Case Number: PSES12-18/19
Applicant: BALOYI M.P
Respondent: Department of Education Limpopo
Issue: Unfair Dismissal - Misconduct
Venue: Mogalakwena District, Limpopo Province.
Award Date: 29 June 2018
Arbitrator: MN Masetla
Commissioner: MN Masetla
Case number: PSES12-18/19
Date of the award: 29 June 2018
In the arbitration between
BALOYI M.P EMPLOYEE
DEPARTMENT OF EDUCATION- LIMPOPO EMPOYER
THE DETAILS OF THE HEARING AND REPRESENTATION
1. This is the award in the arbitration between Baloyi M.P, the employee and Department of Education-Limpopo, the employer held at Department of Education- Polokwane
2. The arbitration was held under the auspices of the Education Labour Relations Council in terms of section 191(5)(a) of the Labour Relations Act 66 of 1995 as amended (LRA) and the award is issued in terms of Section 138(7) of the LRA.
3. The applicant was present and represented by Mr Thamaga M.P, an official from SADTU, a Trade Union.
4. The respondent was represented by Mr Nyathela N.E, Deputy Director Labour Relations.
5. The proceedings were mechanically recorded.
6. Mr Nyathela requested that the arbitration proceedings be postponed in order to secure the attendance of the complainant, a key witness, Ms Machaba R. He stated that this key witness retired and could not be located as advised by the District Office. The prospects of finding this witness were not there. He further stated that the two learners who were witness in the disciplinary hearing could also not be located. The two learners were alleged to have witnessed the applicant, a principal, fiddling with the teacher’s (complainant) breasts.
7. Mr Thamaga, on behalf of the applicant, opposed the postponement application. He stated that a number of witnesses were secured with a view to proceeding with the case. The respondent had ample time to find its witnesses after the notice of set-down was set on 08 May 2018. The applicant would thus be prejudiced.
8. Having heard the respondent’s basic for requesting that the arbitration proceedings be postponed, the application was not granted. The reasons for declining the application was that the respondent failed to locate its witness .The District Office confirmed that the prospects of locating the witnesses were non – existent. If those prospects were not there, it could thus be prejudicial to the applicant to adjourn the proceedings.
ISSUE TO BE DECIDED
9. I have to decide whether or not the applicant’s dismissal was fair.
10. To order appropriate relief.
BACKGROUND TO THE ISSUE IN DISPUTE
11. The applicant was employed as a Principal at Marcus Masebe Primary School, Mapela Circuit in Mogalakwena District, Limpopo Province.
12. He was charged and dismissed for contravening the provisions of Section 17 (1) (d) and 18 (1) (f ) of the Employment of Educators Act 76 of 1998 in that he fiddled the breasts of Ms Machaba M.R and committed an act of sexual assault .He further assaulted an educator, Ms Machaba M.R. Those two incidents took place on 16 November 2015. The disciplinary hearing took place on 28 July and 31 August 2017.
13. The applicant appealed to the MEC, Limpopo Department of Education on 06 March 2018, the MEC dismissed his appeal on 28 March 2018 and the applicant dismissed on 12 October 2017.
14. He referred an unfair dismissal dispute to the ELRC. The dispute could not be settled during conciliation on 20 April 2018.Both parties signed a pre – arbitration minute on 20 April 2018 .The applicant thus requested that the dispute be resolved through arbitration.
ANALYSIS OF EVIDENCE AND ARGUMENTS
15. Mr Nyathela M.E stated that he could not proceed with the case due to the unavailability of his witnesses.
16. Mzamane Piet Baloyi stated under oath that, until his dismissal on 12 October 2017, he was the Principal at Marcus Masebe Primary School for 18 years. He stated that he did not fiddled with Ms Machaba R‘s breasts and neither did he assault her. He stated that Ms Machaba R was a difficult teacher to work with.
17. In November 2015, while checking educators’ files at the school, he found that Ms Machaba R was one of the educators turning 60 in April 2016. He spoke to her about this issue. She then said that she wanted to go and enquire about the retirement process to follow at the circuit office. She then requested him to give her permission letter to visit the circuit office. He then gave her the letter on page 41 of the employer’s bundle. He went to her class and gave her the letter. After reading the letter she denied even the instructing him to write the letter. She then threatened him with witchcraft and told him that she is connected in the province. He then went to his office. Ms Machaba R followed him to his office and told him that she is going to the Circuit Manager.
ANALYSIS OF EVIDENCE AND ARGUMENTS
18. This is a dismissal dispute within the contemplation of Section 191(a) of the LRA. In terms of Section 192(1) of the LRA, the applicant bore the onus of establishing the existence of his dismissal. The respondent’s Mr Nyathela N.E, confirmed that indeed the applicant was dismissal. Mr Thamaga stated that the procedural fairness of the dismissal is not in dispute. Accordingly, the respondent was required to prove the substantive fairness of the dismissal.
19. As I indicated in this award, the respondent was unable to secure its witnesses who are alleged to be untraceable as per the respondent’s District Office. Consequently, the respondent was unable to present its version.
20. The applicant‘s version was that he did not fiddled with the breast of the former teacher, Ms Machaba M.R, neither did he assault her. He testified that Ms Machaba M.R was a difficult teacher to work with. He was previously land a complaint against her with the Circuit Manager about her behaviour .Given this unchallenged version, it is my finding that the applicant’s dismissal was substantively unfair. I have no reason not to order that the applicant he reinstated to his position without any loss of pay. At the time of the dismissal, the applicant was earning R45 286.50 per month. The payment of the applicant’s salary was stopped with effect from 23 March 2018. As a result, the outstanding salary due to the applicant’s R135 859.50 (R45 286.50 X 3 = R135 859.50) which is equivalent to three (3) months salary.
21. The dismissal of the applicant, M.P Baloyi, by the respondent, the Department of Education, Limpopo is substantively unfair.
22. The respondent is hereby ordered to reinstate the applicant to his position as Principal of Marcus Masebe Primary School from 09 July 2018.
23. The respondent is ordered further to pay the applicant an amount of R135 859.50 in respect of the outstanding salaries for the period of 3 (three) months.
24. The respondent must attend to 21 and 22 above, within 10 days of receipt of this award.
25. The applicant must report for work at Marcus Masebe Primary School on 09 July 2018 at 7H00 am, together with a copy of this award.
Panellist: MN Masetla