PSES492-17/18NW

Award  Date:

10 December 2019

Case Number: PSES492-17/18NW
Province: North West
Applicant: Sekati D.E.
Respondent: Department of Education North West
Issue: Unfair Labour Practice - Provision of Benefits
Award Date: 10 December 2019
Arbitrator: Shaku Landela
Case No. PSES492-17/18NW
Panellist: Shaku Landela
Date of Award: 10 December 2018

In the MATTER between:

Sekati D.E. APPLICANT

And

Department of Education and Sport Development–North West RESPONDENT

For the Applicant: Adv. Tutubalang
Instructing Attorneys: Mathibane Attorneys Inc.
For the Respondent: Mr Martin Keetile – Labour Relations Specialist

DETAILS OF HEARING AND REPRESENTATION
[1] After several postponements for various preparatory reasons, evidence was heard over a period and on the following dates:
[2]: 3 and 4 May 2018,
[3-4] 4, 5 and 6 July 2018;
[5] 23 and 24 August 2018 ;
[6] 21 September 2018;
[7] 8 and 9 November 2018.
[8] Proceedings of this arbitration were digitally recorded and I kept hand written notes in the case file.
[9] Proceedings were conducted in English and Marvin Seale, Evelyn Moncho and Brian Banga interpreted the Setswana versions of the proceedings.
ISSUE/S TO BE DECIDED
[10] In terms of the Pre-Arbitration Minutes concluded on 28 March 2018, I am required to determine whether the Respondent’s conduct made continued employment intolerable for the Applicant.
BACKROUND TO THE DISPUTE
[11] The Applicant was engaged by the Respondent as Post Level 1 – Educator on 05 February 1990.
[12] On 15 September 2017 she resigned from her position of Post Level 2 – Educator (HOD School Based) at Thuto-Lore Secondary School earning a monthly basic salary rate of R27 959.25.
[13] The Applicant’s Letter of Resignation dated 15 September 2017 was received by the school’s principal.
[14] The Applicant was the only witness in her case and the Respondent called 4 witnesses to rebut her version.
[15] The Applicant is seeking maximum compensation.
SURVEY OF EVIDENCE AND ARGUMENTS
03 May 2018
[16] The Respondent’s application to supplement its bundle was granted. Because the Applicant did not oppose the introduction of the said document.

The Applicant, Dikeledi Esther Sekati, testified under oath to the following:

[18] The Applicant has been an educator for 28 years and her position was Head of Department (Languages). Mrs Ferris was her line manager, the Deputy Principal of Thuto–Lore Secondary School.
[19] The Applicant resigned from her position as Educator Post Level - 2 HOD on 15 September 2018 because of the following reasons:
19.1 She was not treated fairly at the School since from being Acting HOD and from being appointed HOD until she resigned.
19.2 There was an Accountability Session in 2008 which was conducted by their mentor, Mr Nhlabathi. Every department was expected to submit a report and progress made as well as challenges.
19.3 That was when she realised that the things she said in that session had begun to ruin her relationship with the entire school staff.
19.4 When one is an Acting HOD, fellow educators do not take one seriously especially at a school like Thuto-Lore where everyone does as they please. The principal did not have the courage to reprimand or discipline teachers whenever they misconducted themselves.
19.5 There was a teacher in her department, Mr Moshe, who was giving the Applicant a lot of trouble and her report was mainly based on him. She had previously reported the conduct of Mr Moshe to Mrs Ferris (the Deputy Principal) as well as to the school principal.
19.6 The Applicant testified that she stated in her report that both the deputy principal and the principal did nothing to remedy the situation.
19.7 That did not sit well with the principal and Mrs Ferris in the presence of Mr Nhlabathi, which was when she realised that there was a tension between her and her superiors.
19.8 Mrs Ferris is in charge of Allocation of Subjects and she started over-allocating the Applicant. Allocation of periods also started to change on a daily basis where she was allocated more periods than her subordinates, even as a HOD.
19.9 She then wrote a letter to the deputy principal about her dissatisfaction regarding over-allocation and other problems she encountered in her department. She wrote the letter to Mrs Ferris because, as the deputy principal, she was in charge of Subjects Allocations. Mrs Ferris then summoned the Applicant to her office and told her that at the time she was acting principal she did most of the work, she told the Applicant that if she wanted to become the HOD, then she should not complain and must just carry on and do her work. She said Ferris told her not tell her how she must do the Allocations.
19.10 On that same day she was summoned to the office of the deputy principal and seeing that her problem was not addressed, she approached the office of the principal and reported the matter to the principal. The principal also did nothing to resolve the matter.
19.11 The night of the latter incident she began to bleed and she contacted her doctor and the next day she was admitted to hospital as she was pregnant and suffered a miscarriage as a result of the stress caused by the incident that happened at the school between herself and the deputy principal.
19.12 She sent an SMS to the principal that she had a miscarriage and pleaded for his intervention as she was holding Mrs Ferris responsible for her miscarriage. She indicated to the principal that she went through a lot of stress after an altercation she had had with Mrs Ferris and that on the night following, she could not sleep until the next day when she was admitted to hospital.
19.13 There was no response from the principal after the SMS she had sent to him about her miscarriage. The principal also did not call her and Mrs Ferris to address that problem. When she came back from sick leave she could not even take instructions from Mrs Ferris because she was not in good spirit to talk with her because Ms Ferris used the Applicants subordinates to instruct her to do her work. The Applicant testified that she could not take instructions from her subordinates because it was supposed to be the other way around. There was therefore no communication between herself and Mrs Ferris.
19.14 There was no support from the School Management Team for the loss she had been through. (The Applicant broke down in tears at thi point in the evidence and the matter was stoold down for 15 minutes to allow her to calm down.)
19.15 The Applicant emphasised the point that she hd just prior to this had a pregnancy scan and the child was growing well. The night after the incident at the school she started to bleed and in the morning she contacted her doctor. She went for a scan again and the doctor told her partner that there was a threatening miscarriage.
19.16 The Applicant was eventually admitted and within 5 minutes of admission she miscarried.
19.17 The doctor told the Applicant that miscarriage happened due to the stress.
[20] With regard to other concerns at the school, the Applicant testified that she reported an attempted assault, harassment, usage of vulgar language and labelling of her health status by a fellow educator to the principal. She also testified that she is suffering from Bi-Polar disorder.
[21] None of her colleagues, as well as the principal, understand what Bi-Polar is or what it means because none of them came to her and talked about her health status. Even though she had submitted a number of medical certificates from doctors indicating that she is suffering from Bi-Polar disorders, none of them came to ask her about it.
[22] Mr Kekana, the Subject Education Specialist (SES)/subject advisor for Setswana, visited the school on that particular day and checked on educators work including the Applicant’s.
[23] There was a Setswana educator, Mr Hobe, who was very problematic in doing his work and could spend the rest of the year without a file (curriculum; what the educator teaches; learners work; Tests etc. The Applicant brought this to the attention of Mr Kekana who immediately intervened. Mr Hobe was an alcoholic and could spend days without coming to school and rather visit the bar, taverns, etc. Community members could attest to that and even the principal knew about it because he was eventually put on the department’s Employee Assistant Programme (EAP) for rehabilitation at some point. As an HOD she was struggling with that particular educator.
[24] The Applicant testified that her work was to monitor the teacher and she was given an instruction by Mr Kekana that when he leaves the school, she must go and assist Mr Hobe with his file as his was work was totally unsatisfactory.
As an HOD she was supposed to sit with Mr Hobe and go through every document in his new file because alone he would not be able to create a file.
The school photocopy machine was at the time busy with examination papers and she was required to go to town to make a file for Mr Hobe which she later sent on Friday, when both the principal and his deputy were not there at that time. As an HOD she was supposed to sit with Mr Hobe and go through every document in his new file because alone he would not be able to create a file.

[25] Examinations were continuing and Mrs Mokhoebane, a PL-1 Educator, was part of the examination committee. The Applicant requested Mrs Mokhoebane permission to go with Mr Hobe to another school called Gaopalelwe, where another file was to be collected to make copies as instructed by the SES, but she refused and told the Applicant that she had to invigilate.
[26] Mrs Mokhoebane further pulled Mr Hobe preventing him to get into the Applicant’s car. It became physical because Mr Hobe wanted to go with the Applicant but he was been pulled back from getting into the car by Mrs Mokhoebane.
[28] There was an exchange of words and a heated argument ensued. Mrs Mokhoebane ended up taking off her jacket intending to fight the Applicant. The Applicant asked her how she could do such a thing in front of learners. She tried to reprimand her that she is the HOD of Languages in that school and she is bound to help Mr Hobe as part of his work but Mokhoebane said she was a mentally retarded HOD.
[29] The Applicant retaliated by saying that Mrs Mokhoebane did not bath properly and she could not use make-up properly like other women. That’s when Mrs Mokhoebane chased the Applicant at the school’s parking lot and the Applicant could see that she was going to hurt her. She ran into the school building and Mr Hobe came after her and closed the bugler gate to prevent Mrs Mokhoebane reaching her.
[30] The Applicant realised that she was not safe and called the police. The police came to the school and at that time the principal was not at the school. Mrs Mokhoebane continue swearing at her in the presence of police officers who came to the school. Police officers advised the Applicant to open a Crimen Injuria case because she did not want to calm down even when asked to do so by police.
[31] The Applicant then opened a case with the police and the matter went to court and ended there. The principal told the Applicant to write a report and she did as she was instructed but nothing happened thereafter.
[32] The Applicant felt that she was not respected or taken seriously at the school because she was referred to a mad person by her colleagues. She felt that her dignity was tainted and it was hurting for her to know that she was sick but people made a fool out of her medical condition.
[33] The Applicant further testified that Bi-Polar disorder has got to do with emotions and once a person is angry they take an average of two weeks to recover if they are on medication. The employer did not care about her condition.
[34] The work-load was heavy on her and whenever she requested a reduction thereof, she would be perceived as looking for special treatment as if she was the deputy principal of the school.
[35] No person can just wake up in the morning and want to resign after 28 years of service with the employer. She further testified that all her concerns were brought to the attention of the school principal.
[36] She was eventually placed on temporary incapacity leave and at the time she was submitting her leave forms she found that there was a meeting of learners being addressed by the principal. When she entered the class the learners boo-ed at her saying that she was the teacher who was not teaching them. The principal did nothing to reprimand or call them to order.
[37] The Applicant decided to give him the incapacity forms and leave immediately to protect herself as she was not getting any protection from the principal.
[38] Educators who are friends to Mrs Mokhoebane did not want to invigilate the Applicant’s subjects at the time when the Applicant’s child was having Asthmatic attacks. It is normal practice that if one educator is sick or absent for any reason he/she could be substituted or another would in stand on their behalf. These educators are friends of Mrs Mokhoebane and hence they refused to stand in for her.
[39] The Applicant reported to her other colleagues that her child was having asthmatic attacks and that she was leaving to take the child to hospital. She also reported to the principal that she was taking the child to hospital.
[40] During her temporary incapacity leave the Applicant went again to the school to submit forms and when she arrived she found that there was a meeting in the principal’s office. Mrs Makhoana, the Area Office (AO) Manager, came to visit the school and she was with Mrs Ferris, the deputy principal. She knocked before she entered and there was no answer and she entered and found Mrs Ferris giving a report to Mrs Makhoana about the Applicant’s work progress. Other members of the School Management Team (SMT) were also present. She heard Mrs Ferris saying that her work was not satisfactory because she never gave learners tasks and as a result they did not have marks. The Applicant objected and said to Mrs Ferris that the report she was giving was unfair because Mrs Ferris never said anything good about her work.
[41] The Applicant said to Mrs Makhoana that because she is no longer present at the school these people talk bad about her. Instead of calling her and asking her where her work is. An altercation ensued between the Applicant and Mrs Ferris and Mrs Makhoana intervened and reprimanded them to stop it. The Applicant did not remember the exact date of the meeting but could only guess that it was in 2012.
[42] The Applicant reported the problems she had had with other colleagues as well as all the problems she encountered since 2012 to Mrs Sekete-Matokonyane, Mr Gaalo, Mrs Makhoana and Mr Tire. She had also submitted a letter of Complaint to Mr Tire’s which was received by his secretary at the District Office in Vryburg.
[43] There was no response to the letter she had submitted from any of the above mentioned officials. There was no intervention to date.
[44] Mr Motshegare was sent from the Respondent’s Labour Unit while the Applicant was still on sick leave and she met with him at Wolmaransstad, her home town. They met at Wimpy and he told the Applicant that all educators were not having a good relationship with her at the school and he also advised the Applicant to resign. He was in a manner threatening her. Mr Motshegare further told the Applicant that she thought that she was better educated than others and thought she was better than everyone else because she has a Bachelor of Honours Degree because all the letters she wrote she mentioned her qualifications. He also told the Applicant that she was not the first educator to have honours degree in that department. In her mind at that time she thought that Mr Motshegare was there not to resolve her complaint but found that he was there to raise negative issues and to hurt her feelings.
[45] The Applicant told Mr Motshegare that he went to dig up negative issues from her school and brought them to her instead of resolving the issues. She further told Mr Motshegare that she was suffering from depression and what he was bringing was only going to worsen her situation. She even told him that she thought the Department should have sent a woman because she lost a child and instead they sent a man who did not even understood what she was going through. She also told him that he did not even understand what Bi-Polar is or what it means. She further told Mr Motshegare that he was not resolving the problem but was instead increasing it.
[46] The Applicant’s medical team, Psychiatrists and Psychologists wrote several recommendation letters to the employer and she submitted those letters to all the offices but no action was taken to date.
[47] In the years 2014, 2015 and 2016 the same problem of allocation remained the same with no changes in Subject Allocations. Whenever the Applicant tried to raise issues regarding Subject Allocations in the SMT meeting she was never taken seriously.
[48] From page 20 to page 33 of the Applicant’s bundle is the Applicant’s Application Form for Temporary Incapacity Leave Long Period. On pages 20 and 21 the Applicant’s Psychiatrist, Dr H. Smith, diagnosed that her work stress worsens her condition and recommended that the Applicant be urgently transferred to another school in 2013. The principal has also seen the recommendation.
[49] The resignation letter in page 14 paragraph 5 of the Respondent’s bundle was served on the principal and he knows about the recommendations.
[50] The Applicant testified that learners were also influenced by teachers against a particular teacher to cause disruptions in class continuously. Eventually that teacher would be accused of an unprofessional conduct towards learners and staff members. The Applicant further testified that she stood alone hence she was not having a witness from her own colleagues because everyone was instigated against her. She did not have friends because in her department she was very strict/firm and whenever she wanted her work she would tell them that she wanted her work. She was hated by her colleagues.
[51] Some of the teachers did not submit their work and the Applicant disciplined them with verbal warnings and they referred their dissatisfaction to SADTU. The question she asked the trade union was whether it was encouraging teachers not do their work and not teaching learners.
[52] She further testified that the school principal is afraid of teachers, afraid of learners and learners swear at teachers as it pleases them and they would not be disciplined. She said she once charged one learner but her case was never taken to a disciplinary committee while other cases were heard and that showed that the principal had something against her. She was always to be blamed for any wrong doing and to other teacher.
[53] The school principal as the manager, had to manage the school, protect educators against unruly learners and exercise conflict management. There were so many conflicts at the school that the principal could not manage. Educators coming drunk to school and there had been absenteeism but he did nothing. He even used school money to throw parties. The Applicant testified that the principal targeted her because she knew the secret. She said that she once used her bank card to buy liquor for the school at SPAR Tops Liquor outlet and she was refunded by the school. She even told the principal that he was misusing school’s money. She was hated at school because she spoke openly when things were done in a wrong manner. She said she was targeted and was considered to be out of the system.
[55] The Applicant testified that there was no other option but to resign because she had so many incapacity letters, written so many letters to the principal and officials of the Department, stayed for a full year at home, no one called her to a meeting to address her plight, no one ever protected her. She came to the conclusion that this was now affecting her health and her child’s health negatively and the best option was to quit. She even wrote a letter to the Head of Department of Education and Sport Development North West, Mrs Semashwe, but she was not favoured with any response thereof. She therefore had no option but to resign.
[56] The Applicant felt that her rights as a person living with mental-illness were violated and the treatment she received from the employer was unfair and lacked caring about the wellbeing of its employees. She stated that she had been harassed and threatened by the same officials of the department of education and she did not have anywhere to run to. Instead of resolving the problem as a Labour Specialist, Mr Motshegare, told her to resign. She said she had no other option but to go home. Another educator in the SMT, Ms. Totwe, told her that when the principal opened her resignation letter he was also happy for her leaving the profession because he had said that he had received a love letter from Mrs Sekati.
Cross Examination
[57] The Applicant was subjected to a 4 days (03 May, 04 May, 04 July and 05 July 2018) cross examination by Mr Keetile. She was also re-examined by her legal representative Adv. Tutubalang.
[58] The Applicant withdrew her intention to call a medical expert witness and closed her case on 06 July 2018.
06 July 2018
The Respondent called its key witness, Rammutle Griffiths Mosiane, who took stand and testified under oath to the following:
[59] His designation is School Principal at Thutolore Secondary School for about 12 years. He found the Applicant at the same school in 2005 and worked with her as a colleague. The Applicant acted in the position of HOD Post Level 2 for about six months and was later appointed to the same position.
[60] Mr Nhlabathi was a Department’s official who was assigned as a mentor of the school and what they normally do was to analyse the performance of the school and come with suggestions on how to assist the school to perform better.
[61] The session was attended by all staff members and the school would also invite School Governing Body (SGB) members to be part of the Accountability Session. Mr Nhlabathi was leading the process which was organised by the SMT and himself. The SWOT analysis made the session tense but everyone was free to express their opinions.
[63] The Respondent’s pplication to introduce an 8 pages extract from the school’s log book: Problem of Moderation of Task 2 of Gr. 10 Setswana dated 13 February 2008, regarding the Applicant’s testimony that she was not being taken seriously by other educators in the school, was granted as relevant evidence.
23 August 2018
[65] The Applicant’s legal representative submitted that the Applicant instructed him to proceed in her absence.
[66] The witness, Mr Mosiane proceeded on the stand with regard to the Accountability Session. He recalled well the session but could not recall the date. He reiterated that it was an accountability session held during a retreat.
[68] Mosiane was not sure about the allegations the Applicant made regarding what she said in the Accountability Session when she alleged that he failed to intervene on issues where she was involved. According to him the Applicant was not specific in terms of her allegations but what he recalled was that he had never made any changes afterwards.
[69] Mosiane refuted the allegations that the Applicant was over allocated with work load because the Applicant never even reached 80% of the required 85% allocation. The Applicant was allocated 77.8% which is equivalent to 29 periods out of 35 periods. He further testified that there is a formula that the school uses to evenly calculation and apportion work among educators and for HOD it is: 29 / 45 X 100 = 64.4% work load which is way below the required 85% per week. One class in 2017 was also removed from the Applicant’s allocation.
[70] The Applicant’s complaint about over allocation was addressed as per page 23 of the Respondent’s bundle which was read into the record and further explained paragraph 3 of page 24 that the Applicant was part of the Allocation SMT (HODs and Deputy Principal) meeting where the witness said the problems regarding over allocation should have been raised in that meeting as the Applicant and Mrs Ferris were in that Allocation meeting. Mosiane stated that the Applicant was not over allocated her case was considered.
[71] He further testified that he instructed the former HOD Mr Monnagaratwe to intervene between the Applicant and Mrs Ferris regarding their conflict or tension around allocation. He received a report on page 20 of bundle ‘R’ which indicated that both the Applicant and Mrs Ferris lost their cool and Mr Monnagaratwe had to calm them down.
[72] Mosiane was aware of the Applicant’s miscarriage because he received an SMS from the Applicant informing him that she had lost her unborn baby, she was not well and further requested him not to share that confidential information with her colleagues.
[73] With regard to the attempted assault the witness testified that he was not present at the school but the report he got was about the altercation between Ms Sekati and Ms Mkhoebane regarding invigilating. At that time Ms Mkhoebane was in charge of examination and they have an examination committee which runs the examinations for internal classes either in June or November/December periods. That came about invigilating where the Applicant was not available to invigilate at the time she took a teacher to another school, Gaopalelwe, and when Mrs Mkhoebane confronted her about it and altercation ensued.
[74] His intervention was based on the Applicants submissions that she would not take instructions from a junior educator and Mosiane had resolved that from then examination committee should only be led by SMT members which could only be beefed up by Post Level 1 Educators.
[75] Mosiane denied ever ignoring Applicant’s sick notes.
[76] Regarding the set date to collect the file from Goapalelwe School with Mr Hobe the witness was not aware of that but indicated that the Applicant went there at the time she was supposed to invigilate there by neglecting her duties. Even though the Applicant was having something pressing and there was an examination to invigilate, she would have to report to the chief invigilator. Educators would have to report on time because the examination invigilation time table is also drawn in advance so that should they not be able to invigilate, prior arrangements to bring someone to step in for them be done so that an examination session is not left unattended to.
[77] It is the witness’s take that the Applicant went to the police without first coming to his office.
[78] Mosiane testified that at high school when learners are not taught they would complain. There is a policy of the Department that the school would only qualify for a substitute educator whenever a person is absent for too long and submitted a medical certificate and longer days of absence. If it happens that the sick notes are of a shorter period then they would not get a substitute post. When sick notes are of segmented periods learners would complain that they are not been taught and they could not be stopped from raising their concerns. He however said that they had informed the learners that the Applicant was on sick leave and it could not be true that he had not intervened while at the same time he could not stop them from expressing their concern.
[79] The witness denied the version of the Applicant there were educators that refused to invigilate on her behalf while she took her child to hospital because whenever there was a formal examination they would draw up a formal invigilation time table. Once it is drawn it would be an irregularity when educators do not invigilate. On 06 June 2012 an examination was written and invigilators were assigned unless the Applicant made her own arrangements. It is unlikely that learners could be left alone in an examination centre because they have to be issued with examination question papers by the invigilator and taken back by the invigilator.
[80] There was also another intervention by then Circuit Manager at their cluster, Mr Galo, regarding a follow up on the Applicant’s complaint and she could not be reached as she was not at the school at the time. Another mentor and Area Office Manager, Mrs Makhoana once came to the school but not specifically for Madam Sekati but would normally get updates about the school. The issue of the Applicant was also raised with Mrs Sekete-Matokonyane who was a circuit manager at some point in time, Mr Motshegare as a Labour Relations Practitioner and also Mr Bafanah, the circuit manager intervened.
[81] Other evidence of interventions were referred to Exhibit ‘A1’ which was a letter dated 09/07/2012 addressed to the Assistant Manager Labour Relations Dr Ruth Segomotsi Mompati District by the Area Office Manager, Makhoana K.M. with the subject: ‘Request to investigate’ –Thutolore Secondary School based on the Applicant’s complaint. The letter was read onto the record by the witness.
[82] The request for urgent intervention, Exhibit ‘A2’ was also read for the record. Exhibit ‘A4’ which is a written complaint by a Mrs Tshite about Task 2 moderation given to the Applicant on 11 February 2008 and when she went back to collect it she found the Applicant had not moderated the task. Now because of the challenge of the resources she decided to proceed with task 1 moderation. A quarrel arose and the witness said he intervened after Ms Sekati came to complain, brought the two together and the matter was resolved. He said it was one of the interventions he made.
[83] Mosiane further testified that the version that the Applicant was not taken seriously was not correct.
83.1 Mr Hobe had an alcoholic problem and when disciplinary action was instituted against him he decided to resign.
83.2 Mr Mogotlhe T.B. was also disciplined with written warning on 05 November 2010 for unauthorised absence; and
83.3 Mr Mokodue T.S. was disciplined for failure to complete marking and submit scripts as well as failure to take reasonable instruction on 09 December 2016.
[84] The Applicant was part of the witnesses that he had disciplined the latter staff members. Mosiane disagreed with the version that there was no discipline at the school because where there was misconduct he acted.
[85] He denied ever authorising the Applicant to use her bank card to buy alcohol for the function at the school.
[86] Mosiane also disagreed with the Applicant’s version that she did her work diligently in her overall work performance because he had a number of outstanding marks from the Applicant where she could not even complete the schedules due to outstanding marks she had. She would always complain about the workload and it’s unfortunate that when an educator is behind with the schedules, results could not be issued to learners. Analysis could also not be completed which eventually was not submitted to the district, from the district no submissions to the province and finally none to national department.
[87] The witness was referred to page 27 of bundle ‘R’, second paragraph, which he read into the record as follows:
“We further discussed the problem of marking of Grade 9 and Grade 12 scripts because submissions of quarterly results were due on 22 July and 27 July respectively. I visited madam on the 8th July 2011 at home and I was at Vryburg and tried to find her on the phone in vain. The reason for visit was, a) to check on her and make a follow up on her health; and b) Discuss scripts for marking.” The madam she referred to she had visited was Ms Sekati. He made a follow up on scripts (Grade 9 and Grade 12 English scrips) because they were not yet submitted. He went on to read paragraph four as follows: “Ms Sekati was not prepared to discuss her Monday incident. She collected scripts from school so that she could go and mark. I expressed my disappointment on her failure to collect scripts from school since her leave ended on 23 June 2011. She made no means over the holidays to come and collect scripts. Mr Sebe was almost always at school and he gave them the Grade 9 marking guidelines of LLC 1. Grade 12 paper 3 scripts were nowhere to be found. She would then mark paper 1 and paper 2 scripts in the meantime, while we try to trace the missing scripts. If found they will be retested or assessed again in the third term.”

[88] The scripts were not submitted on the 22nd. (sic)

[89] On page 21 is the recommendation for the Applicant to be transferred and he reiterated that as he had already testified that this document was not a transfer document but an Application for Temporary Incapacity Leave for a person who had exhausted his or her leave. It was not an official form for transfer.

[90] On page 21 is the recommendation for the Applicant to be transferred and he reiterated that as he had already testified that this document was not a transfer document but an Application for Temporary Incapacity Leave for a person who had exhausted his or her leave. It was not an official form for transfer.

Cross Examination

[91] Mr Mosimane was subjected to cross examination by Advocate Tutubalang and re-examined by Mr Martin Keetile.

21 September 2018

[92] The Respondent’s representative made an application to introduce a document to be accepted as evidence in this arbitration. The Applicant party was afforded 15 minutes to study a seven page document and did not oppose the document’s admission as evidence in this arbitration. The document was accepted and named Exhibit ‘C’

The Respondent’s second witness, Veyonny Rochelle Ferris, took stand and testified under oath to the following:

[93] She is Deputy Principal at Thuto-Lore Secondary School at Bloemhof and she is the Head of Curriculum. She knows the Applicant very well as her former colleague at the same school and HOD of Languages.

[94] The witness testified that she had no full account of what transpired during the Accountability Session because at that time she was on maternity leave. She only heard about it. There were several incidents between Ms Sekati and Mr Moshe regarding subject allocation. Ms Sekati would come and complain about being overloaded with work and some of her work would be given to Mr Moshe. Mr Moshe would also in turn and complain that he was then the one who had been overloaded.

[95] Mr Moshe would also be of assistance in the frequent absence of Ms Sekati. When Ms Sekati returned from sick leave she would take the attititude that she did not need any assistance from anyone and people were offended, and in the end when they try to assist, still another problem comes out.

[96] There were many conflicts arising between Ms Sekati and Mr Moshe and the witness could not specifically refer to one incident. Instead she said what should be understood was that both Sekati and Moshe were candidates of the interview of the HOD post. In 2009 Ms Sekati was still acting in the HOD post. One incident would be when she relieved Ms Sekati from her workload and added to Mr Moshe’s allocation and they would have some exchange of words and after she was permanently appointed HOD she would refer to them as paid HOD and she was not like them just acting. People were offended and there were so many exchanges of words.

[97] As a person in charge of allocation she was directly involved in these conflicts and whenever one arises they would deal with it even in schools like theirs, educators would want to teach Grade 12 and it was impossible to allocate it to all educators. After Ms Sekati was appointed HOD in July 2010 she was absent for three years. During that period Mr Moshe and other educators were assisting the Applicant and when she came back she would say that she did not need their help as she was a paid HOD and those were issues that caused conflicts.

[98] Allocation of subjects was an ongoing annual discussion because the procedure at their school is that HODs sit down and allocate and from there she would consolidate and balance everyone’s workload. That was in line with the policy and for an example if one takes a PL 2 Educator and allocate a percentage of 70% to 85% of work, Ms Sekati as HOD was then never overloaded. There was an instance where she was at 60% which was far below the minimum requirement. She had a meeting with the Applicant to indicate to her that she was under allocated and she needed to balance her work with other educators and there were other administrative work she was supposed to have submitted but did not do so. Mrs Ferris said she wrote a report to that effect as reflected on page 15 of bundle ‘R’ paragraph 3 talking about concerns she raised about the Applicant. The class lists to divide learners was not completed, the department would call daily to assess the roll of learners and classes available in the school and the it was not taken daily and submitted as requested; the number teachers the school was going to need for those learners which is vital for the school; class lists for 2009 were not submitted; The HOD was under allocated at 60% workload; the tension between Ms Sekati and Mr Moshe was increasing when more English was added to Mr Moshe’s allocation; Her response was like autocratic that she did not need anybody to assist her; On several occasions when the witness would want to discuss or talk to the Applicant, she would just switch her off telling her ‘No, not Now’.

[99] Page 35 of bundle ‘A’ indicates that the Applicant was at 77,8% subject allocation in 2016 and which still shows that she was not at 85%. She had two Grade 8 classes and at the time the Subject Allocation for 2016 was drafted one class of Grade 8 had already been taken from her. She was then teaching one class of Grade 8.

[100] Page 29 of bundle ‘R’ is printed from ‘sans’ where the principal gives them a summary of all the allocations and not really the one she works with but the document is more or less the same as Subject Allocation she works with. It indicated that the Applicant was allocated 27 periods out of 45 required and she was not over allocated.

[101] Page 36 of bundle ‘R’ also indicates that the Applicant was on 29 periods out of 45 maximum but reflected on a different version and she was still not over allocated.

[102] Ferris testified that she came to know about Ms Sekati’s miscarriage some time latter after it had occured. She previously had an informal discussion with her at her office after school where she indicated to the Applicant that she was under allocated and that she needed to correct that. She said the Applicant was positive that day because normally should would be very emotional and you could not talk because she would be shouting and screaming and they would not advance on anything. That day she was very positive, she listened while Mrs Ferris was talking and they had a fruitful discussion and she left.
[103] The following morning the principal told her that he had received a sms that Ms Sekati had been hospitalised but did not disclose anything. The Applicant had called Mr Monnagaratwe, the former HOD of Science, to ask for his intervention but she could not understand as she was still confused because they discussed and talked. A meeting was arranged which she was not aware of and she was told she must meet with Mr Monnagaratwe and Ms Sekati and she was asking herself what the agenda was. She learned that the agenda was allocation but was now surprised as she was asking herself whether she did not deal with it with Ms Sekati.
[104] Mrs Ferris attended the meeting where Madam Mogatusi (Acting HOD) and Madam Kordom (HOD) were present in the boardroom and knowing the Applicant how emotional she could be, she proposed that they both remain and be part of the meeting. The Applicant was not comfortable to discuss the matter in the presence of other colleagues but preferred to be the two of them. Mrs Ferris agreed with her and the others left the boardroom.
[105] In that meeting the Applicant wanted her allocation to be 60%, which is the level of a deputy principal, whereby she said to her but that was policy she needed to implement and where she thought they have made an advancement but seemingly they were back again at allocation. The Applicant then started the allegation that Mrs Ferris killed her child and the witness said to Mr Monnagaratwe that she was shocked and devastated as she understood the agenda was subject allocation and the Applicant was now coming with serious allegations that she killed her child and thrashed at her. Mrs Ferris said that she was emotional and a part of her regretted afterwards and thought if the principal had said something she could have been sensitive and kept her mouth shut and she also angry and told the Applicant how she could accuse her of something like that and prove it. She told the Applicant, when she left her office she was fine and these stresses are not one day stresses because these things have been coming for a long period and how could she say she was the one who caused her miscarriage.
[106] The Applicant was furious and the witness ended up telling her that she was not going to entertain that. She felt highly offended by the Applicant’s accusation. The Applicant wanted to sue her for the loss of her unborn baby and Ferris told her that she may go ahead if she could medically prove it. That story subsided until her resignation.
[107] Mr Monnagaratwe was embarrassed by both the Applicant and Mrs Ferris conduct and both became too emotional and the meeting could not continue with the two of them. She said she was so sad that the Applicant could accuse her and it ended there and they went out. She could not say anything about the miscarriage and left it there.
[108] The testimony presented by the Applicant that there was never a meeting between herself, Mrs Ferris and Mr Monnagaratwe, Ferris said she had provided the evidence of minutes that Mr Monnagaratwe wrote, a report he wrote. Ferris said he also recommended that they both be charged for behaving in an unprofessional manner. She confirmed that there was a meeting between the Applicant, herself and Mr Monnagaratwe on 05 February 2009.
[109] With regard to the testimony of the Applicant that Mrs Ferris never communicated with her directly but did so through her subordinates she said each teachers case was unique and had its own merits and after the case they had she told herself that she had to be more careful and need to find more sensitive manner to approach Ms Sekati because it was going to be bad. She said she would communicate via a circular or send reminders out and like she indicated earlier on that when she would go to Ms Sekati at the laboratory, she would switch her off. She would tell her who does she thought she was and she would tell her that she is the senior. There were so any emotional outbursts and somewhere somehow she had to treat her with care and not to provoke her. She communicated relevant information to Ms Sekati. She sometimes did not go directly to her and due to the nature of her case she had to treat her more sensitive avoiding to fight as members of the SMT and someone got injured. She said she was afraid of many things.
[110] Mrs Ferris testified that all what she knows was their school needed a lot of attention, they have been trapped and she tried to restructure through subject allocation. She created many enemies every year because of allocation as educators would hate her because of allocation but in the end she acted in the best interest of learners. She would be accused of incompetence where she pleaded with the subject advisor who wanted to remove Ms Sekati in 2017 and told the subject advisor that it was going to be an emotional setback. It turned out that that the Applicant was incompetent and they had to restructure. She said the Applicant might be correct that things were not right at the school but they were no longer trapped and they are now seeing positive results. Every school would have conflicts and challenges and it could not be denied but she could not please everybody to give them what they want. Many teachers are chronic patients in the school and she has to treat them with care and not just one person.
[111] The Applicant threatened everybody at the time she left that she was going down with everybody and as she was leaving they were all going to go. She had a court case with another educator because they fought each other though she did not know what happened.
[112] Mrs Ferris acknowledged that the Applicant was a good manager and she could not take away that from her. She further testified that she had the ability, she is qualified, she is skilled but her leadership style was autocratic which in itself caused a lot of conflicts in the Language department. She could therefore not conclude that Ms Sekati was perfect as she claimed to be. She had everything but her demeanour, response, the way she would interact, human relations she was not perfect.
[113] The Applicant contributed negatively to the development or progress of the school because she would be absent being sick and not submitting sick notes. In some instances she would be on sick leave for more than 26 days consecutively and the principal would run after her to get the sick notes so that a replacement could be found. Even in the quality of teaching she contributed negatively due to her autocratic style of leadership. Therefore she was not doing what she was supposed to do. A lot of stress she had was self-inflicted because of poor time management and lack of commitment.
[114] If anyone who tried to help her that person would be lashed out at and she was not contributing positively. She would not even complete the curriculum of learners, like in English, she would only choose what she wanted to teach learners.
[115] Mrs Ferris disagreed that the Applicant was the best and only teacher doing what is right for the school and other teachers were not. She would not be in the position she is if she was the best teacher and they would have celebrated the National Teachers Awards, she is not true to herself in that regard.
[116] The Applicant did not go for any form of new curriculum training and when she comes back from sick leave she allocated herself for Grade 12. When she puts someone to assist her she would remove that person. Her conduct was not building but somehow brought divisions among educators. She would not plan for invigilation and would come and accuse people for not invigilating.
[117] In terms of performance Mrs Ferris said the Applicant was not at her best because in Languages learners are not that bad in general and they read on their own in most cases but still she would at some stage fail to complete the syllabus. She would skip parts that should be taught to learners and expect them to be examined on them. This happened in one other year and the Department of Education picked it up and come down very strong on them.
Cross Examination
[118] Mrs Ferris was cross-examined by Advocate Tutubalang and re-examined by Mr Martin Keetile.

08 November 2018
The Respondent’s 3rd Witness, Paul Motshegare Motshegare, testified under oath to the following:

[119] He is the Labour Relations Practitioner. His duties among others is to represent the Employer in disciplinary hearings, investigate cases as they are brought to their office and he basically deals with employee misconduct.
[120] He confirmed that he had met Mrs Sekati (Applicant) in January 2013. The reason for the meeting was that they had received a communique stating that one educator at Thuto-Lore School was complaining about unfair labour practices mooted out against her by the employer. As part of his duties he had to go out and investigate the complaint laid by the employee.
[121] The request to investigate came from the then labour unit offices now call Sub-district Office in Taung from Mrs Makhoana, the Area Office Manager at the time (currently Sub-District Manager).
[122] The witness was then referred to Exhibit ‘A2’ where he indicated that the document comes from the Area Office Manager of Greater Taung signed by Makhoana K.M., AO Manager. Mr Motshegare read the document into the record as follows:
“I am in receipt of your letter dated the 2nd July 2012. Kindly be informed that your matter has been referred to Labour unit at the District office for investigations, as some allegations constitute very serious misconduct. Hope you find this in order.”
[123] Mr Motshegare refuted allegations that there was no intervention in the Applicant’s case because if that was the case, he would not have been brought into the picture. He was further referred to Exhibit ‘A1’ which he recognised its author as Makhoana K.M., AO Manager Taung. The letter was directed to the assistant manager labour relations of Dr Ruth Segomotsi Mompati District, at the time Ms Botlhale Raikane. Mr Motshegare read the contents of the letter into the record as follows:
Dated 09/07/2012
“Subject: Request to Investigate – Thuto-Lore Secondary School”
“This communique serves to request your esteem office to investigate allegations against some staff members. It is alleged that Ms Sekati is ill-treated by some staff members; Some staff members are behaving in an unbecoming manner against the said educator. Please refer to the attached correspondences/reports. You are therefore humbly requested to investigate this matter. Counting on your usual support.” The principal and the acting circuit manager, Ms Sekete Matokonyane, were copied on this one.
[124] Mrs Sechele was the Assistant Manager and Mr Motshegare’s supervisor at the time, would receive cases and allocated them to two or three practitioners and the Sekati matter was allocated to him. He also confirmed that he met Ms Sekati over the matter.
[125] Mr Motshegare was referred to page 11 of the ‘R’ bundle paragraph 3.8 which he read as follows: : On that note Mr Motshegare was sent but threatened me and made a verbal recommendation that I must resign.” Mr Motshgare stated that in the meeting they had at a restaurant in Wolmaransstad, the purpose was to investigate the complaint the Applicant had lodged against the employer. The allegations that he threatened her to resign and her qualifications were irrelevant because ‘dwelling into such would have made him loose the purpose of meeting her’.
[126] The mandate from the department was very clear that he must go out to try and assist the Applicant in resolving serious allegations of discriminatory practices in the workplace. Mr Motshegare indicated that it was startling and strange to be confronted by matters of qualifications and it was not personal but purely professional interaction they had. He reiterated that he was shocked by these allegations that such a noble interaction could be turned into some intimidation and he was equally disappointed. He would not do such a thing as he upholds professional ethics to the highest esteem and that is why he is still in the position after many years doing this work.
[127] The venue of the meeting, a Wimpy restaurant at Wolmaransstad, indicated the mood of the meeting and the Applicant purcahsed a juice for Mr Motshegare. It was a quiet a conducive atmosphere to iron out issues of that nature.
[128] Among the issues that they discussed was that the Applicant was on sick leave and the problem he came across at school was that the principal indicated to him that there were staff members she was communication with her as she was more visible in the social media and there was a question posted to say that she is very active sending messages that life was good and palatable at her side while other staff members are doing her work at school. Mr Motshegare advised her to minimise her active participation in social media because that was seen by her colleagues as provocation.
[129] Mr Motshegare testified that the Applicant became furious and told him that it was her private life and questioned him whether he also wanted her to tell him whom was she sleeping with. He thought that the advice to minimise her involvement was what angered her. At that point she threw her medication at Mr Motshegare across the table.
[130] Mr Motshegare was referred to Exhibit ‘C’ which is a report on the ‘Request to Investigate’ directive from the AO Manager of Greater Taung and indicated that he is the author of same and signed for it.
Cross Examination
[131] Mr Motshegare was subjected to cross examination by Adv. Tutubalang and re-examined by Mr Martin Keetile.

08 November 2018
The Respondent’s 4th and last witness, Orudile Patrick Monnagaaratwe, took stand and testified under oath and said:
[132] He is the principal of Botlhaping Secondary School at Greater Taung District.
[133] He came to know Ms Sekati when he came to work at Thuto-Lore Secondary School transferred from Obang Secondary School in 2005 as HOD then.
[134] Mr Monnagaaratwe did not agree with the statement that he Applicant said there was no intervention regarding the problems she encountered at the school. He stated that he was engaged in assisting the principal as a member of the SMT at Thuto-Lore Secondary School on numerous occasions and the more formal one was when he was delegated on that one where he had to table a report to the principal.
[135] The Witness was referred to page 20 of bundle ‘R’ which is the report he wrote and was signed by him. The intervention reported took place on 5 February 2009. At the beginning of the academic year in 2009 Ms Sekati was on leave for several days not consecutively and when the allocation for the year was to be finalised, as HOD and head of Languages, there were instances where she was not in the plenary meetings and thus not engaged on other plenary issues. She could not get all the information from the plenary sitting due to her absence.
[136] The HODs were expected to submit reports pertaining to the submissions made by their subordinates according to their respective departments to the deputy principal. At the time the Applicant reported for duty she had to submit her departmental report and the witness picked it up in the morning when she was questioning the deputy principal as to why she did not convey the message to her. In that afternoon the principal was not at school as he had to submit other documents to the district office in Vryburg and that was the time a fierce argument broke out between Mrs Ferris and the Applicant. The principal then asked him to intervene and that was how he got involved in the intervention.
[137] Argument broke out where Ms Sekati alleged that it was unfair for her to submit reports of meetings that she was never part of and was never told about. The person who was responsible to have informed her about the meetings was the deputy principal. Another reason for the principal to delegate the witness to intervene was that Mrs Ferris had previously stated in a meeting where the Applicant was not part of that she would not sit in a meeting where the principal was presiding over. Mrs Ferris felt that the principal would be biased and that problem was never attended to by anybody because the principal himself is their supervisor.
[138] Monnagaratwe thought the purpose of the meeting was about the Applicant’s complaint about the deputy principal not sharing information with her but he picked up as contained in his report that the Applicant had a communication channel between herself and the deputy principal. She alleged that the deputy was afraid to issue instructions to her and other personal issues cropped up where the Applicant put a blame on the deputy principal that she had caused her stress due to lack of proper communication between the two. Monnagaratwe wanted to check what the Applicant was referring to because that was the first time he heard about it and Mrs Sekati blamed Mrs Ferris that she had caused to lose her unborn child. He stated that he explained to the Applicant and Mrs Ferris that the allegation would need scientific evidence to be proven.
[139] Mr Monnagaaratwe stated that he could not assist in mediation because of the conduct of both the Applicant and the deputy principal made it difficult for the meeting to achieve its intended purpose. He was referred to page 22, the End Point paragraph of the Mediation Report, and read it for the record as follows: “The meeting failed to reach its objective as the two parties affected were too emotional and intolerant to each other.”
[140] Mr Monnagarawe testified that he was mandated by the school principal to look into the communication problem between Ms Sekati and Mrs Ferris and how best it could be addressed as well as the issue of subject allocation and look how it could be resolved in order to assist Ms Sakati. Monnagaaratwe said he could not resolve these two issues between the two because they were both emotional which led to the meeting not achieving its intended objective. The issue of allocation of subjects the Applicant complained about was looked into but still could be produced the intended results.
[141] Mr Monnagaratwe said that he had to compile a report and submit it the next day to the principal as to what had transpired in that meeting. The next day Monnagaratwe tabled the report and presented it to the principal. The Applicant wanted to be given the teaching percentage that was in the bracket of the Deputy Principal which is not according to him required information.
[142] The main concern of the Applicant was that as the HOD she was not supposed to be allocated more than her subordinates because on the one hand she had to supervise and manage. The policy also stipulates the percentage an educator should be allocated.
[143] After numerous interactions between the principal and the two ladies in the absence of Mr Monnagaaratwe, as he was also assisting the principal in the many areas, he said that there was also a contestation of Grade 12 allocation among the educators whenever the school reopens at the beginning. The initial allocation for the Applicant was fair within the bounds of an HOD.
[144] Mr Monnagaaratwe was cross examined by Advocate Tutubalang, and re-examined by Mr Martin Keetile of the Respondent.

The Respondent rested its case.

ANALYSIS OF EVIDENCE AND ARGUMENTS
[145] Section 186 1(e) of the Labour Relations Act 66 of 1995 (as amended), provides the meaning of dismissal to mean that an employee terminated employment with or without notice because the employer made continued employment intolerable for the employee.
[146] The dispute falls within the parameters of the above authority.
[146] In Strategic Liquor Services v Mvumbi NO and others 2010 (2) SA 92 (CC), (2009) 30 ILJ 1526 (CC), the Constitutional Court held that the test for constructive dismissal does not require that an employee must have had no choice but to resign, but merely that the employer should have made continued employment intolerable for the employee.
[147] The Court in UNISA v Ngcingwana and Others (JR2519/14) [2017] (LC) (handed down on 23 March 2017) outlined the relevant steps into an inquiry pertaining to constructive dismissal and held that the starting point for the determination of constructive dismissal disputes, like any other dismissal dispute, is the determination of the existence of a dismissal. If positively determined, the fairness test is to be applied. Fairness is to be applied with reference to the conduct of the employer and the effects thereof on the employee i.e. the commissioner ought to seek answers to the following questions:
a) whether the employer was guilty of the conduct complained of;
b) whether the conduct of the employer rendered the continued employment relationship intolerable; and
c) whether there were no other alternatives for the employee but to resign.
The above questions can only ever be satisfactorily answered when adopting a holistic review of the evidence before the commissioner.
[148] The Applicant resigned on 15 September 2017 and had left the service of the employer. The Respondent had accepted her resignation which was therefore not placed in dispute.
Whether the employer was guilty of the conduct complained of
[149] The Respondent’s key witness, Rammutle Griffis Mosiane started off his testimony with regard to the Accountability Session of 2008 that was a retreat hosted by Mr Nhlbati and himself that he was not sure about the allegations made by the allegations at the session. This is in contrast with the version of the Applicant that they were required to submit progress reports as well as give challenges they face in their respective departments. The allegations made by the Applicant were as follows:
i) She was not taken seriously as an Acting HOD;
ii) Her report at the Accountability session was mainly based on the conduct of Mr Mose which she said both the principal and her deputy did nothing to remedy the situation.
Mosiane could vividly recall that it was a retreat session within Accountability building but could not be sure as to what the Applicant alleged even though the HODs were required to submit progress reports as well as the challenges they face in their respective departments. He was also able to remember that the SWOT analysis made the session to be tense. For Mosiane to testify that the Applicant’s allegations were vague is naïve as he could have referred to the minutes of the accountability as a co-host or the reports on the progress and challenges the HODs were required to submit in that session.
[150] The Applicant was specific in the allegations she made against Mosiane that he failed to intervene and he could not successfully rebut the version of the Applicant. The deputy principal testified that she had no full account of what transpired during the Accountability Session because at that time she was on maternity leave. She only heard about it.
[151] The testimony of the principal and his deputy that the Applicant did not even reach 80% of allocation of work out of the required 85% is neither here nor there because no evidence was led to suggest that one HOD was allocated 80% of work, let alone the required 85%. It is Mosiane’s testimony that there is a formula used by the school to allocate work to HODs as well as other Educators and for HODs it is 29 ÷ 4 X 100 = 64.4% which is way below the required 85% indicating that the Applicant was never over allocated. No evidence was presented to show that the Applicant was at 64.4% at some stage because the only evidence provided was the 2016 subject allocation on page 35 of the Applicant’s bundle that shows the Applicant’s allocation at 77.8% with 35 classes. Other HODs, Kordom was at 75.5% with a total number of classes at 34; Nkomo was at 66.7% with 30 classes. Surely the Applicant was more allocated that her peers.
[152] Mosiane testified that one class was taken from the Applicant in 2017. This then would indicate that the Applicant’s total classes were 34. Mathematically speaking this would have put the Applicant at 75.5% which is the same as Kordom. What Mosiane did not tell this arbitration was how many classes were allocated to each HOD in 2017 in order to successfully rebut the Applicant’s version that she was over allocated.
[153] It was the evidence of Mrs Ferris that on page 36 of the Respondent’s bundle shows the Applicant’s 2017 allocation was 29%. This is a very wide contradiction in percentages if what Mosiane testified on is put into percentages.
[154] Ferris testified that there were a lot of conflicts created by the allocation of subjects between the Applicant and Mr Moshe where she would intervene and resolve the matter. She also testified that after the Applicant was appointed HOD in 2010 she was away from school for three years and Mr Moshe and other educators had to step in and assist and when the Applicant returned from sick leave she would then tell those who were assisting that she did not need to be assisted.
[155] Mosiane also intervened in the Applicant’s grievance of over allocation dated 10 March 2011 as per page 23 of the Respondent’s bundle. He involved Mrs Ferris who eventually re-allocated one Grade 11 Life Orientation (LO) to Ms Ramafoko and 2X Library of Grade 8 to the Applicant. Mosiane was of the view that the Applicant was part of the allocation meeting but failed to raise her concerns there. The Applicant’s allegation that the principal did nothing about her allocation problem fell short.
[156] Mosiane further mandated Mr Monnagaratwe to intervene in the tension between the Applicant and Mrs Ferris with regard to over allocation she complained about. The Applicant did not regard the meeting as an intervention but again could not tell this arbitration as to what she referred it to. Mosiane did receive a report regarding the intervention by Mr Monnagaraatwe.
[157] The attempted assault of the Applicant by Ms Mkhoebana that took place at the school happened in the absence of Mosiane and he indicated that he intervened by restructuring the Examination Committee with SMT members as its leaders after the Applicant complained that she would not be led by her juniors and it would only be beefed up by PL 1 educators when the need arise.
[158] Mosiane’s testimony was that he was not aware that the Applicant had to accompany Mr Hobe to Gaopalelwe to get a file there because she had to invigilate an examination. He stated that though there was a pressing matter an educator was required to report to the chief invigilator and bring a replacement so that the examination was not left unattended. The Applicant’s testimony was that she reported to the invigilator and it was an emergency that she had to go with Mr Hobe as per the subject advisor’s instruction but the invigilator, Ms Mkhoebana, would not let her go. This version was not successfully rebutted by the Respondent.
[159] Mosisane’s testimony that they have informed learners that the Applicant was on sick leave and that they could not stop learners when they raise their concerns due to lack of teaching, leaves much to be desired because in the Applicant’s testimony the learners were booing at her when she submitted her medical notes. She felt threatened and stepped out of the class where Mosiane was in with the learners. Mosiane did not tell this arbitration as to how he intervened in that incident as a custodian of discipline in the school. It would have been fair if Mosiane had called the Applicant into the class room and reprimanded the learners in her presence there and there. Being booed at and raising concerns are two poles apart. Booing an educator by learners is an indication of ill-discipline behaviour that needed to be dealt with immediately.
[160] The Applicant’s version that other educators refused to invigilate her subjects could not be sustained because the examination committee would not leave a class to learners to issue themselves exam papers and write and collect the answer sheets on their own.
[162] Mosiane was not clear in his testimony that there were other interventions by the Circuit Manager, Mrs Sekete-Matokonyane and Mr Bafanah, also a Circuit Manager. Motshegare was called as a witness but the two circuit managers interventions were not explained as to when they took place, where and how were these interventions conducted.
[163] He also pointed to Exhibit ‘A1’ which is a letter written by the Area Office Manager Makhoana on 09 July 2012 with the subject: “Request to Investigate Thuto-Lore Secondary School”, as evidence to show that the employer did intervene in the problems the Applicant raised. The ‘Request for urgent intervention’ letter, Exhibit ‘A2’, was also a response to the letter of complaint the Applicant wrote dated 2nd July 2012. Mr Motshegare of the labour unit was then mandated by the Labour Unit to investigate.
Exhibit ‘A4’ is also evident that the principal did intervene in the ‘Moderation of Task 2of Gr. 10 – Setswana’. The Applicant’s allegations that the principal did nothing to address the issues she raised becomes a toll order for the Applicant to discharge its own onus regarding this issue.
[163] Disciplinary action was taken against Mr Hobe but he resigned before he could be formerly brought before a disciplinary hearing. Mr T.B. Mogotlhe, was disciplined for failure to complete marking and submit scripts as well a failure to carry out a reasonable instruction. Mosiane testified the Applicant witnessed these disciplinary actions as she was present. The Applicant could not successfully sustain the probability of this part of her evidence.
[164] Mosiane denied that he ever authorised the Applicant to use her bank card to buy alcohol for the function at the school but he did not challenge the fact that the Applicant was refunded by the school for that particular transaction let alone the transaction receipt that was not shown to this arbitration. Though it was the Applicant’s word against that of the principal, given the above conclusion, her version becomes more probable.
[165] Mosiane further disagreed with the version that the Applicant did her work diligently in her overall performance because she was having a number of outstanding script marks, she could not complete the schedules due to outstanding marks, she always complained about workload. Mosiane was referred to page 27 of bundle ‘R’ which also referred to the period the Applicant failed to collect scripts to be marked in June 2011. This was an isolated incident to conclude that the Applicant was underperforming in contrast to the testimony of Mosiane that she always underperformed. Complaining about workload cannot be attributed to poor performance. No evidence was led that the Applicant underperformed even in previous semesters or after July 2011. The Applicants version that she did her work more diligently in her overall performance is more probable than the testimony of the Respondent’s key witness.
[166] Pages 17 to 33 of the Applicant’s bundle is the Application for Temporary Incapacity Leave. On page 21 of the document is the recommendation for the Applicant to be transferred and Mosiane reiterated that the document was not a transfer document but an Application for Temporary Incapacity Leave for a person who had exhausted his or her leave. It was not an official form for transfer. The Applicant testified that her medical team, Psychiatrists and Psychologists wrote several recommendation letters to the employer and she submitted those letters to all the offices but no action was taken by the employer. This arbitration had not heard the Respondent’s response to the recommendations to transfer the Applicant from a stressful environment. Remaining tight lipped about what medical professionals, Psychiatrists and Psychologists recommended to the Applicant’s condition is a total demonstration of an uncaring employer to the wellbeing of its employees. A simple response that the employer was looking into the medical recommendations and would revert back to the Applicant in due course or at a specific time frame, would have gone a long way to give the Applicant some form of relief and confidence that her matter is been taken seriously. The employer is therefore guilty of turning a blind eye on the medical recommendation made regarding the condition of the employee.

[167] The testimony of Mrs Ferris that the Applicant was never at the required 80% to 85% allocation is irrelevant because the Respondent had not shown that there was any other HOD who was allocated up to that percentage at Thoto-Lore Secondary School. It also contradicts the testimony of Mr Mosiane that school has an allocation formula for HODs of 29 ÷ 45 X 100 = 64.4. The evidence presented indicated that in 2016 the Applicant was at 77.8%. Even the required number of periods that she taught 29 out of the required 45 periods could not fly because no other HOD was shown to have taught the required 45 periods. The Applicant’s version that she was over allocated becomes more probable.

[168] The allegation that Mrs Ferris caused the Applicant’s miscarry her unborn child is frivolous and vexatious because the Applicant had withdrawn to call a medical expert witness to verify her allegation.

[169] The testimony of Mrs Ferris that the Applicant contributed negatively towards the development of the school due to her being sick and without submitting sick notes and the principal had to run after her for them is without substance and is baseless. The principal had not presented such evidence to this arbitration that from time to time when the Applicant was sick he had to run after her for sick notes.

[170] The Applicant’s testimony that there was not intervention or meeting that took place between her, Mrs Ferris and Mr Monnagaaratwe came out not to be true as it was Mrs Ferris testimony that the meeting took place on 5 February 2009. The Applicant was part of that meeting though it never reached its intended purpose. Mrs Ferris would not have known about the allegations that she was the cause of the Applicant’s miscarriage.

[171] Ferris further alleged that the Applicant would not complete curriculum of learners and would only choose what she wanted to teach them. This is a serious misconduct allegation which Mrs Ferris never took action on and this goes to the allegation that there was no discipline in the school. She never testified as to what she did to discipline the Applicant on this misconduct. Turning a blind eye on this serious misconduct was not in the interest of the school child. The testimony amounts to bad mouthing rather than showing that the Applicant was never prejudiced in any manner in doing her work.

[172] It is common cause that Mr Motshegare met with the Applicant but the intervention as per the department’s mandate could not bear positive results to resolve the problems the Applicant was complaining about. He said that what triggered the bad mood when they were in a meeting with the Applicant at Wimpy restaurant at Wolmaransstad was when he told the Applicant that she had to reduce her involvement in the social media saying life is good on her side while she was on sick leave and her colleagues where complaining to be doing her work.
[173] Motshegare indicated under cross examination that the information that the Applicant was on social media and saying that life is good from her side was obtained from the principal. At no stage in Mr Mosiane’s evidence-in-chief did he mention that educators were complaining about the Applicant’s time spent in social media while they were doing her work.
[174] If Mr Motshegare could not tell the truth about what he principal said about the Applicant’s involvement in social media, why would anyone believe him that he never threatened the Applicant to resign. It then becomes difficult to believe the testimony of Mr Motshegare as the true reflection of what transpired at Wimpy restaurant in Wolmaransstad. The Applicant’s version of what transpired becomes more probable.
[175] This intervention failed but no cause or alternative was explored by the employer in this regard.
[176] The testimony of Monnagaaratwe confirmed that there was a meeting scheduled for intervention in the conflict between the Applicant and Mrs Ferris against the Applicant’s testimony. However this meeting did not achieve its intended objective and that does not justify the fact that there was a mandate to intervene. On the flip side , it does not rule out the fact that intervention did not materialise.
[177] No any other attempt by the employer to resolve this matter after a failed intervention by Mr Monnagaaratwe. This amounted to no intervention at all.
[178] Monnagaaratwe’s account of the incident between the Applicant and Mrs Ferris that they had a very heated argument about allocation in the afternoon before she miscarry her unborn child, contradicts the evidence presented by Mrs Ferris that they had a positive and fruitful discussion that afternoon. Though this could not in any manner prove that she was the cause of the stress she suffered that afternoon, the Deputy Principal had no reason to misappropriate the facts of what transpired that afternoon.
FINDING
[179] I find that the applicant has discharged the onus of proving that the respondent made continued employment objectively intolerable and accordingly that applicant has

discharged the onus of proving that she was dismissed in terms of Section 186(1) (e) read with Section 192(1) of the Labour Relations Act 66 of 1995. See Jooste v Transnet t/a Airways (1995) 5 BLLR 1 (LAC).
Relief Sought
[180] The relief which I find to be fair an dequitable taking into account the degree of intolerable conduct which I have found to have been present, is eight months compensation.
Compensation Calculation
[181] R25 959.25 monthly salary X 8 months’ compensation = R207 674.00

AWARD
[182] The respondent made continued employment objectively intolerable and accordingly that applicant has discharged the onus of proving that she was dismissed in terms of Section 186(1) (e) read with Section 192(1) of the Labour Relations Act 66 of 1995.
The Respondent, Department of Education and Sport Development – North West, is hereby ordered to pay the Applicant, Dikeledi Esther Sekati, compensation amount equivalent to and not exceeding Two Hundred and Seven Thousand Six Hundred and Seventy Four Rand (R207 674.00), as per the calculation in paragraph 181 above.
[183] The compensation amount in paragraph 182 above is subject to all statutory deductions applicable to the Applicant and becomes due and payable to her by the Respondent and by no later than 31 March 2019.

Signature:
Commissioner: Shaku Landela
Sector: Education