Case Number: PSES 876-19/20WC
Province: Western Cape
Applicant: NADIA FORD
Respondent: WESTERN CAPE EDUCATION DEPARTMENT
Issue: Unfair Dismissal - Misconduct
Award Date: 9 February 2021
Case No: PSES 876-19/20WC
In the matter between
NADIA FORD Applicant
WESTERN CAPE EDUCATION DEPARTMENT Respondent
HEARD: 17 November 2020; 21 January 2021
DATE OF AWARD: 9 February 2021
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing concerning an alleged unfair labour practice took place over a period of two days,17 November 2021 and 21 January 2021 on the Zoom Virtual Video Conferencing platform. The applicant was represented by Advocate Craig Bosch instructed by attorney Ms Giddeon. The Respondent was represented by Ms Verna Phillips, a labour relations official within the Labour Relations Directorate of the Respondent. An intermediary, Mrs Mark Phillips was also present.
2. One bundle of documents was submitted as evidence.
3. In keeping with ELRC policy, the names of the minor learners that testified is withheld. They shall be referred to as learners “A” and “B”. Learner B testified on behalf of the applicant and learner A testified on behalf of the respondent.
4. The parties submitted their closing argument in writing, the last of which was received on 1 February 2021.
ISSUE TO BE DECIDED
5. I must decide whether the respondent committed an unfair labour practice in finding the applicant guilty of misconduct and sanctioning her for it. Applicant seeks to have the Final Written Warning imposed on her to be expunged and for the fine in the amount of R6000 that was imposed on her to be repaid to her.
6. During 2019, the applicant was employed by the respondent as an educator at Harmony Primary School. She taught grade 1 at that time. Prior to that she worked at Zeekoevlei Primary School for two years.
7. Applicant was found guilty of misconduct at an internal disciplinary hearing. The allegation against in the charge sheet, reads as follows:
“It is alleged that you are guilty of misconduct in terms of section 18(1r) of the Employment of Educators Act, 76 of 1998 in that, during the first term of 2019, you assaulted learner A, a learner at Harmony Primary School, by banging the learner’s head against a desk/table.”
The sanction of a Final Written Warning and a fine of R6000,00 was imposed on her.
8. Applicant denies that she is guilty of any misconduct.
SUMMARY OF EVIDENCE
I provide a brief summary of the evidence in the interests of brevity. However, all evidence has been considered. I do not summarise the argument as they form part of the written record.
Evidence for the Applicant
9. The applicant and two other witness testified, a parent Ms Jasmin Jenkins and learner B. The applicant testified that there were no complaints or disciplinary action against her while she worked at Zeekoevlei Primary School. Apart from the current allegation, there has also not been any disciplinary action against her at Harmony Primary School. Learner A was in her class in 2019. She denied that she assaulted learner A or any other learner. She conceded that she did shout at learners sometimes.
10. She noticed that learner A was absent from school often and when she enquired about the reason for the child’s frequent absence from school, the child’s father informed her that learner A has brain tumours.
11. The complaint against her emanated from a parent, Mr Mark Benjamin. His complaint arose out of what he was told by another parent Ms Natasha Bothman. Ms Bothman’s child was also in her class in 2019. This child suffered from anxiety which affected his work negatively. She thus invited Ms Bothman to sit in during lessons to observe and possibly assist to alleviate the child’s anxiety. Ms Bothman sat in during class for the period 22-26 April 2019. During this period Ms Bothman did not raise any complaints about anything. She later found out that Bothman had complained to the principal that she was abusing learners. She also complained to parents at the gate and began the spread of rumours about her. Parents told her that Ms Bothman was telling then that she shouted at children; that the children did not like her and that she was the reason that her child was anxious and did not want to attend school. Ms Bothman also posted negative comments about her on a parent group on Facebook.
12. A grandmother of a learner in her class, Ms Lakay, accused her of hitting her grandchild on his head. She was upset and alarmed at this false allegation, so she went to the principal and informed him of the allegation. The principal called Ms Lakay to his office. Ms Lakay apologised saying that the child had denied this and that she had just gone on what Ms Bothma told her.
13. Jasmin Jenkins: She is the parent of learner B. Her child was in the applicant’s class in 2019. She knows Ms Bothman. Ms Bothman frequently stood at the gate and encouraged parents to “gang up” against the applicant. She spread rumours about the applicant which turned out to be false. As an example, she cited an incident where Ms Bothman once told Ms Lakay that the applicant had hit her grandchild. Upon investigation it was found that the allegation was false. She asked her own child if the applicant ever hit anyone and she said that she did not.
14. Learner B: She was in the applicant’s class in 2019. Learner A was in that class as well and they sat at the same desk. Learner A was her friend and they had fun together. She said that the applicant was “nice” and that it was “lekker” to be in her class. The applicant did not hit learner A -she did not hit anyone.
Evidence for the Respondent
15. Natasha Christine Bothman: Her son was in the applicant’s class in 2019. He did not adjust well to school and he was anxious. He said that the teacher screamed too much. His anxiety got progressively worse and she approached the principal about it. The principal suggested that she sit in the class until his anxiety improved. She sat in for two weeks during April. She observed that the applicant screamed a lot at the learners. She also banged her hands on the desk, and she was generally aggressive towards the learners. On one of the days that she was in the class, she observed that after the applicant put up some work on the blackboard, she banged learner A’’s head on the desk. The incident made her understand why her son was so anxious about school.
16. She informed learner A’s father about the incident by posting a message on his Facebook page.
17. She also said that she was aware that Mrs Lakay had complained to the Principal that the applicant had hit her grandchild. However, the matter was not pursued because the principal convinced Mrs Lakay to forgive the applicant.
18. During cross examination she testified that the applicant had screamed at learner A saying that her work was wrong and that she had then banged her head on the desk. After banging the learner’s head on the desk, the applicant had come to her and said, “you saw what the child did -it was her fault”. She did not confront the applicant about the incident. When asked why she had not confronted the applicant, she said that she reported the incident immediately to the principal. When reminded that she had mentioned only reporting the incident to the child’s parent, she changed her version to say that she had probably reported the incident to the principal later. The principal told her that she would speak to the applicant. A few weeks later, the principal called her to take a full statement.
19. Apart from posting messages about the incident on learner A’s fathers Facebook page, she also posted about the incident on a Facebook group for parents.
20. With regard to her own child, she said that when his anxiety persisted, he was removed from the applicant’s class and placed in another teacher’s class. His anxiety did not improve. and he is currently being home schooled.
21. Jonathan Benjamin: Learner A is his daughter. She is currently in grade 2 at Harmony Primary School. She was in the applicant’ s class in 2019. His daughter has a rare medical condition in that she gets tumours all over her body, including her brain. He had informed the applicant of the child’s condition. There came a time in 2019 when his daughter began to say that she does not like being in class. She said that the applicant was strict and that she shouted at the learners.
22. He knows Mrs Bothman because they attended the same school. In 2019 Mrs Bothma contacted him by posting messages on his Facebook page. The messages came through on 30 April 2019, but he only read them around 6 May 2019. He then contacted Mrs Bothma and she told him that she had witnessed the applicant bang his daughter’s head on the desk. He then lodged a complaint with the principal. He also spoke to his daughter.
23. He asked her if anything had happened in class. She began to cry and said that the teacher had banged her head on the desk and that she threw out her stationery.
24. During cross examination he said that during his conversation with Mrs Bothman, she told him that his daughter had cried after the incident and that she had comforted her and told her not to worry. She also said that she had reported the incident to the principal.
25. He did not see his daughter on the day of the incident as he was working nightshift on that day. His mother looks after her and his mother said that the child had cried on that day but that she had refused to say what was wrong.
26. Leaner A: She was in the applicant’s class in 2019. It was “not nice” in the applicant’s class because “she banged my head on the table”. She does not know why the teacher did this. Her head was sore, and she cried. She also cried in the car on the way back home because her head was still sore. She did not tell anyone about the incident as she was afraid that she would get into trouble with the teacher. Mrs Bothman was in the class at the time and she saw what happened and she sent messages to her Dad informing him what had happened. Mrs Bothma did not comfort her when she cried.
27. She could not remember learner B but during cross examination she said that learner B sat opposite her. When probed about what could have made the teacher angry, she could not give any reason but said simply that the teacher was at the blackboard and that she came towards her looking angry; that she banged her head on the desk; threw her crayons on the floor and said, “pick up your colours”. She did not do anything to make the teacher angry. She specifically said when asked that Mrs Bothma did not say or do anything to her after the incident and that she had cried alone.
28. She said that she did get headaches but that it was not “that much”. She said that she cried when her head was sore and that her Dad would then rush her to hospital.
29. Sarah Elizabeth Jenkins: Learner A is her granddaughter, and she takes care of her. She recalls a day in 2019 when the child came home crying. She said that her head was sore. There is only one other time when she cried after school and that is when another learner took her money. She denied that her granddaughter got headaches often and said that the only health issue that that the child suffered from was related to her pancreas.
The applicable Legal Principles
30. This matter has been referred as an unfair labour practice dispute. Section 186(2) of the Labour Relations Act creates an unfair labour practice as follows:
“unfair labour practice means an unfair act or omission that arises between an employer and an employee…. Involving …the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee.”
An employee who alleges that she is the victim of an unfair labour practice bears the onus of proving all of the elements of her claim on a balance of probabilities.
31. I am confronted with two mutually destructive versions with the applicant and her witnesses claiming that she is innocent, whereas the respondent’s witnesses claim that she did in fact assault the learner. In order to resolve factual disputes, a tribunal must make findings with reference to: (a) the credibility of the various witnesses; (b) their reliability; and (c) the probabilities .
32. Where there are contradictions between the evidence of witnesses or internal contradictions in the evidence of witnesses, it is important to understand that not every error made by a witness affects his/her credibility. In such case an evaluation must be made taking into account such matters as the nature of the contradictions their number and importance and their bearing on other parts of the witnesses’ evidence. It is permissible to accept part of the evidence of a witness and reject another part. The question to be determined is not whether a witness is wholly truthful in all he says, but whether the court or arbitrator can be satisfied that the story which the witness tells is a true one in its essential features.
33. Two minor children testified. It is an established principle that the evidence of children should be treated with caution and that a tribunal must fully appreciate the dangers inherent in the acceptance of such evidence. I have approached the evidence of both the child witnesses with the necessary caution. The following extract explaining why this is so, is apposite:
“because of its potentially unreliable and untrustworthy nature. It could also be as a result of lack of judgment, immaturity, inexperience, imagination, susceptibility to influence in suggestion and the beguiling capacity of a child to convince itself of the truth of a statement which may not be true or entirely true…”
Evaluation of Evidence
34. The applicant’s evidence that she never hit learners was corroborated by a learner in her class, Learner B. Given that Learner B sat at the same desk as Learner A, and the vicious nature of the alleged assault, followed by learner A crying, it is very likely that Learner B would have seen what happened and remembered the incident and that she would have mentioned it to someone, like her mother. One would expect that an incident of such gravity would be ingrained in the minds of the other learners. Mrs Jenkins testified that she asked her daughter every day about her day in class and that she had never mentioned the incident. When she heard rumours about the incident, she specifically asked her daughter whether it had happened, and she said that it had not.
35. Save for testifying about alleged incident itself, Learner A herself said that the applicant did not hit learners. This means that this had to have been an unusual and an isolated incident.
36. Respondent’s attempt to suggest that the incident could have happened on a day when learner B was absent must be rejected. It is common cause that the alleged incident occurred during the period that Mrs Bothma sat in class. It was established that this was during the period 22-26 April 2019 and an attendance register was produced to show that learner B was in fact present at school during that time.
37. The applicant was aware of learner A’s medical condition. It is unlikely that she would have launched a physical attack on this learner, and that to without provocation. There was no evidence from Learner A or from Ms Bothman that the applicant had spoken to Learner A about not behaving properly and that she had, for some reason, become increasingly angry. Such a vicious assault could possibly only happen in response to some very significant provocation. Let only any significant provocation, there appears to have been no provocation at all.
38. It is noteworthy that the complaint originated not from the learner herself, but from Mrs Bothman. In the first place, given that Mrs Bothman was in the class to observe/assist because of her child’s anxiety, it is unlikely that the applicant would have assaulted a child in her presence and especially when there is no evidence that she had assaulted any learner before. Surely the applicant would have been aware that this would confirm Mrs Bothman’s suspicion that she (the applicant) was the cause of her child’s anxiety. It is more likely that Ms Bothman fabricated the story to lend credence to her own suspicions.
39. Mrs Bothman was an unreliable witness, and her evidence was improbable in many respects. On her own version, she did nothing to comfort the learner or check whether she was seriously injured and render assistance. One would expect this kind of instinctive human reaction under such circumstances and more so from a mother. Neither did she confront the applicant and nor did she immediately report the incident to the principal. She would have us believe that after such a vicious assault, class carried on as normal. Her main concern appears to have been informing other parents of the incident. She contradicted herself as to when exactly she reported the incident to the principal, if at all. I am not convinced that she did in fact report the incident to the principal, because the respondent’s case is that the complaint originated from Learner’s A’s parent.
40. Mr Benjamin of course only became aware of the incident several days later, while Mrs Bothman in the meantime continued to spread the story to other parents. She also posted on a parent Facebook Group saying that the applicant was under investigation. Her focus appears to have been maligning the applicant’s name rather than addressing the alleged wrongdoing through the proper channels. She appears to have done this in order to gain support for her own suspicions of the applicant in relation to her own child. Had the incident really happened, it is more likely that she would have immediately reprimanded the applicant and immediately escalated the matter to the principal. Mrs Bothman clearly had a motive to fabricate.
41. Learner A never reported the incident first- hand to anyone. She and her father confirmed that she did suffer from headaches and that she was being treated for it. She also said that she cried when she got headaches. She could very well have been suffering from a headache on that day, and she possibly did cry on that day. This, in my view is unrelated to any incident involving the applicant. The sense that I got was that her father related to her what he was told and that she then repeated and accepted it as the truth. She did not appear spontaneous in her testimony to the extent that she constantly repeated “she banged my head on the desk”, even in response to unrelated questions, as if she feared departing from the
“The dangers inherent in reliance upon the uncorroborated evidence of a young child must not be underrated. The imagination and suggestibility of children are only two of a number of elements. They require their evidence to be scrutinised with care amounting perhaps to suspicion”.
42. It is indeed striking as submitted by Advocate Bosch that both Mrs Bothman and learner A, the pillars of the respondent’s case, both failed to report such a vicious attack within any reasonable period of time. Learner A justified the delay in reporting the incident by saying that she did not tell anyone what happened because she was afraid that the applicant might do it again. That sounds like an answer that was suggested, given her own version that the applicant did not hit learners in her class. There was therefor no reason to fear.
43. On the conspectus of the evidence before me, I find that on a balance of probability the applicant did not assault Learner A.
“The credibility of witnesses and the probability or improbability of what they say are not separate piecemeal enquiries. They are part of a single investigation where questions of demeanour and impression are measured against the context of witnesses where the importance of any discrepancies or contradictions is assessed , and where a particular story is tested against the facts which cannot be disputed and against inherent improbabilities so that at the end of the day one can say with conviction that the one version is more probable and should be accepted and that therefore the other version is false and should be rejected with safety.”
44. I find that the respondent committed an unfair labour practice in finding the applicant guilty of misconduct and sanctioning her for it.
In the premises, I make the following award:
1. Respondent has committed an unfair labour practice in finding the applicant, Nadia Ford, guilty of misconduct and sanctioning her for it.
2. Respondent is ordered to expunge the finding and the sanction from the applicant’s record with immediate effect.
3. Respondent must repay the amount of R6000,00, in respect of the fine that was imposed, to the applicant within seven days of service of this award.
4. I make no order as to costs.