ELRC768-22/23LP

IN THE ELRC ARBITRATION
BETWEEN:

MABITSELA, K P EMPLOYEE
and
DEPARTMENT OF EDUCATION: LIMPOPO EMPLOYER


ARBITRATION AWARD

Case Number: ELRC768-22/23LP

Last date of arbitration: 20 September 2023
Receipt of closing arguments: 27 September 2023
Date of award: 6 October 2023

MATHEWS RAMOTSHELA
ELRC Arbitrator

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

[1] The arbitration hearing was held at the offices of the employer, Polokwane, Limpopo, on 10 May 2023 and 20 September 2023. The employee was present and represented by N J Chipu, an attorney. Eric Nyathela, the employer’s labour relations official, presented its case. The proceedings were digitally recorded. The employer presented a bundle of documents, which I marked as “Bundle A”.

[2] Both parties requested and were granted leave to submit written closing arguments within seven days. For the sake of brevity, the minutiae thereof shall not be repeated herein.

ISSUE TO BE DECIDED

[3] I am called upon to determine whether the employee’s dismissal was substantively unfair. Procedural fairness is not in dispute. Should I make any finding that the dismissal was unfair, I am expected to determine the appropriate remedy.

BACKGROUND TO THE ISSUE AND REASON FOR DISMISSAL
Background
[4] The employee was employed at Flora Park school as an educator. Following a disciplinary hearing, the employee was found guilty of assaulting a security officer and consequently dismissed. He denies committing the misconduct and prays for reinstatement.

Reason for dismissal: Misconduct

[6] As stated by the employer, it is alleged that the ground for dismissing the employee is based upon physical assault of a security officer.

SURVEY OF EVIDENCE AND ARGUMENT
EMPLOYER’S EVIDENCE
Selelo Sarah Motsoko (Sarah or security officer) testified as follows
[7] She is employed at Flora Park comprehensive school as a security officer. Ever since she was injured she is living with pains.

[8] On the morning of 22 November 2021 when the employee arrived at the school driving a mini-bus with children as passengers, she was standing at the other end of the gateway. The employee was ferrying learners as passengers in the motor vehicle he was driving.

[9] She requested the employee to disembark the learners so that they could walk through the pedestrian gate in compliance with Covid-19 rules. The small gate is for learners to walk through while the big gate is for motor vehicles and learners are not allowed to use the big gate.

[10] Having asked the employee to disembark the learners from the vehicle, his response was that he does not talk with “things that are not educated”. It was then that he disembarked from the vehicle.

[11] The employee then approached her, grabbed her by the throat and hit her down to the ground. When she was on the ground the employee went back to his car and stuck his head out through the window and said the following in Sepedi: "topa mpya yeo" ( pick up that dog)
[12] When she raised up her head she saw another man standing beside her. That man did not touch her.

[13] The employee drove his car and stopped it next to her legs and then alighted, picked her up and hurled her towards a dustbin along the pavement. Thereafter he went back into his car and drove through the main gate with the learners still passengers.

[14] Shortly after that, that man who was standing beside her walked her to the office. As they were walking, that man pleaded with her not to open any case against the employee because they work together.

[15] Upon arrival at the office they found Ruth standing on the doorway together with teacher Maluleke, Ma'am Malatatji and Rosinah. They asked the man who he was but he did not reply.

[16] While still standing there the employee arrived. The man was trying to talk to the employee and his response was that he does not talk to things that are not educated and he knows the law. Thereafter the employee left for the staff room and the man also left.

[17] She asked Ruth to call the principal as well as an ambulance and the police. Before going to the police station she firstly went to Rethabile clinic. After that she went to the police station to lay a criminal charge. The criminal proceedings are still under way and the employee has once appeared with the matter being remanded to 30 July 2023.

[18] She consulted with a doctor on the day of the incident. The police gave her a J88 Form (J88) to take to the doctor for completion. The J88 is on page 26 of Bundle A. After consulting, the doctor confirmed that she was injured at the back on the spinal cord. As it appears on page 28, the clinical findings mention complications of painful lower back right buttock.

[19] In addition to the doctor at Redimed, she also visited Mankweng Hospital. On page 72 is a J88 form that she was given by the police to take to Mankweng hospital.

[20] She denies that there is any other person who saw the incident because when the whole incident was unfolding, it was just herself and the employee. The other man who claims to have seen the incident could not be telling the truth because when he was in the office she was asked what happened and he could not help.

Maphuti Ruth Kolobe (Ruth) testified as follows:

[21] She is employed at Flora Park school as a finance officer. On the morning of the incident she arrived at her office and sat down to switch on the computer. While this computer was still switching on, another teacher, Ma'am Maluleka, came into her office and exchanged greetings. While they were in conversation she turned around and stood to look out of the window on the right hand side. She then saw the employee holding Sarah on her leg and hand approaching a dustbin next to the gate. She then started shouting and asked the companion to come and see what she was seeing. As she was shouting, she rushed out. Maluleka followed her.

[22] She called on Adonsina and Malatji who were sitting at the bench at the reception area. As they were standing outside they saw Sarah approaching the office and asked her to call the principal. Sarah started crying.

[23] The employee then came and went to the staff room. The witness asked Sarah as to what happened and she started crying. When Sarah came to the office she was in the company of Mr Mabitsela and man whom she does not know. She did not hold any conversation with the man.

Valencia McNeil (Valencia or Doctor) testified as follows:

[24] She is employed at Mankweng hospital as a family medicine registrar but currently is working at Seshego. She is a medical doctor and specialises in family medicine.

[25] On 26 November 2021 she consulted with Sarah at Mankweng hospital. Sarah reported that on the 22nd of November 2021 she was hit against the wall by a teacher at the school and sustained injury at the lower back. When she examined her she noticed that she had a limping gait. Further examinations of her lower back revealed that there was a swelling and tenderness. Those findings are keeping in line with a blunt trauma injury and that is basically what the J88 form says. Based on these findings, it confirms that indeed she was assaulted.

EVIDENCE FOR THE EMPLOYEE
Kgabo Petrus Mabitsela testified as follows
[26] On the morning of 22 November 2021 he arrived at the school driving a mini-bus with learners inside as passengers. He is in the business of transporting learners to school every day.

[27] Upon arrival at the gate he alighted from the vehicle and learners also alighted from the vehicle. He approached the big gate and attempted to open it. It was then that Sarah came approaching from the inside, trying to pull back the gate as he was trying to open and the tussle escalated into a tug of the gate between the two: one trying to open and the other trying to close. In the process Sarah missed the gate and fell just in the middle of the gateway making, it impossible for the car to pass.

[28] The witness then approached Sarah and tried to get her to the side by carrying her. He put her down and went back to his car and drove in. As he was driving past, Sarah was standing with Mr Thema. He drove past them and went to park his car at the parking lot. Thereafter he went to the staff room to take his learning material.

[29] At the time when he was having a struggle with the employee the learners were already inside the school yard because they walked through the small gate.

[30] The norm is that most of the time the gate at the school is always open but he is not sure at what time they open it but it closes at 7am. Security officers open the gate and close it at 7:00.

[31] He did not ask Sarah why, when he was trying to open the gate she was closing it, because of a similar incident that happened around March 2021 when Sarah closed the gate and locked it with the result that all the teachers that came afterwards were locked outside.

[32] On 22 November 2021 when ‘pulling and pushing’, he saw Mr Thema standing with the security officer when he was driving in.

Arnaus Makgwana Thema (Thema) testified as follows:
[33] On 22 November 2021 he arrived at the school to drop off his kids. As usual, he dropped them at the school and waited for them to walk into the schoolyard. As he was waiting, he saw the lady that was helping them at the gate rush to the big gate. At that time there was a minibus at the gate accessing the yard. The employee, who was driving the vehicle, was opening the gate.

[34] The lady who left the kids at the small gate was trying to close the gate as the employee was trying to open. As she was dragging the gate, she fell and it was then that he realised that something was amiss and that is when he ran to the big gate. As he was approaching the gate, the employee was holding the lady and carrying her to the side.

[35] As the employee was driving his vehicle to the parking lot and he was holding the lady, she stood up. He held up her hand and she stood up. She then went straight to the reception area and he followed her. When he got to the reception he inquired about the principal and was told that the principal was not around. It was then that he left.

[36] As he was approaching the big gate, learners from the minibus were approaching the small gate.

[37] He never spoke to the lady because it happened so fast. He did not see the employee grabbing the lady by the throat and throwing her down to the ground.

[38] He did not notice the employee and the lady talking to each other as they were pulling and pushing the gate. He did not notice the lady and the employee making any argument or involved in argument but what he saw is when there was pulling and pushing of the gate. He did not talk to the employee or Sarah as everything happened so fast.

[39] He saw the employee carrying Sarah with both hands. He did not even try to find out where the Sarah was injured. He was just in a silent assistance.

ANALYSIS OF EVIDENCE AND ARGUMENT

[40] In terms of section 192(1) of the Labour Relations Act 66 of 1995, as amended (the “LRA”), the onus rests upon the employee to establish the existence of a dismissal. In simple terms, the starting point is for the employee to present sufficient evidence that shows that he/she has indeed been dismissed.

[41] However, as already stated above, the employer admits that it has indeed dismissed the employee. Accordingly, I find that the existence of dismissal has been established.

[42] If the existence of the dismissal has been established, the onus is now upon the employer to prove that the dismissal was fair (vide section 192(2) of the LRA). It behooves the employer to establish that the dismissal was preceded by a fair procedure and that there was in existence a valid reason to justify such dismissal. The appropriate standard of proof is one on a balance of probabilities.

SUBSTANTIVE FAIRNESS

[43] The employee has been dismissed for assaulting a security officer at the school where he was teaching. It goes without saying that the nature of the misconduct is so serious that if the employee is found guilty, he would rightly have been dismissed and the sanction of dismissal would have been appropriate.

[44] The pertinent question is whether the employer has discharged the requisite onus of proving that the employee committed the alleged misconduct. While admitting that there was some physical contact between himself and Sarah, the employee is instead denying that he assaulted her in the alleged manner or at all. He testified in his defence and to corroborate his evidence he called the evidence of another, being a parent that was dropping his kids at school. The second witness for the employee, Thema, echoed the employee's denial that he never assaulted the officer.

[45] I have considered the evidence of both parties and on balance, it is my considered view and finding that the employee has failed to parry the allegations of assault. On the other hand, the employer has managed to discharge the onus of proving that indeed the employee committed an assault on the officer. I accordingly reject the evidence by the employee as well as that of his witness as improbable. My reasons for not accepting this evidence are as below.

[46] In his endeavour to explain why Sarah sustained serious injuries as there is irrefutable medical proof by way of J88 Form (J88), the employee alleges that during the scuffle between himself and Sarah, where they were tussling for the gate, it culminated with her accidentally falling down to the ground. In this regard the employee's evidence sounds highly improbable. He remains silent as to why he would even engage in a tussle with the security officer regarding the gate when in fact it is the security officer who controls access to school premises. Furthermore he alleges that he never uttered any words to the security officer yet they were engaged in a tussle that really was about whether the gate should be open or closed.

[47] It is also remarkable that the nature and extent of injuries sustained by Sarah, as evidenced by the J88, as well as the doctor whose evidence was not successfully challenged, are such that they are not consistent with someone who just fell down because of pulling or pushing a gate. On the whole the evidence by the doctor was not successfully challenged and it remains a reliable tool for gauging as to how far was the security officer was injured.

[48] The evidence by both the employee and his witness-that during the encounter with Sarah they never uttered any word to her or said anything to each other is really that which makes their evidence highly improbable. If indeed Sarah fell down because of the manner in which it is alleged by the employee and his witness, then one would have expected the employee to have held some kind of conversation with her, particularly to check how far she was injured. The employee and his witness present themselves as so caring and full of sympathy towards her when she allegedly fell down. They wanted to render assistance as she seemingly got injured, but then the very same people are not talking to her at all. This defies logic and common sense with the result that the version sounds highly improbable. The employee testified that he tried to help her by carrying her to the side, however he does not tell us whether he was really shocked or worried about whether she was injured. All he did was to pick her up like a baby-in-arms, never utter a word to her and then go on with his business of the day. Both witnesses alleged that each one of them, in one way or another, attended to her upon her fall down, but during this encounter never uttered any word to her. This is contrary to the natural reaction of someone who is trying to help another that is apparently injured and I accordingly reject the evidence and deem same a made-up story tailored by the employee and his witness conveniently to parry allegations of assault. I would not be drawn into any speculation or inference as to reason for the two to concoct the unacceptable version.

[49] Thema alleges that even when he walked with the security officer to the office he never uttered any word to her. This is despite her evidence that during that walk, he implored her not to open a case against the employee as they work together. Her version sounds more probable.

[50] In support of the J88, which she herself had compiled pursuant to consulting with Sarah, the doctor has testified that the injuries that she observed on Sarah were consistent with a blunt trauma and indeed confirms that she was assaulted. The doctor testified that she observed a limping gait and even during the arbitration hearing I could also observe that Sarah was walking with a limping gait. The doctor’s expert evidence was not successfully challenged and I have no reason not to accept the same as a reliable guidance as to how far Sarah was injured.

[51] Without repeating the minutiae of her allegations on how she was assaulted as already captured above, I arrive at the inevitable conclusion that the employer has succeeded to prove that the security officer was indeed assaulted in the alleged manner.

[52] As already stated above, assault is a serious offence that entitles an employer to dismiss a first offender.

[53] I accordingly arrive at the inevitable finding that the employee committed misconduct that was sufficiently serious to warrant a dismissal. Dismissal was thus the appropriate sanction.

[54] In conclusion, I find that the employer has proven that it had valid reasons for the termination of the employment relationship.

AWARD

[55] The dismissal of the employee, Kgabo Petrus Mabitsela, by the respondent, the Department of Education: Limpopo, was substantively fair.

[56] I dismiss the employee’s claim of unfair dismissal;

CCMA COMMISIONER: MATHEWS M RAMOTSHELA

Signed