Case Number: PSES481-19/20WC
Province: Western Cape
Applicant: A LOMBARD
Respondent: Department of Education Western Cape
Issue: Unfair Dismissal - Misconduct
Award Date: 21 October 2020
Arbitrator: Jacques Buitendag
Commissioner: Jacques Buitendag
Case No.: PSES481-19/20WC
Date of Award: 21 October 2020
In the arbitration between:
DEPARTMENT OF EDUCATION – WESTERN CAPE
Union / Applicant’s representative: Ms. Bester
Telephone: 076 151 4569
Telefax: Not available
Respondent’s representative: Mr. Scholtz
Telephone: 021 467 2387
Telefax: Not available
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. This arbitration took place under the auspices of the Education Labour Relations Council (ELRC) on 7 February 2020 in Vredendal and on 25 September 2020 in Nuwerus. The proceedings were digitally recorded.
2. Mr. van der Berg, an official of SAOU, represented the applicant, Mr. Lombard on 7 February 2020. On 25 September 2020, the applicant was represented by Ms. Bester of the SAOU. The respondent, the Department of Education (Western Cape) was represented by its Labour Relations Officer, Mr. Scholtz.
3. At the conclusion of the proceedings on 25 September 2020 it was agreed that the parties will submit written closing arguments on 5 October 2020. I received the closing arguments of the Mr. Scholtz on this day. Ms. Bester used the incorrect email address and I only received her closing arguments on 13 October 2020 from the bargaining council. I consider 13 October 2020 being the last day of the arbitration.
THE ISSUE IN DISPUTE
4. I must determine whether the applicant’s dismissal was fair.
5. The applicant started working on 1 January 1991 as a post level 1 educator at Citrusdal Primary School. On July 2009 the applicant was appointed at Nuwerus High School.
6. On 5 September 2018 the applicant was charged in terms of section 17(1)(b) of the Employment of Educators Act, no. 76 of 1998 (hereinafter referred to as the EEA), in that on 12 May 2018 he allegedly sexually assaulted a leaner of Nuwerus High School. The alternative charge was that he conducted himself in an improper, disgraceful or unacceptable manner towards the learner in terms of section 18(1)(q) of the EEA. The leaner was 14 years old at the time of the alleged incident. Due to her age, her name will not be disclosed in this award. I will refer to the leaner as “Learner A”.
7. The applicant was found guilty on the main charge of contravening section 17(1)(b) and he was dismissed on 30 April 2019. On 10 May 2019 the applicant lodged an appeal against the finding and his dismissal. On 12 August 2019 the Minister of Education - Western Cape dismissed the applicant’s appeal.
8. On 9 September 2019 the applicant referred an unfair dismissal dispute to the bargaining council. On 9 October 2019 a certificate of non-resolution of the dispute was issued. On 16 October 2019 the applicant requested for arbitration of the dispute.
9. The applicant claims that the dismissal was substantively unfair and he seeks retrospective reinstatement as primary relief. The respondent claims that the dismissal was fair. The procedural fairness of the dismissal is not in dispute.
SURVEY OF EVIDENCE AND ARGUMENT
10. I have considered all the evidence and arguments presented, but because section 138(7) of the Labour Relations Act, 66 of 1995 (LRA) requires an award to be issued with brief reasons for the findings, I shall only refer to the evidence and argument that I regard as necessary to substantiate my findings in the determination of this matter.
The respondent’s case
11. Mr. A J Adonis testified under oath. He was appointed as post level 1 educator at Nuwerus High School on 2 February 2018. He is currently teaching at Lukhof High School in Stellenbosch.
12. Mr. Adonis testified that on Saturday 12 May 2018 he and two other educators , Ms. Arends and the applicant, accompanied a group of learners on a school’s bus from Nuwerus High School to Van Rhynsdorp High School for a sports day. The bus left Nuwerus High School at about 06h00.
13. Mr. Adonis testified that he and Ms. Arends were seated on the first bench on the left side of the bus. He was seated closest to the window and Ms. Arends took the seat next to the aisle. The applicant was seated on the front bench, closets to the window, on the right side of the bus. There were about 60 leaners on the bus. Leaner A was sitting next to the applicant, next to the aisle.
14. Sometime into the trip, Ms. Arends draws Mr. Adonis’ attention to Leaner A resting her head on the applicant’s neck and the applicant embracing her with his arm. They looked intimate, like lovers. Ms. Arends asked Mr. Adonis to say something. Mr. Adonis testified that he found the conduct unacceptable and said out loud “when did your wife get on the bus?” (wanneer het meneer se vrou in the bus geklim?). The applicant responded that the learner was cold and he removed his arm from Learner A.
15. Mr. Adonis testified that he fell asleep and when he later opened his eyes he saw
the applicant’s hands caressing the inner thigh (binneboud) of Learner A. Mr. Adonis demonstrated that Leaner A’s legs were slightly apart at the time. The leaner did not show any resistance. Mr. Adonis explained that he typed on a message on his phone and showed it to Ms. Arends. The message read “what nonsense is this on the bus?” (“waste nonsense gaan nou op die bus aan?”). Mr. Adonis testified that he drew the attention of Leaner A and the applicant and he noticed that Leaner A was embarrassed.
16. Mr. Adonis explained that he was employed at the school for about 3 months prior to the incident and did know how to deal the situation. He testified that on the return trip to Nuwerus, Leaner A was again seated next to the applicant.
17. On Sunday 13 May 2018, he and Ms. Arends reported the incident to Mr. Breda, the Deputy Principal.
18. Mr. Adonis confirmed that a leaner, Millennial Hendricks, was seated in the front of the bus. According to Mr. Adonis, the leaner communicated more with his friends than with the applicant. Mr. Adonis said that when he made the initial comment the leaners giggled.
19. Mr. Adonis acknowledged that he should not have allowed Learner A to sit next to the applicant during the return trip from Van Rhynsdorp to Nuwerus.
20. Mr. Adonis considered the applicant’s conduct to have been unacceptable, morally wrong and against the educator’s code of conduct.
21. Ms. L Arends testified under oath. On 1 March 2018 Ms. Arends was appointed at Nuwerus High School in a temporary post as a post level 1 educator. Currently she is teaching Afrikaans at the school.
22. With regard to the alleged incident, Ms. Arends testified that when she saw Learner A lying with her head on the applicant’s neck and the applicant having his arm around her, she alerted Mr. Adonis. The applicant and Leaner A looked like lovers. She requested Mr. Adonis to address the matter. Mr. Adonis asked the applicant when his wife then got onto the bus. The applicant responded that Leaner A was feeling cold and removed his arm from the leaner. Leaner A then sat up strait.
23. Ms. Arends testified that she later closed her eyes and opened it again when Mr. Adonis nudged her and showed her a message on his phone which read something to the effect of “what is happing here is nonsense”. She then saw how the applicant was caressing Leaner A’s inner thigh (binneboud) with both his hands. Learner A had a short skirt on and looked ashamed. She does not know if leaners who were seated in front to the bus noticed what the applicant was doing.
24. Ms. Arends testified that was disgusted in the applicant’s behaviour. She and Mr. Adonis reported the incident to Mr. Van Breda the following day.
25. Ms. Arends confirmed that she applied for-, and was appointed to the post in which the applicant was prior to his dismissal.
26. Mr. S Van Dyk, the Principal of Nuwerus High School testified under oath He indicated that when Mr. van Breda reported the incident to him that he then reported it to the school’s social worker at the Vredendal Circuit Office. He confirmed that the applicant was not suspended and remained in his position until his dismissal. With the applicant being found guilty of sexual assault, he cannot trust the applicant as an educator any longer. Mr. van Dyk confirmed after the applicant dismissal, the post in which the applicant was, was advertised and that Ms. Arends were permanently appointed.
27. During an in loco inspection of the bus it was found that the bench on which Mr. Adonis and Ms. Arends were seated is opposite and slightly behind the bench which the applicant and Learner A occupied on the day in question. There is an open space of about 35cm between the two benches and the view is between the benches is unobstructed. The bus plate on which Mr. Hendricks sat is close to the front bench and the view between the plate and bench is also unobstructed.
28. Mr. Scholtz’ argued that the evidence proves the allegation on a balance of probability and that the applicant’s dismissal was fair.
The applicant’s case
29. The applicant, Mr. A Lombard, testified under oath. Mr. Lombard taught Afrikaans for Grades 8-12 at Nuwerus High School. Learner A was in his class. She was in his class from Grade 8-10. No criminal charges were laid against him pertaining the allegations and he received no complaints from parents.
30. With regards to the alleged incident, Mr Lombard testified that it is all fabricated. Mr. Lombard submitted that other educators were envious because of the rapport that he had with leaners and the way in which he managed discipline.
31. Mr. Lombard testified that Leaner A is well build and that the bus seat is small. He also had a suitcase on the bench next to the window. They had to sit close together. Leaner A sat uncomfortably next to him, nearest to the aisle. Mr. Lombard testified that Mr. Hendricks sat on the bus plate in front of them. Mr. Hendricks made jokes and they had a conversation. When the bus arrived in Van Rhynsdorp, he went to the changeroom with the rugby players. On their way back from Van Rhynsdorp Leaner A again took the seat next to him.
32. Mr. Lombard denied that he had his arm around Learner A. He testified that he did not hear any comment from Mr. Adonis and did not respond to it. He also denied that he stroked the inner thigh of the learner.
33. He said that he continued to teach after the alleged incident and that Learner A remained in his class until his dismissal.
34. Mr. M Hendricks testified under other. Mr. Hendricks is now 20 years old and still a leaner at Nuwerus High School. Mr. Hendricks testified that the applicant taught him Afrikaans and always motivated him. The applicant was his under 17 ruby coach.
35. With regard to the day of the alleged incident, Mr. Hendricks testified that he was in Grade 11 at the time. He and another leaner were seated on the bus plate in front of the bus and he was facing the back of the bus. The applicant and Mr. Adonis boarded the bus after him. The applicant has a suitcase with him which he placed next to him on the front bench. Learner A sat next to the applicant. Mr. Hendricks testified that he made jokes and had conversations with the applicant and other leaners on the bus.
36. Mr. Hendricks testified that he saw nothing untoward that happened between Leaner A and the applicant during the trip from Nuwerus to Van Rhynsdorp. He cannot remember that the applicant had his arms around Learner A or that had his hand on her inner thigh. He did not hear that Mr. Adonis said something to the applicant. Mr. Hendricks submitted that Mr. Adonis and Ms. Arends made the allegations because they envy the manner in which the leaners respected the applicant.
37. With regard the disciplinary hearing report in which his testimony was recorded that “He said Mr. Adonis di ask Mr. Lombard why they were sitting close together. According to him Mr. Lombard’s response were “why can’t someone sit like that because there was no enough room there”” the applicant he cannot remember that well.
38. Ms. Bester argued that the applicant was wrongfully charged. If the incident happed Mr. Adonis and Ms. Arends would not have allowed the leaner to sit next to applicant on the return trip and would have reported the incident immediately to the principal, who was at the sports event in Van Rhynsdorp. Mr. Hendricks has nothing to gain by lying. The applicant was not suspended and he taught Leaner A from 12 May 2018 until 12 August 2019. This shows that the trust relationship is not broken. The dismissal was unfair and the applicant ought to be reinstated retrospectively.
ANALYSIS OF EVIDENCE AND ARGUMENTS
39. Section 192 of the LRA provides that the employee must establish the existence of a dismissal and if that has been established the employer bears the onus to prove on a balance of probabilities that the dismissal is fair.
40. The procedural fairness of the dismissal is not in dispute.
41. In deciding the substantive fairness of the applicant’s dismissal, I must consider Schedule 8, item 7 of the Code of Good Practice on Dismissal. In this regard the Code states that an arbitrator must consider:
“Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to the workplace; and if a rule or standard was contravened, whether or not
• the rule was a valid or reasonable rule or standard
• the employee was aware, or could reasonably be expected to have been aware, of the rule or standard
• the rule or standard has been consistently applied by the employer and
• dismissal was an appropriate sanction for the contravention of the rule or standard”
42. The respondent has dismissed the applicant in terms of section 17(1)(b) of the EEA, for committing an act of sexual assault on a Grade 9 learner of Nuwerus High School, as alleged.
43. The applicant has denied this allegation. I will thus first consider whether or not the applicant has contravened section 17(1)(b) of the EEA. The onus is on the respondent to proof the contravention on the balance of probabilities.
44. In WESUSA & Others vs Jacobz 2000 8 BLLR 977 (LC), the Court remarked that “the onus will be discharged if the respondent can show credible evidence that its version is the more probable and acceptable version. The credibility and the improbability of what they say should not be regarded as a separate enquiry to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the respondents version, an investigation where the questions of demeanour and impression are measured against the content of a witness’s evidence, where the importance of any discrepancies and contradictions is assessed and where a particular story is tested against the facts which cannot be disputed and against the inherent probabilities, so that a the end of the day one can say with conviction that one version is false and be rejected with safety”. The onus will not be discharged by raising mere suspicions of misconduct.
45. I have considered whether Mr. Adonis and Ms. Arends might have made up what had happened on the bus on 12 May 2018 between the applicant and Learner A because they were jealous or envious on the applicant. I have also considered whether the fact that they did not prevent Learner A from sitting next to the applicant on the return trip to Nuwerus means that the incidents probably did not take place. And I have considered whether Ms. Arends’ testimony might have been tainted because she effectively replaced the applicant at the school when he was dismissed. But I cannot find any substance to support these contentions. For the above contentions to be true, it would mean that either Ms. Arends had to influence Mr. Adonis to lie or they had to conspire and carefully plan to find a situation from which they can make up allegations against the applicant to have him dismissed. I find such proposition highly improbable.
46. In fact, I find both Mr. Adonis and Ms. Arends to have been honest witnesses and strait forward in their testimony. Both made concessions where necessary and importantly, they corroborated each other on all material facts. I find their testimony credible and reliable.
47. The applicant did not change his version during cross-examination. In my view his version to what had transpired on the bus was vague, and amounts to not much more than a mere denial. Interestingly, he denied hearing the comment of Mr. Adonis about whether his wife has boarded the bus or that he has reacted thereto. This is in direct contradiction to the corroborated testimony of Mr. Adonis and Ms. Arends who both testified about what Mr. Adonis has said and that the applicant’s reply was that the child was cold. I have no reason to doubt the corroborated version of Mr. Adonis and Ms. Arends on this score. In fact, Mr. Hendricks also testified that the Mr. Adonis did made a comment during the trip about why the applicant and Leaner A were sitting close together and that the applicant indeed responded (Bundle 1 page 10). The applicant’s denial that he heard the comment of Mr. Adonis along these lines or that he replied thereto clouds his credibility.
48. Mr. Hendricks did not impress me as a witness. He was quite adamant that nothing untoward has happened on the bus but the reliability of his recollection must be questioned. This is so because the chairperson’s report, as I have referred to above, reflects his testimony to have been that he heard Mr. Adonis asking the applicant why they were sitting so close together and the applicant responded “why can’s someone sit like that because there was not enough room here”. When I sought clarification from Mr. Hendrick’s about this issue, he replied that he cannot remember if it was said or not. It is interesting that Mr. Hendrick’s memory has failed him on this score while he testified otherwise in detail as to who has boarded first, where the applicant’s suitcase was and what had happed on the bus. His vague response leads me to conclude that he is unwilling to make concessions or to provide evidence that may not be in the applicant’s interest. I find his credibility tainted.
49. Mr. van Dyk was not on the bus. His testimony was about the procedures followed after the incident was reported to him; his views on the trust relationship and whether or not the applicant should have been suspended. Not much turns on his testimony.
50. Assault is defined as the unlawful and intentional act which results in another person’s bodily integrity being impaired, or which inspires on another person a belief that such impairment of his/her body is immediately to take place. Sexual assault is any form of assault committed in circumstances of a sexual nature so that the sexual integrity of the victim is violated or threatened. Assault by means of menacing threats of a sexual nature may occur without any touching.
51. The elements of sexual assault are a) conduct of a sexual nature; b) which results in the victim’s integrity being impaired (or inspired the believe that it will be impaired); c) unlawfulness – meaning that there must not be a justification ground for the action, such as for example consent; d) intention to commit the misconduct - in other words accidental unintentional bodily contact is excluded from the definition.
52. The respondent did not call Leaner A to testify, but this does not mean that the offence cannot be proven. The test to be applied in determining whether conduct has the requisite sexual nature is an objective one, viewed in light of all the circumstances. The part of the body touched, the nature of the contact, the situation in which is occurred, the words or gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force will be relevant. The intent or purpose of the person committing the act, to the extent that it may appear from the evidence, may also be a factor in considering whether the conduct is of a sexual nature.
53. Given the wide meaning of sexual assault, it involves not only rape, sodomy, oral sex or other forms of sexual activity without the consent of the victim but also includes other forms of intentional conduct of a sexual /erotic nature such as kissing on the lips, and touching or caressing buttocks or breasts of a victim.
54. I prefer the corroborated version of Ms. Arends and Mr. Adonis as to what has transpired on the bus. It is common cause that Leaner A, who was 14 years old at the time, was seated next to the applicant on the bus on way from Nuwerus to Van Rhynsdorp. I find that Leaner A was indeed lying with her head on the applicant’s neck and that the applicant initially had his arm around her. He only took his arm away when Mr. Adonis made a comment about it. Whilst this conduct from an educator is improper, disgraceful and unacceptable and amounts to a violation of section 18(1)(q) of the EEA, it does not in itself, amounts to sexual assault.
55. In terms of the allegation of sexual assault, I have considered that the bus bench can barely just seat two people and that the bodies of the applicant and Leaner A must have touched each other. I have also taken into account the undisputed evidence that Leaner A had a short skirt on. I find, on a balance of probabilities, that the applicant indeed caressed the inner thigh (binnebound) of Learner A with both his hand and that her legs were slightly apart at the time. It is evident from Mr. Adonis and Ms. Arends’ testimony that Learner A was also embarrassed when she became aware that they have observed what the applicant was doing to her. The conduct of the applicant impaired the bodily integrity of Learner A and was sexual in nature. There is no evidence that such caressing could have been unintentional. For the above reasons I find that the applicant has sexually assaulted Leaner A by caressing her inner thigh with both his hands.
56. It was not in dispute that 1) the rule against sexual assault was a valid or reasonable rule; 2) the applicant was aware of the rule and 3) that the rule or standard was consistently applied.
57. As to whether dismissal was the appropriate sanction for the contravention of the rule, the parties presented evidence and argument about the trust relationship. The respondent argued that the trust relationship is broken, whilst the applicant party questioned how the trust relationship can be broken when the applicant was allowed to continue to work for more than a year after the alleged misconduct took place.
58. I must take into account that the Constitutional Court in Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BCLR 761 CC, held that section 28 of the Constitution impresses an obligation on all those who make decisions concerning children to ensure that the best interest of the children enjoy paramount importance. Courts and administrative authorities are constitutionally bound to give consideration to the effect their decision will have on children’s lives. And it is important to note that where an educator is guilty of misconduct in terms of section 17 of the EEA, the sanction of dismissal is mandatory. The arbitrator thus has no discretion to impose any other sanction, irrespective of any mitigating circumstances or his or her views on whether the trust relationship is broken or not.
59. Section 120(1) of the Children’s Act, No 38 of 2005 provides that a finding that a person is unsuitable to work with children may be made by “any forum established or recognised 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 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.
60. I can only make such a finding after the accused employee had an opportunity to make submissions why such finding should not be made. The respondent did not make an application either during or at the end of this arbitration inquiry for the applicant to be found unsuitable to work with children. Whilst I can make such a finding on own accord, I find that in the absence of such an application by the respondent and in the absence of the accused employee not having had an opportunity to make submission as to why such a finding should not be made, I cannot make a finding at this stage as to whether or not the accused employee must be declared unsuitable to work with children.
1. The dismissal of the applicant was fair. The application is dismissed.
2. The ELRC is directed to send a copy of this award to the South African Council for Educators (SACE) to consider revoking the applicant’s SACE certificate.
ELRC Commissioner: Jacques Buitendag