ELRC267-23/24WC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIA THE ZOOM VIRTUAL PLATFORM
Case Number: ELRC267-23/24WC
Panelist : L. MARTIN

In the matter between:

R. BENJAMIN
Applicant

and

DEPARTMENT OF EDUCATION – WESTERN CAPE
Respondent


ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. This matter was conducted on virtual platform on 12 December 2023, 26 January 2024 and 13 February 2024. The applicant, Ms Rofiekah Benjamin, was represented by Mr. V. Seymour, a practicing attorney. The respondent was represented by Mr. T. Seelamo, its labour relations officer.

THE ISSUE IN DISPUTE

2. Whether the respondent has perpetrated an unfair labour practice as contemplated in Section 186 (2)(b) of the Labour Relations Act 66 of 1995 as amended (the Act).

THE BACKGROUND TO THE DISPUTE

3. The applicant is employed as a permanent post level 1 educator from May 2020. In October – November 2022 the applicant was subjected to a disciplinary process by the respondent in terms of Section 18(1)(f) of the Employment of Educators Act 76 of 1998 as amended(EEA) regarding allegations of disrespect towards others and/or demonstrating abusive or insolent behaviour in respect of the acting principal arising from messages posted on a closed WhatsApp group consisting of members of the school governing body. The said messages are contained in the Charge sheet at page 11 – 12 of the Employers bundle of documents. She was found guilty of this charge.

4. The applicant was also charged with and found guilty of inciting other personnel to unprocedural and or unlawful conduct by sending WhatsApp text messages in the SGB WhatsApp group.

6. It is common cause that as a sanction the applicant’s salary was suspended for a month.

7. The applicant contends that she is a member of the SGB and that the messages she posted on the group relates to SGB business.
8. The contention for the applicant is thus that the respondent had usurped the powers of the SGB to discipline her. Her contention is that the power to discipline the applicant as an SGB member resides in the SGB and such power is derived from the code of conduct governing SGB members.

9. The applicant’s second contention is that the allegations do not constitute a misconduct and therefore does not warrant a sanction.

10. The contention for the respondent is that it is the employer of the applicant and therefore does have the right to implement disciplinary action against the applicant.

11. In terms of Section 138(7) of the Labour Relations Act 66 of 1995 as amended, I am required to provide brief reasons with my award. Accordingly, I shall only refer to the evidence I consider relevant to determining the dispute between the parties.

SUMMARY OF EVIDENCE AND ARGUMENT

12. Each party submitted a bundle of documents. For convenience the applicant’s bundle will be marked “A” and the bundle of the respondent “R”.

13. The applicant and Mr. Peter Abraham Oliver, an educator at the school, testified under oath for the applicant. Robin Charles Botes and Ms. Victoria-Amy Penny Immelman, an educator at the school testified under oath for the respondent.

The evidence for the applicant:

14. The applicant did write the WhatsApp messages referred to in the charges. These were written in a closed WhatsApp group for SGB members only and of which the applicant was one.

15. She had been legitimately co-opted onto the SGB even though there was no minute in the relevant meeting of the SGB that confirmed this.
16. Botes had relied on this in order to justify her removal from the SGB on the basis that she had not been co-opted in the first place. He had not discussed this with her. It was this that she had brought to the attention of the SGB in the WhatsApp so that it might discuss the matter.

17. There was never such discussion in the SGB, notwithstanding that she even brought it to the attention of Dearham, the SGB chair.

18. Under the previous principal there had prevailed a culture of raising points of concern. There had been years of application and hard work but after Botes arrived at the school the school started revolting. With nefarious characters coming onto the premises.

19. The applicant ought to have been disciplined by the SGB in terms of the code of conduct for members of the SGB.

20. Her relationship with Mr. Neumann, was open door while Botes was closed to participation and expression of opinion from some. He had told her in a staff meeting she could not speak.

21. In any event the matter of the closed door she had brought to the SGB was an SGB matter and for discussion there. It had nothing to do with Botes.

22. The message was one of respect of hard - fought gains and not allowing one person to bully us.

23. The school had moved from being very disruptive to disciplined over the years and then reverting again to disruptive with the change in management ethos. She referred this to the SGB for discussion. She had referenced Botes because of his refusing participation in a meeting. Whenever she went to the office it was already closed. So she wrote the message to the SGB with the intention of speaking or relaying issues to the SGB.

24. Regarding the message pertaining to not disclosing plans and being on the wrong side of the divide, this was regarding not following due process at the school and is the language used by unions i.e. the members had to follow processes and not found not to be doing so. It meant to be on the side that follows process.

25. Oliver confirmed that the school, unlike the school he had just come from, was productive when he arrived. It changed to an unproductive school in a split second after the arrival of Botes at the school with one’s opinion and voice silenced. One was not allowed to ask questions without fear or favour.

26. Under Mr. Neumann(Neumann) 15 minutes were allowed to express concerns. Botes would just come in, make announcements and hardly ask if there were questions from staff.

27. Oliver witnessed staff raising a hand to make a point but were not allowed to speak. Oliver himself had once been asked not to continue with his questioning. He was not allowed freedom of speech.

28. The applicant too had not been allowed to ask her questions and had been asked to leave. Botes had also not allowed others to speak and had asked them to leave the room. He was not open to listening to staff members.

29. On the arrival of Botes at the school Oliver saw many learners out of the classroom and roaming around. There was no effective learning or teaching taking place under Botes.

30. In the mornings concerned educators would raise their concerns but critical voices were silenced. Botes would not listen to the staff, some of whom had 15 years’ experience.


31. There is a teacher representative on the SGB and Oliver was made aware that their concerns were taken to the SGB. Conditions were getting worse and there was no feedback from the SGB. He did not think that the SGB was doing enough to resolve the problem with Botes.

32. Neumann had been dismissed and Botes had come as the acting principal in June 2022 until the end of that year. He did not know how Botes had departed the school and speculated that perhaps his contract may have ended.

33. The management style of Botes never met the interests of the community and things were falling apart.

The evidence for the respondent:

34. According to Botes there were simmering tensions at the school when he arrived.

35. He encountered mistrust from staff, both teaching and non-teaching and from the SGB. There were also suspicions towards his agenda and why he had been appointed at the school. This was his experience from members of staff, some learners, some of the community whether with direct links to the school or no links at all.

36. There was also poor learner discipline in some cases. These were learners who were dissatisfied regarding the dismissal of Neumann, the ex- principal.

37. He also got respect and support from other learners who offered assistance wherever they could give it. He experienced a stiff uncertain posture from the SGB to whom he was a complete stranger.

38. He and the other acting principal, Mr. Sherika(Sherika), were confronted by opposition and mistrust. It was a confrontational situation from members of the community.

39. There were issues with some posts i.e. not filled, some on contracts that should have already been converted. Regarding the SGB there were some irregular appointments and co-options some vacancies and resignations. The school finances had been depleted and in disarray. The was no money to pay teachers appointed by the SGB.

40. He advised the SGB to fill posts and adverts were placed. The number of teachers on the SGB was corrected from 5 to 2

41. The applicant has been teaching at the school for 4 years which comprised her total teaching experience. She is totally committed to the goal of ensuring the return to the school of the ex-principal who had been dismissed for gross misconduct.

42. He had extended a hand to the applicant in trying to find himself at the school. She did not respond and left the office without finishing the conversation. His working relationship with her was very challenging, stressful and draining.

43. At the very outset she together with Oliver and another disputed his appointment at the school and refused to accept that he was the legitimate principal of the school.

44. He had had to take disciplinary steps against them and institute charges. She refused to leave the SGB meeting. She then posted the Whatsapp messages and also refused to assist with the training of learners as peace officers.

45. There were complaints from two parents that she was not teaching their children mathematics.

46. At the start of a retrenchment process of SGB teachers the applicant took 5 staff members off the premises with her without authorisation. She neglected her teaching duties and together with an attorney sought his attention.

47. She had brought numerous baseless allegations against him. The applicant had also referred a dispute to the CCMA involving the SGB and then did not attend knowing she was an employee of the respondent.

48. Botes had not wanted to remove the applicant from the SGB but had wanted to correct its structure which was incorrect pertaining to the educator component which was greater than the parent component. Two other educators also incorrectly co-opted onto the SGB had complied and left but the applicant refused.

49. Immelman confirmed that she had been an educator at the school since 2014. From 2021 to 2023 she had also served on the SGB as the elected staff representative bringing comments from the staff to the SGB and vice versa.

50. Botes and Sherika took it upon themselves to reconstruct the school which lacked infrastructure.

51. Immelman had welcomed the objectives and direction of Botes. As Botes and Sherika were trustworthy and dedicated. They corrected flaws they found in the SGB.

52. She had forwarded the WhatsApp messages to Botes as she did not agree with them as they undermined his authority.

53. The messages felt like a call to arms against Botes, not to trust him and to oust him from the school with various underhanded tactics.

54. This made her feel that the conduct of the applicant was disrespectful and unprofessional and could lead to misconduct. It was disheartening when there was some help to shape the school to go forward.

55. Under cross examination she confirmed that she was aware of the code of conduct for SGB members and that it applied to all members.

56. She believed that the applicant had been co-opted onto the SGB until Botes arrived in 2022 and uncovered the flaws in the co-option which had as a result that the co-option was flawed.

57. Until that point she was not aware of anyone having objected to the co-options. Davids and Jacob, two other educators, who had also been co-opted in this manner bowed out gracefully but the applicant fought to stay.

58. Her conduct and that of all others on the SGB showed they approved of the co-options. She however objected when the flaws in the co-option were uncovered.

59. The WhatsApp messages were posted on a closed SGB group and the information intended for those members.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

60. It is clear from the evidence presented at this arbitration and the opening statement for the applicant that the applicant alleges conduct constituting unfair labour practice on two grounds.

61. There is firstly an allegation by the applicant that this matter is an unfair labour practice because of the conduct of the respondent in that it had disciplined the applicant in circumstances where it did not have the jurisdiction to do so as such jurisdiction lies within the SGB in terms of the code of conduct pertaining to SGB members.

62. The critical thing to note in this regard is that the alleged conduct of the respondent complained of by the applicant is not conduct as contemplated in S186 (2) of the Labour Relations Act 66 of 1995 as amended (LRA) from which the ELRC derives its jurisdiction to conciliate and arbitrate disputes of unfair labour practice.

63. On the first leg therefore of the applicant’s claim of an unfair labour practice it fails for lack of jurisdiction in terms of S186(2) of the ELRC to determine such an alleged unfair labour practice.

64. Regarding the second leg of the applicant’s case viz. that the misconduct alleged and the sanction attached thereto concerning the WhatsApp messages this may fall within the jurisdiction of the ELRC to determine unfair labour practice disputes under S186(2)(b) of the LRA as contemplated under “or any other disciplinary action short of dismissal.”

65. In the perusal of the WhatsApp messages I do not think it necessary to consider the evidence led in respect of the legitimacy of the applicant to be a member of the SGB or not.

66. I am of the view that a finding on the WhatsApp messages would have the same consequences regardless of whether the applicant was a bona fide member of the SGB or not.

67. This would accord with the view that the respondent does have the right to discipline its employee, which right it derives from the Employment of Educators Act 76 of 1998 as amended.

68. Regarding the question of bullying raised in this arbitration I will not be dealing with this per se as it does not form part of this arbitration. The only useful reference to the issue of bullying raised in this arbitration is to whether or not it assists in determining the messages to be a misconduct or not.

69. The fact that Immelman had taken the messages outside of the closed WhatsApp group shows that anyone can take messages outside of a closed WhatsApp group. There is before this arbitration no evidence as to the regulation of or conditions of membership prevailing in this WhatsApp group.

71. These circumstances are dangerous for an employee as it blurs the separation between the workplace and the SGB closed WhatsApp group.

72. The question that arises in this context is when can your posting be said to be unrelated to the workplace.

73. The applicant and Immelman and at least three others who are educators and therefore employees of the respondent were privy to the messages in the WhatsApp group.

74. In this WhatsApp group therefore the applicant was communicating with persons who are also colleagues in the workplace who would return to the workplace with the information gleaned in the WhatsApp group and therefore in the messages in question.

75. These are persons who found themselves on the WhatsApp group by virtue of the fact that the are employees rather than having some special expertise required by the SGB.

76. Immelman however was clearly deliberately on the SGB by virtue of her being the staff representative chosen from amongst the educators. To allege some sort of transgression by Immelman for having passed on the messages to Botes in these circumstances is absurd. The fact of the matter in any event is that it did come to the knowledge of Botes and had on him the impact he testified to.

77. The educators on a WhatsApp group such as this should in fact be extremely cautious when posting therein. These educators are at the same time as being persons on the SGB, employees of the respondent.

78. Comments made by such members of the SGB WhatsApp group remain comments also in their capacity as employees and would attract any adverse consequences of such comments made in the workplace.
79. It is the function of such persons on the WhatsApp group as is that of all members of the SGB to support the principal of the school and the educators of the school in the execution of their professional function.

80. To post messages in order to garner support for one’s own agenda in circumstances where there are legitimate avenues in law to pursue this, is inappropriate. It is especially inappropriate where allegations such as bullying are made against Botes in casu. This would constitute a misconduct which could validly attract a sanction.

81. I am satisfied that the WhatsApp messages posted by the applicant are destructive of the trust relationship between the applicant and Botes. This again is particularly so given the then prevailing circumstances at the school.

82. The messages are of the nature that the applicant was charged with (R11 and 12).

83. Regarding the contention of this being a closed WhatsApp group I am of the view that this implies that comments will remain in the group. There is no logic to this as can be seen in casu. The WhatsApps were taken outside of the group.

84. There is no evidence of the applicant herself having taken any steps to put in place any safeguards to prevent this from happening.

85. The evidence for the respondent in this regard is of Botes in fact having felt deeply offended by the WhatsApp messages

86. I have no reason not to believe Botes especially given the testimony of both the applicant and himself in their interactions with each other. There is also the testimony of Immelman which confirms her conclusion upon reading the WhatsApp messages.

87. I find this especially so given the prevailing circumstances of disruption at the school at the time.

88. More specific reference to the WhatsApp’s would also illustrate the non necessity of the applicant’s having to post messages which clearly aim to incite those for whom it was intended and threatening others who do not conform to her agenda.

89. The WhatsApp message alleging the bullying of Botes is unnecessary as it clearly refers to alleged bullying in the workplace. This is clearly a matter that the applicant could and should have reported to the respondent’s human resources department for investigation and discipline if necessary.

90. It is however inappropriate for the applicant to have posted messages implying that Botes was a bully as to do so would be to accuse him of having committed a serious transgression in the workplace without this having been established in a proper process. To do so is disrespectful and unprofessional and constitutes a misconduct.

91. I am satisfied to find that the suspension of the salary could equate to a fine of one month’s salary imposed by the respondent as provided for in Section 18(3) of the EEA. This would accord with the purpose of Schedule 2 of the EEA in that it supports constructive labour relations and is a form of corrective discipline in circumstances where the seriousness of the misconduct could have attracted a more severe sanction.

AWARD

92. This application for relief in terms of the Labour Relations Act 66 of 1995 as amended is dismissed.


01 March 2024