Case Number: ELRC541-19/20KZN
Applicant: CB Mseleku
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Dismissal - Misconduct
Venue: Department of Education Offices in Stanger.
Award Date: 21 October 2020
Arbitrator: V Naidoo
Panellist: V Naidoo
Case No: ELRC541-19/20KZN
Date of Award: 21 October 2020
In the matter between:
Department of Education - KZN
Union/Employee’s Representative: Mr SP Chamane
Employer’s representative: Ms J Duma
DETAILS OF THE HEARING 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 09 and 22 September 2020 at the Department of Education Offices in Stanger. The request for an inquiry by an arbitrator was made on the prescribed form. The employer handed in a bundle of documents and an electronic recording. The arbitration was digitally recorded.
2. The proceedings were conducted in English and recorded electronically and closing arguments were submitted before 02 October 2020.
3. The employee in this matter, Mr CB Mseleku (“Mseleku”) was represented by Mr SP Chamane of SADTU, and the employer was represented by Ms J Duma, Labour Relations Officer. The intermediary was Ms B Khanyile and the process was interpreted by Ms H Mthethwa. The child witness in this matter had not yet reached the age of 18. It was agreed that to protect the identity of the child, she would only be referred to as Learner “A”.
ISSUE TO BE DECIDED
4. The purpose of this enquiry is to determine whether Mseleku 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 on or about 14 January 2019, at or near ML Sultan Secondary School you allegedly had a sexual relationship with a learner (Learner A). In so doing you contravened section 17(1) (c) of the Employment of Educators Act, no 76 of 1998 as amended.
5. The alternative to charge (i) being:
In that on or about 14 January 2019, at or near ML Sultan Secondary School you pursued a sexual relationship with a learner (Learner A). In so doing you contravened section 18(1) (q) of the Employment of Educators Act, no 76 of 1998 as amended.
BACKGROUND TO THE DISPUTE
6. The matter was initially scheduled for 31 August 2020 via Zoom. The employee was not in attendance. The matter was then postponed to 09 September 2020 to be held at the Department of Education offices. On this day, the employee’s representative applied for a postponement for 3 reasons:
6.1. He only became aware of the matter on 08 September 2020 and didn’t have adequate time to prepare. He was not provided the opportunity to narrow the issues with the employer or go through the bundle. The employee was unaware that the matter had sat previously, on 31 August 2020.
6.2. The statement of the learner is in Zulu and whilst there is an intermediary and interpreter, there is no translator present to translate the document into English.
6.3. There is no facilities available in terms of the Collective Agreement (3/2018) to protect the learner.
7. The employer objected to the application for postponement on the basis that the employee cited the email address of the school for the service of documents. The school principal confirmed that they had communicated with him regarding the set down of 31 August 2020. The employee was given enough time to prepare as he was first served with the bundles on 05 September 2019 and the employer maintained that they were ready to proceed.
8. The learner is not intimidated and they waive the right to additional resources, barring the intermediary and a screen. The learner is suffering the trauma of reliving the experience and there is no guarantee that she will come if she is called a third time. The interpreter is capable of translating the statements where necessary.
9. In balancing the employee’s rights with that of the witness and the employer, the application was not granted.
10. I reasoned as follows:
10.1. The employee chose the school email address for the service of documents and the notice was properly served on him.
10.2. The charges and the bundle were in his possession for approximately a year. He elected to engage with the union at the eleventh hour, and therefore faces the consequences of his actions.
10.3. This is the second occasion that the learner and her family presented themselves to testify and a further postponement will prejudice the witness and if she does not arrive, the employer as well.
11. In fairness to the representative, I allowed him the opportunity to engage with his member and peruse the bundle before continuing with the matter.
SURVEY OF THE EVIDENCE AND ARGUMENT
12. In terms of section 138(7)(a) of the Labour Relations Act 66 of 1995 (“the Act”) I am required to issue an award with “brief reasons”. I do not propose to offer an exhaustive survey of all the evidence and argument led at the arbitration hearing, most of which are contained in the background to the dispute above. What follows is a summary of the evidence relevant to my findings only.
13. Learner A testified that she was in grade 10 at ML Sultan Secondary in Stanger in 2019. Mr Mseleku was her geography teacher. She was not pressured into writing the statement and she agreed to the content thereof.
14. In elaboration of her statement, she testified that Mseleku started teaching her in 2018. Quite often other learners would come into their class and the class would get disturbed. Sometimes he would leave the class unattended for the full period.
15. Mseleku started looking at her differently and started sending her out on errands for him. He started giving her general advice to take good care of herself and then progressed to professing love to her. On the first day of school in 2019, she was sitting at the desk in front of the teacher, and as the other learners left the classroom, he paid her a compliment. He said that she was different from the others and that she is well disciplined as he never saw her with boys. She smiled back and said that she didn’t realise that people took notice of her doing well.
16. He then asked her if she had a boyfriend and she said no. He said that a beautiful girl like her must have a boyfriend and that she was lying. He then said that he is available and she needs a person like him who would take good care of her. She laughed it off and said “but sir, at your age” and he replied that he would do anything for her. She repeated “at your age” and took it as a joke but he had a serious gesture and straight face. He said that he was in love with her.
17. She asked him how come he is in love with her when he used to give her advice. He maintained that he is in love with her. The bell rang and the teacher left. She remained in the classroom. When her classmate came in, she told the classmate what had occurred. The classmate dismissed the incident and said that it must have been a joke. But the behaviour continued. She eventually told her mother but asked her mum not to tell her dad because it would become a serious issue.
18. On another occasion, he called her while she was in class and learning. She went to him and he repeated that he loved her. She got irritated and said that she could never date him. She then changed her seat to sit at the back of the class with the boys. When she told her friend about it, they still didn’t believe her.
19. Mseleku then started hitting the male learners that she sat with. He would lash out at her and scold her. She stopped attending the geography class. He then started sending different learners to call her and she would always tell them that she is not available. Whenever she saw him, she would run away. One day he called her and said that he would do anything to be in a love relationship with her. She replied with “no thank you”. She then had an attitude towards him to show him that she was unhappy about what he was doing.
20. She devised a plan to prove that everything she was saying was true. She remembered that he always asked for her phone number so she finally gave it to him. She started saving his text messages and then realised it was not enough. He could easily delete the messages or deny that he sent them. She then started recording his calls.
21. In one of the calls, he sounded drunk and asked her where she was because he wanted to see her. She cut the call.
22. At school on the day of the final incident, he found her during the break and said that he wanted to take her out of school. She asked where he wanted to take her and he said that he wanted to go to his place. He asked her to go to the car park and he went to reception to ask for sick leave. She went to the car park and another educator, Mr Msomi (“Msomi”) was waiting for her. He told her to go to the car with flashing lights and pressed his remote to open the car. She then suspected he was a culprit in Mseleku’s plan.
23. She did as Msomi had instructed and her phone was recording. When cars enter and exit the premises, security searches the car. On this day, there was no search. The plan was for them to go to Mseleku’s house and she was thinking of what might happen when they get there.
24. The principal then called Msomi and told him he had no permission to leave the school and he needed to teach. Msomi then told Mseleku that he can’t go with him and he will drop them off at the Mall and return to school. Mseleku wanted to go to Cell C to report losing his phone and she agreed to go with him. She thought that people would think she is his daughter or granddaughter and if he disputed taking her there, there would be video footage to prove it.
25. They left the mall and started walking to his place and on the way she complimented Msomi saying that he was a good person and didn’t force learners against their will. Mseleku replied that they both do the same thing. She continued asking him questions and even compared him with the principal and he replied that the principal and the other educators are stupid.
26. She then asked him who is at home and he said that he gave the nanny the day off and no one was home. He said that they are in love and started talking sex with her. She told him that she never said she loved him and he continued talking sex and asked her to keep walking. She stood and said this is where everything stops and it can’t be swept under the carpet. She asked him about other learners and about threats that if the learners don’t do what he says, they will fail. She told him she was recording him and that she saved all his messages. He then saw that it was becoming serious and asked her to calm down. He said he will do anything and he offered her money to delete it. She said no, she wants justice.
27. She left him and bumped into a pastor who took her back to school. She spoke to the counsellor who later told the principal. Her parents were then advised.
28. Under cross-examination Learner A confirmed that she wrote her statement at home when she was alone. Social workers came to the school and advised her to write a statement. She disputed Mseleku’s version that an educator from school advised her to write the statement.
29. When Mseleku asked her if she had a boyfriend, Mseleku’s version was that other educators were present and it was a general conversation. She disputed this and stated that it was a private conversation.
30. Learner A clarified that when she was approached by Mseleku to leave the school premises, she went back inside the classroom and set her phone to record. When she got to the parking lot, Msomi was waiting for her and indicated which car she should go into and he asked her to hide.
31. She was unable to tell anyone that she was leaving the school premises as Mseleku just bumped into her and asked her to go to the car park. She couldn’t recall how much he offered her to destroy the recording.
32. She went back to school afterwards because she didn’t want the day to go by without telling anyone about the incident. She spoke to the counsellor and later with the principal. They requested the evidence and she provided them with the recordings and messages.
33. Mseleku testified that he was employed for 12 years at ML Sultan Secondary. In 2019 he took long leave as a result of financial problems and his state of health.
34. The allegations were made against him on 14 January 2019. He was not feeling well in the first period and he requested leave to go home. Leave was granted. He didn’t have his car and the principal asked Msomi to take him home. The principal knew of his problems and would normally ask anyone who was free to take him home.
35. Mseleku found Msomi and advised him of the principal’s request. Thereafter, Learner A approached him and said that she wanted a lift as she was not feeling well. He asked her if she had asked the principal for permission to leave as girls are not allowed to leave without a parent. She said the principal was aware and asked her to speak to him about giving her a lift home.
36. The principal then personally confirmed that Msomi and he (Mseleku) must take Learner A and drop her off in town. He went to the staffroom and she sat on the benches. When he got back, Msomi advised that he showed her which car to get into and he confirmed that the principal had granted her leave.
37. As they were leaving the school, he noticed that she was sleeping in the back seat and he said in Zulu, “You thief, why are you hiding?” She just laughed and it didn’t bother him. He didn’t communicate with her further. He was communicating with Msomi. They went to the mall and Msomi dropped them off and went back to school. Learner A was meant to go to the clinic and he was going to report the loss of his cell-phone.
38. Learner A said she wanted to go to Pick n Pay and he went to Cell C. Within 5 minutes, she was at the door of Cell C. He didn’t ask her why she came back. Both then started walking towards the clinic as his house was in the same direction.
39. Just before the clinic, she changed her story and said that she wanted to go to her mother’s workplace. Her mum worked at the Stanger Police Station. This was not the direction they were headed.
40. She then started asking questions about learners and colleagues. After the conversation, she said that she was recording him and she turned back. He didn’t ask her why she was recording him and he went straight home.
41. Weeks before the incident, the principal came into the staff room and said that he will lose his house, his job, and his wife and he would be eating from the dustbin. He didn’t take it seriously and a week later this happened. The principal is therefore behind the incident because of internal politics.
42. He initially resigned due to financial problems and he decided to withdraw the resignation when he realised that he was being implicated and because his money would be “docked” if he resigned.
43. Under cross-examination Mseleku conceded that on the day of the incident, he took leave from school, he met with Learner A and they left with Msomi who dropped them off at a mall. He didn’t have a permission slip to allow Learner A to leave the premises because the principal had requested that he drops her off. He maintained that he laughed it off when he saw her lying in the back seat. He is aware that the purpose of the permission slip is to hand over to security to allow her to leave the premises. He failed to respond to the statement that the principal was not at school on the day of the incident.
44. When asked why he didn’t put his different versions to the Learner A, Mseleku replied that he wasn’t called to the stand at that time and therefore wasnt given the opportunity to do so.
45. Under re-examination Mseleku confirmed that the issuing of permission slips is normal at the school.
46. The employer argued that most of Mseleku’s evidence was manufactured and he ought to be found guilty and dismissed.
47. The employee argued that the he was a victim of a conspiracy and he should be found not guilty of the charges against him.
ANALYSIS OF EVIDENCE AND ARGUMENT
48. I have considered the testimony of Learner A. She came across very confident, determined and strong willed. She was unwavering, clear and articulate. I found her to be a credible witness who withstood cross-examination like a seasoned professional. She painted a very clear picture of how the behaviour of Mseleku escalated from asking her to run errands, to the giving of guidance and advice, to professing his love and making promises to asking her to leave the premises with him.
49. She painted a very clear picture of the desperation she felt because no one believed her and how she devised a plan to collect enough evidence to prove her version. There were no inconsistencies in her evidence and cross-examination concretized her version.
50. Under cross-examination it was put to her a number of times that other witnesses would be called in to refute her version and her recording. She remained resolute and I note that the employee failed to call any witnesses to refute her version.
51. The employee on the other hand failed to put to Learner A that she was used in a conspiracy by the principal to dismiss the employee. He failed to substantiate this claim in any way and he failed to call any witnesses to corroborate his version. He additionally failed to put his different versions to Learner A and his submission that he was not allowed the opportunity carries no weight as he was given an opportunity to consult with his union official prior to cross-examination of Learner A.
52. Mseleku limited his evidence to the day of removing Learner A from the school premises. He failed to challenge the various incidents prior to this day. He began his testimony by stating that the principal understood his plight and would often arrange for someone to take him home and then contradicted himself by stating that the principal was actually conspiring against him and that they did not have a good relationship.
53. He testified that the principal instructed Msomi and him to take Learner A to the clinic/ home. He fails to explain why the principal then called Msomi and ask him to return to school. He acknowledged his responsibility as an educator but fails to explain how they would take a learner out of school without a permissions slip (in circumstances where he claims a threat was already made) and gets dropped off at a mall when both him and the learner were meant to be booked off sick.
54. If Msomi was not guilty of being part of Mseleku’s elaborate plan to get Learner A to his house, and if Msomi was in fact merely following instruction by taking him and Learner A out of the school premises, I see no reason why Msomi elected not to get involved and testify on behalf of Mseleku. His corroborating testimony would have absolved Mseleku of any wrongdoing.
55. It is my view after careful analysis of all of the evidence put before me, that Mseleku was an unreliable witness who failed dismally to provide a plausible and credible version to overturn that of Learner A. His version simply doesn’t make any sense.
56. I therefore find the employee not guilty of charge (i) as there is no evidence to suggest that Learner A engaged in a sexual relationship with Mseleku. I do find the employee guilty of the alternative charge namely, that on or about 14 January 2019, at or near ML Sultan Secondary School you pursued a sexual relationship with a learner (Learner A). In so doing you contravened section 18(1) (q) of the Employment of Educators Act, no 76 of 1998 as amended.
57. In circumstances where an educator grooms a learner for sexual conduct in a number of ways over a period of time, despite all of her resistance, that educator is a predator and cannot continue to be employed as an educator.
58. The employee, Mr CB Mseleku, is found guilty of contravening section 18(1) (q) of the Employment of Educators Act, no 76 of 1998 as amended by pursuing a sexual relationship with a learner (Learner A).
59. Mr CB Mseleku is dismissed from the services of the Department of Education from the date of the award.
60. Mr CB Mseleku has the right to take this award on review to the Labour Court.
Dated at Durban on this 21st day of October 2020.