ELRC397-22/23NW

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case number: ELRC397-22/23NW

In the matter between

Semunza, A P Applicant

And

Education Departmenf of North West Respondent

Appearances: For the applicant: In person
For the respondent: Mr. Martin Keetile
Arbitrator: Thobela Ncetezo
Heard: 31 October, 28 November 2022, 24 January, 2 & 28 March 2023
Delivered: 20 April 2023
SUMMARY: Labour Relations Act 66 of 1995 – Section 191(1) [191(5(a)] - Dismissal related to misconduct

ARBITRATION AWARD

Details of hearing and representation
1. The dispute was set down for a virtual arbitration. The Applicant, Mrs. A Semunza, appeared in person. Mr. Martin Keetile who is employed as Labour Relations Practitioner represented the Respondent, Education Department of Northwest.

2. Both parties submitted bundles of documents that have been labeled Applicant’s Bundle and Respondent’s Bundle. The Applicant testified. The respondent introduced six witnesses. They all testified under oath and the proceedings which were digitally recorded were conducted in English.

3. The parties requested to submit closing arguments in writing for consideration, which were received on 5 April 2023.

Issue to be decided

4. I am required to decide whether the dismissal of the Applicant was procedurally and substantively fair.

Background to the dispute

5. The Applicant submitted that she was employed by the Respondent on 15 January 1995 as Post Level 1 teacher. At the time of her dismissal, she was a teacher at Connie Minchin Primary School which is under Ngaka Modiri Molema District. She earned R14 000.00 per month. She was dismissed on 13 January 2022 after being found guilty of the following charges:
• Charge 1: On the 07 June 2021 whilst on duty at Connie Minchin Primary School you slapped Baone Tshehle on the face, in so doing you committed an act of misconduct in terms of. Section 18(1) (dd) of the Employment of Educators Act 76 of 1998 as amended which reads “commits a common law or statutory offence.
• Charge 2: During 1st and 2nd term academic year 2021 you failed to sign the staff register whilst reporting for duty, in so doing you committed an act of misconduct in terms of. Section 18(1) (a) of the Employment of Educators Act 76 of 1998 as amended which reads “fails to comply with or contravenes this act or any statute, regulation or legal obligation relating to education and the employment relationship.
• Charge 3: During 3rd term of academic year of 2021, you failed to screen for Covid 19, in so doing you committed an act of misconduct in terms of. Section 18(1) (e) of the Employment of Educators Act 76 of 1998 as amended which reads “in the course of your duty endangers the life of himself or herself or others by disregarding set safety rules and regulations.
• Charge 4: During term 1 of academic year of 2021, you failed to submit files for monitoring Grade 6 Life Skills Subject, in so doing you committed an act of misconduct in terms of. Section 18(1) (a) of the Employment of Educators Act 76 of 1998 as amended which reads “fails to comply with or contravenes this act or any statute, regulation or legal obligation relating to education and the employment relationship.
• Charge 5: During term 2 of academic year of 2021, you failed to submit files for monitoring Grade 6 Life Skills Subject, in so doing you committed an act of misconduct in terms of. Section 18(1)(a) of the Employment of Educators Act 76 of 1998 as amended which reads “fails to comply with or contravenes this act or any statute, regulation or legal obligation relating to education and the employment relationship.
• Charge 6: During term 2 of academic year of 2021, you failed to submit files for monitoring Grade 4 Life Skills Subject, in so doing you committed an act of misconduct in terms of. Section 18(1) (a) of the Employment of Educators Act 76 of 1998 as amended which reads “fails to comply with or contravenes this act or any statute, regulation or legal obligation relating to education and the employment relationship.
• Charge 7: During term 1 of academic year of 2021, you failed to submit files for monitoring Grade 4 Life Skills Subject, in so doing you committed an act of misconduct in terms of. Section 18(1) (a) of the Employment of Educators Act 76 of 1998 as amended which reads “fails to comply with or contravenes this act or any statute, regulation or legal obligation relating to education and the employment relationship.
• Charge 8: On the 07 June 2021 whilst on duty at Connie Minchin Primary School you refused to come to the principal’s office for a meeting with Mr Kgosiemang S.S. and the Principal Mrs T. Ntoahae, in so doing you committed an act of misconduct in terms of. Section 18(1) (i) of the Employment of Educators Act 76 of 1998 as amended which reads “fails to carry out a lawful order or routine instruction without just or reasonable cause.

6. The Applicant also challenged procedural fairness and submitted that she did not receive a notice to attend the disciplinary enquiry and finding of the presiding officer but only receive a correspondence that she must submit mitigating statements. She appealed but the sanction of dismissal was upheld.
7. The Respondent submitted the dismissal of the Applicant was through a disciplinary hearing, which was fair, but she did not co-operate or comply with the disciplinary procedure, the charges of which she was aware of. The Respondent further submitted that the Applicant failed to defend herself and the presiding officer found her guilty.

8. Both parties submitted bundles of document relating to charges against the Applicant. The respondent introduced five witnesses. The Applicant testified in person and did not introduce any witnesses.

Survey of evidence and arguments
Respondent’s case

9. The first witness, Mr. Steven Kgosiema, testified that he has been employed as a Circuit Manager since 2018. He further testified that the principal of the school reported to him that the Applicant did not report for work, sign the attendance register or cover all the syllabus of the subject that was allocated to her, a conduct which the witness said was not acceptable. He was also told that the Applicant would stay in her car (not staffroom) and leave without asking for permission from the principal, even though the rules state that a teacher must be in the staffroom when they are not in class.

10. On 3 August 2021 he visited the school to address this issue but when the Applicant was called to the principal’s office; she did not come. The witness asked the principal to approach the Applicant who was sitting in her car. When they approached her, the Applicant told them that she was busy and went to class.

11. It was also reported to Labour Relations Unit that the Applicant subjected learners to corporeal punishment and had failed to submit a subject file. When the witness visited the school, he checked the timetable and saw that the Applicant who was sitting in her car, was supposed to be in class.

12. He further testified that an educator is required to report her whereabouts to the principal whenever he/she is not going to report for work. The principal who has a responsibility to control and monitor attendance by educators, keeps the timebook in his/her office.

13. The witness instructed the principal to initiate a disciplinary enquiry against the Applicant as she had refused to take reasonable instructions from him and the principal. Even after his visit the Applicant continued to absence herself from class and not teach learners.

14. The second witness, Mr. Brian Moketedi, testified that he has been a deputy principal since 2018 and has been at Connie Minchin Primary School since 2019. On his arrival at the school, he was told that the Applicant was on sick leave for four months. The witness then taught the Applicant’s subjects. When the Applicant was at school, she would sit in her car most of the time and not teach learners even though she was best in the subject that she taught. She used to report for work at 09h00 or 10h00. She would also refuse to go to class when he told her to. Learners also reported that the Applicant did not go to class even when she was within the school premises. The tool that he used to monitor the attendance of teachers was a timetable which he took to class to check attendance by teachers and most of the time the Applicant was absent from school. When she reported for work, she would sit in her car and mostly not perform her duties.

15. He further testified that during the COVID-19 period, employees and learners were required to be screened and sanitised. In a staff meeting that the Applicant did not attend, the witness volunteered to screen teachers. Other teachers were screening learners. The screening and temperatures of staff taken were recorded. The Applicant was aware of this requirement, but she never followed it. She also told the witness that she would not go to his office for screening. She refused to be neither screened nor sanitised even when he instructed her to. The Applicant’s refusal to be screened and sanitised was endangering the lives of teachers and learners as one would not know their COVID-19 status.

16. The third witness, Tsholofelo Brilliant Sekhula, testified that she is a Departmental Head for Grades 4 and 5; and has been since 2018. She further testified that the Applicant who was teaching the intermediate phase, failed to submit to her the file for monitoring term one of 2021. She sat down with her, planned, and assisted her with the file which was then submitted during term two. This means that she did not meet the deadline for submission of subject files, which was 1 March- 2021 because she was not at school and was replaced by a relief teacher. She further testified that teachers are informed of when the files should be submitted. She explained that subject files assist to monitor whether learners are being taught and given activities.

17. The fourth witness, Tebogo Ntoahae, testified that she has been a principal for five years. She further testified that she asked the Circuit Manager to assist her as the Applicant was regularly absent from work. The Circuit Manager then visited the school. On his arrival he requested the Deputy Principal to call the Applicant, but the latter refused. The witness asked the Deputy Principal to accompany her so that they can talk to the Applicant who was at the time sitting in her car. The latter refused to talk to them, she got out of the car and went to class. The Circuit Manager also called her, but she still refused and said that she was in class. She did not go to the principal’s office on that day.

18. She further testified that the Applicant never signed the attendance register because she was always late for work, which starts at 07h30. She denied that the Applicant had submitted a medical certificate and stated that is she had submitted a medical certificate, such information would have been entered in the attendance register next to her name but because her whereabouts were not known, nothing could be written next to her name. In terms of the rules a teacher who is not at work must communicate with her. She further testified that the Applicant would sometime claim that she was not well but not submit a medical certificate. The only time the Applicant contacted her when she was not at school was when she was involved in an accident.

19. Regarding the other teacher that the Applicant said did not report for duty for several months, the witness testified that the said teacher was on maternity leave.

20. The witness also noticed that the Applicant’s name was not in the screening documents which the school used to record teachers who were screened on entering the school premises. Other teachers would not be in the screening document because they were on leave.

21. She further testified that a Grade 6 Departmental Head reported to her that the Applicant did not submit the subject file as required.

22. The fifth witness, Bertha Letsile Kgosiemang, testified that she is a Departmental Head and HoD to the Applicant. She further testified that during term one the Applicant did not submit her action plan and subject file and therefore there was no evidence of the work that was done. This resulted to the witness not able to compile a report but to state on the report that the Applicant did not submit the fille. There was also no evidence that the learners had been assessed. The school would request for a relief teacher so that learners can be taught and assessed when the Applicant was absent from work. When she enquired the reason for not submitting the subject file, the Applicant told her not to interfere as she was protecting the witness from things that she did not know, which are dealt with at a higher level.

Applicant’s case

23. The Applicant, Arabang Patricia Semunza, testified that she has always submitted her files as required and that her former Departmental Head confirmed this in her testimony. She further testified that it would not have been possible for her to teach without her subject file as they were bound to always have these files. She stated that at the time that files were to be submitted, she was on leave, but the subject file was with the substitute teacher.

24. She denied that she was ever called to the office for failing to attend to her classes. She also denied that she refused to be screen for COVID-19. She further denied that she missed any classes and testified that she would move form one class to the other. Even though there was no entry or signature next to her name, she still maintained that she did not refuse to sign or screen for COVID-19. She testified that she was at home because she had COVID-19 and therefore her temperatures could not be recorded.

25. She further testified that she was sick from April to July 2021 and had submitted a medical certificate to the principal. She then realised that the latter was not keeping records, so she sent her brother to submit it on her behalf but did not have proof of such submission. She stated though that the dates of her absence were not clear because they were not stated in her charges. She further testified that the fact that another teacher substituted her was sufficient to proof that the principal was aware that she was not well.

26. The Applicant denied that she ever slapped a learner and testified that she was never even informed of the of the incident. She was told that the incident took place during lunchbreak, and she had no interaction with learners at that time. She was not given an opportunity to sit with the learner, his mother or principal for an explanation. The principal told her that the issue was dealt with by the Respondent’s Labour Relations Unit even though all events at the school are reported to her.

27. On the procedural aspect the Applicant testified that she could not attend the disciplinary enquiry because she did not receive a notice to attend it. She also did not receive the finding of the presiding officer but was only served with the request for mitigation statement on 13 October, which she submitted on 15 October. After receiving a dismissal letter, she appealed.

Analysis of evidence and arguments

28. Section 138(1) of the Act provides that the commissioner may conduct the arbitration in a manner that the commissioner considers appropriate to determine the dispute fairly and quickly but must deal with the substantial merits of the dispute with the minimum of legal formalities. Section 138(7)(a) further provides that the commissioner must issue an arbitration award with brief reasons, signed by that commissioner.

29. Section 192 of the Labour Relations Act 66 of 1995, as amended, provides that in disputes of unfair dismissals an employee must establish the existence of a dismissal. Once dismissal has been established an employer has an onus to prove that the dismissal was substantively and procedurally fair. There was no dispute, in this matter, that the Applicant was dismissed and therefore an onus rested with the Respondent to prove the fairness of the latter’s dismissal.

30. Section 10(1) of the South African Schools Act 84 of 1996, as amended, prohibits the corporal punishment at a school to a Ieamer and section 10(2) provides that any person who contravenes subsection (l) is guilty of an offence and liable on conviction to a sentence which could be imposed for assault. The fact that the Applicant denied that she slapped a learner placed an extra burden on the Respondent prove that its version was more probable. The Applicant stated that she was never informed of this incident but with the same breath she stated that she was told that it took place during lunch break and was not allowed to talk to the learner and parent. This contradicting testimony, in my view, proves that it is more probable than not that she was informed of the allegation and was aware of this offence. In De Beer v Trudon (Pty) Ltd (1994) 15 ILJ 1057 (LAC) the Court with approval referred to the matter of FAWU and others v Amalgamated Beverage Industries Ltd (1994) 15 ILJ 1057 (LAC) when it held that an evidential foundation had to be laid and that a party could not merely rely on arguments only, as arguments without any evidential basis would be no more than speculation. On this charge I am of the view that the respondent discharged its onus that the applicant breached a rule.

31. With regards to charges 2 – 3, the Respondent submitted attendance registers to prove that the Applicant was not at work and had refused to be screened for COVID-19. The explanation of the Applicant for not signing the attendance registers and why she refused to be screened was not convincing in that if she did not refuse to sign the attendance register or to be screened, a signature would have been appended next to her name, as other teachers did. The evidence of the Respondent’s witnesses was supported by the attendance registers, which proved that the Applicant did not sign. She could not provide any evidence to rebut the Respondent’s evidence that she did not refuse to sign the attendance registers and could not advance a satisfactory explanation why she did not sign the said attendance registers. The refusal of the Applicant to be screened and sanitised was, in my view, misconduct in that she failed to follow a reasonable instruction, which was intended to protect her, the learners and her colleagues. She testified that she was sick from April to July 2021 and had submitted a medical certificate but according to the testimony of the Respondent’s witness, the school did not receive any medical certificate from the Applicant. The Applicant did not submit any medical certificate during these arbitration proceedings either to rebut the version of the Respondent, which was supported by documentary evidence. In Klaas and another v Eskom Holdings Ltd and others (JR 251/2011) [2016] ZALCJHB 152 the Court stated that appropriate or considerable weight should always be placed on uncontested evidence.

32. The Applicant was further charged of failing to submit subject files of the grades (Grades 4 & 6) that she was teaching, and this was proved by the Respondent through its witnesses and documentary evidence. The Applicant denied these allegations. I find it peculiar and contradictory that she denied these charges, yet she did not sign the attendance registers to prove that she had reported for work and had performed her duties, which are the tools that the Respondent administers to monitor the attendance of teachers. The Respondent further proved that the Applicant’s subject files were not submitted instead a monitoring tool wherein her HoD commented that the latter’s subject files was submitted.

33. The Applicant was further charged of failing to carry out a lawful order or routine instruction without just or reasonable cause in that she refused to report to the principal’s office when a circuit manager visited the school to address the issue of her conduct. The Applicant denied this allegation. Three witnesses of the Respondent testified on this charge, and they were consistent in their testimonies that the Applicant refused to go to the office and when they went out of the office to talk to her, she left. It is evident that the applicant showed disrespect to her seniors (including a senior official) who visited the school to address her conduct that was affecting teaching and learning of the grades she was entrusted with by the Respondent. The demeaner of the Applicant gave an impression of lack of remorse and understanding of the consequences of her actions.
34. The Applicant also challenged procedural fairness and stated that she did not receive the notice of disciplinary enquiry and findings but communication that she must submit mitigating factors. The Respondent submitted that the Applicant was properly notified of the disciplinary enquiry, but she refused to sign. She appealed against the decision of the presiding officer of the disciplinary enquiry and the dismissal was upheld.

35. The evidence that has been presented by the Respondent, that the Applicant refused to sign the attendance and screening registers, in my view, further proves that it is more probable than not that the Applicant was served with the notice to attend a disciplinary enquiry but refused to sign it. It was written in the notice of the disciplinary enquiry that the Applicant refused to sign it.

36. In Country Fair Foods (Pty) Ltd v CCMA & Others (1999) 11 BLLR 1117 (LAC) the Court held that interference with a sanction is justified if the employer’s decision is unreasonable and unfair.

37. In Sidumo and another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC); [2007] BLLR 1097 (CC) it was held that in terms of the LRA a commissioner has to 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 deter to the decision of the employer. What is required is that he or she must consider all relevant factors and circumstances.

38. Based on the above I am of the view that the respondent has discharged its onus to prove on a balance of probabilities that the dismissal of the Applicant is procedurally and substantively fair.

39. I accordingly make the following award;


Award

40. The application is hereby dismissed.

41. There is no relief awarded to the Applicant.

Signature:

Commissioner: Thobela Ncetezo
Sector: Education