PSES 861-18/19 KZN
PSES 861-18/19 KZN
Award Date:
28 February 2020
Case Number: PSES 861-18/19 KZN
Province: KwaZulu-Natal
Applicant: Yusuf Khan
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Dismissal - Misconduct
Venue: ELRC venue in Overport, Durban
Award Date: 28 February 2020
Arbitrator: R. Shanker
Case No PSES 861-18/19 KZN
In the matter between
Yusuf Khan Applicant
And
Department of Education KZN Respondent
ARBITRATOR: R. Shanker
DELIVERED: 28 February 2020
AWARD
DETAILS OF HEARING AND REPRESENTATION
1. This matter was referred to the Education Labour Relations Council (ELRC) in terms of section 188A of the Labour Relations Act 66 of 1995 (LRA) as amended and was hear on 12 April 2019, 09 July 2019, 23 July 2019, 30 September 2019 and 11 February 2020 at the ELRC venue in Overport, Durban.
2. The employee, Yusuf Khan (“Khan”) was represented by I Dhanook, an official of NAPTOSA. The employer, Department of Education KZN, was represented by M Mtetwa.
3. The matter relates to allegations of sexual harassment of learners who are minors. Many of witnesses that testified were also minors. In accordance with the protection of the rights of minors, the identity of the learners will not be disclosed. I will refer to the minors as the Learner A, B, C, etc. in this award. They gave “in camera” evidence and by making use of an intermediary and an interpreter.
4. The parties submitted written arguments which I considered in making this award.
ISSUES TO BE DECIDED
5. The issue to be determined is whether the employee committed the misconduct as per the charges contained in Bundle B and, if so, to determine an appropriate disciplinary sanction.
BACKGROUND TO DISPUTE
6. Khan is employed as an educator in terms of the Employment of Educators Act 76 of 1998 (“Act”). He commenced employment in about 2015 and has 3 ½ service at the current school.
7. The employer alleges that the khan committed the following misconduct:
Charge 1: On or around 17 October 2018 and at or near the School, you allegedly committed an act of sexual harassment on Learner A, a grade 5 learner at the school, by fondling her breasts. In doing so, you contravened section 17(1)(b) of the Act.
Charge 2 It is alleged that whilst on duty you conducted yourself in an improper and unacceptable manners in that:
Count 1: During the 3rd school term of 2018, you instructed Learner B, a grade 5 learner at the school, to lie about being in class with Learner A on 17 October 2018, when the alleged sexual harassment incident took place.
Count 2: Around the 3rd school term in 2018, you asked Learner C, a grade 5 learner, at the school if she “had sex before, you want to teach her sex and if she wants to be a slay queen”.
You thereby contravened section 18(1)(q) of the Act.
8. Khan denied that he committed the misconduct mentioned in the charges and his response to the allegations were as follows:
8.1. In Charge 1, his version was that he only touched Learner A’s face and forehead when she complained about being unwell. He was not alone when this incident took place.
8.2. In charge 2, Count 1, his version was that he never asked Learner B to lie. He only asked her to stick to her story and not be influenced/threatened or intimidated by anyone.
8.3. In Charge 2 Count 2, his version was that he reprimanded Learner E because she was getting up to mischief like kissing another learner and having a profile picture of a slay queen on her phone. He did not talk to her about sex.
9. The employer called six witness to testify in support of its version and produced two sets of documents marked Annexures “A” & “B”. Khan testified and called two witnesses. He submitted a bundle of documents marked Annexure “C”.
SURVEY OF EVIDENCE AND ARGUMENT
10. The evidence and arguments hereunder are not verbatim accounts of the proceedings but a summary of the evidence presented at this hearing, including the facts that were agreed upon by the parties. All evidence and arguments were considered prior to drafting this award. For convenience, I will deal with the evidence under each charge.
Charge 1:
11. It is alleged that Khan had sexually harassed Learner A by fondling her breasts on 17 October 2018. At the time of the incident, Learner A was 11 years old and a grade 5 learner in Khan’s class. It is common cause that:
11.1. Khan had a double free period between 08:15 and 09:15. Learners had to go for computer lessons during this time and Khan had the classroom to himself.
11.2. Learners left his classroom at 08:10.
11.3. He kept Learner A behind in his class because she didn’t finish her work.
11.4. Learner A and Khan were alone in his classroom. Although Khan initially maintain that he was not alone in class, he conceded under cross-examination that neither Learner B nor any other learner were present.
11.5. The curtains at the back of the classroom were closed. (The conflicting evidence is with regard to who closed the curtain and whether Khan had later closed the curtains at the front of classroom)
11.6. Khan had a 10 – 15 minutes discussion with Learner A in his classroom regarding, amongst things, her situation at home and illness.
11.7. Learner A was not feeling well on the day. After the discussions, Khan sent Learner A to the office to get some food.
12. Learner A testified to the following at this hearing. She normally sat at the front of the classroom, in the first row. When all the other learners left for computer lessons, Khan asked her to go and sit at the back of the classroom and he started to talk to her about her situation at home and about her illness.
13. Whilst she was seated at the back of the class, Khan came to her and pulled (“picked”) her up from her chair into a standing position. He was on her right hand side. Whilst asking her several more questions, he started to hug her in different ways – from the front and back. He started to play with her hand and he made her touch his chest and his private parts.
14. He asked her where it was sore and she told him that her stomach was sore. He began pressing (“pumping”) her stomach. He then quickly went to close the curtain at the front of the classroom and also locked the door stating that he did not want anyone to see them there. He came back to her and started to unbutton her uniform. He put his hand on her breast and squeezed it.
15. After the incident, she went to office and they gave her some jungle oats. She started vomiting after eating it. They then gave her an apple which she ate. Khan later came to the sick room and told her to return to class room to write a test, which she did.
16. Later, the tuck-shop lady that distributes food came to her classroom and called out her name. She was shocked as she had not ordered any food. Khan looked at her as if he knew what was going on. As it was the first break time, she took one bite and left.
17. On the same day of the incident, she told her friends Learner F and Learner G how Khan had touched her breast. She told her granny the following day about the incident.
18. She disputed Khan’s version that he only touched her forehead and face. She disputed that Learner M had closed the curtains at the back of the classroom and stated that Learner M was not there that day. When the children returned to the class room the curtains were still closed.
19. She agreed that she used to offer Khan sweets which he would take. She denied that Khan had said he will only take the sweets when she started doing her work. She denied that Khan had spoken to her about her results and position in class. She agreed that her position was getting better but then dropped. She stated that her results dropped because she was not doing her work and she was stressing about telling her parents about what Khan had did.
20. She agreed that Khan had spoken to her about her homework not being done but she disagreed that he had spoken to her about her position in class and she denied Khan’s version that she started to cry when he spoke to her about her position/failing class.
21. She didn’t say anything or do anything when Khan made her touch his chest and private parts or when he pressed her stomach or when Khan opened her top button of her uniform and squeezed her breasts because she was scared. She didn’t report the matter to the school principal because she was scared.
22. She agreed that her vomiting started before the incident with Khan and that she was also seeing a psychologist before this incident had occurred. Her mother learnt about the incident when they visited the psychologist sometime after the incident.
23. Learner F testified that during the first break on the day of the incident, Learner A informed her in detail about how that Khan had touched her breasts.
24. Learner G testified that she went to the toilet during the computer lesson and as she went past Khan’s classroom, she noticed the door closed. She assumed that Khan had taken Learner A to the sick room. She returned to class after computer lessons and noticed that a hot dog was delivered for Learner A but she could not eat it as she was very ill. During the first break, she could see that Learner A was angry and not okay and asked her what happened. Learner A told her in detail about the incident relating to Khan touching her breast.
25. Under cross-examination, when it was put to her that she could not see the classroom door closed because the toilet was in the opposite direction, she stated that she used the passage that goes past the classroom.
26. Nel testified that on 17 August 2019, Khan phoned the office between 08:30 and 09:00. He requested food for Learner A as she had not eaten that morning. She requested Khan to send Learner A to the office. When Learner A arrived, she said that she had stomach cramps and food makes her vomit. Learner A had one spoon of Jungle Oats and vomited. She then left Learner A with Krockett at the sickroom and she proceeded to arrange lunch for Learner A. She told Khan that lunch would be sent via the tuck shop to the class room. She also informed Khan that she was going to phone Learner A’s parents as a result of the vomiting. Khan came up during a free period to enquire about Learner A. She informed him that Learner A’s uncle was coming in to fetch her. Lunch was taken to the class room at about 10:00.
27. Under cross-examination, she disagreed that Khan had come to see her to arrange lunch for Learner A as she had already informed him that she was going to arrange lunch. She agreed that Learner A was in the sick room under Krockett’s control. Learner A’s uncle came to fetch her at 12:00.
28. Khan testified that he is married for four years and has two children. His wife was pregnant with the second child and her expected date of confinement was 17 October 2018, the date on when the alleged incident took place. His child was born on 23 October 2018.
29. His version was that when he had the discussion with Learner A, He did not tell Learner A to go and sit at the back of the classroom. He sat at his desk and Learner A sat on a chair at the side of his desk. Under cross-examination, he offered no comment as to why he didn’t put this version to Learner A when she testified.
30. They had a discussion about the conditions at her home. She spoke to him about her fear of dying as her uncle had died because of a sangoma. He spoke to her about how her marks were dropping and that she might fail, etc. She told him that she was not feeling well and hadn’t eaten for two days.
31. He phoned Nel at about 08:30 about Learner A’s and Nel asked him to send Learner A to the office and she will arrange food. The telephone was next to his desk and so he did not have to leave his desk. At 08:45, he went to office to see Nel. He saw learner A in the sick room. Nel informed him that she will arrange lunch for Learner A.
32. He phoned his wife at 08:21 and spoke to her for 4 minutes and 33 seconds. After he spoke to Nel, he then went back to the classroom and communicated with his wife via WhatsApp between 09:06 and 09:10. He phoned his wife at 09:12. Under cross-examination, he agreed that his version regarding telephone calls and SMS to/from his wife was not put to Learner A when she testified. He explained that he only came across the information later.
33. He stated that lunch was delivered to class at about 10:00 but Learner A was not in class at that time.
34. He maintained that, prior to 17 October 2018, Learner A was always quiet in class but was friendly to him and sometimes offered him sweets. An incident occurred regarding merit points and from that day, she was angry with him and would not offer him sweets.
35. When he was clearing out Learner A’s desk, he found a letter written by Learner A which, amongst other things, stated that she hated certain teachers, including him. Under cross-examination, he conceded that he lied with regard to the letter as it did not state that she hated him or anything similar to that.
36. He did not tell Learner A to close the curtains. He maintained that he asked Learner M closed the window and Learner M had closed the curtain as well.
37. He did not hold her hand or place her hand on his body. He did not open the button of her uniform and he did not fondle her breast.
38. He maintained that it would not have been possible to put his hand inside her uniform if only one button was open. She was lying because she was seeking attention as she was not getting any attention because of the situation at home - she was abused at home and her siblings had got all the attention. He told her she was going to fail and she was worried about that. He maintained Learners A, B, F, and G were concocting a fabricated version because they were all friends and were always together at breaks.
39. He conceded under cross-examination that the version he gave in his written statement dated 07 November 2018 as well as in his opening statement was incorrect as far as it related to him being alone in class when he had a discussion with Learner A and he conceded that neither Learner B nor any other learner were present. When questioned as to why his current version differed, he stated he thought at the time that Learner B and C were present but after listening to the witnesses, everything fell into place.
40. Krockett testified that Learner A came to the sick room during the 1st or 2nd period as she was not well. Learner A remained in the sick room until she was fetched by her uncle at about 11:00, after the first break. Khan came to check on her during the first break. She was not sure as to who picked up Learner A’s bag from class. Learner A did not complain about anything that she was not happy about.
41. Under cross-examination, she agreed that Learner A went to the sickroom between 08:30 and 09:00. When it was put to her that Learner A’s version was that she went back to class, she stated that she could not remember. To the best of her recollection, Learner remained in the sickroom and was there when her uncle came to fetch her.
42. Spiteri, the principal, testified that the area outside the sick room was monitored by CCTV camera. He received a request for the footage. He request someone from the SAPS to get the information. The person went on leave and thereafter the video footage was overwritten.
Charge 2, Count 1:
43. It is alleged that Khan had instructed Learner B to lie about being in class with Learner A on 17 October 2018, when the alleged sexual harassment incident took place with Learner A.
44. Learner B testified that on 31 October 2018, Khan had sent a message to her with another learner to see him. When she got to class, Khan gave her maths work as she was absent on the previous day. She was alone in class with Khan on that day. Khan told her that Learner A had accused him of touching Learner A’s breast but he didn’t do that - he was just checking Learner A.
45. She was referred to Khan’s statement in which he alleges that she and Learner C was in class together with Learner A. She stated that she was not in class at the time of Learner A’s incident but Khan told her to tell the principal that she was present the classroom when Learner A’s incident took place. He asked her to say that she was sitting at her desk close to his table and that they could not hear the conversation but saw Learner A crying.
46. During her testimony, she alleged that Khan had touched her breasts as well but it is not necessary to detail her evidence in this regard as it did not form part of the charges.
47. Under cross-examination, she stated that the principal questioned her about Learner A’s incident. She could not remember other learners asking her about what the principal had questioned her about and she could not remember complaining to Khan about being pressurised by other learners. She also could not remember Khan asking her not to change her version that she gave to the principal because of pressure from other learners.
48. Khan testified that he did not instruct Learner B to say that she was in class when the other learners went for computer lessons. He only told her to stick to her same story that she was in class because this is what Learner B had told the principal.
49. Under cross-examination, he stated that the conversation with Learner B took place at the pool area (and not in the classroom). He could not say why this version was only raised in cross-examination for the first time and why he did not put this version to Learner B be when she testified.
Charge 2, Count 2:
50. It is alleged that Khan asked Learner C if she “had sex before, you want to teach her sex and if she wants to be a slay queen”.
51. Learner E testified that on a date that she could not remember, Khan called her to discuss an incident relating to her coping an English word from another learner during a test. She explained what happened with regard to the coping incident and Khan requested her to see him during the lunch break. When she went to class during the lunch break, there was one other learner in class. Khan requested that learner to leave the classroom and he closed the door. He questioned her with regard to the coping incident. He then asked her if she wanted to pass all her subjects to which she replied “no”. He then asked her if she knew how to do sex to which she replied “no”. He then asked her why she could not do sex. She said that she could not have sex before 21 so that they could perform certain customs to say that a child has grown up. He then told her he was going to teach her how to have sex. He said that he was going to share a secret but she cannot tell anyone - he was once a gangster and dated a number of girls. He then asked her if she wanted to be a slay queen to which she replied “I don’t”. He then asked her if she was dating another male Learner V and whether Learner V had ever touched her bum.
52. She told her sister about what Khan told her as she was afraid to tell her parents. Her Mother eventually got to know when the school sent a letter home requiring her to testify at this hearing. She told Learner F and Learner G what Khan told her.
53. Under cross-examination, she agreed that she had sent a WhatsApp message to Khan. She got his number from a friend. She sent a message to Khan to check if her friend was not lying about having Khan’s number.
54. She disputed that Khan’s question regarding “Slay Queen” was in relation to her WhatsApp profile picture. She stated that she had a child’s picture as her profile picture and she disputed Khan’s version that it was a picture of a lady wearing a bikini with the words “Slay Queen” written on it. She maintained that it was a picture of a light skinned child. That was the only profile picture she had. Thereafter she deleted his number and blocked him. She disputed Khan’s version that he questioned her interest in boys because she was caught kissing Learner V.
55. She agreed that she and other learners in her class got into trouble for a letter that rated the boys in class. She maintained that another learner passed the letter to her and she passed it on to the back. She disputed that Naicker had caught her with the letter in her possession. She did not know who the author of that letter was.
56. Learner F testified that Learner E told her about the incident relating to Khan asking Learner E about sex and if Learner E wanted to be a slay queen.
57. Learner G testified that they were outside the classroom after the second break. The bell rand but Khan did not call come out to call them. She opened the door and went into the class. Khan shouted at her and said “can’t you see that I am still busy with Learner E. She closed the door and went outside. Learner E looked angry when she came out and she asked Learner E what happened but she didn’t respond. They asked her again after school and Learner E told them that Khan had questioned her with regard to the copying incident and Khan also asked her if she wanted all the boys to fancy her. Learner E also told them that Khan had asked her if she can do sex and he offered to teach her how to do sex.
58. Under cross-examination, she disputed Khan’s version that the door was never closed when he questioned Learner E.
59. Khan testified that there were many incidents involving Learner E and she was not well behaved. She and another learner were caught coping during an English test. She was involved in writing a note and passing it around in class - the note inquired “which boy would you rather kiss – A, B. C. D”. She contacted him via WhatsApp – her profile picture was of a lady wearing a bikini with the words “Slay Queen”. She had a boyfriend and they were caught kissing each other.
60. He requested her to meet him. He was upset in relation to the above issues he asked her “Do you want to be a slay queen?” and “Is this what you coming to school for?” She was very rude and didn’t want to listen to him.
61. He maintained that Learner E had lied in her testimony because she was friends with the other learners that testified.
62. Under cross-examination, he didn’t respond when questioned as to why he didn’t address the mentioned issues with Learner E when it happened.
ANALYSIS OF EVIDENCE AND ARGUMENTS
63. In this matter, the Department of Education KZN has charged Khan with committing three (3) counts of misconduct against the learners as set out in Bundle B. Whilst there are some common cause fact and some corroborating evidence on the circumstances surrounding each incident, each of the learners were alone with Khan when the incidents took place and Khan has blankly denied that he had committed any misconduct. I am therefore faced with two irreconcilable versions in each of the incidents.
64. The Courts have held that the duty of an arbitrator when confronted by irreconcilable versions, is essentially the same as that of a judge in a trial court. To come to a conclusion on the disputed issues, I am obliged to makes findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As regards (a) any finding on the credibility of a particular witness will depend on the impression about the veracity of the witness. As to (b), a witness' reliability depends, inter alia, the credibility of the witness and on the opportunities he/she had to experience or observe the event in question and on the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probabilities and improbabilities of each party's version on each of the disputed issues. The credibility of the witnesses and the improbability of what they said is not be regarded as a separate enquiry to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the versions.
65. I considered Learner A, B and E to be credible and reliable witnesses. I believe that they gave her evidence honestly of what they experienced. Their evidence was clear and precise and they held their version without hesitation or contradiction even under some fairly robust cross-examination. There were no inconsistences in their own evidence or with the other witnesses.
66. I am not convinced that Learner A or any of the other witness individually or as a group had fabricated their evidence against Khan or had conspired to bring about the dismissal of Khan. There is simply no evidence of this. I accept that they were friends at school but there were no real reasons or motive advance for them fabricating a version against Khan. I am not convinced that Learner A had fabricated the allegation against Khan because she was seeking attention or that she was going to fail and therefore needed to account for or needed an excuse for her poor results at school – the thought of coming up with such an elaborate plan supported by the other learners just seems too farfetched and improbable. I am also not convinced that Learner A had fabricated a version because she was seeking attention or even that she had hated Khan. Khan’s evidence that he came across a letter in which Learner A stated that she hated him was later retracted by Khan as lie. I am satisfied that neither Learner A nor any of the learners had anything to gain by falsely implicating Khan.
67. Khan, on the other hand was not a credible and reliable witness and I don’t believe he was being truthful. His version on the periphery issues was not corroborated and was inconsistent with what other witnesses had testified to. In general, had had performed poorly as a witness: - he changed his version during the course of this hearing, he added new evidence that was not part of his initial version and, in certain instances, he did not put his version to witnesses. It seemed to me that he made up his version as he went along. On the whole, his version on the disputed facts seemed improbable. I will deal with these issues and the contradictions and inconsistencies in his evidence under each charge.
Charge 1.
68. I accept that the incident would have taken place during Khan’s free period between 08:15 and 09:15 on the morning of 17 October 2018 when he had a 10 – 15 minutes discussion with Learner A in his classroom. The probability of the incident taking place during that discussion is not diminished by Khan’s telephone call to his wife at 08:21. The call was just for 4 minutes and the incident could have occurred either before or after that. In any event, Khan’s evidence in this regard remains untested as he did not put this version to Learner A to clarify or rebut his evidence in this regard.
69. I accept that Khan was alone with the Learner A in the classroom when this incident is alleged to have taken place. I accept the evidence of the Learner A and the other witnesses that corroborated her evidence in this regard. Khan’s initial version was that he was not alone in classroom with Learner A. He held this version in his written statement, at the commencement of this hearing and whilst cross-examining the employer’s witnesses on this issue. He didn’t deal with this issue during his evidence-in-chief. He, however, changed his version under cross-examination, and conceded that he was alone with Learner A in the classroom and that Learner B and C were not present. Given the seriousness of the allegation and given that he wrote his statement within a month of the incident, I find it difficult to believe that he “thought Learner B and C were in the classroom” until such a late stage.
70. I accept that the curtains at the back of the classroom were closed whilst Khan had a discussion with Learner A. It is common cause that the curtains on the teachers were closed. I accept Learner A’s evidence that Khan asked her to close the curtains and I reject Khan’s unsupported evidence that he asked Learner M to close the windows and he mistakenly closed the curtains. If this was so, he made no effort to explain why he didn’t correct Learner M’s mistake or open the curtains himself knowing that he was alone with Learner A in his classroom.
71. I accept that the discussion with Learner A took place at the back of the classroom. I accept Learner A’s version that Khan asked her to go to the back of the classroom. I reject Khan’s version that he sat at his desk and that Learner A had sat on a chair next to his desk during the discussion. Khan’s version in this regard was not put to Learner A to comment on or rebut and remains untested.
72. I also accept that the door was closed. Learner A’s version that the door was closed was corroborated by Learner G who went past the classroom on the way to the toilet and noticed the door closed.
73. Khan agreed that at some stage during their discussion, he touched Learner A’s face and forehead. I accept therefore that at some stage during the discussion, Khan and Learner A were in very close physical proximity to each other.
74. Having regard to the evidence holistically, the credibility and reliability of Learner A’s evidence, I accept as the more probable version that whilst Khan was alone with Learner A at the back of the classroom and with the curtains and door closed, Khan hugged Learner A and played with her hand. He made her touch his chest and his private parts. He then closed the curtain at the front of the classroom and also locked the door. He went to Learner A again and started to unbutton her uniform. He put his hand on her breast and squeezed it. The probability of Learner A’s version being true was supported by the witness she called who confirmed that Learner A had told them about the incident soon thereafter. The explanations with regard to what happened after Learner A was sent to the sickroom impacts only on the credibility of the witnesses and in this regard, Krockett was not able to say with any certainty that Learner A did not return to the classroom – Learner A’s credibility therefore remained intact. I reject Khan’s bare denial that he had not touched the applicant other than on her face and forehead during their discussion. It don’t accept his version that it would have been impossible for him to put his hand inside her uniform after opening just one button.
75. Whilst I accept that Khan was concerned about his wife as she was expecting the birth their second baby with the date of confinement also being on 17 October 2018, I reject the argument that this would necessarily negate the possibility that he could have committed the misconduct or that it would take a really disturbed individual to sexually molest a learner while at the same time being concerned about the wellbeing of his spouse.
76. I reject the notion outright that Learner A was not so naïve as to have remained silent whilst Khan harass her or that she would have questioned Khan when he, eg, asked her to close the curtains. Considering the teacher-learner relationship of respect and power, I accept that Learner A would have accepted most things that Khan asked her to do without questing his authority. I accept, in the same vein that she would have been scared to ask Khan to stop or to report the incident thereafter. Her reaction and conduct is consistent with what is expect a learner of that age to do.
77. I therefore find, on the balance of probability, that Khan committed the misconduct as per Charge 1.
Charge 2, Count 1
78. I accept that Khan had a discussion with Learner B in relation to whether she was in the classroom when the incident with Learner A took place.
79. I accept Learner B’s version that that discussion had taken place in Khan’s classroom. Khan’s did not dispute this when Learner B testified. Khan, however, stated under cross-examination that that discussion took place at the pool area and not in the classroom. This was a new version raised for the first time in his cross-examination. This version was not put to Learner B to comment or to rebut that evidence and it therefore remains untested. I therefore reject his evidence in this regard.
80. Khan’s version was that he only asked Learner B to stick to her story. It was not clear from the evidence as to what story Learner B was required to stick to. Given that Khan had misrepresented the truth in his written statement that Learner B was in his classroom when the Learner A’s incident occurred and that he maintained this untrue version during the hearing until the time of his cross-examination, the chances that he would have asked learner B to lie and say that she was in the classroom is very probable.
81. Having regard to the evidence holistically, the credibility and reliability of Learner B’s evidence, I accept as the more probable version that khan had asked Learner B to lie about her being present in class when Learner A’s incident took place.
82. I therefore find that Khan committed the misconduct as per Charge 2, Count 1
Charge 2, Count 2
83. I accept that Khan called Learner E to his classroom and had a discussion with her regarding her general behaviour in school. I accept Learner E’s evidence that she was alone with Khan as this was not disputed by Khan.
84. I also accept that the door was closed during their discussion. Learner E’s evidence that the door was closed was supported by Learner G. Although Khan disputed the evidence of Learner G in this regard, he never testify that the door was actually open.
85. Having regard to the evidence holistically, the credibility and reliability of Learner E’s evidence, I accept as the more probable version that whilst Khan was alone with Learner E in his classroom and with the door closed, he ask her during their discussion if she knew how to do sex and why she could not do sex. He told her he was going to teach her how to have sex. He also asked her if she wanted to be a slay queen. It is clear that there was some discussion about “slay queen”. The probabilities that Khan would have said these things to Learner E is supported by the evidence of Learner F and Learner G both of whom confirmed that Learner E had told them about that incident soon thereafter. I reject Khans evidence that the use of the words “slay queen” was in relation to Learner E’s profile picture. I accept Learner E’s version that she didn’t have a profile picture of a lady in a bikini with the words “slay queen” written across it.
86. I therefore find that Khan committed the misconduct as per Charge 2, Count 2 in relation to Learner E.
Appropriate Sanction:
87. In committing the misconduct mentioned in the various charges, Khan contravened section 17(1)(b) and 18(1)(q) of the EEA. The misconduct that Khan had committed in relation to Charge 1 and Charge 2, Count 2, are of a sexual nature and is regarded as serious misconduct in terms of section 17 of the EEA.
88. In terms of Section 17(b) of the EEA, an educator must be dismissed if he or she is found guilty of committing an act of sexual assault on a learner. The sanction of dismissal is mandatory, irrespective of any mitigating factors.
89. Having regard to the gravity of the misconduct, the rights of learners to be treated with dignity, respect and without emotional and/or physical abuse and being mindful of the fact that Khan, as an educator, was employed in a position of trust and works closely with learners, I am satisfied that the employment relationship has irretrievable broken down and that dismissal is an appropriate sanction.
90. I am also mindful that the Constitutional Court held that section 28(2) of the Constitution imposes a duty on all of those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions. Courts and arbitrators are bound to give consideration to the effect their decisions will have on the lives of children, not only in the life of the child who is a victim of sexual misconduct but also the lives of learners in general who have the right to be protected against sexual abuse from educators.
91. I therefore find that dismissal is an appropriate sanction.
Award
92. In the circumstances I make the following award:
92.1. The employee, Yusuf Khan, contravened section 17(1)(b) and 18(1)(q) of the Employment of Educators Act, 76 of 1998.
92.2. The employer, Department of Education KZN, must with immediate effect impose the sanction of dismissal on Yusuf Khan.
Raj Shanker
Senior ELRC Arbitrator
Kwazulu Natal
Province: KwaZulu-Natal
Applicant: Yusuf Khan
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Dismissal - Misconduct
Venue: ELRC venue in Overport, Durban
Award Date: 28 February 2020
Arbitrator: R. Shanker
Case No PSES 861-18/19 KZN
In the matter between
Yusuf Khan Applicant
And
Department of Education KZN Respondent
ARBITRATOR: R. Shanker
DELIVERED: 28 February 2020
AWARD
DETAILS OF HEARING AND REPRESENTATION
1. This matter was referred to the Education Labour Relations Council (ELRC) in terms of section 188A of the Labour Relations Act 66 of 1995 (LRA) as amended and was hear on 12 April 2019, 09 July 2019, 23 July 2019, 30 September 2019 and 11 February 2020 at the ELRC venue in Overport, Durban.
2. The employee, Yusuf Khan (“Khan”) was represented by I Dhanook, an official of NAPTOSA. The employer, Department of Education KZN, was represented by M Mtetwa.
3. The matter relates to allegations of sexual harassment of learners who are minors. Many of witnesses that testified were also minors. In accordance with the protection of the rights of minors, the identity of the learners will not be disclosed. I will refer to the minors as the Learner A, B, C, etc. in this award. They gave “in camera” evidence and by making use of an intermediary and an interpreter.
4. The parties submitted written arguments which I considered in making this award.
ISSUES TO BE DECIDED
5. The issue to be determined is whether the employee committed the misconduct as per the charges contained in Bundle B and, if so, to determine an appropriate disciplinary sanction.
BACKGROUND TO DISPUTE
6. Khan is employed as an educator in terms of the Employment of Educators Act 76 of 1998 (“Act”). He commenced employment in about 2015 and has 3 ½ service at the current school.
7. The employer alleges that the khan committed the following misconduct:
Charge 1: On or around 17 October 2018 and at or near the School, you allegedly committed an act of sexual harassment on Learner A, a grade 5 learner at the school, by fondling her breasts. In doing so, you contravened section 17(1)(b) of the Act.
Charge 2 It is alleged that whilst on duty you conducted yourself in an improper and unacceptable manners in that:
Count 1: During the 3rd school term of 2018, you instructed Learner B, a grade 5 learner at the school, to lie about being in class with Learner A on 17 October 2018, when the alleged sexual harassment incident took place.
Count 2: Around the 3rd school term in 2018, you asked Learner C, a grade 5 learner, at the school if she “had sex before, you want to teach her sex and if she wants to be a slay queen”.
You thereby contravened section 18(1)(q) of the Act.
8. Khan denied that he committed the misconduct mentioned in the charges and his response to the allegations were as follows:
8.1. In Charge 1, his version was that he only touched Learner A’s face and forehead when she complained about being unwell. He was not alone when this incident took place.
8.2. In charge 2, Count 1, his version was that he never asked Learner B to lie. He only asked her to stick to her story and not be influenced/threatened or intimidated by anyone.
8.3. In Charge 2 Count 2, his version was that he reprimanded Learner E because she was getting up to mischief like kissing another learner and having a profile picture of a slay queen on her phone. He did not talk to her about sex.
9. The employer called six witness to testify in support of its version and produced two sets of documents marked Annexures “A” & “B”. Khan testified and called two witnesses. He submitted a bundle of documents marked Annexure “C”.
SURVEY OF EVIDENCE AND ARGUMENT
10. The evidence and arguments hereunder are not verbatim accounts of the proceedings but a summary of the evidence presented at this hearing, including the facts that were agreed upon by the parties. All evidence and arguments were considered prior to drafting this award. For convenience, I will deal with the evidence under each charge.
Charge 1:
11. It is alleged that Khan had sexually harassed Learner A by fondling her breasts on 17 October 2018. At the time of the incident, Learner A was 11 years old and a grade 5 learner in Khan’s class. It is common cause that:
11.1. Khan had a double free period between 08:15 and 09:15. Learners had to go for computer lessons during this time and Khan had the classroom to himself.
11.2. Learners left his classroom at 08:10.
11.3. He kept Learner A behind in his class because she didn’t finish her work.
11.4. Learner A and Khan were alone in his classroom. Although Khan initially maintain that he was not alone in class, he conceded under cross-examination that neither Learner B nor any other learner were present.
11.5. The curtains at the back of the classroom were closed. (The conflicting evidence is with regard to who closed the curtain and whether Khan had later closed the curtains at the front of classroom)
11.6. Khan had a 10 – 15 minutes discussion with Learner A in his classroom regarding, amongst things, her situation at home and illness.
11.7. Learner A was not feeling well on the day. After the discussions, Khan sent Learner A to the office to get some food.
12. Learner A testified to the following at this hearing. She normally sat at the front of the classroom, in the first row. When all the other learners left for computer lessons, Khan asked her to go and sit at the back of the classroom and he started to talk to her about her situation at home and about her illness.
13. Whilst she was seated at the back of the class, Khan came to her and pulled (“picked”) her up from her chair into a standing position. He was on her right hand side. Whilst asking her several more questions, he started to hug her in different ways – from the front and back. He started to play with her hand and he made her touch his chest and his private parts.
14. He asked her where it was sore and she told him that her stomach was sore. He began pressing (“pumping”) her stomach. He then quickly went to close the curtain at the front of the classroom and also locked the door stating that he did not want anyone to see them there. He came back to her and started to unbutton her uniform. He put his hand on her breast and squeezed it.
15. After the incident, she went to office and they gave her some jungle oats. She started vomiting after eating it. They then gave her an apple which she ate. Khan later came to the sick room and told her to return to class room to write a test, which she did.
16. Later, the tuck-shop lady that distributes food came to her classroom and called out her name. She was shocked as she had not ordered any food. Khan looked at her as if he knew what was going on. As it was the first break time, she took one bite and left.
17. On the same day of the incident, she told her friends Learner F and Learner G how Khan had touched her breast. She told her granny the following day about the incident.
18. She disputed Khan’s version that he only touched her forehead and face. She disputed that Learner M had closed the curtains at the back of the classroom and stated that Learner M was not there that day. When the children returned to the class room the curtains were still closed.
19. She agreed that she used to offer Khan sweets which he would take. She denied that Khan had said he will only take the sweets when she started doing her work. She denied that Khan had spoken to her about her results and position in class. She agreed that her position was getting better but then dropped. She stated that her results dropped because she was not doing her work and she was stressing about telling her parents about what Khan had did.
20. She agreed that Khan had spoken to her about her homework not being done but she disagreed that he had spoken to her about her position in class and she denied Khan’s version that she started to cry when he spoke to her about her position/failing class.
21. She didn’t say anything or do anything when Khan made her touch his chest and private parts or when he pressed her stomach or when Khan opened her top button of her uniform and squeezed her breasts because she was scared. She didn’t report the matter to the school principal because she was scared.
22. She agreed that her vomiting started before the incident with Khan and that she was also seeing a psychologist before this incident had occurred. Her mother learnt about the incident when they visited the psychologist sometime after the incident.
23. Learner F testified that during the first break on the day of the incident, Learner A informed her in detail about how that Khan had touched her breasts.
24. Learner G testified that she went to the toilet during the computer lesson and as she went past Khan’s classroom, she noticed the door closed. She assumed that Khan had taken Learner A to the sick room. She returned to class after computer lessons and noticed that a hot dog was delivered for Learner A but she could not eat it as she was very ill. During the first break, she could see that Learner A was angry and not okay and asked her what happened. Learner A told her in detail about the incident relating to Khan touching her breast.
25. Under cross-examination, when it was put to her that she could not see the classroom door closed because the toilet was in the opposite direction, she stated that she used the passage that goes past the classroom.
26. Nel testified that on 17 August 2019, Khan phoned the office between 08:30 and 09:00. He requested food for Learner A as she had not eaten that morning. She requested Khan to send Learner A to the office. When Learner A arrived, she said that she had stomach cramps and food makes her vomit. Learner A had one spoon of Jungle Oats and vomited. She then left Learner A with Krockett at the sickroom and she proceeded to arrange lunch for Learner A. She told Khan that lunch would be sent via the tuck shop to the class room. She also informed Khan that she was going to phone Learner A’s parents as a result of the vomiting. Khan came up during a free period to enquire about Learner A. She informed him that Learner A’s uncle was coming in to fetch her. Lunch was taken to the class room at about 10:00.
27. Under cross-examination, she disagreed that Khan had come to see her to arrange lunch for Learner A as she had already informed him that she was going to arrange lunch. She agreed that Learner A was in the sick room under Krockett’s control. Learner A’s uncle came to fetch her at 12:00.
28. Khan testified that he is married for four years and has two children. His wife was pregnant with the second child and her expected date of confinement was 17 October 2018, the date on when the alleged incident took place. His child was born on 23 October 2018.
29. His version was that when he had the discussion with Learner A, He did not tell Learner A to go and sit at the back of the classroom. He sat at his desk and Learner A sat on a chair at the side of his desk. Under cross-examination, he offered no comment as to why he didn’t put this version to Learner A when she testified.
30. They had a discussion about the conditions at her home. She spoke to him about her fear of dying as her uncle had died because of a sangoma. He spoke to her about how her marks were dropping and that she might fail, etc. She told him that she was not feeling well and hadn’t eaten for two days.
31. He phoned Nel at about 08:30 about Learner A’s and Nel asked him to send Learner A to the office and she will arrange food. The telephone was next to his desk and so he did not have to leave his desk. At 08:45, he went to office to see Nel. He saw learner A in the sick room. Nel informed him that she will arrange lunch for Learner A.
32. He phoned his wife at 08:21 and spoke to her for 4 minutes and 33 seconds. After he spoke to Nel, he then went back to the classroom and communicated with his wife via WhatsApp between 09:06 and 09:10. He phoned his wife at 09:12. Under cross-examination, he agreed that his version regarding telephone calls and SMS to/from his wife was not put to Learner A when she testified. He explained that he only came across the information later.
33. He stated that lunch was delivered to class at about 10:00 but Learner A was not in class at that time.
34. He maintained that, prior to 17 October 2018, Learner A was always quiet in class but was friendly to him and sometimes offered him sweets. An incident occurred regarding merit points and from that day, she was angry with him and would not offer him sweets.
35. When he was clearing out Learner A’s desk, he found a letter written by Learner A which, amongst other things, stated that she hated certain teachers, including him. Under cross-examination, he conceded that he lied with regard to the letter as it did not state that she hated him or anything similar to that.
36. He did not tell Learner A to close the curtains. He maintained that he asked Learner M closed the window and Learner M had closed the curtain as well.
37. He did not hold her hand or place her hand on his body. He did not open the button of her uniform and he did not fondle her breast.
38. He maintained that it would not have been possible to put his hand inside her uniform if only one button was open. She was lying because she was seeking attention as she was not getting any attention because of the situation at home - she was abused at home and her siblings had got all the attention. He told her she was going to fail and she was worried about that. He maintained Learners A, B, F, and G were concocting a fabricated version because they were all friends and were always together at breaks.
39. He conceded under cross-examination that the version he gave in his written statement dated 07 November 2018 as well as in his opening statement was incorrect as far as it related to him being alone in class when he had a discussion with Learner A and he conceded that neither Learner B nor any other learner were present. When questioned as to why his current version differed, he stated he thought at the time that Learner B and C were present but after listening to the witnesses, everything fell into place.
40. Krockett testified that Learner A came to the sick room during the 1st or 2nd period as she was not well. Learner A remained in the sick room until she was fetched by her uncle at about 11:00, after the first break. Khan came to check on her during the first break. She was not sure as to who picked up Learner A’s bag from class. Learner A did not complain about anything that she was not happy about.
41. Under cross-examination, she agreed that Learner A went to the sickroom between 08:30 and 09:00. When it was put to her that Learner A’s version was that she went back to class, she stated that she could not remember. To the best of her recollection, Learner remained in the sickroom and was there when her uncle came to fetch her.
42. Spiteri, the principal, testified that the area outside the sick room was monitored by CCTV camera. He received a request for the footage. He request someone from the SAPS to get the information. The person went on leave and thereafter the video footage was overwritten.
Charge 2, Count 1:
43. It is alleged that Khan had instructed Learner B to lie about being in class with Learner A on 17 October 2018, when the alleged sexual harassment incident took place with Learner A.
44. Learner B testified that on 31 October 2018, Khan had sent a message to her with another learner to see him. When she got to class, Khan gave her maths work as she was absent on the previous day. She was alone in class with Khan on that day. Khan told her that Learner A had accused him of touching Learner A’s breast but he didn’t do that - he was just checking Learner A.
45. She was referred to Khan’s statement in which he alleges that she and Learner C was in class together with Learner A. She stated that she was not in class at the time of Learner A’s incident but Khan told her to tell the principal that she was present the classroom when Learner A’s incident took place. He asked her to say that she was sitting at her desk close to his table and that they could not hear the conversation but saw Learner A crying.
46. During her testimony, she alleged that Khan had touched her breasts as well but it is not necessary to detail her evidence in this regard as it did not form part of the charges.
47. Under cross-examination, she stated that the principal questioned her about Learner A’s incident. She could not remember other learners asking her about what the principal had questioned her about and she could not remember complaining to Khan about being pressurised by other learners. She also could not remember Khan asking her not to change her version that she gave to the principal because of pressure from other learners.
48. Khan testified that he did not instruct Learner B to say that she was in class when the other learners went for computer lessons. He only told her to stick to her same story that she was in class because this is what Learner B had told the principal.
49. Under cross-examination, he stated that the conversation with Learner B took place at the pool area (and not in the classroom). He could not say why this version was only raised in cross-examination for the first time and why he did not put this version to Learner B be when she testified.
Charge 2, Count 2:
50. It is alleged that Khan asked Learner C if she “had sex before, you want to teach her sex and if she wants to be a slay queen”.
51. Learner E testified that on a date that she could not remember, Khan called her to discuss an incident relating to her coping an English word from another learner during a test. She explained what happened with regard to the coping incident and Khan requested her to see him during the lunch break. When she went to class during the lunch break, there was one other learner in class. Khan requested that learner to leave the classroom and he closed the door. He questioned her with regard to the coping incident. He then asked her if she wanted to pass all her subjects to which she replied “no”. He then asked her if she knew how to do sex to which she replied “no”. He then asked her why she could not do sex. She said that she could not have sex before 21 so that they could perform certain customs to say that a child has grown up. He then told her he was going to teach her how to have sex. He said that he was going to share a secret but she cannot tell anyone - he was once a gangster and dated a number of girls. He then asked her if she wanted to be a slay queen to which she replied “I don’t”. He then asked her if she was dating another male Learner V and whether Learner V had ever touched her bum.
52. She told her sister about what Khan told her as she was afraid to tell her parents. Her Mother eventually got to know when the school sent a letter home requiring her to testify at this hearing. She told Learner F and Learner G what Khan told her.
53. Under cross-examination, she agreed that she had sent a WhatsApp message to Khan. She got his number from a friend. She sent a message to Khan to check if her friend was not lying about having Khan’s number.
54. She disputed that Khan’s question regarding “Slay Queen” was in relation to her WhatsApp profile picture. She stated that she had a child’s picture as her profile picture and she disputed Khan’s version that it was a picture of a lady wearing a bikini with the words “Slay Queen” written on it. She maintained that it was a picture of a light skinned child. That was the only profile picture she had. Thereafter she deleted his number and blocked him. She disputed Khan’s version that he questioned her interest in boys because she was caught kissing Learner V.
55. She agreed that she and other learners in her class got into trouble for a letter that rated the boys in class. She maintained that another learner passed the letter to her and she passed it on to the back. She disputed that Naicker had caught her with the letter in her possession. She did not know who the author of that letter was.
56. Learner F testified that Learner E told her about the incident relating to Khan asking Learner E about sex and if Learner E wanted to be a slay queen.
57. Learner G testified that they were outside the classroom after the second break. The bell rand but Khan did not call come out to call them. She opened the door and went into the class. Khan shouted at her and said “can’t you see that I am still busy with Learner E. She closed the door and went outside. Learner E looked angry when she came out and she asked Learner E what happened but she didn’t respond. They asked her again after school and Learner E told them that Khan had questioned her with regard to the copying incident and Khan also asked her if she wanted all the boys to fancy her. Learner E also told them that Khan had asked her if she can do sex and he offered to teach her how to do sex.
58. Under cross-examination, she disputed Khan’s version that the door was never closed when he questioned Learner E.
59. Khan testified that there were many incidents involving Learner E and she was not well behaved. She and another learner were caught coping during an English test. She was involved in writing a note and passing it around in class - the note inquired “which boy would you rather kiss – A, B. C. D”. She contacted him via WhatsApp – her profile picture was of a lady wearing a bikini with the words “Slay Queen”. She had a boyfriend and they were caught kissing each other.
60. He requested her to meet him. He was upset in relation to the above issues he asked her “Do you want to be a slay queen?” and “Is this what you coming to school for?” She was very rude and didn’t want to listen to him.
61. He maintained that Learner E had lied in her testimony because she was friends with the other learners that testified.
62. Under cross-examination, he didn’t respond when questioned as to why he didn’t address the mentioned issues with Learner E when it happened.
ANALYSIS OF EVIDENCE AND ARGUMENTS
63. In this matter, the Department of Education KZN has charged Khan with committing three (3) counts of misconduct against the learners as set out in Bundle B. Whilst there are some common cause fact and some corroborating evidence on the circumstances surrounding each incident, each of the learners were alone with Khan when the incidents took place and Khan has blankly denied that he had committed any misconduct. I am therefore faced with two irreconcilable versions in each of the incidents.
64. The Courts have held that the duty of an arbitrator when confronted by irreconcilable versions, is essentially the same as that of a judge in a trial court. To come to a conclusion on the disputed issues, I am obliged to makes findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As regards (a) any finding on the credibility of a particular witness will depend on the impression about the veracity of the witness. As to (b), a witness' reliability depends, inter alia, the credibility of the witness and on the opportunities he/she had to experience or observe the event in question and on the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probabilities and improbabilities of each party's version on each of the disputed issues. The credibility of the witnesses and the improbability of what they said is not be regarded as a separate enquiry to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the versions.
65. I considered Learner A, B and E to be credible and reliable witnesses. I believe that they gave her evidence honestly of what they experienced. Their evidence was clear and precise and they held their version without hesitation or contradiction even under some fairly robust cross-examination. There were no inconsistences in their own evidence or with the other witnesses.
66. I am not convinced that Learner A or any of the other witness individually or as a group had fabricated their evidence against Khan or had conspired to bring about the dismissal of Khan. There is simply no evidence of this. I accept that they were friends at school but there were no real reasons or motive advance for them fabricating a version against Khan. I am not convinced that Learner A had fabricated the allegation against Khan because she was seeking attention or that she was going to fail and therefore needed to account for or needed an excuse for her poor results at school – the thought of coming up with such an elaborate plan supported by the other learners just seems too farfetched and improbable. I am also not convinced that Learner A had fabricated a version because she was seeking attention or even that she had hated Khan. Khan’s evidence that he came across a letter in which Learner A stated that she hated him was later retracted by Khan as lie. I am satisfied that neither Learner A nor any of the learners had anything to gain by falsely implicating Khan.
67. Khan, on the other hand was not a credible and reliable witness and I don’t believe he was being truthful. His version on the periphery issues was not corroborated and was inconsistent with what other witnesses had testified to. In general, had had performed poorly as a witness: - he changed his version during the course of this hearing, he added new evidence that was not part of his initial version and, in certain instances, he did not put his version to witnesses. It seemed to me that he made up his version as he went along. On the whole, his version on the disputed facts seemed improbable. I will deal with these issues and the contradictions and inconsistencies in his evidence under each charge.
Charge 1.
68. I accept that the incident would have taken place during Khan’s free period between 08:15 and 09:15 on the morning of 17 October 2018 when he had a 10 – 15 minutes discussion with Learner A in his classroom. The probability of the incident taking place during that discussion is not diminished by Khan’s telephone call to his wife at 08:21. The call was just for 4 minutes and the incident could have occurred either before or after that. In any event, Khan’s evidence in this regard remains untested as he did not put this version to Learner A to clarify or rebut his evidence in this regard.
69. I accept that Khan was alone with the Learner A in the classroom when this incident is alleged to have taken place. I accept the evidence of the Learner A and the other witnesses that corroborated her evidence in this regard. Khan’s initial version was that he was not alone in classroom with Learner A. He held this version in his written statement, at the commencement of this hearing and whilst cross-examining the employer’s witnesses on this issue. He didn’t deal with this issue during his evidence-in-chief. He, however, changed his version under cross-examination, and conceded that he was alone with Learner A in the classroom and that Learner B and C were not present. Given the seriousness of the allegation and given that he wrote his statement within a month of the incident, I find it difficult to believe that he “thought Learner B and C were in the classroom” until such a late stage.
70. I accept that the curtains at the back of the classroom were closed whilst Khan had a discussion with Learner A. It is common cause that the curtains on the teachers were closed. I accept Learner A’s evidence that Khan asked her to close the curtains and I reject Khan’s unsupported evidence that he asked Learner M to close the windows and he mistakenly closed the curtains. If this was so, he made no effort to explain why he didn’t correct Learner M’s mistake or open the curtains himself knowing that he was alone with Learner A in his classroom.
71. I accept that the discussion with Learner A took place at the back of the classroom. I accept Learner A’s version that Khan asked her to go to the back of the classroom. I reject Khan’s version that he sat at his desk and that Learner A had sat on a chair next to his desk during the discussion. Khan’s version in this regard was not put to Learner A to comment on or rebut and remains untested.
72. I also accept that the door was closed. Learner A’s version that the door was closed was corroborated by Learner G who went past the classroom on the way to the toilet and noticed the door closed.
73. Khan agreed that at some stage during their discussion, he touched Learner A’s face and forehead. I accept therefore that at some stage during the discussion, Khan and Learner A were in very close physical proximity to each other.
74. Having regard to the evidence holistically, the credibility and reliability of Learner A’s evidence, I accept as the more probable version that whilst Khan was alone with Learner A at the back of the classroom and with the curtains and door closed, Khan hugged Learner A and played with her hand. He made her touch his chest and his private parts. He then closed the curtain at the front of the classroom and also locked the door. He went to Learner A again and started to unbutton her uniform. He put his hand on her breast and squeezed it. The probability of Learner A’s version being true was supported by the witness she called who confirmed that Learner A had told them about the incident soon thereafter. The explanations with regard to what happened after Learner A was sent to the sickroom impacts only on the credibility of the witnesses and in this regard, Krockett was not able to say with any certainty that Learner A did not return to the classroom – Learner A’s credibility therefore remained intact. I reject Khan’s bare denial that he had not touched the applicant other than on her face and forehead during their discussion. It don’t accept his version that it would have been impossible for him to put his hand inside her uniform after opening just one button.
75. Whilst I accept that Khan was concerned about his wife as she was expecting the birth their second baby with the date of confinement also being on 17 October 2018, I reject the argument that this would necessarily negate the possibility that he could have committed the misconduct or that it would take a really disturbed individual to sexually molest a learner while at the same time being concerned about the wellbeing of his spouse.
76. I reject the notion outright that Learner A was not so naïve as to have remained silent whilst Khan harass her or that she would have questioned Khan when he, eg, asked her to close the curtains. Considering the teacher-learner relationship of respect and power, I accept that Learner A would have accepted most things that Khan asked her to do without questing his authority. I accept, in the same vein that she would have been scared to ask Khan to stop or to report the incident thereafter. Her reaction and conduct is consistent with what is expect a learner of that age to do.
77. I therefore find, on the balance of probability, that Khan committed the misconduct as per Charge 1.
Charge 2, Count 1
78. I accept that Khan had a discussion with Learner B in relation to whether she was in the classroom when the incident with Learner A took place.
79. I accept Learner B’s version that that discussion had taken place in Khan’s classroom. Khan’s did not dispute this when Learner B testified. Khan, however, stated under cross-examination that that discussion took place at the pool area and not in the classroom. This was a new version raised for the first time in his cross-examination. This version was not put to Learner B to comment or to rebut that evidence and it therefore remains untested. I therefore reject his evidence in this regard.
80. Khan’s version was that he only asked Learner B to stick to her story. It was not clear from the evidence as to what story Learner B was required to stick to. Given that Khan had misrepresented the truth in his written statement that Learner B was in his classroom when the Learner A’s incident occurred and that he maintained this untrue version during the hearing until the time of his cross-examination, the chances that he would have asked learner B to lie and say that she was in the classroom is very probable.
81. Having regard to the evidence holistically, the credibility and reliability of Learner B’s evidence, I accept as the more probable version that khan had asked Learner B to lie about her being present in class when Learner A’s incident took place.
82. I therefore find that Khan committed the misconduct as per Charge 2, Count 1
Charge 2, Count 2
83. I accept that Khan called Learner E to his classroom and had a discussion with her regarding her general behaviour in school. I accept Learner E’s evidence that she was alone with Khan as this was not disputed by Khan.
84. I also accept that the door was closed during their discussion. Learner E’s evidence that the door was closed was supported by Learner G. Although Khan disputed the evidence of Learner G in this regard, he never testify that the door was actually open.
85. Having regard to the evidence holistically, the credibility and reliability of Learner E’s evidence, I accept as the more probable version that whilst Khan was alone with Learner E in his classroom and with the door closed, he ask her during their discussion if she knew how to do sex and why she could not do sex. He told her he was going to teach her how to have sex. He also asked her if she wanted to be a slay queen. It is clear that there was some discussion about “slay queen”. The probabilities that Khan would have said these things to Learner E is supported by the evidence of Learner F and Learner G both of whom confirmed that Learner E had told them about that incident soon thereafter. I reject Khans evidence that the use of the words “slay queen” was in relation to Learner E’s profile picture. I accept Learner E’s version that she didn’t have a profile picture of a lady in a bikini with the words “slay queen” written across it.
86. I therefore find that Khan committed the misconduct as per Charge 2, Count 2 in relation to Learner E.
Appropriate Sanction:
87. In committing the misconduct mentioned in the various charges, Khan contravened section 17(1)(b) and 18(1)(q) of the EEA. The misconduct that Khan had committed in relation to Charge 1 and Charge 2, Count 2, are of a sexual nature and is regarded as serious misconduct in terms of section 17 of the EEA.
88. In terms of Section 17(b) of the EEA, an educator must be dismissed if he or she is found guilty of committing an act of sexual assault on a learner. The sanction of dismissal is mandatory, irrespective of any mitigating factors.
89. Having regard to the gravity of the misconduct, the rights of learners to be treated with dignity, respect and without emotional and/or physical abuse and being mindful of the fact that Khan, as an educator, was employed in a position of trust and works closely with learners, I am satisfied that the employment relationship has irretrievable broken down and that dismissal is an appropriate sanction.
90. I am also mindful that the Constitutional Court held that section 28(2) of the Constitution imposes a duty on all of those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions. Courts and arbitrators are bound to give consideration to the effect their decisions will have on the lives of children, not only in the life of the child who is a victim of sexual misconduct but also the lives of learners in general who have the right to be protected against sexual abuse from educators.
91. I therefore find that dismissal is an appropriate sanction.
Award
92. In the circumstances I make the following award:
92.1. The employee, Yusuf Khan, contravened section 17(1)(b) and 18(1)(q) of the Employment of Educators Act, 76 of 1998.
92.2. The employer, Department of Education KZN, must with immediate effect impose the sanction of dismissal on Yusuf Khan.
Raj Shanker
Senior ELRC Arbitrator
Kwazulu Natal