PSES582- 13/14 NW
PSES582- 13/14 NW
Award Date:
14 November 2014
Case Number: PSES582- 13/14 NW
Province: North West
Applicant: L MOKGOEBO
Respondent: Department of Education: Gauteng
Issue: Unfair Dismissal - Constructive Dismissal
Venue: NORTH WEST
Award Date: 14 November 2014
Arbitrator: R de Wet
Commissioner: R de Wet_________________________________
Case No.: PSES582-13/14NW Date of Award: 14 November 2014 ________________________
In the ARBITRATION between:
LESLIE MOKGOEBO
(Union / Applicant)
and
DEPARTMENT OF EDUCATION GAUTENG
(Respondent)
Union/Applicant’s representative: Mr Parsons
Telephone:
Telefax:
Respondent’s representative: Ms Lejaka ________________________________________
Telephone: _____________________________________________ Telefax: ______________________________________________
DETAILS OF HEARING AND REPRESENTATION:
[1]. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the
“ELRC”) in terms of Section 191(5)(a) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for Arbitration on 9 May, 7 July, 20 and 21 October 2014. The hearing was held at the Employer’s premises and at the Magistrate Court in Brits respectively. The process was digitally recorded. Parties agreed to submit written heads of argument by 28 October 2014. Both parties duly complied. Extension of the 14 days was granted to 17 November 2014.
[2]. Mr Leslie Mokgoebo, the Applicant (hereinafter referred to as “Mokgoebo”), was present and was represented by Mr Parsons, a legal practitioner admitted to practice in the RSA. Ms Lekaja, from the Labour Relations Division represented the Respondent.
[3]. In accordance with Section 28(2) of the Constitution, the child’s best’s interest are of paramount importance in every matter concerning that child. Section 28(3) refers to a child as a person under the age of 18 years. Whereas reference was made to minors throughout this award, it would be done by initials only.
[4]. At the outset of the hearing, the Respondent made an application in terms of Section170A (1) read with subsection (7), Section 153(3) and subsection (5) and Section 158(5) of the Criminal Procedures Act, No. 51 of 1997 (hereinafter referred to as “The CPA”), that provides for, inter alia, the appointment of an intermediary, and evidence to be given in a venue suitable for this purpose. The application was unopposed.
ISSUE TO BE DECIDED:
[5]. Whether or not the dismissal of the Applicant was substantively and procedurally fair as envisaged by Section 185 read with Section 188 of The Act. In the event that I find in the negative, I must decide upon an appropriate remedy.
BACKGROUND:
[6]. Mr Mokgoebo commenced his employment with the Respondent on 26 May 1990. He was employed as a Level 1 Educator at Eletsa Secondary School. At the time of dismissal he was earning a monthly remuneration package of R18 000-00.
[7]. During the course of his employment he was served with a notice to attend a disciplinary hearing. The hearing was set to commence on 15 August 2012. The allegations against Mr Mokgoebo were:-
“Charge 1:
Between January and March 2012 you had asexual relationship with “WK” a learner at Eletsa Secondary School where you are employed as an educator.
In so doing you contravened Section 17(1)(c)
Charge 2:
Between January and March 2012, you unjustifiably prejudiced the discipline of Eletsa Secondary School when you had a sexual relationship with “WK” a learner where you are employed as an educator.
In so doing you contravened Section 18(1)(f).
Charge 3:
Between January and March 2012 while on duty you conducted yourself in an improper and unacceptable manner at Eletsa Secondary School when you had a sexual relationship with “WK” a learner where you are employed as an educator.
In so doing you contravened Section 18(1)(q).
Charge 4:
Between February and April 2012 you had a sexual relationship with “LH” a learner at Eletsa Secondary School where you are employed as an educator.
In so doing you contravened Section 17(1)(c).
Charge 5:
On 23 February 2012 while on duty you conducted yourself in an improper and unacceptable manner at Eletsa Secondary School when you proposed love to “LH” a learner at the school where you are employed as an educator.
In r Section 18(1)(q).
Charge 6:
Between February and April 2012 you sexually assaulted “LH” when had sex with her, a learner at Eletsa Secondary School where you are employed as an educator.
In so doing you contravened Section 17(1)(b).
[8]. As a result of the hearing, Mr Mokgoebo was found guilty on all six allegations and the sanction of dismissal was imposed.
[9]. Mr Mokgoebo appealed the finding and sanction, and on 19 November 2013 the appeal authority issued the outcome, dismissing the appeal.
[10]. The Applicant is of the view that his dismissal was unfair since he did not breach a workplace rule. Insofar as procedure is concerned, he disputes the fairness of his dismissal on the following grounds:-
• Whether or not he was afforded the right to representation;
• Whether or not he was informed of the allegations in good time. According to him he was served with the notification on the day of the hearing, ie. 8 October 2012.
APPLICATION IN RESPECT OF LEGAL REPRESENTION:-
[11] The Respondent objected to legal representation at the commencement of the proceedings. The Applicant in bringing an application to be legally represented argue the matter is complex in nature. According to Mr Parsons the allegation against the Applicant involves sexual relationship. He argued that the Applicant would not be in a position to deal with the arbitration on his own. The Respondent on the other hand argued the matter is straightforward and not complex at all. The matter requires a determination on whether or not Mr Mokgoebo is guilty of having a sexual relationship with the said learner/s as per the allegations in the notice of set down.
RULING:
[12]. Having considered the argument before me against the backdrop of the Constitution of the ELRC, I have decided it would be unfair to expect of the Applicant to continue without legal representation giving specific consideration to the nature of the allegations preferred against the Applicant, ie sexual assault, which in my view is complex in nature.
[13]. Consequently the Respondent made an application for postponement arguing it would like to seek legal representation. The application was unopposed.
[14]. Despite granting the opportunity to the Respondent to seek legal representation, it nevertheless continued without legal representation on the next day of the arbitration.
SURVEY OF EVIDENCE AND ARGUMENT:
[15]. It is not my intention for the purposes of this award, to record verbatim the evidence led, submissions
made and arguments raised on record. Only the salient points of each parties’ evidence that have a bearing on the issue in dispute to be decided, are recorder hereunder.
RESPONDENT’S VERSION:
[16]. The Respondent lead the evidence of four witnesses.
[17]. Obakeng Sophia Magaret Sindane (Life Orientation Educator at Eletsa Secondary School) testified that:
[18]. She became aware that “WK” attempted to commit suicide when it was reported to her that “WK” was complaining of stomach ache. The learner was taken to the doctor to receive medical attention, where it was confirmed that she took an overdose.
[19]. “WK” explained she made the attempt on her own life because she could no longer deal with the fact that the Applicant no longer wanted to be in a relationship with her. He had apparently been in another relationship since the beginning of that year.
[20]. The relationship, according to her, was ended by the Applicant after she refused to have sexual intercourse with him. Mr Mokgoebe also threatened to see other girls if she would not have sex with him.
[21]. She did not attend school after the incident as she was admitted to a clinic in Mabopane. “WK” was terrified when she learned that her parents were going to be called. She explained that her parents are very strict and she was scared of what they would say when they learn of the relationship she had with Mr Mokgoebo. Subsequently “LH” approached her and also confessed that she was having a relationship with several educators, but and in particular she referred to the Applicant.
[22]. It is strongly prohibited to have any form of a relationship with learners other than that of a learner-educator.
[23]. When asked in cross-examination whether she has anything against the Applicant, she answered in the negative. When she was shown, what purport to be an affidavit from “LH”, (Bundle “A” Page 44) she responded by rejecting the contents as untrue, explaining it is would not make sense for her to approach the learner in September when the incident already happened in March 2012. (It must be noted that the author of the document was never called to these proceedings to testify despite an undertaking by the Applicant to call the learner). She also explained that she had never seen this document before it was shown to her in the arbitration.
[24]. “WK” (Learner at Eletsa Secondary School) testified that:
[25]. Mr Mokgoebo told her, around January to March 2012, that he loved her. She responded auspiciously saying that she also loved him. They used to meet frequently thereafter once school was out.
[26]. During or about March 2012 she accompanied Mr Mokgoebo to a shopping complex where he said he wanted to buy some alcohol before taking her to a nearby lodge. She however refused to go to the lodge. He then took her home. From then onwards, he ignored her, although he would be talking to other girls at school. This conduct of Mr Mokgoebo towards her, upset her greatly.
[27]. Ultimately, when she could no longer stand the mistreatment from the Applicant, she decided to take an overdose of pills. The date was 25 March 2012, and it was on a Sunday. The next day she went to school but had a terrible stomach ache. She then confided in a friend and told her what she had done. The friend approached Ms Sindane, a teacher for a glass of water.
[28]. Ms Sindane however demanded to be told what was going on. She confided in Ms Sindane that she was having a relationship with Mr Mokgoebo but that his behavior towards her changed after she refused an advance from him to have sex. He then rejected her which drove her to take an overdose of pills.
[29]. Ms Sindane reported the matter to the Principal and thereafter took her to the doctor. The doctor referred her to a clinic where she was hospitalized for three days. From there she went to Arcacia where she was admitted for a further four days.
[30]. She referred to her statement (Bundle “B” Pages 13 to 16), and explained that Mr Mokgoebo told her to keep their relationship a secret. He said it was wrong what he was doing and that is why she should not tell others about their relationship.
[31]. She vehemently denied the version that Ms Sindane would have asked her to lie about the whole incident. She testified that there is no reason for her to fabricate this allegation.
[32]. Under cross-examination she explained that she was in grade 10 in 2012 and she is still in grade 10 now in 2014. The reason for failing grade 10 twice in a row is because of what happened between her and the Applicant that ultimately led to a total loss in concentration.
[33]. She testified that she took 10 immune boosters when she overdosed, and although she knew it was not dangerous, she took them nevertheless as it was the only pills in their house.
[34]. In response to a statement that she was the one who was falling in love with educators and that she was even taken to task by the Principal for her behavior, she replied that it was not true. She in fact explained to the Principal that it was the Applicant that approached her and not vise versa.
[35]. She vehemently denied fabricating the version against the Applicant as he allegedly rejected her when she had a crush on him. She testified that the Applicant used to take her out to various places where he would kiss her.
[36]. The version was put to her that her parents already learned of the relationship before the suicide attempt, but she clarified the issue saying they learned of the relationship when she was hospitalised.
[37]. Tshosane Petrus Motumi (Labour Relations Manager) testified that:-
[38]. He was the representative of the Respondent during the disciplinary hearing of the Applicant. As a matter of procedure he maintained constant communication between the Respondent and the representative of the Applicant at the SADTU office. He could also recall the postponement of the hearing at the Applicant’s instance. The person that all communication was served on was Flaura Matsheta. She was the person who represented the Applicant at the time.
[39]. The notice of set down containing the allegations was served on Ms Matsheta, and she acknowledged receipt thereof. Initially there were only three charges but subsequently three more were added.
[40]. When the Applicant informed them that he only received the notice with the amended allegations, on the day of the hearing, he explained to the Presiding Officer that he served the charges on the Applicant’s representative. Subsequently the Presiding Officer phoned Ms Matsheta, putting her on speaker phone, to confirm whether the notice was received. Ms Matsheta ultimately acknowledged receiving the notice.
[41]. Under cross-examination he explained that the Applicant initially represented himself during the disciplinary hearing, and subsequently Mr Tsjwa represented the Applicant.
[42]. He disagreed with the version put to him that the Presiding Officer refused the Applicant a postponement when his representative was not available. He testified that the Applicant submitted two medical certificates for his representative. On the first occation, , the matter was adjourned, however on the second occasion the Presiding Officer decided to continue in the absence of the representative.
[43]. He agreed that the Presiding Officer noticed on the 1st of October 2012, when the hearing started, that the Applicant was not aware of the three additional charges. She accordingly ruled that the hearing must proceed on the first three charges only thereafter the hearing was adjourned to a later date to continue with the additional three charges.
[44]. Boitumelo Phuswane (The Presiding Officer of the disciplinary hearing) testified that:-
[45]. On the first day of the hearing, she postponed the hearing on the basis that the representative of the Applicant was either not available or not prepared. The hearing was again postponed on the second day of the hearing as the Applicant’s wife was sick. On the third day of the hearing, the Applicant again presented a sick note for his representative. She was suspicious of the explanation for his absence, as she asked the parties at the adjournment of the second sitting to agree on a third date in order to avoid any further delays. She explained in the absence of an agreement, she would determine the date.
[46]. Subsequently when she spoke to the representative of the Applicant, he indicated that he would not be available on the date that she proposed to continue, as he was invited to some SADTU function. When she requested a copy of the invitation, he changed his version, saying he had to go to some other country. Once more she asked for proof, but he evaded the question, by saying it was personal. She reminded him of the agreement they had during the hearing and advised him if he cannot represent the Applicant, he should communicate that to Applicant.
[47]. The date was confirmed and went ahead as communicated, but at the commencement of the hearing, she was issued with a sick note from the Applicant’s representative. She expressed her concern and explained the representative indicated he had personal matters to attend to. In spite of her concerns, she gave the Applicant the benefit of the doubt, and seeing that the hearing was scheduled for the Thursday and the Friday, she decided to adjourn the hearing to the Monday and Tuesday, as the note indicated that Mr Tsajwa would be fit to resume his duties by then. She explained that she would not take kind to any further application for postponement, unless she receives it by prior communication.
[48]. .On Monday, to her surprise, she was again served with a medical certificate. She questioned the fact that prior communication was not adhered to, as the certificate was issued on that Friday. In the circumstances she formed the opinion that the representative was using delaying tactics and accordingly made the ruling that the matter must proceed.
[49]. She then stood the matter down for a few hours in order for the Applicant to secure the presence of another representative. He replied that he did not want to be represented by any other person but Mr Tsajwa.
[50]. The hearing accordingly proceeded on the same day. As the charges were read, the Applicant raised the objection that he was not aware of the three additional charges that were added to the original notice of set down.
[51]. The representative of the Respondent informed her that the amended notice was forwarded to SADTU and that all communication was with Ms Matsheta. She then contacted Ms Masheta, putting her on speakerphone in order for all to hear. Ms Matsheta was initially arrogant, but subsequently agreed that she gave the notice to the current representative of the Applicant.
[52]. Apart from the three additional charges, the nature and contents of the notice did not change. She accordingly suggested that they proceed with the first three allegations, where after the hearing would adjourn, to deal with the additional three allegations at a later stage. The Applicant did not object to the proposal. He was then given some 15 days to prepare for the remaining three allegations.
[53]. As the hearing proceeded, the Applicant indicated to her that he was instructed not to participate in the hearing. He therefore did not plead, but he nevertheless participated in the cross-examination of the witnesses of the Respondent, by raising several objections. He also submitted closing arguments and mitigating circumstances (Bundle “A” Page 19).
[54]. When the hearing proceeded on the remaining three allegations, the representative of the Applicant was present. At the commencement of the proceedings, the representative made an application for her recusal and that the allegations against the Applicant be withdrawn.
[55]. The hearing was adjourned, and on her return she dismissed both applications stating she could not find any prejudice to the Applicant in the manner the process was dealt with and furthermore could not find a valid reason for the allegations to be withdrawn.
[56]. In making a finding on the facts before her she took into account, the testimony of the two learners who testified, and the absence of any version to the contrary as the Applicant refused to testify. In the circumstances she evaluated the evidence and was of the view the version as put by the witnesses of the Respondent is the most probable version under the circumstances.
[57]. Under cross examination she disagreed that she denied the Applicant the right to representation, explaining he was afforded the right to representation but his application for postponement was refused as the explanation for the postponement was unreasonable and unacceptable.
[58]. She further explained that according to the medical certificate the representative of the Applicant consulted on Friday, but he made no effort to communicate his inability to be present on the Monday.
[59]. The version that the Applicant did not participate in the hearing, due to the fact that he was not prepared and the process was unfair, was disputed by the witnesses. According to her the Applicant did participate, he raised objections and he entered mitigating circumstances, but he explained to her he was instructed not to participate.
APPLICANT’S VERSION:
[60]. Leslie Mokgoebo (The Applicant) testified that :-
[61]. He had a clean disciplinary record before being summoned to the disciplinary hearing that lead to his dismissal. He explained he was voted to be the teacher liaison officer by the learners. By virtue of this position, suspicion were raised that he was too close to the learners.
[62]. During 2012 he was called to the office of the circuit manager, where he was told of the complaint against him. He reminded the Principal that he had reported the very matter before when he said the learner was interested in having a relationship with him. Together they decided to call “WK”’s parents in to discuss the matter with them.
[63]. The parents attended a meeting with the Principal, but he was not part of that meeting. After the meeting he was called in by both the Principal and the Deputy Principal. He was then informed what was said to the parents.
[64]. It all started when “WK” came to him as the teacher liasing officer, to talk to him about certain matters. He could not show her away although it was clear that she wanted a relationship with him. Other teachers also warned him saying “WK” wanted a relationship with him.
[65]. Being fully aware that it is inappropriate to be involved with a learner, he decided to seek assistance from the Principal.
[66]. Despite the history of the learner, he was served, on 6 August 2012, with a notice to attend a hearing scheduled for 15 August 2012.
[67]. The hearing did not continue on the day but a postponement was granted to 30 August 2012 as his representative had a matter to attend to. His wife was admitted to hospital on 29 August 2012, and as a result he had to request a further postponement.
[68]. The hearing was postponed to 27 September 2012. Yet again the hearing had to be postponed, due to the ill health of his representative. An adjournment was then granted to the Monday and Tuesday, 1 and 2 October 2012. However on 1 October 2012, he had to submit a further sick note for his representative. The Presiding Officer however refused to postpone the matter.
[69]. He could not continue with the hearing on his own as he was not prepared to deal with the issues by himself. The Presiding Officer nevertheless ruled that the matter would proceed. As the charges were read he realised that there were additional charges to the notice that he was not aware of, In spite of his objection, the hearing proceeded with the first three charges. The hearing was thereafter postponed to a later date.
[70]. Under cross-examination he explained that timeline of events as it happened. He stated he reported the matter to the Principal during February, or March 2012. The Principal called him around April 2012 to inform him about the complaint against him. When he was asked why he did not escalate such a serious matter, he blamed the system stating it requires having a discussion with the parents.
[71]. He disputed the version put to him that although he was the teacher liaison officer he did not know how to deal with children who misbehaved. When the version was put to him, that as teacher liaison officer, he dealt with minor things but when it came to such a serious matter as a learner wanting to have a relationship with him, he did nothing, he responded he wrote a letter to the parents.
[72]. .In response to a question, why he did not report the incident in the incident book, he replied it was for the Principal to do so.
[73]. In terms of a question put to him why “LH” would fabricate the version against him, he explained that he was not the only educator who was accused of having a relationship with learners. He also made the comment that learner “LH” made no accusations against him, and then qualified his answer to say at least not in the arbitration. He nevertheless admitted that “LH” testified against him in the disciplinary hearing.
[74]. He also admitted that it was strange to hear two learners from the same school making the same allegations against him, but argued he did not cross-examine them during the hearing as he was not prepared.
[75]. He admitted that he may have made a mistake when he stated at the commencement of this process that he received the charge sheet on 8 October 2012. In fact he received the charge sheet on the day of the hearing, 1 October 2012.
[76]. He denied raising any objection during the hearing, but when the question was then put to him why he did not challenge the evidence of the Presiding Officer when she testified during these proceedings, he answered by just repeating that he did not object during the hearing.
[77]. In relation to whether he would call the Principal to testify on his behalf, he explained that the Principal is on pension and therefore he would not testify during these proceedings. Furthermore by the time that these allegations surfaced, the Principal indicated that he was not going to involve himself in the matter. He could not answer the question why he did not ask the Principal to make an affidavit as he did with “LH” accept to repeat the Principal did not want to be involved.
[78]. Under re-examination he changed his version from saying the Principal completed the incident book to he was under the impression the representative of the Respondent was referring to the instruction book.
[79]. Kgomotso Nta (learner at Eletsa Secondary School) testified that:-
[80]. She was in school with the Applicant and “WK”. At some point during 2011 “WK” asked her whether she (Ms Nta) was in an intimate relationship with the Applicant. When she replied in the negative, “WK” said to her that she was interested in having a relationship with the Applicant.
[81]. Subsequently they were called to the Principal’s office to answer to questions whether they were having relationships with the Applicant. “WK” apparently informed the Principal that they had a relationship with the Applicant.
[82]. Under cross-examination she admitted that she was not one of “WK”’s friends and would therefore not be in a position to answer why she would have discussed this matter with her. She did however confirm that “WK” tried to commit suicide because she loved the Applicant and he did not have time for her.
[83]. She also admitted to have made a mistake during her evidence in chief when she said that she knew “WK” from 2011. She got to know her in 2012 and that is also when the incident happened.
ANALYSIS OF EVIDENCE AND ARGUMENT:
Legal considerations:
[84]. According to Section 192 of the Act, the onus in any proceedings concerning a dismissal, is first and
foremost on the Applicant to establish the existence of a dismissal. Once that onus had been discharged, the Respondent must prove the fairness of the dismissal.
[85]. In the present matter, the existence of the dismissal is not in dispute, and therefore the Respondent must show that a valid reason exists for the dismissal of the Applicant and that such dismissal was imposed in accordance with a fair process. In terms of Section 188(2) of The Act, the Commissioner is to take cognisance of any relevant code of good practice, when considering the fairness of such dispute.
[86]. According to the Respondent, the Applicant is guilty of misconduct in that he had a sexual relationship with a learner from the same school where he was teaching. The Respondent argued it did not call the second complainant, “LH” because the Applicant at all times indicated that they would be calling her.
Procedural fairness:
[87]. Insofar as the procedural fairness of a dismissal is concerned, Van Niekerk conceptualized ‘procedural fairness” in Avril Elizabeth Home for the Mentally Handicapped v CCMA & others (2006) 9 BALR 833 (LC) where the court held that the basic requirements of the Act as contained in Schedule 8 thereof, should be applied as the test for procedural fairness and the reliance of a more stringent approach should be abandoned.
Van Niekerk remarked that:-
“It follows that the conception of procedural fairness incorporated into the LRA is one that requires an investigation into any alleged misconduct by the employer, an opportunity by any employee against whom any allegation of misconduct is made, to respond after a reasonable period with the assistance of a representative, a decision by the employer, and notice of that decision.”
[88]. The Applicant challenged the fairness of his dismissal on two specific grounds. One that he was not afforded the right to representation and more specifically that the Presiding Officer refused a postponement when his representative was ill, and two, that he was handed the amended charge sheet on the day of the hearing thereby denying him the right to properly prepare for the hearing.
[89]. The Applicant during cross-examination of the witness from the Respondent and again during closing arguments, made a calculated attempt at expanding the grounds on which he originally challenged the procedural fairness of his dismissal. It was clearly explained at the onset of the hearing that all issues in dispute must be listed before the commencement of the proceedings. The issues in dispute were clearly identified and agreed upon before the hearing commenced. The Applicant was also at all times represented by a legal practitioner and for these reasons no belated challenges will be entertained.
Was the Applicant afforded the right to representation?
[90]. The disciplinary hearing commenced on 15 August 2012. It was postponed to 29 and 30 August, 27 September and then to 1 and 2 October 2012. On at least 2 to 3 instances, the Presiding Officer granted a postponement to the Applicant due to either his own unavailability or that of his representative. Against this background the Applicant, again on 27 September 2012, handed in a sick note stating his representative was ill. The Presiding Officer postponed the hearing to Monday 1 and Tuesday 2 October 2012 to allow the representative to recuperate but requested any further postponement to be clearly communicated prior to the next sitting. Without observing this request, the Applicant, on Monday 1 October 2012 handed in a further sick note on behalf of his representative. The Presiding Officer, rightly so in my view, refused the request for postponement and continued with the hearing. It is clear that she was suspicious of the certificate because the representative informed her before the hearing of 29 August 2012 that he had alternative arrangements and would not be available. When she insisted on proof he changed his version to state that he had to go to Lesotho for personal reasons. In my view the Presiding Officer did not act unfairly when she refused the postponement under the specific circumstances. Presiding Officers must act in the interest of both parties and must dispose of matters in an effective and expeditious manner ensuring the right to finality is not unreasonably prejudiced. The Applicant argued that the Presiding Office could not ignore the medical certificate handed up by the Applicant.
[91]. It was held in Mgobhozi v Naaidoo NO & others (2006) 3 BLLR 242 (LAC) that medical certificates without supporting evidence from doctors constitute hearsay evidence and courts must be especially vigilant to prevent abuse. The court held that the absence of affidavits from the doctors led to the inference that they were not willing to defend the certificates under oath.
[92]. The right to a pre-dismissal hearing in Old Mutual Life Assurance Co SA Ltd v Gumbi (2007) 16 (SCA), imposes upon employers nothing more than the obligation to afford employees the opportunity of being heard before employment is terminated by means of a dismissal.
[93]. In my view the Respondent afforded Mr Mokgoebo the opportunity to defend himself against the allegations of misconduct that ultimately led to his dismissal. Mr Mokgoebo, although present in the hearing, refused to make use of the opportunity. He refused to cross examine the witnesses and failed to put his own version before the Presiding Officer. The argument from Mr Mokgoebo that he was not prepared for the hearing as the preparation was done with his representative, is bizarre as representatives obtain their mandate from the accused employee. Who better than Mr Mokgoebo himself then to put questions to the witnesses?
[94]. Considering all the facts before me I am inclined to accept the Respondent afforded the Applicant a fair hearing. The Presiding Officer has granted various requests for postponements in the past despite the suspicion surrounding the first medical certificate. She specifically requested any further requests for postponements to be arranged or communicated prior to the hearing. This evidence was not challenged by the Applicant nor was the version put that he only learned of the certificate on the morning of the hearing. It would therefor appear the representative consulted a doctor on that Friday afternoon where he obtained a further certificate but failed to properly communicate the fact to the Respondent until the Monday morning when the hearing started. The Presiding Officer was within the boundaries of fairness to refuse to accept the medical certificate in the absence of any supporting evidence from the doctor.
[95]. In the circumstances it is accepted the Respondent acted well within reason and fairness.
Whether or not the Applicant was afforded sufficient time to prepare for the additional three charges?
[96]. It must be noted that the Applicants version in this regard was not clear, at the commencement of the arbitration hearing it was stated that he received the charge sheet with the additional charges only on the 9th of October 2012. During the process he conceded that he learned of the additional three charges on 1 October 2012 when the hearing commenced. Be that as it may, the hearing of 1 October 2012 did not proceed on the additional charges. Only the first three charges was entertained whereupon the hearing was adjourned to a further date. The Applicant therefore had ample time to prepare for the additional charges, to be precise he had 15 days. The evidence of the Presiding Officer that the hearing only continued 15 days later was never challenged by the Applicant.
[97]. In the circumstances I am not convinced that the Applicant was not afforded sufficient time to prepare for the hearing.
Substantive fairness:-
[98]. The Respondent’s version was presented via the testimony of two witnesses. The first witness, the complainant herself and the second Ms Sindane, who appears to be the first report. According to the testimonies of the two witnesses, the Applicant made himself guilty of misconduct in a manner that is offensive to the provisions of the Employment of Educators Act No 76 of 1998 (hereinafter referred to as “The EEA”), and more specifically that he had a sexual relationship with a learner/s from the same school where he was teaching. As a result of this behavior, the rights of the learner/s were adversely affected.
[99]. The Respondent contended that the behavior displayed by the Applicant is of such serious nature that dismissal is mandatory according to the provisions of The EEA, but in addition it argued that the trust relationship between the parties had been broken beyond any repair. The Applicant on the other hand denied any involvement and prayed for an order of retrospective reinstatement.
The charges before me:-
[100]. In relation to charge 4, 5 and 6 the only evidence that was tendered amounts to hearsay evidence. The Respondent did not bring an application in terms of Section 3 of the Law of Evidence Amendment Act, despite drawing their attention to the provisions of the said Act. The Respondent argued that the Applicant at all times indicated that he would call “LH” to testify on his behalf. The onus is on the Employer to prove the fairness of the dismissal. It is not sufficient to rely on the argument that the Applicant indicated he would call “LH” as a witness. At the very least, when the Respondent realized the witness is not willing or able to testify, it should have made an application in terms of Section 3 for hearsay evidence to be admitted into the record.
[101]. In terms of charge 1, the Applicant is accused of having a sexual relationship with “WK”. There is however no evidence before me to support such an application. According to “WK” she had a physical relationship with the Applicant that involved physical contact including kissing. At no stage did she adhere or succumb to the Applicant’s advances to sleep with him. Her testimony further did not allude to any sexual contact of whatever nature between the two of them. In the circumstances I am not convinced that the Applicant is in breach of Section 17(1)(d) of the EEA.
[102]. Turning to the second and third allegations, being unjustifiably prejudicing the discipline of the Respondent and or displaying improper and unacceptable behavior as an Educator, I noted the following: - From the evidence before me, I accept the Applicant did have a relationship with “WK”. He tried desperately to cast doubt on the version of the Respondent but without much success. According to him Ms Sindane incited learners to bring allegations of misconduct against him. Ms Sindane however rejected this version with contempt and no further questions were put to her in this regard. Surprisingly the Applicant then also accused “WK” of fabricating this version against him. According to him she had a crush on him and wanted a relationship with him, but when he refused to be in a relationship with her, she fabricated this version against him in an act of vengeance. He explained that he reported the matter to the Principal before the attempted suicide of “WK” and that her parents were subsequently called in to discuss the matter. He could not testify as to what was said in the meeting as he was not present in the meeting and he did not call the Principal to witness what transpired and what was discussed. “WK” on the other hand was adamant that her parents only learned of the relationship when she was admitted to hospital after taking an overdose of pills. The evidence of Ms Sindane in this regard was very valuable. She corroborated the version of “WK”, explaining that WK” was terrified when her parents were called to the hospital. She stayed with WK” when they were informed as to the reason for the attempted suicide of “WK”. She alluded to the fact that “WK” said to her that her (“WK”’s) parents were very strict and they would not take kind to the relationship that she had with the Applicant. This version was not challenged in cross-examination.
[103]. Mr Moekgobo did not impress me as a witness. He was evasive when questions were put to him in cross-examination and his version changed in several aspects during this hearing. To demonstrate this point I will refer to but one such instance although there are more. Initially, he blamed Ms Sindane for instigating the learners to make this claim against him, subsequently he accused “WK” of having fabricated this version against him in revenge for not engaging in a relationship with him, and he never gave any explanation which version is correct or offered to clarify the link between these two versions.
[104]. Conversely “WK” and Ms Sindane impressed me as witnesses, they were crisp and clear in all aspects of their testimony and no internal or inherent contradictions were noticed in their testimonies.
[105]. Having considered both versions, I am convinced the probabilities favour the version of the Respondent. It is highly unlikely that a person would attempt to commit suicide merely because someone else refuse to have a relationship with them. Moreover, Mr Mokgoebo’s own witness, Ms Nta’s testimony supports the version of the Respondent, when she confirmed that “WK” made the attempt on her own life, because Mr Mokgoebo did not have time for her.
[106]. In the circumstances I am of the view the Applicant is indeed guilty of prejudicing the discipline of the Respondent and of acting in an improper and unacceptable manner. The fact that the allegation refers to a “sexual relationship” is neither here nor there. The true nature of the allegation against Mr Mokgoebo did not change, accept for the inclusion of the word “sexual”. Even if the word “sexual” had been excluded from the allegation, the meaning of the allegation would not have changed.
[107]. Mr Mokgoebo is an Educator who is placed in a position of trust. He abused this trust to satisfy his own dim motives, and in the process disregarded the rights and dignity of the learners, who are the most vulnerable of society. It is clear from the evidence of “WK” that Mr Mokgoebo had the intention of having a sexual relationship with her, and even though the relationship did not reach that stage, it would have was it not for “WK”’s refusal. The safety of children is paramount and supersedes any right of adults. For the reasons mentioned above, I find the Applicant is indeed in breach of Section 18(1)(f) and (q) of the EEA.
[108]. Contrary to Section 17, Section 18 of the EEA does not carry a mandatory sanction of dismissal once a breach is established. In considering the appropriateness of the sanction, I had regard to the views held by the Constitutional Court in Sidumo v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC), wherein the decision of whether or not dismissal was an appropriate sanction for the contravention of the rule or standard, is conceptualized in an evaluation on the basis of whether or not the Employer’s decision to dismiss the Employee was fair. In reaching this conclusion, consideration ought to be given to the position and interests of both the Employer and Employee in order to make a balanced and equitable assessment. The court had the following to say:-
“There can be no question that the ultimate test that a Commissioner must apply is one of fairness. The test is foreshadowed both in Section 23 of the Constitution and Section 188 of the LRA………”
[109] Earlier at Par. 75 in Sidumo (supra) Navsa J commented as follows:
“…The CCMA correctly submitted that the decision to dismiss belongs to the employer but the determination of its fairness does not. Ultimately, the commissioner’s sense of fairness must prevail and not the employer’s view…”
and at Par. 78:-
“In approaching the dismissal dispute impartially, a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record….”
[110] Having considered the importance of the Rule in the workplace as argued by the Respondent, and recognizing the position of trust held by the Applicant, moreover that he was not just any Educator but he was also a teacher liaison officer, elected by the learners to act as the liaison between them and other educators, I am of the view the that Educators are duty bound to uphold and promote the basic human rights of the learners as embodied in the Constitution of South Africa. They should furthermore commit themselves to do all within their power to act in accordance with the ideals of their profession. Their conduct must at all times be proper and becoming. Educators must respect the dignity of the learners (see the Constitution of South African and the SACE Code of Conduct) and must ensure that they at all given times have the best interests of the children at heart (Section 28 of the Constitution).
[111]. In contrast the Applicant admitted to being aware that it is wrong to have a relationship with learners, but argued that he was wrongfully accused and that he should be reinstated retrospectively to his position.
[112]. A breach of this rule, as argued by the Respondent can have far reaching consequences for the learners. A further crucial aspect for consideration in this regard is the fact that the Applicant had not shown any remorse.
[113]. In an earlier dictum of Conradie JA in De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation and Arbitration and others (2000) 21 ILJ 1051 (LAC) at par. 22 a similar approach was also followed when the court pronounced that -:
“A dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise.”
[114]. Children are vulnerable and very susceptible at this stage and should not be exposed to educators who use the school grounds as hunting grounds for their own selfish motives and desires. In this regard I find it hard to believe that additional training or any other sanction short of dismissal would be appropriate in the circumstances. It is for the reasons mentioned above that I decline to intervene with the sanction of dismissal that was meted out to Mr. Mokgoebo, having exhaustively considered the circumstances.
AWARD:
[115]. In the light of the above, I find that the dismissal of the Applicant, was substantively fair and procedurally fair.
[116]. The Respondent, The Department of Education North West is not ordered to reinstate the Applicant to his previous position.
[117]. I make no order as to costs.
Province: North West
Applicant: L MOKGOEBO
Respondent: Department of Education: Gauteng
Issue: Unfair Dismissal - Constructive Dismissal
Venue: NORTH WEST
Award Date: 14 November 2014
Arbitrator: R de Wet
Commissioner: R de Wet_________________________________
Case No.: PSES582-13/14NW Date of Award: 14 November 2014 ________________________
In the ARBITRATION between:
LESLIE MOKGOEBO
(Union / Applicant)
and
DEPARTMENT OF EDUCATION GAUTENG
(Respondent)
Union/Applicant’s representative: Mr Parsons
Telephone:
Telefax:
Respondent’s representative: Ms Lejaka ________________________________________
Telephone: _____________________________________________ Telefax: ______________________________________________
DETAILS OF HEARING AND REPRESENTATION:
[1]. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the
“ELRC”) in terms of Section 191(5)(a) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for Arbitration on 9 May, 7 July, 20 and 21 October 2014. The hearing was held at the Employer’s premises and at the Magistrate Court in Brits respectively. The process was digitally recorded. Parties agreed to submit written heads of argument by 28 October 2014. Both parties duly complied. Extension of the 14 days was granted to 17 November 2014.
[2]. Mr Leslie Mokgoebo, the Applicant (hereinafter referred to as “Mokgoebo”), was present and was represented by Mr Parsons, a legal practitioner admitted to practice in the RSA. Ms Lekaja, from the Labour Relations Division represented the Respondent.
[3]. In accordance with Section 28(2) of the Constitution, the child’s best’s interest are of paramount importance in every matter concerning that child. Section 28(3) refers to a child as a person under the age of 18 years. Whereas reference was made to minors throughout this award, it would be done by initials only.
[4]. At the outset of the hearing, the Respondent made an application in terms of Section170A (1) read with subsection (7), Section 153(3) and subsection (5) and Section 158(5) of the Criminal Procedures Act, No. 51 of 1997 (hereinafter referred to as “The CPA”), that provides for, inter alia, the appointment of an intermediary, and evidence to be given in a venue suitable for this purpose. The application was unopposed.
ISSUE TO BE DECIDED:
[5]. Whether or not the dismissal of the Applicant was substantively and procedurally fair as envisaged by Section 185 read with Section 188 of The Act. In the event that I find in the negative, I must decide upon an appropriate remedy.
BACKGROUND:
[6]. Mr Mokgoebo commenced his employment with the Respondent on 26 May 1990. He was employed as a Level 1 Educator at Eletsa Secondary School. At the time of dismissal he was earning a monthly remuneration package of R18 000-00.
[7]. During the course of his employment he was served with a notice to attend a disciplinary hearing. The hearing was set to commence on 15 August 2012. The allegations against Mr Mokgoebo were:-
“Charge 1:
Between January and March 2012 you had asexual relationship with “WK” a learner at Eletsa Secondary School where you are employed as an educator.
In so doing you contravened Section 17(1)(c)
Charge 2:
Between January and March 2012, you unjustifiably prejudiced the discipline of Eletsa Secondary School when you had a sexual relationship with “WK” a learner where you are employed as an educator.
In so doing you contravened Section 18(1)(f).
Charge 3:
Between January and March 2012 while on duty you conducted yourself in an improper and unacceptable manner at Eletsa Secondary School when you had a sexual relationship with “WK” a learner where you are employed as an educator.
In so doing you contravened Section 18(1)(q).
Charge 4:
Between February and April 2012 you had a sexual relationship with “LH” a learner at Eletsa Secondary School where you are employed as an educator.
In so doing you contravened Section 17(1)(c).
Charge 5:
On 23 February 2012 while on duty you conducted yourself in an improper and unacceptable manner at Eletsa Secondary School when you proposed love to “LH” a learner at the school where you are employed as an educator.
In r Section 18(1)(q).
Charge 6:
Between February and April 2012 you sexually assaulted “LH” when had sex with her, a learner at Eletsa Secondary School where you are employed as an educator.
In so doing you contravened Section 17(1)(b).
[8]. As a result of the hearing, Mr Mokgoebo was found guilty on all six allegations and the sanction of dismissal was imposed.
[9]. Mr Mokgoebo appealed the finding and sanction, and on 19 November 2013 the appeal authority issued the outcome, dismissing the appeal.
[10]. The Applicant is of the view that his dismissal was unfair since he did not breach a workplace rule. Insofar as procedure is concerned, he disputes the fairness of his dismissal on the following grounds:-
• Whether or not he was afforded the right to representation;
• Whether or not he was informed of the allegations in good time. According to him he was served with the notification on the day of the hearing, ie. 8 October 2012.
APPLICATION IN RESPECT OF LEGAL REPRESENTION:-
[11] The Respondent objected to legal representation at the commencement of the proceedings. The Applicant in bringing an application to be legally represented argue the matter is complex in nature. According to Mr Parsons the allegation against the Applicant involves sexual relationship. He argued that the Applicant would not be in a position to deal with the arbitration on his own. The Respondent on the other hand argued the matter is straightforward and not complex at all. The matter requires a determination on whether or not Mr Mokgoebo is guilty of having a sexual relationship with the said learner/s as per the allegations in the notice of set down.
RULING:
[12]. Having considered the argument before me against the backdrop of the Constitution of the ELRC, I have decided it would be unfair to expect of the Applicant to continue without legal representation giving specific consideration to the nature of the allegations preferred against the Applicant, ie sexual assault, which in my view is complex in nature.
[13]. Consequently the Respondent made an application for postponement arguing it would like to seek legal representation. The application was unopposed.
[14]. Despite granting the opportunity to the Respondent to seek legal representation, it nevertheless continued without legal representation on the next day of the arbitration.
SURVEY OF EVIDENCE AND ARGUMENT:
[15]. It is not my intention for the purposes of this award, to record verbatim the evidence led, submissions
made and arguments raised on record. Only the salient points of each parties’ evidence that have a bearing on the issue in dispute to be decided, are recorder hereunder.
RESPONDENT’S VERSION:
[16]. The Respondent lead the evidence of four witnesses.
[17]. Obakeng Sophia Magaret Sindane (Life Orientation Educator at Eletsa Secondary School) testified that:
[18]. She became aware that “WK” attempted to commit suicide when it was reported to her that “WK” was complaining of stomach ache. The learner was taken to the doctor to receive medical attention, where it was confirmed that she took an overdose.
[19]. “WK” explained she made the attempt on her own life because she could no longer deal with the fact that the Applicant no longer wanted to be in a relationship with her. He had apparently been in another relationship since the beginning of that year.
[20]. The relationship, according to her, was ended by the Applicant after she refused to have sexual intercourse with him. Mr Mokgoebe also threatened to see other girls if she would not have sex with him.
[21]. She did not attend school after the incident as she was admitted to a clinic in Mabopane. “WK” was terrified when she learned that her parents were going to be called. She explained that her parents are very strict and she was scared of what they would say when they learn of the relationship she had with Mr Mokgoebo. Subsequently “LH” approached her and also confessed that she was having a relationship with several educators, but and in particular she referred to the Applicant.
[22]. It is strongly prohibited to have any form of a relationship with learners other than that of a learner-educator.
[23]. When asked in cross-examination whether she has anything against the Applicant, she answered in the negative. When she was shown, what purport to be an affidavit from “LH”, (Bundle “A” Page 44) she responded by rejecting the contents as untrue, explaining it is would not make sense for her to approach the learner in September when the incident already happened in March 2012. (It must be noted that the author of the document was never called to these proceedings to testify despite an undertaking by the Applicant to call the learner). She also explained that she had never seen this document before it was shown to her in the arbitration.
[24]. “WK” (Learner at Eletsa Secondary School) testified that:
[25]. Mr Mokgoebo told her, around January to March 2012, that he loved her. She responded auspiciously saying that she also loved him. They used to meet frequently thereafter once school was out.
[26]. During or about March 2012 she accompanied Mr Mokgoebo to a shopping complex where he said he wanted to buy some alcohol before taking her to a nearby lodge. She however refused to go to the lodge. He then took her home. From then onwards, he ignored her, although he would be talking to other girls at school. This conduct of Mr Mokgoebo towards her, upset her greatly.
[27]. Ultimately, when she could no longer stand the mistreatment from the Applicant, she decided to take an overdose of pills. The date was 25 March 2012, and it was on a Sunday. The next day she went to school but had a terrible stomach ache. She then confided in a friend and told her what she had done. The friend approached Ms Sindane, a teacher for a glass of water.
[28]. Ms Sindane however demanded to be told what was going on. She confided in Ms Sindane that she was having a relationship with Mr Mokgoebo but that his behavior towards her changed after she refused an advance from him to have sex. He then rejected her which drove her to take an overdose of pills.
[29]. Ms Sindane reported the matter to the Principal and thereafter took her to the doctor. The doctor referred her to a clinic where she was hospitalized for three days. From there she went to Arcacia where she was admitted for a further four days.
[30]. She referred to her statement (Bundle “B” Pages 13 to 16), and explained that Mr Mokgoebo told her to keep their relationship a secret. He said it was wrong what he was doing and that is why she should not tell others about their relationship.
[31]. She vehemently denied the version that Ms Sindane would have asked her to lie about the whole incident. She testified that there is no reason for her to fabricate this allegation.
[32]. Under cross-examination she explained that she was in grade 10 in 2012 and she is still in grade 10 now in 2014. The reason for failing grade 10 twice in a row is because of what happened between her and the Applicant that ultimately led to a total loss in concentration.
[33]. She testified that she took 10 immune boosters when she overdosed, and although she knew it was not dangerous, she took them nevertheless as it was the only pills in their house.
[34]. In response to a statement that she was the one who was falling in love with educators and that she was even taken to task by the Principal for her behavior, she replied that it was not true. She in fact explained to the Principal that it was the Applicant that approached her and not vise versa.
[35]. She vehemently denied fabricating the version against the Applicant as he allegedly rejected her when she had a crush on him. She testified that the Applicant used to take her out to various places where he would kiss her.
[36]. The version was put to her that her parents already learned of the relationship before the suicide attempt, but she clarified the issue saying they learned of the relationship when she was hospitalised.
[37]. Tshosane Petrus Motumi (Labour Relations Manager) testified that:-
[38]. He was the representative of the Respondent during the disciplinary hearing of the Applicant. As a matter of procedure he maintained constant communication between the Respondent and the representative of the Applicant at the SADTU office. He could also recall the postponement of the hearing at the Applicant’s instance. The person that all communication was served on was Flaura Matsheta. She was the person who represented the Applicant at the time.
[39]. The notice of set down containing the allegations was served on Ms Matsheta, and she acknowledged receipt thereof. Initially there were only three charges but subsequently three more were added.
[40]. When the Applicant informed them that he only received the notice with the amended allegations, on the day of the hearing, he explained to the Presiding Officer that he served the charges on the Applicant’s representative. Subsequently the Presiding Officer phoned Ms Matsheta, putting her on speaker phone, to confirm whether the notice was received. Ms Matsheta ultimately acknowledged receiving the notice.
[41]. Under cross-examination he explained that the Applicant initially represented himself during the disciplinary hearing, and subsequently Mr Tsjwa represented the Applicant.
[42]. He disagreed with the version put to him that the Presiding Officer refused the Applicant a postponement when his representative was not available. He testified that the Applicant submitted two medical certificates for his representative. On the first occation, , the matter was adjourned, however on the second occasion the Presiding Officer decided to continue in the absence of the representative.
[43]. He agreed that the Presiding Officer noticed on the 1st of October 2012, when the hearing started, that the Applicant was not aware of the three additional charges. She accordingly ruled that the hearing must proceed on the first three charges only thereafter the hearing was adjourned to a later date to continue with the additional three charges.
[44]. Boitumelo Phuswane (The Presiding Officer of the disciplinary hearing) testified that:-
[45]. On the first day of the hearing, she postponed the hearing on the basis that the representative of the Applicant was either not available or not prepared. The hearing was again postponed on the second day of the hearing as the Applicant’s wife was sick. On the third day of the hearing, the Applicant again presented a sick note for his representative. She was suspicious of the explanation for his absence, as she asked the parties at the adjournment of the second sitting to agree on a third date in order to avoid any further delays. She explained in the absence of an agreement, she would determine the date.
[46]. Subsequently when she spoke to the representative of the Applicant, he indicated that he would not be available on the date that she proposed to continue, as he was invited to some SADTU function. When she requested a copy of the invitation, he changed his version, saying he had to go to some other country. Once more she asked for proof, but he evaded the question, by saying it was personal. She reminded him of the agreement they had during the hearing and advised him if he cannot represent the Applicant, he should communicate that to Applicant.
[47]. The date was confirmed and went ahead as communicated, but at the commencement of the hearing, she was issued with a sick note from the Applicant’s representative. She expressed her concern and explained the representative indicated he had personal matters to attend to. In spite of her concerns, she gave the Applicant the benefit of the doubt, and seeing that the hearing was scheduled for the Thursday and the Friday, she decided to adjourn the hearing to the Monday and Tuesday, as the note indicated that Mr Tsajwa would be fit to resume his duties by then. She explained that she would not take kind to any further application for postponement, unless she receives it by prior communication.
[48]. .On Monday, to her surprise, she was again served with a medical certificate. She questioned the fact that prior communication was not adhered to, as the certificate was issued on that Friday. In the circumstances she formed the opinion that the representative was using delaying tactics and accordingly made the ruling that the matter must proceed.
[49]. She then stood the matter down for a few hours in order for the Applicant to secure the presence of another representative. He replied that he did not want to be represented by any other person but Mr Tsajwa.
[50]. The hearing accordingly proceeded on the same day. As the charges were read, the Applicant raised the objection that he was not aware of the three additional charges that were added to the original notice of set down.
[51]. The representative of the Respondent informed her that the amended notice was forwarded to SADTU and that all communication was with Ms Matsheta. She then contacted Ms Masheta, putting her on speakerphone in order for all to hear. Ms Matsheta was initially arrogant, but subsequently agreed that she gave the notice to the current representative of the Applicant.
[52]. Apart from the three additional charges, the nature and contents of the notice did not change. She accordingly suggested that they proceed with the first three allegations, where after the hearing would adjourn, to deal with the additional three allegations at a later stage. The Applicant did not object to the proposal. He was then given some 15 days to prepare for the remaining three allegations.
[53]. As the hearing proceeded, the Applicant indicated to her that he was instructed not to participate in the hearing. He therefore did not plead, but he nevertheless participated in the cross-examination of the witnesses of the Respondent, by raising several objections. He also submitted closing arguments and mitigating circumstances (Bundle “A” Page 19).
[54]. When the hearing proceeded on the remaining three allegations, the representative of the Applicant was present. At the commencement of the proceedings, the representative made an application for her recusal and that the allegations against the Applicant be withdrawn.
[55]. The hearing was adjourned, and on her return she dismissed both applications stating she could not find any prejudice to the Applicant in the manner the process was dealt with and furthermore could not find a valid reason for the allegations to be withdrawn.
[56]. In making a finding on the facts before her she took into account, the testimony of the two learners who testified, and the absence of any version to the contrary as the Applicant refused to testify. In the circumstances she evaluated the evidence and was of the view the version as put by the witnesses of the Respondent is the most probable version under the circumstances.
[57]. Under cross examination she disagreed that she denied the Applicant the right to representation, explaining he was afforded the right to representation but his application for postponement was refused as the explanation for the postponement was unreasonable and unacceptable.
[58]. She further explained that according to the medical certificate the representative of the Applicant consulted on Friday, but he made no effort to communicate his inability to be present on the Monday.
[59]. The version that the Applicant did not participate in the hearing, due to the fact that he was not prepared and the process was unfair, was disputed by the witnesses. According to her the Applicant did participate, he raised objections and he entered mitigating circumstances, but he explained to her he was instructed not to participate.
APPLICANT’S VERSION:
[60]. Leslie Mokgoebo (The Applicant) testified that :-
[61]. He had a clean disciplinary record before being summoned to the disciplinary hearing that lead to his dismissal. He explained he was voted to be the teacher liaison officer by the learners. By virtue of this position, suspicion were raised that he was too close to the learners.
[62]. During 2012 he was called to the office of the circuit manager, where he was told of the complaint against him. He reminded the Principal that he had reported the very matter before when he said the learner was interested in having a relationship with him. Together they decided to call “WK”’s parents in to discuss the matter with them.
[63]. The parents attended a meeting with the Principal, but he was not part of that meeting. After the meeting he was called in by both the Principal and the Deputy Principal. He was then informed what was said to the parents.
[64]. It all started when “WK” came to him as the teacher liasing officer, to talk to him about certain matters. He could not show her away although it was clear that she wanted a relationship with him. Other teachers also warned him saying “WK” wanted a relationship with him.
[65]. Being fully aware that it is inappropriate to be involved with a learner, he decided to seek assistance from the Principal.
[66]. Despite the history of the learner, he was served, on 6 August 2012, with a notice to attend a hearing scheduled for 15 August 2012.
[67]. The hearing did not continue on the day but a postponement was granted to 30 August 2012 as his representative had a matter to attend to. His wife was admitted to hospital on 29 August 2012, and as a result he had to request a further postponement.
[68]. The hearing was postponed to 27 September 2012. Yet again the hearing had to be postponed, due to the ill health of his representative. An adjournment was then granted to the Monday and Tuesday, 1 and 2 October 2012. However on 1 October 2012, he had to submit a further sick note for his representative. The Presiding Officer however refused to postpone the matter.
[69]. He could not continue with the hearing on his own as he was not prepared to deal with the issues by himself. The Presiding Officer nevertheless ruled that the matter would proceed. As the charges were read he realised that there were additional charges to the notice that he was not aware of, In spite of his objection, the hearing proceeded with the first three charges. The hearing was thereafter postponed to a later date.
[70]. Under cross-examination he explained that timeline of events as it happened. He stated he reported the matter to the Principal during February, or March 2012. The Principal called him around April 2012 to inform him about the complaint against him. When he was asked why he did not escalate such a serious matter, he blamed the system stating it requires having a discussion with the parents.
[71]. He disputed the version put to him that although he was the teacher liaison officer he did not know how to deal with children who misbehaved. When the version was put to him, that as teacher liaison officer, he dealt with minor things but when it came to such a serious matter as a learner wanting to have a relationship with him, he did nothing, he responded he wrote a letter to the parents.
[72]. .In response to a question, why he did not report the incident in the incident book, he replied it was for the Principal to do so.
[73]. In terms of a question put to him why “LH” would fabricate the version against him, he explained that he was not the only educator who was accused of having a relationship with learners. He also made the comment that learner “LH” made no accusations against him, and then qualified his answer to say at least not in the arbitration. He nevertheless admitted that “LH” testified against him in the disciplinary hearing.
[74]. He also admitted that it was strange to hear two learners from the same school making the same allegations against him, but argued he did not cross-examine them during the hearing as he was not prepared.
[75]. He admitted that he may have made a mistake when he stated at the commencement of this process that he received the charge sheet on 8 October 2012. In fact he received the charge sheet on the day of the hearing, 1 October 2012.
[76]. He denied raising any objection during the hearing, but when the question was then put to him why he did not challenge the evidence of the Presiding Officer when she testified during these proceedings, he answered by just repeating that he did not object during the hearing.
[77]. In relation to whether he would call the Principal to testify on his behalf, he explained that the Principal is on pension and therefore he would not testify during these proceedings. Furthermore by the time that these allegations surfaced, the Principal indicated that he was not going to involve himself in the matter. He could not answer the question why he did not ask the Principal to make an affidavit as he did with “LH” accept to repeat the Principal did not want to be involved.
[78]. Under re-examination he changed his version from saying the Principal completed the incident book to he was under the impression the representative of the Respondent was referring to the instruction book.
[79]. Kgomotso Nta (learner at Eletsa Secondary School) testified that:-
[80]. She was in school with the Applicant and “WK”. At some point during 2011 “WK” asked her whether she (Ms Nta) was in an intimate relationship with the Applicant. When she replied in the negative, “WK” said to her that she was interested in having a relationship with the Applicant.
[81]. Subsequently they were called to the Principal’s office to answer to questions whether they were having relationships with the Applicant. “WK” apparently informed the Principal that they had a relationship with the Applicant.
[82]. Under cross-examination she admitted that she was not one of “WK”’s friends and would therefore not be in a position to answer why she would have discussed this matter with her. She did however confirm that “WK” tried to commit suicide because she loved the Applicant and he did not have time for her.
[83]. She also admitted to have made a mistake during her evidence in chief when she said that she knew “WK” from 2011. She got to know her in 2012 and that is also when the incident happened.
ANALYSIS OF EVIDENCE AND ARGUMENT:
Legal considerations:
[84]. According to Section 192 of the Act, the onus in any proceedings concerning a dismissal, is first and
foremost on the Applicant to establish the existence of a dismissal. Once that onus had been discharged, the Respondent must prove the fairness of the dismissal.
[85]. In the present matter, the existence of the dismissal is not in dispute, and therefore the Respondent must show that a valid reason exists for the dismissal of the Applicant and that such dismissal was imposed in accordance with a fair process. In terms of Section 188(2) of The Act, the Commissioner is to take cognisance of any relevant code of good practice, when considering the fairness of such dispute.
[86]. According to the Respondent, the Applicant is guilty of misconduct in that he had a sexual relationship with a learner from the same school where he was teaching. The Respondent argued it did not call the second complainant, “LH” because the Applicant at all times indicated that they would be calling her.
Procedural fairness:
[87]. Insofar as the procedural fairness of a dismissal is concerned, Van Niekerk conceptualized ‘procedural fairness” in Avril Elizabeth Home for the Mentally Handicapped v CCMA & others (2006) 9 BALR 833 (LC) where the court held that the basic requirements of the Act as contained in Schedule 8 thereof, should be applied as the test for procedural fairness and the reliance of a more stringent approach should be abandoned.
Van Niekerk remarked that:-
“It follows that the conception of procedural fairness incorporated into the LRA is one that requires an investigation into any alleged misconduct by the employer, an opportunity by any employee against whom any allegation of misconduct is made, to respond after a reasonable period with the assistance of a representative, a decision by the employer, and notice of that decision.”
[88]. The Applicant challenged the fairness of his dismissal on two specific grounds. One that he was not afforded the right to representation and more specifically that the Presiding Officer refused a postponement when his representative was ill, and two, that he was handed the amended charge sheet on the day of the hearing thereby denying him the right to properly prepare for the hearing.
[89]. The Applicant during cross-examination of the witness from the Respondent and again during closing arguments, made a calculated attempt at expanding the grounds on which he originally challenged the procedural fairness of his dismissal. It was clearly explained at the onset of the hearing that all issues in dispute must be listed before the commencement of the proceedings. The issues in dispute were clearly identified and agreed upon before the hearing commenced. The Applicant was also at all times represented by a legal practitioner and for these reasons no belated challenges will be entertained.
Was the Applicant afforded the right to representation?
[90]. The disciplinary hearing commenced on 15 August 2012. It was postponed to 29 and 30 August, 27 September and then to 1 and 2 October 2012. On at least 2 to 3 instances, the Presiding Officer granted a postponement to the Applicant due to either his own unavailability or that of his representative. Against this background the Applicant, again on 27 September 2012, handed in a sick note stating his representative was ill. The Presiding Officer postponed the hearing to Monday 1 and Tuesday 2 October 2012 to allow the representative to recuperate but requested any further postponement to be clearly communicated prior to the next sitting. Without observing this request, the Applicant, on Monday 1 October 2012 handed in a further sick note on behalf of his representative. The Presiding Officer, rightly so in my view, refused the request for postponement and continued with the hearing. It is clear that she was suspicious of the certificate because the representative informed her before the hearing of 29 August 2012 that he had alternative arrangements and would not be available. When she insisted on proof he changed his version to state that he had to go to Lesotho for personal reasons. In my view the Presiding Officer did not act unfairly when she refused the postponement under the specific circumstances. Presiding Officers must act in the interest of both parties and must dispose of matters in an effective and expeditious manner ensuring the right to finality is not unreasonably prejudiced. The Applicant argued that the Presiding Office could not ignore the medical certificate handed up by the Applicant.
[91]. It was held in Mgobhozi v Naaidoo NO & others (2006) 3 BLLR 242 (LAC) that medical certificates without supporting evidence from doctors constitute hearsay evidence and courts must be especially vigilant to prevent abuse. The court held that the absence of affidavits from the doctors led to the inference that they were not willing to defend the certificates under oath.
[92]. The right to a pre-dismissal hearing in Old Mutual Life Assurance Co SA Ltd v Gumbi (2007) 16 (SCA), imposes upon employers nothing more than the obligation to afford employees the opportunity of being heard before employment is terminated by means of a dismissal.
[93]. In my view the Respondent afforded Mr Mokgoebo the opportunity to defend himself against the allegations of misconduct that ultimately led to his dismissal. Mr Mokgoebo, although present in the hearing, refused to make use of the opportunity. He refused to cross examine the witnesses and failed to put his own version before the Presiding Officer. The argument from Mr Mokgoebo that he was not prepared for the hearing as the preparation was done with his representative, is bizarre as representatives obtain their mandate from the accused employee. Who better than Mr Mokgoebo himself then to put questions to the witnesses?
[94]. Considering all the facts before me I am inclined to accept the Respondent afforded the Applicant a fair hearing. The Presiding Officer has granted various requests for postponements in the past despite the suspicion surrounding the first medical certificate. She specifically requested any further requests for postponements to be arranged or communicated prior to the hearing. This evidence was not challenged by the Applicant nor was the version put that he only learned of the certificate on the morning of the hearing. It would therefor appear the representative consulted a doctor on that Friday afternoon where he obtained a further certificate but failed to properly communicate the fact to the Respondent until the Monday morning when the hearing started. The Presiding Officer was within the boundaries of fairness to refuse to accept the medical certificate in the absence of any supporting evidence from the doctor.
[95]. In the circumstances it is accepted the Respondent acted well within reason and fairness.
Whether or not the Applicant was afforded sufficient time to prepare for the additional three charges?
[96]. It must be noted that the Applicants version in this regard was not clear, at the commencement of the arbitration hearing it was stated that he received the charge sheet with the additional charges only on the 9th of October 2012. During the process he conceded that he learned of the additional three charges on 1 October 2012 when the hearing commenced. Be that as it may, the hearing of 1 October 2012 did not proceed on the additional charges. Only the first three charges was entertained whereupon the hearing was adjourned to a further date. The Applicant therefore had ample time to prepare for the additional charges, to be precise he had 15 days. The evidence of the Presiding Officer that the hearing only continued 15 days later was never challenged by the Applicant.
[97]. In the circumstances I am not convinced that the Applicant was not afforded sufficient time to prepare for the hearing.
Substantive fairness:-
[98]. The Respondent’s version was presented via the testimony of two witnesses. The first witness, the complainant herself and the second Ms Sindane, who appears to be the first report. According to the testimonies of the two witnesses, the Applicant made himself guilty of misconduct in a manner that is offensive to the provisions of the Employment of Educators Act No 76 of 1998 (hereinafter referred to as “The EEA”), and more specifically that he had a sexual relationship with a learner/s from the same school where he was teaching. As a result of this behavior, the rights of the learner/s were adversely affected.
[99]. The Respondent contended that the behavior displayed by the Applicant is of such serious nature that dismissal is mandatory according to the provisions of The EEA, but in addition it argued that the trust relationship between the parties had been broken beyond any repair. The Applicant on the other hand denied any involvement and prayed for an order of retrospective reinstatement.
The charges before me:-
[100]. In relation to charge 4, 5 and 6 the only evidence that was tendered amounts to hearsay evidence. The Respondent did not bring an application in terms of Section 3 of the Law of Evidence Amendment Act, despite drawing their attention to the provisions of the said Act. The Respondent argued that the Applicant at all times indicated that he would call “LH” to testify on his behalf. The onus is on the Employer to prove the fairness of the dismissal. It is not sufficient to rely on the argument that the Applicant indicated he would call “LH” as a witness. At the very least, when the Respondent realized the witness is not willing or able to testify, it should have made an application in terms of Section 3 for hearsay evidence to be admitted into the record.
[101]. In terms of charge 1, the Applicant is accused of having a sexual relationship with “WK”. There is however no evidence before me to support such an application. According to “WK” she had a physical relationship with the Applicant that involved physical contact including kissing. At no stage did she adhere or succumb to the Applicant’s advances to sleep with him. Her testimony further did not allude to any sexual contact of whatever nature between the two of them. In the circumstances I am not convinced that the Applicant is in breach of Section 17(1)(d) of the EEA.
[102]. Turning to the second and third allegations, being unjustifiably prejudicing the discipline of the Respondent and or displaying improper and unacceptable behavior as an Educator, I noted the following: - From the evidence before me, I accept the Applicant did have a relationship with “WK”. He tried desperately to cast doubt on the version of the Respondent but without much success. According to him Ms Sindane incited learners to bring allegations of misconduct against him. Ms Sindane however rejected this version with contempt and no further questions were put to her in this regard. Surprisingly the Applicant then also accused “WK” of fabricating this version against him. According to him she had a crush on him and wanted a relationship with him, but when he refused to be in a relationship with her, she fabricated this version against him in an act of vengeance. He explained that he reported the matter to the Principal before the attempted suicide of “WK” and that her parents were subsequently called in to discuss the matter. He could not testify as to what was said in the meeting as he was not present in the meeting and he did not call the Principal to witness what transpired and what was discussed. “WK” on the other hand was adamant that her parents only learned of the relationship when she was admitted to hospital after taking an overdose of pills. The evidence of Ms Sindane in this regard was very valuable. She corroborated the version of “WK”, explaining that WK” was terrified when her parents were called to the hospital. She stayed with WK” when they were informed as to the reason for the attempted suicide of “WK”. She alluded to the fact that “WK” said to her that her (“WK”’s) parents were very strict and they would not take kind to the relationship that she had with the Applicant. This version was not challenged in cross-examination.
[103]. Mr Moekgobo did not impress me as a witness. He was evasive when questions were put to him in cross-examination and his version changed in several aspects during this hearing. To demonstrate this point I will refer to but one such instance although there are more. Initially, he blamed Ms Sindane for instigating the learners to make this claim against him, subsequently he accused “WK” of having fabricated this version against him in revenge for not engaging in a relationship with him, and he never gave any explanation which version is correct or offered to clarify the link between these two versions.
[104]. Conversely “WK” and Ms Sindane impressed me as witnesses, they were crisp and clear in all aspects of their testimony and no internal or inherent contradictions were noticed in their testimonies.
[105]. Having considered both versions, I am convinced the probabilities favour the version of the Respondent. It is highly unlikely that a person would attempt to commit suicide merely because someone else refuse to have a relationship with them. Moreover, Mr Mokgoebo’s own witness, Ms Nta’s testimony supports the version of the Respondent, when she confirmed that “WK” made the attempt on her own life, because Mr Mokgoebo did not have time for her.
[106]. In the circumstances I am of the view the Applicant is indeed guilty of prejudicing the discipline of the Respondent and of acting in an improper and unacceptable manner. The fact that the allegation refers to a “sexual relationship” is neither here nor there. The true nature of the allegation against Mr Mokgoebo did not change, accept for the inclusion of the word “sexual”. Even if the word “sexual” had been excluded from the allegation, the meaning of the allegation would not have changed.
[107]. Mr Mokgoebo is an Educator who is placed in a position of trust. He abused this trust to satisfy his own dim motives, and in the process disregarded the rights and dignity of the learners, who are the most vulnerable of society. It is clear from the evidence of “WK” that Mr Mokgoebo had the intention of having a sexual relationship with her, and even though the relationship did not reach that stage, it would have was it not for “WK”’s refusal. The safety of children is paramount and supersedes any right of adults. For the reasons mentioned above, I find the Applicant is indeed in breach of Section 18(1)(f) and (q) of the EEA.
[108]. Contrary to Section 17, Section 18 of the EEA does not carry a mandatory sanction of dismissal once a breach is established. In considering the appropriateness of the sanction, I had regard to the views held by the Constitutional Court in Sidumo v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC), wherein the decision of whether or not dismissal was an appropriate sanction for the contravention of the rule or standard, is conceptualized in an evaluation on the basis of whether or not the Employer’s decision to dismiss the Employee was fair. In reaching this conclusion, consideration ought to be given to the position and interests of both the Employer and Employee in order to make a balanced and equitable assessment. The court had the following to say:-
“There can be no question that the ultimate test that a Commissioner must apply is one of fairness. The test is foreshadowed both in Section 23 of the Constitution and Section 188 of the LRA………”
[109] Earlier at Par. 75 in Sidumo (supra) Navsa J commented as follows:
“…The CCMA correctly submitted that the decision to dismiss belongs to the employer but the determination of its fairness does not. Ultimately, the commissioner’s sense of fairness must prevail and not the employer’s view…”
and at Par. 78:-
“In approaching the dismissal dispute impartially, a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record….”
[110] Having considered the importance of the Rule in the workplace as argued by the Respondent, and recognizing the position of trust held by the Applicant, moreover that he was not just any Educator but he was also a teacher liaison officer, elected by the learners to act as the liaison between them and other educators, I am of the view the that Educators are duty bound to uphold and promote the basic human rights of the learners as embodied in the Constitution of South Africa. They should furthermore commit themselves to do all within their power to act in accordance with the ideals of their profession. Their conduct must at all times be proper and becoming. Educators must respect the dignity of the learners (see the Constitution of South African and the SACE Code of Conduct) and must ensure that they at all given times have the best interests of the children at heart (Section 28 of the Constitution).
[111]. In contrast the Applicant admitted to being aware that it is wrong to have a relationship with learners, but argued that he was wrongfully accused and that he should be reinstated retrospectively to his position.
[112]. A breach of this rule, as argued by the Respondent can have far reaching consequences for the learners. A further crucial aspect for consideration in this regard is the fact that the Applicant had not shown any remorse.
[113]. In an earlier dictum of Conradie JA in De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation and Arbitration and others (2000) 21 ILJ 1051 (LAC) at par. 22 a similar approach was also followed when the court pronounced that -:
“A dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise.”
[114]. Children are vulnerable and very susceptible at this stage and should not be exposed to educators who use the school grounds as hunting grounds for their own selfish motives and desires. In this regard I find it hard to believe that additional training or any other sanction short of dismissal would be appropriate in the circumstances. It is for the reasons mentioned above that I decline to intervene with the sanction of dismissal that was meted out to Mr. Mokgoebo, having exhaustively considered the circumstances.
AWARD:
[115]. In the light of the above, I find that the dismissal of the Applicant, was substantively fair and procedurally fair.
[116]. The Respondent, The Department of Education North West is not ordered to reinstate the Applicant to his previous position.
[117]. I make no order as to costs.