ELRC 1048-19/20 WC
ELRC 1048-19/20 WC
Award Date:
20 January 2021
Case Number: ELRC 1048-19/20 WC
Province: Western Cape
Applicant: David Skippers
Respondent: WESTERN CAPE EDUCATION DEPARTMENT
Issue: Unfair Dismissal - Misconduct
Venue: Virtually
Award Date: 20 January 2021
Arbitrator: Retief Olivier
Arbitrator: Retief Olivier
Case No.: ELRC 1048-19/20 WC
Date of Award: 20 January 2021
In the INQUIRY BY ARBITRATOR between:
Western Cape Education Department
(Employer)
and
David Skippers
(Employee)
Employer’s representative: Ms Athne Willemse
Employer’s address: Private Bag X 9114
Cape Town
8000
Telephone: 021 467 2846
Telefax
E-mail:
Employee’s representative: Mr Riedwaan Ahmed (NAPTOSA)
Employee’s address: 6 Park Rd
Rondebosch
7700
Telephone: 021 686 8521
Telefax:
E-mail:
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. This is an inquiry by arbitrator convened in terms of section 188A of the Labour Relations Act 66 of 1995, as amended (the LRA). The employee, Mr David Skippers, is charged with the misconduct related to alleged sexual offences of learners of the Calitzdorp High School. Mr Riedewaan Ahmed, NAPTOPSA official, represented the employee. Ms Athne Willemse, labour relations official, represented the employer, the Western Education Department. In this ruling I shall refer to Mr Skippers as “the employee” and to the Western Education Department as “the employer”. Ms Zefnie Marks acted as an intermediary, as all the employer’s learner witness are minors.
2. The matter was heard on 11 September, 3 November, 4 November and 11 November 2020. The hearing was conducted via zoom and the parties submitted written closing arguments on 1 December 2020. On 11 September 2020 the parties conducted a pre-arb hearing, as the employee Mr Skippers was not in a position to proceed as the nature of charges and witnesses involved had not been provided before the hearing. Presentation of evidence only commenced on 3 November 2020.
3. The proceedings were recorded digitally on zoom.
THE CHARGE AGAINST THE EMPLOYEE
4. The employee was charged with two offences relating to sexual misconduct of learners, all who were minors, and in respect of both charges there were alternative charges framing the alternative charges as a statutory and criminal misconduct;
4.1 In the first charge it was alleged that the employee was guilty of misconduct In respect of article 17(1)(b) of the Employment of Educators Act, Act 76 of 1996, in that during 2019 he sexually assaulted a learner, Learner A, in that he touched his penis and/or grabbed his testicles.
4.2 In the second charge it was alleged that the employee was guilty of misconduct in respect of article 17(1)(b) of the Employment of Educators Act, Act 76 of 1996, in that during 2019 he sexually assaulted a learner, Learner B, by touching his penis.
5. When these charges were put to the employee Mr Skippers he pleaded not guilty to both charges. The alternative charges were withdrawn by the employer.
SUMMARY OF EVIDENCE AND ARGUMENT
6. This ruling does not contain a complete summary of the evidence and argument presented during the proceedings, although I have considered all of it. I summarize salient points in as far as is necessary to substantiate my findings.
EMPLOYER’S EVIDENCE AND SUBMISSIONS
7. The first witness, Mr Andrew Davids, principal at Calitzdorp High-School, testified to how the allegations was brought to his attention and explained why the learners stayed over at Mr Skippers’ home over the weekend of 9 August 2019. He first indicated that the incident happened some-time during June or July, but it was ascertained that it was over the long week-end in August. The learners were going to participate in a rugby match held in George on Saturday 10 August 2019. This was over a long weekend of which the Friday was Women's Day and the learners were not able to stay over in the school hostel, and therefore he asked Mr Skippers whether he would be able to accommodate them. He had asked Mr Skippers because Mr Skippers was also going to drive the learners to George with the school bus. There were 5 learners involved.
8. Regarding the time frames when the matter was reported, Mr Davids testified that this was about a month after the alleged incidents when one of the learners, Learner A, was sent to his office for disciplinary reasons and when he questioned the learner, the learner told him about the incident, explaining that when they stayed over Mr Skippers committed sexual acts by falling on them on their beds where they were sleeping and touching them inappropriately and also entering the bathroom and touching some learners. The learner also stated that this was not the first incident but there was a previous incident, which the learner had reported to his father. Mr Davids testified that he informed the learner’s mother and then also reported the matter to the Education Department. The matter was investigated by the Department, but he was not involved in the investigation.
9. During cross examination the timeframes were Mr Skippers extensively questioned by the employee as he felt that the principal was out to get him. However, it was later established that the matter was reported to the principal on 5 November 2019, almost three months after the incident, and he was questioned why he waited so long in reporting the matter. It was submitted by the employee that an incident occurred in September and the principal was out to get him. Mr Davids denied that he unnecessarily delayed the matter or was out to get Mr Skippers.
10. Ms Athne Williams testified about the process of the investigation and indicated that the matter was reported to the Department on 5 November 2019 and that she was tasked to investigate the matter on 18 November 2019. She had to wait for the necessary authorizations to begin the investigation and considering that it was close to the end of the year and examinations were taking place and it was difficult to get hold of the learners, the investigation only started in February 2020. in February when she investigated the matter she had interviews with the learners as well as the principal and she submitted a report on the 3rd of March 2020, and Mr Skippers were subsequently suspended.
11. Learner A, 16 years old at this time, testified to the incident referred to in Charge 1. This incident occurred before the incident in August where the learner stayed over at Mr Skipper's home. He stated that on a Friday evening after gym he saw Mr Skippers and his friends were sitting in his car outside a club. The educator called him where after he got into the vehicle and was offered alcohol. According to the learner he was sitting in the passenger seat and Mr Skippers sat in the driver’s seat. Mr Skippers proceeded to touch his private parts and he told him to stop. However, Mr Skippers did not stop, until he got out of the car to buy more alcohol (beers). The learner further emphasized that he allowed Mr Skippers to touch his private parts as he was scared.
12. He also testified about the incident at Mr Skippers’ home and stated that all the other boys were in one room and Mr Skippers called him to come to him and lay on his bed with him, but he refused and at some point Mr Skippers then came into the boys room and he fell onto the bed and pushed him against them and touched and groped learner D on the penis. He stated that the applicant remained laying on a bed in the room and they left him alone and went to sleep in the lounge.
13. Learner B, 14 years old, testified to the incident as referred to in Charge 2. He stated that the incident occurred whilst himself and the other learners were in the bathroom. Mr Skippers came in and was standing behind the closed bathroom door when he got out of the shower Mr Skippers touched his penis and hit him on his behind. The other boys in the bathroom saw what happened. He felt unhappy about what happened but did not report it to any one at that time as he did not want to talk about it, but he did say what happened when the investigation was done. He also stated that later Mr Skippers came to the room and fell on the bed and they left him laying there. During cross examination when it was put to him that Mr Skippers accidentally touched him he denied it and said it was a deliberate action as the applicant had touched him and had not just brushed against him. Mr Skippers touched his private parts and then slapped him on his behind.
14. Learners D, 14 years old, testified to the incidents that transpired the Friday evening and corroborated Learner B’s version that Mr Skippers touched his penis in the bathroom. Furthermore, he also testified that Mr Skippers touched himself on his buttocks. During cross examination it was put to the learner that Mr Skippers came to the bathroom to check on the learners as they were in the bathroom for a while and the space in the bathroom was crowded so it could have been that he touched the learner’s private parts by accident. He reiterated that it was not an accident.
15. Learners C, 16 years old, testified that on the Friday evening Mr Skippers had friends over and they were drinking. Mr Skippers was drunk and came to their room and fell on to them and he then just remained laying there on the bed sleeping and they left the room. He stated Mr Skippers touched learner B’s thigh. He also confirmed that the applicant came into the bathroom and touched learner B and slapped him on his buttocks. Learner E, 16 years old also testified and confirmed that Mr Skippers had come into the room on the Friday evening that he was drunk that he fell on them and that they then went to sleep in the lounge. He also confirmed that he had seen Mr Skippers touch learner B on his penis while he was in the shower.
16. In closing arguments it was submitted that during Mr Skippers’ evidence in chief he testified that he and his friends were sitting in his car in the parking area of Seerpoort, a club/ pub in Calitzdorp. He further highlighted that the learner got into the car and one of his friends offered him a glass of beer. In the first instance Mr Skippers should not have allowed the learner to even get into the car, if he knew he would not be able to reprimand his friends or the learner. He allowed his friends to offer the underaged learner alcohol in the presence. Mr Skippers further testified that he sat in the back seat and not in the driver’s seat as highlighted by Learner A. He justified this by saying it is unusual for him to drive when he is under the influence of alcohol. However, the learner never said they drove anywhere, and this was confirmed by the educator. In light in this, it is more probable that Mr Skippers was sitting in the driver’s seat next to the learner and that he did in fact touch the learner’s private parts. If Mr Skippers allowed his friends to give alcohol to a minor it is disturbing to think about what he is still capable of or what he will allow to happen in his presence.
17. Regarding the incidents on the Friday evening it was submitted that all the learners who testified all confirmed the incidents that occurred and that Mr Skippers entered the room that he was drunk that he fell onto the boys and touched them inappropriately, and they all confirmed the incident in the bathroom where he touched learner B on his private parts and slapped him on his buttocks. During cross examination the learner stood by his version that it was not done by accident. Mr Skippers admitted that at that stage of the evening he was already drunk as he had been drinking since 15h00 the afternoon. However, he still denies touching the learner’s penis, even though three sober minded learners witnessed and testified to it. In this instance, the learners’ versions are once again more probable than that of Mr Skippers who was under the influence of alcohol. In Mr Skippers’ own testimony, he also admits that he passed out after he fell when Learner A grabbed the educator’s legs with his legs. It was submitted that that Mr Skippers was under the influence of alcohol during both incidents as referred to in the Charge Sheet, therefore the learners’ testimonies should be accepted as the truth.
18. Cognizance is taken of the fact that Mr Skippers was in a position of trust, being an educator who is expected, in terms of Item 3 Sub-Clause 3.6 of the Code of Professional Ethics as contained in the South African Council for Educators Act 31 of 2000, to refrain from improper physical contact with learners. The conduct of Mr Skippers cannot be condoned and is totally unacceptable. Mr Skippers’ actions constitutes serious misconduct and, thus warrants action.
19. It was further submitted that child sexual abuse often involves exploitation and the use of coercion in the form of rape and harassment, described as follows: “verbal abuse; nudity; undressing or exposing sexual organs; covertly watching a nude child; intimate kissing; interfering with a child in a sexual manner; forcing a child to engage in a sexual act; sexual intercourse with a child; exposing a child to pornography and / or forcing a child to pose for pornographic material, touching or fondling the child’s body, touching the child’s genitals with the mouth, attempts to make the child arouse sexually.
20. It goes without saying that an educator cannot do such things to a learner. The employee made himself guilty of child sexual abuse. The conduct of the employee is of a serious nature as he misused his position of trust as the loco parentis. Mr Skippers, as an educator is supposed to exercise the degree of care that a diligent father would exercise towards his family and ought to have known that his behaviour infringes on the complainants’ right to bodily integrity. It was submitted that the Department has proven its case on a balance of probabilities and that Mr Skippers should be found guilty as charged and a sanction of dismissal should be imposed.
EMPLOYEE’S EVIDENCE AND SUBMISSIONS
21. Mr Skippers’ in evidence in chief testified to the decision that led to the learners staying at his place. He further highlighted that the learners informed him the Thursday that they had bought themselves alcohol “box-wine” which they hid in one of their bags. He took the alcohol from the learners and informed them that they had no right to bring alcohol into his house. However, later that evening, during dinner, he gave each of the learners a glass of the alcohol. On Friday, he invited one of his friends, Mr Gysman and they drank the wine the learners bought. The two of them finished the box of wine and later that evening more of his friends came over with their own alcohol. Himself and his friends drank the alcohol outside on the porch, however later that evening they moved inside as it started getting cold.
22. He gave the learners supper where after they went to bath. After a while he went to check on the learners as they took quite some time in the bathroom. When he got in the bathroom some of the learners were busy drying themselves and Learner B got out of the shower. He then hit Learner B on his upper thigh because he got out of the shower while he was still wet. Learner A was not in the bathroom. Learner D told him to go out of the bathroom and he then grabbed a sandal “plakkie” and hit him with it and the learner then grabbed his arms and he then left them and went out back to his friends. Later he went to the boy’s room to see if everything was ok and he saw that they had all been smoking and the room was covered in smoke. Learner A grabbed his legs and tripped him and he fell onto the bed on Learner D. the learners then ran out of the room. He just kept laying there and fell asleep. Later he woke up and went to the lounge and sent them back to their room.
23. The next morning they got up and made themselves ready and he took them to George in the bus for their rugby game and on the way they also picked up other learners in Bergsig. He also stated that this was not the first time that learners had stayed over in his house as often during functions when the hostel learners needed accommodation, they stayed with him.
24. Regarding the alleged incident at the at the pub “Seerpoot” he stated that he was parked in the parking area and often when he was parked there learners would came by they would come to him and greet him. This also happened on that evening when he was with his friends in the parking area and Learner A came over to him and they talked and the learner got into the car, sitting on the passenger side in front. They were drinking beer and his friends offered the learner a beer, and when the beers were finished he got out to go and buy some more beers and when they came back the learner had left. He denied that he had touched the learner stating that he was in fact sitting in the back seat, and one of his friends was in the front driver seat, so he could not have touched the learner.
25. He stated that learner A was a learner with disciplinary problems and he often had to reprimand him and on the day when he sent the learner to the principal because of his ill-discipline, the learner made the allegations about him to the principal because the learner had been warned that he will be suspended for his ill-discipline. He assumed this is why the learner made the allegations against him so that he would not be suspended.
26. He further stated that he was very upset how he was treated, particular also by the principal as the alleged incident at his home happened in August 2019 and he was only charged and suspended in March 2020. The principal had known about these allegations but did not do anything about it until there was an incident in September 2019 between him and the principal and the alleged incident was only reported to the Department by the principal in November 2019. He submitted that the principal acted in bad faith. (At this point during his testimony it was however confirmed that the incident was only reported by Learner A on the 5th of November and that the principal took immediate action and reported the matter to the Department.).
27. During cross examination he acknowledged that on the Friday of the alleged incidents that at the stage of the evening he was already drunk and in a “vibe” as he had been drinking since 15h00 the afternoon. However, he still denied touching leaners B’s penis, saying that he only slapped him on his buttocks with his hand stating that if he had touched learner B, it was accidently and he was not aware of it. He admitted that he went to the boy’s room and fell on to the bed and fell on to Learner D, but denied that he had touched him inappropriately and in any case no charge was leveled against him in respect of Learner D. Regarding the alleged incident in his car he also acknowledged that he was drinking and in a “vibe” when the Learner A got into his car. He also submitted that offering the learners wine during the supper that there was nothing wrong with that, as this happened in many households where children had drinks with their parents.
28. Two learners, both in grade 12 and 18 years old, Mr Kayron Prins And Mr Justin McMillan testified that they had on occasion stayed over in the home of Mr Skippers but nothing untoward ever happened. They acknowledged however that they were not present during the alleged incident in August 2019.
29. In closing arguments on behalf of Mr Skippers it was submitted he pleaded not guilty to the charge but it was noted that he did not offer a bare denial on charge 2, and testified that the possibility existed that he could have, given the circumstances on the day, have touched learner B, but definitely not to commit an act of sexual assault. He did offer a bare denial on charge 1 as it relates to the allegations made by learner A.
30. Referring to a Wikipedia definition of sexual assault and the British Sexual Offences Act 2003 it was submitted that a sexual assault is defined as an instance where there is the intentional touching of another person, the touching is sexual and the other person does not consent to the touching, and the person touching does not reasonably believe that the other person consents. The South African Criminal Law Sexual Offences and Related Matters amendment Act created the offence of sexual assault, replacing a common-law offence of indecent assault. "Sexual assault" is defined as the unlawful and intentional sexual violation of another person without their consent. The Act's definition of "sexual violation" incorporates a number of sexual acts, including any genital contact that does not amount to penetration as well as any contact with the mouth designed to cause sexual arousal. Non-consensual acts that involve actual penetration are rape rather than sexual assault.
31. It is submitted that in order for the employee to be found guilty of sexual assault in this instance, on the acknowledgement that “the possibility existed that he could given the circumstances on the day, have touched Learner B on the thigh in an attempt at getting his attention,..” certain elements are sought to be met. One such key element is that of intention, as is clear in considered the reading of the above. That intention has both a subjective and an objective test. Intention is an enquiry into the subjective state of mind of an accused at the time of the alleged offence. Intention it is expressed then, is concerned ultimately with what an accused foresaw, it is not what the accused ought to have foreseen or should have foreseen. Therefor it is absurd to speak of an accused having to reasonably have foreseen, because this conflates the objective test perspective of what is reasonable with the purely subjective concern of the test of intention. It is clear that from testimony by the employee, that in the possible event of having touched “learner B” on his thigh, there was no sexual intention in the action. The further argument is that it is clear from evidence presented, that the pattern of conduct from the employee is inconsistent with his intention to have sexually assaulted the learner.
32. It is further submitted that one of the rules of evidence traditionally provided that the evidence of a single witness should be treated with caution. Regarding charge 1 involving Learner A, the employee pleads not guilty to the charge. The testimony of the learner as witness was fraught with inconsistency and non-corroboration and in conflict with testimony presented by the other learners. The witnesses’ testimony were contradictory on quite a number of issues relating to the charges, as well as incidents ( referring to the incident specifically where it is alleged that the employee touched the private parts of Learner B), although no charge was brought against the employee in this regard. The evidence presented by the witnesses was not credible or reliable to sustain a guilty finding on a balance of probabilities.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
33. The disciplinary charges levelled at Mr Skippers as noted is of alleged misconduct, being the sexual assault of learners. It should also be noted that these learners are all minors, and two of the learners were only 13 years old when the incidents occurred. It is for the Employer to prove his guilt of the charge on a balance of probabilities. If he is found to be guilty, an appropriate sanction must be imposed. Considering that these offences relate to the sexual assault of a learner in terms of Section 17(b) of the Employment of Educators Act 76 of 1998, there are very specific considerations for an arbitrator. Where an educator is guilty of misconduct in terms of section 17 the sanction of dismissal is mandatory and an arbitrator has no discretion to impose any other sanction, irrespective of mitigating circumstances.
34. A further consideration, which is also acknowledged in Collective Agreement 3 of 2018 in the ELRC is that in dealing with matters of this kind according to Section 2 28(2) of the Constitution of South Africa, the best interests of the child should be paramount. In the practice note 1 of 2018 issued by the ELRC, It is noted that the Constitutional Court has held that Section 28(2) of the Constitution imposes an obligation 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. Statutes must be interpreted and the common law developed in a manner that favours protecting and advancing the interests of children. Courts and arbitrators are bound to give consideration to the effect their decisions will have on the lives of children; not only the life of the child who is a victim of sexual misconduct, but also the lives of learners in general who have right to be protected against sexual abuse from educators.
35. The employee Mr Skippers argued that he was not guilty of the charges, and submitted that such a finding should be made based on certain key premises, one being the probability of the different versions of the alleged incidents, the principle of the law of evidence and the credibility of witnesses. in terms of legal principles. It was strongly argued that there is no basis to find that there was any intent from the employee to commit an act of sexual assault, or even that he may reasonably have foreseen, even where the employee had acknowledged that he may have accidentally touched the learner.
36. As noted in the ELRC practice note the elements of sexual assault are, a) conduct of a sexual nature, b) which results in the victim's sexual integrity being impaired, or inspiring a belief that it will be impaired, c) unlawfulness, meaning that there must not be a justification ground for the action, such as for example the consent of the victim and d) intention to commit the misconduct, in other words accidental unintentional bodily contact is excluded from the definition.
37. The test to be applied In determining whether conduct has a 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 it occurred words and gestures accompanying the act and all other circumstances surrounding the conduct will be relevant, 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 including other forms of intentional conduct of a sexual nature, such as kissing on the lips and touching or caressing of buttocks or breasts of a victim.
38. Without repeating all the evidence submitted by the learners, I do find that there is sufficient evidence to determine that the employee Mr Skippers touched the buttocks and private parts of learners and I do not find that this happened unintentionally. Learner B, the victim and key witness in respect of the charge 2 was only 13 years old at the time of the incident and I find that when he testified his testimony was clear and concise and when cross-questioned he was not swayed. His evidence was also corroborated on the key aspects of the allegation of being touched on his penis and slapped on the buttocks by other learners who were with him in the bathroom. Those who saw him being touched on his private parts were equally convinced that this was just not an accidental incident. I also find that the demeanor of Learner B when he testified was that of a child who is distraught by what happened to him and the fact that he did not immediately report the matter, but only opened up when the matter was investigated some 6 months later does not in any way diminish his evidence.
39. The contradictions that the employee refers to is in relation to issues such as whether all the learners were in the bathroom at that time, or only 4 of the learners, as there was also evidence that learner A was not in the bathroom at that time, it does not change the key aspects relating to the assault of learner B. It should be noted that there is no statutory requirement in a law that a child's evidence always has to be corroborated. Determining the weight to be satisfied with the child's evidence, the trustworthiness of a young witness depends on factors such as his ability to observe, re-collect and narrate in respect of the specific matter to which he is required to testify, as per Woji v Santam Insurance Co Ltd (1981) (1) SA 1020. Having considered leaner B’s testimony, I find that he was a credible and trustworthy witness. In the matter of Old Mutual Life Insurance SA v Makanda and Others (JR 1246/18 (2019) ZALCJHB 285, it was also stated that Commissioners should not require corroborating evidence as evidence of sexual offences, as that would elevate the test to that of beyond reasonable doubt.
40. Other contradictions that the employee refers to were contradictions from the learners as to who was sitting where, and who was lying on the bed and who did the employee fall onto when he entered the room later on that Friday evening. Regarding to what occurred in the room where the learners were sleeping there was no specific charge related to what occurred in the room where the leaners were supposed to sleep, as pointed out by the employee. However Mr Skippers on his own version stated that he fell onto learner D, after he had been tripped, did not dispute that he was drunk and just lay there after he fell and passed out, and slept on. Although evidence was submitted by learners that when this occurred and he fell onto learner D, he had touched learner D on his private parts, there was no specific charge and can not be considered in terms of determining whether he was guilty on the other charges. The evidence however around the particular circumstances of that Friday evening was that the employee was drinking wine all afternoon and became so drunk that he in fact fell down in the room and just lay there and fell asleep does provides a context of an educator who acted wholly inappropriately and irresponsibly, at a time that he as educator was in loco parentis. The state of the employee that evening also places a question mark about the credibility of his evidence, and the evidence of the two older learners that he called to testify on his behalf was not relevant in respect of the circumstances and events of that evening.
41. Regarding the argument by the employee that he may have inadvertently or accidentally touched learner B and that he had no sexual intention and was therefore unaware that his actions were inappropriate I do not find it convincing considering what I have stated above. It should also be noted that in the matter of Pillay v South African Postal Services (D 407/10) (2012) ZALCD 21 the Court held that the commissioner’s conclusion that the employee had touchy mannerisms and was unaware of his actions and therefore did not have the requisite intention to commit sexual harassment, was wrong in law. The award was set aside and substituted with an award that the employee had committed sexual-harassment.
42. Having considered all the evidence in relation to Charge 2 involving learner B I find that as referred to in Marapula & others v Consteen (Pty) Ltd (1999) 8 BLLR 829 LAC it was held that the employer’s onus is discharged if “the employer can show by credible evidence that its version is the more probable and acceptable version and it’s witnesses were credible”. I find that the employer’s evidence is credible and I find on a balance of probability that the employer has proven the allegations that the applicant is guilty of the charge of sexual assault.
43. Regarding Charge 1 in relation to the incident at the pub/club involving Learner A the employee argued that there is no convincing evidence and that the evidence of a single witness in that respect should be treated with caution. it should be noted that the cautionary rule is no longer applicable, as per the ruling in Director of Public Prosecutions v S (2000) SA 711 (T). An arbitrator should however still determine that the uncorroborated evidence is truthful on a balance of probability. Considering the totality of the evidence and that it was not disputed that Learner A, 15 years old and under age at that time, was invited into the vehicle of the employee and was offered beer to drink, whilst the employee and three friends were sitting drinking in a public parking area, again demonstrated the total disregards of the employee’s professional ethics as argued by the employer. Whilst it is acknowledged that this is not a charge that the employee faced, he was in a position of trust as an educator and inviting a learner of the age of 15 years to drink with him in the vehicle was totally inappropriate, and in fact unlawful.
44. As already noted above in Old Mutual Life Insurance v Makanda and Others (JR 1246/18) (2019) ZALCJHB 285, it was stated that the evidence of a complainant in sexual offences does not require corroborating evidence as that would elevate the test to that of beyond reasonable doubt. In the case of Compass Group Southern Africa (Pty) Ltd v CCMA & others (JR 633/16) the court pointed out that once the employer provides prima facie proof of the misconduct as alleged, the evidentiary burden shifts to the employee to prove his own defense. If the employee then fails to put up a defense or fails to prove his defense the employer’s prima facie proof of the misconduct, becomes conclusive proof and the employer has then discharged the overall onus that always rested with it. I find it significant that the employee testified that there were three friends with him and he could have called any of those three friends to rebut the evidence of the employer in this instance, but failed to do so. In the light of the above rulings I therefore find that the evidence presented by Learner A was not refuted and on a balance of probability I find that the employee was also guilty of Charge 1 and that he committed an offence of sexual assault of learner A.
RULING
45. The employee Mr Skippers is guilty of sexual assault.
46. Considering that I have found the employee Mr Skippers guilty of Section 17(b) offences of the Employment of Educators Act 76 of 1998, dismissal is the mandatory sanction. Mr Skippers is dismissed with immediate effect.
47. In terms of section 120 of the Children's Act, Act 38 of 2005, I find that the employee Mr Skippers is unsuitable to work with children. The ELRC as the administrators of this Sec 188A enquiry is there for entitled to provide for a further hearing or process for the parties to make submissions as to whether the Director General: Department of Social Development should be informed of these findings in terms of section 120 and 122 of the Children's Act, Act 38 of 2005.
ELRC SENIOR COMMISSIONER: Retief Olivier
Province: Western Cape
Applicant: David Skippers
Respondent: WESTERN CAPE EDUCATION DEPARTMENT
Issue: Unfair Dismissal - Misconduct
Venue: Virtually
Award Date: 20 January 2021
Arbitrator: Retief Olivier
Arbitrator: Retief Olivier
Case No.: ELRC 1048-19/20 WC
Date of Award: 20 January 2021
In the INQUIRY BY ARBITRATOR between:
Western Cape Education Department
(Employer)
and
David Skippers
(Employee)
Employer’s representative: Ms Athne Willemse
Employer’s address: Private Bag X 9114
Cape Town
8000
Telephone: 021 467 2846
Telefax
E-mail:
Employee’s representative: Mr Riedwaan Ahmed (NAPTOSA)
Employee’s address: 6 Park Rd
Rondebosch
7700
Telephone: 021 686 8521
Telefax:
E-mail:
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. This is an inquiry by arbitrator convened in terms of section 188A of the Labour Relations Act 66 of 1995, as amended (the LRA). The employee, Mr David Skippers, is charged with the misconduct related to alleged sexual offences of learners of the Calitzdorp High School. Mr Riedewaan Ahmed, NAPTOPSA official, represented the employee. Ms Athne Willemse, labour relations official, represented the employer, the Western Education Department. In this ruling I shall refer to Mr Skippers as “the employee” and to the Western Education Department as “the employer”. Ms Zefnie Marks acted as an intermediary, as all the employer’s learner witness are minors.
2. The matter was heard on 11 September, 3 November, 4 November and 11 November 2020. The hearing was conducted via zoom and the parties submitted written closing arguments on 1 December 2020. On 11 September 2020 the parties conducted a pre-arb hearing, as the employee Mr Skippers was not in a position to proceed as the nature of charges and witnesses involved had not been provided before the hearing. Presentation of evidence only commenced on 3 November 2020.
3. The proceedings were recorded digitally on zoom.
THE CHARGE AGAINST THE EMPLOYEE
4. The employee was charged with two offences relating to sexual misconduct of learners, all who were minors, and in respect of both charges there were alternative charges framing the alternative charges as a statutory and criminal misconduct;
4.1 In the first charge it was alleged that the employee was guilty of misconduct In respect of article 17(1)(b) of the Employment of Educators Act, Act 76 of 1996, in that during 2019 he sexually assaulted a learner, Learner A, in that he touched his penis and/or grabbed his testicles.
4.2 In the second charge it was alleged that the employee was guilty of misconduct in respect of article 17(1)(b) of the Employment of Educators Act, Act 76 of 1996, in that during 2019 he sexually assaulted a learner, Learner B, by touching his penis.
5. When these charges were put to the employee Mr Skippers he pleaded not guilty to both charges. The alternative charges were withdrawn by the employer.
SUMMARY OF EVIDENCE AND ARGUMENT
6. This ruling does not contain a complete summary of the evidence and argument presented during the proceedings, although I have considered all of it. I summarize salient points in as far as is necessary to substantiate my findings.
EMPLOYER’S EVIDENCE AND SUBMISSIONS
7. The first witness, Mr Andrew Davids, principal at Calitzdorp High-School, testified to how the allegations was brought to his attention and explained why the learners stayed over at Mr Skippers’ home over the weekend of 9 August 2019. He first indicated that the incident happened some-time during June or July, but it was ascertained that it was over the long week-end in August. The learners were going to participate in a rugby match held in George on Saturday 10 August 2019. This was over a long weekend of which the Friday was Women's Day and the learners were not able to stay over in the school hostel, and therefore he asked Mr Skippers whether he would be able to accommodate them. He had asked Mr Skippers because Mr Skippers was also going to drive the learners to George with the school bus. There were 5 learners involved.
8. Regarding the time frames when the matter was reported, Mr Davids testified that this was about a month after the alleged incidents when one of the learners, Learner A, was sent to his office for disciplinary reasons and when he questioned the learner, the learner told him about the incident, explaining that when they stayed over Mr Skippers committed sexual acts by falling on them on their beds where they were sleeping and touching them inappropriately and also entering the bathroom and touching some learners. The learner also stated that this was not the first incident but there was a previous incident, which the learner had reported to his father. Mr Davids testified that he informed the learner’s mother and then also reported the matter to the Education Department. The matter was investigated by the Department, but he was not involved in the investigation.
9. During cross examination the timeframes were Mr Skippers extensively questioned by the employee as he felt that the principal was out to get him. However, it was later established that the matter was reported to the principal on 5 November 2019, almost three months after the incident, and he was questioned why he waited so long in reporting the matter. It was submitted by the employee that an incident occurred in September and the principal was out to get him. Mr Davids denied that he unnecessarily delayed the matter or was out to get Mr Skippers.
10. Ms Athne Williams testified about the process of the investigation and indicated that the matter was reported to the Department on 5 November 2019 and that she was tasked to investigate the matter on 18 November 2019. She had to wait for the necessary authorizations to begin the investigation and considering that it was close to the end of the year and examinations were taking place and it was difficult to get hold of the learners, the investigation only started in February 2020. in February when she investigated the matter she had interviews with the learners as well as the principal and she submitted a report on the 3rd of March 2020, and Mr Skippers were subsequently suspended.
11. Learner A, 16 years old at this time, testified to the incident referred to in Charge 1. This incident occurred before the incident in August where the learner stayed over at Mr Skipper's home. He stated that on a Friday evening after gym he saw Mr Skippers and his friends were sitting in his car outside a club. The educator called him where after he got into the vehicle and was offered alcohol. According to the learner he was sitting in the passenger seat and Mr Skippers sat in the driver’s seat. Mr Skippers proceeded to touch his private parts and he told him to stop. However, Mr Skippers did not stop, until he got out of the car to buy more alcohol (beers). The learner further emphasized that he allowed Mr Skippers to touch his private parts as he was scared.
12. He also testified about the incident at Mr Skippers’ home and stated that all the other boys were in one room and Mr Skippers called him to come to him and lay on his bed with him, but he refused and at some point Mr Skippers then came into the boys room and he fell onto the bed and pushed him against them and touched and groped learner D on the penis. He stated that the applicant remained laying on a bed in the room and they left him alone and went to sleep in the lounge.
13. Learner B, 14 years old, testified to the incident as referred to in Charge 2. He stated that the incident occurred whilst himself and the other learners were in the bathroom. Mr Skippers came in and was standing behind the closed bathroom door when he got out of the shower Mr Skippers touched his penis and hit him on his behind. The other boys in the bathroom saw what happened. He felt unhappy about what happened but did not report it to any one at that time as he did not want to talk about it, but he did say what happened when the investigation was done. He also stated that later Mr Skippers came to the room and fell on the bed and they left him laying there. During cross examination when it was put to him that Mr Skippers accidentally touched him he denied it and said it was a deliberate action as the applicant had touched him and had not just brushed against him. Mr Skippers touched his private parts and then slapped him on his behind.
14. Learners D, 14 years old, testified to the incidents that transpired the Friday evening and corroborated Learner B’s version that Mr Skippers touched his penis in the bathroom. Furthermore, he also testified that Mr Skippers touched himself on his buttocks. During cross examination it was put to the learner that Mr Skippers came to the bathroom to check on the learners as they were in the bathroom for a while and the space in the bathroom was crowded so it could have been that he touched the learner’s private parts by accident. He reiterated that it was not an accident.
15. Learners C, 16 years old, testified that on the Friday evening Mr Skippers had friends over and they were drinking. Mr Skippers was drunk and came to their room and fell on to them and he then just remained laying there on the bed sleeping and they left the room. He stated Mr Skippers touched learner B’s thigh. He also confirmed that the applicant came into the bathroom and touched learner B and slapped him on his buttocks. Learner E, 16 years old also testified and confirmed that Mr Skippers had come into the room on the Friday evening that he was drunk that he fell on them and that they then went to sleep in the lounge. He also confirmed that he had seen Mr Skippers touch learner B on his penis while he was in the shower.
16. In closing arguments it was submitted that during Mr Skippers’ evidence in chief he testified that he and his friends were sitting in his car in the parking area of Seerpoort, a club/ pub in Calitzdorp. He further highlighted that the learner got into the car and one of his friends offered him a glass of beer. In the first instance Mr Skippers should not have allowed the learner to even get into the car, if he knew he would not be able to reprimand his friends or the learner. He allowed his friends to offer the underaged learner alcohol in the presence. Mr Skippers further testified that he sat in the back seat and not in the driver’s seat as highlighted by Learner A. He justified this by saying it is unusual for him to drive when he is under the influence of alcohol. However, the learner never said they drove anywhere, and this was confirmed by the educator. In light in this, it is more probable that Mr Skippers was sitting in the driver’s seat next to the learner and that he did in fact touch the learner’s private parts. If Mr Skippers allowed his friends to give alcohol to a minor it is disturbing to think about what he is still capable of or what he will allow to happen in his presence.
17. Regarding the incidents on the Friday evening it was submitted that all the learners who testified all confirmed the incidents that occurred and that Mr Skippers entered the room that he was drunk that he fell onto the boys and touched them inappropriately, and they all confirmed the incident in the bathroom where he touched learner B on his private parts and slapped him on his buttocks. During cross examination the learner stood by his version that it was not done by accident. Mr Skippers admitted that at that stage of the evening he was already drunk as he had been drinking since 15h00 the afternoon. However, he still denies touching the learner’s penis, even though three sober minded learners witnessed and testified to it. In this instance, the learners’ versions are once again more probable than that of Mr Skippers who was under the influence of alcohol. In Mr Skippers’ own testimony, he also admits that he passed out after he fell when Learner A grabbed the educator’s legs with his legs. It was submitted that that Mr Skippers was under the influence of alcohol during both incidents as referred to in the Charge Sheet, therefore the learners’ testimonies should be accepted as the truth.
18. Cognizance is taken of the fact that Mr Skippers was in a position of trust, being an educator who is expected, in terms of Item 3 Sub-Clause 3.6 of the Code of Professional Ethics as contained in the South African Council for Educators Act 31 of 2000, to refrain from improper physical contact with learners. The conduct of Mr Skippers cannot be condoned and is totally unacceptable. Mr Skippers’ actions constitutes serious misconduct and, thus warrants action.
19. It was further submitted that child sexual abuse often involves exploitation and the use of coercion in the form of rape and harassment, described as follows: “verbal abuse; nudity; undressing or exposing sexual organs; covertly watching a nude child; intimate kissing; interfering with a child in a sexual manner; forcing a child to engage in a sexual act; sexual intercourse with a child; exposing a child to pornography and / or forcing a child to pose for pornographic material, touching or fondling the child’s body, touching the child’s genitals with the mouth, attempts to make the child arouse sexually.
20. It goes without saying that an educator cannot do such things to a learner. The employee made himself guilty of child sexual abuse. The conduct of the employee is of a serious nature as he misused his position of trust as the loco parentis. Mr Skippers, as an educator is supposed to exercise the degree of care that a diligent father would exercise towards his family and ought to have known that his behaviour infringes on the complainants’ right to bodily integrity. It was submitted that the Department has proven its case on a balance of probabilities and that Mr Skippers should be found guilty as charged and a sanction of dismissal should be imposed.
EMPLOYEE’S EVIDENCE AND SUBMISSIONS
21. Mr Skippers’ in evidence in chief testified to the decision that led to the learners staying at his place. He further highlighted that the learners informed him the Thursday that they had bought themselves alcohol “box-wine” which they hid in one of their bags. He took the alcohol from the learners and informed them that they had no right to bring alcohol into his house. However, later that evening, during dinner, he gave each of the learners a glass of the alcohol. On Friday, he invited one of his friends, Mr Gysman and they drank the wine the learners bought. The two of them finished the box of wine and later that evening more of his friends came over with their own alcohol. Himself and his friends drank the alcohol outside on the porch, however later that evening they moved inside as it started getting cold.
22. He gave the learners supper where after they went to bath. After a while he went to check on the learners as they took quite some time in the bathroom. When he got in the bathroom some of the learners were busy drying themselves and Learner B got out of the shower. He then hit Learner B on his upper thigh because he got out of the shower while he was still wet. Learner A was not in the bathroom. Learner D told him to go out of the bathroom and he then grabbed a sandal “plakkie” and hit him with it and the learner then grabbed his arms and he then left them and went out back to his friends. Later he went to the boy’s room to see if everything was ok and he saw that they had all been smoking and the room was covered in smoke. Learner A grabbed his legs and tripped him and he fell onto the bed on Learner D. the learners then ran out of the room. He just kept laying there and fell asleep. Later he woke up and went to the lounge and sent them back to their room.
23. The next morning they got up and made themselves ready and he took them to George in the bus for their rugby game and on the way they also picked up other learners in Bergsig. He also stated that this was not the first time that learners had stayed over in his house as often during functions when the hostel learners needed accommodation, they stayed with him.
24. Regarding the alleged incident at the at the pub “Seerpoot” he stated that he was parked in the parking area and often when he was parked there learners would came by they would come to him and greet him. This also happened on that evening when he was with his friends in the parking area and Learner A came over to him and they talked and the learner got into the car, sitting on the passenger side in front. They were drinking beer and his friends offered the learner a beer, and when the beers were finished he got out to go and buy some more beers and when they came back the learner had left. He denied that he had touched the learner stating that he was in fact sitting in the back seat, and one of his friends was in the front driver seat, so he could not have touched the learner.
25. He stated that learner A was a learner with disciplinary problems and he often had to reprimand him and on the day when he sent the learner to the principal because of his ill-discipline, the learner made the allegations about him to the principal because the learner had been warned that he will be suspended for his ill-discipline. He assumed this is why the learner made the allegations against him so that he would not be suspended.
26. He further stated that he was very upset how he was treated, particular also by the principal as the alleged incident at his home happened in August 2019 and he was only charged and suspended in March 2020. The principal had known about these allegations but did not do anything about it until there was an incident in September 2019 between him and the principal and the alleged incident was only reported to the Department by the principal in November 2019. He submitted that the principal acted in bad faith. (At this point during his testimony it was however confirmed that the incident was only reported by Learner A on the 5th of November and that the principal took immediate action and reported the matter to the Department.).
27. During cross examination he acknowledged that on the Friday of the alleged incidents that at the stage of the evening he was already drunk and in a “vibe” as he had been drinking since 15h00 the afternoon. However, he still denied touching leaners B’s penis, saying that he only slapped him on his buttocks with his hand stating that if he had touched learner B, it was accidently and he was not aware of it. He admitted that he went to the boy’s room and fell on to the bed and fell on to Learner D, but denied that he had touched him inappropriately and in any case no charge was leveled against him in respect of Learner D. Regarding the alleged incident in his car he also acknowledged that he was drinking and in a “vibe” when the Learner A got into his car. He also submitted that offering the learners wine during the supper that there was nothing wrong with that, as this happened in many households where children had drinks with their parents.
28. Two learners, both in grade 12 and 18 years old, Mr Kayron Prins And Mr Justin McMillan testified that they had on occasion stayed over in the home of Mr Skippers but nothing untoward ever happened. They acknowledged however that they were not present during the alleged incident in August 2019.
29. In closing arguments on behalf of Mr Skippers it was submitted he pleaded not guilty to the charge but it was noted that he did not offer a bare denial on charge 2, and testified that the possibility existed that he could have, given the circumstances on the day, have touched learner B, but definitely not to commit an act of sexual assault. He did offer a bare denial on charge 1 as it relates to the allegations made by learner A.
30. Referring to a Wikipedia definition of sexual assault and the British Sexual Offences Act 2003 it was submitted that a sexual assault is defined as an instance where there is the intentional touching of another person, the touching is sexual and the other person does not consent to the touching, and the person touching does not reasonably believe that the other person consents. The South African Criminal Law Sexual Offences and Related Matters amendment Act created the offence of sexual assault, replacing a common-law offence of indecent assault. "Sexual assault" is defined as the unlawful and intentional sexual violation of another person without their consent. The Act's definition of "sexual violation" incorporates a number of sexual acts, including any genital contact that does not amount to penetration as well as any contact with the mouth designed to cause sexual arousal. Non-consensual acts that involve actual penetration are rape rather than sexual assault.
31. It is submitted that in order for the employee to be found guilty of sexual assault in this instance, on the acknowledgement that “the possibility existed that he could given the circumstances on the day, have touched Learner B on the thigh in an attempt at getting his attention,..” certain elements are sought to be met. One such key element is that of intention, as is clear in considered the reading of the above. That intention has both a subjective and an objective test. Intention is an enquiry into the subjective state of mind of an accused at the time of the alleged offence. Intention it is expressed then, is concerned ultimately with what an accused foresaw, it is not what the accused ought to have foreseen or should have foreseen. Therefor it is absurd to speak of an accused having to reasonably have foreseen, because this conflates the objective test perspective of what is reasonable with the purely subjective concern of the test of intention. It is clear that from testimony by the employee, that in the possible event of having touched “learner B” on his thigh, there was no sexual intention in the action. The further argument is that it is clear from evidence presented, that the pattern of conduct from the employee is inconsistent with his intention to have sexually assaulted the learner.
32. It is further submitted that one of the rules of evidence traditionally provided that the evidence of a single witness should be treated with caution. Regarding charge 1 involving Learner A, the employee pleads not guilty to the charge. The testimony of the learner as witness was fraught with inconsistency and non-corroboration and in conflict with testimony presented by the other learners. The witnesses’ testimony were contradictory on quite a number of issues relating to the charges, as well as incidents ( referring to the incident specifically where it is alleged that the employee touched the private parts of Learner B), although no charge was brought against the employee in this regard. The evidence presented by the witnesses was not credible or reliable to sustain a guilty finding on a balance of probabilities.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
33. The disciplinary charges levelled at Mr Skippers as noted is of alleged misconduct, being the sexual assault of learners. It should also be noted that these learners are all minors, and two of the learners were only 13 years old when the incidents occurred. It is for the Employer to prove his guilt of the charge on a balance of probabilities. If he is found to be guilty, an appropriate sanction must be imposed. Considering that these offences relate to the sexual assault of a learner in terms of Section 17(b) of the Employment of Educators Act 76 of 1998, there are very specific considerations for an arbitrator. Where an educator is guilty of misconduct in terms of section 17 the sanction of dismissal is mandatory and an arbitrator has no discretion to impose any other sanction, irrespective of mitigating circumstances.
34. A further consideration, which is also acknowledged in Collective Agreement 3 of 2018 in the ELRC is that in dealing with matters of this kind according to Section 2 28(2) of the Constitution of South Africa, the best interests of the child should be paramount. In the practice note 1 of 2018 issued by the ELRC, It is noted that the Constitutional Court has held that Section 28(2) of the Constitution imposes an obligation 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. Statutes must be interpreted and the common law developed in a manner that favours protecting and advancing the interests of children. Courts and arbitrators are bound to give consideration to the effect their decisions will have on the lives of children; not only the life of the child who is a victim of sexual misconduct, but also the lives of learners in general who have right to be protected against sexual abuse from educators.
35. The employee Mr Skippers argued that he was not guilty of the charges, and submitted that such a finding should be made based on certain key premises, one being the probability of the different versions of the alleged incidents, the principle of the law of evidence and the credibility of witnesses. in terms of legal principles. It was strongly argued that there is no basis to find that there was any intent from the employee to commit an act of sexual assault, or even that he may reasonably have foreseen, even where the employee had acknowledged that he may have accidentally touched the learner.
36. As noted in the ELRC practice note the elements of sexual assault are, a) conduct of a sexual nature, b) which results in the victim's sexual integrity being impaired, or inspiring a belief that it will be impaired, c) unlawfulness, meaning that there must not be a justification ground for the action, such as for example the consent of the victim and d) intention to commit the misconduct, in other words accidental unintentional bodily contact is excluded from the definition.
37. The test to be applied In determining whether conduct has a 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 it occurred words and gestures accompanying the act and all other circumstances surrounding the conduct will be relevant, 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 including other forms of intentional conduct of a sexual nature, such as kissing on the lips and touching or caressing of buttocks or breasts of a victim.
38. Without repeating all the evidence submitted by the learners, I do find that there is sufficient evidence to determine that the employee Mr Skippers touched the buttocks and private parts of learners and I do not find that this happened unintentionally. Learner B, the victim and key witness in respect of the charge 2 was only 13 years old at the time of the incident and I find that when he testified his testimony was clear and concise and when cross-questioned he was not swayed. His evidence was also corroborated on the key aspects of the allegation of being touched on his penis and slapped on the buttocks by other learners who were with him in the bathroom. Those who saw him being touched on his private parts were equally convinced that this was just not an accidental incident. I also find that the demeanor of Learner B when he testified was that of a child who is distraught by what happened to him and the fact that he did not immediately report the matter, but only opened up when the matter was investigated some 6 months later does not in any way diminish his evidence.
39. The contradictions that the employee refers to is in relation to issues such as whether all the learners were in the bathroom at that time, or only 4 of the learners, as there was also evidence that learner A was not in the bathroom at that time, it does not change the key aspects relating to the assault of learner B. It should be noted that there is no statutory requirement in a law that a child's evidence always has to be corroborated. Determining the weight to be satisfied with the child's evidence, the trustworthiness of a young witness depends on factors such as his ability to observe, re-collect and narrate in respect of the specific matter to which he is required to testify, as per Woji v Santam Insurance Co Ltd (1981) (1) SA 1020. Having considered leaner B’s testimony, I find that he was a credible and trustworthy witness. In the matter of Old Mutual Life Insurance SA v Makanda and Others (JR 1246/18 (2019) ZALCJHB 285, it was also stated that Commissioners should not require corroborating evidence as evidence of sexual offences, as that would elevate the test to that of beyond reasonable doubt.
40. Other contradictions that the employee refers to were contradictions from the learners as to who was sitting where, and who was lying on the bed and who did the employee fall onto when he entered the room later on that Friday evening. Regarding to what occurred in the room where the learners were sleeping there was no specific charge related to what occurred in the room where the leaners were supposed to sleep, as pointed out by the employee. However Mr Skippers on his own version stated that he fell onto learner D, after he had been tripped, did not dispute that he was drunk and just lay there after he fell and passed out, and slept on. Although evidence was submitted by learners that when this occurred and he fell onto learner D, he had touched learner D on his private parts, there was no specific charge and can not be considered in terms of determining whether he was guilty on the other charges. The evidence however around the particular circumstances of that Friday evening was that the employee was drinking wine all afternoon and became so drunk that he in fact fell down in the room and just lay there and fell asleep does provides a context of an educator who acted wholly inappropriately and irresponsibly, at a time that he as educator was in loco parentis. The state of the employee that evening also places a question mark about the credibility of his evidence, and the evidence of the two older learners that he called to testify on his behalf was not relevant in respect of the circumstances and events of that evening.
41. Regarding the argument by the employee that he may have inadvertently or accidentally touched learner B and that he had no sexual intention and was therefore unaware that his actions were inappropriate I do not find it convincing considering what I have stated above. It should also be noted that in the matter of Pillay v South African Postal Services (D 407/10) (2012) ZALCD 21 the Court held that the commissioner’s conclusion that the employee had touchy mannerisms and was unaware of his actions and therefore did not have the requisite intention to commit sexual harassment, was wrong in law. The award was set aside and substituted with an award that the employee had committed sexual-harassment.
42. Having considered all the evidence in relation to Charge 2 involving learner B I find that as referred to in Marapula & others v Consteen (Pty) Ltd (1999) 8 BLLR 829 LAC it was held that the employer’s onus is discharged if “the employer can show by credible evidence that its version is the more probable and acceptable version and it’s witnesses were credible”. I find that the employer’s evidence is credible and I find on a balance of probability that the employer has proven the allegations that the applicant is guilty of the charge of sexual assault.
43. Regarding Charge 1 in relation to the incident at the pub/club involving Learner A the employee argued that there is no convincing evidence and that the evidence of a single witness in that respect should be treated with caution. it should be noted that the cautionary rule is no longer applicable, as per the ruling in Director of Public Prosecutions v S (2000) SA 711 (T). An arbitrator should however still determine that the uncorroborated evidence is truthful on a balance of probability. Considering the totality of the evidence and that it was not disputed that Learner A, 15 years old and under age at that time, was invited into the vehicle of the employee and was offered beer to drink, whilst the employee and three friends were sitting drinking in a public parking area, again demonstrated the total disregards of the employee’s professional ethics as argued by the employer. Whilst it is acknowledged that this is not a charge that the employee faced, he was in a position of trust as an educator and inviting a learner of the age of 15 years to drink with him in the vehicle was totally inappropriate, and in fact unlawful.
44. As already noted above in Old Mutual Life Insurance v Makanda and Others (JR 1246/18) (2019) ZALCJHB 285, it was stated that the evidence of a complainant in sexual offences does not require corroborating evidence as that would elevate the test to that of beyond reasonable doubt. In the case of Compass Group Southern Africa (Pty) Ltd v CCMA & others (JR 633/16) the court pointed out that once the employer provides prima facie proof of the misconduct as alleged, the evidentiary burden shifts to the employee to prove his own defense. If the employee then fails to put up a defense or fails to prove his defense the employer’s prima facie proof of the misconduct, becomes conclusive proof and the employer has then discharged the overall onus that always rested with it. I find it significant that the employee testified that there were three friends with him and he could have called any of those three friends to rebut the evidence of the employer in this instance, but failed to do so. In the light of the above rulings I therefore find that the evidence presented by Learner A was not refuted and on a balance of probability I find that the employee was also guilty of Charge 1 and that he committed an offence of sexual assault of learner A.
RULING
45. The employee Mr Skippers is guilty of sexual assault.
46. Considering that I have found the employee Mr Skippers guilty of Section 17(b) offences of the Employment of Educators Act 76 of 1998, dismissal is the mandatory sanction. Mr Skippers is dismissed with immediate effect.
47. In terms of section 120 of the Children's Act, Act 38 of 2005, I find that the employee Mr Skippers is unsuitable to work with children. The ELRC as the administrators of this Sec 188A enquiry is there for entitled to provide for a further hearing or process for the parties to make submissions as to whether the Director General: Department of Social Development should be informed of these findings in terms of section 120 and 122 of the Children's Act, Act 38 of 2005.
ELRC SENIOR COMMISSIONER: Retief Olivier