PSES 689 11/12 KZN
PSES 689 11/12 KZN
Award Date:
5 June 2016
Case Number: PSES 689 11/12 KZN
Province: KwaZulu-Natal
Applicant: SIMON JABULANI ZUMA
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Dismissal - Misconduct
Award Date: 5 June 2016
Arbitrator: A. DEYZEL
Panelist: A. DEYZEL
Case No: PSES 689 11/12 KZN
Date: 5 June 2016
In the matter between
SIMON JABULANI ZUMA Applicant
and
DEPARTMENT OF EDUCATION KZN Respondent
Applicant’s representative: Mr Y. Govender
Govindsamy, Ndzingi & Govender Attorneys
P.O. Box 8518
3235
Telephone:
Fax: 033 342 7583
Respondent’s representative: Mr I Pillay Department of Education KZN
Private Bag X937
Pietermaritzburg
Telephone: 083 846 5200
Fax: 033 246 5462
DETAILS OF HEARING AND REPRESENTATION
1. On 1 February 2012 the applicant referred a dispute to the ELRC alleging that the respondent (“the department”) dismissed him unfairly.
2. A conciliation meeting was held but the dispute could not be resolved through conciliation.
3. The arbitration hearing was held on 24 February 2016 and 19 May 2016. The parties were afforded an opportunity to file written argument by 26 May 2016. The applicant’s written argument was received on 26 May 2016.
4. The applicant was represented by his attorney, Mr Y. Govender.
5. The department was represented by an official, Mr I Pillay.
ISSUE TO BE DECIDED
6. The issue to be decided was whether the applicant was unfairly dismissed and, if so, what relief is to be awarded.
BACKGROUND
7. The applicant was employed by the respondent as an educator at the Hilton Intermediate School (“the school”).
8. Another educator at the school, Mrs J. I. Mkhize acted as principal from 2007 onwards.
9. During 2010 the applicant was the grade 5 class educator and the three learners who were called as witnesses during the disciplinary enquiry were in grade 5. These learners will be referred to as learner A, learner B and learner C respectively.
10. On 11 May 2010 the applicant was on sick leave and he was at his cottage across the road from the school. Learners A and B walked past the applicant’s cottage and he instructed them or one of them to fetch certain books from the class room and to bring it to him. Learners A and B fetched books from the class room and brought it to the applicant. The applicant asked learner B to take one book back to the class room. Learner B later returned to the applicant’s cottage. The parties were in dispute about what happened while learner B was away.
11. On 15 February 2011 the applicant was notified to attend a disciplinary enquiry. The charges levelled against him appeared from an annexure to the notice and were the following except that the name of learner A was mentioned:
CHARGE 1
In that upon or about 11 May 2010 at or near Hilton Intermediate School you committed an act of sexual assault on learner A in that you asked her to come inside the cottage and close the door behind her and she refused, then you closed the door and started touching her, pulled her towards the bed and thereby contravening Section 17 (b) of the Employment of Educators Act, as amended.
ALTERNATIVELY
In that on or about 11 May 2010 at or near Hilton Intermediate School, while on duty you conducted yourself in an improper, disgraceful or unacceptable manner in that you asked learner A to come inside the cottage and close the door behind her and she refused, then you closed the door and started touching her, pull her towards the bed and thereby contravening Section 18 (1) (q) of the Employment of Educators Act, as amended.
CHARGE 2
In that on or about 7 May 2010 at or near Hilton Intermediate School, while on duty you conducted yourself in an improper, disgraceful or unacceptable manner in that you attempted to romance learner A by touching her thereby contravening Section 18(1) (q) of the Employment of Educators Act, as amended.
12. The disciplinary hearing was held on 21 February 2011 and 28 March 2011.
13. Mr M.E. Mabaso, a disputes manager, chaired the disciplinary enquiry.
14. On 21 February 2011 the applicant applied to be represented by his attorney, Mr Y. Govender. The application was refused and the applicant was then represented by a union official on 28 March 2011.
15. On or about 3 April 2011 the applicant was notified that he was dismissed.
16. On or about 9 May 2011 the applicant lodged an appeal to the MEC for Education KZN.
17. The appeal was dismissed on 13 December 2011.
18. On 18 January 2012 the applicant was notified that the appeal was dismissed and that his service would be terminated with effect from 1 February 2012.
19. The dispute was referred to the ELRC on 1 February 2012.
20. The matter was first set down for arbitration before another ELRC panellist, Mr Dorasamy. The arbitration was set down for hearing on 31 May 2012. Argument relating to legal representation was heard and the matter was adjourned for written argument and a ruling to be made.
21. The arbitration was scheduled to continue on 8 October 2012. The respondent applied for an adjournment due to the non-availability of its witnesses. The applicant consented to an adjournment and the hearing did not proceed on 8 October 2012.
22. The arbitration hearing before Mr Dorasamy proceeded on 29 January 2013.
23. Mr Dorasamy was informed that the parents of learner A indicated that learner A would not attend.
24. Mr Dorasamy issued an award on 18 February 2013 finding that the dismissal was unfair and ordering the respondent to reinstate the applicant with effect from 1 March 2013.
25. Mr Dorasamy recorded in the award that the representatives of the parties advised him that they did not intend to lead oral evidence at the arbitration and that they agreed that the “evidence as recorded by the presiding officer would be the evidence for the arbitration process.”
26. The respondent applied to the Labour Court to review the award. Argument relating to the review application was heard on 17 July 2014 and the judgment was delivered on 31 July 2015.
27. The award issued by Mr Dorasamy was set aside and the ERLC was directed to re-enrol the matter before an arbitrator other than Mr Dorasamy.
28. The arbitration before me was scheduled to be held on 27 November 2015. On 26 November 2015 (the day before the scheduled hearing) I was notified that the matter would not continue on 27 November 2015. I was not informed for what reason the matter was removed from the roll for 27 November 2015.
29. The matter was next set down for hearing on 4 February 2016. On that day opening statements were heard and a ruling was made allowing the applicant to be represented by a legal practitioner.
30. On 4 February 2016 a further ruling was made that the applicant would be screened off so that the witnesses who are minors would not see him whilst testifying. A ruling was further made that the minor witnesses may have the assistance of an intermediary whilst testifying. It was indicated that reasons for these two rulings would be given in the award. It was at that stage already clear that learner A was reluctant to testify during the arbitration hearing. The rulings were made to create an atmosphere in the arbitration room where learner A and other minor witnesses could as far as possible be placed at ease when testifying. The matter was adjourned so that learner A could be subpoenaed to attend the arbitration hearing.
31. The arbitration was set down for the hearing to proceed on 7 and 8 April 2016. The respondent called its first witness, Mr Musawenkosi Mabaso and his evidence was completed. The intermediary was present but the matter could not proceed due to the absence of learner A.
32. The respondent thereafter applied for an adjournment. Mr Mbona, an official in the respondent’s employ, was called by the respondent to explain what steps were taken to secure the attendance of learner A. It appeared from his evidence that the respondent did not receive sufficient notice to subpoena learner A timeously. On 6 April 2016 learner A and her mother indicated that they would attend the arbitration hearing. However when they were fetched by Mr Mbona on 7 April 2016 they refused to come to the venue. They argued that they were not given sufficient notice and that they would in any event not come to the hearing. The father of learner A was her guardian and his consent was required. He was not subpoenaed and refused to give consent. The result was that the respondent was unable to call learner A to give evidence. The respondent accordingly applied for an adjournment to make a final attempt to secure the attendance of learner A. Mr Pillay for the department indicated that the department’s case would be closed if learner A was not present at the next hearing. The applicant through his attorney opposed the application for an adjournment. Despite the opposition a final adjournment was granted and ex tempore reasons were given for the ruling. Learner A was a crucial witness and it was in the public interest for the respondent to be given a further opportunity to secure her attendance. The issue of wasted costs occasioned by the adjournment was reserved.
33. The arbitration was next set down for hearing on 19 May 2016. Learner A was again not present and the whereabouts of the learner B were unknown. The respondent contacted Mrs Mkhize on the day of the arbitration i.e. 19 May 1916. According to what she told the respondent’s representatives the notice to attend was too short to afford her sufficient time to prepare and she refused to attend the arbitration hearing.
34. The respondent again applied for an adjournment. The application for an adjournment was refused. The reasons for refusing the application for an adjournment are dealt with in the analysis of evidence and argument.
35. After the application for an adjournment was refused the respondent closed its case. The applicant was the only witness to give evidence in support his case.
SURVEY OF EVIDENCE AND ARGUMENT
36. The respondent called Mr Mabaso to give evidence in support of its case. He chaired the disciplinary enquiry that led to the applicant’s dismissal.
37. Mr Mabaso refused to allow the applicant to be represented by his attorney. Whether this ruling rendered the procedure unfair is dealt with in the Analysis of Evidence and Argument.
38. Mr Mabaso gave evidence about the disciplinary enquiry and his evidence is summarised in paragraphs 39 to 43 hereunder. He testified that his written findings reflected what happened during the disciplinary enquiry. Witnesses were called and they testified under oath in front of Mr Mabaso. The written findings included a summary of the evidence given by the witnesses.
39. During the disciplinary enquiry the respondent called the three witnesses who are referred to in this award as learner A, learner B and learner C.
40. Learner A gave evidence during the disciplinary enquiry and Mr Mabaso summarised her evidence as follows:
• Learner A was a learner at Hilton Intermediary School. In 2010 she was in grade 5 in the same school. The applicant was her class teacher.
• On 7 May 2010 learner A was in the Maths class. Another learner was present. They requested the applicant to go to the toilet because a learner wanting to go to the toilet had to request toilet paper from the class teacher. The applicant either touched learner A or tried to touch learner A’s buttocks. Learner C laughed because she saw what happened. Learner A reported the matter to Mrs Mkhize, the acting principal. Mrs Mkhize said that if the applicant did anything sinister again, learner A must report the matter to her parents to open a criminal matter.
• On 11 May 2010 in the morning learner A was walking with learner B. They took their books to the class room. They went out to meet friends.
• The applicant was standing in front of the cottage. He called them and asked them to fetch books from the classroom. When they returned with the books he said that he did not need the EMS book. He said learner B should take the book back. Learner B took the book to the classroom.
• The applicant asked learner A to get inside the cottage. She refused because on a previous occasion the applicant tried to touch her. The applicant dragged her to the bed and closed the door. The applicant tried to undress her skirt. She was crying and kicking. Learner B came back and opened the door. Learner A was able to run away.
41. Learner B also testified at the disciplinary enquiry and Mr Mabaso summarised her version as follows:
• Learner B went to school with Learner A. The left their books in the class room. The applicant called them and asked them to bring books.
• The applicant said that learner B should take the Zulu book back. The applicant said that learner A should stay behind. When learner B came back she saw learner A running away. Learner A was crying. Learner B did not open the door of the applicant’s cottage.
42. Learner C ‘s evidence at the disciplinary enquiry was summarised as follows in the findings of Mr Mabaso:
• On 7 May 1010 learner A and Learner C went to their class to request permission from the applicant to go to the toilet and to request toilet paper from him. Learner A went in first and learner C stood by the door. Learner C saw the applicant touching learner A “in the buttocks.” Learner C later asked learner A what the applicant was doing.
• Under cross-examination learner C testified that the applicant grabbed learner A and put his finger in learner A’s buttocks.
43. The fourth witness to testify for the respondent at the disciplinary enquiry was Mrs Mkhize. It appeared from Mr Mabaso’s summary of the evidence at the disciplinary enquiry that Mrs Mkhize testified at the disciplinary enquiry that Learner A and Learner B reported incidents to her on 11 May 2010. Learner A reported that the applicant tried to rape her on 11 May 2010 and that on 7 May 2010 the applicant touched her buttocks. Mrs Mkhize reported the incidents to the SEM, Mr Duma. She also told the applicant on his return from leave what reports were made.
44. The applicant gave evidence at the arbitration hearing and his version is summarised in paragraphs 45 to 52 hereunder.
45. The applicant denied that he had anything to do with learner A on 7 May 2010.
46. According to the applicant he decided to give the learners a test while he was on sick leave.
47. One 11 May 2010 the applicant called leaner B to give him her exercise book so that he could use it in setting the test. The reason why he asked for her exercise book was her neat handwriting. Learner A came with learner B. Learner B came with the incorrect exercise book and the applicant asked her to take that book back and to fetch the correct exercise book. Learner B did what she was asked to do and fetched the correct exercise book.
48. Learner A was outside the door of the cottage when learner B went to fetch the correct exercise book. The applicant denied that he asked Learner A to come into the cottage. He stood with her outside the cottage. The class room was close to the cottage and it took less than a minute to walk from the cottage to the class room.
49. In the applicant’s view Ms Mkhize influenced learners A, B and C to make false allegations. He and Mrs Mkhize were both seeking appointment to the vacant principal post. They were supposed to rotate every six months as acting principal but this never happened.
50. The applicant sees learner A and her father regularly and they greet one another on such occasions.
51. The applicant further testified about the effect that the unfair dismissal had upon him. He did not find another job and did not have any income from 1 March 2012. He had to live on pension monies.
52. The applicant testified that he was not responsible for any delay and was seeking reinstatement with retrospective effect from 1 March 2012.
53. The argument advanced on behalf of the applicant inter alia appears from the written argument. It was submitted that the dismissal was substantively and procedurally unfair and that the applicant should be reinstated in the respondent’s employ with retrospective effect from 1 March 2012.
54. Oral submissions were made on the respondent’s behalf. It was submitted that a fair procedure was followed and that the respondent’s reason for dismissing the applicant was fair. It was particularly argued that the trust relationship had broken down. The nature of the sector and the public interest should be taken into account, so it was argued.
ANALYSIS OF EVIDENCE AND ARGUMENT
55. The arbitration proceedings envisaged by the LRA in unfair dismissal matters is a rehearing of the evidence relating to the charges that the employee was dismissed for. Generally this means that a party may at arbitration not rely on hearsay evidence regarding what a witness said during a disciplinary hearing unless such witness is called during the arbitration hearing. If the evidence given by a witness at a disciplinary enquiry is relevant to the issues that need to be considered at arbitration, then it is not open to a party to merely lead hearsay evidence regarding what a witness said during the disciplinary enquiry but such witness should be called to give oral evidence during the arbitration proceedings.
56. There are exceptional cases where hearsay evidence regarding what a witness said during a disciplinary hearing may be allowed. The exceptional cases include cases where hearsay evidence is permitted in circumstances envisaged by Section 3 (1) (c) the Law of Evidence Amendment Act 45 of 1988. The factors referred to in that section have equal application in arbitration proceedings of this nature. Hearsay evidence should be admitted if an arbitrator is of the opinion that such evidence should be admitted in the interests of justice. See Matsekoleng v Shoprite Checkers [2013] 2 BLLR 130 (LAC); Southern Sun Hotels v SACCAWU & another (2000) 27 ILJ 1315 395 (LAC) and Sisonke Partnership t/a International Healthcare Distributors v National Bargaining Council for the Chemical Industry & others (JA51/10) [2013] ZALAC 16 (19 July 2013)
57. In such cases an arbitrator must have regard to
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends;
(vi) the prejudice to a party which the admission of such evidence might entail; and
(vii) any other factor which should in the opinion of the arbitrator be taken into account.
58. The factors should be considered cumulatively. The prejudice to a party includes a disadvantage caused by an inability to test by cross-examination the information and hearsay statements that another party seeks to rely on during arbitration. On its own such inability is not necessarily a sound reason for excluding such information or hearsay statements. See Shoprite Checkers v CCMA & others (JR2259/11) [2014] ZALCJHB 36 and Makhathini v Road Accident Fund 2002 (1) SA 511 (SCA).
59. The hearsay evidence that the department sought to rely on was the evidence of the chairperson of the disciplinary enquiry, Mr Mabaso regarding what learners A, B and C and Mrs Mkhize testified during the disciplinary enquiry. The purpose of the department leading the evidence was to prove that the applicant committed the misconduct that he was dismissed for. In arbitrations of this nature an arbitrator should deal with the substantive merits of the dispute with the minimum of legal formalities. See Section 138 (1) of the LRA. The probative value of the hearsay evidence is limited as the applicant gave direct evidence that he did not commit the alleged misconduct.
60. The department was allowed numerous adjournments to secure the attendance of learner A. By 7 April 2016 it was obvious that the time had come for the arbitration hearing to be finalised. On that occasion an adjournment was granted mainly because Mr Pillay for the department indicated that he would close the department’s case if learner A was not at the arbitration hearing when the matter was next set down.
61. There was no clear evidence why learner A and her father refused the department’s request to testify during the arbitration proceedings. It is likely that giving evidence against the applicant might be a traumatic experience for learner A and that her father is of the view that it is not in her interests to testify. However steps were taken to ensure that the applicant could testify in circumstances that would minimise the stressfulness of testifying. In this regard I refer to the ruling that the applicant should be screened off while learner A is testifying and the ruling that she could give her evidence with the assistance of an intermediary. It was not satisfactorily explained why those measures were insufficient to create an atmosphere in which learner A could reasonably be expected to testify. The interests of learner A are not the only interests that are relevant. The public interest and in particular the interests of other learners to be protected against educators that commit the kind of misconduct that the applicant was dismissed for, are equally relevant. By 19 May 2016 the interests of the applicant in the speedy resolution of his dispute weighed more than the factors that the department relied upon in requesting an adjournment. As a matter of public policy labour disputes should be resolved expeditiously. It is so that the interests of learners are of great importance. There is however a limit beyond which the interests of learners can no longer carry more weight than the interests that dismissed employees, such as the applicant, have that disputes about alleged unfair dismissal, be resolved expeditiously.
62. The department should have taken timeous steps to subpoena learner A and her father to attend the arbitration hearing for an inquiry to be done during the arbitration hearing whether learner A should be compelled to give evidence. The failure to do so weighed heavily against granting of a further adjournment.
63. The application that the matter be adjourned on 19 May 2016 was refused for the reasons referred to in para graphs 61 and 62 above.
64. The absence of an acceptable explanation for not calling learner A as a witness during the arbitration hearing also weighed against allowing the evidence regarding what she stated during the disciplinary enquiry, as evidence that the applicant committed the misconduct that he was dismissed for.
65. Learner B could not be traced and the department’s inability to trace her was a factor weighing in favour of admitting evidence regarding what she testified during the disciplinary enquiry. Mr Mabaso confirmed that his written findings reflected what happened during the disciplinary enquiry but at the time that he testified the findings that he referred to did not include the page on which reference was made to the cross-examination of learner B.
66. The page referred to in the preceding paragraph contained the whole of the evidence given by learner C and most of the evidence given by Mrs Mkhize during the disciplinary enquiry. When Mr Mabaso confirmed that his findings correctly reflected the evidence given during the disciplinary enquiry the said page was not part of the exhibit containing the findings. When the applicant was testifying the arbitrator enquired from him whether he had any knowledge of the missing page. At that stage the department’s representative handed in a complete copy of Mr Mabaso’s findings. In his written argument the applicant’s attorney argued that there was no proof regarding what evidence learner C and Mrs Mkhize gave during the disciplinary enquiry. The document that was handed in was a fax that Mr Mabaso sent to the department on 26 April 2011. The fax consisted of eight pages including the page that was later regarded as missing. When Mr Mabaso testified that his findings reflected what happened during the disciplinary hearing it included the summary of the evidence appearing on the page that was handed in after he testified. In his evidence the applicant referred to contradictions between the evidence given by learners A and B during the disciplinary enquiry and this was borne out by the summary of the evidence contained in Mr Mabaso’s findings. It is more probable than not that the page contained part of Mr Mabaso’s findings.
67. There was no explanation why learner C was not called as a witness during the arbitration proceedings.
68. The explanation for not calling Mrs Mkhize was highly unsatisfactory. She was contacted on the day of the arbitration hearing and she refused to come to the arbitration venue because she was given insufficient notice to prepare. Why she was not earlier required to be at the arbitration venue and why the respondent did not instruct her to attend the arbitration, was not explained.
69. The prejudice to the applicant caused by his inability to cross-examine learner A B and C as well as Mrs Mkhize during the arbitration hearing was so serious that it weighed in favour of not admitting the summary of the evidence contained in Mr Mabaso’s findings as evidence in the arbitration hearing. Alternatively the prejudice to the applicant is of such a serious nature that very little weight should be attached to the evidence given during the disciplinary enquiry. The reasons for this finding are dealt with in paragraphs 70 to 76 below.
70. Should the evidence given at the disciplinary enquiry by learners A, B and C as well as that of Mrs Mkhize be admitted as evidence in this arbitration the department would have made out prima facie case that the applicant committed the misconduct that learners A, B and C referred to. In such event the applicant’s defence would have to be considered in the light of the probabilities.
71. On the department’s version there was no reason for the three learners to falsely implicate the applicant in the commission of the misconduct that they referred to. If there was a conspiracy to falsely implicate the applicant in misconduct one would have expected the allegations to involve more serious misconduct. The defence that the applicant advanced during the disciplinary hearing as well as during the arbitration hearing was to the effect that the three learners and Mrs Mkhize conspired to implicate him falsely in the commission of the misconduct that the learners referred to. The report allegedly made to Mrs Mkhize would cast doubt on the applicant’s defence as the reports were made on a day soon after the incidents occurred. For the applicant’s defence to succeed, skilful cross-examination would have been required if the witnesses were called to testify during the arbitration hearing. The applicant was refused legal representation during the disciplinary hearing and during the arbitration hearing, when he was allowed legal representation, the witnesses did not testify so that their evidence could be tested.
72. The applicant’s defence was not without merit as it appeared from the findings of Mr Mabaso that Mrs Mkhize testified that learner A and learner B reported the incidents to her on 11 May 2010. Learner A reported two incidents on 11 May 2010 i.e. that the applicant tried to rape her on 11 May 2010 and that he touched her buttocks on 7 May 2010, so Mrs Mkhize testified. According to Mr Mabaso’s findings learner A testified that she made reports to Mrs Mkhize on two occasions. She reported the first incident to Mrs Mkhize and Mrs Mkhize told her that if the applicant did anything sinister again, she should report the matter to her parents. On the version of learner A the incident of 11 May 2010 was also reported to Mrs Mkhize. There was therefore a contradiction whether one or two reports were made to Mrs Mkhize.
73. The parties were in dispute as to whether anything happened on 7 May 2010. According to learner A’s evidence at the disciplinary enquiry learner C laughed when the incident occurred. Learner C was not questioned about this during the disciplinary enquiry and there was no explanation why she found the incident amusing. According to the evidence given by witness A at the disciplinary enquiry the applicant “tried to touch her buttocks.” According to learner C’s evidence at the disciplinary hearing the applicant touched learner A “in the buttocks” and the applicant “grabbed” learner A and put his finger in learner A’s buttocks.
.
74. Witness A testified at the disciplinary enquiry that when the applicant told her on 11 May 2010 to get inside his cottage, she refused to do so because the applicant once touched her and she knew what he might have planned. Earlier and when the applicant sent learner B back to the class room learner A did not go with her but stayed in the vicinity of the applicant’s cottage. On learner B’s version the applicant asked learner A to stay behind. Why learner A remained there despite the incident that (on her version) occurred on 7 May 2010 was not explained. If the applicant tried to touch her buttocks on 7 May 2010 (as she alleged) it is highly improbable that she would have remained close to the door of the applicant’s cottage when she could have walked away with learner B.
75. The class room was very close to the applicant’s cottage i.e. less than a minute’s walk. It was highly improbable that the applicant would have done what learner A alleged he did. The applicant knew that learner B was to return to his cottage. If learner A’s version is correct then the applicant must have taken the risk that witness B would see what was going on and it is highly improbable that a perpetrator of such acts would have taken such risk.
76. In his evidence at arbitration the applicant referred to the serious contradiction between the evidence of learner A and learner B given at the disciplinary enquiry. That there was such a contradiction is borne out by the summary of their evidence in the findings of Mr Mabaso. Learner A testified that learner B opened the door to the cottage while the applicant was trying to undress her on the bed and while she was crying and kicking. She then had an opportunity to run out of the cottage. Learner B on the other hand testified that she did not open the door. On her return she saw learner A running away. Because they did not testify during the arbitration hearing they could not be cross-examined about this and there was no explanation for the contradiction.
77. Having regard to all the factors and circumstances referred to in paragraphs 56 to 76 above the present case does not fall within one of those exceptional cases where it is in the interests of justice that hearsay evidence should be allowed. In any event and also for the reasons given in paragraphs 56 to 76 above, even if the evidence given during the disciplinary enquiry is taken into account, the department did not prove on balance of probabilities that the applicant committed the misconduct that he was dismissed for. The refusal of learner A and Mrs Mkhize to testify during the arbitration hearing and the absence of a satisfactory explanation for such refusal coupled with the unsatisfactory and improbable evidence given by the department’s witnesses at the disciplinary enquiry, led to a situation where a finding could not be made that the department proved on a balance of probabilities that the applicant committed the misconduct that he was dismissed for. In these circumstances, dismissal was not an appropriate sanction and I find dismissal to be substantively unfair.
78. It was submitted on behalf of the applicant that the refusal to allow him legal representation at the disciplinary enquiry rendered the dismissal procedurally unfair.
79. In terms of clause 7 (3) of the Disciplinary Code and Procedures for Educators (Schedule 2 to the Employment of Educators Act 76 of 1998) an educator may choose to be represented at a disciplinary hearing by a fellow educator or a representative of a trade union. However in terms of clause 7 (5) if the presiding officer so directs, the employer or educator may be represented by a legal representative. Mr Mabaso indicated in his evidence that he exercised discretion not to allow legal representation. He inter alia considered the seriousness of the charges, the complexity of the matter, the comparative ability of the applicant’s attorney compared to the department’s representative. According to him he accepted that the charges were serious. The matter was however straight forward and a union representative could represent the applicant adequately. Allowing a legal representative to represent the applicant would have created an imbalance as the department’s representative was not a legal practitioner. It was relevant to consider such factors. See MEC: Department of Finance, Economic Affairs, Northern Province v Mahumani [2005] 2 BLLR 173 (SCA) and the cases referred to in that judgment. The applicant had adequate opportunity to prepare. He was granted an opportunity to state a case in response to the evidence given by the department’s witnesses and he was given reasons for the chairperson’s decision. On the evidence the department followed a fair procedure in effecting the dismissal.
80. I accordingly find that the applicant’s dismissal was only substantively unfair.
81. In terms of section 193 (1) of the LRA if an arbitrator finds that a dismissal was substantively unfair the arbitrator may order to employer to reinstate or to re-employ the employee from a date not earlier than the date of dismissal. In exceptional circumstances this is not obligatory. The exceptions are referred to in section 193 (2). They include a situation where the circumstances surrounding the dismissal are such that it renders a continued employment relationship intolerable and a situation where it is not reasonably practicable for the employer to reinstate of re-employ the employee.
82. Mr Pillay submitted on behalf of the department that the employment relationship had broken down and that reinstatement or re-employment should for that reason not be ordered. I accept that it would have been the case had it been proved at the arbitration that the applicant committed the misconduct that he was dismissed for. There was no acceptable proof that the applicant committed such misconduct and no other evidence was led to provide a basis for a finding that the employment relationship had broken down.
83. There was also no evidence led that re-employment rather than reinstatement should be ordered.
84. I considered whether it was not reasonably practicable to reinstate the applicant in the light thereof that four years and three months had gone past since the applicant was dismissed with effect from 1 March 2012. There was however no evidence that reinstatement is not practicable.
85. In deciding on the retrospective operation of the reinstatement I took into account the applicant’s loss of income as well as the causes of the delay. In my view the dispute could have been resolved on 1 March 2013, the date on which the first award was issued. The delay that followed was caused by the parties agreeing during the first arbitration not to lead evidence but to argue the matter on the evidence led at the disciplinary enquiry. The agreement not to lead evidence led to the Mr Dorasamy deciding the first arbitration without evidence and this in turn led to the review judgment dated 31 July 2015. There were lengthy delays caused by the respondent seeking adjournments in order to secure the attendance of witnesses and in particular to secure the attendance of learner A. There were other lengthy delays caused for instance by the period the parties had to wait for the review judgment and for the arbitration to be set down for hearing after every adjournment. It is very difficult to apportion blame for the delays with any degree of precision. The delays contributed to the applicant’s loss of income but to some extent the delays were caused by the respondent acting in what it perceived to be the public interest.
86. In all the circumstances I consider it fair that the reinstatement should operate from such date that the applicant receives back pay for roughly half of the period that he was without income i.e. for two years and two months. In order to achieve such end result the reinstatement will be ordered to operate with retrospective from the date of dismissal but with back pay effect from 1 April 2014.
87. The remuneration payable to the applicant as a result of the retrospective operation of the reinstatement amounts to R 636 084-50 which was calculated as follows:
1 April 2014 to 31 March 2015 R 252 519-00
2014 Bonus R 21 043-25
1 April 2015 to 31 March 2016 R 270 195-00
2015 Bonus R 22 516-25
1 April 2016 to date R 69 775-00
TOTAL R 636 048-85
88. It was submitted by the applicant that the department should be ordered to pay his costs including the wasted costs occasioned by the adjournments. In terms of Clause 64.4 of the ELRC dispute resolution procedures a costs order may be granted if the matter was defended in a vexatious manner or without reasonable cause. If unreasonable conduct on the part of the department led to wasted costs for the applicant a cost order may also be granted for that reason. In my view the public interest requires of the department to do whatever is necessary to defend matters where there is reason to believe that a learner was treated in an improper disgraceful or unacceptable manner. As indicated above it is possible to criticise the department for the way in which this matter was handled. However it was the unreasonable stance took by learner A and her guardian that ultimately led to the matter being decided without her version being considered. The outcome of the arbitration would lead to a continuation of the employment relationship and that a further factor weighing against the granting of a costs order.
AWARD
(a) The respondent, Department of Education KwaZulu-Natal, is ordered to reinstate the applicant, Mr Simon Jabulani Zuma, in its employ on the same terms and conditions that governed his employment immediately prior to his dismissal on 1 March 2012.
(b) The reinstatement referred to in paragraph (a) is to operate with retrospective effect from the date of dismissal but with back pay calculated from 1 April 2014.
(c) As at the date of issuing of this award the remuneration payable to the applicant as a result of the retrospective effect of the reinstatement referred to in paragraph (b) above amounts to R 636 048-85 minus such deductions as the respondent is in terms of the law obliged or entitled to make.
(d) The amount referred to in paragraph (c) above is to be paid to the applicant by no later than 30 June 2016.
(e) The applicant is to tender his services to the respondent on or around 13 June 2016.
(f) No order as to costs is made.
DATED at DURBAN this 5th day of JUNE 2016.
A. DEYZEL
ELRC PANELIST
Province: KwaZulu-Natal
Applicant: SIMON JABULANI ZUMA
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Dismissal - Misconduct
Award Date: 5 June 2016
Arbitrator: A. DEYZEL
Panelist: A. DEYZEL
Case No: PSES 689 11/12 KZN
Date: 5 June 2016
In the matter between
SIMON JABULANI ZUMA Applicant
and
DEPARTMENT OF EDUCATION KZN Respondent
Applicant’s representative: Mr Y. Govender
Govindsamy, Ndzingi & Govender Attorneys
P.O. Box 8518
3235
Telephone:
Fax: 033 342 7583
Respondent’s representative: Mr I Pillay Department of Education KZN
Private Bag X937
Pietermaritzburg
Telephone: 083 846 5200
Fax: 033 246 5462
DETAILS OF HEARING AND REPRESENTATION
1. On 1 February 2012 the applicant referred a dispute to the ELRC alleging that the respondent (“the department”) dismissed him unfairly.
2. A conciliation meeting was held but the dispute could not be resolved through conciliation.
3. The arbitration hearing was held on 24 February 2016 and 19 May 2016. The parties were afforded an opportunity to file written argument by 26 May 2016. The applicant’s written argument was received on 26 May 2016.
4. The applicant was represented by his attorney, Mr Y. Govender.
5. The department was represented by an official, Mr I Pillay.
ISSUE TO BE DECIDED
6. The issue to be decided was whether the applicant was unfairly dismissed and, if so, what relief is to be awarded.
BACKGROUND
7. The applicant was employed by the respondent as an educator at the Hilton Intermediate School (“the school”).
8. Another educator at the school, Mrs J. I. Mkhize acted as principal from 2007 onwards.
9. During 2010 the applicant was the grade 5 class educator and the three learners who were called as witnesses during the disciplinary enquiry were in grade 5. These learners will be referred to as learner A, learner B and learner C respectively.
10. On 11 May 2010 the applicant was on sick leave and he was at his cottage across the road from the school. Learners A and B walked past the applicant’s cottage and he instructed them or one of them to fetch certain books from the class room and to bring it to him. Learners A and B fetched books from the class room and brought it to the applicant. The applicant asked learner B to take one book back to the class room. Learner B later returned to the applicant’s cottage. The parties were in dispute about what happened while learner B was away.
11. On 15 February 2011 the applicant was notified to attend a disciplinary enquiry. The charges levelled against him appeared from an annexure to the notice and were the following except that the name of learner A was mentioned:
CHARGE 1
In that upon or about 11 May 2010 at or near Hilton Intermediate School you committed an act of sexual assault on learner A in that you asked her to come inside the cottage and close the door behind her and she refused, then you closed the door and started touching her, pulled her towards the bed and thereby contravening Section 17 (b) of the Employment of Educators Act, as amended.
ALTERNATIVELY
In that on or about 11 May 2010 at or near Hilton Intermediate School, while on duty you conducted yourself in an improper, disgraceful or unacceptable manner in that you asked learner A to come inside the cottage and close the door behind her and she refused, then you closed the door and started touching her, pull her towards the bed and thereby contravening Section 18 (1) (q) of the Employment of Educators Act, as amended.
CHARGE 2
In that on or about 7 May 2010 at or near Hilton Intermediate School, while on duty you conducted yourself in an improper, disgraceful or unacceptable manner in that you attempted to romance learner A by touching her thereby contravening Section 18(1) (q) of the Employment of Educators Act, as amended.
12. The disciplinary hearing was held on 21 February 2011 and 28 March 2011.
13. Mr M.E. Mabaso, a disputes manager, chaired the disciplinary enquiry.
14. On 21 February 2011 the applicant applied to be represented by his attorney, Mr Y. Govender. The application was refused and the applicant was then represented by a union official on 28 March 2011.
15. On or about 3 April 2011 the applicant was notified that he was dismissed.
16. On or about 9 May 2011 the applicant lodged an appeal to the MEC for Education KZN.
17. The appeal was dismissed on 13 December 2011.
18. On 18 January 2012 the applicant was notified that the appeal was dismissed and that his service would be terminated with effect from 1 February 2012.
19. The dispute was referred to the ELRC on 1 February 2012.
20. The matter was first set down for arbitration before another ELRC panellist, Mr Dorasamy. The arbitration was set down for hearing on 31 May 2012. Argument relating to legal representation was heard and the matter was adjourned for written argument and a ruling to be made.
21. The arbitration was scheduled to continue on 8 October 2012. The respondent applied for an adjournment due to the non-availability of its witnesses. The applicant consented to an adjournment and the hearing did not proceed on 8 October 2012.
22. The arbitration hearing before Mr Dorasamy proceeded on 29 January 2013.
23. Mr Dorasamy was informed that the parents of learner A indicated that learner A would not attend.
24. Mr Dorasamy issued an award on 18 February 2013 finding that the dismissal was unfair and ordering the respondent to reinstate the applicant with effect from 1 March 2013.
25. Mr Dorasamy recorded in the award that the representatives of the parties advised him that they did not intend to lead oral evidence at the arbitration and that they agreed that the “evidence as recorded by the presiding officer would be the evidence for the arbitration process.”
26. The respondent applied to the Labour Court to review the award. Argument relating to the review application was heard on 17 July 2014 and the judgment was delivered on 31 July 2015.
27. The award issued by Mr Dorasamy was set aside and the ERLC was directed to re-enrol the matter before an arbitrator other than Mr Dorasamy.
28. The arbitration before me was scheduled to be held on 27 November 2015. On 26 November 2015 (the day before the scheduled hearing) I was notified that the matter would not continue on 27 November 2015. I was not informed for what reason the matter was removed from the roll for 27 November 2015.
29. The matter was next set down for hearing on 4 February 2016. On that day opening statements were heard and a ruling was made allowing the applicant to be represented by a legal practitioner.
30. On 4 February 2016 a further ruling was made that the applicant would be screened off so that the witnesses who are minors would not see him whilst testifying. A ruling was further made that the minor witnesses may have the assistance of an intermediary whilst testifying. It was indicated that reasons for these two rulings would be given in the award. It was at that stage already clear that learner A was reluctant to testify during the arbitration hearing. The rulings were made to create an atmosphere in the arbitration room where learner A and other minor witnesses could as far as possible be placed at ease when testifying. The matter was adjourned so that learner A could be subpoenaed to attend the arbitration hearing.
31. The arbitration was set down for the hearing to proceed on 7 and 8 April 2016. The respondent called its first witness, Mr Musawenkosi Mabaso and his evidence was completed. The intermediary was present but the matter could not proceed due to the absence of learner A.
32. The respondent thereafter applied for an adjournment. Mr Mbona, an official in the respondent’s employ, was called by the respondent to explain what steps were taken to secure the attendance of learner A. It appeared from his evidence that the respondent did not receive sufficient notice to subpoena learner A timeously. On 6 April 2016 learner A and her mother indicated that they would attend the arbitration hearing. However when they were fetched by Mr Mbona on 7 April 2016 they refused to come to the venue. They argued that they were not given sufficient notice and that they would in any event not come to the hearing. The father of learner A was her guardian and his consent was required. He was not subpoenaed and refused to give consent. The result was that the respondent was unable to call learner A to give evidence. The respondent accordingly applied for an adjournment to make a final attempt to secure the attendance of learner A. Mr Pillay for the department indicated that the department’s case would be closed if learner A was not present at the next hearing. The applicant through his attorney opposed the application for an adjournment. Despite the opposition a final adjournment was granted and ex tempore reasons were given for the ruling. Learner A was a crucial witness and it was in the public interest for the respondent to be given a further opportunity to secure her attendance. The issue of wasted costs occasioned by the adjournment was reserved.
33. The arbitration was next set down for hearing on 19 May 2016. Learner A was again not present and the whereabouts of the learner B were unknown. The respondent contacted Mrs Mkhize on the day of the arbitration i.e. 19 May 1916. According to what she told the respondent’s representatives the notice to attend was too short to afford her sufficient time to prepare and she refused to attend the arbitration hearing.
34. The respondent again applied for an adjournment. The application for an adjournment was refused. The reasons for refusing the application for an adjournment are dealt with in the analysis of evidence and argument.
35. After the application for an adjournment was refused the respondent closed its case. The applicant was the only witness to give evidence in support his case.
SURVEY OF EVIDENCE AND ARGUMENT
36. The respondent called Mr Mabaso to give evidence in support of its case. He chaired the disciplinary enquiry that led to the applicant’s dismissal.
37. Mr Mabaso refused to allow the applicant to be represented by his attorney. Whether this ruling rendered the procedure unfair is dealt with in the Analysis of Evidence and Argument.
38. Mr Mabaso gave evidence about the disciplinary enquiry and his evidence is summarised in paragraphs 39 to 43 hereunder. He testified that his written findings reflected what happened during the disciplinary enquiry. Witnesses were called and they testified under oath in front of Mr Mabaso. The written findings included a summary of the evidence given by the witnesses.
39. During the disciplinary enquiry the respondent called the three witnesses who are referred to in this award as learner A, learner B and learner C.
40. Learner A gave evidence during the disciplinary enquiry and Mr Mabaso summarised her evidence as follows:
• Learner A was a learner at Hilton Intermediary School. In 2010 she was in grade 5 in the same school. The applicant was her class teacher.
• On 7 May 2010 learner A was in the Maths class. Another learner was present. They requested the applicant to go to the toilet because a learner wanting to go to the toilet had to request toilet paper from the class teacher. The applicant either touched learner A or tried to touch learner A’s buttocks. Learner C laughed because she saw what happened. Learner A reported the matter to Mrs Mkhize, the acting principal. Mrs Mkhize said that if the applicant did anything sinister again, learner A must report the matter to her parents to open a criminal matter.
• On 11 May 2010 in the morning learner A was walking with learner B. They took their books to the class room. They went out to meet friends.
• The applicant was standing in front of the cottage. He called them and asked them to fetch books from the classroom. When they returned with the books he said that he did not need the EMS book. He said learner B should take the book back. Learner B took the book to the classroom.
• The applicant asked learner A to get inside the cottage. She refused because on a previous occasion the applicant tried to touch her. The applicant dragged her to the bed and closed the door. The applicant tried to undress her skirt. She was crying and kicking. Learner B came back and opened the door. Learner A was able to run away.
41. Learner B also testified at the disciplinary enquiry and Mr Mabaso summarised her version as follows:
• Learner B went to school with Learner A. The left their books in the class room. The applicant called them and asked them to bring books.
• The applicant said that learner B should take the Zulu book back. The applicant said that learner A should stay behind. When learner B came back she saw learner A running away. Learner A was crying. Learner B did not open the door of the applicant’s cottage.
42. Learner C ‘s evidence at the disciplinary enquiry was summarised as follows in the findings of Mr Mabaso:
• On 7 May 1010 learner A and Learner C went to their class to request permission from the applicant to go to the toilet and to request toilet paper from him. Learner A went in first and learner C stood by the door. Learner C saw the applicant touching learner A “in the buttocks.” Learner C later asked learner A what the applicant was doing.
• Under cross-examination learner C testified that the applicant grabbed learner A and put his finger in learner A’s buttocks.
43. The fourth witness to testify for the respondent at the disciplinary enquiry was Mrs Mkhize. It appeared from Mr Mabaso’s summary of the evidence at the disciplinary enquiry that Mrs Mkhize testified at the disciplinary enquiry that Learner A and Learner B reported incidents to her on 11 May 2010. Learner A reported that the applicant tried to rape her on 11 May 2010 and that on 7 May 2010 the applicant touched her buttocks. Mrs Mkhize reported the incidents to the SEM, Mr Duma. She also told the applicant on his return from leave what reports were made.
44. The applicant gave evidence at the arbitration hearing and his version is summarised in paragraphs 45 to 52 hereunder.
45. The applicant denied that he had anything to do with learner A on 7 May 2010.
46. According to the applicant he decided to give the learners a test while he was on sick leave.
47. One 11 May 2010 the applicant called leaner B to give him her exercise book so that he could use it in setting the test. The reason why he asked for her exercise book was her neat handwriting. Learner A came with learner B. Learner B came with the incorrect exercise book and the applicant asked her to take that book back and to fetch the correct exercise book. Learner B did what she was asked to do and fetched the correct exercise book.
48. Learner A was outside the door of the cottage when learner B went to fetch the correct exercise book. The applicant denied that he asked Learner A to come into the cottage. He stood with her outside the cottage. The class room was close to the cottage and it took less than a minute to walk from the cottage to the class room.
49. In the applicant’s view Ms Mkhize influenced learners A, B and C to make false allegations. He and Mrs Mkhize were both seeking appointment to the vacant principal post. They were supposed to rotate every six months as acting principal but this never happened.
50. The applicant sees learner A and her father regularly and they greet one another on such occasions.
51. The applicant further testified about the effect that the unfair dismissal had upon him. He did not find another job and did not have any income from 1 March 2012. He had to live on pension monies.
52. The applicant testified that he was not responsible for any delay and was seeking reinstatement with retrospective effect from 1 March 2012.
53. The argument advanced on behalf of the applicant inter alia appears from the written argument. It was submitted that the dismissal was substantively and procedurally unfair and that the applicant should be reinstated in the respondent’s employ with retrospective effect from 1 March 2012.
54. Oral submissions were made on the respondent’s behalf. It was submitted that a fair procedure was followed and that the respondent’s reason for dismissing the applicant was fair. It was particularly argued that the trust relationship had broken down. The nature of the sector and the public interest should be taken into account, so it was argued.
ANALYSIS OF EVIDENCE AND ARGUMENT
55. The arbitration proceedings envisaged by the LRA in unfair dismissal matters is a rehearing of the evidence relating to the charges that the employee was dismissed for. Generally this means that a party may at arbitration not rely on hearsay evidence regarding what a witness said during a disciplinary hearing unless such witness is called during the arbitration hearing. If the evidence given by a witness at a disciplinary enquiry is relevant to the issues that need to be considered at arbitration, then it is not open to a party to merely lead hearsay evidence regarding what a witness said during the disciplinary enquiry but such witness should be called to give oral evidence during the arbitration proceedings.
56. There are exceptional cases where hearsay evidence regarding what a witness said during a disciplinary hearing may be allowed. The exceptional cases include cases where hearsay evidence is permitted in circumstances envisaged by Section 3 (1) (c) the Law of Evidence Amendment Act 45 of 1988. The factors referred to in that section have equal application in arbitration proceedings of this nature. Hearsay evidence should be admitted if an arbitrator is of the opinion that such evidence should be admitted in the interests of justice. See Matsekoleng v Shoprite Checkers [2013] 2 BLLR 130 (LAC); Southern Sun Hotels v SACCAWU & another (2000) 27 ILJ 1315 395 (LAC) and Sisonke Partnership t/a International Healthcare Distributors v National Bargaining Council for the Chemical Industry & others (JA51/10) [2013] ZALAC 16 (19 July 2013)
57. In such cases an arbitrator must have regard to
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends;
(vi) the prejudice to a party which the admission of such evidence might entail; and
(vii) any other factor which should in the opinion of the arbitrator be taken into account.
58. The factors should be considered cumulatively. The prejudice to a party includes a disadvantage caused by an inability to test by cross-examination the information and hearsay statements that another party seeks to rely on during arbitration. On its own such inability is not necessarily a sound reason for excluding such information or hearsay statements. See Shoprite Checkers v CCMA & others (JR2259/11) [2014] ZALCJHB 36 and Makhathini v Road Accident Fund 2002 (1) SA 511 (SCA).
59. The hearsay evidence that the department sought to rely on was the evidence of the chairperson of the disciplinary enquiry, Mr Mabaso regarding what learners A, B and C and Mrs Mkhize testified during the disciplinary enquiry. The purpose of the department leading the evidence was to prove that the applicant committed the misconduct that he was dismissed for. In arbitrations of this nature an arbitrator should deal with the substantive merits of the dispute with the minimum of legal formalities. See Section 138 (1) of the LRA. The probative value of the hearsay evidence is limited as the applicant gave direct evidence that he did not commit the alleged misconduct.
60. The department was allowed numerous adjournments to secure the attendance of learner A. By 7 April 2016 it was obvious that the time had come for the arbitration hearing to be finalised. On that occasion an adjournment was granted mainly because Mr Pillay for the department indicated that he would close the department’s case if learner A was not at the arbitration hearing when the matter was next set down.
61. There was no clear evidence why learner A and her father refused the department’s request to testify during the arbitration proceedings. It is likely that giving evidence against the applicant might be a traumatic experience for learner A and that her father is of the view that it is not in her interests to testify. However steps were taken to ensure that the applicant could testify in circumstances that would minimise the stressfulness of testifying. In this regard I refer to the ruling that the applicant should be screened off while learner A is testifying and the ruling that she could give her evidence with the assistance of an intermediary. It was not satisfactorily explained why those measures were insufficient to create an atmosphere in which learner A could reasonably be expected to testify. The interests of learner A are not the only interests that are relevant. The public interest and in particular the interests of other learners to be protected against educators that commit the kind of misconduct that the applicant was dismissed for, are equally relevant. By 19 May 2016 the interests of the applicant in the speedy resolution of his dispute weighed more than the factors that the department relied upon in requesting an adjournment. As a matter of public policy labour disputes should be resolved expeditiously. It is so that the interests of learners are of great importance. There is however a limit beyond which the interests of learners can no longer carry more weight than the interests that dismissed employees, such as the applicant, have that disputes about alleged unfair dismissal, be resolved expeditiously.
62. The department should have taken timeous steps to subpoena learner A and her father to attend the arbitration hearing for an inquiry to be done during the arbitration hearing whether learner A should be compelled to give evidence. The failure to do so weighed heavily against granting of a further adjournment.
63. The application that the matter be adjourned on 19 May 2016 was refused for the reasons referred to in para graphs 61 and 62 above.
64. The absence of an acceptable explanation for not calling learner A as a witness during the arbitration hearing also weighed against allowing the evidence regarding what she stated during the disciplinary enquiry, as evidence that the applicant committed the misconduct that he was dismissed for.
65. Learner B could not be traced and the department’s inability to trace her was a factor weighing in favour of admitting evidence regarding what she testified during the disciplinary enquiry. Mr Mabaso confirmed that his written findings reflected what happened during the disciplinary enquiry but at the time that he testified the findings that he referred to did not include the page on which reference was made to the cross-examination of learner B.
66. The page referred to in the preceding paragraph contained the whole of the evidence given by learner C and most of the evidence given by Mrs Mkhize during the disciplinary enquiry. When Mr Mabaso confirmed that his findings correctly reflected the evidence given during the disciplinary enquiry the said page was not part of the exhibit containing the findings. When the applicant was testifying the arbitrator enquired from him whether he had any knowledge of the missing page. At that stage the department’s representative handed in a complete copy of Mr Mabaso’s findings. In his written argument the applicant’s attorney argued that there was no proof regarding what evidence learner C and Mrs Mkhize gave during the disciplinary enquiry. The document that was handed in was a fax that Mr Mabaso sent to the department on 26 April 2011. The fax consisted of eight pages including the page that was later regarded as missing. When Mr Mabaso testified that his findings reflected what happened during the disciplinary hearing it included the summary of the evidence appearing on the page that was handed in after he testified. In his evidence the applicant referred to contradictions between the evidence given by learners A and B during the disciplinary enquiry and this was borne out by the summary of the evidence contained in Mr Mabaso’s findings. It is more probable than not that the page contained part of Mr Mabaso’s findings.
67. There was no explanation why learner C was not called as a witness during the arbitration proceedings.
68. The explanation for not calling Mrs Mkhize was highly unsatisfactory. She was contacted on the day of the arbitration hearing and she refused to come to the arbitration venue because she was given insufficient notice to prepare. Why she was not earlier required to be at the arbitration venue and why the respondent did not instruct her to attend the arbitration, was not explained.
69. The prejudice to the applicant caused by his inability to cross-examine learner A B and C as well as Mrs Mkhize during the arbitration hearing was so serious that it weighed in favour of not admitting the summary of the evidence contained in Mr Mabaso’s findings as evidence in the arbitration hearing. Alternatively the prejudice to the applicant is of such a serious nature that very little weight should be attached to the evidence given during the disciplinary enquiry. The reasons for this finding are dealt with in paragraphs 70 to 76 below.
70. Should the evidence given at the disciplinary enquiry by learners A, B and C as well as that of Mrs Mkhize be admitted as evidence in this arbitration the department would have made out prima facie case that the applicant committed the misconduct that learners A, B and C referred to. In such event the applicant’s defence would have to be considered in the light of the probabilities.
71. On the department’s version there was no reason for the three learners to falsely implicate the applicant in the commission of the misconduct that they referred to. If there was a conspiracy to falsely implicate the applicant in misconduct one would have expected the allegations to involve more serious misconduct. The defence that the applicant advanced during the disciplinary hearing as well as during the arbitration hearing was to the effect that the three learners and Mrs Mkhize conspired to implicate him falsely in the commission of the misconduct that the learners referred to. The report allegedly made to Mrs Mkhize would cast doubt on the applicant’s defence as the reports were made on a day soon after the incidents occurred. For the applicant’s defence to succeed, skilful cross-examination would have been required if the witnesses were called to testify during the arbitration hearing. The applicant was refused legal representation during the disciplinary hearing and during the arbitration hearing, when he was allowed legal representation, the witnesses did not testify so that their evidence could be tested.
72. The applicant’s defence was not without merit as it appeared from the findings of Mr Mabaso that Mrs Mkhize testified that learner A and learner B reported the incidents to her on 11 May 2010. Learner A reported two incidents on 11 May 2010 i.e. that the applicant tried to rape her on 11 May 2010 and that he touched her buttocks on 7 May 2010, so Mrs Mkhize testified. According to Mr Mabaso’s findings learner A testified that she made reports to Mrs Mkhize on two occasions. She reported the first incident to Mrs Mkhize and Mrs Mkhize told her that if the applicant did anything sinister again, she should report the matter to her parents. On the version of learner A the incident of 11 May 2010 was also reported to Mrs Mkhize. There was therefore a contradiction whether one or two reports were made to Mrs Mkhize.
73. The parties were in dispute as to whether anything happened on 7 May 2010. According to learner A’s evidence at the disciplinary enquiry learner C laughed when the incident occurred. Learner C was not questioned about this during the disciplinary enquiry and there was no explanation why she found the incident amusing. According to the evidence given by witness A at the disciplinary enquiry the applicant “tried to touch her buttocks.” According to learner C’s evidence at the disciplinary hearing the applicant touched learner A “in the buttocks” and the applicant “grabbed” learner A and put his finger in learner A’s buttocks.
.
74. Witness A testified at the disciplinary enquiry that when the applicant told her on 11 May 2010 to get inside his cottage, she refused to do so because the applicant once touched her and she knew what he might have planned. Earlier and when the applicant sent learner B back to the class room learner A did not go with her but stayed in the vicinity of the applicant’s cottage. On learner B’s version the applicant asked learner A to stay behind. Why learner A remained there despite the incident that (on her version) occurred on 7 May 2010 was not explained. If the applicant tried to touch her buttocks on 7 May 2010 (as she alleged) it is highly improbable that she would have remained close to the door of the applicant’s cottage when she could have walked away with learner B.
75. The class room was very close to the applicant’s cottage i.e. less than a minute’s walk. It was highly improbable that the applicant would have done what learner A alleged he did. The applicant knew that learner B was to return to his cottage. If learner A’s version is correct then the applicant must have taken the risk that witness B would see what was going on and it is highly improbable that a perpetrator of such acts would have taken such risk.
76. In his evidence at arbitration the applicant referred to the serious contradiction between the evidence of learner A and learner B given at the disciplinary enquiry. That there was such a contradiction is borne out by the summary of their evidence in the findings of Mr Mabaso. Learner A testified that learner B opened the door to the cottage while the applicant was trying to undress her on the bed and while she was crying and kicking. She then had an opportunity to run out of the cottage. Learner B on the other hand testified that she did not open the door. On her return she saw learner A running away. Because they did not testify during the arbitration hearing they could not be cross-examined about this and there was no explanation for the contradiction.
77. Having regard to all the factors and circumstances referred to in paragraphs 56 to 76 above the present case does not fall within one of those exceptional cases where it is in the interests of justice that hearsay evidence should be allowed. In any event and also for the reasons given in paragraphs 56 to 76 above, even if the evidence given during the disciplinary enquiry is taken into account, the department did not prove on balance of probabilities that the applicant committed the misconduct that he was dismissed for. The refusal of learner A and Mrs Mkhize to testify during the arbitration hearing and the absence of a satisfactory explanation for such refusal coupled with the unsatisfactory and improbable evidence given by the department’s witnesses at the disciplinary enquiry, led to a situation where a finding could not be made that the department proved on a balance of probabilities that the applicant committed the misconduct that he was dismissed for. In these circumstances, dismissal was not an appropriate sanction and I find dismissal to be substantively unfair.
78. It was submitted on behalf of the applicant that the refusal to allow him legal representation at the disciplinary enquiry rendered the dismissal procedurally unfair.
79. In terms of clause 7 (3) of the Disciplinary Code and Procedures for Educators (Schedule 2 to the Employment of Educators Act 76 of 1998) an educator may choose to be represented at a disciplinary hearing by a fellow educator or a representative of a trade union. However in terms of clause 7 (5) if the presiding officer so directs, the employer or educator may be represented by a legal representative. Mr Mabaso indicated in his evidence that he exercised discretion not to allow legal representation. He inter alia considered the seriousness of the charges, the complexity of the matter, the comparative ability of the applicant’s attorney compared to the department’s representative. According to him he accepted that the charges were serious. The matter was however straight forward and a union representative could represent the applicant adequately. Allowing a legal representative to represent the applicant would have created an imbalance as the department’s representative was not a legal practitioner. It was relevant to consider such factors. See MEC: Department of Finance, Economic Affairs, Northern Province v Mahumani [2005] 2 BLLR 173 (SCA) and the cases referred to in that judgment. The applicant had adequate opportunity to prepare. He was granted an opportunity to state a case in response to the evidence given by the department’s witnesses and he was given reasons for the chairperson’s decision. On the evidence the department followed a fair procedure in effecting the dismissal.
80. I accordingly find that the applicant’s dismissal was only substantively unfair.
81. In terms of section 193 (1) of the LRA if an arbitrator finds that a dismissal was substantively unfair the arbitrator may order to employer to reinstate or to re-employ the employee from a date not earlier than the date of dismissal. In exceptional circumstances this is not obligatory. The exceptions are referred to in section 193 (2). They include a situation where the circumstances surrounding the dismissal are such that it renders a continued employment relationship intolerable and a situation where it is not reasonably practicable for the employer to reinstate of re-employ the employee.
82. Mr Pillay submitted on behalf of the department that the employment relationship had broken down and that reinstatement or re-employment should for that reason not be ordered. I accept that it would have been the case had it been proved at the arbitration that the applicant committed the misconduct that he was dismissed for. There was no acceptable proof that the applicant committed such misconduct and no other evidence was led to provide a basis for a finding that the employment relationship had broken down.
83. There was also no evidence led that re-employment rather than reinstatement should be ordered.
84. I considered whether it was not reasonably practicable to reinstate the applicant in the light thereof that four years and three months had gone past since the applicant was dismissed with effect from 1 March 2012. There was however no evidence that reinstatement is not practicable.
85. In deciding on the retrospective operation of the reinstatement I took into account the applicant’s loss of income as well as the causes of the delay. In my view the dispute could have been resolved on 1 March 2013, the date on which the first award was issued. The delay that followed was caused by the parties agreeing during the first arbitration not to lead evidence but to argue the matter on the evidence led at the disciplinary enquiry. The agreement not to lead evidence led to the Mr Dorasamy deciding the first arbitration without evidence and this in turn led to the review judgment dated 31 July 2015. There were lengthy delays caused by the respondent seeking adjournments in order to secure the attendance of witnesses and in particular to secure the attendance of learner A. There were other lengthy delays caused for instance by the period the parties had to wait for the review judgment and for the arbitration to be set down for hearing after every adjournment. It is very difficult to apportion blame for the delays with any degree of precision. The delays contributed to the applicant’s loss of income but to some extent the delays were caused by the respondent acting in what it perceived to be the public interest.
86. In all the circumstances I consider it fair that the reinstatement should operate from such date that the applicant receives back pay for roughly half of the period that he was without income i.e. for two years and two months. In order to achieve such end result the reinstatement will be ordered to operate with retrospective from the date of dismissal but with back pay effect from 1 April 2014.
87. The remuneration payable to the applicant as a result of the retrospective operation of the reinstatement amounts to R 636 084-50 which was calculated as follows:
1 April 2014 to 31 March 2015 R 252 519-00
2014 Bonus R 21 043-25
1 April 2015 to 31 March 2016 R 270 195-00
2015 Bonus R 22 516-25
1 April 2016 to date R 69 775-00
TOTAL R 636 048-85
88. It was submitted by the applicant that the department should be ordered to pay his costs including the wasted costs occasioned by the adjournments. In terms of Clause 64.4 of the ELRC dispute resolution procedures a costs order may be granted if the matter was defended in a vexatious manner or without reasonable cause. If unreasonable conduct on the part of the department led to wasted costs for the applicant a cost order may also be granted for that reason. In my view the public interest requires of the department to do whatever is necessary to defend matters where there is reason to believe that a learner was treated in an improper disgraceful or unacceptable manner. As indicated above it is possible to criticise the department for the way in which this matter was handled. However it was the unreasonable stance took by learner A and her guardian that ultimately led to the matter being decided without her version being considered. The outcome of the arbitration would lead to a continuation of the employment relationship and that a further factor weighing against the granting of a costs order.
AWARD
(a) The respondent, Department of Education KwaZulu-Natal, is ordered to reinstate the applicant, Mr Simon Jabulani Zuma, in its employ on the same terms and conditions that governed his employment immediately prior to his dismissal on 1 March 2012.
(b) The reinstatement referred to in paragraph (a) is to operate with retrospective effect from the date of dismissal but with back pay calculated from 1 April 2014.
(c) As at the date of issuing of this award the remuneration payable to the applicant as a result of the retrospective effect of the reinstatement referred to in paragraph (b) above amounts to R 636 048-85 minus such deductions as the respondent is in terms of the law obliged or entitled to make.
(d) The amount referred to in paragraph (c) above is to be paid to the applicant by no later than 30 June 2016.
(e) The applicant is to tender his services to the respondent on or around 13 June 2016.
(f) No order as to costs is made.
DATED at DURBAN this 5th day of JUNE 2016.
A. DEYZEL
ELRC PANELIST