ELRC 798-20/21 KZN

Case Number: ELRC 798-20/21 KZN
Commissioner: Nonhlanhla Dubazane
Date of Award: 14 June 2022

In the matter between

SALIPSWU obo MV Gcabashe
(Union/Applicant)

And


DEPARTMENT OF EDUCATION – KWAZULU NATAL
(Respondent)


1. DETAILS OF HEARING AND REPRESENTATION

1.1 The matter was heard on 4 & 15/6/21, 7 & 9/7/21, 3, 4, 27 & 30/8/21, 20/10/21, 13 & 30/11/21, 1/12/21, 9 & 26/2/22, 7 & 30 April 2022 respectively under the auspices of the Education labour Relations Council. Proceedings at Teachers Centre & TVET College, Asherville, Durban.

1.2 The Applicant, Mr MV Gcabashe was present and represented by Mr RN Makhanya, a SALIPSWU official. The Respondent was represented by its employee relations manager, Mr AS Buthelezi.

2. ISSUE TO BE DECIDED

2.1 I have to determine whether the dismissal of the Applicant was substantively and procedurally unfair and then make an appropriate remedy.
2.2 The Applicant sought reinstatement as a remedy.

3. BACKGROUND TO THE ISSUE

3.1 The Applicant worked for the Respondent as the educator post level 1. He commenced duties in May 1994 and was receiving a monthly salary in the amount of R29 449.00.
3.2 He alleged that he was dismissed on the 9th of March 2021 and he referred the matter to the council on the 15th of March 2021.
3.3 The matter was set down for conciliation on the 8th of April 2021 when it was conciliated and remained unresolved. A certificate of non-resolution was issued.
3.4 Arbitration proceedings took place on the dates aforementioned.
3.5 The Applicant averred that he was dismissed for the offences outlined as follows in the charge sheet:

Charge 1
In that on or about September 2019 you contravened Section 17(1)(a) of the Act by committing the offence as listed below:
• Submitted marks whereas marking was not done and marks do not tally.
• September examination marks for grade 9A marked by the learners in class.

Charge 2
In that on or about 28 August 2018, while on duty you assaulted, a learner by the name of Sizwe Zikhali, who was in Grade 12H, by so doing you contravened Section 18(1) of the Act.

ALTERNATIVELY
In that on or about 28 August 2018, while on duty, you conducted yourself in an improper, disgraceful or unacceptable manner, by assaulting or attempting to or threatening to assault a learner by the name of Sizwe Zikhali, by so doing you contravened Section 18(1)(q) of the Act.

3.6 The Applicant challenged both substance and procedure. The Respondent said that the dismissal was fair.

3.7 The Respondent handed in Annexure A.

3.8 The Respondent is the Department of the South African Government, overseeing primary and secondary education in South Africa.

4. SURVEY OF EVIDENCE AND ARGUMENT

RESPONDENT’S CASE


4.1 The Respondent’s first witness, Jabu Dumisa testified as follows: She played a role of the chairperson in Mr Gcabashes’s disciplinary enquiry.

4.2 Mr Gcabashe’s representative, Mr Makhanya attended Mr Gcabashe’s disciplinary hearing on the 5th of March 2020 and raised a number of preliminary issues, but the main issue was about the documents which he needed for preparation for the hearing. Most of the documents he requested related to the exams. She ruled that the hearing continue on that day and the parties deal with charge 2. The Respondent called witnesses and Mr Makhanya was afforded an opportunity to cross – examine those witnesses. The hearing had to be adjourned to another date for the parties to exchange documents.

4.3 The matter did not continue on the next sitting which was towards the end of March 2020. She (Dumisa) received a telephone call from Mr Makhanya informing her that Mr Gcabashe was sick. She expected Mr Makhanya to produce Mr Gcabashe’s sick note.

4.4 Another notice to attend the hearing was issued to Mr Gcabashe to attend the hearing on the 21st & 22nd of July 2020 but both Mr Gcabashe and his representative did not make appearance on both dates. They also did not contact them and inform them about the reason for their absence. She established that they were duly served with the notice and therefore she had no option but to proceed with the case in their absence on 26 & 27 August 2020.

4.5 It is stipulated in the Respondent’s Disciplinary Code and Procedure on page 13 of Annexure A as well as in Mr Gcabashe’s notice to attend the hearing that the hearing may continue in the absence of the educator. Both documents guided her to continue with the hearing. She meant to say under ‘’BACKGROUND’’ in her presiding officer’s report that the employee pleaded not guilty and also the date was 5 March 2020 and not 9 March 2020 as it reflects in the report.

4.6 She arrived at a finding of guilt in respect of both charges. She pronounced the sanction in line with the Respondent’s Disciplinary Code and the same was communicated to Mr Gcabashe. She signed the presiding officer’s report. Mr Gcabashe lodged an appeal with the MEC and the appeal was dismissed. Based on the facts presented before her, she believed that the procedure that was followed prior to Mr Gcabashe’s dismissal was fair.

4.7 Under cross examination she stated the following: Discipline is corrective but it can also be punitive depending on the nature of the offence. Mr Gcabashe was given an opportunity to present his case. On 26 & 27 of August 2020 she did not receive any telephone call from Mr Gcabashe’s representative. Secondly, the conduct of Mr Gcabashe sending sick notes to the Principal was not serving any purpose. He was supposed to send them to her. She is not cruel and would not have proceeded with the case had he sent the sick notes to her. Mr Makhanya did not attend the hearing. Mr Gcabashe waived his right to be heard.

4.8 The decision to dismiss Mr Gcabashe was informed. The witness testified at the enquiry that marks were submitted that did not tally and learners marked each other’s scripts. The examination officer also said that marks did not tally with the schedule. The departmental head testified that even the learners’ scripts were poorly marked. The learners testified that they marked the scripts. Mr Gcabashe’s conduct was wrong.

4.9 She gave Mr Gcabashe an opportunity to present mitigating factors.

4.10 Mr Gcabashe was not present at the enquiry hence his mitigating factors were not presented.

4.11 Mr Makhanya was supposed to inform her that Mr Gcabashe was hospitalised. The finding was given to Mr Makhanya and Mr Makhanya was supposed to present mitigating factors on behalf of Mr Gcabashe.

4.12 When it was put to her that a letter should have been written to Mr Gcabashe informing him to submit mitigating factors, her response was that she believed that Mr Gcabashe and his union official decided to drop the case, they refused to cooperate, they did not want to involve themselves in the case, they knew ‘’the case was damaged’’. They were given an opportunity to mitigate and submit closing arguments when she was pronouncing the verdict, it was not her problem that they were not present in the hearing.

4.13 The errors in her finding are attributed to the fact that she is human. She made corrections before report was submitted to the Appeals Committee.

4.14 She did not cover charge 2 under ‘’Analysis’’ in her report. Mr Gcabashe and his representative were present when the evidence was led and witnesses were cross-examined; in relation to charge 1, witnesses were not cross – examined and the evidence of the employer ‘’was accepted as is’’.

4.15 Mr Gcabashe waived his rights because there was no application that was made to her to postpone the case, the process was formal and he was supposed to take the process very serious. One cannot just say that he sent the documents when rules had not been followed.

4.16 Mr Gcabashe is the one who delayed the matter. In fact, she was very lenient towards him because she postponed the matter. The procedure is that an employee must submit a sick note and the affidavit. Mr Gcabashe did not attend the hearing because he thought that she was not going to proceed with the matter. The issue is people undermining the proceedings and there were learners who would have lost 2 days’ school work had she not proceeded with the case.

4.17 When she was asked if she was presented with raw marks of the learners as the evidence, her response was that it is for the employer to produce the evidence and she is not a teacher. She based her decision on the charge of assault on the witness’ testimony. The witness said that he had a good relationship with Mr Gcabashe and Mr Gcabashe earmarked him and said that he must go to the other room where he assaulted him and his shirt was torn. Mr Gcabashe did not dispute that piece of the evidence.

4.18 On re - examination she said that she expected Mr Makhanya to attend the hearing and make an application for a postponement on behalf of Mr Gcabashe on days he was sick. She stated on record that she was expecting the parties to submit closing arguments on a specific date. The Respondent submitted the closing arguments and mitigating circumstances. The procedure was followed during the hearing.

4.19 Her findings were based on the evidence.

4.20 When questioned by myself, she said that it was it communicated to the employee that they must submit mitigating factors, perhaps the employer did communicate the finding to the employee. She took it that Mr Gcabashe had waived his right.

4.21 Sizwe Zikhali testified as the Respondent’s second witness as follows: He was studying Matric in 2018. He knew Mr Gcabashe. Mr Gcabashe taught him English. On the 28th of August 2018 there was a disturbance in class when a group of learners spoke while Mr Gcabashe was writing on the board. Mr Gcabashe turned around, pointed at him and said that he must exit the classroom and wait for him outside. He did exactly that.

4.22 After the period was over Mr Gcabashe said that he must follow him to the office. He assumed that they were going to the Principal’s office because he was accused of causing disturbance during the lesson. They went to the boardroom and Mr Gcabashe closed the door once they entered the room. He asked him why he was taking advantage of him and in response he (Sizwe) asked him as to what he had done. Mr Gcabashe did not respond but tried to slap him and he ducked. Whilst he was trying to duck, Mr Gcabashe punched him on the stomach and he slowly went down. He then beat him and kicked him. He asked Mr Gcabashe what he had done. Mr Gcabashe opened the door, called someone to give him a pipe and went outside the boardroom. He followed Mr Gcabashe. Mr Gcabashe then instructed him to wait for him inside the boardroom.

4.23 Whilst he was trying to follow Mr Gcabashe, Mr Gcabashe pushed him and he leaned on the door. He grabbed him by his school shirt which got torn. There were other educators who were coming and they witnessed the incident.

4.24 On the way he (Sizwe) met the educator by the name of Mr Zondi. Because of the condition he was in, Zondi asked him what had happened. Mr Gcabashe came to them and said that he was still going to show him (Sizwe). He was angry and crying, and his shirt was torn and dirty. He left Mr Zondi and went back to class where his classmates were asking him questions. He was angry, emotional and crying and they were trying to give him support. He was still in tatters when it was approaching time to leave the school because the teacher had assaulted him.

4.25 He did not retaliate when Mr Gcabashe assaulted him. Mr Gcabashe had asked him why he was undermining him during the assault.

4.26 He went home when it was time to leave school and he explained the incident at his home. After two days his Mother was called to school to attend a meeting and Mr Gcabashe denied the allegations during the meeting. He was present at the meeting and he did not know the reason why Mr Gcabashe denied the allegations. Other people who were in the meeting were his Mother, his sister, the Principal and Mr Gcabashe.

4.27 Mr Gcabashe assaulted him.

4.28 Under cross examination, he stated that: he suffered no injuries but felt pain during the assault. Mr Gcabashe punched him and his intention was to slap him but he ducked. Mr Gcabashe then punched him on his stomach.

4.29 Mr Gcabashe did not slap him but attempted to slap him. He reported the matter to his Mother two days after the assault because he was labelled as a troublemaker or a troublesome learner and he was going to be labelled whenever there was a problem at school. Also he would be seen me as the one who was in the wrong at his home. His Mom was called to the school because the matter was serious.

4.30 He slowly went down when Mr Gcabashe was punching him in the stomach and he was also kicking him on the legs. One would have seen that the shirt he was wearing was just dirty.

4.31 He did not visit the doctor because he did not have the money and there was no evidence to show the doctor.

4.32 Zondi did not give him advice. He just spoke to him and it was time to go home when they spoke. The bell had not rung and Mr Gcabashe’s lesson was still continuing when he spoke to Zondi. The school finishes at 14h30. He did not know what was the time when he spoke to Zondi.

4.33 He did not think about reporting the matter to the police. He did not do a follow up on the matter but only explained the incident at home. It is the Principal who did a follow up.

4.34 Mr Gcabashe should have paid money for his school shirt or buy him a new one and give him a proper apology.

4.35 His story was not fabricated. His parents did not lodge a complaint with the school. They only said that Mr Gcabashe must buy him a new shirt because he was denying the allegations. He could not remember the time when the meeting with his parents took place.

4.36 The incident took place on the 28th of August 2018. Learners were writing exams at the time.

4.37 On re-examination he stated that he did not have any problems with Mr Gcabashe since Mr Gcabashe used to ask him to write on the board, and therefore Mr Gcabashe’s conduct shocked him.

4.38 His shirt was torn when Mr Gcabashe was trying to pull him inside the boardroom so that no one could see what was happening

4.39 He felt the pain after he was kicked and punched by Mr Gcabashe. He did not go and see the doctor because he did not have the money and also he did not tell his parents what had happened.

4.40 He was not aware that he was supposed to report the matter to the police.

4.41 Thokozani Mbuyisa testified as the Respondent’s third witness. He stated the following:- His position is that of a learner support agent. On the 28th of August 2018 he was going to the toilet when he heard some noise coming from the boardroom. He tried to ‘’look through the handle of the door to the boardroom’’ to see what was happening. He also tried to open the door but it did not open. He heard the voice saying “thisha ungishayelani” (translated in English ‘’teacher why are you beating me”) then he went to check Zondi. Zondi was not in his office. He also tried to check Naicker and Naicker too was not in his office. He then went back to his work station and waited for them to return to the office. Both Zondi and Naicker are Deputy Principals.

4.42 As he was waiting for them, he saw Sizwe coming outside the boardroom. He tried to call Sizwe but Sizwe did not talk to him. After that he (Mbuyisa) saw Zondi coming from the classroom. Zondi met Sizwe at the parking and they had a chat. He thought that Sizwe was reporting the incident to Zondi then. He (Mbuyisa) saw that the buttons of Sizwe’s shirt had fallen off.

4.43 Subsequent thereto Zondi and Sizwe went to Zondi’s office. Zondi called him (Mbuyisa) and asked him what he had seen. He told Zondi that he saw Sizwe coming outside the boardroom and he was followed by Mr Gcabashe. Zondi asked Sizwe what had happened and Sizwe reported that he was assaulted by Mr Gcabashe. He and Zondi took Sizwe to Naicker to report the incident. They issued a letter calling Sizwe’s Mother to school. The matter was handled by Mr Zondi and Naicker from then onwards.

4.44 Under cross examination he stated the following:- it was during the last period when the incident happened. Break time is at 11h00. He did not fabricate the story regarding Sizwe’s assault.

4.45 He could not respond when he was asked if he saw Mr Gcabashe beating Sizwe.

4.46 Sizwe was beaten badly. He (Mbuyisa) was not inside the boardroom and saw how Sizwe was beaten. He could not tell who issued the letter to Sizwe’s parents but Naicker and Zondi were in charge.

4.47 The letter was issued by the school and his (Mbuyisa’s) duty is to check that a parent is issued with a letter. The letter was reporting about the incident. He could not answer when he was asked if he saw the letter.

4.48 He reported the matter to the school management team (SMT) in his position as the learner support agent.

4.49 His name appears on the Principal’s report on page 5 of Annexure D. He did not see Sizwe in the morning but he saw that his shirt had no buttons.

4.50 He did not see what was happening inside the boardroom when he looked through the hole on the door handle during the incident. He tried to open the door and the door could not open. He then went to check Naicker.

4.51 Sizwe told him that he was punched and kicked when he was getting down. He (Mbuyisa) was with SMT (referring to Zondi and Naicker) at the time. It was not his duty to take Sizwe to the doctor. His duty is to make referrals to SMT. In this case he made the referral verbally to SMT to discuss the matter that Sizwe was beaten in the boardroom. The decision that was taken was to send a letter to Sizwe’s parents. He was not given the minutes of the meeting with SMT. Management is in possession of the minutes They did not sign the attendance register when the meeting took place.

4.52 On re- examination he stated that he heard the voice of Sizwe. He tried to open the door to check who was inside the boardroom.

4.53 He spoke to Sizwe when Sizwe was with Zondi. Since the meeting took place, the matter was handled by Zondi and Naicker.

4.54 When questioned by myself, he said that he observed that Sizwe was crying and fuming and his shirt was dirty and without buttons. The school finishes at 14h30. Sizwe and Mr Gcabashe were in the boardroom for a couple of minutes. The incident happened during the last period.

4.55 Dumisani Asmon Zondi testified as the Respondent’s fourth witness as follows:- He occupies a position of a Deputy Principal at KwaNontlevu Secondary school in KwaDukuza. He was appointed as a Deputy Principal in 2017. He knows Mr Gcabashe. Mr Gcabashe was his colleague.

4.56 On the 28th of August 2019 and between periods 5 & 6 he was performing his supervisory duties including ‘’doing walkabouts in the school yard’, and a learner came to him and said that Grade 12 supervisor by the name of Miss Dube sent him to tell him (Zondi) that he must run to the office because there was a problem between ‘’Mr Gcabashe and the learner.’’ The learner also said that Mr Gcabashe was beating ‘’a learner’’ whom he (Zondi) later discovered that it was Sizwe. He then started walking and saw a group of learners in company of Dube. He went to them to check what was happening. Dube told him that: those learners were Sizwe’s classmates and they were angry because Mr Gcabashe had beaten up Sizwe; the reason Sizwe was beaten was that Sizwe was speaking to his friend whilst Mr Gcabashe was writing on the board and thereafter Mr Gcabashe ordered him to wait for him outside the classroom; Mr Gcabashe continued teaching and at the end of his period he took Sizwe to the boardroom where the beating took place.

4.57 Thereafter he (Zondi) made his way to the office and met Sizwe who was crying along the way. Sizwe told him that Mr Gcabashe made threats to him that he would get him outside of the school premises. He then took Sizwe to the office and tried to calm him down. He called Naicker and Mr T Mbuyisa and explained to them what Miss Dube had said and what he (Zondi) had observed. After the discussion they agreed that Sizwe will be given a letter calling his parent to school on the next day.

4.58 He (Mbuyisa) was going to report the incident to the Principal but the Principal was not at school on that day. He duly reported the incident to him. He saw that his Sizwe’s shirt was open and dirty when he met him.

4.59 The correct procedure is to report the learner to the grades supervisor if the learner is misbehaving or to the Deputy Principal or any other member of management if the grade supervisor is not at school, those people will take necessary steps in pursuing the matter. That did not happen in this case because the incident was not reported Dube who was a grade 12 supervisor.

4.60 Zondi wrote a letter to Sizwe’s parent. Sizwe’s parent came to the school and unfortunately he (Zondi) was not part of that meeting. The meeting was between Sizwe’s sister and the school Principal, namely, Mr M Sithole. He (Zondi) saw that the person who was representing Sizwe’s parent in the meeting was Sizwe’s sister. He was not sure if Mr Gcabashe was invited to the same meeting.

4.61 Under cross examination, he stated the following:- There was an informal meeting which was attended by Naicker, T Mbuyisa, Sizwe Zikhali and himself during the last period on the date of the incident. They were discussing what happened during the day. Assault is a serious issue. They did not sign the attendance register during the meeting but the people who were present at the meeting appear in his report which he wrote for the Principal. There was no requirement to sign the attendance register. There were no minutes that were taken during the meeting. His report appears on page 5 of Annexure D.

4.62 On 6 March 2019 he typed the letter informing the department about the incident, upon a request made by the departmental officials who had visited the school. The report appears on page 5 of Annexure D and it is not concocted.

4.63 It is correct that it does not reflect in his report that Sizwe was beaten.

4.64 He did not see Sizwe in the morning and observed the condition of his shirt on the date of the incident.

4.65 When it was put to him that Sizwe’s shirt had no buttons in the morning, he disagreed and said that learners are not allowed to enter school premises without a full school uniform, and there are teachers who check the school uniform.

4.66 If an educator has a problem with a child, the matter has to be reported to the grade supervisor for the disciplinary processes to be instituted, and both the grade supervisor and the educator take charge of the disciplinary process. The teacher can discipline a learner who is misbehaving but also report the incident in terms of the Respondent’s Code of Conduct. In this case the matter was referred to the Principal and the Principal was going to take action as he (Zondi) had made a report about the incident.

4.67 He (Zondi) did not get Mr Gcabashe’s version because the incident took place during the last period. It was already time to go home when he finished talking to Sizwe. Mr Gcabashe had already left the school. There were no means to call Mr Gcabashe because he (Zondi) knew that the matter was going to be discussed between Mr Gcabashe and the Principal.

4.68 He was not part of the meeting with Sizwe’s parent and therefore he did not know what was discussed during the meeting. He (Zondi) wrote the letter calling Sizwe’s parent to school.

4.69 When it was put to him that Mr Gcabashe left the school late on the date of the incident, his response was that he did not see him.

4.70 He has a book that he uses to record all incidents that take place at the school. The decision to take children to see the doctors is the parents’ and not the school’s decision.

4.71 He was not in the boardroom and therefore he could not comment on whether Mr Gcabashe had beaten Sizwe. He had no knowledge how the learners got to know that Mr Gcabashe beat Sizwe.

4.72 He could not object when it was put to him that the case against Mr Gcabashe was fabricated.

4.73 His knowledge is that Sizwe was ordered by Mr Gcabashe to wait for him outside the class and at the end of the period Mr Gcabashe took him to the boardroom where the alleged assault took place, and it happened that Mr Gcabashe opened the door and Sizwe ran out of the boardroom behind him, and that is when Sizwe met him (Zondi) and told him what had happened.

4.74 Sizwe attended school on the following day.

4.75 On re-examination he said that the incident took place on the 28th of August 2019, He reported the incident to the Principal on the 29th of August 2018 and he prepared the report appearing on page 5 of Annexure D on the 30th of August 2018.

4.76 It was not possible that Sizwe could come to school wearing a dirty shirt because the uniform is checked when learners arrive in the morning. Sizwe said that Mr Gcabashe threatened that he would still to get him .

4.77 When questioned by myself, he said that Mr Gcabashe was following Sizwe when he met Sizwe and Mr Gcabashe walked past them.

4.78 Under cross examination he said that he did not call Mr Gcabashe because he wanted to talk to Sizwe first and also it is not good to call people who are involved in the conflict first. It did not occur to him that he calls Gcabashe first, unfortunately, he had to try and control the situation and Mr Gcabashe is not a child. Speaking to Mr Gcabashe whilst he was passing by would have been like adding fuel to the fire, and he did not want to cause more damage.

4.79 Amahle Hlongwa testified as the Respondent’s fourth witness as follows:- She is a student in grade 11 at Nontlevu Secondary School. She was in grade 9A in 2019 in the same school and she knows Mr Gcabashe as his English teacher from grade 9.

4.80 In September 2019 learners were marking each other’s examination scripts in class as per the instructions of Mr Gcabashe. She put the total mark after finishing marking the script appearing on page 13 of Annexure D belonging to Sduduzo Khumalo. Her name appears on top of the marks she allocated as per instructions of Mr Gcabashe. Mr Gcabashe would ask them questions and give them the correct answer and then they would do the marking.

4.81 Under cross – examination, she stated the following:- Mr Gcabashe taught her English in grades 8 & 9. She marked grade 9 scripts.

4.82 It was written on grade 9 paper that it was the exam paper. She knew what revision means and she was aware that the educator can use previous exam papers to prepare students for examinations. She does not regard the exercise of revising the paper as the examination but the paper the learners were marking was not a revision paper.

4.83 She conceded that nothing is written ‘’exams’’ on the scripts appearing on pages 13 -16 of Annexure D. What appears on the scripts is what they wrote during the examinations. They would have written the paper in their class if it was just an assessment or revision but their class was combined with grade 8 and they sat in another class when they wrote English exams.

4.84 She was marking the examination scripts and examinations were written in September. She could not remember which month she marked the examination scripts. Mr Gcabashe determined the type of assessment the learners would write.

4.85 When she was asked who told her that the paper was exams, her response was that the question paper was written “English Exams”.

4.86 The Principal instructed her to write the statement appearing on page 24 of Annexure D on the 6th November 2019. She had not obtained consent from her parent to write that statement. She was preparing for term 4 when she wrote that statement. They marked the scripts in term 4. Term 3 falls in the month of September.

4.87 She could not remember when she marked the scripts in question. She received her school report in the first week of term 4 and marks which were allocated for English subject appeared in the report. The marks appearing in the report were not the same marks which allocated to her when learners marked each other’s scripts.

4.88 Term 3 starts in July and Term 4 starts in September.

4.89 She conceded that Term 4 starts in October.

4.90 She wrote her statement in November 2019.

4.91 She is the credible witness.

4.92 On re-examination she stated that it was Mr Gcabashe who instructed her to write the total. They marked the exams in term 4. She did not fabricate the story and she was a reliable witness.

4.93 When questioned by myself, she said that she marked the exams in the month of November 2019.

4.94 Zamakhuluse Khuluse testified as the Respondent’s fifth witness. She stated the following:- She is a student in grade 11A at Nontlevu Secondary School. In 2019 she was in grade 9. She knows Mr Gcabashe. Mr Gcabashe was her English teacher in grade 9A.

4.95 In 2019 Mr Gcabashe made them to mark each other’s scripts. She remembered that she marked the Sphelele Khoza’s script appearing on page 16 of Annexure D. Her name appears on top of the paper as per the Mr Gcabashe’s instruction. She wrote the total mark on the script.

4.96 She marked the exams when they we were going to term 4 coming from term 3. It was the exam because of the sitting arrangement. They wrote exams in September because the paper was written in term 3 and they marked in term 4. Hers was marked by another learner.

4.97 The paper she marked is the same paper which she wrote during the examinations. She saw everything that she had learnt in the script she was marking. Mr Gcabashe instructed them to exchange each other’s scripts, mark them and write the marks. He gave them answers for the questions.

4.98 The statement appearing on page 25 of Annexure D is hers. She wrote the statement on instructions of the Principal. Her parents are aware that she wrote the statement and was a witness at the arbitration.

4.99 Under cross examination she stated the following:- She did not remember the date when she marked the script. They went to another school called Donview school in Stanger where they were asked questions hence she could remember that she marked Sphelele Khoza’s script.

4.100 She thought that she received her report in term 4 when they had come back from term 3.

4.101 She wrote her statement on the 6th of November 2019. She and Amahle were called to the Principal’s office and asked to write the statements. Her parents were not present when she wrote the statement. She had no knowledge why the Principal called her from class to his office on that day.

4.102 The script she marked was an informal task. Nothing reflects in the script she marked and the scripts on pages 16 – 19 that it was the exams paper.

4.103 She conceded that it is the teacher who determines the kind of assessment the students write.

4.104 On re – examination, she stated that the Principal told her the reason why she had to write a statement but she did not remember what he said.

4.105 When questioned by myself, she said that she remembered that she marked the scripts in the first week of the school reopening in term 4. She did not remember when she received term 3 report. She did not remember whether she had received her term 3 report when she marked the script.

4.106 Mzwandile Mbongeni Sithole testified as the Respondent’s sixth witness. He stated the following:- He occupies a position of Principal at Nontlevu school since 2010. He knows Mr Gcabashe. Mr Gcabashe was his colleague. He received a report from Mr Zondi that Mr Gcabashe assaulted Sizwe in the boardroom, Sizwe’s uniform was torn during the beating and Sizwe was bruised on his face. He (Sithole) then asked Mr Zondi what led to the assault. Zondi told him following:- that Sizwe has said that he was disturbing the teacher and that is why Sizwe and Mr Gcabashe were arguing, Mr Gcabashe then asked Sizwe to wait for him and thereafter he took Sizwe to the boardroom where the assault started; thereafter Sizwe left the boardroom and went to look for Dube to whom he reported that he had been assaulted by Mr Gcabashe at the boardroom; Dube and Sizwe went and reported the assault to Zondi and asked him to follow up on the incident; Zondi thereafter went to the class to find out what had happened; the learners explained that, during the lesson, other learners were laughing, and Mr Gcabashe asked Sizwe to step outside.

4.107 After listening to Mr Zondi he (Sithole) then called Sizwe who confirmed that Mr Gcabashe assaulted him because he was disturbing the class. They then called Sizwe’s parents to the school. Sizwe’s sister, Samke came to the school on the 29th of August 2018 which was the next day after the assault. She came to hear what had happened. He (Sithole)I called Mr Gcabashe to the meeting with Samke. Mr Gcabashe explained that Sizwe and other learners are very troublesome, very slow, lazy and rude. Zondi then said that he had requested for Sizwe’s parents to come and attend the meeting and Samke was standing in for Sizwe’s Mom.

4.108 On the 31st of August 2018 Sizwe’s Mother and Sizwe’s brother by the name of Scelo came to the school. Sizwe’s Mother indicated that Mr Gcabashe should have followed disciplinary measures rather than beat the child and also that Mr Gcabashe must pay for Sizwe’s uniform. He (Sithole) said that it does not work like that but disciplinary action must take its course if the educator assaulted a learner.

4.109 They then discussed the incident with Mr Gcabashe. Mr Gcabashe admitted that he called Sizwe and assaulted him because he disrespected him. He also said that it was not only Sizwe who was disrespecting him in class. He mentioned other misbehaving and troublesome learners and also stated that the whole class wrote a letter to him. It was clear that the class disliked Mr Gcabashe. He (Sithole) told Mr Gcabashe that he had made a mistake but Mr Gcabshe said that he was siding with the leaners who were disrespecting him. He also said that he should give support to him as the educator. His response was that he could not support him if he had committed wrongdoing. Mr Gcabashe then said that he was supporting the learners, he was against him and what he was doing would make the learners disrespect him. They parted when Mr Gcabashe said that he did not see anything wrong in what he had done.

4.110 He (Sithole) investigated the matter after Zondi gave him the report and he in turn reported the incident to the circuit manager. Reference is made to the report on page 4 of Annexure D. He also reported the incident to the governing body.

4.111 In September 2019 there was another incident involving Mr Gcabashe and grade 9 students. Students came back from holidays to begin term 4. The educators were asked to bring the examination marks on the first day of term 4. Mr Gcabashe’s marks were not ready and he asked him for the reason why he was not submitting the marks. Mr Gcabashe’s response was that he had not finished marking. He then asked him to come with the scripts so that he could ask other educators to assist him. He refused saying that other teachers did not like him and therefore they will not help him. He then said that he had the student teachers that would assist him with the marking. He (Sithole) told him that he had to meet with the HOD so that the marking issue could be resolved. His response was that he was going to mark and submit marks on that same day. He (Sithole) then left him to continue with the marking being assisted by the student teachers.

4.112 There were no student teachers at the time but then Mr Gcabashe said that they were going to help him. Marks were not submitted to him that week. Mr Gcabashe ‘’took the marks to be uploaded in in the computer system known as SASAMS and learners’ reports were prepared after the marks were uploaded. Mr Gcabashe did not take the marks for moderation before they were uploaded on SAMS. He (Sithole) was not too sure whether the student teachers assisted Mr Gcabashe.

4.113 After some time the exams scripts were found in the room that is known as Mr Gcabashe’s office and they were marked by the learners. They even showed the names of learners who marked them. They were September exams scripts. He (Sithole) asked the HOD to do a follow up on the matter. The HODs and the Deputy Principal went to class 9A to find out what had happened with the scripts. They came back and explained to him that it was the truth that the learners marked the scripts. He then instructed them to ask the learners to write something to the effect that the scripts were marked by them. The learners whose names appear on the scripts on pages 13 – 23 admitted that they marked the scripts and they wrote the statements. The scripts they marked are those that were found in ‘’Mr Gcabashe’s office.

4.114 As a Principal he found Mr Gcabashe to be a very difficult person to work with. He received other complaints relating to him from the Deputy Principal. It was said that he does not listen when he is given instructions or anything else pertaining to his duties. The HOD wrote a letter appearing on page 12 of Annexure D in relation to Mr Gcabashe’s conduct. The letter was addressed to him (Sithole).

4.115 The Staff Policy which is Annexure E was adopted and signed in 2015 by the SGB. It is dated 2021-02-10 on the last page which is the date when he issued a copy to someone. His signature appears on the Policy.

4.116 Under cross examination, he stated the following:- Zondi told him about the assault a day after it took place and he then started the investigation into the matter. He told Gcabashe about the terms of reference of the investigation and he asked him the questions. The outcome of the investigation was that Mr Gcabashe assaulted the learner.

4.117 He denied when it was put to him that his statement about the outcome of the investigation contradicted what he said in his report reflecting under paragraph 2 on page 4 of Annexure D. He also denied that when it was put to him that fabricated the case against Mr Gcabashe.

4.118 He also said that:- Mbuyisa was present at the meeting with Sizwe but he (Sithole) was not present thereat.

4.119 Sizwe told him that he was beaten in the face and punched in the stomach.

4.120 He did not see bruises on Sizwe’s face. Sizwe told him that he was hurt because he had bruises which he sustained as a result of the assault and that was the fundamental reason why the disciplinary process was instituted against Mr Gcabashe. Mr Gcabashe broke the law.

4.121 He did not go to the police to report the assault after receiving the report that Sizwe had bruises on his face but he notified the circuit manager.

4.122 Sizwe told him that Mr Gcabashe asked him why he was undermining him during the assault.

4.123 He understood that the disciplinary process must be quick, fair, and consistent. The disciplinary process was expeditious in this case.

4.124 The assault took place on the 28th of August 2018. He reported the incident on the 4th of March 2019 because the matter was already reported to the circuit manager.

4.125 He did not mention the meeting he held with Sizwe’s parents in his report on page 4 of Annexure D because the report to the circuit manager was a detailed one. He wrote the report on page 4 of Annexure D because he had not received any feedback from the circuit office and there were no steps taken.

4.126 He did not furnish the Applicant’s union with the investigation report after a request was made to furnish the union with it because he thought that the circuit manager sent the report to them.

4.127 He disputed that the union requested him to furnish them with the investigation report.

4.128 Despite that he recorded in his report on page 4 of Annexure D that, ‘’one could not get to the bottom of the matter when the investigation was carried because there were no witnesses’’, he decided to take the matter further because he wanted the circuit manager to conduct the investigation.

4.129 He discovered that Mr Gcabashe requested the learners to mark the scripts some time after the marks were already submitted. Subsequent thereto he asked the HOD to check if the marks on the system were correct because they were supposed to be moderated by her.

4.130 The exams marks were captured by the clerk who was assisted by Mr Gcabashe.

4.131 The normal procedure for dealing with the issue of marks at school level is that the educator will mark the scripts and submit the marks to the HOD for moderation.

4.132 The policies namely, the pre and post assessment moderation report and assessment policy are in place at Nontlevu Secondary School. He came with the post assessment report at the arbitration. The HOD did the pre moderation report and Mr Gcabashe did not bring the marks when they were requested. Post moderation report was never done. Upon the school not receiving the marks, the analysis report was done and learner reports cards were issued.

4.133 They were very shocked when they found the scripts which were not moderated. Marks were not properly calculated to be captured on SASAMS.

4.134 No marking was done at Donview school. Learners went there to attend Mr Gcabashe’s hearing. He and Mr Gcabashe were invited to attend the hearing. He was under the impression that Mr Gcabashe was also invited.

4.135 It is incorrect that they were manipulating the marks at Donview school.

4.136 Upon receiving the complaint that is mentioned in the report on page 12 of Annexure D from the HOD, he (Sithole) sat with the HOD and discussed the matter. Gcabashe was given an opportunity to be heard regarding the matter. He sent the HOD to call him to the Principal’s office so that they could consult about the matter. He received the HOD’s report on the 6th of November 2019. It qualifies as the HOD’s report notwithstanding that it is a ‘’one sentence’’ report. He has in his possession the minutes of the consultation meeting.

4.137 The procedure is that the learner will write his or her statement in the presence of a representative who is the Principal. It was the HOD and the Deputy Principal who called the learners to his office to make statements.

4.138 He gave Mr Gcabashe an award.

4.139 He thought that since 2018 Mr Gcabashe was a very difficult person and it was hard to work with him.

4.140 He denied that the problem started when Mr Gcabashe raised issues of policies that were not adhered to at Nontlevu school, for example, the issue of the pre and post assessment policy that was not in place. He also denied that Mr Gcabashe was a good educator who wanted things to happen, policies put in place and he (Sithole) saw him as the threat.

4.141 He disputed that there were no policies at Nontlevu and also that:- he fabricated a case against Mr Gcabashe, took the learners to Donview school to do the marking, in order to get him dismissed.

4.142 He and the learners were first notified to attend Mr Gcabashe’s hearing at the District office and only upon their arrival thereat they learnt that the venue for the hearing had been changed to Donview school.

4.143 When he was asked for the reason why there were no signatures of the school governing body on Annexure A, his response was that there is a full copy of the Staff Policy which is available at Nontlevu school. Annexure E is what was issued to the educators. He also said that Annexure E is a reflection of what is in the school policy. It is the summary of the Policy that was prepared by the Deputy Principal as a shorter version of the policy to make it easier for educators when they attend meetings.

4.144 He conceded that copies are made from the original document, Annexure E is not a Policy and it is not admissible as the evidence. He went on and said that the difference between Annexure E and the Staff Policy appears at the end of each documents.

4.145 Mr Gcabashe was issued with the policies when he requested them. He obtained them, read them and made a shorter version of the policy. He (Sithole) is unable to tell when Mr Gcabashe was issued with the policy but records can show the details. The policy was given to Gcabashe to make a shorter version of it.

4.146 On re-examination he stated the following:- the signed policies adopted by the school governing body are at Nontlevu school. He would disagree with a statement that there are no policies in place because that will mean that there are no rules at Nontlevu school and the person making that statement will be speaking with a broken heart.

4.147 He could not remember clearly whether the change in the venue to Donview school was because of covid infection in the district office.

4.148 He had no reason to fabricate a case against Mr Gcabashe.

4.149 Nompumelelo Cynthia Mkhize testified as the Respondent’s seventh witness as follows:- She occupies a position of the departmental head: Languages at Nontlevu school for 14 years. She has been in the Respondent’s employment for 28 years. She knows Mr Gcabashe. Mr Gcabashe worked with him at Nontlevu school.

4.150 She referred us to the answer scripts appearing in Annexure D and pointed that, on the answer script appearing on page 14 of Annexure D, the learner wrote an incorrect answer but he was allocated 1 mark, in comparison with the script on page 16 where the learner gave the same answer which is incorrect but he was not given a mark. She also referred to other similar examples and said that the students were given different marks despite having written same / similar answers.

4.151 Under cross examination, she stated that:- she was not the moderator, she did not have the question paper and the memorandum for the specific task included in Annexure D but she looked at the answers reflecting on the scripts on pages 14 & 16 of the same bundle and the marks that were allocated to the learners.

4.152 The instruments that need to be used to determine the answers are the question paper, the memorandum and the student script when moderating marks. Those instruments were not given to her for moderation which is the reason she stated, at face value, that the marking and grading is not the same for the learners’ scripts.

4.153 She was not fabricating a case against Mr Gcabashe because even the scripts in question were not brought to her for moderation.

4.154 She did not remember the date, time and the year when she saw the scripts and discovered that marks did not tally, however, she was called to the Principal’s office where the Principal asked her if she had moderated the scripts. Her response was that they were not brought to her. She further explained that, if the scripts were brought to her, she would have picked up the errors. She only saw them when they were brought to her attention.

4.155 In terms of control test exam tasks, the assessments are not the same meaning that they differ in terms of the grades. With regards to the formal test, the teacher will prepare a question paper and there will be a moderator for that paper and a memorandum. The moderator will have to look at the question paper when checking the contents of the script and compare that to the memorandum, to see if there is alignment.

4.156 The formal task or exams is marked by the educator and marks allocated will then be recorded in the learner’s reports The teacher is not allowed to give the learners formal assessments to mark but he is allowed to give them informal assessments to mark them.

4.157 Nowhere in the script on pages 13 – 15 of Annexure D is the word ‘’exams’’ appearing but it happens that the educator can examine the students and the students not record ‘’exams’’ in their scripts.

4.158 When it was put to her that the task was informal, her response was that the scripts were marked ‘’exams’’ and not ‘’informal task’’ when she saw them.

4.159 It was the first time at arbitration she heard that the students wrote an informal task. She became aware that it was the formal task when she was called, questioned about the scripts and told that they were for the exams. The first question she was asked was whether she moderated them and her response was that the scripts were never brought to her. The Principal told her that the task was formal.

4.160 Nothing reflects the total mark of 50 on the SASAMS printout, including the total marks on page 19 of Annexure A. Sduduzo Khumalo’s name appears on the same document.

4.161 She wrote two lines in the report she gave to Sithole complaining about Gcabashe but she did not remember the contents of the letter.

4.162 She indicated in the letter that Mr Gcabashe was not cooperating with the submissions and moderations and they could not work together. She was also asking for advice as to what she had to do concerning the matter.

4.163 Mr Gcabashe would tell her as well as the Deputy Principal repeatedly to wait when they approached him. In such circumstances the procedure to be followed is to call an educator and have a discussion with him or her, find out why he is submitting marks late.

4.164 She had spoken to Mr Gcabashe and told him that other educators could assist him but he refused. Also, since Mr Gcabashe is male and she is a female, she knew that she should not push the issue too much.

4.165 One can have a one on one meeting with an educator but Mr Gcabashe will not acknowledge his faults but have a last say in the matter.

4.166 She and Mr Gcabashe met on a number of occasions and there was no resolution of the issues. There was an incident where they both shouted at each other and other teachers came and said that their conduct was not professional. Her response was that it was her way of protecting herself, she would not have kept quiet during the incident.

4.167 She did not compile the report about her intervention with Gcabashe as a departmental head. She thought that she would have written a number of reports in relation to Mr Gcabashe.

4.168 The purpose of reporting to the superior would be to find a solution. She did not report about his conduct because every day there were incidents with him, and at times Mr Gcabashe would call her and say ‘’let’s have amicable solutions’’ but the they would end up not getting along whilst busy with the discussions.

4.169 The only procedure is to sit and talk to the educator to resolve the issues, and if the educator is not co-operating then the HOD and the educator will carry on working. That is the procedure that was followed in her case with Mr Gcabashe, however, she did not recommend anything because she asked for assistance.

4.170 What she meant in her report on page 12 of Annexure D is that Mr Gcabashe was not cooperating with moderations, and she needed help with the situation because she was not succeeding with him.

4.171 She did not record the meetings she held with Mr Gcabashe.

4.172 On re-examination she stated that:- the marks in question were for the examinations.

4.173 The class list on page 19 of Annexure B is for grade 9 learners for school term 2. The list on page 20 is for grade 9A learners for school term 2. The list on page 22 is for grade 9A learners for term 3. The marks appearing on the lists were used for the exams.

4.174 When questioned by myself, she said that she could not remember the term in respect of which marks did not tally but she remembered the Principal saying that ‘’she did not moderate that exams’’. She did not have the question paper for the exams in question. She looked for it and could not find it. She also checked with grade 9 educators but they said that they did not have it. The problem is that an educator will remove some information from the file when he or she is allocated another grade. She did not remember when Principal came to her with the scripts and asked her to moderate them.


THE APPLICANT’S CASE

4.175 Mr Gcabashe took an oath and gave the following evidence:- He had a clean disciplinary record prior to his dismissal. There was no investigation that was conducted prior to the charges being levelled against him. He was not given a notice of intention to be charged.

4.176 The hearing took place on 5 March 2020, 21 July 2020, 26 & 27 August 2020. On March 5 2020 he attended the hearing and it was not concluded. Covid 19 pandemic disrupted the progress of the process. He was diagnosed with depression because he had no knowledge of the charges levelled against him. The doctor booked him off-sick and that led to his non-appearance in the second sitting in July 2020. He submitted the medical certificate to his senior as well as to his union.

4.177 On 26 & 27 August 2020 he was admitted in hospital and he submitted the medical certificate to his senior together with the medical report. He believed that the hearing was still going to sit only to find that it continued in his absence. This was despite that the medical certificate indicated that he was ‘’medically unfit’’.

4.178 He was not given an opportunity to state his mitigating factors and to submit closing arguments.

4.179 With regards to charge no.1, it disturbed him that it was alleged he submitted marks which did not tally. He had no knowledge how that happened because an educator submits a question paper and a memorandum to the departmental head when learners are about to write exams. That is part of pre – moderation process. In pre-moderation process the departmental head will check the standard of the paper and also the allocation of marks to see if marks are allocated correctly, also check if there are no errors in the question paper, and also whether the marks allocated correspond to the total mark.

4.180 There is also post moderation process which is conducted once the learners have written the exams and that is when an educator will submit student scripts together with the allocated marks. The post moderation process entails checking or confirming whether the moderation has been done correctly and also if there is no mark that was missed. Once that process is completed, all the information will be allocated to the admin block where the clerks will capture the information into the system (SASAMS). The process of capturing marks into SASAMS is the final step of capturing marks by the clerks and the departmental head. Teachers only submit the information. It does not happen that marks are captured without checks done.

4.181 The total mark reflecting on the scripts on pages 13, 14, 15 of Annexure D is 50 and that was for the informal task which he conducted. In grade 9 there is ATP which is Annual Teaching Plan which shows an allocation of tasks that need to be done and completed. The ATP will guide a teacher on the tasks that he has to complete with the learners e.g. the language teacher will test learners in different areas, such as oral work, projects and prepared speech. In terms of the ATP he had conducted all the tests. He gave the learners that task to prepare them for the final exams as he had already completed all the tasks that were allocated on the ATP. He did not submit this task to the departmental head because it was an informal task.

4.182 The total mark of 50 does not reflect on the script on page 22 unlike the case with the other scripts in the same bundle because it was informal task.

4.183 He was never called to attend the disciplinary hearing at Donview school. The Principals of the schools, Nontlevu and Donview schools, are both SATU members and they get along by virtue of affiliation to the same union.

4.184 The requirements for a formal task are submission of a question paper and a memorandum to the departmental head whereas the requirements for an informal task are applying one’s knowledge as a teacher and sometimes utilizing previous exam papers. It depends on what an educator wants to achieve through the completion of the task.

4.185 With regards to charge no.2, on the 28th of August 2020 it was a period after the break when he was teaching English poem to grade 12H learners. The learner by the name of Sizwe Zikhali was in the same grade. Usually there are classes with known problematic learners and Grade 12H was one of those. Sizwe was one of the problematic learners in the class and in the whole school. Whilst he was teaching and writing on the board, doing explanations, there was very disturbing noise which started in the beginning of the period, the kind of noise which distracts the learning. As a teacher, one can be able to identify where the noise is coming from and the person who is instigating the noise. He noticed that the instigator of the noise was Sizwe and he then asked him to leave the class, wait outside next to the door, leave the door open so that he would be able to listen to the teaching. The noise died after he left the class and he was able to continue teaching and complete the lesson in peace.

4.186 When the lesson was over, he left the class and asked Sizwe to follow him. He took him to the boardroom and told him to wait there whilst he went to the office to fetch the logbook that he was going to use to record Sizwe’s conduct in class and also a template that he was going to use to write a letter inviting Sizwe’s parents to the school. Sizwe’s name was recorded many times in the log book. It was not the first time he asked Sizwe to bring his parent to school and Sizwe usually did not bring them but said he had no parents.

4.187 On his return to the boardroom he found that Sizwe was not there. He looked outside and found him talking to Miss Dube and his class teacher. He did not go close to them but stood a bit far from them. He expected them to call him but they did not until it was time to go home. Sizwe and Dube went back to Grade 12H. He was not updated at all on that day. He was expecting the class teacher and Miss Dube to give him feedback but he received none.

4.188 There was never a physical contact between Sizwe and himself. The last time he checked he had asked Sizwe to wait for him at the boardroom and he was not there on his return from the office.

4.189 He had no knowledge where Mbuyisa got it from that there was a noise inside the boardroom whilst he (Mr Gcabashe) and Sizwe were in the boardroom. He was never investigated in relation to the incident. There was no stage when the police were called to the school. He did not receive any medical report about Sizwe. He was not given any opportunity to respond to the allegations of assault.

4.190 He was the chairperson of the Disciplinary Committee at Nontlevu school and he had a list of problematic learners at school. He knew all of them and was aware of them. Furthermore, Sizwe was using drugs in school and those are some of the things that he wanted to discuss with his parents in order to assist them find a solution. He reported Sizwe a number of times to the Principal. He was not going to concentrate on Sizwe alone but continue with the classes. The situation was beyond his control. He had escalated the matter to the Principal but did not get any assistance from him.

4.191 He was confused about the testimony of the Respondent’s witnesses at arbitration in relation to the assault charge because there was no one else except him and Sizwe in the boardroom and Sizwe was no longer in the boardroom on his return. Moreover, it is stated in the report on page 4 of Annexure D that there were no witnesses in the assault case. His view is that the case against him was fabricated.

4.192 He faced many challenges at Nontlevu school which emanated from him doing well and making changes in the school. He received awards and certificates for his work performance at the school. There is also a recognition award which he received from the Principal. The ill-treatment directed at him started early in 2019 and the matter was escalated to the MEC’s office when the Principal dismissed him and two other educators.

4.193 On the 31st of December 2018 the Principal said that he did not want them in Nontlevu school on the following year. The MEC, namely, Mr Dlungwane sent Dr Ngogi Mahaye to the school to confirm the report because, at that time, they (the dismissed educators) had not been working for three weeks and they were not given duty loads whilst the other educators continued working. Dr Mahaye came to make enquiries with the Principal at Nontlevu but the Principal had left for the day. Dr Mahaye criticized the Principal’s conduct and instructed them to return to work.

4.194 It shows from reading the report on page 4 of Annexure D and the allegations of assault levelled against him that the Principal did not want them in school. They were victimized, and as a result, they lodged a grievance with Mr Buthelezi’s office. Their grievance lapsed. Seeing that they were not getting assistance, they then lodged a grievance with South African Council for Educators. There were so many plots to get him dismissed from Nontlevu school. The contents of the report and the allegations of assault were part of the ploy.

4.195 Also he and the other two dismissed educators had revealed some of the corruption that was taking place in the school and that led to them not being wanted. The Principal was being investigated in relation to such acts as at the date of the arbitration.

4.196 His unfair dismissal was one of the acts of victimization directed at him at Nontlevu High School.

4.197 Under cross examination, he stated the following:- he attended the disciplinary enquiry only once and he was invited to attend that sitting. His representative was given an opportunity to cross examine the Respondent’s witnesses but not him. The matter was not finalized on that day and was going to resume on the next sitting in July 2020. He received the notice to attend the enquiry but he did not attend on the next date(s). He submitted the medical certificate and reported his absence to the Head Master.

4.198 He did not submit the affidavit that is mentioned in the notice to attend the hearing. He failed to understand the reason why he had to submit the affidavit and he did not understand the meaning of the affidavit and that is the reason why he did not comply with the requirement to submit it. His doctor did not understand either the reason for the affidavit and he could not explain about it to the doctor. He could not contact the writer of the notice of the hearing as he had left everything in the hands of his union.

4.199 His doctor said that all the details concerning his health condition were in the medical certificate he issued to him. According to the medical certificate on page 62 of Annexure D, he was not fit to attend for work from 6 July 2020 to 7 August 2020. The matter was postponed then.

4.200 He conceded that he was notified to attend the hearing on 26 & 27 of August 2020 and further that the decision was to be taken in his absence if he did not attend the hearing. That was despite that he was unwell. He left everything in his representative’s hands.

4.201 He had no knowledge of the document appearing on pages 6, 7 & 8 of Annexure D. He did not remember Mr Buthelezi coming to Nontlevu school in company of the late Mr Zulu and Mrs Ngonyama.

4.202 He had no knowledge of the notice the Respondent sent to his union requesting to consult with the union as he was a shop steward.

4.203 He was not present in the hearing on 26 & 27 August 2020 and therefore he would not respond to the submissions that:- the presiding officer gave the parties an opportunity to present mitigating and aggravating factors, Mr Buthelezi submitted aggravating factors and he did not submit the mitigating factors because he was not present.

4.204 He denied that he waived his right to mitigate by not attending the hearing.

4.205 Other means could have been explored to ensure that he submitted the mitigating factors, for instance, the Respondent notify his union representative or they contact him if the matter was too urgent. because the Respondent is in possession of his details.

4.206 He does not think, generally, a decision can be taken in the person’s absence. A person must be given an opportunity to answer to the allegations levelled against him. A chairperson cannot hear one side and decide on the issue.

4.207 On 26 & 27 August 2020 he was on sick leave. He submitted the medical certificate to the Principal and it was the duty of the union to submit it to the employer representative.

4.208 On 28 August 2019 after the break, he asked Sizwe to wait outside because it was getting difficult to continue with the teaching in class. He was able to continue after Sizwe stepped outside.

4.209 Thereafter he went with him to the boardroom, firstly because he wanted to log an entry into the disciplinary book, and secondly he wanted to write a letter calling his parents to school.

4.210 The educators use both the log book and the disciplinary book to log entries of leaner misconduct. He would go and log the entry in the log book in the Principal’s office whilst he was still in the Respondent’s employment. He never logged an entry in the disciplinary book. What is important is that he was going to fetch the book which he was going to use to record the incident. The book is in the Principal’s office at Nontlevu school.

4.211 Sizwe’s class teacher was Mr Gumede. He was waiting for the feedback when he saw Sizwe with Miss Dube and Mr Gumede. It could be that Sizwe was telling them something and he waited for them to finish talking and then tell him what the conversation was about.

4.212 His version is what happened during the incident.

4.213 The correct procedure to discipline a learner who misbehaves in class is to record the incident and call the parent of the learner. Although it is not written down but it is something educators usually do. There are no rules and policies guiding them at Nontlevu school and therefore he did not know the procedure that Sitole said it has to be followed when a learner misbehaves. He did what he knows has to be done under the circumstances.

4.214 Sithole should have brought proof regarding the procedure he testified in relation to that the class teacher and grade supervisor will escalate the matter to the Deputy Principal or the Principal to resolve the issue of a misbehaving learner in class. Sithole just thinks and does something but and not do what is written down.

4.215 He had asked that Sithole bring the school policy with him at arbitration.

4.216 He is a seasoned educator and therefore he knows the procedure he followed in this case is a correct procedure.

4.217 He disputed that he assaulted Sizwe.

4.218 He found the log book in the Principal’s office but there was no one in the office when he got there. He was part of the disciplinary committee at Nontlevu school and was used to going to the Principal’s office to fetch the log book with the Principal’s permission.

4.219 On the date of the incident the Deputy Principals acted in the role of the Principal but he did not go and request a log book from them because, as a member of the disciplinary committee, that was something he used to do even in the absence of the Principal.

4.220 He would record incidents in the disciplinary log book. Taking a log book and record incidents is part of what the disciplinary committee does. The Principal was aware of whatever he was doing. He would report on the following day what he had done on the previous day.

4.221 Whatever was done is in the log book and he left it at school. It is the school property. He did not report the incident to one of the deputy principals. What he did was a norm and there was no complaint.

4.222 There is no evidence of assault in this case. He would not know why Sizwe was crying if indeed he was crying when Zondi met him. He had no knowledge about their conversation.

4.223 He did not speak to Sizwe’s parents regarding Sizwe. He was unaware that he had to buy Sizwe a shirt because he never met his parents. He was unaware of the meeting where Sithole and Sizwe’s parents were present and Sizwe’s parents said that he (Mr Gcabashe) must buy Sizwe a shirt. Proof must be produced to that effect.

4.224 He did not know what Sithole was saying when he said that he admitted the assault. Sizwe lied that he assaulted him. Mbuyisa’s evidence was baseless and untruthful. Mbuyisa did not see Sizwe’s shirt torn and it would have been better if the shirt was brought to the arbitration as the evidence. The Respondent’s witnesses should have opened the case and take Sizwe to the doctor to prove that Sizwe was assaulted.

4.225 There is no proof that he did not go to Sizwe and Miss Dube because of guilt. He knew what happened in the boardroom.

4.226 There is correspondence to show that they made formal requests to the Principal to have a procedure in place for guidance on a number of times. The letter that is addressed to the Deputy Principal and forms part of Annexure A is the example. It reached the Principal as per the Deputy Principal’s advices. The Respondent’s representative, Mr Buthelezi is a very good friend of the Principal and will want to defend him.

4.227 None of the Respondent’s witnesses testified that they saw him assaulting Sizwe. They all said the untruths in the evidence.

4.228 Pre-moderation and post moderation were done for grade 9A September examinations.

4.229 He disputed the evidence of Sithole that he (Sithole) came to him and requested marks for grade 9A moderation, and also that he refused to be assisted by the departmental head but said that he would be assisted by the student teachers to mark scripts.

4.230 He conceded that educators are not allowed to give learners exam scripts to mark, according to his knowledge as a seasoned educator.

4.231 It is the educator’s knowledge what the purpose of the task is when he or she gives the learners a task.

4.232 The marks for September exams had already been captured on SASAMS when he gave the students the informal task. Learners wrote exams in September 2019 and he submitted the exams scripts to the departmental head sometime in September 2020. The departmental head in turn submitted the marks for uploading into SASAMS. Capturing marks on SASAMS is the final step before the reports are issued to the learners. September reports would not have been issued if he had not submitted the exam marks. The marks would not have been captured into SASAMS if he had not submitted them.

4.233 Mkhize was generalizing when she stated in the letter appearing on page 12 of Annexure D that he was not cooperating. Her letter is dated 6 November 2019 and she had started working at Nontlevu school in May 2019 and therefore he was not sure what she meant in her statement. If one is a senior she writes a statement of that nature, that will mean he or she has made different attempts addressing the issue with a particular educator. She has not specified what submissions and moderations she was referring to in her statement, and what she did as the HOD. The exams marks would not have reached SAMS if he was not cooperating.

4.234 He was aware that the sanction for contravening section 17(1)(a) of Employment of Educators Act 76 of 1998 is dismissal.

4.235 The departmental head should have conducted post moderation when she picked up that there were errors in the marking of scripts, and the issue should have been dealt with at that particular point. It means she did not do her job when conducting the post moderation process.

4.236 The Respondent’s witnesses, Zamakhuluse Khuluse and Amahle Hlongwa’s different testimonies in relation to the paper in question showed that they were couched in their answers.

4.237 Learners would not know but only the teacher would know why two classes were combined when they wrote the paper in question.

4.238 It is the departmental head that must be asked about the whereabouts of the question paper and the memorandum for the September exams which the learners wrote. Those and the question paper for the informal task should be in her possession.

4.239 The charges against him are not substantiated but based on the word of mouth.

4.240 His dismissal was wrong and it was driven by anger coming from the Principal, hatred and politics, and the fact that he was not the member of SADTU. He heard that, since he was not SADTU member, he was going to have difficulties in Nontlevu school, of which he did encounter difficulties and escalated the matter.

4.241 He was not given an opportunity to tell his side of the story.

4.242 He followed the school procedure and reported that he was sick. There is evidence to that effect.

4.243 The presiding officer did not do right in his case. She made mistakes and it also it took long before he received the report informing him about her decision to dismiss him.

4.244 In this case the evidence was not substantiated and it shows that the decision to dismiss him was long planned. The Respondent was gunning for his dismissal. He doubts that the chairperson’s report was submitted to the MEC because it did not have a date, the letterhead and the signature and he doubts that the Minister received it in that condition. Also the contents of the report are the untruth. It is recorded in the report that he pleaded guilty to charge 2 which is not true and goes to show that the Respondent’s main aim was to dismiss him. The outcome report should reflect a letter head because it is an official report

4.245 The chairperson’s report that Dumisa stated was amended to rectify the plea and also that it was sent to the MEC was not produced at arbitration. He and his union requested that report but they were not furnished with it.

4.246 The Respondent should have contacted a doctor if there was a problem regarding the affidavit that the Respondent required him to submit. His union submitted the certificate covering the dates 27 & 28 August 2020 to the Respondent’s representative. He believed that the chairperson should have postponed the matter if there were outstanding documents from his side on 21 & 22 July 2020. Mr Buthelezi was aware he was sick as it was clear in the email correspondence. The Respondent’s conduct proceeding with the hearing was not procedurally fair.

4.247 He would not have delayed the matter because he already saw that the case against him was fabricated. The delay was caused by Mr Buthelezi because he did not want to follow the correct procedure.

4.248 On re-examination he stated the following:- he did not see the shirt which Sizwe was wearing because he was wearing a jersey and it is compulsory for the learners to wear jerseys. He did not see Sizwe’s injuries.

4.249 He never closed the door to the boardroom on the date of the incident. Sizwe was never advised to go and see the doctor or report the matter to the police station because he had no injuries and there was nothing to show that he had been assaulted.

4.250 The chairperson decided the case on fabricated stories. Marks for all formal tasks are recorded.

4.251 There was no prescript on how learners must sit when writing exams. He was not told verbally or received any letter from the departmental head informing that marks that did not tally nor was given an opportunity to respond to such claims. Also there was no investigation into the matter.

4.252 When questioned by myself, he said that he was aware of the rules with which he was charged.

ARGUMENT

RESPONDENT’S ARGUMENT

4.253 The Respondent argued, amongst other things, as follows: proper procedures were followed before dismissing the Applicant. The Applicant waived his right to present his case and submit mitigating factors.

4.254 The Applicant stated that the scripts which were marked by learners were not for September exams, however, he failed to submit the September exams scripts. He was the custodian of the scripts and should produce the September exams scripts if he still maintained that the scripts in the bundles of documents were not September exam scripts. It is not probable that learners would have been assessed twice.

4.255 The marks did not tally because they were marked by the learners and the fault should be squarely put on the Applicant who took a risk of allowing learners to mark the scripts. The marks captured did not even tally with the marks on the scripts that were marked by the learners.

4.256 The departmental head denied having received scripts from the Applicant and moderation of scripts. She only saw the scripts when she was called by the Principal.

4.257 The Applicant assaulted Sizwe and all of its witnesses gave evidence in corroboration regarding the assault charge.

4.258 The Applicant’s version that all the Respondent’s witnesses lied because they were used by the Principal was an after-thought as that version was never put to the Principal when he was on the witness stand. He failed to prove that there was a vendetta against him.

4.259 All of its witnesses were credible and reliable.


APPLICANT’S ARGUMENT

4.260 In summary the Applicant argued that his dismissal was unfair. He submitted, amongst other things, that: the Respondent failed to prove the charges;
4.261 The Respondent did not follow proper processes prior to dismissing him.
4.262 He was denied an opportunity to state mitigating factors and to submit his closing argument.
4.263 The chairperson of the disciplinary enquiry was biased.
4.264 The Respondent fabricated a case in order to dismiss him.

5. ANALYSIS OF EVIDENCE AND ARGUMENT

5.1 I have examined the evidence submitted by both parties and have duly perused the submitted Annexures. I am required to determine whether the Applicant’s dismissal was fair.

5.2 It was the evidence that the rules against assault and contravening section 17(1)(a) of the Employment of Educators Act No.76 of 1998 in relation to marks were in place. The Applicant was aware of the rules. The rules are reasonable for the efficient operation of the business of the Respondent.

5.3 The Respondent stated that the Applicant assaulted the learner, Sizwe Zikhali and the assault took place inside boardroom. Sizwe testified that the Applicant assaulted him. The Applicant denied the assault. None of the Respondent’s witnesses testified that they saw the Applicant assaulting Sizwe. The Respondent’s witness, Mbuyisa said that he heard Sizwe crying inside the boardroom. The Applicant on the other side testified that he had left Sizwe in the boardroom and went to the office to get a logbook and Sizwe was gone on his return to the boardroom. In this case we confronted with a situation whereby we are faced with two conflicting versions and it is trite that in such situations the party that has to discharge the onus must lose. Perhaps the position would have been different had the Respondent brought the educators whom the witness, Sizwe said they were coming and had witnessed the assault outside the boardroom, or the learner whom the witness, Zondi said came to him and conveyed Miss Dube’s message that he had to rush come to her and Sizwe and also said that the Applicant was beating Sizwe, or call Sizwe’s parents or anyone else who saw Sizwe being assaulted. Perhaps they would have testified that they saw the assault taking place and the bruises on Sizwe’s face as it is the version of the Respondent that Sizwe had bruises which he sustained during the assault.

5.4 In the case of Xtrata South Africa (Pty) Ltd v Federated Mining and Allied Industries Union obo Mokgotlo and Others (J937/13) (2016); ZALC JHB 390 (11 October 2016) it was stated that in an evaluation of two conflicting versions, there must be a determination of relative probabilities of each version and in so doing considerable weight must be placed on uncontested evidence.

5.5 There was no real evidence that was produced at arbitration, for example, the t-shirt that Sizwe was wearing that the Respondent stated got torn and was dirtied during the alleged assault. It was the evidence that Sizwe did not go and see the doctor after the assault and therefore there are no medical records supporting the version that he sustained bruises on his face during the assault. It was also the evidence that the incident was not reported to the police and therefore there is no case reference number to support the Respondent’s version. There is no incident report or any other document that was submitted at arbitration as the evidence to show someone immediately reported the assault of the learner, Sizwe by the Applicant. The documents the Respondent seemed to rely on to support its case are the reports which both the Principal Sithole and Deputy Principal Zondi wrote +/- 6 months after the alleged incident occurred.

5.6 The Respondent’s evidence is marked with numerous inconsistencies and / or contradictions to render it probable. To name the few, Sizwe testified that the Applicant came and said that he was still going to get him outside the school and that was said whilst he was still speaking to the witness, Zondi. Zondi did not confirm this piece of the evidence but stated that Sizwe told him that Mr Gcabashe was threatening to get him outside of the school, and that is what Zondi recorded in his report on page 5 of Annexure D. It seems bizarre that the witness would elect to state that he was told about the threat and not say that he heard the assailant threatening to further assault the learner outside the school.

5.7 Sizwe further testified that he suffered no injuries during the assault and he did not go and see the doctor because he did not have the money and there was no evidence to show the doctor. This is in direct contrast with the Respondent’s evidence that Sizwe had bruises on his face which he sustained during the assault.

5.8 I find it strange that none of the people Sizwe met, including both deputy principals, the student assistant agent, the educators gave Sizwe the advice to go and open the criminal case against the Applicant and also to go and see the doctor in the given circumstances. It was the Respondent’s evidence that Sizwe was assaulted and threatened with further acts of assault, he had bruises on his face, and he was punched in the stomach and kicked on the legs. Mbuyisa testified that Sizwe was beaten badly. The reaction of all the people who met Sizwe immediately after the assault is also bizarre. Their conduct is inconsistent with what the people would normally do when a learner or anyone else for that matter has been assaulted. The mostly likely thing to do is to assist a a victim get medical attention and open a case with SAPS or advise him and his parents to do so, especially in a country where GBV is so rife and must be reported to authorities, get the culprits to book and the public discouraged from committing such a despicable crime. Instead in this case there are not even school records showing a report was made about the assault of a learner by an educator on the same day of assault or immediately thereafter and / or that immediate action was taken against the culprit to serve justice to the learner and dissuade others from committing similar acts of violence. Instead, the alleged offender was left to continue with his duties and approximately a year later the Respondent then decides to charge him in circumstances where no records even exist pertaining to the alleged assault.

5,9 It also does not make sense that Mbuyisa would not shout and demand the door to the boardroom be opened when he heard the learner crying, instead he decided to go and look for deputy principals and then wait for them to come back to their offices, and in the meanwhile the assault was continuing in the boardroom. This kind of behaviour / reaction leaves much to be desired.

5.10 Mbuyisa testified that he saw Sizwe coming outside the boardroom followed by Mr Gcabashe. Sizwe said that the Applicant went out of the boardroom and he followed him, and that is when the Applicant grabbed him by his shirt and was trying to pull him back inside the boardroom. He also said that the people who were coming witnessed that incident. The question I ask myself is how is it possible that Mbuyisa did not witness the assault which was happening right outside the boardroom in circumstances where he saw Sizwe leaving the boardroom, and also how is it possible that he saw Sizwe coming outside the boardroom first and yet Sizwe’s evidence is that the Applicant walked out first and he (Sizwe) followed him.

5.11 It also does not make sense that neither of the Deputy Principals summonsed the Applicant to the office and question him about the assault and threats of further acts of assault in circumstances where, according to the testimony of Zondi, Sizwe was scared because the Applicant had threatened to ‘’still get him’’ outside the school. This is inconsistent with what would be expected of the persons in the position of authority and entrusted to ensure safety of the learners in the school. None of them thought about confronting the alleged offender to allay fears of the learner who was about to leave school and go home, none of them thought about taking a picture of the shirt Sizwe was wearing. It also did not occur to the deputy principal Zondi to also include in his report appearing on page 5 of Annexure D that Sizwe told him that he was assaulted and also that he and other people who met Sizwe saw that his shirt was torn and dirty. I find that strange especially because the assault and threats of assault would have been the reason Zondi compiled the report in the first place.

5.12 I find the reasons given by Zondi why he did not call the Applicant and question him in relation to the incident not plausible, and they kept on changing, from that it was because he finished late talking to Sizwe and the Applicant had already left, to that he had to try and control the situation and the Applicant was not a child. He further stated that he did not speak to Gcabashe when he passed by whilst he was talking to Sizwe because doing so would have been like adding fuel to the fire and he did not want to cause more damage. This is inconsistent with the normal reaction of a person in a position of authority confronted with the learner who was crying and scared of being subjected to further assault upon him leaving the school. There is no evidence that Zondi or both deputy principals, in possession of such disturbing information, even tried to contact the Applicant and enquire as to what had happened immediately after the incident or admonish him at the least. The Applicant had committed a serious crime, was threatening to further the acts of assault but no one thought it was wise confront him, nip it in the bud and discourage further acts of assault. This also is bizarre.

5.13 The witness, Sithole said that he spoke to the Applicant about the incident a day after the assault and the Applicant admitted having assaulted Sizwe and further stated that the reason for the assault was because Sizwe was undermining him. The Applicant denied this piece of the evidence. It seems strange that this important piece of the evidence does not appear in Sithole’s report on page 4 of Annexure D, instead Sithole recorded that, ‘’when investigating the matter, one could not get to the bottom of it because there were no witnesses during the assault as it was supposedly committed in a secluded area at school inside the boardroom.’’ The question I ask myself is why would Sithole record such contrary finding in his report in circumstances where the alleged perpetrator had admitted guilt to him, and also in circumstances where there were people who had said that they saw Sizwe’s shirt was torn and dirty, and also Sizwe had bruises on his face and was badly beaten. None of that crucial information appears in both reports of the Deputy Principal and the Principal and the question I ask myself is:- ‘’why the omission of that crucial evidence?’’

5.13 In my there is no credible evidence presented to counter the Applicant’s that he did not assault or threaten to assault a learner, Sizwe Zikhali. The Respondent’s witnesses gave lot contradicting / inconsistent evidence pertaining to what they saw, observed or heard in relation to the incident. Even the evidence each witness gave was contradictory. Sizwe testified that he suffered no injuries during the assault and he did not go to the doctor because he had no money and there was no evidence to show the doctor. This is in direct contrast to the evidence of Mbuyisa that Sizwe was beaten badly, and also the evidence that he had bruises on his face. The question I also ask myself is how did it happen that other people saw bruises on Sizwe’s face and others did not see them including Sizwe. It is my view that the Respondent’s version regarding what happened on the date of the incident leaves so much to be desired. It is riddled with so much improbabilities.

5.14 Considering all the above, I am persuaded to conclude that the probabilities are that the Applicant’s version that he did not assault the learner, Sizwe Zikhali is more probable than that of the Respondent that he did. In the circumstances, I therefore find that the Applicant did not breach the rule against assault.

5.15 With regards to the second charge, it was common cause that the scripts which appear in Annexure A were marked by the students. The Respondent led the evidence that the scripts were for September 2019 English examination. It was common cause that the leaners were not allowed to mark examination scripts and there were discrepancies in the marks recorded in the scripts which appear in Annexures A & D.

5.16 The Applicant disputed that the scripts were for the examinations and said that they were for an informal task. It was common cause that learners are allowed to mark scripts for the informal task.

5.17 The first part of the enquiry is to establish whether the scripts in question were for September 2019 English exams. The Respondent’s witnesses, Amahle and Zamakhuluse who happen to be part of the students who marked the scripts in question gave contradictory evidence regarding whether the task was formal or informal. Amahle said that it was the exams because it was written on the paper that it was the exams. Zamakhuluse stated under cross examination that it was the informal task that she marked.

5.18 The Respondent suggested that the total mark for term 3 exams was 50 yet the total mark of 50 does not appear in the print out of the SASAMS report reflecting marks for term 3 which is the September 2019 examinations. The marks allocated to the learners reflecting in the scripts in both Annexures A & D do not reflect in same printout.

5.19 Marks do not appear in some of the scripts, for example, on page 20 of Annexure A nothing reflects for the learner Zinhle Ayanda Gumede. The total marks reflected in some of the scripts are not the same yet it is reasonable to believe that the learners in the same grade wrote the same paper, and at the least the total marks should correspond. In Sduduzo Khumalo’s script it reflects two sets of marks allocated for the work and two sets of total marks i.e. in the documents on Annexure D, it reflects marks 25 out of 50 on page 13, and 10 out of 20 on page 14. In Nonhle Mthembu’s script it reflects 12 out of 20 on page 42; and in Mona Sandile’s script, it reflects 5 out of 20 on page 46. There is a clear discrepancy when it comes to the allocated marks and total marks and this begs the question: ‘’are the scripts in question for one assessment which is September 2019 English exams? My view is that they are not given the discrepancies.

5.20 It was the Respondent’s evidence that learners from two classes sat in a combined class which proves that they were writing the exams. The witness, Amahle said that her class grade 9A sat with grade 8 yet the scripts in Annexure D belong to the learners who were in grades 9A and 10E which contradicts the Respondent’s version. There is no script for grade 8 learner in all the bundles handed in. Furthermore, other scripts bear the school stamp dated 2019-11-07 and others do not and the question I ask myself is why is it so? To me, clearly the evidence in the scripts does not take the Respondent’s version any further in circumstances where it is riddled with all these discrepancies.

5.21 The Applicant stated that the work was an informal task and its purpose was to prepare the learners for the final examinations. The Respondent has not produced the evidence of moderation of the scripts in question yet it gave the evidence that it is the requirement that exams must be moderated. The Respondent stated that the Applicant did not give the scripts to the moderator but the Respondent has not or failed to give satisfactory evidence on how it came about that marks were recorded in the learners’ reports without the moderation process having been conducted, and also produce the evidence that changes were made to the marks after it established that incorrect marks were uploaded on SASAMS. I cannot fathom how marks would be released to the learners without ensuring that they were awarded appropriately and consistently, and also that changes would not be made to correct the incorrect figures.

5.22 Both parties stated that all formal assessment marks are uploaded on SASAMS and thereafter recorded in the learners’ reports. As alluded above, the marks reflecting in the scripts in question are not the same as those that appear in SASAMS printout produced for 2019 September exams (Term 3).

5.23 The Respondent’s witness, Zamakhuluse Khuluse testified in corroboration of the Applicant’s version that the script she marked was for an informal task. The Applicant stated that he gave the departmental head the September 2019 exam scripts and she moderated the exams. The Respondent denied those allegations and said that it was the Applicant together with the clerk who uploaded the marks on SASAMS. In circumstances where we are faced with two conflicting versions, regarding the uploading of marks on SASAMS, one would have expected the Respondent to at least bring the clerk to testify, thus clarify who gave her the marks to upload into SASAMS and which marks she uploaded. Instead, the Respondent brought the departmental head who testified that she was not the moderator and she learnt about the scripts in question after the marks were uploaded on SASAMS and the learners having been issued with their reports already. Mkhize testified that the scripts were marked ‘’exams’’ and not ‘’informal task’’ when she saw them. None of the scripts the Respondent brought at arbitration are marked ‘’exams’’. It certainly did not bring the scripts which Mkhize saw.

5.24 The testimony of Mkhize did not take the version of the Respondent any further, especially in circumstances where she could not remember when the Principal came to her with the scripts in question and asked her to moderate them. Also, there is no evidence that anything was done, perhaps, confront the responsible educator with the issue immediately upon establishing the improper conduct or get the marks moderated and thereafter change those on SASAMS, inform the learners about the changes and explain why they were made. That would be the most sensible thing to do in the circumstances but the Respondent elected not to act expeditiously deal with the matter. It waited until November 2019 to take action against the educator. The question I ask myself is why would the Respondent elect to take no action immediately and / or fail to resolve the issue of marks as would be expected, thus allow the academic integrity to be compromised, if it is true that the scripts in question were for September English examinations. To me it does not make sense.



5.25 The Applicant disputed that the scripts in question were for September 2019 examinations. There is no credible evidence to counter his evidence.

5.26 Considering all the above, I find that there is no satisfactory evidence that that the Applicant submitted marks reflecting in the scripts in question for September 2019 exams. What is stated in the charge that ‘’…marking was not done and marks do not tally’’ is contradictory and makes no sense, and there is glaring lack of evidence that September examination marks for grade 9A were marked by the learners in class.

5.27 In the circumstances I am led to conclude that the probabilities are that the Applicant did not conduct himself in the manner described in the charge and as such he did not contravene section 17(1)(a) of the Employment of Educators Act No.76 of 1998.

5.28 I accordingly find that the Applicants’ dismissal was substantively unfair.

5.29 With regards to procedure, it is the evidence that the chairperson of the disciplinary enquiry recorded a plea of guilty instead of ‘’not guilty’’ in her disciplinary hearing outcome report. She stated that she gave both parties an opportunity to submit the mitigating and aggravating circumstances when she was pronouncing the verdict and it was not her problem that the Applicant and his representative were not present in the hearing. This is direct evidence that the Applicant was not afforded an opportunity to give his closing argument and submit mitigating factors. The Applicant submitted that the chairperson was biased. It is trite that bias includes the perception of bias. In this case the evidence is overwhelming of the perception of bias on the part of the chairperson in her conduct of the disciplinary process.

5.30 The Respondent stated that the Applicant was given an opportunity to mitigate yet no proof was produced at arbitration that indeed he was given that opportunity. The chairperson’s finding does not reflect either that he was afforded that opportunity. The Respondent should have ensured that the Applicant was made aware of the guilty finding and also afforded him an opportunity to state mitigating factors. Sending an email to him or his union would have been an option to achieve that. Giving an employee an opportunity to mitigate is the requirement of the law and it is clear that Applicant was denied that opportunity.

5.31 In the circumstances I find that the Respondent committed irregularities with regards to the procedure.

5.32 I accordingly find that the Applicants’ dismissal was procedurally unfair.

Relief

5.33 I have carefully considered the options of the remedies available to an unfairly dismissed employee as stated in section 193(1) of the LRA as well as the effect of the provisions of section 193(2) before deciding on an appropriate remedy. In Nel v Oudtshoorn Municipality & Another (2013) 34 ILJ 1737 (SCA) the court held the following:- Reinstatement is the primary remedy in unfair dismissal disputes. It is aimed at placing an employee in the position in which he would have been but for the unfair dismissal. It safeguards the workers’ employment by restoring the employment contract.

5.34 In terms of section 193 (2) of the LRA the arbitrator must require the employer to “reinstate or re-employ the employee unless:-

(a) The employee does not wish to be reinstated or re-employed;
(b) The circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;
(c) it is not reasonably practicable for the employer to reinstate or re-employ the employee;…….”

5.35 In DHL Supply Chain (Pty) Ltd v De Beer NO & Others (2014) 35 ILJ 2379 (LAC) the LAC held that core equitable values demand that a worker who is not proven to be guilty of dishonesty should not forfeit a valuable and scarce employment opportunity and that is precisely the reason why reinstatement is the primary and default remedy unless displaced by factors that serve to outweigh its underlying rationale, namely intolerability or impracticability and that those factors set high thresholds. The Labour Court reiterated the same position in the recent judgment of Jonas v SASSA (PR68-14)

5.36 It seems to me that the appropriate remedy in the circumstances of this case is to order reinstatement of the Applicant with 10 months back pay in the amount of R294 490.00 (R29 449.00 x 10 months’ salary = R294 490.00). I arrived at the amount of back pay having considered that the Applicant was dismissed in the period of the covid 19 pandemic when it was almost impossible to deal with cases and resolve them expeditiously, and he was also responsible for the delay in the finalization of the matter.



6. Award


6.1 The dismissal of the Applicant, MV Gcabashe was substantively and procedurally unfair;
6.2 The Respondent, Department of Education – KwaZulu Natal is ordered to reinstate the Applicant retrospectively to his former position as level 1 educator from the 9th of March 2021, this being the date of dismissal of the Applicant;
6.3 The Respondent is directed to pay the Applicant his back pay in the amount of R294 490.00 on or before the 15th July 2022;
6.4 The Applicant shall tender his services within 48 hours from the date of receipt of this award.


Nonhlanhla Dubazane
ELRC Senior Commissioner