ELRC 359-21/22WC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN CAPE TOWN

Case No: ELRC 359-21/22WC

                   

In the matter between

 

 Achmat Jack                                                            Applicant 

                                                                 

And

 

Department of Education Western Cape               Respondent                               

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                                          ARBITRATION AWARD

____________________________________________________________

ARBITRATOR:        A.Singh-Bhoopchand                       

HEARD:                    25 February 2022; 1 June 2022; 29 July 2022    

DATE OF AWARD: 17 August 2022   

   

DETAILS OF HEARING AND REPRESENTATION

 

1.   The arbitration hearing concerning an alleged unfair dismissal convened on 25 February 2022, 1 June 2022, and 29 July 2022. The Respondent was represented by Ms Lauren Randall , a labour relations official within the Labour Relations Directorate of the Respondent. The applicant, Mr Achmat Jack, was present on 25 February 2022 and 1 June 2022 and he presented his own case. He was however absent on 29 July 2022.

 

2. I established that the Notice of Set Down for 29 July 2022 had been properly served on all parties. In addition, attempts were made to contact Mr Jack telephonically to establish his whereabouts, but he could not be reached.

 

3.  The Respondent had closed its case on 1 June 2022 and all that remained was for the applicant to present his case. Respondent argued that it was evident that the applicant had abandoned his case by his failure to appear. As I was satisfied that the applicant had been properly notified, I requested the Respondent to present their closing arguments in order that I may determine the matter on the evidence before me. I received the final submissions on 1 August 2022.

 

4. In accordance with ELRC policy the names of the minor learner’s are withheld.

 

ISSUE IN DISPUTE

5.     I must decide whether the dismissal of the Applicant was substantively fair. Applicant seeks reinstatement.

 

BACKGROUND

6.   The applicant was employed as an educator at the Voerspoed Primary School. He was dismissed on 25 June 2021 after having been found guilty of misconduct at an internal disciplinary hearing. Applicant pleaded guilty to the charges  against him at the internal disciplinary hearing. The charges that he faced read as follows:

Charge 1:

It is alleged that you are guilty of misconduct in terms of section 18(1)(f) of the Employment of Educators Act 76 of 1998 (hereinafter referred to as the Act in that on or about 23 February 2021 you assaulted learner A, a grade 7 learner of Voerspoed Primary School by shouting at him saying “jou hond” and hitting him on his back.

Charge 2

It is alleged that you are guilty of misconduct in terms of section 18(1)(r) of the Act in that on or about 18 April 2021, you assaulted learner B, a grade 7 learner of Voerspoed Primary School by:

a). hitting him with your hand against his back and/or

b). Threw him out of a desk and/or

c). by pulling him by his collar and/or shirt

 

The applicant lodged an internal appeal against the guilty finding and the sanction of dismissal imposed . The MEC: Education dismissed his appeal on 18 July 2021. Applicant then referred an unfair dismissal dispute to the ELRC.

 

7.     In his referral , the applicant states that he represented himself at the internal hearing as his union was not available and that the departmental representative advised him to plead guilty. As he was unprepared, he acceded. In his opening statement at this hearing , he conceded that there were incidents with the learners mentioned in the charges , but that his version of the incidents is different.

  

SUMMARY OF EVIDENCE

Respondent’s Case

8.     Four learners testified as well as the father of one learner.

 

9.   Deon October: He is the parent of learner A. He testified that there was an incident in 2020 when his son was in grade 6 and Mr Jack was his teacher. His son came home one day and complained to his grandfather that Mr Jack had hit him on his back. He (Mr October) spoke with the principal as well as Mr Jack about the complaint. Mr Jack admitted to hitting his son on his back and he apologized. However, when his son was in grade 7, Mr Jack assaulted his son again. This time he did not approach the principal or Mr Jack but instead he reported the matter to the Department. He believed his son as this was not the first time that his son was assaulted by Mr Jack.

 

10. Learner A: He testified that at the time of the incident he was in grade 7 and Mr Jack was his teacher. On the day of the incident, Mr Jack was walking around the class checking on the learner’s books. When Mr Jack got to his book, he said that he had written in the wrong book. Mr Jack then came to him and said to him “jou hond” and he then hit him on his back. He put his head on the desk and began to cry. This is not the first time that Mr Jack hit him.

 

11. Learner C: She is currently in grade 8 at Crystal High School but attended Voerspoed Primary School the previous year. She was in the class when the incident between Mr Jack and learner B occurred. Mr Jack hit learner B on the back and lifted the desk while learner B was still seated at the desk. Learner B fell out of the desk. He then ran out of the class and told Mr Jack that he is “n moffie” and a “druggie”. Learner B cried as he ran out of the class.

 

12. Learner D: She is currently at the Mountview High School but was previously at Voerspoed Primary School . Mr Jack taught them Geography in grade 7. On the day of the incident with learner B, the learner was talking while Mr Jack was explaining the work. Mr Jack lifted the desk that learner B was sitting at, and he fell out of the desk. Learner B cried because he got sore – he swore at Mr Jack as he cried.

 

13. Learner E: She is currently at Mountview High School in grade 8. She was at Voerspoed Primary School the previous year in Mr Jack’s class. On the day of the incident with learner B, Mr Jack was explaining something on the board. Mr Jack got cross as learner B was talking while he was explaining. Mr Jack hit learner B on his back and he then lifted the desk that learner B was sitting at causing him to fall out. Learner B started to cry – he left the class and swore at Mr Jack as he was leaving.

 ANALYSIS

14. The respondent bears the onus to prove that the dismissal was for a fair reason and that a fair procedure was followed in arriving at the decision to dismiss. The procedural aspect of the dismissal is not in dispute. Although the applicant did not attend proceedings on the last day and thus did not present his version , he did have the opportunity to cross examine the respondent’s witnesses and to challenge their evidence. Despite having only one version it is not a given that that version must be accepted. In these circumstances an arbitrator is still  required to weigh the evidence  against known facts, and to assess the credibility of the witnesses , inconsistencies in their testimony, and to arrive at a rational decision.

 

15. All the learners were consistent in their testimony that the applicant did hit learner B ; that he fell out of his desk; that he cried after the incident and that he  swore at the applicant as he left the room. The minor inconsistencies in their evidence  do not have a bearing on the overall veracity of their testimony as they agreed on the main aspect, which was the assault on learner B. It must be borne in mind that these are young children who are testifying about an incident that happened more than a year ago . Minor details can easily be forgotten, but an incident of an assault is more likely to remain ingrained in their memory. The applicant conceded that there was an incident in respect of learner B albeit that he did not present his version of the incident. Given that the learners were credible witnesses, it is more likely that the assault on learner B did indeed take place.

 

16. Likewise, I have no reason to reject the evidence of learner B and his father who both came across as credible and consistent in their versions. I find that the Respondent has discharged the onus to prove that the incidents did happen as alleged in the charges.

 

17. I turn now to the appropriateness of the sanction of dismissal. Section 28(2) of the Constitution of the Republic of South Africa 108 of 1996 states that:

 

“The best interests of all minor children are of paramount importance.”

 

It follows that all decisions that impact on the well being of children must be considered in the context of this overarching principle. Corporal punishment is forbidden in our schools. The National Education Policy Act 1996 states:

 

“No person shall administer corporal punishment or subject a student to psychological or physical abuse at any education institution .”

 

The South African Schools Act 1996 states:

“ No person may administer corporal punishment at a school to a learner. Any person who contravenes this is guilty of an offence, and liable on conviction to a sentence which could be imposed for assault.”

 

Section 5 (3.5), (3.11) and (7.2) of the South African Council of Educators Act 31 of 2000 clearly states that an educator must avoid any form of humiliation , and refrain from any form of abuse , physical or psychological; take steps to ensure the safety of the learner ;behave in a way that enhances the dignity and status of the teaching  profession and that does not bring the profession into disrepute.”

 

18. The applicant has contravened not only the laws of our country, but he is also in breach of the Code of Conduct for educators. In deciding on the appropriateness of the sanction, I have followed the approach of the Constitutional Court in Sidumo & Another v Rustenburg Platinum Mines Ltd. An arbitrator must take into account the totality of the circumstances; consider the importance of the rule that has been breached; consider the reason the employer imposed the sanction of dismissal ; the basis of the employee’s challenge to the dismissal; consider the harm caused by the employee’s conduct ; consider whether training / instruction many result in the employee not repeating the misconduct ; consider the effect of the dismissal on the employee and consider the employee’s service record.

 

19. Clearly, the Respondent has imposed the sanction of dismissal to protect the best interests of the child. It is evident that this is not the first time that the applicant has transgressed. It is unlikely that training and instruction will result in him not repeating the misconduct. The misconduct is in any event too serious given that it impacts on the child’s safety and bodily integrity.  The applicant did not display any remorse during the time that he participated in the arbitration. The impression I got was that he blamed the children for misbehaving, suggesting that they deserved to be punished. Such an educator cannot be trusted.

 

20. In the totality of the circumstances, I find that dismissal is an appropriate sanction.

I make the following award:

AWARD

The dismissal of the applicant, Achmat Jack , was fair

A.Singh-Bhoopchand

Arbitrator