ELRC644-20/21 EC
Text
ELRC437-21/22EC
Award Date:
23 November 2021
Panelist: Selolong Mosoma
Case No.: ELRC437-21/22EC
Date of Award: 23 November 2021
In the ARBITRATION between:
NAPTOSA obo Solani ZZ
(Union / Applicant)
and
Department of Basic Education: Eastern Cape Provincial Government
(Respondent)
Applicant’s representative: Adv. Gavin Duncan Saayman
Applicant’s address: ,
Telephone: 0726568196
Telefax:
Email saaymangavin@gmail.com
Respondent’s representative: Mr. Lusapho Ndzongo
Respondent’s address: Department of Basic Education: Eastern Cape
Cradock District Office, Cradock
5880
Telephone: 0406084541
Telefax:
Email ndzongo.lusa@gmail.com
DETAILS OF HEARING AND REPRESENTATION
1. This is an arbitration matter between NAPTOSA obo Mr Solani ZZ and Department of Education Eastern Cape Provincial Government. The matter relates to an alleged unfair dismissal dispute and it was heard on 05 November 2021, via Zoom Video Conferencing Platform. The Applicant, Mr Solani ZZ was represented by Advocate GD Saayman, an official from National Professional Teachers’ organization of South Africa (NAPTOSA). The Respondent was represented by its Labour Relations officer Mr Lusapho Ndzongo.
2. Both parties submitted bundles of documents were accepted to what they purported to be. The Applicant bundle was named bundle “A” and Respondent bundle named bundle “R”.
3. The proceedings were digitally recorded and hand written notes were taken.
ISSUE TO BE DECIDED
4. I am required to determine whether the dismissal of the Applicant was both procedurally and substantively unfair.
5. In regard to procedural fairness of the dismissal, the issue is whether Mr Solani was afforded an opportunity to be represented by his union representative.
6. In regard to substantive fairness of the dismissal, the issues is whether the sanction of dismissal was appropriate in these circumstances.
7. Lastly, should the dismissal be held to have been unfair, I have to determine the appropriate remedy.
BACKGROUND
8. The Applicant was an educator at Phakama Hofmeyer High School since 01 April 2003. He was earning a gross monthly salary of R 22 536.00 at the time of his dismissal. As a result of an incident of the 05 May 2017, the Applicant was charged with two counts of misconducts namely;
a) It is alleged that you are guilty of misconduct in terms of section 17 (d) of the Educators Act: whereby you seriously assaulted with an intent to cause grievous bodily harm to the principal of Phakama Hofmeyer School, Mr W F Van Heerden, on 05 May 2017. (Charge 1)
b) It is alleged that you are guilty of misconduct in terms of section 18 (f) of Educators Act: whereby you actions towards the principal, Mr W F Van Heerden on the 05 May 2017, unjustifiably prejudiced he administration and discipline of Phakama Hofmeyer High School and the Department of Education.
9. The Applicant appealed against the sanction of dismissal to the Respondent’s appeal authority. However, the appeals authority dismissed his appeal.
10. The Applicant referred a dispute concerning an alleged unfair dismissal to the Council (ELRC). Both procedural and substantive fairness were challenged.
11. The Applicant sought retrospective reinstatement as a remedy.
SURVEY OF EVIDENCE
12. The provisions of section 138 of Labour Relations Act 66 of 1995 as amended, enjoins me to issue the arbitration award with brief reasons. I intend in this award to focus only on the issues that I perceive to be pertinent to the issues that were disputed by the parties.
Respondent’s Case
13. The first witness of the Respondent, Ms Sonia Septoe, testified under oath. She testified that she was employed by the Respondent as Senior Education Specialist Labour Relations. She stated that she was the presiding officer of the Applicant’s case. She averred that as a seasoned presiding officer, it was important that the Applicant was represented by representative of his choice. She further averred that the Applicant was afforded that opportunity and indicated that he was ready to conduct his own case and he had a prepared bundle of documents.
14. Lastly, she testified that the hearing was not concluded in one sitting which gave the Applicant an ample opportunity to bring representative of his choice if he deemed it necessary.
15. Under cross-examination, she disputed all facts put through by the Applicant representative.
16. The second witness of the Respondent, Willem Van Heerden, testified under oath as follows;
17. He stated that he was appointed as the principal of Phakama Hofmeyer High School with 36 years of service. He indicated that on the 05 Nay 2017, it was a normal day and all teachers were in the classes including himself. He averred that on his way to the second floor he noticed agriculture leaners basking in the sun. He stated that he then approached the leaners to establish the whereabouts of the Applicant because he was supposed to be in class teaching. He indicated that one leaner was sent to go and look for the Applicant and the leaner came back nervous and said I should go and get the keys myself. He further indicated that the Applicant had a problem of teaching and he was previously disciplined for such conduct.
18. He further indicated that he then went and found the Applicant sitting in the staff room in front of a computer. He stated that he then requested the Applicant to give him the keys of the classroom without any answer, he then repeated for the second time and the Applicant responded by saying “voetsek” or get lost.
19. He averred that he repeated for the third time and again the Applicant responded by saying “voetsek” or get lost. He stated that he then went around the table and switched off the computer on the plug. He indicated that the Applicant jumped from the table and attacked him, broke his glasses and torn his jersey. He averred that whilst busy wrestling with the Applicant the Deputy Principal came and separated them. He stated that he then ran to the office to get his car keys and went home .he further stated that he reported the incident to the district office and opened a criminal case at the police station. He also indicated that he went to the doctor to get medical attention. He averred that he was booked off until the end of April 2019. Mr Van Heerden testified that he did deserve to be brutally attacked by the Applicant and he was still traumatized by what happened.
20. Lastly, he testified that his trouser fell during the altercation with the Applicant and he felt so embarrassed because the deputy principal witnessed everything that happened and she was a woman.
21. Under cross-examination, he denied all the facts put through by the representative of the Applicant.
22. The third witness of the Respondent, Ms Nosipho Buyana-Fosi, testified under oath as follows;
23. She testified that she was appointed as deputy principal of Phakama Hofmeyer High School.
24. She stated that on the 05 May 2017, it was around 12H15 on a Friday and she did not have any class. She averred that she went to her car to fetch the addendum and had to make copies for the leaners at the admin block. She indicated that she found the Applicant and the principal at the corner of the book room and saw the Applicant holding the principal with the neck. She further indicated that she noticed the trouser of the principal was on his feet. She averred that that she then came between the Applicant and the principal and begged the Applicant to let go the principal. She stated that she would have taken a video of the incident only if she was technologically savvy. She further stated that the Applicant let go the principal after few minutes and the principal thanked her.
25. Lastly, she indicated that the principal left after the incident and she was appointed to act as the school principal.
26. Under cross- examination, she denied all the facts put through by the representative of the Applicant and maintained her version with regards to what transpired on the 05 May 2017.
Applicant’s Case
27. The Applicant, Mr Zamuxolo Zandikwase Solani, testified under oath as follows;
28. He testified that he was never suspend immediately subsequent to the incident of 05 May 2017, but he was only suspended on 30 January 2019. He further stated there was no investigation conducted between the 05 May 2017 and 30 January 2019.
29. He indicated that on the 05 May 2017 he was in the computer room typing his class test and one leaner came and told him that the principal was looking for him. He stated that he told the leaner to tell the principal that he was coming. Then the principal came and started shouting at him and said he must go to the class. He averred that he kept quite and continued typing his class test whist the principal was busy shouting.
30. The Applicant testified that the principal dragged him by his hand towards the door and when he tried to loosen his hand the principal pushed him against the wall and grabbed him by two hands. He further stated that then Ms Fosi came with two learners and she came between him and the principal.
31. He averred that the principal did not assault him but pushed him against the wall so he was defending himself.
32. He indicated that they had a meeting prior to this incident and he raised issues regarding the principal and did not want to talk to him anymore. He also indicated that he lodged numerous grievances with the Respondent against the principal and they were never resolved.
33. He testified that the notice that he was furnished with on the 08 October 2019, was not specific with regards to representation and witnesses. He stated that on the 15 October 2019, he was afforded 15 minutes to secure a representative and could not find one.
34. Lastly, he averred that the relationship between himself and the principal was not good owing to lots of things that happened since 2009.
35. During cross examination, the Applicant conceded that he was issued with three (03) notices of disciplinary and the first notice of the 30 November 2017, was more specific with regards to securing representative and witnesses. He denied all other facts put through by the representative of the Respondent.
SUBMISSION OF ARGUMANTS
36. Parties requested to submit written head of arguments by no later than the 12 November 2021. Both parties submitted written arguments and submission of both parties were carefully considered. I will not repeat everything that was said by the parties, as the contents basically mirror what was put to the parties during the leading of evidence and cross-examination during the arbitration itself.
ANALYSIS OF EVIDENCE AND ARGUMENT
37. Section 192 of Labour Relations Act as amended provides that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. Once the existence of the dismissal has been established, the employer must prove that the dismissal is fair. The dismissal of the Applicants was not in dispute in this matter. The Respondent bears the onus of proving on a balance of probabilities that the dismissal was fair.
38. In terms of section 188 (1) of Labour Relations Act as amended, the dismissal of the Applicants by the Respondent is unfair if the respondent fails to prove that the Applicants’ dismissal was based on a fair reason and proper procedure was followed. It is important to note that both procedure and substance were in dispute.
39. It is common cause that procedural fairness with regard to representation and the appropriateness of sanction are in dispute.
In terms of item 7 of schedule 8 of Labour Relations Act, Act 66 of 1995 as amended (the Act) , any person who is determining whether a dismissal for misconduct is fair should consider-
a) Whether or not the employee contravened a rule or standard regulating conduct in or of relevance to the workplace ; and
b) If the 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
40. The Applicants defense solely rested on two issues, not being afforded a right to representation and appropriateness of the sanction of dismissal.
41. It is common cause that the Applicant was employed as an educator at Phakama Hofmeyer High School.
42. It is further common cause that the Applicant was charged with two counts of misconduct and he was found guilty and dismissed on.
43. Turning to procedural fairness in respect of the Applicant’s right to representation, the Applicant attempted to distance himself from any knowledge of the notice detailing his rights pertaining the disciplinary hearing. He also persisted with the argument that the notices were not specific with regards to his right to secure his own representative and witnesses. He persisted with this argument despite the fact that he conceded that the first notice of the 30 November 2017 was very specific and detailed with regards to his rights as an alleged transgressor.
44. The Applicant in desperation disputed that the notices were not specific with regards to his rights to representation. Analysis of evidence of the presiding officer’s report revealed that the notice issued to the Applicant on the 30 November 2017 detailed all the rights of the Applicant as the alleged transgressor. Close analysis of evidence further revealed that the Applicant had an ample opportunity between the 30 November 2017 to 18 January 2018 to secure his representative and witness. Ms Septoe was consistent in her testimony and she made the necessary concessions during cross examination, whilst the Applicant blatantly denied afforded an opportunity to be represented. Under cross-examination the Applicant conceded that the notice of 30 November 2017 was not the same with the other two notices of 16 September 2019 and 15 October 2019. Having considered the facts before me I am persuaded that Ms Septoe’s version was more probable than that of the Applicant. The Applicant’s version that he was denied an opportunity to be represented is not persuasive because he conceded during cross examination that the notices were not the same.
45. I am inclined to agree with the Respondent that the Applicant was never denied his right to representation but he chose to conduct his own case.
46. In light of the above analysis I am not persuaded to accept the Applicant’s case he was denied his right to representation.
47. It is worth mentioning that the incident occurred on the 05 May 2017 and the dismissal of the Applicant was upheld by the appeal authority of the Respondent on the 18 August 2020. There was no evidence placed before me with regards to the cause of the delay of the disciplinary hearing and what prejudiced did the Applicant suffer as a result of the delay by the alleged Respondent’s delay to finalize the disciplinary hearing. It is also worth mentioning that this was not an issue in dispute for my determination.
48. The Applicant was charged with two counts of misconduct and found guilty on both counts and dismissed. In that on 05 May 2017, he assaulted the principal of Phakama Hofmeyer and also unjustifiably prejudiced the administration and discipline of the Respondent.
49. In so far as the appropriateness of the sanction of dismissal is concerned, the Respondent led evidence in respect of the charges.
50. The Respondent’s witnesses testified that the misconduct committed by the Applicant was of serious nature and such conduct warrants a sanction of dismissal.
51. There was factual dispute whether the Applicant assaulted the principal or not. Ms Fosi, the deputy principal, impressed me as a witness, her version was crisp and clear in respect of the incident and she never wavered from her testimony despite rigorous cross-examination. The Applicant on the other hand, appeared to have changed his version during arbitration when he initially denied assaulting the principal, but later during cross examination said he acted on self-defense. In the circumstances Ms Fosi version is held to be the most probable version as opposed to that of the Applicant.
52. The Applicant on the other denied assaulting the principal of Phakama Hofmeyer High School but he was defending himself after the principal pulled him buy his hand. It is therefore improbable that the principal assaulted him and he acted in self-defense.
53. The Applicant was found guilty of assaulting the principal on the 05 May 2017 and dismissed. The two witnesses of the Respondent being the principal and deputy principal corroborated each other on the material aspects of the incident of the 05 May 2017.
54. The undisputed evidence of Mr Van Heerden was that the Applicant told him to “voetsek” on two occasions when he requested him to go to his class. Another undisputed evidence of Mr Van Heerden was that the Applicant broke his glasses and torn his jersey when he assaulted him. Again, the uncontested evidence of the principal was that his trouser fell to his feet during the assault and he felt so embarrassed because the deputy principal had to witness everything.
55. Lastly, the uncontested version of the principal was that he submitted medical certificates to prove that he was assaulted by the Applicant and he was booked off for a very lengthy period.
56. The version of deputy principal is consistent with the version of the principal in that indeed the Applicant assaulted him on the 05 May 2017. There is no reason to disbelieve the version of the deputy principal that she witnessed the Applicant holding the principal with his neck and the principal’s trouser was on his feet. It is therefore not acceptable that the Applicant acted in self-defense and he had no intention of assaulting the principal. The Respondent has proven on balance of probabilities that the Applicant contravened section 17 (d) of Educators Employment Act in that he assaulted the Phakama Hofmeyer high School principal.
57. The Respondent’s disciplinary code prescribed the sanction of dismissal for such misconduct.
58. Section 17 (1) (d) of Educators Employment Act under serious misconduct says an educator must be dismissed if he or she is found guilty of- seriously assaulting, with the intention to cause grievous bodily harm to , a leaner, student or other employee.
59. The Applicant was dismissed for misconduct as the employee of the Respondent. It hardly needs to be reiterated what the Applicant was charged for.
60. The Respondent submissions points out evidence and charges the Applicant was found guilty and dismissed on.
61. The misconduct committed by the Applicant is of a serious nature and such misconduct had an impact on the employment relationship.
62. The gravity or seriousness of the Applicant’s misconduct tilts the scale to an extent that even the strongest mitigating factors and, like long service and clean service record of discipline are likely to have a minimal impact on the sanction imposed. In other words, whatever the amount of mitigation, the relationship is unlikely to be restored.
63. The Applicant committed egregious misconduct, there can be no doubt that dismissal was a fair and appropriate sanction in the circumstances.
64. In light of above, it is my finding that the sanction of dismissal for the transgressions committed by the Applicant was appropriate, and I make the following award:
AWARD
65. The dismissal of the Applicant, Mr ZZ Solani was both procedurally and substantively fair.
66. The Applicant is not entitled to any relief.
Selolong Mosoma
ELRC Arbitrator
Case No.: ELRC437-21/22EC
Date of Award: 23 November 2021
In the ARBITRATION between:
NAPTOSA obo Solani ZZ
(Union / Applicant)
and
Department of Basic Education: Eastern Cape Provincial Government
(Respondent)
Applicant’s representative: Adv. Gavin Duncan Saayman
Applicant’s address: ,
Telephone: 0726568196
Telefax:
Email saaymangavin@gmail.com
Respondent’s representative: Mr. Lusapho Ndzongo
Respondent’s address: Department of Basic Education: Eastern Cape
Cradock District Office, Cradock
5880
Telephone: 0406084541
Telefax:
Email ndzongo.lusa@gmail.com
DETAILS OF HEARING AND REPRESENTATION
1. This is an arbitration matter between NAPTOSA obo Mr Solani ZZ and Department of Education Eastern Cape Provincial Government. The matter relates to an alleged unfair dismissal dispute and it was heard on 05 November 2021, via Zoom Video Conferencing Platform. The Applicant, Mr Solani ZZ was represented by Advocate GD Saayman, an official from National Professional Teachers’ organization of South Africa (NAPTOSA). The Respondent was represented by its Labour Relations officer Mr Lusapho Ndzongo.
2. Both parties submitted bundles of documents were accepted to what they purported to be. The Applicant bundle was named bundle “A” and Respondent bundle named bundle “R”.
3. The proceedings were digitally recorded and hand written notes were taken.
ISSUE TO BE DECIDED
4. I am required to determine whether the dismissal of the Applicant was both procedurally and substantively unfair.
5. In regard to procedural fairness of the dismissal, the issue is whether Mr Solani was afforded an opportunity to be represented by his union representative.
6. In regard to substantive fairness of the dismissal, the issues is whether the sanction of dismissal was appropriate in these circumstances.
7. Lastly, should the dismissal be held to have been unfair, I have to determine the appropriate remedy.
BACKGROUND
8. The Applicant was an educator at Phakama Hofmeyer High School since 01 April 2003. He was earning a gross monthly salary of R 22 536.00 at the time of his dismissal. As a result of an incident of the 05 May 2017, the Applicant was charged with two counts of misconducts namely;
a) It is alleged that you are guilty of misconduct in terms of section 17 (d) of the Educators Act: whereby you seriously assaulted with an intent to cause grievous bodily harm to the principal of Phakama Hofmeyer School, Mr W F Van Heerden, on 05 May 2017. (Charge 1)
b) It is alleged that you are guilty of misconduct in terms of section 18 (f) of Educators Act: whereby you actions towards the principal, Mr W F Van Heerden on the 05 May 2017, unjustifiably prejudiced he administration and discipline of Phakama Hofmeyer High School and the Department of Education.
9. The Applicant appealed against the sanction of dismissal to the Respondent’s appeal authority. However, the appeals authority dismissed his appeal.
10. The Applicant referred a dispute concerning an alleged unfair dismissal to the Council (ELRC). Both procedural and substantive fairness were challenged.
11. The Applicant sought retrospective reinstatement as a remedy.
SURVEY OF EVIDENCE
12. The provisions of section 138 of Labour Relations Act 66 of 1995 as amended, enjoins me to issue the arbitration award with brief reasons. I intend in this award to focus only on the issues that I perceive to be pertinent to the issues that were disputed by the parties.
Respondent’s Case
13. The first witness of the Respondent, Ms Sonia Septoe, testified under oath. She testified that she was employed by the Respondent as Senior Education Specialist Labour Relations. She stated that she was the presiding officer of the Applicant’s case. She averred that as a seasoned presiding officer, it was important that the Applicant was represented by representative of his choice. She further averred that the Applicant was afforded that opportunity and indicated that he was ready to conduct his own case and he had a prepared bundle of documents.
14. Lastly, she testified that the hearing was not concluded in one sitting which gave the Applicant an ample opportunity to bring representative of his choice if he deemed it necessary.
15. Under cross-examination, she disputed all facts put through by the Applicant representative.
16. The second witness of the Respondent, Willem Van Heerden, testified under oath as follows;
17. He stated that he was appointed as the principal of Phakama Hofmeyer High School with 36 years of service. He indicated that on the 05 Nay 2017, it was a normal day and all teachers were in the classes including himself. He averred that on his way to the second floor he noticed agriculture leaners basking in the sun. He stated that he then approached the leaners to establish the whereabouts of the Applicant because he was supposed to be in class teaching. He indicated that one leaner was sent to go and look for the Applicant and the leaner came back nervous and said I should go and get the keys myself. He further indicated that the Applicant had a problem of teaching and he was previously disciplined for such conduct.
18. He further indicated that he then went and found the Applicant sitting in the staff room in front of a computer. He stated that he then requested the Applicant to give him the keys of the classroom without any answer, he then repeated for the second time and the Applicant responded by saying “voetsek” or get lost.
19. He averred that he repeated for the third time and again the Applicant responded by saying “voetsek” or get lost. He stated that he then went around the table and switched off the computer on the plug. He indicated that the Applicant jumped from the table and attacked him, broke his glasses and torn his jersey. He averred that whilst busy wrestling with the Applicant the Deputy Principal came and separated them. He stated that he then ran to the office to get his car keys and went home .he further stated that he reported the incident to the district office and opened a criminal case at the police station. He also indicated that he went to the doctor to get medical attention. He averred that he was booked off until the end of April 2019. Mr Van Heerden testified that he did deserve to be brutally attacked by the Applicant and he was still traumatized by what happened.
20. Lastly, he testified that his trouser fell during the altercation with the Applicant and he felt so embarrassed because the deputy principal witnessed everything that happened and she was a woman.
21. Under cross-examination, he denied all the facts put through by the representative of the Applicant.
22. The third witness of the Respondent, Ms Nosipho Buyana-Fosi, testified under oath as follows;
23. She testified that she was appointed as deputy principal of Phakama Hofmeyer High School.
24. She stated that on the 05 May 2017, it was around 12H15 on a Friday and she did not have any class. She averred that she went to her car to fetch the addendum and had to make copies for the leaners at the admin block. She indicated that she found the Applicant and the principal at the corner of the book room and saw the Applicant holding the principal with the neck. She further indicated that she noticed the trouser of the principal was on his feet. She averred that that she then came between the Applicant and the principal and begged the Applicant to let go the principal. She stated that she would have taken a video of the incident only if she was technologically savvy. She further stated that the Applicant let go the principal after few minutes and the principal thanked her.
25. Lastly, she indicated that the principal left after the incident and she was appointed to act as the school principal.
26. Under cross- examination, she denied all the facts put through by the representative of the Applicant and maintained her version with regards to what transpired on the 05 May 2017.
Applicant’s Case
27. The Applicant, Mr Zamuxolo Zandikwase Solani, testified under oath as follows;
28. He testified that he was never suspend immediately subsequent to the incident of 05 May 2017, but he was only suspended on 30 January 2019. He further stated there was no investigation conducted between the 05 May 2017 and 30 January 2019.
29. He indicated that on the 05 May 2017 he was in the computer room typing his class test and one leaner came and told him that the principal was looking for him. He stated that he told the leaner to tell the principal that he was coming. Then the principal came and started shouting at him and said he must go to the class. He averred that he kept quite and continued typing his class test whist the principal was busy shouting.
30. The Applicant testified that the principal dragged him by his hand towards the door and when he tried to loosen his hand the principal pushed him against the wall and grabbed him by two hands. He further stated that then Ms Fosi came with two learners and she came between him and the principal.
31. He averred that the principal did not assault him but pushed him against the wall so he was defending himself.
32. He indicated that they had a meeting prior to this incident and he raised issues regarding the principal and did not want to talk to him anymore. He also indicated that he lodged numerous grievances with the Respondent against the principal and they were never resolved.
33. He testified that the notice that he was furnished with on the 08 October 2019, was not specific with regards to representation and witnesses. He stated that on the 15 October 2019, he was afforded 15 minutes to secure a representative and could not find one.
34. Lastly, he averred that the relationship between himself and the principal was not good owing to lots of things that happened since 2009.
35. During cross examination, the Applicant conceded that he was issued with three (03) notices of disciplinary and the first notice of the 30 November 2017, was more specific with regards to securing representative and witnesses. He denied all other facts put through by the representative of the Respondent.
SUBMISSION OF ARGUMANTS
36. Parties requested to submit written head of arguments by no later than the 12 November 2021. Both parties submitted written arguments and submission of both parties were carefully considered. I will not repeat everything that was said by the parties, as the contents basically mirror what was put to the parties during the leading of evidence and cross-examination during the arbitration itself.
ANALYSIS OF EVIDENCE AND ARGUMENT
37. Section 192 of Labour Relations Act as amended provides that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. Once the existence of the dismissal has been established, the employer must prove that the dismissal is fair. The dismissal of the Applicants was not in dispute in this matter. The Respondent bears the onus of proving on a balance of probabilities that the dismissal was fair.
38. In terms of section 188 (1) of Labour Relations Act as amended, the dismissal of the Applicants by the Respondent is unfair if the respondent fails to prove that the Applicants’ dismissal was based on a fair reason and proper procedure was followed. It is important to note that both procedure and substance were in dispute.
39. It is common cause that procedural fairness with regard to representation and the appropriateness of sanction are in dispute.
In terms of item 7 of schedule 8 of Labour Relations Act, Act 66 of 1995 as amended (the Act) , any person who is determining whether a dismissal for misconduct is fair should consider-
a) Whether or not the employee contravened a rule or standard regulating conduct in or of relevance to the workplace ; and
b) If the 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
40. The Applicants defense solely rested on two issues, not being afforded a right to representation and appropriateness of the sanction of dismissal.
41. It is common cause that the Applicant was employed as an educator at Phakama Hofmeyer High School.
42. It is further common cause that the Applicant was charged with two counts of misconduct and he was found guilty and dismissed on.
43. Turning to procedural fairness in respect of the Applicant’s right to representation, the Applicant attempted to distance himself from any knowledge of the notice detailing his rights pertaining the disciplinary hearing. He also persisted with the argument that the notices were not specific with regards to his right to secure his own representative and witnesses. He persisted with this argument despite the fact that he conceded that the first notice of the 30 November 2017 was very specific and detailed with regards to his rights as an alleged transgressor.
44. The Applicant in desperation disputed that the notices were not specific with regards to his rights to representation. Analysis of evidence of the presiding officer’s report revealed that the notice issued to the Applicant on the 30 November 2017 detailed all the rights of the Applicant as the alleged transgressor. Close analysis of evidence further revealed that the Applicant had an ample opportunity between the 30 November 2017 to 18 January 2018 to secure his representative and witness. Ms Septoe was consistent in her testimony and she made the necessary concessions during cross examination, whilst the Applicant blatantly denied afforded an opportunity to be represented. Under cross-examination the Applicant conceded that the notice of 30 November 2017 was not the same with the other two notices of 16 September 2019 and 15 October 2019. Having considered the facts before me I am persuaded that Ms Septoe’s version was more probable than that of the Applicant. The Applicant’s version that he was denied an opportunity to be represented is not persuasive because he conceded during cross examination that the notices were not the same.
45. I am inclined to agree with the Respondent that the Applicant was never denied his right to representation but he chose to conduct his own case.
46. In light of the above analysis I am not persuaded to accept the Applicant’s case he was denied his right to representation.
47. It is worth mentioning that the incident occurred on the 05 May 2017 and the dismissal of the Applicant was upheld by the appeal authority of the Respondent on the 18 August 2020. There was no evidence placed before me with regards to the cause of the delay of the disciplinary hearing and what prejudiced did the Applicant suffer as a result of the delay by the alleged Respondent’s delay to finalize the disciplinary hearing. It is also worth mentioning that this was not an issue in dispute for my determination.
48. The Applicant was charged with two counts of misconduct and found guilty on both counts and dismissed. In that on 05 May 2017, he assaulted the principal of Phakama Hofmeyer and also unjustifiably prejudiced the administration and discipline of the Respondent.
49. In so far as the appropriateness of the sanction of dismissal is concerned, the Respondent led evidence in respect of the charges.
50. The Respondent’s witnesses testified that the misconduct committed by the Applicant was of serious nature and such conduct warrants a sanction of dismissal.
51. There was factual dispute whether the Applicant assaulted the principal or not. Ms Fosi, the deputy principal, impressed me as a witness, her version was crisp and clear in respect of the incident and she never wavered from her testimony despite rigorous cross-examination. The Applicant on the other hand, appeared to have changed his version during arbitration when he initially denied assaulting the principal, but later during cross examination said he acted on self-defense. In the circumstances Ms Fosi version is held to be the most probable version as opposed to that of the Applicant.
52. The Applicant on the other denied assaulting the principal of Phakama Hofmeyer High School but he was defending himself after the principal pulled him buy his hand. It is therefore improbable that the principal assaulted him and he acted in self-defense.
53. The Applicant was found guilty of assaulting the principal on the 05 May 2017 and dismissed. The two witnesses of the Respondent being the principal and deputy principal corroborated each other on the material aspects of the incident of the 05 May 2017.
54. The undisputed evidence of Mr Van Heerden was that the Applicant told him to “voetsek” on two occasions when he requested him to go to his class. Another undisputed evidence of Mr Van Heerden was that the Applicant broke his glasses and torn his jersey when he assaulted him. Again, the uncontested evidence of the principal was that his trouser fell to his feet during the assault and he felt so embarrassed because the deputy principal had to witness everything.
55. Lastly, the uncontested version of the principal was that he submitted medical certificates to prove that he was assaulted by the Applicant and he was booked off for a very lengthy period.
56. The version of deputy principal is consistent with the version of the principal in that indeed the Applicant assaulted him on the 05 May 2017. There is no reason to disbelieve the version of the deputy principal that she witnessed the Applicant holding the principal with his neck and the principal’s trouser was on his feet. It is therefore not acceptable that the Applicant acted in self-defense and he had no intention of assaulting the principal. The Respondent has proven on balance of probabilities that the Applicant contravened section 17 (d) of Educators Employment Act in that he assaulted the Phakama Hofmeyer high School principal.
57. The Respondent’s disciplinary code prescribed the sanction of dismissal for such misconduct.
58. Section 17 (1) (d) of Educators Employment Act under serious misconduct says an educator must be dismissed if he or she is found guilty of- seriously assaulting, with the intention to cause grievous bodily harm to , a leaner, student or other employee.
59. The Applicant was dismissed for misconduct as the employee of the Respondent. It hardly needs to be reiterated what the Applicant was charged for.
60. The Respondent submissions points out evidence and charges the Applicant was found guilty and dismissed on.
61. The misconduct committed by the Applicant is of a serious nature and such misconduct had an impact on the employment relationship.
62. The gravity or seriousness of the Applicant’s misconduct tilts the scale to an extent that even the strongest mitigating factors and, like long service and clean service record of discipline are likely to have a minimal impact on the sanction imposed. In other words, whatever the amount of mitigation, the relationship is unlikely to be restored.
63. The Applicant committed egregious misconduct, there can be no doubt that dismissal was a fair and appropriate sanction in the circumstances.
64. In light of above, it is my finding that the sanction of dismissal for the transgressions committed by the Applicant was appropriate, and I make the following award:
AWARD
65. The dismissal of the Applicant, Mr ZZ Solani was both procedurally and substantively fair.
66. The Applicant is not entitled to any relief.
Selolong Mosoma
ELRC Arbitrator