Case Number: PSES551-18/19GP
Applicant: CLEMENS FREDERICK SMITH
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Misconduct
Venue: Johannesburg West District Office in Roodepoort
Award Date: 9 October 2019
Arbitrator: Themba Manganyi
Panellist: Themba Manganyi
Case No.: PSES551-18/19GP
Dates of Hearing: 16 April 2019 & 01 August 2019
Heads of Arguments: 28 August 2019
Date of Award: 09 October 2019
In the Arbitration Hearing between
CLEMENS FREDERICK SMITH APPLICANT
DEPARTMENT OF EDUCATION - GAUTENG RESPONDENT
Applicant’s address: 71 Edith Street
Tel: 072 286 1706
E-Mail Address: email@example.com
Respondent’s representative: Ms Barbara Mahlangu
Respondent’s address: Department of Education - Gauteng
Private Bag X7710
Telephone: 011 831 5336
E-Mail Address: firstname.lastname@example.org
DETAILS OF HEARING AND REPRESENTATION
1. This is an arbitration award in terms of section 138(7) of the Labour Relations Act 66 of 1995 ("the LRA"), as amended. The arbitration award follows an alleged unfair dismissal dispute referred to the Education Labour Relations Council ("the Council") on 12 October 2018.
2. The matter was heard on 16 April 2019 and 01 August 2019 at Johannesburg West District Office in Roodepoort. The applicant, Mr C.F. Smith, attended the proceedings and he represented himself. Ms Barbara Mahlangu, the Labour Relations Officer, represented the respondent, Gauteng Department of Education. The record should show that the matter was postponed on 26 February 2019 to afford the applicant an opportunity to seek representation. However, the applicant could not secure representation and he elected to proceed unrepresented.
3. The respondent submitted the only bundle of documents into evidence and the veracity of the documents was not disputed. The Bundle was marked Bundle R. The parties were allowed to call witnesses and cross-examine the witnesses. At the end of the proceedings, the parties requested to submit their heads of arguments in writing on or before 08 August 2019. I received the respondent’s closing arguments on 12 August 2019 and the applicant’s on 28 August 2019 from the Council. The proceedings were manually and digitally recorded and the recording thereof was retained by the Council.
ISSUES TO BE DECIDED
4. Dismissal was not in dispute. I am therefore required to determine the procedural and the substantive fairness of the dismissal.
5. In the event that I find that the dismissal was unfair, I will be required to determine the appropriate relief.
6. The applicant was employed as an Educator on 01 January 2013. The applicant’s dismissal was occasioned on 02 October 2018. At the time of his dismissal, he was appointed at Hoërskool Die Burger and he earned a salary of R22 797, 25 per month.
7. The respondent leveled the following charge against the applicant:
On the 19 January 2018 or anytime incidental thereto, you allegedly conversed with the learners at the school displaying racial references by saying that “Black people are stupid or idiots, Julius Malema is stupid, Black people will decease being poor, Black people collect zero and the only thing that black people invented is peanut butter”, whilst you or ought to have known that it was wrong to do so.
In view of the above, you are thus charged in terms of Section 18(1)(k) of the Employment of Educators Act 76 of 1998,as amended.(sic)
8. The applicant challenged the procedural and the substantive fairness of his dismissal and he sought retrospective reinstatement as a relief.
SUMMARY OF EVIDENCE AND ARGUMENTS
The respondent’s case
The respondent called four witnesses and they all testified under oath. In summary their evidence was as follows:
9. Kamohelo Rampou (“Rampou”) stated that he was a learner at Hoërskool Die Burger and that the applicant was his registered class teacher. He stated that sometime in January 2018 one of the learners in his class played music in the class and the applicant told that learner to switch of his music or else that was what Black learners would collect at the end of the year. He stated that the applicant would tell them that they were going to collect zeros. He said that the applicant told them that the only thing that Black people created was a peanut butter.
10. Under cross-examination he confirmed that the applicant uttered the words ‘Black people are idiots or stupid’. When asked if the applicant was a racist, he stated that previously, the applicant was racist and that he was not sure if the applicant has now changed.
11. Cameroon Chambers (“Chambers”) stated that he was a learner at Hoërskool Die Burger and that he was in the applicant’s class the previous year. He stated that another learner angered the applicant and the applicant said that Coloureds could only be separated in a washing machine. He said his self-esteem was not affected because he knew that what the applicant was saying was not true. He said that he did not have a vendetta against the applicant.
12. Under cross-examination he confirmed that he would like the applicant to come back to school. He stated that people would at times say things that they do not mean. He confirmed that the applicant said Black people only invented peanut butter. When asked if the applicant was racist, he answered in the negative. Under re-examination, he stated that it was not correct for the applicant to say ‘idiotic Black people’.
13. Sibonelo Khumalo (“Khumalo”) stated that he was a learner at Hoërskool Die Burger and that the applicant was his registered class teacher in 2018. He submitted that during a registered class period the applicant wanted to show learners some videos, but the learners were making noise. When Chambers walked into the class, the applicant said that Coloureds could only be separated in a washing machine. He stated that he did not have any vendetta against the applicant.
14. Under cross-examination, when asked if the applicant had mentioned the name of Julius Malema it would have been more controversial. He agreed that it would have been more controversial. He denied that the applicant was a good teacher because the applicant was always shouting at learners. He stated that he did not want the applicant to come back to school because the school has been good since the applicant’s dismissal.
15. Mr John Marakala (“Marakala”) stated that he was the Presiding Officer during the applicant’s disciplinary hearing. He testified that on the first day of the hearing (24 April 2018), the applicant was represented by Mr Angelo Peterson from Naptosa. However, the applicant objected to his representation and said Peterson would be his advisor. The respondent had an issue with proceeding whilst the applicant was not represented. The matter was postponed to 26 April 2018. He stated that he advised the applicant of his rights. The applicant was afforded the right to call his witnesses and to cross-examine the respondent’s witnesses.
16. Under cross-examination, he stated that there was no shred of evidence to suggest that the applicant’s witnesses were intimidated.
The applicant’s case
The applicant testified and also called three (3) witnesses. All the witnesses testified under oath and in summary, their evidence was as follows.
17. The applicant testified that there was hype about his video and the EFF came to the school. After that, he was transferred from the school. He stated that he did not believe in ‘idiots or Blacks’. He apologized for having uttered those words. He stated that he was not a racist and he did not mean any harm. He stated that he knew that he was a good teacher and he knew that he was very controversial. He stated that he wanted to cut Khumalo down because he (Khumalo) was a trouble maker. He admitted that he made learners to feel inferior.
18. Under cross-examination, he agreed that it was not good to make learners to feel inferior. He confirmed that the statement on Annexure D of the bundle was his statement. He said that when he said ‘you guys’, he was referring to two or three learners that were not listening. He confirmed that he motivated the learners in his class by saying that poverty sucks. He said that when he said that the learners would collect zero he was making reference to the binary code. On re-examination, he stated that when he said that you guys invented peanut butter he meant that there were other inventions that Blacks have invented but they were not recognized.
19. Mwapeng Bwalya (“Bwalya”) stated that the applicant was not racist because he treated the learners equally. She said that she was not happy because her evidence was not believed at the disciplinary hearing. However, Khumalo’s lies were believed. She stated that she would take the applicant back at school because the applicant inspired the learners.
20. Under cross-examination, when she was asked what was her understanding of ‘that is why you guys do not achieve…’. She said that it meant that there were other inventions that Blacks invented but they (Blacks) were not credited. She confirmed that it was inappropriate for the applicant to utter those words when the class was disruptive. She stated that she personally did not feel inferior about the applicant’s utterances. She said that Khumalo was depriving her of her right to education because when the applicant wanted to show them some videos, Khumalo was disruptive. She confirmed that it was not inspiring for the applicant to call Khumalo and other learners idiotic Blacks.
21. Keamogetswe Barnard (“Barnard”) stated that she was testifying for the applicant because the applicant was not racist. She said the applicant, over and above stating that they were idiotic Blacks, the applicant also said that they could become champions. She said the applicant did not make her feel inferior as she did not take bad things personally. She stated that she would take the applicant back at school because he was influential. She stated that the applicant said that Blacks had other inventions but they were only credited for inventing peanut butter.
22. Under cross-examination she confirmed that it was not correct for the applicant to say things that would make other people feel inferior. She further confirmed that it was not good for the teacher to say idiotic Blacks. She said if the applicant admitted that he made learners to feel inferior it was fine.
23. Linda Shoko (“Shoko”) stated that she did not believe that the applicant was racist. She said that many learners did not like the applicant because the applicant was telling them the truth and the truth hurts. She stated that she would take the applicant back at school. She said that Khumalo was disruptive and aggressive. She said that the statement that Blacks only invented peanut butter made her feel great because she did not know that the peanut butter was invented by Blacks. She said that if Khumalo continued being disruptive, the applicant was supposed to have kept quiet and avoid him (Khumalo).
24. Under cross-examination she said that it was not bad for learners who did not have the same self-esteem as hers to complain. She said that there was nothing wrong to be called an idiotic Black if you knew that you were not. She conceded that she would accept that the applicant made other learners to feel inferior.
ANALYSIS OF EVIDENCE AND ARGUMENTS
25. I do not propose to rehearse all that was submitted during these proceedings, but it should not be construed that all the submissions were not considered in the writing of this award. I have also considered the parties’ closing arguments, but same would not be repeated herein as they are a matter of record.
26. The existence of a dismissal was not in dispute. The applicant challenged both the procedural and the substantive fairness of his dismissal. In terms of section 192(2) of the LRA, the respondent must prove on a balance of probabilities that the dismissal was fair. In considering the fairness of a dismissal, I must have regard to Schedule 8, item 4 and 7 of the Code of Good Practice: Dismissal (“the Code”).
27. The allegations that were leveled against the applicant (page 9 of the bundle) occurred on 09 January 2018 during the applicant’s period. It was said that some of the learners were disruptive during in the classroom to an extent that the applicant was unable to control the class. The applicant was on record during these proceedings and in his closing arguments that he apologized for his wrongdoing.
28. All the applicant’s witnesses testified about the applicant’s general conduct and that they did not consider the applicant as a racist and that they were not aggrieved by his conduct. The applicant’s witnesses also testified that they wanted the applicant back at school. On the other hand, only Chambers stated that he would like the applicant back at school. Whilst Rampou and Khumalo held a different view.
29. It is common cause that the applicant did not dispute that he uttered the statements as contained in the charge sheet. The applicant also did not dispute that the extract of the video contained in page 12 of the bundle were his utterances. It was the applicant’s case that his utterances were misconstrued. In fact, the applicant transcribed the extract on page 12 and he stated that it was a verbatim account of the video in question. From the extract, after the applicant has uttered the words idiotic Blacks people’ he realized that his utterance were inappropriate and he apologized. However, just on the next paragraph, the applicant reiterates the very same words – idiotic Blacks.
30. It cannot be disputed that the applicant’s utterances bordered on racisms. The Constitution of the Republic of South Africa protects all its citizens against any form of discrimination. It is therefore my considered view that the applicant violated the learners’ Constitutional right by calling them idiotic Blacks and the applicant did not only demean the leaners, but the entire Black population by stating that the only thing that Blacks invented was a pea nut butter.
31. I find the attitude of the applicant’s witnesses troubling. I cannot comprehend how they came to the conclusion that what the applicant uttered was inspiring. There was definitely nothing inspiring about the applicant’s utterances. On the other hand, I found the respondent’s witnesses to be reliable and credible and their testimony could be associated with people who understood that the applicant’s utterances had racial connotations. Consequently, I find that a finding of guilty on the charge, leveled against him was fair.
32. Having found the applicant guilty of the misconduct leveled against him, I have to consider the provisions of the Employment of Educators Act 76 of 1998 (“the Act”). Section 18(1)(k) of the Act states that misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she unfairly discriminates against other persons on the basis of race, gender, disability, sex, pregnancy, marital status, ethnic and social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth, family responsibility, HIV status, political opinion or other grounds prohibited by the Constitution. Section 18(5)(c) of the Act states that an educator may be dismissed if he or she is found guilty of unfair discrimination, as contemplated in subsection (1)(k). Having considered the above-mentioned provisions of the Act, I do not have any reason to interfere with the respondent’s decision to dismiss the applicant. I therefore find that dismissal was the appropriate sanction under the circumstances.
33. On the procedural unfairness, Marakala’s evidence was not rebutted. The applicant’s contention in this regard was that his witnesses were intimidated during the disciplinary hearing. The Code in Item 4 stipulates that the applicant must be afforded an opportunity to call witnesses and to cross-examine the respondent’s witnesses. All this was afforded to the applicant. I therefore do not find any procedural defect in the applicant’s dismissal.
34. The applicant’s dismissal was procedurally and substantively fair.
35. The applicant is not entitled to any relief. Thus, the Council must close this case file.
Arbitrator: Themba Manganyi