Case Number: ELRC1096-19/20WC
Province: Western Cape
Applicant: THOZAMILE KONCO
Respondent: Department of Education Western Cape
Issue: Unfair Dismissal - Misconduct
Award Date: 18 September 2020
Arbitrator: Gail McEwan
Commissioner: Gail McEwan
Case No.: ELRC1096-19/20WC
Date of Award: 18 September 2020
SECTION 188A INQUIRY
THE DEPARTMENT OF EDUCATION WESTERN CAPE
Union/Employee’s representative: Thozamile Konco
Union/Employee’s address: D373 Nonqause Street
Telephone: 021388 5539 / 078 489 1830
Employer’s representative: Kaizer Mbobo
Employer’s address: Private Bag X9114
Telephone: 021 467 237
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
(1) This matter was referred to the Education Labour Relations Council in terms of section 188A of the Labour Relations Act 66 of 1995 (LRA) as amended and was heard on 15 September 2020 virtually via zoom with the consent of the parties. The request for an inquiry by an arbitrator was made on the prescribed form. The employer handed in a bundle of documents electronically and arbitration was digitally recorded. Doris Xego was present as an intermediary. In terms of a Collective agreement it was agreed that the use of intermediaries is compulsory when a child gives evidence in cases involving misconduct of a sexual nature. Written permission had been obtained from the parents of the minor children to testify. It was agreed that to protect the identity of the children they would only be referred to by numerals. Also present was Qonisa Bongela the district social worker and Lulama Mekhazni was present as a Xhosa interpreter.
(2) The Department of Education was represented by Kaizer Mbobo (Labour Relations Officer). Thozamile Konco (the employee) was absent despite having been advised of this inquiry by email and text messages. We also placed a phone call to his wife who informed us that she too did not know where Konco was residing or where he could be located.
(3) The purpose of this enquiry is to determine whether Konco is guilty or not guilty on the following charges and if found guilty on a balance of probabilities to impose the appropriate sanction:-
(i) It is alleged that you are guilty of misconduct in terms of section 17 (1) (b) of the Employment of Educators Act No. 76 of 1998 (the Act) in that during the first term of 2020 you committed an act of sexual assault on grade 6 learners at Nolungile Primary School by: (a) Touching and/or pressing their breasts and/or (b) touching and/or smacking their buttocks with your hand and/or touching and/or grabbing them on their waists with your hands. In the alternative: It is alleged that you are guilty of misconduct in terms of section 18 (1) (q) of the Act in that during the first term of 2020, while on duty, you conducted yourself in an improper, disgraceful or unacceptable manner, in that you sexually harassed grade 6 learners of Nolungile Primary School by (a) touching and/or pressing their breasts and/or (b) touching and/or smacking their buttocks with your hand and/or touching and/or grabbing them on their waists with your hands.
(ii) It is alleged that you are guilty of misconduct in terms of section 18 (1) (q) in that during the first term of 2020 while on duty you conducted yourself in an improper, disgraceful or unacceptable manner, in that you sexually harassed grade 6 learners of Nolungile Primary School by requesting them and/or asking them to: kiss you and/or (b) be your girlfriend(s): and/or (c) requesting them to invite you on Facebook; and/or (d) inviting them to go out with you for a lunch; and/or (e) if she has breasts of ribs; and/or (f) referring to one of them as “isidala sakho” translated as your ex-girlfriend.
(4) I have considered all the evidence and argument, but because the LRA requires brief reasons (section 138(7)), I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute.
THE BACKGROUND TO THE DISPUTE
(5) Konco started working for the employer on 25 May 2003; worked as an educator teaching grade 6 and earned R24 771.75 per month
SUMMARY OF EVIDENCE AND ARGUMENT
The employer’s version and testimony was as follows:-
(6) Buyiswa Somagana (acting deputy principal) testified that she does the administration work; is the first delegation when the principal is not available; assists with the smooth running of the school and co-ordinates disciplinary hearings. Somagana had been in this post for two years. Konco is a grade 6 educator and teaches natural sciences. Somagana is aware of the charges against Konco and became aware when told by the principal as soon as this matter came to his attention. A total of eight learners were involved. The principal had been told that Konco forced the leaners to kiss him, had been touching /squeezing their breasts by running his hands over their nipples, hugged them around the waist and asked some to be his girlfriend. Konco had wanted to visit some at their homes and he had touched their buttocks. The principal had revealed this at a meeting of the schools’ senior management. Everyone was shocked about this and worried about the learner’s safety as well as the reputation of the school. It had been important to determine who had been involved. The names of the learners were confirmed and Konco was confronted. Konco explained that he had only been playing with the learners and was very sorry for what he had done. The learners were deeply disturbed, cried a lot and the matter was then taken further by the School Management team (SMT). Konco never denied anything but insisted that he had been joking with the learners. It is well known that educators may not touch learners, all children at school must be kept safe and to have been treated this way was degrading to the learners. Somagana could not trust Konco again to be a good educator. It is not possible to teach disturbed learners and for all the learners their safety came first. Somagana would not appoint Konco as an educator as it was not safe to put children into his care. Somagana believed that Konco should be dismissed for the sake of the learners, parents, community and the school. The principal was not available to testify today as she was busy with a pressing personal matter.
(7) Thembi Ngonza (educator with nine years’ experience) testified that she started at Nolungile Primary School in 2019. Konco taught grade 6 natural and social sciences. Ngonza became aware of this situation after school had opened and after a break when she was walking back to her grade 5 class. Learners 1 and 2 approached Ngonza and they were crying. Ngonza had tried to comfort and console them and another educator Ms. Ms. Noyande Rawu (educator grade 6) came over and asked what was wrong. Ngonza explained that she was about to find out. Learner 1 said that she was sitting at her desk during a class when Konco came, removed her bag from her seat and then sat next to her. Konco then began feeling her buttocks. Learner 1 asked what he was doing and Konco kept moving closer to her. Others in the class became alarmed and asked what Konco was doing. Konco then got up and went to sit at his own desk at the front of the room. By that time learner 1 was crying. Rawu told the learners not to tell anyone what had happened and that the educators would deal with the matter. Rawu called Konco and explained what the learners were saying about him. Konco said he was very sorry but had only been playing with them. At the time the principal was in a meeting so Ngonza reported the matter to him early the next day. Another learner had complained that Konco had touched her breasts when she went to hand in her book to be marked. Ngonza had told the learners what to do and she reported the matter to the principal. The next week on Monday 27 January 2020 Ngonza was approached by Zoleka Mbulawa (educator of grade 1 and also a deputy principal) to advise that the learners came to her on the Friday to report the incidents and the matter had been escalated to the principal. Learner 8 used to be a class representative, did the on line absenteeism and is talkative and had brought this matter to their attention with those learners involved. Senior management had met and tried to call in Konco but he had not been present. Later Konco came in and said he was sorry but never denied anything that the learners had reported. The learners were still emotional and tearful and had clearly been badly affected by what had happened. Learner 4 had never returned to the school after the lock down period. Her parents were phoned and the school was told that their daughter was too afraid to go back to the same school. This was the second time this learner had been assaulted this year which is why the family had moved to Cape Town. The parents were told that Konco was not present and that educators were not permitted to touch learners inappropriately. Ngonza could not trust Konco with learners again and would not employ him at any school. It was evident that the learners were not safe when Konco was around. Ngonza felt that Konco should be dismissed.
(8) Five of the eight learners involved testified. All the learners came in looking brave and once they got into their testimony they became very emotional and tearful. Learner 1 is fourteen years’ old. Learner 1 was at her desk when Konco came to sit beside her and started touching her buttocks. Konco was asked what he was doing but he just moved closer to the learner. His hands went around her waist and then moved to her buttocks which he bunched up with his fingers. Learner 1 got up and left while Konco sat and played with his phone pretending that he could not see learner 1. Later learner 1 had to hand in her work and Konco asked for her home address so that he could visit her. Learner 1 was not on Facebook so Konco could not connect with her through that medium. Konco was told that he could not visit that learner. Some other educators arrived and Konco asked learner 1 why she was crying. Learner 1 was moved to a different class and the entire class said that she should report the matter to Mr. Montale. Montale had called learner 1 and Konco to hear what had happened. Konco said he knew that what he had done was wrong and apologized. The incident happened before home time and learner 1 with a friend was still crying. Learner 1 was advised to tell Ngonza what had happened. Rawu had been told what happened and she had said not to tell anyone as she would be dealing with the matter. Learner 1 went back to her class and Ms. Zolega (educator) asked what had happened. Learner 1 told her everything and was then taken back to the office and again was asked what happened. Learner 1 explained that after having been touched she was hurt and disappointed plus she was fearful of going back to school. Educators must not touch learners and sit on the same seat with them. Konco had only done this to learner 1 in front of everyone. Learner 1 is scared of Konco and if he returns to her school she will drop out. It was believed that Konco should be expelled as he did not act like a parent. Learner 1 was too scared to tell her parents and then the school contacted them so they knew what happened.
(9) Learner 3 is thirteen years’ old and is in grade 6. Konco had squeezed her breast painfully and this happened once. She was at her desk on 16 January 2020 and went to the front desk to hand in her work to be marked by Konco. Konco had reached out, grabbed her breast then squeezed so hard it had hurt. Konco had asked if her breasts were real or if there was only a nipple. Learner 3 said only a nipple and had lied about her age saying she was only eleven years old. After that learner 3 was scared of Konco and educators should not be doing things like that. Learner 3 only told Ngonza and her mother. She saw Konco touching learner 4 on her breasts much the same as Konco had done to her. It was not safe to be around Konco and if he remains at the school then learner 3 would leave. Konco must leave the community and be expelled.
(10) Learner 4 is twelve years old and is in grade 6. She testified that Konco teaches natural sciences and technology plus geography. Learner 4 was writing geography and went to hand in her book. Konco marked one or two questions then touched her breasts very painfully. She jumped back and asked what he was doing twice. Konco never answered so she went back to her desk. Her breasts were very sore and Konco is not allowed to do that to her. Educators are not allowed to touch learners. Learner 4 never saw Konco doing this to anyone else and would like Konco to be expelled plus to be put in jail. Others had also complained about Konco touching them.
(11) Learner 6 is twelve years’ old and is in grade 6. It happened after break when she was standing ready to submit her work. Her hand was resting on the table. Konco started feeling her buttocks and she turned round to see what he was doing when he then grabbed her breasts. Learner 6 told Konco to stop as she did not like him touching her and then Konco leaned forward and tried to kiss her. She pulled away and he asked where she lived so he could visit her. Learner 6 said Konco could not do that. Konco asked her to be his wife and to marry him. Afterwards she felt scared and told her mother she will not be going back to school. Her mother had forced her to return. All the learners involved went together to report these things and were initially told they are causing big drama at the school around Konco. Konco is not allowed to touch learners and no sexual relationships are allowed. Learner 6 told her mother what had happened. There had been a second incident when Konco had touched and squeezed her breasts. Konco must be arrested and expelled.
(12) Learner 8 is twelve years’ old and is in grade 6. Other learners told her what Konco had done to them. Konco is abusive and touches breasts and buttocks of female learners. She had seen some of the incidents especially that which happened to learner 1. Konco touched her waist, buttocks and then said that she was his ex-girlfriend. Learner 6 also saw Konco touching the breasts of learner 4. Learner 4 had asked Konco what he was doing when Konco squeezed her breasts but he never answered. With Learner 5 it was seen when Konco touched her buttocks, breasts and then tried to kiss her. Ngonza had taught them that educators do not touch any learners. Learner 8 wanted Konco to spend time in jail. Konco never did anything to learner 8 and others told her what they had gone through.
(13) The employer gave a brief closing argument and stated that there was no place in schools for such behavior from an educator. I was asked to find Konco guilty in terms of section 17 (1) (b) of the Employment of Educators Act No. 76 of 1998 (the Act) and that Konco is not suitable to again work with children.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
(14) I am required to determine on a balance of probabilities whether Konco committed the offences for which he had been charged and if so, whether there is a basis in fairness to terminate the employment relationship between the parties. Konco faced two charges plus a charge in the alternative. The fundamental difference between these charges is that if found guilty in terms of section 17 (1) (b) of the Act then the mandatory sanction is summary dismissal. If found guilty to the alternative charge in terms of section 18 (1) (q) of the Act I as the arbitrator have some discretion in terms of the sanction imposed.
(15) The five learners who gave testimony were consistent despite their emotions. It was evident that it was painful for each of them to again be saying exactly what Konco had done to them. I have no reason not to believe their evidence and in the absence of Konco I have no other version on which to base my findings. The versions of the learners matched what they had previously told the two educators who also testified.
(16) The behavior of Konco was brazen as it was done in full view of others which impaired the dignity of the learner he was assaulting. The behavior of Konco included touching the buttocks of the learners and bunching his fingers together around their buttocks. Konco also grabbed them around their waists to move closer to them. Konco seemed to be aware which learners were on Facebook and if not on that medium asked for their home addresses so he could visit them. Konco also squeezed the breast of another learner so hard that it hurt. Konco mockingly and disgracefully asked this learner whether her breasts were real or if there was only a nipple. In her panic the learner said it was only a nipple and lied when she added that she was eleven years old. Konco with a different learner grabbed her breasts to the extent that it hurt. With a different learner Konco grabbed her buttocks and when she turned round to see what he was doing, Konco grabbed her breasts. With this learner Konco asked her to marry him to be his wife. Konco had also asked this learner for her address so he could visit her. In a second incident with the same learner Konco had squeezed her breasts. In the case of a different learner Konco attempted to kiss her and called her his ex-girlfriend. All these learners are prepubescent and it is a disgrace that whilst at school, which is supposed to be a safe place, these learners were sexually assaulted by Konco to the extent that those whose breasts he had grabbed found it to be very painful. Konco when confronted said he knew that what he had done was wrong and that he was sorry. Saying sorry is not going to take away the pain and emotions suffered by the learners which may stay with them perhaps forever. There is no doubt that Konco conducted himself in an improper, disgraceful and unacceptable manner, in that he sexually harassed grade 6 learners of Nolungile Primary School.
(17) Sexual assault on a learner falls under section 17(1) (b) of the Employment of Educators Act No 76 of 1998. Assault is defined in our law as the unlawful act which results in another person’s bodily integrity being impaired or which inspires in another person a belief that such impairment of her bodily integrity is immediately to take place. Konco is hence on a balance of probabilities guilty of sexual assault on the learners involved.
(18) The test to be applied in determining whether conduct has the requisite sexual nature is an objective one, viewed in the light of the circumstances. The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act and all other circumstances surrounding the conduct, including threats which may or may not have been accompanied by force will be relevant. Konco grabbed the breasts of different learners and did the same to some with their buttocks. There was some aggression involved in that in grabbing the breasts of some learner he caused them extreme pain. Konco asked two learners for their home address so that he could visit them and the learners were too horrified by this behavior that none gave Konco their home address. Konco also tried to kiss a learner whom he asked to marry him to become his wife. The actions of Konco were in these circumstances, on a balance of probabilities, of a sexual nature and completely disgraceful.
(19) 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. I find on a balance of probabilities that Konco is guilty of both charges against him and that his actions were of the nature of a sexual assault.
(20) Where an educator is found guilty of misconduct in terms of section 17(1) (b) of the Act, the sanction of dismissal is mandatory. The arbitrator has no discretion to impose any other sanction irrespective of mitigating circumstances. Courts in all jurisdictions have always viewed any form of sexually inappropriate behavior on the part of educators towards children in the most serious light, justifying summary dismissal. Konco has been found guilty of the first and second charges in terms of section 17 (1) (b) against him and is summarily dismissed with immediate effect from the date of this award. In terms of my findings Konco is found to be unsuitable to ever work again with children in terms of the Children’s Act.
(21) Thozamile Konco is found guilty of both charges against him for which a mandatory sanction of summary dismissal is imposed with effect from the date of this award. Konco is found unsuitable to ever work again with children in terms of the Children’s Act.
(35) Konco has the right to take this award on review to the Labour Court.