The Western Cape Education Department (WCED) has filed an application for leave to appeal the decision of the Labour Court concerning Wesley Neumann’s dismissal.

Earlier this month, the Labour Court ruled that the Heathfield High School principal should be reinstated, overturning his dismissal for refusing to reopen the school amidst the first wave of the Covid-19 pandemic in 2020.

The MEC of Education, David Maynier, says their application for leave to appeal now suspends that order to reinstate Neumann.

In the WCED’s application, they argue that the Court committed multiple legal and factual errors in reviewing the Education Labour Relations Council’s (ELRC) arbitration award.

The application includes submissions that 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. The WCED says the ELRC arbitrator’s finding that the dismissal was fair was indeed a reasonable outcome.

The Department also argues that the Court applied an incorrect legal test when assessing whether 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.”

 

Further, the WCED believes that the Court erred in finding that Neumann was not responsible for making his offensive letter public.

The Department says the ELRC arbitrator had rejected 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.

“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 Department states that the Court also 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”. Mr. Neumann had breached his central or core constitutional and contractual obligation to provide teaching and learning to children.”

Maynier says they 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.”