Case Number: PSES553-19/20 WC
Province: Western Cape
Applicant: SALIPSWU obo QAGAMBILE NKOSIYANE
Respondent: Department of Education Western Cape
Issue: Unfair Dismissal - Misconduct
Award Date: 23 November 2020
Arbitrator: Gail McEwan
Commissioner: Gail McEwan
Case No.: PSES553-19/20 WC
Date of Award: 23 November 2020
In the ARBITRATION between:
SALIPSWU obo QAGAMBILE NKOSIYANE
THE DEPARTMENT OF EDUCATION WESTERN CAPE
Union/Employee’s representative: Bongani Magqaza (SALIPSWU)
Union/Employee’s address: 129 Rochester Street
Telephone: 079 743 2271
Employer’s representative: Zola Dayimani
Employer’s address: Private Bag X9114
Telephone: 021 467 9232
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
(1) Arbitration was held on 29 January 2020 at the offices of the Department of Education in Cape Town. The matter was concluded virtually with the consent of the parties on 11 November 2020. Present was Qagambile Nkosiyane (employee) who was represented by Bongani Magqaza (SALIPSWU (South African labour related public service workers Union)). The Department of Education (DOE) (employer) was represented by Zola Dayimani (labour relations officer). The Certificate of Outcome declaring the matter unresolved at conciliation is on file and is dated 22 October 2019. These proceedings were digitally recorded, a Xhosa interpreter was present and the employer handed in a bundle of documents. The employee handed in documents which were then made up into bundles of documents and paginated. Daniel Kowa was present as an intermediary as a minor child would be giving evidence. Written permission had been obtained from the parents of the minor child to testify. At the time of the incidents the child had not yet reached age 18. It was agreed that to protect the identity of the child she would only be referred to as leaner “A” and her mother would be called by a pseudonym “JJJ”.
THE ISSUE IN DISPUTE
(2) I am required to determine on a balance of probabilities whether the dismissal of Nkosiyane was fair. SALIPSWU confirmed that there were no procedural challenges in this dismissal. Nkosiyane was charged with: (1) Misconduct in that you conducted yourself in an improper, disgraceful or unacceptable manner (during January 2019 and/or February 2019 ) in that you sexually harassed ‘A’, a learner at Wallacedene Secondary School by: (a) telling the learner that you love her; (b) requesting her to be your girlfriend and/or requesting to have a sexual relationship with her; and/or (c) suggesting that she meets you after school; and or (d) attempting to hug and/or kiss her. (2) In the same period you (a) visited and/or standing outside of ‘A’s home; and/or (b) sending her WhatsApp messages requesting to see her after school and/or made enquiries about who she was sleeping with; and/or (c) requesting a kiss from her; (d) requesting her to send you her picture; and (e) threatening that she would fail History if she does want to love him. It was agreed that Nkosiyane had pleaded guilty to all charges other than charge 2 (a) and had been found not guilty of charge 2 (e). Nkosiyane felt that why he had done what he did the sanction of dismissal would be found to be inappropriate. Specifically Nkosiyane felt that the employer had acted inconsistently in their application of discipline; Nkosiyane felt that ‘A’ and her mother had conspired against him; the social media records had not been considered; and the analysis of the evidence was not properly done. Nkosiyane is seeking re-instatement or even re-employment at a school where there is a vacancy for his skills set.
(3) 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
(4) Nkosiyane started working for the employer on 15 March 2011; worked as an educator teaching History up to Grade 12; earned R25 270.25 per month and was summarily dismissed on 27 August 2018 for gross misconduct.
SUMMARY OF EVIDENCE AND ARGUMENT
The employer’s version and testimony was as follows:-
(5) Learner ‘A’ (learner in grade 10 during 2019) testified that she turned eighteen on 17 July 2020. ‘A’ had been at the Wallacedene Secondary school and Nkosiyane had been her history teacher. Referring to the bundle containing WhatsApp messages ‘A’ confirmed that such communications took place between her and Nkosiyane. The conversation shown happened but as there was something wrong with the phone the times may be incorrect. ‘A’ confirmed that the WhatsApp messages on ER1 bundle pages 31 to 43 are those between her and Nkosiyane. On ER1 bundle page 105 is where in the WhatsApp message dated 10 February 2019 Nkosiyane had asked ‘A’ for a kiss. On ER1 bundle page 38 Nkosiyane had asked ‘A’ to send him a picture of her. On ER1 bundle page 43 Nkosiyane asked ‘A’ why she had not given him a hug on the Friday. On ER1 bundle page 32 Nkosiyane asked ‘A’ who she was sleeping with. ‘A’ confirmed that all these messages took place in January 2019 to February 2019. ‘A’ specifically recalled that on 14 February 2019 Nkosiyane had asked her to meet him in the classroom. Referring to ER1 bundle page 49 which is the charge sheet for Nkosiyane, ‘A’ confirmed that during the period January to February 2019 Nkosiyane had told her that he loved her, requested her to be his girlfriend and suggested that they meet after school in his classroom. When ‘A’ went to meet Nkosiyane in the classroom she had entered and closed the door behind her. Nkosiyane had then started holding her in a hug and asked for a kiss. ‘A’ had been at the school hall when she had received the message to meet him in the classroom. Nkosiyane had said to fetch something from his class and on her arrival only Nkosiyane was in the room. Before entering the classroom ‘A’ was accompanied by a friend who had stopped at the tap. The door of the classroom was closed when Nkosiyane had asked her for a kiss whilst holding her at the same time. Others were passing by outside of the classroom and ‘A’ told Nkosiyane to be quiet. The messages in this regard are on ER1 bundle page 37 which exchange happened at school on the day that there was a show to celebrate Valentine’s Day. Nkosiyane had messaged ‘A’ to meet him in his classroom. Whilst the times may be incorrect the content of the messages is correct. This was the incident that Nkosiyane hugged ‘A’ and asked for a kiss. When this happened ‘A’ felt that she had lost her value. ‘A’ explained that she was too young to be involved with a person like her father – meaning the same age. ‘A’ then left the classroom as she was angry and had told her friend about what had happened. ‘A’ had gone to tell the principal but she had not been in her office. When ‘A’ got home she told her mother about what had happened. Her mother told her she had to tell the principal. The incident happened on a Friday which was followed by the weekend. On the Monday after the morning meeting ‘A’ told the principal what happened. The friend who was with ‘A’ is Anele Nkatana. The principal took the phone from ‘A’. Thereafter people from the Department of Education started arriving at the school with a social worker who was a coloured lady. ‘A’ was sure that the date of the incident had been 15 February 2019 which was after Valentine’s Day when the show at the school took place. Thereafter Nkosiyane had never again spoken to ‘A’. Nkosiyane had asked the friends of ‘A’ for updates on what was happening which led in turn to them asking ‘A’. Referring to ER bundle page 43 ‘A’ explained that she received a WhatsApp message from Nkosiyane asking why she had run away from him on the Friday. The WhatsApp messages had stopped when the principal had taken the phone away from ‘A’. Nothing further happened on Facebook after the principal had taken her phone. In terms of the WhatsApp messages some had been received when ‘A’ was at home and others when she was at school. ‘A’ explained that Nkosiyane had admitted that he had done these things. Referring to ER bundle page 49 to charge 2(a) ‘A’ stood by her version that Nkosiyane had been standing outside of her house even if this was denied by Nkosiyane. Nkosiyane used to go to her home in a silver-grey Toyota Corolla. Nkosiyane had called ‘A’ to say he was outside her house so she is aware that it was Nkosiyane. The mother of ‘A’ had seen Nkosiyane through the window, was angry and had wanted to go to scold him but ‘A’ stopped this as some school children were walking by and they might overhear things said. Her mother had seen Nkosiyane walking outside and had said what was an old man doing there and then the phone rang. ‘A’ denied that she had a sexual relationship with Nkosiyane and explained that he was aware that she was a learner. Nkosiyane is known to ‘A’ as he had taught her in Grade 9. It was put to ‘A’ that the version of Nkosiyane was that he told her he was ending their relationship and ‘A’ would report him if he does that. ‘A’ explained that there was nothing between them to end but Nkosiyane had threatened ‘A’ if she did tell anyone she would fail history. On ER bundle page 46 is a letter written by SALIPSWU dated 3 May 2019 regarding the sanction imposed on Nkosiyane wherein it is stated that Nkosiyane is remorseful and promised he would never do anything that is harassment of a child again. Referring to ER bundle page 47 where in an undated letter Nkosiyane had pleaded that he knew what he did was wrong, was new to the field and was a father of four children who were totally dependent on him for financial support. ‘A’ explained that she had no reason to lie about had happened in the incidents. ‘A’ explained that Nkosiyane had asked another schoolchild to create a false account so that it put her in the wrong so that Nkosiyane could return to the school. It had been publicized on social media that she was in a relationship with Nkosiyane but this was untrue. This person was Akona Nkatana but the account on Facebook had subsequently been deleted. Nkosiyane had never apologized to ‘A’ for his behavior. ‘A’ had seen Nkosiyane in a dark grey car from which he had said “old friend, be very grateful as she was still alive as he would have finished her off.” That incident had happened in 2020 on a Sunday before the school year had started on the Wednesday. ‘A’ felt frightened and she feared that she may be kidnapped. The friend with her at that time had been Anita Ngxaweni.
(6) Under cross-examination ‘A’ confirmed that the chats on Facebook had begun in about February 2018 and on WhatsApp by the end of 2018. ‘A’ was still a scholar at that time at the same school. Referring to EE bundle page 1 ‘A’ confirmed this was a print out of her Facebook page. ‘A’ had dropped out of school in August 2018, her son had been born on 15 February 2018 and she had left school to look after her son in August 2018 when he had become ill and was hospitalized. In September 2018 ‘A’ had given Nkosiyane her phone number at which time she had not been at the school. ‘A’ said that Nkosiyane had said to her he required the information from all his learners. ‘A’ confirmed that the WhatsApp and phone were connected with the same telephone numbers. ‘A’ had lost her phone late in August 2018 and got a new phone in 2019. Nkosiyane had told ‘A’ that it did not matter where he had got her new phone number from. The bad messages had all happened on WhatsApp. ‘A’ one day was at the park as she had finished school when Nkosiyane had phoned to ask about her whereabouts. In 2019 ‘A’ had returned to school, had not been present in the first week and when she returned in the second week she had seen Nkosiyane. Nkosiyane had just walked past her but had looked at her. At the time ‘A’ was in grade 10G as grade 10C was full. After a short while ‘A’ was moved back to grade 10C as Nkosiyane had said he would fail her in History. It was put to ‘A’ that she had never been in his History class. ‘A’ disagreed and said she had given her phone number to him just after class. Furthermore ‘A’ had been in the class taught by Nkosiyane at least twice. ‘A’ denied that the messages on EE bundle pages 7 to 9 had come from her. ‘A’ added that after 26 February 2019 the principal had taken her phone away. It was agreed that another persons’ phone could be used to log into Facebook to send messages. ‘A’ had used the phone belonging to Onke Giuquza. That happened as the battery on the phone for ‘A’ had died and she had used Giuquza’s phone but had not logged off Facebook. JJJ (mother of ‘A’) had told ‘A’ that she was still logged into Facebook. ‘A’ discovered that Nkosiyane had told Giuquza that he would pay her to turn against ‘A’. All the chats in the EE bundle were denied as the emoji used had not belonged to ‘A’. The Facebook account belonged to ‘A’ but had been used by Giuquza in return for money from Nkosiyane. ‘A’ had not wanted to lie so had said she had been in a relationship with Nkosiyane after he had been dismissed. ‘A’ had been friends with Giuquza before Nkosiyane had come between them. ‘A’ had distanced herself from Giuquza when she had started communicating with Nkosiyane. It was put to ‘A’ that the evidence today is that he was told by Anita Ngxaweni that Nkosiyane had said she was lucky to be alive. It was put to ‘A’ that Nkosiyane had told her he loved her as she was threatening him with his job. It was confirmed that the threats had started happening after the principal was already in possession of ‘A’’s phone. The messages prior to 26 February 2019 had come from ‘A’ and thereafter she believed that the messages had come from Giuquza as ‘A’ forgot to log off from Facebook. It was JJJ who told ‘A’ she was still logged into Facebook. ‘A’ had realized that the messages were not from her about two days later. ‘A’ denied she “pinged” Nkosiyane on Facebook to get his attention. It was put to ‘A’ that she had made threats against Nkosiyane that if he did not do as ‘A’ wanted then he would lose his job. It was put to ‘A’ that she had wanted to continue her chats with Nkosiyane and had been flirting with him. This was denied by ‘A’. It was agreed that there had never been any physical interaction between ‘A’ and Nkosiyane. It was further put to ‘A’ that Nkosiyane had commented on the photographs of her and had wanted to meet with her. It was put to ‘A’ that the reason she had continued chatting to Nkosiyane was to continue towards a relationship of intimacy. ‘A’ responded that she had never wanted a relationship with Nkosiyane as he appeared to her like her father. It was put to ‘A’ that if Nkosiyane had succumbed to her threats then we would not be here today. ‘A’ denied making any threats and confirmed that Nkosiyane had threatened to fail her in History. It was confirmed that Nkosiyane had taught ‘A’ during 2017. Each claimed the other had first made contact at that time. It was correct that ‘A’ had been scared and had then attended a school in Paarl. It was said that this was when they started contacting each other and when ‘A’ had lost her phone, such contact had stopped. It was correct that Nkosiyane had seen ‘A’ in the passage at school in around February 2019. ‘A’ was reminded that she had come to the history class of Nkosiyane when in grade 10C saying she had lost her history book.
(7) Nkosiyane had told his union representative about arbitration on 13 January 2020 despite the notice of set down being dated 11 December 2019. They attempted cross-examination and I tried to explain to Nkosiyane how best it could be done. No matter what I tried Nkosiyane seemed not to understand and wanted to state his version. At this time his union representative had left for a case he had at the CCMA. I believed that Nkosiyane would be prejudiced without the assistance of his union representative. It was getting late and I was requested by Dayimani to stop the cross-examination and to rather first hear the evidence of the mother of ‘A’. Both the mother and grandmother had made it clear to Dayimani that they had already given evidence at the disciplinary hearing for Nkosiyane and that this would be the very last day either of them was prepared to come back to the DOE to testify. Taking all circumstances into account I agreed to hear the testimony of ‘A’’s mother (JJJ).
(7) Mother JJJ testified that ‘A’ is her daughter who knows Nkosiyane as he had taught her elder child when she had been at the same school. Referring to charge 2 (a) JJJ confirmed that she had seen Nkosiyane in front of her mother-in-law’s house which is located opposite the primary school. JJJ was aware that it was Nkosiyane as ‘A’ had said to her that he was outside of their home. JJJ became angry and had wanted to confront Nkosiyane but ‘A’ had stopped her as there were other school children walking in the vicinity and she had not wanted them to see anything. Nkosiyane had been in a silver grey car and had called ‘A’ telephonically to say he was waiting outside for her. This incident never sat well with JJJ as she had heard about this teacher who wanted to sleep with her daughter. ‘A’ was sent to school to get an education and not to become a wife for someone. ‘A’ had told JJJ that Nkosiyane had told her that he loved her. JJJ had told ‘A’ to report the matter to the principal. However ‘A’ had initially refused to return to the school. JJJ felt bad about what happened and is familiar with the charges leveled against Nkosiyane – this whole situation had left her worried and exhausted. Nkosiyane had never apologized to ‘A’ or to JJJ nor had he shown any remorse for his actions. The phone battery of ‘A’ had died and ‘A’ had logged into her friend’s Facebook page and had been worried that she had not logged out before returning the phone to Giuquza. JJJ believed that Nkosiyane causes friction between the pupils at the school and JJJ said she was a strict parent. Nkosiyane had asked another learner why ‘A’ had turned away from him as three other girls went to assist ‘A’. Nkosiyane had just laughed at them and turned away. When Nkosiyane had asked other friends what was happening with ‘A’, they did not respond and Nkosiyane had become angry. JJJ was shown a Facebook message between Nkosiyane and another learner which was not acceptable. JJJ gathered that Nkosiyane wanted information about what ‘A’ was doing, having reported Nkosiyane to the principal. Nkosiyane was far too old to be trying to sleep with ‘A’. JJJ at this point was struggling to recall exactly what she had been told by her daughter as the matter was then being handled by the principal. JJJ was unaware of any conspiracy against Nkosiyane.
(8) Under cross-examination, JJJ confirmed that she had seen Nkosiyane in the silver grey car outside her mother-in-law’s house but did not recall what time he had been there. JJJ explained that she did not work every day. It was put to JJJ that Nkosiyane leaves school at 15h00. JJJ confirmed that she had never said how Nkosiyane was aware of where ‘A’ lived and just saw him in the car. It was put to JJJ that perhaps she had seen Nkosiyane driving past as there is no evidence that states he had called ‘A’ to come out to him. JJJ stated that the car had been parked and was not moving. It was put to JJJ that it was plausible for a teacher to check on one of his pupils after school. Furthermore, it was plausible for a teacher to check on a pupil during the day without first making any form of communication. JJJ explained that she was aware that Nkosiyane had wanted her daughter. JJJ was unsure whether ‘A’ had dropped out of school during March to May of 2018. It was put to JJJ that ‘A’ had dropped out of school at that time to look after her son who was ill. JJJ was reminded that the child had been in hospital and no-one else could be found to look after the child who was ill. It was put to JJJ that had Nkosiyane apologized to ‘A’ and her family then they would not be here today. JJJ was unsure about this. It was put to JJJ that Nkosiyane and ‘A’ would have bumped into each other at school and again JJJ was unsure. JJJ denied that she had greeted Nkosiyane when they had bumped into each other near the principals’ office. Nkosiyane felt that he had showed JJJ respect by greeting her and except for the law, he would have made the apology. JJJ could not recall whether the phone of ‘A’ had been taken away from her on a Monday. It was agreed that the principal had taken her phone. JJJ explained that she did not recall all the details due to the stress she had been under at the time when things came to her attention. ‘A’ had told JJJ that Nkosiyane had told her that he would fail her in history. It was put to JJJ that ‘A’ had said that it had been alleged that Nkosiyane had said that ‘A’ would fail history if she never kissed him. JJJ said she could not recall. There were no questions in re-examination. In an answer to a question from me, JJJ stated that her husband was born in 1968.
(9) Arbitration at this point was adjourned as we had run out of time.
(10) Due to the lockdown in response to the Covid-19 pandemic arbitration continued on 11 November 2020 – held virtually. I reminded the parties that Nkosiyane had pleaded guilty to all the charges other than charge 2(a): (2) “You failed to comply with section 28 (2) of the Act in that during January 2019 and / or February 2019 you failed to comply with section 28 (2) of the Constitution of South Africa (Act 108 of 1996) by: (a) visiting and/or standing outside ‘A’’s home”. Furthermore that there were no procedural challenges in this dispute and Nkosiyane was found not guilty of charge (2) (e). Lastly consistency of the employers’ disciplinary action was also in dispute.
(11) In cross-examination, ‘A’ confirmed that on the Facebook (FB) Bundle page 1 it reflected her account and that Nkosiyane had never had access to her phone number. Nkosiyane used to communicate with ‘A’. ‘A’ had once used the phone of Giuquza to log into her account. At that time, the phone belonging to ‘A’ and been taken by the principal. Nkosiyane had visited ‘A’ at her home early in 2019. They had chatted on the WhatsApp group and Nkosiyane had confirmed he was coming to her home to visit. Mother JJJ had wanted to step out to confront Nkosiyane by swearing at him but ‘A’ had stopped her from doing that as other learners were walking past at the time. There were no questions in re-examination.
(12) Pauline Mcuko (principal) testified she had been principal of Wallacedene Secondary School for the past ten years. Nkosiyane is known to Mcuko as he was employed as an educator at the school where he became permanently employed in 2015. On 26 February 2019 shortly after break she was approached by ‘A’ who wanted to tell her something. Mcuko took ‘A’ to her office where she listened to the complaint that Nkosiyane had been sexually harassing her in WhatsApp messages. Mcuko took away the phone from ‘A’ and as is protocol immediately reported the matter to the district social worker. Mcuko had seen that the number from which the WhatsApp messages originated belonged to Nkosiyane. ‘A’ had said that her mother told her to report the matter to Mcuko. In terms of the Employment of Educators Act educators are not permitted to have any relationships with learners. Nkosiyane was aware of this as the educators had been given training in this regard when Mcuko had invited the DOE to do a presentation to staff and axillary workers. Mcuko never spoke about the matter with Nkosiyane other than telling him there was a labour case against him. In response, Nkosiyane had seemed shocked and confused. It seemed to Mcuko that Nkosiyane was not aware of who had reported him and as the investigations progressed, Nkosiyane had known exactly from whom the report had come from. There was a negative impact on the school plus the community from the misconduct of Nkosiyane, others came forward to say they had seen what Nkosiyane was doing and had warned him to stop. A member of the SGB (School Governing Body) had confirmed he had told educators not to get involved with learners and he had seen what Nkosiyane had been doing with ‘A’. The DOE was busy with their investigation into this matter although Nkosiyane had never been suspended. However, Nkosiyane had not marked the learners work since June 2019. A substitute educator was brought in and had to mark this work. School parents whose children who were in the classes of Nkosiyane had been furious and the learners were conflicted. The surrounding areas of the school had problems with gangsters and the learners became divided into two groups. Mcuko had not been informed that Giuquza was to be a witness in this matter. Mcuko had been very disappointed as the trust relationship was broken down as the case evolved and the facts were made known. Nkosiyane had pleaded guilty to the majority of the charges he faced which led Mcuko to the conclusions that Nkosiyane must not return to her school as he had already badly dented the image of the school. Mcuko explained that the village from where she came had nothing to do with this matter and that there had been no conspiracy between herself and the parents. Mcuko stood for all learners and had only worked with the facts which were uncovered. The behavior of Nkosiyane was unconsciously bad and this has not been in the best interests of the learners. The grandmother of ‘A’ had said that she had wanted her grandchildren to be educated which in the case of ‘A’ was doubly important as she was the only girl in the family. There had been a very bad impact on other educators who came forward to report what was being said about the school in the community.
(13) In cross-examination, Mcuko confirmed that Nkosiyane also coached in sports and was a member of the disciplinary committee at the school. In regards to work, Nkosiyane had not marked the learner’s work since June 2019. Mcuko informed Nkosiyane about the case but had not given him any advice. There were no questions in re-examination. In answer to a question from me, Mcuko confirmed that Nkosiyane had taught English and history to grades 8 to 11.
The employee’s version and testimony was as follows:
(14) Qagambile Nkosiyane testified that he had never been at the house of ‘A’ and pointed out that this was not seen in any of the WhatsApp messages. Nkosiyane denied that he had phoned ‘A’ to advise that he was outside her home. Nkosiyane did not recall if he had chatted to ‘A’ during school hours. It was pointed out that it had been established that the dates and times on the WhatsApp messages were incorrect. It was denied that mother JJJ could have seen Nkosiyane outside her home as he never even knew her address. It was not possible that mother JJJ wanted to confront Nkosiyane, had been stopped by ‘A’ as there were other learners walking nearby. Nkosiyane explained that once school ends the educators never leave at the same time as the learners and usually only left about fifteen minutes later. Nkosiyane had pleaded guilty to the charges as those things happened. Nkosiyane had known ‘A’ since 2017 and she had dropped out of school in 2018 which is when he was invited onto Facebook. At the time, ‘A’ was at a different school having given birth to her baby in April or May of 2018. They had exchanged phone numbers and had only ever chatted when ‘A’ was not at the same school and ‘A’ was taking care of her baby after the baby had been hospitalized for a period of time. Nkosiyane explained that they had been flirting. ‘A’ lost her phone in 2018 and thereafter they had no communication. Nkosiyane had run into ‘A’ in the passage of Wallacedene Secondary School in 2019 when she was enrolled to do grade 10. ‘A’ sent him a greeting which Nkosiyane had ignored. ‘A’ had come into the class Nkosiyane was teaching to borrow a history book which she did not have, having registered late for the school year. ‘A’ returned the book after her history class and continued thereafter to keep borrowing the history text book. ‘A’ had given Nkosiyane her phone number, he wrote WhatsApp messages and they continued to chat. The tone used by ‘A’ reverted to the same as when she had not been at the school. Nkosiyane received a “please call me” from ‘A’, the call was returned but Nkosiyane was ignoring her then as she was again a leaner at the school. Nkosiyane answered a further “please call me and during that call ‘A’ asked why he could date other learners and exclude her from meeting up with him. Nkosiyane had explained that it was because she was again a learner at the school. ‘A’ had retorted that she would ruin his career if he did not start dating her. The chats continued as did the threats that ‘A’ would ruin his career. On 15 February 2019 Nkosiyane told ‘A’ to come to his class as he had intended to appeal to her humanity. Nkosiyane is the breadwinner and had four children. Thereafter ‘A’ was made aware that Nkosiyane could not chat with her as she had put his career in jeopardy. Nkosiyane got the message via Facebook that the principal has taken the phone of ‘A’ on 26 February 2019. Nkosiyane had greeted back ‘A’ and then became scarce as he could not continue to interact with ‘A’ as they had done in the past. ‘A’ had asked who would know if they were flirting. Nkosiyane could not continue the chats but ‘A’ still came to borrow the history text book. ‘A’ had said that Nkosiyane would also have to lose, the principal said that charges had been laid against Nkosiyane and contact had to discontinue as ‘A’ was again at the same school. ‘A’ had told the principal and was hell bent on getting Nkosiyane into trouble and hence he had to break off all communications with ‘A’. ‘A’ had “pinged him via Facebook. In the circumstances it was difficult for Nkosiyane to act in a different manner.
(15) In cross-examination, Nkosiyane confirmed he was not denying the charges but wanted it known that he had been under pressure. ‘A’ had put too much pressure on Nkosiyane who had tried to appease ‘A’ so that he did not lose his job. Nkosiyane said that when he had said he loved ‘A’ and wanted to kiss her he had been trying to appease her as he was under pressure. Nkosiyane had never been to the house of ‘A’. It was put to Nkosiyane that it could never be true that an eighteen year old could put him, as an adult, under such pressure as claimed. Nkosiyane was reminded that the phone belonging to Giuquza had been used to log into Facebook. On 17 March 2019 the DOE had arrived at the school and Nkosiyane stopped all communications. Nkosiyane was unsure about what flirting meant. Nkosiyane was reminded that he had said he could not continue with ‘A’ after 15 February 2019 yet then he spoke about telling ‘A’ that he loved her. Nkosiyane confirmed that he was aware that what he did was wrong. Referring to ER bundle page 47 Nkosiyane had said that he knew he should be dismissed but pleaded not to do that as he was new to the field and doing so would have an impact on him and his parents whom he supported financially. Nkosiyane explained that in terms of Ubuntu when a person shows remorse and is humble, he could be forgiven for his transgressions. Nkosiyane had hoped that the chair of his disciplinary hearing would see that Nkosiyane was being humble. Nkosiyane agreed that these were serious transgressions and he would ask the commissioner to look carefully at all the circumstances. Nkosiyane confirmed that he had only ever chatted with ‘A’ and that there had never been any sexual relationship between them. Nkosiyane described his relationship with ‘A’ as only flirting on the phone. Nkosiyane ended the relationship as he was aware that this was not allowed. Referring to ER bundle page 46 in a letter from the union dated 3 May 2019 a plea had been made to impose a sanction short of dismissal as Nkosiyane admitted to having “proposed to the girl last year while she was not at school but they continued to chat on WhatsApp even this year while she was at the school”. Nkosiyane said that ‘A’ was over 16 and had at the time not been at the school where he taught. Their relationship was flirtatious and not sexual. Referring to ER bundle page 43 it was pointed out to Nkosiyane that on 18 February 2019 he had sent a WhatsApp message asking ‘A’ why she had run away from a hug on the Friday. Nkosiyane explained he had been trying to see if ‘A’ had forgiven him and moved on as the chats had to stop. Nkosiyane agreed that he also wanted to know whether ‘A’ would go through with her threats. Nkosiyane said he had never been to the home of ‘A’. Everyone is aware of the colour car he drove as Nkosiyane lives in the area. It was put to Nkosiyane that ‘A’ and mother JJJ had no reason to lie and that Nkosiyane was not being honest. Referring to ER bundle page 12 Nkosiyane in his letter of appeal had written: “In the chats I clearly clarified that we could no longer be in a relationship as she is back at school. Not evading responsibility for his actions but with his analysis of the above facts, he feel that the learner has been used as a conspiracy set up against me”. Nkosiyane reiterated that they only ever had chats and there was no relationship between him and ‘A’. On ER bundle page 13 where Nkosiyane had terminated his services with immediate effect Nkosiyane explained that he thought he needed to show remorse and to be humble. Nkosiyane is seeking to have the entry of his dismissal on Persel to be unlocked. Nkosiyane explained that trust cannot be broken with a single incident. Nkosiyane had worked hard and put in long hours. On the same ER bundle page Nkosiyane had written that he deserved to be punished. It was put to Nkosiyane that therefore he agreed that he deserves to be punished just not dismissed. Nkosiyane said he would be very happy for leniency. There were no questions under re-examination.
(16) In answer to questions from me, Nkosiyane stated that he was thirty five years old and that his wife is unemployed. Nkosiyane said he had flirted as he was having troubles at home which he now saw was an error in judgement.
(17) Onke Giuquza (now age 18) confirmed that her parents had given her consent to testify at arbitration and that she was a grade 11 learner. Giuquza confirmed that she was friends with ‘A’ and that she often saw Nkosiyane on the streets. Giuquza was with ‘A’ when Nkosiyane had driven past in his car. There were no further questions for this witness.
(18) Both parties agreed to send in their closing arguments by no later than 17h00 on 20 November 2020. Closing arguments were received timeously from both parties. I have noted the contents of the respective closing arguments and would point out that in the event that the Xhosa interpreter had not correctly interpreted anything this should have been raised immediately and not just in the closing argument submitted on behalf of Nkosiyane.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
(19) Nkosiyane pleaded guilty to conducting himself in an improper, disgraceful or unacceptable manner in that he sexually harassed ‘A’ a learner at the Wallacedene Secondary School by telling her that he loved her; requesting ‘A’ to be his girlfriend and/or requesting to have a sexual relationship with her; suggesting that ‘A’ meets Nkosiyane after school and/or attempting to hug and/or kiss her. That is all contained in charge 1. In charge 2 Nkosiyane pleaded guilty to sending ‘A’ WhatsApp messages requesting to see her after school and/or enquiring who she was sleeping with; requesting a kiss from her and requesting her to send Nkosiyane a picture. This plea of guilt was entered into at his disciplinary hearing, his appeal and finally at arbitration.
(20) I am therefore only required to determine on a balance of probabilities whether or not Nkosiyane visited or was standing outside the home of ‘A’. Whilst the consistency of the application of discipline had been put into dispute no evidence was led to substantiate this claim which must therefore fail. There were no procedural challenges in this dismissal and the procedure followed by the employer aligns with the provisions of Schedule 8 – Code of Good Conduct: Dismissals of the LRA.
(21) Mcuko raised the point that Nkosiyane had never been suspended although he had not marked the learners work since June 2019. There is confusion regarding when a person should be suspended. In terms of the Employment of Educators Act suspension is dealt with in clause 6 which reads as follows: (1) In the case of serious misconduct in terms of section 17, the employer may suspend the educator on full pay for a maximum period of three months. I have placed emphasis on the word “may”. Suspension is not always mandatory. The fact of Nkosiyane not being suspended does not equate to whether or not the trust relationship is broken. The trust relationship in this instance has been irrevocably broken by the misconduct perpetrated by Nkosiyane on a minor child in the manner in which he had done.
(22) The evidence of both ‘A’ and mother JJJ was consistent in that they saw Nkosiyane parked outside their home. ‘A’ had received a phone call from Nkosiyane telling her that he was outside her home. That call led to ‘A’ and mother JJJ taking a look and both confirmed they saw the silver grey Toyota sedan driven by Nkosiyane outside parked in front of their home. Nkosiyane explained that such a message would not be found in the WhatsApp messages in the bundle. That is because Nkosiyane made a phone call and was not accused of sending a WhatsApp message on that day. I find on a balance of probabilities that Nkosiyane had parked his car outside of the home of ‘A’ and is therefore guilty of charge 2(a).
(23) Nkosiyane misunderstood the meaning of “ubuntu” which means "I am, because you are". In fact, the word Ubuntu is just part of the Zulu phrase "Umuntu ngumuntu ngabantu", which literally means that a person is a person through other people. It does not mean that if you show remorse and are humble that you are forgiven for your transgressions. Nkosiyane repeatedly explained that he had been flirting with ‘A’. When asked what that meant he was unable to explain its meaning. In terms of the Oxford English dictionary, flirting means to behave as though sexually attracted to someone, but playfully rather than with serious intentions. It should be remembered that Nkosiyane pleaded guilty to sexually harassing ‘A’. In terms of the Code of Good practice on sexual harassment in the LRA in clause 3 it states: “Sexual harassment in the working environment is a form of unfair discrimination and is prohibited on the grounds of sex and/or gender and/or sexual orientation.”
(24) Nkosiyane was the adult in this situation and as an educator was in a position of trust to teach and work in the best interests of the learners. There is an age gap of nineteen years between Nkosiyane and ‘A’. It was incumbent on Nkosiyane not to have accepted or responded to advances that ‘A’ might have made towards him. If as stated Nkosiyane was having domestic problems then he should have sought help in that regard. Instead Nkosiyane picked on a minor child and as admitted sexually harassed her over a period of almost three years. The only physical contact made between the two was when Nkosiyane called ‘A’ to his classroom and once the door was closed had attempted to hug her. That is certainly conduct unbecoming of an educator and such conduct is strictly forbidden.
(24) 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 Nkosiyane from a position whereby he is unable to commit further transgressions such as those he has already committed, against the children in his care. In terms of the Employment of Educators Act No. 76 Of 1998 in clause 17 (1) Serious misconduct.— (1) An educator must be dismissed if he or she is found guilty of committing an act of sexual assault on a learner, student or other employees. In section 17 (1) (q) it states that an educator while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner must be dismissed. Nkosiyane was aware that he should have been dismissed and had pleaded for the sake of his parents (whom he supports financially) that he receives a sanction short of dismissal. In terms of the admitted misconduct the sanction of dismissal is mandatory. The entry into force of certain sections of the Children's Act No 38 of 2005 on 1 July 2007 has changed the age of majority in South African law. It is now 18, while it was 21 before (Sec 17 of the Act). I have taken into account that ‘A’ is now eighteen years’ old and at the time of the incidents which started in 2018 was only sixteen years’ old.
(25) Taking all circumstances into account I find on a balance of probabilities that Nkosiyane is guilty of serious misconduct as charged / admitted and that his dismissal is fair on substantive grounds. The decision to dismiss Nkosiyane is one that a reasonable decision maker would make taking into account the best interests of the child. In terms of my findings that the dismissal of Nkosiyane is found to be fair and it is further found that Nkosiyane is not suitable to work again with children in terms of the Children’s Act.
(26) The dismissal of Qaqambile Nkosiyane is found to be fair on both procedural and substantive grounds. Consequently this case is dismissed.
(27) The ELRC is further directed to send a copy of this award to the South African Council for Educators (SACE) for the revoking of Qaqambile Nkosiyane SACE certificate.