PSES754-18/19KZN
PSES754-18/19KZN
Award Date:
1 December 2020
Case Number: PSES754-18/19KZN
Province: KwaZulu-Natal
Applicant: SIMELANE EXCELLENCE BHA
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Department of Education - KwaZulu- Natal, Amajuba District, 113 Panorama Street, Newcastle.
Award Date: 1 December 2020
Arbitrator: Scelo V Mkhize
IN THE ELRC ARBITRATION
BETWEEN:
SIMELANE EXCELLENCE BHA the Applicant
and
DEPARTMENT OF BASIC EDUCATION – KWAZULU-NATAL the Respondent
ARBITRATION AWARD
Case Number: PSES754-18/19KZN
Last date of arbitration: 21 October 2020
Date of award: 01/12/2020
Arbitrator: Scelo V Mkhize
Education Labour Relations Council
ELRC Building, 261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.z
DETAILS OF THE HEARING
1. The matter was enrolled before me for arbitration proceedings in terms of section 191(5) (a) (iv) of the Labour Relations Act 66 of 1995 as amended (The Act). The arbitration was held on various dates being the 09 and 10 May 2019, 03 and 04 July 2019, 10 September 2019 and it was concluded on 16/01/2020. The arbitration was held at the Department of Education - KwaZulu- Natal, Amajuba District, 113 Panorama Street, Newcastle.
2. The Applicant, Mr Simelane, appeared in person and was represented by Mr K M Chetty from K M Chetty Attorneys. The Respondent, on the other hand, was represented by Ms J Dumisa an official from the Department of Education, KwaZulu-Natal.
3. The arbitration was held in English and it was mechanically recorded.
ISSUE TO BE DECIDED
4. In these proceedings, I am initially required to decide whether the Applicant was demoted by the Respondent within the ambit of section 186 (2) (a) of the Act. If so, whether the demotion constituted an unfair labour practice envisaged by section 186 (2) (a) of the Act.
BACKGROUND
5. The Applicant is Excellence Bha Simelane who was employed by the Respondent as the principal at Ncandu Combined School as an educator. The Respondent is the Department of Education KwaZulu Natal, a governmental department dully fulfilling its mandate in terms of the Constitution and in terms of the South African Schools Act 84 of 1996, with its provincial offices at 247 Burger street, Pietermaritzburg, KwaZulu Natal.
6. The Applicant referred a dispute for unfair labour practice related to demotion in terms section 186 (2) (a) of the Labour Relations Act 66 of 1995 to this honorable council claiming that he was unfairly demoted from his position as a principal to the position of level one educator and that he was given a fine of R10000,00 from which R9000,00 was suspended for three years and R1000,00 was payable immediately. The demotion emanated from the following charges of misconduct which were levelled against him:
• That on or about 14/03/2014, or near Ncandu Combined School, while on duty, he conducted yourself in an improper disgraceful or unacceptable manner in that he kissed a leaner by the Name of Siphesihle Moteka and there by contravened section 18 (1) (q) of the Employment of Educators Act.
• That on or about March 2014 at or near Ncandu Combined School he displayed disrespect towards staff members and leaners, in that he insulted parents by calling them dogs whilst addressing leaners during assembly and thereby contravening section 18(1) (t) of the Employment of educators Act.
7. He was found guilty on both charges and he was demoted as mentioned in paragraph 6 above. He referred a dispute to this council alleging an unfair labour practice. The matter remained unresolved at conciliation and it was referred to arbitration. The arbitration was concluded on 16 January 2020, hence this arbitration award.
8. The basis upon which the Applicant claims an unfair labour practice was that he did not commit the misconducts mentioned in paragraph 6 above. He contended that there was a conspiracy to get him out of the school.
9. The Respondent, on the other hand, denied that it committed an unfair labour practice against the Applicant. It contended that the Applicant was demoted after he had been found guilty of the charges mentioned in paragraph 6 above and after a properly constituted disciplinary enquiry.
COMMON CAUSE FACTS
10. The following facts were common cause between the parties: That the Applicant is employed by the Respondent at Ncandu Combined School; that he was employed as a principal; that on 09 December 2014, he was demoted from being a principal to the position of a deputy principal after he had been found guilty of the charges mentioned paragraph 6 above and that in addition to the demotion, he was given a written warning and also given a fine of R1000,00. It was also common cause that the Applicant was not challenging any procedural defect.
ISSUES IN DISPUTE
11. The following issues were in dispute between the parties: Whether the Applicant’s demotion was substantively unfair, in particular, whether the Applicant committed the charges in paragraph 6 above and whether there was any conspiracy to get rid of the Applicant out of the school.
SURVEY OF EVIDENCE AND ARGUMENTS
Applicant’s case
First witness
12. The Applicant, Excellent Bha Simelane, was the first witness to testify in support of his case and he testified as follows:
13. He is 54 years old and married. He was employed as a principal at Ncandu Combined School. He entered the education profession on 15 January 1991.
14. He denied that he kissed the leaner by the name of Siphesihle Moteka on 14 March 2014. He stated that on the day in question, he arrived at the school at about 07:00 am. The school normally starts at 07:30 am, but it was his habit to arrive at 07:00 or 07: 05. After he had taken his bag from the car, he proceeded to his office. However, before he reached his office, he first went to the clerk’s office to take out the register. In order to reach his office, he must first pass the clerk’s office. The register is kept at the shelves in the clerk’s office. He used to take it out in the morning and he would put it back in the afternoon. After he had taken out the register and put it on top of the table, he then opened the doors and blinds so that the place would be user friendly to every one coming.
15. Subsequently, he proceeded to his office. When he arrived at his office, he first put his bag on top of his desk and he opened windows and blinds. Since there was no electricity at the school on that day and he had taken a wrong computer cable at home, he went out to look for the ground’s men, Mr Shabalala, who was going to assist him to locate a computer cable at the computer center. However, before he could open the door, the complainant, Siphesihle Moteka, came to him and asked if he could assist her with her school work. He told her that she must wait for him at the clerk’s room because he was still busy with Shabalala. Seeing that they could not find the computer cable, he decided leave Shabalala to continue looking for it. He then proceeded back to his office. While he was at his office, teachers and leaners were moving in and out of the office because the teachers were signing the register and the leaners were collecting registers that were kept at the office.
16. He requested the complainant to come inside the office. He offered her a chair to sit. The complainant then was sat on the opposite side of the desk. He then asked the complainant how can he assist her. The complainant told him that their class teacher, Mrs Mtshali, had given them a task to do at home, but she was battling to do it. He reprimanded the complainant that it was not his duty to give her answers. He further asked the complainant why she did not go to Mtshali to ask her to assist her with the work. The complainant told him that Mtshali could not properly explain the task to her. He then told the complainant that she must ask for a permission from her teacher next time because teachers would not be happy if he assists them with their tasks. He then looked at her work and discovered that she had written correct answers. He asked the complainant why she came to him because her answers were correct. The complainant told him that she had guessed the answers.
17. Whilst they were talking, another leaner knocked at the door to deposit an application for a vacant post on behalf of someone in the deposit box that was held at his office. Shortly afterwards, Shabalala also came into the office report that he did not find the computer cable and he left the office. However, before the complainant could leave his office, he recalled that there was an incident where a complainant’s relative had said something not good about him in town. He then asked the complainant about her relative. The complainant told him that the relative was now working in Johannesburg. He asked the complainant if she could give him the telephone number of the relative. She said she did not have the relative’s telephone number because she kept on changing numbers. He then told the complainant that he would give her his cellular phone number so that the complainant would contact him if she finds the relative’s number. He wrote his number in a piece of paper and gave it to the complainant. The bell rang and they parted to assembly.
18. In the assembly, he nominated Mis Zwane to act as a principal because he was going to leave school early on that day. He took his personal belongings and the cable and he left the school. At about 15:00 he telephoned Zwane to ask if everything went well. Zwane told him that they have had an inspection. Furthermore, another teacher had a problem with isiZulu.
19. On the same day in the evening, he received a telephone call from a person who identified himself as an uncle of the complainant. The complainant’s uncle asked the Applicant why he was harassing his niece. The Applicant then asked the uncle to put him into perspective. The uncle then told the Applicant that he did not want to talk to him; he will report the Applicant to his family. Subsequently, the Applicant telephone the Chairperson of the Governing body who advise him to wait for the uncle to register his complaint.
20. He referred the Council to the report in page 1 and 2 of bundle, which was a report he received from Zwane. He received the report in the morning on 14 March 2014. This report did not have any report about the complainant’s complaint. On the following day after they had reported to duty, he saw someone entering the school in a white car. He got off the car and came through the passage. The Applicant then asked if he could help him. In response, he said he was not coming to talk to him. He realized that he knew this person before, but he never thought that he was linked to the complainant’s incident. He then accompanied the person to the office of the deputy principal. When he arrived at deputy principal’s office, he found Makhoba, Zwane and the complainant. He then asked Makhoba what was happening. Makhoba told him that she had been called by Zwane from the class because Mr. Motika wanted to talk to her. Makhoba said Motika could not speak to the Applicant because he was implicated.
21. Afterward he called a management meeting. In the meeting they concluded that Makhoba was wrong by calling a meeting with the complainant’s family without informing the Applicant because she was his junior. However, they resolved that she must continue handling the matter because she had already started. On Thursday the same week, there was a students’ strike at the school. After a month, he was suspended from the school.
22. With regard to the incident of second charge, he stated that they used to have assembly every Mondays. On 19 March 2014 they had such an assembly. The assembly was attended by learners and teachers. There were no outsiders. In that assembly, he made an announcement that the learners must behave themselves; they must not run around. He used an analogy where by a dog is looking after his master. He denied that, by this analogy he was inferring that parents were dogs.
23. During cross examination, he denied that the complainant approached him while he was at the computer lab. He also denied that his evidence was manufactured. He disputed that he intentional invited the complainant into his office because he was alone since he did not have a clerk. He denied further that when they arrived with the complainant at the clerk’s room, it was the only two of them. He stated that the register can show that teachers were coming in and out to sign the register. When he was asked why he asked the complainant to come with him to his office without asking what assistance she was looking for, he said he did so because of their open-door policy. He said if someone was asking for an assistance, he was obliged give him or her an opportunity because teachers and learners come with various problems.
24. He denied that in 2014 he used to come to the complainant’s class to teach them geography, but it was in 2013. He denied that he discussed the complainant’s home work at clerk’s office. He said that was a blue lie. When it was put to him that, when he was assisting the complainant with her task, he came behind and tried to kiss her in the month, the complainant moved her head and he kissed her in the cheek; he denied this version. He stated that this was a fabrication. It was conspiracy engineered by his colleagues.
25. He denied that Mr. Shabalala attempted to come in while he was busy with complainant and he chased him away. He insisted that Shabalala came and advised him that he had find the cable. He denied also that after Shabalala had left, he moved the complainant to his office, closed the door and chased Sandile another learner when he knocked at the door.
26. He conceded that he used the word “dogs” at the assembly, but he stated that this was normal in the township culture and the learners understood what he was trying to say. He denied that he referred to parents as dogs. When it was put to him that Makhoba will testify to this effect. He stated that Makhoba was not present when he spoke at the assembly; she came late. He can still even recall what Makhoba was wearing when she arrived late at the assembly. She was wearing something with red and blue.
Second witness
27. The applicant’s second witness was Themba Ernest Mchunu who testified as follows:
28. He is 27 years old and he is working in the farm. However, during 2014, he was attending school at Ncanda Combined School. He knows the Applicant as he was the principal during that time and his deputy was Makhoba.
29. During 2014, there was a strike at the school. He was a ring leader during the strike. What had happened was that in one of the days in 2014, when he was coming from RCL, he was called by the deputy principal, Makhoba. She asked him how far did he knew the Applicant. He told her that he only knew the Applicant as his principal at the school. She then pleaded with him that she must organize a strike against the Applicant because the Applicant was abusing school funds, interfering with school nutrition programme, stealing food, and made them to eat expired food. She also told him that the Applicant was touching and harassing the girls at the school. She said there was a need to remove the Applicant urgently. He must therefore organize the strike. She also promised to give him money and buy him clothes. He stated that even though he knew the Applicant as a man of integrity, but he ended up believing what he had been told by Makhoba because he was still young, not matured and still at school.
30. Subsequently, he went to organize students that he knew that were stubborn. This was done behind the school in the toilets. Since Makhoba had given them the points which they must write in their placards, they wrote those points on their placards. They then proceeded to the front of the school with their placards. Makhoba had told them that she would give them a signal when they had to raise their placards. When the Applicant was approaching, Makhoba gave them a signal and they raised their placards and started to embarrass and disgraced the Applicant. The Applicant attempted to approach them to ask what was happening, but they could not listen to him and their proceeded with what they were doing. That was when the Applicant decided to call the police. The Police came and managed to put everything under control. Then they dispersed and went back to their classes.
31. However, he did not receive the money that Makhoba had promised to give him. When he was asking the money, Makhoba would threaten him to call the police. On 02 June 2014, Makhoba came with the police investigator because there were allegations that he had assaulted another school girl. He was taken from his class room to the office. He was then told that he was arrested for assaulting a learner. When he asked which learner he had assaulted, he was told that he would speak at the police station. He was subsequently arrested. After he had been arrested, he decided to leave the school because he was embarrassed by being arrested in front of other learners. However, the case against him was later withdrawn. What had happened was that he would normally go to court, but the complainant would not attend court. On his last court attendance, the girl who he was alleged to have assaulted attended court and she withdrew the charges against him.
32. Subsequently, he met with the Applicant. The reason why he met with the Applicant was because he had a guilty conscience on what he did to the Applicant. He still even had papers and things that Makhoba had instruct them to write about the Applicant.
33. During cross examination, he was asked what steps did he take about being harassed by Makhoba. He stated that the girl who had accused him ended up being arrested. However, he did not have proof to that effect. He stated that he had a statement that he made to police, but he did not bring it at the hearing. He denied that he came to testify in order to defend the Applicant. When asked whether Makhoba contacted him on same day of the strike, he said he was contacted by Makhoba before the date of strike. However, he conceded that he did not mention this during examination in chief. This was because there were lot of things in his mind.
34. When he was asked how much Makhoba had promised to pay him, he said Makhoba had promised to pay him R2000 00. However, when asked how much did he say Makhoba promised to pay him at the hearing, he said he could not remember testifying at the hearing. He denied that his evidence had been manufactured and he asked for an opportunity to look for documents to support his evidence. However, no documents were ever produced thereafter.
Third witness
35. The Applicant’s third witness was Philisiwe Sizakele Ntshalintshali, who testified as follows:
36. She testified that she was 41 years old and working for a logistic company in Johannesburg. The Applicant was her teacher long time ago.
37. In March 2014, he met the Applicant. It had been a while since she last saw the Applicant. She asked the Applicant where he was working. The Applicant told her that he was working at Ncandu Combined school as a principal. She told the Applicant that when she was working at Mr Price another lady by the name of Amanda Moteka told her that her sister was a member of the school governing body at Ncandu Combined School. Amanda told her that her sister told that there were problems at the school. The principal was mismanaging school funds. The principal was also sleeping with young girls and he had infected them with his disease. When she met the Applicant, she did not know that Amanda was referring to the Applicant. She therefore warned the Applicant to be careful.
38. During cross examination, she conceded that she was never a student at Ncandu during 2014 and she did not know the complainant, Siphesihle Moteka. She had also never been at the school during March 2014, but she came testify that there were rumours that were surfacing about the Applicant.
Respondent’s case
First witness
39. The Respondent’s first witness was Marjone Thandi Makhoba who testified as follows:
40. She was employed by the Respondent as a Deputy Principal at Ncandu Combined School. The Applicant was her principal. She initially had a good relationship with the Applicant. However, as the time went on, she realized that there was a communication bearer between her and the Applicant. The Applicant did not trust her and he had fear and insecurity. There were already three deputy principals who left the school within a very short space of time.
41. She was not at work on the date of the incident, 14 March 2014. However, on the following day 15 March 2014, she was approached by the complainant, Siphesihle Moteka. At that time she did not have an office, but she was sitting with the head of department. The complainant told her that on the previous day, 14 March 2014, she went to the Applicant at the computer center for assistance in her geography assignment. The Applicant told her that they must go into his office. They initially went into the clerk’s office first and the Applicant closed the door. Then they went into the Applicant’s office and he also closed the door. After the Applicant had sat down, the complainant showed him the assignment. The Applicant then stood up and he came close to her. He touched her and kissed her. Suddenly, there she heard a knock at the door. It was her classmate. After that the complainant left the Applicant’s office, she went to her class teacher to report what the principal did to her. The Applicant also reported the incident to her family. The complainant’s uncle told the complainant that he would report the incident to the Deputy Principal. After the complainant had told her what had happened, she told the complainant to tell her parents to come and report the issue at the school.
42. Subsequently, the complainant’s parent come to the school to report the incident. At that time she was with the Head of Department, Ms Zwane. After the parents had finish talking to them and while he was on his way out of school, he was approached by the Applicant. He confronted the parent and had an argument in the car. The Applicant ended up saying he would call the police. The parent then left the school.
43. With regard to the second charge, she testified that the Applicant, when addressing the assembly, he told learners that their parents are like dogs that go around in people houses looking for foods in the bins. He was provoked by the parent who came the previous day.
44. During cross examination, she stated that the Applicant mistrusted her because he would not put her close as his Deputy, but would put her at arms’ length. She admitted that she was not happy with the way the Applicant was treating her, but she denied she would have been happy if the Applicant was no longer at school. She also denied that the educators were not happy about the Applicant because he was very strict.
45. She confirmed that when the complainant came to her, it was just the two of them. She conceded that she did not know that Zwane was appointed to as an acting principal on the date of the incident. When it was put to her that this incident was never reported to Zwane who was acting as a principal, she stated that the class teacher never thought to report this incident to Zwane. She conceded that the boy who entered at the Applicant’s office was an important witness, but she did not know whether this boy was interviewed or not. The complainant told her that the boy found them standing. It was at that time that the complainant got up and left the office. She denied that she influenced Mchunu to organize the strike and that, subsequently, she harassed Mchunu to the point he had to drop out of school.
Second witness
46. The Respondent’s second witness was Tebogo Moteka who testified as follows:
47. He is the uncle of the complainant, Siphesihle Moteka. The complainant telephoned him about the matter. He went to her and she told him what had happened. The following day he went to the school. After he had signed at the security and while he was approaching the admin building, he was approached by the Applicant. The Applicant told him that he was trespassing and he would call the police. However, he proceeded to the admin office and he met Zwane. Ms Zwane called Makhoba and he reported the matter to both of them.
48. He stated that, Applicant had put his telephone number to the complainant’s pocket. He denied that the number was meant for the complainant’s sister, Amanda, who was a member of the school governing body and who was spreading bad rumors about the Applicant. He stated that his sister is married and she had been leaving in Johannesburg for the past seven years. She never been a member of the school governing body. He denied that the Motekas were trying to get the Applicant out of the school.
CLOSING ARGUMENTS
49. Both, the Applicant’s and the Respondent’s representatives submitted written closing submissions. I would not repeat their submissions herein, but I have considered their submissions in my analysis below.
ANALYSIS OF EVIDENCE AND SUBMISSIONS
50. In these proceedings I am required to deiced whether the Respondent committed an unfair labour practice related to demotion envisaged by section 186 (2) (a) of the Act, in particular whether the Applicant’s demotion was substantively unfair.
51. The general rule applicable to all civil litigation and arbitrations is that whoever alleges a fact must prove it on a balance of probabilities. In David Johan Randles v Chemical Specialities Case No D28610, the Labour Court held, with reference to Pillay v Khrishna 1946 A 946, that – “if one person claims something from another in a court of law, then he has to satisfy the court that he is entitled to it. In Lindsay v Ithala Development Finance Corporation Ltd (2) (2002) 23 ILJ 418 (CCMA), it was held that the overall onus always rests on the employee to show the existence of an unfair labour practice. Therefore, the Applicant bears onus to prove that the Respondent committed an unfair labour practice against him.
Whether the Applicant’s demotion was substantively unfair
52. In terms of section 186 (2) (a) of the Act, an unfair labour practice means any unfair act or omission that arises between an employer and an employee involving- unfair conduct by an employer relating to the promotion, demotion, probation or training of an employee or relating to the provision of benefits.
53. In Towu obo Malan v Commuter Handling Services (Pty) Ltd (2006) 3 BALR 327 (CCMA, it was held that demotion would be fair if it is aimed at avoiding a dismissal. In order to escape a definition of unfair labour practice within the context of demotion, the demotion must be both substantively and procedurally fair. In order for it to be substantively fair, it needs to be rational, which means that it needs to be justifiable on objective grounds such as misconduct, poor work performance or operational requirement. If the reason for demotion is a misconduct, it should be preceded by a disciplinary enquiry and the procedures provided for in item 4 of schedule 8.
54. In the present case it was common cause that the Applicant’s demotion was preceded by a properly constituted disciplinary enquiry and thus procedurally fair. The only issue in dispute was whether the demotion was substantively fair, in particular whether the Respondent had a justifiable reason to demote the Applicant.
55. The Respondent’s reason for demoting the Applicant was that the Applicant committed a serious misconduct in that he sexually harassed a learner by kissing her and also displayed disrespect towards staff members and leaners by calling parents dogs during the assembly. The Applicant denies both allegations of misconduct and contended that they were the fabrication aimed at getting rid of him out of the school. This raises dispute of facts between the Respondent’s and the Applicant’s versions. The Courts have developed guidelines on how to deal with the dispute of facts in a particular case. In SFW Group Ltd and Another vs Martel et Cie and Others 2003 (1) SA 11 (SCA), it was held that in order to come to a conclusion on the disputed facts the court must make findings on the credibility of various factual witnesses, their reliability and probabilities. In Sasol Mining (Pty) Ltd vs Commissioner Ngeleni & Others……………., it was held that the proper approach when resolving factual dispute is to make findings on the credibility and reliability of witnesses, which in turn entails finding on the witnesses condor, demeanor, contradictions in their evidence and an assessment of the probability of their testimony.
56. With regard to the first charge of kissing the complainant (the learner), the Applicant testified that the complainant came into his office to ask for assistance with her geography assignment because she was battling with it. After the Applicant had checked it, he discovered that the complainant had recorded correct answers. She then left his office. The Applicant went on to say that it was highly impossible for him to have harassed the complainant at his office because there were teachers who were moving in and out at the clerk’s office to sign the register and the leaners who were collecting registers at his office. With the exception of the kissing part of the Applicant’s version, the latter part of the version was never disputed by the Respondent. The Applicant further testified that the allegations against him was a conspiracy to get rid of him out of the school. Even though the Respondent disputed this version, but it was corroborated the Applicant second witness, Themba Mchunu. Mchunu testified that he was asked by the deputy principal, Makhoba, to organize a strike to get rid of the Applicant from school because he was abusing the school funds and harassing leaners. Makhoba promised to pay him money and to buy him clothes in return of what he was going to do for her. He successfully organized a strike against the Applicant. However, the strike was put under control by the police. Both the Applicant and Mchunu gave a very credible and convincing testimony and there was no reason to disbelieve their testimony. They stood their ground even during cross examination. The evidence of the Applicant’s third witness, Ntshalintshali, was largely hearsay and I could not attach any weight to it.
57. On the other hand, the Respondent’s two witnesses, Makhoba and Motika, also gave convincing testimony. However, they testimony was largely hearsay as its credibility was dependent on the evidence of the complainant, Siphesihle Motika, who did not attend the proceedings. There was no valid reason provided by the Respondent as to why the complainant did not attend the hearing to give her side of the story, which could have corroborated the evidence of Makhoba and Motika. The only reason was that the complainant had relocated to Johannesburg. As a result, the evidence of Makhoba and Motika was unreliable. Despite that, Makhoba conceded that she did not have a good relationship with the Applicant. In fact she conceded that she was not happy the way the Applicant was treating them. In my view, it is highly probable that Makhoba could have organize a strike to get rid of the Applicant. Therefore, in light of my findings above, I prefer the Applicant’s version over the Respondent version and I find that the Applicant did not harass the complainant, Siphesihle Motika.
58. With regard to the second charge, the Applicant denied that he insulted members of staff and learners by referring to parents as dogs. His version was that he was making an analogy and he did not specifically refer to parents as dogs. He rejected the Respondent’s version in this regard. He stated that Makhoba was not present when he was addressing the assembly as she came late on that day. He said he even remember what Makhoba was wearing on that day. This was never disputed by Makhoba. The evidential burden was on the Respondent to show that the Applicant did insult the staff members and leaners. In the absence of such evidence, I find that the Applicant did not insult the staff member and learners as alleged and that he did not conduct himself in a disrespectful manner.
59. In light of my findings above, I find that the Respondent did not have any justifiable reason to demote the Applicant and the Applicant’s demotion was substantively unfair.
REMEDY
60. In terms section 193 (4) of the Act, an arbitrator appointed in terms of the Act may determine an unfair labour practice dispute on terms that the arbitrator deemed reasonable, which may include ordering reinstatement, re-employment or compensation. In the present case, the Applicant seeks an order uplifting his demotion. I am of the view that an order ordering the Respondent to uplift the demotion and re-instating the Applicant to his position as a principal would be appropriate in the circumstances. Furthermore, it was common cause that the Applicant’s salary and benefits did not change as a result of the demotion. Therefore, the Applicant did not suffer any monetary loss.
AWARD
61. The demotion of the Applicant by the Respondent to the position of level one educator was substantively unfair.
62. The Respondent, the Department of Basic Education KwaZulu-Natal is ordered to re-instate the Applicant to the position of a Principal with effect from 15 December 2020.
63. The sanctions of ten thousand rand fine and the final warning which were issued to the Applicant are hereby set aside.
64. There is no order as to costs.
……………………………………….
Scelo V Mkhize - Panelist
Province: KwaZulu-Natal
Applicant: SIMELANE EXCELLENCE BHA
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Department of Education - KwaZulu- Natal, Amajuba District, 113 Panorama Street, Newcastle.
Award Date: 1 December 2020
Arbitrator: Scelo V Mkhize
IN THE ELRC ARBITRATION
BETWEEN:
SIMELANE EXCELLENCE BHA the Applicant
and
DEPARTMENT OF BASIC EDUCATION – KWAZULU-NATAL the Respondent
ARBITRATION AWARD
Case Number: PSES754-18/19KZN
Last date of arbitration: 21 October 2020
Date of award: 01/12/2020
Arbitrator: Scelo V Mkhize
Education Labour Relations Council
ELRC Building, 261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.z
DETAILS OF THE HEARING
1. The matter was enrolled before me for arbitration proceedings in terms of section 191(5) (a) (iv) of the Labour Relations Act 66 of 1995 as amended (The Act). The arbitration was held on various dates being the 09 and 10 May 2019, 03 and 04 July 2019, 10 September 2019 and it was concluded on 16/01/2020. The arbitration was held at the Department of Education - KwaZulu- Natal, Amajuba District, 113 Panorama Street, Newcastle.
2. The Applicant, Mr Simelane, appeared in person and was represented by Mr K M Chetty from K M Chetty Attorneys. The Respondent, on the other hand, was represented by Ms J Dumisa an official from the Department of Education, KwaZulu-Natal.
3. The arbitration was held in English and it was mechanically recorded.
ISSUE TO BE DECIDED
4. In these proceedings, I am initially required to decide whether the Applicant was demoted by the Respondent within the ambit of section 186 (2) (a) of the Act. If so, whether the demotion constituted an unfair labour practice envisaged by section 186 (2) (a) of the Act.
BACKGROUND
5. The Applicant is Excellence Bha Simelane who was employed by the Respondent as the principal at Ncandu Combined School as an educator. The Respondent is the Department of Education KwaZulu Natal, a governmental department dully fulfilling its mandate in terms of the Constitution and in terms of the South African Schools Act 84 of 1996, with its provincial offices at 247 Burger street, Pietermaritzburg, KwaZulu Natal.
6. The Applicant referred a dispute for unfair labour practice related to demotion in terms section 186 (2) (a) of the Labour Relations Act 66 of 1995 to this honorable council claiming that he was unfairly demoted from his position as a principal to the position of level one educator and that he was given a fine of R10000,00 from which R9000,00 was suspended for three years and R1000,00 was payable immediately. The demotion emanated from the following charges of misconduct which were levelled against him:
• That on or about 14/03/2014, or near Ncandu Combined School, while on duty, he conducted yourself in an improper disgraceful or unacceptable manner in that he kissed a leaner by the Name of Siphesihle Moteka and there by contravened section 18 (1) (q) of the Employment of Educators Act.
• That on or about March 2014 at or near Ncandu Combined School he displayed disrespect towards staff members and leaners, in that he insulted parents by calling them dogs whilst addressing leaners during assembly and thereby contravening section 18(1) (t) of the Employment of educators Act.
7. He was found guilty on both charges and he was demoted as mentioned in paragraph 6 above. He referred a dispute to this council alleging an unfair labour practice. The matter remained unresolved at conciliation and it was referred to arbitration. The arbitration was concluded on 16 January 2020, hence this arbitration award.
8. The basis upon which the Applicant claims an unfair labour practice was that he did not commit the misconducts mentioned in paragraph 6 above. He contended that there was a conspiracy to get him out of the school.
9. The Respondent, on the other hand, denied that it committed an unfair labour practice against the Applicant. It contended that the Applicant was demoted after he had been found guilty of the charges mentioned in paragraph 6 above and after a properly constituted disciplinary enquiry.
COMMON CAUSE FACTS
10. The following facts were common cause between the parties: That the Applicant is employed by the Respondent at Ncandu Combined School; that he was employed as a principal; that on 09 December 2014, he was demoted from being a principal to the position of a deputy principal after he had been found guilty of the charges mentioned paragraph 6 above and that in addition to the demotion, he was given a written warning and also given a fine of R1000,00. It was also common cause that the Applicant was not challenging any procedural defect.
ISSUES IN DISPUTE
11. The following issues were in dispute between the parties: Whether the Applicant’s demotion was substantively unfair, in particular, whether the Applicant committed the charges in paragraph 6 above and whether there was any conspiracy to get rid of the Applicant out of the school.
SURVEY OF EVIDENCE AND ARGUMENTS
Applicant’s case
First witness
12. The Applicant, Excellent Bha Simelane, was the first witness to testify in support of his case and he testified as follows:
13. He is 54 years old and married. He was employed as a principal at Ncandu Combined School. He entered the education profession on 15 January 1991.
14. He denied that he kissed the leaner by the name of Siphesihle Moteka on 14 March 2014. He stated that on the day in question, he arrived at the school at about 07:00 am. The school normally starts at 07:30 am, but it was his habit to arrive at 07:00 or 07: 05. After he had taken his bag from the car, he proceeded to his office. However, before he reached his office, he first went to the clerk’s office to take out the register. In order to reach his office, he must first pass the clerk’s office. The register is kept at the shelves in the clerk’s office. He used to take it out in the morning and he would put it back in the afternoon. After he had taken out the register and put it on top of the table, he then opened the doors and blinds so that the place would be user friendly to every one coming.
15. Subsequently, he proceeded to his office. When he arrived at his office, he first put his bag on top of his desk and he opened windows and blinds. Since there was no electricity at the school on that day and he had taken a wrong computer cable at home, he went out to look for the ground’s men, Mr Shabalala, who was going to assist him to locate a computer cable at the computer center. However, before he could open the door, the complainant, Siphesihle Moteka, came to him and asked if he could assist her with her school work. He told her that she must wait for him at the clerk’s room because he was still busy with Shabalala. Seeing that they could not find the computer cable, he decided leave Shabalala to continue looking for it. He then proceeded back to his office. While he was at his office, teachers and leaners were moving in and out of the office because the teachers were signing the register and the leaners were collecting registers that were kept at the office.
16. He requested the complainant to come inside the office. He offered her a chair to sit. The complainant then was sat on the opposite side of the desk. He then asked the complainant how can he assist her. The complainant told him that their class teacher, Mrs Mtshali, had given them a task to do at home, but she was battling to do it. He reprimanded the complainant that it was not his duty to give her answers. He further asked the complainant why she did not go to Mtshali to ask her to assist her with the work. The complainant told him that Mtshali could not properly explain the task to her. He then told the complainant that she must ask for a permission from her teacher next time because teachers would not be happy if he assists them with their tasks. He then looked at her work and discovered that she had written correct answers. He asked the complainant why she came to him because her answers were correct. The complainant told him that she had guessed the answers.
17. Whilst they were talking, another leaner knocked at the door to deposit an application for a vacant post on behalf of someone in the deposit box that was held at his office. Shortly afterwards, Shabalala also came into the office report that he did not find the computer cable and he left the office. However, before the complainant could leave his office, he recalled that there was an incident where a complainant’s relative had said something not good about him in town. He then asked the complainant about her relative. The complainant told him that the relative was now working in Johannesburg. He asked the complainant if she could give him the telephone number of the relative. She said she did not have the relative’s telephone number because she kept on changing numbers. He then told the complainant that he would give her his cellular phone number so that the complainant would contact him if she finds the relative’s number. He wrote his number in a piece of paper and gave it to the complainant. The bell rang and they parted to assembly.
18. In the assembly, he nominated Mis Zwane to act as a principal because he was going to leave school early on that day. He took his personal belongings and the cable and he left the school. At about 15:00 he telephoned Zwane to ask if everything went well. Zwane told him that they have had an inspection. Furthermore, another teacher had a problem with isiZulu.
19. On the same day in the evening, he received a telephone call from a person who identified himself as an uncle of the complainant. The complainant’s uncle asked the Applicant why he was harassing his niece. The Applicant then asked the uncle to put him into perspective. The uncle then told the Applicant that he did not want to talk to him; he will report the Applicant to his family. Subsequently, the Applicant telephone the Chairperson of the Governing body who advise him to wait for the uncle to register his complaint.
20. He referred the Council to the report in page 1 and 2 of bundle, which was a report he received from Zwane. He received the report in the morning on 14 March 2014. This report did not have any report about the complainant’s complaint. On the following day after they had reported to duty, he saw someone entering the school in a white car. He got off the car and came through the passage. The Applicant then asked if he could help him. In response, he said he was not coming to talk to him. He realized that he knew this person before, but he never thought that he was linked to the complainant’s incident. He then accompanied the person to the office of the deputy principal. When he arrived at deputy principal’s office, he found Makhoba, Zwane and the complainant. He then asked Makhoba what was happening. Makhoba told him that she had been called by Zwane from the class because Mr. Motika wanted to talk to her. Makhoba said Motika could not speak to the Applicant because he was implicated.
21. Afterward he called a management meeting. In the meeting they concluded that Makhoba was wrong by calling a meeting with the complainant’s family without informing the Applicant because she was his junior. However, they resolved that she must continue handling the matter because she had already started. On Thursday the same week, there was a students’ strike at the school. After a month, he was suspended from the school.
22. With regard to the incident of second charge, he stated that they used to have assembly every Mondays. On 19 March 2014 they had such an assembly. The assembly was attended by learners and teachers. There were no outsiders. In that assembly, he made an announcement that the learners must behave themselves; they must not run around. He used an analogy where by a dog is looking after his master. He denied that, by this analogy he was inferring that parents were dogs.
23. During cross examination, he denied that the complainant approached him while he was at the computer lab. He also denied that his evidence was manufactured. He disputed that he intentional invited the complainant into his office because he was alone since he did not have a clerk. He denied further that when they arrived with the complainant at the clerk’s room, it was the only two of them. He stated that the register can show that teachers were coming in and out to sign the register. When he was asked why he asked the complainant to come with him to his office without asking what assistance she was looking for, he said he did so because of their open-door policy. He said if someone was asking for an assistance, he was obliged give him or her an opportunity because teachers and learners come with various problems.
24. He denied that in 2014 he used to come to the complainant’s class to teach them geography, but it was in 2013. He denied that he discussed the complainant’s home work at clerk’s office. He said that was a blue lie. When it was put to him that, when he was assisting the complainant with her task, he came behind and tried to kiss her in the month, the complainant moved her head and he kissed her in the cheek; he denied this version. He stated that this was a fabrication. It was conspiracy engineered by his colleagues.
25. He denied that Mr. Shabalala attempted to come in while he was busy with complainant and he chased him away. He insisted that Shabalala came and advised him that he had find the cable. He denied also that after Shabalala had left, he moved the complainant to his office, closed the door and chased Sandile another learner when he knocked at the door.
26. He conceded that he used the word “dogs” at the assembly, but he stated that this was normal in the township culture and the learners understood what he was trying to say. He denied that he referred to parents as dogs. When it was put to him that Makhoba will testify to this effect. He stated that Makhoba was not present when he spoke at the assembly; she came late. He can still even recall what Makhoba was wearing when she arrived late at the assembly. She was wearing something with red and blue.
Second witness
27. The applicant’s second witness was Themba Ernest Mchunu who testified as follows:
28. He is 27 years old and he is working in the farm. However, during 2014, he was attending school at Ncanda Combined School. He knows the Applicant as he was the principal during that time and his deputy was Makhoba.
29. During 2014, there was a strike at the school. He was a ring leader during the strike. What had happened was that in one of the days in 2014, when he was coming from RCL, he was called by the deputy principal, Makhoba. She asked him how far did he knew the Applicant. He told her that he only knew the Applicant as his principal at the school. She then pleaded with him that she must organize a strike against the Applicant because the Applicant was abusing school funds, interfering with school nutrition programme, stealing food, and made them to eat expired food. She also told him that the Applicant was touching and harassing the girls at the school. She said there was a need to remove the Applicant urgently. He must therefore organize the strike. She also promised to give him money and buy him clothes. He stated that even though he knew the Applicant as a man of integrity, but he ended up believing what he had been told by Makhoba because he was still young, not matured and still at school.
30. Subsequently, he went to organize students that he knew that were stubborn. This was done behind the school in the toilets. Since Makhoba had given them the points which they must write in their placards, they wrote those points on their placards. They then proceeded to the front of the school with their placards. Makhoba had told them that she would give them a signal when they had to raise their placards. When the Applicant was approaching, Makhoba gave them a signal and they raised their placards and started to embarrass and disgraced the Applicant. The Applicant attempted to approach them to ask what was happening, but they could not listen to him and their proceeded with what they were doing. That was when the Applicant decided to call the police. The Police came and managed to put everything under control. Then they dispersed and went back to their classes.
31. However, he did not receive the money that Makhoba had promised to give him. When he was asking the money, Makhoba would threaten him to call the police. On 02 June 2014, Makhoba came with the police investigator because there were allegations that he had assaulted another school girl. He was taken from his class room to the office. He was then told that he was arrested for assaulting a learner. When he asked which learner he had assaulted, he was told that he would speak at the police station. He was subsequently arrested. After he had been arrested, he decided to leave the school because he was embarrassed by being arrested in front of other learners. However, the case against him was later withdrawn. What had happened was that he would normally go to court, but the complainant would not attend court. On his last court attendance, the girl who he was alleged to have assaulted attended court and she withdrew the charges against him.
32. Subsequently, he met with the Applicant. The reason why he met with the Applicant was because he had a guilty conscience on what he did to the Applicant. He still even had papers and things that Makhoba had instruct them to write about the Applicant.
33. During cross examination, he was asked what steps did he take about being harassed by Makhoba. He stated that the girl who had accused him ended up being arrested. However, he did not have proof to that effect. He stated that he had a statement that he made to police, but he did not bring it at the hearing. He denied that he came to testify in order to defend the Applicant. When asked whether Makhoba contacted him on same day of the strike, he said he was contacted by Makhoba before the date of strike. However, he conceded that he did not mention this during examination in chief. This was because there were lot of things in his mind.
34. When he was asked how much Makhoba had promised to pay him, he said Makhoba had promised to pay him R2000 00. However, when asked how much did he say Makhoba promised to pay him at the hearing, he said he could not remember testifying at the hearing. He denied that his evidence had been manufactured and he asked for an opportunity to look for documents to support his evidence. However, no documents were ever produced thereafter.
Third witness
35. The Applicant’s third witness was Philisiwe Sizakele Ntshalintshali, who testified as follows:
36. She testified that she was 41 years old and working for a logistic company in Johannesburg. The Applicant was her teacher long time ago.
37. In March 2014, he met the Applicant. It had been a while since she last saw the Applicant. She asked the Applicant where he was working. The Applicant told her that he was working at Ncandu Combined school as a principal. She told the Applicant that when she was working at Mr Price another lady by the name of Amanda Moteka told her that her sister was a member of the school governing body at Ncandu Combined School. Amanda told her that her sister told that there were problems at the school. The principal was mismanaging school funds. The principal was also sleeping with young girls and he had infected them with his disease. When she met the Applicant, she did not know that Amanda was referring to the Applicant. She therefore warned the Applicant to be careful.
38. During cross examination, she conceded that she was never a student at Ncandu during 2014 and she did not know the complainant, Siphesihle Moteka. She had also never been at the school during March 2014, but she came testify that there were rumours that were surfacing about the Applicant.
Respondent’s case
First witness
39. The Respondent’s first witness was Marjone Thandi Makhoba who testified as follows:
40. She was employed by the Respondent as a Deputy Principal at Ncandu Combined School. The Applicant was her principal. She initially had a good relationship with the Applicant. However, as the time went on, she realized that there was a communication bearer between her and the Applicant. The Applicant did not trust her and he had fear and insecurity. There were already three deputy principals who left the school within a very short space of time.
41. She was not at work on the date of the incident, 14 March 2014. However, on the following day 15 March 2014, she was approached by the complainant, Siphesihle Moteka. At that time she did not have an office, but she was sitting with the head of department. The complainant told her that on the previous day, 14 March 2014, she went to the Applicant at the computer center for assistance in her geography assignment. The Applicant told her that they must go into his office. They initially went into the clerk’s office first and the Applicant closed the door. Then they went into the Applicant’s office and he also closed the door. After the Applicant had sat down, the complainant showed him the assignment. The Applicant then stood up and he came close to her. He touched her and kissed her. Suddenly, there she heard a knock at the door. It was her classmate. After that the complainant left the Applicant’s office, she went to her class teacher to report what the principal did to her. The Applicant also reported the incident to her family. The complainant’s uncle told the complainant that he would report the incident to the Deputy Principal. After the complainant had told her what had happened, she told the complainant to tell her parents to come and report the issue at the school.
42. Subsequently, the complainant’s parent come to the school to report the incident. At that time she was with the Head of Department, Ms Zwane. After the parents had finish talking to them and while he was on his way out of school, he was approached by the Applicant. He confronted the parent and had an argument in the car. The Applicant ended up saying he would call the police. The parent then left the school.
43. With regard to the second charge, she testified that the Applicant, when addressing the assembly, he told learners that their parents are like dogs that go around in people houses looking for foods in the bins. He was provoked by the parent who came the previous day.
44. During cross examination, she stated that the Applicant mistrusted her because he would not put her close as his Deputy, but would put her at arms’ length. She admitted that she was not happy with the way the Applicant was treating her, but she denied she would have been happy if the Applicant was no longer at school. She also denied that the educators were not happy about the Applicant because he was very strict.
45. She confirmed that when the complainant came to her, it was just the two of them. She conceded that she did not know that Zwane was appointed to as an acting principal on the date of the incident. When it was put to her that this incident was never reported to Zwane who was acting as a principal, she stated that the class teacher never thought to report this incident to Zwane. She conceded that the boy who entered at the Applicant’s office was an important witness, but she did not know whether this boy was interviewed or not. The complainant told her that the boy found them standing. It was at that time that the complainant got up and left the office. She denied that she influenced Mchunu to organize the strike and that, subsequently, she harassed Mchunu to the point he had to drop out of school.
Second witness
46. The Respondent’s second witness was Tebogo Moteka who testified as follows:
47. He is the uncle of the complainant, Siphesihle Moteka. The complainant telephoned him about the matter. He went to her and she told him what had happened. The following day he went to the school. After he had signed at the security and while he was approaching the admin building, he was approached by the Applicant. The Applicant told him that he was trespassing and he would call the police. However, he proceeded to the admin office and he met Zwane. Ms Zwane called Makhoba and he reported the matter to both of them.
48. He stated that, Applicant had put his telephone number to the complainant’s pocket. He denied that the number was meant for the complainant’s sister, Amanda, who was a member of the school governing body and who was spreading bad rumors about the Applicant. He stated that his sister is married and she had been leaving in Johannesburg for the past seven years. She never been a member of the school governing body. He denied that the Motekas were trying to get the Applicant out of the school.
CLOSING ARGUMENTS
49. Both, the Applicant’s and the Respondent’s representatives submitted written closing submissions. I would not repeat their submissions herein, but I have considered their submissions in my analysis below.
ANALYSIS OF EVIDENCE AND SUBMISSIONS
50. In these proceedings I am required to deiced whether the Respondent committed an unfair labour practice related to demotion envisaged by section 186 (2) (a) of the Act, in particular whether the Applicant’s demotion was substantively unfair.
51. The general rule applicable to all civil litigation and arbitrations is that whoever alleges a fact must prove it on a balance of probabilities. In David Johan Randles v Chemical Specialities Case No D28610, the Labour Court held, with reference to Pillay v Khrishna 1946 A 946, that – “if one person claims something from another in a court of law, then he has to satisfy the court that he is entitled to it. In Lindsay v Ithala Development Finance Corporation Ltd (2) (2002) 23 ILJ 418 (CCMA), it was held that the overall onus always rests on the employee to show the existence of an unfair labour practice. Therefore, the Applicant bears onus to prove that the Respondent committed an unfair labour practice against him.
Whether the Applicant’s demotion was substantively unfair
52. In terms of section 186 (2) (a) of the Act, an unfair labour practice means any unfair act or omission that arises between an employer and an employee involving- unfair conduct by an employer relating to the promotion, demotion, probation or training of an employee or relating to the provision of benefits.
53. In Towu obo Malan v Commuter Handling Services (Pty) Ltd (2006) 3 BALR 327 (CCMA, it was held that demotion would be fair if it is aimed at avoiding a dismissal. In order to escape a definition of unfair labour practice within the context of demotion, the demotion must be both substantively and procedurally fair. In order for it to be substantively fair, it needs to be rational, which means that it needs to be justifiable on objective grounds such as misconduct, poor work performance or operational requirement. If the reason for demotion is a misconduct, it should be preceded by a disciplinary enquiry and the procedures provided for in item 4 of schedule 8.
54. In the present case it was common cause that the Applicant’s demotion was preceded by a properly constituted disciplinary enquiry and thus procedurally fair. The only issue in dispute was whether the demotion was substantively fair, in particular whether the Respondent had a justifiable reason to demote the Applicant.
55. The Respondent’s reason for demoting the Applicant was that the Applicant committed a serious misconduct in that he sexually harassed a learner by kissing her and also displayed disrespect towards staff members and leaners by calling parents dogs during the assembly. The Applicant denies both allegations of misconduct and contended that they were the fabrication aimed at getting rid of him out of the school. This raises dispute of facts between the Respondent’s and the Applicant’s versions. The Courts have developed guidelines on how to deal with the dispute of facts in a particular case. In SFW Group Ltd and Another vs Martel et Cie and Others 2003 (1) SA 11 (SCA), it was held that in order to come to a conclusion on the disputed facts the court must make findings on the credibility of various factual witnesses, their reliability and probabilities. In Sasol Mining (Pty) Ltd vs Commissioner Ngeleni & Others……………., it was held that the proper approach when resolving factual dispute is to make findings on the credibility and reliability of witnesses, which in turn entails finding on the witnesses condor, demeanor, contradictions in their evidence and an assessment of the probability of their testimony.
56. With regard to the first charge of kissing the complainant (the learner), the Applicant testified that the complainant came into his office to ask for assistance with her geography assignment because she was battling with it. After the Applicant had checked it, he discovered that the complainant had recorded correct answers. She then left his office. The Applicant went on to say that it was highly impossible for him to have harassed the complainant at his office because there were teachers who were moving in and out at the clerk’s office to sign the register and the leaners who were collecting registers at his office. With the exception of the kissing part of the Applicant’s version, the latter part of the version was never disputed by the Respondent. The Applicant further testified that the allegations against him was a conspiracy to get rid of him out of the school. Even though the Respondent disputed this version, but it was corroborated the Applicant second witness, Themba Mchunu. Mchunu testified that he was asked by the deputy principal, Makhoba, to organize a strike to get rid of the Applicant from school because he was abusing the school funds and harassing leaners. Makhoba promised to pay him money and to buy him clothes in return of what he was going to do for her. He successfully organized a strike against the Applicant. However, the strike was put under control by the police. Both the Applicant and Mchunu gave a very credible and convincing testimony and there was no reason to disbelieve their testimony. They stood their ground even during cross examination. The evidence of the Applicant’s third witness, Ntshalintshali, was largely hearsay and I could not attach any weight to it.
57. On the other hand, the Respondent’s two witnesses, Makhoba and Motika, also gave convincing testimony. However, they testimony was largely hearsay as its credibility was dependent on the evidence of the complainant, Siphesihle Motika, who did not attend the proceedings. There was no valid reason provided by the Respondent as to why the complainant did not attend the hearing to give her side of the story, which could have corroborated the evidence of Makhoba and Motika. The only reason was that the complainant had relocated to Johannesburg. As a result, the evidence of Makhoba and Motika was unreliable. Despite that, Makhoba conceded that she did not have a good relationship with the Applicant. In fact she conceded that she was not happy the way the Applicant was treating them. In my view, it is highly probable that Makhoba could have organize a strike to get rid of the Applicant. Therefore, in light of my findings above, I prefer the Applicant’s version over the Respondent version and I find that the Applicant did not harass the complainant, Siphesihle Motika.
58. With regard to the second charge, the Applicant denied that he insulted members of staff and learners by referring to parents as dogs. His version was that he was making an analogy and he did not specifically refer to parents as dogs. He rejected the Respondent’s version in this regard. He stated that Makhoba was not present when he was addressing the assembly as she came late on that day. He said he even remember what Makhoba was wearing on that day. This was never disputed by Makhoba. The evidential burden was on the Respondent to show that the Applicant did insult the staff members and leaners. In the absence of such evidence, I find that the Applicant did not insult the staff member and learners as alleged and that he did not conduct himself in a disrespectful manner.
59. In light of my findings above, I find that the Respondent did not have any justifiable reason to demote the Applicant and the Applicant’s demotion was substantively unfair.
REMEDY
60. In terms section 193 (4) of the Act, an arbitrator appointed in terms of the Act may determine an unfair labour practice dispute on terms that the arbitrator deemed reasonable, which may include ordering reinstatement, re-employment or compensation. In the present case, the Applicant seeks an order uplifting his demotion. I am of the view that an order ordering the Respondent to uplift the demotion and re-instating the Applicant to his position as a principal would be appropriate in the circumstances. Furthermore, it was common cause that the Applicant’s salary and benefits did not change as a result of the demotion. Therefore, the Applicant did not suffer any monetary loss.
AWARD
61. The demotion of the Applicant by the Respondent to the position of level one educator was substantively unfair.
62. The Respondent, the Department of Basic Education KwaZulu-Natal is ordered to re-instate the Applicant to the position of a Principal with effect from 15 December 2020.
63. The sanctions of ten thousand rand fine and the final warning which were issued to the Applicant are hereby set aside.
64. There is no order as to costs.
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Scelo V Mkhize - Panelist