ELRC97-16/17GP
ELRC97-16/17GP
Award Date:
9 February 2018
Case Number: ELRC97-16/17GP
Province: Gauteng
Applicant: NAPTOSA OBO MAKHAPHELA KHAYALETHU STEPHEN
Respondent: 1st Respondent SOUTH WEST GAUTENG TVET COLLEGE and 2nd DEPARTMENT OF HIGHER EDUCATION AND TRAINING
Issue: Unfair Dismissal - Misconduct
Venue: South West Gauteng TVET College (SWGC) in Molapo, Soweto
Award Date: 9 February 2018
Arbitrator: Themba Manganyi
Panellist: Themba Manganyi
Case No.: ELRC97-16/17GP
Dates of Hearing: 29 May 2017, 04 August 2017,
11 September 2017, 19 September 2017,
30 October 2017 & 17 January 2018
Date of Arguments: 24 January 2018
Date of Award: 09 February 2018
In the Arbitration Hearing between
NAPTOSA OBO MAKHAPHELA KHAYALETHU STEPHEN APPLICANT
and
SOUTH WEST GAUTENG TVET COLLEGE
DEPARTMENT OF HIGHER EDUCATION AND TRAINING 1ST RESPONDENT
2ND RESPONDENT
Applicant’s representative:
Mr Tumi Madika
Tel: 011 486 1256
Fax: 011 486 2899
E-Mail Address: tumim@naptosa.co.za / khaps240@gmail.com
Respondent’s representative: Mr Tshepo Mahasha
Telephone: 011 141 1000
Fax: 086 665 6133
mahashat@swgc.co.za
DETAILS OF HEARING AND REPRESENTATION
1. This is an arbitration award issued in terms of section 138(7) of the Labour Relations Act, as amended (“the LRA”). This dispute was referred for arbitration to the Education Labour Relations Council (“the Council”) on 17 March 2017.
2. The arbitration proceedings were heard on 29 May 2017, 04 August 2017, 11 September 2017, 19 September 2017, 30 October 2017 and 17 January 2018. These proceedings were mainly held at South West Gauteng TVET College (SWGC) in Molapo, Soweto and on 11 September 2017 they were held at the SWGC in Dobsonville Campus.
3. Mr Tumi Madika (“Madika”), an official from Naptosa, represented the applicant, Mr Stephen Khayalethu Makhaphela. Mr Tshepo Mahasha (“Mahasha”), the Labour Relations Officer, represented both the respondents, South West Gauteng TVET College and the Department of Higher Education and training.
4. The parties submitted bundle of documents into the record and they were accordingly marked. An inspection in loco was conducted on 11 September 2017 at the Dobsonville Campus. Parties were allowed to call witnesses, cross-examine and re-examine them. At the end of the proceedings, parties agreed that they will submit closing arguments in writing on or before 24 January 2018. I have received the closing arguments and they have been considered when writing this award.
PRELIMINARY ISSUES BY THE APPLICANT
Legal representation application
5. On 29 May 2017, Mr B. Moshoeshoe (an Advocate from Arbitration Foundation of Southern Africa) launched a viva voce legal representation application to represent the applicant. Briefly, he submitted that the matter was complex, the chairperson of the disciplinary enquiry stated that the matter would raise the issue of public interest and that the respondents are represented by a legally trained person.
6. In response, Mahasha argued that the applicant did not show how complex was the matter, there are no questions of law that will be raised and if legal representation were to be allowed, there would be no comparative ability between the representatives as he was not legally trained.
Ruling
7. This is an alleged unfair dismissal dispute related to the applicant’s conduct. In terms of the Rule 25.4.2 of the Council’s Rules, parties are not entitled to be represented by a legal practitioner unless the panellist concludes that it is unreasonable to expect a party to deal with the dispute without legal representation, after considering:
i. the nature of the questions of law raised by the dispute;
ii. the complexity of the dispute;
iii. the public interest; and
iv. the comparative ability of the opposing parties or their representatives to deal with the arbitration of the dispute.
8. It was my considered view that there was no question of law that would be raised in this dispute and the dispute was not complex. The submissions that the disciplinary enquiry chairperson stated that the dispute would raise public interest could not be substantiated. On the comparative ability of the representative, Mahasha was studying towards law degree and therefore it cannot be said that he was legally trained as alluded to by Moshoeshoe. I have also considered that the applicant was a member in good standing of a trade union. It was on these bases that legal representation was denied.
Double jeopardy
9. Madika submitted on behalf of the applicant that the applicant was charged twice for the same misconduct and that the precautionary transfer / suspension was irregular. The charges preferred against the applicant did not comply with the employer’s disciplinary code. The Appeal Board process was not adhered to by the respondent. Mr Nkosi (the principal) ignored the ruling of the initial disciplinary hearing chairperson.
10. Mahasha argued that during the first disciplinary hearing, the applicant’s representative raised a preliminary issue in that the principal did not have the right to discipline the applicant. He referred to page 4 of Bundle E under “ruling” and stated that the chairperson did not have the powers to dismiss the case. Therefore, the respondent reinstated the charges. The case was heard by a new person who made a decision after hearing the facts of the case.
Ruling
11. I ruled that this issue need to be tested through the leading of evidence during the arbitration proceedings.
Recusal of the respondents’ representative
12. Madika applied for the recusal of the respondents’ representative (Mahasha) arguing that Mahasha colluded with the initiator and the disciplinary hearing chairperson as per the e-mails on page 8 to 16 of Bundle E.
13. Mahasha challenged the authenticity of the e-mails and stated that these issues were not raised during the disciplinary hearing and they were also not raised on referral form (LRA Form 7.11) and during the pre-arbitration meeting. He submitted that the issue about collision must be put to test through evidence. He argued that he was appointed by the respondents to represent them as the respondents had confidence in him. There was no link between the chairperson’s finding and the association that he has with the chairperson.
14. Madika replied by stating that the applicant was not represented by a legal representative during the pre-arbitration meeting and that the minutes ought to be augmented. He stated that the e-mails were authentic and he was willing to provide sources if the need arose.
Ruling
15. I ruled that it was the respondents’ obligation to prove that there was no collision when they lead their evidence. On the issue of the respondents’ representative recusal, I ruled that there was nothing preventing Mahasha in terms of the Council’s Rules to represent the respondents. Mahasha had the locus standi to represent the respondents.
PRELIMINARY ISSUE BY THE RESPONDENT
Discovery of a document
16. Mahasha made an application to introduce the statement of one Mary Matona into evidence and he stated that the purpose of this statement was to prove that there was a pattern in the applicant’s behaviour.
17. Madika objected to the introduction of this statement and stated that it was part of the conspiracy theory that he earlier alluded to. He also stated that this statement was not made available during the disciplinary hearing. He further stated that these allegations are made by interns who want to secure positions with the college.
18. In his response, Mahasha stated that there was no evidence regarding any collusion and that there would be no prejudice that the applicant would suffer if this statement was introduced into the record.
Ruling
19. At this stage, I was not even addressed on the opening statements. Therefore, I did not find it improper to allow the introduction of this statement into evidence. However, I cautioned the respondents that the statement would need to be spoken to in order for its veracity to be tested.
ISSUES TO BE DECIDED
20. The dismissal of the applicant is not in dispute. I am therefore required to determine the procedural and substantive fairness of the applicant’s dismissal. In the event that I find that the dismissal was unfair, I will be required to determine the appropriate relief. The applicant seeks reinstatement as a relief.
BACKGROUND
21. The applicant was employed on 01 January 2005. At the time of his dismissal, he held a position of Student Support Services Manager and he was attached to the South West Gauteng TVET College. The applicant’s dismissal was occasioned on 19 October 2016 after the respondent preferred the following charges against him:
Charge 1: Sexual Harassment
Charge 2: Abuse of position / powers
Alternative charge 2: Contravention of paragraph 3.12 of the SACE Code of Professional Ethics
Charge 3: Breach of the South African Council of Educators Code of Professional Ethics paragraph 3 [3.8]
22. After the dismissal sanction, the applicant appealed this decision and the appeal outcome was handed down on 08 December 2016 upholding the dismissal. The applicant sought reinstatement as a relief if I find in his favour.
SUMMARY OF EVIDENCE AND ARGUMENTS
23. The respondent called six witnesses to testify on its behalf and they all testified under oath. The LRA requires me to issue an award with 'brief reasons'; accordingly, what follows hereunder is not an exhaustive survey of the evidence and argument but is, rather, merely a short summary of the matters relevant to my decision.
Respondent’s case
24. Ms Bongiwe Modiseemang (“Modiseemang”) testified that she is employed at the SWCG Dobsonville Campus at the Disability Unit since 24 June 2013. She stated that the applicant was her lecturer when she was a student at the college in 2007. She averred that the applicant tried to kiss her when she went to fetch her bag from him during her time as a student. She avowed that on 07 March 2015, during the SRC induction camp, the applicant called her to his room and she found the applicant alone. The applicant asked her if she still did not want to give him her “biscuit”. Then the applicant started fondling her and touching her private parts and breasts. The applicant threatened her that he would change the requirements of the advertised posts in order for her not to qualify. The Monday thereafter (09/03/2015), she consulted a doctor.
25. She stated that the other incident occurred on 03 December 2015 at the Dobsonville Campus. On this day, she was called to assist a student at the reception. When she got to the reception, she went to the bathroom. When she exited the bathroom, the applicant came out of an office and he started fondling her and touched her breasts. The applicant requested her for a trip authorization sheet and she told him that she no longer worked with trip authorization sheets. The applicant then pulled her into the Campus Manager’s office. There was no one in the Manager’s office. The applicant continued fondling her and asked her if she still did not want to sleep with him. The applicant said that she had beautiful breasts and a nice butt. When she left the applicant, she told one Promise what transpired and Promise asked her why does she not report the matter. She told Promise that she was afraid because no one would believe her as she did not have proof.
26. Under cross-examination, she when asked what was her understating of continuously harassed. She stated that it meant that he sexually harassed her more than once. She conceded that she did not have the WhatsApp message in which the applicant invited her to his room on 07 March 2015 and that no one saw that WhatsApp at the camp, but she saw the message to Promise during the following Tuesday when she went back to work. She stated that when the applicant invited her to his room it was around 15h30 and she would not say if anybody saw her getting into the applicant’s room. However, she submitted that Kola and Mola must not be believed over her, because it was not the first time that the applicant harassed her. She reiterated that the applicant started harassing her since she was a student back in 2007. On whether she made the applicant aware that she was not comfortable with what he was doing, she said the applicant would have realized that she was not comfortable as she was crying. She stated that the applicant’s witnesses who will testify that the applicant did not touch her inappropriately would not be telling the truth because they were not there when it happened.
27. Regarding the incident of 03 December 2015, she reaffirmed that the applicant touched her breasts, pinched her and pulled her into an office. When put to her that it was not possible for the applicant, considering his stature, to act in the manner that she described in full view of students. She said that the applicant was used to act in that manner even when she was still a student that was how the applicant was conducting himself. She restated that the applicant would always tell her that if she does not want to give him her vagina she would not get the posts / position. She stated that the applicant never conversed with her about work related issues. She confirmed that she was the one who initiated the WhatsApp conversation with the applicant. In her message, she was asking the applicant about the students’ accommodation. She was adamant that during the WhatsApp conversation where she asked the applicant if he wanted sex, the applicant never said “tjo”. On the issue of the medical certificate, she stated that she did not know that the doctor was not registered and that the doctor wrote what she told him.
28. Mr Sbonelo Mdletshe (“Mdletshe”) stated that he went to the Dobsonville Campus on 03 December 2015 to enquire about people who had a reading problem. Modiseemang was called to come and assist him. When Modiseemang came, she went to the bathroom. When she came out of the bathroom, they went to Ms Statu’s office. The applicant came and started touching Modiseemang’s breast. They (Modiseemang and the applicant) went into Statu’s office and held a conversation, but he could not hear what they were talking about. Mdletshe waited outside the office. He went into the office when the applicant left. He told Modiseemang the reason of his visit, but she said she could not help him as she was emotional. She took his numbers and promised him that she will call him.
29. During cross-examination, he was asked if he was coerced to write the statement on page 29 of Bundle B and he stated that he was not coerced. He wrote the statement and gave it to Mahasha. When challenged on the access control register of 03 December 2015 that he was not at the college on that day, he submitted that he did not sign the register on that day. However, he reaffirmed that he was at the college on 13 December 2015. He confirmed that he witnessed the applicant touching Modiseemang.
30. On re-examination, he stated that it was not always that people signed when they enter the college premises.
31. Mr Solo Makhonjwa (“Makhonjwa”) stated that he was the chairperson of the applicant’s disciplinary hearing. He confirmed that page 4 - 23 of Bundle A was his report emanating from the applicant’s disciplinary enquiry. He explained the process that he followed in the disciplinary hearing and he stated that he applied all the eight golden rules on how to conduct a disciplinary hearing. He refuted the allegations that suggested that he colluded with Mahasha and the Principal and that he changed the final written warning sanction into a dismissal sanction. He stated that the issue of double jeopardy was never raised with him during the disciplinary hearing. He confirmed that he knew Mahasha from the Department of Justice when they were colleagues.
32. Under cross-examination, he stated that he was appointed by Schlemmer to preside over the applicant’s disciplinary hearing. He denied the notion that he was biased. He denied that the WhatsApp messages were just part of the evidence that was presented before him, but they were not the only evidence that he considered to arrive at his decision. He also confirmed that the e-mails on page 8 of Bundle E were between him and Mahasha.
33. Ms Promise Mashiane (“Mashiane”) submitted that on 03 December 2015 she was at Dobsonville Campus to access the internet. She stated that Modiseemang came to her and told her that the applicant pulled and touched her breasts. She said Modiseemang told her that she was afraid to report the applicant’s conduct because she did not want to lose her job. She further stated that Modiseemang was emotional.
34. Under cross-examination, she admitted not to have witnessed the applicant sexually harassing Modiseemang, but she believed what Modiseemang told her. She confirmed that Modiseemang showed her the WhatsApp conversations between her (Modiseemang) and the applicant.
35. Mr Siyabonga Salman (“Salman”) averred that he was a Security Officer at Dobsonville Campus. He submitted that students do not sign in and out at the gate, because they produce their student cards. Only visitors sign in and out.
36. Under cross-examination, he stated that former students have to sign the access control register as they are considered to be visitors.
37. Ms Busisiwe Statu (“Statu”) stated that she was the Dobsonville Campus Manager. She stated that students produce their student cards to gain access to the college and visitors sign the access control register. She submitted that there was a problem with the access control card system during 2015. She also submitted that old students would produce their old student cards and they would be allowed access and at times old students would not sign in.
38. During cross-examination, she said that it was not management instruction to allow old students into the campus without signing the access control register. However, security personnel often allowed them in.
Respondent’s closing arguments
39. The respondent’s representative submitted his closing arguments in detail. He also submitted detailed case law and comments from labour law authorities in support of his submissions. All of this was taken into consideration in the writing of this award. For the sake of brevity this will not be repeated as they are a matter of record. It was taken into consideration in the writing of this award.
Applicant’s case
Seven (7) witnesses (including the applicant) testified for the applicant and they all testified under oath. Their evidence in summary was the following:
40. Mr Stephen Khayalethu Makhapela (“the applicant”) testified that he used to teach Marketing and Consumer Behavior and Modiseemang was one of his students. He stated what Modiseemang was alleging never took place according to his knowledge. He submitted that he could not remember the incident where he allegedly took Modiseemang’s bag as it happened a long time ago. He testified that during the SRC induction camp, the IEC officials arrived in the afternoon around 14h20 – 14h30 and he took them into his room. He invited Kula to join the meeting. He submitted that they were in the meeting until 18h20. He denied that he has touched Modiseemang inappropriately. He said that that incident never happened. When asked why would Modiseemang say that he harassed her. He said that he cannot speak for her. He testified that he was at the Dobsonville Campus on 03 December 2015 to collect a car. He met Modiseemang in the PA’s office and not at the reception as alleged. He waited for Modiseemang to make her a trip authorization. He denied having touched Modiseemang on that day or any other day. He further denied having made any sexual statements to her.
41. He submitted that he was not responsible for recruitment and as such, he could not change qualifications for a post. He averred that he did not agree with the contents of the WhatsApp conversation because he believed that they were tampered with. He submitted that when Modiseemang sent her a message at 11:49 on 02 February 2016 (page 28 of Bundle B), he responded at 11:49 or 11:50 by saying “Tjo” when asked if he wanted sex. He stated that the message on page 31 of Bundle B is a social media conversation that he got and he forwarded it to Modiseemang. When he sent this message, she did not complain that the message was offensive. He said he could not interpret the meaning of the picture on page 32 of Bundle B. He further said that there were no sexual advances on the picture on page 33 of Bundle B.
42. He also submitted that he found it necessary to validate the doctor’s credentials that Modiseemang consulted because he was wrongfully accused and when he saw the medical certificate, he could see it was a cut and paste.
43. Under cross-examination, he disagreed that the statement that “we are living in the world where people are free to touch each other’s private part but not phones because they are private” has sexual connotations. He said that he sent her this message to show her how cellphones have turned to be private and that he did not see anything wrong in sending her this message. He said when he sent the message that “uyandirhalela” he meant that she envied him as a manager and this was informed by the conversation that they had earlier which continued on WhatsApp. He submitted that he thought Modiseemang’s motives to get him dismissed was because someone has told her that he did not shortlist her. He admitted that the statements on page 1 and 2 of Bundle D were typed by him.
44. Mr Hunisani Mani (“Mani”) testified that he was the SRC President and his testimony was in relation to the students’ protest. He stated that the students wanted the applicant to be reinstated because there was no one acting in the applicant’s position.
45. Under cross-examination he stated that students were protesting because they wanted a person to be in that position.
46. Mr Vusimzi Kula (“Kula”) stated that he was working at the Student Support Services Department at SWGC TVET College since 2008 and confirmed that the statement on page 1 of Bundle D was his statement. He said that he was part of the meeting at the Alpha Conference Centre on 07 March 2017 where they discussed the College’s SRC constitution with the IEC officials in the applicant’s room. He stated that people that were present at the meeting was himself, the applicant and three IEC officials. He denied the allegations that the applicant was ever left alone in his room nor did Modiseemang ever came into the applicant’s room.
47. Under cross-examination, he said that the applicant told him that there were allegations against him that he sexually harassed Modiseemang and he (the applicant) requested him to write a statement. He confirmed that the applicant typed the statement.
48. Ms Kgomotso Nkoane (“Nkoane”) stated that she is a Manager Registrations at the Health Professional Council of South Africa (HPCSA). She confirmed that she issued the letter on page 9 of Bundle D to the applicant and further stated that Dr S.A Raymond was not registered to practice medicine in South Africa. She was referred to page 27 of Bundle B and she stated that the medical certificate was not valid because the doctor that issued the medical certificate does not appear on the registration of the HPCSA. Therefore, the medical certificate was not valid.
49. Under cross-examination, when asked if a patient would know whether a doctor was registered with the HPCSA or not before consultation, she stated that there are road shows that are conducted by the HPCSA to enlighten the public.
50. Mr Lehlohonolo Sithebe (“Sithebe”) testified that he was employed at the SWGC TVET College as the Acting Information Communication Technology (ICT) Manager. He essentially testified about the authenticity of the e-mails contained from page 8 to page 16 of Bundle E. When asked if the e-mail conversation was edited or not, he stated that from what he sees on the document was the e-mail conversation that was cut and pasted on the word document, but it was not edited and he stated that this was because of the line spacing in the conversation.
51. Under cross-examination, he stated that in order for one to validate the authenticity of the e-mails, one has to look at the original e-mail from the server.
52. Ms Dian Mola (“Mola”) testified that she was an IEC employee as an Outreach and Training Officer and that she was part of the team that assisted the SWGC TVET College with the SRC induction process on 07 March 2017. She stated that the IEC people arrived at the Alpha Conference Centre after lunch. She said that there were three people from the IEC and four from the college, seven in total. She further stated that she did not know Modiseemang. She submitted that it was not possible that the applicant would have sexually harassed Modiseemang during the time that is alleged.
53. Under cross-examination, when pressed about the times that appear on her statement, she said the times were agreed upon between herself and the applicant after some discussions. She stated she wrote the statement and the applicant typed the statement.
54. Ms Gugu Ndlovu (“Ndlovu”) stated that she was a Senior Lecturer at the Roodepoort Campus. She averred that she was part of the selection committee for the shortlisting meeting held on 15 September 2015 as per Bundle D page K2. She stated that the job requirements were drafted by the HR Department. She further stated that it would not have been possible for the applicant to change the qualification requirements of the position during the shortlisting meeting, but she would not know what happened prior to the shortlisting meeting.
55. Under cross-examination, she conceded that part of the minutes of the shortlisting meeting were not truthful. She could not comment whether, during the period of this meeting, Modiseemang had N6 or not.
Applicant’s closing argument
56. The applicant’s representative submitted its closing arguments in detail. For the sake of brevity this will not be repeated as they are a matter of record. It was taken into consideration in the writing of this award.
ANALYSIS OF EVIDENCE AND ARGUMENTS
57. This is an arbitration award issued in terms of section 138(7) of the LRA with my brief reasons. All the evidence and the closing arguments as submitted by the parties were considered when writing this award.
58. Section 188 of the LRA stipulates that a dismissal that is not automatically unfair, is unfair if the employer fails to prove that the reason for dismissal is a fair reason related to the employee’s conduct and that the dismissal was effected in accordance with a fair procedure. In section 192 of the LRA, it is further stipulated that if the applicant has established the existence of a dismissal the burden of proof, on a balance of probabilities that the applicant’s dismissal was procedurally and substantively fair, rests with the respondent. In making that determination, I must take into account the provisions of the Code of Good Practice: Dismissal. I am required to make "a moral or value judgment as to what is fair in all the circumstances" (See in this regard Metro Cash & Carry Ltd v Tshehla (1997) 1 BLLR 35 (LAC); and Numsa v Vetsak Co-Operative Ltd and Others (1996) 3 All SA 311 (A)).
59. The charges which were brought against the applicant were:
Charge 1: Sexual harassment
It is alleged that between January 2015 and February 2016 or any intervening time while at or near your designated place of work, you continuously harassed Ms Bongiwe Modiseemang, an intern and a former student of SWGC TVET College by touching her inappropriately and insinuating statements which were sexual in nature towards her while you are aware that it is wrong and, or inappropriate of you to do so.
Charge 2: Abuse of position / powers
It is alleged that on Saturday the 7th March 2015 during the student representative council induction camp at around 16:00 while at or near Dobsonville Campus you invited Ms Bongiwe Modiseemang into your room, once she entered you touched her private parts and when she rejected your advances you uttered “you won’t get the post, I will change qualifications”.
Alternative charge 2: contravention of paragraph 3.12 of the SACE Code of Professional Ethics
In that you abused the position you holding for personal gain, by doing so you contravened paragraph 3.12 of the South African Council of Educators Code of Professional Ethics.
Charge 3: Breach of South African Council of Educators Code of Professional Ethics paragraph 3 [3.8]
It is alleged that between January 2015 and February 2016 or any intervening period you contravened paragraph 3 [3.8] of the Educators Code of Professional Ethics in that you failed to refrain from any form of sexual relationship with a learner / intern (Physical or otherwise) at Dobsonville Campus. (The applicant was not found guilty on this charge).
60. This case mainly turns on the alleged misconduct related to sexual harassment of Modiseemang by the applicant and that the misconduct happened in more than one occasion.
61. The Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace defines sexual harassment as “unwanted conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace”. In terms of this Code, sexual harassment may include verbal conduct such as unwelcome innuendos, sexual advances, comments with sexual overtones, sex related jokes, unwanted inquiries about a person’s sex life and the sending by electronic means or otherwise of sexually explicit text. It also includes non-verbal conduct such as whistling, unwelcome gestures, indecent exposures and unwelcome displays of sexual explicit pictures or objects. Sexual harassment may occur through victimization or through quid pro quo harassment and sexual favoritism. It may be a first time offence or an ongoing offence. What is important is that the harassment is unwelcome conduct and it severely infringes upon the victim’s right to dignity
62. After having considered the two versions that were presented before me, I find that the respondent succeeded in discharging its burden of proof on a balance of probabilities. Allegations of sexual harassment, in most cases than not, do not occur in the presence of other people, but between “the harasser” and “the victim”. It therefore follows that it is, more often than not, difficult to prove whether indeed the allegations are genuine or are marred with ulterior motives from “the victim”. Mdletshe, who impressed me as a witness, testified that he witnessed the applicant touching Modiseemang on her breasts on 03 December 2015 and pulling her into Statu’s office. He further testified that Modiseemang was emotional when she left Statu’s office and she could not assist him with his query. This version, that the applicant was emotional, was corroborated by Mashiane. The applicant rebutted this version on the basis that Mdletshe was not at the Dobsonville Campus on 03 December 2015 because he did not sign the access control register at the gate. Salman’s testimony that students and former students do not sign the access control register was corroborated by Statu. Subsequently, I find that it is probable that Mdletshe was at the Campus on that day and he witnessed the incident as alleged by Modiseemang.
63. The applicant did not deny that he was at the Dobsonville Campus on 03 December 2015 and this can also be substantiated by the access control register. The applicant’s version was that his only interaction with Modiseemang on 03 December 2015 was to request the trip authorization form from her. I find this hard to believe. Modiseemang’s testimony that she did not deal with trip authorization forms was not challenged. Therefore, it would not be farfetched to conclude that the applicant could reasonably have known, as a manager that Modiseemang did not deal with trip authorization forms. Now, why would he want her to assist him with same would be the next question. Unfortunately, the applicant did not have an answer to this question. Therefore, I can reasonable conclude that the applicant had his own motives. Mdletshe testified that he witnessed the applicant touching Modiseemang on her breast and pulling her into an office next to Statu’s office. This was also Modiseemang’s version that the applicant touched her on her breast and pulled her into an office. I note that the applicant took an issue on whether he touched her from the front as alluded by Mdletshe or from behind as alluded by Modiseemang. However, it is my considered view that this little contradiction between the two versions would not absolve the applicant from his conduct.
64. I now turn to the alleged incident of 07 March 2017. It was the testimony of the applicant, Kula and Mola that on this day, they were in the applicant’s room at the Alpha Conference Centre discussing the College’s constitution in preparations for the SRC election from 14h30 to 18h20. It was their testimony that they never adjourned for a break during this time and that there was no one who came to the applicant’s room during this time. The reason that their recollections of the precise times of their meeting were similar was that it was just after lunch and just before supper. When pressed under cross-examination, their recollection of events seemed to be selective. However, what created doubts in my mind was the fact that Kula and Mola’s statements (page 1 and 2 of Bundle A) are similar and that it is on record that they were typed by the applicant. Again, the recollection of Kula and Mola are contradictory as to how many people were part of the meeting. Kula said they were five whilst Mola said they were seven. Kula said that they were all seated on chairs. Whilst Mola said only the IEC officials were seated and the applicant and Kula were standing. This makes me draw a negative inference to their credibility as witnesses. I therefore conclude that their evidence was rehearsed in order to defend the applicant. I therefore disregard their evidence.
65. Now, turning on the issue of the WhatsApp messages between the applicant and Modiseemang. It is common cause that there has been WhatsApp communications between the applicant and Modiseemang. The applicant is on record that he does not deny having sent these messages to Modiseemang. However, he denied that the messages have any sexual connotations. It was the applicant’s testimony that Modiseemang was not his friend, but only a colleague. If indeed their relationship was only platonic, the WhatsApp pictures that he forwarded to her were inappropriate and the applicant ought to have known better. I am alive to the fact that the applicant had different interpretations to these messages. For instance, “sibhonyelwe” – the applicant interpreted it to mean that there was a bomb explosion. However, this could also mean that we are horny. The applicant stated that in the statement “we are leaving in the world where people are free to touch others private part but not phone because phones are private” had no sexual connotations. Why would he send a message that people are free to touch each other’s private parts to Modiseemang if he had no intentions to touch her? The applicant stated that his meaning of “uyandirhalela” meant that Modiseemang envied him as a manager. It was Modiseemang’s contention that she understood this to mean that she had lust for the applicant. If one has regard to the WhatsApp conversation and contextualize it, the only logical conclusion that one would draw would be that Modiseemang’s version was more probable under the circumstances.
66. On the issue of collusion between Mahasha, Makhonjwa and the principal, the applicant relied on the e-mail conversation between the trio. Sithebe testified that, from the naked eye, the e-mails were not edited, but it was a cut and paste from the original e-mail to a word document. This was not rebutted. Therefore, the applicant’s version that the e-mail were edited is unfounded.
67. I believe the applicant that he did not have the powers or authority to change the qualifications requirements for an advertised post. This responsibility fell squarely within the ambit of the HR Department. However, considering that Modiseemang was an intern and she could reasonably not have been aware of how the recruitment process unfolds and in all likelihood, the applicant knew that Modiseemang did not know, it is probable that the applicant could have threatened Modiseemang with these averments. After having considered the evidence before me, I find that the applicant misconducted himself as alleged. The last question that I need to answer is whether dismissal was appropriate as a sanction.
68. I will now turn to the appropriateness of the sanction. In the Constitutional Court judgment of Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC) it was stated that in approaching the dismissal dispute impartially a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. I have considered the applicant’s personal circumstances. However, the seriousness of this misconduct and the environment within which the applicant was employed, would not have warranted any other sanction other than dismissal. Therefore, I find that dismissal was the appropriate sanction.
69. Finally, Makhonjwa impressed me as a witness and his credibility and demeanor during his evidence in chief and during cross-examination could not be faltered. It was not disputed that he was appointed by the college (Mr Schlemmer in particular) as a chairperson of the applicant’s disciplinary hearing and not Mahasha. The applicant could not substantiate his biasness during the proceeding except to suggest that he changed the sanction from final written warning to dismissal. There is no shred of evidence that was presented before me that there was an initial outcome of the applicant’s dismissal hearing. Therefore, I find that the applicant was only clutching on straws and consequently find that the dismissal was procedurally fair.
AWARD
I therefore make the following award:
70. The applicant’s dismissal was procedurally and substantively fair.
71. The applicant is snot entitled to any relief.
Arbitrator: Themba Manganyi
09 February 2018
Province: Gauteng
Applicant: NAPTOSA OBO MAKHAPHELA KHAYALETHU STEPHEN
Respondent: 1st Respondent SOUTH WEST GAUTENG TVET COLLEGE and 2nd DEPARTMENT OF HIGHER EDUCATION AND TRAINING
Issue: Unfair Dismissal - Misconduct
Venue: South West Gauteng TVET College (SWGC) in Molapo, Soweto
Award Date: 9 February 2018
Arbitrator: Themba Manganyi
Panellist: Themba Manganyi
Case No.: ELRC97-16/17GP
Dates of Hearing: 29 May 2017, 04 August 2017,
11 September 2017, 19 September 2017,
30 October 2017 & 17 January 2018
Date of Arguments: 24 January 2018
Date of Award: 09 February 2018
In the Arbitration Hearing between
NAPTOSA OBO MAKHAPHELA KHAYALETHU STEPHEN APPLICANT
and
SOUTH WEST GAUTENG TVET COLLEGE
DEPARTMENT OF HIGHER EDUCATION AND TRAINING 1ST RESPONDENT
2ND RESPONDENT
Applicant’s representative:
Mr Tumi Madika
Tel: 011 486 1256
Fax: 011 486 2899
E-Mail Address: tumim@naptosa.co.za / khaps240@gmail.com
Respondent’s representative: Mr Tshepo Mahasha
Telephone: 011 141 1000
Fax: 086 665 6133
mahashat@swgc.co.za
DETAILS OF HEARING AND REPRESENTATION
1. This is an arbitration award issued in terms of section 138(7) of the Labour Relations Act, as amended (“the LRA”). This dispute was referred for arbitration to the Education Labour Relations Council (“the Council”) on 17 March 2017.
2. The arbitration proceedings were heard on 29 May 2017, 04 August 2017, 11 September 2017, 19 September 2017, 30 October 2017 and 17 January 2018. These proceedings were mainly held at South West Gauteng TVET College (SWGC) in Molapo, Soweto and on 11 September 2017 they were held at the SWGC in Dobsonville Campus.
3. Mr Tumi Madika (“Madika”), an official from Naptosa, represented the applicant, Mr Stephen Khayalethu Makhaphela. Mr Tshepo Mahasha (“Mahasha”), the Labour Relations Officer, represented both the respondents, South West Gauteng TVET College and the Department of Higher Education and training.
4. The parties submitted bundle of documents into the record and they were accordingly marked. An inspection in loco was conducted on 11 September 2017 at the Dobsonville Campus. Parties were allowed to call witnesses, cross-examine and re-examine them. At the end of the proceedings, parties agreed that they will submit closing arguments in writing on or before 24 January 2018. I have received the closing arguments and they have been considered when writing this award.
PRELIMINARY ISSUES BY THE APPLICANT
Legal representation application
5. On 29 May 2017, Mr B. Moshoeshoe (an Advocate from Arbitration Foundation of Southern Africa) launched a viva voce legal representation application to represent the applicant. Briefly, he submitted that the matter was complex, the chairperson of the disciplinary enquiry stated that the matter would raise the issue of public interest and that the respondents are represented by a legally trained person.
6. In response, Mahasha argued that the applicant did not show how complex was the matter, there are no questions of law that will be raised and if legal representation were to be allowed, there would be no comparative ability between the representatives as he was not legally trained.
Ruling
7. This is an alleged unfair dismissal dispute related to the applicant’s conduct. In terms of the Rule 25.4.2 of the Council’s Rules, parties are not entitled to be represented by a legal practitioner unless the panellist concludes that it is unreasonable to expect a party to deal with the dispute without legal representation, after considering:
i. the nature of the questions of law raised by the dispute;
ii. the complexity of the dispute;
iii. the public interest; and
iv. the comparative ability of the opposing parties or their representatives to deal with the arbitration of the dispute.
8. It was my considered view that there was no question of law that would be raised in this dispute and the dispute was not complex. The submissions that the disciplinary enquiry chairperson stated that the dispute would raise public interest could not be substantiated. On the comparative ability of the representative, Mahasha was studying towards law degree and therefore it cannot be said that he was legally trained as alluded to by Moshoeshoe. I have also considered that the applicant was a member in good standing of a trade union. It was on these bases that legal representation was denied.
Double jeopardy
9. Madika submitted on behalf of the applicant that the applicant was charged twice for the same misconduct and that the precautionary transfer / suspension was irregular. The charges preferred against the applicant did not comply with the employer’s disciplinary code. The Appeal Board process was not adhered to by the respondent. Mr Nkosi (the principal) ignored the ruling of the initial disciplinary hearing chairperson.
10. Mahasha argued that during the first disciplinary hearing, the applicant’s representative raised a preliminary issue in that the principal did not have the right to discipline the applicant. He referred to page 4 of Bundle E under “ruling” and stated that the chairperson did not have the powers to dismiss the case. Therefore, the respondent reinstated the charges. The case was heard by a new person who made a decision after hearing the facts of the case.
Ruling
11. I ruled that this issue need to be tested through the leading of evidence during the arbitration proceedings.
Recusal of the respondents’ representative
12. Madika applied for the recusal of the respondents’ representative (Mahasha) arguing that Mahasha colluded with the initiator and the disciplinary hearing chairperson as per the e-mails on page 8 to 16 of Bundle E.
13. Mahasha challenged the authenticity of the e-mails and stated that these issues were not raised during the disciplinary hearing and they were also not raised on referral form (LRA Form 7.11) and during the pre-arbitration meeting. He submitted that the issue about collision must be put to test through evidence. He argued that he was appointed by the respondents to represent them as the respondents had confidence in him. There was no link between the chairperson’s finding and the association that he has with the chairperson.
14. Madika replied by stating that the applicant was not represented by a legal representative during the pre-arbitration meeting and that the minutes ought to be augmented. He stated that the e-mails were authentic and he was willing to provide sources if the need arose.
Ruling
15. I ruled that it was the respondents’ obligation to prove that there was no collision when they lead their evidence. On the issue of the respondents’ representative recusal, I ruled that there was nothing preventing Mahasha in terms of the Council’s Rules to represent the respondents. Mahasha had the locus standi to represent the respondents.
PRELIMINARY ISSUE BY THE RESPONDENT
Discovery of a document
16. Mahasha made an application to introduce the statement of one Mary Matona into evidence and he stated that the purpose of this statement was to prove that there was a pattern in the applicant’s behaviour.
17. Madika objected to the introduction of this statement and stated that it was part of the conspiracy theory that he earlier alluded to. He also stated that this statement was not made available during the disciplinary hearing. He further stated that these allegations are made by interns who want to secure positions with the college.
18. In his response, Mahasha stated that there was no evidence regarding any collusion and that there would be no prejudice that the applicant would suffer if this statement was introduced into the record.
Ruling
19. At this stage, I was not even addressed on the opening statements. Therefore, I did not find it improper to allow the introduction of this statement into evidence. However, I cautioned the respondents that the statement would need to be spoken to in order for its veracity to be tested.
ISSUES TO BE DECIDED
20. The dismissal of the applicant is not in dispute. I am therefore required to determine the procedural and substantive fairness of the applicant’s dismissal. In the event that I find that the dismissal was unfair, I will be required to determine the appropriate relief. The applicant seeks reinstatement as a relief.
BACKGROUND
21. The applicant was employed on 01 January 2005. At the time of his dismissal, he held a position of Student Support Services Manager and he was attached to the South West Gauteng TVET College. The applicant’s dismissal was occasioned on 19 October 2016 after the respondent preferred the following charges against him:
Charge 1: Sexual Harassment
Charge 2: Abuse of position / powers
Alternative charge 2: Contravention of paragraph 3.12 of the SACE Code of Professional Ethics
Charge 3: Breach of the South African Council of Educators Code of Professional Ethics paragraph 3 [3.8]
22. After the dismissal sanction, the applicant appealed this decision and the appeal outcome was handed down on 08 December 2016 upholding the dismissal. The applicant sought reinstatement as a relief if I find in his favour.
SUMMARY OF EVIDENCE AND ARGUMENTS
23. The respondent called six witnesses to testify on its behalf and they all testified under oath. The LRA requires me to issue an award with 'brief reasons'; accordingly, what follows hereunder is not an exhaustive survey of the evidence and argument but is, rather, merely a short summary of the matters relevant to my decision.
Respondent’s case
24. Ms Bongiwe Modiseemang (“Modiseemang”) testified that she is employed at the SWCG Dobsonville Campus at the Disability Unit since 24 June 2013. She stated that the applicant was her lecturer when she was a student at the college in 2007. She averred that the applicant tried to kiss her when she went to fetch her bag from him during her time as a student. She avowed that on 07 March 2015, during the SRC induction camp, the applicant called her to his room and she found the applicant alone. The applicant asked her if she still did not want to give him her “biscuit”. Then the applicant started fondling her and touching her private parts and breasts. The applicant threatened her that he would change the requirements of the advertised posts in order for her not to qualify. The Monday thereafter (09/03/2015), she consulted a doctor.
25. She stated that the other incident occurred on 03 December 2015 at the Dobsonville Campus. On this day, she was called to assist a student at the reception. When she got to the reception, she went to the bathroom. When she exited the bathroom, the applicant came out of an office and he started fondling her and touched her breasts. The applicant requested her for a trip authorization sheet and she told him that she no longer worked with trip authorization sheets. The applicant then pulled her into the Campus Manager’s office. There was no one in the Manager’s office. The applicant continued fondling her and asked her if she still did not want to sleep with him. The applicant said that she had beautiful breasts and a nice butt. When she left the applicant, she told one Promise what transpired and Promise asked her why does she not report the matter. She told Promise that she was afraid because no one would believe her as she did not have proof.
26. Under cross-examination, she when asked what was her understating of continuously harassed. She stated that it meant that he sexually harassed her more than once. She conceded that she did not have the WhatsApp message in which the applicant invited her to his room on 07 March 2015 and that no one saw that WhatsApp at the camp, but she saw the message to Promise during the following Tuesday when she went back to work. She stated that when the applicant invited her to his room it was around 15h30 and she would not say if anybody saw her getting into the applicant’s room. However, she submitted that Kola and Mola must not be believed over her, because it was not the first time that the applicant harassed her. She reiterated that the applicant started harassing her since she was a student back in 2007. On whether she made the applicant aware that she was not comfortable with what he was doing, she said the applicant would have realized that she was not comfortable as she was crying. She stated that the applicant’s witnesses who will testify that the applicant did not touch her inappropriately would not be telling the truth because they were not there when it happened.
27. Regarding the incident of 03 December 2015, she reaffirmed that the applicant touched her breasts, pinched her and pulled her into an office. When put to her that it was not possible for the applicant, considering his stature, to act in the manner that she described in full view of students. She said that the applicant was used to act in that manner even when she was still a student that was how the applicant was conducting himself. She restated that the applicant would always tell her that if she does not want to give him her vagina she would not get the posts / position. She stated that the applicant never conversed with her about work related issues. She confirmed that she was the one who initiated the WhatsApp conversation with the applicant. In her message, she was asking the applicant about the students’ accommodation. She was adamant that during the WhatsApp conversation where she asked the applicant if he wanted sex, the applicant never said “tjo”. On the issue of the medical certificate, she stated that she did not know that the doctor was not registered and that the doctor wrote what she told him.
28. Mr Sbonelo Mdletshe (“Mdletshe”) stated that he went to the Dobsonville Campus on 03 December 2015 to enquire about people who had a reading problem. Modiseemang was called to come and assist him. When Modiseemang came, she went to the bathroom. When she came out of the bathroom, they went to Ms Statu’s office. The applicant came and started touching Modiseemang’s breast. They (Modiseemang and the applicant) went into Statu’s office and held a conversation, but he could not hear what they were talking about. Mdletshe waited outside the office. He went into the office when the applicant left. He told Modiseemang the reason of his visit, but she said she could not help him as she was emotional. She took his numbers and promised him that she will call him.
29. During cross-examination, he was asked if he was coerced to write the statement on page 29 of Bundle B and he stated that he was not coerced. He wrote the statement and gave it to Mahasha. When challenged on the access control register of 03 December 2015 that he was not at the college on that day, he submitted that he did not sign the register on that day. However, he reaffirmed that he was at the college on 13 December 2015. He confirmed that he witnessed the applicant touching Modiseemang.
30. On re-examination, he stated that it was not always that people signed when they enter the college premises.
31. Mr Solo Makhonjwa (“Makhonjwa”) stated that he was the chairperson of the applicant’s disciplinary hearing. He confirmed that page 4 - 23 of Bundle A was his report emanating from the applicant’s disciplinary enquiry. He explained the process that he followed in the disciplinary hearing and he stated that he applied all the eight golden rules on how to conduct a disciplinary hearing. He refuted the allegations that suggested that he colluded with Mahasha and the Principal and that he changed the final written warning sanction into a dismissal sanction. He stated that the issue of double jeopardy was never raised with him during the disciplinary hearing. He confirmed that he knew Mahasha from the Department of Justice when they were colleagues.
32. Under cross-examination, he stated that he was appointed by Schlemmer to preside over the applicant’s disciplinary hearing. He denied the notion that he was biased. He denied that the WhatsApp messages were just part of the evidence that was presented before him, but they were not the only evidence that he considered to arrive at his decision. He also confirmed that the e-mails on page 8 of Bundle E were between him and Mahasha.
33. Ms Promise Mashiane (“Mashiane”) submitted that on 03 December 2015 she was at Dobsonville Campus to access the internet. She stated that Modiseemang came to her and told her that the applicant pulled and touched her breasts. She said Modiseemang told her that she was afraid to report the applicant’s conduct because she did not want to lose her job. She further stated that Modiseemang was emotional.
34. Under cross-examination, she admitted not to have witnessed the applicant sexually harassing Modiseemang, but she believed what Modiseemang told her. She confirmed that Modiseemang showed her the WhatsApp conversations between her (Modiseemang) and the applicant.
35. Mr Siyabonga Salman (“Salman”) averred that he was a Security Officer at Dobsonville Campus. He submitted that students do not sign in and out at the gate, because they produce their student cards. Only visitors sign in and out.
36. Under cross-examination, he stated that former students have to sign the access control register as they are considered to be visitors.
37. Ms Busisiwe Statu (“Statu”) stated that she was the Dobsonville Campus Manager. She stated that students produce their student cards to gain access to the college and visitors sign the access control register. She submitted that there was a problem with the access control card system during 2015. She also submitted that old students would produce their old student cards and they would be allowed access and at times old students would not sign in.
38. During cross-examination, she said that it was not management instruction to allow old students into the campus without signing the access control register. However, security personnel often allowed them in.
Respondent’s closing arguments
39. The respondent’s representative submitted his closing arguments in detail. He also submitted detailed case law and comments from labour law authorities in support of his submissions. All of this was taken into consideration in the writing of this award. For the sake of brevity this will not be repeated as they are a matter of record. It was taken into consideration in the writing of this award.
Applicant’s case
Seven (7) witnesses (including the applicant) testified for the applicant and they all testified under oath. Their evidence in summary was the following:
40. Mr Stephen Khayalethu Makhapela (“the applicant”) testified that he used to teach Marketing and Consumer Behavior and Modiseemang was one of his students. He stated what Modiseemang was alleging never took place according to his knowledge. He submitted that he could not remember the incident where he allegedly took Modiseemang’s bag as it happened a long time ago. He testified that during the SRC induction camp, the IEC officials arrived in the afternoon around 14h20 – 14h30 and he took them into his room. He invited Kula to join the meeting. He submitted that they were in the meeting until 18h20. He denied that he has touched Modiseemang inappropriately. He said that that incident never happened. When asked why would Modiseemang say that he harassed her. He said that he cannot speak for her. He testified that he was at the Dobsonville Campus on 03 December 2015 to collect a car. He met Modiseemang in the PA’s office and not at the reception as alleged. He waited for Modiseemang to make her a trip authorization. He denied having touched Modiseemang on that day or any other day. He further denied having made any sexual statements to her.
41. He submitted that he was not responsible for recruitment and as such, he could not change qualifications for a post. He averred that he did not agree with the contents of the WhatsApp conversation because he believed that they were tampered with. He submitted that when Modiseemang sent her a message at 11:49 on 02 February 2016 (page 28 of Bundle B), he responded at 11:49 or 11:50 by saying “Tjo” when asked if he wanted sex. He stated that the message on page 31 of Bundle B is a social media conversation that he got and he forwarded it to Modiseemang. When he sent this message, she did not complain that the message was offensive. He said he could not interpret the meaning of the picture on page 32 of Bundle B. He further said that there were no sexual advances on the picture on page 33 of Bundle B.
42. He also submitted that he found it necessary to validate the doctor’s credentials that Modiseemang consulted because he was wrongfully accused and when he saw the medical certificate, he could see it was a cut and paste.
43. Under cross-examination, he disagreed that the statement that “we are living in the world where people are free to touch each other’s private part but not phones because they are private” has sexual connotations. He said that he sent her this message to show her how cellphones have turned to be private and that he did not see anything wrong in sending her this message. He said when he sent the message that “uyandirhalela” he meant that she envied him as a manager and this was informed by the conversation that they had earlier which continued on WhatsApp. He submitted that he thought Modiseemang’s motives to get him dismissed was because someone has told her that he did not shortlist her. He admitted that the statements on page 1 and 2 of Bundle D were typed by him.
44. Mr Hunisani Mani (“Mani”) testified that he was the SRC President and his testimony was in relation to the students’ protest. He stated that the students wanted the applicant to be reinstated because there was no one acting in the applicant’s position.
45. Under cross-examination he stated that students were protesting because they wanted a person to be in that position.
46. Mr Vusimzi Kula (“Kula”) stated that he was working at the Student Support Services Department at SWGC TVET College since 2008 and confirmed that the statement on page 1 of Bundle D was his statement. He said that he was part of the meeting at the Alpha Conference Centre on 07 March 2017 where they discussed the College’s SRC constitution with the IEC officials in the applicant’s room. He stated that people that were present at the meeting was himself, the applicant and three IEC officials. He denied the allegations that the applicant was ever left alone in his room nor did Modiseemang ever came into the applicant’s room.
47. Under cross-examination, he said that the applicant told him that there were allegations against him that he sexually harassed Modiseemang and he (the applicant) requested him to write a statement. He confirmed that the applicant typed the statement.
48. Ms Kgomotso Nkoane (“Nkoane”) stated that she is a Manager Registrations at the Health Professional Council of South Africa (HPCSA). She confirmed that she issued the letter on page 9 of Bundle D to the applicant and further stated that Dr S.A Raymond was not registered to practice medicine in South Africa. She was referred to page 27 of Bundle B and she stated that the medical certificate was not valid because the doctor that issued the medical certificate does not appear on the registration of the HPCSA. Therefore, the medical certificate was not valid.
49. Under cross-examination, when asked if a patient would know whether a doctor was registered with the HPCSA or not before consultation, she stated that there are road shows that are conducted by the HPCSA to enlighten the public.
50. Mr Lehlohonolo Sithebe (“Sithebe”) testified that he was employed at the SWGC TVET College as the Acting Information Communication Technology (ICT) Manager. He essentially testified about the authenticity of the e-mails contained from page 8 to page 16 of Bundle E. When asked if the e-mail conversation was edited or not, he stated that from what he sees on the document was the e-mail conversation that was cut and pasted on the word document, but it was not edited and he stated that this was because of the line spacing in the conversation.
51. Under cross-examination, he stated that in order for one to validate the authenticity of the e-mails, one has to look at the original e-mail from the server.
52. Ms Dian Mola (“Mola”) testified that she was an IEC employee as an Outreach and Training Officer and that she was part of the team that assisted the SWGC TVET College with the SRC induction process on 07 March 2017. She stated that the IEC people arrived at the Alpha Conference Centre after lunch. She said that there were three people from the IEC and four from the college, seven in total. She further stated that she did not know Modiseemang. She submitted that it was not possible that the applicant would have sexually harassed Modiseemang during the time that is alleged.
53. Under cross-examination, when pressed about the times that appear on her statement, she said the times were agreed upon between herself and the applicant after some discussions. She stated she wrote the statement and the applicant typed the statement.
54. Ms Gugu Ndlovu (“Ndlovu”) stated that she was a Senior Lecturer at the Roodepoort Campus. She averred that she was part of the selection committee for the shortlisting meeting held on 15 September 2015 as per Bundle D page K2. She stated that the job requirements were drafted by the HR Department. She further stated that it would not have been possible for the applicant to change the qualification requirements of the position during the shortlisting meeting, but she would not know what happened prior to the shortlisting meeting.
55. Under cross-examination, she conceded that part of the minutes of the shortlisting meeting were not truthful. She could not comment whether, during the period of this meeting, Modiseemang had N6 or not.
Applicant’s closing argument
56. The applicant’s representative submitted its closing arguments in detail. For the sake of brevity this will not be repeated as they are a matter of record. It was taken into consideration in the writing of this award.
ANALYSIS OF EVIDENCE AND ARGUMENTS
57. This is an arbitration award issued in terms of section 138(7) of the LRA with my brief reasons. All the evidence and the closing arguments as submitted by the parties were considered when writing this award.
58. Section 188 of the LRA stipulates that a dismissal that is not automatically unfair, is unfair if the employer fails to prove that the reason for dismissal is a fair reason related to the employee’s conduct and that the dismissal was effected in accordance with a fair procedure. In section 192 of the LRA, it is further stipulated that if the applicant has established the existence of a dismissal the burden of proof, on a balance of probabilities that the applicant’s dismissal was procedurally and substantively fair, rests with the respondent. In making that determination, I must take into account the provisions of the Code of Good Practice: Dismissal. I am required to make "a moral or value judgment as to what is fair in all the circumstances" (See in this regard Metro Cash & Carry Ltd v Tshehla (1997) 1 BLLR 35 (LAC); and Numsa v Vetsak Co-Operative Ltd and Others (1996) 3 All SA 311 (A)).
59. The charges which were brought against the applicant were:
Charge 1: Sexual harassment
It is alleged that between January 2015 and February 2016 or any intervening time while at or near your designated place of work, you continuously harassed Ms Bongiwe Modiseemang, an intern and a former student of SWGC TVET College by touching her inappropriately and insinuating statements which were sexual in nature towards her while you are aware that it is wrong and, or inappropriate of you to do so.
Charge 2: Abuse of position / powers
It is alleged that on Saturday the 7th March 2015 during the student representative council induction camp at around 16:00 while at or near Dobsonville Campus you invited Ms Bongiwe Modiseemang into your room, once she entered you touched her private parts and when she rejected your advances you uttered “you won’t get the post, I will change qualifications”.
Alternative charge 2: contravention of paragraph 3.12 of the SACE Code of Professional Ethics
In that you abused the position you holding for personal gain, by doing so you contravened paragraph 3.12 of the South African Council of Educators Code of Professional Ethics.
Charge 3: Breach of South African Council of Educators Code of Professional Ethics paragraph 3 [3.8]
It is alleged that between January 2015 and February 2016 or any intervening period you contravened paragraph 3 [3.8] of the Educators Code of Professional Ethics in that you failed to refrain from any form of sexual relationship with a learner / intern (Physical or otherwise) at Dobsonville Campus. (The applicant was not found guilty on this charge).
60. This case mainly turns on the alleged misconduct related to sexual harassment of Modiseemang by the applicant and that the misconduct happened in more than one occasion.
61. The Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace defines sexual harassment as “unwanted conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace”. In terms of this Code, sexual harassment may include verbal conduct such as unwelcome innuendos, sexual advances, comments with sexual overtones, sex related jokes, unwanted inquiries about a person’s sex life and the sending by electronic means or otherwise of sexually explicit text. It also includes non-verbal conduct such as whistling, unwelcome gestures, indecent exposures and unwelcome displays of sexual explicit pictures or objects. Sexual harassment may occur through victimization or through quid pro quo harassment and sexual favoritism. It may be a first time offence or an ongoing offence. What is important is that the harassment is unwelcome conduct and it severely infringes upon the victim’s right to dignity
62. After having considered the two versions that were presented before me, I find that the respondent succeeded in discharging its burden of proof on a balance of probabilities. Allegations of sexual harassment, in most cases than not, do not occur in the presence of other people, but between “the harasser” and “the victim”. It therefore follows that it is, more often than not, difficult to prove whether indeed the allegations are genuine or are marred with ulterior motives from “the victim”. Mdletshe, who impressed me as a witness, testified that he witnessed the applicant touching Modiseemang on her breasts on 03 December 2015 and pulling her into Statu’s office. He further testified that Modiseemang was emotional when she left Statu’s office and she could not assist him with his query. This version, that the applicant was emotional, was corroborated by Mashiane. The applicant rebutted this version on the basis that Mdletshe was not at the Dobsonville Campus on 03 December 2015 because he did not sign the access control register at the gate. Salman’s testimony that students and former students do not sign the access control register was corroborated by Statu. Subsequently, I find that it is probable that Mdletshe was at the Campus on that day and he witnessed the incident as alleged by Modiseemang.
63. The applicant did not deny that he was at the Dobsonville Campus on 03 December 2015 and this can also be substantiated by the access control register. The applicant’s version was that his only interaction with Modiseemang on 03 December 2015 was to request the trip authorization form from her. I find this hard to believe. Modiseemang’s testimony that she did not deal with trip authorization forms was not challenged. Therefore, it would not be farfetched to conclude that the applicant could reasonably have known, as a manager that Modiseemang did not deal with trip authorization forms. Now, why would he want her to assist him with same would be the next question. Unfortunately, the applicant did not have an answer to this question. Therefore, I can reasonable conclude that the applicant had his own motives. Mdletshe testified that he witnessed the applicant touching Modiseemang on her breast and pulling her into an office next to Statu’s office. This was also Modiseemang’s version that the applicant touched her on her breast and pulled her into an office. I note that the applicant took an issue on whether he touched her from the front as alluded by Mdletshe or from behind as alluded by Modiseemang. However, it is my considered view that this little contradiction between the two versions would not absolve the applicant from his conduct.
64. I now turn to the alleged incident of 07 March 2017. It was the testimony of the applicant, Kula and Mola that on this day, they were in the applicant’s room at the Alpha Conference Centre discussing the College’s constitution in preparations for the SRC election from 14h30 to 18h20. It was their testimony that they never adjourned for a break during this time and that there was no one who came to the applicant’s room during this time. The reason that their recollections of the precise times of their meeting were similar was that it was just after lunch and just before supper. When pressed under cross-examination, their recollection of events seemed to be selective. However, what created doubts in my mind was the fact that Kula and Mola’s statements (page 1 and 2 of Bundle A) are similar and that it is on record that they were typed by the applicant. Again, the recollection of Kula and Mola are contradictory as to how many people were part of the meeting. Kula said they were five whilst Mola said they were seven. Kula said that they were all seated on chairs. Whilst Mola said only the IEC officials were seated and the applicant and Kula were standing. This makes me draw a negative inference to their credibility as witnesses. I therefore conclude that their evidence was rehearsed in order to defend the applicant. I therefore disregard their evidence.
65. Now, turning on the issue of the WhatsApp messages between the applicant and Modiseemang. It is common cause that there has been WhatsApp communications between the applicant and Modiseemang. The applicant is on record that he does not deny having sent these messages to Modiseemang. However, he denied that the messages have any sexual connotations. It was the applicant’s testimony that Modiseemang was not his friend, but only a colleague. If indeed their relationship was only platonic, the WhatsApp pictures that he forwarded to her were inappropriate and the applicant ought to have known better. I am alive to the fact that the applicant had different interpretations to these messages. For instance, “sibhonyelwe” – the applicant interpreted it to mean that there was a bomb explosion. However, this could also mean that we are horny. The applicant stated that in the statement “we are leaving in the world where people are free to touch others private part but not phone because phones are private” had no sexual connotations. Why would he send a message that people are free to touch each other’s private parts to Modiseemang if he had no intentions to touch her? The applicant stated that his meaning of “uyandirhalela” meant that Modiseemang envied him as a manager. It was Modiseemang’s contention that she understood this to mean that she had lust for the applicant. If one has regard to the WhatsApp conversation and contextualize it, the only logical conclusion that one would draw would be that Modiseemang’s version was more probable under the circumstances.
66. On the issue of collusion between Mahasha, Makhonjwa and the principal, the applicant relied on the e-mail conversation between the trio. Sithebe testified that, from the naked eye, the e-mails were not edited, but it was a cut and paste from the original e-mail to a word document. This was not rebutted. Therefore, the applicant’s version that the e-mail were edited is unfounded.
67. I believe the applicant that he did not have the powers or authority to change the qualifications requirements for an advertised post. This responsibility fell squarely within the ambit of the HR Department. However, considering that Modiseemang was an intern and she could reasonably not have been aware of how the recruitment process unfolds and in all likelihood, the applicant knew that Modiseemang did not know, it is probable that the applicant could have threatened Modiseemang with these averments. After having considered the evidence before me, I find that the applicant misconducted himself as alleged. The last question that I need to answer is whether dismissal was appropriate as a sanction.
68. I will now turn to the appropriateness of the sanction. In the Constitutional Court judgment of Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC) it was stated that in approaching the dismissal dispute impartially a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. I have considered the applicant’s personal circumstances. However, the seriousness of this misconduct and the environment within which the applicant was employed, would not have warranted any other sanction other than dismissal. Therefore, I find that dismissal was the appropriate sanction.
69. Finally, Makhonjwa impressed me as a witness and his credibility and demeanor during his evidence in chief and during cross-examination could not be faltered. It was not disputed that he was appointed by the college (Mr Schlemmer in particular) as a chairperson of the applicant’s disciplinary hearing and not Mahasha. The applicant could not substantiate his biasness during the proceeding except to suggest that he changed the sanction from final written warning to dismissal. There is no shred of evidence that was presented before me that there was an initial outcome of the applicant’s dismissal hearing. Therefore, I find that the applicant was only clutching on straws and consequently find that the dismissal was procedurally fair.
AWARD
I therefore make the following award:
70. The applicant’s dismissal was procedurally and substantively fair.
71. The applicant is snot entitled to any relief.
Arbitrator: Themba Manganyi
09 February 2018