Case Number: PSES378-11/12 WC
Province: Western Cape
Applicant: P Dreyer
Respondent: Department of Education, Western Cape
Issue: Unfair Dismissal - Misconduct
Venue: Cape Town
Award Date: 28 May 2012
Arbitrator: Craig Bosch
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT CAPE TOWN
Case No PSES378-11/12WC
In the matter between
P DREYER Applicant
DEPARTMENT OF EDUCATION WESTERN CAPE Respondent
ARBITRATOR: Craig Bosch
HEARD: 17 April and 16 May 2012
DELIVERED: 28 May 2012
SUMMARY: Labour Relations Act 66 of 1995 – Section 188 – Alleged unfair dismissal relating to misconduct
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
 The arbitration hearing in this matter took place in Cape Town on 17 April and 16 May 2012. The applicant was present and was represented by Mr Simons, an attorney. The respondent was represented by Ms Baatjies, a labour relations officer. The proceedings were digitally recorded.
 On the first day of these proceedings the applicant applied to be legally represented. The respondent did not oppose the application. After listening to, and considering, the applicant’s submissions. I ruled that he was entitled to legal representation. This case is not a particularly complex one but it raises some difficult issues relating to some of the evidence being led i.e. that of minor witnesses. The applicant is no match for Ms Baatjies who is, relative to the applicant, very experienced in participating in arbitration proceedings. The applicant is not a union member and could thus not call on the assistance of a trade union representative. In addition, the matter is a serious one given its impact on the applicant’s future prospects.
THE ISSUE IN DISPUTE
 I have to determine whether the applicant’s dismissal was substantively and procedurally unfair. The applicant alleged that he did not commit the misconduct alleged against him. There were allegedly procedural irregularities in that the complainant’s father was allowed to assist her in answering questions in the disciplinary hearing. In addition, it was alleged that the chairperson was biased in that she concluded that the applicant committed misconduct based on the evidence that was presented at the disciplinary hearing.
 I would like to point out that I have only recorded the evidence that was relevant to my findings. The parties will note that I have not summarised all the evidence that was led. That was because, upon reflection, I did not deem it all necessary to the determination of this dispute.
SUMMARY OF EVIDENCE
 Mr X testified that he is the father of Miss X, the learner who was allegedly sexually assaulted by the applicant. He testified how he had grounded Miss X because she did not want to go to school one Friday. On the following day Miss X cut her wrists, and when pressed to tell him why, had disclosed that she had been touched by the applicant. Mr X described how Miss X personality had changed from being generally happy-go-lucky to sometimes being edgy, introverted, emotional and nervous. Mr X stated that he explained to Miss X that the allegation that she was making was serious, but she stuck to her story.
 Under cross examination Mr X testified that Miss X told him about the incident some two months after it occurred. On the Friday when she had refused to go to school she had started crying and told him that she did not want to go. There were days when she did not want to go to school. Miss X cutting herself was a suicide attempt. Mr X asked her many times what was wrong, but she would not say immediately. Instead she just cried and cried. Miss X had no reason to make up a story like this and has never made allegations like this before.
 When asked whether he interfered when Miss X was giving evidence at the applicant’s disciplinary hearing Mr X testified that he helped Miss X with the microphone. He helped her with pressing the buttons but did not answer for her.
 Miss X testified that the applicant touched her breast. He ran his hand from her face to her breast and fondled her breast. She felt sad and embarrassed. It was the first time that a man had touched her in that way. Miss X described how the bell had rung for interval and she was packing her bag at the back of the class room. By the time she got to the front of the room she was the only learner there. The applicant told her that if she stepped outside she might get hurt and tried to close the door. She said ‘no sir’ and opened the door. The applicant closed the door again and said that he just wanted to talk to her and walked back to his desk. He called her to his desk and told her to sit on top of it. She refused and stood next to him. The applicant stood up, put his hand on her face and slid it down and squeezed hard on her breast. Miss X pushed his hand away and ran out of the class room. She went to the toilets and sat there until the bell rang. She washed her face and went to class and continued as if nothing had happened. She did not tell anyone about the incident as she was afraid and still in shock.
 Miss X testified that after the incident she did not even want her father to come close to her or hug her as she did not feel comfortable around any male. She stated that she is scared of the applicant and had never suspected that he would do anything like that. Miss X described how her father had discovered her cutting her wrists. She was crying and he asked her 3 times what had happened. She did not want to tell him but then told him that her teacher had touched her.
 Miss X testified that the answers she gave at the disciplinary hearing were her own, but she did not understand the microphone at first and her father assisted her with it. She stated that she has no reason to make up a story like this about the applicant.
 Under cross examination Miss X testified that she was in 8D and X1 was in her class. Miss X twin sister, Miss X1, was in 8A. She was referred to a timetable (page 19 of the bundle) which indicated that the applicant taught 8D in the second period and not before the break on Day 4. Miss X stated that timetables changed and there was no permanent arrangement. The timetable she was shown was not in effect at the time of the incident and did not look familiar to her. The timetable she was given showed other male teachers whereas this one did not. Miss X testified that she told her father about the incident in May and did not tell Miss X1 although they had a close relationship. She took so long to tell her father because she was scared that he would not believe her and because she was so emotional and she thought that she could just forget it, but she couldn’t. She did not tell anyone else because she did not trust anyone at that time.
 Miss X stated that she did not bunk school. There was only the one Friday when she did not want to go to school as she would have had the applicant in the last period. Miss X was shown a timetable which showed that the applicant had 10A in the last period on Day 5. Miss X stated that the timetable was incorrect. She stated further that she still went to class after the incident but would lie and tell her father that she was sick on the days that she knew she was going to have the applicant. She gave her projects to X2 to give to the applicant so that she did not have to do so herself.
 Miss X testified that she cut her wrists because of the incident with the applicant. She reiterated her evidence regarding the incident with the applicant. In re-examination she testified that timetables do not always stay the same and may change after 2 or 3 weeks. They do not only change during exam times. Miss X was not familiar with the timetables that Mr Simons had shown her.
 Miss X1, Miss X sister, gave evidence relating to the incident involving Miss X cutting her wrists. She also testified that she had class with the applicant one day. The class was lined up against a wall. The applicant called her out of the line and put his arm around her neck. He said, close to her ear, ‘you were in my class the other day, what happened?’ Miss X1 was confused and asked what he meant as she could not recall having been in the applicant’s class. He had a smirk on his face and did not want to believe her. He asked others in the class if Miss X1 had a twin sister. Miss X1 left the class and called to Miss X, but Miss X was irritated and just walked on. Miss X1 said to the applicant, ‘you see, I have a twin sister.’ This was in the period before the bell rang for interval.
 Miss X1 testified that Miss X was not the same after the incident. She did not recognise the timetables that were shown to Miss X. She stated that they did not make sense as they reflected that the applicant was the only male teacher, but that was not the case.
 Under cross examination Miss X1 testified that Mr X1 was a male teacher who taught them and was reflected on the timetables she and Jody had been shown. She then stated that those were not the timetables they got when they first came to testify and she was not referring to them when she gave evidence earlier. Miss X1 could not say when the incident between her and the applicant occurred. She denied that the applicant said to her ‘but you were here already’. She acknowledged that she had written tests for the applicant.
 The applicant testified that his contract with the respondent was initially for 6 months and it was renewed because he was teaching the grade 12s. His understanding was that he was going to stay on until the end of 2011. The applicant taught both Miss X (who was in 8D) and Miss X1 (who was in 8A). He vigorously denied the allegations against him.
 When asked about the incident between him and Miss X1 the applicant testified that he put his arm around Miss X1 and said ‘you were here already, go to your class.’ He was aware that Miss X and Miss X1 were twins. He had marked their tests and entered marks for both of them. The applicant was shown timetables for Days 4 and 5. He stated that he did not teach 8D in period 3 on Day 4 and did not teach 8D at all on Day 5, a Friday.
 The applicant indicated that he was earning R24230.50 per month at the time of his dismissal and wished to have his name cleared. He also requested that I order the respondent to pay him the salary he would have earned if he had worked until the end of 2011.
 Under cross examination the applicant testified that the timetables he had referred to were in effect at the time of the alleged incident with Miss X. Essentially, his evidence was that Day 1 of the timetable would be a Monday, Day 2 a Tuesday etc. Timetables only changed at exam time and would thus have changed in June 2011. The applicant acknowledged that he taught Miss X (8D) before break on Day 3, but the allegations in this case related to an incident which allegedly occurred on Day 4 (a Thursday). The applicant could not explain why Miss X would make up these allegations against him, but speculated regarding some possibilities. He stated that he is completely opposed to the kind of conduct alleged against him and would not have risked 30 years of teaching in the manner that the respondent was suggesting.
 Mr X2 testified that he is the principal of the school attended by Miss X and Ms X1 at the time of the alleged incident (i.e. Bridgetown High). With reference to the timetables he stated that Day 1 is a Monday, Day 2 a Tuesday etc. If school starts on a Wednesday then that will be Day 3. Thursday 3 March 2011 would have been Day 4. Mr X2 stated that the timetable submitted by the applicant for Day 4 (at page 24 of the bundle) was in place on 3 March 2011. According to Mr X2 the applicant was on a contract until the end of the year and was to be considered if other positions became available.
 Under cross examination Mr X2 testified that the timetable changed during exam times. He also stated that if the school started in a Wednesday that day would be Day 1.]
 X1 testified that she was in 8D in 2011 and Miss X was in her class. She is not related to the applicant. X1 testified that she and Miss X were very close and told each other everything unless it was very confidential. They were always together at break and would walk home together. X1 denied that Miss X gave her assignments to give to the applicant. She stated that Miss X would come to school and be happy one day and sad the next. When she asked Miss X about it Miss X would not tell her. It must have been confidential. Miss X had been periodically happy and sad at primary school as well.
 Under cross examination X1 testified that she and Miss X were always together and she therefore did not know how the alleged incident with the applicant could have happened. X1 acknowledged that the alleged incident with the applicant might have been confidential but Miss X had told her other things like this i.e. about physical contact with boys.
Did the applicant commit misconduct?
 The respondent alleged that the applicant committed the following misconduct:
It is alleged that you are guilty of misconduct as defined in section 17(1)(b) of the Employment of Educators Act 76 of 1998 (hereinafter referred to as the Act) in that on or about 03 March 2011, you committed an act of sexual assault by grabbing the breast of Miss X, a grade 8 learner at Bridgetown High School.
ALTERNATIVE TO CHARGE 1
It is alleged that you are guilty of misconduct as defined in section 18(1)(q) of the Act, in that on or about 03 March 2011, while of duty you conducted yourself in an improper, disgraceful or unacceptable manner by grabbing the breast of Miss X, a grade 8 learner at Bridgetown High School.’
 The first issue to be determined is whether the applicant committed the misconduct alleged against him. My finding on that point has, unfortunately, to be made by deciding whether to accept the applicant’s version or Miss X. The respondent’s case, and Miss X evidence, was that the incident between Jody and the applicant occurred on 3 March 2011, a Thursday, in the period before the interval. Mr X2 testified that the timetable that was in effect from 1 March 2011 was the one on page 24 of the bundle. As the respondent pointed out in argument, he conceded that timetables change, but usually only around exam times. I therefore accept, based on Mr X2 evidence that the timetable in place on the day of the alleged incident was the one on page 24 of the bundle.
 Miss X and Miss X1 evidence regarding which timetable applied was less than compelling. Firstly, I find it improbable that timetables would change all the time as Miss X suggested. It is more likely that they would change when that was necessitated by the arrival of new staff (the reason for the new timetable on 1 March 2011 according to Mr X2) or exams. Frequent changes to the timetable would, I imagine, be relatively chaotic and in all likelihood unnecessary. In these proceedings Miss X testified that the timetable she was handed did not show male teachers other than the applicant. That was clearly incorrect given that Mr X1 name appears at the bottom of that timetable.
 When Miss X was shown a timetable which showed that the applicant had 10A in the last period on Day 5 she simply stated that the timetable was incorrect. However, her evidence was not corroborated and was contradicted by both the applicant’s evidence and Mr X2. Ms X1 evidence under cross examination was that the timetables Mr Simons showed her were incorrect as they showed the applicant as the only male teacher. Interestingly, that was the same reason given by her sister. It was also, as I have indicated, incorrect. When that was put to her X1 sought to explain her mistake by saying that she had not been referring to the timetables Mr Simons showed her when she made her comment about the male teacher. That response was convenient and unlikely as the timetables part of the bundle in these proceedings were obviously in front of her.
 What all of this amounts to is that I accept that the timetable which applied at the time of the alleged incident was that on page 24 of the bundle. That means that the applicant did not teach Miss X class in the period before break on Day 4. The question arises whether Day 4 in the timetable was a Thursday. The applicant testified that it was. Mr X2
was uncertain and his evidence was contradictory. None of the respondent’s witnesses contradicted the applicant’s evidence that Day 4 on the timetable was a Thursday. I accept that it was. Let me add, that even if the school year started on a Wednesday and that was Day 1, as Ms Baatjies suggested to the applicant and Windvogel, that would not have helped the respondent. That is because if a Wednesday was Day 1 Thursday would have been Day 2. The applicant did not teach 8D before break on Day 2 either.
 If I accept that the applicant did not teach Miss X before break on 3 March 2011 that calls into question her evidence that the incident took place when she indicated that it did. I would add that there are other matters which call her credibility into question. For example, she stated that she did not want to go to school on a Friday because she did not want to have to face the applicant in the last period of the day. However, the timetable shows that she never had the applicant teaching her in the last period of any day. She testified that she still went to class after the incident but would lie and tell her father that she was sick on the days that she knew she was going to have the applicant. However, according to the timetable she had classes with the applicant on three days of the school week. It is unlikely that she was sick so often. Her father made no mention of that in his evidence ad would surely have done so if Miss X was off sick as often as she suggested. Jody also testified that she gave her projects to X1 to give to the applicant so that she did not have to face him. But X1 denied that and I could see no reason to disbelieve her. I cannot agree with Ms Baatjies who stated in her closing argument that X1 was obviously coached in the evidence she was to give in these proceedings. In light of these considerations I find that Miss X was not a credible witness and prefer the applicant’s version, albeit a bald denial that there was no incident between himself and Miss X.
 I am not sure why Miss X2 was called to testify regarding the incident which allegedly involved her and the applicant. Even on her version her evidence does nothing to show that the applicant did anything to her sister. However, I do not accept that events occurred as she suggested. It is highly improbable that the applicant, who taught both Miss X and Miss X1 and marked their tests would not know that they were twins. If that is so there would have been no issue around whether Miss X1had a twin sister or not.
 I am prepared to accept that Miss X cut her wrists and told her father that it was because the applicant had touched her. However, while I am sympathetic to her going through some trauma, these things do not assist me in determining whether the applicant committed the misconduct the respondent alleged against him. I do not have to find a reason why Miss X would concoct a tale against the applicant. I must simply determine whether the respondent has produced sufficient evidence to discharge the burden of proving on a balance of probabilities that the applicant committed the alleged misconduct. In my view, it has failed to do that and I find that the applicant did not commit the misconduct alleged against him in this matter. The applicant’s dismissal was therefore substantively unfair.
 I would add that I understood the applicant to have abandoned his challenge to the procedural unfairness of his dismissal. If I am mistaken in that regard, I would note that there is nothing in the evidence before me which indicates any procedural unfairness and it is my finding that the applicant’s dismissal was procedurally fair.
The appropriate remedy
 Given that I have found that the applicant’s dismissal was substantively unfair I must determine an appropriate remedy. The applicant does not wish to be reinstated but seeks compensation. I accept the evidence of the applicant and Mr X2, because it was not contradicted or challenged, that the applicant would have been employed until the end of 2011. There is insufficient evidence to find that he would have been employed beyond that. The applicant was dismissed with effect from 30 June 2011. He would have worked until the end of 2011 but for his unfair dismissal. I will therefore award him the equivalent of six months remuneration as compensation for his unfair dismissal i.e. R145383 (R24230.50 X 6).
The applicant’s dismissal was substantively unfair.
The respondent is ordered to pay the applicant R145383 as compensation for his unfair dismissal. That amount must be paid by or on Monday 18 June 2012.