PSES481-18/19KZN
PSES481-18/19KZN
Award Date:
10 December 2019
Case Number: PSES481-18/19KZN
Province: KwaZulu-Natal
Applicant: SADTU obo TP RADEBE
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Dismissal - Misconduct
Venue: Department of Education offices in Stanger
Award Date: 10 December 2019
Arbitrator: SIZIWE GCAYI
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT STANGER
IN THE ARBITRATION
BETWEEN
SADTU obo TP RADEBE APPLICANT
AND
DEPARTMENT OF EDUCATION – KZN RESPONDENT
ARBITRATION AWARD
CASE NO PSES481-18/19KZN
DATE/S OF HEARING 25 APRIL 2019 - 25 NOVEMBER 2019
DATE AWARD SUBMITTED 10 DECEMBER 2019
NAME OF PANELIST SIZIWE GCAYI
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter was set down for arbitration in terms of section 191(5) of the Labour Relations Act 66 of 1995 (“LRA”) at the Department of Education offices in Stanger on 25 April 2019, at 10h00. Mr Z Gumede an official from South African Democratic Teachers Union (“SADTU”) represented the Applicant. Mr M Mabaso an official, represented the Respondent, (Department of Education Kwa Zulu Natal). The parties were given until 04 December 2019 to submit their closing arguments to the Council. The proceedings were electronically recorded.
ISSUE TO BE DECIDED
2. I am required to determine whether the dismissal of the Applicant by the Respondent was fair. Further, depending on my finding, l am required to determine the appropriate relief.
BCKGROUND OF THE DISPUTE
3. The Applicant was employed as an educator since 15 July 2013 at Stanger high school. She was employed as post level one educator. The Applicant was dismissed for misconduct, following a disciplinary hearing. The Applicant appealed against the findings of the disciplinary hearing and her appeal was dismissed. The Applicant seeks reinstatement.
SURVEY OF EVIDENCE AND ARGUMENT
Respondent’s case
4. The Respondent called three witnesses. Their evidence is summarised as follows.
5. Ms Nomusa Zulu (“ Nomusa”) testified as follows: Nokwazi Zulu is her daughter, schooling at Stanger high school doing grade 12. In 2017 her daughter was doing grade 10. The Applicant contacted her during school holidays and requested Nokwazi to attend a party at her place. The Applicant introduced herself as the class teacher of Nokwazi. She communicated the request with her daughter, who was accompanied by her sister to the party. She only became aware this year that there was never a party. Nokwazi told her that the Applicant informed her about the life science script that was missing. The Applicant instructed Nokwazi to rewrite the life science. Nokwazi wrote the paper at the Applicant’s place of residence. When the schools were re-opened, she went to the school. The purpose of the visit to the school was Nokwazi’s marks that were not satisfactory. Before she went to the school, Nokwazi informed her that she had two scripts for life science. It was in July 2017 when she went to the school. At the school she met with the school principal, Mr Singh, who informed her that the matter of scripts was handled by the circuit manager. She would be updated when the investigation was concluded.
6. Mr Ramen Rajoo (“Rajoo”) testified as follows: He is employed at Stanger high school since 2003. The Applicant was known to him as they were both educators at the same school. The Applicant taught Natural Science and Life Science. One of his duties at the school was moderation and supervising Ms Dehaloo and the Applicant. There were two HOD’s at the school. Mr Ncube requested him to assist with the Life Science as he was busy with Mathematics. Bundle “A” p.g 43 Life Science script for Nokwazi Zulu. It was not submitted on the initial day for moderation but submitted the following day. After the moderation he looked for the Applicant but could not find her. He met with Ms Dehaloo who mentioned the handwriting on the script was not for Nokwazi Zulu. Ms Dehaloo showed her the Life Orientation script for Nokwazi Zulu. The handwriting on both scripts were different. He reported the matter to Mr Ncube and the Deputy Principal Mr Dugmore and lastly to the school principal Mr Singh. Life Orientation and Life Science script for Nokwazi Zulu were submitted to the Mr Singh. Bundle “A” p.g 43-46 were submitted by the Applicant for moderation. Bundle “A” p.g 38 and 43 had similarities, they were both for Nokwazi Zulu grade 10 learner. Bundle “A” p.g 38 was never submitted for moderation. The Applicant was later charged for misconduct and dismissed. They had a good working relationship with the Applicant.
7. Ms Nokwazi Zulu (“Nokwazi”) testified as follows: She is a learner at Stanger high school doing grade 12. In 2017 she was doing grade 10 at Stanger high school. Bundle “A” p.g 38-41 was a script for Life Science written in 2017. The paper was written during June holidays at the Applicant’s place. She received a phone call from her mother about the party at the Applicant’s house. The Applicant phoned her about the Life Science marks that were missing. She went to the Applicant’s house situated next to old FNB. She wrote the paper with the assistance of the Applicant who told her which answers to write. Bundle “A” p.g 43-46 was not written by her. Marks on p.g 43 were 80/150 and marks on p.g 38 were 80/150
Applicant’s Case
The Applicant testified and called six witnesses in support of her case. She testified as follows: She was formerly employed at Stanger high school since 15 July 2013. On 29 June 2017 she submitted scripts for moderation to Mr Rajoo. She submitted 29 scripts for 29 learners. The scripts were returned on the same day except for the question paper and the memorandum. She mentioned that Nomusa was a liar as she never phoned her. In relation to charges that led to her unemployment, she mentioned that she was framed by the school principal Mr Singh. She never received a warm welcome from the principal. On 17 July 2013, Mr Rajoo was sent by the school principal to observe her. On 07 August 2013, students signed a petition led by Lethuxolo Dube. Dr Blose was made aware about all the ill- treatment at the school. Dr Blose took no action against the school principal. On 21 February 2017 two HOD’s Mr Ncube and Mr Ngwane were sent by the principal to advise the Applicant to take the SGB post for Life Orientation. She refused. On 02 March 2017, she was chased away by Mr Singh in his office. The matter was reported to SADTU, HOD’s and Circuit manager. Bundle” A” p.g 43 is unknown to her. First saw it on October 2017 at the disciplinary enquiry. Bundle” A “p.g 38 it was the script for Nokwazi Zulu, she marked it.
8. Mr Kemlal Thotha[ “Thotha”] testified as follows: Employed as an educator at Stanger high school since January 2000. He was a NAPTOSA member. The Applicant was known to him. The Applicant was accused of rewriting the script for the learner. He mentioned it was the last day of exams, the school principal summoned him, Mr Rajoo, Mr Halla, not certain about the HOD’s to his office. The principal informed them of the incident of the script and also reporting the matter to the department. He enquired from the principal about the version of the Applicant.
9. Ms Thokozile Khumalo (“Khumalo”) testified as follows: She is employed as an educator at Stanger high school. The Applicant was known to her as they were colleagues at the same school. Nokwazi Zulu was known to her, she taught her in grade 10 in 2017. In July 2017, Nokwazi complained about her marks for Business study and Life Science. She advised her to approach the educators for both subjects. Marks were changed except for Life Science. The matter was escalated to the parent. The parent (Mother) visited the school and communicated with the school principal. On 29 June 2017, scripts were requested by Mr Rajoo for moderation. Mr Rajoo took them and brought them back same day.
10. Mr Thulani Blose (Blose) testified as follows: He was employed as the Chief education specialist at Stanger management. The Applicant was known to him as she was an educator at Stanger high school. The Applicant reported challenges in resuming her duties. The matter was escalated to the circuit manager Mr Ngubande. No other incidents were reported to him.
11. Mr Wiseman Cele [Cele] testified as follows: The Applicant was known to him as an educator at Stanger high school. The Applicant was a member of SADTU, at that time he was the SADTU secretary at Stanger branch. The Applicant reported a number of issues as per Bundle “C” p.g 1, 4. He visited the school and tried both members [the Applicant and school principal] to be on good terms. The relationship between the Applicant and school principal was sour. The Applicant was setup by the school principal. He disputed that the Applicant wrote the script for the learner.
12. Ms Thembeka Sibiya (“Sibiya”) testified as follows: The Applicant was known to her. The Applicant taught her in grade 9 Natural Science in 2017. The Applicant was accepted by all students except one incident. She heard that the students were compiling a petition. The student that was leading was Lethuxolo Dube. After the break, she informed the Applicant about the petition. In 2016, there was a meeting for all the girls. At the meeting there was no mention of the Applicant’s name.
13. Ms Asamkele Mbatha (“Mbatha”) testified as follows: The Applicant is her mother. The Applicant taught her Life Science in grade 10 at Stanger high school. In 2017 she was in Durban, however during school holidays she was with the Applicant. In June holidays in 2017, they were at Kranskop. There was an incident when she was summoned to the principal’s office. Mr Singh instructed her to remove the blazer as it was not part of the girls’ uniform. She refused and left the office. In 2016, Ms Pillay convened the meeting for the girls. At the meeting there was no mention of the Applicant’s name.
ANALYSIS OF EVIDENCE AND ARGUMENT
14. It is common cause that the Applicant was dismissed for misconduct. It is also common cause that the Applicant was an educator at Stanger high school. It is also common cause that the Applicant taught Nokwazi Zulu Life Science in grade 10 at Stanger high school in 2017.
15. The fairness of dismissal is in dispute. For a dismissal to be fair, it has to comply with the requirements of section 188(1) of the Labour Relations Act 66 of 1995 (LRA) as amended.
16. Section 192(1) of the LRA places an onus on the employee to establish the existence of dismissal. In this matter the existence of dismissal is not in dispute. The onus now shifts to the employer in terms of section 192(2) of the LRA to prove on the balance of probabilities the substantive and procedural fairness of the dismissal.
17. It is worth mentioning that the standard of proof that is used in these proceedings is on a balance of probabilities. It is different from the one that is used at criminal court which is beyond any reasonable doubt, where the state has to prove all the elements of the offence.
18. Procedural Fairness: At the commencement of these proceedings the Applicant representative placed on record that the procedural fairness was challenged.
In determining the fairness of dismissal, the LRA requires me to consider the Code of Good Practice: Dismissal Schedule 8, item 4 deals with Fair Procedure. And also to take into consideration the principle laid down in Avril Elizabeth Home for the Mentally Handicapped v CCMA and others(2006) 27 ILJ 1644 (LC);(2006) 9 BLLR 833 (LC). It was held that the employer was merely required to conduct the investigation, give an employee or his representative an opportunity to respond to allegations after a reasonable period and thereafter to take a decision and give the employee notice thereof.
It is common cause that the Applicant was notified about the disciplinary hearing on 16 October 2017 as per Bundle “A” p.g 27-28. She was given reasonable time to prepare for her case scheduled for 02 November 2017. At the hearing, she was represented by Mr Khuzwayo, a union official from SADTU. The Applicant testified and during her testimony she made no mention of procedural unfairness during her disciplinary hearing. In the circumstances I find that the Respondent complied with item 4 of the Code of Good Practice Schedule 8 as well as the principle laid down in the above case law, and as such find the dismissal of the Applicant procedurally fair.
19. Substantive Fairness: In determining fairness of the dismissal, the LRA requires me to consider the Code of Good Practice: Dismissal, Schedule 8 of the LRA as amended. Item 7 of the Code of Good Practice provides guidelines in cases of dismissal for misconduct. Any person who is determining whether a dismissal for misconduct is unfair should consider: (a) Whether or not the employee contravened a rule or standard regulating conduct in or of relevance to the workplace. (b) If a rule or standard was contravened, whether or not the (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 has been consistently applied by the employer and (vi) dismissal was an appropriate sanction for the dismissal.
20. Respondent in trying to prove its case led evidence of three witnesses. Their evidence has been summarised above, it will not be repeated. I was impressed with the witnesses called by the Respondent. Their evidence was consistent with the probabilities. It was clear and satisfactory in all material respects. They were reliable and credible witnesses. Under cross-examination, they maintained their version. The evidence of the witnesses corroborated each other and as such I find it acceptable. Unfortunately, the same cannot be said about the Applicant’s case.
21. It is worth mentioning, all throughout the proceeding the Applicant sat next to her representative, except when she took the witness stand. At the commencement of the hearing of evidence the Applicant was warned to pay attention to the evidence of the witnesses as her representative would be given an opportunity to cross-examine them. Anything she disputed to be brought to the attention of her representative. With all the witnesses that testified the Applicant was reminded of such. I must mention, I observed the Applicant writing notes to her representative and I also allowed the representative to consult with the Applicant.
22. The evidence of Nomusa and Nokwazi was never challenged. It was the evidence of these two witnesses that placed the Applicant on the scene. The version of the Applicant was never put to these witnesses in order to allow them to comment. It was for the first time we heard Nomusa was lying, the Applicant did not have their [Nomusa and Nokwazi] numbers. The Applicant under cross-examination mentioned Bundle” A” p.g43 was manufactured by Mr Singh and Mr Rajoo, We also heard that Nokwazi was lying, she never phoned her.
23. By quoting what I have quoted above, I was highlighting what transpired during the Applicant’s case. As I have indicated that Applicant brought new evidence when she testified, evidence that was never tested to the witnesses, in particular, those that implicated her. The question is why was that done? Was that an afterthought?
In South African Law Butterworths 1997, Pretorious had this to say on cross-examination. “it is unjust and unfair not to challenge a witnesses account if offered the opportunity then later argue when it is no longer possible for the witness to defend himself or offer an explanation then his evidence should not be accepted”
.
24. My question still stands: did the Applicant fully instruct her representative? In her manner of answering, it did not appear that she fully instructed her representative. I don’t doubt the ability of her representative, surely if she properly instructed him, he would have challenged the evidence of Nomusa and Nokwazi. For the reasons that I have highlighted above I do not find the Applicant as a credible and reliable witness.
25. There is a big danger in not cross-examining the witness on relevant and important aspects, general that suggest that the evidence and testimony of that witness should be accepted. Courts have commented on this issue, in ABSA BROTHERS (PTY) LTD V MOSHOANA AND OTHERS (2005) 10 BLLR 939(LAC) the court stated that it was an essential part of the administration of justice that a cross- examiner must put as much of his case to a witness as concerns that witness. He has not only a right to cross examination but, indeed also a responsibility to cross- examine a witness if it is intended to argue later that the evidence of the witness should be rejected. A failure to cross-examine may in general imply an acceptance of the witness testimony”.
26.The witnesses that were called by the Applicant did not assist her case, they were not relevant. Blose mentioned he knew nothing about the charges that led the Applicant to be out of employment. Sibiya and Mbatha were also not questioned about the charges that led the Applicant to be out of employment. Cele’s evidence was not substantiated, all that one could pick from his testimony was that he was trying to protect his member. It is actually not clear why these four witnesses were called. The other two Thotha and Khumalo were relevant as they were educators at the school with the Applicant, they had an idea of the charges that the Applicant faced, let alone that they did not assist the Applicant’s case.
27.I have not been convinced by the Applicant’s evidence. In the light of the above I accept the evidence of the Respondent’s witnesses as more probable version and a true reflection of the facts.
28.Therefore, in this case, I find that the Respondent discharged the onus placed on it in terms of section 192(2) of the LRA to show that the dismissal of the Applicant was substantively fair.
AWARD
29. The dismissal of the Applicant TP Radebe was fair. The Applicant is not entitled to any relief.
Signature:
Commissioner: Siziwe Gcayi
Sector: Basic Education
Province: KwaZulu-Natal
Applicant: SADTU obo TP RADEBE
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Dismissal - Misconduct
Venue: Department of Education offices in Stanger
Award Date: 10 December 2019
Arbitrator: SIZIWE GCAYI
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT STANGER
IN THE ARBITRATION
BETWEEN
SADTU obo TP RADEBE APPLICANT
AND
DEPARTMENT OF EDUCATION – KZN RESPONDENT
ARBITRATION AWARD
CASE NO PSES481-18/19KZN
DATE/S OF HEARING 25 APRIL 2019 - 25 NOVEMBER 2019
DATE AWARD SUBMITTED 10 DECEMBER 2019
NAME OF PANELIST SIZIWE GCAYI
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter was set down for arbitration in terms of section 191(5) of the Labour Relations Act 66 of 1995 (“LRA”) at the Department of Education offices in Stanger on 25 April 2019, at 10h00. Mr Z Gumede an official from South African Democratic Teachers Union (“SADTU”) represented the Applicant. Mr M Mabaso an official, represented the Respondent, (Department of Education Kwa Zulu Natal). The parties were given until 04 December 2019 to submit their closing arguments to the Council. The proceedings were electronically recorded.
ISSUE TO BE DECIDED
2. I am required to determine whether the dismissal of the Applicant by the Respondent was fair. Further, depending on my finding, l am required to determine the appropriate relief.
BCKGROUND OF THE DISPUTE
3. The Applicant was employed as an educator since 15 July 2013 at Stanger high school. She was employed as post level one educator. The Applicant was dismissed for misconduct, following a disciplinary hearing. The Applicant appealed against the findings of the disciplinary hearing and her appeal was dismissed. The Applicant seeks reinstatement.
SURVEY OF EVIDENCE AND ARGUMENT
Respondent’s case
4. The Respondent called three witnesses. Their evidence is summarised as follows.
5. Ms Nomusa Zulu (“ Nomusa”) testified as follows: Nokwazi Zulu is her daughter, schooling at Stanger high school doing grade 12. In 2017 her daughter was doing grade 10. The Applicant contacted her during school holidays and requested Nokwazi to attend a party at her place. The Applicant introduced herself as the class teacher of Nokwazi. She communicated the request with her daughter, who was accompanied by her sister to the party. She only became aware this year that there was never a party. Nokwazi told her that the Applicant informed her about the life science script that was missing. The Applicant instructed Nokwazi to rewrite the life science. Nokwazi wrote the paper at the Applicant’s place of residence. When the schools were re-opened, she went to the school. The purpose of the visit to the school was Nokwazi’s marks that were not satisfactory. Before she went to the school, Nokwazi informed her that she had two scripts for life science. It was in July 2017 when she went to the school. At the school she met with the school principal, Mr Singh, who informed her that the matter of scripts was handled by the circuit manager. She would be updated when the investigation was concluded.
6. Mr Ramen Rajoo (“Rajoo”) testified as follows: He is employed at Stanger high school since 2003. The Applicant was known to him as they were both educators at the same school. The Applicant taught Natural Science and Life Science. One of his duties at the school was moderation and supervising Ms Dehaloo and the Applicant. There were two HOD’s at the school. Mr Ncube requested him to assist with the Life Science as he was busy with Mathematics. Bundle “A” p.g 43 Life Science script for Nokwazi Zulu. It was not submitted on the initial day for moderation but submitted the following day. After the moderation he looked for the Applicant but could not find her. He met with Ms Dehaloo who mentioned the handwriting on the script was not for Nokwazi Zulu. Ms Dehaloo showed her the Life Orientation script for Nokwazi Zulu. The handwriting on both scripts were different. He reported the matter to Mr Ncube and the Deputy Principal Mr Dugmore and lastly to the school principal Mr Singh. Life Orientation and Life Science script for Nokwazi Zulu were submitted to the Mr Singh. Bundle “A” p.g 43-46 were submitted by the Applicant for moderation. Bundle “A” p.g 38 and 43 had similarities, they were both for Nokwazi Zulu grade 10 learner. Bundle “A” p.g 38 was never submitted for moderation. The Applicant was later charged for misconduct and dismissed. They had a good working relationship with the Applicant.
7. Ms Nokwazi Zulu (“Nokwazi”) testified as follows: She is a learner at Stanger high school doing grade 12. In 2017 she was doing grade 10 at Stanger high school. Bundle “A” p.g 38-41 was a script for Life Science written in 2017. The paper was written during June holidays at the Applicant’s place. She received a phone call from her mother about the party at the Applicant’s house. The Applicant phoned her about the Life Science marks that were missing. She went to the Applicant’s house situated next to old FNB. She wrote the paper with the assistance of the Applicant who told her which answers to write. Bundle “A” p.g 43-46 was not written by her. Marks on p.g 43 were 80/150 and marks on p.g 38 were 80/150
Applicant’s Case
The Applicant testified and called six witnesses in support of her case. She testified as follows: She was formerly employed at Stanger high school since 15 July 2013. On 29 June 2017 she submitted scripts for moderation to Mr Rajoo. She submitted 29 scripts for 29 learners. The scripts were returned on the same day except for the question paper and the memorandum. She mentioned that Nomusa was a liar as she never phoned her. In relation to charges that led to her unemployment, she mentioned that she was framed by the school principal Mr Singh. She never received a warm welcome from the principal. On 17 July 2013, Mr Rajoo was sent by the school principal to observe her. On 07 August 2013, students signed a petition led by Lethuxolo Dube. Dr Blose was made aware about all the ill- treatment at the school. Dr Blose took no action against the school principal. On 21 February 2017 two HOD’s Mr Ncube and Mr Ngwane were sent by the principal to advise the Applicant to take the SGB post for Life Orientation. She refused. On 02 March 2017, she was chased away by Mr Singh in his office. The matter was reported to SADTU, HOD’s and Circuit manager. Bundle” A” p.g 43 is unknown to her. First saw it on October 2017 at the disciplinary enquiry. Bundle” A “p.g 38 it was the script for Nokwazi Zulu, she marked it.
8. Mr Kemlal Thotha[ “Thotha”] testified as follows: Employed as an educator at Stanger high school since January 2000. He was a NAPTOSA member. The Applicant was known to him. The Applicant was accused of rewriting the script for the learner. He mentioned it was the last day of exams, the school principal summoned him, Mr Rajoo, Mr Halla, not certain about the HOD’s to his office. The principal informed them of the incident of the script and also reporting the matter to the department. He enquired from the principal about the version of the Applicant.
9. Ms Thokozile Khumalo (“Khumalo”) testified as follows: She is employed as an educator at Stanger high school. The Applicant was known to her as they were colleagues at the same school. Nokwazi Zulu was known to her, she taught her in grade 10 in 2017. In July 2017, Nokwazi complained about her marks for Business study and Life Science. She advised her to approach the educators for both subjects. Marks were changed except for Life Science. The matter was escalated to the parent. The parent (Mother) visited the school and communicated with the school principal. On 29 June 2017, scripts were requested by Mr Rajoo for moderation. Mr Rajoo took them and brought them back same day.
10. Mr Thulani Blose (Blose) testified as follows: He was employed as the Chief education specialist at Stanger management. The Applicant was known to him as she was an educator at Stanger high school. The Applicant reported challenges in resuming her duties. The matter was escalated to the circuit manager Mr Ngubande. No other incidents were reported to him.
11. Mr Wiseman Cele [Cele] testified as follows: The Applicant was known to him as an educator at Stanger high school. The Applicant was a member of SADTU, at that time he was the SADTU secretary at Stanger branch. The Applicant reported a number of issues as per Bundle “C” p.g 1, 4. He visited the school and tried both members [the Applicant and school principal] to be on good terms. The relationship between the Applicant and school principal was sour. The Applicant was setup by the school principal. He disputed that the Applicant wrote the script for the learner.
12. Ms Thembeka Sibiya (“Sibiya”) testified as follows: The Applicant was known to her. The Applicant taught her in grade 9 Natural Science in 2017. The Applicant was accepted by all students except one incident. She heard that the students were compiling a petition. The student that was leading was Lethuxolo Dube. After the break, she informed the Applicant about the petition. In 2016, there was a meeting for all the girls. At the meeting there was no mention of the Applicant’s name.
13. Ms Asamkele Mbatha (“Mbatha”) testified as follows: The Applicant is her mother. The Applicant taught her Life Science in grade 10 at Stanger high school. In 2017 she was in Durban, however during school holidays she was with the Applicant. In June holidays in 2017, they were at Kranskop. There was an incident when she was summoned to the principal’s office. Mr Singh instructed her to remove the blazer as it was not part of the girls’ uniform. She refused and left the office. In 2016, Ms Pillay convened the meeting for the girls. At the meeting there was no mention of the Applicant’s name.
ANALYSIS OF EVIDENCE AND ARGUMENT
14. It is common cause that the Applicant was dismissed for misconduct. It is also common cause that the Applicant was an educator at Stanger high school. It is also common cause that the Applicant taught Nokwazi Zulu Life Science in grade 10 at Stanger high school in 2017.
15. The fairness of dismissal is in dispute. For a dismissal to be fair, it has to comply with the requirements of section 188(1) of the Labour Relations Act 66 of 1995 (LRA) as amended.
16. Section 192(1) of the LRA places an onus on the employee to establish the existence of dismissal. In this matter the existence of dismissal is not in dispute. The onus now shifts to the employer in terms of section 192(2) of the LRA to prove on the balance of probabilities the substantive and procedural fairness of the dismissal.
17. It is worth mentioning that the standard of proof that is used in these proceedings is on a balance of probabilities. It is different from the one that is used at criminal court which is beyond any reasonable doubt, where the state has to prove all the elements of the offence.
18. Procedural Fairness: At the commencement of these proceedings the Applicant representative placed on record that the procedural fairness was challenged.
In determining the fairness of dismissal, the LRA requires me to consider the Code of Good Practice: Dismissal Schedule 8, item 4 deals with Fair Procedure. And also to take into consideration the principle laid down in Avril Elizabeth Home for the Mentally Handicapped v CCMA and others(2006) 27 ILJ 1644 (LC);(2006) 9 BLLR 833 (LC). It was held that the employer was merely required to conduct the investigation, give an employee or his representative an opportunity to respond to allegations after a reasonable period and thereafter to take a decision and give the employee notice thereof.
It is common cause that the Applicant was notified about the disciplinary hearing on 16 October 2017 as per Bundle “A” p.g 27-28. She was given reasonable time to prepare for her case scheduled for 02 November 2017. At the hearing, she was represented by Mr Khuzwayo, a union official from SADTU. The Applicant testified and during her testimony she made no mention of procedural unfairness during her disciplinary hearing. In the circumstances I find that the Respondent complied with item 4 of the Code of Good Practice Schedule 8 as well as the principle laid down in the above case law, and as such find the dismissal of the Applicant procedurally fair.
19. Substantive Fairness: In determining fairness of the dismissal, the LRA requires me to consider the Code of Good Practice: Dismissal, Schedule 8 of the LRA as amended. Item 7 of the Code of Good Practice provides guidelines in cases of dismissal for misconduct. Any person who is determining whether a dismissal for misconduct is unfair should consider: (a) Whether or not the employee contravened a rule or standard regulating conduct in or of relevance to the workplace. (b) If a rule or standard was contravened, whether or not the (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 has been consistently applied by the employer and (vi) dismissal was an appropriate sanction for the dismissal.
20. Respondent in trying to prove its case led evidence of three witnesses. Their evidence has been summarised above, it will not be repeated. I was impressed with the witnesses called by the Respondent. Their evidence was consistent with the probabilities. It was clear and satisfactory in all material respects. They were reliable and credible witnesses. Under cross-examination, they maintained their version. The evidence of the witnesses corroborated each other and as such I find it acceptable. Unfortunately, the same cannot be said about the Applicant’s case.
21. It is worth mentioning, all throughout the proceeding the Applicant sat next to her representative, except when she took the witness stand. At the commencement of the hearing of evidence the Applicant was warned to pay attention to the evidence of the witnesses as her representative would be given an opportunity to cross-examine them. Anything she disputed to be brought to the attention of her representative. With all the witnesses that testified the Applicant was reminded of such. I must mention, I observed the Applicant writing notes to her representative and I also allowed the representative to consult with the Applicant.
22. The evidence of Nomusa and Nokwazi was never challenged. It was the evidence of these two witnesses that placed the Applicant on the scene. The version of the Applicant was never put to these witnesses in order to allow them to comment. It was for the first time we heard Nomusa was lying, the Applicant did not have their [Nomusa and Nokwazi] numbers. The Applicant under cross-examination mentioned Bundle” A” p.g43 was manufactured by Mr Singh and Mr Rajoo, We also heard that Nokwazi was lying, she never phoned her.
23. By quoting what I have quoted above, I was highlighting what transpired during the Applicant’s case. As I have indicated that Applicant brought new evidence when she testified, evidence that was never tested to the witnesses, in particular, those that implicated her. The question is why was that done? Was that an afterthought?
In South African Law Butterworths 1997, Pretorious had this to say on cross-examination. “it is unjust and unfair not to challenge a witnesses account if offered the opportunity then later argue when it is no longer possible for the witness to defend himself or offer an explanation then his evidence should not be accepted”
.
24. My question still stands: did the Applicant fully instruct her representative? In her manner of answering, it did not appear that she fully instructed her representative. I don’t doubt the ability of her representative, surely if she properly instructed him, he would have challenged the evidence of Nomusa and Nokwazi. For the reasons that I have highlighted above I do not find the Applicant as a credible and reliable witness.
25. There is a big danger in not cross-examining the witness on relevant and important aspects, general that suggest that the evidence and testimony of that witness should be accepted. Courts have commented on this issue, in ABSA BROTHERS (PTY) LTD V MOSHOANA AND OTHERS (2005) 10 BLLR 939(LAC) the court stated that it was an essential part of the administration of justice that a cross- examiner must put as much of his case to a witness as concerns that witness. He has not only a right to cross examination but, indeed also a responsibility to cross- examine a witness if it is intended to argue later that the evidence of the witness should be rejected. A failure to cross-examine may in general imply an acceptance of the witness testimony”.
26.The witnesses that were called by the Applicant did not assist her case, they were not relevant. Blose mentioned he knew nothing about the charges that led the Applicant to be out of employment. Sibiya and Mbatha were also not questioned about the charges that led the Applicant to be out of employment. Cele’s evidence was not substantiated, all that one could pick from his testimony was that he was trying to protect his member. It is actually not clear why these four witnesses were called. The other two Thotha and Khumalo were relevant as they were educators at the school with the Applicant, they had an idea of the charges that the Applicant faced, let alone that they did not assist the Applicant’s case.
27.I have not been convinced by the Applicant’s evidence. In the light of the above I accept the evidence of the Respondent’s witnesses as more probable version and a true reflection of the facts.
28.Therefore, in this case, I find that the Respondent discharged the onus placed on it in terms of section 192(2) of the LRA to show that the dismissal of the Applicant was substantively fair.
AWARD
29. The dismissal of the Applicant TP Radebe was fair. The Applicant is not entitled to any relief.
Signature:
Commissioner: Siziwe Gcayi
Sector: Basic Education