Case Number: PSES 1012-18/19KZN
Applicant: SIBUSISO FORTUNE JELE
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Dismissal - Misconduct
Venue: Regional Offices of the ELRC at 149 Cowey Road, Morningside.
Award Date: 26 November 2020
Arbitrator: Karen Charles
Commissioner: Karen Charles
Case No.: PSES 1012-18/19KZN
Date of Award: 26 November 2020
In the ARBITRATION between:
SIBUSISO FORTUNE JELE Applicant
DEPARMENT OF BASIC EDUCATION (KWAZULU NATAL) Respondent
Union/Applicant’s representative: COLLEEN CHEWPERSAD
PREGEN GOVINDSAMY AND ASSOCIATES
Union/Applicant’s address: SUITE 1, 97 INNES ROAD
Respondent’s representative: ITUMELENG MAKHOOL
DETAILS OF THE HEARING AND REPRESENTATION
1. This arbitration was heard on 25 November 2020 at the Regional Offices of the ELRC at 149 Cowey Road, Morningside. The applicant, Sibusiso Fortune Jele was represented by his attorney, Ms Chewpersad. An application for legal representation had been made and granted on a previous occasion. The respondent, Department of Education: Kwazulu Natal was represented by Mr Makhool, an Employee Relations official.
ISSUE TO BE DECIDED
2. Whether the respondent had unfairly dismissed the applicant?
BACKGROUND TO THE MATTER
3. The applicant had referred the matter to the ELRC for conciliation on 18 March 2019, after the confirmation of his dismissal in an appeal hearing and outcome (on 5 March 2019). The conciliation held on 26 April 2019 had proved unsuccessful and a certificate was issued.
4. The matter was then referred to arbitration and was set down on various occasions, 25 June 2019, 12 September 2019 and then finally on 5 February 2020. On that last occasion, the matter had been postponed because Mr Makhool had difficulty procuring his witness’s attendance at the proceedings. On this date, 25 November 2020, the respondent explained that his witness was, yet again, not present. He set out in detail all his attempts to ensure her attendance but to no avail.
5. He elected to proceed with his case.
6. Mr Makhool opened and then closed his case without adducing any evidence.
7. Sibusiso Fortune Jele testified that he had been employed as a principal within the respondent at Siphesihle Secondary School in the Verulam district.
8. He had been employed by the respondent since 1996 in various positions until his appointment as principal. Which was a level 4 post. He had been dismissed on the 1 October 2018. At the date of his dismissal he earned R47 148, 47.
9. He had been dismissed after a disciplinary enquiry. The charges composed against him were as set out at Exhibit A: 39, namely a sexual assault on a grade 8 learner and of grooming a minor learner for his sexual gratification.
10. He denied the charges and sought reinstatement for what he believed was an unfair dismissal. When cross-examination, when asked by Mr Makhool why he had assisted the indigent learner personally, he replied it was because he was a leader and it was his responsibility to look after those not so fortunate within the community.
11. There had been a newspaper article about the learner and her siblings having been orphaned and being poor and unable to buy food. He would visit her house with friends, members of the SGB or a social worker. On one occasion he had gone alone to give them assistance.
12. On a previous occasion, just before 27 April 2018, the learner had “lost” the money he had given her to purchase food and he had accused her of stealing the money. She had been very angry. Notwithstanding this accusation, he continued to help her family.
13. On the day in question, he had taken her to his house to retrieve some money from his wallet (which he had forgotten at home) so that he could purchase food for her family. He had left his wallet at home. He had hurried to check on the school before going to collect her. There had been previous thefts at the school, so he had wanted to determine whether the school property, such as the chairs, had been stolen or not.
14. He denied that he had groomed the learner.
15. On re-examination, he explained that he had communicated and met with her foster parent before he had approached the minor or her siblings. The guardian had given him permission to assist the family and the learner.
16. He denied that he had ever intended to groom her or her family.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
17. The parties concur that the applicant was dismissed after a disciplinary enquiry (paragraph 4 of the pre arbitration minute).
18. It is trite law that the burden of proof shifts to the respondent to proof the fairness of the dismissal and to do so on a balance of probabilities (Early Bird Farms (Pty) Ltd v Mlambo (1997) 5 BLLR 541 (LAC), endorsed in the much celebrated case of Avril Elizabeth Home for the Mentally Handicapped v CCMA & others (2006) 15 LC 1.11.4,  9 BLLR 833 (LC).
19. The respondent did not offer up any evidence in support of its case. It did not substantiate the allegations preferred against the applicant with any testimony at all. All that remained was the testimony of the applicant who denied the charges and tendered an acceptable explanation for his contact with the learner and her presence in his home.
20. In the absence of any evidence to the contrary, and any glaring inconsistencies in the applicant’s version, I must accept his narrative as plausible and more probable than the absence of a version from the respondent.
21. Accordingly, I find that the respondent has failed to discharge the onus of proving the fairness of the dismissal.
22. The applicant has sought retrospective reinstatement, an order I am competent to order (section 194 of the Labour Relations Act No 66 of 1995, as amended).
23. I am unable to quantify the retrospective remuneration in all its completeness of figure because neither the applicant nor the respondent was aware of the notch increases the applicant would have been awarded during the period from 1 March 2019 to the date of this award.
24. It is just and equitable that the following award be made:
25. The applicant, Sibusiso Fortune Jele’s dismissal is unfair;
26. The respondent, Department of Education: Kwazulu Nata is ordered to :
33.1 to reinstate the applicant, Sibusiso Fortune Jele, on the same terms and conditions that governed his employment prior to his dismissal on 1 March 2019;
33.2 to pay to the applicant back-pay in an amount equivalent of TWENTY (21) months of his monthly remuneration, (with all the increases and entitlements and contributions that would have accrued to him at a level 4 post), this being his retrospective remuneration for the period from the date of dismissal to date of this award;
33.3 The back-pay as referred to in paragraph 33.2 is to be paid to the applicant by no later than 29 January 2021.