ELRC838-22/23LP

IN THE ELRC ARBITRATION
BETWEEN:

RADZILANI, A V EMPLOYEE
and
DEPARTMENT OF EDUCATION: LIMPOPO EMPLOYER


ARBITRATION AWARD

Case Number: ELRC838-22/23LP

Last date of arbitration: 12 December 2023
Receipt of closing arguments: N/A
Date of award: 18 December 2023

MATHEWS RAMOTSHELA
ELRC Arbitrator


ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

[1] The arbitration hearing was held at the offices of the employer, Thohoyandou, Limpopo, on 12 December 2023. The employee was present and represented by Mr T Monyai, a union official of SADTU. 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] The proceedings were digitally recorded.

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 Thedza Comprehensive school as an educator. Following a disciplinary hearing, the employee was found guilty of assaulting a learner 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 learner. The full and further details of the allegations of this act of misconduct are as contained on page 19 to 21 of Bundle A.

SURVEY OF EVIDENCE AND ARGUMENT

EMPLOYER’S EVIDENCE

X a minor learner at Theda Comprehensive School , at the time, testified as follows:

[7] He is an eleven years old learner and used to be a pupil at Thedza Comprehensive School. On 14 February 2022 he was present at school. When the employee came to the class, she came to give them homework. The employee left the class and promised to come and give them homework. But she did not give them homework. On the following day when she came to class she told them that she wanted her homework. Together with fellow learners they in unison told the employee that she did not give them homework. However the employee insisted that she gave them homework. They remained resolute and told her that she did not give them homework.

[8] The applicant then accused them of not doing the homework she had given them. It was then that the employee started beating them one by one using a hosepipe as a switch. (I have noted that the interpreter translated the ‘switch’ used as a sjambok, but those were not the words used by the witness and seeing that the charge sheet talks about a hosepipe, I deduce that this is the type of switch allegedly used. In its literal meaning a switch being a thin stick that bends easily and used for hitting someone, especially children as punishment).

[9] As a result of being bitten by the employee, he sustained injuries on his back as well as the top of his shoulder.

[10] After school he went home and took off his uniform. He was in the house with his mother and he was not wearing anything on top when she observed signs of injuries on his body. Upon being asked what happened to his body, he explained to his mother how the employee lashed him with a sjambok. To deal with his injuries, his father applied some rubbing ointment so as to ease the pain.

[11] He did not reported the injuries or the assault to any other educator. He was not taken to hospital for treatment and the assault was not reported to the police.

X’s mother (the mother) testified as follows:

[12] She is X’s mother. On 14 November 2023 when her son came back from school he found her at home because she was working from home. When he emerged from his bedroom he was not wearing his T-shirt but only his trousers. Looking at him she observed that there were some weals on his body. She took photos of what she observed and these pictures are in the bundle as from page 51 to 55. She physically examined his body to observe the extent of the injuries, noticing injuries at the back as well as on the shoulder.

[13] Photo number 52 shows injury sustained on his shoulder.

[14] Subsequent to the discovery of the injuries, she called the principal to explain that her son had been injured by the employee in a beating. The principal asked her to bring along the photo’s. His father said he will report the incident to the circuit office.

Evidence for the employee

Azwifare Vidah Radzilane testified as follows

[15] On 14 December 2022 after the assembly prayer she went to class 4B to review what she had taught the learners the previous week. Upon arrival in the classroom she requested the learners to give her the homework that she gave them on Thursday. On Friday she was not in class because she was busy with the sports activities.

[16] She started to mark the work and do corrections. She attended four periods in class 4B. X was in class 4D.

[17] After break she went to class 5C where she taught Natural Sciences and life skills. In 5C she spent four and a half periods, as she wanted to cover for the time that she was not in school.

[18] During period (nine) 9 she went to class 4D and found that there was no teacher there. She then asked the learners to submit the homework that she gave to them the previous Thursday. They responded by making some noise with some saying that she did not give them the homework while the others said she gave them homework. She then told them to take out books for Natural Sciences and it was at that time that the teacher of period 9 came into the class and therefore she herself had to leave the class.

ANALYSIS OF EVIDENCE AND ARGUMENT

[19] 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.

[20] 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.

[21] 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
[22] The employee has been dismissed for assaulting a learner at the school where she was teaching. It goes without saying that the nature of the misconduct is so serious that if the employee is found guilty, she would rightly have been dismissed and the sanction of dismissal would have been appropriate.

[23] The pertinent question is whether the employer has discharged the requisite onus of proving that the employee committed the alleged misconduct

[24] I have considered the evidence presented by both parties and having applied my mind to the facts before me, it is my considered view that the learner was indeed assaulted. In her own evidence, the employee has confirmed what the learner has testified to the effect that there was some dissension and argument as to whether she had given the learners a homework. It is thus probable that the employee felt disrespected by the learners that were arguing with her and then decided to apply the prohibited corporal punishment. In other words, the learner has established a valid reason why the employee could not resist the temptation to act in the alleged manner.

[25] The fact that other learners did not lodge a complaint or testified in this hearing does not per se lead one to draw an adverse inference that the assault on the other learners and X is unfounded. These other learners may have their own peculiar reasons for not pressing charges against the employee and what concerns us here is the cogency of evidence presented in an endeavour to show that at the very least X, whose parents reported the incident to the school authorities, was indeed assaulted in the alleged manner.

[26] The evidence of the learner's mother was also not successfully challenged and one would wonder why she would invent such a version when she has testified that she did not even know the employee. Despite the very cross-examination that was aimed at discrediting her evidence, the mother was resolute in proving that she was not even told by the learner that they had been assaulted but instead she on her own observed some weals on the body when the learner came to the room without his T-shirt on.

[27] The mother also testified that she took pictures of the learner's body and observed that they were signs of being beaten. Having carefully studied the pictures on page 51 to 56 of the bundle, I could easily discern that indeed there was discoloration on the body which show that indeed the learner was hit by an object. Both on the shoulder and the back, one could easily see that there were inconsistencies in the complexion of the body. The vertical discoloration on the back of the learner is consistent with someone who has been assaulted with an object as defined or alleged by the learner.

[28] In his own evidence the learner has testified that he had no intention of telling anyone about their assault, which shows that he had no ulterior motive to cause trouble for the employee. I can thus safely deduce that the young learner had resigned himself to his fate and may have felt helpless and/or was of the view that the employee was within her authority to take the switch to him and his fellow learners. Given his tender age of eleven eleven (11) years, I would not be surprised and I would not fault him for not immediately reporting the incident to other educators and/or the school principal. He did not even intent and did not report it to his parents and it was only by sheer chance that her mother was able to observe something amiss on his naked top body when he presented himself topless.

[29] It is the employee's argument that because the learner never sought any medical attention nor laid a criminal charge with the police, therefore the beating did not happen. I am of the view that such inference should not be drawn because people act differently to the same situation and we must bear in mind that here we are dealing with an underage child.

[30] By the same token the mere fact that other learners did not testify during this hearing does not on his own impel one to a conclusion that the employee did not treat the learners, inclusive of X, in the alleged untoward manner. One would not expect the same assertiveness by children of this age in the same manner that should be expected of adults.

[31] The learner suffered injuries and this shows that the assault was indeed committed with intent to do grevious bodily harm. By using an instrument, instead of her bare hands or anything lighter when administering the prohibited corporal punishment, the employee has shown intent to do harm. I thus agree with the employer that she has contravened the provisions of section 17 of Employment of Educators Act, 76 of 1998 (as amended).

[32] 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.

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

AWARD

[34] The dismissal of the employee, Azwifare Vidah Radzilani, by the respondent, the Department of Education: Limpopo, was substantively fair.

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

CCMA COMMISIONER: MATHEWS M RAMOTSHELA

Signed