ELRC240-22/23EC

Case Number: ELRC240 - 22/23EC
Commissioner: MBULELO SAFA
Date of Award 08 May 2023
In the ARBITRATION between: -

SADTU obo ANELE NTULI
Applicant

And

DEPARTMENT OF EDUCATION: EASTERN CAPE
Respondents

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter set down for Arbitration on the 15 February 2023 and concluded on the 13 April 2023. The venue was TRINSET in Mthatha.

2. The Applicant was represented by Mr Mphatheli Hani from the union, SADTU, and the Respondent was represented by Ms Ntombomzi Damane who is their Labour Relations Officer.

3. The proceedings were recorded in an audio recorder.

ISSUES TO BE DECIDED


4. Whether or not the Respondent acted fairly in disciplining her and imposing a sanction of a fine of R5 000, and to make an appropriate award in terms of section 193 of the Labour Relations Act.

BACKGROUND TO THE ISSUE

5. The Applicant is employed by the Respondent as an educator at St Johns High School (the school) in Mthatha.

6. She was disciplined for misconduct following events that occurred in the meeting of the School Governing Body(SGB) of the school on the 07 February 2021. The allegations were that she invaded the meeting and also insulted the members of the SGB. The sanction she received from the disciplinary enquiry was a fine of R10 000. On appeal to the MEC: Education (in Eastern Cape) the fine was reduced to R5 000.

7. The Applicant then referred an unfair labour practice dispute to the ELRC. That dispute was not resolved at conciliation and it was referred to arbitration.

8. The relief sought by the Applicant is the setting aside of the sanction and the refund of the R5 000 that was deducted from her salary.
SURVEY OF EVIDENCE AND ARGUMENT

9. Each party led oral evidence through two witnesses and the Respondent submitted a bundle of documents to which the Applicant also relied.
APPLICANT’S EVIDENCE
10. The first witness was the Applicant herself, Anele Ntuli. She testified that in the afternoon of the 07 February 2021 she received a whatsapp message from a Mr Nodede who is their Site Steward at the school. In the message Mr Nodede was inviting them(employees) to a meeting he (Mr Nodede) was informed about by Mr Fadane, the chairperson of the SGB. The meeting was to be in same afternoon.

11. She said there was previously another meeting which was attended by the members of the ‘Task Team’ where they met the chairperson of the SGB, Mr Fadane, who informally invited them to the meeting of the SGB.

12. She said she arrived late in the meeting and when she came it was already in session and in attendance there were about thirty-five (35) teaching and non-teaching staff in addition in addition to the members of the SGB. When she came the meeting was orderly and Mr Nodede was already making a presentation to the SGB. After Mr Nodede presented they were released from the meeting.

13. Among the issues to be raised in the meeting was the issue of non-payment of educators and non-teaching staff for their work during the marking which was held at the school. In the minutes there was a reference to the marking centre which is one of the issues they were concerned about.

14. She said there was no member of the SGB who objected to their presence in the meeting and she denied that she invaded the meeting.

15. She said she did not know what she has done to the principal and the chairperson of the SGB that she was the only one charged for misconduct whereas she was even late to come to the meeting. She said ever since she was elected to be the secretary of the Site Committee the relations between her and management soured because she was presenting the problems of the staff.

16. She said being the only one charged for misconduct meant she was targeted because she was presenting the challenges faced by employees. When asked at cross-examination she said she was aware that the principal, two departmental heads and twelve other educators were charged for misconduct but added to say they were not charged for invading the meeting.

17. She said she did not speak in the meeting but as they were walking out she told the SGB members(parents) that they were not only failing them(educators) but were failing their children as well by not attending to the problems of the school. She told them she was going to ensure that they were not elected to the SGB again. She denied that she came to the meeting to make a statement and that she made it through her utterances, otherwise there was nothing planned and no intention to disrupt the meeting.

18. She denied that she insulted the members of the SGB, saying she only stated their(employees’) wish, as there was nothing wrong in having preferences for people to be elected. She also said there were other people(staff) who were shouting things but it seems like her voice was the loudest. However, there was no shouting from the side of the SGB members

19. She said that no one respondent to her and she did not even think they heard her because at that time everyone was leaving the meeting.

20. She also said that in the minutes of the meeting there is no record of her invading the meeting. She would not comment when told that they were no invited in the meeting hence they did not have a slot in the agenda and the minutes.

21. The other witness of the Applicant was Mr Msawenkosi Msila who is also an educator at the school and was part of the meeting of the 07 February 2021.

22. He said Mr Nodede had an informal arrangement with the chairperson of the SGB for the meeting to be held on the day.

23. He said the employees of the school were facing many challenges and they elected a ‘Task Team’(steering Committee) comprised of himself and other three educators.

24. As the Task Team they wanted Mr Fadane, the chairperson of the SGB to listen to their problems. He met them on Wednesday the 03 February 2021. Mr Fadane invited them to join the SGB meeting on the 07 February 2021 as he could not commit on their problems on his own. They interpreted the invite of Mr Fadane to be for all employees and not only the members of the Task Team.

25. At the meeting on the 07 February 2021 they were welcomed by the chairperson and Mr Nodede was given a slot to present on behalf of the employees their problems including non-payment problems. Other people also deliberated in the meeting after the presentation. By being given a slot he took that to mean that they were welcomed to the meeting.

26. He said the meeting was normal where people were listening when the other is talking. There was also no shouting. The Applicant only spoke (with a loud voice) when they were leaving the meeting. She said something to the effect that they would make sure that they (SGB parents) were not voted again as members of the SGB as they were failing the community and their children since they were not resolving the problems at school. He said that to him the words uttered by the Applicant were not insults and he believed the SGB was personal in charging the Applicant only.

27. He said that in the meeting there was nothing that said anything about invading the meeting and also the minutes do not reflect that.

28. He was surprised that the Applicant was the only one charged for invading the meeting whereas there were more than thirty-five people who attended the meeting. He believed that the relations between the Applicant and the principal were not good because as the secretary of the Site Committee the Applicant was very vocal

RESPONDENT’S EVIDENCE AND ARGUMENT

29. The first witness of the Respondent was Mr Gcobani Fadane who was the chairperson of the SGB when the events of 07 February 2012 occurred.

30. He said in his capacity as the chairperson of the SGB he was approached by Mr Nodede who said the Steering Committee (Task Team) wanted to meet him. After listening to their problems in the meeting he took them to the SGB. The issues were put in the Agenda of the meeting but before they could discuss the items the employees (including the Applicant) invaded the meeting.

31. When the employees got into the meeting they conducted themselves like they did not want the meeting to progress, it was clear that they came to disrupt the meeting. The employees were talking whilst the members of the SGB were talking and even when the principal talked to them they continued and shouted at him.

32. The SGB indicated that they were prepared to listen to their concerns but at least wanted the employees to have delegates to the meeting but the suggestion was not accepted. After a commotion of about forty-five (45) minutes the SGB decided to allow the employees to address them. Mr Nodede then presented on their behalf and they left. He disputed the version of the Applicant that she arrived late in the meeting.

33. When the group was leaving the meeting the Applicant was left behind and she started to insult the SGB members and pointing fingers at them. The insults uttered by the Applicant were, “ningamanyoronyoro” (hypocrites) and “amaxoki” (liers). The SGB members were puzzled by the behaviour of the Applicant because they were older than her and that she was a professional.

34. He said the Applicant whilst insulting them said she was going to ensure that they were not elected again. They were not threatened by what she said because she was not going to control how the parents voted.

35. When the Applicant was insulting the members of the SGB other employees were leaving the meeting and he(witness) did not hear them say anything.

36. After the incident the SGB decided to call off the meeting without discussing other items. He however said with regards to non-payment the SGB took a decision that all outstanding payments were to be made.

37. Asked why were the minutes showing that the meeting of the 07 February 2021 proceeded up to the end, he said he could not account for the minutes mentioning other items being discussed. Otherwise the meeting was called off after the disruption and as the chairperson of the meeting he would know if there were other items discussed.

38. He said the SGB decided to file a complaint against the Applicant only because she insulted them, otherwise they did not have any vendetta against her.
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39. Asked why they did not charge the other employees for insubordination after they shouted at the principal he said it was the principal who was supposed to charge them and not the SGB.

40. When asked he said the minutes were not reflecting the invasion of the meeting and the insults he said the invasion took place before they arrived at the items. He also stated the minutes of the SGB ‘(submitted as evidence at arbitration) were not a true reflection of what transpired in the meeting. He said the item, “Hostel Admission 2012” was not in the agenda and they did not discuss it. He also queried the fact that there were different hand writings in writing the minutes.

41. Asked why their objection to the presence of the employees in the meeting was not captured in the minutes he said he did not know why the secretary did not capture it.

42. Referred to the letter he wrote to the Respondent about the events of the day he said the incidents mentioned in the letter happened in the meeting.

43. The second witness of the Respondent was Mr Thobela Madubela who was also a member of the SGB during February 2021.

44. He said he knew the Applicant and that in one instance she, together with other educators forced herself into the scheduled meeting of the SGB on the 07 February 2021 without being invited. He said one of the items to be discussed in the meeting was the correspondence with concerns from educators. Whilst the meeting was in session the group of about seventeen (17) people (including the Applicant) stormed into the meeting uninvited.

45. He said the chairperson stopped the proceedings of the meeting and asked what the employees wanted and they said they came because they wanted to recall educators who were serving in the SGB. After the chairperson explained to them that their correspondence to that effect was going to be discussed the group left the meeting peacefully.

46. The Applicant was left behind whilst the others were leaving. She then started to make utterances accusing members of the SGB of being liars and that the SGB was not supporting progressive programmes. She also threatened that she was going to ensure that the parent members were not elected into the SGB again. He said the utterances of the Applicant was not acceptable because in a democratic society you cannot to a meeting uninvited and utter such word and still regard that as normal.

47. He said this was the second invasion of the SGB meeting as the group have invaded the meeting of the SGB on the 04 February 2021, but the insults were only in the meeting of the 07 February 2021.

48. At the conclusion of the agenda items of the day the SGB reflected on the behaviour of the Applicant and felt it was unbecoming of her to make such utterances to the parents of the children she was teaching who were also senior to her in terms of age. The SGB felt disrespected.

49. A decision was taken by the SGB to report her conduct to the Circuit Manager and to the South African Council of Educators(SACE) so as to check if her conduct did not violate the Code.

50. The SGB then wrote to the Respondent and had they not responded they would have written to the SACE. The Circuit Manager responded to say the matter was to be referred to the relevant section of the Respondent.

51. He said he was not aware that the group of the employees was invited by the chairperson of the SGB as he did not pronounce on that. He therefore disputed that the chairperson had invited them as also in the invite to the meeting there was no mention of the group going to join the meeting of the SGB.

52. When the group left the secretary (who was the educator) was left behind in the meeting as he was going to make a handover to the interim secretary who was to be elected that day. After the secretary has finished the handover he left the meeting and the interim secretary took over the writing of the minutes, hence the different hand writtings. After the group of employees have left the meeting continued to its conclusion. He disputed the version of Mr Fadane that the meeting was abandoned after the disruption.

53. Soon after the incident the term of the SGB came to an end and a new SGB was elected with some parents being re-elected and the Applicant also elected to represent the educators in the SGB. Since her election to the SGB she has proved that she only respect herself and does not respect other people’s views.

54. Referred to the minutes of the 07 February 2021 and asked why are the minutes not reflecting the incident of the invasion and insults, he said he was not taking the minutes in the meeting but his understanding was that the minutes captured only the resolutions. Since the invasion was not the resolution but something that happened in the meeting. He further said that he took an oath to speak the truth and he insisted that the Applicant insulted the members of the SGB on the day. The fact that the secretary failed to capture it in the minutes does not nullify the fact that it happened.

55. The decision to refer the conduct of the Applicant to the Respondent was a resolution but is also not captured but they resolved on it. He blamed the fact that the minutes were never read to them, otherwise they would have picked up the errors.

56. Asked why the SGB picked on the Applicant only he said her conduct was an anomaly in that she was left behind in her own volition and insulted the members of the SGB. The feeling of the SGB was that she crossed the line. She denied the version of the Applicant that the SGB targeted her saying it was her insults that led to her being reported.

57. When asked about the evidence of Mr Fadane where he said the group of educators caused a commotion and were insubordinate to the principal and the SGB, he said he could not recall any commotion after the group of employees have presented their concerns. After they were addressed they peacefully left the meeting.



ANALYSIS OF EVIDENCE AND ARGUMENT


58. That the dispute was referred by the Applicant as an unfair labour practice in terms of section 186(2) of the Labour Relations Act means the onus is on her to prove that the action of the Respondent to discipline her was unfair.

59. The Applicant was charged and sanctioned after being found guilty of (1) ‘contravention of section 18(1)(f) of the Employment of Educators Act in that she misused her position as an educator by invading a meeting of the SGB and (2) ‘contravened section 18(1)(t) of the Employment of Educators Act in that she displayed disrespect towards others in the workplace by swearing and insulting at members of the SGB and threatening them that they will not be re-elected.’

60. During the arbitration the SGB featured prominently to the extent that an impression may be created that they are the ones who charged the Applicant for misconduct. The employer of the Applicant is the Respondent, who had the authority to charge the Applicant for misconduct and whose decision to sanction the Applicant is the subject of this arbitration. The School Governing Body were the complainants and it was expected that they would be witnesses.

61. There was a dispute whether the Applicant and fellow employees were invited to the meeting of the SGB of the 07 February 2021 with the Respondent testifying that they were not and the Applicant testifying that they were. The onus was on the Applicant to prove that they were indeed invited to the meeting, something they could not do.

62. According to the evidence led the group of employees did not forcefully got themselves into that meeting or threaten anyone in order to get into the meeting. When they got into the meeting the SGB took a decision to allow them to address the SGB. After they have addressed the SGB they left. To me by allowing the group to be part of the meeting and addressing it the SGB actually accepted the group to the meeting, which means any invasion was thus condoned.

63. So for the Respondent to charge the Applicant for an action that has been condoned was unfair.

64. Even if I may be wrong in concluding that the invasion was condoned, the other element which must be considered is the fact that there was a group of employees who got into the meeting. The witnesses of the Respondent were asked why they decided to only lay a complaint against the Applicant and their response was that it was because the Applicant insulted them.

65. In their investigation the Respondent ought to have found that the Applicant was not alone when she ‘invaded’ the meeting, and to charge her only amounted to selective discipline which is in other words called inconsistency.

66. Citing the case of SA Police Services v SSSBC and Others the Labour Court in Lonmin Mine v CCMA and Others (JR 1084/21) [2022] ZALCJHB 57 (15 March 2022) held thus;
Once the employee has pertinently put the issue of consistent treatment in issue, the employer has a duty to rebut such allegations.

67. The Applicant raised the issue of inconsistency on the first day of the arbitration and thus the onus shifted to the Respondent to rebut the allegations.

68. The only defence mounted by the Respondent on the allegation of inconsistency was that the Applicant differed with other employees because she insulted the members of the SGB. This amounted to no defence at all because the issue of insults was a separate allegation faced by the Applicant.

69. Referring to the LAC judgement in SACCAWU and Others v Irvin Johnson Ltd (1999) 20 ILJ 2302(LAC) the Labour Court in Banda v GPSSBC and others held that,


“What is meant by Irvin and Johnson Ltd is that in order to ensure inconsistency is not found to exist in the case of dismissal of employees: (1) Employees must be measured against the same standards (like for like comparison); (2) The chairperson of the disciplinary enquiry must conscientiously and honestly determine the misconduct; (3) The decision by the employer not to dismiss other employees involved in the same misconduct must not be capricious, or induced by improper motives or by a discriminating management policy (this conduct must be bona fide); (4) A value judgment must always be exercised.

70. The onus was on the Respondent to prove that the selective disciplining of the Applicant was not capricious or induced by improper motives. As stated above their defence to the allegation of inconsistency was not satisfactory and as such not accepted. The Respondent thus could not prove that the selective treatment of the Applicant was fair.

71. I am not turning to the second allegation faced by the Applicant, which has to do with the utterances and insults she is said to have made to the members of the SGB.

72. There are contradicting views about what really transpired in the meeting of the SGB of the 07 February 2021. What was common cause being that after the presentation has been made by Mr Nodede on behalf of the staff(employees) the Applicant was left behind and she uttered words to the SGB members. I will zoom into the stage of the uttering of words because the allegations are about that.

73. The version of the Applicant is that she only told the members(parents) of the SGB that they were not only failing them as employees but their children as well and that she was going to make sure that they were not elected to the SGB again. The version of the Respondent is that the Applicant went further and insulted the members of the SGB labelling them as hypocrites and liars.

74. It was not clear why the Applicant decided to stay behind when her colleagues were leaving the meeting after they have finished raising their problems to the SGB. Even when she was testifying she could not explain why she was left behind. What was further puzzling was that the Applicant arrived late in the meeting and did not speak, the person who was appointed to make a presentation on behalf of the employees have finished doing that, the meeting was then peaceful and the employees have already been released to go. It has now become apparent that the Applicant was left behind in order to make the utterances she made.

75. The unprovoked Applicant decided to tell the SGB members that they were failures and that she will ensure that they were not re-elected. She admitted that when addressing the SGB members she was shouting. Mr Msila also testified that when the Applicant was speaking she was speaking in a high voice. In his argument the Applicant representative also admitted that the Applicant shouted.

76. The utterances of the Applicant were disrespectful to the members of the SGB and were uncalled for. Judging by the shouting that was evident when the Applicant was talking to the SGB members it is highly probable that she labelled them as liars and hypocrites as well. The Applicant was therefore guilty of the allegation of disrespect towards others in the workplace. In the workplace respect plays a critical role in ensuring that relations between the employees, among employees and between the employer, employees and stakeholders are maintained. Any person who tampers with that relationship has to be frowned upon. Legislation and collective agreements provide for mechanisms for dealing with dissatisfactions within the employment relationship. During the arbitration the Applicant, much as she admitted that she shouted at members of the SGB unprovoked, did not show any remorse for her actions.

77. There were contradictions in the evidence of the Respondent like where one witness said the meeting was concluded whilst the other said the meeting was abandoned after the disruption. The other contradiction was when one witness of the Respondent said after the presentation by Mr Nodede on behalf of employees there was commotion and the other said it was peaceful after the presentation. These contradictions were not material as they had no direct bearing on the allegations faced by the Applicant.

78. The next consideration is whether the sanction that was imposed on the Applicant was appropriate.

79. The Constitutional Court in Sidumo and Another v Rustenburg Platinum Mine Ltd & others (CCT 85/06) [2007] ZACC 22 (although dealing with a dismissal matter but the principle is the same) held that in approaching a dismissal dispute impartially a commissioner will take into account a totality of circumstances which include the importance of the rule that has been breached, reason the employer imposed the sanction, basis of the employees challenge to the sanction, harm caused by the employees conduct, whether additional training may result in the employee not repeating the misconduct and the effect of the dismissal on the employee and his or her long service.

80. In this dispute the rule that has been breached has to do with respect of others in the workplace. The disrespect displayed by the Applicant reflected badly on her as an employee and as a professional. In the letter of the sanction the Respondent stated that the misconduct is serious as it resulted in the breakdown of the employment relationship between the Applicant, the Respondent and the SGB. The Applicant did not address me on the sanction save to say it was harsh and that they wanted a final written warning. Showing no remorse for her conduct did not help her in her appeal for a lenient sanction.

81. The Labour Court in Western Cape Education Department v CCMA and Others (CA 9/2020) [2022] 6 BLLR 537 (LAC) taking the authority of the Constitutional Court in Sidumo held that the arbitrator is said not to be given power to consider afresh what he or she would do but to decide whether considering all the relevant factors the sanction imposed by the employer was fair.

82. I have considered the fact that at the enquiry the Applicant was found guilty of the two charges and at arbitration I have found her guilty of one charge. However, the charge I have found her guilty on is serious. I have not been convinced by the Applicant that there are compelling reasons to interfere with the sanction.

83. My conclusion is therefore that the sanction imposed by the Respondent on the Applicant was fair.

In the circumstances I make the following award;
AWARD

84. The action of the Respondent to impose a sanction of R5 000 was fair.

85. The Applicant is therefore not entitled to the relief she sought.

Mbulelo Safa: ELRC Panelist