Case Number: PSES694-18/19MP
Applicant: MP FRITZ
Respondent: Department of Education Mpumalanga
Issue: Unfair Dismissal - Misconduct
Venue: Carolina Magistrate Court and Volksrust Circuit Offices, Mpumalanga Province
Award Date: 1 October 2019
Arbitrator: V. Madula
Case No. PSES694-18/19MP
In the matter between
MP FRITZ Employee
MPUMALANGA DEPARTMENT OF EDUCATION Employer
ARBITRATION AWARD (ENQUIRY BY ARBITRATOR)
1. Details of hearing and representation
1.1 This enquiry is conducted in terms of Section 188A of the Labour Relations Act, 66 of 1995 (the Act).
1.2 The hearing took place at Carolina Magistrate Court and Volksrust Circuit Offices, Mpumalanga Province, on 10 and 11 April 2019, 09, 10 and 11 July 2019 and finalized on 13 August 2019 at 9:00AM.
1.3 The employee, MP Fritz was represented by Stephen van der Berg from Suid Afrikaanse Onderwyse Unie (SAOU), while the employer, Mpumalanga Department of Education was represented by Mandla Thabethe, its Assistant Director: Behaviour Management.
1.4 The proceedings were digitally voice recorded.
2. Issues to be decided
2.1 This was a disciplinary enquiry by an Arbitrator.
2.2 I must decide whether or not the employee is guilty of misconduct levelled against him.
2.3 I must determine an appropriate sanction, if the employee is found guilty as charged.
3.1 The employee was charged with the following charges of misconduct;
3.1.1 Charge 1: He committed misconduct in terms of Section 17(1) (b) of the Employment of Educators Act, 76 of 1998 in that during the academic year 2016 on more than one occasion he committed an act of sexual assault on a leaner – Complainant 2 (a learner at Pionier Primary School at the time, by penetrating her vagina with his finger.
3.1.2 Charge 2: He committed misconduct in terms of Section 18(1) (q) of the Employment of Educators Act, 76 of 1998 in that during the academic year 2016, while on duty on more than one occasion he conducted himself in an improper, disgraceful or unaccepted manner by kissing Complainant 2 (a learner at Pionier Primary School at the time)
3.1.3 Charge 3: He committed misconduct in terms of Section 18(1) (q) of the Employment of Educators Act, 76 of 1998 in that during the academic year 2018, while on duty on more than one occasion he conducted himself in an improper, disgraceful or unaccepted manner by touching Complainant 1 (a 11 year old learner at Pionier Primary School) on her vagina and buttocks.
3.1.4 Charge 4: He committed misconduct in terms of Section 18(1) (q) of the Employment of Educators Act, 76 of 1998 in that during the academic year 2018, while on duty on more than one occasion he conducted himself in an improper, disgraceful or unaccepted manner by touching Complainant 3 (a 11 year old learner at Pionier Primary School) on her vagina, breasts and buttocks.
3.1.5 Charge 5: He committed misconduct in terms of Section 18(1) (q) of the Employment of Educators Act, 76 of 1998 in that during the academic year 2018, while on duty on more than one occasion he conducted himself in an improper, disgraceful or unaccepted manner by touching Complainant 4 (a 12 year old learner at Pionier Primary School) on her thighs and buttocks.
3.2 The employee made a plea of not guilty to all the charges leveled against him.
3.3 It was common cause that the employee is employed as Head of Department (HOD) at Belfast Academy
3.4 The employer submitted a bundle of documents which I marked BUNDLES A and B
4. Survey of the employer’s evidence and argument.
Four Complainants testified for the employer.
Complainant 1 testified under oath that;
4.1 The employee put his hand under her clothes. The employee put his hand on her private place. He did it more than once in many days and on the same place that he put all the time. It happened until she changed class. The first person she told was her grandmother, Christa who then told her parents. She hate the employee because of what he did to her.
During cross examination Complainant 1 testified that she was in Arts, Culture and Natural Science class of the employee. The employee would put his hand on her private place when she would be standing next to him asking question on something she did not understand. The class could not see the employee when he was touching her, because there was a computer on top of the employee’s table. The computer was preventing the other learner in class to see when the employee touched her private place. It was very funny and strange. She was shivering. The Complainant used the Intermediary as a proxy when showing how the employee put his hand around her buttocks. The employee’s hand would be underneath the table. The other time when the employee touched her private place was when she was standing next to him at the sport meeting. She was not fabricating stories, the employee did touched her in an unacceptable manner.
Complainant 2 testified under oath that;
4.2 She knew the employee when he was a teacher at their school. One morning during break time the employee gave her a hug and kiss. The employee called her in his class and touched her under her clothes. It was again in the Boarding School Hostel when the boys were in class, the employee went to the steps and kiss her again, he put his tongue in her mouth. The employee also touched her private part with his finger. She spoke to her mother about that and her mother found out from her phone that she was chatting with the employee on Whatsup. The employee tickled her.
During cross examination the Complainant testified that she could not remember the month, quarter and year that the employee called her to his class. She was prepared to speak over and done with it. Her mother and grandmother told her to talk about what she remembered and leave what she could not remember. The employee touched her again during study time. The employee contacted her telephonically first and that was how she got hold of the employee’s phone numbers. Those things happened long time ago, that was why she could not remember everything that happened. It was 2016 when those things happened.
Complainant 3 testified under oath that;
4.3 She knew the employee from the school he was teaching. He taught them Natural Science. Every time she went to the employee’s table, he would touch her legs. The employee was always looking at her legs. He touched her buttocks while she had her skirt on. She felt uncomfortable after the touch and she reported it to the House mother. The employee would pick her up and kiss her on the forehead.
During cross examination Complainant 3 testified that she could not remember the month and term, but it was in 2018. She stood at the employee’s table, asking some tasks when he touched her legs. The employee would put his legs between hers and when someone entered the class, he would quickly turn around as if nothing was happening. She was sitting on the metal part of the table and the employee would come and put his legs between hers. She never discussed that incident with Kaylee and she did not know what happened to Kaylee’s father. She could no longer remember how she got the employee’s phone numbers in her diary.
Complainant 4 testified under oath that;
4.4 She has been a learner at Pionier Primary School. She knew the employee. The employee taught her Natural Science. The employee started to touch her, firstly it was on her leg, but she could not remember the date. She was with her friend, Complainant 3 rehearsing for talent show when the employee hugged them and touch her bums. She felt uncomfortable, because she knew right and wrong things. She reported the matter in the afternoon. One time they were watching movie in the employee’s class. Their legs were on top of the table. The employee made face with stuff in his tongue. There would be a lot of time that the employee would touch her on her legs and bums. One time, it was break time when the employee tried to push her against her back and she pushed him back. Then the employee said to her that she should come to his class, of which she refused.
During cross examination Complainant 4 testified that she requested the psychologist, Rieta Steenkamp to write the statement at the police station, because she (Complainant 4) explained everything that happened to her (Rieta Steenkamp). The police also requested Rieta Steenkamp to write statement for her because she was scared and crying. She read the statement and confirmed what was written on it. She could not remember whether it was inside or outside of class, but what she could remember was that the employee touched her breast as well. She stood up and the employee came closer to her and touched her private parts when they were out for practice.
5. Survey of the employee’s evidence and argument.
There were seven witnesses of the employee, including the employee himself. The employee, Maruis Phillupus Fritz testified under oath that;
5.1 He was transferred to Pionier Primary School in 2012. He was teaching Grades 5, 6 and 7 Natural Science and Technology. In 2016, Complainant 2 messaged him via Whatsup. He told her that he would not speak to her through phone, he would talk to her the following day. Then he blocked her on his phone. A week later he was arrested by the police, because of the allegations made by Complainant 2. The police released him because of lack of evidence. Then in 2017 and 2018, he was the Natural Science and Technology teacher for Complainant 2. One weekend in 2018 a certain Ansune who was in Grade 7 visited his wife. Ansune gave his wife sensitive information about her step-father. His wife reported the matter to the school, which then reported to the police and the step-father was arrested. The mother of Ansune got angry about the arrest of her husband and promised that she knew about the incident of 2016. She would find the kids to make a case against him. On Monday, before school close for second term Complainant 4 got sick after writing examination and the House Mother fetched her out of school. Just before school closes at 13h30, he received a call from Inspector of police, Duduzani telling him to visit the police station. When he arrived at the police station, he was arrested again and charged with sexual assault. He found out from his Lawyer that Complainants 1, 3 and 4 were the ones who reported the matter to the police. Complainants 1, 3 and 4 were friends to Ansune and they visited her before opening a case with the police. The allegations were not true. He would not touch the girls in an improper way while he know the CCTV cameras were watching on him. He supervise learners after school when they were having dinner and during study time. A male teacher would look after Grades 4, 5, 6 and 7 learners, whilst a lady teacher looking for Grades 1, 2 and 3 learners. He did not called Complainant 2 to the boys section, otherwise he would be in big trouble. In terms of their policy, a learner would raise her hand if she has a question and the employee would help. If the learner still has a problem, the employee would go to the desk of that learner and help. Learners still take chances, they would come to his desk and he would tell them to go back to their desks. He would go and help them there. He was in charge of Shortput with his colleque, Mr. Rieneck. Learners participating would sit at the casibo and they would be called one by one to come and make an attempt in the shortput. They would be lots of children surrounding the field. He never assaulted or touched any learner on that day, it was impossible to do so, because they were surrounded by teachers and parents on the side of the field. He never approached the two Complainants, but all the participating learners. All the allegations were not true.
During cross examination Maruis Phillupus Fritz testified that he did not report the Whatsup message from Complainant 2, because he had his own way of dealing with that. He saw it as Complainant 2 was looking for attention. He showed the Whatsup message to his wife. The cameras were always working and they could not go off for two (2) days or a week. He does not think Complainant 1 was in the casibo, because Complainant 1 was not allowed there, since she was not participating on shortput. If Complainant 1 was standing in the casibo, then he did not notice her. He know that sexual nature things are done secretly, but it was impossible to do that in front of cameras and other learners in class watching.
Witness 2 testified under oath that;
5.2 In 2018 she was in Pionier Primary School. The employee is his father. He know Pionier Primary School’s hostel, but he did not stay in the hostel. He only went to the hostel to be with his dad. After 20h30 he would go home. When they play outside the hostel he was not with his dad. He would be playing with the other learners. During the seven (7) years that he stayed in the hostel room of his father, he never saw girls in the boys’ hostel.
Witness 3: Natasa Fritz testified under oath that;
5.3 The employee is her husband. Ansune came to visit her son in her house. Ansune told her story and she together with Ansune went to the school to report the story to the Principal. Someone at the school went to report the story to the police. After that the step-father of Ansune got arrested. The mother of Ansune got angry about the arrest of her husband and she knew that she (Natasa Fritz) helped Ansune to report the story. Ansune’s mother told her that she knew about her husband’s incident with complainant 2 and she would make sure that her husband is arrested as well. The first time she heard of the interaction between her husband and Complainant 2 was an SMS texting her husband and her husband blocked Complainant 2.
During cross examination, Natasa Fritz testified that she did not see the SMS at first, but her husband told her that he told Complainant 2 that he would talk to her in school. Complainant 2 called in her husband’s phone and the phone was with her. Complainant 2’s numbers were saved in her husband’s phone.
Witness 4 testified under oath that;
5.4 She was in Grade 5 in the employee’s class. The employee was teaching her Natural Science, Technology as well as Arts and Culture. You lift your hand and the employee would note you to speak and approach you to make sure he understood the question. She never saw the employee touching other learners in an impropriate manner. It was not possible for the employee to touch the learner in an impropriate manner and she could have seen it.
During cross examination witness 4 testified that her table was one table back from the one of the employee. Some learners would go to the employee’s table. They would stand before the employee’s table and the employee would answer the question and they would go back. Complainant 1 and 4 were in her class and Complainant 2 was not. She never saw Complainant 1 and 4 going to the employee’s table. She participated to the talent search. Complainant 1 and 4 were participating as well. There was never a point where Complainant 1 and 4 stood with the employee.
Witness 5: Andrei Raynier Reynecke
Andrei Raynier Reynecke testified under oath that;
5.5 He was helping the employee with the shortput last year. He was sitting on the table while the employee was standing where the learners were throwing the weight, measuring the distance. There were 12 to 15 children including Complainant 1. He does not think that a person could have done elicit activities because there were lots of children around and lots of parents on the pavilion. The employee did not commit misconduct, because he was measuring the distance and shouting the distance for him to write next to the child’s name.
During cross examination Andrei Raynier Raynecke testified that Complainant 1 left the event because she had other activities to participate on. In athletics they are pressed for time, when they were done with an event, they run to the other activities. He assume that people commit misconduct in a secret place.
Witness 6: Christopher Rodolph Maritz
Christopher Rodolph Maritz testified under oath that;
5.6 He is currently teaching at Pionier Primary School. He has sport activities which he couch. He stays at the hostel permanently from Monday to Friday. On Tuesdays and Thursdays he is doing duty at the hostel. During study time, male teacher would be looking after Grades 4 to 7, while female teacher looking for Grades 1 to 3 in separate rooms. Also during break time, 20h00 to 20h30 boys and girls were in separate flanks. Boys were not allowed on the girls’ side and the same applies to girls. That was a rule. He never saw girls on the boys’ side. If boys see a girl on their side, they would start to scream.
During cross examination Maritz testified that if a girl wanted to talk to her brother, the girl would request a boy learner to call her brother and the discussion would take place in the study hall, but not being monitored. He could not give account of what happened in between, after they separated after super.
Witness 7: Jacques Jansen van Rensberg
Jacques Jansen van Rensberg testified that under oath that;
5.7 He is at Pionier Primary School as the Deputy Principal. He was in charge of the CCTV cameras at the school. They had cameras in each and every class, dinning and study halls, verandas and Administration area. They got few cameras screening the school premises. There were also cameras at the hostel. He has a big screen in his office to monitor the cameras, but he was not there all the time. He has some few classes to teach. If there was something that happened in the school, the teacher would report it and he would check it from the cameras. He knew the employee since he was the employee’s HOD. He has not seen anything suspicious on the CCTV for the past five (5) years. In some classes there would be a blind sport because of the setup of the teacher’s desk in that particular class. The blind sport would be a meter or less. It was not possible for the teacher to hide his desk from the cameras. The class of the employee was small and it was not possible to have a blind sport.
During cross examination van Rensberg testified that he was not a security guard. When the report of the employee came, they went back to that date, but there was no suspicious activities. He could not have seen the recordings of 2016 and any day after seven (7) days.
Analysis of the evidence and arguments
6.1 The evidence of the employer in so far as allegation 1 and 2 is concern was that the employee hugged and kissed complainant 2. Complainant 2 testified that the employee kissed her more than once and touched her private part with his finger. It was the evidence of Complainant 2 that she used to chat with the employee. The employee was the one who started to call her through cell phone and she managed to keep the cell phone numbers of the employee. Complainant 2’s mother found out that the employee and her daughter were chatting on Whatsup.
6.2 The employee’s evidence in relation to allegations 1 and 2 was that he never called any girl to the boys’ section of the Hostel, because he would have got into trouble. He testified that whenever a learner has a question, she would raise her hand up and he would go to her to assist. The employee went further to testify that some learners would still come to his desk for help. It was the evidence of the employee that Complainant 2 sent him SMS message and he responded to it. The witness of the employee, Natasa Fritz corroborate the employee’s evidence that Complainant 2 sent message to the employee. Natasa Fritz also testified that the employee and Complainant 2 used to communicate through cellphones.
6.3 In relation to charges 3, 4 and 5, the employer through its witnesses testified that the employee touched Complainant 3 on her legs and buttocks. The employee would whenever Complainant 3 stood next to his table, touch her legs. The employee would put his legs between the ones of Complainant 3. In terms of Complainant 4’s evidence, the employee touched her legs and buttocks. This happened when she was with Complainant 3 watching movie in the employee’s class. During cross examination Complainant 4 testifies that the employee again touched her breast and private part when she was out for practice.
6.4 The testimony of the employee in relation to charges 3, 4 and 5 was that he could not have committed those misconducts, because there were cameras in his classroom and other learners could have seen him. Regarding the incidents claimed to have happened during sport game and hostel, the employee testified that there were other learners and parents watching the game and as such it was going to be impossible for him to commit those misconducts. The employee also testified that he could not have called those Complainants to the boys section at the hostel, because girls were not allowed to the boys’ section. Witness 4 who testified for the employee indicated that the employee did not touched the Complainants in an unacceptable manner. She could have seen it, if that ever happened. The Deputy Principal testified that he did not see any suspicious activity from the cameras, but those cameras only keep information for seven days. After seven days the new recordings would be done on top of the previous ones.
6.5 My point of departure in analyzing the evidence would be the definition of sexual assault. Item 9 of the ELRC Guidelines: Inquiries by ELRC Arbitrators in terms of Section 188A of the LRA relating to misconduct of a sexual nature in respect of learner define sexual assault as any form of assault committed in circumstances of a sexual nature so that the sexual integrity of the victim is violated or threatened. The guidelines continued to explain the elements of sexual assault which are,
(a) conduct of a sexual nature
(b) which results in the victim’s sexual integrity being impaired
(d) intention to commit the misconduct.
6.6 All the witnesses of the employer, Complainant 1 to 4 testified about how the employee sexually assaulted them in terms of touching their buttocks, breasts, legs and private parts as well as kissing them. Even though the incidents happened in 2016 and 2018, each one of all the Complainants could be able to remember the way the employee sexually assaulted her. Therefore the conduct of the employee on the learners was of a sexual nature and resulted in the learners’ sexual integrity being weakened or damaged. The way the Complainants testified about how the employee would make sure that nobody sees when he touched the learners, bears testimony that there was no consent from the learners and the conduct was unlawful. The fact that the employee was touching those learners at a specific areas, buttocks, breasts, legs and private parts showed that he planned and did these deliberately. It is my belief that all the four learners could not have fabricated stories and lied to the hearing. Their evidence is more probable than the evidence of the employee. Complainant 2 testified that the employee called her telephonically first and then she kept his cell phone numbers. The employee and Complainant 2 use to communicate through Whatsup. This was conceded by the employee when he testified that Complainant 2 sent him SMS and he responded by saying they will talk the following day. To me, this was a confession by the employee that he had relationship with a learner, Complainant 2 and I infer that the relationship was sexual. I have noted the submission of the employee representative in his closing arguments that the evidence of Complainant 2 as far as it relates to her having the employee’s number phone in her diary, but testified in this hearing that the employee called her first and she kept his numbers. To me, the issue of how the learner got the phone numbers of the employee is immaterial. The fact is that the employee who was an Educator of the learner was communicating with her through SMS or WHATSUP and the employee failed to inform the Principal.
6.7 The evidence of the employee is misleading. The employee’s defense was that he could not have committed the misconduct because there were cameras in his class and they (cameras) were working all the time. The other argument of the employee was that the other learners inside and outside the class could have seen the incidents. He also testified that he could not have touched those learners inappropriately at the hostel because girls were not allowed in boys’ section. To the employee, the misconduct charges were leveled against him because of the fight between his wife and the mother of one of the Complainants’ friend, Ansune. However the employee did not call Ansune to corroborate the evidence of Mrs. Fritz. There is one question that I am asking myself and I do not get an answer from the testimony of the employee. The question is, ‘Why does the employee think the four Complainants are fabricating stories of him touching them on their private parts, vagina, breast, legs and buttocks against him? It would be very much difficult to couch all the four learners to fabricate the stories against the employee. My belief is that, it is more probable that the employee could have committed those misconduct.
6.8 It is a given fact that misconduct of a sexual nature cannot be committed openly, for everyone to see. The other learners in class could not have seen the employee committing the misconduct. One of the Complainants of the employer testified that there was a computer on top of the employee’s table which block the other learners from seeing him inappropriately touching them. One of the complainants demonstrated, using the Intermediary as proxy how the employee would put his hand around her buttocks and touched her. During cross examination, the employee conceded to the fact that misconduct of sexual nature happen secretly.
6.9 The evidence of Witness 2 of the employee did not assist the hearing. This witness is the son of the employee. The witness was not always with the employee in the hostel. He also was not in the employee’s class during 2016 and 2018 academic years. His evidence was mainly on the times for lunch, study and sleep in the hostel, of which did not give me a clue whether the employee could have committed the misconduct or not. Therefore, the evidence of Witness 2 is discarded.
6.10 Witness 3, Natasa Fritz testified about the visit by Ansune and the sensitive information about Ansune’s step-father, which led him arrested. Natasa Fritz also led hear-say evidence about the SMS message from Complainant 2 to the employee. She did not see the message, but told about it by her husband, the employee. I agree with the employer that the evidence of this witness was fabricated in order to save the employee’s skin.
6.11 Witness 4 testified that she was in the employee’s class in 2018. She never saw the employee touching a learner inappropriately. The fact that she did not see the employee touching learners inappropriately does not mean that the misconduct did not happen. It is obvious that the employee would make sure he was not seen committing the misconduct. This evidence of Witness 4 was not helpful to the hearing.
6.12 The same applies to Witness 5, Andrew Reyneke who testified that the employee never committed the misconduct, because he (employee) was measuring the distance of the shortput and shouting the distance to him for recording. During cross examination the witness conceded that misconduct activities happen in secret. This to me, means that the witness agree that the employee could have committed the misconduct secretly, knowing that if he could be seen, he would be in trouble.
6.13 The main evidence of Witness 6, Mr. Maritz was about the times the learners use to have lunch break, study time and sleeping time. He also testified about the rule which prohibited girls from visiting boys’ section at the hostel and he never saw girls on boys’ side. The fact that he never saw girls on boys’ side does not mean that girls never went to boys’ side. This to me does not assist me in deciding whether the employee committed misconduct or not.
6.14 In view of the above analysis, it is therefore my finding that the employer has on the balance of probabilities proved that the employee has committed all the charges leveled against him. The employee is found guilty as charged. The employee was charged with five (5) charges, of which one (1) was in terms of Section 17 (1) (b) and four (4) in terms of Section 18 (1) (q) of the Employment of Educators Act, 76 of 1998. However, in terms of Charge 1 there was no evidence led by the employer regarding the penetration of the employee’s finger to the vagina of Complainant 2, but there was evidence regarding the touching of Complainant 2’s vagina, which I regard as sexual assault. It should again be noted that charges 2, 3, 4 and 5 were in terms of section 18 (1) (q) of the Employment of Educators Act, 76 of 1998, but those charges were in relation to the inappropriate touching of learners, of which to me, are sexual assault. The employee should have been charged in terms of Section 17 (1) (b) of the Employment of Educators Act, 76 of 1998.
Mitigating and Aggravating factors
7.1 It is therefore no need to consider mitigating and aggravating factors of the parties, because one of the charges (charge 1) the employee was found guilty of was in terms of Section 17 (1) (b) of the Employment of Educators Act, 76 of 1998. Item 96 of the ELRC Guidelines: Inquiries by ELRC Arbitrators in terms of Section 188A of the LRA relating to misconduct of a sexual nature in respect of learners provides that where an Educator is found guilty of misconduct in terms of section 17, the Sanction of Dismissal is mandatory.
8.1 I find that the employee, Maruis Phillupus Fritz is guilty of all the charges leveled against him.
8.2 A sanction of dismissal be imposed against the employee, Maruis Phillupus Fritz.
8.3 The employee, Maruis Phillupus Fritz is found to be unsuitable to work with children in terms of Section 120(4) of the Children’s Act, 38 of 2005.
8.4 The General Secretary of the ELRC must, in terms of section 122 (1) of the Children’s Act, 38 of 2005, notify the Director General: Department of Social Development in writing of the findings this forum made in terms of Section 120(4) of the Children’s Act, 38 of 2005 that Mr. Maruis Phillupus Fritz is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register.