ELRC105-22-23KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN KING CETSHWAYO DISTRICT BOARDROOM
Case No ELRC 105-22-23 KZN
In the matter between
NAPTOSA obo TANYA GIRVIN Applicant
and
DEPARTMENT OF EDUCATION -KWAZULU NATAL Respondent

ARBITRATOR: AS Dorasamy
HEARD: 10-12 OCTOBER 2023 2023
DATE OF AWARD: 25 OCTOBER 2023
SUMMARY: Labour Relations Act 66 of 1995 – Section 192(1) - alleged unfair
Dismissal

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1 This matter was set down for arbitration on various dates and on the 11 October 2023 the evidence was completed at the King Cetshwayo District Boardroom in Empangeni. This matter was held under the auspices of the Education Labour Relations Council (ELRC). Ms Ishara Dhanook of NAPTOSA, represented the applicant, Ms Nontobeko Magoso represented the Department of Education KZN. The parties were to submit written closing arguments by the 20 October 2023. The party’s submissions and the applicable provisions of the applicable circulars were considered when I arrived at my decision.

THE ISSUE IN DISPUTE
2 I am required to determine whether the respondent unfairly dismissed the applicant and dependent thereon the appropriate relief may be determined.

THE BACKGROUND TO THE DISPUTE
3. The applicant was the deputy principal (DP) of Thuthukani Special school hereinafter referred to as the school and was found guilty and dismissed on the following charge:
It is alleged that on the 23 March 2021 at Thuthukani Special School while on duty, you conducted yourself in an improper, disgraceful, or unacceptable manner in that you instructed Mrs G N Nxumalo to pick up faces (faeces) from the bathroom floor using the serving spoon thereby contravening Section 18 (1) (q) of the Employment of Educators Act 76 of 1998 as amended.
4. She challenges her dismissal and prays for the dismissal to be put aside, that she is reinstated with back pay and full benefits due to her.
5. The respondent seeks that the dismissal be confirmed as an appropriate sanction.

RESPONDENT’S OPENING STATEMENT
6. The applicant was employed since 2007 and was thereafter appointed as Deputy Principal in February 2020.
7. She was charged for an incident in contravention of section 18(1) (q) where she conducted herself in an improper, disgraceful or unacceptable manner in that she instructed Ms Nxumalo to pick up faeces from the bathroom floor using a serving spoon. She was found guilty by the chairperson of the Disciplinary Hearing and the sanction of dismissal was pronounced.
8. The incident occurred on the 23 March 2021.
9. The respondent will prove that there was a rule, the rule was breached and the applicant ought to have known the rule. The rule was reasonable and consistently applied and that dismissal was an appropriate sanction.

APPLICANT’S OPENING STATEMENT
10. The union contended that the dismissal was both unjust and unwarranted.
11. The union will argue that her termination violates her rights under the SA jurisprudence namely the principles referred to in the Sidumo case which established fair procedures for dismissals.
12. In applying the Sidumo principles to the present case her dismissal falls far short of the necessary standards.
13. The proceedings leading to her termination were marred by procedural irregularities, bias and a disregard for her constitutionally protected rights.
14. In the disciplinary hearing the respondent failed to prove there was a rule, whether the applicant was aware of the rule or that any rule was broken and the respondent failed to show that there was a breakdown in any relationship between the employer and employee. The chairperson displayed a clear predisposition of finding fault with the applicant. Very importantly she failed to consider all the evidence and resorted to a predetermined outcome.
15. The chairperson had a blatant disregard for impartiality and coming back to the Sidumo case this has compromised the decision-making process.
16. In the employer’s bundle pages 14-17 it confirms that the decision to charge and dismiss was politically motivated.
17. The decision to dismiss is not one that a reasonable decision-maker would make or was a decision to appease a political party.
18. She thought about a solution within limited resources and time constraints. It was never stated at any stage that the serving spoons would be used to serve food. Worst case scenario if the intention was to serve food the important question is was it used for that purpose.
19. Consider the unjust treatment of the applicant and grant her the relief she deserves.

RESPONDENT’S CASE
SUMMARY OF EVIDENCE AND ARGUMENT ON BEHALF OF THE RESPONDENT
THE SALIENT ASPECTS OF THE EVIDENCE ARE RECORDED BELOW.

MRS GUGU NOZIPHO NXUMALO
Mrs Nxumalo testified to the following effect:
20. She is a cleaner at the school and knows the respondent as her supervisor and deputy principal. She supervised her in 2021. On the 23 March 2021 around 8H30-9H00 she cleaned the bathroom. On that day she did not arrive at 08H00 because she had problems with transport.
21. When she went to the bathroom she notices faeces on the floor. She reported it to the applicant and asked her if she could use the hosepipe to clean it. She did not allow her to use the hosepipe and she came back with serving spoons.
22. She was asked to wash the spoons and return it to her. This was not the first time a learner messed the toilet. It happens once in a while and they clean it up using the hosepipe.
23. She washed the spoons and gave it back later. She kept it elsewhere. After hiding the spoons, the applicant was looking for her.
24. Around lunch time the applicant said she wanted to use the spoons. She gave her the spoons and she asked her not to tell anyone what they used the spoons for. She saw Ms Manana driving in and went to her and informed her that she used the spoons to clean the faeces. She then informed Ms Ndwandwe about the incident.
25. Previously when the toilet was messed they used a hosepipe. She did not know where the spade was and who kept the keys. Ms Manana did not believe her and asked her to go to Ms Ndwandwe.
26. On the same day before the school ended the applicant asked her why she did it if it was wrong. Her response was she was taking an instruction from her supervisor. The serving spoons were not to be used to pick up faeces.
27. Educators saw her using the spoons. She does not know about it being political. On the Monday morning she saw people wearing red t-shirts and there was someone who wanted to speak to her. The principal gave the EFF 5 minutes with her. The matter was with her union.
28. The principal spoke to her on 1 April 2021 but she refused to discuss the matter. On that day when she called her she was trying to put her phone on silent and she took it and put it a bit far from them.
29. She was not given a spade to clean the mess.
30. She lodged a grievance and they were called for a hearing. She cannot recall what happened at the grievance meeting.
31. She continued to work being supervised by the applicant for more than twelve months. She was following her supervisor’s instruction and was moved from the applicant’s supervision. She wrote a letter because she was the only one moved. She did not say that she no longer wanted to be supervised by her.
32. The situation is not good at school because there are a lot of stakeholders who were not happy that she was the cause for the applicant to be dismissed. If the applicant goes back to the school she should not supervise her. If the applicant is back at the school she would request a transfer .
33. The applicant did not apologize to her.

Under cross-examination she stated that
34. The learner messed up on the Friday and was noticed on the Tuesday. On the day she did not use the toilet paper and flush it down the toilet. It was the condition it was in and she opted for the hosepipe. She poured ODB a chemical used to clean the toilet. She could not pick up the mess because of the chemical she used. She poured ODB before going to the applicant.
35. The incident happened during the COVID period and the breaks were different for the different grades. At the time the learners were going to use the toilet.
36. She poured the ODB to get rid of the smell. She was not present at the meeting with the applicant when they were told about the use of the hosepipe. She was not to use the hosepipe because the faeces go into the garden.
37. The applicant went to get the spade but the shed was locked and she could not get the spade. The applicant came back with the spoons and she used them to pick up the mess She did not object to using the spoons. She was asked to clean up and return the spoons to her.
38. The principal spoke to her on the same day


HAPPY NOMPUMELO MANANA
The salient aspects of her evidence are recorded below.
39. She is the skills instructor at the cleaning team at the school. She knows the applicant as the former DP. Ms Gugu Nxumalo waited for her at the parking lot. She said the applicant gave her two spoons to clean up the mess. They went to the physio-therapist to confirm the incident. Before she went to Ms Ndwandwe, Gugu told her she put the spoons in the drying rack and put cutex (nail polish) on it. She removed the spoons and put it in the cupboard and then went to Ms Manana who confirmed the incident.
40. She then went to the applicant and asked her about the incident. She asked her for the reason for giving Gugu the spoons. She knew she was angry and made a mistake and she told Gugu that she was sorry and she said it was fine.
41. When the staff found out about the incident, they were not happy.
42. She signed the petition to help the applicant to be returned to school.

Under cross examination she stated as follows:
43. She spoke to the applicant on the same day and she apologized in her office. She showed her the new spoons and apologized to her and Gugu.

THOBILE FORTUNATE NDWANDWE
The salient aspects of her evidence are recorded below.
44. She is the physio-therapist at the school and knows the applicant. She was her colleague and the DP at the school.
45. She knew about the instruction by the applicant to Gugu to pick up faeces using spoons. When she heard about it after 9 am she was busy.
46. Ms Manana was angry.
47. She is the PSA representative and Gugu went to her. On the next day she informed her union about the incident and was advised that the matter needs to be resolved at lower level. After a few days she went to the principal. The principal did not call her to discuss the matter.
48. They escalated the matter by lodging a formal grievance and she was present at the grievance hearing. After the incident everybody was upset for days.
49. She heard about the petition at school and does not have a problem working with the applicant again.

Under cross examination she stated as follows:
50. She was not present when the applicant apologized to Gugu.


Dr SYLVIA DOLLY SIBEKO
The salient aspects of her evidence are recorded below.
51. She is the Deputy Education Specialist. In 2021/2 she was the Circuit Manager and the school in question fell under her supervision.
52. She is aware of the incident as it was reported to her by the principal on the 7 April 2021. The incident happened on 23 March 2021. She did the investigation.
53. She found that the applicant asked Ms Gugu to pick up faeces using spoons and the applicant found nothing wrong with it. She did not hear if there was an apology tendered by the applicant.
54. The applicant confirmed that a learner messed the toilet and Ms Gugu asked to use the hosepipe. They could not use the spade because the shed was closed. The spoons were stainless steel and could be disinfected and could be re-used.
55. She interviewed Mrs Manana who was very angry and confronted Ms Girvin. The relationship between the DOE and staff was not happy.

Under cross examination she stated as follows:
56. She (applicant) used her powers over the cleaner. She would be happy if a spade was used. The shed was closed. The learners were going to use the toilet.
57. The spoons were not used again because the applicant replaced it on the same day.

JABU DUMISA
The salient aspects of her testimony are recorded below.
58. She is the Deputy director in Education and was the presiding officer in the case. She recorded the proceedings and took notes.
59. In her report she recorded the evidence presented and arrived at the finding. On a balance of probabilities the employer’s evidence was more probable. There was no evidence by the EFF or any political party.
60. She believes that her decision was reasonable. She considered the personal circumstances of the person charged and the Department would not condone the action. Her conduct was not acceptable.

Under cross examination she stated as follows:
61. She clearly understands her role in the hearing. She acted responsibly.
62. It is unreasonable to ask an employee to pick up faeces with a spoon. The institution is big and there is no evidence that there was no other tools and the hosepipe could have been used. The applicant decided to use the spoon.
63. The applicant had to direct how to clean up the mess.
64. She decided on dismissal rather than another less harsh sanction. She believes that dismissal was appropriate as the applicant was a DP and in a position of power. She gave an unlawful and illegitimate instruction to a cleaner to pick up faeces whilst she had options other than using a spoon. The school belongs to the community and these learners are to be taken care of.
65. The applicant asked a level 1 employee to use a spoon. Even if Ms Nxumalo did not complain the spoon was not going to be replaced. It was a human rights issue.
66. To use a spoon to clean faeces is unacceptable. The instruction was given before the faeces was picked up. The applicant bought new spoons.
67. This is an institution with disabled learners and they need extra care and not second hand treatment. It is a sensitive issue.
68. This incident tarnished the Department that they are not sensitive to learners with disabilities especially done by the DP and learners need to be protected. She did not take into account the relationship but took into account what the applicant did in the incident.

EVIDENCE ON BEHALF OF THE APPLICANT
APPLICANT’S CASE
TANYA GIRVIN
The salient aspects of her evidence are recorded below.
69. On the 23 March 2021 she interacted with Gugu Nxumalo. She was standing in for the principal.
70. Ms Nxumalo went to her at 08H30 and told her that a child had messed in the bathroom. She previously at a training session with Ms Nxumalo stated that it was not acceptable for a cleaner to wash faeces with the hose pipe. She came to her again and requested the hosepipe. She then went to the bathroom and Ms Nxumalo told her that she poured chemicals ODB over the faeces thus aggravating the situation.
71. She told Ms Nxumalo that she would go to find something to pick up the mess. Her first intention was to go to the shed to get a spade but it was locked and to fetch the key would take too long.
72. Then she walked to her office and near the Skills Training kitchen as she knew there were two spoons that were not used for dishing. Under the pressure to solve the problem quickly she decided to take the spoons and give it to Ms Nxumalo with the sole purpose to pick up the faeces.
73. When she gave Ms Nxumalo the spoons she did not react in a negative way and at the time she noted that she had to replace the spoons and ensure that they were kept outside the reach of the learner’s class.
74. She asked Ms Nxumalo after she finished using the spoons to clean them using ODB and return them to her. Her intention was to keep the spoons until Ms Manana returned and discuss the matter with her.
75. Somehow during the day, the spoons disappeared, and only at about 12H20 when Ms Manana came to her very upset about the spoons. Then she realised there was a problem.
76. At the time the principal came back and she immediately reported to her and that she sent someone to replace the spoons. She told the principal that she would apologize to Gugu because her feelings were hurt.
77. Her son returned with the replacement spoons from Game and she gave the spoons to Ms Manana and apologised to her and showed Ms Nxumalo the spoons and apologised to her. She then briefed the principal about how the matter was resolved on the same day.
78. After the incident they carried on working as usual. She became aware that this was an issue because the EFF were at the school about the spoons on the 7 April 2021, two weeks later.
79. Gugu did not inform her about her grievance. She did not believe her actions caused harm and was the only one available to her. She believes she took the correct decision.
80. Dismissal was an extremely harsh sanction. This was one isolated incident in a long career. This was her first misconduct and she had 16-years- experience in the Department.
81. The PSA representative did not approach her and she was not aware that the matter was reported to the PSA.

Under cross examination she stated as follows:
82. She had to make a judgement call and used the spoons. The principal managed the matter from her side.
83. In the disciplinary hearing she brought an expert witness to prove the spoons can be used again. The decision was made not to use them again.
84. She was angry and fighting for her reputation.

MARTHIE COMBRINCK
The salient aspects of her testimony are recorded below.
85. She was not at school when the incident took place but at a meeting. When she returned after 12H00 the applicant saw her and reported the incident.
86. She called Mrs Nxumalo but saw her the next day and she said she was ok and the applicant apologised to her and the spoons were replaced. She spoke to her on other occasions and asked her if she wanted to lodge a grievance. She was surprised when she heard of the grievance in November 2021 and a hearing.
87. Gugu did not indicate that she was unhappy with the applicant and she could come to her but she did not go to her.
88. When the EFF came to the school she was not sure how to handle the situation and contacted the CMC and his advice was it was an internal matter and not to meet with anybody.
89. She did not give Gugu permission to speak to the EFF.



ZANDILE MARIA MNGOMEZULU (ZANDILE)
The salient aspects of her evidence are recorded below.
90. She is employed at the school since 8 October 2010 as a cleaner and cleans toilets. When learners mess the toilet, they use gloves and clean the mess with toilet paper and then put it in the bins. She will not use the hose pipe to clean the mess because it is not allowed and the applicant told all cleaners about that. Gugu knows the rule because water is very expensive.
91. It does happen that one can use the fire extinguisher hose. She was at home when the incident happened.

WELCOME JABULANI MUSAWENKOSI DLAMINI
The salient aspects of his evidence are recorded below.
92. He and other staff decided to write a document and sent it to the Department. All members (employees) signed the document. They signed the document because they wanted the applicant back because of how she worked at the school. Nobody told them they would lose their job. They sent it to the school secretary and she sent it to the Department.

Under cross examination he stated as follows:
93. He compiled the petition as they were shocked because this was a once off incident.
94. The incident to remove faeces using a spoon was not right.

CLOSING ARGUMENTS
95. The parties submitted written closing arguments which were considered in arriving at my decision. The parties must be complimented for submitting comprehensive arguments.

ANALYSIS OF EVIDENCE AND ARGUMENT
96. This matter relates to the dismissal of the applicant for misconduct.
97. The applicant challenges the procedural and substantive aspects of her dismissal and believes that she was unfairly dismissed and prays for retrospective re-instatement.
98. The respondent contends that the dismissal was fair and prays for the matter to be dismissed.
100. The applicant was given an opportunity to present her version of the incident leading to her dismissal.
101. I have taken cognizance of the decision in Sweeney/ Transcash [2000] 6 BALR 712 (CCMA) where the commissioner held that arbitration hearings constitute a rehearing de novo on the merits. The award must accordingly be based on evidence led at the arbitration, not on the record of the disciplinary hearing. Further an arbitration is a new hearing which means that the evidence concerning the reason for the dismissal is heard afresh before the arbitrator. The arbitrator must determine whether the dismissal is fair in the light of the evidence admitted at the arbitration.
102. The arbitrator is not merely reviewing the evidence considered by the employer when it decided to dismiss but to determine whether the employer acted fairly. This does not prevent the arbitrator from referring to any enquiry record in so far as it is admitted as evidence in the arbitration
103 The Code of Good Practice: Dismissal promotes progressive discipline, it distinguishes between single acts of misconduct that may justify the sanction of dismissal and those that may do so cumulatively. The Code identifies gross dishonesty, willful damage to property, endangering the safety of others, assault and gross insubordination as examples of what may constitute serious misconduct that may justify dismissal as a result of a single contravention
104. In this matter it is clear from the submissions submitted by the parties that the following may be reasonably gleaned. The applicant was given a notice to attend a disciplinary hearing, and was found guilty after a hearing and received her letter of dismissal. She challenges the procedural and substantive aspects of the dismissal. In terms of the guidance provided in the Avril Elizabeth Home for the Mentally Handicapped v CCMA as per A van Niekerk AJ the following is of importance:
Where there is no established procedure in the work place the standard required is the one referred to in the Code. This requires no more than the following:
(a) The conduct of an investigation;
(b) Notification to the employee of any allegations that may flow from that investigation; and
(c) An opportunity, within a reasonable time, to prepare a response to the employer’s allegations with the assistance of a trade union representative or fellow employee; and
(d) Communication of the decision taken including the reason for the dismissal; and
(e) A reminder of rights to refer a dispute to the CCMA or to a bargaining council or to dispute resolution procedures established in terms of a collective agreement.
In deciding whether a procedure was fair commissioners should not adopt an overly technical approach and should bear in mind that the purpose of the recommended procedure is to provide an opportunity for dialogue and reflection regarding whether a fair reason for dismissal or some other sanction exists.
105. In respect of the charges, the applicant was found guilty and dismissed. The Courts have held that “As long as the factual allegations made in the charge sheet or part of it, are proved, and as long as those factual allegations that are proved, constitute some form of misconduct in the workplace, the employee may be convicted of misconduct. (Woolworths v CCMA (LAC) 2011;NUM v CCMA (LC) 2011;FNB v CCMA (LC) 2010.
106 As a consequence of the above I believe that the procedural aspect of the dismissal to be fair as the presiding officer handed down a decision of dismissal.
107. The applicant was charged with an act of misconduct and was subjected to a disciplinary hearing.
108. The question arises whether the above-mentioned infractions/ misconduct if are such that it warrants dismissal.
109. Although it is the prerogative of the employer to set standards that the employee is expected to render service it must do so in keeping with the guiding principles of the LRA.

THE RELEVANT LEGAL PRINCIPLES
110. It is trite law that the courts will only interfere with the employer’s decision if it is grossly unreasonable.
111. Prior to the Constitutional Court’s decision in the Sidumo- case the CCMA applied the “reasonable employer” test to determine whether a specific sanction, issued by an employer, was fair. The “reasonable employer” test provided to employers a lot of flexibility to dismiss employees for misconduct, as employer’s decision to dismiss were “protected” from scrutiny by the CCMA based on the Nampak and Country Fair Foods cases.
112. The Constitutional Court replaced the “reasonable employer”-test, which required a measure of deference to the decision of the employer, with that of the “reasonable decision maker”-test, which required an answer to the following question:
Is the decision reached by the commissioner one that a reasonable decision-maker could reach?
The CCMA will thus no longer merely approve the decision taken by employers. The Sidumo-case further warns employers and chairpersons about the dangers of adopting a strict, narrow approach to imposing the sanction of dismissal.
113. It is indeed the employer’s prerogative to set the rules applicable to his/her workplace according to its operational requirements.
114. Employers must remember, as was highlighted in the Sebotha- case, that the role of chairpersons is to ensure fairness, and not to merely approve the decision of the employer. Even though some chairpersons might be full-time employees of the employer, such persons are required to act as an impartial body when chairing a disciplinary hearing.
115. Van Niekerk AJ in the Avril Elizabeth Home- case was very critical about the “criminal justice” model of disciplinary proceedings and stated that the LRA recognized that “workplace efficiencies should not be unduly impeded by onerous procedural requirements.

APPLICATION OF THE LAW TO THE FACTS
116. The applicant issued the instruction for Ms Nxumalo to use the spoons to pick up the faeces. She went and found the spoons that she gave to the cleaner.
117. There was a need to remove the mess from the bathroom because the learners were due to use the bathroom.
118. The question is whether there were other options to remove the mess. The applicant’s witness agreed that the use of the spoons to remove the mess was wrong.
119. The applicant conceded that the person who had the keys to the shed was in the grounds. Therefore, a more diligent effort could have sourced the keys and the spade used to remove the mess. Further as the cleaner had poured OBD on the mess and the fact that the mess was in the bathroom for four days another option (house-pipe) could have been used.
120. It is not normal practice to pick up mess using spoons.
121. The fact that the spoons were replaced does not detract from the unreasonableness of the instruction and the impact it had on the school community.
122. The chairperson considered the evidence led and came to the conclusion that the applicant was guilty as charged. Thereafter she considered the applicable sanctions according to the Employment of Educator’s Act and pronounced a sanction of dismissal. The sanction is within the guidelines.
123. I see no reason to interfere with the findings and sanction of the presiding officer.
124. The finding and sanction are hereby confirmed.
125. The applicant is dismissed and not entitled to any relief.

AWARD
126. The application is dismissed

DATED AT DURBAN ON THIS 25 DAY OF OCTOBER 2023.


A S DORASAMY (ARBITRATOR)