Panellist: Themba Manganyi
Case No.: ELRC1001-19/20GP
Dates of Hearing: 21 May 2021, 12 July 2021 and 19 August 2021
Date of Arguments: 25 August 2021 and 09 September 2021
Date of Award: 23 September 2021

In the Arbitration Hearing between

SAOU OBO CHRISTA VAN DER MERWE APPLICANT

And

GAUTENG DEPARTMENT OF EDUCATION RESPONDENT

Applicant’s representative:
Ms Charmaine Trent
E-Mail Address: CharmaineT@saou.co.za

Respondent’s representative:
Mr Zakhele Nawa
E-Mail Address: Zakhele.Nawa@gauteng.gov.za

Details of hearing and representation

1. This is an arbitration award in terms of section 138(7) of the Labour Relations Act 66 of 1995 (“the LRA”), as amended, for an alleged unfair labour practice dispute referred by SAOU obo Christa van der Merwe (“vd Merwe”), the Applicant, to the ELRC (“the Council”). The Respondent in this matter is Gauteng Department of Education. Ms Charmaine Trent (“Trent”), a SAOU Official, represented the Applicant and Mr Zakhele Nawa (“Nawa”) represented the Respondent.

2. The arbitration proceedings were conducted on 21 May 2021, 12 July 2021 and 19 August 2021 at the Gauteng East District Office in Springs and also via a Zoom virtual platform for one of the witnesses on 19 August 2021. The parties submitted bundles of documents and the Applicant’s bundle was marked as Bundle A and the Respondent’s as Bundle R. The Applicant also submitted an audio recording from the disciplinary hearing. At the end of the proceedings parties agreed to submit their heads of arguments in writing on or before 25 August 2021. Both parties complied. However, due to technical glitches, I only received the Applicant’s heads of arguments on 09 September 2021. The contents of the bundle and the recording were not disputed. The proceedings were digitally recorded and the recording thereof was retained by the Council.

Issue/s to be decided

3. I must determine whether the Respondent subjected the Applicant to an unfair labour practice as contemplated in section 186(2)(b) of the LRA. If I find that the Applicant was subjected to an unfair labour practice, I would be required to determine the appropriate relief.

Background

4. The Respondent employed the Applicant as an Educator PL1 since 1983. At the time of the alleged incident, the Applicant was employed at Selpark Primary School. The Respondent preferred two charges in terms of section 18(1)(r) of the Employment of Educators Act 76 of 1998 against the Applicant. The Applicant was found guilty on both allegations and three sanctions were meted out. These sanctions were:
• Fine of R8 000, 00 payable over 5 months;
• Final written warning valid for 12 months; and
• Referral to Employee Assistance Programme

5. Subsequent to the sanction, the Applicant filed an appeal and the outcome of the appeal proceedings overturned the R8 000, 00 fine and substituted it with three months’ suspension without pay and the other two sanctions remained . On this basis, the Applicant referred a dispute to the Council challenging the procedural and the substantive fairness of both the disciplinary hearing and appeal hearing. She also challenged the inconsistent application of the rule and she relied on Ms Beverley du Preez (“du Preez”) – another educator, as the comparator. As a relief, she sought the reversal of the sanction on both substantive and procedural grounds.

Survey of evidence and arguments

6. Since this is an alleged unfair labour practice dispute, the Applicant bears the onus of proof and thus, a duty to begin in these proceedings.

The Applicant’s case

7. Van der Merwe testified under oath and stated that she referred this dispute to the Council because she was not satisfied with the wording of the charges and that she mentioned at the pre-hearing that the wording of the charges incorrectly captured what happened. She stated that she did not get the opportunity to express herself at the appeal hearing. She testified that she was accused of punching a learner, whereas she did not punch the learner. During the pre-hearing, she asked Ms Tsakani Nkuna (“Nkuna”), the LR Officer for the Respondent, if she should bring her representative at the pre-hearing, but Nkuna told her that it was not necessary.

8. She stated that at the disciplinary hearing, she explained to the chairperson that she only touched the learner and did not assault him and the chairperson asked her if she was guilty or not. She said she was guilty for touching the learner. She explained that du Preez came to her class on 03 August 2018 holding a learner in her hand and the learner tried to move away from du Preez. Du Preez lost her balance and she (Applicant) hurried from where she was to try to catch du Preez from falling. In the process, because there were many learners in her class, she had to push through the learners to get to du Preez. She stated that she did not see du Preez punching the learner.

9. On inconsistency, she stated that du Preez was subjected to a disciplinary meeting as per page 12 of Bundle A on 21 August 2018 whereas she was not called for a disciplinary meeting. At the disciplinary hearing, she pleaded guilty to the first charge for assault and not for punching the learner. Similarly, on the second charge, she pleaded guilty for grabbing the learner and not for pushing him. During the disciplinary hearing, Nkuna tried to explain to the chairperson that the Applicant was not in agreement with the wording of the charges. She stated that there were no witnesses that were called during the disciplinary hearing and page 1 of Bundle A was submitted into evidence.

10. Regarding the appeal process, she stated that she was never called by the Appeal Authority to appear so that she could be heard. She stated that the disciplinary hearing chairperson had the audio record with her and that the appeal hearing proceeded without the audio recording.

11. Under cross-examination, she stated that she was coerced to agree to the charge during the pre-hearing under the impression that she would be afforded an opportunity to state her case during the disciplinary hearing. She conceded that she was represented during the disciplinary hearing albeit by an inexperienced representative. She conceded that in terms of the audio recording, she pleaded guilty to both charges. She stated that she was in way forced to plead guilty because she was told that she would get a chance to state her case. She reiterated that she did not witness du Preez slapping the learner. She submitted that du Preez informed her that she was only subjected to a disciplinary meeting as per page 12 of Bundle A and that du Preez resigned from the Department. She stated that she was assisted by Solidarity for her appeal and that she was told that the sanction might remain unchanged or be reduced.

12. Du Preez testified under affirmation via a virtual platform and stated that in 2018 she was an educator at Selpark Primary School. She stated that on 03 August 2018 there were few educators at school and one of her learners was naughty in class. She took the learner to van der Merwe’s class and that she had her hand on the learner’s shoulder. The learner pulled away and she fell. She stated that van der Merwe never hit the learner at all. She testified that as per page 12 of Bundle A she was called to a disciplinary meeting and in attendance, there was the Principal and the three SMT members. She testified that she only realized that she has hit the learner when she viewed the video footage during the disciplinary meeting.

13. Under cross-examination, she stated that she was not aware that van der Merwe pleaded guilty during the disciplinary hearing. She stated that there was no decision that was taken following the disciplinary meeting except for apologizing to the learner and his parents and that the matter was going to be reported to the Labour Unit. She submitted that she only realized that there was going to be a disciplinary hearing against her when she received page 3 of Bundle A . She felt that she was already subjected to a disciplinary hearing on 21 August 2018. She stated that she resigned from the Department on 31 December 2018.

The Respondent’s case

14. Nkuna testified under oath and stated that amongst her duties as a Labour Relations Officer was to conduct investigations for allegations of misconducts by educators related to learners and to preside over disciplinary hearings. She stated that she was familiar with the contents of the letter on page 1 of Bundle A . She stated that she was not aware of the disciplinary meeting for du Preez on page 12 of Bundle A because the Principal did not bring it to her attention and stated that she would have taken an issue with the meeting as it was procedurally flawed. She confirmed that du Preez did not receive the charge sheet. She stated that she made two submissions regarding van der Merwe and du Preez to her manager and the charge sheet came back in May 2019. She could not serve du Preez with the charge sheet because she (du Preez) had already resigned. She averred that van der Merwe had difficulty in accepting the document on page 3 of Bundle A.

15. Under cross-examination, she conceded that she did not know that the incident occurred as a result of the learner pulling away from du Preez resulting in du Preez falling. She conceded that she did not interview du Preez about the incident that occurred on 03 August 2018 in van der Merwe’s class. She confirmed that the Principal did not give her the documents on pages 13 to 15 . She submitted that she was seeing page 12 of Bundle A for the first time during these proceedings and further stated that the disciplinary meeting was a flaw. She stated that Principals are not supposed to conduct disciplinary meetings for assault allegations and that this would have led to the educator being subjected to discipline twice. She conceded that there are a lot of inconsistencies between van der Merwe and du Preez’ matters.

Analysis of evidence and argument

16. Section 138(7) of the LRA requires a commissioner to issue an award with his brief reasons. With this in mind, I will only restate the evidence and submissions that I find critical to assist me in arriving at a reasonable determination. However, I have considered all the evidence and the arguments.

17. Section 185(b) of the LRA prescribes that every employee has a right not to be subjected to unfair labour practice. Section 186(2)(b) of the LRA defines unfair labour practice as any unfair act or omission that arises between an employer and an employee involving the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee. In determining the procedural and the substantive fairness of a dispute, I will be guided by Schedule 8, Item 4 and 7 of the Code of Good Practice: Dismissal and other applicable schedules.

18. It is common cause that the Applicant was charged with two counts of misconduct and that before she was subjected to a disciplinary hearing, there was a pre-hearing on 01 October 2019. It is common cause that the disciplinary hearing tribunal returned a guilty verdict after the Applicant pleaded guilty and meted out a sanction of a R8 000, 00 fine amongst others. It is further common cause that the Applicant appealed the disciplinary hearing sanction and that the appeal hearing overturned the disciplinary hearing sanction and meted out a sanction of three months’ suspension, final written warning and a referral to EAP. It is also common cause that the incident that led to the Applicant’s disciplinary process also involved du Preez. It is not in dispute that du Preez was subjected to a disciplinary meeting on 21 August 2018 and the Applicant was never called to attend a disciplinary meeting.

19. The factual matrix of this case is premised on the occurrence of 03 August 2018 in the Applicant’s class. I have noted that the disciplinary and the appeal hearing outcome made reference to the incident having occurred on 02 August 2018. As per the evidence that was led during these proceedings, the incident occurred on 03 August 2018. The Applicant and du Preez’ version were corroborative and they were consistent during their evidence in chief and during cross-examination. It is a fact that the Applicant and du Preez were the only witnesses that testified during these proceedings who had witnessed the incident of 03 August 2018.

20. It was du Preez’ testimony that she viewed a CCTV video footage of the day of the incident during her disciplinary meeting. In her testimony, she stated that she saw on the footage that she hit the learner when she was falling. She further stated that the Applicant never hit the learner at all. I do not have any reason to second guess her uncontested evidence. Nkuna impressed me as a witness. She was consistent and credible during her evidence in chief and during cross-examination. She confirmed that the Applicant during the pre-hearing meeting had an issue with the wording of the charges that were preferred against her and that the Applicant also raised her concern with the wording of the charges during the disciplinary hearing. It is not disputed that the Applicant pleaded guilty to the charges. However, her guilty plea was premised on the fact that she could have had contact with the learners when she was hurrying to catch du Preez from falling. In my view, if the disciplinary hearing chairperson had allowed her to qualify her guilty plea, the chairperson would have come to a different finding.

21. I find it prudent to state the legal definition of assault at this point in order to substantiate my reasoning in this matter. Assault is defined as an act of intentionally placing another individual in reasonable apprehension of imminent bodily harm or offensive contact. Was there intent on the part of the Applicant to assault the learners as stated on the two charges? The answer is ‘NO’. The Applicant did not deny that she made physical contact with the learners, but it was never her intention to harm the learners. She did not even have a motive to assault the learners. Consequently, I find that the Applicant did not assault the learners as alleged.

22. With regard to the challenge of the inconsistent application of the rule, firstly I find that the disciplinary meeting that was held for du Preez was unprocedural as there is no provision for same in cases of misconduct in terms of section 18 of the Employment of Educators Act. Nkuna testified that the audi letters were prepared for both the Applicant and du Preez on 4 September 2018 and that when she went to Selpark Primary School to conduct pre-hearings for the Applicant and du Preez, the Principal informed her that du Preez was not available. Therefore, she could not conduct a pre-hearing with du Preez. Nkuna further stated that the charge sheet for both the Applicant and du Preez were received by the Labour Unit sometime in May 2019 and at that time du Preez had already resigned. Clearly, the Respondent had all the intention of subjecting du Preez to a disciplinary hearing, but the Respondent no longer had jurisdiction to discipline du Preez. Therefore, I do not find that there was any inconsistent application of the rule in this matter.

23. I will now turn to the appeal hearing findings. Schedule 2, clause 9 of the Employment of Educators Act makes provisions for appeals. Sub-clause 5(b) provides that the MEC or the Minister must consider the appeal and may in cases of misconduct contemplated in section 18 amend the sanction. Amending would mean to lessen or increase it. In the appeal outcome report, the MEC on paragraph 4 stated that:

“The evidence presented by the school, particularly that of the learners, was corroborated without contradictions, there is no evidence before me that you were refused representative during the hearing and it does not seem that you were prevented from making representation and in any event, you pleaded guilty to the charges preferred against you”. (sic)

24. These assertions, I respectfully submit, are factually misplaced and thus incorrect and misleading. Firstly, there was not even a single learner that testified during the disciplinary hearing. In fact, there was no evidence that was led at all. Then it follows that if there was no evidence that was led, there would be no mention of corroboration. In my view, this appeal process was just an administrative action without due consideration to the principles of natural justice. Had the MEC listened to the disciplinary hearing recording, it would have been evident that the Applicant did not make any representations during the disciplinary hearing and that there were no witnesses that testified. Alternatively, if the audi alteram partem rule was employed in dealing with this appeal, in my view, the MEC would have arrived at a different decision.

25. It was not disputed that the disciplinary hearing chairperson always had the audio recording with her and that it took some doing by the Applicant’s representative to retrieve same from her. The recording was only made available during these arbitration proceedings. I therefore conclude that the audio recording was not available during the appeal hearing. In the absence of the recording, it was prudent for the MEC to invoke the prescripts of clause 9(4) of Schedule 2. In the end, I conclude that the appeal hearing’s finding was irrational and having considered the evidence that was before me, I find that the Applicant was not guilty of the allegations that were levelled against her. I further find that the Applicant succeeded in discharging her burden of proof on a balance of probabilities that the Respondent has subjected her to an unfair labour practice.

Award

I therefore award as follows:

26. The Respondent, the Gauteng Department of Education, has subjected the Applicant, Mrs Christa van Der Merwe, to an unfair labour practice as contemplated in section 186(2)(b) of the LRA.

27. The Respondent is ordered to repeal the disciplinary and the appeal hearing sanctions in their totality and to reimburse the Applicant her three months’ salary on or before 15 October 2021.

Arbitrator: Themba Manganyi