Case Number: PSES934-18/19GP
Applicant: FAWCUS J V
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Misconduct
Venue: ELRC offices in Centurion
Award Date: 20 August 2019
Arbitrator: Sibongiseni Sithole
Case Number: PSES934-18/19GP
Panellist: Sibongiseni Sithole
Date of Award: 13 August 2019
In the ARBITRATION between
FAWCUS J V
DEPARTMENT OF EDUCATION – GAUTENG
DETAILS OF HEARING REPRESENTATION
1. This is the arbitration award in the Inquiry by Arbitrator between FAWCUS J V, the employee and Department of Education – Gauteng, the employer.
2. The Inquiry was held under the auspices of the Education Labour Relations Council (‘the ELRC”’) in terms of section 188A of the Labour Relations Act, 1995 as amended (‘the LRA”) read with the Collective Agreement 3 of 2018 Inquiry by Arbitrators. The award is issued in terms of section 138 (7) of the LRA.
3. Mr. T. Madimabe, a PSA official represented the employee. Mr. D. Manas a GDE official represented the employer.
4. The Inquiry was held on 30 July 2019 at the ELRC offices in Centurion. The parties submitted written closing argument on/before 13 August 2019. In writing this award, I confirm having considered same.
5. The arbitration proceedings were conducted in English and were also digitally recorded.
ISSUES TO BE DECIDED
6. I was called upon to decide whether the employee is guilty or not guilty of the following charge and if found guilty to imposed an appropriate sanction:-
“It is alleged that during the period of September 2918, while on duty at Noordesig Primary School you committed an act of misconduct in that you put your arms and /or hands around the waist of a Grade 6 Learner LR, and remarked that she is beautiful and that she should visit your class every afternoon.
In view of your actions, you are thus charged with misconduct in terms of Section 18(1) of the Employment of Educators, Act 76 of 1998, as amended.”
BACKGROUND TO THE ISSUE
7. The employee is employed as a PL1 educator since 1992. The employee is currently placed on a precautionary transfer pending the finalisation of the disciplinary proceedings.
SURVEY OF EVIDENCE AND ARGUMENT
8. What follows is a summary of evidence presented during the Inquiry on those aspects I perceived to be pertinent to the matter. I have considered all the evidence and argument, I shall only refer to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute.
9. I have also concealed the full identity of the learners and identified them with their initials taking into account their ages.
The version of the employer.
10. The first witness of the employer, “LK”, the complainant who is a learner at the school, she testified that she is currently 12 years old and when the incident took place she was 11 years of age.
11. She stated that whilst she was bending and picking up papers at the grade 7 row, the employee approached her. She stood up, and he grabbed her by the lower waist, kept her tight and told her she was beautiful and should visit his classroom every afternoon. She did not respond. Her friend told her not to trust the employee. The employee left and came back again and told her that he should visit him during afternoons.
12. She did not report the incident to her teacher, but reported same to her mother. She felt uncomfortable when the employee grabbed her. Her mother reported the incident to the school.
13. The witness denied that the employee gave her a normal hug and reiterated that the employee told her to visit his class after school. She further stated that the employee was not her teacher.
14. The 2nd witness, “AM” a learner testified that she is 12 years old and knew the employee as his register teacher. She was picking papers with LK and LK had told her that she was not wearing tights or shorts under her school dress. LK held down her school dress whilst picking up papers, facing the employee’s classroom door. She saw the employee hugging LK around her waist and she could tell that LK was uncomfortable. She heard the employee when he was telling LK to visit his classroom during afternoons.
15. The 3rd witness , “LB”, a grade 7 learner gave the similar testimony as the previous witnesses and stated that she was the one who told LK not to trust the employee, since her mother warned her that the employee was touching girls at high school. She also denied that the employee gave LK a normal hug.
16. The 4th witness, “MN”, a grade 7 learner, her testimony was materially the same as the previous witnesses.
17. The 5th witness, Ms Sannie Twala an educator testified that she was LK’s class teacher and she had instructed the learners to pick up papers on the day of the alleged incident. She did not witness the incident. She was informed by LK’s mother and grandmother what LK had told them. She referred them to the HOD who sent them to the principal.
The employee’s version
18. The employee testified that he hugged the learner, it was not intentional nor to make the learner feel uncomfortable. His hands weren’t by the waist of LK, but he only gave her a simple hug by the shoulders, which lasted about 8-10 seconds. He could not recall making remarks that she was beautiful. However, he told her if she had any problem and/or problems with school work she was welcomed to visit him or talk to him. He told her that she looked sad, “let me give you a hug,” to show affection as a father figure and a teacher.
19. It was his first time to see LK at school, he did not know if she was knew or not at school. He is not the only educator who hugs learners and the principal does hug learners. He did not know any rule stating that hugging is not allowed.
20. Under cross-examination, he denied that he grabbed the learner by the waist. He stated that the learners have been influenced. If he told her that she was beautiful it was not his intention nor did he have any ulterior motives. He did not say she should visit him daily. He probably said, she was welcomed to visit him when she has a problem.
ANALYSIS OF EVIDENCE AND ARGUMENT
21. There was a factual dispute whether or not the employee committed the alleged misconduct. It was established during the Inquiry that the main issue resolved itself as to whether the employee committed the alleged misconduct – sexual harassment against a learner.
22. The Code of Good Practice on Sexual Harassment (“Code”) was issued in terms of section 203 of the LRA which serves as a compass in determining issues relating to sexual harassment. Sexual harassment is defined as unwanted conduct of a sexual nature. The employee must have been aware or should reasonably have been aware that his conduct was offensive and/or unwelcomed. The employee is not disputing that she hugged the learner, but disputes the period the hug took and that he hugged her around her waist.
23. In considering the evidence I have taken into account the well-known principles set out in Stellenbosch Farmers Winery Group Limited and another v Martell et Cie and others 2003 (1) SA 11 (SCA) at paragraph 5 where Nienaber JA said:
“On the central issue as to what the parties actually decided there are two irreconcilable versions, so too on a number of peripheral areas of dispute which may have a bearing on the probabilities. The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities…in the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus succeeded in discharging it”.
24. The testimony of the employer’s witnesses (learners) was coherent and consistent in all material respects. Their testimony was that the employee approached LR, held her by the waist, told her she was beautiful and should visit his class in the afternoons. There is absolutely no evidence before me to suggest that the witnesses fabricated their testimonies. Nor did the employee proffer any version as to why the witnesses would fabricate a version against him.
25. As opposed to the employee’s testimony that he only gave her a normal hug. I find his explanation unconvincing. He did not appear to me as a credible and a reliable witness. His version was riddled with contradictions, inconsistencies rendering his version highly improbable.
26. He steadfastly denied the allegation but was at pains to explain that he had no ulterior motives and he saw her sad face, felt compassion for her and asked to give her a hug. It is ironic that he would chose a learner he did not know, hugged her, told her she was beautiful and invite her to his class upon their first encounter. I have great difficulty to accept that he did not have ulterior motives. It was LR’s testimony that she felt uncomfortable, reported same to her mother and did not understand why the employee hugged her around her waist.
27. I accept that the learner did not report the incident immediately to her register teacher. She stated she was scared and considering her age, it is not unreasonable that she would be scared.
28. On balance of probabilities, I find that the employer succeeded in proving that the employee is guilty of the alleged misconduct.
29. I will now deal with whether the sanction of dismissal is appropriate, have read the closing arguments with the mitigating and aggravating factors. The employee also argued that I consider a final written warning and counselling if I find him guilty.
30. The employer argued amongst others that the employee as a loco parentis is expected to protect learners and not to take advantage of them as they are minors. Further bearing in mind that this is a dismissable offence in terms of Section 17(1)(b) of the Employment of Educators Act which provides: “Serious misconduct
(1) An educator must be dismissed if he or she is found guilty of –
(b) Committing an act of sexual assault on a learner, student or other employee.”
31. I am of the opinion, in considering the totality of the circumstances that dismissal would be an appropriate sanction.
(i) The employee, Mr. J. V Fawcus is guilty of the charge proffered against him by the employer Department of Education – Gauteng.
(ii) A sanction of dismissal be imposed against the employee, Mr. J. V Fawcus.
(iii) The employee, Mr. J V Fawcus is found unsuitable to work with children in terms of Section 120(4) of the Children’s Act, 38 of 200.
ELRC Panellist: Sibongiseni Sithole