PSES554-17/18GP

Case Number: PSES554-17/18GP
Commissioner: Trevor Wilkes
Date of Award: 14 March 2018

In the MATTER between

Samuel Sello Kekana
(Applicant)

and

Department of Education-Gauteng
(Respondent)

Union/Applicant’s representative: Mr Ramataga
Union/Applicant’s address:

Telephone:
Telefax: joas@ramatagaattorneys.co.za
E-mail:

Respondent’s representative: Mr Marakalla
Respondent’s address:

Telephone:
Telefax:
E-mail: Johnmarakalla@gauteng.gov.za

DETAILS OF HEARING AND REPRESENTATION

1. The matter was set down for Arbitration on 5 March 2018 at 9h00 at the Tshwane West District Gauteng Department of Education, Old Hebron College, Klipgat Road, Mabopane.

2. The applicant was represented by an attorney Mr Ramatoga and Mr Marakalla appeared for the respondent.


3. I explained that an adversarial approach would be taken because the applicant was represented by an attorney and the respondent represented by a seasoned representative.

4. Evidence in chief was explained, including documentary evidence as was the onus of proof and rights of cross examination.


5. The proceedings were digitally recorded.

6. Because hearing of evidence continued until 18h00 the parties requested, and the arbitrator granted an opportunity to the parties to file closing arguments in writing by close of business on 12 March 2018.

7. On the date of writing this award only the closing argument of the respondent had been filed.

BACKGROUND

8. The applicant had been appointed by the respondent on 15 January 1986. At the time of his dismissal he was an ordinary educator at Dr. A.T Moroesele Secondary School where he received a salary of R22,030,75 per month.
9. He was dismissed on 6 October 2070 after a hearing for misconduct. He sought retrospective reinstatement.

ISSUE TO BE DECIDED

10. I must decide whether the dismissal of the applicant was substantively and procedurally fair and appropriate relief if any.

SURVEY OF EVIDENCE AND ARGUMENT

THE RESPONDENT’S CASE

11. Grace Kekana testified that she had served as deputy principal at the same secondary school where the applicant was stationed since May 2012.

12. One of her roles had been to allocate work, being the number of classes in respect of specific subjects to various educators. Her evidence was that she had applied a system guided by the personnel administrative measures policy of the respondent to allocate work and workload using percentages and post levels to ensure that work was allocated reasonably and fairly.


13. As a result, for the teaching year 2015, the applicant was given 3 classes of mathematics literacy which complied with the respondent’s policy and which according to this witness resulted there in that the applicant was given a very reasonable and more than fair workload for the post which he occupied.

14. Her evidence was that the allocation of subjects to educators was initiated by the head of the department to whom the applicant had reported after consultation with all educators in that department. This allocation was ratified by her and the school’s principal where they were satisfied that it complied with the respondent’s policy and that this had been the case.


15. Regarding the specific subject namely math’s literacy to the applicant, her evidence was that any educator qualified to teach pure math’s would, by reason of the nature of the curriculum content of math’s literacy, be qualified to teach math’s literacy which was of a much lower standard than pure math’s.

16. Notwithstanding the allocation to the applicant the had refused to teach all the classes. According to this witness the applicant raised no internal grievance of which she was aware in respect of the allocation of the subjects allocated to him for the relevant year.


17. Regarding the 2nd charge her evidence was that on the day in question she had been in her office when an official from the district offices of the respondent had arrived to deliver to the applicant a charge sheet because the respondent had decided to charge the applicant for failing to teach some of the class is allocated to him.

18. The applicant had not been cooperative in response to the respondent’s disciplinary officer who had not provoked the applicant and had treated the applicant respectfully.

19. Instead the applicant had taken an aerosol can which he used to spray the said official in the face for an extensive period causing the room to the fill with the contents of the spray can to such an extent that she had left her office and called the principle to assist in fending off the applicant’s attack on the said official.
20. According to her and spray was highly irritating to her eyes and ability to breathe which is why she had to leave the room.

21. During cross examination she conceded that the applicant had no official documentary qualification in respect of mathematics literacy however she persisted that he has a qualification in respect of pure math’s was sufficient and that the applicant had taught the same subject previously on several occasions for several years and that the applicant had been willing to teach one of the 3 math’s literacy classes allocated to him and only failed or refused to teach the other 2.

22. Solly Mogotsi gave evidence that he had been the principal of the school where the applicant had been teaching at the time.


23. After the allocation of 3 math’s literacy classes in respect of grades 10 and 11 to the applicant the applicant had refused to teach 2 of those classes because according to this witness the applicant had stated that he was unhappy that he had not been allocated the math’s literacy classes that he had taught the previous year moving with the class from grade 11 to grade 12.

24. Regarding the 3rd charge his evidence was that after being called by the deputy principal to her office to assist with the alleged attack of the applicant on a labour relations officer he had assisted the officer by taking him to his own, being the principal’s office.

25. The applicant had followed shortly thereafter and had come into the office unannounced without requesting permission and had while holding a spray can in his hand uttered a threat to spray also this witness saying that this witness had started the whole problem.

26. His evidence was that the applicant was very angry and that the witness was afraid for his own life and that he was concerned that the labour relations officer’s eye sight was at risk because of the attack.

27. He testified that when he arrived at the school he was privy to the applicant’s personnel file and that the applicant had over a period of 2 decades been uncooperative. This he stated arose form of unwillingness to take reasonable instructions before and there had been progressive discipline. According to this witness the relationship of trust had broken down materially because of the applicant’s most recent conduct.

28. During cross-examination he elaborated that the applicant had also in respect of math’s literacy together with several educators been workshopped to prepare them to deliver effective teaching in respect of that subject although he conceded that no attendance register was available to prove this.

29. Simon Mugashane stated that he had been employed by the Gauteng department of education as labour relations officer since 2014 and that he had encountered the applicant on 29 July 2016 when he had taken a charge sheet from the head offices of the respondent to serve on the applicant.


30. He had requested the deputy principal to call the applicant to her office where he proceeded to inform the applicant of the purpose of his visit.

31. The applicant had refused to sign for the document but instead had taken an aerosol can from his pocket and proceeded to spray this witness in the face.

32. He had thereafter been assisted by the school’s principal who had taken him to his own office where the applicant had walked into the office and reached for his pocket to take the same spray canister while threatening the principal but did not actually take or use the canister to spray the principal.


33. According to this witness the contents of the spray canister had caused his eyes to become very irritated for at least 24 hours thereafter and the effect had been a very painful experience.

34. He stated that he had no personal vendetta against the applicant prior to his interaction with the applicant on the day and that although the applicant had offered an apology, this had occurred several weeks later at the criminal proceedings where the applicant had through his own legal representation at the time offered an official apology. He did not consider this to be a genuine form of remorse and he had not accepted the apology accordingly.

35. George Mbonde stated that he had been the presiding officer of the applicant’s internal hearing.

36. He had been appointed by the respondent since 2011 as labour relations officer he had chaired several disciplinary hearings on behalf of the respondent.

37. His evidence was that the disciplinary hearing of the applicant had sat several times since 16 November 2016 during which the applicant was granted several long postponements due to ill-health on 9 December 2016 to 18 January 2017 and again because the applicant’s legal representative was not present at the next sitting for a further 4 months.

38. When the matter was reconvened, an application was again brought by a new legal representative of the applicant on the basis that he was not ready to present the applicant’s case.
39. This witness considered the length of the penultimate postponement and decided not to allow a further postponement for the applicant.

40. His evidence was that he had not denied the applicant an opportunity to testify but had merely refused a further postponement.

41. In closing the respondent traversed and evaluated the evidence led and requested that the applicant’s referral be dismissed.

THE APPLICANT’S CASE

42. The applicant Samuel Sello Kekana stated that he that he was appointed by the respondent as educator on the level of ordinary teacher.

43. He admitted that he had assaulted the first complainant, the labour relations officer, but denied any threat of assault of the second complainant namely the principal. He stated that when the labour relations officer had arrived at the school, he had become angry because the respondent had, according to him, not followed through with previous disciplinary action against him and the first complainant had not been willing to discuss this issue.

44. His evidence was that he had not used pepper spray but merely deodorant which he had on his person by coincidence for hygiene reasons. In addition, he had apologized to the first complainant, which apology had been delayed only because of the intervening disciplinary action and the criminal process which followed.

45. He testified that he was not guilty of the first charge because he held qualifications to teach pure mathematics and life sciences but not math’s literacy and therefore the instruction to teach math’s literacy was not lawful as he was not qualified to teach the subject and to require him to teach math’s literacy had the effect of compromising his qualifications.

46. After raising his grievance, which according to him had been to no avail, he decided to take a risk and embark on a ‘go slow’ by teaching 1 of the 3 classes allocated to him in 2014.

47. In his evidence he stated that there had been previous instances of his reluctance to teach math’s literacy allocated to him because of the same objection, which had led to his suspension without pay.

48. Regarding the procedural aspect of his dispute he stated that he was prejudiced because the last postponement was refused with the result that his legal representative was not able to represent him.
49. In answer to a question posed by the arbitrator, his evidence was that the prejudice arising from the failure of the respondent to consult his union, prior to disciplining him, was prejudice to the trade union itself and its own objectives.

50. At the time of writing this award, the time granted to the applicant to file closing arguments had expired and none had been forwarded to the arbitrator.


ANALYSIS OF EVIDENCE AND ARGUMENT

SUBSTANTIVE FAIRNESS

CHARGE ONE

‘It is alleged that during the academic year 2015, you failed to carry out a lawful order or routine instruction without just or reasonable cause in that you refused to teach all the grade 10 and grade 11 learners in the learning area mathematics literacy, as assigned to you.

In view of the above you are thus charged in terms of section 18 (1) (I) of the Employment of Educators Act, 76 of 1998 as amended.”


DID A VALID RULE EXIST WHICH WAS REASONABLE AND KNOWN TO THE APPLICANT AND WAS IT CONSISTENTLY APPLIED?

51. The applicant who was represented did not place in dispute these elements.

WAS THE RULE BREACHED

52. I was impressed by the evidence of all the witnesses of the respondent who testified with a frank demeanour. Their evidence contained no inherent improbabilities or any indication of collusion. I have accepted what they have stated.

53. On the contrary I found the applicant’s evidence to be very unreliable. He was inconsistent and testified with a poor demeanour. There were several instances where he had become completely evasive and rambled tangentially.


54. Accordingly, I was not able to accept any part of it where it did not coincide with that of the respondent.

55. Consequently, I have not accepted his defence that the instruction to teach maths literacy was unlawful.


56. Rather I have accepted the respondent’s evidence that the applicant was qualified to teach the maths literacy classes.

57. Moreover, the applicant at one point in his evidence indicated that he had "taken a risk" and at another point that stated that he had embarked on a form of "go slow" because he was frustrated by the allocation of subjects which compromised his qualification as an educator. This was a materially different explanation to that put by his representative to the respondent’s witnesses.


58. I find that the respondent has established a clear, unequivocal and deliberate decision of the applicant not to follow the instruction given to him to teach all classes allocated to him. This is supported t by the applicant’s own reference to a go slow and taking of a risk.

59. I find that the respondent has proved on a balance of probabilities that the instruction was both lawful and reasonable.


60. The respondent has discharged the onus of proving breach of the rule.


SANCTION

61. The applicant when the issues were narrowed placed the appropriateness of the sanction in dispute.

62. Without deferring to the respondent’s disciplinary code, which the applicant did not challenge, a sanction of dismissal for this misconduct is provided for.

63. I have applied the approach which has become the norm regarding a consideration of sanction at arbitration laid down in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (CCT 85/06) [2007] ZACC 22; [2007] 12 BLLR 1097 (CC).
‘In approaching the dismissal dispute impartially, a commissioner will consider the totality of circumstances. He or she will necessarily consider the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must consider the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list.
To sum up. In terms of the LRA, a commissioner must determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision, a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.’

64. Regarding the sanction I have also considered that the applicant even on his own version was suspended for 3 months without pay for the same instance of refusing to teach maths literacy classes.

65. I have considered the applicant's record of progressive discipline, which form part of the applicant's own bundle dating as far back as 2009 without placing a great deal of weight on these because they had expired but nevertheless I find that there is a collective result which follows.


66. I have also considered the applicants frustrations which were expressed in agreement complaint letter addressed to the director of the district director on 10 March 2017.

67. However, the sanction is appropriate the applicant had placed his own needs of frustration regarding his career development before the needs and interests of the learners and literally abandoned 2 of the classes are to their own devices. I find that this is in contravention of the statutory duty imposed on any educator.


68. For all the above reasons, I find that the respondent has established that the sanction applied was fair, reasonable and appropriate.

CHARGE TWO

‘It is alleged that on 29 July 2016, while on duty as an educator at Dr a T Moreosele secondary school, you seriously assaulted Mr S Mogashane, the Labour relations officer, by spraying him with a spray in his face.

In view of the above you are thus charged in terms of section 17 (1) (D) of the employment of educators act 76 of 1998 as amended.’

DID A VALID RULE EXIST WHICH WAS REASONABLE AND KNOWN TO THE APPLICANT AND WAS IT CONSISTENTLY APPLIED?

69. The applicant who was represented did not place in dispute these elements.


BREACH OF THE RULE

70. The applicant has admitted the misconduct.

71. Moreover, the applicant did not raise any defence and I have accepted the respondents evidence that there was no provocation and therefor I find that the respondent has proved a breach of this rule.

SANCTION

72. I have considered the applicant’s version, which was not challenged, that he had apologised to the complainant at some point after criminal proceedings. I find that while on the face of it appears to indicate remorse. However, because of the timing of the apology I find that it is more likely that the apology took the form of regret designed to mitigate against the outcome of the criminal matter.

73. I have also considered that given the applicant’s age and professional status as an educator as well as the status of the complainant.

74. I have considered the pain and suffering, the lack of any reason for the appclaint to behave in response to a very professional approach by the complainant and the environment in which the assault took place.

75. For all of these reasons I find that even if the use of deodorant was unusual and on the face of it harmless, the assault was indeed a serious one.

76. I have considered the long tenure of the applicant and the level of frustration that he had experienced because of being required to teach maths literacy.

77. At first blush because of the applicant’s willingness to accept responsibility further progressive discipline has been considered. However, the collective result of all the charges seen together as well as the applicants record of misconduct including previous accounts involving written warnings and suspensions without pay find that the respondent has establish that the applicant is not likely to respond to progressive discipline.

78. Accordingly, I find that the respondent’s decision to dismiss the applicant for the breach of this rule is a reasonable operational response and not a choice that no reasonable decision maker would arrive at.

CHARGE THREE

‘It is alleged that on 29 July 2016, while on duty as an educator at Dr a 3 Moreosele secondary school, you threatened to spray the principal, Mr Mogotsi's with a spray.

In view of the above you are thus charged in terms of section 18 (1) (r) of the Employment of Educators Act 76 of 1998 as amended.”


DID A VALID RULE EXIST WHICH WAS REASONABLE AND KNOWN TO THE APPLICANT AND WAS IT CONSISTENTLY APPLIED?

79. The applicant who was represented did not place in dispute these elements.

WAS THE RULE BREACHED

80. Regarding the 3rd charge there is a material contradiction between the principal and the complainant of the first charge regarding whether the applicant held or reached for the deodorant can when he threatened the principal and there was no clear evidence from either the principal or the labour relations officer what the exact threat was.

81. Therefore, I am not convinced that there was in fact a further assault in the form of a threat towards the principal. I find that rather the circumstances created by the applicant's 1st attack may have led to somewhat of an exaggeration by the witnesses thereafter who may have perceived the applicants are intentions to be intimidating and threatening, although this does not impact of the honesty of witnesses overall.


82. Accordingly, I find that the respondent has not proved on a balance of probabilities the breach of this rule.


SANCTION

83. The applicant placed on the appropriateness and reasonableness of sanction in respect of this charge in dispute.

84. Because of my finding regarding the breach of this rule a consideration of sanction becomes academic.

PROCEDURAL FAIRNESS

85. The applicant is placed in dispute procedural fairness on 2 grounds namely that he had not been given an opportunity to present his case during the disciplinary hearing and because the applicant who was a shop steward and member of the Professional Educators Union, which trade union had not been consulted with prior to disciplinary action being taken against him.

86. The primary consideration for the presence of procedural unfairness is prejudice to the employee party.


87. The applicant was asked specifically in what respect he would be prejudiced as result of the failure of the respondent to consult with the trade union and his answer to this was candid frank and forthcoming that the trade union internal arrangements could have suffered thereunder because of his inability to have performed his functions as shop steward at the workplace.

88. This did not prejudice the applicant in any manner because he was not himself prejudiced in preparing for and presenting his case or finding suitable representation overall.

89. This brings me to a consideration of the applicant’s primary procedural unfairness claim. The respondent has not challenged the evidence of the applicant that a final postponement was indeed refused and therefore thereof the applicant never personally presented his evidence in that he did not testify at the internal hearing. It is common cause that this had occurred because of a postponement had been refused.

90. It was also not challenged that therefore the applicant’s appointed legal representative at that date was not able to assist the applicant.

91. I have considered the respondent’s witnesses evidence which is not that of an unreliable dishonest witness that he had considered all the circumstances presented to him during the disciplinary hearing which took place over several months. I have considered the way he reasoned when making the decision to refuse the final postponement and the factors that he considered. On face value his reasoning appears to be that of a reasonable decision maker.


92. However the respondent has not challenged the evidence of the applicant that on the date when the application was made for a postponement by the applicant at the final sitting of the internal hearing the original legal representative was no longer available because that legal firm had ceased to practice and therefor the new representative of the applicant had been unable to obtain copies of the internal enquiry transcript nor documentation from the previous legal representatives. This presented the circumstances which were outside the control of the applicant and although the applicant had enjoyed an indulgence from the respondent’s chairperson on several previous occasions I find that a final postponement would have been a fairer approach by the internal chairperson.

93. I have considered the nature of the charges and considered that the appclaint could have presented his defence in person. However, the respondent’s procedure makes provision for legal representation and the applicant had exercised an election to rely on his legal representative.


94. All things considered I find that the respondent has not on the balance of probabilities discharged the onus that the applicant was afforded a fair hearing.

95. I find that the dismissal was substantively fair but procedurally unfair.

REMEDY

96. The applicant has asked to be re-instated.

97. I have found that the applicant’s dismissal was substantively fair.

98. Moreover, the respondent has tendered evidence that the trust relationship with the applicant has broken down and I have accepted this evidence. Therefore, material circumstances are evident that the working relationship will be intolerable or impracticable as provided for by Section 193 (2) (a) of the Labour Relations Act 66 of 1995.

99. I find that what is just and equitable is to order that the respondent compensate the applicant.


100. I have considered the way the applicant’s services were terminated, the facts which gave rise to the termination, the degree of culpability of the applicant and the length of the applicant’s tenure amongst other factors.

101. The applicant was afforded a hearing which, but for the final postponement which was refused, substantially complies with tenets of fairness, and the applicant has been afforded an opportunity to present his defence at arbitration, which has not resulted therein that I could find that his dismissal was an unreasonable operational response.

102. Consequently, I find that appropriate compensation will fair and reasonable.

103. I have calculated this to be R10175,87 (Ten Thousand One Hundred and Seventy-Five Rand and Eighty-Seven Cents) as follows: (R22030,75 per month divided by 4,33 weeks per month x 2 weeks).

AWARD

104. The dismissal of the applicant was substantively fair but procedurally unfair.

105. Department of Education-Gauteng is ordered to pay to Samuel Sello Kekana R10175,87 (Ten Thousand One Hundred and Seventy-Five Rand and Eighty-Seven Cents) on or before 30 March 2018.


106. There is no costs order.


Trevor Wilkes
Panelist Commissioner