PSES473-16/17 KZN
PSES473-16/17 KZN
Award Date:
30 January 2018
Case Number: PSES473-16/17 KZN
Province: KwaZulu-Natal
Applicant: Mtshali D
Respondent: Department of Education – Kwa-Zulu Natal
Issue: Unfair Dismissal - Misconduct
Venue: Department of Education, Uthukela District office in Ladysmith
Award Date: 30 January 2018
Arbitrator: Protas Cele
Case Number: PSES473-16/17 KZN
Commissioner: Protas Cele
Date of Award: 30 January 2018
In the ARBITRATION between
Mtshali D
(Union / Applicant)
And
Department of Education – Kwa-Zulu Natal
(Respondent)
Union / Employee’s representative : Mr S Vilakazi (SADTU)
Union / Applicant’s address : P. O Box 806
Ladysmith
3370
Telephone: 034 312 5330
Telefax: 034 312 3397
Email: socobs86@gmail.com
Employer’s representative: Ms j Dumisa (ER)
Respondent’s address: Private bag x 9137
Pitermaritzburg
3200
Telephone: 033 846 5173
Telefax: 033 846 5462
Email: Jabu.dumisa@kzndoe.gov.za
Details of Hearing and Representation
1. An alleged unfair dismissal dispute was referred to the ELRC in terms of section 191(1) and 191 (5) (a) of the Labour Relations Act 66 of 1995 (LRA), as amended.
2. The arbitration hearing was held at the Department of Education, Uthukela District office in Ladysmith on 11-12 September 2017, 31 October 2017 and 15 January 2018. The Applicant, D Mtshali was represented by Mr Sphamandla Vilakazi, a full time shop steward from SADTU and Ms Jabu Dumisa, a Deputy Manager, ER, represented the Respondent.
3. The hearing was conducted in English and IsiZulu and was digitally recorded. The interpreter was Bhekumuzi Hadebe.
Issue to be decided
4. The issue to be decided is whether or not the dismissal of the Applicant was substantively and procedurally fair, and if it was not, what relief he is entitled to, and the quantification thereof.
Background to the dispute
5. The Applicant was employed by the Respondent on 7 July 2002 as an educator. He was an HOD for commerce at Ingula High School, a position he had occupied since 2011. The Respondent dismissed him on 23 August 2016 for misconduct. Its case was that he had engaged in a sexual relationship with two learners from Ingula High School. The dismissal was effected following a disciplinary enquiry which was conducted in his absence on 28 March 2014 because he did not attend his disciplinary hearing.
6. The Applicant denied the allegations and contended that the Principal of the school Mr Robert Khumalo instigated the allegations because he (Applicant) had confronted him (Principal) about the corruption that was taking place in relation to the feeding scheme. He further contended that he was not given an opportunity to state his case and that the Respondent proceeded with the disciplinary enquiry in spite of being aware that he was still receiving treatment from a doctor.
Survey of Evidence and Argument
Respondent’s Evidence
7. The Respondent produced a bundle of documents which was admitted and led the evidence of three witnesses, Indran Pillay, Deputy Chief Education specialist, Zamokwakhe Robert Khumalo, Principal of Ingula High School and Jabulile Deborah Shabalala, Deputy Principal of Ingula High School.
8. Indran testified that he is employed as a Deputy Chief Education specialist and that he is also acting as a Deputy Manager, Human Resource Management in Umlazi District. In 2014 he was a Senior Personnel Practitioner, Employee Relations.
9. He referred to page 18 of the bundle of documents, a letter of suspension, P19, notice to attend the disciplinary hearing, page 21-30, and findings of the chairperson and explained that he was the presiding officer at the hearing which was scheduled for the Applicant. The hearing was initially scheduled to take place on 11 March 2014 at Uthukela District Office but the Applicant did not attend. His representative from SADTU, Mr R Ramdewo, handed in a sick note stating that he (Applicant) was suffering from acute stress disorder and that he would be fit for duty on 25 March 2014. The hearing was then rescheduled to a date after the advice from the medical practitioner. The note was generated by Dr Ntshangase and Nkosi, General Practitioners. The hearing was postponed on the basis that if the Applicant was still ill a detailed report from a specialist psychiatrist would be required regarding his cognitive ability to follow the proceedings at the hearing.
10. The hearing reconvened on 28 Marc 2014 and the Applicant was still not present. On this occasion, he was represented by Mr Myende from SADTU who stated that the Psychologist had said that he could not provide a report as this would only be generated in his third session with the Applicant. Myende then requested for a further postponement.
11. At this stage there was no report from the Psychiatrist as requested previously and if the report by the Psychiatrist would only be generated on his third consultation with the Applicant, it would seem that the Applicant was well enough to attend to the Psychiatrist three times and well enough in-between to lead a normal life. There was no reason therefore why he could not attend the hearing.
12. The Applicant had no previous history of this condition and it would appear that the stress disorder seemed to have resulted from the allegations against him. The request by Mr Mydende for another postponement was therefore declined and the hearing proceeded as scheduled. The Union Representative remained in attendance for the duration of the hearing.
13. Indran further testified that the two learners were clear in their evidence and convincing. They corroborated the Applicant’s modus operandi in that he made contact with them, asked for their contact numbers, gave them money, met them at the taxi rank, took them to a lodge and had sex with them. They broke down during their testimony as they gave a detailed account of their encounter with the Applicant. Their evidence did not seem to be fabricated or made up.
14. He stated that the nature of a section seventeen charge makes dismissal mandatory and because he found that the Applicant did sexually assault the two learners, the only sanction applicable to him was that of dismissal. His continued employment would pose an operational risk to the employer and the trust relationship had been irretrievably broken down. He could not be trusted to teach learners or to be in contact with them and that his conduct in at least one instance actually amounts to statutory rape.
15. Robert Khumalo testified that he is the Principal of Ingula High School, the position he has occupied since 2014. The Applicant was an HOD for Commerce at the school. He referred to page 38-42 of the bundle of documents and stated that he requested the circuit manager in a letter contained on page 38 of the bundle of documents, to conduct an investigation after Mrs D.P Masengemu, a parent of a learner, Sekwanele Mdlalose, who was a grade 9 learner at the school, had presented a letter requesting the school to investigate a case of a sexual relationship involving her child and an educator, Mr D.L Mtshali.
16. He further referred to page 39 of the bundle, a letter from Masengemu and testified that Masengemu had stated that she was informed by Sekwanele, her child, that the Applicant had slept with her and took her virginity. Masengemu further stated that her child claimed that there were several other learners who were being sexually assaulted by the Applicant. He gave them money and asked them to meet him at Hlalanathi Lodge where he had sex with them.
17. Robert testified that he had requested Masengemu to write the letter on page 39 after she had come to the school and made a verbal report about the sexual relationship involving the Applicant and her child and that she had noticed that the child was not doing well at home and in her school work.
18. He stated that because the allegations involved a female learner, he then asked Ms Shabalala and Ms Sibisi to speak to the learner. The learner confirmed the allegations and further revealed that there were other learners who were also involved as victims. Shabalala and Sibisi them started to investigate the allegations. They called for learners who were similar victims to come forward. Amanda Buthelezi, another female learner, came forward and confirmed that the Applicant had given her money to go to town and meet him whereupon he had sex with her.
19. He explained that on 22 November 2013 he convened a School Management Team (SMT) meeting to deliberate on the matter. He referred to page 43-44 of the bundle, minutes of the meeting, and stated that there were six people in attendance, including the Applicant. It was Ms J.D Shabalala (Deputy Principal), Ms T.G Mhlongo (HOD), Mrs T.W.B Madinane (HOD), Mrs A.Z Sibisi (HOD), Mr D.L Mtshali (Applicant and HOD) and himself. When the SMT confronted the Applicant about the allegations, he initially denied but when he was questioned further, he eventually agreed that he had sex with two female learners but stated that it happened in 2012. The minutes were signed by all the people who were in attendance except the Applicant who left before the meeting was concluded stating that he was rushing somewhere.
20. He referred to page 40-42 of the bundle, learners’ statements and testified that Ms Shabalala obtained statements from the two female learners, Sekwanele Mdlalose and Amanda Buthelezi. On 14 January 2014 he wrote the letter on page 38 of the bundle, attached the letter from Masengemu, Sekwanele’s mother, statements from the two learners, Sekwanele and Amanda, and requested the Circuit Manager, Mr Mbonani for a departmental investigation into the allegations.
21. He explained that after the letter he had written to the Circuit Manager, Officials from Labour Section Special Need Services (SNARES) interviewed the two learners who were in tears when they were giving a narrative of their encounter with the Applicant. He referred to page 50 of the bundle, out-patient hospital record, and stated that he was not aware of this document and that there were no previous reports that Sekwanele Mdlalose was using drugs or that she had a drug addiction.
22. He finally referred to page 46, an affidavit deposed by Sekwanele Mdlalose after the disciplinary enquiry and explained that he was not aware of the affidavit and that it was not given to him as the Principal of the school. Sekwanele averred that she would present herself at the arbitration hearing and testify on behalf of the Applicant. She had been used and forced to incriminate the Applicant. He also denied that he was aware of the affidavit on page 48 of the bundle, deposed by Amanda Buthelezi, also after the disciplinary enquiry, wherein she made similar averments to the affidavit deposed by Sekwanele on page 46.
23. Robert concluded his evidence by testifying that the Applicant was a Post level 1 educator, HOD for Commerce, an excellent educator, very efficient and that there was no misunderstanding between him and the Applicant.
24. Deborah testified that she is the Deputy Principal at Ingula High School and that the Applicant was an HOD for Commerce at the school. The Principal, Robert, had called her and Ms Sibisi to the office and asked them to speak to the learner, Sekwanele, and check if the allegations brought by her mother, Masengemu, were true.
25. They spoke to the learner who was relatively young, shy and looking down. She told them that in 2012 while she was in grade 8 the Applicant would send her to buy cold drink and tell her to keep the change. On one particular Saturday he told her to meet him in town whereupon he took her to Hlalanathi Lodge where he had sex with her. It was painful and she was bleeding.
26. They reported to the Principal what the learner had said whereupon the Principal asked them to go to the classrooms and encourage female learners who were victims of similar conduct to come forward. Sekwanele had provided them with a name of another learner, Bella, but when they questioned Bella about the allegations she stated that the Applicant was still proposing love to her and he had not slept with her.
27. Amanda Buthelezi then approached her and claimed that the Applicant had slept with her in 2012 at Hlalanathi Lodge. She (Amanda) wrote a statement which she (Deborah) gave to the Principal. She referred to page 42 and explained that Amanda had written the statement and handed it over to her.
28. She testified that she met with the parents of the learners when Ms Lihle from Labour Relations Directorate came and spoke to the learners at the office and also when social workers visited the school to talk to the learners about the same issue. The social workers advised that the learners should go to the police station and open a case.
29. Masengemu Sekwanele’s mother, then complained to her that her child was no longer feeling comfortable at school after other learners had written her name in the toilet. She (Deborah) informed the Principal who in turn spoke to the Circuit Manager, Mr Mbonani. Mbonani arranged for Sekwanele to be transferred to a neighbouring school, Kilpriver High School.
30. She confirmed that she attended the SMT meeting and that the Applicant initially denied the allegations but eventually admitted that he had slept with the learners in 2012. She referred to page 48 of the bundle, affidavits deposed by the learners after they had testified at the disciplinary hearing, and testified that she had not seen the affidavits previously. She denied that the learners were forced to testify. She concluded by saying that she had no vendetta against the Applicant and that in fact they had a good relationship.
Applicant’s evidence
The Applicant led the evidence of five witnesses, Duduzile Pauline Mdlalose (Masengemu), Sekwanele Mdlalose, Amanda Khumalo, Nonkululeko Hadebe (Bella) and the Applicant.
31. Masengemu testified that she is employed as a domestic worker and that Sekwanele is her daughter. She denied that she went to Ingula High School to report that her daughter was not doing well at home and in her school work and asked the principal to investigate allegations of a sexual relationship involving her daughter and the Applicant.
32. In October / November 2013 Ms Shabalala called her and asked if she was at home. She (Shabalala) then came to her home in her vehicle and took her to the Principal’s office. The Principal and Shabalala showed her statements that were written by Amanda and Sekwanele. They told her that the statements had already been submitted to the Department of Education and that the department needed letters from the parents of the learners to support the statements.
33. She referred to the letter contained on page 39 of the bundle and stated that they also told her to write the letter appearing on that page and state that she had approached the school with a complaint. She asked them if that was not going to get her into trouble and when they assured her that it was not, she then wrote the letter.
34. Shabalala called her again and thereafter fetched her and Sekwanele and took them to a hearing. She (Masengemu) confirmed that her daughter was transferred to Klipriver High School after the learners at Ingula High School had written her name in the toilet. Sekwanele was always crying and saying this case is wrong and that Ms Sibisi and Ms Shabalala had told her and Amanda to write the statements.
35. Sekwanele attended school for about one or two months before she stopped altogether. She was not coping with her school work. She referred to page 49 of the bundle, a client referral letter from Watersmith Clinic, and testified that she had taken Sekwanele at one stage to a clinic and thereafter to the hospital after she had taken drugs in her room at home.
36. During cross examination she conceded that she did not ask to speak to her daughter Sekwanele, to confirm the allegations contained in her (Sekwanele) statement before she wrote her own statement at the Principal’s office. She further conceded that when her daughter subsequently told her that the statement was not true, she did not go back to the school to report to the Principal and Ms Shabalala what her daughter had told her or to retract her own statement, instead she accompanied her daughter to the hearing and also did not tell anyone there what her daughter had said to her.
37. She also conceded that her daughter did not get the laptop that she (Sekwanele) had claimed when she (Masengemu) spoke to her about the allegations, Ms Shabalala had promised her.
38. Sekwanele testified that she has a child who is nine months old and that she is living in Watersmith with her siblings. She is currently unemployed and not doing any studies. She attended school at Ingula High School in 2013 and then transferred to Klipriver in 2014.
39. Her mother did not come to the school to make a complaint. The Principal called her mother to the school in relation to the letters that she and Amanda had been told to write. Ms Shabalala and Ms Sibisi sent a grade 8 learner to call her from the classroom whereupon she was told to write the letter contained on page 40-41 of the bundle, at the Principal’s office. They said the letter was going to be read at the school assembly.
40. They asked her if there was any teacher who had proposed love to her and also if she was in a relationship with a school boy. Her response was “no” to the first question and “yes” to the second question. They then told her that there was a teacher who was sleeping with learners and then asked her to write a letter which was going to be used to alert other learners. They told her that they would do anything for her. They also told her that they would tell her what to write.
41. She asked them if this was not going to put her into trouble and when they assured her that it would not and that it would help to alert other learners, she then wrote the letter. They told her that the teacher in question was Mr Mtshali, the Applicant. What she wrote in the letter did not take place and she was worried that it was a lie.
42. Shabalala told her that she would arrange a place for her to attend school at Klipriver and she would purchase a laptop for her at the end of the year. She was happy that she was going to attend a school in town. It was towards the end of the year when she wrote the letter. She told Ms Shabalala at the beginning of the following year that she was no longer prepared to go along with the arrangement when Shabalala told her that parents were going to be involved.
43. She lied about everything in the letter and even when she testified under oath at the disciplinary hearing she was only 13 years old, very young and the teachers’ had told her to write the letter. She denied that Shabalala and Sibisi ever came to the classrooms to talk to female learners.
44. After the disciplinary hearing she was transferred to Klipriver because the learners had written her name in the toilet. She did not finish school at Klipriver because Ms Shabalala no longer gave her a coupon for the bus and had paid only half of her school fees.
45. She felt bad about lying about the incident and that she did not get what Ms Shabalala had promised her. She felt that she had been used and at home she took drugs. The evidence that she gave at the hearing had been rehearsed and Shabalala had told her what to say.
46. During cross examination she conceded that Lihle from Labour Services had spoken to her before the hearing as well as social workers and that the interviews took place before the hearing was conducted. She further conceded that she did not open the case and explained that it was because everything was a lie.
47. Amanda Buthelezi testified that during 2012-2013 she was doing grade 10 at Ingula High School and the Applicant taught history, the class consisted of 50 learners.
48. Ms Shabalala called her to the Principal’s office where she found the Principal, Ms Sibisi and Bell. Shabalala then told her that a parent had come to report that she (Amanda) and Bella were fighting on the road. She denied that she was involved in a fight and said that did not have a problem with her. Shabalala and Sibisi then said that the parent had also said that they were fighting over Mr Mtshali (Applicant).
49. Bella then left the office whereupon Shabalala and Sibsi asked her if she was aware of any sexual relationship between learners and the Applicant. She told them that the sexual relationship she was aware of was between a learner and a teacher, Mr Mthethwa. Bella was upset when she left the office and as she was leaving she stated that she did not want to get involved in these things and according to (Amanda) she (Bella) was referring to the alleged fight over a teacher (Applicant).
50. After Bella had left, the Principal also left. Shabalala and Sibisi then asked her to write a letter which was going to be used to alert the learners about the teachers who were sleeping with learners. They said that the letter was going to be used internally, within the school. They also said that it would not reflect her name. The letter was never read at school to the learners. Ms Shabalala told her what to write and everything that she wrote was a lie.
51. She did not tell her parents about the letter but when she spoke to her friend, Mbali, she (Mbali) discouraged her into continuing with this arrangement stating that she had also been approached. After she had spoken to Mbali she then wrote another letter stating that what she had done was wrong and that she was no longer prepared to continue with the arrangement. Ms Shabalala tore the second letter. She (Shabalala, Sibisi and the Principal) then promised to pay for her school fees, buy stationary and purchase a laptop for her. She did not go to the police regarding the allegations against the Applicant and Shabalala and Sibisi told her to cry at the hearing so that allegations would appear to be serious.
52. She conceded during cross examination that she did not inform her parents even when she went to the disciplinary hearing at which stage it was apparent that the matter was getting serious. She admitted that she was 18 years old in 2012-2013 and that she was repeating grade 10.
52. She confirmed that the document appearing on page 48 of the bundle, is her affidavit and that she had given it to the Applicant’s representative after she had signed it because he had approached her. She was with her friends, Njabulo Thusi and Nkululeko Majozi when she signed the affidavit. She was not aware whether the Applicant did open a case against her or against Ms Shabalala after she had signed the affidavit.
53. Nonkululeko Hadebe (Bella) testified that she was attending Ingula High School and doing grade 11 in 2013, She was present at the meeting which took place at the Principal’s office when Shabalala and Sibisi questioned them (Amanda and her) about a fight which had allegedly taken place between them. She denied the allegations, got upset and left the office.
54. Shabalala and Sibsis called her again to the office later, around 12h30, where they told her in the presence of the Principal that the meeting they had earlier was not about a fight but it was about Mtshali (Applicant) being the father of her child. She denied that Mtshali is the father of her child and told them that she knew who the father was. She told her mother and grandmother about what the teachers had said to her. She concluded her testimony by stating that she did not testify at the disciplinary hearing.
55. Mtshali (Applicant) testified that in 2013 he taught business studies in grade 10 (b), 11 (b) and 12 (b) at Ingula High School. He started to teach at Ingula in September 2003. In 2013 there were 7 male teachers at the school. He was in the school Management Team together with Ms Shabalala and Ms Sibisi and he was an HOD for commerce. They were not very close and related to one another as colleagues. The Principal of the school was Mr Z. R Khumalo. They were also not that close and only met at the meetings.
56. Mrs Mavimbela was responsible for sexual harassment cases but she was not part of the School Management Team. He did not know Sekwanele Mdlalose until he saw her name on the charge sheet when he was preparing to lodge an appeal against his dismissal. He also saw Amanda Buthelezi’s name which was mentioned along with Sekwanele’s name on the charge sheet. He denied that he called them and slept with them at Hlalanathi Lodge. He further denied that he knew Hlalanathi Lodge.
57. He testified that he was not part of the School Management Team meeting on 22 November 2013 during which he allegedly admitted that he had a sexual relationship with 2 learners in 2012. He explained that an exercise book would normally be circulated before a meeting was held and that the minutes would be written in the same book. This procedure was not followed in relation to the meeting which was allegedly conducted on 22 November 2013 and that the minutes of that meeting were written on an exam pad.
58. He stated that he discovered in the middle of 2013 that the Principal of Kikintalock, a neighbouring school, about 15km from Ingula, was supplying food to the school (Ingula). According to his knowledge teachers are not allowed to have tenders and he wondered how an educator from another school would get involved in a feeding scheme of another school. He then confronted his school Principal about the matter and noticed that the Principal (Khumalo) was uncomfortable when he approached him. He stated that he believes that the allegations emanate from that incident.
59. He further testified that he taught Bella and that he heard that she had been questioned about him and the child that she was carrying. Bella told him about this when they met in town after he had received the charge sheet which contained certain names of which Bella was one of them. He stated that Mrs Mavimbela was appointed to handle sexual harassment cases, but the Principal told Ms Shabalala and Ms Sibisi to interview the learners because the whole issue was a conspiracy and that they all colluded against him.
60. During cross examination, he stated that he was not aware if the Principal was charged with corruption relating to the feeding scheme but confirmed that he had reported the matter to Moses, an official from the Department of Education, school supplies. He was the only male HOD and spent most of his time alone and the female counterparts were not comfortable with that. He explained that the learners were coached and that they also said that they were given papers to rehearse. He confirmed that his representative conducted a research to establish where the learners were staying and then brought them to the arbitration hearing after his (Representative) had arranged for them to make affidavits, without involving the parents.
Closing Arguments
Respondent’s Argument
61. Ms Dumisa argued that the Applicant committed a serious misconduct and that a section 17 charge that makes dismissal mandatory.
62. She argued that the principal testified that Sekwanele’s mother came to the school to report that her daughter had been sexually abused by the Applicant and also wrote a letter to this effect whereupon Ms Shabalala and Ms Sibisi were asked to investigate the allegations.
63. They spoke to the learner (Sekwanele) who admitted everything and also gave the name of other learners who had a sexual relationship with the Applicant. Her statement is contained on page 40-41 of the bundle.
64. Officials from Social Development and Labour Section held several meetings with the learners before the disciplinary enquiry was conducted. The Applicant himself admitted at the SMT meeting on 22 November 2014 that he did have a sexual relationship with Sekwanele in 2012.
65. Sekwanele had given shabalala and Sibisi the name of another learner with the surname Kubheka. They then started to interview leaners and telling them about the danger of having a sexual relationship with educators. One learner, Amanda, came forward and also wrote a statement to this effect.
66. She argued that the learners who now claim that they were coersed by Ms Shabalala to lie against the Applicant, did not inform the officials from Social Development and Labour Section when they had all the opportunity to do so at the meetings that were conducted before the disciplinary enquiry. In the disciplinary hearing they did not inform the employer representative.
67. They testified at the disciplinary hearing and even broke down to show the effect of the abuse they had endured, because they were telling the truth. The evidence at the arbitration that the Principal promised to buy them laptops is clearly a fabrication.
68. Amanda testified that she had been accompanied by the Applicant’s Representative Mr Vilakazi to the Police station to withdraw her statement. Both learners deposed similar affidavits in the absence of their parents.
69. The Applicant failed to prove his conspiracy theory and his claim that the Principal had committed corruption in relation to the supply of food to the school.
Applicant’s Argument
70. Mr Vilakazi argued that the Respondent failed to prove its allegations against the Applicant. Ms Sibisi was not called to testify which proves that there was a conspiracy between the Principal and Ms Shabalala against the Applicant. Only the Principal and Ms Shabalala testified on the minutes of the meeting contained on page 43 of the bundle.
71. The letter from Sekwanele’s mother came after the investigation and the SMT meeting. The parent reported the matter on 14 November 2013 and it took five days thereafter for Ms Shabalala and Ms Sibisi to conclude their investigation. The matter was only reported to the District on 14 January 2014 and yet they say that it was urgent.
72. The investigation was conducted in November. Ms Shabalala and Ms Sibisi are SMT members and the learners were writing examinations. It is intriguing where there would have been time for such investigation. If the investigation was conducted it is further intriguing why it did not affect the learners as they managed to make it to the next class the following year.
73. Ms Shabalala, the social workers and the personnel from labour relations office never advised the learners and parents to go and open a case.
Analysis of Evidence and Argument
74. Section 33(1) of the Constitution of the Republic of South Africa states that everyone has the right to administrative action that is lawful, reasonable and procedurally fair. Item 2(1) of the Code of Good Practice: Dismissal, provides that dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure.
75. In the present case the Applicant is contending that the Principal of Ingula High School, Mr Robert Khumalo colluded with the Deputy Principal, Deborah Shabalala against him. His further contention is that emanating from that conspiracy, Robert and Deborah coerced the learners to tender false evidence against him.
76. He attributes the conspiracy to the fact that he allegedly reported and linked the Principal to the corruption relating to the supply of food to Ingula High School by a Principal of a neighbouring school, Kikintalock. The Applicant did not lead any evidence to substantiate this claim which, according to him precipitated the false allegations and the ultimate dismissal.
77. The operation of our law has a clear dermacation between facts and perceptions, and in the absence of any evidence to substantiate this claim, I find no bases on which it can be said to be true that the Applicant was dismissed as a result of a collusion and a conspiracy as alleged.
78. Having regard to the evidence presented, the credibility of the witnesses, the arguments presented, the nature of the Applicant’s work and the Respondent’s operations, it is my finding on a balance of probabilities that the Respondent’s version is more probable than that of the Applicant.
79. The Applicant and his witnesses deliberately and consciously set out to lie about the events which gave rise to the dispute and to mislead the tribunal.
80. It is highly improbable that Masengemu (Sekwanele’s mother) would have written about the complaint based on the learner’s statement and what the Principal and Ms Shabalala told her without confirming the allegations with her daughter, who was present at the school when she wrote the letter.
81. Sekwanele and Amanda testified at the disciplinary hearing and gave detailed and compelling evidence which no reasonable decision maker would ignore. At arbitration they testified that they were coerced and lured into making false allegations against the Applicant and hence they changed their statements.
82. Bella was not present at the disciplinary hearing nor did she testify. She surfaced at arbitration to testify on behalf of the Applicant. No weight can be attached to her evidence since the aspects of her testimony i.e altercation between Amanda and her in the street and the paternity issue relating to her child, are not relevant and will not assist the tribunal in the determination of the matter.
83. Neither the Applicant nor the learners reported to the department that they (learners) were forced to falsely implicate the Applicant. No case was registered with the SAPS to this effect. The officials from Social Development and Labour Relations were not informed about these serious allegations, instead the learners were lured to the police station to change their statements, without their parents being involved in the process.
84. In these circumstances it is my finding on a balance of probabilities that the dismissal was substantively fair.
85. In the matter of Old Mutual Life Assurance Co SA Ltd v Gumbi (2007) 28 ILJ 1499 (SCA), Mr Gumbi had been dismissed following a disciplinary enquiry in which he was found guilty of misconduct. Mr Gumbi challenged his dismissal in the High Court on the basis that the enquiry had been held in his absence and that, as a result, he had been denied a hearing before the decision to dismiss him was taken. The Court found that Mr Gumbi had wilfully and voluntarily excluded himself from the disciplinary hearing and that his dismissal was consequently fair. In an appeal to the full court the majority reversed the decision of the court a quo. The employer was granted special leave to appeal to the Supreme Court of Appeal. The Supreme Court of Appeal (SCA) noted that an employee's entitlement to a pre-dismissal hearing is well recognized in our law, having as its source the common law or a statute which applies to the employment relationship between the parties. In recognizing this right our law is consistent with international law relating to pre-dismissal hearings. Having considered the provisions of the Constitution 1996, the LRA 1995, judicial authority and international law, the SCA held that the right to a pre-dismissal hearing imposes upon employers nothing more than the obligation to afford employees the opportunity of being heard before employment is terminated by means of a dismissal. Should the employee fail to take the opportunity offered, in a case where he or she ought to have, the employer's decision to dismiss cannot be challenged on the basis of procedural fairness. The SCA found that the employer had offered Mr Gumbi a chance to defend himself against the allegations of misconduct which led to his dismissal. He did not take the opportunity and, on the facts, it was clear that the employee intended to prevent the hearing from being held and that his absence was not justified. The SCA was accordingly satisfied that the employer had not acted procedurally unfairly in continuing with the hearing in the employee's absence and dismissing him for the misconduct of which he was found guilty. The employee and his representative were the only persons to blame for his absence from the hearing.
86. The Applicant knew about his disciplinary hearing and made an election not attend the disciplinary hearing. Therefore, he was afforded an opportunity to be heard before a decision was made to terminate his contract but he unfortunately elected not to attend his disciplinary hearing. The dismissal on procedural grounds is fair.
Award
87. The dismissal of the Applicant, D Mtshali was both procedurally and substantively fair. The Applicant is not entitled to any relief.
T.P Cele ( Panelist)
Province: KwaZulu-Natal
Applicant: Mtshali D
Respondent: Department of Education – Kwa-Zulu Natal
Issue: Unfair Dismissal - Misconduct
Venue: Department of Education, Uthukela District office in Ladysmith
Award Date: 30 January 2018
Arbitrator: Protas Cele
Case Number: PSES473-16/17 KZN
Commissioner: Protas Cele
Date of Award: 30 January 2018
In the ARBITRATION between
Mtshali D
(Union / Applicant)
And
Department of Education – Kwa-Zulu Natal
(Respondent)
Union / Employee’s representative : Mr S Vilakazi (SADTU)
Union / Applicant’s address : P. O Box 806
Ladysmith
3370
Telephone: 034 312 5330
Telefax: 034 312 3397
Email: socobs86@gmail.com
Employer’s representative: Ms j Dumisa (ER)
Respondent’s address: Private bag x 9137
Pitermaritzburg
3200
Telephone: 033 846 5173
Telefax: 033 846 5462
Email: Jabu.dumisa@kzndoe.gov.za
Details of Hearing and Representation
1. An alleged unfair dismissal dispute was referred to the ELRC in terms of section 191(1) and 191 (5) (a) of the Labour Relations Act 66 of 1995 (LRA), as amended.
2. The arbitration hearing was held at the Department of Education, Uthukela District office in Ladysmith on 11-12 September 2017, 31 October 2017 and 15 January 2018. The Applicant, D Mtshali was represented by Mr Sphamandla Vilakazi, a full time shop steward from SADTU and Ms Jabu Dumisa, a Deputy Manager, ER, represented the Respondent.
3. The hearing was conducted in English and IsiZulu and was digitally recorded. The interpreter was Bhekumuzi Hadebe.
Issue to be decided
4. The issue to be decided is whether or not the dismissal of the Applicant was substantively and procedurally fair, and if it was not, what relief he is entitled to, and the quantification thereof.
Background to the dispute
5. The Applicant was employed by the Respondent on 7 July 2002 as an educator. He was an HOD for commerce at Ingula High School, a position he had occupied since 2011. The Respondent dismissed him on 23 August 2016 for misconduct. Its case was that he had engaged in a sexual relationship with two learners from Ingula High School. The dismissal was effected following a disciplinary enquiry which was conducted in his absence on 28 March 2014 because he did not attend his disciplinary hearing.
6. The Applicant denied the allegations and contended that the Principal of the school Mr Robert Khumalo instigated the allegations because he (Applicant) had confronted him (Principal) about the corruption that was taking place in relation to the feeding scheme. He further contended that he was not given an opportunity to state his case and that the Respondent proceeded with the disciplinary enquiry in spite of being aware that he was still receiving treatment from a doctor.
Survey of Evidence and Argument
Respondent’s Evidence
7. The Respondent produced a bundle of documents which was admitted and led the evidence of three witnesses, Indran Pillay, Deputy Chief Education specialist, Zamokwakhe Robert Khumalo, Principal of Ingula High School and Jabulile Deborah Shabalala, Deputy Principal of Ingula High School.
8. Indran testified that he is employed as a Deputy Chief Education specialist and that he is also acting as a Deputy Manager, Human Resource Management in Umlazi District. In 2014 he was a Senior Personnel Practitioner, Employee Relations.
9. He referred to page 18 of the bundle of documents, a letter of suspension, P19, notice to attend the disciplinary hearing, page 21-30, and findings of the chairperson and explained that he was the presiding officer at the hearing which was scheduled for the Applicant. The hearing was initially scheduled to take place on 11 March 2014 at Uthukela District Office but the Applicant did not attend. His representative from SADTU, Mr R Ramdewo, handed in a sick note stating that he (Applicant) was suffering from acute stress disorder and that he would be fit for duty on 25 March 2014. The hearing was then rescheduled to a date after the advice from the medical practitioner. The note was generated by Dr Ntshangase and Nkosi, General Practitioners. The hearing was postponed on the basis that if the Applicant was still ill a detailed report from a specialist psychiatrist would be required regarding his cognitive ability to follow the proceedings at the hearing.
10. The hearing reconvened on 28 Marc 2014 and the Applicant was still not present. On this occasion, he was represented by Mr Myende from SADTU who stated that the Psychologist had said that he could not provide a report as this would only be generated in his third session with the Applicant. Myende then requested for a further postponement.
11. At this stage there was no report from the Psychiatrist as requested previously and if the report by the Psychiatrist would only be generated on his third consultation with the Applicant, it would seem that the Applicant was well enough to attend to the Psychiatrist three times and well enough in-between to lead a normal life. There was no reason therefore why he could not attend the hearing.
12. The Applicant had no previous history of this condition and it would appear that the stress disorder seemed to have resulted from the allegations against him. The request by Mr Mydende for another postponement was therefore declined and the hearing proceeded as scheduled. The Union Representative remained in attendance for the duration of the hearing.
13. Indran further testified that the two learners were clear in their evidence and convincing. They corroborated the Applicant’s modus operandi in that he made contact with them, asked for their contact numbers, gave them money, met them at the taxi rank, took them to a lodge and had sex with them. They broke down during their testimony as they gave a detailed account of their encounter with the Applicant. Their evidence did not seem to be fabricated or made up.
14. He stated that the nature of a section seventeen charge makes dismissal mandatory and because he found that the Applicant did sexually assault the two learners, the only sanction applicable to him was that of dismissal. His continued employment would pose an operational risk to the employer and the trust relationship had been irretrievably broken down. He could not be trusted to teach learners or to be in contact with them and that his conduct in at least one instance actually amounts to statutory rape.
15. Robert Khumalo testified that he is the Principal of Ingula High School, the position he has occupied since 2014. The Applicant was an HOD for Commerce at the school. He referred to page 38-42 of the bundle of documents and stated that he requested the circuit manager in a letter contained on page 38 of the bundle of documents, to conduct an investigation after Mrs D.P Masengemu, a parent of a learner, Sekwanele Mdlalose, who was a grade 9 learner at the school, had presented a letter requesting the school to investigate a case of a sexual relationship involving her child and an educator, Mr D.L Mtshali.
16. He further referred to page 39 of the bundle, a letter from Masengemu and testified that Masengemu had stated that she was informed by Sekwanele, her child, that the Applicant had slept with her and took her virginity. Masengemu further stated that her child claimed that there were several other learners who were being sexually assaulted by the Applicant. He gave them money and asked them to meet him at Hlalanathi Lodge where he had sex with them.
17. Robert testified that he had requested Masengemu to write the letter on page 39 after she had come to the school and made a verbal report about the sexual relationship involving the Applicant and her child and that she had noticed that the child was not doing well at home and in her school work.
18. He stated that because the allegations involved a female learner, he then asked Ms Shabalala and Ms Sibisi to speak to the learner. The learner confirmed the allegations and further revealed that there were other learners who were also involved as victims. Shabalala and Sibisi them started to investigate the allegations. They called for learners who were similar victims to come forward. Amanda Buthelezi, another female learner, came forward and confirmed that the Applicant had given her money to go to town and meet him whereupon he had sex with her.
19. He explained that on 22 November 2013 he convened a School Management Team (SMT) meeting to deliberate on the matter. He referred to page 43-44 of the bundle, minutes of the meeting, and stated that there were six people in attendance, including the Applicant. It was Ms J.D Shabalala (Deputy Principal), Ms T.G Mhlongo (HOD), Mrs T.W.B Madinane (HOD), Mrs A.Z Sibisi (HOD), Mr D.L Mtshali (Applicant and HOD) and himself. When the SMT confronted the Applicant about the allegations, he initially denied but when he was questioned further, he eventually agreed that he had sex with two female learners but stated that it happened in 2012. The minutes were signed by all the people who were in attendance except the Applicant who left before the meeting was concluded stating that he was rushing somewhere.
20. He referred to page 40-42 of the bundle, learners’ statements and testified that Ms Shabalala obtained statements from the two female learners, Sekwanele Mdlalose and Amanda Buthelezi. On 14 January 2014 he wrote the letter on page 38 of the bundle, attached the letter from Masengemu, Sekwanele’s mother, statements from the two learners, Sekwanele and Amanda, and requested the Circuit Manager, Mr Mbonani for a departmental investigation into the allegations.
21. He explained that after the letter he had written to the Circuit Manager, Officials from Labour Section Special Need Services (SNARES) interviewed the two learners who were in tears when they were giving a narrative of their encounter with the Applicant. He referred to page 50 of the bundle, out-patient hospital record, and stated that he was not aware of this document and that there were no previous reports that Sekwanele Mdlalose was using drugs or that she had a drug addiction.
22. He finally referred to page 46, an affidavit deposed by Sekwanele Mdlalose after the disciplinary enquiry and explained that he was not aware of the affidavit and that it was not given to him as the Principal of the school. Sekwanele averred that she would present herself at the arbitration hearing and testify on behalf of the Applicant. She had been used and forced to incriminate the Applicant. He also denied that he was aware of the affidavit on page 48 of the bundle, deposed by Amanda Buthelezi, also after the disciplinary enquiry, wherein she made similar averments to the affidavit deposed by Sekwanele on page 46.
23. Robert concluded his evidence by testifying that the Applicant was a Post level 1 educator, HOD for Commerce, an excellent educator, very efficient and that there was no misunderstanding between him and the Applicant.
24. Deborah testified that she is the Deputy Principal at Ingula High School and that the Applicant was an HOD for Commerce at the school. The Principal, Robert, had called her and Ms Sibisi to the office and asked them to speak to the learner, Sekwanele, and check if the allegations brought by her mother, Masengemu, were true.
25. They spoke to the learner who was relatively young, shy and looking down. She told them that in 2012 while she was in grade 8 the Applicant would send her to buy cold drink and tell her to keep the change. On one particular Saturday he told her to meet him in town whereupon he took her to Hlalanathi Lodge where he had sex with her. It was painful and she was bleeding.
26. They reported to the Principal what the learner had said whereupon the Principal asked them to go to the classrooms and encourage female learners who were victims of similar conduct to come forward. Sekwanele had provided them with a name of another learner, Bella, but when they questioned Bella about the allegations she stated that the Applicant was still proposing love to her and he had not slept with her.
27. Amanda Buthelezi then approached her and claimed that the Applicant had slept with her in 2012 at Hlalanathi Lodge. She (Amanda) wrote a statement which she (Deborah) gave to the Principal. She referred to page 42 and explained that Amanda had written the statement and handed it over to her.
28. She testified that she met with the parents of the learners when Ms Lihle from Labour Relations Directorate came and spoke to the learners at the office and also when social workers visited the school to talk to the learners about the same issue. The social workers advised that the learners should go to the police station and open a case.
29. Masengemu Sekwanele’s mother, then complained to her that her child was no longer feeling comfortable at school after other learners had written her name in the toilet. She (Deborah) informed the Principal who in turn spoke to the Circuit Manager, Mr Mbonani. Mbonani arranged for Sekwanele to be transferred to a neighbouring school, Kilpriver High School.
30. She confirmed that she attended the SMT meeting and that the Applicant initially denied the allegations but eventually admitted that he had slept with the learners in 2012. She referred to page 48 of the bundle, affidavits deposed by the learners after they had testified at the disciplinary hearing, and testified that she had not seen the affidavits previously. She denied that the learners were forced to testify. She concluded by saying that she had no vendetta against the Applicant and that in fact they had a good relationship.
Applicant’s evidence
The Applicant led the evidence of five witnesses, Duduzile Pauline Mdlalose (Masengemu), Sekwanele Mdlalose, Amanda Khumalo, Nonkululeko Hadebe (Bella) and the Applicant.
31. Masengemu testified that she is employed as a domestic worker and that Sekwanele is her daughter. She denied that she went to Ingula High School to report that her daughter was not doing well at home and in her school work and asked the principal to investigate allegations of a sexual relationship involving her daughter and the Applicant.
32. In October / November 2013 Ms Shabalala called her and asked if she was at home. She (Shabalala) then came to her home in her vehicle and took her to the Principal’s office. The Principal and Shabalala showed her statements that were written by Amanda and Sekwanele. They told her that the statements had already been submitted to the Department of Education and that the department needed letters from the parents of the learners to support the statements.
33. She referred to the letter contained on page 39 of the bundle and stated that they also told her to write the letter appearing on that page and state that she had approached the school with a complaint. She asked them if that was not going to get her into trouble and when they assured her that it was not, she then wrote the letter.
34. Shabalala called her again and thereafter fetched her and Sekwanele and took them to a hearing. She (Masengemu) confirmed that her daughter was transferred to Klipriver High School after the learners at Ingula High School had written her name in the toilet. Sekwanele was always crying and saying this case is wrong and that Ms Sibisi and Ms Shabalala had told her and Amanda to write the statements.
35. Sekwanele attended school for about one or two months before she stopped altogether. She was not coping with her school work. She referred to page 49 of the bundle, a client referral letter from Watersmith Clinic, and testified that she had taken Sekwanele at one stage to a clinic and thereafter to the hospital after she had taken drugs in her room at home.
36. During cross examination she conceded that she did not ask to speak to her daughter Sekwanele, to confirm the allegations contained in her (Sekwanele) statement before she wrote her own statement at the Principal’s office. She further conceded that when her daughter subsequently told her that the statement was not true, she did not go back to the school to report to the Principal and Ms Shabalala what her daughter had told her or to retract her own statement, instead she accompanied her daughter to the hearing and also did not tell anyone there what her daughter had said to her.
37. She also conceded that her daughter did not get the laptop that she (Sekwanele) had claimed when she (Masengemu) spoke to her about the allegations, Ms Shabalala had promised her.
38. Sekwanele testified that she has a child who is nine months old and that she is living in Watersmith with her siblings. She is currently unemployed and not doing any studies. She attended school at Ingula High School in 2013 and then transferred to Klipriver in 2014.
39. Her mother did not come to the school to make a complaint. The Principal called her mother to the school in relation to the letters that she and Amanda had been told to write. Ms Shabalala and Ms Sibisi sent a grade 8 learner to call her from the classroom whereupon she was told to write the letter contained on page 40-41 of the bundle, at the Principal’s office. They said the letter was going to be read at the school assembly.
40. They asked her if there was any teacher who had proposed love to her and also if she was in a relationship with a school boy. Her response was “no” to the first question and “yes” to the second question. They then told her that there was a teacher who was sleeping with learners and then asked her to write a letter which was going to be used to alert other learners. They told her that they would do anything for her. They also told her that they would tell her what to write.
41. She asked them if this was not going to put her into trouble and when they assured her that it would not and that it would help to alert other learners, she then wrote the letter. They told her that the teacher in question was Mr Mtshali, the Applicant. What she wrote in the letter did not take place and she was worried that it was a lie.
42. Shabalala told her that she would arrange a place for her to attend school at Klipriver and she would purchase a laptop for her at the end of the year. She was happy that she was going to attend a school in town. It was towards the end of the year when she wrote the letter. She told Ms Shabalala at the beginning of the following year that she was no longer prepared to go along with the arrangement when Shabalala told her that parents were going to be involved.
43. She lied about everything in the letter and even when she testified under oath at the disciplinary hearing she was only 13 years old, very young and the teachers’ had told her to write the letter. She denied that Shabalala and Sibisi ever came to the classrooms to talk to female learners.
44. After the disciplinary hearing she was transferred to Klipriver because the learners had written her name in the toilet. She did not finish school at Klipriver because Ms Shabalala no longer gave her a coupon for the bus and had paid only half of her school fees.
45. She felt bad about lying about the incident and that she did not get what Ms Shabalala had promised her. She felt that she had been used and at home she took drugs. The evidence that she gave at the hearing had been rehearsed and Shabalala had told her what to say.
46. During cross examination she conceded that Lihle from Labour Services had spoken to her before the hearing as well as social workers and that the interviews took place before the hearing was conducted. She further conceded that she did not open the case and explained that it was because everything was a lie.
47. Amanda Buthelezi testified that during 2012-2013 she was doing grade 10 at Ingula High School and the Applicant taught history, the class consisted of 50 learners.
48. Ms Shabalala called her to the Principal’s office where she found the Principal, Ms Sibisi and Bell. Shabalala then told her that a parent had come to report that she (Amanda) and Bella were fighting on the road. She denied that she was involved in a fight and said that did not have a problem with her. Shabalala and Sibisi then said that the parent had also said that they were fighting over Mr Mtshali (Applicant).
49. Bella then left the office whereupon Shabalala and Sibsi asked her if she was aware of any sexual relationship between learners and the Applicant. She told them that the sexual relationship she was aware of was between a learner and a teacher, Mr Mthethwa. Bella was upset when she left the office and as she was leaving she stated that she did not want to get involved in these things and according to (Amanda) she (Bella) was referring to the alleged fight over a teacher (Applicant).
50. After Bella had left, the Principal also left. Shabalala and Sibisi then asked her to write a letter which was going to be used to alert the learners about the teachers who were sleeping with learners. They said that the letter was going to be used internally, within the school. They also said that it would not reflect her name. The letter was never read at school to the learners. Ms Shabalala told her what to write and everything that she wrote was a lie.
51. She did not tell her parents about the letter but when she spoke to her friend, Mbali, she (Mbali) discouraged her into continuing with this arrangement stating that she had also been approached. After she had spoken to Mbali she then wrote another letter stating that what she had done was wrong and that she was no longer prepared to continue with the arrangement. Ms Shabalala tore the second letter. She (Shabalala, Sibisi and the Principal) then promised to pay for her school fees, buy stationary and purchase a laptop for her. She did not go to the police regarding the allegations against the Applicant and Shabalala and Sibisi told her to cry at the hearing so that allegations would appear to be serious.
52. She conceded during cross examination that she did not inform her parents even when she went to the disciplinary hearing at which stage it was apparent that the matter was getting serious. She admitted that she was 18 years old in 2012-2013 and that she was repeating grade 10.
52. She confirmed that the document appearing on page 48 of the bundle, is her affidavit and that she had given it to the Applicant’s representative after she had signed it because he had approached her. She was with her friends, Njabulo Thusi and Nkululeko Majozi when she signed the affidavit. She was not aware whether the Applicant did open a case against her or against Ms Shabalala after she had signed the affidavit.
53. Nonkululeko Hadebe (Bella) testified that she was attending Ingula High School and doing grade 11 in 2013, She was present at the meeting which took place at the Principal’s office when Shabalala and Sibisi questioned them (Amanda and her) about a fight which had allegedly taken place between them. She denied the allegations, got upset and left the office.
54. Shabalala and Sibsis called her again to the office later, around 12h30, where they told her in the presence of the Principal that the meeting they had earlier was not about a fight but it was about Mtshali (Applicant) being the father of her child. She denied that Mtshali is the father of her child and told them that she knew who the father was. She told her mother and grandmother about what the teachers had said to her. She concluded her testimony by stating that she did not testify at the disciplinary hearing.
55. Mtshali (Applicant) testified that in 2013 he taught business studies in grade 10 (b), 11 (b) and 12 (b) at Ingula High School. He started to teach at Ingula in September 2003. In 2013 there were 7 male teachers at the school. He was in the school Management Team together with Ms Shabalala and Ms Sibisi and he was an HOD for commerce. They were not very close and related to one another as colleagues. The Principal of the school was Mr Z. R Khumalo. They were also not that close and only met at the meetings.
56. Mrs Mavimbela was responsible for sexual harassment cases but she was not part of the School Management Team. He did not know Sekwanele Mdlalose until he saw her name on the charge sheet when he was preparing to lodge an appeal against his dismissal. He also saw Amanda Buthelezi’s name which was mentioned along with Sekwanele’s name on the charge sheet. He denied that he called them and slept with them at Hlalanathi Lodge. He further denied that he knew Hlalanathi Lodge.
57. He testified that he was not part of the School Management Team meeting on 22 November 2013 during which he allegedly admitted that he had a sexual relationship with 2 learners in 2012. He explained that an exercise book would normally be circulated before a meeting was held and that the minutes would be written in the same book. This procedure was not followed in relation to the meeting which was allegedly conducted on 22 November 2013 and that the minutes of that meeting were written on an exam pad.
58. He stated that he discovered in the middle of 2013 that the Principal of Kikintalock, a neighbouring school, about 15km from Ingula, was supplying food to the school (Ingula). According to his knowledge teachers are not allowed to have tenders and he wondered how an educator from another school would get involved in a feeding scheme of another school. He then confronted his school Principal about the matter and noticed that the Principal (Khumalo) was uncomfortable when he approached him. He stated that he believes that the allegations emanate from that incident.
59. He further testified that he taught Bella and that he heard that she had been questioned about him and the child that she was carrying. Bella told him about this when they met in town after he had received the charge sheet which contained certain names of which Bella was one of them. He stated that Mrs Mavimbela was appointed to handle sexual harassment cases, but the Principal told Ms Shabalala and Ms Sibisi to interview the learners because the whole issue was a conspiracy and that they all colluded against him.
60. During cross examination, he stated that he was not aware if the Principal was charged with corruption relating to the feeding scheme but confirmed that he had reported the matter to Moses, an official from the Department of Education, school supplies. He was the only male HOD and spent most of his time alone and the female counterparts were not comfortable with that. He explained that the learners were coached and that they also said that they were given papers to rehearse. He confirmed that his representative conducted a research to establish where the learners were staying and then brought them to the arbitration hearing after his (Representative) had arranged for them to make affidavits, without involving the parents.
Closing Arguments
Respondent’s Argument
61. Ms Dumisa argued that the Applicant committed a serious misconduct and that a section 17 charge that makes dismissal mandatory.
62. She argued that the principal testified that Sekwanele’s mother came to the school to report that her daughter had been sexually abused by the Applicant and also wrote a letter to this effect whereupon Ms Shabalala and Ms Sibisi were asked to investigate the allegations.
63. They spoke to the learner (Sekwanele) who admitted everything and also gave the name of other learners who had a sexual relationship with the Applicant. Her statement is contained on page 40-41 of the bundle.
64. Officials from Social Development and Labour Section held several meetings with the learners before the disciplinary enquiry was conducted. The Applicant himself admitted at the SMT meeting on 22 November 2014 that he did have a sexual relationship with Sekwanele in 2012.
65. Sekwanele had given shabalala and Sibisi the name of another learner with the surname Kubheka. They then started to interview leaners and telling them about the danger of having a sexual relationship with educators. One learner, Amanda, came forward and also wrote a statement to this effect.
66. She argued that the learners who now claim that they were coersed by Ms Shabalala to lie against the Applicant, did not inform the officials from Social Development and Labour Section when they had all the opportunity to do so at the meetings that were conducted before the disciplinary enquiry. In the disciplinary hearing they did not inform the employer representative.
67. They testified at the disciplinary hearing and even broke down to show the effect of the abuse they had endured, because they were telling the truth. The evidence at the arbitration that the Principal promised to buy them laptops is clearly a fabrication.
68. Amanda testified that she had been accompanied by the Applicant’s Representative Mr Vilakazi to the Police station to withdraw her statement. Both learners deposed similar affidavits in the absence of their parents.
69. The Applicant failed to prove his conspiracy theory and his claim that the Principal had committed corruption in relation to the supply of food to the school.
Applicant’s Argument
70. Mr Vilakazi argued that the Respondent failed to prove its allegations against the Applicant. Ms Sibisi was not called to testify which proves that there was a conspiracy between the Principal and Ms Shabalala against the Applicant. Only the Principal and Ms Shabalala testified on the minutes of the meeting contained on page 43 of the bundle.
71. The letter from Sekwanele’s mother came after the investigation and the SMT meeting. The parent reported the matter on 14 November 2013 and it took five days thereafter for Ms Shabalala and Ms Sibisi to conclude their investigation. The matter was only reported to the District on 14 January 2014 and yet they say that it was urgent.
72. The investigation was conducted in November. Ms Shabalala and Ms Sibisi are SMT members and the learners were writing examinations. It is intriguing where there would have been time for such investigation. If the investigation was conducted it is further intriguing why it did not affect the learners as they managed to make it to the next class the following year.
73. Ms Shabalala, the social workers and the personnel from labour relations office never advised the learners and parents to go and open a case.
Analysis of Evidence and Argument
74. Section 33(1) of the Constitution of the Republic of South Africa states that everyone has the right to administrative action that is lawful, reasonable and procedurally fair. Item 2(1) of the Code of Good Practice: Dismissal, provides that dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure.
75. In the present case the Applicant is contending that the Principal of Ingula High School, Mr Robert Khumalo colluded with the Deputy Principal, Deborah Shabalala against him. His further contention is that emanating from that conspiracy, Robert and Deborah coerced the learners to tender false evidence against him.
76. He attributes the conspiracy to the fact that he allegedly reported and linked the Principal to the corruption relating to the supply of food to Ingula High School by a Principal of a neighbouring school, Kikintalock. The Applicant did not lead any evidence to substantiate this claim which, according to him precipitated the false allegations and the ultimate dismissal.
77. The operation of our law has a clear dermacation between facts and perceptions, and in the absence of any evidence to substantiate this claim, I find no bases on which it can be said to be true that the Applicant was dismissed as a result of a collusion and a conspiracy as alleged.
78. Having regard to the evidence presented, the credibility of the witnesses, the arguments presented, the nature of the Applicant’s work and the Respondent’s operations, it is my finding on a balance of probabilities that the Respondent’s version is more probable than that of the Applicant.
79. The Applicant and his witnesses deliberately and consciously set out to lie about the events which gave rise to the dispute and to mislead the tribunal.
80. It is highly improbable that Masengemu (Sekwanele’s mother) would have written about the complaint based on the learner’s statement and what the Principal and Ms Shabalala told her without confirming the allegations with her daughter, who was present at the school when she wrote the letter.
81. Sekwanele and Amanda testified at the disciplinary hearing and gave detailed and compelling evidence which no reasonable decision maker would ignore. At arbitration they testified that they were coerced and lured into making false allegations against the Applicant and hence they changed their statements.
82. Bella was not present at the disciplinary hearing nor did she testify. She surfaced at arbitration to testify on behalf of the Applicant. No weight can be attached to her evidence since the aspects of her testimony i.e altercation between Amanda and her in the street and the paternity issue relating to her child, are not relevant and will not assist the tribunal in the determination of the matter.
83. Neither the Applicant nor the learners reported to the department that they (learners) were forced to falsely implicate the Applicant. No case was registered with the SAPS to this effect. The officials from Social Development and Labour Relations were not informed about these serious allegations, instead the learners were lured to the police station to change their statements, without their parents being involved in the process.
84. In these circumstances it is my finding on a balance of probabilities that the dismissal was substantively fair.
85. In the matter of Old Mutual Life Assurance Co SA Ltd v Gumbi (2007) 28 ILJ 1499 (SCA), Mr Gumbi had been dismissed following a disciplinary enquiry in which he was found guilty of misconduct. Mr Gumbi challenged his dismissal in the High Court on the basis that the enquiry had been held in his absence and that, as a result, he had been denied a hearing before the decision to dismiss him was taken. The Court found that Mr Gumbi had wilfully and voluntarily excluded himself from the disciplinary hearing and that his dismissal was consequently fair. In an appeal to the full court the majority reversed the decision of the court a quo. The employer was granted special leave to appeal to the Supreme Court of Appeal. The Supreme Court of Appeal (SCA) noted that an employee's entitlement to a pre-dismissal hearing is well recognized in our law, having as its source the common law or a statute which applies to the employment relationship between the parties. In recognizing this right our law is consistent with international law relating to pre-dismissal hearings. Having considered the provisions of the Constitution 1996, the LRA 1995, judicial authority and international law, the SCA held that the right to a pre-dismissal hearing imposes upon employers nothing more than the obligation to afford employees the opportunity of being heard before employment is terminated by means of a dismissal. Should the employee fail to take the opportunity offered, in a case where he or she ought to have, the employer's decision to dismiss cannot be challenged on the basis of procedural fairness. The SCA found that the employer had offered Mr Gumbi a chance to defend himself against the allegations of misconduct which led to his dismissal. He did not take the opportunity and, on the facts, it was clear that the employee intended to prevent the hearing from being held and that his absence was not justified. The SCA was accordingly satisfied that the employer had not acted procedurally unfairly in continuing with the hearing in the employee's absence and dismissing him for the misconduct of which he was found guilty. The employee and his representative were the only persons to blame for his absence from the hearing.
86. The Applicant knew about his disciplinary hearing and made an election not attend the disciplinary hearing. Therefore, he was afforded an opportunity to be heard before a decision was made to terminate his contract but he unfortunately elected not to attend his disciplinary hearing. The dismissal on procedural grounds is fair.
Award
87. The dismissal of the Applicant, D Mtshali was both procedurally and substantively fair. The Applicant is not entitled to any relief.
T.P Cele ( Panelist)