ELRC644-20/21 EC
Text
ELRC588-19/20GP
Award Date:
01 December 2021
Commissioner: Eva Ngobeni
Case No: ELRC588-19/20GP
Date of Award: 01 December 2021
In the Dispute between:
Fanyana Mabasa
(Applicant)
And
Department of Education (Gauteng)
(Respondent)
Applicant’s representative: J. Roets (Attorney)
E-mail:
Fax:
Contact number:
Respondent’s representative: Ndhlovu V (Employee)
E-mail:
Fax:
Contact number:
DETAILS OF HEARING AND REPRESENTATION
1. This matter was scheduled for arbitration on 17 January 2020, 17 November 2020, 01 February, 02 February, 31 March, 10 September and 04 November 2021 at Department of Education offices (Gauteng).
2. Both parties were in attendance and representation from all parties is as indicated above. The Respondent submitted a bundle of documents marked bundle “R”. The Applicant submitted a bundle of documents marked bundle “A”. Parties agreed to submit written closing arguments by no later than 12 November 2021.
BACKGROUND OF THE DISPUTE
3. The Applicant was employed with the Department of Education as an educator, post level 1 effective 23 January 1995. The Applicant earned R22 136-50 per month. The Applicant was charged on allegations of misconduct related to:
a) item 18 (1) (q) of the employment of Educators Act in that on or around 01 February 2017, he conducted himself in an improper, disgraceful, and unacceptable manner in that he insulted Ms. M P Mthimkhulu, the Head of Department (HOD) from the same school by saying “voetsek nondidwa” (meaning bitch).
b) item 18(1)(r) of the Employment of Educators Act in that on or about 23 February 2017, he committed an act of misconduct in that he assaulted Siyabonga Makhanya and Tokollo Mokate, Grade 7B boy learners by hitting them with a red pipe on the back.
c) Item 18(1)(q) of the Employment of Educators Act in that on or about 23 February 2017 he conducted himself in an improper, disgraceful, and unacceptable manner in that he uttered inappropriate words to Siyabonga Makhanya and Tokollo Mokate, Grade 7B learners by calling them by their private parts such as (testicles, penis and pubic hair).
4. The Applicant was informed of the charges on 16 August 2017. The disciplinary enquiry was finalized on 19 October 2017, with the outcome communicated to the Applicant on 13 February 2018. Subsequent to his dismissal, the Applicant filed an appeal with the Respondent on 13 February 2018. The outcome of the appeal was communicated to the Applicant on 30 August 2019. The Applicant was dismissed and filed a referral to conciliation. The matter remained unresolved at conciliation hence these proceedings. The applicant sought retrospective reinstatement as a relief.
ISSUE FOR DETERMINATION
5. I must determine whether the applicant’s dismissal is substantively and procedurally unfair. Parties agreed on pre-arb and the following issues are to be determined:
a) whether the Respondent failed to hold an investigatory enquiry prior to the disciplinary enquiry being instituted;
b) whether the Respondent delayed the institution of a disciplinary process;
c) whether the Respondent failed to comply with its own disciplinary code:
I) to hold a disciplinary enquiry within 10 days after the Applicant was given notice of the disciplinary enquiry;
II) to issue written notice of disciplinary enquiry which contained date, time and venue of the hearing;
III) to conclude the matter in the shortest period;
IV) to provide the Applicant with written reasons for the decision taken;
V) after transferring the Applicant, a disciplinary enquiry to be held within a month;
VI) failure to comply with a postponement and adhering to the 90 days period of a postponement;
VII) to provide reasons for the delay in finalising the matter;
VIII) applicant was not afforded an opportunity to mitigate;
IX) to issue the outcome within five (5) working days after conclusion of the disciplinary enquiry.
d) the Applicant’s clean record was not taken into account;
e) the Applicant’s personal circumstances were not taken into account;
f) the Applicant’s length of service was not considered;
g) the rule or standard contravened was not fair and reasonable;
h) the Applicant was not informed of the rule prior to the alleged contravention; and
i) the sanction was too harsh.
6. If the dismissal is found to be unfair, I must determine whether retrospective reinstatement is the appropriate remedy.
SURVEY OF EVIDENCE AND ARGUMENTS
A summary of the respondent’s evidence is as follows – only salient points are outlined:
Dr Sbongile Mkhombo testified as follows:
7. She is employed with the department as a Senior Education Specialist for Nguni Languages which includes Isizulu, IsiXhosa, Venda and Tsonga. She has a Phd, majoring in African Languages with UNISA. Her native language is IsiZulu. She stated that the word “nondidwa” means bitch, harlot, or prostitute. A woman referred to as such is a person who sleeps around. The word is an insult and offensive as it shows disrespect to another being. It is inappropriate for a male educator to call a colleague with such word.
8. On charge three (3), the use of the word “amasende” directed at learners is inhumane, disgraceful, and derogatory. The words such as those cannot be uttered in public. Under cross-examination she stated that she was not present when the words were uttered. She stated that regardless of the context in which the words were uttered, she does not think it was proper of an educator to use the language. More so, he is an adult and a native speaker, the use of such language in culture is an insult. She argued that if the words were not insulting, the learners could not have reported the incident.
9. She argued that the context within which the words were used, denotes an insult. When a version was put to her that the use of the words (penis, testicles and pubic hair) in class was not derogatory as it was during a life skills class; she argued that the tone changes the meaning of the word uttered.
Portia Mthimkhulu testified as follows:
10. She is employed at Kutloanong Primary School as a Head of Department for English, Sotho, Life Skills and Life Orientation. The Applicant sought permission to go to Khayelihle to collect his payslip. He was granted permission, but he delayed, and learners started flocking into his class. She met him at the passage and asked him on who was to look after his class and his response was “voetsek nondidwa”.
11. The word “voetsek” is uttered when one is annoyed with another person. She speaks Sotho but the word “nondidwa” implies “sifebe” which is derogatory. None of the teachers were around but security personnel may have heard the utterance. The Applicant’s tone was harsh, and his facial expression confirmed that he meant what he was saying. The word can also not be used on a prostitute because it is heavy and derogatory. It belittles a person when so interpreted. One may not even say “voetsek” to a child as it personifies a dog. The English version of bitch is lighter compared to the meaning attributed to the word in an African language or context.
12. Under cross-examination she argued that from date of the incident, she had not been in speaking terms with the Applicant. She would greet and he remained quiet. He never apologized for the insult. She corrected the date of the incident to 01 February 2021. She is not fluent in IsiZulu but understands the word “nondidwa” to mean someone who sleeps around. According to the dictionary, she stated that the Applicant perceives her as a female dog. The female security officer on duty heard the argument between herself and the Applicant. She reported the incident to Mr. Twala (the principal) the following day. Page 36 of R is an intention to institute disciplinary proceedings against the Applicant. The document is dated 06 March 2017.
13. The Applicant was suspended in June 2017. She argued that this did not mean that she had no problem working with the Applicant, she kept up with him because he was contracted by the Department. She reported the incident to the principal and had informed him (principal) that she no longer wanted to issue instructions to the Applicant because he was defiant. The relationship was strained. She was forced to communicate with him because of work. There was no other incident after his suspension.
Moses Twala testified as follows:
14. He is employed as a principal of the school with the Department. The Applicant was his subordinate and he was transferred to his school from Khayelihle. The Applicant taught Mathematics and Life Orientation. Life skills entails how kids are to interact with life, their physique and exercising. It does not include the anatomy of a male body. Ms. Mthimkhulu reported the incident where she was insulted by the Applicant who called her a “nondidwa”. She was very angry, shaken and shed a tear as she related the story. The incident happened on 31st of January 2017, and he wrote a letter to the district on 01st of February 2017.
15. Following his escalation of the matter to the district, there were other incidents involving abuse to learners. He does not have the powers to transfer an educator after an offence is committed, the issues get escalated to the district and the department attending to employment law. The relationship was strained hence he requested that the Applicant be transferred from the school. After term one (1) schedule, the Applicant failed to comply with the submissions. When asking Ms. Mthimkhulu, she stated that the Applicant failed to submit documents. He engaged the Applicant with the view that the situation will improve. Around May, he wrote a letter to the department dealing with employment and requested for the Applicant to be transferred.
16. Ms Mthimkhulu was afraid to confront the educator on work related issues for of being insulted. The relationship worsened between Ms Mthimkhulu and the Applicant. The incident pertaining to charge two (2) occurred during a grade 7 class. In mathematics, there is nowhere an educator talks of human anatomy. The guardian articulated the insults in vernacular. Some words when stated in a text, gives meaning. The manner in which the words were uttered, was an insult. The incident happened on 23 January 2017 other than 23 February 2017. He attended the disciplinary enquiry with both learners as witnesses. He was informed that there was no need for him and the learners to lead evidence because the Applicant pleaded guilty.
17. A code of conduct is displayed on the wall, which requires an educator to act in a professional manner and promote a good working relationship. During staff meetings, teachers get reminded that it is illegal to use corporal punishment on learners. He went around to remove all pipes and threw them away. The Applicant was aware of all policies pertaining to corporal punishment and attended training on the policies. When dealing with misconduct, an escalation is sent through a referral to integrated District Support Official (herein referred to as “IDSO”), who then sends the document to a department dealing with employment related matters. He had a good working relationship with the Applicant, and they hanged out together when the Applicant was a member of the SGB.
18. Under cross-examination he disputed the version that words directed at learners were uttered in English. He heard from the parent that the words were uttered in IsiZulu. He does not recall the reason for which the incident was not reported timeously. The learners continued being taught by the Applicant. He stated that he had hoped that the Applicant would repent. It did not occur to him to remove learners from the Applicant’s class. When a version was put to him that there was a security guard that walked into class and hit all learners; his response was that the guard’s employment was terminated. He conceded that the Applicant’s suspension was affected on 10 August 2017.
19. The Applicant was removed from the school, seven (7) months after his commission of offence because he had escalated the matter to the relevant structures. He could not remove the Applicant to report to another HOD because this could have messed up the structure. The Applicant was law unto himself. The office dealing with employment issues was aware of the incidents because he communicated with them on a regular basis. The seriousness of the matter and the manner in which the assault was conducted left bruises on the back and hand of learners. He did not think of removing the pipe from the Applicant’s classroom.
20. He argued that the one (1) learner was hit on the arm and the other on his back. When a version was put to him that kids were banging chairs and desks hence the Applicant disciplined them; his response was that the Applicant stood outside during his period and neglected learners. He escalated the issue because it was out of his control. It was not the first time for the Applicant to be transferred. It is immaterial whether the Applicant used a white or red pipe, corporal punishment is abolished and against the law. The Applicant was the one removed from class other than learners because the learners get angry and scared of an educator.
Siyabonga Makhanya testified as follows:
21. He is currently in grade 11. He was taught Mathematics by the Applicant in grade 7. The incident happened two (2) weeks after they opened schools into the new year. There were learners murmuring in class during the Applicant’s period. He enquired with the class on who was murmuring, and they pointed at him and Tokollo. He could not recall whether the pipe used was red or white. He was not hit on the palm of his hand but on the arm and back. The pipe was long and could not have been shorter than 20cm. The Applicant tended to call them dogs and also referred to “testicles”, “pubic hair’ and “penis”. He would utter these words during class.
22. Under cross-examination he stated that the incident happened in January 2017. It was not him murmuring but Karabo and his friends. He disputed the version that learners were banging desks. He argued that the noise which the Applicant questioned them about was the murmuring. He further argued that the Applicant uttered the words in IsiZulu referring to “m…nde”, “ma…shi”, “ mpi..i. He disputed the version that the Applicant informed them that now that they think they have fully developed private parts, then they are grown. He testified that the Applicant uttered the words whilst insulting them. The educator acted inappropriately because the words were insulting and not uttered during a life orientation class.
23. He was hit three (3) times on the back and once on the arm. He developed a welt and the principal saw him 20 minutes before end of school. He did not report the matter immediately because he attended his computer class. He went with Tokollo to the principal’s office. There were two (2) welts which developed on Tokollo who was hit five (5) times on the back and arm. He informed his grandmother about the incident and two (2) days later she approached the principal. He attended the Applicant’s classes until his departure in August. He disputed the version that the Applicant followed them to the principal’s office and apologized. He was afraid of the Applicant but could not inform his granny. He wrote a statement with Tokollo which they gave to the principal. He did not bleed and had no open wound. His granny went to the school twice, even during parents meeting day.
Karabo Tokollo Mokate testified as follows:
24. He is currently a grade 10 learner. There was a disturbance in class and the Applicant chose the two (2) of them. He assaulted them on their backs. The pipe left marks and a friend of his took pictures. Siyabonga enquired with the Applicant on why he was hitting them, the Applicant physically lifted Siyabonga and threw him out of the classroom. The door was left open after the Applicant had thrown Siyabonga outside. The extent of the pipe was similar to a ruler. He stated that he has never seen a white pipe. After throwing Siyabonga outside, the Applicant returned to class and stated that they think that they are adults.
25. He stated that the Applicant taught Mathematics. Under cross-examination, he stated that the Applicant spoke in IsiZulu. He was hit on the back and the upper part. He showed the marks to his family, and they took pictures to show to the principal. The phone he used to take pictures was damaged. He could not recall whether he showed the principal the marks. He did not attend the disciplinary enquiry. He argued that the whole class was chatting, and the Applicant chose the two (2) of them. He argued that the Applicant did not teach them life skills but were taught by male educator Nkosi. The Applicant usually insults them. He was not taken out of class because he kept quiet and looked at the Applicant.
26. Siyabonga was the one who responded. The Applicant was dismissed because he was not at the school the whole year. He argued that the Applicant uttered the words in Isizulu then changed to English. The Applicant never tendered an apology. He conceded that the pipe was inside the cupboard. He conceded that the class was making noise, but he was hit on the back and arm. He argued that he was having a conversation. He did not report the incident at the office but did so at home and then to the principal’s office. He does not recall the actual date he reported to the principal. He disputed the version that after he was hit, he reported the incident to the principal and the Applicant followed him through.
The applicant testified under oath – only salient points are mentioned:
27. An outcome leading to his dismissal is dated 08 August 2019 and was issued to him on 30 August 2019. He signed for his charges on 16 August 2017. On 13 February 2018, he was issued with an outcome of the disciplinary enquiry. The disciplinary enquiry took a year to finalize. The outcome of the appeal was issued to him after almost two (2) years. He was not issued with a reasons for his dismissal. Although the outcome of the appeal should have been issued to him within five (5) days, it was issued outside the required time period. He does not recall whether he was informed in writing of the venue and date of the disciplinary enquiry.
28. He was informed by the representative that he should attend the disciplinary enquiry. He was transferred on 10 August and his disciplinary enquiry should have been finalized within a month. It took the Respondent five (5) months to finalize his disciplinary enquiry. He was not requested to have the matter postponed as a result of non-compliance with the Act. The disciplinary enquiry was not concluded within 10 days of receiving notice. His notice was issued on 16 August 2017 and concluded in October 2017. He was not afforded an opportunity to mitigate. Ms. Mthimkhulu and learners were not called as witnesses during a disciplinary enquiry.
29. He conceded that he insulted Ms. Mthimkhulu and pleaded guilty at the disciplinary enquiry. He was not asked to explain on why he was pleading guilty. He did not mean to call Ms. Mthimkhulu with the name. He uttered the word in anger because she kept on changing her version. There were no witnesses to the insults. He conceded that the word “nondidwa” means bitch. His utterance of the words did not affect his relationship with Ms. Mthinkhulu. He was not placed to report under another person. On charge 2, he testified that the two (2) learners misbehaved during life skills period. He was angry because they were disturbing his class.
30. He opened the cupboard, removed the white pipe and hit them on their palms. His intention was to discipline the kids. The boys were mischievous and had to ensure that they sit in front of the classroom. He never chased them out of the classroom. After the incident, the one child went to the principal’s office, and he followed him. He explained the situation to the principal and went back to his classroom to continue with his session. He continued teaching the learners after the incident, and they passed at the end of the year. He taught them Maths and life skills. On charge 3, he confirmed that the incident happened.
31. He stated that he informed that now that they had grown bigger and developed, they think they can match with him. He uttered the words in English and IsiZulu. The school is Sotho speaking. He hit the learners two to three times and he is aware that this was wrong, but he did so out of anger. He is apologizing to the learners and to the department. He was not informed that parents of those learners approached the principal. The principal took the pipe after the incident. He never got along with the principal and did not know that the principal was building a case against him. There is a time lapse between the first and second incident.
32. He is currently unemployed because he did not try to find employment. His means of survival is from selling houses where he is a commission earner. Under cross-examination he conceded that he was Zulu speaking. He was informed of the date and venue of the hearing. He signed a document as per page 34 of R on 16 August 2017, requiring him to attend a pre-hearing meeting scheduled for 22 August 2017. On the same date, he acknowledged receipt of a notice to attend a disciplinary enquiry setting out the charges against him. He argued that he was not aware that there was no need for the department to issue him with a date and venue of the actual hearing because they wanted this to be a mutual hearing.
33. He argued to have not been a member of the SGB and that was he only affiliated to SADTU but not a representative. He received notice of intention to institute disciplinary enquiry against him on 6 March 2017. He wrote page 37 of R as a complaint against his principal not as a response to the intention to institute discipline against him. He argued that he misplaced the allegations referenced on a letter as per page 37 of R. He was evasive when asked whether he uttered the word “voetsek” in a jovial state. He argued to have apologized to Ms. Mthimkhulu and she understood. He was so angry and uttered the words out of anger. He could not respond when asked whether the word is offensive.
34. When asked whether he agreed with Dr Mkhombo that the “nondidwa” implies a harlot, bitch, or prostitute; his response was that he never understood the actual meaning of the word. He does not deny what he said. When a version was put to him that the words uttered are offensive, degrading and an insult to a female; his response was that that was the reason he apologized. He argued that there was no bad blood between himself and Ms. Mthimkhulu. He did not think of approaching the principal with his challenge. He is aware that corporal punishment was banished by an Act of parliament.
35. He argued that he made a mistake to use a pipe to hit learners. He kept the pipe in his cupboard because there were people who were maintaining electricity in classrooms. He meant to scare the workers because he was angry. He conceded that the constitution of SACE regulates his appointment and conduct directed at learners, colleagues, and members of the public. He never thought the use of insulting language would be an issue. He mentioned a spade, a spade and never thought it would be offensive to kids.
ANALYSIS OF EVIDENCE AND ARGUMENT
36. Section 192 (1) of the Labour Relations Act stipulates that “In any proceedings concerning a dismissal, the employee must establish the existence of the dismissal”. Dismissal is not in dispute. Therefore, the onus to prove the fairness of the dismissal rests with the respondent. In doing so, Section 188 (1) of the Act requires the employer to prove:
(i) that the employee was dismissed for a fair reason relating to the employee’s conduct or capacity; or based on the employer’s operational requirement, and
(ii) that the employee’s dismissal was done in accordance with a fair procedure.
37. It is common cause that the Applicant uttered the word “voetsek nondidwa” to Ms. Mthimkhulu, an HOD at the school. The Applicant did not dispute the version that he hit the two (2) learners Tokollo Mokate and Siyabonga Makhanya with a pipe. Instead, the Applicant argued that he hit them with a white pipe other than a white pipe. Moreover, he argued that he did not hit them on the back and arm as alleged but on the palm of their hands. The Applicant further conceded that he uttered the words relating to the male body anatomy to the learners. He argued to have uttered the words in English, during a life skills class. What is apparent from the Applicant’s evidence is that he stated the words out of anger, with vengeance to learners who, according to him were making noise during class. It is improbable that such utterance was meant to advance the learnings relating to a life skills class.
38. Section 10 of the Schools Act prohibits corporal punishment in schools, and states that:
1) no person may administer corporal punishment at a school to a learner.
2) any person who contravenes subsection (1) is guilty of an offence, and liable on a conviction to a sentence which could be imposed for assault.
39. The Applicant conceded that he was aware of a law which banished the use of corporal punishment at schools. The rule against corporal punishment is entrenched in the constitution in terms of section 28 (1) (d) which is meant to protect children against maltreatment, neglect, abuse, or degradation. Much as the department did not take action against the educator immediately after the incident, by either removing the educator from the pupil’s class, the effect of his conduct can never be underestimated as it impairs on human dignity and the right to have such dignity protected. The witness, Tokollo Mokate testified that he feared the Applicant although he continued teaching him until August of 2017.
40. A rule banishing corporal punishment is a valid and reasonable rule as it protects the interest of a child not to be treated or punished in a cruel, inhuman, or degrading manner. It is immaterial on which body part they were hit and whether the pipe was white or red. The Applicant was in contravention of the rule governing conduct in the workplace. When one looks at the totality of the charges levelled against the Applicant, of which, all three are admitted, they border on the element of intimidation and harassment which is discriminatory in nature.
41. Further to this, the impact of which is that of degradation and humiliation. This is impermissible in the society in which we live in especially from a person who is required in terms of the code of conduct of SACE, to conduct himself in professional manner when dealing with learners, colleagues, and the public. On procedure, it is evidence that the Applicant committed the offence on or around January / February 2017. In March 2017, he was required to write to the Respondent on why there should be no disciplinary action taken against him for insulting Ms Mthimunye. It took the Respondent considerable time before charges could be levelled against the Applicant.
42. There is no reasonable explanation on what caused the delay, save to state that discipline lies with the district office after escalation from the school. In addition, and after the transfer, there is a requirement that discipline should be effected within a period of ninety (90) days and in the event of a postponement, such should be communicated to the Applicant. I must admit that the Applicant was duly informed of the venue and time of the disciplinary enquiry, although such was not reduced to writing. It is trite law that employers are to be held to the standard they have adopted.
43. In the absence of a reasonable justification to warrant the deviation, I find that the Respondent failed to discharge the onus on balance of probability that dismissal was procedurally fair. I am alive to the fact that the Applicant has over 20 years of service with a clean record, there was no indication that the Applicant has at any given time apologised to the people on whom he caused pain and suffering. However, he apologised vehemently during the proceedings for his wrongdoing. Having considered the violence perpetrated against the learners, which has the elements of criminality, the use of inappropriate language directed at learners and insulative language directed at the HOD, Ms. Mthimkhulu, the effects of which is so dire and caused an irreparable damage to the employment relationship, I find the sanction imposed to dismiss appropriate. Consequently, the dismissal of the Applicant is found to be substantively fair and procedurally unfair.
44. The Applicant sought reinstatement as a relief. Section 193 (2) of the Labour Relations Act provides that where the Labour court or the arbitrator must require the employer to reinstate or re-employ the employee unless_
a) ………………………………….
b) ………………………………….
c) …………………………………..
d) the dismissal is unfair only because the employer did not follow a fair procedure.
45. Having considered the above, reinstatement is not appropriate. I therefore consider one (1) month salary to be just and equitable under the circumstances. I order as follows:
AWARD
46. The Respondent, Department of Education (Gauteng), is ordered to compensate the Applicant, Fanyana Mabasa, with an amount of R 22 136-50, being one month’s salary.
47. The above noted amount is payable on or before 15 January 2022 into the Applicant’s bank account, failing which the Applicant can approach the CCMA to invoke the provisions of S143 of the Act to seek compliance with this award.
Thus done and signed in Johannesburg on 01 December 2021
ELRC Panellist
Evah T. Ngobeni
Case No: ELRC588-19/20GP
Date of Award: 01 December 2021
In the Dispute between:
Fanyana Mabasa
(Applicant)
And
Department of Education (Gauteng)
(Respondent)
Applicant’s representative: J. Roets (Attorney)
E-mail:
Fax:
Contact number:
Respondent’s representative: Ndhlovu V (Employee)
E-mail:
Fax:
Contact number:
DETAILS OF HEARING AND REPRESENTATION
1. This matter was scheduled for arbitration on 17 January 2020, 17 November 2020, 01 February, 02 February, 31 March, 10 September and 04 November 2021 at Department of Education offices (Gauteng).
2. Both parties were in attendance and representation from all parties is as indicated above. The Respondent submitted a bundle of documents marked bundle “R”. The Applicant submitted a bundle of documents marked bundle “A”. Parties agreed to submit written closing arguments by no later than 12 November 2021.
BACKGROUND OF THE DISPUTE
3. The Applicant was employed with the Department of Education as an educator, post level 1 effective 23 January 1995. The Applicant earned R22 136-50 per month. The Applicant was charged on allegations of misconduct related to:
a) item 18 (1) (q) of the employment of Educators Act in that on or around 01 February 2017, he conducted himself in an improper, disgraceful, and unacceptable manner in that he insulted Ms. M P Mthimkhulu, the Head of Department (HOD) from the same school by saying “voetsek nondidwa” (meaning bitch).
b) item 18(1)(r) of the Employment of Educators Act in that on or about 23 February 2017, he committed an act of misconduct in that he assaulted Siyabonga Makhanya and Tokollo Mokate, Grade 7B boy learners by hitting them with a red pipe on the back.
c) Item 18(1)(q) of the Employment of Educators Act in that on or about 23 February 2017 he conducted himself in an improper, disgraceful, and unacceptable manner in that he uttered inappropriate words to Siyabonga Makhanya and Tokollo Mokate, Grade 7B learners by calling them by their private parts such as (testicles, penis and pubic hair).
4. The Applicant was informed of the charges on 16 August 2017. The disciplinary enquiry was finalized on 19 October 2017, with the outcome communicated to the Applicant on 13 February 2018. Subsequent to his dismissal, the Applicant filed an appeal with the Respondent on 13 February 2018. The outcome of the appeal was communicated to the Applicant on 30 August 2019. The Applicant was dismissed and filed a referral to conciliation. The matter remained unresolved at conciliation hence these proceedings. The applicant sought retrospective reinstatement as a relief.
ISSUE FOR DETERMINATION
5. I must determine whether the applicant’s dismissal is substantively and procedurally unfair. Parties agreed on pre-arb and the following issues are to be determined:
a) whether the Respondent failed to hold an investigatory enquiry prior to the disciplinary enquiry being instituted;
b) whether the Respondent delayed the institution of a disciplinary process;
c) whether the Respondent failed to comply with its own disciplinary code:
I) to hold a disciplinary enquiry within 10 days after the Applicant was given notice of the disciplinary enquiry;
II) to issue written notice of disciplinary enquiry which contained date, time and venue of the hearing;
III) to conclude the matter in the shortest period;
IV) to provide the Applicant with written reasons for the decision taken;
V) after transferring the Applicant, a disciplinary enquiry to be held within a month;
VI) failure to comply with a postponement and adhering to the 90 days period of a postponement;
VII) to provide reasons for the delay in finalising the matter;
VIII) applicant was not afforded an opportunity to mitigate;
IX) to issue the outcome within five (5) working days after conclusion of the disciplinary enquiry.
d) the Applicant’s clean record was not taken into account;
e) the Applicant’s personal circumstances were not taken into account;
f) the Applicant’s length of service was not considered;
g) the rule or standard contravened was not fair and reasonable;
h) the Applicant was not informed of the rule prior to the alleged contravention; and
i) the sanction was too harsh.
6. If the dismissal is found to be unfair, I must determine whether retrospective reinstatement is the appropriate remedy.
SURVEY OF EVIDENCE AND ARGUMENTS
A summary of the respondent’s evidence is as follows – only salient points are outlined:
Dr Sbongile Mkhombo testified as follows:
7. She is employed with the department as a Senior Education Specialist for Nguni Languages which includes Isizulu, IsiXhosa, Venda and Tsonga. She has a Phd, majoring in African Languages with UNISA. Her native language is IsiZulu. She stated that the word “nondidwa” means bitch, harlot, or prostitute. A woman referred to as such is a person who sleeps around. The word is an insult and offensive as it shows disrespect to another being. It is inappropriate for a male educator to call a colleague with such word.
8. On charge three (3), the use of the word “amasende” directed at learners is inhumane, disgraceful, and derogatory. The words such as those cannot be uttered in public. Under cross-examination she stated that she was not present when the words were uttered. She stated that regardless of the context in which the words were uttered, she does not think it was proper of an educator to use the language. More so, he is an adult and a native speaker, the use of such language in culture is an insult. She argued that if the words were not insulting, the learners could not have reported the incident.
9. She argued that the context within which the words were used, denotes an insult. When a version was put to her that the use of the words (penis, testicles and pubic hair) in class was not derogatory as it was during a life skills class; she argued that the tone changes the meaning of the word uttered.
Portia Mthimkhulu testified as follows:
10. She is employed at Kutloanong Primary School as a Head of Department for English, Sotho, Life Skills and Life Orientation. The Applicant sought permission to go to Khayelihle to collect his payslip. He was granted permission, but he delayed, and learners started flocking into his class. She met him at the passage and asked him on who was to look after his class and his response was “voetsek nondidwa”.
11. The word “voetsek” is uttered when one is annoyed with another person. She speaks Sotho but the word “nondidwa” implies “sifebe” which is derogatory. None of the teachers were around but security personnel may have heard the utterance. The Applicant’s tone was harsh, and his facial expression confirmed that he meant what he was saying. The word can also not be used on a prostitute because it is heavy and derogatory. It belittles a person when so interpreted. One may not even say “voetsek” to a child as it personifies a dog. The English version of bitch is lighter compared to the meaning attributed to the word in an African language or context.
12. Under cross-examination she argued that from date of the incident, she had not been in speaking terms with the Applicant. She would greet and he remained quiet. He never apologized for the insult. She corrected the date of the incident to 01 February 2021. She is not fluent in IsiZulu but understands the word “nondidwa” to mean someone who sleeps around. According to the dictionary, she stated that the Applicant perceives her as a female dog. The female security officer on duty heard the argument between herself and the Applicant. She reported the incident to Mr. Twala (the principal) the following day. Page 36 of R is an intention to institute disciplinary proceedings against the Applicant. The document is dated 06 March 2017.
13. The Applicant was suspended in June 2017. She argued that this did not mean that she had no problem working with the Applicant, she kept up with him because he was contracted by the Department. She reported the incident to the principal and had informed him (principal) that she no longer wanted to issue instructions to the Applicant because he was defiant. The relationship was strained. She was forced to communicate with him because of work. There was no other incident after his suspension.
Moses Twala testified as follows:
14. He is employed as a principal of the school with the Department. The Applicant was his subordinate and he was transferred to his school from Khayelihle. The Applicant taught Mathematics and Life Orientation. Life skills entails how kids are to interact with life, their physique and exercising. It does not include the anatomy of a male body. Ms. Mthimkhulu reported the incident where she was insulted by the Applicant who called her a “nondidwa”. She was very angry, shaken and shed a tear as she related the story. The incident happened on 31st of January 2017, and he wrote a letter to the district on 01st of February 2017.
15. Following his escalation of the matter to the district, there were other incidents involving abuse to learners. He does not have the powers to transfer an educator after an offence is committed, the issues get escalated to the district and the department attending to employment law. The relationship was strained hence he requested that the Applicant be transferred from the school. After term one (1) schedule, the Applicant failed to comply with the submissions. When asking Ms. Mthimkhulu, she stated that the Applicant failed to submit documents. He engaged the Applicant with the view that the situation will improve. Around May, he wrote a letter to the department dealing with employment and requested for the Applicant to be transferred.
16. Ms Mthimkhulu was afraid to confront the educator on work related issues for of being insulted. The relationship worsened between Ms Mthimkhulu and the Applicant. The incident pertaining to charge two (2) occurred during a grade 7 class. In mathematics, there is nowhere an educator talks of human anatomy. The guardian articulated the insults in vernacular. Some words when stated in a text, gives meaning. The manner in which the words were uttered, was an insult. The incident happened on 23 January 2017 other than 23 February 2017. He attended the disciplinary enquiry with both learners as witnesses. He was informed that there was no need for him and the learners to lead evidence because the Applicant pleaded guilty.
17. A code of conduct is displayed on the wall, which requires an educator to act in a professional manner and promote a good working relationship. During staff meetings, teachers get reminded that it is illegal to use corporal punishment on learners. He went around to remove all pipes and threw them away. The Applicant was aware of all policies pertaining to corporal punishment and attended training on the policies. When dealing with misconduct, an escalation is sent through a referral to integrated District Support Official (herein referred to as “IDSO”), who then sends the document to a department dealing with employment related matters. He had a good working relationship with the Applicant, and they hanged out together when the Applicant was a member of the SGB.
18. Under cross-examination he disputed the version that words directed at learners were uttered in English. He heard from the parent that the words were uttered in IsiZulu. He does not recall the reason for which the incident was not reported timeously. The learners continued being taught by the Applicant. He stated that he had hoped that the Applicant would repent. It did not occur to him to remove learners from the Applicant’s class. When a version was put to him that there was a security guard that walked into class and hit all learners; his response was that the guard’s employment was terminated. He conceded that the Applicant’s suspension was affected on 10 August 2017.
19. The Applicant was removed from the school, seven (7) months after his commission of offence because he had escalated the matter to the relevant structures. He could not remove the Applicant to report to another HOD because this could have messed up the structure. The Applicant was law unto himself. The office dealing with employment issues was aware of the incidents because he communicated with them on a regular basis. The seriousness of the matter and the manner in which the assault was conducted left bruises on the back and hand of learners. He did not think of removing the pipe from the Applicant’s classroom.
20. He argued that the one (1) learner was hit on the arm and the other on his back. When a version was put to him that kids were banging chairs and desks hence the Applicant disciplined them; his response was that the Applicant stood outside during his period and neglected learners. He escalated the issue because it was out of his control. It was not the first time for the Applicant to be transferred. It is immaterial whether the Applicant used a white or red pipe, corporal punishment is abolished and against the law. The Applicant was the one removed from class other than learners because the learners get angry and scared of an educator.
Siyabonga Makhanya testified as follows:
21. He is currently in grade 11. He was taught Mathematics by the Applicant in grade 7. The incident happened two (2) weeks after they opened schools into the new year. There were learners murmuring in class during the Applicant’s period. He enquired with the class on who was murmuring, and they pointed at him and Tokollo. He could not recall whether the pipe used was red or white. He was not hit on the palm of his hand but on the arm and back. The pipe was long and could not have been shorter than 20cm. The Applicant tended to call them dogs and also referred to “testicles”, “pubic hair’ and “penis”. He would utter these words during class.
22. Under cross-examination he stated that the incident happened in January 2017. It was not him murmuring but Karabo and his friends. He disputed the version that learners were banging desks. He argued that the noise which the Applicant questioned them about was the murmuring. He further argued that the Applicant uttered the words in IsiZulu referring to “m…nde”, “ma…shi”, “ mpi..i. He disputed the version that the Applicant informed them that now that they think they have fully developed private parts, then they are grown. He testified that the Applicant uttered the words whilst insulting them. The educator acted inappropriately because the words were insulting and not uttered during a life orientation class.
23. He was hit three (3) times on the back and once on the arm. He developed a welt and the principal saw him 20 minutes before end of school. He did not report the matter immediately because he attended his computer class. He went with Tokollo to the principal’s office. There were two (2) welts which developed on Tokollo who was hit five (5) times on the back and arm. He informed his grandmother about the incident and two (2) days later she approached the principal. He attended the Applicant’s classes until his departure in August. He disputed the version that the Applicant followed them to the principal’s office and apologized. He was afraid of the Applicant but could not inform his granny. He wrote a statement with Tokollo which they gave to the principal. He did not bleed and had no open wound. His granny went to the school twice, even during parents meeting day.
Karabo Tokollo Mokate testified as follows:
24. He is currently a grade 10 learner. There was a disturbance in class and the Applicant chose the two (2) of them. He assaulted them on their backs. The pipe left marks and a friend of his took pictures. Siyabonga enquired with the Applicant on why he was hitting them, the Applicant physically lifted Siyabonga and threw him out of the classroom. The door was left open after the Applicant had thrown Siyabonga outside. The extent of the pipe was similar to a ruler. He stated that he has never seen a white pipe. After throwing Siyabonga outside, the Applicant returned to class and stated that they think that they are adults.
25. He stated that the Applicant taught Mathematics. Under cross-examination, he stated that the Applicant spoke in IsiZulu. He was hit on the back and the upper part. He showed the marks to his family, and they took pictures to show to the principal. The phone he used to take pictures was damaged. He could not recall whether he showed the principal the marks. He did not attend the disciplinary enquiry. He argued that the whole class was chatting, and the Applicant chose the two (2) of them. He argued that the Applicant did not teach them life skills but were taught by male educator Nkosi. The Applicant usually insults them. He was not taken out of class because he kept quiet and looked at the Applicant.
26. Siyabonga was the one who responded. The Applicant was dismissed because he was not at the school the whole year. He argued that the Applicant uttered the words in Isizulu then changed to English. The Applicant never tendered an apology. He conceded that the pipe was inside the cupboard. He conceded that the class was making noise, but he was hit on the back and arm. He argued that he was having a conversation. He did not report the incident at the office but did so at home and then to the principal’s office. He does not recall the actual date he reported to the principal. He disputed the version that after he was hit, he reported the incident to the principal and the Applicant followed him through.
The applicant testified under oath – only salient points are mentioned:
27. An outcome leading to his dismissal is dated 08 August 2019 and was issued to him on 30 August 2019. He signed for his charges on 16 August 2017. On 13 February 2018, he was issued with an outcome of the disciplinary enquiry. The disciplinary enquiry took a year to finalize. The outcome of the appeal was issued to him after almost two (2) years. He was not issued with a reasons for his dismissal. Although the outcome of the appeal should have been issued to him within five (5) days, it was issued outside the required time period. He does not recall whether he was informed in writing of the venue and date of the disciplinary enquiry.
28. He was informed by the representative that he should attend the disciplinary enquiry. He was transferred on 10 August and his disciplinary enquiry should have been finalized within a month. It took the Respondent five (5) months to finalize his disciplinary enquiry. He was not requested to have the matter postponed as a result of non-compliance with the Act. The disciplinary enquiry was not concluded within 10 days of receiving notice. His notice was issued on 16 August 2017 and concluded in October 2017. He was not afforded an opportunity to mitigate. Ms. Mthimkhulu and learners were not called as witnesses during a disciplinary enquiry.
29. He conceded that he insulted Ms. Mthimkhulu and pleaded guilty at the disciplinary enquiry. He was not asked to explain on why he was pleading guilty. He did not mean to call Ms. Mthimkhulu with the name. He uttered the word in anger because she kept on changing her version. There were no witnesses to the insults. He conceded that the word “nondidwa” means bitch. His utterance of the words did not affect his relationship with Ms. Mthinkhulu. He was not placed to report under another person. On charge 2, he testified that the two (2) learners misbehaved during life skills period. He was angry because they were disturbing his class.
30. He opened the cupboard, removed the white pipe and hit them on their palms. His intention was to discipline the kids. The boys were mischievous and had to ensure that they sit in front of the classroom. He never chased them out of the classroom. After the incident, the one child went to the principal’s office, and he followed him. He explained the situation to the principal and went back to his classroom to continue with his session. He continued teaching the learners after the incident, and they passed at the end of the year. He taught them Maths and life skills. On charge 3, he confirmed that the incident happened.
31. He stated that he informed that now that they had grown bigger and developed, they think they can match with him. He uttered the words in English and IsiZulu. The school is Sotho speaking. He hit the learners two to three times and he is aware that this was wrong, but he did so out of anger. He is apologizing to the learners and to the department. He was not informed that parents of those learners approached the principal. The principal took the pipe after the incident. He never got along with the principal and did not know that the principal was building a case against him. There is a time lapse between the first and second incident.
32. He is currently unemployed because he did not try to find employment. His means of survival is from selling houses where he is a commission earner. Under cross-examination he conceded that he was Zulu speaking. He was informed of the date and venue of the hearing. He signed a document as per page 34 of R on 16 August 2017, requiring him to attend a pre-hearing meeting scheduled for 22 August 2017. On the same date, he acknowledged receipt of a notice to attend a disciplinary enquiry setting out the charges against him. He argued that he was not aware that there was no need for the department to issue him with a date and venue of the actual hearing because they wanted this to be a mutual hearing.
33. He argued to have not been a member of the SGB and that was he only affiliated to SADTU but not a representative. He received notice of intention to institute disciplinary enquiry against him on 6 March 2017. He wrote page 37 of R as a complaint against his principal not as a response to the intention to institute discipline against him. He argued that he misplaced the allegations referenced on a letter as per page 37 of R. He was evasive when asked whether he uttered the word “voetsek” in a jovial state. He argued to have apologized to Ms. Mthimkhulu and she understood. He was so angry and uttered the words out of anger. He could not respond when asked whether the word is offensive.
34. When asked whether he agreed with Dr Mkhombo that the “nondidwa” implies a harlot, bitch, or prostitute; his response was that he never understood the actual meaning of the word. He does not deny what he said. When a version was put to him that the words uttered are offensive, degrading and an insult to a female; his response was that that was the reason he apologized. He argued that there was no bad blood between himself and Ms. Mthimkhulu. He did not think of approaching the principal with his challenge. He is aware that corporal punishment was banished by an Act of parliament.
35. He argued that he made a mistake to use a pipe to hit learners. He kept the pipe in his cupboard because there were people who were maintaining electricity in classrooms. He meant to scare the workers because he was angry. He conceded that the constitution of SACE regulates his appointment and conduct directed at learners, colleagues, and members of the public. He never thought the use of insulting language would be an issue. He mentioned a spade, a spade and never thought it would be offensive to kids.
ANALYSIS OF EVIDENCE AND ARGUMENT
36. Section 192 (1) of the Labour Relations Act stipulates that “In any proceedings concerning a dismissal, the employee must establish the existence of the dismissal”. Dismissal is not in dispute. Therefore, the onus to prove the fairness of the dismissal rests with the respondent. In doing so, Section 188 (1) of the Act requires the employer to prove:
(i) that the employee was dismissed for a fair reason relating to the employee’s conduct or capacity; or based on the employer’s operational requirement, and
(ii) that the employee’s dismissal was done in accordance with a fair procedure.
37. It is common cause that the Applicant uttered the word “voetsek nondidwa” to Ms. Mthimkhulu, an HOD at the school. The Applicant did not dispute the version that he hit the two (2) learners Tokollo Mokate and Siyabonga Makhanya with a pipe. Instead, the Applicant argued that he hit them with a white pipe other than a white pipe. Moreover, he argued that he did not hit them on the back and arm as alleged but on the palm of their hands. The Applicant further conceded that he uttered the words relating to the male body anatomy to the learners. He argued to have uttered the words in English, during a life skills class. What is apparent from the Applicant’s evidence is that he stated the words out of anger, with vengeance to learners who, according to him were making noise during class. It is improbable that such utterance was meant to advance the learnings relating to a life skills class.
38. Section 10 of the Schools Act prohibits corporal punishment in schools, and states that:
1) no person may administer corporal punishment at a school to a learner.
2) any person who contravenes subsection (1) is guilty of an offence, and liable on a conviction to a sentence which could be imposed for assault.
39. The Applicant conceded that he was aware of a law which banished the use of corporal punishment at schools. The rule against corporal punishment is entrenched in the constitution in terms of section 28 (1) (d) which is meant to protect children against maltreatment, neglect, abuse, or degradation. Much as the department did not take action against the educator immediately after the incident, by either removing the educator from the pupil’s class, the effect of his conduct can never be underestimated as it impairs on human dignity and the right to have such dignity protected. The witness, Tokollo Mokate testified that he feared the Applicant although he continued teaching him until August of 2017.
40. A rule banishing corporal punishment is a valid and reasonable rule as it protects the interest of a child not to be treated or punished in a cruel, inhuman, or degrading manner. It is immaterial on which body part they were hit and whether the pipe was white or red. The Applicant was in contravention of the rule governing conduct in the workplace. When one looks at the totality of the charges levelled against the Applicant, of which, all three are admitted, they border on the element of intimidation and harassment which is discriminatory in nature.
41. Further to this, the impact of which is that of degradation and humiliation. This is impermissible in the society in which we live in especially from a person who is required in terms of the code of conduct of SACE, to conduct himself in professional manner when dealing with learners, colleagues, and the public. On procedure, it is evidence that the Applicant committed the offence on or around January / February 2017. In March 2017, he was required to write to the Respondent on why there should be no disciplinary action taken against him for insulting Ms Mthimunye. It took the Respondent considerable time before charges could be levelled against the Applicant.
42. There is no reasonable explanation on what caused the delay, save to state that discipline lies with the district office after escalation from the school. In addition, and after the transfer, there is a requirement that discipline should be effected within a period of ninety (90) days and in the event of a postponement, such should be communicated to the Applicant. I must admit that the Applicant was duly informed of the venue and time of the disciplinary enquiry, although such was not reduced to writing. It is trite law that employers are to be held to the standard they have adopted.
43. In the absence of a reasonable justification to warrant the deviation, I find that the Respondent failed to discharge the onus on balance of probability that dismissal was procedurally fair. I am alive to the fact that the Applicant has over 20 years of service with a clean record, there was no indication that the Applicant has at any given time apologised to the people on whom he caused pain and suffering. However, he apologised vehemently during the proceedings for his wrongdoing. Having considered the violence perpetrated against the learners, which has the elements of criminality, the use of inappropriate language directed at learners and insulative language directed at the HOD, Ms. Mthimkhulu, the effects of which is so dire and caused an irreparable damage to the employment relationship, I find the sanction imposed to dismiss appropriate. Consequently, the dismissal of the Applicant is found to be substantively fair and procedurally unfair.
44. The Applicant sought reinstatement as a relief. Section 193 (2) of the Labour Relations Act provides that where the Labour court or the arbitrator must require the employer to reinstate or re-employ the employee unless_
a) ………………………………….
b) ………………………………….
c) …………………………………..
d) the dismissal is unfair only because the employer did not follow a fair procedure.
45. Having considered the above, reinstatement is not appropriate. I therefore consider one (1) month salary to be just and equitable under the circumstances. I order as follows:
AWARD
46. The Respondent, Department of Education (Gauteng), is ordered to compensate the Applicant, Fanyana Mabasa, with an amount of R 22 136-50, being one month’s salary.
47. The above noted amount is payable on or before 15 January 2022 into the Applicant’s bank account, failing which the Applicant can approach the CCMA to invoke the provisions of S143 of the Act to seek compliance with this award.
Thus done and signed in Johannesburg on 01 December 2021
ELRC Panellist
Evah T. Ngobeni