ELRC932-21/22WC

Commissioner: Jacques Buitendag
Case No.: ELRC932-21/22WC
Date of Award: 9 November 2022

In the Arbitration between:


NAPTOSA OBO I AVONTUUR
(Union/Applicant)

and


WESTERN CAPE EDUCATION DEPARTMENT (WCED)
(Respondent)

 
PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. The arbitration hearing under the auspices of the Education Labour Relations Council (ELRC) took place on 2 and 9 September-; and 21 October 2022 in Vredenburg. The applicant, Ms. I Avontuur was represented by Ms. Harris, an official of NAPTOSA. Ms. J Bergsted represented the respondent, the Western Cape Education Department (WCED). The proceedings were digitally recorded.

2. At the conclusion of the arbitration the parties agreed to submit written closing arguments by no later than 28 October 2022. I have received the submissions of the parties on this day.

THE ISSUE IN DISPUTE

3. I must determine whether the respondent fairly dismissed the applicant. If the dismissal was unfair, I must determine the appropriate remedy.

BACKGROUND TO THE ISSUE

4. The applicant was employed as a Post Level 1 Educator at Eden Primary School since 1992.

5. The applicant was dismissed by the respondent for misconduct on 10 February 2022 after her appeal has failed. The allegations that resulted in her dismissed are based on section 18(1)(r) of the Employment of Educators Act 76 of 1998 (EEA). This section reads as follows: “(1) Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she – (r) assaults, or attempts to or threatens to assault, another employee or another person.” The applicant was found guilty of assaulting three grade 3 leaners during 2021. The applicant has allegedly Sellotaped a facemask onto a learner’s face during April 2021 and she allegedly hit the same leaner against the head with her hand. The applicant has allegedly also assaulted another leaner by hitting her with a ruler against her back. The applicant has further allegedly assaulted a different learner by hitting the learner on his forehead.

6. The applicant earned R341550 per annual at the time of the dismissal.

7. The applicant referred an unfair dismissal dispute to the ELRC on 23 February 2022. The dispute could not be resolved through conciliation and on 30 March 2022 the applicant applied for arbitration of the dispute.

8. The applicant denies the allegations that resulted in her dismissal, and she claims that the dismissal was substantively- and procedurally unfair. The applicant seeks retrospective reinstatement as primary relief. The respondent claims that the applicant’s dismissal was fair.

SUMMARY OF EVIDENCE AND ARGUMENT

9. During the proceedings both parties submitted documents into evidence. I have considered all the evidence and argument presented in this arbitration, but because section 138(7) of the Labour Relations Act, 66 of 1995 (LRA) requires an award to be issued with brief reasons for the findings, I shall only refer to the evidence that I regard as necessary to substantiate my findings in the determination of the dispute.

10. The identity of all the witnesses who testified during this arbitration are known to the parties. The leaners who testified during this arbitration are minors and their identities, and those of their parents are protected and not disclosed for the purposes of this award.

The respondent’s case

11. Learner A testified that he was in the applicant class in 2021. He explained that on one occasion when he took his mask from his face the applicant called him to her desk and proceeded Sellotape the mask on his face from his chin to his forehead. He then had to wear the mask like that for some time. Leaner A further testified that the applicant on a different occasion hit him hard on his head because he has made a mistake. He testified that he is afraid of the applicant.

12. Under cross-examination it was put to Leaner A that two leaners will testify that the applicant did not Sellotapes a mask to his face. Learner A repeated his version and maintained with it. He also demonstrated how the face mask was Sellotaped to his face and showed that the Sellotape was about 10cm in width.

13. Leaner B testified that the applicant on an occasion called Leaner A to her desk when he took off his facemask. The applicant then proceeded to Sellotaped the facemask onto Leaner A’s face. She demonstrated how the face mask was Sellotaped over Leaner A’s face from his chin to his forehead.

14. She testified that the applicant once hit her with a ruler on her back. According to Leaner B it was sore, and she felt heartbroken after this incident.

15. Under cross-examination Learner B repeated her version. She aslo showed the width of the Sellotape that was used, and it was approximately the same width that Leaner A has shown during his testimony.
16. About the applicant hitting her with a ruler on her back, Learner B explained that she went to the front of the class whist the applicant was busy writing on the black board. The applicant took the ruler that was on her table and hit her on her back. Some said that some of the other leaners laughed.

17. Leaner C testified that he witnessed how the applicant Sellotaped Leaner A’s facemask to his head. He demonstrated that the applicant Sellotaped the facemask from Leaner A’s chin to his forehead.

18. Learner C testified that he once made a mistake in his book and that the applicant used her knuckles and hit him on his forehead. He felt heartbroken after this incident.

19. Under cross-examination Leaner C maintained that he saw how the applicant Sellotaped Leaner A’s facemask to his head. He elaborated that Leaner A told him that has difficulty to breath.

20. Leaner A’s mother testified that a friend of Leaner A told her about the facemask incident. She testified that Leaner A was hopitalised in the past because he experienced breathing difficulty. She testified that Leaner A disclosed to her that the applicant has hit him on his head because he had made a mistake . She reported these incidents to the Circuit Manager.

21. Under cross-examination Leaner A’s mother confirmed that she is aware a message book that is used to report incidents involving leaners to their parents.

22. Leaner B’s mother testified that Leaner B reported to her that the applicant has hit her with a ruler and that she did not want to be in the applicant class any longer. Leaner B was later transferred to another class.

23. Leaner C’s father testified that Leaner C’s attendance was poor when he was in the applicant’s class. He was later transferred to another class. When the applicant left the school, Leaner C’s attendance improved.

24. Mr. R Blaauw, the principal of Eden Primary referred to minutes of a meeting dated 4 February 2021 and circular 219/2019 and testified that educators were informed that corporeal punishment is prohibited. He testified that the abovementioned learners were transferred to another class after the allegations against the applicant came to light. In his view the dismissal of the applicant should be upheld.

25. Under cross-examination Mr. Blaauw denied that he assaulted a learner or that he orchestrated the dismissal of the applicant. He is unaware that the applicant has lodged a complaint of victimisation against in 2017. It was put to Mr. Blaauw that four educators at the school were not dismissal after being charged with assault. He agreed and mentioned that some of the educators had resigned. Mr. Blaauw testified that the applicant was dismissed because of the seriousness of the allegations against her.

26. Ms. A van Wyk, the chairperson of the applicant’s disciplinary hearing testified that she considered the allegations on which the applicant was found guilty as very serious and decided that dismissal was the appropriate sanction. Ms. van Wyk conceded that she did not call for the applicant to present evidence in mitigation before recommending the applicant’s dismissal. She testified that the applicant had exercised her right to appeal.

The applicant’s case

27. Ms. I Avontuur testified that she is a strict educator but does not assault leaners. She denied the allegations levelled against her by Learners A, B and C.

28. According to the applicant the matter escalated as a result of a SGB meeting held on 6 May 2021 where she called out Mr. Blaauw for his behaviour and swearing in relation to the alleged assault of another leaner. The applicant explained that she has been victimised by Mr. Blaauw for years and that she ended up in a clinic for anxiety and panic attacks. She believes that Mr. Blaauw does not have the best interest of the children at heart and has used the leaners.

29. The applicant testified that she had strict rules pertaining to the wearing of masks in her class. She cannot recall a specific incident involving Leaner A and testified that she would not Sellotaped a facemask to a child’s face.

30. Regarding the testimony of Leaner B the applicant testified that rulers are nowadays of such poor quality that it will break with a light tap on a desk. The applicant denied that she hit Learner C on the head and testified that she is aware that it is against the law to assault a learner.

31. In as far the procedural fairness of the dismissal is concerned, the applicant testified that the chairperson did not request evidence in mitigation.

32. Under cross-examination the applicant testified that she does not know why leaners have lied.

33. Leaner D testified that she was in the applicant’s class in 2021 with the above-mentioned learners. Leaner D explained that the applicant had strict rules in her class and that the applicant was the best teacher. She was sad when the applicant was no longer at the school.

34. Under cross-examination Leaner D said that Leaner A, B and C lie a lot but that she never lies.

35. The parent of, who will be referred to as Learner E, testified that her child was unfairly suspended because of allegations that Mr. Blaauw levelled against him. Mr. Blaauw allegedly also choked her child. She reported it to the School Governing Body and WCED. Nothing came of it.

36. Under cross-examination she conceded that she was not present when Mr. Blaauw allegedly choked her child.

Closing arguments

37. The written arguments of the parties are on record. I will refer to in the analysis of the evidence and argument to the extent that I need to.

ANALYSIS OF EVIDENCE AND ARGUMENTS

38. Section 192 of the LRA provides that the employee must establish the existence of a dismissal and if that has been established the employer bears the onus to prove on a balance of probabilities that the dismissal is fair. It is common cause that the respondent dismissed the applicant.

39. I will first deal with the substantive fairness of the dismissal. In deciding the substantive fairness of the applicant’s dismissal I must consider Schedule 8, item 7 of the Code of Good Practice on Dismissal. In this regard the Code states that an arbitrator must consider:
“Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to the workplace; and if a rule or standard was contravened, whether or not
• the rule was a valid or reasonable rule or standard
• the employee was aware, or could reasonably be expected to have been aware, of the rule or standard
• the rule or standard has been consistently applied by the employer and
• dismissal was an appropriate sanction for the contravention of the rule or standard”

40. In deciding the substantive fairness of the applicant’s dismissal I must also consider the principals laid down by the Constitutional Court in Sidumo and Congress of South African Trade Unions v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC). The Constitutional Court held that fairness requires a balancing of the interest of the employer and employee parties. An arbitrator must consider the totality of circumstances in determining the fairness of the sanction. In terms of the Sidumo judgment, the commissioner must inter alia:
• take into account the importance of the rule that was breached, the reason why the employer imposed the sanction of dismissal and the basis of the employee’s challenge to the dismissal
• consider the harm caused by the employee’s conduct and whether the misconduct is serious and makes a continued employment relationship intolerable
• consider whether additional training and instruction may result in the employee not repeating the misconduct
• consider the effect of dismissal on the employee
• consider the employee’s service record

41. It was not the applicant’s case that she is unaware of rules against corporeal punishment or assaulting learners or that these rules are invalid or unreasonable. The applicant case is that she has not assaulted the learners; that the rule was inconstantly applied; and that dismissal was not an appropriate sanction.

42. Learner A, B and C have impressed me as witnesses considering their ages. In my view they were open and honest, made concessions where necessary and maintained with their versions during cross-examination. The evidence of Leaner D is treated with caution because according to her she never lies but Leaners A, B and C always lies. I find it improbable that Leaner D will never lie and that the other leaners will always lies. I did not get the impression that Leaners A, B and C have made up their evidence or conspired in some fashion against the applicant. Learner B and C also corroborated Learner A’s version that the applicant Sellotaped his mask onto his face from his chin to his forehead.

43. I was not impressed with the testimony of the applicant. Her version is nothing more than a mere denial of the incidents testified to by Leaners A, B and C. She attempted to divert from the real issues, namely the allegations against her, by testifying of how she was allegedly victimized and ill-treated by the Principal and the Circuit Manager.

44. It was also notable that Learner A was not cross-examined about his version that the applicant once hit him on his head because of a mistake that he has made. I accept Leaner A’s testimony on this score. I also accept his version that the applicant has Sellotaped his mask to his face. I further have no reason to reject the evidence of Learner B that the applicant once hit her with a ruler on her back and I also accept the evidence of Learner C that the applicant once used her knuckles to hit him on his forehead.

45. The legal requirements for assault are the intentional and unlawful application of physical force, however slight, to the body of the complainant or the threat that such force will be applied. The conduct of the applicant in all the above instances met this requirement. I accordingly find that the respondent has proved the allegations referred to in paragraph 5 above on a balance of probability.

46. NAPTOSA has argued that the respondent is inconsistent in its application of discipline. In S A Commercial and Allied Workers Union& others v Irvin & Johnson (1999) 20 ILJ 2302 (LAC) the court set out the principles of consistent employment discipline. The ‘parity principle’ merely requires that every employee must be measured by the same standards. When comparing employees care should be taken to ensure that the gravity of the misconduct is evaluated and the disciplinary record of the employees compared. No extraneous matters should be regarded and a comparison has to be made between all the relevant features that are normally considered when one employee is disciplined.” In the abovementioned case Conradie J also said that in his view too great an emphasis is quite frequently sought to be placed on the principal of disciplinary inconsistency and that it is simply an element of fairness. He said that it is really the perception of bias inherent in selective discipline that makes it unfair. Where one is faced with a large number of offending employees the best one can hope for is reasonable consistency. Some inconsistency is the price to be paid for flexibility which requires the exercise of discretion in each individual case. It is clear from this judgement that the parity principal must be applied with caution.

47. NAPTOSA presented four instances where educators of different schools were charged with assault and where these educators entered into a so-called plea bargain agreement with the WCED. These educators received final written warnings as sanction coupled with the payment of a fine. NAPTOSA argued that the applicant was not provided with the same opportunity to enter into a plea bargain. There is however a significant difference between these four cases and the applicant’s case. In these four cases the educators have admitted wrongdoing and have pleaded guilty to the charges against them. The applicant on the other hand has denied the allegations. Where the applicant has denied any wrongdoing, I cannot see how a plea bargain can be entered into.

48. NAPTOSA also referred to one other case where an educator was found guilty of assaulting a leaner by slamming or closing a door against the leg of the leaner. The chairperson sanctioned this educator with a final written warning and a fine. Having read the report of the chairperson, it is unclear whether the educator has admitted wrongdoing, although the educator’s version in mitigation it is recorded that his conduct was not premeditated and that he had no intention to cause harm to the department or community. On the available information it appears the educator was charged with a single act of assault which is distinguishable from the applicant’s case where she was charged with four separate instances of assaulting learners. Even if I accept that these cases that was brought to my attention show some historical inconsistency, I am mindful of the abovementioned judgement that some inconsistency is the price to be paid for flexibility which requires the exercise of discretion in each individual case.
49. NAPTOSA argued that the relationship between the principal and applicant should be considered. The principal is however not the employer of the applicant, and their professional relationship, or lack thereof, does not have material bearing on whether the trust relationship has been irretrievably broken because of the misconduct perpetrated by the applicant.

50. I have considered that the applicant’s very long service and that she has a clean disciplinary record. This is an impressive service record. I also have regard for the principal that the courts have endorsed the concept of corrective or progressive discipline.

51. I am however mindful that item 3 (4) of the Code of Good Practice in Schedule 8 of the LRA list assault as an example where dismissal for a first offence is appropriate, subject to rule that each case should be judged on its own merits. I must have regard to the South African Schools Act, Act 84 of 1996 and the National Education Policy Act, Act 27 of 1996 which prohibits corporeal punishment in schools.

52. I have also considered that the South African Constitution states that the best interest of the child shall be paramount in any matters affecting the child (section 28(2)). In this regard the Constitutional Court in Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BCLR 761 CC, held that section 28 of the Constitution impresses an obligation on all those who make decisions concerning children to ensure that the best interest of the children enjoy paramount importance. Courts and administrative authorities are constitutionally bound to consider the effect their decision will have on children’s lives.

53. The applicant’s conduct was not an isolated incident. The applicant has on at least four separate occasions violated the rights of Grade 3 learners that was placed in her care. She sellotaped a mask on Leaner’s A face from his chin to his forehead. On another occasion she hit him on his head because he made a mistake. On a different occasion she hit Leaner B with a ruler on her back and on another occasion, she use her knuckles to hit Leaner C on his forehead. The cumulative effect of these incidents cannot be ignored.

54. In De Beers Consolidated Mines Limited v CCMA and others (2000) 21 ILJ 1051 (LAC) at paragraph 25 it was held that : It would in my view be difficult for an employer to reemploy and employee who has shown no remorse. Acknowledgement of wrongdoings is the first step towards rehabilitation.” The applicant has unfortunately not taken this first step to acknowledge her wrongdoing and she has shown no remorse for her conduct.

55. Having considered all the factors, I am persuaded that the applicant’s dismissal is substantively fair.

56. I will now deal with the procedural fairness of the dismissal. The Labour Court held in Avril Elizabeth Home for the Mentally Handicapped v CCMA and others (2006) 27 ILJ 1644 (LC) that at the conception of procedural fairness incorporated into the LRA is one that requires an investigation into any alleged misconduct by the employer, an opportunity by any employee against whom any allegation of misconduct is made, to respond after a reasonable period with the assistance of a representative, a decision by the employer and notice of that decision. The Court held that this approach represents a significant and fundamental departure from what might be termed the 'criminal justice' model. The Court said that true justice for workers lies in a right to an expeditious and independent review of the employer’s decision to dismiss, with reinstatement as the primary remedy when the substance of employer decisions is found wanting.

57. It is clear that in deciding whether a procedure was fair, commissioners should not adopt an overly technical approach and should bear in mind that the purpose of the recommended procedure is to provide an opportunity for dialogue and reflection regarding whether a fair reason for dismissal or some other sanction exists.

58. The evidence shows that the applicant was informed of the allegations against her and of her rights during the disciplinary hearing. She was represented at the disciplinary hearing and was afforded an opportunity to state her case. To this point the procedure cannot be faulted.

59. NAPTOSA argued that the chairperson did not adhere to the prescribed procedures and did not call for evidence in mitigation prior to pronouncing the sanction. Item 16-17 of Schedule 2 of the EEA reads as follows: “(16) The presiding officer must give a finding whether or not the educator has committed the misconduct and must inform the educator of the finding and the reasons therefor. (17) (a) Before deciding on the sanction, the presiding officer must give the educator an opportunity to present evidence in mitigation”. The evidence shows that the chairperson has pronounced the finding and sanction without providing the applicant an opportunity to present evidence in mitigation. The procedure that the chairperson followed thus falls short of the requirement stipulated in item 17(2) of Schedule 2. The applicant was afforded an opportunity to appeal to the MEC where she could have presented evidence in mitigation. But this does detract from the chairperson’s duty to adhere to the abovementioned procedure. For this reason I find the dismissal procedurally unfair. I find compensation equal to two weeks’ remuneration being fair and equitable in the circumstances. This amounts to Thirteen Thousand One Hundred and Forty Six Rand and Sixty Four Cents (calculated as follows: R341 550.00 / 12 = R28 462.50 / 4.33 = R6573.32 x 2 = R13 146.64).

AWARD
I find the dismissal of the applicant substantively fair but procedurally unfair.

1. I order the respondent, the Western Cape Education Department to pay compensation for the procedurally unfair dismissal to the applicant, Ms. I Avontuur in the amount of Thirteen Thousand One Hundred and Forty-Six Rand and Sixty-Four Cents (R13 146.64).

2. The respondent must pay the total amount of Thirteen Thousand One Hundred and Forty Six Rand and Sixty Four Cents (R13 146.64) to the applicant before close of business on 25 November 2022. Interest will accrue on this amount from 26 November 2022 in accordance with section 143(2) of the LRA.

ELRC Panellist: Jacques Buitendag