Commissioner: Ephraim Dikotla
Case No.: ELRC819-22/23LP
Date of Award: 16 August 2024

In the ARBITRATION between:

Khathutshelo Matzheketzheke: (Employee / Applicant)

AND

Department of Education –Limpopo Province: (Employer / Respondent)

DETAILS OF THE HEARING AND REPRESENTATION

1. The arbitration was held on 25 January 2024, 05 August 2024 and 06 August 2024 at Makhado CPTD in Limpopo Province.

2. The employee was represented by H Ramuhovhi, an attorney from SO Ravele Attorneys. On 25 January 2024 the employer was represented by Eric Nyathela, its Deputy Director: Labour Relations. On 05 August 2024 and 06 August 2024 the employer was represented by P Modipa, its official.

3. Both parties undertook to submit their written closing arguments on 12 August 2024. They both obliged and these were taken into account in making my decision.

ISSUES TO BE DECIDED

4. I must determine whether or not the Respondent committed an unfair labour practice against the Applicant in terms of Section 186 (2) (b) of the Labour Relations Act 66 of 1995, as amended (the LRA) relating to a sanction of suspension of one (1) month without pay.

5. If so, to determine the appropriate relief.

BACKGROUND TO THE DISPUTE

6. The employee was appointed by the employer as an Educator at Rabali Primary School in Vhembe West District on 05 May 1987. She earned a basic salary of R44 329.64.per month.

7. She was accused of contravening the provisions of section 18 (1) (r) and (t) of the Employment of Educators Act 76 of 1998 as amended (EEA).

8. The charges read as follows:

Charge 1: ‘You contravened the provisions of Section 18(1) (r) of the Act in that on or around the 27th November 2020 or at any period incidental thereto, at or near Rabali Primary School, you attempted to or threatened to assault the Principal, Ms Makushu T.M with a chair while on duty.

Charge 2: You contravened the provisions of Section 18 (1) (t) of the Act in that on or around the 27th November 2020 or at any period incidental thereto, at or near Rabali Primary School, you shouted at the Principal, Ms. Makushu in the meeting and therefore, you displayed disrespect towards the Principal in the work-place or demonstrated insolent behavior’.

9. The employee was found guilty of these two allegations subsequent to a duly convened disciplinary hearing. She was issued with a sanction of one (1) month suspension without pay.

10. She lodged an appeal and the appeal outcome upheld the decision of the disciplinary Chairperson.

11. The employee denies the commission of the offence and furthermore, contends that the employer failed to provide her with a copy of the record of the disciplinary enquiry for the purposes of lodging an appeal in terms of section 25 (2) (a) of the Employment of Educators Act 76 of 1998 as amended (EEA).

12. She contended that the Presiding Officer did not give reasons for his findings.

13. The employee prayed for the setting aside of the findings of the disciplinary hearing.

14. The employee submitted two bundles of documents which were designated as “A” and ‘A2’. The employer submitted a bundle of documents which was designated as “R”.

SURVEY OF PARTIES’ EVIDENCE AND ARGUMENTS

15. A summary of only what is considered relevant evidence and argument is given here.

Employee’s evidence

Khathutshelo Matzheketzheke’s evidence was briefly to the following effect:

16. She is fifty nine years old and had not committed any offence previously. Reference was made to the allegations on page 1 of bundle A. She was found guilty on those charges and was not given reasons. She is not happy with the verdict as she did not commit any misconduct. On 27 November 2020, the Principal convened a meeting of the project committee members. She attended the meeting together with Mudau, Ms Mmboi and Ms Muhanganei. These three people (Mudau, Mmboi and Muhanganei) were standing up and she was seated.

17. The Principal told them that she received a call from a certain Accountant who told her that the contractor who was building the toilets owed SARS. She told the Principal that the issue of SARS is a private matter and if the contractor owed SARS, SARS would deal with the contractor. The Principal asked her if she implies that she was not telling the truth. She told the Principal that she was not telling the truth. The Principal looked angry and pointed a finger at her. The Principal said she was the one who is lying. She (employee) also told the Principal that she was the one who is lying. The Principal raised her voice and said she was the one who is lying.

18. The Principal said she (employee) told Maleka that she (Principal) was suffering from different illnesses. She (employee) also raised her voice and asked the Principal how could she have told Maleka as she did not have his cell phone numbers. She asked the Principal, what it is that she wants from her. She further told the Principal that she was tired of these types of meetings.

19. She (employee) stood up and pushed the chair she was sitting on back. The Principal stood up as well, holding a sanitizer and a laptop cable. In her mind, she thought that the Principal stood up so that she could fight. The Principal was standing on something like a chair or a table. She told the Principal that she was not standing up to fight her. She took the chair and put it together with the other chairs and walked out. As she was walking out, the Principal said she was not afraid of her and that she would beat her.

20. Her relationship with the Principal was good before the day in question but became sour after they failed to hire the contractor who was close to her.
She did not contravene section 18 (1) (r) and she did not threaten to assault the Principal. The Principal was not charged for contravening section 18 (1) (r).
Her trade union wrote a letter to the employer to get the reasons why she was found guilty. Reference was made to page 27 of A. Her attorney requested the records of the disciplinary hearing from the employer. This was not responded to and there was no explanation for not providing the records.

21. In cross-examination, she testified that the letter in which she requested the record of the disciplinary hearing was written by her lawyers and was directed to the Department’s Member of the Executive Council (MEC). She confirmed that she received the outcome of the disciplinary hearing. She maintained that she did not contravene sections 18 (1) (r) and 18 (1) (t) of the EEA.

Dakalo Mmboi’s evidence was briefly to the following effect:

22. She is currently running a cash loan business. In the year 2020 she was employed by Rabali Primary School as Cleaning Assistant and was also a member of the School Governing Body (SGB).

23. On 27 November 2020, the principal called her to attend a meeting in her office together with Mudau, Matzheketzheke (employee) and Muhanganei. She and the Principal were seated and the rest were standing. They were all members of the project committee with the exception of the Principal. The Principal (Makushu) told them that she had received a call from SARS.

24. Makushu further told them that SARS found that the tax affairs of the person who won the tender for the project were not in order. After telling them about SARS, the employee objected and raised her hand. She told Makushu that SARS could not call a person about someone’s information.

25. Makushu asked the employee if she implies that she is a liar. Her response was in the affirmative. Makushu shouted and raised her voice telling the employee that she was the one who is lying. The employee pushed her chair back, stood up and said she was leaving to go and teach the learners. She told Makushu that they were accustomed to be called to her office and they were no longer teaching the children. At that time Muhanganei had already left as he had a class to teach.

26. Makushu pushed her chair back and asked the employee if she wants to beat her. The employee told Makushu that she (employee) would not beat her as she has been employed by the employer for more than thirty years and she knows the law. Makushu took a laptop charger and a bottle of sanitizer, and told the employee that she cannot beat her. The employee then said she was going out. After the employee had left, Makushu kept on saying the employee cannot beat her. She (witness) then left the office.

27. When asked during her examination in chief if she saw the employee attempting to assault Makushu, her response was that she did not see the employee attempting to assault Makushu. She was then asked whether she did not see the employee attempting to assault Makushu or whether the attempt to assault did not happen. Her response was,’ it did not happen’.

28. She further testified that the allegations on the charge sheet did not happen. She averred that Makushu was the one who disrespected the employee and she did not hear the employee swearing at Makushu.

29. In cross examination, she maintained that she attended the meeting on 27 November 2024.
When asked about her relationship with the employee, her response was that they were colleagues. When asked again about the relationship except for being a colleague, her response was that the employee was her sister in law.

30. When asked whether Mr Marumo was present in the meeting of 27 November 2020, her response was,’ I did not see him’. She (witness) immediately stated that Marumo was not there as he withdrew from being a member of the project committee. She maintained that she heard Makushu shouting at the employee.

31. In response to the employer’s question, she testified that Mudau was present in the meeting from the beginning to the end on 27 November 2020.

Employer’s case

Tshimangadzo Matilda Makushu’s evidence was briefly to the following effect:

32. On 27 November 2020 she called a project meeting as she had received an e mail from West Point Trading. The e-mail was about a person who was hired to build flush toilets. West Point was alleging that the person who was hired (Wanga Muano) was not SARS compliant. As the e mail was talking about the project, she felt that it was proper to call a project committee meeting. She called the employee, Mudau, Marumo and Muhanganei to the meeting. She read the e mail to them.

33. As it was during classes, Mudau and Muhanganei went back to the classes. After bringing this e-mail to the attention of these people, the employee said to her, ‘is this the nonsense you took us out of the classes for?’ She told the employee that she was insulting and disrespecting her as the Principal. The employee said to her, ‘what are you going to do?’ The employee told her that SARS would not give such information.

34. The employee stood up and said she (Makushu) was full of shit. The employee told her that she was going out to call others to come and hear the nonsense she called them for. She asked the employee not to go out as she was the one who would call them. She told the employee that the people she wants to call were not part of the meeting. The employee went out still insulting her. She (Makushu) did not swear at the employee. The employee came back with Radzilani, Tshioma and Phaswana, still shouting and hurling insults at her. When the employee came back, it seemed as if she was going to sit at a place where she was seated before. Instead she went straight to her (Makushu) and the people in the room tried to stop her. The employee was saying she wants to show her what she was made of. The employee grabbed a chair and as she was about to throw it at her, Phaswana grabbed it.

35. She then struggled to breathe and Marumo drove her car to the Circuit Office. She called the Circuit Manager at that time and the Circuit Manager told her that she was not at the office. She ended up talking to the Circuit Manager late in the afternoon. The Circuit Manager advised her to put everything in writing.

36. She knew Mmboi as a former member of the project committee but she was not part of the meeting on 27 November 2020. She was the employee’s sister in law.

37. In cross-examination, she refuted the employee’s claim that she was not happy with the non appointment of West Point to build the toilets. She maintained that she received an e mail from West Point indicating that the Company which was appointed was not SARS compliant.

38. She maintained that Mmboi was not part of the meeting on 27 November 2024. Furthermore, she did not call her (Mmboi) to make a statement when the Department was conducting an investigation.

39. She refuted the employee’s claim that she took a bottle of sanitizer and a cable in an attempt to assault her (employee). She further testified that she did not tell the employee that she was not afraid of her.

40. She testified that the employee swore at her and she (Makushu) did not threatened to beat her.

41. She refuted the employee’s claim that the only person who left the room was Muhanganei and not Mudau.

42. She contended and maintained that Marumo was present in the meeting and they were not friends. According to her, as at 27 November 2020, Marumo was still a member of the project committee as she had not received a resignation letter from him as required. She further testified that she was the one who called Marumo to the meeting.

43. She maintained that the employee wanted to throw a chair at her. She (Makushu) did not shout at the employee nor attempted to assault her.

Thivhulawi Marumo’s evidence was briefly to the following effect:

44. He is employed as an Educator and temporarily based at Mapakophele Primary School. He was previously based at Rabali Primary School.

45. On 27 November 2020 he was summoned to attend a meeting in the Principal’s office. Upon his arrival, he found members of the project committee. The meeting was attended by him, NE Muhanganei, KM Matzheketzheke and NP Mudau. At a later stage, NM Tshioma, Margaret Phaswana (SGB Chairperson) and MJ Radzilani came to the meeting. He does not remember seeing Mmboi in that meeting.The Principal (Makushu) told them that she received a communiqué from West Point. She indicated that West Point was making a follow up on the project of building the toilets. In that communiqué, West Point stated that there was a Company which was not in compliance with SARS.

46. The Principal’s attempt to give print-outs of the e mail did not materialize. Some of the Educators who were members of the project committee went out to the classes to keep order. At that point, the employee responded by saying,’ is this the nonsense you called us for?’ The employee continued shouting and hurling insults at the Principal. The employee said,’ this girl is full of shit and I am going to finish her today. This is nonsense; the project is our baby’. The Principal tried to call her to order and to remain calm. He does not remember hearing the Principal hurling insults at the employee.

47. The employee said she wanted to call the others to come and listen to ‘this nonsense’. She went out and came back with Tshioma, Phaswana and Radzilani. These three were not supposed to be there. They remained standing waiting to hear what was going on. The employee went to the place where she was previously seated. She suddenly picked up a chair, held it up in the air and rushed to the Principal saying,’ this girl is full of shit and I want to finish her’. Phaswana grabbed this chair which was held by the employee and said to the employee, ‘no my sister, not this way’. Radzilani was part of the people who tried to prevent the employee from hitting the Principal with the chair. The Principal was frightened and she started crying.

48. The Principal moved back and grabbed a bottle of sanitizer. Then there was no more movement between the two (Principal and the employee) as the space became too small. The chair was finally taken away from the employee by one of the ladies who were wrestling with her.

49. He and Radzilani suggested that the Principal should be moved away from the situation at was calm. They decided that he (Marumo) should drive the Principal’s vehicle and Radzilani should follow them. They decided to go to the Circuit Office. On their way to the Circuit Office, the Principal communicated with the Circuit Manager who informed her that she was not at the office. The employee was then charged and he (Marumo) was a witness in the disciplinary hearing.

50. He believes that the employee and Mmboi connived as they were sisters in law. He was a member of the project committee but later asked to be excused the employee made him look like a bad guy. I could not remember the day he asked to be excused from being part of the project committee. When they were called to the meeting on 27 November 2020, they were called as individuals.

51. In cross-examination, he testified that he could not remember whether he was still a member of the project committee on 27 November 2020 as he had asked to be excused as a member. It was put to him that he was excused in April 2020. In response, he stated that if he was no longer a member at the time, it could not be his mistake as he was called to the meeting by the Principal. He was referred to the minutes of a meeting (bundle A2) in which it was put to him that he recused himself from the project committee on 20 June 2020. His responded by saying that if it is a true reflection, it would be the truth.
He maintained that he (Marumo) was in the meeting together with Muhanganei, Matzheketzheke, Mudau and Makushu. He does not remember seeing Mmboi in the meeting. He was not a friend of the Principal and he was not aggrieved by the non appointment of Westpoint.

52. He maintained that the employee picked up a chair and went straight to the Principal. The employee attempted to assault the Principal but was stopped by the people who were in the meeting.

53. He further maintained that Mudau and Muhanganei left the meeting to go and calm the learners.

ANALYSIS OF PARTIES’ EVIDENCE AND ARGUMENTS

54. This matter was referred in terms of Section 186 (2) (b) of the Labour Relations Act 66 of 1995 as amended (‘LRA’).

55. The employee alleges that the employer committed an unfair labour practice relating to the sanction of one month suspension without pay.

56. The employee bears the onus to prove on a balance of probabilities that the employer committed unfair labour practice towards her.

57. The first issue that I need to deal with is whether the Chairperson of the disciplinary hearing failed to give reasons for his findings to the employee. In his analysis of evidence in paragraph 5.1.2 of page 6 of bundle R, the Chairperson recorded as follows: ‘She testified that after reading the e mail, Ms Matsheketsheke started shouting at her and accused the Principal of concocting the e mail. Ms Matsheketsheke left the Principal’s office but came back after a short while. Ms Mtsheketsheke picked up a chair shouting and swearing and said to the Principal, ‘I will show you who I am’. Ms Matsheketsheke attempted to throw the chair to Ms Makushu but the other educators managed to stop her. This evidence was not challenged’.

58. In paragraph 5.1.4 of page 6 of bundle R, the Chairperson recorded that during cross examination the employee party failed to discredit or weaken Ms Makushu’s evidence.

59. The last sentence of paragraph 5.1.5 of page 6 of bundle R, the Chairperson recorded as follows: ‘This version was not challenged by the employee party and it also corroborates the testimony by the Principal that Ms Matsheketsheke used vulgar words towards her’.

60. Paragraph 5.2.3 of page 7 of bundle R, the chairperson recorded as follows: ‘Ms Matsheketsheke denied ever shouting at the Principal. She testified that on the day in question, she only took the chair and put it next to the cupboard in the Principal’s office. This version was not put to the Principal and Mr Marumo’.

61. Paragraph 5.2.4 of page 7 of bundle R, the Chairperson recorded as follows: ‘She testified that it is the Principal who wanted to hit her with a laptop and bottle of sanitizer. This version was never put to the Principal. I find this as the desperate attempt to put the blame to the Principal’.

62. It is clear to me that the Chairperson did provide the reasons for his findings, albeit brief. I therefore reject the employee’s claim that the Chairperson of the hearing did not provide reasons for his findings.

63. I now turn to deal with the issue of whether the employer failed to give the employee a record of the disciplinary hearing for the purposes of lodging an appeal in terms of Section 25 (2) (a) of the Employment of Educators Act 76 of 1998 as amended.

64. It appears to me that the employee laboured under the impression that this provision she is relying on was still in force when the sanction of one month suspension without pay was imposed. The Section she relied on was amended by Section 4 of the Education Laws Amendment Act No. 1 of 2004. It reads as follows: Section 25 of the Educators Act, 1998, is hereby amended by the substitution for subsection (2) and (3) of the following sections: “(2) An educator or employer has a right to appeal to the Minister or the Member of the Executive Council, as the case may be, against the finding by the presiding officer of a disciplinary hearing and against the sanction imposed in terms of section 18 (3) (e) to (i)”.

65. The employee based her argument on the provision which was no longer in force at the time the sanction was imposed on her. The obligation to provide an employee with a copy of the proceedings of the disciplinary enquiry has been removed. I therefore find that there is no procedural unfairness on this aspect.

66. I turn now to deal with the issue of whether the employee contravened section Section 18 (1) (r) and (t) of the Employment of Educators Act 76 of 1998 as amended.

67. This dispute emanates from an alleged misconduct that took place on 27 November 2020. It is common cause that the Principal, Makushu, convened a meeting where there was an altercation between her and the employee. Makushu testified that the purpose of the meeting was to give a report on an e mail which came from West Point. According to Makushu, Westpoint alleged that the person who was hired by the school to construct the toilets was not SARS compliant.

68. Makushu averred that after bringing this e mail to the attention of the attendees, the employee accused her of lying. It is clear to me that the employee was confrontational and disrespectful towards Makushu from the outset. She accused the Principal of lying without any facts as the meeting had just commenced. This was not the only instance where the employee disrespected Makushu on this particular day. On her own version, the employee testified that she told Makushu that she was tired of these types of meetings. She told Makushu that they were accustomed to be called to her office and they were no longer teaching the children. I do not think that a person who is respectful can address his or her senior in this matter.

69. Makushu testified that during the meeting, the employee told her that she was going out to call Radzilani, Tshioma and Phaswana to come and listen to the nonsense she called them for. Indeed the employee brought these people to the meeting despite Makushu pleading with her not to call them as they were not part of the meeting. Again, the employee disrespected and undermined Makushu’s authority by bringing the trio to the meeting.

70. The employee testified that after telling Makushu that she is lying, Makushu in turn told her that she was the one who is lying. This does not make sense to me. Why would Makushu accuse her of lying? Lying about what as she (employee) was not the one who was giving a report about the email? This is not probable.

71. In this matter, there are two irreconcilable versions. In Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et Cie and Others (2003) (1) SA 11 (SCA) the Court explained the techniques used by Courts in resolving factual disputes as one involving the making of findings on: The credibility of witnesses, the reliability of witnesses and the probabilities of each conflicting version.

72. Makushu testified that the employee insulted her and attempted to assault her with a chair. She averred that when the employee came back with Radzilani, Tshioma and Phaswana, she (employee) grabbed a chair and attempted to throw it at her. Phaswana then stopped the employee from hitting her by grabbing the chair. This version is denied by the employee. The employee contended that she stood up and pushed the chair she was sitting on and Makushu stood up as well and took a sanitizer and a laptop. In her mind, she thought that Makushu stood up so that she could fight. She stated that Makushu was standing on something like a chair or a table. She (employee) put the chair and as she was walking out, Makushu said she was not afraid of her and that she would beat her. Makushu’s evidence was largely corroborated by Marumo.

73. Much was made of whether Marumo and Mmboi were present in the meeting of 27 November 2020. Marumo testified for the employer and Mmboi for the employee. Both the employee and Mmboi contended that Marumo was not present. On the other hand, Makushu and Marumo contended that Mmboi was not present.

74. Having had the benefit of listening and observing these two witnesses (Marumo and Mmboi), I am convinced that Marumo was present in the meeting. Marumo answered questions in a logical and straightforward manner without hesitation. Makushu as well answered questions honestly to the best of her ability. At times he (Marumo) made concessions favourable to the employee. He was able to demonstrate clearly how the events unfolded in the meeting. The same cannot be said about Mmboi. Marumo testified that Makushu held a bottle of sanitizer, as claimed by the employee. However, this happened after the employee had attempted to assault Makushu with a chair. It is probable that Makushu took the bottle of sanitizer when she realized that she was being attacked by the employee.

75. The other concession that Marumo made relates to the issue of his resignation as a member of the project committee. He indicated that he could not remember the date on which he resigned as a member of the project committee, however, he was prepared to accept the employee’s claim that he resigned before 27 November 2020. But he still maintained that when Makushu called him to the meeting, he obliged as he did not know what the meeting was about.

76. I was not impressed with the manner in which Mmboi answered questions. She at times avoided answering questions honestly and this made me doubt whether she was in that meeting. Makushu stated that she received an e mail from West Point. On the hand, the employee said Makushu told them that a certain Accountant called her. Mmboi testified that Makushu told them that SARS called her. I do not understand why the two could hear her differently. The employee in her examination in chief said Makushu stood on something like a table or a chair. If indeed it is true, how can she not remember whether it was a chair or a table? Although the incident happened a long time ago, I am of the view that this is something that cannot be easily forgotten. It is strange that Mmboi did not mention this. As far as this version is concerned, it is unlikely that it happened.

77. Under cross-examination by the employer, Mmboi was asked to explain her relationship with the employee. Her response was that the employee was a colleague. She was then asked again to explain the relationship except the one of being a colleague. She then indicated that she was the employee’s sister in law. It is clear to me that she wanted to conceal this information. Therefore, her evidence must be viewed with suspicion as she had a possible motive to tell lies. Her corroboration of the employee’s evidence is doubtful.

78. Makushu testified that the employee went to call Phaswana, Radzilani and Tshioma to be part of the meeting. This evidence was corroborated by Marumo and was not contradicted. Makushu and Marumo explained the roles these people played during and after the fracas. What is bizarre to me is that the employee and Mmboi did not refer to Phaswana, Radzilani and Tshioma at all. It is probable that the reason why they did not refer to them was because they knew that what Makushu and Marumo said about them was true. Mmboi made no mention of what role did she play during and after the fracas if she was in the meeting.

79. Dakalo testified that in that meeting, she and the Principal were seated and the rest were standing. On the other hand, the employee testified that she was seated and the three (Mudau, Dakalo and Muhanganei) were standing. It appears to me that the employee and Dakalo manufactured their evidence.

80. The employee averred that Makushu threatened and disrespected her. It is noteworthy that the employee did not lodge any grievance against Makushu. Instead, it is Makushu who immediately reported the incident to the employer. The employee did not give any plausible explanation as to why Makushu and Marumo would fabricate a story against her. I have only the employee’s bald denial that she did not insult nor attempted to assault Makushu.

81. Taking into consideration the totality of the evidence, it is probable that the employee insulted and attempted to assault the employee. I am satisfied that the employee is guilty as charged.

AWARD

82. I find that the employer did not commit an unfair labour practice against the employee.

ELRC Panellist:
ME Dikotla