Josie v Amity International School and Another (JS552/18) [2021] ZALCJHB 441 (9 November 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JS552/18

In the matter between:

JANEY JOSIE

Applicant

and

AMITY INTERNATIONAL SCHOOL

First Respondent

DR. D. KESKAR

Second Respondent

Heard: 31 May, 1 June, 12 and 13 July 2021

Written Closing Arguments delivered: 15 October 2021 (Applicant).

Delivered: 09 November 2021 (In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be on 09 November 2021)

JUDGMENT

PHEHANE, J

Introduction

[1] At the start of the hearing, Mr. Reddy for the applicant, raised a startling "preliminary point" from the Bar, to the effect that the dismissal of the applicant was "just unfair dismissal", given that the employer had substituted the recommendation of final written warning emanating from the disciplinary hearing, to a dismissal. Mr Reddy stated that an employer is not permitted to substitute the outcome of a disciplinary hearing. Mr. Bouwer for the respondents objected to this "premilinary point" and stated that the case that the respondent is to meet, on the pleadings, is one of an automatically unfair dismissal on account of making an alleged protected discloure. After listening to the parties' submissions I dismissed the preliminary point, as it lacked merit. On the pleadings before the Court, the applicant's case is an automatically unfair dismissal, as contemplated in section 187(1)(h) of the Labour Relations Act[1] (LRA).

[2] The applicant confused her own case. She states that the issue to be determined by this Court is whether her dismissal from the first respondent on 28 May 2018 is automatically unfair or whether it is "just an unfair dismissal".[2] It is astonishing that the applicant states in its closing arguments, that the "second issue" this Court is to determine, is whether the dismissal was as a result of a protected disclosure.[3] The first issue, then, according to the applicant, is that the "disciplinary hearing for all intents and purposes was procedurally and substantively unfair''.[4] This statement is not only incorrect, but in the light of the applicant's pleaded case and her referral to the Commission for Conciliation, Mediation and Arbitration (CCMA), the applicant's dispute falls squarely within the provisions of section 187(1)(h) of the LRA and not section 188(1)(a)(i) and (b) of the LRA.

[3] If the Court is called upon to determine the fairness or not of the applicant's dismissal based on misconduct, this Court lacks

jurisdiction, as it is not a Court of first instance relating to such disputes. The applicant cannot rely on section 158(2) of the LRA as an alternative remedy, as she seeks to do in casu (although not pleaded). This is because an unfair dismissal dispute premised on misconduct was not conciliated. Section 157(5) of the LRA bars this Court from adjudicating an unresolved dispute that is required to be resolved through arbitration. In Mkokeli v Bloomberg L P (Pty) Ltd,[5] this Court decisively stated that section 158(2) is not to be abused. In this regard, the Court, per Moshoana, J remarked as follows:[6]

'[40] In my view if a mere request gains a party audience in a court without jurisdiction, the whole scheme of the LRA, in particular section 191 will be unscrambled and be open to abuse by an astute pleader. There is a reason why the legislature chose to have certain disputes dealt with by the commission and or bargaining council and others by the Labour Court. To disturb this arrangement by a stroke of a pen seems incongruent with the entire scheme of the LRA.'

[4] The applicant's case as pleaded, is automatically unfair dismissal based on an alleged protected disclosure made by her on 25 March 2018.[7] This brings her dispute into the frame of section 187(1)(h)[8] of the LRA.

[5] Disputes pertaining to automatically unfair dismissals are resolved under the purview of section 191 of the LRA, which provides that they are to be referred to the CCMA or council with jurisdiction for

conciliation, and if the dispute remains unresolved, the employee may refer the dispute to this Court for adjudication. The applicant

referred a dispute in terms of section 187(1)(h) to the CCMA. It was concliliated and a certificate of outcome was issued on 20 June 2018. The statement of claim was delivered on 25 July 2018, and within the precsribed time-frame of 90 days as contemplated in section 191(11)(a) of the LRA.

[6] It is trite that judrisction is determined on the pleadings. This Court accordingly has jurisdiction to adjudicate this dispute in terms of section 187(1)(h) of the LRA

[7] The gist of the applicant's case, is that she made a protected disclosure regarding the favours that were bestowed upon a then grade 9 learner, Amara Mooloo (now an adult), which favours entailed Miss Mooloo being allowed to write tests in a separate venue from other learners, unsupervised, and on occasion, using her text books; that this was against the school's policy and the Gauteng Department of Education (GOE) policy. As a result of her protected disclosure made to the principal of the first respondent (Mrs. Kotze) and to two members of the first respondent's board of directors (Dr. Keskar - the second respondent and Mr. Bahadur),[9] she was disciplined and dismissed from employment. The applicant places Mrs. Kotze at the centre of her dispute, as the protagionist instrumental for her victimization and ultimate dismissal. The applicant seeks reinstatement or maximum compensation.

[8] The respondents oppose the referral on the basis that the applicant did not make any protected disclosure, that she was dismissed on account of misconduct, and that such hearing was fair.

Factual Background and relevant chronology

[9] The applicant was employed by the first respondent in 2017, as an English educator and a school based support team (SBST) educator.[10] In this postion, the applicant worked closely with the GOE on the Policy on Screening, Identification, Assessment and Support (SIAS) of 2014. The purpose of the policy is to provide a framework for the standardization of procedures to identify, assess and provide programmes for all learners who require additiional support in school.[11]

[10] On 25 March 2018, the applicant dispatched an e-mail to Dr. Keskar and Mr. Bahadur, in which, according to her, she made a protected disclosure. This email[12] reads as follows:

'Greetings Dr Keshar

I am writing to you under the Protected Disclosures Act 26 of 2000, under South African law. The contents of my email is without prejudice.

I am an educator at Amity International School, and my daughter is currently enrolled at the school in grade 9. My spouse, Advocate Oliver Josie has also sent and email to you regarding his concern over our daughter in a related complaint.

My concern refers to a Grade 9 parent (identity known to the school and myself) who has been harassing and intimidating me since 2017, and again this year. The afore-mentioned parent sent an email on 23 February 2018, with false allegations against me, to Mrs Kotze. All of the latter untrue allegations I am able to refute with evidence. On the 26 February 2018, I was called to meet with a labour law attorney, acting on behalf of Amity International School. At first, I met with the attorney who led me to believe that he was acting on my behalf as employee of the school against the above-mentioned parent. As a loyal educator of the school I proceeded to fully cooperate in this manner as I deemed it to be serious untruths about myself. However, as events ensued, it transpired that the attorney was assisting Ms Kotze to investigate my conduct in a procedurally unfair manner. I am advised that this latter conduct by the school may contravene provisions of the South African Labour Relations Act.

On 7 March 2018, I was again called to Mrs Kotze's office to meet with the same attorney. However, on this occasion, I got a completely different sense of the role of the school, the principal and the attorney. It became abundantly clear that I was under investigation and that the parent's false allegations against me was disregarded. Mrs Kotze made it clear that she had interviewed the parent and belieevd her as opposed to me. I found this rather strange as most of the educators and the principal are aware that this parent is difficult and has unrealistic expectations for her child at the school. Since then, Mrs Kotze has beeen treating me differently and avoiding any meaningful interaction with me.

My suspicions were confirmed when Mrs Kotze went to the above child's class and asked the the other learner's [sic] about my actions regarding this child and the said parent's allegations were proven to be untrue. Mrs Kotze refused to provide me with feedback to date. Furthermore, it has become apparent that this parent has an expectation for her child to obtain only disticntions. Should any teacher not favour her child in this way, she then harsasses the teacher, as she is currently doing to me. She has attempted to bully me, and even brought her sister to meet with me, the latter who works as an assistant for an attorney.

At Amity International School, other learners have allegedly stated that this child is favoured by other teachers to the extent that she was even allowed to write a control test with her textbooks! Other learners at the school are openly discussing how this child is favoured. Learners have conveyed this message to the principal and have informed their parents' [sic] accordingly. Amity School is subsequently being viewed in a negative light. Many educators have allegedly received 'gifts' from the child or her family members in exchange for her special treatment. She is also allowed to write exams in a separate venue, without proper supervision, against GDE regulations, which I have witnessed.

I refuse to be influenced in any negative way or compromise my ethical principles and have therefore become a target of this parent.

I am approaching you with these gross irregularities as I am of the reasonable belief that management has no intention of addressing these. I am hopeful that you will handle my complaint in a fair and objective manner. I also trust that you will investigate these concerns with learners and or parents of the school. I reserve all my rights and may consider other alternative action if necessary.

I have also copied Mr Sagar Bahadur on this mail as well. Yours faithfully

Mrs J Josie'.

[11] The above email by the applicant was responded to by Mr. Bahadur on 26 March 2018 and he undertook to obtain Dr. Keskar's inputs.[13] On the same date, Dr. Keskar responded to the applicant, informing her that she had sent the email to an incorrect address and that Mr. Bahadur had informed him of the issue. Further, that he would consult with the school's authorities and revert.[14]

[12] On 28 March 2018, a meeting was held between inter alia, the applicant, Mrs. Mooloo (the parent of Amara Mooloo) and Mrs Kotze. The meeting resolved that Mrs. Mooloo and the applicant would work together in the interests of Miss Mooloo. This meeting was minuted.[15] The minute does not explain the investigation and what it entailed. According to the applicant, she had, on an earlier occasion, on 13 March 2018, complained to Mrs Kotze about unfair treatment and victimization towards her, which commenced after the applicant had informed Mrs. Kotze about the irregularities concerning Miss Mooloo.[16] In the email, the applicant laments about not being recognized for the achievements identified by herself and complains about not being appointed as the Subject Head of English. She further complains about a fellow educator, Ms. Jasmat and about action being taken against her following her complaint about Mrs. Mooloo. The applicant demanded a response to her compliant, failing which, she would escalate the complaint.

[13] On 7 April 2018, the applicant sent an email to Dr. Keskar, thanking him for his intervention and stated that the allegations against her by the parent concerned (Mrs. Mooloo) were false. She sought, inter alia, minutes of meetings and the investigation report conducted by Mrs. Kotze. Dr. Keskar directed the applicant to seek the information from Mrs. Kotze, which she did.[17]

[14] On 19 April 2018, according to the applicant, she discussed the issue regarding irregularities concerning Miss Mooloo with Dr. Keskar. A week later, on 25 April 2018, she was suspended from duty[18] and received notitication to attend a disciplinary hearing on 4 May 2018.[19]

[15] The allegations of misconduct read as follows:

'2.1 Gross misconduct - Discussing confidential information about colleagues and learner/s, with learners during academic teaching times.

2.2 Intimidation - Threatening children with legal action because their parent/s allegedly complained to other teachers.

2.3 Misconduct - Not teaching in the allocated hours that you should be teaching.'

[16] On 30 April 2018, the applicant requested further particulars regarding the allegations of misconduct levelled against her, access to specified information and enquired about her application for the postponement of the hearing.[20]

[17] The information sought by the applicant was the following:

'1. All information. Documents, notes whether typed or hand -written, typed and electronic email which the employer intends to use as the disciplinary hearings, including electronic recordings...

2. Copies of all affidavits and statements of the employer's witnesses;

3. Mrs Josie's Time Table for 2018.

4 Copy of Disciplinary Policy and /or code and all other policies/codes that the employer intends to use at the disciplinary hearing.

5. Copy of the Confidentiality Policy.

6. Copy of the Amity International school, SA Code of Conduct.

7. Copy of the Amity International school, SA Performance Management Policy.

8. Copy of Mrs J Josie's signed performance agreement for 2018.

9. Mrs J Josie's signed Job Description for 2018.

10. Copies of all Mrs J Josie's signed performance evaluations for 2018.

11. Copies of all documents and signed minutes of counselling sessions, if any relating to any remedial and/or corrective action taken against Mrs Josie for 2018 in relation to the three (3) alleged offences.

12. Copy of the investigation report and all exhibits into the three (3) alleged offences.

13. Copies of emails from parents sent to the Principal and/or management who commended Mrs J Josie's positive impact at Amity International school.'

[18] On 2 May 2018, Mrs. Kotze provided the applicant with information, which, according to the respondents, was sufficient for the applicant to prepare her case, and informed the applicant that her hearing was rescheduled to 7 May 2018.[21]

[19] On 3 May 2018, the applicant objected to the information that was provided to her and the unilateral rescheduling of the date of the hearing. She demanded legal representation and that the hearing be postponed to 11 May 2018.[22]

[20] On 3 May 2018, the applicant was furnished with her employment contract, job description, school cyber policy, code of conduct for educators and anti-bribery policy.[23]

[21] It is common cause that the hearing took place on 7 and 14 May 2018. The outcome of the hearing by the chairperson (Ms. Natascha Botha) was that the applicant was found guilty on the first two charges and not guilty on charge 3. The recommended sanction was a final written warning.[24]

[22] On 23 May 2018, the applicant enquired from the chairperson and Mrs. Kotze, when she could return to work.[25]

[23] On 25 May 2018, Mrs. Kotze sent to the applicant, a settlement offer, recording inter alia, that the applicant's employment would be terminated with effect from 28 May 2018 and offering her the payment of three months' salary.[26]

[24] On 27 May 2018, the applicant rejected the settlement offer and alleged that she was unfairly dismissed and discriminated against by the school on the basis of race.[27]

[25] In a letter dated 28 May 2018, Mrs. Kotze informed the applicant that she was dismissed with effect from that date.[28]

[26] The applicant lodged a dispute at the CCMA as aforesaid. On 20 June 2018, the CCMA issued a certificate of outcome, that the matter remains unresolved.[29]

Evidence

[27] Mrs. Josie, the applicant, was the sole witness for the applicant's case. In summary, her evidence was that she made a protected disclosure firstly, to Mrs. Kotze and when there was no response from her, secondly, to Dr. Keskar and Mr. Bahadur (located outside South Africa). The protected disclosure was with regard to the irregular conduct at the school as contained in her email of 25 March 2018. Her evidence in relation to her protected was the following:

'MS JOSIE: I believe at the time the protected disclosure was made, M'Lady was justified. It is what I witnessed. I believe irregular behaviour was allowed at Amity International School. I believe teachers were being bribed. I believe corruption was rife. And I put my head on the block and I made a protected disclosure in the hope that the directors would be fair, which they were not. And I lost my job. I paid the price for three years, M'Lady. I am unable to get a job at this point in time.

…

COURT: And very crisply, what is the protected disclosure that you made? We have been through the letter at page 85. What is the protected disclosure you say you made? That the first question. You mentioned that teachers were bribed.

MS JOSIE: Yes, M'Lady.

COURT: Who was bribed and who was bribing the teachers?

MSJOSIE: M'Lady, Ms Moloo, Amara Moloo's mother, gave gifts and I have ...well, this is what came to my attention.

COURT: Gives [Gifts] to who? MS JOSIE: Ms Kotze.

COURT: And how do you know this?

MS JOSIE: This was brought to my attention by the learners. They said it has been happening for many years. And on the day of my disciplinary hearing ...[intervenes]

COURT: And what was the purpose of these gifts? MS JOSIE: M'Lady, I have no idea.

COURT: And what is the crux of the protected disclosure that you made?

MSJOSIE: The crux of it is that irregular behaviour was being conducted at Amity International School.

COURT: What is that irregular behaviour?

MS JOSIE: That Amara Moloo was given special privileges that no other child was given. This is against school policy and the education policy; that this was being done because Ms Kotze was being bribed and it amounts to corruption.'[30]

[28] Mrs. Josie stated that Miss Mooloo was a student who obtained distinctions in her subjects and was not in need of any concessions to assist her in her school work. She stated that if Miss Mooloo received any concessions, it would have come to her attention by virtue of her position.

[29] Her evidence was that other learners informed her that Miss Mooloo's family gave educators gifts in-return for preferential treatment for Miss Mooloo, in that she was permitted to write tests unsupervised and with her text books. She witnessed this. She stated that this occurred frequently.

[30] Mrs. Josie's evidence was that in February 2018, Mrs. Mooloo sent an email[31] to Mrs. Kotze, complaining about her conduct towards Miss Mooloo.

[31] The gist of this email, is Mrs. Mooloo's official grievance against Mrs. Josie. This was as a result of Mrs. Josie humiliating and ridiculing Miss Mooloo in front of her school mates and this was aggravating Miss Mooloo's psychological condition of anxiety. Further, that Mrs. Josie had been grading Miss Mooloo poorly and stated that she had heard that she is bright, but does not display this in the English class. In addition, Mrs. Josie had informed Mrs. Mooloo that Miss Mooloo had a problem with speech delivery, at which Mrs. Mooloo was taken aback, given Miss Mooloo's outstanding achievement in public speaking.

[32] According to Mrs. Josie, she informed Mrs. Kotze about the irregularities concerning Miss Mooloo in a letter dated 13 March 2018. (This letter, concerns mostly complaints about Mrs. Josie being victimised and not being recognized for her self-identified achievements). According to Mrs. Josie, her complaints about Miss Mooloo were ignored by Mrs Kotze. In the circumstances, she escalated this to Dr. Keskar and Mr. Bahadur by way of email on 25 March 2018. Mrs. Josie's evidence is that Dr. Keskar and Mr. Bahadur did not respond to her email.

[33] Mrs. Josie spoke to Dr. Keskar when he visited South Africa on 19 April 2018, and he indicated that he would refer the matter to the school to investigate. She further alerted him to other concerns, including that the first respondent employed foreigners. He offered no response. Her evidence was that a week later, she was suspended from work and notified to attend a hearing.

[34] The remainder of her evidence was that the suspension was unfair and she has lodged an unfair suspension dispute at the CCMA. During cross examination, she stated that she was not successful in her referral and had she had withdrawn the review application. Her evidence was that the disciplinary hearing was procedurally unfair; that she was not provided with information that she sought to prepare her case; that no evidence was led during the hearing; that the chairperson and Mrs. Kotze heard the evidence of Miss Mooloo in her absence. In addition, that after the chairperson recommended a final written warning, she was dismissed, this, after Mrs. Kotze sent to her an unsolicited settlement agreement, which she rejected.

[35] Given Mrs. Josie's pleaded case, the fairness or not of the disciplinary hearing relating to her misconduct and regarding the substituted sanction is not before this Court. Her evidence in this regard is therefore, irrelevant in relation to the issue that this Court is to determine.

[36] Mrs. Josie stated that in the light of her dismissal, she has difficulty finding employment as an educator.

Absolution from the instance:

[37] At the close of the applicant's case, the respondents applied for absolution from the instance. Mr. Bouwer contended that the applicant's case is at best, a grievance regarding harassment by a parent and no prima facie case is made out on dismissal for having made a protected disclosure. Further, that there was no evidence of any bribes for preferential treatment. Mr. Reddy opposed the application on the basis that the person who makes the disclosure believes that it is a protected disclosure; that shortly after the disclosure, the applicant faced a disciplinary hearing and the respondents have a case to answer.

[38] After hearing the very brief submissions for and against absolution, I ruled that the application is dismissed. I found that there was a prima facie case that this Court, in applying its mind reasonably to the evidence, could or might find for the applicant.[32] Following my ruling, the respondent led its witnesses.

[39] The evidence of Mrs. Kotze was that Mrs. Josie was subjected to a disciplinary hearing, based on the South African Council of Educators

(SACE) code of conduct, which code was applicable to the school and was recorded in Mrs. Josie's employment contract. Further, that Mrs. Josie was fairly dismissed for misconduct, following investigations by her after a number of complaints by parents to her on email, including a complaint by Mrs. Mooloo (this was in the period February to March 2018).[33] Her evidence was that parents had complained about Mrs. Josie's behaviour, which included humiliating children and threatening them with legal action for complaints made by their parents against her.

[40] In so far as Miss Mooloo was concerned, Mrs. Kotze said Miss Mooloo informed her that Mrs. Josie had read her mother's email out to the class and had questioned Miss Mooloo about the email - this caused emotional distress for Miss Mooloo. She saw Miss Mooloo, on the day this happened; she had run out Mr. Oube's class, he sent her to the backroom and later, to the office, where she sat crying and traumatized. Further, she denied that Miss Mooloo was given preferential treatment. As per the first respondent's assessment policy, when a child was absent from school, which Miss Mooloo was in March 2018 and hospitalized following the incident where Mrs. Josie read her mother's email out in the classroom, the child is given an opportunity to write the tests that were missed in a separate venue and is invigilated. Mrs. Josie conceded in her evidence, that she was aware of the school's policy in this regard and that her daughter had benefited from it.

[41] Mrs. Kotze's evidence was that Mrs. Josie also ridiculed other educators. Mrs. Josie had laid a complaint against Mrs. Kotze and other educators, which was investigated by SACE and instead, SACE saw it fit to charge Mrs. Josie for unbecoming conduct.[34] The charge against Mrs. Josie, dated 3 March 2021, reads as follows:

'It is alleged that during the academic year 2018 at or near Amity International School, Laudium, Gauteng, you acted in a disgraceful, improper and unbecoming manner not expected of an educator in that you made Amara Mooloo, a Grade 9B learner at the time at Amity International School to be intimidated and fearful by reading and making her answer to an email that was sent by her Mother in front of the learners in the classroom, in breach of the SACE Code of Professional Ethics'.

[42] When Mrs. Josie was cross examined, she presented herself to this Court, as an educator with an unblemished record, who had not at any stage, faced disciplinary proceedings.[35] When confronted with the aforementioned charge by SACE, Mrs. Josie stated that SACE did not look into her complaints but instead, levelled the allegation against her, 3 years later and that the allegation is malicious. That may be so, as far as she is concerned, but it is evidence that she is facing a disciplinary hearing, which she denied. This calls into question the applicant's credibility before this Court.

[43] Miss Mooloo's evidence was that she was a learner at the first respondent from 2017 until 2020. Mrs. Josie was her English teacher in grade 8, when she was 13 years old, turning 14 at the time. She stated that within a week of Mrs. Josie's arrival at the school, Mrs. Josie started making strange comments about her and said that her performance in English was "pathetic" and Mrs. Josie told her mother (Mrs. Mooloo) this. Mrs. Josie picked on her and singled her out.

[44] Miss Mooloo stated that Mrs. Josie had singled her out on one occasion about not handing in her assignment. She was distraught and reported this to the Life Orientation (LO) educator, and informed her about previous incidents. The LO educator advised Miss Mooloo to ask her mother to send an email to Mrs. Kotze. Miss Mooloo had informed her mother of all previous incidents and told her mother what to insert in her email to Mrs. Kotze. On receipt of the email,[36] Mrs, Josie entered the classroom, read out the email and asked the learners in an aggressive tone, in Miss Mooloo's presence, if it is true that she treated Miss Mooloo as was indicated in the email. Miss Mooloo felt embarrassed at the unprofessional conduct of Mrs. Josie. Her evidence was that Mrs. Josie turned the email on her to make her out as a liar. She was traumatized. Mrs. Josie came after her. She ran to Mr. Dube's class and he told her to go to the store room. She went there and burst out crying. Mr. Dube called Mrs. Kotze. She told them what had happened. She went to the office and sat in a corner on the floor, crying.

[45] With regard to Mrs Josie's email of 25 March 2018, at paragraph 6, where Mrs Josie records that Miss Mooloo is given special treatment Miss Mooloo said that this was untrue. Miss Mooloo stated that it was the school's and GDE's policy that when a learner is absent, you inform the school and return with a medical note. You are then permitted to write the tests you have missed and no textbooks are permitted. She explained that after the incident with Mrs. Josie, she did not want to go to her class; she was absent from school for a week and was hospitalized. After the incident when she was traumatized by Mrs. Josie reading out her mother's email to the class, she wrote a number of tests separately from the class as she had anxiety, which was aggravated by Mrs. Josie's conduct. After the incident, she was diagnosed with a depressive disorder, having been diagnosed with anxiety the previous year. Miss Mooloo confirmed that she testified in Mrs. Josie's disciplinary hearing and that she was distraught at the time. She further confirmed that she was testifying at the SACE hearing against Mrs. Josie in relation to her

unprofessional conduct of reading her mother's email in front of the class.

[46] Miss Mooloos' evidence was that Mrs. Josie made fun of other educators and threatened learners with legal action, informing them that her husband is an advocate. Mrs. Josie admitted to threatening children with legal action if they complained to their parents about her.[37] This, Mrs Kotze stated, was unbecoming conduct of an educator.

[47] Mrs. Botha's evidence was that she observed that Miss Mooloo was afraid of Mrs. Josie and due to her being a minor at the time, she heard her evidence in camera and had a one on one discussion with her. She confirmed that the hearing was fair and that Mrs. Josie was given a fair opportunity to state her case and defend herself. She confirmed her findings and decision and stated that she intended Mrs. Josie to be given another chance.

[48] In cross-examination, Mrs. Botha stated that the issue concerning the protected disclosure was mentioned during the hearing, but that the employer representative stated that it had been resolved; Mrs. Josie was unhappy with this and kept mentioning the protected disclosure, but did not state what it was. Mrs. Botha was referred to the Mrs. Josie's email at Bundle B, p 85, which according to Mrs. Josie, is the protected disclosure made by her. Mrs. Botha stated that the email looked familiar, that she looked at it, but could not recall and that Mrs. Josie "mumbled" about a protected disclosure.

Analysis

[49] Mrs. Botha was not a helpful witness, she was argumentative, defensive impatient and evasive about Mrs. Josie's mentioning a protected disclosure. Notwithstanding, Mrs. Josie did not put her version to Mrs. Kotze or Mrs. Botha, that she mentioned her protected disclosure during the hearing, and what she mentioned it as her defence. Mrs. Josie's version before this Court was not that her protected disclosure was her defence in her disciplinary hearing. From the information that she sought before the hearing, nothing turns on her defence of a protected disclosure. In Mr. Reddy's own words at the start of the applicant's case: "... the disciplinary hearing was not about a protected disclosure"[38] In the circumstances, I am not persuaded that Mrs. Josie was dismissed on account of having made a protected disclosure for the reasons mentioned below.

[50] Section 1 of the PDA defines a disclosure and a protected disclosure as follows:

"'disclosure' means any disclosure of information regarding any conduct of an employer, or an employee of that employer, made by and employee who has reason to believe that the information concerned shows or tends to show one or more of the following:

(a) that a criminal offence has been committed, is being committed or is likely to be committed;

(b) that a person has failed, is failing or is likely to fail to comply with any obligation to which that person is subject;

(c) that a miscarriage of justice has occurred or is likely to occur

(d) that the health or safety of an individual had been, is being or is likely to be endangered;

(e) that the environment has been, is being or is likely to be damaged;

(f) unfair discrimination as contemplate din the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act 4 of 2000); or

(g) that any matter referred to in paragraphs (a) to (f) has bee, is being or is likely to be deliberately concealed;

'protected disclosure' means a disclosure made to­

(a) a legal adviser in accordance with section 5;

(b) an employer in accordance with section 6;

(c) …

(d) A person or body in accordance with section 9..."

[51] According to Mrs. Josie, she made the disclosure to the employer.

[52] Section 6 of the PDA provides:

'6. Protected disclosure to employer

(1) Any disclosure made in good faith -

(a) and substantially in accordance with any procedure prescribed, or authorised by the employee's employer for reporting or otherwise remedying the impropriety concerned; or

(b) to the employer of the employee, where there is no procedure as contemplated in paragraph (a),

is a protected disclosure'.

[53] An 'occupational detriment' is defined[39] as:

'(a) being subjected to any disciplinary action;

(b) being dismissed, suspended, demoted, harassed or intimidated;

(c) being transferred against his or her will;

(d) being refused a transfer of promotion;

(e) being subjected to a term or condition of employment or retirement which is altered or kept altered to his or her disadvantage;

(f) being refused a reference, or being provided with an adverse reference, from his or her employer;

(g) being denied appointment to any employment, profession or office;

(h) being threatened with any of the actions referred to in paragraphs (a) to (g) above; or

(i) being otherwise adversely affected in respect of his or her employment, profession or office, including employment opportunities and work security'.

[54] There is no evidence before this Court as to whether or not the first respondent has a prescribed policy for making protected disclosure. Mrs. Josie did not lead evidence on any policy in this regard. The evidence before this Court is that she made a disclosure to two members of the first respondent's board of directors. Her evidence was that her protected disclosure was ignored by them. Her evidence is contradicted by the documentary evidence before this Court that her complaint was received by them and Dr. Keskar stated that he would refer her complaint to the school's authorities to deal with.

Further, following her email of 2 April 2018 to Dr. Keskar thanking him for his intervention and that the matter was resolved, she asked him for minutes, the investigation report, etc. and he referred her to Mrs. Kotze. Once more, Mrs. Josie's credibility is called into question.

[55] In my view, Mrs. Josie's email of 25 March 2018, is a compliant by a disgruntled employee at the time; it was resolved, as was acknowledged by her in her email of 2 April 2018. The charges of misconduct levelled against Mrs. Josie arise from her conduct following the complaints by parents (and students) which prompted the investigation by Mrs. Kotze and culminated in the misconduct charges against her as per the notice of the disciplinary enquiry and suspension from duty. Her dismissal emanates from her conduct.

[56] In the light of the well-known Stellenbosch Farmer's Winery Group Ltd & Another v Martell & Cie SA & others[40] case, which sets out the manner in which a credibility finding is to be made where there are two mutually destructive versions, I find that Mrs. Kotze and Miss Mooloo were credible and reliable witnesses, whose evidence corroborated and is further corroborated by the documentary evidence before this Court. In view of my remarks above regarding the evidence of Mrs. Josie, I do not find that she is a credible and reliable witness. In the premises, I find that the respondents' version is more probable.

[57] Mrs. Josie has failed to prove that her dismissal is on account of her having made a protected disclosure. There is no evidence before this Court of a disclosure made in good faith by Mrs. Josie. Mrs. Josie failed to present any evidence whatsoever, regarding any bribery and corruption of Mrs. Kotze and other educators by Mrs. Mooloo or the Mooloo family. Her complaint therefore, does not fit into the definition of 'disclosure' as defined in the PDA. The evidence before this Court is that no contravention of any policy took place with regard to Miss Mooloo writing tests separately. Further, that Miss Mooloo suffered from anxiety. This was exacerbated by Mrs. Josie's conduct and resulted in Miss Mooloo being hospitalized and being absent from school.Consequently, she wrote tests on her return, separately and out of Mrs. Josie's classroom. This was conducted in terms of the first respondent's assessment policy. Mrs. Josie had much to complain about and this is evident in her letter of 13 March 2018 and email of 25 March 2018. She has, in an opportunistic manner, attacked a child's psychological condition, who was then, a minor, to advance a non-existent case of a contravention of a SAIS Policy, which she has not bothered to submit in evidence to this Court. Mrs. Josie took the opportunity to highlight in her evidence, what she said was a suicide note of a minor child whom she did not know, which in my view, was a very sensitive matter and wholly irrelevant to her case before this Court. Hers is a case of a former educator who was making the lives of her students and co- workers a misery with her egotistical complaints that fall way short of any protected disclosure.

Costs

[58] The conduct of the applicant in these proceedings is unbecoming and less than candid to say the least. I refer to paragraphs 42, 54 and 57 above in which I have set out her conduct before this Court. Her conduct, in summary, was dishonest and she aired sensitive issues in a woeful attempt to place herself on moral high ground.

[59] In the circumstances, as contemplated in section 162 of the LRA, I exercise my discretion to award costs against Mrs. Josie.

Order

[60] In view of the afore-going, the order is as follows:

1. The claim of an automatically unfair dismissal is dismissed.

2. The applicant is to pay the costs.

M. T. M. Phehane

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Adv. R. Reddy

Instructed by: Logan Naidoo & Associates

For the Respondent: Mr. H. Bouwer of Cavanagh & Richards Attorneys

[1] Act 66 of 1995, as amended.

[2] Applicant's closing arguments, p 1 (The paragraphs in the applicant's closing arguments are not numbered, and therefore make

referencing difficult).

[3] Applicant's closing arguments, p 15.

[4] Ibid, p 8.

[5] [2021] 6 BLLR 611 (LC)

[6] At para [40].

[7] Statement of claim, Bundle B, p20 (B20).

[8] Section 187(1)(h) of the Labour Relations Act, Act 66 of 1995, as amended, reads as follows: '(1) A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 or, if the reason for the dismissal is - … (h) a contravention of the Protected Disclosures Act, 2000, by the employer, on account of the employee having made a protected disclosure defined in that Act'.

[8] Section 187(1)(h) of the Labour Relations Act, Act 66 of 1995, as amended, reads as follows:

'(1) A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 or, if the reason for the dismissal is -

(h) a contravention of the Protected Disclosures Act, 2000, by the employer, on account of the employee having made a protected disclosure defined in that Act'.

[9] Transcribed record, Vol 1, pp 14 to 15; and B85.

[10] Ibid. Vol. 2, p 127.

[11] Statement of claim, para 1, B8.

[12] A28 to 29.

[13] B87.

[14] B88.

[15] B89 to 91. The applicant's inputs to the minutes appear at 892.

[16] B82 to 84.

[17] B93 to 95.

[18] The suspension letter appears at B96. The letter records that she is suspended for gross misconduct­ discussing confidential

information about colleagues and learners during teaching times; intimidation - threatening children with legal action; and misconduct - not teaching during allocated teaching hours.

[19] B109 to 110.

[20] B99 to 102.

[21] B106.

[22] B107.

[23] B108.

[24] B113 to122.

[25] B123 to 124.

[26] B125 to 127.

[27] B128 to 130.

[28] B132.

[29] A23.

[30] Transcribed record, Vol. 2, p 161 to 162.

[31] B57 to 59.

[32] McCarthy v Absa Bank Ltd 2010 (2) SA 321 (SCA); Septoo v City of Johannesburg (2018) 39 ILJ 580 (LAC) at para 15.

[33] B64 to 80 and B57.

[34] C3.

[35] Transcribed record, Vol.2, p 81, lines 20 to 25.

[36] B57.

[37] Transcribed record, Vol. 2, p 106, lines 5 to 25 and p 107, lines 1 to 2.

[38] Transcribed record, Vol. 1, p 3, lines 1 to 7.

[39] Section 1 of the Protected Disclosures Act.