In the ARBITRATION between

SAUO obo Peter John Wilsnach

(Applicant)

And

Department of Education Gauteng
(Respondent)

Applicant’s representative: Ms. C. Trent

Applicant’s address:

E-Mail: charmainet@saou.co.za

Respondent’s representative: Ms. V. Mnisi

Respondent’s representative’s address:
Nomvula.mnisi-dhlamini@gauteng.gov.za

Details of hearing and representation

1. The arbitration regarding the alleged unfair labour practice, referred in terms of section 191 of the Labour Relations Act 66 of 1995 [as amended], ‘’the LRA’’ was heard on the 20th of August 2021 and the 20th of October 2021 at the offices of the respondent at 20 Goldman Street, Florida.

2. The applicant was represented by Ms. C. Trent an official from SAOU while the respondent was represented by Ms. V. Mnisi from Labour Relations.

3. The arbitration was electronically recorded, and handwritten notes were taken.

4. At the conclusion of the arbitration the parties have agreed to submit written closing arguments on/before the 27th of October 2021.

Issues to be decided

5. I must determine if the respondent committed an unfair labour practise when the applicant was issued with a final written warning and a fine of R12.000, 00.

6. Appropriate relief must be determined in the event of a finding that an unfair labour practice exists.

Background to the dispute

7. The applicant, who had been employed as educator at Hoërskool Roodepoort for approximately 3 years, pleaded guilty at the disciplinary hearing on a charge of assault, following an incident between himself and a learner, on the 25th of January 2019

8. The learner is a minor and for the purposes of this award will be identified as ‘W’.

9. The applicant was found guilty and sanctioned on the 15th of August 2019 and his subsequent appeal against the sanction was turned down on the 21st of January 2020.

10. Following unsuccessful conciliation a certificate of non-resolution was issued and the dispute was referred to arbitration.

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11. The applicant submitted bundle ‘’A’’ and the respondent submitted bundles ‘’B’’. The respective bundles were not disputed. Extensive video footage of the incident was also not disputed.

Survey of evidence and argument

The LRA requires that brief reasons be given in an award, therefore the following is a summary of the relevant evidence given under oath and submissions made in argument all of which is not reflected in this award but had nevertheless been taken into account.

Applicant’s evidence

12. The applicant called five (5) witnesses in order to prove, on a balance of probabilities, that the sanctions imposed amounted to an unfair labour practise.

13. The first witness, Mr. Peter John Wilsnach testified with reference to his written statement that W on the day of the incident ignored an instruction from a colleague, Mr Jacobs to go to his [Jacobs] class. Whilst ascending the stairs W then threatened him [applicant] and said that he would give him a ‘’p….s klap’’ and he then instructed W to go to the class of Mr Jacobs. W then came downstairs and poked him in the face with his thumb up and his index finger extended. W then said to him in a threatening manner ‘’you have f ol’’ to do with me’’.

14. Mr Wilsnach submitted that W then turned and walked up to him and proceeded poking his finger up his nostril and threatened him with a ‘’p…s klap’’ and then lifted his hand and slapped him on his left cheek.
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15. Mr Wilsnach testified that he only reacted ‘’after the third attack by slapping him’’ causing W to fell to the ground but he jumped up and grabbed his shirt, trying to choke him and pulling him towards room 16. It was testified that the incident occurred around 11:15 and that at around 11:41 W stormed into his class with a green glass bottle, grabbed his upper arm with force and said ‘’ I am going to strike you die today’’. Other learners then restrained W and removed him from class.

16. The video clips were shown, and, in this regard, Mr Wilsnach testified amongst others that after being struck in the face by W, he [W] turned away and said ‘’I will get my fathers gun’’ whereafter he then struck W on his right cheek with an ‘’open palm’’. W also again threatened by using his fingers in the sign of a gun. He then feared for his life as he did not know if W had a gun in his bag. After he slapped W, he [W] continued attacking him and he ‘’thought to protect myself., my life, my home and the safety of the learners’’. as he ‘’felt’’ his life was in danger and he ‘felt humiliated’’. His life was continuously threatened as he did not know what W would do.

17. Mr. Wilsnach submitted that W grabbed his shirt, attempted to choke him and kept pulling him but he at some point attempted to pull away and returned to his class to write his statement. Whilst doing so. W entered his class and approached him at his desk and grabbed his hand and said ‘’today I will kill you’’’’ and he then told Lungile to remove W from his class.

18. With reference to the video footage Mr Wilsnach submitted that W can be seen approaching his class with a glass bottle in his hand, but another learner removed this from his hand and placed on the ground and that he is seen pointing with a pen towards W towards the exit, where he eventually exits.

19. Mr Wilsnach submitted that the learners were shocked, and councillors were sent to the school. W was suspended and eventually expelled from school.

20. Mr Wilsnach submitted that he admitted slapping W in self-defence as he was assaulted.

18. The second witness, Ms Martina Levina van der Merwe testified that she had been employed by the respondent for 24 years and is the Principal of Hoërskool Roodepoort a position she had occupied for 2 years. She submitted that following the incident submitted a report to the respondent, obtained statements from witnesses and arranged support via ‘’teacher wellness’’.

19. Ms van der Merwe referred to the disciplinary record of W that was subsequently expelled by the respondent following the recommendation of the SGB subsequent to disciplinary hearing

20. The third witness, Mr. Andreas Spies testified that he had been employed by the respondent for 30 years and during 2019 was the acting HOD at Hoërskool Roodepoort and responsible for the merit and de-merits system.

21. Mr Spies submitted that on the 25th of January 2019 he heard a noise on the stairs and went out of his class to find out what was going on and saw the applicant and learners going up the stairs but after going hallway up the stairs, he returned to his class. Later he saw the applicant and W going pass his door and window and when he went outside his class, he saw that W had grabbed the applicant’s shirt, close to his throat, while the applicant was holding him back against his shoulders. He then got between them and managed to separate them.

22. Mr Spies testified that W had an extensive disciplinary record. He attended the SACE hearing where W and his parents did not show up, and after the video footage was shown, the case was closed.

23. The fourth witness, Mr. Theodorus Johannes Smuts testified that he had been employed by the respondent for 21 years and is an educator at Hoërskool Roodepoort, serves on the disciplinary committee and is the author of the code of conduct. He also attended the SACE hearing where W and his parents did not appear, and the case was closed after the video was shown.

24. The fifth witness, Mr. Jan Jacobs testified that he had been employed by the respondent for 6 years and is an educator at Hoërskool Roodepoort. He also attended the SACE meeting where W and his parents did not show up, and the case was closed following the showing of the video footage.

25. He made a statement following the incident and stated in it that the events started when he told W to attend his class, but this was ignored and went up the stairs. The applicant told W to ‘’check his attitude when talking to teachers’’. W then left and when he returned, he ‘’intimidated, threatened and provoked’’ the applicant by standing in his personal space and pointing a finger in his face and told the applicant that he would ‘’give him a p….s klap’’. W then slapped the applicant in the face and the applicant retaliated and slapped W in the face. W stood up and scratched and grabbed the applicant’s arms. He also had disciplinary problems with W, who had an extensive disciplinary record.

26. Mr Jacobs submitted with reference to the video footage that the interaction between himself, W and the applicant can be seen, as W was moving away from his class that he had to attend. W had a ‘’bad attitude’’ towards him and the applicant told W to ‘’not to talk to teachers with a bad attitude and don’t’ ignore their instructions’’. W then threatened that applicant and said ‘’don’t tell me what to do’’, pointed his finger at the applicant, swore at him and said ‘’I will give you a p….s klap’’. W also moved his finger across his throat as if he wants to cut the applicant’s throat and proceeded upstairs.

27. Mr Jacobs stated that W then returned, and that he again he instructed him to go to his class, but he again refused. W then approached the applicant, pointed his finger at him and slapped him against the cheek. The applicant retaliated and slapped W, who feel on the floor, but got up and grabbed the applicant’s arms. The statement W made after the incident is not true.

Respondent’s evidence

28. The respondent called no witnesses to testify on its behalf.

Analysis of evidence and Arguments

29. I must determine if the respondent committed an unfair labour practice when imposing the sanctions of a final written warning and a fine.

30. Section 186 (2) (b) of the LRA defines an unfair labour practice as follows:

(2) Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving –

(b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee’’

31. It is trite law that the onus in an unfair labour practice is on an applicant to prove that the conduct complained of, in this matter the imposing of the sanction, constituted an unfair labour practise.

32. The applicant called 4 witnesses to testify on his behalf.

33. The evidence of the principal Ms van der Merwe revolved around the extensive disciplinary record of W, his hearing by the SGB following the incident, and the implementation by the respondent of the SGB recommendation that he be expelled from school.

34. It is not clear why a principal should be taken away from her duties, not only during a crucial time of the school year but also at a time where normal challenges are exacerbated by the restrictions and challenges placed on a school system by COVID.

35. The evidence of Ms van der Merwe regarding the disciplinary record of W was irrelevant as it was common cause which means that there was no need to lead evidence around it. The extensive disciplinary record of W was contained in bundle A, was not disputed and thus proven. For the same reason the evidence of the other witnesses regarding the disciplinary record of W was irrelevant.

36. Equally irrelevant therefor was the extensive cross-examination of these witnesses about the disciplinary record of W.

37. Much was also made during cross-examination of corporeal punishment and ‘’inflicting pain on learners’’, a line of questioning that was not relevant as the applicant was charged with assault and not inflicting corporeal punishment or inflicting pain. The evidence clearly supports an incident revolving around assault and not that of an educator inflicting corporeal punishment and/or pain.

38. Evidence was led regarding the SACE hearing during which W and his parents did not appear and it was submitted that the case was closed, and the applicant apologised to after the video footage of the incident was shown. Evidence was led that the applicant was told that the issue should never have been escalated as he ‘’clearly was assaulted’ and that ‘’the parents enabled it’’ and ‘’it should never have been given to us and is not worth investigating’’. Contained in the bundle was a letter from SACE that belies this evidence. The letter dated the 25th of February 2020 states that the charges are ‘’provisionally withdrawn’’ as the complainant did not attend. It is also clear from the letter that the provisional withdrawal is done subject to the right of the council to reinstate the charges in the future.

39. The applicant pleaded guilty at the disciplinary hearing to assault which means that he admitted all the elements of assault that is defined as ‘’ the unlawful, intentional direct or indirect inflicting of violence to the body of another person’’. Based on this plea he was found guilty and submitted arguments in mitigation that amongst others revolved around his personal circumstances, the incident where he stated he was ‘’assaulted thrice’’ and that he ‘’was provoked and retaliated’’. The applicant then stated that he ‘’is deeply remorseful’’ and is willing to subscribe to a reasonable financial sanction.

40. Provocation is not a defence and thus do not exclude any of the requirements of assault in order not to be guilty of such. It can only be used in mitigation of sanction. It is clear that the applicant at the hearing only raised provocation. In his subsequent appeal it is important to note that such is only against the sanction, thus the final written warning and fine, and not against the finding of guilt on the charge of assault. However, upon reading the appeal it is raised for the first time that the applicant acted in self-defence against an alleged unlawful attack. This totally changes the playing field as it now must be considered if the applicant was indeed guilty of assault as self-defence impacts on the requirement of unlawfulness.

41. At the arbitration the applicant and his witnesses submitted that he acted in self-defence against the attack of W. It must be noted that even at the arbitration the plea of the applicant was that the sanctions be lifted and not that he was found not guilty of assault. This despite the fact that extended evidence was led by all witnesses regarding an act they considered self-defence which was according to them ‘’a constitutional right’’. If such is raised, as already said it must be determined if there was assault and an act in self-defence.

41. Having considered the evidence of all the witnesses including that of the applicant a number of concerns regarding their evidence must be pointed out.

42. Only two people, the applicant and Mr Jacobs were directly involved in the incident. Both testified by reading their written statements, written shortly after the incident into the record. They also extensively testified with regard to the video footage and the applicant’s evidence in this regard was supported by a written summary [read into the record] of what was observed on the video. Both witnesses also submitted additional evidence.

43. Concerning regarding this is that Mr Jacobs testified that W showed the applicant a gesture by pointing his finger across his neck which has the universal meaning of ‘’I will cut your throat’. The evidence of the applicant was that W showed him a gesture with his index finger extended and his thumb in the air in the universal sign of ‘’I will shoot you’’. Mr Jacobs did not mention this gesture in his written statement, and it can also not be seen on the video. The applicant during evidence confirmed that W showed the ‘’gun gesture’’ and made no mention of any gesture of ‘’throat cutting’’. Both witnesses testified that W said to the applicant ‘’I will give you a p…s klap’’. The video footage also shows that Mr Jacobs when W [with his one hand behind his back] approached the applicant turned around and walked towards his classroom. He then disappears from the video footage, but it is probable that he observed the incident from the safety of his classroom door. He does not intervene during the incident and is only seen again in the footage when he removes another learner from the scene.

44. The applicant with reference to the video footage testified that after W pushed his finger in his nose and slapped his cheek, said ‘’I will get my father’s gun’’, and then turned around. According to the applicant he was ‘’again threatened with the gun finger’’. This the applicant submitted led to him fearing for his life as he did not know if W had a gun in his bag and he ‘’thought’’ to preserve himself, his wife, kids and home and the safety of the learners’’ and ‘’felt his life was in danger’’. He then strikes W with his open hand on his right cheek.

45. The video footage does not support the version that W again ‘’threatened with his gun finger’’ and the statement of the applicant, made on the day of the incident in no way reflect the alleged threat made by W that he would get his father’s gun, nor the fact that he again showed the ‘’gun finger’.

46. Mr Spies testified that he heard a noise, left his classroom, saw W going up the stairs and returned to his classroom. He later saw the applicant and W moving pass his window and door, with W grabbing the applicant’s shirt close to his throat whilst the applicant holds W back on his shoulders. Mr Spies submitted that the ‘’struggled to get in between’’ but managed to free the applicant from the grip of W. This was not seen on the video footage nor testified to by the applicant who in his evidence with reference to the footage testified that Mr Spies exists his classroom, that W then ran away when he saw him that they then ascend the stairs to see where W have run off to.

47. The applicant, also with reference to the video footage pointed out where he is seen lifting his right leg, pointing with his right hand to his knee and saying to W that he is not scared of his threats. This belies the claim of fear, intimidation and acting in self-defence.

49. The applicant rendered evidence that after the incident where he slapped W, he returned to the class with a bottle in his hand and that W grabbed his arm. Other students then remove W from the class. The video footage indeed shows W entering the class with a bottle in his hand. He is then accompanied out of the class by learners who took the bottle and his bag from him. The applicant is then seen in the video footage exiting his class making gestures with his hand that he testified was directed at W showing him to leave. W then starts walking away and the applicant follows and positions himself it seems from the video at an exit that he points to, where W then disappears. This again is not the actions of person fearing for his life.

50. The applicant and his witnesses submitted that he was not aggressive, however, the footage shows at certain points that the applicant’s body language is aggressive, he points with his finger and made the gestures towards his pants that he is not scared of the threats made by W. If not aggressive, then indeed it can be seen as taunting.

51. It is clear that at first the applicant is assaulted by W who puts his finger up the applicant’s nostril and slaps him against the cheek. This much is clear from the video footage. The evidence of the applicant and his witnesses created the uncomfortable feeling that despite this clear attack, they exacerbated their evidence regarding the events, in an attempt to support their contention that the applicant acted in self-defence. W suffered the consequences of the assault on the applicant, he was charged, found guilty and ultimately expelled by the respondent, following the hearing and recommendation made by the SGB during which his atrocious disciplinary record was considered.

52. After W assaulted the applicant in this manner, the turns away from the applicant, who then slaps him from behind to such an extent that W fell down. This slap as is seen on the video, was rendered with quite some force.

53. In order to rely on self-defence the attack must be imminent or still on-going. If the applicant reacted whilst being poked in the nostril or slapped on the cheek and even later when he was grabbed by the arms, he might have successfully raised self-defence. However, when he slapped W, there was no longer an attack nor even an imminent attack as W had turned around and was walking away. The attack had thus stopped. In order to rely on self-defence, it must also be shown that the action was necessary in order to defend oneself. In this situation the attack on W was not necessary as the attacker, W was walking away. It can only be necessary to attack an aggressor if there is no other less harmful way to ward of the attack.

54. The reason raised by the applicant for slapping W was that W said ‘’I will get my father’s gun’’. As stated, the applicant did not mention this in his written statement made on the day of the incident. He testified at arbitration that upon hearing this remark ‘’’ I thought to protect myself., my life, my home and the safety of the learners’. as he ‘’felt’’ his life was in danger and he ‘felt humiliated’’. His life was continuously threatened as he did not know what W would do.

55. It is trite law that putative self-defence does not constitute self-defence, in other words it is irrelevant what a person thought namely that he is being attacked when there is no attack, and his actions would then not constitute self-defence.

56. Provocation is not a defence against a charge of assault and only serves as mitigation when a sanction is meted out. Even if the provocation is extreme, it cannot be used as a completed defence leading to a finding of not guilty. The law by its very nature must treat all people equally and ought not to differentiate between those who, when provoked take the trouble to discipline themselves and exercise self-control and those on the other hand who failed to do it. If the law were to afford adult, mentally competent people who do not control their tempers a complete defence it would mean that disciplined people are measured according to a standard to which the undisciplined need not comply. Such a double standard cannot be justified.

57. Therefore, the claim of provocation only mitigates the sanction as was clearly done in this matter, hence the sanction of a final written warning and a fine as opposed to dismissal.

58. Self-defence can also not succeed as there was no longer an attack or an imminent attack nor was it necessary. The applicant’s ‘’’thoughts’’ about being attacked does not constitute self-defence as it is putative.

59. In Mandla Skosana v CCMA and others (JR) 2160/15) (handed down on 6 March 2019) the Court held that in determining fairness, the proper context must be considered. There exists no separate requirement of procedural fairness in an alleged unfair labour practise. The proper enquiry thus entails whether the suspension of the benefit as had happened in that matter, was objectively justified and not irrational, arbitrary or mala fide. Contrary to an unfair dismissal dispute where a clear distinction is often drawn between substantive and procedural fairness. This is not the case when determining fairness in an unfair labour practise dispute and a more holistic approach based on all the evidence should be adopted.

60. The evidence shows that the applicant was guilty of assault. It is also clear that the respondent properly considered the mitigation he offered, that included showing remorse. He was thus sanctioned with a fine and a final written warning as opposed to the ultimate sanction of dismissal. During the arbitration the remorse seemed to have fallen on the wayside, as the issues stressed by the applicant and his witnesses revolved around his ‘’constitutional right to self-defence’’ and the disciplinary record of W.

61. Having considered the evidence, the applicant failed to show that the respondent committed an unfair labour practise when issuing the sanctions of a final written warning and fine.

62. During argument on behalf of the applicant, it was stated that the failure of the respondent to call witnesses is fatal. It was argued that the failure to bring witnesses to oppose the version of the applicant, indicates an acceptance of the applicant’s evidence, that therefor stands uncontested and must thus stand.

63. In Bargaining Council for the Furniture Manufacturing Industry, KwaZulu-Natal v UKD Marketing CC and others (2013) 34 ILJ 96 (LAC) it was held that an adverse inference may be drawn against a party for failing to testify only if the evidence of the other party calls for a reply. It is a prerequisite to the application of this rule that an adverse inference should be drawn from a party’s failure to call a witness, that the evidence that the party faces must have been of such a nature that at the time the other party closes it’s case, there was sufficient evidence to enable the Court to say, having regard to the absence of any explanation, that the other party’s version was more probable than not.

64. In Tshishonga v Minister of Justice and Constitutional Development and another (2007) 28 ILJ 196 (LC) it was held that the failure to call a witness is reasonable in certain circumstances, such as when the opposition fails to make out a prima facie case. However, an adverse finding must be drawn if a party fails to testify or place evidence of a witness who is available and able to elucidate the fact as this failure leads naturally to the inference that he fears that such evidence will expose facts unfavourable to him or may even damage his case.

65. The applicant had the onus to proof that the respondent committed an unfair labour practise and to this end he rendered extensive evidence, called witnesses and had shown the video footage of the incident. This evidence, as stated repeatedly in this award, does not show an act of self-defence. The respondent, when the applicant closed his case, had no need to reply. An adverse inference could only be drawn from the failure of the respondent to call a witness, if at the time, the applicant closed his case, there was no sufficient evidence to make a finding if he indeed acted in self-defence. The video footage clearly showed that this defence could never succeed.

Award

66. The applicant failed to discharge the onus he had to proof that the conduct of the respondent when issuing the sanctions amounted to an unfair labour practise.

60. The dispute is thus dismissed.

DATED AT PRETORIA ON THIS 9th DAY OF NOVEMBER 2021

Commissioner E Maree