ELRC654 -19/20GP

Case Number: ELRC654 -19/20GP
Commissioner: Luyanda Dumisa
Date of Award: 18 August 2022

In the ARBITRATION between

SAOU obo Smith
(Union/Applicant)

And

Department of Education -Gauteng Province
(Respondent)


DETAILS OF HEARING AND REPRESENTATION

1. The arbitration proceedings were initially set down for hearing on 20 November 2020, 20 April 2021,07 May 2021, and 02 March 2022, and it was finalised on 28 July 2022 at Gauteng Sedibeng East District offices.
2. The Applicant, Francois Smith (Smith) was present and he was represented by Charmaine Trent (Trent) an official from SAOU.
3. The Respondent was represented by Matodi Modise (Modise) a Labour Relations Officer in the Respondent.
4. The inspection in loco was done on 20 November 2020 and the bundles of documents were submitted by both parties. The Applicant's bundle is marked B and the Respondent's bundle is marked A.
5. The parties requested to submit their closing arguments on 03 August 2022, seven days from the date of conclusion of the arbitration proceedings.
6. The arbitration was held under the auspices of the ELRC in terms of its Constitution. The proceedings were both digitally and manually recorded.
7. The interpretation services were provided by Musa Myeza (Myeza)

ISSUE TO BE DECIDED
8. I am required to determine whether there was an unfair labour practice in the conduct of the Respondent against the Applicant. If yes, I must decide on the appropriate remedy.

BACKGROUND TO THE DISPUTE
9. The Respondent's mandate is to provide compulsory basic education to learners in Gauteng Province at Vereeniging Milton Primary School. The Applicant is employed as an Educator in terms of the Employment of Educators Act 76 of 1998.
10. He was charged with the following allegation:
Allegation 1
It is alleged that on 09 May 2018 while on duty at Milton Primary School you assaulted LM,
a Grade 4 learner by slapping him on his face and pushing him.

In view of your actions, you are thus charged with misconduct in terms of section 18(1)(r) of the Employment of Educators, Act 76 of 1998, as amended.

11. The Applicant was found guilty of the above charge and he was issued the following sanction:
One month suspension without pay in terms of section 18 (3)(f) of the Employment Act,( Act 76 of 1998) as amended.

12. On Inspection in loco done on 20 November 2020. The following were the common cause:
13. The preliminary investigation was conducted by the school principal, Pretorius.
14. On 09 May 2018, the Applicant came from the Tuck shop when he called LM who was misbehaving at the netball court. The allegations that the Applicant assaulted LM arises from this interaction.
15. This assault is alleged to have occurred at the netball courts which are opposite Van Jaarsveld's classroom. That Van Jaasrveld was in class at the time of this alleged incident but did not see the interaction between the Applicant and LM.
16. Motluhi was seen on the camera footage standing at the corner watching the interaction between the Applicant and his friend, LM. A written statement was made by M of what he witnessed.
17. There was no other camera that was facing the netball courts where the incident is alleged to have happened.
18. The Applicant challenged the month’s suspension as unfair labour practice.

SURVEY OF EVIDENCE AND ARGUMENT
Applicant's case
19. The Applicant is challenging the fairness of suspension without pay.
20. He relied on his own testimony and that of Michelle De Jager (De Jager), Pricilla Lottering (Lottering) and Dan Van Jaarsveld (Van Jaarsveld).
21. The Applicant stated under oath that he was informed on 18 May 2018 that a learner, LM accused him of slapping and pushing him on 09 May 2018. The Principal, Pretorius, l conducted the investigation.
22. The PA to the principal took the statement of the learner and he also provided his statement.
23. That he was found guilty of shouting at LM and he was issued with a written warning.
24. He said he was on his way from the tuck shop when he noticed some boys were not behaving appropriately, he told them to get on the line. The other boys did get on the line but LM refused.
25. He called LM and he came to him mockingly into his private space that's when he stopped him with his hand, LM clicked his tongue and he instructed him to bring his merit book.
26. He said he was punished twice in that on 22 May 2018 he was issued a written warning by the Principal for shouting at Letlotlo and on 5 June 2018, he received a letter from the district office to respond to the allegations that he assaulted LM a grade 4 learner by slapping him on his face. That he responded and denied the allegations.
27. He was shocked to hear in the disciplinary hearing that the warning that was issued by the principal was retracted as she did not have the power to discipline him on the assault charge.
28. During cross-examination, he said he did not consider that LM would come into his private space when he called him. He said LM was crying because he did not want to get a demerit.
29. That the hearing that found him guilty of shouting at LM and not for assaulting him was approved by the IDSO.
30. Lottering testified under oath that she is the Personal Assistant (PA) to the Principal of Milton Primary School. On 09 May 2018, Mrs Maphutsi informed her that the Applicant had assaulted her son LM. A statement by LM was submitted and this was given to the Principal upon her return.
31. She said LM was upset but she did not see any marks.
32. That she scheduled a meeting for the Principal and LM’s parents on 25 July 2018.
33. During cross-examination, she stated that she did not witness the interaction between the Applicant and LM, that LM was upset when he came to report to the office at approximately 14:00 and that she did not see any bruises on him.
34. De Jager testified that she came to Milton Primary School in 2019. That LM was upset with her for giving him a demerit for not doing homework and a meeting was held with his parents. The parents affirmed that they would help with homework.
35. During cross-examination, she stated that LM was a quiet learner and he did not have behavioural issues. That there is nothing she could talk about LM’s behaviour in 2018.
36. Van Jaarsveld testified that he is a teacher at Milton Primary School and that in 2018 he was teaching in classroom 72B opposite the netball courts.
37. On 14 May 2018, the Principal came to his classroom and asked if he witnessed the assault incident that involved the Applicant and LM. He responded that he did not, as he was not aware of any alleged assault. In the past, if something happened on the netball courts he would have heard and the learners would have made noise.
38. During cross-examination, he stated that he cannot tell if the Applicant assaulted LM but he knew the Applicant would not do that. He stated that he heard about the allegations only on 14 May 2018.
39. The Applicant representative argued that the dispute referred by the Applicant is that the finding and the sanction given to the Applicant were unfair.
40. The Respondent had not found the Applicant guilty of assault after the investigation.
41. The failure to cross-examine implies acceptance of the witnesses' testimony. The failure of the Respondent to call witnesses who were there when the alleged assault was committed implied that the Applicant cannot cross-examine them or put a version to them.
42. The evidence given by the Applicant and his witness was not challenged by the Respondent in that no witnesses were put on the stand to talk about the allegations against the Applicant.
43. The Respondent's conduct constituted double jeopardy.

Respondent's case:
44. The Respondent contended that the Applicant's sanction was fair. The Respondent relied on the testimony of Julanda Pretorius (Pretorius) to substantiate its case.
45. Pretorius testified under oath that she is the Principal of Milton Primary School. On 10 May 2018, she was informed of the assault allegations against the Applicant and she did the preliminary investigation into these allegations as per the instruction of the Institutional Development Officer.
46. That LM in a meeting that was held with his parents stated that the Applicant shouted at him and slapped him.
47. That she and the School Governing Body official namely Assegai, looked into the camera footage and no camera was facing the netball courts. In one of the footage, they saw M who was waiting for LM at a corner watching his friend and the Applicant. They took his written statement and he stated that he saw the Applicant shouting at LM who was crying and the Applicant's hand was on his shoulder.
48. That the Applicant in his statement mentioned that he confronted a learner who was misbehaving and that the learner was not listening to him. That the Applicant pleaded guilty to shouting and was issued a written warning for this because it was not professional conduct. The Applicant was not found guilty of slapping the learner.
49. The father of the learner was angry and used racist remarks and accused her of being biased.
50. During cross-examination, she stated that the Applicant was not found guilty of slapping LM but for shouting at him. That the warning was for the Applicant's unprofessional conduct of shouting at a learner. That in her preliminary investigation the learner whom they saw watching the incident between LM and the Applicant was M. M stated that the Applicant was shouting at Letlotlo, his hand was on his arm and he was crying.
51. That the Applicant did not mention that he touched LM in the preliminary investigation and that if LM came to the Applicant's private space the Applicant was supposed to walk away.
52. The Respondent's representative argued that the Applicant was found guilty of slapping and shouting at LM and he was issued with one month's salary suspension and a final written warning.
53. The Applicant was the one who called LM and he stopped him with his hand claiming that he was invading his privacy. This is evidence that he pushed him and was violent therefore, he assaulted LM by pushing him and shouting at him.
54. The Applicant's witnesses were irrelevant in that they did not witness the interaction between the Applicant and LM. Although M was not called to testify he was the only eyewitness in this case and he was seen on camera footage standing on a corner observing the incident between the Applicant and LM.
55. There was no double jeopardy because the Respondent communicated to the school that it did not have the powers to deal with assault cases in terms of sections 17 and 18 of the Educators Act and that the warning was retracted.

ANALYSIS OF EVIDENCE AND ARGUMENT
56. Section 185 provides that every employee has a right not to be subjected to unfair labour practices.
57. Section 186(2)(a) of the LRA describes an unfair labour practice as any act or omission that arises between an employer and an employee amongst other things involving unfair conduct by the employer relating to promotion, demotion, or training of an employee or relating to the provisions of benefits to an employee.
58. The ELRC through the Collective Agreement extended its jurisdiction to allow it to deal with the enforcement of matters dealt with in the Basic Conditions of Employment Act 75 of 1997.
59. Section 138 of the LRA requires me to issue an arbitration award with brief reasons. What follows is a summary of evidence and arguments presented at the arbitration relevant to my findings.
60. The Applicant's version was that he did not assault LM but the latter was misbehaving in that he refused his instruction and when he called him, he mockingly came towards him to invade his privacy which he had used his hand.
61. Respondent's version was that the Applicant was the one who called LM and he stopped him with his hand claiming that he was invading his privacy. This is evidence that pushed and shouted at LM and was violent therefore, he assaulted him.
62. The most probable version is that the Respondent that its conduct did not amount to unfair labour practice for the following reasons:
63. The Applicant's version is not true and accurate in that he said he blocked LM with his hand because he was invading his private space by coming closer to him. This version changed in argument to be that he had put his hand on LM’s shoulder/ top arm because he was rolling his shoulder and not standing still.
64. If one goes with the first version it appears that the Applicant had assaulted LM because he was invading his private space and which is strange considering the learner's grade at the time. On the second version, one can deduce in light of the aforesaid that the Applicant is making a cover-up.
65. The Applicant is the one who called LM and when he was coming to him, he alleged that he had to stop him from invading his private space, this makes it probable that he assaulted LM when he laid his hand on him.
66. It is also not disputed that the Applicant was shouting at LM when he spoke to him which is unprofessional conduct. Therefore, based on this level of unprofessionalism, it flows that the Applicant is likely to have committed the misconduct.
67. The statement made by M confirmed that the Applicant laid his hand on LM, that he was shouting and that LM was crying. This shows the probability that the Applicant had assaulted LM to warrant disciplinary action being taken by the Respondent.
68. The Applicant argued that a failure to cross-examine implies acceptance of the witness's testimony. The failure of the Respondent to put witnesses who were there when the alleged misconduct was committed implied that the Applicant could not cross-examine them or put a version to them.
69. The fact that the Respondent did not call a particular witness does not result in an adverse inference, since the Applicant bears the onus of proof that the Respondent's conduct amounted to unfair labour practice.
70. It is trite law that the person who bears the onus of proof on a balance of probabilities, a probability must exist not from speculations but must rest upon a reasonable and solid foundation created by either direct or indirect evidence gathered from reasonable inferences which are not in conflict with, or outweighed by, the proven facts.
71. The undisputed facts in this matter are that the Applicant had his hand on LM, that he was shouting at him and the latter was seen crying. It is improbable that LM would cry for a touch or placing simply because the Applicant placed his hand on his shoulder. Notably, the shoulder is very close to the face for a hand that had slapped the face to land on the shoulder.
72. Although M was not called to testify as the only eyewitness in light of the facts of this case as he was seen on camera footage but he made a written statement regarding what he witnessed.
73. The Applicant's witnesses' testimony was speculative in that if LM was assaulted by the Applicant they would have seen marks or heard, yet they did not see the Applicant's interaction with LM.
74. Moreover, their testimonies did not denounce the probability that the assault may have taken place since they did not see the Applicant's interaction with LM.
75. I now turn to determine whether the Respondent’s conduct amounted to double jeopardy.
76. The Applicant argued that the Respondent’s conduct was double jeopardy in that he was charged twice for the same offence which he was given a written warning for. He stated the school disciplinary hearing found him guilty of shouting at a LM and issued him a warning for this. He was not told that the warning was withdrawn. He believed that the matter was over until he was charged.
77. The Respondent contended on the other hand that it was not double jeopardy, because the school did not have jurisdiction to decide on the assault case in terms of sections 17 and 18 of the Employment of Educators Act 76 of 1998.
78. The doctrine of double jeopardy in the employment context provides that an employer may not subject an employee to a second disciplinary hearing after a final decision was reached at an earlier disciplinary hearing. Moreover, the doctrine prohibits multiple sanctions for the same misconduct. Simply put it provides that it is unfair to expose an employee to numerous disciplinary proceedings arising from the same complaint in which a final decision was made or where the employee was acquitted.
79. The Applicant was charged with assaulting a learner in terms of section 17 of Employment of Educators Act 76 of 1998 as amended.
80. The Applicant did not show that the school was clothed with the necessary jurisdiction to determine the assault case even though the preliminary investigation found him not guilty of slapping LM.
81. Therefore, the Respondent's submission is acceptable that the school did not have the necessary jurisdiction hence the Applicant was asked to make submissions why the disciplinary action should not be taken against him in line with the Respondent's processes.
82. The Applicant party through its evidence failed to show that the Applicant acted loco parentis and observed the paramount interests of the child learner, LM.
83. The Respondent's conduct to suspend the Applicant for one month without pay was justifiable and it did not amount to unfair labour practice.
84. The Applicant failed to discharge his onus of proof on a balance of probabilities that the Respondent’s conduct amounted to an unfair labour practice.

AWARD
85. The Applicant's (Francois Smith) claim of unfair labour practice by the Respondent (Gauteng-Department of Education) is hereby dismissed.


Commissioner: Luyanda Nkwenkwe Dumisa
Sector/ Industry:Public Education