Case Number: PSES398-17/18GP
Applicant: MV Seketa
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Constructive Dismissal
Venue: Johannesburg North District Offices
Award Date: 23 September 2019
Arbitrator: Luyanda Dumisa
Case Number: PSES398-17/18GP
Commissioner: Luyanda Dumisa
Date of Award: 23 September 2019
In the ARBITRATION between
Gauteng Department of Education
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration proceedings were initially set down for hearing on 18 March 2019, on 15 and 16 July 2019 and proceeded again on 02 and 03 September 2019 at Johannesburg North District Offices.
2. The Applicant Meyahabo Vincent Seketa was represented by Advocate A Kalloori and she was subsequently replaced by Advocate Rouben Maphutha and both the legal representatives were instructed by Makokga Sebei attorneys Inc.
3. The Gauteng Department of Education was represented by Emily Magadla its Dispute Manager.
4. The Arbitration proceedings were conducted in English and no interpretation services were required. The bundle of documents were submitted by both parties. The Applicants bundle of documents is marked A. The Respondent's bundle is marked B1 and B2.
5. The arbitration was held under the auspices of the ELRC in terms of its Constitution and the proceedings were both digitally and manually recorded.
6. The Parties agreed to submit their closing arguments seven days after the conclusion of the arbitration proceedings. The seventh day was on 10 September 2019 and upon receipt they were duly considered.
ISSUE TO BE DECIDED
7. I am required to determine whether or not the Applicant contravened section 17(1)(c) of the Employment of Educators Act, 76 of 1998 as amended and whether or not the Applicant's dismissal was procedurally fair,If not, I must make a determination on the appropriate remedy.
8. The Applicant sought reinstatement.
BACKGROUND TO THE DISPUTE
9. The Respondent is the Gauteng Department of Education and it has a mandate to provide basic education to all learners in Gauteng.
10. The Applicant was employed as a Post Level 1 Teacher from 01 January 2015 and he was dismissed for misconduct after an appeal on 16 May 2017.
11. The Applicant sought reinstatement.
SURVEY OF EVIDENCE AND ARGUMENT
12. The Respondent contended that the Applicant between the period 2015 and 2016 he committed an act of misconduct in that he was having a sexual relationship with Nokwanda Dlamini and or Rebecca Makauta in grade 12 D from the same school whilst he knew and or ought to have known it was wrong to do so. The Applicant's conduct breached section 17(1)(c) of the Employment of Educators Act.
13. The Respondent relied on the evidence of Peter Swart (Swart), John Marakalla (Morakalla), Nkateko Mhlungu (Mhlungu) and Valerie Mnisi (Mnisi) to substantiate its case.
14. Swart testified under oath that he is the Institutional Development Officer and that Cosmo City Secondary School is under his scope as a line manager to the school's principal.
15. He stated that the Principal of the school gave him a letter of complaint that was from a learner called Nokwanda Dlamini. He confirmed the letter of complaint with the learner and she told him that she wrote the letter out of her own free will.
16. The learner, Nokwanda Dlamini told him that she fought with Rebecca Makauta over the Applicant and that she was having a sexual relationship with the Applicant. Their sexual activities took place at the Applicant's residence. The Applicant was also seeing Rebecca, Patience and Katrine.
17. The other learners denied that they were having a sexual relationship with the Applicant.
18. He was not aware of any school politics which would have made the Applicant to be implicated in sexual misconduct with a learner. The learner appeared truthful and he had no reason to doubt what she had told him about the sexual relationship she had with the Applicant.
19. Marakalla testified under oath and stated that he is the Deputy Chief Educational Specialist and he was the chairperson at the Applicant's disciplinary hearing.
20. That Nokwanda Dlamini gave testimony that she had a sexual relationship with the Applicant which began in 2015 and that the Applicant was not only having this relationship with her but with other learners as well.
21. When Nokwanda Dlamini was confronted with the letter dated 17 October 2016 in the disciplinary hearing she said the Applicant begged her to transcribe it from the original letter that he had authored.
22. This letter of retraction was presented in the hearing by the Applicant.
23. He was not aware of the affidavit that Nokwanda Dlamini made on 27 May 2017 and the one dated 02 June 2017 because they were not part of the disciplinary hearing and at the time they were authored the disciplinary hearing had been concluded on 09 March 2017 and appeal outcome issued on 16 May 2017.
24. That Nokwanda Dlamini in her evidence in the disciplinary hearing she stated that the Applicant had a sexual relationship with her and that she chose to tell Mahome because he was a trustworthy person and he respected the law.
25. That she testified that the Applicant bought her a necklace to silence her.
26. Mhlungu testified under oath that she is a Teacher and Head of Department at Cosmo City Secondary since 2012 and that she taught Nokwanda Dlamini Life Science in 2015 and 2016.
27. On 20 September 2016 Mahume called her into his office and she found Nokwanda Dlamini in the office. Mahume asked Nokwanda Dlamini to tell what she had told him, Nokwanda Dlamini told her that the she had a fight with Rebecca Makaota over the Applicant because they were both having a romantic relationship with him and that she had a sexual relationship with the Applicant.
28. Then Nokwanda Dlamini wrote what she had told her and Mahume in the letter of complaint dated 20 September 2016.
29. She did not verify the claims made by Nokwanda Dlamini because she had no reason to not belief what she told her.
30. She stated that she did not make a follow up the on matter as it was in the Deputy Principal's office.
31. Mnisi testified that she is in the employ of the Respondent as the Labour Relations Officer and that she is a teacher by profession.
32. She was the investigator and the initiator at the disciplinary hearing of the Applicant.
33. In her investigations she met with all those that were involved in the case. She said Mahume told her that Nokwanda Dlamini approached him about the allegations that she was having a sexual relationship with the Applicant and he called Mhlungu as a witness of what Nokwanda Dlamini told him.
34. When she confronted Rebecca Makauta about the allegations of a relationship between her and the Applicant she denied having a relationship with the Applicant.
35. Nokwanda Dlamini told her the following that, she was having a sexual relationship with the Applicant and it started in Grade 11 and that in Grade 12 she wanted to concentrate on her studies and that the Applicant is consuming her time. in the hearing Nokwanda Dlamini said she went to Mahume to lay a complaint about the Applicant as she was comfortable with him.
36. The fight she had with Rebecca Makauta arose because of jealousy from stories that Rebecca Makauta shared with her regarding the good time she had with the Applicant.
37. Her mother knew that the Applicant was her boyfriend but she did not know that he is a teacher. That she spent Friday until Sunday at the Applicant's place.
38. In the hearing Nokwanda Dlamini stated that the letter dated 17 October 2016 that the Applicant submitted purporting to be her revocation of her complaint about the sexual relationship she was having with the Applicant and which blamed Mahume as the person that made her to lie about the Applicant she confirmed that it is in her hand writing but that she copied them from the letter that the Applicant gave her to copy from. The letter was not representing her true state on the matter and the Applicant had been begging her to stop the case.
39. He told her that he will make means to show his seriousness about her and amongst other things he did the following:
40. She went with the Applicant to his home in December 2016 in Limpopo where he introduced her as makoti (bride) as a sign of appreciation that she should not continue with the complaint against him. The Applicant bought her jewellery to make the case go away and that he gave Rebecca Makauta a cellphone as a token of appreciation for not being a witness to the case.
41. The Applicant's precautionary transfer conditions were that he should not communicate with the learners concerned and yet he did when he was meeting with Nokwanda Dlamini to make her write letters and when he went with her to his home. The letter dated 10 February 2017 that the Applicant presented in this arbitration was not tested in the disciplinary hearing as it was not presented. The affidavit that the Applicant presented dated 28 May 2017 was never brought to the attention of the Respondent and it was authored long after the disciplinary and appeal outcome had been issued on 09 March 2017 and 16 May 2017 respectively. They were not received by the Respondent as they have no acknowledgment of their receipt by any official of the Department of Education or it employees.
42. She stated that that she did not influence Nokwanda Dlamini, that she had nothing to benefit and the Applicant was subjected to a disciplinary hearing.
43. The Applicant was aware of the investigation and he was informed of the allegations when he was issued with the Memorandum dated 27 September 2016 which stated the allegations of sexual relationship with Nokwanda Dlamini and he made his written representations on 19 October 2016 as per clause 5 thereof. He was subsequently placed on precautionary transfer.
44. The thrust of the applicant's contention was that he did not commit the misconduct he was dismissed and that his dismissal was motivated by internal politics because of his proximity to the Principal, the evidence that surfaced after the internal processes was not considered and that his dismissal was procedurally unfair. He relied on his own testimony to substantiate his case.
45. He testified under oath that he was a teacher since 2010.
46. He knew the Nokwanda Dlamini as he taught her in Grade 11 and they had a learner and a teacher relationship.
47. He said he did not have any sexual relationship with Nokwanda Dlamini or any leaner and he does not know where these allegations emanating. He received the letters dated 10 February 2017 from Nokwanda Dlamini.
48. He received the affidavit from her and she told him that she was planning to open a case at the police station when she was advised to write an affidavit instead as she was used. Nokwanda Dlamini gave him these letters to rectify what she had done.
49. He denied having taken Nokwanda Dlamini to his home and he reasoned that his culture would not have allowed him to so.
50. He said he does not know why Nokwanda Dlamini made these allegations about him.
51. His precautionary transfer conditions did not allow him to engage with the learner but did not prohibit the learner from communicating with him.
52. The letter dated 17 October 2016 was brought to him by his representative and he got from the Principal as it was given to the latter by Nokwanda Dlamini.
53. He confirmed that he made written submissions in terms of the Memorandum that was sent to him.
54. He confirmed that the documents that he presented their receipt was not acknowledged by the Respondent or by the principal or any of its employees.
ANALYSIS OF EVIDENCE AND ARGUMENT
55. Section 138(7) of the LRA requires me to issue an arbitration award with brief reasons. What follows is a summary of evidence and arguments presented at the arbitration relevant to my findings. Section 188(1)(a) of the LRA and Code of Good Practice: Dismissal, Item 2(4) provides that a dismissal that is not automatically unfair, is unfair if the employer fails to prove, that the reason for dismissal is a fair reason related to the employee’s conduct or capacity or based on employer’s operational requirements.
56. Section 17(1) of the Employment of Educators Act 76 of 1998 provides that an educator must be dismissed if he or she is found guilty of the following:
(a) Theft, bribery, fraud or an act of corruption in regard to examinations or promotional reports;
(b) committing an act of sexual assault on a leaner, student or other employee;
(c) having a sexual relationship with a learner of the school where he or she is employed;
(d) seriously assaulting, with intention to cause grievous bodily harm to, a leaner, student or other employee;
(e) illegal possession of an intoxicating, illegal or stupefying substance; or
(f) causing a leaner or a student to perform any acts contemplated in paragraphs (a) to (e).
57. Section 17 (1) of the Employment of Educators Act makes it mandatory that once an educator is found guilty of the misconducts in paragraphs (a) to (e).
58. The Court in Combined Transport Services (Pty) Ltd v Buhle Zamokwakhe Miya and Others (2016) ZALAC 57 reaffirmed the applicability of the "balance of probabilities" test in employment law disputes, when it held that a proper assessment of evidence requires the attachment of more weight on the evidence that is consistent and/ or more credible. Further that the test herein is "balance probability", dictating that a more probable version should be accepted, as opposed to a "beyond reasonable doubt" test, which is the test applicable to criminal cases.
59. The Code of Good Practice further provides that one of the requirements of a fair dismissal for misconduct is that the dismissal must be an appropriate remedy, in light of the facts of the case.
60. Regarding procedural fairness Item 4(1) of the Code of Good Practice: Dismissal, provides that: normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the inquiry, the employer should communicate the decision taken, preferably furnish the employee with written notification of that decision.
61. The Applicant's challenge to the procedural fairness of his dismissal is that he was not part of the investigation because he was just given the Memorandum dated 27 September 2016 and he made his written representation in response to the allegations.
62. The Respondent's version is that the Memorandum dated 27 September 2016 was how it investigated the Applicant's case in that he was informed of the allegations and he was given an opportunity to make his written representations and he did.
63. The most probable version is that of the Respondent that it has complied with the requirement of investigation in the context of labour law for the following reasons:
64. The Applicant was given a fair opportunity to state his defence to the allegations against him in the form written submissions before a disciplinary action was instituted against him and this sufficed as an investigation considering the fact that the purpose of investigation in the employment context is to determine whether or not there are grounds to discipline or not and this does not have to be a formal enquiry.
65. The Code of Good Practice contemplates a flexible, less onerous approach and the Respondent has fulfilled that obligation by affording the Applicant an opportunity to state his response to the allegations against him and the evidence has shown that he also appeared before a disciplinary hearing where he stated his case.
66. In light of the aforesaid, I therefore find that the Applicant's dismissal was procedurally fair.
67. I now turn to substantive fairness of the dismissal of the Applicant. Item 7 of the Code of Good Practice: Dismissal provides that, any person who is determining whether dismissal for misconduct is unfair should consider the following:
(a) Whether a rule or standard existed?
(b) Was the rule or standard breached?
(c) Was the rule valid or reasonable?
(d) Whether the employee was aware or could reasonably be expected to have been aware of the rule or standard?
(e) Whether the rule or standard was consistently applied by the employer.
(f) Whether dismissal was an appropriate sanction for the contravention of the rule or standard.
68. In respect of substantive fairness of the dismissal of the Applicant, the Applicant denied having had a sexual relationship with Nokwanda Dlamini or any learner. The reason he could think of why these allegations are brought against him is that he was close to the Principal hence Nokwanda Dlamini was put under duress to make these allegations.
69. He has a letter of retraction by Nokwanda Dlamini of the allegations and an affidavit from her stating the same.
70. The Respondent stated that it dismissed the Applicant based on the allegations that were proven during the disciplinary hearing as stated by Nokwanda Dlamini in the presence of the Applicant, she dismissed the letter of retraction as not her true reflection of this matter and she stated that she was not put under duress to make the allegations.
71. I now turn to whether or not the evidence of the Respondent testimony was hearsay evidence or not. Section 3(1) of the Law of Evidence Amendment Act 45 of 1988 (Evidence Amendment Act) provides that hearsay evidence-
(1) Subject to the provision of any other law , hearsay evidence shall not be admitted as evidence in criminal or civil proceedings, unless-
(a) each party against whom the evidence is to be adduced agrees to the admission thereof as evidence at such proceedings;
(b) the person upon whose credibility the probative value of such evidence depends, himself testifies at such proceedings, or
(c) the court, having regard to
(i) the nature of the proceedings
(ii) the nature of evidence
(iii) the purpose for which the evidence is tendered;
(iv) the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends.
(vi) any prejudice to a party which the admission of such evidence might entail, and;
(vii) any other factor which should in the opinion of the court be taken into account, is of the opinion that such evidence should be admitted in the interest of justice.
72. The evidence rendered by the witnesses of the Respondent was that Nokwanda Dlamini testified in the disciplinary hearing that she was having a sexual relationship with the Applicant and the transcript of the hearing were presented to corroborate this.
73. The Respondent further agued that the de novo principle in the context of the arbitration should not be understood to suggest that the arbitrator starts from a blank slate. That an account should be taken of the fact that evidence was led in the Applicant's disciplinary hearing and such evidence cannot be ignored and that the transcripts of what transpired in the disciplinary hearing was presented.
74. The applicant argued against the admission of the evidence because it is hearsay and the arbitration is the de novo hearing in which the Applicant ought to be allowed to cross examine Nokwanda Dlamini. That this goes to the heart of our judicial system and it is irrelevant that she testified in the internal disciplinary hearing.
75. That for her evidenced to be admissible she should have presented it personally in the arbitration proceedings. Nokwanda was not a reliable witness for the Applicant and for the Respondent because she has made allegations about the Applicant having a relationship with Rebecca Makauta which was denied by the latter.
76. Therefore it fell within the ambit of hearsay evidence in that Nokwanda Dlamini the person whose credibility the probative value of such evidence depends on did not testify in this arbitration proceedings.
77. The fact that Nokwanda Dlamini did not testify during the arbitration proceedings automatically made their evidence to be hearsay because their evidence was based on what Nokwanda Dlamini who was directly involved had testified about that she had a sexual relationship with the Applicant.
78. The word hearsay evidence means something heard from another person, rather than directly. Legally speaking, hearsay evidence is nothing other than the evidence offered by a witness, about which he/ she does not have any direct knowledge, but is based on what others said to him / her. Hearsay evidence applies to oral testimony or written written documents.
79. In light of the above factors, I find that the evidence tendered by the Respondent's witnesses, in as far, as what Nokwanda Dlamini had told them to be hearsay evidence. However the Respondent had also argued for the admission of the Hearsay evidence in the event I conclude that the evidence was hearsay.
80. The Legislature had enacted the provisions of section 3(1) of the Evidence Amendment Act to create a better and acceptable dispensation in our law relating to the reception of hearsay evidence. The wording of section 3 makes it clear that the point of departure is that hearsay evidence is inadmissible in criminal and civil (arbitration) proceedings.
81. However, because the Legislature was conscious of various difficulties associated with the reception of the hearsay evidence in criminal and civil proceedings, it brought a better dispensation and created a mechanism to determine the circumstances when it would be acceptable to admit hearsay evidence.
82. The Legislature also decided that the test whether or not hearsay evidence should be admitted would be whether or not in a particular case before the court or arbitration that it would be in the interest of justice that such evidence is admitted.
83. The factors that an arbitrator is required to take into account are those set out in section 3(1)(c)(i to vii) of the Evidence Amendment Act which includes any factor which in the opinion of the arbitrator should be taken into account.
84. Therefore having taken into account of the seven factors mentioned in section 3(1) of the Evidence Amendment Act , the admission of hearsay evidence in this case is justified for the following reasons:
85. The nature of the evidence was a prima facie proof that the Applicant committed the misconduct he was dismissed for.
86. Since this is a labour dispute which falls within the category of civil proceedings, the courts are not reluctant to admit hearsay evidence in civil proceedings when that is justified by evidence. I am not reluctant to admit the Respondent's evidence owing to the fact that Nokwanda Dlamini is no longer a learner and that the matter is heard post her schooling years.I have also taken into account the standard of proof that is applicable in civil proceedings.
87. The Respondent had provided a good reason why the evidence was not given by Nokwanda Dlamini at the arbitration hearing and the transcripts of what transpired in the hearing were presented.
88. The Applicant made no attempt to subpoena Nokwanda Dlamini as he is the last person to interact with her.
89. The Applicant did not dispute the authenticity of the disciplinary hearing transcripts in terms of the evidence that was led by Nokwanda Dlamini which is in line with the case presented by the Respondent in this arbitration hearing. It trite law that transcribed records of disciplinary proceedings constituted a different order of hearsay evidence in comparison to a witness statement handed to the arbitrator.
90. It is also clear that this matter deals with the subject matter that is manifestly of significant public interest.The safety of leaners from school that are free from sexual relationships with their educators.
91. The Applicant would not suffer prejudice with the admission of the hearsay evidence because of the the transcript of the disciplinary hearing that were presented which led to his dismissal by the Respondent based on what Nokwanda Dlamini had testified about.
92. Any prejudice to the Applicant is outweighed by the public interest in proper justification of the decision and fair labour practice.
93. The Court in Harmony Gold mining Company and Others (2016) ZALCJHB 392 held that in determining whether to allow certain evidence, whether its admissibility is questionable or otherwise, at the center of the enquiry, it should be the probable value of such evidence to the outcome of the case. The materiality and probable impact of such evidence on the outcome should therefore be given more weight.
94. I am satisfied that the evidence is admissible in terms of section 3 (1) of the Evidence Amendment Act. Therefore I find that the admissibility of the hearsay evidence is in this case is in the interest of justice .
95. The most probable version is that of the Respondent that the Applicant was in a sexual relationship with Nokwanda Dlamini in breach of section17(1)(c) of the Employment of the Educators Act 76 of 1998 for the following reasons:
96. The Respondent led an undisputed evidence of transcription record from the disciplinary hearing wherein Nokwanda Dlamini in the presence of the Applicant and the Respondent stated that she was having a sexual relationship with the Applicant and in which again she refuted the letter that the Applicant presented purporting to be her retraction of the allegations.
97. The Applicant presented letters and an affidavit from Nokwanda Dlamini which were presented to him in the absence of the Respondent and which were not received by the Respondent. If indeed the Applicant was falsely accused he ought to have acted legally against Nokwanda Dlamini and not the Respondent because it is not the Respondent who solicited or fabricated the allegations instead it acted upon them as it was required by law.
98. This corroborates the Respondent's version that the Applicant through gifts and taking Nokwanda Dlamini to his home he tried her to retreat from the case which she followed to the end.
99. The Applicant was found guilty based on the evidence that was presented and tested in the hearing and at most anything that appears after the hearing and its appeal the Applicant had a remedy first against Nokwanda Dlamini and once he has legally established that Nokwanda Dlamini lied in the hearing he could have then sought to challenge the Respondent.
100. The Applicant's reliance on the letters and the affidavit that came from Nokwanda Dlamini without having legally secured a ruling from court confirming that Nokwanda Dlamini lied about him to the extent that he lost his employment as a result of such lies.
101. The Respondent led the evidence of credible and reliable witness whose evidence was consistent on the details of how the allegations came about and what transpired in the hearing. The Applicant only made bare denials to the allegations from Nokwanda Dlamini that they were in a sexual relationship which was consensual notwithstanding the fact that it was prohibited between her and the Applicant.
102. The court in De Beer v Trudon (Pty) Ltd (1994) 15 ILJ 1057 (LAC) held with approval that an evidential foundation had to be laid and that a party could not merely rely on arguments only, as arguments without evidential basis would be more on speculation. This suggests that once the employer has proved its allegations with evidence to a degree that its version requires an answer or rebuttal lest it be believed, the evidentiary burden shifts onto the accused employee to prove otherwise. The Applicant failed to rebut the allegations against him by the Respondent and instead he resorted to inadmissible hearsay evidence of affidavit by Nokwanda Dlamini which were not received by the Respondent and that is not consistent with the proven facts.
103. Even though the arbitration is a de novo hearing the fact that evidence was led in the disciplinary hearing cannot be ignored.
104. Section 28(2) of the Constitution 108 of 1996 provides that a child interests are of paramount importance in every matter concerning the child. This proviso could be extended to all children in the Republic of South African that their interests are of paramount importance to learn in a sexual relationship free schools between leaner and a teacher. The Applicant's misconduct does not make him a fit and proper teacher whose is suitable for our primary and secondary schools.
105. In light of the above reasons, the gravity of the offence, the position of trust the Applicant was employed in irrespective of the years of service,I find that the Respondent proved on a balance of probabilities that the Applicant contravened section 17(1)(c) of the Employment of Educators Act 76 of 1998.
106. The Applicant's (Vincent Meyahabo Seketa) dismissal by the Respondent (Department of Education -Gauteng) was both procedurally and substantively fair.
107. The Applicant's claim of unfair dismissal is hereby dismissed.
Commissioner: Luyanda Nkwenkwe Dumisa
Sector/ Industry:Education and Training