PSES 865-17/18 GP
PSES 865-17/18 GP
Award Date:
8 April 2019
Case Number: PSES 865-17/18 GP
Province: Gauteng
Applicant: Masina S
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Misconduct
Venue: Johannesburg Central District Office, Pimville Soweto
Award Date: 8 April 2019
Arbitrator: Kuvonakala Pretty Chavalala
Panelist/s: Kuvonakala Pretty Chavalala
Case No.: PSES 865-17/18 GP
Date of Award: 08 April 2019
In the ARBITRATION between:
Masina S
(Union / Applicant)
and
Department of Education Gauteng
(Respondent)
Union/Applicant’s representative: Mr. Thulani Ngcobo
Telephone: 0797032332
Applicant’s cell:
Email:
Respondent’s representative: Ms. Tania Motalib
Telephone: 083 226 1924
Telefax:
Email:
DETAILS OF HEARING AND REPRESENTATION
[1] This is the arbitration award between Masina S (hereinafter referred to as “the applicant”) and Department of Education Gauteng (hereinafter referred to as “the respondent”). The hearing concerned an alleged unfair dismissal dispute arising as a result of an alleged misconduct. The case was initially heard at palm-ridge Magistrates court and finalised at Johannesburg Central District Office, Pimville Soweto. It sat down on several occasions and was finalised on the 11 March 2019
[2] The applicant was represented by Mr Ngcobo from SADTU. The respondent was represented by Ms Motalib from the department of education.
[3] The complainant and her friend are minor and will be referred in the award as follows; Complainant as ER and her friend as RS. The services of an intermediary were utilised for the testimonies of these two witnesses.
[4] The applicant submitted a bundle of documents which was marked Bundle A. The respondent submitted a bundle which was marked Bundle R.
[5] Due to the fact that the case was previously heard on several occasions, the parties could not immediately submit their closing arguments and requested 14 days to submit. Both parties had until the 25 March 2019. By the 25 march 2019 I had received the applicant’s arguments. On the 22 March 2019, I received a request for extension from the respondent’s representative with valid reasons and I granted the extension. I never received same even up to the date of submission of my award to the council.
[6] The hearing was held in English and it was digitally and manually recorded.
ISSUES TO BE DECIDED
[7] I am required to decide if the applicant’s dismissal substantively fair and if not, the appropriate remedy.
BACKGROUND TO THE ISSUES TO BE DECIDED
[8] The applicant was employed by the respondent on a permanent position stationed Kenilworth Secondary School. He was so employed by the respondent since 22 August 2008 and stationed at the school since 1 September 2014. He was at a position of Educator Post Level 1. He was dismissed on the 05 February 2018.
[9] The applicant was charged of three counts of misconduct but was found guilty on two. The two that the applicant was found guilty on were formulated as follows:-
a) Allegation 1
It is alleged that on or around the 24 November 2016, at or near Kenilworth High School, you conducted yourself in an improper, disgraceful and unacceptable manner in that amongst others you kissed, hugged and touched ER (complainant), a learner inappropriately and unacceptably. In view of your actions, you are thus charged with misconduct in terms of section 18 (1) (q) of the Employment of Educators act 76 of 1998 as amended.
b) Allegation 2
It is alleged that between the period 2016 and 2017, at or near Kenilworth High School, you conducted yourself in an improper, disgraceful and unacceptable manner in that amongst others you were in an intimate relationship with ER (complainant), a learner at Kenilworth High School. In view of your actions, you are thus charged with misconduct in terms of section 18 (1) (q) of the Employment of Educators act 76 of 1998 as amended.
[10] The following were common cause issues:
a) The procedure that was followed for the dismissal was a fair procedure.
b) An appeal lodged against the outcome of the disciplinary hearing and the appeal confirmed the outcome and sanction of dismissal.
c) The case involved minors, however there was no challenge to the testimonial capacity of the minors.
d) The applicant was at school in the morning of the 24th November 2016.
e) The learner mentioned in allegation 1 and 2 is a learner at Kenilworth High School
[11] The following were issues in dispute:-
a) Commission of the offence.
b) That the applicant arrived at school and left early was denied by the respondent.
c) In the event of a guilty verdict, the sanction would be challenged
[12] The applicant sought retrospective reinstatement as a relief.
SUMMARY OF EVIDENCE AND ARGUMENT
The Respondent’s case
The Respondent called 3 witnesses as follows:-
First witness: E.R whose identity is withheld due to the fact that she is a leaner who was at the time of incident and testimony a minor (17 years). She testified under oath as follows:
[13] She is aware of the reason she was giving testimony. She is aware of the charges levelled against the applicant and can confirm that they involve her.
[14] The applicant was her teacher at Grade 8 in 2015. He taught her natural sciences. They had a normal teacher and student relationship which progressed in time. The applicant would hold her hand and call her ‘my girlfriend or wife’. She used to accompany him to the staffroom and assist him to carry whatever he would be carrying. They later exchanged numbers. They talked occasionally via texts.
[15] On the 24th November 2016 she went to school. It was a school day but there were few learners at the school due to the fact that they had finished writing their exams. She went to pay school fees. As she was leaving she saw the applicant at the ground and went to him. They talked and walked towards a classroom.
[16] They got to a class and found one Mr Ndlovu, an educator, sitting doing his work. The applicant sat on the teachers table and held her closer to him. He told her that she is wife and started kissing her. The kiss was a half lip and half chin. They moved to the desk behind Mr Ndlovu. The applicant held her upper body, waist and breasts.
[17] The applicant then got a phone call and whilst busy on the phone, she walked about the classroom. When he finished they held each other. They went outside and he asked if he wanted to go to another class at the back and she declined. He wanted to be alone with her but she did not want anything more. He asked if she was shy and she told him she just did not want to go. Mr Ndlovu finished and the three of them left at the same time.
[18] She cannot say she was in a relationship with the applicant. She was getting to know him. It was the first time he had kissed her on the 24th November 2016.
[19] She did not sit with him during breaks but he would pass by while she would be with RS, her friend. He would hold her hand in front of RS and tell her she is his wife.
[20] The issue came out when out when the principal found out. She did not report it. She has nothing against the applicant and she does not want to hurt him, she did not want him to be in the position he was in. She had a crush on him and does not have a vendetta against him.
[21] She confirmed that page 11 of bundle R was a screenshots of chats between her and the applicant. She stated that he applicant does not usually respond whatsApp messages.
[22] The applicant kissed her again around beginning of January 2017. The applicant is the one who sent the message on the 6th May 2017 written ‘hi darling’.
[23] The holding of hands would happen in public early in the morning while there were not many people in school. She is not sure if people could see them.
[24] She denied that she got the applicant’s phone number when the applicant sent a communiqué to the parents. She insisted that they exchanged numbers in 2015 so she could send him a music video. The applicant wanted a music video from her. They have chatted before but the messaged cleared when her phone got a virus.
[25] She went to school around 11:00 on the 24th November 2016 and she saw the applicant after 11am. She denied that the applicant was not at school after 11:00. She insisted the applicant did kiss her and touch her in the presence of Mr Ndlovu.
[26] She stated that she did not want to go with the applicant to another class to be alone with him because she thought more could have happened. She thought they probably would have had sex.
[27] Her mom found the tablet and she saw the messages and alerted the principal. The principal confronted her and she initially said nothing was going on between her and the applicant because she did not want to get the applicant into trouble.
[28] She did have a crush on the applicant but it developed as he held her hand saying she is his girlfriend. She insisted that he did hold her hand outside class where RS (her friend) and probably other people could also see.
[29] She conceded that she wrote in her statement the incident of the 24 November 2016 was a once off thing. She stated she did not write about the kiss in January 2017 because he did not hold/touch her body like he did on the 24 November 2016.
[30] She denied the version that the applicant was under the impression that he was chatting to another teacher when he texted ‘Hi darling’. The applicant had her number and he knew it’s her, otherwise it would mean he sent ‘hi darling’ to unknown numbers.
[31] She insisted that if indeed the applicant left then it means he went back to school because what she says happened indeed happened, it is the truth.
Second witness: RS, whose identity is withheld due to the fact that she is a leaner who was at the time of incident and testimony a minor (16 years). She testified under oath as follows:
[32] She knows what ER testified on because they are good friends. ER did tell her about the incident of the 24 November 2016. She was not there but she believes ER since they talk about everything and ER is an open person.
[33] She does not know of any grudge between ER and the applicant.
[34] She would hear the applicant say to ER ‘You are my girlfriend/ wife’. ER did tell her that she had a crush on the applicant. It started when the applicant used to hold her hand and tell her she is his wife. She does not know of other incidents that occurred except for the 24th November 2016 incident.
[35] She conceded that she would lie for her friend if she was to be in trouble with her parents but she would not do so when someone’s life is at stake. She would lie to ER’s mom and say does not have a boyfriend even if she does but she cannot lie in court about the case. She has no grudge against the applicant. She has no reason now to lie about the applicant; he would call ER his wife or girlfriend.
[36] She does not see anything wrong with having a crush on a person because a crush is a light emotion and it is a personal emotion and feeling and does not even have to be communicated to the person you have a crush on. She denied that she and her friend made the story up because the applicant did not respond to the crush. She stated that the applicant was not even aware of the fact that ER had a crush on him.
[37] She denied that she is lying to protect ER from her mom because it is her mom that found the chats and the mom could see that it was not ordinary chats.
Third witness: Mr Jabulani Morgan Radebe testified under oath as follows:
[38] He is employed by the respondent as an educator and he was the principal of Kenilworth high until 31 March 2018. He has now found another job at another school.
[39] He heard of the charges against the applicant. He knows that the applicant’s father died on 24 November 2016, the applicant reported it to him that very afternoon. The applicant was at school the whole day. It is not true that he left in the morning because he, the Principal controls the attendance book.
[40] It is clear on the attendance register on page 6 of the respondent’s bundle that he knocked in at 6:55 and knocked off at 14:45. The book is an accurate record of when someone knocked in and out. He takes the time-book from his office to the staffroom and let the teachers sign in in his presence the he takes it to his office in order to manage latecomers. It is not possible to sign for previous dates.
[41] The applicant was also at school on 25 November 2016. If someone has to leave on an emergency, he will notify the principal and leave. Within 5 days from the day of return, such a person must submit proof and he as the principal would take the proof to the district. The person at the district will capture it on the system before the witness leaves and it will appear on the leave record of that employee.
[42] Page 19 of bundle R shows the leave days that were approved for the applicant and it shows that he was absent from 14 to 15 November 2016 as per time table.
[43] It was put to him that the attendance register is not a true reflecting recording actual times of arrival and departure of educators which he denied. It was put to him that it appears from the attendance register, that educator Mamba from the 22 to the 24 November arrived for work at 15:00 and left at 7:00am which he accepted is incorrect. He stated that that the entry is erroneous, it is a mistake.
[44] He denied that teachers would sometimes skip dates and not sign the attendance but only sign a few days later for all other unsigned previous days. He denied that the applicant had signed the attendance register in 2017 for November December 2016 period.
[45] He conceded that according to the applicant’s exam time table on page 1 of Bundle A, the applicant was supposed to be writing exam on 23 November 2016. He however stated that the applicant was at school on the said date regardless of the timetable.
[46] He stated that not only does he manage attendance register but also the presence of educators at school. The applicant was indeed at school on the 23, 24 and 25 November 2016. Condolence money was collected and such monies were sent to the funeral of the applicant’s late father on the 25 November 2016. The applicant was at school and staff members did not know the directions to the where the funeral was and the applicant gave directions.
[47] It is not possible for the applicant to just leave before the principal arrived. The applicant was at school the whole day on the 24 November 2016. The applicant himself informed the witness about the passing of his father in the afternoon of the 24th of November 2016.
[48] He denied that Mr Mamba took the applicant home on the morning of 24 November 2016. He stated that Mr Mamba was one of the people who said they do not know the addresses of the applicant’s place of residence. He asked the staff member for directions because he did not want to give the condolence money to the applicant himself but preferred that the Committee and staff members pay homage to the applicant’s family.
[49] He has a good relationship with the applicant. The applicant is a good teacher and he would not lie against him. In fact if not for this aces he would work with him even the next day because he was a good teacher. He denied that the applicant signed leave form for the 24th November 2016
[50] He is aware that Mr Mamba was one of the people that were charged also for sexual assault.
APPLICANT’S CASE
The applicant called four witnesses as follows: -
First witness: Stephen Masina, the applicant testified under oath as follows:
[51] He was employed from the 1st September 2014 as a Maths and Physics teacher from grade 10 and 11 at Kenilworth Secondary school. In 2016, he was responsible for grade 8, 9 (natural science) and 12 (maths and Physics).
[52] He knows the student ER; she was his student in 2015 in Natural Sciences.
[53] On the 24th November 2016, he arrived at work around 06:45. He was usually the first to arrive at school and the attendance register book was usually in the staff room. He then received a call that his father had died at his home and he was still in the bedroom. Mr Mamba was already at school and he told him about the death of his father. He also told Aunty Vee, the general worker
[54] He went to the offices and the principal and his deputy were not there yet. He told the staff members that were there about the loss of his father. Mr Mamba offered to take him home, on their way, they met Mrs Radebe, the HoD and he told her about the loss and she undertook to inform the principal when he arrived.
[55] He and Mr Mamba left around 7:15 and they passed by the paramedic first and reported the incident. Paramedics drove behind them and got there to attend to the deceased. Mr Mamba then left for school. He advised the applicant to stay since the applicant was the only male person at home, the other people present were ladies.
[56] He did not go back to school the entire day. ER is lying about the incident. There is no way he would leave a place where there is a funeral and go back to school to kiss and touch a learner.
[57] He denied ever exchanging numbers with ER. He can see the whatsApp conversation as appears on the bundle R page 11. On the 03 May 2017 they had a school trip and he had put on traditional clothes. Most teachers were complementing him on how he looked. He does not usually open his whatsApp. He opened his whatsApp later and saw a message saying ‘hey, you looked nice today, he thought it was some of the female teachers that were complementing him, specifically he thought it was Ms Mkhwanazi.
[58] He responded by saying ‘hey darling’. Mrs Mkhwanazi is comfortable with the applicant. He did not have the number stored in his phone so he was not aware of exactly was the person who sent him the message. He certainly was not aware it was ER.
[59] According to him, there is nothing untoward about saying ‘hi darling’, it only goes to show that you are talking to someone you are comfortable with.
[60] It is not true that he held ER’s hand and called her “my wife/ girlfriend”. ER is known to him only as a student and she was his best learner. He was not aware that she had a crush on him.
[61] When he left on the 24 November 2016, he never returned until the 28 November 2016. He went for marking on the 29th November 2016.
[62] He conceded that the attendance register is signed in and out for the 24th and 25th November 2016. The teachers who were appointed for marking were told to sign the attendance register in advance for until school closed since they would not be around to sign it daily. Since he was not around from the 24 November 2019, he only got the information upon his return in 2017 that he should sign the register for all the dates in 2016 where he was not around. He signed for the 24 and 25 November 2016 although he knew he was at the funeral. He took it the school was just assisting him because the spaces were blank while it should have been written ‘absent’. It is indeed dishonesty but he had to follow the practice, he did a wrong thing because of the directive that was given to sign.
[63] He signed a leave from for the 25 November 2016. He does not know why his leave record does not show that he was on leave on the 25th November 2016. It could be because of the department’s own carelessness
[64] He denied that he is the one that told the principal about the death of his father. It is not true that the staff members did not know his address. The principal is in fact the first one to know his address since he had picked him up from the garage near his home some time back.
[65] The attendance register is always in the class room, it is not true that principal keeps it at his office, if so, where would he, the applicant, have gotten it to sign it since he was first to arrive at school.
[66] He denied ever kissing and touching ER. ER and her friend are just lying because ER had a crush on him as he has heard. He never had any altercation with ER, she was his best student. ER’s father even helped him to win a technology project. She heard from ER that her father is good with technology and he could help with some materials from the technology project
[67] He did nothing wrong and he wants reinstatement as a relief.
[68] When asked as to why ER would lie as they had no altercation and ER’s father had helped him, he stated that there must be a source for this problem, ER did not do this, it is not possible for a child to do this.
[69] It was put to him that ER did not report him but labour section of the respondent discovered it and he confirmed that Mr Majola from the department told him that they had ER’s tablet and messages between him and applicant were discovered.
[70] He was not aware he was talking to ER on those messages as he was not aware that ER had his number. He stated that there was no profile picture on the contact. He conceded that he would not have said ‘Hi Darling’ to a male person; he took it for granted that the person he was communicating with was female because a male person would not send him a message appreciating his look.
[71] When he left on the 24 November 2016 he did not call the principal because the principal most of the time does not open his phone. Further, it was not possible to think about that at the time.
[72] He conceded that the death certificate does not indicate the time of death and denied that his father died in the afternoon. He conceded that his surname differed from the deceased’s surname, he was not using his father’s surname
[73] The leave forms would ordinarily be filled by the secretary at the school; he would submit proof like timetable. When put to him that secretary can put number of days she wanted he stated that is how they were doing things. He stated that he submitted 1 leave form and when question further he stated that it was actually four leave forms, three for exams and 1 for the 25th November 2016. He did not submit leave form for the 24th because he signed in; he was waiting for the principal to guide him on that.
[74] His father was buried on the 10 December 2016 after marking. He conceded that the note he claims to have received advising him to sign the attendance register stated that people must sign attendance registers but it did not say they must lie. He conceded that he was careless in signing in for the 24th and 25th November 2016 because he was not at school. He conceded that it does not make sense that he would sign in for the 25th November 2016 while according to him, he had taken leave on that day.
Second witness: Irene Raymond Mamba testified under oath as follows:
[75] He was employed at Kenilworth Secondary school and was HOD of Maths and science in 2016. He knows the applicant as they are colleagues.
[76] He recalls the events of the 24 November 2016. He arrived at school in the morning around 7:00. He was on the phone. Masina signalled with his hand to tell him to wait. The applicant approached the witness and told him that his father had died and he had just received a call. He requested the witness to drop him off at home.
[77] The principal’s car was not there and they left around 7:20. On the way the applicant was calling different relatives and one of the relatives advised that they go straight to the paramedics. They went there and an ambulance drove behind them to the deceased’s place. The witness did not go inside, he just rushed back to school.
[78] The principal was at the staffroom when he arrived. He wanted to tell the principal of his whereabouts and the principal told him he knows because staff members had told him of the passing of the applicant’s father. Condolence was collected and he was asked to deliver the money on the Friday. He delivered the money alone on the Friday.
[79] The applicant was away from school for a couple of weeks. He never returned to school on that day of the 24th November 2016 and was not at work on the 25 November 2016.
[80] It happens that teachers do not sign in on the attendance register and are reminded to go and sign the time book days after. He conceded that this practice is not the normal practice at the school, normally, the attendance register is at the staffroom or the principal brings it to the staff room. The period would not exceed a week without signing and normally it would be two or three people who have not signed. He stated that the applicant also will have to have signed the time book in 2016 and not 2017 because the attendance register has to be signed before school closes.
[81] He stated that him and the applicant are just colleagues and are not friends. He conceded that he was charged of a similar issue regarding the same student and he had at the time of testifying been dismissed. He however denied that he was just lying in favour of the applicant.
[82] When he left with the applicant they did not meet any other person except for the security. It was put to him that the applicant had spoken about the HOD and the witness stated that he could not recall. The witness went alone to take the car and drove to the gate, the applicant found him at the gate.
[83] Under re-examination he stated that he was not sure of when the applicant signed the attendance register.
Third Witness: Julia Dikeledi Molokwane testified under oath as follows:
[84] She is an educator at Kenilworth Secondary school and has previously worked with the applicant.
[85] She is aware that the applicant lost his father in November 2016. She was in the staff room the day he got a call about the loss of his father, he went to the staffroom where there were few teachers and said that he had lost his father. Mr Mamba took him home that very same morning. The condolence money was collected and sent to the applicant’s family by Mr Mamba. She remembers that when he lost his mother, few staff members went but when he lost his father, Mamba went to deliver the condolence money.
[86] The applicant was not specifically telling her about the loss but telling the people that were there.
[87] She never expected him to have come back on the said date because culturally it would be wrong for him to go back to work. She conceded that she is Tswana and that their cultures may be different.
Fourth Witness: Rhulani Sibisi testified under oath as follows:
[88] He knows the applicant. The applicant is his cousin. He affectionately referred to the applicant’s father as Mkhulu. He stays nearer to Mkhulu’s place.
[89] He received a call from Mkhulu's house on the 24th November 2016 early in the morning. When he got there, Mkhulu was seemingly dead. He called the applicant who said he was entering the gate of the school. He told the applicant that his father had died. The applicant told him that he will first go into the school and will make a plan to go to Mkhulu’s place he wants to see if the principal is at school.
[90] He has previously been in the business of undertaking and he knew what needed to be done. He informed that applicant to pass by police station and paramedic before arriving at Mkhulu’s place. Within 45 minutes, the applicant had arrived with a certain gentlemen who was said to be a teacher also. The applicant never went back to school as they were together the whole day preparing for the funeral.
[91] He and the applicant are cousins because their mothers are sisters. He had been called to Mkhulu’s house by Nhlahla who was at the time at Mkhulu’s house. The applicant’s sisters arrived a little later.
[92] He knows the BI 1663 (notification of death) document that is completed at the scene of death and confirms that it would identify time of death. He would get a copy if required to.
ANALYSIS OF EVIDENCE AND ARGUMENT
[93] The In terms of Section 191 of the LRA, the dispute about an unfair dismissal may be referred to the council if parties to the dispute fall within the registered scope of the council.
[94] In terms of section 192(1) of the LRA, the employee bears the onus to prove the existence of dismissal. The respondent confirmed that the applicant was dismissed. The applicant challenged only the substance for the dismissal.
[95] In terms of section 188 of the Act, a dismissal is unfair if the employer fails to prove that the reason for dismissal is a fair reason related to the employee's conduct or capacity.
[96] Before I address the question of substantive fairness, I would like to state that I did require the last witness to produce the document BI 1663 and gave the directive that should it be found, the applicant’s representative must inform the council so that a further hearing be constituted and the last witness testify on the document. In the event it is not found, the parties to submit closing argument by the 25 March 2019. The document was not found and only closing arguments submitted.
[97] I further enquired as to why Mr Ndlovu was not called as a witness and the respondent stated that Mr Ndlovu did not want to get involved in the case and did not even testify at the disciplinary hearing. The respondent believed that it had a strong case against the applicant regardless of the fact that Mr Ndlovu was not called.
[98] Since this case involved testimony by minors, the service of an intermediary was utilised. The testimonial capacity of the minors was not questioned. I found during their evidence that they had the necessary testimonial capacity and their capacity never posed as a challenge during the entire arbitration.
[99] I further have to state that I have noted with understanding the fears of the applicant and the representative as were repeatedly raised in the closing arguments. Fears that with the scourge of sexual assaults in our country especially in schools, innocent people are likely to be found guilty. Presiding officers subconsciously being influenced by external forces like the news and all. It can be argued equally though that we live at a time where the scourge of educators being abused and subjected to all forms of derogation by learners is also on the rise. Where the moral degeneration of learners is daily on the news. I can be equally implored on not to judge the moral value of the complainants but the case. I can state that as a commissioner, I am enjoined by the Labour Relations Act to determine the dispute fairly in consideration of the material before me and at all times taking into account the purport and the spirit of the Constitution of South Africa. I am and have been alive to that duty even up till the time of this award.
[100] I now address question of substantive fairness.
[101] In terms of Schedule 8 of the Code, anyone determining the substantive fairness of a dismissal must determine: -
(a) Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the work-place; 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 with an appropriate sanction for the contravention of the rule or standard.
[102] The first charge that was levelled against the applicant was formulated as follows: Allegation 1 ‘It is alleged that on or around the 24 November 2016, at or near Kenilworth High School, you conducted yourself in an improper, disgraceful and unacceptable manner in that amongst others you kissed, hugged and touched ER (complainant), a learner inappropriately and unacceptably. In view of your actions, you are thus charged with misconduct in terms of section 18 (1) (q) of the Employment of Educators act 76 of 1998 as amended.’
[103] Section 18 (1) (q) provides ‘Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she—(q) while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner’;
[104] The applicant denied the commission of the offence at all. His version is that at the time of the said offence, he was not even at the school at all.
[105] It was common cause that the applicant reported for work on the 24th November 2016. What is at dispute is whether or not he left before knock off time and if he did at what time he left. This is paramount because the answer to this question will place or remove the applicant from the scene of the incident the applicant is charged with. I now address the question of whether the applicant was at the scene at the alleged time of the incident.
[106] While I agree, as argued by the applicant’s representative that the respondent bears the overall onus of proof, I have to state that this does not mean that the applicant can just fold his arms and wait to see if the respondent will discharge its onus. The evidentiary burden will from time to time shift between parties and their versions. For an example. If the applicant states he was not at a certain place at a specific time but at another like in this case, and the respondent places material evidence of his presence at that place, the evidentiary burden on his alibi shifts to the applicant.
[107] The complainant, ER testified that she saw him at the school ground around 11am and she went to him and the incident happened. She was an impressive witness and stood firm on her version.
[108] The principal testified that the applicant was at school on the 24th November 2016 the entire day. Further, the applicant himself told him about the death of his father and this he says was in the afternoon. He insisted that even if the applicant could say he erroneously signed, he could see the warm body and the applicant was at the school.
[109] The complainant’s friend RS could not testify as to the events of the 24 November 2016 except to the extent the issue was related to her by the complainant.
[110] The attendance register indicates that the applicant was at school from 6:45 to 14:55 on the 24 November 2016 and was at school on the 25 November 2016. The leave record does not show the applicant being absent on these two days. The evidence and the document is prima facie evidence of the applicant’s presence, although not to be taken on face value. It is sufficient enough to call for a rebuttal or shift the evidentiary burden to the applicant.
[111] In rebuttal, the applicant himself testified to having left before 7:30 in the morning. He told aunty Vee and also HoD Ms Radebe of the death of his father and that he was leaving. Mr Mamba offered to take him home. These two witnesses, who were at placed at the scene, were never called by the applicant. Even when versions were being put to the principal, he was only being told of Mr Mamba coming to testify that he saw and took applicant home on the 24 November 2016 early in the morning. He was never told that Aunty Vee, Ms Radebe and Ms Molokwane all saw him leave early in the morning. After the respondent closed its case, Ms Molokwane who was never even specifically, mentioned was called to testify. This denied the principal an opportunity to comment on Ms Molokwane’s evidence. The weight of Ms Molokwane’s evidence is thus affected.
[112] The applicant mentioned that he signed the attendance register in 2017 for 2016 and notices that it was dishonest to have signed for the 24 November 2016. Even Mr Mamba stated that the applicant would have had to sign before 2017 because when school closes, they all would have signed. The applicant stated that he got a note stating that those who had not signed must sign in the attendance register. Even so, the note did not say he must sign even on days he was not present. He decided on his own to sign in for the 24 and 25 November 2016 knowing he was absent. He confirmed it was dishonest to do that. The question though is why would the applicant have done that? No explanation whatsoever. He did not allege he had forgotten, or that he feared he would get unpaid leave or whatever. No explanation at all. If someone admits to have acted dishonestly, at least a reason or a justification for the dishonest act helps the next person to understand why. The applicant alleged to have been absent on the 25 November 2016 and filled in a leave form. The people from department did not capture it maybe because of their carelessness. The version of the applicant really is far-fetched.
[113] The principal was a good witness. He admitted that there was an error as pointed by the applicant’s representative. The error was with regard to knock in and knock off time. A person knocking in at 15:00 and knocking off at 7:00 is clearly an error and I find it a reasonable error looking at the fact that the boxes to be filled in are small. I do not see that such an error could affect the veracity, reliability or authenticity of the attendance register.
[114] Mr Mamba was mentioned all along and the respondent’s witnesses had a chance to comment on his versions put to them. The evidence of Mr Mamba though has to be approached with caution. This is because he was admittedly charged and dismissed following allegations of sexual assault against him on the very same learner ER. He is by definition an accomplice. In the case of S v Kelner 1963(2) SA it was held that an accomplice is a person who is liable to be prosecuted either for same offence which the accused is charged or as an accessory. Mr Mamba is himself an accomplice. This affects the weight of his evidence.
[115] Further, the indication on record was that the applicant’s sister would come and give evidence. She could not come on the 17 January 2019 when the matter was postponed due to the fact that she was just discharged from hospital. I understood that applicant’s sister would come and testify because the applicant and Mr Mamba both had testified that there was no male person at the death scene and that was also why applicant had to stay and organise the funeral. On the day of the last arbitration, came the applicant’s male cousin who placed himself at the scene even before the applicant arrived. He indicated that he was the one to call the applicant and that the applicant’s sisters arrived after even the applicant had arrived. He effectively was the applicant’s alibi as he stated that he stayed with the applicant the whole day. The applicant and Mr Mamba stated that the applicant was the only male at the deceased father’s home. Which begs the question, did the applicant forget this important part? Did Mr Mamba not see the cousin? Or was this gentleman not part of the scene? Being a very crucial part of the events (alibi), why was it not once put to the witnesses that the applicant was with a specific gentleman who would come and testify to that effect? Only after the applicant’s witnesses had testified and left, does he come and testify and the testimony as to his presence contrary to the applicant and Mr Mamba’s testimony. I find that this is a recent fabrication, an afterthought and I reject the evidence of this witness.
[116] Having made the above assessments. It is my finding that the most probable version is that the applicant was at work on the 24th November 2016 until he knocked off as he has indicated on the attendance book. The applicant’s version is far-fetched and it is not the most probable in the circumstances.
[117] I disagree with the argument by the applicant’s representative that I should have no shadow of doubt in my mind in the assessments that I have to make. It is trite that the standard of proof is on balance of probabilities not beyond doubt. I would go further and state this for the sake of brevity; even in the presence of doubt, the commissioner would still be required to find the most probable version.
[118] Having found that the applicant was at the scene, I now turn to the question of the commission of the offence.
[119] On this aspect, ER testified as to what happened which was denied by the applicant. As testified as to what she herself experienced but had no direct evidence of the events of the 24 November 2016.
[120] I have noted and have raised the fact that ER has testified to the effect that Mr Ndlovu was present at the time of the alleged kissing and touching. This witness was never called and I was addressed by the respondent’s rep that this witness did not want anything to do with the proceeding and even during the disciplinary hearing he did not testify. The respondent believed that even without such crucial evidence, the case was strong in its favour. The applicant argued that a negative inference should be draw for failure by the respondent to call this witness. The applicant did not deny that this witness did not want anything to do with the case and that even during disciplinary process he never testified.
[121] An adverse inference may be drawn if a party fails to testify or place evidence of a witness who is available and able to elucidate facts. I do not see why I should draw such an inference where it was not denied that the witness is not willing to come and testify. In rebuttal, the applicant could have called this witness if his willingness was not an issue but did not do so.
[122] With that said, I am obliged to consider the evidence before me and assess the probabilities.
[123] ER’s relating of events as appears on the record was impressive. She was overall a good witness. Although it is not the only consideration, i do consider that she had no motive to lie. An attempt was made to state that she lied because the applicant never responded positively to the crush she admittedly had on him. The applicant however stated that he was not at all aware of the crush. We were well educated during the proceedings what a crush is by RS. Whatever it is, it is not or did not lead to a declaration by ER to the applicant, and that declaration being rejected. Why would she want to punish him even though she had never tried, because of the crush, to get him to agree to something? There was also an attempt by the applicant to say someone must have put ER to this as he does not see how a child would do this. That is as far as it went with that allegation. No probable evidence supporting such notion was tendered.
[124] The way in which the issue came out is also very relevant in this matter. The complainant did not wake up and decide to go and report the applicant. It was not denied that the complainant’s mom found the tablet which the complainant was using and found messages between ER and the teachers and alerted the principal. Such conversations lead to an investigation being made. The contact number of the applicant was found conversing with ER. For ER to lie against the applicant based on information she did not even report and did not want to report is highly improbable. In fact, it would require motive to do so. ER was caught out as much as the applicant. She did not out of her volition report the case.
[125] The applicant testified that he was not aware that he was talking to the ER when he texted her and was not even aware ER had his number. He stated that he thought that when he sent ‘hi darling’ he was referring to Mrs Mkahwanazi who also complemented him on how he looked. He explained that hi darling is a statement one would say to someone they are comfortable with. ER admitted that he was not a frequent user of whatsApp but she denied the applicant was not aware. She stated that there were a lot of messages but they got wiped out because of a virus. For the applicant to assume that he is texting a certain person, does not even attempt to ask who it is and send a message he would send to someone he is comfortable with is just improbable.
[126] The argument that having found out the death of the father, he would not really want to be kissing and touching a learner at school was made. I have already made a finding that the applicant was at school. Even if it were to be argued that he found out in the morning of the 24 November 2016 about the death of the father, one would have to accept that at times truth is stranger than fiction. It is noteworthy to state that the exact date of death is stated and appears on the death certificate as the 24 November 2016. The exact time of death, is not proved. It was denied by the respondent’s representative that he died in the morning. There was no documentary evidence supporting the time of death. I called for the BI 1663 but same could not be sourced.
[127] It is my finding that the probabilities that the applicant did commit allegation one is most probable. I therefore find that the applicant is guilty of allegation 1
[128] Turning to allegation 2. There was no evidence supporting an intimate relationship between the applicant and the complainant. RE herself denied existence of a relationship. It is my finding that the respondent has not proven on balance of probabilities allegation 2.
[129] I now turn to the question of sanction. Offences in section 17 of the Employment of Educators Act are dismissible offences and no further discretion is required from the commissioner once a finding of guilt is made in that section. The applicant was charged with a section 18 offence and as a result sanction was challenged.
[130] The charge that the applicant faced, although not a section 17 offence was sexual in nature and it was involving a child. The nature of the applicant’s employment and position would require him to work with a child on a daily basis. How is the respondent to entrust him with the children with a finding of guilt in such cases. The best interest of the child has to be considered and protected and the courts have said even without a submission by the respondent to that effect. There can be no gainsaying the fact that the post to which the applicant was appointed in is a trust-requiring position, an in loco parentis, which requires a high level of trust. The guilt finding of an offence such as this breaks that trust relationship.
[131] The sanction of dismissal is thus the only appropriate sanction.
AWARD
1. The dismissal of the applicant was procedurally and substantively fair.
2. Applicant’s dispute referral is dismissed.
Signed and dated at Pretoria on this the 08 day of April 2019
Kuvonakala Chavalala
CCMA Commissioner
Province: Gauteng
Applicant: Masina S
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Misconduct
Venue: Johannesburg Central District Office, Pimville Soweto
Award Date: 8 April 2019
Arbitrator: Kuvonakala Pretty Chavalala
Panelist/s: Kuvonakala Pretty Chavalala
Case No.: PSES 865-17/18 GP
Date of Award: 08 April 2019
In the ARBITRATION between:
Masina S
(Union / Applicant)
and
Department of Education Gauteng
(Respondent)
Union/Applicant’s representative: Mr. Thulani Ngcobo
Telephone: 0797032332
Applicant’s cell:
Email:
Respondent’s representative: Ms. Tania Motalib
Telephone: 083 226 1924
Telefax:
Email:
DETAILS OF HEARING AND REPRESENTATION
[1] This is the arbitration award between Masina S (hereinafter referred to as “the applicant”) and Department of Education Gauteng (hereinafter referred to as “the respondent”). The hearing concerned an alleged unfair dismissal dispute arising as a result of an alleged misconduct. The case was initially heard at palm-ridge Magistrates court and finalised at Johannesburg Central District Office, Pimville Soweto. It sat down on several occasions and was finalised on the 11 March 2019
[2] The applicant was represented by Mr Ngcobo from SADTU. The respondent was represented by Ms Motalib from the department of education.
[3] The complainant and her friend are minor and will be referred in the award as follows; Complainant as ER and her friend as RS. The services of an intermediary were utilised for the testimonies of these two witnesses.
[4] The applicant submitted a bundle of documents which was marked Bundle A. The respondent submitted a bundle which was marked Bundle R.
[5] Due to the fact that the case was previously heard on several occasions, the parties could not immediately submit their closing arguments and requested 14 days to submit. Both parties had until the 25 March 2019. By the 25 march 2019 I had received the applicant’s arguments. On the 22 March 2019, I received a request for extension from the respondent’s representative with valid reasons and I granted the extension. I never received same even up to the date of submission of my award to the council.
[6] The hearing was held in English and it was digitally and manually recorded.
ISSUES TO BE DECIDED
[7] I am required to decide if the applicant’s dismissal substantively fair and if not, the appropriate remedy.
BACKGROUND TO THE ISSUES TO BE DECIDED
[8] The applicant was employed by the respondent on a permanent position stationed Kenilworth Secondary School. He was so employed by the respondent since 22 August 2008 and stationed at the school since 1 September 2014. He was at a position of Educator Post Level 1. He was dismissed on the 05 February 2018.
[9] The applicant was charged of three counts of misconduct but was found guilty on two. The two that the applicant was found guilty on were formulated as follows:-
a) Allegation 1
It is alleged that on or around the 24 November 2016, at or near Kenilworth High School, you conducted yourself in an improper, disgraceful and unacceptable manner in that amongst others you kissed, hugged and touched ER (complainant), a learner inappropriately and unacceptably. In view of your actions, you are thus charged with misconduct in terms of section 18 (1) (q) of the Employment of Educators act 76 of 1998 as amended.
b) Allegation 2
It is alleged that between the period 2016 and 2017, at or near Kenilworth High School, you conducted yourself in an improper, disgraceful and unacceptable manner in that amongst others you were in an intimate relationship with ER (complainant), a learner at Kenilworth High School. In view of your actions, you are thus charged with misconduct in terms of section 18 (1) (q) of the Employment of Educators act 76 of 1998 as amended.
[10] The following were common cause issues:
a) The procedure that was followed for the dismissal was a fair procedure.
b) An appeal lodged against the outcome of the disciplinary hearing and the appeal confirmed the outcome and sanction of dismissal.
c) The case involved minors, however there was no challenge to the testimonial capacity of the minors.
d) The applicant was at school in the morning of the 24th November 2016.
e) The learner mentioned in allegation 1 and 2 is a learner at Kenilworth High School
[11] The following were issues in dispute:-
a) Commission of the offence.
b) That the applicant arrived at school and left early was denied by the respondent.
c) In the event of a guilty verdict, the sanction would be challenged
[12] The applicant sought retrospective reinstatement as a relief.
SUMMARY OF EVIDENCE AND ARGUMENT
The Respondent’s case
The Respondent called 3 witnesses as follows:-
First witness: E.R whose identity is withheld due to the fact that she is a leaner who was at the time of incident and testimony a minor (17 years). She testified under oath as follows:
[13] She is aware of the reason she was giving testimony. She is aware of the charges levelled against the applicant and can confirm that they involve her.
[14] The applicant was her teacher at Grade 8 in 2015. He taught her natural sciences. They had a normal teacher and student relationship which progressed in time. The applicant would hold her hand and call her ‘my girlfriend or wife’. She used to accompany him to the staffroom and assist him to carry whatever he would be carrying. They later exchanged numbers. They talked occasionally via texts.
[15] On the 24th November 2016 she went to school. It was a school day but there were few learners at the school due to the fact that they had finished writing their exams. She went to pay school fees. As she was leaving she saw the applicant at the ground and went to him. They talked and walked towards a classroom.
[16] They got to a class and found one Mr Ndlovu, an educator, sitting doing his work. The applicant sat on the teachers table and held her closer to him. He told her that she is wife and started kissing her. The kiss was a half lip and half chin. They moved to the desk behind Mr Ndlovu. The applicant held her upper body, waist and breasts.
[17] The applicant then got a phone call and whilst busy on the phone, she walked about the classroom. When he finished they held each other. They went outside and he asked if he wanted to go to another class at the back and she declined. He wanted to be alone with her but she did not want anything more. He asked if she was shy and she told him she just did not want to go. Mr Ndlovu finished and the three of them left at the same time.
[18] She cannot say she was in a relationship with the applicant. She was getting to know him. It was the first time he had kissed her on the 24th November 2016.
[19] She did not sit with him during breaks but he would pass by while she would be with RS, her friend. He would hold her hand in front of RS and tell her she is his wife.
[20] The issue came out when out when the principal found out. She did not report it. She has nothing against the applicant and she does not want to hurt him, she did not want him to be in the position he was in. She had a crush on him and does not have a vendetta against him.
[21] She confirmed that page 11 of bundle R was a screenshots of chats between her and the applicant. She stated that he applicant does not usually respond whatsApp messages.
[22] The applicant kissed her again around beginning of January 2017. The applicant is the one who sent the message on the 6th May 2017 written ‘hi darling’.
[23] The holding of hands would happen in public early in the morning while there were not many people in school. She is not sure if people could see them.
[24] She denied that she got the applicant’s phone number when the applicant sent a communiqué to the parents. She insisted that they exchanged numbers in 2015 so she could send him a music video. The applicant wanted a music video from her. They have chatted before but the messaged cleared when her phone got a virus.
[25] She went to school around 11:00 on the 24th November 2016 and she saw the applicant after 11am. She denied that the applicant was not at school after 11:00. She insisted the applicant did kiss her and touch her in the presence of Mr Ndlovu.
[26] She stated that she did not want to go with the applicant to another class to be alone with him because she thought more could have happened. She thought they probably would have had sex.
[27] Her mom found the tablet and she saw the messages and alerted the principal. The principal confronted her and she initially said nothing was going on between her and the applicant because she did not want to get the applicant into trouble.
[28] She did have a crush on the applicant but it developed as he held her hand saying she is his girlfriend. She insisted that he did hold her hand outside class where RS (her friend) and probably other people could also see.
[29] She conceded that she wrote in her statement the incident of the 24 November 2016 was a once off thing. She stated she did not write about the kiss in January 2017 because he did not hold/touch her body like he did on the 24 November 2016.
[30] She denied the version that the applicant was under the impression that he was chatting to another teacher when he texted ‘Hi darling’. The applicant had her number and he knew it’s her, otherwise it would mean he sent ‘hi darling’ to unknown numbers.
[31] She insisted that if indeed the applicant left then it means he went back to school because what she says happened indeed happened, it is the truth.
Second witness: RS, whose identity is withheld due to the fact that she is a leaner who was at the time of incident and testimony a minor (16 years). She testified under oath as follows:
[32] She knows what ER testified on because they are good friends. ER did tell her about the incident of the 24 November 2016. She was not there but she believes ER since they talk about everything and ER is an open person.
[33] She does not know of any grudge between ER and the applicant.
[34] She would hear the applicant say to ER ‘You are my girlfriend/ wife’. ER did tell her that she had a crush on the applicant. It started when the applicant used to hold her hand and tell her she is his wife. She does not know of other incidents that occurred except for the 24th November 2016 incident.
[35] She conceded that she would lie for her friend if she was to be in trouble with her parents but she would not do so when someone’s life is at stake. She would lie to ER’s mom and say does not have a boyfriend even if she does but she cannot lie in court about the case. She has no grudge against the applicant. She has no reason now to lie about the applicant; he would call ER his wife or girlfriend.
[36] She does not see anything wrong with having a crush on a person because a crush is a light emotion and it is a personal emotion and feeling and does not even have to be communicated to the person you have a crush on. She denied that she and her friend made the story up because the applicant did not respond to the crush. She stated that the applicant was not even aware of the fact that ER had a crush on him.
[37] She denied that she is lying to protect ER from her mom because it is her mom that found the chats and the mom could see that it was not ordinary chats.
Third witness: Mr Jabulani Morgan Radebe testified under oath as follows:
[38] He is employed by the respondent as an educator and he was the principal of Kenilworth high until 31 March 2018. He has now found another job at another school.
[39] He heard of the charges against the applicant. He knows that the applicant’s father died on 24 November 2016, the applicant reported it to him that very afternoon. The applicant was at school the whole day. It is not true that he left in the morning because he, the Principal controls the attendance book.
[40] It is clear on the attendance register on page 6 of the respondent’s bundle that he knocked in at 6:55 and knocked off at 14:45. The book is an accurate record of when someone knocked in and out. He takes the time-book from his office to the staffroom and let the teachers sign in in his presence the he takes it to his office in order to manage latecomers. It is not possible to sign for previous dates.
[41] The applicant was also at school on 25 November 2016. If someone has to leave on an emergency, he will notify the principal and leave. Within 5 days from the day of return, such a person must submit proof and he as the principal would take the proof to the district. The person at the district will capture it on the system before the witness leaves and it will appear on the leave record of that employee.
[42] Page 19 of bundle R shows the leave days that were approved for the applicant and it shows that he was absent from 14 to 15 November 2016 as per time table.
[43] It was put to him that the attendance register is not a true reflecting recording actual times of arrival and departure of educators which he denied. It was put to him that it appears from the attendance register, that educator Mamba from the 22 to the 24 November arrived for work at 15:00 and left at 7:00am which he accepted is incorrect. He stated that that the entry is erroneous, it is a mistake.
[44] He denied that teachers would sometimes skip dates and not sign the attendance but only sign a few days later for all other unsigned previous days. He denied that the applicant had signed the attendance register in 2017 for November December 2016 period.
[45] He conceded that according to the applicant’s exam time table on page 1 of Bundle A, the applicant was supposed to be writing exam on 23 November 2016. He however stated that the applicant was at school on the said date regardless of the timetable.
[46] He stated that not only does he manage attendance register but also the presence of educators at school. The applicant was indeed at school on the 23, 24 and 25 November 2016. Condolence money was collected and such monies were sent to the funeral of the applicant’s late father on the 25 November 2016. The applicant was at school and staff members did not know the directions to the where the funeral was and the applicant gave directions.
[47] It is not possible for the applicant to just leave before the principal arrived. The applicant was at school the whole day on the 24 November 2016. The applicant himself informed the witness about the passing of his father in the afternoon of the 24th of November 2016.
[48] He denied that Mr Mamba took the applicant home on the morning of 24 November 2016. He stated that Mr Mamba was one of the people who said they do not know the addresses of the applicant’s place of residence. He asked the staff member for directions because he did not want to give the condolence money to the applicant himself but preferred that the Committee and staff members pay homage to the applicant’s family.
[49] He has a good relationship with the applicant. The applicant is a good teacher and he would not lie against him. In fact if not for this aces he would work with him even the next day because he was a good teacher. He denied that the applicant signed leave form for the 24th November 2016
[50] He is aware that Mr Mamba was one of the people that were charged also for sexual assault.
APPLICANT’S CASE
The applicant called four witnesses as follows: -
First witness: Stephen Masina, the applicant testified under oath as follows:
[51] He was employed from the 1st September 2014 as a Maths and Physics teacher from grade 10 and 11 at Kenilworth Secondary school. In 2016, he was responsible for grade 8, 9 (natural science) and 12 (maths and Physics).
[52] He knows the student ER; she was his student in 2015 in Natural Sciences.
[53] On the 24th November 2016, he arrived at work around 06:45. He was usually the first to arrive at school and the attendance register book was usually in the staff room. He then received a call that his father had died at his home and he was still in the bedroom. Mr Mamba was already at school and he told him about the death of his father. He also told Aunty Vee, the general worker
[54] He went to the offices and the principal and his deputy were not there yet. He told the staff members that were there about the loss of his father. Mr Mamba offered to take him home, on their way, they met Mrs Radebe, the HoD and he told her about the loss and she undertook to inform the principal when he arrived.
[55] He and Mr Mamba left around 7:15 and they passed by the paramedic first and reported the incident. Paramedics drove behind them and got there to attend to the deceased. Mr Mamba then left for school. He advised the applicant to stay since the applicant was the only male person at home, the other people present were ladies.
[56] He did not go back to school the entire day. ER is lying about the incident. There is no way he would leave a place where there is a funeral and go back to school to kiss and touch a learner.
[57] He denied ever exchanging numbers with ER. He can see the whatsApp conversation as appears on the bundle R page 11. On the 03 May 2017 they had a school trip and he had put on traditional clothes. Most teachers were complementing him on how he looked. He does not usually open his whatsApp. He opened his whatsApp later and saw a message saying ‘hey, you looked nice today, he thought it was some of the female teachers that were complementing him, specifically he thought it was Ms Mkhwanazi.
[58] He responded by saying ‘hey darling’. Mrs Mkhwanazi is comfortable with the applicant. He did not have the number stored in his phone so he was not aware of exactly was the person who sent him the message. He certainly was not aware it was ER.
[59] According to him, there is nothing untoward about saying ‘hi darling’, it only goes to show that you are talking to someone you are comfortable with.
[60] It is not true that he held ER’s hand and called her “my wife/ girlfriend”. ER is known to him only as a student and she was his best learner. He was not aware that she had a crush on him.
[61] When he left on the 24 November 2016, he never returned until the 28 November 2016. He went for marking on the 29th November 2016.
[62] He conceded that the attendance register is signed in and out for the 24th and 25th November 2016. The teachers who were appointed for marking were told to sign the attendance register in advance for until school closed since they would not be around to sign it daily. Since he was not around from the 24 November 2019, he only got the information upon his return in 2017 that he should sign the register for all the dates in 2016 where he was not around. He signed for the 24 and 25 November 2016 although he knew he was at the funeral. He took it the school was just assisting him because the spaces were blank while it should have been written ‘absent’. It is indeed dishonesty but he had to follow the practice, he did a wrong thing because of the directive that was given to sign.
[63] He signed a leave from for the 25 November 2016. He does not know why his leave record does not show that he was on leave on the 25th November 2016. It could be because of the department’s own carelessness
[64] He denied that he is the one that told the principal about the death of his father. It is not true that the staff members did not know his address. The principal is in fact the first one to know his address since he had picked him up from the garage near his home some time back.
[65] The attendance register is always in the class room, it is not true that principal keeps it at his office, if so, where would he, the applicant, have gotten it to sign it since he was first to arrive at school.
[66] He denied ever kissing and touching ER. ER and her friend are just lying because ER had a crush on him as he has heard. He never had any altercation with ER, she was his best student. ER’s father even helped him to win a technology project. She heard from ER that her father is good with technology and he could help with some materials from the technology project
[67] He did nothing wrong and he wants reinstatement as a relief.
[68] When asked as to why ER would lie as they had no altercation and ER’s father had helped him, he stated that there must be a source for this problem, ER did not do this, it is not possible for a child to do this.
[69] It was put to him that ER did not report him but labour section of the respondent discovered it and he confirmed that Mr Majola from the department told him that they had ER’s tablet and messages between him and applicant were discovered.
[70] He was not aware he was talking to ER on those messages as he was not aware that ER had his number. He stated that there was no profile picture on the contact. He conceded that he would not have said ‘Hi Darling’ to a male person; he took it for granted that the person he was communicating with was female because a male person would not send him a message appreciating his look.
[71] When he left on the 24 November 2016 he did not call the principal because the principal most of the time does not open his phone. Further, it was not possible to think about that at the time.
[72] He conceded that the death certificate does not indicate the time of death and denied that his father died in the afternoon. He conceded that his surname differed from the deceased’s surname, he was not using his father’s surname
[73] The leave forms would ordinarily be filled by the secretary at the school; he would submit proof like timetable. When put to him that secretary can put number of days she wanted he stated that is how they were doing things. He stated that he submitted 1 leave form and when question further he stated that it was actually four leave forms, three for exams and 1 for the 25th November 2016. He did not submit leave form for the 24th because he signed in; he was waiting for the principal to guide him on that.
[74] His father was buried on the 10 December 2016 after marking. He conceded that the note he claims to have received advising him to sign the attendance register stated that people must sign attendance registers but it did not say they must lie. He conceded that he was careless in signing in for the 24th and 25th November 2016 because he was not at school. He conceded that it does not make sense that he would sign in for the 25th November 2016 while according to him, he had taken leave on that day.
Second witness: Irene Raymond Mamba testified under oath as follows:
[75] He was employed at Kenilworth Secondary school and was HOD of Maths and science in 2016. He knows the applicant as they are colleagues.
[76] He recalls the events of the 24 November 2016. He arrived at school in the morning around 7:00. He was on the phone. Masina signalled with his hand to tell him to wait. The applicant approached the witness and told him that his father had died and he had just received a call. He requested the witness to drop him off at home.
[77] The principal’s car was not there and they left around 7:20. On the way the applicant was calling different relatives and one of the relatives advised that they go straight to the paramedics. They went there and an ambulance drove behind them to the deceased’s place. The witness did not go inside, he just rushed back to school.
[78] The principal was at the staffroom when he arrived. He wanted to tell the principal of his whereabouts and the principal told him he knows because staff members had told him of the passing of the applicant’s father. Condolence was collected and he was asked to deliver the money on the Friday. He delivered the money alone on the Friday.
[79] The applicant was away from school for a couple of weeks. He never returned to school on that day of the 24th November 2016 and was not at work on the 25 November 2016.
[80] It happens that teachers do not sign in on the attendance register and are reminded to go and sign the time book days after. He conceded that this practice is not the normal practice at the school, normally, the attendance register is at the staffroom or the principal brings it to the staff room. The period would not exceed a week without signing and normally it would be two or three people who have not signed. He stated that the applicant also will have to have signed the time book in 2016 and not 2017 because the attendance register has to be signed before school closes.
[81] He stated that him and the applicant are just colleagues and are not friends. He conceded that he was charged of a similar issue regarding the same student and he had at the time of testifying been dismissed. He however denied that he was just lying in favour of the applicant.
[82] When he left with the applicant they did not meet any other person except for the security. It was put to him that the applicant had spoken about the HOD and the witness stated that he could not recall. The witness went alone to take the car and drove to the gate, the applicant found him at the gate.
[83] Under re-examination he stated that he was not sure of when the applicant signed the attendance register.
Third Witness: Julia Dikeledi Molokwane testified under oath as follows:
[84] She is an educator at Kenilworth Secondary school and has previously worked with the applicant.
[85] She is aware that the applicant lost his father in November 2016. She was in the staff room the day he got a call about the loss of his father, he went to the staffroom where there were few teachers and said that he had lost his father. Mr Mamba took him home that very same morning. The condolence money was collected and sent to the applicant’s family by Mr Mamba. She remembers that when he lost his mother, few staff members went but when he lost his father, Mamba went to deliver the condolence money.
[86] The applicant was not specifically telling her about the loss but telling the people that were there.
[87] She never expected him to have come back on the said date because culturally it would be wrong for him to go back to work. She conceded that she is Tswana and that their cultures may be different.
Fourth Witness: Rhulani Sibisi testified under oath as follows:
[88] He knows the applicant. The applicant is his cousin. He affectionately referred to the applicant’s father as Mkhulu. He stays nearer to Mkhulu’s place.
[89] He received a call from Mkhulu's house on the 24th November 2016 early in the morning. When he got there, Mkhulu was seemingly dead. He called the applicant who said he was entering the gate of the school. He told the applicant that his father had died. The applicant told him that he will first go into the school and will make a plan to go to Mkhulu’s place he wants to see if the principal is at school.
[90] He has previously been in the business of undertaking and he knew what needed to be done. He informed that applicant to pass by police station and paramedic before arriving at Mkhulu’s place. Within 45 minutes, the applicant had arrived with a certain gentlemen who was said to be a teacher also. The applicant never went back to school as they were together the whole day preparing for the funeral.
[91] He and the applicant are cousins because their mothers are sisters. He had been called to Mkhulu’s house by Nhlahla who was at the time at Mkhulu’s house. The applicant’s sisters arrived a little later.
[92] He knows the BI 1663 (notification of death) document that is completed at the scene of death and confirms that it would identify time of death. He would get a copy if required to.
ANALYSIS OF EVIDENCE AND ARGUMENT
[93] The In terms of Section 191 of the LRA, the dispute about an unfair dismissal may be referred to the council if parties to the dispute fall within the registered scope of the council.
[94] In terms of section 192(1) of the LRA, the employee bears the onus to prove the existence of dismissal. The respondent confirmed that the applicant was dismissed. The applicant challenged only the substance for the dismissal.
[95] In terms of section 188 of the Act, a dismissal is unfair if the employer fails to prove that the reason for dismissal is a fair reason related to the employee's conduct or capacity.
[96] Before I address the question of substantive fairness, I would like to state that I did require the last witness to produce the document BI 1663 and gave the directive that should it be found, the applicant’s representative must inform the council so that a further hearing be constituted and the last witness testify on the document. In the event it is not found, the parties to submit closing argument by the 25 March 2019. The document was not found and only closing arguments submitted.
[97] I further enquired as to why Mr Ndlovu was not called as a witness and the respondent stated that Mr Ndlovu did not want to get involved in the case and did not even testify at the disciplinary hearing. The respondent believed that it had a strong case against the applicant regardless of the fact that Mr Ndlovu was not called.
[98] Since this case involved testimony by minors, the service of an intermediary was utilised. The testimonial capacity of the minors was not questioned. I found during their evidence that they had the necessary testimonial capacity and their capacity never posed as a challenge during the entire arbitration.
[99] I further have to state that I have noted with understanding the fears of the applicant and the representative as were repeatedly raised in the closing arguments. Fears that with the scourge of sexual assaults in our country especially in schools, innocent people are likely to be found guilty. Presiding officers subconsciously being influenced by external forces like the news and all. It can be argued equally though that we live at a time where the scourge of educators being abused and subjected to all forms of derogation by learners is also on the rise. Where the moral degeneration of learners is daily on the news. I can be equally implored on not to judge the moral value of the complainants but the case. I can state that as a commissioner, I am enjoined by the Labour Relations Act to determine the dispute fairly in consideration of the material before me and at all times taking into account the purport and the spirit of the Constitution of South Africa. I am and have been alive to that duty even up till the time of this award.
[100] I now address question of substantive fairness.
[101] In terms of Schedule 8 of the Code, anyone determining the substantive fairness of a dismissal must determine: -
(a) Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the work-place; 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 with an appropriate sanction for the contravention of the rule or standard.
[102] The first charge that was levelled against the applicant was formulated as follows: Allegation 1 ‘It is alleged that on or around the 24 November 2016, at or near Kenilworth High School, you conducted yourself in an improper, disgraceful and unacceptable manner in that amongst others you kissed, hugged and touched ER (complainant), a learner inappropriately and unacceptably. In view of your actions, you are thus charged with misconduct in terms of section 18 (1) (q) of the Employment of Educators act 76 of 1998 as amended.’
[103] Section 18 (1) (q) provides ‘Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she—(q) while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner’;
[104] The applicant denied the commission of the offence at all. His version is that at the time of the said offence, he was not even at the school at all.
[105] It was common cause that the applicant reported for work on the 24th November 2016. What is at dispute is whether or not he left before knock off time and if he did at what time he left. This is paramount because the answer to this question will place or remove the applicant from the scene of the incident the applicant is charged with. I now address the question of whether the applicant was at the scene at the alleged time of the incident.
[106] While I agree, as argued by the applicant’s representative that the respondent bears the overall onus of proof, I have to state that this does not mean that the applicant can just fold his arms and wait to see if the respondent will discharge its onus. The evidentiary burden will from time to time shift between parties and their versions. For an example. If the applicant states he was not at a certain place at a specific time but at another like in this case, and the respondent places material evidence of his presence at that place, the evidentiary burden on his alibi shifts to the applicant.
[107] The complainant, ER testified that she saw him at the school ground around 11am and she went to him and the incident happened. She was an impressive witness and stood firm on her version.
[108] The principal testified that the applicant was at school on the 24th November 2016 the entire day. Further, the applicant himself told him about the death of his father and this he says was in the afternoon. He insisted that even if the applicant could say he erroneously signed, he could see the warm body and the applicant was at the school.
[109] The complainant’s friend RS could not testify as to the events of the 24 November 2016 except to the extent the issue was related to her by the complainant.
[110] The attendance register indicates that the applicant was at school from 6:45 to 14:55 on the 24 November 2016 and was at school on the 25 November 2016. The leave record does not show the applicant being absent on these two days. The evidence and the document is prima facie evidence of the applicant’s presence, although not to be taken on face value. It is sufficient enough to call for a rebuttal or shift the evidentiary burden to the applicant.
[111] In rebuttal, the applicant himself testified to having left before 7:30 in the morning. He told aunty Vee and also HoD Ms Radebe of the death of his father and that he was leaving. Mr Mamba offered to take him home. These two witnesses, who were at placed at the scene, were never called by the applicant. Even when versions were being put to the principal, he was only being told of Mr Mamba coming to testify that he saw and took applicant home on the 24 November 2016 early in the morning. He was never told that Aunty Vee, Ms Radebe and Ms Molokwane all saw him leave early in the morning. After the respondent closed its case, Ms Molokwane who was never even specifically, mentioned was called to testify. This denied the principal an opportunity to comment on Ms Molokwane’s evidence. The weight of Ms Molokwane’s evidence is thus affected.
[112] The applicant mentioned that he signed the attendance register in 2017 for 2016 and notices that it was dishonest to have signed for the 24 November 2016. Even Mr Mamba stated that the applicant would have had to sign before 2017 because when school closes, they all would have signed. The applicant stated that he got a note stating that those who had not signed must sign in the attendance register. Even so, the note did not say he must sign even on days he was not present. He decided on his own to sign in for the 24 and 25 November 2016 knowing he was absent. He confirmed it was dishonest to do that. The question though is why would the applicant have done that? No explanation whatsoever. He did not allege he had forgotten, or that he feared he would get unpaid leave or whatever. No explanation at all. If someone admits to have acted dishonestly, at least a reason or a justification for the dishonest act helps the next person to understand why. The applicant alleged to have been absent on the 25 November 2016 and filled in a leave form. The people from department did not capture it maybe because of their carelessness. The version of the applicant really is far-fetched.
[113] The principal was a good witness. He admitted that there was an error as pointed by the applicant’s representative. The error was with regard to knock in and knock off time. A person knocking in at 15:00 and knocking off at 7:00 is clearly an error and I find it a reasonable error looking at the fact that the boxes to be filled in are small. I do not see that such an error could affect the veracity, reliability or authenticity of the attendance register.
[114] Mr Mamba was mentioned all along and the respondent’s witnesses had a chance to comment on his versions put to them. The evidence of Mr Mamba though has to be approached with caution. This is because he was admittedly charged and dismissed following allegations of sexual assault against him on the very same learner ER. He is by definition an accomplice. In the case of S v Kelner 1963(2) SA it was held that an accomplice is a person who is liable to be prosecuted either for same offence which the accused is charged or as an accessory. Mr Mamba is himself an accomplice. This affects the weight of his evidence.
[115] Further, the indication on record was that the applicant’s sister would come and give evidence. She could not come on the 17 January 2019 when the matter was postponed due to the fact that she was just discharged from hospital. I understood that applicant’s sister would come and testify because the applicant and Mr Mamba both had testified that there was no male person at the death scene and that was also why applicant had to stay and organise the funeral. On the day of the last arbitration, came the applicant’s male cousin who placed himself at the scene even before the applicant arrived. He indicated that he was the one to call the applicant and that the applicant’s sisters arrived after even the applicant had arrived. He effectively was the applicant’s alibi as he stated that he stayed with the applicant the whole day. The applicant and Mr Mamba stated that the applicant was the only male at the deceased father’s home. Which begs the question, did the applicant forget this important part? Did Mr Mamba not see the cousin? Or was this gentleman not part of the scene? Being a very crucial part of the events (alibi), why was it not once put to the witnesses that the applicant was with a specific gentleman who would come and testify to that effect? Only after the applicant’s witnesses had testified and left, does he come and testify and the testimony as to his presence contrary to the applicant and Mr Mamba’s testimony. I find that this is a recent fabrication, an afterthought and I reject the evidence of this witness.
[116] Having made the above assessments. It is my finding that the most probable version is that the applicant was at work on the 24th November 2016 until he knocked off as he has indicated on the attendance book. The applicant’s version is far-fetched and it is not the most probable in the circumstances.
[117] I disagree with the argument by the applicant’s representative that I should have no shadow of doubt in my mind in the assessments that I have to make. It is trite that the standard of proof is on balance of probabilities not beyond doubt. I would go further and state this for the sake of brevity; even in the presence of doubt, the commissioner would still be required to find the most probable version.
[118] Having found that the applicant was at the scene, I now turn to the question of the commission of the offence.
[119] On this aspect, ER testified as to what happened which was denied by the applicant. As testified as to what she herself experienced but had no direct evidence of the events of the 24 November 2016.
[120] I have noted and have raised the fact that ER has testified to the effect that Mr Ndlovu was present at the time of the alleged kissing and touching. This witness was never called and I was addressed by the respondent’s rep that this witness did not want anything to do with the proceeding and even during the disciplinary hearing he did not testify. The respondent believed that even without such crucial evidence, the case was strong in its favour. The applicant argued that a negative inference should be draw for failure by the respondent to call this witness. The applicant did not deny that this witness did not want anything to do with the case and that even during disciplinary process he never testified.
[121] An adverse inference may be drawn if a party fails to testify or place evidence of a witness who is available and able to elucidate facts. I do not see why I should draw such an inference where it was not denied that the witness is not willing to come and testify. In rebuttal, the applicant could have called this witness if his willingness was not an issue but did not do so.
[122] With that said, I am obliged to consider the evidence before me and assess the probabilities.
[123] ER’s relating of events as appears on the record was impressive. She was overall a good witness. Although it is not the only consideration, i do consider that she had no motive to lie. An attempt was made to state that she lied because the applicant never responded positively to the crush she admittedly had on him. The applicant however stated that he was not at all aware of the crush. We were well educated during the proceedings what a crush is by RS. Whatever it is, it is not or did not lead to a declaration by ER to the applicant, and that declaration being rejected. Why would she want to punish him even though she had never tried, because of the crush, to get him to agree to something? There was also an attempt by the applicant to say someone must have put ER to this as he does not see how a child would do this. That is as far as it went with that allegation. No probable evidence supporting such notion was tendered.
[124] The way in which the issue came out is also very relevant in this matter. The complainant did not wake up and decide to go and report the applicant. It was not denied that the complainant’s mom found the tablet which the complainant was using and found messages between ER and the teachers and alerted the principal. Such conversations lead to an investigation being made. The contact number of the applicant was found conversing with ER. For ER to lie against the applicant based on information she did not even report and did not want to report is highly improbable. In fact, it would require motive to do so. ER was caught out as much as the applicant. She did not out of her volition report the case.
[125] The applicant testified that he was not aware that he was talking to the ER when he texted her and was not even aware ER had his number. He stated that he thought that when he sent ‘hi darling’ he was referring to Mrs Mkahwanazi who also complemented him on how he looked. He explained that hi darling is a statement one would say to someone they are comfortable with. ER admitted that he was not a frequent user of whatsApp but she denied the applicant was not aware. She stated that there were a lot of messages but they got wiped out because of a virus. For the applicant to assume that he is texting a certain person, does not even attempt to ask who it is and send a message he would send to someone he is comfortable with is just improbable.
[126] The argument that having found out the death of the father, he would not really want to be kissing and touching a learner at school was made. I have already made a finding that the applicant was at school. Even if it were to be argued that he found out in the morning of the 24 November 2016 about the death of the father, one would have to accept that at times truth is stranger than fiction. It is noteworthy to state that the exact date of death is stated and appears on the death certificate as the 24 November 2016. The exact time of death, is not proved. It was denied by the respondent’s representative that he died in the morning. There was no documentary evidence supporting the time of death. I called for the BI 1663 but same could not be sourced.
[127] It is my finding that the probabilities that the applicant did commit allegation one is most probable. I therefore find that the applicant is guilty of allegation 1
[128] Turning to allegation 2. There was no evidence supporting an intimate relationship between the applicant and the complainant. RE herself denied existence of a relationship. It is my finding that the respondent has not proven on balance of probabilities allegation 2.
[129] I now turn to the question of sanction. Offences in section 17 of the Employment of Educators Act are dismissible offences and no further discretion is required from the commissioner once a finding of guilt is made in that section. The applicant was charged with a section 18 offence and as a result sanction was challenged.
[130] The charge that the applicant faced, although not a section 17 offence was sexual in nature and it was involving a child. The nature of the applicant’s employment and position would require him to work with a child on a daily basis. How is the respondent to entrust him with the children with a finding of guilt in such cases. The best interest of the child has to be considered and protected and the courts have said even without a submission by the respondent to that effect. There can be no gainsaying the fact that the post to which the applicant was appointed in is a trust-requiring position, an in loco parentis, which requires a high level of trust. The guilt finding of an offence such as this breaks that trust relationship.
[131] The sanction of dismissal is thus the only appropriate sanction.
AWARD
1. The dismissal of the applicant was procedurally and substantively fair.
2. Applicant’s dispute referral is dismissed.
Signed and dated at Pretoria on this the 08 day of April 2019
Kuvonakala Chavalala
CCMA Commissioner