ARBITRATION AWARD

Arbitrator: Macjon Maarman
Case number: ELRC1228-24/25 WC
Date of Award: 15 August 2025

SADTU on behalf of Juanine Macdonald-Jacobs Applicant
and
Department of Education, Western Cape Respondent

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration under ELRC1228-24/ 25 WC concluded on 30 July 2025 at the offices of the respondent in George. The applicant, Ms. Juanine Macdonald-Jacobs was present and represented by Mr. Simphiwe Mbola, an official from SADTU. The respondent, Department of Education, Western Cape, was present and represented by Mr. Roy Jansen, its Senior Employee Relations officer. The Intermediary in this case was Mr. Daniel Kova. The proceedings were manually and digitally recorded. Parties submitted bundles of documents which were accepted for what it purported to be. Parties further submitted closing arguments on the agreed date.

ISSUE TO BE DECIDED

2. I am required to determine whether the respondent committed an unfair labour practice against the applicant by issuing her with a final written warning and deducting R32 937, 00 in total from her wages. The applicant seeks compensation and the removal of the final written warning from her record.

BACKGROUND:

3. The applicant was charged and found guilty of “Misconduct in terms of section 18 (1) (q) of the Employment of Educators Act 76 of 1988 in that during the 1st term of 2024 whilst on duty you conducted yourself in an improper, disgraceful and unacceptable manner towards Learner A* a grade 7 learner associated with Formosa Primary school, when you uttered more or less the following to him “teef” and or “your mother’s poes” and or “ek wil sy bek stukkend gooi” and or “naaier”. Charge 2- it is alleged that you assaulted Learner A associated with Formosa Primary school by throwing him with a duster on his forehead”.
4. Thirty-two thousand nine hundred and thirty-seven rands was deducted over four months from the wages of the applicant and the applicant was issued with a final written warning of six months which lapsed at the end of June 2025. The applicant alleges both procedural and substantive unfairness. Relating to procedural unfairness the applicant is of the view that the presiding officer erred in his powers when he allowed the respondent to withdraw a section of the charge and relating to substantive unfairness the applicant is of the view that she is not guilty of the alleged misconduct.
5. A criminal case was also opened against the applicant for the assault of Learner A and parties had different views on how it ended.
6. The basis for the sanction in this case was the alleged “assault” by the applicant onto a learner. The parties made use of learners as witnesses the youngest being 13 years old. There were no In Camera facilities set up by the parties and only one room was provided by the venue. I asked the applicant to excuse the room when the young learners testified. There were no objections from any of the parties. This was to ensure maximum comfortability of the very young learners considering the sensitivity of this case and their young age. Arbitration proceedings are not criminal proceedings. The interest of the child is of paramount at all material times. The applicant was not prejudiced as her representative lead their young witnesses in examination in chief and was afforded the opportunity to do a caucus with the applicant before proceeding with cross examination of the young witnesses brought by the respondent. The respondent was also not prejudiced (by the absence of the applicant when the young witnesses testified) as they conducted full cross examinations of the young witnesses of the applicant and amply lead their learner witnesses in examination in chief.

SURVEY OF EVIDENCE AND ARGUMENT

7. This award does not contain everything that was said that the arbitration or in the closing arguments of the parties. It only records the evidence and arguments material to the subject matter and the finalization of the dispute. This is in line with section 18.6.1 of the ELRC constitution as well as section 138 (7) of the LRA. The applicant’s case
8. Ms. Juanine Macdonald-Jacobs (herein after “the applicant”) testified that she has been an educator for 30 years and over that period has never been in a disciplinary hearing. She said that as a teacher she tries to use positive words and its normally the learners that use swear words.
9. The applicant said that she never uttered the swear words to any learner and she also pleaded not guilty to the charges in the disciplinary hearing. She said that she also never threw a duster towards/ at Learner A.
10. The applicant said that the first time when she heard about the alleged misconduct was on the morning of 27 February 2024 when the police came to her and took her into custody. She saw the allegation on the police affidavit. She said that on 22 February 2024 she was conducting Art lessons, no space for her to move close to the blackboard and she does not know which learner sat where. She said that Learner A did not do his homework and laughed the whole time [in class] to which she told him that if he does not improve his manners then she will have to call in his parents. His homework and maths was not completed and he never engages on class.
11. The applicant continued to testify and said that she wanted to shield her children by not calling them as witnesses in the disciplinary hearing and that Mr. Jansen denied her the chance to have witnesses in the disciplinary hearing.
12. Under cross examination the applicant said that the learner is lying as a result of the events of the 20th of February 2024 where she told him that she’ll call in his parents if his behavior did not improve. She said that she does have a word being “fok” but she never uses it for the learners. She said that she was upset that Learner A was laughing whilst she needed to give lessons and during the periods of 20 to 22 February 2024 she did not swear.
13. The applicant further said that the chairperson did not grant Mr. Jansen permission to amend charge two. She said that it’s her nature to get upset and that she does not know why the allegation arose but it could be because of the events of the 20th of February.
14. Learner TM (herein after “TM”) was the next witness for the applicant. She said that they did receive maths from the applicant on the 20th of February 2024 and Creative Arts; Ms. Beausie was also in the classroom and she is not aware that the applicant threw Learner A with a duster.
15. Under cross examination TM said that the applicant did not tell her what she must come and say here at the arbitration. She said that the alleged Learner A never listened in class nor did his homework. TM said that she can remember the applicant getting upset on the 20th of February 2025 but she did not scold him and simply told him that she will call his parents.
16. Learner KD (herein after “KD”) was the last witness for the respondent. She said that it’s not the truth that the applicant threw another learner with a duster nor was the duster even close to the applicant. She said that the applicant never scolded on the day in question and always kind to their class.
17. Under cross examination KD said that Learner A was rude on the 20th and did not listen and insisted that he was thrown with a duster by the applicant. KD got emotional, was consoled by the intermediary and said that she was unable to continue with testifying.
18. The trade union, in their closing arguments, said that the initial presiding officer erred by finding the educator guilty based on speculation rather than concrete evidence; ignoring the factual evidence presented during the hearing, substituting speculation for proof in reaching his determination. They said that the presiding officer operated under a troubling mandate system that predetermined financial penalties. This system suggests predetermined outcomes rather than fair adjudication. The trade union said that the respondent failed to consider the applicant’s mitigating factors and breached natural justice by the presiding officer making findings without proper evidence, punishing the exercise of legitimate rights and allowing speculation to substitute proof. The aforementioned, according to the trade union demonstrates bias against the educator from the outset, predetermined outcomes regardless of evidence and complete disregard for the principles of fair adjudication.

The respondent’s case

19. Mr. Collin Wildeman (herein after “Mr. Wildeman”) was the first witness for the respondent. He said that he is the principal of Formosa Primary School where the applicant also educates. Mr. Wildeman said that the parents of Learner A came to school saying that their child came home traumatized saying that he was thrown with a duster by the applicant. He then explained the process to be followed by him and also advised the parents that they may open a criminal case if they so wish
20. Mr. Wildeman continued to testify and said that in the past other parents came to school alleging that their children were evicted out of class by the applicant and when he queried from the applicant as to her reasons for doing so she said that the learners were unruly. He said that when he greets the applicant she does not greet back and some of the school management team members also complain many times that they experience problems with the applicant.
21. Under cross examination Mr. Wildeman said that when it comes to her work the applicant delivers but she has personal attitude problems. He said that the circuit manager also informed him of her being on her cell-phone and distractive to other teachers who were in the meeting when he was doing a presentation which the circuit manager thought was disrespectful to which he (the principal) replied that that is what she normally does.
22. Mr. Leonard Jonas (herein after “Mr. Jonas”) testified that is the parent of Learner A who came home saying that the applicant swore at him and threw him with a duster. He said that they also opened a criminal case which was settled out of court.
23. Under cross examination Mr. Jonas said that his child did not have any marks in the face but had to undergo counselling due to the criminal court attendances.
24. Learner A testified next and said that he is still 13 years old, that on a Thursday in February 2025 the applicant threw him with a board duster and that the applicant has always had a problem with him. He said that the applicant told him “hou jou bek” (shut your mouth) and threw him with a duster after another female teacher who came to their class left.
25. Learner A continued to testify and said that the applicant told the learner, who sat in front of him, to bend which she did but the duster slightly missed him. He said that the applicant swore at him saying “jou ma se p##s” (your mother’s vagina) and said that her husband must teach her how to throw rocks so she can throw mouth broken. He further said that the applicant is not speaking the truth when she said that she does not swear in class and the proof of is that they opened a criminal case against her.
26. Under cross examination Learner A said that some teachers like him and other not but the applicant does not like him and he does not know the reason why she does not like him. He first said that as far as he can remember it was the first time that his parents came to the school for something connected to him and then he said that his parents were called in when there was an issue with another teacher (Teacher Aweries). Learner A lastly said that he does not know what to say when the contradiction in his testimony was pointed out to him.
27. Learner AK (herein after “AK”) was the last witness for the respondent. She said that she is 14 years old and the applicant would sometimes swear in class. She said that Learner is quiet on most days and the incident (swearing and duster thrown) arose because Learner A turned around.
28. AK continued to testify and said that the applicant did say the words that was in the charge sheet to Learner A and also said that she will sit with her huge thighs (legs) on top of Learner A. She said that she was in the class when the applicant swore at Learner A and threw him with the duster
29. Under cross examination AK said that she sat directly opposite to Learner A and the applicant always picked on him. She lastly said that the other learner did bend before the applicant threw the board duster as he was instructed to bend.
30. The respondent, in their closing arguments, said that Mrs. McDonald testified that she was found not guilty in the court proceedings and when Mr. Jonas came to testify he denied that she was found not guilty but that she was referred to anger management which was not challenged by SADTU; she testified that she was upset with Learner A as he did not behave himself when another teacher was visiting her class meaning that it is very clear that Mrs. McDonald is a liar and that she her and her witnesses weren’t credible witnesses at all. The respondent further said that Mrs. McDonald clearly overstepped the boundaries, assaulting the learner and swearing at the learner, instead of protecting the learner as the daytime guardian.

ANALYIS OF ARGUMENT:

31. Section 186 (2) (a) of the LRA states that “Unfair Labour Practice means any unfair act or omission that arises between an employer and employee involving- the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee”.
32. In this case both procedural and substantive fairness was in dispute.

Procedural fairness

33. The applicants’ claim relating to procedural fairness was the attempt by the respondent in the initial disciplinary hearing to “withdraw” segments of the charge. In the closing arguments did the issue of the alleged “pre-disciplinary hearing” conduct arising. In particular proposals to “avoid” the disciplinary hearing from proceeding.
34. The applicant did not call or subpoena the disciplinary hearing chairperson to these proceedings to put versions or questions to them. Closing arguments are not evidence. In this case the issue of the disciplinary hearing charges was “resolved” by that disciplinary hearing chairperson before that hearing started. The applicant led evidence, was given a chance to put versions to the witnesses of the respondent, received the finding, gave mitigating factors, received the outcome and even submitted an appeal. It was for the applicant to prove that her “issues” with the initial disciplinary hearing was not “attended to” at the appeal stage. She did not do that. There was thus no procedural defect in arriving at the sanction that was imposed by the applicant.

Substantive fairness

35. In this case there was a wholesale denial by the applicant that she committed the alleged misconduct/ punishment towards Learner A. The applicant conceded that she was upset at Learner A for making a noise when the other teacher came to her class. Learner TM (who testified in aid of the applicant’s case) said that she could remember that the applicant got angry. Learned KD (who also testified in aid of the applicant’s) got emotional and did not complete her examination when the respondent’s representative put versions to her.
36. The learner witnesses of the respondent were more consistent in their testimony that the applicant threw Learner A with a duster. The principal of the school who testified for the respondent, said that in the past other parents came to school to report that the applicant evicted their children from class which is prohibited. My viewpoint about what happened on that day is that the applicant became angry with Learner A when he spoke [loudly and distractingly] when another teacher visited the class of the applicant.
37. It is for all the aforementioned reasons that I find that it is more probable that the applicant did do that what she was charged with and I too find her guilty of the charges that was levelled against her.
38. Having found the applicant guilty of the charges that was levelled against her I am of the opinion that the sanction that was issued was the appropriate one on the circumstances. The actions which the applicant did was outlawed for a reason. The respondent thus did not commit an unfair labour practice against the applicant.

AWARD

39. The respondent, Department of Education, Western Cape, did Not commit an Unfair Labour Practice against the applicant, Mrs. Juanine McDonald-Jacobs. The applicant is not entitled to any relief.

Panelist: Macjon Maarman
ELRC1228-24/ 25 WC