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Weekly article from IR Network Daily Update

Practice and procedure/Substantive fairness in dismissal

Case: Western Cape Education Department v Baatjes and others - (2022)31 LAC 1.11.27 also reported at [2022] 6 BLLR 537 (LAC)


Subject matter classification:

Practice and procedure - Appeal - Dismissal - Misconduct - Appropriate penalty - Teacher assaulting learner and his grandmother in fit of anger and showing no remorse - Dismissal appropriate as evidence showed that teacher could not control anger.

Dismissal - Misconduct - Assault - Teacher assaulting learner and his grandmother in fit of anger and showing no remorse - Dismissal fair.


Mini Case Summary:

The respondent employee was dismissed after being found guilty on three charges arising from his assault of a learner by hitting him on the arm with a pipe and throwing him to the ground and the next day hitting him with his fist and threatening to kill him and throwing the learner's grandmother to the ground and kneeling on her. The employee pleaded guilty to the charge of hitting the learner with a pipe, but not guilty to the other charges. A bargaining council arbitrator found the employee not guilty of assault to do grievous bodily harm but ruled the dismissal fair. The Labour Court substituted the sanction of dismissal with a final warning and three months' suspension. The appellant contended that the arbitrator's decision on sanction was reasonable, and the employee argued that even if the charges were considered cumulatively the employee was guilty of only common assault and that the arbitrator should have considered a lesser sanction in the light of the employee's unblemished 27 years' service.


The Court noted that the employee had not cross-appealed against the finding that he was guilty on three charges. The fairness of the sanction was the only issue to be determined. Statutory arbitrators do not have power to impose a sanction afresh but must decide only whether the sanction of dismissal was fair. The test to be applied on review was whether the arbitrator's decision was reasonable. The issue before the arbitrator was whether the employee's misconduct was serious enough to warrant dismissal. He had noted that the employee assaulted the learner on the first occasion only because he was frustrated by his past behavior. The second and third assaults had occurred when the learner and his grandmother went to the school to report the earlier assault to the principal but had gone to the employee after finding that the principal was absent. The second assault on the learner occurred when the employee had grabbed the learner by his neck and thrown him out of his classroom and the third occurred when the employee pushed the learner's grandmother, a small woman, causing her to fall onto a cement slab, then knelt on her.


The Court held that whether the employee was guilty of common rather than aggravated assault was immaterial; the arbitrator had considered the gravity of the employee's misconduct from an operational point of view. That the arbitrator had not mentioned other possible sanctions mentioned in the Employment of Educators Act 76 of 1998 was also neither here nor there. What mattered was that the employee had punished a child by assaulting him. The employees' further argument that he had shown remorse was also rejected because, although he had pleaded guilty to the first charge, he had sought to blame the learner and his grandmother for provoking him. The employee clearly had anger management problems and there was no evidence to show that they had been brought under control. There was no place in a school for a teacher who is unable to control his temper even in trying circumstances. Evidence from anger-management specialists the employee had consulted did not square with his persistent denial that he had done anything wrong. This attitude also outweighed the employees' clean record. There was also no evidence to show that the employee had been provoked before he committed the assaults.


The Court noted further that after the employee referred during arbitration to his attempts to rehabilitate himself, the arbitrator had called for medical evidence on his condition. This was merely to assist the employee and not to help the employer build its case, as the employee's advocate had argued. Arbitrators are enjoined to extend a helping hand to lay parties. In any event, the requested report did not reach the arbitrator and could not be used on review. The Court confirmed that the dismissal was fair and upheld the appeal.

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