ELRC644-20/21 EC
Text
ELRC847-20/21NW
Text
Award Date:
04 October 2021
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN CENTURION
CASE NO.: ELRC847-20/21NW
In the matter between:-
SELLO PATRICK TEFFO APPLICANT
and
DEPARTMENT OF EDUCATION- NW RESPONDENT
ARBITRATOR: MMAMAHLOLA GLORIA RABYANYANA
HEARD: 02,17,31 August and 02 September 2021
DATE OF AWARD: 04 October 2021
SUMMARY: Section 186 (2) (a) unfair dismissal
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
1. A virtual arbitration was held on 02, 17, 31 August and 02 September 2021.
2. The Applicant presented his case. The respondent was represented by Mr K.K Keetile from its offices. The parties were given until 09 September 2021. The respondent’s arguments were received by the 09 September. The applicant submitted by emailing same to the Senior Manager by mistake. Following my enquiry, I received the applicant’s closing arguments and explanation on 15 September 2021. The applicant’s bundle is marked A and the respondent B. The proceedings were mechanically recorded.
BACKGROUND TO THE ISSUE
3. The Applicant had referred a dispute about unfair dismissal to the Council for conciliation. The dispute could not be resolved and a certificate of outcome of conciliation to that effect was issued. The applicant then requested that the dispute be arbitrated.
ISSUE TO BE DECIDED
4. I am required to decide whether the Applicant’s dismissal was substantively fair i.e if he had committed the offence and if dismissal is an appropriate sanction. If I find in the applicant’s favour, I must determine the appropriate relief. The applicant seeks reinstatement or compensation of R4M.
AGREED FACTS
5. The parties agreed on the following :-
5.1 The applicant was employed by respondent 01 January 2011 at Retlakgona Primary School. He was dismissed on 02 March 2021 for 7 counts of misconduct as per the charge sheet :-
5.1.1 Failing to do lesson preparations, evaluate learners’ academic progress, use variety of strategies to meet outcome of the curriculum, establish classroom environment which stimulate positive learning and utilize the learners `s experience as a fundamental and valuable resources ;
5.1.2 Failing to participate in the Professional Support Forum (PSF) on 15 April 2019 ;
5.1.3 Failing to provide complete records of learner’s progress that provide insight into individual learner’s progress during term 1 of 2019 ;
5.1.4 Failing to administer preparatory test for the Grade 7 Learners during term 2 of 2019, as advised by the Subject Specialist resulting in learners performing poorly.
5.1.5 Failing to perform administrative duties on 15 February 2019, when he did not collect fees from the learners in his classroom during fund raising activities.
5.1.6 Failing to meet parents on 12 July 2019 while on duty to discuss conduct and progress of their learners during collection of progress reports
5.1.7 Assaulting Mr Modiroa on 12 September 2019, while on duty at Retlakgona Primary School.
5.2 The applicant was aware of the rules save for charge 7. Consistent application of the rule and procedural fairness are not in dispute.
SURVEY OF EVIDENCE
6. Mr William Modisawatsona Modiroa testified that he is the Assistant Director: Labour Relations. On 12 September 2019 he went to Retlakgona Primary School to meet with the applicant, the principal and Departmental Heads (Ms Dijoe and Ms Ratshoene). The purpose of the meeting was to investigate the applicant’s poor performance at the school and his behaviour at Programme Support Forum (PSF).
7. The applicant informed him that the reason he was frequently moving in and out during the PSF session was because he was drinking water and wanted to relieve himself. About his poor performance, the applicant informed him that the parents do not understand him because he only speaks English.
8. The reason his mark sheets were not complete was because learners were not submitting tasks. He was not collecting donation monies. According to the applicant’ school base assessment tool used by his Supervisor, he was not complying with annual teaching program.
9. According to the principal the applicant was not giving learners tasks which resulted in their poor performance. He said a duty of an educator is to teach more than sitting in the class and ensure that learners are assessed on what they were taught. Education must be in proper manner by creating a conducive environment for learners. There will be no proper teaching if the class is noisy with no order. The learners’ rights to learning would be infringed.
10. When the meeting finished, he remained behind with the principal and the
applicant left the office. When he left the principal’s office, he found the
applicant waiting for him outside towards the reception area. The applicant confronted him, he was screaming and pointing finger at him.
11. The applicant kept approaching him and threw a fist at him. The applicant
grabbed him by the leg and he fell to the floor. As the applicant was on top him, the applicant’s supervisor Ms Ratshoene and the principal came running and pulled the applicant off him in that the applicant was on his back on the floor. An assault is a serious offence and dismissible especially when a subordinate assaulting his senior.
12. During cross-examination, he confirmed that the applicant submitted incomplete work and failed to comply with monitoring instrument which he had signed on R48. It was the first time that the applicant stated that learners were influenced by the principal not to submit tasks. In the meeting he had with the applicant and principal, the applicant said the reason was that there was no corporal punishment.
13. He said that issue of preparatory tests emanates from the Forum that the applicant attended. They were advised that because the learners performed poorly, they must be given preparatory tests to prepare them for exams. He denied that preparatory tests would amount to fraud or leaking of exam paper as contended by the applicant. It would enable a revision on areas where the learners were lacking.
14. Tests and exams are formal assessments and the applicant failed to prepare the learners to be able to respond to a formal assessment. When the applicant put a version to the witness that meeting parent was not the core duty of educators, the witness responded that, that function was contained in the applicant’s job description on items 3.5.3 on pages R14-15.
15. The applicant refused to speak to parents claiming that he only speaks English and therefore he did not meet the parents. The applicant told him that it was a waste of time for him to address the parents because they did not understand English.
16. The applicant waited for him outside the principal’s office screaming and
punched him with a fist. When the applicant grabbed him, he fell on the floor. The principal and Ms Ratshoene pulled the applicant off him. The applicant assaulted him as the applicant mentioned to him that he was angry and protested at him referring to a discussion held during the meeting.
17. He denied that the principal pushed the applicant out of the admin block. He denied that Ms Masopi is the one who made him fall when she pulled him off the applicant. The applicant punched him and this caused him to fall. He denied that Ms Masopi was at the scene.
18. Modisaotsile Joseph Letsaba testified that he is the Provincial Coordinator: Social Sciences NW. He facilitated the PSF on 15 April 2019. It was specifically for support and development of grade 4-6 social science educators aiming at improving their performance. The applicant displayed unbecoming behaviour in the workshop as he spent most part of the 1st session sleeping. This caused disturbance and frustration as he had to pause more than 3 times to wake him up. The applicant was moving up and down as he frequented going out. The applicant was required to participate because his class performed poorly.
19. During cross-examination he confirmed that the applicant was sleeping most part of the time, doing up and down movement. He was not participating in his group. It was the first time to hear that the reason he was not participating in his group was because his group was discussing in Setswana. He denied that the applicant informed him that he was unwell.
20. After the break, the applicant did not return. He paused and enquired about his whereabouts from others. He continued with the workshop and later he looked for him outside. He found him standing outside without seeking his permission. The applicant did not tell him that he had problems. He asked the applicant to join others.
21. Alinah Ratshoene testified that she is the departmental Head and was the applicant’s supervisor. She attended the PSF with the applicant. The applicant was moving up and down. At one point he was sleeping and looking disinterested and not participating. .Letsapa asked him if there was anything wrong with him (the applicant) as he was disrupting the class. Letsapa spoke to the applicant, but he continued to move up and down.
22. The applicant failed to submit lesson plans. Most of the time he would submit record sheet with blank spaces.as in R35 which has so many blank spaces. He was behind with the curriculum. He was using the previous lesson plans without communicating with her.
23. During cross examination she confirmed that she was able to see the applicant’s behaviour in the PSF. He was sleeping. She did not see the applicant writing anything. The applicant submitted lesson plans late or not at all. The learners’ assessment had empty spaces. There were no marks. He failed to take scripts from the learners. The applicant asked for her intervention but the record sheet came back with empty spaces.
24. Kelebogile Jacobeth Botipe testified that she is the educator. She represent the management in the Fundraising Committee. It is a policy in item 3.3 and 3.4 of R14, that educators must collect money from learners every Friday and submit, Educators contributes R10 and learners R1. They are informed about fundraising during morning briefing and every Friday morning. They also remind the educators in staff meetings. The applicant failed to collect the money on 15 February 2019.
25. During cross-examination she said the money is used to subsidised other
activities at school. She said the applicant was reminded but did not take
it seriously.
26. Boipelo Lillian Dijoe testified that she is the Departmental Head for Maths and Science: intermediate and senior phase. She was the applicant’s supervisor in both phases. She was teaching next to the applicant’s class. His class was always noisy and disruptive. She would go check and found the applicant there not doing anything about the situation.
27. Sometimes he would be outside the class. She never heard him speaking to the learners. He would say they know what to do. They were distracting other classes. She tried several times to engage Ms Ratshoene to assist and intervene. As a result, his learners were underperforming.
28. The applicant waited for Mr Modiroa to come out of the principal’s office. He approached Mr Modiroa shouting and saying “ you have insulted me now I am going to beat you”. He beat Mr Modiroa with a fist on the face and grabbed him by the leg. Mr Modiroa fell. He went on top of Modiroa on the floor. They went ran to rescue Mr Modiroa.
29. The principal pulled him from Mr Modiroa and took him out of the building.
He kept on shouting that he was going to kill Mr Modiroa. She did not see
Mr Modiroa beating the applicant.
30. During cross-examination when a version was put to her that there was a third force behind learners running on the tables she said there was no influence. Further that it was his teaching time and his responsibility to maintain order and educate the children. The learners would run around in the class in his presence.
31. When the applicant shouted at Mr Modiroa she immediately went out from her office. It was at the passage less than a meter from her office. He left from the waiting area and went to the passage confronting Mr Modiroa. She was with Ms Ratshoene and went out immediately upon hearing the screaming.
32. She was there and saw everything. He beat Mr Modiroa with a fist and grabbed him by the leg for him to fall down. Mr Mokoma took him off Mr Modiroa. Ratshoene helped Modiroa to stand up. She helped pick up Mr Modiroas’s scattered books. Mr Mokoma held the applicant’s hand out of the admin block and pleaded with him to go. Mr Mokoma did not push the applicant.
33. Rateo Orapeleng Naphtaniel Mokoma testified that he is principal of the school. He took the monitoring tool, R40 and the applicant’s file around April 2019. At the time he had only two preparation lessons. There were no lesson plans for February to April. At the time, term1 assessment was already issued. An educator is expected to have preparation lesson before going to the classroom. Item 3.1.3 outlines all that is required from an educator. He had signed it.
34. He set the applicant down and discussed with him and came out with R46 last bullet. R47 are the recommendations. R48 is what he should do. The applicant failed to comply with the recommendations despite his intervention and efforts to support him.
35. The applicant did not complete assessment as there were blank spaces, learners with no marks. He did not complete the job. This affected the school because there would be no database to submit to the department.
36. He received complaints from DH that the applicant was using previous questioning papers raw as they were. In the 10 subjects that he was offering, leaners were performing poorly without improvement every term. His classroom was disorderly. The noise in the applicant’s classroom would attract him from the office.
37. He would find the learners running around. The applicant used to tell him that learners were not taking his instructions. However, when he (principal) got the classroom learners immediately took their seats. The learners were not kept busy, and he did not have control over them. He would sit in the class and do nothing despite his R13 responsibilities.
38. He received complaints of the applicant’s behaviour in the PSF workshop. When he discussed it with him, he said he did not have health issues. He was not surprised because that was how he behaved during staff meetings. The applicant failed to discuss performance of learners during parents meeting. It cannot be true that language was a problem because in his cv he has N.Sotho as African language and had submitted Setswana certificates. Therefore, language should not have been a problem.
39. Ms Dijoe and Ms Ratshoene were present in the meeting held with applicant and Mr Modiroa . At the end of the meeting the applicant was excused, followed by Ms Dijoe and Ms Ratshoene. Mr Modiroa also left. He heard the applicant’s noise along the end of the passage, shouting that you have insulted me. As he went out, he found the applicant on top of Mr Modiroa on the floor.
40. He rushed to remove the applicant off Mr Modiroa. Ms Ratshoene and Ms Dijoe also came. He asked the applicant to go home. He did not listen but followed them as he was escourting Mr Modiroa to his car. He was with his 5year old son, pointing a finger at Mr Modiroa. He was telling his son that “you see this man is insulting me”. Mr Modiroa went back to the office to record the incident in the book. The applicant followed them again, but remained outside his office still with his son.
41. As he was escorting Mr Modiroa back to the car, he saw Ms Masopi walking from the mobile classes towards the admin block. She stood there outside. He does not know if Ms Ratshoene and Ms Dijoe witnessed the incident but everybody came running. Their offices were closer to the scene than his.
42. During cross-examination he testified that he did not see Ms Ratshoene speaking to the applicant. When he came out of the office, the applicant was on top of Mr Modiroa on the floor. Ms Mosopi was teaching at the mobile classes. She was not at the scene and did not witness anything. He denied that he told Masopi that he did not witness the incident. He denied that he pushed the applicant.
43. He said that the applicant was not prepared for classes because he failed to submit lesson plans weekly or fortnightly in terms of his job description. The applicant did not have lesson plans by April. They were not even on soft copy. He denied that he discouraged learners to submit their activities. He could not do as he was the one accountable to the parents and department.
44. It is pure lies that he instructed the learners to run on the tables. He was response to keep order at the school as the principal. He would be abnormal to do give learners such instruction. It was wrong to use previous papers raw as they were. They are used to develop what the educator has taught the learners. The applicant did not set the question paper but used the previous one raw.
45. The applicant failed to attend to the parents. He never uttered a single word in Tswana for the years he was at school. He failed to explain to parents about challenges faced by their children. He was aware of the support the DH provided him with all the time. He denied that he was malicious and wanted to get rid of the applicant. The applicant was required to do fundraising in terms of item 3.3.4 of R14.
46. The applicant, Mr Sello Patrick Teffo testified that he held a meeting with principal and Mr Modiroa at the principal’s office. Mr Modiroa wanted to find out why his performance was poor. At the end of the meeting, he left and returned but waited for Mr Modiroa at the reception. He saw Ms Mosopi coming from the toilet when Modiroa was walking towards him.
47. He went very close to Modiroa. He screamed at Modiroa asking him why he intimated him in the meeting. Modiroa punched him. Mosopi came from the toilet and pulled Modiroa from him. At that point Modiroa fell to the floor. She told Modiroa to control his emotions.
48. He saw Ms Ratshoene and Mr Mokoma coming to them. Mr Mokoma pushed him (applicant) all the way out of the admin clerk. Mr Mokoma followed Modiroa to his car. As he followed them, Mr Mokoma dragged Modiroa back to his office to report the incident in the book. They went back to the admin block.
49. He always submitted class lessons plans, but Department Head would take a week or 2 weeks to moderate. Sometimes the printer would not be working, causing the delay. They used to edit lesson plans. The only time he was late to evaluate the learners was when he was away, in meetings, exams but would still catch up with the activities.
50. He sought intervention from his immediate supervisor to motivate the learners to submit their work. The learners were discouraged by the principal not to submit hence there were blank spaces. He used previous question papers towards exams and gave activities which included 80% from previous exam paper for internal exam and less from activities of the learners’ book.
51. He had some challenges but would keep the learners to order. Some days they would be aggressive. They told him that the principal instructed them to run on the tables. He told them that they should be careful and not hurt themselves if they fall. They asked him what he had done the principal to hate him so much.
52. During the workshop forum he remained seated until 12pm. He recorded all that was being said. After the break, he asked for a further 20 minutes. After the break his group was speaking Tswana and he does not know the language. He was not able to engage fully with the group.
53. He had delegated the duty to collect the money to the class leader as he was reliable. However, that day, the learner did not submit the money. When he asked the leaner why he did not submit he said, he should ask the principal for the reason. He explained to the parents why the learners failed and congratulated those who performed well. There was no directive, circular or anything. It was their initiative.
54. During cross-examination, he testified that he was screaming and confronted Mr Modiroa. He wanted to know why Mr Modiroa was threatening him, he said he would see him in the next forum. Mr Modiroa did not talk back. He went very close to Mr Modiroa but did not touch him. Ms Dijoe and the principal assumed that he assaulted Mr Modiroa. Ms Dijoe had personal issues with him. Hence, they lied about him. Both of them did not see anything. He did not respond when asked why he did not put the version of personal grudge to Ms Dijoe.
55. He denied that the principal`s office was a bit far from that of Ms Ratshoene and Ms Dijoe. He admitted that he had a motive to confront Modiroa but that it was verbal not physical.
56. There was no policy stipulating that they should not edit and repeat lesson plans but it was a practice. He had been teaching for 10 years. Even if he prepared lesson plans afresh and not edit, they would still look the same. He sought intervention from Ms Ratshoene who encouraged learners to submit.
57. Learners refused to submit because they were influenced by the principal but some submitted. This is because the principal wanted to kick him out from the school for his selfish reasons. The principal is selfish and irresponsible to sacrifice a teacher at the expense of the leaners. The principal instructed the leaners to run on the tables and he heard him instructing them so.
58. He used previous papers for internal exams papers. His class was not manageable but once he gave them work to do, they would do the work. He denied that he was disruptive in the Forum. He was participating and co-operative. He took notes during the workshop and later wrote a report.
59. After 12pm break, he was restless and decided to stay outside. When he went back, he started going out frequently because he wanted to relieve himself. He informed the facilitator and requested more time. He denied that he was sleeping in the workshop. His group was discussing in Tswana not English. He did not understand.
60. Preparatory test was optional as it fell under informal activities. He prepared leaners by using informal activities. There is no policy that it should be a test. There was nothing wrong in delegating the task given to him to the learners for collection of money. He wanted to prepare them to be responsible adult in the future. The administration of the school did not suffer prejudice when the money was not submitted.
61. He met the parents. Some parents were enlightened and others illiterate. He met those who performed badly (failed). He congratulated those who did well. He communicated with the parents in English. The issue of language is his constitutional right. He was going to the classroom when he heard the principal saying to his Grade 4 Learner’ run on the tables ``. The principal said to him `` did you hear that, do something about it”.
62. Pontso Elizabeth Masopi testified that she is currently the deputy principal. On 12 September 2019 she was not aware that Mr Modiroa was at the school. She was coming from the mobile classes where she was teaching at the time. She saw the applicant sitting on the walkway with his young son. She was on her way to clock out at the admin clock as it was already after school.
63. She asked bystanders, what was happening. She did not hear noise from the admin block when the incident took place because her mobile class was far from the admin block. She did not see the incident as she was not there. She denied that she told the applicant that the principal told her that Ms Ratshoene, Ms Dijoe and himself did not see the altercation.
64. The only time she became aware that Mr Modiroa was at the school was when she saw him at his car with the principal. The bystanders told her that the applicant was fighting Mr Modiroa. Ms Ratshoene and Ms Dijoe were also standing outside. She denied that she was inside the admin block at the passage when the incident happened. She was not at the scene of the incident. At the time he was not yet a deputy principal. During cross examination she confirmed that she did not see the incident and that she was not in the admin block.
CLOSING ARGUMENTS
65. The respondent’s representative argued that they have proven on the balance of probabilities that the applicant had committed all the offences. The lesson plans should be in his file as evidence when monitoring is done by the DH but were not there. There in evidence that the applicant had report any challenges to the management. He failed to prepare lesson plans and file for monitoring.
66. The applicant failed to prove that he evaluated learners and the sabotage.
The principal testified that using raw previous papers amounts to spoon feeding learners. The applicant did not dispute the existence of the said instruction but stated that he defied it because the exam was internal. The applicant could not prove that the principal had encouraged learners to jump on tables. The principal refuted this allegation and stated that as the head of the school it would be irresponsible of him to instruct such.
67. It was proven that the Applicant had no interest in the PSF while the respondent had allocated time and money to develop and support him. Therefore, he had broken down trust relationship with the respondent.
68. The Applicant failed to administer preparatory test for Grade 7 learners as advised by the Subject Specialist. The Principal testified that this led to learners performing poorly in examinations. He did not dispute this evidence. He was defiance of the instructions and advises from his employer. He went on even to state that preparatory tests are illegal and are just opinions of some people. This is a display of arrogance.
69. The Applicant conceded that he did not collect the money but delegated a reliable learner to collect and submit to him. The school has tasked educators to conduct fundraising for a reason. Delegation of the tasks to learners without any monitoring is not acceptable. Therefore, he had failed in his duties as expected.
70. The Applicant stated that he just congratulated those who performed well
and explained the subject he teaches. The principal testified that this was not the purpose. He is exposed when he states that parents do not understand school issues. Other teachers were able to execute this duty without difficulty with parents. He was not willing to engage with parents.
71. The Principal, Ms Dijoe and Ms Ratshoene testified that the Applicant assaulted Mr Modiroa. His actions were premeditated as he continued to question the presence of Mr Modiroa. Assault is unacceptable and unprofessional and should not be tolerated. The offence is serious and
warrants punishment. He broke the rule persistently and is not remorseful. The respondent prays for the dismissal of the dispute.
72. The applicant argued that he did not touch Mr Modiroa. Mr Modiroa hit him when he got too close to him while confronting him verbally about the his threates in the meeting. Ms Dijoe testified that she saw him hitting Mr Modiroa but did not see which hand he allegedly used. Under cross – examination she said she thought it was left hand. This proves that she did not see what transpired in the hall.
73. She also testified that he grabbed Mr Modiroa with his foot, which is impossible to do. Her testimony is hearsay as she did not see anything. She lied that he was screaming `` I will kill you`` repeatedly to Mr Modiroa. He was never on top of Mr Modirwa as he was always on his feet all the time and never on the floor. The principal testified that he kept saying the words `` don’t intimated me” to Mr Modiroa. Those were the only words that he said``, contrary to what Dijoe said.
74. As for Charge 1 and 3 relating to record sheets, he sought intervention from Ms. Rachoene, which eliminates wrongfulness. Mr Mokoma was encouraging the learners not to submit the formal activities. Mr Mokoma also influenced learners to disobey his instructions and told grade 4 learners to run on top of tables. As for as using previous question papers the purpose was to prepare learner for an external paper.
75. About charge 2, Mr Mokoma confirmed that he compiled a report, which
proves that he was active in workshop. It was only after break at 12h20
that he became restless. He had to clear his throat and told Mr Letsapa
that he needed extra 20 minutes.
76. He prepared the learners for the examination using information activities
that contained some of the questions that would be in the exam paper. Social Science did not have a policy about a test before the exam, only
informal activities. The purpose of the activity was important not the name
of activity.
77. Charge 5, he delegated the duty of money collection to the class leader, who was reliable in collecting and submitting the donations until that day. The learner told him Mr. Mokoma, encouraged her not to submit.
78. Charge 6, he explained to parents, whose children failed than to those who did fail. He was simply targeted by few individuals. The dismissal was unfair. He seeks reinstatement or Compensation of R4.6 million which is equivalent to his salary of 15 years that he would serve the department with 3% annual increase compounded over this period.
ANALYSIS OF EVIDENCE AND ARGUMENT
79. Section 192(2) of the Labour Relations Act 66 of 1995 as amended provides that the respondent bears the onus to prove on a balance of probability that the dismissal was fair. In determining if the respondent had successfully discharged its onus, I consider Item 7 of Schedule 8 of Code of Good Practice. The Item provides us with guidelines in cases of dismissal for misconduct as follows :-
Any person determining whether a dismissal for misconduct is unfair should consider :- ( a) whether or not the employee contravened a rule or standard regulating conduct in, or relevance to, the workplace; and (b) if a rule or standard was contravened, whether or not :- (i) the rule was a valid or reasonable rule or standard; (ii) the employee was aware, or could reasonably be expected to have been aware of the rule or standard; (iii) the rule or standard has been consistently applied by the employer; And (iv) dismissal was an appropriate sanction for the contravention of the rule or standard.
80. The issue in dispute is whether the applicant contravened the rule and if dismissal was an appropriate sanction. I will start with the offence of assault i.e charge 7. Mr Modiroa‘s testimony that the applicant assaulted him with a fist and grabbed him that made him fall to the ground is corroborated by Ms Dijoe. Mr Mokoma corroborate Dijoe and Modiroa‘s version that the applicant was on top of the applicant when he rushed to the scene.
81. The applicant’s contention that it is not probable to grab someone by the leg is misleading. The applicant’s contention is based on semantics. Ms Dijoe although she used “grabbed “she explained that the applicant used his leg to pull Modiroa‘s leg (tripped) that made him fall to the floor.
82. The applicant’s contention that he waited outside to protest against Mr Modiroa and that he was very close and screaming at him which is corroborated by what the witnesses saw proves on the balance of probabilities that he assaulted Mr Modiroa. There was no need to confront Mr Modiroa even verbally because from the applicant’s own version Mr Modiroa did not threaten or intimidate him in the meeting. “ I will see you in the next forum” is not a threat and cannot be construed as such. It was within Mr Modiroa’s competency to utter those words.
83. He was so driven by anger at time that he imagined seeing Ms Masopi at the scene coming from the toilet which was not case. His witness Masopi denied with the strongest possible terms, the applicant’s claims that she was at the scene of crime and that she told the applicant that Mr Mokoma told her that Mr Mokoma, Ms Dijoe and Ms Ratshoene did not see anything.
84. Ms Masopi testified without contradiction that she was nowhere near the scene. She did not see anything. She was in her mobile class outside the admin block. She only saw the applicant sitting with his son on the walkway outside the admin block after the event. At the time Mr Modiroa was standing with Mr Mokoma at his car.
85. She was not aware that Mr Modiroa was at the school. When she enquired from the bystanders she was told that the applicant was fighting Mr Modiroa. I am persuaded by Ms Masopi ‘s version as her absence from the scene is corroborated by Mr Modiroa, Mr Mokoma, Ms Dijoe and Ms Rachoene.
86. It is not in dispute that Masopi’s class was outside the admin block and that the offices of the principal, Ms Rachoene and Ms Dijoe as departmental heads, were in the admin block next to each other. All the witnesses testified without contradiction that they witnessed the assault. It is probable that they witnessed the incident as it happened close to their proximity. All the respondent’ witnesses testified without contradiction that the applicant was on top of Mr Modiroa.
87. It is common cause that the applicant was angered by the discussion in the meeting that he was screaming and shouting pointing a figure at Mr Modiroa. Further that he went very close to Mr Modiroa this verbal altercation alarmed the DHs and principal to come out running. The applicant’s own version is that Mr Modiroa was silent and did not utter a word. This proves that the applicant was the instigator. The anger was not justified for the reason provided above.
88. It is probable that the applicant uttered “ I will kill you” before the principal arrived. Further to that it is unfair to expect them to grab everything that was uttered. Moreover, the applicant was dismissed for more serious offence of physical assault. In any event the applicant’s own version is that he had verbally assaulted Mr Modiroa.
89. There are two probabilities to the applicant’s testimony regarding who was present at the scene, that he is deliberately not telling the truth but fabricating his version or he was so absorbed in the anger that he was in a state that he could not comprehend who was at the scene and not, but imagining things. His defence that he was not on top of Modiroa is not substantiated but a bare denial. He also failed to prove the victim he claims to be. The respondent has proven on the balance of probabilities that through 4 witnesses that he had assaulted Modiroa.
90. I agree with the respondent that assault is a serious and dismissible offence which cannot be tolerated in the workplace. This is aggravated by the fact it is the educator who assaulted his superior at the school premises. The applicant is not remorseful, although remorse would even be difficult to mitigate the gravity of this offence. However, it would show a sign that he could be rehabilitated.
91. The Applicant’s lesson preparation: The Principal and Ms Ratshoene testified that the Applicant failed to do lesson preparations. This was demonstrated on R41 and 42, the Monitoring Instrument for Curriculum Delivery. It is not in dispute that when monitoring is done by the DH, evidence must be in his file. It is further not in dispute that by April 2019, there were only 2 lesson plans and that lesson plans were neither in his hard nor soft file. The reasons provided by the applicant for not complying are embarrassing and expose his lack of interest to discharge his primary duties to the adverse of the learners.
92. Failure to evaluate learners academic progress: The Principal and Ms Ratshoene‘s testimony that the applicant failed to evaluate learners’ academic progress is not disputed. The evidence is the Assessment List, where marks of most learners were not entered on R 22 and 23. The Principal testified that blank spaces on the form negatively affected the school in compiling schedules to be used to complete leaner’s reports. The applicant contends that learners were not submitting tasks hence the blank spaces. He testified that the principal had influenced learners not to submit.
93. The Applicant‘s version that the principal was behind the blank spaces is a speculation that is not proven. I find the version to be improbable and disingenuous, that the principal could sabotage his work at the expense of the learners and his (principal) accountability.
94. It is not in dispute that the alleged sabotage is only surfacing now at arbitration. He did not dispute the principal and Mr Modiroa’s version that the reason for the learners not submitting task was because there was no corporal punishment. The applicant is not a credible witness as his evidence is not consistent. The applicant’s insinuation that corporate was suitable for learners is unfortunate and goes to the heart of his fitness to be an educator.
95. The allegations are so serious that if they were true, a reasonable and responsible educator having the interests of the learners would not hesitate to report or seek intervention of the highest authority. He is bringing this now for his convenience. The applicant had no interests of education of learners and school at heart. He was merely at the school for the sole purpose of receiving monthly salary.
96. Using variety of strategies to meet outcomes of the curriculum: The principal testified that the applicant failed to take an instruction not to use previous question papers as raw but use it as a guideline. The Applicant did not dispute the existence of the instruction but stated that he defied it because the exam was internal and he could use informal mode of preparation.
97. The principal and the DH provided plausible reason why previous examination should not be used raw as it is. The applicant’s reason is not sensible and exposes him further of his disregard to authority and interest of the learners.
98. Establishing classroom environment which stimulates positive learning: The Principal and Ms Dijoe testified that the applicant failed to maintain discipline and order whilst in his class. He conceded that his learners were noisy and used to run on the tables. He attributed this to the Principal.
99. According to him, the principal had encouraged learners to jump on tables and be unruly. He allowed them to do so, but warned them to be careful of not falling. The principal refuted the allegation and stated that as the head of the school, it would be irresponsible of him to give such instruction.
100. He said it would be irresponsible and dangerous of him to allow very young grade 4 learners to jump on tables because that could result is serious injuries. I agree with the respondent’s argument that the applicant was tasked with the safety of the leaners but dismally failed in his duty with shame. I accept the principal‘s explanation to be probable. I find the applicant’s version to be a fallacy and fabrication.
101. As I have mention above no responsible educator would remain silent if Indeed, the principal behaved as alleged. The applicant did not dispute Mr Modiroa‘s evidence that the applicant attributed this to lack of corporal punishment. Modiroa ‘s unchallenged evidence that he was hearing for the first that the principal was the architect.
102. Mr Letsapa, the Subject Advisor and Ms Ratshoene testified that during the PSF meeting for development and support for Grade 4 -6 teachers, the Applicant failed to participate in the professional development programmes to improve his performance, exhibiting a negative attitude towards development forums.
103. Mr Letsapa testified that the applicant kept sleeping during the session and he had to wake him up on three occasions. The applicant was disruptive as he kept on moving in and out of the workshop. He remained persistent with this behaviour despite him advising him to refrain from same. He lacked commitment and co-operation and did not take part in group activity. This was corroborated by Ms Ratshoene and the Principal confirmed that he received a report from Mr Letsapa complaining about the applicant. The report is on R 49 and 50 and is consistent with Mr Letsapa’s evidence.
104. The applicant’s explanation that he spent most of the time outside because he had a problem of answering to nature and that he did not participate in group activity because he could not communicate in Setswana is not probable.
105. He conceded to staying most of the time outside the session, after the break without informing the facilitator of his problems. The principal‘s unchallenged testimony is that the Applicant could not plead language barrier in a group activity because his curriculum vitae academic certificates indicated that he has studied Setswana. Therefore, the issue of language is misplaced.
106. The applicant’s failure to act on Mr Letsapa’s instruction relating to preparatory tests, is there sufficient evidence that he did not participate and was not interested in the Forum? I agree with the respondent that the applicant had no interest in the PSF despite the Respondent having allocated time and money to develop and support him to better his poor performance. This was intended to benefit the learners but the efforts were in vain.
107. Failure to collect fees from learners in his classroom during fundraising activities: It common cause that the funds were not submitted and that the applicant had delegated this duty to collect funds to the class leader. Ms Botipe’s unchallenged testimony is that the funds were supposed to have been collected to subsidise school tours and events. He stated that when he asked the learner about the money, the learner said he should ask the principal.
108. It is not in dispute that the school has tasked educators to conduct fundraising. It was the applicant’s duty and responsibility to have monitored and supervised the learner but failed to do so. There is no evidence that he had indeed delegated the duty to the learner.
109. The version that the learner told him that he should ask the principal is not sensible. If indeed it was the case, and the applicant was serious about his duties and responsibilities, he would have followed up with the principal. The applicant‘s “don’t care” attitude corroborate what I have said before that he was not interested in anything at the school but the salary.
110. The Principal testified that parents are called on open day to come meet class teachers to engage on the performance and conduct of learners. He failed to explain to parents the challenge regarding learners’ conduct and performance. The applicant refused to speak Setswana with parents whom most, could not communicate in English.
111. The applicant conceded that he just congratulated those who performed well and explained the subject he teaches because parents do not understand school issues and he cannot speak Tswana. I have dealt with the language issue above and do not find a just reason why the applicant failed to execute this duty other than that the applicant took the learners, parents and school for granted.
112. I am satisfied that the respondent had proved on the balance of probabilities that the applicant committed the offences that he had been dismissed for.
113. The applicant is not remorseful even during arbitration. In De Beers Consolidated Mines Limited v CCMA &Others [2000] 21 1051 (LAC) the court held that ‘It would in my view be difficult for an employer to re-employ an employee who has shown no remorse. Acknowledgement of wrongdoing is the first step towards rehabilitation. In the absence of a recommitment to the employers’ workplace values, an employee cannot hope to re-establish the trust which he himself has broken…”
114. The applicant’s unrepentant attitude proves that he cannot be rehabilitated. There is no other sanction that can modify his behaviour or deter him from repeating the offence. The respondent successfully proved on the balance of probabilities that dismissal sanction is appropriate and fair for the assault charge.
115. The other offences considered collective constitute a serious and dismissible offence. I am persuaded that the applicant’s misconduct had seriously impaired the relationship of trust with the respondent. The degree of trust required by his position as an educator and his persistent lack of remorse has rendered employment relationship intolerable. He did not only fail the respondent but the learners, dismally.
116. He cannot be entrusted with the care and education of learners he was
employed for. Instead of embracing the meeting he had with Mr Modiroa, the principal and departmental heads by correcting his behaviour and improving his performance for the befit of the learners, he assaults his superior it was all about him.
117. As I have found that his interest is nothing else but the salary. This is demonstrated more clearly when he claims compensation 4.6 million, equivalent to 15years salary with interest. He was not dismissed for submitting Setswana /N Sotho credentials at the time of his employment, despite according to him not knowing the language but this leaves a lot to be desired.
Award
118. The applicant‘s dismissal is fair.
Signed and dated at Pretoria on this the 04 October 2021.
MG Rabyanyana
ELRC Panellist
CASE NO.: ELRC847-20/21NW
In the matter between:-
SELLO PATRICK TEFFO APPLICANT
and
DEPARTMENT OF EDUCATION- NW RESPONDENT
ARBITRATOR: MMAMAHLOLA GLORIA RABYANYANA
HEARD: 02,17,31 August and 02 September 2021
DATE OF AWARD: 04 October 2021
SUMMARY: Section 186 (2) (a) unfair dismissal
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
1. A virtual arbitration was held on 02, 17, 31 August and 02 September 2021.
2. The Applicant presented his case. The respondent was represented by Mr K.K Keetile from its offices. The parties were given until 09 September 2021. The respondent’s arguments were received by the 09 September. The applicant submitted by emailing same to the Senior Manager by mistake. Following my enquiry, I received the applicant’s closing arguments and explanation on 15 September 2021. The applicant’s bundle is marked A and the respondent B. The proceedings were mechanically recorded.
BACKGROUND TO THE ISSUE
3. The Applicant had referred a dispute about unfair dismissal to the Council for conciliation. The dispute could not be resolved and a certificate of outcome of conciliation to that effect was issued. The applicant then requested that the dispute be arbitrated.
ISSUE TO BE DECIDED
4. I am required to decide whether the Applicant’s dismissal was substantively fair i.e if he had committed the offence and if dismissal is an appropriate sanction. If I find in the applicant’s favour, I must determine the appropriate relief. The applicant seeks reinstatement or compensation of R4M.
AGREED FACTS
5. The parties agreed on the following :-
5.1 The applicant was employed by respondent 01 January 2011 at Retlakgona Primary School. He was dismissed on 02 March 2021 for 7 counts of misconduct as per the charge sheet :-
5.1.1 Failing to do lesson preparations, evaluate learners’ academic progress, use variety of strategies to meet outcome of the curriculum, establish classroom environment which stimulate positive learning and utilize the learners `s experience as a fundamental and valuable resources ;
5.1.2 Failing to participate in the Professional Support Forum (PSF) on 15 April 2019 ;
5.1.3 Failing to provide complete records of learner’s progress that provide insight into individual learner’s progress during term 1 of 2019 ;
5.1.4 Failing to administer preparatory test for the Grade 7 Learners during term 2 of 2019, as advised by the Subject Specialist resulting in learners performing poorly.
5.1.5 Failing to perform administrative duties on 15 February 2019, when he did not collect fees from the learners in his classroom during fund raising activities.
5.1.6 Failing to meet parents on 12 July 2019 while on duty to discuss conduct and progress of their learners during collection of progress reports
5.1.7 Assaulting Mr Modiroa on 12 September 2019, while on duty at Retlakgona Primary School.
5.2 The applicant was aware of the rules save for charge 7. Consistent application of the rule and procedural fairness are not in dispute.
SURVEY OF EVIDENCE
6. Mr William Modisawatsona Modiroa testified that he is the Assistant Director: Labour Relations. On 12 September 2019 he went to Retlakgona Primary School to meet with the applicant, the principal and Departmental Heads (Ms Dijoe and Ms Ratshoene). The purpose of the meeting was to investigate the applicant’s poor performance at the school and his behaviour at Programme Support Forum (PSF).
7. The applicant informed him that the reason he was frequently moving in and out during the PSF session was because he was drinking water and wanted to relieve himself. About his poor performance, the applicant informed him that the parents do not understand him because he only speaks English.
8. The reason his mark sheets were not complete was because learners were not submitting tasks. He was not collecting donation monies. According to the applicant’ school base assessment tool used by his Supervisor, he was not complying with annual teaching program.
9. According to the principal the applicant was not giving learners tasks which resulted in their poor performance. He said a duty of an educator is to teach more than sitting in the class and ensure that learners are assessed on what they were taught. Education must be in proper manner by creating a conducive environment for learners. There will be no proper teaching if the class is noisy with no order. The learners’ rights to learning would be infringed.
10. When the meeting finished, he remained behind with the principal and the
applicant left the office. When he left the principal’s office, he found the
applicant waiting for him outside towards the reception area. The applicant confronted him, he was screaming and pointing finger at him.
11. The applicant kept approaching him and threw a fist at him. The applicant
grabbed him by the leg and he fell to the floor. As the applicant was on top him, the applicant’s supervisor Ms Ratshoene and the principal came running and pulled the applicant off him in that the applicant was on his back on the floor. An assault is a serious offence and dismissible especially when a subordinate assaulting his senior.
12. During cross-examination, he confirmed that the applicant submitted incomplete work and failed to comply with monitoring instrument which he had signed on R48. It was the first time that the applicant stated that learners were influenced by the principal not to submit tasks. In the meeting he had with the applicant and principal, the applicant said the reason was that there was no corporal punishment.
13. He said that issue of preparatory tests emanates from the Forum that the applicant attended. They were advised that because the learners performed poorly, they must be given preparatory tests to prepare them for exams. He denied that preparatory tests would amount to fraud or leaking of exam paper as contended by the applicant. It would enable a revision on areas where the learners were lacking.
14. Tests and exams are formal assessments and the applicant failed to prepare the learners to be able to respond to a formal assessment. When the applicant put a version to the witness that meeting parent was not the core duty of educators, the witness responded that, that function was contained in the applicant’s job description on items 3.5.3 on pages R14-15.
15. The applicant refused to speak to parents claiming that he only speaks English and therefore he did not meet the parents. The applicant told him that it was a waste of time for him to address the parents because they did not understand English.
16. The applicant waited for him outside the principal’s office screaming and
punched him with a fist. When the applicant grabbed him, he fell on the floor. The principal and Ms Ratshoene pulled the applicant off him. The applicant assaulted him as the applicant mentioned to him that he was angry and protested at him referring to a discussion held during the meeting.
17. He denied that the principal pushed the applicant out of the admin block. He denied that Ms Masopi is the one who made him fall when she pulled him off the applicant. The applicant punched him and this caused him to fall. He denied that Ms Masopi was at the scene.
18. Modisaotsile Joseph Letsaba testified that he is the Provincial Coordinator: Social Sciences NW. He facilitated the PSF on 15 April 2019. It was specifically for support and development of grade 4-6 social science educators aiming at improving their performance. The applicant displayed unbecoming behaviour in the workshop as he spent most part of the 1st session sleeping. This caused disturbance and frustration as he had to pause more than 3 times to wake him up. The applicant was moving up and down as he frequented going out. The applicant was required to participate because his class performed poorly.
19. During cross-examination he confirmed that the applicant was sleeping most part of the time, doing up and down movement. He was not participating in his group. It was the first time to hear that the reason he was not participating in his group was because his group was discussing in Setswana. He denied that the applicant informed him that he was unwell.
20. After the break, the applicant did not return. He paused and enquired about his whereabouts from others. He continued with the workshop and later he looked for him outside. He found him standing outside without seeking his permission. The applicant did not tell him that he had problems. He asked the applicant to join others.
21. Alinah Ratshoene testified that she is the departmental Head and was the applicant’s supervisor. She attended the PSF with the applicant. The applicant was moving up and down. At one point he was sleeping and looking disinterested and not participating. .Letsapa asked him if there was anything wrong with him (the applicant) as he was disrupting the class. Letsapa spoke to the applicant, but he continued to move up and down.
22. The applicant failed to submit lesson plans. Most of the time he would submit record sheet with blank spaces.as in R35 which has so many blank spaces. He was behind with the curriculum. He was using the previous lesson plans without communicating with her.
23. During cross examination she confirmed that she was able to see the applicant’s behaviour in the PSF. He was sleeping. She did not see the applicant writing anything. The applicant submitted lesson plans late or not at all. The learners’ assessment had empty spaces. There were no marks. He failed to take scripts from the learners. The applicant asked for her intervention but the record sheet came back with empty spaces.
24. Kelebogile Jacobeth Botipe testified that she is the educator. She represent the management in the Fundraising Committee. It is a policy in item 3.3 and 3.4 of R14, that educators must collect money from learners every Friday and submit, Educators contributes R10 and learners R1. They are informed about fundraising during morning briefing and every Friday morning. They also remind the educators in staff meetings. The applicant failed to collect the money on 15 February 2019.
25. During cross-examination she said the money is used to subsidised other
activities at school. She said the applicant was reminded but did not take
it seriously.
26. Boipelo Lillian Dijoe testified that she is the Departmental Head for Maths and Science: intermediate and senior phase. She was the applicant’s supervisor in both phases. She was teaching next to the applicant’s class. His class was always noisy and disruptive. She would go check and found the applicant there not doing anything about the situation.
27. Sometimes he would be outside the class. She never heard him speaking to the learners. He would say they know what to do. They were distracting other classes. She tried several times to engage Ms Ratshoene to assist and intervene. As a result, his learners were underperforming.
28. The applicant waited for Mr Modiroa to come out of the principal’s office. He approached Mr Modiroa shouting and saying “ you have insulted me now I am going to beat you”. He beat Mr Modiroa with a fist on the face and grabbed him by the leg. Mr Modiroa fell. He went on top of Modiroa on the floor. They went ran to rescue Mr Modiroa.
29. The principal pulled him from Mr Modiroa and took him out of the building.
He kept on shouting that he was going to kill Mr Modiroa. She did not see
Mr Modiroa beating the applicant.
30. During cross-examination when a version was put to her that there was a third force behind learners running on the tables she said there was no influence. Further that it was his teaching time and his responsibility to maintain order and educate the children. The learners would run around in the class in his presence.
31. When the applicant shouted at Mr Modiroa she immediately went out from her office. It was at the passage less than a meter from her office. He left from the waiting area and went to the passage confronting Mr Modiroa. She was with Ms Ratshoene and went out immediately upon hearing the screaming.
32. She was there and saw everything. He beat Mr Modiroa with a fist and grabbed him by the leg for him to fall down. Mr Mokoma took him off Mr Modiroa. Ratshoene helped Modiroa to stand up. She helped pick up Mr Modiroas’s scattered books. Mr Mokoma held the applicant’s hand out of the admin block and pleaded with him to go. Mr Mokoma did not push the applicant.
33. Rateo Orapeleng Naphtaniel Mokoma testified that he is principal of the school. He took the monitoring tool, R40 and the applicant’s file around April 2019. At the time he had only two preparation lessons. There were no lesson plans for February to April. At the time, term1 assessment was already issued. An educator is expected to have preparation lesson before going to the classroom. Item 3.1.3 outlines all that is required from an educator. He had signed it.
34. He set the applicant down and discussed with him and came out with R46 last bullet. R47 are the recommendations. R48 is what he should do. The applicant failed to comply with the recommendations despite his intervention and efforts to support him.
35. The applicant did not complete assessment as there were blank spaces, learners with no marks. He did not complete the job. This affected the school because there would be no database to submit to the department.
36. He received complaints from DH that the applicant was using previous questioning papers raw as they were. In the 10 subjects that he was offering, leaners were performing poorly without improvement every term. His classroom was disorderly. The noise in the applicant’s classroom would attract him from the office.
37. He would find the learners running around. The applicant used to tell him that learners were not taking his instructions. However, when he (principal) got the classroom learners immediately took their seats. The learners were not kept busy, and he did not have control over them. He would sit in the class and do nothing despite his R13 responsibilities.
38. He received complaints of the applicant’s behaviour in the PSF workshop. When he discussed it with him, he said he did not have health issues. He was not surprised because that was how he behaved during staff meetings. The applicant failed to discuss performance of learners during parents meeting. It cannot be true that language was a problem because in his cv he has N.Sotho as African language and had submitted Setswana certificates. Therefore, language should not have been a problem.
39. Ms Dijoe and Ms Ratshoene were present in the meeting held with applicant and Mr Modiroa . At the end of the meeting the applicant was excused, followed by Ms Dijoe and Ms Ratshoene. Mr Modiroa also left. He heard the applicant’s noise along the end of the passage, shouting that you have insulted me. As he went out, he found the applicant on top of Mr Modiroa on the floor.
40. He rushed to remove the applicant off Mr Modiroa. Ms Ratshoene and Ms Dijoe also came. He asked the applicant to go home. He did not listen but followed them as he was escourting Mr Modiroa to his car. He was with his 5year old son, pointing a finger at Mr Modiroa. He was telling his son that “you see this man is insulting me”. Mr Modiroa went back to the office to record the incident in the book. The applicant followed them again, but remained outside his office still with his son.
41. As he was escorting Mr Modiroa back to the car, he saw Ms Masopi walking from the mobile classes towards the admin block. She stood there outside. He does not know if Ms Ratshoene and Ms Dijoe witnessed the incident but everybody came running. Their offices were closer to the scene than his.
42. During cross-examination he testified that he did not see Ms Ratshoene speaking to the applicant. When he came out of the office, the applicant was on top of Mr Modiroa on the floor. Ms Mosopi was teaching at the mobile classes. She was not at the scene and did not witness anything. He denied that he told Masopi that he did not witness the incident. He denied that he pushed the applicant.
43. He said that the applicant was not prepared for classes because he failed to submit lesson plans weekly or fortnightly in terms of his job description. The applicant did not have lesson plans by April. They were not even on soft copy. He denied that he discouraged learners to submit their activities. He could not do as he was the one accountable to the parents and department.
44. It is pure lies that he instructed the learners to run on the tables. He was response to keep order at the school as the principal. He would be abnormal to do give learners such instruction. It was wrong to use previous papers raw as they were. They are used to develop what the educator has taught the learners. The applicant did not set the question paper but used the previous one raw.
45. The applicant failed to attend to the parents. He never uttered a single word in Tswana for the years he was at school. He failed to explain to parents about challenges faced by their children. He was aware of the support the DH provided him with all the time. He denied that he was malicious and wanted to get rid of the applicant. The applicant was required to do fundraising in terms of item 3.3.4 of R14.
46. The applicant, Mr Sello Patrick Teffo testified that he held a meeting with principal and Mr Modiroa at the principal’s office. Mr Modiroa wanted to find out why his performance was poor. At the end of the meeting, he left and returned but waited for Mr Modiroa at the reception. He saw Ms Mosopi coming from the toilet when Modiroa was walking towards him.
47. He went very close to Modiroa. He screamed at Modiroa asking him why he intimated him in the meeting. Modiroa punched him. Mosopi came from the toilet and pulled Modiroa from him. At that point Modiroa fell to the floor. She told Modiroa to control his emotions.
48. He saw Ms Ratshoene and Mr Mokoma coming to them. Mr Mokoma pushed him (applicant) all the way out of the admin clerk. Mr Mokoma followed Modiroa to his car. As he followed them, Mr Mokoma dragged Modiroa back to his office to report the incident in the book. They went back to the admin block.
49. He always submitted class lessons plans, but Department Head would take a week or 2 weeks to moderate. Sometimes the printer would not be working, causing the delay. They used to edit lesson plans. The only time he was late to evaluate the learners was when he was away, in meetings, exams but would still catch up with the activities.
50. He sought intervention from his immediate supervisor to motivate the learners to submit their work. The learners were discouraged by the principal not to submit hence there were blank spaces. He used previous question papers towards exams and gave activities which included 80% from previous exam paper for internal exam and less from activities of the learners’ book.
51. He had some challenges but would keep the learners to order. Some days they would be aggressive. They told him that the principal instructed them to run on the tables. He told them that they should be careful and not hurt themselves if they fall. They asked him what he had done the principal to hate him so much.
52. During the workshop forum he remained seated until 12pm. He recorded all that was being said. After the break, he asked for a further 20 minutes. After the break his group was speaking Tswana and he does not know the language. He was not able to engage fully with the group.
53. He had delegated the duty to collect the money to the class leader as he was reliable. However, that day, the learner did not submit the money. When he asked the leaner why he did not submit he said, he should ask the principal for the reason. He explained to the parents why the learners failed and congratulated those who performed well. There was no directive, circular or anything. It was their initiative.
54. During cross-examination, he testified that he was screaming and confronted Mr Modiroa. He wanted to know why Mr Modiroa was threatening him, he said he would see him in the next forum. Mr Modiroa did not talk back. He went very close to Mr Modiroa but did not touch him. Ms Dijoe and the principal assumed that he assaulted Mr Modiroa. Ms Dijoe had personal issues with him. Hence, they lied about him. Both of them did not see anything. He did not respond when asked why he did not put the version of personal grudge to Ms Dijoe.
55. He denied that the principal`s office was a bit far from that of Ms Ratshoene and Ms Dijoe. He admitted that he had a motive to confront Modiroa but that it was verbal not physical.
56. There was no policy stipulating that they should not edit and repeat lesson plans but it was a practice. He had been teaching for 10 years. Even if he prepared lesson plans afresh and not edit, they would still look the same. He sought intervention from Ms Ratshoene who encouraged learners to submit.
57. Learners refused to submit because they were influenced by the principal but some submitted. This is because the principal wanted to kick him out from the school for his selfish reasons. The principal is selfish and irresponsible to sacrifice a teacher at the expense of the leaners. The principal instructed the leaners to run on the tables and he heard him instructing them so.
58. He used previous papers for internal exams papers. His class was not manageable but once he gave them work to do, they would do the work. He denied that he was disruptive in the Forum. He was participating and co-operative. He took notes during the workshop and later wrote a report.
59. After 12pm break, he was restless and decided to stay outside. When he went back, he started going out frequently because he wanted to relieve himself. He informed the facilitator and requested more time. He denied that he was sleeping in the workshop. His group was discussing in Tswana not English. He did not understand.
60. Preparatory test was optional as it fell under informal activities. He prepared leaners by using informal activities. There is no policy that it should be a test. There was nothing wrong in delegating the task given to him to the learners for collection of money. He wanted to prepare them to be responsible adult in the future. The administration of the school did not suffer prejudice when the money was not submitted.
61. He met the parents. Some parents were enlightened and others illiterate. He met those who performed badly (failed). He congratulated those who did well. He communicated with the parents in English. The issue of language is his constitutional right. He was going to the classroom when he heard the principal saying to his Grade 4 Learner’ run on the tables ``. The principal said to him `` did you hear that, do something about it”.
62. Pontso Elizabeth Masopi testified that she is currently the deputy principal. On 12 September 2019 she was not aware that Mr Modiroa was at the school. She was coming from the mobile classes where she was teaching at the time. She saw the applicant sitting on the walkway with his young son. She was on her way to clock out at the admin clock as it was already after school.
63. She asked bystanders, what was happening. She did not hear noise from the admin block when the incident took place because her mobile class was far from the admin block. She did not see the incident as she was not there. She denied that she told the applicant that the principal told her that Ms Ratshoene, Ms Dijoe and himself did not see the altercation.
64. The only time she became aware that Mr Modiroa was at the school was when she saw him at his car with the principal. The bystanders told her that the applicant was fighting Mr Modiroa. Ms Ratshoene and Ms Dijoe were also standing outside. She denied that she was inside the admin block at the passage when the incident happened. She was not at the scene of the incident. At the time he was not yet a deputy principal. During cross examination she confirmed that she did not see the incident and that she was not in the admin block.
CLOSING ARGUMENTS
65. The respondent’s representative argued that they have proven on the balance of probabilities that the applicant had committed all the offences. The lesson plans should be in his file as evidence when monitoring is done by the DH but were not there. There in evidence that the applicant had report any challenges to the management. He failed to prepare lesson plans and file for monitoring.
66. The applicant failed to prove that he evaluated learners and the sabotage.
The principal testified that using raw previous papers amounts to spoon feeding learners. The applicant did not dispute the existence of the said instruction but stated that he defied it because the exam was internal. The applicant could not prove that the principal had encouraged learners to jump on tables. The principal refuted this allegation and stated that as the head of the school it would be irresponsible of him to instruct such.
67. It was proven that the Applicant had no interest in the PSF while the respondent had allocated time and money to develop and support him. Therefore, he had broken down trust relationship with the respondent.
68. The Applicant failed to administer preparatory test for Grade 7 learners as advised by the Subject Specialist. The Principal testified that this led to learners performing poorly in examinations. He did not dispute this evidence. He was defiance of the instructions and advises from his employer. He went on even to state that preparatory tests are illegal and are just opinions of some people. This is a display of arrogance.
69. The Applicant conceded that he did not collect the money but delegated a reliable learner to collect and submit to him. The school has tasked educators to conduct fundraising for a reason. Delegation of the tasks to learners without any monitoring is not acceptable. Therefore, he had failed in his duties as expected.
70. The Applicant stated that he just congratulated those who performed well
and explained the subject he teaches. The principal testified that this was not the purpose. He is exposed when he states that parents do not understand school issues. Other teachers were able to execute this duty without difficulty with parents. He was not willing to engage with parents.
71. The Principal, Ms Dijoe and Ms Ratshoene testified that the Applicant assaulted Mr Modiroa. His actions were premeditated as he continued to question the presence of Mr Modiroa. Assault is unacceptable and unprofessional and should not be tolerated. The offence is serious and
warrants punishment. He broke the rule persistently and is not remorseful. The respondent prays for the dismissal of the dispute.
72. The applicant argued that he did not touch Mr Modiroa. Mr Modiroa hit him when he got too close to him while confronting him verbally about the his threates in the meeting. Ms Dijoe testified that she saw him hitting Mr Modiroa but did not see which hand he allegedly used. Under cross – examination she said she thought it was left hand. This proves that she did not see what transpired in the hall.
73. She also testified that he grabbed Mr Modiroa with his foot, which is impossible to do. Her testimony is hearsay as she did not see anything. She lied that he was screaming `` I will kill you`` repeatedly to Mr Modiroa. He was never on top of Mr Modirwa as he was always on his feet all the time and never on the floor. The principal testified that he kept saying the words `` don’t intimated me” to Mr Modiroa. Those were the only words that he said``, contrary to what Dijoe said.
74. As for Charge 1 and 3 relating to record sheets, he sought intervention from Ms. Rachoene, which eliminates wrongfulness. Mr Mokoma was encouraging the learners not to submit the formal activities. Mr Mokoma also influenced learners to disobey his instructions and told grade 4 learners to run on top of tables. As for as using previous question papers the purpose was to prepare learner for an external paper.
75. About charge 2, Mr Mokoma confirmed that he compiled a report, which
proves that he was active in workshop. It was only after break at 12h20
that he became restless. He had to clear his throat and told Mr Letsapa
that he needed extra 20 minutes.
76. He prepared the learners for the examination using information activities
that contained some of the questions that would be in the exam paper. Social Science did not have a policy about a test before the exam, only
informal activities. The purpose of the activity was important not the name
of activity.
77. Charge 5, he delegated the duty of money collection to the class leader, who was reliable in collecting and submitting the donations until that day. The learner told him Mr. Mokoma, encouraged her not to submit.
78. Charge 6, he explained to parents, whose children failed than to those who did fail. He was simply targeted by few individuals. The dismissal was unfair. He seeks reinstatement or Compensation of R4.6 million which is equivalent to his salary of 15 years that he would serve the department with 3% annual increase compounded over this period.
ANALYSIS OF EVIDENCE AND ARGUMENT
79. Section 192(2) of the Labour Relations Act 66 of 1995 as amended provides that the respondent bears the onus to prove on a balance of probability that the dismissal was fair. In determining if the respondent had successfully discharged its onus, I consider Item 7 of Schedule 8 of Code of Good Practice. The Item provides us with guidelines in cases of dismissal for misconduct as follows :-
Any person determining whether a dismissal for misconduct is unfair should consider :- ( a) whether or not the employee contravened a rule or standard regulating conduct in, or relevance to, the workplace; and (b) if a rule or standard was contravened, whether or not :- (i) the rule was a valid or reasonable rule or standard; (ii) the employee was aware, or could reasonably be expected to have been aware of the rule or standard; (iii) the rule or standard has been consistently applied by the employer; And (iv) dismissal was an appropriate sanction for the contravention of the rule or standard.
80. The issue in dispute is whether the applicant contravened the rule and if dismissal was an appropriate sanction. I will start with the offence of assault i.e charge 7. Mr Modiroa‘s testimony that the applicant assaulted him with a fist and grabbed him that made him fall to the ground is corroborated by Ms Dijoe. Mr Mokoma corroborate Dijoe and Modiroa‘s version that the applicant was on top of the applicant when he rushed to the scene.
81. The applicant’s contention that it is not probable to grab someone by the leg is misleading. The applicant’s contention is based on semantics. Ms Dijoe although she used “grabbed “she explained that the applicant used his leg to pull Modiroa‘s leg (tripped) that made him fall to the floor.
82. The applicant’s contention that he waited outside to protest against Mr Modiroa and that he was very close and screaming at him which is corroborated by what the witnesses saw proves on the balance of probabilities that he assaulted Mr Modiroa. There was no need to confront Mr Modiroa even verbally because from the applicant’s own version Mr Modiroa did not threaten or intimidate him in the meeting. “ I will see you in the next forum” is not a threat and cannot be construed as such. It was within Mr Modiroa’s competency to utter those words.
83. He was so driven by anger at time that he imagined seeing Ms Masopi at the scene coming from the toilet which was not case. His witness Masopi denied with the strongest possible terms, the applicant’s claims that she was at the scene of crime and that she told the applicant that Mr Mokoma told her that Mr Mokoma, Ms Dijoe and Ms Ratshoene did not see anything.
84. Ms Masopi testified without contradiction that she was nowhere near the scene. She did not see anything. She was in her mobile class outside the admin block. She only saw the applicant sitting with his son on the walkway outside the admin block after the event. At the time Mr Modiroa was standing with Mr Mokoma at his car.
85. She was not aware that Mr Modiroa was at the school. When she enquired from the bystanders she was told that the applicant was fighting Mr Modiroa. I am persuaded by Ms Masopi ‘s version as her absence from the scene is corroborated by Mr Modiroa, Mr Mokoma, Ms Dijoe and Ms Rachoene.
86. It is not in dispute that Masopi’s class was outside the admin block and that the offices of the principal, Ms Rachoene and Ms Dijoe as departmental heads, were in the admin block next to each other. All the witnesses testified without contradiction that they witnessed the assault. It is probable that they witnessed the incident as it happened close to their proximity. All the respondent’ witnesses testified without contradiction that the applicant was on top of Mr Modiroa.
87. It is common cause that the applicant was angered by the discussion in the meeting that he was screaming and shouting pointing a figure at Mr Modiroa. Further that he went very close to Mr Modiroa this verbal altercation alarmed the DHs and principal to come out running. The applicant’s own version is that Mr Modiroa was silent and did not utter a word. This proves that the applicant was the instigator. The anger was not justified for the reason provided above.
88. It is probable that the applicant uttered “ I will kill you” before the principal arrived. Further to that it is unfair to expect them to grab everything that was uttered. Moreover, the applicant was dismissed for more serious offence of physical assault. In any event the applicant’s own version is that he had verbally assaulted Mr Modiroa.
89. There are two probabilities to the applicant’s testimony regarding who was present at the scene, that he is deliberately not telling the truth but fabricating his version or he was so absorbed in the anger that he was in a state that he could not comprehend who was at the scene and not, but imagining things. His defence that he was not on top of Modiroa is not substantiated but a bare denial. He also failed to prove the victim he claims to be. The respondent has proven on the balance of probabilities that through 4 witnesses that he had assaulted Modiroa.
90. I agree with the respondent that assault is a serious and dismissible offence which cannot be tolerated in the workplace. This is aggravated by the fact it is the educator who assaulted his superior at the school premises. The applicant is not remorseful, although remorse would even be difficult to mitigate the gravity of this offence. However, it would show a sign that he could be rehabilitated.
91. The Applicant’s lesson preparation: The Principal and Ms Ratshoene testified that the Applicant failed to do lesson preparations. This was demonstrated on R41 and 42, the Monitoring Instrument for Curriculum Delivery. It is not in dispute that when monitoring is done by the DH, evidence must be in his file. It is further not in dispute that by April 2019, there were only 2 lesson plans and that lesson plans were neither in his hard nor soft file. The reasons provided by the applicant for not complying are embarrassing and expose his lack of interest to discharge his primary duties to the adverse of the learners.
92. Failure to evaluate learners academic progress: The Principal and Ms Ratshoene‘s testimony that the applicant failed to evaluate learners’ academic progress is not disputed. The evidence is the Assessment List, where marks of most learners were not entered on R 22 and 23. The Principal testified that blank spaces on the form negatively affected the school in compiling schedules to be used to complete leaner’s reports. The applicant contends that learners were not submitting tasks hence the blank spaces. He testified that the principal had influenced learners not to submit.
93. The Applicant‘s version that the principal was behind the blank spaces is a speculation that is not proven. I find the version to be improbable and disingenuous, that the principal could sabotage his work at the expense of the learners and his (principal) accountability.
94. It is not in dispute that the alleged sabotage is only surfacing now at arbitration. He did not dispute the principal and Mr Modiroa’s version that the reason for the learners not submitting task was because there was no corporal punishment. The applicant is not a credible witness as his evidence is not consistent. The applicant’s insinuation that corporate was suitable for learners is unfortunate and goes to the heart of his fitness to be an educator.
95. The allegations are so serious that if they were true, a reasonable and responsible educator having the interests of the learners would not hesitate to report or seek intervention of the highest authority. He is bringing this now for his convenience. The applicant had no interests of education of learners and school at heart. He was merely at the school for the sole purpose of receiving monthly salary.
96. Using variety of strategies to meet outcomes of the curriculum: The principal testified that the applicant failed to take an instruction not to use previous question papers as raw but use it as a guideline. The Applicant did not dispute the existence of the instruction but stated that he defied it because the exam was internal and he could use informal mode of preparation.
97. The principal and the DH provided plausible reason why previous examination should not be used raw as it is. The applicant’s reason is not sensible and exposes him further of his disregard to authority and interest of the learners.
98. Establishing classroom environment which stimulates positive learning: The Principal and Ms Dijoe testified that the applicant failed to maintain discipline and order whilst in his class. He conceded that his learners were noisy and used to run on the tables. He attributed this to the Principal.
99. According to him, the principal had encouraged learners to jump on tables and be unruly. He allowed them to do so, but warned them to be careful of not falling. The principal refuted the allegation and stated that as the head of the school, it would be irresponsible of him to give such instruction.
100. He said it would be irresponsible and dangerous of him to allow very young grade 4 learners to jump on tables because that could result is serious injuries. I agree with the respondent’s argument that the applicant was tasked with the safety of the leaners but dismally failed in his duty with shame. I accept the principal‘s explanation to be probable. I find the applicant’s version to be a fallacy and fabrication.
101. As I have mention above no responsible educator would remain silent if Indeed, the principal behaved as alleged. The applicant did not dispute Mr Modiroa‘s evidence that the applicant attributed this to lack of corporal punishment. Modiroa ‘s unchallenged evidence that he was hearing for the first that the principal was the architect.
102. Mr Letsapa, the Subject Advisor and Ms Ratshoene testified that during the PSF meeting for development and support for Grade 4 -6 teachers, the Applicant failed to participate in the professional development programmes to improve his performance, exhibiting a negative attitude towards development forums.
103. Mr Letsapa testified that the applicant kept sleeping during the session and he had to wake him up on three occasions. The applicant was disruptive as he kept on moving in and out of the workshop. He remained persistent with this behaviour despite him advising him to refrain from same. He lacked commitment and co-operation and did not take part in group activity. This was corroborated by Ms Ratshoene and the Principal confirmed that he received a report from Mr Letsapa complaining about the applicant. The report is on R 49 and 50 and is consistent with Mr Letsapa’s evidence.
104. The applicant’s explanation that he spent most of the time outside because he had a problem of answering to nature and that he did not participate in group activity because he could not communicate in Setswana is not probable.
105. He conceded to staying most of the time outside the session, after the break without informing the facilitator of his problems. The principal‘s unchallenged testimony is that the Applicant could not plead language barrier in a group activity because his curriculum vitae academic certificates indicated that he has studied Setswana. Therefore, the issue of language is misplaced.
106. The applicant’s failure to act on Mr Letsapa’s instruction relating to preparatory tests, is there sufficient evidence that he did not participate and was not interested in the Forum? I agree with the respondent that the applicant had no interest in the PSF despite the Respondent having allocated time and money to develop and support him to better his poor performance. This was intended to benefit the learners but the efforts were in vain.
107. Failure to collect fees from learners in his classroom during fundraising activities: It common cause that the funds were not submitted and that the applicant had delegated this duty to collect funds to the class leader. Ms Botipe’s unchallenged testimony is that the funds were supposed to have been collected to subsidise school tours and events. He stated that when he asked the learner about the money, the learner said he should ask the principal.
108. It is not in dispute that the school has tasked educators to conduct fundraising. It was the applicant’s duty and responsibility to have monitored and supervised the learner but failed to do so. There is no evidence that he had indeed delegated the duty to the learner.
109. The version that the learner told him that he should ask the principal is not sensible. If indeed it was the case, and the applicant was serious about his duties and responsibilities, he would have followed up with the principal. The applicant‘s “don’t care” attitude corroborate what I have said before that he was not interested in anything at the school but the salary.
110. The Principal testified that parents are called on open day to come meet class teachers to engage on the performance and conduct of learners. He failed to explain to parents the challenge regarding learners’ conduct and performance. The applicant refused to speak Setswana with parents whom most, could not communicate in English.
111. The applicant conceded that he just congratulated those who performed well and explained the subject he teaches because parents do not understand school issues and he cannot speak Tswana. I have dealt with the language issue above and do not find a just reason why the applicant failed to execute this duty other than that the applicant took the learners, parents and school for granted.
112. I am satisfied that the respondent had proved on the balance of probabilities that the applicant committed the offences that he had been dismissed for.
113. The applicant is not remorseful even during arbitration. In De Beers Consolidated Mines Limited v CCMA &Others [2000] 21 1051 (LAC) the court held that ‘It would in my view be difficult for an employer to re-employ an employee who has shown no remorse. Acknowledgement of wrongdoing is the first step towards rehabilitation. In the absence of a recommitment to the employers’ workplace values, an employee cannot hope to re-establish the trust which he himself has broken…”
114. The applicant’s unrepentant attitude proves that he cannot be rehabilitated. There is no other sanction that can modify his behaviour or deter him from repeating the offence. The respondent successfully proved on the balance of probabilities that dismissal sanction is appropriate and fair for the assault charge.
115. The other offences considered collective constitute a serious and dismissible offence. I am persuaded that the applicant’s misconduct had seriously impaired the relationship of trust with the respondent. The degree of trust required by his position as an educator and his persistent lack of remorse has rendered employment relationship intolerable. He did not only fail the respondent but the learners, dismally.
116. He cannot be entrusted with the care and education of learners he was
employed for. Instead of embracing the meeting he had with Mr Modiroa, the principal and departmental heads by correcting his behaviour and improving his performance for the befit of the learners, he assaults his superior it was all about him.
117. As I have found that his interest is nothing else but the salary. This is demonstrated more clearly when he claims compensation 4.6 million, equivalent to 15years salary with interest. He was not dismissed for submitting Setswana /N Sotho credentials at the time of his employment, despite according to him not knowing the language but this leaves a lot to be desired.
Award
118. The applicant‘s dismissal is fair.
Signed and dated at Pretoria on this the 04 October 2021.
MG Rabyanyana
ELRC Panellist