ELRC615-20/21WC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN
CAPE TOWN

Case Number ELRC615-20/21WC

In the matter between

Zandisile Somwahla Applicant

And


Department of Education: Western Cape Respondent


¬¬____________________________________________________________

ARBITRATOR: Bella Goldman

HEARD: 22 November 2021, 23 November 2021; 24 November 2021, 1 April 2022, 10 April 2022, 14 June 2022, 19 August 2022, 30 August 2022, 22 May 2023, 23 May 2023 and 5 June 2023

DELIVERED: 14 July 2023

ARBITRATION AWARD
Details of the hearing and representation
1. The arbitration was held under the auspices of the ELRC in Cape Town. It was scheduled to be heard on eighteen days but was actually heard on ten days, being the 22 November 2021, 23 November 2021; 24 November 2021, 1 April 2022, 10 April 2022, 14 June 2022, 19 August 2022, 30 August 2022, 22 May 2023, 23 May 2023 and 5 June 2023

2. The applicant presented his own case. Mr Kaizer Mbobo, labour relations officer represented the respondent. The proceedings were digitally recorded.

3. The parties submitted numerous bundles of documents which were agreed as being what they purported to be. The respondent called six witnesses. The applicant testified but called no witnesses. It was agreed that closing argument would be submitted in writing.

Issue to be determined
4. I have to determine whether or not the applicant’s dismissal was procedurally and substantively fair in terms of the Labour Relations Act 66 of 1995 as amended (LRA).

Background to the issue
5. The applicant began his employment with the respondent in 2011 as an educator. On 1 October 2017 he was promoted to the position of deputy head at Nomzamo High School. As a result of an incident which took place on 27 May 2020 the applicant was on 20 July 2020 issued with notice to attend a hearing on 4 August 2020. On 30 August 2020 he was found guilty as charged and the sanction of dismissal was applied. On 7 September 2020 the applicant appealed the finding to the Minister of Education. On 11 December 2020 the Minister upheld the dismissal.

6. The alleged incident took place in the applicant’s office when the principal came to serve the applicant with notice to attend a disciplinary hearing with regard to an incident which took place on 20 May 2023 (different offence). The applicant was charged and dismissed for:

Charge1
It is alleged that you are guilty of misconduct in terms of section 18(1) (r) of the Employment of Educators Act, 76 of 1998 (hereinafter referred to as the Act) in that on 27 May 2020 you assaulted the principal, Mr Magubanto in your office by first putting your hands on his chest and then pushing him and/ or all holding onto his jacket and then pushed him.
Charge 2
it is alleged that you are guilty of misconduct in terms of section 18(1) (t) of the Act, in on 27 May 2020 you displayed disrespect towards your principal Mr Magubanto, or demonstrated abusive or insolent behaviour by telling Mr Magubanto to ‘get out of my office and/or asking him ‘what are you going to do, you are not going to disrespect me’.

7. The applicant was found guilty on both charges and the sanction of dismissal was applied. The applicant is challenging the procedural and substantive fairness of the dismissal. In terms of procedural fairness, he claimed that the chairperson of the disciplinary hearing Dr Sibanda was biased in that he had a social relationship with the Mr Mbombo, the initiator at the disciplinary hearing and the fact that Dr Sibanda was paid for his services by the respondent rendered him biased and subject to bribery.

8. In terms of substantive fairness, the applicant claimed that he is not guilty as charged; that the principal had been attempting to get rid of him for a number of years and there was a conspiracy between the principal and the respondent’s officials to get rid of him which was orchestrated by the principal. The applicant was issued with a final written warning on 5 June 2019 valid for six months for failing to supply formation requested by the principal.

9. The applicant was issued with a final written warning issued on 10 June 2020 which appeared to have been taken into account by the presiding officer when arriving at the sanction of dismissal and by the Minister when she upheld the dismissal. It should not have been taken into account given that it was issued after the incident in question, hence it could not have had a corrective effect but the final written warning issued on 5 June 2019 had expired but retains its corrective affect.

Survey of the evidence and argument
10. I have considered all the evidence and argument, but because the LRA (section 138(7)) requires an award to be issued with brief reasons for the findings, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute.

Respondent’s evidence
The evidence of Ms Nokwuzi Jobela, acting deputy head
11. During the morning session of 27 May 2200, she was asked by the principal, who was in the applicant’s office to come into the applicant’s office and to bring a pen with her. The principal explained to her that he was issuing the applicant with notice to attend a disciplinary hearing and that the applicant would not sign acknowledgement thereof and he wanted her to sign as witness to the fact that the applicant had been served. She signed; thereafter the applicant asked her and principal to leave his office.

12. When she entered the office, she saw that the principal and the applicant were angry they looked like they were going to have a physical fight. She signed as a witness to the fact that the applicant was served with notice to attend a disciplinary hearing. The applicant then asked her and the principal leave his office The principal did not leave, so the applicant placed his hand on the principal’s back so as to lead him out of the office, at that point the principal shouted ‘don’t touch me’. The witness closed the door so that nobody could hear what was happening. The principal was repeating ‘don’t touch me’. The applicant’s response was; ‘what are you going to do, you are not going to disrespect me’ she and the principal eventually left the office, as they left the applicant who stayed in his office said that ‘he did not like being disrespected in his office’.


13. The witness claimed that the relationship between the principal and the applicant was never good. The witness had worked with the applicant previously at another school where there had been no such problems. The witness had been asked if she could facilitate a meeting between the two where their problems could be aired and hopefully resolved. She attempted to do so with no success.

14. The respondent’s representative, Mr Mbobo declared Jobela to be a ‘hostile witness’ on the basis that he claimed that her evidence at this arbitration was not the same as that she gave at the disciplinary hearing. It was put to her that at the disciplinary hearing, she had said that the applicant pushed the principal twice. (This was substantiated by the chairperson’s report). Ms Jobela said that she believed her evidence at the arbitration hearing was the same as that at the disciplinary hearing.

15. Ms Jobela was asked how she would feel if someone placed his / her hand on her back, as per the applicant’s evidence so as lead her out a of room, she said would not feel comfortable, she would consider such an act it to be unacceptable behaviour and she would try to ensure that it did not happen again.

Nomukhulo Matholengwe, administrative clerk
16. Her office is very close to that of the applicant. On the day in question, she heard the principal ask Ms Jobela to come to the applicant’s office. After Ms Jobela went into the applicant’s office, she heard the applicant’s door close and the applicant and the principal shouting at each other; she heard the applicant say ‘get out of my office, you are not going to disrespect me’. Those were the only words she could decipher.

17. She confirmed that the relationship between the applicant and the principal was not good; the applicant did not respect the principal as he should have. The applicant’s refusal to respect the principal affected all members of staff. It was put to the witness by the applicant that she was lying as she was still a contract employee, she stuck by her version.

Cherie Meyer-William, circuit manager
18. She became circuit manager in May 2019, when her predecessor Dr Punt retired. Dr Punt had told her that the relationship between the applicant and the principal was not good. He encouraged her to attempt improve the relationship. He said that he had tried but that the applicant was not willing to change. A short while after she started, she attended the IQMS of the principal which the applicant also attended. She asked the applicant and principal to resolve their differences as their relationship was impacting the school, this intervention did not assist the relationship.

19. From when she commenced her employment as circuit manager the applicant emailed her on a regular basis with complaints about the principal. Her overall impression was that the applicant made no effort to be the principal’s right-hand man and to fulfil his role as deputy principal. She found the tone of the applicant’s emails to her to be disrespectful. She referred to various emails to substantiate her point; an extract of one is set out in my analysis. The applicant brought up issues which had nothing to do with him; he wanted to know why the caretaker who had been with the school for a number of years was not permanently employed. It was put to her that she supported principal; she claims to be on neither’s side; her priority was the school and its learners.

20. Much was made of the fact that the applicant did not refer an official grievance. The applicant claimed not to know about the official grievance procedure and that she should have and did not advise him to refer a formal grievance and that it was not her job to advise the applicant to refer a formal grievance.

Chris Mgubanto, principal
21. He has been in the employ of the respondent since 2014 when he was appointed as educator, in 2016 he was promoted to the position of deputy head at Nomzamo and in 2017 he was promoted to the position of principal at Nomzamo. From the when he commenced employment the applicant did not accept his authority, he gave some examples:

22. Further to a request by the department he asked the applicant to measure the sizes of different class types; He referred to emails between himself and the applicant relating to the measurements of the classes. The applicant found all sorts of reasons as to why he could not complete the task. The applicant per email told him that there were four class types and they were required to give measurements for three class types and the floor plan was not assisting him. The principal eventually delegated this task to someone else.

23. He referred to the educators group WhatsApp messages. On 21 May 2020 the principal informed the group that the marks had arrived at the district and that Mr Somwahla must collect them. The applicant replied on the group WhatsApp asking whether ‘this was a request or an instruction’. The principal’s reply was that it was a delegation to which the applicant replied must is not a delegation sir. Earlier on, on the same day the applicant had agreed to collect the marks.

24. On 20 May 2020 he asked the applicant to collect PPE from the district office, the applicant said that his petrol tank was nearing empty and he did not have money to pay for petrol and required a petrol voucher. The principal reminded him of the procedure which was that he had to pay for the petrol and then claim back the money. The applicant and principal were at this point shouting within hearing range members of staff. The applicant left and returned with a petrol voucher and placed it in front of the principal and insisted that he signs the voucher. He then told the principal that he should ask someone who lived live nearer to the office to collect the PPEs. Eventually the caretaker went to collect the PPE and he did not ask for petrol money in advance.

25. The principal on 27 May 2020 issued the applicant with notice to attend a disciplinary hearing with regard to the incident which took place on 20 May 2020. The applicant did not attend the disciplinary hearing. The hearing continued in the applicant’s absence and on 10 June 2020 he was issued with a final written warning with a recommendation that he be referred to the respondent’s wellness program to address his anger management.

26. The applicant was dismissed for the conduct he displayed when he was being served with notice to attend a disciplinary hearing. On 27 May 2020 he wanted to serve the applicant with notice to attend the hearing with regard to the collecting the PPEs and petrol voucher incident. He went into applicant’s office and gave him the notice and asked the applicant to sign acknowledgment of receipt. The applicant agreed to sign but said he could not find a pen in his office to sign with, the principal offered his pen but the applicant would not take it because of Covid regulations, the principal offered to sanitise it but the applicant would still not use it claiming that Covid regulations did not allow the sharing of pens. The applicant said that he would sign the next day.

27. The principal called Ms Jobela to witness the fact that the applicant had been served with notice of the hearing, when she came into the offices the applicant shouted; she will not sign the document. The applicant then came towards him shouting ’get out of my office’ and then pushed him on his chest towards the door, when the he did not move the applicant grabbed him by the lapels of his jacket and tried push him out of his office. The principal told him the applicant not to touch him to which the applicant replied ‘what are you going to do. As he and Ms Jobela were leaving, the applicant was shouting that he was not going to be disrespected by the principal. The principal went into his office locked the door and called the circuit manager. He was very upset and embarrassed by the incident as the other staff members heard what was happening. He denied that the applicant had placed his hand on his back but even if he had it would still have been unacceptable behaviour. The applicant was willing to touch him on his jacket but would not take his sanitised pen. The principal denied influencing the circuit manger, the labour relations department and the MEC for Education to dismiss the applicant.

28. The applicant put it to the principal that things exacerbated in December 2018 when the principal refused him permission to leave early to mark matric papers, the applicant’s reason for refusal was that the applicant still had not completed the work that had to be submitted before the end of the year. The applicant went without permission; he was asked to return which he did for two days. The principal wanted to instigate disciplinary action against the applicant but Dr Punt advised him to leave the matter as it was good for the school to have an educator who marked matric papers.

29. In January 2019 Dr Punt took them out for lunch in an attempt to address the issue of their relationship, Dr Punt had to leave early and asked the two of them to resolve their issues. Thereafter the principal asked applicant what his issues were to which the applicant replied that ‘he, the principal acts like he is the applicant’s boss but the principal is not his boss.

30. The applicant cross examined the applicant extensively for more than two days. His cross examination related to other incidents, the applicant was leading this evidence with the intention of showing that there was a conspiracy led by the principal to have him dismissed.

31. The applicant put it to the principal that the reason for his attitude was that they were about the same age and the principal regarded the applicant as a rival. He made the point that the principal was promoted to the position of principal in a very short space of time, in 2016 he was a deputy head and in 2017 he became principal. In short, he was promoted to the position of principal in an unusually short period of time. The applicant implied that something male fidei had taken place with regard to his appointment. The principal denied that anything male fidei took place with regard to this his appointment and denied being jealous of the applicant.

32. The applicant put it to the principal that he had on two previous occasions issued the applicant with notices to attend disciplinary hearings which were not followed through. The principal said that he decided to let those incidents go, although the applicant was issued with a final written warning 5 June 2019 valid for six months for failing to supply formation requested by the principal.

33. The applicant referred to an incident regarding computer equipment the applicant wanted to use, the principal refused to let him use the equipment on the basis that he wanted to use it. The applicant’s reply to the refusal was ‘you think the school belongs to you, ‘you are behaving like a small boy who wants to have all the toys’ at which point the principal threw the web cam at him.

Dr Punt
34. He saw a bright beautiful future for both of them and both of them regarded him as a father figure. He referred to the marking incident of December 2018, when the principal would not release, the applicant to mark matric papers. Despite the principal’s refusal the applicant went to the marking centre without permission and was called back to complete the schedules. He completed the schedules and then went back to the marking centre.

35. The principal was concerned about this incident and visited Dr Punt at his home to discuss the issue. De Punt advised the principal to let the incident go as Nomzamo is a young school and it would be good for them if an educator was marking matric papers.

Dr Sibanda, chairperson of the disciplinary hearing
36. The applicant accused the chairperson of being biased and having a social relationship with Mr Mbobo, the initiator. The applicant claimed that they would visit each other’s home. The applicant based his claim on the fact that Dr Sibanda asked Mr Mbobo chairperson where he had obtained the Juta last quarterly report. The applicant put it to Dr Sibanda that he was also biased as result of the fact that he was paid to chair disciplinary hearings by the respondent and was probably bribed by the respondent. The witness denied the applicant’s claims.

Bradley Ashley Robynties, assistant Director; collective bargaining and transformation
37. He explained the process to be followed when wanting to submit a formal grievance. He referred to the Personnel Administrative measures (PAM) which are promulgated in terms of the Employment of Educators Act which sets out the process for reporting a grievance. If the grievance is not resolved, the next step is to refer the matter to the bargaining Council. He referred to the hard copies of the slides presented at the training session, one of the slides set out the grievance procedure. The applicant denied that grievance procedure was ever discussed. The witness stuck by his version

Applicant’s evidence
Zandisile Somwahla
38. The applicant’s testimony was short which was surprising given the length of time he subjected the principal to in cross examination. His testimony with regard to the incident which took place on 27 May 2020 was that on that day the principal barged into his office without checking with the secretary that he was in. The principal placed a notice to attend a hearing with regard to an incident which took place on 20 May 2020 on his desk. He read through the notice and then looked for a pen with which to sign acknowledgment of receipt of the notice, he could not find one. The principal offered the applicant his sanitised pen. The applicant would not take it as result of Covid regulations which prevented the sharing of pens. 

The applicant told the principal that he would sign the acknowledgement of notice the following day, at that point the principal called Ms Jobela into his office and told her that the applicant was refusing to sign acknowledgement of receipt of the notice and he wanted her to sign to confirm that the applicant had received the notice. The applicant claimed he was not refusing to sign he was going to sign the next day when he had a pen; he claimed that the principal intimidated Ms Jobela when he asked her to sign as witness. The applicant felt that his space was invaded and he asked both the principal and Mr Jobela to leave, but they did not leave. 

The principal said that he was not going anywhere. The applicant told them that they were in his office and he had the right to tell them to leave, the principal insisted that he was not going to leave. At this point the applicant stood up and opened the door of his office. He put his hand on the principal’s back so as to lead him out of the office, at that point the principal said ‘dare touch me,’ he was very angry and was shouting, the applicant asked him what he was going to do if the applicant touched him. As the principal would not leave and given the violent look on his face, he decided that he must leave and he started packing his belongings. At that point the principal left with Ms Jobela. As they were leaving the applicant told the principal that he needs to respect other people in order to be respected which include the principal respecting the applicant.

39. The applicant denied pushing the principal either from the back or from the front. He denied assaulting the principal, he did not consider placing his hand on the principal’s back so as to lead him out as an assault and he denied being disrespectful, or that he demonstrated abusive or insolent behaviour by telling the principal to ‘get out of your office’ and or asking him what are you going to do, you are not going to disrespect me’.

40. The applicant did not lay a formal grievance as he had hoped the issue could be resolved with the circuit manager. He did not know that he could refer the matter further and was unaware of the official grievance procedure.

41. He referred to the December 2018 matriculants’ marking issue, in March 2018 the principal signed that he would provisionally release the applicant before the end of the year to mark matric papers. When it came to the final sign off in December 2018 the principal refused to release him; the principal claimed that the reason for this was that the applicant had not finished the work he had to before he year-end; finalising the schedules and reports that had to submitted to the district office and he did not have experience in how to finalise a year. The applicant denied that this was the case. The applicant went to mark; he returned to the school for two days to complete outstanding work and then returned to the marking centre. The principal wanted to take disciplinary action against the applicant but Dr Punt advised him not to. The applicant claimed that their relationship took a turn for the worse after the December 2018 marking issue.

42. The applicant did not testify on all the incidents he had cross examined the principal on.

Analysis of the evidence and argument
43. In a case where unfair dismissal is alleged it is for the respondent to prove on a balance of probabilities that the dismissal was both procedurally and substantively fair.

44. In order for the dismissal to be procedurally fair the employer should prior to dismissing the employee, conduct an investigation to determine if there are grounds for dismissal. In terms of this investigation the employer is required to do the following: notify the employee of the charges against him / her; give the employee reasonable time to prepare a response the charges against him / her allow the applicant to be assisted by a fellow employee or a trade union representative and after the investigation the respondent should communicate the decision taken and should preferably notify the employee in writing of the reasons for the decision.

45. Both procedural and substantive fairness were challenged in this case, I will address both separately. In terms of procedural fairness, the respondent complied with the provisions of schedule 8. The applicant claimed that the chairperson of the disciplinary hearing was biased in that he had a social relationship with Mr Mbobo, the initiator at the hearing. He claimed that Dr Sibanda and Mr Mbobo visited each other on weekends. He also claimed that Dr Sibanda was probably bribed by the respondent given that he was paid by the respondent. The applicant based his claims on the fact that Dr Sibanda asked Mr Mbobo where he had obtained a copy of Juta’s last quarterly report from. I fail to understand how from that he could conclude that Dr Sibanda and Mr Mbobo were friends out of school and that Dr Sibanda was bribed by the department. I find no evidence of bias. I find that the applicant’s dismissal was procedurally fair.


46. In order for the dismissal to be substantively fair the employer must prove that: there was a rule, the rule was reasonable, the rule was known to the employee or should have been known; the rule was broken by the employee and that dismissal was the appropriate sanction for the breach of the rule. The applicant did not dispute the rule, he claimed that his actions were not in breach of the rule and even if he did beach the rule, the sanction of dismissal was too harsh. The applicant claimed that both the presiding officer and the Minister were led to believe that the applicant had a valid final written warning on record when he did not. The final written warning he was issued with was not relevant to the incidents of 27 May 2000 given that the warning was issued on 10 June 2020 and the incident took place on 27 May 2020 it could not have the effect of correcting the applicant’s conduct in that it was issued after the incident in question.

47. In terms of substantive fairness, it was not disputed that the relationship between the applicant and principal was strained to the point that they were mostly communicating by email. I must determine if the applicant was guilty of one or both offences and if so whether the sanction of dismissal was appropriate.

48. Before I address the substantive fairness of the dismissal I quote from the applicant’s statement of case.
In the unprecedented situation that I as the applicants have found myself in, the use of blatant lies and complete distortion and fabrication of events and truth, as it lays itself in this whole matter, not to mention the collusion and concerted effort there was by the departmental officials and top ones all the way up to the Minister Mrs Debbie Scheffer I must say there was nothing to prepare me enough for it. 

As it played out it was clear that my fate was determined and sealed by these officials, starting with the complainant, the investigating officer and/or the departmental representative Mr Kaiser Mbobo, the circuit managers, Ms Cheryl Williams who now is the director and Dr Punt, the former circuit manager together with their biased presiding officer and above all of them the Minister and/or her office at large. I must say this, that this matter was long coming and I somehow was apprehensive that it will one day unfold and I was also warned by the principal on two different occasions, that apart from other bad things he was doing to me or intending to do he was busy with a plan to root me out of the system permanently and when he finally does that I must be prepared and I as the applicant or accused in this matter never took that lightly after getting to know him well as the deceitful and pathetic and convincing liar he is, I reasoned to start on a journey of building or collecting evidence to defend myself to any frivolous claims he may instigate against me in the future as now he has just done. Hence, I have preserved irrefutable and compelling collection of evidence is made up into four bundle that I have submitted bundles A B D and E.

49. The applicant’s opening statement and his closing arguments are written in the same vein, all these documents portray the applicant as victim of the evil machinations of the principal and others who planned to have him dismissed.

50. The applicant’s case was based on this conspiracy and he cross examined the principal and referred to many documents which he claimed proved this conspiracy, I found no evidence of any sort of conspiracy this but found much evidence of the applicant’s disrespect to the principal and the circuit manager, his emails to her are full of sarcasm and are disrespectful. Email from applicant to Ms Williams-Meyer of 24 March 2020

I must say that I purposefully took time to reply to this email as I was hoping that at least by this time you would have way to mitigate the situation. From where I am standing, I am afraid that we or I don’t have much time left before anything can be done as the closing date for this application is this coming Friday, 27 March 2020.

I have noted what you have said in your email amongst other things that we need to ensure the delivery of quality education to every child. I am very glad to submit to you that this is a motto I am carrying every day I go to work into class and am not sure what my might have made you even say that. As from where I am standing there is no such that has been raised either by the principal, HOD or the subject advisor. I will deem it just the mere advice but not anyway could be inferred to any failure by me to uphold what you have said.

There might be underlying issues that are attributing to the delays. I believe it would be fair that this issue will be brought to the fore so that I may know there is anything wrong or illegal that I have done not in the manner in which things are done here. More and above, I submitted to the you in earlier correspondence that the principal did not want to give any reason as he to why he was not signing the form instead admitted that his reasons are rather personal. I do not know anything that could be personal in our working sphere. If there is or was anything illegal that I have committed I believe he had many options to rescue the matter rather than this. I must admit further this direct violation of my rights as a dozen of a democratic and not an autocratic country
Notwithstanding what has been said above, as our immediate superior I would urge that you find a way to have this problem resolved, Madam, I will be pleased that this can be done tomorrow the latest as the closing date of the application is just around the corner. (SIC)

51. I find that the tone this this email to be disrespectful and condescending.

52. I have to determine this one incident which took place on 27 May 2020 however the applicant referred to many incidents before that date which he believed would prove that there was a conspiracy.

53. I find that this evidence indicates that the applicant challenged the principal’s authority from day one and that he was disrespectful not only to the applicant but to the circuit manger Ms Williams-Meyer. I find that the applicant telling the principal that the principal is not his boss and telling the principal in the argument about the web cam that the principal is like as a small boy who wants all the toys. I find that both incidents were disrespectful.

54. From day one the applicant refused to accede to principals’ authority. The applicant told the principal that he, the principal was not his boss. It may come as a surprise to the applicant but the principal was his boss. Even if one does not like one’s boss this does not permit insubordination, insolence, sarcasm and refusing to accede to the authority of the superior. The official grievance procedure was the correct forum in which the applicant should have raised his concerns. The applicant denied knowing of the grievance procedure, I find this to be extremely improbable given that he was well versed in legislation relating to educators, he even had extracts of the Employment of the Employment Educators Act, and there was proof that he attended training with regard to amongst other things the grievance procedure


55. As stated above the applicant was more focused on the conspiracy that the principal had allegedly orchestrated than the actual incident which led to his dismissal.

56. It was common cause that on 27 May 2020, the principal came to serve notice of a disciplinary hearing on the applicant and that he did not sign the acknowledgement of receipt as he did not have a pen. I find it strange that he refused to use a sanitised pen but touched the principal’s jacket which was not sanitised. The respondent claimed that the applicant pushed the principal twice to get him to leave the office whilst the applicant claimed that he placed his hand on the principal’s back to usher him out of the office. 

Given that by the time the applicant wanted the principal to leave his office the applicant and principal were shouting at each other I find it improbable that the applicant would place his hand gently on the principal’s back to usher him out of the office. Placing one’s hand on someone’s back in order to usher them out is a gentle act, given the fact that the applicant and principal were shouting at each other and that the principal did not want to leave the office, the most likely version would be that the applicant pushed the principal either on the front or back. The principal claimed that the applicant pushed him twice; this was corroborated by Ms Jobela at the disciplinary hearing although she changed her testimony at the arbitration; from the applicant pushed the principal twice, to the applicant placed his hand on the principal’s back so at to usher him out of the office.

57. Touching another person is not considered as an assault if the touch is done in a non-hostile and non-offensive manner: patting the shoulder of another person to attract their attention or pushing to get between others to get out of a crowded bus do not constitute assault. Touching a person on the back so as to lead them out will be considered as assault if the touch is unwanted as was the case in this situation which was that he applicant and the principal were shouting at each other. In this case I am satisfied that the applicant was guilty of assault on both versions.

58. For reasons stated I find that the most probable version is that the applicant pushed the applicant twice. Assuming that the applicant’s version is correct and he simply led the principal out of his office by placing his hand on his back the applicant would still be guilty of assault for reasons stated above.

59. With regard to the charge 2 or demonstrated abusive or insolent behaviour by telling Mr Magubanto to ‘get out of my office and/or asking him ‘what are you going to do, you are not going to disrespect me’.

60. I find the manner in which the applicant spoke to the principal to be insolent a subordinate cannot talk to his superior in that manner; telling him to get out of his office and that he was not going to be disrespected. The office did not belong to the applicant as he appeared to believe it did. The applicant was aggrieved that the principal came into his office in the first place. The applicant did not appear to understand the employer/employee relationship. The employer-employee relationship is a not an equal one and the employee is subordinate to the instructions of his manager. I find the applicant guilty on charge 2.

61. I find that the applicant is guilty on both counts. In terms of sanction, I am satisfied that the applicant did not have a valid final written warning on record as the final written warning was issued after 27 May 2020 and therefore that warning cannot be considered as corrective. However, the applicant was issued with a final written warning in June 2019 valid for six months for not following instructions; even though the warning expired it does not lose its corrective affect and counts as progressive discipline.

62. The applicant brought up the history of the relationship between himself and the principal and referred to things that were said and done. From that history it is apparent that the applicant had a history of disrespecting his principal and others and that the applicant should have been disciplined a long time before he was.

63. In terms of sanction, the applicant’s behaviour on both counts was such that it was dismissible with or without a final written warning. It is clear from his evidence and what he wrote in his statement of case as is re-elected at paragraph 41 that the applicant does not have regard or trust anyone from the Principal to the Minister and there can be no employment relationship without trust. Given that the applicant showed no remorse, and no respect there is no other appropriate sanction other than that of dismissal.


64. On the facts before me, I find that the applicant’s behaviour merited the sanction of dismissal. It is improbable that the applicant’s behaviour could be corrected given that he does not acknowledge any wrong doing and showed no remorse for his actions which he believed were justified

65. I find that the dismissal of the applicant to be procedurally and substantively fair.

Award
66. I find that the applicant’s dismissal was procedurally and substantively fair and his referral is dismissed.



Panellist: Bella Goldman