Case Number: ELRC 1023-19/20 GP
Commissioner: M.A. HAWYES
Date of Award: 24t June 2021
In the ARBITRATION between
Carin Hester Pinkham
Gauteng Department of Education
Union/Applicant’s representative: Mr. S. I. Phephenyani (Attorney) from Sibuyi Attorneys
Telephone: 078 119 0860
Respondent’s representative: Mr. Zakhele Nawa
Telephone: 011- 736 0736
DETAILS OF HEARING AND REPRESENTATION
1. The case was scheduled for arbitration and sat on the 12th March 2021, 16th April 2021, 30th April 2021, 27th May 2021 and the 31st May 2021. The case was plagued with logistical issues. The first sitting took place at the Springs District Office and no proper facilities could be provided for the testifying of minor witnesses and the case had to be adjourned. The second sitting, which took place at the Respondent’s Head Office in Johannesburg, had to be adjourned for the same reason. The third hearing took place at the Springs Magistrates Court sitting in one of the Regional Courts and the hearing progressed well for one day. The final two days of arbitrating took place at the ELRC Head Office situated at 261 West Avenue, Centurion.
2. After completion of the arbitration the parties requested the opportunity to submit written closing arguments by the 8th June 2021. The closing arguments were timeously received and my award now follows.
3. Mr. S. I Phephenyani from Sibuyi Attorneys represented the Applicant.
4. Mr. Zakhele Nawa, a labour relations official, represented the Respondent.
ISSUE IN DISPUTE
5. Whether the dismissal of the Applicant on various counts of alleged misconduct was substantively and procedurally fair or not.
BACKGROUND TO THE ISSUE IN DISPUTE
6. The Respondent employed the Applicant as a post one level educator at the Laerskool Kommando during 2018. She had 14 years’ service with the Respondent.
7. At the time of his dismissal the Applicant earned R25065-00 (gross) per month.
8. The Applicant made use of a bundle of documents which was delivered electronically and the Respondent’s Bundle consisted of one page detailing the charges for which the Applicant was dismissed.
9. The make-up of the Respondent’s charges read as follows:
It is alleged that on or about the 16th April 2018, while on duty at Laerskool Kommando, you assaulted a Grade 4 learner, Nkosinathi Moloi, by hitting her (him) with a belt on her (his) legs.
In view of the above, you are charged in terms of the item 18 (1)® of the Employment of Educators Act,76 of 1998 as amended.
It is alleged that on 16 April 2018, while on duty at Laerskool Kommando, you conducted yourself in an improper, disgraceful and unacceptable manner in that you pulled a Grade 4 learner, Kingsley Okakwe.
In view of the above, you are charged in terms of item 18 (1) (q) of the Employment of Educators Act, 76 of 1998 as amended.
It is alleged that on or around 23 October 2018, while on duty at Laerskool Kommando, you assaulted the following Grade 4 learners in the manner(s) described below:
3.1 Threw Sipho Mate against the writing board and pinched him.
3.2 Threw a plank at Nqobile Mabuza, which hit him on the arm.
3.3 Hit Bonga Hannie with a plank.
3.4 Hit Kingsley Okonkwa with a stick on his face.
3.5 Strangled Tlalefo Tela lifted him by his neck and threw him to the floor.
SURVEY OF THE RESPONDENT’S EVIDENCE AND ARGUMENT
10. The Respondent firstly led the evidence of one adult educator at Kommando Primary School, a colleague of the Applicant, Ms Stephanie Elizabeth Engels.
11. The bulk of the remaining testimony was made up learners in the Applicant’s class who were repeating grade 4. The Applicant was teaching them English in 2018. The following learners testified at the arbitration remotely from the Applicant with the assistance of an intermediary and interpreter, namely Nqobile Mabuza, Nkosinathi Moloi, Sipho Mathe and Bonga Thokozizi Hannie.
12. Engels testified, inter alia, that the Applicant and she were grade 4 colleagues in 2018. She emphasized that she and the Applicant had always maintained cordial collegial relations with one another.
13. On a certain day in 2018, she cannot remember when, she observed one of the Applicant’s learners Sipho Mathe, running down the passage making a noise and observed the Applicant in hot pursuit with a stick in her hand. Engels testified that she felt the need to intervene since the situation appeared to be out of control. Sipho said that ma’am had hit him with the stick and the Applicant mentioned that she was using the stick to scare him to listen. Engels testified that she took the stick from the Applicant and reported the matter to the HOD Rita van Heerden.
14. Engels testified that other learners had come forward to complain but she had witnessed nothing personally related to the subsequent complaints.
15. Engels testified that children that age often heard things from other learners and adopted the complaints as their own.
16. Engels emphasized that corporal punishment was illegal and sticks could not be used.
17. During cross-examination Engels detailed the challenges that educators have with grade 4 learners because the classes are big and there was a lot of work to get through. The boys, in particular, often challenged authority and it was difficult to get them to sit down and work. Sipho was a big child for his age.
18. During cross-examination Engels also testified that it did not seem as if the Applicant intended to hit Sipho with the stick but wanted to enforce discipline. She never observed another incident involving the Applicant.
19. I was advised that the Respondent had wanted to call the Principal of the school (now retired) to testify. Numerous phone calls were made to him including by the District Director and all the calls had gone unanswered. No attempt was made to subpoena the witness.
20. Nqobile Mabuza was the first child witness to testify. As at the date of the arbitration he was 14 years old. He was in the Applicant’s grade 4 class in 2018 and ma’am taught them English. It later came to light that he was repeating Grade 4.
21. Mabuza testified how the Applicant had encouraged some of the learners to wrestle. There was a camera in the classroom which the Applicant covered with a blanket. She had also locked the classroom and chased them around. The Applicant had hit him on his hand with a plank and later hit a classmate Kingsley under the left eye. There was a scratch.
22. Nqobile later admitted that he not observed the Applicant hit Kingsley with the plank but Kingsley had told him what had happened. It was specifically put to Nqobile in cross-examination that the Applicant would deny hitting Kingsley and Nqobile testified that he would believe the Applicant because Kingsley was naughty.
23. The next witness was Nkosinathi Moloi who was 13yrs at the date he testified before this arbitration.
24. The witness detailed an incident involving the Applicant and Kingsley where she pushed Kingsley outside. Later the witness testified that the Applicant had banged his head against the desk and pushed him outside. At home his parents had wanted to know what had happened to his head and he mentioned the actions of the Applicant. His parents later reported the incident to the Principal at school.
25. Nkosinathi testified that there was a camera in the classroom in the corner at the back and the Applicant would cover the camera with a sheet and join the tables so that some of the learners could wrestle. Later the witness stated that the Applicant would cover the camera with a towel or t-shirt.
26. During cross examination the witness detailed an altercation involving Kingsley and himself and a fight had broken out. The Applicant had intervened to stop the fight. It was put to Nkosinathi that the Applicant had not banged his head against the desk but had to get involved to break up the fight. The injuries that he sustained were caused by Kingsley.
27. The third learner witness was Sipho Mathe who was 14 years old at the time he testified. The witness mentioned that during 2018 during class the Applicant would arrange the tables and allow some of the kids to wrestle. The Applicant would join in fighting and wrestling with the kids. He did not participate in the wrestling. At one point Sipho asked the Applicant to go outside and she said no. She then grabbed him by the neck, pushed him against the black board and throttled him by the neck. Sipho said she should stop, stop…no ma, am no. Kingsley and Nqobile tried to assist him and the Applicant turned around and scratched Kingsley in the eye.
28. Sipho testified further that he reported the Applicant’s conduct to his parents who in turn had laid a complaint with the Principal.
29. The witness testified that Nqobile was injured on the hand. He stated that he thought ma’am had hit Nqobile with a plank.
30. An attempt was made to hand in certain photographs detailing injuries. The admission was denied on two bases, firstly because the person who took the photos was not called as a witness and secondly, it was not clear which learners injuries were detailed in the photographs.
31. Sipho testified that the camera in the class was situated at the left back of the classroom. Some of the learners would take turns to cover the camera when they played. The Applicant would participate in the arm wrestling with some of the learners but she never covered the camera herself.
32. Later during cross examination Sipho denied that the camera was covered because he had heard the Principal say that the camera was not working.
33. Sipho testified that his mother was upset because the class was repeating grade 4 and the Applicant, instead of teaching was encouraging (arm) wrestling.
34. Sipho testified that the Applicant would ask the class to rearrange the desks and pick up papers in class. She would lock the door so the kids would not rush out the door at the end of the period before they had completed their chores. Nqobile would nonetheless climb through the window to get out.
35. The final learner witness was Bonga Thokozizi Hannie. He was 13yrs old at the time of testifying before this hearing.
36. Hannie testified that the Applicant hit him with a plank for talking in class and making noise although he wasn’t sure. She pushed him against the wall and throttled him by the neck. She never said anything. He described an incident where the Applicant hit other learners, chased Nqobile who immediately ran out of the classroom. The incident also involved Nkosinathi and Kingsley.
37. Bonga testified that the Applicant would lock the door so they could not get out.
SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENT
38. The Applicant testified under oath and called no witnesses. She confirmed that in 2018 she taught the grade 4 learners who testified before this hearing the English subject. The whole class consisted of learners who were repeating grade 4.
39. On a certain day in October 2018 the learners entered the class in a very unruly fashion. It was the last period of the day. One of the tables broke and the Applicant testified that she took a piece of the broken wood and dropped it on the table. The piece of wood jumped up and hit Nqobile on the arm by mistake. At that stage Sipho Mathe had jumped up and wanted to know why the Applicant had done that. He was very aggressive and threatening. The Applicant explained that she was from a conservative background and reprimanded Sipho for talking to her in that way. She then pushed him against the wall.
40. The Applicant testified that the aforementioned was the extent of her altercations with any of the learners. She denied all the other incidents alleged by the learners who testified at the arbitration hearing specifically the incident of hitting Bonga Hanni with a plank. Bonga was not telling the truth.
41. The Applicant emphasized that the boys were repeating the grade and were not keen to work at all. It was easy to get a teacher into trouble when the entire class fabricated something that had never happened. This was not the first time something like this had happened at the school.
42. The Applicant testified that earlier during the year Nkosinathi and Kingsley had gotten into a fight. Kingsley hit Nkosinathi in the face causing certain injuries. She had broken up the fight and taken both boys to the Principals office. The parents of both boys were phoned re the fighting. A short while later Nkosinathi’s mother phoned her and accused her of hitting Nkosinathi. The Applicant denied hitting Nkosinathi at all.
43. The Applicant testified that the class had three periods of English on Fridays and towards the end of the day, in the last 10 minutes, she would allow the children to play a bit. The Principal would not allow the educators to take the children outside so she allowed the learners to play to blow off steam. They did wrestle and at times the children would ask her to participate. She would arm wrestle with them from time to time. The Applicant denied body slamming anyone or grabbing anyone by the neck and throttling them.
44. In respect of the cameras the Applicant denied covering the cameras with blankets, sheets, towels or t-shirts or allowing the children to do likewise. The school occupied a 100 year old building and the ceilings were high. The camera was mounted high up on the ceiling and it was not possible to even reach the camera or throw something over it. Besides the camera was close circuit and if it was covered there would be an immediate alert to the principal since the screen would go dark. It is common cause that the camera was located in the Principal’s office. The Applicant testified that she was never charged with tampering with the camera.
45. Prior to her hearing the Applicant requested video footage for the period in question to refute the allegations of the learners but she was never supplied with any footage despite a written request to the Principal. The Applicant was also denied yearly SAQA documentation and her yearly assessments. The Applicant confirmed that her dismissal took place on the 20th February 2020.
46. The Applicant testified that at the disciplinary enquiry she was unrepresented for reasons mentioned in her testimony which will not be repeated here.
47. At the disciplinary enquiry the Respondent insisted that the learners testify in the same room behind screens. She could not see the learners or their faces when they testified or who was behind the screens with the learners. She was also limited by the disciplinary chairperson in questioning the learners which severely hampered her ability to put her proper version to the minor witnesses.
48. The Applicant deposed that she no longer wished to be employed in the Department of Education and asked to be awarded financial compensation.
ANALYSIS OF EVIDENCE AND ARGUMENT
49. The onus rests on the Respondent to prove the various allegations of misconduct against the Applicant on a balance of probabilities.
50. The Respondent led the evidence of four minor witnesses in support of these allegations. It is trite that the evidence of minor children must be approached with caution.
51. If one considers the charges against the Applicant, without context, they certainly appear serious deserving of the sanction of dismissal.
52. However, the context paints a different picture. The minor witnesses contradicted each other fundamentally on various important aspects of the testimony. They contradicted each other on whether the Applicant or learners covered the camera and there were inconsistencies’ in what was used to cover the camera. The testimony of the Applicant that the camera was located too high in the ceiling to reach remains unrefuted. It is improbable that any attempt to cover the camera would have been quickly discovered by the Principal who controlled school affairs tightly and the camera screen was located in his office.
53. The minor witnesses did not corroborate each other in all material respects and it became apparent that certain testimony was not seen but rather heard from other witnesses.
54. The evidence of educator Engels confirmed the Applicant’s testimony that the grade 4 learners were all repeating grade 4. It is probable that these learners had various learning problems and learning problems often manifest in various forms of disruptive behavior both with the educator and themselves. I find that the Applicant was seriously challenged in dealing with an unruly and disruptive class and may have been forced to resort to strong armed measures to break up fights and control the class.
55. I also find that children in grade 4 learners are capable of fabricating events that may never have happened, may adopt someone else’s narrative of events and out of pure spite misrepresent a state of affairs to blacken the reputation of an educator simply because they do not like being disciplined. I find that the Applicant was a victim of such conduct.
56. One of the main learners guilty of disruptive behavior and fighting was Kingsley Okonkwa who never testified at the arbitration and other witnesses cited in the charges were likewise not called as complainant witnesses. I am not prepared to accept the evidence of learners who gave hearsay and/or inconsistent versions on what the Applicant may or may not have done to Kingsley. I find that it is probable that all interventions by the Applicant with the learners who testified was to maintain control in the classroom or engage in playful physical exchange with young learners to manage their attention span at the end of a long day. I find that all of the learners exaggerated and misrepresented the conduct of the Applicant when she tried to control their unreasonable behavior.
57. I find that the Applicant was a good witness whose evidence was not substantially challenged. The incident involving Nqobile, on the Applicant’s version was an accident and the Applicant’s version of these events cannot be rejected out of hand. The incident witnessed by Engels is not indicative of any assault but once again an act of trying to control an unruly class.
58. The Applicant admitted to arm wrestling with the learners at times and pushing Sipho Mathe against the wall when he aggressively threatened her. In this regard the Applicant was probably acting in self defence and is not guilty of assault common on her own version. Engaging in arm wrestling and other playful exchanges with children likewise does not constitute common assault.
59. I find that the Respondent’s version of events does not weigh heavier than that of the Applicant. On that basis alone I find that the Respondent has not discharged the burden of proving that the Applicant committed overt acts of unjustified assault on the various learners.
60. The Applicant had 14 years’ experience as an educator and an unblemished disciplinary record at the time of her dismissal.
61. I find that the dismissal of the Applicant was substantively unfair.
62. On the 12th March 2021 the Respondent sought to lead the evidence of the minor witnesses at the Springs District office behind the same screens that had been utilized at the Applicant’s disciplinary enquiry. I refused this and insisted that the evidence of minor witnesses be lead in accordance with the various provisions of the ELRC on how these witnesses should testify. The Respondent did not refute the Applicant’s testimony in this regard
63. I find that the manner in which the minor witnesses testified at the disciplinary hearing unfairly prejudiced the Applicant in presenting her version. This is a serious procedural shortcoming together with the failure to provide her with video footage and documentation that could have provided exculpatory evidence and proof of her excellent abilities as an educator. The Applicant’s dismissal was also procedurally unfair.
64. The Applicant did not seek reinstatement and instead sought a decision clearing her name and a compensation order for the unfairness committed against her.
65. The Respondent is ordered to compensate the Applicant in the amount of R150390-00. This is the equivalent of six months gross salary. The said amount (less allowable statutory deductions) must be paid to the Applicant upon or before the 15th July 2021.
64. No order as to costs is made.