Case Number: PSES 643-17/18EC
Province: Eastern Cape
Applicant: Gladman Wandile Aba
Respondent: Department of Education Eastern Cape
Issue: Unfair Dismissal - Misconduct
Venue: District Office of Department of Education, Port Elizabeth
Award Date: 2 May 2019
Arbitrator: Hadley Saayman
Case Number: PSES 643-17/18EC
Panelist: Hadley Saayman
Date of Award: 02 May 2019
In the ARBITRATION between
Gladman Wandile Aba
Department of Basic Education – Eastern Cape
Applicant’s representative: Ms Louis Bain
Applicant’s address: P.O Box 27028
Telephone: 041 363 6044
Respondent’s representative: Ms Hendreina Stucki
Respondent’s address: Private Bag X0032
Telephone: 041 403 4585
DETAILS OF HEARING AND REPRESENTATION
1. This matter was set down for arbitration in terms of section 191(5)(a)(iv) of the Labour Relations Act (LRA) for 17 April 2019 at the District Office of Department of Education, Port Elizabeth. Applicant was represented by Ms Louis Bain, an Attorney from Kaplan Blumberg Attorneys and the Respondent was represented by Ms Hendriena Stucki, a Senior Labour Relations Officer. The hearing was digitally recorded.
ISSUE TO BE DECIDED
2. I am required to determine whether or not the Respondent committed an unfair labour practice as contemplated in terms of Section 186(2)(b) of the LRA in respect of an alleged unfair disciplinary action against the Applicant relating to misconduct and issued a sanction to the Applicant of a final written warning and a R5000.00 fine.
BACKGROUND TO THE ISSUES
3. The Applicant is permanently employed as a School Principal at Swartkops Primary School.
4. The Applicant was charged with contravention of inter alia:
I. Section 18(1) (a) of the Employment of Educators’ Act 76 of 1998, as amended, in that on or about June 2015 he sexually harassed his colleague, Mrs Loxton , when he allegedly made unwanted physical contact, which among other things include indecent exposure of his genitals and made sexual advances by proposing that she must have sexual intercourse with him.
Alternatively Section(1) (q) of the Employment of Educators’ Act 76 of 1998, as amended, in that he sexually harassed his colleague, Mrs Loxton when he made unwanted physical contact which among other things include indecent exposure of his genitals and made sexual advances by proposing that she must have sexual intercourse with him.
II. Section 18(1) (t) of the Employment of Educators’ Act 76 of 1998, as amended, in that he displayed disrespect to his colleague, Mrs Loxton when he asked her personal questions referring to her age and that he wished her husband would die so that he could substitute her husband. He also went to Mrs Loxton’s classroom and in front of the learners he told Mrs Loxton in Äfrikaans, that she should let the learners go out during break, because he wanted sex to have sex with her.
5. A disciplinary hearing was held on 1st September 2016, 12 September 2016 and 26 September
6. The Applicant was found guilty and lodged an appeal on 6 July 2017. His appeal was dismissed on
12 September 2017 and a sanction of a final written warning and R5000, 00 was implemented on
20 November 2017.
7. The Applicant challenges the substantive fairness of the disciplinary action.
8. Regarding relief, the applicant seeks the setting aside of the final written warning and a refund of the R5000.00 fine paid.
SURVEY OF EVIDENCE AND ARGUMENT
9. This is a summary of evidence considered, as provided for in terms of Section 138(7)(a) of the
Labour Relations Act 66 of 1995 (LRA), relevant to the dispute at hand.
10. The Respondent called only one witness, Ms Sonja Septoe, a Senior Education Specialist (Labour
Relations), who was the chairperson of the disciplinary hearing. Ms Septoe testified that the
Respondent received a letter dated 3 December 2015 from Adv. G Saayman, an executive
officer of NAPTOSA , addressed to the EDO, Mr Muller , wherein he alleged that its member, Ms
Carolus is being bullied by the Applicant and that he also made sexual advances to Mrs Loxton.
11. Ms Septoe also testified that the Respondent also received a letter from Mrs Carolus on 30 November 2015, dated 26 November 2015. This letter was a grievance against the Applicant for alleged bullying, harassment and threatening. Another letter dated 7 December 2015 was received from NAPTOSA wherein Adv. G Saayman requested a response from the EDO, Mr Muller. The EDO then requested more time to investigate the grievance.
12. Ms Septoe further testified that the incidents occurred in May and June 2015.The Applicant was served with a charge sheet on 15 August 2016. At a very late stage during the Disciplinary hearing the Applicant submitted a medical certificates indicating that he has complained about erectile dysfunction. She has considered some circumstantial evidence. Mrs Loxton was detailed in her description of the sexual harassment. She has submitted her disciplinary outcome on 14 October 2016 and found the Applicant guilty on both charges. She granted both parties an opportunity to submit mitigating and aggravating factors. The Applicant failed to submit mitigating factors. On 15 November 2016 she submitted her finding and sanction of a Fine of R5000, 00 and a Final Written Warning to the Respondent. The Applicant received an approved finding and sanction on 29 June 2017.
13. The Applicant testified that he is 29 years in the teaching profession. He started as a Principal at Swartkops Primary School on 4 June 2014. On 20 June 2014 he felt ill and was hospitalised for two (2) months for a pinched nerve in his lower back. He returned to school in January 2015. He again had to go on sick-leave as a result of a prostate gland. Before he went on leave, the school had an acting SGB chairperson. He again went on leave on 24 April 2015 and returned on 8 May 2015. He met Mrs Loxton in the School foyer and asked the staff what Mrs Loxton is doing at the school. Mrs Carolus advised that Mrs Loxton was involved with a beading project, where she teach the learners how to bead. Mrs Carolus also informed him that the school contributes R150 per day for 3 days, of which R100 goes to Mrs Loxton and R50 to Mrs Carolus for transporting Mrs Loxton respectively. He told the staff that he would not have approved of the R450 per week expenditure as the school’s finances were not that good and other parents could have done the beading on a voluntary basis and for free. He also asked how does the beading project coincide with the school curriculum. During this period Mrs Carolus was the chairperson of the FINCOM (Finance Committee) and convenor of the SNP (School Nutrition Programme). Mrs Carolus did not take kind of his comment and changes he wanted to implement. Mrs Carolus resigned from all the committees and later resigned from the teaching profession, but later withdrew her resignation.
14. The Applicant further testified that at one stage he went to go and enquire why Mrs Carolus was still busy after school. Mrs Loxton was also sitting in the same class. Mrs Carolus was making jokes and instructed him to sit down. After a while Mrs Loxton went to the toilet and went to put some items in his office. Mrs Carolus was waiting for Mrs Loxton outside.
15. During December 2015 the EDO verbally informed him that there was a letter of complaint that he misused school finance and sexual harassment. The EDO advised him that he would get the further information from Mrs Stucki. He went to Mrs Stucki and she advised that there are two (2) complaint against him. One of financial mismanagement and one of sexual harassment. Mrs Stucki advised him
to plea guilty to the sexual harassment complaint and receive a fine and receive a warning, instead of being dismissed. He told her that that he would never plead guilty to something he did not do.
16. The Applicant also testified that all the school’s financial documents, including the check books were kept in Mrs Carolus‘s classroom. Even after Mrs Carolus retired, she never handed the school’s financial documents over to him. Mrs Carolus defy him in many respects. He complained to the EDO, but the EDO did nothing. At one stage he went to go and enquire why Mrs Carolus was still busy after school. Mrs Loxton was also sitting in the same class. After a while Mrs Loxton went to the toilet. He met Mrs Loxton in the foyer and had a brief conversation with her about the bead project. Mrs Carolus who was waiting outside, called for Mrs Loxton. He never touched or had sexual intercourse with Mrs Loxton. The Applicant further testified that during the period of the alleged claims of sexual harassment, he had experienced problems with his prostate gland, which caused an erectile dysfunction.
ANALYSIS OF EVIDENCE AND ARGUMENT
17. Section 186 (2) of the Labour Relations Act, 66 of 1995 (LRA) defines an unfair labour practice as meaning inter alia: ( 2) “Unfair labour practice” means any unfair act or omission that arises between an employer and
an employee involving —
(b) The unfair suspension of an employee or any other unfair disciplinary action short of dis-missal in respect of an employee,
18. Fairness requires that the position and interests of both the employee and employer are taken into ac-count in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or value judgment to established facts and circumstances. In doing so, it must have proper re-gard to the objectives sought to be achieved by the Act.
19. The following were common cause facts: The alleged incidents occurred during May 2015.The Re-spondent became aware of the alleged claims of misconduct against the Applicant by 3 December 2015.The Applicant was served with a charge sheet on 15 August 2016 and the disciplinary Inquiry was held on 1, 12 and 26 September 2016. The chairperson of the disciplinary hearing finalised and submitted her outcome and sanction to the Respondent on 15 November 2016. The Applicant re-ceived the outcome and sanction from the Respondent on 29 June 2017.
20. It is trite law that an employer “must effect discipline in a prompt manner”. The Oxford Dictionary defined “prompt” as “act without delay”. It was common cause that the Respondent obtained writ-ten complained from NAPTOSA obo the complainant, Mrs Carolus on 3 December 2015. The Re-spondent investigated the matter and only pursued same against the Applicant about nine (9) months after it became aware of the allegations against the Applicant. The only reasons furnished for the de-layed by the Respondent was the grievance procedures, school holidays and non-availability of a chairperson. The Respondent also furnished the Applicant with an outcome and sanction about nine (9) months after the disciplinary hearing was finalised, which is about a year and a half after the Re-spondent became aware of the allegations against the Applicant and about more than two (2) years af-ter the alleged incidents occured.
21. The Respondent failed to furnish any reasonable explanation for the delay herein. The Applicant sub-mitted that the allegations impacted negatively on his marriage as well as relationship with his children. It was further common cause that the Respondent obtained two (2) letters of complaint from two (2) adult females against the Applicant during its investigation. The one (1) adult, Mrs Carolus was the complainant and the other adult, Mrs Loxton was the alleged victim. Both of them testified during the disciplinary hearing. No leaners, expert witnesses or special investigation was conducted. In other words the investigation was fairly straightforward. No grievance procedures or outcomes were con-ducted.
22. In Khumalo and Another v Member of the Executive Council for Education: KwaZulu-Natal (2014) 35 ILJ 613 (CC) at para 35 the Consititutional Court said:
‘Section 195 provides for a number of important values to guide decision makers in the context of public sector employment. When, as in this case, a responsible functionary is enlightened of a potential irregularity, s 195 lays a compelling basis for the founding of a duty on the functionary to investigate and, if need be, to correct any unlawfulness through the appropriate avenues. This duty is founded, inter alia, in the emphasis on accountability and transparency in s 195(1)(f) and (g) and the requirement of a high standard of professional ethics in s 195(1)(a). ….’
23. If one applies the considerations in Sanderson v Attorney-General, Eastern Cape (CCT10/97)  ZACC 18; 1997 (12) BCLR 1675; 1998 (2) SA 38: to delayed disciplinary proceedings, what has to be considered, in deciding whether the delay is unreasonable to the extent of bringing about the final termination of the proceedings, is the length of the delay, the explanation justifying the delay being inexcusable or not, the assertion of a right to a speedy hearing by the employee, the issue of prejudice, and finally the nature of the alleged offence. This approach was indeed adopted by the SCA in Cassimjee v Minister of Finance 2014 (3) SA 198 (SCA) at para 11 where the Court said:
‘There are no hard-and-fast rules as to the manner in which the discretion to dismiss an action for want of prosecution is to be exercised. But the following requirements have been recognised.
• First, there should be a delay in the prosecution of the action;
• second, the delay must be inexcusable; and,
• third, the defendant must be seriously prejudiced thereby.
Ultimately, the enquiry will involve a close and careful examination of all the relevant circumstances, including the period of the delay, the reasons therefor and the prejudice, if any, caused to the defendant.
There may be instances in which the delay is relatively slight but serious prejudice is caused to the defendant, and in other cases the delay may be inordinate but prejudice to the defendant is slight.
The court should also have regard to the reasons, if any, for the defendant's inactivity and failure to avail itself of remedies which it might reasonably have been expected to use in order to bring the action expeditiously to trial.’
24. In the employment law context, the approach in dealing with whether disciplinary proceedings should
be ended on the basis of a delay is firmly founded in considerations of fairness. The former Industrial Court dealt with a delay in the conduct of a disciplinary hearing in the judgment of Union of Pretoria Municipal Workers and Another v Stadsraad van Pretoria(1992) 13 ILJ 1563 (IC) at 1659A-C and said:
‘Fairness, however, dictates that disciplinary steps must be taken promptly. Both the staff regulations and the recognition agreement echo the need for prompt action as all time-limits must be adhered to strictly and time-limits are provided for in paras 5.2.5 and 5.3.1.
In Mahlangu v CIM Deltak (1986) 7 ILJ 346 (IC) one of the guide-lines for a fair hearing was a right to have the hearing take place 'timeously'.
In Brassey & others The New Labour Law it is said that the enquiry must be held promptly. Article 10 of ILO Recommendation 166 suggests that:
'The employer should be deemed to have waived his right to terminate the employment of a worker for misconduct if he has failed to do so within a reasonable period of time after he has knowledge of the misconduct.'’
25. The Respondent submitted that they could not locate or get their witnesses to come and testify, since the complainant, Mrs Carolus has retired and moved to the Southern Cape and the alleged victim, Mrs Loxton has moved into an informal settlement.
26. The Respondent also submitted that to get the recording of the disciplinary hearing, the transcribed costs are much more than the relief sought by the Applicant, hence they could not provide a tran-scribed record to serve as evidence during the Arbitration hearing.
27. The scheme of the LRA requires of the employer to adduce evidence “that is sufficient to persuade a court, at the end ... that the claim or the defense, as the case may be, should succeed”. As has be-come apparent from Edcon Ltd v Pillemer NO (2010) 1 BLLR 1 (SCA)., it is not sufficient to rely on general statements made without providing supporting evidence and putting material in front of the de-cision maker to ensure that he or she reaches a reasonable decision.
28. Considering the evidence and submissions in totality, I am of the view that the Respondent has failed to rationally justify the delay in the disciplinary action against the Applicant. The Respondent also failed to proof any substantive fairness for the disciplinary action against the Applicant.
29. In Sidumo v Rustenburg Platinum Mines Ltd (2007) 12 BLLR 1097 (CC). The Constitutional Court rejected the so-called “reasonable employer” test. The court emphasised the importance of “holding the scales between the competing interests of employees and employers evenly in the balance”.
30. It therefore follows that the Respondent has committed an unfair labour practice as envisaged by section 186(2)(b) of the LRA.
31. The Applicant is entitled to the relief sought.
32. The final written warning issued to the Applicant on 26 June 2017 is set aside. The Applicant is also entitled to a compensation in the amount of R 5 000, 00 (Five Thousand Rand) [which was deducted from the Applicant’s salary during November 2017.]
33. The Respondent, the Department of Basic Education committed an unfair labour practice as contem-plated by Section 186(2)(b) of the LRA.
Commissioner: Hadley Saayman
34. The Respondent, Department of Basic Education is ordered to pay the Applicant, Gladman Wandile Aba the amount of R 5 000, 00 (Five Thousand Rand) [which was deducted from the Applicant’s sal-ary during November 2017] by no later than 20 June 2019. The final written warning issued by the Respondent to the Applicant on 26 June 2017 is set aside.