IN THE EDUCATION LABOUR RELATIONS COUNCIL
In the arbitration between

NAPTOSA obo MFAZWE NTOZINTLE APPLICANT

AND

DEPARTMENT OF EDUCATION EASTERN CAPE RESPONDENT

ARBITRATION AWARD

CASE NUMBER: ELRC344-24/25EC
DATE AWARD SUBMITTED: 11 APRIL 2025
NAME OF PANELLIST: SIZIWE GCAYI

DETAILS OF THE HEARING AND REPRESENTATION

1. This matter was set down for arbitration, under the auspices of the ELRC in terms of section 191(5) of the Labour Relations Act, 66 of 1995 (“the LRA”) as amended, on 17 September 2024 and concluded on 25 March 2025, at the Department of Education offices and Crewe Primary school in East London. Mr Aaron Mhlontlo, an official from NAPTOSA, represented the Applicant, Ntozintle Mfazwe. Mr Toto Tsheko, an official, represented the Respondent, Department of Education Eastern Cape.
2. The proceedings were electronically and manually recorded.
3. The Parties handed in one bundle of documents in support of their respective cases. This is referred to as bundle A.
4. The parties were given until 04 April 2025 to file their closing arguments with the ELRC. Closing arguments were received by the Council from both parties. The submissions made by the parties were taken into consideration in arriving at a fair decision.

ISSUE TO BE DECIDED.

5. I have to decide whether the dismissal of the Applicant was substantially and procedurally fair, and if not, decide on the appropriate relief in terms of Section 193 and 194 of the LRA.

BACKGROUND

6. The Applicant was employed by the Respondent as an educator since 01 July 2019 at Noncedo Senior Secondary School, and earned a monthly salary of R28198.00. His services were terminated on 18 July 2024. The relief sought by the Applicant is reinstatement. The Applicant was dismissed for acts of misconduct with the following charges:
   1st charge: “You contravened section 17[1][d] of the Employment of Educators Act in that: You on or about May 2023 seriously assaulted a learner Kungawo Stiller by hitting her on her hands when she took time to return from a bathroom break and left some marks in her hand. You also seriously assaulted a learner Lizalise Zonele by hitting her hands and left some marks on her hands and arm, all this happened at Noncedo High School”.
   2nd charge: “You contravened section 10[1] of Employment of Educators Act in that: You on or about May 2023 administered corporal punishment at a school to learners Kungawo Stiller and Lizalise Zonele by hitting them.”
   3rd charge: “You contravened section 18[1][i] of Employment of Educators Act in that : You on or about May 2023 failed to carry out a lawful instruction by the principal of Noncedo High School refusing to teach grade 10 economics as instructed.

SUMMARY OF THE EVIDENCE
Respondent’s case

7. The Respondent led the evidence of three witnesses. Their evidence is summarised below:
8. Mr Thulani Arthur Mzila [“Mzila”] testified as follows: He was in the employment of the Respondent holding a position of school principal at Noncedo combined school. He also testified about his duties. The school had 18 educators. The Applicant was known to him. The Applicant joined the school in 2019. He taught Accounting, grade 10-12, EMS grade 8-9, Creating arts grade 8-9. In relation to acts of misconduct by the Applicant at the school, he mentioned that there was an incident of a boy that attempted to copy schoolwork, the Applicant strangled him. The Applicant was called, and the issue was resolved. The Applicant apologized to the boy and the apology was accepted. There was also an incident of a girl who was hit by the Applicant with the duster, that issue was also resolved, the Applicant apologized to the girl. Students between 6 & 7 doing grade 8 alleged that they were given hidings by the Applicant.
9. In relation to charge 1, the charge was read on record. It was his evidence that the learners first reported the incidents to their parents. Lungawo’s mother complained to him, he then prepared a report for the circuit manager. On charge 3, the charge was read on record. He mentioned that the school management team [SMT] noticed that the learners were not taught by the Applicant. He did the rounds at school and noticed that the Applicant was not in class. They relieved the Applicant from teaching creative arts. With economics grade 10, the instruction was not carried out. The Applicant sent Ms Luke a message on a weekend, that he would focus on accounting. Ms Luke was very sympathetic with the Applicant. The Applicant after some time as per the agreement between him and the HOD decided to teach Economics grade 11.
10. Ms Thabisa Sixubana (“Sixubana”) testified as follows. She was the deputy principal at Noncedo combined school. She also testified about her duties. The Applicant taught the following subjects: accounting grade 10-12, EMS grade 8-9, Economics grade 10 in 2022. She also mentioned that it was discussed with the HOD, she was not sure. In the same year between 2021/2022 the Applicant approached her and informed her that he had a lot of work, he will not be able to teach economics. She informed him that it was going to be discussed in the SMT meeting. She reported the issue to the school principal and HOD, however, she had no recollection of the matter being discussed by the SMT. The Applicant approached her again before the end of the year and informed her that he will continue to teach economics. The Applicant taught economics up until grade 11. Bundle A pg 20 [charge no 1] was read on record. She mentioned that it was not reported to her. She never witnessed the learners with marks. The Applicant from time to time had clashes with the learners and punished them. They advised the Applicant to control his anger. They told him that they also steal? learners by pinching them, but they were not harsh.
11. Ms Noxolo Luke [“Luke”] testified as follows: She was the HOD for commerce subjects and languages. The Applicant was known to her. It was her evidence that there were discussions between her and the Applicant. She requested the Applicant to assist with economics grade 10. The Applicant taught economics grade 10 in 2023. They agreed that the Applicant will continue with the students up until grade 12. She will teach economics grade 10, when the Applicant was busy with grade 11 economics. In relation to charge 3, she mentioned that she received a whatsup text from the Applicant, that he will focus on accounting, the accounting students did not perform well, He won’t be assisting with economics anymore. The textbooks were brought by the Applicant the following day. She reported the matter to the school principal and deputy principal. All this took place in a space of two – three weeks. The Applicant had a change of heart and taught economics, he took the textbooks. Bundle A pg 76 was read on record. The mother of the learner was furious, she had no recollection how the matter was reported, not sure whether the Applicant assaulted the child and took her to class. The Applicant apologized about the incident. She also testified that the Applicant may return to the department of education but not at the school. The learners who reported the incident have been victimised. The parents were not happy.

Applicant’s case

12. The Applicant testified and called no witness in support of his case. He stated that he was employed by the Respondent holding a position of an educator at Noncedo Combined school. He also testified about his qualifications, from Fort Hare University. At Noncedo Combined school, he was appointed for accounting, he commenced on 01 July 2019. He taught accounting and was also introduced [Economic Management Science] EMS. On his first day at school, he completed the paperwork with the school principal, they submitted the documents at Rubusana- Mdantsana. On his 2nd day he was introduced to the learners and the educators. The actual teaching commenced on the 3rd day. He was made aware of the following: not to shout at the learners, not to insult, not to administer corporal punishment. Bundle A pg 20, he mentioned that he knew the learners, they were in grade 8 & 9. He taught EMS in grade 8 & 9. He was not aware of the incidents mentioned on pg 20. He first became aware of the incidents on the day of the disciplinary hearing at Rubusane. Bundle A pg 21, it was signed by him. He was informed by Mr Mzila that he administered corporal punishment. It was for the 1st time he was informed of such. He never administered corporal punishment on the learners.
13. In relation to the disciplinary hearing scheduled for 04/08/2023 he mentioned that it was postponed. Pages 29,30 were read on record. On 06/10/2023 there was outstanding information that the department promised to furnish him. No new date was given for the next sitting. Pages 25, 35 were read on record. It was his evidence that he never received the amended charge sheet. Pages 31,32,33 and 55 were read on record. On 23 November 2023 he did not attend the disciplinary hearing at Rubusane. He never received any invitation to the hearing. Charge no 3 was read on record, he also mentioned that his immediate supervisor was Ms Luke [HOD]. It was his evidence that he never received any instruction from the school principal in relation to charge no 3. He was never given economics to teach grade 10 at Noncedo school. There was an agreement between him and Ms Luke, he assisted Ms Luke. He had 150 learners for accounting. He assisted with certain topics on economics. He helped once a week. He assisted for a period of seven months. The period he stopped assisting with economics was when he needed more time with the accounting students. He communicated his decision to stop assisting with economics with Ms Luke, he was requested to reduce in writing, and he complied. Page 39 was read on record. Page 86 read on record [ Noncedo subject allocation 2023, subjects for Ms Luke were: Business studies, grade 10,11& 12. Economics grade 10, 11 & 12. He denied strangling a grade 6 learner. It was his evidence that he never assaulted grade 8/9 learners and no parents complained about him. It was his evidence that it was impossible to administer corporal punishment to high number of learners. He also mentioned that he never taught creative arts. He also mentioned that he never had problems with the subject advisors, old and new. The relief sought was reinstatement.

ANALYSIS OF EVIDENCE AND ARGUMENT

The Respondent is directed and ordered to pay the Applicant an amount of R225 584-00. [Two hundred and twenty-five thousand, five hundred and eighty-four rands only.] within 21 days of the date this award has been served on it. . This must be paid into the Applicants bank account as per the Respondents records.

Signature :
Commissioner : Siziwe Gcay

In this case, the existence of the dismissal is common cause, therefore the Respondent must prove that the dismissal of the Applicant was fair. It is trite that the employer bears an onus to justify the fairness of the dismissal once the existence thereof has been proven by the employee. In terms of Section 188 of the LRA the employer must prove that the dismissal was for a fair reason based on the employee’s conduct, capacity or employer’s operational requirements and that it was executed through a fair procedure.

Procedural Fairness: At the commencement of the proceedings, Applicant representative placed on record that the procedural fairness was challenged.

In determining the fairness of dismissal, the LRA requires me to consider the Code of Good Practice: Dismissal Schedule 8, item 4 deals with Fair Procedure. And also to take into consideration the principle laid down in Avril Elizabeth Home for the Mentally Handicapped v CCMA and others (2006) 27 ILJ 1644 (LC);(2006) 9 BLLR 833 (LC). It was held that the employer was merely required to conduct the investigation, give an employee or his representative an opportunity to respond to allegations after a reasonable period and thereafter to take a decision and give the employee notice thereof.

There was no evidence adduced by the Respondent through its witnesses, in that in terminating the services of the Applicant they complied with item 4 of schedule 8 to the LRA [The Code of Good Practice: Dismissal]. The three witnesses called by the Respondent testified in relation to substantive fairness and not procedural fairness. The version of the Applicant was left unchallenged. It was the Applicant’s evidence that after the postponement of 06/10/2023 he was never invited again to a disciplinary hearing. He was never afforded an opportunity to properly present his case. He was shocked to receive a termination letter. He was never afforded an opportunity to present mitigating factors to the chairperson who presided over the disciplinary hearing. On 19 February 2025 Mr Tsheko applied for an adjournment to secure the attendance of Mr Jevu. He promised that Mr Jevu would be available on 20 February 2025. I was also informed that Mr Jevu represented the Respondent during the internal disciplinary hearing. On 20 February 2025, two witnesses from the Respondent testified, it was Sixubana and Luke. After Luke’s evidence the Respondents case was closed. Mr Jevu was not called. The chairperson and Mr Jevu were the only people who could have shared some light on the procedural issues. Mr Jevu saw no need to assist Mr Tsheko despite being the person who represented the department during the internal disciplinary hearing. On all dates this matter set, at no stage was I informed that Mr Jevu was available. The only person who availed himself more than once was Mr Mzila. What is clear in this case is that the Applicant was never afforded an opportunity to respond to the allegations levelled against him. There was no documentary evidence presented by the Respondent to refute the claims of the Applicant. 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 inference 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.” I am in no position to conclude that the dismissal of the Applicant was procedurally fair without evidence to support such finding. . The Respondent dismally failed to present evidence on procedural fairness. Based on what I have highlighted above, I therefore find that the dismissal of the Applicant was procedurally unfair.

Substantive Fairness: In determining the substantive fairness of the dismissal, the law requires me to consider the Code of Good Conduct and the CCMA Guidelines on Misconduct Dismissals. Further, in terms of the Constitutional Court judgment in Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC), it was held that the Commissioner must consider all relevant circumstances when considering whether dismissal was an appropriate sanction in a particular case of proven misconduct. This includes the importance of the rule that has been breached, the reason the employer imposed a sanction of dismissal, basis of the employee’s challenge of the dismissal. The other factors such as harm caused by the employee’s conduct, whether the additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record..

It is worth mentioning that an arbitration is a new hearing, which means that the evidence concerning the reasons for the dismissal is heard afresh before the arbitrator. The arbitrator must determine whether the dismissal is fair in the light of the evidence admitted at the arbitration.” [CCMA GUIDELINES ON MISCONDUCT AND ARBITRATION-17 NATURE OF ARBITRATION].

The Respondent, in trying to prove its case led evidence of three witnesses. Their evidence has been summarized above, and it will not be repeated. I will highlight few aspects of their evidence. As mentioned above the Applicant was dismissed for acts of misconduct.

In relation to charge no1, there were no witnesses called by the Respondent. The learners and the parents of the learners were not available. At no stage was I informed that they were in the hearing rooms. I must mention that Mr Tsheko experienced difficulties with the cooperation of witnesses including his own colleagues. In respect of the three educators, I will start with the evidence of Luke. The incident was not reported to her, and she did not witness the hands of the learners. She heard about the incident from the school principal. Sixubane also testified that the incident was not reported to her. She never witnessed any marks on the learners. Mzila mentioned that the incidents were reported to him the following day. He did not witness any cuts on the learner, only marks. It was not possible that there was a cut. I find the evidence of the witnesses called by the Respondent not credible for the reasons highlighted above. The quality of the evidence presented by these three witnesses was not satisfactory.

In relation to charge no 2 , there were no witnesses called by the Respondent. In relation to charge no 3, all three witnesses testified about charge no 3. I will start with the evidence of Mzila. On charge no 3, it was very difficult to follow the evidence of Mzila, most of his responses on cross-examination by Mr Mhlontlo were “ I cannot remember very well. It could have been a mistake. It could have been the Applicant or Ms Luke. I am not certain.” He also did not comment on the version of the Applicant that “ Applicant did not teach economics because he was not allocated economics”. My understanding was that he was directly involved on charge no 3 as the person who gave the instruction to the Applicant. He could not even tell whether the Applicant taught economics in grade 10 in the month of April / May 2023.On bundle A pg 21, it is alleged “You on or about May 2023 failed to carry out a lawful instruction by the principal of Noncedo High school refusing to teach Grade 10 economics as instructed.” Very interesting the school principal [Mzila] did not know whether Applicant taught economics grade 10 in April or May 2023. How was charge no 3 formulated if Mzila cannot provide any clarity. I have painted enough picture of the witness Mzila was on charge no 3. He was not a good witness at all. Based on the answers he provided on cross-examination, I am not convinced on a balance of probabilities that Mzila gave the Applicant an instruction to teach economics. On re-examination he provided similar answers, “ my memory is not so good. I am not sure. I cannot remember very well.” I was not impressed with the testimony of Mzila, for the reasons stated above.

During cross-examintion Sixubana mentioned that the Applicant was never instructed by the school principal to teach economics. It was an internal arrangement. For the period January – March 2023 she did not know who taught economics. In terms of subject allocation, economics was allocated to Ms Luke. Negotiations between the Applicant and Ms Luke were in the middle of the year. She also stated that she relied on wrong, old policies. She took over from the retired deputy principal. Pages 78,79 & 80 were approved but it was an error that they were without signatures and the official school stamp.

Luke stated that pages 78,79,80 on bundle A were misprints and a mistake. She never taught economics. It was the Applicant who taught economics. She only witnessed the mistake on 20 February 2025.

The candor and demeanor of these three witnesses were not good. They displayed bias in favour of the Respondent. They had no intentions of assisting the commissioner in arriving at a fair decision. They expected me to ignore the evidence on pages 78,79 and 80 and to believe that it was a mistake. Those three documents were the property of the school. The mistake was madeby the SMT and clerk of the school. They expect me to believe that. The circuit managersand subject advisors who visited the school also did not realise that there was a mistake on these documents. I find it to be impossible. Luke was hiding the truth. I observed her when she was testifying. There was no mistake at all. All these witnesses proved themselves not to be reliable and credible witnesses. Sixubana stated that the Applicant was never instructed to teach economics grade 10 but it was an internal arrangement between the two educators. The question is when did the school principal instruct the Applicant to teach grade 10 economics? Why did Luke’s name appear on the school timetable on pages 78, 79 & 80 for economics whilst she was not teaching economics? Why was economics allocated to her not the Applicant? The name of the Applicant only appeared once for economics. What is probable in the circumstances? Ms Luke was the economics teacher.

The Applicant on the other side was also not a very good witness. He also struggled to provide clear answers on cross-examination by Mr Tsheko particularly on the events of 06/10/2023. I was not impressed with the quality of his responses.

When faced with two conflicting versions, I am called upon to determine whether the party burdened with the onus of proof has succeeded in discharging it. In dismissal matters, it is trite law that the employer bears the overall onus of proving that the dismissal was procedural and substantively fair. This principle was adopted in NUMSA and another v Tokiso Dispute Settlement and others (JR 2049/09) [2014] ZALCJHB 237

I am enjoined to consider the evidence in its totality. The Respondent bears the onus to prove its case on the balance of probabilities. All the witnesses of the Respondent did not assist the Respondent in proving its case that the services of the Applicant were terminated in a fair manner, for the reasons that I have already highlighted above.

In considering the totality of circumstances, the Respondent failed to discharge the onus placed on it in terms of section 192[2] of the LRA for the reasons I have highlighted above, to show that the dismissal of the Applicant was substantively fair.

I find on a balance of probabilities that the dismissal of the Applicant was procedurally and substantially unfair.

The Applicant sought reinstatement. I cannot find any compelling reasons why this should not be granted, particularly as this is the primary remedy envisaged in terms of section 193(1) of the LRA. I am ordering retrospective reinstatement with backpay. The Applicant is reinstated effective from the date of dismissal on terms and conditions no less favourable to which he enjoyed prior dismissal. It is common cause at the time of his dismissal he earned R28 198.00 [ Bundle A pg 14]. The Applicant has been out of employment since July 2024. His matter was concluded on 25 March 2025. Back pay of 8 months is just and equitable considering the totality of evidence and the period the Applicant has been out of employment. The total amount of back pay is therefore R225 584-00 [R28 198.00 X 8 = R225 584-00.] [Two hundred and twenty-five thousand, five hundred and eighty-four rands only.]

.
AWARD

The dismissal of the Applicant, Mfazwe Ntozintle was procedurally and substantively unfair.

The Respondent, the Department of Education Eastern Cape is ordered to reinstate the Applicant on conditions of employment not less favourable to that which he enjoyed prior to his dismissal. The reinstatement is effective from the date of dismissal, i.e. 18 July 2024, and the Applicant must return to work on 05 May 2025.