PSA obo GB Molosiwa v Department of Education and Sports Development-North West

A school principal (the applicant) was charged by his employer (the Department) with three counts of administering corporal punishment on three high school learners. Ms Bagenti testified that on 18 May 2011, the applicant hit the whole female class and then assaulted her and a fellow learner, Kristina, in the staff room. Matlholwa testified that the applicant slapped him on his cheek at a funeral. Pokwane, the LRC president, corroborated Matlholwa's evidence, observing hand marks on his face. The applicant denied the allegations. At the disciplinary hearing, the Chairperson found the applicant guilty and imposed a sanction of demotion from principal to Head of Department. The applicant appealed to the MEC. Without hearing further submissions from the applicant, the MEC substituted the demotion sanction with dismissal. The applicant declared an unfair dismissal dispute before the Education Labour Relations Council. The arbitrator found the dismissal to be fair, both substantively and procedurally. The applicant had been employed at the school since 1992, becoming principal in 1996 until his dismissal in 2013. He had successfully increased grade 12 results for 3-4 years in succession.

• Whether the arbitrator committed a reviewable irregularity in concluding that the applicant's dismissal was substantively fair
• Whether the arbitrator committed a reviewable irregularity by finding that the dismissal was procedurally fair, despite the applicant not being given an opportunity to present evidence during the appeal
• Whether the arbitrator committed a reviewable irregularity in concluding that the delay in finalising the outcome of the appeal was procedurally fair
• Whether the MEC had the power under Schedule 2, clause 9 of the Employment of Educators Act to substitute demotion with dismissal without affording the applicant a hearing
• Whether reinstatement or compensation is the appropriate remedy

The arbitration award was reviewed and set aside and replaced with an order that: (1) The dismissal of the Applicant was substantively fair but procedurally unfair; (2) The Head of Department of Education and Sport Development is ordered to pay the applicant a salary equivalent to 6 months calculated at the date of dismissal.

Where an appeal authority under the Employment of Educators Act, Schedule 2 intends to substitute a sanction imposed by a disciplinary chairperson with a harsher sanction (such as substituting demotion with dismissal), the appeal authority must, in terms of clause 9(4), afford the employee an opportunity to make representations by notifying the employee of the date, time and place where such representations must be made. The word "chooses" in clause 9(4) gives the MEC discretion to call for further hearings, but this discretion must be exercised in favour of a hearing when the MEC intends to impose a harsher sanction than that imposed by the disciplinary chairperson, as the employee must be allowed to present mitigating factors. Failure to afford such an opportunity renders the dismissal procedurally unfair. Additionally, unexplained delay of more than a year in finalising an appeal is contrary to the requirement in Schedule 2(2) of the Employment of Educators Act that discipline must be applied in a prompt, fair, consistent and just manner, and such delay renders the procedure unfair.

The Court made several non-binding observations: (1) In assessing whether witnesses have committed perjury in labour disputes, the principle from S v Ipeleng applies - it is wrong to simply ask "why would a witness commit perjury?" without considering that both sides may have interests in the outcome; (2) The fact that an employee is retained in employment during appeal proceedings under Schedule 2 of the Act does not necessarily indicate that the trust relationship has not broken down, as the Act specifically provides for such interim arrangements; (3) When an employee has been convicted of corporal punishment (which constitutes assault and is illegal in South Africa), shows no remorse, and cannot work with learners, continued employment would be intolerable and reinstatement is not appropriate even where there has been procedural unfairness; (4) An arbitrator's failure to expressly state reasons for preferring one party's evidence over another may constitute an irregularity, but will only be a reviewable irregularity if it results in an unreasonable outcome that no reasonable decision-maker could reach on the evidence.

This case is significant in South African labour and education law for clarifying the procedural requirements when an appeal authority (MEC) under the Employment of Educators Act intends to impose a harsher sanction than that imposed by a disciplinary hearing chairperson. It establishes that while Schedule 2, clause 9(5) gives the MEC power to amend sanctions, clause 9(4) must be read together with it to require that the employee be given notice and an opportunity to make representations before a sanction is increased. The judgment reinforces the importance of audi alteram partem (the right to be heard) as a fundamental principle of procedural fairness, even in appeal processes. The case also provides guidance on assessing procedural delay in disciplinary proceedings, applying the Constitutional Court's approach in Stokwe v MEC: Department of Education that delay must be assessed holistically considering length, explanation, prejudice, and the nature of the offence. It confirms that corporal punishment is illegal in South Africa and constitutes assault, making it serious misconduct justifying dismissal. The judgment demonstrates the Labour Court's review jurisdiction under the LRA to correct arbitrators' errors of law in applying statutory procedural requirements.