ELRC1009-21/22LP

Commissioner: Grace Mafa-Chali
Case No.: ELRC1009-21/22LP
Date of Award: 12 May 2023

In the ARBITRATION between:

MPHO MAKHADO

(Employee / Applicant)

AND

DEPARTMENT OF EDUCATION-LIMPOPO PROVINCE
(Employer/Respondent

THE DETAILS OF THE HEARING AND REPRESENTATION
1. The arbitration hearings for this matter were held on 22 March 2023, 18 April 2023 and finalized on 19 April 2023 at the Head Office of the Department of Education, Corner of Biccard and Hospital Streets, Polokwane in Limpopo Province.
2. The Applicant was represented by an attorney, Mr P W Becker from Becker Attorneys while the Respondent was represented by Mr T R Rambau, Assistant Director: Labour Relations.
3. At the conclusion of the arbitration process, parties submitted oral closing arguments and also requested to supplement them with written heads of arguments. They were directed to submit their written arguments within 7 days of the date of the hearing, on 26 April 2023. Only the Applicant obliged. At the time of issue of the award, I had not received the Respondent’s written closing arguments, even after giving them a few days indulgence.
4. I have considered the parties’ arguments in my analysis and findings hereunder.
ISSUES TO BE DECIDED
5. I must decide whether or not the Applicant’s dismissal was substantively fair.
6. If so, to determine the appropriate relief.
BACKGROUND TO THE DISPUTE
7. The Applicant was employed by the Respondent as a CS1 Educator having started in 1995 on a temporary basis and permanently appointed in September 2006 at New-Look Primary School in Seshego.
The Applicant earned a basic monthly salary of R20 502.49. She was charged with misconduct in terms of Section 17 (1) of the Employment of Educators Act, 76 of 1998 (as amended) in that on or around 24 June 2021, at New Look Primary School, she physically assaulted a Grade 5 learner, Thato Ramabu byslapping him on the cheek and as a result he hit the window seal that cut him on the right eyebrow and therefore, assaulted a learner with an intention to cause grievous bodily harm.
8. The Applicant attended a disciplinary hearing on 14 October 2021. She was found guilty of the charge and subsequently dismissed on 17 December 2021. She appealed against the dismissal on 20 January 2022 and the appeal outcome was issued on 2 March 2022 and it confirmed her dismissal.
9. She only challenged the substantive fairness of her dismissal in relation to the commission of the offence and consistent application of the rule because other educators Mrs Motswadi and Ms Motswetsi, who also assaulted learners were not charged nor dismissed. The Applicant also challenged the appropriateness of the sanction. She sought retrospective reinstatement as a relief.
10. The Respondent submitted documentary evidence marked Bundle R and the Applicant also submitted her Bundle A. The documents were admitted into evidence as they are not without any contestation of their authenticity. Parties led evidence on the contents of the documents.

SURVEY OF PARTIES’ EVIDENCE

Respondent’s Evidence
Lydia Masekwameng testified under oath as follows:

11. She is on retirement since 01 January 2023. Before that, she was the School Principal at New-Look Primary School from January 2016 to December 2022.
12. The Applicant was charged for misconduct of assaulting a learner on 24 June 2021. She came to know about the incident when the Applicant came to her office and told her that she made a mistake by hitting a learner. She asked the Applicant where the learner was and she told her that the learner was at the Administration

Block and was bleeding. She sent one of the Assistants to call the teacher responsible for First Aid. The teacher was however already there as she found the teacher when she went outside. The learner was already cleaned and the teacher was washing the learner’s shirt.
13. She went back to the office with the Applicant because she wanted to know what happened. The Applicant said that she was busy in class and learners were writing a Life Skills test, a few of them were making noise, she went back to make them quiet, raised her hand and the learner, Thato Ramabu hit the window.
14. She did not see the learner or talk to him at that time. Teacher Maila brought the learner to her office after cleaning him and washing his shirt. The Applicant was also in her office. She observed that the learner had a cut above the eye.
15. She then released the Applicant to go to class and continue with the test. She requested Teacher Maila to call the parents about the injury as they normally do and to see if the learner can be taken to hospital.
16. The parent did not come and said as the injury was minor, she would see the child when she came home. After school, she again asked the Applicant what happened. The Applicant said that she raised a hand and threatened the learner and unfortunately, she hit the learner with her open hand and said that it was not intentional but merely trying to threaten or intimidate the learner.
17. The following day, the parent came to school to see the Applicant about the child and said that the learner’s grandfather advised her to come to school to talk to the teacher. The parent also reported that they took the learner to Seshego Hospital. She was advised to open a case against the Applicant for assault with the police. She told the parent that the Applicant did not harm the learner intentionally. The parent said she wanted to see the Applicant.

18. Reference was made to Exhibit 4, Bundle R, which is her statement with her signature, the parent’s signature and the Applicant’s signature. She left the parent and the Applicant in her office to allow them to talk and told them she did not want to take sides.
19. When she came back and asked them if they agreed, the parent said that they have agreed but the Applicant said they did not agree. She then wrote the statement and indicated it was not an accident when the Applicant hit the learner, hence she cancelled what she wrote that she hit him at the back and the Applicant signed.
20. She contacted the Circuit Manager and reported the incident. The Circuit Manager instructed her to write a report and bring it to the Circuit Office. She told the Applicant about reporting the incident to the Circuit Manager.
21. The next day, Mr Mojapelo came to the school with the letter and gave it to the Applicant. He told her that the Applicant must not be at the school as she was suspended.
22. She saw the learner 2 days later and asked him how he was feeling. The learner said that he had a headache.
23. She did not know of any case reported at the school for Ms Motswadi as they don’t have that person at the school. They only have Ms Motshowedi and Ms Motswetsi at the school. There were never any allegations of assault against Motswetsi. She removed Motswetsi from foundation phase as she was always complaining that she was not coping in the phase as she was not a foundation teacher. She stated that corporal punishment was prohibited at schools in terms of the South African Schools Act.
24. Under cross examination, she denied any knowledge of any irregular dealings of the SGB of corruption and mismanagement of school monies. She further conceded

that the Applicant complained to the HOD of the Department and even went to radio stations. The Applicant was forced to resign from the SGB as the SGB took a decision that she must resign because she took them to the radio and other institutions. She was not aware of any investigation pending against her or the SGB on mismanagement of school funds.
The Respondent closed its case.
Applicant’s Evidence
Mpho Julia Selepe-Makhado testified under oath as follows:
25. She started employment in the department in 1995 and was permanently appointed in 2006. During her employment, her relationship with the children and parents was good and she was at ease to assist in any way even beyond her call. She remained in classes even when her periods were finished. Other teachers were also free to her even inspectors during or outside the classes.
26. She did not have any disciplinary record with the department. She raised her hand and volunteered to move from New-Look Primary School to Greenside Primary School to assist there. She produced good learners and even assisted learners to go overseas in sport for athletics.
27. Reference was made to letters she wrote. She was part of the SGB and realized that things were not done orderly. In 2019, she complained about the Principal as she did not feel comfortable. The Principal influenced the teachers and accused her and bad mouthed her to other teachers.
28. The Principal was never a good leader. She made her work unpleasant. They agreed to do certain projects when money came in, but projects were not done thereafter. The Principal called meetings with no agenda and all her meetings were urgent. She

wrote letters to complain as she was scared that her reputation would be tarnished because of other people’s wrongdoings.
29. Although teachers wanted her in the SGB or as a Site Steward, the Principal influenced them. In 2020, she was forced to resign from the SGB as there was an agreement for a project in the amount of R800 000.00 in the meeting but the project was never implemented. She saw the money being used but not for the project. She was insulted in the SGB meeting and the SGB Chairperson said vulgar words to her. She reported it to the site office and he was forced to apologise.
30. Money was stolen, used and unaccounted for and that was the reason she chose to resign so that whatever happened, she was not counted in as part of the government employees. In one meeting, the Principal told them that the community was coming to remove her and 2 other teachers from the school as they were not happy with them.
31. Page 28 of Bundle A showed the class she was teaching during COVID. It was packed in Grade 5A. On 24 June 2021, she was invigilating 3 classes during examination. After finishing Grade 7, she went to Grade 5, declared the classroom an exam room and explained the exam rules from question papers.
32. They were making noise and she asked who it was. One Piet Phoshoko said it was Thato Ramabu. She then went to Thato holding some question papers and told Thato “I will” raising her hand. Thato moved his face to the window pane and got a cut and started bleeding.
33. She ran to get a toilet paper and asked the learners to call teacher Maila, the First Aider to come and assist her. She did not have the intention to hurt Thato but she was merely trying to scare him. She took him to a small office. She then went to tell the principal that something happened and she would come and explain. Teacher Maila helped the learner, attended to him and she continued with the Life Skills test. Thato later came to class cleaned with bandages to write the exam.

Teacher Maria said that she called the parent who said that Thato was just but a boy and that as it was a minor thing and blood stopped, he must write exams.
34. She later went to the Principal‘s office and told her what happened. She told the principal that she raised her hand to scare Thato and he hit the window pane.
35. Thato’s parent came the following day and they had a meeting. The mother said she wanted to know what happened. She apologized to her and Thato said that it did not bother him. The Principal left her with the parent and Thato to talk and later came to write the statement. Later, she came back and asked them if they agreed. She agreed on the matter but not with the occurrence. She thought the mother was gone but later on she was called to come sign the statement. She was not there when the Principal wrote the statement as she put her own words in the statement but she signed. The words were not scratched. She could not say she intentionally hit the learner.
36. She knew something was coming and she was trapped after signing. Another educator Motswedi who was in Grade 7, teaching English had an incident of a boy who fell on the floor with her. The incident was reported to the SGB by the Principal. The mother came to see the teacher and she took the learner to the doctor at her own expenses on instructions of the Principal and the case was closed.
37. Another case was that of teacher Motswetsi. She heard other teachers saying she beat learners. The Principal told her she prefers to take her to intermediate phase as parents were complaining that she beats the learners.
38. She was surprised when the principal took early retirement while she told her she would not retire at 60 but at 65 as she still felt well and the department needed her services. She was aware of the investigations against the Principal and she was told that the new Acting Principal was advised to open a case of school money stolen.
39. She denied the charge against her and that she never touched the learner or assaulted him.
40. Under cross examination, she testified that the Principal told them that the department came to the school to investigate the monies not accounted for but she could not be precise how much. An estimated amount was around 9 million rands. She did not know the outcome of the investigations but some teachers and SGB members told her that she was fired when she raised issues about school monies and the Principal was angry and moody about it.
The Applicant closed her case.


ANALYSIS OF PARTIES’ EVIDENCE AND ARGUMENTS

41. I considered all the relevant evidence and arguments submitted by the parties and in doing so, I have only referred to the evidence and arguments that I regard necessary to substantiate my findings to dispose of the dispute.
42. The Applicant referred a dispute of unfair dismissal in terms of Section 191(1)(a) of the Labour Relations Act 66 of 1995, as amended (LRA). Section 188 of the LRA provides that a dismissal is deemed to be unfair if the employer fails to prove that the reason for dismissal is for a fair reason and in accordance with a fair procedure.
43. Dismissal was not in dispute in this matter and the Applicant only challenged the substantive fairness of her dismissal in relation to the commission of the offence, inconsistency in the application of the rule and the appropriateness of the sanction. Therefore, the onus of proof rested on the Respondent to prove on a balance of probabilities that the Applicant’s dismissal was substantively fair.
44. Both parties presented me with their evidence through the oral testimony and documentary evidence of one witness each. The Respondent led the evidence of the

former Principal of New Look Primary School, Ms Lydia Masekwameng and the Applicant led her own witness.
45. The Applicant was dismissed for contravention of the provisions of Section 171)(d) of the Employment of Educators Act, 76 of 1998, as amended (EEA) as count below:
“ in that on or around 24 June 2021, at New Look Primary School, she physically assaulted a Grade 5 learner, Thato Ramabu by slapping him on the cheek and as a result he hit the window seal that cut him on the right eyebrow and therefore, assaulted a learner with an intention to cause grievous bodily harm”
46. Ms Masekwameng was not an eye witness of the incident for which the Applicant was charged. Her testimony was based on what she alleged the Applicant told her how the incident happened and also the written statement she made when the learner’s mother and child came to school to meet the Applicant.
47. She indeed gave three versions regarding the incident. Her first version was that the Applicant came and reported to her that she made a mistake and hit the learner. Her second version was that after school she met with the Applicant who told her that the Applicant told her that she raised a hand and the learner hit the window. The last version was that after the Applicant met with the learner’s mother in her absence, she came back and asked them if they agreed and the two of them gave different answers; the mother said yes and the Applicant said no, and she wrote the statement as the Applicant said she accidentally pushed the learner and later changed that she hit at the back of the learner.
48. The Applicant on the other hand denied the allegations and testified that she never touched the learner nor had any intentions to hurt or injure the learner but instead the learner was making noise and she approached him and raised her hand in order to scare the learner; and the learner moved his face towards the window and was
injured. The Applicant furthermore denied that what the Principal wrote was the statement she gave even though she admitted that she signed it at the bottom and
the changes made in the statement were not made in her presence when she signed.
49. It is apparent to me from the evidence of both parties that the Principal and the Applicant did not have a good relationship even though the Principal seemed to have a different view. The Applicant presented documentary evidence showing that she reported some financial irregularities at the school by the Principal and SGB to the Department and even went to the radio; and as a result, she was forced to resign from the SGB as she did not want to get involved in those irregularities. The Principal testified that she saw the Applicant’s letter to the HOD for the first time in the arbitration hearing.
50. Although the Applicant testified that the Principal told her that the Department came to do investigations at the school for those financial irregularities, the Principal disputed the evidence that there were no such investigations until she took early retirement at the end of December 2022.
51. The Principal disputed the Applicant’s allegations about the assaults of the learners by the other two educators. The Applicant was not sure of the name of the educator who fell on the boy and was instructed by the Principal to take him to the doctors for medical treatment. The Principal denied that there was the educator by the name of Motswadi but she knew Motshowedi.
52. The Principal also denied the Applicant’s allegations why educator Motswetsi was moved from the foundation phase as there were allegations that she hit the learners but that she was not coping in that phase as she was not a foundation phase teacher.
53. My assessment of the contradictory versions of the Principal and the Applicant made me to come to the conclusion that the allegations of the Applicant of inconsistency were not sufficiently proven and the Respondent successfully rebutted that evidence. I therefore find that the Respondent was not inconsistent in the application of the rule.
54. The problem with the Respondent’s version is that its main witness’s testimony who was not the eye witness, the Principal’s testimony was riddled with contradictions of what actually transpired. The Respondent did not call the learner himself or any of the learners who were present in the class when the incident happened, in order to corroborate this shaky evidence of the Principal. I therefore drew an adverse interference against the Respondent for failing to call the relevant witness who is available to testify as outlined in Tshishonga v Minister of Justice and Constitutional Development and another (2007) 28 ILJ 196 (LC) at [108]-[112] in particular at [112].

55. The evidence of the statement written by the Principal is also challenged by the Applicant particularly with regard to the very important material aspects regarding whether or not she hit the learner despite the fact that the Applicant signed the statement. The important aspects of what was said by the Applicant were scratched and something else written on top of the previous version and the Principal alleged that the Applicant was aware of the changes she made whereas the Applicant alleges that the changes were made in her absence, yet the Principal signed the changes alone without making the Applicant and the mother’s learner sign the changes.
56. The critical question is if indeed the changes were made in the Applicant’s presence when she signed the statement, why did she not make her sign at that time. She could not give a clear explanation besides to state that it was an omission on her part. This evidence therefore casts doubt on the Principal’s statement without any other corroboratory evidence to support that the Principal indeed wrote what the Applicant said to her. The evidence of the mother of the learner would have been very crucial as she was also present when the statement was signed by the three of them.
57. On the basis of the above, I find the Principal’s evidence alone insufficient and very unreliable with her three contradictory versions of one incident in which she was not an eye witness; as her evidence has contradictions to the Applicant’s version of what was said by the Applicant to her and in the written statement.
58. As the Applicant correctly argued, looking at the charge, it alleged that the Applicant slapped the learner on the cheek and as a result he hit the window seal that cut him on the right eyebrow. However there was no evidence tendered by the Respondent with respect to proving the commission of this charge, except the uncontested very unclear picture of the injured learner who was identified as Thato Ramabu, the injured learner, with what looked like stitches on the forehead.
59. I would therefore tend to agree with the Applicant that due to the acrimonious relationship between the Principal and the Applicant, there is a high probability that the Principal seized the opportunity to get rid of the Applicant with the accusations levelled against her in contrast to what the Applicant told her had actually happened, whereas that was not the case.
60. I reject the Respondent’s arguments that nevertheless even if the Applicant disputed the charge, her concession to threatening the learner by raising her hand still makes her guilty of the offence, whereas threatening the learner was not the charge the Applicant faced at the disciplinary hearing and she was also not found guilty of that charge by the chairperson at the disciplinary hearing.
61. Overall and on my findings above, it is consequently my finding that the evidence which was tendered by the Respondent before me did not discharge its onus to prve on a balance of probabilities that the Applicant was correctly found guilty of the charge and that dismissal was an appropriate sanction under the circumstances. I therefore find that the Applicant’s dismissal was substantively unfair.
62. The Applicant prayed for retrospective reinstatement. I have no reason not to award the Applicant the relief sought. I will also order the Respondent to pay the Applicant
back-pay from the date of dismissal to the date of reinstatement at the rate of her basic salary at the time of the dismissal without loss of benefits.
63. The Respondent has not tendered evidence that the trust relationship between the Applicant and the Respondent has irretrievable broken down. The other important factor is that the Principal who had an acrimonious relationship with the Applicant has retired from the Respondent’s employment and is no longer at the school.

AWARD

64. I find that the dismissal of the Applicant, Mpho Makhado, by the respondent, the Department of Education-Limpopo, was substantively unfair.
65. I order the Respondent to reinstate the Applicant with retrospective effect without loss of benefits and on the same or similar terms of conditions of employment that prevailed at the time of her dismissal on 02 March 2022.
66. The Respondent is further ordered to pay the Applicant fifteen months (15) back-pay in the amount of R307 536,00 calculated at the rate of the Applicant’s monthly remuneration of R20 502,40 at the time of the dismissal.
67. Payment must be made to the Applicant on or before 03 July 2023.
68. The Applicant must report for duty on 01 June 2023.

Grace Mafa-Chali
ELRC Panellist