ELRC1053-21/22FS

Panellist: Khuduga Tlale
Case Reference No.: ELRC1053-21/22FS
Date of award: 30 January 2023

In the matter between:

Letheba Kleinbooi Mokoena Applicant

And

Department of Education – Free State Respondent

ARBITRATION AWARD

Details of hearing and Representation

1. The arbitration hearing between Mokoena, KL (“the Applicant”) and Department of Education – Free State (“the Respondent”) was held on 20 October 2022 and concluded on 17 January 2023 at the Respondent’s Offices in Sasolburg. The Applicant appeared in person and Adv. C Kilowan, represented him, and Mr. V Gubuza, Deputy-Director: Dispute Management, represented the Respondent. The Council appointed Ms. Mpotseng Moloi as an interpreter.

2. These proceedings were conducted in English and were manually and digitally recorded. The parties agreed to submit the heads of arguments in writing on Tuesday, 24 January 2023.

Issues to be decided

3. The issue to be decided is whether the Applicant dismissal was both procedurally and substantive fair.

Background to the dispute

4. The Applicant was employed by the Respondent on 01 January 1989 as an Educator. He was promoted to the position of a Deputy-Principal on 01 January 2012 at Phirihadi Primary School. The Applicant acted in the position of a Principal for the period 01 January 2018 to 28 February 2019. The Applicant taught Life Orientation & Creative Arts for Grade 7.

5. The Applicant was charged with six (6) counts of misconduct relating to failure to invigilate Grade 5C during June 2019 examinations, capturing of learners LO Grade 7 examination marks before the commencement of the June examinations, absenteeism, intimidation words, terminating the contracts of employment of the food handlers and assaulting a colleague.

6. The Applicant was informed about the allegations against him. He was served with the notice of the disciplinary enquiry (“the enquiry”). He attended the enquiry and he represented himself. He was given an opportunity to state his case. He was found guilty and the sanction of a dismissal was imposed on him on 08 June 2021. He was notified about the final decision of the enquiry in writing.

7. He lodged an appeal and the dismissal was confirmed on 25 January 2022. Even though the Applicant received the outcome of the appeal on 25 January 2022, the Respondent terminated his service with effect from 08 June 2021. At the time of his dismissal, he earned R39 058, 58, per month, which was paid into his bank account and the bank account is still active. The Applicant referred this alleged unfair dismissal dispute to the Council. The certificate of non-resolution was issued and the dispute was referred for an arbitration. The parties submitted bundle of documents which were marked as bundle “A” and “R”. Both parties conducted a pre-arbitration meeting and they both signed the minutes.

Survey of Evidence

Respondent

First Witness: Mr. Thabo Joseph Mofokeng

8. The witness testified under oath that the Respondent employed him as Financial Clerk at Phirihadi Primary School and he was the member of the School Governing Body (“SGB”). The SGB employed the food handlers and they were paid stipend. Ms. Mokhele and Ms. Thekiso were found by the Applicant as the acting principal with stolen foods. The Applicant dismissed them with immediate effect and reported this matter later to the SGB. Document “R10-R11” was the minutes of the meeting in relations with this matter on 31 July 2018.

9. The Applicant did not follow proper procedure when he dismissed the food handlers as per “R11”. They were dismissed without a fair procedure and without a fair reason. The food handlers referred their unfair dismissal dispute to the CCMA and the award was in their favour and they were compensated the total amount of R21 400, 02, as per “R17”.

10. Under cross-examination he stated that the Applicant as the principal was the accounting officer. It was the principal’s responsibility to make sure that the school money was accounted for. He confirmed that the food handlers were found with stolen food and it was a serious conduct. Document “R10-R12” was the minutes of the SGB meeting. The food handlers were dismissed by the Applicant prior to the meeting on 31 July 2018. He confirmed that Mr. Zamla initiated that the dismissal letters must be written to the food handlers. He confirmed that the food handlers approached the SGB to clarify something and were given an opportunity to state their case. It was recorded that the food handlers stole the learners’ food.

11. He confirmed that the SGB took a decision that the food handlers’ contract of employment be terminated and they would be paid their notice pay. The food was stolen on 25 July 2018 and they were dismissed immediately.

12. Under re-examination he stated that the food handlers’ conduct was serious but did not warrant to be dismissed without following proper procedure. The food handlers were dismissed verbally by the Applicant, as an acting Principal.

Second Witness: Ms. Nthateng Johannah Moeketsi

13. The witness testified under oath that the Respondent employed her as a head of department at Phirihadi Primary School. She was responsible for curriculum for intermediate and senior phases. Her role was to make sure that the examination was written. She held a staff meeting in relations with the 2019 June examination and they talked about the invigilation processes. The Applicant was not part of the meeting. After the meeting, she drafted the time-tables for both examination and invigilation for adoption as per “R25”. She was familiar with the time-table as per “R21” and it was developed from time-table as per “R25”.

14. She went to the Applicant office to hand over the time-table and the Applicant said that she must put it on the table. The Applicant was aware of 2019 June examination and invigilation time-tables and he was also aware of his role during the examination. On 31 May 2019, while monitoring the examinations, she noticed that Sesotho Grade 5C had no invigilator. She requested the class teacher to remain behind, while going to inform the Principal. She reported this matter to the Principal and, the Principal went to the Applicant office. She had no knowledge about their discussion.

15. Under cross-examination she stated that the Applicant was employed as the Deputy-Principal at the school. She was given the instruction by the Principal to draft the 2019 June examination time-table. She confirmed that the Applicant did not attend the staff meeting. The notice of the meeting was placed on the notice board. She confirmed that she took the time-table to the Applicant’s office. She confirmed that she did not take the register along when handing over the time-table to the Applicant in order for him to acknowledge receipt. She had no evidence to prove this allegation except to say, she put the time-table on the Applicant’s table. She denied the allegation to say the Applicant only became aware of the time-table during the enquiry on 01 April 2021.

16. She did not meet with the Applicant after the 31st of May 2019. The Principal informed her that the Applicant said he would not conduct the invigilation. The Principal informed her that the Applicant said “he does not feel like”. She was not present when the Applicant uttered those words. It became clear to her that the Applicant was well aware of the invigilation schedule. She maintained that she took the invigilation time-table to the Applicant.

17. Under re-examination he stated that the educators did not sign for the time-table because it was distributed after the meeting.

Third Witness: Mr. Paulus Ramokotlane Mosholi

18. The witness testified under oath that the Respondent employed him as a factotum at Phirihadi Primary School. He went to the Principal’s office to request permission to speak with the Applicant. Permission was granted and he went to the Applicant office to speak with him. When entering his office, he told him that if he had anything troubling him, he must allow the learners to continue with the school work. The Applicant replied by saying he was disrespecting him. The Applicant shouted and assaulted him.

19. The Principal came and she said no to the Applicant. The Principal further said that this was not supposed to happen. The Applicant pushed him and he fell down. The Applicant was on top of him and punching him. All these happened in the school administration block during school hours.

20. Under cross-examination he confirmed that he was employed as a factotum and he was not part of the school management. The Applicant as the Deputy-Principal was his senior. He had the authority to speak to him because they belong to the same union and it does not want infighting at the workplace. He confirmed that they both employed by the Respondent. The Applicant was once told to reprimand him if he saw any unacceptable behavior from him.

21. The Applicant said that the learners must not write and that did not sit well with him. The Applicant had been at the school the longest. The Applicant requested him to leave his office and he replied by saying he would only leave after resolving this matter. He denied the allegation that he slapped the Applicant. It does not make sense to request for a permission and afterwards slapped him. The Applicant did not push him out of his office but he punched him.

22. The Applicant sat on top of him while punching him and he opened a criminal case against him. He got J88 and he went to the medical doctor but he did not receive the form back from the police. The Applicant also opened a criminal case against him. Document “A33-A37” was the mediation agreement and he was aware of its content.

23. Under re-examination he stated that document “A34-A37” was the mediation agreement.

Fourth Witness: Ms. Nozizwe Thoka

24. The witness testified under oath that she was employed as a Principal of Phirihadi Primary School from April 2019 to June 2022. She is currently the Principal at Nkgopoleng Secondary School. On 16 May 2019 they had a staff meeting to discuss the 2019 June examination management including the invigilation. The Applicant was not attending the school management and staff meetings. Ms. Moeketsi was responsible for 2019 June examination and she requested her to provide the Applicant with the invigilation time-table as per “R25”.

25. On 25 May 2019, Sesotho Grade 5C had no invigilator and the Applicant was supposed to invigilate as per “R23”. She went to the Applicant’s office to find out whether he was aware about the invigilation. The Applicant replied to her by saying, she must leave him alone and she left his office. The Applicant knew about the invigilation time-table. If he did not know about it, he could have said he was not aware of it. They requested other educator to invigilate that class.

26. The Applicant was teaching Life Orientation (“LO”) and Creative Arts. During 2019 June examination time-table, LO was supposed to be written on 11 June 2019 as per “R26”. On 05 June 2019, she saw the Applicant busy on the school computer while on her way to the bathroom. On her return from the bathroom, she went to her office, opened her laptop and looked at the SA-SAMS system (“the system”). She found out that the Applicant was busy entering the learners’ marks on the system prior to the learners’ writing the examination. This system used by the Respondent for the schools to enter the learners’ examination marks.

27. The Applicant knew about the Respondent policy for the learners’ to write June examination. The Applicant learners’ did not write 2019 June examination. Document “R24” was written by Ms. Mosethe, head of life skills and LO. The Applicant entered the learners’ marks prior to the learners’ writing the LO examination on 11 June 2019. She had no knowledge were the Applicant got the learners’ marks. He later said that he entered the marks of the learners’ activities. The Applicant conduct amounted to an act of fraud.

28. It was the responsibility of every educator to inform the Principal immediately about his/her absence from work as per “R27”. The Applicant did not apply for leave in advance or inform her about his absence. On his return to the school, he completed the leave form applying for family responsibility leave and the leave was not approved. Document “R29” was the extract from the WhatsApp message from the Applicant. She got this message from the Circuit Manager, Mr. Masike. The words in the WhatsApp message was from the Applicant and directed to her. Those words were intimidating and she felt bullied by the Applicant. She knew nothing about the food handlers because she only arrived at the school in April 2019.

Presentation of Video Footage

29. The video footage was presented to the proceedings by the witness, Ms. Nozizwe Thoka. The footage showed the Applicant argued with someone about why he assaulted Mr. Mosholi. The footage showed the Applicant threaten to kick someone who was talking with him. The Applicant was standing on at the door of the staff room while looking angry and threatening to assault. The footage showed the Applicant on top of someone and arguing. The Applicant was heard saying “what he want in his office”. Someone was heard saying “do not assault Mr. Mosholi”. The Applicant said he would beat up Mr. Mosholi. Both parties were given an opportunity to ask Ms. Thoka questions regarding this footage.

30. The witness testified that this incident started when the Applicant refused to allow the Grade 7 learners’ to write 2019 LO June examination. Mr. Mosholi was having a child at the school. Mr. Mosholi asked the Applicant why he was not allowing the learners’ to write examination. She was in her office when she heard a noise from the Applicant office. She stood up and went to his office. She stood between them, the Applicant pushed her aside and he punched Mr. Mosholi. Mr. Mosholi fell down and the Applicant set on top of him while punching him.

31. The Applicant followed Mr. Mosholi and promised to beat him into pieces. She tried to reprimand the Applicant not to assault Mr. Mosholi but all in vain. The Applicant continuously saying “O ba tlang offising ya ka” meaning in English “what he want in his office”. Mr. Mosholi was assaulted for asking why the learners’ were not allowed to write an examination.

32. Under cross-examination she confirmed that the Applicant was not attending the school management and staff meetings. She stated that they were not working well together. She confirmed that the incident happened in the years 2018 and 2019 but the first hearing was on 07 April 2021. She was not aware that the Applicant was responsible for the examinations prior to her arrival at the school. She confirmed that the Applicant was not part of the meeting that discussed the 2019 June examination. She denied the allegation to say the Applicant was not aware of the invigilation time-table.

33. She confirmed that the documents sent to the educators in the form of a circular and they supposed to acknowledge receipt of the said document. The examination time-table must be sign by the Principal and it must have a school stamp. She stated that the examination and invigilation time-tables were one documents and were signed at the last page as per “R27”. She stated that there are minutes of the staff meeting that adopted 2019 June examination time-table but they were not in her possession. They were following the Respondent examination and they looked a like with the school time-table as per “R25-R27”.

34. She had no Respondent time-table in her possession to support her claim. She was not present when Ms. Moeketsi left the invigilation time-table on the Applicant’s table. She had no knowledge whether the Applicant acknowledge receipt of the invigilation time-table. Ms. Moeketsi did not report back to her whether or not she gave the Applicant the time-table. She maintained that she went to the Applicant office to ask him about the invigilation but he replied by saying “leave me alone”.

35. She confirmed that the Applicant entered the marks of 2019 LO June examination prior to the learners’ writing examination. She was not sure whether the marks were entered on 04 or 05 June 2019. Document “R24” was the letter in relation to the entering of learners’ marks by the Applicant. Ms. Mosethe’s letter stated that the marks were entered into the system on 04 June 2019. The system had a particular date of the activity and when the information entered prior to that date, the system automatically will show the date of the activity, not the date the information was entered. She wrote this allegation on the school log book. The Applicant was supposed to allow the learners’ to write the examination prior entering the marks.

36. The school clerk said that the Applicant did not report his absence. Document “A28” was the summons for the Applicant to appear at the Court and it was the first time she saw this summons. On 16 May 2019, the Applicant was given the letter and he refused to acknowledge it. She denied the allegation to say she gave the Applicant the folded letter. This WhatsApp message came to her attention through the circuit manager, Mr. Masike as per “A29”.

37. She confirmed that she was not working at Phirihadi Primary School during the food handlers’ matters. She stated that she was not with Mr. Mosholi when he entered the office of the Applicant. Mr. Mosholi asked the Applicant why she was not allowing the learners to write examination. She did not see Mr. Mosholi slapping the Applicant. The Applicant pushed Mr. Mosholi out of his office to another office. Mr. Mosholi fell down and the Applicant sat on top of him. She heard the noise, she went out of her office and she requested the Applicant to calm down. She was aware that Mr. Mosholi opened a criminal case against the Applicant. Mr. Mosholi told her later that the Court case was withdrawn. She was present when the Applicant punched Mr. Mosholi. She continuously asked the Applicant not to beat Mr. Mosholi.

38. Under re-examination she stated that the Applicant knew about the examination. The signed time-table was an instruction to the educators’ but the Applicant failed to carry out that instruction. The Applicant did not apply for leave prior.

Applicant

First Witness: Mr. Kleinbooi Letheba Mokoena

39. The witness testified under oath that he was an Applicant in this matter and she started working at Phirihadi Primary School in January 1989. He was promoted to the positions of the head of department and deputy-principal at the same school. He was not invited to attend the examinations management meetings. Ms. Moeketsi did not come to his office to give him the time-table. The school disseminate information to the educators in the form of a circular and educators were required to acknowledge receipt of the information. He did not receive the examination and invigilation time-table of 2019 June examinations.

40. He only saw the time-table for the first time during the enquiry. He denied the allegation to say the Principal came to his office to ask him about the invigilation of Grade 5C. He denied the allegation to say he said to the Principal “leave me alone”. He entered the learners LO marks into the system on 12 June 2019 not on 04 June 2019 as alleged by the Respondent. He stated that the learners wrote LO 2019 June examinations and scripts were marked.

41. On 23 May 2019 he informed the school administration clerk that he would not be coming to school the following day because of court appearance. He was absent at work on 24 May 2019. When he reported for duty on Monday, 27 May 2019, the school administration clerk informed him that the Principal said his leave type would be special leave. Document “A26” was his application for leave and he was paid for the said day. The intention of the WhatsApp message to Mr. Masike was to request his intervention about the correspondence he received at the school.

42. On 16 May 2019, the Principal wanted him to acknowledge receipt of the folded letter without reading it. The Principal refused to give him the copy of the letter. He became aware that the WhatsApp message was forwarded to the Principal during the enquiry. He did not threaten the Principal with violence prior to this WhatsApp message. He received a complaint from the parents that the learners were not provided with food at the school. On 25 July 2018, three learners came to his office to complaint that they were not provided with food. He immediately called the meeting with the food handlers and NSP Coordinator, Ms. Mcwega.

43. He informed them about the complaint he received and he warned them again not to steal learners’ food. He further asked them why the learners were not provided with food. One of the food handlers, Ms. Malefu Mokoena said, they are stealing the food. She further said that even if he could go to their homes, he would find the stolen food. They went to their homes and found the food as per “A30”. On his arrival at the school, he called three school management team, SGB teachers’ component and food handlers. He showed them the stolen food by the food handlers. He informed them that he needed to have a meeting with the entire SGB.

44. On 25 July 2019, he met with the SGB chairperson and treasurer and he showed them the stolen food. On 31 July 2019, they had SGB meeting and during the meeting the food handlers admitted the offence. The food handlers requested the school not to involve the police. After the meeting, he informed the circuit manager, Mr. Masike about the incident. It was the SGB that took a decision to terminate the contracts’ of the food handlers, not him. Document “R10-R11” was the minutes of the SGB meeting held on 31 July 2019.

45. On 08 November 2019 at around 09h00, Mr. Mosholi came to his office from the Principal’s office. Mr. Mosholi pointed finger at him saying, if he does not want to work, he must take his belongs and leave the school premises. Mr. Mosholi further said that there are educators who could do the work. He requested him to leave his office because he was busy marking the learners scripts. Mr. Mosholi replied by saying if he does not want to leave, they could go to the street and he could show him his true colors.

46. He stood up and approached Mr. Mosholi. He requested him to go out of his office. While talking to him, Mr. Mosholi slapped him and he pushed him. Mr. Mosholi slipped and he fell down. He drag him on the floor because he was angry and he wanted to fight. He confirmed that he viewed the footage of the alleged incident. The footage does not show him punching Mr. Mosholi. He later said that he did not drag Mr. Mosholi but pushed him towards Ms. Mosethe’s office and Mr. Mosholi was not injured. They both opened criminal case to each other and they requested the case to be mediated.

47. Under cross-examination he confirmed that he was not provided with the invigilation time-table. The invigilation time-table was authentic because it was signed by the Principal and the signed time-table was the instruction to the educators. He was the deputy-principal in the year 2019 and his role was to support the Principal. He maintained that there was no 2019 June examinations time-table at the school. Ms. Moeketsi did not leave the time-table in his table as alleged. It was not true that the Principal came to his office to ask him about the invigilation of Grade 5C. He denied the allegation to say he was given an instruction to invigilate 2019 June examinations.

48. He confirmed that he entered the learners’ marks in the system on 12 June 2019 not on 04 June 2019 as alleged. On 24 May 2019, he reported his absence from work. His absence was not approved prior to the 24th May 2019. The practice at the school was that they report their absence to the school administration clerk. The school administration clerk was the one who completed his leave form on Monday, 27 May 2019. The WhatsApp message was directed to Mr. Masike not to the Principal. This message had no names of people.

49. He maintained that it was the SGB that terminated the contracts’ of the food handlers. No enquiry was held against the food handlers prior to their dismissal and they were dismissed on 31 July 2018. He denied the allegation to say he dismissed food handlers on 25 July 2018. The food handlers did not report for duty from 26 to 31 July 2018. The SGB chairperson and treasurer were the ones who told the food handlers not to report for duty from the 26th July 2018. The SGB then took a decision to terminate their contracts’ on 31 July 2018. He denied the allegation to say it was him who terminated the contracts’ of the food handlers. The conduct of the food handlers was serious and warranted a summarily dismissal.

50. He denied the allegation to say he dragged Mr. Mosholi. He only pushed him towards Ms. Mosethe’s office and he slipped. He sat on top of Mr. Mosholi trying to calm him down. He confirmed that there were voices heard on the footage saying stop assaulting him. He denied the allegation to say he assaulted Mr. Mosholi. Setting on top of someone was not an assault. He confirmed that he said Mr. Mosholi was undermining him and he would deal with him. He confirmed that there were many people at the school administration block when this alleged incident happened.

51. Under re-examination he stated that no one informed him that he entered the wrong learners’ marks in the system. He did not think of assaulting, killing or threatening the Principal when he sent the WhatsApp message to Mr. Masike.

Survey of Arguments

Respondent

52. The Respondent representative stated that the Respondent has proven on balance of probabilities that the Applicant committed an act of misconduct. The Applicant did nothing to enquire about his role during 2019 June examinations. The Applicant did not dispute that on 04 June 2019 he was working on the school computer. The Applicant confirmed that he did not report his absence to his immediate supervisor. He only apply for leave on his return to work.

53. The Applicant confirmed that he was the author of the WhatsApp message to Mr. Masike. The message was intimidation to Ms. Thoka and the Applicant undermined her authority at the school. It was clear from Mr. Mofokeng’s testimony that it was the Applicant who dismissed the food handlers. Mr. Mofokeng’s testimony corroborated with the SGB minutes of the 31st July 2018. The Respondent proved that the Applicant assaulted Mr. Mosholi. The Applicant was the senior manager at the school level and he should be an exemplary. The trust relationship between the Applicant and the Respondent had broken beyond repair.

Applicant

54. The Applicant representative did not submit the written heads of arguments as agreed.

Analysis of evidence and arguments

Introduction

55. In every alleged unfair dismissal dispute, the Applicant party is required to establish the existence of the dismissal. Once that is done, then the evidentiary burden of proof shifts to the Respondent party who is required to prove the alleged dismissal was fair. In this matter, it is a common cause that the Applicant was dismissed and his dismissal was due to misconduct, therefore, the Applicant established the existence of his dismissal. In discharging the onus, the Respondent led the evidence of four (4) witnesses.

Procedural fairness

56. No evidence was led during the proceedings in relations to the procedural issues even though the parties said I must determine whether the Applicant dismissal was procedurally fair. It is common cause that the enquiry was held against the Applicant. The Applicant was found guilty of misconduct and he was dismissed on 08 June 2021.

57. According to schedule 8, item 4(1) of the Labour Relations Act, the employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee.

58. The Applicant was notified about the allegations against him as per “A21-A23”. The Applicant attended the enquiry and he was given an opportunity to state his side of the story. I find the Respondent complied with a fair procedure before dismissing the Applicant; therefore, the Applicant’s dismissal was procedurally fair.

Substantive fairness

Whether the Applicant refused to invigilate Grade 5C?

59. The Applicant was charged for contravening section 18(1)(i) of the Employment of Educators Act, 76 of 1998, in that on the 31st May 2019, he failed to carry out a lawful order without just or reasonable cause when he refused to invigilate the Sesotho Grade 5C class as per adopted invigilation time-table. The Applicant denied the allegation against him.

60. The Respondent was expected to prove that the Applicant was aware of the adopted invigilation time-table and he failed to comply with it. It is the Respondent evidence that any information is circulated to the educators in a form of a circular and educators will be required to acknowledge the receipt. In this matter, the Respondent failed to prove that the Applicant was given the invigilation time-table and he acknowledged receipt of it. The Respondent further failed to prove that the invigilation time-table was adopted. I, therefore, find the Respondent failed to discharge the onus to prove the said allegation against the Applicant.

Whether the Applicant entered the learners’ marks without writing examination?

61. The Applicant was charged for contravening section 18(1)(q) of the Employment of Educators Act, 76 of 1998, in that on the 4th June 2019, while on duty, he conducted himself in an improper, disgraceful or unacceptable manner when he punched the marks for Life Orientation Grade 7 into SA-SAMS without learners, writing the examination for the learning area concerned. The Applicant denied the allegation against him.

62. It is important to note that a mere suspicion is not enough to satisfy the test of proof on a balance of probabilities. It is expected from the Respondent to adduce evidence to prove that the Applicant committed misconduct as alleged. The Respondent was required to submit those learners’ marks that were entered into the system but they failed to do so. The issue of whether or not the learners’ wrote Life Orientation examination is not relevant because he was not charged and dismissed for not allowing the learners’ to write examination. The Respondent failed to prove that the Applicant gave the learners’ fraudulent examination marks. I, therefore, find the Respondent failed to discharge the onus to prove the said allegation against the Applicant.

Whether the Applicant was absent?

63. The Applicant was charged for contravening section 18(1)(j) of the Employment of Educators Act, 76 of 1998, in that on the 24th May 2019, he absented himself from work without permission. The Applicant denied the allegation against him.

64. According to John Grogan in his work: Dismissal Juta & Co 2004 at page 108: “The elements of the offence of absenteeism are that the employee must have been absent from work at a time when the employee was contractually obliged to render service. Some disciplinary codes add a further element to the offence: employees must have failed to inform the employer immediately of the reason for the absence”. In general, employees have a fundamental duty to render service and their employers have a commensurate right to expect them to do so. This flows from the very contract of employment itself. In order to be able to discharge this fundamental duty an employees must be in attendance at the agreed workplace during agreed times and if they failed to be so in attendance the onus is on them to provide an explanation for their absence.

65. I need to mention that the Applicant was not charged for failing to inform his supervisor about his absence or not applying for leave in advance. He was charged with misconduct for been absent from work without permission. The onus was on the Applicant to provide a reasonable explanation for his absence on the day in question. It is the Applicant evidence that he was absent from work on 24 May 2019 because he has to appear in the court of law and he submitted prove as per “A28”. It is further the Applicant undisputed evidence that he informed the school administration clerk about his absence and on his return to work, he completed the leave form and he was paid for the day in question.

66. The Applicant has a valid reason for being absent on the day in question because he has to appear in the court of law. The Applicant’s absence was justifiable and reasonable. I therefore, conclude that the Applicant did not breach the Respondent’s rule.

Whether the Applicant message was intimidating?

67. The Applicant was charged for contravening section 18(1)(u) of the Employment of Educators Act, 76 of 1998, in that on the 8th June 2019, he sent a WhatsApp message to Mr. Masike MN, Circuit Manager, with the following intimidating words directed to Ms. Thoka NS, Principal at his school. The Applicant denied the allegation against him. The Applicant sent the following alleged intimidating message as per “R20”; “You must tell your so called newly appointed principal at Phirihadi school to stop writing me letters of which she does not want me to know their contents or be provided with copies. She must also refrain from asking admin clerks and educators to sign those letters as witness that I refused to acknowledge those letters. She must deal with her own frustrations and challenges and do what is required of her and leave me alone. What she is doing is unprofessional. If she doesn’t want to stop what she is presently doing, one day will be one day, then she will know me better than the way she presently knows me”.

68. The Applicant admitted sending this message to Mr. Masike as per paragraph 65. He was aware of the meaning that would be attached to those words. Those words could not possibly be understood to be requesting an intervention from Mr. Masike. It is the Applicant evidence that Ms. Thoka gave him folded letters and she wanted him to acknowledge receipt of the letter without reading its contents and be given the copy. The question that need to be ask is whether those words were directed to Ms. Thoka. It is clear that those words were directed to Ms. Thoka because she was the newly appointed Principal at Phirihadi Primary School.

69. It is clear that these words had been said while there was an employment relationship and constituted intimidation, victimization and disrespectful. The Applicant cannot have been let-off or scot-free for intimidating, victimizing and disrespectful to his superior. I, therefore, accordingly find the Applicant committed misconduct and that he was correctly found guilty.

Whether the Applicant unilaterally terminated the food handlers’ contract?

70. The Applicant was charged for contravening section 18(1)(f) of the Employment of Educators Act, 76 of 1998, in that while he was acting Principal at Phirihadi Primary School, he unjustifiably prejudiced the administration, discipline or efficiency of the School when he unilaterally stopped the employment contracts’ of the Food Handlers, causing the School Governing Body to be liable for the retrospective payments of their salaries, thus putting the school, as well as the education department into disrepute. The Applicant denied the allegation against him.

71. It is the Applicant version that on 25 July 2019, he met with the SGB chairperson and treasurer and he showed them the stolen food. The food handlers requested the school not to involve the police. It is the Applicant version that the chairperson and treasurer informed the food handlers’ not to report for duty from 26 to 31 July 2018. This version was not put to the Respondent witnesses, especially Mr. Mofokeng, during his cross-examination to give him an opportunity to respond. Therefore, this version was untested and cannot carry weight.

72. In NUM and another v CCMA and others (2018) 3 BLLR 267 (LAC), the Court set aside an award where the Commissioner found for the employee on facts that were not put to employer’s witnesses. It was held: “[14] from the record, it is apparent that the Labour Court correctly determined that the allegation of racial abuse had not been put to the employer’s witnesses in cross-examination. The purpose of a proper cross-examination is to place a one-sided version, which often results from examination-in-chief, into proper perspective by eliciting facts which place a different complexion on the matter, or by demonstrating that the witness is untruthful. In eliciting from an opposing witness facts which are beneficial to the case of the cross-examiner’s client and to put such client’s opposing and contradictory version to the witness, the decision-maker is placed in a position which permits evidence to be properly and appropriately assessed. Since key aspects of the employee’s case were not put to the employer’s witnesses in cross-examination and had not been canvassed in the evidence of those witnesses in chief, their version on such aspects was not placed before the Commissioner. The result was that the Commissioner was unable to determine the issue before him in the manner required”.

73. Adv. Kilowan is a legal practitioner, and cannot be said to be illiterate, or an uneducated person. One of his main duties is to represent his clients in arbitration proceedings. He therefore knows he should put his client’s versions to the Respondent. It is the Respondent undisputed evidence that on 25 July 2018, the Applicant dismissed the food handlers without a fair procedure and without a fair reason. This allegation was supported by the SGB minutes of the meeting held on 31 July 2018 as per “R10-R11”.

74. This leaves me in a position where I have not heard the Applicant’s version regarding the said allegation. I conclude that the Applicant failed to follow the proper procedure before dismissing the food handlers and that caused the SGB to be liable to compensate them for unfair dismissal.

Whether the Applicant assaulted Mr. Mosholi?

75. The Applicant was charged for contravening section 18(1)(r) of the Employment of Educators Act, 76 of 1998, in that on 8th November 2019, while at work, he assaulted a colleague, Mr. Mosholi PR (General Worker) by punching him with a fist and subsequently dragged him to Ms. Mosethe’s office where he sat on top of him. The Applicant denied the allegation against him.

76. The issue that I have to determine is whether the Applicant assaulted Mr. Mosholi on 08 November 2019. The Respondent thus bears the onus to prove that the Applicant committed the prohibited conduct and that he had knowledge of wrongfulness and unlawfulness of such conduct. The legal requirements for assault are the application of physical force, which is unlawful or intentional.

77. It is the Applicant’s version that Mr. Mosholi pointed finger at him and said that if he does not want to work, he must take his belongs and leave the school premises. Mr. Mosholi further said that there are educators who could do the work. He requested him to leave his office because he was busy marking the learners scripts. Mr. Mosholi replied by saying if he does not want to leave, they could go to the street and he could show him his true colors. This version was not put to Mr. Mosholi in order for him to respond.

78. It is common cause that on the day in question Mr. Mosholi went to the Applicant office and he confronted him about not allowing the learners’ to write examination. It is the Respondent evidence that the Applicant shouted at Mr Mosholi and he said that he was disrespecting him. This evidence was corroborated by the footage showing the Applicant shouting. It was heard from the footage someone saying “ska mo shapa” meaning in English “do not beat him”. Ms. Thoka when giving evidence, she confirmed that it was her voice that says do not beat him.

79. It is common cause that the Applicant sat on top of Mr. Mosholi after he fell down. The footage showed the Applicant setting on top of Mr. Mosholi. The footage showed the Applicant been angry and saying loudly “what he wanted in my office”. Even though the footage does not show the Applicant punching Mr. Mosholi with his fists. The inferences that I can draw from the footage is that it is probable that he was punching him because he was angry towards him. I do not agree with the Applicant’s version to say he dragged Mr. Mosholi on the floor because he was angry and he wanted to fight.

80. The Applicant should have known that no matter how superior he was to Mr. Mosholi, he had no right to take the law into his own hands and assault him. The Applicant’s version was improbable and also his version was not put to the Respondent’s witnesses in order for them to be given an opportunity to respond. It is clear that the Applicant was just trying to justify his unacceptable conduct. I accordingly find the Applicant committed misconduct and that he was correctly found guilty for assaulting Mr. Mosholi.

Whether the sanction of a dismissal was fair?

81. On the issue of appropriateness of sanction, the Labour Appeal Court held in Department of Home Affairs and another v Ndlovu and others (DA 11/2012) (2014) ZALAC 11; (2014) 9 BLLR 851 (LAC); (2014) 35 ILJ 3340 (LAC) (handed down on 27 March 2014) that, in order to prove that the sanction of dismissal was appropriate, the Employer must present evidence to prove breakdown in the employment relationship. Such evidence is not necessary where the breakdown is apparent from the nature of the offence and or circumstances. The other question that need to be ask is whether the Applicant conduct destroy the faith and goodwill of the Respondent?

82. Certain conduct warrants action, even if it is not prohibited by formal rules or has not been formally communicated to employees. Employees are expected to know that certain behavior is simply unacceptable. An employee will not therefore generally be able to rely on the knowledge of the rule if the misconduct for which he was dismissed amounts to intimidation and assault. In Department of Labour v GPSSBC (2010) 31 ILJ 1313 (LAC) the Labour Appeal Court confirmed the principle that a sanction aimed at correction and rehabilitation is no purpose when an employee refuses to acknowledge the wrongness of his/her conduct. In this matter, the Applicant failed to accept the seriousness of his action or admission of any fault on his part.

83. The employee is obliged to respect and obey the employer because lack of respect renders the employment relationship intolerable and disobedience undermines the employer’s authority. It is clear that the Applicant’s conduct constituted intimidation, victimization and disrespect. The assault took place at the school in front of other staff members by a senior employee, who was the deputy principal. The Applicant’s believed that he had done nothing wrong. The Respondent is by law required to provide the school environment that is safe for the learners and educators. Assault can seriously disturb the learners, smooth working relationships and it’s a severe breach of one’s contract.

84. I have considered the totally of circumstances in order to decide a fair and appropriate sanction. It is important to note that intimidation and assault is a standard that should not be breached and that conduct was unwelcome and unwarranted. I, therefore, find the sanction of a dismissal was fair and appropriate in this instance.

Conclusion

85. In these circumstances, I find the Applicant dismissal to be both procedurally and substantively fair.

Award

86. The dismissal of the Applicant, Mr. Kleinbooi Letheba Mokoena, is found to be both procedurally and substantively fair and the dismissal is confirmed.

Signature: 
Commissioner: Khuduga Tlale
Sector: Education