PSES 967-18/19WC
PSES 967-18/19WC
Award Date:
12 December 2019
Case Number: PSES 967-18/19WC
Province: Western Cape
Applicant: SAOU obo M Gertenbach
Respondent: Department of Education Western Cape
Issue: Unfair Dismissal - Misconduct
Venue: Department of Education – Western Cape in George and Knysna High School in Knysna
Award Date: 12 December 2019
Arbitrator: A C E Reynolds
Panelist: A C E Reynolds
Case Number: PSES 967-18/19WC
Date of Award : 12 December 2019
In the ARBITRATION between:
SAOU obo M Gertenbach
(Union/Applicant)
and
Department of Education – Western Cape
(Respondent)
Union/Applicant’s representative : Mr P Delport (SAOU)
Union/Applicant’s address : P O Box 963
JEFFREYS BAY
6330
Union/Applicant’s Telephone No’s : (021) 4672847 / 0726068055 / 0832747300
Union/Applicant’s Fax No’s : (021) 9142183
Respondent’s representative : Mr R Jansen
Respondent’s address : Private Bag X9114
CAPE TOWN
8000
Respondent’s Telephone No’s : (021) 4679223 / 0780092514
Respondent’s Fax No’s : (021) 4258612 / 0866626022
DETAILS OF HEARING AND REPRESENTATION
1. The matter was referred for arbitration to the Education Labour Relations Council (ELRC) for a dispute relating to an alleged unfair dismissal for misconduct (alleged assault of a learner) referred in terms of section 191(5)(a)(iii) of the Labour Relations Act 66 of 1995 as amended (the LRA) and was completed over three sittings on 12 June 2019, 31 July 2019 and 6 November 2019 at the premises of the Department of Education – Western Cape in George and Knysna High School in Knysna.
2. The applicant, Ms M Gertenbach, was represented by Mr P Delport of SAOU and the respondent, Department of Education – Western Cape (WCED), by Mr R F Jansen, Senior Labour Relations Officer. Mr D Kova was present to assist with interpretation where required into and from Afrikaans and to act as an intermediary for learner witnesses at all three sittings. The date of the final hearing was deferred to 6 November 2019 pending Mr Jansen’s recovery from intervening major surgery. Present at the final sitting on 6 November 2019 as observers were Mr A Allie of the WCED and Ms A Bester of SAOU.
3. The proceedings were conducted in Afrikaans and English with digital and electronic recordings made and the Panelist’s electronic record serving as the full English translation. It was agreed that Mr Jansen could also make a recording of the proceedings, on the understanding that the official digital record will be that of the Panelist.
4. The parties did not require an explanation of the arbitration proceedings.
5. The respondent raised the preliminary issue at the commencement of the first sitting of the arbitration that that they had requested an intermediary to be present to support their three learner witnesses whom they would be calling to testify and were all below 18 years of age. It was also requested that the learner witnesses be heard in camera due to the reluctance of the parents to have them testify in the presence of the applicant in these proceedings. The applicant party informed that they would also have a learner (child) witness to testify. Since there were no in camera facilities at both the venues alternative arrangements were agreed upon by the parties and it was agreed that Mr Kova would consult with the parents and the learner witnesses on the process that would be followed when the learners deliver their testimony.
ISSUE TO BE DECIDED
6. The purpose of this arbitration is to determine whether the applicant, Ms M Gertenbach’s, dismissal by the respondent, the Department of Education – Western Cape, for alleged misconduct was fair on substantive grounds only, as well as the appropriate relief if unfairness is found. The relief sought was retrospective reinstatement.
BACKGROUND TO THE DISPUTE
The following facts were common cause
7. The applicant joined the Department of Education in March 2013 in the Free State. She transferred to the Western Cape in January 2014 to Kranshoek Primary School in Plettenberg Bay. She occupied a Post Level 1 Educator position and taught grade 2 learners at the time of the incident that she was dismissed for. In that position she reported to the Head of Department (HOD) Foundation Phase Ms E Johnson. The School Principal at the time was Mr E Medea. The applicant was charged for alleged assault that occurred on 16 March 2017. She was notified on 20 June 2017 of a disciplinary hearing to be held on 22 and 23 August 2017. The charge brought against her was as follows:
CHARGE 1
It is alleged that you are guilty of misconduct in terms of Section 18(1)(r) of the Act, in that during the first term of 2017, you assaulted learner A, a learner at Kranshoek Primary School in that you hit the learner twice on the shoulder and/or pulled the learner to your classroom.
8. The disciplinary hearing took place on those two dates and was chaired by Mr G Mentor, a retired Judge as external presiding officer. The applicant pleaded not guilty to the charge in the disciplinary hearing. The outcome of dismissal was handed down on 9 November 2017. The applicant appealed against the dismissal on 13 November 2017, with the MEC’s outcome upholding the dismissal received on 3 September 2018, which was also confirmed as the date of dismissal. The applicant was suspended on full pay prior to the disciplinary hearing. She was paid up till 31 August 2018. Her PERSAL number was 83856315. The applicant was previously charged for alleged assault of learners in the fourth quarter of 2015 and 8 February 2017 with suspension without pay for 6 weeks and a final written warning valid for 6 months, including attending anger management counselling. The applicant visited the parents of learner A on 22 March 2017 at their residence accompanied by the SAPS after the incident of 16 March 2017 and prior to being charged.
9. From the case documents the following background to and history of the dispute was also noted: The dispute was referred by attorneys Law for All on behalf of the applicant to the ELRC on 26 September 2018. The ELRC pointed out to the applicant that the E1 referral form was defective and that she must select the nature of the dispute. The ELRC subsequently received another referral on 6 November 2018 which indicated that the dispute related to an unfair labour practice whereas the relief sought related to an unfair dismissal and compensation for defamation and suffering. The ELRC scheduled an limine hearing on 25 January 2019 under case reference PSES508-19WC for that Panelist to determine the true nature of the dispute. The Panelist, Mr J Buitendag, ruled on 28 January 2019 that the true nature of the dispute related to an alleged unfair dismissal and that the ELRC lacked jurisdiction to conciliate and/or arbitrate this dispute since the applicant had failed to prove that the referral for an alleged unfair dismissal was properly served on the respondent. SAOU on behalf of the applicant submitted a new referral for an alleged unfair dismissal dispute accompanied by a condonation application for a late referral to the ELRC on 5 March 2019, which was decided on papers. That Panelist, Mr H Saayman, issued a ruling on 10 April 2019 granting condonation, whereafter a certificate of non-resolution was issued on 7 May 2019. It is unclear whether the matter was set down for conciliation and a pre-arbitration meeting prior to the certificate being issued. The request for arbitration was subsequently received by the ELRC on 14 May 2019, whereafter the arbitration proceedings were set into motion.
The following facts were in dispute:
10. Whether the alleged assault(s) on learner A occurred on 16 March 2017.
11. Whether the dismissal of the applicant was substantively fair.
SURVEY OF EVIDENCE AND ARGUMENT
12. Learners A, B and C testified in absentia for the respondent. The father of Learner A referred to as Mr X and Ms G Claassens, Educator and former colleague of the applicant at Kranshoek Primary School, also testified under oath for the respondent.
13. Learner D testified in person for the applicant party as well as Ms M Gertenbach, the applicant, who testified under oath.
14. In camera facilities were not available at the two venues where the arbitration took place for the learner witnesses to present their evidence. After deliberation the parties agreed that Mr Kova as the intermediary would deal with their evidence in absentia in the following manner, which was also explained to the child witnesses in person by the Panelist: That Mr Kova would write down a representative’s questions for the child witness, will take each witness to a separate room and record their responses and then report these responses back to the representatives and the Panelist, on record. Any questions in cross-examination of the witness would then similarly be recorded in writing by Mr Kova and put to the absent witness, who would convey the responses on record. Only Learner A would have her father present to give her support but had been cautioned by the Panelist to not assist her and that the words must come out of her own mouth. Further, that the only child witnesses who would testify in person would be with their and their parents’ consent. Mr Kova was placed under oath as the intermediary in this matter.
15. Documents were presented and exchanged by both parties and admitted as evidence, except where indicated otherwise.
16. The possibility of an in loco inspection of the school premises and the classroom where the incident took place to establish whether a learner could see what took place inside the classroom, was discussed. The parties instead accepted a sketch of the floor plan of the classroom occupied by the applicant at the time as well as a Google map printout of the Kranshoek Primary School premises aerial layout to assist with identifying the location of the incidents involved, which were admitted as evidence.
17. Only the evidence relevant to the facts in dispute are summarised below and that which was established as common cause is not repeated, unless relevant. Detail is provided, were relevant. Witnesses’ evidence in chief, under cross-examination and re-examination are summarised separately to assist with the evaluation of their evidence.
THE RESPONDENT’S EVIDENCE
18. The respondent’s case was that they would prove that it was substantively fair to dismiss the applicant after the respondent received a complaint of assault against a learner at Kranshoek Primary School in Plettenberg Bay. A thorough investigation was done and the respondent was happy that they had a case, which is why the charge sheet and notice were drafted and served on the applicant. The chairperson of the disciplinary hearing was also presented with previous cases of assault where the applicant had assaulted learners and a plea bargain agreement had been entered into. This assault took place before the applicant was suspended for a second case, hence the reason why the respondent requested the sanction of dismissal, as the applicant had become a danger to learners and the respondent since parents had indicated that they wanted to sue the respondent. The nature of the assault was that the applicant had hit and pulled a learner, who was traumatised by the incident. The respondent would lead evidence by virtue of witnesses and documents to prove that the applicant’s dismissal was substantively fair and that any other chairperson would have come to the same conclusion based on the evidence which was led.
19. Mr X, Learner A’s father, testified as follows under oath in his evidence in chief: His current occupation was that of an entrepreneur doing angling charters. The incident between his daughter and the applicant came to his attention while he was busy working at sea when his wife phoned him and told him that his daughter was lying crying in her room and had covered her head with a pillow, complaining about a bad headache and not feeling well. He asked his wife if the child was sick and his wife said no that something happened at school. His wife told him to come home self and talk to his daughter as she would not tell his wife what was going on. He went home and found his daughter in her room as his wife described on the bed with her head underneath the pillow. At this point Mr X became emotional and he was given the opportunity to collect himself. When he arrived and sat with his daughter she removed the pillow, held him and cried. When he asked her what was wrong she said that she did not want to be at Kranshoek Primary School any more and that they must take her away and put her in another school. When he told her that they could not just do that and needed to know first what was wrong, she told him that the applicant hurt her, and while crying told him that her neck was sore, showing that it was the back of her neck when he asked where it was sore. She would not tell him what happened and asked him to leave her alone. He was not married to his wife yet at that stage and she still used her maiden name. He asked his wife to investigate what the problem was after that but their daughter just continued crying. They wanted to take her to the clinic or a doctor for her to tell them what happened but their daughter did not want to say anything because she was scared. When his wife asked why she was scared, she said that the applicant will hurt her again. He and his wife went to the school the next day to see the Principal who was Mr Medea at the time. They insisted that they wanted to talk to the applicant and informed the Principal what the problem was. Mr Medea told them that they may not speak directly to the applicant and that they could lodge a complaint, which is what they did, and Mr Jansen for the respondent took the case further until where it is now. Prior to the applicant’s disciplinary hearing they had contact with the applicant when she arrived with the SAPS at their family home and threatened them inside their home by asking why they laid a complaint against her and that she was going to lodge a complaint against him if he did not withdraw the complaint against her. When he asked what complaint she was going to lay against him she did not answer him. She had put the police under the wrong impression to accompany her and he asked her nicely to leave their house, which she did not want to do the first time. He did not know what the reason was that she came to their home, apart from threatening him. Two of their daughter’s friends told his wife what happened, which traumatised his wife. Their daughter was currently in grade 4 at Harkerville Primary School. He explained the effect that the incident had on his daughter, such as that she no longer played and sang as she used to do and when she came from school she closed her door and lay on her bed. At this point he became emotional again. She also had nightmares and bad dreams and when they asked her what was wrong she told them that she did not want to go to school at Kranshoek Primary because the applicant looked at her with “big eyes”. After the incident her marks fell dramatically from achieving 6’s and 7’s and she did not want to play and communicate with her friends. They had to be persuaded to bring their daughter to the arbitration as they did not want her to go through the trauma again. His wife was very upset and made him promise that their daughter is protected and threatened to divorce him if their daughter sees the applicant again. Their daughter was now 9 years old and was 8 years old at the time of the incident.
It is noted that the applicant had an emotional breakdown and was supported by her parents outside the venue before cross-examination of this witness proceeded.
20. Mr X testified as follows under cross-examination: He responded to the observation that his evidence in the arbitration differed from that in the disciplinary hearing where he had stated on p 15 of the applicant’s bundle that up till the date of the hearing in August 2017 his daughter had not related to him what happened, whereas now it differed in that he testified that the teacher hurt her, that their daughter had given them the information piece by piece and he had now been told all that he knew. He heard that an incident happened but he could not say precisely what happened that day since his child did not tell him at the time. He heard about the key and that she went to fetch the key. This is the first time that he heard that his daughter urinated in her clothes because of the bathroom key. Even as a baby their daughter never urinated in the bed and he found it strange that she urinated in her clothes. If he was a teacher and a child came to him and that child as alleged had wet herself and asked a key from him he questioned if that would make him a good teacher if he assaulted the child instead of asking to help the child. He responded to the statement that the applicant was hearing challenged and could not hear the child, that the applicant should make a plan if she cannot hear as she should be able to hear as an Educator. He responded to the question on whether the change in his daughter’s demeanour could have been because of the accident in which she wet herself and not because of assault, that it was absolutely not the case for if she had an accident and then something else bad happened in front of another class it would have a greater emotional impact. He did not experience the SAPS as an intimidating factor when they accompanied the applicant, who is a small person, to his home because the SAPS are the law and there to help people and he was not offended by that. He could not understand why the applicant came with the SAPS to their home since he had no verbal or other contact with the applicant. Mr Medea had cautioned him to not have contact with her and Mr Medea must have cautioned the applicant as well not to have any contact with them. The SAPS did not bother them or act unpleasant towards them, and after they asked the applicant to leave in a friendly fashion the SAPS members remained in the house and wanted to know what was going on since they had to give feedback as to why they came to his residence. They told the SAPS members about the complaint against the applicant and they said that the applicant had brought them under a misapprehension to their residence. He did not lay a criminal charge against the applicant for the allegations of assault in the classroom, but was considering doing so.
21. No re-examination of this witness took place.
22. Learner A testified as follows in absentia: She was asked by the respondent’s representative to put in her own words what happened that specific day between her and the applicant. Mr Kova reported that the learner had said on that specific day she wanted to go to the toilet and she asked her class teacher Ms Claassens for the key. Ms Claassens told her that she did not have the key and that she must ask it from the applicant. The applicant said to her she must wait. After she waited the applicant took her by the hand and said to her that they must fetch the key. When they got there she took the key and the applicant pushed her out of the classroom. Learner B had at that moment looked out of their classroom as she had thrown a paper out in the refuse bin which stood next to the door. Learner C also afterwards looked out of the door since Juffrou (Ms Claassens) had asked her to pick up papers in her row and throw them away. She then went to the toilet but the door would not open. She pushed and pushed on the door and when the door opened she fell into the toilet and saw that her pants were wet. She then tried to dry her pants. Learners B and C came to look for her as Ms Claassens sent them to see why she was taking so long. She told them that her pants were wet and then went back to the class. (It was clarified that the pants referred to were the trousers that they wear at school and not her underpants). The respondent’s next question was for her to tell what happened between her and the applicant, with reference to the applicant’s charge sheet, and that the respondent charged the applicant for hitting her twice on the shoulder and whether she knew anything about the teacher hitting and pulling her. Mr Kova reported that the learner had said she could not remember about the pulling, but that the applicant hit her twice on the shoulder and she could not remember anything more.
23. There was no cross-examination nor re-examination of this witness.
24. Learner B testified as follows in absentia: The respondent’s representative asked that she tell what happened between the applicant and Learner A. Mr Kova reported back that he had explained to the learner that she must speak the truth and say what she saw and he asked her what happened between the applicant and Learner A. She said that Learner A asked Ms Claassens to go to the toilet. She had to go with Learner A to the applicant’s classroom. Learner A went inside and she stood at the door. Learner A asked the applicant for the toilet key. The applicant looked around and hit Learner A twice on the shoulder and told her to stand in front at the board. She, Learner B, then called Learner A and they went to the toilet and felt if the door was open or not. They then went back to Ms Claassens’s classroom and told her that the applicant did not want to give the key. Ms Claassens then went to the applicant and asked for the key. Ms Claassens then gave the key to Learner A and she went to the toilet. When she returned from the toilet they went to the hall. The respondent then asked what board it was that she was referring to and Mr Kova conveyed the answer that it was a green board and in front in the class.
25. Learner B testified as follows under cross-examination: The applicant’s representative requested that she ask Mr Kova to draw on the sketch of the classroom where the applicant and Learner A were in the classroom. Mr Kova reported back that she indicated where she stood at the door and where Learner A and the applicant stood. The applicant stood in front of the desk as indicated on the sketch. The applicant’s representative then asked that Mr kova put the following versions to Learner B to respond to: Firstly, that the applicant will testify that if she stood at the door that she would not see where the applicant is standing since the applicant was not visible from the door. Secondly, that from the sketch where the door is indicated there are windows extending along the wall and that they are too high for a child to see through, if she suggested that she looked through the windows and stood at the door. Thirdly, that the applicant’s witness Learner D who was in the applicant’s class would testify that nobody hit anybody. Also, that Learner D would testify that the key was in the front of the class and that Learner A took the key and did not receive it from Ms Claassens. Mr Kova reported back as follows: She could see the applicant where she was, in response to that she could not see the applicant in the class from where she was standing. She responded to the version that Learner D would testify that he was in the class and saw nobody hit anybody when Learner A asked for the key, that she stood at the door and saw the applicant hit Learner A against the shoulder. Her response to Learner D going to testify that Learner A took the key with her out of the class, was that when they stood at the toilet door Learner A did not have the key and they went to Ms Claassens.
26. Learner B testified as follows in re-examination: The respondent’s representative asked that she indicate on the sketch where Learner A stood and where the applicant stood and how it was possible that the applicant could have hit Learner A against the shoulder. Mr Kova reported back that she made an asterisk on the sketch where the incident occurred and that the applicant moved between the tables (desks) and Learner A moved towards the applicant.
27. Learner C testified as follows in absentia: The respondent’s representative asked her to tell what happened between the applicant and Learner A. Mr Kova reported back that she said that Born in Africa’s people came to fetch them and asked why Learner A was crying, but Learner A did not answer and continued crying. Then some children came and the applicant said if Learner A is not coming she will come and fetch her herself. Learner A then cried and did not want to go. The applicant then came herself and pulled Learner A at the arm and she still cried.
28. The applicant’s representative clarified that Learner C’s evidence related to the second incident in the charge of pulling Learner A from the Born in Africa assembly where they were handing out prizes to her class and did not relate to what happened in the applicant’s classroom, therefore decided not to cross-examine the witness.
29. In the circumstances there was no re-examination of this witness.
30. Ms G Claassens testified as follows under oath in her evidence in chief: She had been working as Foundation Phase Educator at Balvenie Primary School in Cape Town since 2018. She previously worked as Foundation Phase Educator at Kranshoek Primary School from January 2017 to December 2017. She knew Learner A who was a learner in her class and also knew the applicant who was her colleague in grade 2. She related what happened the morning when Learner A asked to leave the classroom. The applicant had the bathroom key and Learner A had to get the key from the applicant. Learner A came back into the class crying and she asked her what happened. Learner A told her that the applicant hit her and she did not get the key because she wet herself. She had given Learner A permission to get the key. This was not normally done but it was an emergency and there were two other learners who also wanted to go who went with Learner A to the applicant’s class. The one was Learner C and she could not remember the other girl’s name because it was 2 years ago. Learner A sat and cried at her table (desk) the whole time until the break. She asked what happened and two other learners also said that the applicant hit Learner A. She comforted Learner A and offered to take her home but she could not do that because there was nobody at home so she had to stay at school. After that there was second break. Born in Africa, which Learner A belonged to for learners who excel in their work, asked that all the learners who belong to them get together in the quad. Learner A was one of their best learners and normally got 7s in all her subjects, which was excellent. She was on yard duty with the HOD Ms Johnson. The next moment she saw the applicant had Learner A at the arm taking her back to her classroom, with Learner A crying terribly. She told the applicant to leave her child alone but the applicant did not answer her and continued walking with Learner A towards her classroom. She asked Ms Johnson what is going to happen but Ms Johnson said nothing, which surprised her for a HOD to do do nothing, but she was still new at the school. Learner A was back in her class after the break and was very upset and basically cried a lot the whole day, as she was ashamed that the children were teasing her because she had wet herself. Learner A got a gift from Born in Africa which her friends brought to the class because she could not receive her gift herself. The applicant came into her class to her desk where all the gifts were placed to show the others. She could not recall if the applicant knocked or walked in, but when Learner A saw the applicant she jumped behind her, Ms Claassens’s, chair. She thought Learner A did that because she was traumatised, especially since what happened during the second break in front of all the children in the quad. She believed what Learner A had said that the applicant hit her, for a child would not cry if nothing happened, especially Learner A who was not the type of learner who would not tell lies and was a very exemplary child. After these incidents Learner A’s work went backwards and she did not want to work at all. She saw the applicant pulling Learner A to the classroom with her own eyes. She had no reason to make false allegations against the applicant. She and the applicant got along reasonably well before this incident and they never differed about anything.
31. Ms Claassens testified as follows under cross-examination: Classes began at 08h00 and the incident when Learner A wanted to go to the bathroom happened before the first break of about 10h00. She had 35 children in her class and she would not normally let them go to the bathroom for they as a rule took the whole class with the Educator present but sometimes she had to use her discretion, which happened then. They had to get a key as the rule was that bathrooms are locked. You could not leave the whole class alone unsupervised if only one child wanted to go to the bathroom, which was situated close to the classroom. Two others went with Learner A. They moved out of her sight when they went out of the door. She could not see what happened in the applicant’s classroom. Learner A did not come to her directly when she returned to the classroom and she went to ask her what was the matter, when Learner A then told her through her tears that the applicant hit her, which her two friends also confirmed when she asked them what happened. She was aware that the applicant was hearing impaired and wore a hearing aid. The children did not say anything about the applicant not hearing Learner A come into her class and that the applicant saw her standing there, but only that the applicant hit Learner A. One of the girls said that the applicant hit Learner A with the hand. As to whether they could not get to the bathroom fast enough on that day, when Learner A returned to the classroom she had already urinated in her clothes. It was strange to her that they were out of the classroom for so long and she assumed that Learner A had a big need. It shocked her that the key was not given to Learner A. They were away for so long and it was logical that if they got the key they would have gone to the bathroom. The other child said they never got the key from the applicant. There were only 3 of the learners of her class at Born in Africa in the quad before the second break to get the gifts and there were also learners there from other classes. She did not go with them because the break was 5 minutes later and she had to stay with the rest of her class. She was on yard duty during the break when she saw the applicant take Learner A by her arm towards her classroom. When the applicant came into her classroom and Learner A jumped behind the chair, the applicant commented on the gifts and spoke directly to Learner A, who would not answer the applicant because she was in tears and did not want to come out from behind her chair. The applicant did not come across as threatening but Learner A did not talk to the applicant. The two learners who went with Learner A would not be able to look through the windows into the applicant’s classroom. She was positive that two other girls went with Learner A to the applicant’s classroom. She agreed that she did not know what they did after they left her classroom to go to the bathroom.
32. There was no re-examination of this witness.
THE APPLICANT’S EVIDENCE
33. The applicant’s case was that the matter had been referred since the applicant alleged that she was dismissed unfairly. The applicant received a charge sheet which related to section 18 (1)(r) of the Employment of Educators Act for alleged two incidents of assault of a learner. The applicant would testify in her own defence and would deny the alleged misconduct and that both incidents had occurred. One under age witness in her class would be called to testify who was in her classroom at the time to confirm this. Only substantive unfairness was alleged and the relief sought was retrospective reinstatement.
34. Ms M Gertenbach, the applicant, testified as follows under oath in her evidence in chief: She explained the daily routine from when they arrived at school at 07h15. On the day of the incidents she started at 08h00 with her bible and maths and at 10h00 the bell rang for break until 10h30. During the break she unlocked the bathrooms as instructed by her HOD Ms Johnson. The instruction of her HOD was that the Educator must accompany the learner if they want to collect the key outside the break. When Learner A arrived she, the applicant, stood right at the back of her class with her back towards the class while she was busy helping a learner who was battling with her work, with reference to the layout sketch of the classroom. She pointed out that the windows on the side were quite high and one could not look through them. Her blackboard was at the front and the key to the bathroom was on the eraser shelf of the blackboard. She was standing at the table with her back to the door and did not hear anybody coming in. The class was quite noisy and the children were moving around while she was helping the learner. Learner A touched her on her arm to get her attention. She was used to children touching her on the arm because they knew that she was hearing disabled and she had told them they must come around in front of her. She described her hearing disability, which was an inherited calcification of the bones in her ears. She had several operations which were unsuccessful, with the result that she had to use hearing aids in both ears for the rest of her life. Since she was busy with the other learner she asked Learner A to wait for her in the front of the class. Learner A touched her again a second time on her arm and she gave her the same instruction to please wait for her in the front of the class. She turned around and continued again with the learner she was helping, when Learner A tapped her again a third time and she saw her running out of the classroom. She did not hit Learner A but took her at the shoulder since she wanted to get her attention to say to her to wait in front of the class and then she saw her run out of the classroom. She asked the other children what Learner A wanted there but they could not say. She did not at all see two other learners with Learner A. She did not see if they took the bathroom key. She after that went to make copies in the copy room and went to her HOD’s classroom to give her a paper, who told her that Learner A was very upset because she wet herself and she then realised the reason why Learner A urgently wanted her attention since she did not know that she wanted the bathroom key. She returned to her classroom to put down her things and then went to Ms Claasens’s classroom, which was next to hers, but when she got there Ms Claassens was not there. She asked the learners where Learner A was and they said that Born in Africa took her to the hall. It was before the second break and not during the break. She went to the hall and where the children were standing outside the hall. She saw Learner A crying, she asked her if she was alright and asked her to come with her to her classroom because she wanted to talk to her to hear if she was OK. Learner A said that she would come with her to her classroom. She put her arm around Learner A’s shoulder to comfort her since she was crying and Learner A came voluntarily with her to her classroom. When they came into the Foundation Phase block Ms Claassens and Ms Johnson heard how Learner A was crying and came out of their classrooms and walked with her to her classroom. There was nothing asked of her to “ leave my child”. She spoke to Learner A in front of her class and Ms Johnson and Ms Claassens and said she was very sorry that Learner A wet herself, that she could understand that she was upset and that she was sorry that she did not hear her and did not give her the bathroom key. Learner A told her that it was alright and went back with Ms Claassens and Ms Johnson to their classrooms. About 12h30 the afternoon she for the third time went to Ms Claassens’s classroom. She knocked on the door and Ms Claassens said she could come in. Ms Claassens was sitting at her desk and she asked Ms Claassens if she could speak to Learner A. Learner A came towards Ms Claassens’s desk and stood between her and Ms Claassens. Some of the learners made a noise and Ms Claassens took the cane from her desk and hit one of the learners making a noise. Learner A told her about the gift that she won and she told her she was proud of her and pleased that she won the prize. After that she returned to her classroom. That was Thursday 16 March 2017 when the incident happened. She reiterated that she did not hit Learner A. She accepted the pulling side which was taking her away from Born in Africa but she put her arm around Learner A’s shoulder and she came with her voluntarily.
35. Ms Gertenbach testified as follows under cross-examination: She had never hit learners before as an Educator. She was not prepared to answer the question about the charges that alleged she assaulted three learners in 2015 and 2016, because it had absolutely nothing to do with this case. She saw the charge sheet but had never assaulted a learner. As to whether she concluded a plea bargain then, she was only here to testify to what stood on the charge sheet for this case, because that was not part of a disciplinary hearing. If the respondent wanted her to answer to any other charges they should have been raised in another disciplinary hearing. She maintained that she would not answer questions relating to a previous charge sheet. After she was asked whether she would agree that after the first charges were concluded she was again charged and again signed a plea bargain on 8 February 2017, the applicant had an emotional breakdown and the hearing stood down for about one hour for the applicant to compose herself and to be comforted by her parents. Her cross-examination continued when she indicated that she was ready to do so. Although Learner A had tapped her three times she could as a reasonable person have thought that it was urgent, but at that stage her first priority was with the learner in her classroom and not that she was not prepared to help other learners. She had a class of 35 learners and did not know that Learner A was in the class and apologised if she did not immediately assist her. She and Ms Claassens had a good relationship and worked together as a team with no problems. As to why Ms Claassens, who in her testimony had agreed that they had a good relationship, would tell lies, to her knowledge Ms Claassens only occupied a temporary post at that stage whilst she had a permanent post. She regarded this as the reason why she told lies since Ms Claassens was after her post. She came to this conclusion because Ms Claassens was supposed to accompany the learner to her class, which she did not do, and because the learner wet herself she wanted to place the blame on her. How that fitted in with wanting her position was that an instruction was given by the HOD that she must lock the toilets and unlock them during the first and second breaks and that the Educator must accompany the learner when they come to ask for the key. Because Ms Claassens did not accompany the learner it resulted in the child wetting herself and the parents wanted to charge the school and blame it on her. She had never told lies and had never assaulted a learner and signed the plea bargain as advised by SAOU, who said it was better to plead guilty than to be dismissed. She realised now that since she was innocent it was the biggest mistake to plead guilty and not let it go through to a disciplinary hearing. She was forced to plead guilty by the respondent. She agreed that her version of what happened when she took Learner A from the Born in Africa assembly and that she went voluntarily with her was not put to Ms Claassens when she testified. She had testified to what happened in the classroom and had a witness to support her version and had told the truth. She never taught Learner A and never saw her marks, but agreed that she was an excellent learner if she was with Born in Africa. She did understand from Ms Claassens’s evidence that Learner A’s marks deteriorated and that she was traumatised. Her own version should be accepted because the learner wet herself and was most probably upset and traumatised because of that. She responded to the statement that the incident happened on a Thursday and she was already on a final written warning with a 6 weeks’ suspension to commence the following Monday, that it was not right. She took Learner A from the assembly because she knew how very traumatic it was to wet yourself and wanted to support her and ensure she was alright. She took her away because it was a private discussion which she did not want to do in front of the other learners at Born in Africa and asked her if she was alright in her classroom in front of Ms Claassens and Ms Johnson. It was not done during the break but before the break, although the witness had said during the break. She was asked why she did not do anything when she in her testimony saw Ms Claassens hitting a learner, that it was not her duty to take on another Educator about that and she did not want to humiliate Ms Claassens in front of her class. She felt it was not fair to Ms Claassens and there were a lot of Educators in the school who hit learners. As to why Learner A and her friends would say that she hit her and make that up, she responded that children could be easily influenced and to her knowledge the learners testified to a different version in the disciplinary hearing to what they had testified now. She referred to her notes to provide examples of how the three learners, who are on the same side and friends, had testified to different versions, pointing out contradictions in the learners’ testimony and that their evidence also contradicted that of Ms Claassens. She had testified that Learner A was traumatised after what happened to her but she could only contribute in part to that for her wetting herself, but that she never assaulted Learner A. She signed the plea bargain because she was forced to do that. It was not true that Learner A hid behind Ms Claassens’s chair when she entered the classroom. She responded to the statement that she was a liar and twisting the truth and had over a period of time humiliated the respondent’s learners and that she was also charged for swearing at a learner and concluded a plea bargain for that, that she was also innocent of that and was forced to sign the plea bargain and that Mr Medea also threatened her and wanted her away from the school because she was a whistle blower and was aware of rumours about malpractices with the school’s finances.
36. There was no re-examination of this witness.
37. Learner D testified as follows in person in his evidence in chief, agreeing to tell the truth: He recognised the applicant as being in her class. He knew who Learner A was and was in the class when the incident happened. He confirmed the sketch of the classroom and how it looked. He sat at the back of the class and indicated where he was on the sketch. He saw Learner A when she came into the classroom and he was inside the classroom when it happened. When Learner A entered the classroom she only walked in and took the bathroom key and the door would not open and she wet her pants. He was dead certain that the applicant did not hit Learner A when she came in. There were no other children who were not in his class who also came in. He knew Learner C but did not know if she was there. He did not know either if Learner B was there. While Learner A was in the classroom the applicant was busy at the table with papers. The tables and chairs were a bit further away from one another than at the venue. Learner A did cry when she got back and the applicant called Ms Johnson and them. The key was on the front table in front of the blackboard in the sketch.
38. Learner D testified as follows under cross-examination: He was certain that Learner A came in and took the key. The applicant was at the back table (desk) when Learner A came in and took the key. Learner A took the key without asking the applicant and the applicant did not see this. He did not know when he was asked to come to this hearing. The applicant asked him to come and testify because he was in the classroom. Nobody said to him what he must say here and the applicant told him he must tell the truth. He told the truth when he said that Learner A came in and took the key without telling the applicant. The applicant was sitting at the table when Learner A came in. He remembered that there was a girl with the applicant at the table but he did not know why she was there. He could not see the toilet from where he was sitting in the back. He knew that the applicant tried to open the door because he stood up and looked out of the classroom door. Somebody called him which is why he stood up and looked out of the door. He agreed that he could not just stand up and go to the door while the teacher was still in the classroom. He could not remember when the applicant asked him to tell the truth here but agreed that it was after what happened. He was now 10 years old and was 8 years old at the time of the incident.
39. There was no re-examination of this witness.
CLOSING ARGUMENT
40. The parties requested at the conclusion of the arbitration that written closing arguments be handed in due to the time constraints and the time that had elapsed since the arbitration commenced. This was agreed to, with the following submission dates agreed upon, which would be sent by e-mail to the ELRC and copied to another, and to be forwarded afterwards to the Panelist by the ELRC, with the ELRC to be requested to have the award due date adjusted accordingly:
The respondent by 19 November 2019
The applicant by 22 November 2019
The respondent’s reply by 25 November 2019
41. The closing arguments were all received on the due dates. They are not repeated here for the sake of brevity, but have been taken into account in arriving at the award.
ANALYSIS OF EVIDENCE AND ARGUMENT
42. I am required to determine, on the balance of probabilities and in the circumstances of this case, whether the dismissal of the applicant, Ms M Gertenbach, by the respondent, the Department of Education - Western Cape, for alleged misconduct was fair on substantive grounds only and to grant the appropriate relief if unfairness is found.
43. From the outset I am aware that this matter poses the particular challenge of the testimony of child witnesses as defined in the Childrens Act 38 of 2005 (the CA) and the application of the principle of the best interests of the child as contained in section 28(2) of the Constitution of the RSA, which even if not raised by the parties I am still bound to consider, as well as the reliability and credibility of the evidence presented by the parties’ witnesses and the probability of the parties’ respective versions.
44. I am also mindful of the charge brought against the applicant to which she had pleaded not guilty in her disciplinary hearing and of which she was found guilty of and led to her dismissal, and is repeated here for ease of reference:
CHARGE 1
It is alleged that you are guilty of misconduct in terms of Section 18(1)(r) of the Act, in that during the first term of 2017, you assaulted learner A, a learner at Kranshoek Primary School in that you hit the learner twice on the shoulder and/or pulled the learner to your classroom.
45. Section 18(1)(r) of the Employment of Educators Act 76 of 1998 as amended (the EEA) under Chapter 5 Incapacity and Misconduct relating to serious misconduct, reads as follows:
18. (1) Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she-
(r) assaults, or attempts to or threatens to assault, another employee or another person;
46. I also refer again to the facts which were established and agreed as being in dispute at the commencement of the arbitration, being as follows:
Whether the alleged assault(s) on learner A occurred on 16 March 2017.
Whether the dismissal of the applicant was substantively fair.
47. This dispute therefore turns around whether the applicant had, on the balance of probabilities, assaulted Learner A on 16 March 2017 by hitting her on the shoulder and/or pulling her to her classroom, which is the evidence which will be focused on in determining this matter.
48. It is unfortunate that this dispute had taken such a long journey over a period in excess of two years to reach its resolution since the incident occurred on 16 March 2017 and the finding of dismissal was confirmed by the MEC on 3 September 2018, with the inevitable challenges to witnesses’ recall of the detail that had transpired at the time of the alleged incident(s). This will be taken into consideration in the evaluation of their evidence.
49. In deciding this matter it is also necessary for me to address the unavoidable issue of credibility, since material factual disputes emerged during the arbitration.
50. In Marapula & Others v Consteen (Pty) Ltd [1999] 8 BLLR 829 (LC) at 837 C – F the Court said the following in relation to the evaluation of evidence and the discharge of the onus by an employer:
“The onus is on the employer to prove that the dismissal was fair (section 192 of the LRA) on a preponderance of probability. In my opinion, the onus is discharged if the employer can show, by credible evidence, that its version is the more probable and acceptable version. The credibility of witnesses and the probability or improbability of what they say should not be regarded as separate enquiries to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the employer’s version, an investigation where questions of demeanour and impression are measured against the content of the witnesses’ evidence, where the importance of any discrepancies or contradictions are assessed and where a particular story is tested against facts which cannot be disputed and against the inherent probabilities, so that at the end of the day one can say with conviction that one version is more probable and should be accepted, and that therefore the other version is false and may be rejected with safety.”
51. Assessing credibility is however not a matter of comparing the number of witnesses on one side with the number presenting an opposing version. I have to weigh up all the evidence in order to decide whether it was reliable or not and whether the truth was told, despite any shortcomings. In order to reach a just verdict based on the truth, I must be able to consider all the relevant admissible evidence. For this reason the basic principle in evaluating evidence is that evidence must be weighed in its totality. In this regard Navsa JA in S v Trainor 2003(1) SACR 35(SCA) at 41b-c said the following:
“A conspectus of all evidence is required. Evidence that is reliable should be weighed alongside such as may be found to be false. Independently verifiable evidence, if any, should be weighed to see if it supports any of the evidence tendered. In considering whether evidence is reliable, the quality of the evidence must of necessity be evaluated, as must corroborative evidence, if any. Evidence, of course; must be evaluated against the onus on any particular issue or in respect of the case in its entirety....”
52. When evaluating or assessing evidence, it is therefore imperative to evaluate all the evidence, and not to be selective in determining what evidence to consider. As Nugent J (as he then was) in S v Van der Meyden 1999 (1) SACR 447 (W) stated at 450:
“What must be borne in mind, however, is that the conclusion which is reached (whether it be to convict or to acquit) must account for all the evidence. Some of the evidence might be found to be false, some of it might be found to be unreliable, and some of it might be found to be only possibly false or unreliable, but none of it may simply be ignored.”
53. From the aforementioned it is therefore clear that the evidence must be assessed in its totality in order to arrive at a meaningful conclusion.
54. Bearing the foregoing principles, opinions and cautions in mind, I will attempt to apply these principles, rules and guidelines to assess the evidence of the parties’ witnesses, as relevant to the main fact in dispute, without going into the detail of all the evidence of the parties’ witnesses.
With respect to the evidence which was presented, the following was noted:
55. The parties’ four learner (child) witnesses with ages of 9 and 10 years old at the time of the arbitration, tended to contradict one another with respect to certain of the details of the events that had transpired. Much of this could be ascribed to the passing of a considerable period of time and their lack of recall of the events, making it difficult to reconcile their individual versions.
56. For example, the applicant’s learner witness, Learner D, who according to the sketch layout of the classroom sat close, almost next to, where the applicant was standing at her desk, contradicted the main evidence of the applicant herself and what Learner A did inside the applicant’s classroom at the time of the alleged hitting incident. The applicant had testified that Learner A tapped her on the arm to attract her attention hence Learner A and the applicant were in close proximity, whereas Learner D had stated that Learner A entered the classroom, took the bathroom key (which was located at the opposite side of the classroom at the blackboard as testified to by the applicant) and left without any interaction with the applicant.
57. As another example, the evidence of Learners B and C did not fully support the evidence of Learner A herself as to who accompanied her, where they were and what exactly happened. It is noted that Learner C did not testify at all as to what happened in the incident surrounding the classroom and bathroom, but only testified to when the applicant took Learner A away from the assembly. Learner B testified that she stood at the door of the applicant’s classroom and saw her hitting the applicant. From the sketch layout of the classroom it is possible that she could have seen that incident. Ms Claassens in her evidence was certain that two other learners accompanied Learner A to the bathroom, of which Learner C was one and the name of the other one could not be recalled, but could not see what happened after they had left her classroom to fetch the bathroom key. The probability was therefore that Learners B and C did accompany Learner A to the applicant’s classroom to fetch the bathroom key. There was also a lack of clarity as to whether Learner A got the bathroom key or not from the applicant, but whatever the circumstance, the evidence supported that she could not access the bathroom in time, or at all, to prevent herself from urinating in her clothes.
58. Because of these contradictions, the commonalities and probabilities in the evidence presented by the four learner witnesses and the three adult witnesses, Mr X and Ms Claassens for the respondent and the applicant herself, were sought, as well as where the evidence of the respective witnesses corroborated one another. These were established to be the following:
• That Learner A had urinated in her clothing as a result of the classroom and bathroom incident.
• That the applicant hit Learner A in her classroom.
• That Learner A was extremely distressed, cried, and continued crying during the course of that day and afterwards as a result of what had happened between her and the applicant.
• That Learner A was severely traumatised by the incident(s) of 16 March 2017, which had a negative impact on her wellbeing and performance at school.
59. As to whether the evidence of the respondent’s witnesses, despite certain discrepancies, was fabricated, no substantive motives were found for these witnesses to fabricate their evidence.
60. The applicant’s own evidence, who had the motive to defend her position, was also significant relating to her version of what had transpired, being the following:
• That she admitted that she kept Learner A waiting when the latter tried to attract her attention on three occasions by tapping or touching her on the arm, due to the priority of attending to the learner in her class who needed assistance.
• That she did hold or take Learner A at the shoulder when she told her to wait (Learner A’s version was that she hit her on the shoulder).
• That she saw Learner A running out of the classroom, which must have indicated to the applicant that there was something wrong, or it could have been because she had hit Learner A as alleged.
• That she became aware that Learner A had urinated in her clothing due to the delay in assisting her.
• That she did go and fetch Learner A away from the Born in Africa assembly to take her to her classroom.
• That she apologised to Learner A for being the cause of her distress which resulted in her urinating in her clothes.
61. It was not disputed that the applicant was hearing impaired, which in her version made her unaware that Learner A was behind her trying to attract her attention to get the key to the bathroom. The rest of her testimony and version of events could have been regarded as reasonable and credible, except that it was refuted by the testimony of the respondent’s witnesses. Her explanation that her priority was to attend to the learner that she was helping, is however not viewed as sufficient justification to ignore another learner who was so persistent in trying to attract her attention. As an Educator she should be aware that she had the responsibility of the wellbeing of all learners entrusted into the care of the school, and not only her own class. The argument that it was illegal for the respondent to keep the toilets locked, that it was the cause of the problem and that it was attempted to shift the blame on her, the applicant, was not supported by the evidence. It may be speculated that the school had a reason for keeping the toilets locked while classes were in progress, especially in the light of the trend in abusive conduct towards minor children. This rule however did not exonerate the applicant from not attending to Learner A.
62. It is possible that the humiliation of urinating in her clothing would have caused such stress and trauma to Learner A, but there must have been an added element which had resulted in her inordinate fear of the applicant, causing her to insist that she be taken out of Kranshoek Primary School. The only probable reason would have been that the applicant had indeed hit her and subsequently forcefully taken her away from the Born in Africa assembly to her classroom.
63. Although Ms Claassens came across as a somewhat nervous witness, she nevertheless stood firm in the testimony that she led and presented the demeanour of somebody who was telling the truth as she understood it. It is also noted that her evidence largely stood unchallenged and that the applicant’s version of certain incidents in which Ms Claassens was present such as that she and Ms Johnson accompanied the applicant and Learner A to the applicant’s classroom when Learner A was taken away from the Born in Africa assembly, as well as the allegation that she hit a learner with a cane in the applicant’s presence, were not put to Ms Claassens to respond to when she testified. It was also curious why the applicant had not reported such a serious infringement as hitting a learner to her seniors, given that she herself had been previously charged for similar transgressions. Ms Claassens did not mention about fetching the bathroom key from the applicant and giving it to Learner A after the urinating incident as testified to by Learner B. This version was also not put to her to respond to by both the representatives. The applicant’s version that Ms Claassens had lied as to what had transpired, presumably at the time of the disciplinary hearing, so that she could occupy the applicant’s post if she was dismissed, is viewed as a disingenuous approach by the applicant to introduce a motive as to why Ms Claassens would incriminate her, and was not supported since Ms Claassens subsequent to the incident obtained a permanent post at another school. It was also not put to Ms Claassens when she testified that she saw the applicant take or pull a crying Learner A at the arm from the Born in Africa assembly and tried to stop the applicant from doing that, that the applicant did not do that but had put her arm around the applicant’s shoulder to comfort her and that Learner A went voluntarily with her. Learner C also testified to this incident in that she saw the applicant pull a crying Learner A away from that assembly, which corroborated Ms Claassens’s evidence.
64. Mr X, Learner A’s father, made a positive impression and presented as a concerned father, who also became emotional during his evidence, with it difficult to fault his evidence regarding the state of his daughter’s mind after the incident and the trauma that was displayed, which resulted in her being taken to another school at his daughter’s insistence. He may not have been aware of the full circumstances of what had transpired at the time of the applicant’s disciplinary hearing and only became aware at the arbitration of Learner A urinating herself, but that did not detract from the main evidence that he presented. The incident that Mr X testified to about when the applicant came to their residence after the incident accompanied by the SAPS was not disputed and accepted as common cause. It can be speculated that the applicant may have done so because she knew that she was in trouble.
65. I also appreciated that the applicant was in a very distressed state of mind during the arbitration, which involved at least two emotional breakdowns during the proceedings and her having to be comforted by her parents who were present to support her, although the parents did not sit in during the arbitration. It was obvious that the arbitration process itself was traumatic for the applicant, who from the admitted documentary evidence had a history of psychological challenges. It must be borne in mind however that this was a course of action that she herself had elected and exposed herself to. It is in particular noted that the applicant had under cross-examination refused to respond to the previous incidents, the plea bargains and other sanctions that had been imposed for similar and other conduct in the past as documented in the admitted documents, contending that it had nothing to do with the present case and that she was forced to sign the plea bargains. These were not unreasonable questions from the other party’s representative since a past history of similar transgressions are normally highlighted in proceedings of this nature for the Panelist to arrive at the appropriate sanction if a finding of guilt is established. This resulted in the applicant’s previous disciplinary record remaining largely unchallenged.
FINDING
66. Findings are based on the balance of probabilities, with only brief reasons supplied as required in section 138(7)(a) of the LRA.
67. I am fully aware that the onus of proof is on the respondent in this matter. However, despite certain instances of apparent inconsistency in the evidence presented by the respondent’s witnesses, especially the child witnesses, I have already expressed my doubt as to the probability of the applicant’s version of what transpired on 16 March 2017. The balance of probabilities therefore support that the applicant was guilty of the charges ascribed to her and that her actions did constitute assault against a learner. The act of ignoring a learner who was in apparent urgent need and caused her to publicly urinate herself, certainly did not uphold the interest of the child and resulted in humiliation and added trauma to a vulnerable child, whose wellbeing was entrusted to her as an Educator.
68. As to what constitutes assault, guidance is sought from The Concise Oxford Dictionary, Eighth Edition which inter alia defines “assault” as follows: a violent physical or verbal attack; in law an act that threatens physical harm to a person (whether or not actual harm is done). This implies that an element of actual or threatened physical harm should be present in the action perpetrated. To this could also be added emotional harm and distress, which it was evident was caused to Learner A as a result of the applicant’s conduct.
69. Due to the nature of this matter, the best interests of the child require to be highlighted again, since the child must be considered before a decision affecting his or her life is made, as provided for in section 28(2) of the Constitution of the RSA and section 8 of the Childrens Act 38 of 2005 (the CA). As mentioned earlier, even if this is not pertinentely raised by the parties in an arbitration I am obliged to consider the best interest of the child in arriving at the appropriate award. Prof Adriaan van der Walt in a paper titled The Principle of the Best Interests of the South African Child delivered on 9 September 2016 states as follows: “Taking into account that section 28(2) constitutes a right, all organs of state must respect, protect, promote and fulfil the best interest of a child or children in general”. Section 8 of the CA also provides as follows: “In all matters concerning the care, protection and well-being of the child the standard of the child’s best interests is of paramount importance and must be applied.” By stating that the child’s best interests are of paramount importance it means that they can trump the rights and interests of persons older than 18 years of age. Van der Walt continues to define the best interests of the child as follows: “Basic interests, for example [in] physical, emotional and intellectual care; developmental interests [in entering] adulthood as far [as] possible without disadvantage; autonomy interests, especially the freedom to choose a lifestyle of their own. “
70. Based on the supporting evidence presented in the arbitration I find it improbable that learner A had fabricated the allegations against the applicant. It is more likely than not that those allegations are true and I therefore find the respondent’s version more probable as to the true state of events and am accordingly satisfied that the respondent has discharged the onus to prove that the applicant was guilty of assaulting in Learner A in the manner described in the charge against her for the two incidents that occurred on 16 March 2017 at Kranshoek Primary School.
71. Section 18(3) of the EEA provides a range of sanctions which can be imposed if an Educator has been found to to have commited misconduct as contemplated in subsection (1). The admitted documentary evidence of the applicant’s past disciplinary record reflected that the applicant had aleady entered into plea bargains for certain transgressions, some of which were of a similar nature, and with other disciplinary measures and sanctions short of dismissal already imposed. In particular there was a plea bargain entered into between the applicant and the respondent on 8 February 2017 prior to a disciplinary hearing being held, in which she had pleaded guilty to the charges of putting learners out of the classroom around 20 July 2016 and swearing to learners around 22 August 2016. In the plea bargain the applicant accepted a final written warning valid for 6 months and 6 weeks suspension without remuneration with effect from 1 April 2017 as well as anger management counselling. These sanctions were still valid at the time of the incidents on 16 March 2017. There was also on record a previous plea bargain entered into between the applicant and the respondent on 5 April 2016, also prior to a disciplinary hearing being held, in which she pleaded gulty to the charges of physically assaulting (punishing) learners during 2015 and 2016, with the sanction imposed of a final written warning and a fine of R5000,00 payable over 6 months. As already pointed out, the applicant refused to respond to this evidence when presented to her, save to contend that she was forced to sign the plea bargains and a denial that she was guilty of those transgressions. Due to the seeming repetitive nature of the applicant’s various transgressions the possibility that such conduct may be repeated in the future can not be ruled out and could be an important risk factor for the respondent.
72. As a result of what had transpired in this incident and being mindful of the interests of the child, and the damage that such conduct can cause for the respondent as a public institution to which the wellbeing of learners are entrusted, I find insufficient justification to set aside the sanction of dismissal. Reference is made again to the principle that the best interests of the child remain paramount, as held by the Constitutional Court in Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BCLR 761 (CC) that Section 28(2) of the Constitution of the Republic of South Africa imposes an obligation on all those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions. This consequently also binds Arbitrators or Panelists in a forum such as this to give consideration to the effect their decisions will have on children’s lives, and learners collectively, when they decide on the fairness or otherwise of the dismissal of an Educator and, even if unfairness is found, that an Educator should not be re-instated or re-employed if this will have a detrimental effect on the well-being and safety of learners.
73. In the circumstances the applicant’s dismissal is found to be fair on substantive grounds.
AWARD
74. The dismissal of the applicant, Ms M Gertenbach, by the respondent, the Department of Education- Western Cape, is found to be fair on substantive grounds and the matter is accordingly dismissed.
75. No order as to costs is made.
A C E REYNOLDS (Ms)
PANELLIST
Province: Western Cape
Applicant: SAOU obo M Gertenbach
Respondent: Department of Education Western Cape
Issue: Unfair Dismissal - Misconduct
Venue: Department of Education – Western Cape in George and Knysna High School in Knysna
Award Date: 12 December 2019
Arbitrator: A C E Reynolds
Panelist: A C E Reynolds
Case Number: PSES 967-18/19WC
Date of Award : 12 December 2019
In the ARBITRATION between:
SAOU obo M Gertenbach
(Union/Applicant)
and
Department of Education – Western Cape
(Respondent)
Union/Applicant’s representative : Mr P Delport (SAOU)
Union/Applicant’s address : P O Box 963
JEFFREYS BAY
6330
Union/Applicant’s Telephone No’s : (021) 4672847 / 0726068055 / 0832747300
Union/Applicant’s Fax No’s : (021) 9142183
Respondent’s representative : Mr R Jansen
Respondent’s address : Private Bag X9114
CAPE TOWN
8000
Respondent’s Telephone No’s : (021) 4679223 / 0780092514
Respondent’s Fax No’s : (021) 4258612 / 0866626022
DETAILS OF HEARING AND REPRESENTATION
1. The matter was referred for arbitration to the Education Labour Relations Council (ELRC) for a dispute relating to an alleged unfair dismissal for misconduct (alleged assault of a learner) referred in terms of section 191(5)(a)(iii) of the Labour Relations Act 66 of 1995 as amended (the LRA) and was completed over three sittings on 12 June 2019, 31 July 2019 and 6 November 2019 at the premises of the Department of Education – Western Cape in George and Knysna High School in Knysna.
2. The applicant, Ms M Gertenbach, was represented by Mr P Delport of SAOU and the respondent, Department of Education – Western Cape (WCED), by Mr R F Jansen, Senior Labour Relations Officer. Mr D Kova was present to assist with interpretation where required into and from Afrikaans and to act as an intermediary for learner witnesses at all three sittings. The date of the final hearing was deferred to 6 November 2019 pending Mr Jansen’s recovery from intervening major surgery. Present at the final sitting on 6 November 2019 as observers were Mr A Allie of the WCED and Ms A Bester of SAOU.
3. The proceedings were conducted in Afrikaans and English with digital and electronic recordings made and the Panelist’s electronic record serving as the full English translation. It was agreed that Mr Jansen could also make a recording of the proceedings, on the understanding that the official digital record will be that of the Panelist.
4. The parties did not require an explanation of the arbitration proceedings.
5. The respondent raised the preliminary issue at the commencement of the first sitting of the arbitration that that they had requested an intermediary to be present to support their three learner witnesses whom they would be calling to testify and were all below 18 years of age. It was also requested that the learner witnesses be heard in camera due to the reluctance of the parents to have them testify in the presence of the applicant in these proceedings. The applicant party informed that they would also have a learner (child) witness to testify. Since there were no in camera facilities at both the venues alternative arrangements were agreed upon by the parties and it was agreed that Mr Kova would consult with the parents and the learner witnesses on the process that would be followed when the learners deliver their testimony.
ISSUE TO BE DECIDED
6. The purpose of this arbitration is to determine whether the applicant, Ms M Gertenbach’s, dismissal by the respondent, the Department of Education – Western Cape, for alleged misconduct was fair on substantive grounds only, as well as the appropriate relief if unfairness is found. The relief sought was retrospective reinstatement.
BACKGROUND TO THE DISPUTE
The following facts were common cause
7. The applicant joined the Department of Education in March 2013 in the Free State. She transferred to the Western Cape in January 2014 to Kranshoek Primary School in Plettenberg Bay. She occupied a Post Level 1 Educator position and taught grade 2 learners at the time of the incident that she was dismissed for. In that position she reported to the Head of Department (HOD) Foundation Phase Ms E Johnson. The School Principal at the time was Mr E Medea. The applicant was charged for alleged assault that occurred on 16 March 2017. She was notified on 20 June 2017 of a disciplinary hearing to be held on 22 and 23 August 2017. The charge brought against her was as follows:
CHARGE 1
It is alleged that you are guilty of misconduct in terms of Section 18(1)(r) of the Act, in that during the first term of 2017, you assaulted learner A, a learner at Kranshoek Primary School in that you hit the learner twice on the shoulder and/or pulled the learner to your classroom.
8. The disciplinary hearing took place on those two dates and was chaired by Mr G Mentor, a retired Judge as external presiding officer. The applicant pleaded not guilty to the charge in the disciplinary hearing. The outcome of dismissal was handed down on 9 November 2017. The applicant appealed against the dismissal on 13 November 2017, with the MEC’s outcome upholding the dismissal received on 3 September 2018, which was also confirmed as the date of dismissal. The applicant was suspended on full pay prior to the disciplinary hearing. She was paid up till 31 August 2018. Her PERSAL number was 83856315. The applicant was previously charged for alleged assault of learners in the fourth quarter of 2015 and 8 February 2017 with suspension without pay for 6 weeks and a final written warning valid for 6 months, including attending anger management counselling. The applicant visited the parents of learner A on 22 March 2017 at their residence accompanied by the SAPS after the incident of 16 March 2017 and prior to being charged.
9. From the case documents the following background to and history of the dispute was also noted: The dispute was referred by attorneys Law for All on behalf of the applicant to the ELRC on 26 September 2018. The ELRC pointed out to the applicant that the E1 referral form was defective and that she must select the nature of the dispute. The ELRC subsequently received another referral on 6 November 2018 which indicated that the dispute related to an unfair labour practice whereas the relief sought related to an unfair dismissal and compensation for defamation and suffering. The ELRC scheduled an limine hearing on 25 January 2019 under case reference PSES508-19WC for that Panelist to determine the true nature of the dispute. The Panelist, Mr J Buitendag, ruled on 28 January 2019 that the true nature of the dispute related to an alleged unfair dismissal and that the ELRC lacked jurisdiction to conciliate and/or arbitrate this dispute since the applicant had failed to prove that the referral for an alleged unfair dismissal was properly served on the respondent. SAOU on behalf of the applicant submitted a new referral for an alleged unfair dismissal dispute accompanied by a condonation application for a late referral to the ELRC on 5 March 2019, which was decided on papers. That Panelist, Mr H Saayman, issued a ruling on 10 April 2019 granting condonation, whereafter a certificate of non-resolution was issued on 7 May 2019. It is unclear whether the matter was set down for conciliation and a pre-arbitration meeting prior to the certificate being issued. The request for arbitration was subsequently received by the ELRC on 14 May 2019, whereafter the arbitration proceedings were set into motion.
The following facts were in dispute:
10. Whether the alleged assault(s) on learner A occurred on 16 March 2017.
11. Whether the dismissal of the applicant was substantively fair.
SURVEY OF EVIDENCE AND ARGUMENT
12. Learners A, B and C testified in absentia for the respondent. The father of Learner A referred to as Mr X and Ms G Claassens, Educator and former colleague of the applicant at Kranshoek Primary School, also testified under oath for the respondent.
13. Learner D testified in person for the applicant party as well as Ms M Gertenbach, the applicant, who testified under oath.
14. In camera facilities were not available at the two venues where the arbitration took place for the learner witnesses to present their evidence. After deliberation the parties agreed that Mr Kova as the intermediary would deal with their evidence in absentia in the following manner, which was also explained to the child witnesses in person by the Panelist: That Mr Kova would write down a representative’s questions for the child witness, will take each witness to a separate room and record their responses and then report these responses back to the representatives and the Panelist, on record. Any questions in cross-examination of the witness would then similarly be recorded in writing by Mr Kova and put to the absent witness, who would convey the responses on record. Only Learner A would have her father present to give her support but had been cautioned by the Panelist to not assist her and that the words must come out of her own mouth. Further, that the only child witnesses who would testify in person would be with their and their parents’ consent. Mr Kova was placed under oath as the intermediary in this matter.
15. Documents were presented and exchanged by both parties and admitted as evidence, except where indicated otherwise.
16. The possibility of an in loco inspection of the school premises and the classroom where the incident took place to establish whether a learner could see what took place inside the classroom, was discussed. The parties instead accepted a sketch of the floor plan of the classroom occupied by the applicant at the time as well as a Google map printout of the Kranshoek Primary School premises aerial layout to assist with identifying the location of the incidents involved, which were admitted as evidence.
17. Only the evidence relevant to the facts in dispute are summarised below and that which was established as common cause is not repeated, unless relevant. Detail is provided, were relevant. Witnesses’ evidence in chief, under cross-examination and re-examination are summarised separately to assist with the evaluation of their evidence.
THE RESPONDENT’S EVIDENCE
18. The respondent’s case was that they would prove that it was substantively fair to dismiss the applicant after the respondent received a complaint of assault against a learner at Kranshoek Primary School in Plettenberg Bay. A thorough investigation was done and the respondent was happy that they had a case, which is why the charge sheet and notice were drafted and served on the applicant. The chairperson of the disciplinary hearing was also presented with previous cases of assault where the applicant had assaulted learners and a plea bargain agreement had been entered into. This assault took place before the applicant was suspended for a second case, hence the reason why the respondent requested the sanction of dismissal, as the applicant had become a danger to learners and the respondent since parents had indicated that they wanted to sue the respondent. The nature of the assault was that the applicant had hit and pulled a learner, who was traumatised by the incident. The respondent would lead evidence by virtue of witnesses and documents to prove that the applicant’s dismissal was substantively fair and that any other chairperson would have come to the same conclusion based on the evidence which was led.
19. Mr X, Learner A’s father, testified as follows under oath in his evidence in chief: His current occupation was that of an entrepreneur doing angling charters. The incident between his daughter and the applicant came to his attention while he was busy working at sea when his wife phoned him and told him that his daughter was lying crying in her room and had covered her head with a pillow, complaining about a bad headache and not feeling well. He asked his wife if the child was sick and his wife said no that something happened at school. His wife told him to come home self and talk to his daughter as she would not tell his wife what was going on. He went home and found his daughter in her room as his wife described on the bed with her head underneath the pillow. At this point Mr X became emotional and he was given the opportunity to collect himself. When he arrived and sat with his daughter she removed the pillow, held him and cried. When he asked her what was wrong she said that she did not want to be at Kranshoek Primary School any more and that they must take her away and put her in another school. When he told her that they could not just do that and needed to know first what was wrong, she told him that the applicant hurt her, and while crying told him that her neck was sore, showing that it was the back of her neck when he asked where it was sore. She would not tell him what happened and asked him to leave her alone. He was not married to his wife yet at that stage and she still used her maiden name. He asked his wife to investigate what the problem was after that but their daughter just continued crying. They wanted to take her to the clinic or a doctor for her to tell them what happened but their daughter did not want to say anything because she was scared. When his wife asked why she was scared, she said that the applicant will hurt her again. He and his wife went to the school the next day to see the Principal who was Mr Medea at the time. They insisted that they wanted to talk to the applicant and informed the Principal what the problem was. Mr Medea told them that they may not speak directly to the applicant and that they could lodge a complaint, which is what they did, and Mr Jansen for the respondent took the case further until where it is now. Prior to the applicant’s disciplinary hearing they had contact with the applicant when she arrived with the SAPS at their family home and threatened them inside their home by asking why they laid a complaint against her and that she was going to lodge a complaint against him if he did not withdraw the complaint against her. When he asked what complaint she was going to lay against him she did not answer him. She had put the police under the wrong impression to accompany her and he asked her nicely to leave their house, which she did not want to do the first time. He did not know what the reason was that she came to their home, apart from threatening him. Two of their daughter’s friends told his wife what happened, which traumatised his wife. Their daughter was currently in grade 4 at Harkerville Primary School. He explained the effect that the incident had on his daughter, such as that she no longer played and sang as she used to do and when she came from school she closed her door and lay on her bed. At this point he became emotional again. She also had nightmares and bad dreams and when they asked her what was wrong she told them that she did not want to go to school at Kranshoek Primary because the applicant looked at her with “big eyes”. After the incident her marks fell dramatically from achieving 6’s and 7’s and she did not want to play and communicate with her friends. They had to be persuaded to bring their daughter to the arbitration as they did not want her to go through the trauma again. His wife was very upset and made him promise that their daughter is protected and threatened to divorce him if their daughter sees the applicant again. Their daughter was now 9 years old and was 8 years old at the time of the incident.
It is noted that the applicant had an emotional breakdown and was supported by her parents outside the venue before cross-examination of this witness proceeded.
20. Mr X testified as follows under cross-examination: He responded to the observation that his evidence in the arbitration differed from that in the disciplinary hearing where he had stated on p 15 of the applicant’s bundle that up till the date of the hearing in August 2017 his daughter had not related to him what happened, whereas now it differed in that he testified that the teacher hurt her, that their daughter had given them the information piece by piece and he had now been told all that he knew. He heard that an incident happened but he could not say precisely what happened that day since his child did not tell him at the time. He heard about the key and that she went to fetch the key. This is the first time that he heard that his daughter urinated in her clothes because of the bathroom key. Even as a baby their daughter never urinated in the bed and he found it strange that she urinated in her clothes. If he was a teacher and a child came to him and that child as alleged had wet herself and asked a key from him he questioned if that would make him a good teacher if he assaulted the child instead of asking to help the child. He responded to the statement that the applicant was hearing challenged and could not hear the child, that the applicant should make a plan if she cannot hear as she should be able to hear as an Educator. He responded to the question on whether the change in his daughter’s demeanour could have been because of the accident in which she wet herself and not because of assault, that it was absolutely not the case for if she had an accident and then something else bad happened in front of another class it would have a greater emotional impact. He did not experience the SAPS as an intimidating factor when they accompanied the applicant, who is a small person, to his home because the SAPS are the law and there to help people and he was not offended by that. He could not understand why the applicant came with the SAPS to their home since he had no verbal or other contact with the applicant. Mr Medea had cautioned him to not have contact with her and Mr Medea must have cautioned the applicant as well not to have any contact with them. The SAPS did not bother them or act unpleasant towards them, and after they asked the applicant to leave in a friendly fashion the SAPS members remained in the house and wanted to know what was going on since they had to give feedback as to why they came to his residence. They told the SAPS members about the complaint against the applicant and they said that the applicant had brought them under a misapprehension to their residence. He did not lay a criminal charge against the applicant for the allegations of assault in the classroom, but was considering doing so.
21. No re-examination of this witness took place.
22. Learner A testified as follows in absentia: She was asked by the respondent’s representative to put in her own words what happened that specific day between her and the applicant. Mr Kova reported that the learner had said on that specific day she wanted to go to the toilet and she asked her class teacher Ms Claassens for the key. Ms Claassens told her that she did not have the key and that she must ask it from the applicant. The applicant said to her she must wait. After she waited the applicant took her by the hand and said to her that they must fetch the key. When they got there she took the key and the applicant pushed her out of the classroom. Learner B had at that moment looked out of their classroom as she had thrown a paper out in the refuse bin which stood next to the door. Learner C also afterwards looked out of the door since Juffrou (Ms Claassens) had asked her to pick up papers in her row and throw them away. She then went to the toilet but the door would not open. She pushed and pushed on the door and when the door opened she fell into the toilet and saw that her pants were wet. She then tried to dry her pants. Learners B and C came to look for her as Ms Claassens sent them to see why she was taking so long. She told them that her pants were wet and then went back to the class. (It was clarified that the pants referred to were the trousers that they wear at school and not her underpants). The respondent’s next question was for her to tell what happened between her and the applicant, with reference to the applicant’s charge sheet, and that the respondent charged the applicant for hitting her twice on the shoulder and whether she knew anything about the teacher hitting and pulling her. Mr Kova reported that the learner had said she could not remember about the pulling, but that the applicant hit her twice on the shoulder and she could not remember anything more.
23. There was no cross-examination nor re-examination of this witness.
24. Learner B testified as follows in absentia: The respondent’s representative asked that she tell what happened between the applicant and Learner A. Mr Kova reported back that he had explained to the learner that she must speak the truth and say what she saw and he asked her what happened between the applicant and Learner A. She said that Learner A asked Ms Claassens to go to the toilet. She had to go with Learner A to the applicant’s classroom. Learner A went inside and she stood at the door. Learner A asked the applicant for the toilet key. The applicant looked around and hit Learner A twice on the shoulder and told her to stand in front at the board. She, Learner B, then called Learner A and they went to the toilet and felt if the door was open or not. They then went back to Ms Claassens’s classroom and told her that the applicant did not want to give the key. Ms Claassens then went to the applicant and asked for the key. Ms Claassens then gave the key to Learner A and she went to the toilet. When she returned from the toilet they went to the hall. The respondent then asked what board it was that she was referring to and Mr Kova conveyed the answer that it was a green board and in front in the class.
25. Learner B testified as follows under cross-examination: The applicant’s representative requested that she ask Mr Kova to draw on the sketch of the classroom where the applicant and Learner A were in the classroom. Mr Kova reported back that she indicated where she stood at the door and where Learner A and the applicant stood. The applicant stood in front of the desk as indicated on the sketch. The applicant’s representative then asked that Mr kova put the following versions to Learner B to respond to: Firstly, that the applicant will testify that if she stood at the door that she would not see where the applicant is standing since the applicant was not visible from the door. Secondly, that from the sketch where the door is indicated there are windows extending along the wall and that they are too high for a child to see through, if she suggested that she looked through the windows and stood at the door. Thirdly, that the applicant’s witness Learner D who was in the applicant’s class would testify that nobody hit anybody. Also, that Learner D would testify that the key was in the front of the class and that Learner A took the key and did not receive it from Ms Claassens. Mr Kova reported back as follows: She could see the applicant where she was, in response to that she could not see the applicant in the class from where she was standing. She responded to the version that Learner D would testify that he was in the class and saw nobody hit anybody when Learner A asked for the key, that she stood at the door and saw the applicant hit Learner A against the shoulder. Her response to Learner D going to testify that Learner A took the key with her out of the class, was that when they stood at the toilet door Learner A did not have the key and they went to Ms Claassens.
26. Learner B testified as follows in re-examination: The respondent’s representative asked that she indicate on the sketch where Learner A stood and where the applicant stood and how it was possible that the applicant could have hit Learner A against the shoulder. Mr Kova reported back that she made an asterisk on the sketch where the incident occurred and that the applicant moved between the tables (desks) and Learner A moved towards the applicant.
27. Learner C testified as follows in absentia: The respondent’s representative asked her to tell what happened between the applicant and Learner A. Mr Kova reported back that she said that Born in Africa’s people came to fetch them and asked why Learner A was crying, but Learner A did not answer and continued crying. Then some children came and the applicant said if Learner A is not coming she will come and fetch her herself. Learner A then cried and did not want to go. The applicant then came herself and pulled Learner A at the arm and she still cried.
28. The applicant’s representative clarified that Learner C’s evidence related to the second incident in the charge of pulling Learner A from the Born in Africa assembly where they were handing out prizes to her class and did not relate to what happened in the applicant’s classroom, therefore decided not to cross-examine the witness.
29. In the circumstances there was no re-examination of this witness.
30. Ms G Claassens testified as follows under oath in her evidence in chief: She had been working as Foundation Phase Educator at Balvenie Primary School in Cape Town since 2018. She previously worked as Foundation Phase Educator at Kranshoek Primary School from January 2017 to December 2017. She knew Learner A who was a learner in her class and also knew the applicant who was her colleague in grade 2. She related what happened the morning when Learner A asked to leave the classroom. The applicant had the bathroom key and Learner A had to get the key from the applicant. Learner A came back into the class crying and she asked her what happened. Learner A told her that the applicant hit her and she did not get the key because she wet herself. She had given Learner A permission to get the key. This was not normally done but it was an emergency and there were two other learners who also wanted to go who went with Learner A to the applicant’s class. The one was Learner C and she could not remember the other girl’s name because it was 2 years ago. Learner A sat and cried at her table (desk) the whole time until the break. She asked what happened and two other learners also said that the applicant hit Learner A. She comforted Learner A and offered to take her home but she could not do that because there was nobody at home so she had to stay at school. After that there was second break. Born in Africa, which Learner A belonged to for learners who excel in their work, asked that all the learners who belong to them get together in the quad. Learner A was one of their best learners and normally got 7s in all her subjects, which was excellent. She was on yard duty with the HOD Ms Johnson. The next moment she saw the applicant had Learner A at the arm taking her back to her classroom, with Learner A crying terribly. She told the applicant to leave her child alone but the applicant did not answer her and continued walking with Learner A towards her classroom. She asked Ms Johnson what is going to happen but Ms Johnson said nothing, which surprised her for a HOD to do do nothing, but she was still new at the school. Learner A was back in her class after the break and was very upset and basically cried a lot the whole day, as she was ashamed that the children were teasing her because she had wet herself. Learner A got a gift from Born in Africa which her friends brought to the class because she could not receive her gift herself. The applicant came into her class to her desk where all the gifts were placed to show the others. She could not recall if the applicant knocked or walked in, but when Learner A saw the applicant she jumped behind her, Ms Claassens’s, chair. She thought Learner A did that because she was traumatised, especially since what happened during the second break in front of all the children in the quad. She believed what Learner A had said that the applicant hit her, for a child would not cry if nothing happened, especially Learner A who was not the type of learner who would not tell lies and was a very exemplary child. After these incidents Learner A’s work went backwards and she did not want to work at all. She saw the applicant pulling Learner A to the classroom with her own eyes. She had no reason to make false allegations against the applicant. She and the applicant got along reasonably well before this incident and they never differed about anything.
31. Ms Claassens testified as follows under cross-examination: Classes began at 08h00 and the incident when Learner A wanted to go to the bathroom happened before the first break of about 10h00. She had 35 children in her class and she would not normally let them go to the bathroom for they as a rule took the whole class with the Educator present but sometimes she had to use her discretion, which happened then. They had to get a key as the rule was that bathrooms are locked. You could not leave the whole class alone unsupervised if only one child wanted to go to the bathroom, which was situated close to the classroom. Two others went with Learner A. They moved out of her sight when they went out of the door. She could not see what happened in the applicant’s classroom. Learner A did not come to her directly when she returned to the classroom and she went to ask her what was the matter, when Learner A then told her through her tears that the applicant hit her, which her two friends also confirmed when she asked them what happened. She was aware that the applicant was hearing impaired and wore a hearing aid. The children did not say anything about the applicant not hearing Learner A come into her class and that the applicant saw her standing there, but only that the applicant hit Learner A. One of the girls said that the applicant hit Learner A with the hand. As to whether they could not get to the bathroom fast enough on that day, when Learner A returned to the classroom she had already urinated in her clothes. It was strange to her that they were out of the classroom for so long and she assumed that Learner A had a big need. It shocked her that the key was not given to Learner A. They were away for so long and it was logical that if they got the key they would have gone to the bathroom. The other child said they never got the key from the applicant. There were only 3 of the learners of her class at Born in Africa in the quad before the second break to get the gifts and there were also learners there from other classes. She did not go with them because the break was 5 minutes later and she had to stay with the rest of her class. She was on yard duty during the break when she saw the applicant take Learner A by her arm towards her classroom. When the applicant came into her classroom and Learner A jumped behind the chair, the applicant commented on the gifts and spoke directly to Learner A, who would not answer the applicant because she was in tears and did not want to come out from behind her chair. The applicant did not come across as threatening but Learner A did not talk to the applicant. The two learners who went with Learner A would not be able to look through the windows into the applicant’s classroom. She was positive that two other girls went with Learner A to the applicant’s classroom. She agreed that she did not know what they did after they left her classroom to go to the bathroom.
32. There was no re-examination of this witness.
THE APPLICANT’S EVIDENCE
33. The applicant’s case was that the matter had been referred since the applicant alleged that she was dismissed unfairly. The applicant received a charge sheet which related to section 18 (1)(r) of the Employment of Educators Act for alleged two incidents of assault of a learner. The applicant would testify in her own defence and would deny the alleged misconduct and that both incidents had occurred. One under age witness in her class would be called to testify who was in her classroom at the time to confirm this. Only substantive unfairness was alleged and the relief sought was retrospective reinstatement.
34. Ms M Gertenbach, the applicant, testified as follows under oath in her evidence in chief: She explained the daily routine from when they arrived at school at 07h15. On the day of the incidents she started at 08h00 with her bible and maths and at 10h00 the bell rang for break until 10h30. During the break she unlocked the bathrooms as instructed by her HOD Ms Johnson. The instruction of her HOD was that the Educator must accompany the learner if they want to collect the key outside the break. When Learner A arrived she, the applicant, stood right at the back of her class with her back towards the class while she was busy helping a learner who was battling with her work, with reference to the layout sketch of the classroom. She pointed out that the windows on the side were quite high and one could not look through them. Her blackboard was at the front and the key to the bathroom was on the eraser shelf of the blackboard. She was standing at the table with her back to the door and did not hear anybody coming in. The class was quite noisy and the children were moving around while she was helping the learner. Learner A touched her on her arm to get her attention. She was used to children touching her on the arm because they knew that she was hearing disabled and she had told them they must come around in front of her. She described her hearing disability, which was an inherited calcification of the bones in her ears. She had several operations which were unsuccessful, with the result that she had to use hearing aids in both ears for the rest of her life. Since she was busy with the other learner she asked Learner A to wait for her in the front of the class. Learner A touched her again a second time on her arm and she gave her the same instruction to please wait for her in the front of the class. She turned around and continued again with the learner she was helping, when Learner A tapped her again a third time and she saw her running out of the classroom. She did not hit Learner A but took her at the shoulder since she wanted to get her attention to say to her to wait in front of the class and then she saw her run out of the classroom. She asked the other children what Learner A wanted there but they could not say. She did not at all see two other learners with Learner A. She did not see if they took the bathroom key. She after that went to make copies in the copy room and went to her HOD’s classroom to give her a paper, who told her that Learner A was very upset because she wet herself and she then realised the reason why Learner A urgently wanted her attention since she did not know that she wanted the bathroom key. She returned to her classroom to put down her things and then went to Ms Claasens’s classroom, which was next to hers, but when she got there Ms Claassens was not there. She asked the learners where Learner A was and they said that Born in Africa took her to the hall. It was before the second break and not during the break. She went to the hall and where the children were standing outside the hall. She saw Learner A crying, she asked her if she was alright and asked her to come with her to her classroom because she wanted to talk to her to hear if she was OK. Learner A said that she would come with her to her classroom. She put her arm around Learner A’s shoulder to comfort her since she was crying and Learner A came voluntarily with her to her classroom. When they came into the Foundation Phase block Ms Claassens and Ms Johnson heard how Learner A was crying and came out of their classrooms and walked with her to her classroom. There was nothing asked of her to “ leave my child”. She spoke to Learner A in front of her class and Ms Johnson and Ms Claassens and said she was very sorry that Learner A wet herself, that she could understand that she was upset and that she was sorry that she did not hear her and did not give her the bathroom key. Learner A told her that it was alright and went back with Ms Claassens and Ms Johnson to their classrooms. About 12h30 the afternoon she for the third time went to Ms Claassens’s classroom. She knocked on the door and Ms Claassens said she could come in. Ms Claassens was sitting at her desk and she asked Ms Claassens if she could speak to Learner A. Learner A came towards Ms Claassens’s desk and stood between her and Ms Claassens. Some of the learners made a noise and Ms Claassens took the cane from her desk and hit one of the learners making a noise. Learner A told her about the gift that she won and she told her she was proud of her and pleased that she won the prize. After that she returned to her classroom. That was Thursday 16 March 2017 when the incident happened. She reiterated that she did not hit Learner A. She accepted the pulling side which was taking her away from Born in Africa but she put her arm around Learner A’s shoulder and she came with her voluntarily.
35. Ms Gertenbach testified as follows under cross-examination: She had never hit learners before as an Educator. She was not prepared to answer the question about the charges that alleged she assaulted three learners in 2015 and 2016, because it had absolutely nothing to do with this case. She saw the charge sheet but had never assaulted a learner. As to whether she concluded a plea bargain then, she was only here to testify to what stood on the charge sheet for this case, because that was not part of a disciplinary hearing. If the respondent wanted her to answer to any other charges they should have been raised in another disciplinary hearing. She maintained that she would not answer questions relating to a previous charge sheet. After she was asked whether she would agree that after the first charges were concluded she was again charged and again signed a plea bargain on 8 February 2017, the applicant had an emotional breakdown and the hearing stood down for about one hour for the applicant to compose herself and to be comforted by her parents. Her cross-examination continued when she indicated that she was ready to do so. Although Learner A had tapped her three times she could as a reasonable person have thought that it was urgent, but at that stage her first priority was with the learner in her classroom and not that she was not prepared to help other learners. She had a class of 35 learners and did not know that Learner A was in the class and apologised if she did not immediately assist her. She and Ms Claassens had a good relationship and worked together as a team with no problems. As to why Ms Claassens, who in her testimony had agreed that they had a good relationship, would tell lies, to her knowledge Ms Claassens only occupied a temporary post at that stage whilst she had a permanent post. She regarded this as the reason why she told lies since Ms Claassens was after her post. She came to this conclusion because Ms Claassens was supposed to accompany the learner to her class, which she did not do, and because the learner wet herself she wanted to place the blame on her. How that fitted in with wanting her position was that an instruction was given by the HOD that she must lock the toilets and unlock them during the first and second breaks and that the Educator must accompany the learner when they come to ask for the key. Because Ms Claassens did not accompany the learner it resulted in the child wetting herself and the parents wanted to charge the school and blame it on her. She had never told lies and had never assaulted a learner and signed the plea bargain as advised by SAOU, who said it was better to plead guilty than to be dismissed. She realised now that since she was innocent it was the biggest mistake to plead guilty and not let it go through to a disciplinary hearing. She was forced to plead guilty by the respondent. She agreed that her version of what happened when she took Learner A from the Born in Africa assembly and that she went voluntarily with her was not put to Ms Claassens when she testified. She had testified to what happened in the classroom and had a witness to support her version and had told the truth. She never taught Learner A and never saw her marks, but agreed that she was an excellent learner if she was with Born in Africa. She did understand from Ms Claassens’s evidence that Learner A’s marks deteriorated and that she was traumatised. Her own version should be accepted because the learner wet herself and was most probably upset and traumatised because of that. She responded to the statement that the incident happened on a Thursday and she was already on a final written warning with a 6 weeks’ suspension to commence the following Monday, that it was not right. She took Learner A from the assembly because she knew how very traumatic it was to wet yourself and wanted to support her and ensure she was alright. She took her away because it was a private discussion which she did not want to do in front of the other learners at Born in Africa and asked her if she was alright in her classroom in front of Ms Claassens and Ms Johnson. It was not done during the break but before the break, although the witness had said during the break. She was asked why she did not do anything when she in her testimony saw Ms Claassens hitting a learner, that it was not her duty to take on another Educator about that and she did not want to humiliate Ms Claassens in front of her class. She felt it was not fair to Ms Claassens and there were a lot of Educators in the school who hit learners. As to why Learner A and her friends would say that she hit her and make that up, she responded that children could be easily influenced and to her knowledge the learners testified to a different version in the disciplinary hearing to what they had testified now. She referred to her notes to provide examples of how the three learners, who are on the same side and friends, had testified to different versions, pointing out contradictions in the learners’ testimony and that their evidence also contradicted that of Ms Claassens. She had testified that Learner A was traumatised after what happened to her but she could only contribute in part to that for her wetting herself, but that she never assaulted Learner A. She signed the plea bargain because she was forced to do that. It was not true that Learner A hid behind Ms Claassens’s chair when she entered the classroom. She responded to the statement that she was a liar and twisting the truth and had over a period of time humiliated the respondent’s learners and that she was also charged for swearing at a learner and concluded a plea bargain for that, that she was also innocent of that and was forced to sign the plea bargain and that Mr Medea also threatened her and wanted her away from the school because she was a whistle blower and was aware of rumours about malpractices with the school’s finances.
36. There was no re-examination of this witness.
37. Learner D testified as follows in person in his evidence in chief, agreeing to tell the truth: He recognised the applicant as being in her class. He knew who Learner A was and was in the class when the incident happened. He confirmed the sketch of the classroom and how it looked. He sat at the back of the class and indicated where he was on the sketch. He saw Learner A when she came into the classroom and he was inside the classroom when it happened. When Learner A entered the classroom she only walked in and took the bathroom key and the door would not open and she wet her pants. He was dead certain that the applicant did not hit Learner A when she came in. There were no other children who were not in his class who also came in. He knew Learner C but did not know if she was there. He did not know either if Learner B was there. While Learner A was in the classroom the applicant was busy at the table with papers. The tables and chairs were a bit further away from one another than at the venue. Learner A did cry when she got back and the applicant called Ms Johnson and them. The key was on the front table in front of the blackboard in the sketch.
38. Learner D testified as follows under cross-examination: He was certain that Learner A came in and took the key. The applicant was at the back table (desk) when Learner A came in and took the key. Learner A took the key without asking the applicant and the applicant did not see this. He did not know when he was asked to come to this hearing. The applicant asked him to come and testify because he was in the classroom. Nobody said to him what he must say here and the applicant told him he must tell the truth. He told the truth when he said that Learner A came in and took the key without telling the applicant. The applicant was sitting at the table when Learner A came in. He remembered that there was a girl with the applicant at the table but he did not know why she was there. He could not see the toilet from where he was sitting in the back. He knew that the applicant tried to open the door because he stood up and looked out of the classroom door. Somebody called him which is why he stood up and looked out of the door. He agreed that he could not just stand up and go to the door while the teacher was still in the classroom. He could not remember when the applicant asked him to tell the truth here but agreed that it was after what happened. He was now 10 years old and was 8 years old at the time of the incident.
39. There was no re-examination of this witness.
CLOSING ARGUMENT
40. The parties requested at the conclusion of the arbitration that written closing arguments be handed in due to the time constraints and the time that had elapsed since the arbitration commenced. This was agreed to, with the following submission dates agreed upon, which would be sent by e-mail to the ELRC and copied to another, and to be forwarded afterwards to the Panelist by the ELRC, with the ELRC to be requested to have the award due date adjusted accordingly:
The respondent by 19 November 2019
The applicant by 22 November 2019
The respondent’s reply by 25 November 2019
41. The closing arguments were all received on the due dates. They are not repeated here for the sake of brevity, but have been taken into account in arriving at the award.
ANALYSIS OF EVIDENCE AND ARGUMENT
42. I am required to determine, on the balance of probabilities and in the circumstances of this case, whether the dismissal of the applicant, Ms M Gertenbach, by the respondent, the Department of Education - Western Cape, for alleged misconduct was fair on substantive grounds only and to grant the appropriate relief if unfairness is found.
43. From the outset I am aware that this matter poses the particular challenge of the testimony of child witnesses as defined in the Childrens Act 38 of 2005 (the CA) and the application of the principle of the best interests of the child as contained in section 28(2) of the Constitution of the RSA, which even if not raised by the parties I am still bound to consider, as well as the reliability and credibility of the evidence presented by the parties’ witnesses and the probability of the parties’ respective versions.
44. I am also mindful of the charge brought against the applicant to which she had pleaded not guilty in her disciplinary hearing and of which she was found guilty of and led to her dismissal, and is repeated here for ease of reference:
CHARGE 1
It is alleged that you are guilty of misconduct in terms of Section 18(1)(r) of the Act, in that during the first term of 2017, you assaulted learner A, a learner at Kranshoek Primary School in that you hit the learner twice on the shoulder and/or pulled the learner to your classroom.
45. Section 18(1)(r) of the Employment of Educators Act 76 of 1998 as amended (the EEA) under Chapter 5 Incapacity and Misconduct relating to serious misconduct, reads as follows:
18. (1) Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she-
(r) assaults, or attempts to or threatens to assault, another employee or another person;
46. I also refer again to the facts which were established and agreed as being in dispute at the commencement of the arbitration, being as follows:
Whether the alleged assault(s) on learner A occurred on 16 March 2017.
Whether the dismissal of the applicant was substantively fair.
47. This dispute therefore turns around whether the applicant had, on the balance of probabilities, assaulted Learner A on 16 March 2017 by hitting her on the shoulder and/or pulling her to her classroom, which is the evidence which will be focused on in determining this matter.
48. It is unfortunate that this dispute had taken such a long journey over a period in excess of two years to reach its resolution since the incident occurred on 16 March 2017 and the finding of dismissal was confirmed by the MEC on 3 September 2018, with the inevitable challenges to witnesses’ recall of the detail that had transpired at the time of the alleged incident(s). This will be taken into consideration in the evaluation of their evidence.
49. In deciding this matter it is also necessary for me to address the unavoidable issue of credibility, since material factual disputes emerged during the arbitration.
50. In Marapula & Others v Consteen (Pty) Ltd [1999] 8 BLLR 829 (LC) at 837 C – F the Court said the following in relation to the evaluation of evidence and the discharge of the onus by an employer:
“The onus is on the employer to prove that the dismissal was fair (section 192 of the LRA) on a preponderance of probability. In my opinion, the onus is discharged if the employer can show, by credible evidence, that its version is the more probable and acceptable version. The credibility of witnesses and the probability or improbability of what they say should not be regarded as separate enquiries to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the employer’s version, an investigation where questions of demeanour and impression are measured against the content of the witnesses’ evidence, where the importance of any discrepancies or contradictions are assessed and where a particular story is tested against facts which cannot be disputed and against the inherent probabilities, so that at the end of the day one can say with conviction that one version is more probable and should be accepted, and that therefore the other version is false and may be rejected with safety.”
51. Assessing credibility is however not a matter of comparing the number of witnesses on one side with the number presenting an opposing version. I have to weigh up all the evidence in order to decide whether it was reliable or not and whether the truth was told, despite any shortcomings. In order to reach a just verdict based on the truth, I must be able to consider all the relevant admissible evidence. For this reason the basic principle in evaluating evidence is that evidence must be weighed in its totality. In this regard Navsa JA in S v Trainor 2003(1) SACR 35(SCA) at 41b-c said the following:
“A conspectus of all evidence is required. Evidence that is reliable should be weighed alongside such as may be found to be false. Independently verifiable evidence, if any, should be weighed to see if it supports any of the evidence tendered. In considering whether evidence is reliable, the quality of the evidence must of necessity be evaluated, as must corroborative evidence, if any. Evidence, of course; must be evaluated against the onus on any particular issue or in respect of the case in its entirety....”
52. When evaluating or assessing evidence, it is therefore imperative to evaluate all the evidence, and not to be selective in determining what evidence to consider. As Nugent J (as he then was) in S v Van der Meyden 1999 (1) SACR 447 (W) stated at 450:
“What must be borne in mind, however, is that the conclusion which is reached (whether it be to convict or to acquit) must account for all the evidence. Some of the evidence might be found to be false, some of it might be found to be unreliable, and some of it might be found to be only possibly false or unreliable, but none of it may simply be ignored.”
53. From the aforementioned it is therefore clear that the evidence must be assessed in its totality in order to arrive at a meaningful conclusion.
54. Bearing the foregoing principles, opinions and cautions in mind, I will attempt to apply these principles, rules and guidelines to assess the evidence of the parties’ witnesses, as relevant to the main fact in dispute, without going into the detail of all the evidence of the parties’ witnesses.
With respect to the evidence which was presented, the following was noted:
55. The parties’ four learner (child) witnesses with ages of 9 and 10 years old at the time of the arbitration, tended to contradict one another with respect to certain of the details of the events that had transpired. Much of this could be ascribed to the passing of a considerable period of time and their lack of recall of the events, making it difficult to reconcile their individual versions.
56. For example, the applicant’s learner witness, Learner D, who according to the sketch layout of the classroom sat close, almost next to, where the applicant was standing at her desk, contradicted the main evidence of the applicant herself and what Learner A did inside the applicant’s classroom at the time of the alleged hitting incident. The applicant had testified that Learner A tapped her on the arm to attract her attention hence Learner A and the applicant were in close proximity, whereas Learner D had stated that Learner A entered the classroom, took the bathroom key (which was located at the opposite side of the classroom at the blackboard as testified to by the applicant) and left without any interaction with the applicant.
57. As another example, the evidence of Learners B and C did not fully support the evidence of Learner A herself as to who accompanied her, where they were and what exactly happened. It is noted that Learner C did not testify at all as to what happened in the incident surrounding the classroom and bathroom, but only testified to when the applicant took Learner A away from the assembly. Learner B testified that she stood at the door of the applicant’s classroom and saw her hitting the applicant. From the sketch layout of the classroom it is possible that she could have seen that incident. Ms Claassens in her evidence was certain that two other learners accompanied Learner A to the bathroom, of which Learner C was one and the name of the other one could not be recalled, but could not see what happened after they had left her classroom to fetch the bathroom key. The probability was therefore that Learners B and C did accompany Learner A to the applicant’s classroom to fetch the bathroom key. There was also a lack of clarity as to whether Learner A got the bathroom key or not from the applicant, but whatever the circumstance, the evidence supported that she could not access the bathroom in time, or at all, to prevent herself from urinating in her clothes.
58. Because of these contradictions, the commonalities and probabilities in the evidence presented by the four learner witnesses and the three adult witnesses, Mr X and Ms Claassens for the respondent and the applicant herself, were sought, as well as where the evidence of the respective witnesses corroborated one another. These were established to be the following:
• That Learner A had urinated in her clothing as a result of the classroom and bathroom incident.
• That the applicant hit Learner A in her classroom.
• That Learner A was extremely distressed, cried, and continued crying during the course of that day and afterwards as a result of what had happened between her and the applicant.
• That Learner A was severely traumatised by the incident(s) of 16 March 2017, which had a negative impact on her wellbeing and performance at school.
59. As to whether the evidence of the respondent’s witnesses, despite certain discrepancies, was fabricated, no substantive motives were found for these witnesses to fabricate their evidence.
60. The applicant’s own evidence, who had the motive to defend her position, was also significant relating to her version of what had transpired, being the following:
• That she admitted that she kept Learner A waiting when the latter tried to attract her attention on three occasions by tapping or touching her on the arm, due to the priority of attending to the learner in her class who needed assistance.
• That she did hold or take Learner A at the shoulder when she told her to wait (Learner A’s version was that she hit her on the shoulder).
• That she saw Learner A running out of the classroom, which must have indicated to the applicant that there was something wrong, or it could have been because she had hit Learner A as alleged.
• That she became aware that Learner A had urinated in her clothing due to the delay in assisting her.
• That she did go and fetch Learner A away from the Born in Africa assembly to take her to her classroom.
• That she apologised to Learner A for being the cause of her distress which resulted in her urinating in her clothes.
61. It was not disputed that the applicant was hearing impaired, which in her version made her unaware that Learner A was behind her trying to attract her attention to get the key to the bathroom. The rest of her testimony and version of events could have been regarded as reasonable and credible, except that it was refuted by the testimony of the respondent’s witnesses. Her explanation that her priority was to attend to the learner that she was helping, is however not viewed as sufficient justification to ignore another learner who was so persistent in trying to attract her attention. As an Educator she should be aware that she had the responsibility of the wellbeing of all learners entrusted into the care of the school, and not only her own class. The argument that it was illegal for the respondent to keep the toilets locked, that it was the cause of the problem and that it was attempted to shift the blame on her, the applicant, was not supported by the evidence. It may be speculated that the school had a reason for keeping the toilets locked while classes were in progress, especially in the light of the trend in abusive conduct towards minor children. This rule however did not exonerate the applicant from not attending to Learner A.
62. It is possible that the humiliation of urinating in her clothing would have caused such stress and trauma to Learner A, but there must have been an added element which had resulted in her inordinate fear of the applicant, causing her to insist that she be taken out of Kranshoek Primary School. The only probable reason would have been that the applicant had indeed hit her and subsequently forcefully taken her away from the Born in Africa assembly to her classroom.
63. Although Ms Claassens came across as a somewhat nervous witness, she nevertheless stood firm in the testimony that she led and presented the demeanour of somebody who was telling the truth as she understood it. It is also noted that her evidence largely stood unchallenged and that the applicant’s version of certain incidents in which Ms Claassens was present such as that she and Ms Johnson accompanied the applicant and Learner A to the applicant’s classroom when Learner A was taken away from the Born in Africa assembly, as well as the allegation that she hit a learner with a cane in the applicant’s presence, were not put to Ms Claassens to respond to when she testified. It was also curious why the applicant had not reported such a serious infringement as hitting a learner to her seniors, given that she herself had been previously charged for similar transgressions. Ms Claassens did not mention about fetching the bathroom key from the applicant and giving it to Learner A after the urinating incident as testified to by Learner B. This version was also not put to her to respond to by both the representatives. The applicant’s version that Ms Claassens had lied as to what had transpired, presumably at the time of the disciplinary hearing, so that she could occupy the applicant’s post if she was dismissed, is viewed as a disingenuous approach by the applicant to introduce a motive as to why Ms Claassens would incriminate her, and was not supported since Ms Claassens subsequent to the incident obtained a permanent post at another school. It was also not put to Ms Claassens when she testified that she saw the applicant take or pull a crying Learner A at the arm from the Born in Africa assembly and tried to stop the applicant from doing that, that the applicant did not do that but had put her arm around the applicant’s shoulder to comfort her and that Learner A went voluntarily with her. Learner C also testified to this incident in that she saw the applicant pull a crying Learner A away from that assembly, which corroborated Ms Claassens’s evidence.
64. Mr X, Learner A’s father, made a positive impression and presented as a concerned father, who also became emotional during his evidence, with it difficult to fault his evidence regarding the state of his daughter’s mind after the incident and the trauma that was displayed, which resulted in her being taken to another school at his daughter’s insistence. He may not have been aware of the full circumstances of what had transpired at the time of the applicant’s disciplinary hearing and only became aware at the arbitration of Learner A urinating herself, but that did not detract from the main evidence that he presented. The incident that Mr X testified to about when the applicant came to their residence after the incident accompanied by the SAPS was not disputed and accepted as common cause. It can be speculated that the applicant may have done so because she knew that she was in trouble.
65. I also appreciated that the applicant was in a very distressed state of mind during the arbitration, which involved at least two emotional breakdowns during the proceedings and her having to be comforted by her parents who were present to support her, although the parents did not sit in during the arbitration. It was obvious that the arbitration process itself was traumatic for the applicant, who from the admitted documentary evidence had a history of psychological challenges. It must be borne in mind however that this was a course of action that she herself had elected and exposed herself to. It is in particular noted that the applicant had under cross-examination refused to respond to the previous incidents, the plea bargains and other sanctions that had been imposed for similar and other conduct in the past as documented in the admitted documents, contending that it had nothing to do with the present case and that she was forced to sign the plea bargains. These were not unreasonable questions from the other party’s representative since a past history of similar transgressions are normally highlighted in proceedings of this nature for the Panelist to arrive at the appropriate sanction if a finding of guilt is established. This resulted in the applicant’s previous disciplinary record remaining largely unchallenged.
FINDING
66. Findings are based on the balance of probabilities, with only brief reasons supplied as required in section 138(7)(a) of the LRA.
67. I am fully aware that the onus of proof is on the respondent in this matter. However, despite certain instances of apparent inconsistency in the evidence presented by the respondent’s witnesses, especially the child witnesses, I have already expressed my doubt as to the probability of the applicant’s version of what transpired on 16 March 2017. The balance of probabilities therefore support that the applicant was guilty of the charges ascribed to her and that her actions did constitute assault against a learner. The act of ignoring a learner who was in apparent urgent need and caused her to publicly urinate herself, certainly did not uphold the interest of the child and resulted in humiliation and added trauma to a vulnerable child, whose wellbeing was entrusted to her as an Educator.
68. As to what constitutes assault, guidance is sought from The Concise Oxford Dictionary, Eighth Edition which inter alia defines “assault” as follows: a violent physical or verbal attack; in law an act that threatens physical harm to a person (whether or not actual harm is done). This implies that an element of actual or threatened physical harm should be present in the action perpetrated. To this could also be added emotional harm and distress, which it was evident was caused to Learner A as a result of the applicant’s conduct.
69. Due to the nature of this matter, the best interests of the child require to be highlighted again, since the child must be considered before a decision affecting his or her life is made, as provided for in section 28(2) of the Constitution of the RSA and section 8 of the Childrens Act 38 of 2005 (the CA). As mentioned earlier, even if this is not pertinentely raised by the parties in an arbitration I am obliged to consider the best interest of the child in arriving at the appropriate award. Prof Adriaan van der Walt in a paper titled The Principle of the Best Interests of the South African Child delivered on 9 September 2016 states as follows: “Taking into account that section 28(2) constitutes a right, all organs of state must respect, protect, promote and fulfil the best interest of a child or children in general”. Section 8 of the CA also provides as follows: “In all matters concerning the care, protection and well-being of the child the standard of the child’s best interests is of paramount importance and must be applied.” By stating that the child’s best interests are of paramount importance it means that they can trump the rights and interests of persons older than 18 years of age. Van der Walt continues to define the best interests of the child as follows: “Basic interests, for example [in] physical, emotional and intellectual care; developmental interests [in entering] adulthood as far [as] possible without disadvantage; autonomy interests, especially the freedom to choose a lifestyle of their own. “
70. Based on the supporting evidence presented in the arbitration I find it improbable that learner A had fabricated the allegations against the applicant. It is more likely than not that those allegations are true and I therefore find the respondent’s version more probable as to the true state of events and am accordingly satisfied that the respondent has discharged the onus to prove that the applicant was guilty of assaulting in Learner A in the manner described in the charge against her for the two incidents that occurred on 16 March 2017 at Kranshoek Primary School.
71. Section 18(3) of the EEA provides a range of sanctions which can be imposed if an Educator has been found to to have commited misconduct as contemplated in subsection (1). The admitted documentary evidence of the applicant’s past disciplinary record reflected that the applicant had aleady entered into plea bargains for certain transgressions, some of which were of a similar nature, and with other disciplinary measures and sanctions short of dismissal already imposed. In particular there was a plea bargain entered into between the applicant and the respondent on 8 February 2017 prior to a disciplinary hearing being held, in which she had pleaded guilty to the charges of putting learners out of the classroom around 20 July 2016 and swearing to learners around 22 August 2016. In the plea bargain the applicant accepted a final written warning valid for 6 months and 6 weeks suspension without remuneration with effect from 1 April 2017 as well as anger management counselling. These sanctions were still valid at the time of the incidents on 16 March 2017. There was also on record a previous plea bargain entered into between the applicant and the respondent on 5 April 2016, also prior to a disciplinary hearing being held, in which she pleaded gulty to the charges of physically assaulting (punishing) learners during 2015 and 2016, with the sanction imposed of a final written warning and a fine of R5000,00 payable over 6 months. As already pointed out, the applicant refused to respond to this evidence when presented to her, save to contend that she was forced to sign the plea bargains and a denial that she was guilty of those transgressions. Due to the seeming repetitive nature of the applicant’s various transgressions the possibility that such conduct may be repeated in the future can not be ruled out and could be an important risk factor for the respondent.
72. As a result of what had transpired in this incident and being mindful of the interests of the child, and the damage that such conduct can cause for the respondent as a public institution to which the wellbeing of learners are entrusted, I find insufficient justification to set aside the sanction of dismissal. Reference is made again to the principle that the best interests of the child remain paramount, as held by the Constitutional Court in Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BCLR 761 (CC) that Section 28(2) of the Constitution of the Republic of South Africa imposes an obligation on all those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions. This consequently also binds Arbitrators or Panelists in a forum such as this to give consideration to the effect their decisions will have on children’s lives, and learners collectively, when they decide on the fairness or otherwise of the dismissal of an Educator and, even if unfairness is found, that an Educator should not be re-instated or re-employed if this will have a detrimental effect on the well-being and safety of learners.
73. In the circumstances the applicant’s dismissal is found to be fair on substantive grounds.
AWARD
74. The dismissal of the applicant, Ms M Gertenbach, by the respondent, the Department of Education- Western Cape, is found to be fair on substantive grounds and the matter is accordingly dismissed.
75. No order as to costs is made.
A C E REYNOLDS (Ms)
PANELLIST