Case Number: PSES665-19/20GP
Applicant: Shole T T S
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Misconduct
Venue: the ELRC National Office, 261 West Avenue, Centurion
Award Date: 14 July 2020
Arbitrator: Mathabo Makwela
Case Number: PSES665-19/20GP
Commissioner: Mathabo Makwela
Date of Award: 14 July 2020
In the Inquiry by Arbitrator Proceedings between
Shole T T S
Department of Education- GP
Alleged Offender’s representative: Kgosinkwe Mahuma
Alleged Offender’s address: 6812 Mandlakhayise Street
Employer’s representative: Nkateko Zitha
Employer’s address: Private Bag X7710
Telephone: 011 355 0461
Telefax: 011 355 046 6086
Details of parties and representation
1. The parties are Mr. T T S Shole (herein after “the employee””) and the Department of Education – Gauteng (herein after the “employer”)
2. This is an arbitration award pursuant to an inquiry by an arbitrator in terms of Section 188A of the Labour Relations Act 66 of 1995 (as amended) (the LRA) under the auspices of the Education Labour Relations Council (the ELRC).
3. The proceedings were held on 05 March 2020 at the ELRC National Office, 261 West Avenue, Centurion. The employee, Mr. T T S Shole, was in attendance and was represented by Mr. Kgosinkwe Mahuma while the employer was represented by Mr. Zitha Nkateko.
4. The employer submitted a bundle of documents which was marked Bundle R. The proceedings were digitally recorded and interpretation services were provided by Ms. S M Mohaube-Mahuma. At the conclusion of the proceedings it was agreed that parties will submit written closing arguments by no later than 12 March 2020.
Background to the dispute
5. On 22 October 2019, the employer requested an inquiry by an arbitrator to the ELRC against the alleged offender, Shole and the matter was set down for 05 March 2020. The alleged employee, a teacher, is alleged to have sexually harassed a learner at the Patrick Mashego Primary School, while she was doing Grade 7.The leaner is currently 15 years and attending Winifred Nomzamo Mandela High School.
6. The allegations against Shole are the following:
It is alleged that during November 2018, you committed an act of sexual misconduct in that you touched the breast and/or buttocks of PK, a leaner at Patrick Mashego Primary School.
In view of the above you are thus charged in terms of section 17(1) (b) of the Employment of Educators Act, Act 76 of 1998 as amended.
It is alleged that during November 2018, you intimidated PK, a leaner at Patrick Mashego Primary School by telling her that should she tell anyone that you touched her breast and/or buttocks, she will regret the day she was born.
In view of the above you are thus charged in terms of sections 18(1) (u) of the employment of Educators Act, Act 76 of 1998 as amended.”
7. On the other hand, Shole pleaded not guilty to the allegations levelled against him.
8. Due to the nature of the allegations, and the fact that the complainant was still a minor at the time when the alleged misconduct was committed, the identity of the complainant who testified during the proceedings will be protected and not revealed in this award.
Issue to be decided
9. The issue to be decided is whether Shole had committed the offence in question, and if so, what an appropriate sanction would be for commission of such offence.
Survey of parties’ evidence and arguments
The Employer’s case
PK’s evidence under oath:
10. PK testified that the incident occurred during November 2018 when Ms Segatlhe sent her to take books to the staff room. When she returned to the staff room Shole who was at the kitchen called her. She indeed went to the kitchen. She stood next to Shole who appeared as if he was making tea. Shole touched her breast and her buttocks; and told her that if she tells anyone what she did to her she will regret the day she was born.
11. She went back to her class. After a week or two she reported what Shole did to her, to her class teacher Ms Segathle. She took long to report the incident because she was afraid of Shole, as he threatened her. She decided to report the incident to Ms Segatlhe first because she was not feeling well about the issue.
12. When she got home she reported the incident to her grandmother. Her mother was not at home as she was attending a funeral. On Sunday when her mother returned she also informed her. On Monday her mother and father went to school to report the incident to the principal. Later, Shole came to her home to ask for forgiveness from her parents. In the evening her father went to open a case against Shole at the police station. The police officers came to her home to take a statement from her.
13. The incident made her to feel afraid. Before the incident the relationship he had with Shole was normal. She would greet him when they meet at school. After the incident they were writing exams and the school was about to close.
Under cross-examination PK testified that:
14. Ms Sekgatlhe was her class teacher in Grade 7. When the incident occur Shole was not her class teacher. Shole was her class teacher in Grade 5.
15. Every day Ms Sekgatlhe would send her to the staff room to return or pick up books. The staff room is next to the kitchen. Therefore, she would pass the kitchen when going to the staff room. She went to the kitchen when Shole called her and stood next to him, this is where Shole touched her.
16. After the incident occurred she went straight to her classroom and acted normal. This is because Shole had threatened her. She did not run away.
17. She said Shole went to her grandmother’s home to ask for forgiveness. Her grandmother does not stay far from her home. Her grandmother came with Shole to her home. However, Shole remained in his car outside their yard, while her grandmother came inside her home and informed her mother that Shole wanted to apologise. Her mother phoned her father that Shole wanted to apologise. Her father’s response was that he does not want to find Shole in his house. Her grandmother went outside to Shole and informed him that her parents did not want to talk to him.
Ms Germina Kefilwe Segatlhe (“Segatlhe”)’s evidence under oath:
18. She is an educator at Patrick Mashego Primary School. She was PK’s class teacher at Grade 7A. Shole is her colleague. Generally she had a good relationship with Shole.
19. During November 2018 PK would take stationery books to the staffroom in the morning and in the afternoon. On the day of the alleged harassment, she had requested PK to take back the books to the staffroom and PK did. A week later PK approached her before learners could write their EMS exam and informed her that she wanted to “report something to her” she quoted. She went outside with PK. PK informed her that when she took books to the staffroom she passed the kitchen and Shole was in the kitchen. When she returned from the staffroom Shole called her. She went to Shole in the kitchen and stood next to him. Shole whispered to her ear that she should not tell anybody otherwise she would regret the day she was born. Shole then started to touch her breast and buttocks. After that she left.
20. Where the staff room is located a person has to pass the kitchen and the toilets opposite the kitchen.
21. When PK reported the matter to her she was crying. PK informed her that she did not report the matter immediately after it occurred because she was afraid as Shole threatened her.
22. She reported the matter to the deputy principal Mr Mashova as the principal was not present when the matter was reported to her. Mr Mashovha wrote the report in the incident book.
Under cross-examination Segatlhe testified that:
23. The fact that Shole is a unionist, comrade and a member of SADTU does not have any effect on the execution of his duties. She is also a member of SADTU and she has 30 years’ of experience as a teacher. They were informed by SADTU that when a learner reports sexual harassment they should report the matter to the police. She reported the matter to the principal according to the schools practice. She is a credible witness. She does not think that PK could lie. She maintained that when PK reported the matter she was crying. She also maintained that PK informed her that Shole threatened her.
Mr Nditshei Hysen Matshovha (“Matshovha”)’s evidence under oath:
24. He is the Deputy Principal of Patrick Mashego Primary School. He has 15 years of service. During November 2018 Ms Segatlhe came to him to report an alleged incident that was reported to her by the learner, PK who was in Grade 7A. She advised Segatlhe to write the report down. He also advised Ms Segatlhe not to communicate the matter with anyone until the matter was reported to the principal. He also did not want PK to be prejudiced.
25. He was out of the office when the matter was reported to the principal. All the incidents that occur at school are written down in the occurrence book. Ms Segatlhe was informed by PK that she was harassed by Shole.
26. Under cross examination he confirmed that he was not present at the scene of the incident as he was in his office. A hearsay matter remains hearsay until it is tested
Lerato Khule (Khule)’s evidence under oath:
27. She is PK’s mother. She was informed that PK was sent to the staff room to drop a book. On her way to the kitchen PK was called by Shole. Shole then touched PK’s breast and buttocks. Shole informed her that should she tell anyone about what he did to her, she will regret the day she was born. PK informed her about the incident. PK was crying when she was relaying the story about what happened to her at school. She then approached the principal about the incident. The principal decided to take the matter further.
28. She received a call from Shole during the day after they had reported the matter to the principal. She lied to Shole that she was at church in Kagiso whereas she was at home. At around 18h00 her mother came with Shole to her home. Shole remained in his vehicle while her mother entered the house. Her mother informed her that Shole wanted to apologize about the incident involving PK. She then called PK’s father. The father indicated that he was almost at home and does not want to find Shole at home as he does not want to take the law into his own hands. They went to the Police after PK’s father arrived at home.
29. The incident involving PK negatively affected her to such an extent that her school results of 2018 were low.
The employee’s case
The employee, Tebogo Shole (Shole)’s evidence under oath:
30. He is a teacher at Patrick Mashego Primary School. He has been there from 2009. He is familiar with the code of conduct of the school and other legislations governing schools. He was called by the principal of the school and was asked whether he knew the learner by the name of PK. He confirmed him that he knew PK. The principal also told him that PK’s parents were at school and alleged that he acted inappropriately towards PK. It was alleged that he touched PK’s buttocks and breast and that he told her that should she tell anyone about the incident, then she will regret the day she was born.
31. After school he went to look for PK’s home. This is after he was given a hint by other learners of where PK was staying. He went to Read Valley Ext 2 and asked where PK was staying. He was directed to PK’s grandparent’s home and found PK’s grandfather. He was then given the cell phone number of PK’s mother.
32. He called PK’s mother and she informed him that she was not at home. PK’s mother later did not answer his calls or her phone was on voicemail. He then decided to go back to PK’s grandparents’ house. He found both the grandparents. He informed them that he received a letter from school that he committed an offence against PK. The grandparents informed him that PK’s parents are staying at Swanneville. He then asked the grandmother to accompany him to the home of PK’s parents.
33. He informed PK’s grandmother while they were on their way to Swanneville that he does not remember touching PK’s buttocks and that if it happened it was a mistake. He wanted to find out from PK’s parents why they went to report him at school. When they arrived at Swanneville, the grandmother went inside the house for a few minutes. She later came out of the house with PK’s mother. PK’s mother was shouting and talking to her mother that if PK’s father comes home and find him there, it will not be pleasing. He then left her mother there.
34. The following day he reported the matter to SADTU his union. The union drafted the letter to the school to establish if there is any other evidence that the school could produce to show that he committed the misconduct. During 2019 Mr Zitha informed him that he should attend the inquiry. The police investigated the matter before the inquiry. He went to the police officers who are dealing with sexual assault cases. He had a conflict with the police and was arrested. He was released after two days.
35. Later on a police officer arrived at school and handed him a subpoena to appear in court on a specific date. He attended the Court and the matter is still not yet finalized up until today. He denied that he touched PK as alleged. He was never alone with PK as alleged. He went to PK’s home to get information as to why they alleged that he harassed her. He did not know PK’s parents before the incident. He does not recall calling PK to the kitchen.
36. Under cross examination, Shole confirmed that he never touched PK’s buttocks. He also confirmed that he is familiar with how he should conduct himself as an educator. When he was PK’s class teacher in Grade 5, he does not remember PK lying. He does not know why PK would say he touched her. He went to PK’s home twice on the same day. He attempted to talk to PK’s mother about three times in one day. He denied that he went to PK’s parent’s home to apologize. He confirmed that he was arrested by the police on the allegations of sexual harassment towards PK.
ANALYSIS OF EVIDENCE AND ARGUMENTS
37. The employer has requested an inquiry by an arbitrator in terms of Section 188A of the LRA with an allegation against the employee that he had committed an offence of sexually harassing a learner. The employer bears the onus to prove that the employee has committed the offence that had been proffered against him. The allegation against the employee was that he touched the breasts /and or buttocks of PK, a learner at Patrick Mashego Primary School.
38. Sexual harassment is an unwelcome conduct of a sexual nature and includes physical, verbal or non-verbal conduct. Physical conduct of a sexual nature includes all unwelcome physical contact ranging from touching to sexual assault and rape as well as strip search by or in the presence of the opposite sex.
39. Section 17(1)(b) of the Employment of Educators Act, No 76 of 1998 (herein after the “EEA”) regulates misconduct of a sexual assault towards learners by educators . The misconduct in section 17(1)(b) is committed when an educator sexually assaults any child who is a learner at any school; It is not confined to a learner of the school where the educator is employed. The elements of sexual assault are (a) conduct of a sexual nature (b) which results in the victim's sexual integrity being impaired (or inspiring the belief that it will be impaired) (c) unlawfulness — meaning that there must not be a justification ground for the action, such as for example consent by the victim (d) intention to commit the misconduct — in other words accidental unintentional bodily contact is excluded from the definition. Misconduct of a sexual nature that does not constitute misconduct in terms of section 17, would generally constitute misconduct in terms of section 18. Examples may include kissing a learner with her consent, proposing love to a learner, having a sexual relationship with a learner of another school, grooming a learner.
40. The employee, Shole pleaded not guilty to the allegations levelled against him. However, Shole was not a credible witness. He could not provide a satisfactory evidence as to why before he approached his own trade union, he went to PK’s parent’s home. His evidence that he went to the home of PK’s parents because he wanted to find out why he was reported to school is with respect rejected. The balance of probabilities clearly shows that he went to the house of PK’s parent to apologize for his sexual misconduct. He knew what he did was wrong and he wanted to make amends.
41. It is also not clear why Shole was so desperate to contact PK’s parents after the parents reported to the school. If his intention was not to apologize, he would not have contacted PK’s mother‘s three times in a day and went twice to the family home. A reasonable person in Shole’s position who has a union, would not have went to such great lengths in order to get hold of the learner’s parents. He went to such desperate measures because he wanted to get his hands clean and apologize. Unfortunately for him, the apology was not accepted by the parents.
42. The evidence of the employer’s witnesses was credible and satisfactory. There was nothing in my mind which made me doubt their evidence.
43. PK, a young learner which was a victim of sexual misconduct by Shole, a teacher, was an impressive witnesses. She spoke clearly about what happened. There was no basis as to why she could have falsified the evidence against Shole. In fact, Shole under cross examination confirmed that when she was PK’s teacher in Grade 5, PK never lied. There is therefore no reason why would PK lie now when she appears to be a learner who is not prone to telling lies. The evidence of Ms Khule is accepted as the most probable.
44. In the premises I find that Shole had committed the misconduct of sexual assault in terms of section17 (1)(b) of the EEA by touching the breast and buttocks of PK; another misconduct in terms of section 18(1)(u) of the EEA by intimidating and victimizing a learner. The inappropriate sexual conduct of Shole was physical and he further intimidated or victimized the learner. This offences are very serious in all respects especially in the school environment involving teachers who are adults and learners who are minors and mostly underage. These offences have serious implications for the learner’ learning environment which may have detrimental effects on the learner and thus affecting her learning and well-being as both a learner and human being. Sexual assault and or harassment leaves deep scars and an employer in the learning environment cannot be expected to put up with an employee who sexually assaults learners. Sexual assault destroys the employment relationship irretrievably. Also, the Constitutional court has held that section 28(2) of the Constitution imposes an obligation on all 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 the life of the child who is the victim of sexual misconduct, but also the lives of learners in general who have a right to be protected against sexual abuse from educators. I therefore, find that the appropriate sanction for such misconduct is dismissal.
45. Shole had committed the following misconducts:
- Acts of sexual assault in terms of section 17(1)(b) of the Employment of Educators Act, No 76 of 1998; and
- Misconduct of intimidation and victimisation in terms of section 18(1)(u) of the Employment of Educators Act, No 76 of 1998 against a girl child learner, PK .
46. Mr. T T S Shole’s employment with the employer is to be terminated with effect from the date of this award.
47. The ELRC is directed to provide the copy of the award to the South African Council of Educators (SACE) for the deregistration of Mr. T T S Shole as an educator.
Commissioner: Mathabo Makwela