Case Number: PSES 24-15/16 WC
Province: Western Cape
Applicant: NAPTOSA obo Isaacs
Respondent: Department of Education Western Cape
Venue: Department offices in Cape Town
Award Date: 12 June 2015
Arbitrator: S H Christie
NAPTOSA obo Isaacs APPLICANT
Department of Education (Western Cape) RESPONDENT
CASE NUMBER: PSES 24-15/16 WC
DATE/S OF HEARING: 12 June 2015
CLOSING ARGUMENTS 26 June (WCED) 29 June (NAPTOSA)
DATE AWARD SUBMITTED: 10 July 2015
NAME OF PANELLIST: S H Christie
DETAILS OF HEARING AND REPRESENTATION
1.The arbitration hearing was held at the premises of the Department in Cape Town on 12 June 2015. The applicant was represented by Mr R Ahmed a union official and the Department by Mr J Horne a labour relations officer.
ISSUES IN DISPUTE
2. The Applicant claims that on 10 January 2015 the Department unfairly dismissed him for misconduct. He seeks reinstatement with retrospective effect.
SUMMARY OF EVIDENCE AND ARGUMENT
3. The facts were common cause. The applicant was an educator at the Phoenix Secondary School. He was alleged to have violated section 18(1)(f) of the Employment of Educators Act 76 of 1998; specifically it was alleged that he unjustifiably prejudiced the administration, discipline or efficiency of the School because he had sex with a Grade 12 learner at the school. In the alternative and arising from the same incidents he was charged under s 18(1) (q) of the act and that his conduct in having sex with the learner amounted to improper, disgraceful or unacceptable conduct.
4. It was common cause that the girl had been a pupil at the school two years earlier. She became pregnant in Grade 11 in 2012. She left school, married the father of their child and returned to the school in 2014 and was in Grade 12. Isaacs was her business studies teacher. She invited Isaacs to access her Face Book page and communicated with him via WhatsApp and later confided in Isaacs about difficulties she was experiencing in her marriage. She told him she wanted to have sex with him. At first he rejected the proposal as they are both married. But later he agreed and they had sex in the computer laboratory at the school. They continued to communicate and had sex a second time. A week or so later the pupil’s husband a former pupil at Phoenix found out what had been going on and there followed several BlackBerry messages from the learner’s husband to Isaacs who apologised for hurting him, imploring him not to tell the principal.
5. The matter was reported to the principal Mr M Abrahams who called a meeting at the school when he gave the learner’s mother and brother an opportunity to consider whether they would be able to settle the matter informally or whether it should be reported to the Department. Isaacs did not initially confess to Abrahams but eventually admitted what had happened. He was not suspended. The girl’s mother-in-law has another daughter at the school and Isaacs admitted that his presence at the school may be difficult for her to accept. Indeed she told the principal that if Isaacs was kept on at the school she would report the matter to the media.
6. Isaacs accepts that what he did was wrong, but felt that he had succumbed to the temptation because he “was weak”. He also accepted that if his conduct were made public it would harm the reputation of the school. He also accepted that the trust relationship had been broken but that it was not irreparably damaged. He pleaded guilty to the main charge. The presiding officer ruled on his plea finding that dismissal was appropriate.
7. On 16 January 2015 Isaacs appealed against the sanction, contending it was too harsh. He filed in mitigation affidavits from parents and learners at Phoenix pointing to his excellence as a teacher and leader; that the children confided in him.
8. The principal testified that the school was in a difficult area but that Isaacs was a strong teacher and the school had benefited from his commitment. However he had mixed feelings about what Isaacs had done and was shocked by the revelation.
9. The WCED argues that as a teacher Isaacs was the de facto guardian of learners. The WCED is the custodian of the learners’ constitutional right to “receive education in a safe school environment.” He also cited the UN Convention on the Rights of the Child. These constitutional imperatives require the Department to ensure “that the learner’s right to dignity and a safe school environment is realised.” Although Mr Abrahams was prepared to have Isaacs back in the school, the rights of the learners far outweigh the subjective opinion of the principal.
10. NAPTOSA argues that it is significant that the department did not charge Isaacs under section 17 - Serious misconduct which provides that “an educator must be dismissed if he or she is found guilty of (c) “having a sexual relationship with a learner of the school where he or she is employed.” Instead it charged him under s 18 for which dismissal is not mandatory. He argued that although the employee was charged with prejudicing the administration and discipline at the school there was not evidence that Isaacs’ conduct had actually prejudiced the school or that the employment relationship had broken down irretrievably. He relied on Edcon Ltd v Pillemer NO (2009) 30 ILJ 2642 (SCA as authority for the proposition that without an evidentiary basis it would be improper to make a finding that the employment relationship had broken down irretrievably. Ahmed also pointed to the fact that principal Abrahams had indicated that he would be willing to rebuild the employment relationship and that although the incident took place in the third term of 2014 and the facts became known to the principal soon after, he continued to work at the school through the fourth term and until the outcome of the appeal on 11 February 2015. Although NAPTOSA does not condone sexual assault or harassment of learners, the learner pursued him and she “displayed amorous behaviour, is already a married woman with a child. His actions were certainly not persistent or unsolicited and / or unwanted. … She was clearly a willing participant, and therefore the employee’s conduct cannot be constituted as being unlawful.” He concluded that since his dismissal he has continued to tutor learners from his home with the support of their parents and he filed in support a petition from 14 learners and their parents citing that he was a “very caring, funny, inspirational teacher.”
ANALYSIS OF EVIDENCE AND ARGUMENT
11. No cogent reasons were tendered by the Department for its decision to frame the allegations in terms of section 18 of the Act rather than section 17. The undisputed facts were that Isaacs had sex with a learner at his school. I agree with the contentions put up by the legal adviser to the Department in considering his appeal that the legislature views sexual relations between an educator and a learner in a very serious light. The mere fact that the charge has been formulated under the ‘misconduct’ rather than the ‘serious misconduct’ provisions does not detract from the gravity of the offence, nor does it preclude a presiding officer from imposing dismissal as a sanction ‘if the nature or extent of the misconduct warrants dismissal (section 18(3)(i)).”***
12. NAPTOSA argues that the fact that this was not sexual harassment should reduce Isaacs’ blameworthiness. I disagree. The SA Council for Educators (SACE) receives many complaints about sexual misconduct by educators on learners. The SACE Code of Professional Ethics outlines the conduct that is expected between educators and learners. Educators must respect the rights of learners and refrain from “any form of sexual relationship with learners.”
13. I am not persuaded that the fact that the learner pursued Isaacs is a relevant fact in mitigating the gravity of his conduct. He knew she was troubled. The fact that she is married and had a child, does not make her an adult vis-à-vis the school or Isaacs as educator. This was not a sudden incident: there had been a build-up as Isaacs behaved inappropriately some time before the events in the computer laboratory. He allowed or even welcomed her attentions through the BBMs and WhatsApp communication. Even if as he claims he was tempted, he should have deflected her attentions. His only defence is that he was weak. Well that’s simply not good enough. He was required by his position as an educator in a public school to guard against placing himself in a situation in which sexual relations could occur. He did not do so.
14. When the girl’s husband found out he begged him not to tell the principal. So his protestation in the disciplinary enquiry that he had confessed to the principal and showed remorse is not persuasive. Remorse is being sorry for what one has done; it is not self-pity after being caught out.
15. Mr Ahmed’s reliance on the Edcon case is unpersuasive as that deals with a commercial relationship whereas this is a case in which a man stood in a position of authority over a vulnerable young woman. I also think that his reliance on the opinion of Mr Abrahams is misplaced. Mr Abrahams appears to have been willing to conceal the matter through a private settlement with the girl’s mother-in-law. This was wholly improper. Furthermore he only reported the complaint to the Department after the woman threatened to go to the media. In my view this amounts to a serious dereliction of his duties and there appears to have been a gap in his accountability to the learner and her family. I speculate that the lack of communication about the sexual misconduct may be related to the stringent provisions of the Sexual Offences Act, section 54(1), which makes it a crime for an educator to fail to report a sexual offence against a child if that educator “knows” about it.
16. WCED argues correctly that the rights of the learners outweigh the subjective opinion of the principal. The rights of a learner include the right to be protected against their own vulnerability. She was a child in 2012 when she became pregnant and had to leave school. Isaacs knew this and when she approached him in 2014 he should have taken active steps, including confiding in his principal about what was happening. He had been advised by Mr Abrahams to avoid being too close to the learners.
17. Mr Isaacs accepted that the school would suffer reputational harm as a result of his conduct.
I find that the WCED had a valid and sufficient reason to terminate the employment relationship and all the applicant’s claims are dismissed.
S H Christie