ELRC 199-20/21
ELRC 199-20/21
Award Date:
20 January 2021
Case Number: ELRC 199-20/21
Province: Gauteng
Applicant: SADTU obo Mbatha Patrick Sikhumbuzo Mandla
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Misconduct
Venue: Virtually
Award Date: 20 January 2021
Arbitrator: Kuvonakala Pretty Chavalala
Panelist/s: Kuvonakala Pretty Chavalala
Case No.: ELRC 199-20/21
Date of Award: 20 January 2021
In the ARBITRATION between:
SADTU obo Mbatha Patrick Sikhumbuzo Mandla
(Union / Applicant)
and
Department of Education Gauteng
(Respondent)
Union/Applicant’s representative: Mr. Zali
Email: patmbatha70@gmail.com
Respondent’s representative: Mr. Tsebe
Email: John.Mahange@gauteng.gov.za
DETAILS OF HEARING AND REPRESENTATION
[1] This is the arbitration award between SADTU obo Mbatha Patrick Sikhumbuzo Mandla (hereinafter referred to as “the applicant”) and Department of Education Gauteng (hereinafter referred to as “the respondent”). The hearing concerned an alleged unfair dismissal dispute. The hearing was conducted via zoom. It sat on the 16 November 2020 and 08 December 2020.
[2] The applicant was represented by Mr Zali from SADTU. The respondent was represented by Mr Tsebe from the department of education.
[3] The respondent submitted 3 bundles of documents which were marked Bundle1, 2 and 3. The applicant did not submit any bundle.
[4] The parties could not immediately submit their closing arguments and requested time to submit. I granted the request and allowed parties to submit written arguments on or before 15 December 2020. On 15 December 2020, I had received both parties’ closing arguments.
[5] The hearing was held in English and it was digitally and manually recorded.
ISSUES TO BE DECIDED
[6] I am required to decide whether the dismissal of the applicant was procedurally and substantively fair and, if not, the appropriate remedy.
BACKGROUND TO THE ISSUES TO BE DECIDED
[7] The applicant was employed by the respondent effective from 01 February 1994. He was holding a position of a Deputy Chief education specialist with persal number 16898141. He was dismissed on 24 March 2020. He lodged the dispute with the ELRC with an application for condonation which was granted.
[8] The applicant was charged with 1 count of misconduct and another one in the alternative, he pleaded not guilty to the charge and its alternative. The charges were formulated as follows: -
1. Allegation 1- it is alleged that, on or about 14 September 2018, you repeatedly assaulted Ms Lerato Makhetha with the intention to cause grievous bodily harm by beating her until she fell, and you continued to beat and kick her. Mr Prichard Ngomane tried to push you away from assaulting Ms Lerato Makhetha you were aggressive and continued to beat her until Ms Elizabeth Mogari came to assist Mr Prichard Ngomane to push you away from assaulting her. In view of the above allegation, you are thus charged in terms of Section 17 (1 ) (d) of the Employment of Educators Act 76 of 1998 as amended
2. Alternative to allegation 1- it is alleged that, on or about 14 September 2018, while on duty, you assaulted Ms Lerato Makheta. In view of the above allegation, you are thus charged in terms of Section 18 (1) (r) of the Employment of Educators Act 76 of 1998 as amended.
[9] The following were common cause issues: -
a) Date of employment, position and the date of dismissal.
b) The chairperson recommended the sanction of dismissal in May 2019. The applicant lodged an appeal in June 2019 and the applicant received an appeal outcome in March 2020.
c) Applicant was given a notice to attend disciplinary hearing. The charges were clear, his rights were explained, he was given time to prepare his case, he was given a chance to question witnesses that were called and he was advised of the outcome of the disciplinary hearing.
d) The applicant was at work on 14 September 2018.
e) The applicant assaulted Ms Lerato Makhetha on 14 September 2018. Ms Lerato Makheta was the applicant’s colleague.
f) During the assault, Mr Prichard Ngomane tried to move the applicant away.
g) Ms Lerato Makhetha was charged under section 18 of the of the Employment of Educators Act 76 of 1998 as amended.
h) The same chairperson that presided over Ms Makhetha’s internal disciplinary hearing was the same one that presided over the applicant’s internal disciplinary hearing.
i) Ms Makhetha pleaded guilty at her internal disciplinary hearing and by virtue of her plea, the chairperson never listened to the merits of her case.
j) The applicant pleaded not guilty on both allegations.
k) Section 17 of the Employment of Educators Act 76 of 1998 as amended is to the effect that offences under that section lead to mandatory dismissal if found guilty.
[10] The following were issues in dispute:
a) Applicant disputed procedure followed on the basis that one chairperson dealt with the internal disciplinary processes involving both employees.
b) Applicant denied that Ms Mogari went to assist during the assault.
c) The intention to cause grievous bodily harm was placed in dispute.
d) How assault happened was placed in dispute
e) Sanction of dismissal was placed in dispute.
[11] The applicant sought retrospective reinstatement as a relief.
SUMMARY OF THE PARTIES’ EVIDENCE AND ARGUMENT
This section only records the summary of the evidence that was tendered and not the verbatim testimony of the parties.
Respondent’s case
The respondent called four witnesses who testified as follows:
First witness: Prichard Ngomane who testified under oath and the summary is as follows:
[12] He is employed by the respondent and he was at work on 14 September 2018 at senior phase unit. A meeting had been called that morning by the Union telling employees to evacuate the building. He and his colleagues were still drinking tea in the office. The applicant went to the office towards Lerato Makhetha and he was shouting. Lerato Makhetha was busy making tea. The applicant looked angry and demanded his phones from Lerato Makhetha. Lerato Makhetha told him that she wants her money first. The applicant pushed cups from the table, they fell and spilt the tea. He started hitting the applicant. He used his bare hands to hit the applicant. He could not confirm if the hands were open or closed. Lerato Makhetha fell to the ground and the applicant bent down hitting and shouting at her. Ms Mogari was at the desk. When he saw the applicant continuing hitting the applicant, he moved from his desk to restrain him. Ms Mogari also went to assist
[13] Lerato Makhetha earlier went in to the office and said that she has the applicant’s phones so he did expect that at some stage the applicant would come looking for his phones.
[14] He cannot say how badly injured Lerato Makhetha was because he did not examine her but her wig was on the floor.
Second witness: Elizabeth Galeboe Mogari testified under oath and the summary of which is as follows:
[15] She is employed by the respondent and was at work on 14 September 2018. She witnessed the assault on Ms Lerato Makhetha. The applicant was aggressive even after Mr Ngomane had separated them so she also went to assist.
[16] There was a trip to Gopane that was arranged and Ms Makhetha was responsible for arranging the accommodation. Ms Makhetha arranged the accommodation and she, the witness, paid her the money to her. There were 4 people that still owed Lerato Makhetha including the applicant.
[17] Lerato Makhetha reported to all of them at the office that she took the applicant’s phones because he owed her. The office is an open plan so she was telling everybody that was in the office.
Third Witness: Ms Lerato Claudette Makhetha testified under oath and the summary of which is as follows:
[18] She indeed took the cell phones belonging to the applicant from his office. She went in and told him she wants her money and the applicant just ignored her and left the office. That is when she saw the phones on the table and took them. She told other people that she had taken the phones because she had no intention of stealing the phones. The applicant sent Boipelo to get the phones from her but she told Boipelo that she wants her money first. The applicant then budged in to their office towards her. He demanded the phones then pushed the teacups from the table. He started punching her and pulled her wig off which was very humiliating since she does not have hair on her head. He hit her with fists, pushed her and she fell on the floor. He continued punching and kicking her and her panty was exposed and people were screaming. She ran out of the room without her wig after Mr Ngomane had restrained the applicant.
[19] She was later charged as appears on page 73 of Bundle 3 for taking the applicant’s phones; she pleaded guilty and was suspended for one month without pay. The applicant was charged for assault.
[20] Her colleagues had tasked her with the duty of arranging and paying for accommodation at Gopane and they would re-imburse her. The applicant and three other colleagues did not pay her. Others agreed that they would pay her but the applicant just ignored her. She took the phones in order to use them as a bargaining tool. On hind sight, she regrets taking his phones. Even if he felt undermined, he had no right to assault her. She confirmed her statement to the police as appears on page 26 of bundle 2 specifically paragraph 5 which she read for the record.
Fourth Witness: Makgoba Martin Matlou testified under oath and the summary of which is as follows:
[21] He was the presiding officer in both the internal hearing of Ms Makhetha and the applicant.
[22] He fails to understand how he could have been conflicted in dealing with both cases because the employees were charged with different charges. Further, the case of Ms Makhetha was not ventilated because she pleaded guilty. He made a decision based on the merits of each of the two cases. He dealt with Ms Makhetha’s case first and later with the applicants. No issues were raised by the applicant regarding his presiding over his case. Even if such was raised, he doubts he would have been persuaded to recuse himself.
[23] He conceded that a good chairperson has to be impartial with a high level of objectivity. He did receive mitigation and aggravation and although some information will be provided, it is not a lot of information as the intention is to ask for leniency and not to submit closing arguments.
[24] He became aware of the fact that the cases are related when he sat for the applicant’s case, the second hearing. He became aware only when witnesses were called. He did not have to recuse himself because he knew he had to make a determination based on merits of the case.
THE APPLICANT’S CASE
The applicant, Patrick Sikhumbuzo Mandla Mbatha testified under oath and the summary of which is as follows:
[25] Prior to 14 September 2018, at the function at Ko-Gopane while sitting with his colleagues, Ms Makhetha joined them and conversed with them. She asked him how he was unable to pay her the R175 while he lives in a big house alone with no wife, no kids, a doctor driving a big car and earning a big salary. He was not indebted to Ms Makhetha because he arranged his own transport logistics.
[26] The applicant trespassed and stole his phones on 14 September 2019. He sent Boipelo twice to get his phones back but Ms Makhetha did not budge. He then approached the applicant himself and that is when a scuffle broke out. She took one cup of boiling water and threw it towards him so he pushed it and it fell. Manhandling broke out between them.
[27] He was first humiliated and harassed by Ms Makhetha at Gopane but he turned a blind eye. He thought it was a joke. He then saw the humiliation and harassment during the week of 8 to 14 September 2018 when she kept telling him that he owes her. He ignored her because he thought she would get tired of pestering him. She took his phones which he had left at the table. The reason for the manhandling was to retrieve his phones. He did not know if she had them on her person.
[28] The applicant was wearing black pants since it was casual day.
[29] There was pulling and pushing and both of them ended up being floored. He went to labour with the intention to report but there was no one at the unit. He called his Union who tried to intervene.
[30] It was put to him that he failed to put most of his versions to the respondent’s witnesses and he insisted that he did. He stated that he did not tell the applicant at Ko-Gopane that he found her comments regarding his big house, car and none marriage to be offensive. He does not recall using fists to hit Ms Makhetha, all he can say is that there was a scuffle and they both fell to the ground.
Second witness: Boipelo Hazel Moeti testified under oath and the summary of which is as follows:
[31] On 14 September 2020 she was an administration intern at the respondent based at the intermediate phase office. The applicant went to the office to put milk in the fridge. Few minutes later he returned to ask if she had seen his phones and she told him she had not.
[32] He later called her to his office and asked her to go get his phones from Ms Makhetha. She went to Ms Makheta and Ms Makhetha told her that she has the phones and she would not give them until the applicant paid her first. She gave the message and the applicant went to her by himself. She did not go with him but went to the intermediate phase office.
ANALYSIS OF EVIDENCE AND ARGUMENT
[33] In terms of section 192(1) of the Act, the employee bears the onus to prove the existence of dismissal. The existence of dismissal was placed out of issue due to the fact that the respondent confirmed that the applicant was dismissed.
[34] In terms of section 192(2) of the Act, if the existence of the dismissal is established, the onus rests on the employer to prove that the dismissal is fair. In terms of section 188 of the Act, a dismissal is unfair if the employer fails to prove that the reason for dismissal is a fair reason related to the employee's conduct or capacity.
[35] The procedure followed for the dismissal was challenged on the basis that one chairperson presided over the disciplinary hearings of both Ms Makhetha and the applicant. It was not disputed that the two employees faced two different charges. Ms Makhetha; whose hearing was conducted first was charged with possessing the applicant’s phones without permission. The second hearing was that of the applicant when he faced the charges that lead to his now dismissal. Ms Makhetha pleaded guilty to the charges and as a result no witnesses were called. The applicant’s case was heard with witnesses giving evidence. Although I accepted that it would have presented a perception of bias if both cases had fully been heard by one chairperson at that short space of time; I find that this case itself is different. The formulation of the charges and the lack of evidence submission at Ms Makhetha’s case reasonably could prevent the presiding officer from making the nexus between the two cases. The applicant only assumed the chairperson had intrinsic details of the applicant’s case before hearing it. No form of proof was submitted that the chairperson knew the substantial merits of the case. The chairperson denied this allegation and stated that he only realised when the witnesses were being called that the cases are related. The argument by the applicant to remit the case for hearing anew the disciplinary cease cannot stand. Even if I were to accept that the chairperson knew the intrinsic details of the case, the arbitration hearing itself being a de novo hearing, would have cured that defect. My finding however is that it was not procedurally unfair for the chairperson to have heard both cases. I find that the dismissal was not procedurally unfair.
[36] I now address the question of substance.
[37] In terms of Schedule 8 of the Code, anyone determining the substantive fairness of a dismissal must determine: -
(a) Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the work-place; and
(b) If a rule or standard was contravened, whether or not—
(i) The rule was a valid or reasonable rule or standard;
(ii) The employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
(iii) The rule or standard has been consistently applied by the employer; and
(iv) dismissal with an appropriate sanction for the contravention of the rule or standard.
[38] There was no question about the knowledge if the rules. It was common cause that the applicant was aware of the rules in relation to the charge that was levelled against him.
[39] The next question that arises is whether the applicant breached the rules. The applicant admitted to have assaulted Ms Lerato Makhetha. He proffered two main points in justification. Firstly, he denied the intent to do grievous bodily harm. Secondly, the applicant submitted that he was provoked by Ms Makhetha.
[40] I will first address the question of intent to do grievous bodily harm. The distinction with regard to where it was common assault (section 18) or one with intention to do grievous bodily harm (section 17) becomes relevant in the education industry. This is so because the Employment of Educators Act 76 of 1998 as amended imposes a mandatory dismissal for the latter.
[41] The applicant was charged in terms of Section 17 (1 ) (d) of the Employment of Educators Act 76 of 1998 as amended which provides that an educator must be dismissed if he or she is found guilty of seriously assaulting, with the intention to cause grievous bodily harm to, a learner, student or other employee. In the alternative, he was charged in terms of Section 18 (1 ) (r) of the Employment of Educators Act 76 of 1998 as amended which provides that misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she assaults, or attempts to or threatens to assault, another employee or another person.
[42] One of the elements of the offence of assault with intent to do grievous bodily harm is proof of ‘intent.’ Jonathan Burchell in Principles of Criminal Law says the following in the discussion of this element of the offence of assault with intent to do grievous bodily harm:
“It is not necessary that X should actually cause grievous bodily harm: It is enough that he intends to cause it, for the crime is not ‘causing grievous bodily harm’. If X intends a grievous injury, but causes a slight injury or none at all, he may nevertheless be guilty of assault with intent to do grievous bodily harm. Conversely, of course, if X inflicts a serious injury without intending to cause grievous body harm, this crime is not committed”
[43] In order to secure a guilty verdict on a charge of assault with intent to cause grievous bodily harm initiator must, inter alia, prove that the accused employee intended to cause grievous bodily harm. As indicated above it is enough that such harm is intended even if it was not achieved.
[44] In order to prove intent, one must consider the guideline factors which provide a guide to the accused employee’s state of mind. These factors are not exhaustive, each case will have to be considered on its own merit. They are, first, the nature of the weapon or instrument used; secondly, the degree of force used by the accused in wielding that instrument or weapon; thirdly, the situation on the body where the assault was directed and fourthly the injuries actually sustained by the victim of the assault.
[45] It is common cause that no weapon was used in this case. The applicant was non-committal on how the assault happened, all he stated was that there was a scuffle and both him and Ms Makhetha fell. The version of the applicant falling was never even put to any of the respondent’s witnesses during their cross examination and is thus not probable. The witnesses of the respondent stated that the applicant used his bare hands. Ms Lerato Makhetha stated that the applicant hit her with fists , pushed her and she fell. He continued hitting her while on the ground until he was restrained by Mr Ngomane. Ms Mogari testified that even after Mr Ngomane had restrained the applicant, he was still aggressive and she also went to assist Mr Ngomane in restraining him. This was also not denied by the applicant during cross examination. No evidence was submitted regarding the injuries sustained by Ms Makhetha.
[46] It is trite that the labour disputes are decided on balance of probabilities and not beyond all doubt. It is my considered view that the probabilities favour the respondent. This is so because of the fact that I accept the version of the respondent that the applicant pushed Ms Makhetha and she fell, he continued hitting her even when she was on the ground. He had to be restrained by Mr Ngomane and that did not fully stop him and Ms Mogari has to assist in restraining him. I accept that on balance pf probabilities that these actions of the applicant indicated a person with the intent to cause grievous bodily harm.
[47] The applicant submitted that Ms Makheta harassed him. Firstly, at the function at Gopane when she asked about why he was not paying her while he has no wife, a big house, car and salary. Secondly, she kept telling him during the week of 8 to14 September 2018 to pay her while he did not owe her. He ignored her hoping that she was going to back off. I will not even assess whether or not the applicant’s conduct did in fact amount to harassment. But even if I were to accept that it did, I do not see how and why the allegation of harassment was even raised by the applicant. Previous harassment is not one of the legal justifications for a wrongful action or assault.
[48] I now address the second defence of provocation. He submitted that Ms Mkhetha provoked him by taking his phones. The question that arises is whether or not the taking of the applicant’s phones ameliorate the assault. In other words, could it be said that Lerato Makhetha had provoked the applicant?
[49] In law, provocation is when a person is considered to have committed a wrongful act partly because of a preceding set of events that might cause a reasonable person to lose self-control. This makes them less morally culpable than if the act was premeditated and done out of pure malice. A material feature of provocation as a mitigating factor is the immediacy of the wrongdoer’s reaction to the victim’s provocative act. The wrongdoer must have immediately and in the heat of the moment resorted to violent conduct. A delayed act of premeditated retribution is the complete opposite of momentary loss of or reduced self-control which carries the stamp of provocation.
[50] The applicant knew that Ms Makhetha had the phones and he sent Boipelo to go get them and the Ms Makhetha refused. He then went there himself and started assaulting the applicant. This was not a heat of a moment action. The applicant after becoming aware of the fact that Ms Lerato Makhetha had the phones went straight to her and assaulted her. The was no immediacy to his reaction, he could have stayed away from the whole incident. It is thus my finding that the incident did not amount to provocation in its legal definition.
[51] It is my finding that the respondent has proved on balance of probabilities that the applicant is guilty of allegation 1 as charged.
[52] I now turn to the question of sanction.
[53] Schedule 8, Code of Good Practice: Dismissals, item 4 and 5 provides a follows:-
(4) Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination. Whatever the merits of the case for dismissal might be, a dismissal will not be fair if it does not meet the requirements of section 188.
(5) When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee’s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself
[54] Considering the mitigation, the applicant has worked for the respondent for 26 years. It is noteworthy to state that the commission of a serious misconduct tilts the scales to an extent that even the strongest mitigating factors, like long service and a clean record of discipline are likely to have a minimal impact on the sanction to be imposed. It should be noted that the applicant was charged and found guilty under section 17 of the Employment of Educators Act 76 of 1998 as amended. This provides for a mandatory dismissal for offences that are listed therein.
[55] The applicant argued that evidence on breakdown of trust relationship was not lead and the respondent’s case must also fall on that. I do not concede with this argument. This is because where it is apparent from the nature of the misconduct that the trust relationship has been irreparably broken down it is not necessary to lead evidence to prove the breakdown. I am guided in this regard by the case of Autozone v DRC of Motor Industry and Others (2019) 40 ILJ 101 LAC). Further, dismissal is mandatory in terms of the relevant legislation under the circumstances
[56] Considering all these issues, it is my finding that the dismissal is a fair sanction under the circumstances.
Award
[1] The applicant’s dismissal was procedurally and substantively fair.
[2] The case against the respondent is dismissed.
[3] I make no order as to costs
Dated on the 20 day of January 2021
Kuvonakala Chavalala
ELRC Panelist
Province: Gauteng
Applicant: SADTU obo Mbatha Patrick Sikhumbuzo Mandla
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Misconduct
Venue: Virtually
Award Date: 20 January 2021
Arbitrator: Kuvonakala Pretty Chavalala
Panelist/s: Kuvonakala Pretty Chavalala
Case No.: ELRC 199-20/21
Date of Award: 20 January 2021
In the ARBITRATION between:
SADTU obo Mbatha Patrick Sikhumbuzo Mandla
(Union / Applicant)
and
Department of Education Gauteng
(Respondent)
Union/Applicant’s representative: Mr. Zali
Email: patmbatha70@gmail.com
Respondent’s representative: Mr. Tsebe
Email: John.Mahange@gauteng.gov.za
DETAILS OF HEARING AND REPRESENTATION
[1] This is the arbitration award between SADTU obo Mbatha Patrick Sikhumbuzo Mandla (hereinafter referred to as “the applicant”) and Department of Education Gauteng (hereinafter referred to as “the respondent”). The hearing concerned an alleged unfair dismissal dispute. The hearing was conducted via zoom. It sat on the 16 November 2020 and 08 December 2020.
[2] The applicant was represented by Mr Zali from SADTU. The respondent was represented by Mr Tsebe from the department of education.
[3] The respondent submitted 3 bundles of documents which were marked Bundle1, 2 and 3. The applicant did not submit any bundle.
[4] The parties could not immediately submit their closing arguments and requested time to submit. I granted the request and allowed parties to submit written arguments on or before 15 December 2020. On 15 December 2020, I had received both parties’ closing arguments.
[5] The hearing was held in English and it was digitally and manually recorded.
ISSUES TO BE DECIDED
[6] I am required to decide whether the dismissal of the applicant was procedurally and substantively fair and, if not, the appropriate remedy.
BACKGROUND TO THE ISSUES TO BE DECIDED
[7] The applicant was employed by the respondent effective from 01 February 1994. He was holding a position of a Deputy Chief education specialist with persal number 16898141. He was dismissed on 24 March 2020. He lodged the dispute with the ELRC with an application for condonation which was granted.
[8] The applicant was charged with 1 count of misconduct and another one in the alternative, he pleaded not guilty to the charge and its alternative. The charges were formulated as follows: -
1. Allegation 1- it is alleged that, on or about 14 September 2018, you repeatedly assaulted Ms Lerato Makhetha with the intention to cause grievous bodily harm by beating her until she fell, and you continued to beat and kick her. Mr Prichard Ngomane tried to push you away from assaulting Ms Lerato Makhetha you were aggressive and continued to beat her until Ms Elizabeth Mogari came to assist Mr Prichard Ngomane to push you away from assaulting her. In view of the above allegation, you are thus charged in terms of Section 17 (1 ) (d) of the Employment of Educators Act 76 of 1998 as amended
2. Alternative to allegation 1- it is alleged that, on or about 14 September 2018, while on duty, you assaulted Ms Lerato Makheta. In view of the above allegation, you are thus charged in terms of Section 18 (1) (r) of the Employment of Educators Act 76 of 1998 as amended.
[9] The following were common cause issues: -
a) Date of employment, position and the date of dismissal.
b) The chairperson recommended the sanction of dismissal in May 2019. The applicant lodged an appeal in June 2019 and the applicant received an appeal outcome in March 2020.
c) Applicant was given a notice to attend disciplinary hearing. The charges were clear, his rights were explained, he was given time to prepare his case, he was given a chance to question witnesses that were called and he was advised of the outcome of the disciplinary hearing.
d) The applicant was at work on 14 September 2018.
e) The applicant assaulted Ms Lerato Makhetha on 14 September 2018. Ms Lerato Makheta was the applicant’s colleague.
f) During the assault, Mr Prichard Ngomane tried to move the applicant away.
g) Ms Lerato Makhetha was charged under section 18 of the of the Employment of Educators Act 76 of 1998 as amended.
h) The same chairperson that presided over Ms Makhetha’s internal disciplinary hearing was the same one that presided over the applicant’s internal disciplinary hearing.
i) Ms Makhetha pleaded guilty at her internal disciplinary hearing and by virtue of her plea, the chairperson never listened to the merits of her case.
j) The applicant pleaded not guilty on both allegations.
k) Section 17 of the Employment of Educators Act 76 of 1998 as amended is to the effect that offences under that section lead to mandatory dismissal if found guilty.
[10] The following were issues in dispute:
a) Applicant disputed procedure followed on the basis that one chairperson dealt with the internal disciplinary processes involving both employees.
b) Applicant denied that Ms Mogari went to assist during the assault.
c) The intention to cause grievous bodily harm was placed in dispute.
d) How assault happened was placed in dispute
e) Sanction of dismissal was placed in dispute.
[11] The applicant sought retrospective reinstatement as a relief.
SUMMARY OF THE PARTIES’ EVIDENCE AND ARGUMENT
This section only records the summary of the evidence that was tendered and not the verbatim testimony of the parties.
Respondent’s case
The respondent called four witnesses who testified as follows:
First witness: Prichard Ngomane who testified under oath and the summary is as follows:
[12] He is employed by the respondent and he was at work on 14 September 2018 at senior phase unit. A meeting had been called that morning by the Union telling employees to evacuate the building. He and his colleagues were still drinking tea in the office. The applicant went to the office towards Lerato Makhetha and he was shouting. Lerato Makhetha was busy making tea. The applicant looked angry and demanded his phones from Lerato Makhetha. Lerato Makhetha told him that she wants her money first. The applicant pushed cups from the table, they fell and spilt the tea. He started hitting the applicant. He used his bare hands to hit the applicant. He could not confirm if the hands were open or closed. Lerato Makhetha fell to the ground and the applicant bent down hitting and shouting at her. Ms Mogari was at the desk. When he saw the applicant continuing hitting the applicant, he moved from his desk to restrain him. Ms Mogari also went to assist
[13] Lerato Makhetha earlier went in to the office and said that she has the applicant’s phones so he did expect that at some stage the applicant would come looking for his phones.
[14] He cannot say how badly injured Lerato Makhetha was because he did not examine her but her wig was on the floor.
Second witness: Elizabeth Galeboe Mogari testified under oath and the summary of which is as follows:
[15] She is employed by the respondent and was at work on 14 September 2018. She witnessed the assault on Ms Lerato Makhetha. The applicant was aggressive even after Mr Ngomane had separated them so she also went to assist.
[16] There was a trip to Gopane that was arranged and Ms Makhetha was responsible for arranging the accommodation. Ms Makhetha arranged the accommodation and she, the witness, paid her the money to her. There were 4 people that still owed Lerato Makhetha including the applicant.
[17] Lerato Makhetha reported to all of them at the office that she took the applicant’s phones because he owed her. The office is an open plan so she was telling everybody that was in the office.
Third Witness: Ms Lerato Claudette Makhetha testified under oath and the summary of which is as follows:
[18] She indeed took the cell phones belonging to the applicant from his office. She went in and told him she wants her money and the applicant just ignored her and left the office. That is when she saw the phones on the table and took them. She told other people that she had taken the phones because she had no intention of stealing the phones. The applicant sent Boipelo to get the phones from her but she told Boipelo that she wants her money first. The applicant then budged in to their office towards her. He demanded the phones then pushed the teacups from the table. He started punching her and pulled her wig off which was very humiliating since she does not have hair on her head. He hit her with fists, pushed her and she fell on the floor. He continued punching and kicking her and her panty was exposed and people were screaming. She ran out of the room without her wig after Mr Ngomane had restrained the applicant.
[19] She was later charged as appears on page 73 of Bundle 3 for taking the applicant’s phones; she pleaded guilty and was suspended for one month without pay. The applicant was charged for assault.
[20] Her colleagues had tasked her with the duty of arranging and paying for accommodation at Gopane and they would re-imburse her. The applicant and three other colleagues did not pay her. Others agreed that they would pay her but the applicant just ignored her. She took the phones in order to use them as a bargaining tool. On hind sight, she regrets taking his phones. Even if he felt undermined, he had no right to assault her. She confirmed her statement to the police as appears on page 26 of bundle 2 specifically paragraph 5 which she read for the record.
Fourth Witness: Makgoba Martin Matlou testified under oath and the summary of which is as follows:
[21] He was the presiding officer in both the internal hearing of Ms Makhetha and the applicant.
[22] He fails to understand how he could have been conflicted in dealing with both cases because the employees were charged with different charges. Further, the case of Ms Makhetha was not ventilated because she pleaded guilty. He made a decision based on the merits of each of the two cases. He dealt with Ms Makhetha’s case first and later with the applicants. No issues were raised by the applicant regarding his presiding over his case. Even if such was raised, he doubts he would have been persuaded to recuse himself.
[23] He conceded that a good chairperson has to be impartial with a high level of objectivity. He did receive mitigation and aggravation and although some information will be provided, it is not a lot of information as the intention is to ask for leniency and not to submit closing arguments.
[24] He became aware of the fact that the cases are related when he sat for the applicant’s case, the second hearing. He became aware only when witnesses were called. He did not have to recuse himself because he knew he had to make a determination based on merits of the case.
THE APPLICANT’S CASE
The applicant, Patrick Sikhumbuzo Mandla Mbatha testified under oath and the summary of which is as follows:
[25] Prior to 14 September 2018, at the function at Ko-Gopane while sitting with his colleagues, Ms Makhetha joined them and conversed with them. She asked him how he was unable to pay her the R175 while he lives in a big house alone with no wife, no kids, a doctor driving a big car and earning a big salary. He was not indebted to Ms Makhetha because he arranged his own transport logistics.
[26] The applicant trespassed and stole his phones on 14 September 2019. He sent Boipelo twice to get his phones back but Ms Makhetha did not budge. He then approached the applicant himself and that is when a scuffle broke out. She took one cup of boiling water and threw it towards him so he pushed it and it fell. Manhandling broke out between them.
[27] He was first humiliated and harassed by Ms Makhetha at Gopane but he turned a blind eye. He thought it was a joke. He then saw the humiliation and harassment during the week of 8 to 14 September 2018 when she kept telling him that he owes her. He ignored her because he thought she would get tired of pestering him. She took his phones which he had left at the table. The reason for the manhandling was to retrieve his phones. He did not know if she had them on her person.
[28] The applicant was wearing black pants since it was casual day.
[29] There was pulling and pushing and both of them ended up being floored. He went to labour with the intention to report but there was no one at the unit. He called his Union who tried to intervene.
[30] It was put to him that he failed to put most of his versions to the respondent’s witnesses and he insisted that he did. He stated that he did not tell the applicant at Ko-Gopane that he found her comments regarding his big house, car and none marriage to be offensive. He does not recall using fists to hit Ms Makhetha, all he can say is that there was a scuffle and they both fell to the ground.
Second witness: Boipelo Hazel Moeti testified under oath and the summary of which is as follows:
[31] On 14 September 2020 she was an administration intern at the respondent based at the intermediate phase office. The applicant went to the office to put milk in the fridge. Few minutes later he returned to ask if she had seen his phones and she told him she had not.
[32] He later called her to his office and asked her to go get his phones from Ms Makhetha. She went to Ms Makheta and Ms Makhetha told her that she has the phones and she would not give them until the applicant paid her first. She gave the message and the applicant went to her by himself. She did not go with him but went to the intermediate phase office.
ANALYSIS OF EVIDENCE AND ARGUMENT
[33] In terms of section 192(1) of the Act, the employee bears the onus to prove the existence of dismissal. The existence of dismissal was placed out of issue due to the fact that the respondent confirmed that the applicant was dismissed.
[34] In terms of section 192(2) of the Act, if the existence of the dismissal is established, the onus rests on the employer to prove that the dismissal is fair. In terms of section 188 of the Act, a dismissal is unfair if the employer fails to prove that the reason for dismissal is a fair reason related to the employee's conduct or capacity.
[35] The procedure followed for the dismissal was challenged on the basis that one chairperson presided over the disciplinary hearings of both Ms Makhetha and the applicant. It was not disputed that the two employees faced two different charges. Ms Makhetha; whose hearing was conducted first was charged with possessing the applicant’s phones without permission. The second hearing was that of the applicant when he faced the charges that lead to his now dismissal. Ms Makhetha pleaded guilty to the charges and as a result no witnesses were called. The applicant’s case was heard with witnesses giving evidence. Although I accepted that it would have presented a perception of bias if both cases had fully been heard by one chairperson at that short space of time; I find that this case itself is different. The formulation of the charges and the lack of evidence submission at Ms Makhetha’s case reasonably could prevent the presiding officer from making the nexus between the two cases. The applicant only assumed the chairperson had intrinsic details of the applicant’s case before hearing it. No form of proof was submitted that the chairperson knew the substantial merits of the case. The chairperson denied this allegation and stated that he only realised when the witnesses were being called that the cases are related. The argument by the applicant to remit the case for hearing anew the disciplinary cease cannot stand. Even if I were to accept that the chairperson knew the intrinsic details of the case, the arbitration hearing itself being a de novo hearing, would have cured that defect. My finding however is that it was not procedurally unfair for the chairperson to have heard both cases. I find that the dismissal was not procedurally unfair.
[36] I now address the question of substance.
[37] In terms of Schedule 8 of the Code, anyone determining the substantive fairness of a dismissal must determine: -
(a) Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the work-place; and
(b) If a rule or standard was contravened, whether or not—
(i) The rule was a valid or reasonable rule or standard;
(ii) The employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
(iii) The rule or standard has been consistently applied by the employer; and
(iv) dismissal with an appropriate sanction for the contravention of the rule or standard.
[38] There was no question about the knowledge if the rules. It was common cause that the applicant was aware of the rules in relation to the charge that was levelled against him.
[39] The next question that arises is whether the applicant breached the rules. The applicant admitted to have assaulted Ms Lerato Makhetha. He proffered two main points in justification. Firstly, he denied the intent to do grievous bodily harm. Secondly, the applicant submitted that he was provoked by Ms Makhetha.
[40] I will first address the question of intent to do grievous bodily harm. The distinction with regard to where it was common assault (section 18) or one with intention to do grievous bodily harm (section 17) becomes relevant in the education industry. This is so because the Employment of Educators Act 76 of 1998 as amended imposes a mandatory dismissal for the latter.
[41] The applicant was charged in terms of Section 17 (1 ) (d) of the Employment of Educators Act 76 of 1998 as amended which provides that an educator must be dismissed if he or she is found guilty of seriously assaulting, with the intention to cause grievous bodily harm to, a learner, student or other employee. In the alternative, he was charged in terms of Section 18 (1 ) (r) of the Employment of Educators Act 76 of 1998 as amended which provides that misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she assaults, or attempts to or threatens to assault, another employee or another person.
[42] One of the elements of the offence of assault with intent to do grievous bodily harm is proof of ‘intent.’ Jonathan Burchell in Principles of Criminal Law says the following in the discussion of this element of the offence of assault with intent to do grievous bodily harm:
“It is not necessary that X should actually cause grievous bodily harm: It is enough that he intends to cause it, for the crime is not ‘causing grievous bodily harm’. If X intends a grievous injury, but causes a slight injury or none at all, he may nevertheless be guilty of assault with intent to do grievous bodily harm. Conversely, of course, if X inflicts a serious injury without intending to cause grievous body harm, this crime is not committed”
[43] In order to secure a guilty verdict on a charge of assault with intent to cause grievous bodily harm initiator must, inter alia, prove that the accused employee intended to cause grievous bodily harm. As indicated above it is enough that such harm is intended even if it was not achieved.
[44] In order to prove intent, one must consider the guideline factors which provide a guide to the accused employee’s state of mind. These factors are not exhaustive, each case will have to be considered on its own merit. They are, first, the nature of the weapon or instrument used; secondly, the degree of force used by the accused in wielding that instrument or weapon; thirdly, the situation on the body where the assault was directed and fourthly the injuries actually sustained by the victim of the assault.
[45] It is common cause that no weapon was used in this case. The applicant was non-committal on how the assault happened, all he stated was that there was a scuffle and both him and Ms Makhetha fell. The version of the applicant falling was never even put to any of the respondent’s witnesses during their cross examination and is thus not probable. The witnesses of the respondent stated that the applicant used his bare hands. Ms Lerato Makhetha stated that the applicant hit her with fists , pushed her and she fell. He continued hitting her while on the ground until he was restrained by Mr Ngomane. Ms Mogari testified that even after Mr Ngomane had restrained the applicant, he was still aggressive and she also went to assist Mr Ngomane in restraining him. This was also not denied by the applicant during cross examination. No evidence was submitted regarding the injuries sustained by Ms Makhetha.
[46] It is trite that the labour disputes are decided on balance of probabilities and not beyond all doubt. It is my considered view that the probabilities favour the respondent. This is so because of the fact that I accept the version of the respondent that the applicant pushed Ms Makhetha and she fell, he continued hitting her even when she was on the ground. He had to be restrained by Mr Ngomane and that did not fully stop him and Ms Mogari has to assist in restraining him. I accept that on balance pf probabilities that these actions of the applicant indicated a person with the intent to cause grievous bodily harm.
[47] The applicant submitted that Ms Makheta harassed him. Firstly, at the function at Gopane when she asked about why he was not paying her while he has no wife, a big house, car and salary. Secondly, she kept telling him during the week of 8 to14 September 2018 to pay her while he did not owe her. He ignored her hoping that she was going to back off. I will not even assess whether or not the applicant’s conduct did in fact amount to harassment. But even if I were to accept that it did, I do not see how and why the allegation of harassment was even raised by the applicant. Previous harassment is not one of the legal justifications for a wrongful action or assault.
[48] I now address the second defence of provocation. He submitted that Ms Mkhetha provoked him by taking his phones. The question that arises is whether or not the taking of the applicant’s phones ameliorate the assault. In other words, could it be said that Lerato Makhetha had provoked the applicant?
[49] In law, provocation is when a person is considered to have committed a wrongful act partly because of a preceding set of events that might cause a reasonable person to lose self-control. This makes them less morally culpable than if the act was premeditated and done out of pure malice. A material feature of provocation as a mitigating factor is the immediacy of the wrongdoer’s reaction to the victim’s provocative act. The wrongdoer must have immediately and in the heat of the moment resorted to violent conduct. A delayed act of premeditated retribution is the complete opposite of momentary loss of or reduced self-control which carries the stamp of provocation.
[50] The applicant knew that Ms Makhetha had the phones and he sent Boipelo to go get them and the Ms Makhetha refused. He then went there himself and started assaulting the applicant. This was not a heat of a moment action. The applicant after becoming aware of the fact that Ms Lerato Makhetha had the phones went straight to her and assaulted her. The was no immediacy to his reaction, he could have stayed away from the whole incident. It is thus my finding that the incident did not amount to provocation in its legal definition.
[51] It is my finding that the respondent has proved on balance of probabilities that the applicant is guilty of allegation 1 as charged.
[52] I now turn to the question of sanction.
[53] Schedule 8, Code of Good Practice: Dismissals, item 4 and 5 provides a follows:-
(4) Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination. Whatever the merits of the case for dismissal might be, a dismissal will not be fair if it does not meet the requirements of section 188.
(5) When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee’s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself
[54] Considering the mitigation, the applicant has worked for the respondent for 26 years. It is noteworthy to state that the commission of a serious misconduct tilts the scales to an extent that even the strongest mitigating factors, like long service and a clean record of discipline are likely to have a minimal impact on the sanction to be imposed. It should be noted that the applicant was charged and found guilty under section 17 of the Employment of Educators Act 76 of 1998 as amended. This provides for a mandatory dismissal for offences that are listed therein.
[55] The applicant argued that evidence on breakdown of trust relationship was not lead and the respondent’s case must also fall on that. I do not concede with this argument. This is because where it is apparent from the nature of the misconduct that the trust relationship has been irreparably broken down it is not necessary to lead evidence to prove the breakdown. I am guided in this regard by the case of Autozone v DRC of Motor Industry and Others (2019) 40 ILJ 101 LAC). Further, dismissal is mandatory in terms of the relevant legislation under the circumstances
[56] Considering all these issues, it is my finding that the dismissal is a fair sanction under the circumstances.
Award
[1] The applicant’s dismissal was procedurally and substantively fair.
[2] The case against the respondent is dismissed.
[3] I make no order as to costs
Dated on the 20 day of January 2021
Kuvonakala Chavalala
ELRC Panelist