his feet, so it was not a deliberate act.
54. He testified further that in relation to Charge 3, he did not throw a dictionary at the learner because there were no dictionaries in his class, which was a Natural Sciences class. He actually threw a book at the learner and it landed on the learner’s desk, not in his face. If he threw a dictionary at the learner, there would have been a mark on his face, but there was none. Also, he could not have pulled the learner out of his desk because there were no desks, it was a laboratory.
55. The Applicant mentioned that on Charge 4, he believed that his words were taken out of context. He never said they were “die Kaap se kakste goed”, but rather that they were “twak goed”. He also mentioned that he, as a Natural Science educator, discussed the food chain with the learners and informed them that the baboons would die if they do not hunt for food. He did not refer to the learners as baboons.
56. The Applicant further denied that he just sat behind his desk playing computer games. He stated that if he was the only educator who did not do his work, the whole school would not have performed badly.
57. The Applicant stated further that he lodged a grievance but nothing was done about it. All his complaints regarding the discipline at the school fell on deaf ears. His response on Charge 5 was that he never put learners in a corner. According to him, Meagan constantly talked and he told her that she was like a prosthetics hand, always talking.
58. The Applicant testified that he was the only educator who taught all the Grade 8’s. This he felt amounted to victimization by the principal. All of this, he says, was because of the e-mail he send in 2014 regarding the discipline at the school. He also mentioned an incident where he applied to mark the examination papers of the Life Sciences, but five minutes before the close of the school for the Easter Holidays in 2014, the principal informed him that she was not going to sign his application. He was the only educator whom she ever refused. He never marked examination papers again after that.
59. According to the Applicant, the only reason these charges were put against him is because the principal wanted him gone. She gave the learners candy and she wanted to get the white man away from the school.
60. The Applicant came under severe cross-examination but I do not wish to repeat everything that was dealt with there, but will refer to some pertinent aspects in my analysis.
ANALYSIS OF EVIDENCE AND ARGUMENT
61. It is trite law that a dismissal must be procedurally and substantively fair. In other words, a fair reason must exist for the dismissal and the dismissal must be effected in accordance with a fair procedure (see section 188 of the Act).
62. The Applicant did not place procedural aspects in dispute and I must therefore determine from the evidence whether a fair reason existed for the Applicant’s dismissal from the Respondent’s employ. In doing so, I have to determine whether the Applicant is guilty of the charges proffered against him and whether the sanction was appropriate under the circumstances.
63. I will first deal with Charge 1. Mr. Tassiem urged me to ignore the evidence on this charge because it amounted to hearsay evidence. I will respectfully decline that invitation. Whilst it is true that the learner, Mochelle Hans, did not testify in person due to circumstances beyond the control of the Respondent, I cannot simply ignore the evidence that was led on this charge by the principal and the response of the Applicant in relation to that. There was no challenge to the principal’s evidence that Mochelle repeated her version that she was thrown with a stone in front of the Applicant as well as her parent and that she went to identify the stone in the Applicant’s classroom. The Applicant admitted that he threw her with cardboard. The principal was present when the stone was identified. I tend to lean towards the version of the Respondent in this regard. The Applicant did threw the learner with something. In my assessment, there is sufficient evidence to conclude on a balance of probabilities that she was assaulted with an object.
64. On the second part of the charge, Mochelle Hans again did not testify, but Mr. Wagenaar testified on this aspect and mentioned that he observed the scuff marks on her arms and that he and the Applicant went to look for the stick. They found a stick that was broken in two. Again, this evidence was not disputed. The Applicant, again, conceded to hitting her with another object, not the broomstick. In other words, he is not disputing that he in fact assaulted the learner. Couple with the evidence of another learner, Leathin Visagie, who saw the incident and remained firm under cross-examination on this aspect, I have no difficulty in finding the Applicant guilty of Charge 1.
65. On Charge 2, it was testified by Mr. Wagenaar that a learner by the name of Angelo Heyns told him that the Applicant kicked him. It was not disputed that Mr. Wagenaar could not have seen scruff marks on Angelo’s legs as no kicking occurred. Another learner, Douglas van Beulen testified that he saw the Applicant kicking Angelo.
66. The Applicant responded to this allegation by stating that he stepped forward to hand Angelo an intervention letter and that Angelo tripped over his leg when he did so. It is very difficult to accept this evidence of the Applicant. It is unlikely that the learner, who according to him was running out of the class, would have ran straight into him, thereby tripping himself in the process. In does not make any sense. At the very least, the Applicant deliberately stepped forward or kicked the learner, thus causing scratch marks on his legs as was seen by Mr. Wagenaar. The Applicant is therefore also guilty on Charge 2.
67. With regards to Charge 3, it was testified by Douglas van Beulen that the Applicant threw a book in his face. Whether it was dictionary or a book is in my view irrelevant. If true, it constitutes assault. Douglas was very staunch in his evidence that he was not lying when he stated that the Applicant threw a dictionary at him and that it hit him on the left cheek. Similarly, Leathin Visagie remained consistent throughout his evidence that the dictionary hit Douglas in the face. The Applicant testified that the book actually landed on the desk. But when the two learners testified on this aspect, this was never put to them. Rather, it was said that they are trying to exaggerate the assault by stating it was a dictionary because the dictionary is thicker than a book. There was no substantive challenge to their version of events. I thus also find the Applicant guilty on Charge 3.
68. In relation to Charge 4, two learners confirmed that the Applicant referred to them as “die Kaap se kakste goed” and that they must “gaan vrek julle bobbejane”. Kaisha Arends and Kayleen September, when questioned several times on the wording that was used, remained firm that those were the words used by the Applicant. His response that he said “twak goed” was never put to these learners to respond to. In any event, the Applicant, when asked, failed to adequately respond to the context in which he would use the words “twak goed”.
69. The Applicant tried to explain that he was quoted out of context regarding the use of the word “bobbejane, but again, this version was also never put to the learners making these allegation. All he said was that the principal instigated them to bring the complaints against him. On the balance of probabilities therefore, I also find the Applicant guilty on this charge.
70. Three learners testified on Charge 5 and they were all consistent in stating that the Applicant called Meagan Abrahams a prostitute. They all explained what they understood the word to mean. The Applicant on the other hand, stated that he actually used the word “prothetics”. This word he used according to him, because the learners were always talking in class. The evidence given by Meagan Abrahams on this aspect left her very emotional. She was assisted by a social worker and it took a long time for her to finalize her testimony because she kept on crying.
71. In my view, had the Applicant used the word prosthetics, it would not have triggered such an emotional response from the learner. Unless of course something took time to train her to cry at that point. All three learners did not waiver under cross-examination. They stood firm that the words prostitute was used by the Applicant towards Meagan. Meagan herself, despite the emotional experience involved, she stuck to her guns during cross-examination. The evidence thus led on this issue and the credibility of the witnesses sways heavily in favour of the Respondent. I thus find the Applciant guilty on Charge 5.
72. A lot of evidence was led at this arbitration by the Applicant on an alleged conspiracy by the principal of the school against the Applicant in an attempt to get rid of him. Yet the evidence that was led at this arbitration does not convince me of such a conspiracy. The Applicant made bare allegations without substantiating the allegations or by submitting credible evidence thereon.
73. The evidence by both Mr. Wagenaar and Ms. Moses, the principal, was that they actually tried to assist the Applicant to apply discipline effectively. Mr. Swanepoel, the circuit manager, testified that he went to great lengths to ensure that there were good relations between the Applicant and the principal, but he did not succeed. Admittedly, the Applicant must have been under pressure because it was testified that the Grade learners were generally ill-disciplined, so his task could not have been an easy one. But Mr. Wagenaar’s evidence that the same learners had very little behavioural problems in other classes and this was not seriously challenged.
74. The Applicant also testified that part of the conspiracy was for the principal to incite learners to lay complaints against him. All the learners to which such allegation was made denied it. Without more, I cannot come to the conclusion that she did so.
75. The Applicant also alleged that other educators made themselves guilty of assault, but did not submit any evidence of this at the arbitration. I cannot consider any evidence not placed before me at the time of the arbitration. Also, closing arguments may only deal with the evidence already led and cannot introduce new evidence not dealt with and responded to by the other party.
76. The learners that made the complaints that led to the charges against the Applciant also did not all complain to the principal directly. In some instances she only heard of the incidents after the fact. In one instance the allegation against the Applicant stemmed from an investigation into another incident. Tried as I have, I could not find a discernable trace of a deliberate strategy to conspire against the Applicant. His allegation of such must thus be rejected and the guilty findings on all charges must therefore stand.
77. This brings me to the issue of whether the sanction was appropriate under the circumstances. The allegation against the Applicant is of an extremely serious nature and in breach of the Act quoted in the Charges but also of the South African Schools Act, which in Section 10 thereof prohibits corporal punishment and assault on learners.
78. Also to refer to a learner as a prostitute is extremely unacceptable and inappropriate. The effect of what such conduct could have on a young child was evident in this arbitration.
79. The Applicant was also disciplined previously for acts of assault twice in 2014 and 2015 for which he was issued final written warnings. Even in the absence of that, it is my view that the charges the Applicant was found guilty of is sufficient to warrant the sanction of dismissal. I thus find the sanction to be appropriate and the dismissal was substantively fair.
80. In the premise therefore, I make the following award:
AWARD
81. The dismissal of the Applicant, Mr. Christiaan Bester Kruger by the Respondent, the Head of Department, Western Cape Education Department, was substantively fair.
82. The Applicant is not entitled to any relief.
Signature:
Commissioner: Samuel Baron
Sector:
Province: Western Cape
Applicant: Naptosa obo Kruger, CB
Respondent: HOD: Western Cape Education Department
Issue: Unfair Dismissal - Misconduct
Award Date: 9 May 2018
Arbitrator: Oudsthoorn.
Case Number: PSES781-16/17WC
Commissioner: Samuel Baron
Date of Award: 9 May 2018
In the ARBITRATION between
NAPTOSA OBO KRUGER, CB
(Union/Applicant)
And
HOD: WESTERN CAPE EDUCATION DEPARTMENT
(Respondent)
Employee’s representative: Mr Faiez Tassiem
Applicant’s address: 6 Park Road
Rondebosch
Cape Town
8001
Telephone: 021 686 8521
Telefax: 021 689 2998
E-mail:
Employer’s representative: Mr Solminic Joseph
Respondent’s address: 17th Floor, Golden Acre Building
Lower Parliament Street
Cape Town
8001
Telephone: 021 467 2898
Telefax: 021 425 8612
E-mail:
DETAILS OF HEARING AND REPRESENTATION
1. This arbitration ran for three days (16-18 April 2018) and was finalized on 18 April 2018 at the offices of the Respondent in Oudsthoorn. The parties requested 7 days in which to submit written closing arguments and they duly obliged.
2. The Applicant, Mr. Christiaan Kruger, was only present on the last day of the arbitration (the 18th) but was represented throughout the proceedings by Mr, Faiez Tassiem, an official from the trade union NAPTOSA, of which the Applicant is also a member.
3. The Respondent, Western Cape Education Department, was represented by Mr. Solminic Joseph, its Labour Relations Officer.
4. The proceedings were digitally recorded and Mr. Daniel Kova provided intermediary as well as interpretation services. The services of two Social Workers, Mess. Engela Swarts and Maritsa Lindeque were also employed to provide assistance to two of the learners.
ISSUE TO BE DECIDED
5. I am required to determine whether the Applicant’s dismissal was substantively fair and if not, determine the appropriate remedy.
BACKGROUND TO THE DISPUTE
6. The Applicant was employed by the Respondent as an educator at Dysselsdorp Secondary School.
7. His dismissal was confirmed by the MEC for Education, Ms. Debbie Schafer, upon appeal to her on 27 January 2017.
8. The Applicant faced the following five charges of misconduct, which I will write down as it is. I will however elaborate the English versions in my summary and analysis of evidence.
Klag 1 “Daar word beweer dat u skuldig is aan wangedrag ingevolge Artikel 18 (1) (r) van die Wet op indiensneming van Opvoeders, No 76 van 1998, (hierna genome die Wet) deurdat u gedurende Februarie 2016 en/of Mei 2016, leerder “A”, ‘n grad 8 leerder verbonde aan Dysselsdorp Sekondere Skool aangerand het deur:
(a) Haar met ‘n klip op die voet te gooi en/of
(b) Haar met ‘ stok oor die liggaam te slaan.
Klag 2 “Daar word beweer dat u skuldig is aan wangedrag ingevolge Artikel 18 (1) van die Wet deurdat u gedurende Mei 2016, leerder “B”, ‘n grad 8 leerder verbonde aand die Dysselsdorp Sekondere Skool aangerand her deur hom teen die been te skop
Klag 3 “Daar word beweer dat u skuldig is aan wangedrag ingevolge Atikel 18 (1) (r) van die Wet deurdat u op of omtrent 22 April 2016, leerder “C”, ‘n graad 8 leerder verbonde aan Dysselsdorp Sekondere Skool aangerand het deur:
(a) Hom met ‘n boek in sy gesig te gooi, en/of
(b) Hom uit sy bank geruk het
Klag 4 “Daar word beweer dat u skuldig is aan wangedrag ingevolge Artikel 18 (1) (q) van die Wet deurdat u gedurende die eerste en/of tweede kwartaal van 2016, onderwyl aan diens, up op ‘n onbehoorlike, skandalige of onaanvaarbare wyse gedra het, deurdat u teenoor leerders verbonde aan Dysselsdorp Sekondere Skool woorde met min of meer die volgende betekenis geuiter het
(a) “Julle is die Kaap se kakste goed”
(b) “Gaan vrek julle bobbejane”
Klag 5. Daar word beweer dat u skuldig is aan wangedrag ingevolge Artikel 18 (1) (q) van die Wet deurdat u gedurende Julie 2016 u op ‘n onbehoorlike, skandalige of onaanvaarbare wyse gedra het, deurdat u teenoor leerder “D” verbonde aand die Dysselsdorp Sekondere Skool woorde met min of meer die volgende betekenis geuiter het:
(a) “sy is ‘n prostituut”, en/of
(b) “gaan sit in die hoek prostituut”
9. The Applicant requested me to order compensation in the event I find in his favour.
SURVEY OF EVIDENCE AND ARGUMENT
10. The Respondent submitted a bundle of documents and called ten witnesses to testify in support of its version. The Applicant testified himself.
Respondent’s case
11. Mr. Chris Swanepoel testified that he is employed as the circuit manager for the circuit in which the Applicant was teaching. He testified that he received several complaints from the Institutional Management and Governance Manager as well as the principal from the school, Ms. Moses, regarding the Applicant. He was also copied in a lot of communication by the Applicant. He tried to resolve some of the complaints.
12. Mr. Swanepoel testified further that there are certain protocols in place when dealing with complaints depending on the seriousness thereof. He explained that in the instance that a learner complaints against a teacher, such complaint would be investigated by the labour relations office and not himself. He also stated that when an educator has a complaint against the principal, such teacher would take it up directly with the principal and when it is not resolved, should be escalated to him as the circuit manager. If necessary, the intervention of the district office will also be sought. When the educator accuses the principal of misconduct, he mentioned, he will do a formal investigation and report it to the district director.
13. According to Mr. Swanepoel, the relationship between the Applicant and the principal, Ms. Moses was not good and that it was one of the first things he had to try and resolve when he assumed the position. He stated that the principal also tried to resolve it herself, but she failed. Finally, Mr. Swanepoel stated that there is no discretion on himself not to investigate a complaint about an educator nor does the principal has a discretion not to refer a complaint from a learner for investigation.
14. Apart from certain pertinent factors, I do not wish to restate all the issues that was raised by Mr. Tassiem in cross-examination. It was put it to Mr. Swanepoel that the Applicant referred several complaints about the principal to him, one of which was that the Grade 11’s were being taught the Grade 12 curriculum. Mr. Swanepoel responded that the Applicant was not a subject specialist and that when he (Mr. Swanepoel) sent in a subject specialist, the subject specialist could not find anything wrong with how the curriculum was being taught.
15. Another complaint that the Applicant had according to Mr. Tassiem was that the Applicant was a Physics Educator, but had to teach Life Sciences at the school. Mr. Swanepoel responded that the Applicant applied for the Life Sciences position at the school and as such was utilized to teach the subject and that it was in no way as a means to punish him for the complaints he lodged against the principal.
16. Megan Abrahams testified that she was taught Natural Sciences by the Applicant in Grade 8 and that he never gave them work to do, but always requested them to write the whole text book down. During the time he gave her class, he called her a prostitute. She understands the word to mean someone who sells her body.
17. She testified further that two other learners, Androlene and Shaun, also heard him saying that because he spoke loudly. She mentioned that she did not tell the principal herself about the incident, but that Shaun told her when she passed by the classroom. She insisted that she did hear the Applicant correctly and that he did say that she was a prostitute.
18. Meagan agreed under cross-examination that they talked a lot in class but denied that the Applicant used the word “prosthetics” instead of prostitute.
19. Androlene Esau testified that she was also taught Natural Sciences by the Applicant. She stated that the situation in the Applicant’s class was chaotic because the Applicant, when they wanted to talk to him, told them that he already gave them work the previous day.
20. She stated that she heard the Applicant telling Meagan Abrahams to “go sit in the corner prostitute”. She mentioned that she sat next to Meagan in class in the second row from behind and she could hear the word being uttered. According to her, everyone could hear the Applicant saying that. She mentioned that Meagan felt bad and started crying.
21. She mentioned further that the Applicant also previously told them that they are “die Kaap se kakste goed” (you are the shittiest things in the Cape). She testified that she felt very bad about that. She also reiterated that did not hear wrong and that the Applicant did call Meagan a prostitute.
22. Androlene denied under cross-examination that they were told by the principal to report the Applicant if he ever did something wrong. She further denied that the Applicant used the prosthetics instead of prostitute.
23. Shaun Arendse testified that he was also taught Natural Sciences by the Applicant. He testified that the Applicant told Meagan Abrahams to “go sit in the corner you prostitute”. He heard him saying that because he was sitting behind her in the class at the time. Shaun testified that he understood the word prostitute to mean someone who sells her body. He stated that Megan started crying after that. He also mentioned that he called the principal when she passed their classroom and told her about the incident.
24. Shaun stated further that the children made noise in the Applicant’s class because he did not give them work. He would always tell them that they must write down the whole text book and he would then play computer games behind his desk. According to him, the Applicant would sometimes put chalk in his ears when the children made too much noise.
25. Shaun strongly denied that the Applicant used the word prosthetics and also that the principal informed them to tell her when the Applicant would do something wrong.
26. Douglas van Beulen testified that on a particular day, he wanted to cut a page from a book when the Applicant threw a dictionary at him and that the dictionary hit him in the face on his left cheek. This incident was observed by another learner by the name of Leathin Visagie. He stated that he had the scissors in his right hand, but the cleaning lady by the name of Koba went to inform the principal that he wanted to stab the Applicant. He however did not want to stab the Applicant.
27. According to Douglas, the Applicant treated him this way because he testified against him two years ago. He stated that the Applicant also told them that if he was their parents he would lay on them until they suffocated and died.
28. Douglas also testified that he noticed that there was a problem between the principal and the Applicant because when she was in their classroom once he made funny faces behind her back. He however denied that she told them to tell her when the Applicant would do something wrong. He also denied that it was a book that was thrown at him but insisted it was a dictionary.
29. He also mentioned that the Applicant kicked another learner, Angelo Heyns, on the right leg. He did not hear what it was about, but he saw the Applicant kicking Angelo.
30. It was put to Douglas during cross-examination that the Applicant threw a textbook at him and not a dictionary and the only reason he mentioned a dictionary was to make it look worse because a dictionary is thicker. He denied it and confirmed it was a dictionary.
31. Leathin Visagie testified to confirm that the saw the Applicant throwing a dictionary at Douglas van Beulen. He was sitting in the same row as Douglas when it occurred. He stated that the Applicant also pulled Douglas out of his desk. According to him, the Applicant went back to Douglas and hit him with a bag.
32. Leathin testified further that the Applicant told them that their mothers should have laid on them at birth. According to him, he also saw the Applicant hit a learner by the name of Mochelle Heyns with a broomstick. Leaton denied that Douglas was thrown with a book by the Applicant when this was put to him during cross-examination. He maintained it was a dictionary.
33. Kaisha Arends testified that she was also taught Natural Sciences by the Applicant in Grade 8. She stated that the Applicant said in class “julle is die Kaap se kakste goed”. She mentioned that he also said that they were baboons who stand on a bridge and that their parents should have laid on them when they were small. She was of the view that he said this because she had repeated Grade 8. She stated that she felt very bad because of the words uttered by the Applicant.
34. Kaisha mentioned that she and the other learners in the Applicant’s class made a lot of noise because he did not give them work, but was rather played computer games during class. It was also put to her that they were prompted by the principal to lay complaints against the Applicant, but she denied this and reiterated that she was very sure that he said those words.
35. Kaylene September testified that when she received class from the Applicant in Grade 8, he did not give them work, but told them to write down the whole text book. She testified further that the Applicant told her that she has a stupid principal’s face, that she must stand on a bridge and fall to death and that they are stupid baboons. According to her, these words were overheard by Kaisha Arends.
36. Mr. Marius Wagenaar testified that he is the Deputy Principal of Dysselsdorp and that he is responsible for the effective functioning of the school. He is also the second in charge of the school. He also has to make sure that the Curriculum is implemented and that the statistics in relation to the Curriculum is released. He has oversight over the Head of Departments.
37. Mr. Wagenaar testified further that in the event a learner is accused of serious misconduct, it must be referred to the School Governing Body, who will investigate such matters.
38. According to Mr. Wagenaar, he had to go to the Applicant’s class several times to request him to silence the children and that he would find him behind his desk on the computer. He mentioned that the same learners would be quiet in the other classes.
39. He testified further that two learners, Mochelle Hans and Angelo Heyns came to him to complain about the Applicant. Mochelle told him that the Applicant hit her with a broomstick and Angelo complaint that the Applicant kicked him. He saw the red marks on Mochelle’s arm as well as the marks on Angelo’s legs. He had no reason not to believe either of the two learners.
40. Mr. Wagenaar stated further that he approached the Applicant about the complaints and the Applicant confirmed that he did hit Mochelle, but that it was with something that can break.
41. Mr. Wagenaar testified further that the Applicant did not like the principal and that they always differed on things. The Applicant according to him once uttered the words “you and the fucking principal are not in charge of the school”.
42. During cross-examination, Mr. Wagenaar denied that the principal was on a crusade against the Applicant.
43. Ms. Mercia Moses testified that she was appointed principal of the school in 2008. She testified further on Charge 1 that she passed the Applicant’s class and found a learner sitting outside his class. He informed her that the learner was using bad language in the class. When she confronted the learner, Mochelle Hans, Mochelle told her that the Applicant threw her with a stone on her foot and that was the reason she used the bad language. She went into the Applicant’s class and Mochelle identified the rock in the classroom. Mochelle then related the incident in front of her mother and the Applicant the next day. The Applicant responded that it was not a rock but a piece of paper that was under his desk which he threw at her.
44. Ms. Moses testified further that another incident involving the same learner occurred, it was alleged that the Applicant hit her with a broomstick. He reported this to the labour relations office to Mr. Wagenaar. Also, the matter involving Angelo Heyns also happened when Mr. Wagenaar was in charge of the school and she also reported this matter.
45. She stated further that the incident involving Douglas van Beulen was reported to her by Douglas himself. She became aware of the incident when the cleaning lady approached her to tell her that Douglas wanted to stab the Applicant with a scissors. She requested the Applicant to put in writing so that the matter could be investigated by the SGB (School Governing Body), but he never did. She referred the matter to the SGB anyway and their finding was that there was no proof that the learner wanted to stab the Applicant.
46. With regards to Charge 4, Ms. Moses testified that this incident came to her attention through an investigation that was done by the Department. It was never reported to her. On the charge relating to Meagan Abrahams being allegedly called a prostitute, Ms. Moses testified that she was told by one of the learners in the class.
47. Ms. Moses mentioned further that she had no discretion not to report any allegation of serious misconduct by an educator involving hitting a learner and any type of abuse.
48. She also stated that the Applicant’s class is very close to her office and she always heard a noise there. She once decided to go and have a look and the Applicant informed her that the learners were very rude. She informed him that he must follow the specific intervention system that were in place and report learners that misbehave. He never followed this process.
49. Ms. Moses stated further that the Applicant, when confronted with the discipline issues of the learners in his class, would always jump up and responded to her in a disrespectful manner. He once referred to her as a “stuk kak” and a “slet”.She did not take the matter further because it would happen in front of the children and she did not want to subject the learners to disciplinary hearings. She denied that she ever made the learners gang up against the Applicant.
50. Ms. Moses denied that the relationship soured since 2014 because the Applicant wrote her an e-mail to inform her that she failed in her task of disciplining the learners at the school. It was put to her that she took it personal, which she denied. She stated that the Applicant never did his part in effectively disciplining his learners.
Applicant’s case
51. The Applicant, when asked to respond to the allegations in Charge 1 (a), testified that there was a huge discipline problem at the school. He stated that he did not throw a rock at the learner, but rather a cardboard.
52. With regards to Charge 1 (b), the Applicant testified that he did not hit the learner with a stick but he hit the stick on the desk and the learner then took the incident forward. He only used a piece of veneer, he testified.
53. The Applicant further testified on Charge 2 that the learner, Angelo Heyns, left the school and that his parents were not interested in having him testified here. He stated that he attempted to hand Angelo an intervention letter, but as he came forward, Angelo tripped over his feet, so it was not a deliberate act.
54. He testified further that in relation to Charge 3, he did not throw a dictionary at the learner because there were no dictionaries in his class, which was a Natural Sciences class. He actually threw a book at the learner and it landed on the learner’s desk, not in his face. If he threw a dictionary at the learner, there would have been a mark on his face, but there was none. Also, he could not have pulled the learner out of his desk because there were no desks, it was a laboratory.
55. The Applicant mentioned that on Charge 4, he believed that his words were taken out of context. He never said they were “die Kaap se kakste goed”, but rather that they were “twak goed”. He also mentioned that he, as a Natural Science educator, discussed the food chain with the learners and informed them that the baboons would die if they do not hunt for food. He did not refer to the learners as baboons.
56. The Applicant further denied that he just sat behind his desk playing computer games. He stated that if he was the only educator who did not do his work, the whole school would not have performed badly.
57. The Applicant stated further that he lodged a grievance but nothing was done about it. All his complaints regarding the discipline at the school fell on deaf ears. His response on Charge 5 was that he never put learners in a corner. According to him, Meagan constantly talked and he told her that she was like a prosthetics hand, always talking.
58. The Applicant testified that he was the only educator who taught all the Grade 8’s. This he felt amounted to victimization by the principal. All of this, he says, was because of the e-mail he send in 2014 regarding the discipline at the school. He also mentioned an incident where he applied to mark the examination papers of the Life Sciences, but five minutes before the close of the school for the Easter Holidays in 2014, the principal informed him that she was not going to sign his application. He was the only educator whom she ever refused. He never marked examination papers again after that.
59. According to the Applicant, the only reason these charges were put against him is because the principal wanted him gone. She gave the learners candy and she wanted to get the white man away from the school.
60. The Applicant came under severe cross-examination but I do not wish to repeat everything that was dealt with there, but will refer to some pertinent aspects in my analysis.
ANALYSIS OF EVIDENCE AND ARGUMENT
61. It is trite law that a dismissal must be procedurally and substantively fair. In other words, a fair reason must exist for the dismissal and the dismissal must be effected in accordance with a fair procedure (see section 188 of the Act).
62. The Applicant did not place procedural aspects in dispute and I must therefore determine from the evidence whether a fair reason existed for the Applicant’s dismissal from the Respondent’s employ. In doing so, I have to determine whether the Applicant is guilty of the charges proffered against him and whether the sanction was appropriate under the circumstances.
63. I will first deal with Charge 1. Mr. Tassiem urged me to ignore the evidence on this charge because it amounted to hearsay evidence. I will respectfully decline that invitation. Whilst it is true that the learner, Mochelle Hans, did not testify in person due to circumstances beyond the control of the Respondent, I cannot simply ignore the evidence that was led on this charge by the principal and the response of the Applicant in relation to that. There was no challenge to the principal’s evidence that Mochelle repeated her version that she was thrown with a stone in front of the Applicant as well as her parent and that she went to identify the stone in the Applicant’s classroom. The Applicant admitted that he threw her with cardboard. The principal was present when the stone was identified. I tend to lean towards the version of the Respondent in this regard. The Applicant did threw the learner with something. In my assessment, there is sufficient evidence to conclude on a balance of probabilities that she was assaulted with an object.
64. On the second part of the charge, Mochelle Hans again did not testify, but Mr. Wagenaar testified on this aspect and mentioned that he observed the scuff marks on her arms and that he and the Applicant went to look for the stick. They found a stick that was broken in two. Again, this evidence was not disputed. The Applicant, again, conceded to hitting her with another object, not the broomstick. In other words, he is not disputing that he in fact assaulted the learner. Couple with the evidence of another learner, Leathin Visagie, who saw the incident and remained firm under cross-examination on this aspect, I have no difficulty in finding the Applicant guilty of Charge 1.
65. On Charge 2, it was testified by Mr. Wagenaar that a learner by the name of Angelo Heyns told him that the Applicant kicked him. It was not disputed that Mr. Wagenaar could not have seen scruff marks on Angelo’s legs as no kicking occurred. Another learner, Douglas van Beulen testified that he saw the Applicant kicking Angelo.
66. The Applicant responded to this allegation by stating that he stepped forward to hand Angelo an intervention letter and that Angelo tripped over his leg when he did so. It is very difficult to accept this evidence of the Applicant. It is unlikely that the learner, who according to him was running out of the class, would have ran straight into him, thereby tripping himself in the process. In does not make any sense. At the very least, the Applicant deliberately stepped forward or kicked the learner, thus causing scratch marks on his legs as was seen by Mr. Wagenaar. The Applicant is therefore also guilty on Charge 2.
67. With regards to Charge 3, it was testified by Douglas van Beulen that the Applicant threw a book in his face. Whether it was dictionary or a book is in my view irrelevant. If true, it constitutes assault. Douglas was very staunch in his evidence that he was not lying when he stated that the Applicant threw a dictionary at him and that it hit him on the left cheek. Similarly, Leathin Visagie remained consistent throughout his evidence that the dictionary hit Douglas in the face. The Applicant testified that the book actually landed on the desk. But when the two learners testified on this aspect, this was never put to them. Rather, it was said that they are trying to exaggerate the assault by stating it was a dictionary because the dictionary is thicker than a book. There was no substantive challenge to their version of events. I thus also find the Applicant guilty on Charge 3.
68. In relation to Charge 4, two learners confirmed that the Applicant referred to them as “die Kaap se kakste goed” and that they must “gaan vrek julle bobbejane”. Kaisha Arends and Kayleen September, when questioned several times on the wording that was used, remained firm that those were the words used by the Applicant. His response that he said “twak goed” was never put to these learners to respond to. In any event, the Applicant, when asked, failed to adequately respond to the context in which he would use the words “twak goed”.
69. The Applicant tried to explain that he was quoted out of context regarding the use of the word “bobbejane, but again, this version was also never put to the learners making these allegation. All he said was that the principal instigated them to bring the complaints against him. On the balance of probabilities therefore, I also find the Applicant guilty on this charge.
70. Three learners testified on Charge 5 and they were all consistent in stating that the Applicant called Meagan Abrahams a prostitute. They all explained what they understood the word to mean. The Applicant on the other hand, stated that he actually used the word “prothetics”. This word he used according to him, because the learners were always talking in class. The evidence given by Meagan Abrahams on this aspect left her very emotional. She was assisted by a social worker and it took a long time for her to finalize her testimony because she kept on crying.
71. In my view, had the Applicant used the word prosthetics, it would not have triggered such an emotional response from the learner. Unless of course something took time to train her to cry at that point. All three learners did not waiver under cross-examination. They stood firm that the words prostitute was used by the Applicant towards Meagan. Meagan herself, despite the emotional experience involved, she stuck to her guns during cross-examination. The evidence thus led on this issue and the credibility of the witnesses sways heavily in favour of the Respondent. I thus find the Applciant guilty on Charge 5.
72. A lot of evidence was led at this arbitration by the Applicant on an alleged conspiracy by the principal of the school against the Applicant in an attempt to get rid of him. Yet the evidence that was led at this arbitration does not convince me of such a conspiracy. The Applicant made bare allegations without substantiating the allegations or by submitting credible evidence thereon.
73. The evidence by both Mr. Wagenaar and Ms. Moses, the principal, was that they actually tried to assist the Applicant to apply discipline effectively. Mr. Swanepoel, the circuit manager, testified that he went to great lengths to ensure that there were good relations between the Applicant and the principal, but he did not succeed. Admittedly, the Applicant must have been under pressure because it was testified that the Grade learners were generally ill-disciplined, so his task could not have been an easy one. But Mr. Wagenaar’s evidence that the same learners had very little behavioural problems in other classes and this was not seriously challenged.
74. The Applicant also testified that part of the conspiracy was for the principal to incite learners to lay complaints against him. All the learners to which such allegation was made denied it. Without more, I cannot come to the conclusion that she did so.
75. The Applicant also alleged that other educators made themselves guilty of assault, but did not submit any evidence of this at the arbitration. I cannot consider any evidence not placed before me at the time of the arbitration. Also, closing arguments may only deal with the evidence already led and cannot introduce new evidence not dealt with and responded to by the other party.
76. The learners that made the complaints that led to the charges against the Applciant also did not all complain to the principal directly. In some instances she only heard of the incidents after the fact. In one instance the allegation against the Applicant stemmed from an investigation into another incident. Tried as I have, I could not find a discernable trace of a deliberate strategy to conspire against the Applicant. His allegation of such must thus be rejected and the guilty findings on all charges must therefore stand.
77. This brings me to the issue of whether the sanction was appropriate under the circumstances. The allegation against the Applicant is of an extremely serious nature and in breach of the Act quoted in the Charges but also of the South African Schools Act, which in Section 10 thereof prohibits corporal punishment and assault on learners.
78. Also to refer to a learner as a prostitute is extremely unacceptable and inappropriate. The effect of what such conduct could have on a young child was evident in this arbitration.
79. The Applicant was also disciplined previously for acts of assault twice in 2014 and 2015 for which he was issued final written warnings. Even in the absence of that, it is my view that the charges the Applicant was found guilty of is sufficient to warrant the sanction of dismissal. I thus find the sanction to be appropriate and the dismissal was substantively fair.
80. In the premise therefore, I make the following award:
AWARD
81. The dismissal of the Applicant, Mr. Christiaan Bester Kruger by the Respondent, the Head of Department, Western Cape Education Department, was substantively fair.
82. The Applicant is not entitled to any relief.
Signature:
Commissioner: Samuel Baron
Sector: