Case Number: PSES944-18/19GP
Applicant: SADTU obo Mogoba Josias Mashunye
Respondent: Gauteng Department of Education
Issue: Unfair Dismissal - Misconduct
Venue: Palm Ridge Magistrate Court, Palm Ridge.
Award Date: 6 August 2019
Arbitrator: Paul Phundu
Case Number: PSES944-18/19GP
Panellist: Paul Phundu
Date of Award: 06 August 2019
In the ARBITRATION between:
SADTU obo Mogoba Josias Mashunye Employee
Gauteng Department of Education Employer
Employer’s representative: Mr Motsiri Hlapolosa
Employer’s address: 17 Simmonds Street
Telephone: 011 355 1038
Email address: firstname.lastname@example.org
Employee’s representative: Mr Ben Moyo
Respondent’s address: 1613 Leboeng Section
Telephone: 061 459 9314
Email address: email@example.com
DETAILS OF HEARING AND REPRESENTATION
 This is an arbitration award issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) and herein after referred to as the Act. The matter was set-down for arbitration in terms of Section 188A of the Act.
 The Inquiry by Arbitrator proceedings was conducted on 12 April and 15 July 2019 at Palm Ridge Magistrate Court, Palm Ridge.
 The Employee party, Mr Mogoba Josias Mashunye was present and represented by, Mr Ben Moyo, Union Official from SADTU. The Employer party, Gauteng Department of Education was represented by, Mr Motsiri Hlapolosa, its Dispute Management Official.
 The proceedings were conducted in English and were digitally recorded. I also kept handwritten notes.
 The Employer submitted a bundle of documents into evidence. Documents marked as Annexure “A”. The content is not in dispute.
 Both parties submitted written closing arguments on 22 July 2019.
ISSUE TO BE DECIDED
 Whether the employee is guilty of Sexual Harassment or not, if so, I must determine an appropriate sanction.
BACKGROUND TO THE ISSUE
The employee is Employed by the Employer as an Educator based in Johannesburg East District. He is earning in access of the threshold, and has consented to the Inquiry by Arbitrator. The Employee specifically confirmed his consent to the Inquiry by arbitrator as per page 3 of the ELRC FORM E12. The Employee confirmed that he was satisfied that all his pre-enquiry procedural rights were complied with.
 The charge against the Employee is as follows:
• Charge: Allegation of Sexual Harassment- On the 15 January 2019, six learners came to the office of the Principal and reported a case of Sexual Harassment perpetrated by the applicant against a learner. It was alleged that the Employee touched the body and the breasts of the learner and make the learner to sit on top of his lap against her will.
 The Employee pleaded not guilty to the charge against him.
 The Employee accepted as common cause that a case of Sexual Assault was opened against him at the South African Police Station.
SURVEY OF EVIDENCE AND ARGUMENTS
The Employer had three witnesses who testified in support of its case. Employer’s evidence was briefly as follows:
 Learner A testified under oath that in January 2019 she was a Grade Eleven learner at Eqinisweni Secondary School. She was transferred to Tsosolotso Secondary School in February 2019.
 She left Eqinisweni Secondary School because she was sexually harassed by the Employee. The Employee taught her mathematics for only one week in January 2019. On the 12th of January 2019, she attended Saturday’s mathematics extra classes. She realised that she did not have a textbook and a calculator. She approached the Employee and asked him to borrow her the textbook and a calculator. The Employee told her to follow him into his office and they would both look for the textbook and a calculator. While looking for the textbook and a calculator inside the Employee’s office, the Employee started touching the learner’s breast and body. She ran out of the office and went back to the class romm. She could not concentrate and lost focus in the class room.
 When she arrived at home she called her mother who was in the Eastern Cape and informed her of the incident. Her mother told her to keep quiet and she would deal with the matter when she comes back the following week. On the 15th of January 2019, her mother came back. She informed her friends of what had happened. Her friends encouraged her to report the matter to the Principal and they accompanied her to the office of the Principal and the incident was reported to the Principal (Mr Jabu Kunene). Her mother, Uncle and Sister also reported the incident to the Principal. She indicated that she was distraught and traumatised.
 The Employee’s colleagues accused the learner of over-reacting and the fact that she would make the Employee lose his job. No one believed her at the School and no support was given to her by the Employee’s colleagues.
 Under cross-examination the witness confirmed that she reported the matter to the Social Workers as well as Police. She said the Employee was lying that she did not leave his class-room on the 12th of January 2019 between 8:15 am and 12:30 pm. She said she did not leave Eqinisweni Secondary School because she failed Grade 11 the previous year. She left Eqinisweni Secondary School because of sexual harassment perpetrated by the Applicant Employee.
 Ms Thumeka Ndubane testified under oath that she is learner A’s sister. On the 15th of January 2019 it was brought to her attention that her sister was sexually harassed by her teacher at Eqinisweni Secondary School. She was told that her sister was touched inappropriately by the Employee. As a family, they decided to report the incident to the Principal. They further approached the Social Workers and the Police. The Principal informed them that he had escalated the matter to the District Office of the Department of Education for further action.
 Under cross-examination the witness confirmed that it was the Social Workers who advised them to open a case of sexual assault at the Police Station.
 Mr Jabu Kunene testified under oath that he is the Principal at Eqinisweni Secondary School. On the 15th of January 2019, he was approached by a group of six students including leaner A and a case of sexual harassment was reported to him. Learner A was crying. One of the students narrated the story. As a Principal, he called the Applicant and informed him that there was a complaint of sexual harassment lodged against him by learner A. It was alleged that he touched the learner’s breast and forced the learned to sit on top of him against her will. He told the Employee that his responsibility was to escalate the matter to the District Office as he viewed the allegations in a very serious light. The Employee denied the allegations levelled against him. Parents of the learner also reported the incident to him. Police also visited the School looking for the Applicant. The learner said she was not feeling safe at the school and the District Office arranged that she be transferred to another school.
 Under cross-examination the Principal confirmed that he knows the learner and he had never received any complaints against the learner.
The Employee was the only witness in support of his case. The Employee’s evidence was briefly as follows
 Mr Josia Mashume Mogoba testified under oath that he is employed by the Employer since July 2013 as an Educator at Eqinisweni Secondary School. He was employed to teach Mathematics and Science. On the 12th of January 2019, he attended Mathematics extra classes with a group of students.
 Learner A was one of the learners who attended the extra classes. He arrived at Eqinisweni Secondary School around 8:15 am to teach mathematics extra classes. He took a short break around 10:30 am and he released his class around 12:30 pm. He said he knew nothing about the sexual harassment allegations levelled against him by the learner. He heard about the rumours of sexual harassment against him from his colleagues. Initially he thought this was a joke. He said he was shocked to hear about these allegations. Learner A asked for a calculator while she was in the class room. He never followed Learner A to his office or staff room. Learner A received the calculator while she was in the class room. Siyamthanda planned the incident and the allegation of sexual harassment. He confirmed that he is scheduled to appear before a court of law regarding the sexual assault case opened against him by learner A.
 Under cross-examination the Employee said he never followed learner A to the staff room. He denied having sexually harassed her. He said he was black-mailed. He prayed that he should not be found guilty of the charges and all that he wants is to go back to class and continue teaching his learners. The Employee confirmed that he responded within twenty-four hours to the Employer’s directive that asked him to respond within twenty-four hours as to why his services should not be suspended.
ANALYSIS OF EVIDENCE AND ARGUMENT
 Although I have considered all the evidence I will only refer in this award to those aspects relevant to determine the dispute, as I am required in terms of s 138(7) of the LRA to provide an award with brief reasons.
 Section 188A (1) of the Labour Relations Act ,66 of 1995 (as amended) states that: “An employer may, with the consent of the employee, request a council, an accredited agency or the Commission to conduct an arbitration into allegations about the conduct or capacity of that employee”.
 Section 188A (9) of the Labour Relations Act, 66 of 1995 (as amended) stipulates that: An arbitrator conducting an arbitration in terms of this section must, in the light of the evidence presented and by reference to the criteria of fairness in the Act, direct what action, if any, should be taken against the employee.
 Section 18 of the Employment of Educator’s Act, no 76 of 1998 provides that failing to comply with or contravening any statute, regulation or legal obligation relating to education and to employment relationship (which include a contravention of the SACE Code of Conduct).
 Section 18 (1) (g) of EEA stipulates that misusing his position at a school to prejudice the interest of any person while on duty, conduct himself in an improper, disgraceful or unacceptable manner.
 I have also given regard to 2005 Code of Good Practice (Sexual Harassment).
 Section 28 (2) of the Constitution of the Republic of South Africa provides that “interests of the child are of paramount importance in every matter concerning the child. Sexual Assault is defined in our law as the unlawful and intentional act which results in another person’s bodily integrity being impaired, or which inspires in another person a belief that such impairment of her bodily integrity is immediately to take place. ELRC Guidelines on Sexual Misconduct arbitrations stipulates that: Sexual Assault does not necessarily involve contact with the genitalia. Sexual assault is any form of assault committed in circumstances of a sexual nature so that sexual integrity of the victim is often violated or threatened”.
 I am persuaded that learner A was hugged and her breast touched against her will. The reason I say so is because I have no reason not to believe learner A. There is no reason or evidence before me that showed me that she had laid the complaint of sexual harassment for sinister motives. I believe she had nothing against the Employee. I believe that learner A was distraught and traumatised. Learner A relived the whole incident during cross examination. She was made to demonstrate the incident, fortunately, the intermediary was present to offer counselling services and the matter had to be adjourned persistently as the minor found it difficult to cope under the circumstances. I believe the learner reported the unacceptable behaviour of the Employee because she regarded the conduct as unwelcomed and the advances were unwanted hence she resisted and ran away. I am convinced that the learner regarded the Employee as a parent, a role model and the person who had authority over her while she was in the class room. The fact that she reported the matter to her friends, family, police and social workers was sufficient to show that she was hurt, mistreated and sexually harassed. I am convinced that learner A left Eqinisweni Secondary School because of sexual harassment perpetrated against her.
 I do not believe that the Employee was shocked when he heard the allegations of sexual harassment levelled against him. The reason I say so is because when he heard the rumour he did not approach the learner and the Principal to get to the bottom of the matter as the allegations were quite serious. He waited for the complaint to be laid before responding to the allegations. I reject the Employee’s argument that Siyamthanda planned the incident and the allegation of sexual harassment. The reason I say so is because there is no evidence to support or substantiate the Employee’s allegation. The Employee failed to submit proof that showed that he responded to the Employer’s correspondence which required him to respond within twenty-four hours as to why his services should not be suspended by the respondent. Despite him telling this sitting that he complied with this directive within twenty-four hours, the evidence before me shows that he lied under oath and he failed to respond within twenty fours as he had alleged.
 The Employee’s testimony was based on bare and plain denial. It is probable that the Employee sexually harassed learner A. The reason I say so is because the Employee confirmed that he and the learner attended extra classes on Saturday and the Applicant conceded that learner A approached him and asked for a calculator. Moreover, the Employee’s evidence was not corroborated by a witness in a form of a learner who was present in the school and at the time the calculator was given to learner A. The Employee’s argument that he gave the learner a calculator while he was in a class room was not corroborated by any of the learners who were present during the extra lessons. I find the Employee not to be a credible witness.
 The Employer’s witnesses were consistent, relevant and reliable throughout the proceedings. And their evidence corroborated one another. I find the Employer’s witnesses to be credible witnesses.
 Educators are entrusted with the Care of Children and Adolescents; they are expected to act with the utmost good faith in their conduct towards learners.
 It is my finding that the Employee was guilty as charged of sexual harassment.
 In Motsamai v Everite Building Products (Pty) Ltd  2 BLLR 144 (LAC) the Court held that sexual harassment is the most heinous conduct that plagues the workplace, not only is it demeaning, it undermines the dignity, integrity and self-worth of the harassed employee. Sexual harassment goes to the root of one’s being and must therefore be viewed from the point of a victim, or to put it differently, how did he / she perceive it, and whether or not the perception is reasonable.
 I order the dismissal of Mr Mogoba Josias Mashunye from his position as an Educator within fourteen days from the date of receipt of the arbitration award.
 The Employee is not entitled to any relief.
ELRC PART-TIME PANELLIST: PAUL PHUNDU