PSES697-18/19GP
PSES697-18/19GP
Award Date:
18 October 2019
Case Number: PSES697-18/19GP
Province: Gauteng
Applicant: PEU OBO MTHIMKHULU, NM
Respondent: Department of Education -Gauteng
Issue: Unfair Dismissal - Misconduct
Award Date: 18 October 2019
Arbitrator: Mohau Clement Ntaopane
Case Number: PSES697-18/19GP
Arbitrator: Mohau Clement Ntaopane
Date of Award: 18 October 2019
In the ARBITRATION between
PEU OBO MTHIMKHULU, NM
(Applicant)
And
DEPARTMENT OF EDUCATION – GAUTENG
(Respondent)
Applicant’s legal representative: Lordwick Themba Tshangela
Rep/Applicant’s address:
Telephone:
Fax:
E-mail: thembatshangela@gmail.com
Respondent’s representative: Valerie Mnisi
Rep/Respondent’s address:
Telephone:
Fax:
E-mail: Nomvula.mnisi-dhlamini@gauteng.gov.za
DETAILS OF HEARING AND REPRESENTATION
[1] This is the award in the arbitration between Ms. M.N Mthimkhulu, as represented by PEU, the applicant, and Department of Education – Gauteng, the respondent.
[2] The arbitration was held under the auspices of the Education Labour Relations Council (ELRC) in terms of section 191(5)(a)(i) of the Labour Relations Act, 1995 as amended (“the LRA”) and Clause 17.2.1 of the ELRC Dispute Resolution Procedures. The award is issued in terms of Clause 18.5.1 of the ELRC Dispute Resolution Procedures.
[3] The arbitration was heard in parts on 27 August, 26 and 27 September 2019 at the ELRC Offices in Centurion. The applicant was represented by PEU Official, Mr. Lordwick Themba Tshangela, while the respondent was represented by Labour Relations Officer, Ms. Valeri Mnisi-Dhlamini.
[4] The process was conducted in English and digitally recorded. Ms. Nolufefe Ntikinta provided intermediary services, while Ms. Hlengiwe Mbele assisted with interpretation in Zulu. Both parties submitted bundles of documents into the record. Parties agreed to submit arguments in writing.
ISSUES TO BE DECIDED
[5] The dispute involves sanctions against the applicant for allegations of misconduct in the form of two months suspension and a final written warning valid for 6 months and I am to determine whether in so doing the respondent perpetrated unfair disciplinary action short of dismissal.
[6] The relief to be awarded is also in issue.
BACKGROUND TO THE DISPUTE (COMMON CAUSE FACTS)
[8] The applicant has been in the employ of the respondent as a Principal post level 04 at AB Xuma Primary School since 01 March 1978. She earns a monthly salary of R49196-22.
[9] The two allegations levelled against the applicant in terms of the pre-arbitration minutes – were as follows:
‘Allegation 1
• Physical assault against Busisiwe Mhlongo, Zandile Nala and Reabona Buzu
Allegation 2
• Verbal abuse against Busisiwe Mhlongo’.
[10] On 27 October 2018 the applicant was found guilty of the two allegations and the sanctions imposed were two months suspension without pay, a final written warning and a referral to EAP for anger management.
[11] The applicant referred a dispute to the council on 21 November 2018. A certificate of non-resolution was issued on 12 December 2018 and a referral to arbitration was made on 15 February 2019.
[12] At the arbitration both parties called as some of their witnesses, learners, some of whom where mentioned in the charges. In recording the testimony of the learners I will refer to them as “Learner 1” and so forth, depending on the order they testified. Their names can be confirmed on the audio recording and will also appear on the arbitration notes.
SURVEY OF THE RELEVANT EVIDENCE
[13] Ms. NM Mthimkhulu was the first witness to be called in support of her case. She testified that she was appointed into her post after she challenged not being appointed into the post and received an ELRC award confirming that she should be appointed into the post instead of “Mr. Radebe”. She disputed the first allegation as it appeared on page 18 of her bundle and explained that around November 2016 she was teaching her class and had asked them to stand by the board so that she could reach all of them. She noticed that Busisiwe was laughing together with a boy whose name she could not remember, She asked her to come to the front and asked her what she was laughing about and then ordered her to go back to her position. She asked a question, which Busisiwe answered correctly, to which she then said to her that she behaves as though she is stupid when she is not. Ms. Mthimkhulu stated that it was not true that she beat Busisiwe, whose testimony she found to be contradictory because she had said that she reported to her mother that she had pushed her to the point where she nearly fell next to a chair, whereas she never reported that she was beaten. She also felt that this testimony could not be reconciled with that of Ms. Khumalo who had stated that when Busisiwe was pushed she nearly fell next to the mini-library.
[14] Ms. Mthimkhulu disputed beating “Buzu” and also found his testimony to have been contradictory. She pointed out that Buzu that she had been beaten using a chalk board duster, but when asked who else was beaten she stated that she did not remember, only to later say that Busisiwe was beaten with a hand. Ms. Mthimkhulu also disputed beating Nala and referred to Buzu’s testimony that Nala was never beaten. Ms. Mthimkhulu found it strange that it had been alleged initially that she beat Nala, something that now the respondent in its opening statement seemed to be retracting. In her view the retraction came as a result of the respondent having heard the testimony of Nala’s grandmother having disputed that she was beaten when she testified in court. Ms. Mthimkhulu explained she has never engaged in such behaviour in all her years in the profession and that her record would confirm that. When she disciplines learners she would use the chalk board duster to smeer and “puff” them on their faces and order them not to clean off the smeer, or she would chase them around the classroom, something which they would enjoy as they would laugh.
[15] Ms. Mthimkhulu disputed the second allegation and stated that she has never used abusive language towards Busisiwe. What she remembered was that the three learners were in Grade 4C at the time and that she was busy collecting term marks. She had given the learners a mathematic project on data handling for which they had a week to research. While teaching the Grade 4B class she asked Nobelungu to go and call all those who had not submitted their projects. Busisiwe came with other learners and she asked her where their project was and she said she did not do it. She told Busisiwe that she had given them the whole week to do it and that since she needed the marks for the end of the term, she must go back and get it done before school closes. This was all she said to her and was surprised when Busi’s mother then wrote a letter to the principal saying that she should stop abusing the learners. Mr. Radebe, the former principal, called her to his office to find out whether she had done what had been alleged, that she had called Busisiwe stupid. In the office was also an HOD who was jotting down what she was saying. She disputed the allegations and said to Mr. Radebe that she did not really remember in all her years ever insulting a child and that the child may be called to come and confirm. This also started to infuriate her as Mr. Radebe was insisting that maybe she had forgotten.
[16] Ms. Mthimkhulu submitted further that when Busisiwe was called and asked to relate what had happened. Busisiwe said she no longer remembered and started crying, and was then released by Mr. Radebe. Mr. Radebe then required that an apology be delivered to Busisiwe’s mother. Ms. Mthimkhulu agreed to apologize for reprimanding Busisiwe, but not for allegedly using abusive language. Ms. Mthimkhulu also pointed out the fact that it was alleged that she had uttered these words in the presence of the Grade 4C learners, whereas it happened in Grade 4B. She went to Busisiwe’s mother to clear the issue, not to bribe her as it was alleged. She believed that it was important to maintain good rapport with the learners’ parents. Busisiwe’s mother welcomed her and in the end said that she will follow it up as the person who was insisting that she report the matter to the district was Mr. Radebe. Ms, Mthimkhulu was surprised by the fact that the district never engaged her on this issue, as such she considered it a plot against her. In her view it was after she had received the ELRC award that all the negativity about her started. On 1 March 2017 the SGB called a meeting and just before it started she and Mr. Radebe were asked by the SGB chairperson to recuse themselves from the meeting. The feedback she got about what happened at the meeting was that it was resolved that Mr. Radebe was going nowhere and at this time she had not even been privy to what the award said. On 5 March 2017 there was a parents meeting at which she was asked to recuse herself, together with the principal, however, at this meeting she refused on account of having been aware that she was the subject matter of the meeting. In that meeting the chairperson of the SGB incited parents against her, stating that she was misusing funds and that she had no morals.
[17] Ms. Mthimkhulu referred to page 33 of her bundle, a letter written to the dispute management and the circuit manager – IDSO, by Mr. Radebe on the alleged harassment of Busisiwe. In the letter Mr. Radebe stated that he had attached four items, letters. Ms. Mthimkhulu submitted that she has been shown any of the letters referred to, including the letter allegedly from the parent. This was why she felt that this was a plot against her since she has never been confronted about them. Only at the disciplinary hearing did she become aware that were such letters. She considered the finding of guilt against her to have been unfounded having never been exposed to those letters. She referred to page 34, a letter written by the motions and labour chairperson of her union after lodging a grievance on how she had been treated since receiving her award. It stated that she had been treated badly and that there had been rumours about her and letters written by the SGB without her knowledge. There were also pamphlets being distributed for the purposes of denting her image. The letter was sent to Mr. Mosuwe, the HOD, who escalated it to the director, Mr. Mkhulisi. The department did nothing about her grievance since she never received any feedback.
[18] In cross-examination Ms. Mthimkhulu was asked what question she had asked Busisiwe and what her response was. Ms.Mthimkhulu could not remember the question since it had happened over three years ago, nor could she remember the response, although she remembered that it was a positive answer. It was put to her the fact that she can remember that the answer was positive but cannot remember the question was an indication that she was not telling the truth. Ms. Mthimkhulu was asked why she had targeted Busisiwe when she called a group of learners to ask for their projects. Her response was that she did not target her, she only asked her because she was the group leader. Ms. Mthimkhulu was asked how she became aware of what had been said in the meeting. She responded that her colleagues told her that in the meeting it was said that Mr. Radebe is not going anywhere and that in the parents’ meeting Mr. Luthuli had said he will not allow two principals in the school, as such Mr. Radebe was not going anywhere. Even on page 36 it was said that they were going to retain Mr. Radebe in lieu of herself. Ms. Mthimkhulu was asked how the letters she said she never had sight of would have assisted her. Her response was that it was proper for her to see them so that she can know what was alleged against her, what the individual deliberations were and what were the responses. When asked whether the allegations were not given to her in time she disputed it and stated that all the allegations cropped up after the award which was issued in 2016, the responded waiting and collaborating, wanting information and only in 2017 when Mr. Radebe realized that the award was not in his favour did this matter start.
[19] Ms. Mthimkhulu was asked to separate the award from the allegations against her. Her response was that they could not be separated as they went hand in hand and that in her view she could see that it is what led to all of this. She was asked why she apologized and her response was that she needed to humble herself for the sake of the school, adding that she even said to Busisiwe’s mother that she did not do those things that were alleged and that perhaps it had been because she reprimanded her. Ms. Mthimkhulu was asked to explain how Nala’s grandmother came to be in court. She submitted that Nala’s grandmother had gone to school to deliver lunch and discovered that her child was not there. She contacted Nala’s grandmother and asked her if she was aware that Nala was in court and she did this because the grandmother and the uncle, after hearing about the allegations, had disputed them because Nala had been in tears telling them that the school was forcing her to say she had been punished. The grandmother even drafted an affidavit at the police station which appeared on pages 40 – 41. It was put to Ms. Mthimkhulu that having been aware that Nala’s name was on the charge sheet, she interfered with the case, and that she did so by even going to Busisiwe’s mother’s home. Her response was that she wanted to get to the truth. It was further put to Ms. Mthimkhulu that her interference with Nala’s grandmother led her to remove the stop the learner from testifying, as such the respondent could not pursue the allegation involving Nala. Ms. Mthimkhulu did not agree with the statement.
[20] Learner 1 was the second witness to be called by the applicant. She stated that in November 2016 she was in Grade 4B and that Busisiwe was in Grade 4C. On the day in question Ms. Mthimkhulu came into the class, greeted them and went to go sit down. She then sent Nobelungu to get Busi and the others in her group regarding their project. When Nobelungu came back with those that had not finished their project, Ms. Mthimkhulu asked Busisiwe where her project was. Busisiwe said that it was with one of her group. Ms. Mthimkhulu asked her to go and call that person; Busisiwe had come alone, When the group came back the question was asked again and they all pointed to each other saying it was with the next person. Ms. Mthimkhulu then told them to start the work again since she needed those marks. They then went back to their class to start doing the project. Ms. Mthimkhulu had been calm and talking the same way she usually talks to them in class. Learner 1 testified further that she has never heard Ms. Mthimkhulu swearing, nor did she hear her swearing at Busisiwe. In her view it would not make sense for Ms. Mthimkhulu to instruct them not to swear and then to turn around and swear herself. Learner 1 submitted lastly that Ms. Mthimkhulu would discipline them by puffing them with chalk or by chasing them with a “Kelloggs” or oats box.
[21] Ms. Thandi Octavia Nala, grandmother to Zandile Nala, the third witness to be called by the applicant. She disputed that her granddaughter appeared to have been assaulted when she came home as she did not appear to be injured. What she knew was that Ms. Mthimkhulu would chase them with a feather duster, something they seemed to enjoy. She confirmed that she had gone to the school and did not find her granddaughter. She was then called by Ms. Mthimkhulu who told her that her granddaughter was in court, something she was not aware of, nor did she expect it. Nor was she conspiring with Ms. Mthimkhulu to close the matter because she would not, at her age, come to court to tell lies. When she got to court Zandile was crying and when she asked her why, she told her that she did not like having to tell lies about someone. Zandile had told her even at home that the school had told the group to lie about Ms. Mthimkhulu. She did not, however, remember which “Ma’am” had told them to lie since this happened in 2016. Ms. Nala was referred to page 41, which at first she did not recognize, but later confirmed the signature that appeared therein to have been hers and that the document was drafted because she would not allow her grandchild to appear in court when she is supposed to be in school, particularly if she was going to be made to tell lies about Ms. Mthimkhulu.
[22] In cross-examination Ms. Nala conceded that Zandile’s parents had consented to her testifying in court, but held that they were not aware when they signed the consent paper they had not read it. When asked if a learner that was going to testify in support of the respondent’s case would be lying, her response was that if the learner would be saying anything that did not agree with what Zandile had said they would be lying. Ms. Nala was asked whether her granddaughter would come to testify at the arbitration as to what the truth was. Her response was that it was a pity that her parents would not allow that since she is supposed to be in school. Ms. Nala was asked what her relationship with Ms. Mthimkhulu was. She responded that she loved Ms. Mthimkhulu because she taught her children, one of which was now a lawyer. She added that she did not love like the school now because the last child does not like the school, always asking her to send her to another school without telling her why. When asked whether this was why she was defending Ms. Mthimkhulu, Ms. Nala responded that she was not defending Ms. Mthimkhulu, but defending the fact that she has been called to come and bear witness to allegations that Ms. Mthimkhulu is not right for the school and that she must be chased away. Ms. Nala held the view that it would not make sense that she would hit her last child while she never hit her other children.
[23] It was further put to Ms. Nala that the reason she was at the arbitration was because her granddaughter was the most beaten by Ms. Mthimkhulu. Ms. Nala responded that had that been the case she would have fetched her from school, which is what she usually does if something happens to her at school. When asked who had told her to say that Ms. Mthimkhulu chases the learners with a feather duster, Ms. Nala responded that it was her granddaughter. When asked as to whom between herself and her granddaughter would be best placed to tell exactly what happened in class, her response was that Zandile would tell the truth, however, she would not allow her to come since she is being taught to tell lies. It was her view that since a new principal came to the school things changed. She was then asked whether she was admitting that what she was saying was not the truth. She disputed the statement and held that she was telling the truth, the truth she had been told by Zandile. It was put to Ms. Nala that when Zandile first spoke to the investigator she spoke the truth. Her response was that she only said what she said because she was afraid, hence she cried the day she was in court. It was lastly put to Ms. Nala that she was an irrelevant witness because she was not a student or staff member at the school, therefore she would not know what takes place there. Her response was that she would know because she would be called if something happens, the same way she was called when Zandile had fainted.
[24] Learner 2 was the first witness to be called by the respondent. She testified that she was 13 years old and was in Grade 7C. In 2016 she was in Grade 4C and Ms. Mthimkhulu was her mathematics teacher. She submitted that Ms. Mthimkhulu had beaten Reabona on her hand and it swelled up. She did not know what happened with Zandile. Learner 2 testified that while in class she was sitting in Banele’s group and they made her laugh. Ms. Mthimkhulu then hit her on her back and pinched and pinched her on her hand. Reabona was hit on her on the tip of her fingers with a chalk duster, which was how Ms. Mthimkhulu usually disciplined them. She related an incident when Ms. Mthimkhulu had asked a question and the class had answered it incorrectly. When she raised her hand and answered it correctly Ms. Mthimkhulu said to her that she acts dumb when she is clever. She disputed that Ms. Mthimkhulu has ever chased them as a form of disciplining them. She confirmed that Nobelungu had been asked to call them so that they could be explained about the project. She submitted that Ms. Mthimkhulu said that she was fucking stupid, a bloody fool and shit. This was said in the presence of her class mates.
[25] Learner 2 submitted further that she cried after the incident and when she got home she was asked by her mother why she was crying. When she told her mother the reason her mother said that they must draft a letter and deliver it to the principal because Ms. Mthimkhulu should have apologized. She confirmed that Ms. Mthimkhulu did come to her house to apologize and that she even apologized in class for what she had done, which made her feel better. In cross-examination it was put to Learner 2 that she did not remember whether Zandile was hit or not because she was not telling the truth. She reiterated that she simply did not remember. When asked what had happened to Banele while she was beaten she submitted that Ms. Mthimkhulu beat both of them. When asked as to when Reabona was beaten she submitted that it was not the same time Ms. Mthimkhulu beat them for laughing. She was referred to her previous statement as it appeared on page 24 of the applicant’s bundle where she said that she did see Reabona being beaten and that she only became aware of it because Reabona had told her. She confirmed that this was what happened and added that she also saw her bandaged hand.
[26] Learner 2 was asked in which class was she was insulted by Ms. Mthimkhulu and her response was in 4C. When asked whether she gave Ms. Mthimkhulu the project when she was asked for it her response was that she did. It was put to her that Ms. Mthimkhulu stated that she did not get the project from her, to which she submitted that she had been asked as the group leader and she had asked Philile to do it because she would not have been able to do it. Philile had written the wrong answers and when Ms. Mthimkhulu asked who had written the incorrect answers she said it was Philile. Learner 2 was asked to tell the truth because she had said that Nobelungu had called her to 4B, while she was now saying that she was insulted in 4C. Her response was that she was insulted in 4C and that what happened in 4B was Ms. Mthimkhulu explaining how to do the project. It was put to her that she was telling lies because Ms. Mthimkhulu and Learner 1 had testified that Ms. Mthimkhulu had asked for the project in 4B, to which Learner 2 responded that she was not telling lies. Learner 2 was asked how her relationship with Ms. Mthimkhulu was at the moment. She responded that it was fine since Ms. Mthimkhulu was no longer teaching her. When asked how she would feel if Ms. Mthimkhulu were to teach her again she stated that she would not be comfortable. It was put to her that it is because of knowing that she had testified lies about her, to which she reiterated that she was telling the truth. Learner 2 confirmed that she once lied to a fellow learner about where they had been when they came back from court because she did not want them to know.
[27] Learner 3, aged 13, was the second witness to be called by the respondent. He testified that he was in Grade 7 and that in 2016 he was in Grade 4 and that Ms. Mthimkhulu taught him mathematics. He submitted that Ms. Mthimkhulu hit them because someone answered incorrectly in class. He had given an incorrect answer and Ms. Mthimkhulu called him to the front of the class and hit him twice on the back of his hand with a chalk board duster. He was injured as a result and his mother took him to a hospital. He submitted that Busisiwe, Banele and Zandile were also hit by Ms. Mthimkhulu. He did not remember how Busisiwe was hit, nor did he remember how Zandile was hit, although he remembered that she had a bump on her head. Learner 3 submitted further that Ms. Mthimkhulu said to Busisiwe that she was fucking stupid. Learner 3 submitted lastly that he has never seen Ms. Mthimkhulu puff anyone with a chalk board duster or chase anyone, unless this was what she did in other classes.
[28] In cross-examination Learner 3 confirmed that Busisiwe was told that she was clever but acted dumb. He submitted, however, that it was not on the same day. When asked how Ms. Mthimkhulu hit Busisiwe, he stated that she slapped her. He did not, however, know where Busisiwe was pushed. When asked whether he remembered saying she had a bump on her head he confirmed this. When asked as to where Ms. Mthimkhulu would push her he stated that it was on her forehead with a finger and her chest. He was then asked whether she fell, and his response was that she balanced herself against a wall. Learner 3 confirmed that Busiswe had been called to 4B by Ms. Mthimkhulu and submitted that when she came back she explained to them how the project must be done. He did not remember whether Busisiwe had told her that she had shouted at her, nor whether her mood had changed when she returned. Learner 3 was referred to page 23 of the applicant’s bundle in terms of which when he had earlier stated he did not remember where Busisiwe was hit. His response was that he did not remember. Learner 3 was asked what happened the next day after he had been beaten and taken to the hospital. His response was that he went to school. It was then put to him that in terms of his earlier statement he did not go to school for two days because his hand was swollen. His response was that it was true that he did not go to school for two days, but after that he was able to go to school.
[29] Mr. Bhekisiza Radebe, Principal, was the third witness to be called by the respondent. He confirmed that in 2016 he was the principal and manager of the school and that he started in his role in August 2016. Ms. Mthimkhulu was his deputy and a Grade 4 mathematics educator. He was referred to page 10 of the respondent’s bundle and confirmed that he was the author of the letter. He had written the letter as a result of a learner telling him that she was insulted by Ms. Mthimkhulu. The learner had said that Ms. Mthimkhulu said she was a fucking stupid and a fool, and she was crying profusely as she related this. Ms. Mthimkhulu denied what the learner had said. Upon seeing the nature and manner in which the learner had presented the matter he could see that there was something underlying. Seeing as how he was not a specialist who could investigate, he allowed the department the opportunity to deal with the matter. Mr. Radebe submitted that he had a good relationship with Ms. Mthimkhulu and referred to a number of projects that were successful during the year and competitions that had been won. In his view the atmosphere was good.
[30] Mr. Radebe submitted that there was, however, a meeting in which they were asked to recuse themselves because it concerned them. Ms. Mthimkhulu then came to his office when he was with Busisiwe’s parent and before he could hear what the parent was coming to say, Ms. Mthimkhulu approached him and said to him that he was digging a grave, pointing at him and said that he will see. She also asked the parent why she was there because she thought the matter had been resolved. Mr. Radebe testified further that he would not know what is happening in Ms. Mthimkhulu’s class room while she teaching, although as a principal he usually did his rounds, which, however, would not involve interfering with the teaching. He had overheard during the investigation that Ms. Mthimkhulu was alleged to have thrown a duster at a learner and since it was not reported to him he did not deal with it. Mr. Radebe submitted that in the letter by Busisiwe’s mother he was asked to intervene and to ask Ms. Mthimkhulu not to abuse the learner verbally and that she needed to apologize to the learner in front of other learners as the incident had happened in their presence. Ms. Mthimkhulu reported to him in a meeting that she had apologized and in his view someone could only apologize if they were guilty of something and wanted to show remorse and ubuntu because they had done something that may not have been intentional.
[31] In cross-examination Mr. Radebe was asked to explain why he was no longer a principal at that particular school and his response was that he had been appointed at another school after Ms. Mthimkhulu received an award in terms of which she was appointed the principal. He was, however, not aware of the arbitration and only became aware of the outcome. He stated that at the time Mr. Ndlovu was the school IDSO. Mr. Radebe was referred to page 33 of the applicant bundle, the same letter he referred to in his testimony and alerted to the fact that he cited four attachments in the letter, one of which was a letter from the learner. He was asked what the learner had said in the letter and his response was that there was no letter from the learner and that the only one he remembered was from the parent. When asked how then this came to be part of his letter and his response was that this thing happened a long time ago as such he could not remember, and that perhaps he had asked the learner to tell him what happened. He however stated that the learner must have written a letter because he would not have referred to it in his letter if that was not the case.
[32] Mr. Radebe was then asked whether any intervention had been taken with regard to the traumatized learner and he confirmed that female teachers spoke to her. When asked how effective was the intervention he stated that he was not an expert, however, he could see that the learner was not herself and that her performance had taken a dip. It was put to Mr. Radebe that at the time Mr. Peter Nhlapo was the IDSO, and not Mr. Ndlovu as he had testified. He disputed the statement and reiterated that it was Mr. Ndlovu. It was also put to Mr. Radebe that he conveniently did this together with Mr. Ndlovu because he had an agenda against the applicant. Mr. Radebe said that was not him and highlighted the fact that he reported to the IDSO as much as the deputy principal reported to him and that one could not jump line functions in the Department of Education. It was further put to Mr. Radebe that he cited four attachments while the applicant party has never seen any of them. His response was that he did not keep documents since it was something that had been escalated, as such he could not go back to the school to ask where the documents were.
[33] Ms. Sbongile Mhlongo, Busisiwe’s mother, was the fourth witness to be called by the respondent. She testified that Busisiwe came home crying and told her that Ms. Mthimkhulu had pushed and pinched her for having laughed with Banele. She also told her that Ms. Mthimkhulu had hit her with a duster on her hand. At the time she spoke to Banele’s mother who works at the school and asked her to speak to Ms. Mthimkhulu to not do such things. Banele’s mother told her that she had already spoken with Ms. Mthimkhulu because Banele had already told her what happened and that Ms. Mthimkhulu had apologized. Since she was of the view that something like this would not happen again, she did not report it to the principal. It did not, however, stop as Busisiwe again came home crying saying that Ms. Mthimkhulu had said fucking stupid, bloody fool and shit to her. She then wrote a letter to the principal and asked Busi to deliver it so that the principal can ask Ms. Mthimkhulu to not do this anymore as Busisiwe was scared to go to school. The principal spoke to Ms. Mthimkhulu, together with another Ma’am and Busisiwe about the letter. Ms. Mthimkhulu contacted her telephonically and said she was sorry about what she had done because she was now being called to the principal’s office. Ms. Mthimkhulu also asked her why she had not spoken to her about it.
[34] Ms. Mhlongo submitted further that her response to Ms. Mthimkhulu’s apology was that she accepted it, but that since this was not the first time something like this happened she would appreciate if she could go and apologize to Busisiwe in front of the class because the learners were now laughing at her child. Ms. Mthimkhulu confirmed that as soon as she put down the phone she was going to do just that. Ms. Mhlongo submitted that while Busisiwe did confirm that Ms. Mthimkhulu apologized in front of the class, she was still hurt because her child was not ok and appeared to always be down. Ms. Mthimkhulu also came to her house with Banele’s mother in order to ask for forgiveness. In her view Ms. Mthimkhulu was apologizing for having pushed and sworn at Busisiwe. Ms. Mhlongo submitted that she would always receive calls from the school saying that Busisiwe was not doing well and that she was barely passing, something which has, however, improved since last year when Ms. Mthimkhulu was not there.
[35] In cross-examination it was highlighted to Ms. Mhlongo that she referred to only the pushing and insulting of Busisiwe as the reasons she felt Ms. Mthimkhulu was apologizing for and asked why she did not highlight the beating, if that indeed was also true that it happened. Ms. Mhlongo responded that she thought Ms. Mthimkhulu was apologizing for everything. She also stated that Ms. Mthimkhulu did hit Busisiwe with a duster on her hand, and that although she was not necessarily hurt, her spirit was hurt as she was no longer the same. Ms. Mhlongo was asked whether she knew that her Busisiwe sometimes lied and her response was that she did not know her to be a liar. She was asked what feedback Busisiwe has given her about her relationship with Ms. Mthimkhulu. Her response was that Busisiwe has told her that since Ms. Mthimkhulu came back she would come to her class and even greet her. When asked how she felt about this she stated that she did not see anything wrong since Ms. Mthimkhulu was no longer teaching her.
ANALYSIS OF EVIDENCE AND ARGUMENT
[36] Section 185(b) affords every employee the right not to be subjected to unfair labour practice. Section 186(2)(b) considers an unfair labour practice the unfair suspension or any other unfair disciplinary action short of dismissal in respect of an employee. It is for the applicant to prove that the conduct or practice complained of can be characterized as an unfair labour practice in terms of section 185(b) – Nawa & another v Department of Trade & Industry .
[37] John Grogan in analyzing the provision of section 186(2)(b) stated that:
“To fall within the terms of section 186(2)(b), disciplinary action against an employee short of a dismissal must be disciplinary both in nature and intent. Action is “disciplinary” if it is aimed a correcting errand behaviour for which the employee is responsible.”
In NUM v Martin and East (Pty) Ltd the Court held that suspension without pay as a form of disciplinary penalty may be considered as an alternative to dismissal if there is a valid reason for that penalty. In SAPO v Jansen Van Vuuren NO and others the Court held that Commissioners may set aside suspensions imposed as a disciplinary penalty if found, on the merits, that the employee was not guilty of the conduct for which they were suspended.
Arguments
[38] The applicant failed to submit written arguments as agreed. In its argument the respondent advanced that it had led evidence that was consistent, reliable and corroborated. The respondent held the view that Radebe’s evidence that Mthimkhulu apologized to Mhlongo in front of her classmates was never rebutted. It was also not disputed that Mthimkhulu apologized to Mhlongo’s mother for pushing, assaulting and insulting Mhlongo. It was the Respondent’s view that Mthimkhulu would not have apologized had she done nothing wrong. Learner 1’s testimony was considered irrelevant by the respondent as nothing had happened in her class. Nala’s evidence was held to have been a mere denial of the allegation, supported by an unsubstantiated claim of conspiracy against Mthimkhulu. The respondent found the case of Mthimkhulu based on conspiracy and jealousy stemming from an award appointing her as principal unfounded as it did not establish the learners cited in the allegations’ part to play in the appointment processes of the department. The respondent argued that the applicant had failed to discharge the onus of proof and as such her claim of unfair labour practice stood to be dismissed. The respondent held the decision to discipline the applicant to have been fair having considered the consequences of the transgression.
Probabilities
[39] In Sun International Management (Pty) Ltd v CCMA the Court warned that Commissioners should steer away from using credibility findings as an easy way of avoiding having to evaluate the inherent and relative probabilities of evidence. The parties challenged each other’s evidence largely on the credibility of the witnesses. In Stellenbosch Farmers’ Winery Group Ltd and another v Martell et Cie and others the Court held that where a Commissioner is faced with two conflicting versions before him, the Commissioner must make a finding on the credibility of witnesses and on the probabilities of the two versions, to determine where the truth lies. The applicant sought to given an account of what happened when she called Mhlongo to the front of the class. Her explanation seemed incomplete as she explained that she called her, asked her what she was laughing about and then ordered her back to her place. It has been the case of the applicant that she does employ a particular form of discipline towards her learners in the form of puffing them with duster or chasing them in class. In this instance she omitted the part where having found that Mhlongo had done something wrong, what her reaction was. Learner 2 testified, together with Learner 3, that when she was called forward for laughing she was beaten. The applicant’s version that she merely called her to the front, asked her why she laughed and ordered her back to her place is improbable.
[40] Learner 1, although she testified as to the character of the applicant and seemed to support the applicant’s version with regard to her methods of discipline, was not in the class where the alleged incidents took place as such could not testify as to whether they had happened or not. Nala’s testimony constituted hearsay in that she testified as to what she had been told by her granddaughter. The probative value of the testimony that the school had required the learners would have been higher had the learner testified herself. In Swiss South Africa (Pty) Ltd v Louw NO and others it was held that depending on the circumstances of each particular case hearsay may accordingly be admitted to the proceedings before the CCMA as commissioners are required to deal with their disputes with the least legal formalities. Section 3 of the Law of Evidence Amendment Act 45 of 1988 provides that the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends is one of the factors to be considered in determining whether to admit such evidence. The circumstances of this case were such that Nala had prevented her granddaughter from testifying at the disciplinary enquiry after receiving a call from the applicant. Nala herself testified as to how fond of the applicant she was. It is therefore in my view unreasonable to accept her testimony in this regard.
[41] It was the view of the respondent that the applicant would not have apologized had she not done anything wrong. I am inclined to accept this argument on the basis that the applicant had corroborated the version that she went to Mhlongo’s mother to apologize. It was the applicant’s version however, that when she went to apologize she made it clear to Mhlongo’s mother that she never did those things. Mhlongo’s mother was called at the arbitration to testify by the respondent and she testified that the applicant apologized for what she had done. The version that she did not apologize for what was alleged she had done and that she had made it clear to her that she did not do those things was not put to her. In Borwa Financial Services (Pty) Ltd v GIWUSA obo Motau and others it was held that evidence cannot be accepted as uncontested, where such evidence was not put to the witnesses of the opposing party or tested under cross-examination. It is my view that the applicant failed to properly challenge the testimony of the respondent’s witnesses, hence her case was based primarily on an allegation of victimization culminating in a trumped up case orchestrated by the respondent. The conspiracy alleged by the applicant cannot be sustained for the following reasons.
[42] The applicant sought to show that the learners who testified in support of the respondent’s case were not telling truth by pointing out fading memory was an indication of a made up story. It was also put to Learner 2 that the reason she was crying was because she knew that she was not telling the truth. Unfortunately both parties’ witnesses, including the applicant herself, had admitted to having not remembered certain details in full because the matter had happened a lot time ago. The fact that there was a conspiracy against the applicant that included convincing three learners to lie in testimony left the question as to why these particular learners were chosen unanswered. The challenge with not telling the truth is that one who tells is in not aware that as it is told, certain details appear inconsistent with others. The applicant under cross-examination stated that she would never call a learner stupid. She, however, in her evidence in chief had testified that she responded to Busisiwe’s answer by saying that she acts stupid while she is clever. This admission in my view also went someway, before even any other witness testified, to show that the applicant was capable of at least uttering disparaging words towards her students.
[43] The applicant’s reference to the letters referred to by Radebe appears to have also been an issue of the fairness of those letters having never been provided to the applicant, thereby straddling the line between substance and procedure. It was my understanding that in terms of the pre-arbitration minutes, procedure was not in dispute. Filta-Matrix (Pty) Ltd v Freudenberg it was held that agreements limiting issues may only be retracted if there are compelling grounds for doing so. In considering requests to allow further issues to be raised, commissioners should, amongst others, consider what the explanation is for not raising a particular issue at the pre-arbitration conference and the prejudice that the parties would suffer should the request be granted or not be granted. The applicant did not make a request to allow further issues to be raised.
Fairness of the disciplinary action
[44] Section 10 of the Schools Act prohibits corporal punishment in schools, and states that:
1) No person may administer corporal punishment at a school to a learner
2) Any person who contravenes subsection (1) is guilty of an offence, and liable to conviction to a sentence which could be imposed for assault
In Governing Body of the Juma Musjid Primary School v Essay and Public Servants Association of South Africa obo Ntsime v Education Labour Relations Council and Others the Courts recognized the obligation imposed by Section 28(2) of the Constitution on those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance. Arbitrators must therefore give consideration to the effect their decisions will have on the lives of children. It is therefore my finding that the disciplinary action short of dismissal imposed on the applicant did not constitute an unfair labour practice.
AWARD
[45] The applicant, Ms.NM Mthimkhulu, as represented by PEU, has not proven an unfair labour practice.
[46] The applicant is therefore not entitled to a remedy.
Signature:
ELRC Panellist: Mohau Clement Ntaopane
Province: Gauteng
Applicant: PEU OBO MTHIMKHULU, NM
Respondent: Department of Education -Gauteng
Issue: Unfair Dismissal - Misconduct
Award Date: 18 October 2019
Arbitrator: Mohau Clement Ntaopane
Case Number: PSES697-18/19GP
Arbitrator: Mohau Clement Ntaopane
Date of Award: 18 October 2019
In the ARBITRATION between
PEU OBO MTHIMKHULU, NM
(Applicant)
And
DEPARTMENT OF EDUCATION – GAUTENG
(Respondent)
Applicant’s legal representative: Lordwick Themba Tshangela
Rep/Applicant’s address:
Telephone:
Fax:
E-mail: thembatshangela@gmail.com
Respondent’s representative: Valerie Mnisi
Rep/Respondent’s address:
Telephone:
Fax:
E-mail: Nomvula.mnisi-dhlamini@gauteng.gov.za
DETAILS OF HEARING AND REPRESENTATION
[1] This is the award in the arbitration between Ms. M.N Mthimkhulu, as represented by PEU, the applicant, and Department of Education – Gauteng, the respondent.
[2] The arbitration was held under the auspices of the Education Labour Relations Council (ELRC) in terms of section 191(5)(a)(i) of the Labour Relations Act, 1995 as amended (“the LRA”) and Clause 17.2.1 of the ELRC Dispute Resolution Procedures. The award is issued in terms of Clause 18.5.1 of the ELRC Dispute Resolution Procedures.
[3] The arbitration was heard in parts on 27 August, 26 and 27 September 2019 at the ELRC Offices in Centurion. The applicant was represented by PEU Official, Mr. Lordwick Themba Tshangela, while the respondent was represented by Labour Relations Officer, Ms. Valeri Mnisi-Dhlamini.
[4] The process was conducted in English and digitally recorded. Ms. Nolufefe Ntikinta provided intermediary services, while Ms. Hlengiwe Mbele assisted with interpretation in Zulu. Both parties submitted bundles of documents into the record. Parties agreed to submit arguments in writing.
ISSUES TO BE DECIDED
[5] The dispute involves sanctions against the applicant for allegations of misconduct in the form of two months suspension and a final written warning valid for 6 months and I am to determine whether in so doing the respondent perpetrated unfair disciplinary action short of dismissal.
[6] The relief to be awarded is also in issue.
BACKGROUND TO THE DISPUTE (COMMON CAUSE FACTS)
[8] The applicant has been in the employ of the respondent as a Principal post level 04 at AB Xuma Primary School since 01 March 1978. She earns a monthly salary of R49196-22.
[9] The two allegations levelled against the applicant in terms of the pre-arbitration minutes – were as follows:
‘Allegation 1
• Physical assault against Busisiwe Mhlongo, Zandile Nala and Reabona Buzu
Allegation 2
• Verbal abuse against Busisiwe Mhlongo’.
[10] On 27 October 2018 the applicant was found guilty of the two allegations and the sanctions imposed were two months suspension without pay, a final written warning and a referral to EAP for anger management.
[11] The applicant referred a dispute to the council on 21 November 2018. A certificate of non-resolution was issued on 12 December 2018 and a referral to arbitration was made on 15 February 2019.
[12] At the arbitration both parties called as some of their witnesses, learners, some of whom where mentioned in the charges. In recording the testimony of the learners I will refer to them as “Learner 1” and so forth, depending on the order they testified. Their names can be confirmed on the audio recording and will also appear on the arbitration notes.
SURVEY OF THE RELEVANT EVIDENCE
[13] Ms. NM Mthimkhulu was the first witness to be called in support of her case. She testified that she was appointed into her post after she challenged not being appointed into the post and received an ELRC award confirming that she should be appointed into the post instead of “Mr. Radebe”. She disputed the first allegation as it appeared on page 18 of her bundle and explained that around November 2016 she was teaching her class and had asked them to stand by the board so that she could reach all of them. She noticed that Busisiwe was laughing together with a boy whose name she could not remember, She asked her to come to the front and asked her what she was laughing about and then ordered her to go back to her position. She asked a question, which Busisiwe answered correctly, to which she then said to her that she behaves as though she is stupid when she is not. Ms. Mthimkhulu stated that it was not true that she beat Busisiwe, whose testimony she found to be contradictory because she had said that she reported to her mother that she had pushed her to the point where she nearly fell next to a chair, whereas she never reported that she was beaten. She also felt that this testimony could not be reconciled with that of Ms. Khumalo who had stated that when Busisiwe was pushed she nearly fell next to the mini-library.
[14] Ms. Mthimkhulu disputed beating “Buzu” and also found his testimony to have been contradictory. She pointed out that Buzu that she had been beaten using a chalk board duster, but when asked who else was beaten she stated that she did not remember, only to later say that Busisiwe was beaten with a hand. Ms. Mthimkhulu also disputed beating Nala and referred to Buzu’s testimony that Nala was never beaten. Ms. Mthimkhulu found it strange that it had been alleged initially that she beat Nala, something that now the respondent in its opening statement seemed to be retracting. In her view the retraction came as a result of the respondent having heard the testimony of Nala’s grandmother having disputed that she was beaten when she testified in court. Ms. Mthimkhulu explained she has never engaged in such behaviour in all her years in the profession and that her record would confirm that. When she disciplines learners she would use the chalk board duster to smeer and “puff” them on their faces and order them not to clean off the smeer, or she would chase them around the classroom, something which they would enjoy as they would laugh.
[15] Ms. Mthimkhulu disputed the second allegation and stated that she has never used abusive language towards Busisiwe. What she remembered was that the three learners were in Grade 4C at the time and that she was busy collecting term marks. She had given the learners a mathematic project on data handling for which they had a week to research. While teaching the Grade 4B class she asked Nobelungu to go and call all those who had not submitted their projects. Busisiwe came with other learners and she asked her where their project was and she said she did not do it. She told Busisiwe that she had given them the whole week to do it and that since she needed the marks for the end of the term, she must go back and get it done before school closes. This was all she said to her and was surprised when Busi’s mother then wrote a letter to the principal saying that she should stop abusing the learners. Mr. Radebe, the former principal, called her to his office to find out whether she had done what had been alleged, that she had called Busisiwe stupid. In the office was also an HOD who was jotting down what she was saying. She disputed the allegations and said to Mr. Radebe that she did not really remember in all her years ever insulting a child and that the child may be called to come and confirm. This also started to infuriate her as Mr. Radebe was insisting that maybe she had forgotten.
[16] Ms. Mthimkhulu submitted further that when Busisiwe was called and asked to relate what had happened. Busisiwe said she no longer remembered and started crying, and was then released by Mr. Radebe. Mr. Radebe then required that an apology be delivered to Busisiwe’s mother. Ms. Mthimkhulu agreed to apologize for reprimanding Busisiwe, but not for allegedly using abusive language. Ms. Mthimkhulu also pointed out the fact that it was alleged that she had uttered these words in the presence of the Grade 4C learners, whereas it happened in Grade 4B. She went to Busisiwe’s mother to clear the issue, not to bribe her as it was alleged. She believed that it was important to maintain good rapport with the learners’ parents. Busisiwe’s mother welcomed her and in the end said that she will follow it up as the person who was insisting that she report the matter to the district was Mr. Radebe. Ms, Mthimkhulu was surprised by the fact that the district never engaged her on this issue, as such she considered it a plot against her. In her view it was after she had received the ELRC award that all the negativity about her started. On 1 March 2017 the SGB called a meeting and just before it started she and Mr. Radebe were asked by the SGB chairperson to recuse themselves from the meeting. The feedback she got about what happened at the meeting was that it was resolved that Mr. Radebe was going nowhere and at this time she had not even been privy to what the award said. On 5 March 2017 there was a parents meeting at which she was asked to recuse herself, together with the principal, however, at this meeting she refused on account of having been aware that she was the subject matter of the meeting. In that meeting the chairperson of the SGB incited parents against her, stating that she was misusing funds and that she had no morals.
[17] Ms. Mthimkhulu referred to page 33 of her bundle, a letter written to the dispute management and the circuit manager – IDSO, by Mr. Radebe on the alleged harassment of Busisiwe. In the letter Mr. Radebe stated that he had attached four items, letters. Ms. Mthimkhulu submitted that she has been shown any of the letters referred to, including the letter allegedly from the parent. This was why she felt that this was a plot against her since she has never been confronted about them. Only at the disciplinary hearing did she become aware that were such letters. She considered the finding of guilt against her to have been unfounded having never been exposed to those letters. She referred to page 34, a letter written by the motions and labour chairperson of her union after lodging a grievance on how she had been treated since receiving her award. It stated that she had been treated badly and that there had been rumours about her and letters written by the SGB without her knowledge. There were also pamphlets being distributed for the purposes of denting her image. The letter was sent to Mr. Mosuwe, the HOD, who escalated it to the director, Mr. Mkhulisi. The department did nothing about her grievance since she never received any feedback.
[18] In cross-examination Ms. Mthimkhulu was asked what question she had asked Busisiwe and what her response was. Ms.Mthimkhulu could not remember the question since it had happened over three years ago, nor could she remember the response, although she remembered that it was a positive answer. It was put to her the fact that she can remember that the answer was positive but cannot remember the question was an indication that she was not telling the truth. Ms. Mthimkhulu was asked why she had targeted Busisiwe when she called a group of learners to ask for their projects. Her response was that she did not target her, she only asked her because she was the group leader. Ms. Mthimkhulu was asked how she became aware of what had been said in the meeting. She responded that her colleagues told her that in the meeting it was said that Mr. Radebe is not going anywhere and that in the parents’ meeting Mr. Luthuli had said he will not allow two principals in the school, as such Mr. Radebe was not going anywhere. Even on page 36 it was said that they were going to retain Mr. Radebe in lieu of herself. Ms. Mthimkhulu was asked how the letters she said she never had sight of would have assisted her. Her response was that it was proper for her to see them so that she can know what was alleged against her, what the individual deliberations were and what were the responses. When asked whether the allegations were not given to her in time she disputed it and stated that all the allegations cropped up after the award which was issued in 2016, the responded waiting and collaborating, wanting information and only in 2017 when Mr. Radebe realized that the award was not in his favour did this matter start.
[19] Ms. Mthimkhulu was asked to separate the award from the allegations against her. Her response was that they could not be separated as they went hand in hand and that in her view she could see that it is what led to all of this. She was asked why she apologized and her response was that she needed to humble herself for the sake of the school, adding that she even said to Busisiwe’s mother that she did not do those things that were alleged and that perhaps it had been because she reprimanded her. Ms. Mthimkhulu was asked to explain how Nala’s grandmother came to be in court. She submitted that Nala’s grandmother had gone to school to deliver lunch and discovered that her child was not there. She contacted Nala’s grandmother and asked her if she was aware that Nala was in court and she did this because the grandmother and the uncle, after hearing about the allegations, had disputed them because Nala had been in tears telling them that the school was forcing her to say she had been punished. The grandmother even drafted an affidavit at the police station which appeared on pages 40 – 41. It was put to Ms. Mthimkhulu that having been aware that Nala’s name was on the charge sheet, she interfered with the case, and that she did so by even going to Busisiwe’s mother’s home. Her response was that she wanted to get to the truth. It was further put to Ms. Mthimkhulu that her interference with Nala’s grandmother led her to remove the stop the learner from testifying, as such the respondent could not pursue the allegation involving Nala. Ms. Mthimkhulu did not agree with the statement.
[20] Learner 1 was the second witness to be called by the applicant. She stated that in November 2016 she was in Grade 4B and that Busisiwe was in Grade 4C. On the day in question Ms. Mthimkhulu came into the class, greeted them and went to go sit down. She then sent Nobelungu to get Busi and the others in her group regarding their project. When Nobelungu came back with those that had not finished their project, Ms. Mthimkhulu asked Busisiwe where her project was. Busisiwe said that it was with one of her group. Ms. Mthimkhulu asked her to go and call that person; Busisiwe had come alone, When the group came back the question was asked again and they all pointed to each other saying it was with the next person. Ms. Mthimkhulu then told them to start the work again since she needed those marks. They then went back to their class to start doing the project. Ms. Mthimkhulu had been calm and talking the same way she usually talks to them in class. Learner 1 testified further that she has never heard Ms. Mthimkhulu swearing, nor did she hear her swearing at Busisiwe. In her view it would not make sense for Ms. Mthimkhulu to instruct them not to swear and then to turn around and swear herself. Learner 1 submitted lastly that Ms. Mthimkhulu would discipline them by puffing them with chalk or by chasing them with a “Kelloggs” or oats box.
[21] Ms. Thandi Octavia Nala, grandmother to Zandile Nala, the third witness to be called by the applicant. She disputed that her granddaughter appeared to have been assaulted when she came home as she did not appear to be injured. What she knew was that Ms. Mthimkhulu would chase them with a feather duster, something they seemed to enjoy. She confirmed that she had gone to the school and did not find her granddaughter. She was then called by Ms. Mthimkhulu who told her that her granddaughter was in court, something she was not aware of, nor did she expect it. Nor was she conspiring with Ms. Mthimkhulu to close the matter because she would not, at her age, come to court to tell lies. When she got to court Zandile was crying and when she asked her why, she told her that she did not like having to tell lies about someone. Zandile had told her even at home that the school had told the group to lie about Ms. Mthimkhulu. She did not, however, remember which “Ma’am” had told them to lie since this happened in 2016. Ms. Nala was referred to page 41, which at first she did not recognize, but later confirmed the signature that appeared therein to have been hers and that the document was drafted because she would not allow her grandchild to appear in court when she is supposed to be in school, particularly if she was going to be made to tell lies about Ms. Mthimkhulu.
[22] In cross-examination Ms. Nala conceded that Zandile’s parents had consented to her testifying in court, but held that they were not aware when they signed the consent paper they had not read it. When asked if a learner that was going to testify in support of the respondent’s case would be lying, her response was that if the learner would be saying anything that did not agree with what Zandile had said they would be lying. Ms. Nala was asked whether her granddaughter would come to testify at the arbitration as to what the truth was. Her response was that it was a pity that her parents would not allow that since she is supposed to be in school. Ms. Nala was asked what her relationship with Ms. Mthimkhulu was. She responded that she loved Ms. Mthimkhulu because she taught her children, one of which was now a lawyer. She added that she did not love like the school now because the last child does not like the school, always asking her to send her to another school without telling her why. When asked whether this was why she was defending Ms. Mthimkhulu, Ms. Nala responded that she was not defending Ms. Mthimkhulu, but defending the fact that she has been called to come and bear witness to allegations that Ms. Mthimkhulu is not right for the school and that she must be chased away. Ms. Nala held the view that it would not make sense that she would hit her last child while she never hit her other children.
[23] It was further put to Ms. Nala that the reason she was at the arbitration was because her granddaughter was the most beaten by Ms. Mthimkhulu. Ms. Nala responded that had that been the case she would have fetched her from school, which is what she usually does if something happens to her at school. When asked who had told her to say that Ms. Mthimkhulu chases the learners with a feather duster, Ms. Nala responded that it was her granddaughter. When asked as to whom between herself and her granddaughter would be best placed to tell exactly what happened in class, her response was that Zandile would tell the truth, however, she would not allow her to come since she is being taught to tell lies. It was her view that since a new principal came to the school things changed. She was then asked whether she was admitting that what she was saying was not the truth. She disputed the statement and held that she was telling the truth, the truth she had been told by Zandile. It was put to Ms. Nala that when Zandile first spoke to the investigator she spoke the truth. Her response was that she only said what she said because she was afraid, hence she cried the day she was in court. It was lastly put to Ms. Nala that she was an irrelevant witness because she was not a student or staff member at the school, therefore she would not know what takes place there. Her response was that she would know because she would be called if something happens, the same way she was called when Zandile had fainted.
[24] Learner 2 was the first witness to be called by the respondent. She testified that she was 13 years old and was in Grade 7C. In 2016 she was in Grade 4C and Ms. Mthimkhulu was her mathematics teacher. She submitted that Ms. Mthimkhulu had beaten Reabona on her hand and it swelled up. She did not know what happened with Zandile. Learner 2 testified that while in class she was sitting in Banele’s group and they made her laugh. Ms. Mthimkhulu then hit her on her back and pinched and pinched her on her hand. Reabona was hit on her on the tip of her fingers with a chalk duster, which was how Ms. Mthimkhulu usually disciplined them. She related an incident when Ms. Mthimkhulu had asked a question and the class had answered it incorrectly. When she raised her hand and answered it correctly Ms. Mthimkhulu said to her that she acts dumb when she is clever. She disputed that Ms. Mthimkhulu has ever chased them as a form of disciplining them. She confirmed that Nobelungu had been asked to call them so that they could be explained about the project. She submitted that Ms. Mthimkhulu said that she was fucking stupid, a bloody fool and shit. This was said in the presence of her class mates.
[25] Learner 2 submitted further that she cried after the incident and when she got home she was asked by her mother why she was crying. When she told her mother the reason her mother said that they must draft a letter and deliver it to the principal because Ms. Mthimkhulu should have apologized. She confirmed that Ms. Mthimkhulu did come to her house to apologize and that she even apologized in class for what she had done, which made her feel better. In cross-examination it was put to Learner 2 that she did not remember whether Zandile was hit or not because she was not telling the truth. She reiterated that she simply did not remember. When asked what had happened to Banele while she was beaten she submitted that Ms. Mthimkhulu beat both of them. When asked as to when Reabona was beaten she submitted that it was not the same time Ms. Mthimkhulu beat them for laughing. She was referred to her previous statement as it appeared on page 24 of the applicant’s bundle where she said that she did see Reabona being beaten and that she only became aware of it because Reabona had told her. She confirmed that this was what happened and added that she also saw her bandaged hand.
[26] Learner 2 was asked in which class was she was insulted by Ms. Mthimkhulu and her response was in 4C. When asked whether she gave Ms. Mthimkhulu the project when she was asked for it her response was that she did. It was put to her that Ms. Mthimkhulu stated that she did not get the project from her, to which she submitted that she had been asked as the group leader and she had asked Philile to do it because she would not have been able to do it. Philile had written the wrong answers and when Ms. Mthimkhulu asked who had written the incorrect answers she said it was Philile. Learner 2 was asked to tell the truth because she had said that Nobelungu had called her to 4B, while she was now saying that she was insulted in 4C. Her response was that she was insulted in 4C and that what happened in 4B was Ms. Mthimkhulu explaining how to do the project. It was put to her that she was telling lies because Ms. Mthimkhulu and Learner 1 had testified that Ms. Mthimkhulu had asked for the project in 4B, to which Learner 2 responded that she was not telling lies. Learner 2 was asked how her relationship with Ms. Mthimkhulu was at the moment. She responded that it was fine since Ms. Mthimkhulu was no longer teaching her. When asked how she would feel if Ms. Mthimkhulu were to teach her again she stated that she would not be comfortable. It was put to her that it is because of knowing that she had testified lies about her, to which she reiterated that she was telling the truth. Learner 2 confirmed that she once lied to a fellow learner about where they had been when they came back from court because she did not want them to know.
[27] Learner 3, aged 13, was the second witness to be called by the respondent. He testified that he was in Grade 7 and that in 2016 he was in Grade 4 and that Ms. Mthimkhulu taught him mathematics. He submitted that Ms. Mthimkhulu hit them because someone answered incorrectly in class. He had given an incorrect answer and Ms. Mthimkhulu called him to the front of the class and hit him twice on the back of his hand with a chalk board duster. He was injured as a result and his mother took him to a hospital. He submitted that Busisiwe, Banele and Zandile were also hit by Ms. Mthimkhulu. He did not remember how Busisiwe was hit, nor did he remember how Zandile was hit, although he remembered that she had a bump on her head. Learner 3 submitted further that Ms. Mthimkhulu said to Busisiwe that she was fucking stupid. Learner 3 submitted lastly that he has never seen Ms. Mthimkhulu puff anyone with a chalk board duster or chase anyone, unless this was what she did in other classes.
[28] In cross-examination Learner 3 confirmed that Busisiwe was told that she was clever but acted dumb. He submitted, however, that it was not on the same day. When asked how Ms. Mthimkhulu hit Busisiwe, he stated that she slapped her. He did not, however, know where Busisiwe was pushed. When asked whether he remembered saying she had a bump on her head he confirmed this. When asked as to where Ms. Mthimkhulu would push her he stated that it was on her forehead with a finger and her chest. He was then asked whether she fell, and his response was that she balanced herself against a wall. Learner 3 confirmed that Busiswe had been called to 4B by Ms. Mthimkhulu and submitted that when she came back she explained to them how the project must be done. He did not remember whether Busisiwe had told her that she had shouted at her, nor whether her mood had changed when she returned. Learner 3 was referred to page 23 of the applicant’s bundle in terms of which when he had earlier stated he did not remember where Busisiwe was hit. His response was that he did not remember. Learner 3 was asked what happened the next day after he had been beaten and taken to the hospital. His response was that he went to school. It was then put to him that in terms of his earlier statement he did not go to school for two days because his hand was swollen. His response was that it was true that he did not go to school for two days, but after that he was able to go to school.
[29] Mr. Bhekisiza Radebe, Principal, was the third witness to be called by the respondent. He confirmed that in 2016 he was the principal and manager of the school and that he started in his role in August 2016. Ms. Mthimkhulu was his deputy and a Grade 4 mathematics educator. He was referred to page 10 of the respondent’s bundle and confirmed that he was the author of the letter. He had written the letter as a result of a learner telling him that she was insulted by Ms. Mthimkhulu. The learner had said that Ms. Mthimkhulu said she was a fucking stupid and a fool, and she was crying profusely as she related this. Ms. Mthimkhulu denied what the learner had said. Upon seeing the nature and manner in which the learner had presented the matter he could see that there was something underlying. Seeing as how he was not a specialist who could investigate, he allowed the department the opportunity to deal with the matter. Mr. Radebe submitted that he had a good relationship with Ms. Mthimkhulu and referred to a number of projects that were successful during the year and competitions that had been won. In his view the atmosphere was good.
[30] Mr. Radebe submitted that there was, however, a meeting in which they were asked to recuse themselves because it concerned them. Ms. Mthimkhulu then came to his office when he was with Busisiwe’s parent and before he could hear what the parent was coming to say, Ms. Mthimkhulu approached him and said to him that he was digging a grave, pointing at him and said that he will see. She also asked the parent why she was there because she thought the matter had been resolved. Mr. Radebe testified further that he would not know what is happening in Ms. Mthimkhulu’s class room while she teaching, although as a principal he usually did his rounds, which, however, would not involve interfering with the teaching. He had overheard during the investigation that Ms. Mthimkhulu was alleged to have thrown a duster at a learner and since it was not reported to him he did not deal with it. Mr. Radebe submitted that in the letter by Busisiwe’s mother he was asked to intervene and to ask Ms. Mthimkhulu not to abuse the learner verbally and that she needed to apologize to the learner in front of other learners as the incident had happened in their presence. Ms. Mthimkhulu reported to him in a meeting that she had apologized and in his view someone could only apologize if they were guilty of something and wanted to show remorse and ubuntu because they had done something that may not have been intentional.
[31] In cross-examination Mr. Radebe was asked to explain why he was no longer a principal at that particular school and his response was that he had been appointed at another school after Ms. Mthimkhulu received an award in terms of which she was appointed the principal. He was, however, not aware of the arbitration and only became aware of the outcome. He stated that at the time Mr. Ndlovu was the school IDSO. Mr. Radebe was referred to page 33 of the applicant bundle, the same letter he referred to in his testimony and alerted to the fact that he cited four attachments in the letter, one of which was a letter from the learner. He was asked what the learner had said in the letter and his response was that there was no letter from the learner and that the only one he remembered was from the parent. When asked how then this came to be part of his letter and his response was that this thing happened a long time ago as such he could not remember, and that perhaps he had asked the learner to tell him what happened. He however stated that the learner must have written a letter because he would not have referred to it in his letter if that was not the case.
[32] Mr. Radebe was then asked whether any intervention had been taken with regard to the traumatized learner and he confirmed that female teachers spoke to her. When asked how effective was the intervention he stated that he was not an expert, however, he could see that the learner was not herself and that her performance had taken a dip. It was put to Mr. Radebe that at the time Mr. Peter Nhlapo was the IDSO, and not Mr. Ndlovu as he had testified. He disputed the statement and reiterated that it was Mr. Ndlovu. It was also put to Mr. Radebe that he conveniently did this together with Mr. Ndlovu because he had an agenda against the applicant. Mr. Radebe said that was not him and highlighted the fact that he reported to the IDSO as much as the deputy principal reported to him and that one could not jump line functions in the Department of Education. It was further put to Mr. Radebe that he cited four attachments while the applicant party has never seen any of them. His response was that he did not keep documents since it was something that had been escalated, as such he could not go back to the school to ask where the documents were.
[33] Ms. Sbongile Mhlongo, Busisiwe’s mother, was the fourth witness to be called by the respondent. She testified that Busisiwe came home crying and told her that Ms. Mthimkhulu had pushed and pinched her for having laughed with Banele. She also told her that Ms. Mthimkhulu had hit her with a duster on her hand. At the time she spoke to Banele’s mother who works at the school and asked her to speak to Ms. Mthimkhulu to not do such things. Banele’s mother told her that she had already spoken with Ms. Mthimkhulu because Banele had already told her what happened and that Ms. Mthimkhulu had apologized. Since she was of the view that something like this would not happen again, she did not report it to the principal. It did not, however, stop as Busisiwe again came home crying saying that Ms. Mthimkhulu had said fucking stupid, bloody fool and shit to her. She then wrote a letter to the principal and asked Busi to deliver it so that the principal can ask Ms. Mthimkhulu to not do this anymore as Busisiwe was scared to go to school. The principal spoke to Ms. Mthimkhulu, together with another Ma’am and Busisiwe about the letter. Ms. Mthimkhulu contacted her telephonically and said she was sorry about what she had done because she was now being called to the principal’s office. Ms. Mthimkhulu also asked her why she had not spoken to her about it.
[34] Ms. Mhlongo submitted further that her response to Ms. Mthimkhulu’s apology was that she accepted it, but that since this was not the first time something like this happened she would appreciate if she could go and apologize to Busisiwe in front of the class because the learners were now laughing at her child. Ms. Mthimkhulu confirmed that as soon as she put down the phone she was going to do just that. Ms. Mhlongo submitted that while Busisiwe did confirm that Ms. Mthimkhulu apologized in front of the class, she was still hurt because her child was not ok and appeared to always be down. Ms. Mthimkhulu also came to her house with Banele’s mother in order to ask for forgiveness. In her view Ms. Mthimkhulu was apologizing for having pushed and sworn at Busisiwe. Ms. Mhlongo submitted that she would always receive calls from the school saying that Busisiwe was not doing well and that she was barely passing, something which has, however, improved since last year when Ms. Mthimkhulu was not there.
[35] In cross-examination it was highlighted to Ms. Mhlongo that she referred to only the pushing and insulting of Busisiwe as the reasons she felt Ms. Mthimkhulu was apologizing for and asked why she did not highlight the beating, if that indeed was also true that it happened. Ms. Mhlongo responded that she thought Ms. Mthimkhulu was apologizing for everything. She also stated that Ms. Mthimkhulu did hit Busisiwe with a duster on her hand, and that although she was not necessarily hurt, her spirit was hurt as she was no longer the same. Ms. Mhlongo was asked whether she knew that her Busisiwe sometimes lied and her response was that she did not know her to be a liar. She was asked what feedback Busisiwe has given her about her relationship with Ms. Mthimkhulu. Her response was that Busisiwe has told her that since Ms. Mthimkhulu came back she would come to her class and even greet her. When asked how she felt about this she stated that she did not see anything wrong since Ms. Mthimkhulu was no longer teaching her.
ANALYSIS OF EVIDENCE AND ARGUMENT
[36] Section 185(b) affords every employee the right not to be subjected to unfair labour practice. Section 186(2)(b) considers an unfair labour practice the unfair suspension or any other unfair disciplinary action short of dismissal in respect of an employee. It is for the applicant to prove that the conduct or practice complained of can be characterized as an unfair labour practice in terms of section 185(b) – Nawa & another v Department of Trade & Industry .
[37] John Grogan in analyzing the provision of section 186(2)(b) stated that:
“To fall within the terms of section 186(2)(b), disciplinary action against an employee short of a dismissal must be disciplinary both in nature and intent. Action is “disciplinary” if it is aimed a correcting errand behaviour for which the employee is responsible.”
In NUM v Martin and East (Pty) Ltd the Court held that suspension without pay as a form of disciplinary penalty may be considered as an alternative to dismissal if there is a valid reason for that penalty. In SAPO v Jansen Van Vuuren NO and others the Court held that Commissioners may set aside suspensions imposed as a disciplinary penalty if found, on the merits, that the employee was not guilty of the conduct for which they were suspended.
Arguments
[38] The applicant failed to submit written arguments as agreed. In its argument the respondent advanced that it had led evidence that was consistent, reliable and corroborated. The respondent held the view that Radebe’s evidence that Mthimkhulu apologized to Mhlongo in front of her classmates was never rebutted. It was also not disputed that Mthimkhulu apologized to Mhlongo’s mother for pushing, assaulting and insulting Mhlongo. It was the Respondent’s view that Mthimkhulu would not have apologized had she done nothing wrong. Learner 1’s testimony was considered irrelevant by the respondent as nothing had happened in her class. Nala’s evidence was held to have been a mere denial of the allegation, supported by an unsubstantiated claim of conspiracy against Mthimkhulu. The respondent found the case of Mthimkhulu based on conspiracy and jealousy stemming from an award appointing her as principal unfounded as it did not establish the learners cited in the allegations’ part to play in the appointment processes of the department. The respondent argued that the applicant had failed to discharge the onus of proof and as such her claim of unfair labour practice stood to be dismissed. The respondent held the decision to discipline the applicant to have been fair having considered the consequences of the transgression.
Probabilities
[39] In Sun International Management (Pty) Ltd v CCMA the Court warned that Commissioners should steer away from using credibility findings as an easy way of avoiding having to evaluate the inherent and relative probabilities of evidence. The parties challenged each other’s evidence largely on the credibility of the witnesses. In Stellenbosch Farmers’ Winery Group Ltd and another v Martell et Cie and others the Court held that where a Commissioner is faced with two conflicting versions before him, the Commissioner must make a finding on the credibility of witnesses and on the probabilities of the two versions, to determine where the truth lies. The applicant sought to given an account of what happened when she called Mhlongo to the front of the class. Her explanation seemed incomplete as she explained that she called her, asked her what she was laughing about and then ordered her back to her place. It has been the case of the applicant that she does employ a particular form of discipline towards her learners in the form of puffing them with duster or chasing them in class. In this instance she omitted the part where having found that Mhlongo had done something wrong, what her reaction was. Learner 2 testified, together with Learner 3, that when she was called forward for laughing she was beaten. The applicant’s version that she merely called her to the front, asked her why she laughed and ordered her back to her place is improbable.
[40] Learner 1, although she testified as to the character of the applicant and seemed to support the applicant’s version with regard to her methods of discipline, was not in the class where the alleged incidents took place as such could not testify as to whether they had happened or not. Nala’s testimony constituted hearsay in that she testified as to what she had been told by her granddaughter. The probative value of the testimony that the school had required the learners would have been higher had the learner testified herself. In Swiss South Africa (Pty) Ltd v Louw NO and others it was held that depending on the circumstances of each particular case hearsay may accordingly be admitted to the proceedings before the CCMA as commissioners are required to deal with their disputes with the least legal formalities. Section 3 of the Law of Evidence Amendment Act 45 of 1988 provides that the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends is one of the factors to be considered in determining whether to admit such evidence. The circumstances of this case were such that Nala had prevented her granddaughter from testifying at the disciplinary enquiry after receiving a call from the applicant. Nala herself testified as to how fond of the applicant she was. It is therefore in my view unreasonable to accept her testimony in this regard.
[41] It was the view of the respondent that the applicant would not have apologized had she not done anything wrong. I am inclined to accept this argument on the basis that the applicant had corroborated the version that she went to Mhlongo’s mother to apologize. It was the applicant’s version however, that when she went to apologize she made it clear to Mhlongo’s mother that she never did those things. Mhlongo’s mother was called at the arbitration to testify by the respondent and she testified that the applicant apologized for what she had done. The version that she did not apologize for what was alleged she had done and that she had made it clear to her that she did not do those things was not put to her. In Borwa Financial Services (Pty) Ltd v GIWUSA obo Motau and others it was held that evidence cannot be accepted as uncontested, where such evidence was not put to the witnesses of the opposing party or tested under cross-examination. It is my view that the applicant failed to properly challenge the testimony of the respondent’s witnesses, hence her case was based primarily on an allegation of victimization culminating in a trumped up case orchestrated by the respondent. The conspiracy alleged by the applicant cannot be sustained for the following reasons.
[42] The applicant sought to show that the learners who testified in support of the respondent’s case were not telling truth by pointing out fading memory was an indication of a made up story. It was also put to Learner 2 that the reason she was crying was because she knew that she was not telling the truth. Unfortunately both parties’ witnesses, including the applicant herself, had admitted to having not remembered certain details in full because the matter had happened a lot time ago. The fact that there was a conspiracy against the applicant that included convincing three learners to lie in testimony left the question as to why these particular learners were chosen unanswered. The challenge with not telling the truth is that one who tells is in not aware that as it is told, certain details appear inconsistent with others. The applicant under cross-examination stated that she would never call a learner stupid. She, however, in her evidence in chief had testified that she responded to Busisiwe’s answer by saying that she acts stupid while she is clever. This admission in my view also went someway, before even any other witness testified, to show that the applicant was capable of at least uttering disparaging words towards her students.
[43] The applicant’s reference to the letters referred to by Radebe appears to have also been an issue of the fairness of those letters having never been provided to the applicant, thereby straddling the line between substance and procedure. It was my understanding that in terms of the pre-arbitration minutes, procedure was not in dispute. Filta-Matrix (Pty) Ltd v Freudenberg it was held that agreements limiting issues may only be retracted if there are compelling grounds for doing so. In considering requests to allow further issues to be raised, commissioners should, amongst others, consider what the explanation is for not raising a particular issue at the pre-arbitration conference and the prejudice that the parties would suffer should the request be granted or not be granted. The applicant did not make a request to allow further issues to be raised.
Fairness of the disciplinary action
[44] Section 10 of the Schools Act prohibits corporal punishment in schools, and states that:
1) No person may administer corporal punishment at a school to a learner
2) Any person who contravenes subsection (1) is guilty of an offence, and liable to conviction to a sentence which could be imposed for assault
In Governing Body of the Juma Musjid Primary School v Essay and Public Servants Association of South Africa obo Ntsime v Education Labour Relations Council and Others the Courts recognized the obligation imposed by Section 28(2) of the Constitution on those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance. Arbitrators must therefore give consideration to the effect their decisions will have on the lives of children. It is therefore my finding that the disciplinary action short of dismissal imposed on the applicant did not constitute an unfair labour practice.
AWARD
[45] The applicant, Ms.NM Mthimkhulu, as represented by PEU, has not proven an unfair labour practice.
[46] The applicant is therefore not entitled to a remedy.
Signature:
ELRC Panellist: Mohau Clement Ntaopane