The Western Cape education department has been ordered to pay a teacher R77,515.60 before the end of August after she succeeded in getting unfair disciplinary sanctions against her overturned.
Yoliswa Seula Gwebushe was found guilty of hitting two of her grade 3 pupils, and kicking one of them out of class for two days and was given a fine and issued with a final written warning.
Gwebushe told Education Labour Relations Council commissioner Gerald Jacobs she believed she had been the victim of unfair labour practice and wanted the sanction against her set aside and compensation for the unfairness.
Gwebushe has worked as a teacher at Nomlinganiselo Primary School for 16 years. At the time of the incident, she was serving as a department head.
After a string of incidents at the school she was charged with misconduct after it was alleged that she assaulted learner A, a boy in grade 3, by hitting him on the back of the head with a flat hand on April 19 2023.
In a second case reported a month later, she is alleged to have hit learner B, in grade 3, with a board duster on his hand.
Gwebushe was also charged with preventing learner C from attending class on August 30 2023 and learner A from attending class “on or about August 31 or September 1 2023”.
Gwebushe pleaded not guilty and consistently denied any wrongdoing throughout the proceedings.
In February last year Gwebushe was found guilty on all three counts. The presiding officer found that the assault incidents were not traditional corporal punishment but rather acts of violence, and that stopping children from attending class had violated their right to basic education.
Gwebushe was issued a fine equal to 75% of one month's salary, with 25% suspended for five years. She was also given a final written warning that would be valid for six months.
Gwebushe appealed the matter to the Western Cape education MEC. The matter was dismissed with the MEC upholding the findings and increasing the sanction to her having the deduction of a full salary in two instalments.
Dissatisfied, Gwebushe referred her case to the ELRC.
She called three witnesses — two other children who were present in her class when the alleged assaults happened, and the school secretary.
Gwebushe denied striking the boy. She said he had arrived at class crying, accompanied by the school secretary and claimed that she had hit him for not remembering a story titled “The Sun and the Wind'
In the first incident, Gwebushe was alleged to have struck learner A on the back of the head while he was handing a pencil to another classmate. The impact caused his face to hit the desk and his nose to bleed. The child told his grandmother what had happened, and she told his mother, who reported it to the principal.
Gwebushe denied striking the boy. She said he had arrived at class crying, accompanied by the school secretary and claimed that she had hit him for not remembering a story titled The Sun and the Wind.
Gwebushe maintained that no such assault took place and argued that inconsistencies in learner A’s version were ignored at the disciplinary hearing.
Charge two was that Gwebushe had struck learner B three or four times on his right-hand knuckles with a wooden board duster after he failed to answer a question. This had caused swelling and learner B was kept out of school the following day.
Gwebushe said there was no duster in the class as she used a whiteboard and had a cloth to clean it. She said that if she had hit learner B, there would have been witnesses — but nobody had corroborated his story.
The boy was absent the next day, and she asked the boy's mother about it and was told that his father had taken him to the doctor. However, at the disciplinary hearing the mother said she had treated the boy's injury herself and under cross examination admitted that her claim that he had been taken to the doctor had been made as a joke.
In response to charge three — that she had barred learner C from attending class as a punishment for chewing gum — Gwebushe admitted that she had sent the boy out, but not as a punishment. She said the boy tended to fall asleep during lessons and that day she had told him to step outside for a short while to get some fresh air and come back. Her actions, she said, were supportive and not punitive.
When charged with barring learner A from attending class on two consecutive days, she maintained that the boy had not attended school at all on those days and presented attendance records as proof.
She said the boy had a long-standing pattern of frequent absenteeism, and she had engaged both his mother and the school-based support committee to address this. She pointed out that during a visit by the department of education, the learner had to be fetched from home, further evidence that his absenteeism was habitual.
Two children testified that they had been in class on the day Gwebushe was alleged to have hit learner A on the head. Both said they never witnessed such an incident, though one said she had seen him crying but didn't know why he was upset. The other learner had not seen this, but said learner A regularly cried in class when he didn't know the answers to questions.
Both children testified that they had never seen Gwebushe hit any children and that she did not use a board duster in class. Neither had ever witnessed Gwebushe sending children out of class for chewing gum.
School secretary Primrose Mbambo recounted how she had once been asked to take learner A to his class. She had escorted him, knocked on the door, and Gwebushe had allowed him back into the classroom.
She said learner A did not appear upset, injured or distressed at the time.
Learner A told the hearing that he experienced his teacher as having a mixed personality — sometimes kind and other times harsh.
He claimed that after she hit him, his nose had bled and class assistants were called to clean him up. He said he had told his granny what happened that afternoon after she saw blood on his tracksuit. The next day he went with his mother to show the jacket to the principal and report the matter.
Explaining the two days he was allegedly kicked out of class, he said he had been locked in the toilet by a friend at about 10am. When he arrived at class late, Gwebushe accused him of lying and sent him out.
He said when he returned to school the next day she had told him he was lazy and a liar, so he left school even though he knew this was against protocol.
Learner B said Gwebushe had hit him with a wooden duster with a green underside after he failed to answer a question.
At break time he went crying to his mother who worked in the school kitchen. He had heard her confront his teacher, but couldn't hear what was said. He had not gone to school the next day.
He later contradicted his evidence of the duster. A second contradiction happened when he claimed his teacher had apologised to his mother after earlier claims he couldn't hear what was said.
Learner C described his relationship with Gwebushe as a mix of playful and disciplinary. He stated that she usually hit him, specifically with a wooden duster which she used to hit children.
The principal confirmed that learner A's mother had reported that her son had been hit on the head and suffered a bloody nose, but that he did not observe any physical evidence of injury or a jacket with blood stains
He claimed she threw him out of class at about 1pm one day after catching him chewing gum. He left the class but returned to apologise and Gwebushe had told him to sit down. He referred to other incidents of being told to go outside after falling asleep in class, admitting he had never reported this.
He would go and wash his face when he was sent out of class and said Gwebushe was generally lenient when he fell asleep in class.
The principal confirmed that learner A's mother had reported that her son had been hit on the head and suffered a bloody nose, but that he did not observe any physical evidence of injury or a jacket with blood stains.
He also confirmed that learner B’s mother reported the incident to him and that he escalated it to the department.
Learner B's mother said she treated her child's injury herself at home and kept him home from school the after day. Under cross examination she could not remember which hand had been injured, and could not say why she joked about taking her son to hospital under such serious circumstances.
Jacobs found learner A to be a nervous witness whose “anxiety appeared to stem from a concern about providing the correct answers, rather than simply recounting his own experience”.
His version differed markedly from two classmates who denied the alleged assault.
Jacobs found that Gwebushe's version, while self-serving, was consistent, aligned with the child witnesses and was indirectly supported by the principal and secretary. There was no corroborating physical evidence such as a bloodied jacket or a physical injury.
Jacobs also found it unlikely that Gwebushe could have violently assaulted learner B and not have the attack corroborated by a single witness, finding his injury was more likely to have happened outside class.
Jacobs found that the one-month's salary fine was unjustified and ordered the department to refund this money to her.
Considering the “substantive unfairness of the department’s conduct, as well as the reputational, professional, and financial prejudice” Gwebushe had suffered, he ordered that she be compensated with a payment equal to a month's salary.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.