PSES 227-14/15 EC
PSES 227-14/15 EC
Award Date:
5 April 2018
Case Number: PSES 227-14/15 EC
Province: Eastern Cape
Applicant: H.Q.J. WITBOOI
Respondent: Department of Education – Eastern Cape
Issue: Unfair Dismissal - Misconduct
Award Date: 5 April 2018
Arbitrator: C van der Berg
Date: 05 April 2018
Case No: PSES 227-14/15 EC
In the matter between
H.Q.J. WITBOOI Applicant
and
DEPARTMENT OF EDUCATION EASTERN CAPE Respondent
PANELIST: Mr. C. Van Der Berg
ARBITRATION: Various dates in 2016 and concluded in January 2018
ARBITRATION AWARD
1. Details of hearing and representation
2. The arbitration hearing took place at various venues within Port Elizabeth on various dates during 2016 and concluded in January 2018 when closing arguments were submitted. Mr. W. van Rensburg, as instructed by Mr. W.G. Hicken, represented the applicant whilst Advocate I. Dala, with the State Attorney as instructing attorney, represented the respondent. The matter was then concluded on 24 November 2017 and the parties agreed to submit their closing arguments in writing.
3. As one of the witnesses was a minor, her evidence was obtained through the assistance of an intermediary. In respect of the other witnesses, after explaining to each of them what the process was to entail and having satisfied myself that they understood the process, I proceeded with the evidence.
4. In order to protect the identity of the minor complainant and witness, her name and the name/s of any family member that may have testified during this or any other proceedings, will not be revealed and they will be referred to by their initials throughout the award.
5. Issue to be decided
6. The arbitration proceeding concerned the alleged unfair dismissal of the applicant by the respondent after the applicant was found guilty of sexual misconduct as well as the use of foul language and corporal punishment and subsequently dismissed. I am to determine whether the dismissal of the applicant was procedurally and substantively fair.
7. Background to the Dispute
8. The applicant was an educator employed by the respondent at the time of his dismissal. He was charged with sexual misconduct in that it was alleged that during the period on or about January 2012 to July 2012 at De Vos Malan primary School, he sexually assaulted various learners from the same school. It must however be noted that at the time of the arbitration only one (1) learner was prepared to testify as the matter had “dragged on” for various years. In addition he was charged with using improper, disgraceful and unacceptable language towards the learners as well as corporal punishment.
9. The applicant was found guilty on all charges during a disciplinary hearing and was summarily dismissed on or about 04 December 2012. The applicant appealed the decision however he was not successful in his appeal and his dismissal was upheld The appeal outcome was received by the applicant on the 27th of January 2014.
10. During the arbitration all parties were allowed to cross-examine and re-examine witnesses during the presentation of their evidence. For the sake of concision the details of this will not be repeated in the award but it should not be construed that it was not considered. Furthermore, the parties agreed to submit the closing arguments in writing.
11. In addition it is a requirement of the Labour Relations Act in section 138(7)(a) that the commissioner must issue an arbitration award with brief reasons, signed by that commissioner. For this reason only the salient points will be mentioned in the award. It is to be noted further, that despite this the submissions have been considered in detail in the writing of the award.
12. A bundle of documents common to both parties were submitted. The proceedings were digitally recorded therefore what appears hereunder constitutes a summary of the evidence deduced by the parties in so far as is relevant for the purpose of this arbitration and is by no means a minute of what transpired in the course of the proceedings.
13. The applicant’s representative contends that the chairperson of the disciplinary hearing “found the Applicant guilty of all 3 charges, but only imposed a sanction on charge 1 as there is no reference in his sanction as to sanctions for charge 2 and 3. Further, he finds the Applicant guilty to the alternative charge to charge 1 as well and added this to the sanction.” A ruling was issued stating that the applicant was dismissed for all 3 charges and a further application during this arbitration to rescind this ruling, was unsuccessful. I will therefore not entertain any arguments in this regard as the ruling has already dealt with the matter at hand.
14. Respondent’s Case
15. The Respondent called two (2) witnesses.
16. MW, the complainant in the matter, testified that she was the deputy head girl in Grade 7 when the incident occurred. She stated that on 30 May 2012 she left home at approximately 07:50am for school and arrived approximately 5 minutes later. She went to her register class, which is that of the applicant. She entered the classroom and greeted the applicant after which she went to her desk.
17. MW stated that the applicant called her forward and closed the door. He then came to her and told her that they must keep quiet after which he put his hand on her mouth. He then pulled her skirt and panty down and also pulled his pants down.
18. MW testified that the applicant then bent her down to the ground, opened her legs and lied on top of her. He then took his penis put it by her vagina. She stated that after he was finished he stood up and picked her up. He then pulled up her panty and skirt and he also got dressed. After that he opened the door and told her to go home.
19. MW then stated that she did not understand at the time of the incident what had occurred and that she was weak and just lay there until the applicant finished. She also confirmed that her vagina was wet and that when she got home she went to the bathroom to wipe herself. She stated that she never had that sticky wetness in her vagina before and that she did not know what it was.
20. MW confirmed that her brother was at home when she arrived there after the incident and that she was scared. She and her brother watched some movies. She went back to school the next day, on her birthday, and also completed the exams.
21. MW further testified that after the June/July school holidays she and 1 of her cousins went to the shop to buy some sweets and cool drinks. There was an incident with the shop owner regarding money for the goods and her brother had to be fetched to sort it out, as MW did not have money for the goods. Later that day her mother asked her if she was “ok” and what was going on with her but she did not want to talk. Her mother told her to go lie with her father on the bed.
22. MW stated that she had a very strong relationship with her father who had since passed away. She stated that she did not want to tell her parents, as she knew her dad would get very angry and that he would “do something” the applicant. She conformed that after a while her mother returned to the room and asked her if she was ready to talk. Her mother was very insistent and she then decided to tell them what happened in that the applicant was “stout” with her. They were very shocked and her dad looked angry.
23. MW confirmed that from there her parents reported the matter and that she had to see a doctor and that she had to make statements with the police. She also confirmed that the applicant would often swear at the learners in class as well as that he hit her, and other learners, with a “plank”. She further testified that, until the incident took place, she had a good relationship with the applicant and that here were no issues between them.
24. The witness was extensively cross-examined.
25. VEW, mother of the complainant MW, testified that she was aware of the “shop incident”. She remembered it happened on a Wednesday night. That morning MW was sick and that when she asked MW what was wrong, she replied that she had a headache. VEW were concerned and suspicious as MW also did not go to school on the Monday and the Tuesday and she was someone who loved going to school and loved her schoolwork.
26. VEW further stated that she asked MW why her friends were not visiting and why she was not querying regarding homework but that MW did not want to talk. As MW headache got worse she took her to the doctor however MW did not want the doctor to examine her and she had to take MW to her grandmother.
27. VEW testified that when she got home later MW and her cousin told her about the “shop incident”. VEW could see something was wrong with MW and as he did not respond to her questions she told her to go to her father as they had a very strong relationship. After a while she went to MW where she was with her father and asked her whether she was ready to talk. She stated that MW was hysterical and told them that “die meneer het my stout gemaak”. She recalled that at that point MW identified the applicant as the “meneer”.
28. VEW confirmed that she and her husband were shocked and then went on to report the matter as required.
29. The witness was extensively cross-examined.
30. Applicant’s Case
31. The Applicant’s representative called four (4) witnesses, including the applicant, to testify.
32. LDD, a fellow learner of the complainant MW at the time of the incident, testified that he was “pretty sure” that MW was at school on 30 May 2012 as it was her birthday the next day.
33. The witness was cross-examined.
34. Mrs. Glenda Belinda Malan testified that she was the first SAPS officer who took a statement form the complainant MW. She stated that she administered the oath and that as the affidavit reads is what she took down from MW. She confirmed that the docket is then sent to the relevant section, the sexual offences unit, who then takes the matter further.
35. The witness was extensively cross-examined.
36. Mr. Hewbury Quentis José Witbooi, the applicant, testified that he’s been an educator with the respondent since 01 January 1990. He stated that he denies all the allegations of sexual misconduct against him, as it never happened.
37. He stated that in terms of the rude language towards learners he did “swear at learners, in retaliation only and only to a bunch of rude boys who used to taunt him outside his class. In terms of corporal punishment he stated that he used a ruler to tap students on their hands however he was aware of various other educators at the same school who used corporal punishment however they were never disciplined in any way.
38. The applicant testified that he could not specifically recall the 30th of May 2012 however his usual routine would be to arrive at approximately 07:45am, sign in, go to the bathroom, take his bag to the classroom and then go to the tarmac where the students gather when school starts. The applicant in no uncertain terms stated that he never raped MW and that no such incident ever occurred. He further stated that according to the class register MW was at school and that he usually completed it at about 9am – 9:30am. He stated that he was MW class teacher and that after the alleged incident she continued to attend his class, assist him with some class duties and that he supervised her exams.
39. The applicant stated that the charges were vague, no dates and times of incidents were provided and that not witness statements were provided. He only heard the evidence as the witnesses testified. He was therefore in no position to properly prepare for the disciplinary hearing.
40. The witness was extensively cross-examined.
41. Mrs. Samantha Nadia Mclean testified that she took the second statement from MW regarding the alleged “rape”. She stated that she remembered that MW was not comfortable giving a statement at her home and therefore she arranged for a statement to be taken at her office. She testified that she was trained to take statements from victims of family violence as well as sexual offences.
42. The witness was extensively cross-examined. I would like to note that the witness testified that it often happens that he second statement has a lot more detail than the first as she is trained to obtain all the relevant information pertaining to the alleged “rape”.
43. Analysis of Evidence and argument
44. This is a summary of the relevant evidence and does not reflect all of the evidence and arguments heard and considered in reaching my decision on this matter. Both parties submitted closing arguments, which were duly considered. As the closing arguments are on record I will not reiterate arguments heard and considered in reaching my decision on this matter.
45. Since dismissal is not in dispute, it is the Respondent who bears the onus of proving that the dismissal of the Applicant was procedurally and substantively fair in terms of Section 185(a) of the Act, which fortifies the employee's constitutional right to fair labour practice, and guarantees employees a right not to be unfairly dismissed. It is in dispute whether or not applicant is guilty of any misconduct and whether or not the hearing was fair in terms of procedure. It is common cause that in the event that the applicant is guilty of the alleged sexual misconduct, dismissal is an appropriate sanction.
46. Section 188 of the Act recognizes the conduct of the employee as one of the broad reasons on which his dismissal could be justified. Section 188(1) requires that if misconduct is the reason for dismissal it must be a fair reason. Schedule 8, item 7, provides that a when considering the substantive fairness of a dismissal for misconduct, one must consider the following:
a. whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
b. if a rule or standard was contravened, whether or not –
i. the rule was a valid or reasonable rule or standard;
ii. the employee was aware, or could reasonably be expected to have been aware of the rule or standard;
iii. the rule or standard has been consistently applied by the employer; and
iv. dismissal was an appropriate sanction for the contravention of the rule or standard.”
47. The charge/s relate Section 17 of the Employment of Educator’s Act 76 of 1998 as amended (hereinafter the EEA) and are therefore not only valid but is also legislated. It is therefore very clear that these rules are not only valid and reasonable, but that any educator is aware or could reasonably be expected to be aware of not only the EEA but also the specific misconduct contemplated in this instance by Sections 17 of the EEA. There is also no evidence before me that the respondent has not applied the rule or standard consistently except for the matter of corporal punishment.
48. There are therefore, except for the consistency claims regarding corporal punishment, only two questions that need to be answered. Firstly whether or not the applicant has contravened any of these rules as per the charge sheet and secondly whether or not the hearing was conducted fairly in terms of procedure.
49. In terms of substance this matter essentially turns on dispute of fact. The Labour Court had occasion to remark on the appropriate manner for a commissioner to deal with such disputes. In Sasol Mining (Ply) Ltd v Nggelenl and others (Case No: JR 1595/08), Van Niekerk J highlighted that the duty of a commissioner Is to assess the credibility of a witness, consider the inherent probability or improbability of the version that is proffered by the witness as well as an assessment of the probabilities of the irreconcilable versions before the commissioner.
50. In SFW Group Ltd and another v Martell et Cle and others 2003 (1) SA 11 (SCA);
a. "On the central issue ... there are two irreconcilable versions. The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarized as follows. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses); (b) their reliability; and (c) the probabilities. As to (a), the court's finding on the credibility of a particular witness will depend on its impression about the veracity or the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness' candour and demeanour in the witness box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, (v) the probability or improbability of particular aspects of his version, (vi) the caliber and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness' reliability will depend, apart from the other factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of tile probability or improbability of each party's version on each of the disputed issues. In the light of the assessment of (a), (b) and (e) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it."
51. In addition the credibility of the witnesses and the improbability of what they say should not be regarded as a separate enquiry to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the versions. Where reliance is placed on circumstantial evidence, the inference sought to be drawn must be consistent with all the proven facts and the inference must be the most readily apparent and acceptable inference from a number of possible inferences.
52. In observing all the witnesses as they testified I was satisfied with the evidence of MW and her mother VEW. Despite contradictions and inconsistencies about peripheral issues their evidence was consistent with the probabilities. Their evidence was satisfactory in all material respects. I found them to be reliable and credible witnesses.
53. There was no plausible reason why they would fabricate the evidence they gave against applicant. I am not in agreement with the applicant’s representative argument that the “shop incident” was such a big event that MW would fabricate a “rape” to stay out of trouble for such an incident. This is not plausible at all. I never gained the impression that they embellished or exaggerated their evidence. They were both taken under extensive cross-examination by applicant’s representative, who is an experienced and skillful cross-examiner, but did not deviate in any material respect from the essence of their version. Even though children may lie on a daily basis regarding mundane matters, this does not make them dishonest in nature nor does it in any way indicate that they would lie about something as serious as a “rape”.
54. In terms of evaluating the evidence before me, it is an established principle that the evidence of children, especially young children, should be treated with caution and that one must fully appreciate the dangers inherent in the acceptance of such evidence. The younger the child is the more the need to apply caution.
55. This does not however mean that the evidence of children must be above any criticism. It requires only that the evidence accepted should be substantially satisfactory in relation to material issues. There is no rigid rule that corroboration must always be present before a child’s evidence is accepted. What is required of a presiding officer is a detailed evaluation, not confined to demeanour, of the extent to which the evidence of a child could be regarded as reliable and acceptable. A guide as to how this issue should be approached, is provided in Woji v Santam Insurance Co Limited:
a. “Trustworthiness, as is pointed out by Wigmore…depends on factors such as the child’s power of observation, his power of recollection, and his power of narration on the specific matter to be testified. In each instance the capacity of the particular child is to be investigated. His capacity of observation will depend on whether he appears “intelligent enough to observe”. Whether he had the capacity of recollection will depend again on whether he has sufficient years of discretion “to remember what occurs” while the capacity of narration or communication raises the question whether the child has “the capacity to understand the questions put, and to frame and express intelligent answers”…. There are other factors as well which the Court will take into account in assessing the child’s trustworthiness in the witness-box. Does he appear to be honest – is there a consciousness of the duty to speak the truth? Then also “the nature of the evidence given by the child may be of a simple kind and may relate to a subject-matter clearly within the field of its understanding and interest and the circumstances may be such as practically to exclude the risks arising from suggestibility” (per Schreiner JA in R v Manda)”.
56. I was mindful of the cautionary rule throughout complainant’s evidence and when I later assessed her evidence when writing this award. Despite the cautionary rule, I am of the view that her evidence was reliable and truthful and that I can rely on it. In all proceedings thus far, including police statements, the material details regarding the alleged ”rape” by MW remained unswerving yet the defense of the applicant has changed from forum to forum which clearly, in all probability, points to the applicant not being truthful. In addition her MW mother’s testimony as to how events unfolded up to when MW told them about the incident corroborates the evidence before me.
57. Further to this aspect the Constitutional Court has recognised that sexual misconduct where children are involved generally takes place behind closed doors and is committed by a person in a position of authority over the child and that it is difficult to obtain eye-witness corroboration. This case is no different. Nobody else was present when the alleged misconduct took place. The complainant is therefore a single witness.
58. The single witness rule as applied in criminal proceedings and, which calls for a cautionary approach, requires that the evidence of a single witness should not be relied on unless the evidence of the single witness is clear and satisfactory in every material respect or unless there is corroboration for his evidence. One aspect of the single witness rule as applied in criminal cases, which is often overlooked by those who want to rely on the single witness rule, is that where there is corroboration of a witness to some extent, even of a limited nature, a witness cannot be said to be a single witness anymore. Corroboration does not presuppose that there should be other evidence of the actual commission of the crime. All that is necessary is that there should be supporting evidence in a material respect. It further needs to be noted that even in criminal proceedings the cautionary rule relating to the evaluation of the evidence of a single witness is nowadays much less strict than years ago. What is required is that a court or tribunal:
a. “ should weigh the evidence of the single witness and consider its merits and demerits and, having done so, should decide whether it is satisfied that the truth has been told despite the shortcomings or defects or contradictions in the evidence” (emphasis added).
59. There is considerable authority for the proposition that the single witness rule is only applicable in criminal trials and not applicable in civil proceedings and arbitration proceedings. It is however accepted that even if the rule is not applicable in civil proceedings or arbitration proceedings, a presiding officer or arbitrator must nevertheless be satisfied that the evidence of a single witness is reliable and trustworthy before relying on it.
60. In this matter there is there is corroboration of a witness to some extent, even of a limited nature but for me in a material aspect, and therefore MW cannot be said to be a single witness. The fact that MW and her mother confirmed how the events unfolded on the day she told her parents about the incident, is corroborating in a limited nature and for me in a material aspect. I was satisfied that that the evidence of MW was reliable and trustworthy and that she gave this evidence in a clear and satisfactory manner.
61. I was not impressed with the applicant’s testimony as he merely denied and refuted all of the evidence before me regarding the substance of the matter. In addition he was unable to explain as to why MW would fabricate the alleged rape. When eventually pressed for an answer during cross-examination he did come up with some “bizarre” explanation/s none of which was put to MW or any other witness and therefore cannot be accepted.
62. During cross-examination of respondent’s witnesses and during closing arguments, the applicant’s representative highlighted contradictions and inconsistencies in the evidence of complainant and respondent’s other witnesses.
63. I am satisfied with the evidence of these witnesses in that, despite the contradictions and inconsistencies about peripheral issues, their evidence was consistent with the probabilities. In my view their evidence was satisfactory in all material respects. I am mindful of the fact that with time memories fade and people tend to forget things. Certain aspects of the events may fade, and the witness may in the later hearing no longer recall certain aspects, until they are reminded of what they had said previously. This is not a sign of untruthfulness but simply a reality of life. People sometimes forget certain things.
64. We must further remind ourselves that it is traumatic for a child to experience any form of sexual abuse, and that children often subconsciously try to suppress sordid details and forget about unpleasant events in their lives. This complainant is no different in that regard and this could further explain why they may forget certain details, until they are reminded about it.
65. It is important to understand that where there are contradictions between the evidence of witnesses or internal contradictions in the evidence of a witness, not every error made by a witness affects their credibility. In each case the trier of fact has to make an evaluation, taking into account such matters as the nature of the contradictions, their number and importance, and their bearing on other parts of the witness's evidence. The question to be determined is not whether a witness is wholly truthful in all they say, but whether the court or arbitrator can be satisfied that the story that the witness tells is a true one in its essential features.
66. Although there were contradictions and inconsistencies in the versions of respondent’s witnesses, this is exactly what should be expected when honest witnesses who did not collude, are expected to testify about events that happened some time ago. I am satisfied that none of the contradictions and inconsistencies negatively impacted on the credibility of respondent’s two witnesses. In fact, if the contradictions and inconsistencies about peripheral issues proved anything then it supports the inference that the witnesses are truthful and that they did not discuss the case with each other to fabricate a false version against the applicant. Had they been malicious witnesses who wanted to concoct a fabricated version against applicant, then surely they would have ensured that their versions were in all material respects the same. In this regard Hiemstra J remarked:
a. "Wanneer verskillende getuies 'n relaas van gebeurtenisse wat hulle waargeneem het, gee, dan is dit heeltemal natuurlik dat hulle weergawes op kleiner besonderhede van mekaar sal verskil. Dit sal inderdaad agterdogtig wees as getuies op sulke getuienispunte ooreenstem, en die verdenking skep dat hulle met mekaar ooreengekom het om 'n sekere weergawe te gee”.
67. There is no plausible reason why the complainant would have fabricated the evidence that she had given against applicant. I am therefore satisfied that the complainant never had anything to gain from her complaint or from the outcome of these proceedings.
68. The Constitutional Court, in Sidumo & others v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC), held that:
a. "in approaching the dismissal dispute impartially, a commissioner will take into account the totality of the circumstances (my emphasis).
69. In terms of the matter of consistency for corporal punishment it is clear that the respondent presented no evidence to counter the claims of inconsistency. In terms of the uncontested evidence before me I must accept that there is inconsistency in this regard. The courts distinguish between two types of inconsistency namely historical inconsistency and contemporaneous inconsistency. Historical inconsistency occurs when an employer has, in the past and as a matter of practice, not dismissed employees or imposed a specific sanction for contravention of a specific disciplinary rule. Contemporaneous inconsistency occurs when two or more employees engage in the same or similar conduct at roughly the same time, but only one or some of them are disciplined, or where different penalties are imposed on some of them. Historical inconsistency applies in this matter. The basis for the principle governing the need for consistency in discipline was laid in Gcwensha versusCCMA & others (2006), where it was stated that “disciplinary consistency is the hallmark of progressive labour relations that every employee must be measured by the same standards.” The court also went on to say that “when comparing employees, care should be taken to ensure that the gravity of the misconduct be evaluated. Even though the applicant is guilty of this charge the matter of inconsistency may be grounds for substantive unfairness however in light of the finding regarding sexual misconduct, I will not pursue and/or address this matter further.
70. In terms of procedural fairness, I do not agree with the arguments of the applicant’s representative. In Avril Elizabeth Home for the Mentally Handicapped v CCMA & others (2006) 27 ILJ 1644 (LC) the Court pointed out that the Act itself is silent on the content of the right to procedural fairness. The Code is a fundamental departure from the ‘criminal justice’ model developed under the 1956 LRA. The rules introduced in 1995 did not replicate the criminal justice model of procedural fairness. The court concluded that there was no legal basis for the application of the rule against bias that the commissioner had applied. The judgment further stated that:
“There is clearly no place for formal disciplinary procedures that incorporate all of the accoutrements of a criminal trial, including the leading of witnesses, technical and complex ‘charge sheets’, requests for particulars, the application of the rules of evidence, legal arguments, and the like.”
71. To sum up in terms of the LRA, a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do but simply to decide whether what the employer did was fair. In arriving at a decision, a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.
72. In this case the version of respondent is more probable, and not that of applicant.
73. Consequently, I find that the dismissal of the applicant was procedurally and substantively fair.
74. In light of the above I make the following award.
AWARD
1. The dismissal of the applicant, H.Q.J Witbooi, was procedurally and substantively fair;
2. The ELRC is directed to forward a copy of this award to SACE. The attention of SACE is drawn to the fact that an educator has sexually assaulted a learner;
3. There is no order as to costs.
Mr. C. VD Berg
ELRC Commissioner
Port Elizabeth
Province: Eastern Cape
Applicant: H.Q.J. WITBOOI
Respondent: Department of Education – Eastern Cape
Issue: Unfair Dismissal - Misconduct
Award Date: 5 April 2018
Arbitrator: C van der Berg
Date: 05 April 2018
Case No: PSES 227-14/15 EC
In the matter between
H.Q.J. WITBOOI Applicant
and
DEPARTMENT OF EDUCATION EASTERN CAPE Respondent
PANELIST: Mr. C. Van Der Berg
ARBITRATION: Various dates in 2016 and concluded in January 2018
ARBITRATION AWARD
1. Details of hearing and representation
2. The arbitration hearing took place at various venues within Port Elizabeth on various dates during 2016 and concluded in January 2018 when closing arguments were submitted. Mr. W. van Rensburg, as instructed by Mr. W.G. Hicken, represented the applicant whilst Advocate I. Dala, with the State Attorney as instructing attorney, represented the respondent. The matter was then concluded on 24 November 2017 and the parties agreed to submit their closing arguments in writing.
3. As one of the witnesses was a minor, her evidence was obtained through the assistance of an intermediary. In respect of the other witnesses, after explaining to each of them what the process was to entail and having satisfied myself that they understood the process, I proceeded with the evidence.
4. In order to protect the identity of the minor complainant and witness, her name and the name/s of any family member that may have testified during this or any other proceedings, will not be revealed and they will be referred to by their initials throughout the award.
5. Issue to be decided
6. The arbitration proceeding concerned the alleged unfair dismissal of the applicant by the respondent after the applicant was found guilty of sexual misconduct as well as the use of foul language and corporal punishment and subsequently dismissed. I am to determine whether the dismissal of the applicant was procedurally and substantively fair.
7. Background to the Dispute
8. The applicant was an educator employed by the respondent at the time of his dismissal. He was charged with sexual misconduct in that it was alleged that during the period on or about January 2012 to July 2012 at De Vos Malan primary School, he sexually assaulted various learners from the same school. It must however be noted that at the time of the arbitration only one (1) learner was prepared to testify as the matter had “dragged on” for various years. In addition he was charged with using improper, disgraceful and unacceptable language towards the learners as well as corporal punishment.
9. The applicant was found guilty on all charges during a disciplinary hearing and was summarily dismissed on or about 04 December 2012. The applicant appealed the decision however he was not successful in his appeal and his dismissal was upheld The appeal outcome was received by the applicant on the 27th of January 2014.
10. During the arbitration all parties were allowed to cross-examine and re-examine witnesses during the presentation of their evidence. For the sake of concision the details of this will not be repeated in the award but it should not be construed that it was not considered. Furthermore, the parties agreed to submit the closing arguments in writing.
11. In addition it is a requirement of the Labour Relations Act in section 138(7)(a) that the commissioner must issue an arbitration award with brief reasons, signed by that commissioner. For this reason only the salient points will be mentioned in the award. It is to be noted further, that despite this the submissions have been considered in detail in the writing of the award.
12. A bundle of documents common to both parties were submitted. The proceedings were digitally recorded therefore what appears hereunder constitutes a summary of the evidence deduced by the parties in so far as is relevant for the purpose of this arbitration and is by no means a minute of what transpired in the course of the proceedings.
13. The applicant’s representative contends that the chairperson of the disciplinary hearing “found the Applicant guilty of all 3 charges, but only imposed a sanction on charge 1 as there is no reference in his sanction as to sanctions for charge 2 and 3. Further, he finds the Applicant guilty to the alternative charge to charge 1 as well and added this to the sanction.” A ruling was issued stating that the applicant was dismissed for all 3 charges and a further application during this arbitration to rescind this ruling, was unsuccessful. I will therefore not entertain any arguments in this regard as the ruling has already dealt with the matter at hand.
14. Respondent’s Case
15. The Respondent called two (2) witnesses.
16. MW, the complainant in the matter, testified that she was the deputy head girl in Grade 7 when the incident occurred. She stated that on 30 May 2012 she left home at approximately 07:50am for school and arrived approximately 5 minutes later. She went to her register class, which is that of the applicant. She entered the classroom and greeted the applicant after which she went to her desk.
17. MW stated that the applicant called her forward and closed the door. He then came to her and told her that they must keep quiet after which he put his hand on her mouth. He then pulled her skirt and panty down and also pulled his pants down.
18. MW testified that the applicant then bent her down to the ground, opened her legs and lied on top of her. He then took his penis put it by her vagina. She stated that after he was finished he stood up and picked her up. He then pulled up her panty and skirt and he also got dressed. After that he opened the door and told her to go home.
19. MW then stated that she did not understand at the time of the incident what had occurred and that she was weak and just lay there until the applicant finished. She also confirmed that her vagina was wet and that when she got home she went to the bathroom to wipe herself. She stated that she never had that sticky wetness in her vagina before and that she did not know what it was.
20. MW confirmed that her brother was at home when she arrived there after the incident and that she was scared. She and her brother watched some movies. She went back to school the next day, on her birthday, and also completed the exams.
21. MW further testified that after the June/July school holidays she and 1 of her cousins went to the shop to buy some sweets and cool drinks. There was an incident with the shop owner regarding money for the goods and her brother had to be fetched to sort it out, as MW did not have money for the goods. Later that day her mother asked her if she was “ok” and what was going on with her but she did not want to talk. Her mother told her to go lie with her father on the bed.
22. MW stated that she had a very strong relationship with her father who had since passed away. She stated that she did not want to tell her parents, as she knew her dad would get very angry and that he would “do something” the applicant. She conformed that after a while her mother returned to the room and asked her if she was ready to talk. Her mother was very insistent and she then decided to tell them what happened in that the applicant was “stout” with her. They were very shocked and her dad looked angry.
23. MW confirmed that from there her parents reported the matter and that she had to see a doctor and that she had to make statements with the police. She also confirmed that the applicant would often swear at the learners in class as well as that he hit her, and other learners, with a “plank”. She further testified that, until the incident took place, she had a good relationship with the applicant and that here were no issues between them.
24. The witness was extensively cross-examined.
25. VEW, mother of the complainant MW, testified that she was aware of the “shop incident”. She remembered it happened on a Wednesday night. That morning MW was sick and that when she asked MW what was wrong, she replied that she had a headache. VEW were concerned and suspicious as MW also did not go to school on the Monday and the Tuesday and she was someone who loved going to school and loved her schoolwork.
26. VEW further stated that she asked MW why her friends were not visiting and why she was not querying regarding homework but that MW did not want to talk. As MW headache got worse she took her to the doctor however MW did not want the doctor to examine her and she had to take MW to her grandmother.
27. VEW testified that when she got home later MW and her cousin told her about the “shop incident”. VEW could see something was wrong with MW and as he did not respond to her questions she told her to go to her father as they had a very strong relationship. After a while she went to MW where she was with her father and asked her whether she was ready to talk. She stated that MW was hysterical and told them that “die meneer het my stout gemaak”. She recalled that at that point MW identified the applicant as the “meneer”.
28. VEW confirmed that she and her husband were shocked and then went on to report the matter as required.
29. The witness was extensively cross-examined.
30. Applicant’s Case
31. The Applicant’s representative called four (4) witnesses, including the applicant, to testify.
32. LDD, a fellow learner of the complainant MW at the time of the incident, testified that he was “pretty sure” that MW was at school on 30 May 2012 as it was her birthday the next day.
33. The witness was cross-examined.
34. Mrs. Glenda Belinda Malan testified that she was the first SAPS officer who took a statement form the complainant MW. She stated that she administered the oath and that as the affidavit reads is what she took down from MW. She confirmed that the docket is then sent to the relevant section, the sexual offences unit, who then takes the matter further.
35. The witness was extensively cross-examined.
36. Mr. Hewbury Quentis José Witbooi, the applicant, testified that he’s been an educator with the respondent since 01 January 1990. He stated that he denies all the allegations of sexual misconduct against him, as it never happened.
37. He stated that in terms of the rude language towards learners he did “swear at learners, in retaliation only and only to a bunch of rude boys who used to taunt him outside his class. In terms of corporal punishment he stated that he used a ruler to tap students on their hands however he was aware of various other educators at the same school who used corporal punishment however they were never disciplined in any way.
38. The applicant testified that he could not specifically recall the 30th of May 2012 however his usual routine would be to arrive at approximately 07:45am, sign in, go to the bathroom, take his bag to the classroom and then go to the tarmac where the students gather when school starts. The applicant in no uncertain terms stated that he never raped MW and that no such incident ever occurred. He further stated that according to the class register MW was at school and that he usually completed it at about 9am – 9:30am. He stated that he was MW class teacher and that after the alleged incident she continued to attend his class, assist him with some class duties and that he supervised her exams.
39. The applicant stated that the charges were vague, no dates and times of incidents were provided and that not witness statements were provided. He only heard the evidence as the witnesses testified. He was therefore in no position to properly prepare for the disciplinary hearing.
40. The witness was extensively cross-examined.
41. Mrs. Samantha Nadia Mclean testified that she took the second statement from MW regarding the alleged “rape”. She stated that she remembered that MW was not comfortable giving a statement at her home and therefore she arranged for a statement to be taken at her office. She testified that she was trained to take statements from victims of family violence as well as sexual offences.
42. The witness was extensively cross-examined. I would like to note that the witness testified that it often happens that he second statement has a lot more detail than the first as she is trained to obtain all the relevant information pertaining to the alleged “rape”.
43. Analysis of Evidence and argument
44. This is a summary of the relevant evidence and does not reflect all of the evidence and arguments heard and considered in reaching my decision on this matter. Both parties submitted closing arguments, which were duly considered. As the closing arguments are on record I will not reiterate arguments heard and considered in reaching my decision on this matter.
45. Since dismissal is not in dispute, it is the Respondent who bears the onus of proving that the dismissal of the Applicant was procedurally and substantively fair in terms of Section 185(a) of the Act, which fortifies the employee's constitutional right to fair labour practice, and guarantees employees a right not to be unfairly dismissed. It is in dispute whether or not applicant is guilty of any misconduct and whether or not the hearing was fair in terms of procedure. It is common cause that in the event that the applicant is guilty of the alleged sexual misconduct, dismissal is an appropriate sanction.
46. Section 188 of the Act recognizes the conduct of the employee as one of the broad reasons on which his dismissal could be justified. Section 188(1) requires that if misconduct is the reason for dismissal it must be a fair reason. Schedule 8, item 7, provides that a when considering the substantive fairness of a dismissal for misconduct, one must consider the following:
a. whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
b. if a rule or standard was contravened, whether or not –
i. the rule was a valid or reasonable rule or standard;
ii. the employee was aware, or could reasonably be expected to have been aware of the rule or standard;
iii. the rule or standard has been consistently applied by the employer; and
iv. dismissal was an appropriate sanction for the contravention of the rule or standard.”
47. The charge/s relate Section 17 of the Employment of Educator’s Act 76 of 1998 as amended (hereinafter the EEA) and are therefore not only valid but is also legislated. It is therefore very clear that these rules are not only valid and reasonable, but that any educator is aware or could reasonably be expected to be aware of not only the EEA but also the specific misconduct contemplated in this instance by Sections 17 of the EEA. There is also no evidence before me that the respondent has not applied the rule or standard consistently except for the matter of corporal punishment.
48. There are therefore, except for the consistency claims regarding corporal punishment, only two questions that need to be answered. Firstly whether or not the applicant has contravened any of these rules as per the charge sheet and secondly whether or not the hearing was conducted fairly in terms of procedure.
49. In terms of substance this matter essentially turns on dispute of fact. The Labour Court had occasion to remark on the appropriate manner for a commissioner to deal with such disputes. In Sasol Mining (Ply) Ltd v Nggelenl and others (Case No: JR 1595/08), Van Niekerk J highlighted that the duty of a commissioner Is to assess the credibility of a witness, consider the inherent probability or improbability of the version that is proffered by the witness as well as an assessment of the probabilities of the irreconcilable versions before the commissioner.
50. In SFW Group Ltd and another v Martell et Cle and others 2003 (1) SA 11 (SCA);
a. "On the central issue ... there are two irreconcilable versions. The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarized as follows. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses); (b) their reliability; and (c) the probabilities. As to (a), the court's finding on the credibility of a particular witness will depend on its impression about the veracity or the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness' candour and demeanour in the witness box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, (v) the probability or improbability of particular aspects of his version, (vi) the caliber and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness' reliability will depend, apart from the other factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of tile probability or improbability of each party's version on each of the disputed issues. In the light of the assessment of (a), (b) and (e) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it."
51. In addition the credibility of the witnesses and the improbability of what they say should not be regarded as a separate enquiry to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the versions. Where reliance is placed on circumstantial evidence, the inference sought to be drawn must be consistent with all the proven facts and the inference must be the most readily apparent and acceptable inference from a number of possible inferences.
52. In observing all the witnesses as they testified I was satisfied with the evidence of MW and her mother VEW. Despite contradictions and inconsistencies about peripheral issues their evidence was consistent with the probabilities. Their evidence was satisfactory in all material respects. I found them to be reliable and credible witnesses.
53. There was no plausible reason why they would fabricate the evidence they gave against applicant. I am not in agreement with the applicant’s representative argument that the “shop incident” was such a big event that MW would fabricate a “rape” to stay out of trouble for such an incident. This is not plausible at all. I never gained the impression that they embellished or exaggerated their evidence. They were both taken under extensive cross-examination by applicant’s representative, who is an experienced and skillful cross-examiner, but did not deviate in any material respect from the essence of their version. Even though children may lie on a daily basis regarding mundane matters, this does not make them dishonest in nature nor does it in any way indicate that they would lie about something as serious as a “rape”.
54. In terms of evaluating the evidence before me, it is an established principle that the evidence of children, especially young children, should be treated with caution and that one must fully appreciate the dangers inherent in the acceptance of such evidence. The younger the child is the more the need to apply caution.
55. This does not however mean that the evidence of children must be above any criticism. It requires only that the evidence accepted should be substantially satisfactory in relation to material issues. There is no rigid rule that corroboration must always be present before a child’s evidence is accepted. What is required of a presiding officer is a detailed evaluation, not confined to demeanour, of the extent to which the evidence of a child could be regarded as reliable and acceptable. A guide as to how this issue should be approached, is provided in Woji v Santam Insurance Co Limited:
a. “Trustworthiness, as is pointed out by Wigmore…depends on factors such as the child’s power of observation, his power of recollection, and his power of narration on the specific matter to be testified. In each instance the capacity of the particular child is to be investigated. His capacity of observation will depend on whether he appears “intelligent enough to observe”. Whether he had the capacity of recollection will depend again on whether he has sufficient years of discretion “to remember what occurs” while the capacity of narration or communication raises the question whether the child has “the capacity to understand the questions put, and to frame and express intelligent answers”…. There are other factors as well which the Court will take into account in assessing the child’s trustworthiness in the witness-box. Does he appear to be honest – is there a consciousness of the duty to speak the truth? Then also “the nature of the evidence given by the child may be of a simple kind and may relate to a subject-matter clearly within the field of its understanding and interest and the circumstances may be such as practically to exclude the risks arising from suggestibility” (per Schreiner JA in R v Manda)”.
56. I was mindful of the cautionary rule throughout complainant’s evidence and when I later assessed her evidence when writing this award. Despite the cautionary rule, I am of the view that her evidence was reliable and truthful and that I can rely on it. In all proceedings thus far, including police statements, the material details regarding the alleged ”rape” by MW remained unswerving yet the defense of the applicant has changed from forum to forum which clearly, in all probability, points to the applicant not being truthful. In addition her MW mother’s testimony as to how events unfolded up to when MW told them about the incident corroborates the evidence before me.
57. Further to this aspect the Constitutional Court has recognised that sexual misconduct where children are involved generally takes place behind closed doors and is committed by a person in a position of authority over the child and that it is difficult to obtain eye-witness corroboration. This case is no different. Nobody else was present when the alleged misconduct took place. The complainant is therefore a single witness.
58. The single witness rule as applied in criminal proceedings and, which calls for a cautionary approach, requires that the evidence of a single witness should not be relied on unless the evidence of the single witness is clear and satisfactory in every material respect or unless there is corroboration for his evidence. One aspect of the single witness rule as applied in criminal cases, which is often overlooked by those who want to rely on the single witness rule, is that where there is corroboration of a witness to some extent, even of a limited nature, a witness cannot be said to be a single witness anymore. Corroboration does not presuppose that there should be other evidence of the actual commission of the crime. All that is necessary is that there should be supporting evidence in a material respect. It further needs to be noted that even in criminal proceedings the cautionary rule relating to the evaluation of the evidence of a single witness is nowadays much less strict than years ago. What is required is that a court or tribunal:
a. “ should weigh the evidence of the single witness and consider its merits and demerits and, having done so, should decide whether it is satisfied that the truth has been told despite the shortcomings or defects or contradictions in the evidence” (emphasis added).
59. There is considerable authority for the proposition that the single witness rule is only applicable in criminal trials and not applicable in civil proceedings and arbitration proceedings. It is however accepted that even if the rule is not applicable in civil proceedings or arbitration proceedings, a presiding officer or arbitrator must nevertheless be satisfied that the evidence of a single witness is reliable and trustworthy before relying on it.
60. In this matter there is there is corroboration of a witness to some extent, even of a limited nature but for me in a material aspect, and therefore MW cannot be said to be a single witness. The fact that MW and her mother confirmed how the events unfolded on the day she told her parents about the incident, is corroborating in a limited nature and for me in a material aspect. I was satisfied that that the evidence of MW was reliable and trustworthy and that she gave this evidence in a clear and satisfactory manner.
61. I was not impressed with the applicant’s testimony as he merely denied and refuted all of the evidence before me regarding the substance of the matter. In addition he was unable to explain as to why MW would fabricate the alleged rape. When eventually pressed for an answer during cross-examination he did come up with some “bizarre” explanation/s none of which was put to MW or any other witness and therefore cannot be accepted.
62. During cross-examination of respondent’s witnesses and during closing arguments, the applicant’s representative highlighted contradictions and inconsistencies in the evidence of complainant and respondent’s other witnesses.
63. I am satisfied with the evidence of these witnesses in that, despite the contradictions and inconsistencies about peripheral issues, their evidence was consistent with the probabilities. In my view their evidence was satisfactory in all material respects. I am mindful of the fact that with time memories fade and people tend to forget things. Certain aspects of the events may fade, and the witness may in the later hearing no longer recall certain aspects, until they are reminded of what they had said previously. This is not a sign of untruthfulness but simply a reality of life. People sometimes forget certain things.
64. We must further remind ourselves that it is traumatic for a child to experience any form of sexual abuse, and that children often subconsciously try to suppress sordid details and forget about unpleasant events in their lives. This complainant is no different in that regard and this could further explain why they may forget certain details, until they are reminded about it.
65. It is important to understand that where there are contradictions between the evidence of witnesses or internal contradictions in the evidence of a witness, not every error made by a witness affects their credibility. In each case the trier of fact has to make an evaluation, taking into account such matters as the nature of the contradictions, their number and importance, and their bearing on other parts of the witness's evidence. The question to be determined is not whether a witness is wholly truthful in all they say, but whether the court or arbitrator can be satisfied that the story that the witness tells is a true one in its essential features.
66. Although there were contradictions and inconsistencies in the versions of respondent’s witnesses, this is exactly what should be expected when honest witnesses who did not collude, are expected to testify about events that happened some time ago. I am satisfied that none of the contradictions and inconsistencies negatively impacted on the credibility of respondent’s two witnesses. In fact, if the contradictions and inconsistencies about peripheral issues proved anything then it supports the inference that the witnesses are truthful and that they did not discuss the case with each other to fabricate a false version against the applicant. Had they been malicious witnesses who wanted to concoct a fabricated version against applicant, then surely they would have ensured that their versions were in all material respects the same. In this regard Hiemstra J remarked:
a. "Wanneer verskillende getuies 'n relaas van gebeurtenisse wat hulle waargeneem het, gee, dan is dit heeltemal natuurlik dat hulle weergawes op kleiner besonderhede van mekaar sal verskil. Dit sal inderdaad agterdogtig wees as getuies op sulke getuienispunte ooreenstem, en die verdenking skep dat hulle met mekaar ooreengekom het om 'n sekere weergawe te gee”.
67. There is no plausible reason why the complainant would have fabricated the evidence that she had given against applicant. I am therefore satisfied that the complainant never had anything to gain from her complaint or from the outcome of these proceedings.
68. The Constitutional Court, in Sidumo & others v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC), held that:
a. "in approaching the dismissal dispute impartially, a commissioner will take into account the totality of the circumstances (my emphasis).
69. In terms of the matter of consistency for corporal punishment it is clear that the respondent presented no evidence to counter the claims of inconsistency. In terms of the uncontested evidence before me I must accept that there is inconsistency in this regard. The courts distinguish between two types of inconsistency namely historical inconsistency and contemporaneous inconsistency. Historical inconsistency occurs when an employer has, in the past and as a matter of practice, not dismissed employees or imposed a specific sanction for contravention of a specific disciplinary rule. Contemporaneous inconsistency occurs when two or more employees engage in the same or similar conduct at roughly the same time, but only one or some of them are disciplined, or where different penalties are imposed on some of them. Historical inconsistency applies in this matter. The basis for the principle governing the need for consistency in discipline was laid in Gcwensha versusCCMA & others (2006), where it was stated that “disciplinary consistency is the hallmark of progressive labour relations that every employee must be measured by the same standards.” The court also went on to say that “when comparing employees, care should be taken to ensure that the gravity of the misconduct be evaluated. Even though the applicant is guilty of this charge the matter of inconsistency may be grounds for substantive unfairness however in light of the finding regarding sexual misconduct, I will not pursue and/or address this matter further.
70. In terms of procedural fairness, I do not agree with the arguments of the applicant’s representative. In Avril Elizabeth Home for the Mentally Handicapped v CCMA & others (2006) 27 ILJ 1644 (LC) the Court pointed out that the Act itself is silent on the content of the right to procedural fairness. The Code is a fundamental departure from the ‘criminal justice’ model developed under the 1956 LRA. The rules introduced in 1995 did not replicate the criminal justice model of procedural fairness. The court concluded that there was no legal basis for the application of the rule against bias that the commissioner had applied. The judgment further stated that:
“There is clearly no place for formal disciplinary procedures that incorporate all of the accoutrements of a criminal trial, including the leading of witnesses, technical and complex ‘charge sheets’, requests for particulars, the application of the rules of evidence, legal arguments, and the like.”
71. To sum up in terms of the LRA, a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do but simply to decide whether what the employer did was fair. In arriving at a decision, a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.
72. In this case the version of respondent is more probable, and not that of applicant.
73. Consequently, I find that the dismissal of the applicant was procedurally and substantively fair.
74. In light of the above I make the following award.
AWARD
1. The dismissal of the applicant, H.Q.J Witbooi, was procedurally and substantively fair;
2. The ELRC is directed to forward a copy of this award to SACE. The attention of SACE is drawn to the fact that an educator has sexually assaulted a learner;
3. There is no order as to costs.
Mr. C. VD Berg
ELRC Commissioner
Port Elizabeth