31 October 2008
The former headmaster of Riebeeckstrand Intermediate School in Melkbosstrand, who was accused of financial irregularities and of sexually harassing a teacher, has lost a Cape High Court challenge against his dismissal on technical grounds.
The court found that the headmaster, Andre de Villiers, should have taken his case to the Labour Court. De Villiers was suspended as headmaster in October 2003 after he was accused of harassment.
A disciplinary hearing was held and, in his absence on November 3, 2004, he was found guilty of sexual harassment, crimen injuria and financial irregularities for renting out property for which he received a housing subsidy. He was dismissed.
De Villiers took the matter further by instituting arbitration proceedings, and in February 2006 an arbitrator found that his dismissal was procedurally and substantially unfair.
The arbitrator ordered that De Villiers be reinstated on the same terms and conditions as prior to his dismissal.
In August 2006, the head of the education department instructed De Villiers to report to Elswood Secondary School in Elsies River.
But, after seeking the advice of his trade union, he did not report at that school. He believed that he should have been reinstated in the same position, and not transferred to another school.
This prompted the education department to discharge him in terms of the Employment of Educators Act, on the grounds that he was absent without permission for more than 14 days. He applied to be reinstated but the head of the department declined the application.
De Villiers then took the case to the Cape High Court and lodged an application in terms of the Promotion of Administrative Justice Act (Paja), for review of the department's decision.
The application was lodged against the Western Cape Education MEC and the head of department.
In a statement before the court, De Villiers said he was under the impression that he would return to Riebeeckstrand Intermediate School.
But when it became evident that he would be transferred to another school, he went to his trade union for advice because he did not have the emotional and mental strength to continue fighting on his own.
The head of the department alleged that the High Court did not have the jurisdiction to consider the case since the refusal to reinstate him was taken by the department, as an employer. It therefore did not constitute administrative action in terms of the Paja, the department alleged.
Judge Dennis Davis found that De Villiers's discharge was capable of being tested against the Code of Good Practice in the Labour Relations Act.
He ruled that De Villiers chose the incorrect forum in which to launch the proceedings, and that the Labour Court had the exclusive jurisdiction to determine the outcome of the application. Justice Rosheni Allie agreed.
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