Wesley Neumann braces for another WCED court battle

THE Western Cape Education Department’s (WCED) decision to apply for leave to appeal the Labour Court ruling ordering Wesley Neumann’s reinstatement is in keeping with their approach to the dispute, and engaging in litigation to delay and frustrate Neumann, says his legal representative.

Attorney Vernon Seymour said he was not surprised. 

“They have the right to appeal and they have exercised that right. It doesn’t mean that there is any merit to the appeal. 

“It is in keeping with their approach to the dispute. They have on numerous occasions 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.”

Seymour said he has been instructed to oppose the appeal and will file opposing notice today.

“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.”

Neumann was dismissed by the WCED after refusing to reopen the school at the height of the Covid-19 pandemic in 2020, in line with calls by the school's community at the time. The school remained open and teachers reported for duty, except in cases where they had comorbidities. 

After years in and out of court, the Labour Court recently ordered the WCED to reinstate Neumann, finding him not guilty on all but one charge. It concluded that the dismissal was not an appropriate sanction.

The WCED said it had on Friday filed an application for leave to appeal.

“The filing of this application suspends the order to reinstate Mr. Neumann as principal of Heathfield High School,” Education MEC David Maynier said.

In its application, the WCED argues that the court committed “multiple legal and factual errors” in reviewing the Education Labour Relations Council’s arbitration award.

The WCED says 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. They also argue 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,” Maynier said. 

The WCED also believes the court erred in finding that Neumann was not responsible for making an “offensive” letter public. 

“Employees owe employers duties of respect and subordination. While the court held that 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 WCED maintained that the court made “several factual errors, including mischaracterising disputed safety concerns as undisputed, relying incorrectly on a death that occurred after Neumann’s misconduct, and incorrectly finding that Neumann had permission to withhold forms permitting parents to apply to exempt learners from attending school during the pandemic”. 

The WCED says 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.”

Special Action Committee Education (SAC-E) chairperson Terrence Smith said the WCED’s appeal decision was “deeply disappointing and troubling”.

“At the outset, SAC-E rejects the WCED’s claim that merely filing an application for leave to appeal automatically suspends the court order. 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 February 2.”

“SAC-E is further concerned that public funds continue to be spent on prolonged litigation instead of being directed to classrooms, learner support, and school improvement. This matter could and should have been resolved long ago.”

Cape Times