ELRC155-23/24GP

Panellist: THABE PHALANE
Case No.: ELRC 155-23/24 GP
Date of Award: 18 OCTOBER 2023

In the Arbitrator between:

Mmekwa K
(Employer / Applicant)

and

Gauteng Department of Education
(Employee / Respondent)

Employee’s representative: Ms Mmule Boikhutso-Union Official, SADTU
Telephone:
Telefax:
Email:

Employer’s representative: Ms Lungile Mathobela
Telephone:
Telefax:
Email:

DETAILS OF HEARING AND REPRESENTATION.
1. The following is an outcome arbitration award from an arbitration that took place on 26 July 2023, 08 September 2023 and 28 September 2023, at Soshanguve Teachers Centre, Soshanguve, Tshwane.

2. Both parties attended and the Applicant, Mmekwa, S.K was represented by Ms Mmule Boikhutso, a Union Official from SADTU, whilst the Respondent, Department of Education-Gauteng was represented by Ms Lungile Mathobela, the Respondent’s representative.

3. The proceedings were digitally recorded.

4. The Respondent handed in a bundle of documents marked bundle ‘R’ and the Applicant submitted bundle marked bundle ’A’. Both parties called one witness who testified and were cross examined.

5. The parties agreed to submit written arguments on 28 September 2023. The Applicant submitted on 28 September 2023, and the Respondent did not submit written but they were submitted.
ISSUE TO BE DECIDED
6. I am required to determine whether the dismissal of the Applicant was fair or unfair, and should the dismissal be found to be unfair determine the appropriate relief.
BACKGROUND TO THE DISPUTE
7. The Applicant was employed as an educator from 14 January 1994 and was working at Bodubelo Primary School in Ga-Rankuwa. He resigned in 2008 and was re-employed in 2014.

8. He was dismissed on 26 May 2023 after a disciplinary hearing where he was found guilty of assault on a learner. The Applicant was charged and sanctioned with misconduct on 4 occasions, 2008, 2018, 2019 and 2023. He was issued with 2 final written warnings in October 2008 and February 2018.

9. The last charge read; Charge 1- …’ It is alleged that on or about 7 & 8 April 2022 while on duty at Bodubelo Primary school you assaulted a Grade 6 learner (learner X) by slapping him on his face with an open hand ‘.

10. The Applicant pleaded guilty to the allegations against him. He was found guilty and he appealed the sanction. His appeal was dismissed on 18 May 2023 and he received the appeal outcome on 25 May 2023 where the sanction of dismissal in terms of section 18 (3) (i) of the Employment of Educators Act 76 of 1998 was confirmed.

11. The Applicant wants a lenient sanction short of dismissal.

12. The Respondent then called its witness and herein follows a summary of their evidence.

SURVEY OF EVIDENCE AND ARGUMENT

RESPONDENTS EVIDENCE AND ARGUMENTS
1st witness, Mr Leka Noram Magodielo.

13. The witness is the Senior Education Specialist in Tshwane South District. He was the presiding officer of the Applicants disciplinary hearing.

14. The Applicant pleaded guilty at the disciplinary hearing. He admitted to the allegation and he asked for mitigation and aggravating factors.

15. It was not the first time the Applicant was charged with misconduct. He also considered the length of service, personal circumstances, and the nature of the offence as well as the fact that the Applicant showed remorse and pleaded guilty.

16. He also considered the Acts, policies as well as case law coupled with the employer recommended a sanction of dismissal.

17. The misconduct was therefore proven on a balance of probabilities and warranted a serious sanction. He could not interfere with the employers’ recommendation unless the sanction was unreasonable or impractical to implement.

18. Corporal punishment is not permitted in terms of section 10 of the South African Schools Act (SASA) and the employee may be dismissed.

19. In terms of the Employment of Educators Act (EEA) the employee found guilty of assault may be liable for a fine or dismissal.

20. After the hearing he submitted his recommendation to the HOD who then implemented the sanction.
Under cross examination
21. The agreed that the Applicant showed remorse. He looked at the aggravating factors as well.

22. The best interests of the child take precedence whenever a child is involved. The nature and severity of the misconduct warranted a dismissal.

23. Other factors outweighed the showing of remorse. The sanction was also consistent with other similar cases that the employer had previously issued.

24. He also considered that the remorse was prompted by the fact that the Applicant did not have a choice or he was forced by the overwhelming evidence against him.

25. The Applicant was not a candidate for rehabilitation because he previously committed a similar offence. The previous incidents showed that the Applicant disciplinary record is not clean.
APPLICANT’S EVIDENCE AND ARGUMENTS
Mr Samuel Kwele mmekwa

26. The Applicant decided not to testify and instead submitted closing arguments at the end of the arbitration.
ANALYSIS OF EVIDENCE AND SUBMISSIONS
27. The parties initially presented an agreement that they wanted to proceed with the matter by way of submitting oral arguments in mitigation of sanction.

28. I warned the parties that there may be a dispute of fact and when that arose I directed that evidence be led instead. The parties therefore made their arguments first and later presented evidence when they raised disputes of fact and I directed that witnesses be called to clarify the disputed facts.

29. There is no requirement for the employer to prove the guilt of the employee beyond a reasonable doubt. Proof on a balance of probabilities is sufficient.

30. The employee has been charged in terms of Section 18 (1) (r) of the Employment of Educators Act 76 of 1998, and was dismissed in terms of section 18 (1) ( r) as amended.

31. Section 192 of the Labour Relations Act 66 of 1995 (the Act) requires the Applicant to show the existence of a dismissal and the Respondent must then prove that the dismissal was fair.

32. Section 188 provides that a dismissal will be unfair if the employer fails to prove that the reason for the dismissal was a fair reason and was affected in accordance with a fair procedure.

33. Item 7 of the Code of Good Practice, Dismissals, provides that any person determining whether a dismissal for misconduct is fair should also consider whether or not employee contravened a rule or standard regulating conduct or of relevance to the workplace, and if a rule or standard was contravened, whether the employee was aware of the rule or standard and whether the rule has been consistently applied and finally, whether dismissal was an appropriate sanction.

34. The degree or extent of proof required is that of a balance of probabilities. In determining probabilities, evidence is assessed against human experience, logic and common sense.

35. Where the versions are equally probable or in balance, a party carrying the onus of proof should lose as having failed to discharge the onus.

36. Evidence is the material provided to the Commissioner to enable him to establish the probable facts. In order for evidence to be admitted into the record, it must be relevant to the issue being determined and must be reliable.

37. Relevance is determined with reference to the issue in dispute. Arbitrators must distinguish between facts that are sufficiently relevant to be admissible and facts too remote to the issue in dispute.

38. Evidence that is not reliable, like opinion or hearsay evidence, should not be admitted.

39. The reliability of evidence may also be affected by the opportunity to experience or observe the event in question as well as the quality, integrity or independence of the witnesses’ recollection.

40. There is no rank as to which nature or type of evidence is more reliable however oral evidence remains the best and direct evidence especially if experienced or observed by the witness.

41. Circumstantial evidence proves a fact indirectly and is admissible if tendered to prove a relevant fact. It is persuasive if the inference sought to be drawn from the evidence is consistent with all the facts proved and it is the most plausible or natural inference, not necessarily the only inference.

42. This type of evidence usually come in the form of corroboration and once all the evidence is tendered the Arbitrator must weigh up the evidence as a whole and determine what evidence is more probable, by assessing the probabilities and improbabilities of each version and on each disputed fact.

43. The Arbitrator should not reject evidence based on immaterial or minor inconsistencies. A credibility finding based on the observation of a witness should not be the first recourse in evaluating probabilities.

44. This involves a finding of fact based on an assessment of the reliability, credibility and ultimately the probability of the evidence evaluated against the applicable rules.

45. Commissioners must guard against rejecting evidence on the basis that there are a few discrepancies, unless the evidence is found to be false.

46. Only that evidence which is false must be rejected, and not the evidence in its entirety.

47. In Fidelity Cash Management Services v CCMA and others [2008] 3 BLLR 197 (LAC), it was held that it is an elementary principle of our Labour law that the fairness or otherwise of a decision to dismiss must be determined with reference to the reasons for dismissal, as advanced by the employer at the time of dismissal.

48. In Sidumo and another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC); [2007] 12 BLLR 1097 (CC), 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 that decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all the relevant factors and circumstances.
49. It is my finding based on the above that the employee committed misconduct as per section 18 (1) (r) of the Employment of Educators Act by having assaulting a learner at his school.

50. The employer argued that the employee is guilty of misconduct and should be dismissed. He failed to act in loco parentis.

51. Any form of inappropriate behavior in the part of an educator towards a learner is and must always be viewed in a serious light. Educators are entrusted with the care of children and adolescents.

52. They must at with the utmost of good faith, and a breach of this trust, dismissal is the appropriate sanction. By the nature of their work, educators already have access to children.

53. Dismissal may arise where there is a breakdown in the employment relationship, when the educator has committed assault/attempted assault of a learner, student or fellow employee. The employee may also be dismissed if he commits corporal punishment.

54. The factors to consider include the nature of the misconduct, possible prejudice to the employer, employee’s state of mind, employer’s disciplinary code, and consistency of disciplinary action, prior warnings and the knowledge by the employee that the employee could be dismissed for misconduct.

55. Assault is in itself serious misconduct that leads to a breakdown in the employment relationship. He had a duty to ensure the safety of the learners and the employer cannot risk another assault or worse.

56. The Applicant was experienced but failed to correct his behaviour. He knew of his final warnings and still assaulted a learner at his school.

57. The Applicant showed remorse throughout the arbitration. He however failed to testify and therefore the fact that he pleaded guilty was accepted and unchallenged.

58. He has also accepted the commission of past irregularities, and although showing remorse is a first step in rehabilitation, this step has occurred more than once.

59. I do accept however that the applicant served the sanction and paid the fines and the warnings should be removed and destroyed from his employment record however that does not eradicate his disciplinary record, other than to bar the lapsed warnings from influencing the severity of an imposed sanction.

60. In these circumstances and based on the conclusions above, I find that the Respondent has shown that the dismissal of the Applicant was substantively fair.

61. In light of the above I deem the following award to be competent.
AWARD.
62. The dismissal of the applicant, Mmekwa, S.K was substantively fair.

63. The referral made by the Applicant is accordingly dismissed.