Case Number: PSES 346-19/20GP
Applicant: Mr. K.C Ratshilumela
Respondent: Department of Education -Gauteng
Issue: Unfair Dismissal - Misconduct
Venue: ELRC Head Office in Centurion.
Award Date: 9 December 2019
Arbitrator: M.A. HAWYES
Case Number: PSES 346-19/20GP
Commissioner: M.A. HAWYES
Date of Award: 09TH December 2019
In the ENQUIRY BY ARBITRATOR between
Department of Basic Education :Gauteng
Mr. K.C Ratshilumela (Employee)
Initiator representative: Mr. J. Molobo
Telephone: 011- 247 5700
Employee representative: Mr. K. Mahuma
Telephone: 072 849 7363
DETAILS OF HEARING AND REPRESENTATION
1. The case was scheduled for hearing on the 28th August 2019, the 5th September 2019, the 11th October 2019 and the 25th and 26th November 2019 at the ELRC Head Office in Centurion.
2. The parties requested and were granted the opportunity to submit written closing arguments by the 5th December 2019. Written arguments were timeously received. For the sake of expeditious finalization of the dispute the parties agreed to make their submissions on the merits and in mitigation/aggravation of sanction at the same time. My award now follows.
3. Mr. J. Molobo, an initiator from the Department of Basic Education: Gauteng represented the Department.
4. Mr. K. Mahuma, an official from SADTU, represented the employee.
5. The Respondent charged the employee with two allegations: Firstly, it was alleged that on or about the 20th September 2018, the employee contravened section 17 (1)(b) of the Employment of Educators Act no 76 of 1998 (EE) by committing an act of sexual assault on D.P.M, a learner at Aha-Thuto Secondary School.
6. Secondly, it was alleged that on or about the 20th September 2018, The employee contravened section 18 (1)® of the EEA by threatening to kill D.P.M and her family.
BACKGROUND TO THE ISSUE IN DISPUTE
7. It is common cause that the employee is currently employed by the Department of Basic Education and stationed at Aha-Thuto Secondary School although I am lead to believe that he is on paid suspension at present.
8. The two charges were put to the employee and he pleaded not guilty thus requiring the initiator to prove the charges against the employee on a balance of probabilities.
9. Both parties made use of bundles of documents. The employer bundle was marked Bundle ‘A’ and the employee’s bundle was marked Bundle ‘B’.
10. The proceedings were also digitally recorded and detailed hand written notes were kept.
SURVEY OF THE EMPLOYER’S EVIDENCE AND ARGUMENT
11. The employer led the evidence of learner witnesses A and B. In addition the Respondent led the evidence of Ms. M. Marumo, a social worker employed by the House Group, an institution that provides facilities for abused, orphaned, neglected and abandoned children/persons between the ages of 12-21 years.
12. The evidence of the two learner witnesses, who were both 16 years old at the time of their testimony, was given with the assistance of an intermediary and interpreter. The learner witnesses testified in a separate venue with a Skype hook up to the main boardroom venue.
13. After questioning I was satisfied that both witnesses were able to distinguish between right and wrong and had an understanding that they were required to speak the truth, the whole truth and nothing but the truth.
14. Learner A testified that she was born on the 6th June 2003.
15. Learner A confirmed that she was a Grade 9 pupil at Aha-Thuto Secondary School in 2018.
16. Learner A testified that the employee was a teacher at the school in 2018. He was not her teacher in 2018 but had taught her geography in 2017.
17. Learner A was referred to a document that purported to be a statement made by her. She confirmed that the statement was hers and had been made on the 7th November 2018.
18. Learner A then proceeded to read through the entire statement with great difficulty displaying a range of emotions as she did so eventually confirming that it was true and correct.
19. She testified that her and her friend went to the classroom of the employee. Her statement refers to the day being the 20th September 2018.
20. The employee had asked both girls to help him with some papers he was marking. Learner B later indicated that she was hungry and Learner A told her to go and buy some lunch and fetch her later. After she left the employee locked the door and sat down. He then told Learner A that he wanted to negotiate with her. He promised to make her feel special but only if she gives him her ‘diamond’.
21. When asked what her diamond meant Learner A paused for a long time and eventually blurted out twice that it was a reference to her pussy.
22. Later with reference to her statement where she had indicated that: ‘his will was done’ Learner A testified that the employee had forced himself onto her.
23. Learner A later testified that a short while after the incident she went to a teacher (Mermosa) and told her a lie that she had been sexually assaulted by two school boys.
24. Learner A testified that the whole truth was in her statement.
25. Learner A admitted to having spoken to the employee on Facebook about her difficult circumstances at home.
26. When cross examined by the employee’s representative about being an orphan Learner A broke down and refused to continue testifying on the day and the case had to be adjourned to another day.
27. Learner B testified that at the request of Learner B she accompanied her to the employee’s classroom. It turned out later that the intention was to ask the employee for money but when they arrived at the classroom Learner B initially spoke about her circumstances at home.
28. As they were chatting the employee (Learner B referred to him throughout as ‘sir’) asked them both if she had cell phones. Learner A answered ‘no’ and Learner B said she had a phone but it was giving her problems.
29. The employee then offered to purchase phones for both of them.
30. They continued to chat for a further 30-40 minutes with Learner A discussing, amongst other things, further circumstances at home.
31. Learner B then testified that she decided to leave since it was getting close to lunch and she was hungry.
32. Learner A took her aside and suggested that Learner B leave whilst she continued to talk business with the employee.
33. Learner B then left and went to fetch two other friends namely Lerato and Nthabiseng. The other two girls wanted to know where Learner A was and she told them.
34. Later after eating they went back to the employee’s classroom to fetch Learner A. They found the door to the classroom locked. Learner B testified that she knocked but there was no response. The other two girls suggested that they she look through the keyhole which she did but could see nothing
35. The other Lerato suggested that they should wait at the classroom to see what happened.
36. After 15-20 minutes they noticed Learner A and the employee coming out of the classroom. Learner A was crying as the employee re-locked the door to his office.
37. Learner A came over to them and asked to see Ms. Msasa. They accompanied her there. Learner A (the complainant) later gave them money to buy atchar and ice. She did not return to class.
38. On the following day they heard news of a learner who had been raped. They later discovered it was Learner A.
39. Learner B testified that they never saw Learner A at school again.
40. Marumo testified that she is a social worker at the House Group. The main function of the House Group was detailed at paragraph 10.
41. Marumo testified that it was discovered that Learner A had been sexually abused by her teacher and by family members. She was clearly in need of care and protection in terms of the Children’s Act.
42. At first Learner A had mentioned that she was abused by a fellow learner but later admitted it was her former geography teacher.
43. It came to light that Learner A and the employee used to have conversations on Facebook and the act happened in the classroom where the employee taught. Learner A had reported the incident to one of the teachers who took the matter further.
44. Marumo testified that Learner A began staying at the House Group since September 2018 and had been staying there ever since.
45. She described Learner A as very disturbed child. Learner A had attempted to commit suicide several times whilst at the House Group and had been seen by both a psychiatrist and psychologist.
46. The last attempt at suicide had occurred whilst Learner A was still testifying at the hearing and the case had had to be postponed whilst she recovered. Learner A had ingested Jik.
47. Marumo testified further that Learner A grew up without a father figure and as such she was inclined to see people like the employee and other older male persons as father figures.
48. The sexual abuse had affected her negatively. She had a very low self-esteem and had a tendency to look down on herself and see herself as dirty.
49. Marumo expressed the view that Learner A was not lying. The reason for the initial lie was because she had been threatened by the teacher according to her statement.
SURVEY OF RESPONDENT’S EVIDENCE AND ARGUMENT
50. The employee testified that he had commenced employment with the employer in February 2006 as PL 1 educator at Aha-Thuto Secondary School.
51. The employee testified that the two girls came to his classroom at about 11h00 on the 20th September 2018 and left approximately 15 minutes later.
52. He testified further that Learner A and Learner B were together throughout the duration of the time that they were with him in the classroom and they left together. They were waiting for the kitchen to open.
53. Whilst they were there he had asked them to assist him in checking the script papers to see if they had marks since he had gaps in his mark list.
54. The employee spoke of the socio-economic circumstance of the school and mentioned that it was quite common for children to approach teachers in the passage and ask them for money.
55. The employee testified that Learner A had asked him for money in the presence of Learner B and he had declined since he only had R11 on him for bunny chow for himself.
56. The employee denied that the door to the classroom was ever locked since the lock was broken after the classroom was broken into some time in the past.
57. The employee testified that he was given permission to leave earlier on the 20th September 2019 since he was departing for Venda. Shortly after leaving he received a phone call from a colleague that one Ms. Moyo was looking for him. A short while later Ms. Moyo called him and advised that Learner A had alleged that he (the employee) had raped her.
58. The employee denied promising to buy the two school girls cell phones.
59. The employee admitted that Learner A had friend requested him on Facebook and they had chatted about her family circumstances. Learner A had threatened to kill herself and much of the conversation was about him trying to calm her down.
60. The employee denied raping Learner A and denied threatening to kill her or her family if she disclosed details of what had happened.
ANALYSIS OF EVIDENCE AND ARGUMENT
61. I was impressed with the testimony of the two minor witnesses.
62. I find Marumo’s description of Learner A as being a disturbed child to be accurate. That was my impression of her as well. I observed a child who had been deeply hurt, suffered from anger and a range of other emotions and clearly showed the symptoms of low self –esteem all classic symptoms of abuse. Learner A’s testimony was given stop/start and the case had to be adjourned on one occasion to accommodate the witness as she recovered after a suicide attempt.
63. Although Learner A’s testimony progressed slowly with frequent interruptions the testimony that was eventually placed on record was entirely consistent with her earlier written statement.
64. The testimony of Learner B corroborated that of Learner A in all material aspects where it was possible to do so. I was also impressed with the testimony of Refilwe whose evidence was consistent and had the familiar ring of truth about it.
65. I was not impressed with the testimony of the employee. The employee created the impression that nothing of a sexual nature happened in his class room and that Learner A’s testimony was a complete fabrication. I could find no reason why Learner A would wish to falsely implicate a man for sexual assault who had apparently provided a sympathetic ear to her concerns and troubles via Facebook and in person.
66. I reject his version that he was never alone with Learner A. Both Learner A and Learner B specifically testified that the classroom door was locked. I accept their testimony in this regard.
67. I find it highly probable that when left alone with Learner A on the 20th September 2018 that the employee locked the classroom and took advantage of her vulnerabilities and her obvious trust in sharing confidential information with him. As Marumo had testified Learner A had never had a father figure and was inclined to be close to male authorities.
68. I find that it is probable that the employee committed some form of sexual assault with Learner A, without her consent, in the locked classroom. Since this is, in essence, a disciplinary enquiry and arbitration rolled into one the onus resting upon the employer to prove its allegations is on a balance of probabilities. It is common cause that the employee still faces a criminal charge of rape and the State will have a much heavier burden to prove its case beyond a reasonable doubt.
69. It is also probable that the employee, after realizing the gravity of succumbing to his passions, would have uttered threats to prevent Learner A from disclosing what had just happened. Learner A’s first act of lying about who had sexually assaulted her is consistent with her fearing for her and her family’s life and a probable safe guard that she is telling the truth when implicating the employee. A short while after the lie the truth came out.
70. Learner B testified that when she observed Learner A and the employee come out of the classroom Learner A was visibly upset and crying. Learner A would have had no reason to have been upset if she and the employee had spoken about general matters or if Learner A had merely helped the employee with processing his marks.
71. Marumo is convinced that Learner A did not falsely implicate the employee and quite frankly so am I. I find that the employer has discharged the onus of proving the allegations of misconduct against the employee on a balance of probabilities. I find the employee guilty on both charges.
72. After considering the parties submissions in aggravation and mitigation of sanction I find that only one sanction is appropriate.
73. The employee is hereby dismissed forthwith from the date of this award.
74. The employee is declared unfit to work with children again.