PSES115-18/19WC
Text
ELRC436 - 21/22EC
Award Date:
30 April 2022
Case: ELRC436 - 21/22EC
Date of Award: 30 April 2022
Panelist : Vuyiso Ngcengeni
Province : Eastern Cape
Employee : NAPTOSA obo Fundiswa Patience Mbulane
Employer : Department of Education – KwaZulu Natal
Issue : Alleged Unfair Dismissal
Venue : Virtual
Employee representative : Mr Anton Adams
Email address : antona@naptosa.org.za
Employee Representative : Mr Xolani Sam
Email address : xolani.sam@ecdoe.gov.za
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter was scheduled before me on 15th November 2021, 28th and 29th March 2022 in a virtual platform. The matter was held under auspices of the Education Labour Relations Council (the Council) in terms of Section 191(5)(a) of the Labour Relations Act of 1996 as amended (LRA).
2. The Employee was present and she was represented by Mr Anton Adams from NAPTOSA and the Employer was represented by Mr Xolani Sam. The hearing was conducted in English.
3. The Employee submitted one bundle which is made of 18 pages that include the referral documents and the charge sheet preferred to the Employee. I received all the closing arguments on 7th April 2022.
ISSUE TO BE DETERMINED
4. I am called upon to determine whether the dismissal of the Employee by the Employer was procedurally and substantively fair. She was found guilty in an disciplinary hearing on two charges and her challenge is based on the following-
4.1 Procedure:
- The Employer failed to follow the procedure laid down by the Employment of Educators Act No. 76 of 1998 as amended (EEA), when substituting the sanction from a disciplinary hearing, which was R 6000 and counselling by that of dismissal without affording her the opportunity to make representation.
- The Employer incorrectly charged the Employee with breach of section 17 of the EEA, whilst the person she is accused of shoving and strangling is not employed by the Employer, therefore section 18 should have been used.
- The Employer unreasonably delayed in preferring the charges, which is inconsistent with the requirements of both Schedule 2 of EEA and Schedule 8 of the LRA.
4.2 Substance:
- She denies the charges
5. She seeks reinstatement as a relief.
BACKGROUND TO THE DISPUTE
6. The Employee was employed as the educator and occupied a post of Head of Department (HOD) at Ekuphumleni High School (the school).
7. She was dismissed on 26th August 2021 and at the time of her dismissal, she had been an Educator for about 30 years. She had a clean record.
8. She referred a dispute of unfair dismissal to the Council on 3rd September 2021. A certificate of non-resolution was issued on 22nd September 2021 and the Employee referred the matter for arbitration on 11th October 2021.
9. The Employee was charged with six charges and was found guilty of two of the charges and those are:
(1) It is alleged that you are guilty of misconduct in terms of Section 17(1)(d) of the Employment of Educators Act, 1998 as amended (EEA) which inter alia reads as follows:
“An educator must be dismissed if her she is found guilty of - seriously assaulting with the intention to cause grievous bodily harm to a learner, student or other employee”, in that while on duty at Ekuphumleni High School on or around 16 May 2018 you shoved and strangled Ms Thandeka Sinkwana who is working as a meal servicer at Ekuphumleni High School, as a result of your actions, Ms Sinkwana’s neck was left with scars.
(5) It is alleged that you are guilty of misconduct in terms of Section 17(1)(d) of the Employment of Educators Act, 1998 as amended (EEA) which inter alia reads as follows:
“An educator commits misconduct if he or she displays disrespect towards others in the workplace or demonstrates abusive or insolent behaviour” in that, on 26 April 2019 in a meeting at Ekuphumleni High School, you pointed a finger on both the Principal and the Deputy Principal, disregarding their authority in so doing.
10. One charge, which was listed as number six in the charge sheet was withdrawn during the disciplinary hearing, as the witness to that charge was in hospital and thus not available to testify.
11. After being found guilty of the two charges, the chairperson of the disciplinary hearing imposed the sanction of R6000 and counselling, however, the Employee was not satisfied with this outcome and she launched an appeal to the Member of the Executive Council (MEC).
12. The Employer also cross appealed against the sanction, calling it too lenient and not consistent with the provisions of the EEA when one is found guilty of such a section.
13. The MEC substituted the sanction of R6000 and counselling, with that of dismissal.
SURVEY OF EVIDENCE AND SUBMISSIONS
Employer’s case
Ms Thandeka Sinkwana testified on behalf of the Employer under oath as follows:-
14. She was employed on a Fixed Term Contract in March 2018 as a meal server at the School and as meal servers, they reported to the Employee. Her duty was to cook and serve the learners at the school.
15. On a Friday, 13th May 2018, as they preparing food, the realised that there was not enough vegetables. She approached the Employee and alerted her to the shortages and the Employee told her that they needed to dish out food such that not all vegetables are contained in all the dishes. The Employee gave the same instruction to all the meal servers.
16. It so happened that they did not follow the instruction and she reported such to the Employee. The Employee reprimanded her and she complained and enquired as to why the Employee was only reprimanding her, when she was not the only one responsible for executing the instruction. The Employee told her that if she did not want to work, she must sit down.
17. She was touched by such a response and as she closed the pot, the lid went hard on the pot. She told the Employee that she was going to report the incident as she did not appreciate how she (Employee) talked to her. She went to Mdlangu, the Deputy Principal and reported the incident.
18. The next Monday, 16th May 2018, she went to Mdlangu to talk about taking leave in the following day. Whilst in the office, the Employee came in and said “here is this shit” and pushed her towards the door, trying to push her out of the office. The Employee then charged at her and grabbed her on her neck. They then fought and the Employee strangled her such that she had scratches.
19. She retaliated against the Employee by pushing her away and in that process, the Employee’s glasses and one nose ring fell down. Mdlangu separated them. After that, the Employee told her to go to school as she could see that she was illiterate.
20. Cross examination – She was paid by a cheque through the school’s clerk and was not getting a payslip from the Employer. She did not feel anything serious and painful after the incident, hence she did not visit either the clinic or the police station.
Mr Mdlangu (Mdlangu) testified under oath as follows:-
21. He was the Deputy Principal at the school at the time of the incident. Following the incident of food which was reported to him by Sinkwana, he called the Employee into his office and informed her about the incident.
22. On Monday 16th May, whilst Sinkwana was in his office, the Employee as she entered the office, banged the door open and said to him “here is this shit.” The Employee then grabbed Sinkwana and in the process her nose ring fell down. He intervened and told them that that was the workplace. They continued exchanging words and the Employee referred to Sinkwana as low class.
23. In another incident on 18th April 2019, the Employee, in front of the learners pointed a finger at Ms Mbelekane (also an Educator) and told her she was not afraid of her and she later apologised. Mbelekane did not accept her apology and he related such to the Employee. In a SMT meeting held to try and resolve the impulse, the Employee pointed a finger at him and said he you should stop writing her name in his book (incident book).
24. He recorded the incident in the incident book and the Employee took the incident book and threatened to tear out the page. She then said she was going to make copies. The incident register was a confidential document that contained other employee names and incidents reported to his office.
25. When he took notes of the incident, the Employee was about 1,5 meters away from him, but he could not anticipate that the book was to be grabbed from his hands by the Employee.
26. In one incident when the learners were writing test outside the office, and they as the SMT were in a meeting, the Employee wanted to leave the meeting and was asking for Mbelekane. She looked at the principal and said “you, you must protect me”.
27. The Employee also pointed a finger at him and said “you, refrain from writing my name in your books”. She also spilt water onto the floor.
28. They as members of the SMT, were very worried as they had never seen her in such a state before. One of the SMT members then asked Mbelekane to leave the school as they were afraid that the Employee might hurt her.
29. His dignity was impaired at being pointed at by a finger and the and threats were made in the presence of both the principal and SMT.
30. They could not resolve the issue between the Employee and Mbelekane because the Employee prevented them from doing so.
31. Cross examination - He did not call the Employee into his office, she just barged in and slammed the door and referred to Sinkwana as a shit. He could not recall the date of the incident. The incident was short lived as he managed to separate them. The Employee tried to hit Sinkwana with the door. There were no visible injuries on both Sinkwana and the Employee.
32. He reported the incident to the principal and also called the Employee to his office and asked her to go and make peace with Sinkwana. No medical certificate or J88 was submitted by Sinkwana nor did she take any sick leave.
33. He did not resist when incident book was taken by the Employee. He admitted that the book was not forcefully removed from his hands.
34. The Employee was a good educator, very knowledgeable about her field and her results were always great. He acknowledged that the Employee had behavioural problems but was never disciplined by or referred to health and wellness.
Mrs Fezeka Samuel (Samuel) testified under oath as follows:-
35. She is employed as the Educator at the school and has been at the school since August 2016.
36. On 1st April 2017, it was a public holiday and shad a grade 12 class. When she was going into the class and whilst on the veranda, the Employee bumped her on her head and she (Employee) told her that that was the test.
37. She does not know why the Employee bumped her, but in 2016 when they went for a music competition in Queenstown, she was asked to assist on handling food. It so happened that the Employee did not eat with the rest of the educators, and she (Employee) said to her “you skinny lady wants to do things your own way but you are new at the school”. So she thinks the incident of the Employee bumping her was as a result of the incident of the food.
38. On the following day, the 30th September 2016, whilst she was waiting for Mdlangu to report the incident, the Employee came and said to her “you sheet, you bumped me yesterday and you will never do that again. I have heard that you have a knife and I will shoot you”.
39. She was very hurt and she took her car and left the school. After reporting the matter to the Principal, the Employee apologised to her, but after her apology, she continued with her behaviour.
40. Cross examination – The Employee body-shamed her and bumped her. It was not on 7th April 2019, it was on 7th April 2017. Although the charge sheet says it was 7th April 2017, she knows nothing about that date and that is a typing error. The day falls on a Sunday and she does not go to school on a Sunday.
41. She denies that she was the one who bumped the Employee. It is not true to say she had a bad relationship with the Employee. She did not notice the Employee until the bumping incident, as there are many educators at the school.
42. She does not think she has a problem with the Employee and if that was the case, then she must have followed the Employee’s behaviour towards her.
Ms Linda Mbelekani (Mbelekani) testified under oath as follows:-
43. She is one of the Heads of Departments at the school. On 10th April 2019 whilst the late principal was briefing them about the events of the day, she was sitting down and as she stood up and readying herself to walk, the Employee hit hear on her shoulder, saying she had bumped her (Employee), which was not true.
44. She went to her class and afterwards, she felt pain on her shoulder and went to report the incident to the Mdlangu, who told her that he was also afraid of the Employee. She reported the incident to the Employer’s Labour Relations and the Employee apologised.
45. About a month later, the Employee called her a liar, grabbed the incident book from Mdlangu and went out to make copies, saying they wrote rubbish about her.
46. After that incident, another one happened when she was walking towards the HOD’s room, and the Employee was walking out. She tried to move away from the Employee, but the Employee moved towards her and bumped her, such that she almost fell down and was saved by the pillar. She is not aware why did the Employee do that.
47. The Employee’s behaviour affected her a lot and she ended up being hospitalised. Even after her (Employee) apology, her (Employee) behaviour towards her did not change.
48. Cross examination – She has evidence that the Employee was behind her health status because her Doctor told her she has psychiatric problems. She denied that they, as the educators were ganging up against the Employee and there was no conspiracy against her.
49. The bumping incident was not an accident, the Employee did it deliberately as instead of walking straight to the class room, she changed direction and walked towards her. She does not agree that they bumped into each other, the Employee bumped her. She agrees that by apologising, the matter was therefore closed.
50. Arguments - on whether the department should have used Schedule 2 of Disciplinary Code and procedure for EEA as Sinkwana was employed by the SGB, therefore section 17(1)(d) of EEA should have not been used to charge the Employee, and that section 18 should have been used instead. It should be noted that this line of argument was never raised in a disciplinary hearing by the Employee.
51. The relevance and irrelevance of section 17 is neither here nor there for the determination of an appropriate sanction. An educator can be dismissed even if s/he charged under section 18 of EEA, if found guilty depending on the gravity of transgression one has committed. Section 17(1)(d) states that an educator must be dismissed if s/he found guilty of – seriously assaulting with the intention to cause grievous bodily harm to a learner, student or other employee.
52. Our labour legislation defines an employee in a rather wide context. In terms of section 213 of the Labour Relations Act (LRA) (this definition is the same under the Basic Conditions of Employment Act, (BCEA) defines an employee as follows:
“(a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and (b) any other person who in any manner assists in carrying on or conducting the business of an employer.”
53. As highlighted above, the definition is fairly wide and perhaps aimed at optimal coverage to individuals under arrangements analogous to an employment relationship but it explicitly excludes an independent contractor.
54. The Labour Appeal Court in McKenzie accordingly provided such crucial guidance in discerning the elements of an employment relationship (contract of service) in contrast to an independent contract (contract of work).
55. In addition, the Code of Good Practice: Who is an Employee? (Published under General Notice 1774 in Government Gazette No. 29445 dated 1 December 2006) provides material guidelines on what constitutes an employee.
56. Importantly, section 200A of the LRA and section 83A of the BCEA, applying mutatis mutandis, creates a statutory rebuttable presumption for those employees earning the equivalent or less than the prescribed threshold (presently prescribed at R 205 433.30) as determined by the Minister of Labour. Accordingly, if one or more of the following seven factors are present, such a person will be deemed an employee. Section 200A of the LRA and section 83A of the BCEA both read as follows:
“(1) Until the contrary is proved, a person who works for, or renders services to, any other person, is presumed, regardless of the form of the contract (emphasis added), to be an employee if any one or more of the following factors are present:
- the manner in which the person works is subject to the control or direction of another person;
- the person’s hours of work are subject to the control or direction of another person;
- in the case of a person who works for an organisation, the person forms part of that organisation;
- the person has worked out for that person for an average of at least 40 hours per month over the last three months;
- the person is economically dependent on the other person for whom he or she works or renders services;
- the person is provided with tools of trade or work equipment by the other person; or
- the person only works for or renders services to one person.”
57. Following the above provisions, our labour legislation presumes that a person is an employee notwithstanding what a contract may be called or the form it takes. The law effectively looks at the substance of the relationship/agreement.
58. It should be noted that when one looks at the above factors to determine whether Sinkwana was an employee you will find more than 3 factors:
- she was contracted to be a meal server at Ekuphumleni S.S.S .
- she was working under the direction of her employer /supervisor which was the Employee in this case.
- she was provided with tools of trade by the school.
- her working ours were regulated by the school.
59. Our argument as employer chair was that the Department of education deposit money to the school account in order for the school to make salary payment of Sinkwana. Furthermore, the school is part of the Department of Education and the principal as an accounting officer in the school represents the Head of Department. Therefore Sinkwana who was contracted by the department is considered as employee.
60. S17 makes dismissal for transgressing any of the misconduct cases listed therein compulsory. This is so because of the use of the term “must” in its opening sentence. The presiding officer in the disciplinary hearing erred on the legal implications of s17 of EEA and he assumed discretion he does not have, as s17 is clear that an educator who is found guilty must be dismissed.
61. The presiding officer after having found the Employee guilty on that charge, dismissal was an appropriate sanction hence as Employer we had submitted counter appeal to the office of the MEC on the bases that the presiding officer by assuming discretion he doesn’t have had failed to apply his mind on evidence lead before him by failing to find the Employee guilty on other charges levelled against her.
The Employee’s case
The Employee testified under oath as follows-
62. At the time of her dismissal, she had been an educator for 29 years, until the charges that led to her dismissal, she had never been charged before, not even called into a counselling by anyone.
63. She was the supervisor for the meal servers and there were about six of them. She had been in the nutrition service since it started. The meal servers are employed by the SGB and they are paid by the SGB, not the Employer.
64. On a Friday in May, she requested Sinkwana to include vegetables when they dish out food to the learners, and she later found out that Sinkwana did not follow her instructions. She then asked Sinkwana why she did not follow her instructions, Sinkwana became angry and she (Employee) then left.
65. Shortly thereafter, she found Sinkwana in Mdlangu’s office and said “here is the person who is alleged to be stealing food from the school”. Sinkwana grabbed her and tried to strangle her. She (Sinkwana) grabbed her so tight such that she was scared, her nose ring and spectacles fell down.
66. It is not true that she tried to bang the door onto Sinkwana. When she entered the office, the door was closed, she opened it and then closed it.
67. There were no scratch marks on both of them.
68. She never grabbed the incident book from Mdlangu, she asked for it and he gave it to her. She went to make copies just for in case anyone laid charged against her, she could have some documentary evidence. She did not remove the book from the premises, she made copies within the school premises. As she took the book, Mdlangu never resisted.
69. It was never her intention to threaten Mdlangu and the principal. She felt threatened, may be because she felt that everyone was ganging up against her and that became more prominent when issues that happened in 2017 were being brought back.
70. She was never at school on 7th April 2019.
71. She never bumped Mbelekane, she quickly went to the HODs office and when she was rushing back, she saw Mbelekane walking towards the office, she tried to move to the right hand side to avoid her, Mbelekane did the same, she walked to the left hand side, Mbelekane did so as well, and such a small dance led to them bumping on each other. They both apologised to each and the matter ended there.
72. Cross examination – She gave the instruction regarding the serving of meals to Sinkwana only, because Sinkwana was the only one who normally came to her for any enquiries and she was always willing to work.
73. Whilst in Mdlangu’s office, the allegations she made about Sinkwana being the one who stole food were based on what she was told by some meal servers. She had reported the allegations to Mdlangu and even on that specific day, she was there to report it.
74. She was called to the office by Mdlangu and at the time, she did not know that Sinkwana was also in the office.
75. There were no scratch marks on both of them. There is no way Sinkwana would have had scratch marks, she did not even ask for leave. She did not examine Sinkwana, but she did not see any scratch marks. She disputes that she would not know whether Sinkwana had scratch marks or not.
76. She did not grab the book from Mdlangu, she asked for it and he gave it to her. She does not recall him saying that the book was confidential and she was not allowed to make copies for herself.
77. She disputes that she was not allowed to make copies from the incident book. She did not see what was written about other educators in the book, as her interest was only on her name.
78. She does not know anything about her having referred to Samuel as a loose girl, she was not at school on 7th April 2019. She does not agree that 2019 in the charge sheet was written by error, especially on such serious issues.
79. On 10th April 2019, Mbelekane is the one who bumped her when they were being addressed by the late principal. She then touched Mbelekane on her shoulder, alerted her to the fact that she bumped her. She was friends with Mbelekane and she did not know that she was hurt by her touch.
80. At the school, as females, they shook hands and touched each other on a regular basis and they are allowed to do that.
81. Arguments - The Employee was charged in terms of the EEA of which Schedule 2 provides that, ‘The principles underlying the Code and Procedures and any decision to discipline an educator are that –
(a) discipline is a corrective and not a punitive measure.
(b) discipline must be applied in a prompt, fair, consistent, and just manner.
82. The LRA provides for the speedy resolution of disputes in the workplace, and it must be concluded in the shortest time frame. The Constitutional Court in Stokwe v Member of the Executive Council: Department of Education, Eastern Cape and Others, (CCT33/18) [2019] ZACC 3; at para 71 in expounding the question of the delay in an internal disciplinary hearing provided these salutary paragraphs:
83. This also accords with the general principles of how delay impacts the fairness of disciplinary proceedings. The question of whether a delay in finalisation of disciplinary proceedings is unacceptable is a matter that can be determined on a case-by-case basis. There can be no hard and fast rules. Whether the delay would impact negatively on the fairness of disciplinary proceedings would thus depend on the facts of each case (Gcaba v Minister for Safety and Security and Others 2010 (1) SA 238 (CC);
84. And the Court further held that,
‘The requirement of promptness not only extends to the institution of disciplinary proceedings, but also to their expeditious completion. If an employee is retained in employment for an extended period after the institution of disciplinary action, it may indicate that the employment relationship has not broken down. An appeal procedure is a separate facet of the disciplinary procedure and must be conducted with the same degree of alacrity for procedural fairness to be fulfilled.’
The Labour Court, regarding the assessment of delay held that:
The delay must be unreasonable. In this context, firstly, the length of the delay is important. The longer the delay, the more likely it is that it would be unreasonable.
(a) The explanation for the delay must be considered. In this respect, the employer must provide an explanation that can reasonably serve to excuse the delay. A delay that is inexcusable would normally lead to a conclusion of unreasonableness.
85. The delay in disciplining the Employee for alleged transgressions in 2017, 2018 and 2019 goes against the principles set out in schedule 2 of the EEA.
86. The Employer did not present evidence in respect of the causes for the delay in charging the Employee in 2021 for alleged offences that occurred in 2017, despite the provisions of the LRA providing for the speedy resolution of disputes.
87. Schedule 2 provides that: ‘9.
Appeals. –
(1) An educator or an employer may appeal against a finding or sanction by making an application in accordance with Form E attached to this Schedule.
[Sub-item (1) substituted by s. 6 of Act No. 1 of 2004.]
(2) The educator or the employer must, within five working days of receiving notice of the final outcome of a disciplinary hearing, submit the appeal form to the Member of the Executive Council or the Minister, as the case may be.
[Sub-item (2) substituted by s. 6 of Act No. 1 of 2004.]
(3) On receipt of the application referred to in sub item (1), the Member of the Executive Council or the Minister, as the case may be, must request the employer to provide him or her with a copy of the record of the proceedings and any other relevant documentation.
(4) If the Member of the Executive Council or the Minister, as the case may be, chooses to allow further representations by the educator, or his or her representative or an employer, he or she must notify the educator or employer respectively of the date, time and place where such representations must be made. [Sub-item (4) substituted by s. 6 of Act No. 1 of 2004.]
(5) The Member of the Executive Council or the Minister, as the case may be, must consider the appeal, and may—
(a) uphold the appeal;
(b) in cases of misconduct contemplated in section 18, amend the sanction; or
(c) dismiss the appeal.’
88. The Employee’s concern in this matter is that the MEC had no right to substitute a sanction without her being allowed to make representations.
89. Schedule 2 of the EEA, clause 9 (4) which inter alia provides that:
‘If (the MEC) …chooses to allow further representations by the educator, or his or her representative or an employer, he or she must notify the educator or employer respectively of the date, time and place where such representations must be made.’
90. The Employee’s view is that the word “chooses” as used by the Act gives the MEC a discretion to decide to call for further hearing in circumstances whereby the sanction that the MEC intends to impose is harsher than the one that a chairperson of the disciplinary hearing had imposed.
91. Therefore, before the MEC could amend the sanction to a harsher one he would have to hear the other side, the employee, whereby he would have to provide the date, time, and place where such representations must be made. Meaning, an employee must be notified of a potential increase in his sanction so that proper representations such as mitigating factors can be presented before the MEC as it is the Employee’s view that the MEC cannot be given carte blanche in deciding on matters of this nature, without allowing an employee a right to be heard.
92. An employee who is appealing a finding of a chairperson of the disciplinary hearing is communicating to the higher authority his/her unhappiness, and if such employee was to be dismissed without being allowed to be heard, that would be unfair. The Employee therefore conclude that the MEC had no right to substitute the R6000 with dismissal without giving her an opportunity to make representation.
93. In the recent decision in Anglo American Platinum (Ltd) v Edwin Andriaan Beyers, the Labour Appeal Court (“LAC”) held that:
“The requirement of fairness is the threshold for determining whether an employer is entitled to substitute a disciplinary sanction imposed by a chairperson. It is also evident that exceptional circumstances will have to exist in order to justify such substitution. As a result, the requirement of fairness cannot be separated from the requirement of exceptional circumstances. These two considerations are therefore equally important when an employer considers substituting the decision of an appointed chairperson.”
94. With regards to the body shamming of Samuel and the bumping of Mbelekana, both testified that Mbulana was asked by the principal and the labour relations section to apologise for her behaviour. She duly apologized and they both regarded the matter as finalised as they did not lodge a dispute in terms of Chapter G of the PAM. This section indicates that if an employee is unhappy with the outcome of a grievance procedure, they can lodge a dispute with the ELRC. Both failed to do so and for the department to charge the Employee for a second time for offences she previously was instructed to apologise for amounts to double jeopardy.
95. Based on the evidence provided, the Employee therefore prays that her dismissal be found both procedurally and substantively unfair and that the Employer be ordered to reinstate her retrospectively to 1st September 2021.
ANALYSIS OF EVIDENCE AND ARGUMENTS
96. In Fidelity Cash Management v CDMA and others, 29 ILJ 964 LAC [2008], the Court held that it “fairness is determined mostly on the basis of the reason for the dismissal which the Employer had given at the time of the dismissal. The Employer will not be entitled to introduce new or different reasons at arbitration or review and where the reason given for the dismissal at the time, was not the true reason, then the Court or tribunal must determine the fairness based on the true reason for the dismissal”.
97. It is common cause that the Employee was dismissed for having been found guilty of the two charges stated in the background section above. That notwithstanding, the Employer chose to lead evidence on all the six charges that were originally preferred against the Employee, on the basis that an arbitration is a hearing de novo.
98. It is also worth noting that the Employer in its cross appeal against the sanction imposed by the presiding officer, also complained that the presiding officer had erred in not finding the Employee guilty on all the charges laid against her. Further, charge number six which relates to Mbelekane was never placed before the disciplinary hearing, this after it was withdrawn by the Employer.
99. With the above in mind and guided by the Fidelity case, I will henceforth focus only in the two charges for which the Employee was dismissed, and will not consider the other charges as they clearly, were not considered by the Employer when arriving at its decision to dismiss her. This was further pronounced in Mokgalimi Phuthi v Sibanye Gold (Ltd) Kloof Division (JR 2638/14) (handed down on 24 May 2016) where the court set aside an award by the Commissioner where the latter considered the appropriateness of the sanction in respect of misconduct that the Applicant was not charged and dismissed for. The Commissioner upheld the dismissal as fair based on consideration of misconduct that was not the reason for dismissal.
100. It is also common cause that the incident that led to the alleged assault by the Employee on Sinkwana took place in Mdlangu’s office, and in his presence.
101. The Employee’s not guilty plea is premised on two grounds: firstly, that Sinkwana was not employed by the Employer and therefore she cannot be guilty on s17, secondly, she disputes that she assaulted Sinkwana.
102. Without repeating the elements provided in the BCEA as stated above, of which only one need to exist in order for Sinkwana to be viewed as having been an employee. It is not in dispute that the Employee was the supervisor to Sinkwana and also it is clear that even when taking leave, Sinkwana needed permission from the school, hence she was at Mdlangu’s office to request leave when the incident took place.
103. In light of the above and for the purposes of this award, Sinkwana was an employee of the Employer in May 2018. That having been said, the issue raised by the Employee that the Employer has incorrectly charged her on s17 instead of s18 is immaterial.
104. Sinkwana submitted that the next Monday, whilst she was in Mdlangu’s office to talk about taking leave, the Employee came in and said “here is this shit” and banged the door on her, trying to push her out of the office. The Employee then grabbed her on her neck, strangled her such that she had scratches on her neck. They fought for a short period and Mdlangu separated them.
105. Mdlangu stated that whilst Sinkwana was in his office, the Employee as she entered, banged the door open and said to him “here is this shit.” The Employee then grabbed Sinkwana and in that process, her nose ring fell down. He intervened and that was the end of the fight.
106. The Employee testified that on a Friday 13th May, after discovering that her instruction to Sinkwana was not carried out, she asked Sinkwana why she did not follow her instructions and Sinkwana became angry and she (Employee) then left. Shortly thereafter, she found Sinkwana in Mdlangu’s office and said “here is the person who is alleged to be stealing food from the school”. Sinkwana grabbed her and tried to strangle her. She (Sinkwana) grabbed her so tight such that she was scared, her nose ring and spectacles fell down. Mdlangu did not intervene. She denied that she tried to bang the door onto Sinkwana. When she entered the office, the door was closed, she opened it and then closed it.
107. I must say that I find the Employee’s testimony quit baffling, as she paints a picture of her having done nothing, not even some retaliation or push back. Not only is such statement nonsensical, but it is also bewildering to think that she could have been attacked by her subordinate, and she became so scared and yet do nothing. She also went on to say that Mdlangu did not intervene.
108. The Employee’s defence thereof appears nothing other than a theatrical attempt meant to exonerate her from what clearly was a fight with Sinkwana. For her to even say Mdlangu did not intervene is just mindboggling and inconsistent with common sense.
109. It is evident that the Employee was involved in the fight, however, the charge refers to ‘seriously assaulting with the intention to cause grievous bodily harm’. Apart from the unsubstantiated claim by Sinkwana that she had scratches on her neck, there is no independent corroboration of this degree of the alleged injuries sustained.
110. Sinkwana did not even take leave nor seek any medical assistance. Surely, if the assault was of such a nature as to cause grievous bodily harm, there must be some form of substance to support that.
111. What then need to be answered is whether there was an assault that was so serious such that it was intended to cause grievous bodily harm. The evidence presented does not support the charge as it is. A short-lived fight in which the Employee grabbed Sinkwana, even if such a grabbing amounted to some form of strangulation, it still falls short, in my view, of an assault that had the intentions to cause grievous bodily harm.
112. It is not imaginable that a lady can within a short period of time, grab by hands another lady, a short-lived scuffle ensue and then such could be defined as the charge does, and yet, not even evidence of a minor injury is depicted.
113. Sinkwana said the Employee banged the door on her and pushed her such that she wanted her to move out of the office. This is at odds when compared to the Employee’s testimony that she found the office closed and opened the door and then closed it. Mdlangu submitted in evidence in chief that the Employee banged the door open, and that she attempted to hit Sinkwana with the door.
114. It must be born in mind that it is not in dispute that the Employee opened the door and she could only have done so if the door was closed. At the time she opened the door: firstly, there is no evidence that she knew that Sinkwana was in the office, secondly, it is improbable to think that she knew how far removed was Sinkwana from the door, seated or standing. So the Employer’s testimony that she attempted to hit Sinkwana with the door is unfounded and at best, is an exaggeration.
115. It is common cause that Mdlangu did not take any action against both Sinkwana and the Employee, apart from asking the Employee to amend her relationship with Sinkwana. I am at a loss as to what then, 19 months later, would have led to the charge being preferred against her. The Employer provided no reasons for such a very long delay.
116. With the aforementioned in mind, the Employer went on to include five more charges against the Employee, which relate to incidents that some of them went back more than 18 months, and some two years.
117. It also has to be born in mind that the incident took place in front of Mdlangu, who was the Employee’s direct supervisor at the time. What remains unknown are the reasons for the Employer to take about 19 months before taking the action against the Employee, more so if it viewed the incident as so serious that it warrants dismissal, yet when it happened, Mdlangu, as the Employee’s Supervisor, did not see the offence as that serious and in fact, he asked her to ensure that she had a sound relationship with Sinkwana. Just after this request to the Employee, it would not have been unreasonable for her to think that the matter was therefore closed.
118. The Employer, further went on to state in its cross appeal that the presiding officer in the disciplinary hearing not only erred by not following what it called the prescribed sanction when one is found guilty of section 17, but also erred in not finding her guilty on the other charges.
119. Clearly, the Employer’s actions indicate a predetermined position that it sought to see through, irrespective of what an independent process decides, and that is to have the Employee dismissed, as it ultimately did.
120. The Employer provided no reason at all, for only deciding to charge the Employee about 19 months later, and also go on a shopping spree to seek and add further charges. I will come back to this charge towards the end of this award.
121. On the second charge of pointing a finger at Mdlangu and the Principal, the Employee submitted that it was never her intention to do so, but she felt threatened as it appeared that everyone was ganging up against her and that that became clear when issues that happened in 2017 were being brought back.
122. Indeed, as I have already opined above, the Employee’s expressed feelings are persuasive to me. At no stage did the Employer lead any evidence that seeks to suggest that the Employee disregarded the authority of Mdlangu and /or the Principal. There is no mention of either of the two, who hold superior positions to her, having immediately taken an action against her, either in the meeting or even afterwards, on the same day or shortly thereafter.
123. Furthermore, despite Mdlangu saying that the Employee looked at the principal and said “you, you must protect me”, which is a desperate cry for assistance by the Employee being directed at the headmaster, there is no evidence of any engagement having taken place in an effort to get to the bottom of her sorry cry.
124. Without condoning the incident that evidently took place on 16th May 2018 in Mdlangu’s office, I do not believe that a sanction of dismissal is appropriate in this instance. The view which the Employer relies on that seeks to make it mandatory for one when found guilty on a section 17 charge is misguided, and seeks to impose a sanction to a presiding officer, just on the pronouncement of a guilty verdict.
125. The above was further clarified in in MEC for Education for the Province of KwaZulu Natal v Education Labour Relations Council (D537/07, D166/10 [2011] ZALCD, the Court in relation to Section 17 said “However, any finding of guilt against an educator under Section 17 (1) (a) to (f), whether it be in a court of law or at an internal disciplinary inquiry, cannot be said to automatically lead to that educator’s dismissal. The Act is the equivalent of an internal Disciplinary Code and provides the possible sanctions for a range of transgressions of the code of conduct prescribed for educators.”
126. In this case, I believe that the sanction of dismissal is inappropriate. I further have regard to the factors listed in Sidumo v Rustenburg Platinum Mines Ltd [2008] (2) BCLR 158 (CC) where the Court said a Commissioner must consider when deciding the fairness of a dismissal, and I have considered the below-
126.1 There is no reason given for the imposition of the sanction of dismissal by the Employer, apart from stating that it is a section 17 offence.
126.2 There cannot be any feasible harm caused by the Employee. Mdlangu did not lead any evidence of a loss of trust. It is also common cause that nothing ever happened between her and Sinkwana after fight until she was dismissed, which could have indicated a harmful and toxic relationship between the two. Further, it is common cause that Sinkwana’s fixed term contract ended in 2019 and she is no longer at the school.
126.3 The Employee had a clean record in her almost 30 years of service at the time. She continued to work for almost two years, before she was charged of the offence, when the Employer was fully aware of the incident from the moment it took place.
126.4 I believe that counselling could have been a better start in correcting her behaviour. She was a first time offender, and there is no reason to doubt that she could have changed her conduct.
126.5 The effect of dismissal is huge and disastrous to her, as she is a career educator and it is possible that this is the only career she has ever considered.
127. The EEA Appeals provide inter alia that —
….
(4) If the Member of the Executive Council or the Minister, as the case may be, chooses to allow further representations by the educator, or his or her representative or an employer, he or she must notify the educator or employer respectively of the date, time and place where such representations must be made.
128. Having regard to the procedure followed by the Appeal’s authority, I cannot find anything untoward as the Appeals Authority clearly has a discretion in how to determine the appeal. I mentioned discretion, on the basis that the word ‘choose’ when given its ordinary meaning, means one has a discretion to make or to exercise.
129. In any event, at the time the Appeal’s Authority made the determination in this matter, he /she had representations from both parties, although the Applicant’s representations were for a lenient sanction, but that does not negate the fact that the Appeals Authority had her representations.
130. I am therefore satisfied that fairness, with regard to the procedure undertaken did prevail.
131. Altogether, it is my finding that the dismissal of the Employee was substantively unfair.
132. In Jonas v CCMA [2017] 38 ILJ 376 (LC) the Labour Court held that “unless proof of breakdown in a relationship is provided, reinstatement remains the most effective remedy for substantively unfair dismissal. Not all disputes or issues between the parties result in the breakdown of a relationship. Most issues can effectively be dealt with by way of internal processes.”
133. In the premises, I have no reason not to award reinstatement of the Employee, to the position she held at the time of her dismissal.
134. I have further considered the fact that the Employee is not with clean hands, as I have stated above that indeed, a fight between her and Sinkwana did ensue and by all accounts, such conduct is reprehensive and ought not to be condoned.
135. With the foregoing being taken into consideration, I am of the view that the reinstatement of the Employee must not be with back-pay.
136. The Employer should sanction the Employee with a Written Warning for the incident that took place on 16 May 2018.
AWARD
137. The dismissal of the Employee, Ms Fundiswa Patience Mbulane by the Employer, the Department of Education – Eastern Cape, is procedurally fair and substantively unfair.
138. The Employer is ordered to reinstate the Employee back to the position she held prior to her dismissal on 26 August 2021 and to do so without a back-pay.
139. The Employer is further ordered to reinstate the Employee by no later than 12 May 2022.
140. Furthermore, the Employer is ordered to give the Employee a Written Warning.
141. The Employee is ordered to report back to school within three days after receiving this award.
Vuyiso Ngcengeni
Panelist / Commissioner
Date of Award: 30 April 2022
Panelist : Vuyiso Ngcengeni
Province : Eastern Cape
Employee : NAPTOSA obo Fundiswa Patience Mbulane
Employer : Department of Education – KwaZulu Natal
Issue : Alleged Unfair Dismissal
Venue : Virtual
Employee representative : Mr Anton Adams
Email address : antona@naptosa.org.za
Employee Representative : Mr Xolani Sam
Email address : xolani.sam@ecdoe.gov.za
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter was scheduled before me on 15th November 2021, 28th and 29th March 2022 in a virtual platform. The matter was held under auspices of the Education Labour Relations Council (the Council) in terms of Section 191(5)(a) of the Labour Relations Act of 1996 as amended (LRA).
2. The Employee was present and she was represented by Mr Anton Adams from NAPTOSA and the Employer was represented by Mr Xolani Sam. The hearing was conducted in English.
3. The Employee submitted one bundle which is made of 18 pages that include the referral documents and the charge sheet preferred to the Employee. I received all the closing arguments on 7th April 2022.
ISSUE TO BE DETERMINED
4. I am called upon to determine whether the dismissal of the Employee by the Employer was procedurally and substantively fair. She was found guilty in an disciplinary hearing on two charges and her challenge is based on the following-
4.1 Procedure:
- The Employer failed to follow the procedure laid down by the Employment of Educators Act No. 76 of 1998 as amended (EEA), when substituting the sanction from a disciplinary hearing, which was R 6000 and counselling by that of dismissal without affording her the opportunity to make representation.
- The Employer incorrectly charged the Employee with breach of section 17 of the EEA, whilst the person she is accused of shoving and strangling is not employed by the Employer, therefore section 18 should have been used.
- The Employer unreasonably delayed in preferring the charges, which is inconsistent with the requirements of both Schedule 2 of EEA and Schedule 8 of the LRA.
4.2 Substance:
- She denies the charges
5. She seeks reinstatement as a relief.
BACKGROUND TO THE DISPUTE
6. The Employee was employed as the educator and occupied a post of Head of Department (HOD) at Ekuphumleni High School (the school).
7. She was dismissed on 26th August 2021 and at the time of her dismissal, she had been an Educator for about 30 years. She had a clean record.
8. She referred a dispute of unfair dismissal to the Council on 3rd September 2021. A certificate of non-resolution was issued on 22nd September 2021 and the Employee referred the matter for arbitration on 11th October 2021.
9. The Employee was charged with six charges and was found guilty of two of the charges and those are:
(1) It is alleged that you are guilty of misconduct in terms of Section 17(1)(d) of the Employment of Educators Act, 1998 as amended (EEA) which inter alia reads as follows:
“An educator must be dismissed if her she is found guilty of - seriously assaulting with the intention to cause grievous bodily harm to a learner, student or other employee”, in that while on duty at Ekuphumleni High School on or around 16 May 2018 you shoved and strangled Ms Thandeka Sinkwana who is working as a meal servicer at Ekuphumleni High School, as a result of your actions, Ms Sinkwana’s neck was left with scars.
(5) It is alleged that you are guilty of misconduct in terms of Section 17(1)(d) of the Employment of Educators Act, 1998 as amended (EEA) which inter alia reads as follows:
“An educator commits misconduct if he or she displays disrespect towards others in the workplace or demonstrates abusive or insolent behaviour” in that, on 26 April 2019 in a meeting at Ekuphumleni High School, you pointed a finger on both the Principal and the Deputy Principal, disregarding their authority in so doing.
10. One charge, which was listed as number six in the charge sheet was withdrawn during the disciplinary hearing, as the witness to that charge was in hospital and thus not available to testify.
11. After being found guilty of the two charges, the chairperson of the disciplinary hearing imposed the sanction of R6000 and counselling, however, the Employee was not satisfied with this outcome and she launched an appeal to the Member of the Executive Council (MEC).
12. The Employer also cross appealed against the sanction, calling it too lenient and not consistent with the provisions of the EEA when one is found guilty of such a section.
13. The MEC substituted the sanction of R6000 and counselling, with that of dismissal.
SURVEY OF EVIDENCE AND SUBMISSIONS
Employer’s case
Ms Thandeka Sinkwana testified on behalf of the Employer under oath as follows:-
14. She was employed on a Fixed Term Contract in March 2018 as a meal server at the School and as meal servers, they reported to the Employee. Her duty was to cook and serve the learners at the school.
15. On a Friday, 13th May 2018, as they preparing food, the realised that there was not enough vegetables. She approached the Employee and alerted her to the shortages and the Employee told her that they needed to dish out food such that not all vegetables are contained in all the dishes. The Employee gave the same instruction to all the meal servers.
16. It so happened that they did not follow the instruction and she reported such to the Employee. The Employee reprimanded her and she complained and enquired as to why the Employee was only reprimanding her, when she was not the only one responsible for executing the instruction. The Employee told her that if she did not want to work, she must sit down.
17. She was touched by such a response and as she closed the pot, the lid went hard on the pot. She told the Employee that she was going to report the incident as she did not appreciate how she (Employee) talked to her. She went to Mdlangu, the Deputy Principal and reported the incident.
18. The next Monday, 16th May 2018, she went to Mdlangu to talk about taking leave in the following day. Whilst in the office, the Employee came in and said “here is this shit” and pushed her towards the door, trying to push her out of the office. The Employee then charged at her and grabbed her on her neck. They then fought and the Employee strangled her such that she had scratches.
19. She retaliated against the Employee by pushing her away and in that process, the Employee’s glasses and one nose ring fell down. Mdlangu separated them. After that, the Employee told her to go to school as she could see that she was illiterate.
20. Cross examination – She was paid by a cheque through the school’s clerk and was not getting a payslip from the Employer. She did not feel anything serious and painful after the incident, hence she did not visit either the clinic or the police station.
Mr Mdlangu (Mdlangu) testified under oath as follows:-
21. He was the Deputy Principal at the school at the time of the incident. Following the incident of food which was reported to him by Sinkwana, he called the Employee into his office and informed her about the incident.
22. On Monday 16th May, whilst Sinkwana was in his office, the Employee as she entered the office, banged the door open and said to him “here is this shit.” The Employee then grabbed Sinkwana and in the process her nose ring fell down. He intervened and told them that that was the workplace. They continued exchanging words and the Employee referred to Sinkwana as low class.
23. In another incident on 18th April 2019, the Employee, in front of the learners pointed a finger at Ms Mbelekane (also an Educator) and told her she was not afraid of her and she later apologised. Mbelekane did not accept her apology and he related such to the Employee. In a SMT meeting held to try and resolve the impulse, the Employee pointed a finger at him and said he you should stop writing her name in his book (incident book).
24. He recorded the incident in the incident book and the Employee took the incident book and threatened to tear out the page. She then said she was going to make copies. The incident register was a confidential document that contained other employee names and incidents reported to his office.
25. When he took notes of the incident, the Employee was about 1,5 meters away from him, but he could not anticipate that the book was to be grabbed from his hands by the Employee.
26. In one incident when the learners were writing test outside the office, and they as the SMT were in a meeting, the Employee wanted to leave the meeting and was asking for Mbelekane. She looked at the principal and said “you, you must protect me”.
27. The Employee also pointed a finger at him and said “you, refrain from writing my name in your books”. She also spilt water onto the floor.
28. They as members of the SMT, were very worried as they had never seen her in such a state before. One of the SMT members then asked Mbelekane to leave the school as they were afraid that the Employee might hurt her.
29. His dignity was impaired at being pointed at by a finger and the and threats were made in the presence of both the principal and SMT.
30. They could not resolve the issue between the Employee and Mbelekane because the Employee prevented them from doing so.
31. Cross examination - He did not call the Employee into his office, she just barged in and slammed the door and referred to Sinkwana as a shit. He could not recall the date of the incident. The incident was short lived as he managed to separate them. The Employee tried to hit Sinkwana with the door. There were no visible injuries on both Sinkwana and the Employee.
32. He reported the incident to the principal and also called the Employee to his office and asked her to go and make peace with Sinkwana. No medical certificate or J88 was submitted by Sinkwana nor did she take any sick leave.
33. He did not resist when incident book was taken by the Employee. He admitted that the book was not forcefully removed from his hands.
34. The Employee was a good educator, very knowledgeable about her field and her results were always great. He acknowledged that the Employee had behavioural problems but was never disciplined by or referred to health and wellness.
Mrs Fezeka Samuel (Samuel) testified under oath as follows:-
35. She is employed as the Educator at the school and has been at the school since August 2016.
36. On 1st April 2017, it was a public holiday and shad a grade 12 class. When she was going into the class and whilst on the veranda, the Employee bumped her on her head and she (Employee) told her that that was the test.
37. She does not know why the Employee bumped her, but in 2016 when they went for a music competition in Queenstown, she was asked to assist on handling food. It so happened that the Employee did not eat with the rest of the educators, and she (Employee) said to her “you skinny lady wants to do things your own way but you are new at the school”. So she thinks the incident of the Employee bumping her was as a result of the incident of the food.
38. On the following day, the 30th September 2016, whilst she was waiting for Mdlangu to report the incident, the Employee came and said to her “you sheet, you bumped me yesterday and you will never do that again. I have heard that you have a knife and I will shoot you”.
39. She was very hurt and she took her car and left the school. After reporting the matter to the Principal, the Employee apologised to her, but after her apology, she continued with her behaviour.
40. Cross examination – The Employee body-shamed her and bumped her. It was not on 7th April 2019, it was on 7th April 2017. Although the charge sheet says it was 7th April 2017, she knows nothing about that date and that is a typing error. The day falls on a Sunday and she does not go to school on a Sunday.
41. She denies that she was the one who bumped the Employee. It is not true to say she had a bad relationship with the Employee. She did not notice the Employee until the bumping incident, as there are many educators at the school.
42. She does not think she has a problem with the Employee and if that was the case, then she must have followed the Employee’s behaviour towards her.
Ms Linda Mbelekani (Mbelekani) testified under oath as follows:-
43. She is one of the Heads of Departments at the school. On 10th April 2019 whilst the late principal was briefing them about the events of the day, she was sitting down and as she stood up and readying herself to walk, the Employee hit hear on her shoulder, saying she had bumped her (Employee), which was not true.
44. She went to her class and afterwards, she felt pain on her shoulder and went to report the incident to the Mdlangu, who told her that he was also afraid of the Employee. She reported the incident to the Employer’s Labour Relations and the Employee apologised.
45. About a month later, the Employee called her a liar, grabbed the incident book from Mdlangu and went out to make copies, saying they wrote rubbish about her.
46. After that incident, another one happened when she was walking towards the HOD’s room, and the Employee was walking out. She tried to move away from the Employee, but the Employee moved towards her and bumped her, such that she almost fell down and was saved by the pillar. She is not aware why did the Employee do that.
47. The Employee’s behaviour affected her a lot and she ended up being hospitalised. Even after her (Employee) apology, her (Employee) behaviour towards her did not change.
48. Cross examination – She has evidence that the Employee was behind her health status because her Doctor told her she has psychiatric problems. She denied that they, as the educators were ganging up against the Employee and there was no conspiracy against her.
49. The bumping incident was not an accident, the Employee did it deliberately as instead of walking straight to the class room, she changed direction and walked towards her. She does not agree that they bumped into each other, the Employee bumped her. She agrees that by apologising, the matter was therefore closed.
50. Arguments - on whether the department should have used Schedule 2 of Disciplinary Code and procedure for EEA as Sinkwana was employed by the SGB, therefore section 17(1)(d) of EEA should have not been used to charge the Employee, and that section 18 should have been used instead. It should be noted that this line of argument was never raised in a disciplinary hearing by the Employee.
51. The relevance and irrelevance of section 17 is neither here nor there for the determination of an appropriate sanction. An educator can be dismissed even if s/he charged under section 18 of EEA, if found guilty depending on the gravity of transgression one has committed. Section 17(1)(d) states that an educator must be dismissed if s/he found guilty of – seriously assaulting with the intention to cause grievous bodily harm to a learner, student or other employee.
52. Our labour legislation defines an employee in a rather wide context. In terms of section 213 of the Labour Relations Act (LRA) (this definition is the same under the Basic Conditions of Employment Act, (BCEA) defines an employee as follows:
“(a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and (b) any other person who in any manner assists in carrying on or conducting the business of an employer.”
53. As highlighted above, the definition is fairly wide and perhaps aimed at optimal coverage to individuals under arrangements analogous to an employment relationship but it explicitly excludes an independent contractor.
54. The Labour Appeal Court in McKenzie accordingly provided such crucial guidance in discerning the elements of an employment relationship (contract of service) in contrast to an independent contract (contract of work).
55. In addition, the Code of Good Practice: Who is an Employee? (Published under General Notice 1774 in Government Gazette No. 29445 dated 1 December 2006) provides material guidelines on what constitutes an employee.
56. Importantly, section 200A of the LRA and section 83A of the BCEA, applying mutatis mutandis, creates a statutory rebuttable presumption for those employees earning the equivalent or less than the prescribed threshold (presently prescribed at R 205 433.30) as determined by the Minister of Labour. Accordingly, if one or more of the following seven factors are present, such a person will be deemed an employee. Section 200A of the LRA and section 83A of the BCEA both read as follows:
“(1) Until the contrary is proved, a person who works for, or renders services to, any other person, is presumed, regardless of the form of the contract (emphasis added), to be an employee if any one or more of the following factors are present:
- the manner in which the person works is subject to the control or direction of another person;
- the person’s hours of work are subject to the control or direction of another person;
- in the case of a person who works for an organisation, the person forms part of that organisation;
- the person has worked out for that person for an average of at least 40 hours per month over the last three months;
- the person is economically dependent on the other person for whom he or she works or renders services;
- the person is provided with tools of trade or work equipment by the other person; or
- the person only works for or renders services to one person.”
57. Following the above provisions, our labour legislation presumes that a person is an employee notwithstanding what a contract may be called or the form it takes. The law effectively looks at the substance of the relationship/agreement.
58. It should be noted that when one looks at the above factors to determine whether Sinkwana was an employee you will find more than 3 factors:
- she was contracted to be a meal server at Ekuphumleni S.S.S .
- she was working under the direction of her employer /supervisor which was the Employee in this case.
- she was provided with tools of trade by the school.
- her working ours were regulated by the school.
59. Our argument as employer chair was that the Department of education deposit money to the school account in order for the school to make salary payment of Sinkwana. Furthermore, the school is part of the Department of Education and the principal as an accounting officer in the school represents the Head of Department. Therefore Sinkwana who was contracted by the department is considered as employee.
60. S17 makes dismissal for transgressing any of the misconduct cases listed therein compulsory. This is so because of the use of the term “must” in its opening sentence. The presiding officer in the disciplinary hearing erred on the legal implications of s17 of EEA and he assumed discretion he does not have, as s17 is clear that an educator who is found guilty must be dismissed.
61. The presiding officer after having found the Employee guilty on that charge, dismissal was an appropriate sanction hence as Employer we had submitted counter appeal to the office of the MEC on the bases that the presiding officer by assuming discretion he doesn’t have had failed to apply his mind on evidence lead before him by failing to find the Employee guilty on other charges levelled against her.
The Employee’s case
The Employee testified under oath as follows-
62. At the time of her dismissal, she had been an educator for 29 years, until the charges that led to her dismissal, she had never been charged before, not even called into a counselling by anyone.
63. She was the supervisor for the meal servers and there were about six of them. She had been in the nutrition service since it started. The meal servers are employed by the SGB and they are paid by the SGB, not the Employer.
64. On a Friday in May, she requested Sinkwana to include vegetables when they dish out food to the learners, and she later found out that Sinkwana did not follow her instructions. She then asked Sinkwana why she did not follow her instructions, Sinkwana became angry and she (Employee) then left.
65. Shortly thereafter, she found Sinkwana in Mdlangu’s office and said “here is the person who is alleged to be stealing food from the school”. Sinkwana grabbed her and tried to strangle her. She (Sinkwana) grabbed her so tight such that she was scared, her nose ring and spectacles fell down.
66. It is not true that she tried to bang the door onto Sinkwana. When she entered the office, the door was closed, she opened it and then closed it.
67. There were no scratch marks on both of them.
68. She never grabbed the incident book from Mdlangu, she asked for it and he gave it to her. She went to make copies just for in case anyone laid charged against her, she could have some documentary evidence. She did not remove the book from the premises, she made copies within the school premises. As she took the book, Mdlangu never resisted.
69. It was never her intention to threaten Mdlangu and the principal. She felt threatened, may be because she felt that everyone was ganging up against her and that became more prominent when issues that happened in 2017 were being brought back.
70. She was never at school on 7th April 2019.
71. She never bumped Mbelekane, she quickly went to the HODs office and when she was rushing back, she saw Mbelekane walking towards the office, she tried to move to the right hand side to avoid her, Mbelekane did the same, she walked to the left hand side, Mbelekane did so as well, and such a small dance led to them bumping on each other. They both apologised to each and the matter ended there.
72. Cross examination – She gave the instruction regarding the serving of meals to Sinkwana only, because Sinkwana was the only one who normally came to her for any enquiries and she was always willing to work.
73. Whilst in Mdlangu’s office, the allegations she made about Sinkwana being the one who stole food were based on what she was told by some meal servers. She had reported the allegations to Mdlangu and even on that specific day, she was there to report it.
74. She was called to the office by Mdlangu and at the time, she did not know that Sinkwana was also in the office.
75. There were no scratch marks on both of them. There is no way Sinkwana would have had scratch marks, she did not even ask for leave. She did not examine Sinkwana, but she did not see any scratch marks. She disputes that she would not know whether Sinkwana had scratch marks or not.
76. She did not grab the book from Mdlangu, she asked for it and he gave it to her. She does not recall him saying that the book was confidential and she was not allowed to make copies for herself.
77. She disputes that she was not allowed to make copies from the incident book. She did not see what was written about other educators in the book, as her interest was only on her name.
78. She does not know anything about her having referred to Samuel as a loose girl, she was not at school on 7th April 2019. She does not agree that 2019 in the charge sheet was written by error, especially on such serious issues.
79. On 10th April 2019, Mbelekane is the one who bumped her when they were being addressed by the late principal. She then touched Mbelekane on her shoulder, alerted her to the fact that she bumped her. She was friends with Mbelekane and she did not know that she was hurt by her touch.
80. At the school, as females, they shook hands and touched each other on a regular basis and they are allowed to do that.
81. Arguments - The Employee was charged in terms of the EEA of which Schedule 2 provides that, ‘The principles underlying the Code and Procedures and any decision to discipline an educator are that –
(a) discipline is a corrective and not a punitive measure.
(b) discipline must be applied in a prompt, fair, consistent, and just manner.
82. The LRA provides for the speedy resolution of disputes in the workplace, and it must be concluded in the shortest time frame. The Constitutional Court in Stokwe v Member of the Executive Council: Department of Education, Eastern Cape and Others, (CCT33/18) [2019] ZACC 3; at para 71 in expounding the question of the delay in an internal disciplinary hearing provided these salutary paragraphs:
83. This also accords with the general principles of how delay impacts the fairness of disciplinary proceedings. The question of whether a delay in finalisation of disciplinary proceedings is unacceptable is a matter that can be determined on a case-by-case basis. There can be no hard and fast rules. Whether the delay would impact negatively on the fairness of disciplinary proceedings would thus depend on the facts of each case (Gcaba v Minister for Safety and Security and Others 2010 (1) SA 238 (CC);
84. And the Court further held that,
‘The requirement of promptness not only extends to the institution of disciplinary proceedings, but also to their expeditious completion. If an employee is retained in employment for an extended period after the institution of disciplinary action, it may indicate that the employment relationship has not broken down. An appeal procedure is a separate facet of the disciplinary procedure and must be conducted with the same degree of alacrity for procedural fairness to be fulfilled.’
The Labour Court, regarding the assessment of delay held that:
The delay must be unreasonable. In this context, firstly, the length of the delay is important. The longer the delay, the more likely it is that it would be unreasonable.
(a) The explanation for the delay must be considered. In this respect, the employer must provide an explanation that can reasonably serve to excuse the delay. A delay that is inexcusable would normally lead to a conclusion of unreasonableness.
85. The delay in disciplining the Employee for alleged transgressions in 2017, 2018 and 2019 goes against the principles set out in schedule 2 of the EEA.
86. The Employer did not present evidence in respect of the causes for the delay in charging the Employee in 2021 for alleged offences that occurred in 2017, despite the provisions of the LRA providing for the speedy resolution of disputes.
87. Schedule 2 provides that: ‘9.
Appeals. –
(1) An educator or an employer may appeal against a finding or sanction by making an application in accordance with Form E attached to this Schedule.
[Sub-item (1) substituted by s. 6 of Act No. 1 of 2004.]
(2) The educator or the employer must, within five working days of receiving notice of the final outcome of a disciplinary hearing, submit the appeal form to the Member of the Executive Council or the Minister, as the case may be.
[Sub-item (2) substituted by s. 6 of Act No. 1 of 2004.]
(3) On receipt of the application referred to in sub item (1), the Member of the Executive Council or the Minister, as the case may be, must request the employer to provide him or her with a copy of the record of the proceedings and any other relevant documentation.
(4) If the Member of the Executive Council or the Minister, as the case may be, chooses to allow further representations by the educator, or his or her representative or an employer, he or she must notify the educator or employer respectively of the date, time and place where such representations must be made. [Sub-item (4) substituted by s. 6 of Act No. 1 of 2004.]
(5) The Member of the Executive Council or the Minister, as the case may be, must consider the appeal, and may—
(a) uphold the appeal;
(b) in cases of misconduct contemplated in section 18, amend the sanction; or
(c) dismiss the appeal.’
88. The Employee’s concern in this matter is that the MEC had no right to substitute a sanction without her being allowed to make representations.
89. Schedule 2 of the EEA, clause 9 (4) which inter alia provides that:
‘If (the MEC) …chooses to allow further representations by the educator, or his or her representative or an employer, he or she must notify the educator or employer respectively of the date, time and place where such representations must be made.’
90. The Employee’s view is that the word “chooses” as used by the Act gives the MEC a discretion to decide to call for further hearing in circumstances whereby the sanction that the MEC intends to impose is harsher than the one that a chairperson of the disciplinary hearing had imposed.
91. Therefore, before the MEC could amend the sanction to a harsher one he would have to hear the other side, the employee, whereby he would have to provide the date, time, and place where such representations must be made. Meaning, an employee must be notified of a potential increase in his sanction so that proper representations such as mitigating factors can be presented before the MEC as it is the Employee’s view that the MEC cannot be given carte blanche in deciding on matters of this nature, without allowing an employee a right to be heard.
92. An employee who is appealing a finding of a chairperson of the disciplinary hearing is communicating to the higher authority his/her unhappiness, and if such employee was to be dismissed without being allowed to be heard, that would be unfair. The Employee therefore conclude that the MEC had no right to substitute the R6000 with dismissal without giving her an opportunity to make representation.
93. In the recent decision in Anglo American Platinum (Ltd) v Edwin Andriaan Beyers, the Labour Appeal Court (“LAC”) held that:
“The requirement of fairness is the threshold for determining whether an employer is entitled to substitute a disciplinary sanction imposed by a chairperson. It is also evident that exceptional circumstances will have to exist in order to justify such substitution. As a result, the requirement of fairness cannot be separated from the requirement of exceptional circumstances. These two considerations are therefore equally important when an employer considers substituting the decision of an appointed chairperson.”
94. With regards to the body shamming of Samuel and the bumping of Mbelekana, both testified that Mbulana was asked by the principal and the labour relations section to apologise for her behaviour. She duly apologized and they both regarded the matter as finalised as they did not lodge a dispute in terms of Chapter G of the PAM. This section indicates that if an employee is unhappy with the outcome of a grievance procedure, they can lodge a dispute with the ELRC. Both failed to do so and for the department to charge the Employee for a second time for offences she previously was instructed to apologise for amounts to double jeopardy.
95. Based on the evidence provided, the Employee therefore prays that her dismissal be found both procedurally and substantively unfair and that the Employer be ordered to reinstate her retrospectively to 1st September 2021.
ANALYSIS OF EVIDENCE AND ARGUMENTS
96. In Fidelity Cash Management v CDMA and others, 29 ILJ 964 LAC [2008], the Court held that it “fairness is determined mostly on the basis of the reason for the dismissal which the Employer had given at the time of the dismissal. The Employer will not be entitled to introduce new or different reasons at arbitration or review and where the reason given for the dismissal at the time, was not the true reason, then the Court or tribunal must determine the fairness based on the true reason for the dismissal”.
97. It is common cause that the Employee was dismissed for having been found guilty of the two charges stated in the background section above. That notwithstanding, the Employer chose to lead evidence on all the six charges that were originally preferred against the Employee, on the basis that an arbitration is a hearing de novo.
98. It is also worth noting that the Employer in its cross appeal against the sanction imposed by the presiding officer, also complained that the presiding officer had erred in not finding the Employee guilty on all the charges laid against her. Further, charge number six which relates to Mbelekane was never placed before the disciplinary hearing, this after it was withdrawn by the Employer.
99. With the above in mind and guided by the Fidelity case, I will henceforth focus only in the two charges for which the Employee was dismissed, and will not consider the other charges as they clearly, were not considered by the Employer when arriving at its decision to dismiss her. This was further pronounced in Mokgalimi Phuthi v Sibanye Gold (Ltd) Kloof Division (JR 2638/14) (handed down on 24 May 2016) where the court set aside an award by the Commissioner where the latter considered the appropriateness of the sanction in respect of misconduct that the Applicant was not charged and dismissed for. The Commissioner upheld the dismissal as fair based on consideration of misconduct that was not the reason for dismissal.
100. It is also common cause that the incident that led to the alleged assault by the Employee on Sinkwana took place in Mdlangu’s office, and in his presence.
101. The Employee’s not guilty plea is premised on two grounds: firstly, that Sinkwana was not employed by the Employer and therefore she cannot be guilty on s17, secondly, she disputes that she assaulted Sinkwana.
102. Without repeating the elements provided in the BCEA as stated above, of which only one need to exist in order for Sinkwana to be viewed as having been an employee. It is not in dispute that the Employee was the supervisor to Sinkwana and also it is clear that even when taking leave, Sinkwana needed permission from the school, hence she was at Mdlangu’s office to request leave when the incident took place.
103. In light of the above and for the purposes of this award, Sinkwana was an employee of the Employer in May 2018. That having been said, the issue raised by the Employee that the Employer has incorrectly charged her on s17 instead of s18 is immaterial.
104. Sinkwana submitted that the next Monday, whilst she was in Mdlangu’s office to talk about taking leave, the Employee came in and said “here is this shit” and banged the door on her, trying to push her out of the office. The Employee then grabbed her on her neck, strangled her such that she had scratches on her neck. They fought for a short period and Mdlangu separated them.
105. Mdlangu stated that whilst Sinkwana was in his office, the Employee as she entered, banged the door open and said to him “here is this shit.” The Employee then grabbed Sinkwana and in that process, her nose ring fell down. He intervened and that was the end of the fight.
106. The Employee testified that on a Friday 13th May, after discovering that her instruction to Sinkwana was not carried out, she asked Sinkwana why she did not follow her instructions and Sinkwana became angry and she (Employee) then left. Shortly thereafter, she found Sinkwana in Mdlangu’s office and said “here is the person who is alleged to be stealing food from the school”. Sinkwana grabbed her and tried to strangle her. She (Sinkwana) grabbed her so tight such that she was scared, her nose ring and spectacles fell down. Mdlangu did not intervene. She denied that she tried to bang the door onto Sinkwana. When she entered the office, the door was closed, she opened it and then closed it.
107. I must say that I find the Employee’s testimony quit baffling, as she paints a picture of her having done nothing, not even some retaliation or push back. Not only is such statement nonsensical, but it is also bewildering to think that she could have been attacked by her subordinate, and she became so scared and yet do nothing. She also went on to say that Mdlangu did not intervene.
108. The Employee’s defence thereof appears nothing other than a theatrical attempt meant to exonerate her from what clearly was a fight with Sinkwana. For her to even say Mdlangu did not intervene is just mindboggling and inconsistent with common sense.
109. It is evident that the Employee was involved in the fight, however, the charge refers to ‘seriously assaulting with the intention to cause grievous bodily harm’. Apart from the unsubstantiated claim by Sinkwana that she had scratches on her neck, there is no independent corroboration of this degree of the alleged injuries sustained.
110. Sinkwana did not even take leave nor seek any medical assistance. Surely, if the assault was of such a nature as to cause grievous bodily harm, there must be some form of substance to support that.
111. What then need to be answered is whether there was an assault that was so serious such that it was intended to cause grievous bodily harm. The evidence presented does not support the charge as it is. A short-lived fight in which the Employee grabbed Sinkwana, even if such a grabbing amounted to some form of strangulation, it still falls short, in my view, of an assault that had the intentions to cause grievous bodily harm.
112. It is not imaginable that a lady can within a short period of time, grab by hands another lady, a short-lived scuffle ensue and then such could be defined as the charge does, and yet, not even evidence of a minor injury is depicted.
113. Sinkwana said the Employee banged the door on her and pushed her such that she wanted her to move out of the office. This is at odds when compared to the Employee’s testimony that she found the office closed and opened the door and then closed it. Mdlangu submitted in evidence in chief that the Employee banged the door open, and that she attempted to hit Sinkwana with the door.
114. It must be born in mind that it is not in dispute that the Employee opened the door and she could only have done so if the door was closed. At the time she opened the door: firstly, there is no evidence that she knew that Sinkwana was in the office, secondly, it is improbable to think that she knew how far removed was Sinkwana from the door, seated or standing. So the Employer’s testimony that she attempted to hit Sinkwana with the door is unfounded and at best, is an exaggeration.
115. It is common cause that Mdlangu did not take any action against both Sinkwana and the Employee, apart from asking the Employee to amend her relationship with Sinkwana. I am at a loss as to what then, 19 months later, would have led to the charge being preferred against her. The Employer provided no reasons for such a very long delay.
116. With the aforementioned in mind, the Employer went on to include five more charges against the Employee, which relate to incidents that some of them went back more than 18 months, and some two years.
117. It also has to be born in mind that the incident took place in front of Mdlangu, who was the Employee’s direct supervisor at the time. What remains unknown are the reasons for the Employer to take about 19 months before taking the action against the Employee, more so if it viewed the incident as so serious that it warrants dismissal, yet when it happened, Mdlangu, as the Employee’s Supervisor, did not see the offence as that serious and in fact, he asked her to ensure that she had a sound relationship with Sinkwana. Just after this request to the Employee, it would not have been unreasonable for her to think that the matter was therefore closed.
118. The Employer, further went on to state in its cross appeal that the presiding officer in the disciplinary hearing not only erred by not following what it called the prescribed sanction when one is found guilty of section 17, but also erred in not finding her guilty on the other charges.
119. Clearly, the Employer’s actions indicate a predetermined position that it sought to see through, irrespective of what an independent process decides, and that is to have the Employee dismissed, as it ultimately did.
120. The Employer provided no reason at all, for only deciding to charge the Employee about 19 months later, and also go on a shopping spree to seek and add further charges. I will come back to this charge towards the end of this award.
121. On the second charge of pointing a finger at Mdlangu and the Principal, the Employee submitted that it was never her intention to do so, but she felt threatened as it appeared that everyone was ganging up against her and that that became clear when issues that happened in 2017 were being brought back.
122. Indeed, as I have already opined above, the Employee’s expressed feelings are persuasive to me. At no stage did the Employer lead any evidence that seeks to suggest that the Employee disregarded the authority of Mdlangu and /or the Principal. There is no mention of either of the two, who hold superior positions to her, having immediately taken an action against her, either in the meeting or even afterwards, on the same day or shortly thereafter.
123. Furthermore, despite Mdlangu saying that the Employee looked at the principal and said “you, you must protect me”, which is a desperate cry for assistance by the Employee being directed at the headmaster, there is no evidence of any engagement having taken place in an effort to get to the bottom of her sorry cry.
124. Without condoning the incident that evidently took place on 16th May 2018 in Mdlangu’s office, I do not believe that a sanction of dismissal is appropriate in this instance. The view which the Employer relies on that seeks to make it mandatory for one when found guilty on a section 17 charge is misguided, and seeks to impose a sanction to a presiding officer, just on the pronouncement of a guilty verdict.
125. The above was further clarified in in MEC for Education for the Province of KwaZulu Natal v Education Labour Relations Council (D537/07, D166/10 [2011] ZALCD, the Court in relation to Section 17 said “However, any finding of guilt against an educator under Section 17 (1) (a) to (f), whether it be in a court of law or at an internal disciplinary inquiry, cannot be said to automatically lead to that educator’s dismissal. The Act is the equivalent of an internal Disciplinary Code and provides the possible sanctions for a range of transgressions of the code of conduct prescribed for educators.”
126. In this case, I believe that the sanction of dismissal is inappropriate. I further have regard to the factors listed in Sidumo v Rustenburg Platinum Mines Ltd [2008] (2) BCLR 158 (CC) where the Court said a Commissioner must consider when deciding the fairness of a dismissal, and I have considered the below-
126.1 There is no reason given for the imposition of the sanction of dismissal by the Employer, apart from stating that it is a section 17 offence.
126.2 There cannot be any feasible harm caused by the Employee. Mdlangu did not lead any evidence of a loss of trust. It is also common cause that nothing ever happened between her and Sinkwana after fight until she was dismissed, which could have indicated a harmful and toxic relationship between the two. Further, it is common cause that Sinkwana’s fixed term contract ended in 2019 and she is no longer at the school.
126.3 The Employee had a clean record in her almost 30 years of service at the time. She continued to work for almost two years, before she was charged of the offence, when the Employer was fully aware of the incident from the moment it took place.
126.4 I believe that counselling could have been a better start in correcting her behaviour. She was a first time offender, and there is no reason to doubt that she could have changed her conduct.
126.5 The effect of dismissal is huge and disastrous to her, as she is a career educator and it is possible that this is the only career she has ever considered.
127. The EEA Appeals provide inter alia that —
….
(4) If the Member of the Executive Council or the Minister, as the case may be, chooses to allow further representations by the educator, or his or her representative or an employer, he or she must notify the educator or employer respectively of the date, time and place where such representations must be made.
128. Having regard to the procedure followed by the Appeal’s authority, I cannot find anything untoward as the Appeals Authority clearly has a discretion in how to determine the appeal. I mentioned discretion, on the basis that the word ‘choose’ when given its ordinary meaning, means one has a discretion to make or to exercise.
129. In any event, at the time the Appeal’s Authority made the determination in this matter, he /she had representations from both parties, although the Applicant’s representations were for a lenient sanction, but that does not negate the fact that the Appeals Authority had her representations.
130. I am therefore satisfied that fairness, with regard to the procedure undertaken did prevail.
131. Altogether, it is my finding that the dismissal of the Employee was substantively unfair.
132. In Jonas v CCMA [2017] 38 ILJ 376 (LC) the Labour Court held that “unless proof of breakdown in a relationship is provided, reinstatement remains the most effective remedy for substantively unfair dismissal. Not all disputes or issues between the parties result in the breakdown of a relationship. Most issues can effectively be dealt with by way of internal processes.”
133. In the premises, I have no reason not to award reinstatement of the Employee, to the position she held at the time of her dismissal.
134. I have further considered the fact that the Employee is not with clean hands, as I have stated above that indeed, a fight between her and Sinkwana did ensue and by all accounts, such conduct is reprehensive and ought not to be condoned.
135. With the foregoing being taken into consideration, I am of the view that the reinstatement of the Employee must not be with back-pay.
136. The Employer should sanction the Employee with a Written Warning for the incident that took place on 16 May 2018.
AWARD
137. The dismissal of the Employee, Ms Fundiswa Patience Mbulane by the Employer, the Department of Education – Eastern Cape, is procedurally fair and substantively unfair.
138. The Employer is ordered to reinstate the Employee back to the position she held prior to her dismissal on 26 August 2021 and to do so without a back-pay.
139. The Employer is further ordered to reinstate the Employee by no later than 12 May 2022.
140. Furthermore, the Employer is ordered to give the Employee a Written Warning.
141. The Employee is ordered to report back to school within three days after receiving this award.
Vuyiso Ngcengeni
Panelist / Commissioner