ELRC467-21/22GP

Panelist: Clint Enslin
Case No.: ELRC467-21/22GP
Date of Award: 04 April 2023

In the ARBITRATION between:

SADTU obo Lwazi Zulu
(Union / Applicant)

and

Department of Education: Gauteng
(Respondent)

Applicant’s representative: Mr Thabo Monyatsi (SADTU)
Applicant’s address:

Telephone: 083 451 3330
Telefax:
Email thabomonyatsi@yahoo.com

Respondent’s representative: Mr Vusumzi Ndhlovu
Respondent’s address:
Telephone: 011 289 6098 / 072 3825340
Telefax:
Email elizabeth.mampane@gauteng.gov.za

DETAILS OF HEARING AND REPRESENTATION

1. This dispute was scheduled for arbitration in terms of Section 191(5) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 17 of the ELRC Constitution: ELRC Dispute Resolution Procedures. The hearing was held via Zoom (virtual) on 15 February, 19 April, 28 June, 16 August, 13 and 23 September and 8 November 2022, as well as on 24 January, 14 February and 1 March 2023.

2. The Applicant, Mr Lwazi Zulu, was present and represented by Mr Thabo Monyatsi, an official from SADTU, a registered trade union. The Respondent, Department of Education: Gauteng, was represented by Mr Vusumzi Ndhlovu, a Labour Relations Officer, of the Respondent.


ISSUE TO BE DECIDED
3. Whether the dismissal of the Applicant was both procedurally and substantively fair.
4. If not, determine appropriate relief.

BACKGROUND TO THE ISSUES

5. It should be noted that many of the dates on which the matter was heard were not full days, mainly due to connection issues and/or load-shedding.

6. The following facts were agreed to between the parties as common cause and there existed no dispute of fact.

6.1 The Applicant commenced employment with the Respondent in February 2016 as a temp and became permanent in August 2016.

6.2 He was employed as a post level 1 educator at Illinge Secondary School.

6.3 He was dismissed on 23 June 2021 and appealed his dismissal.

6.4 The Appeal outcome was received by him on 2 September 2021.

6.5 He was paid up until the Appeal outcome.

6.6 There was a hearing held prior to his dismissal.

6.7 At the time of the hearing, the Applicant had been transferred to a different school.

6.8 At the time of his dismissal, he earned R24 043.75 per month.

6.9 He was dismissed for both charges as contained on pages 6 of R1.

7. Six bundles/documents were handed in by the parties and they were marked “R1”, “A1”, “A2”, “A3” , “A4” and "X" respectively. Parties agreed that the documents were what they purported to be.

8. The Applicant seeks to be reinstated retrospectively.

9. Both parties submitted written closing arguments.

10. The matter was electronically recorded.

SURVEY OF EVIDENCE AND ARGUMENT

11. This award constitutes a brief summary of evidence, argument and my reasons for the award issued in
terms of Section 138 (7)(a), of the LRA, relevant to the dispute at hand and does not reflect all the
evidence and arguments heard and considered in deciding this matter.

RESPONDENT’S CASE

Ms ROSOKETSWE MBHELE (Assistant Director Dispute Management)


12. Ms Rosoketswe Mbhele testified that she had been in her current position since 1 October 2020. She was the chairperson of the Applicant’s hearing. Before the hearing commenced, she had checked procedural compliance. The Applicant had been notified and informed of his rights. She re-emphasises his rights as per the charge sheet. He was informed of his right to closing and mitigation and his right to appeal, should same be necessary. The Applicant pleaded not guilty. The employer proceeded to call witnesses which the Applicant’s representative could cross examine. The Applicant could also call witnesses and present his case. Closing arguments were to be in by 11 May 2021. Closing was received from both parties. The finding was issued on 20 May 2021. Pages 14 to 24 of R1 was the said finding. She had used her maiden surname of “Mashile”. Page 13 of R1 was proof that the said outcome was sent to the parties (Ms Ngwenya and Mr Monyatsi) via e-mail on 20 May 2021. It was specifically sent to Mr Monyatsi at thabomonyatsi@yahoo.com, which was the e-mail address he supplied on the attendance register.

13. The report/outcome on pages 14 to 24 of R1 set out the reasons for the finding. Page 26 of R1 contained an email from her to Mr Monyatsi, dated 26 May 2021, where he is reminded to submit mitigating factors and that they were in fact due the day before. He did not respond to same. He was already in contravention of the last paragraph on page 24 of R1, which directed parties to submit mitigation and aggravation by no later than 25 May 2021. The Applicant’s representative had used the same yahoo.com e-mail address on pages 40 and 41 of R1, when he had sent the closing arguments, on 11 May 2021. This was accordingly the e-mail address she had on record for the Applicant’s representative. The e-mail she had sent to this e-mail address also did not bounce back, which is what would have happened if there was an issue with the said address. The sanction had been sent to the HOD for it to be communicated.

14. On 9 December 2020, she had received an e-mail from Ms Amelia Ngwenya, from the Respondent, which read, “Good morning madam chair. I have noticed my e-mail does not send e-mails to yahoo. It’s a security feature. Try thabomonyatsi@gmail.com given this sometime back as an alternative. Thanks.” Despite this she had never had issues with e-mails going through to yahoo accounts and if there was an issue, the e-mail would have bounced back. She did send Mr Monyatsi an e-mail to his gmail address on 9 December 2020 to confirm his availability for 26 and 27 January 2021 (see page 37 of R1). She had used the yahoo account all along and only used the gmail account this one time. Subsequent to the one time use of the gmail account, she used the yahoo account. Mr Monyatsi had also used the yahoo account on page 39 of R1, when he sent in a medical certificate on 30 November 2020. Mr Monyatsi had never indicated that he had any issues with e-mails being sent to the yahoo account.

15. She confirmed that although she was not an IT specialist, she knew that if e-mails did not go through, the system would confirm same and they would bounce back. She was sure that if there was a security feature preventing e-mails being sent to yahoo accounts, she would have been advised of same. She could not indicate where the Applicant’s representative had responded to any of the e-mails sent to the yahoo account. She agreed that it was a norm in the department that the initiator was used as a link between the chairperson and the employee representative. All correspondence on pages 36 to 42 of R1 included the initiator (Ngwenya) except the reminder of mitigation. There was no indication that the Yahoo e-mails had not been received and as such she saw no need to use Ms Ngwenya as a link. If the Applicant’s representative had not received the Yahoo e-mails, he should have queried same.

16. It was common knowledge that a finding would be received after a process and if same was not received, it should have been queried. In the e-mail from Ms Ngwenya on page 37 of R1, dated 9 December 2020, she said there was a security feature on her e-mail (emphasis on “her”). Page 42 of R1 showed that the one e-mail sent to the gmail account were responded to. She was not called by the MEC as part of the appeal process.

MR BALDWIN MBUYA

17. Mr Baldwin Mabuya testified that he was employed at Illinge High School as the deputy principal. He had been at the school, since October 2017 and was still there. In relation to allegation 1, “disruption of the fund raising event on or around 17 July 2019”, he testified that he had arrived early on the day. The foyer was being used for the collection of monies. The Applicant and his colleague, Mr Ngqolowa, arrived and started asking learners why they were paying. They told learners to move in without paying. Learners refused and the two of them moved out. They noticed that the number of learners coming in had dropped. He went out to check and saw them using the other gate for free. He went to the gate and found the Applicant and his colleague there. The patroller at the gate said that the Applicant and his colleague said that the gate must be opened for learners to come in free. He then locked the gate and took the key. He went back to the foyer and they followed him. As they entered the foyer, the Applicant and his colleague started pushing tables. Money fell all over the floor. While doing so, they were telling learners to come in for free. They closed the door and started re-arranging. The Applicant and his colleague left the area and the fund raising proceeded. The fund raising was for the Grade 12s and it was a civvies day.

18. After submitting the money, the matter was reported to the principal. The Applicant and his colleague had acted like hooligans. Learners said that teachers cannot conduct themselves in that way. Their behaviour was unacceptable and disgraceful. The incident occurred at approximately 08h00 to 08h30. Learners start coming to school from about 07h45 and there were cues. Class was supposed to start at 08h00, but there was a delay due to the collection of the monies. Some learners were already in the classes with teachers and some were still coming in. Classes had started, but educators knew what to do with those coming late. He disputed that the Applicant and his colleague had come from class and confirmed that they were arriving for work and had come in through the gate. The Applicant had come the first time and asked learners why they were paying. The cue was entering the foyer. And some learners were outside. He then moved out and opened the gate and came in a second time and started pushing tables. Learners who did not pay would be allowed in afterwards. He denied that it was these learners who disrupted the fundraising. At the time of the tables being pushed, Grade 12 representative council learners, the Applicant, Mr Ngqolowa, Ms Hlatswayo (educator) and he were present. He was not sure if senior management had spoken to them on the day. The principal was in her office at the time of the incident. He believed that the principal could hear the chaotic situation from her office. She did not intervene, but waited for his report. He gave a verbal report once the money was sorted and all learners were in and later in writing. He was not sure if any money was lost on the day.

19. In relation to charge 2, “intimidation and victimization of Ms Jakuta (principal) on or around 26 April 2019”,
he testified that the principal had received information that a class was dirty and chaotic. She asked him to accompany her to the said class. The Applicant got them on the way and asked to speak with the principal. She said to him that she was attending to a matter and would see him later. Mr Mabuya and the principal then went to the class. The Applicant also arrived there. The principal addressed the class and requested them to go to assembly so that the class could be cleaned. The Applicant followed them to assembly. On their way, whilst at block C on the first floor, as they were going to go down the stairs, the Applicant started speaking in IsiZulu. Translated, he said “We heard you pursuing a case of assault against Mr Ngqolowa. You will get mysteriously ill.” He then accompanied the principal to assembly.

20. At the time of the alleged incident, he was aware that the Applicant was a union member, but was not sure of his position. He agreed that he should have known the Applicant was a union office bearer as he was part of senior management. As SADTU was troublesome at the school he was mostly not part of meetings with them. The Applicant and Mr Ngqolowa were always together and were part of a group that used to bring issues to the school. He felt the Applicants actions were wrong, in terms of charge 2, as the principal had asked him to wait when he approached her. He should also not have said what he did. At the time, the principal, Applicant, learners and he were present. He did not know if the Applicant had powers to make someone sick. He denied that he was competing, with the Applicant for a union leadership position.


MS HAPPINESS LEBOTSA

21. Ms Happiness Lebotsa testified that she was employed as a PL 1 educator at Illinge High School. She had also been there in 2019. She knew the Applicant. In relation to allegation 1, she testified that on the afternoon of 16 July 2019 she went to the principal’s office to sign out. The Applicant and his colleague (Ngqolowa) came into the office and took the time book whilst she was still signing it. They went out of the office with the book and she and the principal followed them to the foyer. They put the book on top of a table. The principal asked why they did so and took the time book back. She then left in the direction of her office and they followed her. Outside her office door there was a tug of war between her and the Applicant and his colleague, for the book. She (Ms Lebotsa) screamed for them to stop. The principal managed to open her office door and enter. The Applicant and his colleague left. She went to check on the principal, which said she was ok, after which she signed out and left.
22. On the morning of 17July 2019, she came to school. There was no book to sign in in the foyer. She went to check for the book in the principal’s office. The principal showed her through the window that the book was with Mr Ngqolowa outside the library. She and the principal then went to him. Mr Ngqolowa refused to let her sign the book. He went towards the parking area with the book. She and the principal went back to the foyer. The Applicant and Mr Ngqolowa then entered through the front door without the book. They passed them and went straight to the fund raising tables. She heard learners screaming and she turned around and saw the two of them pushing fund raising tables. They said the fundraising must stop.

23. At the time Mr Ngqolowa was in front of the library with the book, the Applicant was not far from him. She had not signed yet and was on time, therefore the Applicant, who was already there, was not late. The Applicant had followed Mr Ngqolowa from the library in the direction of the Parking area. There were other teachers in the foyer at the time that they came in and went to the fundraising tables. Classes had not started yet. Mr Bbuya was busy at the tables at the time. She denied that there was any chaos in the foyer, on the day, before the Applicant and his colleague started the chaos. She believed that Mr Mbuya had failed to mention that she was there at the time as she was not part of those collecting money and was just there to see where she could sign in. When she heard the screams and saw the money everywhere, she had run for cover. At the time of the incident, the principal was in the foyer. She had seen Mr Ngqolowa push the tables and the Applicant was also there. The fund raising did not continue and school also did not continue as normal. She could not say why Mr Mbuya had stated that classes had started and teachers were in class. She later gave a statement about the incident to the district official.

MS NTOMBI HLATSHWAYO

24. Ms Ntombi Hlatshwayo testified that she was an educator at Illinge High School and that she had been there for four years this year. The Applicant was her former colleague. In terms of allegation 1, she testified that he arrived early and found Mr Mbuya at the foyer. The grade 12’s were collecting money. She went to the principal’s office to sign the time book at approximately 07h10. She then went back to Mr Mbuya and the grade 12’s to assist. The Applicant and his colleague came and then went outside to ask learners why they were outside. They saw learners entering through the big gate that was supposed to be closed. Mr Mbuya went to check. He returned and stated that he had locked it and taken the key from security. Mr Zulu and his colleague returned and told the learners to come in. This included those with uniform on.

25. As the Applicant and his colleague were pushing the learners to come in, they moved between the desks and in so doing both they and the learners were pushing the desks and money fell on the floor. Mr Mbuya, the grade12’s and herself managed to stop the learners from coming in. The Applicant and his colleague then left. They continued to collect and the event continued. Most learners in uniform did not want to pay. Classes had not started at the time of the incident. At approximately 07h10, when he arrived, she found the attendance book in the principal’s office. The event had been properly communicated as the principal had held a briefing earlier in the week. She did not see any reason to run away. After the collection, the classes continued as normal. There was no meeting held about the incident later. She was aware that the Applicant and his colleague were part of the union leadership.

MS PHINDIWE JAKUDA (Principal)

26. Ms Phindiwe Jakuda testified that she had been principal since 1 December 2018. In 2019, they held a fund raiser. It was held in consultation with school management, staff and the SGB. It was a civvies day held on 17 July 2019. In terms of allegation 1, there were two entrances for the day. The learners were to use the small gate into the administration office, pay their R5, and proceed to class. Those that did not have the R5 were allowed to enter the school. The event started at approximately 07h15. She was in her office while the event unfolded. Whilst in her office she heard screams. She went out of her office to check. She saw the Applicant and his colleague shoving and toppling tables. They said “No fundraising today”. Some learners assisted in re-organising tables and those collecting helped pick up the coins. The Applicant and his colleague then left the reception area. Prior to this Ms Lebotsa had been with her in her office.

27. The Applicant and his colleague went to the reception area before teaching time and as such there would have been no reason for them to query/complain about learners not being in class. The two of them toppled the tables. Their aim was to disrupt. After the incident, the day continued per normal with teaching from 08h00 until 14h15. R1 pages 56 and 57 was a disciplinary hearing outcome and sanction, where the Applicant had been found guilty to similar misconduct to that of the current allegation 1. The sanction imposed was a suspension for a month without pay as well as a final written warning. The Applicant had signed for the outcome and sanction on 21 May 2019. The suspension without pay ran from 1 June 2019 until 30 June 2019. The suspension ended on 30 June 2019 and the current misconduct was committed on 17 July 2019. Mr Ngqolowa was also dismissed for the misconduct on 17 July 2019.

28. In relation to allegation 2, she testified that on 26 April 2019, she was in class with the grade 10’s with Mr Mbuya. There were issues with discipline and she went to address them. Mr Zulu came in and said he wanted to talk to her. She said he must wait until after she finishes with the learners. He continued to stand there. As it was two classes they asked them to go to assembly area so that they could address them at the same time. She and Mr Mbuya followed them to the assembly area. When they were about to go down the stairs Mr Zulu followed and said that they were aware they were investigating Mr Ngqolowa for an assault case against a learner. He said “Uzogula” in IsiZulu, which means “You will get mysteriously sick”. She asked Mr Mbuya if he heard what was said and he said yes. They then went to assembly to address the learners. She was not sure where the Applicant went. She was not sick at the time and wondered what he would do to make her sick. She felt threatened and unsafe in his presence within the work space.

29. R1 pages 43 to 55 was an interim protection order that she had obtained against the Applicant on 6 May 2019. R1 pages 48 to and 49 contained the details of the alleged harassment by the Applicant. The police came to the school and asked to see her. They asked for the Applicant to be called. They explained the complaint to him, served the papers on him and informed him of the court date. The two others mentioned in the application were from different schools. She went to the court on the day and they waited to be called in. Approximately two hours later she received a call informing her that her daughter, who was sick, was getting worse. She decided to rush home to check on her daughter and as such she did not go in at the court. She did not abandon the matter due to a lack of substance, as she had spent an entire day there when she referred the matter and had attended on the court day, despite it being a school holiday. and she being necessitated to leave her sick child at home. Her child has health issues and has had several operations.

30. Although she did not receive any formal confirmation from the union that the Applicant was a union official, she later learned that he was as he came to the office with a letter requesting leave for a union meeting. She could not recall exactly when this was, but knew it was after the fund raising. Although the harassment continued, she did not have time to report it continuously. She realised that the aim of the Applicant and his colleague was to make the school ungovernable. It was the first time she had dealt with such an issue and therefore when she missed the court date, due to her sick child, she did not go back. No final protection order was therefore issued. She was only informed later by an educator who the persons were that came to her office. She was now aware who the current representative of SADTU was and they have decent interaction.

31. She disagreed that “Uzogula” meant you are talking nonsense. She believed that as it meant “you will get sick” and given that she was not sick at the time, it meant that she would mysteriously getting sick. She had tried to speak with the Applicant about his behaviour, which undermined her leadership, but there was hostility and so he was difficult to engage. She had approached the employer before she approached the court. She had written to the department, but the Applicant continued his harassment. After the incident of 26 April 2019, she went to the police. The Applicant had started at his new school on 1 November 2019. It was a cross transfer. This was where an educator requests a cross transfer, in writing, and another educator does the same. The SGB’s look into this and decide whether to approve or not. She was aware of the Applicant’s request and the SGB had approved same.

32. She denied that she was biased towards SADTU or that she had issues with young educators that challenged things. During the time of the previous misconduct, as per R1 pages 9 and 10, having been committed, her predecessor, Mr Mtimkulu, was the principal. He was a SADTU member and as far as she was aware he was the chairman of the union branch.

MR PATRICK SELOWA (DIRECTOR LABOUR RELATIONS of Respondent)

33. Mr Patrick Selowa testified that precautionary suspensions and transfers are decided on by the HOD based on his recommendation. Same is based on where there are allegations of serious misconduct and the employee’s presence can affect investigation or safety. The charges against the Applicant and Mr Ngqolowa were different and therefore, Mr Ngqolowa was ultimately suspended and the Applicant not. In terms of the LRA, suspension was not part of the issues to determine the fairness of a dismissal. If an employee felt he/she was suspended unfairly, they could refer an unfair labour practice dispute. A “non- confirmation of precautionary suspension” was where there was initially an intention to suspend, a response was received and a decision was taken not to confirm/go ahead with the suspension.

APPLICANT’S CASE

MR LWAZI ZULU

34. Mr Lwazi Zulu testified that he arrived at Illinge High School in August 2016. He was dismissed in September 2021. When he arrived at the school, fresh from varsity, Ms Jakuda was an HOD. He taught in her department. He did not receive training or the Code of Conduct. He was just told after 6 months that he was permanent. No induction was done. He was elected to SADTU leadership in 2018. As part of his responsibilities, in this role, he was expected to deal with labour related matters of educators and also to ensure that they were teaching in class. When there were labour issues they would ask for an appointment with the principal, but it was difficult as she and Mr Mbuya did not want to meet with them.

35. In term of allegation 1, on the day of the fund raiser he arrived early. He taught grade 12 and wanted to asses them. He signed the attendance register at the main office at approximately 07h00 and then went to class. Educators came to him at about 08h00 to query why so few learners were in classes. He went to speak to his two union colleagues. They decided to go and see the principal to hear when they could expect the learners. There were still a large number of learners outside. Learners were pushing each other to get in. They pushed the tables and there was havoc. Money landed on the floor etc. They went back to the classes to wait for the learners. He did not open the big gate. He was not there to question the process being followed, as he was not the principal. They simply wanted to know when they would receive the learners. He did not push the learners, as claimed by Mr Mbuya, as it would be defying authority. He believed that Mr Mbuya fabricated same as he had lost the election. Learners without money were locked out. Classes were supposed to start at 08h00. They went to query the situation after this and they only went as they were union leadership. He denied that he had pushed tables or said “No fund raising today”. He did not think staff were informed of the fund raising. The alleged incident was not spoken about in the staff room.

36. In relation to allegation 2, he testified that he was shocked when he received the charge as he does not have powers to make a person sick. Learners had come to Mr Ngqolowa and told him that the principal had asked if anyone was beaten or threatened by him in class. Parents also told him that the principal wants them to open a case against him. Mr Ngqolowa had reported this to them and asked them to speak to the principal about it. He and Ms Buthelezi went to the principal, as union representatives. They went to submit forms for early departure to a union meeting and found her outside a grade 10 class. It was lunch time. They went up to her and asked about a meeting regarding Mr Ngqolowa as well as the early departure, but she did not respond. They went back to their office and then to the deputy principal. They explained about the SADTU meeting and gave in the required forms. They left at 12h30. There was no way that he would tell someone he would bewitch them because you could be killed for same. He did not have such powers, but if he did he would not tell the person and forewarn them and by so doing become a suspect. He did not say she would get mysteriously sick.

37. The principal did not like the union and saw them as the enemy. There was a time when learners wrote examination and the teachers were ready to submit marks, but she gave the average marks to the learners. They had reported this to the IDSO. This is where she started hating the union. They had also questioned the implementation of the rotation system. She did not like people questioning her. She was happy about his cross transfer. Mr Mabuya could not have heard what they spoke to her about as it was lunchtime with learners outside and he was too far away. He was shocked that she stated she felt unsafe and felt she was looking for sympathy. They had attended court for the protection order issue. The principal was also there from approximately 08h00. They waited as there were many cases. Later in the day they were called in, but when the magistrate called Ms Jakuda, she was not there. He asked if there was any message from her and when the policeman said no, the protection order was cancelled and they went home. There was no follow upon the protection order. They had called the union executive of the area to speak to her and intervene as she did not want to speak with them. They had not experience issues with other layers of school management, other than Ms Jakuda.

38. He agreed that the crux of his version was that Ms Jakuda did not like SADTU and did not want to give them the opportunity to exercise their role as the union. At the time of the misconduct on R1 pages 9 and 10 being committed, Ms Jakuda was his HOD and the principal was Mr Mtimkulu was the principal. He belonged to SADTU and was the chairman of the branch at the time. The charge for this previous misconduct was similar in elements to the current charge 1. Despite being advised that he could appeal the outcome and sanction of the previous misconduct, on page 9 and 10 of R1, he had not done so. He agreed that his version that Ms Jakuda was eager to have him cross transferred even before any paperwork came in, was never put to her. He denied that it had not been put to Mr Mbuya that he was not able to hear what was said to the principal due to the distance he was away. He did not dispute that it was not put to the principal that she gave average marks the learners, but stated that did not interrupt her and knew he would come and give the correct version.


39. He agreed that there was no contact between him and the principal during his suspension. He further agreed that there were no incidents between 8 July (his return from suspension after the holiday) and 17 July 2019 (date of the incident contained in allegation 1). He agreed that when he arrived on the day, the fundraising activity had started. Although he had not had any issues with Ms Hlatswayo he felt she was being dishonest about the fact that learners with uniforms were allowed in and that this was due to her being new and perhaps wanting to be permanent. He also felt that Mr Mbuya was dishonest on this point, although he did not know what the reason therefore was. He did not know why Ms Libutsa would be dishonest on this point and speculate that perhaps she hated the union and as she was favourite of the principal. He did not dispute that this was not put to her. He further suspected that Mr Mbuya was not being honest about what transpired, at the fund raising, due to his issues with the union. He was also lying when he said he heard him saying to the principal that she will get sick.

40. He agreed that when he did not get a response to his complaint, about the principal allegedly insulting him, as per the e-mail on A2, he did not escalate it further. He agreed that he had not escalated his complaints through all the levels available. He agreed that his initial charge sheet, which lead to his dismissal was given to him in October/November 2019 and that the union intervened due to a lack of consultation. He also agreed that a new charge sheet, after consultation, was given to him in 2020. He was not made aware of the grievance procedure.

MR XOLANI NGQOLOWA

41. Mr Xolani Ngqoowa testified that he started at Illinge High School on 1 June 2016. He knew the Applicant who was also employed there, but the Applicant arrived after him. They were both union representatives. They served on the union together from 2018 until late 2019. With references to allegation 1, he was not sure of the date, but knew that they had come to school in the morning. After 08h00 there was a lack of attendance in class. Educators approached the Applicant as they were frustrated. He approached Ms Bhutalezi and himself as fellow union representatives. They decided to go to the principal to enquire and as they entered the foyer they encountered a noise and saw lots of learners standing outside wanting to come in. They saw learners forcing their way in and tables being pushed as a result. Money fell on the floor. They had to move back and could not proceed to the principal’s office. The principal was not in the foyer at the time. He was not sure which teachers were there at the time, but did not see Mr Mbuya. He and the Applicant had not opened the gate or pushed learners, causing the money to fall. They also did not push tables themselves. The allegation was fabricated as it seemed that the principal was against the union. As they could not proceed to the principal’s office and they saw learners coming in, they went back to class. The first period was affected, but the rest of the day ran as normal. There was no communication to staff about the fundraiser.

42. He had also attended court for the protection order and when Ms Jakuda was not present, the case fell away. After she abandoned the protection order, their professional relationship was sour. They were not aware of the grievance procedure, but had attempted to air their grievances as they had written letters to various levels. He was shocked to hear he was being investigated for assault of a learner and he mandated the Applicant and Ms Bhutalezi to set up a meeting with the principal to get information on the issue. The principal did not like to be questioned. She took a sole decision on rotation, educators complained and the Applicant raised the issue as the union representative. She had also given “fraudulent marks” when educators could not submit on time. The Applicant had also addressed this with her. Those raising issues became her enemy.

43. His current employment status with the Respondent was that he had been dismissed and was challenging same at the ELRC. His arbitration was currently unfolding and he had listened to the Respondent’s witnesses in the matter. He had been charged for misconduct in the past, prior to his dismissal. The Applicant had also been charged before. The allegations against them were similar, as per page 9 of R1, and the verdict was also the same. Neither he nor the Applicant had appealed same. He agreed that at the time the charges in the previous allegations against them were laid, Mr Mthimkulu was the principal and that he was a member of SADTU. He was the chairman of the branch. He agreed that the elements of the misconduct on page 11 of R1 was the same as that which he and the Applicant had previously been suspended for.

44. He agreed that there was about nine days between their return from suspension, after the holiday, and the alleged incident contained in allegation 1. He did not dispute that a final written warning was valid for 6 months and that therefore, the final written warning was still valid when the misconduct in allegation 1 was allegedly committed. He agreed that prior records must be considered in determining the fairness of a dismissal, but felt that background also needed to be considered in that they did not appeal as the Respondent has pattern of giving harsher sanctions on appeal. Whilst there was no provision in the grievance procedure for them to have brought the three persons with them to address the principal, they had reported the matter to them as they were union leadership of the branch, whom they had asked to intervene. He agreed that there was no evidence of any bad blood between Ms Hlatswayo and himself or the Applicant. He did not know what time the fundraiser started.

MS PRECIOUS BUTHELEZI

45. Ms Precious Buthelezi testified that she had been working at Illinge High School for 21 years as an educator. She was also a SADTU site steward until 2020. The Applicant had not intimidated the principal. In relation to allegation 2, she testified that on the day in question, she and the Applicant were on their way to the principal’s office to query about the accusation against Mr Ngqolowa, who was their fellow SADTU site steward. She informed them that the meeting was not planned and that she would not see them. She argued with the Applicant. She was present and never heard the Applicant say anything about “mysteriously ill”. The principal was an arrogant lady. In their culture, if you wanted to make someone sick, you would just do so and not tell them. Mr Mbuya was far away at the time and could not have heard what was said. In the days after the alleged incident, the principal was avoiding them and did not want to meet with or talk to them.

46. In relation to allegation 1, she testified that on the day, it was after 08h00 and most learners were not in class. Their members called them to query the situation and they went to the office to query the situation. When they got there, there were many learners wanting to force through and they pushed the tables which caused money to fall. They were standing in the administration area at the time and she believed the principal was in her office. They then went back to class and the learners followed. The fundraiser was not communicated to educators.

47. She disputed that they were interfering with the principals duties relating to discipline and the investigation when they went to query about the investigation against Mr Ngqolowa. She was not aware that Mr Ngqolowa had been charged and that one of the charges was for assault. She taught IsiZulu and “Uzogula” meant “you talking nonsense”. “Uyagula” meant “you are sick”. She agreed that the fundraiser started at approximately 07h00 and that teaching normally started at 08h00. She disputed that the alleged incident occurred at around 07h45 and claimed that it occurred at around 08h15. The reason why google indicated the meaning of “uzogula” as “you will be sick” was because they had figurative language in IsiZulu. As a union, if labour matters remained at the school, the next step, in terms of union protocol, was for them to report it to the branch executive. She had been teaching IsiZulu for approximately 20 years. The principal did not become mysteriously ill.

ANALYSIS OF EVIDENCE AND ARGUMENT

48. The Applicant’s dismissal is not in dispute and the onus is therefore, in terms of Section 192 of the LRA, on the Respondent to prove that the dismissal of the Applicant was fair. Section 188 of the LRA further states that a dismissal that is not automatically unfair is unfair if the employer fails to prove that the reason for dismissal was for a fair reason relating to the employee’s conduct and was affected in accordance with a fair procedure. This must be decided on a balance of probabilities.

49. The Applicant has challenged both the procedural and substantive fairness of his dismissal.

PROCEDURAL CHALLENGE

No written outcome and sanction was received from the presiding officer and no chance to give mitigation.

50. The Applicant’s first procedural challenge is that he never received a written outcome or sanction from the presiding officer.

51. The requirements for a fair procedure, in a dismissal for misconduct matters, are set out in Schedule 8, Code of Good Practice: Dismissal. Item 4 states that normally the employer should conduct an investigation to determine whether there are grounds for dismissal. 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 allegation. The employee should be entitled a reasonable time to prepare a response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with a written notification of that decision. (Own underlining)

52. The requirements for procedural fairness for misconduct dismissals were further confirmed in the matter of Avril Elizabeth Home for the Mentally Handicapped v CCMA and others (2006) 27 ILJ 1664 (LC); [2006] 9 BLLR 833 (LC), where the court held that the employer was merely required to conduct an investigation, give the employee or his representative an opportunity to respond to the allegations after a reasonable period and thereafter to take a decision and give the employee notice thereof. (Own underlining)

53. It is not disputed that the outcome was sent to the Applicant’s representative via an email address that had been supplied as the e-mail address on record for the said representative. This was a yahoo account. The issue raised is that the Applicant’s representative claims that he never received it. From the evidence, the said e-mail address was used by both parties during the process. On 9 December 2020, the initiator in the internal disciplinary enquiry informed the chairperson that she had been having a security issue whereby her e-mails were not sending to yahoo accounts. She then gave an alternative gmail account for the Applicant’s representative that he had given sometime back as an alternative. The chairperson did send one e-mail, regarding availability, to this alternative address. All other e-mails were sent to the yahoo account. She testified that she had never had any issues with her e-mails going through to yahoo accounts and that if there was a problem with same it would bounce back and she would get a notification of same, which never happened. There was no indication to her that the Applicant’s representative did not receive her e-mails. She further testified that it was common knowledge that a finding would be received after a process and that the Applicant’s representative should have queried if he did not receive same.

54. In my view, there is nothing convincing me that the outcome was deliberately sent to an incorrect or non-functioning e-mail. What would the chairperson gain by doing so? She even sent a reminder about the submission of mitigating factors, which cut of date had expired. Surely, if she did not want the Applicant’s representative to receive the outcome or submit mitigating factors she would not have taken the time to send the reminder and effectively extend the aforementioned cut off time? I do not believe that an e-mail from the initiator stating that she was personally having issues with her e-mails going through to yahoo accounts and giving an alternative that had been given to her some time back can lead to the conclusion that the chairperson should now automatically have used this e-mail address for all future communications. There was no other reason for her to believe there was a problem. Clearly the Applicant’s representative also did not believe there was a problem. If there was an issue with the e-mails going through, I believe it was a bona fide error which neither party was aware of at the time. Surely, if all other communications were sent to the yahoo address and nothing was being received, in relation to the case, there should have been a query or follow up.

55. In short, given the above, I believe that there was compliance with the requirement of giving notice of the outcome. The fact that it may not have reached its destination, given the circumstances set out above, does not in my view lead to the conclusion that the dismissal was procedurally unfair. There was also a request and a reminder to submit mitigation. This was not done. Although it may have been as a result of a bona fide error that it was not submitted, I cannot conclude that same equates to unfair procedure in the current circumstances. In any event the Applicant appealed the outcome and the outcome can only be implemented once the appeal decision has been made. He could have submitted any mitigation, that he believed had not been considered and was serious enough to change the decision, in his appeal.

56. I accordingly find that the dismissal of the Applicant was procedurally fair.

SUBSTANTIVE CHALLENGES

Applicant is not guilty of the misconduct

57. The first allegation, which the Applicant was found guilty of was “It is alleged that around 17 July 2019, while on duty at Illinge High School, you conducted yourself in an improper, disgraceful and unacceptable manner in that you disrupted the fundraising event of the school by pushing the tables and throwing money collected from the learners on the floor.”

58. In terms of this charge and from the evidence, it is not disputed that on the day there was a fundraiser where money was being collected for the wearing of civvies. It is also not disputed that tables were pushed around and that it resulted in money falling on the floor and chaos. What is in dispute is how this came about and who was responsible for same. There are some differences in the versions, such as what time it occurred, etc. I accept that there may be some variance on certain points of recollection given that the incident occurred over thee years ago. In essence, Mr Mbuya testified that the Applicant and his colleague instructed learners to enter without paying and pushed tables causing money to fall on the floor. He placed himself, the Applicant and his colleague, grade 12 representative council learners, Ms Hlatswayo at the scene at the time of the incident.

59. Whilst I can accept that there may be some deviances in recollection given the time that has elapsed, there are certain glaring differences which cannot be overlooked. Ms Lebotsa’s testimony is to a large extent and example of this. She claimed that the fund raising did not continue and the school also did not continue as normal. Other witnesses claimed that the money was eventually picked up, the fundraising continued and the school continued as normal, except perhaps for the first period being affected. Given this glaring difference, I do not believe that her version is reliable.

60. Ms Hlatshwayo testified, in essence, that she found Mr Mbuya in the foyer. The grade 12 laerners were collecting money and after signing the attendance register, she went to assist. The Applicant and his colleague arrived and then went outside. Mr Mbuya went to check outside and when he returned, he informed her that he had locked the big gate and taken the key. The Applicant and his colleague returned from outside and told learners to come in. As the Applicant and his colleague were pushing the learners to come in, they moved between the desks which caused both them and the learners to push desks causing money to fall on the floor. The Applicant and his colleague then left. I believe that whilst there may be some minor differences in her version, it to a large extent corroborates the version of Mr Mbuya.

61. Ms Jakuda testified, in essence, that she was in her office whilst the fund raising event unfolded. She heard screams and went to check. She saw the Applicant and his colleague shoving tables. As such, with the exclusion of Ms Lebotsa, I have three witnesses, the principal, deputy principal and an educator who effectively confirm that the Applicant and his colleague either pushed the tables or pushed learners causing the tables to be pushed, which resulted in the money falling on the floor and the chaos.

62. From the Applicant’s side, he testified, in essence, that educators came to him in class and queried where the learners were. He went to speak with his two union colleagues about the situation. They decided to go to the principal to hear when they could expect the learners in the class. There was still a large number of learners outside and learners were pushing each other to get in. The learners pushed the tables, there was havoc and money landed on the floor. They then went back to their classes to wait for the learners. They had simply gone, as union representatives, to query when they could expect the learners. He believed that Mr Mbuya had fabricated his version as he had lost the election.

63. Mr Ngqolowa testified, in essence, that educators had approached the Applicant about a lack of attendance in class and that he had then approached Ms Bhutalezi and himself as fellow union site stewards. They decided to go and enquire from the principal and upon entering the foyer they encountered a noise and lots of learners outside wanting to come in. The learners were forcing their way in and tables were being pushed as a result and money fell on the floor. He believed the allegation was fabricated as the principal did not like the union. As learners were coming in, they went back to their class.

64. Ms Bhutelezi testified, in essence, that they went to query when the learners would be in class. Upon their arrival there were many learners trying to force their way in and who pushed the tables causing money to fall on the floor. They then went back to class and the learners followed. The versions of the Applicant and his witnesses effectively also corroborate each other. Given that the versions of the parties a diametrically opposed, it is clear that only one of these versions can be correct.

65. If I look at the probability of the versions, I find the version of the Respondent to be the more probable one. I say this for the following reasons. What would the Respondent’s witnesses gain by falsely implicating the Applicant? The only reason that seems to be put forward is that they did not like the union. I do not agree with this contention as by removing the Applicant and possibly his colleague, they would still need to deal with the said union and any of its future representatives. Ms Buthelezi, who on her own version did not get along with the principal at all, would still be there. No tangible reasons could be put forward as to why the principal, deputy principal and an educator would all decide to fabricate the same story. Mr Ngqolowa conceded that there was no evidence of bad blood between Ms Hlatshwayo and himself or the Applicant. Why would she then fabricate a version against them? Previously, the Applicant was charged for similar misconduct at a time when he principal of the school was not only a SADTU member, but in fact the chairman of the branch. I further find the version of the Applicant and his witnesses to the effect that the fund raiser was not communicated to staff to be improbable. What would the principal stand to gain by hiding this information? Surely, it would benefit her by having parties informed so that they knew what was happening and could assist in the fund raising where possible and plan accordingly. The claim is not that she hid this information from the union representatives, but that it was not communicated to the educators at large. I can see no reason for doing so. They were all school going learners at a time and kids being kids I further find it unlikely that learners would on their own accord be so eager to get to class that they would defy instructions and push to get in. Whilst there may have been some eager learners, who wanted to get on with class, I do not believe that this would be the case for most.

66. The Applicant and his colleagues, as per their version, make the effort to go and find out when learners can be expected in class. They arrive to find tables being pushed, money falling on the floor and essentially chaos with many learners still outside and they then casually proceed back to class without asking the question they came for, or any other question for that matter. How did they know when they could expect the learners, given the large number still outside and the chaos? What were they going to answer the educators who they say had asked them? Given the fact that the Applicant and his colleague were both charged for the misconduct and in fact had previously been charged for similar misconduct together, I believe it is more probable that they in fact have a reason to give the same version. The third witness is also a fellow site steward and, in my view, also has an interest in corroborating their version. A large part of the Applicant’s defense is built on the claim that the principal did not like the union, and young challenging educators, and yet all witnesses called by the Applicant hold positions within the union. Whilst this does not mean that their versions must be rejected on this basis, and it is not for me to dictate who should be called for either party’s case, I find it strange that no one other than the Applicant and his two union colleagues, one of which was his co-accused were called.

67. Also, if their intention was not to go and challenge the fundraiser or to disrupt same, but rather merely to enquire as to when they could expect learners in class, why was it necessary for all three of them to go? Surely, one of them could have done so and come back with the answer? On the Applicant’s own version he was an educator who often challenged decisions when he did not agree with them. I believe it is more probable that they in fact went to challenge the situation, hence not only one going. The Applicant and his colleague were also found guilty of similar misconduct in the past, and whilst that does not mean that they are guilty of the current misconduct, it does, in my view, indicate that they have in the past acted in a similar manner. As stated, this was at a time when there was a different principal, who most certainly could not have had any issues with the union, given that he was the chairman of the branch. The Applicant‘s version is also that they were locking out those learners who could not pay. What purpose would this serve? If there were was large number of learners not allowed in to school, as claimed, what benefit would be gained by the school from doing so? I cannot think of any. I also find strange that the chaos would break out right around the time that the Applicant and his colleague arrived on scene and this after the fundraiser had been going on for some time already.

68. I accordingly find that, on a balance of probabilities, the Applicant is guilty of the misconduct contained in allegation 1.

69. The second allegation which the Applicant was found guilty of was “It is alleged that on or around 26 April 2019, while on duty at Illinge Secondary School, you intimidated and victimized Ms Jakuda, the principal of the school, in that you told her that if she pursues with the case of assault against Ms Ngqolowa she will get mysteriously sick.”

70. On this allegation, the version of Mr Mbuya and Ms Jakuda was effectively that they were attending on a grade 10 class in relation to discipline issues, when the Applicant arrived and asked to speak to her. She informed him that she was busy and that it would have to wait until after she was finished. They then moved to assembly and the Applicant followed them. On the way, before going down the stairs, the Applicant informed her that they were aware of the investigation against Mr Ngolowa, for assault, and that she would get sick.

71. On this allegation, the version of the Applicant, and Ms Buthelezi was effectively that Mr Ngqolowa had asked them to speak to the principal about his issue and they then went to her about this. They found her outside a grade 10 class. They asked for a meeting about Mr Ngqolowa, but she ignored them. He did not tell her that she would get sick and he did not have powers to make someone sick. Mr Mbuya was too far away to hear what was said. The principal fabricated this version as she did not like SADTU.

72. Much was made of whether or not the Applicant had the powers to make someone sick and whether or not the principal in fact became sick. This, in my view, takes the matter no further. If such threat was in fact made, whether or not the person making the threat could carry it out or in fact did carry it out is irrelevant, particularly when the person being threatened was not aware of whether or not it was capable of being carried out. Yet again we have two diametrically opposed versions as to whether or not the threat took place. The claim that Mr Mbuya was too far away to hear what was said, was not put to him in cross examination. I accept the reason given by Ms Jakuta for leaving on the day of the court hearing for the restraint. I believe that the fact that she took the time to initiate the restraint and that she initially attended the court, on what was a school holiday, indicates that the probability is that she indeed felt threatened. Why did the Applicant continue to follow her to assembly, when she had told him that she was busy with the learners and could not attend to him at that stage? Why would Mr Mbuya be too far away to hear what was said? He was there to accompany the principal. Yet Ms Bhutelezi could hear all that was said. I find this to be improbable.

73. On the Applicant’s own version it was confirmed that he indeed found the principal at a grade 10 class. Clearly she must have been there to do something. Her version that she went to address certain issues with the class is therefore, in my view highly probable. It is also not disputed that Mr Mbaya was in the area. Where exactly, or more particularly how far away, is, however, disputed. The applicant’s version is that the discussion with the principal took place at the said class. If this is so, I find it probable that Mr Mbuya would have been close enough to hear what was said as he had accompanied her to address the class. Why would he suddenly be so far from her that he could not hear what was said? On the other hand the Respondent’s witnesses claimed it happened on the way to assembly, before going down the stairs. Here again, Mr Mbuya had accompanied the principal to address the class and was accompanying her to assembly. Why would he be so far from her that he could not hear? On either version of where they were at the time, I believe the probability is that Mr Mbuya would have heard what was said. MS Buthelezi that after the principal did not want to speak with the Applicant, they argued. Surely this would have drawn the attention of those there at the time, including Mt Mbuya,

74. The Applicant and his witness deny that he said that she would get sick. How would such a specific claim come about? It is a very specific claim. If the principal wanted to deal with the union, or its representatives, why only make the claim against the Applicant? Ms Buthalezi was also there. What would they gain by “getting rid of the Applicant” when Ms Buthalezi, who, on her own version, has a sour relationship with the principal would still be there? Given the fact that the principal did not want to give the Applicant an audience at the time and that as per Ms Bhutelezi’s version, they argued, I believe it is probable that this may have angered the Applicant, particularly in view of the Applicant’s version that she disliked the union and was effectively undermining them. There was also a serious allegation pending against the Applicant’s union colleague.

75. I accordingly find that, on a balance of probabilities, the Applicant is guilty of the misconduct contained in allegation 2.

If found guilty, the sanction was too harsh.

76. The Applicant claims that, even if he was guilty, which he denies, the sanction was too harsh. In terms of allegation 1, it is not disputed that he was previously found guilty of misconduct of a similar nature and was still on a valid final written warning for same. He had also recently returned from a suspension for this matter as well. It does not appear that this final written warning and suspension had any effect on the Applicant. Only a few days after returning from his suspension he committed similar misconduct. It is trite that a final written warning is exactly what it says. “final”. It is effectively an employee’s last chance to rectify his/her behavior before a dismissal will follow. Allegation 2 is, in my view, very serious. I believe that to threaten or intimidate your superior in that manner can only lead to the conclusion that there was no respect for authority which is fundamental to any employment relationship. Furthermore, the Applicant has shown no remorse, but rather accuses the Respondent’s witnesses of fabricating the allegations, mainly due to the fact that they did not like the union.

77. Given the above, I do not believe that, in the circumstances of this matter, dismissal was too harsh.

AWARD

78. The dismissal of the Applicant, Mr Lwazi Zulu, was both procedurally and substantively fair.

79. The Applicant is not entitled to the relief he seeks.

Name: Clint Enslin
(ELRC) Arbitrator