In the ARBITRATION between:

NAPTOSA obo Sauer, D
(Union / Applicant)

and

Department of Education – Western Cape
(Respondent)

Union/Applicant’s representative: Mr F Tassiem (Union Official)
Union/Applicant’s address: 5 Antelope Street
Pacaltsdorp
6529
Telephone: (021) 686 8521 / 083 300 9403
Telefax: (021) 689 2998

Respondent’s representative: Mr Roy Jansen (ER Officer)
Respondent’s address: 17th Floor Sanlam Centre
Golden Acre
Cape Town, 8000
Telephone: (021)
Telefax: (021)

IN THE EDUCATION LABOUR RELATIONS COUNCIL
IN THE ARBITRATION

BETWEEN

NAPTOSA obo Sauer, D APPLICANT

AND

Department of Education – Western Cape RESPONDENT

ARBITRATION AWARD

CASE NUMBER: PSES 292-16/17WC
DATE/S OF HEARING: 21 and 22 February 2017
DATE CLOSING STATEMENTS SUBMITTED: 01 March 2017
DATE AWARD SUBMITTED: 15 March 2017
NAME OF PANELLIST: M M Marawu

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration hearing was held at the premises of the department of Education in George on 21 and 22 February 2017; the parties were further given until the 1st March 2017 to submit closing arguments. The applicant was represented by a trade union (NAPTOSA) official Mr Faez Tassiem and the Department by Mr Roy Jansen (Employee Relations’ Officer). The arbitration proceedings were digitally recorded.

2. There were also a number of witnesses under the age of 18 years, which were assisted by the department’s social workers while giving their testimony.

THE ISSUE TO BE DETERMINED

3. I must determine whether the Applicant’s dismissal was substantively and/or procedurally fair.

BACKGROUND TO THE ISSUE

4. The Applicant was employed with the Respondent as an Educator (Post Level 2) at Olympia School of Skills with effect from March 1992. He was earning R309000.00 per annum prior to his dismissal.

5. It is alleged that the Applicant was unfairly dismissed by the Respondent on 15 August 2016, after his appeal with the MEC for Education was unsuccessful.

SURVEY OF SUBMISSIONS AND ARGUMENTS
THE RESPONDENT’S CASE

6. Ms Charmaine Fredericks (Graziano Goeieman’s Mother) testified that she noticed her son’s mouth was swollen as well as his head on a particular Monday in January 2016. She asked him what caused his injuries, and he told her that he was assaulted by Mr Sauer at his (Mr D Sauer) home; Mr Sauer accused him of riding his horses.

7. She could see that his son was unhappy about the situation and she went to see the Principal the following day (on Tuesday) to report the incident. She did take pictures of her son’s face on that Monday, but her phone has since been damaged and could not retrieve pictures.

8. Graziano Goeieman (Former Learner @ Olypmpia School of Skills) testified with the assistance of a department of Education’s social worker and stated that he was taken to Mr Sauer’s home together with other three learners on Monday morning in January 2016. Mr Sauer entered with him inside the house and started clapping him on his face, pushed him on the ground and kicked him inside his (Mr Sauer’s) room.

9. He also brought a horse-bridal and covered his face with it, while pulling it three times. He (Mr Sauer) asked if he would ride his horses again and he said no he would not. He kicked him again at his behind, as he was leaving the house towards the car.

10. Mr Sauer went with him to the police station and asked for Mr Jantjies at the police station, who came to ask him if he did ride Mr Sauer’s horse. He was crying while Mr Sauer was beating him and plead with him that he would not do it (riding of horses) again. He had blood coming out of his mouth and on his shirt, as he was leaving the house.

11. Shahied Botma (Former Learner at Joglap College) testified with the assistance of the department of Education’s social worker and explained that Mr Sauer used a wooden pick-handle to hit him on the head, while accusing him of riding his horses. He tried to block it with his hands, but was also injured on his hands.

12. Mr Sauer got him with his friend on the road and took them to his home, where he hit him with a pick-handle. Before he hit him with the pick-handle, Mr Sauer had a knife and the pick-handle on his hands; he asked him to choose which one to punish with.

13. Mallen Craig Bantam (Former Learner at Joglap College) testified that he was present when Mr Sauer took Shahied Botma to his home and hit him with a pick-handle on the head. He was clapped by Mr Sauer on his nose, as he got them on the road and drove with them to his house.

THE APPLICANT’S CASE
14. Mr Daryll Sauer is the applicant in this matter and he testified that he has been an Educator with the department for a period of about 24 years. He started in 1992, and held a Head of Department (HOD) position at the time of his dismissal.

15. He also owned horses that were kept at the school yard. He endured problems over a period of two years, when his horses where ridden by some young boys. He would receive calls in the middle of the night that the school fence was broken into and horses were causing chaos on the highway.

16. On the charges against him, he pleaded guilty on charge 3 for clapping a young man (Mallen Bantam), who was not a student at the time of the incident. On charge 2 he was disputing the object used that it was a cane and not the wooden pick-handle, as stated by the witnesses. According to the Applicant, the two young man referred to on charges 2 and 3 were not students at the time of the incident.

17. He denied charge 1 completely, that of assaulting Graziano Goieman and stated that he simply pointed him with the finger on his face when he was identifying him as a culprit to his domestic worker in his house. He asked the Principal for permission to take the boys who were ridding over the weekend to the police station. Three of the boys reported to him that Graziano Goeieman was the one who was ridding the horses.

18. On his way to the police station, he had to start at his house to pick up and wallet. He then went straight to the police station to look for the investigating officer in charge if his case. He could not have beaten Graziano Goieman the way he testified, otherwise the domestic worker who was also inside the house could have heard him crying.

19. He was also not in good terms with the School Principal, due to his whistle blowing done in the past, so he could not risk doing anything wrong during the course of his employment. He regretted what happened and presented mitigating factors as well as expressing his sincere desire to be reinstated into his position.

20. Ms Rosina Scheepers (Domestic Worker) testified that she worked for Mr Sauer for about twenty (20) years, he has never known to be an aggressive man or short-tempered. On the morning of the 18th January 2016 he opened the door for him and a learner; he pointed the learner that it was the boy who was the culprit riding his horses.

21. He did not see Mr Sauer assaulting the learner and did not hear anyone crying. She believed that she could hear if someone was crying inside the house, as she was not too far from where they were. They did not spent much time inside the house, they left quickly.

22. Chinbrestiano Salmons (Former Learner at Olympia School of Skills) testified that on the Monday morning of the 18th January 2016 Mr Sauer drove four of them to his house on the way to the police station. Mr Sauer went with Graziano inside the house to get something and they came back quickly.

23. When Graziano came back to them in the car, he looked at Donocan funny. He was not bleeding, except for the old mark on his mouth that had its top coming off with a bit of blood. Graziano did not say anything to them, just gave Donovan a dirty look.

24. Alexander Hardens (Former Learner at Olympia School of Skills) also testified that he was with the Applicant when he drove four of them to his house on the way to the police station. Graziano argued with Donovan wanting to know why he reported him as stealing horses. Mr Sauer stopped them from fighting, because their fighting was to put him in trouble.

25. Graziano came out of the house looking the same way as he went in; there was no blood on him and was wearing a dark jacket, not a white shirt as alleged. They went inside the house to get car keys and came back quickly.

26. Godfrey Vernon Jantjies (Police Officer) testified under oath that he was investigating officer responsible for investigating the Applicant’s case of stolen horses, and that is the main reason why the Applicant came to look for him at the police station on Monday the 18th January 2016. He interviewed Graziano Goeieman about the horses that were stolen and did not notice anything on his face or appearance.

27. There was no blood or any sign of assault observed on him. A few days later case of assault was reported at the police station by Gaziano’s mother, but he does not know what happened to the case.

ANALYSIS OF SUBMISSIONS AND ARGUMENTS

28. It is common cause that the Applicant was dismissed by the Respondent on 15 August 2016. Therefore the main issue to be decided is whether the Applicant’s dismissal was procedurally and/or substantively fair. In dealing with this issue, it is critical to consider section 192 of the LRA, which states the following:
“(1) In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal.

(2) If the existence of the dismissal is established, the employer must prove that the dismissal is fair.

29. In proving substantive fairness, the Respondent presented three charges that the Applicant was dismissed on, which all related to the alleged assault of the learners in terms of article 17(1)(d) and/or article 18(1)(r) of the Employment of Educators Act no 76 of 1998 (hereafter referred to as the Act). In the first charge the Applicant was accused of serious misconduct in terms of article 17(1)(d) of the Act, in that he intended to cause grievous bodily harm by assaulting Graziano Goieman, who was a learner at Olympia School o Skills at the time of the incident.

30. There was also an alternative charge to the first charge, which related to misconduct in terms of article 18(1)(r) of the Act, for the alleged assault of the same learner. Testimony of Graziano Goeieman and his mother was relied upon to prove the allegations contained in the first charge, whereas the Applicant party relied on Mr Sauer’s testimony as well as that of Rosina Scheepers, Chinbrestiano Salmons, Alexander Hardens and Mr Godfrey Vernon Jantjies (Police Officer) in this regard.

31. As much I could not find any reason not to believe the testimony of Graziano Goieman regarding what happened inside the Applicant’s house, the Applicant’s witnesses were also equally convincing in stating that they did not observe any signs of assault or blood on Graziano Goeieman; Chinbrestiano Salmons said the blood on Graziano’s mouth came out of an old wound that was scratched on top of his mouth, whereas the Applicant said that he just pointed at Graziano’s face but did not assault him.

32. It is quite strange though that the blood seen by Chinbrestiano on Graziano’s face was only visible at the time when he came out of the Applicant’s house. Furthermore the Applicant could not provide a satisfactory explanation regarding his decision to take Graziano with him inside his house. Based on this observation and the persuasive testimony presented by Graziano Goeieman and his mother, I find on the balance of probabilities that the Applicant is guilty of misconduct for assaulting the learner in terms of article (18)(1)(r), but not to the extent of causing grievous bodily harm provided for in article 17(1)(d).

33. The second charge referred to the alleged assault of Shahieda Botma, who was a learner at Joglap College at the time; the Applicant was accused of using a pick-handle when assaulting this student, however the Applicant denied using a pick-handle but admitted to using a cane to hit Shahieda Botma on his head. The second charge relates to the misconduct contemplated in terms of article 18(1)(r), which I find the Applicant to be guilty of.

34. The Applicant did admit guilt on the third charge relating to the misconduct contemplated in terms of article (18)(1)(r) when he slapped Mallen Bantam on his face.

35. All three of the learners assaulted by the Applicant were below the age of 18 years at the time of the incidents. There are fundamental constitutional provisions dealing with the interest of children. Chapter 2 Bill of Rights in the country’s Constitution Act no 108 of 1996, Section 28 states “Every child has the right … to be protected from maltreatment, neglect, abuse or degradation.”

36. Section 28(2) & (3) further state that:

“(2) A child’s best interests are of paramount importance in every matter concerning the child.
(3) In this section ‘child’ means a person under the age of 18 years.”

37. This provision of the Constitution seek to ensure that children’s rights and best interests are nurtured in every sphere of our national life, particularly within the Education sector where children are generally positioned. There is a clear obligation resting on people working with children to treat them with due care and always act in their best interests.

38. The South African Council of Educators (SACE) also emphasises values and basic responsibilities placed upon the Educators, to always conduct themselves professionally and act in the best interest of the children. It is thus within this background that the conduct of the Applicant in this regard is viewed in a very serious light.

39. Turning to the question of the sanction imposed (dismissal) by the employer, I have to be guided by the salient principles laid down by the courts. In Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) the Constitutional Court held that fairness requires a balancing of the interest of the employer and employee parties.

40. An arbitrator must consider the totality of circumstances in determining the fairness of dismissal. In terms of the Sidumo judgment, the commissioner must:
• Take into account the totality of circumstances;
• Consider the importance of the rule that had been breached;
• Consider the reason the employer imposed the sanction of dismissal;
• The basis of the employee’s challenge to the dismissal;
• Consider the harm caused by the employee’s conduct;
• Consider whether training/instruction may result in the employee not
repeating the misconduct;
• Consider the effect of dismissal on the employee;
• Consider the employee’s service record.

41. In Fidelity Cash Management Service v Commission for Conciliation Mediation and Arbitration & others (2008) 29 ILJ 964 (LAC) the Labour Appeal Court held that in considering the totality of circumstances the commissioner would have to answer the question whether dismissal was in all of the circumstances a fair sanction. In answering that question he or she would have to use his or her own sense of fairness.

42. Based on the evidence presented before me, I am of the view that taking into account the totality of circumstances, including the Applicant’s length of service, mitigating factors and the potential effect of a serious warning on his future conduct, dismissal is not a suitable sanction in this regard.

43. Having regard to the sanctions listed in article 18(3) of the Employment of the Educators Act, I believe that suspension without pay for a period of three months, as contemplated in article 18(3)(f) is a suitable sanction, in the circumstances. The Applicant is to be placed on three (03) months unpaid suspension, for the period of 08 August to 15 November 2016.

44. No issues pertaining to procedural unfairness had been placed before the arbitrator and as such I find the dismissal of the Applicant to be procedurally fair.

45. With regards to all the factors presented above and guiding legal principles, it is my considered opinion that the employee’s dismissal was procedurally fair, but substantively unfair.

46. In terms of section 193(2) of the Labour Relations Act (LRA), once the dismissal of an employee is found to be unfair the primary remedy is that of reinstatement, unless the employee does not wish to be reinstated, circumstances surrounding dismissal are intolerable, it is not reasonably practicable or unfairness of the dismissal is only due to the employer not following a fair procedure.

47. I therefore order that the Applicant must be re-instated with effect from 1 August 2016 and reprimanded with an unpaid three months suspension in accordance with article 18(3)(f) of the Act . There amount of back-pay to be paid to the employee for the loss of income over the period of his dismissal will be limited to four months remuneration.

AWARD

48. The dismissal of Daryl Sauer was procedurally fair, but substantively unfair.

49. The employer must reinstate Mr Sauer with effect from 15 August 2016, with limited back pay amounting to R103000.00. The period of three months from 15 August to 15 November 2016 to be regarded as unpaid suspension period.

50. The employee will report for duty on Monday, 03 April 2017 at the Olypmpia School of Skills in George.

Panelist
M M Marawu