Award  Date:

28 June 2021

Panelist : A C E Reynolds

Case Number : PSES 423-19/20WC

Date of Award : 28 June 2021


In the ARBITRATION between:


A L Damons
(Union/Applicant)

and

Department of Education – Western Cape
(Respondent)


Union/Applicant’s representative : Adv S Lourens

Union/Applicant’s address : 84 Middelweg
Blomnek
DE RUST
6651

Union/Applicant’s Telephone No’s : 0640978354 / (044) 2792162

Union/Applicant’s E-mails : adv.lourens@gmail.com
lioneldamons@gmail.com

Respondent’s representative : Ms V Mortlock

Respondent’s address : Private Bag X9114
CAPE TOWN
8000

Respondent’s Telephone No’s : (021) 4672033 / (021) 4672858

Respondent’s E-mails : Venessa.Mortlock@westerncape.gov.za
Lauren.Randall@westerncape.gov.za


DETAILS OF HEARING AND REPRESENTATION

1. The matter was referred for arbitration to the Education Labour Relations Council (ELRC) for a dispute relating to an alleged unfair dismissal for misconduct (alleged assault of a learner) referred in terms of section 191(5)(a)(i) of the Labour Relations Act 66 of 1995 as amended (the LRA) and was completed over nine sittings on 27 January 2021, 28 January 2021, 29 March 2021, 30 March 2021, 31 March 2021, 1 April 2021, 27 May 2021, 28 May 2021 and 4 June 2021 at the premises of the De Rust Primary School in Blomnek, De Rust in person and also virtually via Zoom video conferencing on the premises.

2. The applicant, Mr A L Damons, was represented by Adv S Lourens, a legal practitioner and the the respondent, Department of Education – Western Cape (WCED), was represented by Ms V Mortlock, a Labour Relations Officer. Mr Damons requested legal representation, which was not objected to by the respondent and was accordingly granted. Ms L Randall, Assistant Director : Labour Relations, was also present for the respondent in all the sittings. During the proceedings and after the conclusion of the respondent’s evidence, Ms Randall requested that she take over the respondent’s representation from Ms Mortlock. The applicant party objected to this and it was agreed that Ms Mortlock should continue as the respondent’s representative and could consult with Ms Randall for her cross-examination of the applicant party’s witnesses as required.

3. Mr D Kova was present from 28 January 2021 onwards to assist with interpretation in and from Afrikaans and act as an intermediary at all sittings when learner witnesses testified. Ms D Xego was present on 27 January 2021 to assist with interpretation and as intermediary but stated that she was not conversant in Afrikaans as required for the proceedings, whereafter she was replaced by Mr Kova.

4. The proceedings were conducted in Afrikaans and English with digital and electronic recordings made. It was agreed that Ms Mortlock could also make a recording of the proceedings, on the understanding that the official digital record will be that of the panelist. Adv Lourens for the applicant elected to not also make their own recording of the proceedings.

5. The parties did not require an explanation of the arbitration proceedings.

6. Reference was made to the Pre-Arbitration Minutes dated 26 September 2019, which were confirmed by the parties after certain amendments were made, with the relevant extracts included in the award.

7. No preliminary issues required to be addressed, other than the applicant’s application for legal representation, which was not objected to and granted.

8. Written closing arguments were requested and agreed to at the last sitting of the arbitration. These were agreed as follows with the parties to submit theirs simultaneously to the ELRC’s Case Management Officer, the panelist and one another via e-mail, with e-mail addresses exchanged:

The respondent not later than 9 June 2021
The applicant not later than 14 June 2021
The respondent to reply not later than 15 June 2021

The parties were informed that the award due date would be amended accordingly.

The respondent’s and the applicant’s closing arguments were received on the due dates. The respondent did not submit a reply.

ISSUE TO BE DECIDED

9. The purpose of this arbitration is to determine whether the dismissal of the applicant, Mr A L Damons, by the respondent, the Department of Education – Western Cape, for alleged misconduct was fair on both procedural and substantive grounds, as well as the appropriate relief if unfairness is found. It was confirmed that the onus of proof would be on the respondent in this matter. The relief sought was reinstatement with retrospective compensation in a Post Level 2 Head of Department position at the same school, or any other school in the area.

BACKGROUND TO THE DISPUTE

The following facts were established as common cause

10. The applicant, Mr A L Damons, was employed by the respondent as a Post Level 2 Head of Department responsible for grades 6 and 7 at De Rust Primary School in Blomnek, De Rust. He commenced service with the respondent in 2009 and was employed at De Rust Primary School for the past 11 years. In this position he reported to the Principal, Mr K Jones. The applicant’s Persal number was 50672428. His gross earnings were confirmed as being R31277.22 per month.

He received a notification of a disciplinary hearing on 4 March 2019 to attend a disciplinary hearing in order to respond to three charges of alleged misconduct. The disciplinary hearing took place on 3 and 4 April 2019. The applicant was represented in his disciplinary hearing by Mr M Brinkhuis of SADTU. The hearing was chaired by Mr A Gunther, an external Presiding Officer. Ms V Mortlock represented the respondent in the disciplinary hearing. The applicant pleaded not guilty to all three charges and was found guilty of the first charge (translated from Afrikaans), which was as follows:

It is alleged that you are guilty of misconduct in terms of section 18(1)(r) of the Employment of Educators Act No 76 of 1998 (hereinafter referred to as the Act) in that you on or about 28 November 2018 assaulted Learner A, a Grade 7 learner connected to De Rust Primary School, by hitting him with a pipe.

The wording of this charge in the notification of the disciplinary hearing stated that it is alleged that the applicant hit the learner with a pipe on his hands. The charge was later amended at the disciplinary hearing to the above wording to exclude the reference to hands.

The applicant received the outcome of the hearing on 10 May 2019 and appealed against the outcome on 28 May 2019. The MEC upheld the dismissal on 22 July 2019, of which the applicant was informed on 23 July 2019. The applicant worked up till 23 July 2019 and was paid on15 July 2019 for the full month of July 2019. The Applicant had received a fine of R3000.00 in terms of a plea bargain agreement dated 13 November 2018 after being charged for a similar offence.

The following facts were in dispute:

11. The procedure was in dispute for the following reasons:

Whether the Presiding Officer read out the charges and pointed out the amendment to the first charge to the applicant and his representative at the commencement of the hearing.
Whether the amendment of the first charge was only brought to the attention of the applicant during his cross-examination in the disciplinary hearing after he had presented his evidence in chief.
Whether the charges were not formally put to the applicant at the commencement of the disciplinary hearing.
Whether the applicant held a plastic water pipe in his hand when he approached Learner A at the time of the alleged incident.
Whether Ms M Lindeque the Social Worker should have served as intermediary during the applicant’s disciplinary hearing due to her having pre-knowledge of the issues in dispute and could therefore have influenced the outcome of the disciplinary hearing, or was only present for emotional support of the three learner witnesses who testified at the disciplinary hearing,
Whether Ms V Mortlock the respondent’s Initiator in the disciplinary hearing informed the Presiding Officer that Ms Lindeque the Social Worker had lodged the complaint against the applicant.

12. The reasons for the dismissal were in dispute for the following reasons:

Whether the applicant was guilty or not of the alleged transgression since he denied committing the conduct that he was charged for.
Whether in the circumstances the dismissal was substantively unfair.

SURVEY OF EVIDENCE AND ARGUMENT

13. Learner A (the alleged victim) and Learner B, both boys, testified in absentia and virtually for the respondent on the school premises. The respondent also wished to call another girl learner, Learner D, who was present during the alleged incident to testify, but they were informed she was ill and could not attend the proceedings. Ms V Mortlock, the respondent’s representative in the disciplinary hearing, Mr A Gunther, the disciplinary hearing Presiding Officer, Mr K Jones, the Principal of De Rust Primary School, Ms X the mother of Learner A and Ms M Lindeque, a Social Worker with the respondent, also testified under oath for the respondent.

14. The applicant, Mr A L Damons testified under oath. Learner C, a boy, also testified virtually and in absentia for the applicant. The applicant party also wished to call another learner witness, Learner E, to testify, who they were informed could not attend the proceedings due to a family trauma. Mr M Brinkhuis, the applicant’s SADTU representative in the disciplinary hearing, was also scheduled to testify for the applicant at the last sitting on 4 June 2021 but was unable to do so, whereafter the applicant party decided to close their case rather than request further postponement of the arbitration.

15. Parental/guardian consent forms were arranged and provided for all the child witnesses who were to testify.

16. In camera facilities were not available at the school venue where the arbitration took place for the learner witnesses to present their evidence. It was agreed with the parties that the learner witnesses would present their evidence in absentia through Mr Kova, the Intermediary/Interpreter, in the following manner, without the other parties being present: The child witnesses would be present with Mr Kova in a separate office on the school premises. Mr Kova would write down a representative’s questions for the child witness, take these to the child witness in the separate room, record their responses and then report these responses back to the representatives and the panelist, on record. Any questions in cross-examination and re-examination of the witness would then similarly be recorded in writing by Mr Kova and put to the absent witness, who would convey the responses on record. This was the procedure followed for the evidence in chief of Learner A, whereafter it was agreed that his cross-examination and the evidence of the other child witnesses would be conducted virtually via Zoom video conferencing on the school premises through Mr Kova in the separate office, whereby the parties, Mr Kova and the child witnesses could see one another but the child witness could not hear the questions being posed, which would be directed via Mr Kova as intermediary and the responses conveyed virtually by him.

17. Documents were handed in by both parties and admitted as evidence, except where indicated otherwise. It was noted that the handwritten statements made by Learner A and his mother Ms X at the SA Police Service in De Rust on 6 December 2018 were not clear and that witnesses would testify to their contents.

18. An in loco inspection of the school classroom number 33 at De Rust Primary School where the alleged incident took place was requested and arranged at the sitting on 28 January 2021 after Learner A had concluded his evidence in chief. Mr Kova assisted in preparing the classroom layout sketches with desks and chairs and where persons were positioned to illustrate the parties’ respective versions. Learner A and the applicant participated separately in the in loco inspection. Notes were made relating to the in loco inspection, which were recorded on the two layout sketches for each party prepared by Mr Kova and of which copies were provided to the parties. The inspection was also recorded digitally.

19. Only the evidence relevant to the facts in dispute are summarised below and that which was established as common cause is not repeated, unless relevant. Detail is provided, were relevant. Witnesses’ evidence in chief, under cross-examination and re-examination are summarised separately to assist with the evaluation of their evidence.

THE RESPONDENT’S EVIDENCE

20. The respondent’s case was that they received allegations against the applicant and investigated the allegations. They would call four witnesses and the Social Worker who was present to assist the learners at the time. The Social Worker was not the person who informed the respondent about the allegations and was neither the complainant nor the initiator in the applicant’s disciplinary proceedings.

21. Ms V Mortlock, the respondent’s representative in these proceedings, testified as follows under oath in her evidence in chief: She was a Labour Relations Officer with the respondent and represented the respondent in the applicant’s disciplinary hearing. Ms Lindeque the Social Worker did not lodge the complaint with the respondent, which she did not say during the hearing. The complaint was reported by the School Principal, which he would also testify to.

22. Ms Mortlock testified as follows under cross-examination: She had been a Labour Relations Officer with the respondent in the Directorate of Employee Relations for 6 years. Her duties included dealing with different cases such as grievances, misconduct investigations and disciplinary hearings. The complaint from the Principal Mr Jones was sent to her Deputy Director Ms M Knoetze, whereafter certain processes were instituted and it was referred to the Assistant Director Ms L Randall. Ms Randall was responsible for a few Labour Relations Officers, including herself, and decided to allocate the matter to her. They worked according to disctrict offices and they were part of Eden Karoo District, under which Oudtshoorn fell. She explained the procedure after the file was allocated to her, which included contacting the Principal and getting the consent from the parents to speak to the affected learners, which is arranged by the Principal. She explained the process when learners are consulted at the school, which is normally done individually. 15 learners were identified from the class register who sat close to where the alleged incident had happened. Out of the 15 learners, four learners were chosen from the names given and two of these learners were selected to testify since most of these learners were no longer at high school. The four were chosen after interviews were conducted and it was established whether they were in the class and what they saw and not heard and because they could corroborate the version of the victim. Other learners who did not support the version of the victim were not used because they were not in the class. They did not interview anyone who was not in the class and most of the learners did not see anything. She responded to the version that two learners would testify on behalf of the applicant and that they told her that they saw what happened and that she chose not to use them, that she never spoke to those learners whose consent forms were handed in since she knew the names and they were not among the learners she interviewed at De Rust High School. She prepared the charge sheet for the applicant in conjunction with her Supervisor Ms Randall after she had spoken to the learners. After the charge sheet was approved it was sent to the Principal who handed out the notice of the disciplinary hearing and the charge sheet to the applicant. The charge sheet was changed, but she could not remember the specific date when it was changed. The charge sheet was changed because some of the witnesses could only say that the victim was hit with a pipe (and not on the hands as well), of which Learner B was one. The revised charge sheet was not sent via the Principal to the applicant but via e-mail to both the e-mail addresses of Mr Brinkhuis who was the applicant’s representative at the time. Mr Brinkhuis did not confirm that he received it and informed the day of the hearing that he had problems with e-mails. She did not confirm with Mr Brinkhuis that he received the revised charge sheet and she did not have a read receipt on her e-mail system. She did not have Mr Brinkhuis’s telephone number since it was the first time that they worked together. The original charge sheet was not sent to Mr Brinkhuis but to Mr J Rustin the SADTU Provincial Secretary since the applicant was one of their members, as they would normally do after it was was sent to the Principal. They at that stage did not know who would be representing the applicant in the hearing. Mr Brinkhuis contacted her after they had sent the notice to Mr Rustin to inform that he would be representing the applicant. She did not phone Mr Rustin or Mr Brinkhuis to confirm that Mr Brinkhuis received the amended charge sheet, but assumed that he had received it and agreed that she had not followed up whether the e-mail with the amended charge sheet was received. They spoke about this in the disciplinary hearing and it was only at the cross-examination of the applicant that they (the applicant and his representative) picked up that the charge sheet was different. She cannot remember if she asked Mr Brinkhuis whether he had received the amended charge sheet before she read out the formal charges at the hearing, but she did read out the charges with the revised charge 1. She cannot recall if they had raised an objection when she read out the charges, but knows that they only raised it during cross-examination. She responded to the version that the applicant party handed in their bundle of documents at the hearing and it should have been picked up that it did not contain the amended charge sheet, that the Presiding Officer went throught the bundles with them, but that he only browsed through the bundles. She did not ensure that the Presiding Officer specifically referred to the revised charge 1 on the charge sheet. It was noted that the record or minutes of the disciplinary hearing was not in the bundles of documents handed in at the arbitration. The applicant party should have been aware of the change to charge 1 when she was asked to read the charges out by the Presiding Officer. They were therefore aware of the change and should have raised it then. The applicant was not ambushed by her not making them aware at the beginning of the hearing of the change in the charge, which was not purposefully done. Ms Lindeque’s role in the disciplinary hearing was to support the learner witnesses, which entailed sitting with the learners during the hearing. She did not know if the learners had prior sessions with Ms Lindeque during which they told her what happened since she only met Ms Lindeque for the first time at the disciplinary hearing. They called in Social Workers for serious cases when learners are emotional to support them. Ms Lindeque would come and testify herself what her role is at the schools.

23. Ms Mortlock testified as follows in re-examination: She did read out the charges on the day of the disciplinary hearing as requested by Mr Gunther and confirmed that Mr Jones the Principal sent the complaint to their offices.

24. Learner A testified as follows in absentia in his evidence in chief: Mr Kova was provided with certain questions posed by the respondent’s representative, which Mr Kova reported on as follows: He gave his full names which are not recorded here due to anonymity of child witnesses, that he was then15 years old, in grade 7 and that his class teacher was Mr Damons (the applicant) at the time of the incident. He could not remember which subjects he was taught by the applicant and that the incident happened in the afternoon in the last period of that day. He explained what happened during the last period. They were writing a test and it was break time. The bell rang for them to return to class and Mr Jones the Principal said he must go past his office after break because he wanted to know what happened the previous Friday with the fighting. He went to Mr Jones’s office after the break and Mr Jones told him to sit down and offered him some biscuits that he was having. He was alone in the office with Mr Jones. Mr Jones asked him in whose class he was supposed to be and he told Mr Jones in the applicant’s class. Mr Jones told him he could eat the biscuits then or on his way to class. On his way downstairs to the classroom and before he turned to go up the stairs to the applicant’s class there were five more learners outside, which made it six with him included. When he opened the door to the classroom the applicant asked him where he was coming from only then. He told the applicant that he was coming from the Principal’s office because Mr Jones had told him to go to him after the break. Another learner, Learner D, said that he was not from the office but that he was walking around outside with the other five learners. He then told the applicant that he was from the office and where else would he be coming from. The applicant said he must not talk back and that he “hou jou nog groot ook nog” meaning that he was cheeky, when the applicant hit him on his hand. Learner D then again said that he was not coming from the office and he responded that he was coming from the office. The applicant then pushed him against the table corner and he went to the desk. He then felt something coming up in his stomach and asked the applicant to leave the classroom. The applicant said he could not leave since he had just come into the classroom, whereafter he put his pen down and left the classroom. The incident happened after the second break. The applicant hit him once with the red pipe on the back of his left hand. Learner D saw the applicant hit him. The applicant used the pipe to hit the children in the class and he himself was hit previously with the pipe. The applicant was standing behind him when he pushed him with both hands against his lower back forwards into the desk. The other five learners who were outside with him were also in his class. He left the classroom without permission because he felt a pain in his stomach and felt as if he was going to vomit and did not want to vomit in the classroom. When he left the classroom he went past Mr Kock’s dustbin outside the classroom and vomited into it and went from there to the toilet. He rinsed his mouth at the toilet and felt his testicles feeling weird when he then saw it was swelling and becoming hard and red. He unbuckled his belt and unbuttoned the top button of his pants but left the zip up. He took his jacket and put it front to back over his pants, whereafter he went outside and sat against the walls. Mark the Security came along and asked why he was sitting there and he told Mark that the applicant had injured his testicles, when Mark took him back to the Principal’s office and told Mr Jones about his testicles. Mr Jones asked how he got injured and he told him that the applicant pushed him against the table. He begged the Principal to please get somebody because he was not feeling well. Mr Jones said he could not take him to the clinic since his mother was not with him. Mark took the keys for the sick bay and Mr Jones told him he must go and lie there. He stood up and left the sick bay after some time because the pain was getting too much and went to sit on the stairs when some girls questioned him on what he was doing sitting there. After the bell rang for school to go out he went and sat at the bus stop waiting for the bus. The applicant came past and went back to his classroom. At that time the pain was getting worse and he was crying. His cousin came and asked him why he was so sad and he told him its because the applicant had hurt his testicles. His cousin told him to call him when the bus arrived so that he could help him on the bus, which he did. His cousin also helped him to get off the bus. He walked home slowly and did not open the door in the normal way when his mother asked him why he was opening the door that way. He then told his mother that the applicant had hurt his testicles. His mother then called the ambulance and they went to hospital that same day. At the hospital they said that the injured testicle was not that badly swollen but if he must return if it gets worse, whereafter they went home. He could not remember which day it was that he told his mother that it was starting to get worse. His mother then took him to a private doctor, Dr le Roux who informed that the testicle was already dead and needed to be removed and he was sent back to hospital, where he was operated and they removed the testicle. He also explained what happened about the fight the previous Friday that Mr Jones wanted to talk to him about. He accompanied another learner to the toilet, which another educator Mr September asked him to do, because the person who normally did so was absent. On their way back this learner ran into him and and fell on the dustbin. This learner then went to tell his brothers in the afternoon that he, Learner A, had hit him, whereafter the brothers came to hit him.

25. Learner A testified as follows virtually under cross-examination after Mr Kova explained the virtual process to him. He could not remember which subject the applicant taught him because it was such a long time ago, and then agreed that the applicant taught them English. There were no problems between him and the applicant before the day of the incident. He could not remember what his classmates were busy with when he came into the classroom on that day. He entered the classroom after the second break. He could not remember that he had previously testified that it was in the afternoon after the second break, but it was during the break time when all the children went into the class and he went to the Principal. He explained again how it happened that he got to the Principal’s office, which is not repeated here, save to add that Mr Jones asked him to come past his office after the second break when the children went into the classroom. Mr Jones was standing at the steps when he told him that. He went to the office immediately. The fighting that Mr Jones wanted to talk about was when they assaulted him, Leaner A, on the school premises. He clarified what happened surrounding the fighting incident and what he told the Principal, which was that he and the other learner were coming down from the toilets and another learner ran into him and fell into the dustbin. That learner in the afternoon told his brothers that he, Learner A, had assaulted him and had thrown him from the two rails. The brothers came to the school and he started running away, but his friend told him to not run away and he sat at the slide on the school grounds near the netball field when they assaulted him. The school was already out when they sat at the slide. He could only remember the names of two of the five friends who were outside when he left the Principal’s office on the day of the incident since it was such a while back. These five friends were first at the toilets and when they saw him coming from the office they walked with him since they wanted him to walk into the classroom first so that they could come in and tell the applicant that they were with him. All six of them went into the classroom at the same time and the applicant asked them one by one where they were coming from, starting with himself. He repeated that he explained to the applicant that he had come from the Principal’s office and that Learner D disputed this. Learner D kept on saying that they were not coming from the Principal’s office, when the applicant told him he must keep quiet and then hit him with the pipe over his hand. The applicant then told him to go and sit down and he told the applicant what he was doing is not right, when the applicant then pushed him against the table. Before the applicant pushed him he asked for a pen to do his task and went to the desk where he was supposed to do the task and then felt the pain coming as if he wanted to throw up. Learner B told him he had to go out of the classroom since he could not do that inside the class. He repeated that he asked the applicant if he may leave the classroom when the applicant told him he could not leave and he took his pen with the task and put it on the desk and left the classroom without permission. The applicant hit him in the front of the class at the board. He was also pushed in front of the class. The other learners must have seen it as it happened in front of the class. He could not say if the altercation or argument between him and Learner D attracted the attention of the other learners since they were busy with a task which was important for the exam. Learner D started the argument surrounding whether he was coming from the Principal’s office and it seemed that Learner D wanted him to be hit by the applicant. Learner D had told him twice that he was not talking the truth, the first time when he came into the classroom and a second time after that. The other five learners who stood behind him were his friends and the applicant allowed them to sit down while he made him, Learner A, stand in from of the class and asked him questions, which he answered. The applicant was a good teacher but always had a problem with the six of them, with examples provided. Although he had stated in his evidence in chief that there were no problems between him and the appllicant, this had only come to mind now. The applicant had only asked the others one question about where they came from, but asked him the most questions, whilst the others were the ones who would bunk class and sit in the toilets, which he normally did not do. The applicant had picked on him and assaulted him because he stayed outside on the farm and not in De Rust. What he had said was true and although he was assaulted by the other learners the only time he had the problem with the testicle is because of what happened in the classroom. The applicant hit him on the hand because of the argument with Learner D and did not hit Learner D as well because she was a girl and a man could not hit a girl. He repeated what happened afterwards when his cousin became involved while he was crying and waiting for the bus and what happened when he got home and afterwards at Oudtshoorn hospital and his visit to Dr Le Roux. His mother opened a case with the SA Police Service about the incident at the school but he could not remember why she did so. He could not remember either what happened with the case but they did not go to court and dealt with the matter at the police station. He confused the court with the police station. The policeman asked him to say what happened that day, and he did what the policeman asked of him, which was the same as what he had already stated and is not repeated here. The policeman told him there was a need for a name and surname on the statement, which he provided. The statement of 6 December 2018 under the heading De Rust MAS 15/12/2018 which was handwritten and unclear, was read out for the record by Mr Kova and interpreted from the Afrikaans, noting that it was attested to by Learner A at 14h15 on 6 December 2018. Learner A confirmed it was the statement that he made for the policeman in the presence of his mother and that he was satisfied with it. Although he had confirmed that he had told the policeman everything that happened that day the statement did not contain a reference to the pipe that the applicant hit him with. The applicant hit him with a black pipe that was in the classroom. They had got rid of the red pipe that was in the classroom since it hit harder than the black pipe. The reason why he did not say anything about the pipe to the policeman was because he was not feeling well and was heartsore and thought that the policeman would also arrest him, which is why he did not say everything. He agreed that his mother opened a case on his behalf against the applicant for assault because he was a minor. When he told his story to the police and they took his statement he knew that the applicant was in the wrong and not himself and that he did not do anything against the law. He did not say anything about the pipe because the applicant had never hit him, and if his two witnesses were here they would also say that the applicant did hit him with the black pipe over his hand. He agreed that other girls and boys were hit by the black pipe but was not sure if the black or red pipe was being referred to. He had seen the applicant hit the girls with the red pipe but he could not remember the names of the girls and knew that Learner B would be testifying that the applicant hit him with the red pipe. When they came into the class on the day of the incident after he knocked on the door the applicant was busy with an exam task that the children were doing. He could not remember how far the applicant was from him when he hit him, but he did stand a distance from him, which was not far. He was not sure if it was the black or red pipe but it was a long pipe. He could not remember on which hand the applicant hit him although he had previously testified that it was his left hand. When playing a person could forget what was correct. He was standing next to the three point plug having the argument with Learner D when the applicant leant forward and hit him on the hand with the pipe, as demonstrated by him virtually. He was hit hard only on his hand, with the mark visible on his hand where he was hit till that afternoon and which he only showed to his cousin. He could not remember which part of his body hit against the corner of the table/desk when the applicant pushed him, but explained that he was very forgetful, especially when frightened. After being reminded he recalled that it was the left testicle that was removed and had hit aginst the corner of the table. He responded to the suggestion that as man to man when something hits against your testicles you will immediately be in severe pain and collapse that he felt something was not normal and went to sit down and felt the difference in the pain. He explained where Learner B was seated in the third row from the back which was two seats in front of him when he told him that he, Learner A, wanted to throw up. They were all busy with the exam test at the time and he threw a piece of paper at Learner B to tell him this, when he said to him he had to go out and could not throw up in the classroom. Learner B was one of the six learners, including himself, who came into the classroom with him but Learner B normally wrote very fast and was nearly finished with the task because it was not a difficult task. He could not remember that it was a fully fledged English exam paper and not a task. He added after his statement that he had thrown Learner B a paper telling him about his pain that they also spoke and that Learner B stood up in the passage and he told him what happened. The applicant was sitting at his desk and did not see Learner B. Learner B did not communicate with him by also writing on a paper but stood up and crawled to him so that the applicant could not see him. After they had spoken Learner B crawled back again to the desk where he was seated. He responded to the version that the applicant would testify that on the day of the alleged incident he was busy in the front of the class to explain something in the English exam paper which was not in the paper, that the applicant had already explained the things in front when he spoke to Learner B. He could not remember that the applicant was busy explaining something in the class when he came in. He responded to the applicant’s version that only three learners came about 10 minutes into the class after he was already in the class, with their names mentioned, that he could only remember two of the five other names of the learners who were with him. He responded to the version that the applicant was going to deny that he ever hit him with the pipe over his hand and also did not push him, that even when he was injured when he fell while on holiday or was assaulted at school that he did not feel any pain and would have been in hospital, that he only felt the pain when the applicant pushed him. He responded to the version that in the discussion between other educators that the applicant heard that he, Learner A, was already walking strange the Monday before the Wednesday when the alleged incident occurred, that the educators were not talking the truth since if that was the case he would not have been able to play soccer like they did on the Monday. He could not remember what happened about the case of those who had assaulted him but that it was sorted out at the police station.

26. Learner A testified as follows under re-examination: The incident happened close to the time for going home in the last period when the children were moving into the classes. He could not remember what time of the afternoon they went home. From the top of the statement for the police he confirmed that it was recorded as De Rust MAS 15/12/2018 which meant that the statement was made on 15 December 2018 and not 6 December 2018 as recorded there. In the last paragraph of the statement he had stated that he was operated on 6 December 2018. It could be he was still in pain at the time and could not remember everything when he made the statement and did not tell the policeman everything. He demonstrated the length of the pipe virtually, which was from maybe his shoulder all the way to the end of his fingers, which was a long red skew pipe. When the applicant hit him hard on the hand it was painful at the time but he did not want to show everybody that he was hurt or feeling pain, since he thought they would laugh at him as only girls cried when they were hit. What he remembered about the incident which was important to him was that he did not expect the applicant to hurt a learner that much. He felt the pain the first time when the applicant pushed him into the desk but also did not want to show the other learners that he was in pain, which is why he held it in a bit and went to sit down and told Learner B everything he had told before.

27. Learner B testified as follows virtually in his evidence in chief: He knew about the incident which happened at the Primary School when he was in grade 7 and was 15 years old. He remembered two of the names of learners who were involved in the incident. On that day at the Primary School the applicant hit Learner A with the red pipe. Learner A then ran away and hit his testicles against the desk. He saw the applicant hit Learner A with the red pipe on his arms because he was making a noise in the classroom with his friends in the class. He could not remember the real names of these friends. The applicant was teaching them Afrikaans at the time. He could not remember what Learner A did afterwards but he thought he walked out. The applicant had hit other children in the class before with the pipe. It was the whole class, himself included, but he could not remember their names or when it was since it was about three years back and they were all hit on the arms with a red pipe. There were two pipes in the class, a red and a black one, but the applicant was only using the red one. Learner A was sitting in the back of the class that day, the second desk from the back, whereas he, Learner B, was sitting in the first row. They were sitting a distance from one another. He could not remember what they were busy with in the class and the time of the day that the incident happened. He was in the class the whole day, including Learner A. He spoke to Learner A afterwards when he was outside at the tree. Learner A was crying and only said that his testicle was in pain. All the learners who were going home with the bus were there at the time when the school bell rang that school was out. He then went home and Learner A went on the bus. After Learner A knocked himself against the desk he left and went out of the class. Learner A did not ask the teacher to leave the classroom and walked out as he usually did. He saw the applicant hit Learner A three times with the pipe on the arms and Learner A did not cry at the time. The applicant was was coming from the office when he hit Learner A . The applicant was standing in the front of the class and they were in the back of the class making noise when the applicant came and got the pipe and hit them.

28. Learner B testified as follows under cross-examination: He and Learner A were friends at school, were together every day and got on well. The two other learners of whom he gave the names and the four of them, which included himself and Learner A, were playing in the class on the day of the incident. He then changed it to five of them who were playing all over in the class, which included another learner. The rest of the learners were in the class and sitting in their desks either chatting or being quiet and paying attention. The applicant was in the office when they were playing like that. When the applicant came into the classroom and saw what they were doing he took the pipe and hit all of them, of whom he could only remember some of the names. Learner A was one of them who got a hiding with the pipe because he was also making a noise in the class. Learner A was hit three times by the applicant on his arms at the back of the class. After he was hit three times Learner A tried to run away which is when he hit is testicles against the desk. Learner A did not show in the class that his testicles got hurt. It quietened down in the class after the applicant had hit them. There were no desks between him and Learner A, just a space. He and Learner A did talk after the incident that day, not inside the class but outside at the tree when Learner A was crying and told him, Learner B, that the applicant hurt his testicles. The applicant however did not hurt his testicles because he hit his testicles himself against the desk. He confirmed that he and Learner A were in the class that whole day, except that Learner A walked out just as he always walked out of the class. He could say that he saw everything very well that happened in the class that day, but not everything as in everything. He confirmed that he saw the applicant hit Learner A on the arms and saw Learner A run away and hit his testicles against the desk.

29. Learner B testified as follows under re-examination: Learner A was hit the same day that he knocked his testicles. It was not the same day that he, Learner B, was also hit by the applicant. He saw that the applicant hit Learner A on his arms and on his hand.

30. Mr A Gunther, the Presiding Officer of the applicant’s disciplinary hearing testified as follows under oath in his evidence in chief: He was the Presiding Officer of the applicant’s disciplinary hearing during 2019. Present in the hearing were himself, the accused, being the applicant, Ms V Mortlock, Mr M Brinkhuis the SADTU representative and Ms M lindeque the Social Worker. He specifically asked parties if they were satisfied with the charge sheet and Mr Brinkhuis stated he was familiar with the charge sheet. Ms Mortlock read out the charge sheet, since he never read the charge sheet himself and left it to the respondent’s representative since she was more familiar with the content of the charge sheet. The SADTU representative Mr Brinkhuis told Ms Mortlock it was not necessary to play the recording of the hearing to save time. Mr Brinkhuis also said it was not necessary to read the charge sheet since they are acquainted with it, in order to save time. The role of the Social Worker was to assist the minor child. He would say that the disciplinary hearing was conducted substantively and procedurally fair. He found the applicant only guilty on the corporal punishment charge. The applicant had a plea bargain with the respondent prior to this for a similar charge. The sanction of dismissal was recommended because this incident happened during the probationary period of the previous incident and the applicant did not show any remorse throughout the disciplinary hearing. The panelist asked for the minutes of the disciplinary hearing, which it was noted were not provided in the bundles of documents.

31. Mr Gunther testified as follows under cross-examination: He had presided over several disciplinary hearings as Presiding Officer. It was his style over the years to ask the initiator to read out the charge sheet, which he only saw on the morning of the hearing. He agreed that it was the respondent’s responsibility to send the charge sheet to the accused educator. It was not correct that the applicant and Mr Brinkhuis had said that that they were familiar with the charge sheet and that it was not necessary to read it out, because Ms Mortlock read it out at the commencement of the hearing. He never let a hearing begin without the charges being read out verbally as he did not believe it was procedurally correct not to do it. He agreed it would make more sense to read the charge sheet out if Mr Brinkhuis had said that it was not necessary to read it out. He could not remember the part that it was during the cross-examination of the applicant that Ms Mortlock asked the applicant to read out the charges when they saw it was a new charge sheet and that they had not received it previously and that Mr Brinkhuis had objected to that. As far as he could remember there was a problem with the charge sheet with respect to the area where the learner was hit, which he thought was the hand and that the hand was taken out afterwards. He could remember at what stage the objection was raised, but it was strange that it was not raised at the beginning of the hearing, with the case continuing. He did not personally talk to the Social Worker regarding her role since they were outside in a compartment and Ms Mortlock told him it was to assist the learner. He could not remember from 2019 whether Ms Mortlock had mentioned during the cross-examination of the applicant that the Social Worker had made the case on behalf of the learner. A 7 minutes’ clip from the disciplinary hearing was played surrounding the charge sheet in the presence of the parties, which although faint, confirmed that Ms Mortlock had read out the revised charge sheet in the disciplinary hearing.

32. Mr Gunther testified as follows under re-examination: Mr Brinkhuis did not have a problem at the time when Ms Mortlock read out the charge sheet. The fact that the charge sheet read that the learner was hit on the hand or just hit was not a material difference to him as Presiding Officer since it would not have made any difference to the decision. To him the deed of hitting a child and not where the applicant struck him, the hand or arm or shoulder, with the mere fact that the learner was hit made him take a decision on whether the applicant was guilty or not.

33. Mr K E Jones, the Principal of De Rust Primary School, testified as follows in his evidence in chief: He had completed 23 years’ of service with the respondent. He was appointed about 10 years ago at the school, with about 5 years as a Head of Department. The role of a Head of Department was to monitor and guide the educators assigned to him and set an example to the educators reporting to him. He explained what he knew about the incident involving Learner A. The incident was reported to him by Learner A’s mother as an incident of alleged assault on learner A by the applicant. Learner A was with him the day of the incident on that specific day. He had asked Learner A to come and see him during the break about another incident to hear his side of the story. Learner A came to see him after the break, it was reasonably late in the day and it was the time that Learner A was also complaining pain when he told Learner A he must go to the sick bay. It was after school when they had finished exams and he told Learner A to lie in the sick bay and wait for the bus home. Learner A did not say where he had pain but it looked like he was in pain and that it was to do with his sex organs. It was about 12h00 that day. Learner A had told him he was with the applicant. He did not ask Learner A where the pain was and what the whole story was since it was a busy time with exams. He could not remember the exact date that the mother came to report the incident at the school, but it was the date that the case was reported to Labour Relations, the Circuit Manager and the Social Worker on the applicable form. The issue of corporal punishment was addressed at the school with many interventions and professional training at least every term, of which the applicant was aware of. He was aware of two other incidents when the applicant had been previously been charged for alleged complaints of corporal punishment and alleged assault and which were settled through plea bargains.

34. Mr Jones testified as follows under cross-examination: When Learner A came to him around 12h00 which was late on the specific day, Learner A informed him that he had finished writing an exam with the applicant. Learner A did not say what subject he had written. He had told Learner A during the break to come see him but Learner A did not come during the break and only came to see him about 12h00. He could not recall specifically where he told Learner A that, but it was definitely not in his office. He responded to the applicant’s version that the children had written exams and that the break was past 10h30, that it could be correct. He explained what happened when Learner A was in the office with him. Learner A was not long in the office because it was a busy time. Learner A had stood in front of his desk and indicated that he was in pain. Learner A did not say specifically where, but that he could deduce that he referred to his sex organs. He suggested to Learner A that he rather spend time in the sick bay since he was a bus rider and could not walk home. He did not walk with him to the sick bay but assumed he went to lie down, and remained behind in the office. He did not tell Learner A to sit down when he was in the offce and did not offer him coffee or tea, which he did not do to learners. He did have cookies which he offered to learners who were upset, which he may have done to Learner A. Learner A did not mention or show anything else to him that day, apart from indicating discomfort with his sex organs. Learner A did not come and see him immediately after the break as he had testified. Learner A was not twice at his office that day, but only once, which was the truth. His original idea was to ask Learner A about his side concerning the assault against him the previous day, but he never got to that. Learner A only come to him the one time that day when Learner A indicated he was in pain and he told him to go to the sick bay. He did not ask Learner A what the caue of the pain was and Learner A did not tell him. He did not ask Learner A because he assumed the boys sometimes play rough and it often happens that the child gets hurt. Learner A did not complain to him that he had got a hiding from the applicant nor showed any marks of such a hiding. He could not recall Learner A telling him that he got injured because the applicant pushed him against the table. He also did not say to Learner A that he could not take him to the clinic. He did not take children to the clinic, which is why he referred them to the sick bay and he never mentioned anything about the clinic or that the parent was be present to Learner A. He did not take Learner A to the sick bay and Mark who worked there could have taken Learner A to the sick bay as he had testified. According to him Learner A went to the sick bay and not back to the applicant as testified by Learner A. It was the procedure that the form 22 that was completed relating to the incident is also sent to the Social Worker. He responded to Learner A;s version that there was a mark across his hand after the applicant had hit and that he was with him as Principal after he was hit, that Learner A did not show him a mark or that he observed a mark on his hand. He could not remember the date when Learner A’s mother was with him since it was a long time ago in 2018.

35. Mr Jones testified as follows under re-examination: He could not remember asking Learner A why he only came later after the break. He would naturally during exam time not want children to be out of class during work time. The school comes out at 12h30 during exam time. He believed Learner A that he was in pain when he stood in front of him as could see it on his face.

36. Ms X, the mother of Learner A, testified as follows under oath in her evidence in chief: She reported the complaint to Mr Jones at the school on a Thursday. She explained what happened the day of the incident, which was a Wednesday. When Learner A came into the door she asked him why his face was pulled funny and he told her that the applicant had pushed him against the corner of the table. Learner A told her that Mr Jones had called him in about the previous Friday’s events and that Mr Jones had asked whether he was going to open a case against the men who had assaulted him. He went to the applicant’s class after he came from Mr Jones when the applicant asked him where he was coming from and he explained why Mr Jones had called him. She repeated what Learner A had testified previously as to what happened in the classroom, which is not repeated again here. After Learner A had got home and told her what happened she on the next day went to the school to see Mr Jones and asked him what happened between Learner A and the applicant the previous day. Mr Jones called the applicant to the office and he stated that he did not believe that he had hurt Learner A and that he must have got hurt at another place. They then went to the applicant’s classroom and the applicant called some of the children out of the class to tell her what happened the previous day, calling them by name. The one child had said that the applicant did not do that, the other child said that the applicant hit Learner A with the knee and the other said that the applicant hit him across the face, when she observed that she was not going to win the case because the children were all talking muddled up and confused. She and the applicant went to Mr Jones’s office afterwards and a couple of children came to the office and Mr Jones asked them what happened. One of the children said that the applicant had done it and also said that the applicant would pay the men who assaulted Learner A on the school grounds to assault him again. She could not remember if the police came after that to the office when the applicant had already left the office. Mr Jones had suggested to the one policeman that they try and resolve the matter and ask the applicant to pay the expenses of the transport to fetch her and Learner A from the hospital on the Wednesday. They sorted it out afterwards in the school staff room and the applicant agreed to pay for the transport either the Thursday or the Friday, and would send the money to Learner A. When Learner A got home he told her that the applicant would come and give the money himself to her. This all happened before Learner A’s operation. Before Learner A was operated, the doctor at the hospital had said they they must immediately go back to the doctor if Learner A’s testicle swelled up again, which they did on the Saturday morning and saw Dr le Roux and Dr le Roux sent him to the hospital, where he was operated on the Sunday and the testicle was removed. Learner A was discharged from hospital the Tuesday and she went to the police station the Wednesday to open a case there against the applicant. Nothing happened about the case with the police as there was too little proof, since the one child said this and the other child said that about what happened. The respondent had stated that they had a case against the applicant, whereafter she decided to withdraw the case with the police. The policeman at the station was rude and treated Learner A as if he was the guilty one.

37. Ms X testified as follows under cross-examination: She agreed that what Learner A told her that happened in the classroom that day was hearsay evidence since she was not present to see what happened. Based on what Learner A had told her she went to see the Principal at the school to find out what happened. When Learner A got home that day he also cried, apart from pulling his face strangely, having a gray top around his body and walking with his legs apart. She forgot to say earlier that Learner A also cried and did not think that she included that in her statement to the police, since it was a long time ago in 2018. Learner A had told her that Mr Jones called him to the office about the other incident of the fight and asked Learner A if he was going to open a case for that. She responded to the version that Mr Jones had testified that they never spoke about that incident because he saw that Learner A was in pain, that what Learner A had testified was then not true. She was referred to the rest of Mr Jones’s testimony such as that Learner A did not go back to the applicant’s class after he saw him but asked to go to the clinic and that learner A was only once with Mr Jones on that day and not twice as according to Learner A’s version. This was not what Mr Jones told her. Mr Jones had also said that he could not understand why an educator hit Learner A as Learner A was a good child. Learner A had said to her that the applicant had told him he was lying when he said that he had come from the Principal’s office and it was pointed out to her that Learner A had testified that another girl in the class, Learner D, had said he was lying about that, and not the applicant. She confirmed most of Learner A’s testimony relating to being hit and pushed against the corner of the table and the rest of what happened in the classroom that day as told to her by Learner A, which is not repeated here. She would not know if Learner A had lain his head down on the desk after he experienced the pain of being pushed against the table since she was not there. When she was with Mr Jones at the school and Mr Jones asked the applicant what happened, the applicant’s exact words were that he did not believe that he hurt Learner A and that Learner A must have got hurt in another place, which was exactly the same that he said at the police station. The other children said the applicant had touched Learner A, with specific reference to Learner B. She was referred to the differences in the versions testified to by Learners A and B, which she heard and acknowledged. When she was at the applicant’s classroom and he called the children outside and the applicant asked them to say what happened the previous day, the children spoke all muddled up (“deurmekaar”) with them saying things like the applicant had not done it, that the applicant had hit Learner A with the knee, that the applicant had once scratched one learner’s face before and that the applicant just played with Learner A, which is why she had observed that she was not going to win the case there. She did not say that those children were lying. They did not all talk. There was one child who said that the applicant hit Learner A, but he said that in the Principal’s office, not at the classroom door. She was not sure when the applicant was in the office, before or after the children were called. She did not specifically look for three children by name as informed by the applicant, for she did not know them and only saw them in the office for the first hearing. She was asked to explain what happened in the Principal’s office that day when a group of children were called to the office and was not sure if the Principal or the policeman called them to tell those present what happened. The one boy, whose name she could not remember, had said that the applicant had hit Learner A because the applicant had said that he would pay the men who assaulted Learner A to hit Learner A again. She never saw that boy again after that or in a hearing. The applicant had not explained to her that he referred to another incident when he spoke to Learner A about bullying a small boy and that if it was his child he would get another child of his size to hit Learner A. Mr Jones had spoken about a settlement, which involved money and the transport expenses. The policeman present in the office had explained to the applicant that it was a serious matter and that he should not do it again and explained what would happen if a case was opened with the police. She had forgotten to mention that in her evidence in chief. She never said to the applicant when he offered to pay the R250.00 for transport costs that she was struggling, but only said she was a single parent raising children on her own since the father was not paying maintenance, nor did she say that there would not be a case since there was no talk about a case that day. She confirmed that the applicant did not pay that amount to her and heard the version that the applicant decided not to pay it since it could be regarded as an admission of guilt. The witness became tearful at this juncture and was given a break to compose herself. She heard the version that the applicant would explain that Mark the Security Guard had already observed that Learner A was walking strange since the Monday, which is why the applicant had stated that Learner A must have got hurt somewhere else and led to his testicle being removed and that Learner A would have felt the pain immediately if the applicant had injured him. She did not respond to this version. She explained that she withdrew the case at the court because the lady there (assumed the State Prosecutor) spoke in a room with Learner A and the Sergeant and asked what happened, after which she said that the children were talking “deurmekaar” and she did not know what to do with the case. This was the case of the men who assaulted Learner A at the school. She was referred to the statement that was made at the police station in December 2018. It was not mentioned in the statement that Learner A had cried when he arrived home that day nor that the applicant had said that he did not believe he had hurt Learner A as this could have created the impression that the applicant had hurt Learner A.

38. Ms X testified as follows under re-examination: She believed Learner A and that he spoke the truth about what he told her because a lot of things said here were not what she said. Learner A had said that he was hit over his fingers and it was correct that fingers are your hand. She questioned why an educator would say to a child that if it was his child he would have got children his size to show them since they gave their contacts and got letters and the Principal or learner could have told her that her child was bullying other children. They did not talk about a settlement when she and the applicant were alone in the room. She agreed that if someone hit you in your private parts such as cricket players as a man you would immediately collapse with pain, but Learner A would have kept in the pain and would never say to someone he got hurt and is also very forgetful.

39. Ms M Lindeque, School Social Worker, testified as follows under oath in her evidence in chief: She was a Social Worker in the service of the respondent. She was present the day of the applicant’s disciplinary hearing and her role was only to support the learner victim and the witnesses and not to act as an intermediary. She became aware of the incident from the form 22 reported to the respondent and the Directorate Labour Relations by the school via e-mail.

40. Ms Lindeque testified as follows under cross-examination: The type of support that she provided to learners was to provide emotional support before the hearing and to explain what they could expect. She also did breathing exercises to get them relaxed and in this case the alleged victim could not have his mother present, whereby she provided support to him. In the applicant’s hearing she provided support to Learner A and two other witnesses who testified. She remembered that of the two others one was a girl she identified as Learner D and the other a boy who was identified as Learner B. The first time she saw these learners was at the disciplinary hearing and she had not seen them previously. She spoke to them that morning when she saw them the first time when they were in the room waiting for the hearing and she prepared them on what to expect. They did not tell her that morning what happened or provided any detail of the case since the rule was not to go into detail as it could possibly traumatise them. The Directorate Labour Relations asked her to provide support to the learners. She responded to the version that there were other learners in the hearing to which no support was provided, that she only provided support as requested and did not ask if there were any other learners who needed support. She was not sure if any other learners required support but it would be fair to also provide support to them. She responded to the version that the applicant and his representative Mr Brinkhuis heard in the hearing that Ms Mortlock said that she, Ms Lindeque, reported the case that she did not report the case but the School Principal on the form 22. She was not in the hearing when Ms Mortlock allegedly said that she reported the case. She had stated that she had not acted as an intermediary in the disciplinary hearing because of misunderstandigs relating to their role. She was not trained as an intermediary and had never acted as an intermediary, only in a supportive role. She responded to the question on whether she gave Learner A counselling as well as having prepared him for what to expect, that she had one discussion with the mother and the child on 12 December 2018 to make sure the parent understood the process and that she could be contacted if the learner needed emotional support. They did not contact her again and on 23 January 2019 she followed up with Learner A to establish if he was sleeping and eating normally and he said everything was normal and that she did not need to offer support to him. On 12 December 2018 she did not talk about the case and only Learner A’s emotional state when the mother told her about the criminal case. She contacted the relevant police official to keep the mother updated regarding the criminal case. She did not need the detail of the case to provide emotional support to the child. She knew what the case was about since sufficient information was provided on the form 22 but never spoke about the facts with the learner. She could not comment on what Ms Mortlock had said that the support that she provided was only to sit with the learners in the hearing and that Ms Mortlock had mentioned that she did not know whether she had prior sessions with the learners and Learner A’s mother, since she was not present and did not know what was said, but could only testify to what her role was.

41. Ms Lindeque testified as follows under re-examination: She confirmed that she sat with the learners as support during the hearing.



THE APPLICANT’S EVIDENCE

42. The applicant’s case was that applicant will allege that he did not assault Learner A as indicated in the charge sheet. The applicant will contend that he said to Learner A to sit in the back after he disturbed some of the learners where he was and he went to sit in the back of the class. The learner did not have a pen and asked one from the applicant. They were busy writing an English paper and the applicant provided the learner with the pen. Not shortly after that the learner stood up and asked to leave the classroom, for whatever reason. The applicant said to Learner A he had not started with the exam paper and the applicant refused that he leave the classroom, whereafter the learner walked out without any permission. With respect to substantive fairness the applicant denied that he assaulted the learner to either push him or hit him with a pipe and he should have been found not guilty by the Presiding Officer of the disciplinary hearing. With respect to procedural fairness the Social Worker to whom the complainant reported the case was also used as an intermediary in the disciplinary hearing. The applicant would contend that the Social Worker had intimate pre-knowledge of the incident and the complainant and the respondent’s witnesses were assisted by the same Social Worker while she and the witnesses were sitting behind a screen in the disciplinary hearing. The applicant’s representative had objected to this during the hearing but the Presiding Officer did not apply his mind to the objection and rejected it, with the assumption that the Presiding Officer was biased since he was paid by the respondent for his services. The applicant’s allegations of unfairness were augmented when facts common cause and in dispute were subsequently established. In the circumstances both substantive and procedural unfairness was alleged. The relief sought was that the applicant be reinstated on the same benefits as Head of Department, with retrospective compensation from the date of dismissal which was 22 July 2019. The applicant’s PERSAL number was 50672428 and his total salary was R31277.22 per month at the time of his dismissal.

43. Mr A L Damons, the applicant, testified as follows under oath in his evidence in chief: He was aware of the complaint and charge on which he was found guilty. He explained his version of what happened surrounding the alleged incident that took place on Wednesday 28 November 2018 in his classroom. They were busy on 28 November 2018 writing an English exam paper. Ten minutes after the break his class went inside. His class stood in rows in front of the classroom door while he was busy helping the technician inside who replaced the wiring in the ceiling/roof to clean up. At that stage six of his learners disappeared out of the rows. About 10 or 20 minutes before 11h00 they entered the classroom with the six learners not there and he handed out the English paper. He then let Mr Damon the Deputy Principal know that six of the learners were not there. They continued with the paper and the learners started writing. About 10 minutes before 11h00 he discovered a part of the exam was not in the paper and he wrote the three questions on the board. He also read the questions out to the learners as many of the learners were in the back of the class. Learner A entered the classroom around 11h00 while he was busy reading the last question to the learners. Learner A walked towards his desk which was the second desk in the second row from the door. Learner A had not sat down yet when he asked him where he was coming from. Learner A told him where he was came from the Principal’s office since Mr Jones had called him. He said to Learner A that he knew it was exam time and cannot be late. One of the other learners, Learner D, said to Learner A that he was lying and that he was not at the Principal’s office but walked around the verandahs (stoeps). They had an altercation and he told them to finish arguing or they must go and argue outside since the children were writing exams. Learner C calmed down and he moved to the table to fetch an exam paper for Learner A. He took the paper to Learner A and told him he must sit down so that he could finish writing since they did not have a lot of time left. He was worried because the paper involved a lot of reading and Learner A’s reading was not so good. Learner A sat down at the second desk and he, the applicant, went forward to go through the work on the board to read out to Learner A what he had read to the other learners. While he was moving forward he heard Learner A say something to Learner D and he thought he was going to carry on talking. He then told Learner A to get up and sit at the back desk as he was worried that he was going to bother the learner sitting next to him. Learner A went to sit at the second desk at the back and asked him for a pen. He took the pen to Learner A and went to the front again to read through the three sentences on the board for him. After he had finished explaining on the board Learner A asked if he could leave the classroom. He refused and said to Learner A that he had just come into the classroom. He then asked Learner A while he was sitting in the back about an incident that happened during which he had apparently thrown a child from the steps the previous Friday, when Learner A denied that he had thrown the child from the steps. He spoke to Learner A about his conduct and that he must not hurt the small child and bully other children because he was bigger than them. He said to him that if he was as small as that child and Learner A threw him from the steps and hurt him he would have paid somebody his size to hit him since he did not have brothers to go and fetch. At that stage he was just worried about Learner A’s conduct and that something worse could happen, with his intention for Learner A to change his behaviour. Learner A got up after he spoke to him about his conduct and bullying of the children and left the classroom. At that stage he thought that Learner A was cross because he spoke to him about his conduct so he let him go. When Learner A walked out of the door three of the other learners who were also late with him were standing outside the door and entered when he opened the door to go out. He also spoke to them about coming late since he had spoken to them the whole year about punctuality. He was worried that they would not be able to complete the paper. He gave the paper to them and one of them told him that two other learners who made up the six were hiding in the bus. He could not go self to fetch those learners since he was busy supervising the exam. He told Mr Damon about the learners outside in the bus but Mr Damon could not go either since he was also supervising. He asked one of the learners who worked fast to go and call Mark the Security Gate Guard and Mark went to fetch those learners out of the bus, when it was almost 11h15. He was worried about the time and none of the six learners who were late could complete that paper that day. On that specific day school adjourned half an hour early at 12h00 as a result of an arrangement with the high school and the learners left at 12h00 to go home on the bus. He remembered that Learner D had said when the class adjourned that she was going to say that he, the applicant, hit Learner A’s testicles to pieces (‘stukkend’), which he ignored at the time. He then explained what he did after the class and school went out, which is not repeated here, save that he was on ground duty and went to the bus pick up point where he saw Learner A, Learner B, Learner D and Learner A’s cousin standing at the tree at the pick up point. He saw to it that the learners who went home with the bus got safely on the bus and told the others to go home. He explained his version of what happened the next day when Learner A’s mother came to the school. He could not recall the exact words of the mother and the discussion that took place, but she was very unhappy when they spoke in the office about Learner A’s testicles getting hurt. He assured her in the presence of Mr Jones and two policemen who were there that he was not responsible for childrens’ testicles that got injured. The mother insisted she wanted to know herself from the children what happened and Mr Jones asked him to accompany her to the classroom. All the learners were not at school that day as was the tendency when they had finished writing exams, with only about half of the class present. He called five of the learners out of the classroom and asked them to tell the mother if he had hurt Learner A and they told her that he did not hurt him, but she would not believe those learners. She asked for three learners by name, being Learner B, Learner D and another learner, but they were not at school that day. The mother said to them she was not going to get her case right there since they were all lying and then she walked away. The policemen were still present when they returned to the office and one of them suggested that they sort the matter out, to which he agreed and spoke to the mother in the staff room. He assured the mother that if Learner A got hurt he did not get hurt in his class. She said it cost her money to get to the hospital with Learner A as had happened the previous evening and that she did not have a lot of money to rent a car and was struggling as a single parent. Her felt sorry for her and offered to help her and pay at least R250.00 for the transport money which he said he would give to Learner A on Friday 30 November 2018, whereafter they parted in a good manner. He also informed Mr Jones and the policeman that the matter was sorted out. He later decided to not give the money to her because it would seem as an admission of guilt and that he was responsible for the injury to the learner’s testicles. The next week on Wednesday 5 December 2018 he was called to the De Rust police station for the incident relating to Learner A, which was the first time he was there. Learner A and his mother were also at the police station. The police officer wanted to know what happened in the classroom and he told him he was not responsible for the injury to the child’s testicle. The mother said that he did not keep to his arrangement with the money and that she was going forward with the complaint. The mother opened the criminal case but the case never appeared before the court and he was informed that the prosecutor refused to prosecute. When the learners came into the class 10 minutes after the break on 28 November 2018 he was explaining with the black pipe on the board as he normally did. He put the pipe down on the table when he took the exam paper to Learner A. Learner A was not near his table on that day and he never hit him with a pipe or anywhere on his hands or pushed him. The only time he was near Learner A that day was when he took the paper to him and the second time when he took the pen to him at the desk at the back. The time that he had the pipe in his hand he was standing at the board and Learner A was standing about about 2 m away from him at the second desk. During the discussion with the Principal, the parent and the policemen, there was no talk about any hitting but only about the injury to Learner A’s testicle. He could not explain how the investigation was conducted after the incident of Wednesday 28 November 2018 since the children had moved to the high school and he was not there. After his discussion with some of the learners who were in his class they told him they were apparently also called to tell what happened in the class and they explained what happened and that there was nothing about pushing and hitting and that they never heard from the people again. He was always sceptical about the identification of the witnesses since Learner B was not in the class at the time to witness an incident during those 10 minutes. He confirmed that Learner B was one of the three learners outside the closed door when Learner A walked out and they entered the classroom. They would not have seen if something had happened in the classroom since they were not there. Here was no reason for him to have assaulted Learner A since he was not cross or aggressive towards him but was more disappointed in those learners for coming late. Learner A had told him at that stage that Mr Jones had called him, which was an acceptable reason, and he was more cross with Mr Jones since he knew that they had to write exams, but he later found out as testified by Mr Jones that he did not call Learner A then. Learner A never gave him disciplinary problems and there was always a good relationship between them, but his biggest problem with Learner A, as well as other learners, was that he often came late, which he spoke to them about. The other problem was that Learner A always had an excuse to not do activities, such as that he did not have a pen or his head ached. Learner A tried not to create problems to attract his attention. With respect to the process followed in the disciplinary hearing, they did not object to the respondent changing or taking away charges, but his biggest objection was that they were not informed in advance before the hearing regarding the changes to the charges since factual things were changed. He for the first time became aware of the amendments to the charge sheet, specifically to the first charge, during cross-examination when he and his representative realised they were not working off the same charge sheet as the respondent. His representative Mr Brinkhuis made this known to the Presiding Officer during his cross-examination. The reason for the objection was that certain facts in the charge sheet were changed which could have changed the evidence and they could have prepared themselves differently for the hearing. The other problem that he had with the disciplinary process was that Ms Mortlock had said during the cross-examination that the Social Worker had opened the case when he and Ms Mortlock differed about the dates that the case was reported. Their other objection was how a child who was not in the class at the time, namely Learner B, could testify in the disciplinary hearing and again at arbitration. The only true thing that Learner B testified correctly was that he and Learner A spoke under the tree. It hurt him that the mother testified that he paid people to hit her son. There were incidents that he was involved in previously that he was sorry for, had destroyed all the hard work he had put in with the children and had created the wrong image of him as a person. He had taken the responsibility for the previous incidents, apologised to the parents and children and showed remorse. Mr Gunther had testified that he did not show remorse, but he could not show remorse for something that he did not do.

44. Mr Damons testified as follows under cross-examination: His main role as a Head of Department at the school was to ensure the implementation and monitoring of the curriculum. There were other educators entrusted to him and it was correct that he should be an example to them. Any of his colleagues could be asked and they would testify that as Head of Department the standard of work that he delivered set an example to them. The allegations that he hit children was not an example for other educators, unless proven. He was previously charged for two similar offences, with the names of the two learners mentioned. He conceded that he was charged three times when the current charge was included. He had not lied before when he said there were only two incidents, since he understood the question incorrectly. The outcome of the two previous offences was that he concluded plea agreements for both. The time period within which one may not have a next offence if a plea bargain was entered to is 6 months. The current offence happened within the 6 months’ period from the previous offence. The reason why he stood outside the class with the children for about 10 minutes was for the technical wiring work inside the classroom to be cleared up. It was during that time that the six children disappeared. He sent a learner to let Mr Damon know about 5 minutes after they went into the class that the six children were not there. They started to write the exam immediately that they came into the class as the time had already been cut by half and hour. He responded to the question on how the children could start writing immediately if he still had to explain something on the board, that it was about 10 minutes after the children came in and after they started writing when he realised that three questions were missing from the paper. He did not explain the paper to the children, but the instructions. He felt it was not their fault and explained the instructions written on the board for the children at the back. He explained this on the board for about 15 minutes. He repeated again the time and sequence that Learner A and the other three learners came into the class. He confirmed that Learners A and D had an exchange of words because Learner D said that Learner A was lying and had not been to the Principal. He silenced them by telling them to be quiet and stop arguing or go out as the other learners were writing exams. He knew that it was wrong and that he could not send them out when they were writing exams but thought it would calm them down, which Learner D did, so that they did not disturb the other learners. He had spoken to Learner A about his behaviour just after he asked to the leave the classroom and he refused that. It was during the exam and he wanted to talk to him about the previous incident on the 23rd about the bullying and when he, Learner A, was assaulted since he could not get around to that previously. It was put to him that he was unfair to the other learners and that it was not the right time to speak to Learner A then when they were writing an exam, to which he responded that it was perhaps not the right time to talk about that but it was the only time he could talk to Learner A since he might not see him again and it was the last year at Primary School. For him it was the most suitable time to speak to Learner A then. He agreed that English and the exam were important. He did think about the other learners who were writing exams but he was worried that he may not see him again and he wanted the other learners to also know about bullying. Although it was perhaps not the right time he felt it was necessary so that the same conduct was not demonstrated at High School. There was never a parent who came to him to complain about Learner A’s conduct either inside or outside the classroom. He heard about Learner A’s bullying behaviour on Monday 26 November 2018 from the learner who was bullied, but the complaint was not reported to him. This learner told him that Learner A threw him off the steps and that his brothers came and assaulted Learner A, apparently at the bus on 23 November 2018. That was the first time he became aware of the bullying and when that learner and his friends told him about other incidents with Learner A. Although it was hearsay he still felt it necessary to talk to Learner A about the bullying during exam time although it was not the right time to talk to him. He asked Mark to fetch the children out of the bus since they were supposed to write an important exam, which was English, and his concern was about the time. Not one of the six learners who were absent at the time could finish the exam paper. He sent a learner to tell Mark to fetch the children so that they can write the exams. He responded to the question why he had sent learners during exam time to Mr Damon and Mark that the learners he sent to Mr Damon and Mark could have completed their exams in one hour and were reliable learners who finished before 12h00 when most of the learners were finished writing. He would have to explain why there were no marks for six children and he would have gone himself if he could. By sending the two learners it would naturally have distracted the attention of the other learners. He was asked to explain how he could have felt sorry for Learner A’s mother and had offered to give her R250.00 for transport and then did not pay her because he would not admit guilt, to which he responded that he was concerned that if he paid the R250.00 it would appear that he had paid her off to not open a case when he knew that he had not hurt the child. He was sorry for and sympathetic towards her and Learner A because of what happened to Learner A. When he explained on the board he did not explain the questions, but the instruction. The last part of the exam paper was not copied and he wrote it out on the board and read it out since the learners at the back could not see. He had the pipe in his hand while reaching to the board. He did not testify that he gave the paper to Learner A when he entered because when Learner A entered the classroom he was reading out the last part of what was on the board. He was standing at the board with the pipe in his hand and asked Learner A where he was coming from and repeated what Learner A had said and the argument that happened between Learner A and Learner D. He still stood at the board with his pipe and Learner A stood at his desk whereafter he put the pipe on the table and went to give the paper to Learner A. After he handed the pen to Learner A he read the three questions on the board out to him, which was unfortunate since the others in the class had to listen to it again. The pipe was in his hand while he did the explanation. He had picked up the pipe again from the table after he had handed the pen to Learner A while on his way to the front of the class. It bothered him and he could not understand why Learner D said on that same day when the school broke up that she would say that he, the applicant, had hurt Learner A’s testicles. Learner D did not say that because he had a pipe in his hand and hit Learner A. He had a pipe in his hand but he was nowhere near Learner A at the time, with the only close contact when he gave Learner A the paper and the second time when he handed him the pen, with the pipe not in his hand both times. Learner D had said many things and also said he gave her R100.00 to lie. It was noted that Learner D did not testify since it was reported that she was ill. When Learner D was to testify and Ms Mortlock said she was ill while they adjourned he saw Learner D walk across the road and her brother called him and told him that Learner D was not sick with his words that Learner D said she did not want to come and lie here anymore as those people did not want to pay her. Ms Mortlock objected to this and explained that Learner D was present the first day and would have testified then, but was sick the second day. Learner A was not one of those children who wanted to attract attention and make trouble in the classroom because he knew that he, the applicant, would stand at his desk to work with him, since his strategy when the learners were busy with an activity was to work one on one. He was constantly with Learner A and Learner D since he knew that they were behind. He responded to the question as to why Learner A would say that he hit him when he was not one of the attention seekers in class, that it was never about the hitting and always about the testicle case. He responded to the evidence of Learner A that there were two pipes in the class, a red and black one and that he hit children with that, that there were about four or five pipes in the class which came from the garden and thrown in the drum. The pipes were not there to assault children but were removed from the drum so that other children did not take them and were put away. He did not know if Mr Jones called Learner A or not that day but he may have, which was confirmed in Mr Jones’s evidence. As to whether his representative put to Mr Gunther that he said that Mr Gunther read the charge sheet at the disciplinary hearing, he could not remember if the charge sheet was read as it was only under cross-examination that he came under the impression that the charge sheet was not read and that it was picked up then that the facts were left out of the charge. He could not remember what Mr Gunther testified on who read the charge sheet, but he thought Mr Gunther said the charge sheet was not read to save time or that it was read and he and his representative were perhaps busy with something else at the time. It was put to him that he was dishonest since Mr Gunther testified that she, Ms Mortlock, read out the charge sheet as she would understand it better since she compiled it, to which he conceded that according to the recording that was played Ms Mortlock read out the charge sheet. It was also put to him that if he did not remember things in the arbitration whether he also did not remember that he hit Learner A, to which he responded that he could remember everything that took place in his classroom on 28 November 2018. He confirmed that Mr Jones reported the case on 5 December 2018 and not the Social Worker. He never said he would pay somebody to hit a child if it was his child that was hit. What he said was in the context that if he was as small as that learner he would have paid men to hit him as he had no brothers, but he did not mean he would pay men to hit Learner A. He responded to the question what educator would do that even if it was his own child that his message was clear to not bully other children, with his intention not bad and was to talk about Learner A’s conduct, since the children who came into the gate could have assaulted him with a sharp instrument. He had admitted guilt previously on two occasions and had signed plea bargains when two learners were hit. Assault was assault, whether a learner was hit or kicked. The first time in 2016 that learner blew his nose on the other child’s book and he hit that learner behind the head when he came past him, the applicant. He admitted he was wrong and accepted the charge. He did not plead not guilty for the present charge because he knew he would have lost his work since on 28 November 2018 there was no assault or pushing or hitting in his class, which never happened.

45. Mr Damons testified as follows under re-examination: When he was asked how many incidents he was involved in previously he understood that he knew of two incidents, the one where he hit a child and another when he hit a child behind the head, which were the ones he entered into plea bargains for. The learner when Learner A was assaulted told him about that incident, therefore it was not hearsay evidence. He did not disadvantage the two learners that he sent to Mr Damon and Mark as they had completed their papers before 12h00 and did well in their exams, even though he had sent them. The other learners were not disturbed because he explained the instructions to Learner A while they were writing their exams, as they all finished their papers except the six who were late. It was not their fault that the exam paper was incomplete, which is why he read it out to them. Even if this charge was outside the 6 months’ time period he would still have pleaded not guilty since the incident as alleged never happened in the class.

46. Learner C testified virtually as follows in his evidence in chief: The applicant taught them English in 2018 at the Primary School. He was asked to tell what happened on 28 November 2018 in the classroom after the break in which Learner A was involved. He remembered that Learner A came into the class and walked to his desk. The applicant asked him where he was coming from and he said he was coming from the Principal’s office. Learner D then said he was lying because he was coming from the other side with the children who had bunked class. Learners A and D then argued and the applicant told them they could not argue like that since they were disturbing the other children in the class and that they should go and argue outside. The applicant then told Learner A to go and sit down and Learner A then sat in the second row at the second desk. Learner A was then talking behind the applicant’s back and the applicant told him again that he was disturbing the other children and instructed him to sit in the back of the third row at the second desk. The applicant then went to fetch the exam paper on the table and took it to Learner A. Learner A then told the applicant that he did not have a pen and the applicant went to fetch a pen for him from the table. Learner A then just wrote his name on the paper and lay flat on the desk. After a while Learner A stood up and asked the applicant to leave the classroom, which the applicant said he could not do since he had already come late. Learner A then went to sit again at his desk and lay flat on the desk again, whereafter he stood up, walked out of the class and talked back again to the applicant. After he walked out of the classroom Learner B and two other learners entered the classroom. Learner B went to sit down and the other two learners said to the applicant that there were still other children sitting in the bus. The applicant then sent someone to tell Mark that he must go and fetch the children on the bus, which Mark did. He could only remember the name of one of the learners who Mark fetched. When Learner A came into the class he the first time went to sit in the second row at the second desk. He, Learner C, sat behind Learner A in the third desk in the same row. When Learner A came into the classroom they were busy with English work for the year end exam and the applicant was standing in front of the class at the board. The applicant was at the board explaining to them with chalk in his hand. The applicant had nothing else in his hand when he was explaining to them. He knew about a black pipe that the applicant had in the classroom. The applicant did not have the pipe in his hand in any way when Learner A entered the class. The applicant always used the pipe in the class when he finished writing to show and explain the work on the board. The applicant explained the work with the pipe on that day. The applicant did not hit Learner A with the pipe when he entered the classroom. He did not know anything about the applicant hitting Learner A with a pipe over this hand. He also did not know about the applicant pushing Learner A in front of the class so that he hurt one of his testicles. He would have seen it if the applicant had hit and pushed Learner A because it would have happened next/close to him. He confirmed that he was telling the truth about these events.

47. Learner C testified as follows under cross-examination: He knew the difference between the truth and a lie. He was now 17 years old and was presently in grade 8. This was the second time that he had testified for the applicant. He could not remember when the first time was. The applicant had told him to come and testify at the arbitration. Nobody told him what to say today. He responded to the version that he had testified in the first hearing that the applicant had tapped Learner A lightly with a black pipe on the shoulder but did not push him, that he now remembered that the applicant did not tap Learner A on the shoulder. He did not tell a lie in the first hearing but spoke too quickly then. He was telling the truth because he remembered it now. What he said in the first hearing in 2019 was also the truth but he spoke too quickly. He was also speaking the truth now. The witness started getting confused. The truth was that the applicant did not tap Learner A on the shoulder and did not push him, which he only remembered now about the tapping on the shoulder. Learner A lay twice with his head on the desk. The applicant was busy with English work for the end exam. The applicant was standing with the chalk in his hand while he was explaining on the board. He responded to the version that the applicant testified that he was standing in front of the class and explaining with a pipe on the board that the applicant wrote on the board and when he finished writing he pointed with the pipe on the board. He explained his testimony that if it had happened that he would have seen it since it happened next to him, that what he was referring to he would have seen it if the applicant had pushed Learner A or hit him with the pipe. He was not lying when he in the previous hearing in 2019 said that the applicant had lightly tapped Learner A with a black pipe on the shoulder and had not pushed Learner A.

48. Learner C testified as follows under re-examination: He had testified to the whole truth of what happened in the class and what he saw.

CLOSING ARGUMENT

49. Written closing arguments were presented by the parties as agreed to at the conclusion of the arbitration. These closing arguments are not repeated here for the sake of brevity, but have been taken into account in arriving at the award.

ANALYSIS OF EVIDENCE AND ARGUMENT

50. I am required to determine, on the balance of probabilities and in the circumstances of this case, whether the dismissal of the applicant, Mr A L Damons, by the respondent, the Department of Education - Western Cape, for alleged misconduct was fair on both procedural and substantive grounds and to grant the appropriate relief if unfairness is found.

51. I also refer again to the facts which were established and agreed as being in dispute in the pre-arbitration minute and confirmed, with amendments, at the commencement of the arbitration, which are as follows:

The following facts were in dispute:

Whether the Presiding Officer read out the charges and pointed out the amendment to the first charge to the applicant and his representative at the commencement of the hearing.
Whether the amendment of the first charge was only brought to the attention of the applicant during his cross-examination in the disciplinary hearing after he had presented his evidence in chief.
Whether the charges were not formally put to the applicant at the commencement of the disciplinary hearing.
Whether the applicant held a plastic water pipe in his hand when he approached Learner A at the time of the alleged incident.
Whether Ms M Lindeque the Social Worker should have served as intermediary during the applicant’s disciplinary hearing due to her having pre-knowledge of the issues in dispute and could therefore have influenced the outcome of the disciplinary hearing, or was only present for emotional support of the three learner witnesses who testified at the disciplinary hearing,
Whether Ms V Mortlock the respondent’s Initiator in the disciplinary hearing informed the Presiding Officer that Ms Lindeque the Social Worker had lodged the complaint against the applicant.
Whether the applicant was guilty or not of the alleged transgression since he denied committing the conduct that he was charged for.
Whether in the circumstances the dismissal was substantively unfair.

52. To first address procedural fairness. The applicant’s prime allegation of procedural unfairness was that the main charge (charge 1) was amended and that they only became aware of the amendment during the applicant’s cross-examination in the disciplinary hearing, which it is noted from the documents was originally scheduled for 12 March 2019 and appears to have been rescheduled for 3 and 4 April 2019. Ms Mortlock who testified for the respondent as the initiator in the applicant’s disciplinary hearing stated she e-mailed the amendment to charge 1 to Mr M Brinkhuis, the applicant’s appointed SADTU representative prior to the disciplinary hearing, assumed that it was received but did not confirm that it was in fact received prior to the hearing, nor was it confirmed with the applicant party at the commencement of the disciplinary hearing that it was received and that they were aware of the amendment. Mr A Gunther, the Presiding Officer at the disciplinary hearing, testified that when the objection was raised by the applicant’s representative in the hearing about the amendment to the charge, he continued with the hearing and dealt with it on the basis that the charges, with the amendment, were read out by Ms Mortlock at the commencement of the hearing and that the change in wording, which was whether the victim Learner A was hit on the hands or elsewhere on the body, did not detract from whether the applicant had assaulted Learner A by hitting him. Although the applicant had conceded that Ms Mortlock had read out the charges at the commencement of the hearing based on an extract of the recording of the disciplinary hearing, he stated that he and his representative may not have been paying attention and did not pick up the change in the wording of charge 1 at the time. The applicant was of the view that the facts in the charge had changed materially, which could have affected their preparation for the disciplinary hearing. Unfortunately Mr Brinkhuis was unable to testify in the arbitration, hence he was not present to corroborate the applicant’s version.

53. The other allegation of procedural unfairness that was raised during the proceedings was whether the Social Worker, Ms Lindeque, who was present to assist the learner witnesses in the applicant’s disciplinary hearing, had lodged the complaint on behalf of Learner A with the respondent, since that would compromise her role as merely being a support for the affected learners. Ms Lindeque had clearly explained her role in the disciplinary proceedings at the arbitration and that, although she had some interaction with Learner A and his mother prior to the hearing as part of her normal duties, it did not involve delving into the merits or facts of the case whereby she could have influenced the disciplinary process and outcome. She also explained that, if she was requested to do so, she could also have provided the same support to the learner witnesses who the applicant also wished to call to testify. The applicant conceded, based on the evidence produced, that Mr Jones the School Principal and not the Social Worker, referred the complaint on 5 December 2018 to the respondent on the Form 22 Reporting of Abuse or Deliberate Neglect of Child in terms of Section 110 of The Children’s Act 38 of 2005.

54. To next turn to substantive fairness. From the outset I am aware that this matter poses the particular challenge of the testimony of child witnesses as defined in the Childrens Act 38 of 2005 (the CA) and the application of the principle of the best interests of the child as contained in section 28(2) of the Constitution of the RSA, which even if not raised by the parties I am still bound to consider, as well as the reliability and credibility of the evidence presented by the parties’ witnesses and the probability of the parties’ respective versions.

55. I am also mindful of the charges brought against the applicant to which he had pleaded not guilty in his disciplinary hearing and of which he was only found guilty of on charge 1 and led to his dismissal, which are repeated here for ease of reference, translated from the Afrikaans:

CHARGE 1
It is alleged that you are guilty of misconduct in terms of section 18(1)(r) of the Employment of Educators Act, No 76 of 1998 (hereinafter referred to as the Act), in that you on/or about 28 November 2018, assaulted learner A, a Grade 7 learner connected to De Rust Primary School, by hitting him with a pipe.

CHARGE 2
It is alleged that you are guilty of misconduct in terms of section 18(1)(r) of the Act, in that you on/or about 28 November 2018, assaulted learner A, a Grade 7 learner connected to De Rust Primary School, by pushing him against the classroom desk with the result that he injured his testicle.

ALTERNATIVE TO CHARGE 2
It is alleged that you are guilty of misconduct in terms of section 18(1)(q) of the Act, in that you on/or about 28 November 2018, whilst you were on duty, conducted yourself in an improper, disgraceful or unacceptable manner by pushing Learner A, a Grade A learner connected to De Rust Primary School against the classroom desk with the result that he injured his testicle.

CHARGE 3
It is alleged that you are guilty of misconduct in terms of section 18(1)(q) of the Act, in that you on/or about 28 November 2018, whilst you were on duty, conducted yourself in an improper, disgraceful or unacceptable manner by instructing Learner B, a Grade 7 learner connected with De Rust Primary School to say that Learner A fell and had bumped against the desk in exchange for a R100.

56. The original charge sheet which was issued to the applicant with the notice of disciplinary hearing dated 4 March 2019, had similar wording, except for charge 1, which then read as follows (translated from the Afrikaans):

It is alleged that you are guilty of misconduct in terms of section 18(1)(r) of the Employment of Educators Act No 76 of 1998 (hereafter referred to as the Act), in that you on/or about 28 November 2018 assaulted Learner “A”, a Grade 7 learner connected to De Rust Primary School by hitting him with a pipe on his hand(s).

57. It is observed that in the amended charge sheet the wording of charge 3 (which the applicant was not found guilty of and is not in dispute at present) was also amended from the original charge, which read as follows:

CHARGE 3
It is alleged that you are guilty of misconduct in terms of section 18(1)(q) of the Act, in that you on/or about 28 November 2018, whilst you were on duty, conducted yourself in an improper, disgraceful or unacceptable manner by instructing Learner B, a Grade 7 learner connected with De Rust Primary School to say that Learner A fell and in the process had bumped against the desk in exchange for a R100.

58. Section 18(1)(r) of the Employment of Educators Act 76 of 1998 as amended (the EEA) referred to in the charges under Chapter 5 Incapacity and Misconduct relating to serious misconduct, reads as follows:

18. (1) Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she-
(r) assaults, or attempts to or threatens to assault, another employee or another person;

Section 18(1)(q) of the EEA continues as follows:
(q) while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner;

59. This dispute therefore turns around whether the applicant had, on the balance of probabilities, assaulted Learner A in or around 28 November 2018 by hitting him with a pipe as described in charge 1, the charge he was found guilty of in the disciplinary hearing and led to his dismissal, which is the evidence that will accordingly be focused on in determining this matter. Evidence was also presented during the arbitration surrounding charge 2, which the applicant was found not guilty of in the disciplinary proceedings, hence I will not revisit this again in my findings except to consider the impact of that evidence in the evaluation of the credibility and reliability of witnesses and the probabilities of the associated events.

60. It is unfortunate that this dispute had taken such a long time to reach its resolution since the incident occurred around 28 November 2018 and the finding of dismissal was confirmed by the MEC on 22 July 2019, with the inevitable challenges to witnesses’ recall of the detail that had transpired at the time of the alleged incident. This will be taken into consideration in the evaluation of their evidence.

61. In deciding this matter it is also necessary for me to address the unavoidable issue of credibility, since material factual disputes emerged during the arbitration.

In Marapula & Others v Consteen (Pty) Ltd [1999] 8 BLLR 829 (LC) at 837 C – F the Court said the following in relation to the evaluation of evidence and the discharge of the onus by an employer:

“The onus is on the employer to prove that the dismissal was fair (section 192 of the LRA) on a preponderance of probability. In my opinion, the onus is discharged if the employer can show, by credible evidence, that its version is the more probable and acceptable version. The credibility of witnesses and the probability or improbability of what they say should not be regarded as separate enquiries to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the employer’s version, an investigation where questions of demeanour and impression are measured against the content of the witnesses’ evidence, where the importance of any discrepancies or contradictions are assessed and where a particular story is tested against facts which cannot be disputed and against the inherent probabilities, so that at the end of the day one can say with conviction that one version is more probable and should be accepted, and that therefore the other version is false and may be rejected with safety.”

62. Assessing credibility is however not a matter of comparing the number of witnesses on one side with the number presenting an opposing version. I have to weigh up all the evidence in order to decide whether it was reliable or not and whether the truth was told, despite any shortcomings. In order to reach a just verdict based on the truth, I must be able to consider all the relevant admissible evidence. For this reason the basic principle in evaluating evidence is that evidence must be weighed in its totality. In this regard Navsa JA in S v Trainor 2003(1) SACR 35(SCA) at 41b-c said the following:
“A conspectus of all evidence is required. Evidence that is reliable should be weighed alongside such as may be found to be false. Independently verifiable evidence, if any, should be weighed to see if it supports any of the evidence tendered. In considering whether evidence is reliable, the quality of the evidence must of necessity be evaluated, as must corroborative evidence, if any. Evidence, of course; must be evaluated against the onus on any particular issue or in respect of the case in its entirety....”

63. When evaluating or assessing evidence, it is therefore imperative to evaluate all the evidence, and not to be selective in determining what evidence to consider. As Nugent J (as he then was) in S v Van der Meyden 1999 (1) SACR 447 (W) stated at 450:

“What must be borne in mind, however, is that the conclusion which is reached (whether it be to convict or to acquit) must account for all the evidence. Some of the evidence might be found to be false, some of it might be found to be unreliable, and some of it might be found to be only possibly false or unreliable, but none of it may simply be ignored.”

64. From the aforementioned it is therefore clear that the evidence must be assessed in its totality in order to arrive at a meaningful conclusion. Bearing the foregoing principles, opinions and cautions in mind, I will attempt to apply these principles, rules and guidelines to assess the evidence of the parties’ witnesses, as relevant to the main facts in dispute, without going into the detail of all the evidence of the parties’ witnesses as has been already set out in this award under the respondent’s and applicant’s evidence.

65. With respect to the evidence which was presented, the following was noted in summary from the testimony of those persons who were direct witnesses to what had allegedly transpired relating to the applicant hitting Learner A with a pipe, being the alleged victim Learner A, Learner B, the applicant and Learner C:

66. The respondent’s two key learner witnesses Learner A and Learner B both testified that the applicant hit Learner A with a pipe on that particular day, with Learner A’s testimony that the applicant hit him with a red pipe on the back of the hand when he came late into the classroom after the break and he had an argument with Learner D (who unfortunately did not testify in the arbitration) because Learner D disputed the reason that he gave for being late that he had been at the Principal’s office. In his cross-examination Learner A testified that he was hit by a black pipe, whereas he had stated that he was hit by a red pipe in his evidence in chief. Learner B testified that on the day the applicant was not in the classroom but in the office (presumably that of the Principal, which it is noted was not put to Mr Jones when he testified) and that they, including Learner A, were playing in the classroom with their friends and that when the applicant entered the classroom he hit them all with the red pipe and that he specifically hit Learner A three times on the arms, adding under re-examination that Learner A was also hit on the hand. Learner B testified further that Learner A bumped his testicles himself against the desk when he ran away after being hit and that the applicant did not hurt Learner A’s testicles. Learners A and B also testified that the applicant had hit learners with the pipe on previous occasions. Learner A testified too how he and Learner B had communicated in the classroom after Learner A’s testicles were injured, whilst Learner B testified that they did not talk in the classroom but only outside the classroom under the tree on that day about what had happened. Learner B’s testimony therefore substantially contradicted Learner A’s own testimony of the events on that day, save for them both stating that the applicant had previously hit learners with a pipe and the addition under re-examination by Learner B that Learner A was also hit on the hand.

67. Both the applicant and Learner C testified that Learner B was not present in the classroom at the time of the alleged incident and was outside, which is highly probable, since Learner B’s version in the arbitration differed substantially from that of Learner A. It is noted that this version that he was not present in the classroom to witness what happened in the classroom was not put to Learner B as pointed out by the respondent in argument. This may not have made a material difference to the evidence presented by Learner B, and the probabilities remain that Learner B was not present to witness the alleged incident and his evidence therefore requires to be approached with caution.

68. The applicant in turn denied having hit Learner A with the pipe, which pipe he admitted he had in his hand and used to point out the instructions on the board for the three questions which were omitted in the English exam paper that the learners were writing that day. During the in loco inspection he also stated that he held a red pipe in his hand at the board. He however did not have the pipe anywhere near Learner A, and he had put the pipe down on his desk when he was close to Learner A and took the exam paper and pen to him. He further testified that Learner B, who had stated that he was present and witnessed the incident, could not have seen the alleged incident since he was outside the classroom at the time and only entered with two other learners when Learner A left the classroom without permission. This was corroborated by Learner C, who testified for the applicant, and stated that the applicant did not hit Learner A as alleged and that Learner B was not in the classroom at the time and could not have witnessed what had allegedly happened.

69. It was difficult to establish commonalities and probabilities due to the volume of evidence that was presented in this lengthy arbitration and to assess the credibility of in particular the child witnesses. As an example, Learner A confessed he was forgetful (which was confirmed by his mother Ms X when she testified) and could not remember everything that happened, bearing in mind it was quite some time ago since the incident in November 2018.

70. Learner A had further testified in his version that he was at the Principal’s office twice that day, the first time before the incident in the applicant’s classroom when he was was called to the Principal’s office to discuss another incident and the second time after he left the classroom when he in his version reported to the Principal that the applicant had injured his testicle and hit him on the hand. Mr Jones, the Principal, however testified that Learner A only came to his office once later in the day when Learner A indicated discomfort in his private parts and had stated that he had finished writing his exam. Learner A did not complain to him about being hit on the hand nor showed any marks to him where he had been hit. This could also probably be the reason why Learner D accused Learner A of lying when he explained that he was late in class after the break because he was at the Principal’s office, which the Principal confirmed he was not there at that time, but only later at around 12h00 on that day.

71. In the face of two opposing versions I have considered the relevant factors such as reliability and credibility of the witnesses, the probabilities of either version and considered the arguments presented, as well as the inconsistencies pointed out by both parties.

72. It is unfortunate that other witnesses either present inside or outside the classroom that day on 28 November 2018 could not testify to corroborate the respective versions, in particular Learner D who accused Learner A of lying about his whereabouts when he entered the classroom and who Learner A had testified saw the applicant hit him, as well as Mark the School Security Guard whom Learner A testified he told that the applicant had hurt his testicles and who had also told the applicant that Learner A was seen to be walking strangely already before the alleged incident in the classroom, as well as Learner A’s cousin who Learner A testified was the only person whom he afterwards showed the mark on his hand where he was allegedly hit by the applicant.

73. The in loco inspection content was by and large consistent with the versions that Learner A and the applicant presented individually during the arbitration.

74. The applicant remained unwaivering in his evidence and version during both his evidence in chief and under cross-examination, despite some minor inconsistencies that could be attributed to the effluxion of time and misunderstandings surrounding what had transpired, and that it never happened as was alleged and what he was charged for. He acknowledged his past two transgressions, of which a plea bargain and fine for R3000.00 with a final written warning valid for 6 months was concluded on 13 November 2018 for the last one, and showed remorse for those transgressions, presenting himself as genuinely contrite and one who was deeply concerned to regain his career and reputation. It is also questioned how the applicant would have reasonably risked another transgression so soon after a plea bargain with the above conditions was concluded on 13 November 2018 about 15 days before the alleged incident(s) on 28 November 2018.

FINDING

75. I have considered all the evidence and argument, but because section 138(7) of the LRA requires brief reasons, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute, with such findings made on the balance of probabilities. The following is accordingly found, on the balance of probabilities and in the circumstances of this case.

76. I am fully aware that the onus of proof is on the respondent in this matter, whom I do not believe on this occasion has been able to fully discharge the onus of proof as required, for the main reasons as provided below.

77. Firstly, with respect to procedural fairness, it would have assisted if Ms Mortlock had confirmed that Mr Brinkhuis, the applicant’s SADTU representative, had received the changed charge, given that she had acknowledged in her evidence that Mr Brinkhuis had informed during the hearing that he experienced problems with his e-mails. Also, it would have assisted if she at the commencement of the disciplinary hearing had ensured that the applicant and the Presiding Officer were aware of the amended charge, since the onus is on the respondent in this regard to make sure that the other party is fully aware of the charges that have to be responded to. Ms Mortlock had under cross-examination explained that the change was brought about because some of the learner witnesses whom they wanted to call to testify in the applicant’s disciplinary hearing could only say that Learner A was hit with a pipe (and not on the hands as well), of which Learner B was one. Although, as in Mr Gunther’s view, the change in wording would not have detracted from the main offence of alleged assault, there were indeed factual changes as contended by the applicant that could have influenced their preparation for the hearing and the evidence that was to be led.

78. In this regard I refer to Item 4 Fair Procedure of the Code of Good Practice: Dismissal of Schedule 8 of the LRA (the Code) which contains the basic elements of a fair procedure as set out as follows in sub-item 4(1):

Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and do the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision
taken, and preferably furnish the employee with written notification of that decision.
.
79. This prescript implies that an employer should notify the accused employee of the allegations prior to any formal disciplinary process in order to state a case in response to the allegations. It also implies, although not explicity stated in the Code, that any changes to the allegations should also be provided beforehand to allow the accused employee the opportunity to state a case in response to the allegations, not on the day of the hearing, but prior to the hearing. In the respondent’s version they had informed the applicant’s SADTU representative of the amendment to charge 1 prior to the hearing, and had assumed, but had not confirmed, receipt thereof.

80. With respect to the allegation that the Social Worker Ms Lindeque had lodged the complaint against the applicant, which would have compromised her role as merely being a support for the affected learners, the evidence of Mr Jones and the form 22 contained in the documents confirmed that the Principal Mr Jones and not Ms Lindeque had referred the matter to the respondent. I furthermore do not find, based on the evidence presented in the arbitration, that Ms Lindeque had acted in an irregular or untoward manner in her role prior to and during the applicant’s disciplinary hearing to the extent that it would have influenced the evidence of the child witnesses and the outcome of the hearing.

81. In the circumstances I have to find that the respondent had been unable to discharge the onus to prove that procedural fairness had been complied with, but only with respect to the amendment in the charge(s) that the applicant was required to respond to, and find that the applicant’s dismissal was procedurally unfair on these grounds.

82. With respect to substantive fairness, the following findings are made: If it was the case, as in both Learner A’s and Learner B’s versions, that the applicant had previously hit learners with a pipe (of whatever colour), as well as on the day in question, it is puzzling why this was not reported by these learners to their parents, the Principal or other educators and that complaints were lodged against the applicant previously, since the learners would have been aware that corporal punishment such as hitting a learner is not allowed in schools.

83. It also appeared from the peripheral evidence that the action against the applicant was triggered by the injury to Learner A’s testicles, which the applicant contended he was not responsible for and he was found not guilty of in the subsequent disciplinary proceedings.

84. With respect to the instruments in contention of the pipes, both the applicant and the learner witnesses confirmed that there was a red and black pipe in the classroom. The learner witnesses testified that they had got rid of the red pipe and that the red pipe hit harder than the black pipe. It was noted that Learner A changed his evidence from being hit by the red pipe to the black pipe and that even the applicant became confused about the colour of the pipe that he used to demonstrate on the board, of which the colour of the pipe is not viewed as the determining factor to decide whether the alleged deed of hitting had been committed or not. The applicant also testified that there were several pipes in the classroom, but did not explain their use apart from him testifying that he used a pipe to point on the board that day.

85. Learner C, the witness for the applicant, had conceded under cross-examination that he may have stated in the applicant’s disciplinary hearing that the applicant had tapped Learner A lightly on the shoulder with a pipe, and changed this version at the arbitration that the applicant never did this at all. The minutes of the applicant’s disciplinary hearing were not presented by the parties at the arbitration, with only the recording clip played to confirm that Ms Mortlock read out the charges at the hearing, hence this could not be verified.

86. It was noted that no mention was made of the applicant allegedly hitting Learner A in the statement Learner A made to the SAPS, which only included the alleged pushing and injury to his testicle, neither had the School Principal in his evidence stated that the applicant on the day in question had reported to him that the applicant had hit him.

87. Learner A’s mother when she testified to how Learner A appeared and what he reported to her when he returned from school on 28 November 2018 did not make any mention of him being hit on the hand, but only the injury to his testicle. Learner A as the prime victim or witness for the respondent also appeared to be a reluctant participant in the arbitration proceedings, who admitted he was forgetful and was unable to remember much. His description of what transpired after the applicant allegedly injured his testicle by pushing him against the desk, was also inconsistent with how a boy or man would respond to such an injury, as pointed out by the applicant in argument.

88. The respondent’s key direct witnesses to the incident were Learners A and B. It is found that, based on the evidence presented, that it is highly improbable that Learner B was present when the alleged incident occurred and was therefore unable to corroborate the evidence of Learner A, with both their credibility with respect to what had transpired placed in questioned.

89. The applicant and his witness Learner C are on balance found to be the more credible and reliable witnesses, with their versions more probable than those of Learners A and B, as already referred to in the summary of their evidence.

90. The Form 22 completed by the School Principal on 5 December 2018 provided very sparse information about the alleged abuse against Learner A, except that it was physical with no indicators checked or medical intervention indicated and that a case was opened against the alleged abuser with the SAPS De Rust under case number 15/12/2018.

91. I am fully aware of the prescripts and legislation surrounding the best interests of the child and in particular the role and responsibility of educators in this regard and that corporal (bodily) punishment for an offence committed by a learner may not be administered at schools, and also what constitutes assault in the general meaning. Even if it was found, for example, that the applicant had indeed tapped Learner A lightly on the shoulder as it was alleged Learner C had originally stated in the applicant’s disciplinary hearing (of which the documentary evidence was not provided), it would be difficult for this to fall under the understanding of corporal punishment and/or or assault since that would not constitute “assault” as defined in The Concise Oxford Dictionary, Eighth Edition which inter alia describes “assault” as follows: a violent physical or verbal attack; in law an act that threatens physical harm to a person (whether or not actual harm is done). This implies that an element of actual or threatened physical harm should be present in the action perpetrated. To this could also be added emotional harm and distress. The evidence was that Learner A had indeed suffered emotional and physical distress, which was caused by the unfortunate injury to his testicle which the applicant was found not guilty of, and not because he was allegedly hit with a pipe by the applicant.

92. In the circumstances I find that the applicant was, on the balance of probabilities, not guilty of the charge of allegedly hitting (assaulting) Learner A with a pipe and find his dismissal unfair on substantive grounds.

93. I am accordingly satisfied that the respondent was unable to sufficiently discharge the onus, on the balance of probabilities, to prove that the applicant’s dismissal was fair on both procedural and substantive grounds, for the reasons cited.

RELIEF

94. The relief sought by the applicant was reinstatement into his previous position of Head of Department at De Rust Primary School or another school in the same area, with retrospective compensation (back pay) from the date of dismissal.

95. Section 193(1) of the LRA relating to remedies for unfair dismissals and unfair labour practices provides as follows:
(1) If the Labour Court or an arbitrator appointed in terms of this Act finds that a dismissal is unfair, the Court or the arbitrator may-
(a) order the employer to reinstate the employee from any date not earlier than the date of dismissal;
(b) order the employer to re-employ the employee, either in the work in which the employee was employed before the dismissal or in other reasonably suitable work on any terms and from any date not earlier than the date of dismissal; or
(c) order the employer to pay compensation to the employee.

96. Section 193(2) of the LRA provides further as follows:
(2) The Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless –
(a) the employee does not wish to be reinstated or re-employed;
(b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;
(c) it is not reasonably practicable for the employer to reinstate or re-employ the employee; or
(d) the dismissal is unfair only because the employer did not follow a fair procedure.

97. No evidence was presented in the arbitration that the continued employment relationship would be intolerable if reinstatement or re-employment was granted as relief, neither that reinstatement or re-employment would be impracticable. The relief sought of reinstatement will accordingly be granted, effective from the date of dismissal and preferably at the same school of De Rust Primary School since it did not appear from the evidence of the School Principal that the relationship with the applicant had been irrevocably tarnished. Learner A in his evidence had conceded as well that the applicant was a good teacher.

98. The applicant also presented as a responsible educator who was more concerned that all the learners should be present to complete their final English examination on that day, with the evidence supported that the other learners were not disadvantaged during the exam because he sent two of his reliable learners to Mr Damon and Mark the Security Guard to help locate the absent learners. His standard of work as he testified to was also not challenged in the proceedings and he presented as being genuinely contrite about the two previous transgressions for which plea bargains were concluded.

99. With respect to retrospective compensation, Court judgments have supported that limits on compensation as prescribed in section 194 of the LRA do not apply when retrospective compensation or back pay is awarded when an order of reinstatement is made for an employee who is found to have been unfairly dismissed. In the Labour Court judgment between Fermel (Pty) Ltd and the CCMA and Others under case no JR 2545/14 delivered on 4 April 2019 Damant AJ cited case law that guided on how retrospective compensation should be applied when reinstatement with retrospective compensation or back pay is ordered, as well as the extent of such retrospectivity, with specific reference to the Constitutional Court matter of Equity Aviation Services (Pty) Ltd v CCMA and Others (2009) (1) SA 390 (CC) and other decided cases on this subject, which inter alia required a commissioner to exercise a reasonable discretion in awarding back pay, that an employee should be put back into the position that the employee would have been in if he/she remainded employed, that the employee was able to tender his/her services for the period concerned and with the following proviso added from Zondo J in Toyota SA Motors (Pty) Ltd v CCMA and Others (2016) 37 ILJ 313 (CC), who stated as follows:
“A reinstatement order is not intended to put the employee in a position in which he would not have been had he not been dismissed. That means neither a less disadvantageous position nor a more advantageous position than the one in which he was or would have been in had he not been dismissed.”

99. With respect to exercising my discretion on the amount of retrospective compensation or back pay to be granted, the following has been taken into account:

• The time that had elapsed since the applicant’s dismissal was confirmed on 22 July 2019.
• That it was common cause that the applicant was paid up till 31 July 2019.
• That the dispute referral was received by the ELRC on 20 August 2019 and was referred to arbitration on 30 September 2019 to the ELRC after being declared unresolved on 26 September 2019.
• That the matter was first set down for arbitration by the ELRC commencing 27 January 2021, with this delay not attributable to the parties.
• That in normal circumstances the arbitration would have been concluded before the COVID-19 lockdown restrictions were introduced commencing 27 March 2020.
• The intervening COVID-19 lock down restrictions during 2020, which in particular affected the Education sector during which educators were unable to render services for a certain period.
• That no evidence was presented that the applicant had obtained alternative employment and income since his dismissal, and was therefore available to tender services to the respondent during this period.
• It was common cause that the applicant earned R31277.22 per month at the time of his dismissal on 22 July 2019 in the position of Post Level 2 Head of Department and that he was paid up till 31 July 2019.

100. Given the foregoing considerations, I exercise the discretion to grant retrospective back pay in the amount of 8 months’ earnings that applied at the time of his dismissal to the applicant.

AWARD

101. The dismissal of the applicant, Mr A L Damons, by the respondent, the Department of Education- Western Cape, is found to be unfair on both procedural and substantive grounds.

102. The respondent, the Department of Education-Western Cape is ordered to reinstate the applicant, Mr A L Damons, on terms and conditions not less favourable to him than those that governed the employment relationship prior to his dismissal as Head of Department at De Rust Primary School on 22 July 2019, with this reinstatement effective from 1 August 2019.

103. The applicant is to tender his services to the respondent not later than 1 August 2021 at either De Rust Primary School or any other suitable school in the district as assigned by the respondent.

104. The respondent is ordered to pay the applicant back pay in the amount of R250217.76, being 8 months’ remuneration at R31277.22 per month, less any statutory deductions if applicable, not later than 31 July 2021.

105. No order as to costs is made.


Panelist: A C E Reynolds (Ms)

ELRC 302 -20 /21 NW