Mr. SH THOKA “the Applicant”

and

DEPARTMENT OF EDUCATION – GAUTENG PROVINCE “1ST Respondent”

And

DEPARTMENT OF HIGHER EDUCATION AND TRAINING “2ND Respondent”

ARBITRATION AWARD

Case Number: PSES616-12/13GP
Last date of arbitration: 21 April 2017
Last of written closing arguments received on: 16 May 2017
Date of award: 02 June 2017 (extension granted)

COEN HAVENGA
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
E-mail: gen.sec@elrc.co.za
Details of hearing and representation
1. The arbitration hearing started on 22 November 2013, and the hearing continued over several days for a protracted period of time, to eventually be concluded on 21 April 2017 at the offices of the 1st Respondent in Wonderboom. The parties requested opportunity to submit written closing arguments, the last of which was received on 16 May 2017.

2. The submission of the arguments and the conclusion of the arbitration in general, were delayed due to the 2nd Respondent being joined as a party at a late stage of the arbitration hearing. A joinder ruling was issued on 28 November 2016, after the Adult Education and Training Centre where the Applicant is employed as principal, had been transferred from the jurisdiction of the Department of Education, Gauteng Province, to the jurisdiction of the Department of Higher Education and Training. The latter then became the new employer of the Applicant.

3. The matter was also delayed for a period of time to deal with a dispute regarding the interpretation and translation of a specific word which came about on 5 March 2014. Thereafter the initial representative of the 1st Respondent resigned, which led to further delay of the matter. The late joinder of the 2nd Respondent after the transfer of the Applicant to the 2nd Respondent, further delayed the finalisation of the matter.

4. The Applicant is Mr Thoka, SH, represented by Mr Mphahlele, M, a PEU official. The 1ST Respondent is the Gauteng Department of Education, represented by Ms Zwane, G. The 2nd Respondent is Department of Higher Education and Training, represented by Mr Kwakwa, J.

Issue to be decided

5. The parties agreed that the arbitrator is to determine whether the Respondents committed an unfair labour practice related to disciplinary action short of dismissal as provided for in section 186(2)(b) of the Labour Relations Act 66 of 1995 (“the LRA”), and if so, what relief is to be awarded.

Background to the dispute

6. The Applicant, being the Principal of Moepathutse ABET Centre, was charged with and found guilty of contravening section 18(1)(r) of the Employment of Educators Act 76 of 1998, in that he assaulted a fellow employee, Mr Sepeng, H (“Sepeng”). He was sanctioned with a three-month unpaid suspension.

7. The Applicant denies the misconduct, and alleges that he did not assault Sepeng. The outcome sought by the Applicant is a finding that he did not commit any misconduct, that the sanction be removed from his file, and the reimbursement of the unpaid salary for the period of three months.

8. The Applicant does not dispute the procedural fairness of the disciplinary action taken against him.

9. The Respondents allege that the Applicant did commit the misconduct he was found guilty of, and that the sanction that was imposed is appropriate.

Summary of evidence

Applicant’s case

10. Samuel Harry Thoka (“Thoka”) testified under oath that he has been the principal of Moepathutse ABET Centre since 2008. He knows Sepeng, who is a general worker at the centre. On 25 January 2011 Thoka arrived at the centre at 7h50. He was with a colleague, Mr Bhoso (“Bhoso”), his assistant. Bhoso informed him that he had been verbally assaulted by Sepeng, who called him a foreigner, and threatened to fix him and his family.

11. Thoka wanted to address the issue and sent a learner to call Sepeng. The average age of the learners is 25. The learner reported back that he called Sepeng, and that Sepeng said he would come. Sepeng did not come, and Thoka went to him. He found him sweeping on the veranda. Thoka asked him for the broom, and Sepeng gave it to him. He asked Sepeng to follow him to the administration office, which he did. They went to a room in the administration block. It was about 07h53.

12. Thoka placed the broom against wall, and asked Sepeng what he meant by saying he will fix Bhoso. Bhoso was present in the room. Sepeng did not answer. Thoka repeated the question many times, but Sepeng did not respond. Bhoso stood up and took out his ID and passport. He told Sepeng that he is a foreigner, but that he was in the country legally.

13. The administration block is used by Thoka, Bhoso, the late Mr Mkhize (“Mkhize”) and two administration clerks. The clerks were busy with registration duties, and were not there. They were three class rooms away. Bhoso requested Sepeng to sit down so that they could discuss their differences. Mabato came into the room, as she was going to collect something from the strong room. At that stage Bhoso was trying to make Sepeng sit down. Sepeng resisted. Thoka kept on repeating the question as to what he meant by fixing Bhoso. Sepeng did not respond to it.

14. Mkhize came in and found Bhoso and Sepeng talking very loudly. He tried to calm them down. Thoka was only watching them, and also asked both to sit down and talk. Thoka was standing as well. He then left the room, and did not return there. The matter was not resolved when he left. When Thoka returned from his office later at about 08h15, he found that Sepeng has left. There were learners around the classrooms, and teachers in the staff room. The bell has not yet rung.

15. Thoka did not notice any injuries on Sepeng when he called him to the room earlier. He just looked unhappy. He did not see any of the injuries alleged in the charge sheet. There was a bad relationship between Bhoso and Sepeng. Nothing came of the criminal charges that were laid against Thoka. He did not encounter Sepeng again during that day. Sepeng stays on the centre premises. Thoka was informed that Sepeng went to his room after he left him with Bhoso.

16. Thoka did not assault Sepeng. When Thoka went to his office, he left Sepeng him with Bhoso in the room.

17. Under cross-examination, Thoka testified that he does not know Frans Mashiane (“Mashiane”), and that he did not push Sepeng against the wall. Nobody pushed Sepeng against the wall while Thoka was present. They insisted that Sepeng must sit down, so that they all could sit and talk. It is part of their culture as men to sit and talk.

18. When Thoka left the room Bhoso was still pleading with Sepeng to sit down. It was appropriate for him to leave them there. He went to his office to collect a logbook. It took him about 4 minutes. He wanted to enter the incident of Sepeng threatening Bhoso into the logbook. When he returned, Sepeng had left. Mabato confirmed to him that Sepeng had threatened Bhoso. Bhoso informed Thoka that Sepeng went to his room at about 08h15.

19. Thoka followed Sepeng to his room to have him sign the logbook, but Sepeng refused to sign. Thoka then returned to his office. When made aware, that he earlier testified that he never saw Sepeng again that day after he left him with Bhoso, Thoka stated that it was only an encounter in his room.

20. The door of the room where Sepeng and Bhoso were, was always open. He will dispute evidence that he tried to push Sepeng into the strong room.

21. Note: The proceedings adjourned to the premises of the centre to conduct an inspection in loco. A sketch plan drawn up by the commissioner was confirmed by all the parties, and forms part of the record.

22. Under further cross-examination Thoka testified that A9 is the outcome of the South African Council for Educators (“SACE”) disciplinary case against him. He was not subjected to hearing at SACE. He was called there, but was never called in.

23. The storeroom was not used by the clerks at that time for registration purposes. There was however papers stored there, which could be the reason why Mabato went there.

24. Mabato Kodisang (“Mabato”) testified under oath that she is an administrative assistant at the centre. She works in the administrative assistants’ office. It is next to the Principal’s office. On the day of the incident she was busy with registration and worked in that office. She went to the administration office to go to the strong room. She was looking for the admission file of the previous year which was in the strong room. The door of the office was open. She found Thoka, Bhoso and Sepeng there.

25. She heard Sepeng shouting. They were standing there. They were trying to calm him down. She heard Sepeng swearing at Bhoso, further stating that he is a foreigner, that Bhoso cannot do anything to him, and that he will fix him. She then went out of the office after she got the file from the strong room. Both clerks have keys for the strong room. She opened the strong room to get the file. When she left they were still standing, and Sepeng was swearing at Bhoso. She was there for about 7 to 8 minutes, while she searched for the file.

26. Under cross-examination Mabato testified that Thoka and Bhoso were trying to calm Sepeng down by asking him to lower his voice. Thoka said they did not want the learners to hear there was a fight. She only went into the office once. The incident started at 07h30 and ended at 09h00. When she arrived she saw there was a fight, and it went on while she was doing registrations. It started outside between Bhoso and Sepeng, and then Thoka arrived. Sepeng and Bhoso were in the garden where Sepeng worked, next to the office.

27. Thoka asked Sepeng what was going on, and Sepeng told him to ask the foreigner he hired. Thoka then asked him to go to the office. Sepeng refused and said he was being forced to go there. Sepeng was with his tools in the garden when Thoka went to him. She did not see everything that happened in the office. She was only in there for 7 to 8 minutes. She does not know how long they stayed there.

28. Wedlock Bhoso (“Bhoso”) testified under oath that he is an educator at the centre, and one of the supervisors. When he arrived at the centre on 25 January 2011, he stood outside his office, as he did not have the keys. Sepeng came and started to verbally assault him, by saying he was a foreigner. He said Bhoso thought it was his mother country, that he will fix him, that he knew where it hurts, that he knew where his family stayed and that he would deal with them. Bhoso kept quiet. Mabato also told Bhoso to keep quiet. She opened the office, and he went in and started to work.

29. Thoka came in and asked him what was wrong. He told Thoka about the verbal attack by Sepeng. Sepeng was mopping the floor on the veranda at the far end of the block of classrooms. Thoka went to talk to him, and came back alone. Thoka sent a learner to call Sepeng, and he eventually came. He entered the office where Bhoso was sitting. Thoka asked Sepeng to take a seat, but he refused. They continued to pursue them, and he eventually sat down.

30. Thoka asked Sepeng what he meant when he said that he would fix Bhoso. Bhoso took out his passport with his permit to show Sepeng that he was in the country legally. Sepeng did not answer. Thoka went out and Mkhize came in. Mkhize said he should not argue with Sepeng, they all knew his temperament. When Thoka came back, he had a logbook with him. He said he wanted to log the incident. Mkhize then asked Sepeng to leave the room, as they could not talk to him. Sepeng left, and he saw him again at the break, where he talked to his friends. He then disappeared for 4 to 5 days. They then received the allegations of assaulting him.

31. The Chairperson of the SGB is a close friend of Sepeng. At first it was alleged that Bhoso assaulted Sepeng, then it was changed to both him and Thoka. Sepeng was selling his goods to the learners later, and there was nothing wrong with him. They did not assault Sepeng. He had problems with foreigners. They did not argue in the office, and he only showed him his passport.

32. Under cross-examination Bhoso testified that he cannot remember Mabato coming into the office. She witnessed the earlier verbal attack on him. It happened in front of the office where he worked. Thoka asked Sepeng to sit down. Bhoso never argued with him, and he only showed him his passport. Sepeng eventually came into the office alone, while Bhoso was working at his table, sitting on a chair. He never assaulted Sepeng.

Respondents’ case

33. The Respondent submitted the documents contained in Bundle A, page 1 to 9.

34. Frans Mashiane (“Mashiane”) testified under oath that he knows Thoka as the principal of the centre, from what his friends told him. Sepeng is part of group which patrols the community, including the school.

35. Mashiane was watching through the window, and saw Thoka twisting Sepeng’s arm, and saw Thoka hitting Sepeng with his elbow. He could not clearly see where he hit him He looked through the window in the office of the clerk. Mashiane did not attend the centre, but was with Ruben and others who attended the centre. He went there to enquire about enrolling at the centre. Thoka, Bhoso and Sepeng were inside the office. There is a tap where they wanted to drink water, and that is where they saw the incident from.

36. Thoka hit Sepeng with the elbow and was twisting his arm, and Bhoso manhandled Sepeng by pushing his head against the wall. Thoka came to the window and told them to go away.

37. Under cross-examination Mashiane testified that they did not manhandle Sepeng simultaneously. He is also one of the patrollers. He is not close to Sepeng. The tap is behind the offices, passed the office of the principal. They left after witnessing the incident. He did not see the 4th person in the room. He left when Thoka chased them away. He did not see the clerk entering. He did not see Sepeng again on that day. He cannot remember, when he saw him again. He told one of the patrollers that he witnessed the incident, and then they went to Sepeng.

38. Ruben Maditsi (“Maditsi”) testified under oath that he went to the centre with Mashiane to enquire about registration. They went to the tap behind the office to drink water. He looked through the window and saw Thoka twisting the arm of Sepeng, and Bhoso pushing Sepeng towards the wall. Thoka hit Sepeng in the face with his elbow. Thoka saw them watching them, and came to the window to chase them away. They then left the school. They did not want to go there anymore, as it was a place of fighting. He went home and told his mother what he saw. She said it was better if he registered at another school. He saw only Thoka, Bhoso and Sepeng inside the room. Nobody entered the room while he was watching. The learners identified Thoka and Bhoso to them.

39. Under cross-examination Maditsi testified that he knew the school setup because he patrolled there at night. Sepeng was a fellow patroller, but he did not know him that well. He did not know there was a tap behind the office. The learners showed them the tap on that day.

40. Thoka twisted Sepeng’s arm while Bhoso was pushing him towards the wall, and then Thoka hit Sepeng with his elbow. Thoka then saw them at the window and chased them away. Sepeng did not respond as they were holding him. Nobody else entered the room while they were watching. It is possible that persons entered after Thoka chased them away.

41. Boitumelo Sepeng (“Sepeng”) testified under oath that worked at the centre as a general worker. Thoka is his supervisor. On 25 January 2011 he was sweeping when Bhoso came, and told him he did not clean properly on the weekend, and that he was not satisfied with his work. Sepeng told him that he could not finish the work as he was working alone. His assistant did not come to work. Bhoso accused him of being lazy and spoilt by the SGB, as Sepeng was also the vice-chairperson of the SGB. Bhoso then went to the office.

42. While Sepeng was picking up trash, Thoka came and went into the office with Bhoso. Thoka then came to him and called him harshly. Sepeng replied that he would come later, as he was still busy. Thoka came back again and asked Sepeng whether he did not hear him. Thoka grabbed him by the hand and pulled him. Sepeng followed him as Thoka was holding him. They went to the other office. Then Bhoso entered as well. Thoka said he was disrespectful towards his supervisor, Bhoso, and towards Thoka, and that he was going to teach him a lesson. Bhoso also said that he was disrespectful. Sepeng told Bhoso to stay away from him, he did not want to talk to him.

43. Sepeng was wrestling with Thoka, when Bhoso came and grabbed him by the neck. He wrestled with both of them, and he was pushed against the wall between the window and the door. Sepeng tried to push Bhoso and he retaliated by punching Sepeng with his fist on his right temple, and hitting him with his forearm on the left temple. Thoka twisted his hand, and Sepeng used his left hand to balance himself. Thoka did not let go of him the whole time. Bhoso again hit him with the forearm on the left side of his head, and punched him with his fist. Thoka then let him go after twisting his hand. Bhoso kicked him in his testicles with his knee. As Sepeng tried to defend himself against Bhoso, Thoka grabbed him by the neck and choked him. Thoka then let go of his neck.

44. Mkhize then came in, but walked out without saying anything or assisting Sepeng. Thoka pushed him against the wall, and his head hit the wall. Sepeng was dizzy and could not concentrate as normally. Some learners witnessed the incident through the window. Mabato came in and left again.

45. Sepeng was taken to the doctor by a volunteer. A4 to A7 reflect his injuries. He also opened a case at the SAPS, as reflected in A4. He was told that the docket had been lost. He was deeply distressed after the incident and received counselling.

46. Under cross-examination Sepeng testified that he was not happy with Bhoso being his supervisor, as it should have been Thoka. He did not confront Bhoso about being a foreigner. Thoka did not send a learner to call him. He had the broom in his hand, and Thoka grabbed him by the hand. He did not take the broom. They wanted to take him into the strong room. The three of them were shouting. Then they started to assault him. Thoka did not instruct him to sit down. He became dizzy during the assault, and he cannot remember all the detail. Thoka might have hit him with the elbow as Mashiane testified. Mashiane might not have seen everything, and that is why he did not testify that Bhoso hit him. Thoka did assault him as well, not only Bhoso. Sepeng questioned Thoka’s decision to leave him alone with Bhoso as well, as Thoka had to solve the problem.

47. Sepeng knows Mashiane and Maditsi from sight. They are not close. After the assault he went home to sleep and took some medicine. The chairperson advised him to open a case of assault, and he did so the same day. The police report that states that Bhoso assaulted him, is incorrect. The medical report in A6 states that he had been assaulted by two males. He made the report to the doctor before he made it to the police.

Analysis of evidence

48. The parties submitted written closing arguments which forms part of the record, and will not be repeated here. I have considered all the arguments, legal principles, Codes of Good Practice and case law referred to by the parties

49. The Applicant claims that the Respondents committed an unfair labour practice relating to disciplinary action short of dismissal, i.e. the issuing of a sanction of unpaid suspension for a period of three months.
50. The statutory provision, in terms of which this tribunal may arbitrate disputes about the fairness of disciplinary action short of dismissal, is to be found in section 186(2)(b) of the Labour Relations Act, no. 66 of 1995, which defines unfair labour practices.
51. The onus in an unfair labour practice disputes falls on the Applicant. The standard of proof applicable in hearings of this nature is identical to the civil standard – “the (applicant) must prove the case ……………on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1. The employee must prove not only the existence of the labour practice, if it is disputed, but also that it is unfair. The employer must actually have done something or refused to do something.
52. Mere unhappiness or a perception of unfairness does not establish unfair conduct – see Du Toit et al Labour Relations Law (5th ed) 488. What is fair depends upon the circumstances of a particular case and essentially involves a value judgement. The fairness required in the determination of an unfair labour practice must be fairness toward both employee and employer (see National Union of Metalworkers of SA v Vetsak Co-Operative Ltd & others 1996 (4) SA 577 (SCA) 589C–D; National Education Health & Allied Workers Union v University of Cape Town & others (2003) 24 ILJ 95 (CC) paragraph 38).
53. The arbitration of the dispute in casu entails a review of the employer’s actions. The Constitutional Court’s examination of the concept of fairness where it has been held that the arbitrator is not given the power to consider afresh what he would do but to decide whether what the employer did was fair, is relevant – see Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] JOL 20811 (CC).
54. The Applicant does not deny that Sepeng had been assaulted, but merely denies any involvement in the assault. The inference that can be drawn from that concession by the Applicant is that Bhoso was responsible for the assault, being the third person involved in the argument between the three of them on 25 January 2011. I therefore find it as proven on a balance of probabilities that Sepeng was indeed assaulted, and that he sustained the injuries shown on the medical reports. It is his version that the Applicant was an integral part of the assault.
55. I find the evidence of the Applicant and Bhoso to be inconsistent, contradictory and improbable. Bhoso came across as a very aggressive person on the witness stand, and was very evasive when questioned about the assault. I find the Applicant’s version that he left the room while the issue was not resolved yet, improbable. It would not be the conduct of a responsible Principal. I find Sepeng’s version that the Applicant was present throughout the assault, more probable. The Applicant was aware of a bad relationship, between Bhoso and Sepeng, and with that knowledge I find it improbable that he would have left them alone.
56. The Applicant contradicted himself. He testified in chief that he never saw Sepeng again that day after he left the office, but in cross-examination testified that he went to him in his room with the logbook. When he was made aware of the discrepancy, he tried to explain it by stating it was merely an encounter in his room.
57. Mabato also contradicted the evidence of the Applicant in respect of how long the incident took. She also contradicted the Applicant in that she testified that the Applicant found Sepeng in the garden with his tools, while the Applicant testified that he found Sepeng sweeping on the veranda.
58. Bhoso also contradicted the Applicant when he testified that Sepeng was still in the room when the Applicant returned with the logbook, while the Applicant testified Sepeng had already left when he returned. Bhoso also testified that Sepeng came into the office on his own, while the Applicant testified that he brought him in.
59. I accept the evidence of Mashiane and Maditsi as being credible. They are both impartial witnesses, with nothing to gain from falsely accusing the Applicant. They witnessed enough of the incident to corroborate the evidence of Sepeng in all material aspects, in respect of the Applicant’s involvement in the assault on Sepeng.
60. The evidence shows on a balance of probabilities that the Applicant made himself guilty of misconduct in that he assisted in the assault on Sepeng.
61. Any sanction imposed for misconduct must be an “appropriate” remedy, in the light of the facts of the case. The employer should consider the circumstances surrounding the commission of the offence, the employee’s blameworthiness, consistency in dealing with similar offences, the employee’s past disciplinary record, the employee’s length of service and the consequences of the particular transgression. Assault of a subordinate by a Principal must be regarded as being serious misconduct that would even lead to dismissal in most instances. In the light of the seriousness of the transgressions I am of the opinion that the sanction that was imposed, i.e. an unpaid suspension for a period of three months, is appropriate in the circumstances and cannot be regarded as being unfair.
62. I therefore find no substance in the argument that the Applicant was treated unfairly. In casu where there is no obvious or glaring deviation from the prescribed process, it would not be justified to interfere with the exercise of management’s discretion.
63. I am satisfied that the Respondents did not commit a practice that would constitute unfair action by the Respondents that resulted in unfair disciplinary action which falls within the definition of an unfair labour practice as provided for in section 186(2)(b) of the LRA. The Respondents did not act irrationally, capriciously or arbitrarily. Accordingly, the claim must be dismissed.
Relief

64. The Applicant is not entitled to relief.

Award

65. The application is dismissed.

COEN HAVENGA
Abitrator
PSES616-12/13GP