Case Number: ELRC280-20/21 KZN
Applicant: WONDERBOY SIMANGA NGWANE
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Dismissal - Misconduct
Award Date: 1 December 2020
Arbitrator: WONDERBOY SIMANGA NGWANE
DEPARTMENT OF EDUCATION – KWAZULU-NATAL Employer
WONDERBOY SIMANGA NGWANE Employee
Case Number: ELRC280-20/21 KZN
Chairperson: Humphrey Ndaba
Initiator: Jabu Dumisa
Employee’s representative: Absent
Date of award; 01 December 2020
Education Labour Relations Council
261 West Avenue
Tel: 012 663 0452
Fax: 012 643 1601
1. This is the matter between the Department of Education (KZN) and Wonderboy Ngwane (Ngwane) who is employed as an Educator at Northbury Park Secondary School.
2. Ngwane was charged by the department of education for having sexually assaulted a learner.
3. Ngwane was called upon to respond to the charges of sexual assault. Such cases are coordinated by the ELRC, since the referral of such matters by the Department requires that the Educator, who is alleged to have misconducted himself to fill in his details in the form that is made by the employer. Such details were sourced from Ngwane and he had to fill in this information in his own handwriting, and sign at the bottom to ensure that the information given is accurate.
4. This detail enable the employer to send the date of set down notice to the employee in question. In this regard Ngwane did fill in the form: his physical address as well as his email address in the event that the employer cannot find him in his email. His email is email@example.com .
5. On the 19th October 2020 Nwane`s representative was given the notice of set down.
6. On the 3rd November 2020 Ngwane was not present at the hearing. The matter proceeded around 11h00 am after a long wait for Ngwane who was reported to be on the way.
7. The employer called Ngwane and explained to him that he was required to connect into for his case, he told the employer that he had sent his attorney and he dropped the phone. The discussion was not complete.
8. The employee`s representative undertook to connect digitally to participate in the hearing to no avail. As a result, I decided to proceed with the hearing in the absence of applicant.
9. Although complainant is 18 years old the initiator requested that she testify through an intermediary because she was traumatized by the incident. In the absence of any objection and taking into consideration the trauma she went through a discretion was made to allow testimony through an intermediary.
10. She testified through an intermediary and stated the following;
10.1. She was 18 years old and studying at Northbury Secondary School where Ngwane was teaching. Ngwane was teaching her Dramatic Arts. On the 9th of July 2020, she boarded a taxi to her boarding residence in Northdale. She was not at school on Thursday as she had to go home to Hammersdale to fetch something.
10.2. Ngwane was also in the taxi and was seated behind her. He asked her to lend him R20.00 which she did.
10.3. He asked her to accompany him to his house and she refused. Complainant stated further that Ngwane first touched her hair, then her neck, her breast and her private part. She was shocked and instantly cried. Ngwane then took complainant’s hand and placed it on his private part. Complainant stated that she sent an SMS to her friend to alert her about what had happened in the taxi.
10.4. She and Ngwane were the only passengers after people had jumped out of the taxi. The driver and the conductor were seated in the front seat of the taxi. Once she jumped off she sent another SMS to her friend. She was crying and the other friends at the boarding house asked why she was so upset. She shared the incident with her close friends. complainant also stated that she discontinued attending the Dramatic Arts.
L. E. Sha (Employer’s 2nd witness)
11. Sha testified that she received the information about the sexual incident on the 10th July 2020 from complainant and her friend who narrated the story about the sexual incident that Ngwane touched complainant`s Hair, Breast and private parts in the Taxi and put her hand on his private part. She in turn reported the matter to her supervisor Naidoo. She was advised to meet with the learner and interview her of which she did. She was also advised to report that matter to the parent of which she did. She was also advised to report the matter to the Child Protection Unit which she did. She then referred the matter to the department for disciplinary action to be taken against Ngwane.
Analysis of evidence and argument
12. In this matter complainant testified that on the 9th July 2020 she was in the same taxi with Ngwane. She was sitting in front and Ngwane was sitting behind her. Ngwane borrowed R20.00 from her. When other passengers have jumped out of the taxi Ngwane started touching her hair, breast, private part and made her touch his private part. She was upset and dismayed by Ngwane`s conduct.
13. The evidence by complainant and SHA was not controverted.
14. In my assessment, I find the evidence to be credible and reliable. In Minister of Police v M and others (JR 56/14)  ZALCJHB 314 and Campbell Scientific Africa (Pty) Ltd v Simmers and others  1 BLLR 1 LAC. The LAC confirmed that a single act of sexual harassment committed outside the workplace is a dismissible offence.
15. In this matter although the incident happened in a taxi rather than a workplace it falls within the category of offences that will attract discipline from the employer.
16. In the circumstances, it is my finding that the employer has proved the commission of sexual misconduct by Ngwane on a balance of probabilities.
17. Applicant is charged with the sexual assault of complainant on the 9 July 2020 at or near Northbury School.
18. The Employment of Education Act 76 of 1998 stipulate the following serious offence;
“17. Serious misconduct
18.1. An educator must be dismissed if he or she is found guilty of –
a. Committing an act of sexual assault on a learner, student or other employee;”
19. In this matter taking into consideration the trauma complainant went through and the provisions of the EE Act, a dismissal sanction will not be an act of vengeance but it will be an appropriate measure to ensure that learners are protected from potential acts of sexual assaults.
I issue the following sanction
20. Wonderboy Simanga Ngwane is hereby dismissed from his employment as an educator with immediate effect.