Case Number: PSES608-18/19WC
Province: Western Cape
Applicant: SADTU OBO J C DEMPERS
Respondent: Department of Education Western Cape
Issue: Unfair Dismissal - Misconduct
Award Date: 30 October 2019
Arbitrator: Jacques Buitendag
Commissioner: Jacques Buitendag
Case No.: PSES608-18/19WC
Date of Award: 30 October 2019
In the Arbitration between:
SADTU OBO J C DEMPERS
DEPARTMENT OF EDUCATION – WESTERN CAPE
Union / Applicant’s representative: Mr J Dimande
Telephone: 021 951 7162
Telefax: 021 951 7163
Respondent’s representative: Ms. G Khan
Telephone: 021 467 2206
Telefax: 021 425 8612
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The arbitration hearing under the auspices of the Education Labour Relations Council (ELRC) took place on 12 April-, and 17 September 2019 in Cape Town. The applicant, Mr. J C Dempers was represented by Mr. J Dimande, an official of SADTU. Ms. G Khan represented the respondent, the Department of Education – Western Cape. The proceedings were digitally recorded.
2. At the conclusion of the arbitration the parties agreed to submit written closing arguments by no later than 27 September 2019. I have received the respondent’s arguments on this day. On 27 September 2019 Mr. Dimande requested an extension until 30 September 2019 to submit his closing arguments. The extension was granted. At the time of writing this award the applicant party did not submit written closing arguments.
THE ISSUE IN DISPUTE
3. I must determine whether the respondent unfairly dismissed the applicant and if so, I must determine the appropriate remedy.
BACKGROUND TO THE ISSUE
4. The applicant was employed as a Post Level 1 Educator at Bellville Technical High School for 24 years. On 24 April 2018 the respondent informed the applicant to attend a disciplinary hearing on 8 May 2018 and answer to two charges of misconduct. The charges read as follows:
“Charge 1: It is alleged that you are guilty of misconduct in terms of section 17(1)(d) of the of the Employment of Educators Act 76 of 1998 (EEA) in that on or about 6 March 2018 you seriously assaulted, with the intension to cause grievous bodily harm, Cee-Jay Sha, a student enrolled to write a Senior Certificate supplementary examination at Bellville Technical High School, by punching him in the mouth and/or face.
Alternative to charge 1: It is alleged that you are guilty of misconduct in terms of section 18(1)(r) of the Act in that on or about 6 March 2018 you assaulted, Cee-Jay Sha, a student enrolled to write a Senior Certificate supplementary examination at Bellville Technical High School, by punching him in the mouth and/or face.
Charge 2: It is alleged that you are guilty of misconduct in terms of section 18(1)(r) of the Act in that on or about 6 March 2018 you assaulted a grade 12 learner at Bellville Technical High School by pushing her down the stairs.” To protect the identity of the learner, she will be referred to as “Learner A”.
5. At the disciplinary hearing the applicant pleaded not guilty to charges 1 and 2 but pleaded guilty to the alternative charge 1. The chairperson of the disciplinary hearing found the applicant guilty on both charges. The chairperson issued the applicant with the sanction of dismissal on 20 August 2018. The applicant lodged an appeal against the finding and sanction with the Minister of Education – Western Cape. On 15 October 2018 the Minister, Ms. D Schafer, dismissed the applicant’s appeal.
6. The applicant then referred an unfair dismissal dispute to the ELRC and a certificate of non resolution of the dispute was issued on 30 November 2018. On 8 February 2019 the applicant applied for arbitration of the dispute. The applicant does not deny that he hit Mr. Sha in the face but he claims that it was self-defence. He denies assaulting Learner A. The applicant claims that the dismissal was substantively unfair and he seeks retrospective reinstatement as primary relief. The respondent claims that the applicant’s dismissal was fair. The procedural fairness of the dismissal is not in dispute.
SUMMARY OF EVIDENCE AND ARGUMENT
7. During the proceedings both parties submitted documents into evidence. The respondent called four witnesses and the applicant testified. I have considered all the evidence and argument presented in this arbitration, but because section 138(7) of the Labour Relations Act, 66 of 1995 (LRA) requires an award to be issued with brief reasons for the findings, I shall only refer to the evidence that I regard as necessary to substantiate my findings in the determination of the dispute.
The respondent’s case
8. Learner A testified under oath. Learner A testified that she and Mr. Sha was dating at the time of the incident being 6 March 2018. On this day Mr. Sha accompanied her to her classroom. Learner A testified that when they walked past the applicant, Mr. Sha greeted him and the applicant said something back, which she did not hear. She explained that they proceeded to walk up a staircase. The applicant followed them and shouted at Mr. Sha. An altercation took place between the applicant and Mr. Sha about Mr. Sha not being allowed in that part of the school premises. Learner A testified that when she stepped in between the applicant and Mr. Sha, the applicant pushed her aside and she fell. Learner A said that she saw the applicant throwing the first punch. Mr. Sha and the applicant wrestled with each other and they landed at the bottom of the stairs. Leaner A testified that there were several leaners between her and the applicant and Mr. Sha and that she could see for a while what was taking place.
9. Learner A explained that she witnessed Mr. Sha and the applicant being pulled apart by leaners. She said that the applicant then broke free and punched Mr. Sha in the face. She saw blood coming from Mr. She’s mouth. Learner A said that she never experienced such violence at the school.
10. Under cross-examination Learner A agreed that Mr. Sha was a learner at the school in 2017 and was not supposed to accompany her to her class. She testified that Mr. Sha said something in Afrikaans to the applicant but that she cannot say if Mr. Sha has used “gangster” language. She agreed that Mr. Sha did not stop when the applicant asked him to and that Mr. Sha proceeded to accompany her up the stairs. Learner A also agreed that Mr. Sha refused to come down the stairs when the applicant told him to. She maintained that the applicant pushed her when she tried to intervene. Leaner A agreed that she could not see who threw the first punch. She agreed that she saw Mr. Sha landing on top of the applicant after they rolled down the stairs. Learner A maintained that she did not see Mr. Sha hitting the applicant when he was on top of him. She denied that she is protecting Mr. Sha. Learner A explained that when the applicant and Mr. Sha was fighting she did see some other learners hitting the applicant.
11. Mr. Cee-Jay Sha testified under oath. He is 20 years old. Mr. Sha testified that on 6 March 2018 he was at the school to write a supplementary exam. He said that he accompanied Leaner A to her classroom. Mr. Sha testified that he greeted the applicant when he passed him and that he and Learner A proceeded up the stairs. Mr. Sha testified that he did not like how the applicant spoke to him when he asked him what he was doing there.
12. He said that the applicant followed them up the stairs. A scuffle ensued between the two of them and the applicant pushed Learner A when she came between them. Mr. Sha explained that he and the applicant were wrestling with each other and in the process they rolled down the stairs. He said that he landed on top of the applicant and punched the applicant two or three times in the face. Mr. Sha testified that he cannot recall the applicant punching him. He felt kicks from learners who surrounded them. The leaners then pulled them apart. Mr. Sha testified that he thought that the fight was over. He said that he looked down to find his shoe and bag when he was punched out of nowhere. As result of the punch lost two of his teeth, there were blood running from his mouth, and he felt dizzy.
13. Mr. Sha was referred to a medical practitioner report (J88) which indicated that he suffered multiple abrasions and contusions on the face, upper arms and back and two totally dislodged teeth as result of blunt force trauma.
14. Under cross-examination Mr. Sha confirmed that he was not a student that school when the incident took place and that he accompanied Learner A to her classroom on the day in question. Mr. Sha agreed that when the applicant told him that he is not supposed to be there that he replied with “jy gaan nie vir my sê nie” (you are not going to tell me what to do) and that he and Learner A proceeded up the stairs. Mr. Sha agreed that he had no right to be there. He agreed that if he had stayed at the reception area as he was supposed to do that the incident would not have happened.
15. Leaner B testified under oath. Because he is under aged and still a learner at the school his identity is protected.
16. He testified that Mr. Sha and Learner A was walking past the applicant’s classroom when the applicant asked him what he was doing there. Mr. Sha responded with “what are you going to do about it”. Learner B explained that the applicant followed Mr. Sha and Leaner A up the stairs. Mr. Sha threw a fake punch at the applicant and they then grabbed each other. The applicant respondent with is punch of his own to the side of Mr. Sha’s face. They then wrestled with each other and rolled down the stairs. Learner B testified that he witnessed how Mr. Sha was punching the applicant in the face.
17. He explained that learners then pulled the applicant and Mr. Sha apart. The applicant however broke loose and proceeded to threw a final punch which landed on Mr. Sha’s face. Learner B said that he saw blood on Mr. Sha’s face.
18. Under cross-examination Leaner B agreed that Mr. Sha was not supposed to have accompanied Leaner A to her class room and that Mr. Sha as supposed to be in the school hall writing a supplementary exam.
19. Mr. M Koopman testified under oath. He is the Principal of Bellville Technical High School for 5 years. Mr. Koopman explained that Mr. Sha was at the school on 6 March 2019 to write a supplementary exam. Mr. Koopman testified that Mr. Sha had no permission to have been in the area of the school premises where the applicant has found him. He added that this does not excuse the applicant’s conduct.
20. Mr. Koopman testified that he was made aware of the incident that happened between the applicant and Mr. Sha. He said that he saw Mr. Sha’s face was swollen and bloodied. He also saw blood on the applicant’s one hand.
21. He testified that educators are aware that they cannot assault learners and that the applicant could have reported to him or to one of his deputies that Mr. Sha was where he was not supposed to be.
22. Mr. Koopman referred to a cautionary letter from the WCED that he presented to the applicant in February 2018. The applicant was cautioned that allegations of assault / corporal punishment were received by the department but that the parent of the leaner does not want to continue with the matter. The applicant was instructed in the letter to take the necessary caution when dealing with ill-disciplined leaners and to adhere to the Code of Professional Ethics of the South African Council of Educators (SACE).
23. Under cross-examination, Mr. Koopman agreed that the applicant was an excellent educator.
The applicant’s case
24. Mr. J C Dempers testified under oath. Mr. Dempers testified that he is good educator with a 100% pass rate for the past seven years and that he has good relationships with the leaners.
25. Mr. Dempers said that Mr. Sha was not a leaner at the school in 2018 and that he only approached Mr. Sha on the day in question because he was not supposed to be where he was. He regarded Mr. Sha as a private person.
26. Mr. Dempers testified that when he told Mr. Sha politely that he was not where was supposed to be, Mr. Sha responded with “jy sê nie vir my nie” and proceeded up the stairs. Leaner A told him to just F…off. He said that there were several leaners around.
27. Mr. Dempers explained that when he approached Mr. Sha on the stairs, Mr. Sha pushed him and his reading glassed fell on the floor. Mr. Sha then proceeded to punch him in the face and they then grabbed each other. It was at this stage that Leaner A move between them. He said that she fell to the ground during the scuffle between him and Mr. Sha but that he did not push her. Mr. Dempers explained that he and Mr. Sha rolled down the stairs and that Mr. Sha landed on top of him. Mr. Sha then started punching him in the face and he felt a kick from one of the leaners. Mr. Dempers testified that when the learners pulled them apart, Mr. Sha again came slightly forward. He then swung and hit Mr. Sha on the mouth.
28. Mr. Dempers testified that he just did his duty as an educator and had no intention to fight or to injure Mr. Sha. He said that he was booked off for 2-3 weeks because of a swollen face and hand. Mr. Dempers submitted that he is aware of the rules against corporal punishment and assault but that he just defended himself.
29. Mr. Dempers testified that he did not push Learner A. He explained that he has apologised to Mr. Sha’s mother and has paid R27 500.00 to her for Mr. Sha’s medical expenses.
30. Under cross-examination Mr. Dempers testified that he is not aware of a 2008 allegation of assault that was levelled against him. He is aware of a 2013 allegation that he assaulted / smacked a leaner. He has entered a guilty plea and received a final written warning and a fine. He acknowledged that he received the cautionary letter from the WCED in February 2018.
31. Mr. Dempers denied throwing the first punch and said that Mr. Sha was the aggressor. He acknowledged that he also threw a punch when he and Mr. Sha was on top of the stairs but said that he missed. Mr. Dempers reiterated that Mr. Sha pushed him down the stairs and then proceeded to punch him in the face. Mr. Dempers testified that he threw the final punch only because Mr. Sha was again coming for him.
32. During re-examination Mr. Dempers testified that he is currently unemployed. When the respondent’s representative protested to his evidence, Mr. Dempers acknowledged that he is teaching at Milnerton High School in a School Governing Body post.
33. The written arguments of the respondent are on record and I do not find it necessary to repeat it here in full. In short, Ms. Khan argued that, for the purposes of the main charge 1, Mr. Sha should be regarded a learner / student at the time of the incident because he was registered write a supplementary exam. She argued that the applicant is guilty charges 1 and 2 and that his dismissal was substantively fair.
ANALYSES OF EVIDENCE AND ARGUMENTS
34. Section 192 of the LRA provides that the employee must establish the existence of a dismissal and if that has been established the employer bears the onus to prove on a balance of probabilities that the dismissal is fair. It is common cause that the respondent dismissed the applicant.
35. I will first deal with the substantive fairness of the dismissal. In deciding the substantive fairness of the applicant’s dismissal I must consider Schedule 8, item 7 of the Code of Good Practice on Dismissal. In this regard the Code states that an arbitrator must consider:
“Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to the workplace; and if a rule or standard was contravened, whether or not
• the rule was a valid or reasonable rule or standard
• the employee was aware, or could reasonably be expected to have been aware, of the rule or standard
• the rule or standard has been consistently applied by the employer and
• dismissal was an appropriate sanction for the contravention of the rule or standard”
36. In deciding the substantive fairness of the applicant’s dismissal I must also take into account the principals laid down by the Constitutional Court in Sidumo and Congress of South African Trade Unions v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC). The Constitutional Court held that fairness requires a balancing of the interest of the employer and employee parties. An arbitrator must consider the totality of circumstances in determining the fairness of the sanction. In terms of the Sidumo judgment, the commissioner must inter alia:
• take into account the importance of the rule that was breached, the reason why the employer imposed the sanction of dismissal and the basis of the employee’s challenge to the dismissal
• consider the harm caused by the employee’s conduct and whether the misconduct is serious and makes a continued employment relationship intolerable
• consider whether additional training and instruction may result in the employee not repeating the misconduct
• consider the effect of dismissal on the employee
• consider the employee’s service record
37. It was not the applicant’s case that he is unaware of rules against assaulting learners or other persons or that these rules were not consistently applied by the respondent. The applicant has also not challenged that dismissal was the appropriate sanction for contravention of these rules. The applicant’s case is simply that he did not push Leaner A and that, in as far as Mr. Sha is concerned, his actions were in self-defence.
38. All the witnesses who testified has, in some way, contradicted each other. I am however alive to the fact that in the heat of a fight witness observations may differ.
39. Leaner A, did not impress as a witness. I got the sense that she tried to minimise Mr. Sha’s assault on the applicant. She claimed in her evidence in chief that the applicant threw the first punch but after being pressed during cross examination she agreed that she does not know who threw the first punch. She also claimed in her evidence chief of being obstructed by other leaners when Mr. Sha and the applicant landed at the bottom of the stairs yet she admitted under cross-examination that that she saw Mr. Sha landing on top of the applicant after they rolled down the stairs. She claimed not seeing Mr. Sha hitting the applicant when he was on top of him but Mr. Sha himself (and Learner B) testified that when he landed on top of the applicant he started throwing punches to the face of the applicant.
40. The applicant has also not impressed me as a witness and was he caught in a lie when he testified that he is unemployed whilst he is in fact currently teaching in a SGB post. I have found the evidence of Leaner B to be have straightforward and to the point and I have no reason to doubt his credibility.
41. It is clear that Mr. Sha is not an innocent victim. But he has also not portrayed himself as such. He admitted that he knowingly broke the rules when he accompanied his girlfriend, Learner A, to her class. He also provoked the applicant by ignoring instructions and saying to the applicant that he must not tell him what to do. When he landed on top of the applicant he could have used this opportunity to move away but he chose to lay into the applicant with his fists. Such violence against an educator cannot be condoned.
42. The evidence shows that it was at this point that some of the leaners intervened and pulled Mr. Sha and the applicant apart. The applicant then broke free and landed a final punch. The applicant claims that his actions were in self-defence. A plea of self-defence holds only if the force used by the person claiming to have defended himself was commensurate with the force applied by, or could reasonably have been anticipated from, the other person, and was necessary to fend off the assault or the anticipated assault. The onus of proving a plea of self-defence rest on the employee who seeks to rely on it (Teeny v Hullett Aluminium (Pty) Ltd (1995) 4 LCD 121 (IC) ; Dismissal, Discrimination and Unfair Labour Practices, Gorgan, 2005). In my view the attack by Mr. Sha came to an end when learners pulled them apart. The fight was over. The applicant claimed that Mr. Sha came again towards him. The applicant did not call any of the leaners to corroborate his version in this score. His version is thus uncorroborated. The corroborated version of Mr. Sha and Learners A and B is that the applicant broke free from the hold of the leaners and punched Mr. Sha in the face. The legal requirements for assault are the intentional and unlawful application of physical force, however slight, to the body of the complainant or the threat that such force will be applied. When the applicant broke free, he intended to go and punched Mr. Sha and he did so with such force that he dislodged some of Mr. Sha’s teeth. The act was disproportionate and went beyond the scope of self-defence. I am persuaded by the evidence that the applicant is guilty of assaulting Mr. Sha and his version that he has acted in self-defence is rejected.
43. The applicant was found guilty of contravening section 17(1)(d) of the EEA in that on or about 6 March 2018 he seriously assaulted, with the intension to cause grievous bodily harm, Cee-Jay Sha, a student enrolled to write a Senior Certificate supplementary examination at Bellville Technical High School, by punching him in the mouth and/or face. The applicant has intended to hurt Mr. Sha when he threw that final punch. The medical report shows that the punch was with such force that he broke Mr. Sha’s front teeth out of their sockets. The applicant intended to cause Mr. Sha grievous bodily harm.
44. Section 17(1)(d) of the EEA provides that an educator must be dismissed if he or she is found guilty of seriously assaulting, with intention to cause grievous bodily harm to, a learner, student or other employee. I am satisfied that Mr. Sha, having been registered to write a supplementary exam, may be regarded for the purposes on the EEA as a leaner or student and I find that the respondent has proved, on a balance of probability, that the applicant has indeed contravened section 17(1)(d) of the EEA.
45. Turing to the 2nd charge against the applicant, Learner A and Mr. Sha claim that the applicant has pushed her and that she fell. The applicant claims that it was Mr. Sha who has pushed Leaner A. Leaner B, who observed the scuffle taking place on top of the stairs, did not testify that he observed anyone pushing Learner A. In my evaluation of the evidence, Leaner A fell when she attempted to intervene in the scuffle between Mr. Sha and the applicant. It is inclusive if she fell pushed by either the applicant or Mr. Sha or if she merely lost her balance. Either way, I cannot safely conclude that the applicant had the intention to apply physical force to the body of Leaner A. I find that the respondent failed to discharge the onus of proving that the applicant is guilty of misconduct in terms of section 18(1)(r) of the EEA by assaulting Learner A.
46. The applicant has been an educator for 24 years and is by all accounts a good educator. He has also apologised for his conduct to Mr. Sha’s mother and has paid a significant amount to her for Mr. Sha’s medical expenses. As I have mentioned earlier violence against educators cannot be condoned. Educators have the right to protect themselves against assault or intended assault. But educators cannot go beyond self-defence. In casu, the applicant overstepped this line when he landed that final punch after they were pulled apart by the learners.
47. The applicant has a history of assault. In 2013 he admitted to assaulting / smacking a leaner. He received a final written warning and a fine for his misconduct. He also received the cautionary letter from the WCED in February 2018 in which he was informed that allegations of assault / corporal punishment were received and that he must be cautious. Yet, irrespective of these warnings, the applicant made himself guilty of serious assault on 6 March 2018. The assault took place in front of leaners. It is not the example to teach leaners of how to resolve conflict.
48. The conduct perpetrated by the applicant falls within the ambit of section 17 and in terms of this section an educator must be dismissed. Section 17 of the EEA is preemptory. I find the dismissal of the applicant substantively fair. The procedural fairness of the dismissal is not in dispute.
I find that the dismissal of the applicant was fair. The application is dismissed.
ELRC Panellist: Jacques Buitendag