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[2025] ZALCCT 96
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Western Cape Education Department v Snyders and Others (C322/2021) [2025] ZALCCT 96 (3 October 2025)
FLYNOTES:
LABOUR
– Dismissal –
Fabricated
complaints
–
Educator
accused of misconduct against learners – Charges stemmed
from complaints raised by learners in rival class
–
Arbitrator questioned credibility of learners’ testimonies –
Evidence suggesting a coordinated effort
to fabricate complaints
against educator – Learner admitted to fabricating
allegations under peer pressure –
Described a coordinated
effort among learners to get educator dismissed – Testimony
corroborated by evidence –
Review application dismissed.
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT CAPE TOWN
Not
reportable
Case
no: C322/2021
In
the matter between:
WESTERN CAPE
EDUCATION
DEPARTMENT
Applicant
and
LEE-ANN LIEZEL
SNYDERS
First
Respondent
L O MARTIN
Second Respondent
EDUCATION LABOUR
RELATIONS
COUNCIL
Third Respondent
Date
of Hearing:
27 June 2025
Date
of Judgment:
3 October 2025
This judgment was handed
down electronically by circulation to the parties’ legal
representatives by email, publication on
the Labour Court website and
release to SAFLII. The date and time for handing down judgment is
deemed to be 10h00 on 4 October
2025.
JUDGMENT
V
BARTHUS AJ
Introduction
[1]
The Applicant is seeking to review and set aside the Arbitration
Award (“the Award”) delivered by the Second
Respondent
(“the Arbitrator”) on 7 June 2021, in terms of s145 of
the Labour Relations Act 66 of 1995 (“LRA”).
The
application is opposed by the First Respondent.
Background
Facts
[2]
The First Respondent was employed by the Applicant at Primrose Park
Primary school since 2013 as a post level 1 educator
and was
dismissed on 9 March 2020 on charges of misconduct. She was found
guilty of 14 of the 17 charges levelled against her.
[3]
The charges fall into the following categories:
a) improper
comments and insults directed at learners; (Charges 1,2,3,5,6)
b) physical
punishment/ contact administered to certain learners; (Charges
7,8,9,12,14, 15 and 17)
c) name-calling and
swearing (Charges 13, 16)
[4]
The contextual backdrop to the charges brought against the First
Respondent who taught the Grade 5B is that the charges
were based on
complaints raised by learners in the Grade 5A class, taught by Ms
Abrahams. The Applicant did not call Ms Abrahams
as a witness.
[5]
It is common cause that there was a rivalry between classes 5A and
5B. Mr Ward (the erstwhile Principal) testified that
rivalry was
between the children and the teachers of the respective grades. Ward
confirmed that the rivalry was toxic.
[6]
According to the Arbitrator’s assessment of the evidence, the
toxic rivalry which was referenced throughout the
arbitration hearing
underscores the charges against the First Respondent.
Grounds
of Review
[7]
The Applicant is challenging the Arbitrator's decision on the basis
that:
a) The
Arbitrator misconducted himself in the evaluation of the evidence
when he took irrelevant facts into consideration
while dismissing
relevant facts, namely, ignoring the evidence of a single witness
because of non-corroboration.
b) The
Arbitrator committed errors in law and procedural irregularities
through his reliance on hearsay evidence.
c)
The Arbitrator demonstrated bias against the learners by undermining
their credibility.
d) The
evidence did not rationally support the Arbitrator’s decision.
[8]
The first criticism of the Award relates to the arbitrator's decision
to deal with the charges collectively instead of
individually. Ms
Nyman labelled this a “
gross procedural irregularity
”.
[9]
The charges were not dealt with separately and in the order presented
in the charge sheet, in the arbitration. It is clear
from the Award,
however, that the Arbitrator dealt with all the charges, albeit not
under separate subheadings. It is not the Applicant’s
case that
the Arbitrator failed to deal with all the charges. In fact, Ms
Nyman, on behalf of the Applicant, did not point out
which of the
charges were not dealt with.
[10]
It is the form rather than the substance which is being attacked in
this instance. This cannot rationally be construed
as a procedural
irregularity by any stretch of the imagination. Interestingly, Mr
Rochert pointed out that the Applicant did not
deal with the charges
separately at the arbitration hearing either.
[11]
The charges implicating the First Respondent for having a learner
massage her back, instructing a learner to assault
another learner
and using racial slurs were found to be without merit at the
disciplinary inquiry and therefore excluded at the
arbitration. The
Arbitrator inferred from this “
that there was a propensity
of the learners for not telling the truth in the allegations
manifested in the charges against the applicant
(First Respondent)
”.
[12]
The Applicant asserts that this comment is indicative of misconduct
and bias. An arbitrator is permitted to draw inferences
where such
inferences are based on the conspectus of evidence before him. This
dispute turned on allegations made by Grade 5 learners,
and the 3
charges which were dismissed are similar to the charges which led to
the First Respondent’s dismissal. No bias
was demonstrated by
the inference drawn.
[13]
Regarding the name-calling, the Arbitrator found that, on a balance
of probabilities, some of it had occurred. Based
on the previous
application of the rules and discipline for similar offences by other
teachers, the First Respondent should have
been subjected to
progressive discipline coupled with a warning, according to the
Arbitrator. The Applicant, oddly, submitted that
because the
inconsistent application of discipline was not raised at the
disciplinary inquiry (or internal appeal), it should have
been
disallowed at the arbitration. The arbitration was a hearing
de
novo,
and there was nothing precluding the First Respondent from
presenting such evidence. The Arbitrator’s finding in this
regard
was reasonable.
[14]
The Applicant submitted that the Arbitrator misconducted himself when
he dismissed uncorroborated evidence due to his
bias and the belief
that the evidence was fabricated. The evidence referred to in this
instance is the complaint that the First
Respondent had put a learner
under the desk, that she asked a learner about their mother’s
v*gina and about a p*nis stuck
in the throat. In this instance, the
Arbitrator carefully evaluated the evidence based on plausibility.
Had the First Respondent
indeed made such crass, shocking utterances,
randomly in front of the entire class, then it follows that there
would have been
corroborating evidence. Moreover, the evidence
regarding the p*nis was retracted by the learner who exposed the
sinister plot against
the First Respondent.
[15]
The oral evidence relating to the First Respondent smacking a learner
was rejected because the learner was unable to
explain the context
around the incident, which rendered it improbable.
[16]
Similarly, the evidence regarding a learner massaging the First
Respondent with wooden blocks- Mr Ward testified that
it was a head
massage. The Arbitrator rejected this evidence, stating, “
I
can hardly imagine the applicant instructing a learner to bang wooden
blocks against her head.”
This was a reasonable assessment
of the probabilities made by the Arbitrator.
[17]
The Applicant argued that the First Respondent’s defence to the
charges was based on bare denials and a conspiracy
theory. The
conspiracy shall be dealt with in more detail below, as it was
addressed comprehensively in the Award.
The
conspiracy to oust the First Respondent
[18]
Learner B testified that the First Respondent was a “nice
teacher” and kind to the children. This learner
confessed to
lying at the disciplinary hearing about the First Respondent asking
her “if
she had felt a 'p*nis stuck in her throat'
. She
also confessed to fabricating the story about the beanbag being
thrown at a learner. She said she lied because of peer pressure
because “
the children went after each other”
. She
confirmed that Abrahams would ask them if they had complaints about
the First Respondent, which Abrahams would write down
and submit to
Mr Ward.
[19]
Learner B testified that the group of learners who made the
allegations collectively decided to propagate lies against
the First
Respondent. She testified that:
“
The stuff we
did all in Ms Snyders class and then how like what happened in her
class then we all write it down and so but nothing
happened in her
class that was all lies that the children made up”(sic).
[20]
Learner B went on to explain that the lies were fabricated to get Ms
Snyders kicked out of the school. The children implicated
in this
plot are the children who testified at the arbitration. Only 4 of the
8 children who testified at the disciplinary inquiry
gave evidence at
the arbitration. This context, provided by learner B, would explain
the contradictions and lack of corroboration
in the testimonies
provided by the other learners. For this reason, the Arbitrator found
that:
“
Most
of
the evidence led at this arbitration points in fact to fabrications
made in meetings of the group of learners making the allegations
against the applicant.”
[21]
The Arbitrator accepted Learner B’s evidence because it had
been corroborated by the evidence that there were discussions
in
groups about the complaints against the First Respondent and that
these complaints were brought to Abrahams. Learner B’s
mother
testified that she had 2 children in the First Respondent’s
class, and that had she been aware of the lies fabricated
against the
First Respondent, she would have dealt with her daughter. She gave
evidence about the character of the First Respondent
and her
competence as an educator.
[22]
The Arbitrator made the following important findings:
“
When
considering the testimony of Ward in particular as to the attitudes
of the learners particularly their penchant for defiance
of the
teachers and secondly their socio-economic circumstances, and thirdly
the behavioural problems that they presented, I am
satisfied to find
on conspectus of all the evidence presented at the arbitration
that it is unlikely that the applicant had
conducted herself
generally in the manner alleged.”
Legal
Principles
[23]
The review of arbitration
awards is governed by section 145 of the LRA, and the test that this
Court must apply in deciding whether
the arbitrator's decision is
reviewable has been rehashed incalculably since
Sidumo
and Another v Rustenburg Platinum Mines Ltd and others
[1]
as to whether the
decision reached by the commissioner is one that a reasonable
decision maker could not reach. The Constitutional
Court held that
the arbitrator's conclusion must fall within a range of decisions
that a reasonable decision maker could make.
[24]
In this matter, the
Applicant has listed several grounds for review on process-related
grounds and result-related grounds. The Labour
Appeal Court
(LAC)
in
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
[2]
held as
follows:
‘
[13]
The right to review an arbitration award on process-related grounds
has been a topic of recent discussion
and debate. It has been
regarded as a different species of review to that postulated
in Sidumo. Sidumo requires
the review court to ask the
question: is the decision made by the arbitrator one that a
reasonable decision maker could not reach
on the available material?
This has been interpreted by some to suggest that the Sidumo test
deals only with the result
or outcome of the arbitration proceedings
and that it remains open to review an award on process-related
grounds.
[14] Sidumo does
not postulate a test that requires a simple evaluation of the
evidence presented to
the arbitrator and based on that evaluation, a
determination of the reasonableness of the decision arrived at by the
arbitrator.
The court in Sidumo was at pains to state that
arbitration awards made under the
Labour Relations Act (LRA
) continue
to be determined in terms of
section 145
of the LRA but that the
constitutional standard of reasonableness is “suffused”
in the application of
section 145
of the LRA. This implies that an
application for review sought on the grounds of misconduct, gross
irregularity in the conduct
of the arbitration proceedings, and/or
excess of powers will not lead automatically to a setting aside
of the award if any
of the above grounds are found to be present. In
other words, in a case such as the present, where a gross
irregularity in the
proceedings is alleged, the enquiry is not
confined to whether the arbitrator misconceived the nature of the
proceedings, but extends
to whether the result was unreasonable, or
put another way, whether the decision that the arbitrator arrived at
is one that falls
in a band of decisions to which a reasonable
decision-maker could come on the available material.
…
[18]
In a review conducted under
section 145(2)(a)(c)
(ii) of the
LRA, the reviewing court is not required to take into account every
factor individually, consider how the arbitrator
treated and dealt
with each of those factors and then determine whether a failure by
the arbitrator to deal with one or some of
the factors amounts to
process-related irregularity sufficient to set aside the award. This
piecemeal approach of dealing with
the arbitrator’s award is
improper as the reviewing court must necessarily consider the
totality of the evidence and then
decide whether the decision made by
the arbitrator is one that a reasonable decision-maker could make.
’
(Emphasis)
[25]
Ms Nyman, on behalf of
the Applicant, asserted that there were errors in law in the Award
and based it on what she described as
the Arbitrator’s
inability to evaluate the evidence as set out in Stellenbosch
Farmer’s Winery Group Ltd and Another
v Martell Et Cie and
Others
[3]
.
[26]
I disagree. What the Award demonstrates is that the Arbitrator fully
considered all the evidence and made findings on
credibility,
reliability and the probabilities as set out in the
Stellenbosch
Farmers
case.
[27] On the
strength of the evidence placed before the Arbitrator, his decision
falls within the band of reasonableness and,
as such, I am
constrained to uphold the award without interference.
Costs
[28]
Regarding costs, this
Court wields a wide discretion under
section 162
of the LRA.
In
Zungu
v Premier of the province of KwaZulu-Natal and others, the
Constitutional Court
[4]
confirmed
that the rule that costs follow the result does not apply in labour
matters.
The
Court should seek to strike a fair balance between unduly
discouraging parties from approaching the Labour Court to have their
disputes dealt with and, on the other hand, allowing those parties to
bring to this Court (or oppose) cases that should not have
been
brought to Court (or opposed) in the first place.
[29]
This is a case where the Court has to strike a balance, considering
the requirements of law and fairness. The generally accepted
purpose
of awarding costs is to indemnify the successful litigant for the
expense he or she has been forced to incur to initiate
or defend
litigation.
[30]
In Public Servants
Association of SA on behalf of Khan v Tsabadi NO and Others
[5]
,
it was emphasised that: ‘…
unless
there are sound reasons which dictate a different approach, it is
fair that the successful party should be awarded her costs.
The
successful party has been compelled to engage in litigation and
compelled to incur legal costs in doing so. An appropriate
award of
costs is one method of ensuring that much earnest thought and
consideration goes into decisions to litigate in this court,
whether
as applicant, in launching proceedings or as respondent opposing
proceedings
.’
[31]
I am of the view that fairness
dictates
that the Respondent cannot be expected to endure costs defending
litigation where more thought and consideration should’ve
been
applied by the Applicant before approaching this Court to review the
Award. The interests of justice will be best served by
awarding a
cost order in favour of the First Respondent
at
the end of what has been a protracted legal process.
[32]
In the premises, the following order is made:
Order:
1.
The review application is dismissed.
2.
The Applicant is to pay the First Respondent’s costs.
V
Barthus AJ
Acting
Judge of the Labour Court of South Africa
Representatives:
For
the Applicant:
Adv Roseline Nyman SC
Instructed by The State
Attorney
For
the Respondent: Elton Rochert
Instructed by Elton
Rochert Attorneys
[1]
[2002] 3 BLLR 189
(LAC) at para 30.
[2]
2013]
ZALAC 28; [2014] 1 BLLR 20 (LAC)
at
paras 13 – 14 and 18.
[3]
2003
(1) SA 11 (SCA)
[4]
(2018)
39 ILJ 523 (CC)
[5]
[2012]
ZALCJHB 17; (2012) 33 ILJ 2117 (LC) at para 176.