12 December 2024 – PSES394-24/25GP

Case Number: PSES 394-24/25 GP
Commissioner: M.A. HAWYES
Date of Award: 4th of December 2024

In the ARBITRATION between

Masilo Lazarus Mahlo
(Union/Applicant)

and

Department of Education: Gauteng
(Respondent)

AWARD
7.1 The Applicant’s dispute referral is hereby dismissed.
7.2 There is no order as to costs.

DETAILS OF HEARING AND REPRESENTATION
1.1 The matter was first scheduled for arbitration on the 11th of September 2024 online via Microsoft Teams. At this hearing both parties requested that the matter be dealt with at an in-person hearing. The matter henceforth continued at the Johannesburg North District situated at the corner of Biccard and Jorissen Streets, Braamfontein, Johannesburg. The hearing continued on the 30th of September, 10th of October 2024, the 4th, 5th 6th of November 2024 and was eventually finalized on the 20th of November 2024.
1.2 Mr. A. du Toit, an attorney from C.DE Villiers Attorneys Incorporated, represented the Applicant.
1.3 Mr. D. Manas, a labour relations officer, represented the First Respondent.
1.4 After the completion of evidence on the point in limine the parties requested an opportunity to submit written closing arguments by the 29th of November 2024. All parties made their submissions timeously and my award now follows.

ISSUE IN DISPUTE
Whether the Respondent committed an unfair labour practice i.t.o section 186 (2) (b) of the Labour Relations Act, no 66 of 1995 (as amended) (LRA).
This subsection of the LRA focuses on the question of whether the disciplinary action taken against the Applicant, being a sanction short of dismissal, was fairly imposed or not. In this case the disciplinary chairperson imposed a sanction of a three month suspension without pay.
The Applicant asked that the finding of guilt on the various charges be reversed and that the salary that he lost out on during his three months suspension be repaid to him.

BACKGROUND TO THE ISSUE
3.1 The Respondent employs the Applicant as a post level 1 educator at Cosmos City Secondary School (Cosmos).
3.2 Additionally, the Applicant is a site steward of the South African Democratic Teachers Union (SADTU), Malibongwe branch.
3.3 After the Respondent initially issued the Applicant with an “Audi letter” on or about the 3rd of April 2023, containing six alleged charges the Respondent, on the 18th of July 2023, preferred a total of four misconduct charges against the Applicant.
3.4 At the disciplinary enquiry the Applicant was only found guilty of charges one, two and three. The Applicant was found not guilty on charge 4.
3.5 At the arbitration hearing (despite this being a hearing de novo) the Respondent only elected to defend allegations one, two and three when a dispute was declared at the ELRC.
3.6 Allegation 1 reads as follows:
It is alleged that on 7th of April 2022, whilst on duty at Cosmos City Secondary School, you unjustifiably prejudiced the administration, discipline and efficiency of the department of education or the school in that you locked the school gate with your car, resulting in the gas delivery truck not being able to deliver.
3.7 Allegation 2 reads as follows:
It is alleged that on the 12 of April 2022, whilst on duty at Cosmo City Secondary School, you unjustifiably prejudiced the administration, discipline or efficiency of the department of education or the school in that you arrived at school at 7h30 and you blocked the school entrance by leaving your car at the gate making it difficult/impossible for other teachers to gain entry in the school premises.
3.8 Allegation 3 reads as follows:
It is alleged that on the 13th of March 2023, whilst on duty at Cosmo City Secondary School, you displayed disrespect towards other in the workplace or demonstrated abusive or insolent behaviour in that you insulted your colleague, the Principal Mr Moata in that you uttered the following words towards him “wanya wanyeta, wa gafa, foetsek” (you shit, you shit foetsek)
3.9 It is common cause that the Applicant only challenges the substantive aspects of the alleged unfair labour practice dispute and does not challenge procedural fairness of the disciplinary enquiry.
3.10 It is further common cause that the Applicant earns a monthly salary of R31 965.88.
3.11 In respect of the charges for which the Applicant was found guilty it is common cause that the Applicant parked his vehicle in front of the closed school gate on the 7th of April 2022.
3.12 It is also common cause that the Applicant blocked the school gate with his vehicle on the 12th of April 2022.
3.13 The South African Police Services (SAPS) were called out on the 12th of April 2022 following the incident.
3.14 The Principal implemented additional safety regulations regarding the movement of the schools’ personnel, referred to as the permission slips or the movement slips.
3.15 The parties made use of one consolidated bundle consisting of 70 pages. Further photographic evidence was added to the bundle during the course of the arbitration.

SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENT
4.1 The Applicant testified under oath and called a number of other witnesses to testify additionally.
4.2 The Applicant called the following witnesses namely Mr. Mokoena, a member of SADTU and a site steward and secretary at school level , Mr. Marokane, the departmental head for creative arts at Cosmos, Mr. Makobe, the departmental head of social sciences and direct supervisor of the Applicant and Mr. Mukhuswani, branch secretary of the SADTU Malibongwe branch.
4.3 The Applicant confirmed his responsibilities as a site steward and that an integral part of his responsibilities is to address certain complaints that are brought to him by various members of SADTU, with the principal.
4.4 The Applicant deposed that this was the reason why the relationship with him and the principal was strained. There was general consensus amongst all witnesses, both for the Applicant and the Respondent that the relationship between the principal and the Applicant was not good. The principal offered different reasons for this strained relationship and these reasons will be explored in my review of the evidence of the Respondent.
4.5 The Applicant testified, supported by the evidence of witness Mokoena that the union had lodged a grievance with the Respondent concerning the alleged conduct of the principal relating to the allocation of classes which was done without the proper consultation with teachers, the teacher to learner ration, which is supposed to be 1:29 but which was at a ratio of 1:100, further teachers being allocated subjects that they did not major in, without and form of consultation having been undergone prior to the teacher being allocated such subjects. The final allegation raised by the union was that certain monies raised in fundraisers was not properly accounted for.
4.6 Both the Applicant and witness Mokoena confirmed that the grievance was not resolved and that the principal does not entertain discussions of this nature.
4.7 The Applicant and Mokoena referred to an alleged verbal attack against the Applicant in a letter addressed to the Respondent dated the 25th of January 2022.
4.8 The Applicant and his witnesses contended that the allegations of alleged unfair labour practices by the principal were never meaningfully addressed by the Respondent.
4.9 It is common cause that the principal’s implementation of the issue of the permission and/or movement slips gave rise to the charges that the Applicant eventually faced.
4.10 The Applicant and his witnesses testimony was that there was no staff briefing and/or discussions held regarding the implementation of the permission slips, and accordingly, the permission slips were not enforceable against the teachers and/or employees of the Respondent.
4.11 The Applicant deposed further that on the 7th of April 2022 he was refused entry into the school upon his return from lunch. The security personnel refused to open the main gate of the school under instructions of the principal on the basis that the Applicant never had the required permissions slip to leave the school in the first place.
4.12 On the 7th of April 2022, the gas delivery truck could not deliver gas to the school. The Applicant contended that this was because there was a payment issue, alternatively, there being no proof of payment to the gas supplier, Afrox, on the day.
4.13 The Applicant and his witnesses collectively testified that due to the unhappiness and dissatisfaction of various SADTU members, the principal convened a meeting and the Applicant being the SADTU members spokesperson tried to resolve and discuss the issue of the permission slips with the principal, who then refused to entertain any formal discussions and dismissed the member’ concerns.
4.14 As a result of the principal’s dismissal of the SADTU member concerns the Applicant convened a separate meeting with only SADTU members and it was decided to express their dissatisfaction with the principal’s unilateral implementation of the permission slips by attending a peaceful demonstration at the main gate of the school on the 12th of April 2022.
4.15 During this peaceful demonstration the Applicant blocked the school gate with his car.
4.16 The demonstration was aimed to prevent the gate from being closed, and at no point in time was the aim to prevent teachers from entering the school premises or to cause any dissatisfaction or disruptions at the school.
4.17 The Applicant contended that various other SADTU members were involved in the demonstration but it was only the Applicant that was ultimately disciplined.
4.18 The Applicant, supported by the testimonies of his supervisors Makobe and Marokana, stated further that during the staff meeting of the 13th of March 2023, the principal refused to acknowledge the Applicant when the Applicant raised his hand in an attempt to comment on what the principal was saying during the staff briefing.
4.19 The Applicant also deposed that as the site steward at the school, he has a responsibility to speak up against wrongs being committed at the school.
4.20 Teachers had raised complaints about the allocation of classes and/or the excessive marking and grading of papers that that needed to be done with the principal. The Applicant himself had complained about being asked to teach learners on a subject that he was not familiar with. The principal’s response to him and other educators was to issue the Applicant (and others) with a blank timetable with the motivation that if a teacher wanted to complain then they should not teach.
4.21 At the meeting of the 13th of March 2023, the Applicant deposed that prior to the close of the meeting, he had informed his colleagues that they should not be afraid of the principal and the allegations and/or threats made by the principal regarding calling the learners’ parents to come and see why the teachers are not teaching.

SURVEY OF THE RESPONDENT’S EVIDENCE AND ARGUMENT
5.1 The Respondent called the following witnesses in response to the Applicant’s allegations of an unfair labour practice namely Mr. Moata, the principal of the school, Ms. Semenya, a PL 1 educator who teachers home language for grades 11 and 12, Mr. Adekoya, an educator who teaches accounting for grades 10 and 11, Mr Pound, an administrative clerk of the school and Mr. Silas Thosago, one of the school’s security guards at the time of the alleged incidents in April 2022.
5.2 Moata testified, inter alia, that on the 7th of April 2022, the security officer at the gate, Mr Silas Thosoga came to his office and told him that the Applicant’s car was blocking the entrance at the school gate and that the gas truck could not get inside the school premises to deliver gas.
5.3 The gas company Afrox had indicated that they could not deliver the gas outside the school premises and the truck left without delivering the gas.
5.4 Mahlo testified that he essentially did not have a problem with the Applicant, it was the Applicant who had adopted a negative attitude towards him when he became principal at the school after learning that the Applicant did not want Tshwana speaking persons at the school. Mahlo reiterated that tribalism was rife at the school.
5.5 Mahlo also testified that during his stint as an acting principal the Applicant was responsible for encouraging SADTU members to chant RRR at him which meant Remove, Reverse and Reinstate.
5.6 He testified that in terms of the Respondent’s policies the school had a movement book but no one was signing it and for that reason he introduced the permission slip to track educator’s movements.
5.7 Mahlo testified further that he called a staff meeting to introduce the permission slip, however, the Applicant was not at the meeting.
5.8 He testified further that the Applicant had insulted the security officers at the gate.
5.9 In respect of Allegation 2 the Applicant was asked to move his car but refused to do so. Mahlo testified that he called the district office and the police. When the police arrived they advised the Applicant that what he was doing was unlawful and they asked the Applicant to move his car and he did so.
5.10 Mahlo testified that there was no protest action as such and the rest of the teachers were standing around observing, which lead to teaching being delayed.
5.11 On allegation 3 Mahlo testified that since 2016 the Applicant had hatred towards him because he was Tshwana speaking and the Applicant was responsible for the breakdown in the relationship between them.
5.12 After convening and closing the staff briefing staff meeting the Applicant sought to re-open the meeting and as Mahlo walked out the Applicant uttered the insulting words “You shit, you shit, foetsek”.
5.13 Semenya testified that it was not the first time that SADTU aligned educators had disrupted meetings.
5.14 Semenya testified further that the principal has called a staff meeting to address various issues at the school.
5.15 She deposed further that the principal was addressing the issue of educators leaving the school without signing the movement book. She stated that the principal had emphasized that teaching and learning is a priority.
5.16 Semenya testified that after the meeting had closed the Applicant raised his hand and the principal refused to entertain him. As the principal was leaving the Applicant uttered the words mentioned in allegation 3.
5.17 On allegation 2 Semenya testified that she arrived late on the day and found the Applicant’s car blocking the gate. The principal called the police and they asked him to remove his car and he did so.
5.18 Semenya testified further that there was no demonstration and that the teachers were standing around because they could not enter and park their car inside the school premises.
5.19 Semenya testified that she is a SADTU member and that the day before members at a meeting that they will block the school gate. However, no SADTU members partook in the blocking of the gate only the Applicant.
5.20 Semenya corroborated Moate’s testimony that the principal had called a meeting to discuss the implementation of the permission slip. She confirmed that the permission slip is used during working hours and is still being utilized at the school to this day.
5.21 Adekoya testified that in respect of allegation 1 that he assists the school in buying stuff that it needs to function. On the 6th of April 2022 he placed an order for gas with Afrox. Payment was done and the delivery was scheduled for the 7th of April 2022. The gas could not be delivered because the Applicant had parked his car in front of the gate and had left the school premises and could not be contacted. The gas truck was therefore unable to deliver the gas to the school on the said day.
5.22 The gas is used to cook the meals for the learners at the school.
5.23 On allegation 3 Adekoya testified that he was present at the staff briefing held on the 13th of March 2023. He testified that the principal was discussing issues related to the curriculum and others. Towards the end of the meeting, he noticed the Applicant swearing at the principal. Although he could not remember the exact swear words used he knows an insult when he sees one.
5.24 Madibela testified that when he arrived at the school gate on the 12th of April 2022 at 7h30 he discovered the Applicant’s car blocking the gate. As he and the Applicant get on well he approached the Applicant to move his car so that he could enter. The Applicant’s car had been parked outside the school gate facing inwards.
5.25 The Applicant agreed to move his car and did so but after Madibela had entered the Applicant did a U-turn inside the school premises and came to park his car in front of the school gate again this time facing outwards.
5.26 The final witness for the Respondent was Mr. Silas Thosago. Thosago testified that in April 2022 he was an acting security official deployed by the Community Policing Form (CPF) working at the school gate.
5.27 On allegation 1 Thosago testified that he did not allow the Applicant to leave the school premises because he did not have a permission slip.
5.28 The Applicant then switched off his car in front of the school gate, got out of his car and left the school premises.
5.29 Thosago then testified that he contacted his supervisor, Mr Lethoko, and Lethoko contacted the principal about the incident.
5.30 Thosago testified further that Afrox arrived later to deliver gas but could not do so because the Applicant’s car was blocking the gate and they refused to offload heavy gas bottles outside the school premises.

ANALYSIS OF EVIDENCE AND ARGUMENT
6.1 The Applicant bears the onus of proving an alleged unfair labour practice in the way in which the Respondent disciplined the Applicant, on a balance of probabilities.
6.2 I find that there is clearly a history of animosity and tension between the Applicant and his principal. The genesis of this according to principal Moata was that the Applicant had made it clear even from the time that he held an acting principal position that he had no time for Tshwana employees at the school.
6.3 It is noteworthy that at no stage during the course of the arbitration proceedings did the Applicant deny this. I find that this incident together with the Applicant’s site steward union activities probably caused a breakdown in their relationship.
6.4 It is important to note that not too much time must be devoted to the relationship between Moata and the Applicant or the previous interactions that they may have with each other on various issues in deciding these merits. I must decide upon the facts of the disputes before me and then decide the merits of the charges after that.
6.5 I find that the principal was within his rights to implement a system (permission slip) to prevent educators leaving the school without reason.
6.6 It is common cause that the Applicant intentionally blocked the school gates on two occasions. It is probable that the reason that he parked and left his car on the 7th of April 2022, in front of the gate, was because of his interaction with security guard Thosago and his subsequent reaction to being requested to produce a permission slip.
6.7 It is common cause that an Afrox truck arrived to deliver gas and could not do so because the Applicant’s car was parked in front of the gate. I accept the evidence of Respondent witness Adekoya since he gave firsthand testimony on the incident involving the delivery of gas to the school. He was able to refer to supporting documentation that showed on a balance of probabilities that the gas ordered had been paid for and was therefore ripe for delivery.
6.8 The documentation produced by the Applicant to support his assertion that the school had not paid for the gas is unsupported hearsay evidence and as such is rejected as being unreliable.
6.9 I accept the testimony of all the witnesses that confirm that the gas truck arrived on the 7th of April 2022 and was unable to deliver gas to the school because of the Applicant’s motor vehicle blocking the gate.
6.10 The gas is used to cook food for a large group of pupils that are unable to afford food for themselves during the course of the school day.
6.11 In respect of charges 1 and 2 the Applicant was charged for a breach of section 18 (1) (f) of the Employment of Educators Act, no 76 of 1998 (as amended) (EEA) which requires prejudice to the administration, discipline and efficiency of the department of education.
6.12 It is common cause that Cosmos Secondary School forms part of the greater department of education.
6.13 The delivery of gas, the subsequent cooking of food and feeding hungry learners is part of everyday school activity. I find that the Applicant’s car blocking the front school gate prevented the Afrox truck from delivering much needed gas supplies which affected the efficiency of feeding the children. The exact degree of this efficiency breach is irrelevant. The fact is that it has occurred is sufficient. The Applicant displayed arrogant, selfish and unprofessional behavior which is unacceptable in a school environment. His behaviour was also a clear middle finger to the principal of the school.
6.14 The Applicant must not allow his disagreements with the principal to affect the basic rights of learners.
6.15 I find that the Applicant was correctly found guilty of this charge at the disciplinary enquiry.
6.16 A mere five days after the first breach the second occurred. It is common cause that at an earlier meeting SADTU staff members lead by the Applicant agreed to stage a protest action at the front school gate. The Applicant took the initiative and parked his car in front of the gate effectively blocking his colleagues to enter except for Madibela.
6.17 The testimony of the various witness from both sides as to whether there was industrial action as contemplated in the LRA is not clear. I find that the other SADTU educator members realized that engaging in some form of industrial action in front of the school gate would probably be in breach of the Respondent’s policies and refrained from participating. They too were impacted by the Applicant’s actions and I find that they mostly stood around watching which caused an unsolicited disruption to the normal morning school activities. Once again the Applicant demonstrated conduct designed to undermine and demean the principal.
6.18 The calling of the police who instructed the Applicant to move his vehicle is telling. The Applicant accepted the police injunctions to move his car because he was told that his actions were unlawful. The police were looking at the matter from a criminal law perspective i.e. that the Applicant’s actions could possibly serve as a chain reaction and spill over into the greater community.
6.19 The willingness of the Applicant to move his motor vehicle under police direction is proof that he knew that his actions were unlawful or unjustified.
6.20 The Applicant was also correctly found guilty of this charge at the disciplinary enquiry.
6.21 In respect of the third allegation the Applicant never specifically denied that he had uttered the insulting words to the principal. Neither did his witnesses. There was just an ominous silence on this aspect.
6.22 Principal Moate and Semenya corroborated each other’s testimony in all material respects on whether the Applicant insulted the principal. Given the Applicant’s dislike of Moate and the way that the meeting ended with the Applicant not being allowed to be heard, it most probable that the Applicant could not contain himself and called Moate a shit and told him to foetsek. It is common cause that Moate was on his way out of the meeting when the Applicant insulted him making it more probable that he told Moate to foetsek.
6.23 I find on a balance of probabilities that the Applicant acted in an insolent and abusive manner towards his manager Moate and was correctly found guilty of a breach of section 18 (1) (t) of the EEA at the disciplinary enquiry.
6.24 I find that the disciplinary chairperson clearly weighed up the influence of the Applicant and Moate’s dysfunctional working relationship and the misconduct itself in deciding the appropriate sanction to be imposed.
6.25 Provocation (which the Applicant alleges Moata directed towards him but which Moate denies) does not justify unlawful conduct but normally calls for a more lenient sanction. The chairperson (correctly in my view) did not impose the sanction of dismissal because he wished to afford the Applicant an opportunity to mend his relationship with the principal and further give him an opportunity not to abuse his position as a SADTU shop steward. In so doing the sanction imposed was corrective and punitive at the same time and serves as a good example of progressive discipline.