Case Reference: ELRC666-22/23LP
Date: 28 August 2024
Panellist: MN Masetla

In the matter between:

MALEMELA DINKHOLANG JOSEPH Applicant

And

DEPARTMENT OF EDUCATION – LIMPOPO Respondent

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

1. This is an award in the arbitration between the applicant, Mr Malemela Dinkholang Joseph and the Department of Education, Limpopo, the respondent.

2. The arbitration process was held under the auspices of the Education Labour Relations Council (ELRC), in terms of section 191 (5) (a) of the Labour Relations Act, 1995, as amended (the Act) and the award is issued in terms of section 138 (7) of the Act.

3. The arbitration proceedings took place on various dates and was concluded on 19 July 2024.

4. The applicant was present and represented by Mr Monyai Thobja, SADTU official.

5. The respondent was represented by Ms Modipa Portia, Labour Relations Practitioner.

THE NATURE OF THE DISPUTE AND THE ISSUES TO BE DECIDED

6. The applicant referred an unfair labour practice dispute to the ELRC relating to a three months suspension without pay.

7. I am therefore required to determine whether the above sanction implemented by the respondent constitute unfair labour practice or not.

8. To order appropriate relief.

BACKGROUND TO THE ISSUES IN DISPUTE

9. The applicant, an educator at Hwelereng Primary School was invited to attend a disciplinary on 04 March 2022. The initial charges raised against him were fourteen (14). The applicant was only found guilty of allegations 1, 2, 3, 4 and 7. He was not found guilty on nine (9) charges. The allegations that form the basis of this process are as follows;

9.1. You verbally insulted Mahlobogoane Blessings by saying that her mother gave birth to an animal, that her mother gave birth to a dog and further said that if you can go to her home, you will find underwears.

9.2. You physically assaulted Mahlobogoane Blessings by knocking her head on the desk.

9.3. You verbally assaulted Matsemela Bokang by saying her mother gave birth to a fool and a dog and further said that if you can go to her house, you will find underwears.

9.4. You physically assaulted Matsemela Bokang by beating her with fists.

9.5. You verbally insulted Thabang Leso by saying that her mother gave birth to an animal, that her mother gave birth to a dog and further said that if you can go to his house, you will find underwear.

10. The applicant’s challenge is against the sanction implemented by the respondent.

11. The dispute remained unresolved following a conciliation process and the applicant requested that the dispute be resolved through arbitration.

SURVEY OF EVIDENCE AND ARGUMENTS
Applicant’s case

12. Dinkholang Joseph Malemela stated under oath that he teaches Life Skills for Grade 5 and 6 learners. He denies all that is alleged against him. The issue of dogs arose when he was providing lessons on caring for animals. He asked learners why they kept dogs. Those learners gave various answers like, dogs protected them as human beings. The next issue was giving dogs names since others gave names that are related to human beings as a sign that they love them. Blessings misconceived things since he was talking to the whole class about names given to dogs and the respect for dogs.

13. The one about underwear arose during a lesson on self-management. To avoid inconveniences, a case study of Lebo whose bedroom was a mess was looked into. He spoke about responsibilities at home and at school. During the case study, Lebo was eating while her socks were on the ground and underwear on the bed.

14. He further stated that he had a good relationship with Blessings who kept his desk at school. In the afternoons, Blessings would help clear his table. He believes the principal wanted him out of the school and conspired with the learners. Previously the principal organised learners to write complaint letters about him. In 2019, a learner by the name of Leticia informed him that the principal did not want him and hated him. Learners threw stones at him while he was typing an examination paper. He also once requested leave whilst his sugar level was high and the principal said that he must ask the Circuit Manager. The principal sidelines him in staff meetings and influences his colleagues not to tell him. In 2022, learners marched and demanded that he must go and the principal did nothing about it.

15. He stated further that he did not say that Bokang is a fool. He taught her English and Life Skills. He had remained with her for thirty (30) minutes in the afternoons after realising that she had difficulties. She avoided activities and ended up not attending lessons any longer. Bokang told her friends that he thought that they were fools. He wrote a report regarding Bokang’s behaviour. He denied ever beating Bokang with fists. He uses a form of non-compliance to record failures to do activities on time.

16. Similarly, with Thabang Leso, he misconceived what he said during the lesson on animals and self-management.

17. Kutullo Chaba stated under oath that she knew Blessings Mahlobogoane since she was in the same class with her from Grade R to Grade 7 at Hwelereng Primary School. She attended with her Grade 6. She also knew Matsemela Bokang who was her class mate from Grade 4 to Grade 7. She also knew Thabang Leso because there were also class mates in Grade 6, the applicant taught them English and Life Skills.

18. She indicated that the applicant said Bokang ‘s mother gave birth to an animal, he was teaching about taking care of animals and that animals can be given human beings names. The applicant taught them about food hygiene when he spoke about underwear on the ground. Both examples of animals and underwear were directed to the class as a whole.

Respondent’s case

19. Ramatsemela Joyce Maleka (Ms Maleka) stated under oath that she is the Principal of Hwelereng Primary School. He knew the applicant since he teaches at the same school. She stated that learners reported to her that the applicant insults and beat them. Parents also complained to her about the applicant’s conduct. She called the applicant and raised the issues with him. The applicant denied the allegations. The applicant instead accused her of plotting against him. The complaints continued against the applicant to the point where she informed School Governing Body (SGB). The SGB intervened and failed to resolve the matter. She informed the Circuit Manager. Eventually parents wrote a complaint to his District Senior Manager. She confirmed that Leso Thabang, Matsemela Bokang, Blessings Mahlobogoane and others reported complaints to her. Mr Mojapelo from the District Office eventually came to investigate and the applicant was charged.

20. She investigated the complaints with the entire class. The learners confirmed. She further denied that there was a lesson on self-management approved by her. She would stamp the lesson plan if she approved. The applicant’s alleged lesson plan was never approved by her and she had not seen it before.

21. Ramadimetja Olivia Mamosebo (Ms Mamosebo) stated under oath that she was the Chairperson of the School and later, a Food Handler. She knew the applicant. She was called several times to the school to attend to complaints from learners raised against the applicant. The learners complained that the applicant beat them and insults them. The SGB called the applicant to a meeting regarding the complaints. The applicant stated that ‘’he did not take instructions from a girl’’ referring to the principal. They reported the matter first to Mr Phasha and Mr Dibetso from Circuit Office. The applicant when engaged by the officials he stated that the allegations were ‘’bull lies’’. A few days thereafter, the SGB and parents resolved to write a complaint letter to the District Senior Manager, Ms Nguzana. She was part of the parents that delivered a letter to Ms Nguzana.

22. Mahlobogoane Blessings stated under oath that she did her Primary School at Hwelereng Primary School. She knew the applicant. She stated further that she was in good terms with the applicant who knew her mother very well. However, the applicant did not treat her well because he had a group of favourite learners and bad learners. She stated that the applicant did not offer a lesson on self-management. He once entered the classroom and insulted her. He stated that her mother gave birth to an animal, dog and if you have to go to her house, he would find underwear. On one of the days, he came to class and found her talking to a co-learner behind her, who was asking for a book. The applicant told her that she made noise and she apologised. The applicant banged her head against the table. She then went to report the incident to the principal. Because learners had already reported others to the principal, she was asked to write a letter. She also knew Kutullo Chaba because they stayed not too far from each other. Kutullo Chaba was part of a group that the applicant loved.

23. Matsemela Bokang testified under oath that the applicant taught him English and Life Orientation in Grade 7. One day he requested to go to the bathroom. As he was about to exit the door, the applicant pushed him. He fell down and the applicant hit him against the table. One day, he was sitting down with Leso Thabang and the whole class was talking. The applicant came and hit them with open hands on their faces. He told them that their mothers gave birth to fools. If a person were to go to their homes, they would find underwear and a bucket of urine at the door. They then reported the incident to the principal. He also insulted Bokang too.

24. Jim Thabang Leso stated under oath that he attended at Hwelereng Primary School and he knew the applicant as a good teacher but troublesome. He taught Life Skills and English. The applicant would insult them with their parent. He told them that their mothers gave birth to dogs and if he went to their homes, he would find underwear and urine buckets at the door. He was not aware of the self- management lesson offered by the applicant. He further stated that he knew Kutullo Chaba as an intelligent child.

ANALYSIS OF EVIDENCE AND ARGUMENTS

25. The applicant was initially charged with fourteen counts of misconduct. At the conclusion of the disciplinary hearing, he was found guilty of five counts of misconduct. The Chairperson imposed a sanction of three months suspension without pay. The applicant appealed the sanction and the sanction was upheld. The applicant then referred a dispute in terms of section 186 (2) of the Labour Relations Act, namely unfair labour practice and he submitted that he was not guilty of the allegations raised against him.

26. The parties concluded and signed a pre-arbitration minute on 13 December 2022. The facts in dispute were as follows:

26.1. Whether the applicant was guilty of misconduct as alleged.

26.2. Whether the sanction was appropriate.

26.3. Whether the respondent committed an unfair labour practice.

26.4. The appropriate relief if it is found to be unfair.

27. The applicant testified and called one witness, Kutullo Chaba, a former learner at Hwelereng Primary School. The respondent called five witnesses in the proceedings.

28. Count 1 and 2. The applicant was found guilty of verbally insulting Mahlobogoane Blessings by saying that her mother gave birth to an animal, that her mother gave birth to a dog and further said that if he could go to her house, he would find underwear. The applicant denied this allegation. His version was that he is a Life Skills teacher. At that time, he offered a lesson on a topic of caring for animals. He asked learners to give reasons for keeping dogs, which they did. Blessings denied that the lesson on the topic of caring for animals was given on the day, though this was corroborated by Kutullo Chaba. The applicant is a teacher expected to prepare lesson plans. The principal who testified in this case stated that the lesson plan referred to in the applicant’s bundle was never submitted to her for approval. All lesson plans are submitted to the Department Head or herself for approval. At the time of the alleged misconduct, there was no Departmental Head and the lesson plans was never submitted to her. The applicant did not deny this version. It is therefore probable that the applicant submitted the lesson plan in an attempt to defend himself in this matter. The applicant, in addition, had stated that the reason he was charged was because the principal wanted him out of the school. In this regard to principal testified that she had nothing against the applicant. In fact, when complaints against the applicant were raised, she wrote to the Circuit Office and SADTU office to intervene. The principal’s actions did not show anything that supports the applicant’s averment that she wanted him out of school. Again, the principal stated that there were complaints against the applicant before she was appointed as the principal. She had nothing against the applicant. This was not denied. The evidence clearly establishes that the applicant committed the misconduct.

29. Count 3 and 4. The applicant denied that he verbally assaulted Matsemela Bokang by uttering the words ‘his mother gave birth to a fool, a dog and said if he could go to his house, he could find underwear. He denied again that he beat him with fists. Bokang testified that he was pushed by the applicant when he requested to go to the bathroom. He fell down and the applicant hit him. There was no reason for the applicant to hit him. The applicant again hit him with open hands when he found the whole class talking. At the time, Bokang was talking to Thabang Leso. It was at this stage that the applicant told him that if he were to go to his house, he would find underwear and a bucket of urine on the door. He stated that there was no lesson on self-management. Bokang further testified that that he reported the incident to the school principal. The school principal Ms Maleka confirmed that indeed the learners came to report the incident to her. The applicant’s version was confirmed by the school principal in terms of reporting the applicant’s conduct. If Bokang’s version is not correct, why would he take steps to report the assault to the school principal. Again, the applicant stated that he used to remain with Bokang to assist him in giving additional support. If this is true, then Bokang had no ulterior motive by reporting the alleged assault to the principal. I therefore reject the applicant’s bare denial defence and accept Bokang’s testimony.

30. Count 7. The applicant’s version was that he has never said Thabang Leso’s mother gave birth to an animal and a dog, and that if he could go to his house, he would find underwear. Thabang Leso was clear and honest in my observations, and confirmed that the applicant uttered those words. Again, Thabang stated that the applicant was a good teacher but troublesome. He also confirmed that at the time the applicant uttered those words, there was no lesson on self-management.

31. To compound issues further, Ms Mamosebo former SGB Chairperson who later worked as a food handler at the school, testified that she attended several meetings where several complaints were lodged against the applicant by learners. These complaints related to beating and insulting learners. This was not challenged. In one of the meetings, when the applicant was questioned on these allegations, he said he did not take instructions from a ‘’girl’’ referring to the principal. This was not denied. These complaints were then forwarded by the SGB to the District Senior Manager. Again, in my view, this talks to the probability of the applicant having committed the misconduct. The applicant did not even show remorse when engaging with the SGB.

32. On the overall assessment of the evidence, I find that the applicant committed the misconducts raised against him. I find further that the respondent did not commit any unfair labour practice with regard to the sanction imposed.

AWARD

33. The respondent, Limpopo Department of Education did not commit any unfair labour practice with regard to the sanction imposed on the applicant.

34. The applicant’s referral is dismissed.

Signature

MN MASETLA
PANELLIST