PSES282-18/19WC
PSES282-18/19WC
Award Date:
2 March 2020
Case Number: PSES282-18/19WC
Province: Western Cape
Applicant: ABRAHAMS S
Respondent: Department of Education Western Cape
Issue: Unfair Labour Practice - Suspension
Award Date: 2 March 2020
Arbitrator: Arthi Singh-Bhoopchand
Case No PSES282-18/19WC
In the matter between
ABRAHAMS S Applicant
and
DOE-WC Respondent
ARBITRATOR: Arthi Singh-Bhoopchand
HEARD: 1 December 2018; 7 February 2019; 12 March
2019; 27 June 2019; 24 January 2020
DELIVERED: 02 March 2020
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. This arbitration concerning an alleged unfair suspension and/or disciplinary action was convened for 1 December 2018, 7 February 2019, 12 March 2019, 27 June 2019 and 24 January 2020.
2. The applicant represented himself. The respondent was represented by Ms Matshaya, a labour relations official within the labour relations directorate of the respondent.
3. Two bundles of documents were handed in as evidence.
4. In accordance with the policy of the ELRC, the names of all the minor learners that testified during these proceedings are protected and their names are accordingly withheld. The minor learners were assisted by an intermediary during their testimony.
5. Throughout these proceedings the applicant displayed a consistent pattern of obstructive and disrespectful behaviour to the extent that I had to terminate proceedings on 27 June 2019 and 24 January 2019. After the aborted sitting on 27 June 2019 and after the applicant had been warned several times that his conduct was contemptuous, I issued a ruling dated 2 July 2019 in which I ruled as follows:
5.1 Applicant must accord the process its due respect and follow the process direction of the arbitrator.
5.2 Should the applicant fail to co-operate, proceedings will be terminated, and this matter will be determined on the evidence at hand to date.
6. The events that led to this ruling are contained in my written ruling and form part of the record and I therefore do not repeat them.
7. I also mention that after the sitting of 12 March 2019, the applicant made a written application for my recusal. The respondent opposed the application. The application was dismissed, and I issued a ruling in this regard on 30 April 2019. The papers and my written ruling also form part of the record and I do not repeat those details in this award. It was brought to my attention that the applicant had also applied for the recusal of the presiding officer of the internal disciplinary hearing and that that application was also refused.
8. When the hearing reconvened on 24 January 2020 at 10h00, it became immediately apparent to me from the applicant’s conduct, which entailed inter alia, disparaging and insulting comments about me, that he would once again not co-operate. As on previous occasions, I made this conclusion not only from what he was saying but also from his demeanour. I observed from his demeanour that he was angry, his facial expression and his general manner and attitude towards me. As he had been sufficiently warned of the consequence of such behaviour in my ruling dated 2 July 2019, I terminated the proceedings.
9. The complainant in this matter, a minor learner at the time, testified on 7 February 2019. He completed his evidence in chief and he was cross examined extensively thereafter, to the extent that he became distraught and he broke down in tears. Proceedings had to be adjourned. The applicant indicated that he had not concluded his cross examination. Although I was of the view that the complainant’s evidence had been sufficiently challenged, I nevertheless informed the Respondent to arrange for the learner to return when proceedings re-convened at a later date.
10. Proceedings re-convened on 12 March 2019. I was informed by the respondent that the learner had indicated that he did not wish to return to the process and the respondent closed its case. In the circumstances, I directed the applicant to proceed with his case. His evidence was part- heard and proceedings adjourned. The applicant informed me that he intended to subpoena the complainant to testify when proceedings resumed. Applicant concluded his testimony on 2 September 2019. Proceedings adjourned and reconvened on 24 January 2020.
11. I was informed that the complainant was not present despite having been subpoenaed by the applicant. Ms Matshaya informed me that Learner A’s (the complainant’s) grandmother had arrived at the venue to say that the learner would not return to testify. She also said that the applicant had arrived at their home with members of the South African Police to serve the subpoena. The applicant was present when this information was conveyed to me and he did not dispute this. I have already stated that due to applicant’s conduct, proceedings were terminated.
12. This award is based on the evidence led at the sittings on 1 December 2018, 7 February 2019, 12 March 2019 and 2 September 2020.
13. I requested an extension of time for the submission of this award.
BACKGROUND
14. The applicant is employed as an educator at Princeton High School. He faced the following charges at an internal disciplinary hearing:
CHARGE 1
It is alleged that you are guilty of misconduct in terms of section 18(l)(r) of the Employment of Educators Act 76/1998 (“the Act”)in that around the 1st and 2nd term of 2015 you assaulted Learner A, a learner at Princeton High School , by
• Pulling him from the chair by his collar; and /or
• Grabbing him by the arm; and/or
• Throwing him out of the class; and /or
• Throwing his bag out of the class
CHARGE 2
It is alleged that you are guilty of misconduct in terms of Section 18 (1)(t) of the
Act in that around 1st and 2nd term, you displayed disrespect towards others in
the workplace or demonstrated abusive insolent behaviour, by uttering words to
Learner A, with more or less the following meaning:
• “you must f…..n stay there;” and /or
• “you f…n don’t listen”
CHARGE 3
It is alleged that you are guilty of misconduct in terms of Section 18(1) (a) of
the Act in that around 1st and 2nd term, you failed to comply with section
29(1)(a) of the Constitution of South Africa Act 108 of 1996 in that you deprived
a grade 8 learner, a learner of Princeton High School from his right to
education by putting him out of the classroom for a period of one week.
15. The applicant was found guilty of all three charges at the conclusion of an internal disciplinary hearing which was held over a number of days. Applicant was represented by his trade union SADTU throughout the process. On the recommendation of the presiding officer, a sanction of a three- month suspension without pay coupled with a Final Written Warning was imposed on the applicant.
16. Applicant appealed to the Minister against the guilty finding and the sanction, but his appeal was dismissed, and the sanction was upheld.
17. Applicant disputes both the substantive and the procedural aspects of the disciplinary action taken against him.
SUMMARY OF EVIDENCE
Respondents Case
18. Two learners testified, namely the complainant, learner A, and a second learner who shall be referred to as learner B. Learner B testified first. He testified that he is currently in grade 11, but that he was in grade 8 at the time of the incident involving learner A which happened in 2015. Applicant was their math teacher at the time. Applicant always had his favourites and he usually made them sit at the front of the class. Learner A was seated towards the back, but on that day, he went to sit in front. Applicant had a problem with that, and he told learner A that he could not sit in front. Learner A said that he could not hear from the back and he therefore refused to go and sit in the back. Applicant got angry and became “a bit physical”. He took learner A by the jacket and put him outside the class. After Applicant “threw” learner A out of the class he went to learner A’s desk and took his bag and threw it on the floor. Learner A wanted to come back into the class, but Applicant would not let him come back. He swore at learner A and told him that he was a nuisance. He also said that learner A should stay out of his class for the whole week and that he should bring his mother to school. Learner A thus missed four days of maths class. He came to school every day and attended other classes, but he did not attend applicant’s maths class for the rest of the week. Applicant did not like learner A -he had his favourites. Applicant often used bad language and learners were afraid of him.
19. He also stated that applicant had called his father and threatened to beat him up if he allowed him to testify against him.
20. During cross examination it was put to him that at the time of the alleged incident, learners were seated in alphabetical order. His response was that at the time of the incident they were not seated in alphabetical order.
21. Learner A testified that the incident took place on a Monday during 2015 in Mr Abrahams maths class at around 8h15- 8h45. Applicant wanted him to sit at the back of the class. However, he wanted to sit in the front of the class as he could not hear properly at the back of the class. When the applicant instructed him to go and sit at the back, he refused. Applicant became angry and took his bag and books and threw them out of the class. He then pulled him by his shirt collar and threw him out of the class. Applicant swore at him and said that he should stay out of his class for a week and that he should bring his grandmother to see him. He then sent someone to call Mr Frantz. Mr Frantz is also a maths teacher and he was in the class next door. Mr Frantz came, and he told Mr Frantz that applicant threw him out of the class. He asked Mr Frantz if he could attend his class for that week and he agreed. He spent the rest of week’s math class with Mr Frantz. He attended all his other classes as per normal. His grandmother came to school on Wednesday. Every time she asked to see Mr Abrahams, he said that he was busy. His grandmother spoke to Mr Isaacs, the school principal. The following week he was allowed back in class and he was allowed to sit in front. The class was never seated in alphabetical order.
22. During cross examination it was put to him that he had testified at the disciplinary hearing that someone threw paper at the teacher. He agreed and said that someone did throw paper at the teacher and applicant thought that it was him. Generally, whenever someone threw something at the teacher, applicant would think that it was him.
23. It was also put to him that at the disciplinary hearing he had testified that applicant had asked him to leave the class and he left. He was asked why he now testified to a different version. His response was that he could not remember very well as all of this happened in 2015. He conceded that he did truant school sometimes but that he did not truant math class during that week. He maintained that applicant threw him out of class.
24. Applicant continued to challenge Learner A’s evidence in chief to the point where the learner broke down in tears. Proceedings had to be adjourned for the day. When proceedings re-convened on a new date the learner did not return to enable the applicant to complete the cross examination. I was informed by the respondent’s representative that the learner had refused to return. Subsequently he was subpoenaed by the applicant to appear on 24 January 2020 and he once again did not arrive. Proceedings were in any event aborted as explained in my introduction.
Applicants Case
25. Mr Abrahams, the applicant, testified that he has been an educator at Princeton High School since 2005. He denied that he is guilty of any of the charges levelled against him. Learner A has a track record as a “chronic bunker” to the extent where he had to call his grandmother in and arrange for her to keep a record of his whereabouts in a notebook. Teachers were required to sign the book everyday to confirm his attendance at school.
26. He denied that he put any learner out of the class at any time. If learners are outside the class, it causes problems in the corridors and it interferes with other classes. Mr Frantz is an HOD, and he does not teach grade 8 – it therefore cannot be that Learner A attended his class for a week. If Mr Frantz did take him in it would have been because the learner was bunking class. He was never called in by the school principal. The principal would have called him in if a parent had complained.
27. Learner A has given a different version in this hearing as compared to his version at the disciplinary hearing. Learner B also gave a different version at the disciplinary hearing.
28. His main issue with the procedural aspect of his suspension is that the witnesses that testified at the hearing were not sworn in by the presiding officer.
EVALUATION
29. Section 138(1) of the Labour Relations Act 66 of 1995 as amended, provides that a commissioner may conduct an arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly , but must deal with the substantial merits of the dispute with the minimum of legal formalities. Section 138(2) provides that subject to the discretion of the commissioner as to the appropriate form of the proceedings, a party to a dispute may give evidence, call witnesses, question the witnesses of any other party, and address concluding arguments to the commissioner. It is trite though that whatever the form of the process, the rules of natural justice, essentially the audi alteram partem rule should not be avoided.
30. The Respondent bears the onus in this case to prove the allegations against the applicant on a balance of probabilities. In the light of the unique circumstances of these proceedings, the pre-mature termination of proceedings and the “incomplete” cross examination of the complainant, Learner A, it is appropriate to address these issues first and foremost. A litigant or a party to a dispute as in this case, has a right whether it be in terms of section 34 of the Constitution which guarantees a right to a fair public hearing or because of the audi alteram partem rule, to be afforded the right to cross examination of a witness called by the other party whose evidence is prejudicial or potentially prejudicial to him. Included in this right would be the right to be heard fully and for the merits of this dispute to be fully ventilated. Proceedings were terminated without the applicant having closed his case. I understand that he intended to call one minor learner to testify on his behalf on the day that proceedings were terminated.
31. Throughout these proceedings the applicant wilfully hindered me in the performance of my functions by interrupting proceedings; generally misbehaving; being disrespectful; making disparaging and insulting comments and refusing to follow my process direction. I felt threatened by his demeanour and his obvious anger towards me. As indicated in the Details of the Hearing, applicant was warned about the consequences of his behaviour. Yet he persisted. Section 142(9)(a) provides that a commissioner may make a finding that a party is in contempt of the Commission for reasons stipulated in section 142(8), which includes the type of behaviour displayed by the applicant. Section 142(b) provides that a commissioner may refer the finding, together with the record of the proceedings to the Labour Court for its decision on the finding. The provision is not peremptory. The use of the word “may” in this section implies that a commissioner has a discretion in this regard.
32. In deciding to determine this dispute on the evidence before me, I considered all the above factors. I also took into consideration the fact that the applicant had been sufficiently warned in my ruling dated 2 July 2019 that proceedings would be terminated and that this matter would be determined on the evidence to date should he continue to hinder the process. Effectively the applicant has been the architect of his own “misfortune” in this process. It cannot be right for the applicant to bring his dispute to this tribunal for determination but then refuse to subject himself to the terms of the process. It also bears mentioning that the applicant had intimidated Learner A by taking the South African Police to his home to deliver a subpoena. It is not the norm for subpoenas to be delivered with the assistance of the South African Police in this tribunal and more especially not to minor children. One can only imagine what a frightening experience this must have been for the minor child. Learner B also testified that the applicant had tried to intimidate him by calling his father and threatening to beat him up if he allowed his son to testify.
33. The principles of cross examination whether it be in a criminal trial or a civil one, are essentially the same. Most of the case law dealing with the issue of incomplete cross examination are of criminal cases. In the criminal trial S v Msimango and Another 2010 (1) SACR 544, the court referred to various tests that had been propounded in earlier cases in South Africa and elsewhere. These included factors such as:
• Whether or not there had been full cross examination;
• Whether the cross examination was perhaps complete on certain aspects but not on others.
• Whether a particular aspect had been fully cross-examined;
• Whether it was the cross-examiner’s intention to return to any particular aspect ;
• Whether evidence on a particular issue had been dealt with else where;
• The possible limitation of the right to cross examine; and
• Whether the witness is a single witness.
34. The tests propounded in this decision are suggestive of the fact that there is a discretion on whether or not to admit the evidence in question. In my view, Learner A was cross examined extensively and almost every aspect of his evidence was challenged. He was challenged about his habit of playing truant from school and he conceded that he had truanted lessons on many occasions, but he maintained that he was not truanting on the days in question.
35. He was also challenged about where he was seated at the time of the incident. Applicant’s version that learners were seated in alphabetical order at that time, was also put to him. He denied that they were seated in alphabetical order. This was corroborated by Learner B. He was challenged extensively about the version that he had testified to in the internal disciplinary hearing. In this regard, I do not have the benefit of the transcript of the disciplinary hearing. I pointed out to the applicant that in order to make a determination on possible contradictions I would have to have sight of the transcript, which he failed to provide. Applicant attempted to play excerpts from the recordings of the disciplinary hearing. This is not an ideal way to consider contradictions as evidence must be looked at in context and this can only be done by reading the whole transcript. It must also be borne in mind that the incident happened in 2015 and memory fades with the efflux of time. It is no surprise therefore that Learner A said that he cannot remember every detail of his testimony at the disciplinary hearing which took place in 2016. He did however say that he remembered testifying that someone had thrown paper at the teacher and that the teacher thought that it was him. He maintained that this did happen.
36. Both learners were consistent in their testimony that the applicant did not like Learner A. Applicant challenged Learner A on this by putting to him that they had only known each other a short while as he (Learner A) had only joined Princeton High in 2015. Learner agreed that he had joined Princeton High in that year, but he maintained that the Applicant did not like him. On the applicant’s own version, Learner A was a problem child in that he frequently played truant to the extent that he had to speak to his grandmother to monitor and check on his whereabouts. It is therefore indeed likely that the applicant did not like learner A.
37. Applicant also challenged Learner A’s version that he had grabbed him by his jacket collar when he allegedly threw him out. It was put to him that Learner B had testified that he had grabbed him by the shirt collar. This in my view is a minor contradiction. In fact, it points to overall consistency in their testimony that the applicant had indeed grabbed Learner A in and around the neck area. Given he applicant’s anger at the time it is likely that he also swore at Learner A in the process. Both learners testified that the applicant often used rude language.
38. It was also put to learner A that in 2015, their math class on a Monday was in the afternoon and not in the morning as he had testified. I have already alluded to the fact that memories fade with the efflux of time, more so with children. It is quite conceivable that the incident happened on another day of the week, or that it happened on a Monday but that he simply could not remember the time. This is not a fatal inconsistency and does not necessarily prove that the incident did not happen. All in all, both learners impressed me as witnesses despite minor inconsistencies in their testimony. The same cannot be said for the applicant. In fact, his demeanour in this process is consistent with his behaviour in the classroom as testified by the learners.
39. The applicant testified that Mr Frantz did sometimes take learner A to his class, but that this would be because he was truanting class. This to an extent lends credence to the learner’s version that Mr Frantz did indeed take learners to his class on the day of the incidence. While this does not have a direct bearing on the incident, it is of relevance in assessing the learner’s credibility.
FINDING
40. I find the applicant guilty of all the charges against him and of having contravened section 18 of the Employment of Educators Act of 1998 on account of having committed misconduct.
41. On the totality of the evidence it is my finding that the respondent’s version is the more likely version and that the respondent has discharged the onus to prove that the applicant did commit the offences against learner A. The employer must prove the facts on which it based its decision and this burden is discharged if its version is the more probable.
“the credibility of witnesses and the probability or improbability of what they say are not separate piecemeal enquiries. They are part of a single investigation where questions of demeanour and impression are measured against the context of witnesses where the importance of any discrepancies or contradictions are assessed and where a particular story is tested against the facts which cannot be disputed and against inherent improbabilities so that at the end of the day one can say with conviction the one version is more probable and should be accepted and that therefore the other version is false and must be rejected with safety”
42. The next issue to be decided is whether a punitive suspension, together with a final written warning was an appropriate sanction in the circumstances. Since it is a disciplinary sanction, it must be imposed for a fair reason in accordance with fair procedure. It is common cause that a disciplinary hearing was held. Applicant’s main concern with the hearing is that the witnesses were not sworn in by the presiding officer. The LRA does not stipulate the swearing in of witnesses to give effect to fair procedure. In fact, our courts have endorsed a more informal approach to internal disciplinary hearings as opposed to the criminal trial model in courts of law. The fundamental purpose of procedural requirement is to give the employee an opportunity to be heard and to defend himself. I am satisfied that the applicant was accorded this opportunity and that a fair procedure was followed by the respondent.
43. In determining the appropriateness of the sanction, I adopt the approach of the Constitutional Court in Sidumo v Rustenberg Platinum Mines LTD (2007) 28 ILJ 2405 (CC). I have also considered the CCMA Guidelines on Misconduct Arbitrations. While discipline is the prerogative of the employer, the employer must impose an appropriate sanction. An arbitrator must determine whether the sanction is fair or not. He/she is not required to defer to the decision of the employer.
44. What is required is that the arbitrator must consider all relevant circumstances and impose a fair sanction. Ultimately, the arbitrator’s sense of fairness is what must prevail and not the employer’s view. In judging the farness of a sanction an arbitrator must ultimately apply a moral or value judgement to the established facts and circumstances of the case. Determining whether an appropriate sanction was imposed involves three enquiries namely, an enquiry into the gravity of the offence/contravention; an enquiry into the consistency of application of the rule and sanction and an enquiry into factors that may justify a different sanction. Consideration must be given to the interests of both the employer ad the employee. The LRA promotes the concept of progressive discipline.
45. Corporal punishment in schools is banned in two different statutes:
The National Education Policy Act states:
“No person shall administer corporal punishment or subject a student to psychological or physical abuse at any educational institution.”
Th South African Schools Act states:
(1). No person may administer corporal punishment at a school to a learner.
(2). Any person who contravenes subsection (1 is guilty of an offence and liable on conviction to a sentence which could be imposed for assault.
In Christiaan Education South Africa v Minister of Education, in which the Constitutional Court upheld the prohibition of corporal punishment in our schools in the South African Schools Act, the court held that corporal punishment is a violation of the rights of the child to human dignity.
46. The Code of Professional Ethics for educators, published by the South African Council for Educators, which is binding on all educators makes it unethical for educators to use corporal punishment by stating that an educator must:
• Respect the dignity of learners.
• Strive to enable learners to develop a set of values consistent with the fundamental rights contained in the Constitution of South Africa;
• Exercise authority with compassion;
• Avoid any form of humiliation, and refrain from abuse
47. The applicant has clearly broken the laws of our country that have been endorsed by the highest court in the land; he has failed to uphold the Professional Code of Conduct for Educators and he has violated the rights of a child to dignity. This is serious misconduct for which the ultimate sanction of dismissal may very well have been warranted. That the employer chose instead to impose a lesser sanction is fair in the circumstances.
In the premises, I make the following award:
AWARD
48. The applicant’s claim of an unfair labour practice is dismissed.
49. I make no order as to costs.
ARBITRATOR
ELRC PANELIST
A.SINGH-BHOOPCHAND
Province: Western Cape
Applicant: ABRAHAMS S
Respondent: Department of Education Western Cape
Issue: Unfair Labour Practice - Suspension
Award Date: 2 March 2020
Arbitrator: Arthi Singh-Bhoopchand
Case No PSES282-18/19WC
In the matter between
ABRAHAMS S Applicant
and
DOE-WC Respondent
ARBITRATOR: Arthi Singh-Bhoopchand
HEARD: 1 December 2018; 7 February 2019; 12 March
2019; 27 June 2019; 24 January 2020
DELIVERED: 02 March 2020
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. This arbitration concerning an alleged unfair suspension and/or disciplinary action was convened for 1 December 2018, 7 February 2019, 12 March 2019, 27 June 2019 and 24 January 2020.
2. The applicant represented himself. The respondent was represented by Ms Matshaya, a labour relations official within the labour relations directorate of the respondent.
3. Two bundles of documents were handed in as evidence.
4. In accordance with the policy of the ELRC, the names of all the minor learners that testified during these proceedings are protected and their names are accordingly withheld. The minor learners were assisted by an intermediary during their testimony.
5. Throughout these proceedings the applicant displayed a consistent pattern of obstructive and disrespectful behaviour to the extent that I had to terminate proceedings on 27 June 2019 and 24 January 2019. After the aborted sitting on 27 June 2019 and after the applicant had been warned several times that his conduct was contemptuous, I issued a ruling dated 2 July 2019 in which I ruled as follows:
5.1 Applicant must accord the process its due respect and follow the process direction of the arbitrator.
5.2 Should the applicant fail to co-operate, proceedings will be terminated, and this matter will be determined on the evidence at hand to date.
6. The events that led to this ruling are contained in my written ruling and form part of the record and I therefore do not repeat them.
7. I also mention that after the sitting of 12 March 2019, the applicant made a written application for my recusal. The respondent opposed the application. The application was dismissed, and I issued a ruling in this regard on 30 April 2019. The papers and my written ruling also form part of the record and I do not repeat those details in this award. It was brought to my attention that the applicant had also applied for the recusal of the presiding officer of the internal disciplinary hearing and that that application was also refused.
8. When the hearing reconvened on 24 January 2020 at 10h00, it became immediately apparent to me from the applicant’s conduct, which entailed inter alia, disparaging and insulting comments about me, that he would once again not co-operate. As on previous occasions, I made this conclusion not only from what he was saying but also from his demeanour. I observed from his demeanour that he was angry, his facial expression and his general manner and attitude towards me. As he had been sufficiently warned of the consequence of such behaviour in my ruling dated 2 July 2019, I terminated the proceedings.
9. The complainant in this matter, a minor learner at the time, testified on 7 February 2019. He completed his evidence in chief and he was cross examined extensively thereafter, to the extent that he became distraught and he broke down in tears. Proceedings had to be adjourned. The applicant indicated that he had not concluded his cross examination. Although I was of the view that the complainant’s evidence had been sufficiently challenged, I nevertheless informed the Respondent to arrange for the learner to return when proceedings re-convened at a later date.
10. Proceedings re-convened on 12 March 2019. I was informed by the respondent that the learner had indicated that he did not wish to return to the process and the respondent closed its case. In the circumstances, I directed the applicant to proceed with his case. His evidence was part- heard and proceedings adjourned. The applicant informed me that he intended to subpoena the complainant to testify when proceedings resumed. Applicant concluded his testimony on 2 September 2019. Proceedings adjourned and reconvened on 24 January 2020.
11. I was informed that the complainant was not present despite having been subpoenaed by the applicant. Ms Matshaya informed me that Learner A’s (the complainant’s) grandmother had arrived at the venue to say that the learner would not return to testify. She also said that the applicant had arrived at their home with members of the South African Police to serve the subpoena. The applicant was present when this information was conveyed to me and he did not dispute this. I have already stated that due to applicant’s conduct, proceedings were terminated.
12. This award is based on the evidence led at the sittings on 1 December 2018, 7 February 2019, 12 March 2019 and 2 September 2020.
13. I requested an extension of time for the submission of this award.
BACKGROUND
14. The applicant is employed as an educator at Princeton High School. He faced the following charges at an internal disciplinary hearing:
CHARGE 1
It is alleged that you are guilty of misconduct in terms of section 18(l)(r) of the Employment of Educators Act 76/1998 (“the Act”)in that around the 1st and 2nd term of 2015 you assaulted Learner A, a learner at Princeton High School , by
• Pulling him from the chair by his collar; and /or
• Grabbing him by the arm; and/or
• Throwing him out of the class; and /or
• Throwing his bag out of the class
CHARGE 2
It is alleged that you are guilty of misconduct in terms of Section 18 (1)(t) of the
Act in that around 1st and 2nd term, you displayed disrespect towards others in
the workplace or demonstrated abusive insolent behaviour, by uttering words to
Learner A, with more or less the following meaning:
• “you must f…..n stay there;” and /or
• “you f…n don’t listen”
CHARGE 3
It is alleged that you are guilty of misconduct in terms of Section 18(1) (a) of
the Act in that around 1st and 2nd term, you failed to comply with section
29(1)(a) of the Constitution of South Africa Act 108 of 1996 in that you deprived
a grade 8 learner, a learner of Princeton High School from his right to
education by putting him out of the classroom for a period of one week.
15. The applicant was found guilty of all three charges at the conclusion of an internal disciplinary hearing which was held over a number of days. Applicant was represented by his trade union SADTU throughout the process. On the recommendation of the presiding officer, a sanction of a three- month suspension without pay coupled with a Final Written Warning was imposed on the applicant.
16. Applicant appealed to the Minister against the guilty finding and the sanction, but his appeal was dismissed, and the sanction was upheld.
17. Applicant disputes both the substantive and the procedural aspects of the disciplinary action taken against him.
SUMMARY OF EVIDENCE
Respondents Case
18. Two learners testified, namely the complainant, learner A, and a second learner who shall be referred to as learner B. Learner B testified first. He testified that he is currently in grade 11, but that he was in grade 8 at the time of the incident involving learner A which happened in 2015. Applicant was their math teacher at the time. Applicant always had his favourites and he usually made them sit at the front of the class. Learner A was seated towards the back, but on that day, he went to sit in front. Applicant had a problem with that, and he told learner A that he could not sit in front. Learner A said that he could not hear from the back and he therefore refused to go and sit in the back. Applicant got angry and became “a bit physical”. He took learner A by the jacket and put him outside the class. After Applicant “threw” learner A out of the class he went to learner A’s desk and took his bag and threw it on the floor. Learner A wanted to come back into the class, but Applicant would not let him come back. He swore at learner A and told him that he was a nuisance. He also said that learner A should stay out of his class for the whole week and that he should bring his mother to school. Learner A thus missed four days of maths class. He came to school every day and attended other classes, but he did not attend applicant’s maths class for the rest of the week. Applicant did not like learner A -he had his favourites. Applicant often used bad language and learners were afraid of him.
19. He also stated that applicant had called his father and threatened to beat him up if he allowed him to testify against him.
20. During cross examination it was put to him that at the time of the alleged incident, learners were seated in alphabetical order. His response was that at the time of the incident they were not seated in alphabetical order.
21. Learner A testified that the incident took place on a Monday during 2015 in Mr Abrahams maths class at around 8h15- 8h45. Applicant wanted him to sit at the back of the class. However, he wanted to sit in the front of the class as he could not hear properly at the back of the class. When the applicant instructed him to go and sit at the back, he refused. Applicant became angry and took his bag and books and threw them out of the class. He then pulled him by his shirt collar and threw him out of the class. Applicant swore at him and said that he should stay out of his class for a week and that he should bring his grandmother to see him. He then sent someone to call Mr Frantz. Mr Frantz is also a maths teacher and he was in the class next door. Mr Frantz came, and he told Mr Frantz that applicant threw him out of the class. He asked Mr Frantz if he could attend his class for that week and he agreed. He spent the rest of week’s math class with Mr Frantz. He attended all his other classes as per normal. His grandmother came to school on Wednesday. Every time she asked to see Mr Abrahams, he said that he was busy. His grandmother spoke to Mr Isaacs, the school principal. The following week he was allowed back in class and he was allowed to sit in front. The class was never seated in alphabetical order.
22. During cross examination it was put to him that he had testified at the disciplinary hearing that someone threw paper at the teacher. He agreed and said that someone did throw paper at the teacher and applicant thought that it was him. Generally, whenever someone threw something at the teacher, applicant would think that it was him.
23. It was also put to him that at the disciplinary hearing he had testified that applicant had asked him to leave the class and he left. He was asked why he now testified to a different version. His response was that he could not remember very well as all of this happened in 2015. He conceded that he did truant school sometimes but that he did not truant math class during that week. He maintained that applicant threw him out of class.
24. Applicant continued to challenge Learner A’s evidence in chief to the point where the learner broke down in tears. Proceedings had to be adjourned for the day. When proceedings re-convened on a new date the learner did not return to enable the applicant to complete the cross examination. I was informed by the respondent’s representative that the learner had refused to return. Subsequently he was subpoenaed by the applicant to appear on 24 January 2020 and he once again did not arrive. Proceedings were in any event aborted as explained in my introduction.
Applicants Case
25. Mr Abrahams, the applicant, testified that he has been an educator at Princeton High School since 2005. He denied that he is guilty of any of the charges levelled against him. Learner A has a track record as a “chronic bunker” to the extent where he had to call his grandmother in and arrange for her to keep a record of his whereabouts in a notebook. Teachers were required to sign the book everyday to confirm his attendance at school.
26. He denied that he put any learner out of the class at any time. If learners are outside the class, it causes problems in the corridors and it interferes with other classes. Mr Frantz is an HOD, and he does not teach grade 8 – it therefore cannot be that Learner A attended his class for a week. If Mr Frantz did take him in it would have been because the learner was bunking class. He was never called in by the school principal. The principal would have called him in if a parent had complained.
27. Learner A has given a different version in this hearing as compared to his version at the disciplinary hearing. Learner B also gave a different version at the disciplinary hearing.
28. His main issue with the procedural aspect of his suspension is that the witnesses that testified at the hearing were not sworn in by the presiding officer.
EVALUATION
29. Section 138(1) of the Labour Relations Act 66 of 1995 as amended, provides that a commissioner may conduct an arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly , but must deal with the substantial merits of the dispute with the minimum of legal formalities. Section 138(2) provides that subject to the discretion of the commissioner as to the appropriate form of the proceedings, a party to a dispute may give evidence, call witnesses, question the witnesses of any other party, and address concluding arguments to the commissioner. It is trite though that whatever the form of the process, the rules of natural justice, essentially the audi alteram partem rule should not be avoided.
30. The Respondent bears the onus in this case to prove the allegations against the applicant on a balance of probabilities. In the light of the unique circumstances of these proceedings, the pre-mature termination of proceedings and the “incomplete” cross examination of the complainant, Learner A, it is appropriate to address these issues first and foremost. A litigant or a party to a dispute as in this case, has a right whether it be in terms of section 34 of the Constitution which guarantees a right to a fair public hearing or because of the audi alteram partem rule, to be afforded the right to cross examination of a witness called by the other party whose evidence is prejudicial or potentially prejudicial to him. Included in this right would be the right to be heard fully and for the merits of this dispute to be fully ventilated. Proceedings were terminated without the applicant having closed his case. I understand that he intended to call one minor learner to testify on his behalf on the day that proceedings were terminated.
31. Throughout these proceedings the applicant wilfully hindered me in the performance of my functions by interrupting proceedings; generally misbehaving; being disrespectful; making disparaging and insulting comments and refusing to follow my process direction. I felt threatened by his demeanour and his obvious anger towards me. As indicated in the Details of the Hearing, applicant was warned about the consequences of his behaviour. Yet he persisted. Section 142(9)(a) provides that a commissioner may make a finding that a party is in contempt of the Commission for reasons stipulated in section 142(8), which includes the type of behaviour displayed by the applicant. Section 142(b) provides that a commissioner may refer the finding, together with the record of the proceedings to the Labour Court for its decision on the finding. The provision is not peremptory. The use of the word “may” in this section implies that a commissioner has a discretion in this regard.
32. In deciding to determine this dispute on the evidence before me, I considered all the above factors. I also took into consideration the fact that the applicant had been sufficiently warned in my ruling dated 2 July 2019 that proceedings would be terminated and that this matter would be determined on the evidence to date should he continue to hinder the process. Effectively the applicant has been the architect of his own “misfortune” in this process. It cannot be right for the applicant to bring his dispute to this tribunal for determination but then refuse to subject himself to the terms of the process. It also bears mentioning that the applicant had intimidated Learner A by taking the South African Police to his home to deliver a subpoena. It is not the norm for subpoenas to be delivered with the assistance of the South African Police in this tribunal and more especially not to minor children. One can only imagine what a frightening experience this must have been for the minor child. Learner B also testified that the applicant had tried to intimidate him by calling his father and threatening to beat him up if he allowed his son to testify.
33. The principles of cross examination whether it be in a criminal trial or a civil one, are essentially the same. Most of the case law dealing with the issue of incomplete cross examination are of criminal cases. In the criminal trial S v Msimango and Another 2010 (1) SACR 544, the court referred to various tests that had been propounded in earlier cases in South Africa and elsewhere. These included factors such as:
• Whether or not there had been full cross examination;
• Whether the cross examination was perhaps complete on certain aspects but not on others.
• Whether a particular aspect had been fully cross-examined;
• Whether it was the cross-examiner’s intention to return to any particular aspect ;
• Whether evidence on a particular issue had been dealt with else where;
• The possible limitation of the right to cross examine; and
• Whether the witness is a single witness.
34. The tests propounded in this decision are suggestive of the fact that there is a discretion on whether or not to admit the evidence in question. In my view, Learner A was cross examined extensively and almost every aspect of his evidence was challenged. He was challenged about his habit of playing truant from school and he conceded that he had truanted lessons on many occasions, but he maintained that he was not truanting on the days in question.
35. He was also challenged about where he was seated at the time of the incident. Applicant’s version that learners were seated in alphabetical order at that time, was also put to him. He denied that they were seated in alphabetical order. This was corroborated by Learner B. He was challenged extensively about the version that he had testified to in the internal disciplinary hearing. In this regard, I do not have the benefit of the transcript of the disciplinary hearing. I pointed out to the applicant that in order to make a determination on possible contradictions I would have to have sight of the transcript, which he failed to provide. Applicant attempted to play excerpts from the recordings of the disciplinary hearing. This is not an ideal way to consider contradictions as evidence must be looked at in context and this can only be done by reading the whole transcript. It must also be borne in mind that the incident happened in 2015 and memory fades with the efflux of time. It is no surprise therefore that Learner A said that he cannot remember every detail of his testimony at the disciplinary hearing which took place in 2016. He did however say that he remembered testifying that someone had thrown paper at the teacher and that the teacher thought that it was him. He maintained that this did happen.
36. Both learners were consistent in their testimony that the applicant did not like Learner A. Applicant challenged Learner A on this by putting to him that they had only known each other a short while as he (Learner A) had only joined Princeton High in 2015. Learner agreed that he had joined Princeton High in that year, but he maintained that the Applicant did not like him. On the applicant’s own version, Learner A was a problem child in that he frequently played truant to the extent that he had to speak to his grandmother to monitor and check on his whereabouts. It is therefore indeed likely that the applicant did not like learner A.
37. Applicant also challenged Learner A’s version that he had grabbed him by his jacket collar when he allegedly threw him out. It was put to him that Learner B had testified that he had grabbed him by the shirt collar. This in my view is a minor contradiction. In fact, it points to overall consistency in their testimony that the applicant had indeed grabbed Learner A in and around the neck area. Given he applicant’s anger at the time it is likely that he also swore at Learner A in the process. Both learners testified that the applicant often used rude language.
38. It was also put to learner A that in 2015, their math class on a Monday was in the afternoon and not in the morning as he had testified. I have already alluded to the fact that memories fade with the efflux of time, more so with children. It is quite conceivable that the incident happened on another day of the week, or that it happened on a Monday but that he simply could not remember the time. This is not a fatal inconsistency and does not necessarily prove that the incident did not happen. All in all, both learners impressed me as witnesses despite minor inconsistencies in their testimony. The same cannot be said for the applicant. In fact, his demeanour in this process is consistent with his behaviour in the classroom as testified by the learners.
39. The applicant testified that Mr Frantz did sometimes take learner A to his class, but that this would be because he was truanting class. This to an extent lends credence to the learner’s version that Mr Frantz did indeed take learners to his class on the day of the incidence. While this does not have a direct bearing on the incident, it is of relevance in assessing the learner’s credibility.
FINDING
40. I find the applicant guilty of all the charges against him and of having contravened section 18 of the Employment of Educators Act of 1998 on account of having committed misconduct.
41. On the totality of the evidence it is my finding that the respondent’s version is the more likely version and that the respondent has discharged the onus to prove that the applicant did commit the offences against learner A. The employer must prove the facts on which it based its decision and this burden is discharged if its version is the more probable.
“the credibility of witnesses and the probability or improbability of what they say are not separate piecemeal enquiries. They are part of a single investigation where questions of demeanour and impression are measured against the context of witnesses where the importance of any discrepancies or contradictions are assessed and where a particular story is tested against the facts which cannot be disputed and against inherent improbabilities so that at the end of the day one can say with conviction the one version is more probable and should be accepted and that therefore the other version is false and must be rejected with safety”
42. The next issue to be decided is whether a punitive suspension, together with a final written warning was an appropriate sanction in the circumstances. Since it is a disciplinary sanction, it must be imposed for a fair reason in accordance with fair procedure. It is common cause that a disciplinary hearing was held. Applicant’s main concern with the hearing is that the witnesses were not sworn in by the presiding officer. The LRA does not stipulate the swearing in of witnesses to give effect to fair procedure. In fact, our courts have endorsed a more informal approach to internal disciplinary hearings as opposed to the criminal trial model in courts of law. The fundamental purpose of procedural requirement is to give the employee an opportunity to be heard and to defend himself. I am satisfied that the applicant was accorded this opportunity and that a fair procedure was followed by the respondent.
43. In determining the appropriateness of the sanction, I adopt the approach of the Constitutional Court in Sidumo v Rustenberg Platinum Mines LTD (2007) 28 ILJ 2405 (CC). I have also considered the CCMA Guidelines on Misconduct Arbitrations. While discipline is the prerogative of the employer, the employer must impose an appropriate sanction. An arbitrator must determine whether the sanction is fair or not. He/she is not required to defer to the decision of the employer.
44. What is required is that the arbitrator must consider all relevant circumstances and impose a fair sanction. Ultimately, the arbitrator’s sense of fairness is what must prevail and not the employer’s view. In judging the farness of a sanction an arbitrator must ultimately apply a moral or value judgement to the established facts and circumstances of the case. Determining whether an appropriate sanction was imposed involves three enquiries namely, an enquiry into the gravity of the offence/contravention; an enquiry into the consistency of application of the rule and sanction and an enquiry into factors that may justify a different sanction. Consideration must be given to the interests of both the employer ad the employee. The LRA promotes the concept of progressive discipline.
45. Corporal punishment in schools is banned in two different statutes:
The National Education Policy Act states:
“No person shall administer corporal punishment or subject a student to psychological or physical abuse at any educational institution.”
Th South African Schools Act states:
(1). No person may administer corporal punishment at a school to a learner.
(2). Any person who contravenes subsection (1 is guilty of an offence and liable on conviction to a sentence which could be imposed for assault.
In Christiaan Education South Africa v Minister of Education, in which the Constitutional Court upheld the prohibition of corporal punishment in our schools in the South African Schools Act, the court held that corporal punishment is a violation of the rights of the child to human dignity.
46. The Code of Professional Ethics for educators, published by the South African Council for Educators, which is binding on all educators makes it unethical for educators to use corporal punishment by stating that an educator must:
• Respect the dignity of learners.
• Strive to enable learners to develop a set of values consistent with the fundamental rights contained in the Constitution of South Africa;
• Exercise authority with compassion;
• Avoid any form of humiliation, and refrain from abuse
47. The applicant has clearly broken the laws of our country that have been endorsed by the highest court in the land; he has failed to uphold the Professional Code of Conduct for Educators and he has violated the rights of a child to dignity. This is serious misconduct for which the ultimate sanction of dismissal may very well have been warranted. That the employer chose instead to impose a lesser sanction is fair in the circumstances.
In the premises, I make the following award:
AWARD
48. The applicant’s claim of an unfair labour practice is dismissed.
49. I make no order as to costs.
ARBITRATOR
ELRC PANELIST
A.SINGH-BHOOPCHAND