IN THE ELRC ARBITRATION

BETWEEN:

Ms. N Maritz

“the Applicant”

and

DEPARTMENT OF EDUCATION – GAUTENG PROVINCE

“the Respondent”

ARBITRATION AWARD

Case Number: PSES 272 – 12/13 GP

Date of arbitration: 04 September 2013

Date of award: 27 September 2013 (extension arranged)

COEN HAVENGA

ELRC Arbitrator

Education Labour Relations Council

ELRC Building

261 West Avenue

Centurion

Tel: 012 663 0452

Fax: 012 643 1601

E-mail: gen.sec@elrc.co.za

Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

The last day of the hearing of the arbitration took place on 04 September 2013 at the offices of the Gauteng Department of Education in Johannesburg. The Applicant is Ms. N Maritz, represented by Mr. J Botha, an advocate. The Respondent is the Gauteng Department of Education, represented by Mr. Z Nawa.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

The arbitration takes place in terms of the referral of the dispute by the Applicant. The parties held a pre – arbitration meeting, and the minutes will form part of the record.

The parties agreed that the following facts are common cause, and are accepted as proven:

The Applicant was employed by the Respondent as an educator for 28 years.
She was dismissed on 11 July 2012 subsequent to a disciplinary enquiry.
The guilt of the Applicant in respect of the charge is not in dispute.

The following issues only were placed in dispute:

PROCEDURAL FAIRNESS – The Applicant did not receive the outcome of the disciplinary hearing and the he r appeal.
SUBSTANTIVE FAIRNESS – the appropriateness and/or harshness of dismissal as a sanction.

The Applicant claims retrospective reinstatement.

The parties also agreed on the following:

To empower the arbitrator to determine the substantive and procedural fairness of the dismissal;
Annexure B of Collective agreement no. 1 of 2006 governs the procedure of the arbitration hearing; and
To empower the arbitrator to award an appropriate remedy.

The parties agreed to use one bundle of documents contained in Bundle A, pages 1 to 38. They agreed that all the documents contained therein are what it purports to be.

The Applicant was found guilty on one count of misconduct of contravening section 18(1)(q) of the Employment of Educators Act. The charge read:

Allegation 1

“It is alleged that on or around 09 September 2011 you committed an act of misconduct in that you conducted yourself in an improper, disgraceful or unacceptable manner in that you instructed learners “SB” and “NN” to take off their clothes (jerseys, dresses and shirts) in front of other learners.”.

In line with Section 28 of the Constitution the identity of the learners are protected.

PRELIMINARY ISSUES

The Respondent applied for another postponement on 04 September 2013, which was denied. The Respondent then did not call any witnesses and closed its case. The Applicant testified.

SUMMARY OF EVIDENCE

The proceedings have been recorded digitally, and a summary of the Applicant’s evidence follows below.

NAOMI MARITZ testified that she had been an educator at Allen Glen High School for 11 years. She was the register teacher for a grade 9 class that week. The educators were reprimanded by the principal for not enforcing uniform rules. Two girls came with loose hair, and every day she asked them to tie it up. They ignored her. On the day in question it was down again. She told them if they then don’t want to tie their hair up they should not wear the school uniform. She told them to take off their jerseys. She then told them to take off their dresses. She asked them whether they know why she did it. Later the principal asked her to write a statement. She heard nothing for two weeks and then received a letter of suspension. There was no evidence of a breakdown in the employment relationship led at the disciplinary hearing. Her personal circumstances appear on page 28/29 of Bundle A. She was dismissed. She received the outcome of the disciplinary hearing while she was in Klerksdorp. Mr. Mogale from the district phoned her and brought it to her there. She submitted her appeal there and then. When her salary was not paid in at the end of May 2012 she enquired why and was informed she had been dismissed. She then received a letter in the post in July 2012. It was the outcome of her appeal. The sanction of dismissal was too harsh as it was her first offence. She was under pressure and she made a wrong decision. She does not feel it left emotional scars with the learners. It was a girls-only class and the incident lasted only five minutes. They were not totally undressed. It was a form of punishment. She had 28 years’ service. During cross-examination she testified that she did not move her address of residence. She was visiting her mother in Klerksdorp. Mr. Mogale was generous enough to bring the outcome to her there. She did receive the outcome of the disciplinary hearing. When she left for Klerksdorp she informed him and that was why he called her with the letter. She did not receive the outcome of the appeal. She did not take up employment in Klerksdorp. She only helped out a friend who was a teacher and was not paid for it. She did receive the outcome of the appeal in the post later. She agrees that she might have harmed the dignity of the girls in a small way. She was acting in the interest of the school and to uphold the school rules. It was a moment of frustration. They were reprimanded in the staff room for not enforcing uniform rules. She agrees that she is subject to the code of conduct of SACE. She made a mistake.

Both representative made closing arguments which form part of the record. I have considered the arguments.

ANALYSIS OF EVIDENCE AND ARGUMENT

5.1 SUBSTANTIVE FAIRNESS OF THE DISMISSAL

In considering the substantive fairness of the dismissal of Ms. Maritz for misconduct, the principles contained in Schedule 2: Disciplinary Code and Procedures for Educators, promulgated in terms of the Employment of Educators Act, no. 76 of 1998, as well as the Code of Good Practice for Dismissals in Schedule 8 of the Labour Relations Act, no. 66 of 1995, provide the following guidelines:

Whether or not the accused employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
If the rule or standard was contravened, whether or not –
The rule was a valid or reasonable rule or standard;
The accused employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
The employer has consistently applied the rule or standard.
Dismissal was an appropriate sanction for the contravention of the rule or standard.

The dismissal of Ms. Maritz is not in dispute, and the Respondent is therefore required to prove that the dismissal was both substantively and procedurally fair. The standard of proof that is applicable in hearings of this nature is identical to the civil standard – “the employer must prove the case against the employee on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1.

Only the element of the appropriateness of the sanction needs deliberation, as the other elements were not placed in dispute by the Applicant.

5.1.1 WAS DISMISSAL AN APPROPRIATE SANCTION FOR THE CONTRAVENTION OF THE RULE?

In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness.

The Respondent has argued that dismissal is appropriate taking into account the nature of the transgression. It is therefore necessary to consider whether dismissal would be an appropriate sanction, and whether a lesser sanction would serve the desired purpose, as requested by the Applicant. In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness. The case of Sidumo v Rustenburg Platinum Mines Ltd [2007] 28 ILJ 2405 (CC) dealt with the scope of commissioners powers when deciding whether the sanction of dismissal for proven misconduct is fair. The final decision whether the sanction of dismissal for proven misconduct is appropriate rests with the commissioner. I must therefore as impartial adjudicator consider all relevant circumstances in deciding whether the dismissal of the Applicant was the appropriate sanction initially.

The Code of Good Conduct: Dismissal, states that one of the requirements of a fair dismissal for misconduct is that the dismissal must be an “appropriate” remedy, in the light of the facts of the case.

In an earlier dictum of Conradie JA a similar approach was also followed when the court pronounced that -:

“A dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise.”. The courts have accepted that the ultimate justification for employers’ power to impose discipline flows from their right to manage their business effectively. (See De Beers Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC)).

It is well established that the relationship between employer and employee is in essence one of trust and confidence and that, at common law, conduct clearly inconsistent therewith entitles the “innocent” party to cancel the agreement (See Angehrn and Piel v Federal Cold Storage Co Ltd 1908 TS 761 at 777–778.).

The Applicant as educator engaged in disgraceful and improper conduct in respect of learners which is in direct contravention of the values and obligations prescribed by The Code of Professional Ethics of Educators. She failed to act in a proper and becoming way so that her behavior does not bring the teaching profession into disrepute. Her actions amount to abuse of her position of authority. Section 28(2) of the Constitution of the Republic of South Africa, no. 108 of 1996 provides that a child’s best interests are of paramount importance in every matter concerning the child. This is a factor that I keep in mind as her conduct surely was not in the best interest of the two 14 year old learners. The fact that she was frustrated does not justify humiliating children by having them take off their clothes in front of other children. The fact that there were only girls in the class is irrelevant. She cannot claim that she acted in the interest of the school by having them remove their clothes. She surely had several alternative options of punishment available to her. As an educator with 28 years’ experience she should have known that. Society frowns upon the abuse of power by educators in a position of trust at the expense children in particular. She was an experienced educator and as such had the responsibility to offer proper guidance. She dealt with young learners. Parents and the DOE placed their trust and their children in her hands. As educator she is in daily contact with learners, and the employer must be able to trust her. It is true that the breakdown of the relationship is due to Ms. Maritz’s actions. In my opinion, Ms. Maritz is guilty of serious misconduct which in fact led to a breakdown of the trust relationship between herself and the employer, as argued by the Respondent.

The employee’s years of service does not outweigh the seriousness of her transgression.

Having considered all the facts before me, I am of the opinion that the sanction of dismissal is fair and appropriate in the circumstances.

5.2 PR0CEDURAL FAIRNESS OF THE DISMISSAL

Section 188 of the Labour Relations Act, 66 of 1995, confirms that procedural fairness is an independent requirement for a fair dismissal. In considering the procedural fairness of the dismissal of Ms. Maritz for misconduct, the principles contained in item 4 of Schedule 8 ― The Code of Good Practice: Dismissal of the Labour Relations Act, 66 of 1995, is followed. Schedule 2: Disciplinary Code and Procedures for Educators, promulgated in terms of the Employment of Educators Act, no. 76 of 1998, states the procedural requirements for discipline. The Applicant claims procedural unfairness on the basis of not having received the outcomes of the disciplinary hearing and her appeal. However, the evidence showed that she did receive it. I find no procedural irregularities that caused any prejudice to the Applicant.

6 AWARD

I find that the dismissal of Ms. Maritz is for a fair reason related to her conduct, and in accordance with a fair procedure. Ms. Maritz is not entitled to any relief.

No order is made as to costs.

C0EN HAVENGA

ARBITRATOR 27 SEPTEMBER 2012