Case Number: PSES-757-18/19EC
Province: Eastern Cape
Applicant: S QUBUDA
Respondent: HOD, Department of Eastern Cape
Issue: Unfair Dismissal - Misconduct
Venue: Keiskammahoek Magistrate’s Court
Award Date: 25 August 2020
Arbitrator: M HUBER
IN THE EDUCATION LABOUR RELATIONS COUNCIL INQUIRY BY ARBITRATOR HEARING HELD AT KEISKAMMAHOEK
CASE NUMBER PSES-757-18/19EC
In the section 188A Inquiry by Arbitrator hearing between
HOD, Department of Eastern Cape
APPLICANT / EMPLOYER
S QUBUDA RESPONDENT / EMPLOYEE
SECTION 188A RULING ON SANCTION
Details of hearing and the ruling on the Verdict
1. This matter was conducted in terms of Section 188A of the Labour Relations Act, 66 of 1995 in terms of Collective Agreement 3 of 2018.
2. The Employer was represented by Mr. T Makina and Mrs. Gunguta from the Department of Education, and the Employee, Mr. Qubuda, was represented by Ntsiki Pakade Attorneys, specifically Mrs. Pakade and Mr. Yako. On the last day of the proceedings Mr. Qubuda represented himself.
3. The intermediary was Mrs. N Nxala and the interpreter was Mrs. V Gwija.
4. The matter was held at the Keiskammahoek Magistrate’s Court on 27 March 2019, 17 April 2019, 29 and 30 July 2019, 2 October 2019, 29 and 30 October 2019 and in the Employer’s Zwelitsha office on the 12th March 2020. The proceedings were all digitally recorded.
Ruling - verdict
5. A Ruling that the Educator had been found guilty of all allegations levelled against
him was made and conveyed to the parties on the 28th July 2020.
6. Mr. Qubuda was found guilty of all of the allegations made against him, as follows:
1.1 You contravened Section 17(1)(c) of the Employment of Educators Act, 76 of 1998 in that you Mr. Qubuda had a sexual relationship with a learner in your school that;
• You Mr. Qubuda in 2018 had a sexual relationship with SN (“Learner 2”) who is a learner at your school.
2.1 You contravened Section 17(1)(c) [SIC] of the Employment of Educators Act, 76 of 1998 in that you Mr. Qubuda committed an act of sexual assault on a learner in that on or about 01st June 2018;
• You Mr. Qubuda in 2018 forced yourself on ZB (“Learner 1”) and had sexual intercourse with her by forcing yourself.
5.1 You, Mr. Qubuda, contravened Section 18(1)(f) of the Employment of Educators Act, 76 of 1998, you unjustifiably prejudiced the administration, discipline or efficiency of the Department of Education and a school in that;
• You, Mr. Qubuda forced yourself on Learner 1 and had sexual intercourse with her.
Request for written submissions
7. The parties were instructed to provide written submissions, by 7 August 2020, as follows:
“Sanction – mitigation and aggravation
a. Mr. Makina should submit arguments regarding the appropriate sanction/s, with reference, where applicable / relevant, to legislative provisions, aggravating factors, Employer policies / practices and / or any relevant factors;
b. Mr. Qubuda should submit factors/ argument that should be considered in mitigation of sanction. These could include personal factors, length of service, disciplinary record, or any factors that would lessen the sanction.
Factors relating to Mr. Qubuda’s suitability to work with children
c. Section 120(1)(c) of the Children’s Act 38 of 2005 (“the Act”) provides that a finding that a person is unsuitable to work with children may be made by “any forum established or recognized by law in any disciplinary proceedings concerning the conduct of that person relating to a child”. Section 120(2) of the Act provides that a finding that a person is unsuitable to work with children may be made by such a forum on its own volition or on application by an organ of state or any other person having sufficient interest in the protection of children. The arbitrator may also make the finding on his/her own accord.
d. If Mr. Qubuda is found by this Forum to be unsuitable to work with children, this finding will be reported to the Director General of the Department of Social Development Services, who will then be required to enter Mr. Qubuda’s name in Part B of the National Child Protection Register. The effect of this would mean that Mr. Qubuda would not be permitted to be employed in any position where he would work with or have access to children.
e. Mr. Qubuda must include, in his written submission, reasons why he believes that he should not be found unsuitable to work with children, given the findings of this Forum that Mr. Qubuda has committed misconduct of a sexual nature against the children / learners in his care. Mr. Qubuda should particularly address the fact that he has, as an educator at a boarding school, been found guilty of the acts of misconduct relating to the children / learners he was entrusted with, knowing (or should be known) that an educator’s in loco parentis role creates a particular legal and moral duty of care, in which all educators, without exception, must act as a parent or a guardian would towards a learner.
f. These submissions should be clearly set out by Mr. Qubuda, apart from his submissions in mitigation of sanction.
Detail on submissions received
8. No written submission was received from the Educator by the 7th August 2020. The Ruling had been emailed to all of the parties, including Mr. Qubuda directly. Written submissions were received from the Employer on the 7th August 2020.
9. Emails were sent to the Educator to request that he make written submissions, and he responded on the 13th August 2020 requesting a postponement until the 19th August 2020 to make these submissions, which was agreed to.
10. No written submissions were however received from the Educator to date, being the 25th August 2020, and it is therefore accepted that he has decided to waive his right to make such submissions.
Arguments submitted by the Department of Education (the Applicant)
11. Mr. Qubuda has been found guilty of two allegations that have a mandatory sanction of dismissal attached to them and dismissal is therefore required for these two sanctions.
12. Mr. Qubuda did now acknowledge wrongfulness, and therefore remedial action in the form of rehabilitation would not have been appropriate.
13. Mr. Qubuda did not claim that he was ignorant of the standards that were being levelled against him, he understood them and knew that this conduct was prohibited.
14. Mr. Qubuda’s conduct during the hearing constituted denial of wrongdoing, no remorse, attempts to accuse others of conspiring against him, in the face on clear evidence against him construes conduct that warrants dismissal as a sanction.
15. The trust relationship between the employer and Mr. Qubuda has been broken, and he should also be found to be unsuitable to work with children in accordance with Section 120(1)(c) of the Children’s Act 38 of 2005.
Factors - Appropriate sanction
16. Mr. Qubuda is an educator, and during the course of the Inquiry proceedings he indicated that he was aware of his responsibilities towards the minor learners, and the learners who had reached the age of 18, in his care – which is an “in loco parentis role”. This role creates a particular legal and moral duty of care, in which all educators, without exception, must act as a parent or a guardian would towards a learner.
17. The institution that Mr. Qubuda works at is a boarding school, meaning that the learners were even more vulnerable to abuse, being away from the daily contact or oversight of their parents or guardians.
18. Mr. Qubuda has been found guilty of two charges involving sexual misconduct – one involving his having a sexual relationship with a learner at the school that he is employed, and the other involving his forcing himself onto a different learner, a minor at the time that this occurred, whereby he had sexual intercourse with her. He further sexually assaulted her through requesting that she kiss him and forcing this.
19. The two learners who were impacted by Mr. Qubuda’s conduct were clearly distressed – as seen during the proceedings.
20. Mr. Qubuda was unremorseful, dismissive of the two learners whose lives he has negatively impacted on, and arrogant. He displayed no accountability nor any consideration or concern for the wellbeing of the learners who had been in his care, who were required to give evidence against him, one of them gave evidence and was cross examined in total for almost 3 days.
21. He abused his position of power to take advantage of young female learners, he breached his fundamental duty as an educator, and it is clear that he cannot be trusted to continue to work as an educator, with children, aside from the fact that section 17 has a mandatory sanction of dismissal. He has shown through his conduct that he is not trustworthy, and throughout the proceedings he showed that he did not accept accountability for his actions, not did he display any appreciation for the wrongness of what he did.
22. Mr. Qubuda did not make any submissions regarding mitigation, despite being provided with two opportunities to do so. There are no mitigating factors that were evident during the course of the Inquiry, and whilst there is no evidence of any prior warnings, and the assumption is that he has a clean disciplinary record, this is irrelevant when weighed up against the extremely serious nature of the transgressions that he was found guilty of, and his conduct during the course of the hearing, particularly when he testified, which was referenced in the assessment of evidence.
23. Mr. Qubuda’s conduct is in direct contravention of the values and obligations prescribed by South African Council for Educators (SACE) “Code of Professional Ethics of Educators” (amended), which stipulates:
“Conduct: The Educator and the Learner
1. An Educator:
6. refrains from improper physical contact with learners;
7. promotes gender equality;
8. refrains from courting learners from any school;
9. refrains from any form of sexual harassment (physical or otherwise) of learners;
10. refrains from any form of sexual relationship with learners from any school;
24. Mr. Qubuda failed to uphold the Code of Professional Ethics to which he is bound. His conduct has brought the teaching profession into disrepute.
25. Section 28(2) of the Constitution of the Republic of South Africa, 1996 provides that a child’s best interests are of paramount importance in every matter concerning the child. The best interests of the child in this instance would be served only by the removal of this person from a position whereby he is able to commit further transgressions such as those he has already committed, against the children in his care.
26. Section 17 of the Employment of Educators Act applies to Charges 1 and 2 (my underlining):
“17. (1) An educator must be dismissed if he or she is found guilty of –
(b) committing an act of sexual assault on a learner, student or other employee;
(c) having a sexual relationship with a learner of the school where he or she is employed;
27. Section 18 of the Employment of Educators Act applies to Charge 5:
“18. (1) Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she –
(f) unjustifiably prejudices the administration, discipline or efficiency of the Department of Education, an office of the State or a school, further education and training institution or adult learning centre;
28. Taking into account the gravity of the transgressions, the legal provisions, the aggravating factors, and the breakdown in the trust relationship that the employer has with Mr. Qubuda, a dismissal with immediate effect is the only appropriate sanction, for each charge separately. Given the gravity of Charge 5 and the inevitable negative impact and prejudice caused by Mr. Qubuda’s actions on the administration and discipline of the school, St Matthews, this Charge warrants immediate dismissal on its own as well.
29. Mr. Qubuda was provided with an opportunity, which was extended to permit him a further opportunity, to submit reasons why he should not be found to be unsuitable to work with children, and he did not avail himself of this opportunity. His conduct constitutes a waiver of this right.
30. Mr. Qubuda’s conduct, specifically sexual misconduct against a child, the gravity of the conduct together with his abuse of his position of trust and power, his lack of accountability or remorse for this conduct, as well as the danger that he poses to children, warrant my finding that he is unsuitable to work with children.
31. The sanction for each of the Charges 1, 2 and 5 is dismissal with immediate effect. The Department of Education should inform Mr. Sibusiso Qubuda of his dismissal.
32. Mr Sibusiso Qubuda is found unsuitable to work with children in terms of Section 120(4) of the Children's Act.
33. The General Secretary of the ELRC should therefore, in terms of Section 122(1) of the Children's Act, notify the Director General: Department of Social Development in writing of the findings of this Forum made in terms of Section 120(4) of the Children's Act, that Mr Sibusiso Qubuda is unsuitable to work with children, and the Director General of Social Development should enter his name as contemplated in section 120 in part B of the National Child Protection Register (NCPR).
34. The ELRC is further directed to send a copy of the Ruling regarding the Verdict as well as this Ruling regarding the Sanction to the South African Council for Educators (SACE) for the revoking of Mr. Qubuda’s SACE certificate.
SIGNED AT MAKHANDA ON THIS 25th DAY OF AUGUST 2020.