IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD IN NEWCASTLE

ARBITRATION AWARD

Case Number: ELRC171-23/24 KZN
Commissioner: Protas Cele
Date of Award: 1 September 2024

In the ARBITRATION between

Mavis Nomathemba Zwane

(Union / Applicant)

And

Department of Education KwaZulu Natal

(Respondent)

Union / Employee’s representative : B. Mgaga (Attorney)

Employer’s representative : J. Dumisa (DOE:KZN)

Details of hearing and representation

1. The matter was set down for arbitration at the Department of Education (DOE), Amajuba District Office in Newcastle on 8 April 2024, 18 – 20 June 2024 and 5 – 7 August 2024.

2. The Applicant was represented by Bongani Mgaga, an attorney from Garlicke and Bousfield Inc. and Jabu Dumisa from DOE appeared on behalf of the Respondent.

3. Dumisa produced a bundle of documents which was marked bundle A(A1 – 31) and led the evidence of six witnesses. Mgaga also produced a bundle of documents which was marked bundle B (B1-44) and presented the evidence of three witnesses.

4. The proceedings were conducted in English and isiZulu and digitally recorded. The interpreter was Ntombifikile Ndlovu.

Preliminary issue(s)

5. On 8 April 2024 Mgaga made an application for legal representation on the basis that the Applicant had lost faith and confidence in NATU and its Union official, N.S. Mtolo.

6. Nontobeko Magoso from DOE who was then representing the Respondent objected to legal representation but I concluded that it would be unreasonable to expect the Applicant to deal with the dispute without legal representation.

7. NS Mtolo from NATU had represented the Applicant at the disciplinary hearing and at the Arbitration proceedings which were postponed before 8 April 2024.

8. The matter was postponed on 4 – 5 December 2023 and 25 – 26 January 2024. In December 2023 Mtolo submitted that the Applicant’s son was sick and that she was not in the right frame of mind. In January 2024 he stated that the matter was resolved in principle subject to the approval of the HOD.

9. He consented to a cost order being made against NATU as part of this arbitration award for wasted costs incurred by the ELRC as a result of the postponements on 4 – 5 December 2023 and 25 – 26 January 2024.

Issue(s) to be decided

10. I am required to decide whether or not the dismissal of the Applicant was substantively and procedurally fair, and if it was not, what relief she is entitled to and the quantification thereof.

Background to the dispute

11. The Applicant was employed by the Respondent as an Educator on 1 March 1995 and posted at Osizweni High School at Amajuba District in Newcastle. She earned a basic salary of R35,363.12 per month.

12. The Applicant was dismissed on 31 May 2023 for misconduct, following a disciplinary hearing which was conducted on 20 April 2022, 25 – 26 May 2022 and 21 – 22 July 2022. She thereafter lodged an appeal which was dismissed on 24 April 2023.

13. The charges which led to her dismissal were stated as follows in the charge sheet:

Charge 1

“It is alleged that on 25 February 2019 or 18 July 2019 and 24 July 2019 at Osizweni High School you displayed disrespect towards Mrs BB Mthiyane in that you shouted at her in front of the learners or called her an informer for Ms Jele and pushed her on the stair cases thereby contravened Section 18 (C1)(t) of the Employment of Educators Act 76 of 1998 as amended.”

Charge 2

“It is alleged that in August 2019 at Osizweni High School, you conducted yourself in an improper, disgraceful, or unacceptable manner in that you encouraged a boy learner by the name of Mnqobi to commit an act of sexual assault to a girl learner by the name of Thembeka Thwala. You thereby contravened Section 18 (1)(q) of the Employment of Educators Act 76 of 1998 as amended.”

14. Charge 1 emanated from an investigation report after Mrs Mthiyane, who was also an Educator at Osizweni High School had submitted a written report to the District office on 29 July 2019 of bullying incidents against the Applicant.

15. At the disciplinary hearing which was held on 22 July 2022 the Applicant initially pleaded not guilty to the allegations. The Respondent proceeded to present the evidence of three witnesses after which the Union Official, NS Mtolo, requested for a short adjournment in order to have a brief caucus with the Applicant.

16. When the hearing resumed after the adjournment the Applicant tendered a guilty plea. Her case at the Arbitration hearing was that she was advised by NS Mtolo to plead guilty so that she would receive a disciplinary action short of dismissal based on a plea bargain which he had entered into with the Respondent.

17. The Respondent confirmed that there was a plea bargain but contended that it fell through no sooner had the Applicant decided to plead not guilty at the commencement of the disciplinary hearing.

Survey of evidence and argument.

18. In terms of Section 138(7)(a) of the LRA the Commissioner must issue an arbitration award with brief reasons.

19. Therefore, what follows hereunder is not an exhaustive survey of all the evidence and arguments presented, but a brief summary of the salient issues relevant to my findings only.

Respondent’s evidence

20. Thembeka Thwala was a learner at Osizweni High School. She testified that she was doing grade 9 in 2019 and that Mnqobi Njoko was a fellow learner and her boyfriend.

21. In August 2019 the Applicant found them kissing in the spare classroom whereupon she instructed them to follow her. They thought she was taking them to the staff room to give them punishment.

22. When they entered the admin block instead of going to the staff room she led them to the female staff toilet. Once they were in the toilet, she told her to lift her right leg up and put it on the hand wash sink so that Mnqobi could touch her private part.

23. After she put her leg on top of the sink Mnqobi refused to touch her private part. She still had her leg on the sink when Ms Guliwe entered the toilet and went into one of the two toilet rooms.

24. After a short while Ms Guliwe exited the toilet whereupon the Applicant told Mnqobi that she (Thembeka) is HIV positive and that she committed abortions. Mis Ndlovu also entered the toilet before the Applicant took them to the staffroom.

25. In the staff room she took photos of both of them and told her that she was doing that in case she denied later that the incident took place because she is a twin sister.

26. There were other educators in the staff room and when the Applicant told them about what she found them doing in the spare classroom they all started to laugh. She did not however tell the educators about the toilet incident.

27. She stated that the Applicant then instructed them to come with their parents on the following day. Mnqobi came with his parent and the matter was discussed between the parent and the Applicant and was resolved.

28. She did not come with a parent because her mother was supposed to go to work and she was also afraid to tell her. The Applicant then came to the classroom, took her school bag, escorted her out of the school premises and told her that she must come back with a parent.

29. On the following day she came with her mother and the Applicant spoke to them after the assembly. She told her mother about what they were doing in the spare classroom but she did not tell her about what happened in the toilet. After the meeting the Applicant told her to go back home with her mother because she was not ready to attend school.

30. She stayed at home for a while until the Principal, Mr Nkutha, called her mother and told her that she must come back to school. She returned to school only to write the exams because it was already time for school exams.

31. She stated that the toilet incident left her traumatised because the Applicant told other educators and learners about her. After that the learners referred to her as a girl who plays “touch” with the boys. She was not even wearing a tight on that day but only her underwear.

32. During cross-examination she stated that in 2019 she was 14 years old and that currently she is 19 years of age. She knows Mrs Zuma and Mrs Gasa. Both of them were educators at Osizweni High School.

33. She did not tell her mother why she was asked to come to the school. She has since not told her about the toilet incident because she was afraid. When she tried to tell her after they had come back from the school, her mother started to beat her up and said that she would not listen to anything from her.

34. It was only after the inspectors had come to the school to speak to her that her mother knew about the incident. After she told the inspectors from the District Office and the Principal about what happened in the toilet, the Principal thereafter told her mother about the incident. After the meeting with the inspectors Mrs Jele also called her from the classroom and asked her about the toilet incident at the office.

35. When it was put to her that at the disciplinary hearing on 22 July 2022, she stated that she was 15 years old (A22) and that she cannot therefore be 19 years old in 2024, she disputed that she said that she was 18 years old.

36. She stated that she was born on 4 April 2005 and that she did not have her Identify document with her at the time to verify her date of birth.

37. She disputed that her mother came to the school on 15 August 2019 and that instead Mrs Gasa attended to her and not the Applicant. She confirmed that her mother said that she would not tell her father because she knew how he would react.

38. She also confirmed that apart from Ms Guliwe and Ms Ndlovu, Mrs Zuma was also in the toilet. She was coming out of the toilet when they were entering and the Applicant told her to come back to see what she found them doing.

39. She disputed that there were other learners in the spare classroom. She stated that when the Applicant came, she was leaning against the wall next to the window. Mnqobi was holding her around the waist as they were kissing each other. The door was open but she initially did not see the Applicant but it was Mnqobi who saw her first because he was facing the door.

40. She disputed that Mnqobi was also pulling up her skirt (A22 par 9.26) and conceded that she did not mention anything about kissing at the disciplinary hearing. She stated that she was afraid and shy to mention it. She further disputed that she said that the Applicant instructed Mnqobi to touch her thighs instead of her private part (A22 par 9.27). She stated that if that was the case there would have been no need for her to put her leg on the sink.

41. She also disputed that the Applicant told them to wait in the admin block while she went back to the classroom to finish her period and also that Mnqobi did not enter the toilet.

42. Mnqobi Njoko was also a learner at Osizweni High School. He testified and corroborated the evidence of Thembeka with regard to the incident in the spare classroom and the incident in the female staff toilet.

43. He stated that he was doing grade 9 in August 2019 at Osizweni High School. He was 17 years old at the time and he is currently 21 years of age. He knows the Applicant from school and Thembeka Thwala was his girlfriend.

44. The Applicant found both of them in one of the unused class rooms kissing. She asked them about what they were doing and when they did not respond. She asked them to follow her. They thought they were going to be punished but when she entered the reception area she proceeded to the female staff toilet.

45. She then called Ms Zuma who was leaving the toilet to come and see what they were doing. Thereafter she instructed Thembeka to put her leg on the sink so that he could touch her private part.

46. Both the Applicant and Ms Zuma reprimanded him for touching girls who are HIV positive and who commit abortions. After Ms Zuma had left the toilet Mrs Hadebe, Mrs Gasa and Ms Ndlovu also entered the toilet.

47. The Applicant then took both of them to the staff room and took pictures of them before she told him to go to the classroom to fetch his bag and wait for Mr Mthembu to get a letter for his parents.

48. After that Mr Mthembu took his school bag and issued him with a letter to come with his parents on the following day. He came with his sister on the following day to the school whereupon the Applicant and Mrs Gasa told his sister that he goes around the school touching girls who have HIV and who commit abortions. The Applicant did not tell his sister about the toilet incident.

49. After their meeting the Applicant took him to Mr Mthembu to fetch his bag and told him to return to class. He did not receive any punishment as a result of the incident i.e. in the spare classroom.

50. He stated that after that he did not feel comfortable and safe at the school anymore and he decided to carry a knife. Other boy learners were threatening to beat him up because the Applicant told Ms Gumede about the incident who then made comments about him touching the girls’ private parts.

51. He did not tell his parents about the incidents in the spare classroom and in the toilet but he spoke to his sister about the incident in the spare classroom. Two inspectors also spoke to him about the incident and one of them was Mr Nkosi.

52. On one occasion the Principal also came to his class looking for him and told him that there was a rape case against him.

53. On another occasion he was at home in the morning and eating before he went to the school to write exams during midday. He then received a call from Buyani from the SAPS who told him that he must come to the school urgently with regard to Thembeka’s alleged rape allegations.

54. He went to the school but he did not find Buyani. He then spoke to the Applicant to find out how this came about. She told him that she was not aware but he must just relax.

55. He stated that there was no criminal case opened against him and that he did not ask Thembeka if she laid any criminal charges against him.

56. During cross-examination when it was put to him that when the Applicant came into the spare classroom, she found them behind the door, he disputed that there was a door.

57. He stated that Ms Zuma was coming from class and entering the staff room when the Applicant called her. In the toilet there was a sink and two toilet rooms. He did not see the 2nd sink and if it was there, it could have been behind him.

58. The sink was high and the Applicant grabbed Thembeka’s left leg and put it on top of the sink. She then told Ms Zuma that he was touching Thembeka’s private part and told them to continue with what she found them doing in the spare classroom.

59. When he refused to touch Thembeka’s private part they started to reprimand him. He stated that the incident lasted for about 10 minutes before the Applicant took them to the staff room. He only sat on the bench outside the reception area when he was waiting for the letter to take to his parents.

60. He denied that he was sitting with Thembeka on the bench when Mrs Gumede was approaching the staff room after her last period. He further denied that he told her (Gumede) that his hand was found in the wrong place, in the bloomers or panty.

61. Sibongile Guliwe was an HOD for Technology and Creative Arts at Osizweni High School. She was subpoenaed by the Respondent to come and testify at the arbitration hearing.

62. She testified that on the day of the incident when she entered the female staff toilet, she heard the Applicant shouting on the top of her voice. The Applicant was with a boy learner, a girl learner and another educator.

63. The Applicant was shouting in isiZulu and saying (Ntombazane ngithi beka umlenze nenze lento enginifice niyenza,” translated to mean, “girl I say put your leg and do what I found you doing.”

64. She was shocked and the girl learner had her leg on the sink. The Applicant then explained to her about what was happening. She explained that after that she (Guliwe) turned to the learners and told them that she had been warning them for a long time not to dodge class.

65. She then went to the toilet room and then exited the toilet. She proceeded to learner support, Ms Ntombifikile Ndlovu and told her to rush to the toilet because the Applicant was instructing learners to violate each other.

66. The other educator who was in the toilet was Ms Zuma who was quiet and visibly shocked. She stated that she personally could not intervene because the Applicant was not recognising her as HOD and that she had reported the matter to the inspectors.

67. During cross-examination she stated that the Applicant told her that she found the learners in the classroom. The girl had her leg on the desk and the boy was putting his finger in her private part.

68. She admitted that she was not in good terms with the Applicant and re-iterated that she was not recognising her as the HOD. She stated that she was not aware that there were two camps of female educators.

69. She stated that the Applicant was interrupting her in her duties. At the parents’ meeting in the library, she came and caused a disturbance by starting to peruse the stationery. In another incident she was with Ms Jele at the office when the Applicant came and laughed before she kicked a box of tippex.

70. When the Acting Principal, Mr Nkutha heard about this and suggested to intervene and assist them to reconcile she already had enough and she told him that the is leaving the Applicant to God.

71. She was not aware of the grievance lodged by Mrs Mthiyane in July 2019 against the Applicant but she knew that there were other educators who were not in good terms with the Applicant.

72. She did not see Thembeka lifting her leg. She only saw when the leg was already on the sink. She could not recall if she put her leg on the sink before or after she entered the toilet. She stated that after she told Ms Ndlovu about what she saw in the toilet inspectors came to the school and asked her about the incident.

73. Bonisiwe Barbara Mthiyane was an English Teacher at Osizweni high School, she testified that charge 1 levelled against the Applicant emanated from the incidents between her and the Applicant. The Applicant had shouted at her in front of the learners, called her an informer for Ms Jele and pushed her on the staircases.

74. The Applicant was charged after she had laid a formal complaint against her of bullying incidents (B38). The first incident was in March 2013. It was her first day at Osizweni High School after a cross transfer from Siyamukela High School.

75. She was using the microwave to warm her food during the break at 10h40. The Applicant rebuked her for warming her food first before the old staff members could use the microwave, being a newcomer. The Applicant also claimed that she did not even know who bought the microwave.

76. The second incident was on 25 February 2019 at 07h55. She had requested from the HOD for her grade 12(c) learners to be excused from attending the assembly since they would be writing a formal assessment task. She made the request because there was a tendency of dragging the morning assembly which compromised the time for teaching.

77. Some learners were still not in class despite of having been informed. She then went to the assembly to call them to class. Mrs Kubheka was still gathering the learners when she asked her learners to go to class. Mrs Kubheka shouted at her and demanded the learners to go back to the assembly.

78. The learners were confused and ended up not knowing who to listen to. After the assessment she went to the staff room whereupon the Applicant put her hands on her waist and said to her “Hey you Siwe, why are you disrespecting us.”

79. The Applicant further said that they did not even know why she left her former school. She explained that this was a painful reminder of the past that made her to request for a transfer from the previous school.

80. She stated that thereafter the Applicant continued to pass hurtful remarks calling her a traitor, a spy, a Jockey or underwear of Ms Jele (HOD) every time she (Mthiyane) entered the staff room. She would use these phrases in isiZulu, “omaphentane baka Ms Jele, Jockey ezomthanqaza.”

81. She then decided to move from the staff room to the Science Laboratory to work with Ms Ngubo. She reported all this to the deputy Principal and the Principal but no action was taken.

82. During the third incident on 18 July 2019 Ms Gumede invited her to the staff room to share lunch with her. She used to sit with Ms Gumede in the staff room and share lunch before she moved to the Science Laboratory. On this occasion Ms Gumede had bought Nandos.

83. She explained that when she entered the staff room the Applicant started to sing a song mockingly insinuating that she can go but she will eventually come back because of starvation.

84. The last incident was on 24 July 2019. She was standing with Ms Gumede on the staircases. The Applicant came and intentionally bumped her so that she literally staggered and balanced herself. She then stood in front of her, put her hands on her waist and provokingly looked straight into her eyes seemingly inviting for a comment.

85. She stated that after this incident she called Mr Nkutha, deputy principal who was Acting Principal. She also called Mrs Masondo, Ward Manager who said that she must write a formal report / complaint against the Applicant.

86. After she had moved to the Science Laboratory to work with Ms Ngubo, Ngcobo came to the laboratory in tears on one occasion. She told her that she had always been complaining about classrooms that were not locked and had no doors.

87. She was shocked when Ngubo further told her that the Applicant had taken the learners to the toilet and instructed them to violate each other. Ngobo also told her that the Applicant had apparently found the learners in a spare classroom and then took them to the toilet and told them to continue with what she found them doing. She stated that she was shocked and then told the HOD, Ms Jerle about the incident.

88. During cross-examination she stated that Ms Ngubo told her that the learners were found kissing in the classroom. The Applicant then took them to the toilet and told the boy learner to touch the girl learner’s private part.

89. She told Ms Jele about the incident because she was an HOD. She did not tell the Principal because she was not lodging a complaint. She did not tell the investigators about the incident either. Ms Ngubo has since resigned. She saw her in December 2023 at La Lucia Mall in Durban but they only greeted each other.

90. She stated that Ms Ngubo was told by the girl leaner about the incident as a class teacher. She was a class teacher in grade 9 and a subject teacher in grade 10. She disputed that Ms Zuma was Thembeka’s class teacher.

91. She conceded that there were groups or camps of educators at the school. The Applicant, Ms Kubheka, Mrs Mazibuko, Ms Thwala and Ms Hadebe ended up being one big group. On the other hand, it was Ms Jele and her. Initially she and Ms Gumede were close but she later crossed the floor to the other group.

92. She did not recall Ms Gumede saying, “There you go again,” when she (Mthiyane) told her that she was pushed by the Applicant, meaning that she did not agree with her. She confirmed that she and Ms Jele felt that the Acting Principal, Mr Nkutha, was lenient or favouring the other group.

93. She stated that she is aware that Ms Jele also lodged a grievance against Mr Nkutha and that an investigation was conducted which led to a number of educators being charged.

94. She disputed that the Applicant was already on the podium when she came to call her learners from the assembly. There was no roster for conducting the assembly and Ms Jele could not have told the Applicant about her request. She conceded that the Applicant conducted the assembly most of the time.

95. She re-iterated that the Applicant called her all sorts of names including a cat, informer and a spy. It all started after the educators for languages had held a meeting. She was not present at this meeting. After the meeting Mrs Mazibuko told her that the educators were not happy with Ms Jele and they asked her (Mazibuko) to request her (Mthiyane) to speak to Ms Jele to loosen up.

96. She stated that it was ironical that after she spoke to Ms Jele, she was labelled a spy. She disputed that the Applicant did not push her and that she suddenly screamed for no reason when she saw the Applicant walking down the stairs.

97. Busisiwe Tricia Jele was an HOD for languages isiZulu and English at Osizweni High School. She testified that the Applicant was under her supervision.

98. They did not have a good relationship and she was subjected to disrespect, non-compliance and humiliation on a daily basis. She wrote a written complaint to the Department against the Acting Principal, Mr Nkutha, because he was not protecting her.

99. Mr Nkutha would approve a duty load and subsequently change it when the Applicant went to him and complained. On one occasion scripts were captured when she had not even seen them as HOD. On another occasion the Applicant conducted a test without bringing it to her for moderation.

100. There were several incidents including one during which she refused to take the work load of a teacher who was on sick leave. In another incident she came to her office (Jele) which she was sharing with Mrs Guliwe and pushed a box full of paper with her feet.

101. She stated that she was aware that Mrs Mthiyane’s learners would not attend the assembly because they were going to write an assessment. Mrs Mthiyane approached her and requested for the learners to be excused and she consented.

102. She was also aware that Mrs Mthiyane would be working from the science laboratory with Ms Ngubo because she told her that she would be leaving the staff room since she was bullied by the Applicant, Mrs Kubheka and Ms Hadebe.

103. Ms Nqobo was disgusted about the toilet incident because she was Thembeka’s class teacher. Ms Nqobo then told Mrs Mthiyane about the incident and Mrs Mthiyane thereafter told her about what Ms Nqobo had said about the incident.

104. She stated that she then wrote a letter to the Department which was followed by an investigation into the matter. She was the first one to be called by the investigators and she told them about the abuse she was subjected to.

105. She told them that the Applicant was doing as she pleased. In one incident she brought cricket/fireworks to the school and set them off whilst grade 12 was writing paper 3. She also told them that the Applicant took the learners to the toilet.

106. She stated that the Applicant would always say that she is not scared of anyone. She explained the Applicant was supposed to report the incident involving the learners to the Principal who would then call the parents to the school.

107. During cross-examination she confirmed that she applied when the HOD position became vacant and was advertised. The Applicant was a panellist and she (Jele) was initially not successful. She stated that she was interviewed by the district and not by the SGB.

108. When it was put to her that educators were divided into two groups, she stated that there were only four educators who were subjecting her to abuse i.e. the Applicant, Mrs Kubheka, Mrs Mazibuko and Ms Hadebe.

109. She confirmed that the Applicant was dismissed and that other educators were transferred as a PPN process. The school Management team i.e. Principal, Deputy Principal and HOD would select or recommend candidates for the Post Provisioning Norm.

110. She admitted that Mrs Kubheka was selected for PPN but she disputed that she was one of the longest serving educators at Osizweni High School. She confirmed that Ms Hadebe was also selected for PPN because of excess in English and that Mrs Mazibuko retired. She stated that Mrs Gumede failed dismally because she got them only 35% in physical science. Another educator was found to replace her who gave them 75%.

111. She conceded that Miss Mthiyane survived although she was the newest. She stated that Miss Mthiyane was more experienced than Miss Hadebe who only started teaching English at Osizweni after a transfer from another school where she taught Physical Science.

112. She stated that she was interviewed by the investigators about the toilet incident. She however did not have all the details until she was at the disciplinary hearing. Before she spoke to the investigators, she did speak to Thembeka but not about the details.

113. She stated that Ms Guliwe and Ms Ndlovu also told her about the incident. She denied that Miss Mthiyane told her about the sink, the leg and the instruction to the learners nor did she tell her how Ms Ngubo came to know about it.

114. She conceded that it would appear to be improper to other educators seeing Mrs Mthiyane pulling learners away from the assembly because they were not told or explained to.

115. She disputed that the incidents in the spare class room and in the toilet are a fabrication spearheaded by herself and Mrs Mthiyane for the Applicant to be dismissed.

116. Nokuthula Samukelisiwe Zethembiso Nxumalo is the Assistant Director, ER, and she chaired the disciplinary hearing of the Applicant. On 21 July 2022. She testified that the Applicant was served with the notice of the hearing and the charge sheet (A11).

117. At the hearing she was represented by Mr Mtolo from NATU. She initially pleaded not guilty to the allegations whereupon the Respondent presented the evidence of Mrs Mthiyane, Ms Jele and Thembeka, the girl learner.

118. Mr Mtolo then requested for a short adjournment after which he indicated that the Applicant wanted to change her plea. The Applicant confirmed her instructions to Mr Mtolo and the charges were once again put before her and this time she pleaded guilty to both charges (A23).

119. She stated that the parties were then directed to submit mitigating and aggravating factors on or before 2 August 2022. On 5 August 2022 the sanction of dismissal was imposed on the Applicant (A28 – 29).

120. She appealed against the decision but the appeal was dismissed by the MEC on 24 April 2023 (A30). She stated that the sanction of dismissal was imposed because of the seriousness of the allegations. She explained that it was never indicated to her that there was a plea bargain between the parties nor did the Applicant indicate that she was forced to change her plea.

121. During cross-examination she confirmed that Thembeka Thwala said that she was 18 years old when she was testifying at the disciplinary hearings on 21 July 2022. Since she was not from a special school there was no requirement for an intermediary.

122. She could not recall if Mr Mtolo from NATU told her that they wanted to speak to the Respondent about a plea bargain during the adjournment. She also confirmed that the charges against the Applicant fell under the category of sanctions which could be less but not necessarily exclude dismissal.

Applicant’s evidence

123. Mavis Nomathemba Zwane was an educator at Osizweni High School. She testified that at the time of the dismissal she had 28 years of service with the Respondent and that she had a clean disciplinary record.

124. She stated that on 14 August 2019 she proceeded from the staff room to grade 9 (c) class for her isiZulu lesson. When she started teaching, she heard a noise from one of the two adjacent empty classrooms. These classrooms were not used and the learners would occupy them when they were dodging classes.

125. She then left her class to go and investigate. She noticed that the noise was coming from the classroom which was next to grade 9 (c) class. The door was open and she stood in the doorway and told the learners who were inside to leave because they were interrupting her.

126. The learners left the classroom and the last learner to exit the classroom peeped behind the door and started to laugh before he/she walked out. She could not recall if it was a boy or a girl learner. She became curious and stepped inside the classroom and looked behind the door.

127. Thembeka emerged from behind the door followed by a boy learner. When she asked Thembeka why she was not in class and also asked both of them what they were doing behind the door she did not get a response.

128. She then told them to take their books and wait for her at the admin block. She did not see what they were doing behind the door. She explained that she thereafter went back to finish her period whereupon she went to the admin block where both of them were sitting on the bench and waiting for her. She then told Thembeka to come with her to the female staff toilet.

129. She thought Thembeka would explain privately about what was happening in the classroom. Ms Zuma entered the toilet and asked what the learner was doing there and she told Zuma that she found her in the classroom and that she wanted to know what she was doing.

130. Thembeka did not respond to her question and then Zuma said to Thembeka “Wele”, translated to mean “twin”, “I don’t know what is going to work with your class”.

131. Ms Guliwe also came into the toilet and exited. She stated that she then told Thembeka to go to the staff room and wait for her while she went to the bench to speak to the boy learner who told her that his name is Mnqobi Njokwe from grade 9 (a).

132. He did not tell her either about what they were doing behind the door. She then took him to the staff room and told both of them to come with their parents on the following day.

133. On the next day after her first period, she met Ms Gasa as she entered the admin block. Gasa introduced her to a lady and said that she is Thembeka’s mother. She also told her that she took over the matter and discussed it with the lady. She then told the lady that she (Applicant) is the one who found Thembeka hiding in the classroom.

134. She explained that she then requested Gasa to also attend to Mnqobi’s parents when they came. When she later asked if they came Gasa confirmed that Mnqobi came with his sister. She stated that she never heard any further about the matter.

135. She testified that she knew Thembeka and her twin sister from the netball team. The toilet incident was all about the post of HOD. Ms Jele was not successful when the post was first advertised and she (Jele) knew that she (Applicant) was a teacher component in the SGB. The incident was a fabrication by Ms Mthiyane and Ms Jele because she was part of the SGB.

136. The relationship between her and Ms Jele was not good. Firstly, Jele did not get the opportunity to act in the position. When she was eventually appointed to the post, she started to be vengeful.

137. Regarding the assembly incident she testified that she was already on the podium and the learners were singing. Ms Zuma and Mrs Kubheka were gathering other learners when Ms Mthiyane came and spoke to some of the learners after which they left the assembly.

138. She stated that after the assembly she went to the staffroom whereupon Ms Mthiyane came after her first period. She then asked Mthiyane why she disrespected them by pulling learners from the assembly. Mthiyane told her to get out of her class. She explained that this upset her and she told Mthiyane that she was wondering why she left her former school.

139. With regard to the stair case incident, she testified that she was coming from class when Ms Gumede Sithole and Ms Mthiyane were chatting at the stair cases. Ms Mthiyane was standing on the third staircase and Ms Gumede Sithole was standing on the ground.

140. She stated that she walked down the staircases past them and then heard Ms Mthiyane shouting and asking why she pushed her. She shouted again and asked Gumede if she saw this woman (Applicant) pushing her.

141. She explained that she proceeded to the staff room to check for the learners she had sent to fetch text books. When she came back, she saw the two educators walking towards their respective class rooms. She did not respond when Ms Mthiyane was shouting.

142. On the next day she was called to the office where she found the whole school management team and others from the Branch Executive committee of SADTU. From the school management team there was Ms Jele, Ms Guliwe, Mr Nkutha (Acting Principal), Mr Mthembu (Deputy Principal), Ms Hadebe and Ms Mthiyane.

143. Nkutha explained to her that on the previous day Ms Mthiyane had called him and SADTU about the incident on the stair cases and invited her response. She proceeded to explain her side of the story at the meeting.

144. Thereafter one of the branch committee members said that the matter did not warrant their involvement because it was about human relations at the school and suggested that the Principal and the HOD should resolve the matter.

145. Regarding the incident in the staff room, she testified that she did not call Ms Mthiyane names as it was claimed. She did not bang the table and call Ms Mthiyane a snitch, “impimpi”.

146. She testified that on the morning of the disciplinary hearing her Union Official, Mr Mtolo told her that the charges were serious. He then advised her to plead guilty in order to save her job. He told her that if she pleaded guilty, she would be suspended for one month without pay but if she pleaded not guilty she would be dismissed.

147. She told Mtolo that she was curious to hear the learner’s testimony first. She initially pleaded not guilty but after Ms Mthiyane, Ms Jele and the learner had testified she pleaded guilty to the allegations. She changed her plea because Mtolo also told her that the law would favour the learner.

148. She stated that she was not aware of her dismissal until 15 January 2023 when she did not receive her salary. When she called Mtolo after she obtained confirmation of her dismissal from the District Office, he told her that he had appealed against the decision.

149. She asked to be re-instated to her former position at Osizweni High School because she lives at Osizweni township. She would not mind being transferred to another school as long as it would not be far from the township.

150. During cross-examination she confirmed that she received the notice of the hearing and that all her rights were explained to her. She also confirmed that Mtolo was from NATU, a Union of her choice.

151. She disputed that the toilet incident took place and stated that it was a fabrication. Ms Jele and Mrs Mthiyane used the learners so that she could be dismissed.

152. She conceded that she did not ask all the learners who were in the spare classroom what they were doing there instead of being in their classes.

153. She stated that Thembeka was supposed to be in her class and she suspected that the boy learner dragged her behind the door and that is why she wanted to probe further.

154. She denied that she asked Thembeka and Mnqobi to follow her because she was also not in class. She also conceded that no one gave her the authority to invite their parents to the school.

155. She disputed that she told Thembeka’s mother that Thembeka must go back home because she was not ready to attend school. She also denied that she made utterances about Thembeka’s HIV status and abortions and that Mnqobi was touching wrong girls who were on treatment for HIV.

156. She admitted that she said that others would cry when the post of HOD was first advertised and educators applied. She did not see anything wrong with this. She confirmed that she was in the interview committee and scoring.

157. She was not bothered by the fact that Ms Jele was eventually appointed to the post after the independent panel had taken over the interview process because of problems in the SGB.

158. She disputed that she was in the staff room drinking tea when the assembly started. She also disputed that she shouted at Ms Mthiyane for warming food in the microwave.

159. She also stated that her relationship with Guliwe was not good. Guliwe said that they were jealous of her after she became HOD, left the staff room and went to work at Ms Jele’s office.

160. She denied that she took both learners to the toilet and instructed them to violate each other. She also denied that she bumped Ms Mthiyane with her shoulder. She further denied that she called her a snitch.

161. Nontando Gumede was also an educator at Osizweni High School from February 2015 until March 2023. She testified that in 2019 she was teaching Natural Science in grade 9 and Physical Science in grade 10, 11 and 12.

162. She stated that she was present when the incident took place on the stair cases. Ms Mthiyane was coming from her office and she was coming from the staffroom. Both of them were proceeding to their class rooms. Mthiyane was walking slightly behind her.

163. At the stair cases she turned left to proceed to her grade 12 class. She did not climb the stair cases. Mthiyane was following her and she climbed the stair cases to go to her class. Mthiyane then stopped her as she was walking on the ground to her class. (She) Mthiyane was already on the 3rd stair case.

164. After stopping her she then apologised about an issue which they had on the previous week. She explained that the issue was about a request she had made to Mthiyane to cook at her wedding but she declined.

165. They were still having a conversation about this issue when the Applicant came from her classroom and walked down the stairs. Mthiyane then said to her “do you see this woman pushing me.” She (Mthiyane) then shouted at the Applicant and asked her why she pushed her.

166. She stated that she then said to Mthiyane “there you go again” (usuqalile futhi) and told her to stop, she explained that Mthiyane was used to being an aggressor and fabricate things, the Applicant did not push her.

167. Regarding the toilet incident she testified that on the day of the incident she was at grade 9 (A) class and the Applicant was at grade 9 (c) class. There was one class room between their classes. From her class she heard the Applicant telling the learners to go and wait for her at the admin block.

168. When she opened her class room door, she realised that the learners were Mnqobi and Thandeka. Mnqobi was supposed to be in her class. She continued with her lesson after which she went to the staff room. When she entered the admin block, she saw the two learners sitting on the beach.

169. Since Mnqobi had dodged her class, she asked him why he was not in class and why he was sitting there and also asked him if he had done something. He told her that the Applicant found them behind the door and that his hand was in the wrong place, in the bloomers or panty.

170. She scolded him and reminded him about the many times she had spoken to them about issues of adolescence which are taught in her natural science subject.

171. She testified that when she arrived at Osizweni Mthiyane warned her about the Applicant’s table, the big table, satan, satan who are believers. In the passage of time, she did not see this about this table.

172. Ms Jele, Mrs Mthiyane and she were initially friends but she decided to back off. The post of HOD worsened the situation although it did not affect her directly. Ms Jele cautioned her that if she did anything to jeopardise her position, she is warned that she practices witch craft, she kills.

173. She stated that she was then given isiZulu and natural science when she was the only educator who was teaching physical science. She had done well in this subject and the lowest she ever got was 59%. She explained that this was a way of preparing her for PPN since she left the school through this process.

174. During cross-examination she disputed that she PPN process was conducted by the HOD and the School Principal. She also disputed that she came from a primary school and that her subject advisor said that she failed dismally.

175. She further disputed that the Applicant stood between her and Mrs Mthiyane and stared at Mthiyane with her hands on her waist during the stair case incident. She stated that the Applicant was not shouting when she spoke to the learners but it was quiet.

176. She did not take any steps as class teacher about the incident because the school was closing but on the following day she spoke to the Applicant who told her that Ms Gasa attended to the matter. She denied that she called Mnqobi touch and go after the incident.

177. Ntokozo Patricia Kubheka was also an educator at Osizweni High School from May 2014 until March 2023. She testified that initially she taught English and technology and in 2015 she only taught English and eventually she was put in isiZulu before she left.

178. She confirmed that there was an investigation which was conducted in September 2019 and that she was interviewed twice by the inspectors from the District Office. The first interview was about the lack of good relations in the English Language department and that they were not teaching.

179. After two weeks she was interviewed further by Mr Nkosi and Ndabe. On this occasion she was asked about the toilet incident. Mr Nkosi said that he was told that she was also present in the toilet when the incident took place.

180. She told him that she could not have been there because she does not use the public toilet. She also told him that at the school there was Ms Zuma and herself Zuma-Kubheka. He insisted that she was present whereupon she was charged for failing to report the incident but the charges were subsequently withdrawn.

181. She testified that during the assembly incident Ms Mthiyane arrived late at the school when the prayer had already started. The Applicant was already on the podium when she came and ordered the learners to go to class.

182. She stated that she tried to redirect the learners to go back to the assembly and Ms Jele told Mthiyane that she was late. Mthiyane said that she had told the learners to meet her in class.

183. She further stated that she was also charged with an alternative charge along with Ms Mthiyane. She was found guilty and a fine of R2,000 was imposed as a sanction. On appeal the decision was set aside.

184. She further testified that she was initially teaching English and later she was taken out and given isiZulu. This was done by Ms Jele, the departmental Head for Languages. The subjects were changed on a Friday when the PPN was going to be on Monday.

185. She explained that this was preparing her to be excluded through the PPN Process. If she was teaching English for five years and then given isiZulu that would mean that she was teaching for the first time. When the PPN was applied, she was selected to leave because she was new.

186. During cross-examination when it was put to her that the PPN was done by the school Management team by looking at the curricular needs of the school, the experience of the educator and qualifications, she stated that she should have been rated in terms of the subject she was teaching, not isiZulu.

187. She and other aggrieved educators wrote to the District Office but nothing changed whereupon Mr Mtolo from NATU lodged a dispute at the ELRC on their behalf.

Closing Arguments

188. In the closing arguments the parties submitted a total of 56 pages and 146 paragraphs. The arguments are compelling and persuasive but they are too exhaustive to be entirely set out in this arbitration award.

189. They have been considered for the purposes of this award and also accepted as forming a written record of the arbitration proceedings.

Respondent’s Argument

190. Dumisa submitted at par 9 – 11 that the evidence confirmed that the Applicant took the learners to the toilet. Ms Guliwe testified that she heard the Applicant shouting instructing the two learners to sexually violate each other.

191. The Respondent disputes that there was a door in the spare classroom, all five witnesses of the Respondent agree that the spare classrooms had no doors. (par 13)

192. In her defence the Applicant stated that this case was fabricated by Ms Mthiyane and Ms Jele because of the post of Departmental Head but she did not substantiate this by any evidence. (par 27)

193. She further submitted that there was no need for the Applicant to confront Ms Mthiyane after the assembly. This was undermining and provocative when she could have reported the matter to Ms Jele. (par 22)

194. Ms Mthiyane testified that the Applicant pushed her on the staircases although Ms Gumede disputed this. She argued that Ms Gumede was trying to protect the Applicant which shows how powerful the Applicant was and how other educators feared her. (par 33)

195. She also argued that it cannot be dictated to the Respondent which witnesses to call. The Applicant contends that Ms Zuma was the important part of the puzzle since she was in the toilet. In this regard she (Ms Zuma) had prepared sworn affidavits defending Ms Zwane and Kubheka. (par 35)

196. The Respondent admits that there was a plea bargain but by pleading not guilty the Applicant was in breach of the plea bargain. She argued that the dismissal of the Applicant was both substantively and procedurally fair.

Applicant’s Argument

197. Mgaga argued that the Respondent has failed to discharge its onus of proving that the Applicant is guilty of the two misconduct charges. He submitted that there is more than sufficient evidence that the toilet incident was fabricated by Ms Jele and Ms Mthiyane (Par 6).

198. The Applicant was advised and persuaded by her then Union representative, Mr Mtolo, to change her plea at the disciplinary hearing. He told her that he would secure a plea bargain agreement in terms of which she would be suspended for 1 month without pay, but she would keep her job (par 8).

199. He further submitted that both misconduct charges fall under section 18 of the Employment of Educators Act 76 of 1998 (EEA) wherein dismissal is not a preordained sanction. The Applicant provided a plausible explanation as to why she changed her pleas (par 14).

200. He submitted that no misconduct was committed in the exchange of words between the Applicant and Ms Mthiyane after the assembly. This was just an unpleasant exchange between two educators who do not respect each other (par 76 – 77).

201. The Applicant must thank Ms Gumede who was brave enough to stand up for the truth, and refuted Ms Mthiyane’s version that she was pushed by the Applicant on the stairs. Her evidence was comprehensive, free of any contradictions or improbabilities (par 81).

202. He also submitted that the Applicant cannot be found guilty of the impimpi incident. Ms Mthiyane assumed that the Applicant was referring to her. If anything, the evidence revealed that it was other educators from the English component who may have directly called Ms Mthiyane an impimpi for Ms Jele (par 83 – 84).

203. The procedural unfairness is now limited to the undue delay in instituting the disciplinary proceedings against the Applicant after the completion of the investigation in January 2020 (par 86). The Respondent led no evidence whatsoever to explain the reasons for the delay (par 91). He argued that the Applicant should be re-instated with retrospective effect (par 93).

Analysis of evidence and argument

204. Item 2(1) of the Code of Good Practice: Dismissal, provides that a dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure.

205. Items 7 of the Code provides factors to be considered in determining whether a dismissal for misconduct is unfair.

206. In Dikobe Matlotleng Gerald v CCMA and others (JA45/2015)[2016] ZALCJHB the court held that where there is a dispute about the breach of a rule, the burden is on the Employer to lead evidence on the existence, the specific content, the dissemination, as well as knowledge of the rule on the part of the Employee.

207. In the present case the Applicant was dismissed for contravening section 18 (1)(t) and Section 18 (1)(q) of the Employment of Educators Act 76 of 1998, as amended.

208. At the disciplinary hearing the Applicant faced two charges.

209. Charge 1 encapsulates three incidents which allegedly took place on separate dates in 2019.
The Incidents are namely:
(a) The assembly incident;
(b) The staircase incident; and
(c) The impimpi incident.

210. The Respondent presented the evidence of six witnesses and one of them, Sibongile Guliwe was subpoenaed to come and testify. The Applicant called three witnesses to testify on her behalf.

211. At the commencement of the arbitration proceedings the Respondent led evidence with regard to charge 2 before charge 1 and in my analysis, I will also deal with the evidence in that sequence or order so that it ties up with the record of the proceedings.

212. First and foremost, I must record that in my assessment and evaluation of the evidence I considered the following three factors:

(a) The events which gave rise to the dispute took place during 2019, almost five to six years before the commencement of the arbitration proceedings. The significance of this factor is that the memory of the witnesses may have faded during the intervening period.

(b) Learner witnesses were called to testify. They were obviously much younger in 2019 than they were when they testified at the arbitration hearing in 2024.

(c) It was common cause that there were groups, factions or divisions amongst the educators at the school. The issue would be whether they played a part, contributed or they were actually the root cause of the events which gave rise to the dispute.

213. I am not suggesting therefore that the evidence of the witnesses from both parties should necessarily escape the scrutiny it deserves in making credibility and probability findings, except that I must approach the evidence with caution.

214. I proceed to deal with the second charge. It is common cause that the Applicant found Mnqobi and Thembeka in the spare class room after they had bunked their classes.

215. It is also common cause that the female staff toilet featured in the chain of events albeit for different reasons. It was further common cause that both learners were told to come with their parents to the school after the incident.

216. The questions to be answered are whether or not there was a door in the spare class room; the learners were alone or whether there were other learners; they were behind the door, if there was a door and they were deep kissing with the girl learner leaning against the wall next to the window or Mnqobi had his hand in her underwear.

217. The next questions are whether only Thembeka or both of them went into the staff female toilet; or Mnqobi remained sitting on the bench; and if both of them entered the staff female toilet; whether they were instructed by the Applicant to sexually violate each other.

218. Although there were contradictions and discrepancies in the testimony of the witnesses, the evidence which I have found to be inherently probable is that there was no door in the spare classroom. Thembeka and Muqobi could therefore not have been behind the door when the Applicant came to investigate what was happening.

219. The Applicant testified that she left her class because of the noise which was coming from the spare classroom. The learners testified that they were alone and kissing. It would then be improbable for them to be kissing in the presence of other learners.

220. The probability is that they were alone in the spare classroom. The evidence established that there were other spare or vacant class rooms apart from the one in question. Whilst the presence of the noise cannot entirely be excluded it is possible that it came from one of the other spare classrooms. The learner who allegedly looked behind the door did not testify to confirm that there was a door and/or that there were other learners in the spare classroom.

221. There are contradictions and discrepancies regarding what the learners were actually doing when the Applicant found them. However, I accept the Respondent’s version that they were kissing. I reject the Applicant’s version that they emerged from behind the door.

222. If the learners suddenly emerged from behind the door in a class room where there were other learners and the Applicant did not see what they were doing, there would be no need for her to interview them after her lesson in the first place.

223. According to the learners the Applicant instructed them to follow her but the Applicant stated that she told them to wait for her at the admin block because they were not telling her what they were doing behind the door.

224. Up to this stage it is important to note that the only educator, other than the Applicant, whose name was mentioned is Ms Gumede. Gumede testified that she heard the Applicant telling the learners to wait for her at the admin block. It is also important to note that Gumede was perceived to be in the Applicant’s group.

225. Gumede further testified that when she went to the staff room after her period, she saw Mnqobi and Thembeka sitting on the bench by the reception area. According to this version the Applicant could not have led the learners from the spare classroom straight to the staff toilet.

226. It was common cause that the Applicant entered the female toilet but the question is whether she took only Thembeka or both learners to the toilet. According to the Applicant she only took Thembeka to interview her privately and Mnqobi remained sitting on the bench. According to the learners the Applicant took both of them from the spare classroom straight to the toilet.

227. The learners testified that certain educators entered the toilet while the Applicant was instructing them to sexually violate each other. They mentioned Ms Guliwe, Ms Ndlovu, Ms Hadebe, Ms Zuma and Ms Sigasa. Of these educators only one testified at the arbitration hearing, Ms Guliwe.

228. Guliwe testified that when she entered the toilet, she heard the Applicant shouting and instructing Thembeka to put her leg on the sink and Mnqobi too put his finger into her private part. This version is consistent with the learners’ version, but the issue is whether it is probable.

229. In her testimony she further stated that the Applicant then explained to her that she found Thembeka and Mnqobi in the spare classroom with Thembeka’s leg on the desk and Mnqobi touching her private part. Neither the Applicant nor the learners mentioned this in their evidence. According to the Applicant she did not see what they were doing and the learners stated that they were kissing.

230. Guliwe is the only educator witness who testified about the toilet incident. In her evidence she further stated that she did not tell anyone about the incident, except Ms Ndlovu from learner support, until she was interviewed by the investigators. Ms Ndlovu did not testify to confirm what Guliwe told her or what she actually found.

231. According to the learners they also did not tell their parents about the toilet incident. They also stated that Ms Gasa who spoke to Thembeka’s mother and Mnqobi’s sister, also did not mention the toilet incident. She only told them about the spare classroom.

232. I find it to be highly improbable that the Applicant would give such an instruction to the learners in a place which is used by other educators including educators who were not in good terms with her.

233. Thembeka stated that she lifted her right leg and Mnqobi stated that it was her left leg. Guliwe could not remember at which stage Thembeka put her leg on the sink, whether it was before she entered the toilet or it was after she came in.

234. It is my finding therefore that there is insufficient credible evidence to prove that both learners were taken into the toilet by the Applicant and instructed to sexually violate each other.

235. The incident in the spare classroom was poorly handled and exaggerated by the Applicant. The toilet is not an appropriate place to conduct an interview with a learner. The incident did not even warrant for the parents to be called to the school, let alone without the Principal, HOD or even the class teacher knowing about this. On the other hand, the toilet incident was not properly investigated by the Respondent.

236. I proceed to deal with the assembly incident, the first element of charge 1. It was alleged that the Applicant shouted at Mrs BB Mthiyane in front of the learners.

237. At the arbitration hearing no evidence was led with regard to this specific incident. The only evidence which was presented was with regard to the different instructions given to the learners by Ms Mthiyane and Ms Kubheka. Mthiyane was pulling the learners out of the assembly and Ms Kubheka was telling them to go back to the assembly.

238. According to the evidence presented the only time that Ms Mthiyane and the Applicant exchanged words was in the staff room after the assembly. Even on Mthiyane’s own version Ms Kubheka shouted at her during the assembly incident.

239. The Respondent’s version about this incident is that the Applicant was not even on the podium when the assembly started. Therefor it is highly improbable that she would have shouted at Ms Mthiyane in front of the learners.

240. I now proceed to deal with the staircase incident, the second element of charge 1. It was common cause that Ms Gumede was standing on the ground and that Ms Mthiyane was standing on the third staircase on the far left of the photo (B37). It was also common cause that the Applicant was coming from grade 10 class (top of the photo).

241. It was agreed that the length of the staircase from the left to the right of the photo consists of approximately 20 bricks and that people can walk past each other up and down the stairs without making contact with each other.

242. Ms Mthiyane was not specific in her evidence about the actual nature of the contact. Initially she stated that she was pushed and then later she stated that she was bumped with a shoulder.

243. From the position where the two educators were standing it is clear that the person who had a better view was Ms Gumede. She was standing on the ground and facing the full length of the staircase. She also had a better view of the grade 10 block.

244. According to Ms Gumede there was no contact between Mthiyane and the Applicant. Not only did she not see any contact but no sooner had Mthiyane claimed that she was pushed, she made a spontaneous statement, “usuqalile futhi”, (there you go again).

245. In her evidence she explained that she made this statement because Mthiyane was used to being an aggressor and fabricate things. I accept her version because I have no reason not to. I find Mthiyane’s version to be improbable considering the position where she was standing and the size of the staircase.

246. I proceed to deal with impimpi incident, the third element of charge 1. Ms Mthiyane was candid and explicit when she testified about how she was bullied by the Applicant.

247. The bullying manifested in the hurtful remarks which the Applicant made against Mthiyane to the extent that she decided to move from the staff room to the science laboratory.

248. The evidence established that Mthiyane was at the mercy of the Applicant and that the school management failed her. In her evidence Ms Jele also portrayed the Applicant as a person who would do as she pleased and who subjected her to disrespect, no compliance and humiliation. Like Mthiyane. Jele also stated that even the Principal did not protect her.

249. I accept Mthiyane’s version that the Applicant called her a traitor. I do so more because it was corroborated by Jele’s evidence in many respects with regard to the Applicant’s general conduct at the school. Although the Applicant disputed this but she did not offer any explanation in relation to the instances of bullying against Mthiyane.

250. She did not provide any explanation other than a bad denial about the microware incident, and the incident during which she sang a song in the staff room implying that Mthiyane was starving. I reject the Applicant’s version that it was instead the educators from the language department who referred to Mthiyane as a traitor “impimpi”.

251. Notwithstanding my comments above I find on a balance of probabilities that the dismissal of the Applicant was nevertheless substantively unfair because dismissal was not an appropriate sanction in respect of charge 1.

252. I make no finding in regard to the procedural challenge on the basis of the delay in instituting the disciplinary proceedings. The Applicant also contributed to the delay in the finalization of the arbitration proceedings.

253. I accept the Applicant’s explanation for changing her plea at the disciplinary hearing as reasonable and acceptable.

254. The Applicant asked to be reinstated and it is my finding that she is entitled to be reinstated because that is the relief that she asked for. Reinstatement comes with backpay.

255. The Applicant is therefore awarded backpay equivalent to 15 months and 14 days remuneration from 24 April 2023, the date of dismissal until 7 August 2024, the last day of the arbitration hearing calculated as follows:

256. R35,363.12 x 15 = R530, 446.80.
R35,363.12 ÷ 4.333 = R8,161.35 ÷ 5 days = R1,632.27 x 14 days = R22,851.77.
The total amount awarded as backpay is R553,298.57.

257. I therefore make the following Award:

Award

258. The dismissal of the Applicant is declared to be substantively unfair but procedurally fair.

259. The Respondent, the Department of Education, KwaZulu-Natal is ordered to reinstate the Applicant, Mavis Nomathemba Zwane, into its employ on terms and conditions no less favourable to her than those that governed the employment relationship immediately prior to her dismissal.

260. The reinstatement in the preceding paragraph is effective from 24 April 2023.

261. The Responded is ordered to pay Ms Zwane backpay in the amount of R553,298.57 into her bank account by no later than 30 September 2024.

262. The Applicant must report for duty to the Respondent on 16 September 2024.

263. The National Teachers Union (NATU) is ordered to pay the Education Labour Relations Council the amount of R15,680.00 as wasted costs being the combined Panelist and Interpreter daily fees.

264. The amount must be paid into the ELRC bank account by no later than 30 September 2024.

P Cele: ELRC Commissioner