About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Durban Labour Court, Durban
SAFLII
>>
Databases
>>
South Africa: Durban Labour Court, Durban
>>
2011
>>
[2011] ZALCD 24
|
|
MEC for Education for the Province KwaZulu Natal v Education Labour Relations Council and Others (D537/07, D166/10) [2011] ZALCD 24 (2 June 2011)
Pather AJ
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
CASE
NO: D537/07 & D166/10
NOT
REPORTABLE
In
the matter between:
The
MEC for Education for the Province
KwaZulu
Natal
.....................................................................................................
Applicant
And
The
Education Labour Relations Council
................................................
First
Respondent
M.M
Mbuli N.O
...................................................................................
Second
Respondent
J.M
Tshazi
...............................................................................................
Third
Respondent
____________________________________________________________________
JUDGMENT
____________________________________________________________________
PATHER
AJ.
Introduction
[1]
This is an application to:-
(a)
Condone the late filing of an application to review the Second
Respondent’s Award (“the award”); and
(b)
Review the Second Respondent’s Award which ordered that:-
“
1.
The respondent, Department of Education is ordered to re-instate
Msawenkosi J. Tshazi in its employ on the same terms and conditions
that prevailed prior to his dismissal.
2.
The respondent, Department of Education is also ordered to pay back
pay to Mr Msawenkosi J. Tshazi in the amount of R170 409-00
which is
an amount equivalent to twelve months remuneration calculated at R14
200-75 per month which is an amount that the applicant
earned at the
date of his dismissal.
3.
The respondent will re-instate the applicant Msawenkosi J. Tshazi
within (14) fourteen days of the respondent becoming aware
of this
award and the respondent will pay the amount referred to in paragraph
2 to the applicant within (30) thirty days of the
respondent being
notified of this award.”
Condonation
[2]
The late filing of the review application, which was not opposed, is
condoned.
Review
[3]
The Applicant, the M E C for Education for the Province of
KwaZulu-Natal, challenges the Second Respondent’s award. The
Third Respondent (“Tshazi”) had subsequently and under
case no. D166/10 filed an application in terms of Section 158
(1) (c)
of the LRA 66/1995 in which he seeks to have the award made an order
of court. As is the practice, both matters were heard
simultaneously.
Background
Facts
[4]
Mr Tshazi is employed as a Principal of Mfulamhle Junior Secondary
School (“the school”) at Umzimkhulu, KwaZulu-Natal.
The
area of Umzimkhulu and its schools formed part of the Eastern Cape
Province until its incorporation into KwaZulu-Natal during
2007. On
26 July 2004, the Umzimkhulu Magistrate’s Court found Tshazi
guilty of indecent assault. He was sentenced to pay
a fine of R6
000,00 or in default of such payment, to undergo 12 months’
imprisonment, half of which was suspended for 2
years on condition
that he was not convicted of indecent assault during the period of
suspension. Evidence presented to the Umzimkhulu
Magistrate’s
Court was that Tshazi had during 2002, indecently assaulted a learner
at the school, Anele Luswazi.
[5]
Disciplinary proceedings against Mr Tshazi commenced on 26 August
2004. He was subsequently found guilty and the findings read
as
follows:
5.1
“misconduct in terms of
Section 17(1)(b)
of the
Employment of
Educators’ Act No.76 of 1998
in that on or about June 2002 you
forced a learner, Anele Luswazi to have sex with you.” and
5.2
“misconduct in terms of
Section 18(1)
(f) of the
Employment of
Educators’ Act No.76 of 1998
in that on or about June 2002 you
unjustifiably prejudiced the administration, discipline and
efficiency of the Eastern Cape Education
Department by forcing a
learner, Anele Luswazi to have sex with you.” As a result of
this conviction, Mr Tshazi was dismissed
and his services were
terminated with effect from 31 December 2004.
[6]
Mr Tshazi then referred a dispute of unfair dismissal to the
Education Labour Relations Council, which was arbitrated by the
Second Respondent (“the arbitrator”) on 2 March 2007. The
arbitrator, finding that the dismissal was unfair, made the
order
referred to in paragraph [1] above.
Grounds
for review
[7]
The applicant challenges the award on the grounds that the arbitrator
misdirected himself in not considering the finding of
guilt made by
the Umzimkhulu Magistrate’s court. It was contended that the
arbitrator failed to give consideration to the
provisions of the
Employment of Educators’ Act No.76 of 1998, (“the Act”)
particularly Section 17(1) (c), which
states that:
“
17.
(1) An educator must be dismissed if he or she is found guilty of –
(a)…….
(b)…….
(c)
having a sexual relationship with a learner, student or other
employee;”
Reference
was made also to Section 17(2) of the Act which provides that:
“
(2)
If it is alleged that an educator committed a serious misconduct
contemplated in subsection (1), the employer must institute
disciplinary proceedings in accordance with the disciplinary code and
procedures provided for in Schedule 2.”
It
was contended in this regard, that the indecent assault being an
established fact, the arbitrator ought to have considered Mr
Tshazi’s
conviction in determining his findings. It was further contended that
it is absurd for the arbitrator to make a
finding based on the
balance of probabilities while knowing that Mr Tshazi had contravened
a common law offence which was proved
beyond a reasonable doubt in a
court of law.
The
further grounds of attack against the award are that the arbitrator
misdirected himself by not taking into account the special
trust
relationship that exists between educators and learners, and the fact
that Mr Tshazi, as school principal/educator, had occupied
a position
in which a high standard of morality applied. Such grounds however,
are based on the premise that the magistrate’s
court finding of
guilt is an established fact and that seemingly, the further evidence
heard need not be considered too closely.
[8]
Mr Tshazi opposes the application on the basis that, in directing a
letter dated 16 March 2007, five months prior to this application,
to
the effect that the award be implemented, the applicant had
acquiesced in the award. In the alternative, it was submitted that
the arbitrator had correctly found that the content of the criminal
trial was not automatically admissible and that the arbitration
hearing is a hearing de novo.In respect of the evidence led, it was
contended that the arbitrator:
8.1
had dealt with the evidence of the applicant’s witnesses Mrs
Msenti and Mrs Mbhele and had found it to be hearsay.
8.2
had approached Anele Luswazi’s evidence with caution as he was
a single witness, a minor at the time, whose evidence was
disputed by
other witnesses.
8.3
was concerned that the allegations of sexual abuse had only been
reported at a time when Anele Luswazi (“Anele”)
was in
trouble at school and had stayed away.
The
award
[9]
In his award, the arbitrator identified the issue in dispute as being
whether Tshazi had contravened a rule or standard regulating
conduct
in or of relevance to the workplace. In deciding the issue, he
compared the evidence presented on behalf of the applicant
to that
presented in support of Tshazi and concluded that on a balance of
probabilities, the applicant had failed to discharge
its onus of
proving that the dismissal was fair; Tshazi had not contravened the
rule (or standard).
[10]
The arbitrator rejected the evidence of the applicant’s
witnesses, Mrs Msenti and Mrs Mbhele, on the grounds that their
evidence was hearsay and did not corroborate Anele’s. He also
rejected Anele’s evidence because, according to him,
it was
largely disputed by the witnesses. The arbitrator considered Anele’s
testimony that although he had accompanied Tshazi
to places such as
Kokstad and Pietermaritzburg on more than one occasion from April
2002, yet the incidence of sexual abuse had
taken place (only) during
November 2002. This, according to the arbitrator, was improbable as
Tshazi had had opportunity to have
attempted sexual assault prior to
November 2002 during such journeys. Furthermore, the arbitrator found
it “surprising”
that Anele had not reported the abuse
until the issue of his outstanding school assessments was raised, and
at a time when he had
stayed away from school. The arbitrator further
drew an adverse inference from the applicant’s failure to call
Anele’s
grandmother as a witness; according to Anele, Tshazi
had gone to his grandmother’s home to request that he (Anele)
return
to school.
Evaluation
[11]
Regarding Tshazi’s argument of acquiescence in the award, the
letter referred to and dated 18 March 2007 is addressed
to the
District Director: Mzimkhulu District. Bearing the subject line
“IMPLEMENTATION OF AWARD – NATU OBO TSHAZI JM
PSES 125 –
06/07 EC”, the letter reads as follows:-
“
The
above matter refers.
You
are hereby requested to implement the Arbitration Award in respect of
Mr J.M.Tshazi P/N 53012216 in his employ on the same terms
and
conditions of service as those that prevailed prior to his dismissal.
The department is further ordered to pay Mr Tshazi an
amount of
R170
409 – 00. (Attached is the award)
As
you are aware in terms of
Section 143
of the
Labour Relations Act 66
of 1995
as amended, that the award is final and binding and may be
enforced as if they are an Order of the Labour Court.
Your
compliance is appreciated.”
(signed)
“Director: Labour Relations”
[12]
In terms of Section 3 of the Act:-
“
(1)
Save as is otherwise provided in this section – (a) …….;
and (b) the Head of Department shall be the employer
of educators in
the service of the provincial department of education in posts on the
educator establishment of that department
for all purposes of
employment.”
It
is not disputed that Tshazi is employed by the provincial Department
of Education; the Province of the Eastern Cape and its Department
of
Education having been incorporated into the Kwazulu-Natal province.
The Head of Department as employer employs educators and
terminates
their contracts of employment where necessary. It follows therefore
that only the Head of Department can determine the
provincial
department’s response to an award. The Director in the
Department of Labour Relations is a functionary, responsible
for,
among other duties, managing the relations between the employer,
namely, the Head of Department, and educators in the provincial
department’s employ. The Director of Labour Relations cannot in
the ordinary course, determine whether awards are implemented
or
otherwise dealt with, without reference to or the express authority
of the employer, the Head of Department. If that were the
case, a
situation could arise where the Head of Department may not be able to
properly account for the number of educators in the
provincial
department, or for the control of its budget.
In
the circumstances, the contention that the applicant had acquiesced
in the award is rejected for the reason that no evidence
exists to
prove that the author of the letter, the Director of Labour Relations
was authorised to give the instruction that the
award be implemented.
[13]
In terms of the well-known decision in
Sidumo & another v
Rustenburg Platinum Mines Ltd & others
[2007] 12 BLLR 1097
(CC)
,
the arbitration hearing is a hearing de novo and the test to
determine whether to interfere with an arbitration award is whether
the decision of the arbitrator is one which a reasonable
decision-maker could not reach.
[14]
In
Randburg Town Council v National Union of Public Service
Workers & Others (1994) 3 LCD 184 (LAC)
, it was held that the
Council was not entitled to rely merely on the fact of the conviction
in the magistrate’s court. The
facts in that case are briefly
that the employee had not been given an opportunity to state his
case, neither had his representative
been given an opportunity to
lead the employee’s or any other evidence. Furthermore, the
chairperson of the inquiry had believed
that the finding of the
magistrate rendered it unnecessary to hear any further evidence. Such
facts are different from those before
the court in this case; Tshazi
was
given the opportunity to state his case and to present the
evidence of witnesses to the inquiry and the arbitration hearing
before
the Education Labour Relations Council.
[15]
Was the arbitrator’s decision one that a reasonable
decision-maker could not have reached? He preferred Tshazi’s
evidence which he found to be “clear, coherent and not affected
by doubts and contradictions”. He accepted Tshazi’s
explanation that Anele had wanted to be promoted, but that because of
his (Tshazi’s) refusal to do so, Anele had accused
him of
sexual abuse. In this regard, Tshazi had testified that “Anele
approached me and I rejected him”. It is improbable
that an
educator would use such language in respect of a learner who is
seeking a special favour, particularly not an educator
who was
regarded by all in the school community, as being a firm
disciplinarian.
[16]
While on the one hand rejecting Anele’s evidence as being that
of a single witness to be treated with caution, the arbitrator
has no
difficulty in accepting the evidence of Tshazi, himself a single
witness. In any event, apart from his suggestion that Anele
was
bitter because he did not get his way, Tshazi’s evidence
amounts to nothing but a bare denial. In
S v Snyman
1968 (2) SA
582
(A) at 585B-H,
referring to the cautionary rule that has
developed in sexual cases, Holmes JA said: “In this connection
I respectfully agree
with the observations of Macdonald AJP in the
Southern Rhodesian Appellate Division cases
of R v J
1966 (1) SA
88
(SR) at page 90
to the effect that, while there is always need
for special caution in scrutinising and weighing the evidence of
young children,
complainants in sexual cases, accomplices and,
generally, the evidence of a single witness, the exercise of caution
should not
be allowed to displace the exercise of common sense.”
In my view, the arbitrator failed to exercise common sense. Even from
his approach to the arbitration hearing, dealing as he did within the
context of paragraph 7 of schedule 8 of the
Labour Relations Act, the
arbitrator displays a lack of common sense; it is absurd in my view
to approach such serious allegations amounting to criminal
conduct in
the context of schedule 8 of the
Labour Relations Act. Such
an
approach is similar to the “mechanical, “checklist”
kind of approach” against which the court in
Johnson &
Johnson (Pty) Ltd v CWIU
[1998] 12 BLLR 1209
(LAC)
at paragraph
29, warned. The court in that case dealt with a dismissal based on
the employer’s operational requirements,
and not as in the
present case, a dismissal for misconduct. However in my view, the
remarks are equally relevant to the application
of any aspect of the
Labour Relations Act to
a set of facts in which an alleged unfair
dismissal is being scrutinised.
[17]
The arbitrator rejected the testimonies of Mrs Msenti and Mrs Mbhele
as being hearsay, although it was substantially consistent
with the
evidence they had presented to the Magistrate’s court. In any
event, both witnesses testified to being shocked at
the allegation,
because they had regarded Tshazi as a good man. There was therefore
no reason for the arbitrator to reject their
evidence in totality.
Both had testified about the reports received from Anele. As
educators who until then had respected Tshazi
for being a “good
man” and strict “in a positive way”, they had a
duty of care towards learners at the
school, and each had sought to
establish the reason for Anele’s sudden and unexplained absence
from school.
[18]
While alluding to the fact that Tshazi had had opportunities to have
sexually abused Anele in the seven-month period during
which they
travelled together and interacted, yet one incident of sexual abuse
was reported, the arbitrator proceeds, in a subsequent
paragraph of
the award, to refer to Anele’s evidence of “continuous
abuse”. In any event, the arbitrator’s
reasoning is not
clear; he seems to suggest that only if the abuse had occurred more
than once should weight be attached to the
victim’s (Anele’s)
testimony. Moreover, as stated, the arbitrator drew an unfavourable
inference from Anele’s
not having immediately reported the
matter but had only done so when he, Anele was in trouble at school
for staying away. This
indicates that the arbitrator applied the
criminal standard to interrogating Anele’s conduct rather than
focusing on whether
there was a valid reason for Tshazi’s
dismissal. Furthermore, he ignored the seriousness of the allegations
against Tshazi,
an educator and principal of a school in whose care
parents had entrusted their children.
[19]
The arbitrator failed to consider:
19.1
Anele’s testimony that he had not at first reported the
incidents of sexual abuse because he had been afraid and further
that
he had wanted to avoid his grandmother, with whom he had been
staying, becoming aware of the incidents. It is well documented
that
some victims of sexual abuse only report allegations of such a nature
many years later perhaps when they are able to seek
assistance in
dealing with the trauma associated with sexual abuse;
19.2
Anele’s further evidence that when he returned to school after
being absent for three days, he had reported to Tshazi’s
office
“because that was the law at the school”. This is
reasonable and probable, in the light of the evidence that
Tshazi was
a hard task master. Tshazi was also the principal whose station and
office the learners would have had to obey. The
arbitrator found
Anele’s conduct inconsistent with one who alleges sexual abuse
by the very person to whom he had reported;
19.3
that Anele was a minor at the time of the incident and had already
testified in the magistrates’ court in 2002 and at
the
departmental inquiry two years later. It was therefore likely that he
was battle-weary by the time the arbitration hearing
was held;
19.4
that the incidents had occurred almost five years before the
arbitration hearing, and that accordingly it was understandable
that
the witnesses would not have remembered every detail precisely; and
19.5
the possibility that Anele’s absence from school was linked to
the sexual abuse by Tshazi, and which was corroborated
by a report
dated 25 August 2004 included in the bundle as part of the
applicant’s closing argument presented to the arbitrator,
of
SINANI, the “KWAZULU-NATAL PROGRAMME FOR THE SURVIVORS OF
VIOLENCE”.
[20]
In the context of the right of a child to be protected from
maltreatment, neglect, abuse or degradation, an arbitration involving
an educator who has been found guilty under Sections 17 (1) (b) and
(c), and 17 (2) of the Act must be approached with due regard
to the
learner as victim. It is absurd, as argued on behalf of the
applicant, to equate an employee convicted of other common law
crimes
with the case of an educator as employee, who has been convicted of
assault of a sexual nature allegedly perpetrated against
a learner of
the school. An arbitrator must balance the interests of the alleged
victim with those of such an employee when considering
the evidence
before him or her. While the arbitration hearing is a hearing de
novo, if an educator has been found guilty under
the Act as stated
above and in other forums, an arbitrator must consider and give due
weight to the evidence presented at any criminal
proceedings in the
magistrates’ court, where the burden of proof is greater than
that required at an arbitration hearing,
as well as to the record of
the internal inquiry. An arbitrator must be conscious of the
sensitive nature of the evidence and the
fact that with the passage
of time, some of the non-material details may be forgotten. This
ensures added protection to vulnerable
learners who in a school
environment may fall prey to educators who abuse their authority over
them. However, any finding of guilt
against an educator under Section
17 (1) (a) to (f), whether it be in a court of law or at an internal
disciplinary inquiry, cannot
be said to automatically lead to that
educator’s dismissal. The Act is the equivalent of an internal
Disciplinary Code and
provides the possible sanctions for a range of
transgressions of the code of conduct prescribed for educators. As
has been stated
in the
Randburg
case above, magistrates, like
other judicial officers, can make mistakes. An aggrieved but
convicted educator is entitled to appeal
against any decision of the
magistrates’ court, or the High court for that matter.
Similarly, the
Labour Relations Act 66 of 1995
as amended, protects
an educator who, feeling aggrieved at an alleged unfair dismissal
after being found guilty under
sections 17
(1) (a) to (f) at an
internal departmental inquiry, is entitled to refer such a dispute to
the bargaining council for arbitration.
Therefore, the applicant’s
contention that once the magistrates’ court had made a finding
of guilt against Tshazi,
that such fact was then established and that
dismissal under Section 17 (1) of the Act should follow
automatically, cannot be sustained.
[21]
In view of the finding that the arbitrator had failed to apply his
mind to and properly consider the evidence before him which
in turn
resulted in a gross irregularity in that a fair trial of the issues
did not occur, the award stands to be reviewed and
set aside. It is
in the interests of justice and the effective resolution of the
dispute, that an order be substituted rather than
remitting the
matter for hearing before another arbitrator, given that the
dismissal occurred more than 6 years ago. However, as
the applicant’s
primary ground for attacking the award has not been successful, it
would not be fair that the costs order
should follow the result.
[22]
In the premises, the following order is made:
1.
The award is reviewed, set aside and substituted with the following:
“
The
dismissal of Tshazi, the Third Respondent, is fair.”
2.
The Third Respondent’s application under case no.D166/2010 for
the
award
to be made an order of this court is dismissed.
3.
There is no order as to costs of both applications.
____________________
Pather
AJ
Appearances
:
For
the applicant: B. Macgregor
Instructed
by: Macgregor Erasmus Attorneys
For
the Respondent: R.Naidoo
Instructed
by: State Attorney
Date
of hearing: 28 April 2011
Date
of Judgment: 02 June 2011