ELRC644-20/21 EC
Text
ELRC660-20/21WC
Award Date:
19 January 2022
Commissioner: Jacques Buitendag
Case No.: ELRC660-20/21WC
Date of Award: 19 January 2022
In the Arbitration between:
MICHAEL KOOPMAN
(Union/Applicant)
and
DEPARTMENT OF EDUCATION – WESTERN CAPE
(Respondent)
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The arbitration hearing under the auspices of the Education Labour Relations Council (ELRC) took place on 14 July-, 30-31 August-, 8 October-, 25 November-, and 2 December 2021.
2. The applicant, Mr. M Koopman was represented by Mr. C Hendricks of MMH Inc. Mr. M Muller represented the respondent, the Department of Education – Western Cape. The proceedings were digitally recorded.
3. At the conclusion of the arbitration the parties agreed to submit written heads of argument. The respondent filed its arguments on 10 December 2021. The applicant’s arguments were filed on 13 December 2021. I requested a short extension from the bargaining council to submit the award.
THE ISSUE IN DISPUTE
4. I must determine whether or not the respondent fairly dismissed the applicant. If the dismissal was unfair, I must determine the appropriate relief.
BACKGROUND TO THE ISSUE
5. The applicant commenced him employment as an educator on 1 January 1986. He was appointed as the Principal of Bellville Technical High School (BTHS) on 1 May 2014.
6. On or about 10 March 2020 the respondent charged the applicant with the following 5 allegations of misconduct.
“Charge 1 It is alleged that you are guilty of misconduct in terms of Section 17(1)(b) of the Employment of Educators Act, no 76 of 1998 (hereinafter referred to as the Act), in that on or about 20 July 2018, you sexually assaulted Mrs. N du Plessis by pulling her from behind towards you and/or pressing your penis against her buttocks.
Alternative to Charge 1 “It is alleged that you are guilty of misconduct in terms of Section 18(1)(q) of the Act, in that on or about 20 July 2018, while on duty, you conducted himself in an improper, disgraceful or unacceptable manner towards Mrs N du Plessis by pulling her from behind towards you and pressing his penis against her buttocks.
Charge 2. It is alleged that you are guilty of misconduct in terms of Section 18(1)(q) of the Act, in that during the period May to September 2018, while on duty, you conducted yourself in an improper, disgraceful, or unacceptable manner towards Mrs du Plessis by i) Asking her to come and sit on your lap; and/or ii) Putting your foot on her back and pushing her down.
Charge 3 It is alleged that you are guilty of misconduct in terms of Section 17(1)(b) of the Act, in that on or about 9 June 2017 you sexually assaulted Mrs. T Joubert by hugging her from behind and touching/rubbing her breasts.
Alternative to Charge 3 “It is alleged that you are guilty of misconduct in terms of Section 18(1)(q) of the Act, in that on or about 9 June 2017, while on duty, you conducted himself in an improper, disgraceful or unacceptable manner towards Mrs. T Joubert by hugging her from behind and touching/rubbing her breasts.
Charge 4: It is alleged that you are guilty of misconduct in terms of Section 17(1)(b) of the Act, in that on or about 9 June 2017 you sexually assaulted Mrs. T Joubert by kissing her on her breasts.
Alternative to Charge 4 “It is alleged that you are guilty of misconduct in terms of Section 18(1)(q) of the Act, in that on or about 9 June 2017, while on duty, you conducted himself in an improper, disgraceful or unacceptable manner towards Mrs T Joubert by sexually harassing her, by kissing her breasts.
Charge 5 “It is alleged that you are guilty of misconduct in terms of Section 18(1)(p) of the Act, in that during the period 2018 and 2019, while on duty, he was under the influence of alcohol.”
7. The chairperson dismissed charges 1, 3 and 4 against the applicant because he found the charges “procedurally unfair, inconsistent and unjust under Section 17(1)(b) of the Act”. He did so without hearing the merits of Mrs. Joubert’s complaints.
8. The chairperson found the applicant guilty of conducting himself in an improper, disgraceful, or unacceptable manner towards du Plessis during May to September 2018 by “i) …asking her to come and sit on your lap; and/or ii) putting you foot on her back and pushing her down” and decided that a fine of R15000.00 for each of these instances is appropriate.
9. On the alternative charge 1 and on charge 5 the chairperson found the applicant guilty and decided that dismissal is the appropriate sanction. The applicant lodged an appeal with the Minister of Education – Western Cape. On 29 January 2021 the Minister dismissed the applicant’s appeal. The applicant earned R52 262.94 at the time of his dismissal.
10. The applicant claims that the dismissal on the alternative charge 1 and charge 5 was procedurally and substantively unfair and he seeks retrospective reinstatement as primary relief. The respondent claims that the applicant’s dismissal was fair.
SUMMARY OF EVIDENCE AND ARGUMENT
11. I have considered all the evidence and argument presented in this arbitration, but because section 138(7) of the Labour Relations Act, 66 of 1995 (LRA) requires an award to be issued with brief reasons for the findings, I shall only refer to the evidence that I regard as necessary to substantiate my findings in the determination of the dispute.
The respondent’s case
12. Mr. J P van Tonder testified under oath. He chaired the internal disciplinary hearing. Van Tonder referred to his report of the disciplinary hearing and testified that he dealt with the procedural challenges raised by the applicant. He calculated the delay between the date on which the Du Plessis complaint was registered with the department and the notification to attend the disciplinary hearing to have been 92 days. He did not find the delay excessive.
13. Van Tonder agreed under cross-examination that he is aware of the rules against self-corroboration. He considered Du Plessis’s evidence presented during the disciplinary hearing to have been paramount. But he also considered her affidavit dated 29 January 2020 and compared it with her testimony during the disciplinary hearing. He found no contradictions between her testimony and her affidavit.
14. Mrs. N Du Plessis testified under oath. She started at the BTHS in November 2017 on a two-year fixed term contract. She was appointed by the School Governing Body (SGB) and worked as the applicant’s personal assistant. She resigned in May 2020.
15. About the July 2018 incident (alternative charge 1), Du Plessis testified that she attended a memorial service held in the school hall for an ex-leaner, Mr. Grootboom. Du Plessis said that she wore skinny jeans, a t-shirt, and flat shoes on this day. When the memorial service ended, she went to fetch the applicant from his office because the Grootboom family wanted to thank him for the use of the hall.
16. Arriving at the applicant’s office she knocked and entered. The applicant wore baggy jeans and a shirt. She wanted him to look more presentable and helped the applicant put on his jacket. She fixed his collar and walked in front of him towards her office. As she was about to step out of her office into the hallway, she felt the applicant pulling her back with both hands on her shoulders. She lost her balance and fell back with one foot in the air. She felt his erect penis pressing on her buttocks. Du Plessis said that the applicant held it there for a few seconds. When she asked the applicant what he was doing, he laughed.
17. Du Plessis proceeded to walk to the hall with the applicant following her. She felt embarrassed, hurt, and disgusted. She said nothing more to the applicant and left him in the hall.
18. Du Plessis testified that she went back to the finance office and called Ms. Thorne, a person whom she trusted. She told Thorne what happened and asked her not to tell anyone because she did not want to lose her job. Thorne said that she will come to the school the following week to speak to the applicant.
19. Du Plessis said that the applicant told her that his pervious personal assistant, Joubert, accused him of sexually assaulting her. Joubert lost her job. Du Plessis testified that the applicant would talk about sex and sexual acts. She would ask him not to talk about it.
20. About the incidents in May to September 2018 (charge 2), Du Plessis testified that she went to the applicant’s office and showed him an email on her laptop. The applicant said to her that she must come and sit on his lap. Du Plessis told him there is not enough space to sit. Du Plessis said that she felt embarrassed. She did not report it as she needed her job. She considered the applicant’s suggestion to have been sexual in nature and inappropriate. Du Plessis testified that one day in September 2018 she was on her knees looking for a flash drive that had fallen. The applicant came and put his foot on her back, and she could not get up. When she asked him what he was doing, the applicant just laughed. She felt embarrassed and degraded. She told the investigator, Scholtz, about the above incidents when he interviewed her (in December 2019).
21. About the allegation that the applicant was under the influence of alcohol during 2018 and 2019 (charge 5), Du Plessis testified that the applicant will at times not act normal. He would make silly jokes, have slurred speech, and would smell of alcohol. She told the applicant that he needed help. She reported it to Thorne, Kotze and Meyer (the SGB chairperson at the time). It was on or about 14 November 2019 that the applicant admitted to her that he had a drinking problem.
22. Du Plessis referred to an incident on or about 26 November 2019 when Meyer and Thorne came to visit the applicant. She testified that when they entered the applicant’s office he choked on a boiled egg. The applicant was crying. The applicant was so intoxicated he could not get out of his chair. Thorne asked her to call the applicant’s son to come and fetch him from school. Du Plessis took photos of the empty liquor bottle (Vodka bottle) found in the applicant’s office.
23. Du Plessis recalls an earlier incident on 23 October 2019 when she arrived at school at about 07h30 and saw the applicant’s car parked across two parking bays. When she entered the applicant’s office, she smelled alcohol, saw a broken glass, the bar fridge door open, and spilled liquor. She also found a bottle of VAT69 whiskey. Kotze and Meyer arrived and asked her to hide the bottle. Du Plessis said that Kotze was always protecting the applicant. Kotze is friends with the applicant’s wife. Kotze also asked her to delete the photos that she took of the empty liquor bottles.
24. Du Plessis testified that on 10 December 2019 she received four separate warning letters issued by the applicant, delivered to her house by a courier. She believes that the applicant issued the warning letters because she did not want to protect him, and that he wanted to build a case against her.
25. Du Plessis testified that she sought medical attention on 22 January 2020. She was treated by a psychologist and a psychiatrist. On 11 May 2020 she decided to resign. Du Plessis denied that she, Thorne, and Meyer conspired against the applicant. Du Plessis said that she has no job, had no income for a year and had nothing to gain from an alleged conspiracy.
26. Under cross examination the applicant confirmed that she reported the alleged incident of 20 July 2018 to Thorne on the day. Then about 2 months later she reported it to Meyer. Her next report was to Scholtz in December 2019.
27. Du Plessis was inter alia referred to:
A WhatsApp of 23 July 2018 in which the applicant informed Du Plessis that he is home. Du Plessis responded with “Awesome. No Problem, just ph me if you need anything”. She ended the message with a heart emoji.
A secretary day photo taken on 5 September 2018 where she, the applicant and 4 other staff members is sitting together at a restaurant.
A voice message of 16 September 2019 where she thanked the applicant for a juice and ended the message saying I love you Mr. Koopman.
A picture of a dress your door competition held on 7 August 2019.
A Whatsapp message of 20 August 2019 where she wrote “Always a pleasure Mr. Koopman, you are an amazing boss. Ended with heart emoji.
Du Plessis explained that she often ends her WhatsApp messages with a heart emoji and that she sent messages of encouragement to the applicant.
28. It was put to Du Plessis that the Vodka bottle she found in the applicant’s office was a bottle that was confiscated during a rugby tour in 2018. She said that Nel and not the applicant is responsible for discipline at the school. She denied that the photos of the liquor bottles were staged.
29. Du Plessis referred to a drawing of layout of the applicant’s office (Bundle B p135) and pointed out where the 20 July 2018 incident occurred. Du Plessis detailed where she and the applicant was when the incident occurred. It was put to the applicant that this was not the layout of the applicant’s office on 20 July 2018 and that the office layout was as is depicted on Bundle B p137. This office layout did not have a drywall dividing the applicant’s office in two (an office for the applicant and one for Du Plessis), and the layout of the applicant’s office itself was different. Du Plessis replied that Hendricks is trying to confuse her and that the incident happened a long time ago.
30. It was put to Du Plessis that the applicant is taller than she is and that the difference in length makes her version that he pressed his penis against her backside not possible. Du Plessis maintained that she felt the applicant’s erect penis pressing against her backside.
31. Mrs. M Thorne testified under oath. Thorne said that she was a member of the schools’ SGB from 2008-2015. At the time of the alleged incidents, she was co-opted by the SGB to assist with legal and disciplinary inquiries. She and Du Plessis are acquaintances.
32. On 20 July 2018 Du Plessis called her. She was crying. Du Plessis told her she was helping the applicant putting on his jacket when he pulled her towards him. The applicant was erect, and she did not know what to do. Thorne told Du Plessis that she needed to speak to Meyer, who was the SGB chairperson at the time. Du Plessis was afraid that she might lose her job and Thorne told her to remain calm.
33. Thorne said that she did not visit the school but contacted Meyer. She informed Meyer that it was not the first time such an incident came to her ears and that they must address it.
34. Thorne testified that the applicant’s previous personal assistant also laid a complaint against the applicant, which they dealt with informally. She later apologised to her. The applicant said that he will never do it again.
35. Thorne said that she spoke to Du Plessis about two weeks after the incident. Du Plessis told her about an incident where the applicant put his foot on her back and touched her hair. Du Plessis said that the applicant also once asked her to sit on his lap. Thorne said that a pupil also told her that the applicant asked her to sit on his lap.
36. About the allegation that the applicant was under the influence of alcohol at school during 2018-2019, Thorne testified that one day she and Meyer went to the applicant’s office. When they entered the office, the applicant stuffed a boiled egg in his mouth. He started to cry and laugh at the same time. The applicant was drunk and smelled of liquor. She referred to a photo of Vodka bottle that was found in the applicant’s office. The applicant’s wife was phoned because he was in no state to drive and the applicant’s son, Daryl, came to the school to fetch him.
37. Thorne testified that there are also allegations of financial mismanagement against the applicant.
38. Thorned denied that they are conspiring against the applicant as alleged.
39. Under cross examination Thorne testified that Meyer confirmed to her that Du Plessis contacted her about the 20 July 2018 incident and that she, Thorne, left it at that. Thorne denied that she said to Du Plessis that she will speak to Koopman about the incident.
40. Thorne maintained that the applicant was under the influence on the day when the applicant choked on an egg.
41. It was put to Thorne that she and Meyer was responsible for unlawful expenses and that because of their conduct Darries (an SGB appointee) received a financial settlement. It was also put to Thorne that they orchestrated an extension of Du Plessis contract and a salary increase without the input of the applicant. Thorne denied these allegations.
42. Mr. J Nel testified under oath. He is the current Acting Principal. Nel explained that he is responsible for leaner discipline. Confiscated liquor is kept in his office as evidence. He said that there will be record of all confiscated items. Nel is not aware of liquor bottles stored in the applicant’s office and he cannot recall that the applicant brought an incident to his attention where he confiscated alcohol.
43. He recalled an incident where the applicant came into the exam hall and was acting inappropriately and caused a disturbance. He said the applicant was intoxicated but he does not know if it was from alcohol or medication. He told the applicant on this day that he does not have to attend the evening’s disciplinary meeting.
44. Nel said that during November 2019 Botes (the Circuit Manager at the time) came to speak to the School Management Team (SMT). The SMT was concerned about the applicant’s absence and suspected that he has a medical condition and needed counselling. SMT members were hinting that the applicant might have an alcohol problem. It came to light after this meeting that the applicant attend rehabilitation.
45. Under cross-examination Nel conceded that the applicant might have kept confiscated alcohol and other contrabands in his office. He reiterated that if that is the case there must be record of it.
46. Nel confirmed that the employment contracts for SGB appointments are signed by the SGB chairperson and principal. He confirmed that it is not standard practice for the SGB vice-chairperson to sign employment contracts.
The applicant’s case
47. Mr. M Koopman testified under oath. The applicant testified that he was involved in a motor collision on 14 July 2018 which cause him to walk with a limp. On 20 July 2018 he attended a SMT meeting. The Grootboom memorial service started at about 09h00. At about 10h30 Du Plessis came to his office, stood at the doorway, and told him Grootboom’s parents wanted to speak to him. He already had a blazer and jeans on. He followed Du Plessis to the hall where he offered his condolences to the Grootboom family. He left the school at about 11h00.
48. In as far as Du Plessis’s version is concerned, the applicant testified nothing happened between him and Du Plessis. Du Plessis did not correct his collar. Du Plessis lied about the layout of the office when she described the incident. He is using chronic medication to control high blood pressure since 2013 and experienced erectile dysfunction (ED). He is 1.76m tall and Du Plessis is about 1.55m and his penis could therefore not have touched Du Plessis buttocks.
49. About the allegation that the applicant was under the influence of alcohol at school during 2018-2019, the applicant testified that on 26 November 2018 Meyer and Thorne entered his office at about 14h45. He was eating a boiled egg and choked. He felt disorientated and his eyes were teary. His son was called to pick him up from school. The applicant denied that he was under the influence of alcohol on this day.
50. He said that Nel and Du Plessis have keys to his office and that he cannot comment on the photo of the Smirnoff Vodka bottle. The applicant testified that he confiscated contraband and sometimes liquor bottles are stored in his office.
51. The applicant testified that he left his laptop at the school on 22 October 2019. He was booked off sick until 25 October 2019. At about 02h30 in the morning of 23 October 2019 he went to school to collect his laptop. He did some work and fell asleep. Kotze found him asleep at his desk at about 06h30. He was tired and disorientated. Kotze took him home.
52. The applicant denied that he was under the influence when he visited the exam hall as testified by Nel.
53. The applicant testified that he drank a lot and was hopitalised from 9 December – 30 December 2019. He however denied that he consumed alcohol at school.
54. The applicant testified about tension between him and members of the SGB relating to alleged financial mismanagement; Darries’s salary; and a settlement agreement reached at the CCMA with Darries. He said that after a pre-budget meeting on 21 October 2019, he told Du Plessis not to allow Thorne into his office again. On 23 November 2019 Du Plessis came back from sick leave. He believed that Du Plessis leaked information to the SGB and issued her with warning letters on 10 December 2019.
55. The applicant referred to the amended employment contract of Du Plessis and said that it was not discussed with him. In January 2020 he asked Du Plessis to move to the finance offices because he did not trust her anymore with files and information. On 23 January 2020 Du Plessis took sick leave and never returned to the school. She resigned in May 2020.
56. Under cross-examination the applicant maintained that he is innocent of all the allegations levelled against him. Questioned about the layout of the office in July 2018 it was put to the applicant that regardless of the layout, Du Plessis was in his office on this day. The applicant agreed that Du Plessis was in his office. He maintained that Du Plessis did not correct his collar and denied the version of Du Plessis.
57. The applicant denied that he previously inappropriately hugged a Ms. Fernando.
58. It was put to the applicant that he did not refer to charge 2 in his evidence in chief. The applicant also denied this allegation that Du Plessis has levelled against him and on which he was found guilty off.
59. In as far as charge 5 is concerned, the applicant testified the liquor bottles was confiscated from leaners and left in his office for evidence purposes. He denied that the liquor bottles belonged to him.
60. The applicant agreed that he suspended Darries without discussing it with the SGB. He agreed that he issued the three warning letters to Du Plessis without following due process. He said that Du Plessis and Thorne has conspired against him.
61. Mr. R Botes testified under oath. He was the Circuit Manager and retired in September 2020. Botes testified that in October/November 2019 Meyer contacted him and told him that the school was in disarray. She listed three complaints, namely that the applicant is intoxicated; involved in financial mismanagement; and inappropriately touched a female learner. Meyer said that she did not have enough details about the 3rd allegation. Botes informed Meyer to submit the complaints in writing. He later received the written complaints about the applicant being under the influence of alcohol and of financial mismanagement. The complaints were investigated by head office. He asked Scholtz to be involved in the investigation but was never called to provide his inputs.
62. Botes referred to an SMT meeting held on 14 November 2019. Botes said that the SMT did not agree that the school was in disarray, and nobody made negative comments about the applicant in his presence.
63. Botes confirmed that a SGB meeting held on 14 November 2019 was not properly constituted because the SGB was not a quorum. He said that the way employment contracts of SGB appointed employees were extended and amended were not normal.
64. Botes’s view is that Thorne overstepped her bounds as a co-opted member of the SGB.
65. Ms. M Coetzee testified under oath. She is employed at the school since 2016. She recalls that 20 July 2018 was the Grootboom memorial at the school. She did not notice anything strange about Du Plessis on this day. She does not agree that the applicant was under the influence of alcohol most of the time.
Expert opinions of Dr Greybe and Dr Spies
66. Dr Greybe and Dr Spies provided written opinions and testified. Their opinions and testimony are on record, and I do not find it necessary to repeat it here in detail.
67. Dr Greybe’s opinion as the applicant’s medical practitioner is that given the applicant’s age, medical condition and being on a beta-blocker, Adco-Atenolol, that it is highly unlikely that the applicant could have achieved an erection on 20 July 2018.
68. Dr Spies, a Urologist, relied on clinical information provided and medical literature to support his opinion that erectile dysfunction caused by beta-blockers are significantly uncommon. In his view Dr Greybe’s conclusion of it being highly unlikely that the applicant could have achieved an erection on 20 July 2018 is a reach too far.
Closing arguments
69. The comprehensive heads of arguments of the parties are on record and I do not find it necessary to repeat it here in full. If I do not mention a particular argument it does not imply that it was not considered.
70. In short, Muller argued that the applicant’s testimony was unreliable, uncredible and untrustworthy. There were several occasions were his version even clashed with his own medical expert, Dr Greybe and the only inference that can be drawn is that Mr Koopman was dishonest or evasive. Save for again, relying on a bare denial, he maintained that the incident never happened. However, Du Plessis testimony was overwhelming descriptive, detailed, and accurate, save for the inconsistency relating to the layout of the applicant’s office. Dr Greybe’s evidence should be less weight in comparison to Dr Spies, as Dr Greybe confirmed that he is not a specialist. Furthermore, Dr Spies maintaining that incidents of erectile dysfunction are low for patients on the medication that was prescribed for the applicant. The applicant could not provide a plausible or reasonable explanation why alcohol bottles were discovered in his office. Du Plessis and Thorne both testify to Mr Koopman’s erratic behaviour and that he regularly smelled of alcohol
71. Muller argued that the respondent has proved its case against the applicant on a balance of probabilities. He referred to case law and argued that the sanction of dismissal was fair.
72. Hendricks referred to case law and argued that the dismissal was substantively and procedurally unfair. In as far as procedural unfairness is concerned, the chairperson of the internal disciplinary hearing failed to appreciate the significance and impact of the rule against self-corroboration when he considered and evaluated the evidence of Du Plessis as well as significant time-lapse between the alleged offences and the institution of the charges. The respondent has failed to present evidence on the procedural fairness of the dismissal despite it being recorded in the pre-arbitration minute.
73. About the substantive fairness of the dismissal Hendricks argued that the inherent probabilities favour the version proffered by the applicant. The applicant presented credible and undisputed evidence speaking to the good relationship that existed between himself and Du Plessis after the alleged incident of 20 July 2018. The WhatsApp messages and occurrences speaking to those messages spoke volumes. The testimony of Du Plessis is not credible in material respects. The version of Du Plessis of what occurred on 20 July 2018 is contradicted by Thorne in material respects. Thorne is the alleged first report. When the first report’s version is compared with that of Du Plessis it becomes apparent that the incident was contrived. Thorne provided no corroboration. In fact, Thorne exposed the falsehoods tendered by Du Plessis. The testimony of an every-day drunken headmaster was clearly dishonest. Nel, the respondent’s witness and current Acting Principal was given an opportunity to speak to any alleged occurrences of intoxication. He could only recall one unrelated incident and could not be definitive about the use of alcohol.
74. The applicant, through his medical practitioner, presented credible evidence of his ED. Moreover, the applicant’s version that he was much taller than Du Plessis and that it was not physically possible that his private parts touched that of Du Plessis, was not refuted.
75. There was an ulterior motive for Du Plessis and others in relation to the institution of both charges. In this regard applicant presented clear evidence of bad motives on the part of Du Plessis and the SGB. The SGB and Du Plessis became a law unto themselves. The SGB incurred financial expenses when the school could not afford it. The applicant challenged the decisions of the SGB. The applicant, inter-alia, called Thorne out in a SGB meeting, suspended Darries and subsequently issued Du Plessis with warning letters. This stance by applicant attracted resistance and ultimately the complaints lodged with the circuit manager.
ANALYSIS OF EVIDENCE AND ARGUMENTS
76. Section 192 of the LRA provides that the employee must establish the existence of a dismissal and if that has been established the employer bears the onus to prove on a balance of probabilities that the dismissal is fair. It is common cause that the respondent dismissed the applicant.
77. In deciding the substantive fairness of the applicant’s dismissal, I must consider Schedule 8, item 7 of the Code of Good Practice on Dismissal. In this regard the Code states that an arbitrator must consider:
“Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to the workplace; and if a rule or standard was contravened, whether or not
• the rule was a valid or reasonable rule or standard
• the employee was aware, or could reasonably be expected to have been aware, of the rule or standard
• the rule or standard has been consistently applied by the employer and
• dismissal was an appropriate sanction for the contravention of the rule or standard”
78. The applicant was found guilty and dismissed on two allegations of misconduct namely 1) that he contravened section 18(1)(q) of the Employment of Educators Act by conducting himself in an improper, disgraceful, or unacceptable manner towards Du Plessis by pulling her from behind towards him and pressing his penis against her buttocks, and 2) that he contravened section 18(1)(p) of the act during 2018 and 2019 by being under the influence of alcohol whilst on duty.
79. The applicant did not challenge the validity or reasonableness of the above-mentioned rules and it was not his case that he unaware of the rules or that the rules or standards have been inconsistently applied by the respondent.
80. I will first deal with the alternative charge 1.
81. I am mindful of the 1998 Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace and the subsequent 2005 Amended Code on the Handling of Sexual Harassment Cases in the Workplace (the Amended Code). I wish to refer to a few sections of the Amended Code. Item 4 of the Amended Code defines sexual harassment as follows: “Sexual harassment is unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace, taking into account all of the following factors: whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation; whether the sexual conduct was unwelcome; the nature and extent of the sexual conduct; and the impact of the sexual conduct on the employee."
82. What can be considers as unwelcome is considered in item 5.2 of the Amended Code. Item 5.2 stipulates that 1) There are different ways in which an employee may indicate that sexual conduct is unwelcome, including non-verbal conduct such as walking away or not responding to the perpetrator. 2) Previous consensual participation in sexual conduct does not necessarily mean that the conduct continues to be welcome. 3) Where a complainant has difficulty indicating to the perpetrator that the conduct is unwelcome, such complainant may seek the assistance and intervention of another person such as a co-worker, superior, counsellor, human resource official, family member or friend.
83. Whether the conduct amounts to sexual harassment, the Amended Code deals with it in item 5 as follows:
5.3.1 The unwelcome conduct must be of a sexual nature, and includes physical, verbal, or non-verbal conduct.
5.3.1.1 Physical conduct of a sexual nature includes all unwelcome physical contact, ranging from touching to sexual assault and rape, as well as strip search by or in the presence of the opposite sex.
5.3.1.2 Verbal conduct includes unwelcome innuendos, suggestions, hints, sexual advances, comments with sexual overtones, sex-related jokes or insults, graphic comments about a person’s body made in their presence or to them, inappropriate enquiries about a person’s sex life, whistling of a sexual nature and the sending by electronic means or otherwise of sexually explicit text.
5.3.1.3 Non-verbal conduct includes unwelcome gestures, indecent exposure and the display or sending by electronic means or otherwise of sexually explicit pictures or objects.
5.2.2 Sexual harassment may include, but is not limited to, victimization, quid pro quo harassment and sexual favouritism.
5.2.2.1 Victimization occurs where an employee is victimized or intimidated for failing to submit to sexual advances.
5.2.2.2 Quid pro quo harassment occurs where a person such as an owner, employer, supervisor, member of management or co-employee, influences or attempts to influence an employee’s employment circumstances (for example engagement, promotion, training, discipline, dismissal, salary increments or other benefits) by coercing or attempting to coerce an employee to surrender to sexual advances. This could include sexual favouritism, which occurs where a person in authority in the workplace rewards only those who respond to his or her sexual advances.
5.2.2.3 A single incident of unwelcome sexual conduct may constitute sexual harassment.
84. Sexual harassment has been characterised by our courts as 'the most heinous misconduct that plagues a workplace” (Campbell Scientific Africa (Pty) Ltd v Simmers and Others (2016) 37 ILJ 116 (LAC)).
85. If an employee, without consent, pulls another employee towards him and deliberately presses his penis against her buttocks, I would have little hesitation to find that such conduct amounts to sexual harassment and deserving of dismissal.
86. In casu the applicant denies the allegation. When an employee denies the allegation(s) against him of her, the onus is on the employer to prove the allegation on a balance of probability. In WESUSA & Others vs Jacobz 2000 8 BLLR 977 (LC), the Court remarked that “the onus will be discharged if the respondent can show credible evidence that its version is the more probable and acceptable version. The credibility and the improbability of what they say should not be regarded as a separate enquiry to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the respondents version, an investigation where the questions of demeanour and impression are measured against the content of a witness’s evidence, where the importance of any discrepancies and contradiction is assessed and where a particular story is tested against the facts which cannot be disputed and against the inherent probabilities, so that a the end of the day one can say with conviction that one version is false and be rejected with safety”.
87. The respondent thus carries the responsibility to ensure that it present sufficient evidence during this de novo arbitration proceedings to prove the allegations and fairness of the dismissal. The onus will not be discharged by raising mere suspicions of misconduct.
88. Two conflicting versions of what has transpired in the applicant’s office on 20 July 2018 was presented during this arbitration. The piece of the puzzle to untangle is whether the applicant, on the balance of probabilities, did indeed pull Du Plessis towards him and pressed his penis against her buttocks on the day on question. In Department of Health KZN v PSA and others (DA 4/15) (2018) 39 ILJ 1719 (LAC) (handed down on 20 March 2018) the Commissioner was also faced with two conflicting versions. The Court held that the determination of such disputes needs an assessment of the credibility of evidence and the decision arrived at on a balance of probabilities.
89. I wish to first refer to three issues. Firstly, I am not persuaded that Du Plessis, Thorne, and any other person are conspiring against the applicant. Secondly, based the applicant’s clinical information, the chronic medication that the applicant is using, and the medical literature referred to by Dr Spies showing that erectile dysfunction caused by beta-blockers are significantly uncommon, I prefer Dr Spies’ conclusion that Dr Greybe’s view of it being highly unlikely that the applicant could not have achieved an erection on 20 July 2018 to be a reach too far. Thirdly, I find the contention that it was impossible for the applicant’s penis to have touched Du Plessis’s buttocks because of the difference in hight not probable. A mere bending in the knees of the applicant, or Du Plessis not standing fully upright could have resulted in the applicant’s scrotum being level with Du Plessis’s buttocks.
90. The applicant case is simply that he did not pull Du Plessis towards him and did not press his penis against her buttocks on 20 July 2018 when she visited the applicant in his office to inform him that his presence is required in the hall by the Grootboom family. The applicant’s version offers little more than a mere denial. But a positive allegation is not necessarily more truthful that a mere denial of the allegation.
91. Du Plessis, in her evidence in chief testified confidently as to what transpired in the applicant’s office on this day. She explained what she was wearing and what the applicant was wearing. She testified that she helped the applicant put on his jacket and fixed his collar. Du Plessis explained that when she stepped out of her office into the passage that the applicant pulled her back and she describe how she felt the applicant’s erect penis against her buttocks. She explained that the applicant held it there for a few seconds and when she asked him what he was doing that he just laughed.
92. During cross examination, Du Plessis version unravelled. Referring to the layout of the office (Employee Bundle p135), she described where the applicant’s jacket hang; where she and the applicant stood when she corrected his collar and where the applicant pulled her back towards him. But her detailed description of what happened where in the office cannot be true. This is so because the applicant office layout in July 2018 was significantly different. Du Plessis in fact places the incident after the renovations which was done much later than July 2018. And she was adamant the incident happened in July 2018. The office layout in July 2018 was materially different, as depicted on page137 of the Employee Bundle. For example, the applicant’s desk was at a different place in the office and there was no drywall dividing the office in two. The applicant testified in evidence in chief that the incident happened when she stepped out of her office into the passage, but this cannot possibly be true because the office was only divided into two offices, one for the applicant and one for herself, after July 2018. In my view this materially effects the reliability of Du Plessis’ recollection of the incident.
93. I have also considered the difference between how Du Plessis described the incident during this arbitration and how Thorne recalls Du Plessis’s version during their telephone conversation on 20 July 2018. According to Thorne Du Plessis was crying and told her that the applicant pulled her towards him when she helped him put on his jacket. But Du Plessis’s version is that the incident happened when she was boaut to step into the passage.
94. Du Plessis also testified that Thorne told her that she would come to the school the speak to the applicant, but Thorne denied during her cross-examination that she told Du Plessis that she would speak to the applicant.
95. What creates further doubt about Du Plessis’s description of the events of 20 July 2018, is that if what had happened made her feel so embarrassed, hurt, and disgusted as she testified, then why would Du Plessis reply to the applicant a mere 3 days later with a Whatsapp message ending it in with a heart emoji? Would it not be more plausible that, if the events as described by Du Plessis did happen, that work related messages would be kept professional and would not include a loving heart? From the evidence presented it appears that the applicant and Du Plessis had a good relationship until about November 2019. For example, in the Whatsapp message of 20 August 2019 Du Plessis wrote to the applicant that he is an amazing boss and, again ended the message with a heart emoji. The relationship appeared only to have turned sour by October/ November 2019 when the applicant concluded, rightly or wrongly, that Du Plessis leaked information to the SGB.
96. It was on the alleged incident of 20 July 2018 that the respondent decided to dismiss the applicant for contravening section 18(1)(q) of the Employment of Educators Act. Whatever happened between the applicant and Du Plessis on 20 July 2018, I cannot not safely conclude, even on a balance of probability, that it happened as described by Du Plessis. It is not one factor that led me to this conclusion but a combination of all the factors that I have referred to above. I therefore find that the respondent has not presented sufficient evidence to prove this allegation.
97. Turing to charge 5, the applicant has not impressed me as a witness. I found his testimony evasive, and I got the sense that he does not want to take any responsibility for his conduct and wants to blame everyone else but himself. The applicant did not take this arbitration in his confidence. I find his denial of not being influence of alcohol at school during 2018 and 2019 not credible. I am not persuaded by the applicant’s version that his choking on an egg on 26 November 2019 caused his disorientation on this day. Eating an egg does further does not explain the smell of liquor in his office that Thorne has testified to. I am persuaded by the corroborated evidence presented by Du Plessis and Thorne that the applicant was indeed intoxicated on this day. I am also not persuaded by the applicant’s explanation of the liquor bottles that was found in his office. The applicant claims that it was liquor bottles confiscated from learners. But he did not produce any records to substantiate his version. He could also not comment on the Vodka bottle that was photographed. I find the more probable version to be that the empty Vodka bottle found and photographed in the applicant’s office was his property. It was not the applicant’s case that he brought empty liquor bottles, for whatever reason, to school. Considering the state that Thorne found him in on 26 November 2019 and even arranging that the applicant be collected because he was in no state to drive, the applicant probably consumed liquor on this day in his office and was intoxicated.
98. From Nel’s testimony, which I accept as truthful, he observed the applicant being intoxicated in the exam hall on one occasion, causing a disturbance and acting inappropriately. He also testified that SMT hinted during a meeting in November 2019 that the applicant might have an alcohol problem. This turned out to be true because the applicant went for rehabilitation in December 2019.
99. I find that the respondent has presented sufficient evidence to prove that the applicant was on one or more occasions under the influence of alcohol at school.
100. To determine whether the dismissal of the applicant is justified I must take also into account the principals laid down by the Constitutional Court in Sidumo and Congress of South African Trade Unions v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC). The Constitutional Court held that fairness requires a balancing of the interest of the employer and employee parties. An arbitrator must consider the totality of circumstances in determining the fairness of the sanction.
101. I found that the respondent presented insufficient evidence to prove the alternative charge 1. The applicant can thus not be fairly dismissed on this charge.
102. In as far at charge 5 is concerned the Code of Good Practice: Dismissal, Schedule 8, item 3 (3), states the following about discipline: “Dismissal should be reserved for cases of serious misconduct or repeated offences”. Item 3(4) stipulates that: “Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable.” It also stipulates in item 3 (5) that: “When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider the factors such as the employee’s circumstances (including the length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself.”
103. The respondent presented sufficient evidence to prove that the applicant was under the influence of alcohol at school on more than one occasions. For a principal to be intoxicated at school is a serious offence. But what must also be considered is that applicant clearly has/had an alcohol abuse problem. This is an illness that he sought rehabilitation for during December 2019. Grogan states the following in Workplace Law (page 226 and 266) in respect of substance abuse: “Employees may be dismissed if they consume alcohol or narcotic drugs to the point that they are rendered unfit to perform their duties. There may, however, be a thin dividing line between cases in which alcohol or drug abuse may properly be treated as misconduct, and those in which it should be treated as a form of incapacity. The Code of Good Practice: Dismissal specifically singles out alcoholism or drug abuse as a form of incapacity that may require counselling and rehabilitation [Item 10(3)]... It is clear, however, that in certain contexts being intoxicated on duty can be treated as a disciplinary offence...Special mention is made [in the Code of Good Conduct: Dismissal] of employees addicted to drugs or alcohol, in which cases the employer is enjoined to consider counselling and rehabilitation. The dividing line between addiction and mere drunkenness is sometimes blurred. An employee who reports for duty under the influence of alcohol or drugs may be charged with misconduct. Whether such an employee should be considered for counselling or rehabilitation depends on the facts of each case. These steps are generally considered unnecessary if employees deny that they are addicted to drugs or alcohol, or that they were under the influence at the time. Rehabilitative steps need not be undertaken at the employer's expense unless provision is made for them in a medical aid scheme.”
104. In cases of incapacity an employee is not at fault for his or her behaviour and cannot be blamed for suffering from a disease and the impact it is having on his or her conduct at work. Under such circumstances an employer is obliged to assist the employee in overcoming his or her dependency. In these circumstances, I find that the sanction of dismissal on charge 5 being too harsh.
105. For the other incidents during May to September 2018 as stipulated in charge 2 on which the applicant was found guilty, the respondent decided to impose a fine as the appropriate sanction. I would have imposed a more severe sanction. But this cannot influence may duty to determine the fairness of the dismissed on the charges that in fact resulted in the applicant’s dismissal.
106. For all the above reason I find the dismissal of the applicant unfair. The applicant seeks reinstatement as primary relief. No evidence was presented by the respondent that it is not reasonably practicable for the respondent to reinstate the applicant. I am thus ordering the respondent to reinstate the applicant retrospectively from the date of his dismissal.
107. I will now turn to the procedural fairness of the dismissal. In Avril Elizabeth Home for the Mentally Handicapped v CCMA and others (2006) 27 ILJ 1644 (LC) the Labour Court has held that at the conception of procedural fairness incorporated into the LRA is one that requires an investigation into any alleged misconduct by the employer, an opportunity by any employee against whom any allegation of misconduct is made, to respond after a reasonable period with the assistance of a representative, a decision by the employer and notice of that decision. The Court held that this approach represents a significant and fundamental departure from what might be termed the 'criminal justice' model. The Court said that true justice for workers lies in a right to an expeditious and independent review of the employer’s decision to dismiss, with reinstatement as the primary remedy when the substance of employer decisions is found wanting.
108. In deciding whether a procedure was fair, commissioners should not adopt an overly technical approach and should bear in mind that the purpose of the recommended procedure is to provide an opportunity for dialogue and reflection regarding whether a fair reason for dismissal or some other sanction exists.
109. In as far as the applicant submitted that the chairperson of the internal disciplinary hearing failed to appreciate the significance and impact of the rule against self-corroboration when he considered and evaluated the evidence of Du Plessis, I find that this does not impact on the procedural fairness of the dismissal. Whilst there might be a delay between the alleged offences and the institution of the charges the respondent acted with sufficient haste once it became aware of the allegations against the applicant.
110. The documentary evidence shows that the applicant was notified of the allegations against him; was informed of his rights; and has presented his case during the disciplinary enquiry. The applicant was informed of the reasons for his dismissal and was afforded an appeal. I find the dismissal procedurally fair.
111. I feel oblige to mention the following issues, because the Constitution impresses an obligation on all those who make decisions concerning children to ensure that the best interest of the children enjoy paramount importance (Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BCLR 761 CC). The first issue is the allegation of mismanagement of school finances against the applicant which the chairperson of the disciplinary inquiry recommended ought to be referred for a forensic investigation by the Provincial Forensic Investigative Unit. It appears to be a matter that is unresolved. The second issue concerns 1) the 2017 allegations against the applicant as referred to in charges 3-4 which was dismissed by the chairperson of the disciplinary hearing without considering whether there are any merits to these very serious allegations and 2) the very serious allegations referred to in charge 2 for which the applicant only received a fine. I believe it is only appropriate that the South African Council of Educators (SACE) be made aware of these issues for its consideration. I am thus ordering that the ELRC file a copy of this award with the SACE.
AWARD
I find that the dismissal of the applicant procedurally fair but substantively unfair.
1. The Department of Education (Western Cape), is ordered to reinstate the applicant, Mr. Michael Koopman, in
the same or similar position and on conditions of work no less favourable than those that governed his
employment at time of dismissal being 29 January 2021.
2. Reinstatement is to take effect on 26 January 2022.
3. The respondent must pay the applicant arrear remuneration in the amount of R623 172.18 being the
remuneration the applicant would have earned had he not been dismissed (R52262.94 x 11months remuneration
= R574 892.34 + R48279.84 (4 weeks remuneration).
4. The respondent must pay the amount mentioned in paragraph 3 to the applicant on or before 31 January
2022.
5. Interest will accrue on the amount mentioned in paragraph 4 from 1 February 2022 in accordance with section 143(2) of the LRA.
6. The ELRC is directed to file a copy of this award to the South African Council for Educators (SACE).
ELRC Panellist: Jacques Buitendag
Case No.: ELRC660-20/21WC
Date of Award: 19 January 2022
In the Arbitration between:
MICHAEL KOOPMAN
(Union/Applicant)
and
DEPARTMENT OF EDUCATION – WESTERN CAPE
(Respondent)
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The arbitration hearing under the auspices of the Education Labour Relations Council (ELRC) took place on 14 July-, 30-31 August-, 8 October-, 25 November-, and 2 December 2021.
2. The applicant, Mr. M Koopman was represented by Mr. C Hendricks of MMH Inc. Mr. M Muller represented the respondent, the Department of Education – Western Cape. The proceedings were digitally recorded.
3. At the conclusion of the arbitration the parties agreed to submit written heads of argument. The respondent filed its arguments on 10 December 2021. The applicant’s arguments were filed on 13 December 2021. I requested a short extension from the bargaining council to submit the award.
THE ISSUE IN DISPUTE
4. I must determine whether or not the respondent fairly dismissed the applicant. If the dismissal was unfair, I must determine the appropriate relief.
BACKGROUND TO THE ISSUE
5. The applicant commenced him employment as an educator on 1 January 1986. He was appointed as the Principal of Bellville Technical High School (BTHS) on 1 May 2014.
6. On or about 10 March 2020 the respondent charged the applicant with the following 5 allegations of misconduct.
“Charge 1 It is alleged that you are guilty of misconduct in terms of Section 17(1)(b) of the Employment of Educators Act, no 76 of 1998 (hereinafter referred to as the Act), in that on or about 20 July 2018, you sexually assaulted Mrs. N du Plessis by pulling her from behind towards you and/or pressing your penis against her buttocks.
Alternative to Charge 1 “It is alleged that you are guilty of misconduct in terms of Section 18(1)(q) of the Act, in that on or about 20 July 2018, while on duty, you conducted himself in an improper, disgraceful or unacceptable manner towards Mrs N du Plessis by pulling her from behind towards you and pressing his penis against her buttocks.
Charge 2. It is alleged that you are guilty of misconduct in terms of Section 18(1)(q) of the Act, in that during the period May to September 2018, while on duty, you conducted yourself in an improper, disgraceful, or unacceptable manner towards Mrs du Plessis by i) Asking her to come and sit on your lap; and/or ii) Putting your foot on her back and pushing her down.
Charge 3 It is alleged that you are guilty of misconduct in terms of Section 17(1)(b) of the Act, in that on or about 9 June 2017 you sexually assaulted Mrs. T Joubert by hugging her from behind and touching/rubbing her breasts.
Alternative to Charge 3 “It is alleged that you are guilty of misconduct in terms of Section 18(1)(q) of the Act, in that on or about 9 June 2017, while on duty, you conducted himself in an improper, disgraceful or unacceptable manner towards Mrs. T Joubert by hugging her from behind and touching/rubbing her breasts.
Charge 4: It is alleged that you are guilty of misconduct in terms of Section 17(1)(b) of the Act, in that on or about 9 June 2017 you sexually assaulted Mrs. T Joubert by kissing her on her breasts.
Alternative to Charge 4 “It is alleged that you are guilty of misconduct in terms of Section 18(1)(q) of the Act, in that on or about 9 June 2017, while on duty, you conducted himself in an improper, disgraceful or unacceptable manner towards Mrs T Joubert by sexually harassing her, by kissing her breasts.
Charge 5 “It is alleged that you are guilty of misconduct in terms of Section 18(1)(p) of the Act, in that during the period 2018 and 2019, while on duty, he was under the influence of alcohol.”
7. The chairperson dismissed charges 1, 3 and 4 against the applicant because he found the charges “procedurally unfair, inconsistent and unjust under Section 17(1)(b) of the Act”. He did so without hearing the merits of Mrs. Joubert’s complaints.
8. The chairperson found the applicant guilty of conducting himself in an improper, disgraceful, or unacceptable manner towards du Plessis during May to September 2018 by “i) …asking her to come and sit on your lap; and/or ii) putting you foot on her back and pushing her down” and decided that a fine of R15000.00 for each of these instances is appropriate.
9. On the alternative charge 1 and on charge 5 the chairperson found the applicant guilty and decided that dismissal is the appropriate sanction. The applicant lodged an appeal with the Minister of Education – Western Cape. On 29 January 2021 the Minister dismissed the applicant’s appeal. The applicant earned R52 262.94 at the time of his dismissal.
10. The applicant claims that the dismissal on the alternative charge 1 and charge 5 was procedurally and substantively unfair and he seeks retrospective reinstatement as primary relief. The respondent claims that the applicant’s dismissal was fair.
SUMMARY OF EVIDENCE AND ARGUMENT
11. I have considered all the evidence and argument presented in this arbitration, but because section 138(7) of the Labour Relations Act, 66 of 1995 (LRA) requires an award to be issued with brief reasons for the findings, I shall only refer to the evidence that I regard as necessary to substantiate my findings in the determination of the dispute.
The respondent’s case
12. Mr. J P van Tonder testified under oath. He chaired the internal disciplinary hearing. Van Tonder referred to his report of the disciplinary hearing and testified that he dealt with the procedural challenges raised by the applicant. He calculated the delay between the date on which the Du Plessis complaint was registered with the department and the notification to attend the disciplinary hearing to have been 92 days. He did not find the delay excessive.
13. Van Tonder agreed under cross-examination that he is aware of the rules against self-corroboration. He considered Du Plessis’s evidence presented during the disciplinary hearing to have been paramount. But he also considered her affidavit dated 29 January 2020 and compared it with her testimony during the disciplinary hearing. He found no contradictions between her testimony and her affidavit.
14. Mrs. N Du Plessis testified under oath. She started at the BTHS in November 2017 on a two-year fixed term contract. She was appointed by the School Governing Body (SGB) and worked as the applicant’s personal assistant. She resigned in May 2020.
15. About the July 2018 incident (alternative charge 1), Du Plessis testified that she attended a memorial service held in the school hall for an ex-leaner, Mr. Grootboom. Du Plessis said that she wore skinny jeans, a t-shirt, and flat shoes on this day. When the memorial service ended, she went to fetch the applicant from his office because the Grootboom family wanted to thank him for the use of the hall.
16. Arriving at the applicant’s office she knocked and entered. The applicant wore baggy jeans and a shirt. She wanted him to look more presentable and helped the applicant put on his jacket. She fixed his collar and walked in front of him towards her office. As she was about to step out of her office into the hallway, she felt the applicant pulling her back with both hands on her shoulders. She lost her balance and fell back with one foot in the air. She felt his erect penis pressing on her buttocks. Du Plessis said that the applicant held it there for a few seconds. When she asked the applicant what he was doing, he laughed.
17. Du Plessis proceeded to walk to the hall with the applicant following her. She felt embarrassed, hurt, and disgusted. She said nothing more to the applicant and left him in the hall.
18. Du Plessis testified that she went back to the finance office and called Ms. Thorne, a person whom she trusted. She told Thorne what happened and asked her not to tell anyone because she did not want to lose her job. Thorne said that she will come to the school the following week to speak to the applicant.
19. Du Plessis said that the applicant told her that his pervious personal assistant, Joubert, accused him of sexually assaulting her. Joubert lost her job. Du Plessis testified that the applicant would talk about sex and sexual acts. She would ask him not to talk about it.
20. About the incidents in May to September 2018 (charge 2), Du Plessis testified that she went to the applicant’s office and showed him an email on her laptop. The applicant said to her that she must come and sit on his lap. Du Plessis told him there is not enough space to sit. Du Plessis said that she felt embarrassed. She did not report it as she needed her job. She considered the applicant’s suggestion to have been sexual in nature and inappropriate. Du Plessis testified that one day in September 2018 she was on her knees looking for a flash drive that had fallen. The applicant came and put his foot on her back, and she could not get up. When she asked him what he was doing, the applicant just laughed. She felt embarrassed and degraded. She told the investigator, Scholtz, about the above incidents when he interviewed her (in December 2019).
21. About the allegation that the applicant was under the influence of alcohol during 2018 and 2019 (charge 5), Du Plessis testified that the applicant will at times not act normal. He would make silly jokes, have slurred speech, and would smell of alcohol. She told the applicant that he needed help. She reported it to Thorne, Kotze and Meyer (the SGB chairperson at the time). It was on or about 14 November 2019 that the applicant admitted to her that he had a drinking problem.
22. Du Plessis referred to an incident on or about 26 November 2019 when Meyer and Thorne came to visit the applicant. She testified that when they entered the applicant’s office he choked on a boiled egg. The applicant was crying. The applicant was so intoxicated he could not get out of his chair. Thorne asked her to call the applicant’s son to come and fetch him from school. Du Plessis took photos of the empty liquor bottle (Vodka bottle) found in the applicant’s office.
23. Du Plessis recalls an earlier incident on 23 October 2019 when she arrived at school at about 07h30 and saw the applicant’s car parked across two parking bays. When she entered the applicant’s office, she smelled alcohol, saw a broken glass, the bar fridge door open, and spilled liquor. She also found a bottle of VAT69 whiskey. Kotze and Meyer arrived and asked her to hide the bottle. Du Plessis said that Kotze was always protecting the applicant. Kotze is friends with the applicant’s wife. Kotze also asked her to delete the photos that she took of the empty liquor bottles.
24. Du Plessis testified that on 10 December 2019 she received four separate warning letters issued by the applicant, delivered to her house by a courier. She believes that the applicant issued the warning letters because she did not want to protect him, and that he wanted to build a case against her.
25. Du Plessis testified that she sought medical attention on 22 January 2020. She was treated by a psychologist and a psychiatrist. On 11 May 2020 she decided to resign. Du Plessis denied that she, Thorne, and Meyer conspired against the applicant. Du Plessis said that she has no job, had no income for a year and had nothing to gain from an alleged conspiracy.
26. Under cross examination the applicant confirmed that she reported the alleged incident of 20 July 2018 to Thorne on the day. Then about 2 months later she reported it to Meyer. Her next report was to Scholtz in December 2019.
27. Du Plessis was inter alia referred to:
A WhatsApp of 23 July 2018 in which the applicant informed Du Plessis that he is home. Du Plessis responded with “Awesome. No Problem, just ph me if you need anything”. She ended the message with a heart emoji.
A secretary day photo taken on 5 September 2018 where she, the applicant and 4 other staff members is sitting together at a restaurant.
A voice message of 16 September 2019 where she thanked the applicant for a juice and ended the message saying I love you Mr. Koopman.
A picture of a dress your door competition held on 7 August 2019.
A Whatsapp message of 20 August 2019 where she wrote “Always a pleasure Mr. Koopman, you are an amazing boss. Ended with heart emoji.
Du Plessis explained that she often ends her WhatsApp messages with a heart emoji and that she sent messages of encouragement to the applicant.
28. It was put to Du Plessis that the Vodka bottle she found in the applicant’s office was a bottle that was confiscated during a rugby tour in 2018. She said that Nel and not the applicant is responsible for discipline at the school. She denied that the photos of the liquor bottles were staged.
29. Du Plessis referred to a drawing of layout of the applicant’s office (Bundle B p135) and pointed out where the 20 July 2018 incident occurred. Du Plessis detailed where she and the applicant was when the incident occurred. It was put to the applicant that this was not the layout of the applicant’s office on 20 July 2018 and that the office layout was as is depicted on Bundle B p137. This office layout did not have a drywall dividing the applicant’s office in two (an office for the applicant and one for Du Plessis), and the layout of the applicant’s office itself was different. Du Plessis replied that Hendricks is trying to confuse her and that the incident happened a long time ago.
30. It was put to Du Plessis that the applicant is taller than she is and that the difference in length makes her version that he pressed his penis against her backside not possible. Du Plessis maintained that she felt the applicant’s erect penis pressing against her backside.
31. Mrs. M Thorne testified under oath. Thorne said that she was a member of the schools’ SGB from 2008-2015. At the time of the alleged incidents, she was co-opted by the SGB to assist with legal and disciplinary inquiries. She and Du Plessis are acquaintances.
32. On 20 July 2018 Du Plessis called her. She was crying. Du Plessis told her she was helping the applicant putting on his jacket when he pulled her towards him. The applicant was erect, and she did not know what to do. Thorne told Du Plessis that she needed to speak to Meyer, who was the SGB chairperson at the time. Du Plessis was afraid that she might lose her job and Thorne told her to remain calm.
33. Thorne said that she did not visit the school but contacted Meyer. She informed Meyer that it was not the first time such an incident came to her ears and that they must address it.
34. Thorne testified that the applicant’s previous personal assistant also laid a complaint against the applicant, which they dealt with informally. She later apologised to her. The applicant said that he will never do it again.
35. Thorne said that she spoke to Du Plessis about two weeks after the incident. Du Plessis told her about an incident where the applicant put his foot on her back and touched her hair. Du Plessis said that the applicant also once asked her to sit on his lap. Thorne said that a pupil also told her that the applicant asked her to sit on his lap.
36. About the allegation that the applicant was under the influence of alcohol at school during 2018-2019, Thorne testified that one day she and Meyer went to the applicant’s office. When they entered the office, the applicant stuffed a boiled egg in his mouth. He started to cry and laugh at the same time. The applicant was drunk and smelled of liquor. She referred to a photo of Vodka bottle that was found in the applicant’s office. The applicant’s wife was phoned because he was in no state to drive and the applicant’s son, Daryl, came to the school to fetch him.
37. Thorne testified that there are also allegations of financial mismanagement against the applicant.
38. Thorned denied that they are conspiring against the applicant as alleged.
39. Under cross examination Thorne testified that Meyer confirmed to her that Du Plessis contacted her about the 20 July 2018 incident and that she, Thorne, left it at that. Thorne denied that she said to Du Plessis that she will speak to Koopman about the incident.
40. Thorne maintained that the applicant was under the influence on the day when the applicant choked on an egg.
41. It was put to Thorne that she and Meyer was responsible for unlawful expenses and that because of their conduct Darries (an SGB appointee) received a financial settlement. It was also put to Thorne that they orchestrated an extension of Du Plessis contract and a salary increase without the input of the applicant. Thorne denied these allegations.
42. Mr. J Nel testified under oath. He is the current Acting Principal. Nel explained that he is responsible for leaner discipline. Confiscated liquor is kept in his office as evidence. He said that there will be record of all confiscated items. Nel is not aware of liquor bottles stored in the applicant’s office and he cannot recall that the applicant brought an incident to his attention where he confiscated alcohol.
43. He recalled an incident where the applicant came into the exam hall and was acting inappropriately and caused a disturbance. He said the applicant was intoxicated but he does not know if it was from alcohol or medication. He told the applicant on this day that he does not have to attend the evening’s disciplinary meeting.
44. Nel said that during November 2019 Botes (the Circuit Manager at the time) came to speak to the School Management Team (SMT). The SMT was concerned about the applicant’s absence and suspected that he has a medical condition and needed counselling. SMT members were hinting that the applicant might have an alcohol problem. It came to light after this meeting that the applicant attend rehabilitation.
45. Under cross-examination Nel conceded that the applicant might have kept confiscated alcohol and other contrabands in his office. He reiterated that if that is the case there must be record of it.
46. Nel confirmed that the employment contracts for SGB appointments are signed by the SGB chairperson and principal. He confirmed that it is not standard practice for the SGB vice-chairperson to sign employment contracts.
The applicant’s case
47. Mr. M Koopman testified under oath. The applicant testified that he was involved in a motor collision on 14 July 2018 which cause him to walk with a limp. On 20 July 2018 he attended a SMT meeting. The Grootboom memorial service started at about 09h00. At about 10h30 Du Plessis came to his office, stood at the doorway, and told him Grootboom’s parents wanted to speak to him. He already had a blazer and jeans on. He followed Du Plessis to the hall where he offered his condolences to the Grootboom family. He left the school at about 11h00.
48. In as far as Du Plessis’s version is concerned, the applicant testified nothing happened between him and Du Plessis. Du Plessis did not correct his collar. Du Plessis lied about the layout of the office when she described the incident. He is using chronic medication to control high blood pressure since 2013 and experienced erectile dysfunction (ED). He is 1.76m tall and Du Plessis is about 1.55m and his penis could therefore not have touched Du Plessis buttocks.
49. About the allegation that the applicant was under the influence of alcohol at school during 2018-2019, the applicant testified that on 26 November 2018 Meyer and Thorne entered his office at about 14h45. He was eating a boiled egg and choked. He felt disorientated and his eyes were teary. His son was called to pick him up from school. The applicant denied that he was under the influence of alcohol on this day.
50. He said that Nel and Du Plessis have keys to his office and that he cannot comment on the photo of the Smirnoff Vodka bottle. The applicant testified that he confiscated contraband and sometimes liquor bottles are stored in his office.
51. The applicant testified that he left his laptop at the school on 22 October 2019. He was booked off sick until 25 October 2019. At about 02h30 in the morning of 23 October 2019 he went to school to collect his laptop. He did some work and fell asleep. Kotze found him asleep at his desk at about 06h30. He was tired and disorientated. Kotze took him home.
52. The applicant denied that he was under the influence when he visited the exam hall as testified by Nel.
53. The applicant testified that he drank a lot and was hopitalised from 9 December – 30 December 2019. He however denied that he consumed alcohol at school.
54. The applicant testified about tension between him and members of the SGB relating to alleged financial mismanagement; Darries’s salary; and a settlement agreement reached at the CCMA with Darries. He said that after a pre-budget meeting on 21 October 2019, he told Du Plessis not to allow Thorne into his office again. On 23 November 2019 Du Plessis came back from sick leave. He believed that Du Plessis leaked information to the SGB and issued her with warning letters on 10 December 2019.
55. The applicant referred to the amended employment contract of Du Plessis and said that it was not discussed with him. In January 2020 he asked Du Plessis to move to the finance offices because he did not trust her anymore with files and information. On 23 January 2020 Du Plessis took sick leave and never returned to the school. She resigned in May 2020.
56. Under cross-examination the applicant maintained that he is innocent of all the allegations levelled against him. Questioned about the layout of the office in July 2018 it was put to the applicant that regardless of the layout, Du Plessis was in his office on this day. The applicant agreed that Du Plessis was in his office. He maintained that Du Plessis did not correct his collar and denied the version of Du Plessis.
57. The applicant denied that he previously inappropriately hugged a Ms. Fernando.
58. It was put to the applicant that he did not refer to charge 2 in his evidence in chief. The applicant also denied this allegation that Du Plessis has levelled against him and on which he was found guilty off.
59. In as far as charge 5 is concerned, the applicant testified the liquor bottles was confiscated from leaners and left in his office for evidence purposes. He denied that the liquor bottles belonged to him.
60. The applicant agreed that he suspended Darries without discussing it with the SGB. He agreed that he issued the three warning letters to Du Plessis without following due process. He said that Du Plessis and Thorne has conspired against him.
61. Mr. R Botes testified under oath. He was the Circuit Manager and retired in September 2020. Botes testified that in October/November 2019 Meyer contacted him and told him that the school was in disarray. She listed three complaints, namely that the applicant is intoxicated; involved in financial mismanagement; and inappropriately touched a female learner. Meyer said that she did not have enough details about the 3rd allegation. Botes informed Meyer to submit the complaints in writing. He later received the written complaints about the applicant being under the influence of alcohol and of financial mismanagement. The complaints were investigated by head office. He asked Scholtz to be involved in the investigation but was never called to provide his inputs.
62. Botes referred to an SMT meeting held on 14 November 2019. Botes said that the SMT did not agree that the school was in disarray, and nobody made negative comments about the applicant in his presence.
63. Botes confirmed that a SGB meeting held on 14 November 2019 was not properly constituted because the SGB was not a quorum. He said that the way employment contracts of SGB appointed employees were extended and amended were not normal.
64. Botes’s view is that Thorne overstepped her bounds as a co-opted member of the SGB.
65. Ms. M Coetzee testified under oath. She is employed at the school since 2016. She recalls that 20 July 2018 was the Grootboom memorial at the school. She did not notice anything strange about Du Plessis on this day. She does not agree that the applicant was under the influence of alcohol most of the time.
Expert opinions of Dr Greybe and Dr Spies
66. Dr Greybe and Dr Spies provided written opinions and testified. Their opinions and testimony are on record, and I do not find it necessary to repeat it here in detail.
67. Dr Greybe’s opinion as the applicant’s medical practitioner is that given the applicant’s age, medical condition and being on a beta-blocker, Adco-Atenolol, that it is highly unlikely that the applicant could have achieved an erection on 20 July 2018.
68. Dr Spies, a Urologist, relied on clinical information provided and medical literature to support his opinion that erectile dysfunction caused by beta-blockers are significantly uncommon. In his view Dr Greybe’s conclusion of it being highly unlikely that the applicant could have achieved an erection on 20 July 2018 is a reach too far.
Closing arguments
69. The comprehensive heads of arguments of the parties are on record and I do not find it necessary to repeat it here in full. If I do not mention a particular argument it does not imply that it was not considered.
70. In short, Muller argued that the applicant’s testimony was unreliable, uncredible and untrustworthy. There were several occasions were his version even clashed with his own medical expert, Dr Greybe and the only inference that can be drawn is that Mr Koopman was dishonest or evasive. Save for again, relying on a bare denial, he maintained that the incident never happened. However, Du Plessis testimony was overwhelming descriptive, detailed, and accurate, save for the inconsistency relating to the layout of the applicant’s office. Dr Greybe’s evidence should be less weight in comparison to Dr Spies, as Dr Greybe confirmed that he is not a specialist. Furthermore, Dr Spies maintaining that incidents of erectile dysfunction are low for patients on the medication that was prescribed for the applicant. The applicant could not provide a plausible or reasonable explanation why alcohol bottles were discovered in his office. Du Plessis and Thorne both testify to Mr Koopman’s erratic behaviour and that he regularly smelled of alcohol
71. Muller argued that the respondent has proved its case against the applicant on a balance of probabilities. He referred to case law and argued that the sanction of dismissal was fair.
72. Hendricks referred to case law and argued that the dismissal was substantively and procedurally unfair. In as far as procedural unfairness is concerned, the chairperson of the internal disciplinary hearing failed to appreciate the significance and impact of the rule against self-corroboration when he considered and evaluated the evidence of Du Plessis as well as significant time-lapse between the alleged offences and the institution of the charges. The respondent has failed to present evidence on the procedural fairness of the dismissal despite it being recorded in the pre-arbitration minute.
73. About the substantive fairness of the dismissal Hendricks argued that the inherent probabilities favour the version proffered by the applicant. The applicant presented credible and undisputed evidence speaking to the good relationship that existed between himself and Du Plessis after the alleged incident of 20 July 2018. The WhatsApp messages and occurrences speaking to those messages spoke volumes. The testimony of Du Plessis is not credible in material respects. The version of Du Plessis of what occurred on 20 July 2018 is contradicted by Thorne in material respects. Thorne is the alleged first report. When the first report’s version is compared with that of Du Plessis it becomes apparent that the incident was contrived. Thorne provided no corroboration. In fact, Thorne exposed the falsehoods tendered by Du Plessis. The testimony of an every-day drunken headmaster was clearly dishonest. Nel, the respondent’s witness and current Acting Principal was given an opportunity to speak to any alleged occurrences of intoxication. He could only recall one unrelated incident and could not be definitive about the use of alcohol.
74. The applicant, through his medical practitioner, presented credible evidence of his ED. Moreover, the applicant’s version that he was much taller than Du Plessis and that it was not physically possible that his private parts touched that of Du Plessis, was not refuted.
75. There was an ulterior motive for Du Plessis and others in relation to the institution of both charges. In this regard applicant presented clear evidence of bad motives on the part of Du Plessis and the SGB. The SGB and Du Plessis became a law unto themselves. The SGB incurred financial expenses when the school could not afford it. The applicant challenged the decisions of the SGB. The applicant, inter-alia, called Thorne out in a SGB meeting, suspended Darries and subsequently issued Du Plessis with warning letters. This stance by applicant attracted resistance and ultimately the complaints lodged with the circuit manager.
ANALYSIS OF EVIDENCE AND ARGUMENTS
76. Section 192 of the LRA provides that the employee must establish the existence of a dismissal and if that has been established the employer bears the onus to prove on a balance of probabilities that the dismissal is fair. It is common cause that the respondent dismissed the applicant.
77. In deciding the substantive fairness of the applicant’s dismissal, I must consider Schedule 8, item 7 of the Code of Good Practice on Dismissal. In this regard the Code states that an arbitrator must consider:
“Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to the workplace; and if a rule or standard was contravened, whether or not
• the rule was a valid or reasonable rule or standard
• the employee was aware, or could reasonably be expected to have been aware, of the rule or standard
• the rule or standard has been consistently applied by the employer and
• dismissal was an appropriate sanction for the contravention of the rule or standard”
78. The applicant was found guilty and dismissed on two allegations of misconduct namely 1) that he contravened section 18(1)(q) of the Employment of Educators Act by conducting himself in an improper, disgraceful, or unacceptable manner towards Du Plessis by pulling her from behind towards him and pressing his penis against her buttocks, and 2) that he contravened section 18(1)(p) of the act during 2018 and 2019 by being under the influence of alcohol whilst on duty.
79. The applicant did not challenge the validity or reasonableness of the above-mentioned rules and it was not his case that he unaware of the rules or that the rules or standards have been inconsistently applied by the respondent.
80. I will first deal with the alternative charge 1.
81. I am mindful of the 1998 Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace and the subsequent 2005 Amended Code on the Handling of Sexual Harassment Cases in the Workplace (the Amended Code). I wish to refer to a few sections of the Amended Code. Item 4 of the Amended Code defines sexual harassment as follows: “Sexual harassment is unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace, taking into account all of the following factors: whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation; whether the sexual conduct was unwelcome; the nature and extent of the sexual conduct; and the impact of the sexual conduct on the employee."
82. What can be considers as unwelcome is considered in item 5.2 of the Amended Code. Item 5.2 stipulates that 1) There are different ways in which an employee may indicate that sexual conduct is unwelcome, including non-verbal conduct such as walking away or not responding to the perpetrator. 2) Previous consensual participation in sexual conduct does not necessarily mean that the conduct continues to be welcome. 3) Where a complainant has difficulty indicating to the perpetrator that the conduct is unwelcome, such complainant may seek the assistance and intervention of another person such as a co-worker, superior, counsellor, human resource official, family member or friend.
83. Whether the conduct amounts to sexual harassment, the Amended Code deals with it in item 5 as follows:
5.3.1 The unwelcome conduct must be of a sexual nature, and includes physical, verbal, or non-verbal conduct.
5.3.1.1 Physical conduct of a sexual nature includes all unwelcome physical contact, ranging from touching to sexual assault and rape, as well as strip search by or in the presence of the opposite sex.
5.3.1.2 Verbal conduct includes unwelcome innuendos, suggestions, hints, sexual advances, comments with sexual overtones, sex-related jokes or insults, graphic comments about a person’s body made in their presence or to them, inappropriate enquiries about a person’s sex life, whistling of a sexual nature and the sending by electronic means or otherwise of sexually explicit text.
5.3.1.3 Non-verbal conduct includes unwelcome gestures, indecent exposure and the display or sending by electronic means or otherwise of sexually explicit pictures or objects.
5.2.2 Sexual harassment may include, but is not limited to, victimization, quid pro quo harassment and sexual favouritism.
5.2.2.1 Victimization occurs where an employee is victimized or intimidated for failing to submit to sexual advances.
5.2.2.2 Quid pro quo harassment occurs where a person such as an owner, employer, supervisor, member of management or co-employee, influences or attempts to influence an employee’s employment circumstances (for example engagement, promotion, training, discipline, dismissal, salary increments or other benefits) by coercing or attempting to coerce an employee to surrender to sexual advances. This could include sexual favouritism, which occurs where a person in authority in the workplace rewards only those who respond to his or her sexual advances.
5.2.2.3 A single incident of unwelcome sexual conduct may constitute sexual harassment.
84. Sexual harassment has been characterised by our courts as 'the most heinous misconduct that plagues a workplace” (Campbell Scientific Africa (Pty) Ltd v Simmers and Others (2016) 37 ILJ 116 (LAC)).
85. If an employee, without consent, pulls another employee towards him and deliberately presses his penis against her buttocks, I would have little hesitation to find that such conduct amounts to sexual harassment and deserving of dismissal.
86. In casu the applicant denies the allegation. When an employee denies the allegation(s) against him of her, the onus is on the employer to prove the allegation on a balance of probability. In WESUSA & Others vs Jacobz 2000 8 BLLR 977 (LC), the Court remarked that “the onus will be discharged if the respondent can show credible evidence that its version is the more probable and acceptable version. The credibility and the improbability of what they say should not be regarded as a separate enquiry to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the respondents version, an investigation where the questions of demeanour and impression are measured against the content of a witness’s evidence, where the importance of any discrepancies and contradiction is assessed and where a particular story is tested against the facts which cannot be disputed and against the inherent probabilities, so that a the end of the day one can say with conviction that one version is false and be rejected with safety”.
87. The respondent thus carries the responsibility to ensure that it present sufficient evidence during this de novo arbitration proceedings to prove the allegations and fairness of the dismissal. The onus will not be discharged by raising mere suspicions of misconduct.
88. Two conflicting versions of what has transpired in the applicant’s office on 20 July 2018 was presented during this arbitration. The piece of the puzzle to untangle is whether the applicant, on the balance of probabilities, did indeed pull Du Plessis towards him and pressed his penis against her buttocks on the day on question. In Department of Health KZN v PSA and others (DA 4/15) (2018) 39 ILJ 1719 (LAC) (handed down on 20 March 2018) the Commissioner was also faced with two conflicting versions. The Court held that the determination of such disputes needs an assessment of the credibility of evidence and the decision arrived at on a balance of probabilities.
89. I wish to first refer to three issues. Firstly, I am not persuaded that Du Plessis, Thorne, and any other person are conspiring against the applicant. Secondly, based the applicant’s clinical information, the chronic medication that the applicant is using, and the medical literature referred to by Dr Spies showing that erectile dysfunction caused by beta-blockers are significantly uncommon, I prefer Dr Spies’ conclusion that Dr Greybe’s view of it being highly unlikely that the applicant could not have achieved an erection on 20 July 2018 to be a reach too far. Thirdly, I find the contention that it was impossible for the applicant’s penis to have touched Du Plessis’s buttocks because of the difference in hight not probable. A mere bending in the knees of the applicant, or Du Plessis not standing fully upright could have resulted in the applicant’s scrotum being level with Du Plessis’s buttocks.
90. The applicant case is simply that he did not pull Du Plessis towards him and did not press his penis against her buttocks on 20 July 2018 when she visited the applicant in his office to inform him that his presence is required in the hall by the Grootboom family. The applicant’s version offers little more than a mere denial. But a positive allegation is not necessarily more truthful that a mere denial of the allegation.
91. Du Plessis, in her evidence in chief testified confidently as to what transpired in the applicant’s office on this day. She explained what she was wearing and what the applicant was wearing. She testified that she helped the applicant put on his jacket and fixed his collar. Du Plessis explained that when she stepped out of her office into the passage that the applicant pulled her back and she describe how she felt the applicant’s erect penis against her buttocks. She explained that the applicant held it there for a few seconds and when she asked him what he was doing that he just laughed.
92. During cross examination, Du Plessis version unravelled. Referring to the layout of the office (Employee Bundle p135), she described where the applicant’s jacket hang; where she and the applicant stood when she corrected his collar and where the applicant pulled her back towards him. But her detailed description of what happened where in the office cannot be true. This is so because the applicant office layout in July 2018 was significantly different. Du Plessis in fact places the incident after the renovations which was done much later than July 2018. And she was adamant the incident happened in July 2018. The office layout in July 2018 was materially different, as depicted on page137 of the Employee Bundle. For example, the applicant’s desk was at a different place in the office and there was no drywall dividing the office in two. The applicant testified in evidence in chief that the incident happened when she stepped out of her office into the passage, but this cannot possibly be true because the office was only divided into two offices, one for the applicant and one for herself, after July 2018. In my view this materially effects the reliability of Du Plessis’ recollection of the incident.
93. I have also considered the difference between how Du Plessis described the incident during this arbitration and how Thorne recalls Du Plessis’s version during their telephone conversation on 20 July 2018. According to Thorne Du Plessis was crying and told her that the applicant pulled her towards him when she helped him put on his jacket. But Du Plessis’s version is that the incident happened when she was boaut to step into the passage.
94. Du Plessis also testified that Thorne told her that she would come to the school the speak to the applicant, but Thorne denied during her cross-examination that she told Du Plessis that she would speak to the applicant.
95. What creates further doubt about Du Plessis’s description of the events of 20 July 2018, is that if what had happened made her feel so embarrassed, hurt, and disgusted as she testified, then why would Du Plessis reply to the applicant a mere 3 days later with a Whatsapp message ending it in with a heart emoji? Would it not be more plausible that, if the events as described by Du Plessis did happen, that work related messages would be kept professional and would not include a loving heart? From the evidence presented it appears that the applicant and Du Plessis had a good relationship until about November 2019. For example, in the Whatsapp message of 20 August 2019 Du Plessis wrote to the applicant that he is an amazing boss and, again ended the message with a heart emoji. The relationship appeared only to have turned sour by October/ November 2019 when the applicant concluded, rightly or wrongly, that Du Plessis leaked information to the SGB.
96. It was on the alleged incident of 20 July 2018 that the respondent decided to dismiss the applicant for contravening section 18(1)(q) of the Employment of Educators Act. Whatever happened between the applicant and Du Plessis on 20 July 2018, I cannot not safely conclude, even on a balance of probability, that it happened as described by Du Plessis. It is not one factor that led me to this conclusion but a combination of all the factors that I have referred to above. I therefore find that the respondent has not presented sufficient evidence to prove this allegation.
97. Turing to charge 5, the applicant has not impressed me as a witness. I found his testimony evasive, and I got the sense that he does not want to take any responsibility for his conduct and wants to blame everyone else but himself. The applicant did not take this arbitration in his confidence. I find his denial of not being influence of alcohol at school during 2018 and 2019 not credible. I am not persuaded by the applicant’s version that his choking on an egg on 26 November 2019 caused his disorientation on this day. Eating an egg does further does not explain the smell of liquor in his office that Thorne has testified to. I am persuaded by the corroborated evidence presented by Du Plessis and Thorne that the applicant was indeed intoxicated on this day. I am also not persuaded by the applicant’s explanation of the liquor bottles that was found in his office. The applicant claims that it was liquor bottles confiscated from learners. But he did not produce any records to substantiate his version. He could also not comment on the Vodka bottle that was photographed. I find the more probable version to be that the empty Vodka bottle found and photographed in the applicant’s office was his property. It was not the applicant’s case that he brought empty liquor bottles, for whatever reason, to school. Considering the state that Thorne found him in on 26 November 2019 and even arranging that the applicant be collected because he was in no state to drive, the applicant probably consumed liquor on this day in his office and was intoxicated.
98. From Nel’s testimony, which I accept as truthful, he observed the applicant being intoxicated in the exam hall on one occasion, causing a disturbance and acting inappropriately. He also testified that SMT hinted during a meeting in November 2019 that the applicant might have an alcohol problem. This turned out to be true because the applicant went for rehabilitation in December 2019.
99. I find that the respondent has presented sufficient evidence to prove that the applicant was on one or more occasions under the influence of alcohol at school.
100. To determine whether the dismissal of the applicant is justified I must take also into account the principals laid down by the Constitutional Court in Sidumo and Congress of South African Trade Unions v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC). The Constitutional Court held that fairness requires a balancing of the interest of the employer and employee parties. An arbitrator must consider the totality of circumstances in determining the fairness of the sanction.
101. I found that the respondent presented insufficient evidence to prove the alternative charge 1. The applicant can thus not be fairly dismissed on this charge.
102. In as far at charge 5 is concerned the Code of Good Practice: Dismissal, Schedule 8, item 3 (3), states the following about discipline: “Dismissal should be reserved for cases of serious misconduct or repeated offences”. Item 3(4) stipulates that: “Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable.” It also stipulates in item 3 (5) that: “When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider the factors such as the employee’s circumstances (including the length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself.”
103. The respondent presented sufficient evidence to prove that the applicant was under the influence of alcohol at school on more than one occasions. For a principal to be intoxicated at school is a serious offence. But what must also be considered is that applicant clearly has/had an alcohol abuse problem. This is an illness that he sought rehabilitation for during December 2019. Grogan states the following in Workplace Law (page 226 and 266) in respect of substance abuse: “Employees may be dismissed if they consume alcohol or narcotic drugs to the point that they are rendered unfit to perform their duties. There may, however, be a thin dividing line between cases in which alcohol or drug abuse may properly be treated as misconduct, and those in which it should be treated as a form of incapacity. The Code of Good Practice: Dismissal specifically singles out alcoholism or drug abuse as a form of incapacity that may require counselling and rehabilitation [Item 10(3)]... It is clear, however, that in certain contexts being intoxicated on duty can be treated as a disciplinary offence...Special mention is made [in the Code of Good Conduct: Dismissal] of employees addicted to drugs or alcohol, in which cases the employer is enjoined to consider counselling and rehabilitation. The dividing line between addiction and mere drunkenness is sometimes blurred. An employee who reports for duty under the influence of alcohol or drugs may be charged with misconduct. Whether such an employee should be considered for counselling or rehabilitation depends on the facts of each case. These steps are generally considered unnecessary if employees deny that they are addicted to drugs or alcohol, or that they were under the influence at the time. Rehabilitative steps need not be undertaken at the employer's expense unless provision is made for them in a medical aid scheme.”
104. In cases of incapacity an employee is not at fault for his or her behaviour and cannot be blamed for suffering from a disease and the impact it is having on his or her conduct at work. Under such circumstances an employer is obliged to assist the employee in overcoming his or her dependency. In these circumstances, I find that the sanction of dismissal on charge 5 being too harsh.
105. For the other incidents during May to September 2018 as stipulated in charge 2 on which the applicant was found guilty, the respondent decided to impose a fine as the appropriate sanction. I would have imposed a more severe sanction. But this cannot influence may duty to determine the fairness of the dismissed on the charges that in fact resulted in the applicant’s dismissal.
106. For all the above reason I find the dismissal of the applicant unfair. The applicant seeks reinstatement as primary relief. No evidence was presented by the respondent that it is not reasonably practicable for the respondent to reinstate the applicant. I am thus ordering the respondent to reinstate the applicant retrospectively from the date of his dismissal.
107. I will now turn to the procedural fairness of the dismissal. In Avril Elizabeth Home for the Mentally Handicapped v CCMA and others (2006) 27 ILJ 1644 (LC) the Labour Court has held that at the conception of procedural fairness incorporated into the LRA is one that requires an investigation into any alleged misconduct by the employer, an opportunity by any employee against whom any allegation of misconduct is made, to respond after a reasonable period with the assistance of a representative, a decision by the employer and notice of that decision. The Court held that this approach represents a significant and fundamental departure from what might be termed the 'criminal justice' model. The Court said that true justice for workers lies in a right to an expeditious and independent review of the employer’s decision to dismiss, with reinstatement as the primary remedy when the substance of employer decisions is found wanting.
108. In deciding whether a procedure was fair, commissioners should not adopt an overly technical approach and should bear in mind that the purpose of the recommended procedure is to provide an opportunity for dialogue and reflection regarding whether a fair reason for dismissal or some other sanction exists.
109. In as far as the applicant submitted that the chairperson of the internal disciplinary hearing failed to appreciate the significance and impact of the rule against self-corroboration when he considered and evaluated the evidence of Du Plessis, I find that this does not impact on the procedural fairness of the dismissal. Whilst there might be a delay between the alleged offences and the institution of the charges the respondent acted with sufficient haste once it became aware of the allegations against the applicant.
110. The documentary evidence shows that the applicant was notified of the allegations against him; was informed of his rights; and has presented his case during the disciplinary enquiry. The applicant was informed of the reasons for his dismissal and was afforded an appeal. I find the dismissal procedurally fair.
111. I feel oblige to mention the following issues, because the Constitution impresses an obligation on all those who make decisions concerning children to ensure that the best interest of the children enjoy paramount importance (Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BCLR 761 CC). The first issue is the allegation of mismanagement of school finances against the applicant which the chairperson of the disciplinary inquiry recommended ought to be referred for a forensic investigation by the Provincial Forensic Investigative Unit. It appears to be a matter that is unresolved. The second issue concerns 1) the 2017 allegations against the applicant as referred to in charges 3-4 which was dismissed by the chairperson of the disciplinary hearing without considering whether there are any merits to these very serious allegations and 2) the very serious allegations referred to in charge 2 for which the applicant only received a fine. I believe it is only appropriate that the South African Council of Educators (SACE) be made aware of these issues for its consideration. I am thus ordering that the ELRC file a copy of this award with the SACE.
AWARD
I find that the dismissal of the applicant procedurally fair but substantively unfair.
1. The Department of Education (Western Cape), is ordered to reinstate the applicant, Mr. Michael Koopman, in
the same or similar position and on conditions of work no less favourable than those that governed his
employment at time of dismissal being 29 January 2021.
2. Reinstatement is to take effect on 26 January 2022.
3. The respondent must pay the applicant arrear remuneration in the amount of R623 172.18 being the
remuneration the applicant would have earned had he not been dismissed (R52262.94 x 11months remuneration
= R574 892.34 + R48279.84 (4 weeks remuneration).
4. The respondent must pay the amount mentioned in paragraph 3 to the applicant on or before 31 January
2022.
5. Interest will accrue on the amount mentioned in paragraph 4 from 1 February 2022 in accordance with section 143(2) of the LRA.
6. The ELRC is directed to file a copy of this award to the South African Council for Educators (SACE).
ELRC Panellist: Jacques Buitendag