Case Number: PSES740-18/19 WC
Province: Western Cape
Applicant: SAOU obo E. ARONSE
Respondent: WESTERN CAPE EDUCATION DEPARTMENT
Issue: Unfair Dismissal - Misconduct
Award Date: 9 August 2019
Arbitrator: ADVOCATE J P HANEKOM
PANELIST: ADVOCATE J P HANEKOM
CASE NO: PSES740-18/19 WC
AWARD DATE: 9 AUGUST 2019
IN THE MATTER BETWEEN:
SAOU obo E. ARONSE Applicant
DEPARTMENT OF EDUCATION – WESTERN CAPE Respondent
DETAILS OF THE HEARING AND REPRESENTATION:
1. This matter was initially set down for arbitration on 21 May 2019 concerning an alleged unfair dismissal dispute related to misconduct. Mr. S. van den Berg, official of SAOU represented the Applicant. Ms. S. Flandorpf of Labour Relations represented the Respondent.
2. I digitally recorded the evidence heard over more than one day and concluded on 16 July 2019. Both parties thereafter agreed and requested to submit written closing argument by 26 July 2019.
ISSUE TO BE DECIDED:
3. I have to decide whether the Applicant’s dismissal was substantively fair.
4. The Respondent employed the Applicant as an educator since 1 January 2012, who became the Principal of De Kruine Secondary School, with effect from 1 July 2015.
5. During January/February 2018, the Applicant allegedly sexually assaulted (charge 1) a Grade 12 learner (Complainant) by kissing her and placing his tongue in her mouth. Further, he allegedly conducted him in an improper, disgraceful and unacceptable manner (charge 2) in that he made certain utterances towards the Complainant. After a disciplinary hearing and appeal process, the Respondent dismissed the Applicant with effect from 26 November 2018.
6. The Applicant denied misconduct and challenged the substantive fairness of his dismissal. The Respondent opposed the application.
EVIDENCE AND ARGUMENT BY THE RESPONDENT:
7. The Respondent led the evidence of C. Baadjies (Complainant) and E.G. Human. The Respondent further submitted documentary evidence in support of its case.
8. The Complainant testified that she was a Grade 12 learner at De Kruine Secondary School in 2018. She knew the Applicant as the Principal and her subject teacher. The Applicant also stayed in the school hostel and they developed a father- daughter relationship.
9. In respect of charge 1, the Complainant stated that during January 2018, she stayed in the school hostel. The Applicant approached her and asked her as to how she commutes to and from home over weekends. He then offered her a lift home where she stayed with her grandmother on a farm close to Touws River. At the time of the incident, they were on their way home when they stopped at a garage. The Applicant then sent the other passenger (another learner called Bradley Links) to the shop to buy some cold drinks while the Applicant and the Complainant stayed behind in his car. The Applicant then told the Complainant that he did so much for the Complainant and asked her if she could do him a favour. The Applicant then told her that he wanted to kiss her. According to the Complainant, she felt nervous, uncomfortable and did not say anything. Whereafter Bradley Links returned to the vehicle. They then continued to drive and dropped Bradley off along the way. The Applicant thereafter drove further and pulled the vehicle off the road. He then told the Complainant that he was going to kiss her and grabbed the Complainant behind the neck. He kissed her with his tongue in her mouth. The Complainant then pulled away and uttered “ek sê Meneer”. The Applicant was nervous at the time and told her not to tell her grandmother as to what happened when he dropped her at home.
10. According to the Complainant, the Applicant also previously touched her leg when she showed him a scare of an old injury on her upper leg. She saw the Applicant as a father figure as she did not have a relationship with her biological father. She tried to avoid the Applicant after the incident.
11. Approximately two weeks after the incident, the Applicant again communicated with her on Facebook and asked if it could happen again, to which she replied “No”. According to the Complainant, the Applicant gave her money from time to time when she did not have. He also assisted her with her homework. Further, she spoke to him about her personal issues. During their discussions at the time, the Applicant would tell her “jy laat ander outjies in my slaai krap”,“ek kan nie wag tot jy uit die skool is nie, dan is jy myne”, and “jy is my meisie”. The Complainant could not say why the Applicant uttered those words towards her, as she was not in a relationship with the Applicant. It made her feel uncomfortable.
12. On 8 February 2018, the Applicant again communicated with the Complainant on Facebook and asked her to come to the office. She then made up an excuse not to go. The Sunday, on her return to the hostel, Ms. Human told her that she (Complainant) was busy messing with someone bread and butter. The Complainant afterwards heard rumours at school that she and the Applicant had slept together that made her upset. Soon thereafter, the Applicant called the Complainant to his office and confronted her about the fact that she told others about the kissing incident. She then lied to him and told him that that was not the case. The Applicant immediately wanted to see her phone, but she refused to do so. The Complainant then went to the hostel crying and told the cleaner (Alisia) about what happened and showed her (Alisia) the Facebook entries. Alisia then called Ms Human. The Complainant also told her (Human) what had happened and showed her the Facebook entries on her cell phone.
13. According to the Complainant, she could not handle it anymore and tried to commit suicide when she drank some detergent at the hostel. Ms Human discovered her in the toilet and took her to hospital. After that, the Complainant did not return to the school, but moved to another school.
14. Whilst at the other school, towards the end of the year, the Complainant contacted the Applicant via WhatsApp, as she felt sad about what happened and wanted to make up for it. She also requested old examination papers from him.
15. The Complainant further stated that before the arbitration hearing whilst at home, a man called Oompie came to her and said a lot of things to her, amongst others that she should take hands with the Applicant and that she should drop the case because the Applicant is suffering at the moment. The Complainant stated that she thereafter felt not to come and testify, but she changed her mind and decided to come and tell her side of the story.
16. Human testified that she is a Head of Department at De Kruine School and the Superintendent at the school hostel.
17. Human further stated that on or about 13 February 2018, whilst in her classroom, she they called her to the hostel to attend to the Complainant that was emotional. There the Complainant showed her some of the Facebook entries that incriminated the Applicant. The Complainant further told Human about the kissing incident. Human then went back to the school and reported the matter to the Circuit Manager, Mr Carriem.
18. Human further stated that she and the Applicant had a discussion on 14 February 2018 regarding the Complainant. The Applicant told Human that he merely gave the Complainant a hug and kiss to wish her all the best with Grade 12. The Applicant then requested Human to delete the Facebook entries from the Complainant’s phone and those that the Complainant forwarded to Human’s phone. Human told the Applicant that she would think about it. At the time, she decided not to do so as it would not be the correct thing to do, as the Facebook entries discredited the Applicant.
19. Human also stated that on or about Saturday, 17 February 2018, the Complainant tried to commit suicide by eating some detergent in the toilet. Human rescued the Complainant who at the time the Complainant told Human that everything became too much for her (Complainant). Human took the Complainant to hospital.
20. The Respondent argued that the Applicant’s version was one of mere denial. The Applicant through his actions, made him guilty of sexual assault when he kissed the Complainant and put his tongue in her mouth. He also acted inappropriately when he uttered certain words towards the Complainant. Accordingly, the Respondent submitted that dismissal was appropriate under the circumstances.
EVIDENCE AND ARGUMENT BY THE APPLICANT:
21. The Applicant testified and called D. Jaftha, J. Jaftha, and I. Adams as witnesses. The Applicant also submitted documentary evidence in support of his case.
22. The Applicant testified that he was the Principal at De Kruine Secondary School.
23. In respect of the kissing incident, the Applicant denied that he used his tongue when he kissed the Complainant. According to him, he merely gave her a hug and kissed her on her lips to wish her well for the school year. The Applicant denied that he demanded a kiss from the Complainant when Bradley went to the shop. According to the Applicant, he saw that the Applicant was herself again and he impulsively decided to stop next to the road when he gave her a hug and a kiss on the lips to wish her all the best. The Applicant further stated that he knew it was wrong to have kissed the Complainant and later tried to improve their relationship when he communicated with the Complainant on Facebook.
24. In respect of Charge 2, the Applicant admitted that he told the Complainant “Jy is myne” as he used to say the same to the other learners at school. He once introducing the J. Jaftha a learner to his wife and referred to her, as “sy is my meisie”. The Applicant further confirmed the WhatsApp communication between him and the Applicant during September 2018. According to the Applicant, he saw it as an outcry for help and he supported the Complainant in that regard by supplying her with old examination papers and the answer sheets.
25. D. Jaftha testified that she was a learner with the Complainant at De Kruine School in 2018 and that the Applicant taught them the subject Physical Science.
26. According to D. Jaftha, the Applicant did not give the Applicant special treatment and that the Applicant used to call the girls as “my meisie”.
27. J. Jaftha testified that the Applicant was her Physical Science teacher at the school and he once introduced her to his wife as “my meisie”. According to J. Jaftha, it made her feel better at the time when she lost a friend who passed away in 2017.
28. Adams testified that she is the Housekeeping Supervisor at the hostel. She knew the Applicant as a learner who stayed in the hostel with whom she had a good personal relationship. Adams further stated that the Complainant told on a Wednesday her about the fact that she and her boyfriend had an argument and that everything became too much for her. On the Friday, the Complainant told her that her (Complainant’s) boyfriend said that she (Complainant) is a “slut”. That Saturday, Adams heard about the fact that the Complainant tried to commit suicide.
29. The Applicant submitted that he had no sexual intent when he kissed the Complainant, as they had a father-daughter relationship. The Applicant submitted that the Complainant fabricated a version against him. She had have had a guilty feeling about the rumours that the learners spread about the incident. In respect of the words uttered towards the Complainant, the Applicant submitted that his version seemed more probable than that of the Complainant. The Applicant therefore denied guilt on the charge of sexual assault. The Applicant however conceded that his actions amounted to unprofessional conduct and pleaded for a disciplinary action short of dismissal.
ANALYSIS OF THE EVIDENCE AND ARGUMENT:
30. The Respondent dismissed the Applicant, a School Principal on the charges levelled against him as stated in the background above. The Applicant denied misconduct and challenged the fairness of his dismissal. I decided only to focus on those issues I consider relevant for the purpose of my award.
31. The Complainant during her testimony gave a clear account as to her relationship with the Applicant. She stated that she had a father/daughter relationship with the Applicant, which the Applicant confirmed during his testimony. The Applicant assisted her in numerous respects. He for instance gave her advice on personal matters regarding her boyfriend. She confided in him and openly told him that she had a sexual relationship with her boyfriend and once told him that she had a genital rash. The Applicant further assisted her with her studies. He gave her money and commuted her to and from home over weekends free of charge. It was the uncontested evidence of the Complainant that she confided in the Applicant and that they had a father- daughter trust relationship. According to her evidence, the Applicant approached her to enquire as to how she gets home over weekends and he offered her a lift. At first, she did not know whether the Applicant had any ulterior motives and simply accepted their relationship as a father- daughter relationship.
32. In respect of the sexual assault, the Complainant gave a detailed version as to what transpired on the day in question. I find it unlikely that she would fabricate a version in so much detail. The Complainant clearly stated that the Applicant told her that he did a lot for her, expected something in return, and that he wanted to kiss. She did not respond at the time. It made her feel uncomfortable. Her behaviour was not that of someone who willingly participated in a flirtation. Later, after he dropped Bradley Links off, he decided to stop next to the road while alone with the Complainant. He then executed his plan and told the Complainant that he was going to kiss her. She honestly conceded during cross- examination that she allowed the Applicant to kiss her, because she thought it was going to be a normal kiss on the lips to get it finished. However, she did not expect him to kiss her the way he did. She then added that if what the Applicant said were true, his conduct would still not be right. She testified that when he pushed his tongue into her mouth, she pulled away and uttered something. The Complainant then observantly noted that the Applicant thereafter appeared nervous and uncomfortable. He struggled to change the gears of the car when he pulled away. A women’s intuition always speaks the truth. The Complainant tried to avoid the Applicant thereafter for more than a week. The Applicant confirmed this during his evidence. The Applicant’s evidence further supported her evidence when he admitted during cross- examination that he struggled with the gears. Again, to my mind her behaviour then was not that of a person who willing consented and enjoyed the kissing.
33. The Complainant was further honest to concede that, on the day of the kissing incident, the Applicant did not touch her leg. This happened on a prior occasion when she showed him a scar on her upper leg. As a single witness, I have to be cautious to accept her evidence as the truth. Human evidence supported the Complainant’s version in numerous respects as to what the Complainant told her and what had happened afterwards. The Facebook messages submitted as documentary evidence also supported their evidence in that regard. It was clear from the Complainant’s evidence and that of Human that the Applicant wanted them to delete the Facebook messages. I find it unlikely not to be the case if the Applicant did nothing wrong. I also find it unlikely that the Complainant and Human would conspire to fabricate a case against the Applicant in so much detail. They corroborated each other as to the sequence of events of what happened before and after Human knew about the Facebook messages. I therefore have no reason to reject the Respondent’s evidence as false. Human also made a good impression as a witness. For my observation, I find it was unlikely that she had a motive to incriminate the Applicant and that she conspired with the Complainant to fabricate a version. The hostel called her to assist the Complainant, which she did. She gave an honest version of her discussions with the Applicant.
34. The Applicant’s version to the contrary was one of mere denial. He denied that he committed misconduct and claimed that he merely hugged and kissed the Complainant impulsively, to wish her well with her Grade 12 year. When questioned by the arbitrator as to why he decided to stop along the road to kiss the Complainant, the Applicant could not give a plausible explanation. Save to say that he did not know what was on his mind at the time to act impulsively. I find the Applicant’s version as to how and why he kissed the Complainant unlikely. One would have expected him to do the hugging and kissing in front of other people. Why wait until Complainant is alone. The Applicant denied that he pushed his tongue into the Complainant’s mouth and that he had any sexual intention to do so. Further, he denied that he told Human to delete the Facebook messages from her and the Complainant’s phone. I find it unlikely that Human, with her integrity would fabricate something like that. The Applicant could not explain why the Respondent’s witnesses would conspire against him if they had such a good relationship with him. The Applicant during cross-examination confirmed the Facebook messages and could not give a plausible explanation as to why he sent a message to the Complainant stating “okay, sal jy weer?” to which she responded: “nee”. Those messages related directly to the kissing incident and nothing else. In a follow-up Facebook message, the Applicant responded that he was sorry that he upset her, and he would not ask her about it again. That explained why the Complainant and Human testified that the Applicant wanted them to delete the Facebook messages. He knew that the messages would put him in a bad light.
35. The Complainant further gave a good explanation as to the words that the Applicant uttered towards her. I have no reason to reject her evidence in that regard. The Applicant during cross-examination conceded that he might have testified at the disciplinary hearing “jou kêrel krap in my slaai”. The Applicant claimed that he had uttered those words as a joke. Why would he joke about it? I find it unlikely to be the case.
36. It was my inference from the Applicant’s case that he tried to justify his utterances when he called D. Jaftha and J. Jaftha as witnesses to confirm that that was how he normally refers to his female learners as “my meisie”. It was further my inference from Adams’ evidence that she testified to favour the Applicant. She during her testimony tried to tender irrelevant character evidence of the Complainant’s bad character regarding her sex live that the Applicant never rose with the Complainant during her testimony. From what I observed, the Complainant appeared to be a tender, sensitive person of good moral standards. I find it unlikely that the Complainant would share her personal life with Adams as stated by Adams, but would remain silent about her (Complainant’s) relationship with the Applicant, especially after the rumours at school.
37. After consideration of the evidence as a whole, I find the Respondent’s version more likely than that of the Applicant and therefore reject the Applicant’s evidence as false. It is my inference of the evidence as a whole that the Applicant had ulterior motives. He took advantage of the situation as a person in position of authority and conveniently manipulated a vulnerable Complainant to try and satisfy his lustful needs. To my mind, the Applicant premeditated what he wanted to do with the Complainant. In my view, the Applicant had the intention (dolus eventualis) to assault the Complainant sexually when he kissed her. Section 5(1) and 5(2) of the Sexual offences and Related Matters Amendment Act 32 of 2007 (hereinafter referred to as “the Act”) refers to sexual assault. Section 5 of the Act reads “5.1...unlawful and intentionally sexually violates a complainant (“B”), without the consent of B.., is guilty of sexual assault.” and “5.2...unlawfully and intentionally inspires the belief in a complainant (“B”) that B will be sexually violated, is guilty of sexual assault.” The word “sexual act” is defined in section 1 of the Act as “...an act of sexual violation”. Further, the word “sexual violation” in the Act has a brought definition that includes direct or indirect contact between the mouth of one person and the mouth of another person. The Complainant did not give the Applicant express permission to kiss her the way he did. He foresaw the possibility that she might not agree to that and proceeded with his actions. J. Burchell etal, Principals of Criminal law, Juta (2002), states on page 302 “This form of intention exists where the accused does not ‘mean’ to bring about the unlawful circumstance or to cause the unlawful consequence which follows from his or her conduct, but foresees the possibility of the consequence existing or the consequence ensuing and proceeds with his or her conduct. The Applicant grabbed the Complainant by her neck and kissed her with his tongue in her mouth to which she reacted negatively.
38. Under the circumstances, I find the Applicant guilty of sexual assault. I also find the Applicant guilty of charge 2 relating to the utterances. I find it more probable that the Applicant uttered those specific inappropriate words, with a sexual undertone towards the Complainant hoping to solicit the same or similar reaction from her.
39. After consideration of the evidence as a whole, I find that the Applicant committed serious misconduct that in terms of section 17 (1) (b) of the Employment of Educators Act 76 of 1998 as amended requires a mandatory sanction of summary dismissal. I therefore find the Applicant’s dismissal substantively fair.
40. In the premises, I make the following award:
(1) I find the Applicant’s dismissal substantively fair. I therefore dismiss the application.