PSES442 – 17/18GP
PSES442 – 17/18GP
Award Date:
2 July 2019
Case Number: PSES442 – 17/18GP
Province: Gauteng
Applicant: SADTU obo V RAMPHAL
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Misconduct
Venue: the Council’s offices in Centurion
Award Date: 2 July 2019
Arbitrator: COEN HAVENGA
SADTU obo V RAMPHAL “the Applicant”
and
DEPARTMENT OF EDUCATION – GAUTENG PROVINCE “the Respondent”
ARBITRATION AWARD
Case Number: PSES442 – 17/18GP
Last date of arbitration: 10 May 2019
Final closing arguments submitted in writing on: 30 May 2019
Date of award: 02 July 2019 (extension granted)
COEN HAVENGA
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
1 DETAILS OF HEARING AND REPRESENTATION
1.1 The last day of the hearing of the arbitration took place on 10 May 2019 at the Council’s offices in Centurion. The last of the written closing arguments were received on 30 May 2019 and will form part of the record. The finalization of the matter was delayed by the intermittent unavailability of a Skype facility, the in limine application for re-opening of the Respondent’s case as well as the unforeseen and lengthy hospitalization of the commissioner, and the subsequent recovery process. The Applicant is SADTU on behalf of Mr. V Ramphal, represented by Mr. T Ngcobo, a union official. The Respondent is the Gauteng Department of Education, represented by Ms. C Trent.
2 TERMS OF REFERENCE AND ISSUES TO BE DECIDED
2.1 The arbitration takes place in terms of the referral of the dispute by the Applicant.
2.2 During the preliminary proceedings the parties agreed that the following facts are common cause, and are accepted as proven:
2.2.1 The Applicant was employed by the Respondent as a PL1 educator at HS Vryburger (“the School”).
2.2.2 The Applicant earned R22 447,50 per month at the time of his dismissal.
2.2.3 The Applicant had been employed since 1 May 2012.
2.2.4 The Applicant was charged in terms of section 18(1)(q) of the Employment of Educators Act, no. 76 of 1998, in that he conducted himself in an improper, disgraceful and unacceptable manner by making sexual and unacceptable comments to learners and by touching the buttocks of a learner. The Applicant was found guilty of three counts of misconduct.
2.2.5 He was dismissed on 28 August 2017, following a disciplinary hearing and unsuccessful appeal.
2.3 The following issues were placed in dispute:
SUBSTANTIVE FAIRNESS:
2.3.1 The Applicant disputes that he committed the misconduct that he had been found guilty of. During his opening statement the Applicant’s representative stated that the allegations are a fabrication to get back at the Applicant, and that the witnesses were instructed what to say by other educators who had a problem with the Applicant.
PROCEDURAL FAIRNESS:
2.3.2 The Applicant disputes the procedural fairness of his dismissal.
2.3.3 The disciplinary hearing was unfairly held in the absence of the Applicant, and not held in accordance with legislation.
2.3.4 The period taken to charge the Applicant was not in line with the prescriptions of the legislation.
2.4 The relief the Applicant seeks from this arbitration hearing is to be reinstated retrospectively without loss of income or benefits.
2.5 The Respondent tabled documents contained in Bundle A. The Applicant tabled documents contained in bundle B.
3 PRELIMINARY ISSUES
3.1 Although the matter relates to allegations of improper, disgraceful and unacceptable conduct towards learner who were minors at the time of the alleged incident, all the witnesses were 18 years and older at the time they testified, and neither party applied for their testimony to be heard in camera, or by making use of an intermediary. Some of the witnesses testified through Skype.
4 SUMMARY OF EVIDENCE
4.1 The proceedings have been recorded digitally, and a summary of the Respondent’s and Applicant’s witnesses’ evidence follows below. What follows is only a summary of evidence deduced at the arbitration hearing and does not purport to be a verbatim transcription of all the testimony given. The record of the proceedings will reflect the complete testimony of the witnesses.
Respondent’s case
4.2 VANESSA SAFI-MUYUMBA (“Vanessa”) testified under oath that she is 20 years old and attended the School from grade 8 to 12. She completed grade 12 in 2016. The allegations contained in Allegation 1 in A3 are true. She had a lollipop in her mouth after break. When she sat down the Applicant asked two boys next to her whether they agree that she was sucking it nicely, and he said that it would have been nice if it was his dick. She felt really disgusted by what the Applicant said. She told her mother about it, but her mother said she should not take it too personal, and let it go. On 5 May 2016 she was walking out of the class last and felt a touch on her buttocks. She swung around to see who did it, and the only the Applicant was behind her. She was shocked, confused and embarrassed by it. She again decided to let it go. Her friend confirmed the next day that the Applicant was standing behind Vanessa. She did not tell her mother about the that incident because of the was her mother responded previously. She did send a message to her dad who was out of the country. He suggested that she tell the School.
4.3 Vanessa first told Mr. Du Toit (“Du Toit”) who told her to rather find a female teacher to talk to. Her dad did send an email to the School asking them to take action. The School called Ms. Labuschagne to come and talk to the learners. Vanessa spoke to Ms. Peens and Ms. Erwee. The Applicant teased her by saying that she was married to another teacher, Du Toit, and that she was white.
4.4 During cross-examination Vanessa testified that Mtumpa and Humphrey were with her when the Applicant made the comments about the lollipop. It is the truth that he made those statements. Regarding the second incident, she might be mistaken about the date, but the incident of touching her buttocks did happen. She is not making it up. She never stayed with Du Toit. He was her dad’s advocate before, and her dad trusted him to help her in school. It is not true that she was used by Du Toit to fabricate allegations against the Applicant after the Applicant got a protection order against Du Toit. She did not send a voice message to Debra about making up evidence. The allegations against the Applicant is not a fabrication. She has no reason to leave her work and come and testify falsely against the Applicant.
4.5 DANIELLA DENOBREGA (“Daniella”) testified under oath that she is 19 years old and was in the School from 21 April 2015 to 27 November 2017. On her first day at School she was with her friend Liberty Rock. They passed the Applicant’s classroom, and the Applicant said to her that she was a very pretty girl, that she looked like a handful and asked if could take her off Liberty’s hands. He addressed the comments to both of them. Kiara Ngwenya was Daniella’s best friend. Daniela was her panic buddy. Kiara was diagnosed with anxiety disorder, and she would contact Daniella to bring her medication when necessary. The Applicant once told Keyara her skirt was short he could almost see her ass. She could see Keyara was upset when she told Daniella about it afterwards. Liberty Rock was her girlfriend until the beginning of 2017.
4.6 During cross-examination Daniella testified that she often heard the Applicant say how big his dick was and how small the boys’ dicks were. She did not hear the comment made to Vanessa. Keyara told her what the Applicant said to her about her short dress, she did not hear it or witness the incident. She did hear the Applicant make a comment about Keyara’s legs being nice.
4.7 JOHANNA CATHERINA LABUSCHAGNE (“Labuschagne”) testified under oath that she was a deputy chief education specialist. She did crisis intervention. She retired at the end of 2016 with 40 years’ experience. A20 reflects the report she compiled on 18 May 2016. She read her report into the record. She interviewed a lot of learners and found no motive for lying. All the children had issues with the racial remarks made by the Applicant. She could find no motive for matric learners to make up such story that would just add to their stress before the preliminary exams. She find it improbable that learners from different racial groups and backgrounds would collude in that way.
4.8 During cross-examination Labuschagne testified that she randomly selected learners from a class list to interview. She selected Vanessa because her parents complained. She did not interview Daniella. She found grounds for disciplinary action. She saw the Applicant’s actions as him grooming the learners. A person would use jokes and sexual inuendo in a light way to test boundaries.
4.9 BIANCA ERWEE (“Erwee”) testified under oath that she had been at the School for nine years. She was part of the school-based support team (SBST). Vanessa reported to her that comments were made in the class that made them feel uncomfortable. She also said the Applicant touched her inappropriately on her buttocks. She was scared to go to the Applicant’s class. Erwee told her to report it to her father, who then sent an email to the School. Labuschagne then intervened at the School.
4.10 During cross-examination Erwee testified that it was improbable that so many learners would make up stories against the Applicant. Keyara came running to her in her class after the Applicant made the comments to her. Her first words were that she was upset and could not take it anymore.
4.11 KEYARA NGWENYA (“Keyara”) testified under oath that she is 18 years old and was in the School in 2015 and 2016. The Applicant always made inappropriate comments in class to Pretty and Refentse. Pretty is an albino, and he would make remarks about her whiteness. He would say Refentse was so dark, if one turned off the light, he was invisible. He told Keyara her skirt was so short he could see her ass. She felt embarrassed, exposed and uncomfortable. She put her bag on her lap. She knew her skirt was not short. She felt as if he looked at her naked. The Applicant would say that he has a big dick, and that they could ask his wife or their moms. She had anxiety disorder since 2014. She managed it fine until his class. Daniella was her panic buddy. She is testifying because she does not want the Applicant to get away with what he did.
4.12 During cross-examination Keyara testified that the comments did not bother her, but it then became more frequent, personal and inappropriate. It was always of a sexual nature. She did not send the Applicant a Facebook friend request. The Applicant did make the comment about her short skirt and ass. Liberty Rock intimidated her to try and convince her to withdraw the case. She however decided that she was strong enough to see it through.
4.13 MAMPHAYENG MONICAH MAREDI (“Maredi”) testified under oath she is a SCS for teacher development at the Teachers’ Centre. Her manager is Malesela Tolo. The Applicant was brought to the Centre because he had a case pending. On 2 March 2017 she was at the district office to fetch training material. She met Ms. Trent there, who told her she was preparing for the case of the Applicant. Maredi went to the Centre and found the Applicant there. She asked him whether he should not have been at his hearing. He told her he was aware of the hearing, but that he was not going, as his powerful SADTU representative will be there to represent him. Maredi told him that as far as she knew, he had to be there as well. The Applicant said his brother passed away. She sympathized with him, and they separated. The Applicant told her he was bereaved, but he looked normal. He did not mention being ill or being booked off.
4.14 During cross-examination Maredi testified that if a person looked normal it did not mean he was not sick. He did say he lost a brother, but he did not look bereaved.
4.15 MALESELA TOLO (“Tolo”) testified under oath that he was stationed at the Teachers’ Centre as deputy chief education specialist. The Applicant was brought to the Centre during his precautionary suspension. A17/18 reflects Tolo’s report in respect of the Applicant’s attendance at the Centre. Tolo was concerned that the Applicant did not communicate his whereabouts to him. He would sometimes write that he was present, while he was not. He would just leave without asking permission. On 2 March 2017 he saw the Applicant at the Centre. Maredi told him what the Applicant told her. He was summoned to the hearing by Ms. Trent. The Applicant did not tell him about the doctor’s letter when he saw him in the morning. He sent Tolo a text message that he would be leaving early. When he saw him earlier the Applicant looked normal.
4.16 During cross-examination Tolo testified that A19, the letter from the psychologist, does not say that the Applicant cannot attend work, but that he cannot attend the hearing. He was at work.
Applicant’s case
4.17 VISHAM RAMPHAL, the Applicant, testified under oath that he was the civil technology teacher at the School since 2012. He denies the allegations in Allegation 1, 2 and 3. He received a lot of threats from Du Toit, and he got a protection order against him. He went to the court on 5 May 2016. He had no interaction with any learner on that day. He thinks Vanessa fabricated the allegations because of his feud with Du Toit. Vanessa attended all her classes. He did not coerce any learner to threaten witnesses. It is not in his nature to make inappropriate comments in class. He never made comments about leaners’ skirts or asses. He never made comments about Pretty being white. He applied for a deputy principal post in 2014. The whole process came to a standstill, and they wrote to Ms. Trent to enquire why. Ms. Trent rebuked them and told them they had no right to lay a complaint. Then Du Toit started the vendetta against him. Ms. Trent and the principal had a vendetta against him. The learners were used in that process.
4.18 he was placed at the Teachers’ Centre without facilities to do work. They slept in their cars. It was absolutely inhumane conditions. They delayed charging him with 5 months. His health and finances were depleted. He was not charged within the required ninety days. His youngest brother passed away on 19 February 2017 when he died in the Applicant’s arms, after he cut himself with a glass door. The Applicant did the funeral arrangements. On 23 February 2017 he received the notice for the hearing on 2 March 2017. He did not attend the hearing because he was not emotionally well after his brother died. He could not prepare properly. He realised he needed help and went to see a psychologist. She concluded that he was not mentally fit to attend the hearing on 2 March 2017. Her report is reflected in A19. He gave the letter to the union who said they would deliver it. He did go to work because he was not booked off from work. Ms Trent called him and he told her that his union will bring the letter. He later received text messages from Ms. Trent that if he was not at the hearing by 12h00, they were going to proceed in his absence. He was not in a state to properly prepare and represent himself. He did not ask for a postponement prior to 2 March 2017.
4.17 During cross-examination the Applicant testified that he did not submit a grievance because it would have gone to Ms. Trent who already had a vendetta against him. He did not report Du Toit’s threats of assault to head office. He took the route of a protection order.
Note: The matter was adjourned at this stage to allow the Respondent to file an application for re-opening of its case. The parties filed papers, and the Applicant then also raised an objection to the locus standi of the Respondent’s representative. After consideration of the two issues a ruling was issued, which forms part of this record. The Respondent’s application for re-opening of its case was dismissed, and the Applicant’s objection to the locus standi of the Respondent’s representative was also dismissed. The arbitration hearing reconvened and the cross-examination of the Applicant then continued.
4.18 The Applicant had the feeling that the principal, Du Toit and Ms. Trent conspired against him. He cannot explain why all the learners would lie at the same time. He cannot answer the question whether Labuschagne was lying as well. He does not know what would motivate her to lie. The teachers in the School forced the learners to lie. Vanessa was used by Du Toit to lie. Keyara also lied on Du Toit’s behest. The Applicant agrees that he did not put that version to Keyara. The Applicant assumes that although Du Toit was no longer at the School, he could still have had influence. He did not put any of these allegations of a conspiracy to the witnesses because he only had interest in his case. He did not put it to Erwee that she was lying because she was upset because the Applicant caused her husband to be terminated for not being qualified. He knew on 28 February 2017 that he was not going to attend the hearing, but he did not notify the employer. He took the letter to the union on 1 March 2017. He went to the psychologist on 28 February 2017, and she then issued the letter. It was not done with the intention to avoid the hearing. Ms Trent did call him at the Teachers’ Centre and informed that they will proceed if he did not present himself. He told her that his representative will submit a letter from the doctor.
4.19 PRETTY HLONGWANE (“Pretty”) testified under oath that she was a learner in 2017 at the School. She testified as a witness in the Applicant’s hearing. She is here to clear her conscience. the evidence she gave there was not the truth. She was forced by Ms. Diederichs and Ms. George forced her to lie. She had no choice but to lie. They were threatened that their school career would be over if they did not lie. She never gave a statement to anyone from the Department. She was not forced or paid to testify now on behalf of the Applicant. The Applicant did not say to Keyara that her skirt was so short he could see her ass.
4.20 During cross-examination Pretty testified that she doesn’t know why Ms. Diederichs and Ms. George forced her to lie. She had to memorise what was written on a piece of paper. Her emotional state when she told her story then was all an act. She did not respond when it was put to her that she was a good actress then. The teachers knew what was going to be asked in the disciplinary hearing and prepared her for that. She does not know how they could have known what would be asked. She does not know why Labuschagne would lie about interviewing her. She does not know why Daniella and Keyara would lie.
4.21 During questioning by the commissioner to obtain clarity Pretty testified that she cannot explain why she did not come clean after she wrote her matric in 2017, when her school career was no longer under threat.
4.22 HUMPHREY LIKANDO (“Humphrey”) testified under oath that he was in grade 12 in 2016. He did not see the Applicant making a comment about sucking a lollipop. The Applicant only made jokes like saying to him “you black guy”. He never heard him make racist or sexist comments.
4.23 During cross-examination Humphrey testified that the Applicant would call a learner who was short “shorty”, or someone “fat guy”. He never heard the Applicant talk about dicks. The girls are lying. The Applicant’s jokes did not bother him. Nobody ever threatened him or forced him to say anything.
4.24 ALPRAYER SADIKI (“Sadiki”) testified under oath per skype that in 2016 he was in grade 11 in the School. The Applicant never said Keyara’s skirt was s short he could see her ass. He never heard him using sexual words in class.
4.25 During cross-examination Sadiki testified that the Applicant would make jokes that would not offend learners. He cannot recall the jokes. He never heard him use the word dick. He never heard him use the term “fat boy”. He cannot think that the Applicant would say such things.
4.26 KOPANO TILODI (“Tilodi”) testified under oath per skype that in 2016 he was in grade 11 in the School. The Applicant never made a comment about Keyara’s skirt being short. He never made sexual remarks or jokes.
4.27 During cross-examination Tilodi testified that the Applicant was a humorous person. He did not make jokes out of context. He would make jokes that would lighten up the mood. Tilodi does not remember most of the things, as it happened in 2016. He cannot recall the Applicant using the terms “black guy” or “fat guy”. He never heard him talk about his dick.
5 SUMMARY OF ARGUMENT
5.1 Both parties submitted extensive written closing arguments which form part of the record and will not be repeated here. I have considered all the arguments, legal principles and case law referred to by the parties, together with the other evidence, oral and documentary, presented by the parties during the arbitration hearing, as reflected in the recording of the arbitration.
6 ANALYSIS OF EVIDENCE AND ARGUMENT
6.1 SUBSTANTIVE FAIRNESS OF THE DISMISSAL
In considering the substantive fairness of the dismissal of Mr. Ramphal for misconduct, the principles contained in Schedule 2: Disciplinary Code and Procedures for Educators, promulgated in terms of the Employment of Educators Act, no. 76 of 1998, as well as the Code of Good Practice for Dismissals in Schedule 8 of the Labour Relations Act, no. 66 of 1995, provide the following guidelines:
a) Whether or not the accused employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
b) If the rule or standard was contravened, whether or not –
i. The rule was a valid or reasonable rule or standard;
ii. The accused employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
iii. The employer has consistently applied the rule or standard.
iv. Dismissal was an appropriate sanction for the contravention of the rule or standard.
The dismissal of Mr. Ramphal is not in dispute, and the Respondent is therefore required to prove that the dismissal was substantively and procedurally fair. The standard of proof that is applicable in hearings of this nature is identical to the civil standard – “the employer must prove the case against the employee on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1.
6.1.1 WAS A RULE OR STANDARD REGULATING CONDUCT IN, OR OF RELEVANCE TO, THE WORKPLACE CONTRAVENED?
6.1.1.1 As stated above, the standard of proof that is applicable is identical to the civil standard – “the employer must prove the case against the employee on the balance of probabilities and not beyond reasonable doubt”.
6.1.1.2 Arbitration hearings are not merely reviews of the employer’s decision to dismiss employees, or the propriety of the procedures followed by the employer (John Grogan Dismissal 320 (2002)). An arbitration hearing constitutes a full rehearing on the merits plus an investigation of the fairness of the procedure followed by the employer. (See Gibb v Nedcor Ltd 1998 19 ILJ 364 (LC)). Arbitration amounts to a hearing de novo. The decision of the arbitrator is not reached with reference to the evidential material that was before the employer at the time of its enquiry, but on the evidential material placed before the arbitrator during the arbitration hearing. This means that all relevant evidence must be placed before the arbitrator in proper form, even if it has been fully canvassed at the employee’s disciplinary hearing. (See Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] JOL 20811 (CC), where the Court approved the LAC dictum in Count Fair Foods (Pty) Ltd v CCMA & Others [1999] 11 BLLR 1117 (LAC)). The arbitrator must hear all the evidence relating to the issue and decide afresh on the facts found proved whether the employee committed the misconduct for which he was dismissed or not. If not, the arbitrator is bound to find that the dismissal was substantively unfair, even though the employer acted reasonably based on information available to it at the time of the dismissal (John Grogan Dismissal 93 (2002)).
6.1.1.3 Mr. Ramphal disputed the substantive fairness of the dismissal, and the Respondent has the duty to prove the fairness thereof.
6.1.1.4 It is not disputed by the Applicant that the actions he had been charged with constitute misconduct. The Applicant merely denied committing such misconduct, i.e. that he conducted himself in an improper, disgraceful and unacceptable manner by making sexual and unacceptable comments to learners and by touching the buttocks of a learner.
6.1.1.5 I am mindful of the fact that although the Applicant was charged with improper, disgraceful and unacceptable conduct, that the actions of making a comment about a learner sucking a lollipop that it would have been nice if it was his dick, that her skirt was so short that he could see her ass, and touching the buttocks of a learner could have a clear and obvious sexual misconduct connotation. It is a natural response in matters relating to the sexual harassment, assault or abuse of children that the reasonable person might view such conduct with disgust and revulsion. This is even more applicable where a trust relationship is abused. As arbitrator one should however be conscious of the need to not to prejudge but to objectively consider the facts of the matter on a balance of probabilities and credibility of the evidence adduced.
6.1.1.6 In respect of the allegations of making the comments and touching the buttocks of the learner, the Applicant disputes the version of the witnesses, and denies any wrongdoing, and I must decide on a balance of probabilities which version to accept.
6.1.1.7 The Applicant’s defense in respect of the alleged comments and touching of buttocks is a blanket denial of any wrongdoing. He submits that it is all a fabrication of lies as a result of feud between him, a colleague Du Toit and Ms. Trent from the district office, who also was the Respondent’s representative in this matter.
6.1.1.8 I find the Applicant’s version improbable. The Applicant failed to put most of the allegations of a conspiracy to the Respondent’s witnesses. The Applicant testified that it was not in his nature to make inappropriate comments in class. However, his own witnesses testified that he often referred to learners as “you black guy” or “fat guy” which can easily be construed as being inappropriate comments.
6.1.1.9 The Applicant testified that he did not submit a grievance because it would have gone to Ms. Trent who already had a vendetta against him. I find this excuse invalid as he, as a member of SADTU, could have made sure that his grievance would be attended to with his union’s help. He also did not report Du Toit’s threats of assault to head office, and rather took the route of a protection order. I find it odd that he would not report such serious alleged criminal action by a colleague to his employer. The Applicant testified that he had a “feeling” that the principal, Du Toit and Ms. Trent conspired against him. He however could not provide any substance to this feeling. He also cannot explain why all the learners would lie at the same time and cannot provide substance to his allegation that Labuschagne was lying as well. The Applicant testified that Keyara also lied on Du Toit’s behest, but he never put that version to Keyara in cross-examination to allow her to respond to it. The Applicant testified that he assumes that although Du Toit was no longer at the School, he could still have had influence. He however once again did not provide any substance to his assumption. He testified that he did not put any of these allegations of a conspiracy to the witnesses because he only had interest in his own case. He did also not put it to Erwee that she was lying because she was upset because the Applicant caused her husband to be terminated for not being qualified. I find his explanation as to why he did not put these allegations of a conspiracy to the relevant witnesses, i.e. that he only had interest in his own case, unacceptable. The Applicant is represented by an extremely competent and experienced senior union official. The failure in this regard warrants a negative inference to be drawn in respect of the probability of that version.
6.1.1.10 The Applicant also was evasive during his testimony. His own witnesses Humphrey and Sadiki also contradicted each other in respect of whether the Applicant made jokes and comments in class. His witness Tilodi admitted that he could not remember much of what happened in 2016.
6.1.1.11 The Applicant called Pretty as a witness, who made a complete turnaround in her testimony from what she testified before. She testified that the Ms. Diederichs and Ms. George forced her to lie. However, the Applicant never mentioned them as being part of the alleged conspiracy against him. It then begs the question as to why they would have had any interest in forcing her to lie. Pretty testified that they threatened her that her school career would be over if she did not do what they wanted her to do. I find this version improbable. Pretty was already in grade 12, so it is unclear how her school career could have been under threat. She had the opportunity to come clean as soon as she finished her last exam in 2016, if she really felt that her school career was under threat, but she did not. She also testified that the two teachers prepared her for what was going to be asked of her in the disciplinary hearing, which I find highly improbable. She could not explain how they would have known what questions would be asked in the disciplinary hearing. I find Pretty to be an unreliable witness and reject her evidence in totality.
6.1.1.12 I find no probable reason why the witnesses Vanessa and Keyara, as well as the others accused of the conspiracy, would fabricate evidence against the Applicant. I find it highly improbable that they would have been convinced to become involved in such an elaborate scheme to falsely implicate the Applicant. The Applicant could not provide any substantial evidence that the alleged conspirators had anything to gain by falsely implicating the Applicant.
6.1.1.13 I also find it improbable that the witnesses would fabricate the version they testified to. One would expect a fabricated version to be much more dramatic in respect of where the Applicant touched Vanessa, for example, for maximum effect. If it was all planned, why was the witnesses reluctant to complain at first. If it was part of a scheme, one would have expected them to shout their feigned indignation from the rooftops as soon as possible.
6.1.1.14 The minor contradictions in the testimony of the Respondent’s witnesses do not impact on their credibility to the extent that their testimony in respect of the alleged inappropriate comments and touching should be discarded. Their evidence is substantially satisfactorily in relation to material issues. Where there are two conflicting versions of the facts the arbitrator should weigh up each version considering all relevant factors. I must consider the evidence of the witnesses to determine which version is more probable in the circumstances and should be accepted as a true reflection of the events that preceded the dismissal of the Applicant.
6.1.1.15 The risk of false incrimination in sexual cases is addressed in Hoffman and Zeffert, The South African Law of Evidence, 4th Edition, Butterworths, 1992, as follows:
“Corroboration is the most satisfactory indication that the Complainant is truthful, but false evidence by the accused or his failure to testify may also be taken into account, as may any other feature of the case which shows that the Complainant’s evidence is reliable and that of the accused false.”. The Respondent’s witnesses’ version has been materially the same throughout the disciplinary and arbitration process. I find it improbable that they would make up such a detailed version of events without any reason while in their matric year, which would just add unnecessary and unwanted stress in an already stressful year. The Applicant’s version that is a fabrication is not plausible.
6.1.1.16 I can find no substance in the allegation that the Respondent’s version is a fabrication and a lie. I can find no probable motive for the witnesses to fabricate evidence and lie at the arbitration hearing. The Applicant could not provide any probable evidence that would support such notion. I find no substance in the Applicant’s version that a feud between him and Du Toit and Ms. Trent is behind the attack on him. I therefore find the evidence of the Respondent’s witnesses given at the arbitration hearing in respect of the conduct of the Applicant in his class to be credible and probable. I find that it was proven on balance of probabilities that the Applicant conducted himself in an improper, disgraceful and unacceptable manner by making sexual and unacceptable comments to learners and by touching the buttocks of a learner.
6.1.1.17 With consideration of all the relevant cautionary rules I find that the Respondent provided evidence that proves on a balance of probabilities that Mr. Ramphal committed the alleged misconduct he was found guilty of. There is therefore evidence before me that proves that Mr. Ramphal contravened a rule or standard regulating conduct in, or of relevance to, the workplace.
6.1.2 WAS THE RULE A VALID OR REASONABLE RULE?
Considering the nature of the employer’s business, the circumstances in which it operates, the type of work performed by the employee and the environment in which the work is performed, it is accepted that the rules are valid, i.e. lawful and reasonable. It is reasonable to expect educators to refrain from disgraceful and improper conduct towards learners. It has also been specifically prohibited by legislation. There is no evidence that the rules had been abrogated by disuse because the employer had not relied on it for some time. The Applicant did in any event not place this issue in dispute.
6.1.3 WAS THE ACCUSED EMPLOYEE AWARE, OR COULD HE REASONABLY BE EXPECTED TO HAVE BEEN AWARE, OF THE RULE?
What is required by the provisions of paragraph 7 of Schedule 8 for a dismissal for misconduct to be fair is that “the employee was aware or could be reasonably expected to have been aware of the rule or standard”. The offence the employee has been charged with appears in the Employment of Educators Act, no. 76 of 1998. The Applicant did not place knowledge of the rule in dispute.
6.1.4 HAS THE RULE BEEN CONSISTENTLY APPLIED BY THE EMPLOYER?
There is no evidence of inconsistent and arbitrary action on the part of the employer in this matter. There is no evidence that the employer has habitually or frequently condoned similar offences in the past. There is also no evidence that the employer’s standards differ materially from those applied by other employers.
6.1.5 WAS DISMISSAL AN APPROPRIATE SANCTION FOR THE CONTRAVENTION OF THE RULE?
6.1.5.1 In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness.
6.1.5. The Respondent has argued that dismissal is appropriate considering the nature of the transgression. I must consider whether dismissal would be an appropriate sanction, and whether a lesser sanction would serve the desired purpose. In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness. The case of Sidumo v Rustenburg Platinum Mines Ltd [2007] 28 ILJ 2405 (CC) dealt with the scope of commissioners’ powers when deciding whether the sanction of dismissal for proven misconduct is fair. The final decision whether the sanction of dismissal for proven misconduct is appropriate rests with the commissioner. I must therefore as impartial adjudicator consider all relevant circumstances in deciding whether the dismissal of the Applicant was the appropriate sanction initially.
6.1.5.3 The Code of Good Conduct: Dismissal, states that one of the requirements of a fair dismissal for misconduct is that the dismissal must be an “appropriate” remedy, in the light of the facts of the case.
6.1.5.4 In an earlier dictum of Conradie JA a similar approach was also followed when the court pronounced that -:
“A dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise.”. The courts have accepted that the ultimate justification for employers’ power to impose discipline flows from their right to manage their business effectively. (See De Beers Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC)).
6.1.5.5 It is well established that the relationship between employer and employee is in essence one of trust and confidence and that, at common law, conduct clearly inconsistent therewith entitles the “innocent” party to cancel the agreement (See Angehrn and Piel v Federal Cold Storage Co Ltd 1908 TS 761 at 777–778.)
6.1.5.6 I am mindful of the fact that although the Applicant was charged with and found guilty at the disciplinary hearing of improper, disgraceful and unacceptable conduct, that the actions of sexual comments and touching the buttocks of a learner have a clear and obvious sexual misconduct connotation. The Applicant as educator engaged in conduct which is in direct contravention of the values and obligations prescribed by The Code of Professional Ethics of Educators. He failed to act in a proper and becoming way so that his behavior does not bring the teaching profession into disrepute. The Code places emphasis on educators refraining from any form of improper, disgraceful, unacceptable or sexual assault on or harassment of learners at a school, and not abusing the position he holds for personal gain. Section 28(2) of the Constitution of the Republic of South Africa, no. 108 of 1996 provides that a child’s best interests are of paramount importance in every matter concerning the child. This is a factor that I keep in mind as surely it was not in the best interest of the female learners to be treated in that manner by an educator.
6.1.5.7 Having considered all the facts before me, including but not limited to, the gravity of the offence, the position of trust the Applicant was employed in, and the years of service of the Applicant I find that the sanction of dismissal is fair and appropriate in the circumstances. The Applicant’s years of service cannot outweigh the gravity and seriousness of his offence. The Labour Appeal Court has held that long service cannot in itself provide a basis for rendering a dismissal unfair. See De Beers Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC).
6.2 PR0CEDURAL FAIRNESS OF THE DISMISSAL
6.2.1 Section 188 of the Labour Relations Act, 66 of 1995, confirms that procedural fairness is an independent requirement for a fair dismissal. In considering the procedural fairness of the dismissal of Mr. Ramphal for misconduct, the principles contained in item 4 of Schedule 8 ― The Code of Good Practice: Dismissal of the Labour Relations Act, 66 of 1995, is followed. Stricter standards are also applied to large employers than are expected of smaller employers.
6.2.2 Schedule 2: Disciplinary Code and Procedures for Educators, promulgated in terms of the Employment of Educators Act, no. 76 of 1998, states that discipline must be applied in a prompt, fair, consistent and just manner.
6.2.3 Although the Respondent did not initiate the disciplinary hearing within the prescribed 90-day period, I find the delay in the present circumstances short enough not to have caused any real prejudice to the Applicant.
6.3.4 I find no substance in the allegations of procedural unfairness in respect of the Respondent proceeding with the disciplinary hearing in the absence of the Applicant. The Applicant did not attend the first sitting on 23 February 2017 and was then provided with a notification to attend the hearing on 2 March 2017. The Applicant relies on a letter from a psychologist who recommended that his hearing be postponed on the basis that his emotional state was conducive to attend the hearing. Although the Applicant received the letter from the psychologist already on 28 February 2017, he made no effort to convey this information to his employer timeously. He only gave it to his union representative on 1 March 2017, and then simply failed to go to the hearing on 2 March 2017, although he was fit enough to go to work. He was not present at the scheduled time, and only when the initiator called him, he conveyed to her that he was sending his union representative with a letter.
6.3.5 After the chairperson considered his representative’s submissions, and the request for postponement was denied, the Applicant was informed of the ruling, and was afforded 90 minutes to present himself. He was also informed that should he remain absent, the hearing would continue in his absence. The Applicant’s response was to simply switch off his phone and ignore the ultimatum to present himself. One could expect of the Applicant to have acted less obstructive in those specific circumstances. I cannot fault the chairperson’s reasoning at the time that the Applicant’s conduct created a different impression as to his readiness and competency to attend the hearing.
6.3.6 The letter which the Applicant relied upon to justify his absence, also did not constitute a proper medical certificate. It was also not a proper psychological assessment report, but merely a one-page letter recommending a postponement based on one consultation.
6.3.7 The Applicant received adequate and proper notice of the hearing. He was properly informed of the date, time and place of the hearing. An employer may proceed in the absence of an employee if the employee fails to attend without good cause. I find that the employer was justified to proceed in his absence.
6.3.8 I Refer to Old Mutual Life Assurance Co. SA Ltd. v Gumbi (2007) 28 ILJ 1499 (SCA) where it was ruled that it is correct for the employer to proceed in the absence of the employee after a request for a postponement based on unconvincing medical grounds was refused.
7 AWARD
7.1 I find that the dismissal of Mr. Ramphal was for a fair reason related to his conduct, and that the dismissal was effected in accordance with a fair procedure. He is not entitled to any relief.
COEN HAVENGA
ARBITRATOR
Province: Gauteng
Applicant: SADTU obo V RAMPHAL
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Misconduct
Venue: the Council’s offices in Centurion
Award Date: 2 July 2019
Arbitrator: COEN HAVENGA
SADTU obo V RAMPHAL “the Applicant”
and
DEPARTMENT OF EDUCATION – GAUTENG PROVINCE “the Respondent”
ARBITRATION AWARD
Case Number: PSES442 – 17/18GP
Last date of arbitration: 10 May 2019
Final closing arguments submitted in writing on: 30 May 2019
Date of award: 02 July 2019 (extension granted)
COEN HAVENGA
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
1 DETAILS OF HEARING AND REPRESENTATION
1.1 The last day of the hearing of the arbitration took place on 10 May 2019 at the Council’s offices in Centurion. The last of the written closing arguments were received on 30 May 2019 and will form part of the record. The finalization of the matter was delayed by the intermittent unavailability of a Skype facility, the in limine application for re-opening of the Respondent’s case as well as the unforeseen and lengthy hospitalization of the commissioner, and the subsequent recovery process. The Applicant is SADTU on behalf of Mr. V Ramphal, represented by Mr. T Ngcobo, a union official. The Respondent is the Gauteng Department of Education, represented by Ms. C Trent.
2 TERMS OF REFERENCE AND ISSUES TO BE DECIDED
2.1 The arbitration takes place in terms of the referral of the dispute by the Applicant.
2.2 During the preliminary proceedings the parties agreed that the following facts are common cause, and are accepted as proven:
2.2.1 The Applicant was employed by the Respondent as a PL1 educator at HS Vryburger (“the School”).
2.2.2 The Applicant earned R22 447,50 per month at the time of his dismissal.
2.2.3 The Applicant had been employed since 1 May 2012.
2.2.4 The Applicant was charged in terms of section 18(1)(q) of the Employment of Educators Act, no. 76 of 1998, in that he conducted himself in an improper, disgraceful and unacceptable manner by making sexual and unacceptable comments to learners and by touching the buttocks of a learner. The Applicant was found guilty of three counts of misconduct.
2.2.5 He was dismissed on 28 August 2017, following a disciplinary hearing and unsuccessful appeal.
2.3 The following issues were placed in dispute:
SUBSTANTIVE FAIRNESS:
2.3.1 The Applicant disputes that he committed the misconduct that he had been found guilty of. During his opening statement the Applicant’s representative stated that the allegations are a fabrication to get back at the Applicant, and that the witnesses were instructed what to say by other educators who had a problem with the Applicant.
PROCEDURAL FAIRNESS:
2.3.2 The Applicant disputes the procedural fairness of his dismissal.
2.3.3 The disciplinary hearing was unfairly held in the absence of the Applicant, and not held in accordance with legislation.
2.3.4 The period taken to charge the Applicant was not in line with the prescriptions of the legislation.
2.4 The relief the Applicant seeks from this arbitration hearing is to be reinstated retrospectively without loss of income or benefits.
2.5 The Respondent tabled documents contained in Bundle A. The Applicant tabled documents contained in bundle B.
3 PRELIMINARY ISSUES
3.1 Although the matter relates to allegations of improper, disgraceful and unacceptable conduct towards learner who were minors at the time of the alleged incident, all the witnesses were 18 years and older at the time they testified, and neither party applied for their testimony to be heard in camera, or by making use of an intermediary. Some of the witnesses testified through Skype.
4 SUMMARY OF EVIDENCE
4.1 The proceedings have been recorded digitally, and a summary of the Respondent’s and Applicant’s witnesses’ evidence follows below. What follows is only a summary of evidence deduced at the arbitration hearing and does not purport to be a verbatim transcription of all the testimony given. The record of the proceedings will reflect the complete testimony of the witnesses.
Respondent’s case
4.2 VANESSA SAFI-MUYUMBA (“Vanessa”) testified under oath that she is 20 years old and attended the School from grade 8 to 12. She completed grade 12 in 2016. The allegations contained in Allegation 1 in A3 are true. She had a lollipop in her mouth after break. When she sat down the Applicant asked two boys next to her whether they agree that she was sucking it nicely, and he said that it would have been nice if it was his dick. She felt really disgusted by what the Applicant said. She told her mother about it, but her mother said she should not take it too personal, and let it go. On 5 May 2016 she was walking out of the class last and felt a touch on her buttocks. She swung around to see who did it, and the only the Applicant was behind her. She was shocked, confused and embarrassed by it. She again decided to let it go. Her friend confirmed the next day that the Applicant was standing behind Vanessa. She did not tell her mother about the that incident because of the was her mother responded previously. She did send a message to her dad who was out of the country. He suggested that she tell the School.
4.3 Vanessa first told Mr. Du Toit (“Du Toit”) who told her to rather find a female teacher to talk to. Her dad did send an email to the School asking them to take action. The School called Ms. Labuschagne to come and talk to the learners. Vanessa spoke to Ms. Peens and Ms. Erwee. The Applicant teased her by saying that she was married to another teacher, Du Toit, and that she was white.
4.4 During cross-examination Vanessa testified that Mtumpa and Humphrey were with her when the Applicant made the comments about the lollipop. It is the truth that he made those statements. Regarding the second incident, she might be mistaken about the date, but the incident of touching her buttocks did happen. She is not making it up. She never stayed with Du Toit. He was her dad’s advocate before, and her dad trusted him to help her in school. It is not true that she was used by Du Toit to fabricate allegations against the Applicant after the Applicant got a protection order against Du Toit. She did not send a voice message to Debra about making up evidence. The allegations against the Applicant is not a fabrication. She has no reason to leave her work and come and testify falsely against the Applicant.
4.5 DANIELLA DENOBREGA (“Daniella”) testified under oath that she is 19 years old and was in the School from 21 April 2015 to 27 November 2017. On her first day at School she was with her friend Liberty Rock. They passed the Applicant’s classroom, and the Applicant said to her that she was a very pretty girl, that she looked like a handful and asked if could take her off Liberty’s hands. He addressed the comments to both of them. Kiara Ngwenya was Daniella’s best friend. Daniela was her panic buddy. Kiara was diagnosed with anxiety disorder, and she would contact Daniella to bring her medication when necessary. The Applicant once told Keyara her skirt was short he could almost see her ass. She could see Keyara was upset when she told Daniella about it afterwards. Liberty Rock was her girlfriend until the beginning of 2017.
4.6 During cross-examination Daniella testified that she often heard the Applicant say how big his dick was and how small the boys’ dicks were. She did not hear the comment made to Vanessa. Keyara told her what the Applicant said to her about her short dress, she did not hear it or witness the incident. She did hear the Applicant make a comment about Keyara’s legs being nice.
4.7 JOHANNA CATHERINA LABUSCHAGNE (“Labuschagne”) testified under oath that she was a deputy chief education specialist. She did crisis intervention. She retired at the end of 2016 with 40 years’ experience. A20 reflects the report she compiled on 18 May 2016. She read her report into the record. She interviewed a lot of learners and found no motive for lying. All the children had issues with the racial remarks made by the Applicant. She could find no motive for matric learners to make up such story that would just add to their stress before the preliminary exams. She find it improbable that learners from different racial groups and backgrounds would collude in that way.
4.8 During cross-examination Labuschagne testified that she randomly selected learners from a class list to interview. She selected Vanessa because her parents complained. She did not interview Daniella. She found grounds for disciplinary action. She saw the Applicant’s actions as him grooming the learners. A person would use jokes and sexual inuendo in a light way to test boundaries.
4.9 BIANCA ERWEE (“Erwee”) testified under oath that she had been at the School for nine years. She was part of the school-based support team (SBST). Vanessa reported to her that comments were made in the class that made them feel uncomfortable. She also said the Applicant touched her inappropriately on her buttocks. She was scared to go to the Applicant’s class. Erwee told her to report it to her father, who then sent an email to the School. Labuschagne then intervened at the School.
4.10 During cross-examination Erwee testified that it was improbable that so many learners would make up stories against the Applicant. Keyara came running to her in her class after the Applicant made the comments to her. Her first words were that she was upset and could not take it anymore.
4.11 KEYARA NGWENYA (“Keyara”) testified under oath that she is 18 years old and was in the School in 2015 and 2016. The Applicant always made inappropriate comments in class to Pretty and Refentse. Pretty is an albino, and he would make remarks about her whiteness. He would say Refentse was so dark, if one turned off the light, he was invisible. He told Keyara her skirt was so short he could see her ass. She felt embarrassed, exposed and uncomfortable. She put her bag on her lap. She knew her skirt was not short. She felt as if he looked at her naked. The Applicant would say that he has a big dick, and that they could ask his wife or their moms. She had anxiety disorder since 2014. She managed it fine until his class. Daniella was her panic buddy. She is testifying because she does not want the Applicant to get away with what he did.
4.12 During cross-examination Keyara testified that the comments did not bother her, but it then became more frequent, personal and inappropriate. It was always of a sexual nature. She did not send the Applicant a Facebook friend request. The Applicant did make the comment about her short skirt and ass. Liberty Rock intimidated her to try and convince her to withdraw the case. She however decided that she was strong enough to see it through.
4.13 MAMPHAYENG MONICAH MAREDI (“Maredi”) testified under oath she is a SCS for teacher development at the Teachers’ Centre. Her manager is Malesela Tolo. The Applicant was brought to the Centre because he had a case pending. On 2 March 2017 she was at the district office to fetch training material. She met Ms. Trent there, who told her she was preparing for the case of the Applicant. Maredi went to the Centre and found the Applicant there. She asked him whether he should not have been at his hearing. He told her he was aware of the hearing, but that he was not going, as his powerful SADTU representative will be there to represent him. Maredi told him that as far as she knew, he had to be there as well. The Applicant said his brother passed away. She sympathized with him, and they separated. The Applicant told her he was bereaved, but he looked normal. He did not mention being ill or being booked off.
4.14 During cross-examination Maredi testified that if a person looked normal it did not mean he was not sick. He did say he lost a brother, but he did not look bereaved.
4.15 MALESELA TOLO (“Tolo”) testified under oath that he was stationed at the Teachers’ Centre as deputy chief education specialist. The Applicant was brought to the Centre during his precautionary suspension. A17/18 reflects Tolo’s report in respect of the Applicant’s attendance at the Centre. Tolo was concerned that the Applicant did not communicate his whereabouts to him. He would sometimes write that he was present, while he was not. He would just leave without asking permission. On 2 March 2017 he saw the Applicant at the Centre. Maredi told him what the Applicant told her. He was summoned to the hearing by Ms. Trent. The Applicant did not tell him about the doctor’s letter when he saw him in the morning. He sent Tolo a text message that he would be leaving early. When he saw him earlier the Applicant looked normal.
4.16 During cross-examination Tolo testified that A19, the letter from the psychologist, does not say that the Applicant cannot attend work, but that he cannot attend the hearing. He was at work.
Applicant’s case
4.17 VISHAM RAMPHAL, the Applicant, testified under oath that he was the civil technology teacher at the School since 2012. He denies the allegations in Allegation 1, 2 and 3. He received a lot of threats from Du Toit, and he got a protection order against him. He went to the court on 5 May 2016. He had no interaction with any learner on that day. He thinks Vanessa fabricated the allegations because of his feud with Du Toit. Vanessa attended all her classes. He did not coerce any learner to threaten witnesses. It is not in his nature to make inappropriate comments in class. He never made comments about leaners’ skirts or asses. He never made comments about Pretty being white. He applied for a deputy principal post in 2014. The whole process came to a standstill, and they wrote to Ms. Trent to enquire why. Ms. Trent rebuked them and told them they had no right to lay a complaint. Then Du Toit started the vendetta against him. Ms. Trent and the principal had a vendetta against him. The learners were used in that process.
4.18 he was placed at the Teachers’ Centre without facilities to do work. They slept in their cars. It was absolutely inhumane conditions. They delayed charging him with 5 months. His health and finances were depleted. He was not charged within the required ninety days. His youngest brother passed away on 19 February 2017 when he died in the Applicant’s arms, after he cut himself with a glass door. The Applicant did the funeral arrangements. On 23 February 2017 he received the notice for the hearing on 2 March 2017. He did not attend the hearing because he was not emotionally well after his brother died. He could not prepare properly. He realised he needed help and went to see a psychologist. She concluded that he was not mentally fit to attend the hearing on 2 March 2017. Her report is reflected in A19. He gave the letter to the union who said they would deliver it. He did go to work because he was not booked off from work. Ms Trent called him and he told her that his union will bring the letter. He later received text messages from Ms. Trent that if he was not at the hearing by 12h00, they were going to proceed in his absence. He was not in a state to properly prepare and represent himself. He did not ask for a postponement prior to 2 March 2017.
4.17 During cross-examination the Applicant testified that he did not submit a grievance because it would have gone to Ms. Trent who already had a vendetta against him. He did not report Du Toit’s threats of assault to head office. He took the route of a protection order.
Note: The matter was adjourned at this stage to allow the Respondent to file an application for re-opening of its case. The parties filed papers, and the Applicant then also raised an objection to the locus standi of the Respondent’s representative. After consideration of the two issues a ruling was issued, which forms part of this record. The Respondent’s application for re-opening of its case was dismissed, and the Applicant’s objection to the locus standi of the Respondent’s representative was also dismissed. The arbitration hearing reconvened and the cross-examination of the Applicant then continued.
4.18 The Applicant had the feeling that the principal, Du Toit and Ms. Trent conspired against him. He cannot explain why all the learners would lie at the same time. He cannot answer the question whether Labuschagne was lying as well. He does not know what would motivate her to lie. The teachers in the School forced the learners to lie. Vanessa was used by Du Toit to lie. Keyara also lied on Du Toit’s behest. The Applicant agrees that he did not put that version to Keyara. The Applicant assumes that although Du Toit was no longer at the School, he could still have had influence. He did not put any of these allegations of a conspiracy to the witnesses because he only had interest in his case. He did not put it to Erwee that she was lying because she was upset because the Applicant caused her husband to be terminated for not being qualified. He knew on 28 February 2017 that he was not going to attend the hearing, but he did not notify the employer. He took the letter to the union on 1 March 2017. He went to the psychologist on 28 February 2017, and she then issued the letter. It was not done with the intention to avoid the hearing. Ms Trent did call him at the Teachers’ Centre and informed that they will proceed if he did not present himself. He told her that his representative will submit a letter from the doctor.
4.19 PRETTY HLONGWANE (“Pretty”) testified under oath that she was a learner in 2017 at the School. She testified as a witness in the Applicant’s hearing. She is here to clear her conscience. the evidence she gave there was not the truth. She was forced by Ms. Diederichs and Ms. George forced her to lie. She had no choice but to lie. They were threatened that their school career would be over if they did not lie. She never gave a statement to anyone from the Department. She was not forced or paid to testify now on behalf of the Applicant. The Applicant did not say to Keyara that her skirt was so short he could see her ass.
4.20 During cross-examination Pretty testified that she doesn’t know why Ms. Diederichs and Ms. George forced her to lie. She had to memorise what was written on a piece of paper. Her emotional state when she told her story then was all an act. She did not respond when it was put to her that she was a good actress then. The teachers knew what was going to be asked in the disciplinary hearing and prepared her for that. She does not know how they could have known what would be asked. She does not know why Labuschagne would lie about interviewing her. She does not know why Daniella and Keyara would lie.
4.21 During questioning by the commissioner to obtain clarity Pretty testified that she cannot explain why she did not come clean after she wrote her matric in 2017, when her school career was no longer under threat.
4.22 HUMPHREY LIKANDO (“Humphrey”) testified under oath that he was in grade 12 in 2016. He did not see the Applicant making a comment about sucking a lollipop. The Applicant only made jokes like saying to him “you black guy”. He never heard him make racist or sexist comments.
4.23 During cross-examination Humphrey testified that the Applicant would call a learner who was short “shorty”, or someone “fat guy”. He never heard the Applicant talk about dicks. The girls are lying. The Applicant’s jokes did not bother him. Nobody ever threatened him or forced him to say anything.
4.24 ALPRAYER SADIKI (“Sadiki”) testified under oath per skype that in 2016 he was in grade 11 in the School. The Applicant never said Keyara’s skirt was s short he could see her ass. He never heard him using sexual words in class.
4.25 During cross-examination Sadiki testified that the Applicant would make jokes that would not offend learners. He cannot recall the jokes. He never heard him use the word dick. He never heard him use the term “fat boy”. He cannot think that the Applicant would say such things.
4.26 KOPANO TILODI (“Tilodi”) testified under oath per skype that in 2016 he was in grade 11 in the School. The Applicant never made a comment about Keyara’s skirt being short. He never made sexual remarks or jokes.
4.27 During cross-examination Tilodi testified that the Applicant was a humorous person. He did not make jokes out of context. He would make jokes that would lighten up the mood. Tilodi does not remember most of the things, as it happened in 2016. He cannot recall the Applicant using the terms “black guy” or “fat guy”. He never heard him talk about his dick.
5 SUMMARY OF ARGUMENT
5.1 Both parties submitted extensive written closing arguments which form part of the record and will not be repeated here. I have considered all the arguments, legal principles and case law referred to by the parties, together with the other evidence, oral and documentary, presented by the parties during the arbitration hearing, as reflected in the recording of the arbitration.
6 ANALYSIS OF EVIDENCE AND ARGUMENT
6.1 SUBSTANTIVE FAIRNESS OF THE DISMISSAL
In considering the substantive fairness of the dismissal of Mr. Ramphal for misconduct, the principles contained in Schedule 2: Disciplinary Code and Procedures for Educators, promulgated in terms of the Employment of Educators Act, no. 76 of 1998, as well as the Code of Good Practice for Dismissals in Schedule 8 of the Labour Relations Act, no. 66 of 1995, provide the following guidelines:
a) Whether or not the accused employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
b) If the rule or standard was contravened, whether or not –
i. The rule was a valid or reasonable rule or standard;
ii. The accused employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
iii. The employer has consistently applied the rule or standard.
iv. Dismissal was an appropriate sanction for the contravention of the rule or standard.
The dismissal of Mr. Ramphal is not in dispute, and the Respondent is therefore required to prove that the dismissal was substantively and procedurally fair. The standard of proof that is applicable in hearings of this nature is identical to the civil standard – “the employer must prove the case against the employee on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1.
6.1.1 WAS A RULE OR STANDARD REGULATING CONDUCT IN, OR OF RELEVANCE TO, THE WORKPLACE CONTRAVENED?
6.1.1.1 As stated above, the standard of proof that is applicable is identical to the civil standard – “the employer must prove the case against the employee on the balance of probabilities and not beyond reasonable doubt”.
6.1.1.2 Arbitration hearings are not merely reviews of the employer’s decision to dismiss employees, or the propriety of the procedures followed by the employer (John Grogan Dismissal 320 (2002)). An arbitration hearing constitutes a full rehearing on the merits plus an investigation of the fairness of the procedure followed by the employer. (See Gibb v Nedcor Ltd 1998 19 ILJ 364 (LC)). Arbitration amounts to a hearing de novo. The decision of the arbitrator is not reached with reference to the evidential material that was before the employer at the time of its enquiry, but on the evidential material placed before the arbitrator during the arbitration hearing. This means that all relevant evidence must be placed before the arbitrator in proper form, even if it has been fully canvassed at the employee’s disciplinary hearing. (See Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] JOL 20811 (CC), where the Court approved the LAC dictum in Count Fair Foods (Pty) Ltd v CCMA & Others [1999] 11 BLLR 1117 (LAC)). The arbitrator must hear all the evidence relating to the issue and decide afresh on the facts found proved whether the employee committed the misconduct for which he was dismissed or not. If not, the arbitrator is bound to find that the dismissal was substantively unfair, even though the employer acted reasonably based on information available to it at the time of the dismissal (John Grogan Dismissal 93 (2002)).
6.1.1.3 Mr. Ramphal disputed the substantive fairness of the dismissal, and the Respondent has the duty to prove the fairness thereof.
6.1.1.4 It is not disputed by the Applicant that the actions he had been charged with constitute misconduct. The Applicant merely denied committing such misconduct, i.e. that he conducted himself in an improper, disgraceful and unacceptable manner by making sexual and unacceptable comments to learners and by touching the buttocks of a learner.
6.1.1.5 I am mindful of the fact that although the Applicant was charged with improper, disgraceful and unacceptable conduct, that the actions of making a comment about a learner sucking a lollipop that it would have been nice if it was his dick, that her skirt was so short that he could see her ass, and touching the buttocks of a learner could have a clear and obvious sexual misconduct connotation. It is a natural response in matters relating to the sexual harassment, assault or abuse of children that the reasonable person might view such conduct with disgust and revulsion. This is even more applicable where a trust relationship is abused. As arbitrator one should however be conscious of the need to not to prejudge but to objectively consider the facts of the matter on a balance of probabilities and credibility of the evidence adduced.
6.1.1.6 In respect of the allegations of making the comments and touching the buttocks of the learner, the Applicant disputes the version of the witnesses, and denies any wrongdoing, and I must decide on a balance of probabilities which version to accept.
6.1.1.7 The Applicant’s defense in respect of the alleged comments and touching of buttocks is a blanket denial of any wrongdoing. He submits that it is all a fabrication of lies as a result of feud between him, a colleague Du Toit and Ms. Trent from the district office, who also was the Respondent’s representative in this matter.
6.1.1.8 I find the Applicant’s version improbable. The Applicant failed to put most of the allegations of a conspiracy to the Respondent’s witnesses. The Applicant testified that it was not in his nature to make inappropriate comments in class. However, his own witnesses testified that he often referred to learners as “you black guy” or “fat guy” which can easily be construed as being inappropriate comments.
6.1.1.9 The Applicant testified that he did not submit a grievance because it would have gone to Ms. Trent who already had a vendetta against him. I find this excuse invalid as he, as a member of SADTU, could have made sure that his grievance would be attended to with his union’s help. He also did not report Du Toit’s threats of assault to head office, and rather took the route of a protection order. I find it odd that he would not report such serious alleged criminal action by a colleague to his employer. The Applicant testified that he had a “feeling” that the principal, Du Toit and Ms. Trent conspired against him. He however could not provide any substance to this feeling. He also cannot explain why all the learners would lie at the same time and cannot provide substance to his allegation that Labuschagne was lying as well. The Applicant testified that Keyara also lied on Du Toit’s behest, but he never put that version to Keyara in cross-examination to allow her to respond to it. The Applicant testified that he assumes that although Du Toit was no longer at the School, he could still have had influence. He however once again did not provide any substance to his assumption. He testified that he did not put any of these allegations of a conspiracy to the witnesses because he only had interest in his own case. He did also not put it to Erwee that she was lying because she was upset because the Applicant caused her husband to be terminated for not being qualified. I find his explanation as to why he did not put these allegations of a conspiracy to the relevant witnesses, i.e. that he only had interest in his own case, unacceptable. The Applicant is represented by an extremely competent and experienced senior union official. The failure in this regard warrants a negative inference to be drawn in respect of the probability of that version.
6.1.1.10 The Applicant also was evasive during his testimony. His own witnesses Humphrey and Sadiki also contradicted each other in respect of whether the Applicant made jokes and comments in class. His witness Tilodi admitted that he could not remember much of what happened in 2016.
6.1.1.11 The Applicant called Pretty as a witness, who made a complete turnaround in her testimony from what she testified before. She testified that the Ms. Diederichs and Ms. George forced her to lie. However, the Applicant never mentioned them as being part of the alleged conspiracy against him. It then begs the question as to why they would have had any interest in forcing her to lie. Pretty testified that they threatened her that her school career would be over if she did not do what they wanted her to do. I find this version improbable. Pretty was already in grade 12, so it is unclear how her school career could have been under threat. She had the opportunity to come clean as soon as she finished her last exam in 2016, if she really felt that her school career was under threat, but she did not. She also testified that the two teachers prepared her for what was going to be asked of her in the disciplinary hearing, which I find highly improbable. She could not explain how they would have known what questions would be asked in the disciplinary hearing. I find Pretty to be an unreliable witness and reject her evidence in totality.
6.1.1.12 I find no probable reason why the witnesses Vanessa and Keyara, as well as the others accused of the conspiracy, would fabricate evidence against the Applicant. I find it highly improbable that they would have been convinced to become involved in such an elaborate scheme to falsely implicate the Applicant. The Applicant could not provide any substantial evidence that the alleged conspirators had anything to gain by falsely implicating the Applicant.
6.1.1.13 I also find it improbable that the witnesses would fabricate the version they testified to. One would expect a fabricated version to be much more dramatic in respect of where the Applicant touched Vanessa, for example, for maximum effect. If it was all planned, why was the witnesses reluctant to complain at first. If it was part of a scheme, one would have expected them to shout their feigned indignation from the rooftops as soon as possible.
6.1.1.14 The minor contradictions in the testimony of the Respondent’s witnesses do not impact on their credibility to the extent that their testimony in respect of the alleged inappropriate comments and touching should be discarded. Their evidence is substantially satisfactorily in relation to material issues. Where there are two conflicting versions of the facts the arbitrator should weigh up each version considering all relevant factors. I must consider the evidence of the witnesses to determine which version is more probable in the circumstances and should be accepted as a true reflection of the events that preceded the dismissal of the Applicant.
6.1.1.15 The risk of false incrimination in sexual cases is addressed in Hoffman and Zeffert, The South African Law of Evidence, 4th Edition, Butterworths, 1992, as follows:
“Corroboration is the most satisfactory indication that the Complainant is truthful, but false evidence by the accused or his failure to testify may also be taken into account, as may any other feature of the case which shows that the Complainant’s evidence is reliable and that of the accused false.”. The Respondent’s witnesses’ version has been materially the same throughout the disciplinary and arbitration process. I find it improbable that they would make up such a detailed version of events without any reason while in their matric year, which would just add unnecessary and unwanted stress in an already stressful year. The Applicant’s version that is a fabrication is not plausible.
6.1.1.16 I can find no substance in the allegation that the Respondent’s version is a fabrication and a lie. I can find no probable motive for the witnesses to fabricate evidence and lie at the arbitration hearing. The Applicant could not provide any probable evidence that would support such notion. I find no substance in the Applicant’s version that a feud between him and Du Toit and Ms. Trent is behind the attack on him. I therefore find the evidence of the Respondent’s witnesses given at the arbitration hearing in respect of the conduct of the Applicant in his class to be credible and probable. I find that it was proven on balance of probabilities that the Applicant conducted himself in an improper, disgraceful and unacceptable manner by making sexual and unacceptable comments to learners and by touching the buttocks of a learner.
6.1.1.17 With consideration of all the relevant cautionary rules I find that the Respondent provided evidence that proves on a balance of probabilities that Mr. Ramphal committed the alleged misconduct he was found guilty of. There is therefore evidence before me that proves that Mr. Ramphal contravened a rule or standard regulating conduct in, or of relevance to, the workplace.
6.1.2 WAS THE RULE A VALID OR REASONABLE RULE?
Considering the nature of the employer’s business, the circumstances in which it operates, the type of work performed by the employee and the environment in which the work is performed, it is accepted that the rules are valid, i.e. lawful and reasonable. It is reasonable to expect educators to refrain from disgraceful and improper conduct towards learners. It has also been specifically prohibited by legislation. There is no evidence that the rules had been abrogated by disuse because the employer had not relied on it for some time. The Applicant did in any event not place this issue in dispute.
6.1.3 WAS THE ACCUSED EMPLOYEE AWARE, OR COULD HE REASONABLY BE EXPECTED TO HAVE BEEN AWARE, OF THE RULE?
What is required by the provisions of paragraph 7 of Schedule 8 for a dismissal for misconduct to be fair is that “the employee was aware or could be reasonably expected to have been aware of the rule or standard”. The offence the employee has been charged with appears in the Employment of Educators Act, no. 76 of 1998. The Applicant did not place knowledge of the rule in dispute.
6.1.4 HAS THE RULE BEEN CONSISTENTLY APPLIED BY THE EMPLOYER?
There is no evidence of inconsistent and arbitrary action on the part of the employer in this matter. There is no evidence that the employer has habitually or frequently condoned similar offences in the past. There is also no evidence that the employer’s standards differ materially from those applied by other employers.
6.1.5 WAS DISMISSAL AN APPROPRIATE SANCTION FOR THE CONTRAVENTION OF THE RULE?
6.1.5.1 In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness.
6.1.5. The Respondent has argued that dismissal is appropriate considering the nature of the transgression. I must consider whether dismissal would be an appropriate sanction, and whether a lesser sanction would serve the desired purpose. In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness. The case of Sidumo v Rustenburg Platinum Mines Ltd [2007] 28 ILJ 2405 (CC) dealt with the scope of commissioners’ powers when deciding whether the sanction of dismissal for proven misconduct is fair. The final decision whether the sanction of dismissal for proven misconduct is appropriate rests with the commissioner. I must therefore as impartial adjudicator consider all relevant circumstances in deciding whether the dismissal of the Applicant was the appropriate sanction initially.
6.1.5.3 The Code of Good Conduct: Dismissal, states that one of the requirements of a fair dismissal for misconduct is that the dismissal must be an “appropriate” remedy, in the light of the facts of the case.
6.1.5.4 In an earlier dictum of Conradie JA a similar approach was also followed when the court pronounced that -:
“A dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise.”. The courts have accepted that the ultimate justification for employers’ power to impose discipline flows from their right to manage their business effectively. (See De Beers Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC)).
6.1.5.5 It is well established that the relationship between employer and employee is in essence one of trust and confidence and that, at common law, conduct clearly inconsistent therewith entitles the “innocent” party to cancel the agreement (See Angehrn and Piel v Federal Cold Storage Co Ltd 1908 TS 761 at 777–778.)
6.1.5.6 I am mindful of the fact that although the Applicant was charged with and found guilty at the disciplinary hearing of improper, disgraceful and unacceptable conduct, that the actions of sexual comments and touching the buttocks of a learner have a clear and obvious sexual misconduct connotation. The Applicant as educator engaged in conduct which is in direct contravention of the values and obligations prescribed by The Code of Professional Ethics of Educators. He failed to act in a proper and becoming way so that his behavior does not bring the teaching profession into disrepute. The Code places emphasis on educators refraining from any form of improper, disgraceful, unacceptable or sexual assault on or harassment of learners at a school, and not abusing the position he holds for personal gain. Section 28(2) of the Constitution of the Republic of South Africa, no. 108 of 1996 provides that a child’s best interests are of paramount importance in every matter concerning the child. This is a factor that I keep in mind as surely it was not in the best interest of the female learners to be treated in that manner by an educator.
6.1.5.7 Having considered all the facts before me, including but not limited to, the gravity of the offence, the position of trust the Applicant was employed in, and the years of service of the Applicant I find that the sanction of dismissal is fair and appropriate in the circumstances. The Applicant’s years of service cannot outweigh the gravity and seriousness of his offence. The Labour Appeal Court has held that long service cannot in itself provide a basis for rendering a dismissal unfair. See De Beers Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC).
6.2 PR0CEDURAL FAIRNESS OF THE DISMISSAL
6.2.1 Section 188 of the Labour Relations Act, 66 of 1995, confirms that procedural fairness is an independent requirement for a fair dismissal. In considering the procedural fairness of the dismissal of Mr. Ramphal for misconduct, the principles contained in item 4 of Schedule 8 ― The Code of Good Practice: Dismissal of the Labour Relations Act, 66 of 1995, is followed. Stricter standards are also applied to large employers than are expected of smaller employers.
6.2.2 Schedule 2: Disciplinary Code and Procedures for Educators, promulgated in terms of the Employment of Educators Act, no. 76 of 1998, states that discipline must be applied in a prompt, fair, consistent and just manner.
6.2.3 Although the Respondent did not initiate the disciplinary hearing within the prescribed 90-day period, I find the delay in the present circumstances short enough not to have caused any real prejudice to the Applicant.
6.3.4 I find no substance in the allegations of procedural unfairness in respect of the Respondent proceeding with the disciplinary hearing in the absence of the Applicant. The Applicant did not attend the first sitting on 23 February 2017 and was then provided with a notification to attend the hearing on 2 March 2017. The Applicant relies on a letter from a psychologist who recommended that his hearing be postponed on the basis that his emotional state was conducive to attend the hearing. Although the Applicant received the letter from the psychologist already on 28 February 2017, he made no effort to convey this information to his employer timeously. He only gave it to his union representative on 1 March 2017, and then simply failed to go to the hearing on 2 March 2017, although he was fit enough to go to work. He was not present at the scheduled time, and only when the initiator called him, he conveyed to her that he was sending his union representative with a letter.
6.3.5 After the chairperson considered his representative’s submissions, and the request for postponement was denied, the Applicant was informed of the ruling, and was afforded 90 minutes to present himself. He was also informed that should he remain absent, the hearing would continue in his absence. The Applicant’s response was to simply switch off his phone and ignore the ultimatum to present himself. One could expect of the Applicant to have acted less obstructive in those specific circumstances. I cannot fault the chairperson’s reasoning at the time that the Applicant’s conduct created a different impression as to his readiness and competency to attend the hearing.
6.3.6 The letter which the Applicant relied upon to justify his absence, also did not constitute a proper medical certificate. It was also not a proper psychological assessment report, but merely a one-page letter recommending a postponement based on one consultation.
6.3.7 The Applicant received adequate and proper notice of the hearing. He was properly informed of the date, time and place of the hearing. An employer may proceed in the absence of an employee if the employee fails to attend without good cause. I find that the employer was justified to proceed in his absence.
6.3.8 I Refer to Old Mutual Life Assurance Co. SA Ltd. v Gumbi (2007) 28 ILJ 1499 (SCA) where it was ruled that it is correct for the employer to proceed in the absence of the employee after a request for a postponement based on unconvincing medical grounds was refused.
7 AWARD
7.1 I find that the dismissal of Mr. Ramphal was for a fair reason related to his conduct, and that the dismissal was effected in accordance with a fair procedure. He is not entitled to any relief.
COEN HAVENGA
ARBITRATOR