The Western Cape Education Department (WCED) has on Friday filed an application for leave to appeal the decision of the Labour Court with regards to Wesley Neumann’s dismissal.
Bush Radio News previously reported that the Labour court
ruled that the Heathfield High School principal should be reinstated,
overturning his dismissal for refusing to reopen the school during the
coronavirus pandemic in 2020.
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SUPPLIEDWestern Cape Education MEC, David Maynier, says their
application for leave to appeal now suspends that order to reinstate Neumann
‘’In our application, we argue that the Court committed
multiple legal and factual errors in reviewing the Education Labour Relations
Council’s arbitration award.’’
The application includes the following submissions:
·
The Court failed to apply the review test
correctly, which requires asking whether the ELRC arbitrator’s decision was one
that a reasonable decision-maker could reach. On the facts and law, the ELRC
arbitrator’s finding that the dismissal was fair was indeed a reasonable
outcome.
·
The Court applied an incorrect legal test when
assessing whether Mr. Neumann’s statements were racist in nature. The correct
test was whether, objectively, the words – “Baaskap” and “pre-1994” – were
reasonably capable of conveying to the reasonable hearer that the phrases had a
racist meaning.
·
The Court erred in finding that Mr. Neumann was
not responsible for making his offensive letter public. The ELRC arbitrator had
rejected Mr. Neumann’s version as not credible, and such credibility findings
should not lightly be overturned by a review Court that did not hear the
evidence firsthand.
·
Employees owe employers duties of respect and
subordination. While the Court held that Mr. Neumann’s conduct was protected by
freedom of expression, the Appeal Court should consider the limits of free
speech within the context of an employment relationship.
·
The Court made several factual errors,
including mischaracterising disputed safety concerns as undisputed, relying
incorrectly on a death that occurred after Mr. Neumann’s misconduct (the
individual concerned indeed testified during Mr. Neumann’s misconduct hearing),
and incorrectly finding that Mr. Neumann had permission to withhold forms
permitting parents to apply to exempt learners from attending school during the
pandemic. The court also wrongly concluded that discipline was selective,
despite there being no evidence of unfair different treatment in comparable
cases.
·
The Court incorrectly found that the Department
did not lead any evidence on the issue of reinstatement not being an
appropriate remedy. There was evidence that the employment relationship had
reached a point of "irretrievable" and "irreparable
breakdown".
According to Maynier, Neumann had breached his central or core constitutional and contractual obligation to provide teaching and learning to children.
‘’We will remain focused on the best interests of the
learners of Heathfield High School. The school is flourishing and has just
produced a matric pass rate of 89.9% – the school’s highest in 15 years. Any
attempt to disrupt this progress or interfere with teaching and learning will
not be tolerated,’’ warned Maynier.
Bush Radio News reached out to Neumann’s lawyers who said
the following: ‘’ They have the right to appeal and they have
exercised that right. It doesnt mean that there is any merit to the appeal. I am
not surprised because it is in keeping with their approach to the dispute. They
have on numerous ocassions engaged in litigation which sought to delay and
frustrate Mr. Neumann in his efforts to seek justice. That is the reason why
the case took so long. i have been instructed to oppose the appeal and will
file my opposing notice on Monday. I am also exploring other legal options to
secure Mr Neumann s return to his job as Principal of Heathfield High as
ordered by the Labour Court,’’ said Vernon Seymour, SAC-E legal representative.
Done by: Mitchum George
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