PSES232-18/19MP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT MBOMBELA

Case No. PSES232-18/19MP

In the matter between

MGWENYA ELVIS OSCAR Applicant

And

MPUMALANGA DEPARTMENT OF EDUCATION Respondent

ARBITRATION AWARD

Details of hearing and representation

1. This arbitration hearing is conducted in terms of Section 138 (7) of the Labour Relations Act, 66 of 1995 (the Act). The hearings took place at Mbombela Government Complex Offices, Riverside, Mbombela, Mpumalanga Province, on 13 September 2018, 26 August, and 30 September 2022 at 9:00AM. The applicant, Mgwenya Elvis Oscar was initially represented by Sydney Nkuna from Dube Attorneys and lastly by Simon Mabuza from Lebea & Lebea Attorneys, while the respondent, Mpumalanga Department of Education was in all material times represented by Sifiso Khoza, its official. The proceedings were digitally voice recorded and Skhumbuzo Luthuli was the Interpreter. The Intermediary was Mule Padi. The parties handed in bundles of documents I marked as follows; respondent’s bundle was Bundle MEO 1 and that of the applicant was Bundle MEO 2.

Issues to be decided
2. The nature of the dispute was an applicant’s alleged dismissal related to misconduct. I must decide whether the applicant’s dismissal was fair or not. If unfair, I must determine an appropriate relief.

Background and common cause issues
3. The applicant, Mgwenya Elvis Oscar was employed by the Respondent as an Educator on 18 April 1994. He was earning a salary equivalent to post level 1 (R25 766.00 per month). The applicant was charged with 4 counts of misconduct and the disciplinary hearing was held on 25 August 2017. The applicant pleaded not guilty to the charges. The disciplinary hearing was concluded on 09 October 2017, and he was found guilty on charges 1, 2 and 4. The applicant appealed, and the appeal outcome was issued on the 15 June 2018. He was dismissed on 15 June 2018. The applicant is challenging the substantive fairness of the dismissal. The relief sought by the applicant is retrospective reinstatement.
4. For the identity of the learners, the learners whom it was alleged that the applicant assaulted were named Witnesses X and Y. The other learner who informed the applicant that Witness X was crying was named Z

Survey of the Respondent’s evidence and argument.
Three witnesses testified for the Respondent. The first witness of the respondent was Witness X. Witness X testified under oath that;

5. She was attending school at Lekazi Primary School. During the incident on 04 May 2017, she was seated in front, row 1, facing the direction of the door. The applicant hit her on the head by a broomstick. After hitting her the applicant told her to go and wash the head outside at the tap. The head was painful because there was open wound on it. She went back to class after washing her head. Then after class the applicant told her to take the snacks and other things from his car. The applicant gave her some of those snacks and stock sweets. It was for the first time that the applicant gave her the snacks and stock sweets. When she reached home after school, she showed her mother the wound on the head. Her mother reported the incident to school. She attended the school meeting between her mother and the school, but the applicant did not. After the school meeting her mother took her to the clinic. At the clinic her mother was completing the forms while the Nurse was shaving her head removing hairs around the wound.
6. Under cross examination, Witness X testified that she was in a group when the applicant beat her. She did not see the applicant hitting her, but after the broomstick beat her on the head, she turned her face and saw the applicant with a broomstick. There were some other learners who saw the applicant beating her, but she does not know how many of them. She was not seated closed to the door and it was not necessary for her to move when somebody entered the classroom. The applicant told her to go and wash her head and when she came back the applicant said she did not properly wash her head. Then the applicant went back to the tap with her to assist her in washing her head. The applicant was a good Teacher, however, he used to assault them (learners). At the clinic the Nurse used a razer to shave her hairs around the wound.

The second witness of the respondent was Witness Y: Witness Y testified under oath that;

7. He remembered the incident which happened when he was still in primary school. It was in 2017, but he does not remember the date and month. The applicant called him with his friends to the office. The applicant asked them why they like to propose girls. There was a quarrel between the applicant and them and the applicant slap him with the applicant’s open hand on his face. After assault he cried and went to the classroom. The slap was painful. The applicant then called him and gave him snacks. The applicant apologized for what he (applicant) did to him (learner).
8. Under cross examination, Witness Y testified that there were three (3) other learners when the applicant slapped him. There were in the staff room where the applicant was seated with female teachers, after break when the applicant slapped him. The applicant was a bad teacher because the applicant got angry on small things. He does not hold grudges with the applicant. He reported the incident to his mother at home because his mother saw some bruises on his face.

The third witness of the respondent was Samkelisiwe Thobela Magagula. Samkelisiwe Thobela Magagula testified under oath that;

9. Witness X was her biological daughter. She received a call from home informing her that Witness X was injured. She went home the following day and at home they explained to her what had happened at school the previous day. She then went to Witness X’s school. Upon arrival at school, she showed them the wound on the head of Witness X, and she wanted an explanation from the school. The school told her that they do not know what happened. She was then advised to take a picture of her daughter’s head. After that she left with Witness X to the clinic. At the clinic they gave her a form (J88) to complete and the referral letter as per page 23 of Bundle MEO 1.
10. Under cross examination, Samkelisiwe Thobela Magagula testified that Witness X told her that she (Witness X) was assaulted by the applicant. Witness X told her that they were in a group work when the applicant tried to stop them from making noise. Witness X never told her that she (Witness X) saw the applicant hitting her, but when she (Witness X) turned around she (Witness X) saw the applicant with a broom. There were other learners who saw the incident but refused to come and testify for the respondent. The applicant never took Witness X to the staff room and explain what had happened to Witness X. She was given a referral form by the clinic which she did not complete. She did not go to the hospital, Rob Ferreira because the hospital was going to compel her to complete the form (J88) which would compel her to open a criminal case against the applicant and she did not want to do that. No apology was made by the applicant.

Survey of the Applicant’s evidence and argument.
One witness, the applicant himself testified. Mgwenya Elvis testified under oath that;

11. He was a Teacher of Grade 5. On 04 May 2017 he had double periods, first and second periods. During the second period he requested the learners to arrange themselves into groups. When learners were arranging themselves into groups, he was trying to assist the boys at the corner of the class who were naughty. When he came back from the corner of the class one learner, named Z for the purpose of identity came to him and informed him that Witness X was crying. When he looked at Witness X, she was lying on the desk crying and next to her (Witness X) there was a broom stick lying there. He took the broom stick and asked Witness X as to what happened. He then saw that Witness X was wounded and sustain injury. He asked the other learners as to who could have assaulted Witness X and the other learners said they do not know. He took the broom stick to where it was usually put while Witness X went out to wash her head. When Witness X came back, he saw that Witness X did not wash her head properly and he went back to the tap with Witness X to try and assist her to wash her head so that he could see how big the wound was. While he was busy assisting the learner with the washing of the wound a bell rung indicating the end of his period. Witness X then left to the other class. He left his packet of sweets in the class, and he did not want to disturb the Teacher who was already in class because the teacher was strict. During break time he saw Witness X coming to him in staff room carrying his items and the files. He thanked Witness X and gave her stock sweets. He did not assault Witness X on 04 May 2017.
12. On 04 May 2017 he never assaulted Witness Y. He left Witness Y in class that day. All the allegations leveled against him were fabricated. Some people might be jealousy for him selling sweets at school. The assault of Witnesses X and Y were never reported to the police. If he was the parent of Witnesses X and Y, he would have reported the incidents to the school management and the police.
13. Under cross examination, Mgwenya Elvis testified that when he is in the classroom, he is the parent of the learners and manager. The other teacher who entered the classroom after him was the parent and manager of the learners and should have reported the incident involving Witness X. The incident happened during his time in the class, but not before his eyes. The learner, Witness X was not bleeding when he entered the class on that day, 04 May 2017. He was the parent of Witness X during the second period on that day. What he did as a parent was to assist Witness X to wash her head. He did not report the incident because the other teacher entered the class. There was no one behind Witness X in the class. While he was busy teaching the door opened, and the broom stick might have fell into the learner. He never had any meeting with the principal about the incident. It was a wooden broom stick with bolts. He thought it could have been the bolts that could have caused the injury of Witness X. He never gave anything to Witness Y. He never assaulted Witness Y that was why the incident was not reported to the principal and the police.

Analysis of the evidence and arguments
14. In terms of Section 192 (1) of the Labour Relations Act, 66 of 1995 as amended, the onus is on the employee to establish the existence of a dismissal. Once that has been established, sub-section 2 provides that the employer must prove the fairness of the dismissal. The applicant was charged with four counts of misconduct, but found guilty on charges 1, 2 and 4 which were as follows; Charge 1 was that he committed misconduct in terms of section 17 (1) (d) of the Employment of Educators Act, 76 of 1998 as amended in that on or about the 4th of May 2017 he seriously assaulted with intention to cause serious bodily harm a Grade 5E learner by the name of Witness X by hitting her on the head with a broomstick causing her to bleed, Charge 2 was that he committed misconduct in terms of section 18 (1) (q) of the Employment of Educators Act, 76 of 1998 as amended in that he failed to comply with or contravened the South African School Act, 84 of 1996 by administering corporal punishment to Witness X and Charge 4 was that he committed misconduct in terms of section 18 (1) (r) of the Employment of Educators Act, 76 of 1998 as amended in that on or about the 4th of May 2017 while on duty, he assaulted a Grade 5E learner by the of Witness Y. It was common cause that the applicant was dismissed on 15 June 2018.
15. The employee’s testimony in the main was that the applicant assaulted Witnesses X and Y on 04 May 2017. Witness X was hit on the head from behind by a broomstick and when she turned her face back, she saw the applicant carrying a broomstick with him. Witness X sustained injury on the head, and she was taken to the clinic by her mother the following day. There was a wound on the head of Witness X and the clinic referred her to hospital, but the mother did not take her to the hospital. The reason being that the mother knew that the hospital would compel her to open a criminal case against the applicant and she did not want to do that. The applicant did not report the incident to the school management.
16. Regarding Witness Y, the respondent’s testimony was that the applicant assaulted Witness Y with the applicant’s open hand in the staff room. Witness Y was called to the staff room with his friends, and he was the only one assaulted by the applicant after a quarrel between the applicant and them.
17. The applicant’s testimony was in the main that he did not assault Witness X. What happened on 04 May 2017 was that during his second period he requested the learners to arrange themselves into groups. When he was finished assisting a boys’ group, he was informed by Z that Witness X was crying. Indeed, when he looked at Witness X she was crying lying on the desk. He then saw a broomstick lying down next to Witness X. He suspected that Witness X could have been hit by that broomstick, because there was nobody behind Witness X. He assisted Witness X to wash the wound on the head and did not report the incident to the school management because he was no longer in charge of the classroom. Another teacher had already in class, and it was supposed to be that teacher who should have reported the incident to the school management. The applicant went further to testify that he did not assault Witness Y. He left Witness Y in class on 04 May 2017. He suspected that people were jealousy of him selling sweets at school and as such they fabricated stories about him assaulting Witnesses X and Y.
18. Based on the testimony of both the respondent and the applicant, I deduced that the applicant could have assaulted Witness X. The evidence of Witness X carried more weight than that of the applicant. Witness X testified that she did not see the applicant hitting her, but when she immediately looked back, she saw the applicant with a broomstick which hit her. This evidence was corroborated by the mother of Witness X who testified that Witness X told her that Witness X and other learners were making noise in the classroom when the applicant hit her with a broomstick. It is my belief that the applicant could have been trying to stop the learners from making noise when he hit Witness X with a broomstick. The applicant was behind Witness X when the incident happened. The evidence of Witness X was consistent right away from the disciplinary hearing. She put the same version. The other issue which makes me to believe the testimony of the respondent was the fact that the applicant did not report the incident to the school management. Regardless of the end of his period and him no longer in class, the applicant should have reported the incident to the school management, if indeed he did not assault Witness X. The applicant testified that Witness X was not hit, but a broomstick fell on top of her head and caused injury. It is unbelievable that a falling broomstick could have caused such injury on the head of Witness X. If that was the case, the applicant could have rushed to the school management and report the incident. The other learners were going to bear him witnesses to the school management because they would have seen the broomstick falling on top of Witness X’s head. The applicant assisted Witness X to wash the wound on her head, but after that he failed to alert the school management about the incident until the following day when the mother of Witness X came to school. Considering the above, I find that the applicant is on the balance of probability guilty of charges 1 and 2.
19. The applicant disputed the evidence of Witness Y by only testifying that he did not assault Witness Y and people were jealousy of him selling sweets at school. Witness Y testified that the applicant called him and other learners to staff room and a quarrel ensued between the learners and the applicant. Then the applicant slapped Witness Y. The quarrel was caused by the allegation that the applicant put to the learners that they were found of proposing girls. Those learners were at Grade 5 and their ages were around 11 years old. It is unbelievable that the applicant could talk about the proposal of girls with a Grade 5 learner who was 11 years old. Even though the applicant did not challenge the evidence of Witness Y, what Witness Y testified could not be relied on. The applicant would have assaulted all of them and not Witness Y alone because the quarrel involved all of them. It is therefore my belief that the applicant did not assault Witness Y, I give him a benefit of doubt. Considering that, I find on the balance of probabilities that the applicant is not guilty of charge 4.
20. Schedule 8, item 7 of the Labour Relations Act, 66 of 1995 states that “any person who is determining whether a dismissal for misconduct is unfair should consider-
(a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to the workplace; and
(b) If a rule or standard has been contravened, whether or not-
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware or could reasonably expected to have been aware of the rule or standard
(iii) the rule or standard has been consistently applied by the employer and
(iv) dismissal was an appropriate sanction for the contravention of the rule or standard”.
The applicant was charged and found guilty of contravening sections 17 (1) (d) and 18 (1) (q) of the Employment of Educators Act, 76 of 1998 as amended. The applicant knew or ought to have known that learners should not be assaulted and administering of corporal punishment to learners is prohibited in terms of section 10 of the South African Schools Act, 84 of 1996. In De Beers Consolidated Mines v CCMA & others (2000) 21 ILJ 1051 (LAC), the court held that “where the employee had broken the high degree of trust placed on him or her, an employer was legitimately entitled to say to itself that the risk of continuing the employment relationship was unacceptably great,” Since dismissal is not a punishment but a response to risk management in the affected enterprise, factors relevant to the risk of future instances of misconduct in the future, and the risk of harm to the enterprise as a result of such misconduct should be considered”. The charge of administering corporal punishment to a learner is a very serious misconduct and it goes into the heart of the trust relationship between the employer and the employee. It would be difficult for the respondent to trust the applicant after committing that misconduct. It is, therefore, my belief that there is no longer trust relationship between the applicant and the respondent. In these circumstances, dismissal would be an appropriate sanction.
21. In view of the above, it is therefore my finding that the respondent has on the balance of probabilities proved that the applicant was guilty of charges 1 and 2. Having found the applicant guilty as charged in terms of section 17(1)(d) of the Employment of Educators Act, 76 of 1998 as amended, the sanction of dismissal is mandatory. The Educators play a role of parents at school. They must ensure that learners are educated. The sanction of dismissal imposed by the respondent is appropriate in these circumstances. Therefore, the dismissal of the applicant was, accordingly substantively fair.

Award
22. I find that the dismissal of the applicant, Mgwenya Elvis Oscar was substantively fair.
23. The applicant’s dispute is hereby dismissed.

VICTOR MADULA
ELRC PANELIST
16 October 2022