Case Number: PSES974-18/19GP
Applicant: SADTU OBO NEIL ZACKEY
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Misconduct
Venue: ELRC offices in Centurion
Award Date: 12 March 2020
Arbitrator: Themba Manganyi
Panellist: Themba Manganyi
Case No.: PSES974-18/19GP
Dates of Hearing: 17 May 2019, 17 July 2019,
20 September 2019,
02 December 2019 &
18 February 2020
Date of Arguments: 26 February 2020
Date of Award: 12 March 2020
In the arbitration between
GAUTENG DEPARTMENT OF EDUCATION EMPLOYER
SADTU OBO NEIL ZACKEY
Mr M. Ndlovu
Tel: 012 401 6300
E-Mail Address: firstname.lastname@example.org
Employee’s representative: Mr B.T. Moyo
Telephone: 071 366 3251 / 082 483 8893
E-Mail Address: email@example.com
Details of hearing and representation
1. This matter was referred to the Education Labour Relations Council (“the Council”) as an Inquiry by an Arbitrator process in terms of section 188A of the Labour Relations Act 66 of 1995 (“the LRA”), as amended.
2. The matter was set down for 17 May 2019, 17 July 2019 and 20 September 2019 at Pretoria North Magistrate Court. It was again set down for 02 December 2019 at Tshwane South District Office and it was finalized on 18 February 2020 at the Council’s Offices in Centurion.
3. Mr Musa Ndlovu (“Ndlovu”), the Labour Relations Officer, represented the Employer, the Gauteng Department of Education in these proceedings. On the first two days of these proceedings, Mr Willie Sekhwela (“Sekhwela”) and Mr Patrick Sikhumbana (“Sikhumbana”), both from SADTU, represented the Employee, Mr Neil Zackey (“Zackey”). Mr Ben Moyo (“Moyo”), also from SADTU, took over the representation of the Employee until the matter was finalized. I am indebted to the services of the interpreters, Ms Busi Seoketsa and Mr Isaac Shabangu and to the services of the intermediaries, Ms Thiti Mokgwamme and Ms Georgina Wentzel.
Issue/s to be decided
4. The purpose of this inquiry is to determine whether the Employee (Mr Neil Zackey) is guilty of the charges leveled against him by the Employer. In the event that I find that the Employee is guilty as charged, I must determine the appropriate sanction.
5. For the record, almost all the preliminary issues that were raised in these proceedings were dealt with and rulings to that effect were issued and as such, I do not see any reason to restate them in this award as they are a matter of record.
6. The two preliminary issues that were dealt with ex tempore were the flaunting of the prescripts of Schedule 8, Item 4(2) of the Code of Good Practice: Dismissal and that charge 4 was not to be dealt with through the s188A of the LRA process.
7. For the first preliminary issue, I ruled that the Employee was duty bound to have informed the Employer when he was invited for a pre-hearing meeting that he was a shop steward, but he failed to do so. The trade union official, Sikhumbana, was ordered in a ruling dated 22 July 2019 to submit proof that Zackey was indeed a shop steward. Same was submitted on 20 September 2019 and the letter was dated 20 July 2019. It was my considered view that the letter was drafted for the purposes of these arbitration proceedings and as such, I did not deem it to be authentic. I also considered that the Employee would not be prejudiced in these proceedings as he was represented by a trade union official.
8. On the issue of charge 4, I ruled that the Employee was already on a final written warning (“FWW”) for the same offence and if found guilty, a sanction of dismissal could be meted out and as such, the s188A of the LRA process was appropriate to determine this allegation together with the other allegations that were leveled against the Employee.
9. The Employee was charged with the following transgressions:
It is alleged that whilst at your workstation, Prospectus Secondary School, you conducted yourself in an improper, disgraceful and unacceptable manner in that you have done and / or said the followings:
(1). On the 17th October 2018, you touched a female learner, TM on the back and kissed her hands.
(2). On the 14th September 2018, you touched Lin and SdR on the back moving your hands towards their bums,
(3). You made sexual remarks in the classroom during English Lessons.
(4). You continued selling sweets at the school despite being warned by the principal not to do so.
10. The Employee pleaded not guilty to all the charges.
Survey of evidence and arguments
11. Parties submitted bundles of documents and the Employer’s bundle was marked as Bundle A and the Employee’s bundle was marked as Bundle B. Parties were afforded an opportunity to call witnesses, cross-examine them and to submit their heads of arguments in writing on 26 February 2020. The entire proceedings were digitally recorded and I also took handwritten notes. The recordings of these proceedings were retained by the Council.
12. Section 138(7) of the LRA provides that the commissioner must issue an award with brief reasons. It is therefore not he purpose or the intention of this award to provide a detailed record of all the evidence and arguments that were placed before me. Even though all evidence and arguments were considered, I have only referred to the salient points that I found to be the most pertinent to making a determination in this matter.
The Employer’s case
The Employer called Mr Rafael Griffiths (“Griffiths”), Ms Sharon Isaacs (“Isaacs”), SdR and TM and they all testified under oath and minors (learners) testified with the aid of an intermediary. In summary, their evidence was as follows:
13. Griffiths stated that he was the School Principal at Prosperitus Secondary School and he confirmed that he knew the letter on page 10 of Bundle A. He stated that the reason for writing the letter was because he found Zackey selling sweets to learners during teaching time and he referred the matter to the Labour Relations Department. He testified that Zackey was issued with a FWW on 19 June 2018 (see page 9 of Bundle A in this regard). He stated that even after the FWW Zackey did not stop selling sweets to learners. He testified that the allegations on charge1, 2 and 3 emanated after two female learners who were involved in a fight were brought to his office. He took the learners involved to the female Deputy Principal (Isaacs) to handle the matter. Isaacs then reported to him that the two learners made certain revelations of sexual nature against Zackey. He then had to report the matter to the Labour Relations officials as per Circular 01 of 2016.
14. Under cross-examination, he denied that Zackey was his number one enemy at the school. He confirmed that he issued Zackey with one or two warnings in 2016 for selling sweets. He stated that he did not personally see Zackey selling sweets after the FWW, but he was told by learners that Zackey continued to sell sweets. He denied the version that Zackey stopped selling sweets after the FWW.
15. Isaacs stated that she was the Deputy Principal and the School Based Assessment Coordinator at Prospectus Secondary School. She confirmed that she authored page 8 of Bundle A. She stated that the Principal brought two girl learners who were allegedly involved in a fight to her office during lunch time. She testified that when she asked the learners why they were fighting, SdR stated that TM was spreading stories about her. Then TM responded by stating that it was Zackey who was spreading stories about SdR. She testified that the learners mentioned to her that Zackey would search SdR’s bag in her absence and he would also read messages from SdR’s cellphone. She stated that the learners also mentioned that Zackey would at times scratch their backs with his hand and move his hand towards their bums. The learners also stated that Zackey would kiss their hands and make them dance in class. Zackey would also have sexual talks with them in class and he would ask them: “het julle gevang”? - Loosely translated to mean if they engaged in sexual intercourse over the weekend. With regard to charge 4, she stated that some three to four years back, some parents complained that Zackey was selling sweets before the class tests on Tuesday and Thursdays and parents requested that Zackey be moved from teaching grade 12.
16. Under cross-examination, when asked what she meant when she stated on page 8 of Bundle A that Zackey would become sexual with the learners. She stated the learners said that Zackey would have sexual talks with them. She stated that she did not have a problem with Zackey except that he did not want to stop selling sweets. She confirmed that she never caught Zackey selling sweets after 19 June 2018, but the learners said that he did not stop selling. She disputed that it was correct for Zackey to make sexual remarks during his English literature lessons because the learners said in their statements that Zackey touched their backs and bums. She stated that Zackey’s remarks were not curriculum related. It was put to her that SdR had a qualm with Zackey after being reprimanded and that SdR said that she would get Zackey. In her comment she stated that she did not believe that any learner would want to get back at an educator in that manner.
17. SdR stated that she got involved in a fight with another learner and Zackey was the main reason that led to the fight. She testified that Zackey would tell other learners lies about her. Zackey would tell other learners that she took pictures of her nude body and that he would ask them what they did when they were with their boyfriends. She stated that Zackey once touched her on her back and moved his hand towards her bum when she was standing on the balcony. She also stated that Zackey touched one Lin on her back. She stated that she felt scared and uncomfortable when Zackey touched her because she considered him as her father. She stated that when they had double periods, Zackey would give them cellphone time during the second period. She testified that Zackey was selling sweets and when the Principal came to their class they would hide the sweets. She stated that TM told her that Zackey touched her (TM) on her back and kissed her hands.
18. Under cross examination, she stated that she was with TM when she reported this matter. She stated that TM told Isaacs that they fought because Zackey was spreading stories about her. She stated that Romeo and Juliet literature book was inappropriate for them as they were under age. When asked if Zackey would demonstrate to them during lessons. She stated that he would touch their bums. It was put to her that she once told her father that she had extra lessons with one Mr Mogale whilst it was a lie. She refuted this version. It was also put to her that she once lied about being pregnant. She stated that it was just a joke that young people tell. She stated that she did not report Zackey because she was afraid that she would be criticized. She confirmed that she did not see Zackey touching TM. She confirmed that she recalled telling Zackey that “Ek sal jou kry”, but want she meant by that was that she intended to report Zackey to her dad. She stated that TM told her that Zackey read her diary in the class.
19. TM stated that in October 2018 during the English period when she entered the classroom, Zackey kissed her hand and touched her back. Zackey then kissed Lin and SdR and he touched their bums. She stated that she felt uncomfortable because other teachers did not touch them. She stated that Zackey read SdR’s diary in front of the class and that was the reason that caused her to fight with SdR. She stated that Zackey would ask them during lessons what they were doing when they were with their boyfriends. She testified that Zackey was selling sweets during lessons and he would hide the sweets under their desks.
20. Under cross-examination, she stated that SdR was not her friend, but they were in the same class. She stated that Zackey never said anything to her about SdR. She confirmed that Zackey read SdR’s diary in the class. She stated that the incident of 17 October 2018 happened when she was in the English class. She stated that she did not tell SdR that Zackey touched her. She confirmed that she saw Zackey touching SdR and Lin. She stated that Zackey touched Lin whilst she (Lin) was seated and Lin said ‘no Sir’, but she (Lin) never said stop. She confirmed that Mother to Mother literature book had sexual connotations, but not as much as in Romeo and Juliet.
The Employee’s case
The Employee testified in his defense under oath. He also called LL, CS and RG and they all testified under oath with the aid of an intermediary. In summary, their evidence was as follows:
21. Zackey stated that he did not have a good relationship with Griffiths (the Principal) because Griffiths was a bully and he (Griffiths) always threatened educators in the staff room. He stated that Griffiths targeted him after he was issued with the FWW and the FWW WAS for a trivial matter. He also stated that Isaac’s relationship was generally not good with everyone at school. He testified that he never touched or kissed TM. The only incident that he recalled involving TM was when TM and the other girls were applying make-up in the class and he had to confiscate their make-up case. He believed that TM was led by SdR to say all the things that she said because SdR was manipulative. He further stated that SdR had a psychological disorder. Regarding Lin, he stated that Lin came to his desk to show him SdR’s pregnancy scan / sonar picture. He reprimanded her and told the girls that he did not like it when they talked about pregnancies in his class. However, SdR insisted that she was pregnant. He stated that he did not say anything explicit to the h learners and that he did not ask them any questions that are sexually related. He conceded that he once sold sweets during 2017, but he has since stopped after the FWW.
22. Under cross-examination, he confirmed that he used to sell sweets during 2017 and stated that it was not his responsibility to sell sweets. He did not have an issue with the FWW that was issued to him for selling sweets. He disputed that he continued selling sweets after he was issued with FWW. He stated that he had a platonic relationship with both TM and SdR. He disputed that he has ever touched SdR or had any sexual talks with her. He stated that when he taught the English prescribed books he did not use sexual remarks, but he taught content according to the set work.
23. LL stated that she was a student at Prosperitus Secondary School and that her friends were CS, TM, SL, RG and SdR. She testified that the allegations that were leveled against Zackey were not true as what is stated in the charge sheet never happened. She stated that TM was a good person, but at times she was easily influenced and confused. She stated that TM never told her that she was uncomfortable about Zackey kissing and touching her. With regard to charge 2, she stated that none of what was stated in the charge sheet was correct as they were always together in class. She said she knew SdR and she could tell when she was telling the truth or not. She further stated that SdR knew how to manipulate people and that in most case SdR told lies. She testified that SdR once lied about one Mr Monageng who she had after school classes, but there were no after school classes. She stated that SdR also lied about being pregnant. On charge 3, she averred that Zackey taught them what was in the books. Lastly, she stated that she knew that Zackey used to sell sweets, but after the principal reprimanded him he stopped selling sweets.
24. Under cross-examination, she was challenged that it was not the Principal who reprimanded Zackey for selling sweets, but the Deputy Principal. She disputed that and added that Zackey stopped selling sweets when he was reprimanded by the Principal in 2016 or 2017. She reiterated that the allegations in charge 1 were untrue because TM was her friend and they sat together in class. She also stated that they move classes together and TM would have told her if there was anything that happened. She confirmed that TM was a good person and that she (TM) was influenced by SdR. She stated that SdR and her were not Lin’s friends.
25. CS stated that she was a learner at Prosperitus. She stated that they were five in their group of friends and that they do not hide things from each other. She stated that she became aware of the allegations that were leveled against Zackey when Zackey told her when she was with her mom at a matric farewell function. She stated that TM was her very close friend and that TM would have told her if any of these allegations occurred. She confirmed that Zackey used to sell sweets around 2016 or 2017, but he has since stopped selling sweets since he was reprimanded. Regarding the sex talks in class, she stated that they only talked about sex when they were reading the books. She stated that she never felt uncomfortable when Zackey was teaching them Mother to Mother. She described SdR as a very bossy, sweet and manipulative person and TM as a soft, but easily influenced person who liked doing things just to fit in.
26. Under cross-examination, she confirmed that she heard about Zackey’s allegations from Zackey himself during the matric farewell. She stated that she did not know anything about the touching as it never happened. She stated that she used to sit two tables behind Lin and she would have seen anything that happened.
27. RG stated that he also was a learner at Prosperitus and that he knew SdR since they were in grade 1. He stated that SdR easily manipulated people. He stated that the allegations that were leveled against Zackey were fabrications and that if they were true, he would have seen it if it happened in class. He stated that SdR was a big liar. He said she (SdR) once came with sonar scan in class and alleged that she was pregnant, but she was lying. He stated that SdR once lied about her father and her father’s friend touching her. On the issue of the sexual remarks, he stated that Zackey did not go deep into the books. He confirmed that Zackey used to sell sweets, but he has since stopped.
28. Under cross-examination, he stated that he would seen what was happening in the classroom as he was observant. He stated that when Zackey was teaching in class, he (Zackey) would be at the board or at his desk. He confirmed that Zackey was warned for selling sweets in 2018.
Analysis of evidence and argument
29. This is an award in terms of section 138(7) of the LRA. Therefore, it is not my intention to regurgitate all the submissions that were made during these proceedings. Only the salient points would be reiterated. However, it should not be construed that I did not consider all the submissions as they have been considered. As indicated in par. 11 above, parties agreed to submit heads of arguments in writing, I have considered same when writing this award.
30. It is common cause that SdR and TM were involved in a fight and they were then taken to Griffiths’ office. Griffiths referred the two learners to Isaacs to handle the matter. It was during the interaction with Isaacs that led to the learners making the sexual harassment / remarks allegations against Zackey. Over and above the sexual harassment / remarks allegations, the issue of Zackey selling sweets during lessons also came up. In a nutshell, these are the reasons, in brief, that led to this enquiry.
31. Section 18 of the Employment of Educators Act no 76 of 1998 (“The Act”), as amended, regulates the conduct of educators and it was not in dispute that Zackey was conversant with this Act. Section 18(5) of the Act stipulates the offences that an educator may be dismissed if found guilty of. The allegations that are leveled against Zackey find tenancy under section 18 of the Act. Thus, they are very serious in nature and I may also add that they are very sensitive as they involve learners who are minors.
32. Zackey has pleaded not guilty to all the charges that were leveled against him. From the evidence that was presented during these proceedings, I could only come up with a no guilty verdict in all the charges. I will deal with each charge individually hereunder.
33. Griffiths and Isaacs relied on what they were told by SdR and TM on the charges of sexual harassment and sexual remarks. It is worrisome that these sexual harassment / remarks allegations only came up when SdR and TM were brought to the Principal’s office on 17 October 2018 for ill-discipline. It was alleged that the fight was as a result of TM spreading stories about SdR. I find this version very farfetched. SdR and TM testified that the touching of backs and kissing of hands happened in the classroom, except for once in the balcony when Zackey allegedly touched SdR on her back. SdR and TM sat in the first and third row in the class. Clearly, most of the learners would have seen Zackey touching them.
34. Zackey stated that the only time he came into close contact with TM was when he confiscated a make-up case from TM and the other girls who were busy applying make-up in class. I cannot find anything sinister about this touch as his intention was to take the make-up case away from the girl learners who were doing what they were not supposed to be doing in class. I find it rather convenient that TM alleged that Zackey kissed her on the day that she fought with SdR, that is, on 17 October 2018. I find that TM said that in order to save herself from being disciplined for her misconduct. SdR and TM also contradicted themselves. TM stated that she did not tell anyone that Zackey had kissed her because she thought no one would believe her. On the other hand, SdR stated that TM told her that Zackey kissed her. SdR said Lin was seated when Zackey touched her, but she then stood up. On the other hand, TM stated that Lin was always seated when Zackey touched her.
35. SdR did not dispute that she once said to Zackey in the classroom that “jy wil snaaks my wees - ek sal jou kry” (do you want to be funny with me – I will get you). This kind of behavior accords with the evidence led by LL, CS and RG about SdR’s demeanor that she was bossy and manipulative. SdR did not dispute that she once lied that she was pregnant and she even brought a sonar scan to substantiate her lies. She stated that young girls play about such things. I can safely conclude that the evidence that SdR and TM tendered in these proceedings was fabricated and malicious. Thus, it should be disregarded. Consequently, I conclude that there are no basis for charge 1 and 2.
36. On the allegation of the sexual remarks in the classroom during the English lesson, I also find this allegation absurd to say the least. It was evident that the literature that was prescribed for grade 10, “Romeo and Juliet and Mother to Mother” has sexual undertones. It was SdR’s testimony that these literatures were inappropriate for them as they were underage to be taught books like these. Even TM admitted that these literatures had sexual undertones. It was not disputed that Isaacs was the one who recommended the two set works for grade 10. I cannot imagine what would be expected of an educator when teaching these set works as they (the books) are marred with sexual overtones. I cannot for once believe that an educator would ask SdR and TM in class about their weekend escapades within earshot of all the other learners. As I have pronounced hereinabove about, the reliability of SdR and TM’s evidence, I again find that even on this charge, they are very economical with the truth. Thus, I exonerate Zackey of any wrong doing.
37. Lastly, there was no evidence that was presented before me that Zackey continued selling sweets after he was issued with a FWW. Griffiths and Isaacs confirmed that they never saw Zackey selling sweets after the FWW. The reason that this charge was resuscitated was because of the fabrications that SdR and TM told Isaacs after they were embroiled in a fight. I therefore conclude that Zackey did not continue selling sweets as alleged.
38. I find the Accused Employee, Mr Neil Zackey, Not guilty of all the charges that were preferred against him.
39. Following my not guilty finding, I order the Employer, the Gauteng Department of Education, to uplift Mr Neil Zackey’s precautionary suspension and to reinstate the terms and conditions of his employment contract prior to his precautionary suspension.
Arbitrator: Themba Manganyi