ELRC 565-22/23GP

ARBITRATION AWARD

Case Number:
ELRC 565-22/23GP
Commissioner: Khululekani Xamesi
Date of Award: 23 March 2023

In the ARBITRATION between

Matlaisane Happy Gololo
(the Applicant)

Department of Education -Gauteng
(the Respondent)

Applicant’s representative: Mr. Tiyani Chauke – SADTU – Union Official
Applicant’s address:

Telephone
Telephone
Email


Respondent’s representative:

Mr. Joseph Munengwane – Gauteng Department of Eduction - Labour Relations Officer
Respondent’s address:


Fax:
Email:

Details of the hearing and Representation:
1. The matter between Matlaisane Happy Gololo (herein after Ms. Gololo and or the Applicant), and Gauteng Department of Education, the Respondent, was scheduled for arbitration and was conducted under the auspices of the ELRC in Johannesburg on the 26th January 2023 and 28th February 2023.

2. Ms. Gololo, the Applicant was present and was represented by Mr. Tiyane Chauke a Union Official from SADTU. The Respondent, Gauteng Department of Education was represented by Mr. Joseph Munengwane its Labour Relations Officer.

3. The proceedings were electronically recorded and hand written notes were taken.

Issues to be decided:

4. I am required to determine whether the dismissal of the Applicant was substantively fair, and if not, I must determine the appropriate remedy in terms of section 193 and 194 of the LRA.

Background to the dispute:
Pre-arbitration:
5. The Applicant was employed by the Respondent on the 01st March 2022 as an Educator PL1 and was dismissed on the 30th September 2022.

6. The Applicant was dismissed on allegations of misconduct and sought to be reinstated whilst the Respondent sought dismissal of the Applicant’s referral.

7. The Applicant was initially challenging both substantive and procedural fairness of her dismissal. It terms of procedure, the Applicant averred that the Respondent failed to consult with her union before initiating disciplinary process against her considering that she was a side-steward. However, the Applicant later abandoned procedural fairness as an issue in dispute.

8. In terms of substantive fairness, the Applicant disputed having assaulted the principal, Ms. Molefe.
9. Both parties called witnesses and submitted bundles of documents which documents were respectively marked as bundle “A” and “R”.

10. It must be noted that subsequent to the arbitration hearing I requested the Council to request parties to submit the Applicant’s payslip because her salary was not articulated in the pre-arbitration minutes except the Applicant’s position and grade.

Survey of evidence and arguments:
11. The following is a brief summary of the relevant evidence submitted by the parties. It is not intended to be exhaustive, however, I confirm that I have taken all the evidence and arguments into consideration in reaching my decision.

12. The Respondent commenced leading evidence as it was common cause that the Applicant was dismissed. The Respondent bundle of document was marked as bundle “R” and the Applicant’s bundle was marked as bundle “A”.

Respondent’s case:

13. The Respondent’s first witness was Mr. Thimson Mampane who testified under oath that he works for the Department of Education as a Senior Education Specialist in the Labour Relations Unit. He testified that he was the Presiding Officer of the Applicant’s disciplinary hearing which unfolded over a period of two days.

14. In view of the fact that the Applicant’s decided to abandoned allegations of procedural fairness the evidence of Mr. Mampane became mute.

15. The Respondent’s second witness was Ms. Lindiwe Molefe who testified under oath that she was the Principal of Sefikeng primary School. She testified that on page R11 to R13 was a statement she gave to the police and on page R14 to R20 was a J88 medical form that was given to her at the police station to be completed by a medical doctor. She further testified that on page R21 was a medical certificate that was given to her by her medical doctor. She submitted that the medical notes were issued to her by medical doctors after she was assaulted by Ms. Gololo.

16. It was Ms. Molofe’s evidence that she was assaulted by Ms. Gololo on the 05th November 2022. She submitted that on the morning of the 05th November 2022 after 07h00 she had an informal discussion with Ms. Milo after she heard that she left early for duty the previous day. After her discussion with Ms. Milo, she asked to talk to the Applicant in private, she also confronted the Applicant for leaving work early without informing her. The Applicant told her that she did communicate via email that she was to attend a SADTU meeting.

17. It was further Ms. Molofe’s testimony that she previously instructed the Applicant to printout all SADTU meeting invitation and to physically share the invitation with her. However, the Applicant questioned as to whom was she reporting whereabouts. She informed the Applicant that she reports her whereabouts to her superiors. She averred that the Applicant indicated that she does not know what she expected from her. She informed the Applicant that she expects her to communicate and submit her SADTU meeting invitations.

18. Ms. Molefe testified that Ms. Gololo whilst in the corridor held her by her throat and slept her. An Educator by the name of Khabo came in between them as they were in front of the office. Ms Shube held her hand and ask why there were fighting. She told her that she was not fighting the Applicant. She was questioning the Applicant about her whereabouts but the Applicant started beating her. After the incident she took her handbag and went to report the matter to the police. The Applicant further demonstrated how the Applicant strangle and slapped her.

19. Ms. Molefe further testified that on page R17 clause F was a sketch indicating bruises sustained when she was assaulted by the Applicant at work. She was asked where the incident took place, she said in the veranda of the school in the presence of learner and teachers. She was further asked who saw the incident she said she only saw the two teacher that separated them.

20. Under cross examination, she was asked about her working relationship with the Applicant, her response was at the beginning the Applicant was one of the teacher that welcomed her at the School but later the Applicant stopped obeying her instructions. She only confronted the Applicant about work related issues. She was aware that the Applicant was side-steward representing union members. She dispute that the Applicant had informed her that she would be attending a union meeting. She confirmed that the Applicant did indicate that she had sent her an email but she only saw the email after school.

21. She was asked why she held a private discussion with the Applicant. Her response was, it was not the first time the Applicant had left without informing her, therefore, she wanted to understand why. However, it was the first time Ms. Milo had left without informing her. She confirmed that she was wearing her spectacles during the incident. She confirmed that her spectacles were not damages and it was because she was slapped above her eye.

22. It was put to Ms. Molefe that she was never assaulted by the Applicant, she said the Applicant was guilty of assault. It was put to Ms. Molefe that Mr. Khabo would testify that the Applicant did not assault her, she said, Mr. Khabo came after the assault to separate them. She was asked whether Jeanette saw the incident she said no. She averred that Jeanette had signed the attendance register and went to her office. Lastly, she was asked what was the medical condition mentioned in her medical note, she said it was in reference to what she had told her doctor happened.
Applicant’s case:
23. The Applicant testified under oath that she was an Educator and has for the past 20 years been working at Sefikeng primary school. She read allegations levelled against her on page R6 and submitted that she did not assault Ms. Molefe. She testified that on the said day she was called by Ms. Molefe into the back (side) of the office where asked her why she had left early the previous day and without physically reporting to her. She told Ms. Molefe that her office was closed and that she did sent an email.

24. It was further her evidence that Ms. Molefe obstructed her and pointed her on her forehead insisting that she was required to tell her. She asked Ms. Molefe what she wanted from her thereafter she left. Ms. Molefe followed her to the front of the office where she obstructed her demanding that she was required to tell her before leaving the school. Mr. Khabo arrived and came between them and removed her from the incident. She dispute having strangle and slapping Ms. Molefe.

25. Under cross examination, the Applicant confirmed that Mr. Khabo came between her and Ms. Molefe. She confirm that it was only the two at the back (side) of the office and confirmed a person in front of an office would not see what was happening in the back of the office. She confirmed that Ms. Molefe pointed her forehead whilst at the back and front of the office. It was put to the applicant that Khabo could have seen what happened behind the office, she said she believed that he did see because he came from behind.

26. It was put to the Applicant that when she was provoked by Ms. Molefe she lost her temper, she said disputed this version and stated that she walked away. She disputed having slapped Ms. Molefe. It was put to the Applicant that she never challenged the evidence that it was only her and Ms. Molefe behind the office. She said learners and staff were passing and Ms. Molefe had also confirmed that there were learners and staff members passing.

27. The Applicant’s called Mr. Mhluphekile Khabo who testified that he was a teacher at Sefikeng primary school. He read his statement on page R23 to R24. He submitted that he entered the school using the small gate and saw the Applicant and Ms. Molefe, the school principal standing next to the office. He heard the principal saying to the Applicant she was disrespectful and was conducting herself as if the school was her house. The Applicant kept saying please leave me alone because she did report. They walked past him and stood in front to the office, he heard Ms. Molefe saying do not push me and the Applicant disputing pushing Ms. Molefe. He realised that the argument was heating up and decided to get between the Applicant and Ms. Molefe.

28. He submitted that he saw everything and the incident was witnessed by many people including learners. They exchanged words of anger with a growing frustration. He saw that they would fight. The principal did not conduct herself properly. Ms. Molefe was a short-tempered person who has no faith in the teachers. Ms. Molefe did not have relationship with teachers because she does not have love for her teachers.

29. Under cross examination, he submitted that he arrived at work around 07h05 and the incident took place within 2 minutes of his arrival. He confirmed that he did not witness any physical contact between the Applicant and Ms. Molefe. It was put to him that the Applicant and Ms. Molefe indicated that the incident took place at 07h20, he said he did not agree with the time. It was further put to the witness that he was fabricating his story which was not aligned with the version of the Applicant. He disputed fabricating his version and submitted that what he saw might not be what the Applicant saw.

30. The Applicant further called Ms. Jeanette Leboko who testified that she was former teacher at Sefikeng primary school and was on pension. She testified that in the morning of the incident she and Milo were going to sign the attendance register when the principal arrived and called Ms. Milo and asked her why she did not report that she would be attending a union meeting. Milo indicated that they did report. The Applicant also arrived but was called by the principal to the side of the office. They heard an exchange of words between the Applicant and the Principal. Khabo came from the corner and took Gololo from where they were talking. Ms. Moshebe took the principal but they could see what was happening. They did not physically fight.
31. Under cross examination, it was put to Ms. Leboko that she was not there when the incident took place to which she disputed this version. She was asked whether she was able to see them whilst they were standing next to the corner of the office, she said no but heard their voices. It was put to her that the Applicant assaulted Ms. Molefe, she disagreed.

32. Lastly, both parties submitted written closing arguments which are considered herein below in my findings.
Analysis of Evidence and arguments:
33. This is a referral and a dispute in terms of section 191 (5) of the Labour Relation Act 66 of 1997 as amended (the LRA) of an alleged unfair dismissal. In terms of section 192 of the LRA, the employer bare the onus of proving that the dismissal of the employee was fair, both procedurally and substantively. The Applicant was challenging both substantive and of her dismissal.

34. In terms of the provisions of schedule 8, any person who is determining whether a dismissal for misconduct is unfair is required to 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 was contravened, whether or not-
(c). The rule was a valid or reasonable rule or standard;
(d). The employee was aware, or could reasonably be expected to have been aware, of the rule or standard.
(e). The rule or standard has been consistently applied by the employer; and
(f). Dismissal was an appropriate sanction for the contravention of the rule or standard.

35. The applicant was dismissed on an allegation of assault in that on the 05 November 2021 while on duty at Sefikeng Primary School you seriously assaulted Ms. Molefe the Principal of the school by strangling her, slapping her numerous times in the face, and pushing her against the railings.

36. The Applicant disputed assaulting Ms. Molefe and called two witnesses to her defence. The Respondent called two witnesses to prove procedural and substantive fairness of the Applicant’s dismissal. However, the Applicant later abandoned her claim regarding procedural fairness of her dismissal. Consequently, the Respondent’s case was anchored on Ms. Molefe’s testimony and her J88 to prove the substance of the Applicant’s dismissal.

37. Ms. Molefe testified that she was strangled, slapped and pushed by the Applicant. In her statement on page R12 to R13 which states among other things “She then walked towards the front of the office while still outside the building…there were learners and staff members who were passing by. She became loud asking what I want from her. While pointing me with her finger. She started to push me back with her hands. I told her not to push nor touch me. She throttle me and started to slap me all over my face. She pushed me against the rails of the building. Mr. Khabo who is a staff member came between us. He told us to stop fighting.” (my underlining)

38. Ms. Molefe further refer us to her statement on page A6 to A7 which states among other things that “Mr. Khabo, staff member, came in between us to stop fighting as it was happening in front of the learners and staff members.” During her evidence in chief she testified that “in the corridor she held my throat, she slept me and an Educator by the name of Khabo came in between us. We were just in front of the office.” (My underlining).

39. Under cross examination, it was put to Ms. Molefe that Mr. Khabo would testify that there was no assault. Her response was he came after the assault and separated us. This version was contrary to Ms. Molefe’s written statements and her evidence in chief. It was also put to the Applicant that Khabo could not have witnesses the alleged assault incident because it happened in the back of the office. However, this version was equally at odds with the aforementioned written and oral statements of the Applicant.

40. In addition, the Respondent sought to rely on a medical report to substantiate the alleged assault allegations levelled against the Applicant. Ms. Molefe testified on how she had obtained the medical report on page R14 to R21 and further read the content thereof. The Applicant’s representative attempted to cross examine Ms. Molefe on the content of the document, however, I cautioned the Applicant’s representative that Ms. Molefe was no the author of the document, therefore, the content of the document can only be verified by the medical doctor. And if the content of document were disputed they ought to have notified the Respondent. They indicated that the document was disputed.

41. The Respondent evidence on medical report was nothing but hearsay evidence. The fact that these medical reports were discovered and accepted to be what they purport to be, during the scope and course of the pre-arbitration process, does not charge the nature of the evidence. It is trite law that if evidence is not led to prove the authenticity and originality of documentary evidence, such evidence will only qualify as hearsay evidence. Consequently, the value placed on this evidence cannot outweigh the strength and reliability of real evidence.

42. The Applicant called two witness who confirmed that they were present during the scope and course of the alleged incident and both confirmed that there was no physical fighting that took place on the day. Secondly, they both confirmed that the private discussion that took place between the Applicant and Ms. Molefe was at the corner of the office and not behind the office, which version was clarified and accepted to be correct by the Respondent.

43. Lastly, Ms. Molefe demonstrate how she was allegedly assaulted by the Applicant who “numerously” slapped her on her face whilst wearing her spectacles. She confirmed that despite having been wearing her spectacles and despite being slapped numerously on her face, her spectacles were never damaged nor was she harmed by her spectacles. This was greatly at odds with her demonstrations. Consequently, I am not persuaded that the Respondent has discharged the onus to demonstrate that the dismissal of the Applicant was substantively fair.

44. In view of the above, I find that the applicant dismissal was substantively not fair. The Applicant sought to be retrospectively reinstated and there was no evidence nor reasons before me to consider otherwise.
Award:
Accordingly, I make the following award:
45. The Applicant, Matlaisane Happy Gololo’s dismissal was substantively not fair.

46. The Respondent, Gauteng, Department of Education is ordered to retrospectively reinstate the Applicant in its employ in the same terms and conditions as governed her employment before her dismissal.

47. The Applicant, is ordered to tender her service to the Respondent, Gauteng Department of Education, Sefikeng Primary School on the 01st April 2023.

48. The Respondent is ordered to pay the Applicant in the sum of R197 205, 42 (one hundred and ninety-seven thousand two hundred and five rand and forty-two cents), which is the equivalent of 6 months salary, i.e. from 01st October 2022 to 31st March 2023 to date of reinstatement, as back pay. The said amount calculated as follows must be paid on or before the 01st April 2023.

49. R32 867.57 x 6 months =R197 205, 42 (01st October 2022 to 01st April 2023.

50. Failing to pay the above total amount will attract interest from the 02 April 2023, to payment date, at the rate of interest prescribed in terms of the Prescription Rate of Interest Act.
Signed at Johannesburg on the 23rd March 2023.
Signature:
Commissioner: Khululekani Xamesi