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De Jure

versión On-line ISSN 2225-7160
versión impresa ISSN 1466-3597

De Jure (Pretoria) vol.46 no.1 Pretoria jun. 2013

 

ARTICLES

 

Educational law in democracy - Who guards the guardians? Freedom of expression and whistle-blowers - A personal narrative

 

Wie Bewaak die Bewaarders? Vryheid van Uitdrukking en Verklikkers - 'n Persoonlike Verhaal

 

 

Justus Prinsloo

Senior Researcher, Faculty of Education, University of Pretoria

 

 


OPSOMMING

Die bespreking van die opvoeder se reg op vryheid van uitdrukking in hierdie artikel spruit voort uit 'n departementele tugverhoor wat werklik plaasgevind het. Die opvoeder het, aldus die klagstaat, met die pers gepraat oor 'n voorval wat by die skool plaasgevind het. Die Departement beweer dat die opvoeder nie met die pers mag praat sonder die toestemming van die Departement nie. Hy sou dan ook nie sodanige toestemming gehad het nie. Tydens die verhoor het die skrywer as vakbondverteenwoordiger namens die opvoeder gepoog om die voorsittende beampte te oortuig dat die geldigheid van die klagtes oorweeg moet word in die lig van die opvoeder se reg op vryheid van spraak, welke reg nie willekeurig deur amptenare van die Departement beperk kan word nie. Dit sou beteken dat dit geldige aanklagtes moet wees. Hierdie verweer was nie suksesvol nie. Die aandag van die voorsittende beampte is ook gevestig op nuwe kinderwetgewing wat die beskerming van kinders vereis en die aanmelding van bepaalde oortredings verpligtend maak vir opvoeders. Die voorsittende beampte kon dit aanvaar, maar alleen aanmelding aan die polisie maar nie aan die pers nie. 'n Laaste poging is aangewend deur die voorsittende beampte se aandag te vestig op die voorskrifte van die Wet op Beskermde Bekendmakings 26 van 2000, wat die werkgewer gebied om, onder omstandighede waar aan die vereistes van die Wet voldoen is, 'n werknemer wat so 'n bekendmaking doen, te beskerm en verder die werkgewer verbied om die werknemer aan beroepsnadeel te onderwerp, wat in hierdie geval 'n skorsing en tugverhoor behels het. Ook hierdie poging was onsuksesvol. In die loop van die bespreking word ook melding gemaak van die basiese vereistes vir 'n billike verhoor wat verontagsaam is en wat buitendien daartoe behoort te lei dat die verrigtinge op appèl ter syde gestel behoort te word.


 

 

1 Introduction

In the following discussion, I deal with the powers and duties of employers of educators when dealing with misconduct and disciplining of educators. The discussion not only sets out to deal with the narrow technical parameters of the disciplinary process, but also seeks to show that departmental officials need to be aware of the broader set of Constitutional rights and duties of educators that also impacts on the conduct of both the employer and the employee. The narrative will deal with the proceedings of an actual disciplinary hearing that took place. The article proposes to show what the legal requirements of a fair hearing are and to what extent these were not complied with during the hearing, resulting in a failure of justice. The narrative will follow and deal with the hearing and the procedural and legal issues, as well as many irregularities, as they unfold.

1 1 Charges of Misconduct Against an Educator Speaking to the Press

In the real life example that will be discussed below, the educator in question, a deputy principal of a public school (a public servant occupying a managerial position at the school), was charged with three counts of misconduct. It is alleged in the preamble to the charges that he is charged with misconduct for bringing the department into disrepute as set out in the three charges. Two of the charges allege that he contravened section 18(1 )(f) of the Employment of Educators Act 76 of 1998, and the third charge alleges that he contravened section 18(1)(i) of the Employment of Educators Act1 (the EEA).

Charges 1 and 2 allege that he unjustifiably prejudiced the administration, discipline or efficiency of the department of Education, an office of the state or a school, when he contacted the media and disclosed an incident involving a male learner at the School, which was published in two newspapers, without the consent or permission of the employer.

Charge 3 alleges that he failed to carry out a lawful order or routine instruction without just or reasonable cause when he contacted the local newspaper and disclosed an incident involving a male learner at the school without the consent or permission of the employer. The actual reason for using both terms "consent" and "permission" was never dealt with by the department during the hearing. This is the actual terminology used in the charge and appears to refer to some or other policy of the department which will be referred to and discussed in more detail later on.

When the educator received the charges, he requested his union to represent him at the hearing. This I undertook and that is how the particulars of the case came into my possession.

At the hearing, the educator testified that he had raised the issues that formed the basis of the charges against him at the school before, and that they were not dealt with. He testified that the principal was even present at the latest incident. He reported the incident to the Child Protection Unit (CPU) which referred him to the South African Police Service (SAPS). In view of his previous experiences of the lack of action, he went to the media. All of this was accepted by the departmental representative and even by the presiding officer who, in his findings, ventured the opinion that the educator should have returned to the CPU to establish whether or not they were actually doing their work.

The evidence given by the educator on his own behalf, indicating why he acted in the manner he did, was not seriously challenged by the department, except for harping on the consent (or permission) issue end getting him to repeat that he knew about the policy. He was also once again admonished because he had spoken to the press and told that he should have heeded the warning given to him after the first incident not to do so again.

At the conclusion of the hearing, the educator was found guilty by the presiding officer on all three charges. The sanction that was imposed was that he be demoted from the rank of deputy principal to the rank of a post level 1 educator. He was also to be removed from the School Management Team (SMT) - a structure that normally comprises the senior staff of a school. The written notice containing the finding and the sanction informed him of his right to appeal against the finding and the sanction within five working days after receiving the notice. This was duly done within the stipulated time. The outcome of the appeal is still being awaited.

1 2 Misconduct

The EEA does not deal with the concept of misconduct under the definitions listed in section 1 of the Act. Sections 17 and 18 of the EEA, however, contain a list of acts and omissions which constitute "misconduct" for the purposes of the EEA. Also, section 18(1) refers to misconduct as "... a breakdown in the employment relationship and [that] an educator commits misconduct if he or she commits" any of a long list of possible acts of misconduct. It is interesting to note that section 17(1) which deals with serious misconduct leading to dismissal, does not contain the same wording as section 18(1) with regard to the breakdown of the employment relationship.

When an educator is charged with misconduct, the EEA requires the employer to give written notice of the proceedings and the notice must contain a description of the allegations of misconduct and the main evidence on which the employer will rely.2 Item 3(1) of Schedule 2 to the EEA incorporates the Code of Good Practice of the Labour Relations Act3 (the LRA) into the EEA as far as it relates to discipline and it constitutes part of the Disciplinary Code and Procedures contained in Schedule 2 to the EEA. The conduct of an educator which may warrant disciplinary action is listed in sections 17 and 18 of the EEA.

The incorporation of the Code of Good Practice of the LRA into the EEA as far as it relates to discipline, has, amongst other things, important implications with regard to the charges of misconduct as well as the nature of the disciplinary proceedings.

In the case of disciplinary proceedings, the civil onus for the discharging of the burden of proof applies, and that is proof on a balance of probabilities - that is to say that the educator has committed any of the acts of misconduct contained in the charge sheet. This is trite, as is the fact that the employer, in this case a provincial department of education, bears that onus. This is the conventional onus of proof. However, it also implies that whatever it is that the employer alleges the educator to have done, all the essentials of such charges should be set out in the charge and must then be proved on a balance of probabilities in the course of a proper and fair hearing. These essentials also lie at the heart of the right to fair labour practices which is a fundamental constitutional right.

1 3 The Bill of Rights: The Right to Fair Labour Practices

In terms of section 23(1) of the Constitution of the Republic of South Africa, 1996, everyone has the right to fair labour practices.

To give effect to these rights, the LRA was enacted, and one of the purposes of the LRA is to give effect to and to regulate the fundamental rights conferred by section 27 (the LRA still refers to section 27 as it was in the so-called interim Constitution of 1993) of the Constitution, and that is the right to fair labour practices.

When dealing with the concept of "fair labour practices", or rather with the concept of "unfair labour practices", we find this concept of "unfair labour practice" defined in section 1 86(2) of the LRA:

... meaning any unfair act or omission that arises between an employer and an employee involving -

(a) ...

(b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee; ...

At the heart of a charge of misconduct lie the requirements set out in paragraph 7 of Schedule 8 to the LRA, the Code of Good Practice: Dismissal, referred to above, namely:

Any person who is determining whether a dismissal for misconduct is unfair should consider:

(a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace

(b) if a rule or standard was contravened, whether or not:

(i) the rule was a valid or reasonable rule or standard;

(ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;

(iii) the rule or standard has been consistently applied by the employer;

(iv) dismissal was an appropriate sanction for the contravention of the rule or standard.

As set out above, The Code of Good Practice: Dismissal, constitutes part of the Disciplinary Code and Procedures for Educators in the Schedule to the EEA. This latter Code and Procedures require written notice to be given of the hearing, which includes a description of the allegations of misconduct and the main evidence on which the employer will rely. Most of these requirements were not complied with by the employer before the hearing.

1 4 A Valid or a Reasonable Rule or Standard

It is implicit in these instructions in the Code and Procedures laid down in the EEA, that the allegations of misconduct must be based on a valid or a reasonable rule or standard as set out in paragraph 7 of Schedule 8 to the LRA. It is also implicit in these instructions that the legal basis underlying the power of the employer to issue instructions requiring the consent or permission of the employer to speak to the press (in the case under discussion) should be set out in these charges. The charges referred to above, do not contain any such information. The documents containing these powers and instructions, were at no stage disclosed or provided at the hearing. These are issues that can be dealt with in limine at the start of the disciplinary proceedings and should be dealt with by the presiding officer before allowing the hearing to continue. These issues were raised by the union representative at the start of the proceedings.

It was argued by the union on behalf of the educator, that:

(a) the operative part of charges 1, 2 and 3, requiring the consent or permission of the employer to contact the media and to disclose an incident at the school, inasmuch (as far as it could be established at that time) as it is based on an alleged policy dealing with authority for officials to speak to the media, make comments or issue written statements, does not constitute a valid rule or standard which can form the basis of a charge of misconduct. In any event this document or policy was not produced and proven at the hearing.

(b) The principal of the school testified at the hearing and said that the staff was told at a meeting about such policy but that she had not even seen such a policy or could not produce such a document at the hearing. She told her staff about the prohibition and repeated it after the first report appeared in the newspaper. The department, however, did not produce any such document at the hearing either. In his judgement the presiding officer dealt with this Policy as if he could take judicial notice thereof - which he in fact seemed to do. The evidence given by the educator on his own behalf indicating why he acted in the manner he did, was not seriously challenged by the departmental representative, except for getting him to repeat that he knew about the policy and being once again admonished that he should not have spoken to the press and that he should have heeded the warning given to him not to do so again.

1 5 The Bill of Rights, Education, Democracy and Values

This special edition of De Jure deals with Education Law in a Democracy. It will, therefore, be necessary to examine how the introduction of a new and democratic Constitution has enabled important fundamental constitutional protections to become part of the country's legal fabric.

Section 1 of the Constitution proclaims the Republic of South Africa as one sovereign democratic state, founded on certain values. As far as the Bill of Rights is concerned, section 7 of the Constitution provides that:

(1) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.

(2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights.

(3) The rights in the Bill of Rights are subject to the limitations contained or referred to in section 36, or elsewhere in the Bill.

In terms of section 8(1) of the Constitution, the Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state. Without any doubt, therefore, these provisions cover the department of Education, its officials and employees as well as the laws introduced above.

How then, should the State and its officials go about their business in this democratic constitutional context?

Albertyn and Davis4 examine how the ascendancy of a liberal democratic constitution has enabled important democratic protections and transformative judgements. The authors point out that Dugard realised this in 1977 when he noted that a Bill of Rights would enable a post-apartheid government to restore respect for the law and legal institutions in circumstances where these had been used as instruments of oppression.5 This, we would argue and add, applies in equal measure to employers and employees in education.

Albertyn and Davis emphasise6 the central role of the Bill of Rights in a democracy and state that the establishment of a constitutional democracy placed the Bill of Rights at the centre of legal and political power in South Africa. According to s 7(1) of the Cons