In the ARBITRATION between

SADTU obo GAYE URSULA RAUBENHEIMER
(Union/Applicant)
And

WESTERN CAPE EDUCATION DEPARTMENT
(Respondent)

Employee’s representative: Mr Simphiwe S Mbalo
Applicant’s address: 16 Linx Street
Delville Park
Pacaltsdorp
George
6530
Telephone: 083 534 9214/073 613 6480
Telefax:
E-mail: smbalo@sadtu.org.za

Employer’s representative: Mr Clayton Vorster
Respondent’s address: Western Cape Education Department
Private Bag X9114
Cape Town
8000
Telephone: 021 467 9223
Telefax: 086 662 6022
E-mail: Clayton.vorster@westerncape.gov.za

DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing was convened on 6 December 2019; and the arbitration hearing was partly heard due to time constraints. The hearing was set down to reconvene on 11 February 2020; 7, 8, 9 and 10 September 2020 respectively. All proceedings were held at the Respondent’s premises; the offices of the Western Cape Department of Education in George, to consider the Applicant’s claim for unfair dismissal for misconduct.

2. The Applicant applied on notice for legal representation and the application was opposed during which parties were invited to make formal submissions in order for me to make an Interlocutory ruling before we continued with the arbitration proceedings. The application for legal representation was declined on the basis that the dispute involves the Applicant’s conduct.

3. Having declined the application for legal representation it was brought to my attention that the Applicant was a paid up member of the South African Democratic Teachers Union (SADTU) and the Applicant was afforded an opportunity to seek advice and representation from her trade union.

4. The Applicant was present and represented by Mr Simphiwe S Mbalo; the trade union official for SADTU; a duly registered trade union in accordance with the provisions of the Labour Relations Act 66 of 1995 as amended; the (“LRA”). The Respondent was represented by Mr Clayton Vorster; the Respondent’s Employee Relations Officer.

5. The commissioner have decided to recall the two witnesses, Mr Clifton Titus and Ms Letitia Steenkamp to afford them an opportunity to respond to evidence which was not put to them to respond to.

6. The parties submitted bundles of documents and called witnesses. The hearing was conducted in English and Afrikaans while the proceedings were fully explained to the parties. Mr Daniel Kova; a duly appointed interpreter and intermediary, by the Education Labour Relations Council (ELRC); a bargaining council registered in terms of the LRA. Hand written notes were kept and the proceedings were digitally recorded.

ISSUE TO BE DECIDED
7. I must decide whether the Applicant’s dismissal was substantively fair. If so found, I must also decide on the appropriate relief. The procedural fairness is not in dispute.

BACKGROUND TO THE DISPUTE
8. The Applicant is a teacher by profession for 33 years. She commenced employment on 1 January 1993. She was dismissed for misconduct on 18 June 2019 and earned R42 277. 00 per month. At the time of her dismissal she occupied the position of Deputy Principal at Pacaltsdorp Senior Secondary school.

9. The Applicant was charged with the following allegations of misconduct: “that during the second term of 2018, she failed to comply with section 28 (1) (d) of the Constitution of the Republic of South Africa of 1996, as well as section 32 (1) (b) of the Children’s Act of 2005 in that she degraded learner “A” *; a learned at Pacaltsdorp Secondary School by uttering more or less the following words to him; “Jy is a skeelgat en dis hoekom jy so dom is”

10. The alternative charge to charge 1 is “that during the second terms of 2018, while on duty, she conducted herself in an improper, disgraceful or unacceptable manner by uttering more or less the following words towards learned “A” * at Pacaltsdorp Senior Secondary School; “jy is n skeelgat en dis hoekom jy so dom is”.

11. The Applicant denies the allegations and seeks retrospective reinstatement if the dismissal was found to be unfair.

THE RESPONDENT’S CASE
12. The Respondent’s first witness was Mr Clifton Titus (“Titus”) is the Principal of the school and occupies the position since 1 January 2018. He confirms that the Applicant was his Deputy Principal. He explains that during the course of 2018 an incident involving the Applicant and a learner by the name of Ronaldo Mostert was reported to him upon his return back to school after attending a week long course in Cape Town in terms of which the Applicant uttered words to the learner that was degrading; it was reported that the Applicant have uttered the words in Afrikaans “jy is n skeelgat en dis hoekom jy so dom is”.

13. Titus immediately makes contact with the circuit manager and reported the matter at that level as he felt that this was a matter beyond his position and part of his mandate is to report incidents of misconduct to his seniors. He was subsequently advised to report the matter to the head of Labour Relations, Mr Anwar Allie in the Cape Town office. He said other learners; Chad Morris, Enrico Stuurman and Le Roy Herman also confirmed that they were present when the Applicant uttered these words to Renaldo.

14. He said from what he heard the incident started when Leroy Herman’s cellular phone was confiscated during class periods by Ms Steenkamp; also a teacher at the school. They went to Ms Steenkamp as a group of learners to ask her to give back the cellular phone and while they were busy talking with Steenkamp, the Applicant joined them with Ms Gersham Pick also standing nearby and it was at that point when the Applicant uttered the words. He heard from Steenkamp that Ms Pick was also present when the incident happened and according to Steenkamp, every one that was there has heard what the Applicant said to Renaldo.

15. Pick also approached him and confirm the incident and conveyed to him exactly what words the Applicant uttered towards the learner. He said Pick also reported to him that she was at the nearby shop when she was asked by the shop assistant whether she knew about the incident that happened at the school involving the Applicant and the learner. According to her the shop assistant saw the learner crying on the school premises the day before. He said he could only speak to what was reported to him by the learners, teachers and none teaching personnel who were present when the incident occurs.

16. He testified that the learner’s one eye is squinting and this made him to believe that there might be some truth in the accusations; hence he decided to report the incident to the circuit manager. He said if there is truth in the accusations he would have a problem with it as such conduct is unbecoming and unacceptable from a professional perspective. The learner could not help for his disability and uttering words like this make affect him negatively. He said they are working with children in a learning institution where they tried to build learners not to degrade them. In this particular instance, the learner was degraded by the teacher.

17. It was put to Titus that evidence were led by the learners and a none teaching staff that their version has now changed to the following effect: The learners, Jaydene Morris, Chad Morris, and Hendrico Stuurman that they were bribed with Kentucky Fried Chicken and that the Principal gave Hendrico Stuurman R50. 00 while making promises that they were going to stay in his house in Knysna every weekend, and that he will make sure that they passed and to pay for the university fees. Titus confirmed that he bought Kentucky on the day of the disciplinary hearing. He said they were at the district office whole morning and round about lunch time; Steenkamp approached him saying that she was hungry if he would buy something to eat. Titus agrees and proposed to buy pies. Steenkamp did not want pies and they eventually agree to Kentucky fried chicken. While he was busy talking to Steenkamp, the learners also said that they are hungry and he decided to buy food for all of them including the parents of Renaldo Mostert that were there and when he return with the food, they all sat in a board room where Steenkamp shared the food.

18. He denied having promised them anything. When he was appointed as the Principal he relocated from Knysna with his family. He does not own a holiday house in Knysna and while they were travelling in the car to the district office for the disciplinary hearing he did not talk about the case. He also denies having paid R50. 00 to Hendrico. However, what he could remember was that the Applicant at some point gave them R5.00 to buy chips. Titus further denies having made a promise that he would pay for their University or college fees. He explains around the same time their school was visited by NSFAS and other learning institutions when they were rolling out a program to market their respective institutions. Ms Steenkamp was the head of the grades that qualified, and she also drove the process. As the principal, he took it upon himself to go to each class room and conveyed that NSFAS and other institutions such as South Cape College and Skills for Africa were going to address all the students. He said that Chad Morris was a phase learner who qualifies to be promoted if he were to fail grade 10 at the time.

19. According to the rules, a learner may not fail twice and would then become a phase learner. Chad did not pass because he testified against the Applicant at the disciplinary hearing. He also never said that he wants to work out Raubenheimer from the school. He said he took them to the district office at 9:30, they there the whole morning and he when he bought KFC, he did it so that everybody could eat. During cross examination, it was put to him that Chad Morris said that he was going to ensure that he passed his grade and he was overwhelmed when he passed all his subjects with code 1. He responded that it was not only Chad Morris that passed with code 1, there were more phase learners and consequently they were part of a group of learners that qualified for promotion. This was signed off by the Circuit manager, Mr Eksteen at the Promotion and Progression session at the district office.

20. Titus explained the Promotion and Progression session. He said that there are four phases such as the foundation phase; intermediary phase; general education training and further education training phase. A learner can only fail once in a phase thereafter the learner must be promoted. This could only happen at the Promotion and Progression process, therefore he could never have influenced the process.

21. During cross examination, Titus testified that he has a good relationship with the personnel; teaching and none teaching staff at the school and he therefore does not have any reason to make up stories to incriminate them. Titus said that part of the Applicant’s responsibilities as the Deputy Principal was to deal with the discipline at the school, she is second in command and act as the principal in the absence of the principal when power of authority are given to her and when the person dealing with discipline was herself the subject for discipline, he would refer it to the next level.

22. During cross examination, when the question was asked as to whether the learner, Ronaldo Mostert was a drop out in 2018, Titus responded that he was not a drop out as he was still enrolled at the time of the incident. He felt uncomfortable at the school and the reason for him not writing the examination was because of this incident. He said the incident happened in May 2018 and perhaps close to writing the June examination. He said however, the grandmother came to the school to ask whether the learner can come back to school to write the examination. The learner was never de-registering as alleged by the Applicant and her representative. He said after the learner return to school and while sitting in the foyer near the administration department while waiting for Ms Steenkamp to come fetch him for the class, the Applicant walked pass the learner (Ronaldo) and said to him, “hoekom sit jy hier want jy speel mos met my naam in die gemeenskap” he said he had to quickly intervened by asking Steenkamp to quickly place the learner in a class before this was getting out of hand.

23. Ms Letitia Rochelle Steenkamp (“Steenkamp”) testified under oath that she is a teacher and was present on the day of the incident. She knows the Applicant since 2012 as she served under the Applicant as a mentee in the Afrikaans Department. She explains that on the day of the incident, she fetched some photocopies from the offices and also wanted to hand in the cellular phone that she took from a learner earlier. On her way back to her class, the siren went off for the periods to change. The class, in which the learner was that she took the cellular phone from, was coming to her for the next period and they were making noises and were loud.

24. The Applicant approached while she was standing in the foyer, asking her in Afrikaans “wie is die Mostert wie se my man het hom uit die klas gesit” (who was Mostert who says her husband chase him out of his class). Steenkamp then showed her who Mostert was, it was when she (Applicant) said in Afrikaans “hys skeel dan is hy nog dom ook”. This happened in the presence of Ms Pick who stood by her counter and she could hear from the counter what was said. The learners that were also present were Leroy Herman, Ronaldo Mostert, Chad Morris and Enrico Stuurman. She said that when the incident happened, she did not see Carmen Saaiman anywhere near the office of the foyer.

25. Steenkamp was asked to explain her letter dated 24 October 2019; page 33 in the Respondent’s bundle of documents which was addressed to the Respondent. She explains that she was off sick after an operation when she received the telephone call from Ms Pick saying that somebody wants to speak with her. The telephone was handed to the Applicant who she (Steenkamp) was going to testify against her, whether she know who Mostert’s mother is because she (Applicant) must get the learner’s mother to withdraw the case. After a while, when the school hosted a netball game for visiting schools. While on their way to the game, the Applicant asked her whether she would be willing to take the case on her because she already has a similar record of a previous case. Steenkamp rejected her request and decided to avoid her for the rest of the day while at the netball match.

26. Steenkamp said that she would not thumb suck the story or make up a story against the Applicant because she was not playing with somebody’s work. She has nothing against the Applicant for her to make up the story. They always had a good relationship, the Applicant was her mentor in the Afrikaans department and she respects the Applicant’s position and qualification as she holds a Master’s degree in Afrikaans. She could not present Afrikaans lessons, and she is indebted to the Applicant for her mentorship and contribution to enable her to be able to present Afrikaans lessons.

27. Steenkamp testified that she also wrote a letter, page 21 in the Respondent’s bundle of documents, dated 24 October 2018, addressed to the Principal, in Afrikaans “Op Woensdag 24 Oktober 2018 het Hendrico Stuurman na haar gekom en aan haar rapporteur wat in hulle klas 8C plaasgevind het. Mnr I Raubenheimer het aan n ander leerder Ruduwaan Saaiers gese hy moet se Stuurman het die woorde geuiter aan die leerder Renalso Mostert. “Hy is skeel en nog dom ook”. Hy moet se dit het in die klas gebeur, want Stuurman wil juffrou Raubenheir haar werk laat verloor. Stuurman voel baie gegrief daaroor en voel dat hy nou geviktimiseer word”.

28. (My translation). “Hendrico Stuurman came to her on 24 October 2018 to report to her what happened in their class 8C. Mr I Raubenheimer told another learner Ruduwaan Saaiers that he (Saaiers) must say that Stuurman uttered the words to Renaldo Mostert; “hy is skeel en nog dom ook”. He must say that it happened in the class. Stuurman felt very aggrieved about it and felt that he is victimized”.

29. Steenkamp also read the letter (page 22) into the record. This is her report of the version of events. She said she wrote the report because the incident happened in front of her eyes and just to give an account of what transpired.

30. It was put to Steenkamp that according to Carmen Saaiman, on the day of incident, Steenkamp had said to her that she was yet again in trouble while she was busy making copies in the photocopy room. Steenkamp said that she was never in the photocopy room on that day and she denied having said these words to Saaiman. She confirmed that on the day of the disciplinary hearing she together with the three learners travelled with the Principal in his car to the venue (district office). She denied having influence the learners as they did not even speak about the case while driving to the venue. She said they never discuss the case in the car. She confirmed that the Principal bought them Kentucky fried chicken when she asked for something to eat. The principal agreed and bought food for all of them since all of them were at the district office since early that morning. She said when he brought the food they sat in a board room and she share the food amongst them. She also confirmed the NSFAS and educational institutions that were at the school. There was never a conversation between them that the Principal would pay for their university and college fees. She concur that this was an educational assistance program that was rolled out by NSFAS and they gave other educational institutions to also market their study programs which are financed by NSFAS.

31. Ms Gerchem Pick (“Pick”) testified that she is an Administrative Clerk for 23 years at Pacaltsdorp Senior Secondary School. She knows the Applicant for the better part of her life because she was once one of her students up to grade 12. She explained that on the day of the incident, she was present. She was standing in the middle between the Applicant and Steenkamp because she was the one that brought Steenkamp’s photocopies. She said that she heard the Applicant asking Steenkamp who Renaldo Mostert was who said her husband chased him out of his class, and when Steenkamp pointed him out, the Applicant uttered the words, “die skeelgat dan is hy nog dom ook”; she said that when the Applicant said these words to the learner, she was in shock and walked away.

32. She confirmed that the incident happened with the changing of the periods. She brought the photocopies for Steenkamp when the incident happened. She could not say what happened after that. She can remember who was present, Van Wyk, Renaldo Mostert, Chad Morris and Hendrico Stuurman. When asking whether Pick knows Shirley Fortuin, Carmen Saaiman, and Michael Frans, she responded that she know them all as they also worked at the school as none teaching staff. She said none of them were present when the incident happened. She was shocked when it was put to her that the learners have now change their version as their evidence now is that it was Ms Steenkamp that uttered the words and not the Applicant as was initially their evidence at the disciplinary hearing. She said that they are not telling the truth. She too has nothing against the Applicant and would therefore not make up stories and make wild accusations against the Applicant.

33. She said that Steenkamp also said nothing when the incident happened. She also said that after the Applicant uttered the words, the learners walked away at more or less the same time. The learners walked in the direction of the toilets and she walked back to her office. She said from a professional point of view, in her opinion, the Applicant was wrong in uttering words like these towards a learner in that was uncalled for. She confirmed that Renaldo Mostert is squint in the one eye. She said when they walked off, she could hear the learners as they walked away mumbling and she could hear Chad Morris swearing saying “fuck” the teacher as they walked off.

34. Mr Deon Rowland Achilles (“Achilles”) testified under oath that he was the presiding officer of the disciplinary hearing. He was trained to preside over internal disciplinary hearings amongst other things. It was put to Achilles that the Applicant’s representative was going to argue that Achilles, while presided over a previous matter concerning an educator by the name of Stoffels who were charged with corporate punishment, he dismissed the matter when the main witness was not forthcoming, whereas in the case of the Applicant, he did not dismiss the matter when all the witnesses were not present and therefore Achilles was inconsistent with the rules.

35. Achilles responded that on the day of the Stoffels hearing, Mr Mbalo raises a point in limine to the fact that the presiding officer allowed the Respondent time to look for their witness and when they still return without their witness, he had no choice but to dismiss the matter on the basis that the Western Cape Education Department was not able to prove its case. In the Applicant’s case, the victim was not ready to testify and he could therefore not dismiss the matter on the strength of the victim’s state of readiness.

36. He said with the Stoffels case, it was only the evidence of the principle and with the absence of the main witness’ evidence it would have amounts to hearsay evidence. The Applicant’s matter however; was overwhelmed with evidence from witnesses that was present when the incident happened.

37. He further testified that he found the Applicant guilty on the basis that the words uttered to the learner impacted on him negatively because the learner did not come back to school or write the June 2018 examination. He had to look at the best interest of the child and the seriousness of the misconduct committed by the Applicant.

THE APPLICANT’S EVIDENCE

38. The Applicant testified under oath and confirmed that she was dismissed for misconduct. She denied having uttered the words to the learner, Renaldo Mostert. She was one of the most popular teachers at the school and her relationship with the learners and fellow teachers were generally good and her academic record speaks for itself. She had a pass rate of 100% for the past ten years. However; she does not have a good relationship with the Principal and she got the impression that she might have been a threat to the Principal. She said that he also have no good relationship with her husband who teaches at the same school. At some point, the Principal encouraged a learner and parent to accuse her husband of racism and further stir them to lay charges of racism against her husband.

39. The Applicant explained what had happened on the day in question. She said that she was made aware of the accusations against her in June 2018 while she was coordinator of the School Based Assessment team (SBS) when the school psychologist visited the school and while making small talks, the psychologist then said to her she don’t know whether to tell her yet, but the Principle, Renaldo Mostert, his grandmother as well as the biological mother was at the district office and she heard from the grandmother that Renaldo wants to come back to school and she then asked her whether she knew she was charged for misconduct by directing unbecoming words to the learner. She said by that time she did not receive any charge sheet. She later also heard Ms Fortuin talked about it as a rumor that was doing the rounds at the nearby shop.

40. She said the incident happened on a Friday and the Principal was not at the school for the week, during which Mr Anthony Deelo; a fellow teacher was given power of authority in the absence of the Principal. She said when she came out of the administration department, a group of learners were standing with Ms Steenkamp when Steenkamp said to her “kan jy hoor hoe ombeskof is Renaldo met haar” (My translation) ‘can you hear how rude is Renaldo with her’. She then asked ‘who is Renaldo’ while the learners walked off in the direction of the toilets. Steenkamp responded to her, “die een met die skeel oog, daai skeel gat, dis hoekom hy so dom is”. (My translation) ‘The one with the skewed eye, that squinted ass that’s why he is so dumb’. She said after she heard the rumors she confronted the Principal with the question as to why he did not inform her about the accusations against her and the short response was that the parents did not want to talk to her.

41. She said on the day of the incident, Ms Pick was nowhere near the scene of the incident and only joined them later while Chad Morris, Hendrico Stuurman and Leroy Herman was standing on the stairs. The Applicant also denies having uttered words such as “Renaldo who said that her husband chased him out of his class” she never spoke about her husband. She said at another time she saw Renaldo in the foyer and confronted him. His response was “nee wag juffrou, ek nie vir jou nie”. The Applicant read into the record page 21 in the Respondent’s bundle of documents and explains that the letter which was written by Ms Steenkamp implies that her husband was involved in interfering with the investigation. She said she don’t know the learners because she did not give class to them. Steenkamp know them very well because she was giving them classes.

42. She said the learner was a subject matter of discipline by the School Governing Body (SGB). She also said that the learner was not a drop out in 2018 as suggested by her representative; he only drops out of school in 2019. The Applicant however explains the legal process to be followed when learners dropped out from school as follows: When the learner was absent for three days, the class teacher must contact the parent to discuss the matter. When the learner was absent for ten days, the learner must be deregister. In this particular instance, the learner (Renaldo) left school but came back in the third quarter which she believes, his only purpose was for this case and to destroy her.

43. During cross examination, the Applicant was asked to confirm whether at the time of the incident, the learner was a student at the school and that he was not deregister. She replied that he was a student at the school at the time. The Applicant also confirmed that there were two instances where she may have been in face to face contact with the learner. She explains what happened on the day of the incident; the first incident. On this particular day; Friday 25 May 2018, Steenkamp was standing outside the administration department, having conversation with the learners, including Renaldo Mostert. It was the time when the siren went off for the changing of classes and this particular class was coming to her for the last class. She came to the office to fetch paper and when she came out of the administration department, she was called by Steenkamp who said to her whether she could see how rude Renaldo was with her. She then asked who Renaldo was because as she approached, the learners walked away. Steenkamp responded to her, “dai skeelgat, dis hoekom hy so dom is”. She said she did not know the learners who were there, but the learners that were there, was Chad Morris, Hendrico Stuurman, Renaldo Mostert, Jaydene Morris and Leroy Herman.

44. She proceeded to explain the second incident of contact with the learner as follows: She started by saying that she would not describe this contact as an incident but merely an event. She said that after a while when she heard the rumors doing the rounds on the school premises that she was going to be charged for misconduct. She again on that day stood with Steenkamp outside the administration department when the learner, Renaldo Mostert was also there. She asked Steenkamp whether this was Renaldo Mostert and when she confirmed that it was him, she asked him why he made stories about her. Renaldo’s response was “nee wag juffrou ek ken jou nie eers nie, dit was juffrou Steenkamp wat gese het ek (Renaldo) was n skeelgat en dat ek dom is”. She said nothing when Steenkamp uttered these words.

45. It was put to the Applicant that her version does not make sense because Steenkamp’s evidence is that she confiscated a cellular phone from Leroy Herman and because it was not Renaldo Mostert’s cellular phone, he does not have a reason to be rude to Ms Steenkamp. The Applicant responded that she would not insult the learner out of the blue. She was then referred to her previous disciplinary record when she was charged with making racist remarks for which she was found guilty of and a sanction was imposed thereby implying that she has a tendency of making unbecoming remarks. The Applicant responded that the learner has made up that story against her. It was further put to the Applicant that as her version of the events changes, there are three witnesses that testified in her presence, but she has failed to put her different version to them. She responded that she did not know that she was allowed to put her version and make their versions off as lies. The Applicant also denied having phoned Steenkamp while she was on sick leave and asked her to get the parents to withdraw the case. She also denied having asked Steenkamp at the netball game to take the matter on her because she (Applicant already has a disciplinary record) she said that they are working together every day, why would she phone Steenkamp. It was put to her that she did not put this version to Steenkamp when she was there to testify. She said she could not recall having phoned Steenkamp while she on sick leave, however; if she would have phoned her, it might have been with for work purposes. She also did not say a word to Steenkamp when they were at the netball game.

46. The Applicant confirmed that Renaldo Mostert has a skewed eye. It was also put to the Applicant that the Respondent’s witnesses; Menissa Carolus who subsequently deceased, Ronel Mostert, the biological mother to Renaldo Mostert and Sanna Mostert, the grandmother to Renaldo, testified at the disciplinary hearing that the Applicant was at their house to ask them to withdraw the case. The Applicant also confirmed that she was there with the pastor and his wife but said that Suster Mostert asked the pastor to come to her house. She said when she was at their house; she also took Carmen Saaiman, the head of the caretakers at the school with her as a witness because she was afraid that they might say that she was interfering in the investigation.

47. It was put to the Applicant that Ms Pick and Steenkamp gave good reports of her about their relationship; 23 years with Pick and 33 years with Steenkamp. What would Pick gain from making up a story against her, She responded that it would mean much to Pick as she and the Principal were in cahoots and connived against her. Pick is involved in tender fraud at the school when she attempted to give work to her brother as a caretaker of the school.

48. The Applicant’s witness, Jaydene Morris (“Jaydene”) testified under oath that she was present on the day of the incident. She was still in grade nine at the time of the incident. She explains her version of the events as follows: She was at the water tap to drink water and saw the Applicant walking down the stairs from her class that is upstairs. The Applicant went to the office building while Jaydene was on her way back to her class and saw the group of learners, Chad Morris, Renaldo Mostert, Leroy Herman and Hendrico Stuurman was also outside. She heard Steenkamp called the Applicant and said to her “hoor hoe vieslik is die klong”, The Applicant then asked Steenkamp who Renaldo was and Steenkamp responded “dai skeelgat dis hoekom hy so dom is”. She insisted that it was Ms Steenkamp that uttered the words and not the Applicant. She said while she was at the water tap, there was also another girl with her who stood far from the scene of the incident, she could not hear what Steenkamp said it was only her and Chad that heard what was said.

49. During cross examination, Jaydene testified that the ‘boys’ (learners) were standing in a group assembling around Ms Steenkamp when they asked for the cellular phone. Steenkamp did not want to give the cellular phone back to Leroy Herman when they started to swear at Steenkamp. They were issued with letter from Ms Steenkamp to take home, that’s why they were swearing at her. Jaydene testified that Renaldo is not the rude type of learner, he is a quite person. She heard Renaldo swearing at Ms Steenkamp uttering the words “voertsek” while Chad uttered the words “jou p..s”. She also said that at the time of the incident, she did not see Ms Pick around. Jaydene also testified that the learners were bribed by the principal, Mr Titus. No further detail was provided.

50. Hendrico Stuurman (“Stuurman”) testified under oath that he was present on the day of the incident and tells his version as follows: They came from Ms Steenkamp when he heard Ms Steenkamp calling the Applicant and said to her “kyk hoe gaan diie klong aan”. She then said, “dai skeelgat”. He said those words were uttered by Ms Steenkamp and directed at Renaldo Mostert. He said that when the Applicant came from her class down the stairs, she was called by Steenkamp; she did not go into the office. His initial version was that the words were uttered by the Applicant and that was before the principal promised them a lot of things, such as paying

for their studies, they would pass their grade, they would be staying in his house in Knysna every weekend, in order for them to change their version these promises were made in the car while they were travelling together in the Principal’s car to the district office for the disciplinary hearing. The Principal also bought them KFC (Kentucky fried chicken). This happened in the presence of Ms Steenkamp. He also confirmed that he was aware that the Applicant was at Renaldo’s house because Renaldo told him that she was there. He said that he can say with certainty that the exact words used by Steenkamp when she spoke to the Applicant was “kyk hoe vieslik is dai klong”. He also confirmed that Renaldo was a very quiet person and that he is not the rude type of learner.

51. He said that after that the Principal and Ms Steenkamp were abusive towards them in that they were suspended quite often for things they did not do. Stuurman said that it is not true that Renaldo said to Ms Steenkamp “voertsek” it was the rest of them that swore. He said it was Chad Morris who said “voertsek” to Ms Steenkamp and denied the allegations that Chad has uttered the words “jou p…s”. He said that when the incident happened, Jaydene was not present and on that day, she did not speak to them. He also said that the Principal and Mr Vorster said in the class that they want to get rid of the Raubenheimers.

52. Chad Morris (“Morris”) testified under oath that he was one of the learners that were involved and explained that on the day of the incident, they were at Ms Steenkamp’s class to fetch Leroy Herman’s cellular phone. An argument ensued between Herman and Steenkamp during which he (Morris) kicked over her dustbin in her class then he heard Steenkamp saying “waarheen gaan die skeel domgat”. He said it was only he, Hendrico Stuurman, Renaldo Mostert, Jaydene and Ms Pick that was on the scene of the incident. He said he also testified at the disciplinary hearing and that his version at the time was that the words were uttered by the Applicant. He now changed his version stating that the words were uttered by Ms Steenkamp. He did that to tell the truth since he could no longer live with the lies as he was told by the Principal, Mr Titus to say that the words were uttered by Ms Raubenheimer. He also testified that Jaydene was not with them when the incident happened. When asking whether he was lying about Jaydene, he said that he was lying. He could also not remember whether he said Steenkamp’s “p,,s” but he do recall Ms Pick standing at the scene of the incident. He said that the Principal who told them to say that the Applicant uttered these words, also said to him that he want to get rid of the Raubenheimer’s. Morris testified that Renaldo Mostert was not rude on that day. He is not a rude person and he did not swear at Steenkamp and he was also not issued with a letter.

53. Ms Shirley Fortuin (“Fortuin”) testified that she is an Administrative Clerk at the school for 11 years. She knows the Applicant for as long as she worked there. She said the Applicant was innocent. She wrote an email to Mr Vorster on 31 May 2028, asking him to be objective and enter this case with an open mind when dealing with the case. She said when Titus was promoted to the position of Principal, the Applicant congratulated him and pledged her support to him. Since Titus started as the Principal, he started to divide the personnel which was once a very ‘beautiful’ personnel prior to his becoming the Principal. She was not there when the incident happened and could therefore not testify about the incident. She recalls however that the Applicant came to the principal’s office, she asked her to go with her and Pick also joined them when the Applicant asked them to tell the Principal what had happened on the day in question. She said to the Applicant that she would not be in a position to talk about the incident because she was not there. Pick also said, using the “f…k” word, that she know nothing about the incident. She said that in the past Pick also lied and was therefore unreliable. She testified on the relationship between the Applicant and the Principal saying that at times the relationship was not so good. At some point the Applicant asked for her job description which the Principal would not give to her and it went as far as the circuit manager’s intervention in order to get the job description, She also heard in the corridors that Titus have said that he wants to work out the Raubenheimer’s.

54. Ms Carmen Saaiman (“Saaiman”) testified that she is the Head of the Caretakers at the school and worked there since 2005. She supervised all the caretakers, and also responsible for cleaning of class rooms and administration buildings as well. Saaiman explains that on the day of the incident she was busy in the photocopy room busy to make copies when Steenkamp enters the room saying that she was in trouble yet again. She said she said to a learner “hy is n skeelgat” (he has a skewed eye) she responded to her and said “juffrou, julle hoor ook nie, u wee wat het me juffrou Raubenheimer gebeur oor goed wat sy nie eers gese het nie” (mam you guys don’t listen you know what happened to Ms Raubenheimer about things that she did not even say). Steen responded to that, she shouldn’t worry, she knows what to do.

55. She stated that on a different occasion the Applicant spoke to Renaldo Mostert in Ms Pick’s office and asked what stories he made about her, his response was “nee wag juffrou, ek ken jou nie eers nie”. She also testified that on another occasion the Applicant took her with her to the Mostert house upon which the Principal spoke to her saying that he love me so much and whether she knew that if the case turn in the Applicant’s favor that she could lose her job to which she responded that if she were to lose her job, it must be for telling the truth. Then conveyed to her that he know it was Steenkamp that said these words and she wondered that if he knew it was Steenkamp that uttered these words, why all these drama. She said Michael Frans was also present and she asked Michael to repeat what Steenkamp has just said in the presence of two other witnesses.

56. During cross examination, she told Mr Vorster that she wanted to talk to him when he visited the school. She said she was not present when the words was uttered, she only testify what Steenkamp told her. She further confirmed that on another occasion when they were in Ms Pick’s office, the Applicant brought Renaldo Mostert into the office and said he must tell them what he said about her. This was when Renaldo said to her “nee wag juffrou ek ken u nie eers nie”.

ANALYSIS OF EVIDENCE AND ARGUMENT

57. The dismissal is not in dispute. Section 192 (1) of Labour Relations Act 66 of 1995 as amended states that the employee must establish the dismissal first, and in terms of section 192 (2) of the LRA, the onus shifts to the employer to prove the fairness of the dismissal. Both oral and documentary evidence confirms the dismissal and I therefore accordingly find that the Applicant has discharge the onus of proving her dismissal.

58. The procedural fairness of the dismissal is not in dispute. I am therefore required to determine whether the dismissal was substantively fair. The evidence shows that unbecoming and derogatory words were uttered and directed at a learner, Renaldo Mostert. The words that were uttered were.

59. Having heard the evidence of a number of witnesses that were present on that day, witnessing this incident unfolding, were Steenkamp, Pick, Chad Morris, and Hendrico Stuurman; all of them testified that the following words “dai skeelgat en dan is hy nog dom ook” were uttered. The learner, Renaldo Morris did not testify.

60. The evidence shows that especially the learners who were the closest to the scene of the incident, testified at the disciplinary hearing where they all had the same version which was that the Applicant uttered and directed these words at Renaldo Mostert. Having uttered these words, it is common cause that it was directed to Renaldo because all of the witnesses confirmed that Renaldo has a disability in terms of which he is skewed in the one eye.

61. What is of great concern to me is that all the people that testified in the disciplinary hearing in 2018, testified that the words were uttered by the Applicant and two years later (2020) at the arbitration hearing the same witnesses changed their versions to implicate Ms Steenkamp as being the culprit. All of them more or less said at the same time through their testimonies, that they were either bribed or influenced by the Principal in the exact same words. One of the witnesses, Hendrico Stuurman even added that they were abused by the Principal and Ms Steenkamp because they were suspended for minor things. The Applicant’s representative indicated the day prior to the witnesses giving their evidence, he was going to consult with them. Having said that it seems likely and probable that the witnesses may have been coached to suite the Applicant’s case.

62. Further to that, the Applicant, in her own evidence confirmed that she at some point visited the victim’s parents at their house and she even took with her, Ms Carmen Saaiman when she asked them to drop the charges against her. Be that as it may, this evidence was also confirmed by Saaiman. Furthermore, the evidence in this regard also concurs with the evidence led by Steenkamp when she testified that while being off sick after an operation to her shoulder, she received a telephone call from the Applicant asking her to get the parents to drop the case out of fear that she might lose her job since she has already been found guilty for misconduct of a similar nature. She then took it a bit further, that when they attended a netball game, the Applicant yet again attempted to influence the process by asking her to take the matter on herself because she has already a record of a similar nature. The evidence led in this regard indicated that the Applicant was actively involved with trying to influence the complainants to withdraw the complaint against her. Even to go as far as misleading the justice process by asking Steenkamp to take it upon herself. This conduct is not consistent with somebody who honestly wants to defend herself, in fact, this begins to sound desperate. I then find it more probable that these events have played out the way it has been described.

63. I have absolutely no credibility in the evidence led by the learners, especially Jaydene Morris who dealt with the truth economically by the many contradictions she has made such as her standing close enough to hear the whole conversation to be able to hear who said what but she lied when she accused Renaldo Mostert to have uttered the word “voertsek” to Ms Steenkamp. Had that been the case, I have no doubt that Steenkamp would have mentioned it. All of them testified that Renaldo Mostert was not a rude person, some goes as far to say that he did not swear at Steenkamp and on top of that, Renaldo Mostert was not issued with a letter of discipline. He therefore, has no reason to be angry and or rude towards Steenkamp. Both the evidence of Chad Morris and Hendrico Stuurman indicated that Jaydene was not near the incident. Having said that, not even witnesses such as Pick and Steenkamp and the Applicant, mentioned her name to be among those that were present when the incident happened. Had that been the case, Jaydene Morris would have been called to the disciplinary hearing to give an account of what she witnessed on that day. Her name does not even appear in the presiding officer’s report as being a prominent witness that was on the scene with firsthand information. It goes to show that Jaydene Morris was also coached to change her version so as to suite this of the Applicant.

64. I am mindful of the fact that this arbitration hearing is a de novo hearing, but given the nature of the dispute at hand that involves minors, I am bound to look at the evidence in its totality, part of which is the record of the disciplinary hearing where very specific evidence was heard at the disciplinary hearing, which in my view happens very closed to the date of the incident and therefore still fresh in witnesses minds. In here it talks about the Applicant wanting to bribe Leroy Herman by proposing to take him to Spar to buy food for him and he specifically indicated that he got the impression that the Applicant wanted him not to involve him any further with the case as she has felt that the case against her was weak. I also considered the evidence of the Principal stating that after the learner came back to school, he was waiting in the foyer for Steenkamp to place his in a class; the Applicant saw him sitting there and started to confront his about the case to the extent that he had to intervene by getting Steenkamp to quickly deal with the learner before something bad was going to happen. This evidence was never challenged by the Applicant and I draw an inference that there might be a degree of truth in the statement. This all goes to show that the Applicant’s conduct even when she was on the receiving end, seeks to pursuit an opportunity to influence processes which was already underway.

65. Having heard all the evidence I find on a balance of probabilities, that the Applicant was guilty of uttering these words to the learner.

66. As regards the appropriateness of the sanction, I am of the considered view that the events that played off was insulting of a minor; a grade 8 learner with a disability of skewedness in the one eye. This, I have no doubt impacted the learner negatively to such an extent that he did not even write the June examination and as per the records of attendance, was closed to be deregister as a learner. The words was degrading and unbecoming especially if it was directed to a learner at his age who still has to try and work his way through to adult ship. Having been confronted with this reality may well have had severe consequences to the learner and his family. The Children’s Act take into account the best interest of the child, and since the learner was still a child at the time of the incident, ignoring such incident would have been even more severe to the learner. In view of all the circumstances around the substantive fairness of the dismissal, I find that dismissal was an appropriate sanction.

67. In the premise therefore, I make the following award:

AWARD

68. I hereby find that the dismissal of the Applicant, Gaye Ursula Raubenheimer by the Respondent, the Western Cape Education Department was procedurally and substantively fair.

69. The Applicant is not entitled to any relief.

Signature:

Commissioner: Jacobus Simon Du Plessis
Sector: