Dismissal of Limpopo teacher deemed fair by Education Labour Relations Council

A teacher from Limpopo who was this year dismissed after refusing to attend his disciplinary hearing for various offences, including assaulting two pupils and threatening a principal, has failed in his bid for reinstatement.

Sikhwivhilu Fhulufhelo, who was a teacher at Marhorhwani-Malali Secondary School in Louis Trichardt, referred his dismissal to the Education Labour Relations Council (ELRC). Fhulufhelo argued before the ELRC during hearings on August 26, October 13 and October 16 that dismissal in his absence was substantively and procedurally unfair.

The Limpopo education department denied the allegations on the basis that Fhulufhelo willingly refused to attend the hearing in April and that the dismissal was therefore procedurally and substantively fair.

The arbitrator, Thomas Mahasha, was called upon to determine whether or not Fhulufhelo was in wilful default — and if not, whether or not the dismissal was procedurally and substantively fair.

The department had charged Fhulufhelo for:

• beating two pupils;
• threatening school principal Nkanyane Mathebula; and
• refusing to submit pupil’s scripts and marksheets for final-year examinations on time without valid reasons.

He was also charged with:

• misusing the school stationery by printing pictures of different girlfriends and pasting them in the classroom;
• reporting for duty in the company of his girlfriend
• dressing unprofessionally in the workplace by putting trousers under his buttocks, thus displaying underwear; and
• showing abusive and insolent behaviour by telling school management team (SMT) members that they did not have qualifications and were just SMT members due to their age.

The hearing was held in Fhulufhelo’s absence. He was found guilty and dismissed in absentia on May 31.

He phoned the employee. The employee did not pick the phone. He phoned the deputy principal and requested her to give the phone over to the employee. The employee refused to take the phone call. As he was kept holding the phone, he heard the employee on the background saying that he would not attend and that the employer may do as they wish

—   Arbitrator Thomas Mahasha, summarising evidence of Elias Shivambu

The department relied on the evidence of Phethani Patrick Netshiomvhani, an assistant director: labour and wellness at the department. He testified that he visited the school on March 26 to serve a notice to Fhulufhelo to appear at the disciplinary hearing.

Netshiomvhani said the teacher refused to acknowledge receipt of the notice. Soon after refusing to acknowledge receipt, Fhulufhelo was seen driving out, allegedly to the district office with a blue vehicle. Upon arrival at the district office, he told an official about his refusal to acknowledge receipt of the notice.

Elias Shivambu, who was appointed to preside over the disciplinary hearing involving the employee, attended to the disciplinary inquiry on April 8. Upon realising that Fhulufhelo was not in attendance, Shivambu phoned the principal who confirmed that the teacher was at work.

“He phoned the employee. The employee did not pick the phone. He phoned the deputy principal and requested her to give the phone over to the employee. The employee refused to take the phone call. As he was kept holding the phone, he heard the employee on the background saying that he would not attend and that the employer may do as they wish,” Mahasha said in summarising the evidence of Shivambu.

Shvambu proceeded with the disciplinary hearing in the absence of Fhulufhelo.

Medical certificates deemed inadmissible

Fhulufhelo’s evidence before the ELRC was that he did not attend the disciplinary hearing because he was not notified. He said on March 26 he was not at school when the alleged notice of the disciplinary hearing was served. On that day he had consulted with a doctor. He could not attend the disciplinary hearing which was scheduled for April 8 because he had also consulted with his doctor.

Fhulufhelo denied signing an attendance register on both days, and that he drove out with a blue vehicle after refusing to be issued with a notice of the disciplinary hearing. He also denied all charges against him.

In his award, the arbitrator said the crux of the matter was whether or not the educator was granted an opportunity to be heard. It was not whether he was in attendance or not.

Mahasha said Fhulufhelo’s bare denial with regard to service of a notice to appear at the disciplinary hearing left much to be desired. The arbitrator said there was no conclusive evidence that he was not at work on March 26, the date on which the notice was to be served to him.

“There was enough evidence presented to prove that he could have been at work. If he was indeed not on duty, he could have reported his absence to the school principal, something he did not deny he did not do,” said Mahasha.

The arbitrator said even if it could be accepted that Fhulufhelo did not receive the notice, it was disheartening why he did not challenge Shivambu’s testimony that he phoned the school seeking to know his whereabouts and that he refused to talk to him over a phone.

Fhulufhelo had provided two medical certificates dated March 26 and April 8.

The arbitrator said it was necessary for the medical practitioner to have given testimony or deposed an affidavit explaining the medical condition of the teacher.

“No reason was given why no affidavits have been provided or at least why the medical doctor was not called upon to give oral evidence. I find the medical certificates to be inadmissible evidence and the applicant to have been in wilful default of attending the disciplinary hearing,” he said.

He found Fhulufhelo’s dismissal to be procedurally and substantively fair.

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