Case Number: ELRC 702-19/20 EC
Province: Eastern Cape
Applicant: Azile Mbokhwe
Respondent: Department of Education Eastern Cape
Issue: Unfair Dismissal - Misconduct
Award Date: 9 February 2021
Arbitrator: M.A. HAWYES
Case Number: ELRC 702-19/20 EC
Commissioner: M.A. HAWYES
Date of Award: 09 February 2021
In the ARBITRATION between
Eastern Cape Department of Education (Respondent)
Union/Applicant’s representative: Attorney: Mr Mzukisi Ntlonze
Telephone: 081 511 8003
Telefax: 078 988 7970
Respondent’s representative: Mr T.W (Walter) Henna
Telephone: 084 821 3734
DETAILS OF HEARING AND REPRESENTATION
1. The case was scheduled for arbitration and conducted exclusively via online media (Zoom) on the 27th October 2020, the 18th January 2021 and the 22nd January 2021. The process was plagued with serious connectivity issues throughout as is often the case in matters conducted in this way.
2. The parties requested and were granted the opportunity to submit written closing arguments by the 29th January 2021. Both sets of written arguments were timeously received and my award now follows.
3. Mr. Mzukisi Ntlonze, an attorney, represented the Applicant, Azile Mbokhwe.
4. Mr Walter Henna, a Labour Relations official, represented the Respondent, Department of Education: Eastern Cape.
ISSUE IN DISPUTE
5. Whether the Respondent’s dismissal of the Applicant was substantively fair. Procedural fairness is not in dispute.
BACKGROUND TO THE ISSUE IN DISPUTE AND COMMON CAUSE FACTS
6. The Respondent employed the Applicant as a PL 1 educator at Marelane Senior Secondary School teaching Mathematics from 2016 until her dismissal in 2019.
7. Mr Magwaca was employed as an HOD at the same school.
8. The Applicant had summoned learners, including the complainant learner AM, to attend extra afternoon lessons. AM did not attend and the following day was told to report to Magwaca.
9. It is common cause that Magwaca administered three lashes on the inside (palm) of AM’s right hand with a stick. The Applicant also administered a number of lashes with a stick on the Applicant’s right hand.
10. Magwaca was charged for misconduct (administering corporal punishment) i.t.o section 18 of the Employment of Educators Act, no 76 of 1998 (as amended) (EEA) and the Respondent charged the Applicant with a contravention of section 17 (1)(d) of the EEA (assault with intent to do grievous bodily harm).
11. Magwaca received a three months unpaid suspension from work sanction and the Applicant was dismissed.
12. The Applicant submits that her dismissal is substantively unfair on the ground that the sanction that she received is inconsistent with the sanction that Magwaca received.
13. The Applicant prays for reinstatement and asks that she be given the same sanction as Magwaca.
SURVEY OF RESPONDENT’S EVIDENCE AND ARGUMENT
14. The Respondent lead the evidence of three witnesses namely Mr. T. Makina (The disciplinary chairperson in the Applicant’s case), AM (the learner complainant) and Ms. Thadazale Ntonga (the complainant’s guardian).
15. AM testified, amongst other matters, that on the 9th May 2018, both Magwaca and the Applicant disciplined her for not attending extra Maths afternoon classes the previous day.
16. AM testified that Magwaca administered three strokes with a stick to the palm of her hand. The Applicant, later back in class, instructed AM to put her hand on the desk and proceeded to administer 15 lashes on the back of her right hand. AM pulled her hand away and the Applicant said because of that she would start again. The Applicant then gave AM another 20 strokes on the back and palm of her hand. A little while later the Applicant, in her wisdom, decided to hit the Applicant another 20 times with the same stick for the same infraction.
17. Ntonga noticed that AM’s hand and arm were severely bruised when she arrived home and she proceeded to bandage same.
18. Later the Applicant and her husband took AM to the doctor and a diagnosis was made that that the Applicant had fractured bones in her right hand. She was put into a plaster of paris cast for over a year.
SURVEY OF APPLICANT’S EVIDENCE AND ARGUMENT
19. The Applicant testified under oath and called no additional witnesses although the affidavits of two character witnesses were handed in at one point during the arbitration.
20. During her testimony the Applicant deposed that she had only administered two lashes to the back of AM’s hand. She described the stick as being approximately two to three centimeters in diameter. When questioned by myself she stated that she had obtained the stick from Magwaca.
ANALYSIS OF EVIDENCE AND ARGUMENT
21. AM and the rest were good witnesses and remained consistent in respect of the information they had to convey. The Applicant was not a particularly good witness and her evidence lacked coherence and detail. It is also inherently improbable.
22. Although it is clear that AM and Ntonga have made peace with the Applicant and her family about what happened this should not distract from the basic construction of the facts.
23. It is common cause that Magwaca only administered three strokes to AM’s palm. The Applicant testified that she administered two strokes to the back of AM’s hand. This is improbable.
24. Given the extent of the swelling and the diagnosis of broken bones it is more probable that additional strokes were administered to cause the said injuries. I thus accept AM’s testimony and find that the Applicant struck AM’s hand 55 times.
25. Given the severity of the assault on AM the Respondent correctly charged the Applicant with the more serious contravention of section 17 (1) (d) of the EEA.
26. The facts of Magwaca’s corporal punishment and the assault of the Applicant are at odds and cannot be reconciled with the parity principle. Thus the Respondent did not act inconsistently in charging and disciplining the Applicant in the way that it did.
27. The dismissal of the Applicant, Azile Mbokhwe was fair.
28. The Applicant is not entitled to any relief.