WCED challenges Labour Court ruling on Wesley Neumann's reinstatement

The Western Cape Education Department (WCED) is seeking to appeal a Labour Court ruling that overturned the dismissal of Wesley Neumann, the former principal of Heathfield High School, and instead issued him a final written warning.

Mr Neumann was dismissed in 2020 after dedicating himself to keeping the school closed due to safety concerns during the COVID-19 pandemic and faced misconduct charges.

In response, the Special Action Committee – Education (SAC-E) said it rejects the WCED’s claim that merely applying for leave to appeal automatically suspends the court order, citing that it was misleading and created confusion in the public domain. ("Labour court reinstates Wesley Neumann as principal of Heathfield" January 5).

In a statement issued and court documents shared, Education MEC David Maynier said: “The filing of this application suspends the order to reinstate Mr Neumann as principal of Heathfield High School."

Mr Maynier said in their application that they 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, he said: "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."

He added that 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,” Mr Maynier explained.

“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.”

Mr Maynier said that 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,” he stated.

It was argued that the court made several factual mistakes. These included treating disputed safety concerns as if they were agreed facts, relying on a death that happened after Mr Neumann’s alleged misconduct, and wrongly finding that he had permission to withhold exemption forms needed by parents during the pandemic. The court also concluded that disciplinary action was applied unfairly, despite there being no evidence of unequal treatment in similar cases.

Mr Maynier added that 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,” he said.

The Special Action Committee (SAC) said in response to the claims, on behalf of Mr Neumann: “At the outset, SAC rejected the WCED’s claim that merely applying for leave to appeal automatically suspends the court order,” it said.

“This assertion is misleading and creates confusion in the public domain. The Labour Court issued a clear ruling, and until a court orders otherwise, that judgment stands. SAC therefore firmly believes that Mr Neumann must return to his rightful position at Heathfield High School on Monday, February 2.

“Wesley Neumann must be allowed to return to his rightful position on Monday, February 2, in the interests of justice, stability, and the school community,” it added.

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