IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN GQEBERHA

Case No ELRC176-24/25EC

In the matter between

NAPTOSA obo D Banks Applicant

and

Department of Education: Eastern Cape Respondent

ARBITRATOR: AW Howden

HEARD: 8 to 10 October 2024

DATE OF AWARD: 22 October 2024

SUMMARY: Labour Relations Act 66 of 1995 – Alleged unfair dismissal in terms of Section 191 (1) [191 (5) (a)] – Dismissal related to misconduct.

ARBITRATION AWARD

DETAILS OF PROCEEDINGS AND REPRESENTATION

1. The dispute was scheduled for arbitration in terms of Section 191 (1) [191 (5) (a)] of the Labour Relations Act 66 of 1995 as amended (the LRA) read with Clause 17 of the ELRC Constitution: Dispute Resolution Procedure Annexure C (As amended on 26 May 2021). The arbitration was held between 8 and 10 October 2024 at the District Office of the Department of Education – Eastern Cape in Gqeberha.

2. The Applicant, Mr D Banks– Persal No 57341338/PG39, was present and was represented by Mr A Adams from NAPTOSA.

3. The Respondent, the Department of Education – Eastern Cape, was represented by Mr S Xhalisile from the Labour Relations Department.

4. The parties both submitted bundles of documents (Applicant Bundle A and Respondent Bundle B). None of the documents were in dispute and it was agreed that the documents’ contents were what they purported to be.

5. On the final day the parties requested that Closing Arguments be done in writing. The parties agreed that the written Closing Arguments should be submitted by Thursday 17 October 2024.

6. The Respondent’s Closing Arguments were received timeously, however the Applicant’s Representative requested that he be given time until Saturday afternoon, 19 October 2024, due to union members having issues at a school outside of Gqeberha. Permission was granted and the Applicant’s written Closing Arguments were received by the agreed upon time.

ISSUES IN DISPUTE

7. I am required to determine whether or not the Applicant’s dismissal was both substantively and procedurally fair.

BACKGROUND TO THE DISPUTE

8. The Applicant was employed by the Respondent as an Educator at Happydale Special School in Gqeberha. The Applicant was dismissed by the Respondent on 15 May 2024 for the charges:

Charge 1: It is alleged that you contravened Section 17 (1) (d) of the Employment of Educators Act 76 of 1998 (the EEA) as amended which inter alia reads as follows: “An educator must be dismissed if he or she is found guilty of seriously assaulting a learner with intent to cause grievous bodily harm”. You are therefore in terms of the above section alleged to have committed a serious misconduct in that on or during 9 March 2023 at Happydale Primary School you physically abused a severely intellectually disabled girl/learner (Learner A, a minor female learner at the school) by violently dragging her on the floor in the school’s corridors.

Charge 2: It is alleged that you are guilty of misconduct as contemplated in Sections 18 (1) (u) and 18 (1) (dd) of the Employment of Educators Act 76 of 1998 as amended which inter alia reads as follows: “18 (1) misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she – (u) intimidates or victimises fellow employees, learners or students: In that on or during 9 March 2023 at Happydale Primary School you physically abused a severely disabled learner (Learner A, a minor female learner at the school) by violently dragging her on the floor in the school’s corridors.

9. The Applicant seeks retrospective re-instatement should the award be in his favour.

SURVEY OF EVIDENCE AND ARGUMENT

10. It is common cause between the parties:
– That the Applicant was an Educator at Happydale Special School.
– That the Applicant was dismissed by the Respondent on 15 May 2023 for the charges mentioned in paragraph (8) above.

11. The issues in dispute are the procedural fairness as well as the substantive fairness of the dismissal.

12. The onus to prove the procedural as well as the substantive fairness of the Applicant’s dismissal shifts to the Respondent.

13. At the outset I must point out that this is a brief summary of the evidence which is relevant to the central issues and that I have taken all evidence submitted into account when making my decision.

14. For these proceedings an Inspection in Loco was performed at the school on the relevant corridors in which the incident took place as well as the Principal’s office where the CCTV Footage is recorded and stored.

15. It was further necessary to arrange “In Camera” type facilities for the learner (Learner A) that was going to testify. The learner was 17 years old while at these proceedings however was also classified as mentally challenged, hence being at the school.

Respondent’s Submissions

16. The Respondent’s first witness, Learner A, a minor female learner at the school, after being sworn in stated the following:
– That Banks had come to the classroom and told her to go to his classroom.
– That she did not want to go and told him so.
– That the teacher had told him they were busy, however he came to her so she stood up and went to his classroom.
– That it was break time but Banks had said that she could not go out, however she went out.
– That he then pulled her back to his classroom and she had asked teachers to help her/assist her.
– That after that incident she did not want to go to school anymore.
[During the cross-questioning of the witness she became emotional and we adjourned for a while. The Intermediary spent some time with her to settle her down. It however appeared that whenever she got to the actual details of the dragging she would become too emotional. After some time the Intermediary confirmed that the witness was still not in a position to testify further and possibly not even the next day.

It was decided by all present that the witness did not need to continue testifying and that the matter could proceed with that which the witness had already stated.]

17. The Respondent’s second witness, Mavia Juries – Principal, after being sworn in stated the following:
– That he only found out about the incident the next day after the sport day.
– That he wanted to investigate a “lifting of the hands” incident with Banks and requested Moodley to check the footage.
– That they then saw the footage of the incident and he reported it to the EDO.
– That in the footage Banks drags the learner (Learner A) out of the other passage with the learner battling against him.
– That they saw the footage by chance.
– That the cameras have been there for more than 5 years and all staff were aware of the cameras.
– That he had in 35 years never handled a learner in such a hard handed manner.
– That Ms Pretorius (Immigrated) had said she would bring the learner to him.

18. The Respondent’s third witness, Nikiwe Mkaza – Educator, after being sworn in stated the following:
– That she saw the Applicant forcing the learner (Learner A) to his class and at one point the learner sat down and the Applicant dragged her.
– That she was there when the Applicant dragged the learner.
– That she had told Banks to leave the learner, however he continued pulling her.
– That if it was her child she would have reported it to the Principal.

19. The Respondent’s fourth witness, Danielle Januarie – Educator, after being sworn in stated the following:
– That at break time a girl came running to her saying come as “hitting Learner A” so she went.
– That there was a commotion and the Applicant was keeping the learner down on the ground.
– That she had told Banks to leave the learner and tried to get the learner away from him.
– That at one point she was able to get the learner free from Banks.
– That the Applicant on the day should have spoken to the Social Worker to intervene.
– That the Applicant was aggressive.

20. The Respondent’s fifth witness, Jarred Moodley – Educator (HoD), after being sworn in stated the following:
– That he was in control of the CCTV equipment.
– [The CCTV footage was watched by all present]
– That the Applicant literally dragged the learner (Learner A) around the corner while on the floor and pulled her by the arm.
– That the learner was resisting.
– That the Principal had called him to look for footage of a learner trying to hit Banks when he then found this footage.
– That he was then asked by the Principal to download the footage and he gave this to the Principal.
– That the footage was not shared with anyone else.
– That no one has access to the DBR as it is in the Principal’s office and password protected.
– That the footage was not tampered with.

21. The Respondent’s sixth witness, Thembeka Gunguta – CES: EEA/Employee Relations, after being sworn in, stated the following:
– That she was the Presiding Officer in the matter.
– That her decision of dismissal was based on the facts.
– That the Applicant had requested legal representation which was denied on the day as the matter was not complex.
– That she had spoken to the Applicant to get union representation, however was told the union is useless.
– That the Applicant chose to represent himself, however it was evident that the Applicant was not used to these proceedings.
– That all evidence presented and the footage that showed the Applicant dragging the learner (Learner A) was taken into consideration.
– That this was a special needs learner and the Applicant had no remorse.
– That the learner arrived at the disciplinary hearing, however could not say anything due to trauma.

22. The witness during cross-questioning confirmed the following:
– That she was aware of the rule that if a person is suspended the disciplinary hearing should take place within 30 days, or if extended by the Presiding Officer by another 60 Days.
– That the disciplinary hearing was a 160 day long period, however this was raised at the disciplinary hearing and the Respondent gave an explanation.
– That she had only received the application for legal representation a few days before the hearing so made a decision on the day.
– That there was nothing complex about the charges.
– That it was difficult for the Applicant to cross-question the witnesses, however he specifically said they could proceed and that he would represent himself.
– That the EEA states that the finding must be made within 5 days, however she had issued the findings on the 54th day and had stated the reasons in the e-mail as she had other commitments and had apologized to both parties.
– That she agreed the Minutes of the hearing were not signed.
– That she was not initially aware of the learner’s (Learner A) position and during the procedure a Social Worker attempted to calm the learner down, however stated that the learner was not able to testify and she had assumed the Respondent would have ensured the correct environment was provided.
– That due to the learner’s position it was agreed that the mother would testify.
– That the mother was not present throughout the whole hearing.
– That the Respondent would have to respond as to why the facilities were not made available (Intermediary).
– That she was not always on her phone and had used her phone to record the proceedings.
– That she was not aware that the Applicant was back at school for a year, only knew he was back at school.

Applicant’s Submissions

23. The Applicant’s witness, Lenatha Plaatjies – Deputy Principal, after being sworn in stated the following:
– That the learner’s mother (Learner A) was in the room when she testified at the disciplinary hearing and it made her uncomfortable.
– [The witness indicated where the mother was sitting]
– That during the proceedings the Presiding Officer answered her phone on 2 to 3 occasions and she stood up to take the calls.
– That the Principal showed her and the other Deputy the footage on his phone.
– That she and others have access to the Principal’s office when he is not there.
– That she was not aware of how the CCTV footage worked only knew where it was.

24. The Applicant after being sworn in testified to the following:
– That during the disciplinary hearing the learner’s mother (Learner A) was present.
– That the Presiding Officer was on her phone during the hearing.
– That the learner came in and stated her name, then they had to adjourn for a comfort break and the Presiding Officer spoke to the Respondent’s Representative.
– That in criminal cases it is not possible for learners to not testify.
– That there was no Intermediary at the hearing.
– That the Presiding Officer had purged herself by allowing the learner’s mother to sit in on the proceedings and testify last for the Respondent. .
– That he was suspended for some three months without a disciplinary hearing.
– That he had applied for legal representation long before and there was no opposing papers.
– That he was denied a legal representative as it was not a complex matter.
– That he had decided to proceed on his own without the union.
– That the Presiding Officer had denied legal representation as it was not a complex matter, however advised him to get representation as it was a complex matter.
– That he was not given an opportunity to prepare properly to represent himself.
– That he prepared his case thoroughly, however the Presiding Officer had told him it was too much and told to get to the point.
– That he was told to condense his evidence bundle as it was too much.
– That due to another fight scheduled at break time his main focus was to get the learner away.
– That the learner, after taking her by the arm, initially walked with him then she started jumping.
– That the learner was out of control so he dragged her.
– That there were no injuries.
– That there was no J88 to substantiate the seriousness of the charge.
– That it was his intention to take the learner away from potential harm.
– That he was looking after the best interest of the learner.
– That in hindsight he would not have done things differently in the same context as most staff have an attitude towards him.
– That he could not show remorse as he was not guilty under the circumstances.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

25. Looking at the procedural aspects.

26. Schedule 2: Section 2: Principles: (b) states “discipline must be applied in a prompt, fair, consistent and just manner”.

27. The Applicant was suspended on 27 March 2023. Even though there is a Notice of Set Down for 29 May 2023 it is evident that the matter only sat for the very first time on 31 August 2023 and was only finalized on 31 October 2023.

28. The Presiding Officer stated in cross-questioning that the Respondent had given reasons for the delay at the disciplinary hearing, however no reasons were submitted during these proceedings.

29. Schedule 2: Section 6: Suspension: (3) (a) states “if an educator is suspended or transferred, the employer must do everything possible to conclude a disciplinary hearing within one month of the suspension or transfer” and (3) (b) states “The presiding officer may decide on any further postponement. Such a postponement must not exceed 90 days from the date of suspension”.
30. The Respondent has not complied with the EEA: Schedule 2 in any material way in this regard. The Constitutional Court has pointed out that delays have a serious effect on the employee and the employer alike and further pointed out that any unnecessary delays that fly in the face of the employer’s regulations are considered a procedural defect.

31. Schedule 2: Section 7: Conducting disciplinary hearings: (18) states “The presiding officer must communicate the final outcome of the hearing to the employer and the educator within 5 working days after the conclusion of the disciplinary enquiry, and the …….”.

32. The Presiding Officer confirmed the statement made by the Applicant of the non-compliance and the only response was that she had other commitments. The Respondent has not complied with the EEA: Schedule 2 in this regard.

33. The Applicant was denied legal representation by the Presiding Officer on the day of the first sitting. The Applicant however had made an application in this regard long before the first sitting and further stated that no opposing papers were issued

34. The Respondent never challenged this statement made by the Applicant in any material way in these proceedings.

35. It is trite that legal representation is not automatically allowed, this much is clear in the EEA: Schedule 2 (7) (3). The Applicant however was only informed on the day that his application for legal representation was denied. Even though the Applicant has experience as a Human Rights lawyer I still feel the appropriate thing to do was to adjourn the matter so that the Applicant could properly prepare himself or possibly take the matter to a union. Maybe even more so after the Presiding Officer could clearly see that the Applicant was struggling with cross-questioning witnesses. At this point the matter had already been extremely delayed by the Respondent.

36. On the same point, the Applicant stated that he was “threatened” with costs if the matter did not proceed on the day and further that he was not allowed to use his comprehensively prepared bundle. These statements were never put to the witness during cross-questioning.
37. Schedule 2: Section 7: Conducting disciplinary hearings: (10A) (a) states Whenever disciplinary proceedings are pending before any presiding officer, and it appears to him or her that it would expose a witness under the age of 18 years to undue mental stress or suffering if he or she testifies at such proceedings, the presiding officer may, if practicable, appoint a competent person as an intermediary in order to enable such witness to give his or her evidence through that intermediary.

38. The Presiding Officer attempted to make these proceedings believe that it was the Respondent’s responsibility to make the necessary arrangements. I disagree as it is the Presiding Officer that is supposed to guide the proceedings to ensure the process is fair and just for both parties.

39. It is evident that the EEA: Schedule 2: Section 7 (10A) was not complied with as the Respondent made no attempts to rebut this aspect of the disciplinary proceedings.

40. The Applicant has made much of the fact that the learner’s mother sat in during the whole disciplinary hearing and then still testified as the Respondent’s last witness.

41. There is nothing in labour law that states a learner’s mother cannot sit in on a disciplinary hearing. Had it taken place then it would be my opinion that it was not appropriate for a person that had an emotional interest in the case to sit in during the proceedings. It would however definitely be irregular if the mother sat in for the whole proceedings and then still testified for the Respondent at the end.

42. The Presiding Officer Gunguta testified that the mother was not present during the proceedings. The Applicant testified that the learner’s mother was present throughout the whole hearing even after he had queried her presence as a third party. It needs to be noted though that this statement was never put to the witness.

43. The mother’s presence during the disciplinary proceedings was confirmed by Plaatjies, who even pointed out where the mother sat. Although it needs to be noted that this fact was never put to Gunguta. It is further noted that the Respondent’s Representative did not attempt to rebut this statement during cross-questioning in any way.
44. The Applicant further raised the issue that the Presiding Officer took calls during the disciplinary hearing and even responded to text messages, thereby not being fully present/distracted during the proceedings.

45. Once again there is nothing in labour law that states a Presiding Officer cannot take calls and respond to messages, although I do believe it to be very unprofessional.

46. The Presiding Officer Gunguta denied this, however the Applicant and Plaatjies testified that this took place during the hearing.

47. With regards to the points raised in paragraphs (40) and (44) above, I am mindful of the fact that the Applicant and the witness, Plaatjies, spent a considerable amount of time speaking far away from everybody else just prior to Plaatjies coming in as a witness. This raises the question with regards to the credibility of the witness, Plaatjies, and even the Applicant.

48. Taking all the above into consideration, the submissions of the parties and on the balance of probability, it is my finding that the Applicant’s dismissal was procedurally unfair with regards to the points raised, however with the exclusion of the points raised in paragraphs (40) and (44).

49. Looking at the substantive issues.

50. It is basically common cause that the Applicant dragged the learner from the one corridor to another corridor and quite some distance down the other corridor by the arm.

51. The Applicant stated that he had done this to protect the learner and had her best interests at heart. The Applicant further stated that the learner was on her way to a scheduled fight.

52. The Applicant however has not provided any evidence of this alleged fight to support his statement. Surely the Applicant could have brought Learner B, a minor female learner at the school, as a witness to these proceedings. Learner B was the one that allegedly went to the Applicant earlier that morning to inform him about the fight and seek help. The courts have stated that when a key witness is not called to testify, a negative inference can be made.
53. Looking at the footage, which Moodley had confirmed under oath was not tampered with, even though not of good quality, one can see the Applicant dragging the learner around the corner and down the next corridor with purpose and determination.

54. It is further evident on the footage that after the Applicant had fallen on the learner and the Applicant had stood up again, the Applicant had man-handled the learner in an attempt to get matters under control, as the learner was jumping around trying to get free.

55. At this point the witness, Januarie, joined in and attempted to get the learner away from the Applicant. The witness testified that the Applicant was aggressive and would not let the learner go.

56. Section 28 (2) of the Constitution of South Africa clearly states “A child’s best interests are of paramount importance in every matter concerning the child”. This becomes even more important when looking at a learner that is mentally challenged.

57. The objective/aim of The Children’s Act, 38 of 2005 is the protection of children from maltreatment, neglect, abuse or degradation discrimination, exploitation and any other physical, emotional or mental harm or hazards; and that the best interests of a child are of paramount importance in every matter concerning the child.

58. The National Education Policy Act 27 of 1996 states: “No person shall administer corporal punishment, or subject a student to psychological or physical abuse at any education institution.”

59. The South African Schools Act 84 of 1996 reads: “No person may administer corporal punishment at a school to a learner. Any person who contravenes this is guilty of an offence, and liable on conviction to a sentence, which could be imposed for assault.”

60. Section 5 (3.5), (3.11) and (7.2) of the South African Council of Educators Act, 31 of 2000 clearly states that an educator must:
– Avoid any form of humiliation, and refrain from any form of abuse, physical or psychological;
– Behave in a way that enhances the dignity and status of the teaching profession and that does not bring the profession into disrepute.
61. It should be highlighted that educators play an in loco parentis role (looking after the physical and mental wellbeing of learners in the place of the parent). It is common cause that learner discipline has become a big challenge in schools, however an educator must still act in a professional manner and in the best interest of the learner. The prohibition against corporal punishment and other forms of assault/abuse on learners is a well-established and publicised rule. Its purpose is to prevent the inhuman and undignified treatment of learners.

62. The Applicant is aware of these rules and standards and the Applicant by his actions has contravened these rules and standards. I therefore find the Applicant guilty of the charges laid against him.

63. In Department of Labour v GPSSBC (2010) 31 ILJ 1313 (LAC) the Labour Appeal Court confirmed the principle that a sanction aimed at correction and rehabilitation* is of no purpose when an employee refuses to acknowledge the wrongness of his/her conduct. (Emphasis added*).

64. In the matter before the Council the Applicant had categorically stated that he would do it again if the circumstances were the same.

65. In Department of Home Affairs & another/ Ndlovu & others (2014) ILJ 3340 (LAC) it is said that in order to prove that the sanction of dismissal was appropriate, the employer must present evidence to prove breakdown in the employment relationship. Such evidence is not necessary where the breakdown is apparent from the nature of the offence and the circumstances. The matter before the Council is one of those matters.

66. In Sidumo and Another v Rustenburg Platinum Mines Ltd & Others [2007] 28 ILJ 2405 (CC); [2007] 12 BLLR 1097 (CC) in terms of the LRA a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all the relevant factors and circumstances.

67. It is not the Arbitrator’s role to determine whether the Applicant should have been dismissed for assault by the Respondent or not, as that is the Respondent’s prerogative. The Arbitrator’s role is to decide whether what the Respondent did was fair under the circumstances. It is my finding that the Respondent had acted fairly under the circumstances when dismissing the Applicant.

68. Taking all this into account, and based on the balance of probability, it is my finding that the Respondent has proven that the dismissal of the Applicant was substantively fair, however the Respondent has failed to prove that the dismissal of the Applicant was procedurally unfair.

69. Based on the fact that the Applicant’s dismissal was procedurally unfair, I find it appropriate to award the Applicant two month’s compensation. (R27 318.25 X 2 months = R54 636.50)

AWARD

70. The dismissal of the Applicant, D Banks– Persal No 57341338/PG39, by the Respondent, the Department of Education – Eastern Cape, was substantively fair, however procedurally unfair.

71. The Respondent, the Department of Education – Eastern Cape, is to pay the Applicant, D Banks– Persal No 57341338/PG39, the amount of R54 636.50 (Fifty Four Thousand Six Hundred and Thirty Six Rand and Fifty Cents) as calculated in paragraph (69) above, less PAYE and any other relevant statutory deduction by no later than 30 November 2024.

Panellist: AW Howden
ELRC