Weekend Argus (Saturday Edition)
State bullies ‘should be in dock’
Mediation could have resolved case
BASED on the rule of law and legal principles which apply to the facts of the Brian Isaacs case, the recommendation by the presiding officer of a disciplinary hearing to dismiss Isaacs, the principal of South Peninsula High School, is unfair and malicious and stands to be overturned by an independent third party or arbitrator.
The charges should never have been filed in the first place, but an adversarial approach was pursued with vigour, when alternative options existed to address issues of concern.
This suggests an element of mischief and a lack of strategic nuance by officials with decisionmaking power in the Western Cape Education Department.
The facts of the case involving Isaacs and the department have raised a number of complex issues in the context of constitutional democracy.
Charges one and two relate to a verbal exchange between Isaacs and two colleagues from the department. Isaacs and his witness, a staff member, denied he said anything offensive to the officials.
The hearing heard these officials had conducted themselves unprofessionally. This demonstrates there are conflicting versions.
The Supreme Court of Appeal, in the case of Stellenbosch Farmers Winery Group Ltd and Another v Martell Et Cie and Others 2003 (1) SA 11 (SCA) at 14I-15E, approved this approach: “The technique generally employed by courts in resolving factual disputes of this nature may be conveniently summarised as follows. To come to a conclusion on the disputed issues the court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. ... As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues ...”
Without either objective facts, or applying the mutually destructive versions test, as required by the Supreme Court of Appeals, the presiding officer decided to accept the version of the two complainants. Even if it were true Isaacs referred to colleagues in the mildly inappropriate terms outlined in the charge sheet this can’t constitute a basis for a fair dismissal.
This is a trivial complaint and mediation to resolve the disagreement was possible, yet officials favoured an iron-fisted approach.
Structural violence is a feature of this case. The power imbalance and use of state power against an individual employee lies at the heart of the arrogance of officials from the department. From information presented, these officials use kragdadigheid as a standard approach.
As a result of the superiority of state resources at their disposal, they are able to “win” cases against employees. So educators cave in not through guilt, but primarily because they do not have the financial and emotional resources to strike at a power structure loaded with heavy weapons.
Information provided by the Progressive Principals Association reveals deep resentment and unhappiness at what is seen as persistently unfair conduct of officials within the Labour Relations Unit of the department.
The circumstances beg an independent analysis of the behaviour of these officials to determine the extent to which they have conducted themselves inappropriately and abused power.
Isaacs is a man of integrity who has challenged the wider power structure occupied by bullies on the payroll of the state. Should this case proceed to the next level, those officials who behaved as schoolyard bullies will be exposed.
This case, we suspect is part of the underlying need to teach Isaacs a lesson so his critical voice can be subdued.
Alternative charges four and five relate to two news articles. These charges involve a freedom of expression right that contains two elements: the allegations of false evidence or statement; and bringing the name of the employer into dispute.
The record from the presiding officer and evidence show the employer presented no objective and factual evidence to support the allegation.
This is a fundamental weakness of the case against Mr Isaacs – the absence of evidence and facts to support the department’s case.
The onus to prove a charge rests with the employer. Labour law in disciplinary proceedings posits the employer – not employee – bears the burden of proof.
The department did not prove its case. Instead after the allegations were presented, the presiding officer placed the burden of proof on the employee, Isaacs, to disprove the allegations.
Isaacs and his witnesses provided substantive facts to oppose the charges presented.
When Isaacs was inexplicably found guilty, a significant body of evidence was presented to oppose the sanction of dismissal. The mitigation witnesses including representatives from the Progressive Principals Association, the school governing body, pupils, parents, the wider community and support committee as well as a labour law and mediation expert.
All pointed out Isaacs had spent his life dedicated to the development of quality education, and not only at South Peninsula High School.
These witnesses testified Isaacs was regarded as an icon and beacon of hope across the Western Cape and South Africa. Consistently great academic results of the school bear testimony to his ethical leadership and commitment to excellence. Isaacs has a 40-year service record, 32 of those as a principal. Relevant case law includes, but is not limited to the seminal case: Edcon Ltd v Pillemer NO (Reddy), which emphasised an employer must put forward evidence to sustain the allegation dismissal was, in fact, an appropriate sanction. ([2010] 1 BLLR 1; 2009 30 ILJ 2642 (SCA).
The department failed to do so. The presiding officer ignored vital evidence, failed to impartially evaluate the full spectrum of evidence and trivialised and distorted key components to justify his dismissal recommendation.
Isaacs will be victorious at any independent level based on the facts of the case, the flimsy evidence presented by officials and the very nature of the charges against him.
Marinus is chairman of the South Peninsula High School Community Support Committee.