PSES 358-14/15
PSES 358-14/15
Award Date:
30 July 2015
Case Number: PSES 358-14/15
Province: Gauteng
Applicant: SADTU obo N Ramps
Respondent: Department of Education Gauteng
Issue: Unfair Labour Practice - Refusal to Re-instate i.t.o an agreement
Venue: Teddy Bear Clinic in Parktown
Award Date: 30 July 2015
Arbitrator: Ravi Naidoo
IN THE MATTER BETWEEN:
SADTU obo N Ramps Union / Applicant / Employee party
And
Gauteng Department of Education 1st Respondent / Employer party
Union/Employee’s representative: Tiyani Chauke
Union/Employee’s address:
Telephone:
011 331 1444
Fax:
011 331 1445
Employer’s representative:
M Jaffer
Employer’s Address:
Telephone:
Fax:
1.Details of hearing and representation:
The arbitration hearing commenced on the 29 April 2015 at the Teddy Bear Clinic in Parktown, Johannesburg and remained part heard. Parties agreed to reconvene on 11 June 2015. The matter was finalised on 11 June 2015 at the offices of the Gauteng Department of Education at 111 Commissioner Street. The applicant was represented by Tiyani Chauke from SADTU. The respondent, GDE, was represented by Moffidah Jaffer from the respondent’s Labour Relations Department. The parties filed closing arguments which was noted.
2.Issue to be decided:
1) Whether the dismissal of the applicant was procedurally and substantively fair.
2) The applicant was charged with alleged misconduct relating to alleged sexual harassment of a learner.
3) The applicant brought the following procedural challenges:
The duration of the disciplinary enquiry was conducted over an unreasonable timeframe. The matter was not finalised within 90 days.
Alleged bias of the presiding officer, due to the presiding officer advising the applicant of the second adjourned date of the disciplinary enquiry.
The disciplinary enquiry was started afresh on 12 November 2013 despite the matter originally commencing on 24 April 2013.
The respondent allegedly denied the applicant access to the audio recordings of the hearing which commenced on 24 April 2013
4) In terms of substance, the applicant denied the charges in its entirety.
3.Background to the issues:
1) The applicant commenced employment with the respondent on 20 February 2012 as a PL1 educator. The applicant was dismissed on 06 August 2014. The applicant earned R18675-00 per month. The applicant sought retrospective reinstatement.
4. Survey of the evidence and argument:
4.1 Respondent’s Evidence
4.1.1 Witness 1: Charmaine Trent testified as follows:
1) The witness is a Labour Relations officer serving the Gauteng Department of Education. The witness has served in this position for nine years.
2) The witness was the presiding officer at the applicant’s disciplinary inquiry.
3) The witness confirmed that she did send correspondence to the applicant relating to starting the disciplinary enquiry afresh. At the initial sitting of the disciplinary enquiry, the applicant did not have a representative present. The witness postponed the hearing in order to afford the applicant an opportunity to seek representation.
4) The applicant proceeded to seek representation from his union. The applicant’s union representative came from another province. The matter was scheduled for two days. On the second day of the inquiry the applicant’s representative failed to arrive. The witness again proceeded to postpone the matter.
5) When the matter convened again there was an issue with the applicant’s representative. The applicant had a new representative. The representative in question was not present when the respondent’s witnesses had testified. The witness then tried to facilitate that the respondent try and make available the audio recording of the previous sitting such that the applicant’s representative could familiarize himself with same.
6) The witness postponed the hearing in order to allow the applicant and his representative to obtain the audio recording from the respondent. In the interim the initiator for the respondent went on maternity leave.
7) The applicant then contacted the witness regarding the audio recording. The recordings could not be obtained. For the benefit of the applicant the witness suggested that the hearing commence afresh.
8) A new initiator by the name of Valerie was appointed to represent the respondent. The initiator advised the witness that they were unable to make contact with the applicant and that they had served the notification on the applicant’s land lady. On 1 October 2013, the witness took it upon herself to engage the applicant to set the matter down for 8 and 9 October 2013. The same correspondence that was sent to the applicant was served on the department.
9) The witness indicated that as presiding officer she was merely advising parties of the further dates when the disciplinary inquiry would convene.
10) The alleged unreasonable delay was for the applicants benefit in order to allow him to secure proper representation. The delay was not that of the respondent. It was due to the applicant’s lack of representation and the inconsistency of the applicant’s representation that the matter was delayed.
11) The applicant agreed to the matter convening afresh. The applicant was in agreement because he had a new representative who was not privy to the initial testimony of the respondent’s witnesses. On this basis the decision to hear the matter afresh was purely to assist the applicant such that he would not be disadvantaged in any way.
12) If the inquiry did not start afresh, the applicant’s representative would have been at a disadvantage because the respondent had already presented its case.
13) The audio recording was only requested in order to try and bring the applicant’s new representative up to speed with the enquiry. When the disciplinary enquiry started afresh, there was no need for the initial recording.
14) The disciplinary inquiry convened afresh on the 12th and 13th November 2013. The witness had a problem with the recording device and requested that the district office provide her with same. Due it not being the witness’s recorder she requested a CD to be cut of the recording, which was facilitated by the IT department. A CD was handed to the witness which she labelled and submitted for the record. The witness indicated that she did not have any need to listen to the recording because there were only three witnesses presented in total and she had taken detailed notes. No transcripts were made of the recording.
15) The witness indicated that the respondent has a zero tolerance policy in terms of sexual harassment. Parents placed their trust in the respondent to keep their children safe and such transgression would be considered to be a serious breach of trust.
4.1.2 Cross Examination
1) The witness indicated that there were previous occasions where the presiding officer would inform parties of further dates of the disciplinary enquiry if the matter was adjourned. The initial notice, however, is the responsibility of the respondent. As the presiding officer the witness had to ensure that the hearing was finalized in the quickest possible time.
2) It was the applicant who initially made the request for the hearing to commence afresh. At first the witness had refused this request. However, when the initiator who was representing the respondent went on maternity leave, the witness ceded to the request of the applicant to start the hearing afresh.
3) According to the applicant he indicated to the witness that is union was refusing to represent him.
4) The applicant had made contact with the witness on two occasions regarding his difficulty in obtaining the audio recording of the inquiry which sat on 24 April 2013.
5) In June when the matter convened again, the applicant came with a new representative. By this time the employer had already concluded its case.
6) The witness denied that she made a ruling that the applicant should be furnished with the audio recording for 24 April 2013. The witness indicated that she merely facilitated to assist the applicant and requested the department to provide the recording to the applicant.
7) On 5 June 2013 the hearing did not proceed because the applicant was not prepared due to him having a new representative.
8) There was only a single hearing. The witness denied that the applicant had three separate hearings.
4.1.3 Re-Examination
1) It is common for the presiding officer to communicate with parties to inform them of further dates when the hearing would convene. This does not mean that the presiding officer has developed an interest in the case.
4.1.4 Witness 2: Sello Peter Molusi testified as follows
1) The witness is familiar with the applicant. The applicant was the witness’s sister in-law’s teacher.
2) Shivuri Melita is the witness’s sister-in-law. She shared the shack in which the witness lived with his wife and two children. The witness and his wife have a separate room.
3) On Monday 11 March 2013, the witness was on leave. The witness was surprised that Melita Shivuri and a friend came home early. Both Melita Shivuri and her friend were silent. The witness asked what was wrong and Melita Shivuri indicated that she had something to tell them. Melita Shivuri became emotional and explained that she had cried in the classroom. She indicated that she was harassed at school on the Saturday by the applicant. Melita Shivuri indicated that they had maths class from 11 AM to 2 PM. She was seated in the back of the classroom on the extreme right of the class. Her friend was seated in front of her. The applicant approached and sat next to her and allegedly asked “what this woman’s problem was?”. The applicant then proceeded to place his hands on the learner’s thigh and began rubbing it.
4) The witness proceeded to give hearsay testimony of what had allegedly transpired and as it was told to him by Melita Shivuri on the day in question.
5) The witness asked Melita Shivuri why she had not told them about the incident on the Saturday when it occurred. Melita Shivuri indicated to the witness that she would not be believed and she thought she was strong enough to deal with the issue. The witness indicated that Melita Shivuri indicated to him that on the Monday she had become emotional when she recalled what had happened and began crying. The head of the Student’s Representative Council noticed Melita Shivuri’s distress and arranged for early release from school
6) The witness indicated that as soon as he became aware of the incident, the witness together with his wife, Melita Shivuri and her friend proceeded to the school. The incident in question was related to the principal who indicated that he would take up the issue with the Department of Education.
7) The principal advised the witness to take Melita Shivuri to the social worker. Melita Shivuri met with the social worker on the Wednesday.
8) A criminal case was also opened. The weeks after the case was filed, the investigating officer indicated to the witness that the case could not proceed and was thrown out of court.
9) Melita Shivuri was provided with counselling to deal with the incident because she had become emotional.
4.1.5 Cross Examination
1) It was common cause that the witness was relating the story as it was told to him by Melita Shivuri and that he did not himself witness the incident in question.
2) The witness confirmed that Melita Shivuri was emotional when she returned from school early on a Monday.
3) Melita Shivuri had indicated to the witness that she was surprised and startled at the applicant’s behaviour because she did not expect a teacher to behave in this manner.
4) The witness denied that he had filed a criminal charge relating to alleged rape.
5) Melita Shivuri’s friend had accompanied her home on the Monday because Melita Shivuri had become emotional at school.
4.1.6 Re-Examination
1) No questions were asked in re-examination
4.1.7 Witness 3: Melita Shivuri Testified as follows:
1) The witness indicated that she was currently 19 years old. The witness would turn 19 in July 2015.
2) The witness indicated that she was in grade 12 in 2014. The witness was currently awaiting results of her supplementary exams.
3) The applicant was the witness’s math teacher in 2013 when the witness was in grade 11.
4) On Saturday, 9 March, the witness attended Maths and Physical Science classes at school.
5) At around 11:30 AM they attended maths class. The applicant was the maths teacher.
6) They were given classwork as well as homework to complete. The classwork had to be completed in class. The applicant walked around the class to check what the Learners were doing.
7) The witness and her friend indicated to the applicant that they had completed their work. The applicant proceeded to the witness’s desk and said “what was the problem of this woman”. The applicant proceeded to sit on the right-hand side of the witness and took the book to mark the work. Whilst seated next to the witness, the applicant proceeded to rub his thumb on the witness’s thigh. The witness moved away, but the applicant continued to rub his thumb on the witness’s thigh.
8) The applicant then instructed the witness and her friend to proceed to the staff room. When the applicant arrived at the staff room, he instructed where the witness and her friend should be seated. The witness then proceeded to mark the witness’s friend’s book. At that point a learner by name of Lesego approached the applicant to ask him some questions concerning equations. The witness continued doing her work.
9) The applicant then proceeded to brush the witness’s thighs with his hand. The witness tried to distract the applicant by asking for a calculator, however the applicant continued to rub the witness’s thighs. The witness then took her scribbler (book) and placed it on her lap in the hope that this would make the applicant stop. The applicant proceeded to remove the book from the witness’s lap and indicated to her that the book would disturb him as he continued to rub her thigh. The applicant then asked the witness “How does it feel?”. The witness indicated to the applicant that she was scared and the applicant proceeded to laugh at her and continued rubbing her thigh.
10) The witness then proceeded to jump up and indicated to the applicant that she would complete her work at home.
11) When the witness left, her friend followed. The witness asked her friend if she had seen what had occurred with the applicant. Her friend indicated that she did not. She only heard the comments that were being made, but did not know what they were talking about.
12) On the way home the witness told her friend what the applicant had done. Her friend told her that she should report the incident.
13) On her arrival at home the witness kept the incident to herself. On the Monday the applicant sent a learner to tell the witness’s class to submit their workbooks. The witness proceeded to the staffroom, however, when she saw the applicant, she asked her friend Moira to hand in the book for her. The witness then began thinking about what had transpired on the Saturday and began crying. The witness then got permission to leave school early. The witness went home and was accompanied by her friend Karabo. On arrival at home the witness told her sister and brother-in-law what had happened on the Saturday, with the applicant. The witness together with her sister and brother-in-law proceeded back to school to report the incident to the principal.
14) On the Monday the witness had cried because she was afraid of what the applicant had done to her on the Saturday. The applicant made her feel uncomfortable through his actions.
15) The witness went for counselling in order to deal with the incident.
16) The witness indicated that she did not feel comfortable around the applicant.
4.1.8 Cross Examination
1) The witness was in grade 11 in 2013.
2) The witness did not know the applicant well and only knew him for a short period of time.
3) The witness confirmed that on the Saturday in question she attended the Math class after 11am. The applicant first taught the lesson and then gave the learners classwork and homework to do. There were about 20 learners in the class.
4) The witness indicated that she was seated at about the 4th desk from the front. The witness confirmed that she had told her brother-in-law what had transpired, but is not sure whether she had described the seating arrangement to her brother-in-law.
5) The applicant did not attend to the witness immediately when she raised her hand to get his attention.
6) The applicant came and seated himself next to the witness and said “He wanted to know the problem of this women?” referring to the witness.
7) The applicant then proceeded to use his left thumb to rub the witness’s thighs. The other learners were busy writing and did not see what the applicant was doing.
8) The witness did move away a bit when the applicant began rubbing her thigh.
9) The second time when the applicant rubbed the witness thigh was in the staffroom.
10) The applicant instructed the witness to go to the staffroom. The applicant did not say to the witness why she should go to the staffroom. The witness indicated that she obeyed the instruction because the applicant was her teacher.
11) The applicant marked the witness’s friend’s book and thereafter proceeded to mark the witness’s book and instructed them to continue with their work. At that point the applicant touched the witness on her inner thigh. The applicant asked the witness if she was scared and what it felt like. The witness indicated that she was scared.
12) The applicant touched the witness three times in the staffroom and once when they were in the classroom.
13) The witness asked the applicant for a calculator so that he could remove his hand from her thigh.
14) The witness covered her thigh with a book to try and prevent the applicant from touching her. The applicant removed the book from the witness’s lap. The applicant then proceeded to assist the witness’s friend who was present and thereafter began touching the witness again. The witness indicated that she jumped out of her chair and left the staffroom when the applicant again attempted to touch her.
15) The witness indicated that she did not tell her guardians of the incident on the day that it occurred because she was afraid.
16) On the Monday the witness was reluctant to have contact with the applicant and sent her friend to hand in her book. The witness then began recalling what had transpired on the Saturday and became emotional. The witness indicated that she was burdened by the incident over the weekend and “kept it on her” (kept it to herself)
17) The witness could not recall when she had gone to the police station.
4.1.9 Re-Examination
1) The witness indicated that when she said “I kept it on me” she meant that she could not tell her guardians about what had happened because she was afraid.
2) Teachers were like parents and when they instruct one to do something, one has to respect that, therefore she followed the applicant’s instruction to go to the staffroom.
3) The applicant’s behaviour showed the witness that some people are not what they portray to be. The applicant had a duty to protect the witness like a parent would.
4) The witness indicated that in the classroom she was seated in the 4th row and there was nobody else seated behind the witness.
4.1.10 Witness 4: Rhulani Makhuvele Testified as follows:
1) The witness was the employer representative at the disciplinary enquiry of the applicant.
2) The applicant’s disciplinary was initially scheduled for 24 & 25 April 2015. On 24 April 2013 the respondent called two witnesses (Melita Shivuri and her brother-in-law)
3) The witness made the presiding officer aware that the applicant’s representative (Mr Mashishi) at that time had resigned from the Gauteng Department of Education and that he could not represent the applicant as a fellow employee or a union representative. Mr Mashishi was allowed to continue representing the applicant.
4) On 25 April 2013 Mr Mashishi did not arrive to represent the applicant. The witness tried to assist the applicant to contact his representative, but Mr Mashishi’s phone was off. The presiding officer informed the applicant that his representative was uncontactable. A decision was taken to adjourn the matter.
5) When the matter next convened the applicant came without a representative. The applicant indicated that he was waiting for the respondent to give him a recording of the proceedings for 24 April 2013. Such request was made by the applicant on the day that the matter reconvened. The recording was not available due to the computer on which it was stored, crashing.
6)The matter was again postponed due to the applicant not having a representative.
7) Thereafter the witness went on maternity leave.
4.1.11 Cross-Examination
1) The witness was the initiator at the disciplinary enquiry.
2) The applicant had requested a copy of the recording of the proceedings of 24 April 2013.
4,1,12 Re-Examination
1) The matter had only set on 24 April where Melita Shivuri and her brother testified.
4.2 Applicant’s Evidence
4.2.1 The applicant, Nathaniel Ramps testified as follows:
1) Mr Mashishi was the union representative that had accompanied the applicant to the hearing on 24 and 25 April 2013. The applicant was only aware that Mashishi was employed at a nearby school.
2) The pre-hearing was held on 11 April 2013. No issue was raised regarding Mashishi as the applicant’s representative.
3) On 9 March 2013 the alleged incident occurred. On 13 March 2013 the applicant was arrested for alleged rape.
4) On 9 April 2013 the applicant was formally charged by the respondent.
5) The applicant was given an opportunity to respond as to why he should not be suspended. The applicant submitted his response on 10 April 2013. On 11 April 2013 a pre-hearing was held at the District office. The respondent was unable to make available witness statements. The applicant submitted his statement as contained on pages 9 to 12 of bundle C.
6) The applicant was aware that the disciplinary enquiry would convene on 24 April 2013. The respondent called two witnesses, Melita Shivuri and her brother-in-law.
7) The applicant was to testify on 25 April 2013. On the morning of 25 April 2013, Mr Mashishi contacted the initiator and informed her that he would not be present due to him having an interview to attend. The presiding officer requested that the matter be adjourned due to the applicant’s representative not being available.
8) The presiding officer requested the initiator, Makuvele, to give the applicant a copy of the transcript for the 24 April 2013 such that the applicant could make it available to his new representative. The applicant was to receive a copy of the recording for the proceedings of 24 April 2013.
9) On 26 April 2013 the applicant was suspended. The applicant did not receive the recording. The applicant queried why he was being suspended after the hearing had already commenced.
10) On 29 May 2013, Makhuvele informed the applicant that the disciplinary enquiry would continue on 04 June 2013. On 04 June 2013, Makhuvele contacted the applicant and indicated to him that the matter would convene on 05 June 2013. On 05 June 2013 the applicant indicated to the presiding officer that the respondent had failed to make available the recording of the proceedings for 24 April 2013. Makhuvele went to retrieve the recording and indicated that the recording was not available due to the computer/server crashing. Makhuvele also indicated to the presiding officer that she did not have any written notes.
11) The matter was again postponed. The next time that the applicant heard from the respondent was via email on 10 October 2013. The email was sent by Ms Jaffer. There were two attachments to the email. One was a letter indicating that the hearing would commence afresh. The second was a notice to attend the disciplinary enquiry.
12) On 12 November 2013 the disciplinary convened. The applicant was represented by Mr Netshivhangani. The applicant was under the impression that it would be a continuation of the original hearing which commenced on 24 April 2013. Ms Trent, the presiding officer, informed the applicant that the hearing would start afresh. The applicant objected to this. The hearing started afresh under protest. The respondent recalled the two witnesses to testify. The applicant testified on 13 November 2013 and the matter was concluded. The applicant received the verdict on 07 July 2014. The applicant claimed that his signature was forged on the document stating that he had received the verdict on 28 July 2014. The applicant indicated that this was not possible because he had filed an appeal to his outcome on 14 July 2014. The outcome of the appeal was the confirmation of the applicant’s dismissal.
13) The applicant joined Diepsloot Secondary in February 2012. On Saturday, 09 March 2013 the applicant held class to give additional tuition to the Grade 10’s and Grade 11’s.
14) Melita Shivuri was a learner in the applicant’s class. Learners were given tasks before they came to class. Learners were given classwork as well as homework to complete. The learners completed the first task in class. After the completion of the task, the witness sat at a desk against the wall (second desk from the door). Learners brought their books and stood in front of the applicant as he controlled their books. Melita Shivuri and her friend were seated to applicant’s left. And another learner was seated to the applicant’s right. The witness denied that the learners had signalled to him by raising their hand.
15 The applicant indicated that he noticed that Melita Shivuri and her friend had not brought their books to be controlled. Melita Shivuri and her friend indicated that they were struggling with the task and requested assistance. After all the learners had left, the applicant found Melita Shivuri, her friend and another learner waiting outside the classroom. Together the applicant and the three learners proceeded to the staffroom. Learner Lesego was there to receive her task for school based assessment. In the staffroom the applicant proceeded to his desk. The applicant described the seating arrangement in the staffroom and indicated that Melita Shivuri was seated to his left, whilst her friend was seated at a 90 degree angle on the right edge of the desk.
16) The applicant indicated that his legs were obstructed by the desk draws so he sat a bit away from the desk.
17) The applicant proceeded to give Lesego her tasks and Lesego proceeded to a classroom opposite the staffroom. The applicant then proceeded to assist Melita Shivuri and her friend.
18) The applicant indicated that he was not marking the books, he was merely controlling their books after the learners had completed their tasks.
19) The applicant denied ever touching Melita Shivuri in any manner. The other learners were present in the classroom. The applicant indicated that he was seated an arm’s length away from Melita Shivuri and her friend, in the classroom.
20) The applicant denied saying to Melita Shivuri “What is wrong with this women”. And at no point did he ever touch Melita Shivuri inappropriately.
21) The applicant indicated that he did specify where the learners should sit when they went to the staffroom.
22) The applicant denied that Melita Shivuri asked him for a calculator. The applicant denied touching Melita Shivuri when they were in the staffroom. If that was the case, Melita Shivuri’s friend would have seen the applicant touching Melita Shivuri. At no time did the applicant ask Melita Shivuri any inappropriate questions. If this was so the other learners would have heard the inappropriate remark. After controlling Melita Shivuri and her friend’s book, both learners left.
4.2.2 Cross Examination
1) The applicant agreed that it was not the respondent’s responsibility to provide representation for the applicant.
2) The applicant indicated to the presiding officer that he was comfortable with Mashishi’s representation after the initiator had pointed out that he did not have the right to represent the applicant. Mashishi was allowed to represent the applicant.
3) The applicant felt that it was unfair that he had to provide his written statement to the respondent and that the respondent did not provide the applicant with her witness statement.
4) The applicant did have the opportunity to cross examine the respondent’s witnesses.
5) The applicant felt that he was prejudiced because he did not have an opportunity to interrogate the witness statements prior to the hearing.
6) The applicant denied that Mashishi had indicated on 24 April 2013 that he would not be present on 25 April 2013.
7) The presiding officer postponed the matter on 25 April 2013 such that the applicant would not be prejudiced.
8) The presiding officer instructed Makhuvele to provide the applicant with the recording of the proceedings of 24 April 2013. The applicant was grateful to the presiding officer for making this ruling.
9) Put to the applicant that the presiding officer did not make a ruling, but made a request to the respondent to provide the applicant with the recording.
10) The applicant confirmed that on 25 April 2013 as well as the 05 June 2013 he did not have any representative present.
11) The applicant knew on 09 April 2013 that the Department wanted to place the applicant on suspension. The applicant pleaded against his suspension in writing on 10 April 2013. The applicant found that it was irregular that he was suspended after the hearing had already commenced.
12) The applicant agreed that after the first sitting of the hearing, it was not necessary to issue further notice of dates of the hearing in writing in order for the hearing to continue. Telephonic notice would have been sufficient.
13) The applicant indicated that he had objected to the hearing starting afresh.
14) The applicant denied that he had requested the hearing to start afresh. The applicant indicated that the presiding officer was not correct in her letter dated 01 October 2013 where she corresponded with the applicant indicating that the respondent would cede to the applicant’s request to start the hearing afresh.
15) The applicant indicated that there were about 30 learners present in the class on the day that the alleged incident occurred.
16) Put to the applicant that it was unusual for Melita Shivuri and her friend to wait outside the classroom, when the applicant could have assisted them inside the classroom. The applicant was unable to answer why the learners in question had waited outside, but indicated that because he was on his way home he decided to assist the leaners in the staffroom. Lesego went to another classroom to make use of the board.
17) The applicant denied that he was marking Melita Shivuri and her friend’s books in the staffroom. Put to the applicant that his versions were never put to Melita Shivuri when she testified.
18) The applicant denied that Melita Shivuri had asked him for a calculator or that Melita Shivuri had placed a scribbler/book on her lap.
19) The applicant indicated that he was explaining to the Melita Shivuri and her friend what task had to be completed in the class when they were seated in the staffroom. The learners completed the first task that was set in the staffroom and the applicant controlled the completion of the task.
20) The applicant denied that he requested Melita Shivuri and her friend to come to the staffroom because he wanted privacy. The applicant indicated that Melita Shivuri’s friend was present in the staffroom.
21) The applicant could not attest as to why Melita Shivuri would be untruthful about the incident.
22) The applicant hardly knew Melita Shivuri and did not have any altercations with her.
4.2.3 Re-Examination
1) Church groups were present and there were people cleaning the classrooms on the day in question.
2) The door was not closed while the applicant was in the staffroom with the learners.
The closing arguments of the parties were noted.
5. Analysis of evidence and argument :
1) The applicant in this matter raised both procedural and substantive challenges to his dispute, details of which is contained under clause --- of this award.
2) Before dealing with the procedural and substantive issues concerning the applicant’s dismissal, let it be noted that during the proceedings, the applicant and his representative objected to the presence of Ms Trent at the proceedings. It must be stated that the applicant is unable to dictate to the respondent whom they should present as a witness and whom they should present as their representative. Ms Trent was presented as a witness to deal with the procedural issues, given that she was the presiding officer at the applicant’s disciplinary enquiry. After the respondent had presented all its witnesses and closed its case and when the applicant began presenting his case Ms Jaffer who was the original representative of the respondent requested to be substituted by Ms Trent, due to there being a double booking of another matter where she had to serve as the Departments representative. The applicant objected to Ms Trent representing the GDE. A ruling was made that Ms Trent would be allowed to assume the position of GDE representative as her presence in no way had influenced or contaminated the respondent’s case. All that Ms Trent was now tasked with was to deal with the cross examination of the applicant’s testimony. This in no way compromised the fairness of the proceedings and the applicant’s objection was dismissed.
3) The applicant alleged that the disciplinary enquiry was conducted over an unreasonable time frame and was not finalised within 90 days. This is not in dispute. In giving consideration to the testimony that had been presented by both the applicant and the respondent’s witness, Charmaine Trent, it emerged that the reason for the delay in the proceedings was due to the matter having been postponed, due to the applicant not being sufficiently represented. If anything the decision to postpone the proceedings of the disciplinary enquiry was to afford the applicant an opportunity to obtain proper representation. This was in no way prejudicial to the applicant. Due to this, the matter had to be further delayed when the initiator for the respondent, Ms Makhuvele went on maternity leave. Thus the alleged unreasonable delay was under pinned with valid reason for the matter not being finalised within 90 days.
4) The applicant alleged that the presiding, Officer Ms Trent, was the one to advise the applicant of the second adjourned date of the disciplinary enquiry which sat on the 12th and 13th November 2013. The applicant’s allegation alluded that by doing so the presiding officer was not being impartial. The respondents witness, Ms Trent, was of the view that it was not unprocdural for the presiding officer to inform parties of further dates for the enquiry after it had commenced.in the instance I can find no evidence to suggest that the afore mentioned in any way compromised the impartiality of the presiding officer. The presiding officer was not the one who initiated or drafted the charges against the applicant, neither was it the presiding officer who informed the applicant of the initial sitting of the disciplinary enquiry. There is nothing untoward in terms of the presiding officer informing parties of the date of the continuation of proceedings. The applicant’s assumption of a procedural defect in this regard must therefore fail.
5) It is common course that the initial sitting of the applicant’s disciplinary enquiry convened on the 24th April 2013. It is common course that the respondent had presented the testimony of the two key witnesses (Melita Shivuri and her brother-in-law). It is common course that when the matter re convened on the 12th and 13th November 2013, that the evidence was heard afresh. The applicant was of the view that this was irregular and amounted to a procedural defect. Before one can assume that such is a procedural defect, consideration needs to be given to the reasons/events that gave rise to this course of action. It emerged as common course that the applicant’s representative, who was part of the proceedings when it convened on the 24th April 2013 had abandoned his capacity as representative and the applicant was left unrepresented. It was due to the absence of representation for the applicant that the matter had to be postponed on several occasions. When the applicant did manage to obtain new representation, such representative was not privy to the evidence which had initially been led by the respondent on the 24th April 2013. Whilst the presiding officer had requested that a copy of the recording for the proceedings on the 24th April 2013 be made available to the applicant, it is common course that such was not made available to the applicant. The reason advanced by the respondent in this regard was that the computer on which such recording was stored had malfunctioned and as a result the recording was lost. Whilst the applicant had advanced the view that the respondent had denied him access to the recording or did not make available same to him, there is no evidence to suggest that there was any mal-intent or deliberate action on the part of the respondent to deny the applicant access to the recording. There is no contrary evidence presented in any way to suggest that the respondent was still in possession of the recording and that such was deliberately withheld from the applicant. In the instance the respondent had provided a reasonable explanation as to why the recording could not be made available to the applicant.
6) Given the aforementioned, when the decision was taken to commence to the applicants disciplinary enquiry afresh on the 12th November 2013, such action served to advantage the applicant due to applicant having a new representative who was not privy to the evidence that was presented on the 24th April 2013.This allowed the applicants representative an opportunity to become totally aufait with the evidence that the respondent was presenting and allowed the applicant and his representative to deal with the cross examination from an informed point of view. In this regard I cannot find any prejudice that the applicant had suffered as a result of the proceedings staring afresh If anything it convenience the applicant due to him having to make use of the services of a new representative.
7) This is not to say that the respondent did not benefit from the proceeding starting afresh. Due to the respondents original initiator going on maternity leave. The respondent was forced to substitute the proceedings with a new initiator who was also not privy to the proceedings which had taken place on the 24th April 2013. The decision of the presiding officer to start the proceedings afresh served to benefit both the respondent and the applicant party in equal measure, given that both the representatives of the respondent and the applicant were not privy to the proceedings which initially sat on the 24th April 2013 and would have therefore had difficulty in presenting their cases. The decision of the presiding officer to start the proceedings afresh served to mitigate any prejudice that both the respondent and the applicant parties would have suffered due to their change in representation, given that the recording of the proceedings was not available.
8) In terms of the substance, the applicant denied the charges in its entirety. Essentially in this arbitration, there were only two witnesses who attested to what the purported behaviour was or how the events unfolded in the classroom and the staffroom. We are exposed in this respect to the version of the applicant and that of Melita Shivuri. Melita Shivuri gave a detailed account of the manner in which the applicant allegedly touched/rubbed her thighs, both in the classroom and when they had convened in the staffroom. It was the applicant’s submission that Melita Shivuri was being untruthful and that at no time did he rub Melita Shivuri’s thighs. What is common cause though is that Melita Shivuri and her friend were in the applicant’s math class on the morning in question and that Melita Shivuri, her friend and the applicant later proceeded to the staffroom.
9) It must be noted that Melita Shivuri was consistent in her testimony, even in the face of cross examination where there was repetition of the questions being asked. At no time does Melita Shivuri’s testimony come across as rehearsed in any way. If one were to discount the testimony of Shivuri as not being the truth, one would have to question several issues. What would be the reason that Melita Shivuri would have chosen the applicant as the alleged target of her serious allegations? Melita Shivuri recognised the applicant as a good teacher and there is no evidence to suggest that Melita Shivuri would have any vindictiveness towards the applicant. Not even the applicant in his testimony is able to allude to any reason as to why Shivuri would concoct such a serious story with such detail. Melita Shivuri was able to describe where they were seated as well as the manner in which she tried to prevent the applicant from inappropriately touching her in the staffroom. Melita Shivuri indicated that at a point when they were seated in the staff room and the applicant began touching her thighs, she tried to distract him by initially asking for a calculator and later placing a book on her lap. At no time does the applicant challenge this version in cross examination, but conveniently disputes same in his evidence in chief. The applicant also failed to challenge in cross examination as to how they were seated as per the Melita Shivuri’s evidence in chief. Instead only when the matter reconvened on another day and when the applicant was providing his evidence in chief does he make reference to him being seated a distance away from Melita Shivuri in the classroom and that he was also seated away from the desk in the staffroom. Such versions were never put to Melita Shivuri to respond to, instead the applicant conveniently presented same as part of his evidence in chief, after he had an opportunity to think about an alternative version. One therefore has to question why the applicant failed to put these alternative versions to Shivuri in order to test its veracity.
10) It was Shivuri’s version that the applicant had requested that they proceed to the staff room. The applicant never challenged this version in cross examination of Shivuri. However, in his evidence in chief the applicant portrayed the view that he found Shivuri, her friend and another learner waiting outside the classroom and because he was on his way home he requested that they proceed to the staff room because it was on his way out. The applicant further went on to say that there were church groups present at the school as well as cleaning staff thus trying to create the impression that because so many people were around, the acts described by Shivuri could not have taken place. Again such scenarios were never put to Shivuri in cross examination in order for her to respond. One has to therefore question why the applicant reverted to versions of convenience in order to attempt to provide a justifiable defence.
11) Shivuri’s brother-in-law testified that on the Monday when she returned from school, Shivuri was visibly upset and began to cry. It was at this point, when asked by her brother-in-law, that Shivuri had related what had transpired on the Saturday. On becoming aware of the alleged incident they immediately proceeded to report same to the Principal. If Shivuri was not being truthful, then one would have to give Shivuri great credit for her acting skills as she was able to mislead her family into believing that she had been harassed by the applicant. She would have also had to put on a performance at school on the Monday in order for her to be granted permission to leave early.
12) Given the aforementioned, I do not find it probable that Shivuri could have been such a good actor to consistently maintain the distress associated with the incident in question. Furthermore the fact that the applicant had failed to put critical key versions in cross examination to Shivuri which would have disputed Shivuri’s version of events, but rather only deals with an alternative version in his evidence in chief, many days after he had heard Shivuri’s testimony, leads one to conclude that the applicant presented a version of convenience after having had time to review the testimony of Shivuri. Considering that disputing Shivuri’s versions were critical to his case, the applicant should have then put such versions to Shivuri’s to test its veracity. The applicant failed to do so. One can only draw the conclusion that the applicant did not do so, because it possibly would have exposed the consistency of Shivuri’s version or that possibly at the moment of cross examination of Shivuri, the applicant did not have the time to concoct his alternative version and therefore only dealt with his alternative version in his evidence in chief. In the instance Shivuri’s version of events emerges as more probable.
13) The misconduct in the instance is one of a serious nature. Parents send their children into a schooling environment with the understanding that they would be safe and that furthermore the educators assume the role of guardians when the learners are in their care. Educators are meant to protect the learners from harm and to perform their duties with the highest of ethical standards. In the instance the applicant’s behaviour transgressed all ethical standards expected of an educator. The applicant is placed in a position of authority over the learners in his role as educator. Learners look up to educators to be examples of good conduct. The applicant’s behaviour with regard to Shivuri, is not merely isolated to Shivuri, but goes to the possible habitual intent of the applicant. If the applicant could behave in this manner towards Shivuri, nothing prevented him from behaving in the same way towards any other learner in his care. The applicant through his behaviour therefore posed a risk to the safety and wellbeing of learners in his care. It would therefore be in the “paramount interest of the child” that the applicant be removed from an environment where he no longer can be trusted and where his presence places learners wellbeing at risk. In the instance the applicant’s actions has eroded the trust relationship and the applicant can no longer be trusted to be the guardian of learners in his care or that he would conduct himself with the highest of ethical standards. Dismissal is therefore appropriate in the instance.
6. Award
1) The dismissal of the applicant, N Ramps, is both procedurally and substantively fair.
Signed and dated on this the 30 day of July 2015
Ravi Naidoo
ELRC Commissioner
Province: Gauteng
Applicant: SADTU obo N Ramps
Respondent: Department of Education Gauteng
Issue: Unfair Labour Practice - Refusal to Re-instate i.t.o an agreement
Venue: Teddy Bear Clinic in Parktown
Award Date: 30 July 2015
Arbitrator: Ravi Naidoo
IN THE MATTER BETWEEN:
SADTU obo N Ramps Union / Applicant / Employee party
And
Gauteng Department of Education 1st Respondent / Employer party
Union/Employee’s representative: Tiyani Chauke
Union/Employee’s address:
Telephone:
011 331 1444
Fax:
011 331 1445
Employer’s representative:
M Jaffer
Employer’s Address:
Telephone:
Fax:
1.Details of hearing and representation:
The arbitration hearing commenced on the 29 April 2015 at the Teddy Bear Clinic in Parktown, Johannesburg and remained part heard. Parties agreed to reconvene on 11 June 2015. The matter was finalised on 11 June 2015 at the offices of the Gauteng Department of Education at 111 Commissioner Street. The applicant was represented by Tiyani Chauke from SADTU. The respondent, GDE, was represented by Moffidah Jaffer from the respondent’s Labour Relations Department. The parties filed closing arguments which was noted.
2.Issue to be decided:
1) Whether the dismissal of the applicant was procedurally and substantively fair.
2) The applicant was charged with alleged misconduct relating to alleged sexual harassment of a learner.
3) The applicant brought the following procedural challenges:
The duration of the disciplinary enquiry was conducted over an unreasonable timeframe. The matter was not finalised within 90 days.
Alleged bias of the presiding officer, due to the presiding officer advising the applicant of the second adjourned date of the disciplinary enquiry.
The disciplinary enquiry was started afresh on 12 November 2013 despite the matter originally commencing on 24 April 2013.
The respondent allegedly denied the applicant access to the audio recordings of the hearing which commenced on 24 April 2013
4) In terms of substance, the applicant denied the charges in its entirety.
3.Background to the issues:
1) The applicant commenced employment with the respondent on 20 February 2012 as a PL1 educator. The applicant was dismissed on 06 August 2014. The applicant earned R18675-00 per month. The applicant sought retrospective reinstatement.
4. Survey of the evidence and argument:
4.1 Respondent’s Evidence
4.1.1 Witness 1: Charmaine Trent testified as follows:
1) The witness is a Labour Relations officer serving the Gauteng Department of Education. The witness has served in this position for nine years.
2) The witness was the presiding officer at the applicant’s disciplinary inquiry.
3) The witness confirmed that she did send correspondence to the applicant relating to starting the disciplinary enquiry afresh. At the initial sitting of the disciplinary enquiry, the applicant did not have a representative present. The witness postponed the hearing in order to afford the applicant an opportunity to seek representation.
4) The applicant proceeded to seek representation from his union. The applicant’s union representative came from another province. The matter was scheduled for two days. On the second day of the inquiry the applicant’s representative failed to arrive. The witness again proceeded to postpone the matter.
5) When the matter convened again there was an issue with the applicant’s representative. The applicant had a new representative. The representative in question was not present when the respondent’s witnesses had testified. The witness then tried to facilitate that the respondent try and make available the audio recording of the previous sitting such that the applicant’s representative could familiarize himself with same.
6) The witness postponed the hearing in order to allow the applicant and his representative to obtain the audio recording from the respondent. In the interim the initiator for the respondent went on maternity leave.
7) The applicant then contacted the witness regarding the audio recording. The recordings could not be obtained. For the benefit of the applicant the witness suggested that the hearing commence afresh.
8) A new initiator by the name of Valerie was appointed to represent the respondent. The initiator advised the witness that they were unable to make contact with the applicant and that they had served the notification on the applicant’s land lady. On 1 October 2013, the witness took it upon herself to engage the applicant to set the matter down for 8 and 9 October 2013. The same correspondence that was sent to the applicant was served on the department.
9) The witness indicated that as presiding officer she was merely advising parties of the further dates when the disciplinary inquiry would convene.
10) The alleged unreasonable delay was for the applicants benefit in order to allow him to secure proper representation. The delay was not that of the respondent. It was due to the applicant’s lack of representation and the inconsistency of the applicant’s representation that the matter was delayed.
11) The applicant agreed to the matter convening afresh. The applicant was in agreement because he had a new representative who was not privy to the initial testimony of the respondent’s witnesses. On this basis the decision to hear the matter afresh was purely to assist the applicant such that he would not be disadvantaged in any way.
12) If the inquiry did not start afresh, the applicant’s representative would have been at a disadvantage because the respondent had already presented its case.
13) The audio recording was only requested in order to try and bring the applicant’s new representative up to speed with the enquiry. When the disciplinary enquiry started afresh, there was no need for the initial recording.
14) The disciplinary inquiry convened afresh on the 12th and 13th November 2013. The witness had a problem with the recording device and requested that the district office provide her with same. Due it not being the witness’s recorder she requested a CD to be cut of the recording, which was facilitated by the IT department. A CD was handed to the witness which she labelled and submitted for the record. The witness indicated that she did not have any need to listen to the recording because there were only three witnesses presented in total and she had taken detailed notes. No transcripts were made of the recording.
15) The witness indicated that the respondent has a zero tolerance policy in terms of sexual harassment. Parents placed their trust in the respondent to keep their children safe and such transgression would be considered to be a serious breach of trust.
4.1.2 Cross Examination
1) The witness indicated that there were previous occasions where the presiding officer would inform parties of further dates of the disciplinary enquiry if the matter was adjourned. The initial notice, however, is the responsibility of the respondent. As the presiding officer the witness had to ensure that the hearing was finalized in the quickest possible time.
2) It was the applicant who initially made the request for the hearing to commence afresh. At first the witness had refused this request. However, when the initiator who was representing the respondent went on maternity leave, the witness ceded to the request of the applicant to start the hearing afresh.
3) According to the applicant he indicated to the witness that is union was refusing to represent him.
4) The applicant had made contact with the witness on two occasions regarding his difficulty in obtaining the audio recording of the inquiry which sat on 24 April 2013.
5) In June when the matter convened again, the applicant came with a new representative. By this time the employer had already concluded its case.
6) The witness denied that she made a ruling that the applicant should be furnished with the audio recording for 24 April 2013. The witness indicated that she merely facilitated to assist the applicant and requested the department to provide the recording to the applicant.
7) On 5 June 2013 the hearing did not proceed because the applicant was not prepared due to him having a new representative.
8) There was only a single hearing. The witness denied that the applicant had three separate hearings.
4.1.3 Re-Examination
1) It is common for the presiding officer to communicate with parties to inform them of further dates when the hearing would convene. This does not mean that the presiding officer has developed an interest in the case.
4.1.4 Witness 2: Sello Peter Molusi testified as follows
1) The witness is familiar with the applicant. The applicant was the witness’s sister in-law’s teacher.
2) Shivuri Melita is the witness’s sister-in-law. She shared the shack in which the witness lived with his wife and two children. The witness and his wife have a separate room.
3) On Monday 11 March 2013, the witness was on leave. The witness was surprised that Melita Shivuri and a friend came home early. Both Melita Shivuri and her friend were silent. The witness asked what was wrong and Melita Shivuri indicated that she had something to tell them. Melita Shivuri became emotional and explained that she had cried in the classroom. She indicated that she was harassed at school on the Saturday by the applicant. Melita Shivuri indicated that they had maths class from 11 AM to 2 PM. She was seated in the back of the classroom on the extreme right of the class. Her friend was seated in front of her. The applicant approached and sat next to her and allegedly asked “what this woman’s problem was?”. The applicant then proceeded to place his hands on the learner’s thigh and began rubbing it.
4) The witness proceeded to give hearsay testimony of what had allegedly transpired and as it was told to him by Melita Shivuri on the day in question.
5) The witness asked Melita Shivuri why she had not told them about the incident on the Saturday when it occurred. Melita Shivuri indicated to the witness that she would not be believed and she thought she was strong enough to deal with the issue. The witness indicated that Melita Shivuri indicated to him that on the Monday she had become emotional when she recalled what had happened and began crying. The head of the Student’s Representative Council noticed Melita Shivuri’s distress and arranged for early release from school
6) The witness indicated that as soon as he became aware of the incident, the witness together with his wife, Melita Shivuri and her friend proceeded to the school. The incident in question was related to the principal who indicated that he would take up the issue with the Department of Education.
7) The principal advised the witness to take Melita Shivuri to the social worker. Melita Shivuri met with the social worker on the Wednesday.
8) A criminal case was also opened. The weeks after the case was filed, the investigating officer indicated to the witness that the case could not proceed and was thrown out of court.
9) Melita Shivuri was provided with counselling to deal with the incident because she had become emotional.
4.1.5 Cross Examination
1) It was common cause that the witness was relating the story as it was told to him by Melita Shivuri and that he did not himself witness the incident in question.
2) The witness confirmed that Melita Shivuri was emotional when she returned from school early on a Monday.
3) Melita Shivuri had indicated to the witness that she was surprised and startled at the applicant’s behaviour because she did not expect a teacher to behave in this manner.
4) The witness denied that he had filed a criminal charge relating to alleged rape.
5) Melita Shivuri’s friend had accompanied her home on the Monday because Melita Shivuri had become emotional at school.
4.1.6 Re-Examination
1) No questions were asked in re-examination
4.1.7 Witness 3: Melita Shivuri Testified as follows:
1) The witness indicated that she was currently 19 years old. The witness would turn 19 in July 2015.
2) The witness indicated that she was in grade 12 in 2014. The witness was currently awaiting results of her supplementary exams.
3) The applicant was the witness’s math teacher in 2013 when the witness was in grade 11.
4) On Saturday, 9 March, the witness attended Maths and Physical Science classes at school.
5) At around 11:30 AM they attended maths class. The applicant was the maths teacher.
6) They were given classwork as well as homework to complete. The classwork had to be completed in class. The applicant walked around the class to check what the Learners were doing.
7) The witness and her friend indicated to the applicant that they had completed their work. The applicant proceeded to the witness’s desk and said “what was the problem of this woman”. The applicant proceeded to sit on the right-hand side of the witness and took the book to mark the work. Whilst seated next to the witness, the applicant proceeded to rub his thumb on the witness’s thigh. The witness moved away, but the applicant continued to rub his thumb on the witness’s thigh.
8) The applicant then instructed the witness and her friend to proceed to the staff room. When the applicant arrived at the staff room, he instructed where the witness and her friend should be seated. The witness then proceeded to mark the witness’s friend’s book. At that point a learner by name of Lesego approached the applicant to ask him some questions concerning equations. The witness continued doing her work.
9) The applicant then proceeded to brush the witness’s thighs with his hand. The witness tried to distract the applicant by asking for a calculator, however the applicant continued to rub the witness’s thighs. The witness then took her scribbler (book) and placed it on her lap in the hope that this would make the applicant stop. The applicant proceeded to remove the book from the witness’s lap and indicated to her that the book would disturb him as he continued to rub her thigh. The applicant then asked the witness “How does it feel?”. The witness indicated to the applicant that she was scared and the applicant proceeded to laugh at her and continued rubbing her thigh.
10) The witness then proceeded to jump up and indicated to the applicant that she would complete her work at home.
11) When the witness left, her friend followed. The witness asked her friend if she had seen what had occurred with the applicant. Her friend indicated that she did not. She only heard the comments that were being made, but did not know what they were talking about.
12) On the way home the witness told her friend what the applicant had done. Her friend told her that she should report the incident.
13) On her arrival at home the witness kept the incident to herself. On the Monday the applicant sent a learner to tell the witness’s class to submit their workbooks. The witness proceeded to the staffroom, however, when she saw the applicant, she asked her friend Moira to hand in the book for her. The witness then began thinking about what had transpired on the Saturday and began crying. The witness then got permission to leave school early. The witness went home and was accompanied by her friend Karabo. On arrival at home the witness told her sister and brother-in-law what had happened on the Saturday, with the applicant. The witness together with her sister and brother-in-law proceeded back to school to report the incident to the principal.
14) On the Monday the witness had cried because she was afraid of what the applicant had done to her on the Saturday. The applicant made her feel uncomfortable through his actions.
15) The witness went for counselling in order to deal with the incident.
16) The witness indicated that she did not feel comfortable around the applicant.
4.1.8 Cross Examination
1) The witness was in grade 11 in 2013.
2) The witness did not know the applicant well and only knew him for a short period of time.
3) The witness confirmed that on the Saturday in question she attended the Math class after 11am. The applicant first taught the lesson and then gave the learners classwork and homework to do. There were about 20 learners in the class.
4) The witness indicated that she was seated at about the 4th desk from the front. The witness confirmed that she had told her brother-in-law what had transpired, but is not sure whether she had described the seating arrangement to her brother-in-law.
5) The applicant did not attend to the witness immediately when she raised her hand to get his attention.
6) The applicant came and seated himself next to the witness and said “He wanted to know the problem of this women?” referring to the witness.
7) The applicant then proceeded to use his left thumb to rub the witness’s thighs. The other learners were busy writing and did not see what the applicant was doing.
8) The witness did move away a bit when the applicant began rubbing her thigh.
9) The second time when the applicant rubbed the witness thigh was in the staffroom.
10) The applicant instructed the witness to go to the staffroom. The applicant did not say to the witness why she should go to the staffroom. The witness indicated that she obeyed the instruction because the applicant was her teacher.
11) The applicant marked the witness’s friend’s book and thereafter proceeded to mark the witness’s book and instructed them to continue with their work. At that point the applicant touched the witness on her inner thigh. The applicant asked the witness if she was scared and what it felt like. The witness indicated that she was scared.
12) The applicant touched the witness three times in the staffroom and once when they were in the classroom.
13) The witness asked the applicant for a calculator so that he could remove his hand from her thigh.
14) The witness covered her thigh with a book to try and prevent the applicant from touching her. The applicant removed the book from the witness’s lap. The applicant then proceeded to assist the witness’s friend who was present and thereafter began touching the witness again. The witness indicated that she jumped out of her chair and left the staffroom when the applicant again attempted to touch her.
15) The witness indicated that she did not tell her guardians of the incident on the day that it occurred because she was afraid.
16) On the Monday the witness was reluctant to have contact with the applicant and sent her friend to hand in her book. The witness then began recalling what had transpired on the Saturday and became emotional. The witness indicated that she was burdened by the incident over the weekend and “kept it on her” (kept it to herself)
17) The witness could not recall when she had gone to the police station.
4.1.9 Re-Examination
1) The witness indicated that when she said “I kept it on me” she meant that she could not tell her guardians about what had happened because she was afraid.
2) Teachers were like parents and when they instruct one to do something, one has to respect that, therefore she followed the applicant’s instruction to go to the staffroom.
3) The applicant’s behaviour showed the witness that some people are not what they portray to be. The applicant had a duty to protect the witness like a parent would.
4) The witness indicated that in the classroom she was seated in the 4th row and there was nobody else seated behind the witness.
4.1.10 Witness 4: Rhulani Makhuvele Testified as follows:
1) The witness was the employer representative at the disciplinary enquiry of the applicant.
2) The applicant’s disciplinary was initially scheduled for 24 & 25 April 2015. On 24 April 2013 the respondent called two witnesses (Melita Shivuri and her brother-in-law)
3) The witness made the presiding officer aware that the applicant’s representative (Mr Mashishi) at that time had resigned from the Gauteng Department of Education and that he could not represent the applicant as a fellow employee or a union representative. Mr Mashishi was allowed to continue representing the applicant.
4) On 25 April 2013 Mr Mashishi did not arrive to represent the applicant. The witness tried to assist the applicant to contact his representative, but Mr Mashishi’s phone was off. The presiding officer informed the applicant that his representative was uncontactable. A decision was taken to adjourn the matter.
5) When the matter next convened the applicant came without a representative. The applicant indicated that he was waiting for the respondent to give him a recording of the proceedings for 24 April 2013. Such request was made by the applicant on the day that the matter reconvened. The recording was not available due to the computer on which it was stored, crashing.
6)The matter was again postponed due to the applicant not having a representative.
7) Thereafter the witness went on maternity leave.
4.1.11 Cross-Examination
1) The witness was the initiator at the disciplinary enquiry.
2) The applicant had requested a copy of the recording of the proceedings of 24 April 2013.
4,1,12 Re-Examination
1) The matter had only set on 24 April where Melita Shivuri and her brother testified.
4.2 Applicant’s Evidence
4.2.1 The applicant, Nathaniel Ramps testified as follows:
1) Mr Mashishi was the union representative that had accompanied the applicant to the hearing on 24 and 25 April 2013. The applicant was only aware that Mashishi was employed at a nearby school.
2) The pre-hearing was held on 11 April 2013. No issue was raised regarding Mashishi as the applicant’s representative.
3) On 9 March 2013 the alleged incident occurred. On 13 March 2013 the applicant was arrested for alleged rape.
4) On 9 April 2013 the applicant was formally charged by the respondent.
5) The applicant was given an opportunity to respond as to why he should not be suspended. The applicant submitted his response on 10 April 2013. On 11 April 2013 a pre-hearing was held at the District office. The respondent was unable to make available witness statements. The applicant submitted his statement as contained on pages 9 to 12 of bundle C.
6) The applicant was aware that the disciplinary enquiry would convene on 24 April 2013. The respondent called two witnesses, Melita Shivuri and her brother-in-law.
7) The applicant was to testify on 25 April 2013. On the morning of 25 April 2013, Mr Mashishi contacted the initiator and informed her that he would not be present due to him having an interview to attend. The presiding officer requested that the matter be adjourned due to the applicant’s representative not being available.
8) The presiding officer requested the initiator, Makuvele, to give the applicant a copy of the transcript for the 24 April 2013 such that the applicant could make it available to his new representative. The applicant was to receive a copy of the recording for the proceedings of 24 April 2013.
9) On 26 April 2013 the applicant was suspended. The applicant did not receive the recording. The applicant queried why he was being suspended after the hearing had already commenced.
10) On 29 May 2013, Makhuvele informed the applicant that the disciplinary enquiry would continue on 04 June 2013. On 04 June 2013, Makhuvele contacted the applicant and indicated to him that the matter would convene on 05 June 2013. On 05 June 2013 the applicant indicated to the presiding officer that the respondent had failed to make available the recording of the proceedings for 24 April 2013. Makhuvele went to retrieve the recording and indicated that the recording was not available due to the computer/server crashing. Makhuvele also indicated to the presiding officer that she did not have any written notes.
11) The matter was again postponed. The next time that the applicant heard from the respondent was via email on 10 October 2013. The email was sent by Ms Jaffer. There were two attachments to the email. One was a letter indicating that the hearing would commence afresh. The second was a notice to attend the disciplinary enquiry.
12) On 12 November 2013 the disciplinary convened. The applicant was represented by Mr Netshivhangani. The applicant was under the impression that it would be a continuation of the original hearing which commenced on 24 April 2013. Ms Trent, the presiding officer, informed the applicant that the hearing would start afresh. The applicant objected to this. The hearing started afresh under protest. The respondent recalled the two witnesses to testify. The applicant testified on 13 November 2013 and the matter was concluded. The applicant received the verdict on 07 July 2014. The applicant claimed that his signature was forged on the document stating that he had received the verdict on 28 July 2014. The applicant indicated that this was not possible because he had filed an appeal to his outcome on 14 July 2014. The outcome of the appeal was the confirmation of the applicant’s dismissal.
13) The applicant joined Diepsloot Secondary in February 2012. On Saturday, 09 March 2013 the applicant held class to give additional tuition to the Grade 10’s and Grade 11’s.
14) Melita Shivuri was a learner in the applicant’s class. Learners were given tasks before they came to class. Learners were given classwork as well as homework to complete. The learners completed the first task in class. After the completion of the task, the witness sat at a desk against the wall (second desk from the door). Learners brought their books and stood in front of the applicant as he controlled their books. Melita Shivuri and her friend were seated to applicant’s left. And another learner was seated to the applicant’s right. The witness denied that the learners had signalled to him by raising their hand.
15 The applicant indicated that he noticed that Melita Shivuri and her friend had not brought their books to be controlled. Melita Shivuri and her friend indicated that they were struggling with the task and requested assistance. After all the learners had left, the applicant found Melita Shivuri, her friend and another learner waiting outside the classroom. Together the applicant and the three learners proceeded to the staffroom. Learner Lesego was there to receive her task for school based assessment. In the staffroom the applicant proceeded to his desk. The applicant described the seating arrangement in the staffroom and indicated that Melita Shivuri was seated to his left, whilst her friend was seated at a 90 degree angle on the right edge of the desk.
16) The applicant indicated that his legs were obstructed by the desk draws so he sat a bit away from the desk.
17) The applicant proceeded to give Lesego her tasks and Lesego proceeded to a classroom opposite the staffroom. The applicant then proceeded to assist Melita Shivuri and her friend.
18) The applicant indicated that he was not marking the books, he was merely controlling their books after the learners had completed their tasks.
19) The applicant denied ever touching Melita Shivuri in any manner. The other learners were present in the classroom. The applicant indicated that he was seated an arm’s length away from Melita Shivuri and her friend, in the classroom.
20) The applicant denied saying to Melita Shivuri “What is wrong with this women”. And at no point did he ever touch Melita Shivuri inappropriately.
21) The applicant indicated that he did specify where the learners should sit when they went to the staffroom.
22) The applicant denied that Melita Shivuri asked him for a calculator. The applicant denied touching Melita Shivuri when they were in the staffroom. If that was the case, Melita Shivuri’s friend would have seen the applicant touching Melita Shivuri. At no time did the applicant ask Melita Shivuri any inappropriate questions. If this was so the other learners would have heard the inappropriate remark. After controlling Melita Shivuri and her friend’s book, both learners left.
4.2.2 Cross Examination
1) The applicant agreed that it was not the respondent’s responsibility to provide representation for the applicant.
2) The applicant indicated to the presiding officer that he was comfortable with Mashishi’s representation after the initiator had pointed out that he did not have the right to represent the applicant. Mashishi was allowed to represent the applicant.
3) The applicant felt that it was unfair that he had to provide his written statement to the respondent and that the respondent did not provide the applicant with her witness statement.
4) The applicant did have the opportunity to cross examine the respondent’s witnesses.
5) The applicant felt that he was prejudiced because he did not have an opportunity to interrogate the witness statements prior to the hearing.
6) The applicant denied that Mashishi had indicated on 24 April 2013 that he would not be present on 25 April 2013.
7) The presiding officer postponed the matter on 25 April 2013 such that the applicant would not be prejudiced.
8) The presiding officer instructed Makhuvele to provide the applicant with the recording of the proceedings of 24 April 2013. The applicant was grateful to the presiding officer for making this ruling.
9) Put to the applicant that the presiding officer did not make a ruling, but made a request to the respondent to provide the applicant with the recording.
10) The applicant confirmed that on 25 April 2013 as well as the 05 June 2013 he did not have any representative present.
11) The applicant knew on 09 April 2013 that the Department wanted to place the applicant on suspension. The applicant pleaded against his suspension in writing on 10 April 2013. The applicant found that it was irregular that he was suspended after the hearing had already commenced.
12) The applicant agreed that after the first sitting of the hearing, it was not necessary to issue further notice of dates of the hearing in writing in order for the hearing to continue. Telephonic notice would have been sufficient.
13) The applicant indicated that he had objected to the hearing starting afresh.
14) The applicant denied that he had requested the hearing to start afresh. The applicant indicated that the presiding officer was not correct in her letter dated 01 October 2013 where she corresponded with the applicant indicating that the respondent would cede to the applicant’s request to start the hearing afresh.
15) The applicant indicated that there were about 30 learners present in the class on the day that the alleged incident occurred.
16) Put to the applicant that it was unusual for Melita Shivuri and her friend to wait outside the classroom, when the applicant could have assisted them inside the classroom. The applicant was unable to answer why the learners in question had waited outside, but indicated that because he was on his way home he decided to assist the leaners in the staffroom. Lesego went to another classroom to make use of the board.
17) The applicant denied that he was marking Melita Shivuri and her friend’s books in the staffroom. Put to the applicant that his versions were never put to Melita Shivuri when she testified.
18) The applicant denied that Melita Shivuri had asked him for a calculator or that Melita Shivuri had placed a scribbler/book on her lap.
19) The applicant indicated that he was explaining to the Melita Shivuri and her friend what task had to be completed in the class when they were seated in the staffroom. The learners completed the first task that was set in the staffroom and the applicant controlled the completion of the task.
20) The applicant denied that he requested Melita Shivuri and her friend to come to the staffroom because he wanted privacy. The applicant indicated that Melita Shivuri’s friend was present in the staffroom.
21) The applicant could not attest as to why Melita Shivuri would be untruthful about the incident.
22) The applicant hardly knew Melita Shivuri and did not have any altercations with her.
4.2.3 Re-Examination
1) Church groups were present and there were people cleaning the classrooms on the day in question.
2) The door was not closed while the applicant was in the staffroom with the learners.
The closing arguments of the parties were noted.
5. Analysis of evidence and argument :
1) The applicant in this matter raised both procedural and substantive challenges to his dispute, details of which is contained under clause --- of this award.
2) Before dealing with the procedural and substantive issues concerning the applicant’s dismissal, let it be noted that during the proceedings, the applicant and his representative objected to the presence of Ms Trent at the proceedings. It must be stated that the applicant is unable to dictate to the respondent whom they should present as a witness and whom they should present as their representative. Ms Trent was presented as a witness to deal with the procedural issues, given that she was the presiding officer at the applicant’s disciplinary enquiry. After the respondent had presented all its witnesses and closed its case and when the applicant began presenting his case Ms Jaffer who was the original representative of the respondent requested to be substituted by Ms Trent, due to there being a double booking of another matter where she had to serve as the Departments representative. The applicant objected to Ms Trent representing the GDE. A ruling was made that Ms Trent would be allowed to assume the position of GDE representative as her presence in no way had influenced or contaminated the respondent’s case. All that Ms Trent was now tasked with was to deal with the cross examination of the applicant’s testimony. This in no way compromised the fairness of the proceedings and the applicant’s objection was dismissed.
3) The applicant alleged that the disciplinary enquiry was conducted over an unreasonable time frame and was not finalised within 90 days. This is not in dispute. In giving consideration to the testimony that had been presented by both the applicant and the respondent’s witness, Charmaine Trent, it emerged that the reason for the delay in the proceedings was due to the matter having been postponed, due to the applicant not being sufficiently represented. If anything the decision to postpone the proceedings of the disciplinary enquiry was to afford the applicant an opportunity to obtain proper representation. This was in no way prejudicial to the applicant. Due to this, the matter had to be further delayed when the initiator for the respondent, Ms Makhuvele went on maternity leave. Thus the alleged unreasonable delay was under pinned with valid reason for the matter not being finalised within 90 days.
4) The applicant alleged that the presiding, Officer Ms Trent, was the one to advise the applicant of the second adjourned date of the disciplinary enquiry which sat on the 12th and 13th November 2013. The applicant’s allegation alluded that by doing so the presiding officer was not being impartial. The respondents witness, Ms Trent, was of the view that it was not unprocdural for the presiding officer to inform parties of further dates for the enquiry after it had commenced.in the instance I can find no evidence to suggest that the afore mentioned in any way compromised the impartiality of the presiding officer. The presiding officer was not the one who initiated or drafted the charges against the applicant, neither was it the presiding officer who informed the applicant of the initial sitting of the disciplinary enquiry. There is nothing untoward in terms of the presiding officer informing parties of the date of the continuation of proceedings. The applicant’s assumption of a procedural defect in this regard must therefore fail.
5) It is common course that the initial sitting of the applicant’s disciplinary enquiry convened on the 24th April 2013. It is common course that the respondent had presented the testimony of the two key witnesses (Melita Shivuri and her brother-in-law). It is common course that when the matter re convened on the 12th and 13th November 2013, that the evidence was heard afresh. The applicant was of the view that this was irregular and amounted to a procedural defect. Before one can assume that such is a procedural defect, consideration needs to be given to the reasons/events that gave rise to this course of action. It emerged as common course that the applicant’s representative, who was part of the proceedings when it convened on the 24th April 2013 had abandoned his capacity as representative and the applicant was left unrepresented. It was due to the absence of representation for the applicant that the matter had to be postponed on several occasions. When the applicant did manage to obtain new representation, such representative was not privy to the evidence which had initially been led by the respondent on the 24th April 2013. Whilst the presiding officer had requested that a copy of the recording for the proceedings on the 24th April 2013 be made available to the applicant, it is common course that such was not made available to the applicant. The reason advanced by the respondent in this regard was that the computer on which such recording was stored had malfunctioned and as a result the recording was lost. Whilst the applicant had advanced the view that the respondent had denied him access to the recording or did not make available same to him, there is no evidence to suggest that there was any mal-intent or deliberate action on the part of the respondent to deny the applicant access to the recording. There is no contrary evidence presented in any way to suggest that the respondent was still in possession of the recording and that such was deliberately withheld from the applicant. In the instance the respondent had provided a reasonable explanation as to why the recording could not be made available to the applicant.
6) Given the aforementioned, when the decision was taken to commence to the applicants disciplinary enquiry afresh on the 12th November 2013, such action served to advantage the applicant due to applicant having a new representative who was not privy to the evidence that was presented on the 24th April 2013.This allowed the applicants representative an opportunity to become totally aufait with the evidence that the respondent was presenting and allowed the applicant and his representative to deal with the cross examination from an informed point of view. In this regard I cannot find any prejudice that the applicant had suffered as a result of the proceedings staring afresh If anything it convenience the applicant due to him having to make use of the services of a new representative.
7) This is not to say that the respondent did not benefit from the proceeding starting afresh. Due to the respondents original initiator going on maternity leave. The respondent was forced to substitute the proceedings with a new initiator who was also not privy to the proceedings which had taken place on the 24th April 2013. The decision of the presiding officer to start the proceedings afresh served to benefit both the respondent and the applicant party in equal measure, given that both the representatives of the respondent and the applicant were not privy to the proceedings which initially sat on the 24th April 2013 and would have therefore had difficulty in presenting their cases. The decision of the presiding officer to start the proceedings afresh served to mitigate any prejudice that both the respondent and the applicant parties would have suffered due to their change in representation, given that the recording of the proceedings was not available.
8) In terms of the substance, the applicant denied the charges in its entirety. Essentially in this arbitration, there were only two witnesses who attested to what the purported behaviour was or how the events unfolded in the classroom and the staffroom. We are exposed in this respect to the version of the applicant and that of Melita Shivuri. Melita Shivuri gave a detailed account of the manner in which the applicant allegedly touched/rubbed her thighs, both in the classroom and when they had convened in the staffroom. It was the applicant’s submission that Melita Shivuri was being untruthful and that at no time did he rub Melita Shivuri’s thighs. What is common cause though is that Melita Shivuri and her friend were in the applicant’s math class on the morning in question and that Melita Shivuri, her friend and the applicant later proceeded to the staffroom.
9) It must be noted that Melita Shivuri was consistent in her testimony, even in the face of cross examination where there was repetition of the questions being asked. At no time does Melita Shivuri’s testimony come across as rehearsed in any way. If one were to discount the testimony of Shivuri as not being the truth, one would have to question several issues. What would be the reason that Melita Shivuri would have chosen the applicant as the alleged target of her serious allegations? Melita Shivuri recognised the applicant as a good teacher and there is no evidence to suggest that Melita Shivuri would have any vindictiveness towards the applicant. Not even the applicant in his testimony is able to allude to any reason as to why Shivuri would concoct such a serious story with such detail. Melita Shivuri was able to describe where they were seated as well as the manner in which she tried to prevent the applicant from inappropriately touching her in the staffroom. Melita Shivuri indicated that at a point when they were seated in the staff room and the applicant began touching her thighs, she tried to distract him by initially asking for a calculator and later placing a book on her lap. At no time does the applicant challenge this version in cross examination, but conveniently disputes same in his evidence in chief. The applicant also failed to challenge in cross examination as to how they were seated as per the Melita Shivuri’s evidence in chief. Instead only when the matter reconvened on another day and when the applicant was providing his evidence in chief does he make reference to him being seated a distance away from Melita Shivuri in the classroom and that he was also seated away from the desk in the staffroom. Such versions were never put to Melita Shivuri to respond to, instead the applicant conveniently presented same as part of his evidence in chief, after he had an opportunity to think about an alternative version. One therefore has to question why the applicant failed to put these alternative versions to Shivuri in order to test its veracity.
10) It was Shivuri’s version that the applicant had requested that they proceed to the staff room. The applicant never challenged this version in cross examination of Shivuri. However, in his evidence in chief the applicant portrayed the view that he found Shivuri, her friend and another learner waiting outside the classroom and because he was on his way home he requested that they proceed to the staff room because it was on his way out. The applicant further went on to say that there were church groups present at the school as well as cleaning staff thus trying to create the impression that because so many people were around, the acts described by Shivuri could not have taken place. Again such scenarios were never put to Shivuri in cross examination in order for her to respond. One has to therefore question why the applicant reverted to versions of convenience in order to attempt to provide a justifiable defence.
11) Shivuri’s brother-in-law testified that on the Monday when she returned from school, Shivuri was visibly upset and began to cry. It was at this point, when asked by her brother-in-law, that Shivuri had related what had transpired on the Saturday. On becoming aware of the alleged incident they immediately proceeded to report same to the Principal. If Shivuri was not being truthful, then one would have to give Shivuri great credit for her acting skills as she was able to mislead her family into believing that she had been harassed by the applicant. She would have also had to put on a performance at school on the Monday in order for her to be granted permission to leave early.
12) Given the aforementioned, I do not find it probable that Shivuri could have been such a good actor to consistently maintain the distress associated with the incident in question. Furthermore the fact that the applicant had failed to put critical key versions in cross examination to Shivuri which would have disputed Shivuri’s version of events, but rather only deals with an alternative version in his evidence in chief, many days after he had heard Shivuri’s testimony, leads one to conclude that the applicant presented a version of convenience after having had time to review the testimony of Shivuri. Considering that disputing Shivuri’s versions were critical to his case, the applicant should have then put such versions to Shivuri’s to test its veracity. The applicant failed to do so. One can only draw the conclusion that the applicant did not do so, because it possibly would have exposed the consistency of Shivuri’s version or that possibly at the moment of cross examination of Shivuri, the applicant did not have the time to concoct his alternative version and therefore only dealt with his alternative version in his evidence in chief. In the instance Shivuri’s version of events emerges as more probable.
13) The misconduct in the instance is one of a serious nature. Parents send their children into a schooling environment with the understanding that they would be safe and that furthermore the educators assume the role of guardians when the learners are in their care. Educators are meant to protect the learners from harm and to perform their duties with the highest of ethical standards. In the instance the applicant’s behaviour transgressed all ethical standards expected of an educator. The applicant is placed in a position of authority over the learners in his role as educator. Learners look up to educators to be examples of good conduct. The applicant’s behaviour with regard to Shivuri, is not merely isolated to Shivuri, but goes to the possible habitual intent of the applicant. If the applicant could behave in this manner towards Shivuri, nothing prevented him from behaving in the same way towards any other learner in his care. The applicant through his behaviour therefore posed a risk to the safety and wellbeing of learners in his care. It would therefore be in the “paramount interest of the child” that the applicant be removed from an environment where he no longer can be trusted and where his presence places learners wellbeing at risk. In the instance the applicant’s actions has eroded the trust relationship and the applicant can no longer be trusted to be the guardian of learners in his care or that he would conduct himself with the highest of ethical standards. Dismissal is therefore appropriate in the instance.
6. Award
1) The dismissal of the applicant, N Ramps, is both procedurally and substantively fair.
Signed and dated on this the 30 day of July 2015
Ravi Naidoo
ELRC Commissioner