ELRC611-22/23 GP

Case Number: ELRC 611-22/23 GP
Part Time Senior Panelist: M.A. HAWYES
Date of Award: 30th August 2023

In the HEARING between

Gloria Mtwesi

(Union/Applicant)

And

(Respondent)

Gauteng Department of Education

DETAILS OF HEARING AND REPRESENTATION

1. The case was scheduled for arbitration on the 10th March 2023, the 18th April 2023, the 17th May 2023, the 13th June 2023, the 19th July 2023 and eventually finalized on the 11th August 2023.
2. The parties requested and were granted the opportunity to submit written closing arguments by the 18th August 2023. Both sets of written arguments were timeously received.
3. I also requested a one-week extension for the submission of my award which was granted and extends the submission date for the award to be submitted to the 4th September 2023.

4. The Applicant, Gloria Mtwesi assisted on the odd occasion by her brother, represented herself at the arbitration hearing

5. Mr. Vusi Ndlovu, a labour relations official, represented the Respondent, Gauteng Department of Education.

6. The proceedings were digitally recorded, and long hand notes were also kept of the process. Various bundles marked from A to F were utilized by the parties.


ISSUE IN DISPUTE

7. It is common cause that the Respondent dismissed the Applicant for alleged misconduct. A point in limine surfaced during the course of the arbitration on whether the Applicant was mentally capable of appreciating that she was committing misconduct and acting in accordance with that appreciation.

8. The Applicant’s dismissal was finally confirmed on appeal on the 13th September 2022.

BACKGROUND TO THE ISSUE IN DISPUTE AND COMMON CAUSE FACTS

9. The employer employed the employee as a PL 1 educator and at the time of her dismissal she was employed at Ekisani Secondary School in Katlehong.

10. At the time of her dismissal the Applicant earned a gross income with allowances of R32 572-07.

11. The Applicant’s core duties are contained in Chapter C, Paragraph 3 of the Personnel Administrative Measures colloquially known as the PAM document.

12. It is common cause that during the period of April 2021 the Applicant failed to carry out her duties as set out in the aforementioned provisions of the PAM document.

13. Instead of going to class to teach learners allocated to her as reflected in Allegation 1 on page 1 of bundle ‘A’, the Applicant would report for duty, sign the attendance register and sit in her car for the entire school day.

SURVEY OF THE EMPLOYER EVIDENCE AND ARGUMENT

14. The Respondent lead the evidence of numerous witnesses the testimony of which is mostly common cause.

15. Principal of the school, Mr. Fumbatha testified that on numerous occasions he had tried to persuade the Applicant to comply with her contractual obligations to teach all to no avail.

16. He would approach her car and attempt to persuade her to go to class. The Applicant refused and, in some instances, she would threaten him with violence.

17. This situation persisted for some time until Fumbatha enlisted the services of a temporary educator who began teaching the Applicant’s lessons.

18. It is also common cause that the Respondent through its Employee Health and Wellness Unit (EAP) based at Ekurhuleni South District and Transformation Directorate based at the Respondent’s Head Office had tried to intervene without any success.

19. It is also common cause that during the intervention the Applicant was requested to supply medical records and she did not comply. These requests were also unsuccessfully made to the Applicant’s next of kin (i.e., the Applicant’s brother who teaches at the same school and who attended the various intervention meetings).

20. The Respondent submitted that in the absence of any medical record/report pointing to the existence of a medical condition from the Applicant or her next of kin, the Respondent was left with no alternative, but to treat the Applicant’s conduct as a breach of the disciplinary code and to initiate charges of misconduct which ultimately lead to her dismissal.

21. Having had some experience as a former Chairperson of the Mental Health Review Board, I began to identify the signs of the Applicant suffering from a possible mental illness.

22. During the course of the Respondent’s case (and with the assistance of her brother as I recall) the Applicant handed in a purported medical report dated the 2nd July 2022 from one Dr R.J Marnewick (MBCHB). The report claimed that the Applicant suffered from a severe mental illness; schitzo affective disorder (bipolar subtype).

23. It was submitted on behalf of the Respondent that they only became aware of the existence of the medical report during the course of the arbitration.

24. During the course of his testimony Fumbatha conceded that in 2012 or thereabouts he was aware that the Applicant had been hospitalized for a condition related to mental health issues. He thought that the Applicant had fully recovered because the Applicant had acted normally since then and she had not displayed any behavior which suggested that she had relapsed.

25. Ms. Nomgidi Innocentia Seephe, an employee coordinator of the Respondent mentioned, inter alia, in her testimony that she suspected that the Applicant had mental health issues. After consulting with the Applicant’s brother and sister they too mentioned that the Applicant was acting in a bizarre manner, had a history of depression and may have stopped taking her medication.

SURVEY OF APPLICANT’S EVIDENCE AND ARGUMENT

26. The Applicant proved incapable of presenting a coherent defense to her dismissal. The Applicant kept insisting that she had taught her classes as normal and but yet she was unfairly replaced by another educator during the course of the year and was sent home.
ANALYSIS OF EVIDENCE AND ARGUMENT

27. Dr. Marnewick had indicated in his letter dated the 2nd July 2022 that he had recently been contacted by a Psychiatrist at Eden Park, namely Dr Bulelua Muganga that the Applicant had presented to her clinic in a very psychotic state.

28. Dr. Marnewick indicated in his letter that he knew the Applicant and she was known to him since 2013 where she had been diagnosed with a severe mental illness as indicated in paragraph 20.

29. He had also personally been consulted by the family (i.e., the Applicant’s sister (Sylvia) after speaking to Dr. Muganga.

30. Not content with basing my decision related to possible mental illness on the basis of a hearsay report I instructed the ELRC to issue a subpoena to both Dr. Muganga and Dr. Marnewick. The doctors both made themselves available but requested to testify online via Zoom. Dr. Muganga cancelled at short notice, but Dr. Marnewick was available and gave detailed testimony online at the arbitration on the 11th August 2023.

31. Dr. Marnewick confirmed that he had known the Applicant since 2013 when at that time she had presented suffering from a severe mental illness namely schitzo-affective disorder (bi-polar subtype). He had inter alia prescribed medication for her condition.

32. Marnewick testified further that he did hear again from the Applicant until contacted by Dr. Muganga in 2022, the family and the Applicant herself.

33. Marnewick testified further that he examined the Applicant and confirmed that she was suffering from the same mental illness that he had diagnosed her with in 2013. The Applicant was not on any medication. He found it necessary to admit her i.t.o the provisions of the Mental Health Care Act 17 of 2002 on an involuntary basis for three weeks to stabilize her condition.

34. Dr. Marnewick testified further that the Applicant’s behaviour of sitting in her car for the whole day was consistent with her mental condition. The Applicant was incapable of making decisions. In her mind she was in front of her class teaching and that is why she would become aggressive if it were suggested to her that she was not.

35. When asked to recommend appropriate action Dr Marnewick suggested that the Applicant should be reinstated back into her position as a PL 1 educator and that the Respondent should immediately activate the boarding process because of her mental condition.

36. I find on a balance of probabilities that at the time of the alleged misconduct the Applicant was suffering from a schitzo-affective disorder (bi-polar subtype) which severely impaired her decision making and impacted upon her ability to appreciate that she was committing misconduct and/or acting in accordance with that appreciation.

37. Since the Applicant is deemed not to have acted her guilt on two counts of misconduct cannot be confirmed.

38. The only appropriate relief is for the Applicant to be retrospectively reinstated as a PL1 educator and for the medically boarding process to immediately commence.

39. The Respondent has claimed that it did not know that the Applicant was suffering from a mental illness at the time it underwent their processes but there are signs that the Applicant’s principal and Nomgidi Seephe generally knew about the Applicant having the tell-tale signs of a mental condition. Viewed objectively and with all the role players involved the Respondent ought to have realized that the Applicant was suffering from a mental illness and acted accordingly i.t.o of its relevant policies.
40. The employer representative asked that I not order full retrospective reinstatement since this would be unduly harsh on the Respondent.
41. The Applicant in her written closing arguments mentioned that she had suffered financial hardship since her dismissal and had been forced to rely upon her family to support her since then.
42. After consideration I have decided that the retrospective nature of the Applicant’s reinstatement will be effective for six months.

AWARD

43. The dismissal of the Applicant, Gloria Mtwesi by the Respondent, Gauteng Department of Education was for no fair reason, therefore substantively unfair.

44. The Respondent is ordered to reinstate the Applicant as a PL 1 educator with effect from date of the confirmation of her dismissal being the 13th September 2022.

45. The retrospective effect of the Applicant’s reinstatement will be for a period of six months. The retrospective amount due and payable to the Applicant is calculated as follows: R32 572-07 x 6 = R 195 432-42.

46. The Applicant is directed to report at the relevant District Office on the 15th September 2023 at 8h00.

47. The payment of the retrospective back pay (less lawful statutory deductions) must be made to the Applicant on or before the 29th September 2023.

48. Upon the Applicant’s reinstatement the Respondent must immediately commence the medical boarding process due to the Applicant’s diagnosed mental condition.

49. No order as to costs is made.