Case Number: PSES 992-18/19WC
Province: Western Cape
Applicant: T E Kika
Respondent: Department of Education Western Cape
Issue: Unfair Dismissal - Misconduct
Venue: Western Cape in George and M M Mateza Primary School in Thembalethu, George.
Award Date: 27 January 2021
Arbitrator: A C E Reynolds
Panelist: A C E Reynolds
Case Number: PSES 992-18/19WC
Date of Award : 27 January 2021
In the ARBITRATION between:
T E Kika
Department of Education – Western Cape
Union/Applicant’s representative : Mr S Mbalo (SADTU)
Union/Applicant’s address : 6208 Khululeka Street
Union/Applicant’s Telephone No’s : 0839687315 / 0836349214
Union/Applicant’s E-mails : SMbalo@sadtu.org.za
Respondent’s representative : Mr R Jansen
Respondent’s address : Private Bag X9114
Respondent’s Telephone No’s : (021) 4679223 / 0780092514
Respondent’s E-mails : Roy.Jansen@westerncape.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. The matter was referred for arbitration to the Education Labour Relations Council (ELRC) for a dispute relating to an alleged unfair dismissal for misconduct (alleged assault of a learner) referred in terms of section 191(5)(a)(i) of the Labour Relations Act 66 of 1995 as amended (the LRA) and was completed over five sittings on 3 November 2020, 4 November 2020, 5 November 2020, 25 November 2020 and 26 November 2020 at the premises of the Department of Education – Western Cape in George and M M Mateza Primary School in Thembalethu, George.
2. The applicant, Mr T Kika, was represented by Mr S Mbalo, SADTU Official and Full Time Shop Steward, and the respondent, Department of Education – Western Cape (WCED), by Mr R F Jansen, Senior Employee Relations Officer. Ms D Volkwyn-Frans, Employee Relations Officer, was also present for the respondent in all the sittings. Mr D Kova was present to assist with interpretation where required into and from IsiXhosa and to act as an intermediary for learner witnesses at all the sittings.
3. The proceedings were conducted in IsiXhosa and English with digital and electronic recordings made. It was agreed that Mr Jansen could also make a recording of the proceedings, on the understanding that the official digital record will be that of the Panelist. Mr Mbalo for the applicant elected to not also make their own recording of the proceedings.
4. The parties did not require an explanation of the arbitration proceedings.
5. Reference was made to the Pre-Arbitration Minutes dated 11 April 2019, which were confirmed by the parties, with the addition of certain amendments and with the relevant extracts included in the award.
ISSUE TO BE DECIDED
6. The purpose of this arbitration is to determine whether the applicant, Mr T Kika’s, dismissal by the respondent, the Department of Education – Western Cape, for alleged misconduct was fair on both procedural and substantive grounds, as well as the appropriate relief if unfairness is found. The relief sought was retrospective reinstatement of the applicant from the date of dismissal in a Post Level 1 Educator position, preferably at a different school.
BACKGROUND TO THE DISPUTE
The following facts were common cause
7. The applicant was employed by the Respondent as a Post Level 1 Educator since 1July 2008 at M M Mateza Primary School in Thembalethu, George. Prior to his employment at M M Mateza Primary School he was employed at Mzoxolo Primary School in Lawaaikamp, George in a temporary Post Level 1 position for 1.5 years. He earned a gross salary of R26401.22 per month at the time of his dismissal.
8. The applicant was dismissed on 4 February 2019 after he was found guilty at a disciplinary hearing held on 19 September 2018 (this date was subsequently corrected based on the presiding officer Mr G R Mentor’s disciplinary findings, which formed part of the admitted bundle of documents, that the disciplinary hearing in fact took place over four days on 18 September 2018 and 16 to 18 October 2018), on the following charge:
“It is alleged that you are guilty of misconduct in terms of Section 18(1)(r) of the Employment of Educators Act, 76 of 1998, in that on or about June 2018, you assaulted learner “A”, a learner at MM Mateza Primary School, by:
a) Hitting her with a pipe on the leg; and/or
b) Hitting her with an exam paper across the face.
9. The applicant pleaded not guilty to this charge in the disciplinary hearing. He received the outcome of the hearing on 31 October 2018 and appealed against the sanction of dismissal on 7 November 2018. The MEC upheld the dismissal on 4 February 2019, of which the Applicant was informed on 8 February 2019. The applicant worked up till 8 February 2019 and was paid up till 15 February 2019.
10. The Applicant had received two final written warnings for similar charges, the first on 31 October 2017 valid for six months with a fine of R3000.00 payable over ten months based on a plea bargain agreement, and the second on 10 May 2018 valid for six months with a fine of R5000.00 payable over six months based on him pleading guilty at a disciplinary hearing.
11. At the time of the alleged incident the applicant did hold a piece of plastic water pipe in his hand. The learner in question did not undergo a medical examination to ascertain the extent of any injuries to her leg. The applicant was a SADTU shop steward at the time of him being notified of the disciplinary action against him.
The following facts were in dispute:
The procedure was in dispute for the following reasons:
12. Whether the respondent failed to consult with SADTU about the intention to take disciplinary action against the applicant in his capacity as shop steward.
13. Whether the hearing was conducted in a procedurally and substantively fair manner.
The reasons for the dismissal were in dispute for the following reasons:
14. Whether the applicant was guilty or not of the alleged transgressions since he denied committing the conduct that he was charged for.
15. Whether the applicant was present in the class when the examination took place and had issued the examination/test papers relating to the complaint regarding the examination paper.
16. Whether in the circumstances the dismissal was substantively unfair.
SURVEY OF EVIDENCE AND ARGUMENT
17. Learners A, B and C testified in absentia for the respondent. The principal of M M Mateza Primary School, Mr M Makasi, also testified under oath for the respondent. The respondent handed in the letters of consent for their three learner witnesses.
18. The applicant, Mr T Kika, and Mr M A Mpinda, an educator at M M Mateza Primary School, testified under oath for the applicant. Learner D also testified in absentia for the applicant.
19. In camera facilities were not available at the two venues where the arbitration took place for the learner witnesses to present their evidence. It was agreed with the parties that the learner witnesses would present their evidence in absentia through Mr Kova, the Intermediary/Interpreter, in the following manner, which was explained as well to the child witnesses in person on record by the Panelist, without the other parties being present: Mr Kova would write down a representative’s questions for the child witness, take each child witness to a separate room, record their responses and then report these responses back to the representatives and the Panelist, on record. Any questions in cross-examination and re-examination of the witness would then similarly be recorded in writing by Mr Kova and put to the absent witness, who would convey the responses on record.
20. Documents were only handed in by the respondent, which were admitted by the applicant.
21. An in loco inspection of the school classroom 7E at M M Mateza Primary School where the alleged incidents took place was arranged for the morning of 25 November 2020. Mr Kova assisted in preparing the classroom layout sketches with desks and chairs and where persons were positioned to illustrate the parties’ respective versions. Learners A, B and C agreed to be present with the applicant when these witnesses’ versions and that of the applicant of where individuals and items of furniture were positioned at the time of the alleged incidents in June 2018 were presented. Learner D presented his version separately from the other witnesses since he had not testified yet. Notes were made relating to the in loco inspection, which were recorded on the five layout sketches prepared by Mr Kova and of which copies were provided to the parties. The inspection was also recorded digitally. The layout sketches of classroom 7E were as follows:
1. The layout of adjacent classrooms along the school corridor.
2. The layout with desks and chairs in classroom 7E as at 25 November 2020.
3. The layout of desks, chairs and the positioning of individuals at the time of the alleged incidents in the version of Learners A, B and C.
4. The layout of desks, chairs and the positioning of individuals at the time of the alleged incidents in the version of the applicant, Mr Kika.
5. The layout of desks, chairs and the positioning of individuals at the time of the alleged incidents in the version of Learner D, who was still to testify.
22. Only the evidence relevant to the facts in dispute are summarised below and that which was established as common cause is not repeated, unless relevant. Detail is provided, were relevant. Witnesses’ evidence in chief, under cross-examination and re-examination are summarised separately to assist with the evaluation of their evidence.
THE RESPONDENT’S EVIDENCE
23. The respondent’s case was that they received allegations of assault against the applicant and Mr R Jansen, the respondent’s representative in these proceedings, was appointed to investigate the allegations. After investigation the respondent was satisfied that there was enough substance to charge the applicant for misconduct. The previous allegations against the applicant also came to the fore during these investigations when it was found that the last assault that the applicant pleaded guilty to was within the six months that the current incident took place. Based on that a charge sheet was drafted which indicated that the applicant hit a learner with a pipe on the leg and an exam paper in face. On the previous two occasions the applicant was not a shop steward. At the pre-hearing the respondent was informed that the applicant was elected as a shop steward and based on that the respondent requested the applicant’s representative and the applicant to have a consultation with them at that stage, which they all agreed to. The LRA was clear that the respondent only needed to consult with the union, but that nothing during the consultation will change the allegations and that the respondent will still continue with the charges against the applicant. This issue also came up during the applicant’s disciplinary hearing and the presiding officer asked if it was going to be a problem to proceed with the disciplinary hearing or whether it should stand down. Both parties agreed that the matter should proceed, whereafter the applicant was found guilty. The applicant had appealed against the sanction with the only issue in the appeal letter the fact that the applicant was a union representative. With respect to the allegations the respondent would lead the evidence of three learners as to what happened on the day and to what two of them saw. The principal would also testify to the fact that the main witness came to see him, what she told him and what his response was. The respondent was of the view that the applicant’s dismissal was fair and that it should stand.
24. Learner A testified as follows in absentia in her evidence in chief: Mr Kova was provided with certain questions posed by the respondent’s representative, which Mr Kova reported on as follows: She was in M M Mateza Primary School in grade 7 during 2018 and was currently in Mizamo High School. Her class teacher in 2018 was Mr Mpinda. She enjoyed school in 2018 and knew the applicant as their Technology teacher. She knew the reason why she was present at the arbitration, and explained what happened on the particular day. They were writing exams with Mr Mpinda. Mr Mpinda left and went to the toilet after they finished writing. The applicant came into their classroom saying he wanted chairs taken from his classroom. He took the chairs from other learners and came to her when she told him that she got her chair from the principal. The applicant then left the classroom and returned with a pink pipe. He then hit her with the pipe and left the class with the chair she was seated on. After the applicant left she went to see the principal who instructed her to return to the class and that he would come to see her there. She returned to the class because they were going to write the applicant’s technology exam. When the principal came to the class later she told him what happened. The principal told her to come to his office after school to give her parents’ details so that he could call them. When she returned to the classroom the applicant entered and handed out papers. When the applicant got to her he said something that she did not hear and he then hit her with a paper in her face. After they finished writing she went back to the principal to give her parents’ details. The principal told her that she and her parents must come to the school the next morning, which they did. The following morning the principal told her grandparents what happened. She could not remember what her grandparents responded, whereafter they went home. There was no other conversation between her and the applicant after the incident with the chair. The applicant hit her on the thigh three times with the pipe. The effect of him hitting her on the thigh was that she felt pain and cried. There were three marks on her thigh and she did not go to the doctor or clinic because it was no longer painful by the time she got home. She did not show the marks to anybody else because she was afraid of showing it to anyone. The whole class saw the applicant hitting her with the pipe and the paper in the face. She knew Learner D since he was a fellow learner and they were in the same class. Learner D was present and at school the day of the incident. She knew Mr Mpinda as her class teacher. The applicant had hit her on the right thigh. The matter was not reported to the police since she did not know she must report it to the police. She responded to the statement that the applicant denied that he ever hit her with the pipe or paper in the face that there was no need for him to deny this since there are learners in the class and those seated at the desk, who saw him do this. Mr Kova reported that her demeanour was an expression of surprise when that statement was put to her. She did not feel good when she was hit with the pipe and paper. The reaction of the class when she was hit with the pipe and paper was that when she was hit with the pipe the boys in the back of the class, which included Learner D, said that she could not leave it like that and must report it to the office. Some of the girls also reacted because they did not like what the teacher did. She could not remember how they reacted to the paper incident.
25. Learner A testified as follows under cross-examination: Mr Kova was provided with certain questions posed by the applicant’s representative, which Mr Kova reported on as follows after the Panelist, Mr Kova, the two representatives and Ms Volkwyn-Frans left the room (the applicant was not present) to ask Learner A to demonstrate on record where the applicant was standing when he hit her with the pipe, during which she demonstrated that the applicant stood in front of her and with his left hand swung the pipe around and hit her with it on the right thigh: She waited for her class teacher (Mr Mpinda) to tell him what happened but he did not return until only when school was out to fetch his bag. She confirmed that the applicant stood in front of her and hit her on the right thigh with the pipe using his left hand. She cried when the applicant hit her. She did not know that if something like this happened, like being hit by anyone, that she must report it to the police, which is why she reported it to the principal. She responded to the statement that she was not honest because the applicant was a right handed person that she was used to seeing the applicant using his left hand therefore she did not know why he used his left hand when hitting her, which he did three times. The applicant was angry when he hit her. The applicant was not telling the truth if he said he never hit her, otherwise she would not have gone to the office. On how it was possible that the applicant could have hit her on the legs if he was sitting and her legs were covered by the desk she responded that when the applicant asked for the chair she stood up and pushed the chair behind her since he wanted to take the chair and she told him that he could not take the chair because she took it from the principal, which is when he hit her. The paper that the applicant hit her with was her two question papers which were stapled together. The time the applicant hit her with the pipe there were marks, but not from the paper, which marks on the leg are no longer visible. The desk that they were seated at was teacher’s (Mr Mpinda’s) desk. Because there was no place to sit Mr Mpinda had said that they could sit around his desk. She went straight to the principal’s office after the incident with the pipe and found him there. There were also other learners who got chairs from the principal, but she could not remember who because there were many of them. It was herself and four other learners who sat at the teacher’s desk.
26. No re-examination of the witness was required.
27. Learner B testified as follows in absentia in her evidence in chief: Mr Kova was provided with certain questions posed by the respondent’s representative, which Mr Kova reported on as follows: She attended M M Mateza Primary School in 2018 and Mr Mpinda was her class teacher. She knew the reason why she was present at the arbitration and that she came to testify to what happened that particular day when Learner A was beaten by the teacher. On that day they were with Mr Mpinda and preparing to write (exams). Mr Mpinda had left saying that he is going to the toilet. The applicant came in and said he wanted his chairs and then pointed at his chairs. When he got to Learner A’s chair she refused, saying that the chair was not the applicant’s chair. The applicant then left and returned with a pipe. He asked for his chair again from Learner A, and she still refused saying that it was not his chair. That is when she was hit on the thigh. Learner A then left to go to the principal. She returned and the applicant also came back handing out papers. When he was going to give Learner A her paper he hit her with it in the face. She could not remember how Learner A reacted when the applicant hit her with the pipe. The reaction from the class was that they were looking and were surprised. The body language and expression of the applicant when he was hitting Learner A was that of being serious and angry. She did not know if there were any utterances between the applicant and Learner A when he was hitting her. She could not remember where the chairs in the classroom were from. She was shocked when she saw Learner A being hit by the applicant. Her response to the statement that the applicant said he never hit Learner A was the he did hit her and he was lying, not her (Learner B). They must believe her because she saw the applicant hit Learner A, as well as the whole class saw it. They were seated at the same table and not doing anything at the time. She had no grudges against the applicant. The applicant was not her friend, but only a class mate. Her best friends were Learner C and two other learners.
28. Learner B testified as follows under cross-examination: Mr Kova was provided with certain questions posed by the applicant’s representative, which Mr Kova reported on as follows: She was in class 7E in 2018 and the applicant was one of her class teachers teaching Technology. Her teacher was not there at the time of the incident since he left saying he is going to the toilet. Learner A was seated next to her at the corner of the table. She could not remember on what side the applicant was standing from Learner A at the time of the incident with the pipe. The applicant hit Learner A on the thigh but she could not remember how many times. Learner A and another learner were seated with her at the teacher’s table. Learner A was standing when the applicant hit her. He was left handed so he used his left hand to hit Learner A. She was not sure if the whole class saw the applicant hit Learner A but the learners know about it. The applicant had already received chairs from the other learners before he came with the pipe and hit Learner A. She could not remember from where they took the chairs. She responded to the statement that the applicant was right handed and not left handed that she did not know then because when the applicant wrote notes on the board he used his left hand. She could not remember on which thigh Learner A was hit on.
29. No re-examination was required of the witness.
30. Learner C testified as follows in absentia in her evidence in chief: Mr Kova was provided with certain questions posed by the respondent’s representative, which Mr Kova reported on as follows: She was in grade 7E in 2018 at M M Mateza Primary School and Mr Mpinda was her class teacher. She knew the reason that she was at the arbitration as a witness to what happened in class in 2018, which was during exam time in either March or June. They were seated with their teacher in the class and waiting for papers to write. The teacher (Mr Mpinda) left saying he was going to the toilet and will be back. After Mr Mpinda left the applicant entered the class on his own. There was a shortage of chairs in their class. Many of the chairs in the class were faulty so many learners did not have a place to sit. The applicant wanted to take the good chairs. Some learners then gave him the chairs but Learner A did not give him her chair. They then had an argument because the applicant wanted her chair and learner A refused to give her chair to them. The applicant then left and came back with a pipe and another learner who came to collect the chairs that the applicant took. The applicant then went straight to Learner A and they were both talking loud and maybe the applicant became angry because of the backchat from Learner A since he then hit her. After the applicant hit Learner A she gave him the chair and he left. The applicant then returned with the Technology papers that they were going to write since he was teaching them Technology. The applicant gave them the papers starting from the front. She was one of those seated in front. After Learner A was hit she had no place to sit and moved to the back of the class. That was all that she saw since she had already received her paper and was reading it at the time it is said that Learner A was hit with a paper. She responded to the statement that the applicant said he never hit Learner A with the pipe that the applicant was covering for himself because he did hit her and the whole class saw it. As to how far she was seated from Learner A when she was hit with the pipe, she responded that Learner A was seated at the teacher’s (Mr Mpinda’s) desk and she (Learner C) was seated in front of the desk. It was possible for her to see the applicant hit Learner A. Her version should be believed since she saw and the whole class saw it happen, with no reason for her to lie about this. The applicant had never hit her either before or after the incident with Learner A. She knew Learner A as a classmate but not as a friend. She as well as the other learners in the class were very shocked and surprised that a teacher would hit a child on the body.
31. Learner C testified as follows under cross-examination: Mr Kova was provided with certain questions posed by the applicant’s representative, which Mr Kova reported on as follows: Her class teacher was Mr Mpinda and he said he was going to the toilet but she could not remember when he returned. Because they were writing exams the other learners were all seated by themselves except for the learners seated at Mr Mpinda’s desk. She did not sit far from Learner A when the incident happened because her desk was right in front of Mr Mpinda’s desk. There was a learner in their class identified as Learner D but she did not know if he was present during, or saw, the incident. They were with Mr Mpinda before they wrote Technology. Learner A had stood up and the applicant was standing in front of her. She just knew that the applicant hit Learner A on the body but cannot remember on what part of the body. She could not remember if the applicant was left or right handed and with which hand he hit Learner A. She was not sure if Learner D was in the class that day but if he was present he would have seen the incident. She was not sure if there was anyone invigilating the exam. She responded to the version that Learner D will testify that he was present and that the applicant did not hit Learner A but only pretended as if he wanted to hit her, that even if all the learners in the class were called they would tell the truth that the applicant did hit Learner A.
32. No re-examination of the witness was required.
33. Mr M Makasi, the Principal of M M Mateza Primary School, testified as follows under oath in his evidence in chief: He was currently the principal at M M Mateza Primary School which he joined on 30 July 2015. Prior to that he was head of department at Thembalethu High School and then the deputy principal at Tyholora Primary School in Thembalethu. He was aware of the charge against the applicant since it was reported to him by the learner concerned. The learner had reported to him that in the morning whilst they were ready for the work which was given to them that the applicant came in asking for his chairs. Apparently he also went to this learner, Learner A, and she responded that it was not his chair and that she got it from the principal. Learner A told him that the applicant insisted and went out of the class and returned carrying a pipe, whereafter he went to Learner A and ultimately hit her with the pipe. According to Learner A the applicant went out again and returned with the scripts (papers) which he issued to the learners and when he arrived at Learner A’s desk he hit her around the face with the question paper. As she was reporting this to him he recorded everything and explained the procedure to Learner A and told her that since she had to write the paper, she should return after she had finished writing so that he could be in a position to make arrangements for an appointment with her parents, which she did do. The parents did come to see him a few days after that and they apologised because there was an educator who had allegedly chased them away. He reported the matter thereafter to Labour Relations. He had no reason not to believe what the learner told him. He was referred to two previous complaints of assault against the applicant as contained in the respondent’s bundle of documents. He confirmed that he also reported these previous incidents to Labour Relations. To his knowledge the applicant was found not guilty of these two cases. He responded to the question on whether he could trust an educator with such behaviour of assaulting learners at his school, that given the experience of the previous incidents, which were recurring, he did not like such a person now being around learners. He could attest that the applicant was aware that they may not assault any learner or inflict corporal punishment, with examples provided of workshops and staff briefings on the subject. He had at no stage convinced the learner to report such an allegation against the applicant.
34. Mr Makasi testified as follows under cross-examination: When Learner A came to him on that day she was in tears. As to the seriousness of the the incident and why the learner was turned back to come back later he responded that he had attended to the learner’s report and the only reason he asked her to come back was to obtain the contact details of the parents to make an appointment and to explain the procedures to her. It also came to his attention that the learner was about to write a paper that day which is why she returned to the class. He did not know if the matter was reported to the police by the parents. There were exams on that day and also for that specific class. There was an invigilation timetable and people assigned to invigilate. Mr Mpinda was supposed to invigilate that class when the incidents occurred and it was alleged that another teacher, being the applicant, assaulted a learner twice by using a pipe and a paper. In the event that an educator needs to go to the toilet or out of the class there has to be an arrangement with the floor manager so that learners are not left unsupervised, with a register signed that someone else came in to supervise the learners. He explained the protocol for handing out furniture during exams, which is not repeated here. In the event of alleged abuse the normal protocol was that a learner may report the incident to a person that the learner will trust, such as another educator, who will know the procedure to be followed. The policy did not allow him to consult with the alleged perpetrator such as the applicant when an incident was reported. He does not participate in the investigation, but just reports it. He did believe what the learner said that the applicant really hit her, based on the previous incidents. According to the learner she was hit on the thigh. He responded to the question on what hand the applicant normally writes that he did not observe the applicant when he wrote, only when he typed on the computer. He did not have any personal vendetta against the applicant. He denied that he had a meeting with new educators in his office and that in that meeting there were pictures of the heads of teachers who were circled as targets. He only had a display of the educators, but he would never on a single day say to educators that somebody was a target and for what purpose. As a principal as far as staff matters were concerned he would say lets move on and enhance human relations.
35. No re-examination was required of the witness.
THE APPLICANT’S EVIDENCE
36. The applicant’s case was that in their view the applicant was not guilty of the allegations of misconduct brought against him. They furthermore believed that the applicant was treated unfairly and that there was a conspiracy against him, which they intended to prove. The applicant was also treated unfairly since no consultation was done by the respondent with the applicant parties since the applicant was a union shop steward and Regional Deputy Chairperson of SADTU before he was dismissed. Both procedural and substantive unfairness was alleged, with the relief sought of reinstatement.
37. Mr T Kika, the applicant, testified as follows under oath in his evidence in chief: Before he was dismissed he was an Educator at M M Mateza Primary School Post Level 1 since 1 July 2007 and was teaching Technology for grade 7 and Life Skills for grade 4, although he had taught other subjects before 2018. In 2018 he had worked for about three years under the current principal, who arrived at the school in 2015. He explained what happened to him being charged disciplinarily. It was on a Tuesday, either 12 or 13 June 2018 when assessments had already commenced with the exam timetable set for later or in the next week in term 2. According to the term plan that period was set for assessment but in that week no exams were taking place and exams were set for a week after that. The previous day he had left school early leaving his class grade 7D intact with all its furniture and chairs. When he returned the following morning shortly after 08h00 he found out that chairs had been removed from his class. He went next door to Ms Hlekiso’s class grade 7C who was a head of department and acted as floor manager for that block. He went to her as he thought the learners from 7C had taken the chairs since the whole school always had a shortage of furniture. She informed him it was not her class but that she saw the learners from 7E take chairs from his class to their classroom after he had left early the previous day. He went to grade 7E classroom and indicated the chairs which were removed from his class. At the time the learners were not quiet, but noisy and rowdy and shouting to him that it was not his chairs. Ms Hlekiso was standing at the door of her classroom carrying a pink water pipe less than a meter long and he asked her if he could borrow it. He returned to grade 7E to tell the learners to bring back the chairs, scaring them as if he was going to hit them. About three or four learners immediately gave back the chairs. Learner A was sitting in front in a two seater desk. Since there was a shortage of furniture in the school it often happened that there would be three or four learners sitting at a two seater desk. That day he could not remember how many learners were sitting with Learner A at the two seater desk, but she was sitting on the left hand corner of the desk behind the desk. He went and stood in front of the desk in front of Learner A and asked for the chair. Learner A refused and stood up saying she would not give him the chair because it was not one of the chairs taken from his class. He told her that it was one of the chairs taken from his class. He grabbed the chair and Learner A grabbed it as well. They both held on to the chair and he pulled the chair towards him and she pulled it towards her. He was using his left hand to pull the chair but he could not recall which hand she was using. He held the pipe that he borrowed from Ms Hlekiso in his right hand. He tried to scare her with the pipe to give him the chair but she still refused to give him the chair. He returned to his class to call a learner to fetch the other chairs which were given back by the other learners. At that time he had a Technology assignment prepared for them to write, like a project with practical and drawings that had to be drawn. He gave his class grade 7D learners the assignment and took a pack of assignments to Grade 7E for them to write. It was an assignment that each individual learner had to do on their own. When he handed out the papers to grade 7E Learner A was no longer at the front desk but seated in the third or fourth desk next to the wall on the left hand side (against the wall). He thought there were two learners seated at that desk, which included Learner A. He demonstrated how he tossed the paper to Learner A on the desk when he reached her. At the time that he threw/tossed the paper on the desk to her he was talking to her and said to her that she does not listen. After he gave them all the assignments he returned to his own class and continued there. He did not hit Learner A anywhere on the body with the pipe. He was holding the pipe in his right hand and pulling the chair with his left hand. He was standing in front of Learner A facing each other and he could not hit her with his right hand on her right thigh. He threw the question paper on the table and never hit her with it. He supposed that hitting a person is to inflict pain and did not know if hitting with a paper could inflict pain, which he did not do. He could not tell where Mr Mpinda was during both incidents. He did not see Learner A cry. He ultimately got the chair. He was not angry but was not happy. He could not tell exactly where Learner D was situated in the class from the incident but the boys normally sat in the back of the class. He was sure that Learner D was in the class at the time. He could not remember Learner B and where she was during the incident since he was unfortunately poor in recognising the faces and names of the learners in a class. He did not know anything about any marks on Learner A’s thigh. When he was presented with the charge sheet he could not remember who had laid the charge of assault against him and struggled to think, as he dealt with many learners. He could not recall this until the day of the pre-hearing meeting which day they were talking about. It was not true what Learner A and Learner C testified that he hit Learner A and that the whole class could see that he beat Learner A, and that they would say different things if they were all called to testify. If he had beaten Learner A she would have been injured and had marks that would have caused scars as proof of the beating. The damage that she alleged from being beaten three times on the same thigh would have been needed to be treated by a doctor or clinic. He could not have hit her with the left hand as he could not use his left hand to do anything since he is a completely right handed person who cannot use both hands. He confirmed again that Mr Mpinda was not present and that nobody was needed to invigilate or supervise that project because the learners could do it on their own and were allowed to take it home to finish provided they finished it in time. He could not prove whether the three learners who came and testified that he hit Learner A had something against him but it is possible that they could have come to the arbitration and told lies. There was no previous record nor incident between him and Learner A. The principal did not call him in relating to the incident and he only knew about it the day he was issued with the charge sheet and only knew for which incident it was on the day of the pre-hearing. He thought that the principal had a vendetta against him but could not prove it.
38. Mr Kika testified as follows under cross-examination: He stated that he was a honest person. He was concerned about the procedural issue and that the respondent did not consult with the union before instituting disciplinary action against him because he became a shop steward in 2013 and was elected as the SADTU Chairperson for the George Branch, which made him a local shop steward. The respondent had failed to consult with the Provincial Secretary to indicate that one of their shop stewards serving as Chairperson of the George Branch has been charged, as well as on the terms of the charge. He felt that he was prejudiced because the consultation had not taken place and could have changed how things were done. He responded to the respondent’s representative’s (Mr Jansen’s) statement that he only of the day of the pre-hearing meeting became aware that the applicant was a shop steward and that it had never come up on the previous two occasions when he also was charged for misconduct that he on the previous two occasions had entered into a plea bargain with the respondent and that there was no need for consultation since he agreed to being guilty to the charges he was charged for. He agreed that he did not understand to a certain extent how the consultation process in item 4 Fair Procedure of the LRA worked. The failure of the respondent to consult at the time prejudiced him and could have changed him from being charged. He recalled that Mr Jansen had at the pre-hearing meeting for the first time became aware that he, the applicant, was a shop steward and that Mr Jansen had asked whether they could have the consultation at that stage and that his representative had said that they could proceed with the pre-hearing without consultation. He also recalled that Mr Jansen made it clear that he would raise this with the presiding officer of the disciplinary hearing that the respondent had only became aware at the pre-hearing meeting that he was a shop steward and that consultation as prescribed in the LRA had taken place and that the presiding officer was to guide if the hearing was to proceed. He could not remember if Mr Jansen as the departmental representative had taken this up with the presiding officer at the disciplinary hearing. He was referred to the disciplinary findings of the presiding officer contained in the bundle of documents, in particular where it was stated that Mr Jansen (the respondent’s representative in the disciplinary hearing) placed on record that during the pre-trial hearing it transpired the respondent (in this case the applicant) had in the interim been appointed as a shop steward and the the pre-trial went ahead as both parties agreed that no prejudice would be suffered. He could not agree with this since he was not sure whether he knew then how consultation should have happened and he had agreed at the time to something that he was not aware of. At the time he was newly elected in the union’s regional office and was chairperson at branch level and did not necessarily represent members in situations like this. His SADTU representative in the arbitration helped him to complete the appeal. He agreed that in the appeal letter he did not mention problems with the finding and sanction but only concentrated on the fact that the respondent failed to consult with his union. He responded to the statement that the respondent did not consult but that it was agreed that the pre-hearing meeting continue without consultation, that he was in agreement with this but he was not sure then what consultation meant. He confirmed what happened the day of the incident as testified in his evidence in chief, all of which is not repeated again, with only certain aspects highlighted. He was used to primary school learners back chatting and telling him it was not his chairs since they did it all the time and he was not happy with it. He was not cross but not happy because they were rowdy and he had to raise his voice as they were rowdy and speaking loud. He agreed that he threatened them and said to them that if you don’t give me back the chairs I will beat you. He went to borrow the pipe from Ms Hlekiso and returned scaring them, after which three or four learners gave back the chairs. The fact that he had pleaded guilty on two previous occasions of misconduct (assault) should have been, and has been, a lesson for him when he went to fetch the pipe. He agreed that his last plea of guilty happened within six months of the incident he was charged for. He recalled that at the pre-hearing of the second previous case when a plea bargain was requested for him, that Mr Jansen had stated that he would ask a mandate for his dismissal if he assaulted another learner, based on that discussion. It would make sense that he would not plead guilty now since he could lose his job, but in this case he did not plead guilty. It was not in his nature to manhandle learners, especially female learners, with reference to the previous charges that he pleaded guilty to and entered into plea bargains for. Although he pulled the chair from Learner A with his left hand, when he testified he could not even use his left hand, it did not mean that it was paralysed, just that he did not write or do most things with his left hand because he was right handed. He agreed that he should not have become involved in pulling a chair with a learner and that it could have been a tragedy if the learner had lost control and hit her head against the floor, and that he could have prevented it, wishing that he should have just let it go. He new that assaulting a person directly or indirectly is assault. He did not know that even if he made as if he was going to hit Learner A that it would have been assault. He had thrown the paper to Learner A because she was sitting at the other end of the desk and he was in the passage. He reiterated that he did not hit Learner A on the face with the paper. Learner D would testify that he did not hit Learner A with the pipe and did not hit her with the paper. The class teacher Mr Mpinda, who was not present at the time of the incident and would testify for him, would indicate where the learners sit in the class and how the class looks since they said they were using the teacher’s (Mr Mpinda’s) desk. He did not put to the witnesses that he disagreed that they were sitting at the teacher’s desk because he was not leading the evidence and was waiting for his turn to testify. He was not bringing new evidence and it was the same as brought at the last hearing (the disciplinary hearing). He responded to the reference to his testimony in evidence in chief that that if the whole class came to testify that they would give different versions, that the learners who testified in the arbitration were different in some way and it therefore meant that they are lying. He did not see the need at the time to call more than one learner to testify for him. He was not a medical doctor nor a dermatologist and could not make the assumption about the extent of Learner A’s injuries if she had been beaten as alleged by her. He saw Learner D in the class that day since he gave him the paper. On the day in question Learner A was sitting at a two seater desk on the left hand side with about two or three other learners sitting with her but he could not recall who the other learners were. He agreed that Learner D testified in the disciplinary hearing that he would protect him, the applicant. He was not aware of having problems with Learner A when he was teaching her technology and he could not recall Learner B’s face. He did not agree that the three learners who testified were honest, he never had a problem with them and he did not know if they had a problem with him. He did not assault children on a regular basis and agreed that it was not in order to assault them. His honest opinion was that it was not right to keep an educator in the system working with learners who smacked and swore at learners. What he had learnt from these experiences was that it was not easy to discipline learners and he should just have let it go. He learnt after the previous two charges that it was a grave mistake as he should not have pleaded guilty and should have continued with the processes. As to why Learner A would be lying he unfortunately could not prove a conspiracy since he suspected that the principal had a vendetta against him and used the learner against him. He had heard the testimony of the learners at the disciplinary hearing and at the arbitration and did not agree that their testimonies remained the same same, with the difference being that Learner A had stated in the hearing that she was beaten on the left hand thigh and her testimony at the arbitration is that she was beaten on the right hand thigh. He repeated that he did not hit the learner on the body.
39. Mr Kika testified as follows under re-examination: He was referred to item 4 Fair Procedure of the Code of Good Practice: Dismissal of the LRA, which he confirmed did not happen to him as stated in those paragraphs.
40. Learner D testified as follows in absentia in his evidence in chief: Mr Kova was provided with certain questions posed by the applicant’s representative, which Mr Kova reported on as follows: He was in grade 7 in the class of Mr Mpinda in 2018. He knew why he was present in the arbitration and explained what happened on the day in question. They were in Technology class with the applicant doing practicals and making something like a cell phone tower. When the applicant arrived in the class he asked the learners to sit properly since they as boys were seated in the corner, after which they all sat properly. There were not enough chairs in the class and Learner A went to another quiet learner in the class and took her chair. This learner then went out to tell the applicant and when the applicant returned he held a pipe. The applicant asked who took the learner’s chair. Learner A was seated at the time and the other learner pointed at Learner A and said she took my chair. The applicant then went to Learner A to take the chair and she was refusing, so they were both pulling on the chair. The applicant was also holding a pipe and he made as if he was going to hit Learner A with the pipe and she let go of the chair. Learner A then went to sit down angry with tears in her eyes. Learner A’s friend went out of the class and Learner A went to sit down in her place with her hands folded and her head on her arms. The applicant then handed out the papers. At this time Learner A was still seated with her head on her arms. The applicant then threw the paper at her. The applicant normally used his right hand and held the pipe in his right hand.
41. Learner D testified as follows under cross-examination: Mr Kova was provided with certain questions posed by the respondent’s representative, which Mr Kova reported on as follows: He could not remember that he stated in the applicant’s disciplinary hearing that the applicant had hit Learner A with the exam script across the face, but just remembered about the applicant throwing the paper. How he knew that he had to attend the arbitration was that the applicant went to their home and told his mother. His mother told him the previous day that he had to be present at the arbitration, not the applicant. He had made a mistake when he testified in his evidence in chief that a learner complained that Learner A took her chair and that the applicant was right when he testified that he was looking for his chairs. He liked the applicant. He did not change his version from the disciplinary hearing when he testified that the applicant did assault Learner A with the paper and now testified that the applicant just threw the paper at Learner A, because at the time when the applicant threw the paper it hit Learner A.
42. No re-examination was required of the witness.
43. Mr M Mpinda, Educator at M M Mateza Primary School, testified as follows under oath in his evidence in chief: He introduced himself and confirmed his home address. He was a grade 7 IsiXhosa teacher who started in 2013 on the Curriculum Assessment Programme (CAPS). He had originally joined the school in 2006 and became permanent in 2009. He had previously worked with the applicant at Thembalethu Primary School, but they were not permanent at the time. He could not remember the year when he first met the applicant. Since Thembalethu Primary School until the present he could not remember there being any issues with the applicant relating to learners and colleagues, except for an incident just before the current one when the applicant apparently hit a learner. He was not sure whether that incident was at this school or at Thembalethu Primary School. He only became aware of the incident which happened in his class when he was shown the paper that the applicant was charged. He was not previously aware of the incident since nobody told him about it, neither the affected learner of the other learners. There had been some cases when learners had reported incidents to him, but he never had an incident like this one where a teacher hit a learner. He confirmed that he did not hear about the incident that happened in his class and was surprised when the applicant showed him the charge sheet. He explained the set up of his class room in 2018 and where his table was situated. The table was situated then in the area near the windows in the corner facing the door. The learners did not normally sit at his table when he was not there and it did not happen in his presence either since they know they are not supposed to do that. The bookshelf in the classroom changed early last year and was in a new place at the corner down the first row and sometimes in the opposite corner at the back of the class. He came to the classroom when the in loco inspection was being conducted to put his bags in the classroom but was told during the morning briefing that class 7E will be relocated to a different classroom and took the learners and their bags to the allocated classroom.
44. Mr Mpinda testified as follows under cross-examination: He had a problem in showing where his table was in 2018 since they were consistently moving the table around. He could not remember if the table was situated in front of the blackboard at the time as testified by the learners. He could not remember the day of the alleged incident but would have remembered it if the incident was reported to him since they had a book in which incidents are recorded. He became aware that he must attend the arbitration sometime during the previous week when the applicant confirmed the date with him after he had alerted him about a month ago to establish if he was still available. He was told to come and testify with respect to the incident that happened on the day in the class and he informed the applicant that he would not be able to say anything since he was not told anything by the learners in the class or the affected learners, because they maybe went straight to the principal. The principal should also have told him about what happened in the class. He did not know that the principal must inform the Department (the respondent) and nobody else when it comes to assault and thought that if something happened in class they will inform you as class teacher. He also did not remember the parents of this learner coming to complain about what happened at the school. .
45. No re-examination was required of this witness.
46. Comprehensive verbal closing arguments were presented by the parties and recorded by the Panelist. They are not repeated here for the sake of brevity, but have been taken into account in arriving at the award.
ANALYSIS OF EVIDENCE AND ARGUMENT
47. I am required to determine, on the balance of probabilities and in the circumstances of this case, whether the dismissal of the applicant, Mr T Kika, by the respondent, the Department of Education - Western Cape, for alleged misconduct was fair on both procedural and substantive grounds and to grant the appropriate relief if unfairness is found.
48. To first address procedural fairness. The applicant’s prime allegation of procedural unfairness was that as a SADTU shop steward the consultation as required in terms of Item 4 Fair Procedure of the Code of Good Practice: Dismissal of Schedule 8 of the LRA (the Code) was not complied with when disciplinary action was instituted against him by the respondent, which states as follows at sub-item 4(2):
Discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should not be instituted without first informing and consulting the trade union.
49. It is not clear what the nature of this consultation should be, with reference made to The Concise Oxford Dictionary, Seventh Edition, for guidance which inter alia defines “consult” as follows: have deliberations (with person), seek information or advice from (person, book); take into consideration (feelings, interests);
50. The inference is that consultation normally takes place before a decision is made in order for another party to give advice or express their views, or give their input on a subject.
51. Procedural unfairness on this basis was also the only issue which was raised in the applicant’s appeal of 7 November 2018 to the MEC for Education, to which was added Item 6 Dismissals and Industrial Action of the Code, with reference to sub-item 6(2) which commences as follows:
Prior to dismissal the employer should, at the earliest possible opportunity, contact a trade union official to discuss the course of action it intends to adopt.
52. It should be noted however that Item 6 relates to dismissals for misconduct for participation in unlawful industrial action (strikes), which does not apply in the applicant’s case.
53. In the appeal letter it was pointed out to the MEC that the applicant was an elected Shop Steward and also Regional Deputy Chairpeson for the South Coast Region, which covered George, Knysna, Mossel Bay, Plettenberg Bay and Riversdale. It was noted that proof of the applicant’s status with SADTU was not presented at the arbitration.
54. It is common cause that the appeal was rejected by the MEC Ms D Schäfer on 4 February 2019 and was received by the applicant on 8 February 2019, thereby confirming the applicant’s date of dismissal as being 4 February 2019.
55. The respondent had conceded that the consulation referred to in Item 4(2) of the Code had not taken place before the applicant was charged for alleged misconduct since they were not aware at the time, or when he was previously charged disciplinarily, that he was a SADTU shop steward or Regional Chairperson of SADTU and had been so since 2013 or 2015. Under cross-examination the applicant had conceded that Mr Jansen, who was appointed as the departmental representative in his pre-hearing meeting and disciplinary hearing and also acted as the respondent’s representative in this arbitration, only became aware that he was a union official at the pre-hearing meeting convened on 17 September 2018. The purpose of this pre-hearing meeting as set out in the notice of disciplinary hearing issued to the applicant on 24 August 2018 was explained as follows:
The purpose of the meeting is to clear up any relevant issues or questions that you may have and to exchange evidence. Also note that nothing that is discussed at this pre-hearing meeting will be admissible in the disciplinary hearing unless the contrary is expressly agreed upon between yourself and the respresentative of the employer….
56. The applicant also conceded that he and his representative agreed to continue with the pre-hearing meeting at the time and that it would suffice as consultation. Unfortunately a record of the pre-hearing meeting and who was present was not available at the arbitration. He also conceded that the matter of his union status and that consultation had been dispensed with was brought to the attention of the presiding officer of his disciplinary hearing by Mr Jansen, who was also the departmental respresentative in his disciplinary hearing, and that he agreed to continue with the hearing, with reference to the following paragraph extract of the presiding officer’s disciplinary findings:
No points in limine were raised. Mr Jansen placed on record that during the pre-trial hearing it transpired the Respondent (the applicant in this arbitration), being (sic) appointed as a shop steward. The pre-trial went ahead as BOTH parties agreed that no prejudice would be suffered.
57. The applicant however contended that he had agreed to something at the time when he was not fully aware of how the consultation should have been conducted and believed that he was prejudiced because the consultation process with his union had not taken place. He responded to the respondent’s version that he as a union official should have been aware of the requirements of the LRA, that he had not occupied a position where he had to represent employees in internal disciplinary proceedings and was therefore not fully familiar with all the applicable requirements of the LRA. It is noted that the applicant was represented by a union representative Mr Nopondwana at the disciplinary hearing after the first sitting of 18 September 2018 was postponed for the purpose of him obtaining permissible representation. Reference was also made that the applicant had a representative present when the issue that he was a shop steward was raised at the pre-hearing meeting. It is curious that neither of these representatives also objected at the time that the processes should not continue until the required consultation had taken place with the union, which implied that they agreed that consultation could be dispensed with. The respondent submitted that in the circumstances no prejudice was suffered by the applicant and would not have prevented him from being charged disciplinarily, whilst the applicant submitted that he was prejudiced due to this lack of consultation which could have led to a different course of action.
58. To next turn to substantive fairness. From the outset I am aware that this matter poses the particular challenge of the testimony of child witnesses as defined in the Childrens Act 38 of 2005 (the CA) and the application of the principle of the best interests of the child as contained in section 28(2) of the Constitution of the RSA, which even if not raised by the parties I am still bound to consider, as well as the reliability and credibility of the evidence presented by the parties’ witnesses and the probability of the parties’ respective versions.
59. I am also mindful of the charge brought against the applicant to which he had pleaded not guilty in his disciplinary hearing and of which he was found guilty of and led to his dismissal, and is repeated here for ease of reference:
It is alleged that you are guilty of misconduct in terms of Section 18(1)(r) of the Employment of Educators Act, 76 of 1998, in that on or about June 2018, you assaulted learner “A”, a learner at M M Mateza Primary School, by:
a) Hitting her with a pipe on the leg; and/or
b) Hitting her with an exam paper across the face.
60. Section 18(1)(r) of the Employment of Educators Act 76 of 1998 as amended (the EEA) under Chapter 5 Incapacity and Misconduct relating to serious misconduct, reads as follows:
18. (1) Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she-
(r) assaults, or attempts to or threatens to assault, another employee or another person;
61. I also refer again to the facts which were established and agreed as being in dispute in the pre-arbitration minute and confirmed at the commencement of the arbitration, which are as follows:
Whether the Applicant was guilty or not of the alleged transgressions since he denied committing the conduct that he was charged for.
Whether the Applicant was present in the class when the examination took place and had issued the examination/test papers relating to the complaint regarding the examination paper.
Whether in the circumstances the dismissal was substantively unfair.
62. This dispute therefore turns around whether the applicant had, on the balance of probabilities, assaulted Learner A in or around June 2018 by hitting her on the leg with a pipe and/or hitting her with an examination or test paper across the face, which is the evidence which will accordingly be focused on in determining this matter, since it became evident during the arbitration that the applicant was present in the class when the examination/test took place since he testified to handing out the papers to the class 7E learners, which included Learner A.
63. It is unfortunate that this dispute had taken such a long time to reach its resolution since the incident occurred around June 2018 and the finding of dismissal was confirmed by the MEC on 4 February 2019, including the intervening COVID-19 lockdown, with the inevitable challenges to witnesses’ recall of the detail that had transpired at the time of the alleged incidents. This will be taken into consideration in the evaluation of their evidence.
64. In deciding this matter it is also necessary for me to address the unavoidable issue of credibility, since material factual disputes emerged during the arbitration.
65. In Marapula & Others v Consteen (Pty) Ltd  8 BLLR 829 (LC) at 837 C – F the Court said the following in relation to the evaluation of evidence and the discharge of the onus by an employer:
“The onus is on the employer to prove that the dismissal was fair (section 192 of the LRA) on a preponderance of probability. In my opinion, the onus is discharged if the employer can show, by credible evidence, that its version is the more probable and acceptable version. The credibility of witnesses and the probability or improbability of what they say should not be regarded as separate enquiries to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the employer’s version, an investigation where questions of demeanour and impression are measured against the content of the witnesses’ evidence, where the importance of any discrepancies or contradictions are assessed and where a particular story is tested against facts which cannot be disputed and against the inherent probabilities, so that at the end of the day one can say with conviction that one version is more probable and should be accepted, and that therefore the other version is false and may be rejected with safety.”
66. Assessing credibility is however not a matter of comparing the number of witnesses on one side with the number presenting an opposing version. I have to weigh up all the evidence in order to decide whether it was reliable or not and whether the truth was told, despite any shortcomings. In order to reach a just verdict based on the truth, I must be able to consider all the relevant admissible evidence. For this reason the basic principle in evaluating evidence is that evidence must be weighed in its totality. In this regard Navsa JA in S v Trainor 2003(1) SACR 35(SCA) at 41b-c said the following:
“A conspectus of all evidence is required. Evidence that is reliable should be weighed alongside such as may be found to be false. Independently verifiable evidence, if any, should be weighed to see if it supports any of the evidence tendered. In considering whether evidence is reliable, the quality of the evidence must of necessity be evaluated, as must corroborative evidence, if any. Evidence, of course; must be evaluated against the onus on any particular issue or in respect of the case in its entirety....”
67. When evaluating or assessing evidence, it is therefore imperative to evaluate all the evidence, and not to be selective in determining what evidence to consider. As Nugent J (as he then was) in S v Van der Meyden 1999 (1) SACR 447 (W) stated at 450:
“What must be borne in mind, however, is that the conclusion which is reached (whether it be to convict or to acquit) must account for all the evidence. Some of the evidence might be found to be false, some of it might be found to be unreliable, and some of it might be found to be only possibly false or unreliable, but none of it may simply be ignored.”
68. From the aforementioned it is therefore clear that the evidence must be assessed in its totality in order to arrive at a meaningful conclusion.
69. Bearing the foregoing principles, opinions and cautions in mind, I will attempt to apply these principles, rules and guidelines to assess the evidence of the parties’ witnesses, as relevant to the main facts in dispute, without going into the detail of all the evidence of the parties’ witnesses. With respect to the evidence which was presented, the following was noted from the testimony of those persons who were direct witnesses to what had transpired:
70. Although all the respondent’s three learner witnesses did not agree (or could not comment if they did not witness a particular incident) on all the details of the events, such as whether the applicant was left or right handed, or in which hand the applicant was holding the pipe when he allegedly hit Learner A or whether she was hit on the leg or elsewhere on the body, they were all ad idem that the applicant did indeed hit Learner A with the pipe on the body, regardless of in which hand the pipe was held or on what part of the body she was hit. Regarding the examination or test/assignment paper incident Learners A and B were consistent in what occurred at the time and that the applicant hit Learner A across the face when he handed out her paper to her. Learner C could not comment as she did not witness that incident with the paper since she in her version was already studying her paper and was seated in front of Learner A after Learner A had moved to sit further back in the classroom behind her. All three learners were consistent during the in loco inspection as to where they and the relevant furniture (desks and chairs) were positioned. Any minor discrepancies in their evidence should therefore be ascribed to the passing of a considerable period of time and their consequent lack of recall of all the detail of the events.
71. The applicant however presented a different version to the respondent’s learner witnesses. He testified that he did hold the pipe, but in his right hand and not his left hand as testified by Learner A since he was right handed and not left handed. He further testified that he only threatened Learner A to scare her to hand the chair to him and did not hit her at all, which was corroborated by Learner D in his evidence. With respect to the incident with the examination or test paper, his version was that he threw or tossed it across to Learner A since she was sitting at the end of a desk against the wall as he had also indicated in the in loco inspection (which was a different desk in a different row as to what Learner A had indicated during the inspection) because he was in the passage between the rows of desks and that there was another learner seated next to Learner A, denying that he hit her with the paper in the face and that she furthermore could not see him since she was seated with her head resting on her folded arms. He had also testified and indicated during the in loco inspection that the applicant and other learners were not seated at the teacher’s desk, which was in a different location as to what they had identified, and that Learner A was seated with other learners at one of the normal two seater desks in the front of the class. Learner D corroborated this evidence by indicating during the in loco inspection that Learner A was not seated at the teacher’s desk and that the teacher’s desk was in a different location to which the other learners had testified to. What is of concern relating to the credibility of the applicant’s evidence was that the applicant never put to the respondent’s learner witnesses during their cross-examination pertinent elements of his evidence which they should have been entitled to respond to, such as that he and Learner A had a tug of war of tussle with the chair that he contended belonged in his class, and that he disagreed with their testimony as to where the teacher’s table was located at the time of the incidents, as well as where they were seated, which was only introduced during his evidence after the respondent’s case was already concluded. This was after myself as the Panelist had at the outset of the proceedings reminded parties that versions needed to be put to witnesses when they testified.
72. Learner D who was called to testify for the applicant, also stated that the applicant and Learner A had a tussle with the chair and that the applicant did not hit Learner A but merely threatened her with the pipe. Learner D’s version of the issue with the chair however differed from both the applicant and the other learners who testified, namely that another learner had complained that Learner A had taken her chair, to which the applicant had responded to, and not that the applicant came to find the chairs taken from his classroom. When this contradiction was pointed out to him during cross-examination he responded that the applicant’s version was correct and that his was wrong. Learner D eventually also agreed in cross-examination that the applicant had assaulted Learner A by throwing the paper to her and that it her on the face when he did that, similar to what he had testified in the applicant’s disciplinary hearing. During the in loco inspection Learner D indicated that he was sitting in the middle of the desk at the back of the row on the left hand side of the classroom, whereas Learner A indicated that he was seated in the back at the desk on the right hand side of the classroom and the applicant was not sure at which desk Learner D was seated, which was either at the back of the row on the right hand side or the row next to that in the classroom. His positioning is relevant as to whether he could observe what had taken place since he may not have seen from the back of the classroom what transpired at the front and whether the applicant had merely gestured with the pipe or had hit Learner A with the pipe.
73. The other two adult witnesses were not directly involved in the incidents and only testified to what was reported to them. The principal, Mr Makasi, confirmed Learner A’s version that she was hit by the applicant on the thigh with the pipe, which she reported to him directly after the incident and that she was in tears and distressed by it. The incident with the paper happened after she returned to the class, which only came to his attention afterwards. In terms of the respondent’s internal protocol he reported the incidents to Learner A’s parents (in this case her grandparents) and to Labour Relations and was not allowed to discuss it with the alleged perpetrator. He also testified that he had no personal vendetta against the applicant. Mr Mpinda, the class teacher for 7E in whose classroom the incidents took place confirmed that he was not present at the time of the incidents and only became aware of the incidents when the applicant showed him the charge sheet. He was surprised that he as the class teacher was not informed at the time of what had transpired and was not aware that the principal could not discuss it with anybody else except Labour Relations. The principal had testified that classes may not be left unsupervised, even when educators wanted to visit the toilets, and that arrangements should be made with the floor manager for somebody else to supervise a class in their absence. Learners A, B and C had all testified that Mr Mpinda left to go to the toilet and was not present at the time of the incidents, with Learner A testifying that she waited for Mr Mpinda to report to him what happened and that he only returned when the school was out to fetch his bag. It was unclear what arrangements were made in Mr Mpinda’s absence to supervise his class and it is probable that the incidents could have been avoided if another person was present when the applicant came to classroom 7E to look for the chairs removed from his classroom. In the circumstances Mr Mpinda could not assist with material evidence as to the incidents which had taken place in his classroom.
74. Because of the contradictions that came to the fore and the red herrings that cropped up in the evidence presented by the four learner witnesses and the three adult witnesses, commonalities and probabilities were sought, as well as where the evidence of the respective witnesses corroborated one another. The main ones were established to be the following:
• That Learner A and the applicant had an altercation surrounding the chair which she alleged came from the principal and not the applicant’s classroom.
• That the applicant returned to the classroom with a piece of plastic water pipe obtained from another educator after Learner A refused to relinguish the chair to him.
• That the applicant either threatened Learner A with the pipe or hit her with the pipe, with Learners A, B and C testifying that Learner A was hit with the pipe by the applicant on either the leg or elsewhere on the body.
• That Learner A was standing, defending the chair at the time of the pipe incident.
• That Learner A was seated in the front of the class with other learners, whether it was at the teacher’s desk or at a normal two seater desk at the time of the chair and pipe incident.
• That the applicant got the chair back.
• That the applicant was not happy, possibly angry, when Learner A refused to give the chair to him.
• That Learner A was distressed and cried as a result of the incident with the pipe, which she reported to the principal.
• That the applicant either threw the examination/test paper at Learner A or had hit her across the face with the paper in his hand, with both Learners A and B testifying that the applicant hit Learner A with the paper across the face and Learner D testifying that the paper hit Learner A when the applicant threw it at her.
• That during the in loco inspection all parties indicated that Learner D was seated at the back of the classroom.
75. No substantive motives could be found as to why the respondent’s witnesses would fabricate their versions. Learners B and C also confirmed that they were not friends with Learner A but only classmates. All three learners testified that they did not have any previous problems with the applicant, who also confirmed that he was not aware of any problems experienced with the three learners. There was therefore no reason for the learners to fabricate versions to either support that of Learner A or to incriminate the applicant. The learner witnesses testified in absentia and were only present by agreement during the in loco inspection in the presence of the applicant. Learner A’s disbelief as to the applicant’s version of events during the in loco inspection was also apparent.
76. The applicant, however had a strong motive to deny the allegations against him as he conceded in his own evidence that he regretted having pleaded guilty to the previous two incidents of alleged assault when plea bargains were negotiated and should have rather have subjected himself to the internal disciplinary process. He also recalled that Mr Jansen as the departmental representative in those two previous charges had put him on notice that if he would request the applicant’s dismissal from the presiding officer if he was found guilty again of a similar offence.
77. Findings are based on the balance of probabilities, with only brief reasons supplied as required in section 138(7)(a) of the LRA.
78. I am fully aware that the onus of proof is on the respondent in this matter. However, despite certain instances of apparent inconsistency in the evidence presented by the respondent’s learner witnesses, I have already expressed my doubt as to the probability of the applicant’s version of what transpired in June 2018. The balance of probabilities therefore support that the applicant was guilty of the charges ascribed to him and that his actions did constitute assault against a learner. In the applicant’s own version he stated that he threatened Learner A with the pipe as if he was going to hit her, denying that he had actually executed that action or had physically assaulted her with the pipe, with Learners A, B and C testifying that he did indeed make actual physical contact with the pipe. In his version he had also thrown the examination or test paper towards Learner A, but denied hitting her across the face with it, although his witness Learner D viewed this as assault since the paper when thrown had hit Learner A in the face. That action alone in his own version would have shown disrespect and caused humiliation and stress to the learner. The version of all the learner witnesses, including the version of the applicant’s own witness Learner D, as well as that of the principal, was that Learner A was distressed and in tears after the incident with the chair and pipe.
79. As to what constitutes assault, guidance is sought from The Concise Oxford Dictionary, Eighth Edition which inter alia defines “assault” as follows: a violent physical or verbal attack; in law an act that threatens physical harm to a person (whether or not actual harm is done). This implies that an element of actual or threatened physical harm should be present in the action perpetrated. To this could also be added emotional harm and distress, which it was evident was caused to Learner A as a result of the applicant’s conduct.
80. Due to the nature of this matter, the best interests of the child require to be highlighted again, since the child must be considered before a decision affecting his or her life is made, as provided for in section 28(2) of the Constitution of the RSA and section 8 of the Childrens Act 38 of 2005 (the CA). As mentioned earlier, even if this is not pertinentely raised by the parties in an arbitration I am obliged to consider the best interest of the child in arriving at the appropriate award. Prof Adriaan van der Walt in a paper titled The Principle of the Best Interests of the South African Child delivered on 9 September 2016 states as follows: “Taking into account that section 28(2) constitutes a right, all organs of state must respect, protect, promote and fulfil the best interest of a child or children in general”. Section 8 of the CA also provides as follows: “In all matters concerning the care, protection and well-being of the child the standard of the child’s best interests is of paramount importance and must be applied.” By stating that the child’s best interests are of paramount importance it means that they can trump the rights and interests of persons older than 18 years of age. Van der Walt continues to define the best interests of the child as follows: “Basic interests, for example [in] physical, emotional and intellectual care; developmental interests [in entering] adulthood as far [as] possible without disadvantage; autonomy interests, especially the freedom to choose a lifestyle of their own. “
81. Based on the supporting evidence presented in the arbitration I find it improbable that learners A, B and C had fabricated the allegations against the applicant. The principal in his evidence had corroborated that Learner A had reported the incident of the pipe to him at the time that it occurred and afterwards that of the paper in the face, and it is improbable that he would have also fabricated that version. The allegations that the principal had a vendetta against the applicant and wanted to expedite his demise at the school were found to be unsubstantiated. It is more likely than not that the allegations against the applicant are true and I therefore find the respondent’s version more probable as to the true state of events and am accordingly satisfied that the respondent has discharged the onus to prove that the applicant was guilty of assaulting Learner A in the manner described in the charge against him for the two incidents that occurred in June 2018 at M M Mateza Primary School.
82. Section 18(3) of the EEA provides a range of sanctions which can be imposed if an educator has been found to to have commited misconduct as contemplated in subsection (1). It was common cause, and confirmed in the admitted documentary evidence, that the applicant had received two final written warnings for similar charges, the first on 31 October 2017 valid for six months with a fine of R3000.00 payable over ten months based on a plea bargain agreement after he was charged for allegedly assaulting a learner by hitting him with the fist and swearing at him. The second final written warning was issued on 10 May 2018 valid for six months with a fine of R5000.00 payable over six months based on him pleading guilty at a disciplinary hearing held on 9 May 2018 after he was charged for allegedly assaulting a learner by hitting her with his flat hand in her face and on her arm repeatedly. The latter final written warning was still in force at the time of the incidents that the applicant was charged and dismissed for. Due to the seeming repetitive nature of the applicant’s transgressions of alleged assault against learners the possibility that such conduct may be repeated in the future cannot be ruled out and would be an important risk factor for the respondent. It is also noted that assault against a learner could attract the sanction of dismissal on the first occasion in terms of the EEA, therefore the applicant was given ample opportunity to manage and correct his conduct prior to the most recent incident and was aware of what the consequences of further transgressions of this nature would be.
83. As a result of what had transpired in these incidents and being mindful of the interests of the child, and the damage that such conduct can cause for the respondent as a public institution to which the wellbeing of learners are entrusted, I find insufficient justification to set aside the sanction of dismissal. Reference is made again to the principle that the best interests of the child remain paramount, as held by the Constitutional Court in Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BCLR 761 (CC) that Section 28(2) of the Constitution of the Republic of South Africa imposes an obligation on all those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions. This consequently also binds Arbitrators or Panelists in a forum such as this to give consideration to the effect their decisions will have on children’s lives, and learners collectively, when they decide on the fairness or otherwise of the dismissal of an educator and, even if unfairness is found, that an educator should not be re-instated or re-employed if this will have a detrimental effect on the well-being and safety of learners.
84. In the circumstances I find that the applicant’s dismissal is fair on substantive grounds.
85. With respect to the allegations of procedural unfairness, reference is again made to item 4 Fair Procedure of Schedule 8 Code of Good Practice: Dismissal of the LRA (the Code) which states as follows under sub-item 4(2):
Discipline against a trade union representative or an employee who is an office- bearer or official of a trade union should not be instituted without first informing and consulting the trade union.
86. It was not disputed that the respondent was not aware that the applicant was an elected shop steward and office-bearer of the union SADTU at the time he was charged disciplinarily for the transgressions that he was dismissed for. The respondent’s version was also not disputed that when this issue was brought to their attention for the first time in the applicant’s pre-hearing meeting and when it was raised again at the applicant’s disciplinary hearing, that the parties agreed to continue when the respective hearings, during which both processes the applicant was represented. Despite the agreement that was initially reached by the parties present in the pre-hearing meeting, of which a record was not available in the arbitration, it would have been prudent for the respondent to have suspended that process and still engaged in the envisaged consultation with the relevant SADTU officials before issuing the notice of the disciplinary hearing to the applicant so as to not attract allegations of procedural unfairness against a trade union official or office-bearer after the event. No proof of the applicant’s appointment as a SADTU official or office-bearer was however presented in the arbitration aside from the reference in the content of the appeal letter to the MEC. The applicant’s own evidence supported that the respondent attempted to remedy this omission from outset when they became aware of the applicant’s status in the union, although perhaps not in the manner intended by the LRA. I am therefore not persuaded that the applicant was prejudiced in the manner in which the respondent dealt with this issue and that this did not contribute to rendering the entire procedure unfair.
87. Since these were the only grounds on which procedural unfairness was alleged, I find in the circumstances that the applicant’s dismissal was also procedurally fair.
88. I am accordingly satisfied that the respondent had discharged the onus, on the balance of probabilities, to prove that the applicant’s dismissal was fair on both procedural and substantive grounds.
89. The dismissal of the applicant, Mr T Kika, by the respondent, the Department of Education- Western Cape, is found to be fair on both procedural and substantive grounds and the matter is accordingly dismissed.
90. No order as to costs is made.
Panelist: A C E Reynolds (Ms)