ELRC606-22/23GP

Case Number: ELRC606-22/23GP
Commissioner: Ntjatja Klaas Aphane
Date of Award: 22 May 2023

In the ARBITRATION between:

MOGALE ASSER MASENYA
(The Applicant)

And

DEPARTMENT OF EDUCATION: GAUTENG PROVINCIAL GOVERNMENT
(The Respondent)

Applicant’s representative: Mahlogonolo Masenya (Legal Representative of the Applicant, Mogale Asser Masenya) from Makgopa Attorneys

Respondent’s representative: Emily Magadla (Deputy Chief Education Specialist: Labour Relations) Department of Education: Gauteng.

DETAILS OF THE HEARING AND REPRESENTATION:
1. This is the arbitration award in the arbitration proceedings concerning an alleged unfair dismissal related to misconduct dispute between Mogale Asser Masenya, the Applicant, and Gauteng Provincial Government: Department of Basic Education, the Respondent.

2. The dispute was referred to the ELRC in terms of section 191(5) (a) of the Labour Relations Act 66 of 1995 (the LRA).

3. The arbitration was scheduled and held on 19 January virtually, 09, 10 March and 05 and 26 April 2023, all parties and witnesses physically attended at district offices of the Department of Education at Johannesburg, and it was held under the auspices of the ELRC in terms of section 191(5) (a) of the LRA.

4. On 19 January 2023, the Applicant was represented by Njabulo Mtolo, trade union official of National Teacher Union, who was standing for Sinenkosi Justice Mpandla, who was experiencing family challenges and could not attend and represent the Applicant, based on those challenges, Njabulo Mtolo requested postponement.

5. The postponement ruling was issued on 27 January 2023, granting the postponement of the dispute.

6. On 09 March 2023, the Applicant was represented by his legal representative, Mahlogonolo Masenya, who submitted the legal representation application on behalf of the Applicant, the Respondent’s representative, Emily Magadla opposed the legal representation application.

7. The legal representation ruling was issued orally granting the Applicant the legal representation and reasons to be advanced on this arbitration award.

8. The award is issued in terms of section 138(7) of the LRA.

9. The Applicant was present and was legally represented by his legal representative, Mahlogonolo Masenya whilst the Respondent was present and represented by its deputy chief educational specialist: Labour Relations.

10. The Applicant was legally represented and therefore I adopted an adversarial approach to resolve the dispute.

11. The arbitration proceedings were digitally recorded and handwritten notes were taken.

12. Mpotseng Moloi and Mojalefa Lefosa provided translation services to some witnesses.

13. The prayer sought by the Applicant is retrospective reinstatement.

THE ISSUES TO BE DECIDED:

14. I must determine whether the Applicant must be legally represented or whether legal representation should be allowed or not.

15. I must also determine whether the dismissal of the Applicant was substantively and procedurally fair or not. If not fair, I must determine the appropriate relief.

THE BACKGROUND TO THE DISPUTE:

16. The Applicant started employment relationship with the Respondent on 01 June 1994, as an educator, and through career progression occupies other positions, Facilitator for natural science and was promoted to school principal on 01 July 2007.

17. The Applicants employment relationship was terminated by the Respondent on 19 July 2022, consequent to an internal disciplinary hearing.

18. The Applicant exhausted all internal avenues to resolve the dispute, the outcome of the appeal process was communicated to the Applicant on 24 October 2022, confirming the dismissal.

19. The Applicant was earning a monthly salary of R66 131,00, at termination of employment.

20. The Applicant, through his legal representative, submitted an application for legal representation on 09 March 2023, which was granted.

21. The Applicant referred the alleged unfair dismissal related to misconduct dispute to the ELRC on 24 October 2022.The dispute was conciliated and the parties failed to resolve the dispute at conciliation. The conciliation outcome certificate was issued stating that the dispute remained unresolved.
22. The Applicant referred the dispute for arbitration and requested that the dispute be resolved through arbitration. The dispute was scheduled for arbitration on 19 January 2023.The Applicant’s trade union official, National Teachers Union, Njabulo Mtolo requested postponement of the dispute and it was granted.

23. The Applicant’s legal representative and the Respondent’s representative agreed to submit closing arguments on or before 03 May 2023.

24. The Applicant’s dismissal was not in dispute, both the Applicant’s legal representative and the Respondent’s representative conceded that the Applicant was dismissed.

25. The Respondent’s representative called three (3) witnesses (Madikoadi Andonate Dikgale,Masenyani George Mathe.Maureen Selaelo Kgoale) whilst the Applicant’s legal representative called eight witnesses and the Applicant (Emmanuel Onnalenna Mooketsi,Julius Maake,Rosina Rian Makwashe, Andries Setshekgamollo,Noluthando Nosipho Nkambule,Tshegofatso Princess Mochwaedi,Christoffer Kwinda,Mogale Asser Masenya and Selebatso Kgori) to testify in support of the Applicant’s case.

26. The Respondent’s representative submitted a bundle of documents “R”, consisting of pages 1 to 8 and audio recording, whilst the Applicant’s legal representative submitted bundle “A”, consisting of pages 1 to 8.

27. The substantive fairness was in dispute.

28. The Applicant was legally represented, so I adopted an adversarial approach to the arbitration in order to determine the merits of the dispute fairly.

SURVEY OF THE EVIDENCE:

29. I wish to state from the onset, that not all evidence presented will be set out hereunder. Only a summary of the relevant evidence is contained herein.

THE RESPONDENT’S CASE:

30. The first witness for the Respondent was Madikoadi Andonate Dikgale, who testified under oath, that she was an employee of the Respondent, employed as an educator, started at the school on 02 April 2019, as a temporary teacher, but now permanent on probation .She is teaching maths. She was absorbed during November / December 2022 into permanent role.

31. She was interviewed by the deputy principal, Mathe, and head of the Department, Molapo, she was later introduced to the Applicant.

32. She was astonished when the Applicant started pestering her with lot of questions that got nothing to do with her work but were more personal like, where do you stay and you must show me where you stay, started receiving calls at night at awkward hours , to be precise after 23H00.

33. After calling her after 23H00, the Applicant called her into her office and told her that he did call her last night and why did she pick up her call, ask her, where do you stay and not explain the reasons of the previous night call, that makes her uncomfortable.

34. The Applicant touched her from the back, on her waist, he asked her, you do you stay and asked her to show him where she stay. She was fuming and left the office without answering the Applicant. She felt physically and emotionally abused. She moved away from the Applicant to ensure there was sufficient space between them. She was scared and did not react.

35. The following day, she reported the incidence of touching her waist against her will to the head of department, her immediate line manager, Ms. Molapo, who responded that the Applicant is like that and the witness was not the only one as other teachers are experiencing the same challenges, including herself. The HOD told her that the Applicant once pull her bra lace. Ms. Molapo advised Dikgale that Ms. Marothi took the Applicant to court for similar misbehaviors.

36. The HOD advised her not to report the incidence of the Applicant, because she is still a temporary employee and the Applicant is a very dangerous person, hold grudges and could frustrate her teaching career and jeopardize her permanent employment.

37. Upon joining the school as a teacher, she was not socialize and orientated on the do and don’ts at school, one day was wearing a cap and that infuriated the Applicant who grabbed her by her biceps to his office, and Mr Morobi (the IDSO), was in the Applicant’s office and reprimanded the Applicant for been harsh on the teacher without socializing her on dress code or wearing a cap.The Applicant returned her cap to her.

38. During August / September, the school was dysfunction, there was disengagement between the teachers and the school management, teachers boycotted management meeting, and she did not attend one meeting scheduled because of the disengagement process. He went looking for her and other teachers and shouted at her and took her handbag.Mr Moeketsi was standing not far from her and not attending the meeting as well.

39. Despite experiencing all this challenges and abuse, she could not leave the school because of the high unemployment rate, she was desperate for work hence she endured all this abuse.

40. One day there was workshop at school about sexual harassment and reported the Applicant to the facilitator, who advised her to write an email to her, she complies and the matter was reported to the Labour Relations unit.

41. She then joined SADTU, and reported the incidences of abuses of the Applicant to SADTU executives.

42. One day the Director: Transformation visited the school and she reported the sexual harassment

43. One incident, the Applicant grabbed her by her biceps in front of learners.

44. The Applicant was charged with the following counts of misconduct:-

a. It is alleged that during November 2020 while on duty at Itirele-Zenzele Comprehensive School you, committed an act of dishonesty by giving false statement when asked where the learners listed below where after you locked them in the school laboratory resulting in them not writing their Technical Mathematics paper 2 examination. (The learners were as follows):-
(1) ZT Funani
(2) MH Moagi
(3) TM Mokoena
(4) G Motlowane
(5) N Segwale
(6) S Tusi
(7) RR Makwashe
(8) T Mochwaedi
(9) K Moitsi
(10) PS Ngobeni
(11) NW Nkambule
In view of your actions, you are thus charged with misconduct in terms of Section 18(1) (ee) of the Employment of Educators Act 76 of 1998 as amended.

b. It is alleged that on or about 16 November 2020 while on duty at Itirele-Zenzele Comprehensive School you committed an act of misconduct in that you incited Mr Mathe to an unlawful conduct by instructing him to give false statement on the absentee form about the learners that you locked up in the laboratory.
In view of your actions, your thus charged with misconduct in terms of section 18(1) (s) of the Employment of Educators Act 76 of 1998 as amended.

c. It is alleged that during 2019 while on duty at Itirele-Zenzele Comprehensive School you conducted yourself in an improper ,disgraceful and unacceptable manner in that you sexual harassed Ms Dikgale by touching waist without her permission.
In view of your actions, you are thus charged with misconduct in terms of section 18(1) (q) of the Employment of Educators Act 76 of 1998 as amended.

45. The second witness for the Respondent was Masenyani George Mathe, who testify under oath that he is an employee of the Respondent, employed as a deputy school principal and deputy chief invigilator.

46. He was at the examination centre and the Applicant came, they discuss the learners that did not attend revision classes over the weekend. Most learners were still at the gate to sign the attendance register.

47. Learners that were not present are marked absent or A which stand for absent.

48. Page R5 is the attendance register for technical mathematics paper 2, and there were 6A, and page R6 is the attendance register for mathematics paper 2 and there were six A, meaning 6 absence

49. He completed and compile page R7 and R8 which is the absentee form, dated 16 November 2020 and approached the Applicant and asked him, what should I write on this form and the Applicant advised him to write unknown. The learners were coming from C block

50. The learners were at school that did not turn up for mathematics paper 2 and technical mathematics 2.The learners were taken out of the examination centre before they could write their respective examination on 16 November 2020.They were removed from the examination centre by the Applicant
51. He was not aware where learners were taken to until the following day, 17 November 2020.

52. On 17 November 2020, the IDSO, Ledwaba and Examination monitor Selaelo visited the school in the morning, he was present in the meeting and the Applicant was present and it was in that meeting that it was confirmed by the Applicant that the learners were present at the school premises. The Applicant confirmed that he took the learners to the laboratory / computer room and kept them there during the examination duration.

53. The reasons that was advanced by the Applicant was that the learners did not attend revision classes, and their performance during the prelims examination, they did not perform well and therefore will cause drop to the school results.

54. The invigilators at the examination centre informed him that the Applicant removed learners from the examination room

55. The Applicant misled him about the learners whereabouts and the principal was not sick

56. The witness denied knowing about page A3 and described it as fabricated and tempered with because the date was incorrect.

57. The third witness for the Respondent was Maureen Selaelo Kgoale who testified under oath that she is an employee of the Respondent, employed as a deputy chief education specialist, who sole responsibilities of amongst others to monitor examination and was assigned at Itirele-Zenzele.

58. On 16 November 2020, she was at the school and observe some open spaces at some desk in the examination room but was comforted by the fact that some students were still registering at the gate. He met the Applicant and spoke briefly on general matters.

59. Learners that wrote paper 1 should be allowed to write paper 2, the chief invigilator role is the principal role but at the school, the chief invigilator role was delegated to the deputy principal, Mathe, even though the ultimate accountabilities rests with the principal.

60. She got a call at 20H00, in the evening from the mathematic subject advisor telling her that some teachers at the school called to report that learners were removed from the examination room and prevented from writing examination, mathematics 2 and technical mathematics 2.

61. She immediately escalated and reported the examination anomalies to her superiors. They were instructed to visit the school the following day to diagnose the challenges and get correct information.

62. She and Morobi Ledwaba reported at school on 17 November 2022, four learners parents were at school to complain as well as demand answers why their kids were denied right to write exam, the chairperson of the SGB was present as well, the Applicant and the deputy principal were present.

63. The Applicant provided two reasons for not allowing learners to write their grade 12, mathematic 2 and technical mathematics 2 final examinations and the reasons were poor performance in the preparatory examinations (prelims) and non-attendance of revision classes.

64. The decision to prevent and denied the learners rights to write their final examination was the Applicants unilateral decisions, he kept the learners at the laboratory of the school.

65. In the past, there was multiple examination opportunity (MEO), for learners that were weak academically, who would be given opportunity to complete their studies over a period of time. Learners, Parents and principal should agree and was not a unilateral decision. This MEO policy was done away some time ago before 2020.

66. Grade 12 is an external examination

67. On question of clarity, she remained firm that failing prelims does not automatically translate that the learners will fail or do poorly on final examination.

68. The school target and pass rate should not undermine learners rights to write examination and be evaluated on their examination.

THE APPLICANT’S CASE:

69. The first witness to testify for the Applicant was Noluthando Nosipho Nkambule, who testify under oath that she was a learner at Itirele-Zenzele Comprehensive during 2020, she was doing grade 12.

70. She was no allowed to write grade 12 final exam.

71. On Saturday, they were attending mathematics revision classes, she went outside to fetch her breakfast, and she met the deputy principal who instructed her to go home.

72. The deputy principal, Mathe, told her that if she does not attend Saturday revision classes, she would not be allowed to write final examination.

73. The Applicant was not at school that Saturday when learners were attending revision classes.

74. On examination date, the Applicant was with learners going to the Laboratory and they met the deputy principal, Mathe, who said to her, “I told you that you would not be allowed to write final exam”, the deputy principal also asked the Applicant, “are you taking the learners to the laboratory”?, and the Applicant responded , “yes”.

75. The deputy principal utterances on Saturday correspondence exactly with what was happening on examination date, that they would not be allowed to write examination.

76. They were taken to the laboratory by the Applicant, and they were kept there until all learners wrote their final examination and released after examination to go home.

77. Whilst they were seated in the laboratory, Panyaza came and requested the Applicant, and told him that the deputy principal, Mathe, was calling him.

78. Learners were taken from different classes, other learners followed them to the laboratory.

79. The deputy principal marked her absent as if she did not attend the revision classes on Saturday, the attendance register was marked absent even though she was present at school.

80. She arrived at school an hour before final examination, that Monday of the examination. When they were fetched from the examination room, the deputy principal was not physically present, and the Applicant was in the company of Moeketsi.

81. She passed her grade 12 in 2020.

82. During cross examination, she said the deputy principal chased her out of class and school premises and instructed her to go home and indicated to her that, if you don’t attend revision classes you would not be allowed to your final examination.

83. Equally during cross examination conceded that she might had been the only one that saw the deputy school principal.

84. The second witness to testify for the Applicant was Tshegofatso Princess Mochwaedi, who testified under oath that she was not allowed to write mathematics paper 2 .She was called whilst seated in the examination room by the Applicant and instructed to go outside of the class, they were taken to the laboratory, she think the deputy principal was aware that they were not allowed to write their final examination.

85. Other learners joined them at the laboratory.

86. The applicant gave them a piece of paper to write why they did not attend revision classes on Saturday, just before examination.

87. During cross examination the witness conceded that she testify for the Department and provided statement and her testimony differs with her current evidence and she conceded , her evidence is different cause she was not given a chance to talk about the deputy principal.

88. It was bad that she missed the examination after instructed to go to the laboratory by the Applicant, even though she did not attended Saturday revision classes.

89. The third witness for the Applicant was Christopher Kwinda, who testified that he is an employee of the Responded based at Itirele-Zenzele comprehensive school, employed as a general assistant.

90. He never heard that the Applicant sexual harassed any person.

91. One day, there was a meeting at school, and some teachers inclusive of teacher Dikgale did not attend the meeting, she was leaving the school premises or was not in attendance at that scheduled meeting, and the Applicant followed her and she placed her handbag down on the floor.

92. The Applicant saw the bag lying down and fetch the bag, asked who does the bag belong to, she followed the Applicant to get her handbag back.

93. The handbag was between the two cars, first and second cars, whilst the teacher Dikgale was on the last car hiding from the Applicant.

94. The fourth witness for the Applicant was Emmanuel Onnalenna Moeketsi who testify under oath that he was the teacher for technical subjects at the school, with fifteen years of services.

95. He enjoyed a good, humane work relationship with all of his colleagues at school.

96. He was asked by teacher Dikgale to be her witness that the Applicant took her handbag from her and he refused because he did not want to testify about something that he did not see and or observe with certainty.

97. Teacher Dikgale was found next to his car by the Applicant, he was in his car but did not see the bag incident.

98. He was a site secretary of SADTU and heard the issue of sexual harassment even though it was never reported to the union, SADTU formally.

99. Teacher Dikgale requested him to write statement and provide his version about the incident of the day of the staff meeting but he refused because he did not want to be witness because he did not see or observe the Applicant taking the bag.

100. The fifth witness for the Applicant was Julius Maake who testified under oath that he was the chairperson of the SGB.

101. One day, whilst seated with the Applicant in his office, another teacher, Mxengo, also SADTU union member, entered the principal office and said, “Thanks God I found both of you here together, I suggest you absorb teacher Dikgale into permanent post in order for her to drop the sexual harassment charges against the principal”.

102. He asked the principal if he sexual harassed teacher Dikgale and his response was, no, he did not sexually harassed teacher Dikgale.

103. Then he told the principal that there was no need to absorb the teacher Dikgale, because teachers should be absorb based on good results and meritorious services.

104. Teacher Mxengo reported that the union, SADTU, had a meeting with teacher Dikgale with regards to her complain of sexual harassment but was not privy what the discussion was all about.

105. The Sixth witness for the Applicant was Andries Setshekgamollo who testify under oath that he was working with the Applicant for nineteen years.

106. He went with the deputy principal to give learner examination papers. Some learners were taken out of the examination room and the deputy principal said that they did not attend Saturday revision classes hence they should be taken out of the examination room. The deputy principal was standing with the Applicant telling that that some learners did not attend Saturday revision classes.

107. The deputy principal removed the learner from the class and was standing with the Applicant, the learner then headed straight to the laboratory with the Applicant.


108. Later, the deputy principal requested him to plead with the Applicant to intervene because there were some community members playing music loud outside the school premises but disturbing learners writing examination.

109. He accompanied the Applicant outside the school premises to plead with noise makers to tone it down because learners were writing examination and the noise makers complies.

110. The door was not locked at the laboratory, he is not sure whether the deputy principal was aware that the learners were at laboratory or not.

111. The deputy principal was very impatient person whilst the Applicant is very kind and does not interferes too much.

112. The deputy principal would sent him to lot of errands around the school premises, amongst other to drop circular from class to class, to deliver circulars to class despite the fact that he is a general worker and circulars must be delivered by the secretaries.

113. During cross examination, he conceded that because he was cleaning, he could not hear the conversation of the learners with the deputy principal.

114. He saw the deputy principal with the Applicant and learners but he was far from them.

115. The seventh witness for the Applicant was Rosina Rian Makwashe who testify under oath and stated that her story is different from others, it is one sided and was of the view that no one wanted to hear her version.

116. She arrived early at school and signed the attendance register. The deputy principal was standing at the gate of the school to ensure they observe covid19 protocols, taking temperatures.

117. The deputy principal called her aside and told her that she would not write her final examination because she did not attend Saturday and Sunday revision classes

118. She told him that she was eating at the school kitchen but the deputy principal told him that she took long to eat and chased them away from the school premises.

119. He told her to join other learners with the Applicant at the laboratory and they stay at the laboratory until they were released after examination.

120. She told Neo that the deputy principal instructed her to join other learners at the laboratory and she was not removed from the class by the Applicant.

121. She was told that she will be testifying for the Respondent but was under the impression that she will be testifying fir the Applicant.

122. The learners were seated at the laboratory with the Applicant.

123. The Applicant was called by Panyaza and they went outside, the burglar door was closed but the door was open.

124. The Applicant gave them a piece of paper to write why they failed to attend revision classes and they complies and wrote their respective reasons for not attending weekend revision classes.

125. They were released by the Applicant after other learners wrote their final year examination for that morning session. It was three hours paper.

126. She spoke to Mathe, deputy principal, at the entrance gate.

127. They saw Mathe when they were leaving the school premises to go home

128. It was the Applicant and Moeketsi that released them from the laboratory

129. The eight wit ness for the Applicant was Selabatso Kgori and testify under oath that she was grade 12 learner during 2020 at the school.

130. She was supposed to write final examination technical mathematics on 16 November 2022, she arrived at the school, went to her examination class, signed attendance register and started writing examination when Mathe arrived and asked Neo Segwale to get out of the examination room.

131. He told Dineo Segwale to get out of the examination class and join her friends at the laboratory who did not attend the weekend revision classes.


132. The ninth witness was the Applicant himself, Mogale Asser Masenya, who testified under oath that , he was employed as a school principal with twenty eight years of services as a teacher and facilitator.

133. He was a grade 11 mathematics teacher in 2010, and his school produced good results, to be precise in 2011, he produced a student with 100% mathematic pass, who is a now a lecture at Wits University.

134. He was not well on the weekend before Monday, final year examination, so did not attend revision classes that weekend but was available on Monday.

135. That Monday, Mathe, reported to him that he was upset with learners that failed to attend weekend revision classes and gave him the list of learners that failed to attend weekend revision classes.

136. He took the list given to him by the deputy principal, with names of learners that must account for their actions, of missing the revision classes specifically intended to help them with coming the learners must be dealt with

137. He bumped into the exam monitor, Maureen Selaelo Kgoale, they saw each other but did not discuss much, they spoke about general stuff, he went to the examination Centre to assist .That was in the morning and before fetching learners to be reprimanded.

138. Mathe told him not to forget about the list of learners provided to him, learners that did not attend revision classes.

139. He went to his office to fetch the list of learners that did not attend revision classes that past weekend, he told the invigilators that he needed to see those learners to account, he took learners out of the classes in the examination Centre to the laboratory, on their way to the laboratory, they met Mathe who said he is happy that learners will account for missing weekend revision classes.

140. Requested learners to account by writing why they did not attend revision classes and they must commit that they will never miss revision classes again, in writing.

141. Whilst learners were writing such letters, the general assistant called him to plead with the car driver that was playing music loud outside the school premises, disturbing learners writing final examination.

142. He talked to the driver, who then left the premises and on his way back, rushed to his office because he was not feeling well and slept.

143. He was awoken by one of the general worker, Christopher Kwinda and it was past 12:00pm or to 13:00pm when he woke up. Everybody at school knows that he is taking chronic medication and tend to suffer subconsiousness or was unconscious.

144. The administration and management of the examination question papers, answer scripts, register by learners, examination numbers of learners, absentee forms are all sole responsibilities of the chief invigilator, Mathe, assisted by the invigilators. He delegated such authority to the deputy principal from 2024 to 2022 and is available to provide support if requested and needed.

145. He was never dishonest with regards to any examination incidences.

146. The following day, he reported the matter to the SGB chairperson but before they could put plan of action on how to deal with that issue, the district office management visited the school about the incident of the day before, taking learners to the laboratory and failing to write examination papers. He needed to report the matter to the parents and after notify the department.

147. The sole purposes of taking the learners to the laboratory was to account by writing the reasons on why they failed to attend revision classes and to commit themselves in writing that they will never commit the same mistake again. They were writing to the school SGB, school management team (SMT).

148. One of the invigilator, refused to sign the register because the learners were taken out of the examination centre, therefore, Mathe, as a deputy principal, schooled on invigilation course, with delegated authority should know better and cannot be requested or instructed to write wrong information on the absentee form. He is not telling the truth and therefore did not incite him to do.

149. He saw Mathe at the parking lot and never spoke about the absentee form, He did not incite Mathe to give false information on the absentee form and never spoke to him after the examination morning sessions. He was trained with Mathe as invigilators who then trained other invigilators.

150. He felt let down by those who saw that the learners were taken out of the examination centre, and they should had made follow up to secure learners to come and write their examination, invigilators were aware so is Mathe.

151. He reported the matter to the SGB chairperson first, needed to give clarity and report to the parents and report the matter to the Respondent. He was surprised to see the Departmental official at school, he wrote a report to the Department officials on 17 November 2023.It is strange that he will report such distasteful incidences to SGB first before reporting to his employer.

152. He did not touch teacher, Dikgale, his office is always open and did not call her to his office, she came to request some document in her staff file, he requested her to make copies of the documents she needed in her personal file and not remove the file or any documents in the file.

153. He never requested any staff members, their place of residence or cellphone number because those details are available in the staff files, he can easily check and contact such staff member without asking.

154. His personal view is that, on sexual harassment, nobody is allowed to abuse anyone sexually or to commit sexual harassment, he will therefore not do something like that.

155. Staff members submit leave form when taking leave and such leave forms contain contact details and physical address and such information is always updated and therefore would simply check on the system and not ask staff members.

156. There is teachers WhatsApp group at the school and therefore would always access the teachers and no need to ask for their residential addresses.

157. He no longer greets through handshakes but only verbally greetings, does not touch leaners, does not touch teachers and does not touch anyone.

158. He was never subjected to any disciplinary process since he started his career as a teacher and that demonstrated the kind of a discipline leader, he is.There is only one incidence around 2014, where an official of the department visited his school, and told the Applicant that heads will roll because some principals disobeyed the MEC instruction to meet in 2010.He was dismissed around 2014 and reinstated in 2015.

159. There is no single grievance against him since he started his career with the Respond, saves to say one day, a local SADTU site steward came to his office, he was with the chairperson of the SGB discussing the school AGM, and the local SADTU site steward suggested that the school should absorb teacher Dikgale in a permanent post, in exchange of her dropping the sexual harassment against the Applicant. He was taken aback and for the first time, he was alerted of this issue.

160. If teacher Dikgale informed him of that incidence, he would have apologized and never repeated that mistake.

161. The Director of transformation unit, Buyi, came to the school, to discuss the issue of teacher Dikgale and asked if Banda was ever at school to discuss that matter or if there were discussions on that matter him. Buyi suggested that they resolve the sexual harassment with teacher Dikgale, but Dikgale suggested that she would prefer SADTU to assist her and it should invited to be in that meeting.

162. I asked the Applicant question of clarity on what time did he called teacher Dikgale, and responded that it was once around past four and he luckily got help from other teachers at school.

163. The prayer sought by the Applicant was retrospective reinstatement.

ANALYSIS OF EVIDENCE AND ARGUMENTS:

164. In considering the merits of this dispute, I had regard to the provisions of the LRA, the ELRC Dispute Resolution Procedure, and the Code of Good Practice: Dismissal (the Code) of the LRA and relevant case law.

165. Everyone has the right to a fair labour practices. This cardinal principle is enshrined in section 23 of the Constitution of the Republic of South Africa Act 108 of 1996. This right is well entrenched by section 185 of the LRA, which provide the right not to be unfairly dismissed or subjected to unfair labour practices.

166. In the case of Sidumo and another v Rustenburg Platinum Mines (Pty) Ltd and others (2007) 28 ILJ 2405 (CC) 2007) 12 BLLR 1907 (CC), the court held that, “one of the primary objects of the LRA is to give effect to and to regulate the fundamental rights conferred by section 23 of the Constitution, including the right to fair labour practices enshrined in section 23(1).

167. The Applicant’s legal representative submitted that though the Applicant was a school principal, lacks the requisite skills to represent himself, more so with lot of witnesses from both the Applicant’s side and the Respondent’s side. His abilities to understand and apply leading of witnesses, cross examination and re-examination will be hampered, more-so he was traumatized by the dismissal.

168. Equally the Respondent’s representative opposed the legal representation application because the Applicant was represented by the teacher’s union, National Teachers Union, she does not have any legal qualification and therefore legal representation should not be allowed.

169. Section 188 of the LRA provides that an employee’s dismissal will be unfair if the employer fails to prove that the dismissal was for a fair reason and that it was effected in accordance with a fair procedure.

170. In terms of section 192 of the LRA, the employee must prove that he was dismissed and the employer then bears the onus to prove that the dismissal was fair.

171. The dismissal of the Applicant was not in dispute; both the Respondent’s representative and the Applicant’s legal representative confirmed that the Applicant was dismissed.

172. Procedural fairness is not in dispute but only substantive fairness is in dispute.

173. The Respondent’s witnesses, Kgoale and Mathe corroborated each other on the aspect of the explanation of the Applicant on 17 November 2020, wherein the Applicant provided two reasons why he removed the learners from the examination room. Those two reasons were that the learners did not perform well during prelims and they failed to attend revision classes and therefore in his view, those learners would tarnish the school pass rate.
174. The Applicant conceded that he removed all students that were seated in the examination room, from examination room to laboratory, for the purposes of reprimanding them, for learners to account by writing statements as to why they failed to attend revision classes and to commit themselves that they will never repeat the same mistakes. The writings by the learners were intended for school management team and the SGB, according to the Applicant.

175. Some learners corroborated the Applicant that he gave them a piece of paper to write, why they did not attend revisions classes.

176. It defies logic why would the Applicant remove learners from their examination room, an hour before their final examination, disrupt their examination and denied them of their right to write their examination, merely to reprimand them and plead with them to commit to, never to repeat the same mistake.

177. Examination is nerve wrecking to some learners and emotional taxing for others, what more if you are reprimanded an hour before such examination. What about their dignity and self-esteem when called in front of their peers just before exanimation and removed from such examination after spending the whole year studying those subjects.

178. Those learners wrote mathematics paper 1 and technical mathematics paper 1 and were denied to write paper 2. There is no slightest justification for this grossly unfair conduct of the Applicant on vulnerable learners. It is undisputed testimony that doing badly during the prelims does not translate or guarantee that the learner will fail and therefore the Applicant was unfairly selfish by trying to maintain a good pass rate for the school at the expense of the learners and their future.

179. It was the learners testimony, who were all his witnesses, that the Applicant released them after all others learners at school completed their morning session final examination on 16 November 2021. If indeed the intention was to reprimand learners and plead for their commitment not to repeat the same mistake, why keep the learners in the laboratory room for the duration of the examination on that morning session? This explanation by the Applicant seems far-fetched and merely after thoughts to justified his unjustifiable conduct.

180. The Applicant and his witnesses were at pain to suggest that the deputy principal was aware that they were at the laboratory room, he inform some of them before examination that they would not be allowed to write examination if they fail to attend revision classes, some learners were allegedly sent by the same deputy principal to join their fellow learner at the laboratory room. Strange enough, the Applicant indicated that he was giving support to the deputy principal by taking those learners to the laboratory room, he was given the list of the learners by the same deputy principal but failed to provide such explanation to the departmental officials on 17 November 2020.

181. Equally discomforting is the evidence of the Applicant’s witnesses on the whereabouts of the deputy principal on 16 November 2020.Applicant indicated that he met the deputy principal , who reminded him about the learners that failed to attend revision classes and pleaded for support, he went back to his office to fetch the list and came back and requested invigilators to remove the learners from examination.Andries testified that the deputy was with the Applicant when learners were removed from examination room and taken to the laboratory room. Whilst one learner, Rosina Rian Makwashe testified that the deputy principal was at the gate whilst learners were registering and taking temperature in compliance with covid-19 directives.

182. Dikgale testified that the Applicant touched her waist without her permission and left his office without saying anything and the following day reported the incidence to the HOD.She reported the matter to the SADTU executives when they visit the school. She reported the sexual harassment claim to the facilitator who was conducting training on sexual harassment. The Director of Transformation visited the school and try to facilitate resolution of sexual harassment claim between the Applicant and teacher Dikgale but had to leave, when Dikgale requested the presence of SADTU to deal with the sexual harassment claim.Juliuse Maake equally confirmed that the sexual harassment claim were brought to his attention through SADTU, site steward Mxengo, whilst seated with the Applicant, in his office.

183. It is quite baffling that Dikgale’s version that the Applicant would call her after 23H00, the following day the Applicant would just complain that he called her and she did not pick up without telling her the purposes of the call was not challenged during Dikgale’s evidence in chief and or the Applicant’s evidence in chief, saves to say denial during cross-examination.

184. To be precise, the local SADTU steward was quoted as saying, “I am glad to find you both here, the sexual harassment of Dikgale can be resolved through absorption into a permanent role at school”. The Applicant also testified to that effect.

185. On the date of the bag incident, Christopher Kwinda saw the principal taking Dikgale’s bag on the ground, prompting Dikgale to follow him in order to secure her bag back. It was Dikgale’s testimony that the teachers at the school were protesting and disengaging with school management, refusing to attend school management meeting, Christopher Kwinda confirmed such incidence saves to say the Applicant did not grab the bag from the Dikgale. Moeketsi equally corroborated Dikgale and Kwinda with regards to the proximity of the Applicant and Dikgale. To be precise, Moeketsi said that Dikgale was standing next to his car and did not see the Applicant grabbing the bag, he was not attending the meeting and is a teacher at the school.
186. The South African Constitution protect the right to dignity, equality and the fair labour practices in terms of the bill of rights. South Africa is committed to the elimination, prevention, and management of all forms of harassment, including gender based harassment in the workplace with the aim to create a safe workplace that are free from harassment. This cardinal principle, it’s a preamble of the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace and it is applicable to all workplace sectors inclusive of the public services.

187. It is quite strange that most teachers are subjected to unfair harassment in the workplace, but the Respondent employed change agents such a Director: Transformation, but why would a Director Transformation, Buyi or Banda visit the school and trivialize sexual harassment by just visiting school late and immediately leaving, and informed the victim that she / he needs to hurry somewhere despite a complain of this magnitude. This is mediocrity and should be condemned if true.

188. Equally disturbing is that Mathe, as deputy principal and chief invigilator, signed the absentee form and declare R7 and R8 as true and correct, and appended a signature but wrote unknown, after been instructed by the Applicant to write unknown. It is encouraging that one teacher refused to sign the document because learners were removed by the Applicant. Why execute unlawful instruction at deputy principal level, this cannot be condoned.

189. Therefore the Respondent’s witnesses’ testimony was credible, highly probable and corroborated each other, and in many instances the witnesses of the Applicant equally corroborated the witness of the Respondent, even though not entirely, the teachers disengagement with school management, the Applicant taking Dikgale’s bag on the ground (Kwinda) and Dikgale not far from Moeketsi’s car.

190. The Applicant and his witnesses’ testimony, except Moeketsi and Kwinda, were riddled with lot of inconsistencies, deception, and anger and mostly highly improbable.

191. In Tseane v Get Ahead Foundation (1995) 16 ILJ 202 (IC), the court held that an employee owes an employer a duty to always promote its business interests and act in its interest. A breach of this duty by an employee entitles an employer to dismiss him.

192. In the Publication, Principles pf Practice Labour Law, issue 7, (2005) paragraph 245, it is held that, “When rendering services, the employee must ensure that his services are executed in good faith and that they in no destruct from the relationship of trust”.

193. The Applicant removed learners from the examination and only released them after other learners completed their examination paper on that day. This conduct denied learners of their rights to write examination and improve on their results. Despite the fact that the learners were taken to the laboratory to be reprimanded, they were not reprimanded, The Applicant tried to impress that the learners were there to write their reasons why they did not attend revision classes and to commit never to repeat such mistakes but that was not done.

194. In Department of Labour v GPSSBC (2010) 231 ILJ 1313 (LAC), the Labour Appeal Court confirmed the principle that a sanction aimed at correction and rehabilitation is of no purpose when an employee refuses to acknowledge the wrongfulness of his / her conduct.

195. There was no slightest remorse on the Applicant, he blames his colleagues, the Department officials and his health challenges despite learners testimonies that it was him that released them after examination.

196. It is common principle in law that defects in the charge sheet can be cured by evidence and that the arbitration is a de novo process. The Applicant committed the misconducts and the Respondent resorted to corrective action to protect the learners, parents and the country.

197. In terms of item 4 (1) of the Code of Good Practice on Dismissal (the Code), the employer should notify the employee of the allegations using a form and a language that the employee can reasonable understand, and the employee should be entitled to a reasonable time to prepare the 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 written notification of that decision.

198. The Applicant was charged and served with charge sheet, served with notice to attended a disciplinary meeting, he participated in the disciplinary hearing, he was given a verdict, allowed mitigation and appeal, he was notified of the sanction and outcome of the appeal and advised to refer the dispute to the ELRCS.

199. Therefore the dismissal of the Applicant did complied with item 4(1) of the Code of Good Practice on Dismissal. The dismissal was procedurally unfair.

200. Equally, in terms of item 7 of the Code of Good Practice on Dismissal (the Code), the following must be consider in determining the fairness of the dismissal, whether the employee contravened the rule, if the rule was valid or reasonable, if the employee was aware of the rule or is reasonable expected to be aware of the rule, the rule is consistently applied by the employer and if dismissal is the appropriate sanction for breached of such a rule.

201. In Woolworths (Pty) Ltd v SACCAWU and others (JA 56/2016) (2017) ZALAC 54, the court laid down steps for an inquiry into a breach of a rule and held that in cases of a breach, the Commissioner must consider, whether there was a rule breached, the nature and importance of the rule breached, whether the employee had knowledge of the rule or was expected to have such knowledge, whether the rule had been consistently applied and whether dismissal was an appropriate sanction.

202. The Applicant despite denying the charges, overwhelming, credible and corroborated evidence, pointed to the commission of the misconducts by the Applicant.

203. This misconducts are of a serious nature and warrants the Respondent losing trust and confidence in the Applicant, more so that the Applicant was employed in a position of trust to build capacity in the educational sector. The Applicant by denying the learners to write their final examination cannot be accepted and condone.

204. The Respondent has discharged the onus to prove the existence of good reasons for the dismissal of the Applicant and therefore cannot be faulted on substantive fairness. The conduct of the Applicant was costly in terms of national capacity building framework, undermined the educational sector and deceitful.

205. Therefore the Respondent cannot be faulted for dismissal on substantive fairness and procedural unfairness.

206. Legal representation was granted considering the interests of fairness and to expedite the process, taking into account the potential prejudices if the Applicant was not legally represented. The Respondent’s representative was more experienced in labour litigation as compared to the Applicant.

RELIEF SOUGHT:
207. In terms of section 193(2) of the Labour Relations Act, the arbitrator must reinstate the employee unless:-
1. The employee does not wish to be reinstated or re-employed
2. The circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable
3. It is not reasonably practicable for the employer to reinstate or re-employ

208. The prayer sought by the Applicant was retrospective reinstatement. The Applicant is not entitled to any reinstatement as relief sought for the alleged unfair dismissal. The relationship between the Respondent and the Applicant is beyond repair, based on the totality of evidence presented.
Award

In the premises I make the following award

209. The Applicant, Mogale Asser Masenya’s, dismissal by the Respondent, Gauteng Provincial Department of Education, was procedurally and substantively fair.

210. The Application is dismissed.

211. There is no order as to costs.

Thus, done and signed at Pretoria, dated 22 May 2023.

Signature:

ELRC: Panelist: Ntjatja Klaas Aphane