ELRC 546-22/23 WC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN CAPE TOWN

Case No: ELRC 546-22/23 WC

In the matter between

Laluma Gagela Applicant

And

Department of Education Western Cape Respondent

ARBITRATION AWARD

ARBITRATOR: A.Singh-Bhoopchand

HEARD: 19 January 2023; 20 February 2023

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration hearing concerning an alleged unfair dismissal convened on 10 January 2023, and 20 February 2023. The Respondent was represented by Mr Kaiser Mbobo, a labour relations official within the Labour Relations Directorate of the Respondent. The applicant, Ms Gagela presented her own case.

2. One bundle of documents was handed in as evidence.


3. Proceedings were digitally recorded.

ISSUE IN DISPUTE

4. I must decide whether the dismissal of the Applicant was procedurally and substantively fair. Applicant seeks reinstatement.

BACKGROUND

5. The applicant was employed as an educator at the Khayaleitsha Special School. She was dismissed during September 2022 after having been found guilty of misconduct at an internal disciplinary hearing. Applicant did not attend the disciplinary hearing The charges against the Applicant as described in the Notice to Attend a Disciplinary Hearing read as follows:

Charge 1:
It is alleged that you are guilty of misconduct in terms of Section 17(1) of the Employment of Educators Act , no. 76 of 1998 (hereinafter referred to as the Act). In that on or about 13 and/or 14 August 2022 , you seriously assaulted Ms Sonkqayi, an employee of Khayaleitsha Special School, with the intention to cause serious bodily harm by:
a). Pushing and/pr pulling her
b). Hitting her, with an iron rod, on her head; and /or;
c). Strangling her

Alternative to Charge 1
It is alleged that you are guilty of misconduct in terms of section 18(1) of the Act , in that on or about 13 and/or 14 August 2022 , you assaulted Ms Sonkqayi, an employee of Khayaleitsha Special School by:
a). Pushing and/or pulling her; and/or
b). hitting her, with an iron rod , on her head ; and /or ;
c). Strangling her

6. It is common cause that the incident happened outside of working hours and outside of the school premises. Applicant is a Traditional Healer ,a qualified Sangoma, and the complainant Ms Sonkqayi is a Traditional Healer Initiate under the tutelage of the Applicant.

7. Applicant admits that there was an incident of assault between her and Ms Sonkqayi. However , her version is that she was provoked by Ms Sonkqayi ad that she acted in self defence when she assaulted her.

8. She disputes the procedural fairness on the grounds that the disciplinary hearing was held in her absence. She claims that her representative requested a postponement.

SUMMARY OF EVIDENCE
Respondent’s Case
9. Respondent presented the evidence of four witnesses, Ms Siyammecela Mhlomi, who is procurement officer in Supply Chain Management within the department and is also a Traditional Healer initiate/trainee ; Ms Florence Velebayi, the principal of Khayaleitsha Special School; Nkanyiso Sibanda, the chairperson of the disciplinary enquiry and Ms Sonkqayi, a senior educator at Khayaleitsha Special School , the complainant in this matter.

10. Siyammecela Mhlomi said that as an initiate it is emphasized during their training that they are required to be “clean”. An assault is considered “unclean”. The School of Traditional Healers is profoundly against violence -it is simply unacceptable for initiates to participate in violence.


11. Florence Velebayi: She testified that the Applicant was part of the Senior Management Team at her school and that she had served as a subject head. During August 2022, she received a text message from Ms Sonkqayi saying that she had been assaulted by the Applicant; that she sustained injuries during the assault and that she had been booked off sick by her doctor. During the same period, she received communication from the Applicant saying that she would not be able to report for duty as she had injured her foot when she fell on the “stoep”.

12. She subsequently learnt that Ms Sonkqayi had to undergo surgical procedures as a result of the injuries that she sustained during the assault. Ms Sonkqayi sustained injuries to her head, hands body and jaws. She did not report for duty for a considerable period. When Ms Sonkqayi did return to duty, she noted that her hands were still bandaged.


13. This is not the first time that the Applicant has been involved in an assault incident. She had previously assaulted Ms Jack, an educator at their school. She was disciplined for that incident. Following the incident with Ms Jack several interventions took place at their school to maintain peace amongst the educators and to promote good interpersonal relationships. Ms Gagela was also referred to the Employee Wellness Programme. The Department also provided a “know your right” training session which Ms Gagela attended.

14. Ms Gagela is in breach of the SACE Code of Conduct .She cannot be trusted to work at their school -she has been violent previously and despite interventions she has assaulted a colleague again. Some of the educators at school are afraid of her.

15. Zimkita Sonkqayi: She is a physiotherapist at the school, and it is her job to assist learners in their physical rehabilitation. Khayaleitsha Special School is a school for learners with special needs. Her job thus entails using her hands . The fingers on both her hands were fractured during the assault. She could not perform her job for a considerable period after the incident . Even when she eventually returned to work after a period of absence, she was still limited in the use of her hands. She is now slowly recovering. In addition to the injuries to her hand , she sustained injuries to her head, jaw and many parts of her body.


16. The Applicant is her senior both in terms of age and experience. The Applicant was her primary school teacher, and they subsequently became colleagues when she joined the school as an educator. More recently , she became a Sangoma trainee under the tutelage of the Applicant who is a professional Sangoma. Apart from this, they live in close proximity to one another.

17. On 14 August 2022, she went to the Applicant’s home, together with her three-year old child, to return some utensils to her. Applicant asked her to stay for a while as she wanted to introduce her to her two friends. She told the Applicant that she could not stay as she was hungry and wanted to go back home to eat. However , she sat for a while, and they drank some alcohol. She then indicated to the Applicant that she was now very hungry and that she wanted to leave. Applicant insisted that she stay and when she tried to leave, the Applicant physically held her back. This led to a scuffle . They ended up on the street and they eventually separated. She took her child and went back to her house and the Applicant likewise went back into her house.

18. After approximately fifteen minutes and while she was bending over her stove, the Applicant suddenly appeared behind her and began beating her with an iron rod. She has never seen the rod before. She was hit on the ribs, head , jaws and on her fingers. All this happened in front of her child. Applicant then attempted to strangle her – she was so traumatised that she wet herself. The friend that was present at the Applicant’s home was also watching. The friend said: “say you are sorry” . With her last breath, she said “sorry” . Applicant then released her, and they left. She was left severely injured and semi- conscious, lying on the floor. A friend that was passing by saw her lying on the floor and alerted her landlord who then took her to hospital.

19. Apart from the fractures to her fingers , her jaw was also fractured She was referred to the Tygerberg Hospital for specialized surgery to her jaws. Plates and screws had to be inserted into her jaws during the surgery. She also had many lacerations which were stitched. She was put off work for six weeks. Her daughter is still traumatized by what she witnessed. She reported the incident to SAPS. The case is yet to be concluded.


20. She will not feel safe at school if the Applicant is reinstated. She will also not recommend that the Applicant be transferred to another school as she considers her to be a dangerous person. The Applicant is prone to fits of anger which then leads to her becoming violent. She previously attacked another educator who is her senior.

21. Nkanyiso Sibanda: He confirmed that neither the Applicant nor any representative was present on the day of the disciplinary hearing. She had been properly served with a Notice to Attend the hearing . The initiator called her to establish her whereabouts. The call was placed on “speaker”, so he was able to hear the conversation. The Applicant said that she will not be attending as she needed to consult with her representative . The initiator then informed her that she had had enough time to prepare and that the hearing would proceed in her absence if she did not attend. The applicant did not mention anything about her representative applying for a postponement. He did not receive any application for postponement.

Applicant’s Case
22. Lulama Gagela: She testified that Ms Sonkqayi came over to her house on 14 August 2022 to return some items to her. They drank alcohol together for a while and finished half a bottle. She then sent someone out to buy another bottle and they continued to drink. As they were drinking two senior Traditional Healers came to her house. Ms Sonkqayi then stood up to leave. She told Ms Sonkqayi that she should not leave because their seniors had just arrived . In traditional practice it is considered rude to leave until the seniors are “settled”. Ms Sonkqayi insisted that she wanted to leave. She then tried to stop Ms Sonkqayi from leaving by holding her hand. Ms Sonkqayi then started pulling at her dreadlocks . A tussle then ensued. She fell outside the house and Ms Sonkqayi continued to hit her and pulled her beads from her neck . Ms Sonkqayi then left after throwing the beads away.

23. She went back indoors . She was very angry about what had happened. After a while she went to Ms Sonkqayi’s flat across the road . Ms Sonkqayi was standing in the kitchen. She asked Ms Sonkqayi why she had hit her. In response, Ms Sonkqayi picked up an iron rod and hit her on her left foot. She in turn beat Ms Sonkqayi with the same rod and with her hands . She was merely trying to defend herself. She then left, leaving Ms Sonkqayi lying on the floor. In response to a question as to whether she had beaten Ms Sonkqayi excessively because she was in a state of anger, she said that it was possible.
24. Hours after the incident , she called Ms Sonkqayi, but she did not answer her phone. She then sent her a text message saying that she regretted that they fought and that they should talk the next day.

25. He foot was injured when Ms Sonkqayi struck her with the rod. She called the principal and told her that she could not attend school as she had injured her foot when she fell on the “stoep”. She deliberately lied to the Principal .She reported the incident to SAPS.


26. With regard to the procedural aspects of the dismissal, she said that she did not attend the hearing because her union representative told her that he would apply for a postponement because he did not have enough time to consult with her.

ANALYSIS

27. 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.

28. The Applicant does not dispute that she was properly notified of the disciplinary hearing and that the notice had been served on her some two weeks prior to the date of the hearing. Although she denies telling the initiator that the hearing could proceed in her absence , her actions confirm that she had no intention to attend on the appointed day and that she was aware that the hearing would proceed in her absence if she did not attend. She was warned of this possibility in the Notice to Attend the Hearing . She claims that her representative informed her that the matter would be postponement. No effort was made to confirm that such an application was made and that the application had been granted. It was her responsibility to ensure that this was done and to avail herself on the day if the application was refused. She made no effort to avail herself even when informed by the initiator that no one was present on her behalf. She could easily have presented her own version as she did at this hearing. She chose not to be present . That the hearing took place in her absence is of her own doing. There was no unfairness on the part of her employer.

29. Applicant admits to assaulting Ms Sonkqayi. She claims that she acted in self defence. With regards to the altercation that took place at her house it is plausible that both parties felt that they were being provoked by the other . Applicant’s claim of acting in self defence would have been arguable under these circumstances. That incident ended with neither of them inflicting any serious or even minor injuries on each other. Had that tussle been the end of the matter then it is unlikely that the Applicant would have found herself where she finds herself today.


30. However, the matter did not end at the Applicant’s home. On the applicant’s own version, she was angered by the altercation at her home. Her version that she then went to the Applicants flat merely to talk things through is unlikely given her state of anger. Had she genuinely wanted to talk things through, then it is more likely that she would gone there when she was calm. She clearly went there to seek revenge . This is consistent with the manner and extent to which she assaulted Ms Sonkqayi. It is evident that she went there with the clear intention to punish Ms Sonkqayi. She even conceded that given the extent of her anger that she beat Ms Sonkqayi violently and excessively . It was no act of self defence but rather it was an act of pre-meditated violence.

31. This was a serious and vicious act of violence meted out with an iron rod that caused serious injuries and could easily have resulted in the death of Ms Sonkqayi . She callously left Ms Sonkqayi lying injured on the floor with her toddler child watching and unattended to . The applicant is guilty of serious misconduct.

32. The Applicant has not only contravened the laws of the country in perpetrating an assault with intention to cause grievous bodily harm, but her conduct is in contravention of the South African Council of Educators Act 31 of 2000 (SACE) Her conduct is unbecoming of an educator. It does not matter that the assault took place outside of school. The assault was perpetrated on a colleague, and this is bound to impact on work relationships. Clause 6.7 of SACE which deals with the conduct of an educator versus his /her colleagues, enjoins an educator to avoid any form of humiliation and to refrain from any form of abuse (physical or otherwise) towards colleagues.

33. 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.

34. Clearly, the Respondent has imposed the sanction of dismissal to protect the best interests of the school and the learning environment . 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 her not repeating the misconduct. The misconduct is in any event too serious given that it impacts on the safety of fellow educators. The applicant did not display any remorse during the time that she participated in the arbitration.

35. I have considered the appropriateness of the sanction merely for the sake of completeness. I need not have done so as an employer that is found guilty of serious misconduct is subjected to mandatory dismissal in terms of section 17(2) of the Employment of Educators Act. Section 17(1) lists serious assault with the intention to cause grievous bodily harm to a learner, student or anther employee as a form of serious misconduct. Section 17(2) states that if an educator is found guilty of serious misconduct following a disciplinary hearing , he/she must be dismissed .

I make the following award:


AWARD
The dismissal of the applicant, Lulama Gagela , was procedurally and substantively fair.

A.Singh-Bhoopchand
Arbitrator