PSES 174-19/20 WC
PSES 174-19/20 WC
Award Date:
28 February 2020
Case Number: PSES 174-19/20 WC
Province: Western Cape
Applicant: SAOU obo SYLVIA HENDRICKS
Respondent: Department of Education Western Cape
Issue: Unfair Labour Practice - Refusal to Re-instate i.t.o an agreement
Venue: Napier and Caledon
Award Date: 28 February 2020
Arbitrator: Hilary Mofsowitz
Panelist Hilary Mofsowitz
Case Number PSES 174-19/20 WC
Date of Award 28 February 2020
In the ARBITRATION between:
SAOU obo SYLVIA HENDRICKS
(Union / Applicant)
and
THE WESTERN CAPE EDUCATION DEPARTMENT
(Respondent)
Union/Applicant’s representative: Anika Bester
Telephone: 076 151 4569
Telefax
Email: anikab@saou.co.za
Respondent’s representative: Clayton Vorster
Telephone: 021 467 792 23Telefax:
Email: ClaytonVoster@westerncape.gov.za
Details of hearing and representation
1. This is the award in the matter between Suid Afrikaanse Onderwyse Unie (“SAOU”) on behalf of (“the applicant”) and the Western Cape Education Department (“the department”) (“the respondent”).
2. The matter was set down for arbitration in Napier and Caledon on 5 September 2019, 26 November 2019, 27 November 2019, 3 February 2020, 4 February 2020, 5 February 2020 and 6 February 2020. At the conclusion of arbitration, parties requested and were given the opportunity to submit written closing argument on 14 February 2020. Both parties utilized this opportunity and the respective submissions have been duly considered.
3. Ankia Bester (“Bester”) an office bearer of SAOU, represented the applicant.
4. Clayton Vorster (“Vorster”) a labour relations officer, represented the respondent.
5. The proceedings were digitally recorded. The documentary evidence forms part of the record.
6. The services of an intermediary and interpreter were used.
Issue to be determined
7. I have to decide whether the applicant’s dismissal was procedurally and substantively fair. The dispute was referred in terms of section 191 of the Labour Relations Act 66 of 1995 as amended (“the LRA”) as well as the applicable prescripts regulated by the ELRC. The applicant sought to be re-instated.
Background to the dispute
8. The applicant was employed as an educator at Agulas School of Skills which is situated in Napier in the Western Cape. She had approximately twenty-six years service with the WCED and had been an educator at the school since 2002. At the time that the applicant was dismissed, she earned a monthly salary of R 26 980.97. The applicant was dismissed on or around 26 April 2019. The school specializes in teaching its learners practical skills, as the learners are mostly cognitively/emotionally/physically/behaviorally impaired. The learners mostly possess IQ scores between fifty to sixty (and in some cases, higher scores). The applicant taught at the school when it was a mainstream school, prior to the school converting to a school of skills for learners with special needs. The applicant specialized in the teaching subject of English First Additional Language. The learners were mostly Afrikaans speaking.
9. The applicant was dismissed on the grounds of conduct. There were fifteen allegations relating in the main to the following: Failure to submit documentation such as an educator portfolio, question papers/memorandums; Failing to attend morning meetings without a reasonable explanation; Using derogatory/insulting/improper language towards learners; Acting in an unacceptable manner by tearing up a leaner’s R 100.00 note; Grabbing a learner and throwing him out the classroom; Assaulting a learner by smacking him in the face; Depriving a learner of the right to an education by throwing him out of the classroom; Reporting late for duty; Submitting written and oral marks for leaners where oral assessments were not done; Submitting oral and written assessment marks in circumstances where written assessments were not done. Most of the allegations relate to the first term of 2018, with a few exceptions. All of the allegations relate to section 18 of the Employment of Educators Act 76 of 1998 (“the EEA”). The notice to attend a disciplinary hearing, the allegation sheet and the disciplinary hearing outcome forms part of the record.
10. The applicant challenged the sanction of dismissal on substantive grounds. In the main, the applicant denied the allegations or alternatively where she conceded that she did commit the misconduct, she explained the reasons to justify her conduct. The applicant seeks to be re-instated.
11. The rules or standards were not disputed. In other words, the applicant did not deny that the respondent had the right to expect of educators the standards or rules reflected in the allegations. The thrust of the applicant’s case, is that there were compelling reasons to deviate from the standards/rules or alternatively, she denied that she was in breach of the rules/standards. There was no evidence that the rules/standards were not reasonable. The applicant’s qualifications were not placed in dispute, including an Honors degree and specialized training in dealing with special needs learners.
12. The applicant’s prior disciplinary record forms part of the record. The applicant received a final written warning (and a fine) for assaulting a learner in May 2004. The applicant was charged with depriving learners with an education and insubordination towards management in 2015. No sanction was imposed and the applicant was referred to ICAS for counselling and assistance. The applicant received a verbal, written warning and final written warning in 2017, relating to improper conduct and insubordination. The applicant received a final written warning for failing to submit planning and educator portfolios, failing to submit in terms of the due date, insubordination and failing to adhere to instructions. This final written warning was issued in February 2018 and was valid for a period of six months.
13. All learners testified in a protected and secure environment. They all testified with the assistance of an intermediary (who has been trained by the Department of Justice). They were unable to see the applicant when they entered or exited the room and also when they testified. It was agreed between parties that the names of the learners would not be divulged for purposes of the award and their names would remain confidential to the parties. Prior to each learner testifying, I ensured that each learner understood the difference between telling the truth and telling a lie. I confirmed the importance and implications of telling the truth.
The respondent’s evidence and argument
14. HP, a sixteen-year-old learner testified. He confirmed that the applicant grabbed his money when he requested to take the money to the finance clerk for school fees or other school related activities. He had R 300.00 with him, which his parents provided. The applicant tore up his R 100.00 note. He reported the incident to the principal. He denied waving the money in front of the applicant. The applicant did not deny that she tore up the money.
15. DH, a sixteen-year-old learner, testified. It was his testimony, that when he queried why the applicant was shouting at the class, she swore at him. She used similar words that have the meaning “Keep your f…. mouth shut; you are not the teacher”. He reported this to the principal and also wanted to report it to the psychologist at the district office. The applicant regularly used these kinds of words with the class, although at other times, he described her as “quite nice”. Due to this, he does not feel safe in the class. It was also his testimony, that he did not complete an oral assessment for English, in the first term of 2018 (although he was awarded marks for this assessment). He conceded that there are times when the learners are naughty and disruptive.
16. WJ, a sixteen- year- old leaner, testified. He confirmed that he did not do an oral (in English) for the first term of 2018. Only a written assessment was completed. He fully understands what an oral assessment is and had done one in 2017. He was not aware that other learners, completed their oral assessments.
17. BE, a seventeen- year- old learner, testified. He confirmed that he did not complete a written assessment for English for the first term of 2018. However, marks were handed in for him for an oral and written assessment. He did the oral assessment. It was also his evidence that he witnessed the applicant, grabbing AT and she threw him against the desk/table and instructed him to leave the classroom. It was in response to him asking a question about the school work. She was angry with him. BE explained his testimony through drawing a sketch of the classroom. He denied that AT had been sufficiently naughty to warrant this.
18. AT, a seventeen- year- old learner testified. It was his evidence that the applicant physically assaulted him. This allegation was also mentioned in the paragraph above. The applicant threw his school book on the floor, grabbed him by the collar and threw him against a desk. She grabbed him by the collar of his shirt, the top button broke off and as a consequence of being dragged, he fell on the floor and this resulted in a bleeding nose. After he fell to the floor, the applicant told him to leave the classroom. He reported the incident to the principal. The principal saw that the button of his shirt was broken and that his nose was bleeding. The incident was also witnessed by BE. AT also confirmed that he did not complete a written assessment in the first term of 2018 (although he received a mark for it). He only completed an oral assessment.
19. BE was recalled as a witness on account of the applicant handing in a document, after he had completed his testimony on a previous occasion. It was a document, which purported to be his written assessment in the first term of March 2018. BE denied that it was his assessment and denied that it was his signature. He was asked by both representatives to write various words on a blank piece of paper. These papers form part of the record.
20. JA, a seventeen-year-old learner testified. He witnessed the incident described in paragraph fifteen above. He heard the applicant say to DH words to the effect such as “jy moet jou fokken bek hou” or that he must keep his f…mouth shut. He also denied completing an oral assessment in the first term of 2018.
21. CA, a seventeen- year-old learner, testified and confirmed that he did not complete an oral assessment during the entire year of 2018. No points or marks were allocated for any verbal discourse.
22. EW, a sixteen-year-old learner testified. It was his evidence, that he asked the applicant to leave the classroom to go to the bathroom, he touched her hand, and she smacked his right cheek. In general, he described the applicant’s conduct as acceptable, while at other times, she was rude and put learners out the classroom, especially when they asked for work. She also instructed learners not to touch the door handle, as she feared that they would give her germs. He reported the incident to his mother, who in turn, reported it to the principal.
23. BJ, a sixteen-year-old learner testified. He witnessed the incident described in paragraph twenty-two above. He described the applicant as “wild and rude”.
24. JM, a twenty-year old former learner, testified. He witnessed an incident when the applicant told AH to “f…out of her class” or words to that effect. They were in the same class in 2018. He also confirmed that he did not complete an oral assessment in the first term of 2018. There were many occasions, when the applicant refused learners to come inside the classroom. He described the applicant as a “rough” educator. It was also his evidence, that the applicant pasted certain materials in his book, of which he had no knowledge. At no stage, did the applicant explain to him, that he was doing an oral assessment.
25. AH, who is now twenty years old, and is an ex-learner, testified. He confirmed the allegation described in paragraph twenty-four above. He confirmed that the applicant told him to “f…out of her classroom”. It was his evidence that when learners upset her, she puts them out the classroom. He conceded that he initially “liked” her and enjoyed English classes.
26. Rudolph Johannes (“Johannes”) testified. He served as the principal of the school for the period 2012 until March 2019. He therefore held the position of principal, at the time that the allegations against the applicant emerged (2017 to 2018). He left the school and now fulfills the role of principal at a different school. He initially explained the problems encountered with the applicant in relation to her failure to hand in crucial documentation, especially in relation to classroom planning and learner assessments. He explained the importance of this documentation and the steps taken to assist the applicant and to remedy the problem. Certain documentation was outstanding from the previous year. As a consequence, the school was unable to issue assessment marks for the learners (in English as a subject) at the end of the first term of 2018. Parents, therefore, did not receive assessment results. As these relevant documents, were also not completed in the second term, the deputy principal had to step in and complete the assessments. In the absence of proper planning, the special needs of the learners cannot be addressed. When assessment marks were handed in, the recorded mark sheets were not included. Question papers and/or memorandums were not handed in. In other words, in some cases, marks were allocated, but without any proof. The same problem occurred in other terms, and when confronted, the applicant blamed her conduct on her “medical condition”. It was undisputed that the applicant was declared medically incapacitated (due to a psychiatric condition), for the period 29 May 2018 to 30 June 2018.
27. Johannes also confirmed the allegations relating to the applicant not attending morning briefing sessions and/or arriving late for work. There were times, when she arrived at work on time, but still elected not to attend the briefing sessions. He stressed the importance of attending the sessions and why he considered the applicant’s explanation/ excuses for not attending, to be unreasonable. Johannes referred to relevant documentation in support of his evidence. There were many occasions, that she did not inform him, when she would be late. It was undisputed that the applicant lived close to the school.
28. In relation to the allegations, concerning learner complaints about unacceptable or improper conduct, Johannes confirmed the following: DH reported what the applicant said to him (as per paragraph fifteen above); AT reported how he had been treated (as per paragraph eighteen above) and Johannes had witnessed the blood spots on his shirt, the dirt on his clothes and the broken button on his shirt; AH reported the incident when the applicant swore at him and put him out of the class (as described in paragraph twenty-five above); a learner TA complained that the applicant referred to him as a “murderer and rapist”; EW reported to him how the applicant had smacked him in his face (as per paragraph twenty-two above) and EW refused to return to the applicant’s classroom- he was extremely upset and the incident was witnessed by BJ who also confirmed the incident.
29. Johannes confirmed the corrective and progressive discipline taken against the applicant, which is detailed above. It was his evidence, that on most occasions, the applicant acknowledged her wrong doing and at times, apologized for her conduct and committed to improving (at arbitration, the applicant disputed this). The applicant was fully aware of the concept of “corporal punishment” and the respondent’s zero tolerance of any kind of assault (verbal or physical) of educators towards learners. The respondent has issued a directive that deals with corporal punishment. Johannes was aware that the applicant experienced certain personal problems, and he did his best to support her through her difficulties. On many occasions, the applicant blamed her health and personal problems, as contributing to her conduct. On most occasions, she did not appeal against the sanctions imposed. Johannes detailed the assistance, he offered to the applicant, including, workshops, training, performance improvement sessions, referral to ICAS, personal wellness workshops, support material, the upgrading of her classroom, consultative meetings and other forms of intervention. However, as a result of her conduct, he no longer trusts her ability to teach the learners. Other educators did not experience the same problems that the applicant experienced.
30. Melinda Hall (“Hall”), testified. At the time of the allegations, she held the position of deputy principal. She is currently, the acting principal. It was her testimony, that most of the required documentation was not received on time or in some circumstances, was not received at all. To substantiate this allegation, Hall referred to a report that she compiled to show non-compliance with the time frames. This report forms part of the record. For example, the applicant failed to submit the educator portfolio (undisputed), the applicant did not submit all the question papers (disputed) and not all the mark sheets were handed in on time. Learners complained that they never did all the required tests or assessments. Even if these assessments were done, the applicant never provided proof of how she calculated the various marks. Hall provided the applicant with support and assistance. When she visited the applicant’s classroom to render support, the applicant walked out. She presented the applicant with various templates. When the applicant arrived late, she assisted her to line up the leaners outside the classroom. As a result of all the transgressions, Hall is of the opinion that the applicant can no longer be trusted.
The applicant’s evidence and argument
31. The applicant testified. She confirmed some of the extremely difficult challenges that she faced with learners who were extremely naughty and disruptive. For example, learners brought frogs into her classroom (sometime in 2016), learners danced in the class, they frightened her with a dead snake, put her hair on fire, learners who were not supposed to be in the classroom, came into the class and caused disruption and the natural disruption/disobedience of cognitively impaired learners. These problems (and there were many other problematic situations) as well as the lack of support received, caused a negative effect on her performance. She was forced to issue learners with “punishment letters”. These letters indicate what kind of problems she experienced with learners.
32. The applicant denied the allegations relating to physical or verbal assault, she denied using derogatory or unacceptable language towards learners, she denied throwing learners out the class and she denied hitting any learners. Either learners left the class of their own accord, or she had to chastise leaners for not obeying the rules, the learners were disruptive, she did tear the R 100.00 note but the learner was taunting her, she did not smack EW; he touched her hand and she simply pushed his hand away.
33. In relation to the required documentation, it was the applicant’s evidence that she experienced certain difficulties in compiling all the information, she needed to liaise with colleagues and did not receive the assistance she required. She conceded that certain documentation was submitted late, but she denied the respondent’s allegation in relation to the question papers. The assessment marks were eventually handed in but she could not recall exactly when these were handed in. The challenging behavior of the learners, also negatively impacted on her completing the documentation on time. The applicant conceded that she did not attend the briefing sessions as listed in the allegation sheet. However, the reason she did not attend the briefing sessions was because of the attitude and behavior of other educators, who were “nasty” towards her and on account of the conflict between herself and the other educators. She felt unwelcome. Her own medical problems also impacted on her attendance levels and her “sleeping problems” caused her to be late in the mornings.
34. In relation to learner assessments, the applicant confirmed that she conducted all the oral assessments that were required from her. Due to the special needs of the learners, she conducted the orals in a less conventional way (as the conventional way was intimidating to the learners). She explained the less informal way of conducting orals. She presented the mark sheets to Hall. She also confirmed that she conducted all the required written assessments and she denied the respondent’s allegations in this respect. The applicant referred to the written assessment that she presented during the course of arbitration (this resulted in the re-calling of BE to testify). She found a copy of this assessment at home. It was her evidence, that BE signed the assessment form. On account of learners doing the required oral and written assessments, her conduct cannot be regarded as dishonest or irregular.
35. In relation to the disciplinary enquiry, it was the applicant’s evidence that she was not afforded the opportunity to be represented and was not afforded the opportunity to present her version.
36. Marlene Swanepoel (“Swanepoel”) testified. She is twenty years old and an ex-learner from Agulas. She spent the period 2015 to 2018 at the school. The applicant taught her English. She recalled that the applicant taught her in 2015 and 2016, but she could not recall whether the applicant taught her in 2018. She enjoyed the English classes that the applicant taught and she considered the applicant to be a “good” teacher. She gave work to the learners. She was never rude or abusive, while the learners were disruptive, taunted her and even put “Vicks” on the door handle. The naughty learners were not dealt with.
37. Elizabeth Wessels (“Wessels”) testified in support of the applicant’s case. She previously was an educator at Agulas. She has known the applicant since 2002 when the school was a mainstream institution. She was not aware of any problems with the applicant at that time. She was not an educator at the school when it was converted to a school of skills. The applicant rented accommodation from her for the period 2012 to 2017. The reason that the applicant came to stay with her, is on account of being evicted from the hostel. She was aware of the problems that the applicant experienced on account of the applicant telling her. The applicant was discouraged by the lack of support. She described the abuse that the applicant experienced such as being kicked, her hand was broken, she was pushed and chocked, thrown out of the class, her classes were disrupted, her hair was burnt and similar other incidents. This resulted in the applicant experiencing sleeping problems. She saw the applicant’s preparation and paperwork and she considered her to be an efficient and caring teacher. She also witnessed how upset the applicant was. At social events the applicant was treated differently to other educators (everyone received a present and the applicant was excluded) and for certain events, she was not invited. She did not believe that the applicant committed any of the misconduct as reflected in the list of fifteen allegations.
38. Elmae Afrika (“Afrika”) testified. She attended the school before it was converted to a school of skills. The applicant taught her English at the time that the school was a mainstream school (2003 to 2007). She described the applicant’s positive attributes. She also did not believe that the applicant committed the misconduct for which she was dismissed. There are many people in the community who believe that the applicant should return to the school. There are a number of parents who have indicated that they and their children, did not experience any problems with the applicant. For this reason, people from the community have signed a petition including parents and learners from 2018. The petition was handed in (towards the end of arbitration) and forms part of the record.
39. Raydeen Jacobs (“Jacobs”) testified. She was also a learner at Agulas, before it was converted to a school of skills (2000 to 2005). She rendered a service as an assistant at the school, around 2015 to 2016. Jacobs described the applicant’s positive attributes at the time that the applicant taught her English. She did not believe that the applicant committed the misconduct for which she was dismissed. The principal Johannes tended to protect the learners and not the educators. She witnessed the learners treating the applicant badly, but this was before 2018.
Analysis of evidence and argument
40. The applicant was dismissed on fifteen allegations relating to misconduct. The allegations essentially related to the applicant’s failure to submit certain documentation, dishonesty in her failure to conduct certain learner assessments for which she indicated an assessment mark, unacceptable or abusive conduct towards learners and failure to attend meetings/late coming. These allegations will be dealt with below. In essence, the applicant denied most of the allegations or provided reasons and/or justification for her conduct. She argued that dismissal was substantively and procedurally unfair and sought to be re-instated.
Prior disciplinary record/progressive discipline
41. It is common cause that the applicant was issued with a number of prior warnings (which have been detailed above). The warnings related to the following; assault on a learner, depriving learners of an education, improper conduct and a final written warning in February 2018, for failing to submit planning and educator portfolios. This warning was still valid. While the applicant did not dispute receiving the warnings, the thrust of her argument was that the respondent did not follow its regulated procedures and/or the applicant was not afforded the right of representation. Even if I were to give the applicant the benefit of the doubt in this respect, the prior record serves to confirm that the applicant must have been aware of the rules and standards expected of her and she must have been aware of the respondent’s dissatisfaction with her conduct. The fact that so many prior disciplinary steps were taken against her, in an effort to correct her conduct (as opposed to harsher disciplinary measures), is not indicative of a school principal or employer that wanted to get rid of her.
Was dismissal procedurally fair?
42. At the start of arbitration, the applicant did not place the procedural aspects of dismissal, in dispute. This means, that the respondent’s witnesses, were not able to lead any evidence in this respect. The applicant indicated that she was not notified of her right to be represented and she was not afforded the opportunity to present a version to the presiding officer. I had the opportunity to peruse the disciplinary hearing outcome report. It is clear from the report that the applicant was advised of her right to be represented. It is also clear, from the notice of the disciplinary hearing, that the applicant was advised of her right to be represented by a fellow employee or a representative of a trade union. I have also noted that the presiding officer summarized the applicant’s version of the various allegations and also noted her plea that she did not commit the misconduct as per the allegation sheet. I therefore find that there is no basis to the applicant’s claim. In these circumstances, the requirements for procedurally fair dismissal were met. The respondent has discharged the onus to show that dismissal was procedurally fair.
Was dismissal substantively fair?
Charge 1
43. This allegation related to the applicant’s failure to submit or submit late, certain documentation such as her educator portfolio, question papers/memorandums and assessment marks. The applicant did not dispute the rule or standard and she did not dispute the importance of this documentation. She conceded that certain of the documentation was not submitted, but she also argued that certain of the documentation was submitted. The evidence of Johannes and Hall was clear and convincing. I have accepted that the applicant was sufficiently experienced to submit her portfolio without assistance (which is the reason she advanced for failing to submit it). The applicant provided proof of submitting question papers/memorandums, but it was incomplete as certain class information was not provided and there was no plausible reason given for the missing documentation. The evidence also supports the conclusion that the applicant failed to submit her assessment marks in conjunction with the recorded mark sheets and the implications of this were very serious. I therefore find that the applicant did commit the misconduct in relation to this charge, or at best, partially complied with what was expected of her. While some of the documentation was submitted, some documentation was submitted late with serious consequences and some documentation was not submitted at all.
Charges 2 and 13
44. The applicant conceded that she did not attend the morning briefing sessions, where the objectives of such meetings were not disputed. She conceded that there were times when she was present at the school’s premises, but elected not to attend. Her reasons for failing to attend these meetings, do not condone her conduct. The fact that other educators sat on “her” chair or that other educators were “nasty” towards her, is not sufficient justification to absent herself from staff meetings without permission to do so. I have noted that the applicant never raised a complaint about this to the school principal or the labour relations directorate of the respondent if the principal did not assist her. The applicant also conceded that she regularly reported late for duty. She attributed this to her medical condition which caused her to sleep late. In assessing the evidence and the applicant’s own concessions, I find that the applicant did commit the misconduct as per the allegations.
Charges 3 and 6
45. As no direct evidence was led to support these allegations, I find that the applicant did not commit the misconduct reflected in these two allegations.
Charges 4, 5, 8, 9, 10, 11, 12
46. These allegations relate to unacceptable conduct towards learners. The details of the allegations are reflected above. All the learners confirmed that the applicant either used improper and unacceptable language towards them or that the applicant threw learners out of the classroom or that the applicant grabbed a learner by his school attire or that the applicant smacked a learner across his face. The learners associated with each charge testified and an additional learner that witnessed the respective incidents, also testified to confirm the allegations. All the incidents were reported to the school principal, who confirmed the allegations. The learners testified in a candid and reliable manner and I found all their evidence to be convincing. The evidence of each learner was supported by a second learner. The learners that were subjected to the applicant’s unacceptable conduct, were from different year groups. It therefore seems highly unlikely that all these incidents could have been fabricated, especially as the learners reported the incidents to the school principal. Johannes confirmed that AT was bleeding and his shirt collar was broken. While the applicant denied all of these allegations, I cannot find any plausible reason for the learners to deliberately frame her. The leaners remained consistent in their testimony even though a long time had passed since the incidents. The fact that the applicant may have been a firm and disciplined educator, is not sufficient to find that the evidence of the learners was improbable. I, therefore find, that the applicant did commit the misconduct as per these allegations.
Charge 7
47. This allegation relates to the applicant tearing up a R 100.00 note, which the learner brought to school, to pay for school fees and/or other related school activities. The learner brought three R 100.00 notes. The applicant conceded (at arbitration) that she tore up the R 100.00 note and has not to date refunded the money. Even if the learner did wave the money at the applicant (which the learner denies), I do not find that it was sufficient justification/provocation to condone the applicant’s conduct. This was exacerbated by the applicant’s refusal to pay the money back. I therefore find that the applicant committed the misconduct as per the allegation.
Charges 14 and 15
48. The first allegation relates to the applicant’s failure to conduct oral assessments (for the classes known as 1.4 and 2.4 and 4.1) during the first term of 2018. The second allegation relates to the applicant’s failure to conduct written assessments (for the class known as 2.3) during the first term of 2018. Approximately five learners testified in support of the first allegation (oral assessments) and two learners testified in support of the second allegation (written assessments). The principal and deputy principal also confirmed that there was no evidence of the applicant conducting these assessments and that the learners had reported this to Hall, the then deputy principal. The applicant explained in detail how she conducted or adapted the format of oral assessments in order to cater for the special needs of the learners. I am inclined to give her the benefit of the doubt in this respect (in that she may have used her discretion in the manner she conducted oral assessments), but it does not account for the lack of recording of the informal oral assessments. Hall confirmed that the applicant could not account for the marks she attributed to the learners. The applicant produced a copy of the written assessment of BE. I find it highly irregular, that the first time that the applicant produced this document, was at arbitration (approximately the second/ third or fourth day of arbitration). It could potentially have been valuable information for the applicant, yet she failed to use this crucial information to her advantage. By agreement between the parties, BE was recalled to be questioned as to whether it was indeed his assessment and whether it was his signature on the written assessment. BE denied that it was his assessment. The applicant’s representative required BE to write a few words in an attempt to confirm that it was BE’s signature on the written assessment. This forms part of the record. Although I am not a hand writing expert, on face value, the words written by BE, do not resemble his signature on the written assessment. I therefore conclude, that the applicant did not comply with the requirements of conducting oral and written assessments, or at best, partially complied.
Was there sufficient justification for the applicant’s conduct?
49. The applicant sought to rely on the behavior of the learners as justification for her conduct. I have accepted that some of the learners were disruptive, naughty, difficult to manage, disrespectful and at times behaved in an unacceptable and unruly manner. The applicant’s evidence about a dead snake, frogs, putting a flame to her hair and general disruption of the classroom (as well as other factors) was not disputed. One must accept that educating learners with special needs requires patience and skills that may require a different skill set as opposed to educating main stream learners. However, the applicant was a highly experienced and qualified educator. I cannot find that the problems that the applicant faced with the learners, can serve as justification for her conduct. There is no excuse for using vulgar and demonstrating unacceptable conduct, for throwing learners out the classroom or for abusing learners. If the applicant felt she was not obtaining sufficient support from the principal or the school, she could have easily have reported her concerns to the WCED, either in Caledon, or the head office in Cape Town. I have also noted that there was no evidence to suggest that other educators experienced the same problems with learners that the applicant, experienced. Johannes confirmed that other educators followed the rules and handled the learners well. I found the evidence of the learners to be compelling. I have made some allowances for inaccuracies considering the special needs of the learners and the time lapse since 2018. Their description of the applicant was both positive and negative. They described the applicant as being “nice” on occasions, some described her as a “good teacher”. However, they also described her as “rough” and “aggressive”. Their description of the applicant served to fortify my own assessment of her. Learners across a number of different class groups were consistent in their testimony. Similarly, the applicant drew my attention to her relationship with the principal and the team of other educators at the school. On the one hand, I have obtained the sense that the principal/other educators marginalized the applicant and did not accept her as part of the team. On the other hand, there was reliable evidence that both Johannes and Hall made numerous attempts to assist and support the applicant. As an example, the applicant conceded that Hall did her planning for the second term in 2018. I cannot find any compelling evidence that either Johannes or Hall deliberately fabricated a version to get rid of the applicant. However, I also obtained the impression that the applicant created her own problems in her relationships with others. Either way, I cannot conclude that the problems the applicant encountered (including her own health and personal circumstances), can sufficiently justify committing misconduct, to the extent that the applicant did. Towards the end of arbitration, the applicant provided me with a petition in which learners and members of the community supported the applicant’s plea to return to work. As there was no direct evidence to support the petition and on account that the petition was never canvassed with the respondent’s witnesses, I have attached limited weight to this evidence.
Was dismissal an appropriate sanction?
50. An arbitrator must have regard to the totally of circumstances in order to decide whether dismissal was a fair and appropriate sanction. An arbitrator must have regard to all the evidence tendered at arbitration and decide whether in the circumstances, the sanction of dismissal is fair, reasonable and appropriate. I am required to consider all the relevant factors and circumstances. I am persuaded that the respondent’s version is the more probable one. I am persuaded that the applicant committed the misconduct for which she was dismissed (other than where I have indicated otherwise). I find that the applicant did not obey reasonable instructions in relation to handing in relevant documentation; she failed to attend important briefing sessions, she arrived late for work; she displayed improper conduct towards learners; she assaulted learners ; threw learners out of the classroom thereby depriving them of an education and was dishonest in her reporting of assessments. She was dishonest as she indicated marks for assessments that had not taken place. She falsified an official document in relation to an assessment which was not done. Her conduct was deliberate, intentional and repeated. The applicant was a very experienced educator and she must have known that what she was doing was wrong. It appeared to me that the applicant was unable to control her temper or emotions. She demonstrated this during the course of arbitration. During her testimony, she became overly emotional or explosive. I had to stop proceedings and caution her. This behavior mirrors how the learners described her. Parents entrust their children for safe keeping at school. Educators take the role and responsibilities of parents while learners are at school. Educators have a duty to set an example to learners and are responsible for teaching them what is right and wrong. Viewed against this background, the applicant’s conduct is viewed in an extremely serious light and is regarded as unacceptable and irregular. The applicant showed no remorse and continually denied the allegations. Educators are leaders within the school environment as well as the community environment. The interest of learners is paramount. Violent or abusive behavior towards learners, cannot be tolerated. It goes against the essence of just society norms and the prescripts that regulate “corporal punishment”. The applicant’s conduct was in breach of important rules and the harm or potential harm caused by her conduct was serious. The applicant did not dispute the rules or standards. Johannes and Hall testified that they could not trust the applicant. I have also noted the decision in Woolworths (Pty) Ltd v Mabija and Others (PA3/14) (2016) ZALAC 5 (19 February 2016). In this case, the labour appeal court found that dismissal need not depend on evidence of the breakdown in the trust relationship. The court concluded that in some cases, the outstandingly bad conduct of the employee would warrant an inference that the trust relationship has been destroyed. Based on the Woolworths case and based on the fact that the school principal and deputy principal testified that they could no longer trust the applicant, I find that the relationship of trust between the parties has irretrievably broken down. I therefore find, even with the applicant’s long service, the sanction of dismissal is fair and appropriate. The respondent made some attempts to correct the applicant’s conduct and even if it did not (and I discount all the previous warnings/disciplinary steps), I still find dismissal to be an appropriate sanction based on the cumulative effect of all the transgressions and the serious nature of the applicant’s conduct. Likewise, even if I were to give the applicant the benefit of the doubt in relation to some of the allegations (for example charges 1 and 2 and 13 and 14), I would still arrive at the same conclusion. The other allegations as detailed above (even with the exceptions) are so sufficiently serious to warrant the sanction of dismissal. I have balanced all the factors and arrived at this conclusion with due regard to the totally of circumstances and being mindful of the harm that the applicant has suffered as a result of the dismissal. The decision of the WCED to impose the sanction of dismissal, does not warrant interference.
51. In summary, the applicant’s conduct crossed the boundaries of acceptable conduct. The applicant’s conduct has resulted in the respondent not being able to trust her. I therefore find that dismissal was a fair and appropriate sanction and does not warrant interference. The respondent has therefore discharged the onus to show that dismissal was substantively fair.
Award
52. I find the dismissal of the applicant, Sylvia Hendricks by the respondent, the Western Cape Education Department, to be procedurally fair and substantively fair.
Hilary Mofsowitz
Arbitrator
PSES 174-19/20 WC
Province: Western Cape
Applicant: SAOU obo SYLVIA HENDRICKS
Respondent: Department of Education Western Cape
Issue: Unfair Labour Practice - Refusal to Re-instate i.t.o an agreement
Venue: Napier and Caledon
Award Date: 28 February 2020
Arbitrator: Hilary Mofsowitz
Panelist Hilary Mofsowitz
Case Number PSES 174-19/20 WC
Date of Award 28 February 2020
In the ARBITRATION between:
SAOU obo SYLVIA HENDRICKS
(Union / Applicant)
and
THE WESTERN CAPE EDUCATION DEPARTMENT
(Respondent)
Union/Applicant’s representative: Anika Bester
Telephone: 076 151 4569
Telefax
Email: anikab@saou.co.za
Respondent’s representative: Clayton Vorster
Telephone: 021 467 792 23Telefax:
Email: ClaytonVoster@westerncape.gov.za
Details of hearing and representation
1. This is the award in the matter between Suid Afrikaanse Onderwyse Unie (“SAOU”) on behalf of (“the applicant”) and the Western Cape Education Department (“the department”) (“the respondent”).
2. The matter was set down for arbitration in Napier and Caledon on 5 September 2019, 26 November 2019, 27 November 2019, 3 February 2020, 4 February 2020, 5 February 2020 and 6 February 2020. At the conclusion of arbitration, parties requested and were given the opportunity to submit written closing argument on 14 February 2020. Both parties utilized this opportunity and the respective submissions have been duly considered.
3. Ankia Bester (“Bester”) an office bearer of SAOU, represented the applicant.
4. Clayton Vorster (“Vorster”) a labour relations officer, represented the respondent.
5. The proceedings were digitally recorded. The documentary evidence forms part of the record.
6. The services of an intermediary and interpreter were used.
Issue to be determined
7. I have to decide whether the applicant’s dismissal was procedurally and substantively fair. The dispute was referred in terms of section 191 of the Labour Relations Act 66 of 1995 as amended (“the LRA”) as well as the applicable prescripts regulated by the ELRC. The applicant sought to be re-instated.
Background to the dispute
8. The applicant was employed as an educator at Agulas School of Skills which is situated in Napier in the Western Cape. She had approximately twenty-six years service with the WCED and had been an educator at the school since 2002. At the time that the applicant was dismissed, she earned a monthly salary of R 26 980.97. The applicant was dismissed on or around 26 April 2019. The school specializes in teaching its learners practical skills, as the learners are mostly cognitively/emotionally/physically/behaviorally impaired. The learners mostly possess IQ scores between fifty to sixty (and in some cases, higher scores). The applicant taught at the school when it was a mainstream school, prior to the school converting to a school of skills for learners with special needs. The applicant specialized in the teaching subject of English First Additional Language. The learners were mostly Afrikaans speaking.
9. The applicant was dismissed on the grounds of conduct. There were fifteen allegations relating in the main to the following: Failure to submit documentation such as an educator portfolio, question papers/memorandums; Failing to attend morning meetings without a reasonable explanation; Using derogatory/insulting/improper language towards learners; Acting in an unacceptable manner by tearing up a leaner’s R 100.00 note; Grabbing a learner and throwing him out the classroom; Assaulting a learner by smacking him in the face; Depriving a learner of the right to an education by throwing him out of the classroom; Reporting late for duty; Submitting written and oral marks for leaners where oral assessments were not done; Submitting oral and written assessment marks in circumstances where written assessments were not done. Most of the allegations relate to the first term of 2018, with a few exceptions. All of the allegations relate to section 18 of the Employment of Educators Act 76 of 1998 (“the EEA”). The notice to attend a disciplinary hearing, the allegation sheet and the disciplinary hearing outcome forms part of the record.
10. The applicant challenged the sanction of dismissal on substantive grounds. In the main, the applicant denied the allegations or alternatively where she conceded that she did commit the misconduct, she explained the reasons to justify her conduct. The applicant seeks to be re-instated.
11. The rules or standards were not disputed. In other words, the applicant did not deny that the respondent had the right to expect of educators the standards or rules reflected in the allegations. The thrust of the applicant’s case, is that there were compelling reasons to deviate from the standards/rules or alternatively, she denied that she was in breach of the rules/standards. There was no evidence that the rules/standards were not reasonable. The applicant’s qualifications were not placed in dispute, including an Honors degree and specialized training in dealing with special needs learners.
12. The applicant’s prior disciplinary record forms part of the record. The applicant received a final written warning (and a fine) for assaulting a learner in May 2004. The applicant was charged with depriving learners with an education and insubordination towards management in 2015. No sanction was imposed and the applicant was referred to ICAS for counselling and assistance. The applicant received a verbal, written warning and final written warning in 2017, relating to improper conduct and insubordination. The applicant received a final written warning for failing to submit planning and educator portfolios, failing to submit in terms of the due date, insubordination and failing to adhere to instructions. This final written warning was issued in February 2018 and was valid for a period of six months.
13. All learners testified in a protected and secure environment. They all testified with the assistance of an intermediary (who has been trained by the Department of Justice). They were unable to see the applicant when they entered or exited the room and also when they testified. It was agreed between parties that the names of the learners would not be divulged for purposes of the award and their names would remain confidential to the parties. Prior to each learner testifying, I ensured that each learner understood the difference between telling the truth and telling a lie. I confirmed the importance and implications of telling the truth.
The respondent’s evidence and argument
14. HP, a sixteen-year-old learner testified. He confirmed that the applicant grabbed his money when he requested to take the money to the finance clerk for school fees or other school related activities. He had R 300.00 with him, which his parents provided. The applicant tore up his R 100.00 note. He reported the incident to the principal. He denied waving the money in front of the applicant. The applicant did not deny that she tore up the money.
15. DH, a sixteen-year-old learner, testified. It was his testimony, that when he queried why the applicant was shouting at the class, she swore at him. She used similar words that have the meaning “Keep your f…. mouth shut; you are not the teacher”. He reported this to the principal and also wanted to report it to the psychologist at the district office. The applicant regularly used these kinds of words with the class, although at other times, he described her as “quite nice”. Due to this, he does not feel safe in the class. It was also his testimony, that he did not complete an oral assessment for English, in the first term of 2018 (although he was awarded marks for this assessment). He conceded that there are times when the learners are naughty and disruptive.
16. WJ, a sixteen- year- old leaner, testified. He confirmed that he did not do an oral (in English) for the first term of 2018. Only a written assessment was completed. He fully understands what an oral assessment is and had done one in 2017. He was not aware that other learners, completed their oral assessments.
17. BE, a seventeen- year- old learner, testified. He confirmed that he did not complete a written assessment for English for the first term of 2018. However, marks were handed in for him for an oral and written assessment. He did the oral assessment. It was also his evidence that he witnessed the applicant, grabbing AT and she threw him against the desk/table and instructed him to leave the classroom. It was in response to him asking a question about the school work. She was angry with him. BE explained his testimony through drawing a sketch of the classroom. He denied that AT had been sufficiently naughty to warrant this.
18. AT, a seventeen- year- old learner testified. It was his evidence that the applicant physically assaulted him. This allegation was also mentioned in the paragraph above. The applicant threw his school book on the floor, grabbed him by the collar and threw him against a desk. She grabbed him by the collar of his shirt, the top button broke off and as a consequence of being dragged, he fell on the floor and this resulted in a bleeding nose. After he fell to the floor, the applicant told him to leave the classroom. He reported the incident to the principal. The principal saw that the button of his shirt was broken and that his nose was bleeding. The incident was also witnessed by BE. AT also confirmed that he did not complete a written assessment in the first term of 2018 (although he received a mark for it). He only completed an oral assessment.
19. BE was recalled as a witness on account of the applicant handing in a document, after he had completed his testimony on a previous occasion. It was a document, which purported to be his written assessment in the first term of March 2018. BE denied that it was his assessment and denied that it was his signature. He was asked by both representatives to write various words on a blank piece of paper. These papers form part of the record.
20. JA, a seventeen-year-old learner testified. He witnessed the incident described in paragraph fifteen above. He heard the applicant say to DH words to the effect such as “jy moet jou fokken bek hou” or that he must keep his f…mouth shut. He also denied completing an oral assessment in the first term of 2018.
21. CA, a seventeen- year-old learner, testified and confirmed that he did not complete an oral assessment during the entire year of 2018. No points or marks were allocated for any verbal discourse.
22. EW, a sixteen-year-old learner testified. It was his evidence, that he asked the applicant to leave the classroom to go to the bathroom, he touched her hand, and she smacked his right cheek. In general, he described the applicant’s conduct as acceptable, while at other times, she was rude and put learners out the classroom, especially when they asked for work. She also instructed learners not to touch the door handle, as she feared that they would give her germs. He reported the incident to his mother, who in turn, reported it to the principal.
23. BJ, a sixteen-year-old learner testified. He witnessed the incident described in paragraph twenty-two above. He described the applicant as “wild and rude”.
24. JM, a twenty-year old former learner, testified. He witnessed an incident when the applicant told AH to “f…out of her class” or words to that effect. They were in the same class in 2018. He also confirmed that he did not complete an oral assessment in the first term of 2018. There were many occasions, when the applicant refused learners to come inside the classroom. He described the applicant as a “rough” educator. It was also his evidence, that the applicant pasted certain materials in his book, of which he had no knowledge. At no stage, did the applicant explain to him, that he was doing an oral assessment.
25. AH, who is now twenty years old, and is an ex-learner, testified. He confirmed the allegation described in paragraph twenty-four above. He confirmed that the applicant told him to “f…out of her classroom”. It was his evidence that when learners upset her, she puts them out the classroom. He conceded that he initially “liked” her and enjoyed English classes.
26. Rudolph Johannes (“Johannes”) testified. He served as the principal of the school for the period 2012 until March 2019. He therefore held the position of principal, at the time that the allegations against the applicant emerged (2017 to 2018). He left the school and now fulfills the role of principal at a different school. He initially explained the problems encountered with the applicant in relation to her failure to hand in crucial documentation, especially in relation to classroom planning and learner assessments. He explained the importance of this documentation and the steps taken to assist the applicant and to remedy the problem. Certain documentation was outstanding from the previous year. As a consequence, the school was unable to issue assessment marks for the learners (in English as a subject) at the end of the first term of 2018. Parents, therefore, did not receive assessment results. As these relevant documents, were also not completed in the second term, the deputy principal had to step in and complete the assessments. In the absence of proper planning, the special needs of the learners cannot be addressed. When assessment marks were handed in, the recorded mark sheets were not included. Question papers and/or memorandums were not handed in. In other words, in some cases, marks were allocated, but without any proof. The same problem occurred in other terms, and when confronted, the applicant blamed her conduct on her “medical condition”. It was undisputed that the applicant was declared medically incapacitated (due to a psychiatric condition), for the period 29 May 2018 to 30 June 2018.
27. Johannes also confirmed the allegations relating to the applicant not attending morning briefing sessions and/or arriving late for work. There were times, when she arrived at work on time, but still elected not to attend the briefing sessions. He stressed the importance of attending the sessions and why he considered the applicant’s explanation/ excuses for not attending, to be unreasonable. Johannes referred to relevant documentation in support of his evidence. There were many occasions, that she did not inform him, when she would be late. It was undisputed that the applicant lived close to the school.
28. In relation to the allegations, concerning learner complaints about unacceptable or improper conduct, Johannes confirmed the following: DH reported what the applicant said to him (as per paragraph fifteen above); AT reported how he had been treated (as per paragraph eighteen above) and Johannes had witnessed the blood spots on his shirt, the dirt on his clothes and the broken button on his shirt; AH reported the incident when the applicant swore at him and put him out of the class (as described in paragraph twenty-five above); a learner TA complained that the applicant referred to him as a “murderer and rapist”; EW reported to him how the applicant had smacked him in his face (as per paragraph twenty-two above) and EW refused to return to the applicant’s classroom- he was extremely upset and the incident was witnessed by BJ who also confirmed the incident.
29. Johannes confirmed the corrective and progressive discipline taken against the applicant, which is detailed above. It was his evidence, that on most occasions, the applicant acknowledged her wrong doing and at times, apologized for her conduct and committed to improving (at arbitration, the applicant disputed this). The applicant was fully aware of the concept of “corporal punishment” and the respondent’s zero tolerance of any kind of assault (verbal or physical) of educators towards learners. The respondent has issued a directive that deals with corporal punishment. Johannes was aware that the applicant experienced certain personal problems, and he did his best to support her through her difficulties. On many occasions, the applicant blamed her health and personal problems, as contributing to her conduct. On most occasions, she did not appeal against the sanctions imposed. Johannes detailed the assistance, he offered to the applicant, including, workshops, training, performance improvement sessions, referral to ICAS, personal wellness workshops, support material, the upgrading of her classroom, consultative meetings and other forms of intervention. However, as a result of her conduct, he no longer trusts her ability to teach the learners. Other educators did not experience the same problems that the applicant experienced.
30. Melinda Hall (“Hall”), testified. At the time of the allegations, she held the position of deputy principal. She is currently, the acting principal. It was her testimony, that most of the required documentation was not received on time or in some circumstances, was not received at all. To substantiate this allegation, Hall referred to a report that she compiled to show non-compliance with the time frames. This report forms part of the record. For example, the applicant failed to submit the educator portfolio (undisputed), the applicant did not submit all the question papers (disputed) and not all the mark sheets were handed in on time. Learners complained that they never did all the required tests or assessments. Even if these assessments were done, the applicant never provided proof of how she calculated the various marks. Hall provided the applicant with support and assistance. When she visited the applicant’s classroom to render support, the applicant walked out. She presented the applicant with various templates. When the applicant arrived late, she assisted her to line up the leaners outside the classroom. As a result of all the transgressions, Hall is of the opinion that the applicant can no longer be trusted.
The applicant’s evidence and argument
31. The applicant testified. She confirmed some of the extremely difficult challenges that she faced with learners who were extremely naughty and disruptive. For example, learners brought frogs into her classroom (sometime in 2016), learners danced in the class, they frightened her with a dead snake, put her hair on fire, learners who were not supposed to be in the classroom, came into the class and caused disruption and the natural disruption/disobedience of cognitively impaired learners. These problems (and there were many other problematic situations) as well as the lack of support received, caused a negative effect on her performance. She was forced to issue learners with “punishment letters”. These letters indicate what kind of problems she experienced with learners.
32. The applicant denied the allegations relating to physical or verbal assault, she denied using derogatory or unacceptable language towards learners, she denied throwing learners out the class and she denied hitting any learners. Either learners left the class of their own accord, or she had to chastise leaners for not obeying the rules, the learners were disruptive, she did tear the R 100.00 note but the learner was taunting her, she did not smack EW; he touched her hand and she simply pushed his hand away.
33. In relation to the required documentation, it was the applicant’s evidence that she experienced certain difficulties in compiling all the information, she needed to liaise with colleagues and did not receive the assistance she required. She conceded that certain documentation was submitted late, but she denied the respondent’s allegation in relation to the question papers. The assessment marks were eventually handed in but she could not recall exactly when these were handed in. The challenging behavior of the learners, also negatively impacted on her completing the documentation on time. The applicant conceded that she did not attend the briefing sessions as listed in the allegation sheet. However, the reason she did not attend the briefing sessions was because of the attitude and behavior of other educators, who were “nasty” towards her and on account of the conflict between herself and the other educators. She felt unwelcome. Her own medical problems also impacted on her attendance levels and her “sleeping problems” caused her to be late in the mornings.
34. In relation to learner assessments, the applicant confirmed that she conducted all the oral assessments that were required from her. Due to the special needs of the learners, she conducted the orals in a less conventional way (as the conventional way was intimidating to the learners). She explained the less informal way of conducting orals. She presented the mark sheets to Hall. She also confirmed that she conducted all the required written assessments and she denied the respondent’s allegations in this respect. The applicant referred to the written assessment that she presented during the course of arbitration (this resulted in the re-calling of BE to testify). She found a copy of this assessment at home. It was her evidence, that BE signed the assessment form. On account of learners doing the required oral and written assessments, her conduct cannot be regarded as dishonest or irregular.
35. In relation to the disciplinary enquiry, it was the applicant’s evidence that she was not afforded the opportunity to be represented and was not afforded the opportunity to present her version.
36. Marlene Swanepoel (“Swanepoel”) testified. She is twenty years old and an ex-learner from Agulas. She spent the period 2015 to 2018 at the school. The applicant taught her English. She recalled that the applicant taught her in 2015 and 2016, but she could not recall whether the applicant taught her in 2018. She enjoyed the English classes that the applicant taught and she considered the applicant to be a “good” teacher. She gave work to the learners. She was never rude or abusive, while the learners were disruptive, taunted her and even put “Vicks” on the door handle. The naughty learners were not dealt with.
37. Elizabeth Wessels (“Wessels”) testified in support of the applicant’s case. She previously was an educator at Agulas. She has known the applicant since 2002 when the school was a mainstream institution. She was not aware of any problems with the applicant at that time. She was not an educator at the school when it was converted to a school of skills. The applicant rented accommodation from her for the period 2012 to 2017. The reason that the applicant came to stay with her, is on account of being evicted from the hostel. She was aware of the problems that the applicant experienced on account of the applicant telling her. The applicant was discouraged by the lack of support. She described the abuse that the applicant experienced such as being kicked, her hand was broken, she was pushed and chocked, thrown out of the class, her classes were disrupted, her hair was burnt and similar other incidents. This resulted in the applicant experiencing sleeping problems. She saw the applicant’s preparation and paperwork and she considered her to be an efficient and caring teacher. She also witnessed how upset the applicant was. At social events the applicant was treated differently to other educators (everyone received a present and the applicant was excluded) and for certain events, she was not invited. She did not believe that the applicant committed any of the misconduct as reflected in the list of fifteen allegations.
38. Elmae Afrika (“Afrika”) testified. She attended the school before it was converted to a school of skills. The applicant taught her English at the time that the school was a mainstream school (2003 to 2007). She described the applicant’s positive attributes. She also did not believe that the applicant committed the misconduct for which she was dismissed. There are many people in the community who believe that the applicant should return to the school. There are a number of parents who have indicated that they and their children, did not experience any problems with the applicant. For this reason, people from the community have signed a petition including parents and learners from 2018. The petition was handed in (towards the end of arbitration) and forms part of the record.
39. Raydeen Jacobs (“Jacobs”) testified. She was also a learner at Agulas, before it was converted to a school of skills (2000 to 2005). She rendered a service as an assistant at the school, around 2015 to 2016. Jacobs described the applicant’s positive attributes at the time that the applicant taught her English. She did not believe that the applicant committed the misconduct for which she was dismissed. The principal Johannes tended to protect the learners and not the educators. She witnessed the learners treating the applicant badly, but this was before 2018.
Analysis of evidence and argument
40. The applicant was dismissed on fifteen allegations relating to misconduct. The allegations essentially related to the applicant’s failure to submit certain documentation, dishonesty in her failure to conduct certain learner assessments for which she indicated an assessment mark, unacceptable or abusive conduct towards learners and failure to attend meetings/late coming. These allegations will be dealt with below. In essence, the applicant denied most of the allegations or provided reasons and/or justification for her conduct. She argued that dismissal was substantively and procedurally unfair and sought to be re-instated.
Prior disciplinary record/progressive discipline
41. It is common cause that the applicant was issued with a number of prior warnings (which have been detailed above). The warnings related to the following; assault on a learner, depriving learners of an education, improper conduct and a final written warning in February 2018, for failing to submit planning and educator portfolios. This warning was still valid. While the applicant did not dispute receiving the warnings, the thrust of her argument was that the respondent did not follow its regulated procedures and/or the applicant was not afforded the right of representation. Even if I were to give the applicant the benefit of the doubt in this respect, the prior record serves to confirm that the applicant must have been aware of the rules and standards expected of her and she must have been aware of the respondent’s dissatisfaction with her conduct. The fact that so many prior disciplinary steps were taken against her, in an effort to correct her conduct (as opposed to harsher disciplinary measures), is not indicative of a school principal or employer that wanted to get rid of her.
Was dismissal procedurally fair?
42. At the start of arbitration, the applicant did not place the procedural aspects of dismissal, in dispute. This means, that the respondent’s witnesses, were not able to lead any evidence in this respect. The applicant indicated that she was not notified of her right to be represented and she was not afforded the opportunity to present a version to the presiding officer. I had the opportunity to peruse the disciplinary hearing outcome report. It is clear from the report that the applicant was advised of her right to be represented. It is also clear, from the notice of the disciplinary hearing, that the applicant was advised of her right to be represented by a fellow employee or a representative of a trade union. I have also noted that the presiding officer summarized the applicant’s version of the various allegations and also noted her plea that she did not commit the misconduct as per the allegation sheet. I therefore find that there is no basis to the applicant’s claim. In these circumstances, the requirements for procedurally fair dismissal were met. The respondent has discharged the onus to show that dismissal was procedurally fair.
Was dismissal substantively fair?
Charge 1
43. This allegation related to the applicant’s failure to submit or submit late, certain documentation such as her educator portfolio, question papers/memorandums and assessment marks. The applicant did not dispute the rule or standard and she did not dispute the importance of this documentation. She conceded that certain of the documentation was not submitted, but she also argued that certain of the documentation was submitted. The evidence of Johannes and Hall was clear and convincing. I have accepted that the applicant was sufficiently experienced to submit her portfolio without assistance (which is the reason she advanced for failing to submit it). The applicant provided proof of submitting question papers/memorandums, but it was incomplete as certain class information was not provided and there was no plausible reason given for the missing documentation. The evidence also supports the conclusion that the applicant failed to submit her assessment marks in conjunction with the recorded mark sheets and the implications of this were very serious. I therefore find that the applicant did commit the misconduct in relation to this charge, or at best, partially complied with what was expected of her. While some of the documentation was submitted, some documentation was submitted late with serious consequences and some documentation was not submitted at all.
Charges 2 and 13
44. The applicant conceded that she did not attend the morning briefing sessions, where the objectives of such meetings were not disputed. She conceded that there were times when she was present at the school’s premises, but elected not to attend. Her reasons for failing to attend these meetings, do not condone her conduct. The fact that other educators sat on “her” chair or that other educators were “nasty” towards her, is not sufficient justification to absent herself from staff meetings without permission to do so. I have noted that the applicant never raised a complaint about this to the school principal or the labour relations directorate of the respondent if the principal did not assist her. The applicant also conceded that she regularly reported late for duty. She attributed this to her medical condition which caused her to sleep late. In assessing the evidence and the applicant’s own concessions, I find that the applicant did commit the misconduct as per the allegations.
Charges 3 and 6
45. As no direct evidence was led to support these allegations, I find that the applicant did not commit the misconduct reflected in these two allegations.
Charges 4, 5, 8, 9, 10, 11, 12
46. These allegations relate to unacceptable conduct towards learners. The details of the allegations are reflected above. All the learners confirmed that the applicant either used improper and unacceptable language towards them or that the applicant threw learners out of the classroom or that the applicant grabbed a learner by his school attire or that the applicant smacked a learner across his face. The learners associated with each charge testified and an additional learner that witnessed the respective incidents, also testified to confirm the allegations. All the incidents were reported to the school principal, who confirmed the allegations. The learners testified in a candid and reliable manner and I found all their evidence to be convincing. The evidence of each learner was supported by a second learner. The learners that were subjected to the applicant’s unacceptable conduct, were from different year groups. It therefore seems highly unlikely that all these incidents could have been fabricated, especially as the learners reported the incidents to the school principal. Johannes confirmed that AT was bleeding and his shirt collar was broken. While the applicant denied all of these allegations, I cannot find any plausible reason for the learners to deliberately frame her. The leaners remained consistent in their testimony even though a long time had passed since the incidents. The fact that the applicant may have been a firm and disciplined educator, is not sufficient to find that the evidence of the learners was improbable. I, therefore find, that the applicant did commit the misconduct as per these allegations.
Charge 7
47. This allegation relates to the applicant tearing up a R 100.00 note, which the learner brought to school, to pay for school fees and/or other related school activities. The learner brought three R 100.00 notes. The applicant conceded (at arbitration) that she tore up the R 100.00 note and has not to date refunded the money. Even if the learner did wave the money at the applicant (which the learner denies), I do not find that it was sufficient justification/provocation to condone the applicant’s conduct. This was exacerbated by the applicant’s refusal to pay the money back. I therefore find that the applicant committed the misconduct as per the allegation.
Charges 14 and 15
48. The first allegation relates to the applicant’s failure to conduct oral assessments (for the classes known as 1.4 and 2.4 and 4.1) during the first term of 2018. The second allegation relates to the applicant’s failure to conduct written assessments (for the class known as 2.3) during the first term of 2018. Approximately five learners testified in support of the first allegation (oral assessments) and two learners testified in support of the second allegation (written assessments). The principal and deputy principal also confirmed that there was no evidence of the applicant conducting these assessments and that the learners had reported this to Hall, the then deputy principal. The applicant explained in detail how she conducted or adapted the format of oral assessments in order to cater for the special needs of the learners. I am inclined to give her the benefit of the doubt in this respect (in that she may have used her discretion in the manner she conducted oral assessments), but it does not account for the lack of recording of the informal oral assessments. Hall confirmed that the applicant could not account for the marks she attributed to the learners. The applicant produced a copy of the written assessment of BE. I find it highly irregular, that the first time that the applicant produced this document, was at arbitration (approximately the second/ third or fourth day of arbitration). It could potentially have been valuable information for the applicant, yet she failed to use this crucial information to her advantage. By agreement between the parties, BE was recalled to be questioned as to whether it was indeed his assessment and whether it was his signature on the written assessment. BE denied that it was his assessment. The applicant’s representative required BE to write a few words in an attempt to confirm that it was BE’s signature on the written assessment. This forms part of the record. Although I am not a hand writing expert, on face value, the words written by BE, do not resemble his signature on the written assessment. I therefore conclude, that the applicant did not comply with the requirements of conducting oral and written assessments, or at best, partially complied.
Was there sufficient justification for the applicant’s conduct?
49. The applicant sought to rely on the behavior of the learners as justification for her conduct. I have accepted that some of the learners were disruptive, naughty, difficult to manage, disrespectful and at times behaved in an unacceptable and unruly manner. The applicant’s evidence about a dead snake, frogs, putting a flame to her hair and general disruption of the classroom (as well as other factors) was not disputed. One must accept that educating learners with special needs requires patience and skills that may require a different skill set as opposed to educating main stream learners. However, the applicant was a highly experienced and qualified educator. I cannot find that the problems that the applicant faced with the learners, can serve as justification for her conduct. There is no excuse for using vulgar and demonstrating unacceptable conduct, for throwing learners out the classroom or for abusing learners. If the applicant felt she was not obtaining sufficient support from the principal or the school, she could have easily have reported her concerns to the WCED, either in Caledon, or the head office in Cape Town. I have also noted that there was no evidence to suggest that other educators experienced the same problems with learners that the applicant, experienced. Johannes confirmed that other educators followed the rules and handled the learners well. I found the evidence of the learners to be compelling. I have made some allowances for inaccuracies considering the special needs of the learners and the time lapse since 2018. Their description of the applicant was both positive and negative. They described the applicant as being “nice” on occasions, some described her as a “good teacher”. However, they also described her as “rough” and “aggressive”. Their description of the applicant served to fortify my own assessment of her. Learners across a number of different class groups were consistent in their testimony. Similarly, the applicant drew my attention to her relationship with the principal and the team of other educators at the school. On the one hand, I have obtained the sense that the principal/other educators marginalized the applicant and did not accept her as part of the team. On the other hand, there was reliable evidence that both Johannes and Hall made numerous attempts to assist and support the applicant. As an example, the applicant conceded that Hall did her planning for the second term in 2018. I cannot find any compelling evidence that either Johannes or Hall deliberately fabricated a version to get rid of the applicant. However, I also obtained the impression that the applicant created her own problems in her relationships with others. Either way, I cannot conclude that the problems the applicant encountered (including her own health and personal circumstances), can sufficiently justify committing misconduct, to the extent that the applicant did. Towards the end of arbitration, the applicant provided me with a petition in which learners and members of the community supported the applicant’s plea to return to work. As there was no direct evidence to support the petition and on account that the petition was never canvassed with the respondent’s witnesses, I have attached limited weight to this evidence.
Was dismissal an appropriate sanction?
50. An arbitrator must have regard to the totally of circumstances in order to decide whether dismissal was a fair and appropriate sanction. An arbitrator must have regard to all the evidence tendered at arbitration and decide whether in the circumstances, the sanction of dismissal is fair, reasonable and appropriate. I am required to consider all the relevant factors and circumstances. I am persuaded that the respondent’s version is the more probable one. I am persuaded that the applicant committed the misconduct for which she was dismissed (other than where I have indicated otherwise). I find that the applicant did not obey reasonable instructions in relation to handing in relevant documentation; she failed to attend important briefing sessions, she arrived late for work; she displayed improper conduct towards learners; she assaulted learners ; threw learners out of the classroom thereby depriving them of an education and was dishonest in her reporting of assessments. She was dishonest as she indicated marks for assessments that had not taken place. She falsified an official document in relation to an assessment which was not done. Her conduct was deliberate, intentional and repeated. The applicant was a very experienced educator and she must have known that what she was doing was wrong. It appeared to me that the applicant was unable to control her temper or emotions. She demonstrated this during the course of arbitration. During her testimony, she became overly emotional or explosive. I had to stop proceedings and caution her. This behavior mirrors how the learners described her. Parents entrust their children for safe keeping at school. Educators take the role and responsibilities of parents while learners are at school. Educators have a duty to set an example to learners and are responsible for teaching them what is right and wrong. Viewed against this background, the applicant’s conduct is viewed in an extremely serious light and is regarded as unacceptable and irregular. The applicant showed no remorse and continually denied the allegations. Educators are leaders within the school environment as well as the community environment. The interest of learners is paramount. Violent or abusive behavior towards learners, cannot be tolerated. It goes against the essence of just society norms and the prescripts that regulate “corporal punishment”. The applicant’s conduct was in breach of important rules and the harm or potential harm caused by her conduct was serious. The applicant did not dispute the rules or standards. Johannes and Hall testified that they could not trust the applicant. I have also noted the decision in Woolworths (Pty) Ltd v Mabija and Others (PA3/14) (2016) ZALAC 5 (19 February 2016). In this case, the labour appeal court found that dismissal need not depend on evidence of the breakdown in the trust relationship. The court concluded that in some cases, the outstandingly bad conduct of the employee would warrant an inference that the trust relationship has been destroyed. Based on the Woolworths case and based on the fact that the school principal and deputy principal testified that they could no longer trust the applicant, I find that the relationship of trust between the parties has irretrievably broken down. I therefore find, even with the applicant’s long service, the sanction of dismissal is fair and appropriate. The respondent made some attempts to correct the applicant’s conduct and even if it did not (and I discount all the previous warnings/disciplinary steps), I still find dismissal to be an appropriate sanction based on the cumulative effect of all the transgressions and the serious nature of the applicant’s conduct. Likewise, even if I were to give the applicant the benefit of the doubt in relation to some of the allegations (for example charges 1 and 2 and 13 and 14), I would still arrive at the same conclusion. The other allegations as detailed above (even with the exceptions) are so sufficiently serious to warrant the sanction of dismissal. I have balanced all the factors and arrived at this conclusion with due regard to the totally of circumstances and being mindful of the harm that the applicant has suffered as a result of the dismissal. The decision of the WCED to impose the sanction of dismissal, does not warrant interference.
51. In summary, the applicant’s conduct crossed the boundaries of acceptable conduct. The applicant’s conduct has resulted in the respondent not being able to trust her. I therefore find that dismissal was a fair and appropriate sanction and does not warrant interference. The respondent has therefore discharged the onus to show that dismissal was substantively fair.
Award
52. I find the dismissal of the applicant, Sylvia Hendricks by the respondent, the Western Cape Education Department, to be procedurally fair and substantively fair.
Hilary Mofsowitz
Arbitrator
PSES 174-19/20 WC