PSES 347 19/20

Award  Date:

15 March 2021

Panelist/s: Kuvonakala Pretty Chavalala
Case No.: PSES 347 19/20
Date of Award: 15 March 2021



In the ARBITRATION between:



SAOU obo Krynauw W_______________________
(Union / Applicant)


and


Department of Education Gauteng_____________________
(Respondent)



Union/Applicant’s representative: Self Represented
Telephone:
Applicant’s cell: 0820547419
Email: wdk321@gmail.com

Respondent’s representative: Mr. M Tshitshiba
Telephone: 011 660 4581
Telefax:
Email: Mvuleni.Tshitshiba@gauteng.gov.za
 
DETAILS OF HEARING AND REPRESENTATION

[1] This is the arbitration award between Wynand Krynauw (hereinafter referred to as “the applicant”) and Department of Education Gauteng (hereinafter referred to as “the respondent”). The hearing concerned an alleged unfair dismissal dispute arising as a result of an alleged misconduct. The case was heard at Gauteng West District Office, Krugersdorp. It sat down on several occasions from the 20 January 2020 and was finalised on 23 February 2021.

[2] The applicant initially attended the first sitting with the Union Official from SAOU and an attorney. The attorney applied for legal representation and same was refused. In the next sitting, the union official withdrew as the applicant’s representative and the applicant represented himself. The respondent was represented by Mr Tshitshiba from the Department of Education.

[3] The applicant submitted a bundle of documents which were marked Bundle A1 to A6. The respondent submitted a bundle which was marked Bundle R.

[4] Because the case was previously heard on several occasions, the parties could not immediately submit their closing arguments and requested to submit written arguments. The applicant also requested extra days as opposed to the normal 7 days. I granted both parties 11 days to submit closing arguments. Both parties had until 06 March 2021. I received another request for extension from the applicant and I did not grant the extension. By the 06 March 2021 I had received both parties’ closing arguments.
[5] The hearing was held in English and it was digitally and manually recorded.

ISSUES TO BE DECIDED

[6] I am required to decide if the applicant’s dismissal was procedurally and substantively fair and if not, to order the appropriate remedy.

BACKGROUND TO THE ISSUES TO BE DECIDED

[7] The applicant was employed by the respondent on a permanent Post Level 1 Educator position stationed at Townview High School. He was so employed by the respondent since 01 January 2010. At the time of his dismissal, he was earning a salary of R417 051.00 per annum. He was dismissed on 12 July 2019.
[8] The applicant was charged with one count of misconduct which was formulated as follows:-

a) Allegation 1
You are charged with misconduct of improper disgraceful and unacceptable manner in that on the 23 March 2018 or anytime incidental thereto at your workstation you allegedly assaulted Brian Phiri by grabbing and pushing him against the wall whilst you knew or ought to have known it is wrong to do so.
In view of the above, you are thus charged in terms of section 18 (1) (r)(q) of the Employment of Educators Act 76 of 1998 as amended.

[9] The following were common cause issues as agreed in the pre-arbitration minutes and as further narrowed by the parties at the arbitration hearing:

a) Date of employment, position, salary and the date of dismissal.
b) Applicant was given a notice to attend disciplinary hearing in writing. His rights were explained, he was given time to prepare the case, he was given a chance to question witnesses and he was advised of the outcome of the disciplinary hearing.
c) An appeal was lodged against the outcome of the disciplinary hearing and the appeal confirmed the outcome sanction of dismissal.
d) The applicant was charged under section 18(1)q of the Employment of Educators Act.
e) In 2015, the applicant was found guilty of assaulting a learner.

[10] The following were issues in dispute:-
a) Commission of the offence.
b) In the event it is found that the applicant committed the offence, whether dismissal was an appropriate sanction under the circumstances.
c) That the respondent unreasonably delayed charging the applicant.
d) The appeal authority unreasonably disregarded new evidence.

[11] The applicant sought retrospective reinstatement as a relief.

SUMMARY OF EVIDENCE AND ARGUMENT
This section records only the summary and not the verbatim evidence of the parties. The hearing was digitally recorded and such recordings are part of the case file.





THE RESPONDENT’S CASE
The Respondent called 4 witnesses as follows:-

First witness: Brian Phiri, who testified under oath and the summary of the evidence in relation to the charges was as follows:

[12] In 2018, he was a learner at Townview High School and was in Grade 11. He knows the applicant as an educator at Townview High School.
[13] On 23 March 2018, he was at school. At break time he went to play soccer with his friends. As he was playing, the applicant arrived at the play area and called him. He refused to go to the applicant. He knew that the applicant would beat him because of the incident that had happened on 22 March 2018 between him and Mrs Krynauw, the applicant’s wife.
[14] On 22 March 2018, while in Mrs Krynauw’s class, she asked him if he had done his homework. He had not done his homework so Mrs Krynauw took his book and threw it into the bin. She locked him inside and told him to sit and he refused. That’s when she slapped him. He then pushed her.
[15] On 23 March 2018 while playing soccer, the bell rang and they were expected to go back to class. He quickly went to the tap to drink water. As he was drinking water, someone grabbed him from behind on the collars. He saw that it was the applicant. The applicant pushed him against the wall and told him he would kill him if he ever hit his wife again.
[16] Mr Ramotshela separated them and told him to go to class. As he was going back to class, the applicant kept following him. When he got to the stairs, it was crowded as other learners were going back to their classes also. One of the learner behind him said “tshwara ntwana”(meaning take this buddy) putting something in his hand. He realised it was a knife and he dropped it on the floor. Other educators arrived and took him to the office, and he was suspended.
[17] On the same day, the applicant later went to his house and spoke to his parents. The applicant was with one Ms Tshidi and his wife. The witness’s mom asked the applicant how the blazer got torn and he demonstrated how he grabbed him at the tap.
Cross examination
[18] He conceded that the bell rang and it must have been powered by electricity. He denied that he was not wearing school uniform. It was put to him that witnesses will testify that he had said “fokof” to the applicant and he denied that he ever uttered such words.
[19] He insisted that the applicant told him that he would hit him if he ever hit his wife again.
[20] He recalls that students were dancing at the assembly side. He denied that there was another team of students playing soccer at the quart area. Playing soccer at the quart area was forbidden long ago. He denied that he was playing a position of a goalkeeper during break.
[21] He denied that he had a knife when the applicant was holding him against the wall. He stated that if he had a knife, he would have stabbed the applicant. He conceded that he wanted to fight the applicant back and that is why Mr Ramotshela held him tight.
[22] He conceded that he was charged as per A5 and later suspended. Even at his disciplinary hearing, he denied being in possession of a knife. Mr Ramotshela would not have let him go if he had a knife.
[23] The applicant and his wife went to his house on the same Friday and on Saturday. On Friday he attended the meeting but on Saturday he did not. He does no know who had sent the applicant and his wife to his house, but they were accompanied by Ms Tshidi. He stated that the headmaster never told him that the applicant would go to his house to sort him out. He denied that on 23 March 2018, he went to the 7th Street tuckshop and flaunted the knife saying “I wanted to scare Krynauw”.

Second witness: Tsholofela Ramotshela, testified under oath and the summary of the evidence in relation to the charges was as follows:

[24] He is an educator, Post Level 2 at Townview High school. He is a Departmental HOD. The applicant was one of the educators he was managing.
[25] On 23 March 2018 the duty roaster indicated that he must go and attend break duty and he went there during break. All educators who were assigned break duty that day were present at the school grounds. The applicant was not part of the list that day. The applicant was however at the school grounds. It does happen that an educator would be at school grounds even if not roastered for break duty.
[26] The applicant walked towards where the learners were playing soccer. The bell rang and the teachers started driving the students towards classes. The applicant called Brian Phiri and Brian Phiri ignored him and walked past him. Brian went to the taps to drink water. There was a commotion and he saw applicant holding Brian Phiri against the wall. He heard the applicant saying “don’t you ever touch my wife again”. Brian was also trying to push the applicant. He quickly went and separated them. Brian walked towards the classroom and the applicant followed him and another scuffle ensued and he separated them again. Brian then walked towards room 1 and all other learners also. During these scuffles, Brian Phiri did not have a knife, he only heard of a knife when he went to report the incident to the principal.
[27] He did not know what the applicant meant when he said “don’t you ever touch my wife again” until after reporting the incident. He was told there had been an incident between Brian Phiri and Mrs Krynauw the previous day.
Cross examination
[28] He denied that he had failed to train the applicant. The incident itself relates to emotional intelligence and a teaching persona that is expected from every educator and would not necessarily require training from him. He conceded that the bell rang on 23 March 2018 for break. He conceded that there are cameras at the school and the screen-view of the cameras is at the headmaster’s office. He denied that the applicant handed marks to him during break on 23 March 2018.
[29] When the applicant was walking towards Brian Phiri, Mr Piet Miles was saying ‘leave the boy alone’. Applicant dropped his jersey and Mr Miles picked it up. Brian Phiri was wearing his school uniform on that day. He is aware that something happened at the stairs, but he did not witness it.
[30] He demonstrated that as Brian Phiri was drinking water, the applicant grabbed him from behind the neck and placed him against the wall with two hands. He let go of one hand while he held him on the neck area and pointed at him with the other uttering the words ‘don’t you ever touch my wife again.’ A lot of words could have been said but those are the only words he heard when he got close to separate them. Brian Phiri’s blazer was torn under the armpit.
[31] He wrote a report about the incident and submitted it. He does not know what happened to it as he does not deal with the administration of documents.

Third Witness: Nkateko Shadrack Zitha; who testified under oath and the summary of the evidence in relation to the charges was as follows:

[32] He is employed by respondent as a Labour Relations Officer. He was responsible for investigating the allegations against the applicant by Brian Phiri through his parents.
[33] There was no delay in handling the matter from the date of incident and the charges. The incident occurred on 23 March 2018. There was school recess from 23 March 2018 and on 25 April 2018, the applicant received an ‘audi’ letter from district director as appears on page 1 of Bundle R. The applicant was given an opportunity to reply to the allegations. The applicant respondent to the allegations on 26 April 2018 as it appears on page 2 of Bundle R.
[34] The investigations carried on. The applicant was booked off sick from July 2018 to 31 December 2018 and as a result, documents could not be served on the applicant during that period. If it is found that there was delay, it was not caused by the respondent and no prejudice was suffered by the applicant.
[35] The Appeal Authorly (MEC) exercises his discretion whether or not to receive new evidence or not, the respondent does not intervene in that process.
[36] The applicant did not have a clean disciplinary record. He was charged in 2015 for a similar offence and he was found guilty.
Cross examination
[37] He stated that he received statements from people involved including Mr Ramotshela. He decided to call Mr Ramotshela to give oral evidence at the DC hearing.
[38] He is not aware that the learner is still at school. If he is indeed it could be that they did not find a reason to expel him. As a Labour Relations Officer, he deals with the conduct of departmental employees not learners.


Fourth witness: Caroline Nzimande testified under oath and the summary of the evidence in relation to the charges was as follows:
[39] She is an employee at Townview High School and she is employed as a cleaner. She knows Brian Phiri as he was a learner at Townview High school and she first knew his mom at the school when his mom would go to the school. She knew Brian Phiri’s place because she was initially staying at Mansenville where Brian Phiri’s place is situated.
[40] She knows the applicant as a n educator at Townview High school.
[41] On 23 March 2018 at 15 :30 (knock off) when she was about to leave, she saw the applicant, his wife and Mr Miles standing outside. Mr Miles called her and asked her to go with the Krynauws to Brian’s place to go and apologise.
[42] She indeed accompanied them. They found Brian’s mom and other family members. She asked Brian’s mom if they could go in and Brian’s mom agreed. Brian was not there but he later arrived.
[43] She knew Mr Krynauw was to go and apologise about what had happened at school. She did not see what had happened but she had heard from the grapevine what had happened. The applicant started talking and Brian’s mom told them to wait for Brian’s uncle. Brian’s uncle arrived and the applicant explained what had happened. Brian showed the meeting the torn blazer. Brian’s mom said that they wanted a new blazer. The family and the Krynauws agreed that they would meet again on Saturday, the following day.
Cross examination
[44] She stated that Mr Miles specifically told her that she should accompany the Krynauws to go and apologise. She denied that the principal, Ms O’Brien had asked her to accompany the Krynauws. The applicant did stand up to demonstrate how the blazer got torn.

APPLICANT’S CASE

The applicant called 8 witnesses as follows: -
First witness: Wynand Dannie Krynauw, the applicant who testified under oath and the summary of the evidence in relation to the charges is as follows:

[45] He was employed as an educator at Townview High School. Brian Phiri assaulted his wife on 22 March 2018. His wife told him about the incident and she was traumatised. There was a video of the incident with Brain Phiri and Mrs Krynauw. The video was shortened and edited and does not show the parts where Brian Phiri was poking, hitting, and bumping her with a stick. All that he and his wife did was to pray for Brian Phiri.
[46] He had previously given Mr Ramotshela marks, but Mr Ramotshela had lost the marks. On 23 March 2018, he told Mr Ramotshela that he would take the marks to him during break. His wife brought lunch as they normally ate together. He told her that he would not eat with her because he had to give Mr Ramotshela marks and find some time to watch cricket. He intended to watch with Mr Miles as they both shared the same love for the cricket sport.
[47] He went to the field and handed the marks to Mr Ramotshela. He googled the cricket scores as it appears on the screenshot or a photo on Bundle A5 page 5. Mr Miles approached him from the tuckshop.
[48] The applicant looked up and about 8 meters from him he saw Brian Phiri who was a goalkeeper, the soccer action was happening far from him. He noticed that Brian Phiri was not wearing any uniform, he had a light grey top on. Brian Phiri had a habit of not adhering to school rules, his disciplinary record appears from page 62 of Bundle A1. The applicant’s ethics and character requires him not to allow a learner to be a loose cannon and he has a duty to help learners into obedience. Brian Phiri was still in the soccer game but there was no ball action around him.

[49] He said to Brian “Brian, come here, you are not wearing the correct school Uniform”. Brian Phiri did not obey. He is of the view that Brian Phiri thought that the applicant held something against him for hitting his wife. Brian Phiri became disrespectful, disobedient, started cursing and ignored the applicant. Brian Phiri continued playing soccer. Mr Miles arrived from the tuckshop and he told him ‘Piet, do you see that Brian does not have top on’ and Mr Miles responded in the affirmative. He left his phone with Mr Miles and went to Mr Ramotshela to tell him to tell Brian to put on uniform. He did this to avoid going over Mr Ramotshela’s head. He went back to Mr Miles to watch the cricket. The bell rang and kids had to go back to class. He started assisting the teachers to take the learners to class as was normally done even when an educator is not on duty. There was some noise from the quart area of some students dancing to the jukebox.

[50] Mr Ramotshela was blocking the tap since students have a tendency of causing delays by drinking water after the bell rings. He assisted Mr Ramotshela in blocking the access to the taps. The students that were dancing had also started to walk towards classroom direction.

[51] He saw Brian Phiri approaching him, he told him to turn around and go back to class. Brian Phiri kept approaching him aggressively and he bumped the applicant with his left shoulder. Brian Phiri’s right hand was behind him as if he were cuffing something or hiding something. Brian then said to the applicant ‘what can you do about it’. He, the applicant was retreating but he could see that Brian was provoking him. He then defended Brian away with his left hand at an arm’s length and pushed him away against the wall. Brian never went to drink water and he did not have any blazer on.

[52] He said to Brian Phiri ‘don’t you ever touch a teacher again, I will sort you out’. He was referring to himself because Brian Phiri had bumped him. Ramotshela must have seen what Brian Phiri was holding because he came running and held Brian Phiri around the waist, clamping both his arms and pulled Brian Phiri to the side. He followed Brian Phiri with his eyes to see if Ramotshela would take him to office. He saw Brian Phiri 30 meters away from him and he was going towards the stairs next to Mr Ramotshela class. He went towards classes also and while standing on the stairs, someone hit him on his back, and he saw Goodness standing there with a grin on his face. Goodness was Brian Phiri’s friend. Ms Kuin shouted “Jenny, hulle slaan jour man” meaning Jenny they are hitting your husband”. He believes it was Goodness who hit him. His back was now turned against Brian Phiri. Someone hit him again on his back from Brian Phiri’s direction.

[53] After about 30 minutes, Ms Shumang went to relieve the applicant since he had been called to the boardroom. When he arrived, there was Ms Stheering, Mr Tshakona, and the headmaster. There was an Okapi knife on the table. He asked whose knife is that and the headmaster said “sir, we cannot tell you now, but you almost got stabbed today”.

[54] The headmaster said to him that Brian Phiri was at the boardroom and he had told her that the applicant tore his blazer. He told her that Brian Phiri was lying since he did not have a blazer on. He explained what had happened. Ms O’Brien called Mr Miles in to also explain what had happened. Before Mr Miles came in, she took the knife and hid it under the table. Ms O’Brien testified at the disciplinary hearing and she denied that there was ever a knife in the boardroom.

[55] While in the boardroom, Mr Miles suggested Mr and Mrs Krynauw must go to Phiri’s home to see that they make peace. The headmaster then instructed that they go to Phiri’s house and take Tshidi along since she knew Brian’s place. He told his wife about going to Phiri’s house and his wife did not like the idea. She said she did not like the idea because Ms O’Brien had told her that she told Brian Phiri that Mr Krynauw would go to his house to sort him out. He told her that Mr Miles started with the idea. They went to ask Ms O’Brien if she had indeed said so to Brian and she disputed. They decided they would go to Brian’s family and told the headmaster that they would keep her updated.

[56] The headmaster told him to write a statement and he did so as it appears on page 103 Bundle A1. He believes there is a vendetta against him.

[57] He wants retrospective back pay as a relief. He also wants his pension contributions to be paid for the period he was suspended.

Cross examination.

[58] He denied that the incident with Brian Phiri on the 23 March 2018 was influenced by the incident on 22 March 2018 of Brian Phiri and his wife. He conceded that in his statement on page 96 of Bundle A, he wrote that he said to Brian “if you ever touch a teacher again, I was hoping again that he would say sorry for what he did to Ms Boois the previous day”. Ms Boois is his wife.
[59] He conceded that he did not see a knife on Brian Phiri, he just saw that his hand was behind him concealing something.

[60] It was put to him that he was never bumped by Brian Phiri and that is why it appears nowhere on his statement that Brian Phiri bumped him. He insisted that Brian Phiri bumped him.

[61] Mr Miles suggested that the applicant and his wife go to Brian Phiri’s house and they then ran with the suggestion. She was the accounting officer so the decision was hers. He denied that he went to Brian Phiri’s family looking for peace. He went because it was suggested that they go. He conceded that they did offer to replace Brian’s torn blazer and the reason for that offer was that him and his wife are involved in charity organizations and he wanted the Phiri family to know what kind of people they are.

[62] He stated that Brian Phiri’s family wanted money for the case to be closed. He agreed that it is uncommon for the aggressor’s family to demand payment from the victim’s family for a case to go away.

[63] He conceded that he was previously found guilty by the department as it appears on page 9 to 10 of Bundle R. He stated that he never challenged the sentence because he was not aware of the ELRC Council. He was represented when the 2015 case was heard. It was put to him that according to the recording transcript on page 74 of Bundle A, he is the one who initiated the money discussion at the Phiri house, a version he denied.

Second witness: Andre Pretorius, testified under oath and the summary of the evidence in relation to the charges was as follows:
[64] He is employed by SAOU as an official. He was subpoenaed to come and testify on CCTV cameras and his engagement with the school regarding the CCTV footage.

[65] He was initially representing the applicant and he recalled that he went to school to request CCTV footage. He was with the applicant and they went to an office and saw a lady, it could have been Ms Stheering, but he does not recall her names. He asked the lady if there would be disciplinary action against Brian Phiri. He also asked if there is a footage of the incident on the 23 March 2018 and she said there could be a footage. He requested that he be provided with the footage as soon as they can get it. He did not hear from the school again regarding the footage. He had expected the school to give the footage to the applicant. He did not formally request the footage in writing.


Third Witness: Jenifer O’Brien who testified under oath and the summary of the evidence in relation to the charges was as follows:
[66] She was the principal of Townview High School. She was subpoenaed to give testimony on the CCTV footage. She can confirm that there are cameras fitted in the school premises. It is possible that the camera at the third floor captures the quart area as well.

[67] On 20 March 2018, the box where the electrical lines were was set alight by a learner and a case of arson was opened, CAS number 640/03/18 as appears on Exhibit B. She reported the issue to the IDSO. The documents on Exhibit B are proof that the DB Box was burnt. Exhibit B includes the Old Mutual insurance claims, SAPS case numbers and quotes from Electrical suppliers. It is possible that the siren/bell was not affected because only 6 classes were affected by the arson and the other classes did not experience any problem.

[68] The front bell was working but the back bell was not working. It is possible that the bell rang on 23 March 2018 powered by electricity.

[69] She never submitted the documents on exhibit B because she was never asked to. Had she been asked, she would have submitted them. She was not part of the meeting where the Union is said to have requested the footage. She did tell Ms Stheering that the cameras were affected by the arson. She does not take kind to the insinuation that she kept the documents. Even the applicant never ever asked for those documents, which he could and should have. The company that repaired the damage was appointed by the insurance company to fix the electrical problems that were created by the arson.

Fourth witness: Peter Miles, testified under oath and the summary of the evidence in relation to the charges was as follows:

[70] He was appointed as an educator at Townview High School. He normally goes to the tuckshop during break to assist with selling. He then went to the applicant to watch some cricket with him. In between the applicant left to go and hand somethings to Ramotshela. The bell rang and they assisted in getting the students back to class. There was some noise at the quart area because someone had a juke box and students were dancing to it. Brian Phiri was one of the boys who was playing soccer. He was not teaching Brian Phiri, but he is aware that he normally did not wear his uniform.

[71] Mr Ramotshela and the applicant were at the tap area blocking people from drinking at the tap. Brian Phiri had walked towards class but turned around and decided he was going to drink water despite Mr Ramotshela fencing off the tap. He bumped the applicant and the applicant defended himself and held Brian against the wall. The applicant was not the aggressor. Ramotshela grabbed Brian and moved him away. Some students started shouting. He told the applicant to calm down and that they should go back to work.

[72] He was later called to Ms O’Brien’s office. When he arrived, the applicant, Mr Tshakona and headmaster were there. He explained what he had witnessed. He did not see any blazer or knife at the headmaster’s office. He, the witness suggested that they share the story with the parents. Out of experience he knows that the at the end of the day, the educator becomes the victim and a target of social media. The fact that there is even a case against the applicant shows that the system is failing educators. The idea was to try and solve the problem with the parents and not make an issue about this. He was not the one who suggested that Tshidi goes with the Kraynauws to Phiri’s house.

[73] Phiri was adamant in going to drink water so maybe he did bend to drink water, but he did not see him bend down to drink water. Brian was a disobedient child and he wanted to go to the tap. What happened there happened in seconds, there is no slow-motion video so he could review exactly which body part bumped which one. Next thing he saw the applicant defending, he cannot say with what hand. Brian Phiri was fighting trying to get away from the applicant’s grip. He could not see any instrument on Brian Phiri. There was exchange of words between the applicant and Brian Phiri, but he cannot say exactly what was said.

[74] Because of Brian Phiri’s usual behaviour, he was the aggressor. He cannot see a reason why the applicant would attack him. Brian Phiri was not wearing a blazer but a tracksuit top. Brian had a torn blazer since grade 8. The applicant went to the stairs and the witness went to do his job.

[75] Later the following week while at the headmaster’s office, an EFF Member arrived and asked the headmaster why Brian Phiri was suspended and the applicant not. The headmaster told him that the discipline of learners is done by the school but for employees it is done by district. The man was not threatening the headmaster but was asking her and she responded in a professional way.

[76] He knows that applicant took over from Mr Thakedi. He knows that Mr Thakedi used to hit students. Mr Thakedi was at the old school and students respected him. They needed someone like that according to him.

[77] The applicant defended himself from Brian Phiri with his left hand. He does not know who touched who first, but he believes that the applicant will never touch a student first. Only a teacher out of his mind can hit a student.


Cross examination
[78] He is the one that suggested that the Krynauws go and speak to the Phiri family in order to stop the story of the incident right where it was because it could get to social media. He did not deny that he used the word ‘apologise’ but stated that the word can have more than one meaning, it could also mean clearing the air.

[79] He stated that he only heard on the 23 March 2018 heard about the Mrs Krynauw incident of the previous day with Brian Phiri. The 22 March 2018 incident may have played a role on the 23 March 2018 incident. Having looked at the statement of the applicant, he can say that personal matters came at play when the applicant said ‘I was hoping against that he would say sorry for what he did to Mrs Boois”. At the time of the tiff, the witness was not aware about Mrs Krynauw’s incident with Brian Phiri.

[80] He did not see any knife as he was looking at Brian Phiri and the applicant. He cannot say if he could see Brian’s hands because everything happened in a flash.

Fifth witness: Atlegang Legae, testified under oath and the summary of the evidence in relation to the charges was as follows: -
[81] He is 19 years of age and he was a learner at Townview High School.

[82] On 23 March 2018 he was at school. He and his squad were playing soccer at tuckshop side and Brian Phiri and his squad were playing soccer on the other side. Mr Miles was at the tuckshop. The bell rang powered by electricity. They hurried to the taps and he saw Brian Phiri that side. Brian Phiri was not wearing his blazer.

[83] They drank water and Brian Phiri went towards class. Mr Ramotshela started to block the water tap and the applicant was sending the learners away from the taps. Brian Phiri then turned towards the taps walking towards the applicant.

[84] The witness knew something was about to break out because he knew Brian Phiri. Brian Phiri took out his okapi(knife) with his right hand and put it behind him. Phiri was now in front of him, and he could see the okapi. Brian Phiri then bumped the applicant with his left shoulder and the applicant protected himself with his left hand. When he was asked if he believed Brian Phiri wanted to stab the applicant he said yes.

[85] Mr Ramotshela, at his position would also have seen the knife. Mr Ramotshela grabbed Brian Phiri and went with him behind the zozo. He then left Brian Phiri and went towards class room. The commotion had died down and the applicant started to walk to class and, on the stairs, Goodness and Brian Phiri attacked the applicant.

[86] He has written a statement before regarding the incident. He saw a video of the incident on the 22 March between Brian Phiri and Mrs Krynauw.

[87] He was still at the tap because he is a member of the RCL committee so he had a responsibility to assist teachers to send learners to class. There were other people in the vicinity but the person he recalls seeing is Siphesihle Zulu.

Cross examination
[88] It was put to him that the first day he took a stand, he never mentioned that he was an RCL member. He only stated that he saw Brian walking towards the taps and knowing Brian he knew something was up. He stated that the incident happened 2 years back and that is why he could not recall some issues.

[89] It was put to him that all witnesses who witnesses the incident, including the applicant never mentioned that there were RCL members assisting and that he is creating a story. He stated that the teachers could not identify him as such because they have no badges. Students would only know RCL representative from their own class and not from other classes. It was put to him that he does not even know how RCL works because he was never a member.

[90] He stated that Brian Phiri was a bad learner and disobedient. He intimidated him and other learners because he always carried a knife. Brian and bullied him and wanted to fight the witness He denied that the applicant pushed Brian Phiri against the wall. When it was put to him that the applicant did already say that he had pushed Brian against the wall he had no comment.

Sixth witness: Siphesihle Zulu, testified under oath and the summary of the evidence in relation to the charges was as follows:
[91] He was a learner at Townview High and he is 20 years old.

[92] On 23 March 2018 he was at school. The bell rang after break and the teachers were telling students to go to class. He was also a member of RCL. The applicant was there telling students to go to class. Brian Phiri bumped the applicant with his shoulder several times. The applicant asked him what is going on. Brian Phiri pulled out an okapi and when the applicant saw the knife, he pushed him away with his left hand. Mr Ramotshela then came from behind Brian Phiri and grabbed him clamping both his hands and took him behind the zozo. The applicant and Mr Miles were around the tap for a few minutes then they left the tap area. The applicant went towards Mr Ramotshela class. As he was going to class, he heard a commotion.

[93] RCL is responsible to assist the teachers in taking learners to class also.

[94] Brian Phiri is the one who started the altercation, and he was aggressive. He carried the knife with his right hand about 25cm in front of him. It was possible for the applicant to see the knife. The applicant pushed him with an open hand to avoid being stabbed. Mr Ramotshela grabbed him so that he could not move his hands.

[95] The applicant and Mr Miles did not follow them. As the students were going to class, he heard another commotion and did not see what happened. Brian Phiri was not wearing school uniform.
Cross examination
[96] He stated that the applicant maybe did not see the knife when it was pulled but after that it was possible for him to see it. When it was put to him that the applicant testified that he did not see the knife his version was that it was not possible for the applicant to see the knife. It was put to him that the applicant would then not have been defending himself against being stabbed and he stated that he was focusing on Brian Phiri, but he believes the applicant had a reason for defending himself. He knew of the altercation between the Brian Phiri and Mrs Krynauw but stated that the reason the applicant pushed Brian Phiri was because of the knife.

[97] He denied that Brian Phiri wore a blazer in the day of the incident. He was referred to the applicant’s statement page 96 Bundle A which reads ‘I did not know by then that he had a knife which he was hiding in his blazer’. The witness stated that the applicant might have made a mistake on the blazer part.

[98] He could not recall what hand the commissioner used to hand a pen to the employer representative to pass it to him for filling of register. He recalled the details of which hands were used by the applicant and Brian because of the position he was at. He could not recall if the applicant wore a watch. He recalled that Brian Phiri was wearing a jersey. He could not recall what clothing the applicant wore.

[99] When Brian Phiri took out the knife, he opened it and it remained opened. Even when Mr Ramotshela grabbed him, the knife was open.

[100] He knew that Brian Phiri intended to stab the applicant because he had an open knife on his hand when he approached the applicant. It is however possible that the applicant did not see the knife. He does not know the reason why Brian Phiri attacked the applicant.
Seventh witness: Gershom Boikanyo Mothupi who testified under oath and the summary of the evidence in relation to the charges was as follows:
[101] He is 20 years of age and he was a student at Townview high school.

[102] He was a witness even in the disciplinary herrings of both Mr and Mrs Krynauw. He also wrote affidavits and gave them to the Union representative who was representing the applicant at the time.

[103] He witnessed the incident between Brian Phiri and Mrs Krynauw. He wanted to intervene because Brian was a nuisance, but the burglar door was locked. After school on 23 March 2018 he went to 7th street tuck shop. He saw Brian Phiri and his friends. Brian’s friends pulled a knife from Brian’s backpack. Brian put it back inside the backpack and said ‘ne ke tshosetsa Krynauw, meaning I was scaring Krynauw. He, the witness just ignored them because they are full of nonsense.

Eighth witness: Jennifer Krynauw who testified under oath and the summary of the evidence in relation to the charges was as follows:

[104] She is an educator at Townview High school, and she is the HOD for languages.

[105] There is only one strong room used to keep confiscated goods at Townview High school. The register for the confiscated goods is headed ‘cell-phone confiscating register’ but all items are recorded there even if they are not cellophanes. Any knife on 23 March 2018 should have been recorded there.

[106] On Brian’s notice of disciplinary hearing, he was charged also with carrying a knife to attack a teacher. The union representative reported that Ms O’Brien had told him that there was no knife.

[107] There was a video taken of the incident between her and Brian Phiri. She later discovered that part of it was deleted. Brian Phiri should not have been at school the following day; he should have been suspended.

[108] She can see Exhibit B regarding the arson and electrical insurance claims, but she does not believe the authenticity of the documents. She was in the headmaster’s office on 23 March 2018 and the screen showed that the cameras were working.

[109] She went with the applicant to Brian’s house. The headmaster called them to the office and told them to go to Brian’s home to explain. When she told them to go, she was alone in the office. She told them that she asked Tshidi to accompany them since Tshidi stayed closer. They did not want to go there but only went because the headmaster said so. The applicant told her that Mr Miles was also of the idea that they go to Brian’s house.

[110] On 23 March 2018 during lunch break she went to the applicant’s rooms to eat lunch. When she arrived, he was busy with marks. He told her that he wants to submit marks to Mr Ramotshela because Mr Ramotshela had lost the marks. Mr Ramotshela was on playground duty at the quart area. She saw the applicant take the marks to the quart area and she went back to her office which was at the 3rd level.

[111] The bell rang and some 10 minutes after it rang, she heard some commotion from her office. She went outside of her office to the corridor, and she had a good view of the quart area. She did not testify about this and what she observed before because the union representative said she must not testify because she is the applicant’s wife.

[112] She saw students dancing to a jukebox. She saw the applicant and Mr Miles coming around the corner of the zozo. Mr Ramotshela was also chasing students from the tap. As learners were going to class, Brian Phiri did not go with them. She saw Brian go straight to the applicant and bump him. He was not wearing uniform. She could see Brian’s back side. Mr Miles was behind the applicant. Brian Phiri was holding something with his right hand lowered. Everything happened fast and she saw Mr Ramotshela take him behind the zozo. She could not hear any of the words said during that time. The applicant then went towards class. Not so long Ms Skoen shouted “Jenny, hulle slaan jou man’ (Jenny they are hitting your husband). She ran out and looked over the wall. Mr Naidoo and Mr Scott ran down. She saw that Goodness was behind the applicant. Ms Shumang was also part of the people that ran towards the commotion.

[113] She, the witness went to look for the applicant and asked him if he was fine and said he was fine and wanted to get the test done. She went to Mr Ramotshela to get the details of what was happening and Mr Ramotshela said, ‘your husband almost got stabbed today’.

[114] On 12 April 2018, Brian Phiri attended his disciplinary hearing. On 18 April, their union rep (Andre Pretorius at that stage) went to school to consult with them regarding both their cases. They asked him to assist with obtaining footage. They went to the quart area and also to Ms Stheering’s office. Mr Pretorius asked for the footage and Ms Stheering said she will make it available. It is a possibility that there was collusion between the Pretorius and Ms O’Brien.

[115] The witness was charged for the incident on 22 March 2018.
[116] On 23 March 2018 they went to Brian Phiri’s home. They talked and she showed them the necklace. Brian Phiri took out the blazer and his mom told him to leave the blazer alone because he knows it was torn. Ultimately, Brian’s mother said, ‘lets make peace’. The uncle, Mr Robertson said ‘no we are not going to make peace., the family will hold a meeting and revert. Meeting was set for the following day. She thought to herself that something is coming money wise. They called the headmaster to explain and the principal said ‘no cent must be exchanged.

[117] On 24 March 2018, they decided to record the proceedings and the recordings are as appears on the Bundle A page. On 25 March 2018, the principal told them that the boy had posted a video on 22 March incident on Facebook. The video was the part where she was defending herself from Brain Phiri.

[118] When Brian Phiri bumped the applicant, she saw him defend himself by keeping him away with his left hand. Her representative had told her not to testify or write about her observation of the incident because it could be used against her by the district office.
Cross examination
[119] She was charged and found guilty of assaulting Brian Phiri

[120] What took her out of her office was the loud noises or commission. The statement on page 68 is hers. She was asked to write it but told to omit some information as it could be used against her by the district. The union representative told her to exclude how she witnessed Brian Phiri assault the applicant and Mr Ramotshela grabbing Brain Phiri. She does not know how that information would incriminate her. It was put to her that she was told the facts about the Brian Phiri incident with the applicant. She denied and stated she observed it. She read her statement for the record and stated that she was told to omit certain information as it would be used against her. She conceded that the part she was told to omit is very important in proving the applicant’s innocence. She told the applicant that she was asked not to include that part. When it was put to her that even the applicant strangely never mentioned that she observed everything from the third floor, she responded that he might have forgotten considering she was not in his first line up of witnesses.

[121] She denied that the applicant assaulted Brian Phiri because of the incident between her and Brian Phiri. She stated that both thought he would not be at school and any man would have gone the very same day of the incident to the person who assaulted their wife if they intended to. He would not wait until the following day.

[122] Brian was nowhere near the taps. He was from the circle of learners dancing with the jukebox. The jukebox incident happened there at the tap.

[123] She was forced by the principal to go to Brian Phiri’s place and it was never their volition to go and make peace. She and the applicant never apologised for anything at Brian Phiri’s place.

ANALYSIS OF EVIDENCE AND ARGUMENT

[124] In terms of section 192(1) of the Act, the employee bears the onus to prove the existence of dismissal. The existence of dismissal was not in dispute since the respondent confirmed that the applicant was dismissed.

[125] In terms of section 192(2) of the Act, if the existence of the dismissal is established, the onus rests on the employer to prove that the dismissal is fair. In terms of section 188 of the Act, a dismissal is unfair if the employer fails to prove that the reason for dismissal is a fair reason related to the employee's conduct or capacity.

[126] The procedure followed for the dismissal was challenged on the basis that the case took unreasonably long to be finalised by the respondent. Mr Zitha testified on the procedure that was followed. His version was not at all challenged. The applicant chose to cross-examine him on things that were irrelevant to the case. It was not challenged that the school was on recess as from the 23 March 2018. It was never denied that the applicant was off sick from July 2018 to December 2018. It was the respondent’s submission that the delay if any was not caused by it. I accordingly find that the respondent did not delay the prosecution of the case against the applicant.

[127] The delay in prosecution was caused by the applicant’s absence as necessitated by him being sick. Further, such delay was to the applicant’s advantage because it delayed his dismissal.

[128] On the appeal process, there is no obligation on the appellant constituency to accept new evidence. The MEC of Education, exercised his discretion and decided not to accept new evidence at appeal. Such decision was not defective as there was never an obligation to accept new evidence. It is my finding that the dismissal of the applicant was procedurally fair.

[129] I now address the question of substantive fairness.

[130] In terms of Schedule 8 of the Code, anyone determining the substantive fairness of a dismissal must determine: -

(a) Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
(b) If a rule or standard was contravened, whether or not—
(i) The rule was a valid or reasonable rule or standard;
(ii) The employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
(iii) The rule or standard has been consistently applied by the employer; and
(iv) dismissal with an appropriate sanction for the contravention of the rule or standard.

[131] There was no question about the knowledge of the rules. The applicant was aware of the rule that he could not assault a learner. The Code of Professional Ethics of the South African Council for Educators states in Items 5 and 6 that an educator must avoids any form of humiliation, and refrains from any form of abuse, physical or psychological. An educator must refrain from improper physical contact with learners.

[132] The next question that arises is whether the applicant breached the rule.

[133] The applicant was charged in terms of Section 18 (1)(q) (r) of the Employment of Educators Act 76 of 1998 as amended, which provides that misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she (q) while on duty, conducts himself or herself in an improper, disgraceful, or unacceptable manner; (r) assaults, or attempts to or threatens to assault, another employee or another person.

[134] The respondent’s version is that the applicant went to the school grounds and assaulted Brian Phiri because of what had happened the previous day between Brian and Mrs Krynauw. Applicant’s version was that he only pushed Brian Phiri away as an act of self-defence. His version was that Brian Phiri attacked him.

[135] It was common cause that on 22 March 2018, the applicant’s wife, Mrs Krynauw was involved in what I will term a scuffle with Brian Phiri. This incident was recorded on video by another learner. Brian Phiri testified that Ms Krynauw slapped him, and he pushed her. Mrs Krynauw was later charged and found guilty of assaulting Brian Phiri.

[136] An assault by definition can take a variety of forms, and the legal requirements are the intentional and unlawful application of physical force, however slight, to the body of the complainant, or the threat that such force will be applied. Improper, disgraceful or unacceptable behaviour can as well take a variety of forms.

[137] The respondent called three witnesses who testified on the incident of the 23 March 2018 and on actions incidental thereto. Brian Phiri testified that the applicant called him while he was playing soccer and he refused to go to him. After the bell rang, he went to drink water, as he was drinking water the applicant grabbed him by the collar and held him against palisade wall and told him that if he ever touched his wife again, he would kill him. Mr Ramotshela testified that he is the one who separated Brian Phiri and the applicant. All witnesses, including the applicant’s witnesses confirmed this fact. Mr Ramotshela testified that he heard the applicant say ‘don’t you ever touch my wife again. The evidence of these two witnesses already point to the fact that the incident on 23 March 2018 had something to do with what had happened the previous day. Both witnesses testified that there was no knife at the tap during the incident.

[138] The applicant, however, denied that the two incidents were related. The applicant stated that the only reason he had called Brian Phiri was the fact that he was not wearing full school uniform. When he pushed Brian Phiri against the wall it was only as an act of defending himself because it looked like Brian had something dangerous on his hand behind him. The applicant’s witnesses testified in support of the applicant’s version.

[139] Having assessed all the evidence, I found that the version of the respondent is the most probable version. The version of the applicant is highly improbable for many reasons, which I henceforth deal with.

[140] Firstly, the applicant himself could not proffer any reason as to why Brian Phiri would want to attack him. Him and his witnesses sang the same song, and coincidentally used the same words that Brian Phiri was already on his way to class, he then turned and went straight to the applicant and bumped him with his left shoulder and the applicant defended himself. None of the applicant’s 6 witnesses on the incident told me of the reason behind this action or even at least what they thought could have instigated such an action from Brian Phiri.

[141] Secondly, although during the arbitration in 2020 and 2021 the applicant denied that the incident was related to the 22 March 2018 incident. In April 2018 he did not deny this and the wording of his statement is more telling. The applicant wrote in his own statement on page 96 of Bundle A, he wrote that he said to Brian “if you ever touch a teacher again, I was hoping again that he would say sorry for what he did to Ms Boois the previous day”. The applicant testified that he called Brian initially while Brain was still playing soccer and Brian ignored him.

[142] Thirdly, in order to satisfy the requirement for self-defence, there has to be an attack. The applicant testified that Brian Phiri bumped him. But in his statement, the applicant never mentioned this important part. In fact, he wrote, and I quote page 103 bundle A ‘he refused and just stand still with his back turned to me. I then turned him around by his upper right arm and with my HOD on my left-hand side, push him for about 3 seconds against the prefab wall with my left hand against his collar bone…’ clearly, the attack by way of bumping was imported into the scene in order to satisfy the requirement for self-defence. The bumping with the left shoulder was said by almost all the witnesses of the applicant. One witness, Siphesihle Zulu, could not recall with which hand I had handed the pen but stated he could recall bumping with left shoulder and the applicant using his left hand to push Brian away. How he recalls such details is a big question. Their use of the exact same words, i.e., “Mr Krynauw defended himself” just exposed their testimonies to the fact that they were rehearsed. I will expand on this in coming paragraphs. Siphesihle Zulu even mentioned that Brian bumped the applicant several times. This was only witnessed by him, none of the other witnesses, not even the applicant testified to this.

[143] Fourthly, the applicant testified that Brian Phiri had something behind him. He only later found out that the something was a knife. Brian Phiri denied he had a knife. He even stated during the arbitration that if he had a knife, he would have stabbed the applicant. He asked the applicant that if he indeed had a knife, what stopped him from using it. The applicant, Mr Miles and Mr Ramotshela did not see the knife at the taps where the incident occurred.

[144] The new witnesses who were never at the disciplinary hearing now came and testified that they saw a knife. They testified that they were RCL members, and they were assisting teachers to take students to class. Initially, it was put to Brian that some students who were playing soccer at the assembly side would come to testify that they had witnessed the incident. When they came, they were no longer playing soccer but were now RCL members who were assisting teachers to get students to class. These RCL members clearly did not like Brian, and one of them, Atlegang Legae testified that he had been bullied by Brain Phiri.

[145] Siphesihle Zulu saw the knife as it was allegedly being taken out and opened by Brain Phiri. The knife remained open 25 cm in front of Brian Phiri such that even the applicant could have seen the knife. Siphesihle believed that the applicant defended himself because of this knife. The knife that was seen by Atlegang Legae was differently held to the one seen by Siphesihle Zulu; it was at the back of Phiri as he bumped the applicant.

[146] Soon after the incident, when the applicant made a statement, he never mentioned that Brian had held something discreetly behind his back. This is something that he thought of only 2 to 3 years later. Even in his statement, the applicant mentioned ‘I did knot know by then that Brian had a knife that he was hiding in his blazer’ Para 1 page 96.

[147] These versions beg the question of whether there a knife at the time of the incident at the taps. The problem presented by rehearsed versions is that they can never stand the test of good cross examination. These versions suffered that fate. The version of the applicant on this aspect is riddled with improbabilities. The knife is inserted into the scene at the taps in an attempt to strengthen a self defence case. I accordingly reject this version. It is my finding that the most probable version is that there was no knife at the taps when the applicant pushed Brian against the prefab wall. There could have been a knife after the incident at the tap but that knife is irrelevant for my assessment because it came after the alleged offence.

[148] Fifthly, the testimony of the applicant’s wife on the incident at the taps is also very questionable. Notably, her evidence must be treated with caution because she is the spouse of the applicant. But even if that were not the case, her evidence would not be found to be credible. She admitted that in order to save her and/or her husband’s back, she omitted some information from her statement. That conduct alone is questionable.

[149] She testified that she was advised by the union rep not to write in her statement about what she observed while at the third floor outside her office. She had observed the whole incident between her husband and Brian Phiri as it happened. She was apparently advised that such information could be used against her. She does not understand how such information could be used against her. Frankly, neither do I. The information was in relation to her husband case and could potentially have been of assistance to her husband’s case. The only reasonable conclusion to draw is that the information is not in her statement because she never observed it.

[150] She, like Mr Legae and Mr Zulu were just imported into the scene. Like their evidence, hers also suffered the same fate of not withstanding cross examination. She even testified that Brian Phiri was from the group of learners who were dancing to the jukebox and those learners were in the very same vicinity at or near the taps. This was never the version of any of the witnesses. The other witnesses testified that the jukebox was on the other side, even marking on page 64 of Bundle A where the sound was coming from. They testified that Brian was from playing soccer and not from the jukebox dancing group. The evidence of Mrs Krynauw regarding the incident at the taps is thus rejected.

[151] Mr Miles testified that he does not know who started the commotion between Brian Phiri and the applicant. He could not see with which hand they touched each other because it happened in a split second. In his words, he stated that it was not like a video where you can watch it on a slow motion. This sounds reasonable. The witness however was pressured by the applicant’s leading questions to make some concessions. He conceded that Brian Phiri bumped the applicant with his left shoulder, this concession contradicts his earlier reasonable version. He stated that he believed that the applicant would not just touch a learner. He is of the view that the teacher always falls victim, and the system does not protect the teacher and it is quite sad that there is a case against the applicant. This makes it clear why Mr Miles would want to defend the applicant’s course. He conceded that looking at the statement of the applicant, personal issues came to play. He conceded that he is the one who suggested that the applicant and his wife go to the family to apologise.
[152] These are but few reasons why the version of the applicant is improbable.

[153] Further, the applicant’s version was that there was a vendetta against him, and people were colluding against him. He suggested that even his erstwhile union representative could have colluded with the headmaster. Even the district officials are out to get him. He accused the employer’s representative right in his face at the arbitration of not doing his job properly. He even accused me of defending the respondent, an accusation I did not take lightly and warned him. Even me asking his witnesses question and allowing the witnesses an opportunity to answer was viewed as bias especially if the answers they provided were not in his favour. I have no control on the answers given by witnesses.

[154] The big question would be ‘for what reason’? Why would everyone be out to get the applicant. No reason was given to me as to why such a vendetta against him. But having sat in more than 12 sittings with the applicant, I have realised that the applicant himself has no respect for rules and authority. The record will show, even after I showed him, directed him, or forbid him from his unbecoming conduct, he would persist in his behaviour. I would then from that conduct understand how and why the headmaster, his union representatives and the district officials are labelled as villains who are out to get him.

[155] The applicant testified that he was forced to go to Brian Phiri’s house by the headmaster. Even when Mr Miles agreed that it was his idea, the applicant still insisted on pushing the buck to the headmaster. Mr Miles stated that he suggested that the Krynauws should go and apologise, which he said could mean ‘clear the air’. It is indeed highly improbable that him and his wife as victims would be the ones to go to the aggressor’s place to seek peace. To even offer to replace a blazer which according to him was never worn by Brian Phiri is improbable. About the blazer, the applicant in his statement has referred to it couple of times; for example, he wrote in his statement that ‘I did not know by then that Brian had a knife that he was hiding in his blazer ’ Para 1 Page 96. It is my finding that the evidence supports the probability that Brian had worn his blazer at the time of the incident.

[156] The evidence of Ms O’Brien regarding the footage is probable. There are supporting documents regarding the arson and the electrical equipment that was replaced. It is probable that the CCTV footage was affected by this arson. Except for arguing that the documents may have been falsified, there was no challenge to her evidence.

[157] It is trite that the labour disputes are decided on balance of probabilities and not beyond reaonable doubt. It is my considered view that the probabilities favour the respondent. It is my finding that the respondent has proved on balance of probabilities that the applicant is guilty of allegation 1 as charged.

[158] I now turn to the question of appropriateness of the sanction.

[159] Schedule 8, Code of Good Practice: Dismissals, item 4 and 5 provides a follows:-

(4) Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination. Whatever the merits of the case for dismissal might be, a dismissal will not be fair if it does not meet the requirements of section 188.
(5) When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee’s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself.

[160] Considering the mitigation, the applicant has worked for the respondent for 9 years and has lost his livelihood since the dismissal. It is noteworthy to state that the commission of a serious misconduct tilts the scales to an extent that even the strongest mitigating factors, like long service are likely to have a minimal impact on the sanction to be imposed.

[161] It should be noted that the applicant did not have a clean disciplinary record. He was previously charged and found guilty for assaulting a learner. He never challenged this finding at the ELRC although he could and would have solicited the assistance of his union to challenge it.

[162] Where it is apparent from the nature of the misconduct that the trust relationship has been irreparably broken down it is not necessary to lead evidence to prove the breakdown. I am guided in this regard by the case of Autozone v DRC of Motor Industry and Others (2019) 40 ILJ 101 LAC).

[163] Considering all these issues, it is my finding that the dismissal is a fair sanction under the circumstances, and consequently procedurally and substantively fair.



Award

[1] The applicant’s dismissal was procedurally and substantively fair.

[2] The case against the respondent is dismissed.

[3] I make no order as to costs

Dated on the 15th day of March 2021