In the matter between:

S RAMDUTT Applicant

and

DEPARTMENT OF EDUCATION – KZN Respondent

ARBITRATION AWARD

Case Number: PSES 946-07/08KZN

Date of Award 20 April 2012

Head-note: Dismissal

K.C Moodley

Arbitrator/Panellist

Education Labour Relations Council

261 West Avenue, Centurion, 0046

Tel: 012 663 7446

Fax: 012 663 1601

1. DETAILS OF THE HEARING AND REPRESENTATION

The Applicant was initially represented by Advocate T Seery, instructed by Brett Purdon Attorneys. He was subsequently represented by Mr. A Bhagothidin, an attorney. The Respondent was represented by Advocate M De Klerk, instructed by the State attorney.

2. ISSUE TO BE DETERMINED

The issue to be determined is whether the dismissal of the Applicant was substantively fair or unfair. If I find that the dismissal to have been substantively unfair, I must determine the appropriate relief.

3. BACKGROUND

3.1. The Applicant was employed by the Respondent on 13 February 1987.

3.2. He was employed as an educator at Tongaat Primary School from 27 January 1992 until the date of his dismissal on 1 August 2007.

3.3 On 2 August 2006 and at the Verulam Magistrates Court, the Applicant was convicted of culpable homicide.

3.4. The Applicant was thereafter charged by the Respondent in terms of Section 18(1)(dd) of the Employment of Educators Act No 76 of 1998 (hereafter referred to as the EEA).

3.5. On 16 March 2007 the Applicant was notified of the disciplinary enquiry and of the charge.

3.6. The disciplinary hearing was held on 27 March 2007 and 25 July 2007. The Applicant pleaded guilty to the charge.

3.7. On 1 August 2007, the Applicant was notified of the sanction of dismissal in writing.

3.8. The Applicant appealed against the sanction of dismissal to the MEC.

3.9. On 12 February 2008, the Applicant was notified that the appeal had been dismissed.

3.10. The Applicant seeks retrospective reinstatement without loss of benefits as relief.

3.11. The Applicant has not placed the procedural fairness of the dismissal in dispute.

3.12. In so far as the substantive fairness of the dismissal is concerned, the Applicant challenges the appropriateness of dismissal as a sanction. In amplification thereof he contends that the sanction of dismissal is too harsh.

4. SURVEY OF EVIDENCE AND ARGUMENT

RESPONDENT

FIRST WITNESS

Mr. G Arumugam(hereafter referred to as Arumugam)

4.1 Arumugam was the principal at Tongaat Primary School, the school where the Applicant was employed at the time of his dismissal.

4.2. The Applicant’s duties as an educator included the delivery of the curriculum and he was responsible for the holistic development of learners.

4.3. The Applicant was also responsible for inculcating good social and moral

values in the learners during the process of curriculum delivery.

4.4. On 8 June 2004, the South African Police arrived at the school and arrested the Applicant. The Applicant did not return to the school thereafter.

4.5 On 30 June 2004, Arumugam notified the Respondent in writing that the Applicant had been arrested and charged with the murder of his female companion.

4.6 The written notification drew the Respondent’s attention to the fact that the Applicant was being held in custody at Westville prison and that the news of the Applicant’s detention in prison was extensively publicized in the local and national print media, i.e, the Sunday Times, Sunday Tribune, Post and the Coastal weekly.

SECOND WITNESS

Ms. J Dumisa (hereafter referred to as Dumisa)

4.7 Dumisa is employed by the Respondent as a Deputy Manager of Employee Relations.

4.8 She was the Presiding Officer of the Applicant’s disciplinary hearing.

4.9 Dumisa considered the mitigating and aggravating factors presented to her prior to arriving at the sanction of dismissal. The aggravating factors outweighed the mitigating factors.

4.10 She took into account the Applicant’s disciplinary record, the nature of the offence and the impact of the offence on the school.

4.11 She had disallowed a request from the initiator to call Arumugam as a witness as his testimony was unrelated to the charge that the Applicant was called upon to answer.

5. SURVEY OF EVIDENCE AND ARGUMENT

APPLICANT

SHAILESH RAMDUTH

5.1On 6 June 2006 he was at his place of residence where he and the deceased, his companion, had cohabited.

5.2They consumed alcohol in the form of beers in the morning, had lunch, and consumed more beers.

5.3.He then visited his mother in hospital, proceeded to a bar where he had more beers and eventually returned home.

5.4Upon arrival at his home, the deceased accused him of having been out to visit another woman.

5.5He later found the deceased at the gate, wanting to leave the property. He persuaded her not to leave due to the lateness of the hour.

5.6In the morning, he discovered the deceased slumped over the coffee table, she was dead.

5.7He waited for darkness to set in before loading the body into his motor vehicle. He disposed of the body on the side of the road.

5.8After his arrest he pointed out to the police the area where he had disposed of the body.

5.9He was found guilty of Culpable Homicide and sentenced to three years imprisonment, two of which were suspended for five years. He remained in prison for a period of six months before being released on parole.

5.10The Applicant testified that Arumugam had never counseled him and that their relationship was not cordial.

5.11He further testified that a learner had visited him whilst he was awaiting trial at Westville Prison.

5.12He was employed by the Respondent as an educator in a substitute post for a period of three months after his incarceration.

5.13His employment was terminated when the Respondent had discovered that he had been previously dismissed.

5.14He submitted that a fair sanction ought to have been a demotion or a transfer to another school.

6. ANALYSIS OF EVIDENCE AND ARGUMENT

In terms of Item 7 of Schedule 8 of the Labour Relations Act No 66 of 1995 (hereafter referred to as the LRA):

Guidelines in cases of dismissal for misconduct

Any person who is determining whether a dismissal for misconduct is unfair should consider –

(a) Whether or not the employee contravened a rule or standard regulating

conduct in, or of relevance to, the workplace; and

(b) If a rule or standard was contravened, whether or not –

(i) the rule was a valid or reasonable rule or standard;

(ii) the employee was aware, or could reasonably be expected to have

been aware, of the rule or standard;

(iii) the rule or standard has been consistently applied by the employer;

and

(iv) dismissal was an appropriate sanction for the contravention of the rule

or standard.”

CONTRAVENTION OF A RULE OR STANDARD

The applicant has admitted to having contravened section 18(1)(dd) of the EEA.

Section 18 of the EEA provides as follows:

Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she –

(dd) commits a common law or statutory offence;

VALIDITY OR REASONABLENESS OF THE RULE

The Applicant has conceded that the rule was valid and reasonable.

AWARENESS OF THE RULE

The Applicant has conceded that he was aware of the rule.

CONSISTENT APPLICATION OF THE RULE

The Applicant has conceded the rule was applied consistently.

APPROPRIATENESS OF SANCTION

The Applicant challenges the appropriateness of the sanction of dismissal on the basis that it was not within the discretion of the chairperson of the disciplinary hearing to have recommended the sanction of dismissal and the Respondent was thus precluded from dismissing him.

In this regard the Applicant relies on Section 18 (1)(dd) and Section 18(3) of the EEA.

Section 18 provides as follows:

(3) If, after having followed the procedures contemplated in subsection (2), a finding is made that the educator committed misconduct as contemplated in subsection (1), the employer may, in accordance with the disciplinary code and procedures contained in Schedule 2, impose a sanction of –

(a) counselling;

(b) a verbal warning;

(c) a written warning;

(d) a final written warning;

(e) a fine not exceeding one month’s salary;

(f) suspension without pay for a period not exceeding three months;

(g) demotion;

(h) a combination of the sanctions referred to in paragraphs (a) to (f); or

(i) dismissal, if the nature or extent of the misconduct warrants dismissal.

(5) An educator may be dismissed if he or she is found guilty of –

(a) dishonesty, as contemplated in subsection (1)(ee);

(b) victimising an employee for, amongst others, his or her association with a trade union, as contemplated in subsection (1)(ff);

(c) unfair discrimination, as contemplated in subsection (1)(k);

(d) rape, as contemplated in subsection (1)(dd);

(e) murder, as contemplated in subsection (1)(dd);

(f) contravening section 10 of the South African Schools Act, 1996 (Act No. 84 of 1996), as contemplated in subsection (1)(dd).

Section 18(1) lists a range of instances where the conduct of an educator may result

in the breakdown of the employment relationship. Included in the list is the instance

where an educator commits a common law or a statutory offence. It is common

cause that the Applicant, having been convicted of culpable homicide, a common

law offence, is guilty of having contravened Section 18(1)(dd). Section 18(5) lists

range of sanctions, including dismissal, that may be imposed as a result of a

contravention of Section18(1). The sanction of dismissal was imposed as a

consequence of the Applicant’s transgression.

The Applicant’s contention that the sanction of dismissal may only be imposed if an

educator is found guilty of rape or murder in terms of Section 18(3)(dd) and (ee)

respectively, cannot be sustained. The implication of that argument is that

an educator who commits an offence of robbery, attempted theft, attempted rape

and other serious offences cannot be dismissed at all. This is surely an untenable situation where it would then become acceptable for an educator to commit robbery at night and be in the classroom in the morning. On the applicant’s argument such an employee must be given a sanction short of dismissal. On the other hand an educator who is found guilty of rape or murder may be dismissed. Surely the legislature could not have intended that such an interpretation be ascribed to Section 18(1) read together with Section 18(3).

Educators can only be employed in education if they are registered with The South African Council of Educators (SACE) and are bound by its Code of Professional Ethics of Educators, which states:

“Educators who are registered or provisionally registered with the South African Council for Educators……

· “acknowledge the noble calling of their profession to educate and train the learners of our country;

· Acknowledge that the attitude, dedication, self-discipline, ideals, training and conduct of the teaching profession determine the quality of education in this country;

· Acknowledge, uphold and promote basic human rights, as embodied in the Constitution of South Africa;

· Commit themselves therefore, to do all within their power, in the exercising of their professional duties, to act in accordance with the ideals of their profession, as expressed in this code;

· Should act in a proper and becoming way so that their behaviour does not bring the teaching profession into disrepute”.

The Applicant, having been employed as an educator, played an important role in

society and was expected to be a role model to learners. In performing their duties,

educators act in loco parentis when interacting with learners. When the learner enters the school gates, parents/guardians are in effect agreeing to allow the educators and other staff at the school to act ‘in loco parentis. An educator should consider it his duty to educate and train his learners and should accept responsibility accordingly. He should feel that his learners have been entrusted to him and he should avoid any breach of the trust that society has reposed in him. The conduct of an educator should thus be of such a nature that the duty of care and trust remain preserved at all times. This would include the manner in which the educator conducts himself whilst on duty and in society at large.

The Applicant had been employed in a position of trust. He had breached that trust by committing an offence in terms of section 18(3) of the EEA.

In determining the appropriateness of dismissal as a sanction regard must be had to the dictum of Ngcobo J in Sidumo v Rustenburg Platinum Mines 2007 (12) BLLR 1027 (CC).

“It is no doubt the prerogative of the employer to determine in the first instance that it will dismiss employees who are guilty of particular infractions of its disciplinary code and then in a particular case decide whether to impose that sanction. Both the rule and the sanction must be reasonable, otherwise dismissal cannot be fair. All this is implicit, if not explicit from Item 7 of the Code which requires a commissioner, in considering whether a dismissal is fair, to consider the reasonableness of the employer’s rule or standard and the appropriateness of dismissal as a sanction for the contravention of the rule or standard.

“Equally true is that when an employer determines what is an appropriate sanction in a particular case, the employer may have to choose among possible sanctions ranging from a warning to dismissal… The employer must apply his or her mind to the facts and determine the appropriate response. It is in this sense that the employer may be said to have a discretion.

But recognizing that the employer has such discretion does not mean that in determining whether the sanction imposed by the employer is fair, the commissioner must defer to the employer. Nor does it mean that the commissioner must start with bias in favour of the employer. What this means is that the commissioner … does not start with a blank page and determine afresh what the appropriate sanction is. The commissioner’s starting-point is the employer’s decision to dismiss. The commissioner’s task is not to ask what the appropriate sanction is but whether the employer’s decision to dismiss is fair.”

The sanction of dismissal was appropriate given the nature of the misconduct. I accept the Respondent’s argument that:

· The Applicant’s evidence at arbitration contradicted his statement in terms of section 115 of the Criminal Procedures Act;

· The fact that the Applicant on his own version was highly intoxicated to the extent that on the day following the death of his “partner” he did not and could not report for school;

· That he had dumped the body of his “partner” on the side of the road;

· That his previous criminal convictions, since 1992 showed a progressively worse and more serious misconduct;

· That he did not voluntarily report the death of his “partner” to the South African Police Services;

· That all of the aforesaid conduct is conduct unbecoming of an educator;

· That the Applicant as an educator ought to be a role model to the pupils of the school and the aforesaid conduct is not befitting of a role model;

· That the learners are placed in the care of the educators by their parents and there is a duty of care which cannot be fulfilled by the Applicant due to his criminal conviction and his propensity to commit crime.

The Respondent has discharged the onus of proving that the Applicant’s dismissal was based on a fair reason.

6. AWARD

6.1 The dismissal of the Applicant was substantively fair.

6.2 The matter is hereby dismissed.

6.3 There shall be no order as to costs.

________________________________

KC MOODLEY