ELRC644-20/21 EC
Text
ELRC210-21/22KZN
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Award Date:
22 October 2021
IN THE ELRC ARBITRATION
BETWEEN:
AHJAY NARAINDASS “the Applicant”
and
THE HEAD OF THE
DEPARTMENT OF EDUCATION – KWAZULU-NATAL “the Respondent”
ARBITRATION AWARD
Case Number: ELRC210-21/22KZN
Last date of arbitration: 13 October 2021
Date of award: 22 October 2021
J KIRBY
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration was held on 13 October 2021 at the Durban Teachers’ Centre.
2. The Applicant was represented by a legal practitioner Mr Dorasamy of the firm Ureesh Dorasamy & Associates. The Applicant testified and documentary evidence marked as exhibits B, C and D were submitted on his behalf.
3. The Respondent, the Head of the KwaZulu-Natal Department of Education (the Department,) was represented by its employee, Mr Bejanath. Four witnesses testified on behalf of the Respondent and a bundle of documents, marked exhibit A, was submitted on its behalf.
4. The proceedings were digitally recorded.
TERMS OF REFERENCE AND ISSUES TO BE DECIDED
5. The Applicant referred an alleged unfair dismissal dispute as provided for in section 191(5)(a)(i) of the Labour Relations Act 66 of 1995 (LRA) to the Council.
6. Notwithstanding having referred an alleged unfair dismissal dispute and as will become evident, it was simultaneously submitted on behalf of the Applicant that he had not been dismissed as he had lodged an appeal, albeit late, against the finding of and sanction of dismissal imposed by the presiding officer of his disciplinary hearing as provided for by section 9 of Schedule 2 of the Employment of Educators Act 76 of 1998 (the Act.) Section 8(4) of the said Schedule provides that the sanction may not be implemented during an appeal.
7. In light of the two apparently contradictory claims I am required to determine the true nature of the dispute and to thereafter make an appropriate finding having considered all the evidence.
BACKGROUND
8. At all material times the Applicant was an educator at Avoca Secondary School (the School.) He has taught mathematics at the School for approximately 27years.
9. The sanction of dismissal was imposed after the Applicant had been found guilty by the presiding officer of his disciplinary hearing of four counts of misconduct. The counts are set out at pages 9 and 10 of exhibit A. Evidence at this arbitration was led in respect of thereof the four counts. The count in respect of which no evidence was led involved the alleged misconduct of administering corporal punishment on two learners. The three remaining counts are detailed below:
9.1. In that on or around September 2020 and at or near the School the Applicant assaulted Mr V Pillay, an educator at the School, by pushing him backwards with his body in contravention of section 18(r) of the Act;
9.2. In that on or about September 2020 and at or near the School the Applicant threatened to assault one or more of four educators with an iron rod in contravention of section 18(1)(r) of the Act. (One of the four educators, Sylvia Govender, testified at the disciplinary hearing but has since passed away;)
9.3. In that or about September 2020 and at or near the School you displayed insolent behavior towards one or more educators, security officers, general assistants and learners at the School by uttering vulgar terminology in a raised voice in contravention of section 18(1(r) of the Act.
10. The Applicant was also represented by Mr Dorasamy at his disciplinary hearing.
11. The notice of dismissal (at page 7 of Exhibit A) is dated 8 April 2021 and is signed by the presiding officer.
12. The Applicant lodged an appeal against the findings and sanction. The notice of appeal is at pages 34-39 of exhibit B. It is common cause that the appeal was lodged late and the Applicant applied for the late filing of the said notice to be condoned. The condonation application is at pages 40-57of exhibit B.
13. The late referral has not yet been condoned. The Applicant was notified by the Respondent by way of an email (at page 22 of exhibit B) that his notice of appeal was late and that the Respondent had implemented the sanction of dismissal. He was further advised that he could refer his dispute to the Council.
14. It was submitted on behalf of the Applicant that the lodging of his appeal and condonation application entitled the Applicant to continue receiving his monthly remuneration until he is notified of the result of his appeal.
14.1. The Applicant subsequently referred an alleged unfair dismissal dispute to the Council.
15. The Applicant has been the subject of following disciplinary processes since 2013:
15.1. Following a South Africa Council for Educators (SACE) disciplinary hearing finalised on 21 June 2019 the sanction imposed was the removal of his name from the roll of educators was suspended for a period of five years on condition that he did not reoffend during the period of suspension. In addition, a fine of R25 000 was imposed. The Applicant was found guilty of four counts of unprofessional conduct involving the use of improper language towards learners and fellow educators, threatening to assault a learner and spitting on a educator. The notification of the sanction and related documents are at pages 28-33 of exhibit A;
15.2. In May 2017 he was found guilty of having administered corporal punishment and the sanction of dismissal was imposed. The Applicant appealed the outcome. The appeal has not yet been heard. The relevant records are at pages 34-41 of exhibit A;
15.3. In February 2013 the Applicant was found guilty at a disciplinary hearing of having threatened to assault a fellow female educator and having used abusive language towards her. The presiding officer imposed as sanction of dismissal, however, on appeal the sanction was altered to one of suspension for three months without pay and a final written warning. The relevant records are at pages 42-50 of exhibit A.
16. The Applicant’s monthly remuneration at the date of his alleged dismissal was R28 206 (exhibit D.)
17. The parties agree that I am to have regard to all the documents contained various bundles as if they had been proven during the course of evidence.
SUMMARY OF EVIDENCE AND ARGUMENTS
The Respondent’s case
18. Ajith Jumna (Jumna) is the principal of the School. He has known the Applicant for approximately 15 years.
19. During the trial examinations in September 2020 and educator, V Pillay (Pillay,) had called the Applicant to room 9 as he was required to invigilate an examination. He saw the Applicant enter the room but then heard him “erupt” with abusive language directed towards Pillay. He approached the Applicant and asked him to meet him at his office. Under cross-examination Jumna conceded that the Applicant had initially not been due to invigilate. As certain educators who had been assigned invigilation duties did not arrive at work and as the Applicant had been due to take a class at that time in any event, he was asked to invigilate.
20. At the office the Applicant had initially refused to enter but when he did, Jumna had showed him the timetable that indicated that he had been due to take a class for the period during which he had been asked to invigilate. The Applicant had hit the timetable from Jumna’s hand thereby tearing it. Jumna then asked the Applicant to leave the School premises.
21. After the Applicant had got in his vehicle to leave and after he had started driving, Jumna saw him stop the vehicle, alight from it and retrieve a metal rod from the boot. He then approached Pillay, Jugganath, another educator, and the late Govender threatening them with the metal rod. He was swearing as he approached them. He was shouting a Tamil word “Manraji” at them. While Jumna does not know the exact meaning of this word he understands it to be a derogatory term. He was threatening to assault them and accused them of controlling promotions at the School. He again asked the Applicant to leave and he did.
22. A short video recording saved on a cellphone phone was shown. With the consent of the Applicant the video recording was provisional admitted as evidence. The video recording is 16 seconds long and shows the Applicant shouting and pointing at people and then walking towards his vehicle with a metal rod in his hand. The video was taken by J R Naidoo and shows the latter part of the events after Jumna had for the second time asked the Applicant to leave. It does not show the Applicant threatening the victims with the metal rod. The Applicant has not apologized for the incident.
23. Jumna had previously enjoyed a good relationship with the Applicant. He has, however, on occasion “lost it” and on this occasion Jumna found himself involved in the Applicant’s outburst. He is aware that the Applicant maintains that other educators have ganged up against him and that he harbours the belief that another educator has been identified to assume the position of Head of Department for Mathematics. No formal grievance in this regard has been laid by the Applicant.
24. Jumna did not see the Applicant actually assault anyone on the day in question and he is not aware of any criminal case of assault having been opened.
25. Pranesh Jugganath (Jugganath) has been employed at the School for approximately 13 years. He is a deputy principal of the School. On the day in question he had been in the assembly area when the Applicant approached him swearing and shouting that he (Jugganath) had assigned him (the Applicant) to invigilate the examination. The Applicant was with Jumna in the corridor and Jugganath asked him to go to the office as the learners were about to begin their examinations. Jugganath thinks that the Applicant then went to the office accompanied by the principal, Jumna, and the SADTU representative.
26. Later while walking across the car park Jugganath noticed the Applicant speaking to Magwaza Lukothso in a raised voice making various accusations about the School. Learners, educators and others were in the car park at the time. Pillay then approached from the direction of the office. The Applicant used the word “Manraji” towards Pillay. Jugganath understands the term to be a derogatory reference to people who may have their origins in Southern India. At this stage Jugganath was approximately 30 metres from the Applicant. As the Applicant wanted to leave the School premises, others were required to move their vehicles so the Applicant could move his vehicle from where it had been parked and leave. The Applicant got into his vehicle and started to leave.
27. Before leaving, however, the Applicant stopped his vehicle and retrieved a metal rod, that Jugganath thought was a wheel spanner, from the boot. At this stage Jugganath was standing with Jumna. The Applicant approached them and raised the rod towards Jugganath saying that he could hurt him. Jugganath lowered his head. The Applicant then moved on towards the Govender and repeated the threats in a similar manner. Others then intervened and the Applicant returned to his vehicle and left.
28. Jugganath had done nothing to provoke the Applicant.
29. Jugganath maintained that he thought that he had enjoyed a good relationship with the Applicant. He does not know what could have provoked the Applicant for him to act in the manner that he did. He had not provoked the Applicant in anyway.
30. With regards to the video recording Jugganath commented that it shows the Applicant being shepherded towards his vehicle after the incident.
31. Under cross-examination Jugganath agreed that the Applicant had not struck anyone although he had come very close to him and the late Govender with the rod raised. Throughout the incident the Applicant was shouting and screaming and Jugganath agreed that this had not been directed at anyone in particular. He had not seen or heard Pillay threaten the Applicant and he disputed the Applicant’s version that he had not threatened the late Govender or himself. Jugganath was not aware of any criminal charges having been laid against the Applicant.
32. Vincent Pillay (Pillay) is a head of department at the School. He knows the Applicant and thought that they had enjoyed a good relationship. On the day in question the Applicant had been asked to invigilate as relief. He went to the room to do so but then Pillay saw him having an altercation with Jugganath. Pillay was approximately 5 metres away when this occurred. Pillay was acting as the examinations’ officer and once all learners were seated, he returned to his office. The late Govender had approached him in his office saying that the Applicant saying that she had been abused by the Applicant in the car park. He had approached the Applicant asking him to calm down. The Applicant had walked towards him calling him a “Manraji,” removed his face mask and blown in his face. The Applicant was so close to him that he had bumped into him. Pillay had put out his hand to restrain the Applicant. Under cross-examination it was put to Pillay that he had throttled the Applicant. This was denied. Sullivan, a deputy principal at the School, had then asked him move away to calm the situation. He had done so.
33. Pillay had later seen the Applicant raise a metal rod that he had retrieved from his vehicle, towards the heads of both Jugganath and the late Govender. The Applicant had not threatened him in a similar manner.
34. On viewing the video Pillay identified the Applicant as being recorded as having said “watch out.” Under cross-examination it was put that this had not been uttered to anyone in particular but Pillay felt that it had been directed towards Jugganath and the late Govender. Similarly Pillay maintained that the Applicant had directed the expression “Manraji” at him. He understood it to be a derogatory Tamil reference to someone of a low caste.
35. It was put to Pillay that the Applicant had only got out of his vehicle and retrieved the iron rod as Pillay had said that he would put the Applicant in an “oblong box” as he was driving out the car park. This was denied.
36. Indran Pillay was the presiding officer at the Applicant’s disciplinary hearing. He was the author of the dismissal notice (at page7 of exhibit A) and the record of proceedings containing his finding and sanction (at pages 8-25 of exhibit A.) He was of the opinion that his findings warranted the summary dismissal of the Applicant.
37. Indran Pillay had also been the presiding officer at the Applicant’s disciplinary hearing in 2013 (at pages 35-50 of exhibit A.) He had not been biased in anyway. He had listened to the evidence and arrived at a decision. In any he did not recall the Applicant having objected to him presiding over his case and if any objection had been raised, it would have been dealt with and recorded in his findings and sanction report.
38. Under cross-examination it was put to him that the Act did not provide for summary dismissal. Indran Pillay submitted that he had acted in terms of the common. He was aware of the appeal lodged by the Applicant but as he was functus officio he had referred it to the Respondent’s representative, Mr Bejenath.
The Applicant’s case
39. The Applicant maintained that the allegations made against were as a result of the witnesses conspiring with one another to have him dismissed as they want to have someone less qualified than him appointed in the mathematics department.
40. He has 28 years of teaching experience. On the day in question he was approached by J L Naidoo, an educator with approximately 5 years of experience, and told that he needed to report for invigilation duty. He was upset as he had not originally been on the roster to do invigilation duties. Educators who were returning from leave due to the risk posed by Covid to them as they suffer from co-morbities, were due to act as invigilators.
41. At the car park he had come across Pillay and he had again expressed his dissatisfaction. He was upset and the principal had told him to leave. Pillay had throttled him before he had got to his vehicle. After he had got in his vehicle and was driving away, Pillay had said to him that he would give him a hiding and put him in an oblong box. He had alighted from his vehicle and taken the metal rod from the boot. As he approached Pillay and while he was still metres away from him, Pillay had run into the office. The late Govender had been between him and Pillay and she must have assumed that he was going to strike her.
42. Under cross-examination the Application acknowledged the finding of and sanction imposed imposed by SACE. He submitted, however, that the evidence had been concocted by other staff members. Sullivan, a deputy principal at the School, had been targeting him for the past 20 years. He had caused learners to falsely implicate him in respect of the alleged misconduct. It was also as a result of having been falsely targeted that led to him charged in 2013. In total he had been subjected to four disciplinary hearings as a result of him being the target of false allegations.
43. On the day in question he got upset as J L Naidoo, who is nobody compared to him, had told to invigilate. When it was put to him that Pillay had testified that he had asked the Applicant to invigilate and that this evidence had not been challenged, his response was that the evidence was all lies. He subsequently conceded that the evidence might have been left unchallenged in error.
SUMMARY OF ARGUMENTS
The Respondent
44. It was submitted on behalf of the Respondent that three witnesses who had testified in respect of the alleged misconduct of the Applicant had given consistent and collaborative that he displayed aggressive conduct towards fellow educators. They had all testified that he had fetched an iron rod from his vehicle and brought it close to the heads of Jugganath and the late Govender.
45. The Applicant had a previously been found guilty by a disciplinary hearing of similar misconduct. He remains a threat to those at school and dismissal is an appropriate sanction.
46. With regards to the Applicant’s assertion that he had not been dismissed as he had applied for condonation of his late submission of his appeal, it was submitted that the EEA did not provide such condonation. As he had lodged his appeal late, he had lost his right to appeal and the finding and sanction of the presiding officer stands.
The Applicant
47. It was submitted that if there was merit in the allegations of the Respondent’s witnesses, they would have lodged criminal complaints, which they have not done. There is thus no merit in their claims.
48. In any event, the evidence of the Respondent’s witnesses had only established that the Applicant had made generalized threats and that these had not been directed at anyone in particular.
49. The presiding officer of his disciplinary hearing had previously dismissed the Applicant and thus he ought not have presided over the hearing. The dismissal was accordingly procedurally unfair.
50. The lodging of the Applicant’s appeal and application for condonation for its late filing, suspended the sanction of dismissal pending the Member of the Executive Committee’s consideration thereof. In support of this submission the Applicant referred to the case of G B Molosiwa and the Department of Education and Sports Development-North West Province & Others JR1735-15.
ANALYSIS OF EVIDENCE AND ARGUMENT
51. The relevant provisions of Schedule 2 to the Act include the following:
51.1. The presiding officer must be appointed by the employer-section 7(2);
51.2. If the presiding officer finds that an educator has committed misconduct, the presiding officer must, on behalf of the employer, impose a sanction, as contemplated in section 18(3) of the Act-section 8(1). The said section includes the sanction of dismissal;
51.3. The employer may not implement the sanction during an appeal by the educator-section 8(4);
51.4. The educator must, within five working days of receiving notice of the final outcome of a disciplinary hearing, submit the appeal form to the Member of the Executive Council-section 9(2).
52. As already indicated the Applicant both referred this alleged unfair dismissal dispute to the Council and simultaneously argued that the abovementioned provisions of the said Schedule meant that he had not been dismissed as he had lodged an appeal against the finding and sanction of the presiding officer. In support hereof he refers to pages 23-57 of exhibit B.
53. The difficulty the Applicant has with his submission that he has not been dismissed as he has lodged an appeal is that he admits that the appeal was not lodged within the prescribed period. He nevertheless further submits that he has applied for the late filing to be condoned and that this cures the late filing of his appeal and causes the sanction of dismissal to be suspended. I do not agree with these submissions. Firstly, unlike the Rules for the Conduct of proceedings in the CCMA, this Council and the various courts for example, no provision is made in Schedule 2 for the late filing of an appeal to be condoned. Secondly, even if condonation were allowed this would not necessarily lead to the automatic suspension of the sanction. When an appeal is late the correct procedure is to refer the dispute to the Council, which is what the Applicant in fact did.
54. In light of the above I find that the Respondent did dismiss the Applicant and an unfair dismissal dispute was correctly referred to the Council.
55. With regards to the procedural fairness of the dismissal it was submitted that the presiding officer ought to have recused himself as he had approximately 7 years previously presided over a disciplinary hearing involving the Applicant and had found him guilty of misconduct. The Applicant had been represented at his most recent disciplinary hearing by his legal practitioner. It is evident from the record of the disciplinary hearing (at pages 8-25 of exhibit A) that he did not apply for the recusal of the presiding officer. If he had a perception that the presiding officer might be biased, he should have brought the application for recusal then. The Applicant has not shown any actual bias by the presiding officer and I am satisfied that the proceedings were fair.
56. With regards to the substantive fairness of the dismissal the Respondent called three witnesses. I do not intend to repeat their evidence here as it was not seriously challenged by the Applicant. The Applicant simultaneously submits that the witnesses conspired amongst themselves to falsely implicate and he admits that on the day in question he was angry, he fetched an iron rod from his vehicle, raised it and approached Jugganath and the late Govender and that he made “generalized” insulting and derogatory comments towards other educators on the School premises.
57. On the Applicant’s own version he conducted himself in “an improper, disgraceful or unacceptable manner” and assaulted or threatened to assault another educator as provided in section 18(q) and (r) of the Act respectively. With regards to the events that transpired on the day in question I accept the evidence of the Respondent’s witnesses that the Applicant became extremely angry when asked to invigilate an examination, insulted educators who crossed his path, raised an iron rod towards the heads of both Jugganath and the late Govender and approached Pillay in an aggressive manner.
58. The Applicant has previously been found guilty by SACE of similar misconduct. I do not know the cause of the Applicant’s anger and aggressive outbursts but I agree with the submission on behalf of the Respondent that he is a threat to others. I accordingly find that the sanction of dismissal is appropriate.
AWARD
59. The application is dismissed.
J Kirby
Arbitrator
BETWEEN:
AHJAY NARAINDASS “the Applicant”
and
THE HEAD OF THE
DEPARTMENT OF EDUCATION – KWAZULU-NATAL “the Respondent”
ARBITRATION AWARD
Case Number: ELRC210-21/22KZN
Last date of arbitration: 13 October 2021
Date of award: 22 October 2021
J KIRBY
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration was held on 13 October 2021 at the Durban Teachers’ Centre.
2. The Applicant was represented by a legal practitioner Mr Dorasamy of the firm Ureesh Dorasamy & Associates. The Applicant testified and documentary evidence marked as exhibits B, C and D were submitted on his behalf.
3. The Respondent, the Head of the KwaZulu-Natal Department of Education (the Department,) was represented by its employee, Mr Bejanath. Four witnesses testified on behalf of the Respondent and a bundle of documents, marked exhibit A, was submitted on its behalf.
4. The proceedings were digitally recorded.
TERMS OF REFERENCE AND ISSUES TO BE DECIDED
5. The Applicant referred an alleged unfair dismissal dispute as provided for in section 191(5)(a)(i) of the Labour Relations Act 66 of 1995 (LRA) to the Council.
6. Notwithstanding having referred an alleged unfair dismissal dispute and as will become evident, it was simultaneously submitted on behalf of the Applicant that he had not been dismissed as he had lodged an appeal, albeit late, against the finding of and sanction of dismissal imposed by the presiding officer of his disciplinary hearing as provided for by section 9 of Schedule 2 of the Employment of Educators Act 76 of 1998 (the Act.) Section 8(4) of the said Schedule provides that the sanction may not be implemented during an appeal.
7. In light of the two apparently contradictory claims I am required to determine the true nature of the dispute and to thereafter make an appropriate finding having considered all the evidence.
BACKGROUND
8. At all material times the Applicant was an educator at Avoca Secondary School (the School.) He has taught mathematics at the School for approximately 27years.
9. The sanction of dismissal was imposed after the Applicant had been found guilty by the presiding officer of his disciplinary hearing of four counts of misconduct. The counts are set out at pages 9 and 10 of exhibit A. Evidence at this arbitration was led in respect of thereof the four counts. The count in respect of which no evidence was led involved the alleged misconduct of administering corporal punishment on two learners. The three remaining counts are detailed below:
9.1. In that on or around September 2020 and at or near the School the Applicant assaulted Mr V Pillay, an educator at the School, by pushing him backwards with his body in contravention of section 18(r) of the Act;
9.2. In that on or about September 2020 and at or near the School the Applicant threatened to assault one or more of four educators with an iron rod in contravention of section 18(1)(r) of the Act. (One of the four educators, Sylvia Govender, testified at the disciplinary hearing but has since passed away;)
9.3. In that or about September 2020 and at or near the School you displayed insolent behavior towards one or more educators, security officers, general assistants and learners at the School by uttering vulgar terminology in a raised voice in contravention of section 18(1(r) of the Act.
10. The Applicant was also represented by Mr Dorasamy at his disciplinary hearing.
11. The notice of dismissal (at page 7 of Exhibit A) is dated 8 April 2021 and is signed by the presiding officer.
12. The Applicant lodged an appeal against the findings and sanction. The notice of appeal is at pages 34-39 of exhibit B. It is common cause that the appeal was lodged late and the Applicant applied for the late filing of the said notice to be condoned. The condonation application is at pages 40-57of exhibit B.
13. The late referral has not yet been condoned. The Applicant was notified by the Respondent by way of an email (at page 22 of exhibit B) that his notice of appeal was late and that the Respondent had implemented the sanction of dismissal. He was further advised that he could refer his dispute to the Council.
14. It was submitted on behalf of the Applicant that the lodging of his appeal and condonation application entitled the Applicant to continue receiving his monthly remuneration until he is notified of the result of his appeal.
14.1. The Applicant subsequently referred an alleged unfair dismissal dispute to the Council.
15. The Applicant has been the subject of following disciplinary processes since 2013:
15.1. Following a South Africa Council for Educators (SACE) disciplinary hearing finalised on 21 June 2019 the sanction imposed was the removal of his name from the roll of educators was suspended for a period of five years on condition that he did not reoffend during the period of suspension. In addition, a fine of R25 000 was imposed. The Applicant was found guilty of four counts of unprofessional conduct involving the use of improper language towards learners and fellow educators, threatening to assault a learner and spitting on a educator. The notification of the sanction and related documents are at pages 28-33 of exhibit A;
15.2. In May 2017 he was found guilty of having administered corporal punishment and the sanction of dismissal was imposed. The Applicant appealed the outcome. The appeal has not yet been heard. The relevant records are at pages 34-41 of exhibit A;
15.3. In February 2013 the Applicant was found guilty at a disciplinary hearing of having threatened to assault a fellow female educator and having used abusive language towards her. The presiding officer imposed as sanction of dismissal, however, on appeal the sanction was altered to one of suspension for three months without pay and a final written warning. The relevant records are at pages 42-50 of exhibit A.
16. The Applicant’s monthly remuneration at the date of his alleged dismissal was R28 206 (exhibit D.)
17. The parties agree that I am to have regard to all the documents contained various bundles as if they had been proven during the course of evidence.
SUMMARY OF EVIDENCE AND ARGUMENTS
The Respondent’s case
18. Ajith Jumna (Jumna) is the principal of the School. He has known the Applicant for approximately 15 years.
19. During the trial examinations in September 2020 and educator, V Pillay (Pillay,) had called the Applicant to room 9 as he was required to invigilate an examination. He saw the Applicant enter the room but then heard him “erupt” with abusive language directed towards Pillay. He approached the Applicant and asked him to meet him at his office. Under cross-examination Jumna conceded that the Applicant had initially not been due to invigilate. As certain educators who had been assigned invigilation duties did not arrive at work and as the Applicant had been due to take a class at that time in any event, he was asked to invigilate.
20. At the office the Applicant had initially refused to enter but when he did, Jumna had showed him the timetable that indicated that he had been due to take a class for the period during which he had been asked to invigilate. The Applicant had hit the timetable from Jumna’s hand thereby tearing it. Jumna then asked the Applicant to leave the School premises.
21. After the Applicant had got in his vehicle to leave and after he had started driving, Jumna saw him stop the vehicle, alight from it and retrieve a metal rod from the boot. He then approached Pillay, Jugganath, another educator, and the late Govender threatening them with the metal rod. He was swearing as he approached them. He was shouting a Tamil word “Manraji” at them. While Jumna does not know the exact meaning of this word he understands it to be a derogatory term. He was threatening to assault them and accused them of controlling promotions at the School. He again asked the Applicant to leave and he did.
22. A short video recording saved on a cellphone phone was shown. With the consent of the Applicant the video recording was provisional admitted as evidence. The video recording is 16 seconds long and shows the Applicant shouting and pointing at people and then walking towards his vehicle with a metal rod in his hand. The video was taken by J R Naidoo and shows the latter part of the events after Jumna had for the second time asked the Applicant to leave. It does not show the Applicant threatening the victims with the metal rod. The Applicant has not apologized for the incident.
23. Jumna had previously enjoyed a good relationship with the Applicant. He has, however, on occasion “lost it” and on this occasion Jumna found himself involved in the Applicant’s outburst. He is aware that the Applicant maintains that other educators have ganged up against him and that he harbours the belief that another educator has been identified to assume the position of Head of Department for Mathematics. No formal grievance in this regard has been laid by the Applicant.
24. Jumna did not see the Applicant actually assault anyone on the day in question and he is not aware of any criminal case of assault having been opened.
25. Pranesh Jugganath (Jugganath) has been employed at the School for approximately 13 years. He is a deputy principal of the School. On the day in question he had been in the assembly area when the Applicant approached him swearing and shouting that he (Jugganath) had assigned him (the Applicant) to invigilate the examination. The Applicant was with Jumna in the corridor and Jugganath asked him to go to the office as the learners were about to begin their examinations. Jugganath thinks that the Applicant then went to the office accompanied by the principal, Jumna, and the SADTU representative.
26. Later while walking across the car park Jugganath noticed the Applicant speaking to Magwaza Lukothso in a raised voice making various accusations about the School. Learners, educators and others were in the car park at the time. Pillay then approached from the direction of the office. The Applicant used the word “Manraji” towards Pillay. Jugganath understands the term to be a derogatory reference to people who may have their origins in Southern India. At this stage Jugganath was approximately 30 metres from the Applicant. As the Applicant wanted to leave the School premises, others were required to move their vehicles so the Applicant could move his vehicle from where it had been parked and leave. The Applicant got into his vehicle and started to leave.
27. Before leaving, however, the Applicant stopped his vehicle and retrieved a metal rod, that Jugganath thought was a wheel spanner, from the boot. At this stage Jugganath was standing with Jumna. The Applicant approached them and raised the rod towards Jugganath saying that he could hurt him. Jugganath lowered his head. The Applicant then moved on towards the Govender and repeated the threats in a similar manner. Others then intervened and the Applicant returned to his vehicle and left.
28. Jugganath had done nothing to provoke the Applicant.
29. Jugganath maintained that he thought that he had enjoyed a good relationship with the Applicant. He does not know what could have provoked the Applicant for him to act in the manner that he did. He had not provoked the Applicant in anyway.
30. With regards to the video recording Jugganath commented that it shows the Applicant being shepherded towards his vehicle after the incident.
31. Under cross-examination Jugganath agreed that the Applicant had not struck anyone although he had come very close to him and the late Govender with the rod raised. Throughout the incident the Applicant was shouting and screaming and Jugganath agreed that this had not been directed at anyone in particular. He had not seen or heard Pillay threaten the Applicant and he disputed the Applicant’s version that he had not threatened the late Govender or himself. Jugganath was not aware of any criminal charges having been laid against the Applicant.
32. Vincent Pillay (Pillay) is a head of department at the School. He knows the Applicant and thought that they had enjoyed a good relationship. On the day in question the Applicant had been asked to invigilate as relief. He went to the room to do so but then Pillay saw him having an altercation with Jugganath. Pillay was approximately 5 metres away when this occurred. Pillay was acting as the examinations’ officer and once all learners were seated, he returned to his office. The late Govender had approached him in his office saying that the Applicant saying that she had been abused by the Applicant in the car park. He had approached the Applicant asking him to calm down. The Applicant had walked towards him calling him a “Manraji,” removed his face mask and blown in his face. The Applicant was so close to him that he had bumped into him. Pillay had put out his hand to restrain the Applicant. Under cross-examination it was put to Pillay that he had throttled the Applicant. This was denied. Sullivan, a deputy principal at the School, had then asked him move away to calm the situation. He had done so.
33. Pillay had later seen the Applicant raise a metal rod that he had retrieved from his vehicle, towards the heads of both Jugganath and the late Govender. The Applicant had not threatened him in a similar manner.
34. On viewing the video Pillay identified the Applicant as being recorded as having said “watch out.” Under cross-examination it was put that this had not been uttered to anyone in particular but Pillay felt that it had been directed towards Jugganath and the late Govender. Similarly Pillay maintained that the Applicant had directed the expression “Manraji” at him. He understood it to be a derogatory Tamil reference to someone of a low caste.
35. It was put to Pillay that the Applicant had only got out of his vehicle and retrieved the iron rod as Pillay had said that he would put the Applicant in an “oblong box” as he was driving out the car park. This was denied.
36. Indran Pillay was the presiding officer at the Applicant’s disciplinary hearing. He was the author of the dismissal notice (at page7 of exhibit A) and the record of proceedings containing his finding and sanction (at pages 8-25 of exhibit A.) He was of the opinion that his findings warranted the summary dismissal of the Applicant.
37. Indran Pillay had also been the presiding officer at the Applicant’s disciplinary hearing in 2013 (at pages 35-50 of exhibit A.) He had not been biased in anyway. He had listened to the evidence and arrived at a decision. In any he did not recall the Applicant having objected to him presiding over his case and if any objection had been raised, it would have been dealt with and recorded in his findings and sanction report.
38. Under cross-examination it was put to him that the Act did not provide for summary dismissal. Indran Pillay submitted that he had acted in terms of the common. He was aware of the appeal lodged by the Applicant but as he was functus officio he had referred it to the Respondent’s representative, Mr Bejenath.
The Applicant’s case
39. The Applicant maintained that the allegations made against were as a result of the witnesses conspiring with one another to have him dismissed as they want to have someone less qualified than him appointed in the mathematics department.
40. He has 28 years of teaching experience. On the day in question he was approached by J L Naidoo, an educator with approximately 5 years of experience, and told that he needed to report for invigilation duty. He was upset as he had not originally been on the roster to do invigilation duties. Educators who were returning from leave due to the risk posed by Covid to them as they suffer from co-morbities, were due to act as invigilators.
41. At the car park he had come across Pillay and he had again expressed his dissatisfaction. He was upset and the principal had told him to leave. Pillay had throttled him before he had got to his vehicle. After he had got in his vehicle and was driving away, Pillay had said to him that he would give him a hiding and put him in an oblong box. He had alighted from his vehicle and taken the metal rod from the boot. As he approached Pillay and while he was still metres away from him, Pillay had run into the office. The late Govender had been between him and Pillay and she must have assumed that he was going to strike her.
42. Under cross-examination the Application acknowledged the finding of and sanction imposed imposed by SACE. He submitted, however, that the evidence had been concocted by other staff members. Sullivan, a deputy principal at the School, had been targeting him for the past 20 years. He had caused learners to falsely implicate him in respect of the alleged misconduct. It was also as a result of having been falsely targeted that led to him charged in 2013. In total he had been subjected to four disciplinary hearings as a result of him being the target of false allegations.
43. On the day in question he got upset as J L Naidoo, who is nobody compared to him, had told to invigilate. When it was put to him that Pillay had testified that he had asked the Applicant to invigilate and that this evidence had not been challenged, his response was that the evidence was all lies. He subsequently conceded that the evidence might have been left unchallenged in error.
SUMMARY OF ARGUMENTS
The Respondent
44. It was submitted on behalf of the Respondent that three witnesses who had testified in respect of the alleged misconduct of the Applicant had given consistent and collaborative that he displayed aggressive conduct towards fellow educators. They had all testified that he had fetched an iron rod from his vehicle and brought it close to the heads of Jugganath and the late Govender.
45. The Applicant had a previously been found guilty by a disciplinary hearing of similar misconduct. He remains a threat to those at school and dismissal is an appropriate sanction.
46. With regards to the Applicant’s assertion that he had not been dismissed as he had applied for condonation of his late submission of his appeal, it was submitted that the EEA did not provide such condonation. As he had lodged his appeal late, he had lost his right to appeal and the finding and sanction of the presiding officer stands.
The Applicant
47. It was submitted that if there was merit in the allegations of the Respondent’s witnesses, they would have lodged criminal complaints, which they have not done. There is thus no merit in their claims.
48. In any event, the evidence of the Respondent’s witnesses had only established that the Applicant had made generalized threats and that these had not been directed at anyone in particular.
49. The presiding officer of his disciplinary hearing had previously dismissed the Applicant and thus he ought not have presided over the hearing. The dismissal was accordingly procedurally unfair.
50. The lodging of the Applicant’s appeal and application for condonation for its late filing, suspended the sanction of dismissal pending the Member of the Executive Committee’s consideration thereof. In support of this submission the Applicant referred to the case of G B Molosiwa and the Department of Education and Sports Development-North West Province & Others JR1735-15.
ANALYSIS OF EVIDENCE AND ARGUMENT
51. The relevant provisions of Schedule 2 to the Act include the following:
51.1. The presiding officer must be appointed by the employer-section 7(2);
51.2. If the presiding officer finds that an educator has committed misconduct, the presiding officer must, on behalf of the employer, impose a sanction, as contemplated in section 18(3) of the Act-section 8(1). The said section includes the sanction of dismissal;
51.3. The employer may not implement the sanction during an appeal by the educator-section 8(4);
51.4. The educator must, within five working days of receiving notice of the final outcome of a disciplinary hearing, submit the appeal form to the Member of the Executive Council-section 9(2).
52. As already indicated the Applicant both referred this alleged unfair dismissal dispute to the Council and simultaneously argued that the abovementioned provisions of the said Schedule meant that he had not been dismissed as he had lodged an appeal against the finding and sanction of the presiding officer. In support hereof he refers to pages 23-57 of exhibit B.
53. The difficulty the Applicant has with his submission that he has not been dismissed as he has lodged an appeal is that he admits that the appeal was not lodged within the prescribed period. He nevertheless further submits that he has applied for the late filing to be condoned and that this cures the late filing of his appeal and causes the sanction of dismissal to be suspended. I do not agree with these submissions. Firstly, unlike the Rules for the Conduct of proceedings in the CCMA, this Council and the various courts for example, no provision is made in Schedule 2 for the late filing of an appeal to be condoned. Secondly, even if condonation were allowed this would not necessarily lead to the automatic suspension of the sanction. When an appeal is late the correct procedure is to refer the dispute to the Council, which is what the Applicant in fact did.
54. In light of the above I find that the Respondent did dismiss the Applicant and an unfair dismissal dispute was correctly referred to the Council.
55. With regards to the procedural fairness of the dismissal it was submitted that the presiding officer ought to have recused himself as he had approximately 7 years previously presided over a disciplinary hearing involving the Applicant and had found him guilty of misconduct. The Applicant had been represented at his most recent disciplinary hearing by his legal practitioner. It is evident from the record of the disciplinary hearing (at pages 8-25 of exhibit A) that he did not apply for the recusal of the presiding officer. If he had a perception that the presiding officer might be biased, he should have brought the application for recusal then. The Applicant has not shown any actual bias by the presiding officer and I am satisfied that the proceedings were fair.
56. With regards to the substantive fairness of the dismissal the Respondent called three witnesses. I do not intend to repeat their evidence here as it was not seriously challenged by the Applicant. The Applicant simultaneously submits that the witnesses conspired amongst themselves to falsely implicate and he admits that on the day in question he was angry, he fetched an iron rod from his vehicle, raised it and approached Jugganath and the late Govender and that he made “generalized” insulting and derogatory comments towards other educators on the School premises.
57. On the Applicant’s own version he conducted himself in “an improper, disgraceful or unacceptable manner” and assaulted or threatened to assault another educator as provided in section 18(q) and (r) of the Act respectively. With regards to the events that transpired on the day in question I accept the evidence of the Respondent’s witnesses that the Applicant became extremely angry when asked to invigilate an examination, insulted educators who crossed his path, raised an iron rod towards the heads of both Jugganath and the late Govender and approached Pillay in an aggressive manner.
58. The Applicant has previously been found guilty by SACE of similar misconduct. I do not know the cause of the Applicant’s anger and aggressive outbursts but I agree with the submission on behalf of the Respondent that he is a threat to others. I accordingly find that the sanction of dismissal is appropriate.
AWARD
59. The application is dismissed.
J Kirby
Arbitrator