ELRC786-22/23FS

Panelist: Sally-Jean Pabst
Case No.: ELRC786-22/23FS
Date of Award: 18 July 2023

In the ARBITRATION between:

SADTU obo Ms SISIMOGANG MOGWERA
(Union / Applicant)

and

Department of Education Free State
(Respondent)


Applicant: Email: drlediba@yahoo.com


Applicant’s representative: Mr Desmond Serape - SADTU
Email: drlediba@yahoo.com


Respondent’s representative: Mr Solomon Moloi – DOE FS
Email: solomonmoloi168@gmail.com

DETAILS OF HEARING AND REPRESENTATION
1. The Applicant referred an unfair dismissal dispute to the ELRC in terms of section 191(5)(a) of the Labour Relations Act 66 of 1995 (“LRA”). The matter was arbitrated on 23 June 2023 – conducted and concluded virtually via Zoom, and video-recorded with the consent of the parties.

2. The Applicant, Ms Sisimogang Mogwera, was present and represented by her South African Democratic Teachers Union (SADTU) union representative, Mr Desmond Serape. The Respondent, the Department of Education of the Free State (FSDOE), was represented by the Respondent’s Labour Relations Officer, Mr Solomon Moloi.

3. The parties each submitted into evidence their respective bundles, and all was agreed between the parties as being what it purports to be. The parties submitted written closing arguments 7 days after the conclusion of the arbitration.

ISSUE TO BE DECIDED
4. The Applicant challenges procedural fairness of her dismissal, in that she was not given an opportunity to bring mitigating factors to the table after the guilty verdict and before sanction was passed; additionally that the Applicant waited 11 months for the outcome of her disciplinary hearing, rather than the required 5 days from the date of the disciplinary hearing.

5. The Applicant challenges substantive fairness of her dismissal in that the chair of the disciplinary hearing did not consider, alternatively disregarded, the evidence lead by the Applicant party – that the incident resulting in the injury on learner Nthati Lekhoba was an accident, rather than deliberate. Also, the Applicant disputes that she manhandled the learner Ofentse Phoshodi by pulling her over the table, rather, the Applicant claims that she had thumped with her hands on the table in front of her.

6. The Applicant wishes for retrospective reinstatement as relief.

BACKGROUND
7. The Applicant served as a Post Level 1 Educator in the service of the FSDOE, at Grassland Secondary School from 1 July 2010, albeit she was only appointed permanently into the position on 1 November 2012.

8. The Applicant had no previous written warnings on her personnel file.

9. She was earning a salary of R16,904.61 per month at the time of her dismissal.

10. On 10 September 2021 the Respondent subjected the Applicant to to a disciplinary hearing on the following charges, both of which she was found guilty of:
10.1. Assault on learner Ms Nthati Lekhoba – threw / hit the learner with a bunch of steel keys on the head resulting in the learner suffering a cut and bleeding.
10.2. Assault on learner Ms Ofentse Phoshodi – on or about 5 May 2021 manhandled the learner by pulling her over the table.

11. On 24 Aug 2022 the Applicant received the sanction of dismissal, which she appealed, and she received the outcome of her appeal upholding the dismissal sanction on 24 October 2022.

12. In terms of the misconduct, and a subsequent South African Council for Educators (SACE) investigation and disciplinary hearing (convened 30 September 2022), the Applicant’s name was, for a period of 5 years, removed from the SACE register of educators upon ratification of the sanction (on 10 February 2023) by the Ethics Committee of SACE.

SURVEY OF EVIDENCE AND ARGUMENT
13. The parties each handed up a bundle of documents which included the following:
13.1. Witness’ handwritten statements
13.2. Class Lists Grassland Secondary School
13.3. FSDOE Notice of Disciplinary Hearing with misconduct charges
13.4. FSDOE Notice of Dismissal Sanction
13.5. FSDOE Appeal Outcome – sanction upheld
13.6. School principal’s written reports of various incidences of misconduct by the Applicant
13.7. SACE Report of investigation and sanction
13.8. South African Schools Act (SASA) 84 of 1996 (excerpt)
13.9. Employment of Educators Act 76 of 1998 (excerpt)
13.10. Applicant’s salary advice
13.11. Pre-arb minute

14. The Applicant wishes for retrospective reinstatement in relief.

RESPONDENT’S EVIDENCE
15. Mr Tlhoriso Mohai, the school’s Principal at that time, testified that the first parent came and laid a complaint that the Applicant inflicted corporal punishment on the child. Mr Mohai called the Applicant in, and the Applicant admitted that she inflicted corporal punishment on the child, and apologised to the parent.

16. When the second complaint was lodged, by another parent well known to Mr Mohai as having been the chair of the school governing body, this time in the presence of the Deputy Principal as witness, once again the Applicant admitted guilt of the assault allegation and apologised for assaulting the child. Mr Mohai completed a logbook entry of the incident. At this point Mr Mohai made it clear to the Applicant that any further complaint of corporal punishment will not result in her being called in, but rather he will directly report her misconduct to the Free State Department of Education – the Respondent.

17. The third parent complaint of assault came, to which Mr Mohai reported the corporal punishment to the FSDOE immediately, an investigation ensued, then a disciplinary hearing at school in September 2021, and in October Mr Mohai received the sanction, which was served on the Applicant. She proceeded to appeal the sanction, and reported for work. A few days later he received notification that the MEC has upheld the dismissal sanction, and the Applicant was informed to leave.

18. Mr Mohai confirmed, in response to the Applicant’s procedural challenge of the dismissal that, through the appeal process, Ms Mogwera had been given a fair opportunity to bring her mitigating factors, to inform the sanction. He stated no explanation why the Applicant waited 11 months for her outcome.

19. The parents were very unhappy about the reported assault of their children. During the investigation it came to light that there were many children who had been assaulted by the Applicant but had never reported the assault to the school, refer to the marked names on the class lists in evidence. The unhappiness lead to parents wanting their children removed from the Applicant’s Natural Sciences class, but this could not be done. However these were not part of the charges brought against the Applicant.

20. The SACE report was described and explained, as the Council that regulates the conduct of Educators. He served the Applicant with a copy of the SACE report last year, in 2022. Mr Mohai testified that an Educator whose name is removed from the SACE register of Educators may no longer serve as an Educator of children.

21. Mr Mohai stated that, although he received the SACE report earlier, he waited for the outcome of the sanction from the Respondent, the Free State Department of Education, and handed this too to the Applicant.

22. Mr Mohai referred to the legislation in the bundle of the Respondent – the South African Schools Act of 1996, and the Employment of Educators Act 76 of 1998, prohibiting this form of misconduct that the Applicant was found guilty of.

23. During cross questioning Mr Mohai stated that the Ms Mogwera delivered good work, as an Educator. The Applicant’s representative Mr Serape referred to Mr Mohai’s log book entries in evidence in the Respondent’s bundle, going through each. They are dated 18 March 2020, 5 October 2020, and 6 May 2021 – the three incidences as testified to. He confirmed that these where his log book entries to keep detailed records of incidences. Further to these, the last log book entry with the visiting official from the FSDOE, circuit manager Ms Musarurgwa, dated 7 May 2021. The incidence was classified as both serious, and repeated, misconduct.

24. The SACE report was discussed, and the interpretation of the Applicant’s name being removed for 5 years from the register of Educators, and whether this means that she may, or may not, serve as an Educator. Mr Mohai stated that this means SACE is not giving her another chance to serve as an Educator, for 5 years, whereas Mr Serape for the Applicant disputes this interpretation, saying rather that her name removed from the register of Educators is suspended for 5 years.

25. Mr Mohai was asked whether any assault cases have been opened by parents, in light of his claim that the community of parents were so unhappy about the alleged assault on their children that they wanted their children taken out of Ms Mogwera’s class. Mr Mohai did not know of any police involvement or SAPS investigations lodged.

26. Mr Mohai during re-examination reiterated that the Applicant admitted to having assaulted the learners, on every occasion, in the presence of the parents, and although she apologised the first two times, nevertheless, yet another complaint came in thereafter, and the subsequent investigation yielded reports of many more assault incidences, as seen by the many children’s names marked on the class lists in evidence, of which written reports were taken.

27. The Respondent had the two learners Ofentse Phoshodi and Nthati Lekhoba testify to the incidences detailed in the Applicant’s charges.

28. Ms Nthati Lekhoba testified that, if they did not do their homework, Ms Mogwera would punish them “by hitting us at the back” – enacting her own upper back being smacked with a flat open hand. She was asked about the incident with the keys, to which Nthati explained that with a bunch of keys Ms Mogwera had “hit me at the top of my head”. Then “I was bleeding, and I was crying, and my classmate told me not to cry.” Later she went to Ms Mogwera, who told her “not to tell my parents, it was not deliberate”.

29. During cross-questioning it was put to the witness that Ms Mogwera had the keys around her hand, which was agreed to, and then when Ms Mogwera was stretching her arms forward, the keys accidentally hit on her (Nthati’s) head. Nthati disputed this, saying “No, it was not accidental. Ms Mogwera hit me with the keys. Like this.” – to which she showed repeated banging with fist downwards – “when I was sitting on my chair, at the door.”

30. The witness was referred to her ‘Apology letter’ in the Applicant’s bundle, and asked why she had written this letter. Nthati replied that some of the teachers came and told them that Ms Mogwera want them to write this apology letters, and that it means to not continue with the case because it affects their studies. The witness conceded she did not go to the doctor, because the wound was “just a little wound”.

31. During re-examination the witness confirmed clearly that Ms Mogwera “knew that she was hitting me with the keys, she was very angry.” When asked what had made Ms Mogwera angry, Nthati explained Ms Mogwera told her to take the textbooks to the office, but then her classmates told her (Nthati) to just wait a bit because they are still writing with these books, she must wait, so she sat down on her chair and waited. Then Ms Mogwera came suddenly and asked why she had not taken the textbooks, and got angry, and then hit her with the bunch of keys.

32. Ms Ofentse Phoshodi testified that Ms Mogwera was marking and called her to her desk to ask about marks then she pulled me by my school jersey and shook me and let me go. When I got home I went to sleep and my mother came home and said something is wrong, and she asked and I told her what happened, and she went to the school and spoke to the principal.

33. During cross-questioning Ofentse said that later they asked Ms Mogwera forgiveness and Ms Mogwera asked them forgiveness, and then they were fine. She disputed the Applicant’s version that Ms Mogwera “banged” on the table at all, and reiterated that she pulled her over the table by her jersey, and shook her. The other learners were just watching this happen. Ms Mogwera was angry and that is why she pulled and shook her, but later she was fine, and not angry anymore.

APPLICANT’S EVIDENCE
34. The Applicant testified under oath that despite the incidences, which was accidents, she has good relationships with learners and teachers – that the school principal agreed she was a good teacher.

35. On her way to the classroom she heard the learners making a lot of noise. She described how she had her keys twisted around her hand and wrist. She went into her class and tried to signal the class to stop making a noise by, as she described, shaking her hands up and down, with the keys dangling from her wrist. She said Nthati got hit on the head with the keys because she was sitting in the front of the class. She testified Nthati was her favourite, she trusted her like her own child. Even now, their relationship is very close, Nthati is her baby. It was only a ‘little wound’ – like Nthati also testified. Ms Mogwera disagrees with the child that it was deliberate – rather, she maintains it was an accident. She described how she checked the wound by parting the child’s hair, and saw it was not bleeding. It was just a “small knob”, not a wound. She rubbed some Zambuk-ointment onto the knob. She told Nthati that if anything is wrong later, like if she starts to not feel well from the knob on her head, she must come and tell her (Ms Mogwera) for her to take her to her doctor. She never told the child not to tell her parents about the injury.

36. Regarding the incident with the learner Ofentse Phoshodi, she testified Ofentse is her baby and she loves her, she is so clever, and their relationship is good. On the day in question she asked for the marks, and asked Ofentse “Why 18, not 16” regarding Ofentse having counted the marks incorrectly. The Applicant testified that “I tried to touch her (Ofentse) but she dodged” – to which the Applicant demonstrated how the child swerved her head to one side.

37. Ms Mogwera testified that she did not grab Ofentse, rather, she slapped with her own two hands on the table in front of her. She testified she did not pull Ofentse over her table, she merely slapped the table hard. The child is not speaking the truth.

38. Regarding the SACE report and the sanction imposed by SACE, the Applicant testified that SACE was not worried about her professional conduct, did not take away her teaching license, and only fined her R10,000.00 and instructed her to attend some classes.

39. During cross-questioning the Applicant was referred to the legislatory prohibition of corporal punishment in evidence, and she confirmed knowledge of this prohibition.

40. The Applicant restated that the injury on the learner Nthati was accidental and not severe, she applied ointment to the ‘bump’ from the keys that had accidentally slipped from her own hand. She had no idea why the incident with the keys were reported only much later. The bump never blead, and she never told the learner not to tell her parents. Rather, she told the learner that if she had any further symptoms from the bump on her head she should tell her mother, so that she (the Applicant) can take her (the learner) to her doctor.

41. The Applicant’s next witness Ms Lebo Mojai was unavailable to testify. She had only been available to testify in the morning. I offered the Applicant a part-heard arbitration to accommodate the witness testifying, but both the Applicant and Mr Serape were adamant that their case will not be prejudiced by not bringing this witness, as she was to be just a character witness.

42. The parties requested submitting closing arguments in writing.

ANALYSIS OF EVIDENCE AND ARGUMENT
43. It is trite that an arbitration is a hearing de novo. The Applicant’s dismissal is not in dispute and the onus is therefore in terms of Section 192 of the LRA on the Respondent to prove that the dismissal of the Applicant was fair. Section 188 of the LRA further states that a dismissal that is not automatically unfair is unfair if the employer fails to prove that the reason for dismissal was for a fair reason relating to the employee’s conduct and was affected in accordance with a fair procedure. This must be decided on a balance of probabilities.

44. The Applicant challenged both procedural and substantive fairness. She claims she was not given an opportunity to plead mitigation, that she was unfairly made to wait almost a year for her outcome, and that she is not guilty of the charges for which she was dismissed because everyone is lying and she is speaking the truth, and the sanction was not appropriate because her injuring the child was an accident and not deliberate.

45. Dealing with the dispute of procedural fairness, I agree with the witness Mr Mohai that the Applicant was afforded her right to mitigate the sanction when she appealed the outcome of her disciplinary hearing sanction. Although it is unfortunate that she had had to wait 11 months for her disciplinary hearing outcome, no evidence was before me as to her following up during that 11 months – alternatively that she lodged a grievance after a month or so in this regard, therefore considering she was unconcerned at that time, as to the progress of her outcome, I tend to consider this challenge rather an afterthought than a real concern to her right to fair labour practices.

46. Moving to the substantive fairness of the Applicant’s dismissal, it is clear from the evidence that the versions of the parties are materially different. It is therefore incumbent on me to decide which version must be preferred. The matter will therefore essentially turn on this finding with relation to the finding of guilty.

47. Both the learners corroborated what had been detailed in the charges, and all relevant parts of what the witness Mr Mohai testified to remained undisputed, save for his interpretation of the SACE sanction.

48. In Stellenbosch Farmers’ Winery Group Ltd and Another v Martell & Kie SA and Others [2003] (1) SA 11 (SCA) the Court held that where a commissioner is faced with two conflicting versions before him the commissioner must make a finding on the credibility of witnesses and on the probabilities of the two versions, to determine where the truth lies. The question that should be answered is whether the probabilities favor the party that bears the onus of proof. The Court further held that the credibility of a witness is in an extricable manner bound to the consideration of the probabilities of the case, the arbitrator should therefore resort to credibility where the probabilities fail to point which version embraces the truth more.

49. The SCA explained the technique generally used by courts in resolving factual disputes as one involving making findings on:
a) The credibility of the various witnesses. This will depend on the Court’s impression about the veracity of the witness, which in turn will depend on a variety of subsidiary factors such as:
i. the witness’ candor and demeanor in the witness box
ii. his bias latent and patent
iii. internal contradictions
iv. external contradictions
v. the probability and improbability of particular aspects of his version
vi. the caliber and cogency of his performance compared to that of other witnesses testifying about the same incidents.
b) The reliability of the witness, which turns on the factors listed above and opportunities he had to experience or observe the events and the quality, integrity and independence of his recollection of the event in question.
c) The probabilities of each conflicting version. This requires an analysis and evaluation of the probability and improbability of each party’s version on each of the disputed issues.

50. In my view, the witnesses of the Respondent were more persuasive and their demeanour more compelling than that of the Applicant. Mr Mohai came across as being honest and truthful, and the testimony of the two children did not waiver under cross examination. With regard to the evidence of the Applicant I am mindful of the fact that she is in fact the dismissed employee and may at points stretch her evidence to favour her case. Especially in light of the Applicant’s testimony that she told the learner Nthati to come and tell her if the head-injury caused her to feel ill later, is indicative that the injury should have immediately been reported to the parents.

51. Nthati notably testified that the Applicant had told her not to tell her parents about the incident where she got injured on her head with the keys yielded by the Applicant. Although the Applicant disputed this, I find the Applicant’s version improbable for various very compelling reasons. Even if I give the Applicant the full benefit of the doubt and believe her version, her admission that she told the child to report back to her if she later maybe start feeling ill from her head-injury is reason enough to conclude that, as a teacher, she should know to report any, all and every incident where a learner is injured in a classroom. She admittedly inflicted the injury, and if it really had been an accident, she would have reported the accident (no matter how small the ‘bump’) to the school principal. This especially in light of the fact that she had previous warnings where she had been called in to the complaints of parents about her assaulting their children, she knew the gravity of the situation. Therefore I can only concluded it much more probable than not that she tried to dissuade the child from telling her parents.

52. Similarly, the version of Ofentse was also much more probable, particularly in light of the Applicant’s own version – her admission that Ofentse ‘dodged’ from her – this indicates very clearly that the child at the very least knew that the Applicant was about to hurt her. The child after the fact was upset enough by the altercation that she went home and slept, and then told her mother what happened. This lead to the third parent-complaint to the school principal, which also revealed the incident weeks before with Ofentse’s classmate, Nthati and the bunch of keys.

53. The Applicant party’s evidence included that the two learners ‘apologised’ in writing for the trouble they had caused her (the Applicant) in bringing these charges against her, and that their relationships remain good. The child however testified that the apology letter was in answer to ‘teachers’ requesting this from them, and this was not disputed by the Applicant party. Whether the apologies were sincere or not is irrelevant, as nothing after the fact can undo the conduct of the Applicant in the classroom on both occasions, and the disturbing evidence that the misconduct is repeated months apart – this in spite of Ms Mogwera having been warned repeatedly and with urgency by the school principal. There was notably no dispute of Mr Mohai’s testimony that the Applicant had, in the presence of the learners’ parents, admitted to assaulting their children. This is strongly indicative of habitual misconduct not deterred from. Not even by confrontation with angry parents and an urgent reprimand from the principal.

54. In the background to the above most relevant evidence dealt with, I consider it prudent to just mention why I disregarded the class list with names of learners who also reported assault incidences during the disciplinary / SACE investigation, as well as the SACE disciplinary sanction which the Respondent repeatedly referred to. I consider the other assault complaints improper for allocation of weight in my decision because the Applicant was not charged with any of these apparent incidences, and no evidence was before me as to details of these. I therefore do not consider this evidence in making a decision. Also, the SACE sanctions should not inform my decision on the fairness or unfairness of the dismissal of the Applicant by the Respondent. The fact that I agree with the Applicant’s interpretation of her removal from the register of Educators being suspended for 5 years does not however lead me to believe her dismissal was substantively unfair. The sanction imposed by SACE is by no means indicative of the Applicant’s innocence of the misconduct, as the Applicant party tried to suggest. The two are entirely separate relationships, and I am only mandated to decide on the relationship between this Applicant and this Respondent – excluding SACE.

55. I am further also of the view that all the witnesses who testified had the same opportunity to observe the events, as the events unfolded, at the school where all the witnesses were present. The Applicant confirmed after her testimony that the only additional witness she would have brought was going to be a character witness for the Applicant. I was therefore confident that we left no stone unturned with establishing the facts of the events that transpired, for me to make an informed decision on. The Respondent’s witnesses’ evidence is much more probably the true version of events transpired, therefore I agree with the Respondent’s verdict that the Applicant is guilty of the misconduct.

56. Moving to the appropriateness of the sanction of dismissal which the Respondent imposed. In terms of Sidumo and another v Rustenburg Platinum Mines Ltd and others (CCT 85/06) [2007] ZACC 22; [2007] 12 BLLR 1097 (CC); 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC); 2008 (2) BCLR 158 (CC), although I am as commissioner duty-bound in terms of the LRA to determining whether the dismissal was fair, I am not given the power to consider afresh what I would do. Rather, I must simply decide whether what the Respondent did was fair – this while considering all of the relevant factors and circumstances. Relevant factors that impact fairness are:
a) the general vulnerability of Employees to unfair decision making;
b) the importance of security of employment;
c) the importance of the rule that was breached;
d) the reasons for establishing the rule including its reasonableness;
e) the harm caused by the Employee’s conduct;
f) the impact that it had on the trust relationship;
g) the effect of setting a precedent;
h) the reason why the Employer imposed the sanction of dismissal;
i) the basis of the Employee’s challenge to the dismissal;
j) whether additional training and instruction may result in the Employee not repeating the misconduct;
k) the effect of dismissal on the Employee;
l) the Employee’s service record.

57. In considering the above, and without having to deal with each of the above factors respectively, I can only find that the sanction of dismissal was appropriate under the circumstances.

AWARD
58. The dismissal of the Applicant, Ms Sisimogang Mogwera, by the Respondent, the Free State Department of Education, was both substantively and procedurally fair.

59. The Applicant’s claim is dismissed.


Commissioner Sally-Jean Pabst
ELRC Arbitrator