In the matter between

SADTU obo J. BOILEY Applicant

And

DEPARTMENT OF EDUCATION – GAUTENG Respondent

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

The above matter commenced on 25 October 2012 and was concluded on 4 December 2012.

The matter was held at the offices of the Gauteng Department of Education, 111 Commissioner Street, Johannesburg.

The applicant Mr. J. Boiley appeared and was represented by Mr. Thabo Molebatsi from SADTU. The respondent Department of Education – Gauteng was represented by its employee, Ms. Jaffer.

ISSUE TO BE DETERMINED

Whether the dismissal of the applicant was procedurally and substantively unfair.

BACKGROUND TO THE ISSUE

The applicant was employed by the respondent as an Educator.

He earned a salary of R179 340.00 per annum. He started working for the respondent in 1981 and was dismissed on 3 August 2012 for misconduct.
The parties signed pre-arbitration minutes in which it was common cause that the applicant had pleaded guilty to the 2 charges brought against him.

The applicant’s issue was that the sanction of dismissal was too harsh. Further that he had been given 2 conflicting outcomes of the disciplinary hearing. One outcome was that of a final written warning while the other was dismissal. The applicant further argued that the procedure was unfair because the chairperson had not insisted that he (applicant) be represented given the seriousness of the allegations.

Subsequent to his dismissal, the applicant referred a dispute of unfair dismissal to the Education Labour Relations Council (ELRC) for resolution. The dispute could not be resolved through conciliation and a certificate of non-resolution was issued. The matter has been set down for arbitration before me.

SUMMARY OF EVIDENCE AND ARGUMENT

On behalf of the respondent, 3 (three) witnesses testified. The essence of their evidence was that the applicant was charged with misconduct in accordance with Section 17(1)(d) of the Employment of Educators Act 76 of 1998. It was alleged that the applicant assaulted 2 learners, the one by placing a plastic bag over his head and assaulting him with a plastic pipe. The other student by assaulting him with a plastic pipe.

The applicant was asked whether he wanted to be represented and he told Mr. Els, one of the witnesses at the pre-hearing meeting that he would represent himself. The question was again asked by the chairperson at the hearing and he said he would represent himself. This was according to Mr. Els who testified that he was the Investigator of the allegations. Mr. Els further testified that the respondent became aware of the incident after it had received a letter from attorneys who threatened to sue it (respondent) for the assault on the learner, which was described as unlawful.

The matter was investigated and it was then revealed that another Educator was involved. It was therefore not possible to conclude the investigation quickly, which resulted in charges being drawn and only issued to the applicant on 1 February 2012. The investigations were lengthy and several people were involved.

Mr. Els further confirmed that the applicant pleaded guilty to the allegations and was found guilty in terms of his own plea. Mr. Lexicon Mutshekwane testified that one of his functions as a Deputy Director Discipline and Dispute Management is to oversee disciplinary processes and quality assurance of the outcomes to ensure that they comply with legislation.
The outcome report regarding the applicant’s disciplinary hearing was forwarded to him. He then communicated with the chairperson and pointed out to him that the Act says dismissal is mandatory if an Educator is found guilty. The chairperson then changed the final written warning to dismissal. He was not compelled to do so. If he had chosen not to rectify the outcome, the respondent would have appealed in terms of its own disciplinary code.

The reason why the applicant was given both outcomes was because he had asked for the outcome of the chairperson and he was given both outcomes. The chairperson of the enquiry, Mr. Bobby Sello was also called to testify. He confirmed that he had asked the applicant whether he wanted to be represented and he said he would represent himself. He also confirmed that he had not been aware of Section 17 of the Employment of Educators Act. It was brought to his attention and after reading it he discovered that it made dismissal mandatory and he therefore changed his outcome to comply with the Act.

The applicant also testified but did not call any witnesses. His testimony was that he got a report from a colleague that 2 boys had taken money from another boy illegally. The 2 boys were called and interrogated. The one boy admitted and the other denied taking the money. He gave the 2 boys 2 strokes each with a pipe. He placed the plastic bag over the head of the one boy as a demonstration of what the police would do to him if the matter were to be reported to them.

The following day he received a letter from Tebogo Matlou’s father who was clearly upset that his son was punished. He indeed pleaded guilty but he had been given the impression that if he pleaded guilty he would receive a lighter sentence. He further testified that Tebogo’s father had demanded R20 000.00 from him for the assault on his son. He was not prepared to pay that amount as a lump-sum, which resulted in him (Tebogo Matlou’s father) reporting the matter to the respondent (Department of Education) through his attorney.

In closing, it was argued on behalf of the respondent that the applicant has not disputed that he was guilty of assault. He admitted to both allegations against him. It was further argued that he did not place the version that the plastic bag was merely used to demonstrate before the chairperson of the disciplinary hearing.

It was further argued that the applicant was not given 2 conflicting outcomes. He asked for the chairperson’s notes and they were given to him. That is where he saw the earlier sanction which had not been communicated to him.

On behalf of the applicant it was argued that dismissal was too severe a sanction. There was no evidence showing that the learner had suffered injuries. Reference was also made to the MEC’s outcome on the appeal the applicant had lodged.

ANALYSIS OF EVIDENCE AND ARGUMENT

The actual allegation of assault has not been disputed. It is also not disputed that the applicant used a pipe to assault the learners. The applicant argued that the chairperson should have insisted that he be represented. I do not believe the duties of the chairperson extend that far. It was sufficient that he reminded him of his right to be represented and also asked him whether he wished to exercise this right to be represented. The chairperson had no authority to override the applicant’s will.

Regarding the time lapse between the commission of the offence and the actual hearing, this was explained by Mr. Els in his evidence. The point was not taken further by the applicant and his representative in cross-examination.

There was an argument about the outcome by the MEC after the applicant lodged an appeal. It is not clear what point was made by referring to the outcome because the MEC dismissed the appeal.

Reverting to the harshness of the sanction, the allegations were indeed brought in terms of Section 17(1)(d) of the Employment of Educators Act, which reads:
“(1)An Educator must be dismissed if he or she is found guilty of: –

(d)seriously assaulting, with the intention to cause grievous bodily harm to a learner, student or other employee.”

In the applicant’s own version, the assault was committed with a pipe and to place a plastic bag over the head of a learner while assaulting him was to put salt to the injury. It was therefore in my view the kind of assault intended to cause bodily harm.

The Employment of Educators Act does not give any person making a decision on sanction discretion under such circumstances. It states that “An Educator must be dismissed…”

I can therefore not fault the decision of the respondent in this regard. I therefore find the dismissal of the applicant not to be unfair.

AWARD

The application for unfair dismissal is hereby dismissed.

THUS DONE AND SIGNED ON THIS 14th DAY OF DECEMBER 2012 IN JOHANNESBURG.

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PANELIST: NOMSA MBILENI