Case Number: PSES 479 – 19/20 FS
Province: Free State
Applicant: Setso Petrus Tseki
Respondent: Department of Education Free State
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 3 March 2020
Arbitrator: Minette van der Merwe
Arbitrator: Minette van der Merwe
Case Reference No.: PSES 479 – 19/20 FS
Date of award: 03 March 2020
In the arbitration between:
Setso Petrus Tseki APPLICANT
Department of Education – Free State RESPONDENT
Applicant’s representative: Mr E Wepener (De Wet Wepener Attorneys)
Telephone: (057) 050 0492
E-mail: firstname.lastname@example.org / email@example.com
Respondent’s representative: ABSENT
Telephone: (051) 404 4414
E-mail: firstname.lastname@example.org / V.Gubuza@fseducation.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. The dispute, referred to the ELRC (Education Labour Relation Council) in terms of section 186(2)(b) of the Labour Relations Act, 66 of 1995, as amended (“LRA”), was heard and finalized on 10 February 2020 at the Respondent’s offices in Welkom.
2. The Applicant was present and represented by Mr E Wepener, attorney.
3. The arbitration continued in the absence of the Respondent. The matter was scheduled for 10h00, and at 10h15 I proceeded with the arbitration, as allowed for by section 138(5)(b)(i) of the LRA.
4. The Respondent was aware of proceedings, as Mr Gubuza had arrived at 10h25. As I had already been on record at the time Mr Gebuza, the Respondent’s representative, had arrived, I duly informed him that the arbitration had already commenced, and that he could wait outside the venue until the finalization of the default arbitration.
5. It is therefore clear that the Respondent was duly informed of the arbitration, but elected not to arrive in time, or within the reasonable grace period of 15 minutes.
6. Interpretation was not required. The proceedings were recorded mechanically, and copious notes were taken.
BACKGROUND TO THE DISPUTE
7. The matter was scheduled for arbitration in terms of section 186(2)(b) of the LRA as a dispute related to disciplinary action short of dismissal, specifically a final written warning.
8. The Applicant is an Educator, employed in terms of the Employment of Educators Act, 76 of 1998, as amended (the “EEA”), and held a position at Mophate Secondary School in Bothaville. He was still employed.
9. The Applicant was issued with a final written warning, dated 17 January 2019, as a result of a disciplinary hearing, in terms of section 18(1) of the EEA. The final written warning was appealed, and the appeal was dismissed on 29 March 2019.
ISSUE(S) TO BE DECIDED
10. I had to determine whether the final written warning issued to the Applicant was justified, reasonable and valid.
11. The Applicant sought as remedy the setting aside of the final written warning.
SURVEY OF EVICENCE AND ARGUMENTS
12. Documentary evidence, titled “A”, was submitted into evidence by the Applicant.
13. The Applicant did not call additional witnesses in support of his case.
14. The applicant’s testimony, made under oath, is fully captured on the record of proceedings. I therefore do not deem it necessary to repeat it in this award. Only a brief summary is reflected herein.
Evidence from the Applicant:
The Applicant, Setso Petrus Tseki, testified under oath as follows:
15. The incident that led to a disciplinary investigation against him, happened before classes commenced one morning. School started at 07h15 and Learners had to be seated by 07h30. He made his way to his classroom, and as he was about to enter through the door, he had a collision with one of the Learners, Tumelo Mohomane (“Tumelo”), who was running out of the classroom at that same moment. He told Tumelo to clean his shoes which was stepped on by Tumelo during the collision. Tumelo cleaned his shoes and exited the classroom. Later during the morning, he met with the Tumelo and his father, and learned that Tumelo had accused him of slapping him (the Learner). He explained what had happened to the father, and he understood the event as an accident, and that no slapping took place. He considered the matter to have been resolved, as Tumelo had conceded that he was not truthful in his version of what happened, and he received an apology.
16. The other Learners in the classroom did not show much of a response when he collided with Tumelo. A vast number of the Learners could have witnessed the collision. During his disciplinary hearing, one of the Learners who was called to testify by the Respondent, confirmed that no slapping took place, and that it was a mere collision.
17. Tumelo was ultimately removed from his class due to complaints from the other Learners about his (the Learner’s) conduct in class.
18. As a result of the disciplinary hearing, he received a final written warning and a fine of R 25 000.00. The fine was then reduced to R 2 500.00, but the final written warning was implemented.
19. He did not slap Tumelo, and it was an accidental collision.
Evidence from the Respondent:
20. No evidence was tendered by or on behalf of the Respondent due to its absence from the proceedings.
ANALYSIS OF EVIDENCE AND ARGUMENTS
21. The onus to prove that an unfair labour practice was committed, was on the Applicant.
22. The LRA defines an unfair labour practice, in section 186(2)(b), as “the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee”.
23. The Applicant was a credible and reliable witness. He did not act emotionally, did not contradict himself and admitted to his part in the incident.
24. In the absence of a version to the contrary, the Applicant’s version could not be tested. I asked a few questions for clarity, and the Applicant responded without hesitation.
25. The Applicant’s evidence was that no slapping took place during the incident in question, and that he and Tumelo merely collided. The incident was visible to a number of Learners in the classroom, and they did not show a reaction to the incident, which supported the version that Tumelo was not slapped. His evidence was that the meeting with Tumelo and his father resulted in an apology from Tumelo and a concession that he was not truthful about what had happened. He further testified that, during the disciplinary hearing, one of the Learners called by the Respondent to testify stated that no slapping took place; just a collision.
26. The version proffered by the Applicant is plausible and probable. It would not be the first time that a Learner exaggerates an incident, and plays fast and loose with the truth.
27. There was no evidence that convinced me that the misconduct the Applicant was charged for, was committed. No video footage, statements or photographs were available to support the Respondent’s case.
28. In the absence of evidence to support the allegation that the Applicant had slapped the Learner in question, it cannot be held that the Applicant was guilty. As such, the final written warning issued to the Applicant was not reasonably justified.
29. It then follows that the final written warning in its totality be set aside with specific inclusion of the fine the Applicant was ordered to pay. In the event that the fine has not yet been paid by the Applicant, the fine is also set aside. In the event that the fine had already been paid by the Applicant to the Respondent, wholly or partially, this fine must be refunded to the Applicant within 14 (fourteen) days of receipt of this award.
30. In determining the appropriate relief, I am guided by the Applicant’s wishes in this regard. It is therefore appropriate to order that the final written warning that forms the subject matter of this dispute, be wholly set aside.
31. The Applicant, Setso Petrus Tseki was able to prove that an unfair labour practice was committed by the Respondent, Department of Education – Free State, in that the final written warning issued to him in terms of section 18(1) of the Employment of Educators Act, was unjustified and unreasonable.
32. The final written warning and fine of R 2 500.00 issued by the respondent, the Department of Education Free State, against the applicant, Setso Petrus Tseki, is set aside with immediate effect.
33. No order is made as to cost.
Minette van der Merwe