PSES 742-18/19 GP
PSES 742-18/19 GP
Award Date:
8 October 2019
Case Number: PSES 742-18/19 GP
Province: Gauteng
Applicant: Copoosamy R
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Misconduct
Venue: Gauteng Tshwane South District Offices
Award Date: 8 October 2019
Arbitrator: Mathabo Makwela
Case Number: PSES 742-18/19 GP
Commissioner: Mathabo Makwela
Date of Award: 08 October 2019
In the ARBITRATION between
Copoosamy R
(Applicant)
And
Gauteng Department of Education
(First Respondent)
Union/Applicant’s representative: Mr F Naidoo
Applicant’s address:
Telephone:
Telefax:
E-mail:
Respondent’s representative: Ms W Bodiba
Respondent’s address:
Telephone:
Telefax:
E-mail:
Details of parties and representation
1. This arbitration hearing took place on 22 August 2019 under the auspices of the Education Labour Relations Council (the ELRC). The hearing was held at Gauteng Tshwane South District Offices, 265 Pretorius Street, President Towers Building, Pretoria. The parties are Mr R Copoosamy (“the applicant”) and the Department of Education – Gauteng (“the respondent”). The applicant, Mr R Copoosamy, attended and was represented by Mr Frank Naidoo, his attorney. The respondent was represented by Ms Wilhemina Bodiba from its Labour Relations Department. Parties submitted bundles of documents. The applicant’s documents were marked “A1 & A2” while the respondent’s documents were marked “B1”. Busi Seoketsa interpreted the proceedings. The intermediary was Ms N D Nkosi.
Issue to be decided
2 The issue to be decided is whether the respondent committed an unfair labour practice against the applicant relating to unfair disciplinary action short of dismissal in terms of section 186(2)(b) of the LRA.
Background to the dispute
3 The applicant was in the employ of the respondent as an educator since 01 January 2005. He earned an amount of R28 748.97 per month. The applicant referred an unfair labour practice dispute related to unfair disciplinary action in terms of section 186(2)(b) of the Labour Relations Act 66 of 1995 as amended (“the LRA”). The applicant challenged substantive fairness of his dispute only.
4 The following facts were agreed to by parties as common cause issues:
4.1 The applicant was a post level two educator at Lyttelton Primary School and was teaching Grade 5 at the time of the incident.
4.2 The charges against the applicant were the following:
“It is alleged that on 03 May 2016, while on duty as an educator at Lyttelton Primary School, you assaulted a learner, i.e. LM, by kicking her and/or slapping her on her back.
In my view of your actions, you are thus charged with misconduct in terms of section 18(1)(r) of the Employment of Educators, Act 76 of 1998, as amended.”
4.3 A disciplinary hearing was held against the applicant and was concluded on 03 April 2018.The applicant was found guilty of the allegations against him, As a result he was fined R10 000.00.
4.4 The learner, LM was a Grade 5 Learner; LM was the applicant’s English student and was in the applicant’s class. At the time of the incident, the leaner was 9 years old.
5 The applicant in his opening submitted that the dispute relates to unfair labour practice in terms of section 186(2)(b), i.e. unfair disciplinary action short of dismissal. After the respondent found him guilty of the alleged offence leveled against him. The parents of the learner, LM also went to open a case against him at the South African Council of Educators (SACE), to have him deregistered as an educator. SACE exonerated him from the allegations leveled against him. The applicant prayed that should I find in his favour he would desire removal of the sanction imposed by the respondent against him.
6 The respondent in its opening submitted that the applicant assaulted a learner, LM during his English period. The respondent is going to prove that the applicant was guilty as charged. The respondent was going to lead its case through witnesses and documents.
7 The respondent submitted further that SACE is a professional council for educators. The applicant was charged and fined by the department of education. Whatever transpired at SACE has no bearing on this case and does not affect this case.
Survey of parties’ evidence and arguments
8 This is a brief summary of the most salient submissions and arguments of the parties as provided for in section 138 (7)(a) of the LRA.
The Applicant’s case
Mr R Copoosamy, the applicant testified that:
9 The allegations that were leveled against him from the Department of Education were also leveled against him at SACE. At SACE, he was not found guilty of these allegations.
10 He is currently a level one educator at Brand Haven primary school. He has been an educator for 20 years and had a clean record other than this case.
11 On the 03 May 2016, LM was in his class during the English period at Lyttelton Primary School. During the 4th period after the first break at 10h20, he interacted with LM. He looked at LM’s book as he was moving around the class and was not happy with LM’s work. LM was not answering some questions according to instructions. LM had challenges with the schoolwork for some time. Previously he had discussed LM’s challenges with her parents in the first term. Even in Grade 4, he had discussed LM’s challenges with her parents. LM also had a negative attitude and perhaps a lack of concentration and that could have impacted her performance. When he had a discussion with LM’s mother about LM, LM’s mother did not want to accept that LM might be having a problem. At the conclusion of the meeting with LM’s mother, they had agreed to have a follow up meeting. However, the follow–up meeting did not materialize.
12 On 03 May 2016 after seeing that LM was not doing her work properly, he talked to LM. LM continued to do her schoolwork incorrectly. He contacted her father who sent him to her mother. When he contacted her mother, her mother said she was not available, and that she will contact him in a month he thinkss. He realized that the phone calls had made LM angry from her attitude. However, he ignored it.
13 LM had asked if she could borrow a ruler from another leaner. After the 4th period, he left the class. During the 6th period at 11h50, he interacted with LM during the English period. He had planned an assessment for learners who had missed a lesson or who needed support. The group of learners was about 35 and the other learners continued with their work.
14 At the beginning of the assessment, he informed the class that those who are not doing assessment have to work silently and not disrupt the assessment. LM was not part of the learners who were doing the assessment. After giving instructions to learners, he went to sit down in the class. A boy was disruptive. He placed the boy in front of the class facing the wall. He requested the class captain to inform Ms Sindane, the deputy principal about the incident.
15 After the boy’s incident, LM raised her hand. His first reaction was to tell her to put her hand down. However, LM said she just wanted to ask a question and to return the ruler that she borrowed. This was in a different class from the 4th period. He told LM to put the ruler on the teacher’s table and LM did that. When LM returned to her seat, she raised her hand again. He asked LM to continue with her work. LM insisted that she wanted to ask a question. He thought it was better for him to go to LM and find out what was she looking for without causing a scene for the entire class. He stood up and went towards LM. LM got up as well as he was walking towards her. LM ran to the back of the class. There was a bit of space between the last desk and the wall. He asked one of the boys to bring LM to the front, which he did. He met LM in the middle front of the class. LM said she wanted the ruler back. He asked LM to sit in front of the class and to face the black board. LM did not do as instructed. He repeated the instruction placing his hand on LM’s shoulder while LM was standing and LM sat down. He went to sit at the teacher’s desk. As soon as he sat down, he noticed that LM moved. LM was lying down next to his chair. LM had moved about a meter from the middle towards him. LM was lying flat on her back and her eyes were closed. LM’s head was towards the wall and her feet were facing towards the class. He asked one of the girls, SDS to pick LM up. The learner tried; thereafter she said LM does not want to get up and that she was not moving. He stood up and said LM get up. At the same time when he said that, he tapped LM with his feet, as he wanted her to know that he was there. The space was very narrow and LM’s legs were blocking his way. He basically had to step over LM’s leg and pick her up, holding her underarms. LM then stood up. He told LM to sit outside the class. He accompanied her to the door. LM made a scene outside the class. The next door teacher took her into his class. He returned to his seat and the rest of the period continued without incidents. He denied assaulting LM. He did not kick LM. He never slapped LM on her back.
16 There were a lot of complaints against LM by other learners as well as parents. On bundle A1 page 23 is a letter of complaint from a parent of another learner who was in the same class with LM. The complaint was lodged on 20 April 2016. The complaint was that LM was bullying the other learner. Page 24A of A1 is another complaint from another learner to the dancing instructor about LM.
17 The department of education charged him a year later for the incident involving LM. This tarnished his reputation and had an impact on his career because he was not considered for promotion to be the head of department. He stopped studying after the incident with LM because he knew that he was not going to be promoted. He loved teaching English.
During cross examination Copoosamy testified that:
18 He worked at Lyttelton for 12 years. In 2014, he was appointed as an acting head of department. He cannot confirm that this case had an impact on him not being promoted to head of department. He never lodged a grievance after his non-promotion. He applied for a position in another school and he was appointed there.
19 The reason LM ran to the back of the classroom was because she knew she could get a teacher into trouble. Although this was only his assumption. It was the first time for LM to behave in a manner that she did. The behavior could have been caused by the parents meeting that did not go well in March. After that meeting, he was supposed to have had another meeting with LM’s mother, but it did not occur.
20 On bundle B1 page 28, paragraph 6 he wrote the incident that occurred with LM. The learner, P brought LM to the front. He thinks LM decided to lie on the floor that was the reason she ended up on the floor. He did not ask LM why she was lying on the floor. He thinks if he did, she would have caused a scene. Asking could have helped, but LM was not interested in cooperating. The girl learner that he requested to pick LM up was MM. However, he could not ask MM to testify because his father who is a lawyer made it clear that he did not want MM to be involved. He asked for statements from other learners, but they told him that the case happened a while ago and their recollection of the incident was poor.
21 It was put to applicant as to why did he decide to tap LM with his feet. The applicant’s response was that LM’s eyes were closed as if she was unconscious. Tapping LM on her feet with his feet was a split-second decision. He does not understand what was improper about that. If he had bend down the class would think that he was not monitoring their work. He denied kicking LM on her leg. He said he has never used any form of corporal punishment to a child and had always been against it.
22 He admitted that he chased LM out of his class and said it was because LM was wasting time and attracting other learner’s attention. It was not going to be beneficial to keep her in the class.
23 It was put to applicant that kicking the child out of the class was denying her the right to education. He also failed to follow the process and procedures of disciplining a child who misbehaves in class. The applicant’s response was that he asked LM to sit outside the door of the classroom. He was going to be able to monitor LM. The procedure of a child who misbehaves was the following: Firstly the learner will be given a verbal warning; Isolating the child from other learners; Recording the incident in the child’s code of conduct. Issuing warning letters to the parents, then detention. The department of education had stopped him from interacting with the Grade 5 after the indent with LM.
24 The applicant further said he met Mrs Sindane and LM outside his class and wanted to ask Ms Sindane what happened with LM, but LM told Ms Sindane in front of him (the applicant) that he kicked her out of the class because she fell down. Ms Sindane asked LM, if she fall down was because he (the applicant) hit her. He then told Ms Sindane not to put words in the child’s mouth, and then he left.
25 In closing the applicant testified that:
a. The respondent’s witnesses version as to how LM came from the back to the front of the classroom
i. The applicant was not charged for any acts of assault relating to the manner in which LM came from the back to the front of the classroom. Nevertheless, LM, S, AM, Ms Burt and Ms Norris all gave different accounts of how this occurred. The only eye witnesses of this were LM, S and the applicant. S’s account was more consistent to that of the applicant. Her account differed from LM’s account.
ii. AM obtained their knowledge about the facts relating to how LM came from the back to the front of the classroom from LM and other learners (including S); yet her account differed from both LM’s and S’s. Ms Burt learnt about these facts from LM herself; yet, her (Burt’s) account differed from LM’s testimony in this regard. Ms Norris said she obtained statements about these events from LM, AM, Ms Norris and other learners. It is worthy to take note that none of these statements featured at the arbitration. Nevertheless, Ms Norris’s account, in her testimony, differed from that of AM and LM.
iii. The respondent’s testimony was not credible given these material inconsistencies. Hence, the respondent’s facts on what had transpired is unreliable and must be rejected.
iv. The only reliable source of the facts relating to these facts came from the applicant. His version was consistent, credible and should be accepted.
v. The significance of the facts relating to the manner in which LM came from the back to the front of the classroom relates to whether the respondent’s witnesses were credible. They were not.
b. The assault
i. The respondent’s witnesses provided three starkly different versions on what had transpired on 3 May 2016.
ii. Was LM slapped?
1. It can be ruled out that LM was slapped as alleged in the charge sheet. LM and all the other witnesses had denied that LM was slapped.
2. It is peculiar, despite this obvious fact, that the applicant was charged for having slapped LM.
iii. Was LM kicked?
1. Both LM and S stated that the applicant had kicked LM on her back while she was on the floor. S, however, described the kick as a tap that was not hard.
2. S, however, when she reported to LM’s mother, told her (according to AM) that the applicant had violently thrown LM in the air, and while she fell, he kicked her.
3. LM and LM’s mother told Ms Burts and Ms Norris that the applicant had thrown LM in the air, and while she flipped down, he kicked her.
4. LM and her mother testified that LM was bruised as a result of the kick. However, there was no corroborating evidence of the bruise. This is despite the submission by AM that she had taken photos of the bruise and a medical practitioner had examined LM.
5. LM explained that her mother had taken the photos that evening. AM, however, stated that she had taken the photos while at the medical practitioner’s rooms which was not on 3 May 2016.
6. The applicant submitted that the respondent’s version of the assault, by each of its witnesses, is so different, that their evidence is unreliable. The Commissioner cannot be expected, in the circumstances, to make the finding that the learner was indeed assaulted as charged. To do so would be to ignore the contrasting and contradictory versions of the respondent’s witness to each other.
7. The applicant’s version, that he merely tapped LM, must be accepted. Hence, LM, was, in all probability, not assaulted.
8. It is worthy of note that LM explained that her mother had seen the bruise in the evening of 3 May 2016 and no photo was taken of it. AM, however, testified that she saw the bruise when she took LM to the medical practitioner on a date other than 3 May 2016. She took photos of the bruise at the doctor’s rooms. These contradictory facts demonstrated the probability that they are fabricated. This view is cemented by the facts that neither the medical report nor the photos were produced in evidence.
The Respondent’s case
LM, the first witness for the respondent testified that:
26 On 03 May 2016 when the incident occurred, the applicant was in her class teaching English. The applicant had given them an activity to do. She raised her hand and asked the applicant if she could have a ruler. She raised her hand again. She then stood up and ran to the back. This was because the applicant came towards her in an angry way. The applicant came at the back and requested three boys (K, P & E) to bring her in front. The applicant then pushed her to the front; held her by her shoulders and pushed her down. She sat on her bottom facing the wall and she was not unconscious. The applicant was at her back. She was not able to see the applicant. The applicant kicked her at the back with a sharp-nosed shoe and said to her get out of my class. She stood up and went straight to the bathroom. At the bathroom, she tried to kill herself with a school tie. She intended to tie the tie around her neck and pull it. This was because she was angry at what had happened to her. Other learners came to the bathroom while she was still there. The learners than ran out to call Ms Burts. Ms Burts came to the bathroom and told her to come with her to her classroom. When they got to her classroom, Ms Burts asked her what happened and she explained what happened. After break, Ms Burts sent her to Ms Sindane. The applicant came when she was with Ms Sindane. Ms Sindane asked the applicant what happened. The applicant explained what happened. Ms Sindane responded and the applicant said to Ms Sindane she was taking her (LM’s) side. Ms Sindane instructed the applicant to go back to his class. After school, S ran to her mother (LM’s mother) and explained what happened. Her mother went to the principal to find out what happened. At night while she (LM) was taking a bath, her mother noticed that her back was hurt. Her mother informed her father and he reported the matter to the police and to the school. From that day on, she was not allowed to wear a tie at school. It was for the first time for the applicant to do this to her, but the applicant had done this before to other learners.
During cross examination LM testified that:
27 On the day of the incident, she did have a cell phone. However, no one took a picture of her back bruises, but she had told her parents about the bruises. It was put to her that it was difficult to believe that she had bruises because no one told the police about the bruises, the police officers would have taken the photos of the bruises and no adult took actions about her bruises. LM’s response was that she does not know. However, she was with her father at the police station when her father went to open the case. Her father told the police officers that her teacher kicked her. She did not tell the police that she had bruises at her back. The incident happened three years ago she cannot remember the day that she went to the police station, but it was not the same day of the incident. They went to the police station again to enquire about this matter, but the case file was empty. LM testified also that if the applicant requested her to sit down in a polite manner, she would have complied. She intended to sit down as requested, but not in the manner that the applicant forced her. She reiterated that the applicant kicked her at the back with a sharp-nosed shoe.
28 LM also testified that the first time she raised her hand was because she wanted to get her ruler back from the applicant’s desk, but the applicant told her to put her hand down. She raised her hand again as she really wanted the ruler because if she does not underline her work, the teacher will ask her why she failed to underline her work. She insisted that it was her ruler that she was asking for, although she could not remember why her ruler was on the teacher’s desk. The applicant called her father and her father referred the teacher to her mother.
29 LM testified also that the learners ran to her mother and told her what happened after school. She was intending to tell her mother, when she got to her mother’s car. She told Norris, Ms Sindane and Ms Burts about this incident at school. Her mother came to the school to speak to Ms Norris. However, when the incident happened Norris was not at the school.
SDS (S), the second witness for the respondent testified that:
30 In 2016, she was in Grade 5 and the applicant was their English teacher. The incident between the applicant and LM started when LM raised her hand. LM wanted to give someone something, but the applicant ignored her. LM stood up and gave someone something. LM ran to the back of the class when she saw that the applicant was coming towards her. The applicant requested three boys to take LM to the front of the class. One of the boys was P. The boys took LM almost to the front. The applicant took her to the front. The applicant grabbed LM’s shoulders, and then pushed LM forcing her to sit down on the floor. She (S) was able to see LM when she was in front. The applicant kicked LM at the upper back to see if she was still conscious enough. She did not see any girl learner assisting LM. LM then ran out of the class crying. She did not hear the applicant instructing LM to get out of the class. LM ran to the bathroom. When LM ran to the bathroom, she(S) was still in class. She was scared when she saw the applicant kicking LM. She heard other people saying LM wanted to commit suicide in the bathroom. After school, they went in a group to tell LM’s mother that the applicant assaulted LM. She reported the incident to LM’s mother because of the assault.
During cross examination S testified that:
31 At SACE in Page 62 bundle A2 when she said it was starting to irritate, it was because the applicant had said in class that they should not ask him anything. LM was not disturbing the class because they were not writing a test. The applicant was teaching them and had given them work to do. She thinks that LM disobeyed the applicant.
32 It was put to S that the applicant tapped LM with his foot. S maintained that LM was kicked and that was the reason she started crying, although she was not kicked that hard. S also said LM never showed her the bruises on her back.
Ms AM, the third witness for the respondent testified that:
33 She was LM’s mother. On 03 May 2016 when she arrived at Lyttelton Primary School, it was +/- 14h30, some learners ran to her. The learners explained to her as to what happened between LM and the applicant. The learners explained that what happened to LM was bad. The learners told her that the applicant kicked LM at the back and LM flipped. The learners also told her that some boys took LM to the front. The applicant after kicking LM, told her to go out of the class. They also said apparently LM went to the bathroom and wanted to commit suicide with a tie. She was also told that one of the learners called Ms Burts to check LM. Ms Burts went to the toilet and took away LM’s tie from her.
34 Ms AM said she went to the school’s office after what she heard from the learners. She enquired about the whereabouts of the principal and was informed that the principal was not there. She went to Ms Sindane to enquire if she heard what happened to LM. She was at the corridor with Ms Sindane and the applicant came to them. The applicant accused her that she was telling Ms Sindane about the matter as Ms Sindane was her friend. She told the applicant that she does not want to talk to him and that she was not talking to him. She then phoned Ms Norris in front of the applicant and Ms Sindane. Ms Norris said she was in a meeting. At that time, she had not seen LM, so she went to look for LM. Thereafter, she went straight to the police station to open a case against the applicant. The police officers that attended to her case advised her to take LM to the doctor and take pictures of LM’s bruises in front of the doctor so that the doctor’s report can match LM’s bruises. There was no way that she could not have taken LM to the doctor as she knew that the evidence from the doctor was going to be crucial for this case.
35 Ms AM said the only time when she spoke with LM about the matter was when she got home. LM explained to her that the incident started when she raised her hand for the second time in the class. LM said the reason she raised her hand was because she wanted her ruler from the applicant. LM also told her that the applicant kicked her on her back and caused her to flip. She saw LM’s bruises on her back.
36 The deputy principal and the acting principal never wanted to take actions against the applicant. The applicant was only charged after she referred a complaint to the MEC’s office and this was a year after the incident had occurred. The applicant never communicated with her after the incident or showed any remorse. Even if her child was naughty. The teacher was supposed to follow processes of disciplining the learner. The applicant never had a meeting with her in the first term. She does not have any personal vendetta against the applicant. She was just worried about her child and how she was going to cope after the incident. The applicant had used corporal punishment against LM before, by hitting her with a ruler on her fingers. The employer gave the applicant a lenient sanction, but the applicant continues to put more emotional strain against her daughter.
Under cross examination AM testified that:
37 She was not present when the incident between LM and the applicant happened. Her testimony regarding the alleged assault is limited to what she was told. It was put to her that LM and S when they testified never said LM flipped and S never testified that LM was picked up. AM’s response was that the learners who came to her when she arrived at school told her that LM flipped; LM was kicked more than once and that the applicant threw LM on the floor.
38 It was also put to AM that LM testified that she (AM) only saw the bruises on LM for the first time when she took a bath in the evening at home, now why was she saying she saw LM’s bruises when they were at the doctor. AM maintained that she saw LM’s bruises for the first time when they were at the doctor.
39 AM also testified that the phone she used to take LM’s bruises with was water damaged. The police officer that interviewed them for the first time has passed on. Another police officer that took over this matter was an Indian police officer. When they did the follow-ups on this case they were told that the docket of the case was missing.
Ms Carlinn Burts (Burts) the fourth witness for the respondent testified that:
40 In 2016, she was an Afrikaans Grade 5 teacher at Lyttelton Primary School. LM was one of her registered class learners and she was teaching her Afrikaans.
41 What she can remember about what happened on 03 May 2016 was that the learners had two English periods. It was after lunch when two learners came to report to her that there was an altercation between the applicant and LM. The learners told her that the applicant kicked LM out of his class and punched her. The learners demonstrated what happened to LM. The learners also told her that LM was in the bathroom and frantic. She went to the bathrooms to check LM. She found LM on top of the toilet with a tie as if she wanted to hang herself. As a parent, she was shocked to see LM in that state. She took LM to her classroom. LM refused to talk to her. She gave LM a bottle of Energade so that she could in the meantime figure out what to do. She took LM to Ms Norris’s office for her to deal with the matter.
42 If LM misbehaved on that day, the applicant was supposed to have followed the code of conduct for educators to discipline LM. In her view, the sanction against the applicant was too lenient, according to what she witnessed on that day.
During cross examination Ms Burts testified that:
43 She is currently a manager at a beauty parlor in Menlyn. She was dismissed as a teacher for absconding. She challenged her dismissal at the CCMA and she won the case. She also confirmed that she reported to Shamain when she was employed at Lyttelton Primary School. She was hired by the school governing body. She reported to the applicant as he was the head of department. However, she did not have a good relationship with the applicant. Ms Norris suggested that she should report to her, if there was animosity between herself and the applicant. This was after an incident where the applicant came to her class and left her teary.
44 The two learners who came to tell her what happened to LM were Z and SN. SN told her that she was in class when the incident happened. SN also told her that the applicant called LM’s name and LM went to the back of the class. The applicant instructed two or three boys to get LM from the back. LM refused to be escorted by the boys. Something happened in front, but she could not remember what was it. What she could remember was that the applicant kicked LM and slapped her from the back.
45 It was put to Ms Burts that none of the witnesses testified that LM was kicked and she went forward. Her response was that her testimony regarding the main evidence was limited to what she was told. She submitted that she said LM was punched by mistake, she meant to say LM was slapped. The incident happened three years ago. She cannot recall everything that happened. She might have put some words incorrectly. She also said the representative had no right to call her a liar.
46 She also testified that LM had a way of not listening to the teachers, but she had found a way around her. During her period, she would ask LM to sit in front. She only recorded two incidents about LM; there was no need to record more incidents of LM in the code of conduct because she was managing LM.
Ms Valdenicia Norris (Ms Norris), the fifth witness for the respondent testified that:
47 She was a principal at Lyttelton primary school when the incident between the applicant and LM occurred. When the incident occurred she was attending a meeting away from the school. On her way back she received a call from AM. AM informed her that she was going to the police station to open a case of assault against the applicant because the applicant had hit LM. She requested AM to wait for her at the school because she was close by. When she got to school she found the acting deputy principal, the applicant, AM and LM. AM was from the police station. AM told her that she was absent because the teacher did not have a right to assault LM. The applicant wanted to respond, but she told the applicant not to respond because everyone’s emotions were still high. She requested the applicant and LM’s parents to come to a meeting the following morning. The following day the applicant explained his side of the story. The applicant disputed to have kicked LM; hit LM or had physical contact with her. LM’s mother told her that when she arrived at school, other leaners approached her and told her what happened to LM and that LM wanted to commit suicide. Apparently, the applicant phoned LM’s father and informed him that LM misbehaved at school and suggested a meeting to resolve the issue. However, the applicant did not inform LM’s father that there was physical contact between him and LM.
48 She interviewed LM after receiving permission from her parents. LM explained to her that the applicant called her, but she ran to the back of the classroom. The applicant asked three boys to bring her to the front. LM said she tried to avoid the boys, but they eventually took her to the front. The applicant took her arm and she flipped. The applicant then kicked her on her back. She then ran out of the classroom and went to the bathroom where she tried to hang herself. Ms Burts found her at the bathroom and tried to calm her down. She was shocked when she heard that the learner tried to kill herself. The applicant was also shocked by the news because according to him he did not assault LM.
49 The applicant was moved out of the Grade 5 class for investigation purposes, after the investigation the applicant returned to his class. Teachers had a code of conduct of how to discipline the learners. In terms of the code of conduct, the applicant was supposed to refer LM to his head. The applicant called LM’s father twice using his cell phone. The first call was done after the incident. She was not sure when was the second call done. This conduct was not in-line with the code of conduct. Educators were not allowed to phone the parents with their cell phones. The code of conduct for educators also does not allow educators to administer corporal punishment to learners. Every morning they have brief meetings and educators are reminded every day to refrain from corporal punishment.
50 After reading the Bill of Rights and that considering that the applicant was found guilty at the internal hearing. She believes that the applicant contravened the employer’s rules. Generally, the applicant was a very good teacher, he was firm and at times one would say he was cold. At times in the morning meetings LM’s name would be mentioned and there would be discussions as to the appropriate intervention
Ms Norris during cross examination testified that:
51 She was dismissed by the employer for misconduct. She testified that LM’s mother told her that the learners told her that the applicant had assaulted LM and that she was tired of this and that she was going to open a case at the police station. LM’s mother did not explain to her how the assault occurred. LM explained to her how the assault occurred in the meeting she had with her parents. Ms Burts and the learners were requested to write statements about what transpired. The learners were not interviewed. Ms Sindane was requested to compile a report of everyone’s statements. The report was given to the school governing body.
52 When the incident occurred LM was 11 years old. LM’s explanation of the incident to her was that the applicant kicked her and she flipped. LM demonstrated how she was kicked by the applicant and also said that when she flipped the applicant kicked her. LM repeated this to her a few times during the interview. The interview was held the following day after the incident. She does not think that at arbitration LM could have testified differently about how she was assaulted. Although the incident happened a while ago.
53 Norris testified also that the applicant told her at the meeting that the reason he decided to call LM’s father after the incident was to calm him down so that he does not go to the police station. She could not remember what was written in the applicant’s statement. The applicant also mentioned other things, but she feels it was inappropriate to mention them. She disputed that she neglected to talk to the applicant about this issue. She acknowledged that LM was a firm girl that would stand her ground, but she disputed that LM bullied the applicant. She said LM was very young to can bully a teacher. She disputed to have seen complaints about LM bullying other learners or taking their belongings. She said the code of conduct was clear on what was supposed to happen if indeed LM was bullying other kids. She acknowledged that educators had discretion of not recording all the transgressions of learners.
In closing the respondent argued that:
54 They proved on balance of probabilities that the applicant was not unfairly treated by Gauteng Department of Education by imposing a guilty verdict and sanction of a fine amounted to R10000.00 which was payable in ten months. The above was supported through documentary evidences and oral evidences. The outcome required by the applicant that the sanction and verdict should be reversed should be dismissed and it is unreasonable and unfair to the victim Copoosamy was charged in terms of section 18 (1)(r) of Employment of Educators Act, 76 of 1998 (as amended). He was found guilty of kicking or slapping a learner, LM, a grade 5 learner on her back on the 5 May 2016.
55 A disciplinary enquiry was conducted, the applicant filed an appeal to the MEC’s office and his appeal was dismissed. The parent of LM also referred the matter to SACE and included other allegations against Mr. Copoosamy. It was indicated that SACE did not find him guilty. He lodged the dispute because of the outcome that was pronounced by SACE and he wanted GDE to reverse the verdict and the sanction imposed.
56 During their opening statement, they (the respondent) submitted that GDE intended to prove on a balance of probabilities that the verdict and sanction against the applicant befitted the misconduct he committed and that the above was to be proven through oral and documentary evidences. They have also submitted that bundle of documents A2 submitted by the applicant not to be accepted because it contained the proceedings that took place at SACE and transcripts of the process because the respondent was not part of SACE and also was another institution.
57 The respondent had led 5 witnesses, LM, S, AM, Ms. Burts, the former educator and Ms. Norris the former Principal.
58 Commissioner, should consider the evidence presented by LM the victim, and S the eye witness that Mr. Copoosamy during English period at Lyttelton Primary School asked LM why her hand was up when he was teaching and when he approached her by coming next to her desk, LM stood up and ran to the back of the class and Mr. Copoosamy instructed the 3 boys that were seated at the back to bring her to the front, one of the boy’s name was P and the other two she could not remember them as the incident took place in 2016.The above testimony is credible and should be considered because it was an indication that something was to happen to LM and she was afraid of the applicant and it is probable that he was going to hit her because he was in a bad mood hence she decided to run away from him.
59 LM and S corroborated each other by their submission that 3 boys brought her in front of the class and halfway he dragged her to the front and he pushed her by force and she flipped and fell in front of the class and lay flat on the floor. The above testimony is credible and admissible because page 29 of the respondent bundle, which is a statement from the applicant, also confirmed that LM lay flat on the floor as if she was unconscious. The applicant also did not rebut the above testimony during his evidence in chief.
60 Commissioner, Chapter 2 of the Bill of Rights section 28(1)(d) and section 10(f) of the Constitution states that ‘everyone has to have their dignity respected and protected.”
Analysis of parties’ evidence and arguments
61 The applicant referred an unfair labour practice dispute related to unfair disciplinary action short of dismissal in terms of section 186 (2) (b) of the LRA.
62 The issue to be determined in this matter is whether the applicant had contravened any rule for which he was charged. In the event that the applicant is found to have contravened the said rule, the issue is whether the sanction of disciplinary action short of dismissal was fair i.e. whether the fine of R10 000.00 was fair.
63 The matter turned on the dispute of facts, Stellenbosch Farmers winery Group Ltd and another v Martell ET CIE and others 2003 (1) SA11 (SCA) provided an informative guide in resolving factual dispute. The appropriate manner in which to determine factual dispute was to assess the credibility of the witnesses and the inherent probabilities and improbabilities of versions placed before me.
64 On the onset I must say, some of the witnesses were minors. The incident occurred three years ago. It is to be expected that there would be certain contradictions, discrepancies’ and inconsistencies. What has to be determined is whether the nature and extent of any inconsistencies, contradictions and discrepancies in the witnesses’ evidence is material and if so to what extent does it affect the reliability and credibility of witnesses.
In respect of the alleged assault the eye witnesses who testified were the applicant, LM and S.
65 The applicant, LM and S all testified that the incident started when LM raised her hand. LM and the applicant both testified that LM raised her hands twice. All the three witnesses testified that the applicant walked towards LM after LM had raised her hand. They all testified that LM ran to the back.
Similarities in LM’s version and S’s version
66 LM’s testimony was corroborated by S when she testified that the applicant requested three boys to bring LM to the front. One of the boys was P. The boys took LM almost to the front. The applicant met LM towards the front. LM said the applicant pushed her. Both LM and S said the applicant grabbed LM’s shoulders and forced her to sit down on the floor. Both also said the applicant kicked LM at the back. S said the applicant did not kick LM hard, but LM started crying after she was kicked. LM did not say whether the kick was hard or not. After the kicking part, both LM and S said LM ran out of the class, although S said she did not hear the applicant instructing LM to get out of the class. Both LM and the applicant testified that LM was instructed by the applicant to get out of the class.
67 Striking similarities in all the three witnesses version was that, the applicant said he placed his hand on LM’s shoulder and LM sat down. LM and S both said the applicant grabbed LM’s shoulder and forced LM to sit down on the floor. I find it probable that the applicant grabbed LM’s shoulders and forced her to sit down. This is because LM’s testimony was corroborated by S. In any case, it appeared that the applicant was frustrated and maybe angry at LM’s conduct. It is highly unlikely for a frustrated educator to just place his hand softly on a shoulder of a learner who misbehaves and ran around the classroom, for her to sit down.
68 On the other hand the applicant’s version regarding the alleged assault was not corroborated by any witness on the following submissions: the applicant as soon as he left LM, he noticed that LM moved. LM was lying flat on her back next to his chair and her eyes were closed. He tapped LM with his foot to see if LM was unconscious. He asked one of the girls to pick her up. LM refused to be picked up. He had to step over LM to pick her up holding her underarm, as the space was narrow. LM then stood up. He accompanied LM to the door.
69 S said the applicant kicked LM to see if she was unconscious, although she said he did not kick her too hard. The applicant said he tapped LM to see if she was unconscious. Clearly there was physical contact between the applicant and LM. The question is was it a tap or a kick. I find it probable that it was a kick though not too hard to cause physical bodily harm. The applicant was frustrated it was possible though that even if he did not intend to assault LM, but the tap was too hard to cause pain to the applicant. The applicants said she ran to the toilet and try to commit suicide because she was angry at what had happened to her. S’s version was that LM was kicked and felt the pain, that was the reason she ran to the bathroom. The most probable inference to be drawn was that the applicant caused LM pain; although it could be that it was intentional.
70 LM and S although they were minors they gave their evidence in a straightforward manner and they were clear. LM’s evidence was corroborated by S on how the alleged assault happened. S gave a consistent account of how the alleged assault occurred. During cross examination S remained consistent when testifying. S was a credible witness.
71 The three witnesses of the respondent, AM, Ms Burts and Ms Norris their testimony regarding the alleged assault was not first-hand evidence. AM said she was told by the learners that the applicant kicked LM and that LM flipped. Ms Burts also testified that she was told by the learners and one of the learners was present when the incident of the alleged assault occurred. Ms Burts explained that she was told that that the applicant kicked LM out of the class and punched her. During cross examination, Burts said she was told that LM was kicked and slapped at the back. However, Ms Burts also testified that LM ran to the back and that the applicant called boys to escort LM to the front. Ms Norris testified that she interviewed LM. During the interview, LM told her that the applicant called her, but she ran to the back of the classroom. Ms Norris said LM said the applicant took her arm, she flipped, and then the applicant kicked her at the back. All the three witnesses testified that the applicant kicked LM on her back. Although, there were contradictions in their testimony, Burts said the LM was punched then corrected herself and said she was slapped. The contradictions were peripheral and not material to the alleged assault as the witnesses were not eye witnesses, and were testifying on what they were told mostly by other learners, save for Norris who said she interviewed LM.
72 The applicant’s version that he held LM’s arm was supported by Ms Norris version when she said LM said the applicant held her arm, although there were contradictions on the flipped part.
73 AM’s testimony that she went to the police station on the day of the incident was supported by Ms Norris evidence, when she testified that when she got to the school AM had just came back from the police station.
74 Regarding the bruises, LM said her mother saw the bruise late at night when she was taking a bath. AM said she saw LM’s bruises at the doctor’s rooms. This contradiction is material. LM never testified that she went to the doctor. No other witness had testified that the applicant went to the doctor or that LM was bruised. The alleged bruises would have given an idea of the extent of the injury suffered. All though there are material contradiction in this testimony, in Santam Bpk.V Biddulph (2004) 2A11 SA 23 (SCA), the judge commented that “false in one, false in all” is not part of our law. In Protea Assurance Co. Ltd V Casey 1970 (2) SA 643. The court said it is equally true that finding of credibility cannot be judged in isolation, but required to be considered in light of the proven facts and the probability of the matter under consideration. The material contradictions in relation to bruises do not taint the credibility of the witnesses to the extent of nullifying credible evidence of how the assault happened.
75 In light of the above, I find that the respondent did not commit unfair labour practice against the applicant in terms of section 186(2)(b).
Award
76 The unfair labour practice dispute referred by the applicant, R Copoosamy, in terms of section 186(2)(b) against the respondent, the Gauteng Department of Education, is accordingly, dismissed.
Signature:
Commissioner: Mathabo Makwela
Sector:
Province: Gauteng
Applicant: Copoosamy R
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Misconduct
Venue: Gauteng Tshwane South District Offices
Award Date: 8 October 2019
Arbitrator: Mathabo Makwela
Case Number: PSES 742-18/19 GP
Commissioner: Mathabo Makwela
Date of Award: 08 October 2019
In the ARBITRATION between
Copoosamy R
(Applicant)
And
Gauteng Department of Education
(First Respondent)
Union/Applicant’s representative: Mr F Naidoo
Applicant’s address:
Telephone:
Telefax:
E-mail:
Respondent’s representative: Ms W Bodiba
Respondent’s address:
Telephone:
Telefax:
E-mail:
Details of parties and representation
1. This arbitration hearing took place on 22 August 2019 under the auspices of the Education Labour Relations Council (the ELRC). The hearing was held at Gauteng Tshwane South District Offices, 265 Pretorius Street, President Towers Building, Pretoria. The parties are Mr R Copoosamy (“the applicant”) and the Department of Education – Gauteng (“the respondent”). The applicant, Mr R Copoosamy, attended and was represented by Mr Frank Naidoo, his attorney. The respondent was represented by Ms Wilhemina Bodiba from its Labour Relations Department. Parties submitted bundles of documents. The applicant’s documents were marked “A1 & A2” while the respondent’s documents were marked “B1”. Busi Seoketsa interpreted the proceedings. The intermediary was Ms N D Nkosi.
Issue to be decided
2 The issue to be decided is whether the respondent committed an unfair labour practice against the applicant relating to unfair disciplinary action short of dismissal in terms of section 186(2)(b) of the LRA.
Background to the dispute
3 The applicant was in the employ of the respondent as an educator since 01 January 2005. He earned an amount of R28 748.97 per month. The applicant referred an unfair labour practice dispute related to unfair disciplinary action in terms of section 186(2)(b) of the Labour Relations Act 66 of 1995 as amended (“the LRA”). The applicant challenged substantive fairness of his dispute only.
4 The following facts were agreed to by parties as common cause issues:
4.1 The applicant was a post level two educator at Lyttelton Primary School and was teaching Grade 5 at the time of the incident.
4.2 The charges against the applicant were the following:
“It is alleged that on 03 May 2016, while on duty as an educator at Lyttelton Primary School, you assaulted a learner, i.e. LM, by kicking her and/or slapping her on her back.
In my view of your actions, you are thus charged with misconduct in terms of section 18(1)(r) of the Employment of Educators, Act 76 of 1998, as amended.”
4.3 A disciplinary hearing was held against the applicant and was concluded on 03 April 2018.The applicant was found guilty of the allegations against him, As a result he was fined R10 000.00.
4.4 The learner, LM was a Grade 5 Learner; LM was the applicant’s English student and was in the applicant’s class. At the time of the incident, the leaner was 9 years old.
5 The applicant in his opening submitted that the dispute relates to unfair labour practice in terms of section 186(2)(b), i.e. unfair disciplinary action short of dismissal. After the respondent found him guilty of the alleged offence leveled against him. The parents of the learner, LM also went to open a case against him at the South African Council of Educators (SACE), to have him deregistered as an educator. SACE exonerated him from the allegations leveled against him. The applicant prayed that should I find in his favour he would desire removal of the sanction imposed by the respondent against him.
6 The respondent in its opening submitted that the applicant assaulted a learner, LM during his English period. The respondent is going to prove that the applicant was guilty as charged. The respondent was going to lead its case through witnesses and documents.
7 The respondent submitted further that SACE is a professional council for educators. The applicant was charged and fined by the department of education. Whatever transpired at SACE has no bearing on this case and does not affect this case.
Survey of parties’ evidence and arguments
8 This is a brief summary of the most salient submissions and arguments of the parties as provided for in section 138 (7)(a) of the LRA.
The Applicant’s case
Mr R Copoosamy, the applicant testified that:
9 The allegations that were leveled against him from the Department of Education were also leveled against him at SACE. At SACE, he was not found guilty of these allegations.
10 He is currently a level one educator at Brand Haven primary school. He has been an educator for 20 years and had a clean record other than this case.
11 On the 03 May 2016, LM was in his class during the English period at Lyttelton Primary School. During the 4th period after the first break at 10h20, he interacted with LM. He looked at LM’s book as he was moving around the class and was not happy with LM’s work. LM was not answering some questions according to instructions. LM had challenges with the schoolwork for some time. Previously he had discussed LM’s challenges with her parents in the first term. Even in Grade 4, he had discussed LM’s challenges with her parents. LM also had a negative attitude and perhaps a lack of concentration and that could have impacted her performance. When he had a discussion with LM’s mother about LM, LM’s mother did not want to accept that LM might be having a problem. At the conclusion of the meeting with LM’s mother, they had agreed to have a follow up meeting. However, the follow–up meeting did not materialize.
12 On 03 May 2016 after seeing that LM was not doing her work properly, he talked to LM. LM continued to do her schoolwork incorrectly. He contacted her father who sent him to her mother. When he contacted her mother, her mother said she was not available, and that she will contact him in a month he thinkss. He realized that the phone calls had made LM angry from her attitude. However, he ignored it.
13 LM had asked if she could borrow a ruler from another leaner. After the 4th period, he left the class. During the 6th period at 11h50, he interacted with LM during the English period. He had planned an assessment for learners who had missed a lesson or who needed support. The group of learners was about 35 and the other learners continued with their work.
14 At the beginning of the assessment, he informed the class that those who are not doing assessment have to work silently and not disrupt the assessment. LM was not part of the learners who were doing the assessment. After giving instructions to learners, he went to sit down in the class. A boy was disruptive. He placed the boy in front of the class facing the wall. He requested the class captain to inform Ms Sindane, the deputy principal about the incident.
15 After the boy’s incident, LM raised her hand. His first reaction was to tell her to put her hand down. However, LM said she just wanted to ask a question and to return the ruler that she borrowed. This was in a different class from the 4th period. He told LM to put the ruler on the teacher’s table and LM did that. When LM returned to her seat, she raised her hand again. He asked LM to continue with her work. LM insisted that she wanted to ask a question. He thought it was better for him to go to LM and find out what was she looking for without causing a scene for the entire class. He stood up and went towards LM. LM got up as well as he was walking towards her. LM ran to the back of the class. There was a bit of space between the last desk and the wall. He asked one of the boys to bring LM to the front, which he did. He met LM in the middle front of the class. LM said she wanted the ruler back. He asked LM to sit in front of the class and to face the black board. LM did not do as instructed. He repeated the instruction placing his hand on LM’s shoulder while LM was standing and LM sat down. He went to sit at the teacher’s desk. As soon as he sat down, he noticed that LM moved. LM was lying down next to his chair. LM had moved about a meter from the middle towards him. LM was lying flat on her back and her eyes were closed. LM’s head was towards the wall and her feet were facing towards the class. He asked one of the girls, SDS to pick LM up. The learner tried; thereafter she said LM does not want to get up and that she was not moving. He stood up and said LM get up. At the same time when he said that, he tapped LM with his feet, as he wanted her to know that he was there. The space was very narrow and LM’s legs were blocking his way. He basically had to step over LM’s leg and pick her up, holding her underarms. LM then stood up. He told LM to sit outside the class. He accompanied her to the door. LM made a scene outside the class. The next door teacher took her into his class. He returned to his seat and the rest of the period continued without incidents. He denied assaulting LM. He did not kick LM. He never slapped LM on her back.
16 There were a lot of complaints against LM by other learners as well as parents. On bundle A1 page 23 is a letter of complaint from a parent of another learner who was in the same class with LM. The complaint was lodged on 20 April 2016. The complaint was that LM was bullying the other learner. Page 24A of A1 is another complaint from another learner to the dancing instructor about LM.
17 The department of education charged him a year later for the incident involving LM. This tarnished his reputation and had an impact on his career because he was not considered for promotion to be the head of department. He stopped studying after the incident with LM because he knew that he was not going to be promoted. He loved teaching English.
During cross examination Copoosamy testified that:
18 He worked at Lyttelton for 12 years. In 2014, he was appointed as an acting head of department. He cannot confirm that this case had an impact on him not being promoted to head of department. He never lodged a grievance after his non-promotion. He applied for a position in another school and he was appointed there.
19 The reason LM ran to the back of the classroom was because she knew she could get a teacher into trouble. Although this was only his assumption. It was the first time for LM to behave in a manner that she did. The behavior could have been caused by the parents meeting that did not go well in March. After that meeting, he was supposed to have had another meeting with LM’s mother, but it did not occur.
20 On bundle B1 page 28, paragraph 6 he wrote the incident that occurred with LM. The learner, P brought LM to the front. He thinks LM decided to lie on the floor that was the reason she ended up on the floor. He did not ask LM why she was lying on the floor. He thinks if he did, she would have caused a scene. Asking could have helped, but LM was not interested in cooperating. The girl learner that he requested to pick LM up was MM. However, he could not ask MM to testify because his father who is a lawyer made it clear that he did not want MM to be involved. He asked for statements from other learners, but they told him that the case happened a while ago and their recollection of the incident was poor.
21 It was put to applicant as to why did he decide to tap LM with his feet. The applicant’s response was that LM’s eyes were closed as if she was unconscious. Tapping LM on her feet with his feet was a split-second decision. He does not understand what was improper about that. If he had bend down the class would think that he was not monitoring their work. He denied kicking LM on her leg. He said he has never used any form of corporal punishment to a child and had always been against it.
22 He admitted that he chased LM out of his class and said it was because LM was wasting time and attracting other learner’s attention. It was not going to be beneficial to keep her in the class.
23 It was put to applicant that kicking the child out of the class was denying her the right to education. He also failed to follow the process and procedures of disciplining a child who misbehaves in class. The applicant’s response was that he asked LM to sit outside the door of the classroom. He was going to be able to monitor LM. The procedure of a child who misbehaves was the following: Firstly the learner will be given a verbal warning; Isolating the child from other learners; Recording the incident in the child’s code of conduct. Issuing warning letters to the parents, then detention. The department of education had stopped him from interacting with the Grade 5 after the indent with LM.
24 The applicant further said he met Mrs Sindane and LM outside his class and wanted to ask Ms Sindane what happened with LM, but LM told Ms Sindane in front of him (the applicant) that he kicked her out of the class because she fell down. Ms Sindane asked LM, if she fall down was because he (the applicant) hit her. He then told Ms Sindane not to put words in the child’s mouth, and then he left.
25 In closing the applicant testified that:
a. The respondent’s witnesses version as to how LM came from the back to the front of the classroom
i. The applicant was not charged for any acts of assault relating to the manner in which LM came from the back to the front of the classroom. Nevertheless, LM, S, AM, Ms Burt and Ms Norris all gave different accounts of how this occurred. The only eye witnesses of this were LM, S and the applicant. S’s account was more consistent to that of the applicant. Her account differed from LM’s account.
ii. AM obtained their knowledge about the facts relating to how LM came from the back to the front of the classroom from LM and other learners (including S); yet her account differed from both LM’s and S’s. Ms Burt learnt about these facts from LM herself; yet, her (Burt’s) account differed from LM’s testimony in this regard. Ms Norris said she obtained statements about these events from LM, AM, Ms Norris and other learners. It is worthy to take note that none of these statements featured at the arbitration. Nevertheless, Ms Norris’s account, in her testimony, differed from that of AM and LM.
iii. The respondent’s testimony was not credible given these material inconsistencies. Hence, the respondent’s facts on what had transpired is unreliable and must be rejected.
iv. The only reliable source of the facts relating to these facts came from the applicant. His version was consistent, credible and should be accepted.
v. The significance of the facts relating to the manner in which LM came from the back to the front of the classroom relates to whether the respondent’s witnesses were credible. They were not.
b. The assault
i. The respondent’s witnesses provided three starkly different versions on what had transpired on 3 May 2016.
ii. Was LM slapped?
1. It can be ruled out that LM was slapped as alleged in the charge sheet. LM and all the other witnesses had denied that LM was slapped.
2. It is peculiar, despite this obvious fact, that the applicant was charged for having slapped LM.
iii. Was LM kicked?
1. Both LM and S stated that the applicant had kicked LM on her back while she was on the floor. S, however, described the kick as a tap that was not hard.
2. S, however, when she reported to LM’s mother, told her (according to AM) that the applicant had violently thrown LM in the air, and while she fell, he kicked her.
3. LM and LM’s mother told Ms Burts and Ms Norris that the applicant had thrown LM in the air, and while she flipped down, he kicked her.
4. LM and her mother testified that LM was bruised as a result of the kick. However, there was no corroborating evidence of the bruise. This is despite the submission by AM that she had taken photos of the bruise and a medical practitioner had examined LM.
5. LM explained that her mother had taken the photos that evening. AM, however, stated that she had taken the photos while at the medical practitioner’s rooms which was not on 3 May 2016.
6. The applicant submitted that the respondent’s version of the assault, by each of its witnesses, is so different, that their evidence is unreliable. The Commissioner cannot be expected, in the circumstances, to make the finding that the learner was indeed assaulted as charged. To do so would be to ignore the contrasting and contradictory versions of the respondent’s witness to each other.
7. The applicant’s version, that he merely tapped LM, must be accepted. Hence, LM, was, in all probability, not assaulted.
8. It is worthy of note that LM explained that her mother had seen the bruise in the evening of 3 May 2016 and no photo was taken of it. AM, however, testified that she saw the bruise when she took LM to the medical practitioner on a date other than 3 May 2016. She took photos of the bruise at the doctor’s rooms. These contradictory facts demonstrated the probability that they are fabricated. This view is cemented by the facts that neither the medical report nor the photos were produced in evidence.
The Respondent’s case
LM, the first witness for the respondent testified that:
26 On 03 May 2016 when the incident occurred, the applicant was in her class teaching English. The applicant had given them an activity to do. She raised her hand and asked the applicant if she could have a ruler. She raised her hand again. She then stood up and ran to the back. This was because the applicant came towards her in an angry way. The applicant came at the back and requested three boys (K, P & E) to bring her in front. The applicant then pushed her to the front; held her by her shoulders and pushed her down. She sat on her bottom facing the wall and she was not unconscious. The applicant was at her back. She was not able to see the applicant. The applicant kicked her at the back with a sharp-nosed shoe and said to her get out of my class. She stood up and went straight to the bathroom. At the bathroom, she tried to kill herself with a school tie. She intended to tie the tie around her neck and pull it. This was because she was angry at what had happened to her. Other learners came to the bathroom while she was still there. The learners than ran out to call Ms Burts. Ms Burts came to the bathroom and told her to come with her to her classroom. When they got to her classroom, Ms Burts asked her what happened and she explained what happened. After break, Ms Burts sent her to Ms Sindane. The applicant came when she was with Ms Sindane. Ms Sindane asked the applicant what happened. The applicant explained what happened. Ms Sindane responded and the applicant said to Ms Sindane she was taking her (LM’s) side. Ms Sindane instructed the applicant to go back to his class. After school, S ran to her mother (LM’s mother) and explained what happened. Her mother went to the principal to find out what happened. At night while she (LM) was taking a bath, her mother noticed that her back was hurt. Her mother informed her father and he reported the matter to the police and to the school. From that day on, she was not allowed to wear a tie at school. It was for the first time for the applicant to do this to her, but the applicant had done this before to other learners.
During cross examination LM testified that:
27 On the day of the incident, she did have a cell phone. However, no one took a picture of her back bruises, but she had told her parents about the bruises. It was put to her that it was difficult to believe that she had bruises because no one told the police about the bruises, the police officers would have taken the photos of the bruises and no adult took actions about her bruises. LM’s response was that she does not know. However, she was with her father at the police station when her father went to open the case. Her father told the police officers that her teacher kicked her. She did not tell the police that she had bruises at her back. The incident happened three years ago she cannot remember the day that she went to the police station, but it was not the same day of the incident. They went to the police station again to enquire about this matter, but the case file was empty. LM testified also that if the applicant requested her to sit down in a polite manner, she would have complied. She intended to sit down as requested, but not in the manner that the applicant forced her. She reiterated that the applicant kicked her at the back with a sharp-nosed shoe.
28 LM also testified that the first time she raised her hand was because she wanted to get her ruler back from the applicant’s desk, but the applicant told her to put her hand down. She raised her hand again as she really wanted the ruler because if she does not underline her work, the teacher will ask her why she failed to underline her work. She insisted that it was her ruler that she was asking for, although she could not remember why her ruler was on the teacher’s desk. The applicant called her father and her father referred the teacher to her mother.
29 LM testified also that the learners ran to her mother and told her what happened after school. She was intending to tell her mother, when she got to her mother’s car. She told Norris, Ms Sindane and Ms Burts about this incident at school. Her mother came to the school to speak to Ms Norris. However, when the incident happened Norris was not at the school.
SDS (S), the second witness for the respondent testified that:
30 In 2016, she was in Grade 5 and the applicant was their English teacher. The incident between the applicant and LM started when LM raised her hand. LM wanted to give someone something, but the applicant ignored her. LM stood up and gave someone something. LM ran to the back of the class when she saw that the applicant was coming towards her. The applicant requested three boys to take LM to the front of the class. One of the boys was P. The boys took LM almost to the front. The applicant took her to the front. The applicant grabbed LM’s shoulders, and then pushed LM forcing her to sit down on the floor. She (S) was able to see LM when she was in front. The applicant kicked LM at the upper back to see if she was still conscious enough. She did not see any girl learner assisting LM. LM then ran out of the class crying. She did not hear the applicant instructing LM to get out of the class. LM ran to the bathroom. When LM ran to the bathroom, she(S) was still in class. She was scared when she saw the applicant kicking LM. She heard other people saying LM wanted to commit suicide in the bathroom. After school, they went in a group to tell LM’s mother that the applicant assaulted LM. She reported the incident to LM’s mother because of the assault.
During cross examination S testified that:
31 At SACE in Page 62 bundle A2 when she said it was starting to irritate, it was because the applicant had said in class that they should not ask him anything. LM was not disturbing the class because they were not writing a test. The applicant was teaching them and had given them work to do. She thinks that LM disobeyed the applicant.
32 It was put to S that the applicant tapped LM with his foot. S maintained that LM was kicked and that was the reason she started crying, although she was not kicked that hard. S also said LM never showed her the bruises on her back.
Ms AM, the third witness for the respondent testified that:
33 She was LM’s mother. On 03 May 2016 when she arrived at Lyttelton Primary School, it was +/- 14h30, some learners ran to her. The learners explained to her as to what happened between LM and the applicant. The learners explained that what happened to LM was bad. The learners told her that the applicant kicked LM at the back and LM flipped. The learners also told her that some boys took LM to the front. The applicant after kicking LM, told her to go out of the class. They also said apparently LM went to the bathroom and wanted to commit suicide with a tie. She was also told that one of the learners called Ms Burts to check LM. Ms Burts went to the toilet and took away LM’s tie from her.
34 Ms AM said she went to the school’s office after what she heard from the learners. She enquired about the whereabouts of the principal and was informed that the principal was not there. She went to Ms Sindane to enquire if she heard what happened to LM. She was at the corridor with Ms Sindane and the applicant came to them. The applicant accused her that she was telling Ms Sindane about the matter as Ms Sindane was her friend. She told the applicant that she does not want to talk to him and that she was not talking to him. She then phoned Ms Norris in front of the applicant and Ms Sindane. Ms Norris said she was in a meeting. At that time, she had not seen LM, so she went to look for LM. Thereafter, she went straight to the police station to open a case against the applicant. The police officers that attended to her case advised her to take LM to the doctor and take pictures of LM’s bruises in front of the doctor so that the doctor’s report can match LM’s bruises. There was no way that she could not have taken LM to the doctor as she knew that the evidence from the doctor was going to be crucial for this case.
35 Ms AM said the only time when she spoke with LM about the matter was when she got home. LM explained to her that the incident started when she raised her hand for the second time in the class. LM said the reason she raised her hand was because she wanted her ruler from the applicant. LM also told her that the applicant kicked her on her back and caused her to flip. She saw LM’s bruises on her back.
36 The deputy principal and the acting principal never wanted to take actions against the applicant. The applicant was only charged after she referred a complaint to the MEC’s office and this was a year after the incident had occurred. The applicant never communicated with her after the incident or showed any remorse. Even if her child was naughty. The teacher was supposed to follow processes of disciplining the learner. The applicant never had a meeting with her in the first term. She does not have any personal vendetta against the applicant. She was just worried about her child and how she was going to cope after the incident. The applicant had used corporal punishment against LM before, by hitting her with a ruler on her fingers. The employer gave the applicant a lenient sanction, but the applicant continues to put more emotional strain against her daughter.
Under cross examination AM testified that:
37 She was not present when the incident between LM and the applicant happened. Her testimony regarding the alleged assault is limited to what she was told. It was put to her that LM and S when they testified never said LM flipped and S never testified that LM was picked up. AM’s response was that the learners who came to her when she arrived at school told her that LM flipped; LM was kicked more than once and that the applicant threw LM on the floor.
38 It was also put to AM that LM testified that she (AM) only saw the bruises on LM for the first time when she took a bath in the evening at home, now why was she saying she saw LM’s bruises when they were at the doctor. AM maintained that she saw LM’s bruises for the first time when they were at the doctor.
39 AM also testified that the phone she used to take LM’s bruises with was water damaged. The police officer that interviewed them for the first time has passed on. Another police officer that took over this matter was an Indian police officer. When they did the follow-ups on this case they were told that the docket of the case was missing.
Ms Carlinn Burts (Burts) the fourth witness for the respondent testified that:
40 In 2016, she was an Afrikaans Grade 5 teacher at Lyttelton Primary School. LM was one of her registered class learners and she was teaching her Afrikaans.
41 What she can remember about what happened on 03 May 2016 was that the learners had two English periods. It was after lunch when two learners came to report to her that there was an altercation between the applicant and LM. The learners told her that the applicant kicked LM out of his class and punched her. The learners demonstrated what happened to LM. The learners also told her that LM was in the bathroom and frantic. She went to the bathrooms to check LM. She found LM on top of the toilet with a tie as if she wanted to hang herself. As a parent, she was shocked to see LM in that state. She took LM to her classroom. LM refused to talk to her. She gave LM a bottle of Energade so that she could in the meantime figure out what to do. She took LM to Ms Norris’s office for her to deal with the matter.
42 If LM misbehaved on that day, the applicant was supposed to have followed the code of conduct for educators to discipline LM. In her view, the sanction against the applicant was too lenient, according to what she witnessed on that day.
During cross examination Ms Burts testified that:
43 She is currently a manager at a beauty parlor in Menlyn. She was dismissed as a teacher for absconding. She challenged her dismissal at the CCMA and she won the case. She also confirmed that she reported to Shamain when she was employed at Lyttelton Primary School. She was hired by the school governing body. She reported to the applicant as he was the head of department. However, she did not have a good relationship with the applicant. Ms Norris suggested that she should report to her, if there was animosity between herself and the applicant. This was after an incident where the applicant came to her class and left her teary.
44 The two learners who came to tell her what happened to LM were Z and SN. SN told her that she was in class when the incident happened. SN also told her that the applicant called LM’s name and LM went to the back of the class. The applicant instructed two or three boys to get LM from the back. LM refused to be escorted by the boys. Something happened in front, but she could not remember what was it. What she could remember was that the applicant kicked LM and slapped her from the back.
45 It was put to Ms Burts that none of the witnesses testified that LM was kicked and she went forward. Her response was that her testimony regarding the main evidence was limited to what she was told. She submitted that she said LM was punched by mistake, she meant to say LM was slapped. The incident happened three years ago. She cannot recall everything that happened. She might have put some words incorrectly. She also said the representative had no right to call her a liar.
46 She also testified that LM had a way of not listening to the teachers, but she had found a way around her. During her period, she would ask LM to sit in front. She only recorded two incidents about LM; there was no need to record more incidents of LM in the code of conduct because she was managing LM.
Ms Valdenicia Norris (Ms Norris), the fifth witness for the respondent testified that:
47 She was a principal at Lyttelton primary school when the incident between the applicant and LM occurred. When the incident occurred she was attending a meeting away from the school. On her way back she received a call from AM. AM informed her that she was going to the police station to open a case of assault against the applicant because the applicant had hit LM. She requested AM to wait for her at the school because she was close by. When she got to school she found the acting deputy principal, the applicant, AM and LM. AM was from the police station. AM told her that she was absent because the teacher did not have a right to assault LM. The applicant wanted to respond, but she told the applicant not to respond because everyone’s emotions were still high. She requested the applicant and LM’s parents to come to a meeting the following morning. The following day the applicant explained his side of the story. The applicant disputed to have kicked LM; hit LM or had physical contact with her. LM’s mother told her that when she arrived at school, other leaners approached her and told her what happened to LM and that LM wanted to commit suicide. Apparently, the applicant phoned LM’s father and informed him that LM misbehaved at school and suggested a meeting to resolve the issue. However, the applicant did not inform LM’s father that there was physical contact between him and LM.
48 She interviewed LM after receiving permission from her parents. LM explained to her that the applicant called her, but she ran to the back of the classroom. The applicant asked three boys to bring her to the front. LM said she tried to avoid the boys, but they eventually took her to the front. The applicant took her arm and she flipped. The applicant then kicked her on her back. She then ran out of the classroom and went to the bathroom where she tried to hang herself. Ms Burts found her at the bathroom and tried to calm her down. She was shocked when she heard that the learner tried to kill herself. The applicant was also shocked by the news because according to him he did not assault LM.
49 The applicant was moved out of the Grade 5 class for investigation purposes, after the investigation the applicant returned to his class. Teachers had a code of conduct of how to discipline the learners. In terms of the code of conduct, the applicant was supposed to refer LM to his head. The applicant called LM’s father twice using his cell phone. The first call was done after the incident. She was not sure when was the second call done. This conduct was not in-line with the code of conduct. Educators were not allowed to phone the parents with their cell phones. The code of conduct for educators also does not allow educators to administer corporal punishment to learners. Every morning they have brief meetings and educators are reminded every day to refrain from corporal punishment.
50 After reading the Bill of Rights and that considering that the applicant was found guilty at the internal hearing. She believes that the applicant contravened the employer’s rules. Generally, the applicant was a very good teacher, he was firm and at times one would say he was cold. At times in the morning meetings LM’s name would be mentioned and there would be discussions as to the appropriate intervention
Ms Norris during cross examination testified that:
51 She was dismissed by the employer for misconduct. She testified that LM’s mother told her that the learners told her that the applicant had assaulted LM and that she was tired of this and that she was going to open a case at the police station. LM’s mother did not explain to her how the assault occurred. LM explained to her how the assault occurred in the meeting she had with her parents. Ms Burts and the learners were requested to write statements about what transpired. The learners were not interviewed. Ms Sindane was requested to compile a report of everyone’s statements. The report was given to the school governing body.
52 When the incident occurred LM was 11 years old. LM’s explanation of the incident to her was that the applicant kicked her and she flipped. LM demonstrated how she was kicked by the applicant and also said that when she flipped the applicant kicked her. LM repeated this to her a few times during the interview. The interview was held the following day after the incident. She does not think that at arbitration LM could have testified differently about how she was assaulted. Although the incident happened a while ago.
53 Norris testified also that the applicant told her at the meeting that the reason he decided to call LM’s father after the incident was to calm him down so that he does not go to the police station. She could not remember what was written in the applicant’s statement. The applicant also mentioned other things, but she feels it was inappropriate to mention them. She disputed that she neglected to talk to the applicant about this issue. She acknowledged that LM was a firm girl that would stand her ground, but she disputed that LM bullied the applicant. She said LM was very young to can bully a teacher. She disputed to have seen complaints about LM bullying other learners or taking their belongings. She said the code of conduct was clear on what was supposed to happen if indeed LM was bullying other kids. She acknowledged that educators had discretion of not recording all the transgressions of learners.
In closing the respondent argued that:
54 They proved on balance of probabilities that the applicant was not unfairly treated by Gauteng Department of Education by imposing a guilty verdict and sanction of a fine amounted to R10000.00 which was payable in ten months. The above was supported through documentary evidences and oral evidences. The outcome required by the applicant that the sanction and verdict should be reversed should be dismissed and it is unreasonable and unfair to the victim Copoosamy was charged in terms of section 18 (1)(r) of Employment of Educators Act, 76 of 1998 (as amended). He was found guilty of kicking or slapping a learner, LM, a grade 5 learner on her back on the 5 May 2016.
55 A disciplinary enquiry was conducted, the applicant filed an appeal to the MEC’s office and his appeal was dismissed. The parent of LM also referred the matter to SACE and included other allegations against Mr. Copoosamy. It was indicated that SACE did not find him guilty. He lodged the dispute because of the outcome that was pronounced by SACE and he wanted GDE to reverse the verdict and the sanction imposed.
56 During their opening statement, they (the respondent) submitted that GDE intended to prove on a balance of probabilities that the verdict and sanction against the applicant befitted the misconduct he committed and that the above was to be proven through oral and documentary evidences. They have also submitted that bundle of documents A2 submitted by the applicant not to be accepted because it contained the proceedings that took place at SACE and transcripts of the process because the respondent was not part of SACE and also was another institution.
57 The respondent had led 5 witnesses, LM, S, AM, Ms. Burts, the former educator and Ms. Norris the former Principal.
58 Commissioner, should consider the evidence presented by LM the victim, and S the eye witness that Mr. Copoosamy during English period at Lyttelton Primary School asked LM why her hand was up when he was teaching and when he approached her by coming next to her desk, LM stood up and ran to the back of the class and Mr. Copoosamy instructed the 3 boys that were seated at the back to bring her to the front, one of the boy’s name was P and the other two she could not remember them as the incident took place in 2016.The above testimony is credible and should be considered because it was an indication that something was to happen to LM and she was afraid of the applicant and it is probable that he was going to hit her because he was in a bad mood hence she decided to run away from him.
59 LM and S corroborated each other by their submission that 3 boys brought her in front of the class and halfway he dragged her to the front and he pushed her by force and she flipped and fell in front of the class and lay flat on the floor. The above testimony is credible and admissible because page 29 of the respondent bundle, which is a statement from the applicant, also confirmed that LM lay flat on the floor as if she was unconscious. The applicant also did not rebut the above testimony during his evidence in chief.
60 Commissioner, Chapter 2 of the Bill of Rights section 28(1)(d) and section 10(f) of the Constitution states that ‘everyone has to have their dignity respected and protected.”
Analysis of parties’ evidence and arguments
61 The applicant referred an unfair labour practice dispute related to unfair disciplinary action short of dismissal in terms of section 186 (2) (b) of the LRA.
62 The issue to be determined in this matter is whether the applicant had contravened any rule for which he was charged. In the event that the applicant is found to have contravened the said rule, the issue is whether the sanction of disciplinary action short of dismissal was fair i.e. whether the fine of R10 000.00 was fair.
63 The matter turned on the dispute of facts, Stellenbosch Farmers winery Group Ltd and another v Martell ET CIE and others 2003 (1) SA11 (SCA) provided an informative guide in resolving factual dispute. The appropriate manner in which to determine factual dispute was to assess the credibility of the witnesses and the inherent probabilities and improbabilities of versions placed before me.
64 On the onset I must say, some of the witnesses were minors. The incident occurred three years ago. It is to be expected that there would be certain contradictions, discrepancies’ and inconsistencies. What has to be determined is whether the nature and extent of any inconsistencies, contradictions and discrepancies in the witnesses’ evidence is material and if so to what extent does it affect the reliability and credibility of witnesses.
In respect of the alleged assault the eye witnesses who testified were the applicant, LM and S.
65 The applicant, LM and S all testified that the incident started when LM raised her hand. LM and the applicant both testified that LM raised her hands twice. All the three witnesses testified that the applicant walked towards LM after LM had raised her hand. They all testified that LM ran to the back.
Similarities in LM’s version and S’s version
66 LM’s testimony was corroborated by S when she testified that the applicant requested three boys to bring LM to the front. One of the boys was P. The boys took LM almost to the front. The applicant met LM towards the front. LM said the applicant pushed her. Both LM and S said the applicant grabbed LM’s shoulders and forced her to sit down on the floor. Both also said the applicant kicked LM at the back. S said the applicant did not kick LM hard, but LM started crying after she was kicked. LM did not say whether the kick was hard or not. After the kicking part, both LM and S said LM ran out of the class, although S said she did not hear the applicant instructing LM to get out of the class. Both LM and the applicant testified that LM was instructed by the applicant to get out of the class.
67 Striking similarities in all the three witnesses version was that, the applicant said he placed his hand on LM’s shoulder and LM sat down. LM and S both said the applicant grabbed LM’s shoulder and forced LM to sit down on the floor. I find it probable that the applicant grabbed LM’s shoulders and forced her to sit down. This is because LM’s testimony was corroborated by S. In any case, it appeared that the applicant was frustrated and maybe angry at LM’s conduct. It is highly unlikely for a frustrated educator to just place his hand softly on a shoulder of a learner who misbehaves and ran around the classroom, for her to sit down.
68 On the other hand the applicant’s version regarding the alleged assault was not corroborated by any witness on the following submissions: the applicant as soon as he left LM, he noticed that LM moved. LM was lying flat on her back next to his chair and her eyes were closed. He tapped LM with his foot to see if LM was unconscious. He asked one of the girls to pick her up. LM refused to be picked up. He had to step over LM to pick her up holding her underarm, as the space was narrow. LM then stood up. He accompanied LM to the door.
69 S said the applicant kicked LM to see if she was unconscious, although she said he did not kick her too hard. The applicant said he tapped LM to see if she was unconscious. Clearly there was physical contact between the applicant and LM. The question is was it a tap or a kick. I find it probable that it was a kick though not too hard to cause physical bodily harm. The applicant was frustrated it was possible though that even if he did not intend to assault LM, but the tap was too hard to cause pain to the applicant. The applicants said she ran to the toilet and try to commit suicide because she was angry at what had happened to her. S’s version was that LM was kicked and felt the pain, that was the reason she ran to the bathroom. The most probable inference to be drawn was that the applicant caused LM pain; although it could be that it was intentional.
70 LM and S although they were minors they gave their evidence in a straightforward manner and they were clear. LM’s evidence was corroborated by S on how the alleged assault happened. S gave a consistent account of how the alleged assault occurred. During cross examination S remained consistent when testifying. S was a credible witness.
71 The three witnesses of the respondent, AM, Ms Burts and Ms Norris their testimony regarding the alleged assault was not first-hand evidence. AM said she was told by the learners that the applicant kicked LM and that LM flipped. Ms Burts also testified that she was told by the learners and one of the learners was present when the incident of the alleged assault occurred. Ms Burts explained that she was told that that the applicant kicked LM out of the class and punched her. During cross examination, Burts said she was told that LM was kicked and slapped at the back. However, Ms Burts also testified that LM ran to the back and that the applicant called boys to escort LM to the front. Ms Norris testified that she interviewed LM. During the interview, LM told her that the applicant called her, but she ran to the back of the classroom. Ms Norris said LM said the applicant took her arm, she flipped, and then the applicant kicked her at the back. All the three witnesses testified that the applicant kicked LM on her back. Although, there were contradictions in their testimony, Burts said the LM was punched then corrected herself and said she was slapped. The contradictions were peripheral and not material to the alleged assault as the witnesses were not eye witnesses, and were testifying on what they were told mostly by other learners, save for Norris who said she interviewed LM.
72 The applicant’s version that he held LM’s arm was supported by Ms Norris version when she said LM said the applicant held her arm, although there were contradictions on the flipped part.
73 AM’s testimony that she went to the police station on the day of the incident was supported by Ms Norris evidence, when she testified that when she got to the school AM had just came back from the police station.
74 Regarding the bruises, LM said her mother saw the bruise late at night when she was taking a bath. AM said she saw LM’s bruises at the doctor’s rooms. This contradiction is material. LM never testified that she went to the doctor. No other witness had testified that the applicant went to the doctor or that LM was bruised. The alleged bruises would have given an idea of the extent of the injury suffered. All though there are material contradiction in this testimony, in Santam Bpk.V Biddulph (2004) 2A11 SA 23 (SCA), the judge commented that “false in one, false in all” is not part of our law. In Protea Assurance Co. Ltd V Casey 1970 (2) SA 643. The court said it is equally true that finding of credibility cannot be judged in isolation, but required to be considered in light of the proven facts and the probability of the matter under consideration. The material contradictions in relation to bruises do not taint the credibility of the witnesses to the extent of nullifying credible evidence of how the assault happened.
75 In light of the above, I find that the respondent did not commit unfair labour practice against the applicant in terms of section 186(2)(b).
Award
76 The unfair labour practice dispute referred by the applicant, R Copoosamy, in terms of section 186(2)(b) against the respondent, the Gauteng Department of Education, is accordingly, dismissed.
Signature:
Commissioner: Mathabo Makwela
Sector: