ELRC617-22/23LP

IN THE ELRC ARBITRATION
BETWEEN:

SADTU obo MODIPANE, N E APPLICANT/EMPLOYEE
and
DEPARTMENT OF EDICATION: LIMPOPO RESPONDENT/EMPLOYER


ARBITRATION AWARD

Case Number: ELRC617-22/23LP

Last date of arbitration: 19 July 2023
Receipt of closing arguments: 26 July 2023
Date of final award: 03 August 2023

MATHEWS RAMOTSHELA
ELRC Arbitrator


Case No: ELRC617-22/23LP

ARBITRATION AWARD


DETAILS OF HEARING AND REPRESENTATION

[1] The arbitration hearing was held at the employer’s offices, Polokwane, Limpopo, on 19 July 2023. The employee, who was present, was represented by T Monyai, an official of SADTU. E Nyathela, the employer’s employee relations personnel, presented its case. The proceedings were digitally recorded. The parties submitted bundles of documents marked as Bundle A and B.

ISSUE TO BE DECIDED

[2] I am enjoined to determine whether the employer has committed an unfair labour practice relating to disciplinary action short of dismissal when the employee was suspended for a month without pay.

BACKGROUND TO THE ISSUE

[3] Common cause issues/facts

(a) The employee is employed as an educator at Makgale-Phashe Secondary School.
(b) The employee was charged and found guilty for the following charge: “You contravened the provisions of Section 18(1)(t) of the Act in that, on or around 27th may 2021 or at any period incidental thereto, at or near Makgale-Phashe Secondary School, you verbally assaulted a Grade 09, learner Salome Bopape by saying to her ‘a ke nyake dingakanyana le mathwasana kamo, ga ke ditshabe’ and therefore you disrespected the learner.”
(c) Pursuant to a disciplinary hearing, the employee was found guilty of verbally assaulting a learner and the sanction meted out was a month’s suspension without a salary.
Issues in dispute

[4] Whether the employer’s aforesaid conduct of suspension without pay constituted an unfair labour practice.
SURVEY OF EVIDENCE AND ARGUMENT

EMPLOYEE’S EVIDENCE
Ngoako Ephraim Modipane testified as follows:

[5] On the day in question he was busy teaching learners in Natural Sciences when they told him that they were commanded by Solome Bopape to put salt in their pockets, school bags and also in their shoes every day when they come to school. They told him that Salome said the main reason they had to do that was to protect themselves against animals that would endanger them in the schoolyard. As he was their school teacher, he told them that they came to the school to learn only and nothing else. He told them that they are not of the same culture so if their parents agree on that note then they may put salt into their pockets but if they disagree they should not put salt into their pockets.

[6] The learners told him that they were afraid to come to school because Salome beat them up if they do not put in salt as he has told them.

[7] At the time he spoke to the learners Salome stood up and went out of the classroom. That is the reason why they were free to talk. Salome went out on her own voluntarily because she complained that he was making noise for her when teaching.

[8] When Salome walked out, he did not say anything to her but he just looked at her. Instead he just continued on with the lesson. He denies ever saying that "Ga ke nyake dingakanyana le mathwasana” (loosely translated as “I don’t want miniature traditional healers and initiates here”.What he remembers is that on the 30th of March 2021 all Grade 9 learners were not at school as they were on rotation.

Koketjo Ledwaba (Koketjo) testified as follows:

[9] In the year 2021 Salome was his classmate. On the day in question Salome told the learners in class that she did not understand the employee. Every time the employee came into the class Salome would walk out and sit outside to listen to music on her phone. She does not know anything about the employee uttering the words "Ga ke nyake dingakanyana le mathwasana". The employee did not mention the words to Salome.

Violet Letswalo (Violet) testified as follows:

[10] She is a learner at the school. During the year 2021 Salome was her classmate. From January to April she was never absent from school. On 30 March she was absent because they were on rotational basis due to Covid-19.

[11] On the day in question, upon the employee entering the classroom, Solome took her desk and went to sit outside listening to her music on the phone. She was complaining that the employee was making noise and was boring. As a class, they did not discuss anything with the employee.

EMPLOYER’S EVIDENCE

Salome Bopape testified as follows:
[12] During the year 2022 while she was a Grade 10 learner with the employee was her class teacher. There was an incident in the year 2021 but she cannot recall the precise date.

[13] She is undergoing training for traditional healing and she once came to the school in the company of her mentor to explain to the principal and management that she has got spiritual challenges and they must not be surprised. Whenever she was in classroom she would encounter spiritual fits.
One day the employee entered the classroom making noise. She responded by walking out of the classroom and sat outside. She took her desk with her and sat at the window next to the door.

[14] When the employee entered the classroom, he found one student writing on the chalkboard and accordingly started making noise, complaining that it was during his period. As she was walking out of the classroom, she heard the employee asking other learners why she (herself) was walking out. She heard them telling the employee that she does not like noise. It was then that the employee said that she thought she was a special person and she must leave the school and go for initiation. He further added that he does not like initiates at the school.

[15] While she was sitting outside the classroom next to the door, she heard the employee saying "Ga ke nyake dingakanyana le mathwasana mo, Ga ke di tshabe".

[16] The noise that the employee was making was not directed at her. At no stage particularly when she was walking out did she ever exchange any conversation or words with the employee. The employee did not protest or try to stop her when she was leaving the classroom.

[17] It was only after she had left the classroom that the employee started talking to the other learners in the classroom. Koketjo may not have confirmed the utterances by the employee but it is simply because he was afraid to tell the truth.

CLOSING ARGUMENTS

[18] As agreed between the parties and myself, written closing arguments were to be submitted for consideration. Both parties have duly made the submissions, which have been taken into account but would not be repeated herein on account of brevity.

ANALYSIS OF EVIDENCE AND ARGUMENTS


[19] As per the provisions of section 186(2) of the Labour Relations Act 66 of 1995 (“the Act”), the employee’s claim is premised upon the residual unfair labour practice relating to a disciplinary action short of dismissal.

[20] Being the one that alleges unfairness, the overall onus to prove that the employer’s conduct constitutes an unfair labour practice lies with the employee. However, seeing that the employer’s conduct (suspending the employee and docking his salary as punishment) emanates from allegations of misconduct as aforesaid, the onus to prove that the employee committed an act of misconduct that justified the penalty, lies with the employer.

[21] From her own testimony, Salome was not inside the classroom when the employee allegedly uttered the words. Her version that she was seated next to the door in close proximity such that she could be able to hear the conversation between the employee and other learners is contradicted by her own other version that the reason why she left the classroom was to avoid the noises that were made by the employee. If, as per her version, indeed the decibels that were emanating from the employee's voice were so high that same could trigger her to leave the classroom so as to avoid spiritual challenges, it begs the question why would she still sit within earshot of what she deemed unbearable din by the employee.

[22] I accordingly find that it is improbable that she could have seated close enough to still listen to the loud voice that she was trying to move away from. Her evidence is devoid of any facts that indicate that when she left the classroom, she still wanted to eavesdrop on the employee and the learners that she left behind in the classroom. It is as if she knew beforehand that in her absence from the classroom, the employee was going to gossip about her. Accordingly it is my inevitable conclusion that the employee was not seated within earshot of the conversation that was unfolding inside the classroom and she could not have heard the words that she so precisely quote. In the absence of any corroborating evidence by at least one of the learners that were present inside the classroom, the very precise manner in which the employee’s alleged utterances by someone that was outside the classroom has been presented before this tribunal makes the evidence improbable.

[22] Given the picture painted by the totality of the evidence regarding the classroom incident, only those who were inside the classroom and more importantly being directly addressed by the employee could have had an opportunity to hear each and every syllable that was verbalised. By her own evidence, the employee places herself in a situation whereby she did not have an opportunity to hear the precise words.

[23] Furthermore, the employee's version has not been corroborated by any other learner that was in the classroom. Given that the incident happened under circumstances where there were other learners in the classroom, one would have expected at least one of the learners to testify as he or she would in all probability have had a better opportunity to listen and hear what the employee said simply because he or she would have been in direct conversation with the employee, unlike Salome, who was seated outside.

[24] Taking into account the aforementioned, I am left with no option but to conclude that the evidence by Salome that the words were uttered is not sufficient to substantiate the allegation. As the employer relied solely on her evidence, bearing in mind that it is the employer that shoulders the requisite burden to prove the allegations (of misconduct), the inevitable conclusion is that the employer has failed to prove that the employee committed any act of misconduct, as alleged or at all.

[25] I may add that both Koketjo and Violet, the two witnesses for the employee, who were present in the classroom on the day of the incident, testified that they did not hear the employee uttering the words. As already indicated above, just like any other learner in the room, they had a better opportunity to hear and their testimony thus carries more weight than what Salome presents. Salome's evidence that Koketjo was afraid to tell the truth is based on pure conjecture. She did not present any facts to substantiate her assertions herein.

[26] In conclusion, I find that the employee did not commit the alleged act of misconduct. Accordingly, the employer’s action of finding him guilty and furthermore meting out a penalty of suspension with a docked salary constitutes an unfair labour practice relating to a disciplinary action short of dismissal.
[27] As at the time of the arbitration hearing, the employee has already served the suspension and uplifting same has thus become moot. However, the employee still remains without his salary in respect of the month.

AWARD

[28] The employer’s conduct constitutes an unfair labour practice relating to a disciplinary action.
[29] I hereby order the employer to expunge the penalty of suspension from the employee’s disciplinary record.
[30] I hereby order the employer to pay the employee a month’s salary that had been docked as a penalty, being an amount of R 30 557.12, less applicable deductions, such payment to be made by not later than 22 August 2023.

Council Panelist: MATHEWS M RAMOTSHELA

Signed