Case Number: PSES492-19/20GP
Applicant: VJ RAMASHIA, as represented by SADTU
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Misconduct
Venue: ELRC offices in Centurion.
Award Date: 8 April 2020
Arbitrator: Coen Havenga
IN THE EDUCATION LABOUR RELATIONS COUNCIL
In the INQUIRY BY ARBITRATOR between
DEPARTMENT OF EDUCTION – GAUTENG PROVINCE EMPLOYER
VJ RAMASHIA, as represented by SADTU EMPLOYEE
SECTION 188A IBA RULING
CASE NUMBER: PSES492-19/20GP
DATE OF INQUIRY: 13 March 2020
CLOSING ARGUMENTS RECEIVED ON: 29 March 2020
DATE AWARD SUBMITTED: 8 April 2020
NAME OF COMMISSIONER: Coen Havenga
Education Labour Relations Council
261 West Avenue
Tel: 012 663 0452
Fax: 012 643 1601
Details of hearing and representation
1. This process was set down in terms of section 188A of the Labour Relations Act 66 of 1995 as amended (hereafter “the LRA”). Both parties agreed and signed to have this dispute dealt with in terms of section 188A of the LRA. The inquiry took place on 13 March 2020 at the ELRC offices in Centurion.
2. The employer is the Gauteng Department of Education, represented by Mr Mogashane, S. The accused employee is Mr Ramashia, VJ (“Ramashia”), represented by Mr Mashishi, D, a SADTU official. Mr Seale, M acted as interpreter, and the intermediary was Ms Padi, M.
3. The employer submitted the documents in Exhibit A.
Issue to be decided
4. I am required to determine whether Ramashia is guilty of the charges levelled against him. Should I find him guilty of the charges, then I need to determine the appropriate sanction.
Background and charges
5. Ramashia is charged with two counts of misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998 (“EEA”), in that he during term 1 of 2019, while on duty at Hlomphanang Secondary School (“the School”), conducted himself in an improper, disgraceful or unacceptable manner by grabbing a grade 12 learner by her hands and instructing her to kiss her, and by slapping the same learner on her bum.
6. Ramashia pleaded not guilty to the charges.
Summary of evidence
7. The proceedings have been recorded digitally, and a summary of the Employer’s and Employee’s witnesses’ evidence follows below. What follows is only a summary of evidence deduced at the inquiry and does not purport to be a verbatim transcription of all the testimony given. The recording of the proceedings will reflect the complete testimony of the witnesses.
8. The matter relates to allegations of improper, disgraceful and unacceptable conduct towards a learner who was 19 years of age at the time of the alleged incident. Although the Constitution of the Republic of South Africa defines “children” as persons below the age of 18, I will, because she was still a learner at the time, in accordance with the protection of the rights of minors afforded them in the Constitution, in any case not disclose her identity in this award. I will refer to her as the Complainant. The Complainant elected to testify in open forum and did not want to make use of the available CCTV system at the ELRC’s offices in Centurion. The intermediary confirmed the request of the Complainant and was satisfied that she could testify in the manner she requested. The intermediary however did assist her during her testimony.
9. Frans Sabata Sekgota (“Sekgota”) testified under oath that he is the principal of the School. A1 reflects the report he sent to the Labour Unit Office of the Tshwane West District in respect of the allegation of sexual harassment of a leaner. He wrote in the letter that the Complainant’s parent on 2 April 2019 visited his office with allegations that an educator is harassing her daughter sexually. The parent reported that her daughter was troubled and was finding it hard to cope due to pressure from the educator. She reported that the educator is said to have asked her daughter to kiss him and touched her indecently on her back.
10. Ramashia is the HOD for Physical Science since 2015. Sekgota wrote A1 on the same day. The parent wanted the sexual advances at school to stop. Sekgota indicated to her that the Labour Unit will deal with the matter. Immediately after the alleged misconduct he received a complaint from Ramashia that the leaners in class was not listening to him, and that the Complainant was spreading rumours about him.
11. Under cross-examination Sekgota testified that he did not witness the alleged incident. The mother laid the complaint with him. The Complainant corroborated it in the presence of the mother. The mother came to his office between 9 and 10 am. The Complainant verbatim reported to him what is contained in paragraphs 2, 3 and 4 of A1. She reported to him that Ramashia touched her indecently on her back. Paragraph 1 is what the parent reported to him. Sekgota only reported the matter to the Labour Unit, he did not confront Ramashia with the allegations.
12. Winda Mongalo (“Mongalo”) testified under oath that she is the Complainant’s mother. The Complainant told her that there was a problem with an educator at the School who did not want to assist her. Mongalo went to the school to speak to the principal. She told the principal she was not sure why the Complainant wanted her to go and see him. The Complainant was called to his office. The Complainant then said that there was an educator who was making advances towards her, and he did not want to give her reports. The principal said he will report it to the district office. Mongalo expected the educator to be forgiven, and not loose his job. She also thought of calling the Complainant’s uncles to come and sort out the educator.
13. Under cross-examination Mongalo testified that she heard about the allegations for the first time when she was in the office of the principal. The Complainant never said anything to her at home. When she arrived at the principal’s office, she told him that she did not know why the Complainant wanted her to go and see him, and that she was going to hear what it was when the Complainant came to the office. She agreed that what is contained in paragraph 1 of A1, is what she said. She then also testified that her version given in her evidence in chief was also correct. When asked which of the two contradictory version were the correct one, she answered “both”. It was then put to her that she therefore knew about the alleged harassment before she went to the principal, and she answered “no”.
14. Katlego Ribombo (“Ribombo”), 20 years of age, testified under oath that the Complainant approached her in 2019. She told her that Ramashia came into the Life Sciences class to ask for books. The Complainant was left behind in the lab of Ramashia. The Complainant told her that Ramashia grabbed her by the hands and asked her to kiss him. The Complainant refused and broke free from his hold. Ramashia then slapped her on the bum. The Complainant told her the story while only the two of them were in the toilets during break. The Complainant was crying and said she was not being respected. Ribombo told her to tell her mother, but the Complainant said her mother might not believe her. She said it would be better to confront Ramashia and record the conversation.
15. The recording was made on 14 March 2019. Ribombo was present when the Complainant made the recording. The Complainant asked Ramashia why he did not want her to write the practical exam. Ramashia said he could not allow her to write as she disrespected him, and that she should show respect in class to other learners and to him. The Complainant again asked to be allowed to write the exam. Ramashia said he will not allow that, and the Complainant said she will report him to the office. Ramashia said he was not afraid and that she can even go to district.
16. Under cross-examination Ribombo testified that during the recorded conversation with Ramashia she agreed with him that the Complainant should not be allowed to write the practical exam.
17. The Complainant, 20 years of age, testified under oath that she was in grade 12 in 2019. Ramashia was her teacher. During Life Sciences class on 13 March 2019 he came to the lab to request her book, and those of Tebogo and another learner. He told them to bring it to him. When she went to him they were alone. He grabbed her by both hands and asked her to kiss him. She managed to escape, and he slapped her on the bum. She ran to the lab and felt dirty and confused. She went with Ribombo to the toilet and told her what happened. Ribombo told her to tell her mother, but she did not have evidence.
18. The Complainant refused to kiss Ramashia. She saw him as a parent and the school as a safe environment. She felt disrespected. It took some time before she could tell her mother. She only told her mother some days after Ramashia denied her to write the practical exam. She had to go outside the classroom when she wanted to talk to Phindile. Ramashia wanted to have an affair with her since she came into the school in 2016. He would tell her to tell her boyfriend that she was his wife. She threatened him with her brothers hoping it would make him stop. She expected he would apologise when she made the recording. She has nothing against Ramashia and did not fabricate her version.
19. Under cross-examination the Complainant testified that Ramashia started teaching her in 2019 in grade 12. She used to go out of the classroom a lot. She agrees that it is a sign of disrespect on her side. She reported the alleged harassment after Ramashia refused to allow her to write the practical exam. She only reported it when her mother came to see the principal. On 13 March 2019 she told only Ribombo. On 14 March 2019 she made the recording. She did not write the practical exam because Ramashia would not allow her. The whole case is the result of her not being allowed to write the practical exam.
20. The Complainant has forgiven Ramashia as she is no longer a learner. They called her to the office when her mother came to school. Her mother came to the school to ask why the Complainant was not allowed to write the practical exam. The Complainant then only told her mother that Ramashia did those things. She told the principal, not her mother. She used to make funny faces when Ramashia was speaking in class. He told her to leave the classroom, but she refused. She agrees that she was disrespectful when she did that.
21. She broke free when Ramashia asked her to kiss him. She ran to the Life Sciences lab. Mr Machile was there, but she did not tell him what happened. Ramashia did tell her to go to the district if she wanted to report him. She reported to her parents that she was not allowed to write the practical exam. She agrees that it was not the correct thing to tell Ramashia that her brother will get him. She agrees that it was a threat.
22. Vonani Japhta Ramashia, the employee, testified under oath that he did not grab the Complainant and instructed her to kiss him, and he did not slap her on the bum. During the task preparation for the practical exam he asked the learners to be in class at 14:45pm at the latest, to allow enough time for the exam. On 13 March 2019 all learners were seated at 14:45pm, and the papers were handed out. They started writing, and at 15:15 the Complainant came running into class. She requested an exam paper. The other learners started to make a noise, and he told them that if they continued, he would take the exam papers back and that they will only write the next term. The Complainant interjected said he called them bitches, which he did not do. The Complainant started to talk loudly. The other learners confirmed he did not call them bitches.
23. The learners then continued to write the exam. The Complainant was trying to get the answers from other learners. Ramashia told her that if she did not keep quiet, he would take her paper. She said that she would not allow that and that she had a right to write the exam. Ramashia told her that she did not have such right if she was compromising the other learners. She ignored him and continued to talk and ask questions. He approached her table and took her paper from her, because she came late and was causing a disruption. He told her that she will be allowed to write on a later day together with the learners that were absent that day. Some learners did not finish in time, and he gave them opportunity to finish the next day.
24. He was in his office when the Complainant and Ribombo came to him. The Complainant requested to write as well. He told her that she knew she had to apologise to him and the other learners for being disrespectful the previous day. That was the practice in the class. The Complainant said he instructed her to kiss him, and slapped her bum, which he did not do. He told her that she was mad. She grabbed an umbrella with the intention to use it on him. He told her to put it down. She threatened him with her brother who came out of prison recently. She said he would deal with Ramashia if he did not allow her to write the exam. She was very angry. Ramashia advised her to report the matter to the district. They left.
25. Later he was informed that Mr Mogoshane from the district was investigating the matter. Everybody was aware of the investigation except him. The leaners were listening to the recording in the corridors. He told Mogoshane that he was not happy with the way it was done. A20 reflects the threatening remarks made by the Complainant during the recorded conversation. There were no learners who brought books to him, all of them were writing the exam. He has 10 years’ experience and teaches Physical Science and Mathematics.
26. Under cross-examination Ramashia testified that his version was not put to the witnesses because they contradicted themselves in a major way. Anyone could see they were wrong. He even advised the Complainant to go to the district. He even advised Mogoshane of the existence of the recorded conversation. Why would he do that if he was guilty? He stopped her from writing the exam so as not to disrupt and prejudice the rest of the 84 learners who were writing. The Complainant fabricated the allegations. She said that she will get him because he refused to allow her to write the exam when she wanted to.
Summary of arguments
27. Both parties submitted extensive written closing arguments which form part of the record and will not be repeated here. The employer argues that Ramashia should be found guilty and be dismissed due to the serious nature of the allegations. The employee argues that he is not guilty and should be acquitted on both charges.
Analysis of evidence and argument
28. I have considered all the arguments, legal principles and case law referred to by the parties, together with the other evidence, oral and documentary, presented by the parties during the inquiry, as reflected in the recording of the inquiry.
29. This inquiry was conducted in terms of the provisions of Collective Agreement 3 of 2018, the principles contained in section 188A and Schedule 8 of the LRA, as well as the principles contained in Schedule 2: Disciplinary Code and Procedures for Educators, promulgated in terms of the Employment of Educators Act, no. 76 of 1998 in respect of the fairness of disciplinary action. In applying those principles, the following factors were considered:
a) Whether or not the accused employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
b) If the rule or standard was contravened, whether or not –
i. The rule was a valid or reasonable rule or standard;
ii. The accused employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
iii. The employer has consistently applied the rule or standard.
iv. Dismissal would be an appropriate sanction for the contravention of the rule or standard.
30. The LRA does not prescribe the standard of proof to be used in labour matters. It is however universally accepted that the standard of proof that is applicable in disciplinary hearings, and therefore inquiries by arbitrators of this nature is identical to the civil standard – “the employer must prove the case against the employee on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1.
31. All the allegations in the charges against the employee, as well as the evidence, documentary and otherwise, deduced in support thereof by the employer, and the evidence deduced by the employee in defense, were considered and weighed against the abovementioned standard of proof.
32. It is not disputed by the employee that the actions he had been charged with constitute misconduct. The employee merely denies committing such misconduct, i.e. that he conducted himself in an improper, disgraceful or unacceptable manner by grabbing a grade 12 learner by her hands and instructing her to kiss her, and by slapping the same learner on her bum. .
33. I am mindful of the fact that although Ramashia is charged with improper, disgraceful and unacceptable conduct, that the alleged actions of instructing the Complainant to kiss him, and slapping her on her bum, could have a clear and obvious sexual misconduct connotation. It is a natural response in matters relating to the sexual harassment, assault or abuse of children that the reasonable person might view such conduct with disgust and revulsion. This is even more applicable where a trust relationship is abused. As arbitrator one should however be conscious of the need to not to prejudge but to objectively consider the facts of the matter on a balance of probabilities and credibility of the evidence adduced.
34. In respect of the allegations of kissing the Complainant, there is only direct evidence of two witnesses, i.e. the Complainant and the employee. The employee disputes the version of the Complainant, and denies any wrongdoing, and I must decide on a balance of probabilities which version to accept. It is also important to note that the Complainant was 19 years old at the time of the alleged incident, and 20 years of age at the time that she testified. She appeared comfortable and relaxed during her testimony, to the extent that she requested not to testify through the CCTV system.
35. Ramashia’s defense in respect of the allegation is not only a blanket denial of any wrongdoing, but he testified that the Complainant fabricated the allegations because she wanted to get back at him for not allowing her to write the practical exam. It is not in dispute that the Complainant was not allowed to write the practical exam with the other learners. It is also not in dispute that she was upset about being not allowed to write the exam. It also clear from the evidence that there was unhappiness at home because she did not write the exam, and that it resulted in her mother going to the principal to enquire why she was not allowed to write.
36. It is in this regard that the first material discrepancy appeared in the employer’s case. The principal testified that the mother came to his office with the allegations that Ramashia was harassing her daughter sexually. However, the testimony of the mother is that she had no idea why she had to go to the school, apart from the Complainant telling her that Ramashia did not want to assist her. She testified that she told the principal that she did not know why the Complainant asked her to go see him, which contradicts the principal’s testimony. She testified that she heard about the allegations of sexual harassment for the first time in the office of the principal, and that the Complainant told her nothing about that at home. The Complainant indeed confirmed in her evidence that her mother went to the school to find out why she was not allowed to write the practical exam. The mother then went on to contradict herself in a serious manner in trying to submit that both versions are correct. I therefore accept on a balance of probabilities that the Complainant did not report the alleged sexual harassment to her mother at home. A further contradiction in the employer’s case relates to whether the Complainant was slapped on her bum, or her back. The Complainant testified that Ramashia slapped her on her bum. The principal however testified that he recorded verbatim what the Complainant told him, and that is that Ramashia touched her indecently on her back.
37. The alleged harassment took place on 13 March 2019, but it was only reported to the Complainant’s mother and the principal in his office on 2 April 2019. It begs the question that if the Complainant was so upset, why did she not report it earlier. She also had the opportunity to report it to Mr Mashile directly after it happened, but she did not. Instead, she decided to confront her alleged abuser and record him. I find it improbable that a learner who has just been sexually harassed, would rather go and confront her abuser instead of reporting it to the principal. It is also clear from the transcript of that recording that the main focus was in fact to try and get Ramashia to allow her to take the practical exam. The Complainant went to the lengths of threatening Ramashia with physical harm, should he not accede to her demand to write the exam. The Complainant admits to being disrespectful and disruptive in class, that she used to go out of the classroom a lot, and that she made funny faces at Ramashia when he was talking in class. This admission lends credibility to Ramashia’s version that he was justified to refuse her to write the exam, and that his refusal led to the Complaint taking revenge by falsely accusing him of sexual harassment. Considering the fact that the Complainant went so far as to threaten Ramashia with physical harm should he not allow her to write the exam, I find it probable possible that she could fabricate allegations of sexual harassment in order to get revenge. Ramashia in fact advised the Complainant to take her unhappiness to the district, and also told the official from the district office about the existence of the recorded conversation. I find it highly improbable that he would do that if he was guilty of the allegations and wanted to hide it.
38. Where there are two conflicting versions of the facts the arbitrator should weigh up each version considering all relevant factors. I must consider the evidence of the witnesses to determine which version is more probable in the circumstances and should be accepted as a true reflection of the events that occurred.
39. The risk of false incrimination in sexual cases is addressed in Hoffman and Zeffert, The South African Law of Evidence, 4th Edition, Butterworths, 1992, as follows: “Corroboration is the most satisfactory indication that the Complainant is truthful, but false evidence by the accused or his failure to testify may also be taken into account, as may any other feature of the case which shows that the Complainant’s evidence is reliable and that of the accused false.”. The employer’s case and the Complainant’s version displays several material contradictions, discrepancies and improbabilities. I find that there is a probable and plausible reason for the Complainant to fabricate the allegations of sexual misconduct. I accept the evidence of Ramashia on a balance of probabilities.
40. I find that the employer did not prove on balance of probabilities that Ramashia, during term 1 of 2019, while on duty at Hlomphanang Secondary School, conducted himself in an improper, disgraceful or unacceptable manner by grabbing a grade 12 learner by her hands and instructing her to kiss her, and by slapping the same learner on her bum.
Finding and award
41. The accused employee, Mr Ramashia, VJ, is found not guilty of both the charges of contravening section 18(1)(q) of the EEA.
42. In terms of section 188A(9) of the LRA I direct the employer to reinstate the employee, Mr Ramashia, VJ, in his position with retrospective effect to the date of his suspension, on terms no less favourable than those applicable at the time of his suspension and without forfeiture of any benefits which would have accrued to him but for the suspension.