Case Number: ELRC251-20/21WC
In the matter between:
L. L. SNYDERS
DEPARTMENT OF EDUCATION – WESTERN CAPE (WCED)
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. This matter was conducted via the Zoom virtual platform on 4 February 2021, 1 March 2021, 4 March 2021, 5 March 2021, 31 March 2021, 15 April 2021, and 11 May 2021. The applicant, Ms. Lee-Ann Liezel Snyders (Snyders), was represented by Mr. C. Timothy (Timothy), an attorney. The respondent was represented by Ms. S. Flandorp (Flandorp), its labour relations officer.
2. Intermediary services were provided by Ms. Stephane Marks (Marks). At the close of this matter the parties requested permission to submit closing argument in writing. The parties agreed to submit their written closing arguments by no later than 18 May 2021. The applicant failed to submit written closing arguments.
THE ISSUE IN DISPUTE
3. I must decide whether the dismissal of the applicant was fair.
THE BACKGROUND TO THE DISPUTE
4. The applicant worked for the respondent from 2013 and at the Primrose Primary School as an educator post level 1. The applicant was dismissed on charges relating to misconduct on 20 March 2020 at which time she earned a gross income of R295 773.00 per annum.
5. In terms of Section 138(7) of the Labour Relations Act 66 of 1995 as amended, I am required to provide brief reasons with my award. Accordingly, I shall only refer to the evidence I consider relevant to determining the dispute between the parties.
SUMMARY OF EVIDENCE AND ARGUMENT
6. A common bundle of documents was handed in. No objections were recorded. The respondent called five witnesses, the ex-principal, Ricardo Benito Ward(Ward) and four minor learners. For the protection of the identities of the minor witnesses they will be referred to by reference to a letter in the alphabet in accordance with the charge sheet. The applicant testified under oath on her own behalf and also called Mrs. Ulene Smith(Smith) and one minor learner (learner B) as witnesses who testified under oath.
7. It was common cause that the applicant worked for the respondent from 2013 and as a post level 1 educator. She was dismissed on 9 March 2020 on charges of misconduct as per the charge sheet. At the time of her dismissal the applicant worked at Primrose Park Primary school in Primrose Park and earned an annual salary of R295773.00. She had been found guilty and dismissed on 14 of the 17 charges. The applicant had been afforded a fair procedure and challenges only the substantive fairness of her dismissal.
The evidence for the respondent:
8. The applicant called her and other learners names. These were names given to the learners by other learners. Before the conclusion of the lesson the applicant would have the children play games such as wrestling on a mat which she brought from home. This was confirmed by learner B who included games such as throwing a bean bag and dodgeball.
9. The applicant would also have a learner bang wooden blocks on someone’s back and the learner who had the blocks would also bang it on the applicant’s back.
10. Learner C was never asked to bang the wooden blocks on the applicant’s back but also did not know the names of the children who did. Learner C’s mother did not do anything when she reported the name calling to her while Ms. Abrhams(Abrahams), the grade 5B class teacher told her to write it in her classwork book. There were not any other games played.
11. The applicant had also put her and another learner out of the classroom during an assessment when learner C had asked the other learner for something.
12. The applicant had smacked learner F behind the head and in the face when he had laughed at a joke a friend made. His father had come to the school and complained to Ward about it. He could not remember the joke or the name of the friend. Learner F could not confirm under cross examination that Abrahams also played games during class time.
13. He confirmed the name-calling of learner C and others, the applicant’s use of the F-word and putting others out of the class. He confirmed the playing of games during class time and could remember only the games with the beanbag and the tennis ball and also the fighting games on the mattress.
14. He also testified that the applicant had said he had rabies when his eczema had flared up. He did not mention this at the disciplinary hearing and had told only his mother. He had not spoken to anyone else about that.
15. Learner A confirmed the playing of games with the beanbag, the tennis ball and the play-fighting on the mattress.
16. He had seen the applicant throw the beanbag against the head of learner D and therefore did not want to participate in playing that game. He was afraid it could hurt a learner as with learner D and therefore might involve parents coming to the school.
17. Under cross examination he testified that it was a tennis ball that had been thrown against learner D’s head and that it was another learner who had done it.
18. At the same time, he testified under cross examination that the applicant would throw the beanbag at learners as a prank and pretend that it was not she who had done so. He could not remember if anyone had been hurt when she did so.
19. Regarding the wrestling game he testified that Learner C had brought the mattress from home as he had seen her bringing it into the classroom. They had all testified to this from a page they had at the disciplinary hearing.
20. The applicant had her favourites in the class. He was not one and neither were learner F and others. Another learner was a favourite as she would ask him to do things for her, even massage her.
21. He also testified that the applicant, out of the blue, and during a history lesson had asked a question in the class as to who had seen their mother’s vagina. He had answered that he had as he came out of it. He did not answer her follow up question as to whether it was hairy.
22. He confirmed the name-calling by the applicant of other learners. She had called him buckethead because of his haircut.
23. He and his friends would meet with Abrahams and report to her what had happened in the applicant’s class and she would write it in a book. Abrahams told them that Ward knows about this.
24. The incident of the applicant’s telling him to ‘F’ out of the class happened in the second term 2018 and that of the reference to the vagina happened before that. Although the applicant was largely absent from school during the first half of the year she would during that time attend at school to give them their work and then she would leave again.
25. Learner D also testified that the applicant’s putting him out of the class during contact time while it was raining. When he returned to the class from standing in the rain his socks were wet. This, he confirmed under cross examination, was because he had stepped into a puddle of water by mistake. The puddle of water had formed as there was a hole in the roof where he was standing and the water had come through it.
26. He also confirmed that the applicant frequently put learners out of the class during contact time, and often used the F-word and derogatory names when addressing them. She had on an occasion told him to sit under the table like a dog. She blamed him for the conduct of other children.
27. Ward testified that he had become aware of the allegations against the applicant when Abrahams reported to him and the deputy principal, Gail Beukes. Abrahams had said the applicant was calling the learners names, using the F word, being strict in class, and asking them to massage her head.
28. Ward and Beukes went to the classroom where the children confirmed the allegations. Thereafter Ward completed the 22A form in terms of the “abuse no more” policy and forwarded the complaint to the labour relations department of the respondent.
29. There were 2 complaints, one in September and one in October 2018, the first by the parent of learner F’s father complaining that the applicant had smacked him in the head and the second of the learner whom she had verbally abused by name-calling and putting him out of the class during an assessment.
30. The department later sent two investigators who interviewed the learners, Abrahams and Ward. Later the department sent Ward the charge sheet dated 26 October 2018 to serve on the applicant, with the disciplinary hearing schedule for 12 November 2018.
31. Thereafter the applicant was booked off sick until the end of November 2018. She did not return to work at the end of November but extended her sick leave to the end of the year. She returned to school in the first week of February 2019.
32. At the disciplinary hearing, which had been re-scheduled due to her being off sick, the applicant was found guilty on a number of charges and dismissed.
33. Thereafter the applicant obtained a protection order against Ward for sexual harassment and intimidation which was ultimately settled out of Court at the Magistrates Court. Ward thought the protection order had been obtained because he had reported the matter of the applicant’s conduct to the WCED.
34. The outcome of the disciplinary hearing had not been implemented immediately as the applicant had lodged an appeal, the outcome of which was given only in March 2020.
35. Ward testified to the behavioural challenges posed by the learners at the school citing particularly the problem with defiance. The learners defied the teachers a lot and parental support was of a low level.
36. The parents had complained of the applicant’s name-calling and derogatory language at the start of 2017. Ward had referred this to the circuit manager, Mrs. Engelbrecht (Engelbrecht), who called for a meeting to offer support to the applicant.
37. The applicant refused to attend the meeting, which was held during the day while the applicant was busy with a class assessment.
38. This meeting was not considered a hearing otherwise the correct procedure for that would have been followed by affording the applicant proper notice and union representation and other appropriate rights.
39. These are issues to be dealt with as progressive discipline by the principal as the line manager.
40. The meeting was not to implement progressive discipline but was a supportive meeting.
41. Thereafter, Engelbrecht had written a letter to the applicant explaining what the meeting would have been about and invited her. Ward could not recall when the letter had been handed to Snyders. He could also not recall whether the applicant had lodged a grievance against Abrahams in 2017.
42. He had raised issues regarding assessment irregularities against the applicant in 2017. It was not a meeting set by Joshua, the HOD who raised the complaint, as she had no authority to do that. A committee would investigate the matter and the teacher involved would be asked for an explanation. The applicant had not lodged a grievance because of that but could have said she was not happy the way it was dealt with. He would not have said to her that she could not ask him anything about it but rather that the HOD was dealing with the matter.
43. He could however not recall as it was a bit sketchy.
44. This issue was more about marks entered incorrectly on the mark-sheet
45. He thought the marks had been corrected so could be used in the end of year report and the matter was dealt with early the next year.
46. Progressive discipline was applied at a meeting where the applicant’s union representative was present and a verbal warning was imposed.
47. He confirmed the applicant’s version that in the first and second terms of 2018 there was severe absenteeism by her relating not only to sick leave. He also confirmed that the applicant had lodged a grievance against Joshua at the beginning of 2018 regarding swearing at her. Progressive discipline was implemented and a verbal warning imposed. He confirmed it pertained to an incident where Joshua had told the applicant to F-off as she is “fuck-all” and should resign as she would like to get rid of her.
48. He had dealt with this issue as he did since he did not consider it necessary to escalate it to the labour relations department of the respondent.
49. There were other cases similar to that of the applicant which he did escalate to the labour relations department. These involved name-calling and corporal punishment such as that of Abrahams. She was not dismissed nor given a verbal warning but was fined.
50. Also in March 2018 he had called a meeting with Abrahams and the applicant consequent upon a complaint the applicant submitted from her learners. He had become aware of a toxic rivalry between the classes of Abrahams and the applicant. He had addressed this with the classes separately informing them it was not part of the code of conduct.
51. While one of the witnesses had said he had not addressed them, Ward suggested he may have given that version as it could be difficult for a learner to remember these details. He added however that he was not qualified enough to say so. He could not recall a further grievance lodged by the applicant in the second term against Joshua. He agreed that there were complaints which the applicant lodged against Joshua and Abrahams in June 2018.
52. He could not recall that he had refused to deal with the complaints against Joshua and Abrahams. These were handwritten complaints from the applicant’s learners about Joshua’s embarrassing and scolding them whenever Abrahams brought her into their presence.
53. He thought he had done something about other complaints in June 2018 against Abrahams about failing 26 of 34 of the applicant’s learners in geography.
54. There were also complaints against Joshua that he could not recall ,of having applicant’s learners squat in the class, four months before the current complaints against the applicant which he did nothing about it.
55. He did not know of a complaint by the applicant against Abrahams in the applicant’s IQMS assessment in August/September 2018.
56. He testified that it was the applicant’s opinion that he not only did not assist but did not want to assist her.
57. Abrahams had reported issues in September 2018 to him and Beukes. In his chat with the learners about this, they spoke of the applicant’s name-calling, that they were scared of the applicant, she made fun of their parents, bribing them with yoghurt and that she sleeps in the class, and asks them to massage her head.
58. He received complaints from two parents in October 2018 which were of her slapping learner F and putting a learner out of the class and verbally abusing him. These complaints were reflected in charge 14. He had not escalated the issues reflected in charges 15 and 16. He does not know who learner “G” is.
59. While Ward did not know if the applicant would be suspended, were the charges serious, he confirmed that but for her sick certificates she would have worked to the end of the year.
60. The disciplinary hearing had been postponed due to the applicant’s ill health and convened in February 2019 through to October 2019.
61. Thereafter there was one specific complaint from a parent regarding name-calling and intimidation of another learner. The labour relations department said that as there was a pending case but that it would investigate the matter afterwards.
62. To her version put to him that there were no issues of a similar nature during that time but that throughout the process there was just this group of learners and Abrahams laying complaints and that they were just lying and coerced into saying things, Ward chose not to comment .
63. He testified that 80% of the learners at the school were from Manenberg, an area in which prevailed poverty, alcohol and drug abuse with learners suffering from foetal alcohol syndrome. The school had behavioural challenges with the learners being defiant of their teachers a lot. Parental support was also at a low level.
64. When Abrahams had reported the issues to Ward he did a fact finding with her class. His thinking was that the learners already had to endure so much adversity in the community and that the school should provide a safe haven and not treat them as the community does and provide safety for them and not what was reported to him.
65. He had received complaints from some parents regarding derogatory language and name-calling at the beginning of the year. This kind of conduct warranted a progressive discipline approach. The supportive meeting with the circuit manger was arranged instead.
66. While the issues between the applicant and Abrahams had never been sorted out, he had told the learners regarding the rivalry that they should not engage in such behaviour.
67. Regarding the issue of the protection order sought by the applicant against him, it was settled on the basis that the defendant will not swear at the applicant, hug her or sexually touch her, nor speak about her to others unless work related. The settlement was out of Court and not made an order of Court.
68. Besides the allegation levelled against the applicant, Ward had no other problems with her. Her allegations that he swore at her and made sexual advances were not true.
69. While she had still been in the employ of the respondent until her dismissal, she had been off sick since the outcome of the disciplinary hearing and that of the appeal.
70. Joshua confirmed the incident between the applicant and herself in March 2018. She had been provoked by the applicant’s divulging information from a meeting the previous day contrary to instructions not to do so.
71. The applicant had told her that she (the applicant) was the head and she(Joshua) was the tail. The applicant was undermining her position as Head of Department and angered her.
72. She admitted using the F word against the applicant but denied that she had told her she wanted her fired as this was not in her power.
73. She also denied throwing the applicant’s bag onto the ground. She could not remember whether the applicant and she were in Ward’s office at the same time.
74. She had been given a verbal warning for her transgression.
75. The evidence for the applicant:
76. Smith learned of these issues when the applicant showed her the charge sheet on Page 32 of the bundle of documents. Smith was unaware of learner B having testified at the disciplinary hearing of the applicant. Learner B had confessed to her that what she had said was untrue.
77. She could not believe that her child would do this against the applicant. She knew the applicant and that she went beyond what is required of her as a teacher to teach her children. Learner B had told her of the other children involved and that they had also made up stories.
78. When she consulted with parents of some of the other children the parent of learner C said she believed her child while another parent said she knew the applicant was a good teacher and that she would testify for her.
79. Smith was surprised that the school had not called her to the school to deal with this as it does when the children misbehave. Smith’s other daughter, who was in the applicant’s class never had any complaints about the applicant.
80. After Smith had spoken to the parent of learner C learner B said that she was speaking for herself.
81. The applicant testified that Ward had called her to a SAIC (school assessment internal committee) meeting in December 2017 but this was cancelled later when he referred the matter directly to the labour relations department. The issue pertained to examination irregularities.
82. On 6 December 2017 all her reports were signed off, validated and given to parents even though there were these allegations of irregularities. That same day Ward returned to the applicant her marksheets, the examination scripts, flash drive and memoranda taken from her class on 23 November 2017. She did not have a chance to look at it. When the applicant met with Flandorp at the school on 1 February 2018, for the first time, she learned what the examination irregularities were.
83. She had told Flandorp that she had informed the HOD the week before that she was available to rectify issues of validation even if she had to do so on a Saturday.
84. Then she sent to Flandorp her moderation sheet, schedule and memory stick for 2017 that determines who progresses to the next grade. These documents were also signed by the principal, the HOD and the circuit manager to meet the validation deadline. Reports were then given to the parents. She felt coerced into signing the documents under threat of insubordination for not doing the work.
85. The applicant felt very unhappy as she had to sign each report basically validating them saying moderation had been done and everything was approved at that point. It was legal, as the principal, the circuit manager and the deputy principal had signed.
86. The next month Ward gave her a verbal warning for examination irregularities.
87. The applicant conceded under cross examination that it was a progressive disciplinary meeting that she was invited to after which a sanction was issued.
88. Regarding the incident where Joshua had verbally assaulted her, the applicant confirmed her version put to Ward that when she was bringing it to Ward’s attention, Joshua entered his office saying this is not what it seems, as the applicant was overreacting and if she wanted an apology she would say she was sorry. The applicant nevertheless asked for a grievance form as she had been humiliated in the presence of her colleagues, parents and learners.
89. The feedback the applicant got from Ward on 8 March 2018 was that there would be an ad hoc agreement that there will be two HODs, Beukes and Joshua and with Beukes working with the applicant and Joshua with the other half of the teaching component.
90. In accordance with the policy of referring grievances to the principal, introduced by Ward, the applicant, on 13 March 2018 lodged handwritten complaints by her learners. The nature of the complaints was corporal punishment as well as Abrahams allowing her learners to play dominos in her class and allowing her learners to rub her shoulders and that Abrahams was using the learners in her class to hit the learners in her class. Overall, the applicant’s learners were very unhappy as Abrahams seemed focused on competition between the two classes and she tried to make the applicant’s learners feel inferior.
91. Ward was angry and unhappy about the complaints given to him in the first break and expressed this at a meeting with the applicant, Abrahams and himself during the second break. Abrahams and the applicant had said to him that it seemed like a class rivalry. But he paid no attention, choosing to rather bully the applicant.
92. There was also no evidence of Abrahams having been disciplined and she had also owned up to having done those things. None of her learners had been called to the WCED to testify at a disciplinary hearing.
93. When the applicant returned to work on 6 June 2019 from an extended period of sick leave she brought to Ward’s attention complaints from her learners that Joshua was scolding and embarrassing them in Abrahams’ class when the latter called her to address them.
94. Her learners also complained of Abrahams giving her class the answers for mathematics examinations prior to the examinations so that they would get top marks.
95. They confirmed that Joshua and Beukes knew of this and tried to get Ward to hear their case but this never happened. On 15 June 2018 she lodged a grievance against Abrahams for the failure of 26 of her learners in geography. She had also informed Beukes of this. Both Ward and Beukes denied her request to afford her learners a multiple assessment opportunity for her learners.
96. On 31 August 2018 Beukes informed the applicant that Abrahams was not willing to assist with the applicant’s IQMS but did not give reasons. Beukes did the assessment with a replacement grade 4 teacher from the school governing body.
97. The applicant mentioned in her IQMS report that she had to survive workplace bullying, attacks on her professional competence damage to her reputation and daily threat to her professional status through overwork and false attacks from teachers and learners used by certain individuals. She also stated therein that she had come to accept that she could not ask the principal for support or good management practices to be applied to all staff.
98. On 16 October 2018 she was called to the office by Ward and Mr. Joseph, and Mrs. Mortlock (2 officials from the WCED) regarding many charges and allegations against her. She was not allowed a representative.
99. Ward gave her the charge sheet and suspension letter in an unsealed envelope and wanted her to sign for it. She did not know of these charges before that. Ward instructed her not to read the documents in the office and to return to her class and carry on teaching.
100. The applicant identified the learners cited only with reference to a letter of the alphabet in the charge sheet. These were the eight learners the respondent said had complained. Only four of these testified.
101. The applicant does not recall calling learner C “a zero”. She could have called her anything. It was unlikely she would call the learner “Zero” on just one occasion. She raised the name-calling as an issue with the class.
102. This was on account of the learner telling the applicant she was tired of her classmates calling her “nike tshappie” on account of a scar she has on her forehead, which resembled the Nike logo and which was the result of an injury she had sustained.
103. The applicant had told the class to stop the calling of names and intimidation and also addressed it with Abrahams as these things were disruptive in class. The applicant testified to the identity of those learners whom a learner had testified was responsible for the making up of the names and name-calling. These were referred to as M, N and O.
104. Regarding calling a learner “black muscle cracker” two other learners called him this name on a visit to the aquarium when the three boys were in a group and when a tour guide pointed out and named the black muscle cracker. Regarding charge 8 the applicant could not recollect the conduct stated in that charge.
105. The applicant also denied asking a learner to sit under a desk. She also did not instruct any learner to attack another and there was no evidence led in this regard.
106. Regarding charge 11 the learner informed the applicant that he had not attended at the disciplinary hearing because everything was a lie. She had made a recording of this but was told at the disciplinary hearing that a recording may not be used.
107. Regarding the allegation that the applicant had told a learner to “F” out of the class only learner D had testified to this and there was no corroborating evidence. The applicant denies having done this.
108. The applicant denies that anything happened in October 2018 that led her to smacking learner F.
109. The learner whom the applicant was charged with grabbing by the neck did not testify at this arbitration and no evidence was led pertaining to this charge. The applicant preferred not to comment.
110. As there was no testimony regarding charge 17 the applicant decided not to deal with that.
111. The applicant kept her relationship with Abrahams professional and was aware of the rivalry between the classes. Abrahams was aware that the applicant would take to Ward the complaints her learners had about Abrahams. These included corporal punishment, swearing and putting them out of the class.
112. Although the applicant was given a letter pertaining to suspension, she was off work due to being booked off for ill health returning in 2019.
113. Although she had signed a letter inviting her to the hearing in March 2018 at which she, her union representative and Ward were present, she did not consider it a hearing. She was of this view because the earlier meeting with Flandorp dealt with the issues of examination irregularities and at which she had given enough evidence. She had been informed at that meeting by Flandorp that their meeting pertained to examination irregularities and that it was her right not to engage with Flandorp and had responded that she had nothing to hide.
114. She had been informed by Ward that the labour relations department had advised him to deal with the matter progressively. At the meeting she had stated her version and Ward also stated his; and at the end of the meeting she had said she had nothing further to add. She had received a notice to attend and her right to representation. She was represented.
115. In 2017 she had refused to attend a meeting with Engelbrecht but had attended counselling in accordance with a letter from Engelbrecht advising that the meeting was to be supportive of her and suggesting she might call Engelbrecht if she needed anything and to attend the wellness program for counselling. The applicant did attend the counselling. Regarding the examination irregularities the applicant did not attend that counselling.
116. The applicant also did not receive support from management. She also did not raise her unhappiness at the school with Engelbrecht on the support offered in the letter Engelbrecht had given her, as Ward had said all grievances must come to him and not the circuit manager. There was a rule at the school that problems should not be addressed with the circuit manager.
117. On 13 November 2019 the SAPS served an interdict on the applicant from the chairperson of the school governing body and parent, Mrs. Z. Williams, regarding an allegation of bullying her child.
118. Williams had said that she had done this on allegations from her daughter as nothing had been done after she had spoken about this to Ward, the circuit manager and the department. The applicant had not known of any of this and had been embarrassed. The applicant had sought a protection order against Ward as he had conducted himself in an unprofessional manner discussing her with other people. She had to sort him as she could not have the SAPS treat her like a criminal.
119. He had tried hugging her one day and kissing her on her birthday which made her uncomfortable. He was becoming more unprofessional.
120. The applicant confirmed that she had been found guilty on 14 of the 17 charges against her. She denies the allegations contained in the charges.
121. She testified that the learners may have made up these stories because of the rivalry between the classes, and they may have been intimidated for example by government employees visiting them and influence from Abrahams. All except learner C said she had written the complaints in a book. Learner D said he had not told his mother; Smith’s testimony was that she had never given permission for her daughter to testify at the disciplinary hearing; had the parents known of this then perhaps the learners would not have made the allegations. The complaints had come from one group of learners perhaps as an offset to complaints she had, peer pressure must have been immense. The learners had not received any trauma counselling or medical reports. Learner A had testified that at the disciplinary hearing he had been given a paper with what to say written on it. There had been coaching and heavy preparing as what to say. There were learners who were not testifying and versions had changed, so there was very little substantively. No adults had been called to testify and the sanction itself was based on what the learners had told Abrahams but they never went according to what learners said in their testimony.
122. Learner E told her it was all lies. She had recorded this but was told she could not submit it at the disciplinary hearing.
123. There were no social workers involved and the learners got away with whatever they wanted to say and knew they could get away with it.
124. Her representative at the disciplinary hearing, Mr. Cassiem, said to her that he had been advised by Flandorp that the applicant withhold her version. The sanction of dismissal was largely based on the fact that she had no version. This is stated in the report of the presiding officer.
125. Learner B testified that the applicant was a nice teacher, not nasty and was kind to the children. What she had said in 2018 about the applicant’s having asked her if she had felt a penis in her throat was untrue. Even her saying at the disciplinary hearing that she had felt sad when the applicant had said that to her was untrue. She had said so due to peer pressure, “the children went after each other”. What she had said were all lies as when she had been a learner in Abrahams’ class and Abrahams would ask them if they had complaints about the applicant which she would then write down and take to Ward.
126. They were the children who had testified against the applicant and who wanted to get rid of her. They did not think the lies would come this far.
127. She however did not know about the complaints of those other learners.
128. They had not been prepared by anyone regarding the disciplinary hearing but were only told by Abrahams to say that which she had written on a piece of paper.
129. They had decided in a group while sitting in Abrahams’ class what each one would say. The group knew that what was said were lies.
130. She had not given the letter requesting permission from her parents to her mother but had signed it herself. Otherwise, her mother would have found out that these were all lies.
131. There was a rivalry between the two classes. There was bullying by one learner of others who did not tow the line. The children were scared of him and he would say they were lying even though they told the truth.
132. There were teachers at the school who put children out of the class e.g. Miss Sherry. Abrahams would let those who had completed their work play dominos during class-time while those who had not finished their work continued working.
133. She now felt sorry about the applicant as they had lied about all of this. Even what she had said at the disciplinary hearing about the game with the bean bag was a lie.
134. She was telling the truth at the arbitration as her mother had asked her if what was said were all lies or the truth while holding the Bible in front of her.
135. She had said it was all lies.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
136. At the outset of this analysis I must point out that I will be dealing with the subject matter of 11 of the 17 charges rather than the charges on an individual basis. The charges were brought against the applicant in terms of the Employment of Educators Act section 18 (1). This was on account of the applicant’s having been found not guilty on some charges and on account of the respondent’s not having led evidence on others.
137. It is noted too at the outset that the applicant had been found guilty at a disciplinary hearing of 14 of the charges and not guilty of three of them.
138. The charges of which the applicant had been found not guilty are charges 4, 10 and 11. These charges will accordingly not be considered in this award. I do however mention here that significant amongst the charges of which the applicant was found not guilty is one pertaining to allegations of massage by learner B. and one pertaining to allegations of an alleged racial slur against learner E.
139. In respect of the latter the applicant had testified that this learner had refused to testify because the allegations were untrue. He had consented to this being recorded which the applicant did but the applicant was denied the right to submit this into evidence at the disciplinary hearing.
140. I have no reason not to accept the applicant’s testimony in this regard particularly in the light of the finding of not guilty on this charge at the disciplinary hearing.
141. I find this to be indicative of a propensity of the learners for not telling the truth in the allegations manifested in the charges against the applicant.
142. Regarding the finding of not guilty on charge 10 which deals with the allegation of assault by a learner instructed by the applicant on another learner, it is odd that the content of this charge mirrors exactly a complaint by the learners of the applicant against Abrahams which the applicant lodged with Ward with insignificant consequences to Abrahams. This is once again reflective of a toxic rivalry between these classes testified to extensively throughout these arbitration proceedings.
143. It is in my view this rivalry that manifests a desire to disadvantage the teachers of these opposing groups of learners. This in turn is manifested in the testimony of Learner B regarding an objective of the group bringing the allegations of having the applicant dismissed.
144. Regarding the issue of the applicant’s having had a learner massage her back I find the evidence pertaining to massage to be very diverse. This includes testimony of massage with wooden blocks and testimony through Ward of her having her head massaged which information he could only have gleaned through the reports of Abrahams.
145. The testimony regarding the massage with wooden blocks appears that it may have been part of an exercise in the classroom involving the learners banging the wooden blocks on the backs of other learners. If it were so that the applicant had instructed a learner to also bang on her back with the wooden blocks in these circumstances, I can hardly find this warrants being called an offence let alone one that should lead to any charge.
146. The reason I conclude that it was unlikely that the applicant had been massaged by a learner is the testimony of Ward pertaining to the allegation of massage pertaining to massage of her head. I can hardly imagine the applicant instructing a learner to bang wooden blocks against her head.
147. Regarding the allegations of name-calling, I found the testimony of learner C to be contradictory in the sense that she had said that the applicant had given her the names while under cross examination her testimony was that the applicant may have heard it from elsewhere.
148. Then further in this regard the testimony of learner A was that it was the applicant who had made up that name. On a balance of probabilities the testimony of learner C, I find to be the more likely especially given the fact that it was the testimony of learner A that was generally the most shocking and uncorroborated. I refer here particularly to his testimony regarding the allegations in charges 1 and 2 and which was uncorroborated.
149. The further testimony of learner F regarding the applicant’s having said to him he had rabies because of his eczema and which he had not raised at the disciplinary hearing is also uncorroborated.
150. The testimony of learner F in particular and learner A regarding the name-calling may be sufficiently corroborative for me to conclude on a balance of probabilities that this did in fact take place. I will however deal with this allegation in more detail below.
151. Their testimony regarding the swearing when putting learners out of the class may also be sufficiently corroborative for me to hold on a balance of probabilities that it was true. This too I will, however, deal with in more detail below.
152. I have however observed that the nature of the name-calling which the applicant may have been guilty of cannot be said to have been aggressive name-calling or insulting or demeaning. I do however stress that name-calling should not take place at all.
153. I do however not believe that the allegations of name-calling and the number of occasions it had been alleged it had taken place, would warrant a sanction of dismissal. At best a warning for this conduct coupled with counselling and other progressive disciplinary steps would be appropriate to impose as a sanction.
154. I am further of the view that the same approach should be adopted regarding the swearing, which the applicant may be guilty of. I do however deal with this in more detail below.
155. In this regard the testimony is also of other teachers having received lessor sanctions on similar allegations. There appears to be generally a difference in the application of the rules to the applicant and to others.
156. It was learner D’s testimony which was also uncorroborated regarding his having been told to sit under the table. This, like most of the averments of the learners who were witnesses for the respondent, would have been easy to remember and testify in corroboration of, had it actually happened. He in fact did not testify as to the length of time that he was asked to sit under the table although it is alleged in the charge sheet that this was for an extended period. This constitutes a sufficient contradiction for me to conclude that the allegation itself was probably not true.
157. Most of the evidence led at this arbitration points in fact to fabrications made in meetings of the group of learners making the allegations against the applicant.
158. I am of the view and find that learner C had deliberately tried to make things as difficult as possible for the applicant by testifying as she did in her evidence in chief regarding the name-calling. Although she had disputed the version of the applicant that she had told the applicant that she had not liked the fact that the other children called her those names and that the applicant had tried to address this with the class, I am satisfied that the more likely of the two versions is that of the applicant. This is my view especially as this was an allegedly once off happening even on the version of learner C herself.
159. Furthermore, and in respect of all of the allegations of name-calling by the applicant, the overall conspectus of the evidence in this regard shows a propensity amongst the learners themselves for name-calling. For this reason and for the fact that there is the allegation of her calling learner D black muscle cracker which had been testified to without explanation as to the circumstances of the name-calling, I find the version of the applicant more plausible.
160. Regarding the allegation of playing games in the class and with specific reference to the game played with a tennis ball, the testimony was of two different versions of what this game was about. On the one hand it was described as a game where a tennis ball was thrown at a learner whose task it was to dodge the ball. On the other hand this was a game where a learner stood facing the board with his back to the class and whose task it was to identify the learner who struck him with the ball when throwing it at him.
161. Regarding the allegation of a beanbag thrown against learner D’s head there once again was contradictory testimony in this regard. On the one hand it was testified it was a beanbag while on the other hand it was a tennis ball. On the one hand it was also said to have been the applicant and on the other hand it was said to have been a learner. In any event it is to be noted that it had been testified to by the respondent witnesses that the applicant would toss the beanbag at somebody as a prank and not with the intention to assault.
162. It is also to be noted that while testifying about the wrestling on the mat learner A revealed that at the disciplinary hearing all the learners testified from what was written on a page which had been prepared by Abrahams.
163. Regarding the allegation pertaining to the description of his mom’s vagina, learner A’s testimony was to the effect that this had happened in the first term or early in the second term of 2018. It is noteworthy that the applicant had been charged with this incident having happened during the third term.
164. The manner in which it was testified it had allegedly come about is quite bizarre to say the least viz. that the applicant had asked the question out of the blue during a history lesson. This is bizarre as the testimony of the learners was of the applicant’s being a teacher who in previous years had not conducted herself in this manner. This is in fact so of all the conduct the applicant is alleged to have engaged in in the third term of 2018.
165. This alleged conduct is that likely of a person who has a propensity for such conduct and is thus contradicted by the testimony of these learners themselves.
166. Learner A’s response to the question that his testimony is of the applicant’s having uttered those words before the swearing incident in the second term but that she had been charged of doing so in the third term was that although the applicant was frequently absent in the first half of the year she would nevertheless come to school on certain days to give them their work and then would leave again.
167. Even this testimony does not support that in terms of which the applicant had uttered these words out of the blue during a history lesson. It does not place her in a classroom during a history lesson or any lesson for that matter.
168. I am satisfied to hold that this is a fabrication by learner A. It is to be noted that this testimony regarding the mom’s vagina is not corroborated by any other witness. This is highly surprising given the shocking nature of utterances of this nature.
169. In fact the testimony of learner B supports this view, her having recanted what she had said at the disciplinary hearing about a penis stuck in her throat.
170. This testimony is also not corroborated by any of the respondent’s witnesses despite its shocking nature and therefore is unlikely to be true.
171. Most peculiar however it’s the fact that he had reported this to his father who told him he would visit the school but in fact did not. In contrast to this it must be noted that learner F’s father had visited the school regarding his allegation of being smacked by the applicant.
172. I am of the view that whether or not a parent attends at the school or not in these circumstances cannot be indicative of the alleged conduct having actually taken place.
173. An analysis of the circumstances testified to by two witnesses shows differing versions of the circumstances that had given rise to the alleged smack.
174. The particularly stark difference is that they differ in the number of smacks allegedly given by the applicant. The second stark difference is that of the circumstances which led to the alleged incident viz. laughing at a joke without remembering the joke and the person who made the joke, and secondly discussion in a group on the other hand.
175. These differences are sufficiently divergent to have me conclude that the probabilities of the applicant’s having smacked the learner to be remote.
176. Even the testimony of Ward confirms the kind of teacher that the applicant is and it comes nowhere near what the applicant is alleged to have done according to the charges which reflect the stories of the learners.
177. When considering the testimony of Ward in particular as to the attitudes of the learners particularly their penchant for defiance of the teachers and secondly their socio-economic circumstances, and thirdly the behavioural problems that they presented, I am satisfied to find on a conspectus of all the evidence presented at this arbitration that it is unlikely that the applicant had conducted herself generally in the manner alleged. Critical is Ward’s testimony that the learners are treated in the community in the manner the applicant is alleged to have treated them.
178. Regarding the testimony of bullying of the learners in the group by another learner testified to by learner B, it is precisely the prevalence of such circumstances that would lead the bullied learners to comply with the idea of telling lies as a means to an end. It is this kind of manipulation that leads to compliance by the victim of such treatment. Then there is the peer pressure that also led these learners to tow the line again as testified to by learner B.
179. I do believe that this conduct played an important part even in the initial allegation of learner E which on account of its being untrue led him later not to testify in respect of such allegation.
180. All of these factors lead to a conclusion of collusion amongst the learners involved against the applicant.
181. Saddest of all is the fact that this then appears to have been inadvertently and indirectly encouraged by Abrahams in establishing a system of reporting about the applicant to her for onward transmission to Ward.
182. I am furthermore of the view that the testimony of Ward pertaining to the dispositions of the children in the kind of environment in which they find themselves is of high significance and importance viz. that the children at the school defy the teachers and present behavioural problems as a consequence of their disadvantaged background.
183. In this regard Ward made particular reference to the name-calling and derogatory language the applicant had been accused of.
184. It is clear from this testimony that this conduct is alleged to be of the kind that prevails in the community. I am therefore not surprised by the derogatory utterances of the learners attributed to the applicant nor the name-calling. I am satisfied to hold that it is more likely that the learners had conjured up these names and derogatory language themselves.
185. This would in fact tie in with the testimony of learner B that they had been bullied by one other learner in particular into, as it were, towing the line of the lies about the applicant. This is one reason I find her testimony at this arbitration to be the correct version and not what she had testified at the disciplinary hearing.
186. Her testimony is also corroborated by that of the applicant’s witnesses in that there had been discussions in groups about the complaints about the applicant they had brought to Abrahams.
187. Her testimony under cross examination that she had said at the disciplinary hearing that she was so upset because her mom would not believe her, is correct as the evidence shows that her mother was unaware of what she had said and the fact that she was testifying at the disciplinary hearing.
188. She testified that she had lied at the disciplinary hearing when she said that she had been so upset because she was telling the truth and her mother would not believe her.
189. Testimony of this nature should alert one to questioning whether this witness was participating at the disciplinary hearing with parental consent.
190. She had recanted her testimony given at the disciplinary hearing in circumstances where her sister told her mother that everything was a lie upon which her mother asked her for her version.
191. This testimony corroborates that of Mrs. Smith and is accepted as true which leads me to conclude, more especially that the testimony at arbitration is true as opposed to that given at the disciplinary hearing.
192. It does however highlight the propensity for lying by this learner when in circumstances of peer pressure and bullying and encouragement by another authority figure even though inadvertently or indirectly.
193. As I have stated above I have dealt with the subject matter comprising the charges against the applicant without necessarily referring to charges individually.
194. I have considered all the evidence presented at this arbitration and conclude that the dismissal of the applicant was unfair only substantively as the parties had agreed at the outset of arbitration proceedings that the applicant had been afforded a fair procedure.
195. I have also considered carefully what remedy would be the appropriate one to impose in this matter especially in light of the fact that the applicant in her referral document has demanded reinstatement.
196. When considering the evidence and conclusions aforesaid and in particular the testimony of Mrs. Smith as to what value the applicant has been to her children as a teacher, I have every reason to believe that the applicant is capable of serving and will serve that school very well. Further in this regard the testimony of Ward too was that of the applicant being a compliant teacher.
197. Furthermore, most of the learners who had brought these allegations against the applicant have left the school. The principal, Ward, has also left the school.
198. I order the respondent the Department of Education – Western Cape to reinstate Ms. L. L. Snyders into the position which she held prior to her dismissal on 20 March 2020. This reinstatement is from 20 June 2021 and is without loss of remuneration or benefits backdated to the date of dismissal on 20 March 2020.
199. The respondent, the Department of Education – Western Cape is ordered to pay Ms. L. L. Snyders remuneration in the amount of R369 716.25 (three hundred and sixty nine thousand, seven hundred and sixteen rand and twenty five cents) (salary calculated from 20 March 2020 until 20 June 2021 – 15 months) by no later than 30 June 2021. Failure to pay this amount by 30 June 2021 will attract interest at the legal rate of interest.