Case Number: PSES 816-18/19MP
Applicant: MYABALALA V.C
Respondent: Department of Education Mpumalanga
Issue: Unfair Dismissal - Misconduct
Venue: Carolina Magistrate Court, Carolina, Mpumalanga Province
Award Date: 7 March 2019
Arbitrator: V. Madula
Case No. PSES 816-18/19MP
In the matter between
MYABALALA V.C Employee
MPUMALANGA DEPARTMENT OF EDUCATION Employer
DATE: 07 MARCH 2019
ARBITRATION AWARD (ENQUIRY BY ARBITRATOR)
1. Details of Hearing and Representation
1.1 This enquiry is conducted in terms of Section 188A of the Labour Relations Act, 66 of 1995 (the Act).
1.2 The hearing took place at Carolina Magistrate Court, Carolina, Mpumalanga Province, on 20 February 2019 at 9:00AM.
1.3 The employee, Myabalala V.C was represented by Mkhonto Patrick from South African Democratic Teachers Union (SADTU), while the employer, Mpumalanga Department of Education was represented by Jabli Sikhosana.
1.4 The proceedings were digitally voice recorded and conducted in English.
2. Issues to be decided
2.1 This was a disciplinary enquiry by an Arbitrator.
2.2 I must decide whether or not the employee is guilty of misconduct levelled against him.
2.3 I must determine an appropriate sanction, if the employee is found guilty as charged.
3.1 The employee was charged with the following charges of misconduct;
3.1.1Charge 1: He committed misconduct in terms of Section 17(1) (c) of the Employment of Educators Act, 76 of 1998 in that he had a sexual relationship with a learner by the name of Phindile Malaza who was in Grade 10D at Zinikeleni Secondary School, where he was employed as an Educator as from November 2017 until August 2018,
Alternative to charge 1: He committed misconduct in terms of Section 18(1) (q) of the Employment of Educators Act, 76 of 1998 in that while he was on duty as an Educator he conducted himself in an improper, disgraceful or unaccepted manner that led to Phindile Malaza, a Grade 10D learner at Zinikeleni Secondary School to attempt to commit suicide on or about the 6th August 2018, as he wanted to end the affair he had with her,
3.1.2 Charge 2: He committed misconduct in terms of Section 18(1) (g) of the Employment of Educators Act, 76 of 1998 in that he misused his position as an educator when he, in the company of other educators went to Phindile Malaza’s home on the 19th October 2018 at about 21H00 and intimidated her with her sister, Zodwa Malaza and
3.1.3 Charge 3: He committed misconduct in terms of Section 17(1) (c) of the Employment of Educators Act, 76 of 1998 in that he had a sexual relationship with a learner by the name of Nonkululeko Hleza who was in Grade 10C at Zinikeleni Secondary School as from August 2017 until January 2018, where he was employed as an Educator.
Alternative to charge 3: He committed misconduct in terms of Section 18(1) (q) of the Employment of Educators Act, 76 of 1998 in that while he was on duty he conducted himself in an improper, disgraceful or unaccepted manner when in 2017 he proposed love to Nonkululeko Hleza, a Grade 10C learner at Zinikeleni Secondary School, where he was employed as an educator.
3.2 The following were issues identified as common cause issues;
3.2.1 The employee is employed as CS1 Educator since 11 October 2017,
3.2.2 The employee is currently employed at Khungelwati Primary School
3.2.3 The employee was employed at Zinikeleni Secondary School when the misconduct happened and
3.2.4 The employee was charged with three charges of misconduct with two alternatives.
3.3 The employer submitted a bundle of documents which I marked MVC “A”
3.4 The employer representative, Mr Jabli Sikhosana has before reading the charges for record purposes indicated that he had a mandate from the employer that he should withdraw charges 1 and 3, but remains with their respective alternatives.
3.5 It was surprising that the employer representative decided to withdraw the two main charges which carried a mandatory sanction of Dismissal. There was no reason advanced by the employer representative for the withdrawal of those two charges.
4. Survey of the employee’s evidence and argument.
4.1 The employee made a plea of guilty to all the charges leveled against him and as such there was no evidence led by the employee.
5. Survey of the employer’s evidence and argument.
5.1 There was no evidence led by the employer, because the employee pleaded guilty to all the charges.
6. Mitigating factors.
The employee submitted the following mitigating factors;
6.1 The fact that he pleaded guilty, it is a remorseful act showing that he is prepared to change.
6.2 He is still very young of age.
6.3 When he entered the profession, he was only 22 years old.
6.4 Unfortunately he was not taken to any orientation. When he arrived in October 2017 orientation has already taken place.
6.5 That was his first offense.
6.6 They wanted to request that the young man be corrected and not to punish him.
6.7 The young teachers must be given a second chance.
6.8 They pleaded that the young man be given less sanction, Final Written Warning.
6.9 They will teach him that he stand for the parents.
7. Aggravating factors
7.1 As the Department of Education, they are facing serious challenges when it comes to relationship between teachers and learners. The Department view that as one of the serious offenses.
7.2 It is the responsibility of the Department to uproot and stop that offense from happening in their schools.
7.3 While the Department acknowledge the age of the Educator, the fact remains that he is a teacher who undergone training and also experience some practical teaching experience in their school. Being that, as a matter of fact, they will appeal that a serious sanction be imposed.
7.4 They proposed that an alternative to dismissal as a sanction be implemented, which is a three (3) months suspension without pay, but looking at the employee’s nature of employment, considering his age and also acknowledging that he pleaded guilty as a sign of remorse, they submitted that the sanction be suspended for twelve (12) months.
8. Appropriateness of the sanction.
8.1 The mitigating and aggravating factors submitted by the employee and employer respectively were considered. However the employee should understand that it did not need orientation for him to understand that he should not propose love to his child (learner). The employer indicated that it has challenges when it comes to a sexual relationship between educators and learners and it is its responsibility to uproot and stop this from happening in schools. However, the employer representative that the employee be given a sanction of three (3) months suspension without pay, which must be suspended for a year. It is confusing that the employer wanted to uproot and stop the behavior of educators having sexual relationship with learners at schools, but gave its representative a mandate to withdraw charges related to sexual relationship by educator towards learners. The employer went further to mandate its representative to propose a suspended sanction against an educator who was involved on misconduct which was of a sexual nature towards leaners.
8.2 The employee was charged with misconduct which are of sexual and/or romantic nature and he pleaded guilty thereof. Item 98 of the Education Labour Relations Council (ELRC) Practice Note: 1 of 2018 states that it would be rare that dismissal would not be the only appropriate sanction for misconduct of a sexual and/or romantic nature committed by an educator in respect of a learner. The Courts have been viewing this nature of misconduct in a very serious light, justifying summary dismissal. This was confirmed in Kok v CCMA (JR 2475 / 2010)  ZALCJJHB 45 (20 February 2015). The fact that the employee conceded to have committed misconduct of sexual nature towards learners, means that it should be the end with him. Educators are entrusted with the responsibility of taking good care of the learners and their conduct towards learners must always display that.
8.3 The other charge the employee pleaded guilty to, was related to Intimidation. The employee together with other Educators went to Phindile Malaza’s and intimidated her and her sister Zodwa Malaza. In Kabeya v CCMA and others (C 905/2015)  ZALCCT 44 handed down on 17 November 2016, the Court held that an employee making treats to others is guilty of Intimidation. Intimidation is viewed in a serious light and it worth a sanction of dismissal. The Educator failed to behave in a manner that does not bring the teaching profession into disrepute.
8.4 Section 28 (2) of the Constitution of the Republic of South Africa, 1996 (Bill of Rights) states that “A child’s best interests are of paramount importance in every matter concerning the child”. It is against this provision of the Constitution that children in schools must be protected from abuse by educators. Educators who are found to be abusing children in schools must be removed from the education system.
8.5 Schedule 8, item 3 (5) of the Labour Relations Act, 66 of 1995 as amended (LRA) states that “When deciding whether or not to impose the penalty of dismissal, the employer must in addition to the gravity of the misconduct consider factors such as the employee’s circumstances (including length of service, previous disciplinary records and personal circumstances), the nature of the job and the circumstances of the infringement itself”. The employment relationship between the employee, Myabalala and the employer, Mpumalanga Department of Education was that of trust. The employee as an Educator engaged in sexual relationship with learner to an extent that she attempted to commit suicide when he wanted to end the relationship. Educators must act in a proper and becoming way towards learners. The Labour Appeal Court held in Department of Home Affairs and another / Ndlovu and others (2014) ILJ 3340 LAC that in order to prove that the sanction of dismissal was appropriate, the employer must present evidence to prove breakdown in the employment relationship. Such evidence is not necessary where the breakdown is apparent from the nature of the offense and or circumstances. As alluded to somewhere supra, the charges of sexual nature and intimidation committed by an Educator towards learners are very serious and warrant dismissal. Any reasonable decision maker would have, given the same set of facts pronounced a sanction of dismissal. This is the approach the Constitutional Court adopted in Sidumo v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC).
9.1 I find that the employee, Myabalala V.C is guilty of all the charges leveled against him.
9.2 A sanction of dismissal be imposed against the employee, Myabalala V.C,
9.3 The employee, Myabalala V.C is found unsuitable to work with children in terms of Section 120(4) of the Children’s Act, 38 of 2005.